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diff --git a/old/65363-0.txt b/old/65363-0.txt deleted file mode 100644 index 2441979..0000000 --- a/old/65363-0.txt +++ /dev/null @@ -1,29294 +0,0 @@ -The Project Gutenberg eBook of Magna Carta: A Commentary on the Great -Charter of King John, by William Sharp McKechnie - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: Magna Carta: A Commentary on the Great Charter of King John - With an Historical Introduction - -Author: William Sharp McKechnie - -Release Date: May 17, 2021 [eBook #65363] - -Language: English - -Character set encoding: UTF-8 - -Produced by: KD Weeks and the Online Distributed Proofreading Team at - https://www.pgdp.net (This file was produced from images - generously made available by The Internet Archive) - -*** START OF THE PROJECT GUTENBERG EBOOK MAGNA CARTA: A COMMENTARY ON THE -GREAT CHARTER OF KING JOHN *** - ------------------------------------------------------------------------- - - Transcriber’s Note: - -This version of the text cannot represent certain typographical effects. -Italics are delimited with the ‘_’ character as _italic_. Superscripted -characters are denoted with a carat (‘^’), and if more than one -character is raised, they are enclosed with ‘{ }’. - -Footnotes have been moved to follow the paragraphs in which they are -referenced. - -Minor errors, attributable to the printer, have been corrected. Please -see the transcriber’s note at the end of this text for details regarding -the handling of any textual issues encountered during its preparation. - - - - - - - - - MAGNA CARTA - - A COMMENTARY ON THE GREAT CHARTER - OF KING JOHN - - - - - - - - - PUBLISHED BY - - JAMES MACLEHOSE AND SONS, GLASGOW - =Publishers to the University.= - - --- - - MACMILLAN AND CO., LTD., LONDON. - - _New York_, _The Macmillan Co._ - _London_, _Simpkin, Hamilton and Co._ - _Cambridge_, _Macmillan and Bowes_. - _Edinburgh_, _Douglas and Foulis_. - _Sydney_, _Angus and Robertson_. - - MCMV. - - MAGNA CARTA - A COMMENTARY ON THE GREAT - CHARTER OF KING JOHN - - WITH AN - HISTORICAL INTRODUCTION - - BY - - WILLIAM SHARP McKECHNIE - - M.A., LL.B., D.PHIL. - - LECTURER ON CONSTITUTIONAL LAW AND HISTORY IN THE UNIVERSITY OF GLASGOW - AUTHOR OF ‘THE STATE AND THE INDIVIDUAL; AN INTRODUCTION TO POLITICAL - SCIENCE’ - - - - - - - - - GLASGOW - JAMES MACLEHOSE AND SONS - PUBLISHERS TO THE UNIVERSITY - 1905 - - - - - - - - - GLASGOW: PRINTED AT THE UNIVERSITY PRESS - BY ROBERT MACLEHOSE AND CO. LTD. - - - - - - - - - TO THE - - MEMORY OF MY FATHER - - WILLIAM McKECHNIE, M.D. - - BORN 1ST APRIL, 1814 - - DIED 2ND SEPTEMBER, 1887 - - PREFACE - - -No Commentary upon Magna Carta has hitherto been written from the -standpoint of modern research. No serious attempt has yet been made to -supersede, or even adequately to supplement, the works of Coke and -Richard Thomson, published respectively in 1642 and 1829, and now -hopelessly out of date. This lack of enterprise may be due in part to a -natural reluctance to undertake so laborious a task, but seems also to -suggest tacit acquiescence in the opinion of Bishop Stubbs that no -separate commentary is required, since “the whole of the constitutional -history of England is little more than a commentary on Magna Carta.” -Yet, for that very reason the Great Charter is surely worthy to be made -the subject of special and detailed study, since few documents can -compete with it in the variety and interest of its contents, in the -vividness of its historical setting, or in the influence it has -exercised on the struggle for constitutional liberty. That this -conspicuous gap in our historical and legal literature should have -remained so long unfilled is the more remarkable in view of the great -advance, amounting almost to a revolution, which has been effected since -Coke and Thomson wrote. Within the last twenty years, in especial, a -wealth of new material has been explored with notable results. -Discoveries have been made, profoundly affecting our views of every -branch of law, every organ of government, and every aspect of social and -individual life in medieval England. Nothing, however, has hitherto been -done towards applying to the systematic elucidation of Magna Carta the -new stores of knowledge thus accumulated. - -With this object in view, I have endeavoured, throughout several years -of hard, but congenial work, to collect, sift, and arrange the mass of -evidence, drawn from many scattered sources, capable of throwing light -upon John’s Great Charter. The results have now been condensed into the -Commentary which fills two thirds of the present volume. This attempt to -explain, point by point, the sixty-three chapters of Magna Carta, -embracing, as these do, every topic—legal, political, economic and -social—in which John and his barons felt a vital interest, has involved -an analysis in some detail of the whole public and private life of -England during the thirteenth century. The Commentary is preceded by a -Historical Introduction, which describes the events leading to the -crisis of 1215, analyzes the grievances which stirred the barons to -revolt, discusses the contents and characteristics of the Charter, -traces its connection with the subsequent course of English history, and -gives some account of previous editions and commentaries. - -While reference has been made throughout to original sources where these -were available, advantage has been freely taken of the labours of -others. If a debt of gratitude requires to be here acknowledged to -previous commentators, a far deeper debt is due to many scholars who -have, within recent years, by their labours in various fields not -directly connected with Magna Carta, incidentally thrown light on topics -of which the Charter treats. Of Bishop Stubbs it is almost unnecessary -to speak, since his works form the common starting-point of all -historians and constitutional lawyers of the present generation. Readers -versed in modern literature will readily trace the influence of Prof. -Maitland, Mr. J. Horace Round, Sir Frederic Pollock, Mr. L. O. Pike, and -Prof. Prothero; while the numerous other authorities laid under -contribution are referred to in the foot-notes and the appended -bibliography. Frequent reference has been made to two independent and -scholarly histories of the reign of John which have recently -appeared—Miss Norgate’s _John Lackland_, and Sir James H. Ramsay’s -_Angevin Empire_. Of the older books dealing directly with the subject -in hand, Sir William Blackstone’s _Great Charter_ has been found the -best; while among modern works the _Chartes_ of M. Charles Bémont is the -most valuable. The inexhaustible stores of Madox’s _History of the -Exchequer_ have also been freely drawn upon. - -While these pages were passing through the press a brilliant essay by -Mr. Edward Jenks appeared in the pages of _The Independent Review_ for -November 1904, whose title _The Myth of Magna Carta_ indicates the -unconventional and iconoclastic lines on which it proceeds. He argues -with much force that the Charter was the product of the selfish action -of the barons pressing their own interests, and not of any disinterested -or national movement; that it was not, by any means, “a great landmark -in history”; and that, instead of proving a material help in England’s -advance towards constitutional freedom, it was rather “a stumbling block -in the path of progress,” being entirely feudal and reactionary in its -intention and effects. Finally, for most of the popular misapprehensions -concerning it, he holds Sir Edward Coke responsible. How far the present -writer is in agreement with these opinions will appear from the -following pages: but Mr. Jenks’ position would seem to require -modification in at least three respects: (1) A few of the provisions of -John’s Charter are by no means of a reactionary nature. (2) Coke cannot -be credited with the initiation of all, or even most, of the popular -fallacies which have come, in the course of centuries, to cluster so -thickly round the Charter. (3) Mr. Jenks, perhaps, undervalues the -importance of traditional interpretations which, even when based on -insecure historical foundations, are shown in the sequel to have proved -of supreme value in the battle of freedom. - -I am indebted to four friends who have kindly read my proof sheets, to -Mr. W. R. J. Gray, and Mr. Robert A. Moody, whose good offices in this -direction are not now rendered for the first time, and to two of the -members of my Honours Class of 1903-4, Mr. A. C. Black, Jun., and Mr. D. -B. Mungo, all of whom have been zealous in help and fertile in -suggestion. - - KNIGHTSWOOD, ELDERSLIE, -RENFREWSHIRE, _6th February, 1905_ - - - - - CONTENTS - - HISTORICAL INTRODUCTION. - - - PART I. EVENTS LEADING TO MAGNA CARTA: - - PAGE - - I. William I. to Henry II.: Main Problem, the 1 - Monarchy, - - II. William I. to Henry II.: Problem of Local 16 - Government, - - III. William I. to Henry II.: Problem of Church and 20 - State, - - IV. Richard I. and John, 23 - - V. The Years of Crisis, 33 - - VI. Runnymede, and after, 43 - - - PART II. FEUDAL GRIEVANCES AND MAGNA CARTA: - - I. The Immediate Causes of the Crisis, 58 - - II. The Crown and Feudal Obligations, 64 - - III. Royal Justice and Feudal Justice, 93 - - PART III. MAGNA CARTA: ITS FORM AND CONTENTS: - - I. Its Prototypes: Earlier Charters, 113 - - II. Magna Carta: Its Form and Juridical Nature, 123 - - III. Magna Carta: Its Contents and Characteristics, 129 - - IV. Magna Carta: An Estimate of its Value, 144 - - V. Magna Carta: Its Defects, 150 - - VI. Magna Carta: Value of Traditional Interpretations, 154 - - VII. Magna Carta: Its Traditional Relation to Trial by 158 - Jury, - - PART IV. HISTORICAL SEQUEL TO MAGNA CARTA: - - I. Reissues and Confirmations of the Great Charter, 164 - - II. Magna Carta and the Reforms of Edward I., 186 - - - PART V. MAGNA CARTA; ORIGINAL VERSIONS, PRINTED EDITIONS, AND - COMMENTARIES: - - I. Manuscripts of Magna Carta and Relative Documents, 194 - - II. Previous Editions and Commentaries, 205 - - - MAGNA CARTA: - TEXT, TRANSLATION, COMMENTARY. - - - PREAMBLE. - - I. The King’s Title. II. The names of the consenting 215 - Nobles. III. The Reasons of the Grant, - - - CHAPTER ONE. - - I. The Rights of the National Church: (1) _Quod 222 - Anglicana ecclesia libera sit_; (2) Canonical - Election. II. Civil and Political Rights, - - CHAPTER TWO. - - I. Assessment of Reliefs. II. Units of Assessment: (1) 229 - _Feodum militis integrum_; (2) _Baronia integra_; (3) - _Baronia comitis integra._ III. Liability of Church - Property to Reliefs, - - - CHAPTER THREE. - - No Relief after Wardship, 239 - - - CHAPTER FOUR. - - Wardship: (1) The Definition of Waste; (2) The 241 - Punishment of Wasteful Guardians; (3) Provision - against Recurrence, - - - CHAPTER FIVE. - - I. The Obligations of the Warden of a Lay-fief. II. 246 - Wardship over Vacant Sees, - - CHAPTER SIX. - - The Marriage of Wards, 250 - - - CHAPTER SEVEN. - - I. The Widow’s Share of Real Estate: (1) Dower; (2) 253 - _Maritagium_; (3) _Hereditas._ II. Her Share of - Personal Estate. III. Provision for her Immediate - Needs: (1) Quarantine; (2) Estovers of Common, - - - CHAPTER EIGHT. - - Marriage of Widows, 260 - - - CHAPTER NINE. - - Procedure for Enforcing Payment of Debts, 261 - - - CHAPTER TEN. - - Usury. I. The History of the Jews in England. II. Legal 265 - Position of the Jews, - - CHAPTER ELEVEN. - - Widows and Children of Debtors to be Protected against 273 - Creditors, - - CHAPTER TWELVE. - - I. Protection of Crown Tenants from Arbitrary Exactions: 274 - (1) Scutage; (2) Feudal Aids. II. Protection of - Citizens of London: Aids and Tallages. III. Magna - Carta and the Theory of Parliamentary Taxation, - - - CHAPTER THIRTEEN. - - Liberties and Free Customs of London, 284 - - - CHAPTER FOURTEEN. - - Method of obtaining the Common Council of the Kingdom. 291 - I. Nature of the Summons. II. Composition of the - Council. III. Position of the “Minor Barons.” IV. - Representation. V. Powers and Functions of the - Council. VI. Rights of Majorities and Minorities, - - CHAPTER FIFTEEN. - - Restrictions on Mesne Lords taking Aids. I. Points of 301 - difference between tenants-in-chief and under-tenants. - II. The influence of Magna Carta upon later practice, - - - CHAPTER SIXTEEN. - - No one to perform greater service for a tenement than is 306 - due, - - - CHAPTER SEVENTEEN. - - Common Pleas. I. The Curia Regis as a Court of Law. II. 308 - Common Pleas and Royal Pleas. III. Effects of Magna - Carta on the Genesis of the three Courts of Common - Law. IV. Evolution of the Court of Common Pleas. V. - Erroneous Views, - - - CHAPTER EIGHTEEN. - - Petty Assizes. I. The Curia Regis and the Travelling 317 - Justices. II. The Nature and Origin of the three Petty - Assizes. III. The Assizes in 1215. IV. An Erroneous - View. V. Later History of the Justices of Assize, - - - CHAPTER NINETEEN. - - Procedure at Petty Assizes, 331 - - - CHAPTER TWENTY. - - Amercement. I. Three Stages of Criminal Law: (1) The 334 - blood-feud; (2) Fixed money-payments; (3) Amercements. - II. Magna Carta and Amercements: (1) Of the - Freeholder; (2) Of the Merchant; (3) Of the Villein; - (4) Fines and Amercements; (5) Contenement, - - - CHAPTER TWENTY-ONE. - - Amercement of Earls and Barons, 346 - - - CHAPTER TWENTY-TWO. - - Amercement of the Clergy, 349 - - - CHAPTER TWENTY-THREE. - - I. Origin of the Obligation to make Bridges. II. The 352 - King’s Rights of Falconry. III. Erroneous - Interpretations, - - - CHAPTER TWENTY-FOUR. - - I. Pleas of the Crown. II. Keeping and Trying Criminal 358 - Pleas. III. The Intention of Magna Carta. IV. An - Erroneous View. V. Local Magistrates under John: (1) - The Sheriff; (2) The Constable; (3) The Coroner; (4) - The Bailiff, - - - CHAPTER TWENTY-FIVE. - - Farms of Counties and Hundreds, 372 - - - CHAPTER TWENTY-SIX. - - Crown Debtors. I. Nature of the Grievance. II. The Right 376 - to Bequeath, - - - CHAPTER TWENTY-SEVEN. - - Intestate Succession, 382 - - - CHAPTER TWENTY-EIGHT. - - I. Purveyance in General. II. Branches of it restricted 385 - by Magna Carta. III. Its other Branches, - - - CHAPTER TWENTY-NINE. - - Castle-Guard, 390 - - - CHAPTER THIRTY. - - Purveyance of Horses and Carts, 392 - - - CHAPTER THIRTY-ONE. - - Purveyance of Timber, 393 - - - CHAPTER THIRTY-TWO. - - I. The Crown’s Claim to Felons’ Property: (1) Lands; (2) 394 - Chattels. II. Indictment, Conviction, and Attainder, - - - CHAPTER THIRTY-THREE. - - Obstructions to be removed from Rivers, 402 - - CHAPTER THIRTY-FOUR. - - The Writ “_Praecipe_.” I. Royal Writs and the Feudal 405 - Jurisdictions. II. Influence of this provision on - later legal Development, - - - CHAPTER THIRTY-FIVE. - - Standards of Weights and Measures, 414 - - - CHAPTER THIRTY-SIX. - - Writ _de Odio et Atia_. I. Trial by Combat prior to 417 - John’s Reign. II. The Writ of Life and Limbs. III. Its - Subsidiary Uses. IV. Later History of Appeal and - Battle, - - - CHAPTER THIRTY-SEVEN. - - Prerogative Wardship, 427 - - - CHAPTER THIRTY-EIGHT. - - No Bailiff to put anyone to his “law” without Witnesses. 430 - I. Probable Object of this Chapter. II. Medieval - Interpretations. III. Modern Interpretations, - - - CHAPTER THIRTY-NINE. - - I. Its Main Object: (1) Judgment must precede Execution; 436 - (2) _Per judicium parium_; (3) _Per legem terrae_; (4) - Meaning of "_vel_." II. The scope of the Protection - afforded. III. What classes of men enjoyed it. IV. - Reactionary Aspects. V. The Genesis of this Chapter. - VI. Later History of "Judgment of Peers." VII. - Erroneous Interpretations, - - - CHAPTER FORTY. - - Justice not to be Sold, Refused, or Delayed, 459 - - - CHAPTER FORTY-ONE. - - Freedom of Trade. I. Magna Carta favours Alien 463 - Merchants. II. Customs and Tolls. III. The Motives - prompting this Chapter. IV. English Boroughs and - Merchant Strangers, - - - CHAPTER FORTY-TWO. - - Liberty to leave the Kingdom—Writs _ne exeat regno_, 473 - - CHAPTER FORTY-THREE. - - Tenants of Escheated Baronies, 478 - - - CHAPTER FORTY-FOUR. - - I. The Royal Forests. II. Their Origin. III. Forest 482 - Officials. IV. Forest Courts. V. Chases, Parks, and - Warrens. VI. Forest Rights and Forest Grievances. VII. - Later History of Forests and Forest Laws, - - - CHAPTER FORTY-FIVE. - - Justices, Castellans, Sheriffs, and Bailiffs to be 502 - law-abiding men, - - - CHAPTER FORTY-SIX. - - Wardship over Vacant Abbeys, 505 - - - CHAPTER FORTY-SEVEN. - - Forests and River-banks encroached upon by John, 507 - - - CHAPTER FORTY-EIGHT. - - Procedure for abolishing Evil Customs of Forests and 511 - elsewhere, - - - CHAPTER FORTY-NINE. - - Hostages and Charters to be restored, 514 - - - CHAPTER FIFTY. - - List of those excluded from offices of trust in future, 518 - - - CHAPTER FIFTY-ONE. - - Expulsion of Foreign Mercenaries, 522 - - - CHAPTER FIFTY-TWO. - - Procedure for redressing wrongful Disseisins, 523 - - - CHAPTER FIFTY-THREE. - - A Crusader’s Respite allowed to John, 525 - - - CHAPTER FIFTY-FOUR. - - Right of Appeal by Women, 527 - - - CHAPTER FIFTY-FIVE. - - Remission of Unjust Fines and Amercements, 530 - - - CHAPTER FIFTY-SIX. - - Redress for Welshmen wrongfully disseised by John, 533 - - - CHAPTER FIFTY-SEVEN. - - Redress for Welshmen wrongfully disseised by Henry II. 534 - or Richard I., - - - CHAPTER FIFTY-EIGHT. - - Welsh Hostages and Charters to be restored, 536 - - - CHAPTER FIFTY-NINE. - - Justice to be done to Alexander, King of Scots; 537 - Relations of England and Scotland, - - - CHAPTER SIXTY. - - Extension of Provisions of Charter to Tenants of Mesne 543 - Lords, - - - CHAPTER SIXTY-ONE. - - The _Forma Securitatis_ or Legal Sanction of the 545 - Charter. I. Nature of the Security. II. Minor Details - of the Scheme: (1) Twenty-five Executors; (2) A quorum - may act; (3) Sub-committee of four; (4) Local Agents; - (5) The Co-operation of the Public. III. Criticism of - the Scheme. IV. Dr. Gneist’s Opinion. V. Failure of - the Scheme, - - - CHAPTER SIXTY-TWO. - - Prelates to issue Letters Testimonial, 562 - - - CHAPTER SIXTY-THREE. - Formal Clauses, 563 - - APPENDIX. - DOCUMENTS RELATIVE TO, OR ILLUSTRATIVE OF, JOHN’S MAGNA - CARTA: - - I. The Charter of Liberties of Henry I. (1100), 565 - - II. The Second or Oxford Charter of Stephen (1136), 567 - - III. Charter of Henry II. (_circa_ 1154), 568 - - IV. The so-called “Unknown Charter of Liberties,” 569 - - V. The Articles of the Barons (1215), 570 - - VI. Writs Supplementary of John’s Great Charter, 576 - - VII. The Great Charter of Henry III. (Second Re-issue, 580 - 6th November, 1217), - - VIII. Carta de Foresta, 586 - - SELECT BIBLIOGRAPHY AND LIST OF AUTHORITIES REFERRED TO, 590 - - INDEX TO STATUTES, 597 - - GENERAL INDEX 599 - - HISTORICAL INTRODUCTION. - - - - - PART I. - EVENTS LEADING TO MAGNA CARTA. - - -The Great Charter is too often treated as the outcome of purely -accidental causes. Students of its origin are sometimes content to -explain it as a mere tangible product of the successful resistance -called forth by the tyrannies of King John. That monarch’s personal -misdeeds, it is maintained, goaded into determined action a fierce -unflinching opposition which never rested until it had achieved success; -and the outcome of this success was the winning of the Great Charter of -Liberties. The moving causes of events of such tremendous moment are -thus sought in the characteristics and vices of one man. If John had -never lived and sinned, so it would appear, the foundations of English -freedom would never have been laid. - -Such shallow views of history unnecessarily belittle the magnitude and -inevitable nature of the sequence of causes and effects upon which great -issues really depend. The compelling logic of events forces a way for -its own fulfilment, independent of the caprices, aims and ambitions of -individual men. The incidents of John’s career are the occasions, not -the causes, of the great national movement which laid the foundations of -English liberties. The origin of Magna Carta lies too deep to be -determined by any purely contingent or accidental phenomena. It is as -unwise as it is unnecessary to suppose that the course of constitutional -development in England was suddenly and violently wrested into a -completely new channel, merely because of the incapacity or misdeeds of -the temporary occupant of the throne. The source of the discontent -fanned to flame by John’s oppressions must be sought in earlier reigns. -The genesis of the Charter cannot be understood apart from its -historical antecedents, and these are inextricably bound up with the -whole story how England grew to be a nation. - -In expounding the origin of the Charter, it is necessary briefly to -narrate how the scattered Anglo-Saxon and Danish tribes and territories, -originally unconnected, were gradually welded together and grew into -England; how this fusion was made permanent by the growth of a strong -form of centralized monarchical government which crushed out all -attempts at local independence, and threatened to become the most -absolute despotism in Europe; and how, finally, the Crown, because of -the very plenitude of its power, challenged opposition and called into -play forces which set limits to royal prerogatives and royal -aggressions, and at the same time laid the foundations of the reign of -law. A short survey of the early history of England forms a necessary -preliminary to a right understanding of Magna Carta. Such a survey makes -prominent two leading movements, one of which succeeds the other; -namely, the establishment of a strong monarchy able to bring order out -of anarchy, and the subsequent establishment of safeguards to prevent -this source of order degenerating into an unrestrained tyranny, and so -crushing out not merely anarchy but legitimate freedom as well. The -later movement, in favour of liberty and the Great Charter, was the -natural complement, and, in part, the consequence of the earlier -movement in the direction of a strong government able to enforce peace. -In historical sequence, order precedes freedom. - -These two problems, each forming the counterpart of the other, -necessarily arise in the history of every nation, and in every age; the -problem of _order_, or how to found a central government strong enough -to suppress anarchy, and the problem of _freedom_, or how to set limits -to an autocracy threatening to overshadow individual liberty. Neither of -these problems can ever be ignored, not even in the twentieth century; -although to-day the accumulated political experience of ages has enabled -modern nations, such at least as are sufficiently educated in -self-government, to thrust them into the background, out of view. Deep -political insight may still be acknowledged in Æsop’s fable of Jupiter -and the frogs. King Log proves as ineffective against foreign invasion -as he is void of offence to domestic freedom; King Stork secures the -triumph of his subjects in time of war, but devours them in time of -peace. All nations in their early efforts to obtain an efficient -government have to choose between these two types of ruler—between an -executive, harmless but weak; and one powerful enough effectively to -direct the business of government at home and abroad, but ready to turn -the powers entrusted to him for the good of all, to his own selfish uses -and the trampling out of his subjects’ liberties. - -On the whole, the miseries of the long centuries of Anglo-Saxon rule -were mainly the outcome of the Crown’s weakness; while, at the Norman -Conquest, England escaped from the mild sceptre of inefficiency, only to -fall under the cruel sceptre of selfish strength. Yet the able kings of -the new dynasty, powerful as they were, had to struggle in order to -maintain their supremacy; for, although the conquered English races were -incapable of concerted resistance against their Norman masters, the -unruly alien barons fought vigorously to shake off the royal control. - -During a century of Norman rule, constant warfare was waged between two -great principles—the monarchic standing on the whole for order, seeking -to crush anarchy, and the oligarchic or baronial, standing on the whole -for liberty, protesting against the tyranny of autocratic power. -Sometimes one of these was in the ascendant; sometimes the other. The -history of medieval England is the swing of the pendulum between these -two extremes. - -The main plot, then, of early English history, centres round the attempt -to found a strong monarchy, and yet to set limits to its strength. With -this main plot subordinate plots are interwoven. Chief among these must -be reckoned the necessity of defining the relations of the central to -the local government, and the need of an acknowledged frontier between -the domains of Church and State. On the other hand, all that interesting -group of problems connected with the _ideal form_ of government, much -discussed in the days of Aristotle as in our own, is notably absent, -never having been forced by the logic of events upon the mind of -medieval Europe. Monarchy was apparently assumed as the only possible -scheme of government; while the relative merits of aristocracy and -democracy, or of the much-vaunted constitution known as “mixed,” were -not canvassed, since these forms of constitution were not within the -sphere of practical politics. - -The student of history will do well to concentrate his attention at -first on the main problem, while viewing the subsidiary ones in their -relations to the central current. - - I. William I. to Henry II.—Main Problem: the Monarchy. - -The attention of the most casual student is arrested by the -consideration of the difficulties which surrounded the English nation in -its early struggles for bare existence. The great problem was, first, -how to get itself into being, and thereafter how to guard against the -forces of disintegration, which strove without rest to tear it to pieces -again. The dawn of English history shows the beginning of that long slow -process of consolidation in which unconscious reason played a deeper -part than human will, whereby many discordant tribes and races, many -independent provinces, were crushed together into something bearing a -rude likeness to a united nation. Many forces converged in achieving -this result. The coercion of strong tribes over their weaker neighbours, -the pressure of outside foes, the growth of a body of law, and of public -opinion, the influence of religion in the direction of peace, all helped -to weld a chaos of incongruous and warring elements together. - -It is notable that each of the three influences, destined ultimately to -aid most materially in this process of unification, threatened at one -time to have a contrary effect. Thus the rivalries of the smaller -kingdoms tended at first towards a complete disruption, before Wessex -succeeded in asserting an undisputed supremacy; the Christianizing of -England partly by Celtic missionaries from the north and partly by -emissaries from Rome threatened to split the country into two, until -their mutual rivalries were stilled after the Synod of Whitby in 664; -and one effect of the incursion of the Danes was to create an absolute -barrier between the lands that lay on either side of Watling Street, -before the whole country succumbed to the unifying pressure of Cnut and -his sons. - -The stern discipline of foreign conquest was required to make national -unity possible; and, with the restoration of the old Wessex dynasty in -the person of Edward Confessor, the forces of disintegration again made -headway. England threatened once more to fall to pieces, but at the -critical and appointed time the iron rule of the Normans came to -complete what the Danes had begun half a century earlier. As the -weakness of the Anglo-Saxon kings and the disruption of the country had -gone hand in hand, so the process which, after the Conquest, made -England one, was identical with the process which established the throne -of the new dynasty on a strong, enduring basis. The complete unification -of England was the result of the Norman despotism. - -Thereafter, the strength of its monarchy was what rendered England -unique in medieval Europe. Three great kings in especial contributed, by -their ability and indomitable power of will, to this result—William the -Conqueror, Henry Beauclerk, and Henry Plantagenet. In a sense, the work -of all three was the same, namely, to build up the central authority -against the disintegrating effects of feudal anarchy; but the policy of -each was necessarily modified by changing times and needs. The -foundations of the whole were laid by the Conqueror, whose character and -circumstances combined to afford him an opportunity unparalleled in -history. The difficulties of his task, and the methods by which he -carried it to a successful issue, are best understood in relation to the -nature of the opposition he had to dread. Feudalism was the great -current of the age—a tide formed by many converging streams, all flowing -in the same direction, unreasoning like the blind powers of Nature, -carrying away and submerging every obstacle in its path. In other parts -of Europe—in Germany, France, and Italy, as in Scotland—the ablest -monarchs found their thrones undermined by this feudal current. In -England alone the monarchy made headway against the flood. William I. -wisely refrained from any mad attempt to stay the torrent; but, while -accepting it, he quietly subjected it to his own purposes. He carefully -watched and modified the tendencies making for feudalism, which he found -in England on his arrival, and he profoundly altered the feudal usages -and rights which his followers transplanted from the Norman soil. The -special expedients used by him for this purpose are well known, and are -all closely connected with his crafty policy of balancing the -Anglo-Saxon basis of his rule against the imported Norman -superstructure, and of selecting at his own discretion such elements as -suited him in either. He encouraged the adoption or intensification in -England of feudalism, considered as a system of land tenure and as a -system of social distinctions based on the possession of land; but he -successfully endeavoured to check the evils of its unrestrained growth -in its other equally important aspects, namely, as a system of local -government seeking to be independent of the Crown, and as a system of -jurisdiction. As a political system, it was always a subject of -suspicion to William, for he viewed it in the light of his double -experience in Normandy as feudal lord and feudal vassal. - -William’s policy was one of balancing. His whole career in England was -characteristically inaugurated by his care to support his claim to the -throne on a double basis. Not content to depend merely on the right of -conquest, he insisted on having his title confirmed by a body claiming -to represent the old Witenagemot of England, and he further alleged that -he had been formally named as successor by his kinsman, Edward -Confessor, a nomination strengthened by the renunciation of Harold in -his favour. Thus, to his Norman followers claiming to have set him by -force of arms on his throne, William might point to the form of election -by the Witan, while for his English subjects, claiming to have elected -him, the presence of the foreign troops was an even more effective -argument. Throughout his reign, his plan was to balance the old English -laws and institutions against the new Norman ones, with himself as -umpire over all. Thus he retained whatever suited him in Anglo-Saxon -customs. Roger of Hoveden tells us how, in the fourth year of his reign, -twelve of the subject English from each county—noble, wise, and learned -in the laws—were summoned to recite on oath the old customs of the -land.[1] He retained, too, the old popular moots or meetings of the -shire and hundred as a counterpoise to the feudal jurisdictions; the -fyrd or militia of all free men as a set-off to the feudal levy; and -such of the incidents of the old Anglo-Saxon tenures of land as met his -requirements. - ------ - -Footnote 1: - - R. Hoveden, _Chronica_, II. 218. - ------ - -Thus the subject English, with their customs and ancient institutions, -were used as expedients for modifying the excesses of feudalism. -William, however, did not shrink from innovations where these suited his -purpose. The great earldoms into which England had been divided, even -down to the Norman Conquest, were abolished. New earldoms were indeed -created, but on an entirely different basis. Even the great officers, -subsequently known as Earls Palatine, always few in number, never -attained either to the extent of territory or to the independence of the -Anglo-Saxon ealdormen. William was chary of creating even ordinary -earls, and such as he did create soon became mere holders of empty -titles of honour, while they found themselves ousted from all real power -by the Norman _vicecomites_ or sheriffs. No English earl was a “count” -in the continental sense (that is, a real ruler of a “county”). Further, -no earl was allowed to hold too large an estate within his titular -shire; and William, while compelled to reward his followers’ services -with great possessions, was careful that these should be split up in -widely scattered districts of his Kingdom. Thus the great feudatories -were prevented from consolidating their resources against the Crown. - -Various ingenious devices were used for checking the feudal excesses so -prevalent on the continent. Rights of private war, coinage, and -castle-building, were jealously watched and circumscribed; while private -jurisdictions, although tolerated as a necessary evil, were kept within -bounds. The manor was in England the normal unit of seignorial -jurisdiction, and higher courts of Honours were so exceptional as to be -a negligible quantity. No feudal appeal lay from the manorial court of -one magnate to that of his over-lord, while, in later reigns at least, -appeals were encouraged to the _Curia Regis_. Almost at the close of -William’s reign a new encroachment upon the feudal spirit was -accomplished, when the Conqueror on Salisbury Plain compelled all -freeholders to take an oath of homage and fealty personally to the king. - -The results of this policy have been well summarized as “a strong -monarchy, a relatively weak baronage, and a homogeneous people.” - -During the reign of William II. (1087-1100) the constitution made no -conspicuous advance. The foundations had been laid; but Rufus was more -intent on his hunting and enjoyments, than on the deeper matters of -statecraft. Some minor details of feudal organization were doubtless -settled and defined in these thirteen years by the King’s Treasurer, -Ralph Flambard; but the extent to which he innovated on the practice of -the elder William is matter of dispute. On the whole, the reign must be -considered as a time of rest between two periods of advance. - -Henry I. (1100-35) took up, with far-seeing statesman’s eye and much -vigour, the work of consolidation. His policy shows an advance upon that -of his father. William had contented himself with controlling and -curbing the main vices of feudalism, while he played off against it the -English native institutions. Henry went further, and introduced within -the _Curia Regis_ itself a new class of men representing a new principle -of government. The great offices of state, previously held by men of -baronial rank, were now filled with creatures of Henry’s own, men of -humble birth, whose merit had raised them to his favour, and whose only -title to power lay in his goodwill. The employment of this strictly -professional class of administrators was one of the chief contributions -made by Henry to the growth of the constitution. His other great -achievement was the organization of the Exchequer, primarily as a source -of royal revenue, but soon found useful as a means of making his will -felt in every corner of England. For this great work he was fortunate to -secure in Roger, Bishop of Salisbury, the help of a man who combined -genius with painstaking ability. At the Exchequer, as organized by the -King and his minister, the sheriff of each county twice a year, at -Easter and at Michaelmas, rendered account of every payment that had -passed through his hands. His balance was adjusted before all the great -officers of the King’s household, who subjected his accounts to close -scrutiny and criticism. Official records were drawn up, one of which—the -famous Pipe Roll of 1130,—is extant at the present day. As the sums -received by the sheriff affected every class of society in town and -country, these half-yearly audits enabled the King’s advisers to -scrutinize the lives and conduct of every one of importance in the land. -These half-yearly investigations were rendered more effective by the -existence at the Exchequer of a great record of every landed estate in -England. With this the sheriffs’ returns could be checked and compared. -Henry’s Exchequer thus found one of its most powerful weapons in the -great Domesday Survey, the most enduring proof of the statesmanship of -the Conqueror, by whose orders and under whose direction it had been -compiled. - -The central scrutiny conducted within the two chambers of the Exchequer -was supplemented by occasional inspections conducted in each county. The -King’s representatives, including among them usually some of the -officers whose duty it was to preside over the half-yearly audit, -visited, at intervals still irregular, the various shires. These Eyres, -as they were called, were at first chiefly undertaken for financial -purposes. The main object was to check, on the scene of their labours, -the statements made at Westminster by the various sheriffs. From the -first, such financial investigations necessarily involved the trial of -pleas. Complaints of oppression at the hands of the local tyrant of the -county were naturally made and determined on the spot; gradually, but -not until a later reign, the judicial business became equally important -with the financial, and ultimately even more important. - -Henry at his death in 1135 seemed to have carried nearly to completion -his congenial task of building a strong monarchy on the foundations laid -by William I. Much of his work was, however, for a time undone, while -all of it seemed in imminent danger of perishing for ever, because he -left no male heir of his body to succeed him on the throne. His -daughter’s claims were set aside by Stephen, the son of the Conqueror’s -daughter, and a cadet of the House of Blois, to whom Henry had played -the indulgent uncle, and who repaid his benefactor’s generosity by -constituting himself his heir. From the first moment of his reign, -Stephen proved unequal to the task of preserving the monarchy intact -from the wild forces that beat around the throne. His failure is -attributed by some to his personal characteristics, and by others to the -defective nature of his title, combined with the presence of a rival in -the field in the person of his cousin, Henry’s daughter, the ex-Empress -Matilda. The nineteen years of anarchy which nominally formed his reign -did nothing—and worse than nothing—to continue the work of his great -ancestors. The power of the Crown was humbled, and England was almost -torn in fragments by the selfish claims of rival feudal magnates to -local independence. - -With the accession of Henry II. (1154) the tide quickly turned, and -turned for good. - -Of the numerous steps taken by Henry Plantagenet to complete the work of -the earlier master-builders of the English monarchy, only a few need -here be mentioned. Ascending the throne in early manhood, he brought -with him a statesman’s instinct peculiar to himself, together with the -unconquerable energy common to his race. He rapidly overhauled every -existing institution and every branch of administration. The permanent -_Curia Regis_ was not only restored to efficient working order, but was -improved in each one of its many aspects—as the King’s household, as a -financial bureau, as the administrative centre of the entire kingdom, -and as the special vehicle of royal justice. The Exchequer, which was -indeed originally merely the _Curia_ in its financial aspect, received -the re-organization so urgently needed after the terrible strains to -which it had been subjected amid the quarrels of Stephen and Matilda. -The Pipe Rolls were revived and various minor reforms in financial -matters effected. All local courts (both the old popular courts of -hundred and county, and also the feudal jurisdictions) were brought -under the more effective control of the central government by various -expedients. Chief among these was the restoration of the system of Eyres -with their travelling justices (a natural supplement to the restoration -of the Exchequer), whose visits were now placed on a more regular and -systematic basis. Equally important were the King’s personal care in the -selection of fit men for the duties of sheriff, the frequent punishments -and removal from office of offenders, and the rigid insistence upon -efficient training and uprightness in all who enjoyed places of -authority under the Crown. Henry was strong enough to employ more -substantial men than the _novi homines_ of his grandfather without -suffering them to be less devoted to the interests of their Prince. Yet -another expedient for controlling local courts was the calling up of -cases to his own central feudal _Curia_, or before those benches of -professional judges, the future King’s Bench and Common Pleas, forming -as yet merely committees of the _Curia_ as a whole. - -Closely connected with the control thus established over the local -courts was the new system of procedure instituted by Henry. The chief -feature was that each litigation must commence with an appropriate royal -writ issued from the Chancery. Soon for each class of action was devised -a special writ appropriate to itself, and the entire procedure came to -be known as "the writ process"—an important system to which English -jurisprudence owes both its form and the direction of its growth. Many -reforms which at first sight seem connected merely with minute points of -legal procedure were really fraught with immense purport to the -subsequent development of English law and English liberties. A great -future was reserved for certain expedients adopted by Henry for the -settlement of disputes as to the possession or ownership of land, and -also for certain expedients for reforming criminal justice instituted or -systematized by a great ordinance, issued in 1166, known as the Assize -of Clarendon.[2] A striking feature of Henry’s policy was the bold -manner in which he threw open the doors of his royal Courts of Law to -all-comers, and provided there—always in return for hard cash, be it -said—a better article in name of justice than could be procured -elsewhere in England, or for that matter, elsewhere in Europe. Thus, not -only was the Exchequer filled with fines and fees, but, insidiously and -without the danger involved in a frontal attack, Henry sapped the -strength of the great feudal magnates, and diverted the stream of -litigants from the manorial courts to his own. The same policy had still -another result in facilitating the growth of a body of common law, -uniform throughout the length and breadth of England, and opposed to the -varying usages of localities or even of individual baronial courts. - ------ - -Footnote 2: - - The details of these reforms are fully discussed _infra_ under the - head of “Royal Justice and Feudal Justice,” and some of their ultimate - effects under the head of “Trial by Jury.” - ------ - -These reforms, besides influencing the current of events in England in -numerous ways, both direct and indirect, all helped to strengthen the -throne of Henry and his sons. Another class of reforms contributed -greatly to the same result, namely, the reorganization of the army. This -was effected in various ways: partly by the revival and more strict -enforcement of the obligations connected with the old Anglo-Saxon fyrd -or militia, under the Assize of Arms in 1181, which compelled every -freeman to maintain at his own expense weapons and warlike equipment -suited to his station in life; partly by the ingenious method of -increasing the amount of feudal service due from Crown tenants, based -upon an investigation instituted by the Crown and upon the written -replies returned by the barons, known to historians as “the _Cartae_ of -1166”; and partly by the development (not, as is usually supposed, the -_invention_) of the principle of scutage, a means whereby unwilling -military service, limited as it was by annoying restrictions as to time -and place, might be exchanged at the option of the Crown for money, with -which a more flexible army of mercenaries might be hired. - -By these expedients, along with many others, Henry raised the English -monarchy, always in the ascendant since the Conquest, to the very zenith -of its power, and left to his sons the entire machinery of government in -perfect working order, combining high administrative efficiency with -great strength. Full of bitter strifes and troubles as his reign of -thirty-five years had been, nothing had interfered with the vigour and -success of the policy whereby he tightened his hold on England. Neither -the long bitter struggle with Becket and the Church, ending as it did in -Henry’s personal humiliation, nor the unnatural warfare with his sons, -which involved the depths of personal suffering to the King and hastened -his death in 1189, was allowed to interfere with his projects of reform -in England. - -The last twenty years of his life had been darkened for him, and proved -troubled and anarchic in the extreme to his continental dominions; but -in England profound peace reigned. The last serious revolt of the powers -of feudal anarchy had been suppressed in 1173 with characteristic -thoroughness and moderation. After that date, the English monarchy -retained its supremacy almost without an effort. - - II. William I. to Henry II.—Problem of Local Government. - -It is necessary to leave for a time the English monarchy at its zenith, -still enjoying in 1189 the powers and reputation gained for it by Henry -of Anjou, and to retrace our steps, in order to consider two subsidiary -problems, each of which requires separate treatment—the problem of local -government, and that of the relations between Church and State. The -failure of the Princes of the House of Wessex to devise adequate -machinery for keeping the Danish and Anglian provinces in subjection to -their will was one main source of the weakness of their monarchy. When -Duke William solved this problem he took an enormous stride towards -establishing his throne on a securer basis. - -Every age has to face, in its own way, a group of difficulties -essentially the same, although assuming such different names as Home -Rule, Local Government, or Federation. Problems as to the proper nature -of the local authority, the extent of the powers with which it may be -safely entrusted, and its relation to the central government, require -constantly to be solved. The difficulties involved, always great, were -unspeakably greater in an age when practically no administrative -machinery existed, and when rapid communication and serviceable roads -were unknown. A lively sympathy is excited by a consideration of the -almost insuperable difficulties that beset the path of King Edgar or -King Ethelred, endeavouring to rule from Winchester the distant tribes -of alien races inhabiting Northumbria, Mercia, and East Anglia. If such -a king placed a weakling as ruler over any distant province, anarchy -would result and his own authority might be endangered along with that -of his inefficient representative. Yet, if he entrusted the rule of that -province to too strong a man, he might find his suzerainty shaken off by -a viceroy who had consolidated his position and then defied his king. -Here, then, are the two horns of a dilemma, both of which are -illustrated by the course of early English history. When Wessex had -established some measure of authority over rival states, and was fast -growing into England, the policy at first followed was simply to leave -each province under its old native line of rulers, who now admitted a -nominal dependence on the King who ruled at Winchester. The early -West-Saxon Princes vacillated between two opposite lines of policy. -Spasmodic attempts at centralization alternated with the reverse policy -of local autonomy. In the days when Dunstan united the spiritual duties -of the See of Canterbury to the temporal duties of chief adviser to King -Edgar, the problem of local government became urgent. Dunstan’s scheme -has sometimes been described as a federal or home-rule policy—as a frank -surrender of the attempt to control exclusively from one centre the -mixed populations of Northern and Midland England. His attempted -solution was to loosen rather than to tighten further the bond; to -entrust with wide powers and franchises the local viceroy or ealdorman -in each district, and so to be content with a loose federal empire—a -union of hearts rather than a centralized despotism founded on coercion. -The dangers of such a system are the more obvious when it is remembered -that each ealdorman commanded the troops of his own province. - -Cnut’s policy has been the subject of much discussion, and has sometimes -apparently been misunderstood. The better opinion is that, with his -Danish troops behind him, he felt strong enough to reverse Dunstan’s -tactics and to take a decisive step in the direction of centralization -or unity. His provincial viceroys (jarls or earls, as they were now -called, rather than by their old vague title of ealdormen), were -appointed on an entirely new basis. England was to be mapped out into -new administrative districts in the hope of obliterating the old tribal -divisions. Each of these was to be placed under a viceroy having no -hereditary or dynastic connection with the province he governed. In this -way, Cnut sought to avert the process by which the country was slowly -breaking up into a number of petty kingdoms. - -If these viceroys were a source of strength to the powerful Cnut, they -were a source of weakness to the saintly Confessor, who was forced to -submit to the control of his provincial rulers, such as Godwin and -Leofric, as each in turn gained the upper hand in the field or in the -Witan. This process of disintegration continued until the coming of the -Conqueror utterly changed the relations of the monarchy to every other -factor in the national life. - -Among the expedients adopted by the Norman Duke for reducing his -feudatories in England into subjection to the Crown, one of the most -important was the total abolition of the old provinces formerly governed -by separate ealdormen or jarls. Leaving out of account the exceptional -franchises, afterwards known as palatine earldoms, the real -representative of the King in each group of counties was now the sheriff -or _vicecomes_, not the earl. This Latin name of _vicecomes_ is -misleading, since the officer so-called in no sense represented the earl -or _comes_, but acted as the direct agent of the Crown. The name, -“viceroy,” more accurately describes his actual position and functions, -since he was directly responsible to the Crown, and independent of the -earl. The problem of local government, however, was not eradicated by -the substitution of the sheriff for the earl as chief magistrate in the -county; it only took a different form. The sheriffs themselves, when -relieved from the earl’s rivalry and control, tended to become too -powerful. If they never dreamed of openly defying the royal power, they -at least thwarted its exercise indirectly, appropriated to their private -uses items of revenue, pushed their own interests, and punished their -own enemies, while acting in the name of the King. The office threatened -to become territorial and hereditary,[3] and its holders aimed at -independence. New checks had to be devised to prevent this new local -authority from again defying the central power. New safeguards were -found, partly in the organization of the Exchequer and partly in the -device of sending periodically on circuit itinerant justices, who took -precedence of the sheriff, heard complaints against his misdeeds in his -own county, and thus enabled the Crown to keep a watchful eye on its -representatives. By such measures, Henry I. seemed almost to have solved -these problems before his death; but his success was apparent rather -than real. - ------ - -Footnote 3: - - In one county, Westmoreland, the office did become hereditary. - ------ - -The incompleteness of Henry’s solution of the difficulty became evident -under Stephen, when the leading noble of each locality tried, generally -with success, to capture _both_ offices for himself; great earls like -Ralph of Chester and Geoffrey of Essex compelled the King not only to -confirm them as sheriffs in their own titular counties, but also to -confer on them exclusive right to act as justices therein. - -With the accession of Henry II. the problem was, thanks to his energy -and genius, more satisfactorily solved, or at least forced once more -into the background. That great ruler was strong enough to prevent the -growth of the hereditary principle as applied to offices either of the -Household or of local magistrates. The sheriffs were frequently changed, -not only by the drastic and unique measure known as the Inquest of -Sheriffs, but systematically, and as a normal expedient of -administration. For the time being, the local government was kept in -proper subjection to the Crown; and gradually the problem solved itself. -The power of the sheriffs tended in the thirteenth century to decrease, -chiefly because they found important rivals not only in the itinerant -judges, but also in two new officers first heard of in the reign of -Richard I., the forerunners of the modern Coroner and Justice of the -Peace respectively. All fear that the sheriffs as administrative heads -of districts would assert practical independence of the Crown was thus -at an end. Yet each of them still remained a petty tyrant over the -inhabitants of his own bailiwick. While the Crown was able and willing -to avenge any direct neglect of its own interests, it was not always -sufficiently alert to avenge wrongs inflicted upon its humble subjects. -The problem of local government, then, was fast losing its pressing -importance as regards the Crown, and taking a new form, namely, the -necessity of protecting the weak from unjust fines and oppressions -inflicted on them by local magistrates. The sheriff’s local power was no -longer a source of weakness to the monarch, but had become an effective -part of the machinery which enabled the Crown to levy with impunity its -always increasing taxation. - - III. William I. to Henry II.—Problem of Church and State. - -The national Church had been, from an early date, in tacit alliance with -the Crown. The friendly aid of a long line of statesman-prelates from -Dunstan downwards had given to the Anglo-Saxon monarchy much of the -little strength it possessed. Before the Conquest the connection between -Church and State had been exceedingly close, so much so that no one -thought of drawing a sharp dividing line between. What afterwards became -two separate entities, drifting more and more into active opposition, -were at first merely two aspects of one whole—a whole which comprehended -all classes of the people, considered both in their spiritual and their -temporal relations. Change necessarily came with the Norman Conquest, -when the English Church was brought into closer contact with Rome, and -with the ecclesiastical ideals prevailing on the Continent. Yet no -fundamental alteration resulted; the friendly relations which bound the -English prelates to the English throne remained intact, while English -churchmen continued to look to Canterbury, rather than to Rome, for -guidance. The Church, in William the Conqueror’s new realm, retained -more of a national character than could be found in any other nation of -Europe. - -Gratitude to the Pope for his moral support in the work of the Conquest -never modified William’s determination to allow no unwarranted papal -interference in his new domains. His letter, both outspoken and -courteous, in reply to papal demands is still extant. “I refuse to do -fealty nor will I, because neither have I promised it, nor do I find -that my predecessors did it to your predecessors.” Peter’s pence he was -willing to pay at the rate recognized by his Saxon predecessors; but all -encroachments would be politely repelled. - -In settling the country newly reduced to his domination, the Duke of -Normandy found his most valuable adviser in a former Abbot of the Norman -Abbey of Bec, whom he raised to be Primate of all England. No record has -come down to us of any serious dispute between William and Lanfranc. - -Substantially friendly relations between their successors in the offices -of King and Archbishop remained, notwithstanding Anselm’s condemnation -of the evil deeds of Rufus. Anselm warmly supported that King’s -authority over the Norman magnates, even while he resented his evil -practices towards the Church. He contented himself with a dignified -protest (made emphatic by a withdrawal of his presence from England) -against the new exactions upon the English prelates, and against the -long intervals during which vacancies remained unfilled. Returning at -Rufus’s death from a sort of honourable banishment at Rome, to aid Henry -in maintaining order and gaining peaceable accession to the throne, -Anselm found himself compelled by his conscience and the recent decrees -of a Lateran Council, to enter on the great struggle of the -investitures. Church and State were gradually disentangling themselves -from each other; but in many respects the spiritual and temporal powers -were still indissolubly locked together. In particular, every bishop was -a vassal of the king, holder of a Crown barony, as well as a prelate of -Holy Church. By whom, then, should a bishop be appointed, by the -spiritual or by the temporal power? Could he without sin perform homage -for the estates of his See? Who ought to invest him with ring and -crozier, the symbols of his office as a shepherd of souls? Anselm -adopted one view, Henry the other. A happy compromise, suggested by the -King’s statesmanship, healed the breach for the time being. The ring and -crozier, as badges of spiritual authority, were to be conferred only by -the Church, but each prelate must perform fealty to the King before -receiving these symbols, and must do homage thereafter, but before he -was actually anointed as bishop. Canonical election was nominally -conceded by the King; but here again a practical check was devised for -rendering this power innocuous. The members of the cathedral chapter -were confirmed in the theoretic right to appoint whom they pleased, but -such appointment must be made in the King’s Court or Chapel, thus -affording the powerful monarch full knowledge of the proceedings, and an -opportunity of being present and of practically forcing the selection of -his own candidate. - -The Church gained much in power during Stephen’s reign, and deserved the -power it gained, since it remained the only stable centre of good -government, while all other institutions crumbled around it. It was not -unnatural that churchmen should advance new claims, and we find them -adopting the watchword, afterwards so famous, “that the Church should be -free,” a vague phrase doubtless, destined to be embodied in Magna Carta. -The extent of immunity thus claimed was never clearly defined, and this -vagueness was probably intentional, since an elastic phrase might be -expanded to keep pace with the ever-growing pretensions of the Church. -Churchmen made it clear, however, that they meant it to include at the -least two principles—those rights afterwards known as “benefit of -clergy,” and “canonical election” respectively. - -Henry II.’s attempt to force a clear definition, embodied in the -Constitutions of Clarendon in 1164, signally failed, chiefly through the -miscarriage of his plans consequent on the murder of Becket. Yet the -rights of the Church, although remaining theoretically unaltered from -the days of Stephen, felt the pressure directed by Henry’s energetic arm -against all claims of privilege. Rights, theoretically the same, shrank -to smaller practical limits when measured against the strength of Henry -as compared with the weakness of Stephen. Canonical election thus -remained at the close of the reign of Henry II. the same farce it had -been in the days of Henry I. The “election” lay with the chapter of the -vacant See; but the king told them plainly whom to elect. The other -rights of the Church as actually enjoyed at the close of the reign of -Henry Plantagenet were not far different from what had been set down in -the Constitutions of Clarendon, although these never received formal -recognition by Canterbury or by Rome. So matters stood between Church -and State when the throne of England was bequeathed by Henry to his -sons. It remained for John’s rash provocation, followed by his quick and -cowardly retreat, to compel a new definition of the frontier between the -spiritual and the temporal powers. - - IV. Richard I. and John. - -Henry II. before his death had fulfilled the task of restoring order, to -which destiny had called him. To effect this, he had brought to -perfection machinery of government of rare excellence, and equally well -adapted for purposes of taxation, of dispensing justice, and of general -administration. Great as was the power for good of this new instrument -in the hands of a wise and justice-loving king, it was equally powerful -for evil in the hands of an arrogant and unjust, or even of a careless -monarch. All the old enemies of the Crown had been crushed. Local -government, as now systematized, formed a source of strength, not of -weakness; while the Church, whose highest offices were now filled with -officials trained in Henry’s own Household and Exchequer (ecclesiastics -in name only, differing widely from saintly monks like Anselm), still -remained the fast friend of the Crown. The monarchy was strong enough to -defy any one section of the nation, and no inclination was yet apparent -among the estates of the realm to make common cause against the throne. - -The very thoroughness with which the Crown had surmounted all its early -difficulties, induced in Henry’s successors, men born in the purple, an -exaggerated feeling of security, and a tendency to overreach themselves -by excessive arrogance. At the same time, the very abjectness of the -various factors of the nation, now prostrate beneath the heel of the -Crown, prepared them to sink their mutual suspicions and to form a tacit -alliance in order to join issue with their common oppressor. Powers used -moderately and on the whole for national ends by Henry, were abused for -purely selfish ends by his sons in succession. Richard’s heavy taxation -and contemptuous indifference to English interests gradually reconciled -men’s minds to thoughts of change, and prepared the basis of a combined -opposition to a power which threatened to grind all other powers to -powder. - -In no direction were these abuses felt so severely as in taxation. -Financial machinery had been elaborated to perfection, and large -additional sums could be squeezed from every class in the nation by an -extra turn of the screw. Richard did not even require to incur the odium -of this, since the ministers, who were his instruments, shielded him -from the unpopularity of his measures, while he pursued his own good -pleasure abroad in war and tournament without even condescending to -visit the subjects he oppressed. Twice only, for a few months in each -case, did Richard visit England during a reign of ten years. - -In his absence new methods of taxation were devised, and new classes of -property subjected to it; in especial, personal effects—merchandise and -other chattels—only once before (in 1187 for the Saladin tithe) placed -under contribution, were now made a regular source of royal revenue. The -isolated precedent of Henry’s reign was gladly followed when an -extraordinarily heavy burden had to be borne by the nation to produce -the ransom exacted for Richard’s release from prison. The very -heartiness with which England made sacrifices to succour the Monarch in -his hour of need, was turned against the tax-payers. Richard showed no -gratitude; and, being devoid of all kindly interest in his subjects, he -argued that what had been paid once might equally well be paid again. -Thus he formed exaggerated notions of the revenue to be extracted from -England. From abroad he sent demand after demand to his overworked -justiciars for ever-increasing sums of money. The chief lessons of the -reign are connected with this excessive taxation, and the consequent -discontent which prepared the way for the new grouping of political -forces under John. - -Some minor lessons may be noted: - -(1) In Richard’s absence the odium for his exactions fell upon his -ministers at home, who thus bore the burden meet for his own callous -shoulders, while he enjoyed an undeserved popularity by reason of his -bravery and achievements, exaggerated as these were by the halo of -romance which surrounds a distant hero. Thus may be traced some dim -foreshadowing of the doctrine of ministerial responsibility, although -such analogies with modern politics must not be pushed too far. - -(2) Throughout the reign, many parts of Henry’s system, technical -details of taxation and reforms in the administration of justice, were -elaborated by Archbishop Hubert Walter. Principles closely connected -with trial by jury on the one hand and with election and representation -on the other were being quietly developed—destined to play an important -rôle in other ages. - -(3) Richard is sometimes said to have inaugurated the golden age of -municipalities. Undoubtedly many charters still extant bear witness to -the lavish hand with which he granted, on paper at least, franchises and -privileges to the nascent towns. John Richard Green finds the true -interest of the reign not in the King’s Crusades and French wars, so -much as in his fostering care over the growth of municipal enterprise. -The importance of the consequences of such a policy is not diminished by -the fact that Richard acted from sordid motives—selling privileges, too -often of a purely nominal character, as he sold everything else which -would fetch a price. - -The death of Richard on 6th April, 1199, brought with it at least one -important change; England was no longer to be governed by an absentee. -John, as impatient of control as he was incompetent, endeavoured to -shake himself free from the restraints of powerful ministers, and -determined to conduct the work of government in his own way. The result -was an abrupt end to the progress made in the previous reign towards -ministerial responsibility. The odium formerly exhausting itself on the -justiciars of Richard was now expended on John. While, previously, men -had sought redress in a change of minister, such vain expectations could -no longer deceive. A new element of bitterness was added to injuries -long resented, and the nobles who felt the pinch of heavy taxation were -compelled to seek redress in an entirely new direction. All the forces -of discontent played openly around the throne. - -As is usual at the opening of a new reign, the discontented hoped that a -change of sovereign would bring some relief. The excessive taxation of -the late reign had been the result of exceptional circumstances. It was -expected that the new King would revert to the less burdensome scale of -his father’s financial measures. Such hopes were quickly disappointed. -John’s needs proved as great as Richard’s, and the money he obtained was -used for purposes that appealed to no one but himself. The excessive -exactions demanded both in money and in service, coupled with the -unpopular uses to which these were put, form the keynote of the whole -reign. They form also the background of Magna Carta. - -The reign falls naturally into three periods; the years in which John -waged a losing war with the King of France (1199-1206), the quarrel with -the Pope (1206-13), the great struggle of John with the barons -(1213-16). - -The first seven years were for England comparatively uneventful, except -in the gradual deepening of disgust with John and all his ways. The -continental dominions were ripe for losing, and John precipitated the -catastrophe by his injustice and dilatoriness. The ease with which -Normandy was lost shows something more than the incapacity of the King -as a ruler and leader—John Softsword as contemporary writers -contemptuously call him. It shows that the feudal army of Normandy had -come to regard the English Sovereign as an alien monarch, and refused to -fight in support of the rule of a foreigner. The unwillingness of the -English nobles to succour John actively has also its significance. The -descendants of the men who helped William I. to conquer England had now -lost all interest in the land from which they came. They were now purely -English landowners, and very different from the original Norman baronage -whose interests, like their estates, had been equally divided on both -sides of the Channel. - -The death of Archbishop Hubert Walter in July, 1205, deprived King John -of the services of the most experienced statesman in England. It did -more, for it marked the termination of the long friendship between the -English Crown and the National Church. Its immediate effect was to -create a vacancy, the filling of which led to a bitter quarrel with -Rome. - -John failed, as usual, to recognize the merits of abler men, and saw in -the death of his great Justiciar and Archbishop only the removal of an -unwelcome restraint, and the opening to the Crown of a desirable piece -of patronage. He prepared to strain to the utmost his rights in the -election of a successor to the See of Canterbury, in favour of one of -his own creatures, a certain John de Grey, already by royal influence -Bishop of Norwich. Unexpected opposition to his will was offered by the -canons of the Cathedral Church, who determined on a bold policy, namely, -to turn their nominal right of canonical election into a reality, and to -appoint their own nominee, without waiting either for the King’s -approval or the co-operation of the suffragan bishops of the Province, -who, during the last three vacancies, had put forth a claim to -participate in the election, and had invariably used their influence on -behalf of the King’s nominee. Reginald, the sub-prior, was secretly -elected by the monks, and hurried abroad to obtain confirmation at Rome -before the appointment was made public. Reginald’s vanity prevented his -keeping his pledge of secrecy, and a rumour reached the ear of John, who -brought pressure to bear on the monks, now frightened at their own -temerity, and secured de Grey’s appointment in a second election. The -Bishop of Norwich was actually enthroned at Canterbury, and invested by -the King with the temporalities of the See. All parties now sent -representatives to Rome. This somewhat petty squabble benefited none of -the original disputants; for the astute Innocent III. was quick to see -an opportunity for papal aggrandisement. Both elections were set aside -by decree of the Papal Curia, and the emissaries of the various parties -were coerced or persuaded to appoint there and then in the Pope’s -presence the Pope’s own nominee, a certain Cardinal, English-born, but -hitherto little known in England, Stephen Langton by name, destined to -play an important part in the future history of the land of his birth. - -John refused to view this triumph of papal arrogance in the light of a -compromise—the view diplomatically suggested by Innocent. The King, with -the hot blood common to his race, and the bad judgment peculiar to -himself, rushed headlong into a quarrel with Rome which he was incapable -of carrying to a successful issue. The details of the struggle, the -interdicts and excommunications hurled by the Pope, and John’s measures -of retaliation against the unfortunate English clergy, need not be -discussed, since they do not directly affect the main plot which -culminated at Runnymede. - -John was not without some measure of sagacity of a selfish and -short-sighted sort, but was completely devoid of far-seeing statecraft. -One day he was to reap the fruits of this quarrel in bitter humiliation -and in the defeat of his most cherished aims; but, for the moment, the -breach with Rome seemed to lead to a triumph for the King. The papal -encroachments furnished him with a suitable pretext for confiscating the -property of the clergy. Thus his Exchequer was amply replenished, while -he was able for a time to conciliate his most inveterate opponents, the -Northern barons, by remitting during several years the hated burden of a -scutage, which, in other periods of his reign, tended to become a yearly -imposition. John had no intention, however, to forego his right to -resume the practice of annual scutages whenever it suited him to do so. -On the contrary, he executed a measure intended to make them more -remunerative in the future. This was the great Inquest of Service -ordered on 1st June, 1212.[4] - ------ - -Footnote 4: - - See Round, _Commune of London_, 273. This measure is discussed _infra_ - pp. 91-2. - ------ - -During these years, however, John temporarily relaxed the pressure on -his feudal tenants. His doing so failed to gain back any of their -goodwill, while he broadened the basis of future resistance by shifting -his oppressions to the clergy and through them to the poor. - -Some incidents of the autumn of 1212 require brief notice, as well from -their own inherent interest as because they find an echo in the words of -Magna Carta. Serious trouble had arisen with Wales. Llywelyn (who had -married John’s natural daughter Joan, and had consolidated his power -under protection of the English King) now seized the occasion to cross -the border, while John was preparing his schemes for a new continental -expedition. The King changed his plans, and prepared to lead his troops -to Wales instead of France. A muster was summoned for September at -Nottingham, and John went thither to meet them. Before tasting meat, as -we are told in Roger of Wendover’s graphic narrative, he hanged -twenty-eight Welsh hostages, boys of noble family, whom he held as -sureties that Llywelyn would keep the peace.[5] - ------ - -Footnote 5: - - R. Wendover, III. 239. - ------ - -Almost immediately thereafter, two messengers arrived simultaneously -from Scotland and from Wales with unexpected tidings. John’s daughter, -Joan, and the King of Scots, each independently warned him that his -English barons were prepared to revolt, under shelter of the Pope’s -absolution from their allegiance, and either to slay him or betray him -to the Welsh. The King dared not afford them so good an opportunity. In -a panic he disbanded the feudal levies; and, accompanied only by his -mercenaries, moved slowly back to London.[6] - ------ - -Footnote 6: - - W. Coventry, II. 207; R. Wendover, III. 239. - ------ - -Two of the barons, Robert Fitz-Walter, afterwards the Marshal of the -army which, later on, opposed John at Runnymede, and Eustace de Vesci, -showed their knowledge of John’s suspicions (if they did not justify -them) by withdrawing secretly from his Court and taking to flight. The -King caused them to be outlawed in their absence, and thereafter seized -their estates and demolished their castles.[7] - ------ - -Footnote 7: - - From their possible connection with the wording of the famous chapter - 39 of Magna Carta, it may be worth while to quote the exact words in - which Ralph de Coggeshall, _Chronicon Anglicanum_, p. 165, describes - this event, which he places (probably wrongly) in the year 1213.—“Rex - Eustachium de Vesci et Robertum filium Walteri, in comitatibus tertio - requisitos, cum eorum fautoribus utlaghiari fecit, castra eorum - subvertit, praedia occupavit.” - ------ - -These events of September, 1212, rudely shook John out of the false -sense of security in which he had wrapped himself a few months earlier. -In the Spring of the same year, he had still seemed to enjoy the full -tide of prosperity; and he must have been a bold prophet who dared to -foretell, as Peter of Wakefield did foretell, the speedy downfall of the -King—a prophecy the main purport of which (although not the details), -was actually accomplished.[8] - ------ - -Footnote 8: - - See Miss Norgate, _John Lackland_, 170, and authorities there cited. - ------ - -John’s apparent security was deceptive; he had underestimated the powers -arrayed against him. Before the end of that year he had realized, in a -sudden flash of illumination, that the Pope was too strong for him, -circumstanced as he then was. It may well be that, if John’s throne had -rested on a solid basis of his subjects’ love, he might have defied with -impunity the thunders of Rome; but, although he was still an -unrestrained despot, his despotism now rested on a hollow foundation. -His barons, particularly the eager spirits of the north, refrained from -open rebellion merely until a fit opportunity should be offered them. -The papal excommunication of a King relieved his subjects of their oaths -of allegiance, and this might render their deliberate revolt dangerous -and perhaps fatal. At this critical juncture Innocent played his leading -card, inviting the King of France to act as the executor of the sentence -of excommunication against his brother King. John at once realized that -the time had come to make his peace with Rome. - -Perhaps we should admire the sudden inspiration which showed the King -that his game had been played and lost, while we regret the humiliation -of his surrender, and the former blindness which could not see a little -way ahead. - -On 13th May, 1213, John met Pandulf, the papal legate, and accepted -unconditionally his demands, the same which he had refused -contemptuously some months before. Full reparation was to be made to the -Church. Stephen Langton was to be received as archbishop in all honour -with his banished bishops, friends and kinsmen. All church property was -to be restored, with compensation for damage done. One of the minor -conditions of John’s absolution was the restoration to Eustace de Vesci -and Robert Fitz-Walter of the estates which they persuaded Innocent had -been forfeited because of their loyalty to Rome.[9] - ------ - -Footnote 9: - - _Ibid._, 292–3. - ------ - -John’s humiliation did not stop even here. Two days later he resigned -the Crowns of England and Ireland, and received them again as the Pope’s -feudatory, promising to perform personal homage should occasion allow. -Such was the price which the King was now ready to pay for the Pope’s -active alliance against his enemies at home and abroad, the former -submission having merely bought off the excommunication. John hoped thus -to disentangle himself from his growing difficulties, and so to be free -to avenge himself on his baronial enemies. The surrender of the Crown -was embodied in a formal legal document which bears to be made by John, -“with the common council of our barons.” Were these merely words of -form? They may have been so when first used; yet two years later the -envoys of the insurgent barons claimed at Rome that the credit (so they -now represented it) for the whole transaction lay with them. Perhaps the -barons did consent to the surrender, thinking that to make the Pope lord -paramount of England would protect the inhabitants from the -irresponsible tyranny of John; while John hoped (with better reason as -events proved) that the Pope’s friendship would increase his ability to -work his evil will upon his enemies. In any case, no active opposition -or protest seems to have been raised by any one at the time of the -surrender. This step, so repugnant to later writers, seems not to have -been regarded by contemporaries as a disgrace. Matthew Paris, indeed, -writing in the next generation, describes it as “a thing to be detested -for all time”; but then events had ripened in Matthew’s day, and he was -a keen politician rather than an impartial onlooker.[10] - ------ - -Footnote 10: - - The late Cardinal Manning in an article in the _Contemporary Review_ - for December, 1875 (since published in book form), on the Pope and - Magna Carta, insists, probably with reason, that contemporary opinion - saw nothing disgraceful in the surrender, rather the reverse. - ------ - -Stephen Langton, now assured of a welcome to the high office into which -he had been thrust against John’s will, landed at Dover and was received -by the King at Winchester on 20th July, 1213. John swore on the Gospels -to cherish and defend Holy Church, to restore the good laws of Edward, -and to render to all men their rights, repeating practically the words -of the coronation oath. In addition, he promised to make reparation for -all property taken from the Church or churchmen. This oath, with its -accompanying promise, was the condition on which he was to be absolved, -provisionally by Langton, and more formally by a legate, to be sent from -Rome specially for that purpose. - - V. The Years of Crisis, 1213–15. - -For a brief season after John had made his peace with Rome, he seemed to -enjoy substantial fruits of his diplomacy. Once more the short-sighted -character of his abilities was illustrated; a brief triumph led to a -deeper fall. The King for the moment considered, with some show of -reason, that he had regained the mastery of his enemies at home and -abroad. Philip’s threatened invasion had to be abandoned; the people -renewed their allegiance on the removal of the papal sentence; the -barons had to reconcile themselves as best they could, awaiting a better -opportunity to rebel. If John had confined himself to home affairs, he -might have postponed the final explosion: he could not, however, -reconcile himself to the loss of the great continental heritage of his -ancestors. His attempts to recover Normandy and Anjou, partly by force -of arms and partly by a great coalition, led to new exactions and new -murmurings, while they ended in complete failure, which left him, -discredited and penniless, at the mercy of the malcontents at home. - -His projected campaign in Poitou would require all the levies he could -raise. More than once John demanded, and his barons refused, their -feudal service. Many excuses were put forward. At first they declined to -follow a King who had not yet been fully absolved. Yet when Archbishop -Stephen, on 20th July, 1213, removed the papal censure from John at -Winchester, after exacting promises of good government, the northern -barons still refused. Their new plea was that the tenure on which they -held their lands did not compel them to serve abroad. They added that -they were already exhausted by expeditions within England.[11] - ------ - -Footnote 11: - - R. Coggeshall, p. 167. - ------ - -John took this as open defiance, and determined, with troops at his back -(_per vim et arma_), to compel obedience. - -Before his preparations were completed, an important assembly had met at -St. Albans (on 4th August) to make sworn inquest as to the extent of -damage done to churchmen during the years of John’s quarrel with Rome. -The meeting is notable, not merely because of the reason of its summons, -but also because of its composition. It is the earliest national council -in which the principle of representation received recognition (so far as -our records go).[12] Four lawful men, with the reeve, from each village -or manor on the royal demesne, were present, but only, it must be -remembered, in a very mean capacity—only to make a sworn inquest as to -the amount of damage done. Such inquests by the humble representatives -of the villages were quite common locally; the innovation lies in this, -that their verdict was now given in a national assembly. Directions were -issued in the King’s name from the same meeting, commanding sheriffs, -foresters, and others to observe the laws of Henry I. and to abstain -from unjust exactions, as they valued their limbs and lives.[13] - ------ - -Footnote 12: - - Stubbs, _Const. Hist._, I. 566. - -Footnote 13: - - R. Wendover, III. 261-2. - ------ - -On 25th August, after John had set out with his mercenaries to punish by -force of arms the refusal of his northern magnates to follow him to the -Continent, as he held them bound to do in terms of their feudal -obligations, Stephen Langton held a meeting with the great men of the -south. Many bishops, abbots, priors and deans, together with some lay -magnates of the southern counties, met him at St. Paul’s, London. The -ostensible object of this assembly was to determine what use the -Archbishop should make of his power to grant partial relaxation of the -interdict still casting its blight over England—which could not be -finally lifted until the legate arrived with fuller powers. If we may -believe Roger of Wendover, more important business was transacted in the -King’s absence. Stephen reminded the magnates that John’s absolution had -been conditional on a promise of good government, and as a standard to -guide them in judging what such government implied, he produced a copy -of Henry I.’s Charter of Liberties. All present swore to “fight for -those liberties, if it were needful, even unto death.” The Archbishop -promised his help, “and a confederacy being thus made between them, the -conference was dissolved.”[14] - ------ - -Footnote 14: - - Roger of Wendover, III. 263-6. Blackstone (_Great Charter_, - Introduction, p. vi.), makes the apposite comment that it seems - unlikely that the discovery by the Archbishop of a charter probably - already well known “should be a matter of such novelty and triumph.” - ------ - -Stephen Langton, however, desired a peaceable solution if possible, and -three days later we find him, after a somewhat hurried journey, at -Northampton, on the 28th of August, striving earnestly, and with -success, to avert civil war between John and the recalcitrant Crown -tenants in the north. - -His line of argument is worthy of especial note. The King, he urged, -must not levy war on his subjects before he had obtained a legal -judgment against them. The substance of this advice should be compared -with the terms of chapter 39 of Magna Carta. John resented the -interference of Stephen in lay matters, and continued his march to -Nottingham; but threats of fresh excommunications caused him at length -to consent to substitute legal process for violence, and to appoint a -day for the trial of the defaulters before the _Curia Regis_—a trial -which never took place.[15] - ------ - -Footnote 15: - - R. Wendover, III. 262-3. - ------ - -John apparently continued his journey as far north as Durham, but -returned to meet the new papal legate Nicholas, to whom he performed the -promised homage and repeated the formal act of surrender in St. Paul’s -on 3rd October.[16] Having thus completed his alliance with the Pope, he -was confident of worsting his enemies in France and England. As most, if -not all, of the great magnates were against him, he saw that it would be -well to strengthen his position by support of the class beneath them in -the feudal scheme of society. Perhaps it was this that led John to -broaden the basis of the national assembly. The great Council which met -at Oxford on 15th November, 1213, was made notable by the presence, in -addition to the Crown tenants, of representatives of the various -counties. The sheriffs, in the words of the King’s writs, were to cause -to assemble all knights already summoned (that is, the Crown tenants) -and four discreet men of each county “_ad loquendum nobiscum de negotiis -regni nostri_.” Miss Norgate[17] lays stress on the fact that these -writs were issued after the death of the great Justiciar Geoffrey -Fitz-Peter, and before any successor had been appointed. John, she -argues, acted on his own initiative, and is thus entitled to the credit -of being the first statesman to introduce representatives of the -counties into the national assembly. The importance of this precedent -need not be obscured by the selfish nature of the motives to which it -was due. Knights who were tenants of mesne lords (Miss Norgate says -“yeomen”) were invited to act as a counterpoise to the barons. This -innovation anticipated the line of progress afterwards followed by de -Montfort and Edward I. Compared with it, the often-praised provisions of -chapter 14 of Magna Carta must be regarded as antiquated and even -reactionary. - ------ - -Footnote 16: - - The charter recording this act may be read in _New Rymer_, I. 115. It - was sealed not in perishable wax, but in solid gold. - -Footnote 17: - - _John Lackland_, 195. - ------ - -In the early spring of 1214, John considered his home troubles ended, -and that he was now free to use against France the coalition formed by -his diplomacy. He went abroad early in February, leaving Peter des -Roches, the unpopular Bishop of Winchester, to keep the peace as -Justiciar, and to guard his interests, in concert with the papal legate. -Although deserted by the northern barons, John relied partly on his -mercenaries, but chiefly on the Emperor Otto and his other powerful -allies. Fortune, always fickle, favoured him at first, only to ruin all -his schemes more completely in the end. The crash came on Sunday, 27th -July, 1214, when the King of France triumphed over the allies at the -decisive battle of Bouvines. Three months later, John was compelled to -sign a five years’ truce with Philip, abandoning all pretensions to -recover his continental dominions. - -He had left enemies at home more dangerous than those who conquered him -at Bouvines—enemies who had been watching with trembling eagerness the -vicissitudes of his fortunes abroad. His earlier successes struck dismay -into the malcontents in England, apprehensive of the probable sequel to -his triumphant return home. They waited with anxiety, but not in -idleness, the culmination of his campaign, wisely refraining from open -rebellion until news reached them of his failure or success. Meanwhile, -they quietly organized their programme of reform and their measures of -resistance. John’s strenuous endeavours to exact money and service, -while failing to fill his Exchequer as he hoped, had ripened dormant -hostility into an active confederacy organized for resistance. When -England learned the result of the battle, the barons felt that the -moment for action had arrived. - -Even while abroad, John had not relaxed his efforts to wring exactions -from England. Without consent or warning, he had imposed a scutage at -the unprecedented rate of three marks on the knight’s fee. Writs for its -collection had been issued on 26th May, 1214, an exception being indeed -allowed for tenants personally present in the King’s army in Poitou. The -northern barons, who had already refused to serve in person, now refused -likewise to pay the scutage. This repudiation was couched in words -particularly bold and sweeping; they denied liability to follow the King -not merely to Poitou, but to any part of the Continent.[18] - ------ - -Footnote 18: - - See W. Coventry, II. 217, _dicentes se propter terras quas in Anglia - tenent non debere regem extra regnum sequi nec ipsum euntem scutagio - juvare_. The legality of this contention is discussed _infra_, pp. - 83-6. - ------ - -When John returned, in the middle of October, 1214, he found himself -confronted with a crisis unique in English history. During his absence, -the opponents of his misrule had drawn together, formulated their -grievances, and matured their plans. The embarrassments on the Continent -which weakened the King, heartened the opposition. The northern barons -took the lead. Their cup of wrath, which had long been filling, -overflowed when the scutage of three marks was imposed. Within a -fortnight of his landing, John held an interview with the malcontents at -Bury St. Edmunds (on 4th November, 1214).[19] No compromise was arrived -at. John pressed for payment of the scutage, and the barons refused. - ------ - -Footnote 19: - - See Miss Norgate, _John Lackland_, p. 221. - ------ - -It seems probable that, after John’s retiral, a conference of a more -private nature was held at which, under cloak of attending the Abbey for -prayer, a conspiracy against John was sworn. Roger of Wendover gives a -graphic account of what happened. The magnates came together “as if for -prayers; but there was something else in the matter, for after they had -held much secret discourse, there was brought forth in their midst the -charter of King Henry I., which the same barons had received in London -... from Archbishop Stephen of Canterbury.”[20] A solemn oath was taken -to withdraw their fealty (a threat actually carried into effect on 5th -May of the following year), and to wage war on the King, unless he -granted their liberties; and a date—soon after Christmas—was fixed for -making their formal demands. Meanwhile they separated to prepare for -war. The King also realized that a resort to arms was imminent. While -endeavouring to collect mercenaries, he tried unsuccessfully to sow -dissension among his opponents. In especial, he hoped to buy off the -hostility of the Church by a separate charter which he issued on 21st -November. This professes to be granted “of the common consent of our -barons.” Its object was to gratify the Church by turning canonical -election from a sham into a reality. The election of prelates, great and -small, should henceforward be really free in all cathedral and -conventual churches and monasteries, saving to the Crown the right of -wardship during vacancies. John promised never to deny or delay his -consent to an election, and conferred powers on the electors, if he -should do so, to proceed without him. The King was bitterly disappointed -in his hope that by this bribe he would bring over the national Church -from the barons’ side to his own. - ------ - -Footnote 20: - - R. Wendover, III. 293. - ------ - -John was probably well aware of what took place at St. Edmunds after he -had left, and he also knew that the close of the year was the time fixed -for the making of demands. He held what must have been an anxious -Christmas at Worcester (always a favourite resting-place of this King), -but tarried only for a day, hastening to the Temple, London, where the -proximity of the Tower would give him a feeling of security. There, on -6th January, 1215, a deputation from the insurgents met him without -disguising that their demands were backed by force. These demands, they -told him, included the confirmation of the laws of King Edward, with the -liberties set forth in Henry’s Charter. - -On the advice of the Archbishop and the Marshal, who acted as mediators, -John asked a truce till Easter, which was granted in return for the -promise that he would then give reasonable satisfaction. The Archbishop, -the Marshal, and the Bishop of Ely were named as the King’s securities. - -On 15th January, John re-issued the Charter to the Church, and demanded -a renewal of homage from all his subjects. The sheriffs in each county -were instructed to administer the oath in a specially stringent form; -all Englishmen must now swear to “stand by him against all men.” -Meanwhile emissaries were dispatched by both sides to Rome. Eustace de -Vesci, as spokesman of the malcontents, asked Innocent, as overlord of -England, to compel John to restore the ancient liberties, and claimed -consideration on the ground that John’s surrender to the Pope had been -made under pressure put on the King by them—all to no effect. John -thought to propitiate the Pope by taking the cross, a politic measure -(the date of which is given by one authority as 2nd February, and by -another as 4th March), which would also serve to protect him against -personal violence, and which afforded him, as is well illustrated by -several chapters of Magna Carta, a fertile excuse for delay in remedying -abuses. In April, the northern barons, convinced that the moment for -action had arrived, met in arms at Stamford, and after Easter (when the -truce had expired) marched southward to Brackley, in Northampton. There -they were met, on 27th April, by the Archbishop and the Marshal, as -emissaries from the King, who demanded what they wanted. They received -in reply, and took back with them to John, a certain schedule, which -consisted for the most part of ancient laws and customs of the realm, -with an added threat that if the King did not immediately adhibit his -seal the rebels would constrain him by seizing his castles, lands, and -goods.[21] - ------ - -Footnote 21: - - R. Wendover, III. 298. - ------ - -This schedule may be regarded as a rough draft of the document more -fully drawn out six weeks later, commonly known as the Articles of the -Barons.[22] - ------ - -Footnote 22: - - Is it not possible that the so-called “unknown charter of Liberties” - (see _infra_ under Part V. and Appendix) was the very schedule - mentioned by Wendover? It was drawn up in the form of a charter, so as - to be ready for the immediate imprint of the seal they demanded. - ------ - -John’s answer, when he read these demands, was emphatic. “Why do not the -barons, with these unjust exactions, ask my kingdom?” Then furious, he -declared with an oath that he would never grant them such liberties, -whereby he would make himself a slave.[23] - ------ - -Footnote 23: - - R. Wendover, III. 298. - ------ - -On 5th May the barons formally renounced allegiance[24] and chose as -commander, Robert Fitz-Walter, who styled himself piously and -grandiloquently, “Marshal of the army of God and Holy Church.” - ------ - -Footnote 24: - - Blackstone, _Great Charter_, p. xiii., citing the _Annals of - Dunstable_ (p. 43), says they were absolved at Wallingford by a Canon - of Durham. - ------ - -The insurgents, still shivering on the brink of civil war, delayed to -march southwards. Much would depend on the attitude of London, with its -wealth and central position; and John bade high for the support of its -citizens. On 9th May a new charter[25] was granted to the Londoners, who -now received a long-coveted privilege, the right to elect their mayor -annually and to remove him at the year’s end. This marked the -culmination of a long series of progressive grants in their favour. -Previously the mayor had held office for life, and Henry Fitz-Aylwin, -the earliest holder of the office (appointed perhaps in 1191), had died -in 1213. - ------ - -Footnote 25: - - The Charter appears _Rot. Chart._, p. 207. _Cf._ under chapter 13 - _infra_, where the rights of the Londoners are discussed. - ------ - -Apparently no price was paid for this charter; but John doubtless -expected in return the grateful support of the Londoners, exactly as he -had expected the support of churchmen when he twice granted a charter in -their favour. In both instances he was disappointed. Next day he made, -probably as a measure of delay, an offer of arbitration to the barons. -In the full tide of military preparations, he issued a writ in these -words: "Know that we have conceded to our barons who are against us that -we shall not take or disseise them or their men, nor go against them -_per vim vel per arma_, unless by the law of our land, or by the -judgment of their peers _in curia nostra_, until consideration shall -have been made by four whom we shall choose on our part and four whom -they shall choose on their part, and the lord Pope who shall be oversman -over them"—words worthy of careful comparison with those used in chapter -39 of Magna Carta. The offer could not be taken seriously, since it left -the decision of every vital issue virtually to the Pope, whom the barons -distrusted.[26] - ------ - -Footnote 26: - - The writ is given in _Rot. Pat._, 1. 141, and also in _New Rymer_, I. - 128. - ------ - -Another royal writ, of two days later date, shows a rapid change of -policy, doubtless due to the contemptuous rejection of arbitration. On -12th May, John ordered the sheriffs to do precisely what he had offered -not to do. They were told to take violent measures against the rebels -without waiting for a “judgment of peers” or other formality. Lands, -goods, and chattels of the King’s enemies were to be seized and applied -to his benefit.[27] - ------ - -Footnote 27: - - For writ, see _Rot. Claus._, 204. - ------ - -The barons, rejecting all offers, marched by Northampton, Bedford, and -Ware, towards the capital. London, in spite of the charter received -eight days earlier, boldly threw in its lot with the insurgents, to whom -it opened its gates on 17th May.[28] The example of London was quickly -followed by other towns and by many hesitating nobles. The confederates -felt strong enough to issue letters to all who still adhered to the -King, bidding them forsake him on pain of forfeiture. - ------ - -Footnote 28: - - Some authorities give 24th May as the date. It must have been the - 17th; since _New Rymer_, p. 121, under the date of 18th May, prints a - writ of John, informing Rowland Blaot of the surrender of London to - the barons. This was followed on 20th May (_N.R._, p. 121) by another - royal writ, ordering all bailiffs and other faithful, to molest the - Londoners in every way possible. - ------ - -John found himself, for the moment, without power of effective -resistance; and, probably with the view of gaining time rather than of -committing himself irretrievably to any abatement of his prerogatives, -agreed to meet his opponents. As a preliminary to this, on 8th June he -issued a safe-conduct for the barons’ representatives to meet him at -Staines within the three days following. This was apparently too short -notice, as on 10th June, John, now at Windsor, granted an extension of -the time and safe-conduct till Monday, 15th June. William the Marshal -and other envoys were dispatched from Windsor to the barons in London -with what was practically a message of surrender. The barons were told -that John “would freely accede to the laws and liberties which they -asked,” if they would appoint a place and day for a meeting. The -intermediaries, in the words of Roger of Wendover,[29] "without guile -carried back to the barons the message which had been guilefully imposed -on them"—implying that John meant to make no promises, except such as -were insincere. Yet the barons, _immenso fluctuantes gaudio_, fixed as -the time of meeting the last day of the extended truce, Monday, 15th -June, at a certain meadow between Staines and Windsor, known as -Runnymede. - ------ - -Footnote 29: - - III. 301. - ------ - - VI. Runnymede, and after. - -On 15th June the King and the Barons met. On the side of the insurgents -appeared a great host; on the monarch’s, merely a small band of -magnates, loyal to the person of the King, but only half-hearted, at the -best, in his support. Their names may be read in the preamble to the -Charter: the chief among them, Stephen Langton, still nominally neutral, -was known to be in full sympathy with the rebels. - -Dr. Stubbs,[30] maintaining that the whole baronage of England was -implicated in these stirring events, gives a masterly analysis of its -more conspicuous members into four great groups: (1) the Northumbrani or -Norenses of the chroniclers, names famous in the northern counties, who -had been the first to raise the standard of open revolt, and retained -the lead throughout; (2) the other nobles from all parts of England, who -had shown themselves ready from an early date to co-operate with the -Northerners—“the great baronial families that had been wise enough to -cast away the feudal aspirations of their forefathers, and the rising -houses which had sprung from the ministerial nobility”; (3) the moderate -party who, ready to worship the rising sun, deserted John after London -had joined the rebels, including even the King’s half-brother (the Earl -of Salisbury), the loyal Marshal, Hubert de Burgh, and other ministers -of the Crown, whose names may be read in the preamble to the Charter; -and (4) the tools of John’s misgovernment, mostly men of foreign birth, -tied to John by motives of interest as well as by personal loyalty, -since their differences with the baronial leaders lay too deep for -reconciliation, most of whom are branded by name in Magna Carta as for -ever incapable of holding office in the realm. These men of desperate -fortunes alone remained whole-hearted on John’s side when the crisis -came.[31] - ------ - -Footnote 30: - - _Const. Hist._, I. 581-3. - -Footnote 31: - - The individual names may be read in Stubbs, _Ibid._; and readers in - search of biographical knowledge are referred to Bémont, _Chartes_, - 39–40, and for fuller, though less reliable information, to Thomson, - _Magna Charta_, 270–322. - ------ - -When the conference began, the fourth group was not near John, being -otherwise occupied in the command of castle garrisons or of troops -actually in the field; the third group, a small one, was with him; and -the first and second groups were, in their imposing strength, arrayed -against him. - -Unfortunately, the vagueness of contemporary accounts prevents us from -reproducing with certainty the progress of negotiations on that eventful -15th of June and the few days following. Some inferences, however, may -be drawn from the words of the completed Charter itself and from those -of several closely related documents. One of these, the Articles of the -Barons,[32] is sometimes supposed to be identical in its terms with the -Schedule which had been already presented to the King’s emissaries, at -Brackley, on the 27th of April.[33] It is more probable, however, that -during the seven eventful weeks which had since elapsed, the original -demands had been somewhat modified. It is not unlikely that the interval -had been employed in making the terms of the suggested agreement more -full and specific. The Schedule of April was probably only a rough draft -of the Articles as we know them, and these formed in their turn the new -draft on which the completed Charter was based. Articles and Charter are -alike authenticated with the impress of the King’s great seal, an -indisputable proof that the terms of each of them actually received his -official consent. - ------ - -Footnote 32: - - See Appendix. - -Footnote 33: - - See _supra_, p. 40. - ------ - -This fact affords a strong presumption that an interval must have -elapsed between the King’s acceptance of the first and the final -completion of the second; since it would have been absurd to seal what -was practically a draft at the same time as the principal instrument. -The probability of such an interval must not be lost sight of in any -attempt to reconstruct in chronological sequence the stages of the -negotiations at Runnymede. - -A few undoubted facts form a starting-point on which inferences may be -based. John’s headquarters were fixed at Windsor from Monday, 15th June, -to the afternoon of Tuesday the 23rd. On each of these nine days (with -the possible exception of the 16th and 17th) he visited Runnymede to -confer with the barons.[34] - ------ - -Footnote 34: - - So far there can be no doubt. Either on the _Close Rolls_ or on the - _Patent Rolls_ (q.v.) copies of one or more writs are preserved dated - from Windsor on each of these days, and also one or more dated from - Runnymede on 15th, 18th, 19th, 20th, 21st, 22nd, and 23rd June. - ------ - -Two crucial stages in these negotiations were clearly reached on Monday -the 15th (the date borne by Magna Carta itself) and on Friday the 19th -(the day on which John in more than one writ stated that peace had been -concluded). What happened exactly on each of these two days is, however, -to some extent, matter of conjecture. It is here maintained, with some -confidence, that on Monday the substance of the barons’ demands was -provisionally accepted and that the Articles were then sealed; while on -Friday this arrangement was finally confirmed and Magna Carta itself, in -several duplicates, was sealed. - -To justify these inferences, a more detailed examination of the evidence -available will be necessary. The earliest meeting between John and the -baronial leaders, all authorities are agreed, took place on Monday, 15th -June, probably in the early morning. The barons undoubtedly came to the -conference provided with an accurate list of those grievances which they -were determined to have redressed. On the previous 27th of April the -rebels had sent a written Schedule to the King, along with a demand that -he should signify his acceptance by affixing his seal;[35] they are not -likely to have been less fully prepared on 15th June. - ------ - -Footnote 35: - - R. Wendover, III. 298. - ------ - -John, on his part, would naturally try a policy of evasions and delays; -and, when these were clearly useless, would then endeavour to secure -modifications of the terms offered. These tactics met with no success. -His opponents demanded a plain acceptance of their plainly expressed -demands. Before nightfall, John, overawed by their firmness and by the -numbers of the armed force behind them, was constrained to surrender. -Leaving minor points of detail to be subsequently adjusted, he -provisionally accepted the substance of the long list of reforms put -before him by the barons, on the understanding that they would renew -their allegiance and give him some security that they would keep the -peace. In proof of this bargain, the heads of the agreement were rapidly -engrossed on parchment to the number of forty-nine, and the great seal -was impressed on the wax of the label, where it may still be seen.[36] - ------ - -Footnote 36: - - In the British Museum. See _infra_ under Part V. - ------ - -The parchment containing these Articles of the Barons may have been the -identical Schedule actually prepared by the rebel leaders previous to -the meeting; but, more probably, it was written out at Runnymede during -the conference on the 15th (or between two conferences on that day) by -one of the clerks of the royal Chancery. This is more in keeping with -its heading (written in the same hand, and apparently at the same time -as the body of the deed), _Ista sunt capitula quae barones petunt et -dominus rex concedit_. - -Likely enough, it followed closely the words of the baronial Schedule; -but it may have contained some slight modifications in favour of the -Crown. One such, at least, was inserted, apparently as an afterthought -(on the intervention of the King perhaps, or one of his friends); -articles 45 and 46, as originally conceived, have been subsequently -connected by a rude bracket, and a qualifying proviso added which -practically bestowed on the Archbishop the powers of an arbitrator to -determine whether both articles should be altered in favour of the Crown -or no.[37] The entire document is in a running hand, and appears to have -been rapidly though carefully written. Its engrossment upon parchment -with a quill pen must have occupied several hours; but a diligent -copyist would not find it beyond his powers to complete the task in one -day. - ------ - -Footnote 37: - - Cf. Blackstone, _Great Charter_, xvii.: "subjoined in a more hasty - hand, ... as if added at the instance of the King’s commissioners upon - more mature deliberation." - ------ - -Tuesday, Wednesday and Thursday were consumed in further negotiations as -to matters of detail; in reducing the heads of agreement already -accepted to the more binding form of a feudal charter; and in engrossing -several copies for greater security. Everything was, however, ready for -a final settlement on Friday the 19th. At the conference held on that -day the conclusion of the final concord probably included several steps; -among others, the nomination by the opposition, with the King’s tacit -acquiescence, of twenty-five barons to act as Executors under chapter -61,[38] the solemn sealing and delivery of several original copies of -the Great Charter in its final form, the taking of an oath by all -parties to abide by its provisions, and the issue of the first batch of -writs of instructions to the sheriffs. - ------ - -Footnote 38: - - See _infra_ under that chapter. - ------ - -Blackstone[39] thinks that the barons on that day renewed their oaths of -fealty and homage. It is more probable that, until John had actually -carried out the more pressing reforms promised in Magna Carta, they -refused formally to swear allegiance, undertaking, however, in the -hearing of the two archbishops and other prelates, that they would keep -the peace and furnish security to that effect in any form that John -might name, except only by delivery of their castles or of hostages.[40] - ------ - -Footnote 39: - - _Great Charter_, p. xxiv. - -Footnote 40: - - See Protest of Archbishops _infra_, p. 52. - ------ - -The statement that Friday, 19th June, was the day on which peace was -finally concluded rests on unmistakable evidence. On 21st June, John -wrote from Windsor to William of Cantilupe, one of his captains, -instructing him not to enforce payment of any unpaid balances of -“tenseries”[41] demanded since the preceding Friday, “on which day peace -was made between the King and his barons.”[42] - ------ - -Footnote 41: - - Mr. Round explains this word in a learned appendix (_Geoffrey de - Mandeville_, p. 414) to mean “blackmail,” _i.e._ “money extorted under - pretence of protection or defence.” - -Footnote 42: - - See _Rot. Claus._, p. 225 (17 John membrane 31). The evidence of this - writ does not stand alone. In another writ on the same membrane of the - _Close Rolls_, dated 19th June, John informs his half-brother, the - Earl of Salisbury, that he has concluded peace, and instructs him to - restore certain lands and castles immediately, as this had been made a - condition of peace. See also the writ to Stephen Harengod _infra_, p. - 49. - ------ - -It has been taken for granted by many historians that the peace was -finally concluded, and the Great Charter actually sealed and issued on -the 15th, not on the 19th.[43] The fact that all four copies of Magna -Carta still extant bear this date seems to have been regarded as -absolutely conclusive on this point. Experts in diplomatics, however, -have long been aware that elaborate charters and other documents, which -occupied a considerable time in preparation, usually bore the date, not -of their actual execution, but of the day on which were concluded the -transactions of which they form the record. Legal instruments were thus -commonly ante-dated (as it would be reckoned according to modern legal -practice). Thus it is far from safe to infer from Magna Carta’s mention -of its own date that the great seal was actually adhibited on the 15th -June. - ------ - -Footnote 43: - - Blackstone, however (_Great Charter_, xv.), speaks of a “conference - which lasted for several days, and did not come to a conclusion till - Friday, the 19th June.” - ------ - -Such presumption as exists points the other way. The Great Charter is a -lengthy and elaborate document, and it is barely possible that any one -of the four originals known to us could have been engrossed (to say -nothing of the adjustment of the substance and form) within one day. Not -only is it much longer than the Articles on which it is founded; but -even the most casual comparison will convince any unbiassed mind of the -slower rate of engrossment of the Charter. All four copies show marks of -great deliberation, while those at Lincoln and Salisbury in particular -are exquisite models of leisurely and elaborate penmanship. The highly -finished initial letters of the first line and other ornamental features -may be instructively compared with the plain, business-like, rapid hand -of the Articles. How many additional copies now lost were once in -existence bearing the same date, it is impossible to say; but each of -those still extant may well have occupied four days in the writing.[44] - ------ - -Footnote 44: - - Miss Norgate, _John Lackland_, p. 234, acquiesces in the view - generally received, fixing Monday as the day on which the final - concord was arrived at, but she relies for evidence on a more than - doubtful interpretation of what is undoubtedly an error in the copy of - a writ by King John appearing on the _Patent Rolls_. This writ, which - as copied in the _Rolls_ bears to be dated 18th June (erroneously as - will immediately be shown), is addressed to Stephen Harengod (in terms - closely resembling those of the writ already cited from the _Close - Rolls_ addressed to William of Cantilupe), announcing _inter alia_ - that terms of peace had been agreed upon “last Friday.” Miss Norgate - contends with reason that there must be a mistake somewhere, since on - the Friday preceding the 18th, negotiations had not even begun. She is - confident that "the ‘die Veneris’ which occurs three times in the writ - is in each case an unquestionable, though unaccountable, error for - ‘die Lunae.’" Yet, it is unlikely that a scribe writing three days - after so momentous an event could have mistaken the day of the week. - It is infinitely more probable that in writing xxiij. he formed the - second “x” so carelessly that it was mistaken by the enrolling clerk - for a “v.” The correct date is thus the 23rd, and the reference is to - Friday the 19th. This presumption becomes a certainty by comparison - with the words of the writ to William of Cantilupe, dated the 21st (of - the existence of which Miss Norgate was probably not aware). - -A comparison between the two documents shows few changes of importance -in the tenor.[45] - ------ - -Footnote 45: - - Blackstone, _Great Charter_, xviii., has given a careful analysis of - the points of difference. - ------ - -The one outstanding addition is the insertion, in an emphatic form, both -at the beginning and at the end of the Charter, of a general declaration -in favour of the freedom and rights of the Church. The inference seems -to be that a new influence was brought to bear, between the preparation -of the draft and that of the Charter. It was the Archbishop of -Canterbury and his friends who thus converted the original baronial -manifesto into something more nearly resembling a declaration of rights -for the nation at large. One or two minor alterations seem slightly to -benefit the Crown,[46] while several others, rightly viewed, suggest an -influence at work unfavourable to the towns and trading classes.[47] - ------ - -Footnote 46: - - _E.g._ chapters 48 and 52. For alterations directed against the - trading classes, see chapters 12, 13, 35, and 41 _infra_. - -Footnote 47: - - Miss Norgate, _John Lackland_, 233, takes a different view, holding - that the influence of Stephen Langton dates from an earlier period. - The original articles “are obviously not the composition of the barons - mustered under Robert Fitz-Walter,” who could never have risen to “the - lofty conception embodied in the Charter—the conception of a contract - between King and people which should secure equal rights to every - class and every individual in the nation.” The correctness of this - estimate is discussed _infra_. - ------ - -In addition to the various originals of the Charter issued under the -great seal, chapter 62 provides that authenticated copies should be made -and certified as correct by “Letters Testimonial,” under the seals of -the two archbishops with the legate and the bishops. This was done, but -the exact date of their issue is unknown.[48] - ------ - -Footnote 48: - - No specimen of these Letters Testimonial is known to exist, but a copy - is preserved on folio 234 of the _Red Book of the Exchequer_. See - Appendix. - ------ - -The same Friday which thus saw the completion of negotiations saw also -the issue of the first batch of letters of instructions to the various -sheriffs, telling them that a firm peace had been concluded, by God’s -grace, between John and the barons and freemen of the kingdom, as they -might hear and see by the Charter which had been made, and which was to -be published throughout the district, and firmly observed. Each sheriff -was further commanded to cause all in his bailiwick to make oath -according to the form of the Charter to the twenty-five barons or their -attorneys, and further, to see to the appointment of twelve knights of -the county in full County Court, in order that they might declare upon -oath all evil customs requiring to be reformed, as well of sheriffs as -of their servants, foresters, and others.[49] This was held to apply -chiefly to the redress of forest grievances. - ------ - -Footnote 49: - - See _Rot. Pat._, I. 180, and _Select Charters_, 306–7. - ------ - -Apparently, four days elapsed before similar letters, accompanied by -copies of the Charter, could be sent to every sheriff. During the same -few days, several writs (some of which have already been mentioned) were -dispatched to military commanders with orders to stop hostilities. A few -writs, dated mostly 25th June, show that some obnoxious sheriffs had -been removed to make way for better men. Hubert de Burgh, a moderate -though loyal adherent, and a man generally respected, was appointed -Justiciar in room of the hated Peter des Roches. On 27th June, another -writ directed the sheriffs and the elected knights to punish, by -forfeiture of lands and chattels, all those who refused to swear to the -twenty-five Executors within a fortnight. All these various instructions -may be regarded as forming part of the settlement of the 19th of June, -and were dispatched with the greatest rapidity possible. - -Even after the settlement arrived at on Friday, some minor points of -dispute remained. The barons refused to be satisfied without substantial -security that the reforms and restorations agreed on would be carried -out by the King; they demanded that both the city of London and the -Tower of London should be left completely under their control as pledges -of John’s good faith, until 15th August, or longer, if the reforms had -not then been completed. John obtained a slight modification of these -demands; he surrendered the city of London to his opponents, as they -asked; but placed the Tower in the neutral custody of the Archbishop of -Canterbury. These conditions were embodied in a supplementary treaty, -which describes itself as _Conventio facta inter Regem Angliae et -barones ejusdem regni_.[50] If the barons distrusted John, he was -equally distrustful of them, demanding the security they had promised -for fulfilment of their part of the original compact. He now asked a -formal charter in his favour that they would observe the peace and their -oaths of homage, which they point-blank refused to grant. The King -appealed to the prelates without effect. The archbishops, with several -suffragans, however, put a formal protest on record of the barons’ -promise and subsequent refusal to keep it.[51] - ------ - -Footnote 50: - - _New Rymer_, I. 133. See Appendix. It is undated, but must be later - than the letters to sheriffs concerning election of twelve knights, to - which it alludes. - -Footnote 51: - - _Rot. Pat._, p. 181. As we have to depend for our knowledge of this - important protest on one copy, engrossed on the back of a membrane of - an official roll (No. 18 of John’s 17th year), it is possible to doubt - its genuineness; but it is unlikely to be purely a forgery. - ------ - -The two archbishops and their brother prelates entered a second protest -of a different nature. They seem to have become alarmed by the drastic -measures adopted or likely to be adopted, founded on the verdicts of the -twelve knights elected in each county to carry into effect the various -clauses of the Great Charter directed against abuses of the Forest laws. -Apparently, it was feared that reforms of a sweeping nature would -result, and practically abolish the royal forests altogether. -Accordingly, they placed their protest formally on record—acting -undoubtedly in the interests of the Crown, feeling that as mediators -they were bound in some measure to see fairplay. They objected to a -strained construction of the words of the Charter, holding that the -articles in question ought to be understood as limited; all customs -necessary for the preservation of the forests should remain in -force.[52] - ------ - -Footnote 52: - - See _Rot. Pat._ and _New Rymer_, I. 134. - ------ - -The provisions referred to were, as is now well known, chapters 47, 48, -and 53 of Magna Carta itself, and not, as Roger of Wendover states, a -separate Forest Charter.[53] That writer was led into this unfortunate -error by confusing the charter granted by King John with its re-issue by -his son in 1217, when provisions for the reform of the forest law _were_ -framed into a separate supplementary charter. From Roger’s time onwards, -the charters of Henry III. were reproduced in all texts and treatises, -in place of the real charter actually granted by John. Sir William -Blackstone was the first commentator to discover this grievous error, -and he clearly emphasized the grave differences between the terms -granted by John and those of his son, showing in particular that the -former king granted no separate Forest Charter at all.[54] - ------ - -Footnote 53: - - See R. Wendover, III. 302-318. - -Footnote 54: - - _Great Charter_, p. xxi. - ------ - -Before the conferences at Runnymede came to an end, confidence in the -good intentions of the twenty-five Executors, drawn it must be -remembered entirely from the section of the baronage most extreme in -their views and most unfriendly to John, seems to have been completely -lost. If we may believe Matthew Paris,[55] a second body or committee of -thirty-eight barons was nominated, representing other and more moderate -sections of the baronage, to act as a check on the otherwise -all-powerful oligarchy of twenty-five despots. If this second committee -was ever really appointed, no details have been preserved as to the date -of its selection, or as to the exact powers entrusted to it. - ------ - -Footnote 55: - - _Chron. Maj._, II. 605-6. - ------ - -If the rebel leaders expected to arrive at a permanent settlement of -their disputes when they came to meet the King on the morning of the -15th day of June, it must have been evident to all before the 23rd, that -John only made the bargain in order to gain time and strength to break -it. Three weeks, indeed, before John granted Magna Carta, he had begun -his preparations for its repudiation. In a letter of 29th May, addressed -to the Pope, there may still be read his own explanation of the causes -of quarrel, and how he urged, with the low cunning peculiar to him, that -the hostility of the rebels prevented the fulfilment of his vow of -crusade. In conclusion, he expressed his willingness to abide by the -Pope’s decision on all matters at issue. - -John, then, at Runnymede was merely waiting for two events which would -put him in a position to throw off the mask—the favourable answer he -confidently expected from the Pope, and the arrival of foreign troops. -Meanwhile, delay was doubly in his favour; since the combination formed -against him was certain, in a short time, to break up. It was, in the -happy phrase of Dr. Stubbs,[56] a mere “coalition,” not an "organic -union"—a coalition, too, in momentary danger of dissolving into its -original factors. The barons were without sufficient sinews of war to -carry a protracted struggle to a successful issue. Very soon, both sides -to the treaty of peace were preparing for war. The northern barons, -anticipating the King in direct breach of the compact, began to fortify -their castles. John, in equally bad faith, wrote for foreign allies, -whilst he anxiously awaited the Pope’s answer to his appeal. - ------ - -Footnote 56: - - Stubbs, _Const. Hist._, II. 3. - ------ - -Langton and the bishops still struggled to restore harmony. The 16th -July was fixed for a new conference. John did not attend; but it was -probably at this Council that in his absence a papal bull was read -conferring upon a commission of three—the Bishop of Winchester, the -Abbot of Reading, and the legate Pandulf—full powers to excommunicate -all “disturbers of the King and Kingdom.” No names were mentioned, but -these powers might clearly be used against Langton and his friends. The -execution of this sentence was delayed, in the groundless hope of a -compromise, till the middle of September, when two of the commissioners, -Pandulf and Peter of Winchester, demanded that the Archbishop should -publish it; and, on his refusal, they forthwith, in terms of their papal -authority, suspended him from his office. Stephen left for Rome, and his -absence at a critical juncture proved a national misfortune. The -insurgents lost in him, not only their bond of union, but also a -wholesome restraint. His absence must be reckoned among the causes of -the royalist reaction soon to take place. After his departure, a papal -bull arrived (in the end of September) dated 24th August. This is an -important document in which Innocent, in the plainest terms, annuls and -abrogates the Charter, after adopting all the facts and reproducing all -the arguments furnished by the King. Beginning with a full description -of John’s wickedness and repentance, his surrender of England and -Ireland, his acceptance of the Cross, his quarrel with the barons; it -goes on to describe Magna Carta as the result of a conspiracy, and -concludes, “We utterly reprobate and condemn any agreement of this kind, -forbidding, under ban of our anathema, the aforesaid king to presume to -observe it, and the barons and their accomplices to exact its -performance, declaring void and entirely abolishing both the Charter -itself and the obligations and safeguards made, either for its -enforcement or in accordance with it, so that they shall have no -validity at any time whatsoever.”[57] - ------ - -Footnote 57: - - The original bull with the seal of Innocent still attached is - preserved in the British Museum (Cotton, Cleopatra E 1), and is - carefully printed by Bémont, _Chartes des Libertés Anglaises_, p. 41. - It may also be read _inter alia_ in Rymer and in Blackstone. - ------ - -A supplementary bull, of one day’s later date, reminded the barons that -the suzerainty of England belonged to Rome, and that therefore nothing -could be done in the kingdom without papal consent.[58] Thereafter, at a -Lateran Council, Innocent formally excommunicated the English barons who -had persecuted “John, King of England, crusader and vassal of the Church -of Rome, by endeavouring to take from him his kingdom, a fief of the -Holy See.”[59] - ------ - -Footnote 58: - - The text is given by Rymer. - -Footnote 59: - - See Rymer, and Bémont, _Chartes_, xxv. - ------ - -Meanwhile, the points in dispute had been submitted to the rude -arbitrament of civil war, in which the first notable success fell to -King John in the capture, by assault, of Rochester Castle on 30th -November. The barons had already made overtures to Louis, the French -King’s son, to whom they promised as a reward for his help, yet not -perhaps with entire sincerity, the crown of England. Towards the end of -November, some seven thousand French troops arrived in London, where -they spent the winter—a winter consumed by John in marching from place -to place meeting, on the whole, with success, especially in the east of -England. John’s best ally was the Pope, who had no intention of allowing -a French Prince to usurp the throne of one who was now his humble -vassal. Gualo was dispatched from Rome to Philip, King of France, -forbidding his son’s invasion, and asking rather protection and -assistance for John as a papal vassal. Philip, anxious to meet the force -of the Pope’s arguments with some title to intervene, of more weight -than the invitation of a group of rebels, replied by an ingenious string -of fictions. He endeavoured to find defects in John’s title as King of -England, and to argue that therefore John was not _in titulo_ to grant -to the Pope the rights of an overlord. Among other arguments it was -urged that John had been convicted of treason while Richard was King, -and that this sentence involved forfeiture by the traitor of all rights -of succession to the Crown. Thus the Pope’s claim of intervention was -invalid, while Prince Louis justified his own interference by some -imagined right which he ingeniously argued had passed to him through the -mother of his wife. - -John had not relied solely on papal protection. A great fleet, collected -at Dover to block Louis with his smaller vessels in Calais harbour, was -wrecked on 18th May, 1216. The channel thus cleared of English ships, -the French Prince, setting sail on the night of the 20th May, landed -next morning without opposition. John, reduced to dependence on -mercenaries, did not dare oppose his landing. Gualo, now in England, on -28th May excommunicated Louis by name, and laid London under interdict. -Such thunderbolts had now lost their blasting power by frequent -repetition, and produced no effect whatever. On 2nd June, Louis entered -London amid acclamations, and marched against John at Winchester, which -he reached on 14th June, after John had fled. Ten days later, the -ancient capital of Wessex with its castles surrendered. Next day, the -French Prince attacked Dover, whose brave defender, Hubert de Burgh, -after some months of stubborn resistance, obtained a truce, on 14th -October, in order that the garrison might communicate with the King. -Before Hubert’s messengers could reach him, John was dying. During these -months, when the verdict of war was going against him in the south, he -had been acting in the north strenuously, and not without success. The -issue still trembled in the balance. A royalist reaction had begun. The -insolence of the French troops caused desertions from the barons. - -On 10th October John, after being feasted to excess by the loyal -burghers of Lynn, fell into an illness from which he never really -recovered. Nine days later, worn out by his wars, and by excitement and -chagrin, at this critical juncture when fortune might have taken any -sudden turn, he died at Newark Castle, in the early hours of the morning -of 19th October, 1216. His death saved the situation, rendering a -compromise possible. Almost immediately, there took place an entirely -new grouping of political forces inside and outside of England. A silent -compromise was effected, all parties returning gradually to their -natural allegiance to the son of John, on the understanding that the -Charter in its main features should be accepted as the basis of his -government. Prince Louis was soon discarded. Rome also fell into line; -the death of Innocent, on 16th June, 1216, had been equally opportune -with the death of John, four months later, removing an obstacle from the -path of peace. Gualo, in the name of Innocent’s successor, consented to -the re-issue of the Charter by the advisers of the young King Henry. - - PART II. - FEUDAL GRIEVANCES AND MAGNA CARTA. - - I. The Immediate Causes of the Crisis. - -Many attempts have been made to explain why the storm, long brewing, -broke at last in 1214, and culminated precisely in June of the following -year. Sir William Blackstone[60] shows how carefully historians have -sought for some one specific feature or event, occurring in these years, -of such moment as by itself to account for the rebellion crowned for the -moment with success at Runnymede. Thus Matthew Paris, he tells us, -attributes the whole movement to the sudden discovery of Henry I.’s -charter, long forgotten as he supposes, while other chroniclers agree in -assigning John’s inordinate debauchery as the cause of the civil -dissensions, dwelling on his personal misdeeds, real and imaginary. -“Sordida foedatur foedante Johanne, gehenna.”[61] Blackstone himself -suggests a third event, the appointment as Regent in John’s absence of -the hated alien and upstart, Peter des Roches, and his misconduct in -that office. - ------ - -Footnote 60: - - _The Great Charter_, p. vii. - ------ - -There is absolutely no necessity to seek in such trivial causes the -explanation of a great movement, really inevitable, the antecedents of -which were deeply rooted in the past. The very success of Henry -Plantagenet in performing the great task of restoring order in England, -for effecting which special powers had been allowed to him, made the -continuance of these powers to his successors unnecessary. From the day -of Henry’s death, if not earlier, forces were at work which only -required to be combined in order to control the licence of the Crown. -When the battle of order had been finally won—the complete overthrow of -the rebellion of 1173 may be taken as a crucial date in this -connection—the battle of liberty had, almost necessarily, to be begun. -The clamant problem of the hour was no longer how to prop up the -weakness of the Crown; but rather how to place restrictions on its -unbridled strength. - ------ - -Footnote 61: - - Several of the most often-repeated charges of personal wrongs - inflicted by King John upon the wives and daughters of his barons have - been in recent years refuted. See Miss Norgate, _John Lackland_, p. - 289. - ------ - -We need not wonder that the crisis came at last, but rather why it was -so long delayed. Events, however, were not ripe for rebellion before -John’s accession, and a favourable occasion did not occur previous to -1215. The doctrine of momentum accounts in politics for the long -continuance of old institutions in a condition even of unstable -equilibrium; an entirely rotten system of government may remain for ages -until at the destined moment comes the final shock. John conferred a -great boon on future generations, when by his arrogance and by his -misfortunes he combined against him all classes and interests in the -community. - -The chief factor in the coalition which ultimately triumphed over John -was undoubtedly the baronial party led by those strenuous nobles of the -north, who were, beyond doubt, goaded into active opposition by their -own personal and class wrongs, not by any altruistic promptings to -sacrifice themselves for the common good. Their complaints, too, as they -appear reflected in the imperishable record of Magna Carta, are mainly -grounded on breaches of the technical rules of feudal usage, not upon -the broad basis of constitutional principle. - -The feudal grievances most bitterly resented may be ranged under one or -other of two heads—increase in the weight of feudal obligations and -infringement, of feudal jurisdictions. The Crown, while it exacted from -its tenants the fullest measure of services legally exigible, interfered -persistently at the same time with those rights and privileges which had -originally balanced the obligations. The barons were compelled to give -more, while they received less. - -With the first group of baronial grievances posterity can sympathize in -a whole-hearted way, since the increase of feudal obligations inflicted -undoubted hardships on the Crown tenants, while the redress of these -involved no real danger to constitutional progress. One and all of the -grievances included in this first group could be condemned (as they were -condemned by various chapters of Magna Carta) without unduly reducing -the efficiency of the monarchy which still formed under John, as it had -done under William I., the sole source of security against the dangers -of feudal anarchy. Posterity, however, cannot equally sympathize with -the efforts of the barons to redress their second class of wrongs. -However great may have been the immediate hardships inflicted on members -of the aristocracy by the suppression of their feudal courts, lovers of -constitutional progress can only rejoice that all efforts to restore -them failed. Those clauses of Magna Carta which aimed at reversing the -great currents flowing towards royal justice, and away from private -baronial justice, produced no permanent effect, and posterity has had -reason to rejoice in their failure. - -Each group of feudal grievances—those connected with the increase of -feudal obligations, and those connected with the curtailment of feudal -immunities—requires special and detailed treatment.[62] To each class a -double interest attaches, since the resentment aroused by both formed so -vital an element in the spread of that spirit of determined resistance -to King John, which led to the winning of Magna Carta, and since, -further, an intimate knowledge of the exact nature of these grievances -throws a flood of light on many otherwise obscure clauses of the Great -Charter, and enables us to estimate how far the promised remedies were -ultimately carried into practice in later reigns. - ------ - -Footnote 62: - - See _infra_ the two sections (II. and III.) immediately following. - ------ - -The grievances of the barons, many and varied as they were, were not, -however, the only wrongs calling for redress. It is probable that the -baronial party, if they had acted in isolation from the other estates of -the realm, would have failed in 1215 as they had already failed in 1173. -If the Crown had retained the active sympathy of Church and common -people, John might have successfully defied the baronage as his father -had done before him. He had, on the contrary, alienated from the -monarchy all estates and interests, and had broadened the basis of -opposition to the throne by ill-treating the mercantile classes and the -peasantry who, from the reign of William I. to that of Henry II., had -remained the fast, if humble, friends of the Crown. The order-loving -tradesmen of the towns had been previously willing to purchase -protection from Henry at the price of heavy, even crushing taxation; but -when John continued to exact the price, and yet failed to furnish good -government in return, his hold on the nation was completely lost. So far -from protecting the humble from oppression, he was himself the chief -central oppressor, and he let loose, besides, his foreign officers and -favourites as petty local oppressors in all the numerous offices of -sheriff, castellan, and bailiff. Far from using the perfected machinery -of Exchequer, Curia, and local administration in the interests of good -government, John valued them merely as instruments of extortion and -outrage—as ministers to his lust and greed. - -The lower orders were by no means exempt from the increased taxation -which proved so galling to the feudal tenants. When John, during his -quarrel with Rome, repaid each new anathema of the Pope by fresh acts of -spoliation against the national Church, the sufferings of the clergy -were shared by the poor. In confiscating the goods of the monasteries, -he destroyed the chief provision for poor-relief known to the thirteenth -century. The alienation of the affections of the great masses of -lower-class Englishmen thus effected was never wholly undone, even by -the reconciliation of John with the Pope. Notwithstanding the -completeness and even abjectness of John’s surrender to Rome, he took no -special pains to reinstate himself in the good graces of the Church at -home. Innocent, secure at the Lateran, had issued his thunderbolts; and -John’s counter-strokes had fallen, not on him, but on the English -clergy—from the prelate to the parish priest, from the abbot to the -humblest monk. The measures taken, in 1213 and afterwards, to make good -to these victims some part of the heavy losses sustained, were quite -inadequate. The interests of the Church universal were often widely -different from those of the national Church, and such diversity was -never more clearly marked than in the last years of the reign of John. - -After 1213, John’s alliance with Rome brought new dangers in its train. -The united action of two tyrants, each claiming supreme powers, lay and -spiritual respectively, threatened to exterminate the freedom of the -English nation and the English Church. “The country saw that the -submission of John to Innocent placed its liberty, temporally and -spiritually, at his mercy; and immediately demanded safeguards.”[63] - ------ - -Footnote 63: - - Stubbs, _Select Charters_, 270. - ------ - -This union of tyrants naturally led to another union which checkmated -it, for the baronial opposition allied itself with the ecclesiastical -opposition. The urgency of their common need thus brought prelates and -barons into line—for the moment. The necessary leader was found in -Stephen Langton, who succeeded in preventing the somewhat divergent -interests of the two estates from leading them in opposite directions. - -All things were thus ripe for rebellion, and even for _united_ -rebellion; an opportunity only was required. Such an opportunity came in -a tempting form in 1214; for the King had then lost prestige and power -by his failure in the wars with France. He had lost the confidence of -his subjects by his quarrel with Rome, and he failed to regain it by his -reconciliation. He had lost the friendship of the national Church. His -unpopularity and vacillating nature had been thoroughly demonstrated. -Finally he had himself, in 1191, when plotting against his absent -brother Richard, successfully attacked and ousted the Regent Longchamp -from office, thus furnishing an example of rebellion, and of -successfully concerted action against the central government. - -The result was that, when the barons—the wildest spirits of the northern -counties taking always the lead—began active operations at a juncture of -John’s fortunes most favourable to their aspirations, not only had they -no opposition to dread from churchman or merchant, from yeoman or -peasant, but they might count on the sympathy of all and the active -co-operation of many. Further, John’s policy of misrule had combined -against him two interests usually opposed to each other, the party of -progress and the party of reaction. The influence of each of these may -be clearly read in the various chapters of Magna Carta. - -The progressive party consisted mainly of the heads of the more recently -created baronial houses, men trained in the administrative methods of -Henry II., who desired merely that the system of government they knew -should be properly enforced and carried out to its logical conclusions. -They demanded chiefly that the King should conduct the business of the -Exchequer and Curia according to the rules laid down by Henry II. -Routine and order under the new system were what this party desired, and -not a return to the unruly days of Stephen. Many of the innovations of -the great Angevin had now been loyally and finally accepted by all -classes of the nation; and these accordingly found a permanent -resting-place in the provisions of the Great Charter. In temporary -co-operation with this party, the usually rival party of reaction was -willing to act for the moment against the common enemy. There still -existed in John’s reign magnates of the old feudal school, who hoped to -wrest from the weakened hand of the King some measure of feudal -independence. They had indeed accepted such reforms as suited them, but -still bitterly opposed many others. In particular, they resisted the -encroachments of the royal courts of law which were gradually -superseding their private jurisdictions. For the moment, John’s crafty -policy, so well devised to gain immediate ends, and so unwise in the -light of subsequent history, combined these two streams, usually ready -to thwart each other, into a united opposition to his throne. Attacked -at the same moment by the votaries of traditional usage and by the -votaries of reform, by the barons, the trading classes, and the clergy, -no course was left him but to surrender at discretion. The movement -which culminated at Runnymede may thus best be understood as the -resultant of a number of different but converging forces, some of which -were progressive and some reactionary. - - II. The Crown and Feudal Obligations. - -Among the many evils calling loudly for redress in England at the -commencement of the thirteenth century, none spoke with more insistent -voice than those connected with feudal abuses. The objection of the -northern barons to pay the scutage demanded on 26th May, 1214, was the -spark that fired the mine. The most prominent feature of the Charter is -the solicitude everywhere displayed to define the exact extent of feudal -services and dues, and to prevent these from being arbitrarily -increased. A somewhat detailed knowledge of feudalism and feudal -obligations forms a necessary preliminary to any exact study of Magna -Carta. - -The precise relations of the Norman Conquest to the growth of feudalism -in England are complicated, and have formed the subject of much -controversy. The view now generally accepted, and with reason, is that -the policy of William the Conqueror accelerated the process in one -direction, but retarded it in another. Feudalism, regarded as a system -of government, had its worst tendencies checked, if not eradicated, by -the great upheaval that followed the coming of Duke William; feudalism, -considered as a system of land tenure, and as a social system, was, on -the contrary, formulated and developed. It is mainly as a system of land -tenure that it falls here to be considered. Originally, the relationship -between lord and tenant, dependent upon the double ownership of land (of -which each was, in a different sense, the proprietor), implied -obligations on both sides. The lord gave protection, while the tenant -owed services of various sorts. It so happened, however, that, with the -changes wrought by time, the legal obligations of the lord ceased to be -of much importance, while those of the vassal became more and more -burdensome. The tenant’s obligations varied in kind and in extent with -the nature of the tenure. It is difficult to frame an exact list of the -various tenures formerly recognized as distinct in English law: partly -because the classical authors of different epochs, from Bracton to -Blackstone, contradict each other; and partly because of the obscurity -of the process by which these tenures were gradually differentiated. The -word “tenure” originally meant “a holding” of any sort. Sir William -Blackstone,[64] after explaining the dependent nature of all real -property in England, thus proceeds: “The thing holden is therefore -styled a _tenement_, the possessors thereof _tenants_, and the manner of -their possession a _tenure_.” Tenure thus comes to mean the conditions -on which a tenant holds real estate under his lord, and the number of -tenures varies with the number of accepted types. - ------ - -Footnote 64: - - _Commentaries_, II. 59. - ------ - -The ancient classification differs materially from that in use at the -present day. The modern English lawyer (unless of an antiquarian turn of -mind) concerns himself only with three tenures: freehold (now -practically identical with socage), copyhold and leasehold. The two -last-mentioned may be rapidly dismissed, as they were of little -importance in the eyes of Littleton, or of Coke: leasehold embraces only -temporary interests, such as those of a tenant-at-will or for a limited -term of years; while copyhold is the modern form of tenure into which -the old unfree villeinage has slowly ripened. The ancient writers were, -on the contrary, chiefly concerned with holdings both permanent and free -(as opposed to leaseholds on the one hand and villeinage on the other). -Of such free tenures seven at least may be distinguished in the -thirteenth century, all of which have now come to be represented by the -same one of the three recognized modern tenures, namely, freehold or -socage. The free holdings existing in medieval England may be ranged -under the following heads, viz.: knight’s service, free socage, -fee-farm, frankalmoin, grand serjeanty, petty serjeanty, and burgage. - -(1) _Knight’s Service._ Medieval feudalism had many aspects; it was -almost as essentially an engine of war as it was a system of -land-holding. The normal return for which an estate was granted -consisted of the service in the field of a specific number of knights. -Thus the normal feudal holding was known as knight’s service, or tenure -in chivalry—the conditions of which must be constantly kept in view, -since by these rules the relations between John and his recalcitrant -vassals fell to be determined. When finally abolished at the -Restoration, there fell with knight’s service, it is not too much to -say, the feudal system of land tenure in England. “Tenure by barony” is -sometimes spoken of as a separate species, but may be more correctly -viewed as a variety of tenure in chivalry.[65] - ------ - -Footnote 65: - - See Pollock and Maitland, _History of English Law_, I. 218. - ------ - -(2) _Free Socage._ The early history of socage, with its division into -ordinary and privileged, is involved in obscurities which do not require -to be unravelled for the purpose at present on hand. The services which -had to be returned for both varieties were not military but -agricultural, and their exact nature, and amount varied considerably. -Although not so honourable as chivalry, free socage was less burdensome -in respect that two of the most irksome of the feudal incidents, -wardship and marriage, did not apply. When knight’s service was -abolished those who had previously held their lands by it, whether under -the Crown or under a mesne lord, were henceforward to hold in free -socage, which thus came to be the normal holding throughout England -after the Restoration.[66] - ------ - -Footnote 66: - - See Statute 12 Charles II. c. 24. - ------ - -(3) _Fee-farm_ was the name applied to lands held in return for services -which were neither military nor agricultural, but consisted only of an -annual payment in money. The “farm” thus indicates the rent paid, which -apparently might vary without limit, although it was long maintained -that a fee-farm rent must amount at least to one quarter of the annual -value. This error seems to have been founded on a misconstruction of the -Statute of Gloucester.[67] Some authorities[68] reject the claims of -fee-farm to rank as a tenure separate from socage; although chapter 37 -of Magna Carta seems to recognize the distinction. - ------ - -Footnote 67: - - See Pollock and Maitland, I. 274, n. - -Footnote 68: - - Pollock and Maitland, I. 218. - ------ - -(4) _Frankalmoin_ is the tenure by which pious founders granted lands to -the uses of a religious house. It was also the tenure on which the great -majority of glebe lands throughout England were held by the village -priests, the parsons of parish churches. The grant was usually declared -to have been made _in liberam eleemosinam_ or “free alms” (that is, as a -free gift for which no _temporal_ services were to be rendered).[69] In -Scots charters the return formally stipulated was _preces et lacrymae_ -(the prayers and tears of the holy men of the foundation for the soul of -the founder). - ------ - -Footnote 69: - - Littleton, II. viii. s. 133. - ------ - -(5) _Grand serjeanty_ was a highly honourable tenure sharing the -distinctions and the burdensome incidents of knight’s service, but -distinct in this, that the tenant, in place of ordinary military duties, -performed some specific office in the field, such as carrying the King’s -banner or lance, or else acted as his constable or marshal or other -household officer in the palace, or performed some important service at -the coronation.[70] - ------ - -Footnote 70: - - Littleton, II. viii. s. 153. - ------ - -An often-quoted example of a serjeanty is that of Sir John Dymoke and -his family, who have acted as the Sovereign’s champions at successive -coronations from Richard II. to Queen Victoria, ready to defend the -Monarch’s title to the throne, if questioned, by battle in the ancient -form. - -Grand serjeanties were liable to wardship and marriage, as well as to -relief, but not, as a rule, to payment of scutage.[71] William Aguilon, -we are told by Madox,[72] "was charged at the Exchequer with several -escuages. But when it was found by Inquest of twelve Knights of Surrey -that he did not hold his lands in that county by military tenure, but by -serjeanty of finding a Cook at the King’s coronation to dress victuals -in the King’s kitchen, he was acquitted of the escuages." - ------ - -Footnote 71: - - Littleton, II. viii. s. 158. - -Footnote 72: - - _History of Exchequer_, I. 650, citing _Pipe Roll_ of 18 Henry III. - ------ - -(6) _Petty serjeanty_ may be described in the words of Littleton as -“where a man holds his lands of our lord the king to yield to him yearly -a bow or sword, or a dagger or a knife ... or to yield such other small -things belonging to war.”[73] - ------ - -Footnote 73: - - See Littleton, II. ix. s. 159. With this may be compared the - definition given in chapter 37 of Magna Carta, where John speaks of - land thus held by a vassal as “quam tenet de nobis per servitium - reddendi nobis cultellos, vel sagittas vel hujusmodi.” - ------ - -The grant of lands on such privileged tenures was frequently made in -early days on account of the special favour entertained by the King for -the original grantee, due, it might be, to the memory of some great -service rendered at a critical juncture to the King’s person or -interests. A few illustrative examples may be cited from the spirited -description of a scholar whose accuracy can be relied upon. Serjeanties, -as Miss Bateson tells us, "were neither always military nor always -agricultural, but might approach very closely the service of knights or -the service of farmers.... The serjeanty of holding the King’s head when -he made a rough passage across the Channel, of pulling a rope when his -vessel landed, of counting his chessmen on Christmas Day, of bringing -fuel to his castle, of doing his carpentry, of finding his potherbs, of -forging his irons for his ploughs, of tending his garden, of nursing the -hounds gored and injured in the hunt, of serving as veterinary to his -sick falcons, such and many other might be the ceremonial or menial -services due from a given serjeanty."[74] - ------ - -Footnote 74: - - _Mediaeval England_, pp. 249-250. A similar tenure still exists in - Scotland under the name of "blench"—a tenure wherein the reddendo is - elusory, viz., the annual rendering of such small things as an arrow - or a penny or a peppercorn, “if asked only” (_si petatur tantum_). - ------ - -In the days before legal definition had done its work, it must often -have been difficult to say on which side of the line separating Petty -Serjeanties from Grand Serjeanties any particular holding fell. -Gradually, however, important and practical distinctions were -established, making it necessary that the boundary should be defined -with accuracy. In particular, the rule was established that Petty -Serjeanties, while liable for relief, were exempt altogether from the -burdensome incidents of wardship and marriage, which Grand Serjeanties -shared with lands held by ordinary Barony or Knight’s service.[75] Thus -the way was prepared for the practical identification of the Petty -Serjeanties with ordinary socage at a later date. - ------ - -Footnote 75: - - Littleton, II. viii. s. 158. - ------ - -(7) _Burgage_, confined exclusively to lands within free boroughs, is -mentioned as a separate tenure by Littleton,[76] and his authority -receives support from the words of chapter 37 of Magna Carta. Our -highest modern authorities,[77] however, consider that it never acquired -sufficiently distinct characteristics to warrant its acknowledgment as -such. They treat it rather as a special variety of socage, used where -the tenants were the members of a corporation. If their opinion must be -accepted for England, it follows that, from common antecedents, entirely -different results have developed in Scotland and in England -respectively. While, north of the Tweed, several of the well-established -English tenures have failed to make good their right to separate -recognition, burgage has established itself beyond a doubt. Even the -levelling process consummated by the Conveyancing (Scotland) Act of 1874 -has not entirely abolished its separate existence. - ------ - -Footnote 76: - - _Ibid._, II. x. s. 162. - -Footnote 77: - - Pollock and Maitland, I. 218. - ------ - -The explanation of such differences between English and Scottish usage -easily suggests itself. When feudalism first took root, the various -shades of distinction in the conditions of holding were exceedingly -numerous, and merged into one another by imperceptible degrees. The work -of definition came later, was essentially artificial in its nature, and -assumed different forms in different lands.[78] - ------ - -Footnote 78: - - Littleton and Coke seem almost to countenance two additional tenures, - viz., tenure by scutage or escuage, and tenure by Castle-guard. - Pollock and Maitland consider both as alternative names for knight’s - service. (See I. 251 and I. 257.) The latter is discussed _infra_ - under c. 29 of Magna Carta. - ------ - -These tenures, originally six or seven (according as we exclude or -include burgage), have yielded to the unifying pressure of many -centuries. Frankalmoin and Grand Serjeanty still exist, but rather as -ghosts than realities; the others have all been swallowed up in socage, -which has thus become practically identical with “free-hold.”[79] This -triumph of socage is the result of a long process. Fee-farm, burgage, -and petty serjeanty, always possessing many features in common, were -gradually assimilated in almost all respects, while a statute (12 -Charles II. c. 24) transformed tenure in chivalry also into socage. The -once humble socage has thus risen high, and now embraces most of the -land of England.[80] - ------ - -Footnote 79: - - Jenks, _Modern Land Law_, p. 14. - -Footnote 80: - - It has been well described by Pollock and Maitland (I. 294) as “the - great residuary tenure.” In Scotland the “residuary tenure” is not - socage but “feu” (resembling the English fee-farm). Holdings in feu - are still familiar to Scots lawyers. They are originated by a formal - charter, followed by registration (the modern equivalent of infeftment - or feudal investiture), thus preserving an unbroken connection with - the feudal conveyancing of the Middle Ages. - -The interest of historians naturally centres round tenure by knight’s -service, which is the very kernel of the feudal system. Lack of -definition in the middle ages was a fruitful source of quarrel. For a -century and more after the Norman Conquest, the exact amount and nature -of the military services due by a tenant to his lord were left vague and -undetermined. The early Norman Kings had gradually superseded the old -Anglo-Saxon Crown tenants by new ones of Norman or French extraction, -without formulating any code of regulations for the future. The whole of -England had thus been carved into a number of estates—the larger known -as honours or baronies, and the smaller as manors. Each Crown tenant -(with two exceptions, of which the Conqueror’s favourite foundation of -Battle Abbey was one) held his lands on condition of furnishing a -certain number of fully armed and mounted soldiers, always ready to obey -the King’s summons in the event of war. High authorities differ as to -when and by whom the amount of each vassal’s service was fixed. The -common view (promulgated by Prof. Freeman[81] with his usual vehemence), -attributes the allocation of specific service to Ranulf Flambard, the -unscrupulous tool of William Rufus. Mr. J. H. Round[82] has recently -urged convincing reasons in support of the older view which attributes -it to William I. Two facts, apparently, are certain: that within half a -century from the Conquest each military tenant was burdened with a -definite amount of knight’s service; and, further, that no formal record -of the amount of such service was made at the time. There were, as yet, -no written charters, and thus the possibility of disputes remained. -Probably such grants would be made in full _Curia_, and the only record -of the conditions would lie in the memory of the Court itself. - ------ - -Footnote 81: - - _Norman Conquest_, V. 377; _Hist. of William Rufus_, 335–7. - -Footnote 82: - - _Feudal England_, p. 228 _et seq._ - -Long before the date of Magna Carta, the various obligations had been -grouped into three classes, which may be arranged according to their -relative importance, as _services_, _incidents_, and _aids_. Under each -of these three heads, disputes continually arose between the lord who -exacted and the vassal who rendered them.[83] - ------ - -Footnote 83: - - All three forms of feudal obligation—service, incidents, and aids—have - long been obsolete in England. The statute 12 Charles II. c. 24 swept - away the feudal _incidents_ along with the feudal system; centuries - before, _scutages_ in lieu of military _service_ had become obsolete - in the transition from the system of feudal finance to that of - national finance, effected by the Crown in the thirteenth and - fourteenth centuries. Feudal _aids_ were also long obsolete, although - James I., in desperate straits for money, had attempted to revive two - of them. In France the feudal system, with all its burdensome - obligations, remained in full vigour until it was abolished in one - night by the famous decree of the National Assembly of 4th August, - 1790. In Scotland, the feudal system of land tenure still exists, and - certain of its incidents (_e.g._ reliefs and compositions or fines for - alienation) are exacted at the present day. - ------ - -The very essence of the feudal relation between the King as overlord and -the Crown tenant as vassal consisted in the liability of the latter to -render “suit and service,” that is, to follow his lord’s banner in time -of war, and to attend his court in time of peace. It will be more -convenient, however, to reserve full consideration of these services -until the comparatively uncomplicated obligations known as incidents and -aids have been first discussed. - -I. _Feudal Incidents._ In addition to “suit and service,” the lord -reaped, at the expense of his tenants, a number of casual profits, which -thus formed irregular supplements to his revenue. These profits, -accruing, not annually, but on the occurrence of exceptional events, -came to be known as “feudal incidents.” They were gradually defined with -more or less accuracy, and their number may be given as six, viz.: - -Reliefs, Escheats, Wardships, Marriages, Primer seisins, and Fines for -Alienation.[84] - ------ - -Footnote 84: - - Blackstone, _Commentaries_, II. 63, however arranges these in a - different order, and mentions as a seventh incident “aids,” which are - here reserved for separate treatment. - -(_a_) _Relief_ is easily explained. The fee, or _feudum_, or hereditary -feudal estate, seems to have been the result of a gradual evolution from -the old _beneficium_ (or estate held merely for one lifetime), and that -again from the older _precarium_ (or estate held only during the will of -the overlord). Grants of land, originally subject to revocation by the -lord, had gradually attained fixity of tenure throughout the life of the -original grantee; and, later on, they became transmissible to his -descendants. The hereditary principle at last completely triumphed; the -Capitulary of Kiersey (A.D. 877) is said to be the first authoritative -recognition of the heir’s absolute right to succeed. The process was a -gradual one, and it would seem that even after the Norman Conquest, this -rule of hereditary descent was not established beyond possibility of -dispute.[85] This right of the heir to succeed always remained subject -to one condition, namely, the payment of a sum of money known as -“relief.” This was theoretically an acknowledgment that the new tenant’s -right to ownership was incomplete, until recognized by his superior—a -reminiscence of the earlier _precarium_ from which the _feudum_ had -developed. - ------ - -Footnote 85: - - See Pollock and Maitland, I. 296. - -_Relief_, then, is the sum payable to a feudal overlord by an heir for -recognition of his title to succeed the last tenant in possession. The -amount remained long undefined, and the lord frequently asked exorbitant -sums.[86] - ------ - -Footnote 86: - - See _infra_, under c.2, for the steps in the gradual process whereby - this evil was redressed. - ------ - -(_b_) _Escheat_, it has been said, "signifies the return of an estate to -a lord, either on failure of issue from the tenant or upon account of -such tenant’s felony."[87] This lucid description conveys a good general -conception of escheat; but it is inaccurate in at least two respects. It -does not exhaust the occasions on which escheat occurs, and it errs in -speaking of “the return” of an estate to a lord, when, more accurately, -that estate had never left him, but always remained his property, -subject only to a burden, which was now removed. In theory, the feudal -grant of lands was always conditional; and when the condition was -broken, the grant fell, and the lord found himself, automatically as it -were, once more the absolute unburdened proprietor, as he had been -before the grant was made. Thereafter, he held the land in demesne, -unless he chose to make a new grant to another tenant. The word -“escheat” was applied indifferently to the lord’s right to such -reversions, and to the actual lands which had thus reverted. In warlike -and unsettled times the right was a valuable one, for whole families -might become rapidly extinct. When the last tenant left no heir, it was -obvious that the original grant had exhausted itself. Similarly, when a -landholder was convicted of felony, his blood became, in the phrase of a -later day, attainted, and no one could succeed to any estate through -him. If a man failed in the ordeal of water provided by the Assize of -Clarendon in 1166 for those accused of heinous crimes, his estates also -escheated to his lord. It is true that a complication arose when it was -of treason that the tenant had been convicted. In that case the king, as -the injured party, had prior rights which excluded those of the lord. -The lands of traitors were forfeited to the Crown. Even in the case of -felony the king had a limited right to the lands during a period which -was strictly defined by Magna Carta.[88] - ------ - -Footnote 87: - - R. Thomson, _Magna Charta_, p. 236. - -Footnote 88: - - _Infra_, c. 32. - ------ - -The tenant’s felony and failure of issue were the two main grounds of -escheat, but not the only ones; the goods of fugitives from justice and -of those who had been formally outlawed also escheated, and Glanvill -adds another case,[89] namely, female wards guilty of unchastity (an -offence which spoiled the king’s market). Failure to obey a summons to -the feudal levy in time of war might also be made a ground of -forfeiture.[90] - ------ - -Footnote 89: - - VII. 17. - -Footnote 90: - - Madox, I. 663. - ------ - -Escheat was thus a peculiarly valuable right both to the Crown and to -mesne lords. Its effect was simply this: one link in the feudal chain -was struck out, and the links on either side were fitted together. If -the defaulter was a Crown tenant, all his former sub-tenants, whether -freeholders or villeins, moved up one rung in the feudal ladder and held -henceforward directly of the king, who enjoyed the entire complexus of -legal rights previously enjoyed by the defaulter in addition to those -previously enjoyed by himself: rents, crops, timber, casual profits, and -advowsons of churches falling vacant; jurisdictions and the profits of -jurisdictions; services of villeins; reliefs, wardships, and marriages -of freeholders as these became exigible. - -The Crown, however, while taking everything the defaulter might have -taken before default, must take nothing more—so at least Magna Carta[91] -provides. The rights and status of innocent sub-tenants must not be -prejudiced by the misdeeds of their defaulting mesne lord. - ------ - -Footnote 91: - - See _infra_, c. 43. - ------ - -(_c_) _Wardships_ are described in the _Dialogus de Scaccario_ as -“escheats along with the heir” (_escaeta cum herede_).[92] This -expression does not occur elsewhere, but it would be impossible to find -any description of wardship which throws more light on its nature and -consequences. When the heir of a deceased tenant was unfitted to bear -arms by reason of his tender years, the lands were practically, during -his minority, without an effective owner. The lord accordingly treated -them as temporarily escheated. During the interval of nonage, the lord -entered into possession, drew the revenues, and applied them to his own -purposes, subject only to the obligation of maintaining and training the -heir in a manner suited to his station in life. Frequently, considerable -sums were thus spent. The _Pipe Roll_ of the seventeenth year of Henry -II. shows how out of a total revenue of £50 6s. 8d. from the Honour of -“Belveeir,” £18 5s. had been expended on the children of the late -tenant.[93] Wardship came to an end with the full age of the ward, that -is, in the case of a military tenant, on the completion of his -twenty-first year, “in that of a holder in socage on the completion of -the fifteenth, and in the case of a burgess when the boy can count -money, measure cloth, and so forth.”[94] Wardship of females normally -ended at the age of fourteen, "because that a woman of such age may have -a husband able to do knight’s service."[95] - ------ - -Footnote 92: - - See Hughes’ edition, p. 133. - -Footnote 93: - - See _Dialogus_, p. 222 (citing _Pipe Roll_, p. 27). - -Footnote 94: - - Glanvill, VII. c. 9. In socage and burgage tenures no incident of - wardship was recognized; the guardianship went to the relations of the - ward, and not to his feudal lord. Somewhat complicated, but - exceedingly equitable, rules applied to socage. The maternal kindred - had the custody, if the lands came from the father’s side; the - paternal kindred, if from the mother’s side (Glanvill, VII. c. 11). In - plain language, the boy and his property were entrusted to those who - had no interest in his death. - -Footnote 95: - - Littleton, II. iv. s. 103. - ------ - -All the remunerative consequences flowing from escheat flowed also from -wardship—rents, casual profits, advowsons, services of villeins, and -reliefs. Unlike escheats, however, the right of the Crown here was only -temporary, and Magna Carta sought[96] to provide that the implied -conditions should be respected by the Crown’s bailiffs or nominees. The -lands must not be wasted or exhausted, but restored to the young owner -when he came of age in as good condition as they had been at the -commencement of the wardship. - ------ - -Footnote 96: - - See under c. 5. - ------ - -One important aspect of this right ought to be specially emphasized. The -Crown’s wardship affected bishoprics as well as lay baronies, extending -over the temporalities of a See between the death of one prelate and the -instalment of his successor. Thus, it was to the king’s interest to -place obstacles in the way of all appointments to vacant sees, since the -longer the delay, the longer the Exchequer drew the revenues and casual -profits.[97] - ------ - -Footnote 97: - - What these were may be read in the _Pipe Rolls_, _e.g._, in that of 14 - Henry II., when the Bishopric of Lincoln was vacant. - -This right was carefully reserved to the Crown, even in the very -comprehensive charter in which John granted freedom of election, dated -21st November, 1214.[98] - ------ - -Footnote 98: - - See _Statutes of the Realm, Ch. of Liberties_, p. 5, and _Sel. - Charters_, p. 288: “Salva nobis et haeredibus nostris custodia - ecclesiarum et monasteriorum vacantium quae ad nos pertinent.” - Contrast the terms of Stephen’s Oxford Charter; _Sel. Charters_, pp. - 120-1. - ------ - -(_d_) _Marriage_ as a feudal incident belonging to the lord is difficult -to define generally, since its meaning changed. Originally it seems to -have implied little more than the right of a lord to forbid an heiress, -holding a fief under him, to marry a personal enemy, or some one -otherwise unsuitable. Such veto was only reasonable, since the husband -of the heiress would become the owner of the fee and the tenant of the -lord. This negative right had almost necessarily a positive side; the -claim to concur in the choice of a husband gradually expanded into an -absolute right of the lord to dispose by sale or otherwise of the lands -and person of his female ward. The prize might go as a bribe to any -unscrupulous gentleman of fortune who placed his sword at the King’s -disposal, or it might be made the subject of auction to the highest -bidder. The lady passed as a mere adjunct to her own estates, and -ceased, strictly speaking, to have any voice in choosing a partner for -life. She might protect herself indeed against an obnoxious husband by -out-bidding her various suitors. Large sums were frequently paid for -leave to marry a specified individual or to remain single. - -This right seems, at some uncertain date, to have been extended from -females to males, and instances of sums thus paid occur in the _Pipe -Rolls_. It is difficult at first sight to imagine how the Crown found a -market for such wares as male wards; but probably wealthy fathers were -ready to purchase desirable husbands for their daughters. Thus in 1206 a -certain Henry of Redeman paid forty marks for the hand and lands of the -heir of Roger of Hedon, “_ad opus filiae suae_,”[99] while Thomas Basset -secured a prize in the person of the young heir of Walerand, Earl of -Warwick, to the use of any one of his daughters.[100] This extension to -male heirs is usually explained to have been founded on a strained -construction of chapter 6 of Magna Carta, but the beginnings of the -practice can be traced much earlier than 1215.[101] The lords’ right to -sell their wards was recognized and defined by the Statute of Merton, -chapter 6. The attempts made to remedy some of the most serious abuses -of the practice may be read in Magna Carta.[102] - ------ - -Footnote 99: - - _Rotuli de oblatis et finibus_, p. 354. - -Footnote 100: - - _Rot. Claus._, pp. 37, 55. - -Footnote 101: - - Pollock and Maitland, I. 305. - -Footnote 102: - - See _infra_, under chapters 6, 7, and 8. - ------ - -Mr. Hallam[103] considers that “the rights, or feudal incidents, of -wardship and marriage were nearly peculiar to England and Normandy,” and -that the French kings[104] never “turned this attribute of sovereignty -into a means of revenue.” - ------ - -Footnote 103: - - _Middle Ages_, II. 429. - -Footnote 104: - - p. 437. - ------ - -(_e_) _Primer Seisin_, which is usually regarded as a separate incident, -and figures as such in Blackstone’s list, is perhaps better understood, -not as an incident at all, but rather as a special procedure—effective -and summary—whereby the Crown could enforce the four incidents already -described. It was an exclusive prerogative of the Crown, denied to mesne -lords.[105] When a Crown tenant died, the King’s officers had the right -to enter upon immediate possession, and to exclude the heir, who could -not touch his father’s lands without specific permission from the Crown. -He had first to prove his title by inquest, to give security for any -balance of relief and other debts unpaid, and to perform homage.[106] It -will be readily seen what a strong strategic position all this assured -to the King in any disputes with the heir of a dead vassal. If the -Exchequer had doubtful claims against the deceased, its officials could -satisfy themselves before admitting the heir to possession. If the heir -showed any tendency to evade payment of feudal incidents, the Crown -could checkmate his moves. If the succession was disputed, the King -might favour the claimant who pleased or paid him most; or, under colour -of the dispute, refuse to disgorge the estate altogether—holding it in -custody analogous to wardship, and meanwhile drawing the profits. If the -son and heir happened to be from home when his father died, he would -probably experience great difficulty, when he returned, in forcing the -Crown to restore the estates. Such was the experience of William -Fitz-Odo on returning from Scotland in 1201 to claim his father’s -carucate of land in Bamborough.[107] Primer seisin was thus not so much -a separate incident, as a right peculiar to the Crown to take summary -measures for the satisfaction of all incidents or other claims against a -deceased tenant or his heir. Magna Carta admitted this prerogative -whilst guarding against its abuse.[108] - ------ - -Footnote 105: - - The Bishop of Durham enjoyed it, so it seems to be stated in a charter - extorted from him in 1303 by the men of his fief (see Lapsley, _Pal. - of Durham_, p. 133). But this forms no real exception; since the - Bishop, as an Earl Palatine, enjoyed exceptionally the _regalia_ of a - king. - -Footnote 106: - - See Pollock and Maitland, I. 292. It appears from statute of - Marlborough, c. 16, that _primer seisin_ extended over lands held by - serjeanty as well as by knight’s service. - -Footnote 107: - - _Rotuli de oblatis_, p. 114. - -Footnote 108: - - Sir Edward Coke (_Coke upon Littleton_, 77 A) is the original source - of much confusion as to the nature of primer seisin, which he seems to - have considered as a second and additional relief exacted by the Crown - amounting to the whole rent of the first year. The Popes, he further - held (equally erroneously), were only imitating this practice when - they exacted one year’s rent from every newly granted benefice under - the name of “first fruits.” These errors have been widely followed - (_e.g._ Thomson, _Magna Charta_, p. 416, Taswell Langmead, _Const. - Hist._, p. 50). - ------ - -(_f_) _Fines for alienation_ occupy a place by themselves. Unlike other -incidents already discussed, they became exigible not on the tenant’s -death, but on his wishing to part with his estate to another during his -own lifetime, either as a gift or in return for a price. How far could -he effect this without consent of his lord? This was, for many -centuries, a subject of frequent and heated disputes, often settled by -compromises, in which the tenant paid a fine to the lord for permission -to sell. Such fines are payable at the present day in Scotland (under -the name of “compositions”) from feus granted prior to 1874; and, where -no sum has been mentioned in the Feu Charter, the law of Scotland -defines the amount exigible as one year’s rent. John’s Magna Carta -contains no provisions on this subject. Disputes, long and bitter, took -place later in the thirteenth century; but their history is irrelevant -to the present inquiry.[109] - ------ - -Footnote 109: - - See Taswell Langmead, _Const. Hist._, pp. 51-2; also Pollock and - Maitland, II. 326. _Cf._, however, c. 39 of the re-issue of Magna - Carta in 1217. - ------ - -II. _Feudal Aids._ The feudal tenant, in addition to fulfilling all the -essentials of the feudal relation and also all the burdensome incidents -already enumerated, was expected to come to the aid of his lord in any -special crisis or emergency. The help thus rendered was by no means -reckoned as a payment to account of the other obligations, which had -also to be paid in full. The additional sums thus given were technically -known as “aids.” At first, the occasions on which these might be -demanded were varied and undefined. Gradually, however, they were -limited to three. Glanvill,[110] indeed, mentions only two, namely, the -knighting of the overlord’s eldest son, and the marriage of his eldest -daughter; but he intends these, perhaps, merely as illustrations rather -than as forming an exhaustive list. Before the beginning of the -thirteenth century the recognized aids were clearly three—the ransoming -of the king and the two already mentioned. This understanding was -embodied in Magna Carta.[111] - ------ - -Footnote 110: - - IX. c. 8. - -Footnote 111: - - See _infra_, under chapter 12. - ------ - -A tradition has been handed down from an early date, that these aids -were in reality voluntary offerings made by the tenant as a mark of -affection, and forming no part of his legal obligations.[112] - ------ - -Footnote 112: - - Thus, the Abingdon version of the _Anglo-Saxon Chronicle_ (II. 113) - speaks of “auxilium quod barones michi dederunt”; while Bracton says - (Book II. c. 16, s. 8): “Auxilia fiunt de gratia et non de jure; cum - dependeant ex gratia tenentium, et non ad voluntatem dominorum.” - -This plainly became, however, a legal fiction, as regarded the aids -acknowledged by customary law; the tenant dared not refuse to pay the -recognized three. As regarded any further payments, it was by no means a -fiction. When the Crown desired to exact contributions for any other -reason, it required to obtain the consent of the _commune concilium_. -This, for example, was done by Henry III. before taking an aid on the -marriage of his eldest sister. The importance of the necessity for such -consent can hardly be exaggerated in its bearing on the origin of the -rights of Parliament. - -The Great Charter, while confirming the tacit compromise arrived at by -custom, whereby only the three aids might be taken without consent of -the baronage, left the _amount_ of such aids undefined, contenting -itself with the extremely vague provision that they should be -“reasonable.” Examples of such payments, both before and after the -Charter, are readily found in the Exchequer Rolls. Thus, in the -fourteenth year of Henry II., that king took one mark per knight’s fee -on marrying his daughter Maud to the Duke of Saxony. Henry III. took -20s. and Edward I. 40s. for a similar purpose. For Richard’s ransom, -20s. had been exacted from each knight’s fee (save those owned by men -actually serving in the field); and Henry III. took 40s. in his -thirty-eighth year at the knighting of his son. Probably there existed, -at an early date, some understanding as to the limits within which -“reasonableness” should be reckoned, but the amount was never stated in -black and white before the third year of Edward I. The Statute of -Westminster I.[113] fixed the “reasonable” aid payable, not to the Crown -but, to mesne lords at 20s. per knight’s fee, and 20s. for every estate -in socage of £20 annual value. This rate, it will be observed, is -one-fifth of the knight’s relief.[114] The Crown, in thus enforcing -“reason” on mesne lords, seems never to have intended that the same -limit should hamper its own dealings with Crown tenants, but continued -to exact larger sums whenever it thought fit.[115] - ------ - -Footnote 113: - - 3 Edward I. c. 36. - -Footnote 114: - - Fixed at 100s. by c. 2 of Magna Carta. - -Footnote 115: - - One entry in the _Memoranda Roll_ of 42 Henry III. (cited Madox I. - 615) seems at first sight to contradict this. It seems in that year to - be admitted that the Crown could not exact more than 20s. of aid per - knight’s fee; but in 1258 the baronial opposition would be strong in - the Exchequer as elsewhere. - ------ - -Thus £2 per fee was taken in 1346 at the knighting of the Black Prince. -A Statute of Edward III.[116] at last extended to the Crown the same -measure of “reasonableness” as had been applied three-quarters of a -century earlier to mesne lords. The last instances of the exaction of -aids in England occur as late as the reign of James I., who, in 1609, -demanded one for the knighting of the ill-fated Prince Henry, and in -1613 another for the marriage of his daughter Elizabeth to the Prince of -Orange. - ------ - -Footnote 116: - - 25 Ed. III. stat. 5, c. 11. - ------ - -III. _Suit and Service._ This phrase expresses the essential obligations -inherent in the very nature of the feudal relation. It may be expanded -(as regards tenure in chivalry) into the duty of attendance at the -lord’s court, whether it met for administrative or judicial purposes, or -for reasons of mere display, and the further duty of military service -under that lord’s banner in the field. Suit, or attendance at court, had -ceased to be an urgent question before the reign of John. Indeed, the -barons, far from objecting to be present there, were gradually -approaching the modern conception, which regards it as a privilege -rather than a burden to attend the _commune concilium_—the embryo -Parliament—of the King. They urged, in especial, that only in a full -feudal court, at which each great Crown tenant had a right to appear, -could any one of their number be judged in a plea involving loss of -lands or of personal status.[117] - ------ - -Footnote 117: - - See _infra_, under chapter 39. - ------ - -It was far otherwise with the duties of military service, which were -rendered every year more unwillingly, partly because of the increased -frequency of warlike expeditions, partly because of the greater cost of -campaigning in distant lands like Poitou, partly because the English -barons were completely out of sympathy with John’s foreign policy and -with him. We have seen that the want of definition and looseness of -practice in the reign of William the Conqueror left to future ages a -legacy fertile in disputes. William I. and his barons lived in the -present; and the present did not urgently call for definition. -Therefore, the exact duration of the military service to be rendered, -and the exact conditions (if any) on which exemption could be claimed, -were left originally quite vague. Such carelessness is easily explained. -Both Crown and barons hoped that by leaving matters undefined, they -would be able to alter them to their own advantage. This policy was sure -to lead to bitter quarrels in the future, but circumstances delayed -their outbreak. The magnates at first readily followed William to the -field wherever he went, since their interests were identical with his, -while warfare was their normal occupation. - -The exact amount of military service was gradually fixed by custom, and -both sides acquiesced in reckoning the return due (_servitium debitum_) -for each knight’s fee or _scutum_ as the service of one fully armed -horseman during forty days. There were still, however, innumerable minor -points on which disputes might arise, and these remained even in 1215. -Indeed, although several chapters of the Great Charter attempted to -settle certain of these disputed points, others were left as bones of -contention to subsequent reigns: for example, the exact equipment of a -knight; the liability to serve for more than forty days on receiving pay -for the extra time; what extent of exemption (if any) might be claimed -by churchmen holding baronies on the ground that they could not fight in -person; how far a tenant might compromise for actual service by -tendering money; whether attendance and money might not both be refused, -if the King did not lead his forces in person; and whether service was -equally due from all estates for foreign wars as for home ones.[118] - ------ - -Footnote 118: - - Some of these questions might be answered in particular cases by the - terms of special charters. Thus the _Hundred Rolls_ (1279) relate how - Hugh de Plesens held the Manor of Hedington, and was liable for one - knight’s fee when scutage ran; that he must go with the King and serve - him for forty days at his own expense, and thereafter at the expense - of the King. _Rot. Hund._, II. p. 710; cf. for _France, Etablissements - de St. Louis_, I. c. 65. - -Such difficulties were increased, as time went on, rather than removed. -The Conqueror’s followers had possessed, like their lord, estates on -both sides of the Channel: his wars were theirs. Before John’s reign, -these simple relations had become complicated by two considerations. By -forfeitures and the division of inheritances between sons of one father, -holders of English fiefs and holders of Norman fiefs had become -distinct; the English barons had in 1213 nothing at stake in the Crown’s -selfish schemes of aggrandisement or defence. The England of John -Lackland, like the England of William of Orange, objected to be -entangled in foreign wars in the interests of foreign possessions of the -King. On the other hand, the gradual expansion of the dominions of the -wearers of the English Crown increased the number of their wars with the -number of their interests, and increased, too, the trouble and expense -of each expedition. The small wars with Wales and Scotland formed a -sufficient drain on the resources of English magnates without their -being summoned in intermediate years to fight in Maine or Gascony. The -greater number of campaigns might well be reckoned a breach of the -spirit of the original agreement. - -Were the barons bound to follow John in a forlorn attempt, of which they -disapproved, to recover his lost fiefs from the French Crown? Or were -they bound to support him only in his legitimate schemes as King of -England? Or were they, by way of compromise, liable for services in the -identical possessions held by William the Conqueror at the date when -their ancestors first got their fiefs—that is, for wars in England and -Normandy alone? Tenderness for legal subtleties or strict logic could -hardly be expected from the malcontents of the northern counties, -smarting under a dumb sense of wrong. Despising all nice definition, -they declared roundly in 1213 that they owed no service whatsoever out -of England.[119] This extreme claim put them clearly in the wrong, since -John had many precedents to the contrary ready to lay before them. When -the King, on his return from his unfortunate expedition in 1214, -demanded a scutage from all who had not followed him to Poitou, the -malcontents declared that they had no obligation either to follow him -out of the kingdom, or to pay a scutage in lieu thereof.[120] Pope -Innocent was probably correct in condemning this contention as founded -neither on English law nor on feudal custom.[121] There is some ground -for believing that a compromise was mooted on the basis that the barons -should agree to serve in Normandy and Brittany, as well as in England, -on being exempted from fighting elsewhere abroad.[122] - ------ - -Footnote 119: - - See R. Coggeshall, p. 167; the barons argued _non in hoc ei obnoxios - esse secundum munia terrarum suarum_. - -Footnote 120: - - W. Coventry, II. 217. - -Footnote 121: - - See his letter dated 1st April, 1215, in _New Rymer_, I. 128, ordering - the barons to pay the scutage of Poitou. - -Footnote 122: - - The evidence for this is chiefly inferential, but would be greatly - strengthened if we could establish the genuineness of the charter - discussed by Mr. J. H. Round, Mr. Prothero, and Mr. Hubert Hall in - _Eng. Hist. Rev._, VIII. 288, and IX. 117 and 326. See the document in - Appendix. - ------ - -A definite understanding on this vital question was never arrived at—not -even on paper, since chapter 16 of Magna Carta contented itself with the -bald provision that existing services were not to be increased (without -defining what these were). This was merely to shelve the difficulty: the -dispute went on under varying forms and led to a violent clashing of -wills in the unseemly wrangle between Edward I. and his Constable and -Marshal, dramatized in a classic passage by Walter of Hemingburgh.[123] -Strangely enough, the _Confirmatio Cartarum_ of 1297, which was, in -part, the outcome of this later quarrel, omits (like Magna Carta -itself)[124] all reference to foreign service. The total omission from -both charters of all mention of the chief cause of dispute is -noteworthy. It must be remembered, however, that the question of -liability to serve abroad had practically resolved itself into that of -liability to scutage, and that chapters 12 and 14 of the Charter of 1215 -provided an adequate check on the levy of all scutages; but this is a -subject of crucial importance, which requires separate and detailed -treatment. - ------ - -Footnote 123: - - _Chronicon_, II. 121. - -Footnote 124: - - See, however, _infra_ under c. 16. - ------ - -IV. _Scutage._ The Crown did not always insist on actual personal -service, but was frequently willing to accept a commutation in the form -of a money payment. This subject of scutage is one of the most vexed of -questions; all received opinions of yesterday having to-day been thrown -into the melting pot. Serious attempts constructively to restate the -whole subject have hardly been made; and no conclusions have yet -received general acceptance. - -Three modifications, however, of the theories of Stubbs and Freeman, -once universally accepted, seem likely to be soon established: (1) that -“scutage” is an ambiguous term with a vague general meaning as well as a -narrow technical meaning; (2) that the importance of the changes -introduced by Henry II. in 1156 and 1159 has been much exaggerated; and -(3) that at a later time, probably during John’s reign, scutage changed -its character. It ceased to be normally a commutation of service, since -it was not infrequently exacted by the Crown in _addition_ to military -service actually performed. Each of these propositions requires -explanation. - -“Scutagium,” or “shield-money,” often means, it is true, a specific sum -of so much per knight’s fee (normally twenty shillings) accepted by the -King in lieu of the personal service in his army due by his tenants _in -capite_. Thus it is, as Dr. Stubbs explains, “an honourable commutation -for personal service”;[125] but it is also loosely used[126] to denote -any exaction whatsoever assessed on a feudal basis (that is, taken -exclusively from holders of fiefs) irrespective of the occasion of its -levy. Thus, money taken in name of one of the three feudal _aids_ is -sometimes described as a scutage; and other instances might be cited. - ------ - -Footnote 125: - - Stubbs, _Const. Hist._, I. 632. - -Footnote 126: - - As was long ago pointed out by Madox, I. 619. - ------ - -Again, learned opinion tends towards the belief that Henry II. made no -radical or startling alteration. Professor Freeman, Dr. Stubbs, and -their adherents familiarized a bygone generation of historians with the -view that one of Henry’s most important reforms was to allow his Crown -tenants at their discretion to substitute payments in money for the old -obligation of personal service in the field—this option being granted to -ecclesiastics in 1156, and to lay barons in 1159. Such a theory had _a -priori_ much to recommend it. A measure of this nature, while giving -volume and elasticity to the resources of the Crown, was calculated -subtly to undermine the basis of the feudal tie; but Henry, farseeing -statesman as he was, could not discard the ideals of his own generation. -No evidence that he made any sweeping change is forthcoming. His -grandfather, Henry I., is shown by the evidence of extant charters to -have accepted money in place of the services of knights _when it suited -him_ (notably from church fiefs in 1109),[127] and there is no evidence -(direct or indirect) to show that the grandson accepted such commutation -_when it did not suit him_. The conclusions formulated, with his usual -energy, by Mr. J. Horace Round, lie implicitly in the examples from the -_Pipe Rolls_ stored in the great work of Madox. From these it would -appear that the procedure of the Exchequer of the great Angevin and his -two sons might be explained in some such propositions as these: - ------ - -Footnote 127: - - See Round, _Feudal England_, p. 268. - ------ - -(_a_) The option to convert service into scutage lay with the Crown, and -not with the tenants, either individually or as a body. When the King -summoned his feudal army no baron could (as Professor Freeman would have -us believe) simply stay away under obligation of paying a small fixed -sum to the Exchequer. On the contrary, Henry and his sons jealously -preserved the right to insist on _personal_ service whenever it suited -them; even efficient substitutes were not always accepted, much less -money payments. - -(_b_) If the individual wished to stay at home he required to make a -special bargain to pay such fine as the King agreed to accept—and -sometimes he had to send a substitute in addition. The _Pipe Rolls_ show -many such payments by stay-at-homes _ne transfretent_ or _pro remanendo -ab exercitu_. Thus, in the twelfth year of John’s reign a Crown tenant -paid a fine “that he might send two knights to serve for him in the army -of Ireland.”[128] - ------ - -Footnote 128: - - Madox, I. 658. - ------ - -Sometimes, indeed, Henry II. might announce that payments at a certain -rate would be accepted generally in lieu of service, but this was when -it suited him, not when it suited his military tenants. In this -connection twenty shillings per fee became recognized as a usual, though -by no means a necessary, rate. - -(_c_) In the ordinary case, if the tenant in chivalry neither went in -person nor obtained leave from the Crown to stay away, he was in evil -plight. Defaulters were “_in mercy_”; they sometimes forfeited their -entire estates to the Crown,[129] and might be glad to accept such terms -of pardon as a gracious King condescended to hold out to them. -Sometimes, it is true, quite small amercements were inflicted; the Abbot -of Pershore in 1196 escaped with an amercement of 40s.[130] Such -leniency, however, was exceptional, and the result of special royal -clemency. - ------ - -Footnote 129: - - See _Pipe Roll_ of 12 John, cited in Madox, I. 663. - ------ - -Footnote 130: - - See _Pipe Roll_ of Richard I., cited _ibid._ - ------ - -The right to determine the amount of amercements to be taken lay within -the province of the Barons of the Exchequer, who also judged whether or -not lands had escheated by default. - -Henry II. seems to have levied money in name of scutage only when -actually at war—on seven occasions in all during a reign of thirty-five -years; and only once at a rate exceeding 20s., if we may trust Mr. -Round,[131] and that when he was putting forth a special effort against -Toulouse. Richard I., with all his rapaciousness, levied, apparently, -only four scutages during ten years, and the rate of 20s. was never -exceeded even in the King’s hour of urgent need,—in 1194, when the -arrears of his ransom had to be paid and preparations simultaneously -made for war in Normandy. - ------ - -Footnote 131: - - _Feudal England_, 277 _seq._ - ------ - -At John’s accession, then, three rules might be regarded as having all -the prescriptive force of a long unbroken tradition, namely, (1) that -scutage was a reserve for extraordinary emergencies, not a normal yearly -burden; (2) that the recognized maximum was 20s. per knight’s fee, while -a lower rate (13s.4d. and even 10s.) had occasionally been accepted; and -(3) that the payment of scutage to the King at a rate previously fixed -by him acted as a complete discharge of all obligations due for that -occasion. - -If it can be proved that John, almost from his accession, deliberately -altered all three of these well-established rules, and that too in the -teeth of the keen opposition of a high-spirited baronage whose members -felt that their pride and prestige as well as their money-bags were -attacked, a distinct step is taken towards understanding the crisis of -1215. Such knowledge would explain why a storm, long brewing, burst in -John’s reign, neither sooner nor later; and even why some of the -disreputable stories told by the chroniclers and accepted by Blackstone -and others, found inventors and willing believers. - -It is here maintained that John did make changes in all three -directions; and, further, that the incidence of this increase in -feudal burdens was rendered even more unendurable by two -considerations:—because at his accession there remained unpaid -(particularly from the fiefs of the northern knights) large arrears of -the scutages imposed in his brother’s reign,[132] and because in June, -1212, John drew the feudal chain tight by a drastic and galling -measure. In that month he instituted a strict inquest into the amount -of feudal service exigible from every estate in England, to prevent -any dues escaping his wide net, and to revive all services and -payments that had lapsed or were in danger of lapsing. - ------ - -Footnote 132: - - Miss Norgate, _John Lackland_, p. 122. - ------ - -That he made the first two changes becomes a certainty from a glance at -the table of scutages actually extorted during his reign, as these are -here copied from a list compiled by a writer of authority who has no -special theory to support,[133] viz.: - - First scutage of reign— 1198-9— 2 marks per knight’s fee. - Second " " 1200-1 2 " " - Third " " 1201-2 2 " " - Fourth " " 1202-3 2 " " - Fifth " " 1203-4 2 " " - Sixth " " 1204-5 2 " " - Seventh " " 1205-6 20s. " - Eighth " " 1209-10 2 marks " - Ninth " " 1210-11 2 " " - Tenth " " 1210-11 20s. " - Eleventh " " 1213-14 3 marks " - ------ - -Footnote 133: - - Miss Norgate, _John Lackland_, p. 123 note, correcting Swereford’s - lists in the _Red Book of Exchequer_. - ------ - -It will be seen that, in the very first year of his reign, John took a -scutage, and that, too, at a rate above the established normal, at two -marks per _scutum_ (only once equalled, thirty years before, and then -under special circumstances). Even one such exaction must have made the -already sulky Crown tenants look askance. - -Next year John wisely allowed them breathing space; then without a break -in each of the third, fourth, fifth, sixth and seventh years of his -reign, scutages were extorted in quick succession at the high rate of -two marks. If John meant to establish this as a new normal rate, he did -so not without some show of reason, since that would exactly pay the -wages of a knight at 8d. _per diem_ (the rate then current), for a -period of forty days (the exact term recognized by public opinion as the -maximum of compulsory feudal service). - -_Fines_, in addition to this scutage of two marks, were apparently -exacted from those who had not made the necessary compromise for -personal service in due time.[134] - ------ - -Footnote 134: - - See (for year 1201) Ramsay, _Angevin Empire_, p. 390, and authorities - there cited. - ------ - -These scutages were collected with increasing difficulty, and arrears -gradually accumulated; but the spirit of opposition increased even more -rapidly. In 1206, apparently, the breaking point was almost -reached.[135] Accordingly, in that year, some slight relaxation was -allowed—the annual scutage was reduced from two marks to 20s. John’s -needs, however, were as great as ever, and would prevent all further -concessions in future years, unless something untoward happened. -Something untoward _did_ happen in the summer of 1207, when John -quarrelled with the Pope. This event came in time, not as John thought -to _prevent_, but, as the sequel proved, merely to _postpone_, the -crisis of the quarrel with the baronage. John had, for the time being, -the whole of the confiscated property of the clergy in his clutches. The -day of reckoning for this luxury was still far distant, and the King -could meanwhile enjoy a full exchequer without goading his Crown tenants -to rebellion. For three years no scutage was imposed. In 1209, however, -financial needs again closed in on John, and a new scutage of two marks -was levied; followed in the next year actually by two scutages, the -first of two marks against Wales, and the second of 20s. against -Scotland. John never knew when to stop. These three levies, amounting to -a total of five-and-a-half marks per fee within two years, strained the -tension almost to breaking point. - ------ - -Footnote 135: - - Cf. Miss Norgate, _John Lackland_, p. 125. - ------ - -During the two financial years immediately following (Michaelmas, 1211, -to Michaelmas, 1213) no scutage was imposed. John, however, although he -thus a second time relaxed the tension, had no intention to do so for -long. On the contrary, he determined to ascertain if scutages could not -be made to yield more in the future. By writs, dated 1st June, 1212, he -instituted a great Inquest throughout the land. Commissioners were -appointed to take sworn verdicts of local juries as to the amount of -liability due by each Crown vassal. Mr. Round[136] considers that -previous writers have unaccountably ignored the importance of this -measure, “an Inquest worthy to be named in future by historians in -conjunction with those of 1086 and 1166,”[137] and describes it as an -effort “to revive rights of the Crown alleged to have lapsed.” It is -possible that John, by this Inquest of 1212, sought also -(unsuccessfully, as the sequel proved) to do what Henry had done -successfully in 1166—that is, to increase the amount of knights’ fees on -which each Crown tenant’s scutage was assessed by adding to the previous -total the number of knights recently enfeoffed. - ------ - -Footnote 136: - - _Commune of London_, pp. 273-4. - -Footnote 137: - - Two historians, however, who have recently given valuable and - independent accounts of the reign of John, say little of its value. - Sir James Ramsay (_Angevin Empire_, p. 432) treats it briefly, and - Miss Norgate (_John Lackland_, p. 163) barely notices it. - ------ - -John clearly intended by this Inquest, the returns to which were due on -the 25th June, 1212, to prepare the necessary machinery for wringing the -uttermost penny out of the next scutage when occasion for one again -arose. That occasion came in 1214. - -Up to this date, even John had not dared to exact a rate of more than -two marks per knight’s fee; but the weight of his constant scutages had -been increased by the fact that he sometimes exacted personal services -in addition, and that he inflicted crushing fines upon those who neither -went nor arranged beforehand terms of composition with the King.[138] - ------ - -Footnote 138: - - Miss Norgate (_John Lackland_, p. 123) describes the exactions - supplementing the scutages: "These scutages were independent of the - fines paid by the barons who did not accompany the King on his first - return to Normandy in 1199, of the money taken from the host as a - substitute for its service in 1201, of the equipment and payment of - the ‘decimated’ knights in 1205, and the fines claimed from all the - tenants-in-chivalry after the dismissal of the host in the same year, - as well as of actual services which many of those who had paid the - scutage rendered in the campaigns of 1202-4 and 1206." - -Thus gradually and insidiously throughout the entire reign of John, the -stream of feudal obligations by many different channels steadily rose -until the barons feared that nothing of their property would be saved -from the torrent. The normal rate of scutage had been raised, the -frequency of its imposition had been increased, the conditions of -foreign service had become more burdensome, and the objects of foreign -expeditions more unpopular; while attempts were sometimes made to exact -both service and scutage in the same year. The limit of the barons’ -endurance was reached when, on 26th May, 1214, John, already discredited -by his unsuccessful expeditions in Poitou, soon to be followed by the -utter overthrow of his allies at Bouvines, issued writs for a scutage at -the unheard-of rate of three marks, grounded doubtless on the inquest of -1212 and unusually far-reaching in the subjects which it embraced.[139] - ------ - -Footnote 139: - - See Miss Norgate, _John Lackland_, 210, and cf. _supra_, p. 37. - ------ - -Then the final crash came; this writ was like a call to arms—a call not -to follow the King’s banner, but to fight against him. - - III. Royal Justice and Feudal Justice. - -A well-known aphorism of legal text-books, couched in language unusually -figurative, declares the King to be “the sole fountain of justice.” -Correct as it is to apply this metaphor to the present state of the -constitution, it would be an anachronism and a blunder to transport it -into the thirteenth century. In John’s reign there still were—as there -had been for centuries—not one, but many competing jurisdictions. It was -by no means a foregone conclusion that the King’s Courts were the proper -tribunals to which a wronged individual must repair to seek redress. On -the contrary, the great bulk of the rural population, the villeins, had -no _locus standi_ except in the court of the manor to which they -belonged; while the doors of the royal Courts had been closed against -the ordinary freeman previous to the reign of Henry II. Royal justice -was still the exception, not the rule. Each man must seek redress, in -the ordinary case, in his own locality. To dispense justice to the -nation at large was no part of the normal business of a medieval King. - -I. _Rival Systems of Law Courts._ In the thirteenth century, there -existed not one source of justice, but many. Rival courts, eagerly -competing to extend their own sphere of usefulness and to increase their -own fees, existed in a bewildering multitude. Putting aside for the -moment the Courts Christian, the Borough Courts, the Forest Courts, and -all exceptional or peculiar tribunals, there existed three great rival -systems of jurisdiction which may be named in the order in which they -became in turn prominent in England. - - (1) _Local or District Courts._ Justice was originally a local -product, and administered in rude tribunals, which partook more or less -of a popular character. Each shire had its council or assembly for -hearing pleas, known as a “shire-moot” in Anglo-Saxon days, and usually -as a “_comitatus_” after the Norman Conquest; while each of the smaller -districts subdividing the shire, and forming units of administration for -purposes of taxation, defence, justice, and police, had a moot or -council of its own, serving as a court of law, to which the inhabitants -of the various villages brought their pleas in the first instance. These -smaller districts were known as hundreds in the south, and as wapentakes -(a name of Danish derivation) in the north. - -The theory generally received is that all freemen were originally -suitors in the courts of the shire and the hundred, and that the whole -body of those present, the ordinary peasant (“ceorl”) equally with the -man of noble blood (“eorl”), took an active part in the proceedings, -pronouncing (or, at least, concurring in) the judgments or dooms there -declared; but that, as time progressed, the majority of the Anglo-Saxon -ceorls sank to the half-servile position of villeins—men tied for life -to the soil of the manor, and passing, like property, from father to -son. These villeins, although still subjected to the burden of -attendance, and to some of the other duties of their former free estate, -were deprived of all those rights which had once formed the counterpart -of the obligations. Another school of historians, it is true, denies -that the mass of the population, even in very early times, ever enjoyed -the right to any active share in the dispensation of justice. It is -unnecessary here to attempt a solution of these and many other intricate -problems surrounding the composition and functions of the courts of -shire and hundred; or to discuss the still more vexed question how far -the small assembly of the villagers of each township is worthy to be -reckoned a formal court of law. It is sufficient to emphasize the -importance of the existence from early times of a complete network of -courts, each dispensing justice for the people of its own district. - -(2) _Feudal Courts._ Centuries before the Norman Conquest, this system -of popular or district justice found itself confronted with a rival -scheme of jurisdictions—the innumerable private courts belonging to the -feudal lords of the various estates into which the whole of England had -been divided. This new system of private tribunals (known indifferently -as feudal courts, manorial courts, seignorial courts, or heritable -jurisdictions) slowly but surely, such is the orthodox view generally, -although not universally accepted, gained on the older system of popular -courts of shire, hundred, and wapentake.[140] - ------ - -Footnote 140: - - This account of the relations of the two sets of courts would receive - the support of recent writers, such as Maitland and Round, as well as - of the older generation, such as Stubbs and Freeman. Mr. Frederic - Seebohm may be mentioned as perhaps the most weighty upholder of the - opposite view, which regards the manorial courts as of equally early - or earlier origin than those of hundred and shire. - ------ - -Practically every holder of land in England came to be also the holder -of a court for the inhabitants of that land. The double meaning of the -word “_dominus_” illustrates the double position of the man who was thus -both owner and lord.[141] In the struggle between two schemes of -justice, the tribunals of the feudal magnates easily triumphed, but -never absolutely abolished their rivals. The earlier popular courts -still lived on; but the system of district justice which had once -embraced the whole of England was completely honeycombed by the growth -of the feudal courts. As each once-free village passed under the -domination of a lord, and gradually became a manor or embryo-manor, the -village-moot (with such rudimentary authority as it may originally have -possessed) gave way before a new manorial court endowed with much wider -powers and with more effective sanction for enforcing them. Further, as -complete hundreds fell under the control of specially powerful magnates, -the entire courts of these hundreds were replaced by or transformed into -feudal courts; franchises thus took the place of many of the old popular -moots. Still, the older system retained possession of part of the -disputed ground, thanks to the protection given it in its hour of need -by the Crown. A great majority of the hundreds never bowed to the -exclusive domination of any one lord, and the courts of the shires were -jealously guarded by the Norman Kings against the encroachment of even -the most powerful of barons. It is true that they only escaped -subjection to a local landowner in order to fall under the more powerful -domination of the Crown. Yet the mere fact that they continued in -existence acted at least as a check on the growth of the rival system of -seignorial tribunals. - ------ - -Footnote 141: - - Cf. “landlord.” - ------ - -Although it was the policy of the Norman Kings to prevent their barons -from gaining excessive powers of jurisdiction, it was by no means their -policy to oppose these jurisdictions altogether. On the contrary, the -Conqueror and his sons were glad that order should be enforced and -justice administered, even in a rough-and-ready manner, in those -districts of England whither the Crown’s arm was not long enough to -reach, and where the popular courts were likely to prove inefficient. -Thus, the old system and the new existed side by side; it was to the -interest of the central government to play off the one against the -other. - -In later days (but not till long after Magna Carta) each manorial -tribunal split into three distinct courts, according to the class of -pleas it was called upon to try. Later writers distinguish absolutely -from each other, the Court Baron, settling civil disputes between the -freeholders of the manor; the Court Customary, deciding non-criminal -cases among the villeins; and the Court Leet, a petty criminal court -enforcing order and punishing small offences. The powers of these courts -might vary, and in many districts the jurisdiction over misdemeanours -belonged not to the steward of the lord of the manor, but to the sheriff -in his half-yearly Circuits or “Tourns” through the county. In the -imperfectly feudalized districts the Tourn of the sheriff, as the -representative of the Crown, performed the same functions as the Court -Leet performed within the territories of a franchise. - -(3) _Royal Courts._ Originally, the King’s Court had been merely one -feudal court among other feudal courts—differing in degree rather than -in kind from those of the great earls or barons. The King, as a feudal -lord, dispensed justice among his feudal tenants (whether barons and -freemen or only servile dependents), just as any baron or freeman -dispensed justice among _his_ tenants, bond or free. No one dreamed, in -the time of the Norman Kings, that the _Curia Regis_ would or could -undertake the enormous labour of dispensing justice for the whole nation -(or even of supervising the courts which did dispense it). Each -individual must, on the contrary, look for the redress of wrongs either -to the court of the people of his own district, or to the court of his -lord. Royal justice for all (in the modern sense) was simply impossible. -The monarchy had no machinery at command for effecting this. The task -was a gigantic one, which no Anglo-Saxon King, which not even William -I., could possibly have undertaken. No attempt in this direction was -made by the Crown until the reign of Henry II., who was placed in a -position of unprecedented power, partly by circumstances, but chiefly by -his great abilities. Even he, born reformer as he was, would never have -increased so greatly the labours of government, if he had not clearly -seen how enormously the change would enhance both the security of his -throne and the revenue of his exchequer. - -In normal circumstances, then, prior to the Angevin period, the King’s -Court was merely a tribunal for transacting the king’s own business, or -for holding pleas between the Crown’s own immediate tenants. Even from -an early date, however, the business of the monarch, from the mere fact -that he was lord paramount, was necessarily wider than the business of -any mesne lord. In a dim way, too, it must have been apparent from the -first, that offences against the established order were offences also -against the king, and that, therefore, to redress these was the king’s -business competent in the King’s Courts. Further, the Sovereign’s -prerogative quickly waxed strong, and enabled him to give effect to his -wishes in this as in other matters. The Crown asserted a right (while -admitting no corresponding duty) to investigate any pleas of special -importance, whether civil or criminal. Still, up to the Norman Conquest, -and thereafter under William and his sons, royal justice had made no -deliberate attempt to become national justice, or to supersede feudal -justice. Each kept to its recognized province. The struggle between the -two began only with the reforms of Henry II.[142] - ------ - -Footnote 142: - - The various stages in the gradual process, extending from the reign of - Henry I. to that of Edward I., by which royal justice insidiously - encroached on feudal justice, may be studied in Professor Maitland’s - admirably lucid account prefaced to _Sel. Pleas in Manorial Courts_, - pp. liii. seq. See also Pollock and Maitland, I. 181-2. - ------ - -Thus the three great systems of jurisdiction, popular justice, feudal -justice, and royal justice (each depending on a different principle) -succeeded each other, on the whole, in the order in which they are here -named. Yet the sequence is in some ways logical rather than -chronological. No absolute line can be drawn, showing where the -supremacy of one principle ended and that of the next began. For -centuries, all three co-existed, and struggled for the mastery. The -germs of manorial jurisdiction may have been present from an early date. -Shire-courts and hundred courts alike were continually in danger of -falling under the domination of powerful local magnates. Yet the -shire-courts were successful in maintaining till the last (thanks to -royal favour) their independence of the manorial jurisdictions and their -lords; while only a proportion of the hundred courts fell into bondage. - -The royal courts, again, exercised an important jurisdiction from the -very foundation of the monarchy; and the king in person, or by deputy, -from an early date, withdrew special causes from the County Courts, and -also interfered with manorial franchises. Finally, the Courts Baron were -never abolished, but only silently undermined by the policy of Henry II. -and his successors, until they gradually sank into decrepitude without -really ceasing to exist. - -With these caveats, however, the three systems may be regarded, in some -measure, as following one another in the order named:—popular justice, -feudal justice, royal justice. - -II. _Legal Procedure._ The procedure adopted in litigation in -Anglo-Saxon and Norman times was similar in essentials in all three -classes of tribunals, and differed materially from the practice of -courts of law at the present day. Some knowledge of the more glaring -contrasts between ancient and modern procedure may here be profitably -discussed, not only on account of the interest inherent in the subject, -but also because it will conduce to an understanding of several -otherwise obscure provisions of Magna Carta. - -Avoiding technical language, and eliminating special procedure peculiar -to any one court or country, the principal stages in a normal litigation -in a modern court of law may be given briefly as follows: - -(1) On the complaint of the party aggrieved—the plaintiff—a summons, or -writ, is issued by an officer of the court. Proceedings are opened by -the command addressed to the defendant to appear in court and answer -what is alleged against him. - -(2) Each party lodges written statements of his facts and pleas—that is, -of the circumstances of the case as they appear to him (or such of them -as he hopes to bring evidence to prove)—on which he founds his claim or -his defence, and of the legal principles he intends to deduce from these -circumstances. When these statements of facts and pleas have been -revised and adjusted, the complete data are now before the court; each -party has finally stated what he considers essential to his case. - -(3) Proof is, in due course, led; that is, each party is afforded an -opportunity of proving such facts as he has alleged (and as require -proof through the denial of his opponent). This he may do by documents, -witnesses, or otherwise. Each party has the further privilege of shaking -his opponent’s evidence by cross-examination. - -(4) The next important stage is the debate, the main object of which is -to establish by legal arguments the pleas founded on; to deduce the -legal consequences inherent in the facts which have been proved. - -(5) Finally, the judge gives his decision. He has to determine, after -weighing the evidence led by either party, what facts have really been -established, and how far the various pleas of plaintiff and defendant -respectively are implied in these facts. A considerable amount of -thought and reasoning of such a kind as can be successfully performed -only by a highly trained legal mind is thus necessary before the final -decree or sentence can be pronounced by a judge in a modern court of -law. - -A trial in Anglo-Saxon and early Norman times stands in notable contrast -to all this in almost every essential of its stages and procedure, and -even more radically in the spirit which pervades the whole. Thus, the -proceedings, from first to last, were purely oral, there being no -original writ or summons, no written pleadings, and no record kept of -the decision except in the memories of those present. The functions of -“the judges” were entirely different, and demanded no previous -professional or legal training, since they were not required either to -weigh a mass of evidence or to determine the bearing of subtle legal -arguments, but merely to see fairplay, and to decide, according to -simple rules, well established by centuries of custom, by what test the -allegations of plaintiff and defendant were respectively to stand or -fall. Finally, the arrangement of the stages of the litigation was -entirely different. It is with something of a shock that the modern -lawyer learns that in civil and criminal causes alike “judgment” -invariably preceded “trial.” Reflection will soon convince him that each -of these words had in the Middle Ages a meaning different from what it -bears to-day. These ancient meanings can be best understood by following -the stages of the old procedure. - -(1) The initial difficulty was to obtain the presence of the defendant -in court, since there existed a strange reluctance either to compel his -attendance or to allow judgment to pass against him by default. No -initial writ was issued commanding him to appear; almost endless delays -were allowed. - -(2) When both parties had been, after many adjournments, actually -brought face to face before the court, the statements alike of the claim -and of the defence were made verbally and in set _formulae_, the -slightest slip or stumble in the words of which involved complete -failure. This is merely one illustration of the tremendously formal and -technical nature of early legal procedure common to all half-developed -systems of jurisprudence. - -(3) Before the plaintiff could put the defendant finally on his defence, -he required to show some preliminary presumption of the probability or -_bona fides_ of his case. This he usually did by producing two friends -ready to substantiate his claim, known sometimes as his “suit” (Latin -_secta_), or his “fore-witnesses.” Their evidence was not weighed -against the “proof” afterwards led by the defendant; its object was -merely to warrant the Court in demanding “proof” from the latter at -all.[143] - ------ - -Footnote 143: - - Sometimes no fore-witnesses were required; for example, to choose an - obvious case, where the claim was for the restoration of stolen - cattle, which had been traced by “hue and cry” to defendant’s house or - byre. The presumption of guilt was here so strong as to render - corroborative evidence unnecessary. The plaintiff’s unsupported oath - was thus sufficient to put the defendant on his “trial.” On the other - hand, in the absence alike of presumption and of witnesses swearing in - support of plaintiff’s oath, the defendant escaped without any “trial” - at all. - ------ - -(4) Then came the judgment—the chief or “medial” judgment, so called to -distinguish it from the less important final judgment or decree which -came at a later stage. This medial judgment or “doom,” to use the -Anglo-Saxon word, partook in no respect of the nature of the judgment of -a modern tribunal. It came _before_ the proof or trial, not after it. It -consisted indeed in decreeing whether or no, on the strength of the -previous procedure, the defendant should be put to his proof at all; and -if so, _what_ “proof” should be demanded. - -Now, the exact test to be appointed by the court varied somewhat, -according to circumstances, but long-established custom had laid down -with some exactitude a rule applicable to every case likely to occur; -and, further, the possible modes of proof were limited to some four or -five at the outside. In Anglo-Saxon times, these were mainly -compurgation, ordeal, witnesses (whose functions were, however, widely -different from those of witnesses in modern law), and charters. The -Norman Conquest introduced for the new-comers, a form of proof -previously unknown in England—"trial by combat"—which tended, for the -upper classes at least, to supersede all earlier methods of procedure. -The “proof,” of whatever kind it might be, thus appointed by the -“judges” for the defendant’s performance was technically known as a -“law” (Latin _lex_) in the sense of a “test” or “trial” or “task,” -according to his success or failure in which his case should stand or -fall.[144] - ------ - -Footnote 144: - - See _infra_ under chapters 38 and 39, where the meaning of _lex_ is - discussed. - -It will be apparent that to pronounce a “judgment” in this sense was a -simple affair, a mere formality in the ordinary case, where room for -dubiety could hardly be admitted; and thus it was possible for -“judgment” to be delivered by all the members of a feudal court, or even -by all the suitors present at a meeting of the hundred or shire-moot. - -(5) The crucial stage, this “trial” which thus came after “judgment,” -consisted in one party (usually the defendant) essaying, on the day -appointed, to satisfy the court as to the truth of his allegations by -performing the task or “law” which had been set or “doomed” to him. When -this consisted in the production of a charter, or of “transaction -witnesses” (that is, the testimony of those officials appointed in each -market-town to certify the conclusion of such bargains as the sale of -cattle), it commends itself readily to the modern understanding and -approval. More frequently, however, it took the form of “an oath with -oath-helpers,” the plaintiff bringing with him eleven or twelve of his -trusty friends or dependents to swear after him the words of a long and -cumbrous oath, under the risk of being punished as perjurers for any -slip in the formula. This was known also as compurgation. Sometimes the -decision was referred to the intervention of Providence by appealing to -the ordeal of the red-hot iron or the more-dreaded ordeal of water. -After the Norman Conquest, the trial in all litigations between men of -high rank, took the form of _duellum_ or legally regulated combat -between the parties. The defendant gained his case if he caused the -plaintiff to own himself worsted by uttering the word “craven.” He -gained his case equally if he only held out till nightfall (when the -combat terminated) against the plaintiff’s attempts to force him to -utter that fateful word.[145] - ------ - -Footnote 145: - - Details may be studied in Dr. George Neilson’s _Trial by Combat_. - ------ - -The battle was fought out before the “judges,” who, in the case of an -earl or baron, were the other earls and barons assembled as his peers in -the King’s court; and, in the case of the tenant of a mesne lord, were -the other freeholders of the same manor. - -The ancient “trial” (the importance of which is increased by the fact -that it continued long after 1215, and may be traced in several clauses -of Magna Carta)[146] was thus something entirely different from the -modern “trial.” It may be said without exaggeration that there was no -“trial” at all in the current meaning of the word—no balancing of the -testimony of one set of witnesses against another, no open proof and -cross-examination, no debate on the legal principles involved. The -ancient “trial” was merely a formal test, which was, except in the case -of battle, entirely one-sided. The phrase “burden of proof” was -inapplicable. The litigant to whom “a law” was appointed had the -“privilege of proof” rather than the “burden of proof,” and he usually -won his case—especially in compurgation, and even in ordeal if he had -arranged matters properly with the priest who presided.[147] - ------ - -Footnote 146: - - See _infra_, chapters 38 and 39. - -Footnote 147: - - Ordeal and compurgation and other forms of _lex_ are further discussed - _infra_, under chapters 38 and 39. - ------ - -(6) The whole was concluded by the final “judgment,” or decree, which -practically took the form of a sentence passed on the vanquished. The -judges could scarcely be said to decide the case, since this had already -been practically decided by the success or failure of the party on whom -the proof had been laid. Those who gave sentence were “judges” merely in -the sense of umpires who saw fairplay to both players, according to the -acknowledged rules of the desperate game.[148] - ------ - -Footnote 148: - - Cf. Thayer, _Evidence_, p. 8. “The conception of the trial was that of - a proceeding between the parties, carried on publicly, under forms - which the community oversaw.” - ------ - -In one sense, the final (as opposed to the medial) “judgment” was -determined by the parties themselves, or by one of them; in another and -higher sense the facts at issue were left to Providence; a miracle, if -necessary, would attest the just claim of the innocent man. Those who -delivered the final doom, had a purely formal task to perform, and had -little in common with the “judges” of a modern court.[149] - ------ - -Footnote 149: - - These stages of procedure are all fully illustrated by the actual - words of recorded cases of the thirteenth century. Two of these, both - from the reign of John, one decided by battle, the other by ordeal, - may here be cited. (1) "Hereward, the son of William, appeals Walter, - the son of Hugh, of assaulting him, in the King’s peace, and wounding - him in the arm with an iron fork, and giving him another wound on the - head; and this he offers to prove on his body as the Court shall - appoint. And Walter defends all of it by his body. And it is testified - by the coroners and by the whole county that the same Hereward showed - his wounds at the proper time, and has made sufficient suit. Therefore - it is decreed that there should be “battle.”... Let them come armed, a - fortnight from St. Swithin’s day, at Leicester." _Sel. Pleas of Crown_ - (Selden Society), p. 18. (2) “Walter Trenchebof was said to have - handed to Inger of Faldingthorpe the knife with which he killed Guy - Foliot, and is suspected of it. Let him purge himself by water that he - did not consent to it. He has failed and is hanged.” _Ibid._, p. 75. - ------ - -The essentials of this procedure were the same in the Norman as in the -Anglo-Saxon period, and that in all three classes of tribunals—popular -courts, manorial courts, and royal courts. - -Two innovations the Norman Kings did make; they introduced trial by -combat (already sufficiently discussed), and likewise the continental -method of obtaining information on sworn testimony. Among the -prerogatives of the Norman Dukes one of the most valuable was the right -to compel the sworn evidence of reliable men of any district—men -specially picked for the purpose, and put on oath before answering the -questions asked of them, thus endangering their eternal welfare in the -event of falsehood, and laying themselves open to temporal penalties for -perjury. - -This procedure was known as _inquisitio_ (or the seeking of information) -when regarded from the point of view of the government making the -inquiry, and as _recognitio_ (or the giving of information) from the -point of view of those supplying it. This extremely simple and practical -device was flexible and capable of extension to endless new uses in the -deft hands of the Norman Kings in England. William the Conqueror -employed it in collecting the laws and customs of the conquered people, -and, later on, in compiling Domesday Book; while his successors made it -the instrument of various experiments in the science of taxation. It has -a double claim to the interest of the constitutional historian, because -it was one of the influences which helped to mould our Parliamentary -institutions; and because several of the new uses to which it came to be -put had a close connection with the origin of trial by jury. The -recognitors, indeed, were simply local jurors in a rude or elementary -form.[150] - ------ - -Footnote 150: - - The relation of “recognition” to trial by jury is fully discussed, - _infra_, Part III., section 7. - ------ - -III. _Reforms of Henry II. in Law Courts and Legal Procedure._ It was -reserved for Henry of Anjou to inaugurate an entirely new era in the -relations of the three classes of courts. He was the first king -deliberately to plan the overthrow of the feudal jurisdictions by -insidiously undermining them, if not yet by open attack. He was the -first king to reduce the old district courts so thoroughly under the -control of royal officials as to turn them practically into royal -courts. He was the first king also to throw open the doors of his own -courts of law to all-comers, to all freemen, that is to say, for the -despised villein had for centuries still to seek redress in the court of -that very lord of the manor who was too often his oppressor. - -In brief, then, Henry’s policy was twofold: to convert the County Courts -practically into Royal Courts, since in them royal officials now -dispensed royal justice according to the same rules as prevailed at the -King’s own _Curia_; and to reduce all manorial or private courts to -insignificance by diverting pleas to his own _Curia_, and leaving the -rival tribunals to die gradually from inanition. Both branches of this -policy met ultimately with complete success, although the event hung in -the balance until long after his death. The barons, though partially -deceived by the gradual and insidious nature of Henry’s reforms, did -what they could to thwart him; but the current of events was against -them and with the Crown. Royal justice steadily encroached upon feudal -justice. One of the last stands made by the barons has left its traces -plainly written in several chapters of Magna Carta.[151] - ------ - -Footnote 151: - - _E.g._ 34 and 39. - ------ - -These contain what seem, at first sight, to be merely trivial -alterations of technical points of court procedure; but inextricably -bound up with them are principles of wide political and constitutional -importance. Henry’s policy was to disguise radical reforms until they -looked like small changes of procedure; it follows that the framers of -Magna Carta, while appearing merely to seek the reversal of these -trivial points, were really seeking to return to the totally different -conditions which had prevailed prior to the reforms of Henry. - -A short account of the main outlines of that monarch’s new system of -procedure forms a necessary preliminary to a complete comprehension of -these important chapters of Magna Carta. Such an account falls naturally -into two divisions. - -(1) _Criminal Justice._ (_a_) By his Assizes of Clarendon and -Northampton Henry strictly reserved all important crimes for the -exclusive consideration of his own judges either on circuit or at his -court; and he demanded entry for these judges into franchises, however -powerful, for that purpose. In this part of his policy, the King was -completely successful; heinous crimes were, in the beginning of the -thirteenth century, admitted on all hands to be “pleas of the Crown” -(that is, cases exclusively reserved for the royal jurisdiction); and -Magna Carta made no attempt to reverse this part of the Crown’s policy. -The change was accepted as inevitable. All that was attempted in 1215 -was to obtain a promise that these functions, now surrendered to the -Crown forever, should be discharged by the Crown’s officials in a proper -manner.[152] - ------ - -Footnote 152: - - See _infra_, under chapters 24 and 45. - ------ - -(_b_) Henry’s usual good sense, in this matter stimulated by some -notable miscarriages of justice, led him to question the equity of the -procedure usually adopted in criminal pleas, namely, by “appeal” or -formal accusation by the injured party, or his nearest surviving -relative. He substituted, whenever possible, communal accusation for -individual accusation; that is, the duty of proclaiming (or indicting) -the suspected criminals of each district before the King’s Justices was -no longer left to private initiative, but was laid on a body of -neighbours specially selected for that purpose—the predecessors of the -Grand Jury of later days. This new procedure, it is true, supplemented -rather than superseded the older procedure; yet it marked a distinct -advance. Appeals were discouraged and exact rules laid down restricting -the right of accusation to certain cases and individuals.[153] - ------ - -Footnote 153: - - See _infra_, under chapter 54. - ------ - -(_c_) A necessary complement of the discouragement of appeals was the -discouragement of “trial by combat” also, since that formed the natural -sequel. An ingenious device was invented and gradually extended to an -increasing number of cases; an accused individual might apply for a writ -known as _de odio et atia_, and thus avoid the _duellum_ altogether by -having his guilt or innocence determined by what was practically a jury -of neighbours.[154] - ------ - -Footnote 154: - - See _infra_, under chapter 36. - ------ - -(2) _Civil Justice._ Henry’s innovations under this head were equally -important. - -(_a_) An unflinching rule was established that no case could be brought -before the royal court until a writ had been obtained from chancery. -This had to be paid for, sometimes at a fixed rate, and sometimes at -whatever sum the Crown demanded. The whole procedure in the royal -courts, which followed the issuing of such a writ, came to be known as -“the writ process.” Once it was issued, all proceedings in other courts -must stop. One special form of writ (known as _praecipe_), in -particular, became a royal instrument for removing before the King’s own -_Curia_ cases pending in the manorial courts of mesne lords. To do this -was to enrich the King at the expense of some baron or other freeman, by -bringing to the Exchequer fees which otherwise would be paid to the -owner of the private court. This was plainly "to cause a freeman to lose -his court"—an abuse specially struck at by chapter 34 of the Great -Charter. - -(_b_) The mass of new business attracted to the King’s Courts made it -necessary to increase, the staff of judges and to distribute the work -among them. A natural division was that ordinary pleas (or common pleas) -should be tried before one set of judges, and royal pleas (or pleas of -the Crown) before another. This distinction is recognized in many -separate chapters.[155] Thus two groups of judges were formed, each of -which was at first rather a committee of the larger _Curia_ as a whole -than an independent tribunal; but, in later years, the two rapidly -developed into entirely separate courts—the Court of Common Pleas (at -first known as the Bench, that is, the ordinary Bench), and the Court of -King’s Bench (that is, the royal Bench, known also at first as the court -_Coram Rege_, since it was always supposed to be held in the King’s -presence). - -Footnote 155: - - See _infra_, under chapters 17 and 24. - ------ - -(_c_) Special procedure for determining pleas of disputed titles to land -or rights of possession was also invented by Henry to take the place of -the ancient method of trial by battle. These Assizes, as they were -called, are fully discussed elsewhere.[156] The Grand Assize was looked -on with suspicion by the barons as a procedure competent only before the -royal courts, and therefore closely bound up with the King’s other -devices for substituting his own jurisdiction for that of the private -courts. The petty assizes, on the contrary, met with a ready acceptance, -and the barons in 1215, far from objecting to their continuance, -demanded that they should be held in regular sessions four times a year -in each county of England. - -Footnote 156: - - See _infra_, under chapter 18. - ------ - -These were the chief innovations which enabled Henry, while instituting -many reforms urgently required and gladly welcomed by the mass of his -subjects, at the same time to effect a revolution in the relations of -royal justice to feudal justice. As time went on, new royal writs and -remedies were being continually devised to meet new types of cases; and -litigants flocked more and more readily to the King’s Courts, leaving -the seignorial courts empty of business and of fees. Nor was this the -only grievance of the barons. When one of their own number was amerced -or accused of any offence involving loss of liberty or lands, he might -be compelled by the Crown, under Henry and his sons, to submit to have -the amercement assessed or the criminal proceedings conducted by one of -the new Benches (by a tribunal composed of some four or five of the -King’s officials), in place of the time-honoured judgment of his peers -assembled in the _Commune Concilium_ (the predecessor of the modern -Parliament). - -Can we wonder that the barons objected to be amerced and judged by their -inferiors?[157] Can we wonder that they resented the complete though -gradual supersession of their own profitable jurisdictions by the royal -courts?[158] or that they looked with suspicion on every new legal -development of the royal justice? Can we wonder that, when they seemed -to have King John for the moment in their power, they demanded redress -of this group of grievances, as well as of those connected with -arbitrary increase of feudal burdens? - ------ - -Footnote 157: - - See _infra_, under chapters 21 and 39. - -Footnote 158: - - See _infra_, under chapter 34. - ------ - -The cause for wonder rather is that their demands in this respect were -not more sweeping and more drastic. It was one thing for their fathers -to have endured the encroachments of so strong a King as Henry II.—far -too wise a statesman to show clearly whither his innovations were -ultimately tending, and (some lapses notwithstanding) a just ruler on -the whole, using his increased prerogatives with moderation and for -national ends. It was quite another thing to endure the same -encroachments (or worse) from an unpopular King like John, discredited -and in their power, who had neither disguised his arrogance nor made -good use of his prerogatives. Royal justice, as dispensed by John, was -in every way inferior to royal justice as dispensed under his father’s -vigilant eye. Yet the exasperated barons, in the hour of their triumph, -actually accepted, and accepted cordially, one half of royal justice; -while they sought to abolish only the other half. The chapters bearing -on the question of jurisdiction may thus be arranged in two groups, some -reactionary, and some favourable to Henry’s reforms. On the one hand, no -lord of a manor shall be robbed of his court by the King evoking before -the royal courts pleas between two freeholders of the lord’s manor;[159] -no freeman shall be judged or condemned by the King’s officials, but -only before the full body of his peers (that is, of his fellow earls and -barons, if he be an earl or baron, and of his fellow tenants of the -manor, if he holds of a mesne lord);[160] earls and barons must be -amerced only by their equals.[161] On the other hand, in prescribing -remedies for various abuses connected with numerous branches of legal -procedure recently introduced into the royal courts, the barons accepted -by implication this new procedure itself and the royal encroachments -implied therein. For example, the Crown’s right to hold “Common Pleas” -was impliedly admitted, when the barons asked and obtained a promise -that these should be tried in some certain place (that is, at -Westminster).[162] Yet these very pleas, ordinary ones in which the -Crown had no special interest, as opposed to Pleas of the Crown in which -it had, must have included many cases which, prior to Henry II.’s -reforms, would not have been tried in a royal court. Again, in -regulating the various Petty Assizes, chapters 18 and 19 admit the -Crown’s right to hold them. Such Assizes must be taken henceforth four -times a year. Here, as in chapter 40, the ground of complaint is not -that there is too much of royal justice, but rather that there is too -little of it; it is henceforth to be neither delayed nor denied. -Further, the encroachments made by Henry II. in 1166 on the rights of -private franchises in the matter of criminal jurisdiction are -homologated by acquiescence in the King’s definition of “Pleas of the -Crown” implied in chapter 24. - ------ - -Footnote 159: - - c. 34 - -Footnote 160: - - c. 39. - -Footnote 161: - - c. 21. - -Footnote 162: - - c. 17. - ------ - -These, then, are the two clearly contrasted groups into which the -innovations made by Henry and his sons, within the province of justice, -naturally fell as viewed by John’s opponents in 1215: some of them had -now come to be warmly welcomed, and these, it was insisted, must be -continued by the Crown; while some of them still excited as bitter -opposition as ever, and these, it was insisted, must be utterly swept -away. - - PART III. - MAGNA CARTA: ITS FORM AND CONTENTS. - - I. Its Prototypes: Earlier Charters. - -However wide and scattered were the sources from which the substance of -the Great Charter was derived, its descent, on its formal side, can -readily be traced, through an unbroken line of antecedents, back to a -very early date. Magna Carta is directly descended from the Charter of -Liberties of Henry I., and that, again, was a written supplement to the -vows taken by that monarch at his coronation, couched in similar terms -to those invariably sworn at their anointing by the Anglo-Saxon kings of -England, from Edgar to Edward Confessor. - -The ties which thus connect King John’s promises of good government with -the promises to the same effect made at their coronation by the princes -of the old dynasty of Wessex are by no means of an accidental nature. -Not only is identity of substance, in part at least, maintained -throughout; but the promises were the outcome of an essential feature of -the old English constitution—a feature so deeply rooted that it survived -the shock of the Norman Conquest. This feature, so fundamental and so -productive of great issues, was the elective or quasi-elective nature of -the monarchy. During the Anglo-Saxon era, two rival principles, the -elective and the hereditary, struggled for the mastery in determining -the succession to the Crown. In an unsettled state of society, nations -cannot allow the sceptre to pass into the hands of an infant or a -weakling. When a king died, leaving a son of tender age, and survived by -a brother of acknowledged ability and mature powers, it was only natural -that the latter should, in the interests of peace and order, be -preferred to the throne. In such cases, the strict principle of -primogeniture was not followed. The magnates of the kingdom, the -so-called Witan, claimed the right to choose a fitting successor; yet in -so doing they usually paid as great regard to the claims of kindred as -circumstances permitted. The exact relations between the elective and -the hereditary principles were never laid down with absolute precision. -Indeed, the want of definition in all constitutional questions was -characteristic of the age—a truth not sufficiently apprehended by -writers of the school of Kemble and Freeman. The practice usually -followed by the Witenagemot was to select as the new ruler some kinsman -of the late king standing in close relationship to him, and at the same -time competent for the high post. The king-elect thus appointed had, -before his title was complete, to undergo a further ceremony: he -required to be solemnly anointed by the representative of the spiritual -power, and this gave to the Church an important share in deciding who -should be king. At an early date—exactly how early is not known, but -certainly not later than the days of Edgar—it became the invariable -practice for the officiating archbishop to exact an oath of good -government from the king-elect before his final coronation. The precise -terms of this oath became stereotyped; and, as administered by Dunstan -to King Ethelred, they are still extant.[163] - ------ - -Footnote 163: - - The words have come down to us in two versions: one Anglo-Saxon and - the other Latin. The former is preserved in _Memorials of St. Dunstan_ - (Rolls Series), p. 355, where it is translated by Dr. Stubbs:— - - "In the name of the Holy Trinity I promise three things to the - Christian people and my subjects: first, that God’s church and all - Christian people of my dominions hold true peace; the second is that I - forbid robbery and all unrighteous things to all orders; and third, - that I promise and enjoin in all dooms, justice and mercy, that the - gracious and merciful God of his everlasting mercy may forgive us all, - who liveth and reigneth." The name of the King is not mentioned, and - may have been either Edward or Ethelred, but is usually identified - with the latter. See Kemble, _Saxons in England_, II. 35. - ------ - -It may be briefly analyzed into three promises—peace to God’s Church and -people; repression of violence in men of every rank; justice and mercy -in all judgments. Such was the famous tripartite oath taken, after -celebration of mass, over the most sacred relics laid on the high altar, -in presence of Church and people, by the kings of the old Anglo-Saxon -race. When William I., anxious in all things to fortify the legality of -his title, took the oath in this solemn form, he created a precedent of -tremendous importance, although he may have regarded it at the moment as -an empty formality.[164] - ------ - -Footnote 164: - - Two independent authorities, both writing from the English point of - view, Florence of Worcester, and the author of the Worcester version - of the _Chronicle_, agree that the Conqueror took the oath; the Norman - authorities neither contradict nor confirm this. “William of Poitiers - and Guy are silent about the oath.” Freeman, _Norman Conquest_, III. - 561, note. - ------ - -This step was doubly important: as a link with the past, as a precedent -for the future. A bridge was thus thrown across the social and political -gulf of the Norman Conquest, preserving the continuity of the monarchy -and of the basis on which it was founded. The elective character of the -kingship, the need for coronation by the Church, and (the natural -supplement of both) this tripartite oath containing promises of good -government, valuable though vague, were all preserved. - -This was of vital moment, because limits were thereby placed, in theory -at least, on prerogatives that threatened in practice to become -absolute. Undoubtedly the power of the Norman kings was very great, and -might almost be described as irresponsible despotism, tempered by the -fear of rebellion. Three forces indeed acted as curbs: the practical -necessity for consulting the Curia Regis (or assembly of crown vassals) -before any vital step was taken; the restraining influence of the -national Church, backed by the spiritual powers of Rome; and the growth, -in a vague form, it is true, of a body of public opinion confined as yet -to the upper classes. - -All these elements counted for something, but failed to restrain -sufficiently even an average king; while they were powerless against a -strong ruler like William I. The only moment at which the Crown might be -taken at a clear disadvantage was during the interregnum which followed -the death of the last occupant of the throne. Two or more rival heirs -might aspire to the high position, and would be eager to make promises -in return for support. Thus, William Rufus, at his father’s death, -anxious to prevent his elder brother, Duke Robert, from making good his -claim to the English throne, succeeded chiefly through the friendship of -Lanfranc. To gain this, he was compelled to make promises of good -government, and to follow his father’s precedent by taking the oath in -the ancient form, in which it had been administered by Dunstan to -Ethelred. In the same reign began the practice of supplementing verbal -promises by sealed charters, which in some respects must be regarded -simply as the old coronation oath confirmed, expanded, and reduced to -writing. No such charter was indeed issued either by Rufus or by his -father when they were crowned; but the younger William, at a critical -period later in his reign, seems to have granted a short Charter of -Liberties, the exact contents of which have not come down to us. At the -death of Rufus, his younger brother, Henry I., found himself hard -pressed in the competition for the English Crown by Duke Robert (the -Conqueror’s eldest son). By a treaty made at Caen in 1091, Duke Robert -and Rufus had agreed that each should constitute the other his heir. -Thus Henry was, in a sense, a usurper, and this circumstance made it -necessary for him to bid high for influential support.[165] It is to -this doubtful title, coupled with the knowledge of widespread -disaffection, that Englishmen owe the origin of the first Charter of -Liberties that has come down to us.[166] - ------ - -Footnote 165: - - Stubbs, _Const. Hist._, I. 328-9, and authorities there cited. - -Footnote 166: - - See Appendix. - ------ - -This charter was the price paid by Henry for the support he required in -his candidature for the Crown. In granting it he admitted, in a sense, -the contractual basis of his kingship. In discussing its tone and -general tenor there is ample room for differences of opinion. Dr. -Stubbs[167] maintains that Henry thereby “definitely commits himself to -the duties of a national King.” Writers of almost equal authority -somewhat modify this view, holding that, although circumstances forced -Henry to pose as the leader of the entire nation, yet nothing of this -could be traced in the charter, the basis of which seems to have been -feudal rather than national.[168] - ------ - -Footnote 167: - - _Const. Hist._, I. 331. - -Footnote 168: - - See Prothero, _Simon de Montfort_, 16: “That charter had been mainly - of a feudal character; it contained no provision for, and scarcely - even hinted at, a constitutional form of government.” - ------ - -This view is strengthened by analysis of the actual provisions of the -charter. While important and definite concessions were made to the -Church and to the Crown-tenants, those to the people at large were few -and vague—so vague as to be of little practical use. The Church, it was -declared, “should be free,” a wide phrase to which these particulars -were added, namely, that the wardship of sees during vacancies should -not be sold or hired out, and that no sums should be demanded in name of -reliefs from the lands or tenants of a see when a death occurred. The -“baronage” (to use a convenient anachronism for “the Crown-tenants -considered collectively”) received redress of their worst grievances in -regard to reliefs and other feudal obligations. In this respect Henry’s -charter anticipated and even went beyond some of the reforms of -1215.[169] - ------ - -Footnote 169: - - Details are reserved for consideration under the feudal clauses of the - Great Charter. - ------ - -It is true that the mass of the people may have indirectly benefited by -many of these provisions; but when we look for measures of a directly -popular character, only three can be found, namely, promises to enforce -peace in the land, to take away evil customs, and to observe the laws of -Edward Confessor as amended by William I. This is too slender a basis on -which to found a claim to take rank as a “national king,” even if Henry -had any intention of keeping his promises. It is now notorious that not -a single promise remained unbroken.[170] - ------ - -Footnote 170: - - See Round, _Feudal England_, 227, and Pollock and Maitland, I. 306. - ------ - -From another point of view the charter is a criticism on the -administration of Rufus (and to some extent also of the Conqueror), -combined with a promise of amendment. Henry thus posed as a reformer, -and forswore the evil customs of his father and brother. The great value -of the charter, however, lies in this, that it is the first formal -acceptance (published under seal and in proper legal shape) of the old -law of Anglo-Saxon England by a ruler of the new alien dynasty; yet in -this Henry was only completing what his father had begun. These -considerations help to account for the almost exaggerated importance -attached to Henry’s charter during the reign of John. - -If all efforts made to defeat Henry’s succession failed, the succession -of his daughter Matilda was disputed triumphantly. Stephen, taking -advantage of his cousin’s absence and of her personal unpopularity, made -a rapid descent on England with the spasmodic energy which characterized -him, and successfully snatched the Crown. Trained in English ways on -English soil, he was quickly on the spot and very popular. These -features in his favour, however, did not render his position entirely -secure as against the daughter and heiress of so strong a King as Henry -I., to whom, indeed, Stephen himself, with all the magnates of England, -had already thrice sworn allegiance. He was only one of two competitors -for the Crown, with chances nearly equal. From the moment of the old -King’s death, “the Norman barons treated the succession as an open -question.” In these words of Bishop Stubbs,[171] Mr. J. H. Round -finds[172] the keynote of the reign. Stephen was never secure on his -throne, and had to make indiscriminate promises first to obtain, and -afterwards to retain, his position. He was thus prepared to bid much -higher for support than Henry had felt compelled to do. Adherents had to -be gained painfully, one by one, by the grant of special favours to -every individual whose support was worth the buying. - ------ - -Footnote 171: - - Stubbs, _Const. Hist._, I. 345. - -Footnote 172: - - Round, _Geoffrey de Mandeville_, p. 1. - ------ - -Bargains were struck with the Londoners, with Stephen’s brother Henry of -Blois (Bishop of Winchester), with the Keepers of the King’s Treasure, -with the Archbishop of Canterbury, and with the Justiciar (Bishop Roger -of Salisbury). The support of the two last mentioned carried with it the -support of the Church and of the administrative staff of the late king, -but was only gained by wide concessions. Thus Stephen, like William of -Orange, five centuries later, agreed to become “king upon conditions.” A -Charter of Liberties and a solemn oath securing "the liberty of the -Church"—a vague phrase, it is true, but none the less dangerous on that -account—together formed the price of Stephen’s consecration; and this -price was not perhaps too high when we remember that "election was a -matter of opinion, coronation a matter of fact"—a solemn sacrament that -could hardly be undone.[173] - ------ - -Footnote 173: - - Round, _Geoffrey de Mandeville_, p. 6. Mr. Round, _ibid._, p. 438, - explains that the reason of the omission from this earlier charter of - Stephen (unlike the more lengthy and important one which followed four - months later) of all mention of the Church was that Stephen, at the - time of granting, supplemented it by the verbal promise recorded by - William of Malmesbury, _de libertate reddenda ecclesiae et - conservanda_. - ------ - -Even this important ceremony, however, left Stephen’s throne a tottering -one; he was compelled to buy the adherence of powerful magnates by -lavish concessions of land and franchises; and various charters in -favour of individual nobles still exist as witnesses to such bribes. The -process by which he built up a title to the Crown seems to have -culminated in the Easter of 1136, when he secured the support of -Matilda’s half-brother Robert, Earl of Gloucester, whose lead was -quickly followed by other influential nobles. All of these new -adherents, however, performed homage to the King under an important -reservation, namely, that their future loyalty would be strictly -conditional on the treatment extended to them by Stephen. That -unfortunate monarch accordingly, by tolerating such conditional -allegiance, was compelled to acknowledge the inherent weakness of his -position even in the moment of his nominal triumph.[174] - ------ - -Footnote 174: - - The whole incident is so remarkable that it seems well to cite the - exact words of William of Malmesbury, II. 541: “_Itaque homagium regi - fecit sub conditione quadam, scilicet quamdiu ille dignitatem suam - integre custodiret et sibi pacta servaret_.” - ------ - -These important transactions took place apparently at Oxford,[175] and -at the same time the King issued his second or Oxford Charter, which -embodied and expanded the contents of earlier charters and oaths. This -Oxford Charter, the date of which has been proved to be early in -April,[176] is noteworthy alike for the circumstances in which it was -granted, placing as it did the copestone on the gradual process by which -Stephen was “elected” king, and also for its contents, which combined -the earlier oath to the Church and the vague, unsatisfactory earlier -charter to the people, with the new conditions extorted by Earl Robert -and his followers. - ------ - -Footnote 175: - - Round, _Geoffrey_, 22. - -Footnote 176: - - Round, _Geoffrey_, 23–4. - ------ - -The opening words, in which Stephen describes himself as “King of the -English,” may be read as a laboured attempt to set forth a valid title -to the throne. All reference to predecessors is carefully avoided, and -the usurper declares himself to be king "by appointment of the clergy -and people, by consecration of the archbishop and papal legate, and by -the Pope’s confirmation."[177] - ------ - -Footnote 177: - - Stephen was not justified in this last assumption. See Round, - _Geoffrey_, 9. - ------ - -Perhaps its chief provisions are those in favour of the Church, -supplementing a vague declaration that the Church should be “free” by -specific promises that the bishops should have exclusive jurisdiction -and power over churchmen and their goods, along with the sole right to -superintend their distribution after death. Here was a clear -confirmation of the right of the Courts Christian to a monopoly of all -pleas affecting the clergy or their property. It is the first distinct -enunciation in England of the principle afterwards known as "benefit of -clergy"—and that, too, in a form more sweeping than was ever afterwards -repeated. Stephen also explicitly renounced all rights inherent in the -Crown to wardship over Church lands during vacancies—a surrender never -dreamed of by either Henry I. or Henry II. - -Grants to the people at large followed. A general clause promising peace -and justice was again supplemented by specific concessions of more -practical value, namely, a promise to extirpate all exactions, unjust -practices, and “miskennings” by sheriffs and others, and to observe -good, ancient, and just customs in respect of murder-fines, pleas, and -other causes. - -Strangely enough, there is only one provision specially benefiting -feudal magnates, the King’s disclaimer of all tracts of land afforested -since the time of the two Williams. The omission of further feudal -concessions must not be attributed either to Stephen’s strength, or to -any spirit of moderation or self-sacrifice in the magnates. Each baron -of sufficient importance had already extorted a special charter in his -own favour, more emphatic and binding from its personal nature, and -accordingly more valued than a mere general provision in favour of all -and sundry. Such private grants generally included a confirmation of the -grantee’s right to maintain his own feudal stronghold, thus placing him -in a position of practical independence. - -It is instructive to compare these wide promises of Stephen with the -meagre words of the charter granted by Henry of Anjou at or soon after -his Coronation.[178] Henry II. carefully omits all mention of Stephen -and his charters, not, as is sometimes supposed, because he did not wish -to acknowledge the existence of a usurper, but because of that usurper’s -lavish grants to the Church. Henry had no intention either to confirm -“benefit of clergy” in so sweeping a form as Stephen had done, or to -renounce wardship over the lands of vacant sees. - ------ - -Footnote 178: - - The charter of Henry II. is given in Bémont, _Chartes_, 13, and in - _Select Charters_, 135. It seems worth while to mention in this - connection a notable mistake of a writer whose usual accuracy is - envied by his brother historians. Mr. J. H. Round (_Engl. Hist. Rev._, - VIII. 292) declares that “the royal power had increased so steadily - that Henry II. and his sons had been able to abstain from issuing - charters, and had merely taken the old tripartite oath.” - ------ - -To the Church, as to the barons, Henry Plantagenet confirms only what -his grandfather had already conceded. Even when compared with the -standard set by the charter of Henry I., that of the younger Henry is -shorter and less explicit, and therefore weaker and more liable to be -set aside—features which justified Stephen Langton in his preference for -the older document. If Henry II. granted a short and grudging charter, -neither of his sons, at their respective coronations, granted any -charter at all. Reasons for the omission readily suggest themselves; the -Crown had grown strong enough to dispense with this unwelcome formality, -partly because of the absence of rival competitors for the throne, and -partly because of the perfection to which the machinery of government -had been brought. The utmost which the Church could extract from Richard -and John as the price of their consecration was the renewal of the three -vague promises contained in the words of the oath, now taken as a pure -formality. The omission to grant charters was merely one symptom of the -diseases of the body politic consequent on the overweening power of the -Crown, and proves how urgent was the need of some such re-assertion of -the nation’s liberties as came in 1215. - -John, at least, was not to be allowed to shake himself free from the -obligations of his oath, or from the promise to confirm the ancient laws -and customs of the land therein contained. Stephen Langton, before -absolving him from the effects of his quarrel with Rome, compelled him -to renew the terms of the coronation oath.[179] - ------ - -Footnote 179: - - See _supra_, p. 32, and Round, _Eng. Hist. Rev._, VIII. 292. - -Nor was this all; from a meeting held at St. Albans on 4th August, 1213, -writs were issued in the King’s name to the various sheriffs, bidding -them observe the laws of Henry I. and abstain from unjust -exactions.[180] Three weeks later (on 25th August), the production of a -stray copy of Henry’s charter is said, by Roger of Wendover, to have -made a startling impression on all present,[181] and the same charter -was a second time produced at Bury St. Edmunds, on 4th November, 1214, -and was accepted by the malcontents as a model which, modified and -enlarged, might serve as a basis for the redress of the grievances of -the reign.[182] - ------ - -Footnote 180: - - _Supra_, p. 34. - -Footnote 181: - - _Supra_, p. 35. - -Footnote 182: - - _Supra_, p. 38. - ------ - -It is thus both excusable and necessary to place much stress on this -sequence of coronation oaths and charters, as contributing both to the -form and to the substance of the Magna Carta of John. Yet the tendency -to take too narrow a view of the antecedents of the Great Charter must -be carefully guarded against. Many ingredients went to the making of it. -Numerous reforms of Henry II., whether embodied or not in one or more of -the ordinances or assizes that have come down to us, must be reckoned -among their number, equally with those constitutional documents which -happen to be couched in the form peculiar to charters granted under the -king’s great seal. It is also necessary to remember the special grants -made by successive kings of England to the Church, to London and other -cities, and to individual prelates and barons. In a sense, the whole -previous history of England went to the making of Magna Carta. The -sequence of coronation oaths and charters is only one line of descent; -the Great Charter of John can trace its origin through many other lines -of distinguished ancestors. - - II. Magna Carta: its Form and Juridical Nature. - -Much ingenuity has been expended, without adequate return, in the effort -to discover which particular category of modern jurisprudence most -exactly describes the Great Charter of John. Is it an enacted law, or a -treaty; the royal answer to a petition; or a declaration of rights? Is -it a simple pact, bargain, or agreement between contracting parties? Or -is it a combination of two or more of these? Something has been said in -favour of almost every possible view, perhaps more to the bewilderment -than to the enlightenment of students of history uninterested in legal -subtleties. - -The claim of Magna Carta to rank as a formal act of legislation has been -supported on the ground that it was promulgated in what was practically -a _commune concilium_. King John, it is maintained, met in a national -assembly all the estates of his realm who were then endowed with -political rights, and these concurred with him in the granting of Magna -Carta. The consent of all who claimed a share in the making or repealing -of laws—archbishops, bishops, abbots, earls, and crown-tenants, great -and small—entitles the Charter to rank as a regular statute. - -Against this view, however, technical informalities may be urged. Both -the composition of the Council and the procedure adopted there, were -irregular. No formal writs of summons had been issued, and, therefore, -the meeting was never properly constituted; many individuals with the -right and duty of attendance had no opportunity to be present. Further, -the whole proceedings were tumultuary; the barons assembled in military -array and compelled the consent of John by turbulence and show of force. -On these grounds, modern jurisprudence, if appealed to, would reject the -claim of the Charter to be enrolled as an ordinary statute. - -On the other hand, it may be argued that Magna Carta, while something -less than a law, is also something more. A law made by the king in one -national assembly might be repealed by the king in another; whereas the -Great Charter was intended by the barons to be unchangeable. It was -granted to them and their heirs for ever; and, in return, a price had -been paid, namely, the renewal of their allegiance—a fundamental -condition of John’s continued possession of the throne.[183] - ------ - -Footnote 183: - - The _quid pro quo_ received by the King was merely the promise of - _conditionel_ homage, dependent (as we learn from chapter 63) on his - observance of the conditions of the Charter. This arrangement may be - compared with the agreement made between Stephen and the Earl of - Gloucester in 1136 (see _supra_, p. 120), and it bears some points of - analogy with the procedure adopted by the framers of the Bill of - Rights, who inserted a list of conditions in the Act of Parliament - which formed the title of William and Mary to the throne of England. - ------ - -Magna Carta has also been frequently described as a treaty. Such is the -verdict of Dr. Stubbs.[184] “The Great Charter, although drawn up in the -form of a royal grant, was really a treaty between the King and his -subjects.... It is the collective people who really form the other high -contracting party in the great capitulation.”[185] This view receives -some support from certain words contained in chapter 63 of the Charter -itself: “_Juratum est autem tam ex parte nostra quam ex parte baronum, -quod haec omnia supradicta bona fide et sine malo ingenio -observabuntur_.” - ------ - -Footnote 184: - - _Const. Hist._, I. 569. - -Footnote 185: - - Mr. Prothero is of the same opinion (_Simon de Montfort_, 15). It was - “in reality a treaty of peace, an engagement made after a defeat - between the vanquished and his victors.” - ------ - -It is not sufficient to urge against this theory, as is sometimes done, -that the concord was entered into in bad faith by one or by both of the -contracting parties. It is quite true that the compromise it contained -was accepted merely as a cloak under which to prepare for war; yet -jurisprudence, in treating of formal documents granted under seal, pays -no attention to sincerity or insincerity, but looks merely to the formal -expression of consent. - -Interesting questions might also be raised as to how far it is correct -to extend to treaties the legal rule which declares void or voidable all -compacts and agreements induced by force or fear. In a sense, every -treaty which ends a great war would fall under such condemnation, since -the vanquished nation always bows to _force majeure_. Such claims as the -Great Charter may have to rank as a treaty are not, therefore, -necessarily weakened by John’s subsequent contention that when granting -it he was not a free agent. - -There is, however, a more radical objection. A treaty is a public act -between two contracting powers, who must, to meet the requirements of -modern jurisprudence, be independent States or their accredited agents; -while John and his opponents were merely fragments of one nation or -State, torn asunder by mutual fears and jealousies. - -Some authorities discard alike the theory of legislation and the treaty -theory to make way for a third, namely, that Magna Carta is merely a -contract, pact, or private agreement. M. Emile Boutmy is of this -opinion. "Le caractère de cet acte est aisé à définir.[186] Ce n’est pas -précisément un traité, puisqu’il n’y a pas ici deux souverainetés -légitimes ni deux nations en présence; ce n’est pas non plus une loi; -elle serait entachée d’irrégularité et de violence; c’est un compromis -ou un pacte."[187] - ------ - -Footnote 186: - - Here we differ from him. - -Footnote 187: - - _Études de droit constitutionnel_, 41. - ------ - -Thus considered, the proudest act of the national drama would take its -place in the comparatively humble legal category which includes such -transactions as the hire of a waggon or the sale of a load of corn. -There are, however, fatal objections to this theory also. It is -difficult to see how the plea of “force,” if sufficient (as M. Boutmy -urges) to render null the enactment of a public law, would not be even -more effective in reducing a private agreement. If Magna Carta has no -other basis than the declared consent of the contracting parties, it -seems safer to describe it as a public treaty than as a private or civil -pact devoid of political significance. - -Other theories also are possible; as, for example, that the Great -Charter is of the nature of a Declaration of Rights, such as have played -so prominent a part in the political history of France and of the United -States; while a recent American writer on English constitutional -development seems almost to regard it as a code, creating a formal -constitution for England—in a rude and embryonic form, it is true. “If a -constitution has for its chief object the prevention of encroachments -and the harmonizing of governmental institutions, Magna Carta answers to -that description, at least in part.”[188] - ------ - -Footnote 188: - - Prof. Jesse Macy, _English Constitution_, 162. - ------ - -It would be easy to find examples of attempts to compromise between -these competing theories, by combining two or more of them. Thus, a high -English authority declares that “the Great Charter is partly a -declaration of rights, partly a treaty between Crown and people.”[189] - ------ - -Footnote 189: - - Sir William R. Anson, _Law of the Constitution_, I. 14. - ------ - -The essential nature of what took place at Runnymede, in June, 1215, is -plain, when stripped of legal subtleties. A bargain was struck between -the King and the rebel magnates, the purport of which was that the -latter should renew their oaths of fealty and homage, and give security -that they would keep these oaths, while John, in return, granted “to the -freemen of England and their heirs for ever” the liberties enumerated in -sixty-three chapters. No one thought of asking whether the transaction -thus concluded was a “treaty” or a private “contract.” - -The terms of this bargain, however, had to be drawn up in proper legal -form, so as to bear record for all time to the exact nature of the -provisions therein contained, and also to the authenticity of John’s -consent thereto. It was, therefore, reduced to writing, and the -resulting document was naturally couched in the form invariably used for -all irrevocable grants intended to descend from father to son, namely, a -feudal charter, authenticated by the addition of a seal—just as in the -case of a grant of land, and with many of the clauses appropriate to -such a grant.[190] - ------ - -Footnote 190: - - In strict legal theory the complete investiture of the grantee - required that “charter” should be followed by “infeftment” or delivery - (real or constructive) of the subject of the grant. In the case of - such intangible things as political rights and liberties, the actual - parchment on which the Charter was written would be the most natural - symbol to deliver to the grantees. - ------ - -John grants to the freemen of England and their heirs certain specified -rights and liberties, as though these were merely so many hides or acres -of land. _Concessimus etiam omnibus liberis hominibus regni nostri, pro -nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, -habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus -nostris._[191] The legal effect of such a grant is hard to determine; -and insuperable difficulties beset any attempt to expound its legal -consequences in terms of modern law.[192] In truth, the form and -substance of Magna Carta are badly mated. Its substance consists of a -number of legal enactments and political and civil rights; its form is -borrowed from the feudal lawyer’s book of styles for conferring a title -to landed estate.[193] - ------ - -Footnote 191: - - See chapter 1. The grant which thus purports to be perpetually binding - on John’s heirs, was in practice treated as purely personal to John, - and requiring confirmation by his son. Yet this also was in strict - accordance with feudal theory, which required the heir to complete his - title to his deceased father’s real estate by obtaining a Charter of - Confirmation from his lord, for which he had to pay “relief.” The - liberties of the freemen were only a new species of real estate. - -Footnote 192: - - Prof. Maitland, _Township and Borough_, p. 76, explains some of the - absurdities involved: "Have you ever pondered the form, the scheme, - the main idea of Magna Charta? If so, your reverence for that sacred - text will hardly have prevented you from using in the privacy of your - own minds some such words as ‘inept’ or ‘childish.’ King John makes a - grant to the men of England and their heirs. The men of England and - their heirs are to hold certain liberties of that prince and his heirs - for ever. Imagine yourself imprisoned without the lawful judgment of - your peers, and striving to prove while you languish in gaol that you - are heir to one of the original grantees. Nowadays it is only at a - rhetorical moment that Englishmen ‘inherit’ their liberties, their - constitution, their public law. When sober, they do nothing of the - kind. But, whatever may have ‘quivered on the lip’ of Cardinal Langton - and the prelates and barons at Runnymead, the speech that came was the - speech of feoffment. Law, if it is to endure, must be inherited. If - all Englishmen have liberties, every Englishman has something, some - thing, that he can transmit to his heir. Public law cannot free itself - from the forms, the individualistic forms of private law." - -Footnote 193: - - Pollock and Maitland, I. 150, emphasize this disparity. “In form a - donation, a grant of franchises freely made by the king, in reality a - treaty extorted from him by the confederate estates of the realm, ... - it is also a long and miscellaneous code of laws.” Cf. also _Ibid._, - I. 658. - -The results of this inquiry seem then to be completely negative. It is -useless to describe phenomena of the thirteenth century in modern -phraseology which would have been unintelligible to contemporaries. -Medieval lawyers experienced great difficulties in trying to express the -actual facts of their day in terms of such categories of the Roman -jurisprudence as had survived the fall of Rome and Roman civilization. -There is no one of the ancient or modern categories which can be applied -with confidence to the Great Charter or to the transaction of which it -is the record. Magna Carta may perhaps be described as a treaty or a -contract which enacts or proclaims a number of rules and customs as -binding in England, and reduces them to writing in the unsuitable form -of a feudal charter granted by King John to the freemen of England and -their heirs. - - III. Magna Carta: its Contents and Characteristics. - -The confirmation of the rights enumerated in the sixty-three chapters of -the Charter represented the price paid by John for the renewed -allegiance of the rebels. These rights are fully discussed, one by one, -in the second part of the present volume: a brief description of their -more prominent characteristics, when viewed as a collective whole, is, -therefore, all that is here required. - -In the attempt to analyze the leading provisions, various principles of -classification have been adopted. Three of these stand out prominently: -the various chapters may be arranged according to the functions of the -central government which they were intended to limit; according to their -own nature as progressive, reactionary, or merely declaratory; and, -finally, according to the classes of the community which reaped the -greatest benefit. - -I. _Provisions classified according to the various prerogatives of the -Crown which they affect._ - -Dr. Gneist[194] adopts this principle of division, and arranges the -chapters of Magna Carta into five groups according as they place legal -limitations (1) on the feudal military power of the Crown, (2) on its -judicial power, (3) on its police power, (4) on its financial power, or -(5) furnish a legal sanction for the enforcement of the whole. In spite -of Dr. Gneist’s high authority, it is doubtful whether an analysis of -Magna Carta upon these somewhat arbitrary lines throws much light on its -main objects or results. Such a division, if convenient for some -purposes, seems artificial and unreal, since it is founded on -distinctions which were not clearly formulated in the thirteenth -century. The adoption of such a principle of classification with -reference to a period when the various functions of the executive were -still blended together indiscriminately is somewhat of an -anachronism.[195] - ------ - -Footnote 194: - - _Hist. Engl. Const._, Chapter XVIII. - -Footnote 195: - - Dr. Gneist indeed almost confesses this, when, in discussing the - limitations of the financial power, he feels constrained to say that - many of these are “already comprised in the provisions touching the - feudal power.” - ------ - -II. _Provisions classified according as they are of a progressive, -reactionary, or declaratory nature._ - -Among the many questions pressing for answer, none seem more natural -than those which inquire into the relations between the promises made in -the Charter and the system of government actually at work under Henry of -Anjou and his sons; or the relations between these promises and the -still older laws of Edward Confessor. - -The view generally entertained is that the provisions of Magna Carta are -chiefly, if not exclusively, of a declaratory nature. The Great Charter -has for many centuries been described as an attempt to confirm and -define existing customs rather than to change them. In the words of -Blackstone,[196] writing in 1759, “It is agreed by all our historians -that the Great Charter of King John was for the most part compiled from -the ancient customs of the realm, or the laws of King Edward the -Confessor, by which they usually mean the common law, which was -established under our Saxon princes, before the rigours of feudal -tenures and other hardships were imported from the continent.” -Substantially the same doctrine has been enunciated only the other day, -by our highest authority. "On the whole, the charter contains little -that is absolutely new. It is restorative. John in these last years has -been breaking the law; therefore the law must be defined and set in -writing.[197] This view seems, on the whole, a correct one; the -insurgents in 1215 professed to be demanding nothing new, but merely a -return to the good laws of Edward Confessor, as supplemented by the -promises contained in the charter of Henry I. An unbroken thread runs -back from Magna Carta to the laws and customs of Anglo-Saxon England and -the old coronation oaths of Ethelred and Edgar. Yet the Great Charter -contained much that was unknown to the days of the Confessor and had no -place in the promises of Henry I. In many points of detail the Charter -must look for its antecedents rather to the administrative changes -introduced by Henry II. than to the old customary law that prevailed -before the Conquest. - ------ - -Footnote 196: - - _Great Charter_, vii. - -Footnote 197: - - Pollock and Maitland, I. 151. - ------ - -Thus it is not sufficient to describe Magna Carta merely as a -declaratory enactment; it is necessary to distinguish between the -different sources of what it declared. A fourfold division may be -suggested. (1) Magna Carta embodied and handed down to future ages some -of the usages of the old customary law of Anglo-Saxon England, unchanged -by the Conqueror or his successors, now confirmed and purified from -abuses. (2) In defining feudal incidents and services, it confirmed many -rules of the feudal law brought into England by the Normans subsequently -to 1066. (3) It also embodied many provisions of which William I. and -even Henry I. knew no more than did the Anglo-Saxon kings—innovations -introduced for his own purposes by Henry of Anjou, but, after half a -century of experience, now accepted loyally even by the most bitter -opponents of the Crown. In the words of Mr. Prothero, “We find ... the -judicial and administrative system established by Henry II. preserved -almost intact in Magna Carta, though its abuse was carefully guarded -against.”[198] Finally, (4) in some few points, the Charter actually -aimed at going farther than Henry II., great reformer as he was, had -intended to go. Thus, to mention only two particulars, the Petty Assizes -are to be taken in every county four times a year, while sheriffs and -other local magistrates are entirely prohibited from holding pleas of -the Crown. - ------ - -Footnote 198: - - _Simon de Montfort_, 17. - ------ - -There are two further reasons why we cannot be content with an -explanation which dismisses Magna Carta with the bald statement that its -provisions are merely of a declaratory nature. History has proved the -universal truth of the theory that a purely declaratory enactment is -impossible; since the mere lapse of time, by producing an altered -historical context, necessarily changes the purport of any Statute when -re-enacted in a later age. Even if words identically the same are -repeated, the new circumstances read into them a new meaning. Such is -the case even when the framers of these re-enactments are completely -sincere, which, often, they are not. It is no unusual device for -innovators to render their reforms more palatable by presenting them -disguised as returns to the past. Magna Carta affords many illustrations -of this. Its clauses, even where they profess to be merely confirmatory -of the _status quo_, in reality alter existing custom. - -Further, it is of vital importance to bear in mind the exact nature of -the provisions confirmed or declared. A re-statement of some of the more -recent reforms of Henry II. (or of those of Archbishop Hubert Walter, -following in his footsteps) leads logically to progress rather than to -mere stability; while the professed confirmation of Anglo-Saxon usages -or of ancient feudal customs, fast disappearing under the new _régime_, -implies retrogression rather than standing still. Chapters 34 and 39 of -Magna Carta, for example, are of this latter kind. They really demand a -return to the system in vogue prior to the innovations of Henry II. when -they declare in favour of feudal jurisdictions. Thus, some of the -provisions of the Great Charter which, at a casual glance, appear to be -correctly described as declaratory, are, in reality, innovations; while -others tend towards reaction. - -III. _Provisions classified according to the estates of the community in -whose favour they were conceived._ - -This third principle of arrangement would stand condemned as completely -misleading, if it were necessary to accept as true, in any literal -sense, the assertions so frequently made concerning the absolute -equality of all classes and interests before the law—as that law was -embodied in Magna Carta. Here, then, we are face to face with a -fundamental question of immense importance: Does the Great Charter -really, as the orthodox traditional view so vehemently asserts, protect -the rights of the whole mass of humble Englishmen equally with those of -the proudest noble? Is it really a great bulwark of the constitutional -liberties of the nation, considered as a nation, in any broad sense of -that word? Or is it rather, in the main, a series of concessions to -feudal selfishness wrung from the King by a handful of powerful -aristocrats? On such questions, learned opinion is sharply divided, -although an overwhelming majority of authorities range themselves on the -popular side, from Coke (who assumes in every page of his _Second -Institute_ that the rights won in 1215 were as valuable for the villein -as for the baron) down to writers of the present day. Lord Chatham in -one of his great orations[199] insisted that the barons who wrested the -Charter from John established claims to the gratitude of posterity -because they “did not confine it to themselves alone, but delivered it -as a common blessing to the whole people”; and Sir Edward Creasy,[200] -in citing Chatham’s words with approval, caps them with more ecstatic -words of his own, declaring that one effect of the Charter was “to give -and to guarantee full protection for property and person to every human -being that breathes English air.” Lord Chatham indeed spoke with the -unrestrained enthusiasm of an orator; yet staid lawyers and historians -like Blackstone and Hallam seem to vie with him in similar expressions. -“An equal distribution of civil rights to all classes of freemen forms -the peculiar beauty of the charter”; so we are told by Hallam.[201] -Bishop Stubbs unequivocally enunciated the same doctrine. “Clause by -clause the rights of the commons are provided for as well as the rights -of the nobles.... This proves, if any proof were wanted, that the -demands of the barons were no selfish exactions of privilege for -themselves.”[202] - ------ - -Footnote 199: - - House of Lords, 9th January, 1770. - -Footnote 200: - - _History of English Constitution_, 151. - -Footnote 201: - - _Middle Ages_, II. 447. - -Footnote 202: - - _Const. Hist._, I. 570-1. - ------ - -Dr. Gneist is of the same opinion. “Magna Carta was a pledge of -reconciliation between all classes. Its existence and ratification -maintained for centuries the notion of fundamental rights as applicable -to all classes in the consciousness that no liberties would be upheld by -the superior classes for any length of time, without guarantees of -personal liberties for the humble also.”[203] - ------ - -Footnote 203: - - Gneist, _Hist. of Engl. Parl._ (trans. by A. H. Keane), 103. Cf. his - _Const. Hist._ (trans. by P. A. Ashworth), 253. “A separate right for - nobles, citizens, and peasants, was no longer possible.” - -“The rights which the barons claimed for themselves,” says John Richard -Green,[204] before proceeding to enumerate them, “they claimed for the -nation at large.” The testimony of a very recent writer, Dr. Hannis -Taylor,[205] may close this series. “As all three orders participated -equally in its fruits, the great act at Runnymede was in the fullest -sense of the term a national act, and not a mere act of the baronage on -behalf of their own special privileges.” It would be easy to add to this -“cloud of witnesses,” but enough has been said to prove that it has been -a common boast of Englishmen, for many centuries, that the provisions of -the Great Charter were intended to secure, and did secure, the liberties -of every class and individual of the nation, not merely those of the -feudal magnates on whose initiative the quarrel was raised. - ------ - -Footnote 204: - - _Short History of the English People_, 124. - -Footnote 205: - - _English Constitution_, I. 380. - ------ - -It must not be forgotten, however, that the truth of historical -questions does not depend on the counting of votes, or the weight of -authority; nor that a vigorous minority has always protested on the -other side. “It has been lately the fashion,” Hallam confesses, “to -depreciate the value of Magna Charta, as if it had sprung from the -private ambition of a few selfish barons, and redressed only some feudal -abuses.”[206] It is not safe to accept, without a careful consideration -of the evidence, the opinions cited even from such high authorities. -“Equality” is essentially a modern ideal: in 1215, the various estates -of the realm may have set out on the journey which was ultimately to -lead them to this conception, but they had not yet reached their goal. -For many centuries after the thirteenth, class legislation maintained -its prominent place on the Statute Rolls, and the interests of the -various classes were by no means always identical. - ------ - -Footnote 206: - - _Middle Ages_, II. 447. See, _e.g._ Robert Brady, _A Full and Clear - Answer_ (1683). - ------ - -Two different parts of the Charter have a bearing on this question; -namely, chapter 1, which explains to whom the rights were granted, and -chapter 61, which declares by whom they were to be enforced. John’s -words clearly tell us that the liberties were confirmed “to all freemen -of my kingdom and their heirs for ever.” This opens up the crucial -question—who were _freemen_ in 1215? - -The enthusiasm, natural and even laudable in its proper place, although -fatal to historical accuracy in its results, which seeks to enhance the -merits of Magna Carta by exalting its provisions and extending their -scope as widely as possible, has led commentators to stretch the meaning -of “freeman” to its utmost limits. The word has even been treated as -embracing the entire population of England, including not only -churchmen, merchants, and yeomen, but even villeins as well. There are -reasons, however, for believing that it should be understood in a sense -much more restricted, although the subject is darkened by the vagueness -of the word, and by the difficulty of determining whether it bears any -technical signification or not. “Homo,” in medieval law-Latin, has a -peculiar meaning, and was originally used as synonymous with "baro"—all -feudal vassals, whether of the Crown or of mesne lords, being described -as “men” or “barons.” The word was sometimes indeed more loosely used, -as may have been the case in chapter 1. Yet Magna Carta is a feudal -charter, and the presumption is in favour of the technical feudal -meaning of the word—a presumption certainly not weakened by the addition -of an adjective confining it to the “free.” This qualifying word -certainly excluded villeins, and possibly also the great burgess class, -or many of them. There is a passage in the _Dialogus de Scaccario_ -(dating from the close of the reign of Henry II.), in which Richard -Fitz-Nigel reckons even the richest burgesses and traders as not fully -free. He discusses the legal position of any knight (_miles_) or other -freeman (_liber homo_) losing his status by engaging in commerce in -order to make money.[207] This does not prove that rich townsmen were -ranked with the _villani_ of the rural districts; but it does raise a -serious doubt whether in the strict legal language of feudal charters -the words _liberi homines_ would be interpreted by contemporary lawyers -as including the trading classes. Such doubts are strengthened by a -narrow scrutiny of those passages of the Charter in which the term -occurs. In chapter 34 the _liber homo_ is, apparently, assumed to be a -landowner with a private manorial jurisdiction of which he may be -deprived. In other words, he is the holder of a freehold estate of some -extent—a great barony or, at the least, a manor. In this part of the -Charter the “freeman” is clearly a county gentleman. - ------ - -Footnote 207: - - _Dialogus_, II. xiii. c. - -Is the “freeman” of chapter 1 something different? The question must be -considered an open one; but much might be said in favour of the opinion -that “freeman” as used in the Charter is synonymous with “freeholder”; -and that therefore only a limited class could, as grantees or the heirs -of such, make good a _legal_ claim to share in the liberties secured by -Magna Carta.[208] - ------ - -Footnote 208: - - In addition to its appearance in the two places mentioned in the text, - the word “freeman” appears in five other chapters, namely 15, 20, 27, - 30, and 39. The three last instances throw no light on the meaning of - the word, since the context of each would be satisfied either with a - broader or with a narrower interpretation. It is different, however, - with chapter 15, where the freemen are necessarily the feudal tenants - of a mesne lord—that is, freeholders; and with chapter 20, where, in - the matter of amercement, the freeman is distinctly contrasted with - the _villanus_. Further, where men of servile birth are clearly meant, - they are described generally as _probi homines_ (_e.g._ in chapters - 20, 29, and 48), and in one place, chapter 26, as _legales homines_. - Chapter 44 mentions _homines_ without any qualification. It seems safe - to infer that the Great Charter never spoke of “freemen” when it meant - to include the ordinary peasantry or villagers. In chapter 39 of the - re-issue of 1217, _liber homo_ is clearly used as synonymous with - “freeholder.” - ------ - -To the question, who had authority to enforce its provisions, the Great -Charter has likewise a clear answer, namely, a select band or -quasi-committee of twenty-five barons. Although the Mayor of London was -chosen among their number, it is clear that no strong support for any -democratic interpretation of Magna Carta can be founded on the choice of -executors; since these formed a distinctly aristocratic body. Yet this -tendency to vest power exclusively in an oligarchy composed of the heads -of great families may have been counteracted, so it is possible to -contend, by the invitation extended by the same chapter to the _communa -totius terrae_ to assist the twenty-five Executors against the King in -the event of his breaking faith. Unfortunately, the extreme vagueness of -the phrase makes it rash in a high degree to build conclusions on such -foundations. It is possible to interpret the words _communa totius -terrae_ as applying merely to “the community of freeholders of the -land,” or even to “the community of barons of the land,” as well as to -“the community of all the estates (including churchmen, merchants, and -commons) of the land,” as is usually done on no authority save -conjecture. Every body of men was known in the thirteenth century as a -_communa_; a word of exceedingly loose connotation. - -So far, our investigations by no means prove that the equality of all -classes, or the equal participation by all in the privileges of the -Charter, was an ideal, consciously or unconsciously, held by the leaders -of the revolt against King John. Magna Carta itself contains evidences -which point the other way, namely, to the existence of class -legislation. At the beginning and end of the Charter, clauses are -carefully inserted to secure to the Church its “freedom” and privileges; -churchmen, in their special interests, must be safeguarded, whoever else -may suffer. “Benefit of clergy,” thus secured, implies the very opposite -of “equality before the law.” Other interests also receive separate and -privileged treatment. Many, perhaps most, of the chapters have no value -except to landowners; a few affect tradesmen and townsmen exclusively, -while chapters 20 to 22 adopt distinct sets of rules for the amercement -of the ordinary freeman, the churchman, and the earl or baron -respectively—an anticipation, almost, of the later division into the -three estates of the realm—commons, clergy, and lords temporal. A -careful distinction is occasionally made (for example, in chapter 20) -between the freeman and the villein, and the latter (as will be proved -later on) was carefully excluded from many of the benefits conferred on -others by Magna Carta. In this connection, it is interesting to consider -how each separate class would have been affected if John’s promises had -been loyally kept. - -(1) _The Feudal Aristocracy._ Even a casual glance at the clauses of the -Great Charter shows how prominently abuses of feudal rights and -obligations bulked in the eyes of its promoters. Provisions of this type -must be considered chiefly as concessions to the feudal -aristocracy—although it is true that the relief primarily intended for -them indirectly benefited other classes as well. - -(2) _Churchmen._ The position of the Church is easily understood when we -neglect the privileges enjoyed by its great men _quâ_ barons rather than -_quâ_ prelates. The special Church clauses found no place whatsoever in -the Articles of the Barons, but bear every appearance of having been -tacked on as an after-thought, due probably to the influence of Stephen -Langton.[209] Further, they are mainly confirmatory of the separate -Charter already twice granted within the few preceding months. The -National Church indeed, with all its patriotism, had been careful to -secure its own selfish advantage before the political crisis arrived. - ------ - -Footnote 209: - - Cf. _supra_, p. 50. - ------ - -(3) _Tenants of Mesne Lords._ When raising troops with the object of -compelling John to grant Magna Carta by parade of armed might, the -barons were perforce obliged to rely on the loyal support of their own -freeholders. It was essential that the knights and others who held under -them should be ready to fight for their mesne lords rather than for the -King their lord paramount. It was thus absolutely necessary that these -under-tenants should receive some recognition of their claims in the -provisions of the final settlement. Concessions conceived in their -favour are contained in two clauses (couched apparently in no specially -generous spirit), namely, chapters 15 and 60. The former limits the -number of occasions on which aids might be extorted from sub-tenants by -their mesne lords to the same three as were recognized in the case of -the Crown. Less than this the barons could scarcely have granted. -Chapter 60 provides generally, in vague words, that all the customs and -liberties which John agrees to observe towards his vassals shall be also -observed by mesne lords, whether prelates or laymen, towards their -sub-vassals. This provision has met with a chorus of applause from -modern writers. Prof. Prothero declares[210] that “the sub-tenant was in -all cases as scrupulously protected as the tenant-in-chief.” Dr. Hannis -Taylor[211] is even more enthusiastic. “Animated by a broad spirit of -generous patriotism, the barons stipulated in the treaty that every -limitation imposed for their protection upon the feudal rights of the -king should also be imposed upon their rights as mesne lords in favour -of the under-tenants who held of them.”[212] It must, however, be -remembered that a vague general clause affords less protection than a -definite specific privilege; and that in a rude age such a general -declaration of principle might readily be infringed when occasion arose. -The barons were compelled to do something, or to pretend to do -something, for their under-tenants. Apparently they did as little as -they, with safety or decency, could. - ------ - -Footnote 210: - - _S. de Montfort_, 17. - -Footnote 211: - - _English Constitution_, I. 383. - -Footnote 212: - - Bishop Stubbs, Preface to _W. Coventry_, II. lxxii., represents the - barons, in their fervour for abstract law, as actually supporting - their own vassals against themselves: “the barons of Runnymede guard - the people against themselves as well as against the common tyrant.” - ------ - -(4) Something was also done for the _merchant and trading classes_, but, -when we subtract what has been read into the Charter by democratic -enthusiasts of later ages, not so much as might reasonably be expected -in a truly national document. The existing privileges of the great city -of London were confirmed, without specification, in the Articles of the -Barons; and some slight reforms in favour of its citizens (not too -definitely worded) were then added. An attentive examination seems to -suggest, however, that these privileges were carefully refined away when -the Articles were reduced to their final form in Magna Carta. The right -to tallage London and other towns was carefully reserved to the Crown, -while the rights of free trading granted to foreigners were clearly -inconsistent with the policy of monopoly and protection dear to the -hearts of the Londoners. A mere confirmation to the citizens of existing -customs, already bought and paid for at a great price, seems but a poor -return for the support given by them to the movement of insurrection at -a critical moment when John was bidding high on the opposite side, and -when their adherence was sufficient to turn the scale. The marvel is -that so little was done for them.[213] - ------ - -Footnote 213: - - For details, see _infra_ under cc. 12, 13, 35, and 41. It is - instructive to compare these chapters with the corresponding - provisions of the Articles of the Barons (viz. articles 32, 12, and - 31). The alterations (though slight) seem to show that some new - influence affecting only the later document was inimical to the towns. - ------ - -(5) The relation of the _villein_ to the benefits of the Charter has -been hotly discussed. Coke claims for him, in regard to the important -provisions of chapter 39 at least, that he must be regarded as a _liber -homo_, and therefore as a full participant in all the advantages of the -clause.[214] This contention is not well founded. Even admitting the -relativity of the word _liber_ in the thirteenth century, and admitting -also that the villein performed some of the duties, if he enjoyed none -of the rights of the free-born, still the formal description _liber -homo_, when used in a feudal charter, cannot be stretched to cover those -useful manorial chattels that had no recognized place in the feudal -scheme of society or in the political constitution of England, however -necessary they might be in the scheme of the particular manor to the -soil of which they were attached. - ------ - -Footnote 214: - - See Coke, _Second Institute_, p. 45, “for they are free against all - men, saving against their lord.” - ------ - -Even if we exclude the villein from the general benefits of the grant, -it may be, and has been, maintained that some few privileges were -insured to him in his own name. One clause at least is specially framed -for his protection. The villein, so it is provided in chapter 21, must -not be so cruelly amerced as to leave him utterly destitute; his plough -and its equipment must be saved to him. Such concessions, however, are -quite consistent with a denial of all _political_ rights, and even of -all _civil_ rights, as these are understood in a modern age. The Crown -and the magnates, so it may be urged, were only consulting their own -interests when they left the villein the means to carry on his farming -operations, and so to pay off the balance of his debts in the future. -The closeness of his bond to the lord of his manor made it impossible to -crush the one without slightly injuring the other. The villein was -protected, not as the acknowledged subject of legal rights, but because -he formed a valuable asset of his lord. This attitude is illustrated by -a somewhat peculiar expression used in chapter 4, which prohibited -injury to the estate of a ward by “waste of men or things.” For a -guardian to raise a villein to the status of a freeman was to benefit -the enfranchised peasant at the expense of his young master.[215] - ------ - -Footnote 215: - - Cf. under c. 4 _infra_. - ------ - -Other clauses both of John’s Charter and of the various re-issues show -scrupulous care to avoid infringing the rights of property enjoyed by -manorial lords over their villeins. The King could not amerce other -people’s villeins harshly, although those on his own farms might be -amerced at his discretion. Chapter 16, while carefully prohibiting any -arbitrary increase of service from freehold property, leaves by -inference all villein holdings unprotected. Then the “farms” or rents of -ancient demesne might be arbitrarily raised by the Crown,[216] and -tallages might be arbitrarily taken (measures likely to press hardly on -the villein class). The villein was deliberately left exposed to the -worst forms of purveyance, from which chapters 28 and 30 rescued his -betters. The horses and implements of the _villanus_ were still at the -mercy of the Crown’s purveyors. The re-issue of 1217 confirms this view; -while demesne waggons were protected, those of villeins were left -exposed.[217] Again, the chapter which takes the place of the famous -chapter 39 of 1215[218] makes it clear that lands held in villeinage are -not to be protected from arbitrary disseisin or dispossession. The -villein was left by the common law merely a tenant-at-will—subject to -arbitrary ejectment by his lord—whatever meagre measure of protection he -might obtain under the “custom of the manor” as interpreted by the court -of the lord who oppressed him. - ------ - -Footnote 216: - - See under c. 25 _infra_. - -Footnote 217: - - See chapter 26 of 1217. - -Footnote 218: - - See chapter 35 of 1217. - -Even if it were possible to neglect the significance of any one of these -somewhat trivial points, when all of them are placed side by side their -meaning is clear. If the bulk of the English peasantry were protected at -all by Magna Carta that was merely because they formed valuable assets -of their lords. The Charter viewed them as "villeins regardant"—as -chattels attached to a manor, not as members of an English -commonwealth.[219] - ------ - -Footnote 219: - - Dr. Stubbs takes an entirely different view. While admitting that - there is “so little notice of the villeins in the charter,” he - explains the omission apparently on two distinct grounds, (1) that - they had fewer grievances to redress than members of other classes, - and (2) that they participated in all the grants from which they were - not specially excluded. “It was not that they had no spokesman, but - that they were free from the more pressing grievances, and benefited - from every general provision.” Preface to _W. Coventry_, II., lxxiii. - ------ - -The general conclusion to be derived from this survey is that, while -much praise may be due to the baronial leaders for their comparatively -liberal interest in the rights of others, they are scarcely entitled to -the excessive laudation they have sometimes received. The rude -beginnings of many features which have since come into prominence in -English institutions (such as the conceptions of patriotism and -nationality and the principles of equality before the law and the tender -regard for the rights of the humble) may possibly be found in the germ -in some parts of the completed Charter; but the Articles of the Barons -were what their name implies, a baronial manifesto, seeking chiefly to -redress the private grievances of the promoters, and mainly selfish in -motive. - -Yet, when all deductions have been made (and it has seemed necessary to -do this with emphasis in order to redress the false balance created by -the exaggerations of enthusiasts), the Great Charter still stands out as -a prominent landmark in the sequence of events which have led, in an -unbroken chain, to the consolidation of the English nation, and to the -establishment of a free and constitutional form of polity upon a basis -so enduring that, after more than eight centuries of growth, it still -retains the vigour and the buoyancy of youth. - - IV. Magna Carta: an Estimate of its Value. - -No evidence survives to show that the men of John’s reign placed any -excessive or exaggerated importance on the Great Charter; but, without a -break since then, the estimate of its worth steadily increased until it -came to be regarded almost as a fetish among English lawyers and -historians. No estimate of its value can be too high, and no words too -emphatic or glowing to satisfy its votaries. In many a time of national -crisis, Magna Carta has been confidently appealed to as a fundamental -law too sacred to be altered—as a talisman containing some magic spell, -capable of averting national calamity. - -Are these estimates of its value justified by facts, or are they gross -exaggerations? Did it really create an epoch in English history? If so, -wherein did its importance exactly lie? - -The numerous factors which contributed towards the worth of Magna Carta -may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its -intrinsic value depends on the nature of its own provisions. The reforms -demanded by the barons and granted by this Charter were just and -moderate. The avoidance of all extremes tended towards a permanent -settlement, since moderation both gains and keeps adherents. Its aims -were practical as well as moderate; the language in which they were -framed, clear and straightforward. A high authority has described the -Charter as “an intensely practical document.”[220] This _practicality_ -is an essentially English characteristic, and strikes the key-note of -almost every great movement for reform which has held a permanent place -in English history. Closely connected with this feature is another—the -essentially _legal_ nature of the whole. As Magna Carta was rarely -absent from the minds of subsequent opponents of despotism, a practical -and legal direction was thus given to the efforts of Englishmen in many -ages.[221] Therein lies another English characteristic. While democratic -enthusiasts in France and America have often sought to found their -rights and liberties on a lofty but unstable basis of philosophical -theory embodied in Declarations of Rights; Englishmen have occupied -lower but surer ground, aiming at practical remedies for actual wrongs, -rather than enunciating theoretical platitudes with no realities to -correspond. - ------ - -Footnote 220: - - Prof. F. W. Maitland, _Social England_, I., 409. - -Footnote 221: - - Cf. Gneist, _Const. Hist._, Chapter XVIII.: “By Magna Carta English - history irrevocably took the direction of securing constitutional - liberty by administrative law.” - ------ - -Another intrinsic merit of the Charter was that it made definite what -had been vague before. Definition is a valuable protection for the weak -against the strong; whereas vagueness increases the powers of the tyrant -who can interpret while he enforces the law. Misty rights were now -reduced to a tangible form, and could no longer be broken with so great -impunity. Magna Carta contained no crude innovations, and confirmed many -principles whose value was enhanced by their antiquity. King John, in -recognising parts of the old Anglo-Saxon customary law, put himself in -touch with national traditions and the past history of the nation. - -Further, the nature of the provisions bears witness to the broad basis -on which the settlement was intended to be built. The Charter, -notwithstanding the prominence given to redress of feudal grievances, -redressed other grievances as well. In this, the influence of the Church -and notably of its Primate, can be traced. Some little attention was -given to the rights of the under-tenants also, and even to those of the -merchants, while the villein and the alien were not left entirely -unprotected. Thus the settlement contained in the Charter had a broad -basis in the affection of all classes. - -(2) Part of the value of Magna Carta may be traced to extrinsic causes; -to the circumstances which gave it birth—to its vivid historical -setting. The importance of each one of its provisions is emphasized by -the object-lessons which accompanied its inauguration. The whole of -Christendom was amazed by the spectacle of the King of a great nation -obliged to surrender at discretion to his own subjects, and that, too, -after he had scornfully rejected all suggestions of a compromise. The -fact that John was compelled to accept the Charter meant a loss of royal -prestige, and also great encouragement to future rebels. What once had -happened, might happen again; and the humiliation of the King was -stamped as a powerful image on the minds of future generations. - -Such considerations almost justify enthusiasts, who hold that the -granting of Magna Carta was the turning-point in English history. -Henceforward it was more difficult for the king to invade the rights of -others. Where previously the vagueness of the law lent itself to -evasion, its clear re-statement and ratification in 1215 pinned down the -king to a definite issue. He could no longer plead that he sinned in -ignorance; he must either keep the law, or openly defy it—no middle -course was possible. - -When all this has been said, it may still be doubted whether the belief -of enthusiasts in the excessive importance of Magna Carta has been fully -justified. Many other triumphs, almost equally important, have been won -in the cause of liberty, and under circumstances almost equally notable; -and many statutes have been passed embodying these. Why then should -Magna Carta be invariably extolled as the palladium of English -liberties? Is not, when all is said, the extreme merit attributed to it -mainly of a sentimental or imaginative nature? Such questions must be -answered partly in the affirmative. Much of its value _does_ depend on -sentiment. Yet all government is, in a sense, founded upon -sentiment—sometimes affection, sometimes fear. Psychological -considerations are all-powerful in the practical affairs of life. -Intangible and even unreal phenomena have played an important part in -the history of every nation. The tie that binds the British colonies at -the present day to the Mother Country is largely one of sentiment; yet -the troopers from Canada and New Zealand who responded to the call of -Britain in her hour of need produced practical results of an obvious -nature. The element of sentiment in politics can never be ignored. - -It is no disparagement to Magna Carta, then, to confess that part of its -power has been read into it by later generations, and lies in the halo, -almost of romance, which has gradually gathered round it in the course -of centuries. It became a battle cry for future ages, a banner, a -rallying point, a stimulus to the imagination. For a king, thereafter, -openly to infringe the promises contained in the Great Charter, was to -challenge the bitterness of public opinion—to put himself palpably in -the wrong. For an aggrieved man, however humble, to base his rights upon -its terms was to enlist the warm sympathy of all. Time and again, from -the Barons’ War against Henry III. to the days of John Hampden and -Oliver Cromwell, the possibility of appealing to the words of Magna -Carta has afforded a practical ground for opposition; an easily -intelligible principle to fight for; a fortified position to hold -against the enemies of the national freedom. The exact way in which this -particular document—dry as its details at first sight may seem—has, when -considered as a whole, fired the popular imagination, is difficult to -determine. Such a task lies rather within the sphere of the student of -psychology than of the student of history, as usually conceived. However -difficult it may be to explain this phenomenon, there is no doubt of its -existence. The importance of the Great Charter, originally flowing both -from the intrinsic and from the extrinsic features already described, -has greatly increased, as traditions, associations, and aspirations have -clustered more thickly round it. These have augmented in each succeeding -age the reverence in which it has been held, and have made ever more -secure its hold upon the popular imagination. - -Thus Magna Carta, in addition to its legal value, has a political value -of an equally emphatic kind. Apart from and beyond the salutary effect -of the many useful laws it contained, its moral influence has -contributed to a marked advance of the national spirit, and therefore of -the national liberties. A few of the aspects of this advance deserve to -be emphasized. The King, by granting the Charter in solemn form, -admitted that he was not an absolute ruler—admitted that he had a master -over him in the laws which he had often violated, but which he now swore -to obey. Magna Carta has thus been truly said to enunciate and -inaugurate “the reign of law” or “the rule of law” in the phrase made -famous by Professor Dicey.[222] - ------ - -Footnote 222: - - A. V. Dicey, _Law of the Constitution_, Part II. - ------ - -It marks also the commencement of a new grouping of political forces in -England; indeed without such a rearrangement the winning of the Charter -would have been impossible. Throughout the reign of Richard I. the old -tacit understanding between the king and the lower classes had been -endangered by the heavy drain of taxation; but the actual break-up of -the old alliance only came in the crisis of John’s reign. Henceforward -can be traced a gradual change in the balance of parties in the -commonwealth. No longer are Crown and people united, in the name of law -and order, against the baronage, standing for feudal disintegration. The -mass of humble freemen and the Church are for the moment in league with -the barons, in the name of law and order, against the Crown, recently -become the chief law-breaker. - -The possibility of the existence of such an alliance, even on a -temporary basis, involved the adoption by its chief members of a new -baronial policy. Hitherto each great baron had aimed at his own -independence or aggrandisement, striving on the one hand to gain new -franchises for himself, or to widen the scope of those he already had, -and on the other to weaken the king and to keep him outside these -franchises. This policy, which succeeded both in France and in Scotland, -had before John’s reign already failed signally in England, and the -English barons now, on the whole, came to admit the hopelessness of -renewing the struggle for feudal independence. They substituted for this -ideal of an earlier age a more progressive policy. The king, whose -interference they could no longer hope completely to shake off, must at -least be taught to interfere justly and according to rule; he must walk -only by law and custom, not by the caprices of his evil heart. The -barons sought henceforward, to control the royal power they could not -exclude; they desired some determining share in the national councils, -if they could no longer hope to create little nations of their own -within the four corners of their fiefs. Magna Carta was the fruit of -this new policy. - -It has been often repeated, and with truth, that the Great Charter marks -also a stage in the growth of national unity or nationality. Here, -however, it is necessary to guard against exaggeration. It is merely one -movement in a process, rather than a final achievement. We must somewhat -discount, while still agreeing in the main with, statements which -declare the Charter to be “the first documentary proof of the existence -of a united English nation”; or with the often-quoted words of Dr. -Stubbs, that “The Great Charter is the first great public act of the -nation, after it has realised its own identity.”[223] - ------ - -Footnote 223: - - _Const. Hist._, I. 571. Cf. _Ibid._, I. 583, “The act of the united - nation, the church, the barons, and the commons, for the first time - thoroughly at one.” Who were “the commons” in 1215? The question is a - difficult one to answer. Cf. also Mr. Prothero, _Simon de Montfort_, - 18, “The spirit of nationality of which the chief portion of Magna - Carta was at once the product and the seal.” - ------ - -A united English nation, whether conscious or unconscious of its -identity, cannot be said to have existed in 1215, except under several -qualifications. The conception of “nationality,” in the modern sense, is -of comparatively recent origin, and requires that the lower as well as -the higher classes should be comprehended within its bounds. Further, -the coalition which wrested the Charter from the royal tyrant was -essentially of a temporary nature, and quickly fell to pieces again. -Even while the alliance continued, the interests of the various classes, -as has been already shown, were far from identical. Political rights -were treated as the monopoly of the few (as is evidenced by the -retrograde provisions of chapter 14 for the composition of the _Commune -concilium_); and civil rights were far from universally distributed. The -leaders of the “national” movement certainly gave no _political_ rights -to the despised villeins, who comprised more than three quarters of the -entire population of England; while their _civil_ rights were almost -completely ignored in the provisions of the Charter. - -Magna Carta undoubtedly marked one step, an important step, in the -process by which England became a nation; but that step was neither the -first nor yet the final one. - -V. Magna Carta. Its defects. - -The great weakness of the Charter lay in this, that no adequate sanction -was attached to it, in order to ensure the enforcement of its -provisions. The only expedient suggested for compelling the King to keep -his promises was of a nature at once clumsy and revolutionary, and -entirely worthless considered as a working scheme of government. Indeed, -it was devised not so much to prevent the King from breaking faith as to -punish him when he had done so. In other words, no proper constitutional -machinery was invented to turn the legal theories of Magna Carta into -practical realities. In its absence, we find what has sometimes been -described as “a right of legalized rebellion” conferred on an executive -committee of twenty-five of the King’s enemies. - -This is the chief defect, but not the only one. Many minor faults and -omissions may be traced to a similar root. All the great constitutional -principles are in reality conspicuously absent. The importance of a -council or embryo parliament, constituted on truly national lines (of -which some glimmerings can be traced in 1213); the right of such a body -to influence the King’s policy in normal times as well as in times of -crisis; the doctrine of ministerial responsibility (already dimly -foreshadowed in the reign of Richard); the need of distinguishing the -various functions of government, legislative, judicial, and -administrative—all these cardinal principles are completely ignored by -the Charter. Not one of its many clauses affords evidence that the -statesmen of the day had any conception, even of a rudimentary nature, -of the principles of political science. - -Only five of the sixty-three chapters can be said to bear directly on -the subject of constitutional (as opposed to purely legal) machinery, -and most of these do so only incidentally, namely, chapters 14, 21, 39, -61, and 62. - -The _Commune Concilium_ is indeed mentioned; and its composition and -mode of summons are clearly defined in chapter 14. But it must be -remembered that this chapter appears as a mere afterthought,—as an -appendix to chapter 12; its incidental nature is proved by the fact that -it has no counterpart in the Articles of the Barons. The rebel magnates -were vitally interested in the narrow question of scutage, not in the -wide possibilities involved in the existence of a national council. The -_Commune Concilium_ was dragged into the Charter, not on its own merits, -but merely as a convenient method of preventing the arbitrary increase -of feudal exactions. That this was so, is further proved by the fact -that both parties were content to omit all mention of the Council from -the re-issue of 1217, when an alternative way of checking the arbitrary -increase of scutage had been devised. - -If the framers of John’s Magna Carta had possessed any grasp of -constitutional principles, they would gladly have seized the opportunity -afforded them by the mention, however incidentally, of the Common -Council, in chapters 12 and 14, in order to define most carefully the -powers which they claimed for it. On the contrary, no list of its -functions is drawn up; nor do the words of the Charter contain anything -to suggest that it exercised any powers other than that of consenting to -scutages and aids. Not a word is said of any right inherent in the -Council to a share in legislation, to control or even to advise the -Executive, or to concur in choosing the great ministers of the Crown. -Neither deliberative, administrative, nor legislative powers are secured -to it, while its control over taxation is strictly limited to the right -to veto scutages and aids—that is say, it only extends over that very -narrow class of exactions which affected the military tenants of the -Crown. It is true that chapters 21 and 39 may possibly be read -confirming the _judicial_ power of the Council in a certain limited -group of cases. Earls and barons are not to be amerced except by their -peers (_per pares suos_), and the natural place for these “equals” of a -Crown vassal to assemble for this purpose would be the _Commune -Concilium_. This, however, is merely matter of inference; chapter 21 -makes no mention of the Council; and it is equally possible that its -requirements would be met by the presence among the officials of the -Exchequer of a few Crown tenants.[224] Similar reasoning applies to the -provisions of chapter 39 (protecting the persons and property of -freemen, by insisting on the necessity of a “trial by peers”) so far as -they affect earls and barons. - ------ - -Footnote 224: - - This is the view of Mr. L. O. Pike, _House of Lords_, 204. - ------ - -It is clear that the leaders of the opposition in 1215 did not consider -the constitutional powers of a national Parliament the best safeguard of -the rights and liberties theoretically guaranteed by the Charter. Only -one practical or constitutional expedient seems to have occurred to -them, namely, that embodied in chapter 61. Twenty-five barons were to be -appointed by their fellow-barons to act as Executors of the Charter; but -their functions were apparently only to be called into play in the event -of King John or his officers breaking any of the provisions of the -Charter. If this occurred, intimation might be made to a smaller -sub-committee of four, chosen from the twenty-five, and these four would -straightway ask the King to redress the grievance complained of. If this -was not done within forty days, John granted to the Committee of -twenty-five, assisted by “the whole community of the realm,” the right -practically to make war upon him. He conferred on them in the most -explicit terms full power “to distrain and distress us in all possible -ways, by seizing our castles, lands, possessions, and in any other way -they can, until the grievances are redressed according to their -pleasure.” - -Such a provision can hardly be described as constitutional, since it is -rather the negation of all constitutional principles—nothing more nor -less than legalized rebellion. Provision is made not for the orderly -conduct of government, but rather to provide an organization for making -war upon the king in certain abnormal circumstances which are defined. -Such a scheme was clearly impracticable, and the fact that it -recommended itself as a possible expedient to the barons speaks -eloquently of their complete ignorance of the most elementary principles -of the science of government. Civil war levied on a warrant granted -beforehand by the king is treated as a constitutional expedient for the -redress of particular grievances as they arise.[225] - ------ - -Footnote 225: - - Details of this scheme, and a fuller discussion of its defects will be - found _infra_ under chapter 61. - ------ - -The same inability to devise practical remedies for specific evils may -be traced in several minor clauses of the Charter.[226] When John -promised in chapter 16 that no one should be compelled to do greater -service than had been formerly due from any holding, no attempt was -made, in case of dispute, to provide constitutional machinery to define -what such service actually was; while chapter 45, providing that only -men who knew the law, and meant to keep it, should be made justiciars, -sheriffs or bailiffs, laid down no criterion of fitness, and contained -no suggestion of any way in which so laudable an ambition might be -realized. - ------ - -Footnote 226: - - Magna Carta has been described, in words already quoted with approval, - as “an intensely practical document,” Professor Maitland, _Social - England_, I. 409; but this requires some qualification. If it was - practical in preferring the condemnation of definite practical - grievances to the enunciation of philosophical principles, it was - unpractical in omitting to provide machinery for giving effect to its - provisions. - ------ - -Thoughtful and statesmanlike as were the provisions of Magna Carta, and -wide as was the ground they covered, many important omissions can be -pointed out. Some crucial questions seem not to have been foreseen, and -others, for example the liability to foreign service, were deliberately -shelved[227]—thus leaving room for future misunderstandings. The praise, -justly earned, by its framers for the care and precision with which they -defined a long list of the more crying abuses, must be qualified in view -of the failure to provide procedure to prevent their recurrence. Men had -not yet learned the force of the maxim, so closely identified with all -later reform movements in England, that a right is valueless without an -appropriate remedy to enforce it.[228] - ------ - -Footnote 227: - - Except in so far as affected by cc. 12 and 16. - -Footnote 228: - - Mr. Prothero estimates much more highly the constitutional value of - Magna Carta: "The constitutional struggles of the following - half-century would to a great extent have been anticipated had it - retained its original form."—_Simon de Montfort_, 14. - ------ - - VI. Magna Carta: Value of Traditional Interpretations. - -The Great Charter has formed a favourite theme for orators and -politicians in all periods of English history, partly because of its -intrinsic merit, partly because of the dramatic background of its -historical setting, but chiefly because it has been, from the time of -its inception down to the present day, a rallying cry and a protecting -bulwark in every crisis which threatened to endanger the national -liberties. - -The uses to which it has been put, and the interpretations which have -been read into it, are so numerous and so varied, that they would -require a separate treatise to do them justice. Not only was Magna -Carta, as will be shown in some detail in a later section, frequently -reissued and confirmed, but its provisions have been asserted and -re-asserted time after time, in Parliament, in the courts of justice, -and in institutional works on jurisprudence. Its influence has thus been -threefold; and any attempt to explain its bearing on the subsequent -history of English liberties would require to distinguish between these -three separate and equally important aspects. (1) It has supplied a -powerful instrument in the hands of politicians, especially of the -leaders of the House of Commons in the seventeenth century, when waging -the battle of constitutional freedom against the Stewart dynasty. (2) -Its legal aspect has been as important as its political one, since it -has been cited in innumerable litigations before the various courts of -law. In the course of legal debate and of judicial opinions, it has been -the subject of many and conflicting interpretations, some of them -accurate and some erroneous. (3) Finally, it has been discussed in many -commentaries either exclusively devoted to its elucidation or else -treating of it incidentally in the course of general expositions of the -law of England. - -An exhaustive search throughout the seven centuries which separate us -from 1215 for instances in which Magna Carta has appeared in the arena -of politics, on the judicial bench, or in legal treatises would prove a -gigantic task, but could hardly fail to illustrate the inestimable -services it has rendered to English liberties. - -In the light of the important part which Magna Carta has thus played -throughout many centuries of English history, it need not excite wonder -that the estimation in which it was held, high as that was from a very -early period, has gradually increased, until it has overstepped all due -bounds, and has become utterly exaggerated and distorted. While some -sympathy may be felt for such extravagant admiration, not unnatural in -the circumstances, it is clearly the duty of the commentator to correct -false impressions. It is well to point out that no document of human -origin can be really worthy of the excessive eulogy of which the Great -Charter has been made the subject; unfortunately, it has more frequently -been described in terms of inflated rhetoric than of sober methodical -analysis.[229] - ------ - -Footnote 229: - - Extravagant estimates of its value will readily occur to anyone - acquainted with the literature of the subject. For example, Sir James - Mackintosh (_History of England_, I. 218, edn. of 1853) declares that - we are “bound to speak with reverential gratitude of the authors of - the Great Charter. To have produced it, to have preserved it, to have - matured it, constitute the immortal claim of England upon the esteem - of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, - etc., etc.” Such uncritical eulogy contributes nothing to the - understanding of Magna Carta. - -Nor has this tendency to unthinking adulation been entirely confined to -popular writers; judges and institutional authors, even Sir Edward Coke -himself, have too often lost the faculty of critical and exact -scholarship when confronted with the virtues of the Great Charter. There -is scarcely one great principle of the English constitution of the -present day, or indeed of any constitution in any day, calculated to -secure national liberties, or otherwise to win the esteem of mankind, -which has not been read by commentators into the provisions of Magna -Carta. In particular, the political leaders of the seventeenth and -eighteenth centuries discovered among its chapters every important -reform which they desired to introduce into England, thereby disguising -the revolutionary nature of many of their projects by dressing them in -the garb of the past. - -Many instances of the constitutional principles and institutions, with -the origin of which successive commentators have erroneously credited -the Great Charter, will be expounded under the appropriate chapters of -the sequel. It will be sufficient in the meantime to enumerate trial by -jury; the right of every prisoner to obtain a writ of Habeas Corpus; the -abolition of all arbitrary imprisonment at the king’s command; the -complete prohibition of monopolies; the enunciation of a close and -indissoluble tie between taxation and representation; equality of all -and sundry before the law; a matured conception of nationality, -embracing high and low, freeman and villein alike: all these, and more, -have been discovered in various clauses of the Great Charter.[230] - ------ - -Footnote 230: - - Edmund Burke (_Works_, II. 53, edn. of 1837, Boston) credits Magna - Carta with creating the House of Commons! “Magna Charta, if it did not - give us originally the House of Commons, gave us at least a House of - Commons of weight and consequence.” As will be shown in the sequel, - chapter 14 of the Great Charter (the only one bearing on the subject) - is in reality of a reactionary nature, confining the right of - attendance at the _commune concilium_ to the freeholders of the Crown - and departing from the precedent of two years earlier, which - introduced representatives of each county. - -If these tendencies to excessive and sometimes ignorant praise have been -unfortunate from one point of view, they have been most fortunate from -another. The legal and political aspects must be sharply contrasted. On -the one hand, the vague and inaccurate words used in speaking of the -Charter even by great lawyers, such as Coke (not necessarily equally -great as historians, living as they did in an age when the science of -history was unknown), have not only obscured the bearing of many -chapters, but have done a distinct injury to the study of the -development of English law. On the other hand, as the mistakes made in -commenting on the Charter have been almost entirely due to a laudable -desire to extend as widely as possible its provisions in favour of -individual and national liberties, and to magnify generally its -importance; the service these very errors have done to the cause of -constitutional progress is measureless. If political bias has coloured -the interpretation placed on many of the most famous clauses, the -ensuing benefit has accrued not to any one narrow party or faction, not -to any separate class or interest, but rather to the entire body politic -and to the cause of national progress in its widest and best -developments. - -Thus the historian of Magna Carta, while bound to correct estimates now -seen to be erroneous in the light of modern research, cannot afford to -despise or under-estimate the value of traditional interpretations. The -meanings which have been read into it by the learned men of later ages, -and which have been acquiesced in by public opinion of the day, have had -an equally potent effect whether they were historically well founded or -ill founded. The stigma of being banned by the Great Charter was usually -too great a burden for any institution or line of policy to bear. If the -belief prevailed that an abuse complained of was really prohibited by -Magna Carta, the most arbitrary king had difficulty in finding judges -who would declare it legal, or trustworthy ministers who would persevere -in enforcing it. The prevalence of such a belief was the main point; -whether it was well or ill founded was, for political purposes, quite -immaterial. The greatness of Magna Carta lies not so much in what it was -to its framers in 1215, as in what it afterwards became to the political -leaders, to the judges and lawyers, and to the entire mass of the men of -England in later ages. - - VII. Magna Carta. Its traditional relation to Trial by Jury. - -One persistent error, universally adopted for many centuries, and even -now hard to dispel, is that the Great Charter granted or guaranteed -trial by jury.[231] This belief, however, which has endured so long and -played so prominent a part in political theory, is now held by all -competent authorities to be entirely unfounded. Not one of the three -forms of a modern jury trial had taken definite shape in 1215, although -the root principle from which all three subsequently grew had been in -constant use since the Norman Conquest. Henry II., indeed, had done much -towards developing existing tendencies in the direction of all three of -its forms, namely, of the grand jury, the petty criminal jury, and the -jury of civil pleas. - ------ - -Footnote 231: - - The source of this error was the identification of the _judicium - parium_ of chapter 39 with jury trial. This mistake is fully refuted - _infra_ under that chapter. - ------ - -Magna Carta, embodying as it does many of the innovations of Henry of -Anjou, necessarily contains indications of the existence of these -tendencies. Yet, as these occur incidentally in various provisions of -unconnected chapters, and as they cannot readily be recognized, on -account of the technical language in which they are usually couched and -the apparently trivial points of legal procedure to which they relate, -it seems well to preface the separate consideration of each of them -under its appropriate chapter, by a short account of their mutual -relations. This will conduce to a clear understanding alike of trial by -jury and of the Great Charter itself. - -Jury trial in each of the three forms in which it is known to modern -English law is able to trace an unbroken pedigree (though by three -distinct lines of descent) from the same ancestor, namely, from that -principle known as _recognitio_ or _inquisitio_, which was introduced -into England by the Normans, and was simply the practice whereby the -Crown obtained information on local affairs from the sworn testimony of -local men. While thus postulating a foreign origin for this “palladium -of English liberties,” we are afforded consolation by the remembrance of -a fact which some modern authorities are too much inclined to neglect, -namely, that the soil was prepared by Anglo-Saxon labour for its -planting.[232] - ------ - -Footnote 232: - - The theory now generally accepted that the origin of trial by jury - must be sought in procedure introduced by the Norman Dukes and not in - any form of popular Anglo-Saxon institutions is ably maintained by - Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer, - _Evidence_, p. 7. Undoubtedly their conclusions are in the main - correct; but in their natural desire to remove misconceptions, they - are possibly guilty of some slight exaggeration. Trial by jury may - have had more than one root, and a full appreciation of the value of - the Norman contribution need not lead to the total neglect of the - Anglo-Saxon one. Accepted conclusions in this respect might profitably - be supplemented by the opinions of Dr. Hannis Taylor, _English - Constitution_, I. 308 and I. 323. - ------ - -The old English institution of the frithborh—the practice of binding -together little groups of neighbours for preservation of the peace—and -the custom of sending representatives of the villages to the Hundred -Courts, had alike accustomed the natives to corporate action and formed -in some sort precedents for what their Norman masters compelled them to -do, namely, to give their evidence on local matters jointly and on oath. -Further, one form of the jury—the jury of accusation—is clearly -foreshadowed (in spite of the complete breach of continuity in the -intervening period) by the directions given to the twelve senior thegns -of each Wapentake by a well-known law of Ethelred. Yet the credit of -establishing the jury system as a fundamental institution in England is -undoubtedly due to the Norman and Angevin kings, although they acted in -their own interests and not in those of their oppressed subjects, and -although they had no clear vision of the ultimate consequences of what -they did. The uses to which the _Inquisitio_ was put by William and his -sons in framing _Domesday Book_, collecting information about existing -laws, and dispensing justice, have already been discussed.[233] - ------ - -Footnote 233: - - See _supra_, pp. 105-6. - ------ - -It was reserved for Henry II. to start the institution on a further -career of development; he it was who thus laid the foundations of the -modern jury system. Strangely enough, he did this not merely in one of -its forms, but in all three of them. - -(1) In re-organizing machinery for the suppression and punishment of -crime by the Assizes of Clarendon and Northampton, he established the -general principle that criminal trials should (in the normal case) begin -with formal indictment of the accused by a representative body of -neighbours sworn to speak the truth.[234] This was merely a systematic -enforcement of one of the many forms of _inquisitio_ already in use; -from that date onwards the practice so established has been followed in -England. Criminal prosecution cannot be begun on mere suspicion or -irresponsible complaints. The jury of accusation (or presentment) may be -said to have been instituted in 1166, and has continued in use ever -since, passing by an unbroken course of development into the grand jury -of the present day.[235] - ------ - -Footnote 234: - - See Pollock and Maitland, I. 131. It was part of Henry’s policy to - substitute indictment by a representative jury for the older appeal by - the wronged individual or his surviving relatives. The older - procedure, however, was not completely abolished though looked upon - with disfavour. Its continuance and also its unpopularity may both be - traced in chapter 54 of Magna Carta. See _infra_. - -Footnote 235: - - Chapter 38 of Magna Carta, according to a plausible interpretation of - an admittedly obscure passage, seems to insist on the necessity of - such an accusation by the jury:—“_non ... sine testibus fidelibus ad - hoc inductis_.” - -(2) By insisting that the ordeal was the only adequate test of an -accused man’s guilt or innocence, Henry unconsciously prepared the way -for a second form of jury. When the fourth Lateran Council in the very -year of Magna Carta forbade priests to countenance ordeal by their -presence or blessing, a death-blow was really dealt to that form of -procedure or “test,” since it depended for its authority on -superstition. A canon of the Church had thus suddenly struck away the -pivot on which Henry had made his entire criminal system to revolve. -Some substitute required urgently to be devised. It was to supply this -that the petty jury (or its rude antecedent) came into existence. The -man who had been publicly accused as _presumably_ guilty by the voice of -his neighbours, was asked if he was willing to stand or fall by a -further and final reference to the oath of a second jury of neighbours. -This second verdict, then, was the new “test” or “law” substituted, if -the accused man agreed, for his old right of proving himself innocent by -the ordeal. By obscure steps, on which those best entitled to speak with -authority are not yet agreed, this jury, giving a second and final -verdict, gradually developed into the criminal jury of twelve, the petty -jury of to-day, the characteristics of which are well known and which -has had so important an influence on the development of constitutional -liberties in England, and even, it is said, on the national character. - -Another expedient of Henry’s invention must have aided the movement in -the direction of the criminal jury, namely, the writ _de odio et atia_ -by applying for which a man “appealed” or accused of a crime might -substitute what was practically a jury’s verdict for the “battle” which -had previously, in the normal case, followed “appeal” as a matter of -course.[236] - ------ - -Footnote 236: - - For fuller details see _infra_ under chapter 36, and _supra_ p. 108. - ------ - -(3) The Civil Jury owes its origin to quite a different set of reforms, -though inaugurated by the same reformer. Among the evil legacies left to -Henry II. from Stephen’s reign, not the least troublesome were the -numerous claims advanced by rival magnates to the various estates and -franchises which had been bestowed with equally lavish hands, but on -different persons, by Matilda and Stephen. Henry realized the urgent -need of giving his realm rest by protecting vested interests and by -introducing a more rational expedient than trial by combat for deciding -between rival claimants to landed estates. Here again he had recourse to -a new development of “inquisition.” In such cases an option was given to -the defendant (the man in possession, the man with a vested interest -which deserved protection), to refer the question at issue to the -verdict of local recognitors, twelve knights or freeholders in this -case, and therefore men of some position. The name “Assize” was, for -reasons to be immediately explained, applied alike to the procedure -itself and to the twelve neighbours who gave the verdict. - -This new expedient, perhaps because it was looked on with suspicion as -an innovation of a violent and revolutionary nature, was applied at -first only to a few special cases, namely, to certain disputes as to -vested interests in land. It was used to settle claims of ultimate -title—the out-and-out ownership of the land—and then it was known as the -Grand Assize; it was also used to settle a few well-defined groups of -pleas of disputed possession, and then it was known as a Petty Assize -(of which there were, however, three distinct and well-known -varieties).[237] - ------ - -Footnote 237: - - These three Petty Assizes are mentioned by name in c. 18 of the Great - Charter, and under that heading the entire subject is more fully - discussed. See _infra_. - ------ - -In these cases, the defendant could escape “battle” and compel the -plaintiff, even against his will, to submit his claim to the verdict of -the recognitors. This new-fangled privilege of the defendant had no -basis in the ancient custom of the land, but depended solely on royal -prerogative. The king, by a high-handed act of power, thus favoured the -defendant, by depriving the claimant of that remedy which was his right -by feudal law, namely, the resort to the legal duel. It was because the -new procedure was thus founded on a royal Ordinance, that the name -“Assize” was applied to it. The _assisa_ was a remedy strictly confined -to four groups of pleas. - -By consent of _both_ parties, however, disputes of almost every -description might be similarly determined; being referred (under -supervision of the king’s judges) to the verdict of local recognitors, -usually twelve in number, who were then known as a _jurata_ (not an -_assisa_, the two being strictly opposed to each other). While the -_assisa_ was narrowly confined to a few types of cases, the _jurata_, -since it favoured neither party, was a flexible remedy capable of -indefinite expansion, and thus soon became the more popular and the more -important of the two. Yet the ancient _assisa_ and the ancient _jurata_, -always closely connected, and resembling each other in most essential -features, can both claim to be ancestors of the modern civil "jury,"—the -name of the more popular institution having survived. Magna Carta, in -providing for the frequent holding of the three Petty Assizes, marked a -stage in the development of the Civil Jury; while, in enforcing the -criminal procedure of Henry Plantagenet, and guarding it from abuse, the -Charter had also a vital bearing on the genesis of the Grand Jury and -the Petty Jury alike. - -These scattered and incidental references to tendencies still vague and -indefinite must not, however, be misread as a reference to the definite -procedure into which at a later date they coalesced: Magna Carta does -not promise “trial by jury” to anyone. - - PART IV. - HISTORICAL SEQUEL TO MAGNA CARTA. - - I. Re-issues and Confirmations of the Great Charter. - -While King John had accepted the reforms contained in Magna Carta -unwillingly and insincerely, the advisers of his son accepted them in -good faith. Three re-issues of the Charter were granted in 1216, in -1217, and in 1225, and these were followed by many confirmations, a full -account of which would involve a complete political and legal history of -England. The scheme of this Historical Introduction is restricted to the -narration of such facts as have a direct bearing on the genesis and -contents of the Charter of John. Yet no account of Magna Carta would be -complete without some notice of the more important alterations contained -in these three re-issues. - -On 28th October, 1216, Henry of Winchester, was crowned at Gloucester -before a small assemblage.[238] The young King took the usual oath as -directed by the Bishop of Bath, and he also performed homage to the -Pope’s representative Gualo, for the King of England was now the vassal -of Rome. At a Council held at Bristol, on 11th November, William -Marshal, Earl of Pembroke, was appointed _Rector regis et regni_; and, -next day, the Charter was re-issued in the King’s name. This was a step -of extreme importance, marking the acceptance by those in power for the -time being of the programme of the baronial opposition. - ------ - -Footnote 238: - - See _Annals of Waverley_, p. 286, and Stubbs, _Const. Hist._, II. 18. - -The Charter in its new form was really a manifesto issued by the -moderate men who rallied round the throne of the young King; it may be -viewed in two aspects, as a declaration by the Regent and his -co-adjutors of the policy on which they accepted office, and as a bid -for the support of the barons who still adhered to the faction of the -French prince. Its issue was, indeed, dictated by the crucial situation -created by the presence in England of Prince Louis of France supported -by a foreign army and by a large faction of the English barons who had -sworn homage to him as their king. It was, therefore, framed in terms -likely to conciliate such of the opposition as were still open to -conciliation. Yet the new Charter could not be a verbatim re-issue of -the old one. Vital alterations were required by the altered -circumstances.[239] It was no longer the expression of a reluctant -consent by the government of the day to the demands of its enemies, but -rather a set of rules deliberately accepted by that government for its -own guidance. The chief tyrant against whom the original provisions had -been directed was now dead, and certain forms of tyranny, it was -confidently hoped, had died with him. Restraints now placed on the -Crown’s prerogatives would only hamper the free action of the men who -framed them, not of their political opponents. The new beneficent -government must not suffer for the sins of the old evil one. The Regent, -while willing to do much for the cause of conciliation, could not afford -to paralyze his own efficiency at a time when foreign invaders were in -possession of one-half of England, from which it would require a supreme -effort to dislodge them. In especial, the Crown, in its urgent need for -money wherewith to pay the wages of its mercenaries, must suffer no -unnecessary restraints upon its powers of taxation. The existing civil -war made it imperative that the government should retain a free hand in -exacting feudal services and in levying scutages. Moderate-minded men -would readily acquiesce in the wisdom of this policy; while it was -useless to modify it in the hope of conciliating the extreme party who -had thrown in their lot irretrievably with Prince Louis. - ------ - -Footnote 239: - - The cause for wonder is rather how few changes required to be made. - “It is, however, by no means the least curious feature of the history, - that so few changes were needed to transform a treaty won at the point - of the sword into a manifesto of peace and sound government.” Stubbs, - _Const. Hist._, II. 21. - ------ - -The Charter of 1216 is, therefore, notable for its omissions. The chief -among these may be arranged under five groups.[240] (1) Restraints -placed in 1215 on the taxing power of the Crown now disappeared. The -chapters which forbade the king to increase the “farms” or fixed rents -of the counties and hundreds, those which defined the king’s relations -with the Jews, and those which restricted the lucrative rights derived -from the rigorous enforcement of the forest laws, were discarded. An -even more important omission was that of the clause which abolished the -Crown’s rights to increase feudal contributions arbitrarily without -consent of the Common Council. - ------ - -Footnote 240: - - This classification takes no account of such alterations as seem to be - merely verbal or inserted to remove ambiguities, _e.g._ upon chapters - 22, 28, and 30 of the original Charter. - ------ - -(2) One clause specially valued by the national Church was also omitted. -John’s grant of liberty of election by the canons of the chapters was -quietly ignored; although the vague declaration that the Church “should -be free” was allowed to remain. - -(3) A great number of provisions of purely temporary interest naturally -disappeared, among them those providing for the disbandment of mercenary -troops and the dismissal from office of obnoxious individuals. Of more -importance was the omission of all reference to the device adopted for -enforcing the original Charter by means of the baronial committee of -twenty-five Executors. - -(4) A number of minor omissions of a miscellaneous nature may be grouped -together; for example, chapter 27, providing that the chattels of every -freeman who died intestate should be divided under the supervision of -the Church; chapter 41, granting freedom to leave the kingdom, and -return, without the king’s consent; chapter 45, by which the Crown -restricted itself in the choice of justiciars and other officers; and -the latter half of chapter 47, relating to the banks of rivers and their -guardians.[241] - ------ - -Footnote 241: - - These alterations show traces of some influence at work hostile to the - national Church. Not only is the promise of canonical election - withdrawn, but the omissions of the clauses regulating intestate - succession and guaranteeing freedom to leave the kingdom (a privilege - highly valued by the clergy) seem to prejudice the interests of - English churchmen. Now the papal legate was an active supporter of the - re-issue of this Charter in 1216; whereas Rome, in the crisis of June, - 1215, had been bitterly opposed to the original grant of Magna Carta. - The inference is that Rome did not protest against these omissions to - the prejudice of the English Church. Why was this? The explanation - probably lies in the divergence of the interests of the national - Church from those of the Church universal. Canonical election, for - example, was nothing to Rome; successive Popes made provision for - their favourites more readily in England by bringing pressure to bear - on the King than on the monks of the various chapters. Henry III. - habitually acted on the omission; creating wide-felt discontent by - filling the English sees partly with his own foreign favourites, and - partly with ecclesiastics nominated by the Roman Curia. The King and - the Pope thus entered into a tacit partnership for their mutual - benefit at the expense of the English national Church. - ------ - -(5) These various alterations implied, incidentally rather than -deliberately, the omission of all mention of such constitutional -machinery as had found a place in the words of John’s Great Charter. The -twenty-five Executors fell with the other temporary provisions; while -chapter 14, which defined the composition and mode of summons of the -_Commune Concilium_, was omitted as a matter of course, along with -chapter 12, to which it had merely formed a supplement. It was -apparently thought unnecessary to make any mention of the Council, and -this attitude may be explained partly on the ground that the framers of -the new deed took for granted its continued existence in the future as -in the past, and partly by the consideration that its vital importance -as a constitutional safeguard had not yet been realized. Chapter 14 of -1215, to which much importance is invariably attached by modern writers, -probably held quite a subordinate place in the minds of its framers and -was abandoned altogether in 1216, never to be replaced.[242] - ------ - -Footnote 242: - - It is notable that it failed to find a place in the Charter of 1225, - which was paid for by the nation at the price of one-fifteenth of - moveables. - ------ - -However natural may be the explanation, the fact is no less notable that -the only clauses of the original Charter which partook of a -constitutional character entirely disappeared from all of its re-issues. -Magna Carta as granted by Henry is purely concerned with matters which -lie within the sphere of private law, and contains no attempt to devise -machinery of government or to construct constitutional safeguards for -the protection of national liberties. The circumstances of the King’s -minority, perhaps, implied a constitutional check on the monarchy in the -necessary existence of guardians, but when Henry III. attained majority, -Magna Carta, deprived of its original sanctions, would, with the -disappearance of the Regency, tend to become an empty record of royal -promises. The entire machinery of government remained exclusively -monarchic; the king, once out of leading-strings, would be restrained -only by his own sense of honour and by the fear of armed resistance—by -moral forces neither legal nor constitutional. The logical outcome, -under the ripening process of time, was the Barons’ War. - -The importance of the omissions is considerably minimized, however, by -two considerations. (_a_) Many of the original provisions were merely -declaratory, and their omission in 1216 by no means implied that they -were then abolished. The common law remained what it had been -previously, although it was not considered necessary to specify those -particular parts of it in black and white. In particular, throughout the -entire reign of Henry, the _Commune Concilium_ frequently met, and was -always, in practice, consulted before a levy was made of any scutage or -aid. (_b_) It is clearly stated in the new charter that the advisability -of replacing these omitted clauses was reserved for further -consideration at some more opportune occasion. In the so-called -“respiting clause” (chapter 42) six topics were specially named as thus -reserved because of their “grave and doubtful” import: the levying of -scutages and aids, the debts of the Jews, the liberty of going from and -returning to England, the forest laws, the “farms” of counties, and the -customs relating to banks of rivers and their guardians. This respiting -clause amounts to a definite engagement by the King to take into serious -consideration at some future time (probably as soon as peace had been -restored) how far it would be possible to re-insert the omitted -provisions in a new charter. This promise was partially fulfilled a year -later.[243] - ------ - -Footnote 243: - - Dr. Stubbs propounds the theory that this re-issue of 1216 represents - a compromise whereby the central government, in return for increased - taxing powers, allowed to the feudal magnates increased rights of - jurisdiction. He gives, however, no reasons for this belief, either in - _Select Charters_, p. 339, or in his _Constitutional History_, II. 27. - It is abundantly clear that the Crown reserved a free hand for itself - in taxation, but there seems no evidence to support the other part of - the theory, namely, that feudal justice gained new ground against - royal justice in 1216 which had not been already gained in 1215. - ------ - -A practical difficulty confronted the advisers of the young King as to -the execution of the Charter. No instance of a Regency had occurred -since seals came into general use; and, therefore, neither law nor -custom afforded precedents for the execution of documents during a -king’s minority. The seal of a king, like that of any ordinary magnate, -was personal to him, and not available for his heir. The custom indeed -was to destroy the matrix when a death occurred, and thus to prevent its -being put to improper uses. John’s great seal could no longer be -used,[244] and the advisers of Henry III. shrank from the responsibility -of making a new one for the infant monarch. Yet no charter would be -binding unless executed with all the recognized formalities. In these -circumstances it was resolved to authenticate the new Charter by -impressing on it the seals of the papal legate and of the Regent. Henry -was made to explain that, in the absence of a seal of his own, the -Charter had been sealed with the seals of Cardinal Gualo and of William -Marshal, Earl of Pembroke, “_rectoris nostri et regni nostri_.” - ------ - -Footnote 244: - - It is unnecessary to invent any special catastrophe to account for the - disappearance of John’s seal. Blackstone (_Great Charter_, xxix.) - says, "King John’s great seal having been lost in passing the washes - of Lincolnshire." - ------ - -The issue of the new Charter was not immediately successful in bringing -the civil war to an end; but a stream of waverers flowed from Louis to -Henry, influenced partly by the success of the national faction in the -field and partly by the moderate policy of the government typified by -the re-issue of the Charter. On 19th May, 1217, the royalists gained a -decisive victory at the battle known as the “Fair of Lincoln”; and, on -24th August following, Hubert de Burgh, the Justiciar, destroyed the -fleet on which Louis depended. The French prince was compelled to sue -for peace. Although negotiations were somewhat protracted, the resulting -Treaty of Lambeth bears date the 11th September, 1217, the day on which -they opened.[245] Several interviews took place at Lambeth between 11th -and 13th September, and these were followed by a general conference at -Merton, commencing on the 23rd, at which Gualo, Louis, the Regent, and -many English nobles were present.[246] Some difference of opinion exists -as to the exact stages of these negotiations,[247] and it seems best to -treat as one whole the settlement ultimately arranged. “The treaty of -Lambeth is, in practical importance, scarcely inferior to the charter -itself.”[248] It marked the final acceptance by the advisers of the -Crown of the substance of Magna Carta as the permanent basis of -government for England in time of peace, not merely as a provisional -expedient in time of war. Its terms were equally honourable to both -parties: to the Regent and his supporters, because of the moderation -they displayed; and to Louis who, while renouncing all claim to the -English Crown, did so only on condition of a full pardon to his allies, -combined with the guarantee of their cause, so far at least as that was -embodied in the Charter. Ten thousand marks were paid to Louis, -nominally as indemnity for his expenses; but he had in return to restore -the Exchequer Rolls, the charters of the Jews (that is the rolls on -which copies of their starrs or mortgages had been registered),[249] the -Charters of Liberties granted by John at Runnymede, and all other -national archives in his possession. Sir William Blackstone thinks it -probable that, under this clause of the treaty, the original of the -Articles of the Barons was handed over, and deposited among the other -archives of the Archbishop of Canterbury at Lambeth Palace where it -remained until the middle of the seventeenth century.[250] One condition -of this general pacification was of supreme importance—the promise given -by the Regent and the papal legate to grant a new and revised Charter. -This promise was fulfilled some six weeks later, a Charter of Liberties -and a separate Forest Charter being issued on the 6th November, -1217.[251] - ------ - -Footnote 245: - - Compare what is said of the negotiations at Runnymede, and the date of - John’s Magna Carta, _supra_, p. 48. - -Footnote 246: - - Blackstone, _Great Charter_, xxxiv. - -Footnote 247: - - _Ibid._ - -Footnote 248: - - Stubbs, _Const. Hist._, II. 25. - -Footnote 249: - - See _infra_ under chapter 9. - -Footnote 250: - - _Great Charter_, xxxix., and _cf. infra_, p. 201. - -Footnote 251: - - The Forest Charter, preserved in the archives of Durham Cathedral, - bears this date, and that, in itself, affords some presumption that - the Charter of Liberties (undated) to which it forms a supplement was - executed at the same time. M. Bémont accepts this date; see his - _Chartes_, xxviii., and authorities there cited. Blackstone, _Great - Charter_, xxxix., gives the probable date as 23rd September. Dr. - Stubbs, always catholic in his sympathies, gives both dates, 23rd - September in _Sel. Charters_, 344, and 6th November in _Const. Hist._, - II. 26. This Charter of Liberties of 1217, originally found among the - archives of Gloucester Abbey and now in the Bodleian Library at - Oxford, still bears the impression of two seals—that of Gualo in - yellow wax, and that of the Regent in green. See Blackstone, _Great - Charter_, p. xxxv. The existence of the separate Forest Charter was - only surmised by Blackstone, _Ibid._, p. xlii.; but shortly after he - wrote, an original of it was found among the archives of Durham - Cathedral. For an account of this and of its discovery, see Thomson, - _Magna Charta_, pp. 443-5. - ------ - -The issue of these two Charters put the copestone to the general -pacification of the kingdom. After the wide-spread havoc wrought by two -years of civil war, the moment had come for a definite and final -declaration by the Regent of his policy for ruling an England once more -at peace. Not only was he bound in honour to this course by the Treaty -of Lambeth, but the opportunity was a good one for fulfilling the -promise made in chapter 42 of the Charter of 1216. Accordingly the -respiting clause of that document now disappeared altogether, and some -new clauses took its place. The matters reserved for further discussion -as “_gravia et dubitabilia_” had now been reconsidered and were either -finally abandoned, or else accepted with more or less radical -alterations. The results of these deliberations are to be found in a -number of additions to the Charter of Liberties of 1217, the most -important of which are chapters 44 and 46, and in the terms of a Forest -Charter now granted for the first time. - -Chapter 46 is a “saving clause,” reserving to archbishops, bishops, -abbots, priors, templars, hospitallers, earls, barons, and all other -persons, cleric and lay, the liberties and free customs which they -previously had. The vagueness of this provision (a mere reference to the -undefined and misty past) deprived it of all practical value. The other -addition was of much greater importance. - -Chapter 44 directed that scutages should be taken in the future as they -had been wont to be taken in the time of Henry II. Now, the rates of -scutage and the procedure for levying it in that reign had been quite -specific, and could still be read among the Rolls of the Exchequer -recently recovered from Prince Louis. It was thus easy to define the -various innovations of John’s reign, those well-hated additional burdens -which had furnished the chief motive for the civil war, and which Henry -III. was now made to promise should be utterly swept away. This general -condemnation probably included the increased frequency of John’s -exactions, the assessment of scutages on the new basis provided by the -Inquest of 1212, the levy of both scutage and service cumulatively, and, -above all, the exaction of the high rate of three marks per knight’s -fee. The essence of the demands pressed on the government by the -baronial leaders in 1217 must undoubtedly have been the return to the -normal maximum rate of 20s. per knight’s fee. Henry II., we have seen, -sometimes took less, but only on one occasion took more.[252] This -provision, it should be needless to say, did not preclude the barons -individually or collectively from volunteering to contribute at a higher -rate; and the necessity of such abnormal contributions would naturally -be determined at meetings of the _Commune Concilium_. - ------ - -Footnote 252: - - See _supra_, p. 88. - ------ - -The substitution of this definite stipulation of a return to the -well-known usage of Henry II. in place of the discarded chapters 12 -and 14 of John’s Charter (which made “common consent” necessary for -_all_ scutages, whatever the rate) was a natural compromise; and the -barons in agreeing to it were probably quite justified in thinking, -from their own medieval point of view, that they were neither -submitting to any unfair abridgments of their rights, nor yet -countenancing any reactionary measures hurtful to the growth of -constitutional liberty.[253] Yet when this alteration is viewed by -modern eyes in the light cast by the intervening centuries of -constitutional progress, and when it is remembered that the new clause -formed the chief part of the concessions made in 1217 to baronial -claims, the conclusion inevitably suggests itself that the new -agreement is the proof of retrograde tendencies successfully at work. -All mention of the _Commune Concilium_—that predecessor of the modern -Parliament, that germ of all that has made England famous in the realm -of constitutional laws and liberties—disappears, apparently without -protest or regret. If the control of taxation by a national assembly, -if the conception of representation, if the indissoluble connection of -these two principles with each other, ever really found a place in -Magna Carta, they were contemptuously ejected from it in 1216, and -failed to find a champion in 1217 to demand their restoration. - ------ - -Footnote 253: - - Mr. Hubert Hall (_Eng. Hist. Rev._, IX. 344) takes a different view, - however, considering that a reduction of scutages to the old rate of - the reign of Henry II. was impossible; he speaks of “the astounding - and futile concession in c. 44 of the charter of 1217.” The clause is - surely neither astounding nor futile if we regard it as a promise by - Henry III. that he would not exact more than 20s. per knight’s fee - _without consent_, and if we further note that it was the practice of - his reign to ask such consent from the _Commune Concilium_ for - scutages even of a lower rate. A levy of 10s., for example, was - granted by a Council in 1221. See Stubbs, _Const. Hist._, II. 33. - ------ - -A modern statesman, with any knowledge of the value of constitutional -principles, would have gladly seized the occasion of the revision of the -terms of the Charter, to assert and define the functions and rights of -the Great Council with precision and with emphasis. He would not lightly -have thrown away the acknowledgment implied in chapters 12 and 14 of -1215—in the germ, at least—of the right of a national council to -exercise a legal control over the levying of taxes. The magnates on both -sides in 1217 were content, however, to abandon to their fate all -abstract principles of constitutional development, provided they could -protect their lands and purses from an immediate increase of taxation. -Far-reaching problems of the composition and privileges of Parliament -were unhesitatingly surrendered, as soon as another method of defence -against arbitrary increase of scutage was suggested. The barons were -selling, not indeed their birthright, but their best means of gaining -new rights from the Crown, for “a mess of pottage.” - -Such considerations, however, must not be pressed too far. It should not -be forgotten that no one seriously thought in 1217, any more than in -1216, of dispensing with future meetings of the feudal tenants in -_Commune Concilium_. Great Councils indeed continued to meet with -increasing frequency throughout the reign of Henry III., and the consent -of the magnates therein assembled was habitually asked to scutages even -at a lower rate than that which had been normal in Henry II.’s reign. -Sometimes such consent was given unconditionally; sometimes in return -for a new confirmation of the cherished Charters; sometimes, even, it -was met by an absolute refusal—the first distinct instance of which -seems to have occurred in January, 1242.[254] - ------ - -Footnote 254: - - Prothero, _S. de Montfort_, 67. - ------ - -Another set of provisions which the respiting clause of 1216 had -promised to reconsider was amply restored in the terms of a separate -Forest Charter. This took the place not only of certain chapters of the -original grant of 1215 omitted in 1216, but also of chapters 36 and 38 -of the grant of 1216. Nothing was, however, done to restore other -important omissions, namely, those relating to the Jews, to intestate -succession, to free ingress to and egress from England. On the other -hand, additional provisions, not promised in the respiting clause, were -directed against various abuses of the Crown’s feudal and other -prerogatives.[255] - ------ - -Footnote 255: - - See cc. 7, 26, and 38 of 1217. Blackstone (_Great Charter_, xxvii.) - further considers that c. 35 of 1217 contains “more ample provision - against unlawful disseisins”; and this opinion of a great lawyer is - shared by a distinguished historian. Mr. Prothero (_Simon de - Montfort_, 17 n.), finds that the words of the re-issue “are - considerably fuller and clearer than the corresponding declaration in - the charter of 1215.” It will be shown, however, _infra_ under chapter - 39, that one object of the alteration was to make it clear that - holdings of villeins were excluded from the projection of the - _judicium parium_; and that other alterations in the Charter of 1217 - (_e.g._ chapter 16) are carefully drawn with a similar object. - ------ - -So far the Charter of 1217, with its restorations and additions, may be -regarded as a politic effort to secure the support of the barons by -satisfying their reasonable demands; but it may also be viewed in three -other aspects: (1) as containing provisions for suppressing the anarchy -still prevalent in several districts, a legacy from the civil war; (2) -as amending some few details of the original grant which the experience -of two years had shown to be defective or objectionable; and (3) as -making a first attempt to solve certain problems of government which had -come quite recently to the foreground, but which were not successfully -grappled with until three-quarters of a century later, when the -legislative genius of Edward Plantagenet was brought to bear upon them. - -Among the chapters restoring order, the most important, with the -exception of those recasting the machinery of administration, was that -which ordered the destruction of the “adulterine” castles,[256] that is, -the private strongholds built by barons without the licence of the -Crown. These remained in 1217, as they had remained in 1154, a result of -past civil war, and a menace to peace and good government in the future. -It was the aim of every efficient ruler to abolish all fortified -castles—practically impregnable in the thirteenth century when artillery -was unknown—except those of the King, and to see that the royal castles -were under command of “constables”[257] of approved loyalty. John had -placed his own strongholds under creatures of his own, who, after his -death, refused to give them up to his son’s Regent. The attempt to -dislodge these soldiers of fortune, two years later, led to new -disturbances in which the famous Falkes de Breauté played a leading -part.[258] The destruction of “adulterine” castles and the resumption of -royal ones were both necessary accompaniments of any real pacification. - ------ - -Footnote 256: - - C. 47 of 1217. - -Footnote 257: - - See _infra_ under cc. 24 and 45. - -Footnote 258: - - Stubbs, _Const. Hist._, II. 32. - ------ - -The re-issue of 1217 may also be regarded as bearing some analogy to a -modern amending Statute. Experience, for example, had suggested the -desirability of several alterations in the procedure for holding petty -assizes. Many objections had been taken to the dispatch of Justices, -with commissions to hold assizes in the various counties, so frequently -as four times every year. It was now agreed to reduce these circuits -from once a quarter to once a year—a concession to those who felt the -burden of too frequent attendance.[259] Although the king’s Justices -were still to enjoy the co-operation of knights from each county, it was -no longer specially mentioned that these knights should be _elected_. -All pleas of darrein presentment were removed from the jurisdiction of -the Justices on circuit, and reserved for the consideration of “the -Bench,” presumably now settled at Westminster.[260] The two other -assizes (novel disseisin and mort d’ancestor) were still left to the -king’s Justices in the respective counties where the lands lay, but -difficult points of law were reserved for “the Bench.”[261] The -inferiority of the Justices of Assize to the Courts at Westminster was -thus made clear. - ------ - -Footnote 259: - - C. 13 of 1217. - -Footnote 260: - - C. 15 of 1217. - -Footnote 261: - - C. 14 of 1217. - ------ - -The same natural reluctance of those who owed suit to the local courts, -to neglect their own affairs in order to perform public duties, which -led to the demand for less frequent visits of the Justices of Assize, -led also to an emphatic restatement of the old customary rules as to -attendance at County Courts. Ordinary sessions were not to be held more -frequently than once a month, nor was the sheriff to make his Tourn, or -local circuit, throughout the various hundreds of his county more -frequently than twice a year, namely at Easter and Michaelmas: and only -at Michaelmas was he to hold view of frankpledge—one of the most -important functions performed by him in the course of his circuit.[262] -It was a more distinct concession to the feudal anti-centralizing -spirit, that this royal view of frankpledge—for the sheriff acted as the -king’s deputy—was prohibited from infringing any freeman’s franchises, -whether such franchises had existed under Henry II. or had been -subsequently acquired.[263] - ------ - -Footnote 262: - - C. 42 of 1217. - -Footnote 263: - - _Ibid._ This seems to imply that all the aggressions since Henry’s - reign, had not been on one side. The barons, in obtaining a promise to - respect “franchises” acquired since 1189, tacitly admitted that they - had been recently encroaching on royal prerogatives. By the Statute of - Gloucester and the subsequent _quo warranto_ procedure Edward I. made - a partially successful effort to redress the balance. - ------ - -Two questions, destined to become of supreme importance in the future, -have also left traces on this re-issue of the Charter:—on chapters 39 -and 43 respectively. The former treats of the vexed question of a feudal -tenant’s right to dispose of parts of his holding by gift or sale. There -were two different methods of effecting this—by way of subinfeudation or -by way of substitution: the tenant might create a new link in the feudal -chain by granting part of his lands to a third party, who became his -vassal as a result of the new grant; or he might endeavour to make the -donee the direct vassal of his overlord, _quoad_ the land he had newly -acquired. There was here a direct conflict of interest between overlord -and tenant, which extended to both ways of conveying land. Freedom to -sell it or give it away was clearly an advantage to the tenant; while -the lord objected to a transaction which might thrust on him new vassals -he did not desire, or might divide between two or more vassals the -obligations formerly incumbent on one, making the incidence of feudal -burdens uncertain and their enforcement more difficult. Chapter 39 -contained a compromise. The tenant might part with a portion of his -holding, provided the balance he reserved was sufficient to ensure full -performance by himself of the obligations due to the lord. The original -vassal thus remained primarily liable for the whole of the feudal -obligations (whatever right of relief he might have against his donees -or sub-tenants), and must reserve in his own hands sufficient lands out -of the proceeds of which to fulfil them. The final solution of the -problem, here temporarily disposed of, was contained in the Statute -commonly known as _Quia Emptores_,[264] which allowed the tenant to -dispose of parts of his estate by way of substitution, while forbidding -subinfeudation entirely. - ------ - -Footnote 264: - - 18 Edward I., also known as Westminster III. - ------ - -Chapter 43 marks the growing hostility against the accumulation by the -monasteries of wealth in the form of landed estates, and begins the -series of legislative measures which culminated in the Statute of -Mortmain.[265] The times were not ripe in 1217 for a final solution of -this problem, and the charter of that year contented itself with an -attempt to remedy one of the subsidiary abuses of the system merely, and -not to abolish the main evil. An ingenious expedient had been devised by -lawyers to enable tenants to cheat their lords out of some of the lawful -feudal incidents. Religious houses formed one species of corporation, -and all corporations made bad tenants, since, as they never died, the -lord of the fief was deprived of the possibility of a wardship, relief, -or escheat falling to him. This was a hardship; but it was not unfair, -provided that the transaction which made the abbey or monastery owner of -the subjects was a _bona fide_ one. Sometimes, however, more or less -collusive agreements were made between a lay free-holder and a religious -house whereby a new link was inserted in the feudal chain to the -prejudice of the freeholder’s lord. The freeholder bestowed his lands on -a particular house, which took his place as the new tenant of the lord -and then subinfeudated the same subjects to the original tenant, who -thus got his lands back again, but now became tenant of the church, not -of his former lord. The lord was thus left with a corporation for his -tenant and lost all the profitable incidents, which would, under the new -arrangement, accrue to the church when the freeholder died. Such -expedients were prohibited, under pain of forfeiture, by chapter 43 of -the re-issue of 1217; and this prohibition was interpreted very -liberally by the lords in their own favour.[266] - ------ - -Footnote 265: - - 7 Edward I., also known as the Statute _de religiosis_. - -Footnote 266: - - See Pollock and Maitland, I. 314. - ------ - -These were the main alterations made in 1217 in the tenor of the Great -Charter.[267] This re-issue is of great importance, since it represents -practically the final form taken by the Charter, only two changes being -made in subsequent issues.[268] On the 22nd February, 1218, copies of -the Great Charter in this new form were sent to the sheriffs to be -published and enforced. In the writs accompanying them, the special -attention directed to the clause against unlicensed castles shows the -importance attached to their demolition.[269] - ------ - -Footnote 267: - - Minor variations are discussed under their appropriate chapters - _infra_. A full list is given by Blackstone, _Great Charter_, xxxvi. - -Footnote 268: - - _Cf._ Stubbs, _Const. Hist._, II. 27. “This re-issue presents the - Great Charter in its final form.” - -Footnote 269: - - The terms of these writs are preserved in _Rot. Claus._, I. 377. - -The Regent and the ministers of the Crown seem to have felt increasingly -the inconvenience of conducting the government without a great seal of -the King. There was a natural reluctance to accept grants authenticated -merely by substitutes for it, since these might not be treated as -binding on the monarch when he came of age. The Regent at last agreed to -the engraving of a great seal for Henry, but not without misgivings. To -prevent it being used by unscrupulous ministers to validate lavish -grants to their own favourites to the impoverishment of the Crown, the -Council, on the advice of the Regent, issued a proclamation that no -charter or other deed implying perpetuity should be granted under the -new seal during the King’s minority—a saving clause of which Henry was -destined to make a startling use. This proclamation was probably issued -soon after Michaelmas 1218.[270] - ------ - -Footnote 270: - - Stubbs, _Const. Hist._, II. 30. The _Annals of Waverley_, p. 290, - speak of a re-issue of the charters about this date; but this probably - results from confusion with what happened a year earlier. See Stubbs, - _Ibid._ - ------ - -On 14th May, 1219, England lost a trusted ruler through the death of the -aged Regent, whose loyalty, firmness, and moderation had contributed so -much to repair the breaches made in the body politic by John’s evil -deeds, and the consequent civil war. After the good Earl of Pembroke’s -death, the Bishop of Winchester and Hubert de Burgh contended for the -chief place in Henry’s councils, with alternating success, but neither -of them succeeded to the title of _Rector regis et regni_.[271] A few -years later, the young King seems to have grown impatient under the -restraints of a minority, and the Roman Curia was ready to bid for his -goodwill by humouring him. In 1223 Honorius III., by letter dated 13th -April, declared Henry (then only in his sixteenth year) to be of full -age as regarded most of the duties of a king.[272] - ------ - -Footnote 271: - - Stubbs, _Const. Hist._, II. 31. - -Footnote 272: - - Stubbs, _Const. Hist._, II. 32, and authorities there cited. - ------ - -The terms of this papal letter may have suggested to some of Henry’s -councillors the possibility of renouncing the Charters on the ground -that they had been granted to the prejudice of the King before he had -been declared of full age. One of his flatterers, William Briwere by -name, at a “colloquium” held in January, 1223, advised him to repudiate -the two Charters when requested by Stephen Langton to confirm them. -Briwere’s bold words are reported by Matthew Paris.[273] “_Libertates -quas petitis, quia violenter extortae fuerunt, non debent de jure -observari._” This doctrine of repudiation moved the primate to anger, -and Henry, still accustomed to leading-strings, gave way, swearing to -observe the terms of both charters. An element of truth, however, -underlay Briwere’s advice, and the whole incident probably showed to the -more far-seeing friends of liberty the necessity of a new and -_voluntary_ confirmation of the Charters by the King. An opportunity for -securing this occurred next year, when Henry at Christmas, 1224, -demanded one-fifteenth of all his subjects’ moveables. He was met by a -firm request that he should, in return for so large a grant, renew Magna -Carta. The result was the re-issue on 11th February, 1225, of both -Charters each of which was, as a matter of course, fortified by the -impression of the great seal recently made. The importance of the whole -transaction was enhanced by the declaration made by Honorius III. only -two years previously, that Henry was of full age to act for himself. The -new forest Charter was practically identical with that issued in 1217; -while the only alterations in the tenor of the Charter of Liberties were -the result of a laudable determination to place on record the -circumstances in which it had been granted. In the new preamble Henry -stated that he conceded it “_spontanea et bona voluntate nostra_” and -all reference to the consent of his magnates was omitted, although a -great number of names appear as witnesses at the close of the Charter. -These alterations were intended to emphasize the fact that no pressure -had been brought to bear on him, and thus to meet future objections such -as William Briwere had suggested in 1223, namely, that the confirmation -of the Charter had been extorted by force.[274] - ------ - -Footnote 273: - - _Chronica Majora_, III. 76. - -Footnote 274: - - Dr. Stubbs thinks that in thus avoiding one danger, a greater danger - was incurred. "It must be acknowledged that Hubert, in trying to bind - the royal conscience, forsook the normal and primitive form of - legislative enactment, and opened a claim on the king’s part to - legislate by sovereign authority without counsel or consent." (_Const. - Hist._, II. 37.) This seems to exaggerate the importance of an - isolated precedent, the circumstances of which were unique. The - confirmation was something far apart from an ordinary “legislative - enactment.” - ------ - -The “consideration” also clearly appears in the concluding portion of -the Charter, where it is stated that in return for the foregoing gift of -liberties along with those granted in the Forest Charter, the -archbishops, bishops, abbots, priors, earls, barons, knights, free -tenants, and all others of the realm had given a fifteenth part of their -moveables to the King. - -The prominence given to this feature brings the transaction embodied in -the re-issue of 1225 (as compared with the original grant of 1215) one -step nearer the legal category of “private bargain.” It is, in one -aspect, simply a contract of purchase and sale. Another important new -clause follows—founded probably on a precedent taken from chapter 61 of -the Charter of King John: Henry is made significantly to declare “And we -have granted to them for us and our heirs, that neither we nor our heirs -shall procure any thing whereby the liberties in this charter shall be -infringed or broken; and if any thing shall be procured by any person -contrary to these premises, it shall be held of no validity or effect.” -This provision was clearly directed against future papal dispensations -or abrogations, such as that which King John had obtained from Innocent -in 1215. The clause, however, was diplomatically made quite general in -its terms.[275] - ------ - -Footnote 275: - - A few minor alterations, such as the omission of the clause against - unlicensed castles (now unnecessary) and some verbal changes need not - be mentioned. A list of these is given by Blackstone, _Great Charter_, - l. - ------ - -One original copy of this third re-issue of the Great Charter is -preserved at Durham with the great seal in green wax still perfect, -though the parchment has been “defaced and obliterated by the -unfortunate accident of overturning a bottle of ink.”[276] A second is -to be found at Lacock Abbey, in Wiltshire. The accompanying Forest -Charter is also preserved at Durham.[277] - ------ - -Footnote 276: - - See Blackstone, _Ibid._, xlvii. to l. - ------ - ------ - -Footnote 277: - - _Ibid._ - ------ - -This third re-issue brings the story of the genesis of the Great Charter -to an end. It marked the final form assumed by Magna Carta; the -identical words were then used which afterwards became stereotyped and -were confirmed, time after time, without further modification. It is -this Charter of 1225 which is always referred to in the ordinary -editions of the Statutes, in the courts of law, in parliament, and in a -long series of classical law books beginning with the second _Institute_ -of Sir Edward Coke.[278] - ------ - -Footnote 278: - - One slight exception should be noted. In one point of detail a change - had occurred since 1225; the rate of relief payable from a barony had - been reduced from £100 to 100 marks. See _infra_ under chapter 2. - ------ - -Although the Charter, thus, in 1225 took the permanent place it has -since retained among the fundamental laws of England, it was not yet -secure from attacks. Two years later the actions of Henry raised strong -suspicions that he would gladly annul it, if he dared. - -The young King, in spite of the Pope’s bull declaring him of full age in -1223, had in reality only passed from one set of guardians to another; -he had long chafed under the domination of the able but unscrupulous -Peter des Roches, Bishop of Winchester, when in the beginning of 1227 he -suddenly rebelled. Acting probably under the advice of Hubert de Burgh, -who wished to return to power, Henry determined to shake off the control -of Bishop Peter. At a Council held at Oxford in January, 1227, Henry, -though not yet twenty, declared himself of full age;[279] and soon -thereafter showed what use he intended to make of his newly acquired -freedom. Making an unexpected application of the proclamation issued by -the Regent, William Marshal, in 1218, that the great seal should not, -during the minority, be used to authenticate any grants in perpetuity of -royal demesne lands or other rights of the Crown, Henry now interpreted -this to imply the nullity of all charters whatsoever which had been -issued under the great seal since his accession. He even tentatively -applied this startling doctrine to the Forest Charter. - ------ - -Footnote 279: - - A bull of Gregory IX., dated 13th April, 1227, confirmed Henry in this - declaration that his minority was ended. See Blackstone, _Great - Charter_, li., and Stubbs, _Const. Hist._, II. 39. - ------ - -Henry’s new policy seems to have been endorsed by the magnates present, -and on 21st January, 1227, he issued by their “common counsel” a series -of “letters close” directing that all recipients of Crown charters must -apply for their renewal—a ceremony requiring, of course, to be -handsomely paid for. On 9th February a second series of “letters close” -was issued, resulting in the extension of many forests to their old -boundaries once more.[280] - ------ - -Footnote 280: - - See _Rot. Claus._, II. 169, and Stubbs, _Const. Hist._, II. 40, where - it is suggested that “the declaration seems merely to have been a - contrivance for raising money.” This is not quite accurate. Mr. G. J. - Turner, in his introduction to _Select Pleas of the Forest_, pp. xcix. - to cii., gives a full and convincing account of Henry’s procedure and - motives. “The king neither repudiated the Charter of the Forest nor - annulled the perambulations which had been made in his infancy. He - merely corrected them after due inquiry.” - ------ - -Fears, apparently unfounded, that the Great Charter was in danger, seem -to have been rife. If Henry really entertained any intention of setting -aside Magna Carta, it is fortunate that the attack upon it, suggested to -the King by William Briwere in January, 1223, was not seriously -attempted until four years later. The delay was of supreme importance, -since there had intervened the third re-issue of the Charter containing -the declaration that the King had acted voluntarily, and fortified by -the facts that Honorius had previously declared him of full age for such -purposes, and that he had accepted a price for the confirmation of the -Charter. Henry could not now repudiate the papal dispensation which he -had gladly accepted and acted upon four years earlier. In this way the -re-issue of both charters in 1225 had gone far to secure the national -liberties. Henry shrank from any open infringement of the Great Charter; -and, although he was partially successful in restoring the forests to -their old wider boundaries, thus undoing many reforms of his minority, -he proceeded without violating the letter of the Forest Charter. -Henceforward, Henry’s attitude towards the charters was a settled one, -and easily understood. He confirmed them with a light heart whenever he -could obtain money in return, and thereafter acted as though they did -not exist. - -Henceforth history is concerned not with re-issues but with -confirmations of the Great Charter. Of these the number is considerable, -beginning with that granted at Westminster on 28th January, 1237;[281] -but it forms no part of the scheme of this Historical Introduction to -describe these in detail.[282] One of them, the so-called _Confirmatio -Cartarum_ of 5th November, 1297, is specially important, not because it -is a confirmation, but because it is something more. It contains new -clauses which impose restrictions on the taxing power of the Crown; and -these, to some extent, take the places of those chapters (12 and 14) of -the original grant of John, which had been omitted in all intervening -re-issues and confirmations. - ------ - -Footnote 281: - - Blackstone, _Great Charter_, 68–9; Stubbs, _Sel. Charters_, 365–6. - -Footnote 282: - - The more important among them are enumerated by Coke in his second - _Institute_, p. 1. Further details are given by Blackstone, _Great - Charter_, lii.; Thomson, _Magna Charta_, 437–446; and in Bémont, - _Chartes_, pp. xxx. to liii. - ------ - -A Statute of 1369 (42 Edward III. c. 1), requires special notice, since -it commands that “the Great Charter and the Charter of the Forest be -holden and kept in all points, and if any statute be made to the -contrary that shall be holden for none.” Parliament in 1369 thus sought -to deprive future Parliaments of the power to effect any alterations -upon the terms of Magna Carta. Yet, if Parliament in that year had the -power to add anything by a new legislative enactment to the ancient -binding force of the Great Charter, it follows that succeeding -Parliaments, in possession of equal powers, might readily undo by a -second statute what the earlier statute had sought to effect. If -Parliament had power to alter the sacred terms of Magna Carta itself, it -had equal power to alter the less sacred statute of 1369 which declared -it unalterable. The terms of that statute, however, are interesting as -perhaps the earliest example on record of the illogical theory -(frequently reiterated in later years) that the English Parliament might -use its present legislative supremacy in such a manner as to limit the -legislative supremacy of other Parliaments in the future. - - II. Magna Carta and the Reforms of Edward I. - -The Great Charter, alike from its excellences and from its defects, -exercised a potent influence on the trend of events throughout the two -succeeding reigns. It is hardly too much to say that the failure of -Magna Carta to provide adequate machinery for its own enforcement is -responsible for the spirit of unrest and for the protracted struggles -and civil war which made up the troubled reign of Henry III.; while the -difference of attitude assumed by Henry and by his son Edward -respectively towards the scheme of reform it embodied explains the -fundamental difference between the two reigns—why the former was so full -of conflicts and distress, while the latter was so prosperous and -progressive. To trace the history of these reigns in detail lies outside -the scope of this Historical Introduction. It seems necessary, however, -to emphasize such outstanding events as have an obvious and close -connection with the Great Charter, and also to outline the policy of -Edward, which led ultimately to the triumph of its underlying -principles. - -The fundamental difference between the reigns of Henry III. and Edward -I. lies in this, that while Henry, in spite of numerous nominal -confirmations of Magna Carta, never loyally accepted the settlement it -contained, Edward, on the contrary, acquiesced in the main provisions of -the Great Charter, under many subtle modifications it is true, yet -honestly on the whole, and with a sincere intention to carry them into -practice. - -At the same time, the attitude even of Henry III. towards Magna Carta -indicates a distinct advance upon that of his father. It was much that -the advisers of John’s infant heir solemnly accepted, on behalf of the -Crown, the provisions of the Charter, and strove to enforce them during -the minority; and it was even more that Henry, on attaining majority, -confirmed the arrangement thus arrived at, freely and on his own -initiative, and found himself thereafter unable openly to repudiate the -bargain he had made. Yet the settlement of the dissensions between Crown -and baronage was still nominal rather than real. In the absence of -proper constitutional machinery, the king was merely bound by bonds of -parchment which he could break at pleasure. The victory of the friends -of liberty proved a hollow one, since unsupported promises count for -little in the great struggles fought for national liberties. Even the -crude constitutional devices of the Charter of 1215 entirely disappeared -from its confirmations; and, in the absence of all sanctions for its -enforcement, the Charter became an empty expression of good intentions. -If a quarrel arose, no constitutional expedient existed to reconcile the -disputants—nothing to obviate a final recourse to the arbitrament of -civil war. Thus, part of the blame for the recurring and devastating -struggles of the reign of Henry III. must be attributed to the defects -of the Great Charter. - -The whole interest of the reign indeed lies in the various attempts made -to evolve adequate machinery for enforcing the liberties contained in -Magna Carta. Experiments of many kinds were tried in the hope of turning -theory into practice. The system of government outlined in the -Provisions of Oxford of 1258, for example, reproduced the defects of the -crude scheme contained in chapter 61 of the Great Charter, and added new -defects of its own. It sought to keep the king in the paths of good -government by the coercion of a body of his enemies. This baronial -committee was not designed to enter into friendly co-operation with -Henry in the normal work of government, but rather to supersede entirely -his right to exercise certain of the royal prerogatives. No glimmering -was yet apparent of the true solution afterwards adopted with success. -It was not yet realized that the best way to control the Crown was -through the agency of its own ministers, and not by means of a hostile -opposition organized for rebellion—that the correct policy was to make -it difficult for the king to rule except through regular ministers, and -to secure that all such ministers should be men in whom the _Commune -Concilium_ reposed confidence and over whom it exercised control. - -It is true that Simon de Montfort may have had some vague conception of -the real constitutional remedy for the evils of the reign; but his -ideals were overruled in 1258 by the more extreme section of the -baronial party. Earl Simon indeed had one opportunity of putting his -theories into practice. During the brief interval between the battle of -Lewes, which made him supreme for the moment, and the battle of Evesham, -which ended his career, he enjoyed an unfettered control over the -movement of reform; and some authorities find in the provisional scheme -of government, by means of which he attempted to realize his political -ideals in the closing months of 1264, traces of the true constitutional -expedient afterward successfully adopted as a solution of the problem. -In one respect, undoubtedly, the Earl of Leicester did influence the -development of the English constitution; he furnished the first -precedent for a national Parliament, which reflected interests wider -than those of the Crown tenants and the free-holders, when he invited -representatives of the boroughs to take their places by the side of the -representatives of the counties in the national council summoned to meet -in January, 1265. His schemes of government, however, were not fated to -be realized by him in a permanent form. The utter overthrow of his -faction followed his decisive defeat and death at Evesham on 4th August, -1265. - -The personal humiliation of Simon de Montfort, however, in reality -assured the ultimate triumph of the cause he had made his own. Prince -Edward, from the moment of his brilliant victory at Evesham, was not -only supreme over his father’s enemies, but henceforth he was supreme -also within his father’s councils. He found himself in a position at -once to realize some of his most important political ideals; and from -the very moment of his victory, he adopted as his own, with some -modification, it is true, the main constitutional conceptions of his -uncle Earl Simon, who had been his friend and teacher before he became -his deadliest enemy. - -Edward Plantagenet, alike when acting as the chief adviser of his aged -father and after he had succeeded him on the throne, not only accepted -the main provisions of the Great Charter,[283] but adopted also, along -with them, a new scheme of government which formed their necessary -counterpart. To Edward is due the first dim conception of “parliamentary -government,” to this extent at least, that the king, as head of the -executive government, should take a national council into partnership -with him in the work of national administration. His political ideals -were the natural result of the experience obtained during the later -years of his father’s reign; and he endeavoured to embody in his scheme -of government the best parts of the various experiments in which that -reign abounded. His policy, although founded on that of his uncle Simon -de Montfort, was profoundly modified by his own individual genius. The -very fact of the adoption of Earl Simon’s ideals by the heir to the -throne entirely altered their chances of success. All such schemes had -been foredoomed to failure so long as they merely emanated from an -opposition leader however powerful; but their triumph was speedily -assured now that they were accepted as a programme of reform by the -monarch himself. Henceforth the new political ideals, summed up in the -conception of a national Parliament, were to be fostered by the Crown’s -active support, not merely thrust upon the monarchy from without. - ------ - -Footnote 283: - - The best proof of this will be found in a comparison of Magna Carta - with the Statute of Marlborough, and the chief statutes of Edward’s - reign, notably that of Westminster I. - ------ - -Under the protection of Edward I.—the last of the four great -master-builders of the constitution—the _Commune Concilium_ of the -Angevin kings (itself a more developed form of the Curia Regis of the -Conqueror and his sons) grew into the English Parliament. This implied -no sudden dramatic change, but a long slow process of adjustment, under -the guiding hand of Edward. - -The main features of his scheme may be briefly summarized: Edward’s -conception of his position as a national king achieving national ends, -the funds necessary for effecting which ought to be contributed by the -nation, naturally led him to devise a system of taxation which would -fill the Exchequer while avoiding unnecessary friction with the -tax-payer. His problem was to keep his treasury full in the way most -convenient to the Crown, and at the same time to reduce to a minimum the -discontent and inconvenience felt by the nation at large under the -burden. In broadening the basis of taxation, he was led to broaden the -basis of Parliament; and thus he advanced from the feudal conception of -a _Commune Concilium_, attended only by Crown tenants, to the nobler -ideal of a national Parliament containing representatives of every -community and every class in England. The composition of the great -council was altered; the principle of representation known for centuries -before the Conquest in English local government, now found a home, and, -as it proved, a permanent home, in the English Parliament. It was -obvious that Parliament, whose composition was thus altered, must meet -more frequently than of old. Edward elevated the national council from -its ancient position of a mere occasional assembly reserved for special -emergencies, to a normal and honoured place in the scheme of government. -Henceforth, frequent sessions of parliament became a matter of course. - -The powers of this assembly also widened almost automatically, with the -widening of its composition. Taxation was its original function, since -that was the primary purpose (so the best authorities maintain in spite -of some adverse criticism) for which the representatives of the counties -and the boroughs had been called to it. Legislation, or the right to -veto legislation, was soon added—although at first the new-comers had -only a humble share in this. The functions of hearing grievances and of -proffering advice had, even in the days of the Conqueror, belonged to -such of the great magnates as were able to make their voices heard in -the Curia Regis; and similar rights were gradually extended to the -humbler members of the augmented assembly. The representatives of -counties and of towns retained rights of free discussion even after -Parliament had split into two separate Houses. These rights, fortified -by command of the purse strings, tended to increase, until they secured -for the Commons some measure of control over the executive functions of -the king. This parliamentary control varied in extent and effectiveness -with the weakness of the king, with his need of money, and with the -political situation of the hour. - -The new position and powers of Parliament logically involved a -corresponding alteration in the position and powers of the smaller but -more permanent council or _Concilium Ordinarium_ (the future Privy -Council). This had long been increasing in power, in prestige, and in -independence, a process quickened by the minority of Henry III. The -Council was now strengthened by the support of a powerful Parliament, -usually acting in alliance with the leaders of the baronial opposition. -The members of the Council were generally recruited from Parliament, and -their appointment as king’s ministers and members of the Curia was -strongly influenced by the proceedings in the larger assembly. - -The Council thus became neutral ground on which the conflicting -interests of king and baronage might be discussed and compromised. Wild -schemes like that of chapter 61 of Magna Carta or like that typified in -the Committee appointed by the Mad Parliament in 1258, were now -unnecessary. The king’s own ministers, backed by Parliament, became an -adequate means of enforcing the constitutional restraints embodied in -royal Charters. The problem was thus, for the time being, solved. A -proper sanction had been devised, fit to change royal promises into -realities. - -To sum up, Edward’s aim of ruling as a national king implied the -frequent assembling of a central parliament composed of individuals -fitted to act as links between the Crown and the various classes of the -English nation whom he expected to contribute to the national Exchequer. -It implied also that the national business should be conducted by -ministers likely to command the confidence of that parliament.[284] -Thus, Edward’s policy dimly foreshadowed some of the most fundamental -principles of modern constitutional government—parliament, -representation, ministerial responsibility. Edward Plantagenet was, of -course, far from realizing the full meaning of these conceptions, and if -he had realized it, he would have been most unwilling to accept them; -yet he was unconsciously helping forward the cause of constitutional -progress. - ------ - -Footnote 284: - - The doctrine that the _Commune Concilium_ should have some voice in - the appointment of the Ministers of the Crown had indeed been acted - upon on several occasions even in the reign of Henry III. See Stubbs, - _Const. Hist._, II. 41. - ------ - -This temporary solution, during the reign of Edward I., of an -ever-recurring problem of government has been viewed in two different -aspects. It is sometimes regarded simply as the result of the pressure -of events—as a natural phenomenon evolved, subject to natural laws, to -meet the needs of the age. By other writers it is attributed to the -wisdom and conscious action of King Edward. The two views are perhaps -not so inconsistent as they at first sight seem, since great men work in -harmony with the spirit of their times, and appear to control events -which they only interpret and express. The bargain made at Runnymede -between the English monarch and the English nation found its necessary -counterpart and sanction, before the close of the thirteenth century, in -the conception of a king ruling through responsible ministers and in -harmony with a national Parliament. Edward Plantagenet was merely the -instrument by whose agency the new conception was for a time partially -realized. Yet, he merits the gratitude of posterity for his share in the -elaboration of a working scheme of government, which took the place of -the clumsy expedients designed as constitutional sanctions by the barons -in 1215. He supplied the logical complement of the theories vainly -enunciated in John’s Great Charter, thus changing empty expressions of -good intentions into accomplished facts. The ultimate triumph of the -principles underlying Magna Carta was assured through the constitutional -machinery devised by Edward Plantagenet. - - PART V. - - -MAGNA CARTA: ORIGINAL VERSIONS, PRINTED EDITIONS, AND COMMENTARIES. - - I. Manuscripts of Magna Carta and Relative Documents. - -The barons who had forced the Great Charter on King John were determined -that its contents should be widely known and permanently preserved. It -was not sufficient that the great seal should be formally impressed upon -one parchment. Those who compelled John to submit were not content even -with the execution of its terms in duplicate or in triplicate, but -insisted that the great seal should be appended to many copies all of -practically identical terms and of equal authority. These were to be -distributed throughout the land, and to be preserved in important -strongholds and among the archives of the chapters of cathedral -churches. - -I. _The extant original versions._ Of the many copies of the Charter -authenticated under John’s great seal, four have escaped the destroying -hand of time, and may still be examined by members of the public after -nearly seven centuries have passed. These four records are: - -(1) _The British Museum Magna Carta, number one_—formally cited as -“Cotton, Charters XIII. 31A.” The recent history of this document is -well known. It was found among the archives of Dover Castle in the -seventeenth century; and not improbably it may have lain there for -centuries before, possibly from a date not much later than that of its -original execution; for the castle of Dover, like the Tower of London, -was a natural place for the preservation of documents of national value. -There it was discovered by Sir Edward Dering while warden of the castle, -and by him it was presented to Sir Robert Cotton, accompanied by a -letter dated 10th May, 1630.[285] It still forms an item in the -collection preserved in the British Museum, which bears the name of the -famous antiquary. - ------ - -Footnote 285: - - This letter is also preserved in the British Museum, and cited as - “Cotton, Julius, C. III. Fol. 191.” - ------ - -In the great fire of 23rd October, 1731, which attacked the Cottonian -Library, this valuable Charter was seriously damaged and rendered in -parts illegible, while the yellow wax of the seal was partially melted. -It is possible that this accident has added somewhat to the prestige of -this particular copy of Magna Carta, which, like the three others still -extant, is written continuously, though with many contractions, in a -neat, running, Norman hand. A special characteristic of this version is -that some omissions seem to have been made in the body of the deed and -to have been supplied at the foot of the parchment. These are five in -number.[286] It is possible to regard them as corrections of clerical -omissions due to carelessness or hurry in engrossing the deed; but the -fact that one of the additions is distinctly in the King’s favour raises -a strong presumption that they embodied additions made as afterthoughts -to what had been originally dictated to the engrossing clerk, and that -they were inserted at the King’s suggestion before he would adhibit the -great seal. - ------ - -Footnote 286: - - These are carefully noted among the variations described by the - editors of the Charters of Liberties forming Part I. of the first - volume of the _Statutes of the Realm_. These addenda are (1) at the - end of c. 48, “_per eosdem, ita quod nos hoc sciamus prius, vel - justiciarius noster, si in Anglia non fuerimus_,” providing that the - King should receive intimation of all forest practices branded as - “evil” before they are abrogated; (2) two small additions, near the - beginning of c. 53, (a), “_et eodem modo de justicia exhibenda_,” and - (b) “_vel remansuris forestis_”; (3) in c. 56, these four words, “_in - Anglia vel in Wallia_”; and (4) in c. 61 the words “_in perpetuum_” - after “_gaudere_.” In the 2nd British Museum MS. three of these - addenda appear at the foot, viz. (1), (2_a_) and (2_b_); but the words - of (3) and (4) are incorporated in the body of that MS. - ------ - -The importance of this document was recognized at a comparatively early -date, and a facsimile prepared by John Pine, a well-known engraver of -the day, some eighteen months after the great fire. The engraving bears -a certificate dated 9th May, 1733, narrating that the copy is founded on -the original, which had been shrivelled up by the heat; but that where -two holes had been burned, the obliterated words had been replaced from -the other version (to be immediately described), also preserved in the -Cottonian collection. - -(2) _The British Museum Magna Carta, number two_—formally cited as -“Cotton, Augustus, II. 106.” The early history of this document is -unknown, but sometime in the seventeenth century it came into the -possession of Mr. Humphrey Wyems, and by him it was presented to Sir -Robert Cotton on 1st January, 1628–9. Unlike the other Cottonian copy, -this one is happily in an excellent state of preservation; but there is -no trace left of any seal.[287] Three of the five addenda inserted at -the foot of the copy previously described are found in a similar -position here; but the substance of the two others is included in the -body of the deed. On the left-hand margin, titles intended to be -descriptive of several chapters occur in a later hand.[288] Thus for the -preservation of two original copies of the national charter of liberties -the nation is indebted to Sir Robert Cotton, but for whose antiquarian -zeal they might both have been lost. Apparently, however, a story told -by several authors[289] as to the humiliating fate which threatened the -original Magna Carta must be rejected. Sir Robert, it is said, -discovered “the palladium of English liberties” in the hands of his -tailor at the critical moment when the scissors were about to transform -it into shapes for a suit of clothes. This is undoubtedly a fable, since -both manuscripts of Magna Carta in the Cottonian collection are -otherwise accounted for. - ------ - -Footnote 287: - - “The fold and label are now cut off, though it is said once to have - had slits in it for two seals, for which it is almost impossible to - account; but Dr. Thomas Smith, in his Preface to the _Cottonian - Catalogue_, Oxford, 1695, folio, states that they were those of the - barons” (Thomson, _Magna Charta_, 425). - -Footnote 288: - - Reproductions of this copy are sold at the British Museum at 2s. 6d. - each. - -Footnote 289: - - See Isaac D’Israeli, _Curiosities of Literature_, I. 18, and Thomson, - _Magna Charta_, 424. - ------ - -(3) _The Lincoln Magna Carta._ This copy is under the custody of the -Dean and Chapter of the Cathedral, where it has undoubtedly lain for -many centuries. It has been suggested that Bishop Hugh of Lincoln, -canonized by the Roman Church, whose name appears in the list of -magnates consenting to John’s grant, may have brought it with him from -Runnymede on his return to Lincoln. The word “Lincolnia” is endorsed in -a later hand in two places at the back of the document on folds of the -parchment. It has no corrections or additions inserted at the foot, but -embodies in their proper places all those which occurred in the versions -already discussed. Further, it is executed with more flourishes and in a -more finished manner than these, and the inference is that it took -longer to engross. The Record Commissioners in preparing the _Statutes -of the Realm_ considered this version as of superior authority to any of -the others and have accordingly chosen it as the copy for their -engraving of Magna Carta published in 1810 in that valuable work, and -also in the first volume of their edition of Rymer’s _Foedera_ in -1816.[290] - ------ - -Footnote 290: - - The engraving was executed to their order by James Basire. - ------ - -(4) _The Salisbury Magna Carta_—preserved in the archives of the -Cathedral there. The early history of this manuscript has not been -traced, but its existence was known at the close of the seventeenth -century.[291] Sir William Blackstone, in April, 1759,[292] instituted a -search for it, but without success—his inquiries being met with the -statement that it had been lost some thirty years before, during the -execution of repairs in the Cathedral library. As its disappearance had -really taken place during the tenure of the see by Gilbert Burnet, whose -antiquarian interests were well known, his political adversaries accused -him of appropriating it—an undoubted calumny, yet one to which some -colour was lent by facts to be hereafter explained. The document had not -been re-discovered in 1800 when the royal commission published its -report of the result of its inquiries for national records.[293] Two -sub-commissioners visited Salisbury in 1806 in search of it, but -obtained no satisfaction. It seems, however, to have been re-discovered -within the next few years, since it is mentioned in a book published in -1814,[294] and it is now exhibited to the public by order of the Dean -and Chapter of Salisbury Cathedral. It resembles the Lincoln copy both -in its beautiful leisurely writing and also in the absence of additions -at the bottom of the parchment.[295] - ------ - -Footnote 291: - - See James Tyrrell, _History of England_, Vol. II. 821 (1697-1704). - -Footnote 292: - - Blackstone, _Great Charter_, p. xvii. - -Footnote 293: - - See _Report_ (1800), p. 341, containing the Return by the Chapter - Clerk of the Cathedral Church of Salisbury, dated 15th May, 1800. - -Footnote 294: - - Dodsworth, _Historical Account of the Cathedral_, 202. - -Footnote 295: - - It is unnecessary to treat in detail of the copies of the charter not - authenticated by John’s Great Seal, though some of these are of great - value as secondary authorities. The four most important are (_a_) a - copy appearing in the Register of Gloucester Abbey, (_b_) the Harleian - MSS., British Museum No. 746 (which also contains the names of the - twenty-five Executors in a hand probably of the reign of Edward I.), - (_c_) in the Red Book of the Exchequer. There is also (_d_) an early - French version, printed in D’Achery, _Spicilegium_, Vol. XII. p. 573, - together with the writ of 27th September addressed to the Sheriff of - Hampshire. See Blackstone, _Great Charter_, p. xviii., and Thomson, - _Magna Charta_, pp. 428-430. - ------ - -II. _Comparison of the Originals._ Prior to the publication of Sir -William Blackstone’s great work, extraordinary confusion seems to have -prevailed concerning the various Charters of Liberties. Not only was -John’s Magna Carta confused with the various re-issues by Henry; but -these latter were known only from an official copy of the Charter of -1225 contained in the confirming statute of the twenty-eighth year of -the reign of Edward I., known as an “Inspeximus,” because of the opening -word of the King’s declaration that he had seen the document of which he -gave a copy. Neither Madox[296] nor Brady[297] was aware of the -existence of any one of the four originals; and no mention is made of -them in the first edition of Rymer’s _Foedera_, which appeared in 1704. -Mr. Tyrrell indeed seems to have known of the second original copy in -the British Museum and also of the Salisbury version.[298] Mr. Care[299] -showed no clear knowledge of the various manuscripts, though he -mentioned the existence of several. Even Sir William Blackstone in 1759 -collated only the two Cottonian copies, since he failed to find that of -Salisbury, and was unaware of the existence of the Lincoln -manuscript.[300] - ------ - -Footnote 296: - - Thomas Madox, _Firma Burgi_ (1726). On p. 45, Madox refers only to the - _Inspeximus_ of Edward I. - -Footnote 297: - - Robert Brady, _Complete History of England_, p. 126 of Appendix to - Vol. I. (1685), takes his text of the Charter from Matthew Paris, - “compared with the manuscript found in Bennet College Library.” - -Footnote 298: - - James Tyrrell, _History of England_ (1697-1704). In p. 9 of Appendix - to Vol. II. p. 821, Tyrrell prints a text of John’s Charter founded on - that of M. Paris, collated with those two originals. - -Footnote 299: - - Henry Care, _English Liberties in the Freeborn subjects’ inheritance; - containing Magna Charta_, etc. (1719), p. 5. The first edition, with a - somewhat different title, is dated 1691. - -Footnote 300: - - Strangely enough, Sir Thomas Duffus Hardy, so recently as 1837, in - publishing his _Rotuli Chartarum_ (Introduction, p. ii. note 5) - declared that no original of John’s Charter existed. Many copies, he - knew, had been "made and deposited, for the sake of perpetuation, in - all the principal religious houses in the kingdom. However, - notwithstanding all the care taken by multiplication of copies, it is - singular that no contemporary copy of King John’s Magna Carta has yet - been found." The Lincoln MS. he dismissed as “certainly not of so - early a date,” while he confuses the only one of the British Museum - MSS. known to him with the Articles of the Barons. He further - reasserts the fallacy, so clearly exposed by Blackstone eighty years - earlier, that John had issued a separate _Carta de Foresta_. - ------ - -As these four versions are practically identical in their substance—the -variations being merely in the use of contractions or in other verbal -changes of a trivial character—no important question seems to be -involved in the discussion as to whether any one of them has greater -value than the others. The Record Commissioners considered that the -Lincoln copy was the first to be completed (and therefore that it -possessed special authority), because, unlike the two Cottonian copies, -it contained no insertions at the foot of the instrument. Yet it seems -more plausible to argue that this very immunity from clerical errors, or -from additions made after engrossment, proves that it was of later and -less hurried execution than the others, and therefore of less authority, -if any distinction is permissible. Mr. Thomson has much ground for his -contention in speaking of the fire-marked version in the British Museum -that “the same circumstances may probably be a proof of its superior -antiquity, as having been the first which was actually drawn into form -and sealed on Runnymede, the original whence all the most perfect copies -were taken.”[301] - ------ - -Footnote 301: - - Thomson, _Magna Charta_, 422. - ------ - -In all printed texts of Magna Carta, the contents are divided into a -preamble and sixty-three chapters, and each chapter is numbered and -treated in a separate paragraph by itself. There is no warrant for this -in any one of the four originals, all of which run straight on from -beginning to end, like other feudal charters, and contain no numbers or -other indication where one provision ends and another begins. Strictly -speaking, Magna Carta has thus no chapters: these are a modern -invention, made for convenience of reference. - -III. _The Articles of the Barons._ Of hardly inferior historical -interest to these four original copies of the Great Charter is the -parchment which contains the heads of the agreement made between John -and the rebels on 15th June, 1215, from which the Charter was afterwards -expanded. The parchment containing these heads, known as the Articles of -the Barons, is now in the British Museum, cited officially as “Donation -MSS. 4838.” The seven centuries which have passed over it have left -surprisingly few traces; it is quite legible throughout, and still bears -the impression of John’s great seal in brown wax. It is probable that -this document may have passed with other English records into the hands -of Prince Louis during the civil war which followed close on the -transaction at Runnymede; that it was handed over to the Regent William -Marshal in terms of the Treaty of Lambeth concluded in September, 1217; -and that thereafter it was deposited in Lambeth Palace, where it -remained until the middle of the seventeenth century. Archbishop Laud -seems to have been aware of its historical interest, as he placed it -among the more precious documents in his keeping. When threatened with -impeachment by the Long Parliament, he thought it prudent to set his -papers in order; and on 18th December, 1640, he dispatched for that -purpose to his episcopal palace, his friend Dr. John Warner, Bishop of -Rochester. - -There was indeed no time to lose; a few hours later, Laud was committed -to the custody of Black-Rod, and an official messenger was sent by the -House of Lords to seal up his papers. Bishop Warner had, however, -escaped with the Articles of the Barons before this messenger arrived; -he kept it till he died, and at his death it passed to one of his -executors named Lee, and from him to his son Colonel Lee, who presented -it to Gilbert Burnet, afterwards Bishop of Salisbury and author of the -famous _History of His Own Time_. When the Salisbury Magna Carta -disappeared, Burnet was suspected of appropriating it to his own uses. -The grounds which gave some apparent weight to the misrepresentations of -his political opponents were that special facilities had been granted to -him to search public records in the prosecution of his historical -labours, and that as matter of fact he actually had in his -possession—quite lawfully, as we now know—the Articles of the Barons, -which was confused by the carelessness of early historians with Magna -Carta itself. The calumny was so widely spread that Burnet thought it -necessary formally to refute it, explaining that he had received the -Articles as a gift from Colonel Lee. “So it is now in my hands, and it -came very fairly to me.” - -Bishop Burnet left it as a legacy to his son Sir Thomas Burnet; and on -his death it passed to his executor David Mitchell, whose permission to -print it Blackstone obtained in 1759. Shortly thereafter it was -purchased from Mr. Mitchell’s daughter by another great historian, -Philip, second Earl of Stanhope, and by him it was presented to the -British Museum in 1769. It is now exhibited to the public along with the -two Cottonian copies of Magna Carta. The Record Commissioners have -reproduced it in facsimile in _Statutes of the Realm_ in 1810, and also -in the _New Rymer_ in 1816.[302] - ------ - -Footnote 302: - - Reproductions of it, as well as of the second Cottonian version of the - Charter, are sold by the authorities of the British Museum at the - price of 2s. 6d. - ------ - -The document begins with this headline: “_Ista sunt Capitula quae -Barones petunt et dominus Rex concedit._” Then the articles follow in 49 -paragraphs of varying length, separate, but unnumbered, each new chapter -(unlike the chapters of Magna Carta, which run straight on as befits its -character as a charter) beginning a new line. The numbers which -invariably appear in all printed editions have no warrant in the -original. - -A blank space sufficient for two lines of writing occurs between -paragraphs 48 and 49, indicating perhaps that the last chapter, which -contains the revolutionary provision for the appointment of the -twenty-five Executors, had been added as an after-thought. Chapters 45 -and 46 are connected by a rude bracket, and a clause is added in the -same hand as the rest, but more rapidly, modifying the provisions of -both in the King’s favour. This, at least, is clearly an -after-thought.[303] - ------ - -Footnote 303: - - _Cf. supra_, p. 47, and Blackstone, _Great Charter_, xvii. - ------ - -IV. _The so-called “unknown Charter of Liberties.”_ Among the French -archives there is preserved the copy of what purports to be a charter -granted by King John, but irregular in its form. This document is -preserved among the _Archives du Royaume_ in the _Section Historique_ -and numbered J. 655.[304] A copy of this copy was discovered at the -Record Office in London by Mr. J. Horace Round in 1893, previous to -which date it seems to have been practically unknown to English -historians, although it had been printed by a French writer thirty years -earlier.[305] Mr. Round communicated his discovery of this “unknown -charter of liberties” to the _English Historical Review_, in the pages -of which there ensued a discussion as to its nature and validity, -inaugurated by him. Three theories were suggested: (_a_) Mr. Round -maintained that the document was a copy, in a mangled form perhaps, of a -charter actually granted in the year 1213 by King John to the northern -barons, containing concessions which they had agreed to accept in -satisfaction of their claims.[306] (_b_) Mr. Prothero preferred to view -it, not as an actually executed charter, given and accepted in -settlement of the various claims in dispute, but rather as an abortive -proposal made by the King early in 1215 and rejected by the barons.[307] -(_c_) Mr. Hubert Hall dismissed the document as a forgery, and described -it as "a coronation charter attributed to John by a French scribe in the -second decade of the thirteenth century"—probably between November, -1216, and March, 1217, when King Philip desired to prove that John had -committed perjury by breaking his promises, and had thereby forfeited -his right to the Crown of England.[308] - ------ - -Footnote 304: - - See the account given by Mr. Hubert Hall, _English Historical Review_, - IX. 326. - -Footnote 305: - - Alexandre Teulet, _Layettes du Trésor_, I. p. 423 (1863). - -Footnote 306: - - _Engl. Hist. Rev._, VIII. 288-294. - -Footnote 307: - - _Ibid._, IX. 117-121. - -Footnote 308: - - _Ibid._, IX. 326-335. - ------ - -Mr. Hall describes the method of procedure adopted by the compiler of -this supposed forgery. Placing in front of him copies of Henry I.’s -Charter of Liberties and of Henry III.’s charters issued in 1216-17, he -proceeded to select from these sources whatever suited his purpose, and -thereafter “either by design or carelessness, or ignorance of English -forms, he altered the wording of both his originals so as to produce the -effect of a paraphrase interspersed with archaisms.” This extremely -ingenious theory is not entirely convincing. Not to insist on the number -of unproved inferences on which it is based, it seems to have one grave -defect—it ignores the absurdity of attempting to obtain credence for -such a clumsy composition, especially when it was well known that John -had never granted a coronation charter at all. Even if a skilful forger -could have utilized the document as the basis for a completed charter, -this would still have required the impress of John’s great seal to give -it validity. Such an imposture could not be seriously intended to impose -on any one. - -A fourth theory may be suggested very tentatively, namely, that the -document in question is a copy of the actual schedule drawn up by the -barons previous to 27th April, 1215. That such a schedule existed we -know from the express declaration of Roger of Wendover,[309] who informs -us that it was sent to the King with the demand that his seal should be -forthwith placed to it, under threat of civil war. From this, it is safe -to infer that the schedule, as it left the barons’ hands, was ready for -execution; but lack of experience in drawing up Crown charters would -prevent them from producing an entirely regular instrument. They would -assuredly take as their model the charter of Henry I., which had helped -to give definiteness of aim to all their efforts. It would be necessary, -however, to bring this up to date, by additions which we might _a -priori_ expect to resemble the provisions afterwards adopted with more -elaboration in the agreement made at Runnymede. This schedule, then, -rapidly thrown together, would be likely to contain many of the -characteristics actually discovered by Mr. Hall in the document under -discussion. Such an identification of the “unknown Charter of Liberties” -with the schedule of 27th April, 1215, would explain all the features -emphasized by Mr. Hall—the archaisms, the erroneous style, and the -employment, first of the third person singular, and then of the first -person singular, instead of using throughout the first person plural -invariably used by John. It would also explain why the first half of the -parchment on which the “unknown charter” is written, contains a copy of -Henry I.’s charter, and why the two possess so many features in common. - ------ - -Footnote 309: - - R. Wendover, III. 298, and _cf. supra_, p. 40. - ------ - -It would clearly be inadvisable to found any conclusions upon the terms -of a document, the nature and authenticity of which form the subject of -so many rival theories; but even if further investigation proves it to -be a forgery, a forgery of contemporary date may throw light on -otherwise obscure passages in genuine charters. One or two instances of -this will be found in the sequel. - - II. Previous Editions and Commentaries. - -Every general history of England and almost every book which has ever -appeared on English law has had something to say by way of commentary on -Magna Carta. It is perhaps for this very reason that exceedingly few -treatises have been devoted exclusively to its elucidation. While -edition after edition of the text of the Charter, or of its re-issues, -have appeared, few of these have been accompanied by explanations -however brief. The paucity of attempts to explain the meaning of the -Charter is almost more remarkable than the frequency with which the text -has been reproduced. Magna Carta is a document often printed, but seldom -explained. - -I. _Printed Editions of the Text of Magna Carta._ Previous to 1759 even -the best informed writers on English history laboured under much -confusion in regard to the various charters of liberties. Few of them -seem to have been aware that fundamental differences existed between the -original charter granted by John and the re-issues of Henry III. Much of -the blame for this confusion must be borne by Roger of Wendover, who, in -his account of the transactions at Runnymede, incorporated, in place of -John’s Charter, the text of the two charters granted by Henry.[310] - ------ - -Footnote 310: - - R. Wendover, III. 302-318. - ------ - -The early historians were content to rely either on this version or on -that contained in the _Inspeximus_ of Edward I. Thus, in all early -printed collections of statutes, the text which professes to represent -the original Charter follows in reality the words of Henry’s third -re-issue. The very earliest printed edition of Magna Carta seems to have -been that published on 9th October, 1499, by Richard Pynson, the King’s -printer,[311] and a contemporary of Wynkyn de Worde. This was not, of -course, John’s Charter, but followed Edward’s _Inspeximus_ of Henry’s -Charter of 1225. - ------ - -Footnote 311: - - This date is given by Bémont, _Chartes_, lxxi., but Robert Watt in his - _Bibliotheca Britannica_, Thomson, _Magna Charta_, 450, and Lowndes, - _Bibliographer’s Manual_, 1449, all give the date of the earliest - edition as 1514. Bémont, lxxi., and Thomson, 450–460, Watt, and - Lowndes furnish details of the various editions of Pynson, Redman, - Berthelet, Tottel, Marshe, and Wight, from 1499 to 1618. All of these - are now superseded by the _Statutes of the Realm_, published by the - Record Commission in 1810. - ------ - -Since the middle of the eighteenth century, many editions of the text of -John’s Great Charter have been published, either alone or along with the -text of the various re-issues of the reign of Henry III.; but it seems -unnecessary to mention more than four of these. - -(1) In 1759 appeared Sir William Blackstone’s scholarly work entitled -_The Great Charter and The Charter of the Forest_, containing accurate -texts of all the important issues of the Charters of Liberties carefully -prepared from the original manuscripts so far as these were known to -him.[312] - ------ - -Footnote 312: - - The substance of this admirable edition, now unhappily scarce, has - been reproduced in the same author’s _Tracts_ (1762). - ------ - -(2) In some respects the Record Commissioners have improved even on -Blackstone’s work in their edition of the _Statutes of the Realm_, -published in 1810. A special section of the volume is devoted to -Charters of Liberties, where not only the grants of John and Henry III., -but also the charters which led up to them, and their subsequent -confirmations, have received exhaustive treatment. - -(3) A carefully revised text, _Magna Carta regis Johannis_, was -published by Dr. Stubbs in 1868; and the various charters are also to be -found, arranged in chronological order, in his well-known volume, first -published in 1870, entitled _Select Charters and other illustrations of_ -_English Constitutional History_, a convenient collection easily -accessible to all students of law and history. - -(4) For the continuous study of the sequence of charters, the best book -of reference is _Chartes de Libertés Anglaises_ by M. Charles Bémont -published in 1892, in the pages of which the various editions of John’s -and Henry’s charters will be found in a form convenient for comparison -with each other, and with previous and succeeding documents. - -II. _Commentaries and Treatises._ It is doubtful whether any good -purpose would be served by the preparation of a list of all the books -which contain casual references to Magna Carta or to its provisions; and -it is clear that the task would be an extremely burdensome one. There is -no difficulty, however, in naming the few treatises of outstanding merit -which have been exclusively or mainly devoted to the exposition of the -Great Charter. Of these only nine require special mention. - -(1) The mysterious medieval lawbook known as the _Mirror of Justices_ -contains a chapter upon Magna Carta which has some claims to rank as a -commentary, although it represents the opinions of a political -pamphleteer rather than those of an unbiassed judge. The date of this -treatise is still the subject of dispute. It has been usual to place it -not earlier than the years 1307-27, mainly because it makes mention of -“Edward II.” Prof. Maitland, however, dates it earlier, maintaining on -general grounds that it was “written very soon after 1285, and probably -before 1290.”[313] He explains the reference to “Edward II.” as applying -to the monarch now generally known in England as Edward I., but -sometimes in his own reign known as Edward II., to distinguish him from -an earlier Edward, still enshrined in the popular imagination, namely, -Edward Confessor. Mr. Maitland is not disposed to treat this work of an -unknown author too seriously, and warns students against “his ignorance, -political bias, and deliberate lies.”[314] - ------ - -Footnote 313: - - See _The Mirror of Justices_ (edited for the Selden Society by Prof. - Maitland), _Introd._, xxiii. to xxiv. - -Footnote 314: - - _Ibid._, xxxvii. _Cf._ xlviii. - -(2) Dismissing the _Mirror_, then, as a dangerous and possibly -disingenuous guide, the earliest serious commentary known to exist is -that of Sir Edward Coke, formerly Lord Chief Justice. This elaborate -treatise, forming the second of Coke’s four _Institutes_, was published -in 1642 under direction of the Long Parliament, the House of Commons -having given the order on 12th May, 1641.[315] - ------ - -Footnote 315: - - See _Dictionary of National Biography_, XI. 243. - ------ - -Although this commentary, like everything written by Coke, was long -accepted as a work of great value, its method is in reality entirely -uncritical and unhistorical. The great lawyer reads into Magna Carta the -entire body of the common law of the seventeenth century of which he was -admittedly a master. He seems almost unconscious of the great changes -accomplished by the experience and vicissitudes of the four eventful -centuries which had elapsed since the Charter had been originally -granted. The various clauses of Magna Carta are thus merely occasions -for expounding the law as it stood, not at the beginning of the -thirteenth century, but in his own day. In the skilful hands of Sir -Edward, the Great Charter is made to attack the abuses of James or -Charles, rather than those of John or Henry, which its framers had in -view. In expounding the _judicium parium_, for example, he carefully -explains many minute details of procedure before the Court of the Lord -High Steward, and describes elaborately the nature of the warrants to be -issued prior to the arrest of any one by the Crown; while, in the clause -of Henry’s Charter which secures an open door to foreign merchants in -England “unless publicly prohibited,” he discovers a declaration that -Parliament shall have the sole power to issue such prohibitions, -forgetful that the regulation of trade was an exclusive prerogative of -the Crown with which Parliament had no right to interfere for many -centuries subsequent to the reign of Henry III. - -(3) In 1680 Mr. Edward Cooke, barrister, published a small volume -entitled _Magna Charta made in the ninth year of King Henry III. and -confirmed by King Edward I. in the twenty-eighth year of his reign_. -This contained a translation of Henry’s Magna Carta with short -explanatory notes founded mainly on the commentary of Sir Edward Coke. -In his Preface, Mr. Cooke declared that his object was to make the Great -Charter more accessible to the public at large, since, as he said, “I am -confident, scarce one of a hundred of the common people, know what it -is.” - -(4) Sir William Blackstone’s _Introduction_ to his edition of the -charters, published in 1759, as already mentioned, contains valuable -information as to the documents he edits; but he explicitly disclaims -all intention of writing a Commentary. He is careful to state “that it -is not in his present intention, nor (he fears) within the reach of his -abilities, to give a full and explanatory comment on the matters -contained in these charters.”[316] - ------ - -Footnote 316: - - Introduction, p. ii. - ------ - -(5) The Hon. Daines Barrington published in 1766 his _Observations upon -the Statutes from Magna Charta to 21 James I._ This book contains some -notes on the Charter also founded chiefly upon Coke’s _Second -Institute_; his original contributions are not of outstanding value. - -(6) In 1772 Prof. Francis Stoughton Sullivan gave to the public his -course of lectures previously delivered in the University of Dublin -under the title _An Historical Treatise on the Feudal Law, with a -Commentary on Magna Charta_. The author’s own words give a sufficiently -accurate conception of its scope and value: “I shall therefore proceed -briefly to speak to _Magna Charta_, and in so doing shall omit almost -all that relates to the feudal tenures, which makes the greatest part of -it, and confine myself to that which is now law.”[317] - ------ - -Footnote 317: - - See p. 375 of the work cited. - ------ - -(7) Mr. John Reeves’ invaluable _History of English Law_, the first -edition of which appeared in 1783-84, marked the commencement of a new -epoch in the scientific study of the genesis of English law. Treating -incidentally of Magna Carta, he shows wonderful insight into the real -purport of many of its provisions, but the state of historical knowledge -when he wrote rendered many serious errors inevitable. - -(8) In 1829, Mr. Richard Thomson published an elaborate edition of the -charters combined with a commentary which contains much useful -information, but makes no serious attempt to supplement the unhistorical -explanations of Sir Edward Coke by the results of more recent -investigations in the provinces of law and history. His work is a -storehouse of information which must, however, be used with caution. - -(9) In many respects, the most valuable contribution yet made to the -elucidation of the Great Charter is that contained in M. Charles -Bémont’s preface to his _Chartes des Libertés Anglaises_, published in -1892. Although he has subjected himself to the severe restraints imposed -by the slender size of his volume and by a rigid desire to state only -facts of an undisputed nature, leaving theories strictly alone; he has, -nevertheless, done much to help forward the study of the charters. In -particular he has performed an important service by insisting upon the -close mutual connection between the various Charters of Liberties, from -that of Henry I. down to the confirmations of Edward I., and of -subsequent kings. It is doubtful, however, whether by this very -insistence upon the gradual process of development which may be traced -in this long series, he does not lay himself open to the misconception -that he takes too narrow a view of the scope and relations of the -Charter. Magna Carta’s points of contact with the past and future -history of English liberties and English laws and institutions must not -be narrowed down to those occurring in one straight line. Its -antecedents must not be looked for exclusively among documents couched -in the form of charters, nor its results merely in their subsequent -confirmations. It is impossible to understand it aright, except in close -relation to all the varied aspects of the national life and the national -development. Every Act appearing on the Statute Rolls is, in a sense, an -Act amending Magna Carta; while such enactments as the Statute of -Marlborough and the Statute of Westminster I. have as intimate a -connection with John’s Great Charter as the _Confirmatio Cartarum_ or -the _Articuli super Cartas_ have. This is a truth which M. Bémont -undoubtedly recognizes, though the scheme of his book led him rather to -emphasize another and, at first sight, contradictory aspect of his -subject. His object was not to explain the numerous ways in which the -Charters of Liberties are entwined with the whole of English history, -but merely to furnish a basis for the accurate study of one of their -most important features. His book is indispensable, but is not intended -to form, in any sense, a commentary on Magna Carta. - -It would thus appear that only two serious attempts have been made to -produce treatises forming, explicitly and exclusively, commentaries on -the Great Charter, namely the _Second Institute_ of Coke and the -laborious and useful work of Mr. Richard Thomson. Since Mr. Thomson’s -_Magna Charta_ appeared, three-quarters of a century have passed, -marking an enormous advance in historical and legal science; yet the -results of modern research, so capable of throwing light on the -subject-matter of the Great Charter, have never been systematically -brought to bear upon it. Dr. Stubbs, from whom such a work would have -been especially welcome, contented himself with giving a paraphrase or -abstract of the Charter, rendering into English equivalents as literally -as possible the actual words of his Latin text—a cautious course, which -cannot lead his disciples astray, but leaves them to the guidance of -their own ignorance rather than of his knowledge. The reason given by -Dr. Stubbs for keeping silence is rather the excess than the absence of -information. “The whole of the constitutional history of England,” he -tells us, “is little more than a commentary on Magna Carta.”[318] It is -for this reason, presumably, that he refrains from all explanations and -confines himself to an abstract of its main provisions. While thus many -invaluable hints may be obtained from the pages of the three volumes of -his history, and from his other works, Dr. Stubbs has not in any of his -published writings contributed anything of the nature of a direct -commentary upon John’s Great Charter. In this policy, he has been -followed by the members of the great modern school of English historians -of which he is the founder.[319] - ------ - -Footnote 318: - - See _Const. Hist._, I. 572, and cf. _Select Charters_, 296. - -Footnote 319: - - One of the most brilliant members of that school, Mr. Prothero, whose - power of rendering difficult subjects both lucid and interesting would - specially have qualified him for the task of explaining Magna Carta, - declines the task partly upon the ground that it would be impossible - "to throw any new light on a subject exhausted by the ablest - writers."—_S. de Montfort_, p. 14. - ------ - -Many valuable hints may be obtained from other writers such as Dr. -Gneist, Sir Edward Creasy, Mr. Taswell Langmead, Dr. Hannis Taylor, Miss -Norgate, and Sir James Ramsay,[320] but their efforts to explain the -meaning of the Great Charter take the form of disconnected notes, rather -than of exhaustive commentaries.[321] - ------ - -Footnote 320: - - The works of these and other authors are mentioned in the Appendix. - -Footnote 321: - - It is unnecessary to do more than mention _A Historical Treatise on - Magna Charta_ by Mr. Boyd C. Barrington, of the Philadelphia Bar - (1899), of which the author says (p. ii.): “No claim is made for - originality, but solely for research, which has been exhaustive in - every line I can pursue.” It is dismissed by his distinguished - fellow-countryman, Dr. Gross (_Sources and Literature of English - History_, p. 348), as “of little value.” - ------ - - TEXT, TRANSLATION, AND COMMENTARY. - - MAGNA CARTA. - - PREAMBLE.[322] - -Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et -Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, -comitibus, baronibus, justiciariis, forestariis, vicecomitibus, -prepositis, ministris et omnibus ballivis et fidelibus suis salutem. -Sciatis nos intuitu Dei et pro salute anime nostre et omnium -antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte -Ecclesie, et emendacionem regni nostri, per consilium venerabilium -patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie -primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis -archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini -Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri -Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis -episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris, -fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum -Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie, -Willelmi comitis Warennie, Willelmi comitis Arundellie, Alani de -Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii -Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla, -Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de -Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii -Hugonis et aliorum fidelium nostrorum. - ------ - -Footnote 322: - - The division of Magna Carta into a preamble and sixty-three chapters - is a modern device, for convenience of reference, for which there is - no warrant in the Charter itself. Cf. _supra_, 200. No title or - heading precedes the substance of the deed in any one of the four - known originals, but on the back of the Lincoln one (cf. _supra_, 197) - these words are endorsed;—“_Concordia inter Regem Johannem et Barones - pro concessione libertatum ecclesie et regni Anglie_.” The form of the - document is discussed _supra_, 123-9. The text is taken from that - issued by the Trustees of the British Museum founded on the Cottonian - version No. 2. Cf. _supra_, 196. - - John, by the grace of God, king of England, lord of Ireland, duke of - Normandy and Aquitaine, and count of Anjou, to the archbishops, - bishops, abbots, earls, barons, justiciars, foresters, sheriffs, - stewards, servants, and to all his bailiffs and liege subjects, - greeting. Know that, looking to God and for the salvation of our soul, - and those of all our ancestors and heirs, and unto the honour of God - and the advancement of holy Church, and for the reform of our realm, - [we have granted as underwritten][323] by advice of our venerable - fathers, Stephen, archbishop of Canterbury, primate of all England and - cardinal of the holy Roman Church, Henry archbishop of Dublin, William - of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh - of Lincoln, Walter of Worcester, William of Coventry, Benedict of - Rochester, bishops; of master Pandulf, subdeacon and member of the - household of our lord the Pope, of brother Aymeric (master of the - Knights of the Temple in England), and of the illustrious men,[324] - William Marshall, earl of Pembroke, William, earl of Salisbury, - William, earl Warenne, William, earl of Arundel, Alan of Galloway, - (constable of Scotland), Waren Fitz Gerald, Peter Fitz Herbert, Hubert - de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, - Thomas Basset, Alan Basset, Philip of Albini, Robert of Ropesle, John - Marshall, John Fitz Hugh, and others, our liegemen. - - ------ - -Footnote 323: - - The sentence is concluded in chapter one (see _infra_)—the usual - division, here followed, being a purely arbitrary one. - -Footnote 324: - - The phrase “_nobiles viri_” was not used here in any technical sense; - the modern conception of a distinct class of “noblemen” did not take - shape until long after 1215. Cf. what is said of “peerage” under cc. - 14 and 39. - ------ - -The Great Charter of John opens, in the form common to all royal -charters of the period, with a greeting from the sovereign to his -magnates, his officials, and his faithful subjects, and announces, in -the pious legal formula used by impious and pious kings alike, that he -had made certain grants by the advice of those counsellors whom he -names. Three features of this preamble call for comment. - -I. _The King’s Title._ Some points of interest are suggested by the form -of the royal style adopted by John, which is connected by an unbroken -thread of development with that of William I. on the one hand, and of -His Majesty, Edward VII., on the other. John’s assumption of the royal -plural “_Sciatis Nos_” reads, in the light of subsequent history, as a -tribute to his arrogance rather than to his greatness, when compared -with the humbler first person singular consistently used by his more -distinguished father. In this particular, however, Richard, not John, -had been the innovator on the usage of Henry II.[325] For a further -alteration in the royal style John was alone responsible. To the titles -borne by his father and brother, John invariably added that of “lord of -Ireland,” a reminiscence of his youth. When the wide territories of -Henry II., had been distributed among his elder sons, the young John -(hence known as “John Lackland”) was left without a heritage, until his -father bestowed on him the island of Ireland, recently appropriated; and -this brought with it the right to style himself “_dominus Hibernie_.” -This title of his younger days was not unnaturally retained by him after -he had outlived all his brothers and inherited their wide lands and -honours. - ------ - -Footnote 325: - - Coke (_Second Institute_, pp. 1-2) is here in error; he makes John the - innovator. - ------ - -John began his reign in 1199 as ruler over the undivided possessions of -the House of Anjou at their widest stretch, extending without a break, -other than the waters of the Channel, from the Cheviots to the Pyrenees. -These lands were held by John, as by his father, under a variety of -titles and conditions. Anjou, the original home and fief of the -hot-blooded Plantagenet race, still carried with it only the modest rank -of count. In addition to this paternal title, Henry II. had, at an early -age, become duke of Normandy in his mother’s right, and thereafter duke -of Aquitaine by marriage with Eleanor, its heiress. These three great -fiefs were held by Henry and his sons under the king of France as their -lord paramount. Long before 1215, John’s bad fortune or incompetence had -lost to him these wide continental dominions except the most distant of -them all, his mother’s dowry of Aquitaine. His ancestral domains of -Anjou and Normandy had been irretrievably lost, but he still retained -their empty titles; and in this his son Henry III. followed him, -grasping the shadow long after the substance had fled. Entries relating -to Gascony frequently appear on the Rolls of Parliament of Edward I.; -and the kings of England were styled dukes of Aquitaine, dukes of -Guienne, or dukes of Gascony (the three descriptions being used -indifferently) until Edward III. merged all these titles in a wider one, -when he claimed the throne of France. - -England alone, of John’s possessions, real and nominal, was held by the -higher style of “_Rex_,” implying strictly sovereign rule, independent -of any overlord, and retained by John in 1215 in spite of his recent -acceptance of Innocent III. as feudal overlord. Of Ireland, John was -still content to describe himself, as formerly, “lord,” not king. The -exact meaning of the word “_Dominus_” in medieval charters, particularly -in those of Stephen, has been made the subject of much learned -controversy; which has not yet resulted in a consensus of opinion as to -the technical meaning, if any, borne by the word.[326] “_Dominus_,” -indeed, seems to have been loosely used wherever something of substance -or of ceremonial was lacking from the full sovereignty implied in the -more specific name of king. In this connection much stress was laid on -the solemn sacrament of coronation, implying among other things formal -consecration by the church.[327] - -Footnote 326: - - Various theories will be found in Round’s _Geoffrey de Mandeville_, - 70; Dr. Rüssler’s _Matilde_, 291–4; and Ramsay’s _Foundations of - England_, II. 403. - -Footnote 327: - - Cf. _supra_, p. 119. - ------ - -John’s connection with England, then, is expressed in two simple words, -“_Rex Anglie_,” no explanation being vouchsafed of how he had acquired -this title. Such vindication, indeed, was not called for, as this was no -coronation charter, John having already reigned for fifteen years -without any serious rival—the claims of Arthur, the son of his elder -brother Geoffrey, never having been taken seriously in England.[328] The -simple words, “_Dei gratia rex Anglie_,” may be contrasted with the -detailed titles set out in the coronation charters of Henry I. and -Stephen respectively. Henry I. in 1100 had emphasized his relationship -to preceding kings, describing himself as “_Filius Willelmi regis post -obitum fratris sui Willelmi, Dei gracia rex Anglorum_”;[329] while -Stephen in April, 1136, in his second and more deliberate charter, used -an entirely different formula, “_Dei gracia assensu cleri et populi in -regem Anglie electus, et a Willelmo Cantuarensi archiepiscopo et sancte -Romane ecclesie legato consecratus, et ab Innocentio sancte Romane sedis -pontifice postmodum confirmatus_,”[330] the laboured nature of which -betrays the consciousness of weakness. - ------ - -Footnote 328: - - Geoffrey’s daughter Eleanor was in 1215, a prisoner in Corfe Castle. - See _infra_, c. 59. - -Footnote 329: - - See Appendix. - -Footnote 330: - - See Appendix. - ------ - -Thus Henry I. and Stephen each laid stress on the strong points of his -title and ignored its defects. These two claims of kingship express, in -a crude form, two rival theories of the title to the English Crown—(1) -hereditary succession, and (2) election. Neither of these is an accurate -reflection of the full theory and practice of the twelfth century, which -blended both principles in proportions not easy to define with accuracy. -Professor Freeman has pushed to excess the supposed right of the -Witenagemot to elect the king, and has transferred wholesale to the -Norman _Curia_ (which, in some respects, took its place) all the powers -enjoyed by its forerunner. A recent German writer, Dr. Oskar -Rössler,[331] has gone equally far in the opposite direction, flatly -denying that the Normans ever admitted the elective element at all. The -theory now usually held is a mean between these extremes, namely that -the Norman _Curia_ (or the chief magnates who usually composed it) had a -limited right of selecting among the sons, brothers, or near relations -of the last king, the individual best suited to succeed him. Such a -right, never authoritatively enunciated, gradually sank to an empty -formality. Its place was taken, to some extent, by the successful -assertion by the spiritual power (usually represented by the archbishop -of Canterbury), of a claim to give or withhold the consecrating oil -which accompanied the church’s blessing. Without this no _dominus_ could -be recognized as _rex_. On this theory the descriptions of their own -titles given by Henry I. and Stephen were alike incomplete: each ignored -the facts which did not suit him. John, on the contrary, secure in -possession, condescends on no particulars, but contents himself with the -terse assertion of the fact of his kingship: “_Johannes, dei gratia, Rex -Anglie_.” - ------ - -Footnote 331: - - _Matilde_, _passim_. - ------ - -II. _The Names of the Consenting Nobles._ It was natural that the -Charter should place formally on record the assent of those counsellors -who attended John when he made terms with his enemies, of those magnates -who remained in at least nominal allegiance, and were therefore capable -of acting as the mediators by whose good offices peace was for a time -restored.[332] The leading men in England during this crisis may be -arranged in three groups: (1) the leaders of the great host openly -opposed to John at Runnymede; (2) the agents of John’s oppressions, -extreme men, mostly aliens, many of whom were in command of royal -castles or of mercenary levies ready to take the field; and (3) moderate -men, mostly churchmen or John’s ministers or relations, who, whatever -their sympathies might be, remained in allegiance to the king and helped -to arrange terms of peace—a comparatively small band, as the paucity of -names recited in Magna Carta testifies.[333] The men, here made -consenters to John’s grant of Magna Carta, are again referred to, though -not by name, in chapter 63, in the character of witnesses. - ------ - -Footnote 332: - - Dr. Stubbs, _Const. Hist._, I. 582, gives the motive of thus naming - them as “the hope of binding the persons whom it includes to the - continued support of the hard-won liberties.” Those named were all - moderate men. M. Paris (_Chron. Maj._ II., 589) describes them as - “_quasi ex parte regis_,” while Ralph of Coggeshall (p. 172) narrates - how “by the intervention of the Archbishop of Canterbury, with a few - of his bishops and some barons, a kind of peace was made.” Cf. _Annals - of Dunstable_, III. 43. The neutrality of the prelates is proved by - other evidence. (_a_) C. 62 gave them authority to certify by letters - testimonial the correctness of copies of the Charter. (_b_) The 25th - of the Articles of the Barons left to their decision whether John - should enjoy a crusader’s privileges; while c. 55 gave Langton a - special place in determining what fines were unjust. (_c_) The Tower - of London was placed in the custody of the archbishop as a neutral man - whom both sides could trust. (_d_) Copies are preserved of two - protests on different subjects by the prelates in favour of the king. - See Appendix. - -Footnote 333: - - Cf. _supra_, 43–4, and for biographical information see authorities - there cited. - ------ - -III. _The Reasons of the Grant._ The preamble contains also a statement -of what purport to be John’s reasons for conceding the Charter. These -are quaintly paraphrased by Coke:[334] "Here be four notable causes of -the making of this great charter rehearsed. 1. The honour of God. 2. For -the health of the King’s soul. 3. For the exaltation of holy church, and -fourthly, for the amendment of the Kingdom." The real reason must be -sought in another direction, namely, in the army of the rebels; and John -in after days did not scruple to plead consent given under threat of -violence, as a reason for voiding his grant. The technical legal -“consideration,” the _quid pro quo_ which John received as the price of -this confirmation of their liberties was the renewal by his opponents of -the homage and fealty which they had solemnly renounced. This -“consideration” was not stated in the charter, but the fact was known to -all.[335] - ------ - -Footnote 334: - - _Second Institute_, 1, n. - -Footnote 335: - - Cf. _supra_, 41. - ------ - - - - - CHAPTER ONE. - - -In primis concessisse Deo et hac presenti carta nostra confirmasse, pro -nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera -sit, et habeat jura sua integra, et libertates suas illesas; et ita -volumus observari; quod apparet ex eo quod libertatem electionum, que -maxima et magis necessaria reputatur ecclesie Anglicane, mera et -spontanea voluntate, ante discordiam inter nos et barones nostros motam, -concessimus et carta nostra confirmavimus, et eam obtinuimus a domino -papa Innocencio tercio confirmari; quam et nos observabimus et ab -heredibus nostris in perpetuum bona fide volumus observari.[336] -Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et -heredibus nostris in perpetuum, omnes libertates subscriptas, habendas -et tenendas eis et heredibus suis, de nobis et heredibus nostris. - ------ - -Footnote 336: - - Some editions of the Charter place here the division between c. 1 and - c. 2. - - In the first place we have granted to God, and by this our present - charter confirmed for us and our heirs for ever that the English - church shall be free, and shall have her rights entire, and her - liberties inviolate; and we will that it be thus observed; which is - apparent from this that the freedom of elections, which is reckoned - most important and very essential to the English church, we, of our - pure and unconstrained will, did grant, and did by our charter confirm - and did obtain the ratification of the same from our lord, Pope - Innocent III., before the quarrel arose between us and our barons, and - this we will observe, and our will is that it be observed in good - faith by our heirs for ever. We have also granted to all freemen of - our kingdom, for us and our heirs forever, all the underwritten - liberties, to be had and held by them and their heirs, of us and our - heirs forever. - - -This first of the sixty-three chapters of Magna Carta here places side -by side, bracketed equal as it were, (_a_) a general confirmation of the -privileges of the English national church, and (_b_) a declaration that -the various civil rights to be afterwards specified in detail were -granted “to all freemen” of the kingdom and to their heirs for ever. The -manner of this juxtaposition of the church’s rights with the lay rights -of freemen, suggests an intention to make it clear that neither group -was to be treated as of more importance than the other. If the civil and -political rights of the nation at large occupy the bulk of the Charter, -and are defined in their minutest details, the church’s rights, of which -no mention whatever had been made in the Articles of the Barons, receive -here a prior place.[337] A twofold division thus suggests itself. - ------ - -Footnote 337: - - Cf. _supra_, p. 50. - ------ - -I. _The rights of the National Church._ A general promise that the -English church should be free was accompanied by a special confirmation -of the separate charter recently granted guaranteeing freedom of -canonical election. (1) _Quod Anglicana ecclesia libera sit._ This -emphatic, if vague declaration, which has no counterpart in the Articles -of the Barons, is repeated twice in Magna Carta, each time in a -prominent position, at the beginning and the end respectively. If the -work of the barons showed no special tenderness for churchmen’s -privileges, Stephen Langton and his bishops were careful to have that -defect remedied in the formal document by which John expressed his final -consent. In extorting this promise of a “free” English church, the -prelates seem to have been satisfied that they need ask for nothing -more; the other particulars in which the Charter differs from its draft -show no trace of clerical bias. The phrase used, indeed, was deplorably -vague and elastic; it scarcely needed stretching to cover the widest -encroachments of clerical arrogance. Yet the formula was by no means a -new one; Henry I. and Stephen had successively confirmed the claim of -holy church to its freedom.[338] - ------ - -Footnote 338: - - See these charters in Appendix. - -Henry II. was careful to avoid making any such promises: his whole reign -was an effort, not unsuccessful in spite of the terrible disadvantage at -which he was placed by the murder of Becket, to deprive the church of -what her leaders considered her legitimate “freedom.” John in 1215, -however, receded from the ground occupied by his father, confirming by -the Great Charter the promise given by the weakest of his Norman -predecessors, in a phrase repeated in all subsequent confirmations. - -It by no means follows that “freedom of the church,” as promised by -Stephen, meant exactly the same thing as “freedom of the church” -promised by John and his successors.[339] The value to be attached to -such assurances varied in inverse ratio to the strength of the kings who -made them, and this is well illustrated by a comparison of the charters -of Henry I., Stephen, and John. Henry qualifies the phrase by words -which illustrate if they do not limit its application. God’s holy church -was to be free “_so that_ I shall neither sell nor let to farm, nor on -the death of archbishop, bishop, or abbot, accept anything from the -demesne of the church or from its tenants, until his successor has -entered into possession.”[340] This suggests a somewhat narrow -interpretation of the church’s freedom—exemption mainly from the -iniquities of Rufus. Stephen’s charter, on the contrary, explains or -supplements the same phrase by definite declarations that the bishops -should have sole jurisdiction over churchmen and their goods, and that -all rights of wardship over church lands were renounced, thus making it -a “large and dangerous promise.”[341] - ------ - -Footnote 339: - - It is perhaps worthy of note that while the charters of Henry I. and - Stephen spoke only of “holy church,” John speaks of the “English - church.” This change suggests a growth of patriotism among the - prelates, led by Stephen Langton. - -Footnote 340: - - Cf. _supra_, 117. - -Footnote 341: - - Cf. Pollock and Maitland, I. 74. - -“Freedom of the church” had thus come in 1136 to include “benefit of -clergy” in a specially sweeping form, and much besides.[342] It is easy -to understand why churchmen cherished an elastic phrase which, wide as -were the privileges it already covered, might readily be stretched -wider. Laymen, on the contrary, contended for a more restrictive -meaning; and the Constitutions of Clarendon must be viewed primarily as -an attempt to arrive at definite conclusions on disputed points of -interpretation. Henry II. substantially held his ground, in spite of his -nominal surrender after Becket’s murder. Thanks to his firmness, "the -church’s freedom" shrank to more reasonable proportions, so that the -well-known formula, when repeated by John, was emptied of much of the -content found in it by Stephen’s bishops. If it still implied “benefit -of clergy” that phrase was now read in a more restricted sense, while -wardship over vacant sees was expressly reserved to the Crown by John. -Chapter 18 of Magna Carta accepted, apparently with the approval of all -classes, the principle that questions of church patronage (assizes of -darrein presentment)[343] should be settled before the King’s Justices, -a concession to the civil power inconsistent with the more extreme -interpretations formerly put by churchmen on the phrase.[344] - ------ - -Footnote 342: - - Cf. _supra_, 120–1. - -Footnote 343: - - For explanation see _infra_, c. 18. - -Footnote 344: - - On the other hand c. 22, which lays down special rules for the - amercement of beneficed clerks, to that extent confirmed class - privileges of the clergy. - ------ - -In later reigns the pretensions of the church to privileged treatment -were gradually reduced to narrow bounds, and the process of compression -was facilitated by that very elasticity on which the clergy had relied -as being favourable to the expansion of their claims. It was the civil -government which benefited in the end from the vagueness of the words in -which Magna Carta declared _quod Anglicana ecclesia libera sit_.[345] - ------ - -Footnote 345: - - Mr. J. H. Round (_Geoffrey de Mandeville_, 3), speaking of Stephen’s - “oath” to restore the church her “liberty,” describes this as “a - phrase the meaning of which is well known.” If “well” known, it was - known chiefly as something vague, something which baffled definition, - because churchmen and laymen could never agree as to its contents, - while it tended also to vary from reign to reign. Mr. Round attempts - no definition. Sir James Ramsay (_Angevin Empire_, p. 475), writing of - the phrase as used in John’s Charter, is less prudent. "It would - relieve the clergy of all lay control, and of all liability to - contribute to the needs of the State beyond the occasional scutages - due from the higher clergy for their knights’ fees." This definition - assuredly would not have satisfied Henry I., as a legitimate - interpretation of the words as used by him in his Charter of - Liberties. - -(2) _Canonical election._ A separate charter to the national church had -been granted on 21st November, 1214, and re-issued on 15th January, -1215.[346] Its tenor may be given in three words, “freedom of election.” -In all cathedral and conventual churches and monasteries, the -appointment of prelates was to be free from royal intervention for the -future, provided always that licence to fill the vacancy had first been -asked of the king. Now, _in words_, this was no new concession, but -merely a confirmation of the Concordat arrived at long before between -Henry I. and archbishop Anselm as a solution of the rival claims of -Church and State in the election of bishops and abbots.[347] The essence -of that arrangement had been to vest solely in the canons of the chapter -of the vacant diocese the nominal right to appoint the new bishop, -subject, however, to the actual election taking place in the royal court -or chapel—so that the king, being present, might endeavour to prevent -the appointment of any churchman he objected to. The result had not been -what Anselm and the papal court expected; Henry I. and his successors -strenuously used or abused the influence thus reserved to them: none but -royal favourites were ever appointed, and the nominally free canonical -election became a sham. Churchmen had long desired to remedy this: -Langton saw his opportunity, and on 21st November, 1214, secured from -King John, so far as mere words could secure anything, that the right of -election by the canons of the chapter should henceforth be transformed -from a pretence into a reality. The bishops present at Runnymede used -their influence to have a distinct confirmation of this recent -concession inserted in the very forefront of Magna Carta. - ------ - -Footnote 346: - - Cf. _supra_, p. 39. The text will be found in _Statutes of the Realm_, - I. 5, and in _New Rymer_, I. 126-7. It was confirmed by Innocent on - 30th March, 1215. See Potthast, _Regesta pontificum romanorum_, No. - 4963. - -Footnote 347: - - Cf. _supra_, p. 22. - ------ - -Their forethought was insufficient permanently to prevent royal -influence from bending canonical election to its will. Henry III., -indeed, in his reissues was made to repeat the phrase _quod Anglicana -ecclesia libera sit_, but omitted all reference alike to canonical -election and to the charters of 21st November, 1214, and 15th January, -1215. Later in his reign, he took advantage of this, with the Pope’s -connivance or support, to reduce again the rights of cathedral chapters -in the appointment of bishops to the sinecure they had been before. - -It is true that Henry III. was prone, alike by nature and from policy, -to lean on the papal arm, and that the _Curia_ at Rome rather than the -_Curia Regis_ for a time dominated the appointment to vacant sees. Henry -and Innocent IV. indeed formed a tacit alliance for dividing all fat -livings among their respective creatures, king’s men or pope’s men, who -had little interest in England or its welfare. Edward I., impatient of -foreign dictation as he was, had to submit to a partial continuance of -“provisions” for hangers-on of the papacy in his insular domains; but -the national church had little to gain. The canons elected the nominee -of king or pope, as each was, for the moment, in the ascendant.[348] - ------ - -Footnote 348: - - Cf _supra_, p. 167. - ------ - -An interesting, if purely academic, question might be raised as to how -far the rights guaranteed by Magna Carta to the English church were -meant to imply freedom from papal as well as from royal interference. It -is clear that the movement which culminated in the charter of 21st -November, 1214, originated in England, not at Rome; and apparently -Nicholas, the papal legate at that date, opposed the endeavours of -Stephen Langton to obtain it. The archbishop indeed looked upon the -legate as the chief obstacle to the reform by the king of the grievances -of the national church.[349] In spite of Magna Carta, then, the -independence of the national church retrograded, rather than advanced, -during the long alliance between Henry III. and the successive occupants -of the papal throne.[350] - ------ - -Footnote 349: - - See Miss Norgate, _John Lackland_, p. 208, and authorities there - cited. - -Footnote 350: - - Cf. Prothero, _Simon de Montfort_, p. 152. “The English church was - indeed less independent of the king in 1258 than in 1215, and far less - independent of the Pope than in the days of Becket.” - ------ - -II. _Civil and Political Rights._ After providing thus briefly for the -church, chapter one proceeds to give equal prominence, but at greater -length, to the grant or confirmation of secular customs and liberties. -This takes here the form of a general enacting clause, leaving details -to be specified in the remaining sixty-two chapters of the Charter. Some -of the more important points involved have already been discussed in the -Historical Introduction—for example, the feudal form of the grant, -better suited, according to modern ideas, to the conveyance of a -specific piece of land, than to the securing of the political and civil -liberties of a mighty nation; and the vexed question as to what classes -of Englishmen were intended, under the description of “freemen,” to -participate in these rights.[351] - ------ - -Footnote 351: - - See _supra_, pp. 128-9 and 141-2. For the meaning of “freeman” and - Coke’s inclusion of villeins under that term for some purposes but not - for others, see _infra_, cc. 20 and 39. - ------ - -Another interesting point, though of minor importance, calls for -separate treatment. John does not state that his grants of civil and -political rights had been made spontaneously. Whether deliberately or -not, there is here a marked distinction between the phraseology applied -to secular and to ecclesiastical rights respectively. While the -concessions to churchmen are said to have been granted “_mera et -spontanea voluntate_,” no such statement is made about the concessions -to the freemen. John may have favoured this omission as strengthening -his contention that the Great Charter had been sealed by him under -compulsion. In the third re-issue of Henry III. (1225) this defect was -remedied—the words “_spontanea et bona voluntate nostra_” being used in -its preamble.[352] Some importance seems to have been attributed to this -addition, which formed the essence of a concession bought by the -surrender of one-fifteenth of the moveable property of all estates of -the realm. - ------ - -Footnote 352: - - Cf. _supra_, p. 181. - ------ - - - - - CHAPTER TWO. - - -Si quis comitum vel baronum nostrorum, sive aliorum tenencium de nobis -in capite per servicium militare, mortuus fuerit, et cum decesserit -heres suus plene etatis fuerit et relevium debeat, habeat hereditatem -suam per antiquum relevium; scilicet heres vel heredes comitis de -baronia comitis integra per centum libras; heres vel heredes baronis de -baronia integra per centum libras; heres vel heredes militis de feodo -militis integro per centum solidos ad plus; et qui minus debuerit minus -det secundum antiquam consuetudinem feodorum. - - If any of our earls or barons, or others holding of us in chief by - military service shall have died, and at the time of his death his - heir shall be of full age and owe “relief,” he shall have his - inheritance on payment of the ancient relief, namely the heir or heirs - of an earl, £100 for a whole earl’s barony; the heir or heirs of a - baron, £100 for a whole barony; the heir or heirs of a knight, 100s. - at most for a whole knight’s fee; and whoever owes less let him give - less, according to the ancient custom of fiefs. - - -All preliminaries concluded, the Charter at once attacked what was, in -the barons’ eyes, the chief of John’s abuses, his arbitrary increase of -feudal obligations. The Articles of the Barons, indeed, had plunged at -once into this most crucial question without a word by way of pious -phrases or legal formulae, such as were necessary in a regular Charter. - -I. _Assessment of Beliefs._ Each “incident” had its own special -possibilities of abuse, and the Great Charter deals with each of these -in turn. The present chapter defines the reliefs to be henceforth paid -to John.[353] The vagueness of the sums at first was a natural corollary -of the early doubts as to whether the hereditary principle was -absolutely binding or not. The heir with title not yet recognized was -keen to come to terms. The lord took as much as he could grind from the -inexperience or timidity of the youthful heir; the heir tried to profit -from the good nature or temporary embarrassments of the lord. All was -vague; and such vagueness favoured the strongest or most wily. - ------ - -Footnote 353: - - Cf. _supra_, p. 73. - ------ - -A process of definition, however, was early at work; and progressed, -though slowly. Public opinion set limits of variation, to go beyond -which was considered unreasonable or even indecent. Some conception of a -“reasonable relief” was evolved. Yet the criterion varied: the Crown -might defy rules binding on others. Henry I., indeed, when bidding -against duke Robert in 1099 for the throne showed himself willing, in -words if not in practice, to accept the limits set by contemporary -opinion. His Charter of Liberties promised that all reliefs should be -_justa et legitima_—an elastic phrase no doubt, and one in after days -liberally interpreted by the exchequer officials in their royal master’s -favour. By the end of the twelfth century, when Glanvill wrote, the -exact sums which could be taken by mesne lords had been fixed; although -the Crown remained free to exact higher rates. _Baroniae capitales_, he -tells us, were charged relief, not at a fixed rate, but at sums which -varied _juxta voluntatem et misericordiam domini regis_.[354] - ------ - -Footnote 354: - - Glanvill’s words (IX. c. 4) are unfortunately ambiguous. He - distinguishes three cases: (_a_) the normal knight’s fee, from which - 100s. was due as relief (whether this extends to fees of crown tenants - does not appear); (_b_) socage lands, from which one year’s rent might - be taken; and (_c_) “_capitales baroniae_,” which were left subject to - reliefs at the king’s discretion. Now “barony” was a loose word: - baronies, like barons, might be small or great (cf. _infra_, c. 14); - all crown fiefs being “baronies” in one sense, but only certain larger - “honours” being so reckoned in another. Glanvill leaves this vital - point undetermined, but evidence from other sources makes it probable - that even smaller crown holdings should for this purpose be classed - under his _capitales baroniae_, and not with knights’ fees held from - mesne lords. Two passages from the _Dialogus de Scaccario_ (II. x. E. - p. 135 and II. xxiv. p. 155) clearly support the distinction between - all crown tenants (small as well as great) on the one hand, and - tenants of mesne lords on the other: only the latter had their reliefs - fixed, while the former were at the king’s discretion. (The second - passage shows how the exchequer officials held the onus of proof to - lie on the heir to a crown fief to show that he was worthy to succeed - his father, and suggests rich gifts to the king as the best form of - proof.) Madox (I. 315-6) cites from the Pipe Rolls large sums exacted - by the crown. Usually the number of knights’ fees paid for is not - specified, but in one case a relief of £300 was paid for six fees—that - is, at the rate of £50 per fee, or exactly ten times what a mesne lord - could have exacted. (See Pipe Roll, 24 Henry II., cited by Madox, - _ibid._) There is further evidence to the same effect: where a barony - had escheated to the crown, reliefs of the former under-tenants would - in future be payable directly to the crown; but it was the practice of - Henry II. (confirmed by c. 43 of Magna Carta, _q. v._) to charge, in - such cases, only the lower rates exigible prior to the escheat. A - similar rule applied to under-tenants of baronies in wardship; see the - case of the knights of the see of Lincoln in the hands of a royal - warden in Pipe Roll, 14 Henry II. (cited by Madox, _ibid._). It would - thus appear that all holders of crown fiefs (not merely _barones - majores_) were in Glanvill’s day still liable to arbitrary extortions - in name of reliefs. The editors of the _Dialogus_ (p. 223) are also of - this opinion. Pollock and Maitland (I. 289), however, maintain the - opposite view—namely, that the limitation to 100s. per knight’s fee - was binding on the crown as well as on mesne lords. - -Every year, however, made for definition; and custom pointed with -increasing authority towards 100s. per knight’s fee, and £100 for a -barony. Two entries on the Pipe Roll of 10 Richard I. amusingly -illustrate the unsettled practice. A sum of £100 is described as a -“reasonable relief” for a barony, and immediately this entry is -stultified by a second entry of a considerable additional payment by way -of “fine” to induce the king to accept the sum his own roll had just -declared “reasonable.”[355] John was more openly regardless of reason. -The Pipe Roll of 1202 shows how an unfortunate heir failed to get his -heritage until he paid 300 marks, with the promise of an annual -“acceptable present” to the king.[356] - ------ - -Footnote 355: - - Madox, I. 316. - -Footnote 356: - - Madox, I. 317. - ------ - -If John could ask so much, what prevented him asking more? He might name -a prohibitive price, and so defeat the hereditability of fiefs -altogether. Such arbitrary exactions must end, so the barons were -determined in 1215; custom must be defined, so as to prevail henceforth -against royal discretion. The first demand of the Articles of the Barons -is, “that heirs of full age shall have their heritage by the ancient -relief to be set forth in the Charter.” Here it is, then, duly set forth -and defined in chapter 2 of Magna Carta as £100 for an "earl’s barony," -£100 for "a baron’s barony," 100s. for a knight’s fee, and a -proportional part of 100s. for every fraction of a knight’s fee. This -clause produced the desired effect. These rates were strictly observed -by the exchequer of Henry III., as we know from the Pipe Rolls of his -reign. Thus, when a certain William Pantoll was charged with £100 for -his relief on the mistaken supposition that he held a “barony,” he -protested that he held only five knight’s fees, and got off with the -payment of £25.[357] The relief of a barony was subsequently reduced -from £100 to 100 marks. The date of this change, if we may rely on -Madox,[358] lies between the twenty-first and thirty-fifth years of -Edward I.[359] - ------ - -Footnote 357: - - _Ibid._, I. 318. - -Footnote 358: - - _Ibid._, I. 321. - -Footnote 359: - - The first of the long series of charters and confirmations which - contains it seems to be the _Inspeximus_ of 10th October, 1297, which - in all probability merely recognized officially a rule long demanded - as simple justice by the barons and public opinion. (See Madox, I. - 318, Pollock and Maitland, I. 289, and Bémont, _Chartes_, p. 47.) - ------ - -Apparently all who paid reliefs to the king were mulcted in a further -payment (calculated at 9 per cent. of the relief) in name of "Queen’s -Gold," a contribution to the private purse of the Queen Consort, and -collected by an official specially representing her at the -exchequer.[360] - ------ - -Footnote 360: - - See note by editors of _Dialogus_, p. 238. The Petition of the Barons - in 1258 (_Sel. Charters_, 382) protested against this, and the - practice was discontinued. - -The Charter deals only with tenure by knight’s service; nothing is said -of other tenures. The explanation of the omission may possibly be -different in the cases of socage and of serjeanty respectively.[361] -(_a_) _Socage._ The barons were not so vitally interested in socage, -that being, in the normal case, the tenure of humbler men.[362] In later -reigns the king, like an ordinary mesne lord, contented himself with one -year’s rent of socage lands in name of relief. (_b_) _Serjeanty._ The -barons cannot have been indifferent to the fate of serjeanties, since -many of them held great estates by such tenures. Possibly they assumed -that the rules applied to knights’ fees and baronies would apply to -serjeanties as well. The Crown, however, acted on a different view; -large sums were frequently extorted by Henry III. By the reign of Edward -I., however, the practice of the exchequer was to limit itself to one -year’s rent (a sufficiently severe exaction)[363] for serjeanties, which -thus fell into line with socage.[364] - ------ - -Footnote 361: - - Cf. _supra_, pp. 66-9. - -Footnote 362: - - It is possible to argue that the custom as to socage was already too - well settled to require any confirmation. Glanvill (IX. c. 4) stated - the relief for socage at one year’s annual value. It is not absolutely - clear, however, whether this restriction applied to the crown. - Further, no custom, however well established, was sufficiently safe - against John’s greed, to make confirmation unnecessary. - -Footnote 363: - - See Littleton, _Tenures_, II. viii., s. 154, and Madox, I. 321, who - cites the case of a certain Henry, son of William le Moigne, who was - fined in £18 for the relief of lands worth £18 a year held "by the - serjeanty of the King’s Lardinary." - -Footnote 364: - - Cf. _supra_, p. 69. - ------ - -II. _Units of Assessment._ Some explanation is required of the three -groups into which crown estates were thus divided—knight’s fees, barons’ -baronies, and earls’ baronies. - -(1) _Feodum militis integrum._ The origin of the knight’s fee is -obscured by a network of conflicting theories. A thread of connection is -sometimes traced between it and the mysterious five-hide unit of -Anglo-Saxon times; other authorities would ascribe its introduction into -England to a definite act of some great personage—either William the -Conqueror, according to Selden, who founds on a well-known but -untrustworthy passage in Ordericus Vitalis, or Ranulf Flambard, -according to Freeman, Stubbs, and Gneist. It seems probable that the -Normans, here as elsewhere, pursued their policy of avoiding an open -rupture with the past, and that the Conqueror adapted as far as possible -the existing system of land tenure to his own needs. There is little -doubt, in light of the evidence accumulated by Mr. Round in his _Feudal -England_, that William I. stipulated verbally for the service of a -definite number of knights from every fief bestowed by him on his Norman -followers. A knight’s fee or _scutum_ thus became a measure of military -service, and of feudal assessment; _servitium unius militis_ was a -well-known legal unit. But a difficult problem arises when it is asked -what definite equation, if any, existed between land and service. Three -answers have been given: (_a_) A definite ratio exists between amount of -service and extent of ground. In other words, the knight’s fee contains -a fixed area of land; every five hides sent one warrior, thus preserving -the old Anglo-Saxon unit.[365] (_b_) The ratio lies not between service -and extent, but between service and value. An estate of £20 annual -rental sends one knight to the king’s wars; the normal knight’s fee -contains 20 librates of land.[366] (_c_) Other authorities deny that any -proportion exists at all: William the Conqueror exacted from each of his -grantees precisely as much or as little knight’s service as he saw fit. - ------ - -Footnote 365: - - C. Pearson, _Hist. of Engl._, I. 375, note 2. - -Footnote 366: - - J. H. Round, _Feudal England_, 295. - ------ - -Is it not possible to reconcile these divergent conclusions? Undoubtedly -the Conqueror held himself bound by no fixed rules, but made exceptions -where he pleased: some favoured foundations were exempt from all service -whatsoever.[367] Yet, if he distributed estates at his own free will, he -did not necessarily distribute them irrationally or at random. He -demanded service of knights in round numbers, 5 or 10 or 20, as he saw -cause, and in normal cases he was guided by some loose sense of -proportion. Where there was no reason either for preferential treatment -or for special severity, service would be roughly proportionate either -to the area or to the value. This rule was William’s servant, not his -master, and was made to yield to many exceptions, which would amply -account for the existence in later days of knight’s fees varying from 2 -hides to 14 hides, instead of the normal 5.[368] Each such fee, whatever -its acreage or its rental, owed the service of one knight, and paid -relief at 100s. - ------ - -Footnote 367: - - _E.g._ Gloucester and Battle Abbeys: see Round, _ibid._, 299. - -Footnote 368: - - See Round, _Feudal England_, 294, and Pollock and Maitland, I. 235. - ------ - -(2) _Baronia integra._ The word “barony” cannot be easily defined, on -account of the many changes it has undergone.[369] A “barony” at the -Norman Conquest differed in almost every respect from a “barony” at the -present day. The word _baro_ was originally synonymous with _homo_, -meaning, in feudal usage, a vassal of any lord. It soon became usual, -however, to confine the word to king’s men; “_barones_” were thus -identical with "crown tenants"—a considerable body at first; but a new -distinction soon arose between the great men and the smaller men among -their number (between _barones majores_ and _barones minores_). The -latter were usually called knights (_milites_), while “baron” was -reserved for the holder of an “honour.”[370] For determining what -constituted an “honour,” however, it was impossible to lay down any -absolute criterion. Mere size was not sufficient: a magnate once classed -as a full “baron” might successfully claim to be only a “knight,” thus -lightening some of his feudal burdens, for example this one of -“reliefs.” Chapter 14 of Magna Carta helped to stereotype the division, -since it stipulated that each _major baro_ should receive an individual -writ of summons to the Council, leaving the _barones minores_ to be -convened collectively through the sheriff. As the one point of -certainty, where everything else was vague, these writs came to possess -an exaggerated importance, and it was finally held (at a date long -subsequent to Magna Carta) that the mere receipt of a special summons, -if acted upon, made the recipient a baron, and entitled his heirs, in -all time coming, to succeed him in what was fast hardening into a -recognized title of dignity. The “barons” in 1215 knew nothing of all -this; they desired merely to have the reliefs due by them taxed at a -fixed rate. Each “barony” should pay £100, a sum afterwards reduced to -100 marks. - ------ - -Footnote 369: - - See Pollock and Maitland, I. 262, and authorities there cited. “An - honour or barony is thus regarded as a mass of lands which from of old - have been held by a single title.” An exact definition is, perhaps, - impossible: the term was first applied in early days without any - technical meaning; in later days each “honour” had separately - established its position by prescriptive usage. See also Pike, _House - of Lords_, pp. 88-9, on the difficulty of defining “an entire barony.” - -Footnote 370: - - This change was not complete in 1215, but Magna Carta, when it uses - “_barones_” alone, seems to refer to “_barones majores_” only (see cc. - 2, 21, 61). In c. 14, “_barones majores_” are contrasted with - “_barones minores_.” - ------ - -Relief was thereafter a fixed sum, while the size of the barony varied -in each case. As the same holds true of the knight’s fee, it is doubly -ridiculous to attempt to discover an equation between the knight’s fee -and the barony founded upon the ratio of the sums payable. Coke, -however, was guilty of this absurdity.[371] - ------ - -Footnote 371: - - See Coke on _Littleton_, II. iv. s. 112, and _ibid._ _Second - Institute_, p. 7. Founding on the later practice of the exchequer, - which exacted one hundred marks of relief from a barony, and one - hundred shillings from a knight’s fee, he assumed the false equation - "1 barony = 13⅓ knight’s fees." If he had known of the earlier - practice, which followed the rule of John’s Charter, he might have - jumped to another equation, equally false, namely that "1 barony = 20 - knight’s fees." There is, in reality, no fixed proportion between the - two, either as to extent or value. - ------ - -(3) _Baronia comitis integra._ A peculiar phrase is used in the text, an -"earl’s barony" appearing where “earldom” might be expected.[372] The -reason is that “earldom” originally implied the holding of an office and -not the ownership of land, whereas relief was payable for the earl’s -lands or “honour,” not for his office. The Charter, therefore, uses -words well fitted to make its meaning clear. The earl (or _comes_) was -the successor of the ealdorman as local governor of a county or group of -counties. His title was official, not tenurial, or even, in early times, -necessarily hereditary. - ------ - -Footnote 372: - - In the _Inspeximus_ of Edward I., however, the word _comitatus_ - (earldom) displaces the _baronia comitis_ of the text. See _Statutes - of Realm_, I. 114. - ------ - -Some of the ideas most intimately connected with a modern earldom were -signally inappropriate to the Norman earls. At the present day an -earldom is one of several “steps in the peerage,” a conception that did -not then exist. At the present day it carries with it a seat in the -House of Lords, whereas no instance is recorded until long after the -Norman Conquest of any earl or other great man demanding as a right to -be present in the king’s council: the custom of summoning all crown -tenants became stereotyped only in the reign of Henry II. and was not -formally recognized previous to chapter 14 of Magna Carta. At the -present day, again, the hereditary principle is the chief feature of an -earldom, whereas William did not admit that the office necessarily -passed from father to son.[373] - ------ - -Footnote 373: - - See Pike, _House of Lords_, 57. - ------ - -The policy of the Conqueror had been to bring each county as far as -possible under his own direct authority; many districts had no earls, -while in others the connection of an earl with his titular shire was -reduced to a shadow, the only points of connection being the right to -enjoy “the third penny” (that is, the third part _pro indiviso_ of the -profits of justice administered in the county court) and the right to -bear its name. It is true that in addition the earl usually held -valuable estates in the shire, but he did this only as any other -landowner might. For purposes of taxation the whole of his lands, -whether in his own county or elsewhere, were reckoned as one unit, here -described as _baronia comitis integra_, the relief on which was taxed at -one hundred pounds. - -Very gradually in after ages, the conception of an earldom suffered -change. The official character gave way before the idea of tenure, and -later on the modern conception was formulated of a hereditary dignity -conferring specific rank and privileges. The period of transition when -the tenurial idea prevailed is illustrated by the successful attempt of -Ranulf, earl of Chester and Lincoln, in the reign of Henry III. to -aliene one of his two earldoms—described by him as the _comitatus_ of -Lincoln.[374] Earls are now, like barons, created by letters patent, and -need not be land-owners. Thus the words “barony” and “earldom,” so -diverse in their origin and early development, were closely united in -their later history. - ------ - -Footnote 374: - - See Pike, _House of Lords_, 63. This term _comitatus_ was a word of - many meanings. Originally designating the “county” or “the county - court,” it came to mean also the office of the earl who ruled the - county, and later on it might indicate, according to context, either - his titular connection with the shire, his estates, his share of the - profits of justice, or his rank in the peerage. - ------ - -III. _Liability of Church Property to “Relief.”_ The Great Charter of -John, unlike the Charter of Henry I. makes no mention of the lands of -vacant sees in this connection, probably because the main question had -long been settled in favour of the church. The position of a bishopric -was, however, a peculiar one. Each prelate was a crown tenant, and his -fief was reckoned a “barony,” entitling its owner to all the privileges, -and saddling him with all the feudal obligations of a baron.[375] - ------ - -Footnote 375: - - This was specially affirmed in 1164 by article 11 of the Constitutions - of Clarendon, which stipulated that each prelate should hold his lands - _sicut baroniam_, merely a restatement of existing law. - ------ - -It was not then unnatural that, when a prelate died, the Crown should -demand “relief” from his successor, in the same way as from the heir of -a dead lay baron. Such demands, when made by William Rufus and his -minister Flambard, met with bitter opposition. The Crown in consequence, -unwilling to forego any of its feudal dues, endeavoured to shift their -incidence from the revenues of the see to the shoulders of the feudal -under-tenants. After bishop Wulfstan’s death on 18th January, 1095, a -writ was issued in William’s name to the freeholders of the see of -Worcester, calling on each of them to pay, as a relief due on their -bishop’s death, a specified sum, assessed by the barons of the -exchequer.[376] - ------ - -Footnote 376: - - _Sicut per barones meos disposui._ The writ is given in Heming’s - _Cartulary_, I. 79-80, and reprinted by Round, _Feudal England_, 309. - ------ - -In revenge for such extortions from church lands and tenants, the -historians of the day, all necessarily recruited from the clerical -class, have heartily recommended Rufus and Flambard to the opprobrium of -posterity. Anselm compelled Henry I. to promise amendment in his -coronation Charter, which undertook to exact nothing during vacancies -either from the demesne of the church or from its tenants.[377] No -corresponding promise was demanded from John, a proof that such -exactions had ceased. The Crown no longer extorted relief from church -lands, although wardship was, without protest, enforced during -vacancies. - ------ - -Footnote 377: - - See Appendix. - ------ - - - - - CHAPTER THREE. - - -Si autem heres alicujus talium fuerit infra etatem et fuerit in -custodia, cum ad etatem pervenerit, habeat hereditatem suam sine relevio -et sine fine. - - If, however, the heir of any one of the aforesaid has been under age - and in wardship, let him have his inheritance without relief and - without fine when he comes of age. - - -The Crown is here forbidden to exact relief where it had already enjoyed -wardship. It was hard on the youth, escaping from leading-strings, to be -met, when he “sued out his livery,” with the demand for a large relief -by the exchequer which had already appropriated all his available -revenue. The same event, namely, the ancestor’s death, was thus made the -excuse for two distinct feudal incidents.[378] - ------ - -Footnote 378: - - Where there had already been a wardship, the relief was thus the price - paid by the heir in order to escape from the heavy hand of the king, - and was therefore known as “_ousterlemain_.” Mr. Taswell-Langmead - (_Engl. Const. Hist._, p. 51, n.) states the amount at half a year’s - profits. He cites no authorities for this, and is probably in error. - The _Dialogus_, II. x. E., p. 135, forbids relief to be taken, when - wardship had been exercised _per aliquot annos_. - ------ - -Such double extortion had long been forbidden to mesne lords; Magna -Carta was merely extending similar limitations to the king. The -grievance complained of had been intensified by an unfair expedient -which John sometimes adopted. In cases of disputed succession he -favoured the claims of a minor, enjoyed the wardship, and thereafter -repudiated his title altogether, or confirmed it only in return for an -exorbitant fine. The only safeguard was to provide that the king should -not enjoy wardship until he had allowed the heir to perform homage, -which constituted the binding tie of lord and vassal between them, -prevented the king from challenging the vassal’s right, and bound him to -“warrant” the title against all rival claimants. This expedient was -actually adopted in the revised Charter of 1216.[379] - ------ - -Footnote 379: - - See chapter 3 of 1216, which stipulates that no lord shall have - wardship of an heir “_antequam homagium ejus ceperit_.” Cf. Coke, - _Second Institute_, p. 10. - ------ - -The alterations in that reissue were not altogether in the vassal’s -favour. Another addition made a reasonable stipulation in favour of the -lord, which incidentally illustrates the theory underlying wardship. The -essence of tenure in chivalry was the grant of land in return for -military services. Only a knight was capable of bearing arms; hence it -was that the lord held the lands in ward until the minor should reach -man’s estate. Ingenious attempts had apparently been made to defeat -these legitimate rights of feudal lords by making the infant heir a -“knight,” thus cutting away the basis on which wardship rested. The -reissue of 1216 prevented this, providing that the lands of a minor -should remain in wardship, although he was made a knight.[380] -Incidentally, the same Charter of Henry declared twenty-one years to be -the period at which a military tenant came of age, a point on which -John’s Charter had been silent. - ------ - -Footnote 380: - - Coke, _ibid._, p. 12, makes a subtle, and apparently unwarranted, - distinction to depend on whether the minor was made a knight before or - after his ancestor’s death. The proviso, he argues, does not apply to - the former case, because the word used is “_remaneat_,” and lands - cannot “remain” in wardship if they were not in it before. Such - reasoning is puerile. - ------ - -In one case, exceptionally, wardship and relief might both be exacted on -account of the same death, though not by the same lord. Where the dead -man had formerly held two estates, one of the Crown and one of a mesne -lord, the Crown might claim the wardship of both, and then the -disappointed mesne lord was allowed to exact relief as a solatium for -his loss.[381] - ------ - -Footnote 381: - - See _Coke on Littleton_, Book II. c. iv. s. 112; and cf. _infra_, cc. - 37 and 43 for the “prerogative wardship” of the Crown. - ------ - - - - - CHAPTER FOUR. - -Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de -terra heredis nisi racionabiles exitus, et racionabiles consuetudines, -et racionabilia servicia, et hoc sine destructione et vasto hominum vel -rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti -vel alicui alii qui de exitibus illius nobis respondere debeat, et ille -destructionem de custodia fecerit vel vastum, nos ab illo capiemus -emendam, et terra committatur duobus legalibus et discretis hominibus de -feodo illo, qui de exitibus respondeant nobis vel ei cui eos -assignaverimus; et si dederimus vel vendiderimus alicui custodiam -alicujus talis terre, et ille destructionem inde fecerit vel vastum, -amittat ipsam custodiam, et tradatur duobus legalibus et discretis -hominibus de feodo illo qui similiter nobis respondeant sicut predictum -est. - - The guardian of the land of an heir who is thus under age, shall take - from the land of the heir nothing but reasonable produce, reasonable - customs, and reasonable services, and that without destruction or - waste of men or goods; and if we have committed the wardship of the - lands of any such minor to the sheriff, or to any other who is - responsible to us for its issues, and he has made destruction or waste - of what he holds in wardship, we will take of him amends, and the land - shall be committed to two lawful and discreet men of that fee, who - shall be responsible to us for the issues, or to him to whom we shall - assign them; and if we have given or sold the wardship of any such - land to someone and he has therein made destruction or waste, he shall - lose that wardship, and it shall be transferred to two lawful and - discreet men of that fief, who shall be responsible to us in like - manner as aforesaid. - - -This chapter and the next treat of wardship,[382] a much hated feudal -incident, which undoubtedly afforded openings for grave abuses. It is a -mistake, however, to regard its mere existence as an abuse: it seems to -have been perfectly legal in England from the date of the Norman -Conquest, although some writers[383] consider it an innovation devised -by William Rufus and Flambard, without precedent in the Conqueror’s -reign. The chief argument for this mistaken view is that Henry I., in -promising redress of several admitted inventions of Rufus, promised also -to reform wardship. This may show that wardship was abused, but does not -prove it an innovation. - ------ - -Footnote 382: - - The nature of wardship is more fully explained _supra_, pp. 75-7. - -Footnote 383: - - _E.g._ Mr. Taswell-Langmead, _Engl. Const. History_, p. 51, n. - ------ - -The Charter of Henry committed him undoubtedly to drastic remedies, -which would have amounted to the virtual abolition of wardship -altogether. Chapter 4 of that document removed from the lord’s custody -both the land and the person of the heir, and gave them to the widow of -the deceased tenant (or to one of the kinsmen, if such kinsman had, by -ancient custom, rights prior to those of the widow).[384] This was only -one of the many insincere promises which the “lion of justice” never -kept, and probably never meant to keep. Wardship continued to be exacted -from lay fiefs throughout the reigns of Henry I. and Stephen. Article 4 -of the Assize of Northampton (1176) merely confirmed the existing -practice when it allowed wardship to the lord of the fee.[385] The -barons in 1215 made no attempt to alter this, or to revert to the -drastic remedies of the Charter of Henry I., although the evils -complained of had become worse under John’s misgovernment. - ------ - -Footnote 384: - - “This, it would seem, was the old English rule”; see Ramsay, - _Foundations of England_, II. 230. - ------ - -It must be remembered that “wardship” placed the property and person of -the heir at the mercy of the Crown. Even if the popular belief as to the -fate met by Prince Arthur at his uncle’s hands was unfounded, John was -by no means the guardian to inspire confidence in the widowed mother of -a young Crown tenant whose estates the king might covet for himself. -Further, the king might confer the office, with the delicate issues -involved, upon whomsoever he would. When such a trust was abused it was -difficult to obtain redress. In 1133 a guardian, accused _de puella quam -dicitur violasse in custodia sua_, paid a fine to the crown, if not as -hush money, at least in order to obtain protection from being sued -elsewhere than in the _Curia Regis_.[386] It is easy to understand how -thoroughly this feudal incident must have been detested in England and -Normandy, all the more so if, as Hallam contends, it was not recognized -as a feudal due in other parts of Europe.[387] - ------ - -Footnote 385: - - It is a common error to suppose that this Assize restores wardship to - the lord. - -Footnote 386: - - See _Pipe Roll_, 29 Henry II., cited Madox, I. 483. - -Footnote 387: - - Cf. _supra_, p. 78. - -Guardians were of two kinds. The king might entrust the lands to the -sheriff of the county where they lay (or to one of his bailiffs), such -sheriff drawing the revenues on the Crown’s behalf, and accounting in -due season at the exchequer. Alternatively, the king might make an -out-and-out grant of the office, together with all profit to be derived -from it, to a private individual, either some royal favourite or the -bidder of the highest price. Commentators of a later date[388] apply the -word “committee” to the former type of guardian, reserving “grantee” for -the latter. This distinction, which is mentioned by Glanvill,[389] -obtains recognition in this passage of the Charter. Neither was likely -to have the interests of the minor at heart. Both would extort the -maximum of revenue, the one for the king, the other for himself. They -had always strong inducements to exhaust the soil, stock, and timber, -uprooting and cutting down whatever would fetch a price, and replacing -nothing. The heir found too often a wilderness of impoverished lands and -empty barns. - ------ - -Footnote 388: - - _E.g._ Coke, _Second Institute_, p. 13. - -Footnote 389: - - VII. c. 10. - ------ - -The remedies proposed by Magna Carta were too timid and half-hearted; -yet something was effected. It was unnecessary to repeat the recognized -rule that the minor must receive, out of the revenues of the land, -maintenance and education suited to his station; but the Crown was -restrained by chapter 3 from exacting relief where wardship had already -been enjoyed; chapter 37 forbade John to exact wardship in certain cases -where it was not legally due; while here in chapter 4 an attempt was -made to protect the estate from waste. - -The promised reforms included a definition of “waste”; punishment of the -wasteful guardian; and protection against repetition of the abuse. Each -of these calls for comment. (1) _The definition of waste._ The Charter -uses the words “_vastum hominum vel rerum_” (a phrase which occurs also -in Bracton).[390] It is easy to understand waste of goods; but what is -"waste of men"? An answer may be found in the words of the so-called -“unknown Charter of Liberties,”[391] which binds guardians to hand over -the land to the heir “_sine venditione nemorum et sine redemptione -hominum_.” Clearly, to enfranchise villeins was one method of “wasting -men.” The young heir, when he came to the enjoyment of his estates, must -not find his praedial serfs emancipated.[392] The words of the “unknown -Charter” may be used to illustrate the text, even if it be a forgery, -since a consensus of opinion holds it to be either contemporary or of -slightly later date.[393] - ------ - -Footnote 390: - - II. folio 87. - -Footnote 391: - - See Appendix. - -Footnote 392: - - Another way of “wasting” villeins was by tallaging them excessively. - (For meaning of tallage cf. _infra_ c. 12.) Thus Bracton’s _Note Book_ - reveals how one guardian _destruxit villanos per tallagia_ (_v._ case - 485); how another exiled or destroyed villeins to the value of 300 - marks (case 574); how a third destroyed two rich villeins so that they - became poor and beggars and exiles (case 632). Cf. also case 691. - Daines Barrington, writing towards the middle of the eighteenth - century, went too far when he inferred from this passage “that the - villeins who held by servile tenure were considered as so many negroes - on a sugar plantation” (_Observations_, p. 7.). For a definition of - “villein” see _infra_ c. 20. - -Footnote 393: - - Cf. _supra_, pp. 202-5. - ------ - -(2) _The punishment of wasteful guardians._ The Charter provides a -distinct but appropriate form of punishment for each of the two types of -guardian. John promises to take “amends,” doubtless of the nature of a -fine, from the “committee” who had no personal interest in the property; -while the “grantee” is to forfeit the guardianship, thus losing a -valuable asset for which he had probably paid a high price, sufficient -punishment, perhaps, without the exaction of damages. - -Subsequent statutes did not, however, take so lenient a view. While the -Statute of Westminster[394] merely repeated the words of Magna Carta, -the Statute of Gloucester[395] enacted that the grantee who had -committed waste should not only lose the custody, but should, in -addition, pay to the heir any balance between the value of the wardship -thus forfeited and the total damage. More severe penalties were found -necessary. Statute 36 Edward III. chapter 13 enacted that the king’s -Escheators (officers who first became prominent towards the close of the -reign of Henry III., and who acted in the normal case as guardians of -Crown wards), when guilty of waste, should “yield to the heir treble -damages.” If the boy was still a minor, his friends might bring a suit -on his behalf; or after he was of full age he might bring it on his own -account.[396] - ------ - -Footnote 394: - - 3 Edward I. c. 21. - -Footnote 395: - - 6 Edward I. c. 5. - -Footnote 396: - - Coke, _Second Institute_, p. 13, enunciates a doctrine at variance - with this statute, holding that the heir who suffered damage could - not, on coming of age, obtain such triple damages, or indeed any - damages at all, if the king had previously taken amends himself. Coke - further maintains that even after waste had been committed, the person - of the heir was left in the power of the unjust guardian, explaining - that when the Charter took away the office “this is understood of the - land, and not of the body.” There seems, however, to be no authority - for such statements. - ------ - -(3) _Provision against a recurrence of the waste._ It was only fair that -reasonable precautions should be taken to prevent the heir who had -already suffered hurt, from being similarly abused a second time. John, -accordingly, promised to supersede the keeper guilty of waste by -appointing as guardians two of the most trustworthy of the free-holders -on the heir’s estate. These men, from their local and personal ties to -the young heir, might be expected to deal tenderly with his property. -The “unknown Charter,” already referred to, proposed a more drastic -remedy. Whenever the Crown’s right to a wardship opened, the lands were -to be entrusted to four knights of the fief without waiting until damage -had been done. This suggestion, if carried out, would have protected the -king’s wards, without injury to the legitimate pecuniary interests of -the Crown. - - - - - CHAPTER FIVE. - -Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos, -vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de -exitibus terre ejusdem; et reddat heredi, cum ad plenam etatem -pervenerit, terram suam totam instauratam de carrucis et waynagiis, -secundum quod tempus waynagii exiget et exitus terre racionabiliter -poterunt sustinere. - - The guardian, moreover, so long as he has the wardship of the land, - shall keep up the houses, parks, places for live-stock,[397] - fishponds, mills, and other things pertaining to the land, out of the - issues of the same land; and he shall restore to the heir, when he has - come to full age, all his land, stocked with ploughs and implements of - husbandry, according as the season of husbandry shall require, and the - issues of the land can reasonably bear. - - ------ - -Footnote 397: - - _Vivarium_ in strictness means a place for keeping live-stock, but - probably included the animals also. By Coke, in the _Statutes at - large_, and elsewhere, it is translated “warren”; but that word has - its Latin form in _warrena_. Stubbs’ Glossary to _Select Charters_ (p. - 551) renders it as “a fish pond,” but _stagnum_ has that meaning. The - Statute Westminster II. (c. 47) speaks of _stagnum molendinæ_ (a - mill-pond). The Statute of Merton (c. 11) refers to poachers taken _in - parcis et vivariis_; while Westminster I. (c. 1) forbids _ne courge en - autri parks, ne pesche en autri vivers_, which suggests a change of - connotation. Cf. _ibid._, c. 20. - ------ - -These stipulations form the complement, on the positive side, of the -purely negative provisions of chapter 4. It was not sufficient to -prohibit acts of waste; the guardian must see that the estates were kept -in good repair. - -I. _The Obligations of the Warden of a Lay-fief._ It was the duty of -every custodian to preserve the lands from neglect, together with all -houses, “parks” (a term explained under chapter 47), fishponds, mills, -and the other usual items of the equipment of a medieval manor. All -outlays required for these purposes formed, in modern language, a first -charge on the revenues of the estate, to be deducted before the balance -was appropriated by the “grantee,” or paid to the exchequer by the -“committee.” It was the guardian’s duty, moreover, to restore the whole -to the heir in as good condition as the produce of the land might -reasonably permit. Henry’s Charters directed that the guardian should -redeliver the land stocked with ploughs “and with all other appointments -in at least as good condition as he received it.”[398] - ------ - -Footnote 398: - - Blackstone, _Great Charter_, lxxviii. considers this “an indulgence to - guardians, by only directing them to deliver up the land ... in as - good condition as they found it, not in as good as it would bear.” - Sometimes, the heir after coming of age, could not recover his lands - at all. The Statute of Marlborough (c. 16) gave such a ward a right to - a _mort d’ancestor_ (cf. _infra_, p. 325) against a mesne lord, but - apparently not against the Crown. The Statute of Westminster I. (c. - 48) narrates that heirs were often carried off bodily to prevent them - raising actions against their guardians. - ------ - -Magna Carta did not attempt to abolish wardship, which continued in full -force for many centuries, with only a few of its worst abuses somewhat -curtailed. The whole subject was regulated in 1549 by the Statute 32 -Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the -expensive and dilatory procedure of which caused increasing discontent, -until an order of both Houses of Parliament, dated 24th February, 1646, -abolished it along with “all wardships, liveries, _primer seisins_, and -_ouster les mains_.”[399] This ordinance was confirmed at the -Restoration by the Statute 12 Charles II. c. 24. - ------ - -Footnote 399: - - See S. R. Gardiner, _Documents_, p. 207. - ------ - -II. _Wardships over Vacant Sees._ The church had its own grievances, -although these took a different form. The Constitutions of -Clarendon[400] had stipulated that each great prelate should hold his -Crown lands _sicut baroniam_; and this view ultimately prevailed. It -followed that all appropriate feudal burdens affected church fiefs -equally with lay fiefs. The lands which formed the temporalities of a -see were, however, in a peculiar position, being the property, not of an -individual, but of an undying corporation (to use the definite language -of a later age). When one bishop or abbot died, a successor of suitable -age and worth had at once to be appointed. A minority was thus -impossible, and therefore, so it might be argued, wardships could never -arise. Rufus objected to what he thought an unfair exemption from a -recognized feudal incident. Flambard devised an ingenious substitute for -ordinary wardships by keeping sees long vacant, and meantime taking the -lands under the guardianship of the Crown. Such practices formed the -original ground of quarrel between Anselm and Rufus. Henry I., while -renouncing by his Charter all pretensions to exact reliefs, retained his -right of wardship, promising merely that vacant sees should neither be -sold nor farmed out. Stephen went further, renouncing expressly all -wardships over church lands; but Henry II. ignored this concession, and -reverted to the practice of his grandfather. In his reign the wardship -of the rich properties of vacant sees formed a valuable asset of the -exchequer. During a vacancy the Crown drew not only the rents and issues -of the soil, but also the various feudal payments which the -under-tenants would otherwise have paid to the bishop. The Pipe Roll of -14 Henry II.[401] records sums of £30 and £20 paid into the exchequer by -two tenants of the vacant see of Lincoln for six and four knight’s fees -respectively.[402] - ------ - -Footnote 400: - - Article 11: see _Select Charters_, 139. - -Footnote 401: - - Cited by the editors of the _Dialogus_, p. 223. - -Footnote 402: - - Cf. under c. 43 _infra_. - ------ - -The practice of Henry of Anjou was followed by his sons. John was -careful specially to reserve wardships over vacant sees even in that -very accommodating charter, dated 21st November, 1214, which surrendered -the right of canonical election to the national church. Stephen Langton -had either failed to force John to relinquish wardships or else -considered such a concession unnecessary now that the king renounced his -right to veto church appointments, since wardships over church lands -would become unprofitable if elections were never unduly delayed. -Whatever the reason, the charter of 1214 did nothing to guard against -the abuse of wardships over church lands, and John’s Great Charter was -equally silent.[403] The omission was supplied in 1216, when it was -directed that the provisions already made applicable to lay fiefs should -extend also to vacant sees, with the added proviso that church wardships -should never be sold. The charter of Henry III. thus reverted to the -exact position defined by the charter of Henry I. The lands of vacant -sees might be placed under a “committee,” but never given to a -“grantee,” to use Coke’s terms. - ------ - -Footnote 403: - - C. 46 (see _infra_) confirmed _barons_, who had founded abbeys, in - their rights of wardship over them during vacancies. - ------ - -These provisions were further supplemented by later acts. An Act of 14 -Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a -vacant see a right to the pre-emption of the wardship at a fair price. -If they failed to exercise this, the king’s right to appoint escheators -or other keepers was confirmed, but under strict rules as to waste. This -is a distinct confirmation of the king’s right to “commit” church lands, -although the prohibitions against selling them or farming them out -remained still in force. - - - - - CHAPTER SIX. - -Heredes maritentur absque disparagacione, ita tamen quod, antequam -contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius -heredis. - - Heirs shall be married without disparagement, yet so that before the - marriage takes place the nearest in blood to that heir shall have - notice. - - -The Crown’s right to regulate the marriages of wards had become an -intolerable grievance. The origin of this feudal incident and its -extension to male as well as female minors have been elsewhere -explained.[404] John made a regular traffic in the sale of wards—young -maids of fourteen and aged widows alike. No excuse would be accepted. -The Pipe Roll of John’s first year[405] records how the chattels of a -certain Alice Bertram were taken from her and sold because she refused -“to come to marry herself” at the summons of the king. Only two -expedients were open to those who objected to mate for life with the men -to whom John sold them. They might take the veil, become dead in law, -and forfeit their fiefs to escape the burdens inherent in them. Only the -cloister could afford them shelter; nowhere in the outer world were they -safe. The other way of escape was to outbid objectionable suitors. This -was not always possible, for John was predisposed to favour the suit of -his foreign gentlemen of fortune, thus befriending his creatures while -adding to the slender number of personally loyal tenants-_in-capite_. -John’s greed was insatiable, and brief entries in his Exchequer Rolls -condense the story of many a tragedy. In the first year of his reign the -widow of Ralph of Cornhill offered 200 marks, with three palfreys and -two hawks, that she might not be espoused by Godfrey of Louvain, but -remain free to marry whom she chose, and yet keep her lands. This was a -case of desperate urgency, since Godfrey, for love of the lady or of her -lands, had offered 400 marks for her, if she could show no reason to the -contrary. It is satisfactory to learn that in this case the higher bribe -was refused, and the lady escaped.[406] - ------ - -Footnote 404: - - See _supra_, 75–8. - -Footnote 405: - - Cited Madox, I. 565. - -Footnote 406: - - See _Rotuli de Oblatis et Finibus_, p. 37, and _Pipe Roll_, 2 John, - cited by Madox, I. 515. - ------ - -Sometimes John varied his practice by selling, not the woman herself, -but the _right_ to sell her. In 1203 Bartholomew de Muleton bought for -400 marks the wardship of the lands and heir of a certain Lambert, along -with the widow, to be married to whom he would, yet so that she should -not be disparaged.[407] - ------ - -Footnote 407: - - _Pipe Roll_, 4 John, cited by Madox, I. 324. - -Great stress was naturally placed on exemption from "disparagement"—that -is, from forced marriage with one who was not an equal. When William of -Scotland, by the treaty of 7th February, 1212, conferred on John the -right to marry Prince Alexander to whom he would, the qualification was -expressly stated, “but always without disparagement.”[408] Such a -proviso was understood where not expressed, and formed apparently the -only restriction admitted by the Crown upon this prerogative. It is not -surprising, then, to find it specially confirmed in Magna Carta. -The Articles of the Barons had, indeed, demanded a further -protection—namely, that a royal ward should only be married _with the -consent_ of the next of kin. In our text this is softened down to the -mere intimation of an intended marriage. The opportunity was thus -afforded of protesting against an unsuitable match. Insufficient as the -provision was, it was entirely omitted from the reissues of Henry’s -reign. The sale of heiresses went on unchecked. - ------ - -Footnote 408: - - See _infra_, c. 59. - ------ - -Magna Carta made no attempt to define disparagement, but the Statute of -Merton[409] gave two examples,—marriage to a villein or to a burgess. -This was not an exhaustive list. Littleton, commenting on this -statute,[410] adds other illustrations:—“as if the heir that is in ward -be married to one who hath but one foot, or but one hand, or who is -deformed, decrepit, or having an horrible disease, or else great and -continual infirmity, and, if he be an heir male, married to a woman past -the age of child-bearing.” Plenty of room was left for forcing on a ward -an objectionable husband or wife, who yet could not be proved to come -within the law’s definition of “disparagement.” The barons argued in -1258 that an English heiress was disparaged if married to anyone not an -Englishman by birth.[411] - ------ - -Footnote 409: - - 20 Henry III. c. 6. - -Footnote 410: - - _Tenures_, II. iv. s. 109. - -Footnote 411: - - See Petition of Barons (_Sel. Charters_, 383). Gradually the - conception of disparagement was expanded, partly from the natural - development of legal principles and partly from the increased power - the nobility obtained of enforcing their own definitions upon the - king. Coke commenting on Littleton (Section 107) mentions four kinds - of disparagements: (1) _propter vitium animi_, _e.g._ lunatics and - others of unsound mind; (2) _propter vitium sanguinis_, villeins, - burgesses, sons of attainted persons, bastards, aliens, or children of - aliens; (3) _propter vitium corporis_, as those who had lost a limb or - were diseased or impotent; and (4) _propter jacturam privilegii_, or - such a marriage as would involve loss of “benefit of clergy.” The last - clause had no possible connection with the law as it stood in the - thirteenth century, but was founded on the fact that marriage with a - widow or widower was deemed by the Church in later days an act of - bigamy, and therefore involved loss of the benefit of clergy, until - this was remedied by the Statute 1 Edward VI. c. 12 (sect. 16). - -Was it in the power of the far-seeing father of a prospective heiress by -marrying her during his own life-time to render nugatory the Crown’s -right to nominate a husband? Not entirely; for the Charter of Henry I. -(even when renouncing the more oppressive practice of Rufus) reserved -the king’s right to be consulted by the barons before they bestowed the -hand of female relations in marriage. Magna Carta is silent on the -point, and the presumption is that the existing law was to be -maintained. - -Bracton[412] explains that law:—No woman with an inheritance could marry -without the chief lord’s consent, under pain of losing such inheritance; -yet the lord when asked was bound to grant consent, if he failed to show -good reasons to the contrary; he could not, however, be compelled to -accept homage from an enemy or other unsuitable tenant. The Crown’s -rights in such matters were apparently the same as those of any mesne -lord.[413] - ------ - -Footnote 412: - - II. _folio_ 88. - -Footnote 413: - - For further information on the age at which marriage could be tendered - to a ward, and the penalties for refusing, see Thomson, _Magna - Charta_, pp. 170-1. - ------ - - - - - CHAPTER SEVEN. - -Vidua post mortem mariti sui statim et sine difficultate habeat -maritagium et hereditatem suam, nec aliquid det pro dote sua, vel pro -maritagio suo, vel hereditate sua quam hereditatem maritus suus et ipsa -tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per -quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua. - - A widow, after the death of her husband, shall forthwith and without - difficulty have her marriage portion and inheritance; nor shall she - give anything for her dower, or for her marriage portion, or for the - inheritance which her husband and she held on the day of the death of - that husband; and she may remain in the house of her husband for forty - days after his death, within which time her dower shall be assigned to - her. - - -No amount of forethought on the part of a Crown tenant, setting his -house in order against his decease, could rescue his widow from the -extremely unfortunate position into which his death would necessarily -plunge her. He must leave her without adequate protection against the -tyranny of the king, who might inflict terrible hardships by a harsh use -of rights vested in him for the safeguard of the feudal incidents due to -the Crown as overlord. Newly deprived of her natural protector, she was -under the immediate necessity of conducting a series of delicate -negotiations with a powerful opponent fortified by prerogatives wide and -vague. She might indeed, if deprived of her “estovers,” find herself for -the moment in actual destitution, until she had made her bargain with -the Crown; she had a right, indeed (under normal circumstances) to -one-third of the lands of her late husband (her _dos rationalis_) in -addition to any lands she might have brought as a marriage portion, but -she could only enter into possession by permission of the king, who had -prior claims to hers, and could seize everything by his prerogative of -primer seisin.[414] This chapter provides a remedy. Widows shall have -their rights without delay, without difficulty, and without payment. - ------ - -Footnote 414: - - Cf. _supra_, 78–9. - -I. _The Widow’s Share of Real Estate._ Three words are used:—_dos_, -_maritagium_, and _hereditas_. - -(1) _Dower._ A wife’s dower is the portion of her husband’s lands set -aside to support her in her widowhood. It was customary from an early -date for a bridegroom to make adequate provision for his bride on the -day he married her. Such a ceremony, indeed, formed a picturesque -feature of the marriage rejoicings, taking place literally at the door -of the church, as man and wife returned from the altar. The share of her -husband’s land thus set apart for the young wife was known as her _dos_ -(or dowry), and would support her if her husband died. In theory the -transaction between the spouses partook of the nature of a contract by -which they arranged the extent of the provision to be given and -accepted. The wife’s rôle, however, was a passive one; her concurrence -was assumed. Yet, if no provision was made at all, the law stepped in, -on the presumption that the omission had been unintentional on the -husband’s part, and fixed the dower at one-third of all his lands.[415] - ------ - -Footnote 415: - - See Pollock and Maitland, II. 422-3. The ceremony at the church door, - when resorted to, was no longer an opportunity of giving material - proof of affection to a bride, but a means of cheating her out of what - the law considered her legitimate provision, by substituting something - of less value. - ------ - -John’s Magna Carta contents itself with the brief enactment “that a -widow shall have her dower.” The Charter of 1217 goes farther, -containing an exact statement of the law as it then stood:—"The widow -shall have assigned to her for her dower the third part of all her -husband’s land which he had in his lifetime (_in vita sua_) unless a -smaller share had been given her at the door of the church." Lawyers of -a later age have by a strained construction of the words _in vita sua_, -made them an absolute protection to a wife against all attempts of her -husband to defeat or lessen her dower by alienations granted without her -consent during the subsistence of the marriage.[416] Magna Carta -contains no warrant for such a proposition, although a later clause -(chapter 11) secures the dower lands from attachment by the husband’s -creditors, whether Jews or others. - ------ - -Footnote 416: - - Pollock and Maitland, II. 419. - ------ - -(2) _Maritagium._ It was customary for a land-owner to bestow some share -of his property as a marriage portion upon his daughters, that they -might not come to their husbands as empty-handed brides. The land so -granted was usually relieved from all burdens of service and homage. It -was hence known as _liberum maritagium_, which almost came to be -recognized as a separate form of feudal tenure. Grants for this purpose -could be made without the consent of the tenant’s expectant heirs, -although early English law absolutely prohibited alienation of lands for -any other purpose without their consent. _Maritagium_ was thus “a -provision for a daughter—or perhaps some other near kinswoman—and her -issue.”[417] The husband of the lady was, during the marriage, treated -as virtual owner for all practical purposes; but on his death the widow -had an indisputable title to lands brought with her “in free -marriage.”[418] - ------ - -Footnote 417: - - See Pollock and Maitland, II. 15-16. - -Footnote 418: - - _Liberum maritagium_, considered as a tenure, has various - peculiarities. The lady’s husband became the feudal tenant of her - father. The issue of the marriage were heirs to the lands and would - hold them as tenants of the heir of the donor. For three generations, - however, neither service nor homage was due. After the third - transmission, the land ceased to be specially “free”; the peculiar - tenure came to an end; and the new owner was subject to all the usual - burdens of an ordinary tenant. - ------ - -The obvious meaning, however, has not always been appreciated. Coke[419] -reads the clause as allowing to widows of under-tenants a right denied -(by chapter 8) to widows of Crown tenants—namely “freedom to marry where -they will without any licence or assent of their lords.” This -interpretation is inherently improbable, since the barons at Runnymede -desired to place restrictions on their enemy, the king, not upon -themselves; and it is opposed to the law of an earlier reign, as -expounded by Bracton.[420] - ------ - -Footnote 419: - - _Second Institute_, p. 16. - -Footnote 420: - - See _supra_, p. 253. - ------ - -Daines Barrington[421] invents an imaginary rule of law in order to -explain a supposed exception. An ordinary widow, he declares, could not -in the normal case marry again before the expiry of a year after her -first husband’s death. Some widows, however, were specially privileged. -_Maritagium_ was a right conferred on widows of land-owners to cut short -the period of mourning imposed on others. This is a complete inversion -of the truth; the possession of land always restricted, instead of -extending, freedom of marriage. Several later authorities follow -Barrington’s mistake.[422] - ------ - -Footnote 421: - - _Observations_, pp. 8-10. - -Footnote 422: - - _E.g._ Thomson, _Magna Charta_, p. 172. Dr. Stubbs has his own reading - of _maritagium_, namely, “the right of bestowing in marriage a feudal - dependant.” See Glossary to _Sel. Charters_, p. 545. The word may - sometimes bear this meaning, but not in Magna Carta. - ------ - -Such mistakes when made by recent writers are the more inexcusable in -view of the clear explanation given a century ago by John Reeves,[423] -who distinguished between two kinds of marriage portion: _liberum -maritagium_, whence no service whatever was exigible for three -generations, and _maritagium servitio obnoxium_, liable to the usual -services from the first, although exempt from homage until after the -death of the third heir.[424] - ------ - -Footnote 423: - - See his _History of English Law_, I. 121 (3rd ed.). - -Footnote 424: - - Cf. _Ibid._ I. 242, where Reeves rightly points out that Coke is - mistaken, although he fails to notice the distinction drawn in the - passage criticized between the Crown and mesne lords. - ------ - -(3) _Hereditas._ The first two words are thus readily understood: but -what is _hereditas_? Is it simply another name for one of these, or is -it something different? It is possibly used to denote estates acquired -by the wife, not as a marriage portion, but in any other way, for -example by the opening of a succession on the death of someone, her -father or other relative, of whom she is the heir. - -II. _The Widow’s Share of Personal Estate._ The chapter of the Charter -at present under discussion says nothing as to the widow’s right to any -portion of her deceased husband’s goods and chattels. Chapter 26, -however, confirms the existing law which secured to her, in the normal -case, one third of her husband’s personal estate, as will be more fully -explained hereafter. - -III. _Provision for the Widow’s immediate Needs._ Many intricate -questions might arise before it was possible to divide the land into -aliquot portions and so “assign” the exact one-third due to her. -Meanwhile, temporary provision must be made for her support. This was of -two kinds: (1) _Quarantine._ Magna Carta confirmed her right to remain -in the family home for a space of forty days. This was known to later -lawyers as the widow’s quarantine.[425] The Charter of 1216 notes an -exception to the general rule, on which John’s Charter is silent: if the -deceased husband’s chief place of residence had been a castle, the widow -could not stay there; feudal strongholds were not for women. In such -cases, however, so the reissue of 1216 carefully provided, another -residence must be immediately substituted. In later days, widows -unlawfully deprived of their quarantine were provided with a remedy by -means of a writ, known as “_de quarentina habenda_,” directing the -sheriff to take summary procedure to do her right.[426] - ------ - -Footnote 425: - - The “unknown charter” (see Appendix) specified sixty days, but Magna - Carta fixed the period at forty. - -Footnote 426: - - See Coke, _Second Institute_, p. 16. - ------ - -(2) _Estovers of Common._ The widow required something more than the -protection of a roof; for, until her dower lands had been delivered to -her, no portion of the produce of her late husband’s manors could be -strictly called her own. The estate was held “in common” between her and -her husband’s heir (or between her and the “guardian” of that heir’s -estates). It was only fair that, until her rights were ascertained, she -should be allowed a reasonable share of the produce. Neither John’s -Charter nor the first issue of Henry III. said anything on this head. -The reissue of 1217 supplied the omission, expressly confirming the -widow of a Crown tenant in the right to _rationabile estoverium suum -interim de communi_. Many explanations of the word _estovers_ (generally -used in the plural) might be cited: from Dr. Johnson, who defines it -broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it -to “firewood.”[427] It was the right to use certain parts of the natural -produce of land or other property for the supply of one’s personal or -domestic wants. Such rights varied in extent, however; from the general -right to a full supply of all things necessary for the maintenance of -life, down to the restricted right to take one kind of produce for one -specific purpose only.[428] - ------ - -Footnote 427: - - See Glossary to _Select Charters_, p. 539: “firewood; originally - provision or stuff generally.” - -Footnote 428: - - Several instances of the wider use of the word may be given. Bracton - (III. _folio_ 137) explains that, pending the trial of a man accused - of felony, his lands and chattels were set aside by the sheriff until - it was determined whether they were to become the king’s property by - the conviction of the accused; meanwhile the imprisoned man and his - family out of the revenue received “reasonable estovers.” (Cf. - _infra_, c. 32.) The Statute of Gloucester (6 Edward I. c. 4) mentions - incidentally one method of stipulating for a return from property - alienated, viz., to take the grantee bound to provide the grantor in - estovers of meat or clothes. (“_A trouver estovers en vivre ou en - vesture_”). Blackstone again (_Commentaries_, I. 441) applies the name - _estovers_ to the alimony or allowance made to a divorced woman "for - her support out of the husband’s estate." Sometimes, however, the word - was used in a more restricted sense. Coke (_Second Institute_, p. 17) - says, "when _estovers_ are restrained to woods, it signifieth - housebote, hedgebote, and ploughbote,"—that is, such timber as was - required for repairing houses, hedges, and ploughs. Apparently it had - an even more restricted scope when used to describe the right of those - who dwelt in the king’s forests, viz., to take dead timber as - firewood. (Cf. _infra_, c. 44.) - ------ - -It seems natural to infer that in this passage of Magna Carta the word -bears its wider signification. Such was Coke’s view,[429] who held that -it implied the widow’s right to “sustenance” of every kind, including -the right to kill such oxen on the manor as she required for food. -Estovers “of common” should thus be read as extending the widow’s right -of consumption for her own and her household’s use over every form of -produce held “in common” by her and the heir’s guardian prior to a final -division.[430] - ------ - -Footnote 429: - - _Second Institute_, p. 17. - -Footnote 430: - - There seems no reason to restrict her estovers to a right over - “commons,” in the sense of pastures and woods held “in common” by her - late husband and the villeins of his manor. Some such meaning, indeed, - attaches to the phrase “dower of estovers” met with in later reigns, - _e.g._ in _Year Book_ of 2 Edward II. (Selden Society), p. 58, where - it was held that such a right (claimed as a permanent part of dower) - did _not_ belong to a widow. - ------ - - - - - CHAPTER EIGHT. - -Nulla vidua distringatur ad se maritandum dum voluerit vivere sine -marito; ita tamen quod securitatem faciat quod se non maritabit sine -assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo -tenuerit, si de alio tenuerit. - - Let no widow be compelled to marry, so long as she prefers to live - without a husband; provided always that she gives security not to - marry without our consent, if she holds of us, or without the consent - of the lord of whom she holds, if she holds of another. - - -Wealthy ladies, who were wise, were glad to escape with their children -from John’s clutches by agreeing to buy up all the Crown’s oppressive -rights for a lump sum. In the very year of Magna Carta, Margaret, the -widow of Robert fitz Roger, paid £1000;[431] and a few years earlier -Petronilla, Countess of Leicester, expended as much as 4000 marks.[432] -Though the circumstances of each of these cases seem to have been -peculiar, the Pipe Rolls contain numerous smaller sums; in 1206 Juliana, -widow of John of Kilpec, accounts for 50 marks and a palfrey.[433] -Horses, dogs, and falcons were frequently given in addition to money -fines, and testify eloquently to the greed of the king, the anxiety of -the victims, and the extortionate nature of the whole system. In return, -formal charters were usually obtained, a good example of which is one -granted to Alice, countess of Warwick, dated 13th January, 1205,[434] -containing many concessions; among others that she should not be forced -to marry; that she should be sole guardian of her sons; that she should -have one-third part of her late husband’s lands as her reasonable dower; -and that she should be quit from attendance at the courts of the shire -and of the hundred, and from payment of sheriff’s aids during her -widowhood. Another charter of 20th April, 1206, shows what a widow had -to expect if she failed to make her bargain with the Crown. John granted -to Richard Fleming, an alien as his name implies, and presumably one of -his not too reputable mercenaries, the wardship of the lands of the -deceased Richard Grenvill with the rights of marriage of the widow and -children.[435] - ------ - -Footnote 431: - - See _Pipe Roll_ of 16 John, cited Madox I. 491. - -Footnote 432: - - See _Pipe Roll_ of 6 John, cited Madox I. 488. - -Footnote 433: - - See _Pipe Roll_ of 6 John, cited Madox I. 488. - -Footnote 434: - - _New Rymer_, I. 91. - -Footnote 435: - - See _New Rymer_, I. 92. - ------ - -Magna Carta sought to substitute a general rule of law for the -provisions of these private charters purchased by individuals at ruinous -expenditure. It contained no startling innovations, but only repeated at -greater length the promises made (and never kept) by Henry I. in the -relative part of clause 4 of his coronation charter. No widow was to be -constrained to marry again against her will. This liberty must not be -used, however, to the prejudice of the Crown’s lawful rights. Although -the widow need not marry as a second husband the man chosen by the king -without her consent, neither could she marry without the king’s consent -the man of her own choice. Magna Carta specially provided that she must -find security to this effect, an annoying, but not unfair, stipulation. -The Crown, in later days, compelled the widow, when having her dower -assigned to her in Chancery, to swear not to marry without licence; and -if she broke her oath, she had to pay a fine, which was finally fixed at -one year’s value of her dower.[436] - ------ - -Footnote 436: - - See Coke, _Second Institute_, 18. - ------ - - - - - CHAPTER NINE. - -Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro -debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum -reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse -capitalis debitor sufficit ad solucionem debiti; et si capitalis debitor -defecerit in solucione debiti, non habens unde solvat, plegii -respondeant de debito; et, si voluerint, habeant terras et redditus -debitoris, donec sit eis satisfactum de debito quod ante pro eo -solverint, nisi capitalis debitor monstraverit se esse quietum inde -versus eosdem plegios. - - Neither we nor our bailiffs shall seize any land or rent for any debt, - so long as the chattels of the debtor are sufficient to repay the - debt; nor shall the sureties of the debtor be distrained so long as - the principal debtor is able to satisfy the debt; and if the principal - debtor shall fail to pay the debt, having nothing wherewith to pay it, - then the sureties shall answer for the debt; and let them have the - lands and rents of the debtor, if they desire them, until they are - indemnified for the debt which they have paid for him, unless the - principal debtor can show proof that he is discharged thereof as - against the said sureties. - - -The Charter now passes to another group of grievances. Chapters 9 to 11 -treat of the kindred topics of debts, usury, and the Jews, and should be -read in connection with each other, and with chapter 26, which regulates -the procedure for attaching the personal estate of deceased Crown -tenants who were also Crown debtors. The present chapter, although quite -general in its terms, had special reference to cases where the Crown was -the creditor; while the two following chapters treated more particularly -of debts contracted to Jews or other money lenders. - -The fact that John’s subjects owed debts to his exchequer did not, of -course, imply that they had borrowed money from the king. The sums -entered as due in the Rolls of the Exchequer represented obligations -which had been incurred in many different ways. What with feudal -incidents and scutages, and indiscriminate fines, so heavy in amount -that they could only be paid by instalments, a large proportion of -Englishmen must have been permanently indebted to the Crown. At John’s -accession most of the northern barons still owed the scutages demanded -by Richard. John remitted none of the arrears, while imposing new -burdens of his own: the attempts made to collect these debts intensified -the friction between John and his barons.[437] It was, further, the -Crown’s practice wherever possible, to make its debtors find sureties -for their debts, thus widening the circle of those liable to distraint, -while the officers who enforced payment were guilty of irregularities, -which became the cloaks of grave abuses. - ------ - -Footnote 437: - - See _supra_, p. 89. - ------ - -Three equitable rules were laid down. (1) The personal estate of a -debtor must be exhausted before his real estate or its revenues were -attacked. To take away his land might deprive him ultimately of his -means of livelihood, since the chattels left to him could not yield a -permanent revenue.[438] The rule here laid down by Magna Carta has not -found a place in modern systems of law, which usually leave the option -with the creditor. (2) The estate (both real and personal) of the chief -debtor had to be exhausted before proceedings could be instituted -against his sureties. Magna Carta thus enunciated in English law a rule -which has found favour in most systems of jurisprudence. The man who is -only a surety for another’s debt is entitled to immunity until the -creditor has taken all reasonable steps against the principal debtor. -Such a right is known to the civil law as _beneficium ordinis_, and to -modern Scots law as the “benefit of discussion.” (3) If these sureties -had, after all, to pay the debt in whole or in part, they were allowed -“a right of relief” against the principal debtor, being put in -possession of his lands and rents. This rule has some analogy with the -equitable principle of modern law, which gives to the surety who has -paid his principal’s debt, the right to whatever property the creditor -held in security of that debt. - ------ - -Footnote 438: - - The _Dialogus de Scaccario_, II. xiv., had, half a century earlier, - laid down rules even more favourable to the debtor in two respects: - (_a_) the order in which moveables should be sold was prescribed; and - (_b_) certain chattels were absolutely reserved to the debtor, _e.g._ - food prepared for use; and, in the case of a knight, his horse with - its equipment. - ------ - -Even when the Crown’s bailiffs obeyed Magna Carta by leaving land alone -when chattels were available, they might still wantonly inflict terrible -hardship upon debtors. Sometimes they seized goods valuable out of all -proportion to the debt; and an Act of 1266[439] forbade this practice -when the disproportion was “outrageous.” Sometimes they attempted to -extort prompt payment or to ruin their victim by selecting whatever -chattel was most indispensable to him. Oxen were taken from the plough -and allowed to die of starvation and neglect. The practice of the -exchequer, in the days of Henry II., had been more considerate; oxen -were to be spared as far as possible where other personal effects were -available.[440] John’s charter has no such humane provision,[441] and -the abuse continued. The Act of 1266, already cited, forbade officers to -chase away the owner who came to feed his impounded cattle at his own -expense. The _Articuli super cartas_[442] went further; prohibiting the -seizure of beasts of the plough altogether so long as other effects -might be attached of sufficient value to satisfy the debt.[443] - ------ - -Footnote 439: - - 51 Henry III., stat. 4 (among “statutes of uncertain date” in - _Statutes of Realm_, I. 197). - -Footnote 440: - - See _Dialogus de Scaccario_, II. xiv.: “_Mobilia cujusque primo - vendantur; bobus autem arantibus, per quos agricultura solet exerceri, - quantum poterint parcant_” (p. 148). - -Footnote 441: - - Cf., however, the rule as to amercements in c. 20. - -Footnote 442: - - 28 Edward I. c. 12. See also Statute of Marlborough, 52 Henry III. c. - 15. - -Footnote 443: - - Henry’s reissues make two small additions explaining certain points of - detail: (_a_) the words “_et ipse debitor paratus sit inde - satisfacere_” precede the clause giving sureties exemption; and (_b_) - the sureties are declared liable to distraint, not merely when the - chief debtor has nothing, but also when he can pay, but will not, - “_aut reddere nolit cum possit_.” - - - - - CHAPTER TEN. - -Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur -antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra -etatem, de quocumque teneat; et si debitum illud inciderit in manus -nostras, nos non capiemus nisi catallum contentum in carta. - - If one who has borrowed from the Jews any sum, great or small, die - before that loan be repaid, the debt shall not bear interest while the - heir is under age, of whomsoever he may hold;[444] and if the debt - fall into our hands, we will not take anything except the principal - sum[445] contained in the bond. - - ------ - -Footnote 444: - - The words “_de quocumque teneat_” include both Crown tenants and - under-tenants, and suggest that only freeholders were to receive - protection from this clause. - -Footnote 445: - - _Catallum_ and _lucrum_ were the technical words used for “principal” - and “interest” respectively in bonds and other formal documents. See, - _e.g._ Round, _Ancient Charters_ (Pipe Roll Society, Vol. X.) No. 51, - and John’s Charter to the Jews, _Rot. Chart._, p. 93. - ------ - -The taking of usury, denied by law to Christians, was carried on by Jews -under great disadvantages and risks; and the rates of interest were -proportionately high, ranging in normal cases from two to four pence per -pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.[446] -During his nonage a ward had nothing wherewith to discharge either -principal or interest, since he who had the wardship drew the revenue. -At the end of a long minority an heir would have found the richest -estates swallowed up by a debt which had increased automatically ten or -twenty-fold.[447] - ------ - -Footnote 446: - - See Pollock and Maitland, I. 452, and Round’s _Ancient Charters_, - notes to Charter No. 51. - -Footnote 447: - - The Crown was sometimes called in to enable a creditor, overwhelmed by - the accumulation of interest, to come to a settlement with his - creditors. In 1199 Geoffrey de Neville gave a palfrey to the king to - have his aid “in making a moderate fine with those Jews to whom he was - indebted.” See _Rotuli de Finibus_, p. 40. Ought we to view John’s - intervention as an attempt to arrange a reasonable composition with - unreasonable usurers, or was it simply a conspiracy to cheat - Geoffrey’s creditors? - -Magna Carta prevented this great injustice to the ward; but, in doing -so, inflicted, according to modern standards, some injustice on the -money-lenders. During the minority no interest at all, it was provided, -should accrue to Jew or other usurer; while, if the debt passed to the -Crown, the king must not use his prerogative to extort more than a -private debtor might; he must confine himself to the principal sum -specified in the document of debt. The provision that no interest should -run during minorities was confirmed by the Statute of Merton,[448] which -made it clear, however, that its provisions should not operate as a -discharge of the principal sum or of the interest which had accrued -before the ancestor’s death. The Statute of Jewry, of uncertain -date,[449] made interest irrecoverable by legal process. All previous -acts against usury were repealed by the statute 37 Henry VIII. c. 9, -which, however, forbade the exaction of interest at a higher rate than -10 per cent., and this remained the legal rate until reduced to 8 per -cent, by 21 James I. c. 17. Money-lending and the usury laws are -subjects closely bound up with the repressive measures against the Jews. - -Footnote 448: - - 20 Henry III. c. 5. - ------ - -Footnote 449: - - _Statutes of Realm_, I. 221. - ------ - -I. _The History of the Jews in England._ The policy of the Crown towards -those aliens of the Hebrew race who sought its protection varied at -different times, and three periods may be distinguished. From the Norman -Conquest to the coronation of Richard I. the Jews were fleeced and -tolerated; during the reigns of Richard and John and the minority of -Henry III. they were fleeced and protected; and finally they were -fleeced and persecuted, this last stage extending from the formation of -the alliance between Henry and Innocent IV. down to the ordinance of -1290, which banished in perpetuity all Jews from England. The details of -this long story of hardship and oppression, tempered fitfully by royal -clemency, which had always to be well paid for, can here be glanced at -only in the barest outline. There were Jews in England before the Norman -Conquest; but the first great influx came in the reign of Rufus, whose -financial genius recognized in them an instrument for his gain, and who -would the more gladly protect them, as likely to prove a thorn in the -side of his enemy the Church. A second influx resulted from the -persecution of Israelites on the Continent of Europe, consequent on the -failure of the first Crusade. This new alien immigration seems to have -excited mistrust in England, and led to the disarming of all Jews in -1181, a measure which left them at the mercy of the Christian rabble. - -Accordingly, when a disturbance occurred at the coronation of Richard -I., on 3rd September, 1189, owing to the imprudence of some officious -Jews, a general massacre took place in London, while York and other -towns were not slow to follow the example. The king was moved to anger, -not so much by the sufferings of the Jews, as by the destruction of -their bonds, since that indirectly injured the Crown; for the more the -Jews had, the more could be extorted from them, and when the written -bond had been burned, no evidence of the debt remained. Richard, -returning from his captivity a few years later, in urgent need of money, -determined to prevent a repetition of such interference with a valuable -source of revenue. His motive was selfish, but that was no reason why -the Israelites should not pay for a measure designed for their own -protection. Assembled at Nottingham they granted a liberal aid, in -return for a new expedient devised to secure their bonds. This scheme, -for the details of which Richard was probably indebted to the genius of -his great justiciar, archbishop Hubert Walter, was of a comprehensive -and practical character. In London, York, and other important cities, -offices or bureaus were established under the Crown’s protection, -containing treasure chests, called _archae_, fitted with triple locks, -to be opened only at stated intervals in the presence of special -custodians, known as chirographers, who kept the keys. These custodians -were usually four in number, two Christians and two Jews, chosen by -juries specially summoned for that purpose by the sheriff of the county, -and they were obliged to find sureties that they would faithfully -perform their important functions. Only in their presence could loans be -validly contracted between Jews and Christians; and it was their duty to -see the terms of all such bargains reduced to writing in a regular -prescribed form in duplicate copies. No contract was binding unless a -written copy or chirograph had been preserved in one or other of those -repositories or arks, which thus served every purpose of a modern -register, and other purposes as well. If the money-lender suffered -violence and was robbed of his copy of the bond, the debtor was still -held to his obligations by the duplicate which remained. If the Jew and -all his relatives were slain, even then the debtor did not escape, but -was confronted by a new and more powerful creditor, the king himself, -armed with the chirograph. Lists of all transactions were preserved, and -all acquittances and assignments of debts, known from their Hebrew name -as “starrs,” had also to be carefully enrolled.[450] Minute and -stringent rules, codified by Hubert Walter in the terms of a written -commission, were issued to the judges when starting on their circuit in -September, 1194.[451] - -Footnote 450: - - Cf. J. M. Rigg, _Sel. Pleas of the Jewish Exchequer_, p. xix. - ------ - -Footnote 451: - - See chapter 24 of the _Forma procedendi in placitis coronae regis_, - cited in _Sel. Charters_, 262. - ------ - -If this cunningly-devised system prevented the Christian debtor from -evading his obligations, it also placed the Jewish creditor completely -at the mercy of the Crown; for the exact wealth of every Jew could be -accurately ascertained from a scrutiny of the contents of the _archae_. -The king’s officials were enabled to judge to a penny how much it was -possible to wring from the coffers of the Jews, whose bonds, moreover, -could be conveniently attached until they paid the tallage demanded. The -custom of fixing on royal castles as the places for keeping these arks, -probably explains the origin of the special jurisdiction exercised over -the Jews by the king’s constables (“_qui turres nostras -custodierunt_”).[452] In the dungeons of their strongholds horrible -engines were at hand for enforcing obedience to their awards. Such -jurisdiction, however, extended legitimately over trivial debts -only.[453] All important pleas were reserved for the officials of the -exchequer of the Jews, a special government department, which controlled -and regulated the whole procedure. Evidences of the existence of this -separate exchequer have been traced back to 1198, although no record has -been found of a date prior to 1218.[454] John, while despising the Jews, -was not slow to realize that in them the Crown possessed an asset of -great value. It was his policy to protect their wealth as a reservoir -from which he might draw in time of need, contenting himself meanwhile -with comparatively moderate sums. Thus, by a charter dated 10th April, -1201, he took 4000 marks in return for confirming their privileges; and -he obtained a second payment of a similar amount after his rupture with -Rome. The charter of 1201 was only a confirmation of rights already -enjoyed by all English Jews in virtue of the liberal interpretation put -upon the terms of an earlier charter which had been granted by Henry I. -to a particular father in Israel with his household, but subsequently -extended, with the tacit concurrence of the Crown, to the whole Hebrew -race. Under John’s charter they enjoyed valuable and definite -privileges, which, while leaving them completely in the royal power, -exempted them from all jurisdictions except those of the king and his -castellans; while, if a Christian brought a complaint against a Jew, it -was to be judged by the peers of that Jew.[455] - ------ - -Footnote 452: - - See John’s Charter to the Jews of 10th April, 1201, in _Rotuli - Chartarum_, p. 93. - -Footnote 453: - - See Pollock and Maitland, I. 453, n. - -Footnote 454: - - Rigg, _ibid._, xx. - -Footnote 455: - - “_Judicata sit per pares Judei._” See _Rot. Chart._, I. 93. - -When a repetition of the massacre which had disgraced his brother’s -coronation threatened to take place in 1203, John promptly ordered the -mayor and barons of London to suppress all such attempts. In terms -contemptuous alike to the Londoners and to the Jews his writ declared -that his promise of protection, “even though granted to a dog,” must be -held inviolate.[456] Protection was accorded to them, however, only that -they might furnish a richer booty to the Crown, when the proper occasion -arrived. Suddenly John issued orders for a wholesale arrest of the Jews -throughout England. The most wealthy members of their community were -brought together at Bristol, and, on 1st November, 1210, were compelled -to give a reluctant consent to a general tallage at the enormous sum of -66,000 marks. Apparently this amount had been fixed as the result of an -exaggerated estimate of the contents of the _archae_, and was more than -they could afford to pay. The methods adopted by John’s castellans to -extort the arrears of the amount are well-known, especially in the case -of the unfortunate Jew of Bristol, from whom seven teeth were extracted, -one each day, until he consented to pay the sum demanded.[457] - ------ - -Footnote 456: - - _Rot. Pat._, I. p. 33, and _New Rymer_, I. 89. The date is 29th July, - 1203. - -Footnote 457: - - See Rigg, _Sel. Pleas of the Jewish Exchequer_, xxiv. - ------ - -It was doubly hard that the race thus plundered and tortured by the king -should be subjected to harsh treatment by the king’s enemies on the -ground that they were pampered protégés of the Crown. Yet such was the -case: on Sunday, 17th May, 1215, when the insurgents on their way to -Runnymede entered London, they robbed and murdered the Jews, using the -stones of their houses to fortify the city walls.[458] It is not to be -wondered then that the same insurgents in forcing on King John the -demands which formed the basis of Magna Carta, included provisions -against usury. - ------ - -Footnote 458: - - See Miss Morgate, _John Lackland_, p. 230. - ------ - -The advisers of the young Henry in 1216 omitted these clauses, but not -from love of the Jews. They were unwilling to impair so useful a -financial resource, which has been compared to a sponge which slowly -absorbed the wealth of the nation to be quickly squeezed dry again by -the king. The Jews were always willing to disgorge a portion of their -gains in return for protection in the rest, even of a contemptuous and -intermittent kind; but their lot became hard indeed when Henry III., -urged by popular clamour and the wishes of the Pope, began a course of -active persecution, without relaxing the rigour of those royal exactions -which had previously been the price of protection. In 1253, a severe -ordinance inflicted a long list of vexatious regulations on the Hebrews, -almost converting their quarters in each great city into ghettos, like -those of the Continent of Europe. This was merely the commencement of a -series of oppressive measures, the natural outcome of the growing hatred -with which Christians regarded Jews,—a result partly of the heated -imagination of the rabble, ready to believe unauthenticated stories of -the crucifixion of Christian children, and partly of the fact that rich -Jews, in spite of all persecution, had possessed themselves of the -landed estates of freeholders and nobles and claimed to act as lords of -Christian tenants, enjoying wardships, escheats, and advowsons, as any -Christian baron might have done. The scope of this enquiry excludes any -detailed account of the stages through which repressive legislation -passed, until the lot of the Jews in England became intolerable. The -Statute of Jewry, however,[459] was of exceptional importance; taking -from usurers the right to recover interest by legal process, and -limiting execution for the principal to one half of the debtor’s lands -and chattels. In return some temporary concessions were granted. One by -one, all these privileges were withdrawn, until the end came in 1290 -with the issue of a decree of perpetual banishment by Edward I., who was -compelled to sacrifice the cherished right of keeping a royal preserve -of Jews in deference to the culmination of national prejudice in a storm -of unreasoning hate. - ------ - -Footnote 459: - - _Statutes of Realm_, I. 221. - -II. _Legal Position of the Jews._ All through these vicissitudes of -fortune the legal status of the Jews had remained unchanged in all -essentials. Their position was doubly hard; they were plundered by the -Crown and persecuted by the populace. If John saved them from being -robbed by his Christian subjects, it was that they might be better worth -the robbing by a Christian king. Yet, for this protection, at once -fitful and interested, the Jews had to pay a heavy price; not only were -they liable to be tallaged arbitrarily at the king’s will, without limit -and without appeal, but they were hated by rich and poor as the king’s -allies. Such feelings would of themselves account for the unsympathetic -treatment accorded to money-lenders by Magna Carta; two other reasons -contributed. All usury was looked on in the Middle Ages as immoral -(although illegal only for Christians), while excessive interest was -habitually exacted. - -The feudal scheme of society had no place for Jews and afforded them no -protection. Not only did they share the disabilities common to all -aliens, but these were not in their case mitigated by the protection -extended to other foreigners by their own sovereigns and by the Church. -As exiles in a foreign land, exposed to the attacks of a hostile mob, -they were forced to rely absolutely on the only power strong enough to -protect them, the arm of the king. The Jews became the mere serfs, the -perquisites or chattels of the Crown, in much the same way as the -villeins became the serfs or chattels of their lords. Rights they might -have against others by royal sufferance, but they had no legal remedy -against their master. In the words of Bracton,[460] “the Jew could have -nothing of his own, for whatever he acquired, he acquired not for -himself but for the king.” His property was his merely by royal -courtesy, not under protection of the law. When he died, his relations -had no legal title to succeed to his mortgages, goods, or money; the -exchequer, fortified by an intimate knowledge of the extent of his -wealth (for that consisted chiefly in registered bonds), stepped into -possession and could do what it pleased. The king usually, indeed, in -practice contented himself with one-third of the whole; but if the -relations of the deceased Jew received less than the balance of -two-thirds, they would be well advised to offer no remonstrance. The -Crown did not admit a legal obligation; and there was no one either -powerful enough, or interested enough, to compel the fulfilment of the -tacit understanding which restricted the royal claims. Whatever the Jew -had amassed belonged legally and potentially not to him but to the -Crown. Magna Carta, in striking at money-lenders, was striking at the -king. - ------ - -Footnote 460: - - _Folio_, 386b. - ------ - - - - - CHAPTER ELEVEN. - - -Et si quis moriatur, et debitum debeat Judeis, uxor ejus habeat dotem -suam, et nichil reddat de debito illo; et si liberi ipsius defuncti qui -fuerint infra etatem remanserint, provideantur eis necessaria secundum -tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo -servicio dominorum; simili modo fiat de debitis que debentur aliis quam -Judeis. - - And if anyone die indebted to the Jews, his wife shall have her dower - and pay nothing of that debt; and if any children of the deceased are - left under age, necessaries shall be provided for them in keeping with - the holding of the deceased; and out of the residue the debt shall be - paid, reserving, however, service due to feudal lords; in like manner - let it be done touching debts due to others than Jews. - - -If the preceding chapter deprived Jews of part of the interest they -claimed, the present one deprived them also in certain circumstances of -part of the security on which they had lent the principal. The widow’s -dower lands were discharged from her husband’s debts, only two-thirds of -the original security thus remaining under the mortgage. Even this must -submit to a prior claim, namely the right of the debtor’s minor children -to such “necessaries” as befitted their station in life. Magna Carta, at -the same time, with characteristic care for feudal rights, provided that -the full service due to lords of fiefs must not be prejudiced, whoever -suffered loss. Finally, these rudiments of a law of bankruptcy were made -applicable to Gentile creditors equally as to Jews. These provisions, -with others injuriously affecting the royal revenue, were omitted in -1216, not to be restored in future charters: but they were re-enacted in -their essential principle, though not in detail, by the Statute of -Jewry, which limited a creditor’s rights of execution to one moiety of -his debtor’s lands and chattels. - - - - - CHAPTER TWELVE. - -Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune -consilium regni nostri, nisi ad corpus nostrum redimendum, et -primogenitum filium nostrum militem faciendum, et ad filiam nostram -primogenitam semel maritandam, et ad hec non fiat nisi racionabile -auxilium: simili modo fiat de auxiliis de civitate Londonie. - - No scutage nor aid shall be imposed in our kingdom, unless by common - counsel of our kingdom, except for ransoming our person, for making - our eldest son a knight, and for once marrying our eldest daughter; - and for these there shall not be levied more than a reasonable aid. In - like manner it shall be done concerning aids from the citizens of - London. - - -This is a famous clause, greatly valued at the time it was framed -because of its precise terms and narrow scope (which made evasion -difficult), and even more highly valued in after days for exactly -opposite reasons. It came indeed to be interpreted in a broad general -sense by enthusiasts who, with the fully-developed British constitution -before them, read the clause as enunciating the modern doctrine that the -Crown can impose no financial burden whatsoever on the people without -consent of Parliament. Before discussing how far such an estimate is -justified, it will be necessary to examine the historical context, with -special reference to two classes of John’s subjects; his feudal tenants, -and the citizens of London respectively. - -I. _Protection of Crown Tenants from arbitrary Exactions._ The pecuniary -obligations of the barons may be arranged in two groups according as -they depended on the king’s own actions, or were determined by -circumstances which lay beyond the royal control. Payments of the former -type (such as reliefs and amercements), exigible only at fixed dates or -on the occurrence of specific events, were treated of elsewhere in Magna -Carta. The present chapter sought to prevent John from extorting -additional payments either absolutely at his own discretion, or because -of situations which he had purposely created as excuses for demanding -money. The entire field of such arbitrary feudal dues was covered by the -words “scutages” and “extraordinary aids,”[461] the use of which -protected the barons from every sort of compulsory payment which might -be demanded by the king at his own discretion. - ------ - -Footnote 461: - - “Extraordinary” is here applied to all aids other than the three - normal ones which, falling due each on a definite occasion, come under - the opposite group of fixed payments. - ------ - -(1) _Scutage._ The development of the system described by this name has -been traced in the Historical Introduction.[462] Used at first as an -expedient for substituting, in the Crown’s option, money payments for -military service, it became, under John, a regular source of revenue, -imposed almost every year on one pretext or another, while it was levied -at an increased rate, and under conditions of a vexatious and burdensome -nature. If any one cause contributed, more than the others, to the -rebellion which culminated at Runnymede, it was John’s method of -imposing scutages. This chapter, then, attempted to strike at the common -root from which many grievances grew. The Crown was no longer to be left -sole judge of the occasions on which a scutage might be demanded. “The -common consent (or counsel) of the realm” must first be obtained. If -this provision had been carried into practice, it would have removed the -supreme control of the system of scutages from the Crown which received -the money, to the Crown tenants who paid it. This truly radical remedy -included the remedy of all minor abuses as well, since the collective -body of barons who could refuse payment unconditionally, might _a -fortiori_ make grants under such conditions as they chose. Henceforward -it would lie with them to say, on each occasion, whether the old normal -20s. per knight’s fee should be superseded by some other rate, either -higher or lower. This provision was never enforced, being omitted -altogether from the reissue of 1216, while the clause substituted for it -in the Charter of 1217 took an entirely different form.[463] - ------ - -Footnote 462: - - See _supra_, 86–93. - -Footnote 463: - - See _supra_, 172–3. - ------ - -(2) _Feudal aids._ It was recognized from an early date that in -emergencies feudal vassals ought to contribute to their lord’s support -in proportion to the extent of their holdings. Such payments were known -as aids, and were originally supposed to be free-will offerings.[464] By -John’s reign they had fallen into two groups—ordinary and extraordinary. -The former, three in number, were only dealt with incidentally by the -Charter.[465] It is with the “extraordinary” aids that this chapter -specially occupies itself. These are placed in the same position as -scutages: the Crown cannot exact either, “unless by common counsel of -the realm.” - ------ - -Footnote 464: - - Cf. _supra_, 80–2. - -Footnote 465: - - These three aids were carefully specified, and a reasonable rate was - stipulated for, but not defined. In this respect the treatment here - accorded to _aids_ is less satisfactory than that of _reliefs_ in - chapter 2, which carefully defined the amount to be paid. It is - probable that the framers of the present chapter relied on existing - usage, which seems to have regarded the normal aid as one-fifth of the - normal relief, _i.e._ as 20s. per knight’s fee. An alternative - explanation is also possible, that the same “common counsel” which had - the right to veto extraordinary aids, was also expected to determine - the reasonable amount of the ordinary aids. - ------ - -II. _Protection of Citizens of London from arbitrary Exactions._ Some -attempt was made to protect the men of London, as well as the Crown -tenants, from John’s demands for money. The insurgent leaders in this -way discharged part of their debt to an ally with special claims upon -their gratitude.[466] The Articles of the Barons had contained several -important provisions affecting the capital; and these were embodied in -the Charter in slightly altered terms, which suggest some influence at -work not altogether friendly to the citizens.[467] The present clause of -the completed charter, for example, uses only one word, “_aids_,” where -the 32nd of the Articles of the Barons had referred to “tallages and -aids.” There is no evidence to show whether the omission had been -deliberately planned, or was merely the result of inadvertence; and the -ambiguity inherent in both words makes it dangerous to hazard a dogmatic -opinion on the practical effect of the alteration. Yet a clearly-marked -line can be traced between the respective meanings of the two terms when -they are technically used. - ------ - -Footnote 466: - - See _supra_, p. 42. - -Footnote 467: - - See article 23 (which became c. 33), article 31 (c. 41), and article - 32 (cc. 12 and 13), and cf. _supra_, pp. 140-1. Whether article 12 (c. - 35) was more a benefit to, than a restraint upon, traders seems - doubtful. - ------ - -(1) “_Aid_” is the vaguer word, applicable to every payment which can be -regarded as in any sense a free-will offering. It embraced gifts to the -Crown, whether from prelate or burgess or feudal baron. London was -stimulated towards acts of generosity by kings of England both before -and after John. There were times when “voluntary” aids, like the -“benevolences” of Tudor days, could not safely be withheld. - -(2) “_Tallage_” was a tax levied at a feudal lord’s arbitrary will upon -more or less servile dependants, who had neither power nor right to -refuse. The frequency of these exactions and the sums taken depended -solely on the lord’s caprice, restrained by no law, but only by such -limits as an enlightened self-interest or regard for public opinion -might dictate. Liability to arbitrary tallage was thus one of the chief -marks of an unfree status, and was contrasted with the impositions -levied on those freeholders who held by knight’s service, by socage, or -by frankalmoin. The owner of the smallest manor, like the owner of the -greatest barony, might tallage his own villeins; and the king had a -similar privilege over a wider field. His rights extended even over -civic communities who held royal charters, since towns were -theoretically on the royal demesne, and therefore liable to tallage. The -great city of London, in spite of its growing wealth, its political -importance, and its list of chartered privileges, still shared this -liability.[468] - ------ - -Footnote 468: - - This statement, for which evidence is given _infra_, is not always - admitted. Taswell-Langmead, _Eng. Const. Hist._, p. 107, says “The - city of London can never have been regarded as a demesne of the - Crown.” - ------ - -(3) _Comparison of tallage and aid._ The tallage, as a forced payment, -thus differed fundamentally from the nominally free “aid,” while two -minor points of difference may also be noted. In arranging an aid the -givers usually suggested the amount, though the king might reject the -offer as insufficient; while the amount of a tallage, on the other hand, -was arbitrarily fixed by the Crown. Further, while the aid granted by a -community was a joint offering which the citizens assessed and collected -by their own officers, and for which they admitted a collective -responsibility, the Crown itself allocated on whom it pleased the -particular sums of tallage to be paid by each individual, no joint -liability being admitted by those who had to pay. It was obviously to -the advantage of a borough to forestall, by the present of a liberal -aid, the Crown’s anticipated demand for a tallage, for the hated -tax-gatherer was thus kept outside the city gates. An aid was also more -to the king’s advantage than a tallage of equal amount. Not only was he -saved the trouble, expense, and delay of the collection, but he obviated -risk of loss through the insolvency of some of the individuals fixed -upon. - -A story told by Madox[469] brings out the contrast. A dispute had arisen -between the king and the Londoners. To Henry’s demand for 3000 marks of -“tallage” they at first replied by offering 2000 marks of “aid,” which -the king refused. The citizens then denied liability to tallage -altogether, but were confronted with entries in Exchequer and Chancery -Rolls which entirely contradicted their audacious contention. On the -morrow the mayor and citizens acknowledged that they were talliable, and -gave the king the sum he demanded. - ------ - -Footnote 469: - - I. 712, citing Mem. Roll 39 Henry III. - ------ - -(4) _Effects of the omission of the word “tallage” from Magna Carta._ As -the two words appearing in the Articles of the Barons had -well-recognized differences of meaning, it is unlikely that the omission -of one of them from the Charter was regarded as a purely verbal change. -John would readily enough dispense with the right to exact “aids” from -the wealthy traders of his capital, if he still preserved his privilege -of tallaging them at pleasure. The omission was perhaps deliberately -made in deference to John’s strong feeling on a point which did not -personally affect the barons.[470] Another omission should be noted. The -Articles had extended protection not only to Londoners, but also “to -citizens of other places who thence have their liberties,” meaning the -towns whose chartered privileges had been modelled on those of the -metropolis. Magna Carta completely ignored, in this connection, all -towns except London.[471] - ------ - -Footnote 470: - - Alternative explanations are possible, _e.g._ that the prelates, - accustomed to tallage their own dependants, used their influence - successfully to combat this innovation as “the thin end of the wedge.” - -Footnote 471: - - It might possibly be argued that the last clause of chapter 13 - extending to all towns a confirmation of liberties and customs, was - intended to embrace this provision as to aids. If so, the draftsman - has expressed himself clumsily. - ------ - -(5) _The nature of the protection afforded by Magna Carta._ The -arrangement of the present chapter is peculiar. After treating fully of -the abuses of Crown tenants, the case of the Londoners is thrown in -carelessly in a few words: “In like manner it shall be done concerning -aids from the citizens of London.” Various interpretations of the words -“_simili modo_” are possible. High authorities suggest that the clause -means no more than that aids taken from London, like ordinary aids taken -from Crown tenants, must be “reasonable.”[472] If this is so, a -criterion of reasonableness different from that applicable to knights’ -fees became necessary; and this would have been hard to find.[473] - ------ - -Footnote 472: - - Such is the opinion expressed in the _Lords’ Report on the Dignity of - a Peer_, I. 65. - -Footnote 473: - - In 1168, when Henry II. took an aid for the marriage of his daughter, - London contributed £617 16s. 8d., which might afford a precedent for a - “reasonable” aid. See _Pipe Roll_, 14 Henry II., cited Madox, I. 585. - ------ - -It is equally probable, however, that the intention was to render the -same consent necessary to the validity of aids, asked from London, as -had previously been stipulated in the case of scutages from tenants in -chief. If this is so, then the method provided in chapter 14 for taking -“the common counsel of the realm” was peculiarly ill-adapted to secure -to the men of London any effective voice in taxing themselves. The -necessity for the consent of an exclusively baronial assembly could not -adequately protect the Londoners, whose essentially different interests -were unrepresented. - -Subsequent history casts no light on the original intention of this -clause; no occasion of testing its meaning ever occurred, the entire -chapter of which it forms part having been omitted from all subsequent -issues of the Charter. - -(6) _Later history of the Crown’s right to tallage the towns._ Magna -Carta, even in its original form, did not deprive the king of his right -to tallage London, like any other part of his ancient demesne; and the -Crown continued quite legally and almost without question to exercise -this prerogative at intervals from 1215 until 1340. It has sometimes -been maintained, indeed, that the _Confirmatio Cartarum_ of 1297 was -intended to abolish this prerogative, and it is true, that a document -once considered as an authoritative version of the _Confirmatio_ bore -the suggestive title of _De tallagio non concedendo_. It is now well -known that the latter document is quite unauthentic; while, if the -_confirmatio_ itself was intended to relieve the towns from tallages -taken without their consent, it signally failed. Edward III. -occasionally exacted tallages from London and other towns. His -parliaments, however, sought to prohibit this, and succeeded, in 1340, -in passing a statute which abolished, in words peculiarly wide and -categorical, unparliamentary taxation of every kind whatsoever. This -act, which is sometimes styled by modern writers “the real _statutum de -tallagio non concedendo_,” is held by Dr. Stubbs to have conclusively -abolished _inter alia_ the Crown’s right of tallage.[474] This finally -settled the law, but did not prevent the king from trying to break that -law. In subsequent years Edward III. frequently disregarded the -restriction thus placed upon his financial resources, and with varying -success. He rarely did so, however, without meeting protests; and the -rule of law laid down in the act of 1340 was never repealed. - ------ - -Footnote 474: - - See _Const. Hist._, II. 548. “Of the scope of this enactment there can - be no doubt; it must have been intended to cover every species of tax - not authorised by parliament, and ... it seems to have had the effect - of abolishing the royal prerogative of tallaging demesne.” - ------ - -III. _Magna Carta and the Theory of Parliamentary Taxation._ It is a -commonplace of our text-books that chapters 12 and 14 taken together -amount to the Crown’s absolute surrender of all powers of arbitrary -taxation, and even that they enunciate a general doctrine of the -nation’s right to tax itself.[475] Yet the very idea of “taxation” in -its abstract form, as opposed to specific tolls and tallages levied on -definite things or individuals, is essentially modern. The doctrine of -the day was that the king in normal times ought “to live of his own,” -like any other land-owning gentleman. A regular scheme of “taxation” to -meet the ordinary expenses of government was undreamt of. It is too much -to suppose, then, that our ancestors in 1215 sought to abolish something -which, strictly speaking, did not exist. The famous clause treats, not -of “taxation” in the abstract, but of the scutages and aids already -discussed. It does not concern itself with the rights of Englishmen as -such, but chiefly with the interests of those who held freeholds of the -Crown, and incidentally and inadequately with those of the citizens of -London. Several considerations place this beyond reasonable doubt. - ------ - -Footnote 475: - - _E.g._ Taswell-Langmead, _Engl. Const. Hist._, 106, and Anson, _Law - and Custom of the Const._, I. 14. Dr. Stubbs, _Const. Hist._, I. 573, - considers that these words “admit the right of the nation to ordain - taxation.” - ------ - -(1) The terms of the restriction are by no means wide or sweeping; but -precise, accurate, and narrow. The “common consent of the realm” was -made a requisite for three species of exactions at the most: for -scutages and for extraordinary aids taken from the feudal tenants, and -possibly also for aids taken from the city of London: that is all. Not a -word is said of any other form of taxation or of other groups of -taxpayers. The restriction thus benefits Crown tenants only, with the -doubtful addition of the Londoners. (2) If under-tenants received by -chapter 15 some protection against their mesne lords, they received none -against the claims of the king. The Charter affected not national -“taxation,” but merely feudal dues. (3) The scant measure of protection -afforded did not extend even to all Crown tenants. The king’s villeins -were, of course, excluded; and so were even freeholders whose tenure was -other than that of chivalry. Socage tenants were left liable to carucage -and other exactions, tenants in frankalmoin (among them the wealthy -Cistercian monks) to forced contributions from the wool and hides of -their sheep, while the right of the Crown arbitrarily to raise the -“farms” of all parts of its own demesnes was deliberately reserved.[476] -(4) The Crown’s initiative in “taxation” (here restricted in regard to -“aids” and “scutages”) was, under many other names and forms, left -intact. The king required no consent before taking such prizes and -custom dues as he thought fit from merchandise reaching or leaving -England, or before taking tolls and fines at inland markets under the -plea of regulating trade. Tallages also were exigible at discretion from -aliens and Jews, from tenants of demesne, from London and other -chartered towns. (5) The limited scope of this restriction on -prerogative is further illustrated by the method provided for taking -“the common consent.” The assembly to be convened for that purpose was a -narrow body, representative neither of the several ranks and classes of -the community, nor of the separate national interests, nor yet of the -various districts of England. On the contrary, its composition was -extremely homogeneous, an aristocratic council of the military tenants -of the Crown, convened in such a way that only the greater among them -were likely to attend.[477] - ------ - -Footnote 476: - - See _infra_, under c. 25. - -Footnote 477: - - Even when an honour escheated to the Crown, the tenants of that honour - “were not suitors of the _Curia Regis_.” See _Report on Dignity of a - Peer_, I. 60. - ------ - -These facts serve as a warning not to read into Magna Carta modern -conceptions which its own words will not warrant. This famous clause was -far from formulating any national doctrine of self-taxation; it was -primarily intended to protect Crown tenants from impositions levied by -John, not _qua_ sovereign but _qua_ feudal lord. Such as it was, it was -totally omitted, along with its corollary (chapter 14), in 1216. The -provision substituted for both, in the Charter of 1217, referred only to -scutages, saying nothing about aids, and cannot possibly be read as a -general prohibition of all arbitrary taxation by the Crown.[478] - ------ - -Footnote 478: - - Cf. _supra_, pp. 173-4 and _infra_, under c. 14. - ------ - - - - - CHAPTER THIRTEEN. - -Et civitas Londonie habeat omnes antiquas libertates et liberas -consuetudines suas, tam per terras, quam per aquas. Preterea volumus et -concedimus quod omnes alie civitates, et burgi, et ville, et portus, -habeant omnes libertates et liberas consuetudines suas. - - And the citizens of London shall have all their ancient liberties and - free customs, as well by land as by water; furthermore, we decree and - grant that all other cities, boroughs, towns, and ports shall have all - their liberties and free customs. - - -A full list of the liberties and customs of London would be a long one; -and an account of how each of these grew up and was confirmed by the -Crown need not be given here. The most cherished of the privileges -enjoyed in John’s day were the right to appoint a civic chief, who bore -the name of mayor, and the right to choose sheriffs of their own who -should collect the city’s _firma_[479] (or annual rent payable to the -exchequer), so as to obviate the intrusion of royal bailiffs. Only a -brief account of the way in which the metropolis obtained these two -privileges need be here attempted. - ------ - -Footnote 479: - - _Firma_ is explained _infra_, c. 25. - ------ - -The chief feature of London before the Norman Conquest seems to have -been lack of proper municipal organisation. Dr. Stubbs describes the -capital during the eleventh century as “a bundle of communities, -townships, parishes, and lordships, of which each has its own -constitution.”[480] It was thus a collection of small administrative -units, rather than one large unit. Some semblance of legal unity was, it -is true, afforded by the folkmoot, in which the citizens regularly -assembled; by its smaller council known as “husteng”; and perhaps also -by its “cnihtengild” (if, indeed, this third body be not entirely -mythical); while the existence of a “portreeve” shows that for some -financial purposes also the city was treated as one whole. London, -however, prior to the reign of Henry I. was far from possessing -machinery adequate to the duties of a local government for the whole -community. - ------ - -Footnote 480: - - Stubbs, _Const. Hist._, I. 439. Cf. Round, _Commune of London_, 220, - who is in substantial agreement. Miss Mary Bateson, however, thinks - that “there has been a tendency unduly to minimise the measure of - administrative unity in the twelfth-century shire of London.” See the - evidence produced by her, _Engl. Hist. Rev._, XVII. 480-510. - ------ - -The first step towards acquiring a municipal constitution is generally -supposed to have been taken by the citizens when they obtained a charter -from Henry I. in the last years of his reign (1130-35). This is not -strictly accurate. London, indeed, by that grant gained certain valuable -privileges and enjoyed them for a short time, but it did not obtain a -constitution. The chief rights actually conferred by Henry were as -follows:—(1) The _firma_ was fixed at the reduced rate of £300 per -annum, the citizens obtaining for this payment a lease in perpetuity of -their own city with the surrounding county of Middlesex—the grant being -made to the citizens and their heirs; (2) they acquired the right to -appoint whom they pleased as sheriffs of London and Middlesex, implying -the exclusion of the king’s tax-collectors by men of their own choosing; -(3) a similar right of appointing their own nominee as justiciar was -also conferred on them, to the exclusion apparently of the royal -justices of eyre. Many minor privileges were confirmed which need not -here be specified. Mr. J. H. Round[481] argues with convincing force -that these concessions, important as they were, did not confer a civic -constitution upon London. Henry’s charter, in his opinion, confirmed all -the already existing separate jurisdictions and franchises, perpetuating -the old state of disunion, rather than creating a new principle of -cohesion. He proves, further, that these benefits continued in force -only for a few years after Stephen’s accession. That king was coerced by -the Earl of Essex into infringing the citizens’ chartered rights; and -London did not regain the ground thus lost until the reign of Richard I. - ------ - -Footnote 481: - - _Geoffrey de Mandeville_, 356. - ------ - -Henry II., indeed, granted a charter to the citizens in 1155, which is -usually interpreted as a full confirmation of all the concessions of the -earlier Henry.[482] Mr. Round has conclusively proved the error of this -opinion.[483] The charter of 1155 restricted, rather than enlarged, the -privileges of London, being couched in cautious and somewhat grudging -terms. The main concessions of the earlier charter were completely -omitted: the citizens no longer elected their own sheriffs or their own -justiciar; the reduction of the _firma_ to £300 was not confirmed; and -subsequent pipe rolls show that Henry doubled that amount, although the -Londoners protested, arguing for the lower rate. - ------ - -Footnote 482: - - See _e.g._ Miss Norgate, _Angevin Kings_, II. 471. - -Footnote 483: - - _Geoffrey_, 367. - ------ - -The next crisis came early in Richard’s reign. Then it was that London -first obtained its municipal constitution. Then also it regained and -secured on a permanent basis the privileges precariously held for a few -years under Henry I. and Stephen. The form in which the constitution -came at last was borrowed from France, and was neither more nor less -than the _Commune_, so well known on the Continent in the twelfth and -thirteenth centuries. The commune of London was possibly modelled upon -the commune of Rouen; the chief cities of England and Normandy -respectively must have had intimate relations. Mr. Round[484] has shown -that these concessions were not, as has sometimes been supposed, -voluntarily granted in 1189 by Richard I., but were extorted from his -younger brother John, when that ambitious prince was bidding high for -powerful allies to support his claim to act as Regent. London really got -its first constitution on 8th October, 1191, under picturesque and -memorable circumstances. While Richard tarried in the Holy Land, a -scramble took place at home for the right to represent him. The -Chancellor Longchamp had been appointed Regent; but John, wily and -unscrupulous, successfully ousted him, with the help of the men of -London. At the critical moment the metropolis had offered its support on -conditions, which included the restoration of all the short-lived -privileges conferred by the charter of Henry I., and, in addition, a -municipal constitution of its own in the form of a commune of the -continental type. - ------ - -Footnote 484: - - _Commune of London_, 222. - ------ - -Mr. Round, in a notable passage, describes the scene. "When, in the -crisis of October, 1191, the administration found itself paralysed by -the conflict between John, as the king’s brother, and Longchamp, as the -king’s representative, London, finding that she held the scales, -promptly named the 'Commune’ as the price of her support. The chronicles -of the day enable us to picture to ourselves the scene, as the excited -citizens, who had poured forth overnight, with lanterns and torches to -welcome John to the capital, streamed together on the morning of the -eventful 8th October at the well-known sound of the great bell, swinging -out from its campanile in St. Paul’s Churchyard. There they heard John -take the oath to the ‘Commune,’ like a French king or lord; and then -London, for the first time, had a municipality of her own."[485] - ------ - -Footnote 485: - - _Commune of London_, 224. - ------ - -For any accurate definition of a commune we look in vain to contemporary -writers, who are usually carried away by their political bias. Richard -of Devizes[486] quotes with approval, “_Communia est tumor plebis, timor -regni, tepor sacerdotii_.” Some insight has been gained in recent years, -however, into its exact nature. A Commune was a town which had obtained -recognition as a corporate entity, as a link in the feudal chain, -becoming the free vassal of the king or other lord, and itself capable -of having sub-vassals of its own.[487] Its chief institutions were a -mayor and an elective council, generally composed of twenty-four -members, some or all of whom were known as _échevins_ or _skivini_, a -word which in its modern form of “scavengers” has fallen on evil days, -no longer denoting the city fathers, but men who perform civic duties of -a useful but less dignified nature. Perhaps the chief peculiarity of the -commune was the method of its formation, namely, by popular association -or conspiracy, involving the taking of an oath of a more or less -revolutionary nature by the citizens and its subsequent ratification by -those in authority. It is generally admitted that these communes, though -revolutionary in their origin, were not necessarily democratic in their -sympathies. Under the new constitution of London, the grievous taxation -of Richard’s reign was made to fall more heavily on the poor of London -than on any other class. The commune thus set up in 1191, tolerated at -first rather than encouraged by the Crown, formed thenceforth the -municipal government of the capital; the citizens chose not only their -own sheriffs, but also their own mayor, although the latter, when once -appointed, held office for life. - ------ - -Footnote 486: - - _Select Charters_, p. 252. - -Footnote 487: - - M. Luchaire, _Communes Françaises_, p. 97, defines it as “_seigneurie - collective populaire_.” - ------ - -When John became king, he granted three charters, ratifying the -privileges of the capital in return for a _gersuma_ (or slump payment) -of 3000 marks.[488] All the franchises specified in the old charter of -Henry I. were now confirmed, with one exception: the liberty to appoint -a justiciar of their own, now seen to be inconsistent with the Crown’s -centralizing policy, was abandoned. None of these charters made mention -of mayor or commune, but they confirmed some minor privileges gained in -Richard’s reign.[489] - ------ - -Footnote 488: - - Miss Bateson, _Engl. Hist. Rev._, XVII. 508. - -Footnote 489: - - _E.g._ the removal of obstacles to free navigation in Thames and - Medway. Cf. _infra_, c. 33. - -A fourth charter, dated 20th March, 1201, was merely of temporary -interest; but a fifth, granted on 9th May, 1215, little more than a -month previous to Magna Carta, is of great importance, and represents -the bait thrown by John to the citizens in the hope of gaining their -support in this new crisis, as he had previously gained it in the crisis -of 1191. The fifth charter not merely confirmed to the citizens in -explicit terms the right already enjoyed by them of electing a mayor for -life, but allowed them to elect a new one every year. Miss Norgate does -not exaggerate, when she describes this concession as “the crowning -privilege of a fully constituted municipality, the right to elect their -own mayor every year.”[490] An annually elected magistrate would, -undoubtedly, feel his dependence on the citizens more than one holding -office for life; but it seems probable that the chief value of the grant -lay in its confirmation by John as king, of the rights conceded by him -fourteen years earlier as his brother’s unauthorised representative, and -enjoyed meanwhile on an insecure tenure. The charter of May, 1215, by -officially recognizing the mayor, placed the commune over which he -presided on a legal footing. The revolutionary civic constitution, sworn -to in 1191 was now confirmed. The citizens acted on the permission -granted them of annually changing their chief magistrate: but in place -of supporting the king who made the grant, they opened their gates to -his enemies.[491] - ------ - -Footnote 490: - - _John Lackland_, 228. - -Footnote 491: - - From this date the list of mayors shows frequent, sometimes annual, - changes. Thus Serlo the mercer was Mayor in May, 1215, when London - opened its gates to the insurgents, while William Hardell had - succeeded him before 2nd June, 1216, when he headed the citizens who - welcomed Louis to make London his headquarters. - ------ - -Such then was the London whose privileges were confirmed by Magna -Carta—a city which had slowly grown to greatness, obtaining after many -struggles a complete municipal constitution in the form of a commune -with annually elected mayor and council, as well as sheriffs of its own -appointment, who excluded the Crown’s financial officers not only from -the district within its walls but from the whole of Middlesex. The Great -Charter, avoiding details, confined itself to a general confirmation to -the men of London of their ancient “liberties and free customs,” two -words[492] whose vagueness ought in this connection to receive a liberal -interpretation.[493] - ------ - -Footnote 492: - - Both words are discussed _infra_, c. 39. - -Footnote 493: - - The Charter mentions neither mayor nor commune, but probably by - implication confirmed both. Prof. G. B. Adams finds such confirmation, - not in c. 13, but in c. 12 (by its application of the word _auxilium_ - to London); and maintains that with the omission of this word from - subsequent charters "London’s legal right to a commune fell to the - ground." _Engl. Hist. Rev._, XIX. 706. - ------ - -London, in this respect, was not to stand alone; a similar concession -was explicitly made in favour of all other cities, boroughs, towns, and -sea-ports. This was a mere confirmation, however, not to be read as -conferring new privileges or exemptions, each borough being left to -prove its own customs as best it might. In the reissues of Henry, the -distinction of being mentioned by name was shared by these “barons of -London,” with “the barons of the Cinque ports,” who from their wealth, -their situation, and their fleet, were allies well worth conciliating. -They played, indeed, a prominent part in the decisive naval victory -gained by Hubert de Burgh on 24th August, 1217.[494] - ------ - -Footnote 494: - - See _supra_, p. 170. - ------ - -Other portions of John’s Great Charter which specially affected the -Londoners were the last clause of chapter 12, and chapters 33 and 41; -while many of the privileges granted or confirmed in other chapters were -shared by them. The Mayor of London, it should be added, was one of the -executive committee of twenty-five, entrusted with wide powers to -enforce the provisions of the Charter.[495] - ------ - -Footnote 495: - - See _infra_, c. 61. - ------ - -Among the most cherished privileges claimed by the chartered boroughs -were the rights to exact tolls and to place oppressive restrictions upon -all rival traders not members of their guilds, foreigners and denizens -alike. The confirmation of these privileges in this chapter has been -held to contradict chapter 41, which grants protection and immunities to -foreign merchants.[496] The inconsistency, however, should not be pushed -too far, since the later chapter aimed at the abolition of “evil -customs” inflicted by the king, not of those inflicted by the boroughs. -At the same time, all favour shown to aliens would be bitterly resented -by their rivals, the English traders. If the charter had been put in -force in its integrity, the more specific privileges in favour of -foreign merchants would have prevailed in opposition to the vague -confirmation of borough “liberties” wherever the two came into -collision.[497] - ------ - -Footnote 496: - - Cf. Pollock and Maitland, I. 447-8. - -Footnote 497: - - Cf. _infra_, c. 41. - ------ - - - - - CHAPTER FOURTEEN. - -Et ad habendum commune consilium regni, de auxilio assidendo aliter quam -in tribus casibus predictis, vel de scutagio assidendo, summoneri -faciemus archiepiscopos, episcopos, abbates, comites, et majores -barones, sigillatim per litteras nostras; et preterea faciemus summoneri -in generali, per vicecomites et ballivos nostros, omnes illos qui de -nobis tenent in capite; ad certum diem, scilicet ad terminum quadraginta -dierum ad minus, et ad certum locum; et in omnibus litteris illius -summonicionis causam summonicionis exprimemus; et sic facta summonicione -negocium ad diem assignatum procedat secundum consilium illorum qui -presentes fuerint, quamvis non omnes summoniti venerint. - - And for obtaining the common counsel of the kingdom anent the - assessing of an aid (except in the three cases aforesaid) or of a - scutage, we will cause to be summoned the archbishops, bishops, - abbots, earls, and greater barons, by our letters under seal; and we - will moreover cause to be summoned generally, through our sheriffs and - bailiffs, all others who hold of us in chief, for a fixed date, - namely, after the expiry of at least forty days, and at a fixed place; - and in all letters of such summons we will specify the reason of the - summons. And when the summons has thus been made, the business shall - proceed on the day appointed, according to the counsel of such as are - present, although not all who were summoned have come. - - -This chapter, which has no equivalent among the Articles of the Barons, -appears here incidentally: it would never have found a place in Magna -Carta but for the need of suitable machinery to give effect to the -provision of chapter 12.[498] - ------ - -Footnote 498: - - On the whole subject of the _commune concilium_, cf. _supra_ 151-4 and - also 173-4. - ------ - -As the earlier clause is frequently supposed to contain a general -doctrine of _taxation_, so this one is often cited as enunciating a -general doctrine of _parliamentary representation_; while the close -connection between the two chapters is taken to indicate an equally -close connection between the two conceptions supposed to underlie them, -and is urged as evidence that the framers of Magna Carta had grasped the -essentially modern principle that taxation and representation go -together.[499] In this view, the barons at Runnymede deserve credit for -anticipating some of the best features of the modern system of -parliamentary government. The words of the text, however, will scarcely -bear so liberal an interpretation. Vital points of difference between -the principles of Magna Carta and the modern doctrine of representation -are revealed by a careful analysis. - ------ - -Footnote 499: - - _E.g._ Sir William R. Anson, _Law and Custom of the Constitution_, I. - 14, emphatically declares that one of the two cardinal principles of - the entire Charter is “that representation is a condition precedent to - taxation.” - ------ - -Under chapter 12 scutages and extraordinary aids could only be levied -“with common counsel of our kingdom,” and now chapter 14, by formulating -rules for convening the individuals whose consent was thus required, -fixes authoritatively the composition of an assembly definitely charged -with this specific function. The same Latin words which signify joint -“consent” or counsel thus came to signify also a special institution, -namely, that “Common Council” afterwards of such vital constitutional -importance, continuing under a new name the old _curia regis_ in several -of its most important aspects, and passing in turn into the modern -Parliament. The duties and constitutional importance of this _commune -concilium_ may be considered under six heads. - -I. _Nature of the Summons._ Formal writs had to be issued when the -attendance of the members was required. These writs must specify the -time, place, and reason of assembling, giving formal notice at least -forty days in advance. In these respects the writs issued were all to be -the same; but in one vital particular a distinction was recognized. Each -of the really powerful men of the realm—archbishops, bishops, abbots, -earls, and "other greater barons"—must receive a separate writ, under -the royal seal, addressed to him individually and directly, while the -“smaller barons” were to be summoned collectively and indirectly through -the sheriffs and bailiffs of each district. - -II. _Composition of the Council._ It is clear that the meetings -contemplated were purely baronial assemblies since none but Crown -tenants were invited to attend; while individual notice under the king’s -seal was given only to the more important magnates among them. The -Common Council of the Charter was thus an assembly of military Crown -tenants, and “the common consent of my kingdom” in John’s mouth was -synonymous with “the consent of my barons.”[500] - ------ - -Footnote 500: - - This is illustrated by a comparison of the words used in the text with - the phrases in which Henry and his sons expressed “the common consent” - to important ordinances and charters: _e.g._ (_a_) the Assize of - Clarendon in 1166 (_Select Charters_, 143) bears to have been ordained - by Henry II. “_de consilio omnium baronum suorum_”; (_b_) John’s - Charter surrendering his kingdom to Innocent in 1213 declares that he - acted “_communi consilio baronum nostrorum_” (_Select Charters_, 285); - (_c_) Matthew Paris makes Earl Richard complain to his brother Henry - III. in 1255 that the Apulian business had been entered on “_sine - consilio suo et assensu barnagii_” (_Chron. Maj._ V. 520). - ------ - -The king’s Council had by this time freed itself from any complicated -theories as to its own composition, which may ever have hampered it. It -was now extremely homogeneous; a feudal muster of Crown vassals. Some -historians, indeed, in their anxiety to find distinguished pedigrees for -their democratic ideals, have traced the origins of the leading features -of the modern Parliament back to the Anglo-Saxon era; but such attempts -are hurtful to the best interests of history, while they do not in the -least advance the cause of popular liberties. - -It is unnecessary here to examine the various rival theories professing -to explain the composition of the Anglo-Saxon Witenagemot, or to discuss -the exact connection between that venerable institution and the _Curia -Regis_ of the Norman kings. As a matter of fact, the early constitution -of the court of the Conqueror or of Rufus seems to have been monarchic -rather than aristocratic or democratic; that is to say, it depended to a -great extent on the personal will of the king, who might issue or -withhold writs of summons very much as he pleased. No evidence exists, -of date anterior to the Great Charter, of any magnate thrusting himself -unbidden into a royal council or forcing the king to issue a formal -invitation. On one occasion, indeed, the action of Henry II. in omitting -to issue a writ laid him open to unfavourable criticism. This was in -October, 1164, when a special council was summoned to Northampton to -pass judgment upon various questions at issue between the king and -Thomas à Becket. The primate was ordered to appear for judgment, but the -formal writ of summons, which every archbishop, as holder of a barony, -was wont to receive as matter of course, was deliberately withheld. -Apparently contemporary opinion condemned this omission.[501] It is safe -to infer, then, that as early as 1164, the method of issuing these writs -had become uniform, but this constitutional understanding was not -reduced to writing until embodied in Magna Carta. Thus it was in 1215 -that the magnates of England formulated for the first time a distinct -claim to be present at the king’s councils; and even then the demand -only referred to assemblies summoned for one specific purpose. -Previously, attendance was reckoned not as a privilege, but merely as an -expensive burden, incident, like so many other burdens, to the -possession of land.[502] - ------ - -Footnote 501: - - See Ramsay, _Angevin Empire_, p. 54, and authorities there cited. - -Footnote 502: - - See L. O. Pike, _House of Lords_, 92, "There is no trace of any desire - on the part of the barons to be summoned to the king’s great Council - as a privilege and an honour before the reign of John." Cf. also - _Report on the Dignity of a Peer_, I. 389. - ------ - -III. _Position of the “Minor Barons.”_ In recognizing a distinction -between two classes of Crown tenants, the Great Charter merely gave the -weight of its authority to existing usage, as that had taken shape in -the reign of Henry II. Crown tenants varied in power and position in -proportion to the extent of their lands, from the great earl who owned -the larger share of one or more counties, down to the small free-holder -with only a few hides, or it might be acres, of land. A rough division -was drawn somewhere in the midst; but the exact boundary was necessarily -vague, and this vagueness was probably encouraged by the Crown, whose -requirements might vary from time to time.[503] Those Crown tenants on -one side of this fluctuating line were known as _barones majores_, those -on the other as _barones minores_. The distinction had been recognized -as early as the days of Henry II.;[504] but Magna Carta helped to -stereotype it, and contributed to the growing tendency to confine the -word “baron” to the greater men.[505] It is unlikely that any “minor -baron” who obeyed the general summons would enjoy equal authority with -the magnates invited individually by writ; and it is difficult to say -even whether he was sure of a welcome, and, if so, in what capacity. -Three distinct theories at least have been advanced as to the position -occupied by the “minor barons” in the Common Council. (1) The duty of -attendance, burdensome to all, was specially burdensome to the poorer -Crown tenants. It has accordingly been suggested that the device of -inviting them by general summons was intended as an intimation that they -need not come. This is the view taken by Prof. Medley.[506] - ------ - -Footnote 503: - - See Prof. Medley, _Engl. Const. Hist._, 123. - -Footnote 504: - - See _Dialogus de Scaccario_, II. x. D., “_baronias scilicet majores - seu minores_.” - -Footnote 505: - - Cf. _supra_, c. 2. - -Footnote 506: - - _Engl. Const. Hist._, 123. “The smaller tenants-in-chief would - thankfully regard the general summons as an intimation to stay away.” - ------ - -(2) Dr. Hannis Taylor holds an exactly opposite opinion, reading this -chapter as the outcome of a desire to ensure the fuller attendance of -the smaller men—as an attempt “to rouse the lesser baronage to the -exercise of rights which had practically passed into desuetude.”[507] -Each of the _barones minores_ was thus encouraged to attend for himself -and his own interests. If such an attempt had really been made, and had -succeeded in compelling the attendance of a large proportion of those -who previously had almost made good their right to shirk the burden, the -result would have been to leave no room whatever for the future -introduction of the representative principle into the national council. - ------ - -Footnote 507: - - _Engl. Const._, I. 466. - ------ - -(3) A third theory, while agreeing that those summoned by general writ -were intended to obey the summons, thinks that the smaller Crown tenants -were called not exclusively each man for himself, but in a -representative capacity. It is thus suggested that a few knights -(probably elected for this purpose by their fellows) were expected to -attend to represent the others. Dr. Stubbs seems predisposed towards -this opinion, although he expresses himself with his usual caution.[508] - ------ - -Footnote 508: - - See _Const. Hist._, I. 666. “Whether or no the fourteenth article of - the Great Charter intended to provide for a representation of the - minor tenants-in-chief by a body of knights elected in the county - court,” etc. - ------ - -The reasons for rejecting this third theory will be more conveniently -discussed in connection with the doctrine of representation. It is -perhaps unnecessary to decide between the two others; but it may be -suggested, even at the risk of seeming to invent a fourth theory in a -series already too numerous, that to the great men who framed the clause -it must have been a matter of supreme indifference whether their humbler -fellow-tenants attended or stayed away. The general summons expressed -neither an urgent desire for their presence, nor yet an intimation that -they were not wanted; but merely conformed with the established usage, -and left with each “minor baron” the decision whether he should come or -stay away. His presence would make little difference upon the -deliberations of the magnates. - -IV. _Representation._ It is well to hesitate before applying to ancient -institutions a word so essentially modern as “representation.” In a -sense the reeve and the four best men of every village “represented” -their fellows in the county court from a very early age; and in a -somewhat different sense the feudal lord “represented” his free tenants -and villeins in the king’s court, but in neither instance was there -anything approaching the very definite relation which exists at the -present day between the elected member of Parliament and the -constituents he “represents.” It is true that the difference may in some -respects be one of degree rather than of kind, and it is further true -that two years before the date of Magna Carta a tentative experiment had -been tried in the direction of introducing representatives of the -counties into the king’s Council, thus taking the first step in a long -process destined ultimately to lead without any absolute breach of -continuity to the modern Parliament. But the Barons in June, 1215, -showed no desire to follow the example set by John in November, 1213. -The terms in which Magna Carta directs that all minor barons should be -summoned are explicit, and may be profitably contrasted with the words -used in the writ dated 7th November, 1213, addressed to the sheriff of -Oxford, ordering him to compel, in addition to the barons and the -knights already summoned (presumably _barones minores_), the attendance -of _quatuor discretos homines de comitatu tuo_ (presumably other than -Crown tenants).[509] - ------ - -Footnote 509: - - Cf. _supra_, p. 36. The writ appears in _Rot. Claus_, I. 165, and also - in _Sel. Charters_, 287. Cf. _New Rymer_, I. 117. - ------ - -So far from the words of Magna Carta showing any desire to confirm this -precedent, they show a deliberate intention to ignore it, and to fall -back on the more ancient practice. The members of the assembly which -Magna Carta stipulated should be convened for the taking of “the common -consent” were all of one type, drawn from the same section of the -land-owning aristocracy, namely, military tenants-in-chief of the Crown. -The barons, great and small, might be present, each man for himself; but -the other tax-paying classes were completely ignored.[510] They were -neither present nor yet represented. The barons in this, as in other -matters, stood out for the old feudal order under which they had -preserved a wide measure of independence from the Crown’s control; -whereas King John for selfish reasons adopted the more enlightened -policy of his father, and even, unconsciously it may be, anticipated -some of the measures of his grandson, Edward Plantagenet. In brief, John -was progressive, while his opponents were conservative. The present -chapter must be added to the not inconsiderable list of those which -attempted to bring about a feudal reaction.[511] - ------ - -Footnote 510: - - Cf. _supra_, c. 12. - -Footnote 511: - - Cf. Anson, _Law and Custom_, I. 44. “The provisions of 1215 described - an assembly of a type which was already passing away.” Cf. what is - said of reactionary tendencies in connection with cc. 37 and 39. - ------ - -V. _Powers and Functions of the Council._ It was not until long after -the days of Magna Carta that Parliament secured the most important of -those functions now deemed essential to its existence. No claim was made -by the Great Charter on behalf of the _commune concilium_ to any right -to be consulted in the making of laws or in the performance of -administrative or judicial duties by the Crown. No effort was made -towards formulating any doctrine of ministerial responsibility. This -assembly, narrow and aristocratic in its composition, had only one right -secured to it by Magna Carta—namely, a limited control over one form of -taxation. Even here, as we have seen, no general or sweeping claim was -put forward on its behalf. It had no right to a control of the national -purse: the barons confined themselves to a selfish assertion of a right -to protect their own individual pockets against an increase of feudal -burdens. A modern Magna Carta would have contained a careful list of the -powers and privileges of “the common council of the realm,” and would -have given to this list a conspicuous place of honour.[512] - ------ - -Footnote 512: - - Cf. _Report on Dignity of a Peer_, I. 63, where it is mentioned as - “remarkable that no one article in the Charter has reference to the - previous existence of any assembly convened for general purposes of - legislation; nor does the charter contain any provision for the - calling of any such assembly in the future, or any provision - purporting the existence by law of any representative system for the - purpose of general legislation.” - ------ - -VI. _Rights of Majorities and Minorities._ The medieval conception of -constitutional solidarity was defective; the king’s council acted too -much like a fortuitous gathering of unrelated individuals, and too -little like a recognized organ of the body politic. Each “baron” was -summoned on his own behalf, and in order that he might give his -individual consent to a proposed levy; while it is doubtful how far a -dissenting minority could be bound by a decision of the rest. -Accordingly, the framers of Magna Carta deemed it necessary to assert -what would be too obvious to modern politicians to require -assertion—namely, that when the _commune concilium_ had been properly -convened, its power to transact business should not be interfered with -because a section of those summoned chose to stay away. “The business -shall proceed on the day appointed, according to the advice of such as -shall be present, although all that were summoned do not come.” Not all -business was competent, however, for the cause of summons had to be -mentioned in the writs. If these writs were in order, the Council, so we -may presume, had power to impose aids or scutages on those who were -absent.[513] - ------ - -Footnote 513: - - Cf. Stubbs, _Const. Hist._, I. 607: “Absence, like silence, on such - occasions implies consent.” - ------ - -Nothing is said, however, as to the validity of a protest made by those -who came and expressed disapproval of what the majority agreed to. As -the substance of this chapter was observed in practice (though omitted -from subsequent confirmations), a precedent of the year 1221 may perhaps -be cited to illustrate the interpretation put upon it by contemporary -practice. A Council summoned by William Marshal, as Regent of Henry -III., had consented to a levy of scutage, and the bishop of Winchester -was assessed at 159 marks as the amount due for his knight’s fees. He -refused to pay, on the ground, quite untenable by modern standards, that -he had all along dissented from the grant. The fact of his protest was -vouched by Hubert de Burgh and others who had been present at the -Council. The plea was actually accepted by the Regent, and the exchequer -adjudged bishop Peter to be quit of the payment.[514] The incident shows -how far the statesmen of the day were from realizing the most elementary -principles of political theory. They had not yet grasped the conception -of a Council endowed with constitutional authority to impose its will on -a dissenting minority. Here it was apparently a minority of one. - ------ - -Footnote 514: - - See _Pipe Roll_ of 5 Henry III., cited Madox, I. 675. - ------ - -The barons by consenting in 1217 to accept a return to the fixed rates -of scutage customary in the reign of Henry II., deliberately sacrificed -such right of control over the finances of the nation as they may have -obtained in 1215. At no time, indeed, did they show any appreciation of -the vital nature of the constitutional issues at stake. The importance -of the common council, and the necessity of defining its composition, -functions, and privileges, lay entirely beyond their narrow sphere of -vision. - -It should be remembered, however, that the substance of this chapter of -John’s charter (although discarded in subsequent reissues) was virtually -observed in practice by the Crown, and treated as in force by the -barons. From this time forward the Common Council was almost invariably -consulted before the Crown attempted to levy such contributions; and -sometimes was bold enough to make conditions or to decline payment -altogether, the first instance on record of an outright refusal taking -place in a Parliament held at London in January, 1242.[515] - ------ - -Footnote 515: - - See Prothero, _Simon de Montfort_, 67, and authorities there - mentioned. - ------ - -The barons, in October, 1255, if Matthew Paris has not fallen into -error, considered that the provisions of chapters 12 and 14 of John’s -Magna Carta were still in force, although they had been omitted in the -reissues of Henry III. When the king asked a liberal aid in furtherance -of his scheme for securing the crown of Sicily for his son Edmund, those -present at the Council deliberately refused, on the ground that some of -their peers had not been summoned “according to the tenor of Magna -Carta.” This incident illustrates the extreme constitutional importance -rightly attached by the barons to the rigid observance by the Crown of -the established usage relative to the convening of Parliament.[516] - ------ - -Footnote 516: - - See M. Paris, _Chron. Maj._, V. 520. His words are: “_Et responsum - fuit quod omnes tunc temporis non fuerunt juxta tenorem magnae cartae - suae vocati, et ideo sine paribus suis tunc absentibus nullum - voluerunt tunc responsum dare_.” Matthew, however, probably improved - his story in the telling, adding local colour from the only version of - the charter known to him—namely, that spurious copy he had - incorporated in his own history. He clearly knew nothing of the - essential differences between the charters of John and of Henry. The - barons in 1255 may, or may not, have been equally ignorant. - ------ - - - - - CHAPTER FIFTEEN. - -Nos non concedemus de cetero alicui quod capiat auxilium de liberis -hominibus suis, nisi ad corpus suum redimendum, et ad faciendum -primogenitum filium suum militem, et ad primogenitam filiam suam semel -maritandam, et ad hec non fiat nisi racionabile auxilium. - - We will not for the future grant to any one licence to take an aid - from his own free tenants, except to ransom his body, to make his - eldest son a knight, and once to marry his eldest daughter; and on - each of these occasions there shall be levied only a reasonable aid. - - -This chapter confers on the tenants of mesne lords protection similar to -that already conferred on Crown tenants: sums of money are no longer to -be extorted from them arbitrarily by their lords.[517] Different -machinery, however, had here to be adopted, since the expedient relied -on in chapter 12 (“the common consent of the realm”) was clearly -inapplicable. - ------ - -Footnote 517: - - The chapter is, therefore, on the one hand a necessary supplement of - cc. 12 and 14, while on the other it is merely a particular - application of the general principle enunciated in c. 60, which - extended to sub-tenants all the benefits secured to Crown tenants by - previous chapters. - ------ - -I. _Points of difference between tenants-in-chief and under-tenants._ -Tenants of mesne lords were in some respects better off than tenants of -the king,[518] but in others their position was distinctly worse. Not -only had they to satisfy the demands of their own lord for “aids,” but -they generally found that part of every burden laid by the king upon -that lord’s shoulders was transferred to theirs. In seeking to provide -for under-tenants the protection of which they stood so much in need -Magna Carta looked, not to the common council, but to the king. No mesne -lord was to be allowed to compel his tenants to contribute to his -necessities without obtaining a written licence from the Crown; and -stringent rules forbade the issue of such licences except upon the usual -three occasions. Contrast this procedure with that which affected Crown -tenants. - ------ - -Footnote 518: - - The exemptions enjoyed by them are explained under c. 43. - ------ - -(1) While chapter 12 had spoken of “aids and scutages,” this one speaks -of “aids” alone. The omission can be readily explained: a mesne lord in -England had no right of private war, and was, as a logical consequence, -debarred from demanding scutage upon his own initiative. He might, -indeed, allocate upon his freeholders part of any scutage which the -Crown had taken from him; but the great barons who framed the Charter -had no intention to renounce so just a right. The restriction of this -clause to “aids” was thus intentional. - -(2) It would have been absurd to require “the common counsel of the -realm” to every aid paid by the freeholders of a manor. The embryo -Parliament had no time for petty local affairs; and the present chapter -makes no such suggestion. Some substitute had, however, to be found. A -natural expedient would have been to compel the mesne lord who wished an -aid to take “the common consent” of the freeholders of his manor, -assembled for that purpose in their court baron, as in a local -parliament. This course was sometimes followed. Henry Tracey, for -example, in 1235 (although armed with a royal writ), convened his -Devonshire knights and obtained their collective consent to an aid of -20s. per fee on the occasion of his daughter’s marriage.[519] No such -obligation, however, had been placed upon mesne lords by Magna Carta, -which had sought a practical substitute for “the common consent of the -realm” in quite a different direction, as will be explained immediately. - ------ - -Footnote 519: - - See Bracton’s _Notebook_, case 1146, cited by Pollock and Maitland, I. - 331. - ------ - -(3) A check upon such exactions was sought, not in any action by the -court baron, but in the mesne lord’s need for a royal licence. The -necessity for this may at first have been a practical, rather than a -legal, one; for executive power lay with the officers of the Crown -alone, and the sheriff gave his services only at the king’s -command.[520] The Crown thus exercised what was virtually a power of -veto over all aids taken by mesne lords. Such a right, conscientiously -used, would have placed an effectual restraint on their rapacity. John, -however, employed it solely for his own advantage, selling writs to -every needy lord who proposed to enrich himself (and, incidentally, the -Crown also) at his tenants’ expense. - ------ - -Footnote 520: - - In theory, in Henry II.’s reign at least, a royal writ was _not_ - required in the normal case. See _Dialogus_, II. viii., and the - editors’ comment (p. 191): “Normally the levying of money under any - pretext from a land-owner gave him a right to make a similar levy on - his under-tenants.” As regards _scutage_, a distinction was - recognized. The lord who actually paid scutage might collect it from - his sub-tenants without a licence; but, if he served in person, he - could recover none of his expenses except by royal writ. See _Ibid._, - and cf. Madox, I. 675. It is necessary, however, to avoid confusion - between two types of writ, (_a_) that which merely authorized - contributions, _e.g._, _de scutagio habendo_; (_b_) that which - commanded the sheriff to give his active help. - ------ - -Magna Carta forbade the two tyrants thus to combine against the -sub-tenants, enunciating a hard-and-fast rule which, if duly observed, -would have struck at the root of the grievance. The whole subject of -aids was removed from the region of royal caprice into the region of -settled law. No writ could be lawfully issued except on the three -well-known occasions. - -II. _The Influence of Magna Carta upon later Practice._ This chapter, -along with chapters 12 and 14, was discarded by Henry III.; and little -difference, if any, can be traced between the practices that prevailed -before and after 1215. Only in one particular were the requirements of -John’s Magna Carta observed, namely, as regards the need for obtaining a -royal licence. Mesne lords after this date, whatever may have been their -reason, invariably asked the Crown’s help to collect their aids. They -could not legally distrain their freeholders, except through the -sheriff, and this was, in part at least, a result of Magna Carta.[521] - ------ - -Footnote 521: - - Cf. Pollock and Maitland, I. 331: “The clause expunged from the - Charter seems practically to have fixed the law.” - ------ - -Henry III., however, entirely disregarded the rule which forbade the -licensing of extraordinary aids. Like his ancestors, he was prepared to -grant writs on almost any plausible pretext. From the _Patent_ and -_Close Rolls_, as well as from other sources, illustrations of the -Crown’s earlier and later practice may readily be collected. - -(1) _Scutages._ In 1217, for example, Henry granted permission to all -Crown tenants who had served in person to collect scutage from their -knights.[522] - ------ - -Footnote 522: - - _Close Rolls_, I. 306, cited Pollock and Maitland, I. 331. - ------ - -(2) _Ordinary Aids._ (_a_) John in 1204 authorized the collection of “an -effectual aid” from the knights and freeholders of the Constable of -Chester for the ransom of their lord.[523] (_b_) A royal writ in 1235 -allowed Henry Tracey, as already mentioned, to take an aid for his -eldest daughter’s marriage. - ------ - -Footnote 523: - - _Patent Rolls_, 5 John, cited Madox. I. 615. - ------ - -(3) _Special Aids._ (_a_) When a _fine_ of sixty marks was incurred in -1206 by the Abbot of Peterborough, John allowed him to distrain his -under-tenants for contributions.[524] (_b_) An heir, paying _relief_, -might likewise transfer the obligation to his freeholders.[525] (_c_) -The lord’s _debts_ were frequently paid by his tenants. The returns to -the Inquest of 1170 contain particulars of the “sums given individually -by some forty burgesses of Castle Rising towards paying off the -mortgages of their lord, the Earl of Arundel, who was clearly in the -hands of the Jews”;[526] while in 1234 the Earl of Oxford and the Prior -of Lewes each obtained a letter patent distraining their tenants to -contribute to the discharge of their debts.[527] Sufficient evidence is -thus preserved that Henry III. took full advantage of the omission from -his own charters of this part of his father’s promises. He did not -question too minutely the justice of applications for such writs, if -good fees were punctually paid. His letters, during the earlier years of -his reign, authorized the taking of a “reasonable” aid, without hinting -at any mode of determining what that was. This is illustrated by the -procedure adopted by Henry Tracey in 1235, who apparently debated with -his assembled knights of Devonshire the amount to be paid as -“reasonable,” and finally accepted 20s. per fee.[528] It is interesting -to note, however, that this same mesne lord, twelve years later, -obtained a writ bidding the sheriff of Somerset assist him to collect -“the scutage of Gascony” at a specified rate, namely, 40s. per fee.[529] - ------ - -Footnote 524: - - _Close Rolls_, 7 John, cited Madox, I. 616. - -Footnote 525: - - See Glanvill, IX. 8. - -Footnote 526: - - See Round, _Commune of London_, 130. - -Footnote 527: - - See Madox, I. 617, citing _Patent Rolls_, 18 Henry III. Various other - examples are given by Pollock and Maitland, I. 331, _e.g._ “the earl - of Salisbury, to enable him to stock his land.” - -Footnote 528: - - _Supra_, p. 303, and cf. Pollock and Maitland, I. 331. - -Footnote 529: - - See Madox, I. 677. - -The first Statute of Westminster virtually reverted to the rule laid -down in 1215, for its terms imply that aids could only be taken on the -three well-known occasions. The vague declaration that these should be -reasonable in amount is replaced by the specification of a fixed rate, -namely 40s., or double what had been usual at an earlier period. -Definition of the amount and times of payment may, however, have been -worth purchasing even at this increase. - ------ - - - - - CHAPTER SIXTEEN. - -Nullus distringatur ad faciendum majus servicium de feodo militis, nec -de alio libero tenemento, quam inde debetur. - - No one shall be compelled to perform greater service for a knight’s - fee, or for any other free tenement, than is due therefrom. - - -For military tenants, the transition from scutage to service was a -natural one; since it was not enough to protect themselves from -exactions in money, if they were still exposed to arbitrary exactions in -kind. John, therefore, declared that no freeholder should be constrained -to do more service for his lands than he was legally bound to do. -Disputes might arise, however, as to what extent of service actually was -due in each particular case, and Magna Carta did nothing to remove such -ambiguities. The difficulties of definition, indeed, were enormous, -since the duration and conditions of service might vary widely even -among tenants-in-chivalry, in consequence of special exemptions or -special burdens which appeared in title deeds or rested upon immemorial -usage. The barons would be unwilling to enter on so intricate and -laborious a task, fearing that the introduction of such complications -might do more harm than good. The necessity for accurate definition may -never have occurred to them: the main purport of their grievance was so -vividly present to their own minds that they did not acknowledge the -possibility of any mistake. The military Crown tenants had frequently -objected to serve abroad, particularly during John’s campaigns in -Poitou, which involved a long expensive journey to a region in which -they had nothing at stake.[530] They regarded themselves as not legally -bound to make expeditions to such portions of the Angevin Empire as had -not belonged to the Norman kings when their ancestors got their fiefs. -To force them to enter on campaigns to the south of France, or to fine -them heavily for staying at home, was, they argued, to distrain them _ad -faciendum majus servicium de feodo militis quam inde debetur_. When they -inserted these words in the Charter, they doubtless regarded them as an -absolute prohibition of compulsory service in Poitou, at all -events.[531] The clause was wide enough, however, to include many minor -grievances connected with service. The barons did not confine its -provisions to military service even, but extended it to other forms of -freehold tenure (“_nec de alio libero tenemento_”). No freeholder, -whether in socage, serjeanty, or frankalmoin, could in future be -compelled to render services not legally due. - ------ - -Footnote 530: - - See the authorities cited _supra_, p. 85, nn. I and 2. - -Footnote 531: - - In the so-called “unknown Charter of Liberties” (see Appendix) John - concedes to his men “_ne eant in exercitu extra Angliam nisi in - Normanniam et in Brittaniam_,” a not unfair compromise, which may - possibly represent the sense in which the present chapter was - interpreted by the barons. - ------ - -If the barons thought they had thus settled the vexed questions -connected with foreign service, they deceived themselves. Although this -chapter (unlike those dealing with scutage) remained in full force in -all subsequent confirmations, it was far from preventing disputes. Yet -the disputants in future reigns occupied somewhat different ground. From -the days of William I. to those of Charles II., when the feudal system -was abolished, quarrels frequently arose, the most famous of which -culminated in 1297 in Edward’s unseemly wrangle with the Earls of -Norfolk and Hereford, whose duty it was to lead the royal army as -hereditary Constable and Marshal respectively, but who refused -point-blank to embark for Gascony except in attendance on the king’s -person.[532] - ------ - -Footnote 532: - - Walter of Hemingburgh, II. 121. Cf., on the whole subject of foreign - services, _supra_, 154. - ------ - -It has been shown in the Historical Introduction[533] how the -obligations of a military tenant fell naturally into three groups -(services, incidents, and aids), while a fourth group (scutages) was -added when the Crown had adopted the expedient of commuting military -service for its equivalent value in money. - -Feudal grievances also may be arranged in four corresponding groups, -each redressed by special clauses of Magna Carta: abuse of _aids_ by -chapters 12, 14, and 15; abuse of the feudal _incidents_, by chapters 2 -to 8; abuse of _scutage_, by chapters 12 and 14; and abuse of _service_, -by the present chapter, which thus completes the long list of provisions -intended to protect tenants against their feudal lords. - ------ - -Footnote 533: - - _Supra_, 72–86. - ------ - - - - - CHAPTER SEVENTEEN. - -Communia placita non sequantur curiam nostram sed teneantur in aliquo -loco certo. - - Common pleas shall not follow our court, but shall be held in some - fixed place. - - -An attempt was here made to render royal justice cheaper and more -accessible. Law-suits in which the Crown had no special interest, common -pleas, were to be held in some one, fixed, pre-appointed spot, and must -no longer follow the king as he moved about from place to place. The -full extent of the boon conferred by this reform will be better -appreciated after a short consideration of the method of dispensing -justice adopted by Henry II. and his sons. - -I. _The Curia Regis as a Court of Law._ The evil complained of was a -characteristically medieval one, and arose from the fact that all -departments of government were originally centred in the king and his -household, or _Curia Regis_, which performed royal and national business -of every kind. This _Curia Regis_, indeed, united in itself the -functions of the modern Cabinet, of the administrative departments (such -as the Home Office, the Foreign Office, and the Admiralty), and of the -various legal tribunals. It was the parent _inter alia_ of the Court at -St. James’s and the courts at Westminster. One result of throwing so -many and miscellaneous duties on a small body of hard-worked officials -was to produce a congestion of business. Nothing could be done outside -of the royal household, and that household never tarried long in any one -spot. Everything was focussed to one point, but to a point constantly in -motion. Wherever the king went, there the _Curia Regis_, with all its -departments, went also. The entire machinery of royal justice followed -Henry II., as he passed, sometimes on the impulse of the moment, from -one of his favourite hunting seats to another. Crowds thronged after him -in hot pursuit, since it was difficult to transact business of moment -elsewhere. - -This entailed intolerable delay, annoyance, and expense upon litigants -who brought their pleas for the king’s decision. The case of Richard -d’Anesty is often cited in illustration of the hardships which this -system inflicted upon suitors. His own account is extant and gives a -graphic record of his journeyings in search of justice, throughout a -period of five years, during which he visited in the king’s wake most -parts of England, Normandy, Aquitaine, and Anjou. The plaintiff, -although ultimately successful, paid dearly for his legal triumph. -Reduced to borrow from the Jews to meet his enormous outlays, mostly -travelling expenses, he had to discharge his debts with accumulations of -interest at the ruinous rate of 86⅔ per cent.[534] - ------ - -Footnote 534: - - Cf. J. F. Stephen, _Hist. of Crim. Law_, I. 88-9. - ------ - -II. _Common Pleas and Royal Pleas._ Long before 1215 all litigations -conducted before the king’s courts had come to be divided roughly into -two classes, according as the royal interests were or were not specially -affected by the issue. Those on one side of this fluctuating line were -known as royal pleas, or “pleas of the Crown,” provisions for holding -which are contained in chapter 24, those on the other side as ordinary -pleas or “common pleas,” to which alone the present chapter refers. As -these ordinary suits did not require to be determined in the royal -presence, it was therefore possible to appoint a special bench of judges -to sit permanently in some fixed spot, to be selected once for all as -likely to suit the convenience of litigants. No town was named in Magna -Carta; but Westminster, even then the natural home of law, was probably -intended from the first. It is Westminster that Sir Frederick Pollock -has in mind when he writes in reference to this chapter: “We may also -say that Magna Carta gave England a capital.”[535] The barons in 1215, -however, in asking this reform, were not insisting on any startling -innovation, but demanding merely the strict observance of a rule long -recognized. During most of John’s reign, a court did sit at Westminster -dispensing justice, with more or less regularity; and there most “common -pleas” were tried, unless John ordered otherwise.[536] Magna Carta -insisted that all exceptions must cease; the rule of law must supersede -the royal caprice. - ------ - -Footnote 535: - - _Jurisprudence and Ethics_, 209. Sometimes, however, another “fixed - place” was substituted. The Court of Common Pleas once sat at York - under Edward III. and at Hertford under Elizabeth. See Maitland, - _Select Pleas of the Crown_, xiii. The Statute 2 Edward III. c. 11, - enacted that it should not be removed to any new place without due - notice. - -Footnote 536: - - See Prof. Maitland, _Select Pleas of the Crown_, xiii.-xvi. - -III. _Effects of Magna Carta on the genesis of the three Courts of -Common Law._ The ultimate consequences of the accomplishment of this -reform reached further than was foreseen. Intended merely to remove from -litigants a practical grievance of frequent occurrence, it had important -indirect effects on the development of the English Constitution. By -securing for common pleas a permanent home, it gave an impetus to the -disintegrating tendencies already at work within the many-sided -household of the king. It contributed somewhat to the slow process -whereby the _Curia Regis_, as an administrative organ, was -differentiated from the same _Curia_ as the dispenser of justice. It -helped forward the cleavage destined to divide completely the future -Courts of Westminster from the Court of St. James’s and from Downing -Street. Nor was this all: the special treatment accorded to “common -pleas” emphasized the distinction between them and royal pleas, and so -contributed to the splitting up of the same _Curia Regis_, on its -judicial side, into two distinct tribunals. One little group of judges -were set apart for hearing common pleas, and were known as "the king’s -Judges of the Bench," or more briefly as “the Bench,” and at a later -date as the Court of Common Pleas. A second group, reserved for royal -pleas, became the court _Coram Rege_, known subsequently as the Court of -King’s Bench. There were thus two benches: a common bench for common -pleas and a royal bench for pleas of the Crown.[537] - ------ - -Footnote 537: - - Cf. _supra_, 109. - ------ - -The double process by which these two small courts separated themselves -slowly from the parent court and from each other began long prior to -Magna Carta, and was not completed before the close of the thirteenth -century. These benches were also closely linked with a third bench, -known for centuries as the Court of Exchequer, which was in its origin -merely one department of that government bureau, the king’s financial -Exchequer—that office in which money was weighed and tested and the -royal accounts drawn up. Many disputes or pleas affecting Crown debts -and debtors had to be there decided, and in due time a special group of -officials were set aside to try these. These men, called, not judges, -but “barons of the exchequer,” formed what was in fact, though not in -name, a third bench or court of justice. - -All three of the Courts of Common Law—the Court of King’s Bench, the -Court of Common Pleas, and the Court of Exchequer—were thus offshoots of -the king’s household. In theory, each of these ought to have confined -itself to the special class of suits to which it owed its origin—to -royal pleas, common pleas, and exchequer pleas respectively; but by a -process well known to lawyers and law-courts in all ages, each of them -eagerly encroached on the jurisdictions and the fees appropriate to the -others, until they became, for most purposes, three sister courts of -similar and co-ordinate authority. They were bound to decide all suits -according to the technical and inflexible rules of common law; and their -jurisdiction thus required a supplement, which was supplied by the -genesis of the Court of Chancery, dispensing, not common law, but -equity, which professed to give (and, for a short time, actually did -give) redress on the merits of each case as it arose, unrestrained by -precedents and legal subtleties. - -IV. _The Evolution of the Court of Common Pleas._ The comment usually -made upon the present chapter is that we have here the origin of the -Court of Common Pleas. Now, legal institutions do not spring, -full-fledged, into being. The Court of Common Pleas, like its sister -Courts of King’s Bench and Exchequer, was the result of a long process -of gradual separation from a common parent stem. Prior to 1215 several -tentative efforts seem to have been made towards establishing each of -these. On the other hand, it is probable, nay certain, that long after -1215 the Court of Common Pleas did not completely shake off either its -early dependence upon the _Curia Regis_, or yet its close connection -with its sister tribunals. - -Three stages in the process of evolution may be emphasized. (1) The -earliest trace of the existence of a definite bench of judges, set apart -for trying common pleas, is to be found in 1178, not in 1215. When Henry -II. returned from Normandy in the former year, he found that there had -been irregularities in his absence. To prevent their recurrence, he -effected certain changes in his judicial arrangements, the exact nature -of which is matter of dispute. A contemporary writer[538] relates how -Henry chose two clerks and three laymen from the officials of his own -household, and gave to these five men authority to hear all complaints -and to do right “_and not to recede from his court_.” It was long -thought that this marked the origin of the Court of King’s Bench, but -Mr. Pike[539] has conclusively proved that the bench thus established -was the predecessor, not of the royal bench, but rather of the bench for -common pleas. - ------ - -Footnote 538: - - The chronicler known as Benedict Abbot, I. 107 (Rolls Series). - -Footnote 539: - - _House of Lords_, 32. - ------ - -In 1178, then, these five judges were set apart to hear ordinary suits; -but they were specially directed not to leave Henry’s court; so that -common pleas still “followed the king,” even ordinary litigants in -non-royal pleas having to pursue the king in quest of justice as he -passed from place to place in quest of sport. - -It must not be supposed that the arrangement thus made in 1178 settled -the practice for the whole period of thirty-seven years preceding the -grant of Magna Carta. On the contrary, it was merely one of many -experiments tried by that restless reformer, Henry of Anjou; and the -separate court then instituted may have been pulled down and set up -again many times. The bench which appears in 1178 had probably, at best, -a fitful and intermittent existence. There is evidence, however, that -some such court did exist and did try common pleas in the reigns of -Richard and John.[540] On the other hand, this tribunal had in John’s -reign ceased to follow the king’s movements habitually (thus -disregarding the decree of 1178), and had established itself at -Westminster.[541] It was in 1215 considered an abuse for John to try a -common plea elsewhere. Times had changed since his father had granted as -a boon that a set of judges should remain constantly at “his court” to -try such cases. - ------ - -Footnote 540: - - See Prof. Maitland, _Sel. Pl. Crown_, xiii.-xvi.; see also in _Pipe - Roll_, 7 John (cited Madox, I. 791) how money was paid that a plea - pending before the _Justiciarii de banco_ might be heard _coram rege_. - This entry proves that in 1205 there were two distinct courts, one - known as _de banco_ and the other as _coram rege_. - ------ - -Footnote 541: - - See Maitland, _Ibid._ - ------ - -(2) Magna Carta in 1215 gave authoritative sanction to the already -recognized rule that common pleas should be tried at Westminster, -instead of moving with the king. No exceptions were henceforth to be -allowed. Young Henry renewed this promise, and the circumstance of his -minority favoured its strict observance. A mere boy could not make royal -progresses through the land dispensing justice as he went. Accordingly, -all pleas continued for some twenty years to be heard at Westminster. -The same circumstances, which thus emphasized the stability of common -pleas (along with all other kinds of pleas) in one fixed place, may have -arrested the process of cleavage between the two benches. All the judges -of both courts sat at Westminster, and therefore there was the less need -for allocating the business between them with any exactitude. The two -benches were in danger of coalescing. - -(3) About the year 1234 a third stage was reached. Henry began to follow -the precedent, set by his ancestors, of moving through his realm with -judges in his train, hearing pleas wherever he stopped. While one group -of judges went with him, another remained at Westminster. Some way of -allocating the business had therefore to be found. Common pleas, in -accordance with Magna Carta, remained stationary; while pleas of the -Crown went on their travels. The split between the two benches now -became absolute. Each provided itself with separate records. From the -year 1234, two continuous series of distinct rolls can be traced, known -respectively as _rotuli placitorum coram rege_ and _rotuli placitorum de -banco_. If any date in the history of one law court, which is in process -of becoming two, can be reckoned as specially marking the point of -separation, it should be that at which separate rolls appear. The -court’s _memory_ lies in its records, which are thus closely associated -with its identity. In 1234 the common bench and the royal bench had -become distinct.[542] Evidence drawn from a few years later proves that -a definition of common pleas had been arrived at and that the rule which -required them to be held “in a fixed place” was insisted on. While Henry -and his justices sat in judgment at Worcester in 1238, a litigant -protested against his suit being tried before them. It was a “common -plea” and therefore, he argued, ought not to follow the king, in -violation of Magna Carta. At Westminster only, not at Worcester or -elsewhere, could his case be heard.[543] - ------ - -Footnote 542: - - See Maitland, _Sel. Pl. Crown_, xviii. - -Footnote 543: - - See _Placitorum Abbreviatio_ (p. 105) 21 Henry III., cited Pike, - _House of Lords_, p. 41. Cf. also Bracton’s _Note Book_, pleas Nos. - 1213 and 1220. - ------ - -With royal pleas, however, it was very different: for long they -continued to follow the king’s person without any protest being raised; -and the Court of King’s Bench did not finally settle at Westminster for -nearly a century after the Court of Common Pleas had been established -there. So late as 1300, Edward I. ordained by the _Articuli super -cartas_ that “the Justices of his Bench” (as well as his Chancellor) -should follow him so that he might have at all times near him “some -sages of the law, which be able duly to order all such matters as shall -come into the Court at all times when need shall require.”[544] - ------ - -Footnote 544: - - 28 Edward I. c. 5. - ------ - -V. _Erroneous Views._ In the reign of Edward I. the real motive of this -chapter of Magna Charta—so quickly had the organization of the law -courts progressed—had already been lost sight of. The day of wandering -common pleas, such as that of Richard d’Anesty, had been long forgotten. -Some litigants of Edward’s time had, however, a different grievance of -their own, connected with the hearing of their suits. The Court of -Exchequer was willing, for an adequate consideration, to place its -specially potent machinery, devised originally for the king’s exclusive -use, at the disposal of private creditors, thus treating “common pleas” -as “exchequer pleas.” Ordinary debtors, summoned as defendants before -the _barones scaccarii_, were subjected to harsher treatment than they -would have experienced elsewhere. It was not unnatural that defendants -who found themselves thus hustled should read the words of Magna Carta -relative to “common pleas” as precisely suited to their own case. They -made this mistake the more readily as the original motive had been -forgotten. The Charter was thus read as preventing the stationary Court -of Exchequer (not the constantly moving King’s Bench) from hearing -ordinary suits. This erroneous view received legislative sanction. The -_Articuli super cartas_ in 1300 declared that no common pleas should -thenceforth be held in the Exchequer “contrary to the form of the Great -Charter.”[545] - ------ - -Footnote 545: - - See 28 Edward I. c. 4. Many previous attempts had been made to keep - common pleas out of the Exchequer _e.g._ the writs of 56 Henry III. - and 5 Edward I. (cited Madox, II. 73-4) the so-called statute of - Rhuddlan (12 Edward I., see _Statutes of Realm_, I. 70). Madox also - (II. 73-4) takes the erroneous view that c. 17 of the Great Charter - relates to the Exchequer; so does Mr. Bigelow (_History of Procedure_, - 130–1), who goes further astray by explaining the point of the - grievance as the difficulty of getting speedy justice at the - Exchequer, because the barons refused to sit after their fiscal - business had been finished, at the Easter and Michaelmas sessions. - This is an error: the Barons of Exchequer made no difficulty about - hearing pleas: quite the contrary. Plaintiffs were equally eager to - purchase the writs which they were keen to sell: it was only - defendants (debtors) who objected to the rapid and stringent procedure - for enforcing payment adopted by this efficient court. The sheriffs - and others waiting to render accounts before the Exchequer also - protested against the congestion of business produced at the Exchequer - by the eagerness of litigants who pressed there for justice. See - Madox, II. 73. Plaintiffs had no reason to complain. - ------ - -This is a clear misinterpretation of the intention of Magna Carta. The -Exchequer never “followed the Crown”; it stayed at Westminster where its -offices, tallies, and pipe rolls were. The Charter would have expressed -itself in widely different words if it had desired to exclude common -pleas from the Exchequer. The _Articuli super Cartas_, however, -attempted what the Charter of 1215 did not. After 1300 it was clearly -illegal to hold any pleas in the Exchequer, unless such as affected the -Crown and its ministers. Subsequent statutes confirmed this; but their -plain intention was always defeated by the ingenious use of legal -fictions and the connivance of the Barons of Exchequer, who welcomed the -increase of their fees which kept pace with the increase of -business.[546] - ------ - -Footnote 546: - - The fiction of “Crown debtors” is well known: plaintiffs obtained a - hearing in the Exchequer for their common pleas by alleging that they - wished to recover debts due to them “in order to enable them to answer - the debts they owed to the king.” See Madox, II. 192. - ------ - -The evil directly attacked by Magna Carta was something quite -different—an evil wider, more pressing and less technical, namely, the -practice of causing ordinary litigants, with their legal advisers and -witnesses, to dance attendance on a constantly moving court. - - - - - CHAPTER EIGHTEEN. - -Recogniciones de nova dissaisina, de morte antecessoris, et de ultima -presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos, -vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus -duos justiciarios per unumquemque comitatum per quatuor vices in anno, -qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, -capiant in comitatu et in die et loco comitatus assisas predictas. - - Inquests of _novel disseisin_, of _mort d’ancestor_, and of _darrein - presentment_, shall not be held elsewhere than in their own - county-courts,[547] and that in manner following,—We, or, if we should - be out of the realm, our chief justiciar, will send two justiciars - through every county four times a year, who shall, along with four - knights of the county chosen by the county, hold the said assizes[548] - in the county court, on the day and in the place of meeting of that - court. - - ------ - -Footnote 547: - - “_Comitatus_” indicates both the county where the lands lay and the - court of that county. It was originally the sphere of influence of a - comes or earl. Cf. _supra_, c. 2, (p. 238, n.) - -Footnote 548: - - “The _said_ assizes” were previously called, not assizes but - “inquests” (_recogniciones_), a wider term of which the three petty - assizes here named were three special applications. - ------ - -Provision is thus made for holding before the king’s travelling -justices, frequently and in a convenient manner, three species of -judicial inquests known as “the three petty assizes.” These are of -exceptional interest, not only in relation to Magna Carta, but from -their intimate connection with several constitutional problems of prime -importance; with the reforms of Henry II. on the one hand, and with the -genesis of trial by jury and of the Justices of Assize on the other. - -I. _The Curia Regis and the travelling Justices._ From an early date, -certainly from the accession of Henry I., it was the Crown’s practice to -supplement the labours which its officials conducted within the -precincts of the royal exchequer by the occasional despatch of chosen -individuals to inspect the provinces in the royal interests, collecting -information and revenue, and, incidentally, hearing lawsuits. Justice -was thus dispensed in the king’s name by his delegates in every shire of -England, and a distinction arose between two types of royal courts: (1) -_the King’s Council and its offshoots_ (including the three courts of -common law and the court of chancery) which at first followed the king’s -person, but gradually, as already shown,[549] found a settled home at -Westminster; and (2) _the courts of the itinerant justices_ which -exercised such delegated authority as the Crown chose from time to time -to entrust to them. The natural sphere of the labours of these royal -commissioners as they passed from district to district was the court of -each shire, specially convened to meet them. They formed in this way the -chief link between the old local popular courts and the system of royal -justice organized by Henry II.,[550] subordinating the former to the -latter, until the county courts virtually became royal courts. These -travelling justices passed through two stages, two different types -receiving royal recognition at different periods, the Justices in Eyre -and the Justices of Assize respectively. - ------ - -Footnote 549: - - See _supra_, c. 17. - -Footnote 550: - - Cf. _supra_, p. 106. - ------ - -(_a_) _The Justices in Eyre_ were the earliest form of travelling -judges, though their original duties were rather financial and -administrative, than strictly judicial. Their history extends from the -reign of Henry I. to the end of the fourteenth century.[551] Their -outstanding characteristics were the sweeping nature of the commissions -under which they acted (_ad omnia placita_), the harsh and drastic way -in which they used their authority, and their intense unpopularity. -Their advent was dreaded like a pestilence: each district they visited -was left impoverished by fines and penalties. On one occasion, the men -of Cornwall “from fear of their coming, fled to the woods.”[552] - ------ - -Footnote 551: - - See W. S. Houldsworth (_History of English Law_, p. 115), who cites - 1397 as the date of the final abolition of Eyres. - -Footnote 552: - - This was in 1233: see Pollock and Maitland, I. 181. - ------ - -An eyre was only resorted to at long intervals—every seven years came to -be the recognized term—and was intended as a severe method of punishing -delinquencies and miscarriages of justice occurring since the last one, -and of collecting arrears of royal dues. It was not a visit from these -universally-hated Justices of Eyre that the barons in 1215 demanded four -times a year. - -(_b_) _The Justices of Assize_ were also travelling judges, but in their -original form at least, possessed hardly another feature in common with -the Justices in Eyre. Their history extends from a period not earlier -than the reign of Henry II. down to the present day.[553] They seem to -have been popular from the first, as their primary function was to -determine pending suits by a rational and acceptable form of procedure; -while the scope of their jurisdiction, although gradually extended as -their popularity increased, was at all times limited strictly by the -express terms of their commissions. They were regarded not as royal -tax-gatherers armed with harsh powers of coercion, but as welcome -bearers of justice to the doors of those who needed it. - ------ - -Footnote 553: - - Blackstone, _Commentaries_, III. 58, assigns 1176, (the assize of - Northampton) as the date of their institution. - ------ - -At first their duties were confined to one species of judicial work, -namely, to presiding at enquiries of the kind specially mentioned in the -text. These particular inquests were known as “assizes,” and the new -species of travelling judges were hence called “Justices of Assize,” a -name which has clung to them for centuries, although their jurisdiction -has been gradually increased till it now includes both civil and -criminal pleas of every description, and although meanwhile the -invention of new forms of process has superseded the old “assizes,” and -at last necessitated their total abolition.[554] They are still -“justices of assize” in an age which knows nothing of assizes. - ------ - -Footnote 554: - - See Statute 3 and 4 William IV. c. 27 §§ 36-7. The last actual case of - a Grand Assize occurred in _Davies_ v. _Loundes_, in 1835 and 1838 (1 - Bing. N. C. 597, and 5 Bing. N. C. 161). - ------ - -II. _The Nature and Origin of the three Petty Assizes._ The institution -of the "assizes"—particular forms of the sworn inquest—occupied a -prominent place among the expedients by which Henry II. hoped to -substitute a more rational procedure for the form of proof known as -trial by combat.[555] - ------ - -Footnote 555: - - The name “Assize” is sometimes a source of confusion, because of the - various meanings which attach to it. (1) Originally it denoted a - session or meeting of any sort. (2) It came to be specially reserved - for sessions of the king’s Council. (3) It was applied to any - Ordinance enacted by the king in such a session, _e.g._ the Assize of - Clarendon or the Assize of Northampton. (4) It was extended to every - institution or procedure established by such royal ordinance, but (5) - more particularly applied to the institutions or procedures known as - the Grand Assize, and the Petty Assizes, from which the “Justices of - Assize” took their name. (6) Finally, it denotes at the present day a - “session” of these Justices of Assize, thus combining something of its - earliest meaning with something of its latest. In certain contexts it - has other meanings still, _e.g._ (7) an assessment or financial burden - imposed at a “session” of the king’s council or of some other - authority. - -The _duellum_, introduced at the Norman Conquest, remained for a century -thereafter the chief method in use among the upper classes for -determining all serious pleas or litigations. Gradually, however, it was -confined to two important groups of pleas, one civil and the other -criminal: namely, appeals of treason and felony on the one hand, and -suits to determine the title to land on the other.[556] This process of -restriction was accelerated by the deliberate policy of Henry II., who -attempted, indeed, to carry it much further, devising machinery which -provided for the defendant or accused party, wherever possible, an -option by resorting to which he could, in an ever increasing variety of -circumstances, escape trial by battle altogether. Under chapter 36 will -be explained the expedient adopted for evading combat in an appeal of -treason or felony. The present chapter relates to the procedure devised -by Henry for superseding the _duellum_ in certain important groups of -civil pleas,[557] and incidentally affords proof that this part of his -reforms had already become popular with the opponents of the Crown. The -frequent use of the three Petty Assizes was now insisted on, although -the Grand Assize was still viewed askance for reasons to be explained in -connection with chapter 34. - ------ - -Footnote 556: - - See Neilson, _Trial by Combat_, 33–6, and authorities there cited. - -Footnote 557: - - Cf. _supra_, pp. 103-4 for the place of “combat” in legal procedure; - and pp. 108-9 for Henry’s policy in discouraging it. For the later - history of trial by battle, see _infra_, under c. 36. - ------ - -(1) _The Grand Assize_ is not mentioned in Magna Carta; but some -acquaintance with it is a necessary preliminary to a proper appreciation -of the Petty Assizes. In the troubled reign of Stephen—which was rather -the reign of anarchy in his name—lands changed hands frequently. This -left to his successor a legacy of quarrels, too often leading to -bloodshed. There was hardly an important estate in England to which, at -Henry’s accession, two or more rival magnates did not lay claim. -Constant litigations resulted, and the only legal method of deciding the -issue was the _duellum_. - -At some uncertain date, near the commencement of his reign, Henry II. -introduced a startling innovation. The holder of a property _de facto_ -(that is the man in actual enjoyment of the estate in virtue of a _bona -fide_ title), when challenged to combat by a rival claimant was allowed -an option: he might force the claimant (if the latter persisted) to -refer the whole matter to the oath of twelve knights of the -neighbourhood. Henry’s ordinance laid down careful rules for the -appointment of these recognitors. Four leading knights of the whole -county were first to be chosen, on whom was placed the duty of selecting -twelve knights of the particular district where the lands lay, and -these, with all due solemnity and in presence of the king’s justiciars, -declared upon oath to which suitor the lands belonged. Their decision -was final, and determined the question of ownership for all time -coming.[558] The name Grand Assize was applied alike to the procedure -and to the knights who gave the verdict. The twelve knights thus -anticipated the functions of a modern jury, while the king’s justiciars -acted like the presiding judge at a modern trial.[559] - ------ - -Footnote 558: - - See Glanvill, II. 7. - -Footnote 559: - - The various steps in the procedure ought to be clearly grasped, (_a_) - A claimant challenged the title of the actual tenant in the court - baron of the lord, from whom the tenement was held, and offered battle - by a champion, who was supposed to be a witness. (_b_) The tenant (now - become a defendant) applied to the king for a royal writ, the issue of - which, _ipso facto_, stopped all procedure in the court baron, (_c_) - The claimant (plaintiff) had thus to make the next move; and Henry’s - ordinance left only one move which he could make, namely to apply for - a new royal writ, but one of a different kind. This new writ referred - the question of title to twelve knights of the Grand Assize. (_d_) - Before these could be appointed and give their verdict, many - formalities and delays necessarily intervened, involving expensive - journeys to the king’s _Curia_, first by the four appointing knights - and afterwards by the twelve appointed. Months and even years might - elapse before the final verdict was obtained. This ingenious reform, - while superseding trial by battle, incidentally superseded also the - jurisdiction of mesne lords. Hence the Grand Assize never became - popular with the magnates. Cf. under c. 34. - ------ - -Valuable as was this innovation, it had one obvious defect. The option -it conferred might sometimes be usurped by the wrong man. It was -intended to operate in the interests of order and justice by favouring -the peaceable holder _de facto_; but what if a turbulent and lawless -claimant, scorning an appeal to legal process, took the law into his own -hands, evicted the previous holder by the rude method of self-help, and -thereafter claimed the protection of Henry’s ordinance? In such a case -the man of violence—the holder _mala fide_—would enjoy the option -intended for his innocent victim. - -(2) _The petty assizes_ may, perhaps, be regarded as the outcome of -Henry’s determination to prevent such misuse of his new engine of -justice. If one claimant alleged that the other had usurped his rights -by violence or fraud, the king allowed the preliminary plea thus raised -to be summarily decided by the oath of twelve local landowners, -according to a procedure known as a petty assize. These petty assizes, -of which there were three kinds, all related to questions of -“possession,” as opposed to questions of “ownership,” which could only -be determined by battle or by the Grand Assize. - -(_a_) _The assize of novel disseisin._ The word “seisin,” originally -synonymous with “possession” in general, was gradually restricted by -medieval lawyers to the possession of real estate. “Disseisin” thus -meant the interruption of seisin or possession of land; and was the -technical term applied to such violent acts of eviction as were likely -to defeat the intention of Henry’s ordinance of the Grand Assize. -“Novel” disseisin implied that such violent ejection was of -comparatively recent date, for a summary remedy could only be given -where there had not been undue delay in applying for it. The first of -the petty assizes, then, was a rapid and peaceable method of -ascertaining by reference to sworn local testimony whether an alleged -recent eviction had really taken place or not. Without any of the law’s -delays, without any expensive journeys to the king’s Court or to -Westminster, but in a rapid manner and in the district where the lands -lay, twelve local gentlemen determined upon oath all allegations of this -nature. If the recognitors of the petty assize answered “Yes,” then the -evicted man would have “seisin” immediately restored to him, and along -with “seisin” went the valued option of determining what proof should -decide the "ownership"—whether it should be battle or the Grand Assize. -An ordinance instituting this most famous of the three petty assizes was -issued probably in 1166, a year fertile in legal expedients, and formed -a necessary supplement to the ordinance of the Grand Assize, preventing -all danger that the option intended for the man of peace should be -usurped by the man of violence.[560] - -(_b_) _The assize of mort d’ancestor._ The protection afforded to the -victim of a “novel disseisin” did not remove all possibility of justice -miscarrying. Interested parties, other than the man forcibly ejected, -even his heirs, were left unprotected. Further, an heir might be -forcibly deprived of his tenement either by his lord or by some other -rival claimant before he had an opportunity to take possession; never -having been “in seisin,” he could not plead that he had suffered -“disseisin.” For the benefit of such an heir, a second petty assize, -known as "mort d’ancestor," was invented.[561] This is mentioned in -article 4 of the Assize of Northampton, an ordinance issued by Henry in -1176; and this earliest known reference probably marks its origin. -Procedure, essentially similar to, though not quite so speedy or -informal as, that already described was thus put at the heir’s disposal. -If successful, he took the lands temporarily, subject to all defects in -his ancestor’s title, leaving as before the question of absolute -ownership to be determined (if challenged) by the more cumbrous -machinery of the Grand Assize. - ------ - -Footnote 560: - - The date of the ordinance of the Grand Assize is not known. It has - been argued that its origin may be traced to an earlier date than that - of the assize of novel disseisin (see Mr. J. H. Round in the - _Athenaeum_ for 28th January, 1899); but in any case the _logical_ - sequence seems to be that given in the text. The question of - _chronological_ sequence is still open. - -Footnote 561: - - At so late a date as 1267 it was found necessary to recognize by - statute the right of the heir who had come of age to oust his guardian - from his lands by an assize of _mort d’ancestor_. See Statute of - Marlborough, c. 16. - -(_c_) _The assize of darrein presentment._ Advowson or the right of -appointing the incumbent to a vacant church benefice was then, as now, a -species of real estate. Such patronage was highly prized, affording as -it did an opportunity of providing a living for a younger son or needy -relative; or it might be converted into ready cash. Disputes often arose -both as to the possession and as to the ownership of advowsons. Any one -who claimed the absolute right or property as against the holder must do -so by battle or the Grand Assize, exactly as in the case of any other -form of real estate; and the Charter says nothing on this head.[562] On -the other hand, the less vital question of possession might be more -rapidly determined. If a benefice fell vacant, and each of two -proprietors claimed the patronage, the Church could not remain without a -shepherd, for years perhaps, until the question of title was decided. -No; the man in possession was allowed to make the appointment. But who -was the man in possession? Clearly he who had (or whose father had) -presented a nominee to the living when the last vacancy occurred. Even -here there was room for dispute as to the facts. Twelve local men -decided which claimant had actually made the last appointment (the -“darrein presentment”); and the claimant thus preferred had a legal -right to fill up vacancies, remaining in possession until someone proved -a better title by battle or the Grand Assize. - ------ - -Footnote 562: - - Such was the law as late as 1285. The Statute of Westminster II. (13 - Edward I. c. 5) authoritatively explains that, when any one had - wrongfully presented a clerk to a vacant church, the real patron could - not recover his advowson except by a writ of right “_quod habet - terminari per duellum vel per magnam assisam_.” - ------ - -All three forms of the petty assize were merely new applications by -Henry Plantagenet of the royal procedure known in England, since the -Norman Conquest, as _inquisitio_ or _recognitio_.[563] - ------ - -Footnote 563: - - The relations of the assizes to the ancient _inquisitio_ and to the - modern jury are discussed _supra_, pp. 158-163. - ------ - -III. _The Assizes in 1215._ The petty assizes, when invented by Henry -II., were resented bitterly as innovations; but public opinion, half a -century later, had abundantly vindicated the wisdom of this part of his -reforms. The insurgent barons in 1215 were far from demanding their -abolition; their new grievance was rather that sessions of the justices -of assize were not held often enough. They prescribed the way in which -these assizes, now grown so popular, were to be held, and several points -were specially emphasized. (1) No inquiry of the kind was to be held -elsewhere than in the county where the property was situated. Justice -was in such cases to be brought to every landowner’s door, although -pleas of the Crown might still follow the king, and ordinary common -pleas had to be taken to Westminster. This was intended to save expense -and to meet the convenience of litigants, of those who served on -assizes, and of all concerned.[564] Within two years, however, it was -seen that this provision went too far. It was more convenient to hold -certain inquiries before the Bench at Westminster than in the particular -locality. The reissue of 1217 therefore made two important -modifications: (_a_) All assizes of darrein presentment were thereafter -to be taken before “the Justices of the Bench.” (_b_) Any assize of -novel disseisin or of mort d’ancestor revealing points of special -difficulty, might also be reserved for the decision of the Bench. An -element of uncertainty was thus introduced, of which the Crown took -advantage. In a reported case of the year 1221 it was decided that an -assize of mort d’ancestor should be held in its own county, not at -Westminster.[565] - ------ - -Footnote 564: - - Thus two successive chapters of Magna Carta emphasize two divergent - tendencies: c. 17 had demanded that “common pleas” should all be held - at Westminster, while c. 18 demands that “assizes” should _not_ be - taken there. In both cases, the object was to consult the convenience - of litigants. - -Footnote 565: - - See Bracton’s _Note Book_, case No. 1478; a case also cited by Coke - (_Second Institute, proem._). If this assize had presented points of - special difficulty it might have been held at Westminster without - violating Magna Carta. - ------ - -(2) John’s Charter further insists on quarterly circuits of Justices of -Assize; so that litigants in every county of England might have four -opportunities each year of having their disputes amicably settled. Such -excessive frequency was quite uncalled for, and involved unnecessary -expense on the king, and an amount of labour on his officers out of all -proportion to the good effected. The Charter of 1217, accordingly, -provided that a circuit should be made only once a year. In 1285, -however, it was enacted that they might be held three times a year, but -not oftener.[566] - ------ - -Footnote 566: - - 13 Edward I. c. 30. Stephen, _History of Criminal Law_, 105–7, gives - further details. - ------ - -(3) The Charter speaks of the two justices and of the four county -knights, but says nothing of the twelve knights from the immediate -neighbourhood of the disputed property. The omission has no special -significance. Magna Carta had no directions to convey on this matter, -and therefore it kept silence; but the presence of the twelve must have -been presumed, since their verdict formed the essential feature of the -entire procedure.[567] The twelve formed the jury, and the two justices -were the judges, while the chief duty of the four was to select the -twelve. The chapter directed the justices “to hold the assizes along -with the four knights”; but it does not appear whether the latter were -to sit as local assessors of the court, or to serve along with the -twelve recognitors, or to act as a link between the two. - ------ - -Footnote 567: - - See Assize of Northampton, c. 4. - ------ - -(4) One fact about them was clearly stated, namely, the mode of their -appointment. The four knights were to be “elected” in the county court -(_cum quatuor militibus ... electis per comitatum_), and much emphasis -has been laid on this provision by historians searching for ancient -prototypes of modern institutions. These knights have been warmly -welcomed as county magistrates elected on a more or less extended -suffrage.[568] - ------ - -Footnote 568: - - See, _e.g._ Stubbs, _preface_ to R. Hoveden, IV. xcviii.; Blackstone, - _Great Charter_, xxxvi.; Medley, _Engl. Const. History_, 130. - ------ - -As the provisions of the reissue of 1217 are more carelessly expressed, -and as in particular they contain no word implying “election,” it has -been assumed that a change in the mode of appointment was intended; that -a step tentatively taken towards representative local government in 1215 -was deliberately retraced two years later.[569] “_Electus_” however, in -medieval Latin was a vague word, differing widely from the ideas usually -associated with a modern “election,” and applied indiscriminately to all -methods of appointment or selection, even to the proceedings of officers -engaged by Edward I. to compel the enlistment of the best soldiers -available for his army. The twelve knights were to be “appointed,” not -“elected,” in the county court, and it remains doubtful whether the -sheriff, the magnates, or the body of the suitors, would have secured -the chief share in the appointment. No evidence is forthcoming that any -special importance was attached in 1217 to the use of the word -“_electus_,” and its omission may have been due to inadvertence. - ------ - -Footnote 569: - - Blackstone, _Ibid._, points out these changes in the charter of 1217: - “the leaving indefinite the number of the knights and the justices of - assize, the abolishing of the election of the former, and the reducing - the times of taking assizes to once in every year.” - ------ - -IV. _An Erroneous View._ Henry Hallam, commenting on this chapter, -seems to have misapprehended the issues at stake. "This clause stood -opposed on the one hand to the encroachments of the king’s court, -which might otherwise, by drawing pleas of land to itself, have -defeated the suitor’s right to a jury from the vicinage: and, on the -other, to those of the feudal aristocracy, who hated any interference -of the Crown to chastise their violations of law, or control their own -jurisdiction."[570] Hallam thus interprets the chapter as denoting a -triumph of the old local popular courts over both the king’s courts -and the courts of the feudal magnates. It denoted no such thing, but -marked in reality a triumph (so far as it went) of the king’s courts -over the tribunals of the feudal magnates—over the courts baron, as -they were afterwards called, the most important of the three courts -into which manorial jurisdictions afterwards split. The assizes, it is -true, were to be taken in the county court, but they were to be taken -there by the king’s justices, not by the sheriff. The county courts by -this time had fallen completely under the domination of the king, and -were to all intents and purposes (and in especial for this purpose) -royal courts. The present chapter is thus conclusive evidence of the -triumph of the king’s justice over all rivals in three important -groups of pleas. Royal justice was the best article in the market, -and, in spite of all defects, deserved the popularity which in this -province it had evidently won, even among the barons whose -jurisdiction it was superseding. - ------ - -Footnote 570: - - See _Middle Ages_, II. 464. - ------ - -V. _Later History of the Justices of Assize._ Whatever may have been the -exact date when there first went on tour throughout England travelling -judges entitled to the description of “Justices of Assize,” such -circuits, once instituted, have continued to be held at more or less -regular intervals from the beginning of the thirteenth century to the -present day. Their jurisdiction steadily widened under successive kings, -from Henry II. to Edward III.; and they gradually superseded the older -Justices of Eyre, taking over such of their functions as were not -inconsistent with the change that was gradually transforming the -medieval into the modern system of justice.[571] It was the custom for -the Crown to issue new commissions to the justices as they set out upon -each new circuit. Five distinct types of such commissions conferred -jurisdiction over five different departments of judicial business. - ------ - -Footnote 571: - - Cf. Coke, _First Institute_, 293 b.: “As the power of justices of - assises by many acts of parliament and other commissions increased, so - these justices itinerant by little and little vanished away.” - ------ - -(1) _The commission of assize_ was the earliest of all, authorizing them -to hold petty assizes, but not the grand assize. Of this sufficient has -already been said. - -(2) _The commission of nisi prius_ conferred a wider civil jurisdiction, -embracing practically all the non-criminal pleas pending at the time in -the counties which they visited. These powers were originally based on -the terms of the Statute of Westminster II., which became law in -1285,[572] and directed that all civil pleas (under certain exceptions) -might be heard in their own counties. Thenceforward most ordinary suits -might be tried either locally before the justices of assize, or else -before the bench at Westminster. The statute directed, however, that -sheriffs, in summoning jurors to Westminster, were only to do so -conditionally—jurors were to attend there unless already (_nisi prius_) -the justices of assize had come into the county; that is, if the -justices arrived meanwhile in the locality, the jurors and all others -concerned were saved a journey, and the pleas in question were heard on -the spot. The commissions under which the travelling justices heard -locally such civil pleas were therefore known as “Commissions of _nisi -prius_.” - ------ - -Footnote 572: - - 13 Edward I. c. 30. - ------ - -(3) _The commission of gaol delivery_ was, subsequently to 1299, -invariably conferred on the justices of assize, in accordance with a -statute of that year,[573] authorizing them to inspect all gaols and -enquire into all charges against prisoners, and to set free those -unjustly detained. Previously, similar powers had been spasmodically -conferred on separate commissioners, sometimes quite unfit for such a -trust, who had too often abused their authority. - ------ - -Footnote 573: - - 27 Edward I. c. 3. - ------ - -(4) _Commissions of Oyer and Terminer_, issued spasmodically from as -early a date as 1285,[574] to more or less responsible individuals, were -from 1329 onwards conferred exclusively on the justices of assize, who -thus obtained authority[575] “to hear and determine” all criminal pleas -pending in the counties they visited. This, combined with the commission -of gaol delivery, amounted to a full jurisdiction over crimes and -criminals of every kind and degree; just as the commissions of assize -and _nisi prius_ combined gave them full jurisdiction over all civil -pleas.[576] - ------ - -Footnote 574: - - 13 Edward I. c. 39; see Stephen, _Hist. Criminal Law_, p. 106. - -Footnote 575: - - 2 Edward III. c. 2. _Ibid._, 110. - -Footnote 576: - - It is unnecessary to do more than notice the exceptional “commissions - of trailbaston,” supposed to date from the Statute of Rageman (1276), - conferring special powers for the suppression of powerful wrongdoers. - These were soon superseded by the commissions of oyer and terminer. - ------ - -(5) _The ordinary commission of the peace_ was invariably issued to the -justices of assize from the reign of Edward III., conferring on them -powers similar to those of the local justices of peace in every county -which they might visit. - -By a process of the survival of the fittest the justices of assize, from -the small beginnings referred to in John’s Great Charter, thus gradually -gathered to themselves the powers exercised originally by various rival -sets of commissioners; and they have continued for many centuries to -perform the functions conferred by these five different commissions, -forming a characteristic and indispensable part of the judicial system -of England.[577] - ------ - -Footnote 577: - - Mr. W. S. Holdsworth, _Hist. Eng. Law_, 116–123, gives an admirable - and concise account of the justices and their commissions. For fuller - information see Stephen, _Hist. Criminal Law_, I. 97-111. - ------ - - - - - CHAPTER NINETEEN. - -Et si in die comitatus assise predicte capi non possint, tot milites et -libere tenentes remaneant de illis qui interfuerint comitatui die illo, -per quos possint judicia sufficienter fieri, secundum quod negocium -fuerit majus vel minus. - - And if any of the said assizes cannot be taken on the day of the - county court, let there remain of the knights and freeholders who were - present at the county court on that day, as many as may be required - for the efficient making of judgments, according as the business be - more or less. - - -This supplement to the preceding chapter prescribed the course to be -followed when the press of other business had prevented some of the -assizes on the agenda from being disposed of on the court day. The -shiremoot lasted for one day only, and to hold an adjourned session of -all the suitors on the morrow would inflict hardship on those whose -presence was required elsewhere. The framers of the charter were met by -a dilemma in seeking to combine the rapid dispatch of business with the -minimum of inconvenience to those who came to make the court. - -The Articles of the Barons had made two definite demands not readily -reconciled; namely that none save jurors and the parties to pending -suits should be summoned to meet the justices of assize on their -quarterly rounds (article 8); and that assizes should be “shortened” -(article 13), which simply meant that the law’s delays should cease. - -The terms of Magna Carta, as befitted a carefully-drawn, business-like -document, were more precise. They made it clear that assizes in the -normal case should be held in the county court—a point upon which the -Articles had been silent. This was a salutary provision, since a healthy -publicity accompanied the proceedings of the full shire-moot. Nothing -was said of “shortening” the procedure; and the Charter showed its -appreciation of the fact that there might be more business than could be -got through in one day. If that happened, a compromise must be made -between the claims of litigants wishing their pleas hastened and the -desire of other people to be discharged from further attendance. The -justices were directed to complete their labours on the morrow, but were -forbidden to retain anyone in attendance except the actual parties to -suits and a sufficient number of jurors. Those whom Magna Carta thus -compelled to wait a second day were exactly those whose presence the -Articles had stipulated for upon the first day—not admitting, indeed, -the possibility that a second day might be required. The discrepancy -between the schemes of the two documents might be explained on the -supposition that the device of timing the visit of the justices with the -date of holding the monthly shiremoot was only thought of after the -Articles of the Barons had been sealed.[578] - ------ - -Footnote 578: - - Subsequent practice did not conform to this rule. One _novel - disseisin_, or one _mort d’ancestor_ might be held by itself; and - complaint was made in 1258 that the sheriffs proclaimed in the market - places that all knights and freeholders must assemble for such an - inquest, and when they came not, amerced them at will (_pro voluntate - sua_). See Petition of Barons, c. 19 (Sel. Charters, 385). - ------ - -The Charter of 1217 made a different provision for the same contingency. -Unfinished assizes need no longer be taken in their own county on the -day following the county court, nor, indeed, on any other day. The -judges received full authority to bring them to a conclusion elsewhere -on their circuit according as it might suit their convenience. This -concession to the justices, taken in connection with the further -provisions of 1217, reserving all darrein presentments, together with -other assizes of any difficulty, for the decision of the bench, shows a -comparative disregard of the convenience of jurors, who might, in the -option of the justices, find themselves compelled either to follow the -assizes from shire to shire, or else to undertake the irksome journey to -Westminster, from which the Charter of 1215 had relieved them.[579] - ------ - -Footnote 579: - - Subsequent legislation vacillated between two policies, actuated at - times by a desire to restrain the discretionary powers of the - justices; and at others by experience of the way in which strict - adherence to inflexible rules was found to inflict hardships upon - litigants. The Statute of Westminster II. (13 Edward I. c. 30) - confirmed the power of the justices to reserve cases of mort - d’ancestor for decision by the bench, and _per contra_ allowed assizes - of darrein presentment (which it associated in this connection with - inquests _quare impedit_) to be taken “in their own counties.” The Act - 6 Richard II. c. 5 curtailed the discretionary powers previously - conferred, directing that justices assigned to take assizes and to - deliver gaols should hold sessions in the county towns in which the - shire courts were wont to be held. The Statute 11 Richard II. c. 11 - once more relaxed this rule, alleging that it had resulted in the - inconvenience of suitors. Therefore authority was given to the - chancellor, with the advice of the justices, to determine in what - places assizes might be held, notwithstanding the provisions of the - Statute of five years previous. - ------ - - - - - CHAPTER TWENTY. - -Liber homo non amercietur pro parvo delicto, nisi secundum modum -delicti; et pro magno delicto amercietur secundum magnitudinem delicti, -salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et -villanus eodem modo amercietur salvo waynagio suo, si inciderint in -misericordiam nostram; et nulla predictarum misericordiarum ponatur, -nisi per sacramentum proborum hominum de visneto. - - A freeman shall not be amerced for a small offence, except in - accordance with the degree of the offence; and for a grave offence he - shall be amerced in accordance with the gravity of his offence, yet - saving always his “contenement”; and a merchant in the same way, - saving his wares; and a villein shall be amerced in the same way, - saving his wainage—if they have fallen into our mercy: and none of the - aforesaid amercements shall be imposed except by the oath of honest - men of the neighbourhood. - - -This is the first of three consecutive chapters which seek to remedy -grave abuses connected with royal amercements. To understand fully what -these were requires some knowledge, not only of the system of legal -procedure of which they formed part, but also of previous systems. - -I. _Three stages of criminal law._ The efforts made in medieval England -to devise machinery for suppressing crime took various forms. Three -periods may be distinguished. - -(1) _The bloodfeud._ The earliest method of redressing wrongs of which -any evidence survives was the practice of retaliation, or the bloodfeud. -The injured man, or his heir if he were dead, took the law into his own -hands and exacted satisfaction by the aid of battle-axe or spear. This -right of vengeance, formerly clothed with the entire sanction of the -law, had practically disappeared before the dawn of authentic history in -England; but its previous existence may be confidently inferred from -certain traces which it left on the laws of a later period. - -(2) _Fixed money-payments._ At some early, but uncertain, date it had -become customary to accept money in lieu of vengeance. The new practice, -at first exceptional, and applied to cases only of accidental injury, -was gradually extended to all cases in which the wronged individual was -willing to accept a compromise. It was made compulsory on evil-doers to -offer solatium in money for every crime committed, and finally it was -made compulsory also upon the injured man to accept it when offered. At -this stage the right of private revenge had become almost a thing of the -past. It was lawful only after the aggrieved individual had demanded, -and been refused, compensation at the recognized rate. - -Various codes formulated intricate rules for determining the amounts -thus payable. Each man had his own money value or _wer_ (from the simple -freeman, reckoned at 200 shillings, up to the prelates and lay nobles, -estimated at much higher figures). These were the legal values at which -each man’s life was appraised. Smaller wrongs could be compensated by -smaller sums in name of damages, known as _bots_: so much for a foot, or -an eye, or a tooth. The king or other feudal lord exacted further -payment from the wrong-doer, under the name of _wites_, which are -sometimes explained as the price charged by the magistrate for enforcing -payment of the _wer_ or _bot_; sometimes as sums due to the community, -on the ground that every evil deed inflicts a wrong on society in -general, as well as upon its victim. - -(3) _Amercements._ A third system succeeded. This was of extreme -simplicity and differed widely in many ways from the complicated system -it superseded. It is found in full working order very shortly after the -Norman Conquest, but was still regarded as an innovation at the -accession of Henry I. It is known as the system of amercements. None of -our authorities contains an entirely satisfactory account of how the -change took place, but the following suggestions may be hazarded. The -sums demanded from a wrong-doer, who wished to buy himself back into the -protection of the law, and into the community of well-doers, became -increasingly burdensome. He had to satisfy the claims of the victim’s -family, of the victim’s lord, of the lord within whose territory the -crime had been committed, of the church, mayhap, whose sanctuary had -been invaded, of other lords who could show an interest of any sort, and -finally of the king as lord paramount. It became practically impossible -to buy back the peace once it had been broken. The Crown, however, -stepped in, and offered protection on certain conditions: the culprit -surrendered himself and all that he had to the king, placing himself -“_in misericordiam regis_,” and delivering a tangible pledge (_vadium_) -as evidence and security of the surrender.[580] - ------ - -Footnote 580: - - See Charter of Henry I. c. 8, which however, condemns the whole - practice among the other innovations of the Conqueror and Rufus. - ------ - -Although in theory the wrongdoer put his property unreservedly at the -king’s disposal, there was a tacit understanding that he should receive -in return, not only a free pardon, but also the restoration of the -balance of his effects, after the king had helped himself to a share. -Such a course, at first optional, would gradually come to be followed -with absolute uniformity. By-and-by, it was assumed that every culprit -wished to avail himself of this means of escape, and thus the words “in -mercy” were written in court records as a matter of course, after the -name of every one convicted of a crime. - -It is easy to understand why the Norman kings favoured this system; for -the Crown thus got whatever it chose to demand, while other claimants -got nothing. Gradually, then, the old complicated system of _wers_ and -_bots_ and _wites_ became obsolete and was in time forgotten altogether; -the system of amercements reigned in its stead. Strictly speaking, the -man’s life and limbs and all that he had were at the king’s mercy.[581] -The Crown, however, found that it might defeat its own interests by -excessive greed; and generally contented itself with exacting moderate -sums. Soon, rules of procedure were formulated for its own guidance. The -amounts taken in each case were regulated partly by the wealth of the -offender, and partly by the gravity of the offence. Further, it became a -recognized rule that the amount should be assessed by what was -practically a jury of the culprit’s neighbours; and attempts were also -made to fix a maximum.[582] - ------ - -Footnote 581: - - See _Dialogus de Scaccario_, II. xvi. - -Footnote 582: - - Cf. Pollock and Maitland, II. 511-4. There were, however, exceptions, - _e.g._ Henry II. would not accept money payments for certain forest - offences. Mutilation was inflicted. See Assize of Woodstock, c. 1, and - contrast Forest Charter of 1217, c. 10. - ------ - -Thus a sort of tariff grew up, defining the amounts to be exacted for -various offences of most general occurrence. The Crown and its officials -usually respected this in practice, but never formally abandoned the -right to demand more. Such payments were known as “amercements” and were -always technically distinguished from “fines” (or voluntary offerings). -Records, still extant, of the reign of John show us that for very petty -offences, men were constantly placed “in mercy”; for example, for -failure to attend meetings of the hundred or county court; for false or -mistaken verdicts; for petty infringements of the king’s forest rights; -and for a thousand other trivial faults. Every man who raised an action -and failed in it was amerced. It will be readily understood how -important it was that these amercements, forming so tempting a source of -revenue to the exchequer, should not be abused. The Charter of Henry I. -(chapter 8) had promised a remedy, drastic indeed but of a reactionary -and impossible nature. He there agreed to abolish altogether the system -of amercements (then of recent introduction) and to revert to the -earlier Anglo-Saxon system of bots and wites, already discussed. This -promise, like others, of Henry I. was made only to be broken.[583] - ------ - -Footnote 583: - - Cf. Pollock and Maitland (II. 512), who describe Henry’s promise as “a - return to the old Anglo-Saxon system of pre-appointed wites.” In order - to avoid unnecessary confusion, no mention has been made in the - account given above of a classification of amercements into three - degrees, which increases the obscurity surrounding their origin. The - _Dialogus de Scaccario_, II. xvi., tells how (_a_) for grave crimes, - the culprit’s life and limbs were at the king’s mercy as well as his - property; (_b_) for less important offences, his lands were forfeited, - but his person was safe; while (_c_) for minor faults, his moveable - effects only were at the king’s disposal. In the last case, the - offender was “_in misericordia regis de pecunia sua_.” Thus to be “in - mercy” did not always mean the same thing. Further, a villein or - dependent freeman on a manor might fall in the “mercy” of his lord, as - well as of the king. The records of manorial courts are full of petty - amercements for petty transgressions of the customs of the manor. - -II. _Magna Carta and Amercements._ All classes had an interest in this -subject, since no one could expect to pass through life (perhaps hardly -through a single year) without being subjected to one or more -amercements. Three chapters of Magna Carta accordingly are occupied with -remedies. Chapter 20 seeks to protect the ordinary layman; chapter 21, -the barons; and chapter 22, the clergy—thus vaguely anticipating the -conception of three estates of the realm;—commons, nobles and clergy. -The “third estate” is further analysed for the purposes at least of this -clause, into three subdivisions—the freeman, the villein, and the -merchant.[584] - ------ - -Footnote 584: - - Even Coke (_Second Institute_, p. 27) has to confess that for the - purposes of this chapter at least he must abandon the attempt made - elsewhere (_Ibid._, p. 4, and p. 45) to bring the villeins into the - class of freemen. Under the plea that the villein was relatively free - as against third parties except his lord, he claimed for him all the - benefits secured by anticipation in chapter 1 of the Charter, and he - made a special application of the same doctrine in connection with the - right to _judicium parium_ secured to all freemen by chapter 39 - (_q.v._). Here, however, he is forced to admit the distinction between - freeman and villein, the former term being, for the purpose of - amercements, virtually identified with “freeholder.” - ------ - -(1) _The amercement of the freeholder._ The great object of the reforms -here promised was to eliminate the arbitrary element; the Crown must -conform to its own customary rules. With this object, various safeguards -were devised to regulate the amercing of freemen. (_a_) For a petty -offence, only a petty sum could be taken. This was nothing new: the -records of John’s reign show that, both before and after 1215, very -small amounts were often taken: three-pence was a common sum. (_b_) For -grave offences, a larger sum might be assessed, but not out of -proportion to the offence. (_c_) In no case must the offender be pushed -absolutely to the wall. His means of livelihood must be saved to him. -Even if all other effects of the defaulting freeman had to be sold off -to pay the amount assessed, he was to retain his ancestral freehold (or -“contenement,” a word to be afterwards discussed). He might, however, -find himself liable for a large sum which he had to pay off by -instalments during many years. (_d_) Another clause provided machinery -for giving effect to all these rules. The amount of the amercement must -be fixed, not arbitrarily by the Crown, but by impartial assessors, “by -the oath of honest men of the neighbourhood.” - -It seems probable that all these provisions were declaratory of existing -usage, that is of the usage of John’s reign; but, apparently, a -different procedure and one less favourable to wrong-doers had been in -vogue, so recently as the reign of Henry II. Amercements had then been -assessed, not by local jurors but, by the barons of the exchequer, who -might, however, where arrears were still due, revise their own findings -of previous years.[585] - ------ - -Footnote 585: - - See note by editors of _Dialogus de Scaccario_, p. 207. - ------ - -The Pipe Roll of the fourteenth year of Henry II.[586] shows how a -certain priest, who in this respect stood on precisely the same footing -as a layman, had been placed “_in misericordiam_” of 100 marks by -William fitz John, one of the king’s justices, but how that sum was -afterwards reduced to 40 marks “_per sacramentum vicinorum suorum_.” It -seems a safe inference that, on the priest pleading poverty, the -question of his ability to pay was referred to local recognitors with -the result stated. This priest was subsequently pardoned altogether -“because of his poverty.” His case illustrates how an important change -was gradually effected. Local jurors first assisted, and then -superseded, the barons of exchequer in assessing the amounts payable as -amercements. This important boon, which transferred the decision from -unsympathetic Crown officials to the defaulter’s own neighbours, was -confirmed by Magna Carta to all clergy and to all members of the third -estate. It will be shown, in connection with chapter 21, how earls and -barons lost a similar privilege.[587] - ------ - -Footnote 586: - - Madox, I. 527. - -Footnote 587: - - Reeves, _History of English Law_, I. 248 (Third Edition) says “Upon - this chapter was afterwards framed the writ _de moderata - misericordia_, for giving remedy to a party who was excessively - amerced.” - ------ - -(2) _The amercement of the merchant._ The provisions in favour of -freeholders were extended to members of the trading classes. One -modification, however, had to be made. In the normal case, the -merchant’s means of livelihood were his wares, not his freehold. These -wares, accordingly, were saved to him, not his “contenement” (if he had -one). The traders of many favoured towns, however, had already gained -special privileges in this as in other matters, and these had received a -general confirmation from chapter 13 of the Great Charter. Some boroughs -had anticipated Magna Carta by obtaining in their own special charters -either a definition of the maximum amercement exigible, or in some -cases, by a definition of the amercing body. Thus, John’s Charter to -Dunwich of 29th June, 1200,[588] provides that the burgesses shall only -be amerced by six men from within the borough, and six men from without. -The capital had special privileges: in his Charter to the Londoners, -Henry I. had promised that no citizen _in misericordia pecuniae_ should -pay a higher sum than 100s. (the amount of his _wer_).[589] This was -confirmed in the Charter of Henry II., who declared “that none shall be -adjudged for amercements of money, but according to the law of the city, -which they had in the time of King Henry, my grandfather.”[590] John’s -Charter to London of 17th June, 1199, also specially referred to -this;[591] and the general confirmation of customs contained in chapter -13 of Magna Carta would further strengthen it. In all probability, it -covered trivial offences only (such as placed the offender in the king’s -hands _de misericordia pecuniae_). The present chapter is wider in its -scope, applying to great offences as well as to small ones, and -embracing merchants everywhere, not merely the burgesses of chartered -towns. - ------ - -Footnote 588: - - _Rotuli Chartarum_, 51. - -Footnote 589: - - See _Select Charters_, 108. - -Footnote 590: - - See Birch, _Historical Charters of London_, p. 5. - -Footnote 591: - - _Ibid._, p. 11. - ------ - -(3) _The amercement of the villein._ The early history of villeins as a -class is enveloped in the mists which still surround the debateable -question of the rise of the English manor. Notwithstanding the brilliant -efforts of Mr. Frederic Seebohm[592] to find the origin of villeinage in -the status of the serfs who worked for Roman masters upon British farms -or _villae_ long before the Teutonic immigrations began, an older theory -still holds the field, namely, that the abject villeins of Norman days -were the descendants of the free-born “ceorls” of Anglo-Saxon times. On -this theory—the orthodox one, and rightly so, since it is supported by -the greater weight of evidence—most of England was once cultivated by -free Anglo-Saxon peasant proprietors originally grouped in little -societies each of which formed an isolated village. These free villagers -were known as “ceorls,” to distinguish them from the gentry or nobility -called “eorls,” who enjoyed social consideration but (so it is usually -argued) no unfair political advantages on the score of their noble -blood. The “ceorls” were slowly sinking from their originally free -estate during several centuries prior to 1066: but the process of their -degradation was completed rapidly and roughly by the harsh measures of -the Norman conquerors. The bulk of the once free peasantry were crushed -down into the dependent villeins of the eleventh and twelfth centuries. - ------ - -Footnote 592: - - See _English Village Community_, _passim_. - ------ - -Whichever theory may be the correct one, the position, economic, legal, -and political, of the villeins in the thirteenth century has at the -present day been ascertained with accuracy and certainty. Economically -they were reckoned part of the necessary equipment of the manor of their -lord, whose fields they had to cultivate as a condition of being left in -possession of acres which had once been, in a more real sense, their -own. The services to be exacted by the owner of the manor, at first -vague and undefined, were gradually specified and limited. They varied -from century to century, from district to district, and even from manor -to manor; but at best the life of the villein was, as a contemporary -writer has described it, burdensome and wretched (_graviter et -miserabiliter_). After his manifold obligations were discharged, little -time was left him for the ploughing and reaping of his own small -holding. The normal villein possessed his portion of land, of a virgate -or half virgate in extent (thirty or fifteen scattered acres) under a -tenure known as _villenagium_, sharply distinguished from the -freeholder’s tenures, whether of chivalry, serjeanty, or socage. He was -a dependent dweller on a manor which he dared not quit without his -master’s leave. It is true that he had certain rights of a proprietary -nature in the acres he claimed as his own; yet these were determined, -not by the common law of England, but by “the custom of the manor,” or -virtually at the will of the lord. These rights, such as they were, -could not be pled elsewhere than before the court customary of that -manor over which the lord’s steward presided with powers wide and -undefined. Legally speaking, the villein was a tenant-at-will whom the -lord could eject without the interference of any higher tribunal than -his own. Politically, however, the position of the villein was peculiar. -While allowed to enjoy none of the privileges, he was yet expected to -perform some of the duties, of the freeman. He attended at the shire and -hundred courts, acted on juries, and performed other public functions, -thus suffering still further encroachments on the scanty portion of time -which he might call his own, but preserving for a brighter day some -vague tradition of his earlier liberty. The fact that such public duties -were performed by the villein, lends strong support to those who argue -in favour of his descent from the old “ceorl” who enjoyed all the -rights, as well as performed all the obligations, of the free. Such -duties would never have been required from a race of hereditary slaves; -but it is easy to understand how men originally free might be gradually -robbed of their legal rights, while left to perform legal duties of a -kind so useful to society and to their masters. - -The words of this chapter of Magna Carta undoubtedly extend some measure -of protection to villeins. Two questions, however, may be asked:—What -measure, and from what motive? Answers are called for, because of the -importance attached to this clause by writers who claim for Magna Carta -a popular or democratic basis. One thing is clear: the villeins were -protected from the abuse of only such amercements as John himself might -inflict, not from the amercements of their manorial lords; for the words -used are “_si inciderint in misericordiam nostram_.” A villein in the -king’s mercy shall enjoy the same consideration as the freeholder or the -merchant enjoys in similar plight—his “wainage,” that is his plough with -its accoutrements, including possibly the oxen, being saved to him. What -is the motive of these restrictions? It is usually supposed to have been -clemency, the humane desire not to reduce the poor wretch to absolute -beggary. It is possible, however, to imagine an entirely different -motive; the villein was the property of his lord, and the king must -respect the vested interests of others. That he might do what he pleased -with his own property, his demesne villeins, seems clear from a passage -usually neglected by commentators, namely, chapter 16 of the reissue of -1217. Four important words limiting the restraints on the king’s power -are there introduced—_villanus alterius quam noster_. The king was not -to inflict absolutely crushing amercements on any villeins “_other than -his own_,” thus leaving the villeins on ancient demesne unreservedly in -his power.[593] - ------ - -Footnote 593: - - Thomson, _Magna Charta_, p. 202, seems completely to have - misunderstood this 16th chapter of the reissue of 1217, construing the - four interpolated words in a sense the Latin will not bear, viz.:—“A - villein, _although he belonged to another_.” The view here taken of - the motive for protecting villeins is strengthened by the use of the - peculiar phrase, “_vastum hominum_” in chapter 4 (_q.v._). - ------ - -It must not be thought, however, that the position of the king’s -villeins—“tenants on ancient demesne,” as they were technically -called—was worse than that of the villeins of an ordinary unroyal manor. -On the contrary, it has been clearly shown[594] that the king’s peasants -enjoyed privileges denied to the peasants of other lords. Magna -Carta—that "bulwark of the people’s rights"—thus left the great bulk of -the rural population of England completely unprotected from the tyranny -of their lords in amercements as in other things. The king must not take -so much from any lord’s villeins as to destroy their usefulness as -manorial chattels; that was all.[595] - ------ - -Footnote 594: - - Notably by Professor Vinogradoff in his _Villeinage in England_, - _passim_. - -Footnote 595: - - The wide gulf which separated the villein from the freeman in this - matter of amercements is shown by an entry on the _Pipe Roll_ of 16 - Henry II. (cited Madox, I. 545) _Herbertus Faber debet j marcam pro - falso clamore quem fecit ut liber cum sit rusticus._ A villein might - be heavily amerced for merely claiming to be free. It is peculiarly - difficult to reconcile any theory of the villein’s freedom with the - doctrine of Glanvill, V. c. 5, who denies to everyone who had been - once a villein the right to “wage his law,” even after emancipation, - where any third party’s interests might thereby be prejudiced. - ------ - -(4) _The difference between fines and amercements._ In the thirteenth -century these terms were sharply contrasted. “Amercement” was applied to -such sums only as were imposed in punishment of misdeeds, the -law-breaker amending his fault in this way. He had no option of -refusing, and no voice in fixing the amount assessed upon him. “Fine,” -on the contrary, was used for voluntary offerings made to the king with -the object of procuring some concession in return—to obtain some favour -or to escape some punishment previously decreed. Here the initiative -rested with the individual, who suggested the amount to be paid, and -was, indeed, under no legal obligation to make any offer at all. This -distinction between fines and amercements, absolute as it was in theory, -could readily be obliterated in practice. The spirit of the restriction -placed by this chapter and by the common law upon the king’s prerogative -of inflicting amercements could usually be evaded by calling the sums -exacted “fines.” For example, the Crown might imprison its victims for -an indefinite period, and then graciously allow them to offer large -payments to escape death by fever or starvation in a noisome gaol. The -letter of Magna Carta was in this way strictly observed, since the -prisoner was nominally as free to abstain entirely from offering as was -the king to reject all offers until the figure was sufficient to tempt -his greed. Enormous _fines_ might thus be taken; while royal officials -were strictly forbidden to inflict arbitrary _amercements_. - -With the gradual elimination of the voluntary element the word “fine” -came to bear its modern meaning, while “amercement” dropped out of -ordinary use.[596] - ------ - -Footnote 596: - - Cf. _infra_, c. 55, which supplements this chapter, providing for the - cancellation of all amercements unjustly inflicted in the past, - whereas this chapter seeks to prevent the infliction of new ones in - the future. - ------ - -(5) _Contenement._ This word, which occurs in Glanvill[597] and in -Bracton,[598] and also (in its French form) in the Statute of -Westminster, I.,[599] as well as in Magna Carta, has formed a text for -many laboured and unsatisfactory explanations from the days of Sir -Edward Coke[600] to our own. - ------ - -Footnote 597: - - IX. 8. - -Footnote 598: - - III. folio 116 b. - -Footnote 599: - - 3 Edward I. c. 6. - -Footnote 600: - - _Second Institute_, p. 27. - ------ - -There seems to be no real obscurity, however, since it is clearly a -compound of "tenement"—a word well known as an exact technical term of -feudal conveyancing—and the prefix “con.” A “tenement” is precisely what -a freeman might be expected to have, namely, a freehold estate of his -own. The “con” merely intensifies the meaning, emphasizing the closeness -of the connection between the freeman and his land. Any other tenements -he had might be taken away, without inflicting extreme hardship; but to -take from him his "contenement"—his ancestral lands—would leave him poor -indeed. - -The word occurs, not only in Glanvill and Bracton, but also in several -entries on the Exchequer Rolls of Henry III. and Edward I., collected by -Madox,[601] and by him collated with other entries which throw light on -the way in which a “contenement” might be saved to the man amerced. Thus -in 40 Henry III. the officials of the exchequer, after discussing the -case of an offender who had failed to pay an amercement of 40 marks, -ordered inquiry to be made, “how much he was able to pay the king _per -annum_, saving his own sustenance and that of his wife and children,” an -excerpt which illustrates also the more humane side of exchequer -procedure. In 14 Edward I. again, the officials of that day, when -ferreting out arrears, found that certain poor men of the village of -Doddington had not paid their amercements in full. An inquiry was set on -foot, and the barons of exchequer were ordered to fix the dates at which -the various debtors should discharge their debts (evidently an -arrangement for payment by instalments) “_salvo contenemento suo_.”[602] - ------ - -Footnote 601: - - See II. 208-9. - -Footnote 602: - - See Madox, _Ibid._ - ------ - -These illustrations of the actual procedure of later reigns, in agreeing -so closely with the rules laid down by the Great Charter, show how a -man’s contenement might be saved to him without any loss to the Crown. -Magna Carta apparently desires that time should be granted in which to -pay up debts by degrees. Meanwhile, the amerced man was not forced to -sell such holding (or wares, or wainage) as was necessary to maintain -him with his wife and family. Leniency, in the long run, might prove -best for all concerned, the Crown included. - - - - - CHAPTER TWENTY-ONE. - -Comites et barones non amercientur nisi per pares suos, et non nisi -secundum modum delicti. - - Earls and barons shall not be amerced except through their peers, and - only in accordance with the degree of the offence. - - -_The amercement of earls and barons._ The _barones majores_, as matter -of course, intended to secure for themselves privileges at least equal -with those of the ordinary freeholder. In assessing their amercements, -both the gravity of the offence and their ability to pay (as measured by -their property) would naturally be considered. Magna Carta mentions only -the former criterion—it was, indeed, unnecessary to call the king’s -attention to the fact that more could be taken from their wealth than -from the ordinary freeholder’s comparative poverty. The saving of a -“contenement” to them would also naturally be assumed. One vital -difference, however, was distinctly stated. The amercing body was not to -be a jury of good men of the locality; but a jury of their “peers.”[603] -The barons here asked only what was their undoubted right—to have the -amount of their forfeits determined neither by their feudal inferiors -(freeholders of their own or of other mesne lords) nor yet by Crown -officials, but by magnates of their own position and with interests in -common. This was not an innovation. Mr. Pike[604] has shown how, in -Richard’s reign, barons were not amerced with the common herd: at an -eyre held at Hertford in 1198-9, a list of those amerced was drawn up -and definite sums were entered after each name, with two exceptions, -Gerald de Furnivall and Reginald de Argenton, each of whom was reserved -for special treatment “as a baron.” A local jury had evidently on the -spot assessed the amercements of villeins and ordinary freeholders (in -exact accordance with the rules of chapter 20); but the following entry -was made opposite each of the two barons’ names “to be amerced _at the -Exchequer_ for a disseisin.” The Pipe Roll of John’s first year shows -that this was subsequently done.[605] - ------ - -Footnote 603: - - Cf. _infra_, under c. 39. - -Footnote 604: - - _House of Lords_, 255. - -Footnote 605: - - Cited by Pike, _Ibid._ - ------ - -Magna Carta, then, had good precedents for insisting that barons ought -not to be amerced by the justices of eyre in the course of their -circuits; but what exactly did it mean by demanding amercement "by their -peers"? Did this merely mean that a few peers, a few Crown tenants, -should be present at the exchequer when they were amerced; or was it a -demand for the assembling, for that purpose, of a full _commune -concilium_ like that defined in chapter 14? - -The Crown, in the following reign, placed its own interpretation on -these words, and succeeded in turning into a special disadvantage what -the barons had insisted on as a privilege. Bracton[606] repeats this -chapter verbatim, but adds what seems to be an official gloss, -qualifying it by these words: “_et hoc per barones de scaccario vel -coram ipso rege_.” Barons, under this interpretation of Magna Carta, had -their amercements assessed neither by the whole body of “their peers” in -a full council, nor yet by a select jury of those peers empannelled in -the exchequer for that purpose, but by royal officials, the barons of -exchequer, or the justices of King’s Bench. Thus the words of the -Charter were perverted by the ingenuity of the Crown lawyers to -authorize precisely what they had been originally intended to -forbid.[607] - ------ - -Footnote 606: - - III., folio 116 b. - -Footnote 607: - - Pike, _House of Lords_, 256–7, shows how barons were assessed - sometimes—(_a_) before the barons of exchequer; or (_b_) before the - full King’s Council; or (_c_) at a later date, even before the - justices of Common Pleas. They were never assessed, however, before - the justices on circuit. Is it possible that one reason why the name - _Barones Scaccarii_ was retained as the official title of the four - justices who presided over the Court of Exchequer was the Crown’s wish - to preserve the fiction that these official “_barones_” were really - peers of the holders of "baronies"? - ------ - -In the fourteenth century several cases are recorded, in the course of -which defaulters, in the hope of escaping with smaller payments, -protested against being reckoned as barons. For example, a certain -Thomas de Furnivall in the nineteenth year of Edward II. complained that -he had been amerced as a baron “to his great damage, and against the law -and custom of the realm,” whereas he really held nothing by barony. The -king directed the Treasurer and Barons of the Exchequer “that if it -appeared to them that Thomas was not a baron, nor did hold his land by -barony, then they should discharge him of the said imposed amercement; -provided that Thomas should be amerced according to the tenor of the -great Charter of Liberties,”[608] that is to say, as a simple freeholder -according to the provisions of chapter 20. It is clear that Thomas de -Furnivall was confident that a local jury would amerce him at a lower -figure than that fixed by the exchequer barons. A few years earlier the -Abbot of Croyland had made a similar plea, but without success.[609] - ------ - -Footnote 608: - - Madox, I. 535-8. - -Footnote 609: - - See Madox, _Ibid._, and also Pike, _House of Lords_, 257. - ------ - -At a later date barons and earls were successful in securing by another -expedient some measure of immunity from excessive exactions. They had -established, prior to the first year of Henry VI., a recognized scale of -amercements with which the Crown was expected, in ordinary -circumstances, to content itself.[610] In the reign of Edward IV. a duke -was normally amerced at £10, and an earl or a bishop at 100s.[611] - ------ - -Footnote 610: - - See Pike, _Ibid._ - -Footnote 611: - - Madox, _Baronia Anglica_, 106, seems to view these sums as fixing a - minimum, not a maximum. “If a baron was to be amerced for a small - trespass, his amercement was wont to be 100s. at the least; he might - be amerced at more, not at less. This, I think, was the meaning of the - term _amerciater ut baro_.” He adds that a commoner for a similar - trespass would get off with 10s., 20s., or 40s. - ------ - - - - - CHAPTER TWENTY-TWO. - -Nullus clericus amercietur de laico tenemento suo, nisi secundum modum -aliorum predictorum, et non secundum quantitatem beneficii sui -ecclesiastici. - - A clerk shall not be amerced in respect of his lay holding except - after the manner of the others aforesaid; further, he shall not be - amerced in accordance with the extent of his church benefice. - - -_Amercement of the clergy._ The churchman was to receive the same -favourable treatment as the layman in all respects, and to enjoy one -additional privilege. In proportioning the amercement to the extent of -his wealth, no account was to be taken of the value of his “church -benefice.” A sharp distinction is here drawn between _laicum tenementum_ -(or, as the 10th of the Articles of the Barons expressed it, _laicum -feodum_) and _beneficium ecclesiasticum_. This antithesis between “lay -fee” and "alms"—that is, between lands held by barony, knight’s service, -or any other secular tenure on the one hand, and lands held by -frankalmoin on the other—was a familiar one in the Middle Ages.[612] - ------ - -Footnote 612: - - See _supra_ 66-70 and cf. Constitutions of Clarendon (c. 9), which - distinguish _tenementum pertinens ad eleemosinam_ from _ad laicum - feudum_. - ------ - -Only the former was to be reckoned in fixing the defaulting clerk’s -amercement. This would leave the bishop or abbot exposed to a higher -payment proportionate to his barony, while exempting the parish priest -from any assessment on account of his rectory and glebe. It would almost -seem that in the normal case the incumbent with no wealth but the -produce and rents of his benefice would thus escape from amercement -altogether; yet, if he had no lay tenement, he might still have -chattels, or might at least pay instalments from the annual increase of -his crops. This exemption in favour of those who held lands in “alms” -may have proceeded from several possible motives. Frankalmoin enjoyed -many privileges, including, in the reign of Henry II., complete immunity -from the jurisdiction of all secular courts.[613] Perhaps the Exchequer -did not dare to levy contributions upon such lands. In any view, it -would have been manifestly unjust to treat the clerical incumbent as -though he were the owner in fee simple of the church’s patrimony. - ------ - -Footnote 613: - - See Constitutions of Clarendon, _Ibid._ The Crown soon withdrew this - immunity. - ------ - -The word “clerk” was a wide one, including not only the ordinary parish -priests (whether rectors or vicars) with the deacons and those who had -taken minor orders, but also the monks and canons regular (whose vows of -poverty, however, left no loophole for the legal retention by them of -private property which could require protection). It included also the -higher clergy, great prelates, bishops and abbots, whose status was, -however, complicated by their ownership of Crown lands. Their character -of “baron” was often more prominent in constitutional questions than -that of “clerk in holy orders.” Their treatment in the matter of -amercements is a case in point.[614] There could have been no doubt from -the first that a bishop “in mercy” must submit to have his barony taken -into consideration in fixing his amercement. It would almost seem that -the great prelates were not intended to benefit in any way from this -exemption. Such is the suggestion conveyed by a slight alteration -effected in the Charter of 1217, which substitutes for the wider -“_clericus_” of the text the more restricted expression "_ecclesiastica -persona_"—words which in the thirteenth century denoted the parish -clergy, and were used much as is the word “parson” in colloquial speech -at the present day. - ------ - -Footnote 614: - - Cf. Pike, _House of Lords_, 254. - ------ - -A certain looseness in the arrangement of the Latin words of this -chapter, as it originally stood in 1215, seems to have suggested the -need for improvement. Alterations, apparently of a verbal nature, were -made with some evidences of care in Henry’s reissues. The “_de laico -tenemento_” of 1215 was omitted altogether in 1216; but a reference to -the “lay fees” of the clergy was reintroduced in 1217, subject to a -complete reconstruction of the sentence to make it read smoothly, and so -avoid the possibility of misconception.[615] - ------ - -Footnote 615: - - In its final form it reads: “_Nulla ecclesiastica persona amercietur - secundum quantitatem beneficii sui ecclesiastici, sed secundum - tenementum suum et secundum quantitatem delicti._” Dr. Stubbs, _Sel. - Charters_ 345, by a curious oversight, reads for “_tenementum_” the - compound “_contenementum_,” for which there seems to be no authority. - ------ - - - - - CHAPTER TWENTY-THREE. - -Nec villa nec homo distringatur facere pontes ad riparias, nisi qui ab -antiquo et de jure facere debent. - - No community or individual[616] shall be compelled to make bridges at - river banks, except those who from of old were legally bound to do so. - - -The object of this chapter is obvious; to compel the king to desist -from his practice of illegally increasing the extent of an -obligation—admitted as perfectly legal within the limits defined by -ancient usage—the obligation to keep in good repair all existing -bridges over rivers. John might continue to exact what his ancestors -had exacted; but nothing more. So much lies on the surface of the -Charter, which explains, however, neither the origin of the obligation -nor the reasons which made John keen to enforce it. - -I. _Origin of the Obligation to make Bridges._ The Norman kings seem to -have based their claim to compel their subjects to maintain such bridges -as were necessary, upon an ancient threefold obligation,[616] (known as -the _trinoda necessitas_) incumbent on all freemen during the -Anglo-Saxon period. Three duties were[617] required of all the men of -England in the interests of the commonweal: attendance on the fyrd or -local militia; the making of roads, so necessary for military purposes; -and the repairing of bridges and fortifications. Gradually, as feudal -tendencies prevailed, the obligation to construct bridges ceased to be a -personal burden upon all freemen, and became a territorial burden -attached to certain manors or freeholders. In other words, it was made a -part of the services incidental to the feudal tenure of particular -estates. The present chapter, in forbidding the illegal extension of -this burden to communities or individuals other than those who rendered -it as part of the services due for their lands, seems to be only a -particular application of the general principle enunciated in chapter -16. The evil complained of, however, required special treatment because -of the prominence into which it had been forced by John, who had abused -powers vested in his ancestors for national purposes, in order to -further his own selfish pleasures, in a manner so well known to his -contemporaries as not to require specification in Magna Carta. - ------ - ------ - -Footnote 616: - - The word “_villa_,” used at first as synonymous with “manor,” came to - be freely applied not only to all villages, but also to chartered - towns. Even London was described as a _villa_ in formal writs. - “_Homo_,” though often loosely used, was the word naturally applied to - a feudal tenant. The version given by Coke (_Second Institute_, p. 30) - reads “_liber homo_,” which is also the reading of one MS. of the - _Inspeximus_ of 1297 (25 Edward I.). See _Statutes of the Realm_, I. - 114. - -Footnote 617: - - See _Rot. Claus._, 19 Henry III., cited by Moore, _History and Law of - Fisheries_, p. 8. - ------ - -II. _The King’s interest in the Repair of Bridges._ John’s motives for -making an oppressive use of this prerogative must be sought in a -somewhat unexpected quarter, in the king’s rights of falconry, and in -his frequent need for ready means of crossing rivers in pursuit of his -valuable birds of prey. Whenever John proposed to ride a-fowling, with -his hawk upon his wrist, he issued letters compelling the whole -country-side to bestir themselves in the repair of bridges in every -district which his capricious pleasure might lead him to visit. Several -such writs of the reign of Henry III. are still extant. The exact words -of these vary somewhat, but a comparison of their terms leaves no room -for doubt either as to the nature of the commands they conveyed or the -reasons for issuing them. Addressed to the sheriffs of such counties as -the king was likely to visit, at a convenient interval beforehand, these -letters gave instructions that all necessary steps should be taken in -preparation for the king’s hawking. The writs contained two commands, an -order for the repair of bridges, and a prohibition against the taking of -birds before the king had enjoyed his sport. Both points are well -brought out in a Letter Close of Henry III., dated 26th December, 1234, -which directed "all bridges on the rivers Avon, Test, and Itchen to be -repaired as was wont in the time of King John, so that when the lord -King may come to these parts, free transit shall lie open to him for -“riviating” (_ad riviandum_) upon the said rivers." The writ then -proceeded to command the sheriff to issue a general prohibition against -any one attempting “to riviate” along the river banks, previous to the -coming of the king (“_ne aliquis riviare praesumat per riparias illas -antequam rex illic venerit_”).[618] - ------ - -Footnote 618: - - See _Rot. Claus._ 19 Henry III., cited in Moore, _History and Law of - Fisheries_, p. 8. - ------ - -The Latin verb, for which “to riviate” has been coined as an English -equivalent, has long been the subject of misconception; but conclusive -evidence has recently been adduced to prove that it referred to the -medieval sport of fowling, that is to the taking of wild birds in sport -by means of hawks and falcons.[619] - ------ - -Footnote 619: - - See Moore, _Ibid._, 8–16. Two links in the chain of evidence are - worthy of emphasis:—(_a_) Writs of 13th November and 1st December, - 1234, order repair of bridges for the transit of the king “along with - his birds” (_cum avibus suis_). (_b_) A writ of 28th October, 1283, - gives _aves capere_ as the equivalent of _riviare_. This writ contains - a licence to the Earl of Hereford “during the present winter season to - _riviate_ and to take river-fowl of this nature (_riviare et aves - ripariarum hujusmodi capere_) throughout the rivers Lowe and Frome - which are in defence (_in defenso_).” - ------ - -These writs prove that the Crown claimed and exercised a monopoly of, or -at least a preferential right to, this form of sport along the banks of -certain rivers; and these “preserved” rivers were accordingly said to be -placed “in defence” (_in defenso_), a phrase which occurs in many of the -writs referred to, as well as in a later chapter of Magna Carta.[620] - ------ - -Footnote 620: - - _I.e._ c. 47 (_q.v._). Any district or object over which the king or a - private individual had sole rights of any kind to the exclusion of the - public might apparently be said to be placed _in defenso_ in regard to - the object of such rights. In this case, the word “riviation” makes - the object plain. - -Two distinct hardships were thus imposed on the nation by the king’s -exercise of his rights of falconry, one negative and the other positive. -In the interval between the king’s intimation and his arrival at the -indicated rivers, the sport of all other people was interfered with, -while the obligation to reconstruct otherwise useless bridges was a more -material burden on every village and individual exposed to it. A wise -king would be careful to use such rights so as to inflict on his -subjects a minimum of hardship. John, however, knew no moderation, -placing “in defence” not merely a few banks at a time, but many rivers -indiscriminately, including those which had never been so treated in his -father’s day, and demanding that all bridges everywhere should be -repaired, with the object, not so much of indulging a genuine love of -sport, as of inflicting heavy amercements on those who neglected prompt -obedience to his commands. Great consternation was aroused by John’s -action at Bristol in 1209 when he prohibited the taking of birds -throughout the entire realm of England.[621] - ------ - -Footnote 621: - - R. Wendover, II. 49 (R.S.), “_Ibi capturam avium per totam Angliam - interdixit._” - ------ - -Both of these grievances, thus augmented by the policy of King John, -were redressed by Magna Carta, though in different clauses. In the -present chapter John promised not to impose the burden of repairing -bridges on those from whom it was not legally due.[622] Chapter 47, in -which he agreed to withdraw his interdict from all rivers which he had -placed “in defence” during his own reign, and also to disafforest all -forests of his own creation, was entirely omitted in the Charter of -1216;[623] but in 1217 it reappeared in a new position and expressed in -different words. The provision of the original chapter 47, relating to -forests, was relegated to the _Carta de Foresta_, then granted for the -first time, and the other part of that chapter, relating to falconry, -was naturally enough joined to a clause which redressed another -grievance growing from the same root. Chapter 19 of Henry III.’s -Charter, in its final form, repeats word for word the terms of the -present chapter of John, while in chapter 20 Henry proceeds to declare -“that no river shall in future be placed in defence except such as were -in defence in the time of King Henry, our grandfather, throughout the -same places and during the same periods as they were wont in his day.” - ------ - -Footnote 622: - - Article 11 of the Barons had demanded that no _villa_ should be - _amerced_ for failure to make such illegal repairs, thus illustrating - at once John’s policy, and the point of connection between this - provision and the immediately preceding chapters which dealt with - amercements. - -Footnote 623: - - It was, however, included among the subjects reserved for further - consideration in “the respiting clause” (c. 42 of 1216) under the - words “_de ripariis et earum custodibus_.” Cf. _supra_, 169. - ------ - -This express prohibition seems to have prevented the Crown from -extending its prerogatives any further in this direction. Yet Henry III. -had ample opportunities of harassing his subjects by an inconsiderate -use of the rights still left to him. By issuing wholesale orders -affecting every preserved river which he had an admitted right to put -“in defence,” he might inflict widespread and wanton hardships. In many -cases dubiety existed on the question of fact as to what banks had -actually been “defended” by Henry II., and a vague general command which -named no special rivers left in cruel uncertainty the district to be -visited. Henry III., accordingly, either yielding to pressure or in -return for grants of money, made important concessions. After the year -1241, he invariably specified the particular river along whose banks he -intended to sport, and sometimes even announced the exact date at which -he expected to arrive. As no writs appear subsequent to 1247, it is -possible that he was induced to abstain altogether from the exercise of -a right which inflicted hardships on the people out of all proportion to -the benefits conferred on the king.[624] - ------ - -Footnote 624: - - Moore, _Ibid._, 9. - ------ - -The Crown, however, had not renounced its prerogatives, and several -writs still exist to show that Edward I. occasionally allowed his great -nobles to share in the royal sport. Licences to this effect were granted -in 1283 to the Earl of Hereford and to Reginald fitz Peter, and in the -following year to the Earl of Lincoln. On 6th October, 1373, Edward III. -by his writ commanded the sheriff of Oxfordshire to declare that all -bridges should be repaired and all fords marked out with stakes for the -crossing of the king “with his falcons” during the approaching winter -season.[625] - ------ - -Footnote 625: - - Moore, _Ibid._, 12. - ------ - -III. _Erroneous Interpretations._ There is nothing astonishing in the -fact that a pastime so passionately followed as falconry was in the -Middle Ages, should have left its traces on two chapters of Magna Carta, -the full import of which has not hitherto been appreciated by -commentators, partly from failure to bring both of them together, but -chiefly because of the too precipitate assumption that the words _ad -riviandum_ and _in defenso_, occurring in writs and charters, referred -to _fishing_ rather than to fowling.[626] - ------ - -Footnote 626: - - The _Mirror of Justices_ is cited as first suggesting this. See Moore, - _Ibid._, 12–16, where the gradual development of the error is traced. - Coke, _Second Institute_, 30, was misled by the _Mirror_, and he has - in turn misled others. - ------ - -It has been confidently inferred that the framers of Magna Carta when -forbidding additional banks to be put “in defence,” equally as when -demanding the removal of “weirs” from non-tidal waters,[627] were -influenced by a desire to preserve public rights of fishing against -encroachment by the king or by private owners. In either case the -motives were entirely different. In the Middle Ages, fishing was a means -of procuring food, not a form of sport: to depict John and his -action-loving courtiers as exponents of the gentle art of Isaac Walton -is a ridiculous anachronism. - ------ - -Footnote 627: - - Cf. _infra_, under c. 33. - ------ - -It is quite true that the value of fish as an article of diet led in -time to legislation directed primarily to their protection; but -apparently no statute with such a motive was passed previous to -1285.[628] It is further true that in the reign of Edward I. it became -usual to describe rivers, over which exclusive rights of fishing had -been established by riparian owners, as being _in defenso_;[629] but -rivers might be “preserved” for more purposes than one. From Edward’s -reign onwards, however, rights of fishing steadily became more valuable, -while falconry was superseded by other pastimes. Accordingly a new -meaning was sought for provisions of Magna Carta whose original motive -had been forgotten. So early as the year 1283 the words of a petition to -the king in Parliament show that “fishing” had been substituted for -“hawking” in interpreting the prohibition referred to in chapter 47 of -John’s Charter. In that year the men of York complained that Earl -Richard had interfered with their rights of fishing by placing _in -defenso_ the rivers Ouse and Yore, a proceeding they declared to be -“against the tenor of Magna Carta.”[630] This error, the first -appearance of which thus dates from 1283, has been accepted for upwards -of five hundred years by all commentators on Magna Carta. The credit for -dispelling it is due to Mr. Stuart A. Moore and Mr. H. S. Moore in their -_History and Law of Fisheries_, published in 1903. - ------ - -Footnote 628: - - This was 13 Edward I., stat. 1, c. 47, cited Moore, _Ibid._, 173. - -Footnote 629: - - _Ibid._, p. 6. - -Footnote 630: - - _Ibid._, p. 16. - ------ - - - - - CHAPTER TWENTY-FOUR. - -Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, -teneant placita corone nostre. - - No sheriff, constable, coroners, or others of our bailiffs, shall hold - pleas of our Crown. - - -The main object of this provision is beyond doubt: men accused of crimes -must be tried before the king’s judges and not by local magistrates of -whatsoever kind. The innocent looked confidently for justice to the -representatives of the central government; while they dreaded the -jurisdiction of the less responsible officials resident in the -county—local tyrants whose harshness had earned them a hearty and -widespread hatred. The sheriffs and castellans thoroughly deserved their -bad reputation; for the records of the age overflow with tales of their -cruelties and illegal oppressions. It ought not to be forgotten, -however, that if this chapter contains a condemnation of the local -administration of justice, it testifies, at the same time, to the -comparative purity of the justice dispensed by the king’s own judges. So -far there is no difficulty; but some differences of opinion exist as to -the exact bearing of this provision on certain points of detail. - -I. _Pleas of the Crown._ All litigations tended to be distinguished into -two kinds, royal pleas and common pleas, according as the interests of -the Crown were or were not specially involved. This classification has -already been discussed in connection with chapter 17, which sought to -regulate the procedure in common pleas. The present chapter concerns -itself only with “pleas of the Crown,” a phrase which had even in 1215 -considerably altered its original meaning. In the eleventh century it -had denoted all royal business, whether specially relating to legal -procedure or not, embracing all matters connected with the king’s -household or his estates, with the collection of his revenue, or the -administration of his justice, civil as well as criminal. Gradually, -however, the usage of the word altered in two respects, contracting in -one direction, while expanding in another. It ceased to be applied to -financial business and even to non-criminal, judicial business; and it -was thereafter reserved for criminal trials held before the king’s -judges. This process of contraction had been nearly completed before the -accession of John. - -Another tendency, however, in an opposite direction had been for some -time in progress; the distinction drawn in early reigns between petty -trespasses, which were left in the province of the sheriff, and grave -offences, which alone were worthy of the king’s attention, was being -slowly obliterated.[631] The royal courts steadily extended the sphere -of their activity over all misdeeds, however trivial, until the whole -realm of criminal law fell under the description of “pleas of the -Crown.” - ------ - -Footnote 631: - - Traces of it may be found as late as the reign of Henry II. See - Glanvill, I. c. 1. - ------ - -In the reign of John this process of expansion was far from complete: -the words then, indeed, embraced grave criminal offences tried in the -king’s courts, but not the numerous petty offences, which were still -disposed of in the sheriffs tourn or elsewhere.[632] - ------ - -Footnote 632: - - The gradual triumph of royal justice over all rivals in the sphere of - criminal law is thus symbolized by the extension of the phrase “pleas - of the Crown,” which can be traced through a series of - documents—_e.g._ (_a_) the laws of Cnut; (_b_) Glanvill, I. cc. I, 2, - and 3; (_c_) the Assizes of Clarendon and Northampton; (_d_) the - ordinance of 1194; and (_e_) the present chapter of Magna Carta. - ------ - -North of the Tweed the same phrase has had a completely different -history: in modern Scots law its connotation is still a narrow one; and -this is a direct result of the slow growth of the Scottish Crown in -authority and jurisdiction, in notable contrast to the rapidity with -which the English Crown attained the zenith of its power. The kings of -Scotland failed to crush their powerful and unruly vassals, and -consequently the pleas of the Scottish Crown, exclusively reserved for -the High Court of Justiciary, formed a meagre list—the four heinous -crimes of murder, robbery, rape, and arson. The feudal courts of the -Scottish nobles long preserved their wide jurisdiction over all other -offences. When the heritable jurisdictions were at last abolished, in -1748, mainly as a consequence of the rebellion of three years -previously, the old distinction, so deeply rooted in Scots law, still -remained. The sheriff court had no cognizance, until late in the -nineteenth century, over the four crimes specially reserved for the -king’s judges.[633] Thus in Scotland the historic phrase “pleas of the -Crown” is, even at the present day, confined to murder, robbery, rape, -and fire-raising, while to an English lawyer it embraces the entire -realm of criminal law. - ------ - -Footnote 633: - - The _Criminal Procedure_ (_Scotland_) Act, 1887 (50 and 51 Victoria, - c. 35) gave him jurisdiction over three of them. - ------ - -II. _Keeping and Trying Criminal Pleas._ The machinery for bringing -criminals to justice, as organized by Henry II., was somewhat elaborate. -For our present purpose, it may be sufficient to emphasize two important -stages in the procedure. An interval had always to elapse between the -commission of a grave crime and the formal trial of the criminal, since -it was necessary to wait for the coming of the itinerant justices, which -only took place at intervals of about seven years. Meanwhile, -preliminary steps must be taken to collect and record evidence of -offences, which might otherwise be lost. The magistrate responsible for -these preliminary steps was said to “keep” the pleas (_custodire -placita_)—that is, to watch them or prevent them from passing out of -mind while waiting the coming of the justices who would formally “hold” -or “try” or “determine” the same pleas (_placitare_ or _habere_ or -_tenere placita_). - -Before the reign of John, not only had the fundamental distinction -between these two stages of procedure been clearly grasped, but the two -functions had been entrusted to two distinct types of royal officials. -The local magistrates of each district “kept” royal pleas, while only -the justices who represented the central government could “hold” them. -The process of differentiation was accelerated towards the close of the -twelfth century in consequence of the jealousy with which the Crown -regarded the increasing independence of the sheriffs. The elaborate -instructions issued in 1194 to the justices whom Archbishop Hubert -Walter was despatching on a more than usually important visitation of -the counties contain two provisions intended to keep the growing -pretensions of the sheriffs within due bounds.[634] - ------ - -Footnote 634: - - See _Forma procedendi in placitis coronae regis_, cc. 20 and 21, cited - in _Sel. Charters_, 260. - ------ - -They were expressly forbidden to act as justices within their own -counties, or, indeed, in any counties in which they had acted as -sheriffs at any time since Richard’s coronation.[635] - ------ - -Footnote 635: - - _Ibid._, c. 21. - ------ - -It is safe to infer that the “trying” of royal pleas was the province -from which in particular the sheriff was thus excluded. Even with regard -to the “keeping” or preliminary stages of such pleas the sheriff was by -no means left in sole command. The justices received instructions[636] -to cause three knights and one clerk to be chosen in each county as -“_custodes placitorum coronae_.” It is possible that these new local -officers, specially entrusted with the duty of “keeping” royal pleas, -were intended rather to co-operate with than to supersede the sheriffs -in this function, but in any view the sheriffs had no longer a monopoly -of authority in their bailiwicks. Magistrates, to be afterwards known as -coroners, were thenceforward associated with them in the administration -of the county.[637] - ------ - -Footnote 636: - - _Ibid._, c. 20. - -Footnote 637: - - The _Forma procedendi_ of 1194 is usually considered the earliest - distinct reference to the office of coroner. Dr. Gross, however - (_History of Office of Coroner_, 1892, and _Select Cases from - Coroners’ Rolls_, 1896), claims to have found traces of their - existence at a much earlier date. Prof. Maitland remains unconvinced - (_Eng. Hist. Rev._, VIII. 758, and Pollock and Maitland, I. 519). - ------ - -The ordinance of 1194 seems to have settled subsequent practice in both -respects. Sheriffs, while still free to punish petty offenders on their -own authority, in their half-yearly tourns or circuits, allowed the -coroners to “keep” royal pleas, and the justices to “try” them. - -Public opinion of the day strongly approved both rules, yet John -condoned and encouraged irregularities, allowing sheriffs to meddle with -pleas of the Crown, even when the coroners were not present to check -their arbitrary methods;[638] and allowing them to give a final judgment -on such pleas, involving, mayhap, loss of life or limb to those found -guilty, without waiting the arrival of the Justices.[639] Such -deviations from the normal course of procedure could be no longer -tolerated. Magna Carta accordingly, in this first of a series of -chapters directed against the misdeeds of sheriffs and other local -magistrates, forbade them to interfere in this province. - ------ - -Footnote 638: - - This is the inference to be drawn from the 14th of the Articles of the - Barons. - -Footnote 639: - - This is the inference to be drawn from c. 24 of Magna Carta. - ------ - -III. _The Intention of Magna Carta._ The barons, in this matter as in so -many others, were merely demanding that the Crown should observe -strictly and impartially the rules which it had laid down for its own -guidance: caprice must give way to law. Sheriffs must not, with or -without the king’s connivance, usurp the functions of coroners; nor must -sheriffs and coroners together usurp those of the king’s justiciars. The -opposition leaders naturally associated these two irregularities -together, and may even have assumed that expressly to abolish the one -implied, with sufficient clearness, an intention to abolish the other -also. Such a supposition would explain a peculiar discrepancy between -the Articles and the Charter, in its final form, which it is otherwise -difficult to account for. While Article 14 demanded redress of one -specific grievance, Magna Carta granted redress of an entirely different -one. The earlier document, neglecting the distinction between “keeping” -and “trying” pleas, simply requires that coroners (whose comparative -popularity is explained by their appointment in the county court) should -always be associated with the sheriff when he meddles in any way with -pleas of the Crown. The Charter is silent on this subject; but forbids -sheriffs and coroners, whether acting separately or together, to “try” -or finally determine pleas of this description. These two provisions are -the complements of each other. Magna Carta would thus seem to be here -incomplete. - -The prohibition against sheriffs trying pleas of the Crown was repeated -in all reissues of the Charter; and, although not perhaps strictly -enforced in Henry’s reign, soon became absolute. Under Edward I. it was -interpreted to mean that no one could determine such pleas unless armed -with a royal commission to that effect;[640] and the commission would -take the form either of gaol delivery, of trailbaston, or of oyer and -terminer.[641] - ------ - -Footnote 640: - - See Coke, _Second Institute_, 30, and authorities there cited. - -Footnote 641: - - For explanation of these terms, see _supra_, c. 18. - ------ - -IV. _An Erroneous View._ Hallam seems to have misunderstood the object -aimed at by this provision. Commenting on the corresponding chapter of -Henry’s Charter of 1225, he declares that the “criminal jurisdiction of -the Sheriff is entirely taken away by Magna Charta, c. 17.”[642] This is -a complete mistake: both before and after the granting of the Charter, -the sheriff exercised criminal jurisdiction, and that of two distinct -kinds. Along with the coroners, he conducted preliminary enquiries even -into pleas of the Crown; while in his tourn (which was specially -authorized to be held twice a year by chapter 42 of the very Charter -quoted by Hallam) he was completely responsible for every stage of -procedure in regard to trivial offences. He heard indictments and then -tried and punished petty offenders in a summary manner.[643] Several -statutes of later reigns confirmed, even while regulating, the authority -of the sheriff to take indictments at his tourns,[644] until this -jurisdiction was transferred, by an act of the fifteenth century, to the -justices of peace assembled in Quarter Sessions.[645] - ------ - -Footnote 642: - - See _Middle Ages_, II. 482, n. - -Footnote 643: - - Cf. Stephen, _History of Criminal Law_, I. 83. The mistake made by - Hallam and others may have been in part the result of their neglecting - the important modification undergone by the phrase “pleas of the - Crown” between 1215, when it was still confined to a few specific - crimes of special gravity, and the present day, when it has become - synonymous with the whole field of criminal law. - -Footnote 644: - - _E.g._ 13 Edward I. c. 13, and 1 Edward III., stat. 2, c. 17. - -Footnote 645: - - 1 Edward IV. c. 2. - ------ - -All that Magna Carta did was to insist that no sheriff or local -magistrate should encroach on the province reserved for the royal -justices, namely the final “trying” of such grave crimes as had now come -to be recognized as “pleas of the Crown.”[646] The Charter did not even -attempt to define what these were, leaving the boundary between great -and small offences to be settled by use and wont. In all this, it was -simply declaratory of existing practice, making no attempt to draw the -line in a new place.[647] - ------ - -Footnote 646: - - Contrast Coke, _Second Institute_, 32, who seems to suggest that one - effect of Magna Carta was to take from the sheriff a jurisdiction over - _thefts_ previously enjoyed by him. - -Footnote 647: - - Dr. Stubbs, _Const. Hist._, I. 650, thinks that the proposals of the - Articles and Charter indicated a tendency towards judicial absolutism, - only curbed by the growth of trial by jury. Yet the barons in - providing against the sheriff’s irregularities had certainly no - intention to enhance the royal power. The attitude of the insurgents - in 1215 suggests rather that the sheriffs had now become instruments - of royal absolutism to a greater extent than the king’s justices - themselves. The problem of local government had thus assumed a new - form (cf. _supra_, p. 20). Edward I., indeed, deftly turned this - chapter to his own advantage, arguing that it cancelled all private - jurisdiction over criminal pleas previously claimed by boroughs or - individuals. See Coke, _Second Institute_, 31, and cases there cited. - ------ - -V. _Local Magistrates under John._ The urgent need of preventing the -petty tyrants who controlled the administration of the various districts -from exercising jurisdiction over the lives and limbs of freemen can be -abundantly illustrated from the details furnished by contemporary -records of the ingenious and cruel oppressions they constantly resorted -to. Ineffectual attempts had indeed been made more than once to restrain -their evil practices, as in August, 1213, when directions were issued -from the Council of St. Alban’s commanding the sheriffs, foresters, and -others, to abstain from unjust dealing,[648] and, again, some two months -later, when John, at the instance of Nicholas of Tusculum, the papal -legate, promised to restrain their violence and illegal exactions.[649] -Little or nothing, however, was effected in the way of reform; and Magna -Carta, in addition to condemning certain specified evils, contained two -general provisions, namely, chapter 45, which indicated what type of men -should be appointed as Crown officials, and the present chapter, which -forbade local magistrates to encroach on the province of the king’s -justices. These local magistrates are comprehensively described under -four different names.[650] - ------ - -Footnote 648: - - See _supra_, p. 34. - -Footnote 649: - - See W. Coventry, II. 214-5. - -Footnote 650: - - Abuses by sheriffs and other bailiffs continued to be rife after 1215 - as before it. Many later statutes afford graphic illustrations of the - oppressive conduct they sought to control. In 1275 Edward found it - necessary to provide “that the sheriffs from henceforth shall not - lodge with any person, with more than five or six horses; and that - they shall not grieve religious men nor others, by often coming and - lodging, neither at their houses nor at their manors.” See Statute of - Westminster, c. 1, confirmed by 28 Edward I., stat. 3, c. 13. - -(1) _The sheriff._ No royal officer was better or more justly hated than -the sheriff. The chapter under discussion affords strong evidence alike -of his importance and of the jealousy with which his power was viewed. -The very briefest sketch of the origin and growth of the office is all -that is here possible. Long before the Conquest, in each shire of -England, the interests, financial and otherwise, of the kings of the -royal house of Wessex had been entrusted to an agent or man of business -of their own appointing, known as a _scir-gerefa_ (or shire-reeve). -These officers were continued by the Norman monarchs with increased -powers under the new name of _vice comites_.[651] It is an illustration -of the tenacity of the Anglo-Saxon customs and names that this Latin -title never took root, whereas the old title of sheriff continues to the -present day. - ------ - -Footnote 651: - - Cf. _supra_, pp. 17-20. - ------ - -It is true that in England during the Anglo-Saxon period the chief power -over each shire or group of shires had been shared among three -officers—the bishop, the earl, and the sheriff. The bishop, by the -natural differentiation of functions, soon confined his labours to the -spiritual affairs of his diocese; while the deliberate policy of the -Conqueror and his successors relegated the earl to a position of dignity -altogether severed from the possession of real power. Thus the sheriff -was left without a rival within his shire. For a period of at least one -hundred years after the Norman Conquest he wielded an excessive local -authority as the sole tyrant of the county. He was not indeed -irresponsible, but it was difficult for his victims to obtain the ear of -the distant king, who alone was strong enough to punish him. The zenith -of the sheriff’s power, however, was passed in the twelfth century, and -before its close changes had been introduced with the view of checking -his abuses. Henry II. frequently punished his sheriffs for their -misdeeds, and removed them from office. - -It has already been explained how in 1194 the sheriff’s powers were -further restricted, while new officers were appointed in each county to -share the authority still left to him. To the very next year (1195) is -usually traced the origin of the justices of the peace, who gradually -took over the chief duties of the sheriff until they had practically -superseded him as the ruling power in the county. In Tudor days a new -rival appeared in the Lord Lieutenant, then first appointed in each -shire to represent the Crown in its military capacity, and particularly -to take over command of the militia of the county. The fall of the -sheriff from his former high estate was thus gradual, although finally -most complete. From presiding, as he did in his golden age, over all the -business of the district—financial, administrative, military, and -judicial—the sheriff has become, in England at the present day, a mere -honorary figure-head of the county executive. A high sheriff is still -chosen annually by King Edward for each county by picking at random one -name out of a list of three leading land-owners presented to him for -that purpose by the judges. The gentleman on whom this sometimes -unwelcome dignity is thrust is still nominally responsible during his -year of office for the execution of all writs of the superior Courts -within his county, for returning the names of those elected to serve in -the House of Commons, and for many other purposes; but his -responsibility is chiefly theoretical. All the real duties of his office -are now performed in practice by subordinates. What really remains to -him is an empty and expensive honour, usually shunned rather than -courted. In Scotland and America the sheriff also exists at the present -day, but his position and functions have in these countries developed in -very different directions. In Scotland, in opposition to what has -happened in England and America, the sheriff has remained emphatically a -judicial officer, the judge of an inferior court, namely, the local -court of his shire, known as “the Sheriff Court.” He has thus retained -intact his judicial functions, to which such nominal administrative -duties as still remain to him are entirely subordinate. In the United -States of America, on the contrary, the sheriff is a purely executive -official, possessing perhaps more real power, but notably less honour -and social distinction than fall to the lot of the English high sheriff. -The duties of his office are sometimes performed by him in person; he -may even set out at the head of the _posse comitatus_ in pursuit of -criminals. Three completely different offices have thus sprung from the -same constitutional root, and all three are still known by one name in -England, Scotland, and America respectively. - -(2) _The constable._ Portions of certain counties were exempted, -partially or entirely, from the sheriff’s bailiwick, and placed under -the authority of specially appointed magistrates. Thus districts -afforested were administered by forest wardens assisted by verderers who -excluded the sheriffs and coroners; while royal fortresses, together -with the land immediately surrounding them, were under the sole command -of officers known indifferently as castellans or constables.[652] The -offices of warden of a particular forest and warden of an adjacent royal -castle were frequently conferred on the same individual. Indeed, chapter -16 of the Forest Charter of Henry III. seems to use the term -“castellans” as the recognized name of forest wardens, whom it forbids -to hold “pleas of the forest,” although they may attach or “keep” them -(with the co-operation of the verderers), and present them for trial -before the king’s emissaries when next sent to hold a forest eyre—thus -offering a complete parallel between procedure at “forest pleas” and -that prescribed by the present chapter for ordinary pleas of the -Crown.[653] - ------ - -Footnote 652: - - These localities were completely independent of the ordinary executive - authorities of the county; in addition, partial exemption from the - sheriff’s control was enjoyed by (_a_) chartered boroughs and (_b_) - holders of franchises. - -Footnote 653: - - Cf. _infra_, c. 48. - ------ - -The name constable is an ambiguous one, since it has at different -periods of history been applied to officers of extremely different -types. The king’s High Constable, a descendant of the horse-thegn of the -Anglo-Saxon kings, was originally that member of the royal household who -was specially responsible for the king’s stables. At a later date, he -shared with the Earl Marshal the duties of Commander-in-chief of the -king’s armies. The name of constable was also used in a wider sense to -designate other and subordinate royal ministers. It came to be applied -to commanders of small bodies of troops, whether in castles or -elsewhere. At a later date the word lost its warlike associations, and -was used in connection with the duties of watch and ward. A constable -was a person specially entrusted with enforcing order in his own -locality. Thus each hundred had its high constable and each village its -petty constable in the fourteenth and fifteenth centuries.[654] These -various officials were thus, at different dates, all designated by a -name usually, at the present day, confined to ordinary members of the -police force. - ------ - -Footnote 654: - - See H. B. Simpson in _English Historical Review_, X. 625, and - authorities there cited. - ------ - -The word as used in Magna Carta had not yet lost its military character, -but denoted the castellan who commanded the troops which garrisoned a -royal castle.[655] Such an office was one of great trust; and -correspondingly wide powers were conferred upon its holder. The warden -of a castle held an important military command, and acted as gaoler of -the prisoners confided to the safe-keeping of his dungeons. He had -authority, under certain ill-defined restrictions, to take whatever he -thought necessary for provisioning the garrison—a privilege, the -exercise of which frequently led to abuses, guarded against by chapters -28 and 29 of Magna Carta, where they are discussed under the head of -purveyance. He had also, to a limited extent, judicial authority. Not -only did he try pleas for small debts to which Jews were parties, but he -enjoyed a jurisdiction over all petty offences committed within the -precincts of the castle, analogous to that of the sheriff within the -rest of the county. This power of trying and punishing misdemeanours was -not taken away by the Great Charter, and was confirmed by implication in -1300 by a statute which directed that the constable of Dover Castle -should not hold within the castle gate “foreign” pleas of the county -which did not affect “the guard of the castle.”[656] It is not known at -what date the judicial powers of constables fell into disuse; but they -still acted as gaolers at a much later period. In the reign of Henry IV. -complaint was made that constables of castles were appointed justices of -the peace, and imprisoned in one capacity the victims whom they had -unjustly condemned in another. This practice was put down by statute in -1403.[657] - ------ - -Footnote 655: - - The evidence collected by Coke, _Second Institute_, 31, conclusively - proves the identity of these two offices. See also Round, _Ancient - Charters_ No. 55, where Richard I. in 1159 speaks of “_constabularia - castelli Lincolniae_.” - -Footnote 656: - - See _Articuli super cartas_, 28 Edward I. c. 7. - -Footnote 657: - - See 5 Henry IV. c. 10. Coke, _Second Institute_, 30, relates, as an - indication of the authority and pretensions of these constables, that - they had seals of their own “with their portraiture on horseback.” - ------ - -It would seem that at an earlier period the constable sometimes acted as -a deputy-sheriff. Chapter 12 of the Assize of Northampton provided that -when the sheriff was absent the nearest _castellanus_ might take his -place in dealing with a thief who had been arrested. His interference -outside his own precincts must, however, have been regarded with great -jealousy, and the coroners, after their appointment in 1194, would -naturally act as substitutes during the sheriff’s absence. - -(3) _The coroners._ The coroners of each county, after their institution -in 1194, seem to have shared with the sheriff most of the powers of -which the latter had previously enjoyed a monopoly. The nature of their -duties is explained by the oath of office sworn in the same words for -many centuries, “_ad custodienda ea quae pertinent ad coronam_.” Their -duty was to guard royal interests generally; and their “keeping” of -royal pleas was merely one aspect of this wider function. Besides -“attaching” those suspected of crimes—that is, receiving formal -accusations and taking such sureties as might be necessary, it was their -duty to make all such preliminary investigations as might throw light on -the case when the formal trial was afterwards held; they had, for -example, to examine the size and nature of the victim’s wounds in a -charge of mayhem.[658] They were required, in particular, to keep a -watchful eye on all royal property, being responsible for the -safe-keeping of deodands, wrecks, and treasure trove. They had also to -appraise the value of all chattels of criminals forfeited to the king. -When felons took refuge in sanctuary, it was the coroner who arranged -for their leaving the country on forfeiting all that they had. They also -kept a record of those who had been outlawed, and received “appeals” or -private accusations of criminal charges.[659] - ------ - -Footnote 658: - - See Bracton, f. 122 b. - -Footnote 659: - - In 1197, Richard’s Assize of Measures appointed six _custodientes_ in - each county and town. These were _coroners_ over a limited class of - offences, viz., the use of false weights and measures. Cf. _infra_, - under c. 35. - ------ - -Magna Carta forbade the coroner to determine the pleas of the Crown; -but, even after 1215, he sometimes did justice upon felons caught -red-handed, whose guilt was self-evident without trial. An act of Edward -I.[660] accurately defined his duties, empowering him to attach pleas of -the Crown and to present criminals to the justices for trial, but -forbidding him to proceed further alone. - ------ - -Footnote 660: - - Statute of Westminster, I. c. 10. - ------ - -The coroner’s functions, originally so wide and varied, have been -gradually narrowed down, until now there is practically only one duty -commonly associated with his office, namely, the holding of an inquest -on a dead body where there are suspicious circumstances.[661] In -addition to this, however, he is still responsible for treasure-trove or -valuables found buried in the ground, and he is also competent to act -generally as the substitute of the sheriff in case of the latter’s -illness or absence during his year of office. - ------ - -Footnote 661: - - Cf. Coke, _Second Institute_, 31, “In case when any man come to - violent or untimely death, _super visum corporis_.” - ------ - -(4) _The bailiffs._ The mention by name of three classes of local -officers is supplemented by the addition of an indefinite word -sufficiently wide to cover all grades of Crown officials. The term -“bailiff” may be correctly applied to every individual to whom authority -of any sort has been delegated by another. It would, in the present -instance, include the assistants of sheriffs and constables, the men who -actually served writs, or distrained the goods of debtors; and also -generally all local officials of every description holding authority -directly or indirectly from the Crown. The district over which his -office extended was called his “bailiwick,” a term often applied to the -county considered as the sphere of the sheriff’s labours. - - - - - CHAPTER TWENTY-FIVE. - -Omnes comitatus, hundrede, wapentakii, et trethingic, sint ad antiquas -firmas absque ullo incremento, exceptis dominicis maneriis nostris. - - All counties, hundreds, wapentakes, and trithings (except our demesne - manors) shall remain at the old rents, and without any additional - payment. - - -This provision also was directed against the sheriffs, and shows a -praiseworthy determination to get to the root of the disease, instead of -merely attacking the symptoms. The rents at which the counties (or parts -of them) were farmed out to the sheriffs must no longer be arbitrarily -raised, but were to remain at the old figures which had become -stereotyped from long usage. To understand how such increases would -injuriously affect the inhabitants of the county, some explanation is -necessary. Centuries before the Norman Conquest, the long process had -been already completed by which England had been gradually mapped out -into shires on lines substantially the same as those which still exist. -Each county had been further subdivided into smaller districts known as -“hundreds” in the south, and as “wapentakes” in the Danish districts of -the north; while intermediate divisions existed, exceptionally, in some -of the specially large counties such as York and Lincoln, each of which -had three “trithings” or ridings. - -In commenting upon chapter 24, it has been already explained how the -Anglo-Saxon kings entrusted their interests in each shire to an officer -called a sheriff, and how a similar officer under the Norman kings -became practically the chief magistrate and local judge in the county. -His financial duties, however, long remained the most important: William -I. and his successors had greater pecuniary interests in the English -counties than their Anglo-Saxon forerunners ever had, and the sheriffs -were their agents in collecting all rents and other dues. Even before -the Conquest, however, the sheriff of an ordinary county had ceased to -be a mere intermediary, who lifted the king’s rents and paid over, pound -by pound, the yearly varying sums he might receive. He had become a -_firmarius_: he bought for a yearly rent the right to collect and -appropriate to his own uses the various revenues of the county. The -Crown got only the exact sum stipulated for, known as the _firma -comitatus_; while the balance, if any, remained with the sheriff. That -officer was liable, on the other hand, for the sum agreed on, even when -the annual yield fell short of his anticipations. In plain words, the -sheriff speculated in the returns, and it was his business, by fair -means or foul, to make sure of a handsome surplus. - -Authorities differ as to the exact list of items purchased by the slump -sum known as _firma comitatus_; but undoubtedly the two chief sources of -revenue embraced were the profits of justice dispensed in the local -courts, and the rents and returns from the various royal manors in the -county. - -William I. sharply raised the amounts of all these farms for his own -benefit, and his successors endeavoured, whenever possible, to increase -them still further. Now it might seem at first sight that these -additional burdens concerned exclusively the Crown and the sheriff, but -such was by no means the case. The sheriff took care to pass on the -burden primarily falling upon him to the shoulders of those who were -subject to his authority. When the king exacted more from the sheriff, -the latter in turn increased the pressure on the inhabitants of his -county or group of counties. His rule tended always to be oppressive, -but his unjust fines and exactions would be doubled at times when the -amount of the _firma_ had recently been raised. - -Under the vigilant rule of Henry II. some measure of relief was obtained -by the shires from the misdeeds of their local tyrants, since that -far-seeing king knew that his own best interests called for a -curtailment of the pretensions of the sheriffs. He punished their -excesses, and frequently deprived them of office. Under John the -sheriffs had a comparatively free hand to oppress their victims, for he -entered into a tacit alliance with them, in order that the two tyrants -(the heads of the central and the local government respectively) might -together fleece the men of the county more effectually. In addition to -the fixed annual rents in name of _firma_ which had again become -stereotyped, John extorted an additional lump payment called either an -_incrementum_ or by various other names, and allowed the sheriffs to -inflict new severities in order to recoup themselves for their -additional outlay.[662] - ------ - -Footnote 662: - - Cf. Miss Norgate (_John Lackland_, p. 214) who explains that the Crown - claimed a share of the sheriffs’ ever-increasing surplus, and "this - was done, not by putting the ferm at a higher figure, but by charging - the sheriff with an additional lump sum under the title of - _crementum_, or, in John’s time, _proficuum_.“ But this practice was - by no means an innovation invented by John. Henry II. often exacted - such extra payments under the name of ”_gersuma_." Thus in _Pipe Roll_ - Henry II. (p. 11) the Sheriff of Norfolk and Suffolk paid 200 marks - under that name. The method adopted was practically to set up the - office of sheriff to auction. The highest suitable bidder obtained the - post, and the amount of the successful bid was entered at the - exchequer as a _gersuma_. - -Magna Carta made no attempt to abolish the practice of farming out the -shires, but forbade alike the increase of the farm and the exaction of -an _incrementum_. - -If this reform benefited the men of the counties in their dealings with -the sheriffs, it also gave the sheriffs an unfair advantage over the -exchequer. The total value of the various assets included in the _firma -comitatus_ had greatly increased in the past, and would probably -continue to increase in the future. Therefore, it was absurd to bind the -Crown by a hard-and-fast rule which would practically make a present of -this future “unearned increment” to the sheriff. It belonged of right to -the Crown; and the exchequer had increasing need of supplies to meet the -increasing duties of the central government. To stereotype the _firma_ -to be paid in return for a constantly increasing revenue was unfair to -the Crown.[663] It is thus easy to understand why this chapter was -entirely omitted in 1216 and in subsequent reissues. The _Articuli super -cartas_, on the other hand, while conceding to the counties the right of -electing their own sheriffs, reaffirmed the principle of John’s Charter, -declaring that neither the bailiwicks and hundreds of the king, nor -those of great lords ought to be put to farm at too high rates. The -evil, however, continued under a new form; sheriffs, while only paying a -moderate farm themselves, sublet parts of their province at much higher -rates, thus appropriating the increment denied to the exchequer, while -the bailiffs who had paid the increase could not “levy the said ferm -without doing extortion and duress to the people.”[664] Three successive -acts prohibited this practice, declaring that hundreds and wapentakes -must either be kept in the sheriff’s own hands, or sublet, if at all, at -the old fixed farms only.[665] - ------ - -Footnote 663: - - Cf. Sir James Ramsay, _Angevin Empire_, 476, who describes this - provision as “an impossible requirement.” Dr. Stubbs’ paraphrase is - not entirely happy: “the ferms of the counties and other jurisdictions - are not to be increased.” See _Const. Hist._ I. 575. - -Footnote 664: - - These are the words of the Statute of 1330, cited below. - -Footnote 665: - - See 4 Edward III. c. 15; 14 Edward III. c. 9; and 4 Henry IV. c. 5. - ------ - -One exception to the scope of its own provisions was deliberately made -by Magna Carta—an exception of an important and notable nature; the -demesne manors of the Crown were deliberately left exposed to arbitrary -increases of their annual rents. The towns in this respect were -practically in the same position as the demesne manors. It is true that -many of them had received separate charters fixing the amounts annually -payable under the name of farm (_firma burgi_ in their case), and that -all such charters received a general confirmation in chapter 13 of the -Great Charter, but the Crown could probably evade these promises by -applying the name of “increment” to any additional payments desired, or, -if that were objected to, might still resort to an arbitrary “tallage,” -the right to extort which had not been taken away by Magna Carta. The -money was as good to the Crown under one name as under another.[666] - ------ - -Footnote 666: - - Cf. _supra_, pp. 278-80. - ------ - - - - - CHAPTER TWENTY-SIX. - -Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel -ballivus noster ostendat litteras nostras patentes de summonicione -nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel -ballivo nostro attachiare et inbreviare catalla defuncti, inventa in -laico feodo, ad valenciam illius debiti, per visum legalium hominum, ita -tamen quod nichil inde amoveatur, donec persolvatur nobis debitum quod -clarum fuerit; et residuum relinquatur executoribus ad faciendum -testamentum defuncti; et, si nichil nobis debeatur ab ipso, omnia -catalla cedant defuncto, salvis uxori ipsius et pueris racionabilibus -partibus suis. - - If any one holding of us a lay fief shall die, and our sheriff or - bailiff shall exhibit our letters patent of summons for a debt which - the deceased owed to us, it shall be lawful for our sheriff or bailiff - to attach and catalogue chattels of the deceased, found upon the lay - fief, to the value of that debt, at the sight of lawful men, provided - always that nothing whatever be thence removed until the debt which is - evident[667] shall be fully paid to us; and the residue shall be left - to the executors to fulfil the will of the deceased; and if there be - nothing due from him to us, all the chattels shall go to the deceased, - saving to his wife and children their reasonable shares. - - ------ - -Footnote 667: - - Cf. the use of the phrase “a liquid debt” in Scots law. - ------ - -The primary object of this chapter was to regulate the procedure to be -followed in attaching the personal estates of Crown tenants who were -also Crown debtors. Incidentally, however, it throws light on the -general question of the right of bequeathing property. - -I. _The Nature of the Grievance._ When a Crown tenant died it was almost -certain that arrears of one or other of the numerous scutages, -incidents, or other payments due to the Crown remained unpaid. The -sheriff and the bailiffs of the district where the deceased’s estates -lay were in the habit of seizing everything they could find on his manor -under the excuse of securing the interests of their royal master. They -attached and sold chattels out of all proportion to the sum actually -due; and after satisfying the Crown debt, a large surplus would often -remain in the sheriff’s hands which it would be exceedingly difficult -for the relatives of the deceased freeholder to force him to disgorge. - -Magna Carta here sought to make such irregularities impossible for the -future by carefully defining the exact procedure to be followed in such -circumstances. The sheriff and his bailiffs were forbidden to touch a -single chattel of a deceased Crown tenant, unless they came armed with a -legal warrant in the form of royal letters patent vouching the existence -and the amount of the Crown debt. Even after exhibiting a warrant in -proper form, the officers were only allowed to attach as many chattels -as could reasonably be considered necessary to satisfy the full value of -the debt due to the exchequer; and everything so taken must be carefully -inventoried. All this was to be done “at the sight of lawful men,” -respectable, if humble, neighbours specially summoned for that purpose, -whose function it was to form a check on the actions of the sheriff’s -officers generally, to prevent them from appropriating anything not -included in the inventory, to assist in valuing each article and to see -that no more chattels were distrained than necessary. A saving clause -protected the interests of the Crown by forbidding the removal from the -tenant’s fief of any of the chattels, even those not so attached, until -the full ascertained amount had actually been paid to the exchequer. The -Crown’s preferential claims remained over everything on the manor until -the debt was extinguished. Only after that had been done, could a -division of the estate take place among the deceased man’s relatives or -those in whose favour he had executed a Will. - -These provisions should be read in connection with the terms of chapter -9,[668] which provided that diligence for Crown debts must proceed -against personal estate before the debtor’s freehold was distrained, and -laid down other equitable rules applicable alike to the case of a -deceased Crown debtor and to that of a living one. - ------ - -Footnote 668: - - Cf. what is there said of the sheriff’s oppressions and the attempts - made to put an end to them. - ------ - -II. _The Right to Bequeath._ The main interest of this chapter lies, -however, for the historian of law and institutions, in quite a different -direction; to him it is valuable for the light incidentally thrown on -the limits within which the right of making Wills was recognized in -1215. The early law of England seems to have had great difficulty in -deciding how far it ought to acknowledge the claims made by owners of -property, both real and personal, to direct its destination after death. -Various influences were at work, prior to the Norman Conquest, to make -the development of this branch of law illogical and capricious.[669] Of -the law of bequests in the twelfth century, however, it is possible to -speak with greater certainty; definite principles had by that time -received general recognition. All testamentary rights over land or other -real estate (so far as these had ever actually existed) were now -abolished, not, as has sometimes been maintained, in the interest of the -feudal lord, but rather in the interests of the expectant heir.[670] -Thus the right to devise land had been absolutely prohibited before the -end of the twelfth century. Many reasons contributed to this result. For -one thing, it had become necessary to prevent churchmen from using their -influence to wring bequests of land from dying men, to the -impoverishment of the rightful heir, and to the destruction of the due -balance between Church and State, already menaced by the rapidly -accumulating wealth of the various religious orders. - ------ - -Footnote 669: - - The subject is exhaustively discussed by Pollock and Maitland, II. - 312-353. - -Footnote 670: - - See Pollock and Maitland, II. 324. - ------ - -Churchmen, in compensation as it were for the obstacles thus opposed to -their thirst for the land of the dying, made good their claim to -regulate all Wills dealing with personal estate; that is money, goods, -and chattels. They claimed and obtained for their own courts the right -to exclusive jurisdiction over all testamentary provisions, now, of -course, competent in respect of personal estate only. The Courts -Christian “proved” Wills, (that is, usurped the right to determine -whether they were really valid acts of the departed or not) and also -superintended their administration. In particular, they had control over -the “executors” who were originally the friends to whom the deceased had -made known his wishes as to the distribution of his money and chattels -on his death. The Church Courts ensured that the executors loyally -carried out these intentions, and prevented them from appropriating to -their own uses what had been entrusted to them for the good of the -deceased’s soul. In John’s reign, however, the Crown and its officers -interfered alike with the rights of testators to make Wills and the -rights of the bishop of the diocese to supervise the distribution. Not -only did the sheriffs find pretexts to help themselves; but John seems -to have maintained that Wills were not valid without his consent, which -had, as usual, to be paid for. Such, at least, is the inference to be -drawn from the existence of writs granting licences to make a Will, or -confirming one that had been made.[671] The king’s interference in this -province seems, however, to have been regarded as an entirely illegal -encroachment. - ------ - -Footnote 671: - - On 30th August, 1199 (_New Rymer_, I. 78) John confirmed the testament - of Archbishop Hubert Walter; and on 22nd July, 1202, (_Ibid._, I. 86) - he granted permission to his mother, the dowager Queen Eleanor, to - make a Will. - ------ - -In strict law, rights of testation, though prohibited _quoad_ land, were -recognized _quoad_ personal estate. It must not, however, be supposed -that the testator was at liberty to divide or “devise” all his money and -chattels. The reasonable claims of wife and children must first be -respected, and only the free balance, after satisfying these, could be -distributed. It was long before any exact rule was established for -determining the amount of these “reasonable” claims. Much could be said -for an elastic rule which allowed the proportion of personal estate -falling to wife and children to vary with the circumstances of each -case; but this vagueness had one grave objection; it inevitably led to -friction and family quarrels. Magna Carta in this respect simply -confirmed existing practice, and made no attempt at definition. During -the thirteenth century, however, the lawful shares of wife and children -were definitely fixed by the English common law, and that, too, at -exactly the same proportions of the entire personal estate as are -recognized to the present day by the law of Scotland. Where a Scots -testator dies leaving wife and children, his moveable or personal estate -is regarded as falling naturally into three equal parts, known as the -widow’s part, the bairn’s part, and the dead’s part, respectively. It is -only with the last mentioned third of his own moveables that he can do -as he likes. If he disposes of the rest, wife and children may claim -their legal rights and “break the Will.” Where a wife survives but no -children, or _vice versa_, the division is into two equal portions. -Magna Carta recognises a similar threefold or twofold decision, and -contains a clear acknowledgment of what Scots law to the present day -quaintly describes as "the dead’s part." It was only the residue of the -deceased’s chattels after claims of wife and children had been -satisfied, which was “to fall to the deceased,” and which is also spoken -of as the portion of personal estate left to the executors “to fulfil -the testament of the deceased.” This portion was appropriated “to the -use of the dead”: that is, his executors, under the guidance of the -Church Courts, would use it for the salvation of his soul. The deceased -might either have given specific directions, or have left full powers to -his executors (frequently churchmen) to make the division for charitable -and religious purposes according to their own discretion. Part might go -to needy relations, or to the poor of the district; part to endow -religious houses; and part in masses for his eternal welfare. - -Long subsequent to the thirteenth century, the laws of England and -Scotland as to the rights of succession of wife and children seem to -have remained identical: but, while Scots law is the same to the present -day, recognizing still the widow’s _jus relictae_ and the children’s -_legitim_, the English law has, by slow steps, the details of which are -obscure, entirely changed. The rule which acknowledged the children’s -right to one third of the personal estate was gradually relaxed, while -the testator became sole judge what provision he ought to make for his -sons, until at last a purely nominal sum of money was all that was -required. Finally the power to bequeath personal estate has (in sympathy -with exaggerated modern conceptions of the sacredness of rights of -“property”) expanded to such an extent that a father may leave his -children entirely penniless; and the law will not interfere. The law of -England, at the present day, does not compel him to leave his son or -daughter even the proverbial shilling. The phrase “to cut off a son with -a shilling,” which still lives in popular usage, may possibly perpetuate -a now forgotten tradition of an intermediate stage of English law, where -some provision, however inadequate, had to be made, if the Will was to -be allowed to stand.[672] - ------ - -Footnote 672: - - The reissue of 1216 makes no alteration here, but that of 1217 omits - “_et pueris_,” thus protecting the wife’s “reasonable portion” but not - that of the sons. The words omitted were restored in 1225. It was - probably a mere clerical error. - ------ - - - - - CHAPTER TWENTY-SEVEN. - -Si aliquis liber homo intestatus decesserit, catalla sua per manus -propinquorum parentum et amicorum suorum, per visum ecclesie -distribuantur, salvis unicuique debitis que defunctus ei debebat. - - If any freeman shall die intestate, his chattels shall be distributed - by the hands of his nearest kinsfolk and friends, under the - supervision of the church, saving to every one the debts which the - deceased owed to him. - - -Here the Great Charter proceeds to remedy an evil connected with -_intestate_ succession, a natural sequel to the subject of _testate_ -succession. John was made to promise that he would not seize, as forfeit -to his exchequer, the chattels of men who had neglected to make a will. -In the Middle Ages all classes of men, good and bad alike, exhibited an -extreme horror of dying intestate.[673] Several causes contributed -towards this frame of mind. Churchmen, from motives not unmixed, -diligently inculcated the belief that a dying man’s duty was to leave -part at least of his personal estate (the only property over which the -law allowed him powers of disposal) for religious and charitable -objects. The bishop or priest, who had power to give or withhold extreme -unction to the sinner who had confessed his sins, was in a peculiarly -strong position to enforce his advice upon men who believed the Church -to hold the keys of heaven. Thus, every man on his death-bed had -powerful motives for making his will in such form as the Church -approved. Motives of a more worldly kind urged him in the same -direction. If he died intestate, a scramble for his personal effects -would undoubtedly result. Many powerful claimants were ready to compete. -In Glanvill’s day, for example,[674] every feudal lord claimed the goods -of his intestate vassals. Such demands were difficult to defeat, -although Bracton, at a later date[675] declared them to be illegal, at -least in cases of sudden death. Then, the kinsmen—rich and poor -relations—had certain rights never very clearly defined. The Church, -too, stood ready, with claims judiciously vague, which might be expanded -as occasion required. It arrogated, at the very lowest, the right to -distribute the dead man’s chattels for the good of his soul, and there -are instances when a strong-minded bishop or abbot insisted on such a -distribution, although the deceased had died unrepentant, leaving no -will.[676] - ------ - -Footnote 673: - - Pollock and Maitland, II. 354. - -Footnote 674: - - VII c. 16. - -Footnote 675: - - F. 60 b. - -Footnote 676: - - This course was taken in 1197 by Abbot Samson, whose deeds are - portrayed for us by Jocelyn of Brakelond to the delight of Thomas - Carlyle. See _Past and Present_, _passim_. Cf. also Pollock and - Maitland, II. 355. - ------ - -Prelates allowed themselves liberal discretion in regard to "the dead’s -part" over which they thus assumed control. Something might go to the -poor, but much would naturally be spent on masses for the departed soul, -while a portion might openly be retained as a recompense for trouble -expended in this pious cause. The king was another competitor for the -goods of those who left no will; and attempts were made at various times -to treat intestacy, more especially in the case of clerks, as a cause of -forfeiture.[677] For our present purpose it is unnecessary to discuss -whether this claim was founded on the royal prerogative or on the rights -of the king in his capacity either as overlord or as patron of vacant -sees.[678] - ------ - -Footnote 677: - - See Pollock and Maitland, II. 354. Examples are readily found: “When - Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of - £11,000, to say nothing of the spoons and saltcellars.” Pollock and - Maitland, I. 504. - -Footnote 678: - - Royal prerogatives in the twelfth century were still elastic and - undefined. Henry II. used them freely, but on the whole fairly. His - sons stretched every doubtful claim to its utmost limits. The Crown - was the legal heir of all Jews (cf. c. 10) and apparently of all - Christian usurers as well, at least of such as died unrepentant. (See - Pollock and Maitland, II. 486, and authorities there cited.) It is - interesting in this connection to note that the making of a will was - looked on as a necessary condition of a usurer’s repentance. (See - _Dialogus de Scaccario_, 224–5, nn.) The king, further, took the goods - of all who died a felon’s death (cf. c. 32) and of men who committed - suicide (itself a felony). John, so we may infer from Magna Carta, - went further, and appropriated the chattels of all intestates. Were - there any precedents from his father’s reign for this wider claim? - Madox (I. 346) cites an entry from the _Pipe Polls_ of 1172, recording - 60 marks due the exchequer as the value of the chattels of an - intestate; and, two years later, mention is made _de pecunia - Gilleberti qui obiit intestatus_. There is nothing to show whether - such men were, or were not, usurers. The Pope was another competitor - for the personal estates of intestate clerks. In 1246, he issued an - edict making this demand. Even Henry III. (dependent and ally of Rome - as he was) protested, and the edict was withdrawn. (See Pollock and - Maitland, II. 357.) - ------ - -This chapter of Magna Carta was directed against all such pretensions of -the Crown or its officials. Whoever else might get these windfalls, King -John must not compete. So much is clear; some sort of compromise was, -further, made between the two most likely claimants. Magna Carta -provided for a friendly co-operation between the deceased’s kinsmen and -the Church in distributing the residue of the intestate’s personal -estate, after satisfying all preferential claims of creditors, wives, -and children. This chapter, although afterwards struck out of all -reissues of the Charter, seems to have been observed in practice.[679] -Apparently, however, the right of the kinsfolk to share the control with -the Church gradually receded into the background, while the Courts -Christian assumed complete authority in all cases of intestacy; so much -so, that churchmen had frequently to be reminded that they were only the -dead man’s administrators, and not entitled to appropriate the goods to -their own uses. - ------ - -Footnote 679: - - Cf. Pollock and Maitland, II. 355. “This clause, though it was - deliberately withdrawn, seems to have settled the law.” - ------ - -It is easy to understand the motives which, in 1216, led those -responsible for the government of the young Henry III. to withdraw this -provision of Magna Carta. The Crown had then need of all the money it -could get, and so long as the uncertainty of the law allowed a scramble -to take place for the goods of intestates, the king could not be asked -to stand aside with his hands tied by a clause of Magna Carta. He would -take his chance with the other claimants. It was the Church, however, -and not the Crown, which finally secured the prize.[680] - ------ - -Footnote 680: - - This chapter should be compared with a corresponding provision in the - Charter of Liberties granted by Henry I. William Rufus, like John, had - evidently helped himself freely to the chattels of intestates. Henry - I. (c. 7) made what seems to be merely a partial renunciation of this - right: where the deceased had been prevented “by arms or infirmity” - from making his will, his relations and vassals might distribute his - goods for him. Are we to infer that Henry reserved the right to seize - them in all other events? Stephen, in his second or Oxford Charter - (cf. _supra_, p. 121 and appendix), clearly and unambiguously resigned - all such rights, as far as the property of churchmen was concerned. - _Si vero morte preoccupatus fuerit, pro salute anime ejus ecclesie - consilio eadem fiat distributio._ He also confirmed full rights of - making wills to churchmen. We have already seen that his successors - did not observe these provisions. (See _supra_, pp. 383-4, and also - Pollock and Maitland, 1. 503.) - - - - - CHAPTER TWENTY-EIGHT. - -Nullus constabularius, vel alius ballivus noster, capiat blada vel alia -catalla alicujus, nisi statim inde reddat denarios, aut respectum inde -habere possit de voluntate venditoris. - - No constable or other bailiff of ours shall take corn or other - provisions from any one without immediately tendering money therefor, - unless he can have postponement thereof by permission of the seller. - - -This chapter is the first of several which redressed abuses springing -from one root, namely, the exercise of the royal right of purveyance by -the various agents of the local government. - -I. _Purveyance in General._ The Norman and Angevin kings of England were -compelled by their administrative duties and induced by the pleasures of -the chase to move their courts constantly from district to district. -During these royal progresses the difficulties must have been great of -finding sufficient food for the enormous retinues surrounding the king -in times of peace, and for his armed levies in time of war. It was to -the interests of the community as a whole that the work of government -and of national defence should not be brought to a stand-still for want -of supplies. No opposition was made when the king arrogated to himself -the privilege of appropriating, under fair conditions, such necessaries -as his household might require. Such a right, not unlike that enjoyed in -modern times by the commander of an army encamped in an enemy’s country, -was allowed to the kings of England in their own land in times of peace, -and was known as the prerogative of purveyance.[681] Unfortunately, the -conditions under which supplies might be requisitioned were left vague: -the privilege was therefore subject to constant abuse. In theory it was -always spoken of as merely a right of pre-emption; the provisions seized -were to be paid for at the market rate: but practice tended to differ -lamentably from theory. In the absence of a neutral arbitrator to fix -the value of the goods, the unfortunate seller was often thankful to -accept any pittance offered by royal officials, who might subsequently -indeed charge a higher rate against the Crown. Payment was often -indefinitely delayed or made not in coin but in exchequer tallies, “a -vexatious anticipation of taxation,” since these could only be used in -payment of Crown dues. What was worse, in the hurry of the moment, the -king’s purveyors often omitted the formality of paying altogether. - ------ - -Footnote 681: - - See Blackstone, _Commentaries_, I. 287, for an often-quoted definition - of purveyance. - ------ - -Magna Carta did not abolish purveyance, and placed no restrictions -whatever upon its use for the legitimate and original purpose of -supplying the king’s household. Some slight attempt to control its -exercise was made sixty years later in the Statute of Westminster I.; -but without producing much effect.[682] The grievances connected with -purveyance continued throughout four centuries as a fertile source of -vexation to the people and of friction between parliament and the king. -An attempt, made by the House of Commons to induce James I. to surrender -this prerogative for a suitable money grant, ended in failure, with the -abandonment of the abortive treaty known as “the Great Contract.” In the -general re-settlement of the revenue, however, at the Restoration, -purveyance and pre-emption, which had fallen into disuse during the -Commonwealth, were abolished.[683] Yet in the following year a new -statute[684] virtually revived one branch of the right under essential -modifications: when royal progresses were necessary in the future, -warrants might be issued from the Board of Green Cloth, authorizing the -king to use such carts and carriages as he might require, at a fair rate -of hire specified in the Act of Parliament. - ------ - -Footnote 682: - - 3 Edward I. c. 32. - -Footnote 683: - - 12 Charles II. c. 24, ss. 11-12. - -Footnote 684: - - 13 Charles II. c. 8. - ------ - -II. _Branches of Purveyance restricted by Magna Carta._ A practice -tolerated in spite of its burdensome nature because of its absolute -necessity, when confined to its original purpose of providing for the -needs of the king’s household, became intolerable when claimed by every -castle-warden, sheriff, and local bailiff for his own personal or -official needs. The annoyance and hardships inseparable from such -arbitrary interference with the rights of private property were thus -increased tenfold, while ample discretionary authority was vested in a -class of officials least qualified to use it, unscrupulous foreign -adventurers hired by John to intimidate the native population, -responsible to no one save the king, and careful never to issue from -their strongholds except at the head of their reckless soldiery. The -Great Charter contained a few moderate provisions for checking the -abuses of purveyance as an instrument of local administration. - -(1) _The provisioning of castles._ Commanders of fortresses were left -perfectly free by Magna Carta to help themselves to such corn and other -supplies as they deemed necessary for their garrisons. Immediate -payment, however, must be made in current coin (not in exchequer -tallies) for everything they requisitioned, unless the owner, on whom a -compulsory sale was forced, consented to postpone the date of payment. -The Charter of 1216 made a slight modification in favour of castellans. -Payment for goods taken from inhabitants of the town where the castle -was situated might be legally delayed for three weeks, a term extended -in 1217 to forty days. Such relaxation was perhaps necessary to meet the -case of a warden with an empty purse called on to provide against an -unexpected siege or other emergency; but the peaceful townsmen, over -whose dwellings the dark walls of a feudal stronghold loomed, would not -prove creditors who pressed unduly for payment. Under Henry’s Charters, -as under that of John, immediate payment had to be tendered to owners of -goods who lived elsewhere than in this neighbouring town.[685] - ------ - -Footnote 685: - - The Statute of Westminster I. (3 Edward I. c. 7) enacted “that no - constable or castellan from henceforth take any prise or like thing of - any other than of such as be of their town or castle, and that it be - paid or else agreement made within forty days, if it be not ancient - prise due to the king, or the castle, or the lord of the castle,” and - further provided (c. 32) that purveyors taking goods for the king’s - use, or for a garrison, and appropriating the price received therefor - from the exchequer, should be liable in double payment and to - imprisonment during the king’s pleasure. - ------ - -(2) _The requisitioning of horses and carts._ The provisions of chapter -30, modified in subsequent re-issues, sought to prohibit sheriffs from -exacting compulsory cartage from the property of freemen. - -(3) _The appropriation of timber._ The succeeding chapter confined the -king and his officers to the use of such wood as they could obtain from -the royal demesnes.[686] - ------ - -Footnote 686: - - For details, see under cc. 30 and 31. - ------ - -III. _Branches of Purveyance not mentioned in Magna Carta._ A wide field -was left alike for the use and the abuse of this prerogative, after due -effect had been given to these moderate provisions. In addition to the -constant friction kept up through many centuries by its employment as a -means of supplying the wants of the king’s household, two minor aspects -of purveyance came into special prominence in later history. - -(1) _The requisition of forced labour._ Hallam points out that the -king’s rights of pre-emption over such goods as he required were -extended, by analogy, to his subjects’ labour. "Thus Edward III. -announces to all sheriffs that William of Walsingham had a commission to -collect as many painters as might suffice for ‘our works in St. -Stephen’s chapel, Westminster, to be at our wages as long as shall be -necessary’; and to arrest and keep in prison all who should refuse or be -refractory; and enjoins them to lend their assistance. Windsor Castle -owes its massive magnificence to labourers impressed from every part of -the kingdom. There is even a commission from Edward IV. to take as many -workmen in gold as were wanted, and employ them at the king’s cost upon -the trappings of himself and his household."[687] Perhaps, however, such -demands did not form a branch of purveyance at all, but were merely -instances of illegal royal encroachments. - ------ - -Footnote 687: - - Hallam, _Middle Ages_, III. 221. - ------ - -(2) _Billeting of soldiers in private houses._ This practice, which may -be considered a branch of purveyance, has always been peculiarly -abhorrent to public opinion in England. It is as old as the reign of -John; for when that king visited York in 1201 he complained bitterly -that the citizens neither came out to meet him nor provided for the -wants of his crossbow-men. His threats and demands for hostages were -with difficulty turned aside by a money payment of £100.[688] Charles I. -made an oppressive use of this branch of what seems to have been once a -perfectly legal prerogative, punishing householders who opposed his -unpopular measures by quartering his dissolute soldiery upon them, a -practice branded as illegal by the Petition of Right in 1628.[689] - ------ - -Footnote 688: - - See _Rotuli de oblatis et finibus_, 119. - -Footnote 689: - - See 3 Charles I. c. 1. - - - - - CHAPTER TWENTY-NINE. - -Nullus constabularius distringat aliquem militem ad dandum denarios pro -custodia castri, si facere voluerit custodiam illam in propria persona -sua, vel per alium probum hominem, si ipse eam facere non possit propter -racionabilem causam; et si nos duxerimus vel miserimus eum in exercitum, -erit quietus de custodia, secundum quantitatem temporis quo per nos -fuerit in exercitu. - - No constable shall compel any knight to give money in lieu of - castle-guard, when he is willing to perform it in his own person, or - (if he himself cannot do it from any reasonable cause) then by another - responsible man. Further, if we have led or sent him upon military - service, he shall be relieved from guard in proportion to the time - during which he has been on service because of us. - - -Castle-guard, or the liability to serve in the garrison of a royal -fortress, formed part of the feudal obligations of the owners of certain -freehold estates. This service was sometimes due in lieu of attendance -in the army; more usually the tenant who owed garrison duty owed -knight’s service as well.[690] It was probably this duplication of -duties that prevented castle-guard from hardening into a separate -tenure.[691] The right to enforce these obligations was naturally -entrusted to the constables of the various castles whose duty it was to -keep their garrisons at their full strength. John, however, preferred to -commute personal service of castle-guard for money payments (analogous -to the scutage paid in lieu of knight’s service), and to man his feudal -towers with soldiers of fortune rather than with rebellious Englishmen. -Castellans were, therefore, in the habit of demanding money even from -those who offered personal service. What was worse, when the freeholder -had followed John on distant service, he was mulcted in a money payment -because he had not stayed at home to perform garrison duty during the -same period. Both forms of this abuse were absolutely forbidden in 1215. -In certain circumstances, however, this prohibition would have deprived -the king of what was equitably due to him. Suppose he had granted two -fiefs to the same tenant—one by simple knight’s service, the other by -castle-ward. A double holding implied double service; the tenant could -not in fairness plead that the service of one knight rendered abroad -operated as the full discharge of the services of two knights due from -his two separate fiefs. Castle-guard must in such a case be performed by -an efficient deputy, or else the usual compensation be paid. The reissue -of 1217 amended John’s Charter to this effect. Service with the army -abroad operated as a discharge of castle-guard at home, but not where -the tenant owed two services for two distinct fiefs.[692] - ------ - -Footnote 690: - - See the examples collected in Pollock and Maitland, I. 257. See also - in _Rotuli de oblatis et finibus_, 107, how in 1200 Ralph de Bradel - offered John 40 marks and a palfrey to be relieved of “the custody of - the work of the castle of Grimsby.” - -Footnote 691: - - Cf. _supra_, p. 70. - -Footnote 692: - - _De feodo pro quo fecit servicium in exercitu._ This variation in the - charter of 1217 seems to have escaped Dr. Stubbs’ attention. See - _Select Charters_, 346. - - - - - CHAPTER THIRTY. - -Nullus vicecomes, vel ballivus noster, vel aliquis alius, capiat equos -vel carectas alicujus liberi hominis pro cariagio faciendo, nisi de -voluntate ipsius liberi hominis. - - No sheriff or bailiff of ours, or any other person, shall take the - horses or carts of any freeman for transport duty, against the will of - the said freeman. - - -The Charter here returned to the subject of purveyance, one branch of -which it practically abolished, except as affecting villeins. No carts -or horses belonging to a freeman were to be requisitioned by any sheriff -or bailiff for the use of the Crown without the owner’s consent; that is -to say, they could not be requisitioned at all. The clause, however, was -carefully limited to freemen; the inference is plain, that the horses -and implements of villeins were left at the disposal of the Crown -without leave asked or price paid for their use. The relative chapter of -the reissue of 1216 practically restored this branch of purveyance; -consent of the owner, even when a freeman, need not be obtained, -provided hire was paid at the rates sanctioned by ancient custom. Those -rates, however, were definitely stated, namely, 10d. _per diem_ for a -cart with two horses, and 1s. 2d. for one with three.[693] Thus the -prerogative, though restored, was not to be abused. - ------ - -Footnote 693: - - The rate fixed by 13 Charles II. c. 8, for the hire of carts or - carriages requisitioned by the king, was 6d. per mile. This hire - included six oxen, or alternatively two horses and four oxen, to each - vehicle. - ------ - -In 1217 it was again slightly restricted in favour of the upper classes. -No demesne cart of any “parson” (_ecclesiastica persona_), or knight, or -lady, could be requisitioned by the bailiffs. The “demesne” carts were, -of course, those that belonged to the owner of the manor as opposed to -the carts of the villeins. Here again we have evidence of care to make -it clear, if not that villeins were to have no part or parcel in the -benefits of the great Charter, at least that their rights, if they had -any, could not stand against the more important rights of the Crown. -Yeomen and small freeholders were also left exposed to this annoying -form of interference. Abuses continued. Purveyors would occasionally lay -hands on all available horses and carts in the countryside—far more than -they required—choosing perhaps the season of harvest or some equally -busy time. The owners, who urgently required them for their own -purposes, would pay ransom money to regain possession. Edward I. enacted -that perpetrators of such deeds should be “grievously punished by the -marshals,” if they were members of his household, and therefore amenable -to the summary jurisdiction of his domestic tribunal, or, if not -members, then they should pay treble damages and suffer imprisonment for -forty days.[694] - ------ - -Footnote 694: - - See 3 Edward I. c. 32. - - - - - CHAPTER THIRTY-ONE. - -Nec nos nec ballivi nostri capiemus alienum boscum ad castra, vel alia -agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit. - - Neither we nor our bailiffs shall take, for our castles or for any - other work of ours, wood which is not ours, against the will of the - owner of that wood. - - -Purveyance of timber growing elsewhere than on royal estates is here -prohibited in absolute terms. In marked contrast with the limited -restrictions placed upon other branches of purveyance, this branch is -taken away, not merely from local officials, but from the king -himself.[695] There was an obvious reason for greater stringency in this -case: the king’s own extensive demesne woods furnished timber in -abundance, whether for building purposes or for firewood, leaving him no -excuse for taking, especially if for nothing, the trees of other people. - ------ - -Footnote 695: - - Cf. Sir James Ramsay, _Angevin Empire_, p. 476, who considers that - chapters 28 and 30, in the branches of prerogative with which they - respectively deal, "leave the king’s personal right open." - ------ - -The purveyors of James I., shortly after his accession, transgressed -this provision of Magna Carta by requisitioning timber for repairing the -fortifications of Calais. A decision against the Crown was given by the -Barons of Exchequer in the second year of James’s reign, and a -proclamation was issued, bearing date 23rd April, 1607, disclaiming any -right to such a prerogative. The guilty purveyors were brought before -the Star Chamber.[696] - ------ - -Footnote 696: - - See Coke, _Second Institute_, 36. - - - - - CHAPTER THIRTY-TWO. - -Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi -per unum annum et unum diem, et tunc reddantur terre dominis feodorum. - - We will not retain beyond one year and one day, the lands of those who - have been convicted of felony, and the lands shall thereafter be - handed over to the lords of the fiefs. - - -I. _The Crown’s Claim to the Property of Felons._ The Crown had -gradually established certain rights, not too clearly defined, in the -property of all criminals formally indicted and sentenced for felony. -John, here as elsewhere, took full advantage of the vagueness of the law -to stretch prerogative to its utmost limit. Magna Carta, therefore, -attempted to define the exact boundaries of his rights. The old -customary law seems invariably to have given the chattels of a condemned -man to the owner of the court which tried him, and the desire for such -perquisites must have created an unfortunate bias against the accused. -It was not possible, however, to adopt so simple a rule with regard to -the real estate of felons, for this was claimed as escheat by the feudal -lord from whom the lands were held. Custom gave the land of a felon to -his feudal lord, and his chattels to the lord who tried him. The Crown -gradually encroached on the rights of both, claiming the real estate of -felons, as against mesne lords, and their personal estate, as against -the lords who had jurisdiction. - -(1) _The felon’s lands._ No difficulty arose when Crown tenants were -convicted, since there the king was lord of the fief as well as lord -paramount, and claimed the whole lands as escheat. When the condemned -man was the tenant of a mesne lord, however, a conflict of interests -occurred, and here a distinction, which gradually became hard and fast, -was drawn between treason and felony.[697] Treason was an offence -against the person of the sovereign, and it was probably on this ground -that the king made good his claim to seize as forfeit the entire estate, -real and personal, of every one condemned to a traitor’s death. With -regard to ordinary felons, what looks like a compromise was arrived at. -The king secured the right to lay waste the lands in question and to -appropriate everything he could find there during the space of a year -and a day; after which period he was bound to hand over the freehold -thus devastated to the lord who claimed the escheat. Such was the custom -during the reign of Henry II. as described by Glanvill, who makes it -perfectly clear that before the lands were given up at the expiration of -the year, the houses were thrown down and the trees rooted up, thus -purging away the taint of crime and enriching the exchequer with the -price of the timber and building materials.[698] The exercise of this -right of waste inflicted upon the lord of the escheat an amount of -damage out of all proportion to the benefit it brought to the king. The -lord, when at last he entered into possession of the escheated lands, -found a desert, not a prosperous manor.[699] - ------ - -Footnote 697: - - Pollock and Maitland, II. 500, consider that the present chapter had a - distinct influence in accentuating this twofold classification of - crimes. - -Footnote 698: - - Glanvill, VII. c. 17. Cf. Bracton, _folio_ 129, for a graphic - description of “waste,” which included the destruction of gardens, the - ploughing up of meadow land, and the uprooting of woods. - -Footnote 699: - - Is it possible that the origin of “year and waste” can be traced to - the difficulty of agreeing on a definition of “real” and “personal” - estate respectively? The Crown would claim everything it could as - "chattels"—a year’s crops and everything above the ground. - ------ - -Coke has attempted to give a more restricted explanation of the Crown’s -rights in this respect, maintaining that the “year and day” was not an -addition to, but a substitute for, the earlier right of “waste,” that -the king renounced his barbarous claims in return for the undisputed -enjoyment of the ordinary produce for one year only, and agreed, in -return for this, to hand over the land with all buildings and -appurtenances intact.[700] The authorities he cites, however, are -inconclusive, and the weight of evidence on the other side leaves little -room for doubt. Not only does the phrase “year day _and_ waste” commonly -used, create a strong presumption; but Glanvill’s words in speaking of -the earlier practice are quite free from ambiguity, while the document -known as the _Praerogativa Regis_ is equally explicit for a period long -after Magna Carta.[701] Waste, indeed, was a question of degree, and the -Crown was not likely to be scrupulous in regard to felons’ lands, when -it allowed wanton destruction even of Crown fiefs held in honourable -wardship.[702] A year was by no means too long for a thorough exercise -of the right of waste. - ------ - -Footnote 700: - - _Second Institute_, p. 36. - -Footnote 701: - - See Pollock and Maitland, I. 316. “The apocryphal statute - _praerogativa regis_ which may represent the practice of the earlier - years of Edward I.” Bracton (_folio_ 129) while stating that the Crown - claimed both, seems to doubt the legality of the claim. - -Footnote 702: - - Cf. _supra_, pp. 244-6. - ------ - -Wide as were the legal rights of the Crown, John extended them -illegally. When his officers had once obtained a footing in the felon’s -land, they refused to surrender it to the rightful lord after the year -and day had expired. In 1205, Thomas de Aula paid 40 marks and a palfrey -to get what he ought to have had for nothing, namely the lands escheated -to him through his tenant’s felony.[703] Magna Carta prohibited such -abuses for the future; prompt evacuation must henceforth take place when -the year was over; and this settled the law for centuries.[704] The -Crown long exercised its rights, thus limited, and Henry III. sometimes -sold his “year day and waste,” for considerable sums. Thus, in 1229 -Geoffrey of Pomeroy was debited with 20 marks for the Crown’s rights in -the lands of William de Streete and for his corn and chattels. This sum -was afterwards discharged, however, on the ground that the king, induced -to change his mind, doubtless by a higher bid, had bestowed these rights -on another.[705] - ------ - -Footnote 703: - - Such at least is the most probable explanation of an entry on the Pipe - Roll of 6 John (cited Madox, I. 488); although it is possible that - Thomas only bought in “the year day and waste.” - -Footnote 704: - - Magna Carta is peculiar in speaking of year and day, without any - reference to waste. If it meant to abolish “waste” it ought to have - been more explicit. Later records speak of “_annum et vastum_,” _e.g._ - the _Memoranda_ Roll, 42 Henry III. (cited Madox, I. 315), relates how - 60 marks were due as the price of the “year and waste” of a mill, the - owner of which had been hanged. - -Footnote 705: - - _Pipe Roll_, 13 Henry III., cited Madox, I. 347. In Kent, lands held - in gavelkind were exempt alike from the lord’s escheat and the king’s - waste, according to the maxim “The father to the bough, the son to the - plough.” See, _e.g._ _praerogativa regis_, c. 16. - ------ - -(2) _The felon’s chattels._ From an early date the king enjoyed, like -other owners of courts, the right to the goods of the offenders he -condemned. When Henry II. reorganized the entire system of criminal -justice, and formulated, in the Assizes of Clarendon and Northampton, a -scheme whereby all grave offenders should be formally indicted, and -thereafter reserved for the coming of his own justices, he established -what was practically a royal monopoly of jurisdiction over felons; and -this logically implied a monopoly over their chattels as well—an -inference confirmed by the express terms of article five of the earlier -Assize. As the list of “pleas of the Crown,” which is in this connection -identical with the list of “felonies,” grew longer, so this branch of -royal revenue increased proportionately at the expense of the private -owners of “courts leet.” Even in the ten years between the criminal -codes of 1166 and 1176, two new offences were added to the list, forgery -and arson. The goods of all outlaws and fugitives from justice likewise -fell to the exchequer—the sheriff who seized them being responsible for -their appraised value.[706] - ------ - -Footnote 706: - - Madox. I. 344-8, cites from the _Pipe Rolls_ many examples. - ------ - -The magnates in 1215 made no attempt to interfere with this branch of -administration, tacitly acquiescing in Henry II.’s encroachments on -their ancestors’ criminal jurisdictions and perquisites. Under Henry -III. and Edward I. the forfeited goods of felons continued to form a -valuable source of revenue. In 1290 the widow of a man who had committed -suicide, and therefore incurred forfeit as a _felo de se_, bought in his -goods and chattels for £300, a high price, in addition to which the -Crown specially reserved its “year day and waste.”[707] - ------ - -Footnote 707: - - This case is cited by Madox, I. 347, from 18 Edward I. - ------ - -II. _Indictment, Conviction, and Attainder._ The Crown could not -appropriate the property of men merely suspected of crime, however -strong might be the presumption of guilt. Mere accusation was not -enough; a formal judgment was required. The Charter refers to the lands -of a “convicted” offender, and conviction must be distinguished from -indictment on the one hand, and from attainder on the other; since these -formed three stages in the procedure for determining guilt. - -(1) _Indictment._ It has already been shown[708] how Henry of Anjou -tried to substitute, wherever possible, indictment by a jury for private -appeal in criminal suits. The Assize of Clarendon authorized such -indictments to be taken before sheriffs, and we learn from Bracton that -immediately the formal accusation had been made the sheriff became -responsible for the safety of the accused man’s property, both real and -personal. With the help of the coroners and of lawful men of the -neighbourhood he must have the chattels appraised and inventoried, and -hold them in suspense until the “trial,” providing therefrom in the -interval “estovers,” that is, sufficient sustenance for the accused and -his family.[709] - ------ - -Footnote 708: - - _Supra_, p. 108. - -Footnote 709: - - See Bracton, II. _folio_ 123, and _folio_ 137. - ------ - -If the prisoner was acquitted or died before conviction, then the lands -and chattels were restored to him or to his relatives, the Crown taking -nothing. Reginald of Cornhill, sheriff of Kent, was discharged in 1201 -from liability for the appraised value of the goods of a man who, after -indictment for the burning of a house, had died in gaol _non convictus_. -As the _Pipe Roll_ clearly states, his chattels did not pertain to the -king.[710] - ------ - -Footnote 710: - - _Pipe Roll_, 2 John, cited Madox, I. 348. - ------ - -(2) _Conviction._ If the sheriff presided over all preliminary procedure -connected with indictment, only the justices could “try” the plea, that -is, give sentence according to success or failure in the test appointed -for the accused man to perform.[711] Prior to 1215 the usual test, in -accordance with the Assize of Clarendon, was the ordeal of water in the -ordinary case, or of the red-hot iron in the case of men of high rank, -or of women. If the suspected man failed, sentence was a mere formality; -he had “convicted” himself of the felony. As a consequence of the -condemnation of ordeal by the Lateran Council of 1215, the verdict of -guilty pronounced by what was virtually a petty jury, became the normal -“test” which branded an offender as _convictus_. This was long looked on -as an innovation, and accordingly the law refused to compel the accused, -against his will, to trust his fate to this new form of trial. He might -refuse to “put himself upon his country,” and by thus “standing mute,” -as the phrase was, make his own “conviction” impossible, saving himself -from punishment and depriving the king of his chattels and “year and -day.” For centuries those responsible shrank from the obvious course of -treating silence as equivalent to a plea of guilty; but while liberty to -refuse to submit to a jury’s verdict was theoretically recognized, -barbarous measures were in reality adopted to compel consent. The -Statute of Westminster in 1275[712] directed that all who refused should -be imprisoned _en le prison forte et dure_. The object seems to have -been to ensure that obstinate offenders should not escape altogether -unpunished, although they saved their property by avoiding a technical -conviction. This statutory authority for strict confinement, however, -was very liberally interpreted by the agents of the Crown, who treated -it as a legal warrant for revolting cruelties, aimed at compelling the -stubborn to put themselves upon a jury. Food and drink were virtually -denied to them, a little mouldy bread and a mouthful of impure water -only being allowed them upon alternate days; and at a later date the -prisoner was slowly crushed to death under great weights “as heavy, yea -heavier than he can bear.” Brave men, guilty, or mayhap innocent, but -suspicious of a corrupt jury, preferred thus to die in torments, that -they might save to their wives and children the property which would -upon conviction have fallen to the Crown. The fiction was carefully -maintained that the victim of such barbarous treatment was not subjected -to “torture,” always illegal at common law, but merely to _peine forte -et dure_, a perfectly legal method of persuasion under the Statute of -1275. This procedure was not abolished until 1772; then only was an -accused man for the first time deprived of his right to "have his -law"—his claim to ordeal as the old method of proving his innocence. -Until that date then, a jury’s verdict was treated as though it were -still a new-fangled and unwarranted form of “test” usurping the place of -the ordeal, although the latter had been virtually abolished early in -the thirteenth century.[713] - ------ - -Footnote 711: - - Cf. _supra_, c. 24. - -Footnote 712: - - 3 Edward I. c. 12. - -Footnote 713: - - The Act 12 George III. c. 20, made standing mute equivalent to a plea - of _guilty_. A later act, 7 and 8 George IV. c. 28, made it equivalent - to a plea of _not guilty_. See Stephen, _Hist. Crim. Law_, I. 298. - ------ - -(3) _Attainder._ Coke in commenting on this passage draws a further -distinction between “conviction” which resulted immediately either from -a confession or from a verdict of guilty, and “attainder” which required -in addition a formal sentence by the judge. In his age, apparently, it -was the sentence of attaint which implied the forfeiture; looking as -usual at Magna Carta through seventeenth-century glasses, he seems -surprised to find “convicted” used where he would have written -“attainted.” Yet this distinction, if recognized at all in 1215, must -have been quite immaterial then. It was under the Tudor sovereigns that -the doctrine of the penal effects of attainder was fully elaborated. -When sentence was passed on a felon, a blight as it were fell -immediately upon him: his blood was henceforth in the eye of the law -impure, and his kindred could inherit nothing that was his or that came -through him. No one could be treated as a blood relation of one whose -entire blood was tainted; and the Crown naturally reaped the -profit.[714] - ------ - -Footnote 714: - - This fiction of corrupt blood was apparently based in part on a false - derivation of the word “attainder.” See _Oxford English Dictionary_. - ------ - -A series of statutes of the nineteenth century modified the harshness -with which this rule bore on the felon’s innocent relations;[715] and -finally the Forfeiture Act of 1870[716] abolished “corruption of blood” -and deprived the Crown completely of all interest in the estates of -felons, alike in escheats and in chattels. Thus the word “attainted” has -become practically obsolete, and the distinction insisted on by Coke has -ceased to have any importance in modern law. A criminal who is -fulfilling the term of his sentence is known, not as a man attainted, -but simply as a “convict,” the same word as was used in Magna Carta. - ------ - -Footnote 715: - - _E.g._ 54 George III. c. 145, and 3 and 4 William IV. c. 106, s. 10. - -Footnote 716: - - 33 and 34 Victoria, c. 23. - - - - - CHAPTER THIRTY-THREE. - -Omnes kydelli de cetero deponantur penitus de Tamisia, et de Medewaye, -et per totam Angliam, nisi per costeram maris. - - All kydells for the future shall be removed altogether from Thames and - Medway, and throughout all England, except upon the sea coast. - - -The object of this provision is open to no reasonable grounds of doubt; -it was intended to remove from rivers all obstacles likely to interfere -with navigation. The full importance of such a measure can only be -understood when the deplorable condition of the few roads which existed -in the Middle Ages is kept in view. The water-ways were the great -avenues of commerce; when these were blocked, the townsmen and traders -suffered loss, while those who depended on them for their necessaries, -comforts, and luxuries, shared in the general inconvenience. Magna Carta -intervened in the interests of all classes, and demanded the immediate -removal of obstructions which interrupted inland traffic. Only one class -of impediments indeed was mentioned, “kydells” (or fish-weirs), not -because of the purposes to which these were put, but because they were -the form of obstruction which called for repressive measures at the -moment. This word, whatever narrower technical meaning it may have borne -in later days, seems to have been used by the framers of Magna Carta in -a wide general sense, as applying to all fixed and bulky contrivances or -“engines” intended to catch fish, and likely to interfere with the free -passage of boats.[717] - ------ - -Footnote 717: - - The _Oxford English Dictionary_ defines it as “a dam, weir, or barrier - in a river, having an opening in it fitted with nets or other - appliances for catching fish,” and also as “an arrangement of - stake-nets on the sea-beach for the same purpose.” - -It has been gratuitously assumed that the motive for prohibiting these -“kydells” must have been of a similar kind to the motive for -constructing them; and that therefore the object of the present chapter -was to prevent the Crown or others from acquiring a monopoly of rights -of fishing to the exclusion of the public. Law courts and writers on -jurisprudence for many centuries uniformly endorsed this mistaken view, -and treated Magna Carta as an absolute prohibition of the creation of -“several” (or exclusive) fisheries in tidal waters.[718] Although this -legal doctrine has been frequently and authoritatively enunciated, it -rests undoubtedly on a historical misconception. The Great Charter -sought to protect freedom of navigation, not freedom of fishing; and -this is obvious from the last words of the chapter: kydells are to be -removed from Thames and Medway and throughout all England “_except upon -the sea-coast_.” It would have been a manifest absurdity to allow the -creation of monopolies of taking fish in the open seas, while insisting -on perfect freedom of fishing in rivers, the banks of which were private -property. The sense is quite clear: no objection was taken to “kydells,” -whatever they might be, so long as they did not interfere with -navigation. - ------ - -Footnote 718: - - Blackstone, _Commentaries_, IV. 424, declared that this chapter - “prohibited for the future the grants of exclusive fisheries.” Cf. - _e.g._ Thomson, _Magna Charta_, 214, and Norgate, _John Lackland_, - 217. See also Malcolmson _v._ O’Dea (1862), 10 _H. of L. Cas._, 593, - and Neill _v._ Duke of Devonshire (1882), 8 App. Ca. at p. 179,—cases - cited in Moore, _History and Law of Fisheries_, p. 13, where the - fallacy is exposed. - ------ - -The erroneous view, however, had much to excuse it, and acquired -plausibility from the circumstance that the destruction of obstacles to -the free passage of boats incidentally secured also free passage for -salmon and other migratory fish; and that _later_ statutes, when -legislative motives had become more complicated, were sometimes passed -with both of these objects in view. The change is well illustrated by a -comparison of the words of two statutes of 1350 and of 1472 -respectively. The first of these repeats the substance of this chapter -of Magna Carta, and thus explains its object:—“Whereas the common -passage of boats and ships in the great rivers of England be oftentimes -annoyed by the inhancing of gorces, mills, weirs, stanks, stakes, and -kydells.”[719] Here there is no allusion to fish or rights of fishing. -The later act, while confirming, under penalties, previous statutes for -the suppression of weirs, not only states its own intention as twofold, -namely, to protect navigation of rivers, and “also in safeguard of all -the fry of fish spawned within the same,” but retrospectively and -unwarrantably attributes a like double motive to Magna Carta.[720] - ------ - -Footnote 719: - - 25 Edward III., stat. 3, c. 4. - -Footnote 720: - - 12 Edward IV. c. 7. Apparently the earliest statute which refers to - weirs as causing injury to fish was one passed in 1402, namely, 4 - Henry IV. c. 11, see Moore, _Fisheries_, p. 175. - ------ - -So far as the Thames and Medway were concerned, this provision contained -nothing new. To the Londoners, indeed, the keeping open of their river -for trade was a matter of vital importance. The right to destroy all -_kydelli_ in the Thames and Medway had been purchased from Richard I. -for 1500 marks, and a further sum had been paid to John to have this -confirmed. The charter of Richard I. is dated 14th July, 1197; and that -of John, 17th June, 1199. Each king declared, in words practically -identical, that Hubert Walter, Archbishop of Canterbury, and others had -pointed out “that great detriment and discommodity hath grown to our -said city of London, and also to the said realm by occasion of the said -kydells.” Accordingly each charter declared that the king has “granted -and steadfastly commanded that all kydells that are in the Thames be -removed wheresoever they shall be within the Thames; also we have -quit-claimed all that which the Warden of our Tower of London was wont -yearly to receive from the said kydells. Wherefore we will and -steadfastly command that no warden of the said Tower, at any time -hereafter, shall exact anything of any one, neither molest nor burden -nor make any demand of any person by reason of the said kydells.” John’s -charter of 1199 went further than that of Richard, making it clear that -the prohibition referred to the Medway as well as to the Thames, and -granting the right to inflict a penalty of £10 upon anyone infringing -its provisions.[721] - ------ - -Footnote 721: - - It seems to have been generally assumed that these charters conferred - positive as well as negative privileges on the citizens of London; - that not merely were obstructions to navigation thereby prohibited in - their interests, but that wide rights of administration and - jurisdiction over the waters of the Thames were conferred on the city - authorities (rights which previous to 1197 had been exercised, it is - assumed, by the Constable of the Tower of London). See Noorthouck, - _New History of London_ (1773) p. 36, and Luffman, _Charters of - London_ (1793) p. 13. The latter says of Richard’s grant in 1197: “By - this charter the citizens became conservators of the river Thames.” - The _Patent Rolls_ of 33 Edward I.; 5 Edward III.; 8 Edward III., - _etc._; contain Commissions of Conservancy. See Moore, _ibid._, p. - 176. In 1393 the statute of 17 Richard II. c. 9 granted authority to - the Mayor of London to regulate weirs likely to destroy fish, and - generally to “conserve” the Thames from Staines downwards, along with - the Medway. - ------ - -Magna Carta merely confirmed, and extended to all rivers, a prohibition -already secured by the Londoners specially for their own river. The -provision was repeated in the reissues of Henry III. The citizens, -however, did not rest content with a clause in a general enactment, but -purchased for 5000 marks three new charters exclusively in their own -favour. One of these, dealing with kydells in Thames and Medway, was -issued by Henry on 18th February, 1227, in terms almost identical with -those of Richard and John.[722] - ------ - -Footnote 722: - - See _Rotuli Cartarum_, under the year 11 Henry III. - - - - - CHAPTER THIRTY-FOUR. - -Breve quod vocatur _Precipe_ de cetero non fiat alicui de aliquo -tenemento unde liber homo amittere possit curiam suam. - - The writ which is called _praecipe_ shall not for the future be issued - to anyone, concerning any tenement whereby a freeman may lose his - court. - - -In extorting from John a solemn promise to restrict the use of the -particular writ here referred to, the barons gained something of -infinitely greater value than a petty reform of court procedure; they -committed their enemy to a complete reversal of a line of policy -vigorously and consistently pursued for at least half a century. The -process by which the jurisdiction of the king’s courts was steadily -undermining that of the feudal courts was now to be suddenly arrested. -Magna Carta by this apparently inoffensive clause was grappling in -reality with an urgent political problem of the day, fraught with -tremendous practical issues alike for king and barons. This can only be -understood in connection with the technical details on which it hinges. - -I. _Royal Writs and the Feudal Jurisdictions._ The class of writs, -called from their initial word “Writs _praecipe_,” was a large one, and -freely used by the Crown for issuing peremptory orders of various kinds -to its officers and others. This provision of Magna Carta had special -reference to one type of these writs only, the so-called _praecipe quod -reddat_.[723] These were intended to inaugurate, before the king’s -justices, pleas for determining the ownership of property either by -battle or by grand assize—preferably the latter. They were called “Writs -of Right,” because they treated of questions of title, not merely -questions of possession. - ------ - -Footnote 723: - - The numerous varieties of writs _praecipe_ are arranged by Coke - (_Second Institute_, p. 40) in three groups, according to the nature - of the orders they were intended to convey, viz.:—(a) _praecipe quod - reddat_; (b) _quod permittat_; and (c) _quod faciat_. Those specially - referred to in this chapter are of the first type. - ------ - -The form of a _praecipe quod reddat_, as actually issued from the -Chancery of Henry II. (who invented it), is given by Glanvill, and its -terms illustrate the insidious methods by which the Crown encroached on -feudal jurisdictions.[724] The writ was directed to the sheriff, and -began bluntly:—“Command” (_praecipe_) A. “to give back” (_quod reddat_) -to B. a piece of ground there specified, or alternatively, “to explain -why he had not done so” (_ostensurus quare non fecerit_). The real -object does not, however, appear upon the surface. It was by no means -intended that the man to whom the command was issued, should abandon his -claim without discussion. He would naturally take the alternative -allowed him, namely, appear before the king’s justices and there “show -cause” why he had not obeyed the order, by proving (if he could) a -better title to the property in dispute than that alleged by the rival -claimant. The writ, which on the surface reads merely as a summary and -final command to hand over the estate to another, is really an “original -writ” commencing a litigation in the king’s court. One important effect -of its issue was that all proceedings instituted in inferior tribunals -must immediately stop. - ------ - -Footnote 724: - - The writ ran as follows:—_Rex vicecomiti salutem, Praecipe A. quod - sine dilatione reddat B. unam hidam terrae in villa illa, unde idem B. - queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum - per bonos summonitores quod sit ibi coram me vel Justiciariis meis in - crastino post octabas clausi Paschae apud locum illum, ostensurus - quare non fecerit. Et habeas ibi summonitores et hoc breve. Teste - Ranulpho de Glanvilla apud Clarendon._ See Glanvill, I. c. 6. - ------ - -The feudal lord, in whose court baron the plea would naturally have been -decided, was thus robbed by the king of his jurisdiction. With it, he -lost also authority over his tenants, and numerous fees and perquisites. -The writ _praecipe_ was thus mainly an ingenious device for “evoking” a -particular cause from the manorial court to the king’s court.[725] - ------ - -Footnote 725: - - Cf. Stubbs, _Const. Hist._, I. 576. - ------ - -Henry II., in inventing or systematizing the legal procedure known as -“the writ process,” because its leading feature was that it forbade any -action to be begun without a royal writ, had two objects in view. While -reforming by its instrumentality the entire administration of justice in -England, the king hoped by the same means, to destroy gradually the -feudal privileges of his magnates. He intended, step by step, to draw -into his own courts all pleas relating to land. Questions of property -were to be tried before his justices, by combat or, at the defendant’s -option, by the grand assize; questions of possession (without any -option) by the appropriate petty assize. The barons showed no desire to -dispute the Crown’s assumption of a monopoly over the petty assizes; -indeed they cordially acquiesced in this by the terms of chapter 18 of -the Charter. The grand assize was another matter; they refused to be -robbed of their right to determine, in their own courts baron, -proprietary actions between their own tenants. Indeed, for such -wholesale extension of the king’s jurisdiction over pleas of land, Henry -II. had absolutely no precedent. He had made the Crown strong and then -used its power for his own aggrandizement. The king’s courts had -increased their authority, as a distinguished American historian has -expressed it, “by direct usurpation, in derogation of the rights of the -popular courts and manorial franchises, upon the sole authority of the -king.”[726] - ------ - -Footnote 726: - - See Bigelow, _Hist. of Procedure_, 78. Glanvill, read between the - lines, contains admissions which support this view. Friend of - prerogative as he was, he shows consciousness of a distinction between - the proper and improper use of the royal jurisdiction. Thus in I. c. - 3, he speaks of the king’s courts as normally dealing with “pleas of - baronies” (_i.e._ litigations concerning Crown fiefs); in I. c. 5, he - speaks of what he evidently considers an abnormal expansion of this - jurisdiction to any plea anent a free tenement or fief, if the Crown - so desired,—that is, the Crown claimed an option, in circumstances - admitted to be abnormal, of deciding pleas as to fiefs held under - mesne lords. This distinction is identical with that on which the - present chapter of Magna Carta is based. - ------ - -Now, the chief instrument devised by Henry for effecting such -usurpations was precisely this particular form of the writ _praecipe_ -(or Writ of Right).[727] Tenants whose titles were challenged gladly -purchased such writs, as the only way to escape trial by combat; and -John frequently issued them to the prejudice of feudal lords, whose -jurisdiction was thus curtailed. The barons in 1215 considered this a -grievance; and Magna Carta in demanding its redress deliberately -attempted to arrest the process of royal usurpation. The tide must be -turned back; the system of feudal justice, now fast becoming obsolete, -must in its entirety be revived. Each freeman or baron must be left -without competition as the sole source of justice to his own tenants in -all pleas of land, unmolested by these new-fangled writs of right. It -was not intended, of course, to abolish completely the extensive and -useful class of writs _praecipe_; but merely to prevent the Crown using -them as an engine of encroachment upon manorial jurisdictions.[728] The -king might keep his own court and issue writs to his own tenants; but -let him respect the courts of others. For the future, such writs must -not be issued “concerning any tenement whereby a freeman may lose his -court.” Writs _praecipe_ might be freely used for any other purpose, but -not for this. This one purpose, however, was exactly what had specially -recommended it to the great king who had invented it. - ------ - -Footnote 727: - - The normal procedure seems to have included the following steps: (_a_) - a claimant in the court of the lord of the fief offers to prove by - battle a better title than the tenant in possession; (_b_) the tenant - applies to the king to have the issue decided by grand assize; (_c_) a - writ _praecipe quod reddat_ is then issued in the form given by - Glanvill, I. c. 6, (already cited) virtually forbidding the claimant - to proceed elsewhere than before the king; (_d_) a second writ follows - in the form given by Glanvill, II. c. 8, forbidding the lord “to hold - in his court the plea between the litigants M. and R. because M. the - tenant has put himself upon my assize.” Cf. _supra_, c. 18. - -Footnote 728: - - Cf. Bracton, folio 281. See also Bracton’s _Note Book_, case 1215, - where a certain writ _praecipe_ was held not to be struck at by Magna - Carta, since it did not take any man’s court away. - ------ - -The present chapter must, therefore, be regarded as containing one of -the most reactionary provisions of the entire Charter. The barons had, -at last, succeeded in compelling John to promise a complete reversal of -a central part of the deliberate policy of his father. - -Here, then, under the guise of a small change in legal procedure, was -concealed a notable triumph of feudalism over the centralizing policy of -the monarchy—a backward step, which, if given full effect to, might have -ushered in a second era of feudal turbulence such as had disgraced the -reign of Stephen. We are told on high authority that John’s -acknowledgment of "the claims of the feudal lord to hold a court which -shall enjoy an exclusive competence in proprietary actions"—was one -which “Henry II. would hardly have been forced into.”[729] That may well -be; but John had already more than once rejected this proposal with -violence. In 1215, he could no longer strive against the inevitable, and -agreed under compulsion to provisions which he had no intention to keep. -The concession, although insincere, was nevertheless an important one. -The substance of chapter 34 was repeated with some trivial verbal -alterations in all future issues of Magna Carta.[730] - ------ - -Footnote 729: - - Pollock and Maitland, I 151. - -Footnote 730: - - The version of 1216 speaks of a “free tenement,” where that of 1215 - spoke merely of a “tenement.” The addition makes no change, since in - no case could the king’s courts try pleas affecting the villeins of - mesne lords. Perhaps the object of the addition is to make it clear - that there was no interference with the king’s rights over the - holdings of his own villeins on royal demesne. - ------ - -II. _Influence of this Provision on later Legal Development._ One -important question still remains: Was this provision observed in -practice? The answer is partly Yes, but chiefly No. Its letter was -stringently enforced; but its spirit was evaded. (1) The Chancery, in -obedience to Magna Carta, ceased to issue this particular form of writ -in such a manner as to cause a freeman “to lose his court.” It was still -issued to Crown tenants; but strictly denied to all under-tenants, who -were thus left to find redress at the feudal court of the magnate from -whom they held their land.[731] The measure thus forced on the Crown in -the selfish interests of the baronage inflicted hardship on tenants of -mesne lords, in whose faces the doors of the king’s tribunals, opened to -them by Henry II., were once more closed in all pleas touching their -freeholds. In such cases the court baron of their lord was now their -only source of justice, and in that court they could not get the benefit -of the improved methods of royal procedure. In particular, the grand -assize was a royal monopoly. The magnates, indeed, desired to adopt it, -but this was rendered difficult by an obstacle which the Crown made the -most of.[732] They had difficulty in getting together twelve knights -willing to act as jurors; and they could not force them to give a sworn -verdict against their will. The king might compel; but a mesne lord -could only persuade. Men of the required status objected to the waste of -time, and dreaded the danger of being punished for false verdicts, -inseparable from the duty of serving on a grand assize. Whatever hopes -the barons may have entertained of overcoming such difficulties were -disappointed. In 1259 the Provisions of Westminster declared that -freeholders should not be compelled to swear against their will "since -no one can make them do this without the King’s warrant."[733] It was -the deliberate policy of Edward I. to exaggerate all such difficulties, -putting every obstacle in the way of private courts, until he reduced -their jurisdictions to sinecures.[734] - ------ - -Footnote 731: - - The writs, thus restricted so that only tenants _in capite_ could - obtain them, were thereafter known as writs _praecipe in capite_. - Under that name the writ appears in Coke’s version of the charter of - Henry III. (_Second Institute_, p. 38), and in the translation given - in the _Statutes at Large_ of the reissue of 1225. There is no - authority in any text of Magna Carta for the addition of the words _in - capite_, and the explanation of their presence in these versions must - be sought in the tendency of lawyers in an age long subsequent to 1215 - to re-edit Magna Carta in the technical language of their own day. - Coke emphasised the restriction of this remedy to Crown tenants. “No - man ought to have this writ out of the Chancery upon a suggestion, but - oath must be made, before the granting thereof, that the land is - holden of the king _in capite_,” (p. 38), and he illustrates what he - says by reference to two cases drawn from the reign of Edward I. - -Footnote 732: - - Such an attempt seems to have been made in 1207 by Walter de Lacy, - Earl of Ulster, who set up in his Irish fief what is described as - _nova assisa_, against which John protested. See _Rot. Pat._, I. 72, - for writ dated 23rd May, 1207. In one case at least, exceptional it is - true, John acquiesced in grand assizes being held in feudal courts. On - 4th May, 1201, he granted licence to Hubert Walter (and his - successors) to hold them for his tenants in gavelkind, a tenure - peculiar to Kent. See _New Rymer_, I. 83. - -Footnote 733: - - See article 18 (_Select Charters_, p. 404). Other articles show a - similar strong bias against seignorial justice. Cf. chapter 29 of the - Petition of the Barons (_Select Charters_, 386), and the comment of - Pollock and Maitland, I. 182: “The voice of the nation, or what made - itself heard as such, no longer, as in 1215, demanded protection for - the seignorial courts.” - -Footnote 734: - - There was, however, a partially successful attempt made to revive - feudal jurisdictions as late as the reign of Edward III. See Stubbs, - _Const. Hist._, II. 638-9. - -(2) While the letter of Magna Carta was strictly kept, its spirit was -evaded. It was impossible to give loyal effect to an enactment which -went directly counter to the whole stream of progress. Manorial justice -was falling fast into disrepute and abeyance, while royal justice was -becoming more efficient and more popular, and was soon to rid itself of -all competitors and obtain a monopoly. Under-tenants, deprived of access -to the king’s court by the direct road of the writ _praecipe_, sought -other and more tortuous modes of entrance. Legal fictions were devised. -The great problem was how to evade Magna Carta without openly infringing -it. The king’s justices and would-be litigants in the king’s courts -formed a tacit alliance for this end, but had to proceed by slow and -wary steps, in the teeth of bitter opposition from the powerful owners -of seignorial courts. The process adopted consisted of a series of -formal changes in the technical procedure of the king’s courts. Its key -lies in the ingenious original (or originating) writs invented by Crown -lawyers, which really effected one thing while professing to effect -something quite different. These new writs were known as writs of entry -and came half-way between writs of right (or writs _praecipe_) and the -petty assizes; half-way between writs commencing actions dealing with -title (and therefore attacked by chapter 34 of Magna Carta) and writs -dealing with possession (and therefore welcomed by chapter 18). Writs of -entry were thus, from the point of view of the magnate with his private -court, wolves in sheep’s clothing. They professed to determine a -question of _possession_, but really decided a question of _ownership_. -At first the pleas to which they could be applied were few and special. -Steadily new forms of action were devised to cover almost every -conceivable case. The process of evolution was a long one, commencing -soon after 1215, and virtually concluding with chapter 29 of the Statute -of Marlborough, or rather with the liberal construction which Crown -lawyers placed upon that statute in the following reign. - -Edward I., at the height of his power, and eager to set his house in -order, shrank from an open breach of the Great Charter, gladly adopting -subtle expedients to cheat mesne lords out of the rights secured to them -by the present chapter. In Edward’s reign, then, the legal machinery -invented for this purpose was brought to perfection, so that thereafter -no action relating to freehold was ever again tried in the courts baron -of the magnates. All such pleas were, in direct violation of the spirit -of Magna Carta, decided in the courts of the king.[735] - ------ - -Footnote 735: - - Technical details are admirably given by Pollock and Maitland, II. - 63-7. The whole family of writs were known as “writs of entry _sur - disseisin_”; and these were applied to still wider uses after 1267 on - the authority of the Statute of Marlborough, as “writs of entry _sur - disseisin_ on the _post_.” See also Maitland, Preface to _Sel. Pleas - in Manorial Courts_, p. lv. - ------ - -The claimant, then, had no need to infringe the prohibition against the -writ _praecipe_ when he could obtain another writ, equally effective, -under a different name. A writ of entry was, indeed, to a peaceable -plaintiff, infinitely preferable to a writ _praecipe_, which could only -be issued to one prepared to _offer_ battle, the option of accepting -lying with his adversary. Crown tenants, even, who could obtain the writ -_praecipe_, came to prefer the more modern substitute; and clause 34 of -Magna Carta was thereafter virtually obsolete. - -One of the indirect effects of the clause was of a most unfortunate -nature. The necessity it created for effecting reforms by a tortuous -path did great and lasting harm to the form of English law. Legal -fictions have indeed their uses, by evading technical rules of law in -the interests of substantial justice. The price paid for this relief, -however, is usually a heavy one. Complicated procedures and underhand -expedients have to be invented, and these lead in turn to new legal -technicalities of a more irrational nature than the old ones. It would -have been better in the interests of scientific jurisprudence if so -desirable a result could have been effected in a more straightforward -manner. The authors of Magna Carta must bear the blame.[736] - ------ - -Footnote 736: - - Cf. Pollock and Maitland, I. 151, and _Sel. Pleas in Manorial Courts_, - already cited. - - - - - CHAPTER THIRTY-FIVE. - -Una mensura vini sit per totum regnum nostrum, et una mensura cervisie, -et una mensura bladi, scilicet quarterium Londonie, et una latitudo -pannorum tinctorum et russetorum et halbergectorum, scilicet due ulne -infra listas; de ponderibus autem sit ut de mensuris. - - Let there be one measure of wine throughout our whole realm; and one - measure of ale; and one measure of corn, to wit, “the London quarter”; - and one width of cloth (whether dyed, or russet, or halberget), to - wit, two ells within the selvedges; of weights also let it be as of - measures. - - -This chapter re-enacted an important ordinance of Richard I., usually -known as the Assize of Measures, but sometimes as the Assize of Cloth. -That ordinance, the exact date of which is 20th November, 1197, was, -according to modern conceptions of the proper sphere of government, -partly commendable and partly ill-advised. It showed, on the one hand, a -praiseworthy desire to set up definite standards of weights and -measures, uniform throughout all parts of England. It strove thus to -overcome the serious inconvenience experienced by traders, who met with -varying standards as they moved with their wares from place to place. -What was of more importance, the assize sought to obviate also the -frauds frequently perpetrated upon buyers by unscrupulous merchants -under the shelter of ambiguous weights and measures. The London quarter -must, therefore be used everywhere for corn; and one measure for wine or -beer. So far good. On the other hand, the ordinance of Richard went much -further than modern ideas of _laissez faire_ would tolerate. In -particular, legitimate freedom of trade was interfered with by the cloth -regulations reported by Roger of Hoveden.[737] No cloth, he tells us, -was to be woven except of a uniform width, namely, “two ells within the -lists.”[738] - ------ - -Footnote 737: - - R. Hoveden, IV. 33-4. - ------ - -Footnote 738: - - At a later date cloth of an alternative standard width was also - legalized, viz., of one yard between the “lists.” Hence arose the - distinction between “broadcloth” (that is, cloth of two yards) and - “streits” (that is, narrow cloth of one yard). (See Statute I Richard - III. c. 8.) The word “broadcloth” has, long since, changed its - meaning, and now denotes material of superior quality, quite - irrespective of width. See _Oxford English Dictionary_, under - “Broadcloth.” - ------ - -Dyed cloths, it was provided, should be of equal quality through and -through, as well in the middle as at the outside. Merchants were -prohibited from darkening their windows by hanging up, to quote the -quaint language of the ordinance, “cloth whether red or black, or -shields (_scuta_) so as to deceive the sight of buyers seeking to choose -good cloth.” Coloured cloth was only to be sold in cities or important -boroughs. Here we have, apparently, a sumptuary law meant to ensure that -the lower classes went in modest grey attire. Six lawful men were to be -assigned to keep the Assize in each county and each important borough. -These custodians of measures must see that no goods were bought or sold -except according to the standards; imprison those found guilty of using -other measures, whether by their own admission or by failure in the -ordeal (_confessus vel convictus_); and seize the chattels of defaulters -for the king’s behoof. If the _custodes_ performed their duties -negligently they were to suffer amercement of their chattels.[739] -Richard’s Assize of Measures was supplemented in 1199 by John’s Assize -of Wine, which tried to regulate the price of wines of various -qualities,[740] an attempt not repeated in Magna Carta. - ------ - -Footnote 739: - - Cf. _supra_, c. 20, for “amercements,” and _supra_, c. 24, for - “custodes” of pleas (or coroners). - -Footnote 740: - - See R. Hoveden, IV. 100. - ------ - -The same author who gives us the text of the ordinance of 1197 tells us -also that its terms were found to be too stringent, and had to be -frequently relaxed in practice.[741] This was done in 1201. The king’s -justices, we are told, wished to seize the cloth of certain merchants on -the ground that it was less than the legal width. They compromised, -however, by accepting a great sum of money “to the use of the king and -to the damage of many.” Thus Hoveden denounces what he regards as an -unlawful bargain between the justices and the traders for injuring -buyers by evading the strict letter of the ordinance. - ------ - -Footnote 741: - - See Hoveden, IV. 172, and Stubbs, _Const. Hist._, I. 616. - ------ - -Many examples of evasion may be found in the _Pipe Rolls_ both before -and after Magna Carta. The justices, indeed, were usually more bent on -collecting fines for its breach than on enforcing the Assize. In 1203 -two merchants of Worksop were amerced each in half a mark for selling -wine contrary to the Assize, while the custodians of measures of the -borough were also mulcted in one mark for performing their duty -negligently—an exact illustration of the words of the ordinance.[742] In -the same year a fine of one mark was imposed on certain merchants “for -stretching cloth,” in order, presumably, to bring it to the legal -width.[743] Merchants frequently paid heavy fines to escape the -ordinance altogether.[744] - ------ - -Footnote 742: - - See _Pipe Roll_, 4 John, cited Madox, I. 566. - -Footnote 743: - - See _Ibid._ - -Footnote 744: - - In 1203 the men of Worcester paid 100s. “_ut possint emere et vendere - pannos tinctos sicut solebant tempore Regis Henrici_”; and the men of - Bedford, Beverley, Norwich and other towns made similar payments. See - _Pipe Roll_, 4 John, cited Madox, I. 468-9. - ------ - -When the barons in 1215 insisted upon John enforcing his brother’s -ordinance in all its rigour, they took a step in their own interests as -buyers, and against the interests of the trade guilds as sellers. -Although this provision was repeated in all subsequent charters, it -seems never to have produced much effect. The difficulty of enforcing -such provisions in their strictness was great, and evasion continued. -One example may suffice. In the second year of Henry III.[745] the -citizens of London paid 40 marks that they might not be questioned for -selling cloth less than two yards in width. Here is an illustration of -the practice of the judges to which Hoveden had objected, and which -Magna Carta had apparently failed to put down. Sometimes, however, the -provisions of Richard’s Assize of Measures and of John’s Assize of Wine -were still enforced. In 1219 a Lincolnshire parson, with a liberal -conception of the scope of his parochial duties, had to pay 40s. for -wine sold _extra Assisam_.[746] Parsons, apparently, might engage in -trade, but only if they conformed to the usual regulations. - ------ - -Footnote 745: - - See _Pipe Roll_, cited Madox, I. 509. - -Footnote 746: - - _Pipe Roll_, 3 Henry III., cited Madox, I. 567. - - - - - CHAPTER THIRTY-SIX. - -Nichil detur vel capiatur de cetero pro brevi inquisicionis de vita vel -membris, sed gratis concedatur et non negetur. - - Nothing in future shall be given or taken for a writ of inquisition of - life or limbs, but freely it shall be granted, and never denied. - - -This chapter has an important bearing upon trial by combat, and none at -all upon _habeas corpus_, to which it is often supposed to be closely -related. The particular writ upon which such emphasis is here laid had -been invented by Henry II. to obviate the judicial duel in certain -cases, by allowing the accused man virtually to refer the question of -his guilt or innocence to the sworn verdict of his neighbours. - -I. _Trial by Combat prior to the Reign of John._ The crucial moment in -judicial proceedings during the Middle Ages arrived, as has already been -explained,[747] when the “test” or “trial” (_lex_) appointed by the -court was attempted by one or both of the litigants. The particular form -of proof to which the warlike Norman barons were attached was the -_duellum_, and it was only natural that such of the old Anglo-Saxon -aristocracy as associated with them on terms of equality should adopt -their prejudices. Hence “combat” became the normal mode of deciding all -serious disputes among the upper classes. Even from the first, however, -it seems not to have been competent for property of less than 10s. in -value,[748] and it soon came to be specially reserved for two classes of -disputes—civil pleas instituted by writ of right, and criminal pleas -following on “appeal.” The present chapter is concerned with the latter -only. - ------ - -Footnote 747: - - See _supra_, pp. 103-6. - -Footnote 748: - - See _Leges Henrici primi_, c. 69, §§ 15-16. - ------ - -An “appeal” in this connection was entirely different from the modern -appeal from a lower to a higher court. It was a formal accusation of -treason or felony made by a private individual on his own initiative, -and was usually followed by judicial combat between the appellant and -appellee, each of whom fought in person. Such a right was necessary in -an age when the government had not yet assumed a general responsibility -for bringing ordinary criminals to justice, or was at least so lax and -spasmodic in performing that function as to leave many wrongdoers -unpunished. Appeal followed by battle was probably in its origin a form -of legal procedure substituted for the older blood-feud.[749] Those who -had suffered wrong would be more readily dissuaded from their vendetta -if they were allowed instead the right of judicial duel under fair -conditions laid down by the court. The Norman trial by combat was thus a -survival from an earlier stage of society when the wronged person, not -the magistrate, had been the avenger of crime; and this explains several -peculiarities—why, for example, when the accused had uttered “that -hateful word craven,”[750] thus confessing himself vanquished and -deserving a perjurer’s fate, the victorious accuser was entitled to his -vengeance, even in the face of a royal pardon. When Henry of Essex, -constable and standard-bearer of Henry II., accused by his enemy, Robert -de Montfort, in 1163, had been worsted in the combat, the royal favour -could not shield him, though apparently the king’s connivance enabled -him, by renouncing his possessions and becoming a monk, and therefore -dead in law, to escape actual death by hanging.[751] It would seem that -at an early date the whole procedure had resembled even more closely a -legalized private revenge, since the appellant who had vanquished his -foe was allowed personally to put him to death. "The ancient usage was, -so late as Henry IV.’s time, that all the relations of the slain should -drag the appellee to the place of execution."[752] - ------ - -Footnote 749: - - Cf. _supra_, c. 20. - -Footnote 750: - - “_Illud verbum odiosum quod recreantus sit._” Bracton, _folio_ 153. - -Footnote 751: - - See Jocelyn of Brakelond, pp. 50-2. - -Footnote 752: - - Blackstone, _Commentaries_, IV. 316. - ------ - -The evils of trial by combat are obvious. From the first it was dreaded -and avoided by the traders of the boroughs, who paid heavily for -charters of exemption. Their aversion spread to the higher classes, and -was shared by Henry II. To that great statesman, endowed with the ardent -instincts of a reformer, despising utterly all obsolete and irrational -modes of procedure, and quite devoid of reverence for tradition, trial -by combat was entirely abhorrent. He would gladly have abolished it out -and out if he had dared; but he prudently followed the more subtle -policy of slowly undermining its vitality. For this purpose he used four -expedients, which are of great interest in respect that they throw light -on the process by which trial by jury superseded trial by battle.[753] -(1) Every facility was afforded the parties to a civil suit who were -willing to forego the _duellum_ voluntarily. Henry placed at their -disposal, as a substitute, a procedure which had by his ancestors been -specially reserved for the service of the Crown. Litigants might refer -their rival claims to the oath of a picked body of local neighbours: the -old recognitors thus developed into the _jurata_. This course was -possible, however, only where both parties consented, and it had many -features in common with a modern arbitration. (2) In pleas relating to -the title and possession of land Henry went further, granting to the -defendant the option of a peaceful settlement even when the claimant -preferred battle. The men to whose oaths such cases were referred were -known as an _assisa_, not a _jurata_, since both litigants had not -consented. The three various groups of assizes welcomed by the barons in -chapter 18 have already been discussed. The _assisa_, like the _jurata_, -could be applied only to civil pleas. (3) Attempts were made to -discourage trial by combat in criminal pleas also by discouraging the -exercise of the right of private “appeal,” its natural prelude. The -corporate voice of the accusing jury was made as far as possible to -supersede the individual complaint of the injured party offering battle. -Only the near blood relation, or the liege lord, of a murdered man was -allowed to prove the offender’s guilt by combat; while a woman’s right -of appeal was kept within narrow limits.[754] (4) A wide field was still -left for private appeal and battle; but Henry endeavoured to narrow it -by a subtle device. In appeals of homicide, where the accusation was not -made _bona fide_, but maliciously or without probable cause, the -appellee was afforded a means of escaping the _duellum_. He might apply -for the writ which forms the subject of this chapter. - ------ - -Footnote 753: - - Cf. _supra_, 107–9, and also 158-163. - -Footnote 754: - - Some particulars are given under c. 54. - ------ - -II. _The Writ of Life and Limb._ The writ here referred to, better known -to medieval England as the writ _de odio et atia_,[755] was intended to -protect from duel men unjustly appealed of homicide. Rash or malicious -accusations might be raised by turbulent knights, who made fighting -their pastime, in order to gratify a grudge against traders or other men -of peace, and many an appealed man was glad to purchase from the king -permission to escape by assuming the habit and tonsure of a monk;[756] -but Henry desired to save innocent men from the risk of failure in the -_duellum_ without this subterfuge. If the accused asserted that his -appellant acted “out of spite and hate” (_de odio et atia_), he might -purchase from the royal chancery a writ known by that name, which -referred the preliminary plea thus raised to the verdict of a sworn body -of twelve recognitors drawn from his own locality. If his neighbours -upheld the plea all further proceedings on the appeal were quashed: the -_duellum_ was avoided.[757] A similar privilege was afterwards extended -to all those guilty of homicide in self-defence, or of homicide by -misadventure, not of deliberate murder.[758] Soon every man appealed of -murder, whether guilty or not, alleged as a matter of course that he had -been accused groundlessly and maliciously, mere “words of common form.” -This expansion of the writ’s sphere of usefulness was accompanied by -another change. The main issue of guilt or innocence, not merely the -preliminary pleas, came to be determined by the neighbours’ -verdict,[759] which, whether for or against the accused, was treated as -final. No further proceedings were necessary: none were allowed. The -_duellum_ had at last been successfully elbowed aside, although it was -not abolished until 1819.[760] - ------ - -Footnote 755: - - In identifying the writ spoken of by Magna Carta as that “of life and - limbs” with the well-known writ _de odio et atia_, most authorities - rely on a passage in Bracton (viz.: _folio_ 123). There is still - better evidence. The Statute of Westminster, II. c. 29, ordains: “Lest - the parties appealed or indicted be kept long in prison, they shall - have a writ _de odio et atia_ like as it is declared in Magna Carta - and other statutes.” Further, in 1231 twelve jurors who had given a - verdict as to whether an appeal was false, were asked _quo waranto - fecerunt sacramentum illud de vita et membris_, without the king’s - licence. See Bracton’s _Note Book_, case 592. - ------ - -Footnote 756: - - Madox, I. 505, has collected instances. - ------ - -III. _Subsidiary Uses of the Writ._ This inquest of life and limb, -devised as a means of substituting a sworn verdict for the _duellum_ in -cases of homicide, has often been claimed as the direct antecedent of, -if not as identical with, the procedure which in the seventeenth century -became so valuable a bulwark of the subject’s liberty, under the name of -_habeas corpus_. This is a mistake; the modern writ of _habeas corpus_ -was developed out of an entirely different writ, which had for its -original object the safe-keeping of the prisoner’s body in gaol, not his -liberation from unjust confinement.[761] - ------ - -Footnote 757: - - Cf. Pollock and Maitland, II. 585-7, and Thayer, _Evidence_, 68. - -Footnote 758: - - It was extended in another direction also: some of the feudal courts - adopted a similar procedure in false appeals (although the king - objected to their doing so without royal licence). Inquests were held - shortly after the abolition of ordeal (1215) in the court of the Abbot - of St. Edmund. See Bracton’s _Note Book_, case 592. - -Footnote 759: - - See Pollock and Maitland, II. 586. - -Footnote 760: - - 59 George III. c. 46. - -Footnote 761: - - The early history of _habeas corpus_ is traced by Prof. Jenks in a - learned and interesting article in the _Law Quarterly Review_, VIII. - 164. The writ _de odio_ was obsolete at a date prior to the invention - of the _habeas corpus_. - ------ - -The opinion generally though erroneously held, is not without excuse; -for the writ mentioned by Magna Carta, besides effecting its main -purpose, was put to another and subsidiary use, which bears a -superficial resemblance to that served by the _habeas corpus_ of later -centuries. Considerable delay might occur between the appellee’s -petition for the writ of inquisition and the verdict upon it. In the -interval, the man accused of murder had, in the normal case, no right to -be released on bail, a privilege allowed to those suspected of less -grave crimes. This was hard in cases where the accused was the victim of -malice, or guilty only of justifiable homicide. Prisoners, placed in -such a plight, might purchase from the Crown, always ready to accept -fees in a worthy cause, royal writs which would save them from -languishing for months or years in gaol. The writ best suited for this -purpose was that _de odio et atia_, since it was already applicable to -presumably innocent appellees for another purpose.[762] - ------ - -Footnote 762: - - Cf. Brunner, _Entstehung der Schwurgerichte_, p. 471. - ------ - -As trial by combat became rapidly obsolete, the original purpose of the -writ was forgotten, and its once subsidiary object became more -prominent. Before Bracton’s day (possibly even before the date of Magna -Carta) this change had taken place: the writ had come to be viewed -primarily as an expedient for releasing upon bail homicides _per -infortunium_ or _se defendendo_. Bracton, in giving the form of the -writ,[763] declares it to be iniquitous that innocent men accused of -homicide should be long detained in prison; therefore, he tells us, an -inquisition is wont to be made at the request of sorrowful -friends—whether the accusation is _bona fide_ or has been brought _de -odio et atia_. This pleasing picture of a king moved to pity by the -tearful friends of accused men scarcely applies to John, who listened -only to suitors with long purses which they were ready to empty into his -exchequer. The writs which liberated homicides had become a valuable -source of revenue. Sheriffs were frequently reprimanded for releasing -prisoners on bail without the king’s warrant, but, in spite of heavy -amercements, they continued their irregularities, either through favour -to individuals or in return for bribes. Thus, in 1207, Peter of -Scudimore paid to the exchequer a fine of 10 marks for setting homicides -free upon pledges, without warrant from the king or his justices.[764] -In that year, John repeated his orders, strictly forbidding manslayers -to be set free upon bail, unless by royal command, until they had -received judgment in presence of the king’s justices.[765] - ------ - -Footnote 763: - - See _folio_, 123. - -Footnote 764: - - See _Pipe Roll_, 8 John, cited Madox, I. 566. - -Footnote 765: - - See _Rot. Pat._, I. 76, cited Madox, I. 494. The date is 8 November, - 1207. - ------ - -To John, then, the excessive and arbitrary fees to be received for this -writ, constituted its greatest merit; whereas the barons claimed, as -mere matter of justice, that it should be issued free of charge to all -who needed it. John’s acceptance of their demands, contained in the -present chapter, was repeated in all reissues, and apparently observed -in practice. The procedure during the reign of Henry III. is described -by Bracton in a passage already cited. After the writ _de odio_ had been -received, an inquest, he tells us, must be held speedily, and if the -jury decided that the accusation had been made maliciously, or that the -slaying had been committed in self-defence or by accident, the Crown was -to be informed of this. Thereafter, from the chancery would be issued a -second writ, the form of which is also given by Bracton (known in later -days as the writ _tradias in ballium_) directing the sheriff, on the -accused finding twelve good sureties of the county, to “deliver him in -bail to those twelve” till the arrival of the justices. Such writs, -however, if in one sense “freely” issued, had always to be paid for. A -certain Reginald, son of Adam, when accused in 1222, offered one mark to -the king for a verdict of the three neighbouring counties (it was a -Lincolnshire plea), as to whether the accusation was made because of -“the ill-will and hate” (_per odium et atiam_) which William de Ros, -appellant’s lord, bore to Reginald’s father “_vel per verum -appellum_.”[766] - ------ - -Footnote 766: - - See Bracton’s _Note Book_, case 134, and cf. case 1548. - ------ - -A long series of later statutes enforced or modified this procedure. -These have been interpreted to imply frequent changes of policy, -sometimes abolishing and sometimes reintroducing the writ and the -procedure which followed it.[767] This is a mistake; the various -statutes wrought no radical change, but merely modified points of -detail; sometimes seeking to prevent the release of the guilty on bail, -and sometimes removing difficulties from the path of the innocent. The -Statute of Westminster, I., for example, after a preamble which -animadverted on the manner in which sheriffs impannelled juries -favourable to the accused, provided that inquests “shall be taken by -lawful men chosen out by oath (of whom two at the least shall be -knights) which by no affinity with the prisoners nor otherwise are to be -suspected.”[768] The Statute of Gloucester, on the other hand, ordered -the strict confinement, pending trial, of offenders whose guilt was -apparent.[769] The Statute of Westminster, II. once more favoured -prisoners, providing by chapter 12 for the punishment of false -appellants or accusers, and by chapter 29 that “lest the parties -appealed or indicted be kept long in prison, they shall have a writ of -_odio et atia_, like as it is declared in Magna Carta and other -Statutes.”[770] - ------ - -Footnote 767: - - Stephen, _Hist. Crim. Law_, I. 242 (following Foster, _Crim. Cases_, - 284–5), considers that it was abolished by 6 Edward I., stat. 1, c. 9. - Coke, _Second Institute_, 42, thought it was abolished by 28 Edward - III. c. 9 (which, however, seems not to refer to this at all), and - restored by 42 Edward III. c. 1 (abolishing all statutes contrary to - Magna Carta). Coke, _Ibid._, and Hale, _Pleas of the Crown_, II. 148, - considered that the writ was not obsolete in their day. Cf. Pollock - and Maitland, II. 587, n. - -Footnote 768: - - 3 Edward I. c. 11. - -Footnote 769: - - 6 Edward I., stat. 1, c. 9. - -Footnote 770: - - 13 Edward I. cc. 12 and 29. - ------ - -The writ in question was in use in the year 1314,[771] and seems never -to have been expressly abolished, but to have sunk gradually into -neglect, as appeals became obsolete and commissions of gaol delivery -were more frequently held. - ------ - -Footnote 771: - - See _Rot. Parl._, I. 323. - ------ - -IV. _Later History of Appeal and Battle._ The right of private -accusation was restricted only, not abolished, by Henry II. and his -successors. It could not be denied to any injured man, who was not -suspected of abusing his right. Prosecutions in the king’s name by way -of indictment and jury trial supplemented, without superseding, private -prosecutions by way of appeal and battle. The danger of a second -prosecution might hang over the head of an accused man after he had -“stood his trial” and been honourably acquitted. It was unfair that he -should be kept in such suspense for ever; and, accordingly, the Statute -of Gloucester provided that the right of appeal should lapse unless -exercised within year and day of the commission of the offence.[772] To -ensure that the accused should escape all risk of a double prosecution -for the same crime, it was necessary that the Crown should supplement -the provisions of this act by delaying to prosecute until the year and -day had expired. This rule was followed in 1482. Such immunity from -arraignment at the king’s suit for the space of twelve months (combined -with the provisions of the Statute of Gloucester) would undoubtedly have -obviated the possibility of two trials for one offence; but it produced -a worse evil of a different kind, by facilitating the escape of -criminals from justice. After experience of its pernicious effects, this -rule was condemned by the act of parliament which instituted the Star -Chamber.[773] - ------ - -Footnote 772: - - 6 Edward I. c. 9. Appeals were extremely frequent towards the close of - the Plantagenet period, especially in the days of “the Lords - Appellant.” The proceedings which followed on appeal sometimes took - place before the Court of the Constable and Marshal and sometimes - before Parliament. In neither case were they popular. One of the - charges brought against Richard II. by the Parliament which deposed - him, was that “in violation of Magna Carta” (that is, probably, of - chapter 39) persons maliciously accused of treasonable words were - tried before the constable and marshal, and although they might be - “old and weak, maimed or infirm,” yet compelled to fight against - appellants “young, strong, and hearty.” See _Rot. Parl._, III. 420, - cited Neilson, _Trial by Combat_, 193. On the other hand, the Statute - 1 Henry IV. c. 14 provided that no appeals should in future be held - before Parliament, but only before the Court of the Constable and - Marshal. - -Footnote 773: - - See 3 Henry VII. c. 1, s. 11. This statute emphasized how the injured - party, with the right of appeal, was “oftentimes slow and also agreed - with, and by the end of the year all is forgotten, which is another - occasion of murder.” - ------ - -This remedied the more recent evil, but revived the old injustice; the -same statute enacted that acquittal should not bar the right of appeal -of the wife or nearest heir of a murdered man. Thus, once again, a man -declared innocent by a jury might find himself still exposed to a second -prosecution. This unjust anomaly remained without formal redress until -the nineteenth century; and in 1817 the British public was startled to -find that a long-forgotten legal procedure of the dark ages still formed -part of the law of England. The body of a Warwickshire girl, Mary -Ashford, was discovered in a pit of water under circumstances which -suggested foul play. Suspicion fell on Abraham Thornton, who had been in -her company on the night when she disappeared. After indictment and -trial at Warwick Assizes on a charge of rape and murder, he was -acquitted. The girl’s eldest brother, William Ashford, was not satisfied -by what was apparently a perfectly honest verdict. He tried to secure a -second trial, and with this object claimed the ancient right of appeal -of felony, which the judges did not see their way to refuse. Ashford’s -attempt to revive this obsolete procedure was met by Thornton’s revival -of its equally obsolete counterpart. Summoned before the judges of -King’s Bench, he offered to defend himself by combat, throwing down as -“wager of battle” a glove of approved antique pattern. The judges had to -admit his legal right to defend himself against the appeal “by his -body,” and Thornton thus successfully foiled the attempt to force him to -a second trial, as the court never contemplated the possibility of a -medieval judicial combat being actually fought in the nineteenth -century. The appeal was withdrawn and the proceedings terminated.[774] - ------ - -Footnote 774: - - See _Ashford v. Thornton_, 1 B. and Ald. 405-461. - ------ - -The unexpected revival of these legal curiosities of an earlier age led -to their final suppression. In 1819 a Statute was passed abolishing -proof by battle alike in criminal and in civil pleas; and the right of -appeal fell with it.[775] - ------ - -Footnote 775: - - See 59 George III. c. 46. - - - - - CHAPTER THIRTY-SEVEN. - -Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per -burgagium, et de alio terram teneat per servicium militare, nos non -habebimus custodiam heredis nec terre sue que est de feodo alterius, -occasione illius feodifirme, vel sokagii, vel burgagii; nec habebimus -custodiam illius feodifirme, vel sokagii, vel burgagii, nisi ipsa -feodifirma debeat servicium militare. Nos non habebimus custodiam -heredis vel terre alicujus, quam tenet de alio per servicium militare, -occasione alicujus parve serjanterie quam tenet de nobis per servicium -reddendi nobis cultellos, vel sagittas, vel hujusmodi. - - If anyone holds of us by fee-farm, by socage, or by burgage, and holds - also land of another lord by knight’s service, we will not (by reason - of that fee-farm, socage, or burgage,) have the wardship of the heir, - or of such land of his as is of the fief of that other; nor shall we - have wardship of that fee-farm, socage, or burgage, unless such - fee-farm owes knight’s service. We will not by reason of any petty - serjeanty which anyone may hold of us by the service of rendering to - us knives, arrows, or the like, have wardship of his heir or of the - land which he holds of another lord by knight’s service. - - -By these provisions the Charter reverts once more to the subject of -wardship, laying down three rules which will be better understood when -their sequence is somewhat altered, the second being taken first. - -(1) _Ordinary wardship._ The reason for claiming wardship from lands -held in chivalry, namely, that a boy tenant could not perform military -service, did not apply to fee-farm, to socage, or to burgage. There was -much looseness of usage, however; and of this John took full advantage. -The Charter stated the law explicitly; wardship was not due from any -such holdings, except in the somewhat anomalous cases where lands in -fee-farm expressly owed military service.[776] As petty serjeanties -(although mentioned in the present chapter in a different connection) -are not expressly said to share this exemption, it may be inferred that -the barons admitted John’s wardship over them, just as in the case of -great serjeanties. In Littleton’s time, the law had been changed. Petty -serjeanties were then exempt.[777] - ------ - -Footnote 776: - - Cf. _supra_, pp. 66-70, and 75-7. - -Footnote 777: - - II. viii. s. 158. - ------ - -(2) _Prerogative wardship._ When a tenant-in-chivalry died leaving two -separate military fiefs held of different mesne lords, each of these -lords enjoyed, during the minority, wardship over his own fief. This was -perfectly fair to all parties; but if the ward held one estate of the -Crown, and another of a mesne lord, the king claimed wardship over both; -and that, too, even when the Crown fief was of small value.[778] Such -rights were known as “prerogative wardship,” and thus limited, were in -1215 perfectly legal, however inequitable they may now seem. - -Footnote 778: - - Cf. Glanvill, VII. c. 10. “When any one holds of the king _in capite_ - the wardship over him belongs exclusively to the king, whether the - heir has any other lords or not; because the king can have no equal, - much less a superior.” - ------ - -(_a_) _Fee-farm, socage, and burgage._ John, however, pushed this right -further, and exercised prerogative wardship over fiefs of mesne lords, -not merely by occasion of Crown fiefs held in chivalry, but also by -occasion of Crown fiefs held by any other free tenure. It was outrageous -thus to claim prerogative wardship in respect of fee-farm, socage, or -burgage lands, which were themselves exempt from ordinary wardship. John -accordingly was made to promise amendment.[779] - ------ - -Footnote 779: - - Glanvill, VII. c. 10, had laid it down that burgage tenure could not - give rise to prerogative wardship. - ------ - -(_b_) _Petty Serjeanties_[780] were in a slightly different position. -Although Magna Carta did not abolish the Crown’s rights of ordinary -wardship over these, it forbade that that should form an occasion of -prerogative wardship. The king might enjoy the custody of his own fief -if he pleased, but not of the wider fiefs of others on that -pretext.[781] - ------ - -Footnote 780: - - See _supra_, p. 68. - -Footnote 781: - - See Bracton, _folio_ 87 b. The _Note Book_, case 743, contains a good - illustration. The motive for these restrictions was clearly to prevent - injustice to mesne lords. It was probably, however, an indirect - consequence of Magna Carta that a similar rule came to be applied - where no mesne lord was injuriously affected. In 1231 a certain Ralf - of Bradeley died who had held two separate freeholds of the Crown, (i) - a small fee by petty serjeanty for which he rendered twenty arrows a - year, and (ii) land of considerable value held in socage. The Crown - took possession of both estates, on the assumption that the admitted - right of wardship over the petty serjeanty brought with it a right of - wardship over the socage lands also (although these would have been - exempt if they had stood alone). The king sold his rights for 300 - marks. Ralf’s widow claimed the wardship of the socage lands, on the - ground that these were of much greater value than those held by - serjeanty. Her argument was upheld, and the 300 marks were refunded by - the exchequer to the disappointed purchaser. See _Pipe Roll_, 5 Henry - III., cited Madox, I. 325-6. - ------ - -Prerogative wardship (even in the limited form admitted by Magna Carta) -might involve a double hardship on the mesne lord deprived by it of the -custody of his fief. Suppose that the common tenant held lands from a -mesne lord on condition of, say, five knights’ service, in addition to -his Crown fief. The king seized both fiefs on his death, nominally as a -compensation for the loss of military service, which the minor heir -could not render. Yet when a scutage ran the king demanded from the -mesne lord payments in proportion to his full _quota_ without allowing -for the fees of five knights taken from him by prerogative wardship. -This is no imaginary case. The barons in 1258 complained of the practice -and demanded redress.[782] - ------ - -Footnote 782: - - See Petition of the Barons, article 2 (_Select Charters_, 383). C. 53 - of Magna Carta reverts to prerogative wardship, granting redress, - although not summary redress, where John, or his father or brother, - had illegally extended it by occasion of socage, etc. See also - _supra_, p. 241. - ------ - - - - - CHAPTER THIRTY-EIGHT. - -Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, -sine testibus fidelibus ad hoc inductis. - - No bailiff for the future shall put any man to his “law” upon his own - mere word of mouth, without credible witnesses brought for this - purpose. - - -The evident intention of this provision was to prevent irregularities at -the critical stage of a trial, when the _lex_ appointed by the court was -attempted. This word _lex_, in its technical sense, may be correctly -applied to any form of judicial test, such as compurgation, ordeal, or -combat, the precise meaning required in each particular case being -determined by the context.[783] In this passage of Magna Carta, it may -be used in its widest connotation, but reasons will be immediately -adduced for the belief that _ordeal_ was specially present to the minds -of those who framed it. Bailiffs, (the word is a wide one, including -certainly the sheriffs and their underlings, and possibly also the -stewards who presided in manorial courts)[784] had evidently been guilty -of irregularities which public opinion of the day condemned. So much is -clear: but authorities differ widely as to the exact nature of the abuse -which is here prohibited. - ------ - -Footnote 783: - - Dr. Stubbs (_Const. Hist._, I. 576) translates “_lex_” in this passage - by “compurgation or ordeal.” Pollock and Maitland (II. 604, n.) - explain that the word “does not necessarily point to unilateral - ordeal; it may well stand for trial by battle.” Thayer (_Evidence_, - 199–200) extends it even further, so as to embrace judicially - appointed tests of every kind—battle, ordeal of fire or water, simple - oath, oath with compurgators, charter, transaction witnesses, or sworn - verdict. Bigelow (_Placita Anglo-Normannica_, 44) cites from Domesday - Book cases where litigants offered proof _omni lege_ or _omnibus - legibus_, that is, in any way the court decided. Sometimes _lex_ had a - more restricted meaning; in the Customs of Newcastle-on-Tyne _(Select - Charters_, 112) it seems to mean compurgation as opposed to combat. - ------ - -Footnote 784: - - Cf _supra_, c. 24. Coke, _Second Institute_, p. 44, following the - doubtful authority of the _Mirror of Justices_, extends it to all - king’s justices and ministers. The unqualified “_ballivus_” of this - passage should, perhaps, be contrasted with the “_noster ballivus_” of - cc. 28 and 30. - ------ - -I. _Probable Object of the Chapter._ The key is supplied by the words of -article 4 of the Assize of Clarendon, the provisions of which still -regulated the Crown’s practice in criminal cases in the reign of John. -That ordinance explains the procedure to be followed when robbers, -murderers, or thieves, apprehended by the sheriffs upon indictment, were -brought before the justices for trial: “and the sheriffs shall bring -them before the justices; and with them they shall bring two lawful men -of the hundred and of the village where they were apprehended, to bear -the record of the county and of the hundred, as to why they had been -apprehended; and, there, before the justices they shall make their law.” -This “law” is elsewhere in the ordinance clearly identified with -ordeal;[785] and the purport of the whole was that accused men could not -be put to ordeal except in presence of two lawful men who had been -present at the indictment and had come before the justices specially to -bear witness thereof. In other words, the sheriff’s verbal report of the -indictment “_sine testibus fidelibus ad hoc inductis_” was not -sufficient. The “county” and the “hundred” which had accused the -prisoner must send representatives to bear record of the facts.[786] - ------ - -Footnote 785: - - See article 12 where “_eat ad aquam_” is contrasted with “_non habeat - legem_” of article 13 (_Select Charters_, 144). - -Footnote 786: - - The “_ad portandum recordationem comitatus et hundredi_” of the - ordinance is exactly opposed to the “_simplex loquela sua_” of the - Charter. - -The ordeal indeed was a solemn affair for which careful rules had been -laid down. Every precaution was taken against the sheriff abusing his -authority. His account of the indictment was checked by the presence of -subordinate officials as well as of these members of the accusing jury. -Moreover, lords of feudal courts, claiming this franchise, could only -exercise it under royal warrant. Henry, the inventor of the system, -sternly repressed all irregularities whether those of his own bailiffs -or of the stewards of private lords.[787] - ------ - -Footnote 787: - - Thus in 1166 (the year of the Assize of Clarendon) the “_Soca_” of - Alverton was amerced because of a man placed “_ad aquam sine - serviente_” (_Pipe Roll_, 12 Henry II., p. 49 of edition of Pipe Roll - Society). In 1185 the “_villata_” of Preston paid 5 marks for putting - a man “_ad aquam sine waranto_” (_Pipe Roll_, 31 Henry II., cited - Madox, I. 547). In the same year a certain Roger owed half a mark for - being present at an ordeal “_sine visu servientum regis_”: and heavy - fines were exacted from those who had put a man “_injuste ad aquam_” - (_Ibid._). Apparently the bailiffs were sometimes described as the - king’s serjeants and sometimes as the sheriff’s serjeants: the same - Roll records fines for a man buried “_sine visu servientum - vicecomitis_” and for a robber hanged “_sine visu servientis regis_” - (_Pipe Roll_, 31 Henry II.). - ------ - -The same rules of procedure prevailed under John, who was less careful, -however, than his father had been, to suppress irregularities. In Magna -Carta he promised amendment. The presence of witnesses required by the -Assize of Clarendon was once more insisted on as a check upon the -capricious or unfair use of the ordeal. The Charter of 1216 repeated -this provision without alteration. In 1217, however, a change occurred, -which was undoubtedly a consequence of the virtual abolition of the -ordeal by the Lateran Council in 1215. The framers of Henry’s second -reissue, no longer so engrossed in pressing matters of state as they had -been in the previous year, found leisure to adjust points of -administrative detail. The simple reference to ordeal was inappropriate -now that new forms of trial were taking its place. The justices, indeed, -scarcely knew what test they should appoint, when ordeal had been -forbidden. They seem sometimes to have resorted to compurgation and -sometimes to battle; but the sworn verdict of neighbours was fast -occupying the ground left vacant. The new Charter then made it clear -that the provisions applied in 1215 to ordeal were to be extended to the -other tests which were now being substituted for it. The “_ad legem_” of -John’s Charter became in the new version “_ad legem manifestam nec ad -juramentum_,” which might very well include battle and the decisions of -jurors, as well as ordeal.[788] - ------ - -Footnote 788: - - See Thayer, _Evidence_, 37, n. for a case of 1291, where “_ad legem - manifestam_” can only mean trial by combat. The Statute of Westminster - I. (3 Edward I. c. 12) described men refusing to put themselves on a - jury’s verdict, “_come ceaus qui refusent la commune ley de la - terre_.” - ------ - -II. _Medieval Interpretations of the Passage._ Ignorance of the exact -nature of the abuse prohibited may well be excused at the present day, -since it had become obscure within a century of the granting of the -Charter. Some legal notes of the early fourteenth century, containing -three alternative suggestions, have come down to us.[789] - ------ - -Footnote 789: - - These appear as an appendix to the Year Book of 32-3 Edward I. (p. - 516); but the handwriting is supposed to be of the reign of Edward II. - ------ - -(1) The first interpretation discussed, and apparently dismissed, in -these notes, was that Magna Carta by this prohibition wished to ensure -that no one should serve on a jury (_in juratam_) unless he had been -warned by a timely summons. This far-fetched suggestion is clearly -erroneous. - -(2) The next hypothesis raised is that the clause prevented the -defendant on a writ of debt (or any similar writ) from winning his case -by his unsupported oath, where compurgators ought to have sworn along -with him. Exception was, in this view, taken to the bailiff treating -favoured _defendants_ in civil pleas with unfair leniency. - -(3) A third opinion is stated and eulogized as a better one, namely that -the Charter prohibited bailiffs from showing undue favour to -_plaintiffs_ in civil pleas. The defendant on a writ of debt (or the -like) should not, in this interpretation of Magna Carta, be compelled to -go to proof at all (that is, to make his “law”) unless the plaintiff had -brought “suit” against him (that is, had raised a presumption that the -claim was good, by production of preliminary witnesses or by some -recognized equivalent).[790] This last of the three interpretations thus -suggested in the reign of Edward II. has its modern adherents, as will -immediately be shown; but the discussion inaugurated in Plantagenet days -has not yet received an authoritative settlement. It was discussed in -the Court of Common Pleas so recently as 1700,[791] and historians at -the present day differ as widely as do the lawyers. - ------ - -Footnote 790: - - Cf. _supra_, pp. 101-2. The necessity for such “suit” was not legally - abolished until 1852 (by Statute 15 and 16 Victoria, c. 76, s. 55). In - 1343 it had been decided that the “suit” must be in existence, but - need not be produced in court; and that if they did appear they could - not be examined. See Thayer, _Evidence_, 13–15. - -Footnote 791: - - See City of London _v._ Wood, cited _infra_. - ------ - -III. _Modern Interpretations of the Passage._ No two of the recent -authorities hold precisely similar opinions. Four views, at least, may -be distinguished. (1) The provision is sometimes regarded as an attempt -to prevent plaintiffs in civil suits from being treated with undue -favour to the prejudice of defendants. A “suit” of witnesses -(_sectatores_) had to be produced in court by the plaintiff before any -“trial” (_lex_) could take place at all. Bailiffs were forbidden to -allow, through slackness, favour, or bribery, this rule to be relaxed. -This interpretation, which was adopted by the author of the _Mirror of -Justices_, and by the writer of the notes appended to the Year Book -already cited, found favour with Chief Justice Holt in 1700.[792] - ------ - -Footnote 792: - - See City of London _v._ Wood (12 Modern Reports, 669). Holt held the - clause of Magna Carta to mean that the plaintiff, unless he had his - witnesses, could not put a defendant to his oath. Pollock and - Maitland, II. 604, seem to concur, to the extent at least of counting - this as one of the abuses condemned by c. 38: “The rule which required - a suit of witnesses had been regarded as a valuable rule; in 1215 the - barons demanded that no exception to it should be allowed in favour of - royal officers.” - ------ - -(2) A second theory treats the clause as forbidding bailiffs (whether -royal officers or manorial stewards) to use their authority to forward -suits to which they happened to be parties. In certain circumstances, it -would seem, the steward who presided as his master’s representative over -the manorial court claimed the right to put a defendant to his proof, -without first producing “suit” or its equivalent, a privilege, however, -which he could exercise only once in every year. Royal bailiffs claimed -this privilege, and that without any similar restrictions. One object of -Magna Carta, in this view, was to reduce bailiffs to an equality with -other litigants. No longer should their bare assertion enable them to -dispense with the formalities which the court required from ordinary -plaintiffs before putting their adversaries to the risk of “a law” or -proof.[793] - ------ - -Footnote 793: - - This reading is emphasized by Brunner, _Entstehung der - Schwurgerichte_, 199-200. - ------ - -(3) In marked contrast to these two theories, which read Magna Carta as -preventing undue favour to plaintiffs, comes a third which regards it as -forbidding undue favour to defendants. The Crown, it is pointed out, -favoured Jews against Christians with whom they went to law. The Hebrew -defendant in a civil suit “might purge himself by his bare oath on the -Pentateuch, whereas in a similar case a Christian, as the law then -stood, might be required to wage his law twelve-handed—_i.e._ with -eleven compurgators.”[794] Magna Carta, it has been suggested, struck at -this preferential treatment of Jewish litigants, trebly hated as aliens, -capitalists, and rejectors of Christ. If so, the attempt failed; for in -1275 a certain Hebrew, named Abraham, was allowed “to make his law -single-handed on his Book of the Jewish Law” in face of the plaintiff’s -protest that this was contrary to the custom of the realm.[795] - ------ - -Footnote 794: - - See J. M. Rigg’s admirable preface to Sel. _Pleas from Rolls of Jewish - Exchequer_, p. xii., and cf. _supra_, c. 10. - -Footnote 795: - - See _Ibid._, p. 89, where the case is cited. - ------ - -(4) A fourth theory reads the chapter as a prohibition of undue severity -in criminal prosecutions. A formal indictment by the accusing jury must -always precede the “trial.” No bailiff ought to put anyone to the water -or the red-hot iron upon suspicion, or private information.[796] Much -may be said for this interpretation so far as it goes; but the Assize of -Clarendon and Magna Carta agree in demanding something more. It was not -enough that indictment should precede ordeal; they required that some -members of the presenting jury who had made the accusation at the first -diet should accompany the sheriff before the justices at the final diet, -there to bear testimony both as to the nature of the crime and as to the -fact of the indictment. Before anyone could be put “to his law,” the -sheriff’s verbal report must be corroborated by the testimony of -representative jurors. - ------ - -Footnote 796: - - This reading is supported by Pollock and Maitland, I. 130, n. There is - no necessary inconsistency between the view here cited, and that - already cited from _Ibid._ II. 604. The same clause of Magna Carta may - have been aimed at irregularities of two kinds, in civil and criminal - pleas respectively. - ------ - - - - - CHAPTER THIRTY-NINE. - -Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut -utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum -ibimus, nec super eum mittemus, nisi per legale judicium parium suorum -vel per legem terre. - - No freeman shall be arrested, or detained in prison, or deprived of - his freehold, or outlawed, or banished, or in any way molested; and we - will not set forth against him, nor send against him,[797] unless by - the lawful judgment of his peers and by the law of the land. - - ------ - -Footnote 797: - - The corresponding provision of the Articles of the Barons (29) adds - the word “_vi_” (“_nec rex eat vel mittat super eum vi_”). The idea of - open violence, thus clearly indicated, is expressed in contemporary - documents by the fuller phrase, _per vim et arma_. The accepted - translation, as contained in the _Statutes at Large_, “nor will we - pass upon him nor condemn him,” is thus inadequate. The editors of the - _Statutes of the Realm_, I. 117, suggest “deal with him” as an - alternative translation. Coke, it will be seen _infra_, is the - original source of the error which connects this “going” and “sending” - with legal process. - -This chapter occupies a prominent place in law-books, and is of -considerable importance, although there are reasons for holding that its -value has been grossly exaggerated. - -I. _Its Main Object._ It has been usual to read it as containing a -guarantee of trial by jury to all Englishmen; as absolutely prohibiting -arbitrary commitment; and as undertaking solemnly to dispense to all and -sundry an equal justice, full, free, and speedy.[798] The traditional -interpretation has thus made it, in the widest terms, a promise of law -and liberty, and good government to every one.[799] A careful analysis -of the words of the clause, read in connection with its historical -genesis, suggests the need for modifications of this view. It was in -accord with the practical genius of this great document that it should -direct its energies, not to the enunciation of vague platitudes and -well-sounding generalities, but to the reform of a specific and clearly -defined group of abuses. Its main object was to prohibit John from -resorting to what is sometimes whimsically known in Scotland as “Jeddart -justice.”[800] It forbade him for the future to place execution before -judgment. Three aspects of this prohibition may be emphasized. - ------ - -Footnote 798: - - See, _e.g._, Coke, _Second Institute_, 55. - -Footnote 799: - - Thus Blackstone, _Commentaries_, IV. 424: “It protected every - individual of the nation in the free enjoyment of his life, his - liberty, and his property, unless declared to be forfeited by the - judgment of his peers or the law of the land.” Hallam, _Middle Ages_, - II. 448, speaking of cc. 39 and 40 together, says they “protect the - personal liberty and property of all freemen by giving security from - arbitrary imprisonment and arbitrary spoliation.” Creasy, _English - Constitution_, p. 151, n.: “The ultimate effect of this chapter was to - give and to guarantee full protection for person and property to every - human being that breathes English air.” - -Footnote 800: - - The same grim tradition applied to Lidford as to Jedburgh: - - “I oft have heard of Lydford law, - How in the morn they hang and draw, - And sit in judgment after.” - - See Neilson, _Trial by Combat_, 131, and authorities there cited. - ------ - -(1) _Judgment must precede execution._ In some isolated cases, happily -not numerous, John proceeded, or threatened to proceed, by force of arms -against recalcitrants as though assured of their guilt, without waiting -for legal procedure.[801] Complaint was made of arrests and -imprisonments suffered “without judgment” (_absque judicio_); and these -are the very words used in the "unknown charter"—“_Concedit Rex Johannes -quod non capiet homines absque judicio_.”[802] Both the Articles of the -Barons and Magna Carta expand this phrase. _Absque judicio becomes nisi -per legale judicium parium suorum vel per legem terre_, thus guarding, -not merely against the more obvious evil—execution without judgment—but -also against John’s subtler device for attacking his enemies by a -travesty of judicial process. The Charter asks not only for a -“judgment,” but for a “judgment of peers” and “according to the law of -the land.” Two species of irregularities were condemned by these words; -and these will be explained in the two following subsections. - ------ - -Footnote 801: - - Mr. Bigelow considers that such cases were numerous. See _Procedure_, - 155: “The practice of granting writs of execution without trial in the - courts appears to have been common.” - -Footnote 802: - - See Appendix. - ------ - -(2) _Per judicium parium_: every judgment must be delivered by the -accused man’s “equals.” The need for “a judgment of peers” was -recognized at an early date in England.[803] It was not originally a -class privilege of the aristocracy, but a right shared by all grades of -freeholders; whatever their rank they could not be tried by their -inferiors.[804] In this respect English custom did not differ from the -procedure prescribed by feudal usage on the Continent of Europe.[805] -Two applications of this general principle had, however, special -interest for the framers of Magna Carta: the “peers” of a Crown tenant -were his fellow Crown tenants, who would normally deliver judgment in -the _Curia Regis_; while the “peers” of the tenant of a mesne lord were -the other freeholding tenants assembled in the Court Baron of the manor. -In either case judgments were given _per pares curiae_, who decided what -“test” should be appointed, who thereafter sat as umpires while their -accused “peer” carried this through to success or failure, and who -finally pronounced a sentence in accordance with the result. Crown -tenants and under-tenants alike complained that they were deprived by -John of the only safeguard they could trust, the judgment of a full -court of Englishmen of their own rank, who presumably, therefore, had no -undue bias towards conviction. John, not here an innovator, but merely -resorting wholesale to practices used sparingly and with prudence in -earlier reigns, had set these rights openly at defiance. His political -and personal enemies were frequently exiled, or deprived of their -estates, by the judgment of a tribunal composed entirely of Crown -nominees ready to give any sentence which John might dictate. Magna -Carta promised a return to the recognized ancient practice. No freeman -should henceforth suffer in person or in property as the result of a -judgment by the professional judges forming the bench of Common Pleas, -or the other bench known as _coram rege_. This was to abolish not merely -the abuses of John, but the system of Henry II., which he abused. - ------ - -Footnote 803: - - The earliest known reference occurs in the so-called _Leges Henrici - primi_ (c. 31). _Unusquisque per pares suos judicandus est et ejusdem - provinciae_. - -Footnote 804: - - Cf. Pollock and Maitland, I. 152, and authority cited. As there was no - “peerage” in England in the modern sense (cf. _supra_, p. 237) until - long after John’s reign, it is obvious that the _judicium parium_ of - Magna Carta must be interpreted in a broader sense than any mere - “privilege of a peer” at the present day. Every man’s equals were his - “peers.” - -Footnote 805: - - See Stubbs, _Const. Hist._, I. 578, n., for foreign examples of - _judicium parium_. - ------ - -The varied meanings conveyed by the word “peers” to a medieval mind, -together with the nature of _judicium parium_, may be further -illustrated by the special rules applicable to four exceptional classes -of individuals:—(_a_) all Jews of England and Normandy enjoyed under -John’s charter of 10th April, 1201, the right to have complaints against -them judged by men of their own race. For them a _judicium parium_ was a -judgment of Jews.[806] (_b_) A foreign merchant, by later statutes, -obtained the right to a special form of _judicium parium_—to a jury of -the “half tongue” (_de medietate linguae_), composed partly of aliens of -his own country.[807] (_c_) The peers of a Welshman seem, in some -disputes with the Crown, to have been men drawn from the marches, and -therefore unlikely to side entirely either with the English or with the -Welsh point of view. Such at least is the most plausible interpretation -of the phrase “_in marchia per judicium parium suorum_,” occurring in -later chapters of Magna Carta, and granting to the Welsh redress of -wrongful disseisins.[808] (_d_) A Lord Marcher occupied a peculiar -position, enjoying rights denied to barons whose estates lay in more -settled parts of England. In 1281 the Earl of Gloucester, accused by -Edward I. of a breach of allegiance, claimed to be judged, not by the -whole body of Crown tenants, but by such as were, like himself, lords -marchers.[809] These illustrations show that a “trial by peers” had a -wider and less stereotyped meaning in the Middle Ages than it has at the -present day.[810] - ------ - -Footnote 806: - - “If a Christian bring a complaint against a Jew, let it be adjudged by - his peers of the Jews.” See _Rot. Chartarum_, p. 93, and _supra_ p. - 269. - -Footnote 807: - - See _Carta Mercatoria_, c. 8; 27 Edward III. stat. 2, c. 8; and 28 - Edward III. c. 13; also Thayer, _Evidence_, p. 94. - -Footnote 808: - - See _infra_, cc. 56, 57, and 58. Under c. 59 the barons of England - were called peers of the King of Scots. - -Footnote 809: - - See _Placitorum Abbreviatio_, p. 201, cited Pollock and Maitland, I. - 393 n. - -Footnote 810: - - See also a passage in the Scots Acts of Parliament (I. 318) attributed - to David: “No man shall be judged by his inferior who is not his peer; - the earl shall be judged by the earl, the baron by the baron, the - vavassor by the vavassor, the burgess by the burgess; but an inferior - may be judged by a superior.” - ------ - -(3) _Per legem terrae._ No freeman could be punished except in -accordance with the law of England. These often-quoted words were used -in Magna Carta with special though not perhaps exclusive reference to -the narrow technical meaning of “_lex_” which was so prominent in 1215 -and which has been already explained.[811] The Great Charter promised -that no plea, civil or criminal, should henceforth be decided against -any freeman until he had failed in the customary "proof"—whether battle, -or ordeal, or otherwise.[812] - ------ - -Footnote 811: - - See _supra_, p. 103, and cc. 18, 36, and 38. - -Footnote 812: - - See Thayer, _Evidence_, 200–1, for a discussion of the phrase “_lex - terrae_.” See also Bigelow, _History of Procedure_, 155, n.: “The - expression ‘_per legem terrae_’ simply required judicial proceedings, - according to the nature of the case; the duel, ordeal, or - compurgation, in criminal cases, the duel, witnesses, charters, or - recognition in property cases.” The words occur at least twice in - Glanvill, each time apparently with the technical meaning. In II. c. - 19, the penalty for a false verdict includes forfeiture by jurors of - their law (“_legem terrae amittentes_”); while in V. c. 5, a man born - a villein, though freed by his lord, cannot, to the prejudice of any - stranger, wage his law (“_ad aliquam legem terrae faciendam_”). The - stress placed on the accused’s right to the time-honoured forms of - _lex_ is well illustrated by the difficulty of substituting jury trial - for ordeal. It has already been shown that the right of “standing - mute,” that is, virtually, of demanding ordeal, was only abolished in - 1772. See _supra_, p. 400. Five and a half centuries were thus allowed - to pass before the criminal law was bold enough, in defiance of a - fundamental principle of Magna Carta, to deprive accused men of their - “law.” - ------ - -This older, more technical signification was gradually forgotten, and -“the law of the land” became the vague and somewhat meaningless phrase -of the popular speech of to-day. It was only natural that this change of -meaning should be reflected in subsequent statutes reaffirming, -expanding, or explaining Magna Carta. An important series of these, -passed in the reigns of Edward III. and Richard II., shows how the _per -legem terrae_ of 1215 was read in the fourteenth century as equivalent -to the wider expression “by due process of law,” and how the Great -Charter was interpreted as prohibiting the trial of men for their lives -and limbs before the King’s Council on mere informal and irresponsible -suggestions, sometimes made loosely or from malicious and interested -motives.[813] - ------ - -Footnote 813: - - It would seem, however, from the words of these statutes that for this - purpose the provisions of chapters 36 and 38 were used to supplement - those of the present chapter, if they were not confused with them. See - 5 Edward III. c. 9; 25 Edward III. stat. 5, c. 4; 37 Edward III. c. - 18; 38 Edward III. c. 3; 42 Edward III. c. 3; 17 Richard II. c. 6. See - also Stubbs, _Const. Hist._, II. 637-9, for the series of petitions - beginning with 1351. - -The Act of 1352, for example, after reciting the provision of Magna -Carta at present under discussion, insisted on the necessity of -“indictment or presentment of good and lawful people of the same -neighbourhood where such deeds be done.” Coke,[814] founding apparently -on the terms of these fourteenth-century statutes, makes “_per legem -terrae_” of the Charter equivalent to “by due process of law” and that -again to “by indictment or presentment of good and lawful men,” thus -finding the grand jury enshrined in Magna Carta. The framers of the -Petition of Right[815] read the same words as a prohibition, not only of -imprisonment “without any cause showed” but also of proceedings under -martial law, thus interpreting the aims of King John’s opponents in the -light of the misdeeds of King Charles, and applying to the rude system -established by Henry of Anjou reforms more appropriate to the highly -developed administration of the Tudors. - ------ - -Footnote 814: - - _Second Institute_, p. 46. - -Footnote 815: - - 3 Charles I. c. 1. - ------ - -These glosses must be discarded; the words of John’s Charter promised a -threefold security to all the freemen of England. Their persons and -property were protected from the king’s arbitrary will by the rule that -execution should be preceded by a judgment—by a judgment of peers—by a -judgment according to the appropriate time-honoured “test,” battle, -compurgation, or ordeal. - -(4) _The meaning of “vel.”_ The peculiar use of the word “_vel_” -introduced an unfortunate element of ambiguity. No proceedings were to -take place "without lawful judgment of peers or by the law of the -land"—“or” thus occurring where “and” might naturally be expected. -Authorities on medieval Latin are agreed, however, that “_vel_” is -sometimes equivalent to _et_.[816] Comparison with the terms of chapter -52 and with those of the corresponding Article of the Barons places the -matter almost beyond doubt. The 25th of the Articles of the Barons had -provided that all men disseised by Henry or Richard should “have right -without delay by judgment of their peers in the king’s court,” giving no -hint of any possible alternative to _judicium parium_. Chapter 52 of the -Charter, in supplementing the present chapter, describes the evils -complained of in both as acts of disseisin or outlawry by the king -“_sine legale judicio parium suorum_,” leaving no room for ambiguity. - ------ - -Footnote 816: - - Pollock and Maitland, I. 152, n., read the word as having _both_ - meanings in this passage. Cf. Gneist, _Engl. Const._, chapter xviii. - Mr. Pike, _House of Lords_, 170, takes an opposite view: “King John - bound himself in such a manner as to show that judgment of peers was - one thing, the law of the land another. The judgment of peers was ... - a very simple matter and well understood at the time. The law of the - land included all legal proceedings, civil or criminal, other than the - judgment of peers.” The present writer rejects this antithesis, - because the two things may be, and indeed must be, combined. The - “trial” by a law and the “judgment” by equals were complementary of - each other. The peers appointed the test and decided whether it had - been properly fulfilled. - ------ - -II. _The Scope of the Protection afforded._ The object of the barons was -to protect themselves and their friends against the king, not to set -forth a scientific system of jurisprudence: the _judicium parium_ was -interposed as a barrier against prosecutions instituted by the king, not -against appeals of private individuals. Pleas following upon accusations -by the injured party were held in 1471 not to fall within the words of -Magna Carta.[817] This was a serious limitation; but as against the -Crown the scope of the protection afforded by the Great Charter was very -wide indeed. Care was taken that the three-fold safeguard should cover -every form of abuse likely to be practised by John. - ------ - -Footnote 817: - - See, _e.g._, Pike, _House of Lords_, 217, citing Littleton in _Year - Book_, Easter, 10 Edward IV., No. 17, fo. 6. - ------ - -(1) _Capiatur vel imprisonetur._ If these two words were literally -interpreted, and the provision they embody strictly enforced, all -orderly government would be at an end. When a crime has been committed, -the offender must be arrested and provisionally detained, without -waiting for any judgment, whether of peers or otherwise. A man accused -of crime may, indeed, justly demand three things: a trial before -condemnation, that the trial be not too long delayed, and that under -some circumstances he should be meanwhile released on bail. Magna Carta -goes further, promising complete exemption from arrest until judgment -had been passed upon him. Here the barons extorted a wider concession -than could possibly be enforced. Their excess of caution had led them to -use a loose and dangerously wide phrase, which ought not to be too -literally interpreted.[818] - ------ - -Footnote 818: - - If “_vel_” might be translated by “and” and “_imprisonetur_” by - “detained in gaol,” the phrase would then mean that no freeman should - be kept too long in prison pending his trial, or permanently - imprisoned without trial. - ------ - -(2) _Aut disseisiatur._ Avarice was one of the most frequent motives of -John’s oppressions: the whole machinery of justice was valued primarily -as an engine for transferring land and money to his treasury. Crown -tenants frequently found their estates appropriated by the Crown as -escheats. That this was one of their grievances to which the barons -attached supreme importance is shown in many ways: by the care taken in -the 25th of the Articles of the Barons and in chapter 52 of the Charter -to provide procedure for restoring to their rightful owners estates of -which they had been improperly “disseised,”[819] and by the terms of -certain writs issued by John after the treaty at Runnymede, for example -the letter of 19th June to his half-brother, the Earl of Salisbury, -explaining that peace had been made on condition of the immediate -restoration of all “lands, castles, and franchises from which we have -caused any one to be disseised _injuste et sine judicio_.”[820] - ------ - -Footnote 819: - - For this word cf. _supra_, c. 18. The treaty entered into by John in - 1191 (discussed _infra_) speaks of the “disseisin of chattels,” - showing that the word had not yet been absolutely restricted to real - estate. - -Footnote 820: - - See _Rot. Claus._, I. 215. Mr. Pike (_House of Lords_, p. 170) - maintains, indeed, that the prevention of disseisins “_sine judicio_” - was the chief, if not the sole, object of the chapter under - discussion:—“The judgment of peers had reference chiefly to the right - of landholders to their lands, or to some matters connected with - feudal tenure and its incidents.” This goes too far: the barons by no - means confined the safeguard afforded by the _judicium parium_ to - questions of land and land-tenure. Pollock and Maitland, I. 393, - countenance a broader interpretation. One point is beyond doubt: - _judicium parium_ extended to the assessing of amercements. In c. 21 - earls and barons are confirmed in the right to be amerced only _per - pares suos_. - -Later versions of Magna Carta (beginning with that of 1217) are careful -to define the objects to be protected from disseisin: “free tenements, -franchises, and free customs.”[821] (_a_) _Liberum tenementum._ “Free” -tenements were freeholds as opposed to the holdings of villeins. None of -their belongings thus protected were more highly valued by the barons -than their feudal strongholds.[822] Castles claimed by great lords as -their own property are mentioned in many writs of the period—for -example, in that to the Earl of Salisbury already cited—while chapter 52 -of Magna Carta gives them a prominent place among the “disseisins” to be -restored. (_b_) “_Libertates_” covered feudal rights and incidents of -too intangible nature to be appropriately described as “holdings.” In a -sense, all the rights secured by Magna Carta were “liberties”; but the -word is probably used here as equivalent to “franchises,” embracing -feudal jurisdictions, immunities, and privileges of various sorts, all -treated by medieval law as falling within the category of “property.” -(_c_) _Consuetudines_ had two meanings, a broad general one and a -narrower financial one.[823] As the Charter of 1217 uses a proprietary -pronoun (no freeman shall be disseised of _his_ free customs), it -probably refers to such rights as those of levying tolls and tallages. -These vested interests were of the nature of monopolies throughout the -territory of the lord who enjoyed them; and it follows that Coke, in -treating this passage as a text on which to preach the doctrine that -monopolies have always been illegal in England, aims unusually wide of -his mark. Commenting on the words “_de libertatibus_,” he declares that -“generally all monopolies are against this great charter, because they -are against the liberty and freedom of the subject and against the law -of the land.”[824] In this error he has been assiduously followed.[825] - ------ - -Footnote 821: - - _De libero tenemento suo vel libertatibus vel liberis consuetudinibus - suis._ - -Footnote 822: - - Cf. _supra_, p. 176. - -Footnote 823: - - Cf. _supra_, p. 290. - -Footnote 824: - - _Second Institute_, p. 47. - -Footnote 825: - - See, _e.g._, Creasy, _Hist. of Const._, p. 151, n.: “Monopolies in - general are against the enactments of the Great Charter.” See also - Taswell-Langmead, _Eng. Const. Hist._, 108. - ------ - -(3) _Aut utlagetur, aut exuletur, aut aliquo modo destruatur._ The -practice of placing outside the protection of the law such evildoers as -could not be brought to justice had its origin in those early days when -the existing machinery of law was inadequate to the work required of it. -With the progress of order and organization, the criminal’s chances of -evading justice became fewer; and the declaration of outlawry, which -could only be made in the county court, tended to become a mere -formality, preliminary to the forfeiture of the outlaw’s lands and -goods. The expedient was one which recommended itself peculiarly to -John’s genius; it was his deliberate policy to terrify those with whom -he had quarrelled, until they fled the country; then to summon them -three times before the county court to answer the charges against them, -knowing well that they dared not face his corrupt and servile officers; -and finally to have them formally outlawed and their property seized. -Such had been the fate suffered by two of the baronial leaders, Robert -Fitz Walter and Eustace de Vesci, in the autumn of 1212.[826] Outlawry -was not always, however, a mere formality in John’s reign. The man who -had been outlawed was outside the pale of society; anyone might slay him -at pleasure; in the grim phrase of the day, he bore "a wolf’s head" -(_caput lupinum_), and might be hunted like a noxious beast. A reward of -two marks was offered for each outlaw’s head brought to Westminster. -This sum was paid in 1196 for the head of William of Elleford.[827] The -word “exiled” explains itself; and commentators have very properly noted -the care taken to widen the scope of the clause by the use of the words -“or in any other way molested.”[828] - ------ - -Footnote 826: - - See _supra_, p. 30. - -Footnote 827: - - See _Pipe Rolls_, 7 Richard I., cited by Madox, I. 201. - -Footnote 828: - - _E.g._, Coke, _Second Institute_, p. 48. - ------ - -(4) “_Nec super eum ibimus, nec super eum mittemus._” These words have -been frequently misinterpreted. They must be viewed in the light of the -historical incidents of the immediately preceding years; and, so read, -they present no difficulties, and leave no room for ambiguity. Their -object was to prevent John from substituting violence for legal process; -from taking the law into his own hands and “going against them” with an -army at his back, or “sending against them” in similar wise. He must -never again attack _per vim et arma_ men unjudged and uncondemned. - -The meaning is plain. Yet Coke, following his vicious method of assuming -the existence, in some part of Magna Carta, of a warrant for every legal -principle established in his own day, has utterly misled several -generations of commentators. He maintained that what John promised was -to refrain from raising in his own courts actions in which he was -personally interested. In elaborating this error, he drew a fine -distinction between the court of King’s Bench, otherwise known as _coram -rege_, because the king was always in theory present there, and other -courts in which were present only those to whom he had delegated -authority by a writ “sent” to it. _Ibimus_, he seems to think, applied -in the former case; _mittemus_ in the latter. To quote his own words, -"No man shall be condemned at the king’s suit, either before the king in -his bench, where the pleas are _coram rege_ (and so are the words, _nec -super eum ibimus_, to be understood) nor before any other commissioner, -or judge whatsoever (and so are the words, _nec super eum mittemus_, to -be understood), but by the judgment of his peers, that is, equals, or -according to the law of the land."[829] Coke is completely in error; it -was the use of brute force, not merely a limited form of legal process, -which John in these words renounced. - ------ - -Footnote 829: - - See _Second Institute_, page 46. John Reeves, _History of English - Law_, I. 249 (third ed.), while condemning Coke, gives an even more - strained interpretation of his own, founded on the chance - juxtaposition of the two verbs in one passage of the Digest. On quite - inconclusive grounds he draws the inference that both words refer - exclusively to diligence against "goods and chattels"—diligence - against the person, and diligence against landed estate having - previously been treated in words specially appropriate to each of them - respectively. Dr. Lingard, _History of England_, III. c. 1, deserves - praise as the first commentator who took the correct view. - ------ - -III. _What Classes of Men enjoyed the Protection of Judicium Parium?_ No -“freeman” was to be molested in any of the ways specified; but how far -in the social scale did this description descend? Coke claims the -villeins as free for the purposes of this chapter and of chapter I., -while rejecting them for the purposes of chapter 20.[830] His right to -the status of a freeman has already been disallowed,[831] and any -possible ambiguity as to his share in the benefits of the present -chapter is removed by the deliberate words of the revised version of -1217. Chapter 35 of that reissue, with the object of making its meaning -clearer, inserts after “_disseisiatur_” the words (already discussed) -“_de libero tenemento suo vel libertatibus vel liberis consuetudinibus -suis_.” Mr. Prothero suggests that this addition implies an advance on -the privileges secured in 1215:—"It is worth while to notice that the -words in which these liberties are stated in §35 of the charter of 1217 -are considerably fuller and clearer than the corresponding declaration -in the charter of 1215."[832] It is safer to infer that no change was -here intended, but merely the removal of ambiguity. If there is a change -it is rather a contraction than an extension, making it clear that only -“free” tenements are protected, and excluding carefully the property of -villeins and even holdings of _villenagium_ (or unfree land) belonging -to freemen.[833] Care was thus taken to make it plain beyond any -reasonable doubt that no villein should have part or lot in rights -hailed by generations of commentators as the national heritage of all -Englishmen.[834] - ------ - -Footnote 830: - - _Second Institute_, pp. 4, 27, and 45. - -Footnote 831: - - See _supra_, c. 20. - -Footnote 832: - - _Simon de Montfort_, 17, n. Cf. Blackstone, _Great Charter_, xxxvii., - “the more ample provision against unlawful disseisins.” - -Footnote 833: - - Cf. Pollock and Maitland, I. 340, n. - -Footnote 834: - - Cf. _supra_, p. 142. Other verbal changes in the charter of 1217 show - the same care to exclude the villeins. _E.g._ c. 16 leaves the king’s - demesne villeins strictly “in his mercy,” that is, liable to - amercement without any reservation. - ------ - -IV. _Reactionary Side of these Provisions._ To insist rigorously that in -all cases a judgment of feudal peers, either in King’s Court or in Court -Baron, should take the place of a judgment by the officials of the -Common Bench and the King’s Bench, was to reverse one of the outstanding -features of the policy of Henry II. In this respect, the present chapter -may be read in connection with chapter 34. The barons, indeed, were not -strict logicians, and probably thought it prudent to claim more than -they intended to enforce.[835] Yet a real danger lurked in these -provisions; the clause was, after all allowance has been made, a -reactionary one, tending to the restoration of feudal privileges and -feudal jurisdictions, inimical alike to the Crown and to the growth of -really popular liberties. John promised that feudal justice (as before -the reforms of his father) should be dispensed in feudal courts; and, if -this promise had been kept, the result would have been to check the -development of the small committees destined to become at no distant -date the Courts of King’s Bench and Common Pleas, and to revive the -fast-waning jurisdictions of the manorial courts on the one hand and of -the _commune concilium_ on the other.[836] - ------ - -Footnote 835: - - Mr. G. H. Blakesley in an able article in the _Law Quarterly Review_, - V. 125, goes so far as to reduce the entire chapter to an attempt to - protect feudal justice in its struggle with royal justice. "It may - reasonably be suspected that cap. 39 also was directed merely to - maintain the lord’s court against Crown encroachments." - -Footnote 836: - - Mr. Pike, _House of Lords_, 170–4, shares this view of the reactionary - nature of the clause, although he considers that the claim to - _judicium parium_ by a Crown tenant might be satisfied by the presence - of one or more fellow barons among the judges of the “Benches,” and - did not necessarily involve a full meeting of the _commune concilium_ - summoned in the accustomed way. _Ibid._, p. 204. If the “judgment” of - the full court was requisite (and, in spite of the high authority of - Mr. Pike, there is much to be said for that contention), then the - reactionary feudal tendency is even more prominent. This feudal - tendency is emphasized by the consideration that private franchises - and private castles bulked prominently among the rights of property - protected from arbitrary seizure by the king. - ------ - -V. _The Genesis of the Chapter._ The interpretation here given of this -famous chapter is emphasized by a comparison of its words with certain -earlier documents and events. The reigns of Richard and John furnish -abundant examples of the abuses complained of. In 1191 Prince John, as -leader of the opposition against his brother’s Chancellor, William -Longchamp, concluded a treaty protecting himself and his allies from the -very evils which John subsequently committed against his own barons. The -words of this treaty of 1191 admirably bring out what Richard’s barons -sought to secure, and what they sought to escape. Longchamp conceded in -Richard’s name that the bishops and abbots, earls and barons, -“vavassors” and free-tenants, should not be disseised of their lands and -chattels at the will of the justices or ministers of the king, but that -they should be dealt with by judgment of the king’s court according to -the lawful customs and assizes, or by the king’s command.[837] The -magnates were not to be judged by officials whom they despised as their -social inferiors and mistrusted as the paid instruments of royal -tyranny; their claim to be tried by their equals in the king’s court was -granted. - ------ - -Footnote 837: - - See R. Hoveden, III. 136. This truce, which was dated 28th July, 1191, - had been brought about by the mediation of the archbishop of Rouen and - of certain of the English prelates. - ------ - -Now, the main subject of the arbitration, ending in the treaty from -which this excerpt has been taken, was the custody of certain castles -and estates. After the right to occupy each separate castle in dispute -had been carefully determined, provision was then made, in the general -words cited above, against this arrangement being disturbed without a -judgment of the _curia regis_. Disseisin, and particularly disseisin of -castles, was thus in 1191, as in 1215, a topic of special prominence. - -Early in 1213 the king attempted to take vengeance upon his opponents in -a manner which they are not likely to have forgotten two years later at -Runnymede, and which probably influenced the wording of the present -chapter. John, resenting bitterly the attitude of the northern barons -who had refused alike to accompany him to Poitou and to pay scutage, -determined to take the law into his own hands. Without summoning his -opponents before a _commune concilium_ of his feudal tenants, without -even a trial and sentence by one of his Benches, without making any -effort to investigate the justice or injustice of their pleas for -refusing, he set out with an army to punish them. He had gone as far -north as Northampton on his mission of vengeance when he was overtaken -by the archbishop of Canterbury, a strong advocate of conciliation. On -28th August, 1213, Stephen Langton persuaded the king to defer forcible -proceedings _until he had obtained a legal sentence_ in a formal -_Curia_.[838] That John once again threatened recourse to violent -methods may be safely inferred from the words of a letter patent issued -in May, 1215, when both sides were armed for war. He proposed -arbitration, and promised a truce until the arbitrators had given their -award. The words of this promise are notable; since, not only do they -illustrate the procedure of August, 1213, but they agree closely with -the clause of Magna Carta under discussion. The words are:—“Know that we -have conceded to our _barons_ who are against us, that we shall not take -or disseise them or their men, nor shall we go against them _per vim vel -per arma_, unless by the law of our kingdom, or by the judgment of their -peers _in curia nostra_.”[839] Magna Carta repeats this concession in -more general terms, substituting “freemen” for the “barons” of the -writ—an alteration which necessitated the omission from the charter of -the concluding words of the writ, “_in curia nostra_”; because the peers -of freemen, other than barons, would be found, not among the barons in -the king’s court, but among the freeholders in the court baron.[840] - ------ - -Footnote 838: - - Cf. _supra_, p. 35. - -Footnote 839: - - The writ is dated 10th May, 1215, and appears in _New Rymer_, I. 128. - -Footnote 840: - - Magna Carta also omits as unnecessary “_per vim et arma_,” though the - Articles of the Barons had contained the word “_vi_.” - ------ - -The words of Magna Carta, taken in connection with the treaty of 1191 -and the writ of 1213, are thus seen to have a narrower meaning than that -extracted from them by subsequent commentators. - -VI. _Later History of “Judgment of Peers.”_ The claim made by the barons -at Runnymede was re-asserted in somewhat varying forms by the same -barons or by their descendants on many subsequent occasions. The -“_judicium parium_” was destined to enjoy a long and brilliant career, -and the interpretations put upon it by the Crown and by the opposition -respectively, while interesting in themselves, afford strong -confirmation of the somewhat restricted estimate of the scope of the -present chapter, which has been above enunciated. - -(1) _The baronial contention._ The earls and barons, throughout the -reign of John’s unhappy son, attempted to place a broad interpretation -on the privilege secured to them by this chapter—claiming that all -pleas, civil and criminal (such at least as were raised against them at -the instance of the Crown) should be tried by their fellow earls and -barons, and not by professional judges of lower rank. - -(2) _The royal contention._ The Crown, on the other hand, while not -openly infringing the charter, tried to narrow its scope. The judges -appointed by the king to determine pleas _coram rege_, no matter what -their original status might be, became (so the Crown argued) by such -appointment, the peers of any baron or earl. This doctrine was -enunciated in 1233 when Henry III. and his justiciar, Peter des Roches, -denounced Richard, Earl Marshal, as a traitor, in a meeting -(_colloquium_) of Crown tenants held at Gloucester on 14th August of -that year. Thereafter, “_absque judicio curiae suae et parium suorum_,” -as Matthew Paris carefully relates,[841] Henry treated earl Richard and -his friends as outlaws, and bestowed their lands on his own Poitevin -favourites. An attempt was made, at a subsequent meeting held on 9th -October, to have these proceedings reversed on the ground, already -stated, that they had taken place _absque judicio parium suorum_. - ------ - -Footnote 841: - - _Chron. Maj._, III. 247-8. - ------ - -The sequel makes clear a point left vague in Matthew’s narrative: there -had been a judgment previous to the seizure, but only a judgment of -Crown officials _coram rege_, not of earls and barons in the _commune -concilium_. The justiciar defended the action of the government by a -striking argument: “there were no peers in England, such as were in the -kingdom of France,” and, therefore, John might employ his justices to -condemn all ranks of traitors.[842] Bishop Peter was here seeking to -evade the provisions of Magna Carta without openly defying them, and his -line of argument was that the king’s professional judges, however lowly -born, were the peers of an English earl or baron.[843] Neither the royal -view nor the baronial view entirely prevailed. A distinction, however, -must be drawn between criminal and civil pleas. - ------ - -Footnote 842: - - M. Paris, _Ibid._, III. 251-2. - -Footnote 843: - - Pollock and Maitland, I. 393, hesitate to condemn this argument. "The - very title of the ‘barons’ of the Exchequer forbids us to treat this - as mere insolence." Dr. Stubbs has no such scruples: “The Bishop - replied contemptuously, and with a perverse misrepresentation of the - English law” (_Const. Hist._, II. 49). Elsewhere he makes him, not so - much contemptuous, as ill-informed of the law—“ignorant blunder as it - was” (II. 191). Yet Bishop Peter had presumably a more intimate - knowledge of the law he administered as justiciar in 1233 than any - modern writer can have. In the matter of amercements, at least, the - barons of the exchequer acted as the peers of earls and barons. - ------ - -(3) _Criminal pleas._ Offenders of the rank of barons partially made -good their claim to a trial by equals; while all other classes failed. A -further distinction is thus necessary. (_a_) _Crown tenants._ The -conflicting views held by king and baronage here resulted in a -compromise. In criminal pleas, the Crown was obliged to recede from the -high ground taken by Peter des Roches in 1233. Unwillingly, and with an -attempt to disguise the fact of surrender by confusing the issue, -Bracton in theory and Henry III. in practice admitted part of the -barons’ demand, namely, “that in cases of alleged treason and felony, -when forfeiture or escheat was involved, they should be judged only by -earls and barons.”[844] This concession was by no means based on the -broad ground taken by the Charter. Bracton does not admit that the -king’s justices were not “peers” of barons; but deduces their disability -from the narrower consideration that the king, through his officials, -ought not to be judge in his own behalf, since his interests in escheats -might bias his judgment. This is the reason why, from Bracton’s day to -our own, “the privilege of peers,” which gradually assumed its modern -form, has never extended to misdemeanours, since such convictions never -involved forfeiture or escheat to the Crown. - ------ - -Footnote 844: - - Pike, _House of Lords_, 173. See also Bracton, f. 119; Pollock and - Maitland, I. 393. - ------ - -The manner of giving effect to this concession is noteworthy. The -_judicium parium_ was secured to earls and barons in later reigns, not -merely by giving seats on the judicial bench to a few holders of -“baronies,” but by bringing the case before the entire body of earls and -barons in _commune concilium_. What the barons got at first was -“judgment” by peers. The actual “trial” was the “battle,” the -fellow-peers acting as umpires and enforcing fair play.[845] Although -new modes of procedure came to prevail, the Court of Peers continued its -control, and the _judgment_ of peers gradually passed into the modern -_trial_ by peers.[846] The subject has been further complicated by the -gradual growth of the modern conception of a “peerage,” embracing -various grades of “nobles.” In essentials, however, the rights of a -baron (or of any magnate of higher grade) accused of crime have remained -unchanged from the days of Henry III. to our own. The privilege of -“trial by peers,” whatever the reason underlying it, still extends to -treason and felony, and is still excluded from misdemeanours. When -competent it still takes place before a "Court of Peers"—namely, the -House of Lords if Parliament is in session, and the Court of the Lord -High Steward if not. Petty offences committed by peers, like those -committed by commoners, come before the ordinary courts of law. Under -these limitations, then, the privilege of a peer to be tried only in the -House of Lords (or in the Court of the Lord High Steward) has been for -centuries a reality in England for earls and barons, and also for -members of those other ranks of the modern “peerage” unknown in -1215—dukes, marquesses, and viscounts.[847] - ------ - -Footnote 845: - - “The trial, therefore—the ascertaining of the fact—was, though under - the direction and control of the Court of Peers, by battle; but the - judgment on the trial by battle was to be given by the peers.” Pike, - _House of Lords_, 174. - -Footnote 846: - - Pike, _Ibid._, 174–9. - -Footnote 847: - - The privilege was extended to peeresses by the statute 20 Henry VI. c. - 9. - ------ - -(_b_) _For tenants of a mesne lord_, however, no similar privilege has -been established, even in a restricted form. In charges of felony, as in -those of misdemeanour, all freemen outside the peerage are tried, and -have been tried for many centuries past, in the ordinary courts of law. -There is no privileged treatment for the knight or the landed gentleman. -All are judged in the same tribunals and by the same procedure. Private -feudal courts never recovered from the wounds inflicted by Henry II. The -clauses of Magna Carta which sought to revive them were rendered -nugatory by legal fictions or simply by neglect. - -(4) _Civil pleas._ Various attempts were made by the barons as a class, -or by its influential members, to make good a claim to _judicium parium_ -in civil cases.[848] The chief anxiety, perhaps, of the men of 1215 was -to save their estates and castles from disseisin consequent on such -pleas. Yet the barons’ efforts in this direction were entirely -unsuccessful. The House of Lords (except in cases involving the dignity -or status of a peer) has never claimed to act as a court of first -instance in civil cases to which a peer was a party. Noble and commoner -are here perfectly on a level. No “peer of the realm” has for many -centuries asked to plead before a special court of his peers in any -ordinary non-criminal litigation, whether affecting his real or his -personal estate. - ------ - -Footnote 848: - - The Earl of Chester claimed it in 1236-7, and the Earl of Gloucester - (in a special form as a lord marcher) in 1281. See Pollock and - Maitland, I. 393, n. - ------ - -VII. _Erroneous Interpretations._ The general tendency to vagueness and -exaggeration has already been incidentally discussed. Two mistakes of -unusual persistence require more detailed notice. - -(1) _The identification of_ judicium parium _with trial by jury_. The -words of the present chapter form the main, if not the sole, ground on -which this traditional error has been based.[849] The mistake probably -owes its origin to a not unnatural tendency of later generations of -lawyers to explain what was unfamiliar in the Great Charter by what was -familiar in their own experience. They found nothing in their own day to -correspond with the _judicium parium_ of 1215, so far at least as -affected those who were not Crown tenants; they found nothing in Magna -Carta (unless it were this clause) to correspond with their own trial by -jury: therefore they identified the two, interpreting the present -chapter as a general guarantee of the right to trial by jury.[850] Mr. -Reeves, Dr. Gneist, and other writers long ago exposed this error, but -the most conclusive refutations are those recently given by Prof. -Maitland and Mr. Pike. The arguments by which these writers prove that -“judgment by peers” is one thing and the “verdict of a jury” quite a -different thing are of a somewhat technical nature;[851] but as their -importance is far-reaching they must be explained, however briefly. They -seem to be mainly three in number: - ------ - -Footnote 849: - - Cf. _supra_, pp. 158-163. - -Footnote 850: - - The erroneous identification of judgment of peers with trial by jury - can be found far back in legal history. Pollock and Maitland, II. - 622-3, n., trace it to within a century of Magna Carta. "This mistake - is being made already in Edward I.’s day; Y. B. 30-1 Edward I., p. - 531.“ In spite of modern research the error dies hard. It appears, - _e.g._, in Thomson, _Magna Charta_, 223, and in Taswell-Langmead, - _Const. Hist._, 110. It was repeated only the other day by so high an - authority as Dr. Goldwin Smith in his recently published work, ”_The - United Kingdom_," I. 127, where he maintains that chapter 39 of Magna - Carta “affirms the right of trial by jury.” - -Footnote 851: - - Pollock and Maitland, I. 152, n., and Pike, House of Lords, 169. - ------ - -(_a_) The criminal petty jury cannot here be intended, since it had not -been invented in 1215:[852] to introduce trial by jury into John’s great -Charter is an unpardonable anachronism. (_b_) The barons would have -repudiated trial by jury if they had known it. They desired (here as in -chapter 21) that all questions affecting them should be “judged” before -fellow barons, and in the normal case, by the _duellum_. They would have -scorned to submit to the verdict of “twelve good men” of their own -locality. Their inferiors must have no voice in determining their guilt -or innocence. This sentiment was shared by the tenants of mesne lords. -(_c_) _Judgment_ and _verdict_ were essentially different. The function -of a petty jury (after it _had_ been invented) was to answer the -specific question put to it. The insurgent barons demanded more than -this: they asked a decision on the whole case.[853] The “peers” who -judged presided over the proceedings from beginning to end, appointing -the proof they deemed appropriate, sitting as umpires while its -fulfilment was essayed, and giving a final decision as to success or -failure therein. - ------ - -Footnote 852: - - Cf. _supra_, p. 161. - -Footnote 853: - - Cf. Pike, _Ibid._, 169. “From the time when trial by jury first - commenced, either in civil or in criminal cases, to this present end - of the nineteenth century, no jury ever did or could give judgment on - any matter whatsoever.” The difference between the ancient and modern - conceptions of judgment, however, must not be lost sight of. - ------ - -(2) _Magna Carta and arbitrary commitment._ A second erroneous theory -has still to be discussed. The Petition of Right, as already stated, -treats Magna Carta as prohibiting the Crown from making arrests without -a warrant showing the cause of detention; and the earlier commentators -further interpreted it as making all acts of arbitrary imprisonment by -the Crown absolutely illegal, although strong reasons of state might -urge the detention of dangerous individuals. Hallam, for example, -declares that from the era "of King John’s Charter, it must have been a -clear principle of our institutions that no man can be detained in -prison without trial." Yet every king of England from the days of John -Lackland to those of Charles Stewart, claimed and exercised the -prerogative of summarily committing to gaol any man suspected of evil -designs against the Crown or Commonwealth. Strong kings used this power -freely to remove those whom they wished to silence. Frequently no cause -of arrest was mentioned, no explanation given, except the words "by the -king’s command." During all these centuries the legality of such -procedure was never challenged as contrary to Magna Carta, or on any -other ground. Even the famous protest of the judges of Queen Elizabeth, -asserting the existence of legal limits to the royal prerogative of -commitment, proves the lawfulness of the general practice to which it -makes comparatively insignificant exceptions. Such rights inherent in -the Crown, dangerous undoubtedly to liberty but yet perfectly legal, -were never seriously challenged until the struggle between Charles I. -and his parliaments had fairly begun. Then it was that old precedents -were eagerly sought out and put to new uses. Then only was it suggested, -for the first time, that Magna Carta was intended to prohibit arbitrary -commitments at the command of the Crown. Such was the argument -deliberately put forth in 1627 during the famous proceedings known -sometimes as Darnell’s case and sometimes as the case of the Five -Knights. Heath, the Attorney-General, easily repelled this contention: -“the law hath ever allowed this latitude to the king, or his privy -council, which are his representative body, in extraordinary cases to -restrain the persons of such freemen as for reasons of state they find -necessary for a time, without for this present expressing the causes -thereof.”[854] The parliamentary leaders, however, too grimly in earnest -to be deterred by logic, were far from abandoning their error because -Heath had unanswerably exposed it. They embodied it, on the contrary, in -the Petition of Right, which condemned the Crown’s practice of -imprisoning political offenders “without any cause showed” (or only _per -speciale mandatum regis_) as contrary to the tenor of Magna Carta—an -effective contention as a political expedient, but essentially unsound -in law. - ------ - -Footnote 854: - - See _State Trials_, III., p. 1, and S. R. Gardiner, _History_, VI. - 214. - ------ - - - - - CHAPTER FORTY. - -Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam. - - To no one will we sell, to no one will we refuse or delay, right or - justice. - - -This chapter, like the preceding one with which it is so closely -connected, has had much read into it by commentators which would have -astonished its original framers. The application of modern standards to -ancient practice has resulted in a complete misapprehension. The sums -customarily received by John, as by his predecessors, at every stage of -legal procedure, were not necessarily the wages of deliberate injustice. -This is evident from several considerations. Thus litigants paid fines -for redress against the Crown itself; in disputes between two private -parties, the sum offered by the highest bidder was by no means always -accepted; sometimes justice was rendered to one litigant gratis in spite -of a heavy offer by the other. Many payments, then, were not bribes to -an unjust judge, but merely expedients for hastening the law’s delays, -or to ensure a fair hearing for a good plea, or to obtain some unusual -but not unfair expedient, such as a peculiarly potent writ or the -hearing of a case in the exchequer, which would ordinarily have been -tried elsewhere. If the royal courts charged higher rates for justice -than the feudal courts, they supplied a better article. When Henry of -Anjou threw open the doors of his court to all freemen who chose to pay -for writs, he found a ready market. These writs differed widely in -price. Some from an early date were issued whenever applied for (writs -_de cursu_) and at a fixed sum: others were granted only as marks of -favour or after a bargain had been struck. Specially quick or cogent -procedure had to be specially paid for. It would thus appear that the -system of John was not open to the unqualified and violent condemnation -which it usually receives. Hallam’s language is too sweeping when he -says: “A law which enacts that justice shall neither be sold, denied, -nor delayed, stamps with infamy that government under which it had -become necessary.”[855] It was John’s abuse of the system, not the -system itself, which called for condemnation; and the worst that could -be said against it, according to medieval standards, was that it lent -itself too readily to abuse. - ------ - -Footnote 855: - - _Middle Ages_, II. 451. - ------ - -If the barons really desired that John should continue to dispense royal -justice in the new fields occupied by his father, but should do so -without pecuniary return, their demands were unfair and even absurd; but -probably they only wished a strict adherence to the customary rules and -charges which they had come to expect as normal in connection with royal -tribunals. The system, indeed, has many objectionable features to modern -critics; but in the twentieth century, as in the thirteenth, justice -cannot be had for nothing; and the would-be litigant with a good claim -but a slender purse will be well advised to acquiesce in a small loss -rather than incur the certainty of losing as much again in -extra-judicial outlays, and the risk of losing many times more in the -judicial expenses of a protracted litigation. The lack of free justice -is a reproach which the men of to-day cannot with good grace fling at -the administration of John. - -As the evils complained of are often exaggerated, so also are the -reforms promised by this chapter of Magna Carta. John is usually held to -have agreed to the abolition of payments of every sort for judicial -writs and other fees of court. Justice, unlike other valuable -commodities, was, it would appear, to be obtained for nothing—an ideal -never yet attained in any civilized community. A body of highly trained -clerks could not be kept by the king to issue writs gratuitously to all -who asked them, and a staff of judges, “who knew the law and meant to -keep it,” to determine pleas which would bring in no return to the -Crown. - -The intention of those who framed this chapter was probably to secure a -more moderate and reasonable measure of reform. Abuses of the system -were to be redressed.[856] Unfortunately it was not easy to define -abuses—to determine where legitimate payments stopped and illegitimate -ones began. Prohibitive prices ought not to be charged for writs _de -cursu_; but was the Crown to have no right to issue writs of grace on -its own terms? Plaintiffs who had any special reason for haste -frequently paid to have their suits heard quickly: was that an -abuse?[857] - ------ - -Footnote 856: - - Cf. Madox, I. 455, "By _nulli vendemus_ were excluded the excessively - high fines: by _nulli negabimus_, the stopping of suits or - proceedings, and the denial of writs: by _nulli differemus_ such - delays as were before wont to be occasioned by the counterfines of - defendants (who sometimes would outbid the plaintiffs) or by the - prince’s will." - -Footnote 857: - - Fines for this purpose were frequent under Henry II. and his sons. - Madox, I. 447, cites many examples. Thus in 1166 Ralph Fitz Simon paid - two marks “for speeding his right” (_pro recto suo festinando_). The - practice continued under Henry III. in spite of Magna Carta. Bracton’s - _Note Book_ cites a hard case (No. 743): Henry III. was claiming - prerogative wardship where it was illegal under c. 37 of Magna Carta - (_q. v._). The court might have delayed hearing the mesne lord’s plea - until the wardship was ended; but he paid five marks _pro festinando - judicio suo_. The fine was said to be given “willingly” (_sponte_). - Did the use of this word make possible an evasion of c. 40 of the - Charter? - ------ - -Whatever the intention may have been, the practical effect of the clause -was _not_ to secure the abolition of the sale of writs and justice. The -practice under Henry III. has been described by our highest authority. -"Apparently there were some writs which could be had for nothing; for -others a mark or a half-mark would be charged, while, at least during -Henry’s early years, there were others which were only to be had at high -prices. We may find creditors promising the king a quarter or a third of -the debts that they hope to recover. Some distinction seems to have been -taken between necessaries and luxuries. A royal writ was a necessary for -one who was claiming freehold; it was a luxury for the creditor exacting -a debt, for the local courts were open to him and he could proceed there -without writ. Elaborate glosses overlaid the king’s promise that he -would sell justice to none, for a line between the price of justice and -those mere court fees, which are demanded even in our own day, is not -easily drawn. That the poor should have their writs for nothing, was an -accepted maxim."[858] - -Probably the practice before and after 1215 showed few material -differences. Some of the more glaring abuses of the system were checked: -that was all.[859] Parliament in subsequent reigns had frequently to -petition against the sale of justice in breach of Magna Carta.[860] The -king usually returned a politic answer, but was careful never to -surrender his right to exact large sums for writs of grace. Richard II., -for example, replied: “Our lord the king does not intend to divest -himself of so great an advantage, which has been continually in use in -Chancery as well before as after the making of the said charter, in the -time of all his noble progenitors who have been kings of England.”[861] - ------ - -Footnote 858: - - Pollock and Maitland, I. 174. Cf. _Ibid._, II. 204, and authorities - cited. - -Footnote 859: - - Madox, I. 455, says: “And this clause in the great Charters seems to - have had its effect. For ... the fines which were paid for writs and - process of law were more moderate after the making of those great - Charters than they used to be before.” - -Footnote 860: - - Instances are collected by Sir T. D. Hardy in _Rot. de oblatis_, p. - xxi. See also Stubbs, _Const. Hist._, II. 636-7. - -Footnote 861: - - _Rot. Parl._, III. 116, cited Stubbs, _Const. Hist._, II. 637. - ------ - -It is thus evident that Magna Carta did not put down the practice of -charging heavy fees for writs. Yet this chapter, although so frequently -misunderstood and exaggerated, is still of considerable importance. It -marks, for one thing, a stage in the process by which the king’s courts -gradually outdistanced all rivals. In certain provinces, at least, royal -justice was left in undisputed possession. In these the grievance was -not that there was too much royal justice, but that it was sometimes -delayed or denied. Here, then, even in the moment of John’s most bitter -humiliation we find evidence of the triumph of the policy of the Crown -inaugurated half a century earlier by his far-seeing father. - -It is not to such considerations as these, however, that this chapter -owes the prominence usually given to it in legal treatises; but rather -to the fact that it has been broadly interpreted as a universal -guarantee of impartial justice to high and low; and because when so -interpreted it has become in the hands of patriots in many ages a -powerful weapon in the cause of constitutional freedom. Viewing it in -this light, Coke throws aside his crabbed learning and concludes with -what is rather a rhapsody than a lawyer’s commentary: “as the gold-finer -will not out of the dust, threads, or shreds of gold, let pass the least -crumb, in respect of the excellency of the metal; so ought not the -learned reader to pass any syllable of this law, in respect of the -excellency of the matter.”[862] - ------ - -Footnote 862: - - _Second Institute_, 56. - ------ - - - - - CHAPTER FORTY-ONE. - -Omnes mercatores habeant salvum et securum exire de Anglia, et venire in -Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad -emendum et vendendum, sine omnibus malis toltis, per antiquas et rectas -consuetudines, preterquam in tempore gwerre, et si sint de terra contra -nos gwerrina; et si tales inveniantur in terra nostra in principio -gwerre, attachientur sine dampno corporum et rerum, donec sciatur a -nobis vel capitali justiciario nostro quomodo mercatores terre nostre -tractentur, qui tunc invenientur in terra contra nos gwerrina; et si -nostri salvi sint ibi, alii salvi sint in terra nostra. - - All merchants shall have safe and secure exit from England, and entry - to England, with the right to tarry there and to move about as well by - land as by water, for buying and selling by the ancient and right - customs, quit from all evil tolls, except (in time of war) such - merchants as are of the land at war with us. And if such are found in - our land at the beginning of the war, they shall be detained, without - injury to their bodies or goods, until information be received by us, - or by our chief justiciar, how the merchants of our land found in the - land at war with us are treated; and if our men are safe there, the - others shall be safe in our land. - - -Merchants and merchandise, like all other classes and interests, had -suffered severely from John’s greed, unrestrained by regard for the -rights of others. The control of commerce was specially reserved for the -king’s personal supervision. No law or traditional usage trammelled him -in his dealings with foreign merchants, who were dependent on royal -favour, not on the law of the land, for the privilege of trading and -even for personal safety. No alien merchant could enter England or leave -it, nor take up his abode in any town, nor move from place to place, nor -buy and sell, without paying heavy tolls to the king. This royal -prerogative proved a profitable one.[863] - ------ - -Footnote 863: - - So far all authorities are agreed, though a difference of opinion - exists as to the source of these prerogatives. Thus (_a_) Stephen - Dowell, _History of Taxation and Taxes in England_, I. 75, considers - that the duties on imports and exports were in their origin of the - nature of voluntary dues paid by foreign merchants in return for - freedom of trade and royal protection; (_b_) Hubert Hall, _Customs - Revenue of England_, I. 58-62, considers the prerogative as merely one - aspect of purveyance, that is of the right of the king to requisition - what he required for his own needs and those of his household. Many - such “theories” are anachronisms. The prerogative was founded on - fact—on the brute force at the Crown’s disposal. Kings took what they - could, and left future ages to invent theories to justify or explain - their actions. - ------ - -John increased the number and amount of such exactions, to the detriment -alike of foreign traders and of their customers. Magna Carta, therefore, -sought to restrain this branch of prerogative, forbidding him to exact -excessive tolls for removing obstacles of his own creating. This -benefited the merchants by securing to them certain rights, which may -perhaps be analysed into three: safe-conduct, that is protection of -their persons and goods from violence; liberty to buy and sell in time -of peace; and a confirmation of the ancient and just rates of “customs,” -with the abolition of John’s “evil tolls” or additional exactions. - -So far, the general purport of the enactment is undoubted; but -discussions have arisen on several important points, such as the -nationality of the traders in whose favour it was conceived; the exact -nature of the “evil tolls” abolished; the motives for the rules -enforced; and the relations between denizens and foreign traders. - -I. _Magna Carta favours alien Merchants._ The better opinion would seem -to be that this chapter applied primarily to foreign traders from -friendly states. Attempts have been made, indeed, to argue otherwise, -namely, that denizens were to benefit equally with strangers, Magna -Carta holding the balance even between them. Such was the purport of a -learned discourse delivered in the House of Commons by William Hakewill, -Barrister of Lincoln’s Inn, in 1610, during the debate on John Bate’s -case.[864] His main argument was that certain statutes of the reign of -Edward III.,[865] in seeking to confirm and expand the provisions of -Magna Carta, did clearly embrace denizens as well as aliens. Yet the -framers of an Act in the fourteenth century may well have misunderstood -the tenor of John’s Charter, or may have deliberately altered it. - ------ - -Footnote 864: - - See _State Trials_, II. 407-475, and especially 455-6. - -Footnote 865: - - _E.g._ 2 Edward III. c. 9 and 14 Edward III., stat. 1, c. 21. - ------ - -Intrinsic and extrinsic evidences combine to create a strong presumption -that Magna Carta referred chiefly, perhaps exclusively, to merchants of -foreign lands.[866] Denizens trading in England did not require those -“safe conducts” which form the chief concession in this chapter; and -their rights of buying and selling were already protected in another -way; for independent traders were unknown, all merchants being banded -into guilds in the various towns whose privileges (“_omnes libertates et -liberas consuetudines_”) were guaranteed to them in a previous part of -the great Charter.[867] It was the alien merchants who required special -protection, since they had, strictly speaking, no status in the eye of -the law, and held their privileges from the king, who, moving along the -line of least resistance, frequently preferred to overtax them rather -than his own subjects.[868] The Crown might vouchsafe the protection -they needed either willingly or grudgingly, and under conditions to be -altered at discretion, but never unless well paid for. The policy of -Henry II. and his sons was to favour merchant strangers, but to exact in -return the highest dues possible, restrained only by an enlightened -self-interest which stopped short at the point where trade would -languish by becoming unprofitable. The Exchequer Rolls and the Patent -Rolls afford many illustrations of how individual traders or families -made private bargains with the Crown for trading privileges. In 1181 -Henry obtained two falcons for granting leave to export corn to Norway. -In 1197, a certain Hugo Oisel owed 400 marks for licence to trade in -England and in Richard’s other lands in time of war as well as of -peace.[869] - ------ - -Footnote 866: - - Two-thirds of the chapter is occupied in explaining that merchant - strangers of unfriendly States are not to benefit from it. Mr. - Hakewill was aware of this, but sought to evade the natural inference - by subtleties which are not convincing. - -Footnote 867: - - See _supra_, under c. 13. - -Footnote 868: - - For the legal position of aliens, see Pollock and Maitland, I. - 441-450. - -Footnote 869: - - See _Pipe Rolls_, 27 Henry II. and 8 Richard I., cited Madox, I. - 467-8. - ------ - -At the commencement of John’s reign, traders resident in England seem -collectively to have obtained confirmation of their privileges. That -king issued Letters Patent to the Mayor of London, to the magistrates of -many smaller towns, and to the sheriffs of the southern counties of -England, directing them, in terms closely resembling those of Magna -Carta, to allow to all merchants of whatsoever land safe coming and -going, with their wares.[870] - ------ - -Footnote 870: - - See _Rot. Chart._, 60 (5th April, 1200). - ------ - -These arrangements were merely temporary. John did not intend that any -such general grant should prevent him from exacting further payments -from individuals as occasion offered. For example, Nicolas the Dane -promised a hawk each time he entered England, that he might come and go -and trade “free of all customs which pertain to the king.”[871] Such -customary dues, at the usual rates, were not abolished by the Charter, -but only the arbitrary additional payments for which there was no -warrant. - ------ - -Footnote 871: - - See _Pipe Roll_, 6 John, cited Madox, I. 469, where other - illustrations will be found. Cf. also _Rot. Pat._, 170. 170_b_, 171, - 172_b_. - ------ - -On this point, then, Magna Carta contained no innovations, and the same -is true of its provision for reprisals against traders from lands where -English merchants were ill-treated. On the outbreak of war the Charter -directs that merchants of the enemy’s nation should be detained until -the king ascertained how his own subjects were treated in the enemy’s -territory. This is merely declaratory of the previous practice, of which -an illustration may be found in the terms of a writ of August, 1214, -which directed the bailiffs of Southampton to detain all Flemings and -their goods pending further instructions.[872] There were thus -precedents for those rules for foreign traders, which have aroused the -admiration of Montesquieu.[873] - ------ - -Footnote 872: - - In the same writ John bade them allow to depart freely all vessels of - the land of the Emperor or of the King of Scotland after taking - security that they would sail straight to their own countries and take - with them none but their own crews. See _Rot. Claus._, I. 211, and cf. - series of writs in I. 210. - -Footnote 873: - - See _De l’Esprit des Lois II._ 12 (ed. of 1750, Edinburgh), “_La - grande chartre des Anglois défend de saisir et de confisquer en cas de - guerre les merchandises des négociants étrangers, à moins que ce ne - soit par représailles. Il est beau que la nation Angloise ait fait de - cela un des articles de sa liberté!_” - ------ - -II. _Customs and Tolls._ “_Consuetudines_” is in this passage used in -its narrower financial sense, relating to those duties on imports and -exports which are still specially called “customs” at the present day, -and to various local dues as well. “Tolls” when not stigmatized as “evil -tolls” would seem to be practically synonymous with these customs. The -Crown had at first taken from the defencelessness of merchants, -whatever, on each occasion, it thought fit. Practice soon established -rules as to the normal rates considered fair in various circumstances. -When a ship-load of foreign wine arrived, the normal toll was “one cask -from a cargo of ten up to twenty casks, and two casks from a cargo of -twenty or more.”[874] From other merchandise a share was claimed of a -fifteenth or sometimes a tenth of the whole. Such tolls, if originally a -species of blackmail, had in John’s day come to be regarded as a -legitimate branch of royal revenue. Any arbitrary increase, however, was -condemned by public opinion, and ultimately by Magna Carta, as a “_mala -tolta_.” - ------ - -Footnote 874: - - S. Dowell, _Hist. of Taxation_, I. 83, citing Madox, I. 525-9 [2nd ed. - I. 765-770], and _Liber Albus_, I. 247-8. - ------ - -It must be remembered, however, that the king was not the only one who -exacted tolls. Every town in England, and many feudal magnates, by -prescriptive usage or by royal grant, levied payments on all goods -bought or sold at various fairs and markets, or that entered the city -gates, or were unloaded at river wharves, or traversed certain roads. -The ambition of every borough was to increase its own franchises at the -expense of its neighbours. The free customs of Bristol, for example, -meant not only that the men of that city should have freedom from tolls -inflicted by others, but that they should have the right to inflict -tolls upon those others. A whole network of such customs and -restrictions impeded the free exchange of commodities in every part of -England. Magna Carta had no intention of sweeping these away, so far as -they were “just and ancient”; and it is probable that the prohibition -against arbitrary increase of tolls was directed only against the Crown. - -III. _The Motives prompting these Provisions._ It has been not unusual -to credit the framers of Magna Carta with a liberal policy of quite a -modern flavour; they are made free-traders and credited with a knowledge -of economic principles far in advance of their contemporaries. This is -an entire misconception: Englishmen in the beginning of the thirteenth -century had formulated no far-reaching theories of the rights of the -consumer, or the advantages of the policy of the open door. The home -traders were not consenting parties to this chapter, and would have -bitterly resented any attempt to place foreigners on an equal footing -with the protected guilds of the English boroughs. The barons, in -inserting this stipulation among the promises wrung from John, acted on -their own initiative and from purely selfish motives. The rich nobles, -both lay and ecclesiastic, desired that nothing should prevent the -foreign rivals of the insular burghers from importing the wines and rich -apparel which England could not produce. John, indeed, as a consumer of -continental luxuries, partially shared their views, but his -short-sighted policy threatened to strangle foreign trade by gradually -increasing the burdens attached to it, until it ceased to be -remunerative. The barons, therefore, in their own interests, not in -those of the foreign merchants, still less in those of native traders, -demanded that the custom duties should remain at their old fixed rates. -In adopting this attitude, they showed their selfish indifference to the -equally selfish claims of English traders, who, jealous of foreigners -alike in their home markets and in the carrying trade, desired a -monopoly for themselves. Every favour shown to foreign merchants was an -injury done to the guilds of the chartered boroughs. This chapter thus -shows a lack of gratitude on the barons’ part for the great service -rendered to their cause by their allies, the citizens of London. John, -on the other hand, would have little reluctance in punishing the men of -his capital who, with the ink scarce dry on their new municipal charter, -had not scrupled to desert his cause.[875] It must have been with grim -pleasure that, on 21st July, 1215, in strict conformity with the tenor -of Magna Carta, he addressed a writ to King Philip inviting reprisals -upon London merchants in France in certain contingencies.[876] - ------ - -Footnote 875: - - See _supra_, 41–2. - -Footnote 876: - - See _New Rymer_, I. 135: “Know that we have ordered the mayor and - sheriffs of London to allow merchants of your land to remove their - goods and chattels from London, without hindrance to doing thence - their will; and that if they do not, you may, if it please you, grieve - and molest the men of that town (_illius villae_) in your power, - without our reckoning it a breach of truce on your part.” - ------ - -In the reissue of 1216 the privileges conferred on merchant strangers -were confined to such as had not been “publicly prohibited beforehand.” -This was a material alteration, the effect of which was to restore to -the king full discretionary authority over foreign trade, since he had -only to issue a general proclamation, and then to accept fines for -granting exemption from its operation. - -IV. _English Boroughs and Merchant Strangers._ The quarrel between home -and alien traders underwent many vicissitudes during several succeeding -centuries, the Crown taking now one side, and now the other, as its -pecuniary interests happened to dictate for the moment. No glimmerings -of the doctrine of free trade can be traced: the merchants of each town, -banded in their guilds, directed their endeavours towards securing -rights of exclusive trading for themselves. It is true that the men of -London were scarcely more jealous of the privileges of the citizens of -Rouen or of Paris than of those of York or of Lincoln; their ambition -was to inflict restrictions upon all rivals alike. The _Liber -Custumarum_, a compilation of the early thirteenth century, lays down -minute rules for the regulation of foreign traders in London. The -merchant stranger had to take up his abode in the house of some citizen. -He was strictly prohibited from engaging in retail trade and from -purchasing articles in process of manufacture. He could buy only from -those who had the freedom of the city, and could not re-sell the goods -within the borough walls. He was allowed to sell only to burgesses of -London, except on three specified days of the week. Such were a few of -the rules which the Londoners enforced on all traders within their -gates. The king, however, intermittently encouraged foreigners. Under -the fostering protection of Henry III., Lombards and Provençals settled -in considerable numbers in the capital; and with the connivance of the -king, infringed these rules. When the Londoners complained, Henry -refused relief. Their loyalty thus shaken, they sided with the king’s -opponents in the Barons’ War, and when the royalist cause triumphed at -Evesham, the capital shared in the punishment meted out to the Crown’s -opponents. Prince Edward in 1266 was nominated protector of foreign -merchants in England, whose cause was temporarily triumphant. At the -accession of that Prince, London bought itself back into royal favour -for the time being. At the same period an attempt was made to define -what tolls or customs might be taken by the Crown. In 1275, in Edward’s -first parliament, a tariff was fixed by “the prelates, magnates, and -communities at the request of the merchants” on most of what then formed -the staple exports of England: half a mark on every sack of wool, half a -mark on every three hundred wool-fells (that is, untanned skins with the -fleeces on), and one mark on every load of leather. - -These were subsequently called _magna et antiqua custuma_, to -distinguish them from an additional fifty per cent., levied from foreign -merchants at a later date and known as _parva et nova custuma_. The -settlement of 1275 was by no means final. New disputes arose; and in -1285 Edward I. confiscated the liberties of London, suppressed what he -characterized as abuses, and favoured the aliens. In 1298 the franchises -of the capital were restored, and very soon the abuses complained of -began anew. Edward retorted in 1303 by a special ordinance known as the -_carta mercatoria_ in favour of their foreign rivals, by the terms of -which the provisions of the present chapter of Magna Carta became at -last a reality. This new charter, which was the result of a bargain -struck between the Crown and the alien traders, conferred various -privileges and exemptions in return for the increased rates of duty now -imposed and known henceforth as _parva et nova custuma_. Edward I. made -several attempts to exact the higher rates from denizens as well as from -strangers; but in this he failed. In 1309 a Petition of Parliament was -presented against the exaction of the “new customs,” declaring them to -be in contravention of Magna Carta. - -In 1311 a temporary community of economic and political interests -resulted in an alliance between the English merchants and the English -baronage, whose combined efforts forced the “Ordinances” upon Edward -II., compelling him for a time to reverse his father’s policy of -favouring foreigners at the expense of native merchants. It is -unnecessary to follow the checkered fortunes of these Ordinances, -frequently enforced and as frequently abolished, according as the -fortunes of the barons or of Edward II. were for the moment in the -ascendant. During the reign of Edward III. the deep-rooted quarrel -between home and alien merchants continued; and many changes of policy -were adopted by the Crown. The statute of 1328 which abolished the -“staples beyond the sea and on this side” provided “that all merchant -strangers and privy may go and come with their merchandises into -England, after the tenor of the Great Charter.”[877] Seven years later -this was confirmed by an act which in considerable detail placed -strangers and denizens on an exact equality in all branches of trade, -both wholesale and retail, under the express declaration that no -privileged rights of chartered boroughs should be allowed to interfere -with its enforcement.[878] While this statute merely repeated and -applied the general doctrine of the present chapter of Magna Carta, it -directly infringed the provisions of chapter 13.[879] Such sweeping -regulations were in advance of their age and could not be carried out -without revolutionising the entire medieval scheme of trade and -commerce, which depended on merchant guilds, town charters and local -monopolies. The influence of the English boroughs and their political -allies was strong enough to make the strict enforcement of such -legislation impossible; and later statutes, bowing to the inevitable, -restored the privileges of the boroughs, while continuing to enunciate -an empty general doctrine of free trade to foreigners.[880] The English -boroughs, to which Parliament in the reign of Richard II. thus restored -their franchises and monopolies, were able effectually to exclude -foreign competition, in certain trades at least, from within their -walls, for four centuries, until the Statute of 1835 ushered in the -modern era of free trade.[881] - ------ - -Footnote 877: - - 2 Edward III. c. 9. - -Footnote 878: - - See 9 Edward III. c. 1 and cf. 25 Edward III., stat. 4, c. 7. - -Footnote 879: - - Cf. _supra_, pp. 290-1, where the inconsistency between the two parts - of the Great Charter is pointed out. - -Footnote 880: - - See 2 Richard II., stat. 1, c. 1 and 11 Richard II. c. 7. - -Footnote 881: - - See 5 and 6 William IV. c. 76, s. 14. - ------ - - - - - CHAPTER FORTY-TWO. - -Liceat unicuique de cetero exire de regno nostro, et redire, salvo et -secure, per terram et per aquam, salva fide nostra, nisi tempore gwerre -per aliquod breve tempus, propter communem utilitatem regni, exceptis -imprisonatis et utlagatis secundum legem regni, et gente de terra contra -nos gwerrina, et mercatoribus de quibus fiat sicut predictum est. - - It shall be lawful in future for any one (excepting always those - imprisoned or outlawed in accordance with the law of the kingdom, and - natives of any country at war with us, and merchants, who shall be - treated as is above provided) to leave our kingdom and to return, safe - and secure by land and water, except for a short period in time of - war, on grounds of public policy—reserving always the allegiance due - to us. - - -The terms of this permission for free intercourse between England and -foreign lands are peculiarly wide, the exceptions being reasonable and -necessary. Prisoners obviously could not leave our shores, nor outlaws -return to them: the case of merchants from hostile states had already -been provided for in a liberal spirit; while the temporary restriction -of intercourse with the enemy on the outbreak of hostilities was -eminently reasonable. - -Although the provision is thus quite general in its scope, embracing all -classes and ranks of men, it was peculiarly welcome to the clergy, as -enabling them without a royal permit to proceed to Rome, there to -prosecute their appeals or press their claims for preferment. Thus -considered, it contains a virtual repeal of article 4 of the -Constitutions of Clarendon of 1166, which forbade archbishops, bishops, -and parsons (_personæ_) of the kingdom to leave that kingdom without the -king’s licence. The grant of freedom of intercourse in 1215 thus opened -a door for the Church to encroach on the royal prerogative; and for that -reason it was omitted from the reissue of 1216, never to be replaced. A -boon was thus withdrawn from all classes from fear that it might be -abused by the ecclesiastics. Henry III. took advantage of the omission -in order to restrain the movements of clergy and laity alike. Those who -left the country without the royal licence had frequently to pay -fines.[882] - ------ - -Footnote 882: - - _E.g._ Coke (_Third Institute_, p. 179) cites from _Rot. finium_ of 6 - Henry III. and _Rot. claus._ of 7 Henry III. the following case: - “_Willielmus Marmion clericus profectus est ad regem Franciae sine - licentia domini regis, et propterea finem fecit_.” The practice had - apparently been much the same prior to Magna Carta. _E.g._ Madox (I. - 3) cites from _Pipe Roll_ of 29 Henry II. how “_Randulfus filius - Walteri reddit compotum de XX marcis, quia exivit de terra Domini - Regis_.” - ------ - -The stringency with which this prerogative was at first enforced tended, -however gradually, to become more lax. The king still preserved the -right, but only exercised it by means of proclamations over particular -classes or on special occasions, the inference being that all not -actually prohibited were free to come and go as they pleased. Thus in -1352 Edward III. had it proclaimed throughout every county of England -that no earl, baron, knight, man of religion, archer, or labourer, -should depart the realm under pain of arrest and imprisonment.[883] The -fact that Edward found it necessary to issue such an ordinance, -autocratic and abhorrent to modern ideals as its terms now appear, -points to a decrease of royal power, as compared with that exercised by -Henry II., John, or Henry III. A further curtailment of prerogative may -be inferred from the terms of a Statute of Richard II., which, in -confirming the king’s power to prohibit free egress from England, does -so, subject to very wide exceptions. Under its provisions the Crown had -the right to prohibit the embarkation of all manner of people, as well -clerks as others, from every port and other place upon the sea-coast -under pain of forfeiture of all their goods, "except only the lords and -other great men of the realm, and true and notable merchants, and the -king’s soldiers," who were apparently in 1381 free to leave without the -king’s licence, although earls and barons had been prohibited in -1352.[884] Even if this statute confers on magnates, merchants, and -soldiers freedom to go abroad without royal licence (which is doubtful) -the powers of veto reserved to the Crown were still, to modern ideas, -excessive. It remained in force, however, until 1606, when it was -repealed under somewhat peculiar circumstances. After the union of the -crowns, King James, anxious to draw the bond closer, persuaded his first -English parliament to abrogate a number of old laws inimical to Scottish -interests. It was in this connection that the Act of Richard II. was -declared (in words, however, not limited to Scotland) to be “from -henceforth utterly repealed.”[885] Coke stoutly maintains that this -repeal left intact the Crown’s ancient prerogative, not founded upon -statute but on the common law, of which power the already-cited -Proclamation of Edward III. had been merely an emanation. He almost -seems, therefore, to argue that the Crown in the seventeenth century -retained authority which extended precisely over those classes mentioned -in the ordinance of 1352. - ------ - -Footnote 883: - - See Coke, _Ibid._, citing the Close Roll of 25 Edward III. - -Footnote 884: - - 5 Richard II., stat. 1, c. 2. - -Footnote 885: - - 4 James I. c. 1, s. 22. - ------ - -In any view, the prerogative of interfering with the subject’s freedom -to depart from England has never been completely taken from the Crown. -Yet, in the course of centuries a great change has been gradually -effected: the _onus_ has been shifted from the individual who wished to -leave the kingdom, on to the king who wished to detain him. While, under -John or Henry III., the subject required before embarking to obtain a -licence from the Crown, under later kings he was free to leave until -actually prohibited by a special royal writ. Coke[886] speaks of the -form originally used for this purpose, a form so ancient in his day as -to be already obsolete, known as _Breve de securitate invenienda quod se -non divertet ad partes externas sine licentia regis_. This was -superseded by the simpler writ _Ne exeat regno_ which is still in -use.[887] The sphere of this writ was restricted and altered: it ceased -to be an engine of royal tyranny and was never issued except as part of -the process of a litigation pending in the Court of Chancery. Regarded -always with suspicion by the courts of common law as a creature of -prerogative, it was for centuries the special instrument which prevented -parties to a suit in equity from withdrawing to foreign lands. Some -uncertainty exists as to the proper province of these writs at the -present day, since the Judicature Acts have merged the Court of Chancery -in the High Court of Justice.[888] - ------ - -Footnote 886: - - _Third Institute_, p. 178. - -Footnote 887: - - Its origin is obscure. See Beames, _Brief view of the writ of Ne - Exeat_, _passim_. - -Footnote 888: - - See _Encyclopaedia of Laws of England_, IX. 79. - ------ - -The use of such writs in this restricted sphere could not be reckoned an -oppressive interference with the liberty of the subject. The perfect -freedom to leave the shores of England and return at pleasure, accorded -by John’s Magna Carta, but immediately withdrawn as impracticable for -that age, has in the course of centuries been fully realized.[889] - ------ - -Footnote 889: - - On the whole subject of these writs, see Stephen, _Commentaries_, II. - 439-40 (ed. of 1899), and authorities there cited. - ------ - -Two phrases, occurring in this chapter, call for comment, although for -different reasons:—one as embodying an ancient legal doctrine, now -obsolete, the other as anticipating a characteristically modern point of -view. (1) _Salva fide nostra._ This short-lived clause of Magna Carta, -in granting freedom to leave the country, very properly provided that -mere absence from England should absolve no one from allegiance to his -king. The old doctrine of nationality was indeed a very stringent one. -The rule which prevailed was _Nemo potest exuere patriam_. Everyone born -in the land owed allegiance to its king—and this tie continued unbroken -until severed by the death of subject or sovereign; it could be broken -in no other way. According to this maxim, a man born a subject of the -king of England must remain his subject wherever he wandered. A breach -of the duties of allegiance, which were consequent thus on the mere -accident of birth, might expose the offender to the inhuman horrors -inflicted upon traitors. - -A series of statutes, culminating in the Naturalisation Act of 1870, -have entirely abrogated this ancient doctrine, and substituted one of -perfect liberty. Any native of Great Britain is now free to become the -subject of any foreign state; and the mere fact of his doing so -deliberately and with all necessary legal formalities, denudes him of -his British nationality, severs the tie of allegiance, and frees him -from the operation of the law of treason. The words “_salva fide -nostra_” no longer apply. - -(2) _Propter communem utilitatem regni._ The charter, in placing a -restriction on the right of free egress, during the actual continuance -of hostilities, declared that such restriction was to be imposed for the -common good of the kingdom, thereby enunciating what is generally -regarded as a very modern doctrine: John was to take action, not for his -own selfish ends but only _pro bono publico_. - - - - - CHAPTER FORTY-THREE. - -Si quis tenuerit de aliqua eskaeta, sicut de honore Wallingfordie, -Notingeham, Bolonie, Lancastrie vel de aliis eskaetis, que sunt in manu -nostra, et sunt baronie, et obierit, heres ejus non det aliud relevium, -nec faciat nobis aliud servicium quam faceret baroni si baronia illa -esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam -tenuit. - - If one who holds of some escheat (such as the honour of Wallingford, - of Nottingham, of Boulogne, of Lancaster, or of other escheats which - are in our hands and are baronies) shall die, his heir shall give no - other relief, and perform no other service to us than he would have - done to the baron, if that barony had been in the baron’s hand; and we - shall hold it in the same manner in which the baron held it. - - -This chapter reaffirms a distinction which had been recognized by Henry -II. but ignored by John. Crown tenants were divided into two classes, -according as their holdings had been originally granted by the Crown, or -by some mesne lord whose barony had subsequently escheated. The latter -class received preferential treatment from Henry II. for reasons to be -immediately explained. The older law of escheats was too vague to prove -an effective restraint on royal prerogative; the king, when a fief had -escheated to the Crown, might reckon grants made by its former owner as -void, refusing to acknowledge as binding upon him the titles of the -sub-tenants, treating all sub-tenancies as wiped out by the mere fact -that their lord’s fief had escheated to the Crown. A mesne lord, on the -contrary, had no similar rights over the sub-tenants of his tenant who -had suffered escheat. - -The king usually mitigated in practice the full severity of this theory, -confirming as of grace, or from motives of policy, or in return for -money, claims which he refused to admit as matter of right. The tenants -of escheated baronies were accepted as tenants _in capite_ of the -Crown.[890] Not only so; but Henry II. did not allow them to be -prejudicially affected by the change. The king would only take from them -those services and feudal dues which they had been wont to render to the -lord of the barony previous to its escheat. This just and lenient policy -explains the origin of the division of royal tenants into two classes; -tenants who held of Henry _ut de corona_, and tenants who held of him -_ut de escaeta_, _ut de honore_, or _ut de baronia_ (phrases used -synonymously).[891] In respect of such obligations as were heavier for -ordinary Crown tenants than for tenants of mesne lords, holders of Crown -fiefs _ut de escaeta_ were placed on the more favoured footing. Two -illustrations may be given. While tenants _ut de corona_ under Henry II. -had to pay large and arbitrary reliefs, those _ut de escaeta_ paid no -more than 100s. per knight’s fee.[892] Nor was their obligation of -“suit” (or attendance at the feudal court of the lord of the fief) to be -increased. “The tenants of any honour or manor which had come by escheat -to the Crown, were not suitors of the Curia Regis, but of the court of -the honour or manor which had so escheated.”[893] - ------ - -Footnote 890: - - Royal clemency in this respect could not be relied on by the - sub-tenants of _small_ escheated fiefs (not reckoned as honours or - baronies). This seems to be the opinion of Madox, _Baronia Anglica_, - 199: “If a fee holden of the Crown _in capite_ escheated to the king - and was not an Honour or Barony, then such fee did not (that is to - say, I think it did not) vest in the Crown in the same plight in which - it was vested in the said tenant _in capite_.” Cf. also _Ibid._, 203. - -Footnote 891: - - See Madox, _Baronia Anglica_, 169–171; also Pollock and Maitland, I. - 261, and authorities there cited. - -Footnote 892: - - See _Dialogus_, II. x. F, and _Ibid._, II. xxiv. The same rule applied - to sub-tenants of baronies in wardship (which was analogous to - temporary escheat). For example, when the see of Lincoln was vacant, - and therefore in ward to the Crown in 1168, the heirs of sub-tenants - paid to Henry only what they would have paid to the bishop; one giving - £30 for six fees, and another 30 marks for four. See _Pipe Roll_, 14 - Henry II., and cf. _supra_, c. 2. In the matter of scutage, also, a - distinction was recognized: while tenants _ut de corona_ might be - compelled to serve in person without an option, crown tenants _ut de - honore_ (and a _fortiore_ sub-tenants also) might claim exemption on - tendering scutage. See case of Thomas of Inglethorpe in 12 Edward II., - cited by Madox, _Baronia Anglica_, 169–171. - -Footnote 893: - - _Report on the Dignity of a Peer_, I. 60. - ------ - -John ignored this distinction, extending to tenants _ut de escaeta_ the -more stringent rules applicable to tenants _ut de corona_. Magna Carta -reaffirmed the distinction; and, not content with enunciating a general -principle, made two particular applications of it: neither reliefs nor -services of former tenants of baronies were to be augmented by reason of -the fact that such baronies had escheated to the Crown.[894] Henry -III.’s Charter of 1217 emphasized a third application of the general -rule, declaring that he would not, by reason of an escheated barony, -claim escheat or custody over the sub-tenants of that barony.[895] To -understand this concession, it must be remembered that under Henry III., -as under Henry II., sub-tenants of baronies were still liable to have -their titles reduced through the reduction by escheat of the title of -their lord; while sub-tenants of those who were themselves sub-tenants -were not exposed to a similar mischance by the escheat of their -immediate lord. Here also the position of Crown fiefs _ut de escaeta_ -was to be assimilated to that of fiefs of mesne lords, and -differentiated from that of Crown fiefs _ut de corona_. Sub-tenancies of -escheated baronies were not to be wiped out, but to subsist, and the -Crown (or its grantee) would take the escheat subject to all liabilities -to, and rights of, sub-tenants. - ------ - -Footnote 894: - - The need for this special reference to relief is not, at first sight, - obvious, since c. 2 of Magna Carta, by forbidding John to exact from - Crown tenants of either class the arbitrary sums taken by his father, - would seem to have already secured them from abuse. Probably, however, - c. 43 sought to prevent John from treating each of the former tenants - of the escheated barony as holder of a new barony of his own, and - therefore liable to a baron’s relief of £100 instead of the £25 he - ought to pay for his five fees, or £50 for his ten fees, or as the - case might be. The case of William Pantol (see _Pipe Roll_, 9 Henry - III., cited Madox, I. 318) seems to illustrate this. He was debited - with £100 of relief for his father’s land, but protested that he held - nothing of the Crown save five knights’ fees of the land which was of - Robert of Belesme. This plea was upheld, and £75 of the amount debited - was written off. - -Footnote 895: - - See c. 38 of 1217, and cf. the gloss given by Bracton (II. folio 87, - b.) which makes the meaning somewhat less obscure. The Charter of 1217 - contained a saving Clause: “unless the holder of the escheated barony - held directly of us elsewhere.” Bracton added a second proviso, - namely, unless the said sub-tenants (now Crown tenants _ut de - escaeta_) had been enfeoffed by the king himself. - ------ - -The Crown seems not to have strictly observed this rule in practice. -Article 12 of the Petition of the Barons in 1258[896] complained that -Henry had granted charters conferring rights which were not his to give -(_aliena jura_), but which he had claimed as escheats. An act of the -first year of Edward III. narrated how the Crown had confiscated from -purchasers tenements held of the Crown “as of honours,” thus treating -them “as though they had been holden in chief of the king, as of the -Crown.” Redress was promised by the statute:[897] but irregularities -continued throughout the earlier Tudor reigns; and the first Parliament -of Edward VI. passed an act to protect purchasers of lands appertaining -to honours escheated to the Crown.[898] - ------ - -Footnote 896: - - See _Sel. Charters_, 384. - -Footnote 897: - - See 1 Edward III., _stat._ 2, c. 13, _Statutes of Realm_, I. 256. - -Footnote 898: - - See 1 Edward VI. c. 4, _Statutes of Realm_, III. 9. - ------ - - - - - CHAPTER FORTY-FOUR. - -Homines qui manent extra forestam non veniant de cetero coram -justiciariis nostris de foresta per communes summoniciones, nisi sint in -placito, vel plegii alicujus vel aliquorum, qui attachiati sint pro -foresta. - - Men who dwell without the forest need not henceforth come before our - justiciars of the forest upon a general summons, except those who are - impleaded, or who have become sureties for any person or persons - attached for forest offences. - - -These provisions were intended to redress one of the many abuses -connected with the administration of the oppressive forest laws. - -I. _The Royal Forests._ For at least a century before John’s reign the -word “forest” had acquired an exact technical meaning, and was applied -to certain wide districts scattered irregularly throughout England, -reserved to the Crown for purposes of sport. Here the wild boar and deer -of various species found shelter, in which they were protected by the -severe regulations of the “Forest Law.” It was the prevalence of this -code which absolutely marked off the districts known as royal forests -from all that lay _extra forestam_; and this made an accurate definition -possible. A “forest” was a district where this oppressive law prevailed -to the absolute exclusion of the common law which ruled outside. The -forests with their inhabitants had been deliberately omitted from the -unifying process, by which the rest of England had been assimilated -under a uniform _lex terrae_. They remained in great measure at the -discretion of the Crown. This exclusion of the common law from the -confines of the forests was the root from which many evils grew. In no -other sphere was the prerogative so unfettered as within the charmed -circles which marked off these royal preserves from more fortunate parts -of the kingdom. - -From this definition of a forest as a _legal_, not a _physical_, entity, -it follows that the word is far from synonymous with terms such as -“wood” or “covert,” implying merely natural characteristics. A forest -was not necessarily covered with trees throughout the whole or even the -greater part of its extent. Miles of moorland and heath and undulating -downs might be included, and even fertile valleys, with ploughed fields -and villages nestling among them. The same forest, indeed, might contain -many woods, some of them on royal demesne and some the property of -private owners. In certain places the king’s proprietary rights might be -co-extensive with his forestal rights; but, more frequently, large -tracts of the _solum_ (whether wooded or bare) were owned by -freeholders, whose rights of property tended to become merely nominal, -when overridden by the king’s rights of the chase. Men might live, and -did live, within the boundaries, but they could enjoy no rights of -personal freedom or of property inconsistent with the rules laid down by -the Crown to protect its own interests. Within the imaginary line the -king’s power was supreme, and he used it frankly for the preservation of -beasts of the chase, not for the good government of the men who happened -to dwell there. These unhappy beings were absolutely subject to the -harsh forest code, a law, in the expressive words of Dr. Stubbs, “cruel -to man and beast.” If accused of forest offences, they had no protection -from the common law of England any more than from the law of a foreign -land. It was something, however, that even in these high places of royal -prerogative, customary rules grew up, obtained authoritative -recognition, and gradually hardened into laws which set some limits, -however inadequate, to royal caprice. Before John’s time the forest -code, as set forth in the Assize of Woodstock, and exemplified by the -practice of forest officials, had taken its place as a definite system -of law distinct from common law and canon law alike.[899] - ------ - -Footnote 899: - - A convenient short account of the forests, with their special laws, - special officials, and special courts, will be found in W. S. - Houldsworth’s _History of English Law_, pp. 340-352. For fuller - information see _Dialogus de Scaccario_, I. xii.; John Manwood, _Book - of the Forests_ (1598); Coke, _Fourth Institute_, 289–317; G. J. - Turner, Preface to _Select Pleas of the Forest_ (1901); and an article - in the _Edinburgh Review_ for April, 1902. - ------ - -II. _Origin of the Forests._ Before the Norman Conquest the kings of -England do not seem to have laid claim to any exclusive prerogative in -this respect. The only ordinance of Cnut on the subject admitted to be -authentic enacted merely that every man should have his own hunting, -while the king should have his.[900] The rights of the Crown, however, -were strengthened and consolidated by the events of 1066, and by the -hardening of feudal theory which followed. All unoccupied waste lands -became royal property; and these were the natural resorts of the larger -sorts of game. The king established a claim to a preferential, and, at -last, to an exclusive, right to hunt the more important species of -animals _ferae naturae_, known as "beasts of the forest"—embracing the -red deer (harts and hinds), the fallow deer (bucks and does), the roe -deer of both sexes, and the wild boar, with, exceptionally in one -forest, the ordinary hare.[901] The Conqueror and his sons set great -store on their hunting, and warned all intruders off the wide tracts of -land claimed as royal preserves. Henry I. formulated the doctrine of the -forest law, and it was probably due to him that “forest” acquired its -highly technical meaning. With the special meaning came the express -claim to a monopoly of hunting, together with supreme and exclusive -jurisdiction. The disorders of Stephen’s reign lowered the Crown’s -authority in this respect as in so much else, and Henry II. found the -forests much curtailed. He had no intention to acquiesce in this, but it -was not till 1184 that he attempted, by the Assize of Woodstock, to -formulate the rules of the forest law. In this sphere, as in so many -others, the process of organization was completed by Henry II. building -on the foundations laid by his grandfather; and the whole structure was -bequeathed in a state of high efficiency to his sons. John’s attitude to -the forest laws was not entirely consistent. The monk of Barnwall, whose -work is incorporated by Walter of Coventry in his own, relates to John’s -credit how, in the year 1212, he attempted, among other reforms meant to -propitiate the people, some relaxations in the severity of the forest -code.[902] Such clemency was exceptional. More characteristic of his -normal attitude was the order issued on 28th June, 1209, that hedges -should be burned and ditches levelled, so that while men starved, the -beasts might fatten upon the crops and fruits.[903] - ------ - -Footnote 900: - - _Select Charters_, 156. - -Footnote 901: - - _Select Pleas of the Forest_, xiii. - -Footnote 902: - - See W. Coventry, II. 207, and Stubbs’ Preface, lxxxvii. By a writ of - 18 May, 1204 (_New Rymer_, I. 89), he disafforested all Devonshire - except Dartmouth and Exmoor. - -Footnote 903: - - R. Wendover, III. 227. This, however, is clearly a biased account of - the king’s resumption of forest tracts illegally put under cultivation - by way of purpresture. - ------ - -III. _Forest Officials._ The local magistrates who administered the rest -of England were excluded from the confines of the forests by a separate -set of officials. At the head of this special organization was placed, -in early times, the Forest Justiciar (called the chief forester in -chapter 16 of the _Carta de Foresta_), whose duties were divided in the -year 1238, after which there were two provinces separated by the river -Trent.[904] His appointment was permanent, and his duties, which -continued between the eyres, were administrative rather than judicial. -He had discretionary authority to release trespassers imprisoned for -offences against the forest laws.[905] Under his general supervision -each forest, or group of forests, was governed by a separate _warden_, -aided by a number of petty officials known as _foresters_, whose duties -were analogous to those of a modern gamekeeper, but with magisterial -powers in addition. Wardens were of two classes—"the one appointed by -letters patent under the great seal, holding office during the king’s -pleasure; the other hereditary wardens."[906] For the king’s use there -was situated in or near each forest of any extent a royal residence -which, in the Middle Ages, naturally took the form of a stronghold. It -was convenient that the office of warden should be combined with that of -constable of this neighbouring castle.[907] “The wardens were the -executive officers of the king in his forests. Writs relating to the -administration of forest business, as well as to the delivery of -presents of venison and wood, were in general addressed to them.”[908] - ------ - -Footnote 904: - - See _Select Pleas of the Forest_, xiv. The permanent routine work - performed by this functionary must not be confused with the - intermittent duties of the Justices of Forest Eyres: although he was - almost invariably a member of the commission who went on circuit: - _e.g._ chapter 16 of the Forest Charter speaks of the Chief Forester - holding pleas of the forest. - -Footnote 905: - - _Select Pleas_, xv. - -Footnote 906: - - Mr. Turner, in _Select Pleas_, xvii. - -Footnote 907: - - Engelard de Cygony, for example, whose name appears in chapter 50, - occupied this double position. Chapter 16 of _Carta de Foresta_ - forbids _castellans_ to determine pleas of the forests, thus - strengthening the presumption that wardens were usually constables. - -Footnote 908: - - _Select Pleas_, xix. - ------ - -The office was one of authority and of profit, usually paid in kind -rather than by a salary. The warden often held a fief by a tenure -connected with the service, and enjoyed rights and perquisites always of -a valuable nature, though varying with each forest. These were -sufficient to provide him with an income adequate to his position, and -to allow him to find the wages of his under-keepers, who ought thus to -have been paid officials. Such was the theory; as matter of fact, the -foresters, instead of receiving wages, gladly paid large sums to the -warden, and recouped themselves, with an ample profit, by extortions -from the humble dwellers in their bailiwicks.[909] These unpaid -foresters were expressively said “to live upon the country.” They formed -a powerful official class, whose excessive numbers were a source of -constant complaint. They may be classified in various ways, as, into -riding and walking foresters (of whom there were one and four -respectively in the normal case), or into foresters nominated by the -wardens, and foresters in fee. These last had vested interests which the -Forest Charter was careful to respect; as, where chapter 14 reserved to -them the right to take “chiminage,” or way-leave, denied to other types -of foresters; they might still enjoy, but not abuse, the “vested rights” -reserved to them.[910] - ------ - -Footnote 909: - - _Ibid._, xxi. - -Footnote 910: - - The same chapter, however, fixed the rates of “chiminage.” - ------ - -With these professional gamekeepers there co-operated, in later times at -least, several groups of unpaid magistrates appointed from the knights -and freeholders of the district. Of these honorary officials, whose -original function was to supply supplementary machinery for protecting -the rights of the Crown, but whose position as county gentlemen with a -stake in the district led them also to act to some extent as arbitrators -between the king and outside parties, there were three recognized kinds. -(_a_) Towards the close of the twelfth century officers known as -_verderers_ (usually four for each forest) become prominent. They appear -in the _Carta de Foresta_ of 1217, but had not been mentioned in the -Assize of Woodstock of 1184. It is probable that the office was devised -in the interval as a check on the warden’s power, as the office of -coroner had been instituted in the reign of Richard I. as a drag on the -sheriff. In other important respects the duties of the verderers within -the forests resembled those of coroners within the rest of the county. -They were not royal employees, whose whole time was absorbed by the -duties of office and remunerated by fixed salaries or by perquisites, -but rather local landowners whose magisterial services were unpaid, and -were presumably required only on special occasions. They were -responsible directly to the king, and not to the warden; and were -appointed in the county court, their “election” taking place in -accordance with the terms of the writ “_de viredario eligendo_.” They -attended the forest courts and swanimotes, and it appears from chapter -16 of Henry’s forest charter that it was their duty to bring before the -Justices in Eyre lists of all offenders indicted in the lower courts. -These “rolls of attachment” were certified by their seals.[911] (_b_) -The _Regarders_ were twelve knights appointed in each forest county to -make tours of inspection every third year, finding answers to a series -of questions known as the “Chapters of the Regard.” In this way they -reviewed the Crown’s interests alike in “the venison and the vert” (the -technical names for game and growing timber respectively), and reported -upon all encroachments: upon hawks and falcons, bows and arrows, -greyhounds and mastiffs (with special reference to “expeditation” or -cutting of their claws),[912] and generally upon everything owned by -private individuals likely to harm the beasts of the forest.[913] (_c_) -The _Agistors_ are mentioned in the same clause of the Assize of -Woodstock which mentions the Regarders. Four knights were appointed, -apparently by the warden of each forest, whose duty it was to protect -the king’s interests in all matters connected with the pasturing of -swine or cattle within the royal woods. For thirty days at Michaelmas -pigs were turned loose with liberty to feed on the acorns and beech mast -on payment by their owners of a small fixed sum per head. The four -knights were required to take note of sums thus due, known as “pannage,” -and to collect them at Martinmas.[914] - ------ - -Footnote 911: - - For the earliest notice of verderers see _Select Pleas of the Forest_, - xix., n. Their appointment in the county court may indicate that they - acted in some measure as a check on the professional foresters in the - interests of the people generally, as well as a check on the warden in - the interests of the king. Within the forest the warden, with the - verderers and foresters, offered an exact parallel to the sheriff with - the coroners and bailiffs (or serjeants) in other parts of a county. - -Footnote 912: - - See _Carta de Foresta_, c. 6. - -Footnote 913: - - After 1217, if not before, it was one of their duties to fix the - number of foresters required, so that the inhabitants need not groan - under a heavier burden than necessary. - -Footnote 914: - - In one document they were styled _agistatores precii_ (_Select Pleas_, - p. 1.), which suggests that fixing the rate was their chief duty. - “Agist” was a general term; it was apparently correct to speak of - "agisting a wood”, of “agisting cattle,” and of “agisting the money - due.” - ------ - -Mention ought, perhaps, to be made of the private foresters also, whom -owners of woods within the forests were obliged to appoint. These “wood -wards,” as they were sometimes called, while paid for by the owner of -the wood, were expected to protect the king’s interests. In particular, -they must prevent trees under their care from being destroyed or wasted: -the king was an interested party in these, since they formed shelter for -his game. - -IV. _Forest Courts._ The judicial side of the forest system was -developed in a manner equally elaborate. Three sets of tribunals must be -distinguished: (1) _The Court of Attachments_ (or “view of attachments”) -was a petty tribunal, the chief duty of which was confined to taking -evidence to be laid in due course before a higher court. Exceptionally, -however, it had power to inflict fines for small trespasses against the -"vert"—namely, for acts of waste not exceeding the value of fourpence. -It met once in every forty days,[915] which seems in practice to have -been interpreted as once every six weeks, the meetings being always held -on the same day of the week.[916] (2) _Courts of Inquisitions._ When a -serious trespass against the forest laws was discovered, a special court -was, in early days, summoned immediately to make investigations. The -foresters and verderers conducted the inquiry, but it was their right -and their duty to assemble the men of the neighbouring townships to help -them. In strictness, apparently, all the inhabitants might be compelled -to attend. In practice, it was sufficient if four men and the reeve -represented each of the four adjoining villages. Whenever a “beast” was -found dead in the forest twenty men had thus to assemble, to the neglect -of their own affairs; and they would be made to suffer if they failed to -discover the culprit. In one district at least (Somerton) the definition -of beasts of the chase extended to the ordinary hare; and we read[917] -how four townships sat in solemn judgment, and found “that the said hare -died of murrain, and that they know of nothing else except -misadventure,” and how, this verdict not giving satisfaction, the -townships were fined on the pretext that they were not fully -represented. The real offence was their failure to disclose the culprit, -which was held to imply a desire to shield him. Some alleviation of the -burden of attendance was effected when, at some date posterior to 1215, -_special inquisitions_ were superseded by one _general inquisition_, -held at regular intervals (usually every six weeks), to cover all -trespasses committed during the interval. These courts of inquiry -(whether special or general) only “kept” pleas without “trying” -them—that is to say, they received and recorded accusations, while the -judgments were reserved for the justices. (3) _The courts of the forest -justices in eyre._ As the smaller courts, in the normal case, received -verdicts and reports, without punishing the offences reported, it is -evident that the whole system ultimately depended on the justices. Their -eyres, however, were held at wide intervals—apparently once every seven -years during the reign of Henry III. A very full attendance of forest -officials and of the public was summoned to meet them. The evidence -stored up as a result of the work of the smaller courts, supplemented by -the Rolls of the Regard, was laid before the justices, who summarily -judged “pleas of the vert,” inflicting small amercements, and “pleas of -the venison,” punishing by imprisonment those previously found guilty, -until they ransomed themselves by heavy fines. These eyres came to be -known as “Courts of Justice Seat,” but not until long after the reign of -John. No juries were present, nor were they required; the justices -punished offenders who had already been convicted by juries at a lower -court. - ------ - -Footnote 915: - - _Carta de Foresta_, c. 8. - -Footnote 916: - - _Select Pleas of the Forest_, xxx. - -Footnote 917: - - _Select Pleas of the Forest_, p. 42. - ------ - -These three classes of tribunals exercised functions analogous to those -of a modern court of law. In addition, there should be mentioned two -other kinds of assemblies which performed duties administrative rather -than judicial, as these terms are now understood. (4) The _regard_, held -once every three years—not by Crown officials, but by what was -practically a jury of local knights—has already been referred to. These -tours of inspection, sometime known as _visitationes nemorum_,[918] and -sometimes even as “views of expeditation,” were of great practical -importance. The resulting report was placed before the justices of eyre -as evidence of forest trespasses. (5) Three times every year, meetings, -known from an early date as “_Swanimotes_,” were held to regulate the -pasturing of swine and cattle within the royal woods. A fortnight before -Michaelmas the agistors met the foresters and verderers to provide for -the agisting of the king’s woods, a process which lasted for thirty -days—fifteen before and fifteen after Michaelmas. At Martinmas the -agistors collected the pannage in presence of the same officials. A -third meeting of officials was held in June to make arrangements for -excluding cattle of all kinds from the king’s woods during the period -when the deer were fawning, but at this the presence of the agistors was -not required.[919] - ------ - -Footnote 918: - - _Dialogus_, I. xi. E. - -Footnote 919: - - It is expressly stated in the _Carta de Foresta_ (1217) that only the - verderers and foresters need be present at the June moot, and the same - officers, with the agistors, at the two others. The public were - specially exempted. - ------ - -The _Carta de Foresta_ applies to these assemblies, and to none other, -the name "Swanimotes"—a word whose correct use has been the subject of -much discussion, and whose ambiguity was in later centuries the source -of many errors. Its authoritative appearance in 1217 affords strong -evidence of the original sense which it bore. In later days, however, it -was more loosely used, being applied to inquisitions, and also to courts -of attachment. This has led to much confusion, while its derivation has -also been the subject of discussion. Bishop Stubbs derived it from the -word “swain,” on the supposition that courts so-called were normally -resorted to by the general body of swains or country people. As matter -of fact (whatever doctrine may be correct philologically), these -assemblies were connected, not with “swains,” but with “swine.” The -peasantry were specially exempted; whereas all three meetings sought to -regulate the entry or exclusion of pigs from the woods. - -V. _Chases, Parks, and Warrens._ Forests were necessarily royal -monopolies, and must on this and other grounds be distinguished from -three things with which they are apt to be confused. (1) A “chase” was a -district which had once been a royal forest, but which had, without any -formal act of disafforestation, been granted by the king to a private -individual. The result was to transfer the monopoly of hunting therein -from the Crown to the grantee, while somewhat modifying the nature of -the rights transferred. The full force of the forest laws was abated, -although the extent and direction of this diminution was nowhere -strictly defined, varying from chase to chase. Such provisions of the -forest law as continued to be binding were no longer enforced by royal -officials and royal courts, but by those of the magnate, who thus -obtained a franchise over the chase and the royal beasts it -contained.[920] (2) A “park” was any piece of ground enclosed with a -paling, or hedge, whether with the object of protecting wild beasts or -otherwise, and the right to effect this was quite independent of royal -grant. If the owner of a manor in the near neighbourhood of a royal -forest wished to keep deer of his own, which he might kill at pleasure, -whether for sport or for food, without infringing the forest laws, he -had to stock an enclosure with beasts legally his own, and to keep them -under conditions which made confusion with the king’s deer -impossible.[921] In 1234 the barons asserted their right to keep private -gaols for poachers taken in their parks (_in parcis et vivariis suis_), -but the king refused to allow this.[922] (3) A “warren,” which might -belong either to the king or to any private owner, carried with it -exclusive rights of hunting within its bounds all wild animals, except -those technically defined as “beasts of the forest.”[923] In practice it -chiefly embraced hares and foxes.[924] Neither parks nor warrens were -protected by the forest law, but by that part of the common law which -related to theft and trespass. This was, however, vigorously -administered for the preservation of game, so as to bear with increasing -hardship on the common people, securing a monopoly of hunting to the -land-owning aristocracy, and passing gradually into the modern Game -Laws.[925] Dr. Stubbs held, apparently, too narrow a conception of -warren when he read it in its modern sense of “a rabbit warren.”[926] It -was a tract of land wherein exclusive rights of hunting lesser game -(together with rabbits and other vermin) were preserved to its owner. -The king might, and did, have his warrens and warreners, just as any -subject might; and these royal warreners, like all Crown officials, -great and small, might inflict cruel injustice on the common -people;[927] but their power of doing harm was less than that of -foresters, as they were dependent on the common law. The forest code did -not apply even to royal warrens.[928] - ------ - -Footnote 920: - - _Select Pleas of the Forest_, cix. _et seq._ - -Footnote 921: - - _Ibid._, cxvii. - -Footnote 922: - - Statute of Merton, c. 11. - -Footnote 923: - - _Select Pleas of the Forest_, cxxiii. - -Footnote 924: - - _Ibid._, cxxviii-cxxix. Wild cats should perhaps be added. - -Footnote 925: - - See W. S. Houldsworth, _History of English Law_, p. 346. - -Footnote 926: - - See _Select Charters_, 552. - -Footnote 927: - - Some of these Magna Carta sought to guard against. See c. 48. - -Footnote 928: - - Rights of hunting were sometimes conferred on subjects over territory - which was not their own. Richard I., by a charter, granted permission - to Alan Basset to hunt foxes, hares, and wild cats throughout the - realm. See Round, _Ancient Charters_, No. 18. - ------ - -VI. _Forest Rights and Forest Grievances._ It is not difficult to -understand the store which the kings of England set upon their forests. -They prized them not merely as a pleasure ground, but also as a source -of revenue. Fines and amercements, individually small, but amounting to -a large sum in the aggregate, flowed into the Exchequer. Great as were -the pleasure and the profit to the king, the burden and loss inflicted -upon the people, freeholders and peasantry alike, were greater out of -all proportion. Not only were the best interests of the forest-dwellers -deliberately sacrificed to the royal hunting, not only were the legal -fines swelling the exchequer rendered trebly burdensome by the galling -and wasteful manner of their collection; but the men who paid them were -the victims of illegal exactions in addition. These grievances may be -considered under seven heads:—(1) _The extent of the forests._ The Crown -constantly strove to extend the boundaries; the people to contract them. -The Conqueror and Rufus each “afforested” wide tracts of land, of which -the New Forest is only one example. In the charter of 1100, Henry -bluntly declared:—“I retain in my hand, by the common consent of my -barons, my forests as my father had them.” This consent of the magnates, -if more than a form and willingly given, would suggest that the barons -were allowed some share in these royal rights of hunting which led them -here to make common cause with the Crown. Henry, as a matter of fact, -retained not only the forests of his father but those of Rufus as well, -and created new ones of his own.[929] Stephen, while retaining the -forests of the two Williams, renounced those added by Henry I. Under -Henry II., afforestation began anew.[930] The words of the Great Charter -leave no room to doubt that Henry of Anjou had extended the boundaries -of Stephen’s forests; and that both Richard and John carried the process -further, bringing within the circle of the cruel law, not only waste and -moor, but also many “woods” belonging to private owners. These royal -encroachments were the more oppressive, occurring as they did in an age -when population was rapidly increasing and seeking an outlet in the -reclamation of waste places on the debateable land which surrounded the -forests. The vagueness of the frontier aggravated this grievance, as it -was often difficult for the honest reclaimer of barren land to know -whether he was committing a trespass for which he might be punished by a -crushing fine.[931] - ------ - -Footnote 929: - - This is implied in the terms of Stephen’s Oxford Charter. An example - of an act of afforestation by Henry is given in _Select Pleas_, 45, - which shows how “a district could be afforested in a moment by the - mere word of the monarch; it took centuries to free it from the royal - dominion.” See _Edinburgh Review_, vol. cxcv. (1902), p. 459. Even the - Forest Charter (cc. 1 and 3) admitted the Crown’s right to afforest - woods on its own demesne—reserving, indeed, common of pasture to those - with legal rights thereto. - -Footnote 930: - - The policy of Henry I., Stephen, and Henry II. respectively is well - illustrated by the case of Waltham forest in Essex. See Round, - _Geoffrey de Mandeville_, 377–8. - -Footnote 931: - - This group of grievances was partly remedied by chapters 47 and 53 of - Magna Carta. The former provided for the summary disafforestation of - all districts made forests by Richard and John, while the latter - showed a more judicial spirit in the undoing of the similar work - effected by their father. The _Carta de Foresta_ of 1217 contained - clauses which took the place of these somewhat crude provisions. - ------ - -(2) _The monopoly of hunting._ The Crown not only extended the bounds, -but also made the law more stringent. Such privileges of hunting as the -barons had were restricted as big game became scarce. The Crown’s -insistence on a strict monopoly of the more exciting forms of the chase -may not seem an important grievance, but it was one likely to exasperate -the sport-loving nobles. John, in 1207, admitted that his barons still -retained some vestiges of their right to share in the hunting of royal -beasts.[932] These rights were formally recognized and defined in 1217. -Chapter 11 of the _Carta de foresta_ allowed each magnate when passing -through a forest to take one or two beasts at sight of the foresters, -or, if these officials could not be found, then after blowing a horn to -show that nothing underhand was being done. - ------ - -Footnote 932: - - See _Rot. Claus._, I. 85 (dated 11 June, 1207). - ------ - -(3) _Interference with rights of property._ Freeholders whose lands lay -in districts which the king was successful in afforesting, retained -their freeholds, but their proprietary rights lost half their value. -They could not root out trees, to clear their own lands for cultivation; -for that was to commit an _assart_. They could not plough up waste land -or pasture (even outside the covert) and turn it into arable, nor build -a mill, nor take marl or lime from pits, nor make fishponds, nor enclose -any space with hedge or paling; for these acts of ownership were -_purprestures_. They could not destroy a tree or lop off branches -(except under stringent conditions), without being guilty of -_waste_.[933] They could not agist their woods until a fortnight after -Michaelmas, when the agisting of the king’s demesnes was over (thus -reserving for him the best market and “pannage dues”).[934] Heavy tolls -were, under the name of “chiminage,” taken from carts and sumpter-horses -passing through the woods. In all these and many other ways, rights of -private property in forests were so restricted as to become valueless. -The Great Charter endeavoured to strike at the abuse of these Crown -rights by providing machinery for the abolition of “evil customs.” The -_Carta de foresta_ entered more into detail. Not only were past -trespasses of all three kinds,—wastes, purprestures, and assarts to be -condoned, but the law was altered for the future. The long list of -purprestures was materially curtailed: it was made lawful for a man to -construct on his own freehold in the forest, mills, ponds, lime pits, -ditches, and arable lands, provided these were not placed within the -covert (that is in wooded places fit to shelter game) and did not -infringe on any neighbour’s rights.[935] They might also keep eyries for -breeding falcons and other birds of prey, and take honey found on their -own ground—rights previously denied to them.[936] - ------ - -Footnote 933: - - For detailed information as to wastes, purprestures, and assarts with - their ascending scale of penalties, see _Select Pleas_, lxxxii. - -Footnote 934: - - See Assize of Woodstock, article 7. - -Footnote 935: - - See _Carta de foresta_, c. 12. - -Footnote 936: - - _Ibid._, c. 13, another clause (c. 14) forbade ordinary foresters to - exact chiminage, and fixed the rates payable to those with vested - rights at two pennies for each cart per half-year, and one half-penny - for each sumpter horse. - ------ - -(4) _Interference with the pursuits of the poor._ If the rich suffered -injury in their property, the poor suffered in a more pungent way: stern -laws prevented them from supplying three of their primary needs, food, -firewood, and building materials. On no account could they kill deer; -while difficulties surrounded the taking of timber from the woods.[937] -It is true that even the Assize of Woodstock allowed them the privilege -of “estovers,” that is of cutting firewood, but only under stringent -rules. All waste was strictly prohibited; and “waste” was a wide word -covering, not merely wanton destruction, but all sales or gifts of logs; -while nothing could be taken except at sight of the forester, whose -consent would not be procured for nothing. This may be illustrated from -a period sixty years later than John’s reign: Hugh of Stratford, who -paid two and a half marks of yearly rent to the Warden for his post, -recouped himself by taking “from the township of Denshanger for every -virgate of land one quarter of wheat in return for their having paling -for their corn and for collecting dead wood for their fuel in the -demesne wood of the lord king; and from the same town he took from every -house a goose and a hen in every year.”[938] A small sum might be taken -for every load of sticks; the men of Somerset complained that “from the -poor they take, from every man who carries wood upon his back, -sixpence.”[939] Dwellers within or near the forests were also prohibited -from keeping dogs, unless their value for other pursuits, as well as for -hunting, was destroyed by the removal of three claws of the -forefoot.[940] Nor could they keep bows or arrows, so necessary for -their protection amid the dangers which beset the inhabitants of lonely -districts throughout the Middle Ages.[941] No tanner or bleacher of -hides could reside in the forest districts, unless within the walls of a -borough.[942] - ------ - -Footnote 937: - - See Assize of Woodstock, article 3. - -Footnote 938: - - See _Select Pleas_, 123 (6 Edward I.). - -Footnote 939: - - _Select Pleas_, 127 (1278-9). This was a heavy rate, the more - remarkable in face of the provisions against “chiminage” in _Carta de - foresta_, c. 14. - -Footnote 940: - - Assize of Woodstock, article 14. Cf. _Carta de foresta_, c. 6. - -Footnote 941: - - _Ibid._, article 2. - -Footnote 942: - - _Ibid._, article 15. - ------ - -(5) _Attendance at forest courts._ Unlike the grievances already -mentioned which pressed chiefly on those within the forests, the burden -of performing “suit” at the forest courts was specially resented by -those who lived without. At every inquisition representatives from -neighbouring townships must be present, while the entire population were -compelled to meet the justices on their forest eyres. Henry II., -whatever may have been the earlier practice, enforced this duty of -attendance upon those outside the boundaries as well as on those within. -The Assize of Woodstock admits no exemption for earl or baron, for -knight or freeholder, nor even (according to one version) for archbishop -or bishop. All and sundry must be present at the eyres. The double duty -of doing suit at county courts and at forest courts meant a double loss -of time, and double risk of amercement. This 11th Article of the Assize -was repealed by chapter 44 of Magna Carta, which restricted the -obligation to denizens of the forests, a concession confirmed in -1217.[943] - ------ - -Footnote 943: - - See _Carta de foresta_, c. 2. - ------ - -(6) _Fines and punishments._ Frequent exactions ground down the dwellers -in the royal forests to abject poverty. If they failed to attend one of -the numerous inquisitions, they paid a fine. If they failed to disclose -the guilty poacher, they paid a fine. If they gave false information, -they paid a fine. If they sold or gave away timber, they paid a fine. If -they kept grey hounds or mastiffs, which had not been “lawed,” that is -deprived of the requisite number of claws, they paid a fine.[944] If a -bow or arrow were found in their keeping, they paid a fine. If they -committed any one of the numerous forms of waste or trespass, they paid -a fine. Truly, the wretched peasant must walk warily if he would -preserve sufficient of his miserable pittance to keep himself, his wife -and children, in life and health. - ------ - -Footnote 944: - - At one time it had evidently been the practice to exact an ox in - reparation of such transgression, thus leaving the peasant without the - means of tilling his land. The Forest Charter (c. 6) limited the fine - to 3s. - ------ - -The Northamptonshire Eyre Roll of 1209 illustrates how a whole township -might suffer severely for no fault of their own. "The head of a hart -recently dead was found in the wood of Henry Dawney at Maidford by the -king’s foresters. And the forester of the aforesaid Henry is dead. And -because nothing can be ascertained of that hart, it is ordered that the -whole of the aforesaid town of Maidford be seized into the king’s hand, -on the ground that the said Henry can certify nothing of that -hart."[945] There was clearly a strong inducement, in such cases, to -find someone guilty. - ------ - -Footnote 945: - - See _Select Forest Pleas_, p. 4. - ------ - -In certain cases Henry II. would not accept a fine, but inflicted loss -of limbs upon violators of the king’s monopoly. It was often better to -kill a fellow-man than a boar or stag. Article 1 of the Assize of -Woodstock announced that the full rigour of the laws would be enforced, -as under Henry I., while article 12 laid down more definitely that -sureties would only be accepted for two offences. For the third offence -nothing would suffice save the body of the offender. John’s Magna Carta -made no specific regulation on this head, although the general provision -for abolishing “evil customs” afforded some relief. Chapter 10 of the -_Carta de foresta_ in 1217 conceded that no one should henceforth lose -life or limb for such offences. The culprit should lie in prison for -year and day, and thereafter find sureties for his future good -behaviour, or failing such sureties be banished from the realm. - -(7) _Arbitrary government and illegal exactions._ If the laws of Henry’s -code were stringent and the legal payments onerous, it was a worse evil -that the law, such as it was, could be safely defied by the Crown -officials, and that payments of a perfectly illegal nature might be -freely exacted. Within the forest bounds the peasantry lived in daily -fear of the discretionary authority of officials, whose most -unreasonable wishes they dared not oppose. Sometimes a local tyrant -established a veritable reign of terror. This happened in the forest of -Riddlington under Peter de Neville, as the records of the Rutland Eyre -held in 1269 disclose. One item, taken almost at random from the long -list of his evil deeds, will suffice: “The same Peter imprisoned Peter, -the son of Constantine of Liddington, for two days and two nights at -Allexton, and bound him with iron chains on suspicion of having taken a -certain rabbit in Eastwood; and the same Peter the son of Constantine, -gave two pence to the men of the aforesaid Peter of Neville, who had -charge of him, to permit him to sit upon a certain bench in the gaol of -the same Peter, which is full of water at the bottom.”[946] In this evil -pit, miscalled a gaol, men illegally arrested on mere suspicion were -allowed to rot or starve to death if they failed to pay heavy ransoms. -Other examples are only too abundant. In 1225 Norman Samson, a petty -official of the forest of Huntingdon, put men to the torture without -cause, and only released them from their torments in return for heavy -bribes. These petty despots were practically irresponsible, since the -eyres were held at wide intervals of seven years. Even then the -sufferers might hesitate to complain, fearing a worse fate when the -backs of the justices were turned. If such things could happen after the -grant of the charters of 1215 and 1217, it is not likely that the -foresters were more merciful before. John was always too indifferent or -too busy to redress such wrongs. The only guarantee against their -recurrence in the future was that honest officials should be selected. -Magna Carta sought to secure this by the provisions of chapter 45, which -(occurring amongst the forest clauses) directed that no justiciar, -sheriff, constable or bailiff should be appointed, except such as knew -the law of the land and meant to observe it. The word constable included -the wardens, while bailiff was wide enough to embrace the foresters. It -is doubtful whether this clause would have effected any improvement; it -was withdrawn in 1216. - ------ - -Footnote 946: - - _Select Pleas_, 50. - ------ - -Some good must have resulted from chapter 16 of the Forest Charter, -which forbade wardens to hold pleas of the forest, and reserved them for -the justices in eyre. This prevented wardens from being judges in their -own cause; but their arbitrary acts continued to be plentiful under -Henry III., as has been already shown. Blackmail, under thin disguises, -was levied upon all who would escape the unwelcome attentions of those -in power. Sixty years after Magna Carta the men of Somerset complained -that “foresters come with horses at harvest time and collect every kind -of corn in sheaves within the bounds of the forest and outside near the -forest, and then they make their ale from that collection, and those who -do not come there to drink and do not give money at their will are -sorely punished at their pleas for dead wood, although the king has no -demesne; nor does anyone dare to brew when the foresters brew, nor to -sell ale so long as the foresters have any kind of ale to sell; and this -every forester does year by year to the great grievance of the -country.”[947] - ------ - -Footnote 947: - - _Select Pleas_, 126. - ------ - -Each one of these abuses had been specifically forbidden by chapter 7 of -the _Carta de foresta_, which had prohibited the making of “scotale” and -the collection of corn, lambs, and pigs. Such rules were easier to -enunciate than to enforce. - -VII. _Later History of Forests and Forest Laws._ The Forest Charter -signally failed to secure a pure administration of the law; but two -processes were at work which tended to lighten the burdens inflicted. -The long struggle to define accurately the boundaries ended in the reign -of Edward II. in the defeat of the king, who consented to the frontier -being drawn to suit the barons.[948] Within these restricted limits, -time and the progress of civilization gradually softened the severity of -the forest code, many customs becoming obsolete.[949] Charles I. made an -ill-judged attempt to revive some of the Crown’s long-forgotten rights. -Justice-seats were held by the Earl of Holland, accompanied by -amercements and attempts to extend the forest bounds.[950] The result -was a drastic act of the Long Parliament limiting them to their old -extents.[951] This statute, however, abolished neither the forests, the -forest laws, nor the forest courts. After the Restoration a Justice-seat -actually took place _pro forma_ before the Earl of Oxford. Blackstone -declares this to be the last ever held,[952] although the offices of -justice and warden of the forests were not abolished till 1817.[953] The -forests, much curtailed in extent, are still the property of the Crown, -though now administered in the interests of the public by the -Commissioners of Woods and Forests.[954] The operation of the common law -is, of course, no longer excluded from their confines, the old -antithesis between the forest law and the law of England being now a -thing of the past.[955] - ------ - -Footnote 948: - - See _infra_, under c. 47. - -Footnote 949: - - The “_assisa et consuetudines forestae_,” issued by Edward I. in 1278, - although merely declaratory, may have done something towards - curtailing the limits of discretionary authority. See _Statutes of - Realm_, I. 243, and Bémont, _Chartes_, lxv. - -Footnote 950: - - See S. R. Gardiner, _Hist. Engl._, VII. 363, and VIII. 282. - -Footnote 951: - - 16 Charles I. c. 16. - -Footnote 952: - - _Commentaries_, III. 72. - -Footnote 953: - - By 57 George III. c. 61. - -Footnote 954: - - In virtue of a series of Acts of which 14-15 Victoria c. 42 is the - latest. - -Footnote 955: - - See Stephen, _Commentaries_, II. 465-6. - ------ - - - - - CHAPTER FORTY-FIVE. - -Nos non faciemus justiciarios, constabularios, vicecomites vel ballivos, -nisi de talibus qui sciant legem regni et eam bene velint observare. - - We will appoint as justices, constables, sheriffs, or bailiffs only - such as know the law of the realm and mean to observe it well. - - -The object of this plainly worded clause was to prevent the appointment -of unsuitable men to responsible offices under the Crown. The list of -officers given is a comprehensive one—justices, sheriffs, constables and -bailiffs—embracing all royal ministers and agents, both of the central -and of the local government, from the chief justiciar down to the -humblest serjeant.[956] The clause was directed in particular against -John’s foreign favourites such as the Poitevin Bishop of Winchester, -Peter des Roches,[957] who had wielded and abused the authority of chief -justiciar in 1214 when the king was abroad, or such as Engelard de -Cygony and the other tools of John’s extortions, stigmatized by name in -a later part of Magna Carta,[958] who had filled various posts as -sheriffs, wardens, and officials of the exchequer. Such men had no -interests at stake in England, and little love for its customs and free -traditions. In future John must choose a different type of servants, -avoiding all such unscrupulous men, whether Englishmen or foreigners, as -were ready to break the law in their master’s interests or their own. -There is thus no difficulty in understanding what class of men were here -excluded from office; but what class were to fill their places? Bishop -Stubbs, commenting on this passage, credits the draftsmen of the Charter -with an intention to secure the appointment of men well versed in legal -science: “on this principle the steward of a court-leet must be a -learned steward.”[959] The clause of Magna Carta, however, refers -exclusively to royal nominees, not to the officers appointed by mesne -lords to preside over their feudal courts. The barons appointed their -own stewards and bailiffs, and had no wish to hamper their own freedom -of choice; but only that of the king. Further, it was not great lawyers -whom the barons desired John to employ, but plain Englishmen with a -rough-and-ready knowledge of insular usage, who would avoid arbitrary -acts condemned by the law of the land. The barons at Runnymede in 1215 -desired exactly what the council of St. Albans had desired on 4th -August, 1213, when it issued formal writs commanding all sheriffs and -foresters to observe the laws of Henry I. and to abstain from unjust -exactions;[960] and it must be remembered that these laws of Henry were -but the older laws of Edward Confessor slightly amended. - ------ - -Footnote 956: - - Constable and bailiff are discussed _supra_, c. 24, and shown to - include forest magistrates, _supra_, c. 44. - -Footnote 957: - - See _supra_, 36–7, and cf. Blackstone, _Great Charter_, viii. - -Footnote 958: - - See c. 50. - -Footnote 959: - - _Const. Hist._, I. 578, n. - -Footnote 960: - - Cf. _supra_, p. 34. - ------ - -The attitude of John’s barons was the same as that of Henry’s barons, -when the latter declared in 1234 in such emphatic terms that they did -not wish the laws of England to be changed.[961] They were far from -desiring to be governed by ministers deeply versed in the science and -literature of jurisprudence, since these would necessarily have been -churchmen and civilians. The laws which the Crown’s officers must know -and observe were the old customary laws of England, as opposed alike to -the canon law and the civil law of Rome. Honest Englishmen were wanted, -with a reputation for straightforward dealing and in sympathy with -native prejudice. Crown ministers might do well enough without any -academic training in an age when only one short treatise on the law of -England had been written (that of Glanvill); while the stewards of court -leets, referred to by Bishop Stubbs, might even be ignorant of the -common law, provided they were versed in “the custom of the manor.” - ------ - -Footnote 961: - - “_Nolunt leges Anglie mutare que usitate sunt et approbate._” See - Statute of Merton, c. 9. - ------ - -This provision of Magna Carta, directed primarily against alien -sheriffs, castellans, and other ministers, disappeared in 1216 (without -any comment in the so-called “respiting clause”), along with several -provisions of a temporary nature, also directed against foreigners. Even -if this well-meaning chapter of John’s Great Charter had remained in -force, it would not have effected much, in the absence of adequate -machinery to ensure its enforcement. In promising the selection of such -ministers as knew the law and meant to keep it, John remained sole judge -of the men appointed and their intentions. The clause indicated no -standard of fitness to which appeal could be made, no neutral arbitrator -to decide between the fit and the unfit, and no sanction to enforce -compliance on an unwilling king. Half a century later, the Provisions of -Oxford gave proof of some advance in political theory. They contained an -expedient, crude enough it is true, for constraining royal officials to -keep the law. Forms of the oaths of office to be taken by castellans and -ministers of all grades were carefully provided.[962] Even this was only -a first step towards settling a problem which was not completely solved -until, after the struggles of many centuries, the modern doctrine of -ministerial responsibility was firmly established. - ------ - -Footnote 962: - - See _Select Charters_, 388–391, and Madox, II. 149, with authorities - there cited. - ------ - - - - - CHAPTER FORTY-SIX. - -Omnes barones qui fundaverunt abbatias, unde habent cartas regum Anglie, -vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut -habere debent. - - All barons who have founded abbeys, concerning which they hold - charters from the kings of England, or of which they have - long-continued possession, shall have the wardship of them, when - vacant, as they ought to have. - - -The religious houses of the various orders, (abbeys, priories, and -convents), which had increased so rapidly in number since the reign of -Henry I., fell naturally into two classes according as they had been -founded by the king or by private individuals. The king or the great -baron, in bestowing lands on a religious foundation, reserved, either -expressly or by implication, certain valuable rights of property, of -which the control over the election of the abbot or prior, together with -the wardship of the fief during vacancies, were the most important. King -John, while by his separate charter to the clergy he had renounced in -favour of all churches and monasteries, cathedral and conventual, all -control over election of prelates, had carefully reserved his rights of -wardship; and the barons insisted that the proprietary rights of mesne -lords who had founded religious houses, should also be respected. John -however, wherever he had any plausible pretext, usurped the wardship -over private foundations, in addition to his own. It would appear from -the terms of a later chapter,[963] that in 1215 the Crown actually held -in ward certain abbeys founded by mesne lords, for provision is there -made for their restoration. The present chapter looks to the future, -forbidding new usurpations of this nature. - -In the reissues of the Charter certain verbal changes occur, but it is -not clear that they imply any changes of substance. In 1216 the words -“and as it has been above declared” were added, implying that the rights -of mesne lords were to be restricted by the rules previously laid down -in chapter 5, as to wardship—rules especially applied to the lands of -bishoprics and religious houses in 1216 by a clause which had no -parallel in John’s charter.[964] In 1217 three other small changes tend -to widen the scope of the clause. The “barons who have founded abbeys” -of John’s grant become “the patrons of abbeys”; royal “charters” become -more explicitly “charters of advowson”; “ancient tenure” is expanded -into “ancient tenure or possession.”[965] - ------ - -Footnote 963: - - See _infra_, c. 53. - ------ - -Is it possible that the influence of the Church was powerful enough at -Runnymede to prohibit all mention of lay “patrons” and lay presentations -or “advowsons”; whereas it was powerless to prevent the barons pressing -their rights of patronage two years later? John’s promise of free -canonical election[966] had interfered with royal patronage, and Stephen -Langton would be unwilling to admit a subject’s claim to rights which he -had forced the Crown to renounce. The question of lay patronage, indeed, -was not directly raised in any version of Magna Carta; but prior to 1215 -John seems to have interfered between abbeys and their founders. On 16th -August, 1200 he granted to William Marshall, Earl of Pembroke, the -privilege of bestowing the pastoral staff of Nuthlegh Abbey, which lay -within that nobleman’s fief; this shows that John forbade appointments -without royal licence.[967] The present chapter of Magna Carta made -little difference in practice. Henry III. claimed wardship over abbeys -and priories formed by earls and barons on their own fiefs, and kept -them vacant, by preventing their patrons making appointments without his -licence.[968] - ------ - -Footnote 964: - - Compare _supra_, p. 250. - -Footnote 965: - - This chapter in its final form (1217 and 1225) runs thus: _Omnes - patroni abbatiarum qui habent cartas regum Anglie de advocatione vel - antiquam tenuram vel possessionem habeant earum custodiam cum - vacaverint, sicut habere debent et sicut supra declaratum est_. - -Footnote 966: - - Cf. _supra_, p. 39. - -Footnote 967: - - See _New Rymer_, I. 81. John had also interfered “in the time of the - interdict” with what Robert fitz Walter considered his rights of - patronage over Binham Priory (a cell of St. Alban’s). See J. H. Round, - _Eng. Hist. Rev._, XIX. 710-1. - -Footnote 968: - - See Petition of Barons (c. 11), _Sel. Charters_, 384. - ------ - - - - - CHAPTER FORTY-SEVEN. - -Omnes foreste que afforestate sunt tempore nostro, statim -deafforestentur; et ita fiat de ripariis que per nos tempore nostro -posite sunt in defenso. - - All forests that have been made such in our time shall forthwith be - disafforested; and a similar course shall be followed with regard to - river-banks that have been placed “in defence” by us in our time. - - -An analogy may be traced between the royal prerogatives of hunting and -of falconry here brought together. William the Conqueror claimed wide -and ill-defined rights to “afforest” whole districts at his discretion, -and in one well-known instance at least, the creation of the New Forest, -he made good his claim, at the cost of much suffering to his humbler -subjects. Large tracts of land were thus consecrated to the wild boar -and the stag. The king claimed somewhat similar powers for protecting -his preferential rights of fowling. If woods could be “afforested” for -hunting, rivers might be placed “in defence” for hawking. The parallel -must not be pushed too far. River-banks were preserved only for such -limited period as was covered by the king’s express command; and -although wardens were appointed to guard them,[969] the Crown never -established such absolute control over the banks of rivers as it did -within districts declared “afforested.” - ------ - -Footnote 969: - - Mention of these officers is made in c. 48. The phrase “in defence” is - explained _supra_, pp. 357-8. - ------ - -The provision of the present chapter, defining what river-banks might be -“defended,” disappeared, together with the relative clause of chapter 48 -(“_ripariis et earum custodibus_”), from the reissue of 1216; but, in -the respiting clause there was promised further deliberation, which -resulted in its replacement in chapter 20 of the final version of Magna -Carta.[970] - ------ - -Footnote 970: - - Cf. _supra_, p. 356. - ------ - -More attention is usually paid to the bearing of the present chapter -upon the limits of the forests. John, if he had created no new forests, -had at least extended the boundaries of the old ones. All such -encroachments are to be immediately given up. This summary redress, -which implies that John’s aggressions were so notorious as to admit of -no dispute, should be contrasted with the more judicial procedure -appointed by chapter 53 for determining encroachments made by Henry II. -and Richard I. A somewhat similar distinction is also to be found in the -corresponding provisions of the Forest Charter of 1217 (chapters 1 and -3); but the line is there differently drawn. Chapter 1 of the _Carta de -foresta_ extends the summary methods of redress to the disafforesting of -all forests created by Richard as well as those created by John. The -terms of the later document are also more detailed, making more explicit -the meaning of the earlier grant. Both seem to be directed against -encroachments on the rights of landowners, affording no protection to -the poor. While they deny the Crown’s right to afforest private woods -“to the damage of any one” (that is, of barons or freeholders owning -them), they admit the legality of past acts, whether of Henry, of -Richard, or of John, in afforesting Crown lands, subject always to a -saving clause in favour of freeholders in right of common of -pasturage.[971] - ------ - -Footnote 971: - - Mr. P. J. Turner, _Select Pleas of Forest_, xciii., points out that - although forests included open country as well as woods, yet _Carta de - foresta_ spoke only of “woods” in this connection. - ------ - -Even if Henry III. had cordially co-operated with his barons to -disafforest all tracts of ground afforested by Henry II. and his sons, -difficulties of definition would still have made the task tedious. As it -was, struggles to settle the boundaries embittered the relations between -Crown and Parliament, until the very close of Edward Plantagenet’s -reign. Only the leading steps in the slow process by which the -opposition triumphed need here be mentioned. - -After the issue of the _Carta de foresta_ on 6th November, 1217,[972] -machinery was set in motion, in obedience to its terms, to ascertain the -old boundaries and to disafforest all recent additions. The work of -redress continued for some years, suffering no interruption from the -issue of the new royal seal at Michaelmas, 1218.[973] In face of many -difficulties only slow progress was possible. More strenuous efforts -followed the reissue of the Charters on 11th February, 1225;[974] for, -five days later, justices were appointed to make new perambulations, -which resulted in the disafforestation of wide tracts. Henry considered -himself, and with some reason, as unjustly treated by these justices, or -by the local juries on whose verdicts they had relied. After he had -proclaimed himself of age in January, 1227, he challenged their -findings; and this has been misinterpreted as an attempt to annul the -Forest Charter.[975] - ------ - -Footnote 972: - - Cf. _supra_, p. 171. - -Footnote 973: - - Cf. _supra_, 180, and see _Select Pleas_, xcv. - -Footnote 974: - - Cf. _supra_, p. 181. - -Footnote 975: - - Cf. _Select Pleas_, xcix.; and see also _supra_, p. 184. - ------ - -Some of the knights who had perambulated the forests were persuaded or -coerced into acknowledging that they had made mistakes; and, after -further inquiry, Henry restored the wider bounds. His reactionary -measures went on for two years; but thereafter the frontiers were fixed, -in spite of many complaints, until strong pressure compelled Edward I., -towards the close of his reign, to reopen the whole question. -Perambulations in 1277 and 1279 produced apparently no results. Renewed -complaints were followed by new perambulations in 1299-1300, the reports -of which were laid before a Parliament which met at Lincoln on 25th -January, 1301. The king, as the result of hostile forces converging from -several sides, had to surrender; and on 14th February he confirmed the -Forest Charter, and formally agreed to the reduced boundaries as defined -by the most recent inquests. Edward had acted under constraint: on this -plea he subsequently obtained from Pope Clement V. a bull, dated 29th -December, 1305, revoking all the concessions made at Lincoln.[976] The -Crown seemed thus to triumph once more; but the barons refused to accept -defeat, forcing upon Edward II. the acceptance of the narrower bounds as -they had been defined at his father’s Parliament in 1301. This -settlement was confirmed by statute in the first year of the reign of -Edward III.,[977] and that king failed in all attempts to escape from -its provisions. Thus the authoritative pronouncement made in 1301 by the -Parliament of Lincoln furnished the basis on which the protracted -controversy was finally determined.[978] - -Footnote 976: - - See _Select Pleas_, cv. Mr. Turner’s account of Edward’s conduct may - be compared with the estimate of M. Bémont, _Chartes_, xlviii. - -Footnote 977: - - 1 Edward III., stat. 2, c. 1. - -Footnote 978: - - See _Select Pleas_, cvi. There was one exception. On 26th December, - 1327, Edward III. had to submit to further disafforestations in - Surrey. - ------ - -The further history of the forest boundaries may be told in a few -sentences. No changes were made until the sixteenth century. When Henry -VIII. afforested the districts surrounding Hampton Court in 1540, he did -so by consent of Parliament, and on condition of compensating all those -who suffered damage. The same course was followed by Charles I. in -creating the Forest of Richmond in 1634. Finally, as a result of the -attempts of the Stewarts to revive obsolete forest rights, a statute of -the Long Parliament, reciting the Act of 1327, “ordained that the old -perambulation of the forest in the time of King Edward the First should -be thenceforth holden in like form as it was then ridden and -bounded.”[979] - ------ - -Footnote 979: - - 16 Charles I. c. 16. - ------ - - - - - CHAPTER FORTY-EIGHT. - -Omnes male consuetudines de forestis et warennis, et de forestariis et -warennariis, vicecomitibus et eorum ministris, ripariis et earum -custodibus, statim inquirantur in quolibet comitatu per duodecim milites -juratos de eodem comitatu, qui debent eligi per probos homines ejusdem -comitatus, et infra quadraginta dies post inquisicionem factam, penitus, -ita quod numquam revocentur, deleantur per eosdem, ita quod nos hoc -sciamus prius, vel justiciarius noster, si in Anglia non fuerimus.[980] - - All evil customs connected with forests and warrens, foresters and - warreners, sheriffs and their officers, river-banks and their wardens, - shall immediately be inquired into in each county by twelve sworn - knights of the same county chosen by the honest men of the same - county, and shall, within forty days of the said inquest, be utterly - abolished, so as never to be restored, provided always that we - previously have intimation thereof, or our justiciar, if we should not - be in England. - - ------ - -Footnote 980: - - The last sixteen words, inclusive of “_per eosdem_,” appear at the - foot of both of the Cottonian versions of Magna Carta. Cf. _supra_, - 194–7. - ------ - -This chapter is mainly, though not exclusively, a forest one. It -provides in a sweeping and drastic manner for the abolition of “evil -customs,” three groups of which are specially emphasized: (_a_) those -connected with forests and warrens (presumably royal warrens only), with -their officials; (_b_) those connected with sheriffs and their -subordinates; and (_c_) those connected with river-banks and their -guardians. The word “customs” is obviously here used in its wider sense, -embracing all usages and procedure, whether specially connected with -pecuniary exactions or not.[981] The word “evil” is not defined, but -here (in favourable contrast to elsewhere) machinery is provided for -arriving at a definition. This takes the form of a new application of -the useful _inquisitio_. In each county a local jury of twelve knights -was to be immediately chosen by “the good people” of that county, and -these twelve received a mandate to hold a comprehensive inquest into -“evil customs” generally. All practices condemned by them (after hearing -on oath smaller local juries, doubtless) were to be abolished within -forty days of the inquiry, “so that they shall never be restored.” - ------ - -Footnote 981: - - Contrast the more restricted meaning of the same word in c. 41. - ------ - -At the end of the chapter appears a proviso that, before actual -abolition, notice must be sent to the king, or, in his absence, to his -justiciar. Although such intimation was absolutely necessary, both on -grounds of policy and of ordinary courtesy, it would appear that this -clause was inserted only at the instance of the king’s friends; at -least, it is written (as an afterthought) at the foot of two of the -copies of the Great Charter. - -Whether acting under pressure or from grounds of policy, John lost no -time in instituting the machinery necessary for effecting this part of -the reforms. On the very day on which the terms of peace were finally -concluded between king and barons at Runnymede, namely, on 19th June, -1215, he began the issue of writs to sheriffs, warreners, and river -bailiffs. Within a few days every one of these had been certified of the -settlement arrived at, and had received commands to have twelve knights -chosen by the county in the first county court, who should make sworn -inquest into evil customs.[982] - ------ - -Footnote 982: - - See _Rot. Pat._, I. 180, cited also _Select Charters_, 306–7. Cf. - _supra_, p. 47. - ------ - -These orders were obeyed: knights were appointed in the various -counties, who seem to have taken a liberal view of their own functions. -Far from confining themselves to declaring customs to be evil, or even -to seeing them abolished, they claimed to share with the sheriffs the -exercise of the entire executive authority of the county. Some warrant -for these pretensions may be found in the terms of a second series of -writs issued in the king’s name on 27th June and following days. These -were addressed to the sheriff and the twelve knights jointly, commanding -them to make instant seizure of all who refused to take, as required in -the previous writs, the oath of obedience to the twenty-five executors -of the Charter.[983] The revolutionary committee of the central -government had thus in each county local agents in the twelve knights -whose original duties had been to see evil customs abolished. - ------ - -Footnote 983: - - Cf. _infra_, c. 61. - ------ - -The hatred which all classes bore to the forest laws is well illustrated -by the iconoclastic spirit in which these knights concurred with the -jurors of each small district, and with all others concerned, for the -drastic treatment of abuses. Moderate-minded men began to fear that -these sweeping changes would virtually abolish the royal forests -altogether (in their technical legal sense). Accordingly, the leading -prelates, who were in large measure responsible for inducing the king to -make truce at Runnymede, and were thus under a moral obligation to do -what they could to prevent the barons breaking faith, issued a written -protest. They declared that the chapter in question must be understood -by both parties “as limited,” and “that all those customs shall remain, -without which the forests cannot be preserved.”[984] Clearly, the whole -code of the forest laws was in danger of being swept out of existence, -as forming one huge “evil custom.” What effect, if any, this protest -had, is not known. The country was soon plunged in civil war, during the -continuance of which neither side had leisure for the reform of abuses, -however urgently required. In 1216 the subject was one of those -“respited” for future consideration, and in 1217 an attempt was made to -specify in detail those evil customs which were to be abolished. The -dangerous experiment of leaving such definition to local juries in each -district was not repeated. - ------ - -Footnote 984: - - Cf. _supra_, p. 52. The text is given _Rot. Claus._, 17 John, m. 27, - d. and _New Rymer_, I. 134. It runs in name of the archbishops of - Canterbury and Dublin, and of the bishops of London, Winchester, Bath, - Lincoln, Worcester, and Coventry, forming (with one exception, the - bishop of Rochester) precisely those mentioned in the preamble to - Magna Carta. - ------ - - - - - CHAPTER FORTY-NINE. - -Omnes obsides et cartas statim reddemus que liberate fuerunt nobis ab -Anglicis in securitatem pacis vel fidelis servicii. - - We will immediately restore all hostages and charters delivered to us - by Englishmen, as sureties of the peace or of faithful service. - - -A feature of John’s system of government was the constant demand for -hostages as guarantees of his subjects’ loyalty. Such an expedient was, -indeed, naturally resorted to in the Middle Ages upon special occasions, -as, for example, to secure the observance of a recent treaty, or where -the leaders of a rebellion, newly suppressed, had been spared on -condition of future good behaviour. Thus the Conqueror, in 1067, during -a forced absence from England immediately after its acquisition, took -with him Edgar Atheling and the Earls Morkere and Eadwin; and many other -instances readily occur. Such cases were, however, exceptional, until -John established an unfortunate claim to distinction as the only king of -England who ever resorted to such a policy, not merely in face of -danger, but as a constant and normal practice in times of peace. It may -be that his continual suspicions were well grounded; but this scarcely -excuses them, since it was his own bad government which goaded his -subjects into a condition of perpetual unrest. - -John lived in his native England like a foreign conqueror in the midst -of a hostile race, keeping sons and daughters in his clutches to answer -for their parents’ attempts at revolt. This ingenious but unfair -practice accords well with what we know of John’s character and general -policy. It was a measure of almost devilish cunning for obtaining his -immediate aim, but likely to recoil on himself whenever a critical state -of his fortunes arrived. Its efficacy lay in this, that it forced the -hand of discontented magnates, compelling them to decide upon the -instant between the desperate expedient of open rebellion and the -delivery of their children to an unscrupulous enemy, thus renouncing, -perhaps for ever, the possibility of resistance or revenge, thereafter -to be purchased at too dear a price—the life of the hostage. By thus -paralyzing his enemies one by one, John hoped to render disaffection -innocuous. Those nobles whom the tyrant did not thus control through -their tenderest affections were too few for effective resistance. At the -slightest show of temper, they, too, were suddenly pounced upon for -hostages, thus joining the ranks of those who dared not rebel.[985] - ------ - -Footnote 985: - - The only magnates not exposed to this dilemma were the prelates, whose - celibacy cut them adrift from family ties. They had no hostages to - give, and were, further, in the normal case, exempt from fear of - personal violence. - ------ - -The entire history of the reign shows of what excessive practical -importance this question of hostages had become. It abounds with -examples of the varied pretexts upon which John demanded them, and of -his drastic methods of visiting upon their heads the sins of those who -had pledged them. Thus, in 1201, John seized the castles of certain of -his barons; and one of them, William of Albini, only saved his -stronghold of Belvoir by handing over his son as a hostage.[986] In the -same year, the men of York offended the king by omitting to meet him in -procession when he visited their city, and by their failure to provide -quarters for the billeting of his archers. The king, as usual, demanded -hostages, but ultimately allowed the citizens to escape on payment of -£100 to buy back the king’s goodwill.[987] - ------ - -Footnote 986: - - See R. Hoveden, IV. 161. - -Footnote 987: - - See _Rotuli de Finibus_, p. 119. - ------ - -Hardly a year passed without similar instances; but, apparently, it was -not until 1208 that the practice was enforced wholesale. In that year -the king’s abject fear of the effects of the Pope’s absolution of his -barons from their allegiance led to his demand that every leading man in -England should hand over his sons, nephews, or other blood relations to -the king’s messengers.[988] - ------ - -Footnote 988: - - See R. Wendover, III. 224-5, and M. Paris, II. 523. - ------ - -The danger of failure to comply with such demands is illustrated by the -fate of Maud of Saint-Valery, wife of William de Braose, who refused -point-blank to hand over her grandchildren to a king who, she was unwise -enough to say, “had murdered his captive nephew.”[989] Two years later -John, after failing to extort enormous sums in name of fines, caused -her, with her eldest son, to be starved to death, a fate to which her -own imprudence had doubtless contributed.[990] John’s drastic methods of -treating his hostages may also be illustrated from the chronicles of his -reign, for example, from the fate of the youths he brought from Wales in -June, 1211. When he heard of the Welsh rebellion of the following year, -he ordered his levies to meet him at Nottingham. On his arrival, at the -muster, early in September, John found awaiting him a great concourse, -who were treated to an object lesson which long might haunt their -dreams. His passion at white heat, John incontinently hanged -eight-and-twenty defenceless boys of the noblest blood of Wales.[991] -This ghastly spectacle could not have been forgotten by any one then -present, when later in the same month the king, in the throes of sudden -panic, fled to London; and, secure in the fastnesses of the tower, -demanded hostages wholesale from all the nobles whose fidelity he -doubted. The inveterate Eustace de Vesci and Robert fitz Walter -preferred to seek safety in flight, the only alternative open to -them.[992] The others, with the Nottingham horror fresh in their -memories, were constrained to hand over, with feelings that may be -conceived, their sons and daughters to the tender mercies of John, -cunning and cruel by nature, and rendered doubly treacherous by -suspicion intensified by fear. - ------ - -Footnote 989: - - R. Wendover and Matthew Paris, _Ibid._ - -Footnote 990: - - See authorities cited by Miss Norgate, _John Lackland_, p. 288. - -Footnote 991: - - Cf. _supra_, p. 30. - -Footnote 992: - - Cf. _supra_, p. 30. - ------ - -The defects of this policy, in the long run, may be read in the events -which preceded Magna Carta. When John’s hold on the hostages was -relaxed, because of his preparations for the campaign of 1214, ending as -it did in utter discomfiture, the disaffected were afforded their -long-desired opportunity, and were stimulated to rapid action by the -thought that such a chance might never occur again. John, on his return, -held comparatively few hostages, and the northern barons saw that they -must act, if at all, before their children were once more in the -tyrant’s clutches. - -Even in June, 1215, John had control over a few hostages, and the -chapter now under discussion demands the immediate restoration of those -of English birth (the Welsh receiving separate treatment) together with -the charters which John held as additional security, very much as a -creditor might hold the titles of a mortgaged property. This provision -of Magna Carta was immediately carried out. Letters were dispatched to -the custodians of royal hostages, ordering an immediate release.[993] -The practice of taking hostages, however, by no means ended with the -granting of the Great Charter. Before a year had run, some of the -insurgent nobles, repenting of their boldness, succeeded in making terms -with John by the payment of large sums of money and the delivery of -their sons and daughters in security for their future loyalty. Simon -fitz Walter, for example, thus gave up his daughter Matilda.[994] - ------ - -Footnote 993: - - See for example a letter of 23rd June to Stephen Harengod, referred to - _supra_, p. 49. - -Footnote 994: - - See _Rotuli de Finibus_, 571. The custody of hostages might, - apparently, be a desirable office, since in 1199, Alan, the earl’s - son, offered three greyhounds for the custody of a certain hostage of - Brittany; so it appears from _Rotuli de Finibus_, p. 29. - ------ - - - - - CHAPTER FIFTY. - -Nos amovebimus penitus de balliis parentes Gerardi de Athyes, quod de -cetero nullam habeant balliam in Anglia; Engelardum de Cygony, Petrum et -Gionem et Andream, de Cancellis, Gionem de Cygony, Galfridum de Martinny -et fratres ejus, Philippum Marci et fratres ejus, et Galfridum nepotem -ejus, et totam sequelam eorundem. - - We will entirely remove from their bailiwicks, the relations of Gerard - de Athyes (so that in future they shall have no bailiwick in England), - namely Engelard de Cygony, Peter, Gyon, and Andrew of the Chancery, - Gyon de Cygony, Geoffrey de Martyn with his brothers, Philip Mark with - his brothers and his nephew Geoffrey, and the whole brood of the same. - - -Chapter 45 sought to secure the appointment of suitable men to posts of -trust under the Crown; the present chapter definitely excludes from -bailiwicks (a comprehensive term embracing all grades of local -magistracies) one particular group of royal favourites. Their names -prove them of foreign extraction. They had come from Brabant, Flanders, -and Poitou,[995] and several of them stayed on in England and held -lucrative posts under Henry III. in spite of the ban here laid upon -them. The clause of John’s Charter which excluded them from office was -indeed omitted from future reissues, along with chapter 45. - ------ - -Footnote 995: - - Cf. Bémont, _Chartes_, 22, n, and 116. - ------ - -The reasons which had rendered them obnoxious to the barons are not -explained, but may be readily imagined. They had filled the unpopular -posts of collectors of customs, wardens of forests, and commanders of -royal garrisons, and had distinguished themselves by their unscrupulous -zeal in pushing the king’s prerogatives connected with trade, castles, -forests, and purveyance. - -The career of Engelard de Cygony may be taken as typical of the rest. He -was a nephew of Gerard de Athyes,[996] and was deep in the confidence of -his master, as is proved by the number of responsible offices with which -he was entrusted. We know that in 1211 he acted as Sheriff of -Gloucester, since he accounted to the Exchequer for the _firma -comitatus_. He further accounted for the _firma burgi_ of Bristol,[997] -which seems to imply interference with the chartered liberties of that -city. It was probably because John required his services elsewhere, that -some of his sheriff’s duties were performed by deputy, a burgess named -Richard rendering accounts on his behalf. Engelard also held pleas of -the Crown for Gloucestershire, in violation alike of the ordinance of -1194 forbidding any sheriff to act as justiciar in his own county, and -of the customary rule (confirmed only, not originated, by chapter 24 of -Magna Carta) which prevented sheriffs from holding pleas of the -Crown.[998] Several entries tell of barrels of wine which he took as -“prise” from ships entering the port of Bristol. For example, the -exchequer officials allowed him to deduct from the amount which he owed -as _firma_, the sum of 60s., in respect of four tuns of red wine, as -certified by the king’s writ,[999] an entry which suggests that he had -purchased from the Crown the profits yielded by the prerogative of -taking prise; and had then resold to the king the hogsheads actually -required for the royal use at 15s. each. Engelard also guarded a rich -treasure for the king at Bristol, probably as constable of the castle -there, sums being paid to him _ad ponendum in thesauro regis_.[1000] On -one occasion he was entrusted with the custody of more than 10,000 marks -of the king’s money.[1001] Hostages, as well as bullion, were placed -under his care; a writ dated 18th December, 1214, directed him to -liberate three noble Welshmen whom it mentioned by name.[1002] - ------ - -Footnote 996: - - See R. Wendover, III. 238. - -Footnote 997: - - _Pipe Roll_, 12 John, cited Madox, I. 333. - -Footnote 998: - - _Ibid._, II. 146. - -Footnote 999: - - _Pipe Roll_, 12 John, cited Madox, I. 766. - -Footnote 1000: - - _Ibid._, I. 606. - -Footnote 1001: - - _Ibid._, I. 384. - -Footnote 1002: - - _Rot. Pat._, 16 John, m. 9 (I. 125), and _New Rymer_, I. 126. - ------ - -In the civil war to which the treaty of peace sealed at Runnymede was a -prelude, Engelard, then constable of Windsor Castle and warden of the -adjacent forest of Odiham, proved active in John’s service. He -successfully defended Windsor from the French faction, making vigorous -sorties until relieved by the king.[1003] He requisitioned supplies to -meet the royal needs; and a plea was brought against him so long -afterwards as 1232, in connection with twelve hogsheads of wine thus -taken.[1004] He acted as sheriff of Surrey under William Marshal, the -Regent, but was suspended from this office in 1218 in consequence of a -dispute with Earl Warenne.[1005] He remained warden of the castle and -forests for twenty years after the accession of Henry III.,[1006] and -his long services were rewarded with grants of land: in the county of -Oxford he held the manor of Benzinton, with four hundreds and a half, -during the king’s good pleasure;[1007] while his son Oliver received the -lucrative post of guardian over the lands and heirs of Henry de -Berkley.[1008] - ------ - -Footnote 1003: - - See M. Paris, II. 665, who calls him “_Ingelardus de Athie_” and - describes him as _vir in opere martis probatissimus_. Cf. _Rot. Pat._, - 9 Henry III. m. 9. - -Footnote 1004: - - See Bracton’s _Note Book_, No. 684. - -Footnote 1005: - - See _Rot. Pat._, 2 Henry III. m. 7. - -Footnote 1006: - - _Ibid._, 19 Henry III. - -Footnote 1007: - - See _Testa de Neville_, p. 18, and _Ibid._, p. 120. - -Footnote 1008: - - _Rot. Pat._, 9 Henry III. m. 6. - ------ - -In 1221, however, acting in consort with Falkes de Bréauté, Philip Mark, -and other castellans, Engelard supported earl William of Aumâle in his -resistance to the demands of Henry’s ministers, that all royal castles -should be restored to the king. Notwithstanding the secrecy with which -he sent men to the earl at Biham castle,[1009] he fell under suspicion -of treason, and escaped imprisonment only on finding hostages that he -would hold the castle of Windsor for the king, and surrender it at his -will.[1010] In 1236, he was relieved of some of his offices, but not of -all, for in 1254 he was two years in arrears with the _firma_ of the -manor of Odiham.[1011] In that year, apparently, he died; for the patent -roll contains a writ granting him permission to make his will, and an -entry in 1255 relates how “for good service done to the king by Engelard -de Cygony in his lifetime, the king granted to his executors that they -should be quit of all accounts to be rendered by them at the exchequer, -and of all averages of accounts, and of all debts and imposts.”[1012] -Engelard thus died, as he had lived, the trusted servant and favourite -of kings. His career illustrates how the very same men who had incurred -odium as the partizans of John became, when the civil war was over, the -instruments of his son’s misgovernment.[1013] - ------ - -Footnote 1009: - - R. Wendover, IV. 66. - -Footnote 1010: - - _Annals of Dunstable_, III. 68. - -Footnote 1011: - - _Mem. Roll_, 28 Henry III., cited Madox, II. 201. - -Footnote 1012: - - _Mich. Communia_, 29 Henry III., cited Madox, II. 229. - -Footnote 1013: - - Some particulars respecting the other individuals named will be found - in Thomson, _Magna Charta_, 244–5. Philip Mark was Constable of - Nottingham under John (R. Wendover, III. 237), and Sheriff of - Nottingham both before and after 1215 (see _e.g._ _Rot. Claus._, I. - 412), while Guy de Chancel in 1214 accounted for the scutage of the - honour of Gloucester (Madox, I. 639), and for the rent of the barony - of William of Beauchamp (_Ibid._, I. 717). - ------ - - - - - CHAPTER FIFTY-ONE. - -Et statim post pacis reformacionem amovebimus de regno omnes alienigenas -milites, balistarios, servientes, stipendiarios, qui venerint cum equis -et armis ad nocumentum regni. - - As soon as peace is restored, we will banish from the kingdom all - foreign-born knights, cross-bowmen, serjeants, and mercenary soldiers, - who have come with horses and arms to the kingdom’s hurt. - - -John here binds himself to disband his foreign troops, who had acted as -the agents of his tyrannies, keeping the native English in subjection, -and ever ready to take the field in the event of rebellion. These men, -who had garrisoned the royal castles which formed such formidable -engines of oppression in the Middle Ages, are now to be banished “as -soon as peace is restored,” an indication that, even at the date of -Magna Carta, a state of virtual war was recognized. This promise was -partially fulfilled. On 23rd June writs were issued for the disbandment -of the mercenaries.[1014] The renewal of the civil war, however, was -followed by the enrolment of new bands of foreigners on both sides, and -these men long continued to exercise an evil influence in England. Their -presence was one of the main causes of the rebellion of 1224, after the -suppression of which most of them were again banished with their -ring-leader, Falkes de Bréauté, at their head. - ------ - -Footnote 1014: - - See _Rot. Pat._, 17 John, m. 23 (_New Rymer_, I. 134). - ------ - -The words used to describe these soldiers are comprehensive. -_Stipendiarii_ embraced mercenaries of every kind: _balistarii_ were -cross-bowmen. This weapon, imported into England as a result of the -crusades, quickly superseded the earlier short bow, but had, in turn, to -succumb to the long bow, which was apparently derived from Wales, and -was developed as the regular weapon of one branch of the English army by -Edward I., who gained by means of it many battles against the Scotch and -Welsh, and made possible the later triumphs of the Black Prince and of -Henry V. - - - - - CHAPTER FIFTY-TWO. - -Si quis fuerit disseisitus vel elongatus per nos sine legali judicio -parium suorum, de terris, castellis, libertatibus, vel jure suo, statim -ea ei restituemus; et si contencio super hoc orta fuerit, tunc inde fiat -per judicium viginti quinque baronum, de quibus fit mencio inferius in -securitate pacis: de omnibus autem illis de quibus aliquis disseisitus -fuerit vel elongatus sine legali judicio parium suorum, per Henricum -regem patrem nostrum vel per Ricardum regem fratrem nostrum, que in manu -nostra habemus, vel que alii tenent que nos oporteat warantizare, -respectum habebimus usque ad communem terminum crucesignatorum; exceptis -illis de quibus placitum motum fuit vel inquisicio facta per preceptum -nostrum, ante suscepcionem crucis nostre: cum autem redierimus de -peregrinacione nostra, vel si forte remanserimus a peregrinacione -nostra, statim inde plenam justiciam exhibebimus. - - If any one has been dispossessed or removed[1015] by us, without the - legal judgment of his peers, from his lands, castles, franchises, or - from his right, we will immediately restore them to him; and if a - dispute arise over this, then let it be decided by the five-and-twenty - barons of whom mention is made below in the clause for securing the - peace.[1016] Moreover, for all those possessions, from which any one - has, without the lawful judgment of his peers, been disseised or - removed, by our father, King Henry, or by our brother, King Richard, - and which we retain in our hand (or which are possessed by others, to - whom we are bound to warrant them) we shall have respite until the - usual term of crusaders; excepting those things about which a plea has - been raised, or an inquest made by our order, before our taking of the - cross; but as soon as we return from our expedition (or if perchance - we desist from the expedition) we will immediately grant full justice - therein. - - ------ - -Footnote 1015: - - The _elongatus_ of the Charter replaces the _prolongatus_ of the - Articles of the Barons. - -Footnote 1016: - - That is, in the so-called “executive clause” the “_forma securitatis - ad observandum pacem_” of the Articles, which became chapter 61 of the - Charter (_q.v._). - ------ - -The Charter here reverts to a topic of vital interest to the barons, the -subject of illegal disseisins already raised in chapter 39, which is -here supplemented. Legal remedy is provided for everyone dispossessed by -the Crown “_sine legali judicio parium suorum_.” A distinction is drawn, -however, between two classes of wrongs, according as they have been -inflicted by John himself, where summary methods are to rule, or by his -predecessors, where less precipitate procedure must take its course. - -The Articles of the Barons had recognized the same distinction, while -providing somewhat different treatment. Those disseised by Henry or -Richard were to get redress "according to the judgment of their peers in -the king’s court"; those disseised by John, “according to the judgment -of the twenty-five barons,” that is, of the executors, to be afterwards -more fully discussed. Both cases, however, were in the Articles -qualified by a stipulation which calls for comment. John had taken the -crusader’s vow a few months previous, and now claimed the usual three -years’ “respite” allowed to those preparing for the holy war, from all -legal proceedings against them. The barons, viewing John’s vow as a -deliberate and notorious perjury, rejected his claim. The point was -referred by the Articles of the Barons to arbitration. The prelates, -whose _judicium_ on this point was declared to be final (“_appellatione -remota_”), and who were bound to give an early decision (“_ad certum -diem_”), might not unreasonably have been suspected of partiality, since -“taking the cross” was not a step to be belittled by churchmen. Yet they -seem to have acted in a spirit of not unfair compromise, if the clause -as it finally appeared in John’s Magna Carta may be taken as giving the -substance of their award. - -The crusader’s privilege was not allowed by Langton and his -fellow-arbitrators in cases where John himself had been the disseisor; -the twenty-five executors might there decide forthwith. Respite was -allowed, however, in respect of the disseisins of Henry and of Richard -(except where legal proceedings were already pending).[1017] The Charter -says nothing of the procedure to be adopted at the close of the three -years; but there was probably no intention to depart from the terms of -the Articles in this respect, namely, "judgment of peers in the king’s -court." - ------ - -Footnote 1017: - - This “benefit of a crusader” was extended to John in three other sets - of complaints, specified in c. 53 (_q.v._). - ------ - -John had good reason to consider as unfair the mode here appointed for -deciding disputes as to disseisins effected by him. Many delicate points -would thus be referred to the summary decision of a baronial committee, -sure to be composed of his most bitter enemies—the very men, perhaps, -whom he had dispossessed. If the “judgment of the twenty-five” meant for -the barons “the judgment of peers,” it meant for the king the judgment -of inferiors and enemies.[1018] - ------ - -Footnote 1018: - - This chapter embraced not merely estates still retained in John’s - possession, but also those granted out anew, the titles of which had - been guaranteed by the Crown. If the former owner recovered these, the - Crown was legally bound by feudal law to make good the loss inflicted - on the present holder by his eviction. The case of Welshmen is - specially treated in c. 56 (_q.v._). - ------ - - - - - CHAPTER FIFTY-THREE. - -Eundem autem respectum habebimus, et eodem modo, de justicia exhibenda -de forestis deafforestandis vel remansuris forestis, quas Henricus pater -noster vel Ricardus frater noster afforestaverunt, et de custodiis -terrarum que sunt de alieno feodo, cujusmodi custodias hucusque habuimus -occasione feodi quod aliquis de nobis tenuit per servicium militare, et -de abbaciis que fundate fuerint in feodo alterius quam nostro, in quibus -dominus feodi dixerit se jus habere; et cum redierimus, vel si -remanserimus a peregrinacione nostra, super hiis conquerentibus plenam -justiciam statim exhibebimus.[1019] - - We shall have, moreover, the same respite and in the same manner in - rendering justice concerning the disafforestation or retention of - those forests which Henry our father and Richard our brother - afforested, and concerning the wardship of lands which are of the fief - of another (namely, such wardships as we have hitherto had by reason - of a fief which anyone held of us by knight’s service), and concerning - abbeys founded on other fiefs than our own, in which the lord of the - fee claims to have right; and when we have returned, or if we desist - from our expedition, we will immediately grant full justice to all who - complain of such things. - - ------ - -Footnote 1019: - - The words, “_et eodem modo, de justicia exhibenda_,” and “_vel - remansuris forestis_” are written at the foot of both the Cottonian - versions. Cf. _supra_, 195, n. They make clear, rather than add to, - the meaning of the rest. - ------ - -This chapter makes an advance upon the Articles of the Barons, extending -to three kinds of abuses, not specially mentioned there, the respite -provided in chapter 52 for redressing acts of illegal disseisin. The -“close time” secured to John in virtue of his crusader’s vow is to cover -(_a_) inquiries into the proper boundaries of forests said to have been -extended by his father or by his brother; (_b_) wardships over the lands -of under-tenants usurped by him by reason of his illegal extension of -prerogative wardship, and (_c_) abbeys founded by mesne lords and seized -by John during vacancies in violation of the rights of wardship of such -founders.[1020] - ------ - -Footnote 1020: - - It thus supplements three previous chapters (_a_) c. 47; (_b_) c. 37; - and (_c_) c. 46 respectively. - ------ - - - - - CHAPTER FIFTY-FOUR. - -Nullus capiatur nec imprisonetur propter appellum femine de morte -alterius quam viri sui. - - No one shall be arrested or imprisoned upon the appeal of a woman, for - the death of any other than her husband. - - -The object of this chapter was to find a remedy for what the barons -evidently considered an unfair advantage enjoyed by women appellants, -who were allowed to appoint some champion to act for them in the -_duellum_, while the accused man had to fight for himself. The -connection between appeal and battle, and the distinction between battle -following on appeal and battle on a writ of right, have already been -explained.[1021] In civil pleas wherein combat was legally competent, -neither party could fight in person: champions were insisted on, -although _hired_ champions were condemned. In theory, these men were -witnesses, each swearing that he had actually seen the seisin—that is, -had been present at the infeftment of the claimant whose title he -supported, or at that of his ancestor from whom he inherited the -land.[1022] In criminal pleas, on the other hand, the parties must fight -in their own persons. This distinction is not so illogical as it seems -at first sight, for the appellant was supposed to be an eye-witness of -the crime[1023]; and the apparent anomaly disappears when both rules of -procedure are treated as deductions from the principle that the -combatants in all cases were witnesses whose conflicting testimonies -must be weighed in the balance of battle, with an overruling Providence -holding the scales. - ------ - -Footnote 1021: - - Cf. _supra_, c. 36. - -Footnote 1022: - - Bracton, _folio_ 151 _b._, cites the case of a champion sentenced to - mutilation of a foot because he confessed that he was paid to appear, - and was not really a witness. The Statute of Westminster, I. (3 Edward - I. c. 41), enacted that champions need not swear to the personal - knowledge of what they maintained. See also Neilson, _Trial by - Combat_, 48–51. - ------ - -Footnote 1023: - - The appellant “in all cases except murder, that is, secret homicide, - made oath as a witness that he had seen and heard the deed.” Neilson, - _Trial by Combat_, 48. - ------ - ------ - -In a case of murder, no private accuser would be heard unless he alleged -that he had seen the accused actually do the deed. The stringency of -this rule was, however, modified by legal fictions. The near relation, -or the feudal lord, of the slain man was treated as constructively -present at his slaying, because of the closeness of the bond of blood or -of homage between the two. This, at least, is the most plausible -interpretation of Glanvill’s words: “No one is admissible to prove the -accusation unless he be allied in blood to the deceased or be connected -with him by the tie of homage or lordship, _so that_ he can speak of the -death upon testimony of his own sight.”[1024] - ------ - -Footnote 1024: - - Glanvill, XIV. c. 3. - ------ - -The rule also which required an appellant to offer proof by his own body -was relaxed in certain cases; women, men over sixty years of age, and -those with broken bones or who had lost a limb, an ear, a nose, or an -eye, were unable to fight effectively, and might therefore appear by -proxy.[1025] The privilege thus accorded to women was looked on with -much disfavour as conferring an unfair advantage as against appellees -who were not allowed to produce a substitute. Accordingly an option was -given the man accused by a woman; he might, in Glanvill’s words, elect -either "to abide by the woman’s proof or to purge himself by the -ordeal."[1026] This option was freely used; an appellee in 1201 was -allowed to go to the ordeal of water,[1027] while two years later when -the widow of a murdered man offered to prove her accusation “as the -court shall consider,” the accused was allowed to go to the ordeal, “for -he has elected to bear the iron.”[1028] After the virtual abolition of -ordeal in 1215, appeals by women were usually determined _per patriam_ -(that is by the sworn verdict of a jury of neighbours). Such is the -doctrine of Bracton,[1029] whose authority is amply borne out by -recorded cases. Thus in 1221, a man accused by a woman of her husband’s -murder offered fifteen marks for a verdict of the jurors.[1030] - ------ - -Footnote 1025: - - See Bracton, II. ff. 142 _b_, 145 _b_; also Neilson, _Trial by Combat_ - 47, and authorities there cited. - -Footnote 1026: - - Glanvill, XIV. c. 3. - -Footnote 1027: - - _Sel. Pleas of the Crown_, No. 1. - -Footnote 1028: - - _Ibid._, No. 68. Cf. No. 119. - -Footnote 1029: - - Bracton, _folio_ 142 _b_. - -Footnote 1030: - - _Select Pleas of the Crown_, No. 130. - ------ - -A woman’s right of accusation (even when thus safeguarded from abuse) -was restricted to two occasions, the murder of her husband and the rape -of her own person. Magna Carta mentions only one of these two grounds of -appeal; but silence on the subject of assault need not be interpreted as -indicating any intention to deprive women of their rights in such -cases.[1031] - ------ - -Footnote 1031: - - The Act 6 Richard II. c. 6, to prevent the wife’s connivance, extended - the right of appeal in such cases to a woman’s husband, father, or - other near relative; but denied the appellee’s right to the option of - defending himself by battle—thus proving no exception to the policy of - discouraging the _duellum_ wherever possible. - ------ - -The present chapter of the Great Charter confines itself to appeals of -murder, declaring that no woman has the right to institute proceedings -in this way for the death of father, son, or friend, but only for that -of her husband. Hard as this rule may seem, the barons here made no -change on existing law. Glanvill does not seem to recognize the -possibility of a woman’s appeal of homicide save for the death of her -husband.[1032] He seems to deduce the reason for allowing it in that -case from the principle already explained: "A woman is heard in this -suit accusing anyone of her husband’s death, if she speak as being an -eye-witness to the fact, because husband and wife are one flesh"—another -example of constructive presence.[1033] - ------ - -Footnote 1032: - - Glanvill, XIV. c. 3. - -Footnote 1033: - - Glanvill, XIV. c. 33, Fleta I. c. 3, seems by different words to - indicate only the same doctrine of constructive presence, when he - speaks in this connection “_de morte viri sui inter brachia sua - interfecti_,” although laboured explanations of this passage are - sometimes attempted, _e.g._ Coke, _Second Institute_, 93. Pollock and - Maitland (I. 468, n.) dismiss the phrase _inter brachia sua_ as "only - a picturesque ‘common form.’" - ------ - -There seems to be no authority whatever for Coke’s hasty inference from -the provisions of this chapter, that previous to 1215 a woman had an -appeal for the death of any one of her “ancestors.”[1034] The chapter, -in spite of its declaratory nature, seems an ungallant one, indicating -that the barons were more careful to guard themselves against -unnecessary risk than to champion the cause of defenceless women.[1035] - ------ - -Footnote 1034: - - See Coke, _Second Institute_, p. 68, and contrast Pollock and - Maitland, I. 468. John’s justices rejected in 1202 a woman’s claim to - appeal for her father’s death, and some ten years later two other - claims for the death of sons. See _Select Pleas of the Crown_, Nos. - 32, 117, and 118. - -Footnote 1035: - - A peculiarity in the wording of this clause should, perhaps, be - noticed. It restricts explicitly not appeals by women, but merely - “arrest and imprisonment” following on such. - ------ - - - - - CHAPTER FIFTY-FIVE. - -Omnes fines qui injuste et contra legem terre facti sunt nobiscum, et -omnia amerciamenta facta injuste et contra legem terre, omnino -condonentur, vel fiat inde per judicium viginti quinque baronum de -quibus fit mencio inferius in securitate pacis, vel per judicium majoris -partis eorundem, una cum predicto Stephano Cantuariensi archiepiscopo, -si interesse poterit, et aliis quos secum ad hoc vocare voluerit: et si -interesse non poterit, nichilominus procedat negocium sine eo, ita quod, -si aliquis vel aliqui de predictis viginti quinque baronibus fuerint in -simili querela, amoveantur quantum ad hoc judicium, et alii loco eorum -per residuos de eisdem viginti quinque, tantum ad hoc faciendum electi -et jurati substituantur. - - All fines made with us unjustly and against the law of the land, and - all amercements imposed unjustly and against the law of the land, - shall be entirely remitted, or else it shall be done concerning them - according to the decision of the five-and-twenty barons of whom - mention is made below in the clause for securing the peace, or - according to the judgment of the majority of the same, along with the - aforesaid Stephen, archbishop of Canterbury, if he can be present, and - such others as he may wish to bring with him for this purpose, and if - he cannot be present the business shall nevertheless proceed without - him, provided always that if any one or more of the aforesaid - five-and-twenty barons are in a similar suit, they shall be removed as - far as concerns this particular judgment, others being substituted in - their places after having been selected by the rest of the same - five-and-twenty for this purpose only, and after having been sworn. - - -The thirty-seventh of the Articles of the Barons, forming the draft of -this chapter, refers specially to one particular class of illegal fines, -namely those exacted by John from defenceless widows in return for being -allowed the peaceful enjoyment of their legal rights of property in -their own and their husband’s estates (“_pro dotibus, maritagiis, et -hereditatibus_”). It forms thus a natural supplement to chapter 7. The -earlier chapter had confirmed widows in their rights for the future; -this one remits fines unjustly taken in the past. It is probable that -even the clause of the Articles of the Barons did not intend to limit -its own operation to this one group of unjust fines; and it mentions -amercements, without any qualification. In any view, the terms of Magna -Carta were broadened out to embrace illegal fines and amercements of -every sort.[1036] - ------ - -Footnote 1036: - - In its expanded form the clause becomes a supplement, not merely to c. - 7, but also to cc. 20, 21 and 22 (which defined procedure at - amercements), and to cc. 36 and 40 (which condemned John’s practice of - refusing writs and justice until heavy fines were offered for them). - ------ - -The distinction between fines and amercements, absolute in theory but -tending to become obliterated in practice, has been explained in a -former chapter.[1037] The system of arbitrary fines, always so galling a -feature in the Crown’s policy throughout the Middle Ages, culminated in -the reign of John, whose talents were well suited to the development of -its ingenious and mean details. Dr. Stubbs describes the product of his -labours as “the system of fines which was elaborated into that minute -and grotesque instrument of torture which all the historians of the -reign have dwelt on in great detail.”[1038] Hallam commented on this in -a passage which has become classical. "The bishop of Winchester paid a -ton of good wine for not reminding the king (John) to give a girdle to -the countess of Albemarle; and Robert de Vaux five best palfreys, that -the same king might hold his peace about Henry Pinel’s wife. Another -paid four marks for leave to eat (_pro licentia comedendi_)."[1039] - ------ - -Footnote 1037: - - See _supra_, c. 20. - -Footnote 1038: - - See _Preface_ to W. Coventry, II. lxix. - -Footnote 1039: - - _Middle Ages_, II. 438. Hallam’s examples are all drawn from Madox, I. - 507-9. Other illustrations of fines and amercements may be found under - several of the foregoing chapters. Every man who began a plea and lost - it, or abandoned it, was amerced. - ------ - -Unique procedure was provided by the present chapter for deciding -disputes as to the legality of fines and amercements. Authority to -decide was vested in a board of arbitrators to consist of thirteen or -more of the twenty-five executors, together with Stephen Langton and -such others as he chose to summon. No mention is made of the maximum -number whom the primate might thus nominate, and there is no attempt to -define their powers relative to those of the other members of the board, -a somewhat unbusinesslike omission, but one which testifies to the great -confidence placed in Langton by those who approved its terms. Care is -taken to prevent such members of the twenty-five as were likely to be -biased from sitting in judgments on suits like their own—a stipulation -which might with advantage have been extended to several other chapters. - -This chapter, like others addressed to the special circumstances of -John’s reign, found no echo in future charters. - - - - - CHAPTER FIFTY-SIX. - -Si nos disseisivimus vel elongavimus Walenses de terris vel libertatibus -vel rebus aliis, sine legali judicio parium suorum, in Anglia vel in -Wallia,[1040] eis statim reddantur; et si contencio super hoc orta -fuerit, tunc inde fiat in marchia per judicium parium suorum, de -tenementis Anglie secundum legem Anglie, de tenementis Wallie secundum -legem Wallie, de tenementis marchie secundum legem marchie. Idem facient -Walenses nobis et nostris. - ------ - -Footnote 1040: - - The words “_in Anglia vel in Wallia_” are written at the foot of one - of the Cottonian versions, (cf. _supra_, 195, n.); but their omission - from their proper place is clearly a clerical error, since they appear - _in situ_ in the Articles of the Barons. - ------ - - If we have disseised or removed Welshmen from lands or liberties, or - other things, without the legal judgment of their peers in England or - in Wales, they shall be immediately restored to them; and if a dispute - arise over this, then let it be decided in the marches by the judgment - of their peers; for tenements in England according to the law of - England, for tenements in Wales according to the law of Wales, and for - tenements in the marches according to the law of the marches. Welshmen - shall do the same to us and ours. - - -This is the first of three chapters directed towards redressing wrongs -suffered by Welshmen: and the three taken together testify to the -importance attached by the barons to the value of the Welsh alliance. -Restoration is to be made (_a_) of illegal disseisins effected by John -(chapter 56); (_b_) of those effected by Henry II. and Richard I. -(chapter 57); and (_c_) of hostages and charters delivered to John as -pledges of peace (chapter 58). - -The present chapter does for Welshmen what the first part of chapter 52 -had already done for Englishmen. The reasons for treating Welshmen -separately were probably twofold, partly for the sake of emphasis, and -partly because some slight differences of detail were required. -“Judgment of peers,” indeed, was applied to both cases, but for the -dispossessed Welshmen, “_in marchia per judicium parium suorum_” takes -the place of the “_per judicium viginti quinque baronum_” provided for -Englishmen in like case. The “venue” was thus apparently fixed in the -marchland for all Welshmen’s cases, although three different kinds of -law were to be applied according to the situation of the property in -dispute. This clear indication of the existence of three distinct bodies -of law, one for England, another for Wales, and a third for the marches, -shows that the unifying task of the common law had not yet been -completed. Interesting questions of a nature analogous to those treated -by the branch of modern jurisprudence known as International Private Law -must constantly have arisen. The “peers” of a Welshman were not defined; -but a court composed of Welsh barons or freeholders was probably meant. - -The final words of the chapter, declaring that Welshmen were to afford -reciprocal redress to John and his subjects, are interesting, since they -imply that Welshmen had, in some cases, successfully seized lands -claimed by Englishmen. Here, as usual, the barons were mainly interested -in securing their own rights. - - - - - CHAPTER FIFTY-SEVEN. - -De omnibus autem illis de quibus aliquis Walensium disseisitus fuerit -vel elongatus sine legali judicio parium suorum per Henricum regem -patrem nostrum vel Ricardum regem fratrem nostrum, que nos in manu -nostra habemus, vel que alii tenent que nos oporteat warantizare, -respectum habebimus usque ad communem terminum crucesignatorum, illis -exceptis de quibus placitum motum fuit vel inquisicio facta per -preceptum nostrum ante suscepcionem crucis nostre: cum autem redierimus, -vel si forte remanserimus a peregrinacione nostra, statim eis inde -plenam justiciam exhibebimus, secundum leges Walensium et partes -predictas. - - Further, for all those possessions from which any Welshman has, - without the lawful judgment of his peers, been disseised or removed by - King Henry our father, or King Richard our brother, and which we - retain in our hand (or which are possessed by others, to whom we are - bound to warrant them) we shall have respite until the usual term of - crusaders; excepting those things about which a plea has been raised - or an inquest made by our order before we took the cross; but as soon - as we return, (or if perchance we desist from our expedition), we will - immediately grant full justice in accordance with the laws of the - Welsh and in relation to the foresaid regions. - - -The provisions here made for restoring to Welshmen estates of which they -had been unjustly dispossessed by Henry or Richard are expressed in -terms identical with the similar provisions made in the latter part of -chapter 52 for Englishmen in like case, except for the last words, “in -accordance with the laws of the Welsh in relation to the aforesaid -districts,” indicating the three systems of law referred to in the -previous chapter. No machinery is here specified for declaring or -applying that law; the need for this indeed had been rendered remote by -John’s success before the arbitrators who determined that a crusader’s -privilege should be accorded him.[1041] - ------ - -Footnote 1041: - - See _supra_, c. 52. - ------ - -The Articles of the Barons had, however, mentioned the procedure to be -adopted; and a comparison of the terms of articles 25 and 44 with those -of chapter 57 of the Charter suggests the antithesis between “_per -judicium parium suorum in curia regis_” for Englishmen in such cases, -and “_in marchia per judicium parium suorum_” for Welshmen. - - - - - CHAPTER FIFTY-EIGHT. - -Nos reddemus filium Lewelini statim, et omnes obsides de Wallia, et -cartas que nobis liberate fuerunt in securitatem pacis. - - We will immediately give up the son of Llywelyn and all the hostages - of Wales, and the charters delivered to us as security for the peace. - - -The treatment of hostages in general and Welsh hostages in particular -has already been fully illustrated.[1042] The patent and close rolls of -the reign show a constant coming and going of these living pledges of -the peace. A writ of 18th December, 1214, for example, bade Engelard de -Cygony restore three Welsh nobles to Llywelyn.[1043] Since then, new -hostages, including Llywelyn’s own son, had been handed over; and -charters also had apparently been pledged. John now promised -unconditionally to restore all of these; and the Welsh Prince must have -breathed more freely when this was fulfilled, allowing him, his son by -his side, with a light heart to prepare for the hostilities against the -English Crown, long seen to be inevitable and now to be resumed in -alliance with the disaffected English barons. - ------ - -Footnote 1042: - - See _supra_, p. 517. - -Footnote 1043: - - See _supra_, p. 520. - ------ - -The Articles of the Barons had to some extent treated this question of -the Welsh hostages and charters as an open one, referring its final -determination to the arbitration of Stephen Langton and such others as -he might nominate to act with him. The point had apparently been decided -in favour of the Welsh before the Charter was engrossed in its final -form.[1044] - ------ - -Footnote 1044: - - No. 45 of the Articles of the Barons is connected by a rude bracket - with No. 46 (relating to the king of Scotland); and a saving clause, - thus made applicable to both, is added with some appearance of haste: - “_nisi aliter esse debeat per cartas quas rex habet, per judicium - archiepiscopi et aliorum quos secum vocare voluerit_.” Cf. _supra_, - 202. So far as related to Scotch affairs, the king’s _caveat_ found - its way, although in an altered form, into Magna Carta. See c.59. - ------ - - - - - CHAPTER FIFTY-NINE. - -Nos faciemus Alexandro regi Scottorum de sororibus suis, et obsidibus -reddendis, et libertatibus suis, et jure suo, secundum formam in qua -faciemus aliis baronibus nostris Anglie, nisi aliter esse debeat per -cartas quas habemus de Willelmo patre ipsius, quondam rege Scottorum; et -hoc erit per judicium parium suorum in curia nostra. - - We will do toward Alexander, King of Scots, concerning the return of - his sisters and his hostages, and concerning his franchises, and his - right, in the same manner as we shall do towards our other barons of - England, unless it ought to be otherwise according to the charters - which we hold from William his father, formerly King of Scots; and - this shall be according to the judgment of his peers in our court. - - -A heterogeneous body of forces was drawn into temporary union by common -hatred of John. The barons welcomed allies whether from Wales or from -Scotland; if the three preceding chapters were a bid for Llywelyn’s -support, this one was dictated by a desire to conciliate Alexander. John -was forced to promise to restore to the king of Scots his sisters and -other hostages, together with his franchises and his “right.” This last -word covered Alexander’s claim to independence and also whatever title -he might prove good to various English fiefs which he claimed to hold -under the English Crown. - -Opinions have been, and still are, sharply divided as to whether, or in -what degree, Scotland was subject to feudal overlordship. Of one fact -there can be no doubt; David I. and his successors, kings of Scotland, -had been wont to do fealty and homage to the kings of England; but this -fact has received widely different interpretations. Such homage, it is -argued, was performed in respect of certain English baronies which -happened to belong by hereditary right to the kings of Scotland, namely, -the earldom of Huntingdon, the isolated position of which enabled the -English Crown without danger to admit the claim, and the counties of -Northumberland, Cumberland, and Westmoreland, the proximity of which to -the border rendered their possession by a Scottish prince a source of -weakness to England.[1045] The terms in which the oath of homage was -taken did not indicate for what fiefs it was sworn—whether for the -English earldoms alone, or for the whole country north of Tweed as well. - ------ - -Footnote 1045: - - See Stubbs, _Const. Hist._, I. 596. - ------ - -The position of the kings of Scots remained ambiguous in this respect, -until William the Lion was placed at a terrible disadvantage by his -capture at Alnwick in 1174, after supporting the rebellion against Henry -II. To gain his release he ratified the Treaty of Falaise on 8th -December, of that year, by which he agreed in future to hold all his -territories as fiefs of the English Crown. All his tenants in Scotland -were to take a direct oath to Henry; while hostages were surrendered -along with the castles of Berwick, Roxburgh, Jedburgh, Edinburgh, and -Stirling.[1046] - ------ - -Footnote 1046: - - See Ramsay, _Angevin Empire_, 183–4. In the spring of 1185, Henry - confirmed William’s claim to the Earldom of Huntingdon, and the Scots - king, prior to Christmas, 1186, transferred it to his brother David. - _Ibid._, 226, n. - ------ - -This notable achievement of Henry’s diplomacy was, like other portions -of his life’s work, undone by his successor. Richard, preparing for his -crusade of 1190, sold recklessly every right that would fetch a price: -William bought back the independence of his ancient kingdom; but this -restoration of the relations that had prevailed previous to 1174, -involved a restoration of all the old ambiguities. When Richard died, -William despatched ambassadors to England, pressing his claims upon the -northern counties, promising to support John’s title in return for their -admission, and adding threats.[1047] - ------ - -Footnote 1047: - - See Miss Norgate, _John Lackland_, 66. - ------ - -John avoided committing himself to a definite answer until his position -in England was assured; thereafter he commanded William to do homage -unconditionally. The Scots king disregarded the first summons, but -yielded to a second, taking the oath in public on the summit of the hill -of Lincoln, on 21st November, 1200, “reserving always his own -right.”[1048] The saving clause left everything vague as before. - ------ - -Footnote 1048: - - See Stubbs, _Const. Hist._, I. 596, n., and Norgate, _John Lackland_, - 73, 78. Cf. the words “_salvo jure suo_” with the “_et jure suo_” of - Magna Carta. - ------ - -In April, 1209, the king of Scots incurred John’s displeasure by -sheltering bishops who had supported the policy of Rome in the matter of -the interdict. William’s only son, Alexander, was demanded as a hostage, -or alternatively three border castles must be delivered up. After a -refusal, the old king gave in on 7th August, 1209.[1049] Alexander did -homage on behalf of his father “for the aforesaid castles and other -lands which he held,” and found sureties for the payment of 15,000 -marks. William’s daughters, Margaret and Isabel (the two ladies referred -to in Magna Carta) became the wards of John, who had the right to bestow -them in marriage—stipulations which come suspiciously near an admission -of feudal vassalage.[1050] There seems, however, to have been some -understanding that one of them should wed John’s eldest son.[1051] -Margaret and Isabel, though kept virtually as prisoners in Corfe Castle, -Dorset, were yet honourably and kindly treated there. The Close Rolls of -the reign contain several entries (which read strangely enough among the -sterner memorials of John’s diplomacy) containing orders for supplying -them with articles of comfort and luxury. Thus on 6th July, 1213, John, -busy as he must have been with affairs of state, instructed the Mayor of -Winchester to despatch in haste for the use of his niece Eleanor and of -the two Scots princesses robes of dark green (tunics and super-tunics) -with capes of cambric and fur of miniver, together with twenty-three -yards of good linen cloth, with light shoes for summer wear, “and the -Mayor is to come himself with all the above articles to Corfe, there to -receive the money for the cost of the same.”[1052] Margaret and Isabel -had no reason to complain of such treatment, whatever thoughts the Mayor -of Winchester may have had of so liberal an interpretation of his civic -duties. - ------ - -Footnote 1049: - - _New Rymer_, I. 103, where “Northampton” is apparently a mistake for - “Norham.” See Ramsay, _Angevin Empire_, 421, n. - -Footnote 1050: - - Ramsay, _Ibid._, and authorities there cited. - -Footnote 1051: - - Ramsay, _Angevin Empire_, 421, and authorities. - -Footnote 1052: - - _Rot. Claus._, I. 144, and I. 157. This Eleanor was the sister of - Prince Arthur. The fortunes of war had in 1202 placed both of them in - John’s hands. Arthur disappeared—murdered it was supposed; Eleanor - remained a prisoner for life; the Scots princesses were virtually her - fellow-prisoners for a time in Corfe Castle. - ------ - -Meanwhile, events in Scotland had favoured English pretensions. In the -year 1212, William, now in advanced age, although his son was still a -stripling, was compelled by internal troubles to appeal for aid to John. -Cuthred, a claimant for the Scottish throne as a descendant of Donald -Bane MacWilliam, having acquired a considerable following in Scotland, -endeavoured to dethrone King William; and his attempt seemed likely to -succeed, when English succour was asked and paid for by a Treaty signed -at Norham on 7th February, 1212. By this, William granted to John the -right to marry the young Alexander, then fourteen years of age, “_sicut -hominem suum ligium_,” to whomsoever he would, at any time within the -next six years, but always "without disparagement"—a phrase already -explained.[1053] William further pledged himself and his son to keep -faith and allegiance to John’s son, Henry, “as their liege lord” against -all mortals.[1054] The young Scottish prince thereafter journeyed -southwards in the train of John, by whom he was knighted on the 4th of -March at London. In June an English army entered Scotland; the pretender -was defeated and killed. William had saved his Crown, but his -independence was impaired. Scotland was gradually sinking into the -position of a vassal state. This was recognized at Rome. On 28th -October, 1213, Innocent III., among other healing measures consequent on -John’s surrender of his kingdom, ordered the king of Scotland and his -son to show fealty and devotion to John, in terms similar to those -addressed to the English barons.[1055] - -William the Lion died at Stirling on 4th December, 1214, and Alexander -was crowned at Scone two days later,[1056] his peaceful succession being -facilitated by the knowledge that he had the support of John. On 28th -April, 1215, the English king, already deep in his quarrel with the -barons, acknowledged receipt of Thomas Colville and other Scotsmen as -hostages.[1057] Such was the position of affairs when John was brought -to bay at Runnymede. The barons were willing to bid for the alliance of -Alexander; yet it was unnecessary to bid high, since his unsatisfied -claims on the northern counties predisposed him against the English -king. The barons, therefore, did nothing calculated to endanger such -hold as England had over the Scottish Crown. John promised to restore -Alexander’s sisters and other hostages unconditionally, but used words -which committed him on none of the disputed points.[1058] Franchises and -“right” were to be restored only in so far as accorded with the terms of -King William’s “charters” as interpreted by the judgment of the English -barons in the court of the English king.[1059] - ------ - -Footnote 1053: - - See _supra_, c. 6. - -Footnote 1054: - - _New Rymer_, I. 104. See also W. Coventry, II. 206. - -Footnote 1055: - - See _New Rymer_, I. 116. - -Footnote 1056: - - Ramsay, _Angevin Empire_, 477, n. - -Footnote 1057: - - See _Rot. Pat._, I. 134, and _New Rymer_, I. 120. - -Footnote 1058: - - Both ladies, however, remained prisoners after Henry III.’s accession. - Peter de Maulay, constable of Corfe Castle, was, in that king’s fifth - year, credited with sums expended on their behalf. _Rot. Claus._, I. - 466; see also I. 483. Both found permanent homes in England—Margaret - as wife of Hubert de Burgh, Earl of Kent (mentioned in preamble of - Magna Carta); Isabel as wife of Roger Bigod, Earl of Norfolk (one of - the Charter’s executors). See Ramsay, _Angevin Empire_, 421, and - authorities there cited. - -Footnote 1059: - - This reference to charters was probably intended to cover (_a_) the - Treaty of Falaise, (_b_) the agreement of 7th August, 1209, and (_c_) - the writ of 7th February, 1212, with the other charters to which it - refers. It called itself a charter, and suggested others by the words - _hinc et inde_. - ------ - -The allusion to the Scottish king as one among “our other barons of -England” need not be pressed against Alexander any more than similar -expressions should be pressed against John, whose position as Duke of -Normandy and Aquitaine in no way made England a fief of the French -Crown. In questions affecting his feudal position in France, John’s -peers were the dukes and counts of that country; and similarly those who -had a right to sit in judgment as Alexander’s peers over his claims to -English fiefs were the English earls and barons. Such a tribunal was not -likely to give decisions favourable to Scots pretensions at the expense -of England.[1060] - -Alexander, though no party to the treaty at Runnymede, was willing to -extract such benefit from it as he could. Accordingly, on 7th July, -1215, he despatched the Archbishop of St. Andrews and five laymen to -John “concerning our business which we have against you to be transacted -in your court.”[1061] Nothing came of this; and when the civil war began -Alexander invaded England in order to push his claims. John swore his -usual oath, "by God’s teeth," that he would “chase the little red-haired -fox-cub from his hiding holes.”[1062] Neither Alexander’s participation -in the war nor the subsequent efforts of diplomacy achieved settlement -of the questions in dispute. None of the latent ambiguities had been -finally removed when the relations between the two countries entered on -a new phase as a consequence of the attempts at annexation made by -Edward I., “the hammer of the Scots.” - ------ - -Footnote 1060: - - No. 46 of the Articles of the Barons (as qualified by the clause in - the bracket) referred the question of Alexander’s “right” in reference - to his father’s charters to the judgment of Langton and his nominees, - for which Magna Carta substituted “judgment of his peers in our - court.” - -Footnote 1061: - - _New Rymer_, I. 135. - -Footnote 1062: - - Matthew Paris, _Chron. Maj._, II. 642: “_Sic fugabimus rubeam - vulpeculam de latibulis suis_.” - ------ - - - - - CHAPTER SIXTY. - -Omnes autem istas consuetudines predictas et libertates quas nos -concessimus in regno nostro tenendas quantum ad nos pertinet erga -nostros, omnes de regno nostro, tam clerici quam laici, observent -quantum ad se pertinet erga suos. - - Moreover, all the aforesaid customs and liberties, the observance of - which we have granted in our kingdom as far as pertains to us towards - our men, shall be observed by all of our kingdom, as well clergy as - laymen, as far as pertains to them towards their men. - - -It would have been as impolitic as it was obviously unfair for the -barons, in their capacity of mesne lords, to inflict upon their own -tenants—the men without whose support they would have been powerless at -Runnymede—those very exactions which they compelled the king to abjure -as against themselves. Accordingly, the benefit of the same “customs and -liberties” conceded by John to his feudal tenants was—in a somewhat -perfunctory manner it is true—extended also to the feudal tenants of all -other magnates, whether cleric or lay. Although the reference to -“customs and liberties” was quite general in its terms, it seems natural -to infer that feudal grievances were chiefly, if not exclusively, -intended, since the view of society indicated is feudal rather than -national, and this is quite in keeping with many other clauses of the -Charter. - -These considerations suggest that too wide and liberal a view has -sometimes been taken of the scope of this chapter. Coke treated it as -affecting not merely freeholders, but the whole mass of the people, and -as enunciating a doctrine of mutual responsibility between the king and -his subjects. “This is the chief felicity of a kingdom, when good laws -are reciprocally of prince and people (as is here undertaken) duly -observed.”[1063] In this view he has had many followers, and the present -chapter has received undue emphasis as supporting a democratic -interpretation of Magna Carta.[1064] It has sometimes been referred to -as “the only clause which affects the whole body of the people.”[1065] -The better view is that its provisions were confined to freeholders. - ------ - -Footnote 1063: - - _Second Institute_, 77. - -Footnote 1064: - - Cf. _supra_, 133–4. - -Footnote 1065: - - Thomson, _Magna Charta_, 269, and authorities there cited. - ------ - -Even authors who interpret the chapter in this restricted application -are still prone to exaggerate its importance. Two opposite lines of -comment, in favour respectively with historians of two different -schools, seem equally in need of supplement. (1) This clause is -sometimes regarded as springing directly from the barons’ own -uncontrolled initiative. Dr. Stubbs takes this view, contrasting its -substance with similar restraints imposed by Henry I. on the barons by -his Charter of Liberties, and emphasizing as specially notable the fact -that the present clause was “adopted by the lords themselves.”[1066] -Such praise is unmerited; the barons had no option, since the omission -of provisions to this effect would have been a glaring absurdity and a -most imprudent act. (2) On the other hand, credit for the clause, -equally unwarranted, has been sometimes bestowed on John. Dr. Robert -Henry says that “this article, which was highly reasonable, was probably -inserted at the desire of the king.”[1067] - ------ - -Footnote 1066: - - _Const. Hist._, I. 570. Cf. _supra_, 139–140. - -Footnote 1067: - - _History of Great Britain_, VI. 74. (6th edition, 1823). See also S. - Henshall, _History of South Britain_, cited by Thomson, _Magna - Charta_, 268-9. - ------ - -The substance of this chapter appears in the reissues of 1217 and 1225; -but its force is there greatly impaired by the addition of a new clause -inconsistent with its spirit, reserving to archbishops, bishops, abbots, -priors, templars, hospitallers, earls, barons, and all other persons as -well ecclesiastical as secular, all the franchises and free customs they -previously had.[1068] The chief object of this was presumably to make it -clear that Magna Carta, while conferring benefits, took nothing away; -but it would naturally be interpreted as a saving clause in favour of -aristocrats in their relations with their dependants (“_erga suos_”) as -well as with the Crown, thus modifying the clause which immediately -preceded it. - ------ - -Footnote 1068: - - See c. 46 of 1217. - -Footnote 1069: - - The words “_in perpetuum_” are written at the foot of one of the - Cottonian versions. See _supra_, 195, n. - ------ - - - - - CHAPTER SIXTY-ONE. - -Cum autem pro Deo, et ad emendacionem regni nostri, et ad melius -sopiendam discordiam inter nos et barones nostros ortam, hec omnia -predicta concesserimus, volentes ea integra et firma stabilitate in -perpetuum[1069] gaudere, facimus et concedimus eis securitatem -subscriptam; videlicet quod barones eligant viginti quinque barones de -regno quos voluerint, qui debeant pro totis viribus suis observare, -tenere, et facere observari, pacem et libertates quas eis concessimus, -et hac presenti carta nostra confirmavimus, ita scilicet quod, si nos, -vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris -nostris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum -pacis aut securitatis transgressi fuerimus, et delictum ostensum fuerit -quatuor baronibus de predictis viginti quinque baronibus, illi quatuor -barones accedant ad nos vel ad justiciarum nostrum, si fuerimus extra -regnum, proponentes nobis excessum, petent ut excessum illum sine -dilacione faciamus emendari. Et si nos excessum non emendaverimus, vel, -si fuerimus extra regnum justiciarius noster non emendaverit, infra -tempus quadraginta dierum computandum a tempore quo monstratum fuerit -nobis vel justiciario nostro si extra regnum fuerimus, predicti quatuor -barones referant causam illam ad residuos de viginti quinque baronibus, -et illi viginti quinque barones cum communa tocius terre distringent et -gravabunt nos modis omnibus quibus poterunt, scilicet per capcionem -castrorum, terrarum, possessionum, et aliis modis quibus poterunt, donec -fuerit emendatum secundum arbitrium eorum, salva persona nostra et -regine nostre et liberorum nostrorum; et cum fuerit emendatum intendent -nobis sicut prius fecerunt. Et quicumque voluerit de terra juret quod ad -predicta omnia exequenda parebit mandatis predictorum viginti quinque -baronum, et quod gravabit nos pro posse suo cum ipsis, et nos publice et -libere damus licenciam jurandi cuilibet qui jurare voluerit, et nulli -umquam jurare prohibebimus. Omnes autem illos de terra qui per se et -sponte sua noluerint jurare viginti quinque baronibus, de distringendo -et gravando nos cum eis, faciemus jurare eosdem de mandato nostro, sicut -predictum est. Et si aliquis de viginti quinque baronibus decesserit, -vel a terra recesserit, vel aliquo alio modo impeditus fuerit, quominus -ista predicta possent exequi, qui residui fuerint de predictis viginti -quinque baronibus eligant alium loco ipsius, pro arbitrio suo, qui -simili modo erit juratus quo et ceteri. In omnibus autem que istis -viginti quinque baronibus committuntur exequenda, si forte ipsi viginti -quinque presentes fuerint, et inter se super re aliqua discordaverint, -vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum -habeatur et firmum quod major pars eorum qui presentes fuerint -providerit, vel preceperit, ac si omnes viginti quinque in hoc -consensissent; et predicti viginti quinque jurent quod omnia antedicta -fideliter observabunt, et pro toto posse suo facient observari. Et nos -nichil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua -istarum concessionum et libertatum revocetur vel minuatur; et, si -aliquid tale impetratum fuerit, irritum sit et inane et numquam eo -utemur per nos nec per alium. - - Since, moreover, for God and the amendment of our kingdom, and for the - better allaying of the quarrel that has arisen between us and our - barons, we have granted all these concessions, desirous that they - should enjoy them in complete and firm endurance for ever, we give and - grant to them the underwritten security, namely, that the barons - choose five-and-twenty barons of the kingdom, whomsoever they will, - who shall be bound with all their might, to observe and hold, and - cause to be observed, the peace and liberties we have granted and - confirmed to them by this our present Charter, so that if we, or our - justiciar, or our bailiffs or any one of our officers, shall in - anything be at fault toward anyone, or shall have broken any one of - the articles of the peace or of this security, and the offence be - notified to four barons of the foresaid five-and-twenty, the said four - barons shall repair to us (or our justiciar, if we are out of the - realm) and, laying the transgression before us, petition to have that - transgression corrected without delay. And if we shall not have - corrected the transgression (or, in the event of our being out of the - realm, if our justiciar shall not have corrected it) within forty - days, reckoning from the time it has been intimated to us (or to our - justiciar, if we should be out of the realm), the four barons - aforesaid shall refer that matter to the rest of the five-and-twenty - barons, and those five-and-twenty barons shall, together with the - community of the whole land, distrain and distress us in all possible - ways, namely, by seizing our castles, lands, possessions, and in any - other way they can, until redress has been obtained as they deem fit, - saving harmless our own person, and the persons of our queen and - children; and when redress has been obtained, they shall resume their - old relations towards us. And let whoever in the country desires it, - swear to obey the orders of the said five-and twenty barons for the - execution of all the aforesaid matters, and along with them, to molest - us to the utmost of his power; and we publicly and freely grant leave - to every one who wishes to swear, and we shall never forbid anyone to - swear. All those, moreover, in the land who of themselves and of their - own accord are unwilling to swear to the twenty-five to help them in - constraining and molesting us, we shall by our command compel the same - to swear to the effect foresaid. And if any one of the five-and-twenty - barons shall have died or departed from the land, or be incapacitated - in any other manner which would prevent the foresaid provisions being - carried out, those of the said twenty-five barons who are left shall - choose another in his place according to their own judgment, and he - shall be sworn in the same way as the others. Further, in all matters - the execution of which is entrusted to these twenty-five barons, if - perchance these twenty-five are present and disagree about anything, - or if some of them, after being summoned, are unwilling or unable to - be present, that which the majority of those present ordain or command - shall be held as fixed and established, exactly as if the whole - twenty-five had concurred in this; and the said twenty-five shall - swear that they will faithfully observe all that is aforesaid, and - cause it to be observed with all their might. And we shall procure - nothing from anyone, directly or indirectly, whereby any part of these - concessions and liberties might be revoked or diminished; and if any - such thing has been procured, let it be void and null, and we shall - never use it personally or by another. - - -This important chapter stands by itself, providing machinery for -enforcing all that precedes it. It thus forms what modern jurisprudence -would describe as the “sanction” of the whole, but what was known in the -current phrase of its own day as “the form of security” (_forma -securitatis ad observandum pacem et libertates_).[1070] It contains the -only executive clause of the Charter, the sole constitutional machinery -provided for enforcing the rights now defined on parchment, the sole -protection against future attempts of the king to render them of no -effect. - ------ - -Footnote 1070: - - This phrase occurs in the 49th (and last) of the Articles of the - Barons as the title of a clause which is separated from the others by - a blank on the parchment of the width of several lines of writing: - “_Haec est forma securitatis_,” etc. The words are not used as a - heading in the present chapter itself, but c. 52 refers to c. 61 as - the clause “_in securitate pacis_,” and c. 62 refers to the same as - “_super securitate ista_.” - ------ - -I. _The Nature of the “Security” or legal Sanction._ The procedure -devised for enforcing the Charter was exceedingly crude: John conferred -upon twenty-five of his most bitter enemies a legal right to organize -rebellion, whenever in their opinion he had broken one of the provisions -of Magna Carta. Violence might be legally used against him, until he -redressed their alleged grievances “to their own satisfaction” -(_secundum arbitrium eorum_). If it had been possible to put so violent -an expedient in practice, the “sovereignty,” or supreme power in -England, would have been split into two for practical purposes. While -the old monarchy remained theoretically intact, John would have held the -sceptre, still nominally his, only until his opponents declared that he -had broken some part of the Charter, when, by his own previously-granted -mandate, it would pass, along with wide powers of coercion, to the -twenty-five barons forming what is sometimes described as a Committee of -Executors, but which was rather a Committee of Rebellion.[1071] Instead -of using, as was afterwards done with steadily increasing success, the -king’s own administrative machinery and his own servants to restrain his -own misdeeds, the barons preferred to set up a rival executive of their -own, with wide but ill-defined powers, and connected with the older -executive by no constitutional bonds. So long as a single alleged -grievance remained unredressed, a new administration composed of John’s -political antagonists existed in an attitude of, at best, armed -neutrality, side by side with King John as the representative of the -older system of monarchic administration. - -Footnote 1071: - - Cf. S. R. Gardiner, _Short History of England_, 183: “a permanent - organization for making war against the king.” - ------ - -The procedure for redressing grievances was described in some detail; -the wronged party must make known his case to four barons of the -twenty-five, and these would then personally make it known to the king, -and ask redress. John was allowed time to effect this, but if he refused -or delayed, then compulsion might be used. The Articles of the Barons -had left the maximum term of delay unspecified, merely saying “within a -reasonable time to be determined in the Charter.” The Charter did -determine this, naming forty days. Compulsion might take any form (for -example seizure of castles, lands, and personal estate), except violence -against the person of the king, or against his wife or children. The -present chapter, then, contained the only legal sanction mentioned in -the Charter, and this may be briefly summarized as the delegation by -John to a revolutionary committee of the baronial opposition, of wide -powers of coercion to be used against him. - -II. _Minor Details of the Scheme._ Although the whole expedient seems -utterly chimerical to the modern mind, the opposition leaders in 1215 -evidently thought they had devised a practicable scheme of government. -This is shown by the care with which they elaborated the procedure to be -adopted at different stages and in various contingencies. - -(1) _Appointment of the twenty-five executors._ The members of the -committee were to be, in the first instance, “elected” (a loose word -already discussed) by the “barons.” The _majores barones_ of chapter 14 -would undoubtedly have the controlling voice; but the _minores barones_ -might possibly have taken some share in the appointment. Vacancies which -occurred through death, absence from England, or any other cause, were -to be filled by the method now known as “co-optation.” The committee, -once appointed, would form a close corporation; no one uncongenial to -the majority could gain admission—an arrangement with a thoroughly -oligarchic flavour. The provision for supplying vacancies caused by -death proves that the scheme was not to be temporary, but to last during -John’s lifetime or longer. Twenty-five magnates seem to have been -actually selected. The writs issued to the Sheriffs on 19th June command -the enforcement of the oath to the twenty-five barons, but do not -mention them by name. Matthew Paris supplies the omission, and though he -does not disclose the source of his information, it is unlikely that so -comprehensive a list could be entirely a work of the imagination.[1072] -They occur in the following order, the earls of Hertford, Aumâle, -Gloucester, Winchester, Hereford, Norfolk, and Oxford, William Marshall -the younger, Robert fitz Walter the elder, Gilbert de Clare, Eustace de -Vesci, Hugh Bigod, William of Mowbray, William Hardell (Mayor of -London), William de Lanvalei, Robert de Ros, John de Lacy (Constable of -Chester), Richard de Perci, John fitz Robert, William Mallet, Geoffrey -de Say, Roger de Mumbezon, William of Huntingfield, Richard de -Muntfitchet, and William of Albini.[1073] There are here no churchmen -and no members of the moderate party whose names appear in the preamble. -All except two, or at the most three, of the twenty-five were drawn from -those factions of the baronage who were the declared enemies of -John.[1074] It was an oligarchy of disaffected Crown tenants, whose -baronial homogeneity was only broken by the presence of one -representative of other classes, the Mayor of London. Such a committee -was not likely to use the excessive powers delegated to it by John to -further any other interests than its own. Even Stephen Langton and his -fellow-prelates were soon to discover this, as the two protests issued -by them clearly prove. - ------ - -Footnote 1072: - - R. Wendover, from whom Paris borrows so freely, gives no list. - -Footnote 1073: - - The list is taken from Matthew Paris, _Chron. Maj._, II. 604-5, as - corrected by Blackstone, _Great Charter_, p. xx., after collation with - a marginal note on the Harleian MS. of the charter (cf. _supra_, 198, - n). Paris gives “Boys” in place of “Ros,” and “Roger de Munbrai” in - place of “Roger of Mumbezon.” This list should be contrasted with - (_a_) that of the moderate party named in the preamble to Magna Carta, - and (_b_) that of John’s foreign favourites named in c. 50. For - biographical information, see Thomson, _Magna Charta_, 270–312. - -Footnote 1074: - - These three were Earl Aumâle (a title apparently sometimes exchanged - for that of Earl of York, see Round, _Geoffrey de Mandeville_, 157, - n.), William of Albini, and, possibly, Geoffrey de Say (see Stubbs, - _Const. Hist._, I. 583). - ------ - -(2) _A majority of those present to form a quorum._ Driven by the -necessities of the case, the barons devised, or stumbled upon, a -peculiarly modern expedient. The presence of every member of the -committee of twenty-five could not reasonably be expected upon every -occasion, while absolute unanimity on questions of delicacy would be -difficult to obtain. It was provided, accordingly, that the will of the -majority of those present should prevail. It would be inaccurate to say, -in modern phraseology, that thirteen formed a quorum, since the quorum -varied with the number of those present. It is notable that no provision -was made for summoning or constituting meetings of the committee endowed -with these tremendous powers. Room was thus left for packed meetings of -one faction being hurriedly convened and usurping the rights of the -whole body. The precedent thus tentatively introduced for the right of a -majority to act for the whole was followed only timidly and at long -intervals. Still, its appearance in John’s Charter marks a stage in the -advance of the valuable principle of modern politics which substitutes -the “counting of heads for the breaking of them.” - -(3) _The sub-committee of four._ Four of the twenty-five Executors were -to act as a medium of intercourse between aggrieved individuals and the -king, being charged with the duty of hearing complaints and laying them -before John. Such a position would involve wide discretionary powers; -for if the four barons refused to endorse the justice of the complaint, -John also would be in safety to refuse.[1075] - ------ - -Footnote 1075: - - An alternative explanation is also possible, namely, that the function - of intermediary might be exercised by any four members of the - twenty-five. In that view, an aggrieved individual might have pressure - placed upon the king if he persuaded any four to act together in - support of his claim. This would imply a second quorum, this time of - four, for a special purpose, in addition to the quorum of varying - numbers already discussed. In either view, the road to redress would - be easier for the great man than for his obscure neighbour. - ------ - -(4) _Local agents of the twenty-five executors._ In each county the -twelve knights, whose original function was to preside at inquiries into -“evil customs,” came to act as the local representatives of the -revolutionary committee, being associated with the sheriff in the -discharge of all his duties and armed with power to constrain him to -carry out the provisions of Magna Carta, very much as the twenty-five -were authorized to constrain the king. In particular, these knights were -charged with the enforcement of the oath of obedience to the -revolutionary committee, and with the confiscation of the property of -all who refused.[1076] - ------ - -Footnote 1076: - - Cf. _supra_, c. 48. - ------ - -(5) _The part to be played by the public._ The king authorized his -subjects to side with the executors and against him if he should violate -the Charter, and to assist them in such acts of violence as the forcible -seizure of his castles, lands, and personal estate; for his general -mandate was granted to the twenty-five “_cum communa totius terre_,” -while licence was “freely and publicly” bestowed on everyone so disposed -to swear obedience to the Executors in all such acts, and to bring their -weight to bear on the king to the best of their ability. Two aspects of -this provision require special attention: (_a_) _Its relation to -allegiance and treason._ It was intended to operate as a provisional -release of John’s subjects from their oaths of fealty and homage, and -consequently from the pains and penalties of the treason laws. John -solemnly authorized his subjects, in certain circumstances, to transfer -their allegiance from himself to the committee of his foes. If they -refused, he promised to compel them; and on 27th June, 1215, writs were -actually issued instructing the seizure of the lands and goods of all -who would not swear to obey the twenty-five.[1077] (_b_) _Communa totius -terre._ The “community of the whole land” was thus to afford active help -in subjecting the king to the reign of law; and the phrase has been -pressed into the service of democracy by enthusiasts who seek to magnify -modern conceptions by finding their roots in the past. Few words of -medieval Latin offer a more tempting field to enquirers than this -_communa_, which, with its English and French equivalents, holds the key -to many problems of constitutional origins. A group of interesting -questions clusters round the three words “borough, guild, and commune,” -and the appearance in Magna Carta of a body described as a “commune” -(_communa totius terre_) in conjunction with an oath of obedience to a -revolutionary committee suggests an interesting comparison with the form -of civic constitution known in that age as “the sworn commune.”[1078] A -second field of enquiry, equally alluring, is suggested by the fact that -the lower chamber of the Mother of Parliaments, the English “House of -Commons,” was originally composed of the representatives of the various -communes or communities known as counties and boroughs respectively. - ------ - -Footnote 1077: - - See Appendix. - -Footnote 1078: - - It was only fourteen years since London (in 1191), probably following - the lead of Rouen, had extorted its “sworn commune” from Prince John - as the price of its support (cf. _supra_, c. 13). It might be - dangerous, however, to push so tempting an analogy too far. - ------ - -These wider questions are here referred to merely as illustrations of -the difficulties that lurk in the word “commune,” and in the equally -perplexing phrase “commune of the whole land.”[1079] The mere use of -such a phrase cannot be accepted as a proof that the Charter rests on a -broad popular basis. - ------ - -Footnote 1079: - - Cf. _supra_, pp. 137-8. - ------ - -III. _Criticism of the Scheme._ The faults of the scheme, whether viewed -from the side of theory or of practice, are obvious. It was a violent -and unnatural measure, full of immediate dangers, and calculated to -exercise a baneful influence on constitutional development in the -future. The fact that Magna Carta provided no better sanction for its -own enforcement than the right of legalized rebellion has already been -discussed as its cardinal defect.[1080] Instead of preventing the king -from inflicting wrongs, it merely provided forcible measures for the -redress of those already committed, thus adding the crowning evil of -civil war to those minor evils it sought to reform. That the whole -scheme was foredoomed to failure constitutes perhaps its least -conspicuous fault in the eyes of later history. It is instructive to -note a few of its other defects in detail. - ------ - -Footnote 1080: - - See _supra_, p. 150. - ------ - -(1) The scheme challenged hostility by its want of moderation. It aimed -at reducing the Crown at one blow from the plenitude of irresponsible -tyranny to a position of degrading impotence. On every vexed political -question of the day, John’s authority would have been superseded by that -of twenty-five of the most hostile faction of the baronage. If the king -thought himself aggrieved in anything, he would require to plead his -cause humbly before a tribunal in which his opponents sat as judges. The -scheme was thus repugnant to the mass of loyal Englishmen, who cherished -a respect for the time-honoured principle of monarchy. No king with a -grain of self-respect would long submit tamely to a position so -illogical and degrading—to remain a sovereign whose “sovereignty” -existed merely on the sufferance of his enemies, a puppet-king whose -subjects had the legal right to coerce him. The powers thus conferred on -a baronial committee in 1215 were more sweeping than those conferred on -a similar committee in 1258, and yet the Parliament which appointed the -latter has been branded for all time as “the Mad Parliament,” because of -the violence of its measures against the king. - -(2) Rebellion, even where morally justified, is essentially and -necessarily illegal; to attempt to map out for it a legitimate sphere of -action is to attempt the logically impossible. The barons, in their -dearth of political experience, and in the extremity of their need, had -demanded and obtained something more dangerous than the amplest measure -of constitutional authority. They had failed to rise to the true -conception of a limited monarchy. Their scheme recognized a king still -absolute in some matters, but in others powerless and abject. They set -up side by side two rival Executives, each in different circumstances -supreme. The relations of the two were far from accurately defined, even -in theory, while collisions were certain to occur frequently in -practice. The powers of the twenty-five, a body which received no proper -organization, were those of aggression rather than of administration. -Viewed in this light, the claims of the barons to constructive -statesmanship rank extremely low. - -(3) The powers of the Revolutionary Committee, excessive though -ill-defined, backed by the sworn obedience of all classes of the nation, -would tend completely to paralyze the king. The nominal sovereign, -always nervous under this sword of Damocles, would lose all power of -initiative, while the committee, so powerful to reduce him to impotence, -would be powerless alike to goad him into action or to act in his stead. -The Revolutionary Committee had been planned as a drag on a bad -executive, not as a good executive to take its place. - -(4) Even as a drag, however, the efficiency of the committee would have -been completely neutralized in either of two contingencies: if the -barons composing it disagreed among themselves, or, if the king refused -to surrender, preferring the appeal to arms. The monarch had always the -alternative of civil war, and the material and moral advantage of acting -on the defensive lay with him; while the committee had to face the risks -to which an attacking party is invariably exposed. Not a single step to -restrain the king could legally be taken until he had precipitated -matters by committing a clear act of aggression, and had thereafter -received formal intimation followed by an interval of forty days, during -which he might complete his preparation for war without fear of -interruption. - -(5) If the scheme of the barons seems ill-suited to meet the needs of -the hour of its conception, it was fraught with even greater dangers to -the future development of the English constitution. The problem it -sought to solve was one of no transient or unimportant nature, since it -was nothing less than the devising of legal machinery to prevent the -king from abusing the powers entrusted to him. The barons sought the -best method of turning royal promises of reform into laws which -succeeding kings must obey. In attempting this, Magna Carta moved along -lines which were radically wrong; which, if not departed from in time, -would have rendered any enduring progress impossible. The statesmanship -which, while leaving one king on the throne, subjected him to the -dictation of “five-and-twenty over-kings” in regard to all vital -questions of the day, was crude and ill-advised. It is true that the -party of reform throughout the long reign of Henry III. clung to the -same erroneous solution, although under various modifications on points -of detail; but they met with no success. After half a century of unrest -a settlement seemed as far distant as before. If the same policy had -been persisted in during Edward’s reign the English constitution, as it -became known to after ages, would never have been evolved. The dangers -and defects of schemes like those of 1215 and of 1258 are most clearly -seen in contrast with the more tactful efforts of Edward I. towards a -true solution, along lines leading in due time to complete success. - -The true policy for the barons was to use the king’s own administrative -machinery and the king’s own servants to control the king himself. The -principle was slowly established that the sovereign could perform no -single act of prerogative except through the agency of the proper -minister or group of ministers. Each function of government became -associated with a specific office or organ of the royal household. The -rights of the official head of each department became stereotyped, and -his position obtained full legal acknowledgment, while very gradually -the doctrine of ministerial responsibility grew up, compelling each -officer of the Crown to obey not only the law of the land, but also the -_Commune Concilium_, fast changing into the modern Parliament. The -expedients of an earlier age disappeared as no longer required, when the -king’s good faith was secured by means of the friendly control of his -own ministers, not by the violent compulsion of his opponents. The -credit of starting the constitution on its right line of development is -in great measure due to Edward I.[1081] - ------ - -Footnote 1081: - - Cf. _supra_, pp. 189-193 for a sketch of Edward’s policy. - ------ - -IV. _Dr. Gneist’s Criticism._ Dangerous and even absurd as this scheme -appears, it has found its apologist. Dr. Gneist accuses English -historians of making “very inappropriate comparisons” between this -baronial committee and the continental expedients of the same period. -While in most countries of Europe, each baron arrogated the right of -private war against his sovereign in circumstances to be determined by -his own individual judgment, Magna Carta conferred rights of rebellion -only on the barons “in their collective capacity,” and “as represented -by definite organs.”[1082] The substitution of collective repressive -measures for the right of private feud undoubtedly marks an advance; but -rebellion, even when organized, cannot be considered a satisfactory -constitutional expedient. Dr. Gneist is scarcely more convincing when he -argues that English historians and jurists have condemned too -unreservedly a scheme which is “so far in harmony with the spirit of the -feudal state of the Middle Ages as it was based upon a mutual relation -of feudal protection and fealty, that is, upon compact.” “The concession -by agreement,” he continues, “of the rights of distress was altogether -so entirely consonant with the legal conceptions of the Middle Ages that -in this way the committee of resistance loses a portion of its -apparently revolutionary character.”[1083] That the Middle Ages approved -of revolution does not, however, change it into constitutional action; -while the fact that it was founded upon the feudal conception of mutual -contract may explain it, but does not render it more worthy of -admiration. The whole scheme was, of course, thoroughly in accord with -the public opinion of the age, but that merely shows how wide is the -gulf which separates medieval conceptions from modern ones, and how -absurd it is to regard the Great Charter, as is sometimes done, as -anticipating the fundamental principles of the English constitution of -to-day. - ------ - -Footnote 1082: - - Gneist, _English Const._, 251. - -Footnote 1083: - - _Ibid._ - ------ - -In spite of all apologies, the crudeness of the only sanction provided -by Magna Carta for its own enforcement prevents it from ranking as a -great monument of constructive statesmanship. - -V. _Failure of the Scheme._ Almost before John’s Magna Carta, in its -completed form, had been engrossed and sealed, the futility of its -sanction was recognized. Each side grew suspicious and demanded new -“sanctions,” new guarantees not contained in the Charter. - -(1) _Quis custodiet ipsos custodes?_ Magna Carta, assuming apparently -that perfect trust could be placed in the rectitude and wisdom of the -Revolutionary Committee, provided no machinery for controlling them, no -guarantee that they would observe the Charter without misinterpreting -its provisions to suit their own selfish interests. The futility of this -complacency was soon manifest. One tyrant had brought distress on the -whole nation; and now he was to be superseded by five-and-twenty. Who -was to restrain the new tyrants? A second committee was nominated partly -to assist and partly to control the twenty-five. Matthew Paris[1084] -describes it as composed of thirty-eight “_Obsecutores et -Observatores_,” including the Earl Marshal, Hubert de Burgh, the earls -of Arundel and Warenne, and other prominent members of the moderate -party, not unfriendly to the king. Dr. Stubbs dismisses their relations -to the executors with the remark that they “swore to obey the orders of -the twenty-five.”[1085] Miss Norgate takes what seems to be a better -view, in emphasizing as the chief reason for their appointment the duty -of compelling “both the king and the twenty-five to deal justly with one -another.”[1086] The thirty-eight were required to constrain the -twenty-five, as the twenty-five constrained the king.[1087] - ------ - -Footnote 1084: - - _Chron. Maj._, II. 605-6. - -Footnote 1085: - - _Const. Hist._, I. 583, n. - -Footnote 1086: - - _John Lackland_, 236. - -Footnote 1087: - - One version of the narrative of Matthew Paris is much fuller than the - other. The first MS. merely says, “_Isti omnes juraverunt quod - obsequerentur mandato viginti quinque baronum._” The second gives the - important addition, “_Omnes isti juraverunt cogere si opus esset - ipsos_ xxv. _barones ut rectificarent regem_. _Et etiam cogere ipsum - si mutato animo forte recalcitraret_,” II. 606, n. - ------ - -(2) _Suspicions of the barons’ good faith._ Whether the appointment of -the committee of thirty-eight was due partly to John’s influence or was -entirely the result of mutual jealousies in the ranks of those opposed -to him, there is absolute evidence that the king was distrustful of the -barons’ good faith, and desired on his part some “sanction” that they -would not again renounce that allegiance, the renewal of which was the -_quid pro quo_ for which he had granted the Charter. Apparently the -leading barons did renew their oath of fealty and homage on 19th June at -Runnymede; but refused to grant a formal Charter to that effect, -although they had promised to give any security John might require, -except hostages or castles. The prelates when appealed to sided with the -king; they executed a formal declaration or protest, recording the -barons’ promise and subsequent refusal to give effect to it. There is no -reason to doubt the testimony of the prelates; they had been present at -all the negotiations, and it was by their mediation that the terms of -peace embodied in Magna Carta had been settled. This was not the only -matter on which the bishops found it necessary to intervene on the -king’s behalf. The new baronial executive and the twelve knights who -acted as their agents in each county, pushed to unfair lengths the -authority to reform abuses conferred on them in terms of Magna Carta. In -particular, they proceeded virtually to abolish the royal forests -altogether by abrogating as evil customs the procedure on which this -branch of the Crown’s prerogative rested. The prelates placed on record -a formal protest on this head also.[1088] - ------ - -Footnote 1088: - - The texts of both Protests are given in the Appendix. - ------ - -(3) _Suspicions of John’s good faith._ If neither the king nor the -nation at large considered that the Great Charter contained sufficient -safeguards of their interests against the Committee of Executors, the -barons themselves soon came to the conclusion that the Committee, in -spite of all its powers, formed an inadequate sanction against John. -Accordingly they demanded further “security.” The city of London was -placed in their hands, and the Tower of London in the neutral custody of -the primate, as pledges of John’s good faith, until 15th August or -longer if need were. Those terms were reduced to writing in a document -entitled “_Conventio facta inter Regem Anglie et barones ejusdem -regni_,” which thus supplied a new sanction, or “form of security,” -supplementing, if not superseding, that contained in chapter 61 of Magna -Carta.[1089] - ------ - -Footnote 1089: - - See _supra_, 51–2. The text is given in Appendix. Thirteen of the - twenty-five executors are mentioned by name as agreeing to this new - treaty on behalf of themselves and other earls, barons and freeholders - unnamed. Cf. R. Wendover, III. 319 (“_et turrem Londonarum_”). A third - sanction, or form of security, appears in the garbled versions of the - Charter given by R. Wendover (III. 317) and M. Paris (II. 603): the - constables of the four royal castles of Northampton, Kenilworth, - Nottingham and Scarborough, were to swear to hold these strongholds - under orders of the twenty-five executors. See M. Paris (_Ibid._). - This clause has not been found in any known copy of any issue of Magna - Carta. Cf. Mr. H. R. Luard’s _preface_ to the second volume of Matthew - Paris, pp. xxxiii. to xxxvi., where he discusses the peculiarities of - the versions given by Wendover and Paris. - ------ - -(4) _Precautions against papal intervention._ The Articles of the barons -afford undoubted evidence of its framers’ suspicions that John would -apply to Rome for absolution from his bargain. They showed considerable -shrewdness in demanding that the English prelates and the papal legate -should become the king’s sureties that he would not procure from the -Pope anything to invalidate the Charter or diminish its efficacy. If -Pandulf, as the Pope’s accredited agent, had actually put his seal to -such a document, he would have seriously embarrassed his august master -in supporting John in a course of repudiation. - -Two important alterations in the completed Charter were effected, -however, whether at John’s instance, or at that of Pandulf, or of the -English prelates, is matter of conjecture. No mention was made of -Innocent by name, the clause being made quite general in its terms. John -merely promised to procure a dispensation “from no one,” while the -question of sureties was quietly ignored. The reason for the omission -readily suggests itself; Pandulf would naturally object to commit his -principal or himself to any pledge of the kind. The Pope preserved -perfect freedom, and the use which he made of this is matter of common -knowledge.[1090] - ------ - -Footnote 1090: - - Cf. _supra_, p. 55. - ------ - - - - - CHAPTER SIXTY-TWO. - -Et omnes malas voluntates, indignaciones, et rancores ortos inter nos et -homines nostros, clericos et laicos, a tempore discordie, plene omnibus -remisimus et condonavimus. Preterea omnes transgressiones factas -occasione ejusdem discordie, a Pascha anno regni nostri sextodecimo -usque ad pacem reformatam, plene remisimus omnibus, clericis et laicis, -et quantum ad nos pertinet plene condonavimus. Et insuper fecimus eis -fieri litteras testimoniales patentes domini Stephani Cantuariensis -archiepiscopi, domini Henrici Dublinensis archiepiscopi, et episcoporum -predictorum, et magistri Pandulfi, super securitate ista et -concessionibus prefatis. - - And all the ill-will, hatreds, and bitterness that have arisen between - us and our men, clergy and lay, from the date of the quarrel, we have - completely remitted and pardoned to everyone. Moreover, all trespasses - occasioned by the said quarrel, from Easter in the sixteenth year of - our reign till the restoration of peace, we have fully remitted to - all, both clergy and laymen, and completely forgiven, as far as - pertains to us. And, on this head, we have caused to be made out to - them letters patent of Stephen, archbishop of Canterbury, Henry, - archbishop of Dublin, the bishops aforesaid, and master Pandulf, as - evidences of this clause of security and of the foresaid concessions. - - -The clauses which follow the _forma securitatis_ are entirely of a -formal nature, adding nothing to the substance of Magna Carta. The -present chapter, after making a well-meant declaration that bygones -should be bygones, and that perfect peace and goodwill should everywhere -prevail—a pious aspiration doomed to speedy disillusion—proceeds to -authorize the prelates to issue under their seals certified copies of -the terms of the Great Charter. Such letters were actually issued, and -their terms are preserved in the Red Book of the Exchequer.[1091] - ------ - -Footnote 1091: - - See _folio_ 234. The text which is reproduced by Bémont, _Chartres_, - p. 35, runs as follows: "Omnibus Christi fidelibus ad quos presens - scriptum pervenerit, Stephanus Dei gratia Cantuariensis - archiepiscopus, tocius Anglie primas et sancte romane ecclesie - cardinalis, Henricus, eadem gratia Dublinensis archiepiscopus, - Willelmus Londoniensis, Petrus Wintoniensis, Joscelinus, Bathoniensis - et Glastoniensis, Hugo Lincolniensis, Walterus Wigorniensis, Willelmus - Coventriensis et Benedictus Roffensis, divina miseracione episcopi, et - magister Pandulfus domini pape subdiaconus et familiaris, salutem in - Domino. Sciatis nos inspexisse cartam quam dominus noster Johannes - illustris rex Anglie fecit comitibus, baronibus et liberis hominibus - suis Anglie de libertate sancte ecclesie et libertatibus et liberis - consuetudinibus suis eisdem ab eo concessis sub hac forma.... - - . . . . [Here follows the text of John’s Magna Carta]. . . . - - Et ne huic forme predicte aliquid possit addi vel ab eadem aliquid - possit subtrahi vel minui, huic scripto sigilla nostra apposuimus." - ------ - - - - - CHAPTER SIXTY-THREE. - -Quare volumus et firmiter precipimus quod Anglicana ecclesia libera sit -et quod homines in regno nostro habeant et teneant omnes prefatas -libertates, jura, et concessiones, bene et in pace, libere et quiete, -plene et integre sibi et heredibus suis, de nobis et heredibus nostris, -in omnibus rebus et locis, in perpetuum, sicut predictum est. Juratum -est autem tam ex parte nostra quam ex parte baronum, quod hec omnia -supradicta bona fide et sine malo ingenio observabuntur. Testibus -supradictis et multis aliis. Data per manum nostram in prato quod -vocatur Ronimede, inter Windlesoram et Stanes, quinto decimo die Junii, -anno regni nostri decimo septimo. - - Wherefore it is our will, and we firmly enjoin, that the English - Church be free, and that the men in our kingdom have and hold all the - aforesaid liberties, rights, and concessions, well and peaceably, - freely and quietly, fully and wholly, for themselves and their heirs, - of us and our heirs, in all respects and in all places for ever, as is - aforesaid. An oath, moreover, has been taken, as well on our part as - on the part of the barons, that all these conditions aforesaid shall - be kept in good faith and without evil intent. Given under our - hand—the above-named and many others being witnesses—in the meadow - which is called Runnymede, between Windsor and Staines, on the - fifteenth day of June, in the seventeenth year of our reign. - - -This last of the sixty-three chapters into which Magna Carta has been -divided for purposes of convenience, not by its framers, but by modern -commentators, contains little that calls for special comment. Beginning -with a repetition of the declarations already made in chapter one that -the English church should be free (omitting, however, any second -reference to canonical election) and that _homines in regno nostro_ -should have and hold all of the aforesaid liberties, rights and -concessions, it went on to record the fact that both parties had taken -oath to observe its contents in good faith.[1092] The magnates named in -the preamble were thereafter, along with many others who were not named, -referred to collectively as witnesses. The Charter concludes with the -declaration that it has been “given by our hand,” the place and date -being specified, so as to conform to the formalities required in legal -documents. The actual giving by John’s hand was effected by the impress -of his great seal.[1093] - ------ - -Footnote 1092: - - Cf. _supra_, 125. - -Footnote 1093: - - There are no signatures to the document. The frequent references to - “the signing of the Great Charter” (_e.g._ Medley, _Const. Hist._, - 127) are thus inaccurate, if “signing” is taken in its modern sense of - “subscribing,” but may perhaps be justified by a reference to _signum_ - in its original meaning of “a seal.” To imprint a seal was, in a - sense, “to sign.” That Magna Carta, in spite of its mention of its own - date as 15th June, was actually sealed on the 19th has already been - asserted, _supra_, 48–49. To the proofs there adduced should be added - the testimony of the _Annals of Dunstable_, III. 43, which report that - peace was made between king and barons at Runnymede “_die Gervasii et - Protasii_.” - ------ - - - - - APPENDIX. - DOCUMENTS RELATIVE TO, OR ILLUSTRATIVE - OF JOHN’S MAGNA CARTA. - - - - - I. THE CHARTER OF LIBERTIES OF HENRY I.[1094] - ------ - -Footnote 1094: - - The text is founded on that of the _Statutes of the Realm_, I. 1; but - has been also collated with the admirable text prepared by M. Bémont, - _Chartes_, 1–6, whose emendations have been freely used not only for - this Charter, but for all those which follow in this Appendix. M. - Bémont gives an exhaustive account of the copies of the lost original - of Henry’s charter. - ------ - - (1100.) - -Anno incarnationis dominice M.CI. Henricus, filius Willelmi regis, post -obitum fratris sui Willelmi Dei gratia rex Anglorum, omnibus fidelibus -salutem. - -1. Sciatis me Dei misericordia et communi consilio baronum totius regni -Anglie, ejusdem regem coronatum esse. Et, quia regnum oppressum erat -injustis exactionibus, ego, Dei respectu et amore quem erga vos habeo, -sanctam Dei ecclesiam inprimis liberam facio, ita quod nec vendam, nec -ad firmam ponam, nec mortuo archiepiscopo, sive episcopo, sive abbate, -aliquid accipiam de dominico ecclesie vel de hominibus ejus, donec -successor in eam ingrediatur. Et omnes malas consuetudines, quibus -regnum Anglie injuste opprimebatur, inde aufero; quas malas -consuetudines ex parte hic pono: - -2. Si quis baronum, comitum meorum, sive aliorum qui de me tenent, -mortuus fuerit, heres suus non redimet terram suam sicut faciebat -tempore fratris mei, sed justa et legitima relevatione relevabit eam. -Similiter et homines baronum meorum justa et legitima relevatione -relevabunt terras suas de dominis suis. - -3. Et si quis baronum vel aliorum hominum meorum filiam suam nuptum -tradere voluerit, sive sororem, sive neptim, sive cognatam, mecum inde -loquatur; sed neque ego aliquid de suo pro hac licentia accipiam, neque -defendam ei quin eam det, excepto si eam vellet jungere inimico meo. Et -si, mortuo barone sive alio homine meo, filia heres remanserit, illam -dabo consilio baronum meorum cum terra sua. Et si, mortuo viro, uxor -ejus remanserit et sine liberis fuerit, dotem suam et maritationem -habebit; et eam non dabo marito, nisi secundum velle suum. - -4. Si vero uxor cum liberis remanserit, dotem quidem et maritationem -habebit dum corpus suum legitime servaverit, et eam non dabo, nisi -secundum velle suum; et terre et liberorum custos erit sive uxor, sive -alius propinquarius qui justius esse debeat. Et precipio quod barones -mei similiter se contineant erga filios vel filias et uxores hominum -suorum. - -5. Monetagium commune, quod capiebatur per civitates et comitatus, quod -non fuit tempore regis Edwardi, hoc ne amodo sit omnino defendo. Si quis -captus fuerit, sive monetarius, sive alius, cum falsa moneta, justicia -recta inde fiat. - -6. Omnia placita et omnia debita que fratri meo debebantur condono, -exceptis rectis firmis meis, et exceptis illis que pacta erant pro -aliorum hereditatibus, vel pro eis rebus que justius aliis contingebant. -Et si quis pro hereditate sua aliquid pepigerat, illud condono, et omnes -relevationes que pro rectis hereditatibus pacte fuerant. - -7. Et si quis baronum vel hominum meorum infirmabitur, sicut ipse dabit -vel dare disponet pecuniam suam, ita datam esse concedo; quod si ipse, -preventus armis vel infirmitate, pecuniam suam non dederit val dare -disposuerit, uxor sua, sive liberi, aut parentes, et legitimi homines -ejus, eam pro anima ejus dividant, sicut eis melius visum fuerit. - -8. Si quis baronum vel hominum meorum forisfecerit, non dabit vadium in -misericordia pecunie, sicut faciebat tempore patris mei vel fratris mei; -sed, secundum modum forisfacti, ita emendabit sicut emendasset retro a -tempore patris mei, in tempore aliorum antecessorum meorum. Quod si -perfidie vel sceleris convictus fuerit, sicut justum fuerit sic emendet. - -9. Murdra etiam, retro ab illa die qua in regem coronatus fui, omnia -condono; et ea que amodo facta fuerint, juste emendentur secundum lagam -regis Edwardi. - -10. Forestas, omni consensu baronum meorum, in manu mea retinui sicut -pater meus eas habuit. - -11. Militibus qui per loricas terras suas defendunt, terras dominicarum -carrucarum suarum quietas ab omnibus gildis et omni opere proprio dono -meo concedo, ut, sicut tam magno allevamine alleviati sunt, ita se equis -et armis bene instruant ad servitium meum et ad defensionem regni mei. - -12. Pacem firmam in toto regno meo pono et teneri amodo precipio. - -13. Lagam Edwardi regis vobis reddo cum illis emendationibus quibus -pater meus eam emendavit consilio baronum suorum. - -14. Si quis aliquid de rebus meis vel de rebus alicujus post obitum -Willelmi regis fratris mei cepit, totum cito sine emendatione reddatur; -et si quis inde aliquid retinuerit, ille super quem inventum fuerit -michi graviter emendabit. - -Testibus Mauricio Lundonie episcopo, et Gundulfo episcopo, et Willelmo -electo episcopo, et Henrico comite, et Simone comite, et Waltero -Giffardo, et Rodberto de Monfort, et Rogero Bigoto, et Henrico de Portu, -apud Londoniam, quando fui coronatus. - - - - - II. THE SECOND OR OXFORD CHARTER OF STEPHEN.[1095] - (1136.) - ------ - -Footnote 1095: - - The text is founded on that of the _Statutes of the Realm_, I. 3. Cf. - Bémont, _Chartes_, 8–10, who discusses the various editions. Mr. R. - Lane Poole has noted the variants of an original of the Charter - preserved in the muniment room of Salisbury Cathedral; see _Report on - Manuscripts in Various Collections_, I. 384-5 (Historical Manuscripts - Commission, 1901). Two of these variants have been here adopted (a) - “_regem Anglie_” for “_regem Anglorum_” and (b) “_postmodum_” added - after “_pontifice_.” - ------ - -Ego Stephanus Dei gratia, assensu cleri et populi in regem Anglie -electus, et a Willelmo Cantuariensi archiepiscopo et sancte Romane -ecclesie legato consecratus, et ab Innocentio sancte romane sedis -pontifice postmodum confirmatus, respectu et amore Dei sanctam ecclesiam -liberam esse concedo, et debitam reverentiam illi confirmo. Nichil me in -ecclesia vel rebus ecclesiasticis simoniace acturum vel permissurum esse -promitto. Ecclesiasticarum personarum et omnium clericorum et rerum -eorum justiciam et potestatem et distributionem honorum ecclesiasticorum -in manu episcoporum esse perhibeo et confirmo. Dignitates ecclesiarum -privilegiis earum confirmatas et consuetudines earum antiquo tenore -habitas inviolate manere statuo et concedo. Omnes ecclesiarum -possessiones et tenuras, quas die illa habuerunt qua Willelmus rex avus -meus fuit vivus et mortuus, sine omni calumpniantium reclamatione, eis -liberas et absolutas esse concedo. Si quid vero de habitis vel possessis -ante mortem ejusdem regis quibus modo careat, ecclesia deinceps -repetierit, indulgentie et dispensationi mee vel restituendum vel -discutiendum reservo. Quecunque vero post mortem ipsius regis -liberalitate regum vel largitione principum, oblatione vel comparatione, -vel qualibet transmutatione fidelium eis collata sunt, confirmo. Pacem -et justiciam me in omnibus facturum et pro posse meo conservaturum eis -promitto. - -Forestas quas Willelmus avus meus et Willelmus avunculus meus -instituerunt et habuerunt mihi reservo. Ceteras omnes quas rex Henricus -superaddidit, ecclesiis et regno quietas reddo et concedo. - -Si quis episcopus vel abbas vel alia ecclesiastica persona ante mortem -suam rationabiliter sua distribuerit vel distribuenda statuerit, firmum -manere concedo. Si vero morte preoccupatus fuerit, pro salute anime -ejus, ecclesie consilio, eadem fiat distributio. Dum vero sedes propriis -pastoribus vacue fuerint, ipsas et earum possessiones omnes in manu et -custodia clericorum vel proborum hominum ejusdem ecclesie committam, -donec pastor canonice substituatur. - -Omnes exactiones et injusticias et mescheningas sive per vicecomites vel -per alios quoslibet male inductas funditus exstirpo. Bonas leges et -antiquas et justas consuetudines in murdris et placitis et aliis causis -observabo et observari precipio et constituo. Hec omnia concedo et -confirmo, salva regia et justa dignitate mea. - -Testibus Willelmo Cantuariensi archiepiscopo, et Hugone Rothomagensi -archiepiscopo, et Henrico Wintoniensi episcopo, et Rogero Saresberiensi -episcopo, et Alexandro Lincolniensi episcopo, et Nigello Eliensi -episcopo, et Evrardo Norwicensi episcopo, et Simone Wigorniensi -episcopo, et Bernardo episcopo de S. Davide, et Audoeno Ebroicensi -episcopo, et Ricardo Abrincensi episcopo, et Roberto Herefordiensi -episcopo, et Johanne Rovecestriensi episcopo, et Athelulfo Carlolensi -episcopo, et Rogero cancellario, et Henrico nepote Regis, et Roberto -comite Gloecestrie, et Willelmo comite de Warenna, et Rannulfo comite -Cestrie, et Roberto comite de Warewic., et Roberto de Ver., et Milone de -Glocestria, et Brientio filio Comitis, et Roberto de Oilly conestabulis, -et Willelmo Martello, et Hugone Bigot, et Hunfredo de Buhun, et Simone -de Belcamp dapiferis, et Willelmo de Albiniaco, et Eudone Martello -pincernis, et Roberto de Ferreriis, et Willelmo Pevrello de Notingeham, -et Simone de Saintliz, et Willelmo de Albamarla, et Pagano filio -Johannis, et Hamone de Sancto Claro, et liberto de Laceio. Apud -Oxeneford. Anno ab incarnatione Domini M.C. XXXVI., set regni mei primo. - - - - - III. CHARTER OF HENRY II.[1096] - (CIRCA 1154.) - -Henricus Dei gracia rex anglie, dux Normannie et Aquitanie, et comes -Andegavie, omnibus comitibus, baronibus et fidelibus suis Francis et -Anglicis, salutem. Sciatis me, ad honorem Dei et sancte Ecclesie, et pro -communi emendacione tocius regni mei, concessisse et reddidisse et -presenti carta mea confirmasse Deo et sancte ecclesie et omnibus -comitibus et baronibus et omnibus hominibus meis omnes concessiones et -donaciones et libertates et liberas consuetudines, quas rex Henricus -avus meus eis dedit et concessit. Similiter eciam omnes malas -consuetudines, quas ipse delevit et remisit, ego remitto et deleri -concedo pro me et heredibus meis. Quare volo et firmiter precipio quod -sancta ecclesia et omnes comites et barones et omnes mei homines omnes -illas consuetudines et donaciones et libertates et liberas consuetudines -habeant et teneant libere et quiete, bene et in pace et integre, de me -et heredibus meis, sibi et heredibus suis, adeo libere et quiete et -plenarie in omnibus, sicut rex Henricus avus meus eis dedit et -concessit, et carta sua confirmavit. Teste Ricardo de Luci apud -Westmonasterium. - ------ - -Footnote 1096: - - The text is taken from that given in _Statutes of the Realm_, I. 4, - which is founded on a copy of the original preserved in the British - Museum (Cotton, Claudius D. II., _folio_ 107). Cf. Bémont, _Chartes_, - 12–14. - ------ - - - - - IV. THE SO-CALLED "UNKNOWN CHARTER OF - LIBERTIES" OF JOHN[1097] - ------ - -Footnote 1097: - - See _supra_, pp. 202-5 and Index. The text is founded upon that - published by Mr. J. H. Round in the _English Historical Review_, VIII. - 288, but effect has been given to most of the emendations suggested by - Mr. Hubert Hall and Mr. G. W. Prothero. Cf. _Ibid._, IX. 117 and 326. - The copy in the French Archives follows, on the same parchment, a copy - of the Charter of Liberties of Henry I. from which it is separated by - the following words (indicating the nature of both documents, the one - that had gone before and the other that was to follow): “Hec est Carta - Regis Henrici per quam barones querunt libertates et hec consequentia - concedit Rex Johannes.” Then follow twelve clauses which are here - numbered for convenience of reference, although no numbers appear in - the copy. - ------ - - (WHICH MAY, PERHAPS, BE IDENTIFIED WITH THE - SCHEDULE OF 27TH APRIL, 1215). - -1. Concedit Rex Johannes quod non capiet hominem absque judicio, nec -aliquid accipiet pro justitia, nec injustitiam faciet. - -2. Et si contingat quod meus baro vel homo meus moriatur et haeres suus -sit in aetate, terram suam debeo ei reddere per rectum releveium absque -magis capiendi. - -3. Et si ita sit quod haeres sit infra aetatem, debeo iiij^{or} -militibus de legalioribus feodi terram bajulare in custodia, et illi cum -meo famulo debent mihi reddere exitus terrae sine venditione nemorum et -sine redemptione hominum et sine destructione parci et vivarii; et tunc -quando ille haeres erit in aetate terram ei reddam quietam. - -4. Si foemina sit haeres terrae, debeo eam maritare, consilio generis -sui, ita non sit disparagiata. Et si una vice eam dedero, amplius eam -dare non possum, sed se maritabit ad libitum suum, sed non inimicis -meis. - -5. Si contingat quod baro aut homo meus moriatur, concedo ut pecunia sua -dividatur sicut ipse diviserit; et si praeoccupatus fuerit aut armis aut -infirmitate improvisa, uxor ejus, aut liberi, aut parentes et amici -propinquiores pro ejus anima dividant. - -6. Et uxor ejus non abibit de hospitio infra XL. dies et donec dotem -suam decenter habuerit, et maritagium habebit. - -7. Adhuc hominibus meis concedo ne eant in exercitu extra Angliam nisi -in Normanniam et in Britanniam et hoc decenter; quod si aliquis debet -inde servitium decem militum, consilio baronum meorum alleviabitur. - -8. Et si scutagium evenerit in terra, una marca argenti capietur de -feodi militis; et si gravamen exercitus contigerit, amplius caperetur -consilio baronum regni. - -9. Adhuc concedo ut omnes forestas quas pater meus et frater meus et ego -afforestaverimus, deafforesto. - -10. Adhuc concedo ut milites qui in antiquis forestis meis suum nemus -habent, habeant nemus amodo ad herbergagia sua et ad ardendum; et -habeant foresterium suum; et ego tantum modo unum qui servet pecudes -meas. - -11. Et si aliquis hominum meorum moriatur qui Judaeis debeat, debitum -non usurabit quamdiu haeres ejus sit infra aetatem. - -12. Et concedo ne homo perdat pro pecude vitam neque membra. - - - - - V. THE ARTICLES OF THE BARONS.[1098] - (1215.) - ------ - -Footnote 1098: - - The text is taken from that of the _Statutes of the Realm_, I. 7-8, - which is founded on the original in the British Museum. See _supra_, - 200–202. Cf. Bémont, _Chartes_, 15–23. - ------ - -_Ista sunt Capitula que Barones petunt et dominus Rex concedit._ - -1. Post decessum antecessorum heredes plene etatis habebunt hereditatem -suam per antiquum relevium exprimendum in carta. - -2. Heredes qui infra etatem sunt et fuerint in custodia, cum ad etatem -pervenerint, habebunt hereditatem suam sine relevio et fine. - -3. Custos terre heredis capiet rationabiles exitus, consuetudines, et -servitia, sine destructione et vasto hominum et rerum suarum, et si -custos terre fecerit destructionem et vastum, amittat custodiam; et -custos sustentabit domos, parcos, vivaria, stagna, molendina et cetera -ad terram illam pertinentia, de exitibus terre ejusdem; et ut heredes -ita maritentur ne disparagentur et per consilium propinquorum de -consanguinitate sua. - -4. Ne vidua det aliquid pro dote sua, vel maritagio, post decessum -mariti sui, sed maneat in domo sua per .xl. dies post mortem ipsius, et -infra terminum illum assignetur ei dos; et maritagium statim habeat et -hereditatem suam. - -5. Rex vel ballivus non saisiet terram aliquam pro debito dum catalla -debitoris sufficiunt; nec plegii debitoris distringantur, dum capitalis -debitor sufficit ad solutionem; si vero capitalis debitor defecerit in -solutione, si plegii voluerint, habeant terras debitoris, donec debitum -illud persolvatur plene, nisi capitalis debitor monstrare poterit se -esse inde quietum erga plegios. - -6. Rex non concedet alicui baroni quod capiat auxilium de liberis -hominibus suis, nisi ad corpus suum redimendum, et ad faciendum -primogenitum filium suum militem, et ad primogenitam filiam suam semel -maritandam, et hoc faciet per rationabile auxilium. - -7. Ne aliquis majus servitium faciat de feodo militis quam inde debetur. - -8. Ut communia placita non sequantur curiam domini regis, sed -assignentur in aliquo certo loco; et ut recognitiones capiantur in -eisdem comitatibus, in hunc modum: ut rex mittat duos justiciaros per -.iiii^{or}. vices in anno, qui cum .iiii^{or}. militibus ejusdem -comitatus electis per comitatum, capiant assisas de nova dissaisina, -morte antecessoris, et ultima presentatione, nec aliquis ob hoc sit -summonitus nisi juratores et due partes. - -9. Ut liber homo amercietur pro parvo delicto secundum modum delicti, -et, pro magno delicto, secundum magnitudinem, delicti, salvo -continemento suo; villanus etiam eodem modo amercietur, salvo waynagio -suo; et mercator eodem modo, salva marcandisa, per sacramentum proborum -hominum de visneto. - -10. Ut clericus amercietur de laico feodo suo secundum modum aliorum -predictorum, et non secundum beneficium ecclesiasticum. - -11. Ne aliqua villa amercietur pro pontibus faciendis ad riparias, nisi -ubi de jure antiquitus esse solebant. - -12. Ut mensura vini, bladi, et latitudines pannorum et rerum aliarum, -emendetur; et ita de ponderibus. - -13. Ut assise de nova dissaisina et de morte antecessoris abbrevientur; -et similiter de aliis assisis. - -14. Ut nullus vicecomes intromittat se de placitis ad coronam -pertinentibus sine coronatoribus; et ut comitatus et hundredi sint ad -antiquas firmas absque nullo incremento, exceptis dominicis maneriis -regis. - -15. Si aliquis tenens de rege moriatur, licebit vicecomiti vel alii -ballivo regis seisire et imbreviare catallum ipsius per visum legalium -hominum, ita tamen quod nichil inde amoveatur, donec plenius sciatur si -debeat aliquod liquidum debitum domino regi, et tunc debitum regis -persolvatur; residuum vero relinquatur executoribus ad faciendum -testamentum defuncti; et si nichil regi debetur, omnia catalla cedant -defuncto. - -16. Si aliquis liber homo intestatus decesserit, bona sua per manum -proximorum parentum suorum et amicorum et per visum ecclesie -distribuantur. - -17. Ne vidue distringantur ad se maritandum, dum voluerint sine marito -vivere, ita tamen quod securitatem facient quod non maritabunt se sine -assensu regis, si de rege teneant, vel dominorum suorum de quibus -tenent. - -18. Ne constabularius vel alius ballivus capiat blada vel alia catalla, -nisi statim denarios inde reddat, nisi respectum habere possit de -voluntate venditoris. - -19. Ne constabularius possit distringere aliquem militem ad dandum -denarios pro custodia castri, si voluerit facere custodiam illam in -propria persona vel per alium probum hominem, si ipse eam facere non -possit per rationabilem causam; et si rex eum duxerit in exercitum, sit -quietus de custodia secundum quantitatem temporis. - -20. Ne vicecomes, vel ballivus regis, vel aliquis alius, capiat equos -vel carettas alicujus liberi hominis pro cariagio faciendo, nisi ex -voluntate ipsius. - -21. Ne rex vel ballivus suus capiat alienum boscum ad castra vel ad alia -agenda sua, nisi per voluntatem ipsius cujus boscus ille fuerit. - -22. Ne rex teneat terram eorum qui fuerint convicti de felonia, nisi per -unum annum et unum diem, sed tunc reddatur domino feodi. - -23. Ut omnes kidelli de cetero penitus deponantur de Tamisia et Medeweye -et per totam Angliam. - -24. Ne breve quod vocatur “Precipe” de cetero fiat alicui de aliquo -tenemento unde liber homo amittat curiam suam. - -25. Si quis fuerit disseisitus vel prolongatus per regem sine juditio de -terris, libertatibus, et jure suo, statim ei restituatur; et si -contentio super hoc orta fuerit, tunc inde disponatur per juditium .xxv. -baronum, et ut illi qui fuerint dissaisiti per patrem vel fratrem regis, -rectum habeant sine dilatione per juditium parium suorum in curia regis; -et si rex debeat habere terminum aliorum cruce signatorum, tunc -archiepiscopus et episcopi faciant inde juditium ad certum diem, -appellatione remota. - -26. Ne aliquid detur pro brevi inquisitionis de vita vel membris, sed -libere concedatur sine pretio et non negetur. - -27. Si aliquis tenet de rege per feodi firmam, per sokagium, vel per -burgagium, et de alio per servitium militis, dominus rex non habebit -custodiam militum de feodo alterius, occasione burgagii vel sokagii, nec -debet habere custodiam burgagii, sokagii, vel feodi firme; et quod liber -homo non amittat militiam suam occasione parvarum sergantisarum, sicuti -de illis qui tenent aliquod tenementum reddendo inde cuttellos vel -sagittas vel hujusmodi. - -28. Ne aliquis ballivus possit ponere aliquem ad legem simplici loquela -sua sine testibus fidelibus. - -29. Ne corpus liberi hominis capiatur, nec imprisonetur, nec -dissaisietur, nec utlagetur, nec exuletur, nec aliquo modo destruatur, -nec rex eat vel mittat super eum vi, nisi per juditium parium suorum vel -per legem terre. - -30. Ne jus vendatur vel differratur vel vetitum sit. - -31. Quod mercatores habeant salvum ire et venire ad emendum vel -vendendum, sine omnibus malis toltis, per antiquas et rectas -consuetudines. - -32. Ne scutagium vel auxilium ponatur in regno, nisi per commune -consilium regni, nisi ad corpus regis redimendum, et primogenitum filium -suum militem faciendum, et filiam suam primogenitam semel maritandam; et -ad hoc fiat rationabile auxilium. Simili modo fiat de taillagiis et -auxiliis de civitate Londonie, et de aliis civitatibus que inde habent -libertates, et ut civitas Londonie plene habeat antiquas libertates et -liberas consuetudines suas, tam per aquas, quam per terras. - -33. Ut liceat unicuique exire de regno et redire, salva fide domini -regis, nisi tempore werre per aliquod breve tempus propter communem -utilitatem regni. - -34. Si quis mutuo aliquid acceperit a Judeis plus vel minus, et moriatur -antequam debitum illud solvatur, debitum non usurabit quamdiu heres -fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit -in manum regis, rex non capiet nisi catallum quod continetur in carta. - -35. Si quis moriatur et debitum debeat Judeis, uxor ejus habeat dotem -suam; et si liberi remanserint, provideantur eis necessaria secundum -tenementum; et de residuo solvatur debitum salvo servitio dominorum; -simili modo fiat de aliis debitis; et ut custos terre reddat heredi, cum -ad plenam etatem pervenerit, terram suam instauratam secundum quod -rationabiliter poterit sustinere de exitibus terre ejusdem de carucis et -wainnagiis. - -36. Si quis tenuerit de aliqua eskaeta, sicut de honore Walingeford, -Notingeham, Bononie, et Lankastrie, et de aliis eskaetis que sunt in -manu regis et sunt baronie, et obierit, heres ejus non dabit aliud -relevium, vel faciet regi aliud servitium quam faceret baroni; et ut rex -eodem modo eam teneat quo baro eam tenuit. - -37. Ut fines qui facti sunt pro dotibus, maritagiis, hereditatibus, et -amerciamentis, injuste et contra legem terre, omnino condonentur; vel -fiat inde per juditium, .xxv. baronum, vel per juditium majoris partis -eorumdem, una cum archiepiscopo et aliis quos secum vocare voluerit ita -quod, si aliquis vel aliqui de .xxv. fuerint in simili querela, -amoveantur et alii loco illorum per residuos de .xxv. substituantur. - -38. Quod obsides et carte reddantur, quae liberate fuerunt regi in -securitatem. - -39. Ut illi qui fuerint extra forestam non veniant coram justiciariis de -foresta per communes summonitiones, nisi sint in placito vel plegii -fuerint; et ut prave consuetudines de forestis et de forestariis, et -warenniis, et vicecomitibus, et rivariis, emendentur per .xii. milites -de quolibet comitatu, qui debent eligi per probos homines ejusdem -comitatus. - -40. Ut rex amoveat penitus de balliva parentes et totam sequelam Gerardi -de Atyes, quod de cetero balliam non habeant, scilicet Engelardum, -Andream, Petrum, et Gyonem de Cancellis, Gyonem de Cygony, Matheum de -Martiny, et fratres ejus; et Galfridum nepotem ejus et Philippum Mark. - -41. Et ut rex amoveat alienigenas, milites, stipendiarios, balistarios, -et ruttarios, et servientes qui veniunt cum equis et armis ad nocumentum -regni. - -42. Ut rex faciat justiciarios, constabularios, vicecomites, et -ballivos, de talibus qui sciant legem terre et eam bene velint -observare. - -43. Ut barones qui fundaverunt abbatias, unde habent cartas regum vel -antiquam tenuram, habeant custodiam earum cum vacaverint. - -44. Si rex Walenses dissaisierit vel elongaverit de terris vel -libertatibus, vel de rebus aliis in Anglia vel in Wallia, eis statim -sine placito reddantur; et si fuerint dissaisiti vel elongati de -tenementis suis Anglie per patrem vel fratrem regis sine juditio parium -suorum, rex eis sine dilatione justiciam exhibebit, eo modo quo exhibet -Anglicis justiciam de tenementis suis Anglie secundum legem Anglie, et -de tenementis Wallie secundum legem Wallie, et de tenementis Marchie -secundum legem Marchie; idem facient Walenses regi et suis. - - 45. Ut rex reddat filium Lewelini et } nisi aliter esse - preterea omnes obsides de Wallia, et } debeat per cartas - cartas que ei liberate fuerunt in } quas rex habet - securitatem pacis . . . } per juditium - 46. Ut rex faciat regi Scottorum de } archiepiscopi et - obsidibus reddendis, et de libertatibus } aliorum quos - suis, et jure suo, secundum formam } secum vocare - quam facit baronibus Anglie . . . . } voluerit. - -47. Et omnes foreste que sunt aforestate per regem tempore suo -deafforestentur, et ita fiat de ripariis que per ipsum regem sunt in -defenso. - -48. Omnes autem istas consuetudines et libertates quas rex concessit -regno tenendas quantum ad se pertinet erga suos, omnes de regno tam -clerici quam laici observabunt quantum ad se pertinet erga suos. - - [Here, there occurs a blank space in the original.] - -49. Hec est forma securitatis ad observandum pacem et libertates inter -regem et regnum. Barones eligent .xxv. barones de regno quos voluerint, -qui debent pro totis viribus suis observare, tenere et facere observari, -pacem et libertates quas dominus rex eis concessit et carta sua -confirmavit; ita videlicet quod si rex, vel justiciarius, vel ballivi -regis, vel aliquis de ministris suis, in aliquo erga aliquem deliquerit, -vel aliquem articulorum pacis aut securitatis transgressus fuerit, et -delictum ostensum fuerit .iiii^{or}. baronibus de praedictis .xxv. -baronibus, illi .iiii^{or}. barones accedent ad dominum regem, vel ad -justiciarium suum, si rex fuerit extra regnum; proponentes ei excessum, -petent ut excessum illum sine dilatione faciat emendari; et si rex vel -justiciarius ejus illud non emendaverit, si rex fuerit extra regnum, -infra rationabile tempus determinandum in carta, predicti .iiii^{or}. -referent causam illam ad residuos de illis .xxv. baronibus, et illi -.xxv. cum communa totius terre distringent et gravabunt regem modis -omnibus quibus poterunt, scilicet per captionem castrorum, terrarum, -possessionum, et aliis modis quibus poterunt, donec fuerit emendatum -secundum arbitrium eorum, salva persona domini regis et regine et -liberorum suorum; et cum fuerit emendatum, intendant domino regi sicut -prius. Et quicumque voluerit de terra jurabit se ad predicta exequenda -pariturum mandatis predictorum .xxv. baronum, et gravaturum regem pro -posse suo cum ipsis; et rex pubblice et libere dabit licentiam jurandi -cuilibet qui jurare voluerit, et nulli umquam jurare prohibebit. Omnes -autem illos de terra qui sponte sua et per se noluerint jurare .xxv. -baronibus de distringendo et gravando regem cum eis, rex faciet jurare -eosdem de mandato suo sicut predictum est. Item si aliquis de predictis -.xxv. baronibus decesserit, vel a terra recesserit, vel aliquo modo alio -impeditus fuerit quominus ista predicta possint exequi, qui residui -fuerint de .xxv. eligent alium loco ipsius pro arbitrio suo, qui simili -modo erit juratus quo et ceteri. In omnibus autem que istis .xxv. -baronibus committuntur exequenda, si forte ipsi .xxv. presentes fuerint -et inter se super re aliqua discordaverint, vel aliqui ex eis vocati -nolint vel nequeant interesse, ratum habebitur et firmum quod major pars -ex eis providerit vel preceperit, ac si omnes .xxv. in hoc -consensissent; et predicti .xxv. jurabunt quod omnia antedicta fideliter -observabunt et pro toto posse suo facient observari. Preterea rex faciet -eos securos per cartas archiepiscopi et episcoporum et magistri -Pandulfi, quod nichil impetrabit a domino papa per quod aliqua istarum -conventionum revocetur vel minuatur, et, si aliquid tale impetraverit, -reputetur irritum et inane et numquam eo utatur. - - - - - VI. WRITS SUPPLEMENTARY OF JOHN’S GREAT CHARTER. - -(1) _Writ to Stephen Harengod, dated 23rd June, 1215, announcing that - terms had been arranged_.[1099] - ------ - -Footnote 1099: - - The text follows that of _New Rymer_, I. 133, but has been collated - with _Rot. Pat._, I. 143 (17 John m. 23) and two corrections made. - This writ is here given as a specimen of many despatched during the - week following the truce at Runnymede, intimating that peace had been - made, and instructing release of hostages, etc. This writ is referred - to _supra_ 48 n. and 49 n. where its date is discussed. - ------ - -Rex Stephano Harengod etc., Sciatis quod firma pax facta est per Dei -gratiam inter nos et barones nostros die Veneris proximo post festum -Sancte Trinitatis apud Runemed., prope Stanes; ita quod eorum homagia -eodem die ibidem cepimus. Unde vobis mandamus firmiter precipientes quod -sicut nos et honorem nostrum diligitis et pacem regni nostri, ne -ulterius turbetur, quod nullum malum de cetero faciatis baronibus -nostris vel aliis, vel fieri permittatis, occasione discordie prius orte -inter nos et eos. Mandamus etiam vobis quod de finibus et tenseriis -nobis factis occasione illius discordie, si quid superest, reddendum, -nichil capiatis. Et si quid post illum diem Veneris cepistis, illud -statim reddatis. Et corpora prisonum et obsidum captorum et detentorum -occasione hujus guerre, vel finium vel tenseriarum predictarum, sine -dilatione deliberetis. Hec omnia predicta, sicut corpus vestrum -diligitis, faciatis. Et in hujus etc., nobis mittimus. Teste meipso apud -Runemed., xxiij. die Junii anno regni nostri xvij. - -(2) _Writ to Hugh de Bova, dated 23rd June, 1215, ordering disbandment - of mercenaries._[1100] - ------ - -Footnote 1100: - - See _supra_, p. 522. The text is given in _New Rymer_, I. 134, and in - _Rot. Pat._, I. 144 (17 John m. 23). - ------ - -Rex Hugoni de Bova, salutem. Mandamus vobis quod in fide qua nobis -tenemini non retineatis aliquem de militibus vel servientibus qui -fuerunt apud Dover., sed in patriam suam in pace sine dilatione ire -faciatis. Et in hujus, etc. Teste meipso apud Runimed. xxiij. die Junii -anno regni nostri xvij^{mo.} - -(3) _Writs issued to the sheriffs of counties on 19th June, 1215._[1101] - ------ - -Footnote 1101: - - See _supra_, pp. 50-51, 512–3 and 552. The text is taken from _Rot. - Pat._, I. 180 (17 John m. 23, d.). It will be found also in _New - Rymer_, I. 134, and in Stubbs _Sel. Chart._, 306–7. - ------ - -Rex vicecomiti, forestariis warennariis, custodibus ripariarum et -omnibus baillivis suis in eodem comitatu, salutem. Sciatis pacem firmam -esse reformatam per Dei gratiam inter nos et barones et liberos homines -regni nostri, sicut audire poteritis et videre per cartam nostram quam -inde fieri fecimus, quam etiam legi publice precepimus per totam -bailliam vestram et firmiter teneri; volentes et districte precipientes -quod tu vicecomes omnes de baillia tua secundum formam carte predicte -jurare facias xxv. baronibus de quibus mentio fit in carta predicta, ad -mandatum eorundem vel majoris partis eorum, coram ipsis vel illis quos -ad hoc atornaverint per litteras suas patentes, et ad diem et locum quos -ad hoc faciendum prefixerint predicti barones vel atornati ab eis ad -hoc. Volumus etiam et precipimus quod xii milites de comitatu tuo, qui -eligentur de ipso comitatu in primo comitatu qui tenebitur post -susceptionem litterarum istarum in partibus tuis, jurent de inquirendis -pravis consuetudinibus tam de vicecomitibus quam eorum ministris, -forestis, forestariis, warennis et warennariis, ripariis et earum -custodibus, et eis delendis, sicut in ipsa carta continetur. Vos igitur -omnes sicut nos et honorem nostrum diligitis, et pacem regni nostri, -omnia in carta contenta inviolabiliter observetis et ab omnibus -observari faciatis, ne pro defectu vestri, aut per excessum vestrum, -pacem regni nostri, quod Deus avertat, iterum turbari contingat. Et tu, -vicecomes, pacem nostram per totam bailliam tuam clamari facias et -firmiter teneri precipias. Et in hujus, etc. vobis mittimus. Teste me -ipso apud Runimede, xix. die Junii, anno regni nostri xvij^{mo.} - ------ - -Footnote 1102: - - See supra, p. 553. The text is given by _New Rymer_, I. 134, and in - _Rot. Pat._, I. 134 (17 John, m. 21). A French version appears in - D’Achery, _Spicilegium_, XII. 573, and in Bémont, _Chartes_, xxiv. n. - ------ - -(4) _Writs issued to the sheriffs of counties on 27th June, 1215._[1102] - -Rex vicecomiti Warewic. et duodecim militibus electis in eodem comitatu -ad inquirendum et delendum pravas consuetudines de vicecomitibus et -eorum ministris forestis et forestariis warennis et warennariis ripariis -et earum custodibus salutem. Mandamus vobis quod statim et sine -dilatione saisiatis in manum nostram terras et tenementa et catalla -omnium illorum de comitatu Warewic. qui jurare contradixerint viginti -quinque baronibus secundum formam contentam in carta nostra de -libertatibus vel eis quos ad hoc atornaverint. Et si jurare noluerint -statim post quindecim dies completos preterquam terre et tenementa et -catalla eorum in manu nostra saisita fuerint, omnia catalla sua vendi -faciatis et denarios inde preceptos salvo custodiatis, deputandos -subsidio terre sancte. Terras autem et tenementa eorum in manu nostra -teneatis, quousque juraverint. Et hoc provisum est per judicium domini -Cantuar. archiepiscopi et baronum regni nostri. Et in hujus etc. Teste -meipso, apud Winton. xxvij die Junii anno regni nostri xvij^{mo.} - - _Idem mandatum est omnibus vicecomitibus Anglie._ - -(5) _Conventio facta inter Regem Anglie et barones ejusdem regni._[1103] - ------ - -Footnote 1103: - - See _supra_, pp. 51-2 and 560-1. The text is taken from _New Rymer_, - I. 133 on the authority of _Rot. Claus._, 17 John, m. 27 d. It is - printed by Blackstone, _Great Charter_, 25–6. - ------ - -Hec est conventio facta inter dominum Johannem regem Anglie, ex una -parte, et Robertum filium Walteri, marescallum exercitus Dei et sancte -ecclesie in Anglia, et Ricardum comitem de Clare, Gaufridum comitem -Essex, et Glouc., Rogerum Bigot comitem Northfolc. et Suthfolc., Saherum -comitem Wint., Robertum comitem Oxon., Henricum comitem Hereford., et -barones subscriptos, scilicet Willielmum Mariscallum juniorem, -Eustachium de Vescy, Willielmum de Mobray, Johannem filium Roberti, -Rogerum de Monte Begonis, Willielmum de Lanvalay, et alios comites et -barones et liberos homines totius regni, ex altera parte, videlicet quod -ipsi comites et barones et alii prescripti tenebunt civitatem London, de -baillio domini regis, salvis interim domino regi firmis redditibus et -claris debitis suis, usque ad assumptionem beate Marie anno regni ipsius -regis xvii^{mo.} et dominus Cant. tenebit similiter de baillio domini -regis turrim London, usque ad predictum terminum, salvis civitati -London. libertatibus suis et liberis consuetudinibus suis, et salvo -cuilibet jure suo in custodia turris London., et ita quod interim non -ponat dominus rex munitionem vel vires alias in civitate predicta vel in -turri London. Fiant etiam infra predictum terminum sacramenta per totam -Angliam viginti quinque baronibus sicut continentur in carta de -libertatibus et securitate regno concessis vel attornatis viginti -quinque baronum sicut continentur in literis de duodecim militibus -eligendis ad delendum malas consuetudines de forestis et aliis. Et -preterea infra eundem terminum omnia que comites et barones et alii -liberi homines petunt a domino rege que ipse dixerit esse reddenda vel -que per xxv barones aut per majorem partem eorum judicata fuerint esse -reddenda reddantur secundum formam predicte carte. Et si hec facta -fuerint vel per dominum regem non steterit quominus ista facta fuerint -infra predictum terminum tunc civitas et turris London. ad eundem -terminum statim reddantur domino regi salvis predicte civitati -libertatibus suis et liberis consuetudinibus suis sicut prescriptum est. -Et si hec facta non fuerint et per dominum regem steterit quod ista non -fiant infra predictum terminum barones tenebunt civitatem predictam et -dominus archiepiscopus turrim London. donec predicta compleantur. Et -interim omnes ex utraque parte recuperabunt castra terras et villas quas -habuerunt in initio guerre orte inter dominum regem et barones. - -(6) _Protest by the Archbishops of Canterbury and Dublin, and other - prelates, that chapter 48 of the Great Charter was to be interpreted - by both sides as limited._[1104] - ------ - -Footnote 1104: - - See _supra_, pp. 52, 513, and 560. The protest is recorded in _Rot. - Claus._, 17 John, m. 27 d.; and is printed in _New Rymer_, I. 134. - ------ - -Omnibus Christi fidelibus ad quos presentes littere pervenerint, Sancti -Dei gracia, Cantuar. archiepiscopus, tocius Anglie primas et sancte -Romane ecclesie cardinalis et H. eadem gracia, archiepiscopus Dublin., -W. quoque London., P. Winton., J. Bathon et Glaston., H. Lincoln., W. -Wygorn., et W. Coventr., ejusdem gracie dono episcopi, salutem in -Domino. Cum dominus Rex concesserit et per cartam suam confirmaverit, -quod omnes male consuetudines de forestis, et forestariis et eorum -ministris, statim inquirantur in quolibet comitatu, per duodecim milites -juratos de eodem comitatu; qui debent eligi per probos homines ejusdem -comitatus; et infra xl. dies post inquisitionem factam penitus, ita quod -nunquam revocentur, deleantur per eosdem; dum tamen dominus Rex hoc -prius sciat; universitati vestre notum fieri volumus, quod articulus -iste ita intellectus fuit ex utraque parte, quum de eo tractabatur, et -expressus, quod omnes consuetudines ille remanere debent, sine quibus -foreste servari non possint: et hoc presentibus litteris protestamur. - -(7) _Protest by the Archbishops of Canterbury and Dublin and other - prelates that the barons who had renewed their homage at Runnymede - had repudiated their promise to ratify their oaths by formal - charters._[1105] - ------ - -Footnote 1105: - - See _supra_, 560. The protest is printed in _Rot. Pat._, I. 144 (17 m. - 21 d.), and also in _New Rymer_, I. 134. - ------ - -Omnibus Christi fidelibus etc. Stephanus, Dei gracia, Cantuar. -archiepiscopus, totius Anglie primas, et sancte Romane ecclesie -cardinalis Henricus Dublin archiepiscopus, Willielmus London., Petrus -Winton., Joscelinus Bathon, et Glaston., Hugo Lincoln., Walterus -Wigorn., Willielmus Conventr., Ricardus Cicestr., episcopi et magister -Pandulfus domini Pape subdiaconus et familiaris, salutem. Noverit -universitas vestra, quod quando facta fuit pax inter dominum regem -Johannem et barones Anglie, de discordia inter eos orta, idem barones -nobis presentibus et audientibus, promiserunt domino Regi, quod -quamcumque securitatem habere vellet ab eis de pace illa observanda, -ipsi ei habere facerent, preter castella et obsides. Postea vero quando -dominus Rex petiit ab eis, ut talem cartam ei facerent:— - - “Omnibus etc. Sciatis nos astrictos esse per sacramenta et homagia - domino nostro Johanni Regi Anglie, de fide ei servanda de vita et - membris et terreno honore suo, contra omnes homines qui vivere - possint et mori; et ad jura sua et heredum suorum, et ad regnum - suum custodiendum et defendendum.” - -Ipsi id facere noluerunt. Et in hujus rei testimonium id ipsum per hoc -scriptum protestamur. - - - - - VII. THE GREAT CHARTER OF HENRY III.[1106] - (SECOND REISSUE, 6TH NOVEMBER, 1217.) - ------ - -Footnote 1106: - - See _supra_, pp. 171-9. The text is taken from that of the _Statutes - of the Realm_, I. 17-19. - ------ - -Henricus Dei gratia rex Anglie, dominus Hibernie, dux Normannie, -Aquitanie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, -prioribus, comitibus, baronibus, vicecomitibus, prepositis, ministris et -omnibus ballivis et fidelibus suis presentem cartam inspecturis, -salutem. Sciatis quod intuitu Dei et pro salute anime nostre et animarum -antecessorum et successorum nostrorum, ad exaltationem sancte ecclesie -et emendationem regni nostri, concessimus et hac presenti carta -confirmavimus pro nobis et heredibus nostris in perpetuum, de consilio -venerabilis patris nostri domini Gualonis tituli Sancti Martini -presbiteri cardinalis et apostolice sedis legati, domini Walteri -Eboracensis archiepiscopi, Willelmi Londoniensis episcopi, et aliorum -episcoporum Anglie et Willelmi Mariscalli comitis Pembrocie, rectoris -nostri et regni nostri, et aliorum fidelium comitum et baronum nostrorum -Anglie, has libertates tenendas in regno nostro Anglie in perpetuum. - -1. In primis concessimus Deo et hac presenti carta nostra confirmavimus -pro nobis et heredibus nostris in perpetuum quod anglicana ecclesia -libera sit, et habeat jura sua integra et libertates suas illesas. -Concessimus etiam omnibus liberis hominibus regni nostri pro nobis et -heredibus nostris in perpetuum omnes libertates subscriptas, habendas et -tenendas eis et heredibus suis de nobis et heredibus nostris. - -2. Si quis comitum vel baronum nostrorum sive aliorum tenencium de nobis -in capite per servicium militare mortuus fuerit, et, cum decesserit, -heres ejus plene etatis fuerit et relevium debeat, habeat hereditatem -suam per antiquum relevium, scilicet heres vel heredes comitis de -baronia comitis integra per centum libras, heres vel heredes baronis de -baronia integra per centum libras, heres vel heredes militis de feodo -militis integro per centum solidos ad plus; et qui minus debuerit minus -det secundum antiquam consuetudinem feodorum. - -3. Si autem heres alicujus talium fuerit infra etatem, dominus ejus non -habeat custodiam ejus nec terre sue antequam homagium ejus ceperit; et, -postquam talis heres fuerit in custodia, cum ad etatem pervenerit, -scilicet viginti et unius anni, habeat hereditatem suam sine relevio et -sine fine, ita tamen quod, si ipse, dum infra etatem fuerit, fiat miles, -nichilominus terra remaneat in custodia dominorum suorum usque ad -terminum predictum. - -4. Custos terre hujusmodi heredis qui infra etatem fuerit non capiat de -terra heredis nisi rationabiles exitus et rationabiles consuetudines et -rationabilia servicia, et hoc sine destructione et vasto hominum vel -rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti -vel alicui alii qui de exitibus terre illius nobis debeat respondere, et -ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus -emendam, et terra committatur duobus legalibus et discretis hominibus de -feodo illo qui de exitibus nobis respondeant vel ei cui eos -assignaverimus; et si dederimus vel vendiderimus alicui custodiam -alicujus talis terre, et ille destructionem inde fecerit vel vastum, -amittat ipsam custodiam et tradatur duobus legalibus et discretis -hominibus de feodo illo qui similiter nobis respondeant, sicut predictum -est. - -5. Custos autem, quamdiu custodiam terre habuerit, sustentet domos, -parcos, vivaria, stagna, molendina et cetera ad terram illam pertinencia -de exitibus terre ejusdem, et reddat heredi, cum ad plenam etatem -pervenerit, terram suam totam instauratam de carucis et omnibus aliis -rebus, ad minus secundum quod illam recepit. Hec omnia observentur de -custodiis archiepiscopatuum, episcopatuum, abbatiarum, prioratuum, -ecclesiarum et dignitatum vacancium que ad nos pertinent, excepto quod -hujusmodi custodie vendi non debent. - -6. Heredes maritentur absque disparagatione. - -7. Vidua post mortem mariti sui statim et sine difficultate aliqua -habeat maritagium suum et hereditatem suam, nec aliquid det pro dote sua -vel pro maritagio suo vel pro hereditate sua, quam hereditatem maritus -suus et ipsa tenuerint die obitus ipsius mariti, et maneat in capitali -mesuagio mariti sui per quadraginta dies post obitum ipsius mariti sui, -infra quos assignetur ei dos sua, nisi prius ei fuerit assignata, vel -nisi domus ilia sit castrum; et si de castro recesserit, statim -provideatur ei domus competens in qua possit honeste morari, quousque -dos sua ei assignetur secundum quod predictum est, et habeat rationabile -estoverium suum interim de communi. Assignetur autem ei pro dote sua -tercia pars tocius terre mariti sui que sua fuit in vita sua, nisi de -minori dotata fuerit ad hostium ecclesie. - -8. Nulla vidua distringatur ad se maritandam, dum vivere voluerit sine -marito, ita tamen quod securitatem faciet quod se non maritabit sine -assensu nostro, si de nobis tenuerit, vel sine assensu domini sui, si de -alio tenuerit. - -9. Nos vero vel ballivi nostri non seisiemus terram aliquam nee redditum -pro debito aliquo quamdiu catalla debitoris presencia sufficiunt ad -debitum reddendum et ipse debitor paratus sit inde satisfacere; nee -plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor -sufficiat ad solutionem debiti; et, si capitalis debitor defecerit in -solutione debiti, non habens unde reddat aut reddere nolit cum possit, -plegii respondeant pro debito; et, si voluerint, habeant terras et -redditus debitoris quousque sit eis satisfactum de debito quod ante pro -eo solverint, nisi capitalis debitor monstraverit se inde esse quietum -versus eosdem plegios. - -10. Civitas Londonie habeat omnes antiquas libertates et liberas -consuetudines suas. Preterea volumus et concedimus quod omnes alie -civitates, et burgi, et ville, et barones de quinque portubus, et omnes -portus, habeant omnes libertates et liberas consuetudines suas. - -11. Nullus distringatur ad faciendum majus servicium de feodo militis -nec de alio libero tenemento quam inde debetur. - -12. Communia placita non sequantur curiam nostram, set teneantur in -aliquo loco certo. - -13. Recognitiones de nova disseisina et de morte antecessoris non -capiantur nisi in suis comitatibus, et hoc modo: nos, vel si extra -regnum fuerimus, capitalis justiciarius noster, mittemus justiciarios -per unumquemque comitatum semel in anno, qui cum militibus comitatuum -capiant in comitatibus assisas predictas. - -14. Et ea que in illo adventu suo in comitatu per justiciarios predictos -ad dictas assisas capiendas missos terminari non possunt, per eosdem -terminentur alibi in itinere suo; et ea que per eosdem propter -difficultatem aliquorum articulorum terminari non possunt, referantur ad -justiciarios nostros de banco, et ibi terminentur. - -15. Assise de ultima presentatione semper capiantur coram justiciariis -nostris de banco et ibi terminentur. - -16. Liber homo non amercietur pro parvo delicto nisi secundum modum -ipsius delicti, et pro magno delicto, secundum magnitudinem delicti, -salvo contenemento suo; et mercator eodem modo salva mercandisa sua; et -villanus alterius quam noster eodem modo amercietur salvo wainagio suo, -si incident in misericordiam nostram: et nulla predictarum -misericordiarum ponatur nisi per sacramenta proborum et legalium hominum -de visneto. - -17. Comites et barones non amercientur nisi per pares suos, et non nisi -secundum modum delicti. - -18. Nulla ecclesiastica persona amercietur secundum quantitatem -beneficii sui ecclesiastici, sed secundum laicum tenementum suum, et -secundum quantitatem delicti. - -19. Nec villa, nec homo, distringatur facere pontes ad riparias nisi qui -ex antiquo et de jure facere debet. - -20. Nulla riparia decetero defendatur, nisi ille que fuerunt in defenso -tempore regis Henrici avi nostri, per eadem loca et eosdem terminos -sicut esse consueverunt tempore suo. - -21. Nullus vicecomes, constabularius, coronatores vel alii ballivi -nostri teneant placita corone nostre. - -22. Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel -ballivus noster ostendat litteras nostras patentes de summonitione -nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel -ballivo nostro attachiare et inbreviare catalla defuncti inventa in -laico feodo ad valenciam illius debiti per visum legalium hominum, ita -tamen quod nichil inde amoveatur donec persolvatur nobis debitum quod -clarum fuerit, et residuum relinquatur executoribus ad faciendum -testamentum defuncti; et si nichil nobis debeatur ab ipso, omnia catalla -cedant defuncto, salvis uxori ipsius rationabilibus partibus suis. - -23. Nullus constabularius vel ejus ballivus capiat blada vel alia -catalla alicujus qui non sit de villa ubi castrum situm est, nisi statim -inde reddat denarios aut respectum inde habere possit de voluntate -venditoris; si autem de villa ipsa fuerit, infra quadraginta dies -precium reddat. - -24. Nullus constabularius distringat aliquem militem ad dandum denarios -pro custodia castri, si ipse eam facere voluerit in propria persona sua, -vel per alium probum hominem, si ipse eam facere non possit propter -rationabilem causam, et, si nos duxerimus eum vel miserimus in -exercitum, erit quietus de custodia secundum quantitatem temporis quo -per nos fuerit in exercitu de feodo pro quo fecit servicium in exercitu. - -25. Nullus vicecomes, vel ballivus noster, vel alius capiat equos vel -carettas alicujus pro cariagio faciendo, nisi reddat liberationem -antiquitus statutam, scilicet pro caretta ad duos equos decem denarios -per diem, et pro caretta ad tres equos quatuordecim denarios per diem. - -26. Nulla caretta dominica alicujus ecclesiastice persone vel militis -vel alicujus domine capiatur per ballivos predictos. - -27. Nec nos nec ballivi nostri nec alii capiemus alienum boscum ad -castra vel alia agenda nostra, nisi per voluntatem illius cujus boscus -ille fuerit. - -28. Nos non tenebimus terras eorum qui convicti fuerint de felonia, nisi -per unum annum et unum diem; et tunc reddantur terre dominis feodorum. - -29. Omnes kidelli decetero deponantur penitus per Tamisiam et Medeweiam -et per totam Angliam, nisi per costeram maris. - -30. Breve quod vocatur Precipe decetero non fiat alicui de aliquo -tenemento, unde liber homo perdat curiam suam. - -31. Una mensura vini sit per totum regnum nostrum, et una mensura -cervisie, et una mensura bladi, scilicet quarterium Londonie, et una -latitudo pannorum tinctorum et russettorum et haubergettorum, scilicet -due ulne infra listas; de ponderibus vero sit ut de mensuris. - -32. Nichil detur de cetero pro brevi inquisitionis ab eo qui -inquisitionem petit de vita vel membris, set gratis concedatur et non -negetur. - -33. Si aliquis teneat de nobis per feodifirmam vel soccagium, vel per -burgagium, et de alio terram teneat per servicium militare, nos non -habebimus custodiam heredis nee terre sue que est de feodo alterius, -occasione illius feodifirme, vel soccagii, vel burgagii, nec habebimus -custodiam illius feodifirme vel soccagii vel burgagii, nisi ipsa -feodifirma debeat servicium militare. N os non habebimus custodiam -heredis vel terre alicujus quam tenet de alio per servicium militare, -occasione alicujus parve serjanterie quam tenet de nobis per servicium -reddendi nobis cultellos, vel sagittas, vel hujusmodi. - -34. Nullus ballivus ponat decetero aliquem ad legem manifestam vel ad -juramentum simplici loquela sua, sine testibus fidelibus ad hoc -inductis. - -35. Nullus liber homo decetero capiatur vel inprisonetur aut -disseisiatur de aliquo libero tenemento suo vel libertatibus vel liberis -consuetudinibus suis, aut utlagetur, aut exulet, aut aliquo alio modo -destruatur, nec super eum ibimus, nec super eum mittemus, nisi per -legale judicium parium suorum, vel per legem terre. - -36. Nulli vendemus, nulli negabimus aut differemus rectum vel justiciam. - -37. Omnes mercatores, nisi publice antea prohibiti fuerint, habeant -salvum et securum exire de Anglia, et venire in Angliam, et morari, et -ire per Angliam tarn per terram quam per aquam ad emendum vel vendendum -sine omnibus toltis malis per antiquas et rectas consuetudines, -preterquam in tempore gwerre, et si sint de terra contra nos gwerrina; -et si tales inveniantur in terra nostra in principio gwerre, -attachientur sine dampno corporum vel rerum, donee sciatur a nobis vel a -capitali justiciario nostro quomodo mercatores terre nostre tractentur, -qui tunc invenientur in terra contra nos gwerrina; et, si nostri salvi -sint ibi, alii salvi sint in terra nostra. - -38. Si quis tenuerit de aliqua escaeta, sicut de honore Wallingefordie, -Bolonie, Notingeham, Lancastrie, vel de aliis que sunt in manu nostra, -et sint baronie, et obierit, heres ejus non det aliud relevium nec -faciat nobis aliud servicium quam faceret baroni, si ilia esset in manu -baronis; et nos eodem modo eam tenebimus quo baro eam tenuit; nec nos, -occasione tabs baronie vel escaete, habebimus aliquam escaetam vel -custodiam aliquorum hominum nostrorum, nisi alibi tenuerit de nobis in -capite ille qui tenuit baroniam vel escaetam. - -39. Nullus liber homo decetero det amplius alicui vel vendat de terra -sua quam ut de residuo terre sue possit sufficienter fieri domino feodi -servicium ei debitum quod pertinet ad feodum illud. - -40. Omnes patroni abbatiarum qui habent cartas regum Anglie de -advocatione, vel antiquam tenuram vel possessionem, habeant earum -custodiam cum vacaverint, sicut habere debent, et sicut supra declaratum -est. - -41. Nullus capiatur vel imprisonetur propter appellum femine de morte -alterius quam viri sui. - -42. Nullus comitatus decetero teneatur, nisi de mense in mensem; et, ubi -major terminus esse solebat, major sit. Nec aliquis vicecomes vel -ballivus faciat turnum suum per hundredum nisi bis in anno et non nisi -in loco debito et consueto, videlicet semel post Pascha et iterum post -festum sancti Michaelis. Et visus de franco plegio tunc fiat ad ilium -terminum sancti Michaelis sine occasione, ita scilicet quod quilibet -habeat libertates suas quas habuit et habere consuevit tempore regis -Henrici avi nostri, vel quas postea perquisivit. Fiat autem visus de -franco plegio sic, videlicet quod pax nostra teneatur, et quod tethinga -integra sit sicut esse consuevit, et quod vicecomes non querat -occasiones, et quod contentus sit eo quod vicecomes habere consuevit de -visu suo faciendo tempore regis Henrici avi nostri. - -43. Non liceat alicui decetero dare terram suam alicui domui religiose, -ita quod eam resumat tenendam de eadem domo, nec liceat alicui domui -religiose terram alicujus sic accipere quod tradat eam illi a quo ipsam -receperit tenendam. Si quis autem de cetero terram suam alicui domui -religiose sic dederit, et super hoc convincatur, donum suum penitus -cassetur, et terra illa domino suo illius feodi incurratur. - -44. Scutagium decetero capiatur sicut capi consuevit tempore regis -Henrici avi nostri. - -45. Omnes autem istas consuetudines predictas et libertates quas -concessimus in regno nostro tenendas quantum ad nos pertinet erga -nostros, omnes de regno nostro tam clerici quam laici observent quantum -ad se pertinet erga suos. - -46. Salvis archiepiscopis, episcopis, abbatibus, prioribus, templariis, -hospitalariis, comitibus, baronibus et omnibus aliis tam ecclesiasticis -personis quam secularibus, libertatibus et liberis consuetudinibus quas -prius habuerunt. - -47. Statuimus etiam, de communi consilio tocius regni nostri, quod omnia -castra adulterina, videlicet ea que a principio guerre mote inter -dominum Johannem patrem nostrum et barones suos Anglie constructa -fuerint vel reedificata, statim diruantur. Quia vero nondum habuimus -sigillum hanc [cartam] sigillis domini legati predicti et comitis -Willelmi Mariscalli rectoris [nostri] et regni nostri fecimus sigillari. - - - - - VIII. CARTA DE FORESTA.[1107] - (6 NOVEMBER, 1217.) - ------ - -Footnote 1107: - - See _supra_, pp. 171-2. The text is taken from that of the _Statutes - of the Realm_, I. 20-21. - ------ - -Henricus Dei gratia rex Anglie, dominus Hibernie, dux Normannie, -Aquitanie et comes Andegavie, archiepiscopis, episcopis, abbatibus, -prioribus, comitibus, baronibus, justiciariis, forestariis, -vicecomitibus, prepositis, ministris, et omnibus ballivis et fidelibus -suis, salutem. Sciatis quod, intuitu Dei et pro salute anime nostre et -animarum antecessorum et successorum nostrorum, ad exaltacionem Sancte -Ecclesie et emendacionem regni nostri, concessimus et hac presenti carta -confirmavimus pro nobis et heredibus nostris in perpetuum, de consilio -venerabilis patris nostri domini Gualonis tituli sancti Martini -presbiteri cardinalis et apostolice sedis legati, domini Walteri -Eboracensis archiepiscopi, Willelmi Londoniensis episcopi, et aliorum -episcoporum Anglie, et Willelmi Marescalli comitis Penbrocie, rectoris -nostri et regni nostri, et aliorum fidelium comitum et baronum nostrorum -Anglie, has libertates subscriptas tenendas in regno nostro Anglie, in -perpetuum: - -1. In primis omnes foreste quas Henricus rex avus noster afforestavit -videantur per bonos et legales homines et, si boscum aliquem alium quam -suum dominicum afforestaverit ad dampnum illius cujus boscus fuerit, -deafforestentur. Et si boscum suum proprium afforestaverit, remaneat -foresta, salva communa de herbagio et aliis in eadem foresta, illis qui -eam prius habere consueverunt. - -2. Homines qui manent extra forestam non veniant decetero coram -justiciariis nostris de foresta per communes summoniciones, nisi sint in -placito, vel plegii alicujus vel aliquorum qui attachiati sunt propter -forestam. - -3. Omnes autem bosci qui fuerunt afforestati per regem Ricardum -avunculum nostrum, vel per regem Johannem patrem nostrum usque ad primam -coronacionem nostram, statim deafforestentur, nisi fuerit dominicus -boscus noster. - -4. Archiepiscopi, episcopi, abbates, priores, comites et barones et -milites et libere tenentes, qui boscos suos habent in forestis, habeant -boscos suos sicut eos habuerunt tempore prime coronacionis predicti -regis Henrici avi nostri, ita quod quieti sint in perpetuum de omnibus -purpresturis, vastis et assartis factis in illis boscis, post illud -tempus usque ad principium secundi anni coronacionis nostre. Et qui de -cetero vastum, purpresturam, vel assartum sine licencia nostra in illis -fecerint, de vastis et assartis respondeant. - -5. Reguardores nostri eant per forestas ad faciendum reguardum sicut -fieri consuevit tempore prime coronacionis predicti regis Henrici avi -nostri, et non aliter. - -6. Inquisicio, vel visus de expeditacione canum existencium in foresta, -decetero fiat quando debet fieri reguardum, scilicet de tercio anno in -tercium annum; et tunc fiat per visum et testimonium legalium hominum et -non aliter. Et ille, cujus canis inventus fuerit tunc non expeditatus, -det pro misericordia tres solidos; et de cetero nullus bos capiatur pro -expeditacione. Talis autem sit expeditacio per assisam communiter quod -tres ortilli abscidantur sine pelota de pede anteriori; nec expeditentur -canes de cetero, nisi in locis ubi consueverunt expeditari tempore prime -coronacionis regis Henrici avi nostri. - -7. Nullus forestarius vel bedellus decetero faciat scotale, vel colligat -garbas, vel avenam, vel bladum aliud, vel agnos, vel porcellos, nec -aliquam collectam faciant; et per visum et sacramentum duodecim -reguardorum quando facient reguardum, tot forestarii ponantur ad -forestas custodiendas, quot ad illas custodiendas rationabiliter -viderint sufficere. - -8. Nullum suanimotum de cetero teneatur in regno nostro nisi ter in -anno; videlicet in principio quindecim dierum ante festum Sancti -Michaelis, quando agistatores conveniunt ad agistandum dominicos boscos -nostros; et circa festum Sancti Martini quando agistatores nostri debent -recipere pannagium nostrum; et ad ista duo suanimota conveniant -forestarii, viridarii, et agistatores, et nullus alius per -districtionem; et tercium suanimotum teneatur in inicio quindecim dierum -ante festum Sancti Johannis Baptiste, pro feonacione bestiarum -nostrarum; et ad istud suanimotum tenendum convenient forestarii et -viridarii et nulli alii per districtionem. Et preterea singulis -quadraginta diebus per totum annum conveniant viridarii et forestarii ad -videndum attachiamenta de foresta, tam de viridi, quam de venacione, per -presentacionem ipsorum forestariorum, et coram ipsis attachiatis. -Predicta autem suanimota non teneantur nisi in comitatibus in quibus -teneri consueverunt. - -9. Unusquisque liber homo agistet boscum suum in foresta pro voluntate -sua et habeat pannagium suum. Concedimus eciam quod unusquisque liber -homo possit ducere porcos suos per dominicum boscum nostrum, libere et -sine inpedimento, ad agistandum eos in boscis suis propriis, vel alibi -ubi voluerit. Et si porci alicujus liberi hominis una nocte -pernoctaverint in foresta nostra, non inde occasionetur ita quod aliquid -de suo perdat. - -10. Nullus de cetero amittat vitam vel menbra pro venacione nostra; set, -si aliquis captus fuerit et convictus de capcione venacionis, graviter -redimatur, si habeat unde redimi possit; et si non habeat unde redimi -possit, jaceat in prisona nostra per unum annum et unum diem; et, si -post unum annum et unum diem plegios invenire possit, exeat a prisona; -sin autem, adjuret regnum Anglie. - -11. Quicunque archiepiscopus, episcopus, comes vel baro transient per -forestam nostram, liceat ei capere unam vel duas bestias per visum -forestarii, si presens fuerit; sin autem, faciat cornari, ne videatur -furtive hoc facere. - -12. Unusquisque liber homo decetero sine occasione faciat in bosco suo, -vel in terra sua quam habeat in foresta, molendinum, vivarium, stagnum, -marleram, fossatum, vel terram arabilem extra cooperatum in terra -arabili, ita quod non sit ad nocumentum alicujus vicini. - -13. Unusquisque liber homo habeat in boscis suis aereas, ancipitrum et -spervariorum et falconum, aquilarum, et de heyrinis et habeat similiter -mel quod inventum fuerit in boscis suis. - -14. Nullus forestarius de cetero, qui non sit forestarius de feudo -reddens nobis firmam pro balliva sua, capiat chiminagium aliquod in -balliva sua; forestarius autem de feudo firmam nobis reddens pro balliva -sua capiat chiminagium, videlicet pro careta per dimidium annum duos -denarios, et per alium dimidium annum duos denarios, et pro equo qui -portat sumagium per dimidium annum unum obolum, et per alium dimidium -annum obolum, et non nisi de illis qui de extra ballivam suam, tanquam -mercatores, veniunt per licenciam suam in ballivam suam ad buscam, -meremium, corticem vel carbonem emendum, et alias ducendum ad vendendum -ubi voluerint: et de nulla alia careta vel sumagio aliquod chiminagium -capiatur: et non capiatur chiminagium nisi in locis illis ubi antiquitus -capi solebat et debuit. Illi autem qui portant super dorsum suum buscam, -corticem, vel carbonem, ad vendendum, quamvis inde vivant, nullum de -cetero dent chiminagium. De boscis autem aliorum nullum detur -chiminagium forestariis nostris, preterquam de dominicis boscis nostris. - -15. Omnes utlagati pro foresta tantum a tempore regis Henrici avi nostri -usque ad primam coronacionem nostram, veniant ad pacem nostram sine -inpedimento, et salvos plegios inveniant quod de cetero non forisfaciant -nobis de foresta nostra. - -16. Nullus castellanus vel alius ten eat placita de foresta sive de -viridi sive de venacione, sed quilibet forestarius de feudo attachiet -placita de foresta tam de viridi quam de venacione, et ea presentet -viridariis provinciarum et cum irrotulata fuerint et sub sigillis -viridariorum inclusa, presententur capitali forestario cum in partes -illas venerit ad tenendum placita foreste, et coram eo terminentur. - -17. Has autem libertates de forestis concessimus omnibus, salvis -archiepiscopis, episcopis, abbatibus, prioribus, comitibus, baronibus, -militibus et aliis tam personis ecclesiasticis quam secularibus, -Templariis et Hospitalariis, libertatibus et liberis consuetudinibus in -forestis et extra, in warennis et aliis, quas prius habuerunt. Omnes -autem istas consuetudines predictas et libertates, quas concessimus in -regno nostro tenendas quantum ad nos pertinet erga nostros, omnes de -regno nostro tam clerici quam laici observent quantum ad se pertinet -erga suos. Quia vero sigillum nondum habuimus, presentem cartam sigillis -venerabilis patris nostri domini Gualonis tituli Sancti Martini -presbiteri cardinalis, apostolice sedis legati, et Willelmi Marescalli -comitis Penbrok, rectoris nostri et regni nostri, fecimus sigillari. -Testibus prenominatis et aliis multis. Datum per manus predictorum -domini legati et Willelmi Marescalli apud Sanctum Paulum Londonie, sexto -die Novembris, anno regni nostri secundo. - - SELECT BIBLIOGRAPHY AND LIST OF AUTHORITIES REFERRED TO. - - I. COMMENTARIES AND OTHER WORKS ON MAGNA CARTA - (CHRONOLOGICALLY ARRANGED). - - 1. _The Mirror of Justices_, edited by William Joseph Whittaker (Selden - Society); 1895. - 2. Edward Coke, _Second Institute_, 1641; 17th edition, 1817. - 3. Edward Cooke, _Magna Charta made in the ninth year of King Henry - III. and confirmed by King Edward I. in the twentieth year of his - reign_; 1684. - 4. William Blackstone, _The Great Charter and Charter of the Forest, to - which is prefixed the History of the Charters_; 1759. - 5. Daines Barrington, _Observations upon the Statutes from Magna Charta - to 21 James I._; 1766. - 6. Francis Stoughton Sullivan, _An Historical Treatise on the Feudal - Law, with a Commentary on Magna Charta_; 1772. - 7. Richard Thomson, _An Historical Essay on the Magna Charta of King - John_; 1829. - 8. Thaddaeus Lau, _Die Entstehungsgeschichte der Magna Charta_; 1856. - 9. Charles Bémont, _Chartes des Libertés Anglaises_; 1892. - 10. Boyd C. Barrington, _The Magna Charta and other Great Charters of - England_; 1900. - 11. Elemér Hantos, _The Magna Carta of the English and of the Hungarian - Constitution_; 1904. - - II. CHRONICLES AND ANNALS. - - 1. _Annals of Dunstable_, edited by Henry Richards Luard (Rolls - Series); 1866. - 2. _Annals of Waverley_, edited by Henry Richards Luard (Rolls Series); - 1865. - 3. Benedict Abbot, _Gesta Regis Henrici Secundi_, edited by William - Stubbs (Rolls Series); 1867. - 4. Jocelyn of Brakelond, _Chronica de rebus gestis Samsonis Abbatis - Monasterii Sancti Edmundi_, edited by John Gage Rokewode (Camden - Society); 1840. - 5. Matthew Paris, _Chronica Majora_, edited by Henry Richards Luard - (Rolls Series); 1872. - 6. _Memorials of St. Dunstan_, edited by William Stubbs (Bulls Series); - 1874. - 7. Ralph of Coggeshall, _Chronicon Anglicanum_, edited by Joseph - Stevenson (Rolls Series); 1875. - 8. Roger of Hoveden, _Chronica_, edited by William Stubbs (Rolls - Series); 1868-1871. - 9. Roger of Wendover, _Chronica sive Flores Historiarum_, edited by - Henry Octavius Coxe (Eng. Hist. Society); 1841. - 10. Walter of Coventry, _Memoriale_, edited by William Stubbs (Rolls - Series); 1872. - 11. Walter of Hemingburgh, _Chronicon de Gestis Regum Angliae_, edited - by Hans Claude Hamilton (Eng. Hist. Society); 1848-9. - 12. William of Malmesbury, _Gesta Regum Anglorum_, edited by William - Stubbs (Rolls Series); 1887-9. - - III. COLLECTIONS OF STATUTES, CHARTERS, AND TREATIES. - - 1. _Statutes of the Realm_ (Record Commission); 1810-28. - 2. _Statutes at Large._ - 3. _Acts of the Parliament of Scotland from 1124 to 1707_, edited by - Thomas Thomson and Cosmo Innes; 1814-75. - 4. _Rotuli Litterarum Clausarum in Turri Londinensi Asservata_, edited - by Thomas Duffus Hardy (Record Commission); 1833. - 5. _Rotuli Litterarum Patentum in Turri Londinensi Asservata_, edited - by Thomas Duffus Hardy (Record Commission); 1835. - 6. _Rotuli Chartarum in Turri Londinensi Asservata_, edited by Thomas - Duffus Hardy (Record Commission); 1837. - 7. _Rotuli de Oblatis et Finibus_, edited by Thomas Duffus Hardy - (Record Commission); 1835-6. - 8. _Rotuli Parliamentorum_; 1832. - 9. _Rotuli Hundredorum_ (Record Commission); 1812-18. - 10. _Testa de Neville sive Liber Feodorum_ (Record Commission); 1807. - 11. _The Red Book of the Exchequer_, edited by Hubert Hall (Rolls - Series); 1896. - 12. _Munimenta Gildhallae Londoniensis: Liber Albus, Liber Custumarum - et Liber Horn_, edited by Henry Thomas Riley (Rolls Series); 1859-62. - 13. Thomas Rymer, _Foedera, Conventiones, Litterae, et cujuscunque - generis acta publica_; 4th edition (Record Commission); 1816-69 - (referred to throughout as “New Rymer”). - 14. _Ancient Charters, Royal and Private_, edited by John Horace Round - (Pipe Roll Society, vol. 10); 1888. - 15. Jean Luc D’Achery, _Vetorum Scriptorum Spicilegium_; 1655-77. - 16. _Hemingi Chartularum Ecclesiae Wigornensis_, edited by Thomas - Hearne; 1723. - 17. August Potthast, _Regesta Pontificum Romanorum_; 1874-5. - 18. Alexandre Teulet, _Layettes du Trésor_; 1863. - 19. William Stubbs, _Select Charters and other Illustrations of English - Constitutional History_; 7th edition, 1890. - 20. George Walter Prothero, _Select Statutes and other Constitutional - Documents illustrative of the reigns of Elizabeth and James I._; - 1894. - 21. Samuel Rawson Gardiner, _The Constitutional Documents of the - Puritan Revolution_; 1889. - 22. Walter de Gray Birch, _Historical Charters and Constitutional - Documents of the City of London_; 1887. - - IV. COLLECTIONS OF PLEAS, TRIALS, AND OTHER RECORD EVIDENCE. - - 1. _Placitorum Abbreviatio_, Richard I. to Edward II. (Record - Commission); 1811. - 2. Melville Madison Bigelow, _Placita Anglo-Normannica_; 1879. - 3. _Bracton’s Note Book: a Collection of Cases_, edited by Frederic - William Maitland; 1887. - 4. Thomas Bayly Howell and Thomas Jones Howell, _Complete Collection of - State Trials_; 1809-28 (referred to as “State Trials”). - 5. _Select Pleas of the Crown_, edited by Frederic William Maitland - (Selden Society); 1888. - 6. _Select Pleas in Manorial and other Seignorial Courts_, edited by - Frederic William Maitland (Selden Society); 1889. - 7. _Select Pleas of the Forest_, edited by George James Turner (Selden - Society); 1901. - 8. _Select Pleas, Starrs, and other Records from the Rolls of the - Exchequer of the Jews_, edited by James McMullen Rigg (Selden - Society); 1902. - 9. _Year Books of the Reign of Edward I._, edited by Alfred John - Horwood and Luke Owen Pike (Rolls Series); 1863-1901. - 10. _Year Books of Edward II._, 1307–1309, edited by Frederic William - Maitland (Selden Society); 1903. - 11. _Great Roll of the Pipe for the Twelfth Year of Henry II._ (Pipe - Roll Society, vol. 9); 1888. - 12. Thomas Madox, _History and Antiquities of the Exchequer of the - Kings of England_; 2nd edition, 1769 (referred to throughout as - “Madox”). - 13. Thomas Madox, _Firma Burgi_; 1726. - 14. Thomas Madox, _Baronia Anglica_; 1741. - - V. LEGAL TREATISES—MEDIEVAL. - - 1. Ranulf Glanvill, _Tractatus de Legibus et Consuetudinibus Regni - Angliae_. - 2. Richard, son of Nigel, _De necessariis Observantibus Scaccarii - Dialogus_ (commonly called _Dialogus de Scaccario_), edited by Arthur - Hughes, C. G. Crump, and C. Johnson; 1902. - 3. Henry de Bracton, _De legibus et consuetudinibus Angliae_, edited by - Sir Travers Twiss (Rolls Series); 1878-83. - 4. Fleta, _Commentarius Juris Anglicani_; edition of 1647. - 5. Thomas Littleton, _Treatise of Tenures_; edition of 1841. - - VI. LEGAL TREATISES—MODERN. - - 1. William Reynell Anson, _The Law and Custom of the Constitution_; 2nd - edition, 1892. - 2. William Blackstone, _Commentaries on the Laws of England_; edition - of 1826. - 3. Edward Coke, _Institutes of the Laws of England_; 17th edition, - 1817. (The _First Institute_ is generally referred to as “Coke on - Littleton.”) - 4. _Encyclopaedia of the Laws of England_, edited by Alexander Wood - Renton; 1897-8. - 5. Matthew Hale, _Historia Placitorum Coronae_; 1736. - 6. Edward Jenks, _Modern Land Law_; 1899. - 7. John Manwood, _A Treatise and Discourse of the Laws of the Forest_; - 1598. - 8. Henry John Stephen, _Commentaries on the Laws of England_; 13th - edition, 1899. - 9. James Bradley Thayer, _A Preliminary Treatise on Evidence at the - Common Law_; 1898. - - VII. LEGAL AND CONSTITUTIONAL HISTORIES. - - 1. Melville Madison Bigelow, _History of Procedure in England_; 1880. - 2. Heinrich Brunner, _Die Entstehung der Schwurgerichte_; 1871. - 3. Edward Creasy, _Progress of the English Constitution_; 1874. - 4. Rudolf Gneist, _The History of the English Constitution_, translated - by Philip A. Ashworth; edition of 1891. - 5. Rudolf Gneist, _The English Parliament in its Transformations - through a Thousand Years_, translated by A. H. Keane; 1887. - 6. William Searle Holdsworth, _A History of English Law_, vol. 1; 1903. - 7. Dudley Julius Medley, _A Student’s Manual of English Constitutional - History_; 2nd edition, 1898. - 8. Stuart Archibald Moore and Hubert Stuart Moore, _The History and Law - of Fisheries_; 1903. - 9. Frederic Pollock and Frederic William Maitland, _The History of - English Law before the time of Edward I._; 1st edition, 1895 - (referred to throughout as “Pollock and Maitland”). - 10. Luke Owen Pike, _A Constitutional History of the House of Lords, - from original sources_; 1894. - 11. John Reeves, _History of English Law_; 3rd edition, 1783–4. - 12. James Fitzjames Stephen, _A History of the Criminal Law in - England_; 1893. - 13. William Stubbs, _The Constitutional History of England in its - Origin and Development_: (_a_) vol. 1, 6th edition, 1897; (_b_) vol. - 2, 4th edition, 1894; (_c_) vol. 3, 5th edition, 1896. - 14. Thomas Pitt Taswell-Langmead, _English Constitutional History from - the Teutonic Conquest to the Present Time_; 5th edition, 1896. - 15. Hannis Taylor, _The Origin and Growth of the English Constitution_; - 1898. - - VIII. GENERAL HISTORIES. - - 1. Robert Brady, _Complete History of England_; 1685. - 2. Henry Care, _English Liberties in the Freeborn Subjects’ - Inheritance_; 1719. - 3. John Richard Green, _A Short History of the English People_; edition - of 1875. - 4. Robert Henry, _History of Great Britain_; 6th edition, 1806. - 5. John Lingard, _A History of England to 1688_; 1819-30. - 6. James Mackintosh, _History of England_; edition of 1853. - 7. Goldwin Smith, _The United Kingdom: a Political History_; 1899. - 8. James Tyrrell, _History of England, 1697–1704_. - - IX. HISTORIES OF SPECIAL PERIODS. - - 1. Mary Bateson, _Mediaeval England_ (Story of the Nations Series); - 1903. - 2. Edward Augustus Freeman, _The Norman Conquest of England_; 1870-9. - 3. Edward Augustus Freeman, _The Reign of William Rufus_; 1882. - 4. Samuel Rawson Gardiner, _History of England from the Accession of - James I. to the Outbreak of the Civil War_; 1883-4. - 5. Henry Hallam, _View of the State of Europe during the Middle Ages_; - 7th edition, 1837. - 6. John Mitchell Kemble, _Saxons in England_; 1849. - 7. Kate Norgate, _England under Angevin Kings_; 1887. - 8. Kate Norgate, _John Lackland_; 1902. - 9. Charles Pearson, _A History of England during the Early and Middle - Ages_; 1867. - 10. George Walter Prothero, _The Life of Simon de Montfort, Earl of - Leicester_; 1877. - 11. James Henry Ramsay, _The Foundations of England_; 1898. - 12. James Henry Ramsay, _The Angevin Empire_; 1903. - - X. MISCELLANEOUS. - - 1. Robert Brady, _A Full and Clear Answer_; 1683. - 2. Émile Boutmy, _Etudes de Droit Constitutionnel_; 1885. - 3. Edmund Burke, _Works_; edition of 1837 (Boston). - 4. Stephen Dowell, _History of Taxation and Taxes in England_; 1884. - 5. Hubert Hall, _History of the Customs Revenue in England_; 1885. - 6. Charles Gross, Preface to _Select Cases from the Coroners’ Rolls_ - (Selden Society); 1896. - 7. Gaillard Thomas Lapsley, _The County Palatine of Durham_; 1900. - 8. Henry Richards Luard, Preface to vol. 2 of Matthew Paris, _Chronica - Majora_ (Rolls Series); 1872. - 9. Achille Luchaire, _Communes Françaises_, 1890. - 10. John Luffman, _Charters of London_; 1793. - 11. George Neilson, _Trial by Combat_; 1890. - 12. John Noorthouck, _A New History of London_; 1773. - 13. Jesse Macy, _The English Constitution; a Commentary on its nature - and growth_, 1897. - 14. Frederic William Maitland, _Township and Borough_; 1898. - 15. Frederic William Maitland, in _Social England_, edited by Henry - Duff Trail, vol. 1; 1st edition, 1893. - 16. Frederic William Maitland, Preface to _Select Pleas of the Crown_ - (Selden Society); 1888. - 17. Frederic William Maitland, Preface to _Select Pleas in Manorial and - other Seignorial Courts_ (Selden Society); 1889. - 18. Frederic William Maitland, Preface to _The Mirror of Justices_ - (Selden Society); 1895. - 19. Charles de Montesquieu, _De l’Esprit des Lois_; edition of 1750, - Edinburgh. - 20. Frederic Pollock, _Essays in Jurisprudence and Ethics_; 1894. - 21. James McMullen Rigg, Preface to _Select Pleas, Starrs, and other - Records from the Rolls of the Exchequer of the Jews_ (Selden - Society); 1902. - 22. Oskar Rössler, _Kaiserin Mathilde und das Zeitalter der Anarchie in - England_; 1897. - 23. John Horace Round, editorial notes to _Ancient Charters, Royal and - Private_ (Pipe Roll Society, vol. 10); 1888. - 24. John Horace Round, _Geoffrey de Mandeville: a Study of the - Anarchy_; 1892. - 25. John Horace Round, _Feudal England: Historical Studies of the - Eleventh and Twelfth Centuries_; 1895. - 26. John Horace Round, _The Commune of London and other Studies_; 1899. - 27. Frederic Seebohm, _The English Village Community: an Essay on - Economic History_; 1883. - 28. William Stubbs, Preface to Walter of Coventry, _Memoriale_ (Rolls - Series); 1872. - 29. George James Turner, Preface to _Select Pleas of the Forest_ - (Selden Society); 1901. - 30. Paul Vinogradoff, _Villainage in England: Essays in English - Mediaeval History_; 1892. - - XI. CONTRIBUTIONS TO PERIODICAL LITERATURE. - - 1. George B. Adams, _London and the Commune_, in _Engl. Hist. Rev._ for - October, 1904; xix. 706. - 2. Mary Bateson, _A London Municipal Collection of the Reign of John_, - in _Engl. Hist. Rev._ for July, 1902; xii. 480. - 3. G. H. Blakesley, _Manorial Jurisdiction_, in _Law Quarterly Review_ - for April, 1889; v. 113. - 4. Hubert Hall, _An Unknown Charter of Liberties_, in _Engl. Hist. - Rev._ for April, 1894; ix. 326. - 5. Edward Jenks, _The Story of the Habeas Corpus_, in _Law Quarterly - Review_ for January, 1902; xviii. 64. - 6. Edward Jenks, _The Myth of Magna Carta_, in _Independent Review_ for - November, 1904; iv. 260. - 7. Frederic William Maitland, Review of Dr. Charles Gross’s _The Early - Historical Influence of the Office of Coroner_, in _Engl. Hist. Rev._ - for - - October, 1903; viii. 758. - - 8. Cardinal Manning, _The Pope and Magna Charta_, in _Contemporary - Review_ for December, 1875 (subsequently reprinted 1885, Baltimore). - 9. George Walter Prothero, _An unknown Charter of Liberties_, in _Engl. - Hist. Rev._ for January, 1894; ix. 117. - 10. John Horace Round, _An unknown Charter of Liberties_, in _Engl. - Hist. Rev._ for April, 1893; viii. 288. - 11. John Horace Round, _The Great Assize_, in _The Athenaeum_ for 28th - January, 1899; p. 113. - 12. H. B. Simpson, _The Office of Constable_, in _Engl. Hist. Rev._ for - October, 1895; x. 625. - - XII. REPORTS, BIBLIOGRAPHIES, AND DICTIONARIES. - - 1. _Reports from the Lords’ Committee appointed to search the Journals - of the House, Rolls of Parliament, and other Records for all matters - touching the Dignity of a Peer_; 1st Report, 1820. - 2. _Reports from the Select Committee appointed to inquire into the - state of the Public Records of the Kingdom_ (Record Commission); - 1800. - 3. _Report on Manuscripts in Various Collections_ (Historical - Manuscripts Commission); 1901. - 4. Charles Gross, _The Sources and Literature of English History_; - 1900. - 5. Robert Watt, _Bibliotheca Britannica_; 1824. - 6. William Thomas Lowndes, _The Bibliographer’s Manual of English - Literature_; 1857-64. - 7. _Dictionary of National Biography_, edited by Leslie Stephen and - Sidney Lee; 1885-1900. - - - - - INDEX TO STATUTES. - - - Page - 20 Henry III. c. 6, 78, 252 - c. 9, 504 - c. 11, 247 n., 492 n. - 52 Henry III. c. 15, 264 n. - c. 16, 78 n., 248 n., 324 n. - c. 29, 412, 413 n. - 3 Edward I. c. 1, 247 n., 366 - c. 6, 345 - c. 7, 388 n. - c. 10, 371 - c. 11, 424, 433 n. - c. 12, 400 - c. 20, 247 n. - c. 21, 245 - c. 32, 387, 388 n., 393 - c. 36, 81, 306 - c. 41, 520 n. - c. 48, 248 - 4 Edward I. (Stat. of Rageman), 331 n. - 6 Edward I. c. 1, 177 n. - c. 4, 67, 259 n. - c. 5, 245 - c. 9, 424, 425 - 7 Edward I. 178 - 13 Edward I. c. 4, 247 n. - c. 5, 325 n. - c. 9, 424 - c. 13, 364 - c. 29, 420 n., 424 - c. 30, 327, 330, 333 - c. 39, 330 - c. 47, 357 - 18 Edward I. 178 - 27 Edward I. c. 3, 330 - 28 Edward I. c. 4, 316 - c. 5, 315 - c. 7, 370 - c. 12, 264 - c. 14, 375 - Stat. 3, c. 13, 366 n. - _Statutes of uncertain date._ - Statute of Jewry, 271, 274 - _Praerogativa Regis_, 398, 397 n. - _Consuetudines et Assisae de foresta_, 501 - 1 Edward III. Stat. 2, c. 1, 510 - c. 13, 481 - c. 17, 364 n. - 2 Edward III. c. 2, 330 - c. 9, 465 n., 472 - c. 11, 310 n. - 4 Edward III. c. 15, 376 n. - 5 Edward III. c. 9, 441 n. - 9 Edward III. c. 1, 472 - 14 Edward III. Stat. 1, c. 9, 376 n. - c. 21, 465 n. - Stat. 2, 281 - Stat. 4, c. 4, 250 - c. 5, 250 - 25 Edward III. Stat. 3, c. 4, 404 - Stat. 4, c. 7, 472 n. - Stat. 5, c. 4, 441 - c. 11, 82 - 27 Edward III. Stat. 2, c. 8, 440 - 28 Edward III. c. 13, 440 - 37 Edward III. c. 18, 441 - 38 Edward III. c. 3, 441-2 n. - 42 Edward III. c. 1, 185, 424 n. - c. 3, 442 n. - 2 Richard II. Stat. 1, c. 1, 473 n. - 5 Richard II. Stat. 1, c. 2, 485 - 6 Richard II. c. 5, 333 n. - c. 6, 529 n. - 11 Richard II. c. 7, 473 n. - c. 11, 333 n. - 17 Richard II. c. 6, 442 n. - c. 9, 405 n. - 4 Henry IV. c. 5, 376 n. - c. 11, 404 n. - 5 Henry IV. c. 10, 370 - c. 14, 425 n. - 1 Edward IV. c. 2, 364 n. - 12 Edward IV. c. 7, 404 - 1 Richard III. c. 8, 415 n. - 3 Henry VII. c. 1 (s. 11), 426 - 32 Henry VIII. c. 46, 248 - 1 Edward VI. c. 14, 481 - c. 12 (s. 16), 253 n. - 4 James I. c. 1 (s. 22), 475-6 - 3 Charles I. c. 1, 390, 442, 459 - 16 Charles I. c. 16, 501, 511 - 12 Charles II. c. 24, 67, 70, 72 n., 248, 387 - 13 Charles II. c. 8, 387, 392 n. - 12 George III. c. 20, 400-1 - 54 George III. c. 145, 401 n. - 57 George III. c. 61, 502 - 59 George III. c. 46, 421, 427 - 8 George IV. c. 28, 401 - 3 and 4 William IV. c. 27, 320 n. - c. 106 (s. 10), 401 - 5 and 6 William IV. c. 76 (s. 14), 473 - 14 and 15 Victoria, c. 42, 502 - 15 and 16 Victoria, c. 76, 434 - 33 and 34 Victoria, c. 14, 477 - c. 23, 401 - 37 and 38 Victoria, c. 94, 70, 80 - 50 and 51 Victoria, c. 35, 360 n. - - - - - INDEX. - - - Abbeys, 505-7, 526. - - Advowson, 325, 506. (See also _Presentment_.) - - Agistors, 488. - - Aids (feudal), 72, 80-2, 275, 276-7, 292, 301-6, 308. - - Aids (general), 277-81. - - Alexander II. (King of Scots), 252, 537, 541-3. - - Aliens. (See _Foreigners_.) - - Allegiance, 474, 477-8. - - Amercements, 88, 141, 334-351, 530-3. - - Anglo-Saxon period, 5, 7, 9. - - Anselm, 21, 226, 239, 249. - - Anson, Sir William R., 127 n., 292 n., 298 n. - - Appeal (to a higher court), 10, 14. - - Appeal (or accusation), 108, 160, 161, 371, 418, 425-7, 527-30. - - Arbitrary imprisonment. (See _Imprisonment_.) - - Aristotle, 6. - - Arthur (John’s nephew), 219, 243, 516, 540 n. - - Articles of the Barons, 39, 44-5, 143, 151, 171, 200-2, 223, 230, 232, - 252, 277, 279, 292, 332, 350, 355, 363, 436, 438, 443, 444, 452, - 524, 526, 531, 535-6, 549, 561; - text of, 570. - - Ashford _v._ Thornton, 426-7. - - Assize (different meanings of), 320 n. - - Assize of Arms, 15. - - Assize of Clarendon, 14, 74, 107, 160, 293 n., 397-8, 399, 431, 432, - 436. - - Assize of Measures, 371, 414-7. - - Assize of Northampton, 107, 160, 243, 319 n., 324, 327 n., 370, 397. - - Assize of Wine, 415-7. - - Assize of Woodstock, 337 n., 483, 484, 487, 496, 497 n., 498, 499. - - Assize (Grand), 109, 162, 321-3, 324, 325, 406, 407-8, 411, 412. - - Assizes (Petty), 109, 111, 162-3, 176, 317-33, 407, 412. - (See also _Justice of Assize_.) - - Attainder, 74, 401. - - Bailiffs, 358, 372, 376, 385, 392, 393, 430, 431, 432 n., 435, 467, - 502. - - Barons, (legal position of), 103, 152, 229, 232, 236, 293, 295-7, - 346-9, 474. - - Barons (John’s and Henry’s)— - their motives, 59, 64, 139-140, 140 n., 143, 469-70, 534, 543-5; - their grievances, 58-112, 229, 262-3, 307, 492, 495, 503-4, 507; - their policy, 62, 82-3, 107, 111, 144, 148, 165, 173, 452; - their various factions, 220-1. - - Barons’ War (against Henry III.), 147, 168, 471. - - Barony, 76, 232, 235-6. - (See also _Honour_.) - - Barrington (Hon. Daines), 209, 245 n., 256-7. - - Bateson, Miss Mary, 68-9, 285 n. - - Battle. (See _Trial by combat_.) - - Becket (Thomas à), 15, 224, 225, 294. - - Bémont, Charles, 207, 210-1, 565 n. - - Bench. (See _King’s Bench_ and _Common Pleas_.) - - Benefit of clergy. (See _Clergy_.) - - Bigelow, M. M., 316 n., 408, 430 n., 438 n., 441 n. - - Bishops, 366, 379, 382, 498, 515 n.; - as holders of baronies, 22, 76, 83, 238, 248, 294; - election of, 22, 23, 166, 226-7, 251-2; - Crown’s wardship over, 76, 117, 121, 224, 225, 249, 250, 506; - pay scutage, 87; - no relief, 238-9, 249. - - Blackstone, Sir William, 47, 50 n., 53, 58, 65, 72 n., 78, 89, 130, - 134, 169 n., 171, 175 n., 179 n., 182 n., 197, 198, 199, 201, 206, - 209, 248 n., 259 n., 319 n., 328 n., 386 n., 403 n., 419, 437 n., - 448 n., 502, 551 n. - - Blench tenure in Scotland, 69 n. - - Bloodfeud, 334-5, 418. - - Boroughs, 277-80, 284, 291, 376, 415, 468-9; - privileges of, 26, 284, 415, 468; - obligations of, 376. - - Bot, 335. - - Boutmy, Émile, 120. - - Bouvines (Battle of), 37. - - Bracton, 80 n., 244, 253, 259 n., 272, 345, 348, 383, 396 n., 399, 418 - n., 422, 481 n., 527 n., 529. - - Bréauté, Falkes de, 176, 521, 522. - - Bridges, obligation to repair, 352-8. - - Briwere, William, 181, 184. - - Burgage tenure, 69-70, 76, 427-9. - - Burgess, 136, 252. - (See also _Merchant_.) - - Burke, Edmund, 156 n. - - Canonical election, 22-3, 28, 39, 506. (See also _Bishops_.) - - Capitulary of Kiersey, 73. - - Carta de foresta. (See _Forest_.) - - Cartae (of 1166), 15. - - Castellans. (See _Constables_.) - - Castles, private, 10, 176, 179, 258, 516, 523, 560. - - Castles, royal, 176, 268-9, 390-1, 393. - - Central government, problem of, 16-20. - - Champions, in duel, 527; - king’s, 68. - - Chancery, 16, 108, 401; - Court of, 312, 476-7. - - Charter, John’s Great: - date when sealed, 48, 564 n.; - its prototypes, 113-23; - historical antecedents, 4-5, 7, 58-112, 123, 210-1; - historical sequel to, 164-93; - its form, 123-9, 182; - its contents and characteristics, 129-44; - how far a baronial manifesto, 133-9; - its value, 144-50; - its defects, 150-4, 186, 187, 413, 504, 554-61; - its traditional interpretations, 154-63, 437; - how far declaratory, 130-2, 364-5, 405; - its relations to Henry II.’s, reforms, 123, 130, 131-2, 318, 320-8, - 363, 398, 439, 449; - how far reactionary, 132-3, 406, 409, 413, 449; - its practical nature, 144, 153 n., 437; - its attitude towards Church and clergy, 139, 222-7, 250, 474-7, 506; - towards boroughs and traders, 50, 140, 277-81, 284-91, 463-73; - towards tenants of mesne lords, 139-40, 301-6, 410-1, 478-81, 543-5; - towards lower classes, 133-5, 141, 508-9; - towards villeins, 133, 141-3; - its sanction, 137-8, 150-1, 152-3, 165, 187, 193, 547-61; - variations from Articles of Barons, 50, 139, 140, 151, 223, 252, 277, - 279, 292, 332-3, 350, 363, 436, 512, 524, 526, 536-7; - exaggerated estimates of, 144, 146, 149, 155-7, 275, 292, 437; - manuscripts of, 194-200; - restored by Prince Louis, 194-200. - (See also _Table of Contents_.) - - Charter, Henry III.’s first reissue (1216), 57, 165, 227, 382 n., 388, - 392, 405, 432, 506; - its additions, 240-1, 250, 252, 258, 264, 290, 470, 506; - its omissions, 166-9, 270, 274, 351, 355, 385, 474, 500, 504, 508; - its respiting clause, 168-9, 172, 355 n., 508, 514; - on wardship, 240-1, 248, 250, 506; - on rights of Church and clergy, 250, 351, 474; - on marriage, 252; - on quarantine, 258; - on debtors, 264, 382 n.; - on Jews, 270, 274; - on aids and scutages, 276, 283, 301, 304, 305; - on merchants, 470. - - Charter, Henry III.’s second reissue (1217), 142, 151, 388, 391, 392, - 410 n., 514, 545; - its omissions, 151, 175, 382 n.; - its additions, 142, 172-179, 355-6, 391, 432-3, 444, 448, 480, 506, - 545; - its reactionary side, 173-4, 177; - on widows’ rights, 255, 258, 382 n.; - on scutages, 172-3, 276, 283-4, 300; - on petty assizes, 326, 327, 327-8, 333; - on villeins, 343, 448, 449 n.; - on clergy, 351; - text of, 580. - - Charter, Henry III.’s third reissue (1225), 168 n., 181, 183, 184, 228, - 364, 410 n., 506 n., 508, 509; - its additions, 181-2, 228-9, 382 n.; - marks final form of Magna Carta, 183, 206; - its price, 182, 228-9. - - Charter of Liberties of Henry I., 35, 58, 115-8, 219, 230, 239, 242-3, - 336 n., 337, 385 n., 494, 544; - the model of Magna Carta, 35, 39, 58, 113, 123; - its tenor, 117-8, 242-3, 494; - on marriage, 253, 261; - on wardships, 242-3, 249, 250; - text of, 565. - - Charter of Henry II., 121-2; - text of, 568. - - Charter of Stephen, 77 n., 119, 120, 219, 385 n., 494 n.; - text of, 567. - - Charter of Liberties (the so-called “unknown charter”). (See _Schedule - of Grievances_.) - - Chase, 492. - - Chatham, Lord, 133. - - Chattels, 262-4, 271, 377, 385, 444 n.; - of felons’, 371, 384 n., 395-9; - of intestates, 166, 383-4, 385 n. - - - - Church, (English), Henry II.’s struggle with, 15; - relations to State, 20, 23, 27, 226, 379; - relations to Rome, 20, 21, 27, 167 n., 227, 228 n., 474; - freedom of, 22-23, 50, 117, 120, 138, 166, 217, 222-5, 564-5; - national character of, 21, 224 n.; - question of investitures, 21-2; - canonical election (see _Bishops_); - influence of church on Charter, 50, 145, 223, 382-4, 474; - relations to Crown, 116, 220, 227, 474; - relations to John, 61, 62, 139; - relations to barons, 62; - relations to lower classes, 61-2; - its wealth, 178-9, 379. - (See also _Clergy_.) - - Clergy, 167 n., 349-51, 417, 474; - Benefit of, 23, 121, 122, 138, 139, 224, 253 n., 515 n. - - Cnut, 7, 17, 18, 484. - - Coinage, private, 10. - - Coke, Sir Edward (Chief Justice), 66, 70 n., 79 n., 133, 141, 156, 157, - 183, 208, 211, 221, 236, 241 n., 246 n., 252 n., 256, 259, 329 n. - 338 n., 345, 364 n., 370 n., 371 n., 396, 401, 406 n., 410 n., 442, - 445, 447, 448, 463, 476, 530, 544; - his unhistorical method, 208, 447. - - Combat. (See _Trial by combat_.) - - _Comitatus_, 238 n., 317 n. - (See _Shire_, _Shire Court_, and also _Earldom_.) - - Commissions of Justices, 329-331. - - Committee of Executors. (See _Executors_.) - - Common Law, 433 n.; - growth of, 15. - - Common Pleas, 109, 111, 308-17; - Court of, 14, 109, 177, 311-5. - - Commons (House of), 156 n., 191, 554. - - _Commune Concilium_, 81, 82, 110, 124, 150, 166, 167, 173, 188, 190, - 274-284, 291-301, 348, 450 n., 453, 557; - functions of, 151-2, 174, 192, 298-300, 557; - composition of, 293-8. - - Commune, 138, 286-9, 553-4. - - Commune of London. (See _London_.) - - Compurgation, 103, 104, 432. - - Confirmatio Cartarum, 85, 185, 281. - - Constables, 269, 270, 358, 368-70, 387-8, 390-1, 456 n., 486 n., 502-5. - - Constitutional development in England, 3, 60, 143-4, 173, 188, 192, - 556. - - Constitutions of Clarendon, 23, 225, 238 n., 248, 350 n., 474. - - Contenement, 334, 339, 345-6, 347. - - Conviction, 391-401, 415. - - Coronation, 119, 218, 220; - oath, 114, 115, 116, 122, 131. - - Coroner, 20, 358, 362, 370-2, 415 n. - - Copyhold, 65. - - Cotton, Sir Robert, 195, 196-7. - - Council of St. Alban’s (1213), 34, 123, 365, 503. - - Council of Oxford (1213), 36. - - Councils, Lateran. (See _Lateran_.) - - County, 18, 366, 368, 372-5, 431. - (See also _Firma Comitatus_.) - - County Court, 13, 94, 99, 103, 177, 261, 319, 331-2; - to appoint twelve Knights to reform abuses, 51, 511, 513; - to appoint Knights for assizes, 327-8. - - Courts, three rival systems of, 94-112. - - Courts, Christian, 121, 379, 384-5. - - Courts, local, 94, 99, 106. - (See also _County_ and _Hundred_.) - - Courts, private, 60, 64, 95-7. - - Courts, royal, 14, 93-112, 308-9, 319. - (See _Curia Regis_, _Chancery_, _Common Pleas_, _Exchequer_, _King’s - Bench_.) - - Creasy, Sir Edward, 133-4, 212, 437 n., 446 n. - - Creditors, 262-6, 271, 273-4, 316-7. - (See also _Jews_.) - - Criminal Law, 107-8, 334-7, 360, 361-3, 398-401, 420-7, 446, 453-5. - (See also _Pleas of the Crown_.) - - Crown: relation to feudatories, 10; - title to, 9, 113, 217, 219. - (See also _Pleas of the Crown_.) - - Crusaders, 523-6, 535. - - Curia Regis, 13, 14, 63, 71, 97, 106, 109, 115, 190, 191, 219, 220, - 294, 309, 311, 451. - - Customs, 445, 465, 468-9, 512, 543. - - Cygony, Engelard de, 486 n., 503, 518-21. - - Darrein presentment. (See _Presentment_.) - - David I., King of Scots, 538. - - Debtors, 262-6, 269, 271, 273-4, 316-7, 376-8. - - _Dialogus de Scaccario_, 75, 136, 231 n., 232 n., 240, 263 n., 264 n., - 295 n., 303 n., 338 n., 384 n., 480 n. - - Dicey (Prof. A. V.), 148. - - Disparagement, 250-2, 541. - - Disseisin, 142, 323, 324, 444, 448, 526. - - Disseisin (novel), 317, 323-4, 326. - - Domesday Book, 12. - - “_Dominus_” (meaning of), 218. - - Dower, 255-6, 260, 273-4, 531. - - _Duellum._ (See _Trial by Combat_.) - - Dunstan, 17, 20, 114, 116. - - Dymoke (Family of), 68. - - Ealdormen, 10, 17, 18. - - Earldoms, Anglo-Saxon, 9; - Norman, 236-8. - - Earls, 10, 18, 103, 152, 229, 232, 237, 293, 317 n., 346-9, 366, 474. - - Earls Palatine, 9, 18, 78 n. - - Edward Confessor, 7, 9, 18, 113; - his laws confirmed, 33, 39, 118, 130, 131, 145, 503. - - Edward I., 85, 176, 271, 298, 307-8, 315, 356, 365 n., 366 n., 411, - 412-3, 471, 510, 523, 543, 556-7; - his reforms, 186-193; - his attitude to the Charter, 186, 189, 412-3; - his attitude to the Church, 227; - his Parliaments, 189-192; - his _Inspeximus_ of the Charter, 198, 205, 206, 232 n., 352 n. - - Edward II., 472, 501, 510. - - Edward III., 281, 357, 389, 472, 475, 510. - - Election; meaning of word, 328; - principle of, 25, 51, 176, 327-8; - of knights to reform abuses, 51, 511; - in relation to kingship, 219-220; - of jurors, 327-8. - - England, growth of a united, 4, 6; - unification of, 7. - - English church. (See _Church_.) - - English law. (See _Law_.) - - English monarchy. (See _Monarchy_.) - - Escheat, 73-5, 179, 394-7, 478-81. - - Estovers, 254, 258-9, 399, 496. - - Exchequer, 11-12, 13, 14, 19, 63, 171, 172, 196, 262, 264, 311, 316 n.; - Court of, 311-2, 316-7. - - Executive, two types of, 5. - - Executors of Charter, 51, 53, 513, 525, 532, 534, 543-561. - - Eyres. (See _Justices of Eyre_.) - - Falconry. (See _Fowling_.) - - Fee-farm, 67, 70, 427-9. - - Felony, 73, 74, 371, 384 n., 394-401. - - Feudal aids. (See _Aids_.) - - Feudal anarchy, 7, 10, 13, 16, 60, 148, 409. - - Feudal grievances, 58-112, 145, 409. - - Feudalism in England, 8, 9, 10, 64-5, 66, 70, 409. - - Feudal incidents, 72-80, 308. - (See also _Reliefs_, _Escheats_, _Wardships_, _Marriages_, _Primer - Seisins_, and _Fines for Alienations_.) - - Feudal jurisdictions. (See under _Jurisdictions_ and under _Courts_.) - - Feudal obligations, 64-93, 138-9, 166, 230, 308. - (See also _Services_, _Incidents_, and _Aids_.) - - Feudal services, 15, 64, 65, 71, 82-6, 234, 306-8. - - Feudal tenures. (See _Tenures_.) - - Fictions (legal), 81, 317 n., 412-3. - - Fines, 90-1, 245, 261, 307, 337, 461, 493, 498, 530-3; - differ from amercements, 337, 344-5. - - Fines for alienations, 79-80. - - _Firma burgi_, 284, 285, 376, 519. - - _Firma comitatus_, 166, 372-6, 519. - - Fishing, 357-8, 403-4. - - Fitz Aylwin, Henry, 41. - - Fitz Peter, Geoffrey, 36. - - Fitz Walter, Robert, 30, 31, 41, 446, 507 n., 517, 551. - - Flambard, Ralph, 10, 71, 234, 238, 239, 242, 249. - - Foreigners, 140, 145, 290-1, 440, 465-73, 474. - - Foreign service, 85-6, 154, 307-8. - - Forest Charters, 53, 171, 175, 181, 184, 185, 337 n., 356, 485, 487, - 495, 496, 497 n., 499, 501. - - Forest Courts, 482, 489-92, 497-8. - - Foresters, 34, 485-9, 497, 499-501, 502 n., 503, 508-9. - - Forests, 166, 368, 482-502, 507-14, 526; - protests by prelates anent, 52; - boundaries of, 184, 185, 507-11. - - Fowling, King’s rights of, 353-8, 507-8. - - Frankalmoin, 67, 70, 307, 350. - - Freedom, problem of, 4-5. - - Freehold, 65-71, 445. - - Freeman, Prof., 71, 86, 87, 114, 115 n., 219, 234. - - Freeman, defined, 135-7, 228-9, 338 n., 352 n., 448; - rights of, 334, 338-40, 392, 405, 436, 440. - - Free socage. (See _Socage_.) - - Fyrd, 15, 352. - - Glanvill, 74, 80, 230 n., 233 n., 344 n., 345, 383, 395-6, 406, 408 n., - 428 n., 429 n., 441 n., 504, 528, 529. - - Gneist, Dr. Rudolf, 129-130, 134, 145 n., 212, 442 n., 450, 557-8. - - Godwin, 18. - - Government. (See _Local government_.) - - Grand Assize. (See _Assize_.) - - Grand Jury. (See _Jury_.) - - Great Charter. (See _Charter_.) - - Great Serjeanties. (See _Serjeanties_.) - - Green, John Richard, 26, 134. - - Grey, John de, 28. - - Gross, Dr. Charles, 362 n. - - Gualo (papal legate), 56, 57, 164, 170, 171. - - Guardian, 259. - (See also _Wardship_) - - Guilds, 466, 470, 473. - - Habeas corpus. (See _Writ of_.) - - Hall, Hubert, 85 n., 173 n., 203-4, 464-5 n. - - Hallam, Henry, 78, 134, 135, 243, 328, 364, 389, 437 n., 458, 460, 532. - - Hardell (William), Mayor of London, 289 n., 551. - - Harold, King, 9. - - Hawking. (See _Fowling_.) - - Henry I., 7, 11-12, 19, 21, 116, 117, 219, 230, 242, 243, 494; - his achievements, 10-12; - relations to church, 21, 22, 224, 226, 239; - scutage under, 87; - charter to Jews, 269; - charter to London, 285-6; - Charter of liberties. - (See _Charter_.) - - Henry II., 7, 13-16, 249, 294, 295, 313, 384 n., 478, 494, 497, 538; - achievements of, 13-15, 59, 158; - institutes new system of procedure, 14, 107-112, 319, 325, 361, 407; - his policy, 106-7, 366-7, 466; - invents writ process, 108, 406-9; - opposes the hereditary principle, 19; - discourages trial by combat, 108, 161, 162, 320-2, 419-20; - attacks the private jurisdictions, 106, 322 n., 406-9, 432, 455; - relations to church, 22-3, 122, 224, 225, 249; - takes aids, 81; - his levy of scutage, 81, 86, 87, 88, 172; - lays foundations of trial by jury, 158-163; - Charter to London, 286; - opens royal courts to all freeholders, 14, 93-4, 97-8, 106, 411, 460. - (See also _Charter_.) - - Henry III., 147, 164, 168, 271, 305, 314, 358, 384 n., 452, 461, 471, - 474, 507, 509-10, 556; - his advisers accept the Charter, 57, 187; - takes aids, 81; - takes scutages, 174-5, 304; - his attitude to Magna Carta, 164, 181, 183, 184, 185, 186-7, 471, - 507, 509; - his alliance with Rome, 167 n., 227, 228, 384 n.; - declared of age, 180, 183. - (See also under _Charter_.) - - Honorius III., 180, 181. - - Honours, 10, 71, 232, 235-6; - Courts of, 10. - - Hostages, 30, 514-8, 536, 541, 560. - - Hoveden, Roger of, 9, 415, 416. - - House of Commons. (See _Commons_.) - - House of Lords. (See _Lords_.) - - Hubert de Burgh, 44, 51, 57, 170, 180, 182 n., 183, 290, 542 n., 559. - - Hubert, Walter (Archbishop), 25, 27, 132, 361, 380 n., 404, 411 n. - - Hundred, 94, 96, 372-4, 431; - court of, 13, 94, 99, 159. - - Imprisonment (arbitrary), 156, 457-9. - - Incidents. (See _Feudal incidents_.) - - Indictment, 108, 160, 364, 398-9, 431, 436. - - Innocent III., 28, 31, 40, 42, 53, 54, 55, 56, 57, 61, 62, 85, 182, - 222, 516, 541, 561. - - Innocent IV., 227. - - Inquest of Service (1212), 29, 89-90, 91-2, 172. - - Inquest of Sheriffs. (See _Sheriffs_.) - - _Inquisitio_, principle of. (See _Recognitio_.) - - Interest, 265-6, 310. (See also _Jews_ and _Usury_.) - - Interregnum, 116. - - Investitures (struggle of), 21-2. - - James I., 72 n., 387, 394, 475. - - Jarls (Danish), 18. - - Jews, 166, 171, 175, 256, 262-74, 305, 310, 384 n., 435, 439-40. - - Joan (John’s natural daughter), 29, 30. - - John; his title to Crown, 217-220; - his excessive exactions, 26-7; - his levies of scutage, 86-93; - his charters to English Church, 39, 41, 63, 77, 139, 226, 227, 249; - to London, 41, 288-9, 404, 470; - to Jews, 269; - meets barons at Runnymede, 43, 46; - takes Crusader’s vow, 40; - his relations with national Church, 39, 44, 61, 62, 249; - with Rome, 28-9, 36, 61, 62, 63, 91; - his surrender to Innocent, 31-2, 36; - asks Innocent to annul charter, 53, 182; - his treatment of Welsh hostages, 30, 514-8; - his death, 57. - (See also _Charter_.) - - Judges (King’s), 108, 109, 225, 358, 416, 502-5. - - Judgment (in medieval law), 101, 103-5. - - Judgment of peers. (See _Peers_). - - Jurisdiction, royal, 14, 93-112, 169 n., 309. - (See also _Courts_.) - - Jurisdictions, private, 10, 14-15, 93-112, 169 n., 406-9. - (See also _Courts_.) - - Jury, trial by, 25, 456-7; - relation to _recognitio_, 106, 159; - relation to writ _de odio_, 108, 161, 420-1; - relation to Magna Carta, 158-163, 419-21. - - Jury (of accusation or presenting jury), 158, 159-160, 431. - - Jury (civil), 158, 161-3. - - Jury (grand), 158, 160. - - Jury (petty), 158, 161, 420-1, 457. - - Justice, three systems of, 93-9, 313, 328, 360 n. - (See also _Courts_ and _Jurisdictions_.) - - Justices (King’s). (See _Judges_.) - - Justices of the Peace, 20, 331, 367. - - Justices, itinerant (or of Eyre), 12, 13, 19, 20, 318-9, 329, 361. - - Justices of Assize, 176, 177, 318, 319-20, 329-331, 332; - commissions of, 329-331. - - Kiersey, capitulary of, 73. - - King’s Bench, 14, 109, 311-2, 313, 314-5, 348. - - Knight’s fee, 83, 92, 233, 277 n., 306. - - Knight’s service, 66, 67, 68, 70, 71, 233, 427-8. - - Kydells. (See _Weirs_.) - - Lanfranc, 21, 116. - - Lateran Council (1099), 21. - - Lateran Council (1215), 55, 161, 399, 432. - - Law (English), development of, 14. - - Law (_lex_), technical meaning of, 102, 161, 430, 440-1. - (See also _Trial_.) - - Leasehold, 65-6. - - Legal fictions. (See _Fictions_.) - - Legal procedure. (See _Procedure_.) - - Leofric, 18. - - Letters testimonial, 50; - text of, 563 n. - - Littleton, 66, 68, 69, 70 n., 233 n., 252, 428. - - Llywelyn, 29, 536. - - Local Government (problem of), 16-20. - - London, 42, 56, 57, 119, 140, 270, 274-5, 284-91, 340, 404-5, 467, - 470-3; - City and Tower granted by John in security, 51, 560; - taxation of, 274-5, 277-81; - John’s charters to, 41, 288-9, 404, 470. - - Longchamp, 63. - - Lords (House of), 237, 455-6. - - Louis (son of King Philip of France), 56, 165, 170. - - Macy, Prof. Jesse, 127 n. - - Magna Carta. (See _Charter_.) - - Maitland, Prof. F. W., 95 n., 98 n., 128 n, 144 n., 153 n., 207, 362 - n., 456. - - Manors, 10, 71, 141, 342, 352 n., 393; - on royal demesne, 372, 376. - - Manorial courts, 10, 93, 96, 106. - (See also _Courts_ and _Jurisdictions_.) - - Marriage, feudal incident of, 66, 68, 69, 77-8, 250-3, 260-1. - - Maritagium, 254-7, 531. - - Marshal (William, earl Marshal), 39, 44, 215, 216, 507, 559; - a mediator between King and barons, 39, 40, 43, 559; - acts as Regent, 164, 165, 170, 171, 180, 184, 201, 299. - - Matilda (daughter of Henry I.), 12-13, 118, 162. - - Mayor of London, 288, 289, 290, 551. - - Medley (Prof. D. J.), 295 n., 296, 327 n., 564 n. - - Mercenaries, 15, 30, 39, 165, 166, 261, 391, 522-3. - - Merchants, 61, 63, 140, 145, 334, 340-1, 402, 415, 416, 440, 463-73, - 474. - - Ministerial responsibility, 25, 150, 188, 192, 298, 505. - - Minorities (Rights of), 299-300. - - Mirror of Justices, 207, 357 n., 431 n., 434. - - Monarchy, two types of, 5. - - Monarchy (English), 60, 409; - growth of, 4, 6, 12, 13, 15, 18, 20; - strength of, 7, 12, 15, 16, 24, 59; - weakness of, under Anglo-Saxons, 16, 20; - functions of, 94, 97. - - Monopolies, 140, 156, 445-6, 469, 470-5. - - Montfort (Simon de), 188, 189. - - Moore, Stuart A. and H. S., 358, 403 n. - - Mort d’ancestor, 317, 324, 333 n., 426. - - Municipalities. (See _Boroughs_.) - - Nationality (conception of), 149, 156. - - National unity in England, growth of, 6, 149; - forces opposed to, 7. - - Neilson, George, 321 n., 527 n., 528 n. - - Nicholas (Papal legate), 36, 227, 365. - - Norgate, Miss Kate, 36, 49 n., 50 n., 58 n., 90 n., 92 n., 212, 288, - 374 n., 559. - - Norman Conquest, 5, 9, 20, 71, 105, 115, 158, 321, 366, 484. - - Norman period and rule, characteristics of 5, 7. - - Novel disseisin. (See _Disseisin_.) - - Oligarchic elements in England, 5. - - Ordeal, 74, 102, 103, 104, 161, 399, 415, 430-3, 528-9. - - Original writs. (See _Writs_.) - - Outlaws, 74, 446, 473-4. - - Parliament, 150, 173, 185-6, 188, 190, 294, 557; - rights of, 81; - functions of, 174, 190-1, 298; - composition of, 190. - - Parliamentary taxation. (See _Taxation_.) - - Parliamentary Representation. (See _Representation_.) - - Palatine earldoms. (See _Earls_.) - - Pandulf (Papal legate), 31, 54, 561. - - Papal Bull, annulling Charter, 55. - - Papal _Curia_, 28. - - Papal interference in England, 21, 28, 32, 54, 56, 182, 227. - - Papal legates. (See _Gualo_, _Nicholas_, _Pandulf_.) - - Paris, Matthew, 32, 53, 58, 181, 293 n., 300-1, 453, 543 n., 550, 559, - 561 n. - - Parks, 247, 492. - - Peasantry. (See _Villeins_.) - - Peers, 103, 152, 216 n., 346-9. - - Peers (Judgment of), 158 n., 346, 436, 438-40, 449-50 n. , 452-6, 523. - - Peter des Roches (Bishop of Winchester), 36-7, 51, 54, 58, 180, 183, - 215, 300, 452, 503. - - Peter of Wakefield, 30. - - Petition of Barons (1258), 232 n., 252, 333 n., 430, 481, 507. - - Petty Assize. (See _Assize_.) - - Petty Jury. (See _Jury_.) - - Petty Serjeanty. (See _Serjeanty_.) - - Philip (King of France), 31, 33, 37, 56, 470. - - Pike, L. O., 152 n., 295 n., 313, 347, 348 n., 442 n., 444 n., 449-50 - n., 456, 457 n. - - Pipe Rolls, 11. - - Pleas. (See _Common pleas_.) - - Pleas of the Crown, 107, 109, 111, 112, 310, 314-5, 359-363, 370-1, - 398; - in Scots law, 360. - - Pleas of the forest, 368. - - Pollock, Sir Frederic, 310. - - Pope, 61, 79 n., 164, 167 n., 227. - (See _Papal_, also _Honorius_ and _Innocent_.) - - Presentment (darrein), 176-7, 225, 317, 325, 326, 333. - - Primer seisin, 78-9, 248, 254. - - Privy Council, 191. - - Procedure (legal), 14, 99-112; - Henry II.’s reforms, 14, 106-112. - - Proof (in medieval law), 102-3; - (See also _Trial_.) - - Protests by the prelates in John’s favour, 52, 560-1; - text of, 579. - - Prothero, G. W., 85 n., 117 n., 125 n., 131-2, 139-140, 149 n., 154 n., - 175 n., 203, 212 n., 228 n., 448. - - Provisions of Oxford (1258), 187, 504. - - Purprestures, 495. - - Purveyance, 142, 369, 386-90, 392-4. - - Quarantine (Widow’s), 258. - - Queen’s gold, 232. - - Ramsay, Sir James, 92 n., 212, 225 n., 243 n., 375 n., 394 n. - - _Recognitio_ (principle of), 34, 105-6, 159, 160, 162, 323, 325, 512. - - Reeves, John, 209-210, 257, 340 n., 447 n., 450. - - Regarders, 484, 490, 491. - - Regency, 164, 169. - - Relief (feudal incident of), 68, 69, 73, 117, 179, 239-241, 249, 276 - n.; - not due from bishop-elect, 117, 238-9; - not due after wardship, 239; - definition of sums due, 230-3. - - Representation, principle of, 25, 34, 36, 160, 190, 192, 297-8; - parliamentary, 292, 297-8. - - Responsibility. (See _Ministerial_.) - - Restoration (The), 66, 67, 248, 387, 502. - - Richard I., 24-6, 63, 81, 89, 148, 231, 286, 539; - lessons of his reign, 25-6. - - Richard II., 473. - - Roches (Peter des). (See _Peter_.) - - Roger, bishop of Salisbury, 11, 119. - - Roger of Hoveden. (See _Hoveden_.) - - Roger of Wendover. (See _Wendover_.) - - Rolls. (See _Pipe Rolls_.) - - Rome. (See _Pope_ and _Papal_.) - - Round, John Horace, 71, 85 n., 87, 88, 92, 95 n., 119, 121 n., 202-3, - 225 n., 234, 285-7, 324 n. - - Royal justice. (See _Courts_ and _Jurisdiction_.) - - Royal writs. (See _Writs_.) - - Runnymede, 43-5, 53, 64. - - Salisbury, Roger, bishop of. (See _Roger_.) - - Salisbury Plain, oath of homage sworn on, 10. - - Schedule of grievances (27 April, 1215), 40, 44-5, 84 n., 202-5, 245, - 246, 258 n., 307 n.; - text of, 569. - - Scotland, 30; - relations to England, 537-43; - land tenures in, 67, 69 n., 70, 72 n., 80; - kings of (see _Alexander_, _David_, and _William_); - Princesses Margaret and Isabel of, 537, 539-42. - - Scutage, 15, 29, 37, 64, 84 n., 86-93, 172-3, 274-6, 294, 302, 304, - 308; - grand serjeanties not liable for, 68; - in charter of 1215, 274-6, 292; - in charter of 1217, 172-3; - by sub-tenants, 302. - - _Scutum._ (See _Knight’s fee_.) - - Seal (king’s great), 169, 180, 181, 184. - - Seebohm, Frederic, 95 n., 341. - - Seisin, 323. - (See also _Primer Seisin_ and _Disseisin_.) - - Serjeanty (grand), 67-8, 70, 78 n., 233, 307. - - Serjeanty (petty), 68-9, 70, 78 n., 233, 307, 427, 429. - - Service. (See under _Feudal service_, _Foreign service_, and _Knight’s - service_.) - - Sheriff, 10, 11, 12, 13, 18-19, 34, 42, 47, 50, 51, 177, 244, 364, - 366-8, 372, 376, 392, 398, 399, 431, 502-5, 511, 513; - chief magistrate of county, 18, 366; - his powers, 364, 366-7, 376, 399; - his gradual decline, 20, 367; - his tyrannies, 20, 359, 366 n., 373-5, 377; - his “tourn,” 97, 177, 360, 364; - his “aid,” 261; - not to hold pleas of Crown, 358-72; - in Scotland and in America, 367-8. - - Sheriffs (inquest of), 19. - - Shire. (See _County_.) - - Socage, 66-7, 69, 70, 76, 81, 233, 307, 427-9. - - Statutes. (See separate _Index to Statutes_.) - - Stephen (King), 12-13, 19, 118-9, 162, 219, 243; - relations to Church, 22, 77 n., 119, 224; - his title, 119-120, 219. - (See also _Charters of_.) - - Stephen Langton, 28, 31, 32, 33, 34, 35, 38, 43, 52, 62, 122, 139, 145, - 181, 223, 226, 227, 249, 451, 506, 532,542 n., 551; - a mediator between king and barons, 39, 40, 50, 52, 54, 513, 524-5, - 531, 542 n., 560, 562; - influence on substance of Great Charter, 50, 506. - - Stubbs, Bishop, 43, 54, 86, 87, 117, 118, 125, 134, 140 n., 143 n., - 149, 165 n., 169 n., 170 n., 179 n., 182 n., 184 n., 206, 211, 220 - n., 247 n., 257 n., 259, 284-5, 296, 299 n., 351 n., 365 n., 391 n., - 430 n., 453 n., 483, 491, 493, 503, 532, 544, 559. - - Succession, intestate, 166, 175, 382-5; - testate, 376-82. - - Suit and service, 72, 82-6. - - Suit, at county and hundred courts, 94, 177, 261, 332; - at forest courts, 482, 497-8; - at lord’s court, 72, 82. - - Suit (or forewitnesses), 101-2, 433-4. - - Swanimotes, 491. - - Synod of Whitby, 7. - - Tallage, 140, 142, 270, 272, 277-81, 376. - - Taxation, 20, 26-7, 152, 165, 166, 185, 196, 274-284; - heavy under Richard, 24-5, 148, 288; - common Council’s rights over, 152, 174, 185, 274-284, 298; - parliamentary, 281, 281-4. - - Taylor, Dr. Hannis, 130, 140, 159 n., 212, 296. - - Tenant, 65. - - Tenement, 65, 345. - - Tenure by barony, 66. - - Tenure by castle-ward, 70 n. - - Tenure in chivalry. (See _Knight’s service_.) - - Tenures, 95-71. - (See also _Burgage_, _Fee-farm_, _Frankalmoin_, _Knight’s service_, - _Serjeanty_, _Socage_, _Villeinage_, also under _Freehold_.) - - Thayer, Prof. J. B., 159 n., 430 n., 433 n., 441 n. - - Thomson, Richard, 210, 211. - - Tourn. (See _Sheriff’s tourn_.) - - Traders. (See _Merchants_.) - - Treason, 74, 395-7. - - Trial (in medieval law), 101, 102-5, 161, 399, 417, 430. - - Trial by combat, 103, 105, 108, 109, 161, 162, 320-1, 323, 325, 406, - 417-420, 425-7, 433, 527-30. - - Trial by jury. (See _Jury_.) - - Turner, G. J., 184 n., 484 n., 509 n. - - “Unknown Charter of Liberties.” (See _Schedule of Grievances_.) - - Usury, 262, 265-6, 270, 272, 384 n. - (See also _Jews_.) - - Verderers, 368, 487. - - Vesci, Richard de, 30, 31, 40, 446, 517, 551. - - _Vicecomes._ (See _Sheriff_.) - - Villeinage, 66, 342, 449. - - Villeins, 93, 94-5, 106, 136, 141-3, 143 n., 145, 245, 252, 278, 334, - 338 n., 341-4, 393, 410 n., 448, 449 n.; - legal status of, 341-3. - - Vinogradoff, Prof. Paul, 344 n. - - Wales, 29, 30, 533-7. - - Wapentake, 94, 160, 372-4. - - War, right of private, 10. - - Warden, 485-6. - (See _Constable_, also _Guardian_.) - - Wardship, ordinary, 67, 68, 69, 75-7, 78, 117, 142, 179, 239-250, 259, - 265, 427-8, 461 n., 526; - over vacant sees, 117, 224, 225, 239, 505-7; - prerogative, 428-30, 526. - - Warrens, 247 n., 492-3, 511. - - Waste of ward’s lands, 244-6, 250; - of felon’s lands, 394-7; - in forests, 495, 496-7. - - Watling Street, 7. - - Weirs, 357, 402-5. - - Welshmen, 30, 440, 533-7. - - Wendover (Roger of), 30, 35, 38, 43, 53, 123, 204, 205, 355 n., 550 n., - 561 n. - - Wer, 335, 336, 340. - - Wessex, supremacy of, 7, 17; - royal House of, 16, 113. - - Westminster, 12, 111, 177, 310, 314, 316, 326, 333. - - Whitby, Synod of, 7. - - Widow’s rights, 243, 253-261, 273-4, 380, 384, 527. - - Wills, 376-82. - - William I., 7, 8-10, 12, 16, 21, 71, 83, 106, 115, 116, 191, 234, 507, - 514; - difficulties and policy of, 8-10, 65; - local government under, 16, 18-19; - relations to Rome, 21-2; - his innovations, 105-6; - his title to English Crown, 9, 115. - - William II., 10-11, 21, 71, 116, 239, 242, 249; - his relations to the church, 21, 238-9, 249. - - William the Lion, King of Scots, 252, 538-41. - - Witenagemot, 9, 18, 114, 219, 294. - - Wites, 335, 336, 337 n. - - Witnesses, 102. - - Writ _de odio et atia_, 108, 161, 417-25. - - Writ _praecipe_, 108-9, 405-13. - - Writ of _habeas corpus_, 156, 421-2. - - Writ _ne exeat regno_, 476-7. - - Writs (royal), 14, 406, 417, 460. - - Writ process, 14, 108, 406-9. - - 1905 - - UNIVERSITY PRESS - - ROBERT MACLEHOSE MA - JAMES J MACLEHOSE MA - - GLASGOW - ------------------------------------------------------------------------- - - Transcriber’s Note - -The entry for ‘3 Edward I. c. 41’ refers to ‘520 n.’ which appears in -‘527 n.’ - -The entry for ‘5 Henry IV. c. 14’ in the index of Statutes refers to -‘425 n.’ That note refers to ‘1 Henry IV. c. 14’, which is most likely -correct. One summary of that Statute says that it “abolished appeals of -treason in parliament, and sent the accuser to established courts of -law.” (Lolme, _The Constitution of England_, 1839, p. 137.) - -Coincidentally, a reference in the index entry for ‘Constables’ refers -to ‘456 n.’ No note on that page mentions that topic. However, the -‘Court of the Constable and Marshal’ _is_ mentioned in the same ‘425 -n.’, which is not indexed to that topic. We suggest that the reference -to 425 n. was intended. - -Lapses in the punctuation of index and footnote entries have been -regularized with no further mention. - -Other errors deemed most likely to be the printer’s have been corrected, -and are noted here. The references are to the page and line in the -original. Those with a third number refer to the line within a footnote -beginning on that page. - - 65.37 copyhold and leasehold[.] Restored. - 83.118.4 go with the King an[d] serve him Restored. - 149.23 whether conscious or uncon[s]cious Inserted. - 219.328.1 a prisoner in Corfe Castle[.[ Added. - 307.31 to those of Charles II[.] Added. - 323.37 twelve local gentlem[e/a]n Replaced. - 367.20 for each county by p[r]icking at random Removed. - 386.3 he can have postpon[e]ment Inserted. - 422.762.1 _En[t]stehung der S[ch]wurgerichte_ Inserted. - 425.14 I[n/t] was unfair that he should be Replaced. - 435.793.1 _En[t]stehung der Schwurgerichte_ Inserted. - 440.809.1 See _Placitorum Abbrev[i]atio_ Inserted. - 483.33 these high[ ]places of royal prerogative Inserted. - 488.914.3 to speak of "agisting a wood,[”] Added. - 490.35 exercised functions anal[a/o]gous to those Replaced. - 537.11 to be otherwise acc[c]ording Removed. - 540.1052.4 virtually her fellow-[p]risoners Restored. - 547.41 the said five-and[-]twenty barons Restored. - 577.37 manu nostra saisita[ saisita] fuerint Removed. - 588.33 sumagio aliquod chim[u/i]nagium capiatur Replaced. - 588.38 detur chiminagium for[i/e]stariis nostris Replaced. - 601.18 influence o[n/f] church on Charter Replaced. - -*** END OF THE PROJECT GUTENBERG EBOOK MAGNA CARTA: A COMMENTARY ON THE -GREAT CHARTER OF KING JOHN *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. 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