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Full text of "Magna carta commemoration essays"


THIS BOOK IS PRESENT 

IN OUR LIBRARY 

THROUGH THE 

GENEROUS 

CONTRIBUTIONS OF 

ST. MICHAEL'S ALUMNI 

TO THE VARSITY 

FUND 




... 






I . 

t 
* 








MAGNA CARTA 
COMMEMORATION ESSAYS 



MAGNA CARTA 
COMMEMORATION 

ESSAYS 



WITH A PREFACE BY THE 

RT. HON. VISCOUNT BRYCE, O.M., ETC. 



EDITED BY 



HENRY ELLIOT MALDEN, M.A. 

HON. FELLOW, TRINITY RALL, CAMBRIDGE 
HON. SECRETARY, ROYAL HISTORICAL SOCIETY 



FOR THE 

ROYAL HISTORICAL SOCIETY 
1917 







Utt'4 



CONTENTS. 



PAGE 

MAGNA CARTA CELEBRATION COMMITTEE, 1914 . . . vii 

PREFACE Viscount Bryce xi 

INTRODUCTION v The Editor xix 

MAGNA CARTA, 1215-1915 . . Professor McKechnie i 

INNOCENT III AND THE CHARTER . Professor G. B. Adams 26 

BARONS AND KNIGHTS IN THE GREAT CHARTER 

Dr. /. H. Round 46 

CLAUSE 39 ... Professor Sir Paul Vinogradoff 78 

PER IUDICIUM PARIUM VEL PER LEGEM TERRAE 

Professor Powicke 96 

MAGNA CARTA AND THE COMMON LAW. Professor Mcllwain 122 

THE INFLUENCE OF MAGNA CARTA ON AMERICAN CONSTI- 
TUTIONAL DEVELOPMENT . . Dr. H. D. Hazeltine 180 

MAGNA CARTA AND SPANISH MEDIEVAL JURISPRUDENCE 

Senor Rafael Alt amir a 227 

FINANCIAL RECORDS OF THE REIGN OF KING JOHN 

Mr. Hilary Jenkinson 244 

INDEX 301 



MAGNA CARTA CELEBRATION, 1915. 

GENERAL COMMITTEE. 

NOMINATED IN 1914. 

(Italics indicate University or Society nominating a Representative 
on the Committee.) 

CHAIRMAN : 
'The Right Hon. VISCOUNT BRYCE, O.M., D.C.L., LL.D., F.R.S., F.B.A. 

PRESIDENT OF THE ROYAL HISTORICAL SOCIETY: 

'C. H. FIRTH, LL.D., Litt.D., F.B.A., Regius Professor of Modern History, 
University of Oxford. 



His Grace the Lord ARCHBISHOP OF CANTERBURY. 

His Eminence CARDINAL GASQUET. 

The Rt. Hon. the LORD MAYOR OF LONDON. 

The Rt. Hon. VISCOUNT DILLON, M.A., F.S.A., Society of Antiquaries. 

The Rt. Hon. LORD COZENS-HARDY, Master of the Rolls. 

The Rt. Hon. LORD FITZMAURICE, M.A. 

*The Rt. Rev. BISHOP G. F. BROWNE, D.D., D.C.L., F.S.A. 

The Rt. Hon. LORD JUSTICE KENNEDY, F.B.A. (the late) Lincoln's Inn. 

The Rt. Hon. SIR FREDERICK POLLOCK, Bart., D.C.L., LL.D., F.B.A., 
Selden Society. 

Sir JAMES H. RAMSAY, Bart., M.A., D.L. 

Sir E. W. BRABROOK, C.B., F.S.A., London and Middlesex Archceological 
Society. 

Sir WILLIAM BYRNE, K.C.V.O., C.B., Gray's Inn. 

*Sir C. E. H. CHADWYCK-HEALEY, K.C.B., K.C., F.S.A., Selden Society. 

Sir HENRY HOWORTH, K.C.I.E., F.R.S., Royal Archceological Institute. 

*Sir FREDERIC G. KENYON, M.A., D.Litt., Ph.D., F.B.A., Director and 
Principal Librarian, British Museum. 

Sir VESEY KNOX, K.C., Gray '5 Inn. 

Sir SIDNEY LEE, Litt.D. 

Sir H. C. MAXWELL LYTE, K.C.B., F.S.A., F.B.A., Deputy Keeper of the 
Records. 

Sir EDWARD MAUNDE THOMPSON, G.C.B., D.C.L., LL.D., Litt.D., F.B.A. 

Sir ADOLPHUS WARD, Litt.D., LL.D., F.B.A., Master of Peterhouse, Cam- 
bridge. 

The Very Rev. the DEAN OF LINCOLN, D.D. 

The Very Rev. the DEAN OF SALISBURY, D.D. 

The Very Rev. the DEAN OF CARLISLE, D.D. 

*The Ven. ARCHDEACON CUNNINGHAM, D.D., LL.D., F.B.A. 

The Hon. JOHN ABERCROMBY, President, Society of Antiquaries of Scotland. 

Professor G. B. ADAMS, Ph.D., Yale University, U.S.A. 

Professor C. M. ANDREWS, Ph.D., Yale University, U.S.A. 

H. W. APPLETON, M.A., Professor of Ancient and Modern History, Univer- 
sity of Sheffield. 

ROBERT BAGSTER, F.S.A., British Archcrological Association. 

Professor J. F. BALDWIN, Vassar College, U.S.A. 



viii GENERAL COMMITTEE 

C. R. BEAZLEY, D.Litt., F.R.G.S., Professor of History, University of 
Birmingham. 

CHARLES BEMONT, Directeur-Adjoint a 1'Ecole des Hautes-Etudes, Paris. 

E. DE GRAY BIRCH, LL.D., F.S.A. 

Sir F. A. BOSANQUET, K.C., Inner Temple. 

P. HUME BROWN, M.A., LL.D., Professor of Ancient History and Palaeo- 
graphy, University of Edinburgh. 

OSCAR BROWNING, M.A. 

WILLIAM Mom BRYCE, M.A., Society of Antiquaries of Scotland. 

R. M. BURROWS, M.A., D.Litt., Ph.D., Principal King's College, University 
of London. 

W. A. CATER, F.S.A., British Archceological Association. 

Miss A. M. COOKE, M.A., Lecturer in History, University of Leeds. 

*J. F. CHANCE, M.A. 

PATRICK COOPER, M.A., University of Aberdeen. 

W. J. CORBETT, M.A. 

*H. W. C. DAVIS, M.A. 

The Rt. Hon. H. A. L. FISHER, M.A., LL.D., F.B.A., Vice-Chancellor, Uni- 
versity of Sheffield. 

The Hon. J. W. FORTESCUE, M.V.O., Librarian, Windsor Castle. 

EDWIN FRESHFIELD, LL.D., Pipe Roll Society. 

Rev. HENRY GEE, D.D., University of Durham. 

*G. P. GOOCH, M.A. 

A. J. GRANT, M.A., Professor of History, University of Leeds. 

Mrs. J. R. GREEN. 

*HUBERT HALL, F.S.A., Literary Director, Royal Historical Society; Secre- 
tary to the Royal Commission on Public Records. 

FREDERIC HARRISON, Litt.D. 

Professor C. H. HASKINS, Ph.D., Harvard University, U.S.A. 

H. D. HAZELTINE, Litt.D. 

*F. J. C. HEARNSHAW, M.A., LL.D., Professor of Mediaeval History, Univer- 
sity of London. 

W. S. HOLDSWORTH, D.C.L., All Souls Reader in English Law, University 
of Oxford. 

Sir COURTENAY P. ILBERT, K.C.B., K.C.S.I. 

Professor J. F. JAMESON, Ph.D., LL.D., Carnegie Institution, Washington, 

U.S.A. 

C. H. JENKINSON, M.A., Surrey Archaeological Society. 
EDWARD JENKS, B.C.L. 
C. S. KENNY, LL.D., F.B.A., Downing Professor of the Laws of England,. 

University of Cambridge. 
*C. L. KINGSFORD, M.A., F.S.A. 

*G. T. LAPSLEY, M.A., Ph.D., University of Cambridge. 
FELIX LIEBERMANN, Ph.D., LL.D., University of Berlin. 
W. A. LINDSAY (the late), K.C., D.L., Pipe Roll Society. 
A. G. LITTLE, M.A., Lecturer in Palaeography, Victoria University of 

Manchester. 

Colonel E. M. LLOYD, R.E. 
R. LODGE, M.A., Litt.D., LL.D., Professor of History, University of 

Edinburgh. 

Miss E. A. MCARTHUR, Litt.D. 
J. D. MACKIE, M.A., Lecturer in Modern History, University of St. Andrews. 

C. H. MclLWAiN, Professor of History and Government, Harvard University. 

U.S.A. 
Rev. J. P. MAHAFFY, C.V.O., D.D., D.C.L., LL.D., Vice-Provost of Trinity 

College, Dublin. 
*W. S. McKECHNiE, LL.B., D.Phil., Lecturer in Constitutional Law and 

History, University of Glasgow. 

D. J. MEDLEY, M.A., Professor of History, University of Glasgow. 

J. HEPBURN MILLAR, B.A., LL.B., Professor of Constitutional Law and 
Constitutional History, University of Edinburgh. 



GENERAL COMMITTEE ix 

J. H. MORGAN, M.A., Professor of Constitutional Law, University of London. 

GEORGE NEILSON, LL.D. 

C. W. C. OMAN, M.A., F.S.A., F.B.A., Chichele Professor of Modern 
History, University of Oxford. 

Colonel M. B. PEARSON, C.B., London and Middlesex Archaeological Society. 

W. PETIT-DUTAILLIS, Recteur de I'Universite" de Grenoble, Universite de 
France. 

L. O. PIKE, M.A. 

Professor H. PIRENNE, Universite de Gand. 

Sir H. B. POLAND, K.C., Inner Temple. 

A. F. POLLARD, M.A., Litt.D., Professor of Constitutional History, Univer- 
sity of London, Historical Association. 

F. M. POWICKE, M.A., Professor of History, University of Belfast. 
*G. W. PROTHERO, M.A., Litt.D., LL.D., F.B.A. 

R. S. RAIT, M.A., Professor of Scottish History and Literature, University 
of Glasgow. 

Professor LUDWIG REISS, The University, Berlin. 

*R. A. ROBERTS, formerly Secretary, Public Record Office. 

Sir ALBERT KAYE ROLLIT, D.C.L., LL.D., Litt.D., B.A., F.K.C.L., Univer- 
sity of London. 

J. H. ROSE, Litt.D., Reader in Modern History, University of Cambridge. 

J. H. ROUND, M.A., LL.D., Pipe Roll Society. 

A. FORBES SIEVEKING, F.S.A., Surrey Archceological Society. 

C. SANFORD TERRY, M.A., Burnett-Fletcher Professor of History and 
Archaeology, University of Aberdeen. 

]. TAIT, M.A., Professor of Ancient and Mediaeval History, Victoria Univer- 
sity of Manchester. 

*H. R. TEDDER, F.S.A., Treasurer, Royal Historical Society. 

T. F. TOUT, M.A., F.B.A., Professor of Mediaeval and Ecclesiastical History,. 
Victoria University of Manchester ; Historical Association. 

G. M. TREVELYAN, M.A. 

K. H. VICKERS, M.A., Professor of Modern History, Armstrong College, 
Newcastle-on-Tyne, University of Durham. 

Sir PAUL VINOGRADOFF, M.A., Hon. D.C.L., LL.D., F.B.A., Corpus Pro- 
fessor of Jurisprudence, University of Oxford. 

*BASIL WILLIAMS, M.A. 

J. W. WILLIS-BUND, F.S.A., Society of Antiquaries. 

H. E. MALDEN, M.A., 
Hon. Sec., R.Hist.S., Secretary to the Committee. 

* Members of Executive Committee. 



PREFACE 

BY 

THE RT. HON. VISCOUNT BRYCE, O.M., D.C.L. 

KING JOHN'S Charter of A.D. 1215, the Great Charter 
as it came in later days to be specially called by those 
who looked back to it with reverence, is dealt with in 
so many of its aspects by the eminent writers who 
have contributed to this volume that this preface need 
contain nothing more than a few general reflections 
on the place which it occupies in the history of 
English politics and English law. 

One such reflection is suggested by a comparison of 
English law with the only other legal system which 
holds an equally important place in the jurisprudence 
of civilized mankind. That system is the law of the 
Roman city which ultimately became the law of the 
ancient world^ and survives in the modern world as 
the basis of the codes of great nations like France, 
Italy, and Germany, and, in a more diluted form, of 
many other states. 

As Magna Carta is the first document of high legal 
significance for England, so for Rome the first such 
document was the Law of the Twelve Tables. In no 
other country, ancient or modern, can we find any 
body of legal rules which, framed at an early period 
in a nation's growth, has so powerfully influenced its 



Xll 



PREFACE 



subsequent development, as did the " Lex Duodecim 
Tabularum ". The nearest parallels are what we call 
the Law of Moses in the Pentateuch, and the Koran of 
Mohammed, but the differences are so great that it is 
hardly worth while to pursue a comparison. 

The Twelve Tables were enacted about four cen- 
turies before that remarkable expansion and modern- 
ization of Roman law which began in the last age of 
the Roman Republic, and Magna Carta four centuries 
before the days of Coke, Pym, and Selden, when the 
law and constitution of England passed into a new 
phase of development. Both the Charter and the 
Tables included what the Romans called " lus pub- 
licum " and "lus Privatum," " fons omnis publici privati- 
que Juris," says Livy. The distinction between these 
elements had not been clearly drawn, either in Rome 
or in England, at the time of their enactment. But it 
was the private element that turned out to be of most 
consequence in the Roman case, the public or constitu- 
tional element in the English. Both enactments arose 
out of political troubles. The Twelve Tables were 
prepared and passed to meet the demand of the Roman 
plebs for some formal and permanent definition and 
limitation of the arbitrary executive authority exer- 
cised by the consuls, and they contained rules which 
gave some protection to the civil rights of the in- 
dividual citizen. So likewise the Charter was de- 
manded by those who complained of the irregular 
and arbitrary violence of King John, and the re- 
strictions it imposed upon the Crown's action be- 
came the corner stone of English freedom. Its 
provisions, never repealed, though varied and to 
some extent amplified in subsequent instruments 



PREFACE xiii 

similarly extorted from subsequent monarchs, were 
solemnly reasserted in the famous declaration by 
Parliament in 1628 which we call the Petition of Right, 
and were finally re-enacted in the Bill of Rights of 
1689. Thus the Charter of 1215 was the starting-point 
of the constitutional history of the English race, the 
first link in a long chain of constitutional instruments 
which have moulded men's minds and held together 
free governments not only in England but wherever 
the English race has gone and the English tongue is 
spoken. The Bill of Rights was in the thoughts of 
those who framed the first Constitutions of Massachu- 
setts and Virginia when the North American Colonies 
renounced their allegiance to the British Crown ; and 
much of the document of 1689 was incorporated in 
those Constitutions. From them the old provisions, 
largely in the original words of the Great Charter, 
passed into the Federal Constitution of the United 
States when it was drafted in 1 787 and adopted, with the 
first ten amendments, between 1788 and 1791. Nor 
does the chain of historical sequence stop here. The 
Federal Constitution supplied a model for republican 
Constitutions enacted in later days. It was imitated by 
the republics of Spanish America when they threw off 
the yoke of Spain. It influenced the form which France 
from 1790 onwards gave to the successive frames of 
Government she adopted, and led to the placing in most 
of them of declarations of the primordial or so-called 
" Natural " Rights of Man. The positive and prag- 
matic phrases of Stephen Langton if it was he who 
was the chief draftsman of Magna Carta had now 
been transmuted by the spirit of Rousseau into wider 
and vaguer terms. Further influences may be traced 



XIV 



PREFACE 



in the constitution of the Swiss Confederation and 
those of other European countries. It seems not too 
fanciful to say that the prelates and barons of Runny- 
mede, building better than they knew, laid the founda- 
tions of that plan of Written or Rigid Constitutions 
which has now covered the world from Peru to China. 
The influence of the Law of the Twelve Tables upon 
the development of legal thought and institutions in 
later ages need not be followed out here, as it worked 
chiefly in the field of Roman private law. But two 
resemblances between that code, if code it can be 
called, and Magna Carta may be noted. Both had the 
character, to those who enacted them, not so much of 
what we call legal commands as of Solemn Covenants. 
Magna Carta is a series of engagements contracted by 
the Crown with the magnates of the realm, accepted 
by them, and authenticated by the King's Great Seal. 
So among the Romans one of the definitions of Lex is 
11 communis reipublicae sponsio ". It is a public " Stipu- 
latio ". The presiding magistrate interrogates the 
people in a " Rogatio " whether they wish to be 
bound by what he proposes. The people, if they 
accept, answer " Uti rogas ; " " Be it as you ask " ; 
and thus the obligation is constituted. There is a 
real meaning in this, though it may seem a point 
of form. Both moreover purport and this is a 
matter of substance to be in reality and fact not 
so much enactments of new law as declarations, 
explicit and precise, of pre-existing customary law. 
The Twelve Tables included some rules which were, 
if not new, at any rate doubtful, and some others 
plainly new. But in the main they were a digest of 
existing customs and regulations of procedure. Some 



PREFACE xv 

of the liberties which the barons claimed and some 
which the commonalty also desired, had, to a certain 
extent, been recognized in Henry the First's Charter 
of Liberties ; and John's concessions were not extorted 
grants of new rights but rather the solemn renunciation 
of old abuses, abuses so inveterate that they reappeared 
under his successors and had to be again renounced. 

Neither the Twelve Tables nor the Great Charter 
was established, like most modern Fundamental In- 
struments, in such a way as to make it unchangeable 
by ordinary legislative methods. That was a device 
reserved for later ages. And in point of fact many 
provisions of both became by degrees obsolete, be- 
cause inapplicable to the conditions of a constantly 
developing community. One enactment of the De- 
cemvirs was repealed within a few years, others were 
varied later. Yet down to the days of Cicero's youth 
boys learnt these ancient texts by heart as a "carmen 
necessarium," though Cicero adds "quas iam nemo 
discit ". Magna Carta had become so sacred that in 
the seventeenth century there would seem to have 
been lawyers who doubted whether it could be re- 
pealed by an ordinary statute. Parts of it have 
been in later times modified by Parliament ; and we 
have just seen some of them infringed or suspended 
by the Defence of the Realm Act of 1914. Yet other 
parts may be quoted to-day as binding not only in 
England but in the Courts of Australia or Illinois, just 
as the Twelve Tables could be quoted in the Courts 
of Thrace or Syria down to the days of Justinian, who 
made a clean sweep of all antecedent legislation. 
Both, it may be added, set in the directness and pre- 
cision of their language an example which had a 



xvi PREFACE 

healthy influence on the form of statutory enactments 
for many generations, until a time came, after the 
Antonine emperors, when rhetorical diffuseness de- 
praved the legislation of the later Roman monarchs and 
when in England, especially in Hanoverian days, the 
effort to attain completeness induced undue prolixity 
and a tedious enumeration of particulars. It is a part of 
the service which may be credited to both documents, 
that they helped to form exact habits of legal thinking 
and legal interpretation in both peoples, qualities to 
which the chief merits of both the two great systems 
of law that now rule the world may be ascribed. 

Passing from the legal to the wider historical aspects 
of the Great Charter, let us see what share may be 
assigned to it in the rendering of those services by 
which Britain has helped forward the cause of freedom 
and good government throughout the world. The 
first place among these services is often assigned to 
the development of representative government in the 
English Parliament. But the representative system, 
although more successful in England than elsewhere, 
was not peculiar to England. It may be deemed 
another service that she set, in the nineteenth century, 
the example of an extension of the right of the 
masses of the people to share in self-government. 
In this, however, the ancient republics had antici- 
pated her, and so had some few of the Swiss can- 
tons. Rather perhaps may we find the chief con- 
tribution of England to political progress, in the 
doctrine of the supremacy of law over arbitrary 
power, in the steady assertion of the principle that 
every exercise of executive authority may be tested 
in : a court of law to ascertain whether or no it in- 



PREFACE xvii 

fringes the rights of the subject. Does the "Law of 
the Land " warrant and cover the act done of which 
the subject complains? Though it is now generally 
held that the famous phrase " nisi per legale iudicium 
parium suorum vel per legem terrae," does not, as 
used to be supposed, constitute the basis of what we 
call "trial by jury," still it remains true that these 
words, and especially the declaration of the supremacy 
of the "Lex Terrae," are the critical words on which 
the fabric of British freedom was solidly set before a 
representative Parliament had come into existence. 
It was this guarantee of personal civil rights that 
most excited the admiration of Continental obser- 
vers in the eighteenth century, and caused the 
British Constitution to be taken as the pattern 
which less fortunate countries should try to imitate. 
If it be said, and truly said, that this fundamental 
principle could not have been maintained in England 
without the assertion by the Parliaments of the 
fifteenth and, again more forcibly and persistently, by 
those of the seventeenth century, of control over the 
power of the Crown, it is to be remembered that their 
efforts might not have succeeded had not the earlier 
resistance to that power by the men who secured 
Magna Carta created and fostered in the minds of 
the upper and middle classes that firm and constant 
spirit of independence, that vigilant will to withstand 
the aggressions of the executive, which overthrew 
Charles the First and expelled James the Second. 

Supreme power has now passed into the hands of 

the whole people, who not only enact the laws through 

their representatives but supervise administration by 

their control of the executive Ministers, so that con- 

b 



xviii PREFACE 

flicts between the law and the executive need no 
longer be feared. Where the people make the law, 
the risk of transgressions of the law by the servants 
of the people is but slender. Such dangers to liberty 
as may now be feared are of a different order. If they 
arise, they will arise from a tendency on the part of 
majorities to encroach by the exercise of legislative 
power on the sphere which ought to be reserved for 
the unchecked action of the individual citizen and the 
self-guided development of his own aims and purposes. 
We may hope that here in Britain that attachment to 
individual rights which has now by long tradition be- 
come instinctive in our race will preserve us, and 
preserve also those British peoples beyond the seas, 
who have inherited our spirit and our time-honoured 
traditions, from any such dangers, making us and 
them prudently watchful to keep legislative authority 
within its proper limits. One may say of Liberty 
what the Roman historian said of Empire : " It is pre- 
served by the same methods which achieved it ". The 
Spirit of Freedom is always the same, and has had, and 
will have, similar work to do for the welfare of man- 
kind, whether at Runnymede in 1215 or seven cen- 
turies later. 



INTRODUCTION 

BY 

H. E. MALDEN, M.A. 

THE seven hundredth anniversary of the granting of 
the Great Charter by King John occurred in June, 
1915. Some kind of celebration of the event was so 
likely to be undertaken that the Royal Historical 
Society determined that if such took place at all it 
should be directed by competent persons, and early in 
1914 organized a Committee for a due commemoration. 
The Right Hon. Viscount Bryce consented to act as 
Chairman of a Committee, which representatives of 
Universities, and learned Societies, and leading his-: 
torical scholars from the United Kingdom, America, 
and some other countries, were invited to join. The 
Archbishop of Canterbury, and the Lord Mayor of 
London, represented the continuity of English life 
from 1215-1915. A small executive Committee was 
appointed to arrange details, among which a visit to 
Runnymede and an address upon the spot were con- 
templated. By 1915 this intended celebration proved 
not desirable, nor indeed possible. The memory of 
the assertion of the principle of government by law 
was overclouded by the cares of the immense struggle 
to maintain that principle through force of arms. 



xx INTRODUCTION 

Several eminent scholars had, however, prepared 
papers upon certain points or aspects of the Great 
Charter, or on matters of cognate interest, and these 
it is thought well to present to the Fellows of the 
Royal Historical Society, and to preserve in book 
form for the general use of historical students. These 
papers, it may be said, were not written with any idea 
of sequence, nor as aiming at any complete comment 
upon all points of the Charter. The authors were 
free to offer such contributions as they chose. But 
there will, nevertheless, be found, running through 
several of them, a line of general agreement. The old 
uncritical admiration which found in the Great Charter 
something more than the germ of all the more im- 
portant parts of the Constitution and law of recent 
centuries has vanished from every place, except oc- 
casionally from Parliament and the public platform. 
The natural reaction which saw in the Charter merely 
the assertion of class privileges has begun to suffer 
from criticism in turn. Motives are indeterminate, 
even to those near at hand. Who knows all the 
motives of the Whigs of the Reform Bill of 1832? 
Who can confidently assert all those of Stephen 
Langton in 1215 ? 

But to those afar off the general tendency of actions 
is more clear. In effect, by ten years after the 
Charter was given, it was popularly accepted, when 
recast and repeated, as national, not only as baronial 
in its benefits, confirming liberties " tarn populo quam 
plebi ". The barons did more than they knew, per- 
haps more than they would have intended had they 
known it; but whatever the interpretation in their 
minds of " liber homo," the interpretation of the courts 



INTRODUCTION xxi 

soon gave it a wider scope than has sometimes been 
allowed to it by commentators. 

As has often been pointed out, those who asserted 
the rule of law, and provided a sort of privileged civil 
war for the vindication of that rule, had travelled but 
a little way upon the path of constitutional progress. 
But the rude awakening of our own age has again 
forced upon us this unfortunate fact of a yet imperfect 
society, that liberties of a class, of a nation, or of a 
world, are only secure for those who can in the last 
resort venture their lives for their defence, and have 
the means to make that venture successful. 

The present struggle for the rule of law explains 
the absence of some names from the list of contributors, 
and of some subjects which might have been treated. 
A German professor, well known for his mastery of 
early English law, once a friend of England, had 
promised a communication. A courteous letter, 
through Sweden " suum cuique tribuito " regretted 
his inability to contribute. The great French scholars 
to whom we owe so much light upon the reigns of the 
Angevin Kings, were necessarily preoccupied. It was 
hoped that from a Hungarian source we might have 
had a treatise on the likeness and differences between 
the privileges of the Anglo-Norman and Magyar 
nobility. A Belgian professor might have written on 
the parallels between our constitutional laws and the 
"Joyeuse Entree " of Brabant, and other Netherland 
liberties. We are fortunate, however, in securing the 
aid of Sefior Rafael Altamira upon the analogies of 
English and Spanish liberties. What we at home owe 
to the pious interest in the antiquities of their mother- 
land felt by the scholars of America, the following 



xxii INTRODUCTION 

pages show a little. We all know how much has been 
done by them elsewhere. 

There is a peculiar satisfaction, however, in an 
English celebration of a thirteenth century document 
and event. Here, as elsewhere, in the course of 700 
years all things have changed. But here, as not 
elsewhere, all things have changed by processes of 
development, which have often left names, offices, 
titles, and some more essential features of national life 
the same. Can any other country read at the begin- 
ning of its book of Statutes a law in the form in which 
it was made 692 years ago ? The national spirit and 
aspirations, which at all events adopted as their own 
the articles of Runnymede, are the same to-day as 
then. While no peer of the United Kingdom repre- 
sents in the male line any one of the barons of 1215, 
yet the blood of several of the latter flows in the veins 
of many Englishmen, Scots, and Irishmen, noble, 
gentle, and simple. The King wears, as the centre of 
a legal government, the crown which his ancestor 
John was admonished that he must wear in accordance 
with a law older than his dynasty. The titles of 
nobility, and of the archbishops and bishops who 
advised the Charter, remain. 

In one case at least an English peer, the Duke of Nor- 
folk and Earl of Arundel, is now lord of manors and 
castles which his ancestors in the female line held in 
1215. The bishops in 1917 hold in many cases the 
same houses and estates which their predecessors in 
title held when by their advice John gave the Charter. 
Langton had his house at Lambeth, Peter des Roches 
at Farnham Castle, where their successors live now, 
in the latter case in some of the same buildings. 



INTRODUCTION xxiii 

Our race across the seas claims an inheritance in 
liberties which were declared to be ancient at Runny- 
mede. 

There is something in this unbroken line of social 
and national descent akin to the ever-changing yet 
essentially permanent features of the stage upon which 
the national drama was enacted. 

The face of the country has been changed since 
1215, but it is the same land, and of all places in it 
Runnymede has probably changed among the least. 
Sir John Denham's Cooper's Hill looks across it, and 
up to Windsor and down to London, over more thickly 
inhabited distances ; a few inns and boat-houses, 
standing amid enclosures, fringe the river, but in the 
foreground a meadow by the Thames there was, 
meadows by the Thames remain. In 1215 the hay of 
the Commoners of Egham must have been ruined, 
unless the season was unusually early. The hay crop 
would now stand as an obstacle to a celebration upon 
the spot on the actual anniversary in the middle of 
June. 

Whether the place was the scene of any ancient 
meetings is unknown. Leland first advanced, with the 
boldness of the amateur etymologist, the derivation 
of the " Mead of Counsel " to explain the name. 
Certain topographical considerations in fact governed 
the selection of the place for a conference between 
John, who was at Windsor, and his barons whose base 
was London. A Roman road ran from the south-west 
towards the valley of the lower Thames, and when 
London had become the great commercial city of 
Roman Britain, in London it ended. Staines must be 
on or near the site of the Roman station " Ad Pontes," 



xxiv INTRODUCTION 

or "Pontibus". It would seem, from the name, that 
here must have been the earliest Roman bridge across 
the Thames, made perhaps before London was all 
important. There is another Roman road, recover- 
able in Sussex and Surrey in very short portions of its 
course, one of the longer is in Somersbury Wood near 
Ewhurst, which if continued in a straight line would 
hit the Thames near Staines. But the undoubted road 
from Silchester, known locally as the Devil's Highway, 
crosses Easthampstead Plain and runs through Vir- 
ginia Water, an artificial pond made in the eighteenth 
century, and heads directly towards Staines. When 
the succession no doubt of Roman bridges which 
crossed the low meadows subject to floods, as well as 
the river itself, fell into ruin, no one knows. But 
there is reason to believe that a bridge had been re- 
stored at Staines before 1215. In the Patent Rolls of 
Henry III, 1 29 July, 1228, is a table of tolls which the 
warden (" custos ") of Staines bridge may impose, " in 
auxilium pontis de Stanes reparandi et emendandi ". 
There is no reference to the bridge being newly made 
then, and the natural inference is that a bridge which 
needed repairs had been standing more than thirteen 
years. 2 

Here then was the obvious reason for the baronial 
host coming to Runnymede on their way to Windsor. 
They had marched from London by the Roman road, 
and had crossed Staines bridge. Runnymede was a 
good camping ground, with a good communication 

'P.R. 12 Hen. Ill, m. 2. 

2 The statement in Manning and Bray, "Hist, of Surrey," iii. 256, 
that John de Oxenford made Staines bridge in the reign of Henry III, 
quoting the Escheats of 24 Edw. Ill, No. 51, is a mistake. It only 
appears that he made a causeway leading to the bridge. 



INTRODUCTION xxv 

with London behind it. The local tradition which 
places the granting of the Charter in Magna Carta 
island in the Thames is contradicted by the Charter 
itself, " data in prato quod vocatur Runingmede ". The 
erroneous tradition was fixed by the lord of a Buck- 
inghamshire manor (the island is in that county), who 
put up a fantastic building with an inscription on the 
island in 1834, saying that it was the true spot. If 
there is any reason behind it further than the assump- 
tion by Mr. George Simon Harcourt that the notable 
event took place upon his land, it may be found in a 
passage where Matthew Paris, in "Chronica Majora," 
adds to Wendover's account of the treaty between 
the French Prince Louis and the Earl of Pembroke in 
1217, that it was negotiated "quadam insula," near 
Staines. Buckinghamshire must not rob Surrey of 
its greatest event. Surrey has also its own baseless 
tradition, perpetuated by an inscription, that the 
barons arranged their Articles in the caves under de 
Warenne's Castle at Reigate. Considering the attitude 
of John's cousin de Warenne, this would be equivalent 
to the Reform Bill of 1832 having been concocted in 
the cellars of Apsley House. Moreover the caves in 
-question were made for getting fine sand, and were 
valued as sandpits in a survey of the manor of Reigate 
in 1622. Runnymede, with the adjacent Longmead, 
and Yardmead, are in the manor of Egham, which 
formerly, and in 1215, belonged to Chertsey Abbey, 
and after the dissolution became the property of the 
Crown, though granted for terms of years to various 
holders. 1 At the time of the Parliamentary surveys 

1 The thirty-third clause of the Charter, forbidding weirs in the 
Thames, had been broken in the very home of its birth, for in 1332 



xxvi INTRODUCTION 

of the late King's lands in 1650 it appears as meadow 
land belonging to Egham manor. In 1811 there were 
some ten tenants who enjoyed the use of the land for 
hay from March to Old Lammas Day. After that date 
it was thrown open for grazing to the cattle of the 
tenants of the manor of Egham. An Enclosure Act hi 
1814 (54 G. Ill, c. 153), and the consequent Award 
made in 1817, divided it among nineteen holders and 
the Crown, as lord. In Runnymede proper there were 
over 71 acres. The adjacent Longmead, of 76 acres, 
was divided among the Crown and nine tenants. ' The 
whole might be stocked with horses and cattle from 
old Lammas Day to 13 November, and with sheep from 
13 November to 2 February. From 2 February to- 
August it is to be left for hay. The central part was 
and is left unenclosed. But the Act stipulated that 
any enclosures which should interfere with the hold- 
ing of Egham races upon the usual course at the end of 
August must be removed every year. William IV gave 
a plate to be run for at the meeting, and on the first 
occasion, in 1836, being present, the races coinciding 
with festivities at Windsor for his daughter's marriage,, 
made a speech, in which a contemporary reporter found,, 
"good feeling and patriotism equally blended". The 
King declared that " neither himself nor any other could 
be present without calling to mind that it was here that 
our liberties were obtained and for ever secured, and 
that we were here to enjoy those liberties and sports 
which he would with his utmost power ever protect 

Chertsey Abbey had a weir in the Thames at a place called la Huche 
in Egham, with a fisherman's cottage beside a certain island. This 
was at the east end of Egham, below Runnymede (Chertsey Abbey. 
Court Rolls, 6 Edw. Ill ; Lansd. MS. 434, f. 39). 



INTRODUCTION xxvii 

and foster". His Majesty forebore to specify which 
clause of the Charter secured the liberty of horse-racing. 
The rather unusually disreputable crowd which fre- 
quented Egham races probably never at any other time 
recalled at all the more momentous gathering. The 
races ceased in 1884. 

But with Aristophanes we may say : 

/cal ravra pev Srj o-jjuKpa Ka7n,%a)pi,a 

and revert to the studies of a great subject which 
follow. 

The first paper was delivered as an address by 
Prof. W. S. McKechnie in 1915, before the Royal His- 
torical Society and some members of the Magna Carta 
Committee, the Right Hon. Viscount Bryce being in 
the chair. It was the only celebration in the seven- 
hundredth year. It justifies the title Great as applied 
to this Charter, and explains how every succeeding age 
builded upon it conclusions to suit its own aspirations. 
When we read the glosses of the school of Coke we 
may be reminded of an ingenious preacher, who 
founds upon a simple text consequences which were 
far from the mind of the original writer. With 
Moliere's character we may exclaim, " tant de choses 
en deux mots " ; but it is hard to deny a great value 
to that which contained a principle of such varied 
practical application. 

Prof. George Burton Adams, of Yale, U.S.A., 
follows with an article upon the Bull and the letter 
of Innocent III condemning the Charter, and prints 
the letter itself in an accessible form. The grounds 
for the Pope's interference were not the feudal supre- 
macy which John had conceded to him, but rather his 
position as ecclesiastical arbiter of European quarrels, 



xxviii INTRODUCTION 

and special guardian of the rights of a professed 
crusader. That the thirteenth century Court of Inter- 
national Appeal made a great mistake in its excursion 
into English national politics, is more unfortunate 
than surprising. 

Dr. J. Horace Round contributes a penetrating 
criticism upon the distinction between the lesser 
barons, who by clause 14 were to be summoned "en 
bloc" to Councils, and the "Milites" of the Charter. 
It will be a reminder needed by some, to whom com- 
ment has become more familiar than the words com- 
mented upon, that " barones minores " are not so 
named in the Charter at all. 

The barons in 1255 are said to have appealed to 
Clause 14, concerning the writ of summons, which 
was not repeated in the reissues of the Charter. 1 Is 
it possible that the many copies of the first issue of 
1215 were in fact more numerous, or more generally 
accessible, than the reissues which should have super- 
seded them ? Or, to draw a suggestion from Prof. 
Mcllwain's paper, was what had once been declared 
to be ancient practice considered binding, later laws 
notwithstanding ? 

Prof. Sir Paul Vinogradoff, and Prof. F. M. 
Powicke deal with the famous clause 39, "liber homo," 
" legale iudicium parium suorum," and "lex terrae ". 
Too much cannot be written upon it by competent 
people. The clause is considered from slightly differing 
standpoints, but not with very different conclusions. It 
is here that the expansible nature of the Charter, as 
society expanded, is so clearly to be seen. " Liber 
Homo " is a very Proteus with whom to grapple, 
he assumes many shapes, but he was not always a 
3 Matt. Paris. " Chron. Majora," v. 520. 



INTRODUCTION xxix 

military tenant only. John had fifteen years before 
1215, in a charter, 1 greeted as "liberi homines" the 
men of Kingston upon Thames, who had all in Domes- 
day been merely villeins on ancient demesne. 

Prof. Mcllwain, of Harvard, U.S.A., deals with 
Magna Carta and the Common Law, in an exhaustive 
treatise upon the whole subject of ancient custom, 
statute law, and ordinances. 

Dr. H. D. Hazeltine, U.S.A., and Emmanuel Col- 
lege, Cambridge, treats of the inheritance in the Charter 
of the American colonies before and after the Declara- 
tion of Independence. 

Senor Rafael Altamira, of Madrid, reminds us that 
in the early Middle Ages England was far from having 
a monopoly of constitutional liberties, and that there 
may be positive influence from the Pyrenean lands 
upon English constitutional developments. Certainly 
the elder Simon de Montfort, when in the November 
of 121 2 he settled the affairs of the conquered Albigen- 
sian lands, called a Parliament at Pamiers, which was 
attended by barons, clergy, knights, and citizens, ante- 
dating by fifty-three years his more famous son's 
Parliament after Lewes. The device of a Parliamen- 
tary Committee to do the real business, not unknown 
in England and stereotyped in Scotland, was employed. 
Two bishops, a Templar, a Hospitaller, four French 
knights, two Languedocien knights, and two Langue- 
docien burgesses were the " Lords of the Articles 'V 2 

i Chart. R. I John m. 7 ; Cart. Antiq. ss. 8. This is the first ex- 
tant Charter of Kingston (anno dom. 1200). The " liberi homines " were 
not a new settlement beside the ancient villani, for they held the 
villein-lands. 

a C. De Vic et J. J. Vaissete, " Histoire Generale de Languedoc," ed. 
Dulaurier, etc., vol. vi. 396, etc. We may compare with c. 12 of 



xxx INTRODUCTION 

Both the younger Simon and Edward I had ruled 
Gascony, and the latter had seen Spain. But we may 
hesitate to yield the palm to the Spanish kingdoms in 
the practical attainment of liberties. Spanish constitu- 
tional phenomena have yet to be studied as fully as 
those of England, and Senor Altamira admits that 
generalization is so far premature. When English 
constitutional studies were younger the tendency was 
to exaggerate the evidence of early popular liberties. 
When those of Aragon and Castile have been as ex- 
haustively explored, a similar shrinkage of claims may 
follow. At any rate, moderation, slow advance, a 
practical sense aiming at the necessary and the attain- 
able from time to time, with the continuance which 
was the fruit of these, were what made English con- 
stitutional gains solid. 

Finally, Mr. Hilary Jenkinson, late of the P.R.O., 
now Captain R.G.A., gives an extremely interesting 
review of the financial organization, or disorganization, 
of the reign of John, drawn from the Records. It 
tends to show that by some one, perhaps by the King 
himself, some effort was being made to introduce 
method into business which had outgrown its earlier 
machinery. 

The editor must return hearty thanks to Mr. F. A. 
Kirkpatrick, M.A., F.R.Hist.S., for the translation of 
Senor Altamira's paper; to Mr. C. Johnson of the 
Record Office for the correction of Mr. Jenkinson's 
proofs ; and to Prof. McKechnie for invaluable help 

the Charter that in Languedoc vassals were not tallaged without con- 
sent ; except in the three cases of ransom of the Lord, marriage of 
each of his daughters, and an expedition over seas, sc. a crusade. 
*" Tallagium " seems here to equate " auxilium " (ibid. vi. p. 939). 



INTRODUCTION xxxi 

in the reading of proofs, doubly useful when it was 
impossible to send some of these across the seas 
for the final corrections by the authors. Nor is his 
debt to the greatest authority upon the Charter con- 
fined to this alone. 

By arrangement Dr. Hazeltine's paper has appeared 
already in the "Columbia Law Review," Vol. XVII, 
January, 1917. 



MAGNA CARTA (1215-1915)- AN ADDRESS 
DELIVERED ON ITS SEVENTH CENTEN- 
ARY, TO THE ROYAL HISTORICAL 
SOCIETY AND THE MAGNA CARTA 
CELEBRATION COMMITTEE. 

BY PROFESSOR WM. S. McKzcHNiE, LL.B., D.PHIL. 

SEVEN hundred years ago, at a meadow on the Thames 
between Staines and Windsor, known as Runnymede, 
a spot thereafter hallowed for all lovers of England and 
of freedom, King John, bending before a storm he had 
raised but could not lay, set the great seal of England 
to a Charter of Liberties. The event proved memor- 
able in many ways, but pre-eminently because of its 
clear enunciation of the principle that the caprice of 
despots must bow to the reign of law; that the just 
rights of individuals, as defined by law and usage, 
must be upheld against the personal will of kings. 

John Lackland, in acceding to the demands of his 
barons, under picturesque and memorable circum- 
stances, tacitly admitted the doctrine of later con- 
stitutional law that rulers are accountable for the 
use they make of their sovereign powers. The royal 
surrender at Runnymede thus presaged the darker 
tragedy enacted at Whitehall, four centuries later, 
when the chief exponent of the Stewart doctrine of 
the Divine Right of Kings died a martyr to his faith. 
In 1215, King John, sorely against his will, was forced 
to take the first painful step on that road of constitu- 
tional progress that led, in the course of centuries, to 
the firm establishment of the modern doctrines of the 

i 



2 MAGNA CARTA (1215-1915) 

Royal Impersonality, and the Responsibility of Minis- 
ters for the actions of their King. 

The events that led to so notable a surrender 
must be briefly told. John's father, Henry Planta- 
genet, a prince endowed with a double portion of the . 
untiring vigour, the ability, and the hot blood of the 
race of Anjou, had prepared strong foundations for 
his English throne. In organizing an efficient ad- 
ministrative system, he had strained to the utmost 
every prerogative of the Crown, and reduced to the 
narrowest limits the franchises and privileges and 
independence of the great feudatories, his earls and 
barons. With one hand he had increased in fre- 
quency and amount every one of the galling feudal 
services and incidents performed by his vassals ; with 
the other, he had curtailed their profitable franchises, 
their rights of holding courts and trying prisoners. 

These, then, were the two chief sets of feudal 
grievances felt in the thirteenth century increase of 
feudal burdens and curtailment of feudal privileges 
that made the barons restive under even the indomit- 
able energy of the formidable Henry. Under Henry's 
hot-tempered sons, Richard and John, both forms of 
oppression were pressed home more ruthlessly on the 
tenants of the Crown ; and a third set of grievances 
was added in the failure of both these princes, for 
different reasons, to continue the efficient, orderly 
system of Government for which the barons under 
Henry had paid so heavy a price ; and in the employ- 
ment of a class of unscrupulous foreign adventurers 
who were placed as officers of the royal household 
and as sheriffs or bailiffs in every county of the land. 

Every feudal service and incident was made more 
galling by the stringent methods of enforcement John 
adopted. Scutages, in particular, or money paid in 
commutation of actual military service in the field, 



MAGNA CARTA (1215-1915) 3 

increased in frequency and in amount, and became 
more burdensome from the rigorous manner of their 
exaction. Every rule of the unwritten but well- 
recognized feudal law was broken by John and his 
horde of unbridled mercenaries, such as Engelard 
of Cigogne, and Geoffrey of Martigny and their as- 
sociates branded by name in the fiftieth chapter of 
Magna Carta. Cruel private wrongs, inflicted by 
John as a man, added to the growing flame of re- 
sentment kindled by his extortions, lawlessness, and 
inefficiency as a ruler. 

By 1213, the barons, seething with discontent, 
only waited an opportunity to demand redress, with 
weapons in their hands. Direction and point and 
unity of action were given to their endeavours when 
Archbishop Stephen Langton, a name ever to be 
honoured by the heirs of English liberty, produced a 
copy of the Coronation Charter, granted in the year 
noo by John's great-grandfather, Henry I, as a model 
from which they might begin, at least, to formulate 
their claims for reform of abuses. 

Only a fit occasion was needed for the rebellion to 
break forth ; and that occasion came in the autumn of 
1214, when John set sail from France, vanquished and 
humiliated by the complete failure of his grandiose 
schemes for winning back from Philip Augustus the 
lost French provinces of the Angevin inheritance, 
by means of a grand alliance, with the Emperor as its 
central figure. Returning, discomfited, on 15 October, 
1214, John found himself confronted with a domestic 
crisis unique in English history. The northern barons 
took the lead in demanding redress. Their cup of o 
wrath, that had long been filling, overflowed when a / 
new scutage, at the unprecedently high rate of three 
shillings for each knight's fee, was demanded. 

Roger of Wendover narrates how, after a futile 



4 MAGNA CARTA (1215-1915) 

conference with John, on 4 November, the magnates 
met at Bury St. Edmunds " 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 ". After binding themselves 
by a solemn oath to take united action against the 
King, the barons separated to prepare for the resort 
to arms, the muster being fixed for Christmas. The 
covenanters kept their tryst; a deputation from the 
insurgents met John in London at the Temple on 
6 January, 1215; and a truce was patched up till 
Easter. 

In April, the northern barons again met in arms 
and marched southward to Brackley. They were 
met there by emissaries from the King to inquire 
as to their demands ; who took back with them to 
John a certain schedule the rude draft that was 
afterwards expanded into the baronial manifesto that 
is to-day exhibited to the public in the British Museum 
in the same case with Magna Carta, commonly known 
as the "Articles of the Barons," but describing itself 
more fully and accurately as " Capitula quae barones 
petunt et dominus rex concedit ". 

John's consent, however, was not to be easily 
obtained. When the embassy bore back these de- 
mands to Wiltshire, where the King then was, John, 
livid with fury, declared, with his favourite blasphe- 
mous oath, that he would never grant them liberties 
that would make himself a slave ; asking sarcastically, 
" Why do not the barons, with these unjust exactions, 
demand my Kingdom ? " 

On 5 May, the barons, having chosen as their 
leader, Robert Fitzwalter, acclaimed by them as 
" Marshal of the Army of God and Holy Church," 



MAGNA CARTA (1215-1915) 5 

performed the solemn feudal ceremony of diffidatio, 
or renunciation of their fealty and homage, a for- 
mality indispensable before vassals could, without 
infamy, wage war upon their feudal overlord. Ab- 
solved from their allegiance at Wallingford by a 
Canon of Durham, they marched on London, on the 
attitude of which all eyes now turned with solicitude. 
When the great city opened her gates to the insur- 
gents, setting an example to be immediately followed 
by other towns, she practically made the attainment 
of the Great Charter secure. The Mayor of London 
thus takes an honoured place beside the Archbishop 
of Canterbury among the band of patriots to whose 
initiative England owes her Charter of Liberties. 
John, deserted on all sides, and with an Exchequer 
too empty for the effective employment of mercenary 
armies, agreed to a conference on the nth day of 
June, a date afterwards postponed till the I5th of 
the same month. 

It was on 15 June, then, in the year 1215, that 
the conference began between John, supported by a 
slender following of half-hearted magnates, upon the 
one side, and the mail-clad barons, backed by a 
multitude of determined and well-armed knights, 
upon the other. The conference lasted for eight 
days, from Monday of one week till Tuesday of the 
next. On Monday the i5th, John set seal to the 
demands presented to him by the barons, accepting 
every one of their forty-eight "Articles," with the 
additional " Forma Securitatis " or executive clause, 
vesting in twenty-five of their number full authority to 
constrain King John by force to observe its provisions. 

This was merely a preliminary measure. Numer- 
ous minor points had yet to be adjusted before the 
final settlement, which took place on Friday, 19 June, 
when the completed Charter, containing the substance 



6 MAGNA CARTA (1215-1915) 

of the Articles in an altered sequence, and with numer- 
ous additions and amendments as to points of detail, 
was also sealed, not merely in duplicate or triplicate 
but in considerable numbers, each of the great Eng- 
lish Cathedral churches in particular receiving a certi- 
fied parchment for its own. Four of these originals 
still exist, two of them in the British Museum, one at 
Lincoln, and one at Salisbury. The more famous of 
the Museum copies, originally deposited in Dover 
Castle, is now scarred by the marks of fire and in 
part illegible. 

Throughout the conferences, as in the discussions 
and embassies that preceded them, Stephen Langton 
played the leading part, alike in giving direction and 
unity of aim and moderation to the counsels of the 
barons, in preventing complete rupture of diplomatic 
relations, in pressing the barons' just claims upon the 
King, while remaining a faithful servant of the best 
interests of the Crown, and perhaps also in focussing 
the baronial demands, and thus accepting in some sort 
the responsibilities of an editor in the drafting of the 
actual clauses of Magna Carta. The Great Charter, 
whose weighty declaration " Quod Anglicana ecclesia 
libera sit," has helped to build into one whole the 
rights of the national Church with the constitutional 
liberties of the nation, so that they should act as 
mutual buttresses, was thus merely repaying the 
obligation it owed to the greatest of English pri- 
mates. 

When John, on that Friday morning of a memor- 
able June, set seal to the completed record of his 
surrender, known to contemporaries as " Carta Liber- 
tatum,"or " Carta Baronum," or "Carta de Runnymede," 
and to after-ages simply and pre-eminently, as "The 
Great Charter," he had no intention of being bound 
by his promises longer than circumstances compelled 



MAGNA CARTA (1215-1915) 7 

him. The wax on which the great seal had been 
impressed had scarcely hardened when John appealed 
to Rome for leave to repudiate his consent, alleging 
his intention of going on Crusade. In response, 
Innocent III issued a Bull, in which he sternly for- 
bade, under ban of anathema, that John should ob- 
serve the Charter, or that the barons and their 
"accomplices" should exact its enforcement. At a 
Lateran Council, Innocent excommunicated all those 
English barons who had "persecuted" his liegeman 
"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 ". 

Meanwhile, the points at issue between the English 
King and his feudatories had passed from the sphere 
of conferences, legal documents and diplomacy to the 
sphere of civil war. The insurgents, in their urgent 
need, invited the aid of Louis, son of the French 
King, offering him the rich guerdon of the Crown of 
England. 

The fortunes of war still trembled in the balance, 
when John's death at Newark on 19 October, 1216, 
and the consequent desertion of the French Prince's 
cause by many of the English barons, paved the way 
for the healing of internal discords on a peaceful and 
permanent basis. William the Marshal, acting as 
Regent for the boy King, son and heir of John, ac- 
cepted and confirmed the Great Charter in young 
Henry's name, subject to certain omissions and modi- 
fications, as the basis of his future scheme of Govern- 
ment. Confirmations of the Charter were accordingly 
issued in 1216, on Henry's accession, and in 1217, 
when it was arranged by treaty that Louis of France 
should renounce his pretensions to the English throne 
and depart from England ; and, finally, in Henry's 
third Great Charter, impressed with his own seal in 



8 MAGNA CARTA (1215-1915) 

1225, Magna Carta took its definitive shape, assuming 
the form, word for word, in which it stands to-day as 
the earliest enactment on the Statute Rolls of England. 

Thenceforward the almost sacred text of the Great 
Charter has remained fixed and stereotyped, together 
with that of the Forest Charter which, issued in 1225 
for the first time as a separate document, formed its 
natural complement, the two being confirmed together 
in future reigns, without suffering variation in one jot 
or tittle. 

New confirmations in 1237 and 1253 were accom- 
panied by solemn ceremonials, repeated on several 
occasions during the reign of Edward I. The con- 
stitutional importance and results of the "Confirmatio 
Cartarum" of 1297 are known to all; and of later 
confirmations, Coke has counted fifteen under Edward 
III, eight under his grandson Richard, six under 
Henry IV, and one under Henry V. No further 
confirmation was required thereafter, for the Great 
Charter had by that time been woven inextricably into 
the fabric of the national law and the national life. 

Such, in brief, were the stages in the genesis of the 
Great Charter of English liberties. From even the 
hastiest examination of these facts, one question 
emerges and presses for an answer. Whence did the 
Charter acquire the right to be described, without 
qualification, and without rival, as being " Great " ? 
Why did the granting of it mark an epoch in English 
history, and perhaps in the history of civilization ? 
Whence came its world-wide fame ? 

To begin with, it is obvious that its title to distinc- 
tion cannot be exclusively derived from any one of its 
isolated characteristics ; for its chief merits, in the 
eyes of different ages, have not always been the same. 
Gazing backwards over the crowded centuries that 
separate the present from the day when John surren- 



MAGNA CARTA (1215-1915) 9 

dered to the mailed fists of the feudal host at Runny- 
mede, is it possible to estimate the stages by which 
the prestige of Magna Carta has slowly been built up ? 
The task is no easy one ; but it would seem that three 
separate periods may be distinguished, in each of 
which the chief merits of the Charter have been 
differently rated, being found respectively in its 
reference to the present, the future, and the past. 

THE FIRST EPOCH. 

The importance of the Charter for the men of 1215 
did not lie in what forms its main value for the 
constitutional theorists of to-day. To the barons at 
Runnymede its merit was that it was something 
definite and utilitarian a present help for present ills- 
To them, it was by no means what it became to the 
English lawyers and historians of a later age, who 
looked on it as something intangible and ideal, a 
symbol standing for the essence of the Constitution, 
a bulwark of English liberties. 

To the barons, every clause was valued because it 
gave relief from a current wrong; little they thought 
of its influence on the development of constitutional 
liberty in future ages. The individual Crown tenant 
smarted under the steadily increasing burden of feudal 
^exactions. His scutages were more frequent and at a 
higher rate. On succeeding to his fief, he had been 
forced to pay a relief of an amount bounded only by 
the limits of John's greed. If his father's lands had 
fallen into wardship, on coming of age he found them 
exhausted and laid waste. When he died, his widow 
and children would be subjected to a host of harrying 
and unjust exactions. In Magna Carta he sought an 
immediate remedy to these embittering ills. The 
same Crown tenant found that by the insidious ex- 
tension of the use of certain royal writs, the profit- 



io MAGNA CARTA (1215-1915) 

able jurisdiction of his court-baron was being infringed, 
and his authority as a local magnate undermined. He 
found too that where the royal justice was beneficial, 
it was fitfully administered ; and that the same upstart 
aliens, on whom John bestowed in marriage the best- 
dowered heiresses of the realm, were given a free hand 
to abuse the powers of the lucrative offices that were 
showered upon them. To Magna Carta the baron 
looked as an immediate end of all these abuses and 
irregularities. 

No contemporary estimates of the value of Magna 
Carta, considered as one whole, are extant. The 
biographer of William the Marshal excuses himself 
from discussing the Charter and the Civil War on the 
ground that " there were too many incidents which it 
would not be honourable to recount ". The chief con- 
temporary source of information is a Chronicle com- 
posed by a minstrel who visited England in the train 
of Robert of Bethune, one of John's familiars, who 
gives a fragmentary catalogue of particular clauses 
rather than a general estimate. 

The provisions of the Charter which this trouba- 
dour found worthy of mention were the clauses that 
redressed three abuses, namely the "disparagement'" 
of heiresses, the loss of life or limb for killing deer, 
and the encroachment on feudal courts, and the 
clause appointing the baronial executive committee. 
The selection of these four topics as of outstanding 
value gives point to the view already expressed that 
to the men of 1215 Magna Carta was an intensely 
practical document, valued as an immediate remedy of 
present ills, with nothing whatever of the glamour of 
romance. 

THE SECOND EPOCH. 

By the Stewart era, if not earlier, a marked change 
had taken place. After a period of comparative neg- 



MAGNA CARTA (1215-1915) n 

lect, the Great Charter established new claims to popu- 
lar 'esteem when it proved its usefulness as a shelter 
against the stretches of prerogative by a James or 
Charles Stewart. It is interesting to compare the 
glowing rhetoric of Coke with the colder estimates 
contemporary with Magna Carta. Speaking of one of 
the Charter's famous clauses, Sir Edward Coke breaks 
thus into rhapsody : "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 ". 

By that age the Charter had become, too, a power- 
ful instrument of reform in the hands of the leaders 
of the parliamentary opposition to the arbitrary 
Government that accompanied the Stewart doctrine 
of the Divine Right of Kings. It became indeed the 
strongest link that bound together past and future in 
the constitutional development of English freedom. 
It served this purpose all the better, because of the 
antique flavour of its language in redressing old-world 
abuses of which the seventeenth century had forgotten 
the meaning. The very fact that many of the feudal 
grievances of 1215 had died a natural death and been 
forgotten centuries before the struggle with the 
Stewarts began; that much of its phraseology was 
no longer understood, made it possible for Coke and 
Hampden, Eliot and Pym and Hakewell, to give to 
its numerous clauses meanings that favoured their 
own aspirations in the cause of constitutional pro- 
gress. For its seventeenth-century exponents the 
Charter's great value lay thus in its bearing on the 
future. By discovering precedents for a desired 
reform in some obscure passage of Magna Carta, a 
needed innovation might be readily represented as a 
return to the time-honoured practice of the past. The 



12 MAGNA CARTA (1215-1915) 

veneration with which his contemporaries viewed the 
antiquarian and black-letter learning of Sir Edward 
Coke, that unrivalled master of the intricacies of the 
common law, secured the unquestioned acceptance of 
his declaration of what exactly had been meant by 
obscure chapters of the Charter. The Great Charter, 
as enshrined in the imaginations of the parliamentary 
leaders of the Puritan Rebellion was, to a great extent, 
the creation of Coke's legal intellect. It has been 
contended, indeed, in a brilliant and still recent article, 
under the startling title of " The Myth of Magna 
Carta " that no Charter really existed to correspond 
with the conceptions formed of it by the leaders of 
the Long Parliament ; and that Coke was the creator 
of the Charter, or of the " Myth " which alone had 
political significance or value. 

It seems safer, however, to maintain that there are 
two Great Charters (or two aspects of one charter) 
each of which, valuable in its own sphere and period, 
has rendered inestimable services to the growth of 
sound theories of Government the original feudal 
charter, and the charter of seventeenth-century inter- 
pretations. Part, at least, of the greatness of the 
Charter would thus seem to lie, 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 people of 
England in later ages. 

THE THIRD EPOCH. 

In our own day, when the privilege of living under 
the best constitution in the world has come to be more 
lightly valued, by a generation who are prone to take 
their heritage for granted, Magna Carta is no longer 
resorted to as an indispensable storehouse of pre- 
cedents for desired reforms. Its chief value is not 



MAGNA CARTA (1215-1915) 13 

now for its bearing on the present, as it was to the 
men of 1215, nor on the future as it was to the men 
of 1628 or 1688, but as a helpful means of recon- 
structing the past. The vivid glimpses that the 
Charter gives us of life in England in the early 
thirteenth century open, as it were, a window into 
the past. To understand the Charter aright in all 
the clauses of its sixty-three chapters, traversing, as 
these do, fields both wide and various, requires inti- 
mate knowledge of every phase of mediaeval England, 
whether feudal, social, economic, legal, or political. 
From the many points at which it touches the life 
and customs of the Middle Ages, its elucidation af- 
fords ample illustration of the principles that must 
animate every teacher of history, who seeks to gain 
the permanent interest of his hearers. That root 
principle is the necessity of never, for one moment, 
forgetting the closeness of the tie that binds the dead 
past to the living present. There is no document, 
however dry and obsolete it may to-day appear, 
which did not spring from a human situation that 
was once alive with hopes and fears. The pigeon- 
holes of a lawyer's office, with their scores of unin- 
teresting-looking documents, tied neatly into bundles 
with red tape, are, as it were, the fossil bones of 
human ambitions and passions and tragedies that 
have long since been struck cold. To the eye of ima- 
gination, however, there shines through every one 
of them, some ray of the sentiments and emotions 
with which they were once instinct. The lumbering 
clauses of the Articles of his Deed of Partnership 
cannot quite conceal the eager hopes of the young 
merchant making a first start in life; the Proceed- 
ings in Bankruptcy mark the close of a long-drawn 
agony ; the Last Will and Testament suggests 
thoughts that run through the whole gamut of the 



i 4 MAGNA CARTA (1215-1915) 

infinite pathos of human life. Similar results flow 
from the application of imagination to any historical 
document, and notably is this true of the interpre- 
tation of Magna Carta. Read this feudal Charter 
apart from its historical context and without any 
effort of imaginative sympathy; and taking it thus, 
dull clause by clause, you will find it wearisome to 
extinction. But read it in the light of all that is 
known of life in the Middle Ages ; read it in the 
light of the human passions and ambitions and wildly 
beating hopes of the barons in whose interests it was 
framed ; read it in the light of its magnificent histori- 
cal setting; and, behold, you have transformed the 
whole ! What is the writ prcecipe, or the assize of 
novel disseisin, or the crown's right of prerogative 
wardship to the men of to-day? Nothing, if we are 
ignorant of the once living context. Much, if we 
have the sympathy and historical insight to set them 
in their true perspective against a background of 
mediaeval life. 

The problem then, for the historical teacher, as for 
the historical researcher, is how best to reconstruct 
the once full-blooded life of the past out of the dry 
bones that now cumber the ground. The Hebrew 
Prophet, Ezekiel (ch. xxxvii., verses i to 10) has 
described how this miracle comes to pass : " The 
hand of the Lord ... set me down in the midst of 
the valley which was full of bones, and said unto me. 
. . . Prophesy upon these bones, and say unto them, 

ye dry bones, hear the word of the Lord. ... So 

1 prophesied as I was commanded ; and as I pro- 
phesied, there was a noise, and behold a shaking, and 
the bones came together, bone to his bone. And when 
I beheld, lo, the sinews and the flesh came up upon 
them, and the skin covered them above ; but there 
"was no breath in them. ... So I prophesied, as he 



MAGNA CARTA (1215-1915) 15 

commanded me, and the breath came into them, and 
they lived, and stood up upon their feet, an exceed- 
ing great army." So only by the spirit of sympathy 
and the breath of historical imagination can the dry 
bones of history be made to live again. 

The nature and the motives of the interest that is 
to-day taken in Magna Carta are thus widely different 
from those that influenced the men of the seventeenth 
century, and both are different from those of the 
thirteenth ; it is therefore useless to seek for any one 
quality as the sole source of the Charter's fame. 

It is further plain that its value cannot lie in any 
principle of logical arrangement ; for the chapters are 
grouped in a disorderly manner, as though they had 
been jotted down exactly as they occurred to the 
memory of the framers, and that hurriedly in case 
they might be quickly again forgotten. The time now 
available makes it impossible, if indeed it were desir- 
able, to give a detailed account of the sixty-three 
chapters of Magna Carta or even to attempt their 
classification; while a mere catalogue would serve no 
useful end. 

There is certainly no one clause to which the chief 
value of the Charter can be exclusively traced. No such 
monopoly can be claimed for the twelfth and fourteenth 
chapters, limiting the King's power of imposing aids 
and scutages without the " commune concilium " of the 
realm ; nor for the thirty-ninth, which gave security of 
life and property against John's arbitrary interference, 
by affording the protection of "judicium parium " ; nor 
for the famous fortieth chapter, that declared, in oft- 
quoted words, " To no one will we sell, to no one will 
we refuse or delay right or justice " ; nor can it be 
claimed even for that extraordinary sixty-first chapter, 
which provided machinery for enforcing all the rest, by 
means of a committee of twenty-five of the baronial 



16 MAGNA CARTA (1215-1915) 

opposition to whom John granted authority, under 
certain conditions, of coercing him by the forcible 
seizure of his castles, lands, and possessions. 

One who searches for the causes of the Charter's 
greatness must thus look elsewhere than to even the 
most famous of its isolated provisions. The elements,, 
indeed, that have contributed to the constitutional 
influence of Magna Carta are numerous and varied. 
While an attempt to classify these elements, on any 
principle of absolute mutual exclusion, would be 
artificial and stultifying, they may yet, perhaps, be 
regarded as roughly falling under the seven following 
heads : the inherent merits of the Charter ; its historical 
setting; its continuity with the past; its continuity 
with the future ; the number and solemnity of its 
confirmations ; its flexibility ; and its success in taking 
hold upon the popular imagination. The Great Charter 
is famous : 

First. Because of its inherent merits ; because of 
its moderation ; the wide orbit of its range ; its pre- 
ference for practical details rather than vague general- 
ities; its assertion of the existence of settled usages 
to which the King binds himself to conform. This is 
perhaps the cardinal principle of the whole, its 
insistence that there is something higher and more 
sacred than the will of sovereigns and rulers. 

Secondly. It is famous because of its vivid historical 
setting. Christendom was impressed by the spectacle 
of an anointed king obliged to surrender at discretion 
to his rebellious subjects. The fact that John was 
compelled to accept what previously he had passionately 
refused, meant a loss of royal prestige and an en- 
couragement to future resisters of oppression. The 
dramatic circumstances of John's humiliation were 
stamped indelibly on the minds of future generations. 

Thirdly. It is famous because of its continuity with 



MAGNA CARTA (1215-1915) 17 

the past. It was modelled in some measure on the 
Charter of Henry I, and that Charter was in some 
respects an embodiment of the terms of the old 
coronation oath, under which the Conqueror and his 
sons had sworn to observe the laws of Edward the 
Confessor's reign ; and that oath can in turn be traced 
back to the days of the early kings of Wessex. The 
demand for the confirmation of Magna Carta took the 
place of the older battle-cry of a return to the laws of 
good King Edward, and the halo as of a golden age 
that surrounded the " leges Eadwardi " was transferred 
to their supposed new embodiment in John's Charter 
of Liberties. 

Fourthly. It is famous because of its continuity 
with the future; because it stands directly in the line 
of development of English liberty and the reign of law ; 
because it marks the first decisive step in the establish- 
ing of a system of government of great value to the 
whole of the civilized world. " Slow and sure " has 
been the motto of the builders of English liberty ; and 
the influence of Magna Carta, and of the circumstances 
that gave it birth, have been woven into the whole 
fabric of our constitutional continuity. For one thing, 
the winning of the Charter marks the beginning of 
a new grouping of political forces in England. No 
longer, as in the days of those three master-builders 
of our constitution, William the Conqueror, Henry 
Beauclerc, and Henry Plantagenet, were Crown and 
people united, in the name of law and order, against 
a baronage that contended for feudal licence. All this 
was changed in 1215; the mass of merchants and 
yeomen, the small subvassals, and the clergy had in 
that year formed a league with the barons, as the new 
champions of law and order, against the Crown that 
had now become the chief law-breaker. This associ- 
ation with new allies was accompanied by a change of 



iS MAGNA CARTA (1215-1915) 

baronial policy. Convinced that the complete feudal 
independence of each feudatory in his own territory 
was now impossible, the feudal magnates sought to 
control and guide the royal power they could no longer 
defy. Magna Carta was the firstfruit of this new 
policy, and thus stands directly in the line of con- 
stitutional development. 

Fifthly. It is also famous because of its numerous 
re-issues and confirmations, and because of the sol- 
emnity with which some of these have been accom- 
panied. It is true indeed that we are dependent 
upon an authority of some centuries' later date for 
some of the most impressive details. Holinshed, em- 
broidering on the narrative of Matthew Paris, relates 
how, in a Parliament held at London in 1253, after 
Henry III had confirmed the Charter, sentence of 
excommunication was pronounced by the Archbishop 
of Canterbury and thirteen of his bishops " revested 
and apparelled in pontificalibus, with tapers accord- 
ing to the manner . . . against all transgressors of 
the liberties of the church and of the ancient liberties 
and customs of the realm of England, and namely 
those which are contained in the great charter and 
in the charter of forest. . . . Whilst the sentence was 
in reading the King held his hand upon his breast 
with glad and cheerful countenance, and when in 
the end they threw away their extinct and smoking 
tapers, saying, ' So let them be extinguished and sink 
into the pit of hell which run into the dangers of this 
sentence,' the King said, ' So help me God, as I shall 
observe and keep all these things, even as I am a 
Christian man, as I am a Knight, and as I am a King, 
crowned and anointed '.* " 

Sixthly. The Charter was found valuable as a 
weapon in the hands of later champions of freedom 
1 Holinshed, "Chronicle," i. pp. 128-9 J M. Paris, v. p. 360. 



MAGNA CARTA (1215-1915) 19 

because of its flexibility. The original meaning of 
many of its clauses was in later centuries forgotten, 
and, after the decay of feudalism, new interpretations 
(as we have seen) superseded older ones. The pro- 
cess which substituted the redress of the abuses most 
bitterly felt in later centuries for those actually re- 
dressed in 1215 was usually a perfectly honest one; 
and, thus, even mistaken interpretations of Magna 
Carta have contributed to the advance of sound prin- 
ciples of government. This process of constantly 
adapting the half obsolete provisions of Magna Carta 
to meet the changing needs of succeeding generations 
had been begun in the reign of John's famous grand- 
son, if not even in that of his son ; while the interpreta- 
tions of some of its most famous clauses commonly 
entertained under Edward III would have astonished 
alike John and his opponents. But the process of 
modernization culminated only in the reigns of the 
Stewarts. 

If the inaccurate eulogies of Coke and Hampden 
have obscured the bearing of many chapters, and 
diffused false notions as to the development of English 
law, the service these very errors have rendered to 
the cause of constitutional progress is measureless. 
What was originally an affirmation of the validity of 
feudal law and custom against the arbitrary caprice of 
John, became in time an affirmation of seventeenth- 
century national law against the arbitrary stretches of 
prerogative by the Stewart Kings in furtherance of 
their personal or dynastic aims. Magna Carta, in this 
way, became a bridge between the older monarchy, 
limited by the restraints of mediaeval feudalism, and 
the modern constitutional monarchy, limited by a 
national law enforced by Parliament. 

To the fame gained by Magna Carta in respect of 
its real and original meaning, must thus be added 



20 MAGNA CARTA (1215-1915) 

the fame gained by the imaginary Magna Carta, as 
evolved from the earlier Charter by the learning of 
Coke and his parliamentary associates. We have 
seen how, in the seventeenth century, it became a 
means of cloaking innovations in the guise of a return 
to the past, and how in an age averse from constitu- 
tional innovations, it enabled the opponents of the 
Divine Right of Kings to gain for their policy the 
approval of staid upholders of the venerated past. 
The elasticity of the Great Charter has thus enabled 
it to adapt itself to the ever-changing needs of suc- 
ceeding centuries; and each century that enjoyed its 
powerful aid has heaped upon it, in return, tributes 
of grateful veneration, and has read into it new prin- 
ciples of which its framers never dreamed. 

Seventhly and Lastly. It has enjoyed an enduring 
fame because of the hold which, for these and other 
reasons, it gained and held for many generations 
upon the popular imagination, Its emotional and 
moral value is perhaps even greater than its strictly 
legal or constitutional value. All government is, at 
bottom, founded on public opinion upon sentiments 
either of affection and veneration or of fear. Psycho- 
logical considerations are often all-powerful in the 
world of politics and morality. It is no disparagement 
of Magna Carta, then, to admit that part of its value 
has been read into it by later generations, and that 
its power now lies in the halo almost of romance that 
has collected round it in the course of centuries. 
Sentiment counts for much in the most practical 
affairs of men. It is sentiment that has brought the 
flower of Anglo-Saxon and Celtic manhood from the 
shores ' of the seven seas from Africa, Australasia, 
Canada, and India to fight the mother-country's 
battles in Europe and in Asia the twin sentiments 
of love of Empire and love of home ; and these men 



MAGNA CARTA (1215-1915) 21 

claim justly, as their right, a full share in the goodly 
heritage of the free institutions and traditions of the 
homeland, of which Magna Carta forms an essential 
part. 

The Great Charter is great because in ages long 
after its framers were dead and forgotten, it became 
a shield and buckler behind which constitutional 
liberty could take shelter. Fortified as it had been 
by the veneration of ages, it became a strongly en- 
trenched position that the enemies of arbitrary govern- 
ment could safely hold. Apart from the salutary 
effect of many of its original enactments, its moral 
influence has steadily contributed to an advance in 
the national spirit and therefore to the more firm 
founding of the national liberties. The value of the 
Great Charter has continually increased in the seven 
hundred years during which traditions, associations, 
and aspirations have clustered ever more thickly 
round it. 

In the forefront of this long catalogue of virtues, 
however, there lies the one great cardinal merit of 
the Charter, which has already been insisted on, 
namely that it is, in essence, an admission by an 
anointed king that he was not an absolute ruler ; 
that he had a master in the laws he had often violated 
but now once more swore to obey ; that his preroga- 
tive was defined and limited by principles more sacred 
than the will of kings ; and that the community of 
the realm had the right to compel him, when he re- 
fused of his own free will, to comply. Magna Carta 
affirmed the doctrine that kings are accountable for 
their deeds, and thus paved the way for the shifting 
of the responsibility from the King to his ministers, 
holding office at the will of a Representative Parlia- 
ment. 

In conclusion, it may not be unprofitable to ask 



22 MAGNA CARTA (1215-1915) 

what valuable lessons (if any) Magna Carta and its 
historical context have for the men of 1915 in this 
time of unparallelled stress and anxiety. Here two 
lines of thought suggest themselves, one connected 
with .our foreign relations and the other with our 
domestic troubles and reforms. 

One set of problems lies in the realm of inter- 
national, and the other of constitutional, law ; and 
both of them turn on the possibility of substituting^ 
peaceful methods for brute force in settling acute 
differences of opinion. There are two ways, and only 
two, of reconciling conflicting principles and interests. 
One is by the method of rational men ; the other, of 
savages and wolves and tigers. The one proceeds by 
the devising and enforcing of wise laws and the fram- 
ing of constitutions ; the other, by the arbitrament of 
war. 

Take the international problem first. More than 
nineteen centuries have elapsed since the Prince of 
Peace was born into the world at Bethlehem. War 
and the horrors of war should surely be obsolete and 
impossible in this twentieth Christian century ; and 
yet never has a more widespread, unremitting, or 
inhuman war been waged than is waged to-day. 
What hopes, then, remain for the priests of peace ? 
Must they, with averted faces, renounce all hope of 
the long-expected time when wars shall cease ? The 
events surrounding Magna Carta would seem to 
furnish them with a ray of hope, however dim ; for, in 
1215, the granting of the Charter was the beginning, 
not the end, of a bitter Civil War ; and at that date 
the possibility of permanently superseding domestic 
strife by peaceful constitutional methods seemed as 
remote as the possibility of devising machinery to 
prevent recurrence of war among rival nations ap- 
pears to-day. Yet, in 1215, in spite of the blackest of 



MAGNA CARTA (1215-1915) 23 

outlooks, the process had really commenced of sub- 
stituting, in domestic troubles, the settlement by 
reason for the settlement by brute force. 

A Constitution for England had already in 1215 
begun to be evolved. Similarly, may it not be poss- 
ible that in 1915, when everything looks its blackest 
for the friends of peace, we may not be far from the 
coming of the dawn? International law may yet 
achieve what seems so impossible to-day; just as 
constitutional law has achieved what seemed equally 
impossible in 1215. 

The second problem or group of problems, for 
light on which we turn to the history of Magna Carta, 
affects the internal policy of Great Britain and the 
British Empire. The present generation of English- 
men, like the spendthrift heirs of an industrious father, 
show a tendency to underestimate the value of that 
priceless heritage of the British Constitution that has 
come to them without effort of their own, as a product 
of the labour and the forethought of the generations 
that have gone before. Why is it that constitutional 
privileges that are the envy of all civilized foreign 
nations, privileges that were esteemed alike by Pitt 
and Fox and Edmund Burke, by Blackstone, Hallam, 
Mill and Macaulay, by Wellington and Earl Grey, by 
Peel and Palmerston and Lord John Russell, by 
Gladstone, Disraeli, and John Bright, have come to be 
cheaply held as airy trifles to be taken for granted, or 
to be lightly bartered away for the rapid attainment 
of the moment's transient and loud-voiced needs ? 

Why was it that, even for years before the evil ex- 
ample set by Germany at the commencement of her 
war against the foundations of civilization, there 
appeared everywhere signs of a tendency at work to 
discredit the constitutional heritage to which so many 
generations of Britons have contributed ; of a retro- 



24 MAGNA CARTA (1215-1915) 

grade movement, away from the method of settling 
disputes by the discussion of what is just and right 
to the method of self-help by organized violence ? 
Whatever the reason, the facts are undoubted. A 
spirit of lawlessness, discontent, and greed had (even 
before the fateful August of 1914) bred a quick im- 
patience of every constitutional barrier that stood in 
the way of its own immediate gratification. 

It had ceased to be remembered that even red-tape, 
whether of the moral or legal variety, is an excellent 
thing in its own place. This universal impatience with 
legal and traditional restraints, from which Great 
Britain can by no means claim to have been wholly 
free, was perhaps only part of a great wave of discon- 
tent with constitutional impediments, which culmin- 
ated in the felon's act of Germany in repudiating the 
obligations of her plighted word and violating every 
accepted code of law and honour. 

The time will come, however, when the tide will 
turn ; when public opinion will recognize once more 
the merits of the slow but sure constitutional methods 
of settling disputes; when the British Constitution, 
readjusted and amended, perhaps, to meet the new 
destinies that lie ahead, will return into the sunshine 
of popular favour ; when Magna Carta and other 
" scraps of paper " or of parchment will come to their 
own again. 

The centre of world-interest will then swing back 
again from the work of the bayonet and the howitzer 
to the work of the pen. Then all eyes will centre 
once more on constitutional problems, of which three 
at least are likely to occupy the foreground of public 
attention : The framing of a new, perhaps federal, 
Constitution for the British Isles*; the framing of a 
new Imperial Constitution to bind the Overseas 
Dominions more closely to the mother-land ; the fram- 



MAGNA CARTA (1215-1915) 25 

ing of some stepping-stone, at least, toward a scheme 
of government for Europe and the world, capable of 
substituting the decisions of justice and reason for the 
grim arbitrament of war. 

For that new world, towards whose dawn we are 
peering through the darkness, yet with stout hope in 
our hearts, Magna Carta has grave lessons, which it 
cries aloud with no uncertain voice. The part that 
the Great Charter has played in achieving the endur- 
ing reforms of earlier centuries, is a sermon on the 
text of " slow but sure ". It teaches the value of con- 
tinuity in all matters of constitutional development. 
It shows that ground, to be permanently held against 
the encroachments of the enemy, must be slowly and 
painfully acquired and carefully entrenched yard by 
yard against the inevitable counter-attack to be openly 
delivered, or prepared more insidiously underground. 

Magna Carta and its historical context proclaim to 
.all idealists who are in haste for quick results, the 
danger of breaking with the past. Framers of new 
schemes of government, whether for the United 
Kingdom or the Empire, will find sure evidence of the 
strength given to national institutions by continuity, 
when they look back on the long, slow, steady growth 
of the English Constitution through the vicissitudes 
-of the seven hundred years that separate the Confer- 
ence at Runnymede from the present day. When the 
happy day has dawned on which Britons meet to 
celebrate, on bended knee, the restoration of peace to 
-a tortured Europe, they will do well to return thanks 
also for the free land into which they and their sons 
were born : 

A land of settled government, 
A land of just and old renown, 
Where freedom broadens slowly down, 

From precedent to precedent. 



INNOCENT III AND THE GREAT CHARTER, 
PROFESSOR G. B. ADAMS, PH.D. 

THAT John expected the Pope to release him from his 
obligation to the Charter upon some ground or other is, 
I think, reasonably certain. That the Pope honestly 
believed that he was acting with competent authority 
in doing so, is even more clear from the evidence. 
But no attempt has ever been made, so far as I am 
aware, to show by an analysis of the evidence upon 
what basis of legal right the Pope supposed he was 
resting his Bull of 24 August, 1215, or to subject his 
right to annul the Charter to a legal criticism. I can 
hope in this paper to do no more than to make a beginn- 
ing in that direction. 

To determine the legal basis of the Pope's action, 
one turns first of all to the Bull itself, but the answer 
which it gives is too indefinite to be satisfactory. 1 One 
naturally expects to find the Pope's action based upon 
the vassal relation of England to the papacy. This 
relationship is indeed clearly mentioned in the Bull, 
but it is not emphasized. It is put forward as one fact 
among others explaining the Pope's interest in the 
case ; but his interest in the fact that John was a cru- 
sader is more strongly insisted on. 2 Nowhere is the 

1 Rymer's "Foedera" (second edition), i. 135; Bemont, " Chartes 
des Libertes Anglaises," 41-4. 

2 " Cum igitur debeamus et libenter velimus . . . dicti Regis qui 
vasallus noster existit conservare justitias et injurias propulsare,, 
maxime cum idem propter caracterem crusis assumptum specialiter 
sub nostra protectione consistat. . . . " Letter of Innocent III of i& 

(26) 



INNOCENT III AND THE CHARTER 27 

feudal relationship asserted as the ground of right on 
which the Pope was acting, nor is there any attempt 
made to show that the Charter reduced the value of 
the fief or its ability to perform the service by which 
it was held, nor are these facts even asserted. In the 
formal phrases of annulling at the close of the Bull, it 
is the apostolic authority which is put forward, and 
there is no mention of the feudal relationship. 1 So 
far as the language of the Bull is concerned, there is 
nothing in it to prevent our saying that, if the relation- 
ship had not existed, the Pope would have taken the 
same action. 

If now we turn from the Bull to the other contem- 
porary evidence, documentary and chronicle, which 
has come down to us, the information we gain is no 
more definite, but certain things bearing on the ques- 
tion stand out rather clearly. 

I. The feudal dependency of England upon the 
papacy was recognized by all parties during the whole 
period, with the single exception of Philip II of France 
and his son in their debate with the Pope. They, 
however, do not deny the fact of the relationship, but 
the right of John to enter into it and its legality. 2 
John of course makes the matter entirely clear in his 
two Charters, recording his oath of fealty, of 1 5 May, 
and 3 October, I2I3. 3 He there calls England for the 

June, 1215. See also the Bull " Miramur plurimum ". The reference 
to the vassal relationship in any portion of the Bull of 24 August, ex- 
cept the historical, is only indirect. 

1 "... ex parte Dei omnipotentis patris et filii et Spiritus sancti, 
auctoritate quoque beatorum Petri et Pauli apostolorum ejus ac nostra> 
de communi fratrum nostrorum consilio, compositionem hujusmodi 
reprobamus penitus. . . . " Bull of 24 August. 

2 " Roger of Wendover" (ed. Coxe), iii. 364, 365-6. 

3 Rymer, i. in, 115, containing John's oath of fealty in written 
form, which was not usual. For another instance see the fealty of 
Henry II to Louis VII, Bouquet, xvi. 16. That an ecclesiastic had 



28 INNOCENT III 

first time "patrimonium beati Petri " a phrase recurring 
again in connection with the Charter. In his letters 
in 1215 John also refers frequently and clearly to the 
relationship, as does also the Pope, and the phrase 
" patrimonium Petri " occurs several times. Too much 
emphasis has, I think, been placed upon the barons' 
recognition of the vassal relation in their letter to the 
Pope in February, 1215, for rhetorical purposes merely, 
but they certainly do recognize it, according to the 
statement of John's envoy. 1 

II. In certain cases John had acted, or seems at first 
sight to have acted, as the Pope's vassal : 

i. He sought a confirmation from the Pope of his 
grant of freedom of election to the churches of 15 
January, 12 15. 2 That this is the act of a feudal vassal 
seeking a confirmation from his lord of a grant which 
would be invalid without it, is exceedingly doubtful. 
It probably would have been sought in any case ; the 

some influence upon the wording of this document seems to be indi- 
cated not merely byithe phrase "patrimonium beati petri" but also by 
the other phrase by which fealty was sworn not merely to Innocent III, 
but also "ejusque successoribus catholice intrantibus," a specification 
which would hardly have occurred to an English layman, but which 
would have seemed very necessary to a Roman having in mind the 
recent and foreseeing the possible history of the papacy. 

1 See Norgate, "John Lackland," p. 246. 

2 This depends upon the statement twice made by M. Paris in what 
appear to be his separate additions to Roger of Wendover (M. Paris 
(Rolls Series), ii. 606 and 607). John's request has not been preserved, 
and the papal confirmation, which is addressed to the English prelates 
only, does not allude to it. The Confirmation is Potthast, No. 4963, 
and is printed "from the original " in Rymer, i. 127. Apparently no 
confirmation was asked of the earlier issue of this grant on 21 No- 
vember, 1214. Having carefully considered suggestions made to the 
contrary, I still hold to the opinion expressed in " The Origin of the 
English Constitution," p. 258, that it is very doubtful if any heir of 
John would have considered himself bound by a grant like this. Henry 
III certainly did not consider himself bound by what it means, fairly 
interpreted. 



AND THE GREAT CHARTER 29 

prelates would naturally desire this sanction added to 
the King's grant. The confirmation is "auctoritate 
Apostolica confirmamus," and there is no reference in it 
to the feudal relationship nor to feudal rights. The 
language of all the clauses of confirmation and sanc- 
tion follows closely the model which had long been in 
use in the papal chancery for similar confirmations 
issued in large numbers to monasteries and churches 
with reference to lands and rights by whomsoever 
given. 1 It is not possible to cite this case as evidence 
of action upon feudal principles. 

2. Confirmation was also sought from the Pope of 
the arrangement made with Berengaria in 1215 in re- 
gard to her dower rights. In this case the papal con- 
firmation is lacking, though one was sent to Berengaria 
in answer to her request, 2 and one was no doubt sent 
to John. We have, however, John's requests, two 
separate requests of even date, in regard to two dis- 
tinct agreements. 3 In these no reference is made 
directly or indirectly to the feudal position of the Pope. 
In the one which concerns the main agreement, there 
is no request for confirmation, but, in the language of 
the agreement, the Pope is asked " ut praesenti composi- 
tioni addat securitates quas viderit expedire et nos ratum 
habebimus quicquid inde statuerit ". In the second the 
word " confirmat " is used but clearly not in a technical 
sense, and the meaning of the request is the same as 

1 Examples may be found in almost any cartulary. See Ramsey, 
" Cartulary " (Rolls Series), ii. 146, a confirmation by Innocent III, 1 199, 
of gifts present and future ("auctoritate Apostolica confirmamus"), in 
which the language with insignificant variations is identical, and the 
following document (p. 147) a similar confirmation by Alexander III. 
Some of these phrases occur again in the Bull of 24 August, annulling 
the Charter. 

2 Potthast, No. 5141 ; Bouquet, xix. 607; Migne, "Opp. Inn." iii. 
992. 

3 Rymer, i. 137 ; "Rot. Litt. Pat." i. 181-2. 



3 o INNOCENT III 

in the first, not that the Pope will make legal some- 
thing which is otherwise beyond the capacity of the 
contracting party, but that he will add further, un- 
known, sanctions to the agreement. This is quite in 
accordance with what would at any time be normal, 
considering the question between the parties and the 
Pope's earlier interest in the case. In a letter on the 
subject addressed to John in I2O7, 1 he had clearly 
stated the grounds of his right to act in the case, 
his special duty towards widows, and commanded 
(" mandamus ") him to represent " in praesentia nostra " 
what he was going to do. This case is also clearly 
non-feudal. 

3. In his letter of 29 May, 1215, John said that he 
had declared to the barons that his land was the 
patrimony of St. Peter, held of him and of the Roman 
Church and of the Pope, that he emphasized to them 
his obligations, and claimed his privileges as a crusader, 
and then appealed through the Earls of Pembroke and 
Warenne against the disturbers of the peace of the 
land. 2 Roger of Wendover states that John's mes- 
sengers to the Pope, presumably those whom he says 
the King sent soon after granting the Charter, in the 
account of events which they gave the Pope, mentioned 

^otthast, No. 3171 ; Rymer, i. 97. 

2 Rymer, i. 129. The appeal was "contra perturbatores pacis 
terras nostras," no doubt the source from which the Pope obtained this 
phrase used afterwards in the Bull " Miramur plurimum " ordering the 
excommunication of the barons. The repetition of phrases from one 
of these documents to another, and the borrowing by England of 
papal phrases, and by the Pope of English phases is interesting. 
That John in this letter puts more emphasis on his crusading than on 
his vassal relationship, may be due to the fact that he is replying to 
a request from the Pope for a report on his preparation for the crusade. 
It gives him an opportunity to make clear the effect which the baronial 
opposition was having upon Innocent's cherished plans which he did 
not neglect. 



AND THE GREAT CHARTER 31 

an appeal by the King before the entry of the barons 
into London. 1 In his Bull of 24 August, the Pope says 
that John had twice appealed to him. There is no 
further evidence for these statements, but there is no 
reason to doubt them. It should be noted that they 
give us no clear evidence of the ground on which the 
appeal was made. 

4. Roger of Wendover in the account just referred 
to makes the King's envoys say that at some indefinite 
time before the granting of the Charter John publicly 
protested before the barons that, because the kingdom 
of England belonged to the Roman Church "ratione 
dominii," he could not and ought not to decree any- 
thing new without the consent of the Pope nor to 
change anything in the kingdom to his prejudice. 
This same statement is also made by the Pope in the 
Bull of 24 August 2 Here is clearly an appeal to feudal 

1 Roger of Wendover, iii. 322. 

2 The language on this matter is so nearly alike in Roger of Wend- 
over, iii. 322, and the papal Bull, as to raise the question of their 
dependence upon one another. Wendover could easily be following the 
Bull in these particular phrases, but he adds other particulars which 
could not be so derived, and it is quite possible that he was following 
a letter presented to the Pope by the envoys, not now surviving, which 
the Pope also follows, as was his constant practice throughout the 
struggle in regard to his information from England. Some confirma- 
tion of this may possibly be found in the reference to the occupation of 
London, of which Wendover says, " quse caput regni sui est proditione 
sibi traditam," and the Pope, "que sedes est regni proditorie sibi 
traditam ". Roger of Wendover \ (iii. 319) says that John sent 
Pandulf to the Pope against the Charter soon after it was granted, and 
Walter of Coventry (ii. 222) says that he sent the Chancellor, Richard 
Marsh (cf. McKechnie, p. 44, who seems from his reference to be 
following Petit-Dutaillis, "Vie de Louis VIII," p. 59, where it was, I 
suppose, a misprint). Neither of these statements is correct, and the 
letter of John to the Pope in regard to a mission of Pandulf s, which 
is printed in Rymer, i. 135, as if it belonged to this date, must probably 
be dated c. 13 September (cf. "Diet. Nat. Biography," xv. 176). 
It was entered in the Patent Roll of 17 John (m. 1 5 d.) in close connec- 
tion with other letters of that date (" Rotuli Patentes," p. 182). 



32 INNOCENT III 

law. The Pope's attention was called to a principle 
upon which he might act against the Charter, and that 
principle was clearly in his mind when the Bull was 
drawn up. Nevertheless it was not made the basis of 
the Pope's action. In regard to the point of law, we 
may so far anticipate the later discussion as to say that 
in the first part of his statement John was quite wrong r 
and in his second more nearly right. 

5. In the Bull of 24 August, the Pope says that- 
after offering to the barons " secundum formam 
mandati nostri justitie plenitudinem exhibere," which 
they refused, the King " ad audientiam nostram appel- 
lans obtulit eis exhibere justitiam coram nobis, ad 
quos hujus cause juditium ratione dominii pertine- 
bat." l This is the first appeal mentioned by the Pope, 
and if the appeals have been correctly indicated in 
3 above, it is the one made through the Earls of 
Pembroke and Warenne. In his letter 29 May, John r 
in mentioning this appeal, does not add these legal 
particulars, and the source of the Pope's information 
is not evident. Judging by his general practice, 
however, he was probably following English informa- 
tion from some source. It is also quite possible that 
John, in order to confuse the situation, may have made 
an appeal in some such terms. It is out of the question, 
however, that any practical result should follow from 
such an appeal, or that it should be legally defensible. 

1 The offer which most nearly corresponds to this in form is that 
which John in his letter of 29 May (Rymer, i. 129) says he made to the 
barons in the presence of brother William, that is on the day the letter 
was written. He says : " optulimus praedictis baronibus quod de omni- 
bus petitionibus suis, quas a nobis exigunt, in vos benignissime compro- 
mitteremus, ut vos qui plenitudine gaudetis potestatis, quod justum foret 
statueretis ". This offer, however, as stated, does not mean legally 
what the Pope asserts, and the date seems hardly to agree with the 
Pope's implied chronology. Clearly he puts the offer before, and John 
after, the offer of arbitration by a chosen body of eight. 



AND THE GREAT CHARTER 33 

It is theoretically possible that the Pope could create 
a lay court of peers for the trial of an appeal by John, 
but not actually possible. The King of Sicily was in 
the midst of his campaign for the throne of Germany. 
The King of Aragon was a minor. The Pope's royal 
vassals in Hungary and the Balkans could hardly be 
expected to appear in Rome for such a purpose. A 
lay court of the Pope's vassals in Rome and its 
neighbourhood could easily have been called together, 
but it would hardly have been a court of the peers of 
John. In relation to him they would be in the position 
of those who held in England " ut de honore " instead 
of "ut de corona". The legal difficulties are equally 
formidable. The language used by the Pope plainly 
implies a judicial proceeding. If the Pope states the 
facts correctly, and the evidence goes to show that he 
did, on the arrival in England of his letter of 29 March, 
John offered to the barons "quod ... in curia sua 
per pares eorum secundum legem et consuetudines 
regni suborta dissensio sopiretur". This, however, 
would not be a suit at law. With reference to the 
barons' complaints, the King would be in the position 
of a defendant, but as King he could not be sued. He 
states the situation with technical correctness in his 
letter of 29 May, which is probably the source of the 
Pope's information. 1 He says: " et praeterea eis op- 
tulimus quod de omnibus petitionibus suis, per con- 
siderationem parium suorum justitiae plenitudinem 
eis exhiberemus ". That is the barons' case could 
come before the curia regis only by way of petition, 
and the answer would be a matter of equity, that is 

1 The technical expression is also correct in the two papal letters of 
29 March. For the situation created in the curia when all the barons 
were against the lord, see Beaumanoir, " Coutumes de Beauvoisis, 
c. 44 (ed. Salmon), chap. i. 33 (ed. Beugnot). The appeal there 
referred to is the appeal for default of right. 

3 



34 INNOCENT III 

an act of the curia as council, not as court, if we may 
make a distinction perfectly valid in 1215, but which 
perhaps the men of that day could not have drawn. 
In such a case John could have no appeal to his 
suzerain on technical grounds. Every action of the 
council was technically his action, and no decision of 
the whole baronage against him would have any legal 
validity if he withheld the " Rechtsgebot ". The only 
technical appeal possible would be by the barons. 
They, however, refused the King's offer and then John 
appealed, on what grounds we do not know. It could 
not have been on grounds of legal technicality, but 
the general appeal to his lord for protection was 
always open to him, though it could have been made 
in this case only by a quibble. Equally difficult is 
the Pope's statement that John offered to do the barons 
justice before him to whom " hujus cause juditium 
ratione dominii pertinebat ". In the relation of Eng- 
land to the papacy, no right of judgment pertained to 
the Pope " ratione dominii " except in cases brought 
before him by way of appeal. It is necessary to say 
that the Pope is here using language which is appar- 
ently technical, but which cannot be justified upon 
such grounds, but only if it is regarded as used in the 
most general and non-technical sense. 1 John's curia 
was as fully competent to judge finally every case 
between the King and the barons after as before he 
became the vassal of the Pope and without any 
reference to his overlord. His position was not that 
of an English vassal of the King, but that of one of the 
sovereign great barons of France, and, under the terms 

1 Of course some lords had a right of judgment in cases arising 
in their vassals' holdings " ratione dominii " because of the limited right 
of jurisdiction of the vassal. But that right could not exist here. All 
lords had such a right by way of the regular appeals, but that right 
also could not be in force in this case. 



AND THE GREAT CHARTER 35 

by which the fief was held, he could not even be called 
upon for court service as a matter of right. 

III. Although John calls attention several times to 
his feudal relation to the Pope, and seems disposed to 
make what he can of it, he clearly does not trust to it 
as sufficient. On 4 March, 1215, he took the cross, 
thereby gaining the ecclesiastical protection and ex- 
tensive privileges granted to the crusader, but also 
securing the interest of the Pope in regard to the plans 
which Innocent had most deeply at heart. In this 
new relationship John undoubtedly secured all that 
he needed, and the skilful use which he could make 
of it is shown in his letter of 29 May in which he puts 
the situation in such a light as to make clear to the 
Pope his inability to take any steps towards the 
crusade because of the trouble the barons were mak- 
ing. 1 On this ground alone the Pope would un- 
doubtedly have felt himself justified by existing law 
and practice in acting as he did. Not merely did the 
privileges granted crusaders relieve them from con- 
tracts which interfered with the carrying out of their 
vows, 2 but the popes assumed the right to protect a 
crusade, and crusaders, from any interference with 
the undertaking. In his excommunication of the cru- 
saders of the fourth crusade, for their attack on Zara, 
Innocent based his action wholly on ecclesiastical 
grounds, and did not allude to the fact that the King 

1 Innocent was dependent for his information as to the facts and 
merits of the struggle in England mainly upon information given him 
by John. As stated by the King his case must have seemed very 
strong to the Pope, who seems to have understood fairly well a good 
many of the details. 

2 See for example the regulations for the third crusade, in Rigord 
(ed. Delaborde), i. 85-8. These indicate not merely the privileges 
granted crusaders in the matter of debts, but also by their limitations 
on those privileges they show what larger things were popularly 
expected. 



36 INNOCENT III 

of Hungary, whose territory was thus violated, was 
his vassal whom he would be bound to protect in the 
possession of his fief. 1 

IV. According to Roger of Wendover's account of the 
embassy to the Pope soon after the granting of the' 
Charter, Innocent was informed that the barons had 
demanded "quasdam leges et libertates iniquas quas 
dignitatem regiam nulli decuit confirmare ". The same 
chronicler informs us that John, angry at the demands 
of the barons presented in their preliminary schedule, 
cried out " Et quare cum istis iniquis exactionibus 
barones non postulant regnum," and attributes a simi- 
lar exclamation to Innocent when certain clauses of the 
Charter were shown him in writing. 2 If these state- 
ments refer to specific demands, it would be exceed- 
ingly interesting to know which ones they were. If 
regarded as intended to furnish a legal basis in feudal 
law for the Pope's action against the Charter, they are 
certainly much too strong for anything which it con- 
tains. The only clauses which demand extreme con- 
cessions from the King I have discussed elsewhere 
sufficiently, I think, to show that taken all together 
they would not justify such statements. 3 

If finally we turn to feudal law, as understood either 
in England or on the Continent, to inquire if, by its 
principles alone, the Pope would have been justified in 
annulling the Charter, the answer must be, I think, 
in the negative. The details of the law which would 
apply to this case differed in different countries, but 
the underlying principle was the same everywhere : 

'Potthast, Nos. 1848, 1849; Migne, "Opp. Inn." i. 1178, 1179; 
Bouquet, xix. 420, 422. 

2 Roger of Wendover, iii. 322, 298, 323 respectively. The Pope in 
the Bull of 24 August calls the Charter " compositionem . . . non 
solum vilem et turpem, verum etiam illicitam et iniquam, in nimiam 
diminutionem et derogationem sui juris pariter et honoris". 

3 In "The Origin of the English Constitution," chap. v. 



AND THE GREAT CHARTER 37 

without the lord's consent the vassal might do nothing 
with or in his fief which reduced its value to himself 
to such an extent as to endanger his ability to perform 
the service by which he held it. 1 In some cases this 

1 The legislation upon this question, as far as tenants-in-chief are 
concerned, is about the oldest in feudal law, and goes back to a point 
before feudalism in the later sense had been fully established. See 
" Mon. Ger. Hist.," " Capitularia Regum Francorum," ii. 14, c. I, and 
the references in note I to earlier legislation, and p. 15, c. 5 (A.D. 829). 
In the intermediate period a great deal of laxness prevailed both in 
Italy and England in regard to the application of the fundamental 
principles. In Italy imperial legislation at the middle of the twelfth 
century endeavoured to check these tendencies and may be supposed to 
have been within the memory of the papal curia. See the law of 
Lothar III of 1136, "M.G.H. Leg. Sec." iv. tome i. 175, and those 
of Frederick I of 1154 and 1158, ibid. pp. 207 and 248, c. 3. This 
legislation was taken up into the " Libri Feudorum". Conrad II's 
legislation of 1037 has no provisions on the subject. In England the 
legislation of the thirteenth century, both in regard to mortmain and 
the principles of the statue of " Quia emptores," shows that the funda- 
mental feudal principles had been consciously recognized, however lax 
the practice may have been. In the kingdom of Jerusalem peculiar free- 
dom was allowed in the matter of subinfeudation for military reasons. 
See "Livre de Jean d'Ibelin," c. 182, *^d. Beugnot, i. 284, and note b. 
The fundamental principle is, however, the same. It is the assize, or 
the local usage, which makes the difference. None of the feudal law 
codes of the thirteenth century gives any great space to the topic, or 
particularly emphasizes any part of it, unless it be grants in mortmain. 
Particularly good discussions of various phases of the subject may be 
found in Viollet's notes to the " Etablissements de S. Louis," i. 30, 163 ; 
iii. 104-7, 124-6 ; iv. 298-303. It is in French feudal law that 
the principles were finally worked out in the most elaborate way. 
This may be best obtained from Loysel's " Institutes Coutumieres," ed. 
Dupin et Laboulaye (1846), nowhere in one place, but see the various 
terms in the Index. The result may be indicated as follows : The 
general principle covers : (i) Abridgement of the fief; (2) Dismember- 
ment of the fief, or the division of it into a number of fiefs, all holding 
of the immediate overlord, as results from the statute " Quia emptores," 
and (3) " Jeu de fief," or subinfeudation. It is under abridgement of 
the fief that Magna Carta would come, if anywhere. That is again 
subdivided into: (i) grants in mortmain ; (2) emancipation of serfs; 



38 INNOCENT III 

principle was extended to mean that no reduction, 
however small, like the emancipation of a serf, could 
be made in the capital, or permanent, value of the fief, 
undoubtedly with reference to the possibility of 
escheat, as is stated in the English Statute of Mort-' 
main. In applying this principle to the case of Inno- 
cent III and John, it must first of all be remembered 
that John did not hold England by indefinite feudal, 
or by military tenure, but by a clearly defined money 
payment only. That is England was a " feudum censu- 
ale," which is the term applied by Innocent to the 
exactly similar relation of Aragon to the papacy. 1 In 

and (3) abridgement proper in which certain definite income from the 
fief, including the relief, is fixed by agreement between lord and man 
at a sum considerably below the normal value. It is this last arrange- 
ment which creates what is known technically in French law as the " fief 
abrige," and it is under this only that Magna Carta could be brought, 
but it is absurd to suppose that any financial provision of the Charter 
would render uncertain John's ability to pay his annual cens of i ooo 
marks. There are no regulations in any feudal code or law, early or 
late, concerning customs, services, or relationships, which have not an 
economic value, or which would justify the statement attributed by 
Roger of Wendover, iii. 322, to John that he could not " de novo- 
aliquid statuere " without the knowledge of the Pope. The " Tratado de 
la Regalia de Amortizacion " of Rodriguez Campomanes, Madrid, 1765, 
reviews the legislation of all the countries of Western Europe on that 
subject, but traces only partially the earliest forms and does not discuss 
allied matters. The same is true, with even less on early legislation, 
of C. I. Montagnini, " Dell' Antica Legislagione Italiana sulle Mani- 
morte," in "Miscellanea de Storia Italiana," tome xix. Turin, 1880. 
It deals with the subject in detail only from the fifteenth century. 

1 . . . " illud ei [Sedi Apostolicas] constituens in perpetuum censuale." 
. . . Letter to Peter II, not dated. Potthast, No. 2322. Text in 
Jean Dumont, "Corps Universel Diplomatique," i. 132. There was 
nothing in the fact that John's service was merely a rent payment to- 
make his typically feudal oath of fealty, or the use of the word " vassal " 
for him, seem out of place. The idea "held of another" was funda- 
mental in feudalism, and from it passed with feudal incidents to re- 
lationships not originally feudal and in reality never becoming such. 
Here it is important to notice that with this idea as a starting-point 



AND THE GREAT CHARTER 39 

both John's Charters of 1213 making the concession to 
the Pope, and in the Pope's acceptance of 2 November, 
1213, the money payment is distinctly said to be "pro 
omni servicio et consuetudine, quod pro ipsis facere 
deberemus," saving St. Peter's pence. This definition 
of the service is perfectly clear and normal, and it 
limits not merely John's obligations but also the Pope's 
rights. Under it the Pope would be in duty bound to 
protect the King in the possession of his fief against, 
any outside attack or any internal revolution which 
would deprive him of it, but he could find no ground 
in feudal law on which he could object to any arrange- 
ment entered into by his vassal for its internal 
management which did not seriously affect his ability 
to pay the specified annual sum. If all the financial 
clauses of the Charter be put together and interpreted 
as they must have been understood in 1215, the 
absurdity of supposing that they would justify the 
annulling of the Charter by the overlord will be appar- 
ent. But the Pope and the King apparently under- 
stood the weakness of such a case, notwithstanding 
John's extreme statements and the Pope's seeming 
endorsement of them ; neither of them trusted the 
feudal relationship as a sufficient ground of action 

anything in the way of service could be added or omitted according 
to individual conditions, and a fee-farm tenure be made clearly feudal, 
or clearly a common freehold, and the immense variety of services 
attached to serjeanty tenures be created at will. That a fee-farm 
tenure might owe military service is directly stated by Magna Carta, c. 
37. Interesting examples of the varieties of this tenure may be found 
in almost any cartulary. See for reservation of forensic, or royal, 
service, which might often be military, " Gloucester Cartulary," i. 209, 
272 (many others) ; for service at a free court, ibid. i. 333, 385 (many 
others) ; wardship, ibid. i. 303 ; " servitium esquierii," ibid. i. 336 ; the 
ordinary judicial duty of the "advocatus," " Ramsey Cartulary," ii. 260, 
265 ; with "liege fealty," ibid. ii. 261 ; with castle guard, "Testa de 
Nevill," p. 52b. 



40 INNOCENT III AND THE CHARTER 

against the Charter, and the fact accounts for John's 
assumption of the cross, and for the way in which the 
Pope passed over his feudal rights in the Bull of 24 
August. It is upon his ecclesiastical rights that 
Innocent founded his action and upon them alone. 



APPENDIX. 

The Pope's letter of 18 June, 1215, to which refer- 
ence is made above, is in the Public Record Office, 
Papal Bulls, Box 52, No. 2. The upper left-hand corner 
has been destroyed at some time in the past, so that 
the entire address and portions of diminishing length 
of the first ten lines have been lost, and a single word 
and portions of words, as indicated in the text, have 
been lost elsewhere in the letter. The lines contain 
an average of 202 letter and word spaces. The ad- 
dress was probably general to the people of England. 
The letter seems to have a special reference to John's 
letter to the Pope of 29 May, and in the first portion it 
follows rather closely the Pope's letters of 19 March. 
The text was printed by Prynne in his " History of 
King John" (1670), p. 27, who supplied the address 
"Innocentius Episcopus nobilibus viris universitati 
Baronum Angliae hanc paginam inspecturis, salutem et 
Apostolicam benedictionem," (which can hardly be cor- 
rect), and portions of the missing words, distinguishing 
his additions in two cases only. Modern historians have 
mostly not noticed its existence. Ramsay, "Angevin 
Empire," p. 486, n. i, refers to Prynne's text (reference 
a misprint) and says the letter "does not read quite 
like one of Innocent's utterances ". Gasquet, "Henry 
Third and the Church," pp. 13-15, gives a reference to 
the original, says it was "addressed to Langton and 
the other English bishops," which it certainly was not, 
and gives an otherwise inaccurate abstract of its con- 
tents. There is no reference to it in Potthast. As 
the letter is highly characteristic of the method in 
which the papal letters were composed during this 
conflict, and may be called in some respects a first 
draft of the Bull of 24 August, it seems worth while to 

(40 



42 APPENDIX 

print it in a new and more accessible edition. A com- 
parison of the text with that of the other letters, papal 
and royal, of the crisis, beginning with that to Eustace 
de Vesci of 5 November, 1214 (Rymer, i. 126), will show 
the characteristic borrowing of phrases of which I have 
spoken. I have referred in the notes by date to some 
of the more important or interesting cases. 

It will be noticed that in this letter the Pope says 
that he has given directions to the archbishop and his 
suffragans to excommunicate the barons unless within 
eight days they come to an agreement with the King 
according to the form which he had earlier recom- 
mended to their messengers. The only papal letter 
which we have corresponding to this statement is the 
Bull " Miramur plurimum " preserved without date by 
Roger of Wendover (iii. 336). The dating of this Bull 
is admittedly difficult. Its place among the events of 
Roger of Wendover's narrative can give us no clue. 
In Walter of Coventry (ii. 223), a Bull of similar pur- 
port is said to have been shown to the bishops at a 
meeting at Oxford on 16 August. It is dated by Pott- 
hast (No. 4992) end of August, and most modern his- 
torians have accepted Walter of Coventry's date as 
that at which it was presented. Sir James Ramsay 
(" Angevin Empire," p. 478) concludes against August in 
favour of 16 July. The most serious objection to con- 
sidering the Bull "Miramur plurimum " to be the one 
referred to in the letter of 18 June is the definite state- 
ment that the barons were to be allowed an interval of 
eight days in which to come to an agreement with the 
King. That statement is not in the Bull "Miramur 
plurimum ". It may have been contained in a supple- 
mentary letter, or have been committed to the messen- 
gers to be made known orally, as not quite consonant 
with the dignity of a formal papal command. It should 
be noticed that the Bull shows no knowledge of the 
Charter. I am inclined to believe that it should be 
dated 18 June, and the meeting at which it was shown 
the bishops 16 July, though I am not prepared to as- 
sert this definitely. 



APPENDIX 43 

TEXT OF THE POPE'S LETTER OF 18 JUNE. 

. . . partibus Anglie nuper auribus nostris 
. . . odo Regni Anglie ; sed etiam aliorum . . . 
. . . quasdam inter eos et Carissimum . . . 
. . . opus esset cum humilitate ac devotione repetere l 
. . . super hoc iidem Barones suos ad nos nuntios 
destinassent ; 2 et nos Ue . . . 

. . . dedissemus litteris in preceptis. ut conspirationes 
et coniurationes 3 presumptas. a tempore suborte dis- 
cordie inter Regnum et sacerdotium, apostolica denu . . . 
. . . es ; ne talia decetero temptarentur, iniungerent ba- 
ronibus antedictis ; ut per devotionis et humilitatis in- 
d[i]cia tarn animum Regis placare. 4 quam recon . . . 
. . . es, quodab eoducerentpostulandum; conseruando 
sibi regalem honorem et 5 exhibendo seruitia debita.* 
quibus ipse rex non debebat absque iudicio spoliari ; 7 
ac insuper . . . prefatam in remissione sibi peccaminum 
iniungendo. quatinus benigne pertractans nobiles ante- 
dictos, iustas petitiones eorum clementer admitteret 8 
plena eis in uniendo. morando. et recedendo secu . . . 
. . . essa pariter atque data. Ita quod si forte non 
posset inter eos concordia prouenire ; in curia sua per 
pares eorum 9 secundum Regni consuetudines atque 
leges mota deberet dissensio terminari ; Barones ipsi 
nostro non expec 10 tato response, postquam idem Rex 
signum crucis assumpsit in subsidium terre sancte ; 
contempta iustitia quam ipse Rex superhabundanter 
offerebat eisdem ; n contra dominum suum arma 
mouere temeritate nefaria presumpserunt. non ti- 
mentes taliter crusis negotium impedire; ac regni 
periculum procurare. cum pecuniam quam pro libera- 

1 March 19. The single reference in these notes must not be under- 
stood to mean that it is to the only instance of the use of the phrase. 

3 Cf. Rymer, i. 120. The letters referred to by the Pope are those of 
19 March. 

3 5 November, 1214 ; 19 March. 4 19 March. 

5 19 March, "em honorem et" written over an erasure. 

6 19 March, i April, 29 May. The reference without doubt is to 
scutage. 

7 i April. 

8 19 March. This letter is even more closely followed than these 
notes indicate. 

9 10 May, 29 May. 10 End of line 10. " Cf. 29 May. 



44 APPENDIX 

tione terre sancte deberet expendere ; l in destruo 
tionem etiam terre sue profundere compellatur. 
Quodque nefandum est et absurdum. cum ipse Rex 
quasi peruersus deum et ecclesiam offendebat; illi 
assistebant eidem. Cum autem conuersus deo et 
ecclesie satisfecit ; ipsum impugnare presumunt.^ 
sicque uidetur quod conspirationem inhierint de- 
testandam ; ut eum taliter de Regno possint eicere. 3 
hominio et fidelitate sibi prestitis penitus uiolatis. 
quod quam crudele sit actu. et horrendum auditu ; 
cum perniciosi exempli materia sit et causa nostris 
temporibus inaudita ; manifeste cognoscit. quicumque 
iudicio utitur rationis. unde ualde dolendum existit. 
cum hoc in iniuriam summi dei. ecclesie Romarie ac 
nostrum contemptum. Regis et Regni obprobrium et 
periculum. et terre sancte ad cuius subsidium se de- 
uouerat Rex prefatus, nimium detrimentum redundat. 
Cum igitur debeamus et libenter uelimus pacem Regni 
Anglie procurare. ipsius turbationes 4 propellere, ac 
dicti Regis qui uasallus noster existit conseruare 
iustitias et iniurias propulsare. maxime 5 cum idem 
propter caracterem crusis assumptum. specialiter sub 
nostra protectione consistat ; prefatis Archiepiscopo 
et Suffraganis eius in obedientie uirtute districte 5 
dedimus in preceptis. quatinus nisi prefati Barones 
infra octo dies 6 post susceptionem litterarum nos- 
trarum, ab eis uel aliquo ipsorum diligenter ammoniti. 
receperint et seruauerint formam descriptam superius 
a [nobis] nuntiis eorum presentibus cum multa de- 
liberatione prouisam ; iidem omni cauillatione post- 
posita ; l eos et fautores ipsorum sublato cuiuslibet 
contradictionis et appellationis obstaculo ; excom- 
municationis mucrone percellant et terras illorum 

1 Cf. 20 May. 

2 Cf. John's letter to the Pope, 13 September, u Rotuli Patentes," 
i. 182. 

3 Cf. Roger of Wendover, iii. 323, and the "Miramur plurimum ". 

4 Cf. the " Miramur plurimum " with 29 May. It was impossible 
for anyone to interpret the phrase honestly as meaning anyone but 
the barons. 

5 " Miramur plurimum." 

6 Roughly the period between the exhibition of the letter at the 
supposed meeting of 16 August and the proclamation of the excom- 
munication at Staines (Walter of Coventry, ii. 223-4). 



APPENDIX 45 

[ecclesi] astico subiciant interdicto, facientes utramque 
sententiam per totam angliam singulis diebus domini- 
cis et festiuis sollempniter publicari. Ne igitur propter 
quosdam peruersos uniuersitatis sinceritas in Anglia 
corrumpatur. que hactenus ab infidelitatis contagio 
fuit prorsus immunis. Uniuersitati uestri per apos- 
tolica scripta precipiendo mandamus, et in remis- 
sionem iniungimus peccatorum. quatinus prefato Regi 
aduersus peruersores huiusmodi oportunum impendatis 
auxilium et fauorem. ita quod in confusionem ipsius et 
aliorum Regnorum, non possit tanta nequitia preualere, 
sed tempestate sedata ; Regnum ipsum optata tran- 
quillitate letetur. Scientes procerto. quod si Rex ipse 
remissus esset aut tepidus in hac parte, nos Regnum 
Anglie non pateremur ad tantam ignominiam et uili- 
tatem deduci, cum sciamus per dei gratiam et pos- 
sumus talium insolentiam castigare. Dat. Terentin'. 
xiiii Kal lulii. Pontificatus nostri Anno Octauodicimo. 

An endorsement in a later, but thirteenth-century, 
hand, possibly not much later than the original, reads : 
Innoc' de turbacione orta inter Regem I. et barones 
Anglie verbum ultimum competens est. Examinatur. 



-BARONS" AND "KNIGHTS" IN THE GREAT 
CHARTER. 

J. H. ROUND, LL.D. 

THE passage in the Great Charter on which I propose 
to comment is contained in its second "chapter," and 
is here italicized. 

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 we view these provisions in isolation and en- 
deavour to make the text here its own interpreter, 
we observe (i) that those to whom they apply are 
the tenants-in-chief by knight service; (2) that these 
are divided into three categories, (a) earls, barons, 
and " others " ; (b) earl, baron, and knight ; (3) that the 
holdings recognized are only two, viz. the " barony" 
and the knight's fee. It is important to observe 
that in this chapter no distinction is made between 
"greater" and "lesser" barons. 

The difficulty presented by these provisions is that 
no one has been able to give a satisfactory explanation 
of the difference between the baron and the knight 
or between the two holdings here specified, when 
their holders were alike tenants-in-chief by knight 
service. The barons' returns of their knights (" Cartae 
baronum ") in 1166 imply that all such tenants-in-chief 

(46) 



" BARONS" AND " KNIGHTS" 47 

stood on the same footing and that the "milites" were 
not among them, but were the under-tenants whom 
they had enfeoffed upon their lands. The above diffi- 
culty was already felt in the seventeenth century, when 
Selden considered that the holdings of tenants-in-chief 
were originally alike in status, but were subsequently 
differentiated, some being classed as " baronies" and 
-others as "knight's fees". 1 Madox, on the other hand, 
boldly assumed that the difference in status of the two 
holdings went back to the Norman Conquest, that 
" William I enfeoffed his Barons of their Baronies, 
-or his Knights of their Knights' Fees". 2 While I 
'do not presume to hope that I shall wholly solve a 
difficulty by which historians and antiquaries have 
been so long baffled, I shall endeavour to elucidate 
the problem to the best of my ability and to clear 
away some of the confusion by which it is at present 
surrounded. For it affects an important development 
in our constitutional history. 

That problem is the status and fate of those lesser 
tenants-in-chief who ceased to attend the Great Council. 
Were these lesser barons known as "Barones minores" 
or as "milites"? And, if the latter, is it possible to 
trace any connection between these "milites" and the 
representative " knights " of the shire ? 

There has been, if I may venture to say so, on the 
part of the commentators on the Charter, too much 
glossing and too much assumption. When we ex- 
amine the text itself, we find (i) that in the second 
chapter dealing with reliefs the two classes below 
the earls are the " baron " and the " knight " ; (2) that 

1 Selden's position is set forth fully by Hallam in his " Middle 
.Ages ". 

2 "Baronia Anglica " (1736), p. 26. So, too, we read that lands 
were granted by him to be held " in Baronage, in Knight-Service, or 
in Serjanty," etc. (p. 27). 



48 " BARONS" AND "KNIGHTS" 

in the fourteenth chapter dealing with summons to 
the Council the two classes below the earls are the 
"majores barones" and " all those (others) who hold of 
us in chief". It has been assumed, but not proved, that, 
in both chapters and for both purposes, the line of 
division is the same, and it follows, as a consequence 
of this assumption, that 

the "barones " of one clause of the Great Charter seem to be the 
" barones majores " of another. ... It seems that the " baro " 
who has a " baronia " in the one clause is the " baro major " who is 
to have a special summons in the other clause. 1 

Nor is this the only consequence which follows from 
that assumption. For it involves, we find, the still 
more improbable equation of the knight (" miles "), 
who held a knight's fee, in chapter 2 with the alleged 
"barones minores " of chapter 14. 2 I use the term 
" alleged " because, in spite of the freedom with which 
the phrase is used by the commentators on the 
Charter, 3 it is not found in that chapter or, indeed, 
anywhere else in the text of the document. This is 
no mere verbal quibble : the phrase "barones majores" 
does, indeed, imply that there were lesser barons, 
but it certainly does not involve the gloss that "all 

1 Maitland, "The Constitutional History of England," pp. 66, 80. 

2 Hallam, "Middle Ages" (1860), iii. 7; Davis, " England under 
the Normans and Angevins," pp. 325, 380; McKechnie, " Magna 
Carta " (1914), p. 200 : " the great men and the smaller men ('barones ' 
' majores ' and * minores '). The latter were called knights (' milites ') ". 

3 E.g. Stubbs, "Constitutional History" (1875), i- 3 66 : "the great 
distinction of ' majores ' and ' minores ' which appears in ' Magna 
Carta '"..." the distinction of ' majores ' and ' minores barones ' . . . 
appears perhaps in legal phraseology first in the ' Dialogus de Scac- 
cario ' and ' Magna Carta ' " ; Gneist, " History of the English Con- 
stitution" (1886), i. 289-90 ; Maitland, "Constitutional History of Eng- 
land," p. 80; Davis, "England under the Normans and Angevins" 
(1905), p. 380; McKechnie, "Magna Carta" (1914), pp. 251-2: 
"The Crown tenants on one side of this fluctuating line were ' barones 
majores ' ; those on the other ' barones minores' ". 



IN THE GREAT CHARTER 49 

those (others) who hold of us in chief" were " barones 
minores"; they might and, judging from chapter 2 
they would comprise at least the " knights " as well 
as the lesser barons, in which case these classes were 
distinct and the alleged equation disappears. 

Let me endeavour to make the point absolutely clear. 
The " tenants-in-chief by knight service " include, ac- 
cording to chapter 2, (a) barons, () knights. Chap- 
ter 14 introduces a further distinction by speaking 
of " majores barones ". This, no doubt, implies the ex- 
istence of" barones minores/' but it does not affect the 
" knights," who would remain, as before, distinct from 
all " barons," whether. " greater " or "less". There- 
fore "miles " cannot be used as the equation of "baro 
minor ". 

Putting the point differently, the line in chapter 2 
(which is concerned with reliefs) is so drawn as to 
include the minor barons with greater ones ; but in 
chapter 14 (which is concerned with separate summons) 
it is drawn athwart the baronage, and, by excluding the 
lesser barons, creates (so far as summons is concerned) 
a fresh class. Again, the phrase ' ' all (others) who hold 
of us in chief" (in chapter 14) may include, in addition 
to the lesser barons, not merely the knights, but others, 
such as tenants by serjeanty. Stubbs, indeed, admits 
in one place, 1 when speaking of " the greater and lesser 
barons," that "the entire body of tenants-in-chief 
included besides these (i.e. the greater barons) the 
minor barons, the knightly body, and the socage 
tenants of the crown,'" 2 all of whom, he deems, were 
entitled to be summoned by the general summons, as 
provided in chapter 14. It is true that he writes, in 
another place, of the phrase "Barones secundae dig- 
nitatis " (who are admitted to be identical with the 

1 "Constitutional History" (1875), i. 565. 

2 The tenants by serjeanty should be named before the socage tenants. 

4 



50 " BARONS" AND "KNIGHTS" 

" barones minores "), that " Hallam rightly understands 
this to refer to the knightly tenants-in-chief," 1 which 
virtually accepts the wrong equation ; but this only 
illustrates the need of greater clearness in definition. 

No one, I think, will suspect me of imperfect' 
appreciation where our great historian is concerned, 
but his work occasionally betrays a certain vagueness 
of conception, a lack of clearness in definition, which 
perhaps is sometimes met with in the work of English 
scholars. 2 For instance, we first find him treating of 
" the great council " in Norman times and recognizing 
the barons (greater and less) and the " knights" as 
distinct classes among its members. 3 But when he 
turns to the composition of this same great council 
" under Henry and his sons," he appears to lose sight 
of the essential distinction between these classes. 
This, I think, was due to the influence upon him of 
Gneist, to whom we may clearly trace the fundamental 
error of confusing the line drawn by the Charter (cap. 2) 
between the "baron" and the " knight" with that 
which it draws (cap. 14) between the "greater baron" 
and the tenants-in-chief below them. 

GNEIST. STUBBS. 

"From the first, the distinc- " Gneist points out that . . . 

tion between ' barones majores ' in the Exchequer the difference 

and ' minores ' was known in of relief between a hundred 

the Exchequer. Reliefs, ward- shillings for the knight and a 

ships, and marriages of the great hundred marks for the baron, 

1 " Constitutional History" (1875), i- l82 > note - 

2 This was also observed, I find, by M. Petit- Dutaillis, who wrote : 
" The French who have kept the ' classical ' spirit, and reserve their 
full admiration for that which is perfectly clear, will doubtless find that 
his thought is very often obscure and his conclusions undecided" 
("Studies supplementary to Stubbs," p. xii.). 

3 "Constitutional History," i. 366. 



IN THE GREAT CHARTER 51 

GNEIST cont. STUBBS cont. 

feudatories formed the principal in the court and in the shire- 
items in the financial adminis- moot, the interval between the 
tration. Whilst those of the two classes must have made 
single knight's fee were fixed at itself apparent. ' Dialogus de 
a hundred shillings, those of Scacc. ' ii. io." 2 
the greater lordships were not 
until later times fixed at a 
hundred marks." * 

By " the interval between the two classes," Stubbs 
here obviously means " the distinction of ' majores ' and 
4 minores barones ' ". Yet " Dialogus de Scacc. " ii. io, 
so far from making that distinction, actually denies 
that there was any, so far as relief was concerned. 3 
Here again the identity of "the knight" with the 
minor baron is wrongly assumed. In the " History of 
English Law," 4 Pollock and Maitland, it will be found, 
have fallen victims to the same confusion ; they write 
vaguely of " the greater men " and the " lesser men," 
and evidently treat as identical the two lines of divi- 
sion, which we have to keep distinct. 

Another error traceable to Gneist is the connection 
of the distinction between greater and lesser barons 
with two passages in Domesday. 

GNEIST. STUBBS. 

"At the time of Domesday " It may indeed be fairly con- 
Book the maxim held good, jectured that the landowners in 
that only vassals ('taini') who Domesday who paid their relief 
possess six 'maneria' or less, to the sheriff, those who held 
should pay ' relevium ' to the six manors or less, and those 
Vicecomes. Those possessing who paid their relief to the King, 

1 " History of the English Constitution," i. 290. 

2 Op. cit. i. 366, note. 

3 " Quidam enim de rege tenent in capite que ad coronam pertinent, 
baronias scilicet majores seu minores, etc. " (cf. ii. 24). 
4 Ed. 1895, i. 259-60. 



52 "BARONS" AND "KNIGHTS" 

GNEIST cont. STUBBS cont. 

more than six c maneria ' pay im- stood in the same relation to 
mediately into the Exchequer one another " 2 (as the greater 
(at all events this principle is and lesser barons), 
expressly mentioned in two 
counties). Dom. 280^, 298^." x 

Prof. Adams similarly refers to the antiquity of the 
distinction drawn in chapter 14 of the Charter : " See 
the difference in the payment of relief in Domesday, 
i. 280 (Vinogradoff, 'Society in the Eleventh Century/ 
p. 308, note 2)". 3 Now the two passages in Domes- 
day to which Gneist refers relate only to Yorkshire 
and to Derbyshire and Notts, and I have explained in 
" Feudal England " (pp. 72-3) that the practice described 
is part of that duodecimal system which is peculiar to 
the " Danish " district in the northern portion of Eng- 
land. It would not, consequently, be met with outside 
that district, that is to say, in the larger portion of the 
country. It could, therefore, have nothing to do with 
the later distinction between "greater" and "lesser" 
barons. 

This point is of some importance if improbable 
though it may seem we have here the origin of 
Stubbs' statement that the lesser tenants-in-chief paid 
their reliefs to the sheriff, but the greater ones direct 
to the Crown. 4 This statement is repeated without 
question by Maitland, 5 by Pollock and Maitland, 6 and 
by Prof. Medley. 7 It is, however, at variance with the 
evidence of the " Pipe Rolls," which proves that holders 

ll{ History of the English Constitution," i. 143-4. 

2 " Constitutional History," i. 366, note. 

3 "Origin of the English Constitution," p. 226, note. 

4 " Constitutional History" (1875), 5 - 5 6 4-5, 5 6 7 5 l82 - 

5 " Constitutional History of England," pp. 65, 80. 

6 "History of English Law" (1895), i. 260. 

7 "English Constitutional History" (1907), p. 30. 



IN THE GREAT CHARTER 53 

of a single fee or even less are found paying their re- 
liefs as directly to the Crown as a great baron. 

Hitherto I have been endeavouring to prove that 
the line drawn in the second chapter between 
" barons " and "knights" by the Charter has nothing 
to do with that which it draws in its fourteenth chap- 
ter, between the "greater barons" and the rest of 
the tenants-in-chief. A different and far more diffi- 
cult question is that of the identity of the "knights," 
mentioned in the second chapter. 1 For the wording 
of that chapter, as I contend, is sufficient to prove that 
they cannot possibly have been, as is so loosely as- 
sumed, the " minor barons ". How then did they differ 
in status from the "barons," from whom the amount 
of their relief distinguishes them so sharply ? 

It is usually endeavoured to interpret this chapter 
of the Charter by the help of (a) Glanville's book, () 
the " Dialogus de Scaccario," both of them written in 
the latter part of the reign of Henry II. 2 Now what 
Glanville says is this : 

Cum autem heres masculus et notus heres etatem habens relin- 
quatur, in sua hereditate se tenebit ut supradictum est etiam 
invito domino, dum tamen domino suo sicut tenetur suum 
offerat homagium coram probis hominibus et suum rationa- 
biJe releuium alicujus iuxta consuetudinem regni, de feodo 
unius militis centum solidos ; de socagio vero quantum valet census 
illius socagii per unum annum ; de Baroniis vero nihil certum 
statutum est, quia iuxta voluntatem et misericordiam domini Regis 
solent Baronie capitales de releviis suis domino Regi satisfacere. 
Idem est de serjanteriis (ix. c. 4). 

1 See p. 47> 

2 " History of English Law " (1895), i. 289, where it is loosely stated 
that "The Dialogue on the Exchequer tells us that the relief for the 
knight's fee is loos. ". It is, we shall find, most important to note that 
the Dialogue limits its statement to knights' fees held in chief " ratione 
baronie cujuslibet" or "de eschaeta". 



54 " BARONS" AND "KNIGHTS" 

The obvious difficulty of this passage is that Glan- 
ville is here speaking of reliefs due to a lord ("dominus ") 
and yet includes among them the reliefs due from 
"baronies" to the King. Mr. McKechnie claims that 
" Glanville's words are ambiguous," and there seems 
to be, among the latest commentators, some difference 
of opinion as to whether they cover the case of a 
knight's fee held in chief " ut de corona ". The authors 
of the " History of English Law " l are alleged to hold 
that they do, though this is by no means clear. On 
the other hand, the learned editors of the " Dialogus 
de Scaccario " consider that the holder of such a fee 
did not enjoy the privilege of a fixed relief, 2 and in this 
they are followed by Mr. McKechnie 3 and by Prof. 
Adams 4 who considers him to be right. The view of 
these writers is based on the "Dialogus," which, 
undoubtedly, limits the privilege to those knights' fees 
which were held "ut de honore ". 

Si vero decesserit quis tenens Si veto de eschaeta fuerit, 
tune de rege feodum militis, non que in manu regis, deficiente 
quidem ratione corone regie, herede, vel aliter, inciderit, pro 
set potius ratione baronie cuius- feodo militis unius hoc tantum 
libet, que quouis casu in manum regi, nomine relevii, soluet, quod 
regis delapsa est, sicut est epis- esset suo domino soluturus, hoc 
copatus vacante sede, heres iam est centum solidos (II, xxiv.). 
defuncti, siadultus est, pro feodo 
militis c. solidos numerabit, pro 
duobus x. libras, et ita deinceps, 
iuxta numerum militum, quos 
domino debuerat antequam ad 
fiscum deuoluta foret hereditas. 
(II, x. E). 

These statements are exceedingly precise, and the 
editors are justified in inferring from them "that the 

: Ed. 1895, i. 289. 2 Op. cit. 1902, pp. 222-3. 

3 "Magna Carta" (1914), p. 197. 

4 "Origin of the English Constitution (1914)) P- 2I 4- 



IN THE GREAT CHARTER 55 

tenant of a single knight's fee would be a ' Baro 
minor,' since the certainty of relief depends not on 
the extent of the estate held, but on its being held of 
a mesne lord". 1 On the other hand, this is at direct 
variance with the second chapter of the Great Charter, 
which draws its line of division between " barons " and 
"knights," unless we restrict the latter to those who 
held " ut de honore ". This, we shall see, appears to be 
opposed to another chapter of the Charter as well as to 
the obvious meaning of chapter 2 itself. Unfortu- 
nately, Mr. McKechnie, seeking to produce record 
evidence that only the " tenants of mesne lords . . . 
had their reliefs fixed," states, by a singular error, that 

Madox (i. 315-16) cites from " Pipe Rolls " large sums exacted by 
the Crown : in one case ^300' was paid for six fees or ten times 
what a mesne lord could have exacted (" Pipe Roll," 24 Hen. II). 2 

The reference is obviously to the entry which Madox 
cites correctly : " Tedbaldus de Valeines debet xxx 1. 
(sic) de relevio vj militum ('Mag. Rot.' 24 Hen. II)." 3 
The amount, therefore, was not 300, but ,30, the 
very amount that "a mesne lord could have exacted". 

The knight's fees to which the " Dialogus " refers in 
the above parallel extracts cannot well be those men- 
tioned in the second chapter of the Charter, because 
their case is specially dealt with in its forty-third chapter. 
Moreover, if that second chapter is read with care, it 
will be seen that the knight's fee there spoken of had 
been held, not of a mesne lord, but directly of the 
Crown, like a barony. Otherwise it would be tempting 
to identify the two, as it would dispose of the difficulty 
raised by the passage in chapter 2. Mr. McKechnie, 
however, does identify the two, but admits that, on 

: " Dialogus de Scaccario " (1902), p. 222. The phrase "Baro 
minor " is their own. 

2 "Magna Carta" (1914), p. 197, note. 

3 "Exchequer" (1711), p. 216. Cf. "Pipe Roll," 24 Hen. 1 1, p. 75. 



56 " BARONS" AND " KNIGHTS" 

this hypothesis, " the need for this reference (in cap. 43) 
to relief is not, at first sight, obvious". 1 It seems to 
be clear, at least, that the distinctive privilege of 
paying only $ relief on the knight's fee extended to 
three classes of fees : (i) those specially mentioned in 
chapter 43, which were held of an escheated honour, 
such as that of Wallingford, etc. ; (2) those which were 
held of a fief temporarily in the hands of the Crown, 
owing to wardship or other cause ; (3) those held of 
an ecclesiastical fief which was in the hands of th e 
Crown during a vacancy. 2 For all three classes were 
affected by the same principle, viz. that the King stood 
in the shoes of the former holders of the fief and could 
therefore, only exact from the under-tenants the same 
dues as their former lords exacted. Speaking of this 
forty-third chapter, Mr. McKechnie admits that, though 
it only mentions escheats, " the same rule applied to 
subtenants of baronies in wardship (which was an- 
alogous to temporary escheat) " or of ecclesiastical fiefs 
during a vacancy. 3 

It is, however, conceivable that, as Mr. McKechnie 
suggests, John wanted to draw a distinction by which 
he could treat knights' fees held " de eschaeta " as held 
of him "ut de corona" and, therefore, liable, like 
baronies, to an arbitrary relief. But, at least under 
Henry II, the " Pipe Rolls " do not show any trace of 
such a claim and confirm the evidence of the "Dia- 
logus". Nor has any evidence, I believe, yet been 
produced in support of the suggestion. 

With almost monotonous regularity the " Pipe Rolls " 
record " reliefs " on fees held " de excaeta " at the rate of 

1 "Magna Carta," p. 413, note. 

2 Classes 2 and 3 are distinctly covered by the "Dialogus" in II, 
x. E., and class I in II, xxiv. 

3 "Magna Carta" (1914), p. 412, note (cf. "History of English 
Law" [1895], i. 261). 



IN THE GREAT CHARTER 57 

5 on the fee. For instance, in 1172, Michael de 
Preston pays 22 IDS. relief on 4^ knights' fees " de 
escaetis Regis ", l Similarly, on a lay fief, Nigel, son 
of the chamberlain, pays $7 IDS. on u fees held of 
the " Honour " of Richmond, 2 then in the King's hands, 
in ii75, 3 while, on an ecclesiastical fief, Hamo Fitz 
William pays iS 155. on 3 J fees and Robert Brutun 
2 IDS. on half a fee, held in each case of the See of 
Canterbury, in ii;i. 4 It is needless to multiply in- 
stances of the rule, but exceptions to the rule are 
worth noting, though they are not easy to find. And 
here it may be observed that the evidence of the " Pipe 
Rolls " is by no means so easy to use as might be 
imagined. Extreme care in identifying the fees on 
which relief is paid is constantly required, as there is 
often nothing to show whether they are held of a fief 
or an escheated " Honour," or directly of the King "ut 
de corona". For instance, in 1181, two men are 
charged 30 marcs relief for two knight's fees which had 
been Robert of Tilbury's. 5 There is nothing to identify 
these fees or to explain why the relief was 20, instead 
of 10. But they can hardly fail to be the two fees 
which a later Robert of Tilbury held of the " Honour " 
of Rayleigh (forfeited by Henry of Essex) in West 
Tilbury and Childerditch (or Dengey), Essex. 6 

Again, Gilbert son of Gerbert "de Archis," who 
pays 50 marcs "pro fine terre patris sui " in n82 7 
-eludes us, though the mention of a "fine" instead of 
a "relief" leads one to look for his father and himself 
among the holders of " baronies ". 

111 Pipe Roll," 18 Hen. II, p. 36. "'Ibid. 21 Hen. II, p. 5. 

3 Again, in 1 187, when the Earl of Gloucester's fief was in the King's 
hands, Henry de Umfraville and Roger de Maisi, each of whom held 
9 fees of it, paid respectively ^45 on succession. 

4 "Pipe Roll," 1 7 Hen. II, p. 142. * Ibid. 27 Hen. II, p. 105. 

6 " Red Book," pp. 503, 738. ' P. R." 28 Hen. II, pp. 18-19. 



58 " BARONS" AND "KNIGHTS" 

Gilbert, however, is found only as holding two- 
knights' fees of the Honour of Tickhill in I2O3. 1 His. 
name is not found in a feodary of the Honour later 
in the reign, but we do there find " Malveisin de 
Grava " as the holder of two fees. 2 This entry is 
explained by one on the "Pipe Roll" of 1209 which 
shows us Malveisin de Hercy and William Ruffus 
charged 50 marcs and two palfreys for the suc- 
cession of their wives to the holding of this Gilbert 
"de Archis," their father. This holding was in Grove 
(Grava), Notts, which thus descended to the Hercys 
of Grove. 3 Now this case might possibly be claimed 
as supporting the view that John was trying to extort 
baronial reliefs from fees held "de eschaeta " ; but it 
has been shown that the holder of these fees had been 
similarly charged 50 marcs in 1 182, and, moreover, the 
" Pipe Rolls " under John show him regularly paying 
scutage, not as the holder of a " barony," but only as 
a tenant of the Honour of Tickhill. 

Mr. McKechnie's actual comment on the "escheat" 
portion of the Charter (chapter 43) is this: 

This chapter reaffirms a distinction recognized by Henry II, 
but ignored by John . . . John ignored this distinction, extending 
to tenants "tit de escaeta " the more stringent rules applicable to 
tenants " ut de corona ". Magna Carta reaffirmed the distinction. 4 

It appears to me that this conclusion is based on the 
assumption that, because the Charter limits the rights 
of the Crown, it was John who had attempted ta 
extend these rights. My own position is that the 
" Pipe Rolls " show the Crown's right to feudal inci- 
dents to be already extended under Henry II. 

We have now seen that chapter 2 of the Great 

1 " Red Book," p. 182. *Ibid. p. 593. 

3 See Tonga's "Visitation of the Northern Counties," ed. W. H. D. 
Longstaffe (Surtees Soc., vol. 41), p. 7, note. 

4 Op. cit. pp. 411, 413. 



IN THE GREAT CHARTER 59 

Charter, from which this paper started, cannot apply 
to any of the three categories of " knights " dealt with 
by the "Dialogus," that is to say, not to those who 
held of a lay or ecclesiastical fief temporarily in the 
King's hands, because the text forbids it, or to those 
who held of an escheated Honour, because, in addition 
to straining the text, such knights are specially dealt 
with in chapter 43, which is concerned with es- 
cheats. 1 Who then are the " knights " that in chapter 2 
are distinguished so sharply from " barons " by the 
" relief" on their succession? 

The ultimate and indisputable evidence on which 
the answer depends is found in the " Pipe Rolls " them- 
selves, but that evidence has to be combined with that 
of the various returns of knights' fees, especially the 
"Cartae baronum " of 1166. It may, however, be said 
at once that the " Pipe Rolls " do show a very marked 
distinction between the arbitrary sums charged as 
relief on baronies, and those of 5 or some multiple 
thereof charged on the knights' fees. Normally 
though not always the former are further distin- 
guished by the word " finis," which is rightly used, as 
implying a composition. The difficulty about the 
latter is that we have to make sure that the "fees" 
are held, as strictly as the " baronies," " ut de corona ". 2 

1 Possibly the right conclusion here is one which has not yet been 
suggested, namely, that the Charter nowhere provides for the case of 
knights' fees temporarily in the King's hand, owing to a wardship or a 
vacancy, because the rights of their holders had not been encroached 
upon by the Crown. Escheats, however, seem to have been recognized 
as a category apart : the reason for this may have been that in early 
days, e.g. in the case of the forfeited fiefs of the Bishop of Bayeux and 
the Count of Mortain, the holdings of large under-tenants had actually 
been converted by the Crown into separate baronies (owing the service 
of five or ten knights) and appear as such in 1 1 66. These constituted 
awkward precedents. 

2 Prof. Adams states that "the relief of a single knight's fee as re- 
corded in the Pipe Rolls seems to be frequently 100 shillings when 



60 "BARONS" AND " KNIGHTS" 

Although we are not here concerned with the reliefs 
on serjeanties, it is advisable to note that those on the 
"Pipe Rolls" confirm Glanville's statement as to their 
arbitrary character. For instance, in 1163, the charge 
of 100 marcs on Ralf Fitz Wigein "pro relevio 
terre sue"; 1 was on a serjeanty of some value, 2 
though the fact is not stated. So also was that of 
75 marcs (50), charged to Robert Fitz Hugh, in 
1 1 86, "pro fine terre sue". 3 This "terra" was at 
Upton, granted by Henry II. The tenure of his suc- 
cessors, the Chanceus family, proves that it was held 
by the service of a serjeant for forty days in war, 
which must not be confused with knight service. 

That "baronies" were liable to arbitrary relief is 
admitted on all hands. But in order to ascertain the 
sums exacted under Henry II, it is not enough to copy 
the extracts made by Madox ; one has to examine the 
" Pipe Rolls " for oneself. And even then evidence may 
be missed ; for the phrase " finis terre " is only indexed 
in some of the printed volumes of " Pipe Rolls," though 
" relevium " is indexed regularly. 4 It is for the former 
that we have, in the case of baronies, to look. It would 
be necessary, therefore, to read through the whole of 
the volumes in order to make one's list exhaustive. 
The table on the opposite page, however, will illustrate 
the nature of the sums paid under Henry II. 

The first point to strike one here is that most of 
these sums are either 200 or 100, 200 marcs or 100 
marcs. This is an unexpected result, the more so 
as no relation can be traced between the size of the 

held (sic) directly of the king" (" Origin of the English Constitution " 
p. 214). 

a " Pipe Roll," 9 Hen. II, p. 31. 

2 " Testa," pp. 87-8. 3 " Pipe Roll," 32 Hen. 1 1. p. 6. 

4 Neither of them is indexed in the volumes of " Pipe Rolls " issued by 
the Record Commission. 



IN THE GREAT CHARTER 



61 



Year. 


Baron. 


Fees. 





Marcs. 


1156 


Robert de Helion 


I0(?) 





IOO 


1158 


William Paynel .... 


I5(?) 





IOO 


1165 


Roger d'Oilli .... 







200 


1166 


Helias Giffard .... 





100 





1166 


Alan de Furneaux 








IOO 


1166 


Walter " Brito "... 


15 


200 





1167 


Humfrey de Bohun . 





2OO 





1167 


Richard de Siffrewast l 








IOO 


1168 


John d'Aiencurt 


40 





IOO 


1168 


William de Scalariis " . 


i5(?) 


IOO 





1171 


William Fossard 


33i 





80 


1176 


John the Constable (of Chester) 2 







400 


1176 


William de Montacute 


10 (?) 





IOO 


1177 


William Chendeduit . 







200 


1178 


Robert de Lacy 








1000 


1 1 80 


Hasculf de Tani 


74 


IOO 





ii8i 


Hugh de Gournay 





IOO 





1182 


Nicholas de Meriet . 


24 


20 





1183 


Guy de Rochford 







40 


1186 


Hamo Fitz Meinfelin 


IS 





2oa 


1186 


Barony of Eaton Hastings 


5 


. 


200 


1186 


Hugh de Say .... 


!5(?J 


200 





1186 


Richard Fitz John 







200 



barony and the relief exacted. Moreover, of these 
four sums, only two exceed the maximum fixed by the 
Charter, while one is actually below it. This empha- 
sizes the contrast between the arbitrary " fine " from 
a barony and the fixed sum of 100 shillings due 
from a knight's fee. When we confine our attention 
to the figures for a single county, the contrast, we 
shall find, becomes striking. 

The evidence for Northumberland is of peculiar 
value for more reasons than one. In the first place, 
the proportion of single fees held in chief is exception- 
ally large, and, in the second, we have copious informa- 
tion on the constituents of the holdings together with 
notable evidence on the use of the word "barony". 3 

1 For Chesham. 2 For his mother's land. 

3 "Testa," pp. 381-8, 392-3; "Red Book," pp. 436-44, 562-3; 
" Reports on the Dignity of a Peer," vol. ii. pp. 91-7. 



62 "BARONS" AND "KNIGHTS" 

Let us first take a typical five-knight barony, that of 
the Bertrams of Mitford. 1 . In 1166 Roger Bertram 
certified that it was held by the service of five knights. 2 
In 1177 his successor, William Bertram, was called 
upon to pay " pro fine terre patris sui " no less than 
200* In 12 12 another Roger Bertram is returned as 
holding the " barony " by the service of five knights. 4 
Here then is a clear case of an undoubted * 'barony "- 
by no means a large one, as baronies went charged 
-exactly twice the amount prescribed in the Great 
Charter as the rightful and ancient (" antiquum ") relief. 
We have thus a striking illustration of the fact that, as 
I have insisted, 5 the feudal extortions remedied by the 
Charter were not, as is so often implied, 6 introduced 
by John, but are found in full existence under Henry 
II. Again, we observe, that the sum exacted is rightly 
styled " finis terre," not " relevium," for it represented, 
as the " Dialogus " and Glanvill's book explain, a special 

1 There was another Bertram barony in the county, that of the 
Bertrams of Bothal (three knights). 

2 " Et sciatis, domine, quod feodum meum non debet vobis servitium 
nisi tantum de v militibus" ("Red Book," p. 438). 

3 "Pipe Roll," 23 Hen. II, p. 83. 

4 " Rogerus Bertram tenet in capite de domino Rege baroniam (sic] 
de Midford per servicium v militum " ("Testa," p. 392). "Rogerus 
Bertram baroniam (sic] de Mytforde per vfeoda" ("Red Book," p. 
563). "Baronia de Mitford" ("Testa," p. 383). 

5 In my introductions to the later " Pipe Rolls " of Henry II and to 
the " Rot. de Dom." (Pipe Roll Soc.). 

6 E.g. McKechnie, " Magna Carta" (1914), pp. 196, 198. So also 
Petit-DutaiJlis, " Studies Supplementary to Stubbs' Constitutional His- 
tory" (1908), p. 129 : "Its most salient characteristic is the restoration 
of the old feudal law, violated by John Lackland, and perhaps its 
practically most important clauses, because they could be really applied, 
were that for example which limited the right of relief. . . ." Also 
"History of English Law" (1895), P- I 5 I : "John in these last years 
has been breaking the law, therefore the law must be defined and set 



IN THE GREAT CHARTER 63 

-commutation of the King's right to exact, in the case 
of a " barony," an arbitrary sum. 

From this Northumberland " barony " we will pass 
to a smaller one, the story of which is more complicated 
and has to be reconstructed. In 1163 William de 
Greinville 1 was holding what we learn from evidence 
of three years later was a " barony " held by the ser- 
vice of three knights. ' 2 Next year it had passed to two 
co-heiresses, of whom Ralf de Gaugy married the 
elder, and Hugh de Ellintone (i.e. Ellington) the 
younger. This we learn from the same evidence, 
namely from their respective returns in u66. 3 The 
41 Pipe Roll " of 1 164 shows each of them paying a sum 
4i pro relevio terre sue ". 4 Ralf pays 40 marcs and 
Hugh 20, so that the whole "relief" exacted was 
60 marcs (40) though the service due from the 
"barony" was only that of three knights. Hugh, 
however, admitted that his tenure was baronial, 5 and 
the entire holding appears, in 1212, as a " baronia," in 
the hands of Ralf de Gaugi. 6 This exposed it to an 
arbitrary " relief" (as the payment is in this case 
termed) in 1164, namely 40, in lieu of the 15 which 
would have been payable if the holding had not been 
a " barony," but three knights' fees. 

Let us now compare with these " baronies " three or 

1 " Pipe Roll," 7 Hen. II, p. 23. 2 Red Book," pp. 438-9, 443. 

3 Ibid. The editor gives (p. 439) the wrong reference for the " carta " 
of Ralf de Gaugy, and makes the unlucky suggestion (by way of 
emendation) that Ralf may have been the son of the elder sister. 

4 " Pipe Roll," 8 Hen. II, p. 11. The fact is obscured by Hugh's 
name being there printed as "de Clenton ". 

5 " Ego teneo dimidiam baroniam " (see, for its constituents, " Testa," 
pp. 382, 392). Compare with this "dimidia baronia," the "baronia 
integra " of the Great Charter, and observe that the baronial tenure is 
not affected by subdivision, though Ralf and Hugh each claim to owe 
the service of " a knight and a half " (only). 

6 "Testa," p. 392 (cf. " Red Book," p. 439). 



64 "BARONS" AND "KNIGHTS" 

four Northumberland holdings, the returns for which 
were similarly made among the "Cartae baronum" in 
1 1 66. For these were similarly held in chief, though 
each of them owed the service of one knight at most. 

William, son of Siward, who made return in 1166 
that he held a knight's fee by the service of one 
knight l is proved by his tenure of Gosforth to be a 
Surtees, 2 and, therefore, identical with the William 
u de Tesa" (or "Tesia") of ii6i-n62. 3 In 1174 his 
successor, Randulf " de Super Teise," was charged 
100 shillings (5) "de relevio suo ". 4 This was 
the fixed relief on a knight's fee. 5 The next case is 
that of Ernulf de Morewic, who returned his holding, 
in 1 1 66, as a knight's fee, 6 " of the old feoffment ". In 
1177 his successor, Hugh de Morewic, was charged 
100 shillings (5) for his "relief". 7 This Hugh 
appears as one of Henry's ministerial officers towards 
the end of the reign, and it is interesting to note that 
so early as 1161 he has a discharge "precepto Cancel- 
larii " of 2 marcs charged to his father ; 8 which sug- 
gests that he was already in official employment. The 
third case is that of Robert Caro, who returned himself, 
in 1166, as holding five carucates as one knight's fee. 9 
In 1179 Peter "Carhou" accounted for 100 shil- 
lings for his relief. 10 Even more notable is the case 

^'profeodo et servitio j militis " ("Red Book," p. 440). But see 
further, below. 

2 See "Testa," p. 385 ("Radulfus super Tayse") and p. 392 
("Ricardus Curtayse " [sic]), 

3 "Pipe Rolls," 7 Hen. II, p. 24 ; 8 Hen. II, p. 10. 

4 Ibid. 20 Hen. II, p. 107. 

5 The service is given (apparently in error) as half a fee ("Testa," 
p. 385) or two-thirds (ibid. p. 392). 

6 " feodum j militis " (" Red Book," p. 438). 

7 " Pipe Roll," 23 Hen. II, p. 84. * Ibid. 7 Hen. II, p. 24. 
9 "pro j feodo militis" (" Red Book," p. 444). 

10 " Pipe Roll," 25 Hen. II, p. 28 (cf. "Red Book," p. 178). 



IN THE GREAT CHARTER 65 

of Godfrey Baiard, who returned his holding in 1166 
as one-third of a fee, 1 and who had been charged the 
year before 335. 4d. ; 2 that is, just a third of the regu- 
lation $. 

The importance of this evidence is that in each 
of three cases where the holding was one fee or less, 
and where the holding was not part of an escheated 
honour, relief was uniformly charged at the rate of $ 
a fee. On the other hand, a three fee " barony" was 
charged, we have seen, 40, and a five fee " barony " 
200. Moreover, in 1 168 an entry on the " Pipe Roll " 
runs : " Idem vicecomes redd. comp. de feodis Baron- 
um et militum qui de rege tenent in capite in Ballia 
sua qui Cartas de Tenemento suo Regi non miserunt ". 3 
The sheriff was here dealing, as I was above, not with 
holdings on escheated "honours," but with those 
which were held " in capite ut de corona ". If we now 
pass to the other end of England, we find in Devon 
Geoffrey del Estre paying $ in 1 183 as the relief on a 
knight's fee. 4 There is nothing by which he can be 
identified in the "Cartae" of 1166, but an analysis of 
the scutage returns shows that the " Robertus filius 
Galfridi " of 1 166 (" Red Book " p. 258) must have been 
Robert, son of Geoffrey de L'Estre, and father of the 
Geoffrey who succeeded in 1 183. Again, turning from 
Devon to Norfolk, we find William de " Colecherche " 
returning his small tenement as held by the service of 
" half a knight ". 5 His son Richard, on succeeding 

1 " Red Book," p. 442. 2 " Pipe Roll," 1 1 Hen. II, p. 27. 

* Ibid. 14 Hen. II, p. 172. The number of fees he assigns 
to these " barons " and " knights " is Balliol 30, Walter Fitz William 3, 
Philip de Humez 2, Odinel d'Umfreville 2, Robert de Bradeford i, 
William de (A)mundeville i. As a matter of fact, Walter Fitz 
William had duly made his return (" Red Book," p. 436). 

4 "pro relevio feodi j militis" (" Pipe Roll," p. 117). 

5 " servitium dimidii militis " (" Red Book," p. 400). 



66 "BARONS" AND "KNIGHTS" 

him, paid for his " relief" 50 shillings, 1 the sum due on 
half a fee. In these two cases we can clearly identify 
the holdings among those held "in capite " in 1166. 

It has, at least, now been clearly established that 
those who made their returns in 1166, although then 
treated, apparently, as being all on the same footing, 
were not treated alike in the matter of their reliefs. 
Those who held, in the cases examined, one fee or less, 
were only called upon to pay at the rate of 5 on the 
knight's fee. 

Are we then to infer that the distinction between 
the two reliefs was that, if a man held a single fee or 
less, he paid 5 (or less pro raid}, while if he held 
more, he was liable to a relief of 100 as holding "by 
barony " ? It would seem that such a proposition 
need only be stated to be rejected as absurd. There 
is, however, a remarkable case discussed in the 
" Reports on the Dignity of a Peer," and known to us 
from a petition to Parliament in 1354 (28 Edw. Ill), 
which certainly seems to show that, at this date, that 
proposition was the law. 

In the Parliament of the 28th of the King, Robert de la Mare 
suggested, that after the Death of Peter de la Mare, his father, he 
had attorned to the King, and done Homage, for a Moiety of the 
Manor of Lavynton, for which Moiety he came into the Ex- 
chequer, and acknowledged his Tenure, that he held the Moiety 
of the said Manor by the Service of One Knight's Fee, and for 
that fee had paid One hundred Shillings for his Relief; neverthe- 
less, for that in the Red Book of the Exchequer it was found, 
that Henry the Second, to marry his Daughter to the Duke of 
Saxony, demanded of every Knight of his Kingdom a Mark in 
Aid of that Marriage, and commanded that every Prelate and 
Baron should certify to the said King in Writing how many 
Knights he held of the King in Chief, among which Prelates 
and Barons one Peter de Mara had certified that he held Lavyn- 

a "Pipe Roll," 21 Hen. II, p. 124. 



IN THE GREAT CHARTER 67 

ton by Two Knights' Fees, the Barons of the Exchequer insisted 
that Peter de Mara was Ancestor of the Petitioner, and that the 
Petitioner held by Barony, and for Service of Barony they charged 
him of his said Relief, where he held only the Moiety of the 
Manor by the Service of One Knight's Fee only ; and he prayed 
a Writ to the said Treasurer and Barons, that if they could not 
find, by Inquest or otherwise, that the said entire Manor was held 
by greater Service than Two Fees, and that there is another 
Tenant of the other Moiety of the Manor, that then they would 
accept his Relief for One Fee only, notwithstanding the things 
found in the Red Book mentioned. 

A writ was accordingly ordered to the Treasurer and Barons of 
the Exchequer, that if they should find, by Record, or other 
Remembrances of the Exchequer, or by Inquest, or in any other 
proper Manner, that the Petitioner held the Moiety of the Manor 
by the Service of One Knight's Fee, as supposed by the Petition, 
and not by Barony, that then, having received from him " solonc 
Taferrant " of One Fee for his Relief, they should discharge him 
of the Remainder, notwithstanding the Name of the said Peter 
was found in the Red Book amongst the Names of the Barons. 

It seems from this Entry, that in the Reign of Edward the 
Third, holding by Barony, and holding by Knights' Service only, 
were so far considered as distinct, that if a Man held by the 
Service of a Knight's Fee, he was subject only to a Relief of 
One hundred Shillings, and if he held by Barony, he was charge- 
able with One hundred Marks for his Relief, though his Barony 
consisted only of Two Knights' Fees. The Entry shews also that 
the Red Book of the Exchequer was then considered as a Docu- 
ment of Such Degree of Authority in the Court of Exchequer, 
that the Court had acted upon it. The whole Proceeding, how- 
ever, seems to shew that a Writ of Summons to Parliament did 
not then necessarily follow Tenure by Barony ; the Committee 
not having found any Person of the Name of Mara, at any Time 
summoned to Parliament. Not having discovered what was 
done on the Reference of this Petition to the Exchequer, they 
are unable to give any further Information on the Subject. 1 

1 Vol. i. pp. 325-6 (from " Rot. Parl." Edw. Ill, p. 263). 



68 " BARONS" AND "KNIGHTS" 

As this is an unsatisfactory comment on the case, 
it seems desirable to state the facts. In 1166 Peter de 
(la) Mare returned himself, under Wilts, as holding 
(Steeple or Market) Lavington by the service of two 
knights. 1 He was succeeded by Robert, and Robert 
by Peter, de la Mare, who paid scutage on two fees. 2 
A notable entry in the "Wiltshire Inquisition " of 1212 
(?) records the " Baronia (sic) Roberti de la Mare, 
ij feoda," 3 though in what is printed as the same list 
we find : 

Galfridus filius Petri, j feodum in Lavintone. 

Robertus de la Mare, j feodum in Lavintone. 4 

In any case the manor came to be held in two 
moieties some years later, for William de la Rokele sued 
Peter de Mare for it in 5 Henry III (i22O-i22i), 5 and 
must have obtained a moiety of it, as we learn from 
the "Testa," 6 the evidence of which is confirmed by 
the "Hundred Rolls". 

The "Inquisitiones post mortem" bear similar 
witness ; that on Peter de la Mare gives the holding 
as one fee, 7 and so does that on a later Peter de la 
Mare in I292; 8 though that on Robert de la Mare, 
in 2 Edward II, records it as half a fee. 9 It is clear, 
therefore, that Peter de la Mare, as he claimed in his 
Petition, did not owe the service of more than one 

1 " habeo Laventonum, vestri gratia, in dominio pro servitio duorum 
militum" ("Red Book," p. 246). 

2 Ibid. p. 152 (A.D. 1202). 3 Ibid. p. 483. 4 Ibid. p. 481. 

5 Curia Regis Roll, 5 Hen. III. No. 79. See Wrottesley's 
" Pedigrees from the Plea Rolls," p. 261. 

6 The entries on p. 1510 are decisive (cf. p. 141^., where Peter de 
la Mare's holding is given as one fee). 

7 " Cal. of Inq." i. No. 927. * Ibid. iii. No. 34. 

9 Ibid. v. No. 136. There is a paper on this family in "Wiltshire 
Notes and Queries," Nos. 33, 34 (1901), but, as it ignores the "Red 
Book" and the " Testa," it only begins the pedigree with the Peter of 
the earliest Inquisition. 



IN THE GREAT CHARTER 69 

knight, and, therefore, by the admission of the Crown, 
he was only liable to a relief of 5 and not to that of 
;ioo, which would have been due from a "barony". 

On the other hand, there is a decided case of earlier 
date (1306-1307) which points in quite a different 
direction for the legal interpretation, at its date, of 
the clause about reliefs. William de Briouze (Braosa), 
son of William, raised a question as to the relief due 
from him for the "castle of Bramber," Sussex, and 
the "land of Guher," i.e. Gower, the South Wales 
peninsula. He boldly claimed that, in the host, 
Bramber had only rendered the service of one knight. 1 
The barons of the Exchequer decided the question (i) by 
reference to the "book of fees," (2) by evidence that 
William and his predecessors had always been amerced 
as barons without protest. They found that " in Libro 
Feodorum Brembre repertum est sub titulo de Honor- 
ibus," and that "tantum debere solvi pro relevio de 
Honore quantum pro relevio Baroniae". The refer- 
ence to the " Book of Fees " must, apparently, be to the 
"Testa de Nevill," p. 2220, where the tenants ot 
knights' fees " de Brembre " are all entered as holding 
41 de eodem honore ". But it is difficult to understand 
why these entries should be chosen when on p. 223 
the same list is headed "Isti tenent de baronia de 
Brembre . . . Johannes le Cunte tenet iiij feoda . . . 
de eadem baronia ". Moreover, on p. 226^ we read : 

In rapo de Brembre Willelmus de Breuse et antecessores ejus 
tenuerunt rapum de Brembre in capite de domino Rege et ante- 
cessoribus ejus ex conquestu Anglic per servicium x militum. 

The barons decided, quite rightly, that William 
should be charged relief for Bramber as for a barony. 2 

1 "Willelmus et antecessores sui defenderunt castrum et terrain de 
Brembre pro servicio unius feodi militis." 

2 " Oneretur de relevio suo de Castro prsedicto tanquam de relevio 
Baroniae." The whole proceedings are printed in Madox' " Exchequer " 



70 "BARONS" AND "KNIGHTS" 

But far more important for our purpose is their 
decision as to Gower. William pleaded : 

Dicta terra de Guher tenetur de rege in Capite per servicium 
unius feodi militis, de dono et feoffamento Regis Johannis. 

In proof thereof he produced a charter of John, 
24 February, 1202-1203 (4 John) granting to his pre- 
decessor, William " de Braosa," the whole land (" terra ") 
of "Guher " with all its appurtenances in Wales, 1 " per 
servicium unius militis pro omni servicio ". This was 
accepted by the barons as proof that he held " Guher " 
"pro uno feodo militis," and he was accordingly 
charged only the 5 relief "pro terra de Guher in 
Wallia quae tenetur de Rege in capite per servicium 
unius feodi militis ". 

In this case the barons seem to have deemed the 
documentary evidence decisive. We must, therefore, 
conclude that in all the cases in which such evidence 
could be produced, the tenure was admitted to be 
"knight's fee," not "barony". Now this class of 
knights, those who were enfeoffed by charter, must 
have formed a fairly numerous body, who could all 
claim that they did not hold by " barony " and were 
therefore not liable to the relief due from a baron (i.e. 
the holder of a barony). It was the custom under 
Richard and John (and even under Henry II) to grant 
considerable estates as single knight's fees, as we 
learn from the entries in the " Red Book " of holdings 
created subsequent to n66. 2 The existence of this 
class of holdings seems to have been overlooked by 
those who have discussed the subject. The only point 
that remains doubtful is whether holdings so created 

(171 1), pp. 372-4 from the " PleaRolls". See also "Baronia Anglica," 

P- 39- 

1 This charter is printed by Madox among the proceedings (ut supra)^ 
and also in "Calender of Charter Rolls" (1908), iii. 46. 

2 See "Red Book," pp. 197, 198, 235, 247, 311, etc. 



IN THE GREAT CHARTER 71 

as knights' fees, but owing the service of more than 
one knight, were called upon to pay relief as " baronies" 
or not. In the case of those who held by the service 
of a single knight there would seem to have been no 
question. 

Some support for the view that a line was drawn 
(as in the case of the De La Mare holding cited above) 
between those who held by the service of more than 
one knight and those who only held a single fee or 
less, is afforded by the returns of I236, 1 in which the 
sheriffs are directed to make separate returns of these 
two classes. 

Perhaps the most remarkable return for its bearing 
on chapter 2 in the Great Charter, is that made by 
the Sheriff of Shropshire in I2I2. 2 In this return the 
first entry relates to William Fitz Alan, who is de- 
scribed as holding " in capite de domino Rege per 
baroniam". The second states that Roger Mortimer 
" baro tenet in capite de domino Rege ". The third and 
fourth show us Walter de Lacy and Robert Mortimer 
holding " similiter ". In the next five entries each 
holder " baro similiter tenet ". In the tenth William 
" Botrealus baro tenuit in capite de domino rege per 
servicium dimidii militis," which was also the service 
of Peter Fitz Herbert, the last but one in the first 
portion of the list. Then come six entries, in the first 
four of which we have the formula " miles tenet in 
capite de domino rege," while in the fifth and sixth 
the word "miles" is omitted, though in the sixth the 
service is that of one knight. 

This list suggests several considerations. In the 
first place, it obviously identifies "baro " with the man 
who holds "per baroniam" ; in the second, it names the 
ten " barones " first and the six " milites " after them ; 
in the next we find two " barones " who hold only half a 
1 See " Testa de Nevill". * Ibid. p. 55. 



72 " BARONS " AND " KNIGHTS " 

fee apiece (in Shropshire at least). 1 Certainly we have 
here a list that seems to have unique importance as 
bearing on the " barons " and " knights " of the Great 
Charter, three years later. It is, however, unfortu- 
nate that Shropshire was a county which had only 
come into the hands of the Crown on the downfall 
of its earls' house early in the reign of Henry I. If 
their fief was deemed to constitute an escheated 
Honour, the status of their tenants after the forfeit- 
ure might be that of those who held " in capite ut 
de Honore". This question arose in 1225, only ten 
years after the Great Charter. Hugh Pantulf appears 
in our list as a " baro " holding "in capite," whose 
service was that of five knights. His son William 
was charged 100 for his relief, as for a "barony," 
but he protested before the King "quod non tenet de 
Rege in capite nisi feoda v militum de terra quae fuit 
Roberti de Belesme ". 2 His contention was allowed 
and his payment reduced from ;ioo to 25. On the 
other hand, Robert Corbet, the subject of the next 
entry, 3 who similarly held, as a "baro," five knight's 
fees, contended, in 1250-1251, that none of his prede- 
cessors had paid relief on them, but was made to pay 
"the baronial" fine of 100 4 on his barony of Caus. 

This singular contrast affords a further illustration 
of the difficulties and confusion by which this subject 
is surrounded. Even so far back as the seventeenth 
century Dugdale acutely observed that Hugh de 
Morewic 5 "had the reputation of a baron, but his 

1 That of Peter Fitz Herbert seems to have been at Woodcote, and 
that of William de Botreaux was at Longdon. See Eyton's "Shrop- 
shire," vii. 153, 165. 

2 Madox' " Exchequer " ( 1 7 1 1 ), p. 2 1 8. 3 " Testa," p. 5 5. 

4 "Memoranda," 35 Hen. Ill, Rot. 14^ (cited in Eyton's "Shrop- 
shire," vii. 24, and Madox' "Baronia," p. 129). His son was made 
to pay ;ioo relief ("Pipe Roll," 12 Edw. I). 

6 See p. 64 above. 



IN THE GREAT CHARTER 73 

barony consisted of no more than that one knight's 
fee, by which service he held the manor of Chiving- 
ton ".* His holding is carefully distinguished as a 
" villa" (not a " baronia ") in "Testa," p. 3926, but 
is styled the w Baronia Hugonis de More wye," on p. 
382^, though the said manor is there entered as held 
"per feodum unius militis". 

In spite, however, of much confusion and contradic- 
tion on the subject, it is clear that the Great Charter, 
by drawing the line it did between the relief due from 
a barony and that which was due from a knight's fee, 
must have led to a definite distinction between the two 
kinds of tenure. And the ever increasing subdivision 
of baronies must have accentuated that distinction. 
We have seen that even under Henry II the two 
moieties of a barony of only three knights' fees were, 
each of them, called upon to pay relief on a higher 
scale than that of the 5 due from a knight's fee, be- 
cause the tenure was baronial. Whether this arrange- 
ment favoured the tenant or the Crown depended 
on the number of knights due (" servitium debitum ") 
from the barony. For instance, in 1236-1 237 the barony 
of D'Aubigny (" De Albini ") of Cainhoe was divided 
between three co-heirs, each of whom was called upon 
to pay 50 marcs, the third of that hundred pounds 
which was due from the "baronia in tegra ". As the 
41 service due " from the barony was twenty-five 
knights, each third was reckoned at 8| fees, on which 
the " baronial " relief was 33 6s. 8d., though, at 5 on 
the knight's fee, the sum payable would have been 
41 135. 4d. (62-J- marcs). 2 Similarly, the Essex bar- 
ony of Montfichet was divided into three portions, 
one of which fell to Richard de Playz, who was 
charged 50 marcs " ut pro tercia parte Baroniae. . . . 

1 " Baronage," i. 678. 

2 See, for this case, Madox' "Exchequer" (1711), i. 217. 



74 " BARONS " AND " KNIGHTS " 

Baronia Integra tune temporis onerata fuit versus 
Regem de relevio suo de' C/". 1 Again, in 21 Edward I, 
Alice de Mucegros had paid 25 marcs for the sixth 
part of a barony, but her heir, in 35 Edward I, was 
only charged 11 25. 2-Jd. for the same (two-thirds of the 
amount), because the relief on a " barony " had been 
reduced, in the interval, from 100 to 100 marcs. 
Eventually the complications caused by these tenures 
became very great. In 18 Richard II (1394-1395) 
Robert de Todenham admitted that he held certain 
property by the service of the third part of the eighteenth, 
part (i.e. the fifty-fourth part) of the barony of Beau- 
champ of Bedford and part of an advowson by the ser- 
vice of the seventh part of the third part of the said 
barony, together with a Suffolk manor which he held 
" in capite ut de honore Boloniae," by the service of two 
knights. For this last tenure he paid 10, but only 
small fractional sums for his two baronial tenures. 
No wonder that Madox summed up his evidence as 
proving that " Land Baronies were divided and sub- 
divided till at length they were brought to nought ". 2 

At last we are in a position to arrive at some con- 
clusions with regard to the difficult problem dealt with 
in this paper. As I observed, just above, it depended 
on the " service " due from a barony whether it was 
in the tenant's interest to claim that his tenure 
was " baronial " or that of " knights' fees ". So, con- 
versely, with the Crown. When the baronial relief 
stood at 100, it was in the interest of the holder, or 
holders, of a barony owing the service of more than 
twenty fees to claim that what they had to pay was the 
baronial relief; when that relief was reduced to 100 
marcs, the above statement would hold true of baronies 
(or portions of baronies) owing the service of thirteen 

1 Pipe Roll, 12 Edw. I, cited in Madox' " Baronia," p. 47. 

2 See his " Baronia Anglica " for all this (pp. 45-9). 



IN THE GREAT CHARTER 75 

and a third knights or more. On the other hand, the 
holders of small " baronies " would naturally try to pay 
relief at the rate of 5 on the knight's fee. In each 
case the interests of the Crown were of course opposed 
to theirs, and thus there would often arise the question 
whether the tenure was " barony " or " knight's fee ". 
As to one class of knights there seems to have been 
no difficulty ; those who held of an escheated Honour 
would always pay relief at the rate of $ on the knight's 
fee, however many fees they might hold. The Great 
Charter provided for their case in its forty-third chapter. 
But as to tenants per " servitium militare " who held 
" in capite ut de corona," questions would arise. Per- 
haps we may divide them into two classes: (i) those 
who could produce a charter of enfeoffment from the 
Crown ; (2) those whose tenure was prescriptive. If 
a man could produce such a charter enfeoffing his pre- 
decessor to hold by the service of one knight, his tenure 
was admitted to be " knight's fee/' and he would 
escape with a relief of 5, as we saw in the case of 
Gower. 1 But if the service due was more than that of 
one knight, it is difficult to state with certainty what 
his relief would be. Turning to prescriptive tenure, 
the rule seems to have been that if the predecessor in 
title, in 1166, sent in his return among the " Cartae 
baronum," this was " prima facie " proof that the 
tenure was baronial. 2 But the presumption so created 

1 P. 70 above. 

2 On the death of Robert de Chandos in 1301, his lands (which were 
in Herefordshire) were found to be " held of the King in chief by barony, 
by service of two knights' fees" (" Cal. of Inq." iv. No. 158), but the 
Inquisition is damaged. Roger, his son and heir, seems to have dis- 
puted the tenure, but without success, for " compertum est in rubeo libro 
quod inter cartas diversorum Baronum annotatas ibidem continetur 
quaedam carta Ricardi de Chaundos, antecessoris praedicti Rogeri de 
diversis feodis suis". The "Carta" will be found on pp. 284-5 f tne 
printed " Red Book," and records prove that the fief paid scutage on 



76 " BARONS " AND " KNIGHTS " 

could be rebutted, as we saw in the De La Mare case, 
by proof that the service was that of one knight only. 1 
Again, as we learn from the Bramber case, the formal 
entry of a fief in a public record as a " Barony," or even 
as an "Honour," was sufficient to establish the fact 
that the tenure was baronial. And there is nothing to 
show that this evidence could be rebutted. 

Finally, the keen and frequent discussion as to the 
amount of relief payable under the second chapter of 
the Charter strongly confirms the main contention in 
this paper. For the line drawn by that chapter could 
not be left undefined ; the question whether a tenure 
was baronial or not had to be determined before it 
could be known what was the relief that it was liable 
to pay. On the other hand, the line drawn in the 
fourteenth chapter between the "greater barons" and 
other tenants was of little, or no, practical conse- 
quence and could, therefore, be left undefined. 2 My 

over thirteen fees in the twelfth century. Roger thereupon admitted 
baronial tenure and paid 100 marcs relief accordingly in 1308-1309 
(Madox' "Baronia Anglica," p. 127). It was shown above that a 
"Carta" of 1166, in the "Red Book," was similarly relied on by the 
Crown in the De La Mare case. 

1 This is also the inference to be drawn from the evidence on the 
practice under Henry II, given on p. 65 above. 

2 The latest learning insists on the vagueness of this line. In the 
4t Origin of the English Constitution" (1912), p. 227, note, Prof. Adams 
writes : " As to when and where the line was drawn between the major 
and minor barons, in either military or court service, seminary work on 
the available material in two different years, in connection with other 
topics, leads me to feel sure that, if the statement in Pollock and Mait- 
land, i. 280, * We shall probably be nearer the truth if, in accordance 
with later writers, we regard the distinction as one that is gradually in- 
troduced by practice, and one that has no precise theory behind it,' is 
to be modified at all, it must be in the direction of a more unqualified 
statement that there was no fixed line." 

Mr. McKechnie (" Magna Carta," 1914, p. 251) similarly holds that : 
"A rough division was drawn somewhere in the midst ; but the boundary 
was vague, and this vagueness was probably encouraged by the Crown, 



IN THE GREAT CHARTER 77 

reason for saying so is that the right of the lesser 
barons to summons to councils was not taken away by 
the Charter but was even asserted. Whether they 
looked on such attendance as a privilege or as is 
more likely at that period a duty laid upon them, 
they would have no occasion in practice to raise the 
question of the line and where it should be drawn. 1 
For they could attend if they wished. The future de- 
velopments of the principle could not then be foreseen. 
To sum up, I claim to have shown that the com- 
mentators' glossing of the text, by which the " knights " 
of the second chapter were made identical with the 
alleged " lesser barons " of the fourteenth, creates 
needless difficulties and rests on no foundation. 2 The 
line drawn in the second chapter was, in practice, 
sharply defined because the "relief" payable to the 
Crown could only be determined by it ; the line drawn 
in the fourteenth was, on the contrary, vague and 
remained in practice undefined. 

whose requirements might vary from time to time. The Crown tenants 
on one side of this fluctuating line were * barones majores ' ; those on the 
other 'barones minores'." 

1 See, further, for my comments on this point, " Peerage and Pedi- 
gree," pp. 350 et seq., where I have reprinted a paper which I issued in 
1884-1885. I have also commented in the " Commune of London," pp. 
252-5, on a charter of 1190, in which Longchamp, as Chancellor, is 
made to speak of " majoribus baronibus civitatis," a phrase which, I 
there pointed out, could have " no specialized meaning " and therefore 
bears on the use of " barones majores " as in the Great Charter. 

2 See pp. 47-53 above. It is essential to keep rigidly to the actual 
text of the Charter. On pp. 248-9 of Magna Carta Mr. McKechnie 
equates " comites et majores barones " by " earls and * other greater 
barons'," where the word "other" is an interpolation, and on p. 251 
quotation marks are given to "Minor Barons," a phrase which is not 
found in the Charter. 



MAGNA CARTA, C. 39. 

NULLUS LIBER HOMO, ETC. 

SIR P. VINOGRADOFF, F.B.A., LL.D., D.C.L. 

BY a curious coincidence the year 1915 has been 
marked, among other striking events, by a revival 
of the controversy between arbitrary power and the 
rule of law which, in the midst of heterogeneous 
particulars, formed the substance of the struggle of 
1215. The discussion in the course of the elaboration 
of the Defence of the Realm Act and its amendment 
has led to extreme pronouncements. On the one hand, 
Lord Parmoor appealed to the principle of safeguard- 
ing the freedom and right of individuals as expressed 
in the Great Charter and guaranteed by trial by jury 
Lord Newton, on the other hand, took this occasion 
to pronounce in favour of a discretionary procedure 
untrammelled by lawyers, and declared that sensible 
persons in this country were not in the least worried 
about Magna Carta at this moment. 1 

We need not follow the details of this curious pass- 
age of arms and of the correspondence called forth by 
it, and may confine ourselves to the remark that if 
Lord Parmoor was not strictly exact in tracing the 
trial by jury to Magna Carta, Lord Newton seems to 
have somewhat rashly discarded the inheritance of 
legality of which English citizens have been so proud 
for ages. 

1 " Parliamentary Debates " (Lords), 4 February and 1 1 March, 
1915 (pp. 443, 444, 687). 

.(78) 



MAGNA CARTA, C. 39 79 

Turning to the historical problem fringed by these 
modern polemics one may say that the predominant 
strain in the analysis of the Great Charter by modern 
scholars may be characterized as a sceptical reaction 
against the great constitutional claims made for Magna 
Carta since the days of Coke. The note is sounded in 
a terse page of the " History of English Law," and 
Messrs. McKechnie, J. H. Round, E. Jenks, L. O. Pike, 
and others have followed on the same lines with great 
effect. They have taken pains to prove that the 
barons who forced the Charter on John Lackland were 
guided by class interests and aimed at reaction and 
anarchy rather than at legality and progress. The 
feudal framework of their scheme is sufficiently clear 
and has been described very fully by G. B. Adams. 
There can be no doubt also tha t t Coke, Blackstone, and 
Thomson were guilty of many anachronisms in their 
.attempts to trace legal conceptions of a later age into 
these feudal beginnings, and that even Stubbs rather 
exaggerated the sentimental. and institutional impor- 
tance of the principles embodied in Magna Carta. And 
jyet there is room for doubt whether the general effect 
of the modern criticism to which the text of the Great 
Charter was subjected has been altogether conducive 
to the proper treatment of the subject. Granted that 
the Charter has been prompted by the selfish con- 
siderations of the barons, and bears in every line the 
impress of their special aims, it remains to be explained 
why it obtained such a hold on national life, why it 
was re-enacted and remanipulated in the course of 
several generations, why it became the watchword of 
English legalism, why it was accepted and developed 
by those very royal judges against whose encroach- 
ments its provisions were to a large extent directed. 
We cannot wonder Magna Carta was partially eclipsed 
by the arbitrary rule of the Tudors, but right through 



8o MAGNA CART A, C. 39 

the Middle Ages and in the seventeenth century again it 
was considered as the principal enactment of English 
law, and this fundamental fact deserves as much con- 
sideration from historians as the feudal environment 
of the Runnymede agreement. Clause 39 which I have 
selected for particular examination stands, as it were, 
in the centre of the Magna Carta controversy, and is 
well adapted for an illustration of its characteristic 
features. 

So much learning and ingenuity has been expended 
on the interpretation of this text that I can dismiss in 
a few words a number of more or less important points 
which seem to me to have been definitely settled by 
scholars. It would be superfluous to refute Coke's 
view as to the meaning of "nee ibimus nee mittemus 
super eum ". Nor is it necessary to dwell at length 
on the meaning of outlawry, disseisin, or destruction. 
It is quite clear that the famous "Vel" between " Judi- 
cium Parium " and " Legem Terrae " was employed in 
a conjunctive and not in a disjunctive sense. But 
several points remain worth discussion even when we 
have taken careful stock of the results achieved by 
the interpreters. 

The " nullus liber homo " itself deserves a few words. 
The meaning attached to the term by the baronial 
party at Runnymede restricted the scope of the term 
to that of "libere tenens," and it was further em- 
phasized and developed in the Confirmation of 1217 
and in later issues. Such an interpretation, far from 
being self-evident in the beginning of the thirteenth 
century, cuts right through the difficulties arising out 
of two firmly established views; namely, against the 
frequent combinations of free birth with unfree tenure,, 
of which the simplest case is presented by the freemen 
holding in villainage, 1 and against the doctrine that 

1 Vinogradoff, "Villainage in England," pp. 77, 78. 



MAGNA CARTA, C. 39 81 

all men worthy of were and wite, 1 if not providing 
the security of free tenement, were to join the frank- 
pledge 2 ("plegium liberale ") and had to attend the 
public court twice a year at the sheriff's view. This 
arrangement was merely the expression of the fact 
that in criminal and police matters the villain was on 
the level of the free. As the narrow conception of 
freedom aimed at in the barons' charter did not 
square with important doctrines well established in 
early Common Law, the interpretation given to 
11 Nullus liber homo " by the judges was bound to 
take a different course from that intended by the origi- 
nators of the document. It has been argued that the 
barons did not intend to bestow any of the guarantees 
of clause 39 on people who did not belong to their order, 
that is who were not tenants-in-chief. If such was 
their intention, it was not adequately expressed, be- 
cause the class of " liberi homines," even in the strictest 
legal sense, embraced all the free tenants, the vavas- 
sors, socmen, and franklins as well as the barons. 
The fact that clause 34 applied only to barons holding 
courts of their own did not militate in the slightest 
degree against such an interpretation. Clause 34 merely 

1 Leges Henrici Primi, VIII. 2 ; Liebermann, "Gesetze der Angel- 
sachsen," i. 554: "Communis quippe commodi prouida dispensacione 
statutum est, ut a duodecimo etatis sue anno et in hundreto sit et de- 
cima uel plegio liberali quisquis were uel wite uel iure liberi dignus 
curat estimari. ..." 

2 See Stubbs, "Constitutional History of England," i. 86-9 ; Morris, 
"The Frankpledge System," " Harv. Hist. Stud." xiv. 84. Bearing in 
mind exemptions made on account of rank, order, property, disability, 
or connection with a responsible householder, one may say that persons 
of all other classes were in frankpledge. These constituted the great 
body of Englishmen below the rank of nobility or of knighthood who 
were neither clerks nor freeholders ; cf. ibid. 85. See also Liebermann, 
"Ges. der Angels." ii. 745 and 746, s.v. " Zehnerschaft," No. 10, 11, 
16. 



82 MAGNA CARTA, C 39 

said that when free men had courts l they were not to 
be deprived of their privileges ; free men who had no 
courts were not concerned in clause 34 at all. But as 
soon as the line was drawn so low as to include all 
those who could prove their freedom, say by the action 
" de libertate probanda," it became impossible to insist 
even on the restricted meaning of free tenants. This 
being so, possible cases of infringement of personal 
liberty, of illegal imprisonment, come very much to the 
fore, and the differentiation between the protection of 
the person (" corpus " \ and of property and privileges 
(" tenementum, consuetudines ") is carried out in the 
later issues of the Charter. Again, when this personal 
acceptation of the term " liber homo " has obtained a 
firm footing, the transition from the feudal notion of 
liberty to the civic one becomes a matter of substitu- 
tion. The fall of the stone into the lake calls forth 
automatically wider and wider circles on the surface. 
That this is no mere speculation of ours may be proved 
by textual evidence. 

In a statute of 1350 (28 Edw. Ill, c. 3) issued after 
the Black Death it was expressly provided that "Nul 
homme de quel estate ou condicion il soit " should be 
imprisoned or disseised in infringement of the Great 
Charter, and this elaborate formula was evidently 
meant to remove all doubts as to the general applica- 
tion of the rule. In an earlier instance, namely, in a 
statute of 1331 (5 Edw. Ill, c. 9), the term used is 
simply " homme," but it stands in the place of " liber 
homo," and the omission of the qualifying epithet is 
not likely to have been accidental : the wording of 
such clauses was the result of very careful considera- 
tion, and the change in terminology has to be taken 

1 Otherwise G. B. Adams, "Origin of the English Constitution," 
233, 239-40. 

* Sic already, "Articles of the Barons," c. 29. 



MAGNA CARTA, C. 39 83 

into account at least as much in this case as the 
insertion of the words about free tenements and fran- 
chises in the earlier confirmations of the Charter. 

It may be noticed in this connection that the defence 
of a person refusing to release a prisoner on bail in 
an action " de homine replegiando " was not that the 
prisoner was a villain, but that the prisoner was the 
villain of the lord who had imprisoned him. 1 

I should like now to examine a second point the 
expression " Per Legem Terrae " which forms the 
conclusion of our clause. I entirely agree with Prof. 
C. B. Adams that the only sense in which these words 
can be construed is that of an assertion of legality. 
" Lex terrae " means the law of the land. It is 
amplified in some of the confirmations by the ex- 
pression " legale judicium," and both in conjunction 
would point to legality in procedure as well as in 
substance. Of course " Lex " is used sometimes in 
the technical meaning of compurgation, but such a 
technical acceptance would square badly with the 
accompanying expression " per judicium parium ". 
What is more important, the general meaning of 
" Law of the Land " is conclusively established by 
two texts directly connected with the history of the 
Runnymede transaction the Patent of 10 May, I2I5, 2 

1 " Regi strum omnium brevium," ed. 1531, fol. 78^; " Nota que 
anno VIII. regis Henrici quart! III. homines suerent bryefe de 
homine replegiando, ou le viscount retourne que les defendaunt eux 
claime come sez villeins regardantz a son maner &c. issint quil 
ne puit repleuin fair, & le retourne aiuge bon & le viscount nient 
amercie, Tamen contrarium adiudicatur anno XXXII. -E. tertii. . . ." 

2 Rymer, " Foedera," i. 128: " Sciatis nos concessisse baronibus 
nostris qui contra nos sunt, quod nee eos nee homines suos capiemus 
nee dissaisiemus, nee super eos per vim vel per arma ibimus, nisi 
per legem regni nostri, vel per judicium parium suorum in curia 
nostra, donee consideratio facta fuerit per quatuor quos eligemus 
ex parte nostra, & per quatuor quos eligent ex parte sua & dominum 



84 MAGNA CARTA, C. 39 

by which King John wished to conciliate the moderate 
among his enemies, and the papal letter 1 in which 
Innocent III exhorted the barons to cease their op- 
position to the King. No reasonable canon of inter- 
pretation could warrant a separate treatment of "legerri 
regni nostri et judicium parium " of John's Patent or 
the " per pares vestros secundum consuetudines et 
leges regni" of Innocent's Bull from the "per judicium 
parium suorum vel per legem terrae" of Magna Carta. 2 
The terms of the three documents are identical in sub- 
stance and significant in their technical differentiation 
under two heads. At the same time the slight varia- 
tions of phraseology enable us to supplement to some 
extent the barrenness of the central statement in 
Magna Carta, clause 39. " Regnum nostrum " ap- 
pears in the letter of 10 May as a welcome gloss to 
"terrae," but the reference to " leges et consuetudines 
regni " is even more explicit : it shows conclu- 
sively that a contemporary potentate, thoroughly 
conversant with the subject in dispute and fully able 
to express his thoughts in a definite manner, under- 
stood the " lex terrae " in the broad and ordinary 
sense of the " laws and customs of the realm ". It 
would be inadvisable for us to dissent from this 

Papam, qui superior erit super eos ; & de hoc securitatem eis faciemus 
quam poterimus & quam debebimus per barones nostros. Et interim 
volumus quod episcopi London' Wygorn' Cestrens' Roffens' & W. 
comes Warren' eos secures faciant de predictis." Quoted by Adams, 
" Origin," p. 266. 

1 Rymer, " Foedera," i. 136 : " Litterae Innocentii III. Papae baro- 
nibus Angliae. . . . Praesertim cum in causa ipsa vos judices et 
executores feceritis ; eodem Rege parato, in curia sua, vobis, per 
pares vestros, secundum consuetudines et leges regni, justitiae pleni- 
tudinem exhibere : vel coram nobis ad quos huius causae judicium, 
ratione dominii, pertinebat ; aut etiam coram arbitris eligendis hinc 
inde, una nobiscum in ipso negotio processuris." 

2 Cf. Adams, "Origin of the English Constitution," pp. 266, 267. 



MAGNA CARTA, C. 39 85 

authoritative interpretation. The struggle was waged 
to secure trial in properly constituted courts of justice 
and in accordance with established law. The latter 
requirement would apply equally to substantive rules 
as far as they existed, and to procedure ; it was in fact 
a declaration in favour of legality all round. Here 
again, as in the case of the free man, the formulation 
was elastic enough to stand carrying over from the 
class justice of feudal lords to the common law of the 
growing Commonwealth. 1 The mention of a properly 

J Cf. e.g. Y.B. 30 and 31 Edw. I (R.S.), 531-2: "Hugo. 
Domine, per illos sum accusatus ; ideo in eis non consentiam. Item, 
domine, ego sum miles, et non debeo judicari nisi per meos pares. 
< Justiciarius.' Quia vos estis miles, volumus quod vos sitis judicati 
per vestros pares. Et nominabantur milites. Et querebatur si volu- 
erit aliquas calumpnias contra eos proponere. 'Justiciarius.' Si 
vos velitis legem communem refutare, vos portabitis poenam inde 
ordinatam, scilicet * uno die manducabitis et alio die bibebitis ; et 
die quo bibitis (sic) non manducabitis, et e contra ; et manducabitis 
de pane ordeaceo et non salo, et aqua, etc.,' multa exponens sibi unde 
non esset bonum morari per ibi sed melius valeret consentire in eis. 
Hugo. In pares meos consentiam, sed non in duodecim per quos sum 
accusatus, unde adversus eos audiatis meas calumpnias. 'Justiciarius.' 
Libenter. . . ." 

Cf. also 37 Edw. Ill, cap. 18 : " Item coment qen la grande Chartre 
soit contenuz, qe null homme soit pris, ou emprosonez, ne oustez de 
son franc tenement, sanz processe de ley ; nientmeyns plus ours gentz 
font faux suggestions au Roi mesmes, sibien par malice come en autre 
manere, dont le Roi est sovent trop grevez, et plus ours du Roialme 
mys en grant daunger et pert, centre la forme de mesme la chartre ; 
par qoi est ordeigne qe touz ceux qe font dels suggestions, soient 
mandez ove les ditz suggestions, devant le Chaunceller Tresorer et son 
grant conseil ; et qe illeoqes ils troevent seurte a pursuire lour sugges- 
tions, et dencourer mesme la peyne qe lautre avereit sil fut atteint, 
ncas qe sa suggestion soit trove malveys ; et qe adonqes proces de 
ley soit fait devers eux, sanz estre pris ou emprisonez contre la fourme 
de la dite chartre et autres estatuz." " Statutes of the Realm," i. 382. 
42 Edw. Ill, cap. 3 : " Item a la requeste de la commune par leur 
peticion mis avant en ce parlement, pur ouster meschiefs et damages, 
faitz as pluseurs de sa dite commune par faux accusours, qe sovent 



86 MAGNA CARTA, C 39 

constituted tribunal, however, discloses in a curious 
way a certain opposition between the views of the 
barons and those of the Royalists, as expressed by 
King and Pope. While the' baronial documents merely 
speak of judgment by peers, the royal and the papal 
pronouncements state that such a judgment should be 
given in the King's Court (in " curia mea "). The 
omission of these words in the text of the Charter is 
hardly accidental. One of the objects of this curtail- 
ment may have been the wish to extend the applica- 
tion of the clause relating to peers to the courts of 
the barons themselves on the principle indicated by 
clause 60. But there is yet another connection in 
which the barons had an interest in avoiding a direct 
mention of the Curia Regis. They wanted to make 
clear that they would not recognize as legal judg- 
ments not delivered by the peers of the accused. In 
this they followed the feudal doctrine (cf. Conrad's 
II edict, 1 and King David's formula 2 ) which had been 

ont fait leur accusementz plus pur vengeance et singulere profit qe pur 
profit du Roi ou de son people, queux accusez ont este aucuns pris et 
autres faitz venir devant le conseil le Roi par brief, et autrement, sui 
greve peine, et encontre le leye ; est assentu et accorde pur le bone 
governement de la commune qe nul homme soit mis arespondre sanz 
presentement devant Justices, ou chose de record, ou par due processe 
et brief original, solonc launcien leye de la terre ; et si rien desore 
enavant soit fait al encontre soit voide en leye et tenuz pur errour." 
" Statutes of the Realm," i. 388. 

1 " Monumenta Germaniae Historica," Legum Sect. iv. i. 90 : 
" Precipimus et firmiter statuimus : ut nullus miles episcoporum, 
abbatum, abbatissarum aut marchionum vel comitum vel omnium, 
qui benefitium de nostris publicis bonis aut de ecclesiarum prediis 
tenet nunc aut tenuerit vel hactenus iniuste perdidit, tarn de nostris 
maioribus valvasoribus quam et eorum militibus, sine certa et con- 
victa culpa suum beneficium perdat, nisi secundum consuetudinem 
antecessorum nostrorum et indicium parium suorum" 

2 "Acts of the Parliaments of Scotland, I : Assise Regis David," 
cap. v. p. 6 : " Quod per parem iadicabitur. Statuit similiter dominus 



MAGNA CARTA, C. 39 8; 

emphatically asserted, e.g. in 1208 by William of 
Braose. 1 Now as against such an unadulterated 
feudal doctrine stood a view according to which the 
administration of justice was the outcome of royal 
power and not of feudal contract. From this point 
of view Pierre des Roches in 1233 contested the very 
existence of peers in England. 2 But there was also 
an intermediate position favoured by the Judges of 
the King's Court : according to this compromise the 
Curia was not only a body with attributions delegated 
to it by the King, but also a meeting of the King's vas- 
sals, and it exercised its functions in virtue of the col- 
lective power of the assessors. In this sense the 
justices derived their office not only from the sove- 
reign, but also from the circle of peers. Indeed both 
in France and in England the Court of Peers was re- 
garded as one section of the High Court of Parliament 
which in itself was the enlarged Curia Regis. One 

rex quod nullus debet recipere iudicium neque iudicari a minor! persona 
quam a suo pari scilicet comes per comitem, baro per baronem, vavassor 
per vavassorem, burgensis per burgensem, sed minor persona potest 
iudicari a maiori." Ibidem, " Leges Quatuor Burgorum," cap. vii. 
p. 22 : " De querelis extra burgum. Si burgensis appelletur de aliqua 
querela non placitabit extra burgum nisi ex defectu curie, nee debet 
respondere sine die et termino nisi prius incident in stultam respon- 
sionem exceptis illis que ad coronam domini regis pertinent. Et tarn 
de illis que ad coronam regis pertinent quam de aliis iudicari debet per 
suos pares et hoc secundum leges et assisas burgorum" Cf. Harcourt, 
" His Grace the Steward," p. 207 ; Pollock and Maitland, " History of 
English Law," i. 2 173, note 3. 

1 See Round, "Peerage and Pedigree," i. 338, 344,345; Adams, 
" Origin of the English Constitution," p. 267. 

2 Matthew of Paris, " Chron. Maj." iii. 252. "... Ad haec re- 
spondens P(etrus) Wintoniensis episcopus dixit, quod non sunt pares 
in Anglia, sicut in regno Francorum ; unde licet regi Anglo rum per 
justitiarios, quos constituent, quos libet de regno reos proscribere et 
mediante judicio condempnare. . . ." See Pollock and Maitland, 
" History of English Law," i. 2 410, note 2 ; McKechnie, " Magna 
Carta," " p. 390. 



88 MAGNA CARTA, C 39 

more step was required to reach the conclusion that 
the professional judges of the Court might be taken 
to serve as a substitute for the cumbersome process 
of judgment by the full Court. This step was not 
only actually made both in England and in France, 
but it was justified in both cases on similar grounds. 
I have in view the introductory sentence of Bracton's 
treatise 1 on the connection of the single judge with 
the full Court of Magnates and the chapter of Beau- 
manoir's " Coutumes de Beauvaisis " 2 on the juris- 
diction of the "bailli". In both cases stress is laid 
on the subordinate character of a decision given by a 
single judge. His action is important for practical 

1 Bracton, " De Legibus," i. cap. ii. par. 7. . . : "Si autem aliqua 
nova et inconsueta emerserint, et quae prius usitata non fuerint in 
regno, si tamen similia evenerint, per simile judicentur, cum bona sit 
occasio a similibus procedere ad similia. Si autem talia nunquam 
prius evenerint, et obscurum et difficile sit eorum judicium, tune 
ponantur judicia in respectum usque ad magnam curiam, ut ibi per 
consilium curiae terminentur." Cf. as to the judgment of the Court of 
Peers in case of high treason, .119: " Quis ergo judicabit ? Videtur, 
Sine prejuditio melioris sententiae, quod curia et pares judicabunt . . . 
Cum ipse rex pars actrix esse debeat in iuditio. ... Si autem levis fuerit 
transgressio quae poenam inflegat pecuniariam tantum, bene possunt 
iustitiarii sine paribus iudicare. ..." It is to be noticed (i) that the 
functions of the justices and of the peers are characterized by the 
same expression "judicare" and differ only in degree and applica- 
tion ; (2) that the verdict of peers applies not only to the higher 
grades of society, but to all freemen worthy of trial by the country. 

2 Beaumanoir, " Coutume de Beauvaisis," cap. 31 : "Pour ce que 
mout seroit longue chose et chargeant as hommes qui font les jugemens 
de metre en jugement tous les cas qui vienent devant le baillif, li 
baillis doit metre grant peine de delivrer ce qui est pledie devant lui, 
quant il set que Ten doit fere du cas selonc la coustume et quant il voit 
que la chose est clere et aperte. Mes ce qui est en doute et les grosses 
quereles doivent bien estre mises en jugement ; ne il ne convient pas 
que 1'en mete en jugement le cas qui a autre fois este jugies, tout soit 
ce que li jugemens soit fes pour autres persones, car 1'en ne doit pas 
fere divers jugemens d'un meisme cas." 



MAGNA CARTA, C. 39 89 

reasons because it would be useless to overburden 
the full Court with trials which develop on ordinary 
lines and can be easily settled by reference to well- 
known rules. In all doubtful cases, however, the 
single judge ought to revert to the fountainhead of 
his authority, that is to the Curia. The expressions 
used by Bracton are exceedingly characteristic : it 
is as a member of the aristocracy and not as a learned 
delegate of royal justice that the judge is made to 
appear. By the Magna Curia may be meant either 
a sitting of the full Curia Regis or the High Court 
of Parliament, a body of rather uncertain composition 
in the thirteenth century. 1 A characteristic comple- 
ment to the jurisdiction of Parliament in the centre 
appears in the shape of the commissions in circuit com- 
posed of local magnates by the side of ordinary judges. 2 
For our purpose it is important to note that in the 
main the requirement as to justice administered by 
one's peers gradually resolved itself in the hands of 
the justices who founded the Common Law into a po- 
tential appeal to a High Royal Court. 

It cannot be said that this process of transformation 
took place without opposition and misunderstandings, 
or that it followed a perfectly straight course. It is 
well known how the higher baronage obtained a strict 
recognition of its position as a group of peers of the 
Realm. A corollary to that purely feudal view appears 
in the claim of privileged exemption from trying the 
causes of lower people. 3 

1 See Mcllwain, "High Court of Parliament," pp. 24, 25, 28, 29, 
31, 32. Cf. Baldwin, "The King's Council," p. 68. 

2 McKechnie, "Magna Carta," 2 pp. 270, 271. Cf. Pollock and 
Maitland, " History of English Law," i. 2 202. 

3 " Rotuli Parliamentorum," ii. 54, No. 6 (4 Edw. Ill): ". . . Et qe 
les avantditz Jugementz ore renduz ne soient tret en ensaumple n'en 
consequencie en temps a venir, par qoi les ditz Peres puissent estre 
chargez desore a jugger autres qe lur Peres, centre la Lei de la terre 



90 MAGNA CARTA, C 39 

It is also interesting to note that sometimes at- 
tempts were made to establish further gradations with- 
in the peerage, e.g. in the case of Gilbert of Clare, Earl 
of Gloucester, who wanted to be tried by lord marchers 
like himself. 1 

The process affecting the free population below the 
exalted ranks of the peerage is more interesting. Here 
also we find an occasional attempt to establish group 
divisions. A Yorkshire knight seeks and obtains from 
an itinerant justice to be tried by fellow-knights instead 
of a jury of freemen selected without distinction of 
rank. 2 The justiciar in this case complies with the 
request of the accused, and gets rid in this way of one 
of the latter's many objections. But, as we know, such 
an exclusive point of view did not prevail as to the 
composition of juries, both grand and petty. The rule 
established by practice required merely that members 
of the jury should be empanelled from the country 
("patria") or the neighbourhood (" visnetum "), that 
they should be free and lawful men of some social stand- 
ing, and that their several appointments could not be 
challenged on personal grounds. Anyway, even when 
knights are selected for the recognition, it is evident 
that they do not belong to a circle of peers of the 
accused in any other sense but that of being his equals 
in rank. They do not constitute in themselves an 
ordinary Court of Peers to which the accused man 
would eventually be a suitor. They are members of 
the " patria," in the case just quoted from the county of 

si autiel cas aveigne, que Dieu defend." Cf. Harcourt, " His Grace 
the Steward," pp. 336-7. See also Y.B. 48 Edw. Ill, 30^. 

1 See " Placitorum Abbreviatio," 201 ; McKechnie, " Magna Carta," * 
P- 3795 Pollock and Maitland, "History of English Law," i. 2 410., 
note i. 

2 Y.B. 30 and 31 Edw. I (R.S.), 531. The case is not traceable in, 
the original rolls, but there are indications that it was tried before 
W. St. Quintin or R. Becard at York. 



MAGNA CARTA, C. 39 91 

Yorkshire, and act in a representative capacity. One 
more characteristic feature has to be noted the knights 
in question are selected to satisfy the requirement as to 
" judicum parium," and at the same time they are a jury, 
a petty jury according to the technical terminology of 
later days. Submission to the verdict on the part of 
the accused is enforced by means of the threat of apply- 
ing the regime of hunger and thirst which formed such 
an important element in the "peine forte et dure". 
Altogether the report of the trial looks like a standard 
case selected for the purpose of illustrating all sorts of 
dodges, countermoves, and exceptions which might be 
resorted to by an accused person. 

There can be no doubt that in this way a criminal 
petty jury was taking the place of a batch of peers, and 
though we have no similar means of exact identifica- 
tion in other instances, the mere reading of Crown 
trials in such collections as that of the Select Pleas of 
the Crown, the Crown Pleas of the County of Glouces- 
ter, and the Notebook of Bracton, affords ample cor- 
roborative evidence of the treatment of criminal cases 
on those lines. All cases of felony in these volumes 
are tried and decided in Royal Courts either by appeals 
or by recognitions of juries. The latter mode becomes 
more and more common, and, except in the case of a 
great man, depends not on a judgment by the feudal 
peers of the accused, but on a recognition by men of 
the same group, free and lawful men of the " country ". 
The question arises, is the treatment of the recognition 
as a judgment the result of mere confusion and loose- 
ness of terminology, 1 or has it been brought about by 
the deliberate overriding of the Magna Carta provision 
by royal justices ? Neither the one nor the other so- 
lution is likely to commend itself to modern students. 

l See Pike, "Constitutional History of the House of Lords," pp. 
169-70. 



92 MAGNA CARTA, C. 39 

In order to understand the process si substitution by 
which the jury was put in the place of the circle of 
feudal peers, we have to attend, as it seems to me, not 
only to the existence and rapid increase of small free- 
men who had no standing as vassals, but also to the 
popular conception of a public court in thirteenth 
century England. The opposition between judgment 
and verdict developed only gradually in consequence 
of the growth of the jury system, and although, as has 
been convincingly shown by H. Brunner, the trial by 
jury was in truth the outcome of inquests held by pro- 
fessional judges under the authority of the King, yet in 
the popular mind there lingered the notion that jurors 
were delegates of a body of doomsmen. This is as- 
sumed in the Yorkshire case under discussion, but it is 
also indicated by the frequent substitution of an award 
by jurymen for the doom or judgment of a popular 
court. One of the earliest extant records of a post 
conquestual plea the account of a suit in which 
Bishop Odo of Bayeux ultimately got the best of it 
against his opponent l contains the notice that sworn 
representatives of a county were substituted for the 
full court of the county. From a case inserted in 
" Bracton's Note-book " 2 we can gather that the right 
to make dooms, that is to pronounce judgments, was 

1 Bigelow, "Placita Anglo- Normannica," 7 : "et etiam a toto comi- 
tatu recordatum atque judicatum". Ibid. 24 : " eligantur plures de illis 
Anglis qui sciant quomodo terras jacebant prsefatse ecclesias die qua 
rex Edwardus oblit, et quod inde dixerint ibi jurando testentur ". 

2 "Bracton's Note-book," iii. case 1730 (Lincolnshire) : ". . . uice- 
comes . . . dixit omnibus senescallis, militibus et aliis de comitatu ut 
summo mane conuenirent et querelas audirent et inde iudicia facerent. 
Mane autem cum uenirent, uicecomes assedit et interrogauit querelas 
et querentes et iudicia, etc., et mandauit militibus et senescallis qui 
extra domum fuerunt ut intrarent et querelas audirent et iudicia inde 
facerent. Et cum hoc audirent, ipsi qui in domo erant exierunt et qui 
extra erant abierunt dicentes quod non debuerunt comitatum tenere 
nisi per unum diem, unde quia uicecomes non potuit solus querelas 
audire nee iudicia facere dixit querentibus et reis . . ." 



MAGNA CARTA, C 39 93 

considered to be inherent in the status of a member of 
a county court, though its proper exercise depended 
on the holding of a regular session of the court. It 
could certainly not be denied that a suitor of the 
county acting as an assessor of its courts was able to 
exercise judicial functions by the side of the sheriff or 
of the royal justice who presided in the court. In the 
same way a juror, representing the "patria," was 
deemed to contribute in a certain sense to a judgment, 
although in another sense the judgment as a final 
decision of the case appertained to the royal justice. 

This manner of treating the question led to a rather 
ambiguous phraseology, but it helps to explain how 
the rule as to " judicium parium " was applied by the 
royal courts in the case of freemen not belonging to 
the highest social rank of the peerage. 

It remains for me to consider the constitutional 
widening of the prohibition of arbitrary imprisonment 
and "destruction". It has been currently held to be 
the germ of the Habeas Corpus doctrine, and there is 
a good deal of truth in this view although it certainly 
does not comprise the whole truth. The narrow class 
basis on which the rule was originally drawn up need 
not be insisted on it is the initial assumption from 
which further analysis has to start. What I should 
like to emphasize is the fact that right through the 
Middle Ages the rule was recognized by the judges 
and became one of the fundamental principles, not of 
the law of peerage but of the Common Law. It was 
reasserted again and again by various Parliaments 1 

1 See 2 Inst., Proem ; for a list of statutes of confirmation, see ibid. 
p. i. Traces of special proceedings arising out of infringements of the 
Great Charter are preserved in references to Pleas concerning trans- 
gressions of Magna Carta, and the Great Charter is not unfrequently 
quoted in Patent Rolls in order to explain the appointment of justices 
in special cases. See, e.g., C. Pat. R. a. 1247-1258, p. 229 ; a. 
1261-1272, p. 630; a. 1272-1281, p. 327. 



94 MAGNA CARTA, C. 39 

with slight variations in form which showed that it 
was not treated as an empty formula kept up by 
meaningless tradition. In John de la Lee's case 1 it 
formed the basis of the defendant's claim. In the quash- 
ing of Thomas of Lancaster's sentence, 2 and in the pro- 
ceedings as to Maltravers' pardon, 3 royal officers, and 
even the peers of Parliament were charged with 
flagrant breaches of the rule of law, 4 safeguarding the 
right of free Englishmen to a fair trial. It must be 
conceded, at the same time, that there was a powerful 
doctrine which ran counter to a consistent application 
of clause 39 of Magna Carta, namely, the exceptional 
power assigned to the King in virtue of his prerogative 
as sovereign ruler of the Commonwealth. . . . Thomas 
of Lancaster was condemned to death without trial 
because Edward II had personally recorded the no- 
torious fact of his treason. The personal command of 
the King is often recognized by judges to outweigh 
purely legal considerations. In the procedure of re- 
plevin as applied to accused persons, it was taken for 
granted that an arbitrary arrest might be justified by 
the personal order of the King. This point may be 
illustrated, e.g. by the following extract from a writ " de 
homine replegiando " of Edward I's time : The Sheriff 
of Cambridgeshire is ordered to replevin a certain 

1 "Rotuli Parliamentorum," ii. 297-8 (42 Edw. Ill, Nos. 20-8), esp. 
at p. 297*5 (No. 22). 

*Ibid. 3-5 (i Edw. III). 

9 Ibid. 1730 (4 Edw. Ill, No. 3); cf. Vinogradoff, "Constitutional 
History and the Year Books" (Creighton Lecture), L.Q.R. 1913, 
pp. 277, 278. 

4 Cal. Pat. 1292-1301, pp. 515-17 ; Pat. 28, Edw. I, m. 14. List of 
justices appointed to hear and determine complaints of transgressions 
against Magna Carta and the Forest Charter of Henry III as received 
and confirmed by the King, and especially of transgressions where 
heretofore no remedy existed at common law, as well of the King's 
Ministers extra placeas suas as of all others without allowing the delays 
which are allowed at the common Law ; and to punish offenders by 
imprisonment, ransom, or amercement. 



MAGNA CARTA, C 39 95 

Richard and others, who had been arrested by the 
bailiffs of the Bishop of Ely, "nisi capti essent per 
speciale praeceptum nostrum vel capitalis justiciarii 
nostri " (Public Record Office, Chancery Files, Writs 
and Returns, 18 June, 2 Edw. I). 

The passage applies, of course, to preliminary arrest 
and not to punishment, but it was well understood al- 
ready in mediaeval times that such preliminary arrests 
might create the greatest hardship, and ought to be 
guarded against. 1 

How is one to reconcile these conflicting tendencies ? 
They cannot be reconciled by logical construction : they 
represent, as it were, the two poles of English political 
-development in the Middle Ages. The historical 
struggle between John and the barons, Henry III and 
Monfort, Edward II and Lancaster, Edward III and 
the Good Parliament, had its counterpart in conflicting 
legal theories as to the extent of the royal prerogative 
and the application of legal rules. But as one might 
say of the English Justinian, Edward I, that he was 
'eminent as a powerful ruler and at the same time as a 
most efficient promoter of legal order, 2 so it may be said 
of the judges who shaped the Common Law, that they 
were fully alive to the necessity of a rule of law, and 
regarded the modifying interference of the prerogative 
as an exceptional agency which ought not to affect the 
.general administration of justice. The principle of 
legality as formulated in Magna Carta is one of the 
elements of England's constitutional growth, and it has 
certainly exerted an influence on the destinies of the 
nation which is not lessened by the fact that the roots 
of the Charter were embedded in the soil of feudalism. 3 

1 See 37 Edw. Ill, cap. 18 ; 38 Edw. Ill, cap. 9 (stat. i) ; 42 Edw. 
Ill, cap. 3 ; Y.B. 6 and 7 Edw. II, vol. ii. (S.S.), p. 36. 

2 See the case of the Countess of Albemarle, as related by Hereford, 
"C.J., Y.B. 3 Edw. II (S.S. iii.) 196. 

3 Cf. Vinogradoff, " Constitutional History and the Year Books " 
(Creighton Lecture), L.Q.R. 1913, pp. 279, 280. 



PER IUDICIUM PARIUM VEL PER LEGEM 
TERRAE. 

PROFESSOR F. M. POWICKE. 

IN his recent treatise upon the origin of the English 
Constitution Prof. G. B. Adams has pushed to its 
logical conclusion what may be called the baronial 
tendency in current interpretations of the thirty-ninth 
clause of the Great Charter. The barons, he suggests, 
were thinking almost entirely, if not entirely, of them- 
selves. They were demanding that they should not 
be imprisoned, disseised, or outlawed except after a 
trial 'in the King's Court "by the judgment of their 
peers and by the whole body of law and custom 
which such judgments are intended to interpret and 
apply ". l By the King's Court the barons meant the 
magnates of the realm, not the judges alone ; by the 
law of the land they meant no particular form of pro- 
cedure, certainly not the processes of indictment and 
presentment. As I understand this view, the barons 
desired to place themselves beyond the scope of the 
judicial system elaborated in the reign of Henry II 
and Richard I. They were thinking of such trials as 
those of William of Saint-Calais and St. Thomas of 
Canterbury. 2 

This view is clear and intelligible. It is a good 
starting-point. Without traversing the whole field of 

1 "Origin of the English Constitution," p. 266. 

2 On the procedure in these trials see Adams in the " Columbia Law 
Review" for April, 1913. 

(96) 



PER IUDICIUM PARIUM, ETC. 97 

speculation fully described in Mr. McKechnie's com- 
mentary, I wish to put over against Prof. Adams' 
view the old fourteenth-century interpretation of the 
clause and see what can be said for it. There appears 
to be no doubt that, in the minds of politicians of 
Edward Ill's reign, the clause comprehended all free- 
men, and the law of the land covered all the due 
processes of law, even indictment and the appeal ; 
whether there was a judgment of peers or not 
depended on the circumstances. We can all agree 
that the barons were thinking mainly of their own 
safety and were not thinking directly of trial by jury, 1 
but if we accept the Edwardian view 7 , we cannot 
hold that the Charter is simply the programme of a 
pack of feudal reactionaries. According to Prof. 
Adams the barons were seeking to undermine so far 
as it concerned them the whole fabric of the new 
judicial system, "including the jury, the itinerant 
justice court, and the permanent central Court of 
Common Pleas ". 2 According to the fourteenth-cen- 
tury politicians, the barons frankly recognized the 
value of the judicial system, new and old, and in this 
clause were maintaining the rights of the subject 
against an arbitrary prerogative. 

The inquiry involves two separate but related 
questions. In the first place, assuming that the 
clause was intended to apply to the barons alone, was 
it only concerned with a trial by peers in the King's 
Court? In 'the next place, ought we to limit the 

1 Of course, if we accept the fourteenth-century view (the references 
are in McKechnie's " Magna Carta," first edition, pp. 441-2), the "lex 
terrae " would cover the jury of presentment or grand jury, and also 
the jury which superseded the ordeal, when the accused put him- 
self "super patriam". The "judicium parium" could not mean a 
jury. 

' J " Origin of the English Constitution," p. 268. 



98 PER IUDICIUM PARIUM 

phrase " liber homo" to the baron? If the barons 
were not thinking of the ordinary freeman, they may 
none the less have been thinking of more than one 
judicial method. If they did include the ordinary 
freeman in their demand, they would naturally allow 
a variety of procedure. 

I. 

"Nullus liber homo capiatur 1 uel imprisonetur aut 
dissaisiatur aut utlagetur aut exuletur aut aliquo modo 
destruetur nee super eum ibimus nee super eum 
mittemus nisi per legale judicium parium suorum 
uel per legem terrae." 

The barons and their followers were in this clause 
included among the "liberi homines ". Indeed, John's 
letters of 10 May, 1215, show that the baronial desire 
for protection was perhaps the original motive of the 
clause. These letters, addressed a month before the 
date of the Charter, read as follows : 

" Sciatis me concessisse baronibus nostris qui contra 
nos sunt quod nee eos nee homines suos capiemus nee 
dissaisiemus nee super eos per uim uel per arma 
ibimus nisi per legem regni nostri uel per judicium 
parium suorum in curia mea donee consideracio facta 
fuerit per iii/ or quos eligemus ex parte nostra et per 
iii/ or quos eligent ex parte sua et dominum Papam 
qui superior erit super eos." ! 

It does not appear, however, that the King is 
promising a trial by peers in his court as a remedy in 
all cases. Even though by the barons' men only their 
more important followers were intended, John is not 
likely to have given an undertaking that all charges 
against them would be brought before the supreme 

1 The corresponding clause in the Articles of the Barons ( 29) reads : 
"ne corpus liberi homini? capiatur nee imprisonetur nee dissaisietur ". 

2 Pat. 1 6 John m 3d. Hardy, " Rotuli litterarum patentium," p. 141. 



VEL PER LEGEM TERRAE 9 9 

authority. 1 Nor do the words "per legem regni uel 
per judicium parium," taken in their natural sense, 
suggest that the law of the realm and a judgment 
of peers are indissolubly connected or, in this case, 
identical. Such a serious conclusion must be based 
upon a much stronger argument than the probable 
meaning of "uel". The word "uel" is used about 
sixty times in Magna Carta, but never, so far as I can 
see, in an explanatory or a cumulative sense. How- 
ever vague or weak its disjunctive quality may be, it 
cannot suddenly be construed as "et etiam " or "id 
est". As the author of the "Dialogus de Scaccario " 
points out, even "et" was frequently used at that 
time in a disjunctive sense. 2 Unless the meaning of 
the terms themselves suggests a much closer connection 
between the ideas of the " lex regni " and the "judicium 
parium," the use of "uel" can only suggest that they 
are not rigid alternatives. One would expect the 
King to mean that, without stating exactly the scope 
of the law of the realm, he would observe it : it might 
include a judgment of peers or it might not; if the 
circumstances were peculiar owing, for example, to 
the importance of the offender or the difficulty of the 
case the judgment would not be arbitrary. The 
defendants' peers could be or would be called upon to 
see that justice was done. 

The practice of the time and the general meaning of 
the words used strengthen the probability of this in- 
terpretation. 

In many cases a judgment of peers in the King's 

1 This is admitted by Prof. Adams, p. 266, although his reasoning 
in the context is not very clear to me. 

2 "Dialogus," ii. i. The editors of the Oxford edition (p. 207) 
have explained that it is the disjunctive use of " et," not, as the ordin- 
ary text at first sight suggests, of " uel," which is the theme of this 
passage. 



ioo PER IUDICIUM PARIUM 

Court was doubtless the normal method of procedure. 
A great baron's default of service, for example, might 
result in disseisin by such a judgment. But a judgment 
of peers was not the only legal way. During the sharp 
quarrel in 1205 between King John and William the 
Marshal, the Marshal offered to defend his fidelity 
against the most valiant man in the kingdom. "By 
God's teeth," swore the King, "that is nothing. I 
want the judgment of my barons." The Marshal was 
ready to stand this test also, but the barons shrank 
from giving judgment; and when John of Bassing- 
bourn, one of the King's bachelors, ventured to speak, 
the Count of Aumale silenced him. " It is not for you 
or me to judge a knight of the Marshal's quality. 
There is no man here bold enough to put his default 
to the proof of the sword (' si hardi qui vers lui mos- 
trast le forfeit')." 1 The duel is distinguished in this 
scene from the " judicium parium " ; the barons regard 
the duel as the more appropriate test, while the King 
prefers the "judicium ". 

Did the " lex regni " mean the old form of procedure, 
such as the feudal trial by combat ? Procedure was 
certainly part of the law of the realm ; and some 
scholars have wished to limit the meaning of the 
phrases "lex regni," "lex terrae," to this form of 
trial, excluding any wider sense, e.g. process, and the 
methods of appeal and indictment which might precede 
the actual proof. 2 I can see no reason for any such 
limitation in the thirty-ninth clause of the Great Charter. 
The "lex terrae," which is substituted for John's "lex 

1<( Histoire de Guillaume le Marechal" (ed. Meyer), ii. 109-12, u. 
13149-13244. Four years earlier the King had acted in an exactly 
contrary way. The Poitevin barons asked for a judgment of peers ; 
John had tried to insist upon a trial by combat against picked cham- 
pions of his own (Howden, iv. 1 76). 

2 McKechnie, " Magna Carta" (first edition), pp. 103, 441. 






VEL PER LEGEM TERRAE 101 

regni," was certainly used of the ancient forms of 
proof, but in Norman l and in Anglo-Norman law, it 
was more frequently used in the sense of the "general 
body of law operating through familiar processes ".'- 
The word "terra" was used sometimes to denote a 
holding as in the phrase "terrae Normannorum," but 
also to denote a district subject to public law, whether 
the local " patria " or the " regnum " as a whole. 3 Its 
substitution for "regnum" in the clause under discus- 
sion shows that "lex terrae" was here intended to 
apply to the customs of England, and probably to 
cover also any varieties of local customs, such as those 
recognized by the justices in Kent and Herefordshire. 4 
And it may be noticed that the phrase "lex terrae" 
was commonly used of actions and procedure gener- 
ally ; for example, of the possessory assizes, a writ of 
right, and the proceedings in outlawry. 5 

The phrase "judgment of peers," on the other hand, 
had a more limited and precise meaning. It implied a 
particular kind of court, a court of doomsmen. The 
judgment must be delivered on behalf of a company of 
men who were of the same race or nationality or status 
as that of the accused or party. It involved the equi- 
table principle which underlay the recognition and the 

1 " Tres ancien coutumier " (ed. Tardif), chaps, xv. 3 ; Ixxxii. 9. 

2 Prof. Adams has advanced the interpretation of the clause by 
bringing together examples of the more general use of " lex terrae " ; 
op. cit. p. 267. 

3 In Germany " terra" (land) was sometimes used of the Empire as a 
whole, but more commonly of a political district. See especially von 
Below, " Der deutsche Staat des Mittelalters," i. 131-4. It is used of 
England and of Normandy as a whole in Bracton's phrase " donee terrae 
fuerint communes". 

4 The customs of Kent are well known. For a Herefordshire custom 
which made the judges pause, see Bracton's " Note Book," iii. 407, 
case 1474, of the year 1220. 

5 See the cases discussed below. 



102 PER IUDICIUM PARIUM 

accusing jury ; indeed, the processes of inquiry and 
judgment met in the jury of arbitrators, of which we 
have an example in John's letters of May, 1215; but 
the judgment of peers was not the same as, and did 
not include, the recognition and the presentment. The 
Jews in England claimed the judgment of their peers, 
but they objected to a mixed jury of recognitors. 1 A 
solemn trial in the Curia Regis in the presence of the 
magnates of the realm, the ordinary session of the 
shire court, perhaps also the trial of possessory actions 
before justices enforced by local knights involved a 
judgment by peers. The proceedings before the 
justices on eyre did not, I think, involve this kind of 
judgment. But the " lex terrae " would be enforced in 
all alike. 

A contemporary change in Norman procedure il- 
lustrates very clearly the distinction between the "lex 
terrae" and the "judicium parium ". After the con- 
quest of Normandy, King Philip Augustus took the 
trial of ducal pleas in the bailliwicks out of the hands 
of justices and gave it to local men. The custumal 
says : " assisie vero tenentur per barones et legales 
homines. Par per parem iudicari debet." 2 The pro- 
cedure of the court and the law enforced by the court 
were not affected by the change ; the " lex terrae " was 
observed both before and after ; but henceforward a 
trial according to law would in Normandy involve a 
"judicium parium '. In England this was not neces- 
sarily the case. 

1 A comparison of John's charter to the Jews (" Rotuli chartarum," 
p. 93) with a case of the year 1224 in Bracton's "Note Book," ii. 706, 
case 918, makes this clear. 

2 " Tres ancien coutumier," chap. xxvi. On the nature of these as- 
sizes, see chaps, xxviii. i ; xliv. 2 ; Iv. i, 2 ; Ivi. i. The change in- 
troduced by Philip Augustus has been worked out by Freville in the 
" Nouvelle revue historique de droit fran^ais et etranger," 1912, pp. 
714 ff. 



VEL PER LEGEM TERRAE 103 

The phrase "lex terrae," then, though not excluding 
a judgment of peers, suggests so many varieties of law 
and procedure that a demand for a judgment of peers 
in every possible case could hardly be expressed in 
words so mild and general as "per judicium parium 
uel per legem terrae '*. I have pointed out that even a 
great baron accused of default did not regard the judg- 
ment of his peers as the most natural or obvious way 
of meeting the charge. Moreover, other clauses of the 
Charter indicate that the barons used more explicit 
language when they wished to emphasize a demand 
for a " judicium parium ". Disputes about land on 
the Welsh border were to be settled "per judicium 
parium secundum legem," in accordance with the law 
of England, Wales, or the March, as the case might 
be. 1 The conclusion is forced upon my mind at least 
that the thirty-ninth clause was intended to lay stress 
not so much on any particular form of trial as on the 
necessity for protection against the arbitrary acts of 
imprisonment, disseisin, and outlawry in which King 
John had indulged. 

If we turn to some leading cases of the next twenty 
years a period during which the Great Charter was 
solemnly renewed, fresh in men's minds, and acknow- 
ledged as authoritative this view is confirmed. There 
is the same insistence upon protection, the same con- 
cern for the observance of law, and also the same 
hesitation or indifference about the actual constitu- 
tion of the court. The King acknowledges that he 
has disregarded the forms of law, it may be in his 

1 Magna Carta, 52 ; cf. 55, 56, and Articles of the Barons, 
25. The phrase "per judicium parium secundum legem" does not 
mean that judgment of peers is according to law, but that the judgment 
by peers must be in accordance with the law. Those writers who 
identify the phrase with the phrase " per judicium parium uel per 
legem terrae," seem to have overlooked this distinction. 



104 PER IUDICIUM PARIUM 

own court or it may be in a shire court. Redress 
is given by the magnates of the realm, if the case is of 
great importance, or by a judge in the royal following. 
Maitland was fond of reminding us that the distinc- 
tions between the royal courts were but vaguely 
defined in the thirteenth century; and with similar 
indefiniteness we find "coram rege " cases decided 
now by the assembled magnates, and now by a single 
justice. 

One such case concerned a great Yorkshire house. 
The desirable manor of Cottingham, which had been 
much improved first by William, then by Nicholas de 
Stuteville, was claimed by Nicholas's co-heiresses on 
their father's death in 1233 ; but it had been for some 
weeks in the possession of his nephew Eustace, a man 
of some importance in the affairs of the shire. This 
was clearly a case for an assize of mort d'ancestor, 
and for a writ of right. For some reason the King 
intervened, dispossessed Eustace, installed the heir- 
esses and their husbands, and finally (" per consilium 
magnatum de curia sua") took the manor into his 
own hands. Eustace had offered large sums for a 
judgment, and in 1234, at Wallingford, on the octave 
of Trinity (25 June), his claim was heard by William 
Ralegh. The King was present, and admitted that 
he had acted on his own initiative in disseising 
Eustace, without due process of law " sine sum- 
monitione et sine judicio ". Eustace was ready again 
with his offer of 1000. The fine was accepted, and 
judgment was given that he should be reinstated 
pending a settlement by assize of mort d'ancestor and 
writ of right, " secundum legem terrae "/ 

1 "Note Book," iii. 123-5, case 1106 ; briefly noticed by Adams, op. 
cit. p. 273. Other references bearing on this case will be found in the 
"Excerpta e rotulis finium," i. 249, 259, 309. For Cottingham, see 
"Red Book of the Exchequer," p. 490; " Rotuli Chartarum," 12^, 



VEL PER LEGEM TERRAE 105 

Eustace de Stuteville seems to have come to an 
arrangement with Hugh Wake, one of his rivals, 1 and 
was clearly doubtful of his claim. But the King had 
disseised him without a judgment, and the decision 
at Wallingford points to the legal process by assize 
and writ, to a possessory and proprietary action, as 
the means of "summons and judgment ". A thousand 
pounds was a large sum. Yet a royal admission of 
error in the royal court was perhaps worth the money. 
The case appears on a roll of " pleas which followed 
the King before W. de Ralegh ". Eustace was appar- 
ently restored, not by " judicium parium," but by one 
of the King's judges. The other claimants were dis- 
seised by an administrative act of their peers ; but in 
Eustace's history there is no mention of such a judg- 
ment. Stress is laid, not on it, but on summons, 
judgment, assize of mort d'ancestor, writ of right, the 
law of the land. 

A more famous trial of the same year illustrates the 
proceedings "per legem terrae" in the case of out- 
lawry. The decrees of outlawry declared by King 
Henry against the great Hubert de Burgh and also 
-against Gilbert Basset and other companions of 
Richard, Earl Marshal, were annulled by a judgment 
of their peers, declared by the mouth of the same 
William Ralegh who decided the Cottingham case. 
The King, says the record, 2 desired to show justice, 
.and on 23 May, 1234, called together all the magnates 
then present in his court at Gloucester, including 
Edmund, Archbishop of Canterbury, bishops, earls, 

54^, and Lewis, "Topographical Dictionary," s.v. In 1241, shortly 
before his death, Eustace de Stuteville was appointed one of the four 
knights to inspect the royal castles in Yorkshire (" Close Rolls," 
Henry III, 1237-1242, p. 354). 

1 " Excerpta e rotulis finium," i. 309. 
2 "Note Book," ii. 664-7, case 857. 



1 06 PER IUDICIUM PARIUM 

and others. This judgment ended the political crisis 
during which the Earl Marshal, before his violent 
death in Ireland, and Gilbert Basset had made the 
claim to be tried by their peers, and had been met 
by Peter des Roches with the well-known retort 
" There are no peers in England ". One would ex- 
pect, therefore, a deliverance by the court at Glou- 
cester on the question as to whether a baron could 
be outlawed without a judgment of his peers. But 
the judgment contains nothing of the kind. It re- 
verses the decree of outlawry in Gilbert Basset's case, 
(i) because the act which provoked the King (the 
rescue, namely, of Hubert de Burgh from sanctuary 
at Devizes) was done in the course of war (" occasione 
guerrae") and was not, therefore, an ordinary criminal 
offence; (2) because the proceedings of outlawry in 
the shire court of Wiltshire were irregular ; and only 
in the third place (3) because Gilbert and his friends 
had been prepared to stand their trial in the King's 
Court. The decree against Hubert de Burgh was 
annulled on the ground that escape from prison was 
not in itself punishable by outlawry. In both cases, 
stress is laid on the proceedings in the shire court,., 
that is to say, on the " lex terrae "- 1 The magnates 
clearly imply that these barons, distinguished though 
they were, could have been lawfully outlawed if they 
had fled " per appellum racionabile, aut per sectam 
Domini Regis ubi fama patriae accusaret ". Bracton, 
as Maitland points out, probably had this judgment in 
mind when he stated (f. 127) that outlawry at the 
King's suit or command is a nullity unless an inquest 

1 The phrase is explicitly used in another outlawry case, " Note 
Book," ii. 75, case 85, of the year 1220. Certain persons who had 
refused to answer a si: it and whose guilt was clear were condemned, if 
they continued to resist the royal officials, to be outlawed in " comitatu 
secundum legem terre ". 



VEL PER LEGEM TERRAE 107 

has been taken by the justices and the fugitive has 
been found guilty. 1 Elsewhere Maitland describes 
the judgment in Hubert's case as an "important step 
in constitutional history," since it made indictment or 
appeal a necessary preliminary to outlawry. 2 But 
was not the court simply enforcing the principle laid 
down in the Great Charter? Was it not interpreting 
the principle to mean that the " lex terrae " in a case 
of outlawry was the process in the shire court, in- 
volving either the indictment or the appeal ? 

II. 

1 have suggested that the barons did not claim a 
judgment of peers as an essential and universal remedy 
even for themselves. Their words do not imply this 
claim, and actual practice did not enforce it. The 
" lex terrae " might be trial by combat, as in the 
Marshal's case in 1205, or proceedings in a possessory 
action, as in Eustace de Stuteville's case, or indict- 
ment or appeal, as in the case of Gilbert Basset and 
Hubert de Burgh ; it did not involve a " judicium 
parium ". That was either an alternative or a last 
resort, a solution of a judicial or political deadlock. 3 
But it is not clear that the barons were thinking only 
of themselves. Indeed, the conviction that this clause 
asserts a claim to the judgment of peers in all cases 
has, I think, been father to the thought that the words 
" liber homo " do not include the ordinary freeman. 
Students of the Charter have felt that a claim to the 
judgment of his peers by the ordinary freeman was 
either unnecessary or absurd. They have urged also 

1 " Note Book," ii. 667, note. 

2 Pollock and Maitland, second edition, ii. 581. 

3 The famous case of the division of the Chester palatinate produced 
a situation of this kind. ("Note Book," cases 1217, 1227, 1273; 
especially the passage in case 1227, iii. 243). 



io8 PER IUDICIUM PARIUM 

that the barons had no special interest in the judicial 
rights of the ordinary freeman, and in the manner of 
King Charles I liked to speak of themselves as free- 
men. The substitution of the words "liber homo " in 
the thirty-ninth clause for the " barones et homines 
sui " of King John's letters had no special significance. 

First, let us look at the use of the words in the 
Charter. The freeman appears six times. In the 
fifteenth clause he is protected against unlawful and 
unreasonable aids levied by his lord; in the twenty- 
first against amercements which might shatter his 
social position ; in the thirtieth against forced con- 
tributions of horses and waggons for carrying pur- 
poses ; in the thirty-fourth against the loss of his court 
by a writ "praecipe"; in the thirty-ninth against 
arbitrary imprisonment, etc. ; and in the twenty-seventh 
clause regulations are laid down for the distribution of 
his chattels if he should die intestate. If we set aside 
the thirty-fourth and thirty-ninth clauses for the 
moment, the Charter clearly safeguards the ordinary 
freeman ; limits are set to the power of his lord ; local 
officials are to respect his freedom ; judges are to 
permit his neighbours to amerce him fairly ; his re- 
latives are not to suffer when he commits that last sin 
of intestacy. In two of these clauses the ordinary 
freeman is explicitly distinguished from the baron ; in 
the twenty-seventh and thirtieth he is primarily in- 
tended. Is it credible that in the thirty-fourth and 
thirty-ninth clauses the same phrase, "liber homo," 
can exclude him ? l 

Recent exponents of the Charter have not, I think, 
allowed sufficient weight to the fact that the document 

1 The only argument in favour of exclusion is that, in the thirty- 
fourth clause, where the freeman's court is protected against the writ 
" praecipe," only a baron's court could be intended. But could not 
any manorial court suffer through the writ ? 



VEL PER LEGEM TERRAE 109 

was not a baronial manifesto, but a carefully drafted 
statement of a settlement in which churchmen, citizens, 
and statesmen who had large experience of public 
affairs took part. Archbishop Langton and several 
of the barons on each side were not likely to overlook 
the growing significance of the freeman in English 
society, or the danger which the community of the 
realm would run if his economic and legal position 
were not protected. By the close of the twelfth 
century the freeholder was an important element 
in every feudal State of civilized Europe. In most 
countries it is probable that he did little more than 
represent a general economic tendency towards fixed 
services and money rents ; and that affranchisement 
was a privilege of more or less sentimental value, not 
affecting the actual position of a serf. 1 In England the 
freeman, however slightly his economic status might 
differ from that of the villein, was becoming essential 
to the State, as the State was more and more defined 
in laws and institutions. 2 Within the economy of the 
manor, the freeman, or, to speak more accurately, the 
free tenant, 3 strengthened the wealth and dignity of 
the lord. On the one hand, enfranchised villeins 

1 See, for example, Miss Archibald's paper on the " Serfs of Sainte- 
Genevieve" in the "English Historical Review," xxv. p. 25. On the 
difference between England and Germany cf. Vinogradoff, ' ' Villainage 
in England," pp. 179, 180. G. von Below, on the other hand, insists 
on the economic and political significance of the development of the 
free element in Germany ; " Der deutsche Staat des Mittelalters," i. chap, 
iv., e.g. pp. 119, 128. 

2 Vinogradoff, p. 181, and passim. Cf. Magna Carta, 19, for the 
free tenants required during the holding of possessory assizes. 

3 A freeman could hold by base tenure. At this time, however, the 
phrases u liber homo," " liber tenens," were not carefully distinguished. 
Cf. the treaty with William Longchamp in 1191, quoted below, and 
Magna Carta, 15, 19. 



no PER IUDICIUM PARIUM 

were founding families. 1 On the other hand, as the 
"Domesday Book" of St. Paul's records, old tene- 
ments were frequently resettled, or new tenements 
divided, among free tenants paying fixed rents. 2 It 
was to the common interest that these men should not 
be broken ; and the thirty-ninth clause of the Charter, in 
protecting them and their tenements against illegal 
interference from the King and his officials, in my 
opinion simply applied the general principle expressed 
in other clauses. 

We have seen that, in the case of outlawry, the 
"lex terrae" required a charge either 'by indictment 
or appeal in the shire court. 3 There is some evidence 
for the view that the thirty-ninth clause met in addi- 
tion the desire of the freeman for protection against 
administrative proceedings at the King's command, and 
especially against imprisonment without the prospect 
of a trial in the local court. The contest between the 
principles of order and liberty had already begun. 
The natural instrument of order was the prison. 
During a political crisis or an epidemic of criminal 
unrest it was convenient to issue commands for 
a summary inquiry and for the imprisonment of 
suspected persons "during his Majesty's pleasure". 
The well-known "edictum regium " of 1195, preserved 
in the chronicle of Roger of Howden, 4 was in fact 

1 An interesting case is the family of Simon of Alverton, whose sons 
were enfranchised. See Prof. Sten ton's paper, "Early Manumis- 
sions at Staunton, Nottinghamshire," in the "English Historical 
Review," xxvi, 96-7. 

2 "The Domesday of St. Paul's" (Camden Society) passim. The 
free tenants, tenants "ad censum," tenants at a rent of new essarts 
divided by the farmers of the manors (e.g. pp. 12, 36) are as numerous 
as the other tenants. A forester, a smith, a merchant, and a Templar's 
" relicta " were among the tenants of the essart at Wickham (p. 37). 

3 " Note Book," case 857, quoted above. 

4 Howden, iii. 299-300 ; " Select Charters " (ninth edition), p. 264, 
(tenth edition), pp. 257-8. 



VEL PER LEGEM TERRAE in 

a command of this sort a Crimes Act, disregarding 
the usual procedure. During King Richard's absence 
in the Holy Land the country had been much dis- 
turbed ; and Hubert Walter, the new justiciar, was 
determined to restore order. The great inquiry of 
1 194 did not meet the situation : the justices had prob- 
ably been too busy to get through the ordinary police 
business ; indeed Roger of Howden tells us that a very 
important inquiry into the administration of sheriffs and 
local officials was postponed. Hence in 1 195 knights 
were appointed to deal with crime. A sworn obliga- 
tion was imposed upon all males of fifteen years and 
upwards. The inhabitants of each district (" ballia ") 
swore that they would keep the King's peace, join in 
the hue and cry, deliver all who were guilty or sus- 
pected of robbery and theft to the knights appointed. 
The knights passed on the malefactors to the sheriff, 
who was not to release them save at the command 
of the King or justiciar " non 'deliberandos nisi per 
regem aut ejus capitalem justitiam ". The duty pre- 
scribed to the King's subjects was very similar to that 
which they performed in the hundred court, 1 but the 
procedure was different. The presentments were re- 
ceived by special commissioners, and the imprisonment 
of those presented followed as a matter of course : 
"per sacramentum fidelium hominum de visneto," 
says Roger of Howden, 2 "multos ceperunt et car- 
ceribus regis incluserunt." No mention is made of 
judgment in the shire court before the justices- 
The trustworthy men were not the jury of present- 
ment : and the accused had no opportunity of alleging 
their general good character and of submitting to the 
proof. It is probable that the ordinary methods of 
attaching and trying criminals had broken down ; they 

'Cf. Morris, "The Frankpledge System," pp. 126-7. 
2 Howden, iii. 300. 



ii2 PER IUDICIUM PARIUM 

broke down periodically during the Middle Ages ; but 
they were quite definite and must have been well 
understood. 1 Suspected persons were arrested by 
the sheriff and his bailiffs, sometimes by the tithing 
man or in the hue and cry. They might be locked 
up in the the King's gaol or entrusted to the custody 
of the tithing ; or they might be handed over to their 
relatives or pledges who would be made responsible 
for their appearance. 2 They were presented, whether 
in captivity or not, at the sheriff's tourn, and again at 
the shire court before the justices on eyre. If they 
were of bad repute and had been arrested in the act, 
they might be punished according to the discretion of 
the court without further inquiry, that is to say, 
without going to the ordeal or other proof; yet even 
in such a case the assize of Clarendon admitted the 
right of the accused to find a warrenty "si non 
habeat warrentum non habeat legem ". 3 Other sus- 
pected persons, those, for example, of decent repute 
who had been found in possession of stolen goods, 
went to the ordeal and, after the abolition of the 
ordeal, were given the opportunity of placing them- 
selves "super patriam," of standing by the verdict of 
a jury. In all this process imprisonment was merely 
an incidental affair ; it was not yet a common form 
of punishment after conviction, and only gradually 
became so general as a form of detention as to 
necessitate commissions of gaol delivery. 

The distinction between the normal procedure and 
the drastic action taken by Hubert Walter in 1 195 was 
to be of the greatest importance in future history. Was- 
it realized at the time ? 

1 Morris, op. cit. pp. 93 ff. 

2 For the restriction on bail cf. "Note Book" iii. 471, 556, cases 
1600, 1716. 

3 Assize of Clarendon, 12. 



VEL PER LEGEM TERRAE 113 

At first sight the answer seems to be decidedly in 
the negative. It is not likely that any opposition was 
made to the particular edict of 1 195 ; the royal duty of 
good government included the maintenance of the pub- 
lic peace. These malefactors were persons of ill fame 
and were arrested after sworn inquiry among their 
neighbours. Whether they were tried or not in the 
future would be a matter of general indifference and 
could be left to the royal discretion. Moreover, the 
King was the source of justice; "the man committed 
to gaol 'per mandatum domini Regis' would," in the 
twelfth and thirteenth centuries, " have found none to 
liberate him." 1 By Bracton's time a sheriff who re- 
leased on mainprise a man who had been arrested by 
the King's command or on the command of the justi- 
ciar would have defied the law of England ; 2 and, 
although this rule, it is true, applied to prisoners 
awaiting trial, there was nothing to compel the King 
to bring them to trial. 

It must be admitted that administrative action such 
as Hubert Walter's was regarded as within the lawful 
scope of authority ; also that persons imprisoned by 
the King's command could, before the law of "habeas 
corpus " had been painfully hammered out, be tried at 
the King's pleasure. The Edictum Regium of 1195 is 
the first of a long series of formal acts, enforcing what 
may be termed the " administrative law " of the pre- 
rogative a prerogative which still exists in King and 
Parliament. Yet I believe that, even at the close of 
the twelfth century, the desire to emphasize the extra- 
ordinary nature of this reserved power was both felt 
and expressed. This desire is expressed, I think, in 
the thirty-ninth clause of the Great Charter. The 
Charter did not succeed in abolishing the prerogative 

1 Pollock and Maitland, ii. 587. 

^Ibid. ii. 585, on the writ "de homine replegiando ". 



n 4 PER IUDICIUM PARIUM 

right of imprisonment it was more successful in 
stretching the protection of the law over the free tene- 
ment but it did assert the principle that the freeman 
must normally be accused and punished in a special 
manner, however awkward or inefficient that manner 
might be. 

From the days of Henry II, the two methods of keep- 
ing the King's peace the one "per legem terrae," the 
other by administrative action may be traced in 
mediaeval England. 

i. It is clear that Henry II anticipated the action of 
Hubert Walter, probably with much less formality. 
The proof is to be found in the action of Queen Eleanor 
after Henry's death in 1189. She sent commissioners 
through England to liberate prisoners. The orders 
given to these commissioners carefully distinguished 
various kinds of persons who were in gaol. Offenders 
against the forest law 1 were to be set tree and par- 
doned. Persons imprisoned " per commune rectum " 
were to find pledge for their appearance in case an ap- 
peal should be brought against them; if they could 
find no pledge, they were to be sworn to appear. 
Various other classes who had been subject to legal 
process were also enumerated ; they were in most 
cases to be released under conditions. But one group 
was, like the offenders against forest law, to be freed 
unconditionally : 

" Et ut omnes alii qui cap.ti essent et retenti per 
uoluntatem regis uel justitiae ejus, qui non essent 
retenti per commune rectum comitatus uel hundredi 
uel per appellationem, quieti essent." 

Clearly, in 1 189 the King's prisons contained persons 

1 Offenders against the law of the forest, it will be remembered, 
were not repleviable. They were kept in prison pending trial (Pollock 
and Maitland, ii. 585). 

2 Benedict of Peterborough, ii. 74. 



VEL PER LEGEM TERRAE 115 

who had been imprisoned by decree, not in accordance 
with the procedure defined in the assizes of Clarendon 
and Northampton. Unimportant people who should 
have been presented at the hundred court had not 
escaped Henry's attention. However salutary this 
direct intervention may have been, it was felt to be 
anomalous; in order to show that a new reign had 
begun the Queen Mother declared an act of grace. 

2. Two years later restrictions were imposed by the 
barons on the justiciar's power of administrative dis- 
seisin. The critics of William Longchamp admitted 
the right of the King to disseise a vassal of his pro- 
perty without a rigid observance of the new proce- 
dure ; but as a rule the lawful customs and assizes of 
the kingdom must be observed : 

"Sed et concessum est quod episcopi et abbates, 
comites et barones, uauassores et liberi-tenentes, non 
ad uoluntatem justitiarum uel ministrorum domini 
regis de terris uel catallis suis dissaisientur sed judicio 
curie domini regis secundum legitimas consuetudines 
et assisas regni tractabuntur uel per mandatum domini 
regis." 1 

Two points are noticeable in this passage. The free 
tenant, who is distinguished from the baron and va- 
vassor, was explicitly included ; and protection was 
particularly desired from the royal officials. The de- 
mand was extended in 1215, to protection against the 
King, and was defined still more clearly in 1217, in a 
passage which recalls the wording of this treaty : 

" Nullus liber homo . . . dissaisietur de libero tene- 
mento suo uel libertatibus uel liberis consuetudinibus 
suis . . . nisi per legale judicium parium suorum uel 
per legem terrae." 2 

3. Disseisin was more easily dealt with than im- 
prisonment. We have seen that, between 1189 and 

1 Howden, iii. 136. 2 Charter of 1217, 35. 



ii6 PER IUDICIUM PARIUM 

1215, Hubert Walter systematized the practice of im- 
prisonment " per mandatum regis," and forbade release 
" nisi per regem aut ejus capitalem justitiam ". In John's 
reign, this practice, recognized as anomalous in 1189, 
became a nuisance. John was for one thing not con- 
cerned to take the opinion of his victims' neighbours 
into consideration : he was after booty, not justice. 
He spared neither small nor great ; and he was com- 
pelled to surrender this prerogative in 1215. As Mr. 
McKechnie has reminded us, later, opponents of the 
jurisdiction of the King's council interpreted the thirty- 
ninth clause, of the Charter in this way. They insisted 
upon the necessity of indictment or presentment by 
good and lawful people of the neighbourhood in which 
the crime was committed. Coke borrowed the same 
construction from Edward Ill's statutes when he trans- 
lated " per legem terrae " by the words " due process 
of law "- 1 The phrase, indeed, is a very fair equiva- 
lent to Queen Eleanor's "per commune rectum comi- 
tatus uel hundredi uel per appellationem ". On this 
view the clause comprehended the criminal procedure 
of the twelfth century. It said in effect : " Unless the 
case is so anomalous or the accused so important that 
a trial in the King's Court by the magnates of the realm 
is desirable, he must be dealt with in the usual way, 
by presentment or indictment, in hundred or shire 
courts with recourse to the customary proofs ". 

4. Neither baron nor freeman got matters all his 
own way. In the thirteenth century we have "state- 
prisoners " who did not find much help in Magna Carta. 
In 1241 the sheriffs were instructed by Henry III to 
keep suspected persons " in prisone nostra donee a 
nobis aliud habueris mandatum ". 2 In 1264 Simon de 
Montfort went further than Hubert Walter had gone 

1 McKechnie, p. 442. 

2 "Close Rolls," Henry III, 1237-1242, p. 356. 



VEL PER LEGEM TERRAE 117 

in 1 195. In the King's name he placed every shire 
under a single "custos pads," who was instructed to 
use the whole strength of the shire for the arrest of 
criminals and disturbers of the peace ; the arrested 
persons were to be kept in custody " donee aliud inde 
praeceperimus ". l But Simon's action was taken under 
very abnormal conditions. On the whole, the princi- 
ples laid down in the Charter were observed with re- 
markable continuity. I have already pointed out how 
Henry III was obliged in 1234 to reverse an unlawful 
disseisin and the unlawful outlawry of certain barons. 
The freeman was also protected. The royal officials, 
for example, had reason to be very prudent and cir- 
cumspect in their dealing with suspected persons : a 
rash imprisonment might involve them in heavy 
damages. 2 The periodic revival of disorder, in fact, 
was encouraged by the conditions which made officials 
and communities alike unwilling to prosecute their 
duties a false step was so expensive. The Govern- 
ment tried to deal with disorder by reforms in the 
police organization, but did not except on rare oc- 
casions, as in 1241 and 1264 interfere with procedure. 
The police reforms were no more an infringement of 
the Charter than was the growth in the practice of im- 
prisonment pending trial, or the rule that a man so 
imprisoned by the King's command could not be re- 
plevied. Yet these reforms have probably been con- 
fused with the occasional edicts interfering with the 
"lex terrae," although in reality they maintained 

lu Select Charters" (ninth edition), pp. 411, 412; (tenth edition), 
p. 400. 

' 2 " Note Book," ii. 366, 542, cases 465, 705. In the latter case a 
sheriff was declared " in misericordiam " for wrongful imprisonment, 
even although the sheriff " eos cepit eo quod fama patriae, scl. xl 
homines," said that if murder had been committed, the accused were 
the guilty persons. 



n8 PER IUDICIUM PARIUM 

continuity in procedure. The thirteenth century con- 
servators of the peace, whether they were Serjeants 
elected by the shire, or knights appointed by the King, 1 
or important barons invested with special powers, 
were concerned mainly with the "visum armorum " 
and the process of arrest. Just as the headboroughs 
and constables kept the peace in township and manor, 2 
so the conservators assisted the execution of the 
common law in hundred and shire. The elaborate 
writ of 1242, which assigned knights in each shire, 
refers explicitly to the subsequent trial of suspected 
persons "per legem terrae," thus correcting the action 
taken in the previous year : 

" Suspectos autem de die per quoscumque arestatos 
recipiant vicecomites sine dilacione et difficultate et 
salvo custodiant, donee per legem terrae deliberentur." 

One of the objects of the Statute of Winchester, 
which codified previous legislation in 1285, was the 
more conscientious and exhaustive presentment of 
malefactors by the local juries. The conservators 
were gradually given judicial functions and developed 
into the justices of the peace; but they still adminis- 
tered the common law the " lex terrae ". Hence, 
when Stubbs traced a connection between Hubert 
Walter's "milites assignati," Earl Simon's "custos 
pads," and the justice of the peace, he was, I venture 
to think, suggesting a misleading confusion between 
the exceptional and the normal in the history of 
criminal law. 4 So far as their police duties were 
concerned, the connection between these officials is 
clear, but it is easy to forget that, whereas the justice 

*" Close Rolls," Henry III, 1237-1242 ; pp. 76, 356, 412, 482. 

2 Morris, " The Frankpledge System," p. 106. 

3 " Close Rolls," p. 484. 

4 "Constitutional History," ii. 285-6, 236 ; "Select Charters" (ninth 
edition), p. 263 ; (tenth edition), p. 257. 



VEL PER LEGEM TERRAE 119 

of the peace had behind him the Assizes of Arms and 
Clarendon, the officials appointed in 1 195 and 1264 had 
not. The peculiarity of the measures taken in 1195 
and 1264 lay, not in the method of arrest, but in the 
imprisonment during the King's pleasure. The com- 
missions issued to the justices of the peace, on the 
contrary, from the period when they combined the 
functions of conservators and justices until the year 
1590, directed the enforcement of the Statute of Win- 
chester, that is to say, of the final definition of the 
system laid down in the Assizes of Arms, Clarendon 
and Northampton. 1 The justices were so circum- 
scribed by the " lex terrae " that in the fifteenth and 
sixteenth centuries they could not order an arrest 
until the accused had been indicted in " open sessions 
of the peace ". 2 In Edward Ill's reign the practice 
was more elastic, but well within the limits of the 
traditional system. According to the commission of 
1357 the justices were to arrest after inquiry "per 
sacramentum proborum et legalium hominum," and to 
determine the cases "secundum legem et consuetu- 
dinem regni nostri Angliae ". The statute of 1360 
ordered them to pursue, arrest, and punish evildoers 
" selonc la ley et custumes du roialme ". 3 

The " lex terrae " constantly broke down in the time 
of justices of the peace as it had constantly broken 
down in hundred and shire. The difficulties are 
described clearly in the Statute of Winchester, and in 
the petitions to the judges on eyre, to council, to the 
chancellor, and to Parliament. The folk of the district 
would not present, officials grew slack and corrupt. 

1 Crump and Johnson in " English Historical Review," xxvii. 233 ; 
Prothero, " Statutes and Constitutional Documents" (third edition), p. 
144. 

2 Holdsworth, " History of English Law," i. 131-2. 
3 " English Historical Review," xxvii. 227, 233-4. 



120 PER IUDICIUM PARIUM 

The justices in their turn were too often either over- 
worked or open to unjust influences. In the twelfth and 
thirteenth centuries, the King's ministers or council 
tried to remedy matters by decrees for laying criminals 
by the heels ; in the fourteenth the council began to 
hear and determine petitions on its own account 
began, in short, to lay the foundation of that judicial 
control which was later to develop into the Courts of 
Star Chamber and Requests. 1 It was under these new 
circumstances that Parliament, appealing to the Great 
Charter, raised its voice on behalf of the "lex terrae," 
the system of indictment and presentment. The party 
of law, not for the last time in our history, was not 
the party of order, even though it was the party of 
progress. 

In the fourteenth century the important phrase was 
" lex terrae " ; in the seventeenth the party of law and 
progress fastened on the phrase "judicium parium ". 
In this paper I have tried to show that, however badly 
the contemporaries of Pym and Selden may have 
blundered, there is a good deal to be said for their 
fourteenth-century predecessors. In 1215 neither 
baron nor freeman was concerned primarily with a 
judgment of peers so much as with justice. The 
"judicium parium" ran through a good part of 
English procedure, but was not universal. From the 
baronial standpoint it was especially important as a 
last resort, in cases where justice had not been done, 
and the law was uncertain. The barons had no 
intention of excluding from the " lex terrae " any part 
of the new judicial system, neither the Court of 



judicial powers of the Council were asserted in 1242, when 
drastic punishment was threatened " per consilium " in the case of those 
who abetted or permitted the escape of malefactors. This passage in 
the writ ("Close Rolls," Henry III, 1237-1242, pp. 483-4) marks a 
transition to later ideas. 



VEL PER LEGEM TERRAE 121 

'Common Pleas, nor the justices in eyre, nor the 
presentment of the grand jury. They were demand- 
ing, as they demanded at Merton a few years later, 
that the practices of English law should not be 
changed. In the same spirit they desired that sheriffs 
and other local officials should be men acquainted with 
the "lex regni ".* And on the whole they got their 
way. The peculiarity of English history is not that 
the common law is supreme, but that it is so practised 
as to seem supreme, and that other expressions of the 
sovereign power whether the equitable jurisdiction 
of the King's Council in the fourteenth century or a 
Defence of the Realm Act in the twentieth are 
universally admitted to be temporary and abnormal. 
If King John had not grossly abused his power as the 
source of justice, it is quite possible that this tradition 
would never have been formed. The policy of effici- 
ency practised by men like Hubert Walter, Thomas 
Cromwell, and Francis Bacon might well have 
gathered momentum and swept aside the prejudices 
in favour of the Common Law. 

1 Magna Carta, 45. 



MAGNA CARTA AND COMMON LAW. 

CHARLES HOWARD MC!LWAIN, Professor of History 
and Government, Harvard University. 

IN estimating the importance of Magna Carta what 
we chiefly need is a history of the document in the 
period after I2I5. 1 One of the most significant points 
in that subsequent development is the famous con- 
firmation by Edward I in 1297. This confirmation 
is in part as follows : " Know ye that we to the 
honour of God and of the holy Church, and to the 
profit of all our realm (' et a profist de tout nostre 
roiaume '), have granted for us and our heirs, that the 
Great Charter of Liberties ('le graunt chartre des 
fraunchises ') and the Charter of the Forest, which were 
made by common assent of all the realm (' les queles 
feurent faites par commun assent de tout le roiaume '),, 
in the time of King Henry our father, shall be kept in 
every point without breach (' soient tenues en toutz leur 
pointz, saunz nul blemisement '). And we will that 
these same charters shall be sent under our seal to 
our justices, both to those of the forest and to the rest, 
and to all sheriffs of shires, and to all our other 
officers, and to all our cities throughout the realrrv 
together with our writs in the which it shall be con- 
tained that they cause the aforesaid charters to be 
published and have it declared to the people that we 
have granted that they shall be observed in all points, 
and that our justices, sheriffs, mayors, and other 

1 " Law Quarterly Review," vol. xxi. p. 257. 
(122) 



MAGNA CARTA AND COMMON LAW 123 

officials who under us and by us have to administer 
the law of the land (' qui la loy de la terre desoutz 
nous et par nous ount a guier '), shall allow the said 
charters in pleas before them and judgments in all 
their points; that is to say, the Great Charter of 
Liberties as common law, and the Charter of the 
Forest according to the Assize of the Forest, for the 
relief of our people. (' c'est a savoir la grande chartre 
des franchises cume lay commune, e la chartre de la 
forest solom 1'assise de la forest, al amendement de 
nostre poeple '). 

" II. And we will that if any judgments be given from 
henceforth, contrary to the points of the charters 
aforesaid by justices or by any other our ministers 
that hold pleas before them touching the points of 
the charters, they shall be undone and holden for 
naught. 

"('E volums qe si nuls jugementz soient donez des- 
oremes encontre les pointz des chartres avauntdites, 
par justices et par nos autres ministres qui contre les 
pointz des chartres tenent plez devant eus, seient 
defaitz e pur nient tenuz '). 

"III. And we will that the same charters shall be 
sent under our seal to cathedral churches throughout 
our realm, and there remain, and shall be read before 
the people twice in the year. 

" IV. And that archbishops and bishops shall pro- 
nounce sentences of greater excommunication against 
all those that by word, deed, or counsel shall go 
against the aforesaid charters, or that in any point 
break or go against them. And that the said curses 
be twice a year denounced and published by the 
prelates aforesaid. And if the same prelates or any 
of them be remiss in the denunciation of the said 
sentences, the Archbishops of Canterbury and York 
for the time being, as is fitting, shall reprove them and 



i2 4 MAGNA CARTA AND COMMON LAW 

constrain them to make that denunciation in form 
aforesaid." 1 

Under the first of these sections the King's justices 
are directed to administer Magna Carta " as common 
law " (" cume lay commune "). " The sense hereof," says 
Coke, " is, that the Great Charter and the Charter of 
the Forest are to be holden for the Common Law, that 
is, the law common to all ; and that both the charters 
are in amendment of the realm ; that is to amend 
great mischiefs and inconveniences which oppressed 
the whole realm before the making of them." 2 

This paper is an attempt to explain still further 
" the sense hereof". But the most difficult part of the 
explanation as usual lies in that part of the provision 
whose meaning seems at first the most obvious "lay 
commune". "No tolerably prepared candidate in an 
English or American law school will hesitate to define 
an estate in fee simple," says Sir Frederick Pollock. 
" On the other hand, the greater have been a lawyer's 
opportunities of knowledge, and the more time he has 
given to the study of legal principles, the greater will 
be his hesitation in face of the apparently simple 
question, What is Law?" 3 One's opportunities of 
knowledge would have to be great indeed to be even 
in slight degree commensurate with his hesitation in 
attempting to define " common law " with all that it 
implied in 1297, but defined it must be in some fashion 
before we can understand the real significance of 
Magna Carta in the later Middle Ages. Some exam- 
ination of contemporary records has convinced me 
that Coke's interpretation is in the main the correct 

1 " Statutes of the Realm," i. 123 ; Bemont, "Charles des Libertes 
Anglaises," p. 96 ; Stubbs, "Select Charters" (ninth edition), p. 490; 
Blackstone, "Magna Carta," Ixxiv. 

2 "2 Inst." 526. 

3 " A First Book of Jurisprudence," p. 4. 



MAGNA CARTA AND COMMON LAW 125 

one, but one of his statements seems also to show 
that it is correct in a sense possibly somewhat different 
from the one he had in mind. This is his inclusion 
without comment of the Charter of the Forest with 
Magna Carta as the common law. What, then, is 
"the law common to all," what made it "common" 
in 1297, how did this conception of a common law and 
the mass of corresponding rights actually come into 
existence, and finally what light is thrown by an 
explanation of these things upon the history and 
character of Magna Carta itself? 

For a considerable part of the period when the 
common law was taking form in England there may 
be observed in the writers on law a certain struggle 
between the Roman idea of "lex" and the mediaeval 
conception of law as immemorial usage. The judges 
of those times, who were generally in orders, were 
better acquainted with Roman legal conceptions than 
many of their brethren of a much later time. Their 
knowledge and reverence for these ideas, coupled with 
the necessity they were under of administering a law 
of a different origin, at a less advanced stage of de- 
velopment, but with roots so deep in the traditions 
and habits of the people that its binding force was 
unquestionable these are the chief explanation of 
apparently incompatible statements concerning the 
basis and extent of the royal authority, which even 
the " addiciones " in a text like Bracton's cannot wholly 
explain. In the field of private law somewhat the 
same struggle is to be seen between " lex " and " con- 
suetudo " ; the one a product of the classical period 
of Roman law, the other a growth of the Middle Ages 
out of roots that are quite different. The mediaeval 
desire for unity led the jurists of the time to make 
interesting attempts to reconcile these conflicting 
conceptions. Constantine's famous dictum, " Consue- 



126 MAGNA CARTA AND COMMON LAW 

tudinis ususque longaevi non vilis auctoritas est, 1 
they gladly fasten upon, but it will not fully serve 
their needs until it is practically inverted. 2 So the 
author of Glanvill feels it necessary to apologize to 
his learned readers for an English customary law 
which he never thinks of questioning. 3 Glanvill is 
quoted word for word by the author of "Fleta," but 
without acknowledgment. 4 Bracton also begins his 
treatise with the usual liberal quotations from the 
" Institutes," and borrows from Glanvill the sentence 
identifying " consuetude " with " lex," but his treat- 
ment of the subject is fuller and much more valuable. 5 

1 " Code," 8, 52, 2 : " Consuetudinis ususque longaevi non vilis 
auctoritas est, verum non usque adeo sui valitura momento, ut aut 
rationem vincat aut legem ". 

2 " Legum autem Romanorum non est vilis auctoritas, sed non adeo 
vim suam extendunt, ut usum vincant aut mores. Strenuus autem 
jurisperitus, sicubi casus emerserit, qui consuetudine feudi non sit com- 
prehensus, absque calumnia uti poterit lege scripta." " Libri Feu- 
dorum," Lib. ii. Tit. i. ; Lehmann, "Das Langobardische Lehnrecht," 
pp. 1 14-15. See the interesting commentary of Cujas on these two pas- 
sages, in his edition, " De Feudis " (1566), pp. 72-4. For a modern 
discussion see Savigny, " System des Heutigen Romischen Rechts," 
vol. i. chap. iii. section 25 ; also note ii. at the end of volume one. 

3 The customary law, "consuetude," he also calls "jura regni," 
but he will not admit a sharp distinction between it and " lex," though 
it is mainly unwritten, for he is not ignorant of the popular origin of 
" lex " even in Rome " Leges namque Anglicanas, licet non scriptas, 
Leges appellari non videtur absurdum (cum hoc ipsum lex sit, ' quod 
principi placet, legis habet vigorem ') eas scilicet, quas super dubiis in 
consilio definiendis, procerum quidem consilio, et principis accedente 
authoritate, constat esse promulgatas." " Tractatus de Legibus et 
Consuetudinibus Regni Angliae, Prologus." Cf. Justinian, " Inst." i, 
2, 3, with which Glanvill, in common with nearly all the mediaeval 
English juristic writers, prefaces his treatise. 

4 " Proemium." 

5 " Cum autem fere in omnibus regionibus utantur legibus et jure 
scripto, sola Anglia usa est in suis finibus jure non scripto et consue- 
tudine. In ea quidem ex non scripto jus venit, quod usus comprobavit. 



MAGNA CARTA AND COMMON LAW 127 

It is clear that these mediaeval writers are faced with 
a " cousuetudo," a "lex non scripta," which is bind- 
ing much as "lex" was binding in the later Roman 
Empire. In order then, to apply their favourite texts 
in support of the existing law, they are under the 
necessity of including within " lex " what was certainly 
not included in Justinian's time. The outstanding 
fact is that custom had really become " law ". It was 
accepted by common usage "pro lege". This is al- 
most the central fact in early English law ; but we 
moderns, like the Romans of the later Empire, are so 
prone to identify " lex " and " law " that we can hardly 
appreciate the difficulty in which Glanvill and Bracton 
found themselves. Glanvill's apology for " consue- 
tudo " was directed at the classicists, and is easily un- 
derstood by ourselves ; to a twelfth-century English- 
man, if unlearned in Roman law, it probably had very 
little meaning. 

But " consuetude " was a thing well understood. 
Evidence of its importance and its binding character 
is abundant. Glanvill himself, in the passage quoted 
above, 1 though he is paraphrasing the " Institutes," can- 

Sed absurdum non erit leges Anglicanas (licet non scriptas) leges ap- 
pellare, cum legis vigorem habeat quicquid de consilio et de consensu 
magnatum et reipublicae communi sponsione, authoritate regis sive 
principis praecedente, juste fuerit definitum et approbatum. Sunt 
-autem in Anglia consuetudines plures et diversae, secundum diversi- 
tatem locorum. Habent enim Anglici plurima ex consuetudine, quae 
-non habent ex lege ; sicut in diversis comitatibus, civitatibus, burgis 
t villis, ubi semper inquirendum erit quae sit illius loci consuetude, et 
-qualiter utantur consuetudine qui consuetudines allegant " (folio I A). 

" Videndum est etiam quid sit lex ; et sciendum, quod lex commune 
praeceptum virorum prudentum consultum, delictorumque quae sponte 
vel ignorantia contrahuntur coertio, rei publicae sponsio communis " 
(folio 2 A; "Digest," i. 3, i). 

" Consuetudo vero quandoque pro lege observatur in partibus, ubi 
fuerit more utentium approbata, et vicem legis obtinet, longaevi enim 
temporis usus et consuetudinibus non est vilis authoritas" (folio 2 A). 

1 P. 126, note 3. 



128 MAGNA CARTA AND COMMON LAW 

not say, as they do, that in England the " law " is what 
the people, or what anyone, "constituebat ". Instead, he 
has to say that it consists of those things " quas super 
dubiis in consilio definiendis, procerum quidem con- 
silio, et principio accedente authoritate, constat esse 
promulgatas ". It is something already in existence, 
which may indeed need defining, but can only be pro- 
mulgated, not made. The celebrated Excommunication 
of 1253 mentions only those who violate the liberties 
of the Church, Magna Carta, the Charter of the Forest, 
" vel antiquas regni consuetudines approbatas "- 1 It is 
not difficult to prove that these "ancient customs of the 
realm " were of binding force, even of supreme binding 
force. So the author of the " Mirror of Justices," who 
may certainly be trusted as an interpreter of contem- 
porary words and phrases, though we can no longer 
believe all his stories, declares that the article in the 
Statute of Marlborough concerning redisseisors is re- 
prehensible, because "no special ordinance ought to 
exceed common law " (" car nul mandement especial ne 
deit passer comun dreit "). 2 And we find the justices of 
both benches required to take oath that in case they 
receive letters from the King commanding anything 
"contrary to the law," they will enforce the law not- 
withstanding such letters. The Parliament Roll of 
the year I33O 3 contains an interesting petition by 
several nobles setting forth that they were entitled to 
lands escheated at the time of the suppression of the 
Templars, which lands, however, had been handed 
over, by a statute irregularly procured by the De- 
spencers, to the Hospitallers. They pray that this 
statute be annulled and quote the opinions of the 

1 Bemont, " Chartes des Libertes Anglaises," p. 72. 
2 Selden Society, vol. vii. 184. 
3 " Rot. Parl." ii. 41-42, no. 52. 



MAGNA CARTA AND COMMON LAW 129 

judges against it " Les dites Justices disoient ap- 
pertement et expressement, qe le Roi ne ne devote ne 
ne le poiet faire par Ley ; non pas pur ce les ditz 
Hugh et Hugh, par poair q'il avoient, firent fair un 
Statut, sicome piert par le Statut, Qe les Hospitallers 
eussent les terres de Templiers. Et en lequel Estatute 
poet estre trowe, qe les Justices ne s'assentirent point ; 
car ils ne poient pur lour serment par la disheritaunce 
du Roy et de ses gentz. Et disoient, qe ce sunt con- 
trarie a Ley, isse qe eel Estatut se fist contre Ley et 
centre reson." In 1341, during the struggle between 
Edward III and his Parliament, the King had been 
compelled to make certain important concessions in 
return for the parliamentary grants, but when these 
had to be put in the form of a statute, the chancellor, 
treasurer, and some of the justices protested that they 
would not enforce them " en cas qe meismes les Estatutz 
fussent contraires a les Leies et Usages du Roialme 
lesqueux ils feurent serementez de garder". 1 The 

lu Rot. Parl." ii. 131^, no. 42. For the controversy, see Stubbs, 
"Constitutional History," ii. (fourth edition) pp. 407-10. Rymer gives 
one of the writs for the publication of this revocation, addressed to the 
Sheriff of Lincoln, dated i October, 1341 (" Foedera " (Record Commis- 
sion) vol. ii. pt. ii. 1177). In it the King declares that since the provisions 
complained of " (quidam articuli) legibus et consuetudinibus regni nostri 
Angliae, ac juribus et praerogativis nostris regiis, expresse contrarii 
praetendantur per modum statuti per nos fuisse concessi " ; therefore, 
" considerantes qualiter ad observationem et defensionem legum, con- 
suetudinum, jurium et praerogativarum hujusmodi, astricti sumus vinculo 
juramenti," he desires that the said statute be revoked, even though " dis- 
simulavimus sicut oportuit et dictum praetensum statutum sigillari per- 
missimus ilia vice ". But he hastens to add and this is also significant 
" volentes tamen quod articuli, in dicto praetenso statute contend, qui 
per alia statuta nostra vel progenitorum nostrorum Regum Angliae sunt 
prius approbati, juxta formam dictorum statutorum, in omnibus, prout 
convenit, observentur ". By his own admission the King's action seems 
to warrant Stubbs's characterization of it as " a piece of atrocious du- 
plicity," but the reasons he finds necessary to assign for it are none the 

9 



130 MAGNA CARTA AND COMMON LAW 

reasons they assign are significant whether they were 
sincere or not. For the year 1347 there is a petition 
on the Parliament Roll against a judgment made in 
Parliament, which is declared to be "contre le Leis de 
Roialme et les Usages aprovez". 1 In 1397 Parliament 
annulled the award of Parliament convicting Hugh 
Despencer, and seemingly endorsed the charge that 
the Act of Edward III affirming this award "feust fait 
contre droit, loy, et reson . . . quel Estatut qant a les 
ditz articles n'est my droiturel ne resonable, ne deust 
estre de force par la ley . . . estoit encontre droit et 
reson et encontre la ley de la Terre ". 2 Two years later, 
on the accession of Henry IV, the new King declared : 
" Qe il n'est pas son entente ne voluntee pur tourner les 
Leyes, Estatutz, ne bones Usages, . . . mes pur garder 
les anciens Leyes et Estatutz, ordeignez et usez en 
temps de ses nobles progenitours . . . solonc son ser- 

less instructive. This revocation was made, however, without consult- 
ing the Commons " volentes ea . . . ad statum debitum revocare, super 
hoc cum comitibus et baronibus, ac peritis aliis, dicti regni nostri con- 
silium habuimus et tractatum" and therefore, as an enactment of 
common law, had eventually to be put in form of a new statute with 
the assent of the lower house. This assent was not given until the 
next Parliament, which met in 1343, two years later. It is an assent 
only in form then, for the Commons were dissatisfied. They petitioned 
for the observance of recent statutes, especially for those made in return 
for their grants. The only satisfaction they got was the royal response. 
" II plest au Roi qe les Estatuts soient veuz et examinez, et ceuxqe sont 
d'amender soient amendez, et les bons estoisent en lour force." In 
respect to the statute annulled two years before the King answered, " Le 
Roi nadgairs apperceivant qe le dit Estatut feust contre son Serement 
et en blemissement de sa Corone et sa Roialtee, et contre la Ley de la 
terre en plusours pointz, si fist repeller meisme 1'Estatut. Mes il voet 
qe les pointz du dit Estatut soient examinez, et ceux qe serront trovez 
honurables et profitables pur le Roi et son people soient ore faitz en 
novel Estatut, et gardez desore." " Rot. Parl." ii. 139, nos. 1-4. 
No corresponding enactment is to be found on the Statute Roll of that 
year. 

1 " Rot. Parl." ii. 173, no. 65. 2 Ibid. Hi. 367 A. 



MAGNA CARTA AND COMMON LAW 131 

ment ".* The " Pronunciatio," by which the Parliament 
of i Henry VI was opened, declares the purpose of the 
session to be the enjoyment by all classes of their 
liberties and franchises which have not been repealed 
" ne par la Commune leie repellables," 2 and the statutes 
of the next year open with a confirmation of all such 
franchises " bien usez et nient repellez ne par la com- 
mune ley repellablez ". 3 

Some of these examples undoubtedly arise out of 
factional and even revolutionary struggles, but the 
frequent and repeated insistence upon the supremacy 
of the common law, as a justification, even though it 
may be at times an unjust action that is justified, 
seems to show conclusively the position occupied by 
the common law. It was, in a very real sense, a 
fundamental law. 

But if this law was really supreme it becomes the 
more necessary to try to discover the points in which 
it differed from other rules or enactments ; to ascertair. 
as nearly as we can just what was common law. From 
the passage quoted above from Bracton 4 it appears 
that custom has the force of law in England, "appro- 
bata more utentium " ; and that these " consuetudines " 
are either " plures et diversae," i.e. particular customs ; 
or common custom, which is " consuetude regni 
Angliae ". Thus he speaks of the King's retaining an 
outlaw's lands for a year and a day, "sicut esse debet 
secundum consuetudinem regni nostri Angliae " ; 5 or of 
waste " contra consuetudinem regni nostri " ; 6 or of an 
inquest "secundum consuetudinem regni Angliae". 7 
So he declares : " Et sicut papa ordinare potest in spirit- 
ualibus quoad ordines et dignitates, ita potest rex in 
temporalibus de haereditatibus dandis vel haeredibus 

1 "Rot. Parl." iii. 434, no. 108. 2 Ibid. iv. 169 B. 

3 2 Hen. VI, cap. i. 4 Ante, p. 126, note 5. 5 Folio 129 B. 
6 Ibid.$\f> A. 7 Ibid. 307 A. 



132 MAGNA CARTA AND COMMON LAW 

constituendis secundum consuetudinem regni sui. 
Habet enim quodlibet regnum suas consuetudines et 
diversas, poterit enim una esse consuetude in regno 
Angliae, et alia in regno Franciae quantum ad suc- 
cessiones. 1 In Bracton's day the organization and 
powers of Parliament were still undeveloped and 
the terminology of legislation was not yet fixed. His 
favourite term for enactments is " constitutio," in which 
he shows his Roman and canon law training. He re- 
fers to the Statute of Merton as "Nova constitutio," 5 
and to a violation of it as "fraus Constitutioni". 3 He 
says also that a writ of novel disseisin will not issue 
where a tenant has granted so much of his estate in 
frankalmoign that his lord had lost his service, "quia 
hoc est contra constitutionem ". 4 In another place he 
asserts the same rule, "propter constitutionem liber- 
tatis ". 5 These " constitutiones " are in addition to 
11 consuetudines " which are in use throughout the 
realm. Hence many things are controlled by the law 
and custom of the realm. It is no accident that the 
writs appointing the justices for an assize of novel 
disseisin command them to do justice " secundum legem 
et consuetudinem regni nostri Angliae ". 6 Judges are 

1 Folio 417 B. He here refers to the famous " nolumus ". 

2 Ibid. 3126. 3 Folios 29 A, 32 A. 

4 Folio 169 B. By this " constitutio" Bracton means the provision 
which appeared first as article 39 of the second reissue of Magna Carta 
and was re-enacted as article 32 in the reissue of 1225 : "Nullus liber 
homo de cetero det amplius alicui vel vendat de terra sua quam ut de 
residue terrae suae possit sufficienter fieri domino feodi servitium ei debi- 
tum quod pertinet ad feodum illud ". He cites the case of Robert de 
Toteshall v. the Prior of Bricksite in 23 Henry III. This case is given 
in Bracton's " Note Book," No. 1248. 

5 Folio 1 68 B. 

* Ibid, no B. He also speaks of a woman's having a dower 
greater than is proper " secundum legem et consuetudinem regni " folio 
3*4 A). 



MAGNA CARTA AND COMMON LAW 133 

so to conduct themselves, says Bracton, "ut constitu- 
tiones et eorum edicta, juri et consuetudinibus appro- 
batis, et communi utilitati sint convenientia." 1 These 
are the rules to which Bracton refers as " lex terrae et 
regni consuetudines," 2 and "jus commune ". 3 Whether 
customary or statutory, it is the law common to the 
realm, as distinguished from particular law. So in 
discussing waste Bracton says : " Et quid debeat ad- 
judicari ad vastum, et quid non, propter magnitudinem 
et parvitem, habet quaelibet patria suum modum, con- 
stitutionem et consuetudinem ". 4 And modus, he says, 
following the familiar doctrine of the Roman lawyers, 
though in a sense probably never meant by them, and 
here speaking of grants, "legem dat donation! ; et 
modus tenendus est contra jus commune, et contra 
legem, quia modus et conventio vincunt legem ". 5 Of 
the law of succession he says : " Item poterit conditio 
impedire descensum ad proprios heredes, contra jus 
commune". 6 

"And because it is given to all in common it is 
called common law," says the author of the "Mirror 
of Justices," of the law with which he deals. 7 Refer- 
ences to the common law became more frequent as the 
thirteenth century closed. For example, it is said to 
be "encontre la commune ley " for a subject to inflict 
the death penalty on a criminal. 8 Later, in the reign 
of Richard II, the Commons complain of royal inter- 
ference with "la ley de la Terre et commune Droit". 9 

It is not necessary to multiply instances further, 
though they are many. The general connotation of 
"common law" is beyond doubt. Its exact meaning 

1 Folio 108 A. 2 Ibid. 133. 8 Folios 17 B, 19 B. 

4 Folio 316 B. *Ibid. 17 B. * Ibid. 196. 

7 Selden Society, vol. vii. 5. 

8 "Year Book," 20 & 21 Edw. I (Rolls Series), p. 99. 

9 " Rot. Parl." iii. 23, no. 96 (1377). 



134 MAGNA CARTA AND COMMON LAW 

becomes clearer, however, when we take note of the 
special law that contemporaries were wont to contrast 
with it. At times we find "la commune Loy" thus 
designated to distinguish it from enactment. 1 Or it 
might be the law of the Church that was contrasted 
with it; 2 the "lex forestae"; 3 "les Loys d'armes " 4 
the laws of the Court of the Constable and Marshal ; 5 
the law of the staple; 6 Roman law; or the "lex 
Parliamenti ". 7 

a Thus a litigant was told in i Edward II : "You are not aided by 
the common law nor by special law " (" par la commune ley ne par ley 
especial ") " Year Book," I & 2 Edw.dl (Selden Society), p. 31. In 
the next year another was informed that he must rely either on 
common law or on special law ("par la commune ley ou par ley 
especial ". Variant : " par aunciene ley ou par novele ley"), and that 
neither the common law nor " la novelle ley " will help him. Ibid. p. 60. 
In 1377 the Commons petitioned for the observance and confirmation of 
" la commune Loy et auxint les especialx Loys, Estatutz et Ordinances 
de la terre " made for the common profit and good governance of the 
realm in the times preceding. " Rot. Parl. " iii. 6, no. 20. 

2 In 1350 the King responded to a petition of the Commons 
against the extortion of the clergy in taking fees for proving wills, 
"Soit la Ley sur ceo use come devant, si bien la Ley de Seinte 
Eglise come la Ley de la terre. " Rot. Parl." ii. 230, No. 35. 

3 See Mr. G. J. Turner's introduction to " Select Pleas of the Forest " 
(Selden Society) ; Petit-Dutaillis, " Etudes Additionelles," in Stubbs, 
" Constitutional History," French translation, vol. ii. 

4 The " Pronunciatio " of the Parliament in 2 Richard II, declares 
that "les Loys de la terre et les Loys d'armes doivent estre come 
relatives, 1'une Loy tout dys aidant a 1'autre en tous cas busoign- 
ables ". " Rot. Parl. " iii. 33, no. 8. 

5 Statute, 13 Rich. II, stat. i. cap. ii. confines his jurisdiction 
to cases not triable " par la commune ley du Roialme ". 

6 The Statute of the Staple (27 Edw. Ill, stat. ii.) provides for 
the trial of merchants' cases " solonc la leie de lestaple et nemie a la 
commune ley " (cap ii.). All things touching the staple in the staple 
towns were to be determined " par la lei marchant . . . et nemie par la 
commune lei de la terre, ne par usages des Citees Burghs nautres 
villes" (cap. viii.). 

7 " Rot. Parl." iii. 244, No. 7. In this Parliament the lords, both 
spiritual and temporal, claimed it as their privilege that all cases touch- 



MAGNA CARTA AND COMMON LAW 135 

But the "special law " found most often in contrast 
with "ley commune" is the "consuetude," less fre- 
quently the "lex," of some particular region or 
district, which differs in its provisions from the "lex et 
consuetude regni". 1 

In 2 Edward II it was argued that a manor which 
formed a part of the King's ancient demesne was " tiel 
lieu qe n'est pas a la commune ley ", 2 In a case in 1 307 
certain tenements were declared to be devisable " solom 
la coustume de Everwyk " (York). 3 

Cases of the law of Kent are numerous. For 
example it was said in the Common Pleas in 20 
Edward I that certain tenements are not transferred 
from the common law to a special law ("changez 
hors de la commune ley en la Especial ley ") unless 
the partibility of the tenement could be proved Here 
the " special law " is a customary one, " le usage du 
pays ".* Wales and the Marches naturally give us 
many examples in the Middle Ages, particularly before 
the enactment of " Statutum Walliae ". For tene- 
ments in Wales and the Marches article fifty-six of the 
Great Charter of John guarantees to Welshmen and 

ing them " serroient demesnez, ajuggez, et discus par le cours de Parle- 
ment, et nemye par la Loy Civile, ne par la Commune Ley de la Terre, 
usez en aut res plus bas Courtes du Roialme". See also ibid. iii. 
236. 

1 Much material is found in various volumes of the Selden Society 
Publications, such, for example, as the volumes edited by Miss Bate- 
son on " Borough Customs ". Many local peculiarities in the towns 
affecting tenure have been collected in Hemmeon's " Burgage Tenure 
in Mediaeval England" ("Harvard Historical Studies," no. xx.). 

2 "Year Book" 2 & 3 Edw. II (Selden Society), p. 60. 
*Ibid. 33-35 Edw. I (Rolls Series), 457. 

4 Ibid. 20 & 21 Edw. (Rolls Series), pp. 327, 329. See also //</. 
33-35 Edw. I (Rolls Rolls), p. 351 ; also the so-called Statute de 
Praerogativa Regis (" Statutes of the Realm," i. 227) cap. xviii. See 
further, Somner, Robinson, or Sandys on Gavelkind. 



136 MAGNA CARTA AND COMMON LAW 

Marchers trial by peers " secundum legem Walliae " 
and "secundum legem Marchiae " respectively. 1 

In 25 Henry III a Welsh litigant pleads "quod 
nescit placitare secundum consuetudinem Anglie " and 
obtains a continuance "ad deliberandum ". 2 In 1281 
Edward promised Llewelyn that the laws of Wales 
and the Marches should not be disturbed, and informed 
him that the judges had been so instructed. 3 The 
" Statutum Walliae " itself, 4 while asserting Edward's 
right to declare, interpret, increase, and take away 
from these particular laws, especially in pleas of the 
crown, expressly excepts the law of succession to 
lands, contracts, procedure, etc., which are to remain 
as they were, " quia aliter usitatum est in Wallia quam 
in Anglia . . . et a temporecujus non extitit memoria ". 
In a case arising upon a disseisin in 19 Edward I, the 
defendant answers " quod tenementa non sunt in 
comitatu [Hereford] sed sunt in Marchia Wallie et 
debent in judicium deduci secundum legem Marchie et 
non per legem Anglie juxta statutum de Ronemede. 
Et quod non sunt in comitatu et ideo non deberent 
tractari per legem communem." The point was con- 
ceded. 5 Two years later Richard Fitz Alan declares 
he is a baron of Wales, " ubi est consuetude approbata," 
that the barons should submit their disputes to the 
arbitration of a friend of both parties. 6 In 1321 a 
number of persons in Wales petition the Chancellor 
to issue a writ to the Justice of North Wales to do 
justice "secundum legem et consuetudinem parcium 
illarum". 7 The law of the Scottish March, of course, 
was on the same general basis. In 1249 a commission 

Stubbs " Select Charters" (ninth edition), p. 300. 
2 " Abbreviatio Placitorum" (Record Commission), p. 108. 
3 Rymer, "Foedera" (Record Commission), vol. i. part II, 593. 
4 1 2 Edw. I 5 " Plac. Abb. " p. 286. 6 Ibid. p. 23 1 . 

7 " Rot. Parl. " i. 397, no. 59. 



MAGNA CARTA AND COMMON LAW 137 

consisting of twelve English and twelve Scottish 
knights were sworn to the observance of the " Leges 
Marchiarum "^ 

It seems clear, then, that common law is the " lex et 
consuetude regni Angliae, usitae et approbatae, com- 
muni utilitati convenientes " ; and that the basis of 
'" consuetude," as of " lex," is that it is approved, if 
not by express enactment, " more utentium ". This 
law is "common" because it is "jus regni Angliae," 
enforced and observed " de consensu magnatum et 
reipublicae communi sponsione ". Special custom is 
such as in like manner "observatur in partibus " and, 
it might be added, by certain classes or estates of the 
people " ubi fuerit more utentium approbata, et vicem 
legis obtinet " ; and special " leges " are those expressly 
assented to by the particular persons so bound by 
them. So we return to Coke's dictum that the com- 
mon law is " the law common to all ". 2 

If our difficulties ended here, it would seem rather 
unnecessary to labour a point so apparently obvious at 
such length as I have done. But Magna Carta was 
not only common law : it was also enactment, and 
constantly referred to as such. In order to understand 
its real significance, we must first examine, the larger 
question of the relation of enactment in general to the 
'" ley commune "; and to make this difficult question 
as clear as possible it seemed necessary as a prelim- 
inary to restate much that is obvious in connection 
with the common law itself. 

The next problem that meets us, then, is the relation 
of enactment to the law, particularly the common law, 
in mediaeval England, and this is a problem of great 
difficulty. 

As indicated above, the names of enactments of law 
for the realm were variable until they became stereo- 
Nicholson, "Leges Marchiarum," p. i et seq. 2 Ante, pp. 124-5. 



138 MAGNA CARTA AND COMMON LAW 

typed by the general acceptance of Parliament's 
enacting power. The author of the " Leges Henrici," 
speaking probably of Henry I's famous writ for the 
holding of the shire and hundred courts, says the 
practice, founded in ancient custom, had lately been- 
confirmed by a record "vera nuper est recordacione 
firmatum ". l The Constitutions of Clarendon are 
spoken of in the preamble to the document as " ista re- 
cordatio vel recognitio cujusdam partis consuetudinum 
et libertatum et dignitatum " of the King's predeces- 
sors. 2 Similarly the Assize of Clarendon is termed 
" haec assisa," 3 as is also the Assize of the Forest in- 
1 184.* John's Charter of Liberties itself is called " this 
present charter of ours ". 5 Bracton speaks, as we have 
seen, of the Statute of Merton as " nova constitutio," ' 
and elsewhere refers to a change in the law of dower 
made by it as brought about "nova superveniente 
gratia et provisione ". 7 In a case in 43 Henry III one of 
its sections was referred to as " Provisio de Merton".^ 
" The Edictum de Kenilworth ' is well known, and 
it was so called by contemporaries. 9 The Statute of 
Winchester is cited by the author of the " Mirror of 
Justices " as " la constitucion de Wincestre ". 10 In the 
reign of Henry III the word " statute " begins to be 
prominent ; but at first hardly in any technical sense 
and alternative with other terms. For example, in 39* 
Henry III the statement is made that a rule in "con- 
silio apud Merton provisum fuit et statutum," con- 
cerning the procedure on a writ of right " post illarn 

1 Liebermann, " Gesetze der Angelsachsen," i. 553. 
2 Stubbs, "Select Charters" (ninth edition), p. 163. 
*Ibid. p. 173. *Ibid. p. 186. 

5 Ibid. p. 292. * Ante, p. 132. 

7 Folio, 96. See also Bracton's " Note Book," i. 89. 

8 " Plac. Abb. " pp. 146-7. 9 Ibid. p. 187. 

10 Selden Society, vol. vii. 48. See also ibid. p. 28 ; "Plac. Abb. " 
p. 171. 



MAGNA CARTA AND COMMON LAW 139 

constitucionem V So in 52 Henry III mention is made 
of the pardon for transgressors in the time of the 
recent war, "occasione provisionum seu statutorum 
Exoniae non observatorum ". 2 

By the time of Edward I, however, it is evident that 
"statute" is becoming a technical term, and the other 
names cease to be applied to the same enactments. 
So the author of the " Mirror " in the third chapter of 
his first book " Des premiers constituciouns " tells 
us that Alfred ordained " pur usage perpetuele " that 
his nobles should assemble at least twice a year " pur 
parlementer sur le guiement de people Dieu. Par 
cele estatut," he says, divers ordinances were made in 
times subsequent. 3 " The Statutum de Marleberge " is 
referred to in pleas of the fifth and sixth years of the 
reign. 4 In Michaelmas Term, 13 & 14 Edw. I, judg- 
ment was given under a rule " quod constitutum fuit 
per Regem per secunda statuta Westmonasteriensia ". & 

It is unnecessary to continue further a list which 
grows rapidly longer after this date. Statute has 
now become the usual word for a certain kind of 
enactments of Parliament, and it is sometimes applied 
to acts, such as the one known as " De Asportatis 
Religiosorum," which are known to us only in forms 
not usual in statutes, some of them being found only 
in the form of writs. 6 The uncertainty of some of 
these so-called statutes may be due to a looseness in 
the application of the term which disappeared later, 

1 " Plac. Abb." p. 144. *Ibid. p. 168. 

3 Selden Society, vol. vii. 8. 4 " Plac. Abb." p. 268. 

5 Ibid. p. 209. 

6 " De Asportatis Religiosorum" is referred to as " statutum " in 16 
Edw. II. " Plac. Abb." p. 341. Examples in writ form are "Circum- 
specte Agatis, De Finibus Levatis," etc. These and a number of 
others are in Latin, the language of royal writs, instead of French, 
which was becoming the usual medium of parliamentary enactment at 
this time. 



i 4 o MAGNA CART A AND COMMON LAW 

when the word invariably conveyed one definite and 
technical meaning. " Statutum " seems to be a popu- 
lar rather than a technical term before the reign of 
Edward I, and it is possible that the non-technical em- 
ployment of it may have survived longer in isolated 
cases to the confusion of the modern historian. 

Our real difficulty arises with the question, what 
was the real nature of these " statuta " after the mean- 
ing of the word had been fixed, and how did they 
differ, if at all, from the law that preceded them, and 
from enactments which were not termed statutes ? 

The subject of the relation of enactment to the law 
which precedes, as that relation was understood in the 
later Middle Ages, is a subject that has received a good 
deal of attention in recent years. We have passed 
beyond the na'ive view that men of the Middle Ages 
must have understood that relation just as we under- 
stand it to-day. We are trying to discover what the 
men of that time really thought about it. For ex- 
ample, Mr. Lapsley's view that the well-known de- 
claration of Parliament in 1322, seeming to require the 
participation of all the estates of the realm in binding 
legislation, applied merely to such constitutional ar- 
rangements as had been effected by the ordinances of 
131 1 j 1 or Prof. Merriman's interpretation of Parlia- 
ment's legislative functions as the repealing rather 
than the enacting of law. 2 

As an alternative interpretation I submit an expla- 
nation, which might be summarized as follows : 

First. Enactments of substantive law in England in 

1U English Historical Review," no. xxviii. p. 118 et seq. This view 
seems also to be accepted by Prof. Tout. The " Place of Edward 1 1 
in English History," pp. 150-1. 

2 " Control by National Assemblies of the Repeal of Legislation in 
the Later Middle Ages," "Melanges d'Histoire offerts a M. Charles 
Be'mont " (1913), p. 437 et seq. 



MAGNA CARTA AND COMMON LAW 141 

the later Middle Ages were made for the general pur- 
pose of affirming the law already approved or of 
removing abuses which hindered its due execution 
" pur surement garder les Loies ove due execution 
et hastif remedie pur abusion de la Loye en usurpa- 
tion". 1 

Such affirmance implied frequent interpretation, 
the supplying of additional penalties to secure proper 
execution, and even supplemental enactments for the 
same purpose. This eventually led to changes in the 
law itself, but such changes came gradually and in the 
main only incidentally, and were not the main pur- 
pose of enactment. Repeal of the laws used and ap- 
proved is in the beginning not thought of. It comes 
very gradually, and in the guise of the removal of pro- 
visions which have wrongfully interpreted or added to 
the old law and tended to the introduction of abuses 
rather than the removal of them. The substance of 
the old law itself is in theory not repealable, at least 
in early times. When statutes are repealed the oft- 
repeated reason is that they are against the law of the 
land or prerogative. Repeal is strictly in the begin- 
ning, nothing more than a remedy " pur abusion de la 
Loye en usurpation ". Occasionally, in times of dis- 
order, whole Parliaments were repealed in the four- 
teenth and fifteenth centuries, but the reason alleged 
is usually that their summons is irregular or their acts 
unlawful. It is only at a comparatively late period 
that the repeal of statutes is openly avowed as one of 
the purposes of Parliament ; even then such a power 
is hardly considered as reaching the central principles 
of the common law. On the contrary, an examination 
of parliamentary rolls of the fourteenth and fifteenth 
centuries will show that the first business of a Parlia- 

1 " Pronunciatio " of the Parliament of 13 Henry IV (1411), "Rot. 
Parl." iii. 647. 



1 42 MAGNA CARTA AND COMMON LAW 

ment is the re-enactment or affirmance of the whole 
body of the fundamental law, including the statutes 
of the King's predecessors. This is nearly always 
stated among the purposes of the Parliament in the 
" Pronunciations, " and it is almost invariably prayed 
for first among the petitions of the Commons. It 
would not be beyond the truth to say that in this 
period, Parliament was, in its "legislative" capacity, 
above anything else, an affirming body, for such 
affirmations en bloc are almost invariable. 1 It is 
only in the latter part of this period that the Com- 
mons in their petition for the affirmance of preceding 
enactments begin to add the significant phrase, " et 
nient repellez ". 2 There is a remarkable, and possibly 
not accidental, similarity between these repeated 
affirmations at the opening of each Parliament and the 
earlier proclamations of the King's peace, at the begin- 
ning of each reign. 

Second. Participation in the enactment of such laws 
is based on the theory that the binding enactment of 
a law can be made only by those whom it touches. 
It must be a law " approbata utentium," to use 
Bracton's phrase. 3 If an enactment is to bind the 
clergy, the clergy must assent ; to one binding the 
baronage, the barons must assent ; a provision affect- 
ing merchants only is binding on account of their 
consent alone ; and the law of particular districts is 
recognized as valid "more approbata utentium". But 
likewise, " what touches all should be approved by 

1 See " Rot. Parl." iv. 130, no. 10. 

2 For repeal, see "Rot. Parl." iii. 352 A; ibid. pp. 425 A-B ; 
426 A, 442 A ; stat. i. Hen. IV, cap. iii. ; stat. ii. Hen. IV, cap. xiii. ; 

'Rot. Parl." v. 374 A-B; stat. 39 Hen. VI, cap. i. ; "Rot. Parl." 
vi. 191 A. See also "4 Inst." p. 52. 

3 Ante, p. 126, note 5. 



MAGNA CARTA AND COMMON LAW 143 

tf//". 1 And what touches all is the law common to 
all the " lex communis, lex terrae, lex regni ". 

On this basis of consent Glanvill had tried to fit 
feudal conditions into Roman terms, by saying that 
the people had enacted a law that had been "ap- 
proved " by immemorial custom ; much in the same 
way that Roman lawyers, ages before him, had inter- 
preted the " uti legassit " of the Twelve Tables in the 
development of the law of testamentary succession. 
If this were true, it would not be absurd to assimil- 
ate English custom with Roman " lex ". It certainly 
was observed " pro lege ". All this is clear enough 
for local and particular customs. But what of the 
common law ? How can it really be said to be en- 
acted, affirmed, and " approbata utentium omnium"? 

For much of the thirteenth century the baronage, 
lay and ecclesiastical, made good their claim that they 
-alone were the " populus " ; that " all " included none 
beyond themselves. " Populus " is frequently used in 
that sense at that time, and their assent seems to have 
been considered the assent of the realm. But by the 
fourteenth century this was changed. Other com- 
munes besides theirs were making themselves felt in 

1 This famous sentence appeared in the writs of summons to the 
clergy for the model Parliament of 1295 (" Parl. Writs," vol. i. p. 30). 
The writs begin as follows : " Sicut lex justissima, provida circumspect- 
ione sacrorum principum stabilita, hortatur et statuit ut quod omnes 
rtangit ab omnibus approbetur, sic et nimis evidenter ut communibus 
periculis per remedia provisa communiter obvietur". The " lex " here 
'.referred to is probably from Justinian's "Code," 5, 59, 5, where 
nothing of a political character is referred to, but only the common 
action of several " co-tutores " appointed under a will or otherwise. 
The original words are, " ut, quod omnes similiter tangit, ab omnibus 
comprobetur ". It is interesting to note that in the supplementary title 
""De Regula Juris" at the end of the "Sext," published three years 
after Edward's writs, in 1298, Boniface the Eighth includes this maxim 
as regula xxix., " Quod omnes tangit, debet ab omnibus approbari ". 



144 MAGNA CARTA AND COMMON LAW 

the national councils, the " communitas bacheleriae 
Angliae" 1 and the communities of the towns, who 
considered themselves a part of the " communitas 
Angliae" 2 to which the "lex communis " applied. It 
is a striking fact that Edward's principle that what 
touches all should be approved by all was carried no 
further than those communities until the Reform Bills 
of the nineteenth century. Those had a right to 
participate in the enactment of common law, to whom 
common law applied, and by the fourteenth century 
the communes of the counties and the towns were 
able successfully to vindicate in Parliament their 
claim to be a part of the " populus " to which that 
law and all provisions affirming it were common. 

It is clear that such a principle could not be en- 
forced, and could indeed hardly arise, before the 
composition of Parliament was settled on the basis 
which it retained until the legislation of the nine- 
teenth century. Naturally, while that composition 
was still unsettled this principle was doubtful. Even 
if a law must be " utentium approbata," how could 
the whole " communitas Angliae " consent in Parlia- 
ment? At first, apparently, while the composition 
of Parliament fluctuated, there was doubt as to the 
validity of an enactment until it had been proclaimed 
locally throughout the realm. Only gradually did 
the theory arise that the whole of England was con- 
structively in Parliament ; that they were all assumed 
to be there consenting to what Parliament did. The 
theory of representation was complete in the four- 
teenth century. The fact that much of the represent- 
ation was only " virtual " need give us little concern, 
when we remember that this remained equally true 

1 " Annals of Burton," p. 471, quoted in Stubbs. " Select Charters " 
(ninth edition), p. 331. 



MAGNA CART A AND COMMON LAW 145 

for five hundred years after, and that to a certain 
extent it is true to-day. This theory then did not 
necessarily give to the estates in Parliament alone 
the right to legislate for particular persons, classes, 
or places. That might be done by the King by charter 
or otherwise with the assent of those only who were 
affected. Neither did it require the assent of " all " the 
estates in Parliament unless that assent was given to 
some enactment which touched them all. The one thing 
that obviously did touch them all was an enactment 
affecting the "lex communis ". To that the assent of 
"all " was necessary. 

Third. This theory of the participation of the estates 
in enactment, if true, will in part explain the nature of 
the enactments of Parliament themselves. Statutes are 
enactments of law " perpetuelment a durer". If this 
law happens to be "common," then all must assent. 
But the real distinction between statute and ordinance, 
which gave Coke so much trouble, does not arise from 
the difference between enactments of common law and 
other enactments ; nor from the fact that the King, 
Lords, and Commons must all unite upon a statute, 
while this is not necessary for an ordinance, as Coke 
thought. The real difference is that a statute, in its 
original meaning, is an affirmance of law. If it is in 
affirmance of the common law, it shares the nature of 
the law it interprets, and I have tried to show that one 
of the characteristics of that common law is its per- 
manence and its supremacy in the realm. Like the law 
it authoritatively interprets, a statute in affirmance of 
the common law is permanent also ; it has become in 
a sense a part of that law. Statutes affecting law 
other than common are for a long time less numerous 
and less important, and the name statute was probably 
applied to them later than to acts for the whole realm 
and on the analogy of the latter. But the essential 

10 



146 MAGNA CARTA AND COMMON LAW 

characteristic in all cases seems to be the purpose on 
the part of those enacting that their work shall endure 
for all future time ; a characteristic that parliamentary 
statutes were conceived to have, because their origin 
was traceable to the affirmance of a law that was per- 
manent, extending "a tempore cujus non extitit memo- 
ria ". This theory is weakened somewhat in the fifteenth 
century, but it is safe to say that this is the general 
conception of parliamentary " legislation " from the 
thirteenth century on. Statutes are enactments " per- 
petuelment a durer". It is their permanence that 
makes them "statutes," and necessitates somewhat 
greater formality in their promulgation than is neces- 
sary in acts of a character less permanent and there- 
fore less important. 

Ordinances, on the other hand, are temporary 
provisions, which are not considered to affect the 
permanent law unless they are re-enacted " in form of 
a statute," as they often were. The essence of a 
statute, then, is permanence, that of an ordinance 
is its temporary character. Statutes in affirmance of 
the common law had to be assented to by all ; so had 
ordinances if they touched all the estates represented 
in Parliament. Both statutes and ordinances are found 
that touch fewer classes. When they are, only those 
classes so affected need assent in order to make them 
binding law for them. These distinctions, are, like 
the conception of affirmance, much clearer in the four- 
teenth century, than in the fifteenth ; when many of the 
older ideas of Parliament's functions are becoming 
blurred, and precedents are beginning to form which 
are later to furnish the basis for the modern theory of 
legislative sovereignty. 

These are the three chief points which the con- 
temporary records seem to me to indicate in regard 
to the nature of enactment. Before taking up their 



MAGNA CARTA AND COMMON LAW 147 

bearing on the history and nature of Magna Carta, I 
shall set forth a few of these records, under the three 
headings mentioned above ; and first, under that of 

I. THE AFFIRMANCE OF COMMON LAW. 
In this connection, nothing is more significant than 
the words of the preambles of Edward I's two remark- 
able Statutes of Westminster, which, more than any- 
thing else he did, justify the application to him of the 
title the English Justinian. 1 One statement in the 
preamble to the second statute is particularly in- 
teresting. It recites the fact that at Gloucester, in 
the sixth year of the reign, certain statutes had been 
passed, but that certain cases remained undetermined 
" quidam casus in quibus lex deficiebat remanserunt 
non determinati, Quaedam enim ad reprimendum op- 
pressionem populi remanserunt statuenda ". Hence 
the present statute. Commenting on this, the author of 
the " Mirror " says : " What is said in the second Statute 
of Westminster as to the failure of law in divers cases 
is open to objection, because for all trespasses there is 
law ordained though it may be disused, forgotten, or 
perverted by those who know it not. And the first 
three articles are no statutes, but merely revoke the 

1 The enactments of the Statute of Westminster First (3 Edw. I, 
1275) are sa id to be made because the King desired "to redress the 
state of the realm in such things as required amendment, for the 
common profit of holy Church and of the realm ; and because the state 
of the holy Church had been evil kept, and the prelates and religious 
persons of the land grieved many ways and the people otherwise in- 
treated than they ought to be, and the peace less kept and the laws 
used and the offenders less punished than they ought to be, by reason 
whereof the people of the land feared less to offend ". 

The Second (13 Edw. I, stat. i. 1285) is in some respects more ex- 
plicit, as is also the Statute of Gloucester (6 Edw. I, 1278), and many 
others of this reign, so remarkable in this respect. Edward's pre- 
ambles are much more instructive than later, when parliamentary 
enactment had become a matter of course, prefaced by stereotyped 
phrases or by none at all. 



148 MAGNA CARTA AND COMMON LAW 

errors of negligent judges." The first of these three 
articles is the important enactment " De Donis Con- 
ditionalibus," which certainly does do nothing but 
restore the law as it was before judicial decision 
modified it. In his biting comments on this and the 
other important enactments of the early part of Ed- 
ward's reign, the same author says, for example : 
one " is no statute, but the revocation of an error " ; 
another " affirms, rather than repeals an error " ; 
another, though it is " but common and ancient 
law," gives insufficient remedy; another "is merely 
the revocation to right law of a prevailing error"; 
another " is a novelty injurious to the lords of fees " ; 
another " seems rather error than law " ; another, " no 
statute, but lawless will and pleasure " ; another " is 
founded upon no right"; another is "not founded on 
law " ; while others " are just humbug (truffe) for they 
are not regarded ". He also refers to Alfred's laws as 
a " statute " under which " divers ordinances were 
made by divers kings down to the present time, which 
ordinances are disused by those who are less wise and 
because they are not put in writing and published in 
definite terms". 1 

The form of the coronation oath, which remained 
with but few modifications until the accession of 
William and Mary, was probably used first at the 
coronation of Edward II. It was certainly used at the 
coronation of Henry IV. 2 In it there is one promise 
that was not demanded before " Concedis justas Leges 
et Consuetudines esse teneridas, et promittis per te eas 
esse protegendas, et ad honorem Dei corroborandas 
quas vulgus elegerit, secundum vires tuas. Re- 
spondebit, Concede et promitto ". This is the oath so 

1 Selden Society, vol. vii. 1 89, 8. 

2 "Rot. Parl." iii. 417 B. See also Legge, "English Coronation 
Records," pp. xxvii, 88. 



MAGNA CARTA AND COMMON LAW 149 

much referred to by the King and by Parliament in 
the fourteenth and fifteenth centuries, and its impor- 
tance is very great in the histor}^ of enactment. The 
celebrated ordinances of 1312 provide that all the 
statutes made "en amendement de la lei et au profit du 
poeple" by the King's ancestors, "soient gardez et 
maintenuz si avaut come estre devient par lei et reson," 
provided they are not contrary to the Great Charter, 
the Charter of the Forest, or the present ordinances ; 
and that if any statute were made "countre la fourme 
susdite, soit tenuz pur nul et tout outrement defait ".* 
Two entries on the Parliament Roll for 1343 during 
the struggle of the King and Parliament are in- 
structive on this point. It was agreed that the statute 
of two years before (15 Edw. Ill) "soit de tut repellez 
et anientez et perde noun d'Estatut, come eel q'est pre- 
judiciel et contraire a Leys et Usages du Roialme et 
as Droitz et Prerogatives de nostre Seigneur le Roi ". 
But as there are certain articles embraced in the said 
statute which "sont resonables et acordantz a Lei et a 
Reson," the King and his Council agree that these 
articles, together with others agreed upon in the 
present Parliament, " soit fait Estatut de novel " on the 
advice of the " Justicies et autres Sages, et tenuz a touz 
jours ". 2 In the same Parliament the Commons pray 
that the statutes concerning grants be observed. The 
King replies that since he perceived that " le dit Estatut 
feust centre son serment et en blemissement de sa 
Corone et de sa Roialte, et contre la Ley de la terre 
en plusours pointz," it should be repealed. But he 
wishes that the articles of the said statute be examined 
and that such as are found " honurables et profitables 
pur le Roi et son poeple soient ore faitz en novel 
Estatut, et gardez desore". 3 

1 " Rot. Parl." i. 285 A. * Ibid. ii. 139, no. 23. 

* Ibid. 139-40, no. 27. 



150 MAGNA CARTA AND COMMON LAW 

In 1347 the Commons petitioned that a plaintiff 
recovering damages on a writ of trespass should have 
execution on the defendant's lands, but were answered 
by the King that this could not be done " sanz Estatut," 
upon which he desires the advice of his Council, and 
will do what seems best "pur son poeple 'V In 1348 
the Commons prayed that the King would give no re- 
sponse changing their petitions as a result of any 
" Bill " presented in Parliament " in the name of the 
Commons ". By advice of the Prelates and " Grantz " 
the King replied to these petitions " touchantes la Lei 
de la terre, Qe le Leies eues et usees en temps passez, 
ne le Process d'icelle usez cea en arere, ne se purront 
changer saunz ent faire novel Estatut. A queu chose 
faire le Roi ne poait adonques, ne unquore poet 
entendre par certeines causes. Mes a plust tost q'il 
purra entendre," he with his Council will ordain touch- 
ing those articles and others "touchantz Amendement 
de Lei" according to reason and equity, for "all his 
lieges and subjects and for each of them ". 2 A very 
important entry occurs in the roll for 25 Edward III,, 
where the Parliament interprets the law of succession. 
11 Nostre dit Seigneur le Roi veuilliant qe totes doutes 
et aweres fuissent oustes, et la Lei en ceo cas declare 
et mise en certeine, fist charger les Prelatz, Countes, 
Barons, et autres Sages de son Conseil, assemblez a 
ceo Parlement, a faire deliberation sur eel point. 
Lesqueux d'un assent ont dit, Qe le Lei de la Corone 
d' Engleterre ' est, et ad este touz jours tiele. . . . 
Laquele Lei nostre Seignur le Roi, les ditz Prelatz, 
Countes, Barons, et autres Grantz, et tote la Com- 
mune, assemblez el [en] dit Parlement, approevent et 
afferment pur touz jours ". 3 

1 " Rot. Parl." ii. p. 166, no. 13. ' J Ibid. p. 203, no. 30. 

3 Ibid. 231, no. 41. See also stat. 25 Edw. Ill, stat. i. In this 
connection the proceedings in Parliament leading up to the Statute of 



MAGNA CARTA AND COMMON LAW 151 

For much of the fourteenth . and fifteenth centuries 
the Parliaments are regularly opened by a " Pronun- 
ciatio " ; such as the one which states, among the 
chief reasons for the, summons, " qe 1'Estatutz faitz cea 
en arer pur amendement des Leies de la terre et du 
people ne sont pas gardez ne usez en lour effect " ; 1 
another, which urges that the good laws and customs 
be guarded and preserved and violators punished; 2 
another asking the Commons for information " coment 
ses Leyes de sa Terre et 1'Estatutz sont gardez et 
executez"; 3 or one which announces that it is the 
will of the King that the laws "serroient tenuz et 
gardez," and promises that by letters under the secret 
seal or privy seal or otherwise, "la Commune Loie ne 
serroit destourbez, ne le poeple en lour pursuyte 
aucunement delaiez ". 4 For the same period the pe- 
titions of the Commons usually begin with a prayer, 
such as the one in 1379, which asks, among other 
things, "that the common law of the land be held as 
used in the time of the King's ancestors ". 5 

As seen in many of the instances given above, af- 
firmance and interpretation often go together in re-en- 
actments of the law, as well as supplementary provisions 
of great importance. But Bracton was expressing the 
conception of his time, in distinguishing what adds to 
the law from what is contrary to it : " Non destruitur 
quod in melius commutatur ". 6 So, he says, a writ is 

Provisors are also interesting. They are found in the same words, in 
both the Parliament Roll and the Statute Roll (" Rot. Parl." ii. 232-3, 
stat. 25 Edw. Ill, stat. iv.). 

^Ibid. " Rot. Parl." ii. 237 A. " 3 Rich. II, ibid. iii. 71, no. 3. 

3 13 Rich. II, ibid. 257, no. i. 4 5 Hen. IV, ibid. p. 529 A. 

''Ibid, p, 80, no. i ; p. 321, no. 44, etc. 

"Folio i B. Mere interpretation, in the fourteenth century, be- 
longed to the Council. When a solemn affirmance by " novel Estatut" 
was necessary in matters of common law, this could only be done in a 
Parliament of which the Commons were a part. 



152 MAGNA CARTA AND COMMON LAW 

quashed if " contra jus et regni consuetudinem et 
maxime contra chartam libertatis. ... Si autem 
praeter jus fuerit impetratum, dum tamen fuit rationi 
consonum et non juri contrarium, erit sustinendum, 
dum tamen a rege concessum et a consilio suo appro- 
batum." The general business of a Parliament was 
well stated in the " Pronunciatio " of the Parliament of 
38 Edward III 2 to be" les Lois, Custumes, Estatutz, et 
Ordinances en son temps, et en temps de ses Aunces- 
tres faites, meintenir, et si nuls soient que busoignent 
declaration, ajoustement, ou artement, solonc le cas, 
temps, et necessite, ensement de lour bon avis et 
conseil declarer, ajouster, retrere, et amender". The 
great importance of affirmance in enactment is also il- 
lustrated in the limits which were set to the King's 
dispensing power. The one kind of statute with which 
he might not dispense, was the kind passed in affir- 
mance of the law. 3 

II. PARTICIPATION. 

It would be rash to say that the principle under- 
lying the participation of the various classes "re- 
presented" in the English Parliament came entirely 
from feudalism. There are precedents in Rome, 
and precedents in England and on the Continent 
after the fall of the Roman Empire, of quite another 
kind. But these came to the men of the later Middle 
Ages through a feudal channel. To put it in 

1 Folio 414 B. 

2 " Rot. Parl." ii. 283 A. See also, ibid. ii. 341, no. 119 ; ibid. iii. 
p. 43, no. 46 ; p. 97 B. 

3 On this, it is unnecessary to do more than refer to a few of the 
chief authorities. E.g. Broom, " Constitutional Law " (second edition), 
p. 492 et seq. ; Anson, " Law and Custom of the Constitution," vol. i. 
(fourth edition), p. 326 et seq.; Maitland, " Constitutional History of 
England," pp. 302-6; "Thomas v. Sorrell, Vaughan's Reports," p. 
330; " Godden v. Hales," " n St. Tr." 1165, with the various con- 
temporary tracts appended to the report; W. Petyt, "Jus Parlia- 
mentarium " ; Luders's " Tracts," Tract V. 



MAGNA CARTA AND COMMON LAW 153 

another way, feudalism is the stage through which 
English institutions had passed and were still passing 
at the time when the common law was forming and 
the functions of Parliament developing, and the parti- 
cipation of the "estates" in "legislation," can no more 
be understood without taking this into account than 
can the existence of these estates themselves. Behind 
them all lies the "Curia " of the lord in which the laws 
of the fief are " found " and applied by all the tenants 
who owe suit there and have the corresponding right 
to be tried only by the "pares curtis ". The Court of 
the King was the " Curia Regis," and the laws 
"found" there by its suitors were the "lex terrae". 
But while tenants-in-chief alone might " find " those 
laws, they had not made them. For a long time the 
barons were able to make good their claim that they 
were the " populus," and through that fiction might 
alone interpret and enforce the law, but this fiction 
never destroyed the underlying theory that law was 
approved "consensu omnium utentium," and just so 
soon as other classes became strong enough they as- 
serted their right to assent to enactments affecting 
themselves. Precedents might be found as early as 
the preamble to Alfred's laws and the indefinite 
""right" of the people to ratify the "election" of a 
King, as it appears in the Norman period, 1 a " right " 
to be traced back no doubt to much the same origin as 
the similar procedure in the choice of the Popes before 
the "constitution" of the Papacy was definitely 
formed ; but it seems best to go back no further than 
the thirteenth century. A beginning might be made 
with the clear statement of Bracton who mentions the 
"" leges Anglicanae et consuetudines . . . quae quidem 

1 See, for example, the brief but excellent reference to this as a pre- 
cedent for later consent in legislation, in Pike, " Constitutional History 
of the House of Lords," p. 310 et seq. 



154 MAGNA CARTA AND COMMON LAW 

cum fuerint approbatae consensu utentium, et sacra- 
mento regum confirmatae, mutari non poterunt nee 
destrui sine communi consensu et consilio eorum 
omnium, quorum consilio et consensu fuerunt promul- 
gatae "- 1 Enactment and interpretation by the King 
and his Curia are permissible without this " consilium 
omnium," since they do not destroy, but only improve 
the law. In " melius tamen converti possunt, etiam 
sine eorum consensu, quia non destruitur quod in 
melius commutatur ". So also things " nova et incon- 
sueta et quae prius usitata non fuerint in regno, si 
tamen similia evenerint, per simile judicentur. ... Si 
autem talia. nunquam prius evenerint, et obscurum et 
difficile sit eorum judicium, tune ponantur judicia in 
respectum usque ad magnum curiam, ut ibi per con- 
silium curiae terminentur ". When, however, any- 
thing is enacted, it is "communi consensu omnium,' 
in theory, even though not in fact. We know that the 
barons alone enacted what Bracton calls "quaedam 
constitutio quae dicitur constitutio de Merton," yet he 
says one of its articles " provisuum est et concessum ab 
omnibus"? The sentence of excommunication pro- 
nounced in 1253 against violators of Magna Carta, or 
the liberties of the Church, " vel antiquas regni consue- 
tudines approbatas," is followed by a ratification under 
the seal of the King and certain magnates, concluding 
with a warning, that if any additions are made to the 
document, " dominus Rex, et predict! magnates omnes, 
et communitas populi protestantur publice . . . quod 
in ea nunquam consenserunt nee consenciunt, set de 
piano eis contradicunt ". 3 It seems pertinent in this 
connection also to refer again to the form of the 
coronation oath, which seems to date from 1307, under 
which the King promised to hold, protect, and 

1 Folio i B. 2 Ibid. 227 A. 

3 Bemont, " Chartes des Libertes Anglaises," pp. 73-4. 



MAGNA CARTA AND COMMON LAW 155 

strengthen the just laws and customs "quas vulgus 
elegerit ".* The word "vulgus" was not used by 
accident nor "elegerit" either. The "consensus 
omnium " includes theirs, in theory at least, even 
though it be often merely the tacit assent to imme- 
morial custom. 

Participation in grants need not detain us. The 
word " consuetudines," customs, had in the Middle 
Ages, as it has now, a double meaning; and un- 
doubtedly it was the desire for a larger participation 
in grants rather than in enactments that led to the 
application by Edward I to the " Magnum Concilium " 
in larger measure than before of the old principle that 
what touches all should be approved by all. The 
vindication of the right of consent to grants was 
understood and is understood now. For participation 
in "legislation " more proof is needed, but fortunately 
it exists. 

For example, in 1364 the Rolls of Parliament refer 
to certain good purveyances and ordinances passed 
with assent of " Dues, Countes, Barons, Nobles et 
Communes . . . et touz autres qe la chose touche". 
Some of these are referred to later in the roll as 
' Estatutz ". 2 

In 1354 the Commons complain of the ordinance of 
the Staple lately passed in the Council at Westminster. 
They insist that such matters can be determined only 
in Parliament because they really concern the King 
and all his people. They declare that they have in- 
spected these provisions " et queles lour semblerent 
bones et profitables pur nostre Seigneur le Roi et tut 
son people, soient affermez en cest Parlement, et tenuz 
par Estatut a durer pur touz jours. A quelle priere 
le Roi et touz les Grantz s'acordent unement, issint 
totes foitz, qe si rien soit ajouster soit ajouste, ou qe 

1 Ante, p. 148. '- " Rot. Parl." ii. 284^-285, no. 9. 



156 MAGNA CARTA AND COMMON LAW 

rien soit a ouster soit ouste en Parlement, quele heure 
qe mestier en serra, et nemye en autre manere." l 

In 1363 the rolls say, " Et issint le Parlement con- 
tinue sur tretee de divers choses, touchantz si bien les 
Petitions baillez par les Communes et autres singulers 
persons come les Busoigues du Roy et son Roialme ". 2 

In 1371 the Commons recite the statute ordering 
" qe nul Justise par mandement de Grant ou Prive Seal 
ne lessera de faire commune Ley et Droit as parties " ; 
and pray that it be observed, and " qe par comandement 
du Roi, ne prier des gentz prives, n'autres, la Commune 
Ley ne soit delaie ne bestourne ". 3 

In 51 Edward III the Commons petition not to be 
bound by any statute or ordinance made without their 
consent, and that statutes made in Parliament be 
annulled only there, "et ceo de commune assent du 
Parlement ". They pray more especially that they be 
not bound by any statute or ordinance granted on 
petition of the clergy to which they have not con- 
sented. " Ne qe voz dites Communes ne soient obligez 
par nulles Constitutions q'ils sont pur lour avantage 
sanz assent de voz dites Communes, Car eux ne 
veullent estre obligez a null de voz Estatutz ne Or- 
denances faitz sanz lour assent ". The response is, 
"Soit ceste matire declares en especial"; probably 
because it might be a nice question whether the mat- 
ters objected to were not really things which touched 
only the clergy rather than " tut son people," and there- 
fore such as might rightly be determined, without the 
Common's assent. 4 

In the midst of the troubles of the year 1381 an 
interesting entry is found in the Rolls of Parliament. 
The Chancellor " en plein Parlement " asks the opinion 
"de toutz illeoques" on the repeal of the manumis- 

1 "Rot. Parl." ii. 257, no. 16. * Ibid. 280, nos. 38-40. 

3 Ibid. 308, no. 41. 4 Ibid. 368, nos. 44-6. 



MAGNA CARTA AND COMMON LAW 157 

sion recently granted to the serfs. To which the 
lords spiritual and temporal, the knights, citizens, and 
burghers, responded with one voice in favour of the 
repeal " Adjoustant, qe tiele Manumission ou Fran- 
chise des Neifs ne ne poast estre fait sanz lour Assent 
q'ont le greindre interesse ' '- 1 

Eight years later the Commons petition that neither 
the Chancellor nor the Council, after the dissolution 
of Parliament, should make any ordinance "encontre la 
commune Ley, ne les aunciens Custumes de la Terre, 
et Estatutz devant ces hures ordeinez, ou a ordeigner 
en cest present Parlement : einz courge la commune 
Ley a tout le poeple universel ". 2 

The proclamations for the publication of statutes 
or of Magna Carta, and the " pronunciationes " and 
petitions in Parliament also furnish considerable 
general evidence on this point. In all these the 
matters upon which the whole Parliament has acted 
are expressly stated to be articles " pur le commun 
profit du peuple e du reaume," as in the royal proclama- 
tion of the confirmation of Magna Carta in 1297;" or 
a grant "a soen poeple pur le pru de soen roiaume," in 
the " Articuli super Cartas " of 1300.* So a mandate to 
the Justice of Chester, of 1275, orders him to publish 
in Chester certain provisions and statutes enacted by 
the magnates "for the good of the realm and for the 
relief of the people ". 5 Such expressions are common 
later in the "pronunciations du Parlement," but they 
are not found after Edward II's reign in cases where 
the Commons have not assented. For example, in 
1351 there is mention made of "1'Estatutz faitz . . . 
pur amendement des Leies de la terre et du poeple " ; 6 

1 "Rot. Parl." iii. 100, no. 13. 2 Ibid. p. 266, no. 30. 

3 Bemont, " Chartes des Libertes Anglaises," p. 82. 4 Ibid. p. 99. 

5 "Calendar of Patent Rolls," 1272-1281, p. 104. 

6 "Rot. Parl." ii. 237 A. 



158 MAGNA CARTA AND COMMON LAW 

in 1378, of the good laws and customs of the realm ; l 
in 1397, "Loyes justes et honestes universelment, par 
queux si bien les grantes come les petitz deussent estre 
governez ". The King wishes to know if any of his 
subjects have been hindered in obtaining remedies " par 
la commune Ley, et sur ce estre conseillez par toutz 
les Estatz du Parlement, et ent faire bone et due remede 
en cest present Parlement ". 2 In 1414 the King desires 
the preservation of " les bones Leies de sa Terre " ; 
and also asks Parliament "pur faire autres Leies de 
novell, a Faise et profit de ses lieges ". 3 The language 
is somewhat different from what would have been 
thought of a century earlier, but the principle is the 
same. 

The petitions of the Commons, like the " Pronun- 
ciationes " in the King's name, seem to make this dis- 
tinction also. In 1341 the Commons pray for the ob- 
servance of Magna Carta and " des autres Ordinances 
e Statutz, faitz pur profit du commune poeple entend- 
ant les pointz de la dite Chartre, ensemblement od 
les autres perpetuelment a durer". 4 Again in 1368 
they petition for the maintenance of the charters " e 
touz les Estatuz faitz devant ces hures pur profit de 
la Commune"* The next year they ask that the sta- 
tutes be maintained, "si bien FEstatut de la Foreste, 
come touz autres Estatutz, lesqueux deivent suffire 
a bon Governement s'ils soient bien gardez ". 6 

Very important is the careful answer of the Arch- 
bishop of Canterbury in 1399 to the prayer of the 
Commons to be excused from taking part in the 
judgments of Parliament. 7 It is true, he says, as 

1 " Rot. Parl." iii. 32 A. 2 Ibid. p. 34?, A-B. 

3 Ibid. iv. 156. 4 Ibid. ii. 128, no. 9. 

5 Ibid. p. 295, no. 10. 6 Ibid. p. 300, no. 14. 

7 Ibid. iii. 427, no. 79. See also ibid. p. 243 A ; also the King's 
answer to the famous petition of 1414 in which he promises that no 



MAGNA CARTA AND COMMON LAW 159 

the Commons have set forth, that they need not take 
part in Parliament's actions "Sauve q'en Estatutz a 
faires, ou en Grantes e Subsides, ou tiels choses a 
faires pur commune profit du Eoialme, le Roy voet avoir 
especialment leur advis e assent ". 

This evidence of the necessity for the advice of the 
Commons on matters " pur commune profit " is sup- 
plemented by proof of the converse that matters 
which were clearly not of this character, which 
affected particular classes only needed no ratifica- 
tion by the Commons to make them binding law for 
those whom they did affect. 

So we find a regulation of the Exception of Neifty 
by "le Conseil en Parlement " in I347; 1 and an 
"Accord" in 1331 by which the lords agree, "qe nul 
Grant de terre " will aid any robber, but give aid to 
the justices in punishing them. 2 

In 51 Edward III to a request of the Commons 
for an ordinance regarding foreign merchants, the 
King answers that he and the magnates will consider 
and ordain what is best. 3 

Matters specially affecting the clergy are among the 
most valuable on this point. In 1389 the two arch- 
bishops made a protestation in full Parliament that 
they do not assent to any statute of that Parliament 
"" nunc noviter edito, nee antiquo pretenso innovate,'' 
which is in restriction of " Potestas Apostolica " or the 
liberties of the Church. 4 

In 1397 the prelates protest that they cannot assent 
to any enactment of the King or the temporal lords 
touching the rights of the Pope. There is no mention 
of the Commons. 5 The Commons had in fact petitioned 

enactment shall bind the Commons without their assent ("Rot. Parl." 
iv. 22, no. 22). 

1 Ibid. ii. 1 80 A-B. 2 Ibid. p. 62, no. 9. 

3 Ibid. 367, no. 35. 4 Ibid. iii. 264, no. 24. 

5 Ibid. p. 341, no. 22. 



160 MAGNA CARTA AND COMMON LAW 

that the King would, with the advice of such sages 
and worthies as he pleased, at the next Parliament 
ordain such changes in the Statute of Provisors as. 
seemed reasonable and profitable in their discretion. 1 
In the same year a committee of Parliament, consisting 
of lords and knights, but commissioned " par vertue e 
auctorite du Parlement, de 1'assent des Seigneurs 
Espirituels e Temporels," annulled the Duke of Here- 
ford's patent. 2 

In 1433 the Commons prayed for a modification of 
the Statute of the Staple of Calais, and were answered 
that it should be done as they desired, " Savant toutz 
foitz au Roy, poair et auctoritee de modifier mesme 
FEstatut quant luy plerra, par advys de son Counseil 
solonc ceo qe meulx luy semblera pur le profit du 
Roy, e du Roialme". 3 

III. VARIETIES OF PARLIAMENTARY ENACTMENT. 

Enactments of Parliament are referred to in con- 
temporary official records under various names : 
" provisiones, etablissements (stabilimenta), constitu- 
tiones, accords, awards, ordinationes, statuta," and a 
number of others. Most of the treatment of the 
points vital to this paper may be included, however, 
under the last two of these, and that treatment need 
not be very long, after the many excellent discussions 
of this subject from the seventeenth century to the 
present. 4 

1 " Rot. Parl." iii. p. 340, no. 21. 2 Ibid. 372, no. 87. 

3 Ibid. iv. 454, no. 63. See also ibid. p. 490, No. 19. 

4 See, among others, " 4 Inst. " 25 ; Prynne, " Irenarches Redivivus ; 
Animadversions on Coke's Fourth Institute," p. 13 ; Whitelocke,, 
" Notes upon the King's Writt," chaps, xc., xcviii., xcix. ; Ruffhead's 
Preface to his edition of the statutes ; Introduction by the Commis- 
sioners to the "Statutes of the Realm," section v. (also reprinted in 
Cooper's "Public Records," i. 163 et seq.}\ Hargrave and Butler's 
notes to "Coke on Littleton," p. 1596, note 292; Amos's notes to 



MAGNA CARTA AND COMMON LAW 161 

The treatises referred to above quote or cite most 
of the important precedents in the Rolls of Parliament, 1 
and it would therefore be useless to give here more 
than a few of these. 

In 1324 was passed the statute concerning the lands 
of the Templars, which was afterwards objected to as 
against law. The statute was made by the King and 
Magnates only, but it was declared to be " concordatum 
. . . provisum et statutum pro lege in hac parte 
perpetuo duratura ". z 

Two years later the King replied to a petition of 
the Commons, that certain ordinances should be viewed 
and examined " et les bones soient mis en Estatut, et 
les autres soient oustez ". 3 

The Statute of Purveyors, 4 passed by the King, 
Lords, and Commons, is followed by five additional 
articles which are to be in force without change until 
the next Parliament. Just following these articles 
there is a note on the Statute Roll " Et memorandum 
quod in parliamento predicto concordatum fuit quod 
articuli predicti non tenerentur pro Statute ". 

Probably the most conclusive entry in the Rolls of 
Parliament occurs in 1340, where a committee is 
chosen consisting of knights and burgesses as well as 
lords, who are instructed to look over the records of 
that Parliament from day to day and cause " mettre en 

Fortescue's " De Laudibus Legum Angliae," pp. 59-61; Gneist, 
" English Constitutional History " (English translation), ii. 22 et 
seg, -, Maitland, "Constitutional History," pp. 256-8; Hatschek, 
"Englisches Staatsrecht," i. 114; Anson, "Law and Custom of the 
Constitution," i. (fourth edition) 243-9. 

1 See the treatises above mentioned, among which the Introduction 
to the " Statutes of the Realm" is the most important. It cites and 
analyses most of the entries in the Rolls of Parliament important for this 
subject. 

2 17 Edw. II, stat. 3. 3 i Edw. Ill, "Rot. Parl," ii. 11, no. 3 
4 10 Edw. Ill, stat. 2. 

1 1 



162 MAGNA CARTA AND COMMON LAW 

Estatut les pointz et les articles qe sont perpetuels. 
Lequel Estatut nostre Seignur le Roi, par assent des 
touz en dit Parlement esteantz, comanda de engrosser 
et ensealer et ferment garder par tut le Roialme 
d'Engleterre. . . . Et sur les pointz et articles qe ne 
sont mye perpetuels, einz pur un temps, si ad nostre 
Seignur le Roi, par assent des Grantz et Communes, 
fait faire et ensealer ses Lettres Patentes. . . . M1 

In 15 Edward III an interesting case occurs. Ap- 
parently the previous petitions of Parliament had been 
assented to, but not authenticated as statutes by the 
Great Seal. Now, as a condition of the payment of 
an instalment of a previous grant, the demand is made 
that these be affirmed as granted by the King " C'est 
assavoir, les pointz a durer par estatut et les autres 
par Chartre ou Patent, et liverez as Chivalers des 
Counteez sauz rien paier." : The word ordinance does 
not occur. 

In 1344 the Commons pray that the "Provisions, 
Ordinances, and Accords " made in a previous Par- 
liament " soient affermez par Estatut perpetuelment a 
durer". 3 

In 1347 they petition that a provision already agreed 
on in Council without delay be made "selonc la 
fourme de 1'Estatut," and the King promises that 
that article and the points contained in it "soient 
tenuz et gardez en touz pointz, solonc la fourme 
d'Estatut ent fait ". 4 

The Statute of Provisors of i35o 5 cites Edward I's 
Statute of Carlisle" le quel Estatut tient touz jours 
sa force ". , 

A perfectly clear instance is found in 1354. William 
de Shareshull, the Chief Justice, announces among the 

1 "Rot. Parl." ii. 113, nos. 7, 8. * Ibid. p. 133, no. 61. 
* Ibid. 153, no. 33. * Ibid. p. i6;,no. 22. 

5 25 Edw. Ill, stat. 4. 



MAGNA CARTA AND COMMON LAW 163 

causes of the summons, the permanent fixing of the 
Staple. The Council had made certain provisions or 
" ordinances " which had been published throughout 
the realm, and that Council had included prelates, 
lords, justices, Serjeants, " and others of the Commune ". 
But now "pur ceo qe nostre Seignur le Roi, et les 
autres, si bien Grantz come Communes qi lors estoient 
au dit Conseil,- verroient qe la dite Estaple se tendroit 
et durroit perpetuelment es Roialme et terres avant ditz, 
si ad mesme nostre Seignur fait somondre son Parle- 
ment a cejour de Lunedy, aufyn qe les Ordinances de 
la dite Etaple soient recites en meisme le Parlement, 
et si rien soit a adjouster q'il soit ajouste, et soit a durer 
perpetuelment come Estatut en Parlement "- 1 

Another case, equally important, is found in 
i Richard II. 2 The Commons in that year prayed 
the King that the " petitions " of the recent Parlia- 
ment which were " pur profit de son poeple " (no doubt 
to distinguish them from the "bills" presented by 
individuals) 3 should be now shown to the Commons, 
and that such as had been assented to in the form 
" Le Roi le veet" "soit afferme pur Estatut; ce q'est 
dit as Communes touchant partie des dites Petitions 
qe ce ne fuist qe Ordenance et nemie Estatut, qe ceo 

i " Rot. Parl." ii. 254 A. 2 Ibid. iii. 17, no. 56. 

3 " Bill " is the term generally used on the rolls for petitions urged 
by others than the Commons as a whole " par diverses persones ; 
Bille especialle de singuler persone " and not " pur le commun profit 
du people e du reaume". The Commons frequently show hostility 
to these. For references to such "billes," see "Rot. Parl." iii. 61, 
no. 28; ibid. pp. 105-6; ii. 360 A-B ; iii. 60- 1 ; ibid ii. 203, no. 
30; p. 368, no. 46; iii. 321, no. 44. See also the Introduction 
to the " Statutes of the Realm " (reprinted in Cooper's " Public 
Records" i. 171-2, note, with references there quoted). These are 
the origin of private bills. See further, Clifford, " History of Private 
Bill Legislation," vol. i. chap. iii. 



1 64 MAGNA CARTA AND COMMON LAW 

puisse estre vieuwe et rehercee as Communes, et ceo 
qe resonable est qe y soit ordene pur Estatut." 

The next year the Commons pray that " bills " of 
private persons receive no response, but that their 
own petitions be answered, a remedy ordained before 
the dissolution of the Parliament, and upon that " et 
sur ce due Estatut soit fait en ce present Parlement, 
et enseale a demurrer en tout temps a venir". 1 

In the third year of the same reign the Commons 
petition that an existing ordinance " soit mys en Estatut, 
en affirmance d'icelle " ; and the King replied, " soit 
mesme TOrdeinance . . . tenuz et gardez pur Estatut." 5 

In 1399 mention is made of certain statutes "que 
semper ligarent donee auctoritate alicujus alterius 
Parliamenti fuerint specialiter revocata." 3 

Many instances might be given to show that this 
distinction between statute and ordinance, apparently 
perfectly clear, as to form at least, in the time of Ed- 
ward III, was becoming much less so in the fifteenth 
century. 4 

These illustrations seem to show that there was a 
double difference between a statute and an ordinance 
a difference in subject matter, and one of form and 
effect. Statutes were, in the beginning, affirmances 

'"Rot. Parl." iii. 61, no. 28. 

2 Ibid. p. 86, no. 46. 

3 Ibid. p. 419, no. 34. See also generally, stat. 14 Edw. Ill, 
Stats, i and 4, 11 Rich. II, cap. n; 4 Hen. VI, cap. 2; "Rot. 
Parl." iii. 87, no. 50; ibid. p. 11$, no. 74; ibid. p. 138, no. 34; 
ibid. p. 354, no. 32; ibid. iv. 128, A-B ; ibid. p. 35, no. 12 j stat. 
21 Rich. II, cap. 12 ; stat. i Hen. VI, cap. 6 ; 18 Hen. VI, cap. 4, 
13 ; 27 Hen. VI, cap. 5; 29 Hen. VI, cap. 2; "Rot. Parl." iv. 
327-8 ; ibid. p. 328, no. 29 ; ibid. iii. 580, no. 60. 

4 For example, stat. 4 Hen. IV, cap. 35; 13 Hen. IV, cap. 2 ; 9 
Hen. V, stat. 2 ; 8 Hen. VI, preamble ; 20 Hen. VI, cap. 6 ; 29 Hen. 
VI, cap. 2 ; " Rot. Parl." iv. 352, no. 48 ; ibid. p. 354 A ; ibid. iii. 
661, no. 34. 



MAGNA CARTA AND COMMON LAW 165 

of the ancient law, other kinds of enactment were 
employed, for temporary administrative measures. 

At the opening of Parliament, the whole body of the 
ancient customary law, together with the two charters 
and all previous statutes, was affirmed or confirmed. 
This was on the analogy of the earlier declarations of 
the King's peace at the opening of a reign, and it is 
the nearest approach mediaeval England shows toward 
a fundamental law. Before the days of modern written 
constitutions this was the most authoritative way in 
which a fundamental law could be promulgated. 

After the affirmance, came, as indicated in the 
"pronunciationes," the removal of abuses, or of en- 
actments contrary to or impeding the execution of 
this fundamental law, and the enactment of legis- 
lation supplemental to it which might be of sufficient 
importance to be classed with that law itself and 
therefore put into a statute or statutes. As we have 
seen, one of the chief characteristics of the law so 
affirmed, interpreted, cleared, or improved, is its 
permanence. And the instances given above show 
clearly enough that the test of a statute is the ques- 
tion whether the enactment made by it is really in- 
corporated into this law, along with it " perpetuelment 
a durer " and to be affirmed along with it in all subse- 
quent Parliaments. The inference is clear, then, that 
in the beginning, probably all statutes were of this 
kind. But composed as they were of such subject 
matter, it is evident that their enactment is more im- 
portant than other " acts " of a Parliament. As such, 
they required a different mode of authentication than 
less important acts. They were sealed with the Great 
Seal and engrossed upon the Statute Roll .as a part of 
the permanent law, after which they were sent to the 
Chancery and the courts of the two benches, and also 
to Ireland and elsewhere in cases where this was 



1 66 MAGNA CART A AND COMMON LAW 

necessary. Copies were also sent to the sheriffs of 
the counties, ordering their proclamation, preserva- 
tion, and enforcement, within the counties. 

This authentication was in the hands of the Council, 
consisting largely of the judges, or in special cases of 
a committee ; who went over the Parliament Roll, 
during or after the Parliament; which led to many 
omissions and some changes and additions, sometimes 
complained of by the Commons. Ordinances, origin- 
ally, as temporary law, were not affirmed generally at 
the opening of Parliament as the charters, ancient 
law, and previous statutes were. They also required 
a less formal mode of authentication than statutes. 
Without a formal engrossment they could be taken 
by the Council as the basis for royal writs, charters, 
or letters patent, by which they were published and 
their enforcement secured. 

As time went on, the distinction between the sub- 
ject matter of statutes and of ordinances became less 
marked. The difference came to be regarded more as 
a difference of form, though the real distinction did 
not disappear until the fifteenth century. Thus, in 
case of an enactment such as the ordinance concern- 
ing apparel in 37 Edward III, where the subject was 
new, there might be a question whether this was 
fundamental or not, and the Parliament was asked 
whether it preferred the form of a statute or of an or- 
dinance " s'ils voleient avoir les choses issint acordez 
mys par voie de Ordinance ou de Statuyt". They 
answered that they preferred the form of an ordinance, 
in order that it might be changed if necessary at the 
next Parliament. 1 In the fifteenth century the dis- 
tinction seems to be largely disregarded, as temporary 
acts are termed indifferently statutes or ordinances. 
In the half century embraced by the reign of Edward 
1 " Rot. Parl." ii. 280, nos. 38-40. 



MAGNA CARTA AND COMMON LAW 167 

III, however, when the original distinction is still 
clearly preserved, there seems no doubt that a per- 
fectly well understood difference existed between a 
statute " perpetuelment a durer" and an ordinance 
" pur en temps ". 

It would hardly have been necessary to enlarge so 
much on this point but for the evident confusion exist- 
ing even in the minds of the latest writers on this im- 
portant subject. Thus Sir William Anson says : The 
ordinance " is an act of the King or of the King in 
Council : it is temporary, and is revocable by the 
King or the King in Council. The Statute is the act 
of the Crown, Lords, and Commons ; it is engrossed 
on the Statute Roll ; it is meant to be a permanent 
addition to the law of the land ; it can only be revoked 
by the same body that made it and in the same 
form." 1 

He proceeds to prove this by an entry from the 
roll of 1340 which is certainly the clearest statement 
of the real difference to be found in the Rolls of 
Parliament. 2 But an examination of it shows and 
this is corroborated by dozens of other instances 
that the ordinances in this case, as well as the 
statutes, were assented to by King, Lords, and Com- 
mons. It proves his statement that the statutes were 
permanent law and the ordinances temporary pro- 
visions; it expressly contradicts his other assertion 
that an ordinance is necessarily " an act of the King 
or of the King in Council" in distinction from a 
statute, to which the Commons' assent must be added. 

It is said in the excellent preface to Ruffhead's 
edition of the statutes, 3 that the real difference be- 
tween the subject matter proper to a statute and to 
an ordinance lies in the distinction between ancien- 
law and " novel ley " ; which is undoubtedly true, but 

1 Op. cit. i. pp. 241-3. 2 It is given above, pp. 161-2. 

3 Pp. xii-xiii. 



168 MAGNA CARTA AND COMMON LAW 

I think hardly in the sense in which Ruffhead meant 
it. He says many acts were not entered upon the 
Statute Roll, " For if the Bill did not demand ' Novel 
Ley/ that is, if the Provision required would stand 
with the Laws in Force, and did not tend to change or 
alter any Statute then in being, in such Case the Law 
was compleat by the Royal Assent on the Parliament 
Roll, without any Entry on the Statute Roll : and 
Such Bills were usually termed Ordinances." But the 
term "novel ley," as used in the Rolls themselves and 
in the Year Books of the time, does not seem to mean 
new law so much as new enactment. Acts in affirm- 
ance are continually spoken of as "novel ley" in dis- 
tinction to the ancient law lying behind it. And while 
the rest of his statement seems to be completely 
supported by the Rolls themselves, this assertion and 
his inference based upon it seem to go too far. 

One more point in regard to enactment seems in 
need of explanation before we are in position to form 
a true estimate of Magna Carta at this time, and that 
is the legal necessity, and the legal effect, of the 
publication of statutes. 

The sealing, 1 engrossing, 2 and publication, 3 are the 

I Sealing seemed to be necessary. See " Year Book " (Hilary Term), 
8 Edw. II, pp. 264-5 (edition of 1678); "Rot. Parl." ii. 113, nos. 

7,8- 

II Ibid. 

3 For publication, see introduction to " Statutes of the Realm " ; "2 
Inst." 526 ; "3 Inst." 41 ; "4 Inst." 26 ; " 12 Rep." p. 56. Instances 
are very frequent in contemporary records. The writs for publication 
are frequently found with the statutes in the modern printed collections, 
and a few of the early statutes are known only from these writs. See 
also, for example, "Calendar of Close Rolls," 1234-1237, p. 353; ibid. 
1302-1307, p. 396 ; "Calendar of Patent Rolls," 1272-1281, p. 335 ; 
Rymer, "Foedera" (Record Commission) ii. pt. i. p. 275 ; pt. ii. pp. 
745, 753, 828, 937 ; iii. pt. i. p. 272 ; " Placitorum Abbreviatio," pp. 
332, 339, 340-1, 348 ; stat. 23 Edw. Ill, cap. 7 ; stat. 34 Edw. Ill, 
preamble; stat. 7 Rich. II, cap. 6; "Rot. Parl." ii. pp. 10; 62, no. 
10 ; 113, nos. 7, 8 ; 254 A ; iii. p. 370 A-B ; 478, no. 1 14. 



MAGNA CARTA AND COMMON LAW 169 

outward marks of an early statute. The procedure is 
so fully described in the introduction to the " Statutes 
of the Realm/' 1 that it need not be repeated here. 
Their publication, however, was so important a part 
of the authentication of statutes in early times that a 
statute is usually referred to before the middle of the 
fourteenth century as "statutum editum " in a certain 
Parliament or year. 2 

The theory of "representation" is found surpris- 
ingly early in England, but so long as the composition 
of Parliament was uncertain, publication in the coun- 
ties must have been of even greater importance than 
it was afterward. It is probable that some doubt 
existed in this period as to the reality of the assent 
" omnium utentium " unless a statute had been actually 
proclaimed locally throughout the realm. 

This probability is strengthened by the cases where 
the King, who alone could give effect to an enactment, 
saw fit temporarily to suspend its operation. In the 
later Middle Ages there is considerable evidence of 
the existence of a suspending power on the part of 
the King, notwithstanding the summary dismissal of 
it as "pretended" by the Parliament in i689. 3 

It seems certain, however, that when the composi- 
tion of Parliament settled down into its final form, 
:such doubts, if they existed, were swept away by 
the full acceptance of the theory that the whole body 
of the people were constructively in Parliament and 
therefore were bound by all its statutes on their mere 

1 Section V, ii. 2. 

2 For example, " I stud statutum [De Quo Warranto] fuit editum in 
Parliament Regis . . . anno regni suo decimo octavo." " Plac. Abb." 
p. 225 (Hilary Term, 19 Edw. I). See also ibid. 226, 321, 334 ; 
" Liber Albus " (Rolls Series), p. 441 ; Rymer, "Foedera" (Record 
Commission), vol. iii. pt. i. p. 217. 

3 For example, " Rot. Parl." i. 217 B (1306); stat. 43 Edw. Ill, 
cap. 2 ; stat. 9 Rich. II, cap. i. 



1 70 MAGNA CARTA AND COMMON LAW 

enactment without publication, though the publication* 
was actually continued until the invention of printing 
made it no longer necessary. This view was stated 
with vigour and clearness in 39 Edward III, in the 
case of Rex v. the Bishop of Chichester. 1 The prosecu- 
tion was under the Statute of Provisors, and Serjeant 
Cavendish, counsel for the Bishop set up as a part of 
his defence that this enactment was not binding be- 
cause it had not been published in the counties. He 
was answered by Sir Robert Thorpe, the Chief 
Justice : " Granting that proclamation was not made 
in the county, nevertheless every one is considered to 
know what is done in Parliament : for so soon as 
Parliament has concluded anything, the law presumes 
that every person has notice of it ; for the Parliament 
represents the body of all the Realm ; wherefore it is 
not necessary to have proclamation where the statute 
took effect before ". 

It now remains to apply these deductions to Magna 
Carta and to Edward I's mandate requiring its en- 
forcement by his judges, as common law. 

John's Charter was in form a royal grant guarantee- 
ing rights almost all of which had already existed by 
feudal custom or otherwise. It was granted primarily 
to his tenants-in-chief and their " homines ". It was 
a feudal rather than a national document, and the 
grantees were probably then conceived to include 
none lower than " vavassores ". 2 But the reign of 
Henry III was from the point of view of the develop- 
ment of institutions, almost a revolutionary epoch, 
The loss of Normandy and other influences brought 
about in this period a remarkable development of the 

lu Year Book," Pasch. 39 Edw. Ill, p. 7- See also Coke's com- 
mentary, " 4 Inst." p. 26. 

2 1 have treated this point more fully elsewhere. See " Due Process, 
of Law in Magna Carta," " Columbia Law Review," January, 1914. 



MAGNA CARTA AND COMMON LAW 171 

idea of nationality, which is reflected in the growth of 
the National Assembly and in other respects. 1 This 
influence can be seen in Magna Carta. In addition to 
the extension of John's articles on the forest into a 
new, separate, and more detailed charter, Magna 
Carta itself was reissued three times, with new 
clauses, defining, interpreting, and enlarging some of 
the original articles of a permanent nature and omit- 
ting the parts obviously temporary. In addition, it 
was solemnly confirmed by an excommunication 
against all who should break or change it, and it 
was confirmed by the Statute of Marlborough. An 
examination of these documents and incidental in- 
ferences in other writings of this reign, official and 
non-official, leads to the conclusion that contemporary 
ideas of the nature of Magna Carta greatly changed 
during this period. It was now seen that this was 
more than a "carta libertatum " : it was a "carta 
libertatis". Though originally granted only to 
feudal " homines," it was now applied to all " liberi 
homines " : though " conceded " at first as by royal 
favour, in this period it comes to be regarded as a 
solemn affirmance of fundamental rights, guaranteed 
to all, and approved by all. For the year 1225 the 
Annals of Dunstaple, in speaking of the reissue of 
Magna Carta in that year, say, that in the " colloquium 
generale " in London, " Post multas vero sententiarum 
revolutiones, communiter placuit quod rex tarn populo 
quam plebi libertates, prius ab eo puero concessas, 
jam major factus indulsit ". 2 

1 Powicke, "The Loss of Normandy," particularly chap. x. 

2 P. 93 ("Annales Monastici," Rolls Series), quoted in Stubbs, 
" Select Charters " (ninth edition), pp. 322-3. With this compare the 
ratification of the sentence of excommunication in 1253, containing a 
protest against any additions to or changes in it, by the King, all the 
magnates, " et communitas populi " (Bemont, " Chartes," p. 74). Also 



i/2 MAGNA CARTA AND COMMON LAW 

The sentence of excommunication in 1253 condemns 
all who shall violate, infringe, diminish, or change 
the rights of the Church, the ancient and approved 
customs of the realm, " et praecipue libertates et liberas 
consuetudines que in cartis communium libertatum 
et de foresta continentur "^ Bracton calls the third 
reissue of Magna Carta " constitutio libertatis " 2 or 
" constitutio " merely, 3 and, as we have seen, Magna 
Carta is referred to officially in 19 Edward I as "sta- 
tutum de Ronemede". 4 The author of the " Mirror of 
Justices" mentions it as "la constitution de la chartre 
des franchises". 5 By 1297 it has become "la graunt 
chartre des fraunchises d'Engleterre," proclaimed "pur 
le commun profit du peuple e de reaume ; 6 or Magna 
Carta "domini Henrici quondam regis Anglie . . . de 
libertatibus Anglie " ; 7 though to Pope Clement V it is 
only " concessiones variae et iniquae". 8 By the time 
the word statute has come to have a definite meaning, 
we begin to find that term also applied to Magna 
Carta. 9 In 15 Edward III the Commons strengthen 
one of their petitions by a reference to "les pointz de 
la Grande Chartre faitz par les nobles Rois et ses Pro- 
genitours, et les Grantz du Roialme sages et nobles 

the writ of Edward I in 1297 ordering the publication of the Charter 
there declared to be made in " relevacionem omnium incolarum et 
populi regni nostri " (ibid. p. 92). 

1 Bemont, " Chartes des Libertes Anglaises," p. 72. 

2 Folio 168 B. *Ibid. 169 B. 

4 Ante, p. 136. 5 P. 151 (Selden Society). 

6 Bdmont, op. cit. pp. 82, 83. See also p. 99. 

7 Ibid. pp. 90, 92 ; in the "inspeximus" of the same year. 

8 Bull annulling the Charter in 1305, Bemont, "Chartes," p. no. 

9 E.g. "Year Book," 11 & 12 Edw. Ill, p. 63 (Rolls Series) ; "Rot. 
Parl." ii. 265, No. 12, where Magna Carta and the Charter of the 
Forest are spoken of as "ditz Estatutz"; stat. 38 Edw. Ill, stat. i. 
mentions the two charters et " les autres Estatutz " faitz in past times. 
This expression is very common. See, for example, " Rot. Parl." ii. 
269 ; iii. 647 B ; iv. 403, no. 36. 



MAGNA CARTA AND COMMON LAW 173 

adonques Pieres de la terre, et puis sovent confirmez 
de divers Rois ; Et puis molt des autres Ordinances, 
e Statutz, faitz pur profit du commune poeple entend- 
ant les pointz de la dite Chartre, ensemblement od 
les autres perpetuelment a durer, sanz estre enfreintz 
sinoun par acorde et assent des Pieres de la terre, et 
ce en pleyn Parlement ". l In 1432 the Commons ap- 
peal to " ye Statut of the Crete Chartre, confermed by 
diverse oder Statutes ". 2 

Thus it is clear that Magna Carta had come to be 
considered an enactment much in the original sense of 
a statute : in affirmance of ancient law. The quota- 
tion above from the roll of 15 Edward III brings this 
out clearly. 3 It also shows that Magna Carta was 
regarded as common law, with its interpretations. 

It is such statements as this that enable us to put 
Magna Carta in its true setting in the fourteenth 
century. But there is another phrase in the same 
quotation from the roll of 15 Edward III "Et puis 
molt ". Magna Carta, while much the same in char- 
acter as other statutes, in binding force is classed far 
above them. While it is said they may be changed in 
Parliament, this statement does not include Magna 
Carta itself. We shall see later that this distinction 
was constantly made. Magna Carta had, in fact, from 
the time of Henry III, been recognized as in some 
sense a law fundamental. Henry Ill's reissue of 1225 
was the form considered final. We have evidence of 
this as early as Bracton's time. In a quotation given 
above, Bracton says a writ is to be quashed " si im- 
petratum fuerit contra jus et regni consuetudinem et 
maxime contra chartam libertatis ". 4 

The author of the " Mirror," in his fifth book, " De 
Abusions," begins with Magna Carta, "cum la lei 

1 " Rot Parl." ii. 128, no. 9. * Ibid. iv. 403, no. 36. 

3 Ante, p. 172. 4 Ante, p. 152. 



174 MAGNA CARTA AND COMMON LAW 

de ceste reaume fondee sur xl pointz de la grande 
chartre des fraunchises soit desuse dampnablement par 
les guiours de la lei e par estatuz pus fetez con- 
traiauz a ascuns de ces poinz "/ He then proceeds 
to enumerate the "defautes " of the various articles of 
the Charter, implying that they are in affirmance of 
the law ("fondie sur dreit "), though in some cases in- 
complete ("defectif"); 2 but he has no doubt that they 
render invalid (" destrut ") any subsequent statute in- 
consistent with them. 3 "And," he declares, "what is 
said of this statute [Merton] is to be understood of 
all statutes made after the first making of the Great 
Charter in the time of Henry III, for it is not law 
that anyone should be punished for a single deed by 
imprisonment or any other corporal punishment, and 
in addition by a pecuniary punishment or ransom." 4 

In 14 Edward I the sheriffs of London had been 
violating the article of Magna Carta guaranteeing 
judgment by peers. "Et justiciarii dicunt, quod 
Dominu s Rex hoc nullo modo concedere, secundum 
Magnam Chartam Angliae, sed est ultra regiam 
potestatem et contra omnem justitiam," etc. 5 

The so-called statute " De Tallagio non Concedendo " 
provides that if, against the ancient laws and liberties 
or against any article of Magna Carta, any statute 
had been published by the King or his predecessors, 
or any customs introduced, such statutes and customs 
"vacua et nulla sint in perpetuum ". 6 We have seen 
that the confirmation which was actually enacted at that 
time declared null, not previous acts, but "jugementz 
donez desoremes ". 7 

The terms of the letters patent of confirmation in 

*P. 175 (Selden Society). 2 " Rot. Parl." iv. p. 176. 

3 Ibid. pp. 179, 1 80, 1 8 1, 199-200. 4 Ibid, p, 182. 

5 " Liber Custumarum," p. 410 (Rolls Series). 

6 B&nont, "Chartes," pp. 88-9. 7 Ante, p. 123. 



MAGNA CARTA AND COMMON LAW 175 

1301 are very interesting. There it is declared that 
" si que statuta fuerint contraria dictis cartis vel alicui 
articulo in eisdem cartis contento, ea de communi 
consilio regni nostri modo debito emendentur vel 
eciam adnullentur ". l 

The difference between this provision and that of 
the confirmation of 1297, as well as the possible re- 
lation of both to the provision in the so-called statute 
" De Tallagio non Concedendo," is very significant. 

By 1301 the normal way of obtaining the common 
counsel of the realm on the amendment or annulling 
of any law the " modus debitus " had certainly be- 
come an enactment by Parliament. An accord or judg- 
ment of Parliament was " le plus haute le plus solempne 
juggement de ceste terre"; an award, "fait en la plus 
haute place en le Roialme ". 2 Whether, in dealing with 
Magna Carta, Parliament should act in its judicial 
capacity or in a legislative way by statute, no more 
effective sanction could be devised in those days. 
The confirmation of 1301 must be considered as an 
honest attempt to secure enforcement, in the most 
effective manner known, of the provisions of Magna 
Carta. 

It would seem fair to say, then, that Magna Carta 
was considered a really "fundamental law"; and that 
the confirmation of 1301 first authorized the manner 
of confirming it which was regularly followed until 
all confirmations ceased. 

After this confirmation no additions were made to 
the Charter, and it became the custom to confirm it as 
a matter of course at the beginning of each Parliament. 
This is as near to a fundamental law as the conceptions 
of mediaeval Englishmen could reach. We should not 
expect to find more. 

'Bemont, "Chartes," p. 109. 

2 " Rot. Parl. " ii. p. 24 A-B (1328). 



1 76 MAGNA CARTA AND COMMON LAW 

Parliament was not content in the years follow- 
ing merely to confirm Magna Carta : it occasionally 
declared in general terms that all inconsistent acts 
should be void. The famous ordinances of 1312 de- 
clared that any such acts " soit tenuz pur nul, e tout 
outrement defait "^ In 1368, in response to the 
Commons' petition, the King promised that the 
charters should be observed and that any statute 
passed " a contrarie soit tenu pur nul ". 2 The statutes 
of that year add these words to the usual confirmation. 3 

In 1376 the Commons complain of infringements 
of Magna Carta " par sinistrers interpretations d'ascuns 
gentz de Loi," and pray that it be observed, notwith- 
standing any statute, ordinance, or charter to the 
contrary. 4 The same request was made in another 
Parliament in the same year. 5 A similar one is found 

in I379- 6 

In i Henry IV the Commons petition for the 
repeal of a statute of the King's grandfather which 
they allege to be " expressement fait encontre la tenure 
e effect de la Grande Chartre ". 7 

In 1397 Parliament declared the "award" of Parlia- 
ment against the Despencers void>as against law, right, 
and reason, and against Magna Carta. 8 

In 1341 the Peers prayed that infringements of 
Magna Carta should be declared in Parliament, and 
" par les Pieres de la terre duement redrescez ". 9 

During the fourteenth and fifteenth centuries the 
practice continued of confirming Magna Carta, as is 
proved by both the Parliament arid the Statute Roll ; 
but it would serve no purpose to refer to any of these 

1 "Rot. Parl." i. 285, no. 31. * Ibid. ii. 295, no. 10. 

3 Stat. 42 Edw. Ill, cap. i. 4 " Rot. Parl." ii. 331 A. 

* Ibid. 364. * Ibid. iii. 61, no. 27. 

7 Ibid. 443 A. * Ibid. 365 A. 
9 Ibid. ii. 127 B to 131. 



MAGNA CARTA AND COMMON LAW 177 

numerous confirmations, which are usually brief and 
stereotyped in form. The regularity of the practice 
was recognized in 1381 in a petition of the Commons 
praying, " since by the Great Charter it was ordained 
and affirmed "communement entouzautresParlementz" 
that law be not denied or sold to anyone, that there- 
fore fees be no longer taken by the Chancellor for 
writs. 1 

The confirmations of these years vary in the com- 
prehensiveness of their statements, but they almost 
invariably include Magna Carta, the Charter of the 
Forest, and former statutes. In the fifteenth century 
the reference to these statutes (but not to the 
charters) is usually limited by the phrase " et nient 
repellez ". 

Sometimes the Commons try to go further than a 
mere confirmation. In 1341 they petitioned that all 
the great officers of the realm be sworn to observe 
Magna Carta and the other laws and statutes, 2 that 
Magna Carta be publicly read and affirmed by oath, 
and that penalties be inflicted on sheriffs or other 
ministers of the King who failed to enforce its observ- 
ance. 3 In 1354 they petitioned for the reading of 
Magna Carta. 4 In 1377, at the opening of the new 
reign, the Commons again asked that it be read in 
Parliament ; and this was done. 5 It was read again in 
the Parliament of 1380. 

Occasionally there is a demand that the Charter 
be not merely read, but officially interpreted. 7 In 
1377 this demand goes further. The Charter was not 
only to be read, but it was to be declared point by 
point by the members of the Continual Council with 

1 " Rot. Parl." iii. 116, no. 88. 2 Ibid. ii. 128, no. 10. 

3 Ibid. 129, no. 20. 4 Ibid. p. 259, no. 28. 

Stat. i Rich. II, cap. i. 6 " Rot. Parl." iii. 88 A. 

7 Ibid. i. 286, no. 38. See also ibid. ii. 7, nos. i, 3. 
12 



i;8 MAGNA CARTA AND COMMON LAW 

the advice of the judges and Serjeants or others if 
necessary. The "pointz" so declared and amended 
were to be submitted to the Lords and Commons at 
the next Parliament, and then "estre encresceez e 
affermez pur Estatut s'il semble a eux q'il soit a faire ; 
eiant regarde coment le Roi est chargee a son Corone- 
ment de tenir e garder la dite Chartre en touz ses 
pointz ". The King, in general terms, promised that 
it be read and observed, but ignored the request for 
interpretation- 1 

If space permitted, many instances might also be 
given of Parliament's solicitude, not merely for general 
confirmations of the Charter, but also for the observ- 
ance of its specific provisions by the courts. 

Magna Carta, in the later Middle Ages, is looked 
upon and treated as an enactment in affirmance of 
fundamental common law, to be confirmed and ob- 
served as a part of that law; but undoubtedly all 
other enactments of such law are regarded as " puis 
molt ". 

The evolution of a " constitutional law" in America 
has generally been considered by British writers as 
without precedent in earlier English institutions. 
Such a view is hardly supported by a study of those 
institutions in the Middle Ages, before the modern 
doctrine of the legislative sovereignty of Parliament 
had taken definite form. 

But it seems hardly possible completely to identify 
the "fundamental law" of mediaeval England with the 
usual modern forms of such a law. In fact the con- 
tent of that law, of which Magna Carta is the best 
example, was not entirely nor mainly " constitutional ". 
"Rigid" constitutions are a development of modern 
times. To us it seems natural to place the framework 
of government in a class by itself. We think of it 

lu Rot. Parl." iii. 15, nos. 44-5. 



MAGNA CARTA AND COMMON LAW 179 

alone as the fundamental law. We go so far as to 
make of " fundamental " and " constitutional " practi- 
cally equivalent terms. This was not done in medi- 
aeval England. 

For the Englishmen of that day the "fundamental 
law " did indeed include the law of the Crown, but it 
included also the law of the realm, and the second 
bulked larger than the first. Even what we might be 
tempted to call "the law of the constitution," was in 
those days what it still remains, in England and even 
in great measure in the United States, notwithstand- 
ing our written constitutions: "little else than a 
generalization of the rights which the Courts secure 
to individuals "- 1 

Though this be true, an added interest is un- 
doubtedly given to a study of the earlier manifesta- 
tions of the idea of a law fundamental by the growing 
tendency in certain quarters in England, arising out 
of the recent and almost revolutionary constitutional 
changes, to demand that the structure of the State be 
placed above and beyond the possibility of change by 
the ordinary law-making organ. 

1 Dicey, "Law of the Constitution" (seventh edition), p. 196. 



THE INFLUENCE OF MAGNA CARTA 

ON AMERICAN CONSTITUTIONAL 

DEVELOPMENT. 

BY H. D. HAZELTINE, M.A., Lnr.D. 

FOR seven centuries Magna Carta has exerted a power- 
ful influence upon constitutional and legal development. 
During the first four centuries after 1215 this influence 
was confined to England and the British Isles. With 
the growth of the British Empire during the last three 
hundred years, the principles of the Charter have 
spread to many of the political communities which 
have derived their constitutional and legal systems 
from England, and which have owed in the past, or 
which still owe, allegiance to the mother-country. 
The earliest, and perhaps the most important phase of 
this imperial history of Magna Carta is its effect upon 
the constitutions and laws of the American colonies 
and of the Federal Union that was established after 
their War of Independence. 

In this story of the Charter's influence upon Ameri- 
can constitutional development three separate periods 
should be*distinguished. The colonial period, which 
began with the granting of the first Virginia Charter 
by James I in 1606 and which ended about 1760, was 
followed by the epoch of the American Revolution. 
With the Treaty of Paris of 1783, in which Great 
Britain acknowledged her former colonies to be "free, 
sovereign, and independent States," the present period 
of national existence had its definite beginnings. Each 

(180) 



THE INFLUENCE OF MAGNA CARTA 181 

one of these periods is closely related to earlier events 
and ideas in the history of England and of the colonies. 
Together the three periods constitute American con- 
stitutional and legal evolution as a whole ; but this 
American evolution is one that rests for its foundation 
upon the long centuries of English development that 
preceded its own beginnings, and that bears also, in a 
marked degree, the imprint of constitutional and legal 
changes in England during the period of colonization 
and even in later times. 

Indeed, rightly to understand the constitutional and 
legal history of the colonies and of the United States 
of America, in each period of which Magna Carta plays 
a role, we should not forget that the Englishmen who 
settled in America in the seventeenth century inherited 
all the preceding ages of English history. To them 
belonged Magna Carta and the Common Law ; to them 
belonged the institutions and ideas that were inextri- 
cably bound up with Magna Carta and the Common 
Law ; to them belonged the legal traditions of the 
Tudor age the age that immediately preceded the 
period of colonization. The colonies did not fail to 
enter upon their inheritance ; and the result has been 
that colonial institutions and principles, both of public 
and of private law, retained much of the Tudor and 
the pre-Tudor tradition, and that even to-day Ameri- 
can institutions and principles bear the impress of its 
influence. 

For England the seventeenth century was the first 
great age of the Empire the age of commercial and 
colonial expansion not only in the West, but in the 
East ; and it was the age also of the momentous 
struggle at home between the Crown and Parliament 
between the claims of royal prerogative and of Par- 
liamentary supremacy. In America the century was 
pre-eminently the age of settlement and the growth 



182 THE INFLUENCE OF MAGNA CARTA 

of chartered colonies, either of proprietary or corporate 
character, this American development constituting one 
phase of English expansion ; and it was likewise the 
age in which the results of constitutional conflict in 
England exerted their first influences upon the develop- 
ment of colonial institutions and of colonial legal and 
political ideas. The growth of the colonies in America 
meant, from the very beginning, the extension of Eng- 
lish institutions and laws to these little Englands 
across the 'sea. To their birth-right of the English 
traditions of the sixteenth and earlier centuries was 
now added the gift of the constitutional and legal 
principles established in seventeenth-century England, 
the England of Stuart kings, of Commonwealth and 
Pretectorate, of Revolution ; for the changes in the 
public and private law of England during the century 
directly and vitally affected constitutional and legal 
growth in the colonies. As the Common Law emerged 
at the end of the century enriched by judicial decisions 
and constitutional enactments, the fundamental prin- 
ciples which they embodied were added to the Com- 
mon Law heritage of Englishmen in the colonies. 
Thus, like Magna Carta itself, the great constitutional 
documents of the seventeenth century, such as the 
Petition of Right, the Habeas Corpus Act, and the Bill 
of Rights, have a colonial as well as a purely English 
history. To these statutes, as to Magna Carta, the 
colonists turned as the documentary evidence of the 
fundamental rights and liberties of all Englishmen, 
whether they resided in the home-land or in the Eng- 
lish communities of America. 

Perhaps the most important feature of American 
history before the revolutionary epoch was the gradual 
transition from chartered colonies to royal provinces 
and, owing to British colonial and commercial policy 
of the times, the tightening of imperial control through 



ON AMERICAN DEVELOPMENT 183 

Crown and Parliamentary agencies. Although the 
constitutional changes in England during the eight- 
eenth century, including the further development of 
Parliamentary sovereignty, vitally affected the relation- 
ship between the colonies and the home-country, yet 
they failed to influence in any marked degree purely 
colonial constitutional development. 1 From the early 
eighteenth century down to the present day American 
institutions have developed, in the main, along their 
own lines, largely upon the basis of English develop- 
ment in the seventeenth and earlier centuries, colonial 
development in the seventeenth century, and American 
political thought and constructive statesmanship of 
the eighteenth, nineteenth, and twentieth centuries. 

This striking divergence of American from English 
institutions, dating from the early eighteenth century, 
is in sharp contrast with the history of the law. 
Throughout the eighteenth century, though perhaps 
less in the period of the Revolution, English Common 
Law continued to influence the development of colonial 
legislation and judicial decisions ; and even to-day the 
American system of Common Law and Equity is in its 
fundamental characteristics the same as that. of Eng- 
land. So, too, in certain leading features of constitu- 
tional law as distinct from constitutional institutions, 
such as the American system of three co-ordinate 
departments of government and the power of the judi- 
cature to declare an act of the legislature null and void 
because in conflict with the written constitution we 
see a striking persistence of English principles. Rights 

1 Lowell, " Government of England," ii. 472, expresses this forcibly 
when he says : " American institutions are still in some respects singu- 
larly like those of England at the death of Queen Anne . . . Thereafter 
the changes in the British Constitution found no echo on the other 
side of the Atlantic, largely no doubt because taking the form of 
custom, not of statute, they were not readily observed." 



i8 4 THE INFLUENCE OF MAGNA CARTA 

and liberties of Englishmen embodied in Magna Carta, 
the Bill of Rights, and other constitutional documents 
became vital features of colonial constitutional law, 
and have continued throughout the revolutionary and 
national epochs to the present day to be essential 
elements of American constitutional law. 

The story of the influence of Magna Carta on Ameri- 
can constitutional development is but one phase of the 
whole history of English institutions and law in 
America, and this in turn is but one chapter in the 
history of a broader, a further-reaching development 
the extension of English institutions and of English 
Common and Statutory Law to the many political 
communities that have formed or still form parts of the 
British Empire. In studying Magna Carta in America 
we are concerned, therefore, with one feature and one 
only, of this whole vast process. But just as the 
influence of Magna Carta in England itself cannot be 
understood apart from the long history of the ever- 
changing body of rules and principles that go to make 
up the system of English Common Law, of which the 
provisions of Magna Carta form only a part, so, too, 
an understanding of the influence of Magna Carta in 
America can only be reached by considering this great 
legal document as but one of the many sources of Eng- 
lish Common Law in its American environment. In 
the present paper certain main features of the American 
development, throughout its three periods, will be 
suggested ; but without any attempt at exhaustive 
consideration. 

I. 

i. From the very beginning the colonists claimed 
that they were entitled as Englishmen to the law of 
Englishmen the Common Law as a great corpus 
iuris based on the decisions of the courts and on the 



ON AMERICAN DEVELOPMENT 185 

statutory enactments of Parliament, a body of the rules 
of private and public law which secured to Englishmen 
their rights as private individuals in their relations one 
with another and also their rights and liberties as sub- 
jects of the Crown. It was this Common Law of Eng- 
land which the various colonies, acting through their 
executive, legislature, and judicature, adopted or re- 
ceived, either partially or wholly, as the law adapted 
to the needs of English communities in America. 
Along with the English Law thus received by the 
colonists, there grew up in the various American 
communities new rules and principles based on colonial 
customs, the reformative skill of colonial law-makers, 
and, in the Puritan colonies of new England, natural 
or Divine law. 1 

If, for the moment, we view the whole system of 
English Common Law as partly public and partly 
private law, even though English legal thought does 
not draw a sharp distinction between the two, we 
may the more easily grasp the early attitude of the 
colonists towards the law of the home-land. Reinsch 

1 In claiming the Common Law as their own the colonists were but 
applying Coke's doctrine (12 Rep. 29) that "the law and custom of 
England is the inheritance of the subject ". 

On the extension of the Common Law to the American colonies, see 
Reinsch, " English Common Law in the Early American Colonies " ; 
Sioussat, " Extension of English Statutes to the Plantations " ; Andrews, 
" Influence of Colonial Conditions as Illustrated in the Connecticut 
Intestacy Law " (all three papers in "Essays in Anglo-American Legal 
History," 1907, i. pp. 365-463) ; Pound, " Readings on the History and 
System of the Common Law " (second edition), 1913, pp. 262-304 ; " Two 
Centuries' Growth of American Law, 1701-1901 " (Yale Essays, 1901) ; 
Stevens, "Sources of the Constitution of the United States," 1894, 
chaps, i., ii., viii. ; Warren, " History of the American Bar," 1912, pp. 
1-208 ; Andrews, "Colonial Period," 1912, pp. 182-5. 

On the diffusion of English law throughout the world, see Pollock, 
41 Genius of the Common Law," 1912, especially chap. vi. ; Bryce, 
" Roman and British Empires," 1914, pp. 79-133- 



i86 THE INFLUENCE OF MAGNA CARTA 

has expressed this attitude in these words : " English 
colonists, in their general ideas of justice and right,, 
brought with them the fruits of the ' struggle for 
law ' in England. . . . Most of the colonies made 
their earliest appeal to the Common Law in its char- 
acter as a muniment of English liberty, that is, 
considering more its public than its private law ele- 
ments." 1 Or, in Channing's phrase: "So far as [the 
English Common Law] protected them from the Eng- 
lish government and from royal officials they looked 
upon it as their birthright ; so far as it interfered with 
their development it was to be disregarded ". 2 If we 
bear this fact in mind, we shall see the more clearly 
that English constitutional statutes and cases were, as 
their " birthright," of fundamental importance to the 
English colonists of America in their struggles with 
colonial and imperial authorities. In the earlier 
Stuart reigns Magna Carta, as the greatest of all 
English statutes of liberty, was regarded by the 
colonists as a bulwark of their rights as Englishmen. 
As the seventeenth century advanced, the great con- 
stitutional struggles in England were reflected in the 
colonies; 3 ancl the Petition of Right, the Habeas 
Corpus Act, the Bill of Rights, and the Act of Settle- 
ment (1701) took their place beside Magna Carta in 
the minds of the colonists as statutory guaranties of 
the rights of Englishmen, both at home and away 
from home, in respect of life, liberty, and property. 4 

1 Reinsch, op. cit. i. 414, 415; Hallam, "Constitutional History 
of England," iii. 1906, p. 338 : " In quitting the soil of England to- 
settle new colonies, Englishmen never renounced her freedom. Such 
being the noble principle of English colonization, circumstances, 
favoured the early development of colonial liberties." 

Channing, "History of the United States," i. 1905, p. 529. 

3 Ibid. op. cit. ii. 1908, chaps, vi.-viii. 

4 On the claim of the colonists to the benefits of Magna Carta and 
other constitutional statutes of England, see Osgood, "American 



ON AMERICAN DEVELOPMENT 187 

It is for this reason that we must view Magna Carta 
in its history in the colonies as only part though a 
most valuable part of the whole body of English con- 
stitutional law, the Common Law in its character of 
public rather than private law, the Common Law as 
it is found in constitutional cases and constitutional 
statutes. 

As Englishmen owing allegiance to the Crown and 
settling upon land claimed by England as under its 
sovereignty, the colonists were,, it would seem, en- 
titled to the rights of Englishmen embodied in Magna 
Carta and other sources of Common Law without 
further sanction of royal charter or colonial legisla- 
tion. But, not only did royal charters to the colonists 
secure these constitutional rights, they were incor- 
porated also in colonial legislation. 

2. The granting of the first Virginia Charter by 
James I in 1606 marks the real beginning of English 
settlement in America and the opening of a new era 
in the history of colonization in general. In this 
famous document the final form of which was in part 
the work of Coke himself the King not only claimed 
the right to colonize a large portion of the territory of 
the New World, but he asserted the principle that 
English colonists in this territory were to enjoy the 
same constitutional rights possessed by Englishmen 
in the home-land. This principle had been embodied 
in the Elizabethan patents to Gilbert and Raleigh ; 
but the colonizing experiments of these adventurers 
under the Queen's authority had produced no per- 
manent results, and it was not until after James's 

Colonies in the Seventeenth Century," 1904, i. 258 et seq.\ iii. u, 
14 ; Channing, op. cit. i. 528, 529 ; ii. 222-5 ; Warren, op. cit. p. 
103; Story, "Constitution of the United States," 149; Cooley, 
"General Principles of Constitutional Law in the United States of 
America" (second edition), 1891, pp. 5-8. 



iSS THE INFLUENCE OF MAGNA CARTA 

patent to the Virginia Company that the principle 
first took root in American soil. " Also we do," reads 
James's Charter, " for Us, our Heirs, and Successors, 
Declare, by these Presents, that all and every the Per- 
sons, being our Subjects, which shall dwell and in- 
habit within every or any of the several Colonies and 
Plantations, and every of their children, which shall 
happen to be born within any of the Limits and Pre- 
cincts of the said several Colonies and Plantations, 
shall HAVE and enjoy all Liberties, Franchises, and 
Immunities, within any of our other Dominions, to all 
Intents and Purposes, as if they had been abiding and 
born, within this our Realm of England, or any other 
of our said Dominions." 1 

It was this principle, repeated in many later charters 
to the American colonies, which gave to English 
colonization one of its most distinctive characteristics. 
In the sixteenth and seventeenth centuries the colonists 
of other countries were, not privileged to enjoy the 
constitutional guaranties of the inhabitants of the 
colonizing States themselves ; on the contrary, colon- 
ists were viewed as persons outside the constitutional 
and legal system of the home-country itself. It may 
well be questioned, as already suggested, whether 
the solemn declaration of the principle by English 
sovereigns was essential to the valid extension of 
English laws and constitutional privileges to the 
colonists; rather is it true to say that the colonists 
who settled on territory claimed by England and who 
recognized their allegiance to the English Crown, 
carried with them, whether the King willed it or 

1 For the text of the first Virginia Charter, see Macdonald, " Select 
Charters and Other Documents Illustrative of American History, 1606- 
1775," 1910, pp. i-ii. Other colonial charters will be found in the 
same volume. 



ON AMERICAN DEVELOPMENT 189 

not, so much of the English constitutional and legal 
system as was applicable to their situation. The 
government of Plymouth rested, throughout its his- 
tory as a separate colony, upon the Mayflower Com- 
pact, not upon royal charter. Penn's patent as 
proprietor in 1681, unlike the other colonial charters, 
contained no provision to the effect that the inhabi- 
tants of the colony should be deemed subjects of the 
Crown, and as such entitled to all the liberties and 
immunities of Englishmen ; but, as the territory of the 
colony was claimed by England, and as the allegiance 
to the Crown was reserved, it would seem clear that 
the colonists were subjects and as such entitled to all 
the privileges of Englishmen. This, at any rate, was 
the opinion of the great Chalmers in regard to Penn's 
patent. But, whatever view we may hold upon this 
question, a solemn enunciation of the principle in 
royal charters furnished a solid documentary basis for 
the claim of the colonists that they possessed the 
rights of Englishmen. Royal charters were held by 
the colonists to be solemn compacts between the King 
and themselves; and these solemn compacts consti- 
tuted the earliest written constitutions of the colonies. 
Embodied as they were in these fundamental instru- 
ments of government their constitutional rights as 
Englishmen seemed to the colonists unassailable. 
Time and time again, in their struggles with colonial 
and imperial authorities, the colonists relied upon their 
charters as the documentary evidence the written 
title--of rights secured to them, as to all Englishmen, 
by Magna Carta, the Bill of Rights, and the general 
principles of the Common Law. The declaration of 
the royal charters thus acted as a powerful factor 
in the spread throughout the colonies of English 
constitutional principles including the rights and 



I9 o THE INFLUENCE OF MAGNA CARTA 

liberties secured by Magna Carta and its confirma- 
tions. 1 

3. There is another feature of the royal charters 
which deserves attention ; their expressed declaration 
that the colonies may legislate for themselves so long 
as the laws thus enacted conform to the English legal 
system. Thus, by way of example, the Massachusetts 
Charter of 1691 explicitly says: "And we doe . . . 
further . . . grant to the said Governor and the great 
and Generall Court . . . full power and Authority from 
time to time to make ... all manner of wholesome 
and reasonable Orders Laws Statutes and Ordinances 
Directions and Instructions either with penalties or 
without (soe as the same be not repugnant or contrary 
to the Lawes of this our Realme of England) as they 
shall Judge to be for the good and welfare of our said 
Province ". 2 

This grant of legislative power to the colonies 
produced important results, not the least of which was 
the growth of a body of colonial statutory law adapted 
to the needs of the new English communities across 
the sea. Both in form and in substance much of this 
written law of the colonies was a re-enactment of 
the Common and Statutory Law of England, and thus 
conformed to English legal traditions and to the 
requirements of the charters. On the other hand, the 

1 On the royal charters as grants to the colonists of the constitutional 
rights of Englishmen, see Channing, op. cit. i. 157-62, 308, 309; 
Stevens, op. cit. pp., 1-34 ; Egerton, "Short History of British Colonial 
Policy" (second edition), 1908, pp. 17-19, 70 (cf. pp. 508, 509). On the 
chatters as the earliest American constitutions and as the foundation of 
the constitutions of the national era, see Thayer, " Legal Essays," 1908, 
pp. 3, 198. 

2 For the text of the Massachusetts Charter of 1691, see Macdonald, 
op. cit. pp. 205-12. 

Similar provisions are inserted in the commissions and instructions 
issued to provincial governors. See Greene, "The Provincial Gov- 
erner," 1907, pp. 93-7, 162-5, 207-70. 



ON AMERICAN DEVELOPMENT 191 

colonial legislatures introduced into their laws and 
codes many new features especially adapted to local 
conditions. Some of these features were archaic in 
character, while others, in their spirit of reform, were 
actually in advance of contemporary law in the mother- 
country. In the Puritan colonies of New England the 
Law of God gave a peculiar colour to the whole legal 
system ; while in all the colonies local customary law 
moulded, in important respects, the decisions of the 
courts and the colonial legislation. Not all the re- 
sources of imperial control possessed by Crown and 
Parliament could keep the growing American com- 
munities, with their novel conditions and special needs, 
within the strict confines of the legal system of the 
mother-country. 

Incorporated in this statutory law of the colonies 
were many principles of English constitutional law 
derived from the decisions of English courts and from 
the great charters and statutes of English liberty. Of 
special interest to us, in our present study, is the 
embodiment of various rights and liberties of Magna 
Carta in the colonial written law. Even in the 
Puritan colonies of New England, which in theory 
based their earlier legal system upon the Word of 
God, and which in fact of all the colonies departed 
furthest from English juridical models, we find im- 
portant features of Magna Carta placed in colonial 
legislative enactments. Indeed, in these and in other 
vital respects, English Common Law formed a greater 
element in Puritan law than the Puritans themselves 
at the time suspected, and than even present-day 
students of their system, attracted by the frequent 
citation of Scripture in decisions and statutes, are 
often-times aware. 1 The laws of all the colonies 

1 The remarks of Merriafn, " History of American Political Theories," 
1910, pp. 4, 5, might well serve as the starting-point in a detailed study 
of the laws of the Puritan colonies. 



192 THE INFLUENCE OF MAGNA CARTA 

deserve a long and detailed study with special refer- 
ence to their incorporation of the provisions of Magna 
Carta, but for our present purpose it must suffice to 
draw attention to illustrative instances of this process. 
In early Massachusetts the struggle for written 
laws, as opposed to the exercise of wide discretionary 
powers on the part of the executive and judicature, 
finally resulted in the enactment of the famous Body 
of Liberties. In the discussions that preceded this 
legislation, John Winthrop had argued, in his tract on 
"Arbitrary Government," that it was unwise to place 
too great a restraint upon judges, who should decide 
cases in accordance with divine justice as revealed 
in the Bible. Still, even Winthrop admitted that, 
for the purpose of restricting capital punishment and 
of making men's estates more secure against heavy 
fines, it would be well to have a general law like 
Magna Carta. The general position of the colonists 
was that their liberties were not safe from arbitrary 
power, because these liberties were not embodied in 
positive law. Winthrop, in his "History of New 
England," says: "The deputies having conceived 
great danger to our State in regard that our magis- 
trates for want of positive law in many cases might 
proceed according to their discretion, it was agreed 
that some men should be appointed to frame a body 
of grounds of law, in resemblance to a Magna Carta, 
v/hich being allowed by some of the ministers and the 
General Court, should be received for fundamental 
laws". Accordingly, at the General Court, 25 May, 
1636, it was ordered that a body of laws "agreeable to 
the word of God," to be the " Fundamentals of this 
Commonwealth," should be drawn up and submitted 
to the General Court. As a result of this action the 
Body of Liberties finally became the law of the colony 
in 1641. Although the Word of God figures promin- 



ON AMERICAN DEVELOPMENT 193 

ently in this code, the law-makers seem also to have 
followed in some sections the model of Magna Carta 
and of the English Common Law. Thus, for example, 
in its first section the Body of Liberties echoes the 
spirit of chapter thirty-nine of Magna Carta by declar- 
ing that, " No mans life shall be taken away, no mans 
honour or good name shall be stayned, no mans 
person shall be arested, restrayned, banished, dis- 
membred, nor any wayes punished, no man shall be 
deprived of his wife or children, no mans goods or 
estaite shall be taken away from him, nor any way 
indammaged under Coulor of law, or Countenance of 
Authoritie, unlesse it be by vertue or equitie of some 
expresse law of the Country warranting the same, 
established by a generall Court and sufficiently pub- 
lished, or in case of the defect of a law in any partecular 
case by the word of god. And in Capitall cases, or 
in cases concerning dismembring or banishment, 
according to that word to be judged by the General 
Court ", 1 

In 1646 there arose an important controversy as to 
the constitutional guaranties of the Body of Liberties 
and other Massachusetts laws, which involved a care- 
ful examination of the provisions of Magna Carta by 
the colonists. Certain residents of the colony, led by 
Robert Child, discontented largely by reason of the 
religious policy of the colonial authorities, addressed 
the General Court, declaring that a settled govern- 
ment in accordance with the laws of England did not 
appear to them to have been established, and that 
they did not feel secure in the enjoyment of their 
lives, liberties and estates as free-born English sub- 
jects. They petitioned, therefore, for the establish- 

a See, further, Osgood, op. cit. i. 180, 181, 193-5 ; Warren, op. cit. 
pp. 63, 64. For the text of the Body of Liberties, see Macdonald, 
op. cit. pp. 72-91. 

13 



i 9 4 THE INFLUENCE OF MAGNA CARTA 

ment of the wholesome laws of England, that they 
might thus be admitted to the liberties to which all 
free Englishmen were accustomed both at home and 
in the colonies. In their reply to the petitioners the 
General Court compared at length the provisions of 
the Body of Liberties with those of Magna Carta and 
the principles of the Common Law. The Court main- 
tained that this comparison demonstrated the fact, 
that English and colonial laws were in agreement in 
all fundamental particulars, and that indeed civil liberty 
in Massachusetts under the Body of Liberties was as 
well protected as it was in England under Magna 
Carta and the Common Law. The General Court 
also sent in 1646 an address to the Long Parliament 
in which it was declared, that the government of the 
colony was framed in accordance with the colonial 
charter and " the fundamental and common laws of 
England, and conceived according to the same taking 
the words of eternal truth and righteousness along 
with them as that rule by which all kingdoms and 
jurisdictions must render account of every act and 
administration in the last day ". They then tried to 
prove the truth of their statement by setting forth in 
parallel columns the fundamental and common laws 
of England and the laws of the colony. In this 
comparison Magna Carta was viewed by the General 
Court as the chief embodiment of English Common 
Law. 1 

Connecticut, following the example of Massachusetts, 
early enacted a law embodying fundamental rights 
and liberties ; and trial by jury, together with other 
English institutions and practices, became part of 
the colonial system. So too, in 1647, Rhode Island 

1 For further details of this controversy, see Reinsch, op. cit. i. 380. 
381 ; Osgood, op. cit. i. 256 et seq. ; Stevens, op. cit. p. 15 ; and the 
authorities cited in these works. 



ON AMERICAN DEVELOPMENT 195 

adopted a code of civil and criminal laws based in part 
upon English laws that were thought adapted to the 
needs of the colony. Prefixed to these " Lawes " was 
a reaffirmation of chapter thirty-nine of Magna Carta 
prohibiting arbitrary arrests and punishments, and a 
declaration that by law of the land (" lex terrae ") was 
meant the law enacted by the General Assembly of 
the colony itself not the law of England, unless 
adopted by the Assembly as colonial law. 1 

The New York " Charter of Liberties " of 1683 was 
the first statute enacted by the colonial legislature 
after the English conquest of Dutch New Netherlands. 
This statute, framed expressly for the colony by the 
Duke of York, secures a jury trial to all inhabitants 
of the colony and contains many of the provisions of 
Magna Carta, the Petition of Right, and the Habeas 
Corpus Act. Although the Charter of Liberties never 
received the royal assent, because it savoured too 
strongly of popular freedom and seemed to run counter 
to the Crown's prerogative and the legislative su- 
premacy of Parliament, yet the colonists always 
claimed that it was operative in protection of their 
constitutional liberties. 2 

The colonial Assembly of Maryland passed a bill 
in 1638 to recognize Magna Carta as a part of the law 
of the province. The Act expressly declared " that 
the inhabitants shall have all their rights and liberties 
according to the great charter of England ". The 
Act was, however, disallowed by the King, because 
the Attorney-General expressed himself as uncertain 
41 how far the enactment thereof will be agreeable 

1 Reinsch, op. cit. i. 388, 389 ; Osgood, op. cit. i. 357 ; Stevens, 
op. cit. p. 17. 

2 Warren, op. cit. p. 91 ; Osgood, op. cit. ii. 165-8. But, see 
Stevens, op. cit. p. 20, note i. 



196 THE INFLUENCE OF MAGNA CARTA 

to the constitution of this colony or consistent with 
the royal prerogative". 1 

In 1712 the colonial legislature of South Carolina 
by special Act adopted the English Common Law as 
a rule of adjudicature, and also one hundred and 
twenty-six English statutes selected by Chief Justice 
Trott as applicable to colonial conditions. Included 
among the English statutes thus put in force by the 
colonial legislature were Magna Carta and the other 
great English statutes which declared the rights and 
liberties of the subject. The similar adoption of 
English Common Law and Statutes was effected by 
the legislature of North Carolina in 171 5. 2 

A striking illustration of the attention paid to Magna 
Carta by colonial law-makers is found in the history 
of Virginia. In the middle of the seventeenth century 
a sharp controversy arose in this colony as elsewhere 
in America in regard to lawyers. In 1756 certain 
colonial Acts hostile to lawyers were repealed ; but in 
the following year a proposition for the ejection of 
lawyers was carried. Thereupon a new Act was passed 
by the legislature forbidding any person to plead or 
give advice in any judicial proceedings for reward. 
The governor and council did not look with favour on 
this Act, but they promised to give their assent to the 
measure, " so far as it shall be agreeable to Magna 
Carta ". An examination of the terms of Magna Carta 
was then made by a committee, who reported that 
they failed to discover in them any prohibition of the 
colonial legislation in question. 3 

These and other colonial Acts and Codes which might 
be instanced prove that the colonial legislatures, re- 
presenting in general the wishes of the colonists as 

^banning, op. cit. ii. 223, note I ; Stevens, op. cit. p. 18. 
3 Reinsch, op. cit. i. 407-8 ; Warren, op. cit. p. 119. 
3 Reinsch, op. cit. p. 406. 



ON AMERICAN DEVELOPMENT 197 

opposed to those of royal officials, embodied principles 
of English Common Law, including provisions of Magna 
Carta, the Bill of Rights, and other great constitu- 
tional statutes, in the written law of Englishmen within 
the over-sea provinces. In general colonial legisla- 
tion, which is an important feature of the working of 
early American self-government, was subjected to im- 
perial control by reason of the requirement that 
colonial Acts must receive the assent of the Crown 
acting through the royal governors and the executive 
authorities in England. That the royal veto, which 
remained in full vigour in the relations of the Crown 
to the colonies long after its disuse in respect to Acts 
of the English Parliament, was employed to safeguard 
the interests of the royal prerogative, is strikingly 
illustrated by the history of colonial Acts which em- 
bodied Magna Carta and other English legal guaran- 
ties of the rights and liberties of the subject. Attention 
has already been drawn to the fact that the Maryland 
Act of 1638 enacting Magna Carta was disallowed by 
the Crown because it might be inconsistent with the 
royal prerogative, and that the New York Charter of 
Liberties of 1683, embodying Magna Carta, the Peti- 
tion of Right, and the Habeas Corpus Act, never 
received the royal assent. Similarly, Sir John 
Somers, by reason of the fear that it might prejudice 
the royal prerogative and the legislative supremacy 
of Parliament, advised the disallowance of the Massa- 
chusetts Habeas Corpus Act on the ground that the 
right to that writ " had never been conferred on the 
colonists by a king of England " and that the guar- 
anty of a speedy trial in Magna Carta was inappli- 
cable to the status of colonists. 1 Various other Acts 
of colonial legislatures which merely repeated pro- 

l On Somers' opinion, see Channing, op. cit. ii. 223, note I. 



198 THE INFLUENCE OF MAGNA CARTA 

visions of Magna Carta were likewise vetoed by the 
Crown. 1 

It is clear that the exercise of the royal veto which 
always in theory, and many times in practice, acted as. 
a wholesome restraint upon unwise colonial legisla- 
tion and served to keep the law of the colonies in 
general harmony with English law worked injustice 
to the colonists and sought to deprive them of their 
rightful privileges and liberties as English subjects, 
including the guaranties of Magna Carta and other 
English constitutional statutes. The exercise of the 
royal veto, particularly when it encroached upon 
their rights and liberties as Englishmen, was irritating 
to the colonists, but proved in most, if not all, cases 
ineffective. By disregarding the royal veto, by enact- 
ing new measures essentially like the ones vetoed, 
and by other similar devices, the colonists practically 
nullified the royal prerogative of disallowance. 2 In 
effect, therefore, much of the colonial legislation which 
incorporated the principles of Magna Carta and other 
constitutional features of the Common Law, remained 
in force in the colonies. Indeed, the whole history of 
Magna Carta and English constitutional liberties as 

1 See Charming, op. cit. ii.,. 241, 242. Bancroft, in his "History 
of the Colonization of the United States" ("History of the United 
States," Edinburgh [1840], i. 417), remarks: "If the declaratory 
acts, by which every one of the colonies asserted their right to the 
privileges of Magna Carta, to the feudal liberty of taxation except with 
their own consent, were always disallowed by the crown, it was done 
silently, and the strife on the power of parliament to tax the colonies 
was certainly adjourned ". 

2 On the exercise of the royal veto in the colonies, see, further, 
Andrews, "Colonial Period," pp. 175-8; Channing, op. cit. ii. 
240-5 ; iii. 6. The disregard of the royal veto by the colonists is 
an excellent illustration of the way in which Englishmen in America, 
following the example of their kinsfolk at home, were "acquiring a 
' constitution ' by robbing the crown of its prerogatives ". See Andrews, 
op. cit. pp. 243, 244. 



ON AMERICAN DEVELOPMENT 199 

incorporated in the Acts and State Papers of the alter 
colonial period, the revolutionary epoch and the early 
national era, proves the persistence of the legal guar- 
anties of the English Constitution in America. For 
the maintenance of what they viewed as the rights of 
all Englishmen, the colonists were not only willing to 
face the Crown and Parliament in constitutional 
struggles, but also in armed conflict. When the time 
of their independence came, the people still insisted, 
as we shall see later, on the incorporation of their 
fundamental rights and privileges in the Federal and 
State Constitutions, the parts of these instruments con- 
taining the declaration of rights being known as " Bills 
of Rights ". 

4. It is worth noting that " Magna Carta " became 
a generic term which included various documents of 
special constitutional significance. Attention has al- 
ready been drawn to the fact that the Massachusetts 
Bill of Liberties of 1641 was framed, in Winthrop's 
words, " in resemblance to a Magna Carta ". The Act 
of the New York legislature of 1683, which was 
known as the "Charter of Liberties and Privileges," 
and the Pennsylvania " Charter of Privileges," which 
was the fundamental law of the province from 1701- 
1776 and the "most famous of all colonial constitu- 
tions," may also perhaps be reckoned in this category. 
The instructions issued by the Virginia Company in 
1618 to Sir George Yeardley as governor are known 
to Virginian writers as the " Great Charter " ; and the 
term is said to be found also in some of the land 
grants. But while this document was undoubtedly of 
great importance in the constitutional development of 
the colony, it is perhaps going somewhat too far to 
liken it to a Magna Carta. 1 The use of the term 
" Great Charter " is instructive, however, as showing 

1 On the Instructions of 1618, see Channing, op. cit. i. 203. 



200 THE INFLUENCE OF MAGNA CARTA 

the influence of Magna Carta upon legal terminology. 
Another illustration may be taken from the history of 
the Carolinas. In 1668 the proprietors of northern 
Carolina authorized the governor to grant land on 
the same terms and conditions as those that prevailed 
in Virginia. The colonists always referred to the in- 
strument containing this authorization as the "Great 
Deed of Grant " and regarded it as a species of Magna 
Carta. 1 

A point of even greater importance for our present 
purpose is that constitutional documents granted by 
colonial proprietors sometimes contain the clauses of 
Magna Carta itself. Thus, for instance, in the con- 
stitutions granted by the proprietors of New Jersey 
and Pennsylvania in the latter part of the seventeenth 
century, careful provision is made for the protection 
of personal liberty and of property and the familiar 
phrases of Magna Carta reappear. 2 

As a result of the constitutional struggles in Eng- 
land during the seventeenth century, the Petition of 
Right 3 and the Bill of Rights similarly served as 
models for colonial constitutional documents ; while, 
after the American Revolution, the " Bill of Rights," 

1 Channing, op. cit. ii. 16, 17. 

3 For further details, see Osgood, op. cit. ii. 192-3 ; Charming, op. 
cit. ii. 46, 56. 

As William Penn seems to have had a hand in the framing of all 
these documents which embody the phrases of Magna Carta, it is in- 
structive to observe that in 1670, when he was indicted in an English 
court for being present at an unlawful and tumultuous assembly in 
Gracechurch Street, and there addressing the people in contempt of the 
King and of his law and against his peace, Penn claimed for himself the 
rights of Englishmen as set forth in Magna Carta and its confirmations. 
Penn's case may be studied in the sixth volume of HowelFs "State 
Trials". Channing, op. cit. ii. 105, 106, gives a short account of it. 

3 Channing, op. cit. ii. 330, note 2, refers to a " Petition of Right " 
in colonial Pennsylvania. 



ON AMERICAN DEVELOPMENT 201 

in which fundamental civil rights and liberties are 
-declared, takes its place, as already observed, as an 
established feature of the constitutions of the federal 
and state Governments. 

Thus, the very names of Magna' Carta and the Bill 
of Rights were transmitted to America through the 
influence of the English Constitution : and terminology 
in this case, as so often in the history of institutions 
and laws, masked no mere shadow, but the very flesh 
and blood of living rights. 

5. Hitherto we have considered the embodiment of 
the principles of Magna Carta in the written law of 
the colonies in royal charters, colonial laws and 
codes, and colonial documents of constitutional signi- 
ficance. A further question suggests itself in regard 
to the unwritten law of the colonies : Were the pro- 
visions of Magna Carta incorporated in case-law ? In 
-a Massachusetts case of 1687 the defendant pleaded 
that Magna Carta and the statute-law " secure the 
subjects' properties and estates". To this one of the 
judges replied, the rest of the court by silence assent- 
ing, " We must not think the laws of England follow 
us to the 'ends of the earth". 1 But such a judicial 
utterance is characteristic of the general attitude of 
Massachusetts ' and of the other Puritan colonies. 
Their legal system, avowedly based on the Law of 
God, contained many English features, but only, in 
case they had been expressly adopted by the colonial 
authorities, were they viewed as binding. It was but 
natural, therefore, for the Massachusetts judges to 
declare that they were not bound by Magna Carta it- 
self, which as a complete document had never been 
adopted by the colony. But, through the Body of 
Liberties and possibly other colonial Acts certain 
provisions of Magna Carta were taken up into 
1 See Warren, op. cit. p. n. 



202 THE INFLUENCE OF MAGNA CARTA 

Massachusetts law. In general, we may say that prin- 
ciples of Magna Carta and the Common Law actually 
adopted by the legislatures of the colonies as their 
own law, undoubtedly bound the colonial courts, un- 
less such enactments had been effectively vetoed by 
the Crown ; and, in this connection, it should not be 
forgotten, as we have already observed, that the veto 
of the Crown often proved of no avail in checking the 
growth of colonial statutory law, even though that 
law seemed to the Crown to be infringing upon its 
prerogative. In colonies where Magna Carta was 
adopted as a complete instrument, and where the royal 
veto, if it was applied, proved ineffectual, it would 
seem that the courts must surely have applied its pro- 
visions in the cases that came before them. It has 
been impossible to examine the court records, many of 
them still in manuscript, from this point of view ; but 
it may be supposed that their careful study would dis- 
close many cases where the courts applied the colonial 
Magna Carta if one may be allowed the term just 
as they applied in general the principles of the colon- 
ial Common Law. It may well turn out, on further 
research, that in at least four distinct ways the courts 
embodied the principles of Magna Carta in colonial 
case-law : first, in cases interpreting and applying 
colonial legislation such as the Massachusetts Body 
of Liberties, the Rhode Island Code of 1647, and the 
New York Charter of Liberties of 1683, which con- 
tained certain provisions of Magna Carta ; secondly,, 
in cases interpreting and applying colonial Acts which 
adopted the whole text of Magna Carta; thirdly, in 
cases decided under colonial Acts which adopted the 
whole of the English Common Law as the rule of 
colonial adjudicature ; fourthly, and in general, in 
decisions of the many courts that were engaged, to- 
gether with other institutions of the colonies, in adopt- 



ON AMERICAN DEVELOPMENT 203 

ing and adapting, either consciously or unconsciously, 
such portions of the English law as best suited the 
legal requirements of the colonial communities. This 
view that colonial case-law will be found, on exam- 
ination, to embody principles of Magna Carta, is 
strengthened by the well-known fact that in judicial 
proceedings of the period parties frequently claimed 
the rights of "every free born English subject ".* 

6. There is abundant evidence that in the political 
and constitutional controversy of the colonial period 
the rights of the colonists as Englishmen played a 
vitally important part. In these disputes Magna Carta 
and other English statutory guaranties of the subject 
were relied upon as the source of political privilege 
and civil right. 2 

An illustration of this is to be found in the Dyer 
affair in New York during the governorship of 
Edmund Andros. Complaints as to the administration 
of Andros and even suggestions that New York 
officials had been guilty of peculation and extravag- 
ance, resulted in the Duke of York's summons to 
Andros in 1680 to return to England for the purpose 
of rendering an account of his doings. Before his 
departure from the colony Andros had neglected to 
renew the customs duties. Learning that the duties 
had thus legally expired, colonial merchants declined 
to pay the imposts which the Duke's collector, William 
Dyer, continued to levy. Having seized a vessel and 
her cargo Dyer was successfully sued by the owner 
for unlawfully detaining property which was not his 
own ; and he was also indicted for high treason, the 
indictment charging him with having "contrived in- 

1 For an instance of this, see Channing, op. cit. ii. 479. Cf. also 
p. 487- 

2 On political and constitutional controversy in the colonies, see 
Greene, op. cit. chaps, viii.-xi.; Channing, op. cit. ii. chaps, x., xi. 



204 THE INFLUENCE OF MAGNA CARTA 

novations in government and the subversion and 
change of the known, ancient, and fundamental laws 
of the Realm of England . . . contrary to the great 
Charter of Liberties, contrary to the Petition of Right, 
and contrary to other statutes in these cases made and 
provided ". On appealing his case to England, Dyer 
was successful there ; and Andros also exculpated 
himself. Despite all this, however, the colonists still 
refused to pay the duties levied on the authority of 
James. Channing, in his "History of the United 
States," has drawn attention to the fact that "this 
movement was the first colonial rebellion against tax- 
ation from England, and [that] the words of Dyer's 
indictment carry one backward to the times of the 
Puritan Rebellion in England and forward to the days 
of Otis, Henry, and Dickinson in America ". Looked 
at from the point of view of the rights of Englishmen 
away from home, the Dyer case is a striking instance 
of the colonists' dependence upon Magna Carta as the 
bulwark of their liberties. 1 

A further illustration may be taken from the history 
of Massachusetts. In this, as in other colonies, 
questions in regard to the governor's salary loom large 
in the political controversy of the times. The assembly 
of Massachusetts insisted on making temporary salary 
grants, thinking by this means to secure a real control 
over the governor's actions. The governor's con- 
tention, on the other hand, was that permanent 
provision should be made for his salary, thus ensuring 
his free judgment in matters of legislation, on the 
analogy of English provision for the Crown by a 
permanent civil list. In one of Governor Burnet's 
messages to the assembly in 1728 in regard to the 
salary question, he drew their attention to the pro- 

1 On the Dyer case, see Greene, op. cit. p. 38 ; Osgood, op. cit. ii. 
130, 131, i&3, 164 ; Channing, op. cit. ii. 60. 



ON AMERICAN DEVELOPMENT 205 

vision in the colonial charter that they were to pass 
wholesome and reasonable laws which were not 
harmful to the English Constitution. The members 
of the assembly caught up this reference to the charter 
and contended that the governor himself had thus 
admitted that they possessed the rights of Englishmen. 
In support of their contention they then proceeded to 
trace their rights as Englishmen not only to the 
English legislation of the Stuart and Tudor periods, 
but also to the English Constitution in the time of 
Edward I and Henry III, and even to Magna Carta 
itself. The exciting events that followed did not result 
in a settlement of the controversy in Burnet's time ; 
and only under his successor, Belcher, was it finally 
arranged that the governor, with the consent of the 
English Government, should receive an annual grant, 
to be voted at the beginning and not at the end of the 
sessions of the assembly. The course of this con- 
troversy thus forms an interesting chapter in the history 
of Magna Carta as the foundation of colonial rights in 
opposition to the claims of the Crown and of royal 
governors. 1 

7. The importation from England, as well as the 
colonial publication, of English statutes and docu- 
ments, law reports and juristic treatises, diffused, 
especially in the eighteenth century, a knowledge 
of the Common and Statutory Law, and thus acted as 
a very considerable factor in the extension of its 
principles including the principles of Magna Carta 
and the English Constitution throughout the colo- 
nies. 2 Prominent among the books in the hands of 

1 On the salary controversy in Burnet's time, see Channing, op. cit. 
ii. 292-4. On the salary question in the colonies generally, see Greene, 
op. cit. pp. 59-64, 78, 79, 117, 1 1 8, 167-76. See also ibid. pp. 119-121, 
on the part played by Magna Carta in the colonial regulations of 
officials' fees. 

2 Nearly all the law books of the colonists were imported from Eng- 
land ; only thirty-three were printed in America before 1776. 



206 THE INFLUENCE OF MAGNA CARTA 

the colonists were those dealing with the rights and 
liberties of Englishmen. Thus, among the first seven 
books printed in the colonies were Hawles' " The 
Englishman's Rights" (1693), Petyt's "Lex Parlia- 
mentaria" (1716), Somers' "The Security of English- 
men's Lives" (1720), and the fifth edition of Henry 
Care's " English Liberties or the Freeborn Subjects' 
Inheritance " (1721), the last of which contained Magna 
Carta, the Petition of Right, the Habeas Corpus Act, 
and various other English statutes, as well as some 
of the leading English constitutional decisions and a 
general account of the liberties of the subject, trial by 
jury, and other constitutional matters. Both in public 
and in private libraries were to be found copies of 
Year Books, English reports, Magna Carta and collec- 
tions of English statutes, and the classics of English 
literature, such as the works of Glanvill, Britton, 
Fortescue, Prynne, Bacon, Selden, Coke, Plowden, 
Hale, and Blackstone. 1 

In this way the printed text of Magna Carta and the 
commentaries of the English jurists upon that text 
played their own special part in the legal education 
of the colonists and thus in their adherence to the 
Charter's principles of constitutional liberty. One or 
two interesting facts will illuminate this textual power. 
Thus, in 1647, the Governor and Assistants of Mas- 
sachusetts ordered the importation of two copies each 
of Coke on Magna Carta and various other books of 
English law "to the end that we may have better 
light for making and proceeding about laws ". 2 As 
early as 1687 William Penn published at Philadelphia 

1 Full details of the importation and colonial publication of English 
legal texts and treatises will be found in Warren, op. cit. chaps, ii.-vi., 
viii., ix., xiv. See especially chap. viii. 

2 " Two Centuries' Growth of American Law," p. 13, note 3 ; Warren, 
op. cit. p. 71. 



ON AMERICAN DEVELOPMENT 207 

an edition of Magna Carta, the Confirmation of the 
Charters and the so-called Statute tie Tallagio non 
Concedendo, accompanied by an address to the reader 
wherein the colonists were exhorted "not to give 
away anything of Liberty and Property that at present 
they do ... enjoy, but take up the good example of 
our ancestors, and understand that it is easy to part 
with or give away great privileges, but hard to be 
gained if once lost ".* As a silent teacher of English 
notions of liberty, not only in Massachusetts and Penn- 
sylvania, but in the other colonies as well, the printed 
text of the Charter exerted its own unique influence 
upon the legal and political ideas and the actual in- 
stitutions of the Americans. 

8. Throughout the colonies there existed a deep 
distrust of the legal profession. Most of the colonial 
judges were laymen ; and there was much colonial 
legislation hostile to lawyers as a class. In the course 
of the eighteenth century, however, the legal profes- 
sion, many of its members trained in the English Inns 
of Court and in American Colleges, began to take a 
more prominent part in colonial affairs. During the 
revolutionary epoch lawyers played a leading role in 
political and constitutional controversy ; while in the 
early days of independence, when the Federal and 
State Constitutions were drafted and adopted and the 
laws and institutions of the youthful Republic were 
moulded to fit the new conditions, some of the fore- 
most statesmen and judges were lawyers of high dis- 
tinction. 2 

The rise of a legal profession introduced a new and 
powerful factor in the growth of American legal ideas. 

1 Osgood, op. cit. ii. 253 ; Warren, op. cit. p. 103. 

*On the history of the legal profession in America before 1789, see 
Warren, op. cit. pp. 1-238; "Two Centuries' Growth of American 
Law," pp. 13-17, 265, 266. 



208 THE INFLUENCE OF MAGNA CARTA 

Learned in the principles of English Common Law 
and in English constitutional ideas and practices, the 
early American lawyers exerted a professional a 
legal influence upon American development; and 
their share in the work of incorporating the principles 
of Magna Carta in colonial and revolutionary docu- 
ments and in the constitutions of the federal era must 
have been considerable. 

Without pursuing this special topic further, in the 
present connection, we may yet note in a general way 
the services of the early American lawyers in the cause 
of the rights and liberties of the people. Warren, in 
his " History of the American Bar," expresses the 
main point in these words: "The influence, on the 
American Bar, of these English-bred lawyers . . . was 
most potent. The training which they received in the 
Inns, confined almost exclusively to the Common Law r 
based as it was on historical precedent and customary 
law, the habits which they formed there of solving all 
legal questions by the standards of English liberties 
and of rights of the English subject, proved of immense 
value to them when they became later (as so many did 
become) leaders of the American Revolution. " l Again, 
in another place, Warren remarks : " The services ren- 
dered by the legal profession in the defence and main- 
tenance of the people's rights and liberties, from the 
middle of the Eighteenth Century to the adoption of 
the Constitution, had been well recognized by the 
people in making a choice of their representatives ; 
for of the fifty-six Signers of the Declaration of In- 
dependence, twenty-five were lawyers ; and of the 
fifty-five members of the Federal Constitutional Con- 
vention, thirty-one were lawyers, of whom four had 
studied in the Inner Temple and one at Oxford, under 
Blackstone. In the First Congress, ten of the twenty- 
1 Op. cit. p. 1 88. 



ON AMERICAN DEVELOPMENT 209 

nine Senators and seventeen of the sixty-five Repre- 
sentatives were lawyers." 1 

II. 

By the close of the colonial period principles of 
Magna Carta, adapted to social and political conditions 
in the American communities, had become firmly em- 
bedded in their systems of law and government. In 
the revolutionary epoch extending from 1760-1783 
these principles, as part of the whole body of 
English Constitutional Law claimed by the colonists 
as English subjects, were to enter upon a new phase 
of their American history. 

The years that immediately preceded the outbreak 
of war in 1775 and the Declaration of Independence 
in 1776 were characterized by a momentous contro- 
versy between the colonies and the mother-country 
over constitutional principles. Ihe doctrine that the 
colonists had all the rights of Englishmen had more 
and more strenuously asserted itself throughout the 
eighteenth century. At last the claims of the colon- 
ists were largely focussed in the demand that there 
should be no taxation without representation, a prin- 
ciple which they held to be based on firm English 
foundations. As the controversy increased in inten- 
sity the colonists appealed less to the guaranties of 
the royal charters and more .and more to the principles 
of the Common Law especially the principles con- 
tained in Magna Carta, the Bill of Rights, and other 
documents of English liberty in support of the views 
which they so strenuously asserted in opposition to 
the position taken up by Crown and Parliament. In 
the ten years just before the war there was indeed 
a marked tendency, evidenced by all the great State 
Papers, such as the Massachusetts Circular Letter of 

1 Op. cit. p. 211. 

14 



210 THE INFLUENCE OF MAGNA CARTA 

1768, the Virginia Resolutions of 1769, the Declaration 
and Resolves of the First Continental Congress of 
1774, the Declaration of the Causes and Necessity of 
Taking up Arms (I775), 1 and the Declaration of In- 
dependence (1776) itself, 2 to base colonial rights on 
political and legal fundamentals to be found in the 
Law of Nature and the English Constitution. The 
colonists looked upon the English Constitution as 
their own and revered it as the embodiment of their 
rights. The " common rights of Englishmen " formed 
the shield behind which they resisted what they held 
to be attempts upon their liberties. When the war 
at last came, it was fought out by the colonists in 
defence of what they held these rights to be rights 
won in England in the long struggle for the rule of 
law and embodied in the doctrines of Common Law, 
especially in the principles of Magna Carta, the Bill 
of Rights, and other English documents that visualized 
for the colonists their claims for freedom as opposed 
to tyranny. Thus it resulted that the controversy 
between England and her colonies and the war that 
followed it were largely caused by differences of 
opinion as to constitutional and legal questions, and 
that in the struggle of the colonists for what they 
looked upon as their rights, Magna Carta, as one of 
the fundamentals, as a part of the legal inheritance, 
the " birth right," of Englishmen at home and in the 
colonies, played a role of great prominence. 3 

1 For the texts of these documents, see Macdonald, op. cit. pp. 330-5, 
356-61, 374-81. 

2 The text will be found in Macdonald, "Documentary Source Book 
of American History, 1606-1898," 1908, pp. 190-4. 

3 On the political and constitutional controversies of the revolution- 
ary epoch, see, further, "Cambridge Modern History," vii. 1905, chap. 
v. : "The Quarrel with Great Britain 1761-1776," (Doyle), chap. vi. : 
"The Declaration of Independence, 1761-1776" (Bigelow), chap. viii. : 
"The Constitution, 1776-1789" (Bigelow) ; Channing, op. cit. iii. (1912) 



ON AMERICAN DEVELOPMENT 211 

In considering the constitutional aspects of the re- 
volutionary epoch it should never be forgotten that 
since the early eighteenth century the institutions of 
England and of the colonies had been drifting apart, 
and that the colonists, unlike their kinsfolk in the 
mother-country, did not recognize the doctrine of the 
supremacy of Parliament as an imperial legislature. 
In one highly important point, therefore, we find that 
the American Revolution was like the English Re- 
volution of 1688. In England powers of the King, 
asserted to be based on legitimate foundations, were 
destroyed. In America powers of Parliament, un- 
questionably legal in character, were forcibly repudi- 
ated. 1 Fundamental differences of opinion in regard 
to the authority of Parliament naturally affected the 
views of Englishmen at home and in the colonies as 
to the nature of constitutional rights and liberties and 
the interpretation to be placed upon constitutional 
documents such as 'the Great Charter and the Bill of 
Rights. 

"The American Revolution, 1761-1789" (also Channing, "The United 
States of America," 1896, chap, ii.) ; Stevens, op. cit. chap. ii. ; "Two 
Centuries' Growth of American Law," pp. 9-47 ; Merriam, op. cit. 
chap, ii., Hi. 

The American theory was summed up by Otis in one of the earliest 
(1764) political pamphlets of the Revolution : " Every British subject, 
born on the continent of America, is, by the laws of God and Nature, 
by the Common Law, and by Act of Parliament entitled to all the 
natural, inherent, and inseparable rights of our fellow subjects in 
Great Britain" (see Channing, "The United States of America," p. 45). 
To what extent, if any, Magna Carta alone and of itself gave the 
colonists a basis for their version of the principle that there should be 
no taxation without representation may be seen by a perusal of 
McKechnie, "Magna Carta" (second edition), 1914, pp. 231-40. 

1 See, further, Mcllwain, " High Court of Parliament and its 
Supremacy," 1910, p. 366; Channing, "History of the United States," 
iii. I, 12 ; Merriam, op. cit. chap. ii. 



212 THE INFLUENCE OF MAGNA CART A 

III. 

In respect of private law the Revolution resulted in 
no break with the past. After, as before the Revolu- 
tion, the Common Law, adapted and modified by its' 
American environment, formed the general basis of 
private rights ; and this feature of American law 
survives to the present day. So, too, in the matter 
of constitutional institutions, the Revolution made less 
difference than is sometimes imagined ; for, in many 
of their main characteristics, the Federal and State 
Governments of the national 'era followed precedents 
of the colonial and revolutionary epochs. Thayer, in 
his essay on the "American Doctrine of Constitutional 
Law," sums up the Revolution in two short sentences : 
"The Revolution came, and what happened then? 
Simply this : we cut the cord that tied us to Great 
Britain, and there was no longer an external sove- 
reign." That the Federal and State Constitutions con- 
tained vitally important features that were distinctively 
American, as opposed to English, is one of the common- 
places of political history. The institutional diver- 
gence from English models which set in, as we have 
already observed, during the early eighteenth century 
was sure to produce ultimate results very different 
from some of the leading features of the English 
Constitution. The federal nature of the Union, the 
sanctity of the written constitution as a document 
embodying the fundamental law, the co-ordination 
of the legislature, executive, and judicature as the 
three departments of Goverment which operate in 
distinct spheres and enjoy equality of position, the 
remarkable power of the judicature to declare an Act 
of the legislature that conflicts with the written con- 
stitution null and void these are four of the main 
characteristics which mark a wide gulf between 



ON AMERICAN DEVELOPMENT 213 

American constitutional institutions and the un- 
written Constitution of England, under which Magna 
Carta and the Bill of Rights, although of fundamental 
significance, are yet subject, like any ordinary statute 
and the decisions of the courts, to the legislative 
sovereignty of Parliament. But, in at least one 
highly important respect the American Constitutions 
display a striking adherence to the traditions of the 
English Constitution. In the " Bill of Rights," which 
forms a part of each of the written constitutions, both 
State and Federal, there is a persistence of those funda- 
mental rights of Englishmen embodied in Magna Carta, 
the Bill of Rights of 1689, and other leading sources 
of the Common Law. This whole development is 
summarized by Sir Frederick Pollock in one sentence 
of " The Genius of the Common Law " : " Our fathers 
laboured and strove chiefly in the field of Crown law 
to work out those ideals of public law and liberty 
which are embodied in the Bill of Rights and are 
familiar to American citizens in the constitutions of 
the United States and of their several common- 
wealths ". It is this American Bill of Rights, forming 
an important element in constitutional law, as dis- 
tinct from constitutional institutions, which chiefly 
links the American Constitutions of to-day with the 
Magna Carta of 1215. 

i. As the direct descendants of the royal colonial 
charters, these charters being based on still earlier 
models, the State Constitutions are the oldest feature 
of American political life. Nearly all of the original 
thirteen colonies, when they declared their independ- 
ence and framed their State Constitutions, included 
in these documents, as perhaps their most important 
feature, a declaration of the fundamental rights and 
liberties of man. Most of the clauses of this declara- 
tion, known collectively as the Bill of Rights, were 



2i 4 THE INFLUENCE OF MAGNA CARTA 

taken over from colonial and revolutionary laws and 
constitutional documents, the contents of which, in 
turn, as we have already seen, had been derived origin- 
ally, in important particulars, from Magna Carta, the 
Bill of Rights and other great constitutional statutes 
which secured the liberties of Englishmen. As new 
States have been admitted into the Union from time 
to time, they too have embodied a Bill of Rights in 
their constitutions. In this way, therefore, the Bill 
of Rights of the State Constitutions traces its pedigree 
back to Magna Carta. In each separate State of the 
Federal Republic, as in England, the Great Charter 
of 1215 still exists, protecting men in their lives, 
liberties, and estates from the encroachments of 
arbitrary or tyrannical government. 1 

Naturally the State Constitutions vary in the form 
of words chosen to express the rights and liberties 
derived from Magna Carta. Some constitutions, more 
especially, perhaps, the earlier ones, follow the original 
model closely; others are couched in terms more 
suited to American conditions. But the main features 
of the original are in all cases retained in the American 
derivations. So, too, the constitutions vary one from 
the other in the extent to which they borrow from 
the Great Charter. Some take more and some less ; 

J Bryce, "American Commonwealth," 1910, i. 426-63, gives a 
summary account of State Constitutions and their history. On p. 438 
he says : " The Bill of Rights is historically the most interesting part 
of these [State] Constitutions, for it is the legitimate child and representa- 
tive of Magna Carta, and of those other declarations and enactments, 
down to the Bill of Rights of the Act of I William and Mary, session 2, 
by which the liberties of Englishmen have been secured". Bryce 
refers (p. 447, note i) to a remarkable decision of Chancellor Kent 
of New York, in which the great jurist proceeded upon the broad 
general principle which he found in Magna Carta. Dicey, " Law of the 
Constitution", 1915, p. 195, note i, contrasts the English and American 
Bills of Rights with similar declarations in continental countries. 



ON AMERICAN DEVELOPMENT 215 

but in all are to be found, in one phrasing or another, 
the essence of chapter thirty-nine. 1 Thus, to cite 
only one illustration, in section sixteen of the Con- 
stitution of the new State of Oklahoma (1907), chapter 
thirty-nine of Magna Carta appears in the phrasing, 
" No person shall be deprived of life, liberty, or 
property, without due process of law ". 2 

2. The Federal Constitution of 1789, including the 
Amendments of 1791 and of later times, is likewise 
derived in part from the colonial charters and from 
other constitutional and legal sources of the colonies 
and of England. In Lord Bryce's felicitous words : 
u The American Constitution is no exception to the 
rule that everything which has power to win the 
obedience and respect of men must have its roots deep 
in the past, and that the more slowly every institution 
has grown, so much the more enduring is it likely to 
prove. There is little in this Constitution that is ab- 
solutely new. There is much that is as old as Magna 
Carta." 3 

The Constitution of 1789 embodies, in one article 
or another, various declarations of the fundamental 
rights of men. Thus, for example, it provides for 
taxation by the legislature only, for the privilege of 
the writ of habeas corpus, for trial by jury in criminal 
cases, for the prohibition of bills of attainder, ex-post 
facto laws, laws impairing the obligation of contracts, 
and laws imposing religious tests. These and other 
provisions, derived in large measure from English and 

1 See Dillon, " Laws and Jurisprudence of England and America," 
1894, p. 207. 

2 The text of the Constitution of Oklahoma will be found in Bryce, 
op. cit. i. 718-41. See the comments of Frankfurter ("Harvard 
Law Review," xxviii. 790-3) on the Bill of Rights of the State 
of New York in the light of present judicial and legislative tendencies. 

3 Bryce, op. cit. i. 28. 



216 THE INFLUENCE OF MAGNA CARTA 

colonial precedents, constitute a body of constitutional 
guaranties of the highest value. 

But the absence of a formal Bill of Rights similar 
to the one included in State Constitutions was at 
once severely criticized by the people as a feature of 
the Constitution dangerous to their liberties. 1 In 
response to persistent demands, ten Amendments, 
taking effect in 1791, were added to the original in- 
strument. These first ten Amendments, which are to 
be viewed as a supplement or postscript to the original 
Constitution, and not as an alteration of it, make up 
what is called, after the English and earlier American 
precedents, the Declaration or Bill of Rights. In 
essence this Bill of Rights secures the rights and 
liberties of the individual citizens and the separate 
states against the encroachments of the Federal 
Government. 2 Although each of the Amendments 
added to the Constitution after 1791 demands separate 
consideration, both in respect to its general scope and 
the place it holds in the whole body of the Constitu- 
tion, yet we may regard the Thirteenth, Fourteenth 
and Fifteenth Amendments, in certain of their funda- 
mental characteristics, as later additions to the Bill of 
Rights contained in the first ten Amendments. 

It is said that the people regarded the liberties 
embodied in the first ten Amendments as their own, 

1 Some of the leading statesmen held the same view. Thus, 
Jefferson said : " I hope that a Declaration of Rights will be drawn 
up to protect the people against the Federal government, as they 
are already protected in most cases against the State governments". 
Jefferson seems to have had in mind the Bill of Rights embodied in 
State Constitutions. 

2 Stevens, op. cit. pp. 211-14; Bryce, op. cit. i. pp. 27, 367. The 
text of the Federal Constitution, including all the Amendments, will be 
found in Bryce, op. cit. i. 706-18 ; Macdonald, "Documentary Source 
Book of American History, 1606-1898," pp. 216-32,494, 536-8, 546, 
547- 



ON AMERICAN DEVELOPMENT 217 

because they were based on old English law. 1 Cer- 
tainly a study of the Amendments reveals the fact that 
the origin of some of their features is to be traced to 
the Common and Statutory Law of England. Certain 
of their clauses are undoubtedly based directly, or 
indirectly, through colonial and revolutionary pre- 
cedents, upon Magna Carta, the Bill of Rights, and 
other English constitutional documents. Thus, upon 
Magna Carta rests the provision in the Fifth Amend- 
ment that no person " shall be deprived of life, liberty, 
or property, without due process of law". Similarly, 
the Fourteenth Amendment (1868), in declaring that 
no State shall "deprive any person of life, liberty, or 
property, without due process of law," adopts, like 
the Fifth Amendment, the thirty-ninth chapter of 
Magna Carta. The last clause of the First Amend- 
ment, which provides that Congress shall make no 
law abridging the right of the people " to petition the 
Government for a redress of grievances," seems to go 
back for its origin through various American docu- 
ments to the English Bill of Rights. So, also, upon 
the English Bill of Rights is based the Second Amend- 
ment, which declares that "a well-regulated militia 
being necessary for the security of a free state, the 
right of the people to keep and bear arms shall not 
be infringed ". In the words of Judge Cooley : ''The 
amendment, like most other provisions in the Con- 
stitution, has a history. It was adopted with some 
modification and enlargement from the English Bill 
of Rights . . . where it stood as a protest against 
arbitrary action of the overturned dynasty in disarm- 
ing the people, and as a pledge of the new rulers 
that this tyrannical action should cease." Again, the 
Eighth Amendment is almost an exact transcript of 
the clause in the English Bill of Rights which pro- 

1 Stevens, op. cit. pp. 213, 214. 



218 THE INFLUENCE OF MAGNA CARTA 

vides " That excessive Baile ought not to be required 
nor excessive Fines imposed nor cruell and unusuall 
Punishments inflicted ". The Eighth Amendment 
reads ; " Excessive bail shall not be required, nor ex- 
cessive fines imposed, nor cruel and unusual punish- 
ments inflicted ". 1 

These and other provisions in the Federal Consti- 
tution rest upon the Constitutional Law of England. 
Magna Carta's contribution to the federal instrument, 
and to the State Constitutions, consists fundamentally 
in the adaptation of the famous chapter thirty-nine to 
meet American conditions. This chapter had been 
embodied in colonial law. By its incorporation in 
State Constitutions and in the Fifth and Fourteenth 
Amendments to the Federal Constitution it still serves 
as the basis of the rule of law throughout the Re- 
public. 

3. Legal and historical accuracy may well be placed 
in jeopardy by considering the " due process of law " 
clauses apart from their full setting in the Amendments 
and in the whole scheme of fundamental law as set 
forth in the complete federal instrument. But, with 
this caution, a few words, in explanation of the mean- 
ing and scope of the clauses, may be ventured. 

The last words of the Fifth Amendment (1791) 
declare that "no person shall be deprived of life, 
liberty, or property without due process of law ; nor 
shall private property be taken for public use without 
just compensation ". The last portion of section one 
of the Fourteenth Amendment (1868) reads : " no State 
shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of 

1 See, further, Cootey, op. cit. p. 281 ; Stevens, op. cit. pp. 222-4, 230,, 
2 3 2 2 33- Some of the American precedents of the colonial and revolu- 
tionary periods will be found in Macdonald's collections of sources. 



ON AMERICAN DEVELOPMENT 219 

life, liberty, or property without due process of law ; 
nor deny to any person within its jurisdiction the 
equal protection of the laws ". American political 
and constitutional history of absorbing interest and 
moment surrounds every word of these due process of 
law clauses. Suffice it here to say that the prohibition 
of the Fifth Amendment was introduced as a check 
upon the Federal Government as distinct from the State 
Governments ; while in the Fourteenth Amendment, 
adopted after the great Civil War between the North 
and the South, the prohibition is directed against the 
individual States that compose the Union Thus the 
two Amendments, under the dual government insep- 
arably incident to American federalism, supplement 
one the other. Together the Amendments ensure to 
the people their individual rights to life, liberty, and 
property under the rule of law as opposed to arbitrary 
and tyrannical action on the part of either State or 
Federal Governments. 

The due process of law clause of the Fourteenth 
Amendment represents, therefore, the latest obligation 
of America to Magna Carta. Indeed, as Judge Dillon, 
in commenting on the constitutional guaranties of 
the two Amendments, remarks: "This was not new 
language, or language of uncertain meaning. It was. 
taken purposely from Magna Carta. It was language 
not only memorable in its origin, but it had stood for 
more than five centuries as the classic expression 
and as the recognized bulwark of the 'ancient and 
inherited rights of Englishmen ' [Burke] to be secure 
in their personal liberty and in their possessions. It 
was, moreover, language which shone resplendent with 
the light of universal justice; and for these reasons it 
was selected to be put into the Fifth Amendment of 
the Federal Constitution, as it had already been put 
into the charters and constitutions of the several 



220 THE INFLUENCE OF MAGNA CARTA 

States ... It was of set purpose that [the prohibi- 
tions of the Fourteenth Amendment] were directed to 
any and every form and mode of State action [as op- 
posed to Federal action] whether in the shape of 
constitutions, statutes, or judicial judgments that de- 
prived any person, white or black, natural or corporate, 
of life, liberty, or property, or of the equal protection 
of the laws. Its value consists in the great funda- 
mental principles of right and justice which it embodies 
and makes part of the organic law of the nation . . . [It] 
will hereafter, more fully than at present, be regarded 
as the American complement of the Great Charter, 
and be to [America] as the Great Charter was and is 
to England the source of perennial blessings." 

The Supreme Court of the United States has never 
attempted to give a rigid and complete definition of 
" due process of law ". The policy of the Court has 
been expressed in the recent case of Twining v. New 
Jersey:* "This Court has always declined to give a 
comprehensive definition of it, and has preferred that 
its full meaning should be gradually ascertained by 
the process of inclusion and exclusion in the course of 
the decisions of cases as they arise. There are cer- 
tain general principles, well settled, however, which 
narrow the field of discussion, and may serve as helps 
to correct conclusions. These principles grow out 
of the proposition universally accepted by American 

1 Dillon, op. cit. pp. 208-12. Adams, "Origin of the English Con- 
stitution,". 1912, p. 243, in commenting on chapter thirty-nine of 
Magna Carta, remarks : " What was then [1215] demanded was a trial 
according to law and securing to them [the barons] their legal rights. 
Taken in this sense clause 39 of Magna Carta would correspond 
somewhat closely to the general prohibition included in Amendment 
XIV to the Constitution of the United States: 'nor shall any State 
deprive any person of life, liberty, or property without due process of 
law'." 

2 (1908) 211 U.S. 78, 100, 28 Sup. Ct. 14. 



ON AMERICAN DEVELOPMENT 221 

courts on the authority of Coke, that the words 
' due process of law ' are equivalent in meaning to the 
words * law of the land,' contained in that chapter of 
Magna Carta which provides that * no freeman shall 
be taken, or imprisoned, or disseized, or outlawed, 
or exiled, or any wise destroyed ; nor shall we go 
upon him, nor send upon him, but by the lawful 
judgment of his peers, or by the law of the land '." In 
Hagar v. Reclamation Dist. 1 the Court had already 
expressed the view that the meaning of "due process 
of law " is that " there can be no proceeding against 
life, liberty, or property which may result in depriva- 
tion of either, without the observance of those general 
rules established in our system of jurisprudence for 
the security of private rights ". So, too, in Bank of 
Columbia v. Okely * it was said : " As to the words from 
Magna Carta, after volumes spoken and written with 
a view to their exposition, the good sense of mankind 
has at length settled down to this : that they were 
intended to secure the individual from the arbitrary 
exercise of the powers of government, unrestrained by 
the established principles of private right and distribu- 
tive justice ". 3 

Although the due process of law phrase is thus his- 
torically derived from and closely related to the phrase 
per legem terrae of Magna Carta, nevertheless, in the 
application of the clause to the institutions of govern- 
ment in the two countries, there is a marked differ- 

1 (1884) in U.S. 701, 708, 4 Sup. Ct. 663. 

2 (1819) 17 U.S. 235, 244. 

3 The literature upon the due process of law clauses is very volumin- 
ous. The main points are considered by Cooley, op. cit. pp. 229-38 ; 
Willoughby, "Constitutional Law of the United States," 1910, ii. 
460-76 ; Hall, "Constitutional Law," 1911, 144-9 J Guthrie, " Magna 
Carta and other Addresses," 1916, pp. 1-26. See also the addresses 
before the New York State Constitutional Convention in 1915 ("Ex- 
ercises in Commemoration of the Seven Hundredth Anniversary of 
Magna Carta," Albany, 1915). 



222 THE INFLUENCE OF MAGNA CARTA 

ence between the Constitution of England and that 
of America. In England the provisions of Magna 
Carta, including chapter thirty-nine, were originally 
intended, and have since been regarded, as a limitation 
upon the executive and judicature, not upon the legis- 
lature. In English law chapter thirty-nine is held to 
mean that no person is subject to the arbitrary acts of 
the Crown or its Courts that no person shall be de- 
prived of his life, liberty, or property unless in accord- 
ance with the existing law of the land, whether it be 
Common Law or Statutory Law. Parliament is not 
affected by the limitations imposed on the Crown and 
the Courts. Legally the Parliament is the sovereign 
power and can at any moment alter the law of the 
land by its enactments ; the rights of the individual 
are in theory and in practice subject to the supreme 
legislative power of Parliament. 1 

As this legislative supremacy of Parliament was 
fully established by the time of the adoption of the 
Fifth and Fourteenth Amendments, it might be con- 
tended that historically their due process of law 
clauses were not intended to operate as a limitation 
upon the powers of the State legislatures and of the 
Federal Congress. But American Constitutional Gov- 
ernment, both State and Federal, is based on written 
instruments, which, in the sphere of political and legal 
activity, are fundamental and supreme, though subject, 
of course, to the principle that they may be amended 
by the people acting through the machinery which the 
constitutions themselves provide. In vital differences 
between the English unwritten Constitution and the 
American written Constitutions we must seek for 
the explanation of certain features of American diver- 
gence from English precedents. In result the general 
purpose of written Constitutions in America has 

1 See Willoughby, op. cit. ii. 469. 



ON AMERICAN DEVELOPMENT 223 

gradually come to be entirely different from the pur- 
pose of Magna Carta and the other great constitu- 
tional documents of England. In America, to employ 
Willoughby's careful analysis, " written instruments 
of government and their accompanying Bills of 
Rights have for their aim the delimitation of the 
powers of all the departments of government, the 
legislative as well as the executive and judicial, 
and it is, therefore, quite proper to hold that the re- 
quirement of due process of law should not only 
prohibit executive and judicial officers from proceed- 
ing against the individual, except in conformity with 
. . procedural requirements . . . but also operate to 
nullify legislative acts which provide for the taking of 
private property without compensation, or life and 
liberty without cause, or, in general, for executive or 
judicial action against the individual of an arbitrary 
or clearly unjust and oppressive character". l 

By a long and careful process of judicial construc- 
tion the prohibitions of the due process of law clauses 
have thus come to be applied to all three departments 

1 Willoughby, op. cit. ii. 469, 470. On the general character of 
the American Written Constitution, see Bryce, " Studies in History and 
Jurisprudence," 1901, i. 145-254. See also Bryce, "American Com- 
monwealth," i. pt. i. ; and Dicey, op. cit. pp. 134-76, on the American 
doctrine of the supremacy of the Written Constitution. On English 
constitutional history in its relation to the American limitation of the 
powers of legislative bodies and to " that peculiar feature of the Ameri- 
can unwritten constitution, the power of the judiciary to declare laws 
regularly adopted to be void because unconstitutional," see the sug- 
gestive comments of Adams, op. cit. p. 42. On this power of the 
American courts, see, further, Kent, "Commentaries on American 
Law," 1896, i. 448-54 ; Thayer, "John Marshall," 1901, pp. 72 et seq., 
and "Legal Essays," 1908, pp. 1-41. Dicey, op. cit. p. 196 note, 
has only one of the three departments of government in mind when he 
remarks that the American Bills of Rights have the " distinct purpose 
of legally controlling the action of the legislature by the Articles of the 
Constitution " 



224 THE INFLUENCE OF MAGNA CARTA 

of the State and Federal Governments the legislative 
no less than the executive and judicial. The Supreme 
Court of the United States in the leading case of 
Hurtado v. California 1 decided in 1884, emphasizes the 
fundamental distinction between the constitutional 
doctrines of England and of America, and shows that 
the provision of Magna Carta has been incorporated 
into American Constitutional Law, but incorporated in 
a way which brings it into harmony with American 
notions not only of the supremacy of the written 
Constitution and of the co-ordination of the three de- 
partments of government under that Constitution, but 
of the great power entrusted to the courts of declaring 
legislative Acts which conflict with the Constitution 
null and void. In this case the Court say " The 
concessions of Magna Carta were wrung from the 
King as guaranties against the oppressions and usurpa- 
tions of his prerogative. It did not enter into the 
minds of the barons to provide security against their 
own body or in favour of the Commons by limiting 
the power of Parliament ; so that bills of attainder,. 
ex post facto laws, laws declaring forfeitures of estates, 
and other arbitrary acts of legislation which occur so- 
frequently in English history, were never regarded as 
inconsistent with the law of the land ; for notwith- 
standing what was attributed to Lord Coke in Bon- 
ham's Case* the omnipotence of Parliament over the 
common law was absolute, even against common right 
and reason. The actual and practical security for 
English liberty against legislative tyranny was the 
power of a free public opinion represented by the 
commons. In this country written constitutions were 
deemed essential to protect the rights and liberties of 
the people against the encroachments of power dele- 
gated to their governments, and the provisions of 
1 (1884) no U.S. 516, 4 Sup. Ct. in. <J 8 Rep. 115, uSa.. 



ON AMERICAN DEVELOPMENT 225 

Magna Carta, were incorporated into Bills of Rights. 
They were limitations upon all the powers of govern- 
ment, legislative as well as executive and judicial . . . 
Applied in England only as guards against executive 
usurpation and tyranny, here they have become bul- 
warks also against arbitrary legislation ; but, in that 
application, as it would be incongruous to measure 
and restrict them to the ancient customary English 
law, they must be held to guarantee, not particular 
forms of procedure, but the very substance of in- 
dividual rights of life, liberty and property." l 

IV. 

The history of Magna Carta in America has a 
meaning far deeper than the influence of a single con- 
stitutional document ; for Magna Carta typifies those 
ideals of law and government which have spread to 
America and to many other political communities that 
lie beyond the four seas encircling the island-realm 
itself. The world-wide diffusion of those ideals of 
liberty and justice deserves to be studied in its entirety, 
as a vast historical process which had its beginnings 
far back in/the middle ages, and which has shaped and 
is still shaping in modern times the institutions of all 
the political commonwealths that owe their spiritual 
inheritance to England. The history of the Charter's 
influence upon American constitutional development, 
as one phase of that vaster process, should be illumin- 

1 Hall, op. cit. p. 133; Willoughby, op. cit. ii. 470. For further 
views of the Supreme Court in regard to the "law of the land" of 
, Magna Carta and the "due process of law" clauses of the Amend- 
ments, see Hall, op. cit. p. 132. A recent decision of the Supreme 
Court upon due process of law (Frank v. Magnum (1915) 237 U.S. 
309, 35 Sup. Ct. 582), which promises to become a cause c'debre, is 
discussed in the "Harvard Law Review," xxviii., 1915, pp. 793-5. 

15 



226 THE INFLUENCE OF MAGNA CARTA 

ating alike to subjects of the Crown and citizens of the 
Republic. Above all it teaches them that English 
political and legal ideals lie at the basis of much that 
is best in American institutions. Those ideals, jealously 
preserved and guarded by Americans throughout their 
whole history, still form the vital force in political 
thought and activity within the Union. As the 
Americans adapt their institutions to the ever-changing 
conditions of national and international life, those 
ideals of liberty and justice, founded upon the Great 
Charter, will continue to inspire and guide them. The 
Charter has a future as well as a past in the American 
commonwealth, for its spirit is inherent in the aspira- 
tions of the race. 



MAGNA CARTA AND SPANISH MEDIAEVAL 
JURISPRUDENCE. 

BY PROF. RAFAEL ALTAMIRA. 

(Translated by F. A. KIRKPATRICK, M.A., F.R.Hist.S.) 
I. 

To an historian of Spanish Constitutional Law, Magna 
Carta may offer two fundamental and extremely 
interesting questions. One is concerned with the 
analogy between the rights political and civil which 
are defined in Magna Carta, and rights of the same 
kind which are formulated in contemporary or earlier 
Spanish legislation ; the two pictures may be com- 
pared as the results of a process common to all the 
nations of Europe in the Middle Ages, results pro- 
duced in two distinct communities which were making 
their way towards the same end. The other question 
has to do with the possibility that certain liberties and 
customs, belonging to Spain and the adjoining lands, 
may have had some influence in the formation of the 
programme which was imposed upon King John by 
the English barons. 

This second question has been raised by an English 
writer, Mr. Wentworth Webster, in his essay on " The 
Influence of the Pyrenaic/km?s upon the British Con- 
stitution ". Mr. Webster believed that such an influ- 
ence may have been brought to bear through Simon 
de Montfort, who, during his government of Gascony, 
not only saw, in actual political working, many of the 
privileges recognized by Magna Carta, but was also 

(227) 



228 MAGNA CARTA AND 

himself obliged to use them and prove their efficacy. 
It is natural that the continual observation of institu- 
tions, tried and proved by use, should impress one 
closely concerned therein, should guide the direction 
of his thoughts, and lead him to introduce these institu- 
tions into another country when occasion should arise. 
Thus the suggestion concerning de Montfort is pro- 
bable enough, although it would still remain to be 
proved that, in English constitutional experiments, the 
particular views of Simon de Montfort were actually 
predominant in guiding the thoughts of the other 
barons who had not shared his suggestive experiences. 
In the case of Magna Carta it is permissible to examine 
the question concerning the influence of the Pyrenaic 
fueros upon that document, through the agency of such 
men of that generation as might be acquainted with 
them. 

Long before Webster, the Spanish historians Senores 
Mariehalar and Manrique, 1 put forward the hypothesis 
of such an influence, not through the agency of a par- 
ticular person, but through possible knowledge of 
Spanish twelfth century legislative documents on the 
part of the English barons. But they did not support 

1 " Historia de la legislation y recitationes del derecho civil de 
Espana," by D. Amalio Mariehalar, Marques de Montera, and Cayetano 
Manrique, Advocates. Madrid, 1 86 1. Tome ii. 433. "We are not so 
blinded by Spanish sentiment as to suppose that the insurgents of 
Runnimede had before their minds the Ordinance of Leon in drafting 
the conditions imposed upon John Lackland. But when it is considered 
that the lapse of time between the two events was long enough to 
enable the English to know the Ordinance of Leon, and not long enough 
to permit them to forget it, perhaps it may not be impossible that, in 
discussing the means of restricting royal authority (which was almost 
the sole object of Magna Carta) they may have had in mind all the 
instruments, facts, and agreements between kings and peoples, in order 
to consider precautions taken against tyranny in other countries, and 
that, upon this supposition, they may have also taken into account the 
Ordinance of Leon." 



SPANISH MEDIEVAL JURISPRUDENCE 229 

this supposition by any historical proof that Spanish 
precedents were used by those who drew up Magna 
Carta. 

But in fact this question, interesting though it be, 
depends upon the first question stated above. For it 
is first necessary to know exactly whether there is a 
true analogy between the two sets of liberties and 
privileges in favour of certain groups of the population, 
and in limitation of royal power. In proportion, as the 
analogy proves stronger or weaker, the case becomes 
stronger or weaker for the possibility of the supposed 
Spanish influence. Or the solution may be simply a 
resemblance in the results of two independent move- 
ments directed towards the same object. 

This investigation will naturally examine several 
historical problems which form part of the general 
question. These problems may be thus stated: (i) 
analogy in respect of the number and amplitude of the 
rights granted in each case, (2) analogy in respect of 
their social scope, that is to say the classes or groups 
to which they extended, (3) their chronological relation. 

The analysisof these three points should be completed 
by a comparative study of the two movements, which in 
England and in Spain led to the results under examina- 
tion, or at least a study of their chief features and par- 
ticularly the main point of Magna Carta, namely the limi- 
tation of the absolute power of the monarchy, and the 
safeguard of the rights and privileges (not always just, 
it must be admitted) of the people. Such would be 
the plan of a complete study of the proposed thesis. 
But the limits of this chapter admit only of a brief 
summary of each point. 

Magna Carta contains some points which specially 
concern the political situation of England, points which 
have no parallel in Spain. A priori this was to be ex- 
pected. Feudal organization was not alike in the two 



230 MAGNA CARTA AND 

countries, even if the most feudal regions of Spain be 
considered. Social elements were not alike nor the re- 
lations between classes. In England there were also 
certain circumstances purely connected with the person 
of King John, abuses committed by that particular King 
which had to be abolished or restricted in the Charter. 
We shall not touch these points, since there is nothing 
corresponding to them in Spanish jurisprudence ; and 
we shall only examine those matters which are in their 
essence common to both countries. 

Here also Senores Mariehalar and Manrique have 
shown the way. They examine, one by one, most of 
the chapters of Magna Carta, 1 in order to prove, by 
comparison with Castilian precedents and especially 
with the dispositions laid down in the Cortes of Leon 
in 1 1 88, the priority and in some matters the greater 
amplitude of Spanish jurisprudence in the points of 
highest political and civil importance. 

The observations of Mariehalar and Manrique, being 
merely a kind of digression in their book, are brief, and 
also suffer from the deficiency of concrete studies, 
from which Spanish constitutional history suffered at 
that time (1862) in most of the topics which it em- 
braced. Moreover their whole work is marred by a 
want of organic perception. Nevertheless most of 
their comparisons are accurate in the main. To avoid 
repetition, these comparisons may be summarized here : 
The two authors prove the priority of Leonese and 

1 " Historia de la legislation y recitationes del derecho civil de 
Espana," by D. Amalio Mariehalar, Marques de Montera, and Cayetano 
Manrique, Advocates. Madrid, 1861. Tome ii. 426-34. In fact, 
Mariehalar and Manrique, although they are unaware of the fact, 
examine the text not of the Magna Carta of 1215, but of the Charter 
granted by Henry III in 1225. Hence come certain differences in 
the paragraphs which they quote, and also a mistaken reference to a 
provision non-existent in the Charter of 1215 a provision prohibiting 
the granting of land in mortmain to religious houses. 



SPANISH MEDIAEVAL JURISPRUDENCE 231 

Castilian jurisprudence (in part also of Visigothic 
jurisprudence, as defined in the "Liber Judiciorum,^ 
which during the age of the Reconquest was still in 
force in Spain) in respect of the rights of widows 
(Magna Carta, ch. 8), the establishment of a royal 
tribunal in a fixed place (ch. 17), the provisions con- 
cerning judicial process (ch. 39;, the judgment of 
peers (ch. 21), the vote of subsidies demanded by the 
King (ch. 12) and other provisions. 1 They also indi- 
cate certain rights which are set forth in the record 
of the Cortes of Leon of 1188, and of other earlier 
Cortes, and which are not mentioned at all in Magna 
Carta; .for example the right of declaring war and 
making peace, and the inviolability of the home. On 
the other hand they recognize that Magna Carta con- 
tains some provisions namely the right of trade and 
of ingress into the kingdom and egress therefrom 
which have no parallel in mediaeval Spain. 2 

But the observations of Mariehalar and Manrique 
do not embrace all the points of similarity between 
Magna Carta and Spanish jurisprudence, nor do they 
touch the principal topic. For the chief topic, in my 
opinion, is the general system of limitations imposed 
upon the Crown. On the other hand some of the 
points mentioned by these authors require further 
study, which should take into account both the whole 
body of provisions concerning these points and also 
the differences of circumstances surrounding these 
questions in England and in Spain. Thus, with re- 
gard to the provisions concerning administration of 

1 The references to the chapters are not from Mariehalar and 
Manrique, who give no numbers. The references are here given 
according to the text of Magna Carta in Stubbs' "Select Charters ". 

2 Yet attention should be drawn to the limitation of these rights in 
respect of foreign and unassociated merchants (ch. 41, cf. ch. 13, and 
see McKechnie, 2nd edition, pp. 247-8). 



232 MAGNA CARTA AND 

justice 1 (chs. 17, 24, 40, 45), in order to comprehend 
the true relation between English and Spanish juris- 
prudence in the thirteenth century, it would be 
necessary to treat separately some details which form 
part of the general subject. Thus two jurisdictions 
expressly mentioned in Magna Carta, that of the King 
and that of the barons, should be compared with three 
jurisdictions existing in Spain, that of the King, that 
of the " concejos " or municipalities (these two working 
side by side in a relation not yet thoroughly eluci- 
dated), and that of the feudal lords, which last had 
shrunk very much in Castile and Leon in the thirteenth 
century. Again the establishment in England of a 
fixed or stationary Court of Common Pleas and the 
exclusion of pleas of the Crown from the local courts 
should be compared with the special cases of royal 
jurisdiction in Leon and Castile, the royal power of 
calling up cases from inferior courts, and the double 
process clearly marked in Spain from early mediaeval 
times of absorption by the King's Court of seigneurial 
jurisdiction on the one hand, and the penetration of 
royal authority into municipal jurisdiction on the 
other hand. 2 In Spain municipal jurisdiction, which 
was gradually won also by the inhabitants of places 
subject to feudal lords, subjected to the "fuero" (or local 
custom) all men of whatsoever social condition, even 
nobles and ecclesiastics, within the limits of the muni- 
cipality. This institution, a knowledge of which is 
necessary to a clear perception of the democratic 

1 These should be distinguished from the provisions concerning 
judicial process (ch. 39). 

2 Another important point would be the comparison of the Castilian 
Cort or royal Curia with the English royal Court in respect of their 
composition and the extent of their jurisdiction. See Hinojosa, " El 
derecho en el poema del Cid " ; also Altamira, " Hist, de Espana," 
tome i. num. 294. 



SPANISH MEDIAEVAL JURISPRUDENCE 233 

scope of our jurisprudence, carries the question into 
a region unknown to English jurisprudence, at the 
beginning of the thirteenth century. The provisions 
established by Magna Carta concerning municipali- 
ties already existed in Spain ; and the existence of 
municipal jurisdiction in that country represents a 
distinct element of extraordinary importance. 

The subject of guarantees concerning legal process 
(39) has two parts, first prohibition to arrest, con- 
demn, etc., any "free man " l contrary to the law of 
the land, secondly the judgment of peers. As to the 
first, the Cortes of 1188 establish some provisions 
either identical with those contained in the text of 
Magna Carta or else resembling them, 2 besides others 
which are not mentioned in Magna Carta. But the 
main point, namely freedom from arrest except by 
competent authority, and freedom from condemnation 
except according to law and after trial, must be sought 
in the texts of our municipal "fueros " and in statements 
to be found "passim " in ordinances of a more general 
character. With regard to the promise in chapter 40 
which so scandalizes Mariehalar and Manrique who 
exclaim : " In none of our codes or ancient documents 
do we find the shameful declaration 'nulli vendemus,' ' 
it should be said that the same abuses are implicitly 
indicated in Arts. 19, 20, 21, and 29 of the Ordinance 
of Leon. The malpractices of administrators of justice 
in those times were very frequent in all countries. 
Monarchs continually strove to check these abuses, 
and Spanish jurisprudence, both before and after 1215, 
contains very many provisions of this kind. 

1 As to the limited meaning of " liber homo," which does not signify 
what a student of Spanish jurisprudence might suppose, see McKechnie, 
ch. i. As to the vagueness of the phrase, " legem terrae," see his 
ch. 39. 

2 Arts. 13 and 14 of the Spanish text in Mariehalar and Manrique. 



234 MAGNA CARTA AND 

But apart from the matters studied by Mariehalar 
and Manrique, matters which, as we see, demand 
further investigation, there are other points of rela- 
tion between English practice and the jurisprudence of 
the various Spanish states. Webster observed parti- 
cularly the intervention of the popular element and 
the form of election favoured by de Montfort. As 
to the first point, two chapters of the Charter de- 
mand our attention, the isth, which affirms municipal 
liberties, and the i4th which deals with the composi- 
tion and functions of the " consilium regni ". 

As to both these points, Spain was far ahead of 
England. Independent municipalities were numerous 
in Asturias, Leon, Galicia, Castile, Aragon, Catalonia,, 
and also Navarre at the beginning of the thirteenth 
century ; whereas London was not a municipality till 
1189; and in several of these countries the towns, 
constituted a considerable political and social force.. 
Their "fueros" were confirmed by every king, and 
the royal oath in the Cortes embraced the whole body 
of these "fueros" and of the privileges possessed by 
every class. 1 It seems needless to dwell on this point, 
since it is. recognized by all historians. For the same 
reason it is not necessary to trace in detail the priority 
and the greater amplitude of Spanish municipal rights 
by examining the true significance of the second part 
of chapter 13 " praeterea volumus et concedimus" and 
the scope of the " liberties " of London at that time. 2 

As to the composition of the Royal Council, Spain 
that is to say Leon and Castile shows a decided ad- 
vance as compared with England. Our Royal Council 

1 See the general lines of this social and political constitution in my 
" Historia de Espana y de la civilizacion Espanola,' 3 tome i. (third 
edition), paragraphs 275, 283, 289, and 290-2 ; also Hinojosa,, 
" Estudios sobre Historia del derecho Espanol ". 

2 McKechnie, 2nd edition, pp. 241-8. 



SPANISH MEDIEVAL JURISPRUDENCE 235 

(Consejo Real) was already in the thirteenth century 
an organism, precarious indeed and irregular in its 
functions, yet sufficiently developed and possessing a 
far wider competence than the baronial system to which 
the Council seems to be reduced in Magna Carta. 1 The 
Castilian Council included not only the nobles (whose 
right to be summoned in England is confirmed and 
defined for the first time by Magna Carta) but also 
representatives of boroughs and cities, that is to say, a 
plebeian element, which in the English system had no 
part whatever in such functions. Their inclusion in 
the Castilian Council possibly dates from the reign of 
Alfonso VIII (1158-1214). Moreover, the chief king- 
doms of Spain possessed, before 1215, another organism 
of much greater political and representative signifi- 
cance than the Council, namely the Cortes, which 
everywhere included representatives of the various 
classes of the community. The Cortes of Leon came 
into being in ~u88, and the Cortes of Aragon probably 
in 1163. Catalonia had Cortes a little later, in 1218. 
In Castile, 1250 is the latest date assigned to their 
origin. Nor should it be forgotten that, before the intro- 
duction of the popular element, the assembly (" con- 
cilium ") which aided the King in legislative functions, 
was in normal and frequent action from the early ages 
of the Reconquest. This " concilium " possessed not in- 
deed the power to pass laws, but the right to propose 
laws, like the Councils of the Visigothic period. The 
decisive intervention of the Cortes in voting taxation 
in which matter they hold distinct authority consti- 
tutes, in those Spanish countries which possessed 
Cortes before 1215, a superiority over the limited 
guarantees provided upon this point in chapter 12 of 
Magna Carta. 

Chapters 28, 29, and 30 find their equivalent in our 
1 McKechnie, 2nd edition, p. 253. 



236 MAGNA CARTA AND 

municipal and general laws concerning protection of 
private property. There are numerous provisions 
which check the abuses committed in seizing goods by 
way of penal or legal process, protect from seizure the 
instruments of labour and both the objects and the 
quantities to be assigned to the "yantar y conducho " 
or feeding and lodging of the King and his suite and of 
certain other officials. Since these points of our me- 
diaeval jurisprudence have not yet been specially eluci- 
dated, it is impossible to get a clear and succinct view 
of all these details, scattered through many constitu- 
tional documents. But the complete and organic ex- 
pression which was soon afterwards given to these 
points in the "Partidas" (1265) in the " Leyes de los 
Adelantados," and in other legal texts of Alfonso the 
Tenth's time, which in great part form a collection of 
earlier jurisprudence, prove the development which 
these matters had previously reached. 

Finally to avoid a too lengthy comparison between 
the chapters of Magna Carta and Spanish jurisprud- 
ence I will indicate the provisions concerning the 
Jews. Chapters 10 and n contain nothing favourable 
to them ; rather, they aim at protecting widows and 
minors against Jewish usury. Manifestly, the legal 
position of the Jews in England was inferior to that 
which they enjoyed at that time in Spain and particu- 
larly in Castile. It may be said that the period from 
the eleventh century to the middle of the thirteenth is 
the golden age of the Jews in Spain. It is true that 
social opposition to them takes distinct form towards 
the end of the twelfth century ; but persecution started 
much later, and even then royal protection was not 
wanting to them. 1 The petitions of the Cortes against 

1 See my " Hist, de Esp." i., paragraphs 279, 3i i, 3 2 5 - 443, 467, 
479, 490. 



SPANISH MEDIEVAL JURISPRUDENCE 237 

usury, throughout this period, curiously resemble 
these two chapters of Magna Carta. 

The limited social scope of most of the declarations 
of Magna Carta must be remembered throughout. 
The provisions of the Charter do not extend to all 
Englishmen, but, in most of the chapters, to the 
nobles only. Those of inferior status have little share 
in these advantages or to be more accurate in the 
limitations imposed on the royal power. The Charter r 
even when it does mention "villans," frees them only 
from some obligations towards the King, not from 
obligations towards the lords, to whom villans con- 
tinued to be like chattels. The status which was ob- 
tained by the citizens of London cannot be compared 
with that which was obtained by the barons. Even if 
we should accept the " democratic" interpretation of 
chapter 6O, 1 there still remain many other chapters in 
which the royal concessions lie out of reach of the mass 
of the people. 

In Spain on the other hand, and chiefly in Leon and 
Castile, even the servile classes of earlier ages had at- 
tained a great improvement of condition in 1215, and 
the liberties which were gradually being won, chiefly 
benefited the people in general, not an oligarchy of 
nobles. Even in Aragon, where later times were to 
bring a retrograde movement in respect of some in- 
ferior classes, the advantages actually attained were 
more widely diffused than in England; and we find 
the position of the lower classes better protected by 
a legislation in which they were regarded as important 
factors. 

II. 

Let us now pass to the most important point of 
comparison between Magna Carta and Spanish Juris- 

1 See McKechnie. 



238 MAGNA CARTA AND 

prudence in the thirteenth century, the point which 
most clearly marks the tendency of political evolution 
in Europe and which, for that reason, produced most 
results in the direction of constitutional control. That 
point is the attitude of the barons towards the des- 
potism of John Lackland and the guarantees with which 
they surrounded the concessions obtained, lest the King 
should evade those concessions. In fact, the whole 
scheme of declarations and promises contained in 
Magna Carta is valueless apart from security for their 
accomplishment Many Spanish kings made identical 
or similar promises, and the same thing occurred in 
other European countries which were passing through 
the same movement. But the real practical problem 
does not lie in declarations on the part of one section 
of the community, or of several sections, or of the 
whole people (whether represented in Cortes or not) 
that they propose to limit and censure the King's 
exercise of authority. The point is the possession 
of power to accomplish that object. One method of 
doing this was to bind the King with a series of 
guarantees constituting for him a danger or a con- 
siderable difficulty in the ordinary working of his 
authority and his administration. 

In Spain, from the Visigothic period onwards, 
efforts are clearly visible to check the natural pro- 
pensity of kings towards abuse of power a propensity 
which is found in all authority. But the means chosen 
are either merely moral definitions such as maxims 
declaring the King to be the first subject of the laws 
or else legal declarations of guarantees which rest 
solely on the monarch's good faith, such as limita- 
tions of the confiscation of private property. The sole 
effective counterpoise lies in the King's perpetual ap- 
prehension about breaking his formal and legal under- 
takings, in view of the powerful forces concerned in 



SPANISH MEDIAEVAL JURISPRUDENCE 239 

their enforcement. At a later time, the Cortes con- 
stitute a systematized guarantee by means of which 
the people hold the King in subjection through the 
power of refusing what the King may require, that 
is to say supplies ; but in all other respects, equili- 
brium which was seldom really secured is pro- 
duced or attempted through the free play of the two 
counterbalancing forces. And this is why in Castile 
the power of the municipalities and the whole body 
of privileges represented by the municipal " fueros " 
are so valuable, while in Aragon the social weight 
of the nobility possesses a similar value. 

Magna Carta treats the question in quite another 
manner. The creation of the committee of twenty- 
five barons (ch. 61) as a kind of tribunal to judge 
infringements of privilege and the functions assigned 
to this committee in chapters 52 and 55, as well as the 
recognition of the right of insurrection in case of 
breach of faith on the King's part, constitute guaran- 
tees which already assume an almost constitutional 
form. 

Both these provisions are known to Spanish juris- 
prudence, but they only attain a similar constitutional 
force considerably later than the date of Magna Carta. 
The first device, that of the committee of barons, as a 
tribunal to watch over the fulfilment of the " peace 
and liberties " granted and confirmed in the Charter, 
in Aragon takes the form of the "Justicia Mayor," 
in so far as that dignitary, forced upon the King by 
the nobles, becomes mediating judge or judge of 
*' contrafuero," that is to say, examiner of infringe- 
ments of law committed by the King or his officials. 
This guarantee was initiated in the Cortes of Egea 
in 1265. Its complete development is found in the 
" Privilegio General" won from Pedro III in 1283 
and is still more marked in the " Privilegio de la 



2 4 o MAGNA CARTA AND 

Union" (1287) which forbade the King to take pro- 
ceedings against any adherent of the Union, whether 
nobleman or municipality, without the intervention 
of a judicial sentence by the u justicia" and the con- 
sent of the Cortes. Something in the same direction, 
but less effective, is to be found in the privilege of 
the Aragonese and also the Catalonian Cortes that 
examination should first be made of any grievances 
against the King. 

In Castile there was nothing resembling the com- 
mittee of twenty-five barons before the Pact (" pacto ") 
of the Hermandad of the nobles and municipalities 
(" concejos ") of Castile, Leon, and Galicia with the 
infante Don Sancho, son of Alfonso X (1282). This 
Pact established the right of the Hermandad to judge 
the royal officials and even the judges themselves 
and to inflict upon them punishments, including the 
penalty of death. This privilege or means of security 
against the King and his officials finds its culmination 
in the " Concordia de Medina," which was forced 
upon Henry IV in 1463 : but this latter agreement 
was short-lived. 

The second device, that of insurrection, is more 
fully represented in Castile. The earliest document 
which we know concerning this is the above-men- 
tioned Pact of 1282, which assigns to the towns the 
right of insurrection against royal infringements of the 
law. The same thing occurs in what may be called 
political programmes of other Hermandades of the 
thirteenth century, such as the Hermandades which 
united the towns of Castile, Leon, and Galicia in 
1295, and which were confirmed by Ferdinand IV. 
A similar provision is found in the above-mentioned 
"Concordia de Medina," which establishes the right of 
making war on the King without incurring penalty, 
in case the King should proceed against nobles or 



SPANISH MEDIEVAL JURISPRUDENCE 241 

ecclesiastics in any other form than that formulated 
in that document. It would be out of place here to 
discuss the doctrinal development of this right of 
insurrection in the hands of theologians and political 
theorists of the sixteenth and seventeenth centuries : 
this important topic has given rise to an abundant 
critical literature in recent times. 

In Aragon, assertions of the right of insurrection 
were at least as definite as in Castile, and had wider 
results in the sequence of political events. The 
" Privilegio de la Union " declared that, in case the 
King infringed its provisions, the leagued nobles and 
municipalities were free to refuse him obedience and 
choose another sovereign without being guilty of 
treason. Notwithstanding the astute government of 
James II, this privilege was ratified in 1347, when the 
new King, Pedro IV, was obliged to recognize the 
power, claimed by the Union, of deposing, banishing, 
and depriving the King, if he should inflict punish- 
ment without the judicial sentence of the "Justicia" 
and the advice of the " ricos-hombres ". But this 
"Privilegio" was not valid for long in Aragon, 
since Pedro IV himself annulled it in 1348. 

To conclude, it is interesting to compare the very 
wide character of these securities that of insurrection 
and that of a tribunal or judge to examine royal in- 
fringements of law in most of the Castilian and Ara- 
gonese documents concerning them, with the very 
special and limited character which they bear in 
Magna Carta. The competence of the tribunal of 
twenty-five barons and the right of insurrection refer 
explicitly to the " peace and liberties " granted and 
defined in Magna Carta, whereas the similar securities 
embodied in contemporary or slightly later Spanish 
jurisprudence embrace every possible case of infringe- 
ment of privilege on the part of the King or of his 

16 



242 MAGNA CARTA AND 

officials, although these documents sometimes par- 
ticularly mention irregularities of legal procedure. 
The greater amplitude which in Spain from the be- 
ginning marks the guarantees won by nobles and by 
the people, may arise either from a natural propensity 
of the Spanish mind to generalize without giving much 
importance to the generalization, or else from a com- 
plete view of the problem and a desire to solve it 
entirely once for all. Whichever be the explanation, 
it is a characteristic trait of our history. 

Another characteristic is the constant mixture of 
noble and of popular elements in these acts of resist- 
ance to royal despotism and to arbitrary administration. 
The joint action of both classes signifies that in Spain 
the liberties obtained had a very wide social reach, 
especially in Castile, where popular action had a large 
share in the movement. But it should not be forgotten 
that in many cases especially in Aragon, but also in 
Castile during the reign of Henry IV the pressure 
put upon the King had an oligarchical character, a 
condition of things which is in fact not less dangerous 
than royal despotism to public rights. The conflict 
arises, not always between a despot and a people 
suffering under his despotism, -but sometimes between 
a despot and other despots who resist a check upon 
their despotism. That is to say, class privileges are 
asserted against the authority of one man's will ; and 
this fact should be well weighed as it has been 
weighed by modern writers on Magna Carta in order 
not to attribute to political development a much more 
democratic tendency than it really possessed. What 
did happen was that those who strove to limit the 
royal will in their own interests were unwittingly 
furthering constitutional progress on behalf of all. 
For they were preparing both the minds of men and 
the machinery of government in such a way that, 



SPANISH MEDIEVAL JURISPRUDENCE 243 

when the royal power, representing the unity of the 
State, should rise above the diversity of aristocratic 
and local authorities, this single power should not be 
in a position to injure the fundamental rights of the 
subject. 

The dates at which this point was reached and the 
roads which led to its attainment have varied in all the 
countries of Europe. Every country has also differed 
from its neighbours in the vicissitudes of advance and 
retrogression. In England, apart from some episodes 
of fluctuating movement, the tendency of national 
liberties becomes continually more marked from 1215, 
and soon takes a decisive and progressive direction. 
In Spain, notwithstanding her priority in this kind of 
political activity, privileges are lost without any com- 
pensating gain to the common rights of subjects ; for 
the absolute power of the King dominates all privi- 
leges, and destroys that which had been attained in 
the Middle Ages ; nor is the loss replaced by any 
analogous guarantees of equal extent. The process 
is interrupted and is renewed long afterwards, in the 
nineteenth century, without the attainment of positive 
advantages until near the end of that century. But 
the true history of absolute power in Spain, in order 
to elucidate how far it penetrated civil and political 
jurisprudence, still remains to be studied ; and any 
generalization would be, at the present time, premature. 



FINANCIAL RECORDS OF THE REIGN OF 
KING JOHN. 

BY HILARY JENKINSON, F.S.A. 

introductory. THE most superficial study makes it clear that finance 
played a part of extreme importance in the reign of 
King John ; it is probably not too much to say, con- 
sidering any of the great crises of his time, that had 
he commanded even adequate financial resources the 
other elements in the situation the personal character 
of himself and those with whom he came in contact at 
home and abroad, political influences, national move- 
ments would have worked out to a quite different 
end. His period, too, after long neglect, has in recent 
years received considerable attention. It is strange, 
therefore, that the existing Records which may be 
either directly ascribed to, or obviously associated 
with, his financial administration have been to a 
great extent left aside by historians. It is true that 
the primary executive instrument of his time was the 
Chancery and that the Chancery Records have nearly 
all 1 been published for his reign with Introductions 
which, in some cases at least, 2 still stand. But even 
the Chancery Records are comparatively unworked 
for the financial points at any rate for the smaller 

1 I propose to call attention below to some exceptions. There are 
unpublished fragments or rolls of Close Rolls, Liberate, Fine, Norman, 
and Prestita Rolls. 

2 Notably in that of the " Rotuli Cartarum," edited for the Record 
Commission by Sir Thomas Hardy. 

(244) 



FINANCIAL RECORDS 245 

ones which they contain ; partly, no doubt, because 
(it is the great lack of all the earlier Record publica- 
tions) they have no subject index. The direct Re- 
cords of Exchequer administration have, with two 
exceptions, 1 been left severely alone. Here again 
there is an obvious reason in an obvious difficulty; 
the Pipe Rolls (the chief, though not the only, 
class of direct Exchequer Records for this reign) 
being so bulky that inquirers have doubtless de- 
spaired of making a just use of them. 

It would be well if these records could be dealt 
with in print. Meanwhile the present anniversary The Object of 
seems to offer an opportunity for the survey of such 
Exchequer Records of King John as remain to us. 
Having surveyed we may also do good work by 
endeavouring to place them. We have a good 
general summary of Exchequer procedure as it was 
in the twelfth century in the "Dialogus de Scaccario"; 2 
and we know, in outline at least, what the machinery 
of it was in the period which first gives us fairly 
complete manuscript remains of the various depart- 
ments of Exchequer administration say the early 
fourteenth century. It is obvious that the second 
of these states has grown out of the first, but obvious 
also that we cannot, without investigation, put down 
to mere expansion all the changes which we find ; 
there might well have been some violent innovation. 
Now where do John's Exchequer Records stand in 
relation to this expansion and, if they took place, to 
these innovations ? The fact that the Chancery Rolls 
begin with his reign makes it peculiarly desirable to 
establish at this point some limit between the twelfth 

lu The Norman Exchequer Rolls," printed by Stapleton, and the 
" Chancellor's Roll," printed by the Record Commission. 

2 1 refer throughout to the pages of the Oxford edition by Messrs. 
Hughes, Crump, and Johnson. 



246 FINANCIAL RECORDS 

and the fourteenth centuries in the matter also of the 
Exchequer. 

Even so we have not exhausted the list of what 
may properly be considered preliminaries essential 
to the study by historians of John's finances. All 
Administrations, perhaps everywhere, certainly in 
England, have been from the earliest date subject to 
the mysterious influence of the Legal Fiction ; old 
forms, that is to say, because they were established 
and because they had legal sanction, have been 
adapted to violently new uses : two people play at 
going to law in order to transfer land with the greater 
security ; the King makes out a receipt for money he 
has not received from A. in order to have a convenient 
substitute for cash with which himself to pay B. We 
have in fact to consider the Records of, for example, 
the annual Audit in the light of transactions which 
we know from other sources to have taken place, in 
order to settle the question whether the Pipe Roll 
at a given period represents what we should expect 
it to represent a survey of the year's income or 
whether it is only partially this, or not this at all. 
Reversing the process we have to test, where pos- 
sible, our knowledge of the alleged exaction of the 
King by its representation in Records. Does a state- 
ment that the King imposed a talliage of 20,000 marks 
mean that he obtained 20,000 marks ? In the vast 
majority of cases administrative documents and nar- 
rative descriptions have not both survived for any 
given transaction in early mediaeval times. But an 
examination of the cases where they have will furnish 
a criterion of value for the large number of cases 
where only the one or the other remains to us. 

To deal with such problems as this is obviously 
beyond the scope of a single paper; indeed for the 
most part they must be left till greater facilities in 



OF THE REIGN OF KING JOHN 247 

the way of printed and indexed Records are avail- 
able. At the same time, in view of the wide and 
unquestioning use which has been made of Chronicle 
statements, the point is worth raising. Meanwhile, 
we may attempt perhaps with some profit the survey 
of the wealth which remains to us ; and to a certain 
extent the classification of the Records from the point 
of view of the part they played in the administration 
of the various departments. 

For the purposes of a survey it will be convenient A survey of 
to travel backwards. Briefly then to summarize processes? 
what is well known, the financial documents which and fficials - 
remain to us from the time when the " course of the 
Exchequer " was well established say at the end of 
the first quarter of the fourteenth century are as 
follows. It may be premised that we are attempting 
only to deal with those officials who left us Records, 
i.e. direct Records of the particular processes they 
controlled ; for example, we are to display an interest 
in the Chamberlains of the Receipt but not in the 
Tellers, important as the latter ultimately became. 

To begin with the Exchequer of Audit. This is in the early 
represented by the two departments of the King's 
Remembrancer and the Lord Treasurer's Remem- 
brancer. The latter's department is that of final 
audit represented in Records by the Pipe Roll Audit, 
and the divisions which split off from it. 1 The 
King's Remembrancer's department that of pre- 
liminary audit is represented in Records by a mass 
of vouchers of every shade of variety in point of 
officiality, provenance, and writing ; and by some 
preliminary statements or summaries of Accounts 
Compotuses compiled from the vouchers ; these last 
are closely connected with the Enrolled Accounts 

1 The documents now known as Foreign Accounts and Enrolled 
Accounts. 



248 FINANCIAL RECORDS 

mentioned above. All these are in origin part of the 
"Ancient Miscellanea of the Exchequer, K.R.," and 
are represented now by a number of classes, princi- 
pally those known collectively as " Exchequer Ac- 
counts ". 

Memoranda. The supplementary, interim, or domestic affairs of 
the Upper Exchequer as a whole, the proceedings of 
the barons, their Minutes and Correspondence, are 
represented in the case of both these Remembrancers 
by a Memoranda Roll in which each of them had 
noted such of the proceedings as interested his de- 
partment. In many cases the same information would 
appear in both rolls. These Memoranda are, of course, 
the distinctive Records of Remembrancers. At the 
time we are speaking of they are arrayed in definite 
divisions including the " Adventus Vicecomitum " and 
" Dies Dati " (showing the arrangements made for 
audit), the " Brevia Directa Baronibus " (a section 
of In-Letters), the " Status et Visus Compotorum," 
the " Brevia Retornabilia " and " Irretornabilia " 
(Out-Letters), the " Precepta " (instructions for issue 
of writs of process), and a section in which private 
deeds are enrolled ; and, most important of all, the 
very lengthy " Communia," with various sub-sections, 
the chief of which is that of the " Recorda " of revenue 
cases which come up for decision before the barons. 
This last section is intimately connected with the 
origin of the separate Exchequer of Pleas ; but pre- 
cisely how intimately has not yet been settled. 

Receipt and Behind or below this Exchequer of Audit, separate 
from but subject to it, is the Department of the Re- 
ceipt, represented qua Officials by the Treasurer and 
the two Chamberlains or their Deputies. 1 Speaking 
broadly, the duties of these three at the " Recepta " 

1 Ultimately the Clerk of the Pells and the two Chamberlains of the 
Receipt. 



OF THE REIGN OF KING JOHN 249 

are the same, and they are represented in Records by The Ward- 
either a common collection or a triplicate series. They ro 
record the operation of receipt by preserving counter- 
foils of receipts (the foils of tallies or "contratalee," 
and eventually the stocks of the same when these come 
in after audit), and copies of the inscriptions of these 
tallies on rolls (Receipt Rolls) : the operation of issue 
by preserving the original writs for issue, copies of 
these (Liberate Rolls 1 ) or notes of them (Issue Rolls). 

Besides the " Recepta " there is another office where 
receipt and issue go on. When the differentiation of 
the Exchequer from the " Curia " was complete the 
result was an elimination of any personal control by 
the Monarch. The same thing occurred in the de- 
partmentalization of the Chancellor, who, with his 
staff, controlled the Great Seal. In each case the re- 
sult was the same ; under the older Official, or rather 
body of Officials, there grew up an Official or an Office 
closely resembling it in functions, and to some extent 
in methods, but controlled, as itself had originally 
been, directly by the Sovereign. At its weakest the 
new body acted as a link between the older one and 
the King; at its strongest it usurped in his behalf the 
authority of its prototype. The departmentalization 
of the "Curia," in fact, brought into existence the 
'" Camera," the household grew up as an administrative 
organ, beneath the Court. Thus below the process of 
the Great Seal, preliminary or subsidiary to it, we 
have that of the Privy Seal ; and presently below this 
in its turn the Signet. Similarly, 2 below the Ex- 
chequer (Upper and Lower, Auditing Body and Re- 
ceipt) we have financial functionaries of a less official 

1 They had a number of other names in their own time. 

2 Another instance might be taken from the comparative growth of 
Parliament and Council. 



250 



FINANCIAL RECORDS 



The Chan- 
cery. 



Judicial Re- 
cords. 



character ; notably we have, well established long be- 
fore the fourteenth century, the Wardrobe; taking 
upon itself to a greater or less extent, according to the 
relative strength of King and Ministers for the time 
being, the function of receiving and, more particularly, 
of spending the King's money. Of the activities of the 
Officials of the Wardrobe record is preserved to us in 
the shape of a regular series of Accounts, with quanti- 
ties of attendant vouchers, among the Records of the 
King's Remembrancer. 

Apart from the direct operations thus recorded at 
the two departments of the Upper Exchequer, at the 
Receipt, and at the Wardrobe, Record is preserved at 
the Chancery of the part played by that Executive in 
originating active financial operations. Writs for 
Issues and those concerned with the audit process, 
(writs of account, allowance, pardon, etc.), are pre- 
served in copies made as they issue from the Chancery ;. 
we have in particular the Chancery Liberate Rolls. 
Besides these many other letters under the Great Seal 
must necessarily concern the Exchequer either directly 
by causing payments in or out, 1 or indirectly by modi- 
fying the property in respect of which audit takes 
place. As these letters, unlike the writs mentioned 
above, are not directed to Exchequer Officials, copies 
or notes of them extracted from the Chancery Enrol- 
ments must be sent over to the Exchequer; where 
they are preserved in the shape of "Originalia " or 
Chancery Estreats. 

Finally, we must give a word in passing to another 
class of non-Exchequer Records, the rolls of the 
Justices; full of subjects so interesting to the Ex- 
chequer as amercements. As these were preserved at 
the Treasury of the Exchequer they were presumably 
available there for reference ; but Estreats were 

1 E.g. by way of fines, on the one hand, or salaries, on the other 



OF THE REIGN OF KING JOHN 251 

prepared from them, whether by the Justices or the 
Exchequer Officials, for the information of the Ex- 
chequer and its Accounting Officers. 

It is to be noted that all the operations which lie at 
the base of the classes of documents we have touched 
on are simple ones, which, in a primitive form at least, 
are going on in the earliest times at which we have 
details of the organized finance in the King's Courts. 
To return now to these earliest times. 

In the time of the " Dialogus" we have an Upper in the time of 
Exchequer represented in Records by the Pipe Roll, g U e s . Dl 
the form of which (a fact confirmed by existing rolls), Upper Ex- 
is essentially the same as that we find later. It ispipe U Roi* n 
written, we are told, by the Treasurer's scribe from his 
dictation at the actual time of Audit ; and at the same 
time a copy is taken by the Chancellor's scribe for the 
Chancellor. 1 We may add for completeness a refer- 
ence to the existing rolls and their publications by the 
Pipe Roll Society. 

There is evidence of the production of original writs Vouchers, 
of pardon or allowance at audit time by the Account- 
ant ; and of their preservation by the Marshal. 2 

At the " Recepta " the Officials are the same as we The Lower 
find there later. The Tallies given out as acknowledg- Exche( i uer - 

f ' , Tallies and 

ments of sums paid in are also practically the same, words, 
and the foils, and subsequently the stocks, are pre- 
served in like manner. The writing on them is done 
by the Treasurer's clerk. 4 The same Official also 
' deputat scripto " the sums received ; possibly this is 
a reference to the " rotulo receptarum " which is also 
mentioned. 5 

1 " Dialogus," p. 81. *Ibid. p. 83. 

3 See a note on the subject of Exchequer Tallies in " Archaeologia," 
Ixii. Later these two duties belonged to distinct Officials, the " Scrip- 
tor Talliarum " and " Clericus Pellium". 

Dialogus," p. 62. 5 Ibid. p. 107. 



4 u 



252 FINANCIAL RECORDS 

Payment out is already dependent on a writ of 
"Liberate " from the Chancery, which the Officials of 
the Receipt preserve after it has been honoured. 1 Two 
examples of the Henry II period have survived. 2 

The Norman Before going any further we may interpolate here 
some remarks about the separate financial adminis- 
tration ' of Normandy an administration which, of 
course, was not in existence, so far as concerns this 
country, at the later date we have been discussing. 
Stapleton, 3 who edited the rolls of this Norman 
Exchequer for the Society of Antiquaries, quoting 
allusions made in the " Dialogus " to this "Scaccarium 
transmarinum," discredits the suggestion 4 that the 
English system was based on the Norman, a position 
taken also by most modern writers ; 5 but makes it 
clear that there was a separate Norman " thesaurus " 
in 1131 : 6 and the balance of opinion seems to be in 
favour of accepting the fact of a " Scaccarium " in 
session in Normandy as early as n^i. 7 It is to be 
noted that the " Dialogus " expressly describes this 
overseas Exchequer as essentially different from 
the English one ; and Prof. Powicke 8 in describing 

1 "Dialogus," pp. 62, 107. 

2 One printed by Madox ("Exchequer," chap. x. 13, note) and one 
by Dr. Round (Pipe Roll Society, "Ancient Charters," p. 96). See 
below, p. 285. 

3 1, xxii. 

4 Made by Madox (chap, iv.) among others. 

5 Delisle, in " Bibliotheque de 1'Ecole des Chartes," x. 174, etc.; 
Poole, " The Exchequer in the Twelfth Century " ; Valin, " Le Due 
de Normandie et Sa Cour ; Raskins, in "English Historical Review," 
xxiv., and "American Historical Review," xx. ; Powicke, "The Loss 
of Normandy ". 

6 I, xxiii. 

7 Valin's theory that it started later, with Richard of Ilchester, is 
discredited by Powicke (p. 85) and Haskins. 

8 Loc. cit. 



OF THE REIGN OF KING JOHN 253 

its functions is, of course, noting some functions and 
fashions which are certainly not English. The sur- 
viving rolls go back to 1184. 



It is further to be noted that in the time of 
" Dialogus " we have already allusions to financial" 
transactions carried on by some machinery other 
than that of the " Scaccarium " and " Recepta " by 
the " Camera " in fact both in England l and in 
Normandy. 2 

In the Chancery, it appears from the " Dialogus, "The Chan- 
the Chancellor's clerk keeps a " rescriptum," 3 other- cery * 
wise called " contrabrevia," of the writs of Liberate, 
pardon, and allowance issued ; and these " contra- 
brevia " may apparently be produced at the Exchequer 
Board at Audit just as the " contratalee " are produced 
for checking purposes by the Officials of the Receipt. 

Turning to Judicial Records we find that the judicial. 
" Dialogus " supplies no evidence of the existence 
of Plea Rolls in its time (the earliest which have 
survived are of the reign of Richard I) : but it is 
clear that information concerning amercements im- 
posed is furnished by the Justices. 

Now it will be noticed, as one compares the twelfth Gaps in the 
with the fourteenth century, that we have here certain ^e^Dh? 
large gaps. At the Receipt we have seen nothing 
any " Issue " or " Liberate Roll ". In the Chancery 
there is no preparation of Originalia, though the 
" Rescriptum " or u Contrabrevia " seem to be used 
for the same purpose. Finally, we have said nothing, 
so far, in relation to the twelfth century, of the Re- 

1 " Dialogus," p. 122: "Cum ex regis mandate vel in camera 
curie vel operationibus vel quibuslibet aliis firmam Comitatus (vice- 
comes) expenderit. . . ." 

2 Delisle, p. 279. 3 " Dialogus," pp. 82, 83. 



254 FINANCIAL RECORDS 

membrancers and of their most distinctive Records, 
the " Memoranda ". I have mentioned these last 
because we have here a matter which needs rather 
more detailed discussion. 

Memoranda It is clear, of course, that in the time of the 
memhrancen. " Dialogus " the business of Audit was not divided 
up into the preliminary and final department of the 
King's Remembrancer and Lord Treasurer's Re- 
membrancer or any two Officials under other names. 
But that does not mean necessarily that there were 
not at that date Remembrancers, or at any rate some 
Officials whose successors ultimately became Remem- 
brancers. Moreover, we have yet to mention two 
more Officers whom the " Dialogus " does chronicle, 
with their Records Master Thomas Brown and the 
Archdeacon of Poitou, Richard of Ilchester, for a 
short time Seneschal of Normandy. 

The Theory of These being two and unplaced in the Exchequer 
Brown. 8 scheme of things, and the later Remembrancers, who 
are not mentioned in the " Dialogus," being also two, 
it is naturally tempting to equate the pairs. Thus 
Dr. Poole " has long been accustomed to see (in 
Thomas Brown and Richard of Ilchester) the origin 
of the two Remembrancers who first appear by name 
under Henry III "- 1 The position of both at the Ex- 
chequer Board is certainly anomalous. Of Thomas 
Brown we are told 2 that at the Court of the Sicilian 
King, before he came over to that of Henry II, he 
was " in regis secretis pene praecipuus " ; that at the 
English Exchequer he sits " in quarto scanno quod 
est oppositum Justiciario " ; 3 that he has a copy made 
from the Pipe Roll, or parts of it, at the same 
time as the Chancellor's clerk makes the Chancel- 
lor's counter-roll, his own clerk having a special seat 

1 Poole, op. cit. p. 1 19. a " Dialogus," p. 84. 3 Ibid. p. 70. 



OF THE REIGN OF KING JOHN 255 

'given him that he may be able to discharge this 
duty; 1 that he also has a clerk at the Receipt who 2 
" liberam habet facultatem scribendi . . . que recipiun- 
tur et expenduntur ". Of the Archdeacon we are 
told 3 that his clerk kept " rescripta " of the writs of 
summons which he used for the purpose of checking 
them when they were read out at the Audit ; we are 
;also given details of his place at the Board. As to 
the peculiarity of the position of these two Adminis- 
trators Thomas Brown's privilege of keeping for his 
own use a third roll is "preter antiquam consuetu- 
dinem," while the Archdeacon's position is 4 " ex 
officio quidem set ex novella constitutione ". In the 
case of this last passage a variant reading would tell 
us that he sits " non ex officio ". The first of the 
-above remarks seems to me to show that Thomas 
Brown's position was "ad hoc," created not for an 
office which he filled at the moment but for him. 
Taking this view I should he disposed to accept the 
41 non " in the second passage, though even without 
it the remark does not, I think, establish conclusively 
the officially of the Archdeacon's position at the 
Board : " ex novella constitutione " is elsewhere 5 
applied to Thomas Brown and is there explained as 
meaning " added by the present King ". At this point 
I come, with great diffidence, into conflict with the 
view which sees in these two the ancestors of the 
Remembrancers officials, be it noted, who are not 

1 " Dialogus," p. 70, " Cum enim sic disposite essent sedes ab initio 
ut scriptor thesaurarii ad latus suum resideret . . . et item scriptor can- 
cellarii ad latus scriptoris thesaurarii ut fideliter exciperet quod ille 
prescribebat . . . non superfuit locus in quo scriptor ille (Thomas 
Brown's clerk) resideret ... set datus est ei locus in eminent! ut pro- 
spiciat et immineat scriptori thesaurarii qui primus scribit et ab ipso 
<quod oportet exciperet." 

2 Ibid. p. 84. 3 Ibid. p. 117. 
4 Ibid. p. 69. 8 Ibid. p. 70. 



256 FINANCIAL RECORDS 

known to occur under that name before the reign of 
Henry III. 1 

The identification of the Archdeacon and the Lord 
Treasurer's Remembrancer may here be left ; it is a 
matter largely of taste, for it depends almost entirely 
upon the interpretation put upon the passage quoted 
above (though there is possibly some force in the fact 
that the Archdeacon is connected with the function of 
summons 2 ), together with the fact that if Thomas 
Brown is the ancestor of the King's Remembrancer, 
there seems really no reason why the Archdeacon 
should not foreshadow the Lord Treasurer's Re- 
membrancer. If Thomas Brown's suggested position 
be not substantiated then the similar suggestion for 
his contemporary rather falls to the ground. 

Now as to Thomas Brown. Dr. Poole's argument 
is 3 that the words "quod oportet excipiat," applied to 
his clerk, imply a selection of topics; and that the 
" regni iura regisque secreta " contained in his roll are 
"very nearly what the later Remembrancers wrote in 
their rolls". In making this point Dr. Poole has to 
dismiss the statement that any errors made " in ex- 
cipiendo " can easily be corrected by a comparison 
with the Chancellor's and Pipe Rolls 4 together with 
an important comment of " Discipulus " in this connec- 
tion. 5 This is difficult : and an even greater difficulty 
is that the same word "excipere" is applied to the 

1 Madox, " History of the Exchequer " (quarto edition, ii. 263). 

2 Even so it is difficult to see exactly what part of the later Re- 
membrancer's duties is here foreshadowed. Something in connection 
with the " Adventus Vicecomitum," but that is a matter which concerns 
the King's Remembrancer equally. 

3 P. 120. 4 "Dialogus," p. 70. 

5 ". . . Licet enim (clericus Cancellarii) non prescribat conscribit 
tamen" . . . ^Discipulus: Veri simile etiam videtur custodem 
tertii rotuli eadem scripture lege constringi." " Magister : Non est 
veri simile tantum set verum." . . . [ibid. p. 71]. 



OF THE REIGN OF KING JOHN 257 

work done by the Chancellor's clerk who undoubtedly 
makes an exact copy from the work done by the 
Treasurer's clerk. 1 As to the word "secreta," Dr. 
Poole' 2 has already explained its use in connection 
with Thomas Brown's Sicilian experiences as referring 
to the "duana de secretis"; and there seems to be no- 
difficulty here in explaining it either, as Prof. Hask- 
ins does, as a piece of mere magniloquence or as being 
borrowed by the writer of the " Dialogus " from his 
own previous description the man who was great in 
the "secreta " of Sicily was great also in our English 
"secreta," a piece of allusiveness quite in character. 

Of course it may be argued that Brown did keep an 
exact copy but that, in spite of this, he was a Re- 
membrancer. I confess I find it quite easy to sup- 
pose that a "restless experimenter," to adopt Prof. 
Haskins' description of Henry II, temporarily included 
special members in his Court of Exchequer in order to 
have the advantage of their advice, and in consideration 
of their financial experience, which was well known. 
Elsewhere 3 I have tried to show that so early as the 
beginning of this King's reign new revenue problems 
were making the conduct of the Audit upon the old 
lines by no means a simple matter. It is much more 
difficult, I think, to suppose a permanent change to 
have been made by revolutionary innovation at the Ex- 
chequer, where, as the " Dialogus " shows, the " ancient 
course" 4 was already a shibboleth. Such changes are 

1 " Item scriptor Cancellarii ad latus scriptoris Thesaurarii lit fideli- 
ter exciperet quod ille prescribebat (ibid.'}. 

2 P. 119. 

3 "Eng. Hist. Rev." xxviii. 209. Richard of Ilchester became 
Seneschal of Normandy in 1176, and I have suggested below that he 
may have introduced there certain reforms which his English ex- 
perience showed to be desirable. 

4 This phrase of the seventeenth century apologists comes very near 
to rendering the " antiqua consuetudo " of the " Dialogus ". 

17 



258 FINANCIAL RECORDS 

extremely rare in the whole of Exchequer history, and 
indeed in the whole of English administrative history : 
it is much easier to suppose 1 that the Remembrancers 
were merely the evolution into a separate name and 
recognized office of the simple clerks of one of the 
original officers of the court ; just as was the case with 
the Chancellor of the Exchequer (originally the Chan- 
cellor's clerk) and the Clerk of the Pipe (Treasurer's 
clerk) at the Upper Exchequer, the Clerk of the Pells 
(Treasurer's clerk) at the Receipt, and other distinct 
officials in other courts. 

Theor" This is P erna P s again very much a matter of taste ; 

but there are other arguments less open to that objec- 
tion. The nature of the later Memoranda Rolls does 
not suggest that they originated in copies from the 
Pipe Rolls; they consist, in fact, largely of things 
which are not on the Pipe Roll. Again, neither of the 
later Remembrancers had any function at the Receipt ; 
Thomas Brown kept a clerk there.' 2 Final and strongest 
argument against this derivation of the Remembran- 
cers' Office the "Dialogus" 3 actually mentions the 
making of Memoranda, and Memoranda of such a 
nature as we should expect ; very little, it says, is 
written at the Easter Scaccarium : " tamen quedam 
memoranda que frequenter incidunt . . . seorsum tune 
scribuntur ut soluto scaccario de hiis discernant mai- 
ores que quidem non facile propter numerosam sui 
multitudinem nisi scripto commendarentur occurre- 
rent ". The volume of business has so increased that 
many matters (so many that they must be noted in 
writing) have to be reserved for discussion, so to speak, 
out of term. We shall have to return to this later. 
For the moment the interesting point is that this writ- 
ing is done "a clerico thesaurarii ". 

1 Cp. Madox, loc. cit. 2 " Dialogus," p. 84. 3 P. 1 1 5. 



OF THE REIGN OF KING JOHN 259 

In treating, therefore, this section of Records, it is 
from this view of the Memoranda that we must start ; 
that is from an expectation of finding in the Pipe Roll 
such a growing unwieldiness and confusion as would 
necessitate the regular making, not of extracts from it, 
but of notes of preliminary and interim matters which 
need not ultimately appear in the Pipe Roll at all ; and 
from a parallel expectation of what, when we find 
them, the first Memoranda will be. So we may turn, 
after a rather long digression, to the actual Records of 
John. 

Pipe Rolls. 1 These exist for every year except the 
fifteenth and eighteenth, and fragments of the latter are Exchequer 
made up in the roll of the seventeenth year. " Chancel- 
lor's Rolls " exist for the third, fourth, seventh, tenth, 
thirteenth and seventeenth years ; that for the third 
year was printed by the Record Commission. There 
is also a fragment in Exchequer K.R., Miscellanea, 1/6. 

Memoranda. Two rolls are definitely so called 
though they are not now numbered with the classes of 
that name; they are Exchequer L.T.R., Miscellaneous 
Rolls, 1/3 and 1/4. 

Vouchers and Miscellanea. Classed as such, though 
we may have to bestow some of them elsewhere, are 
at present one document in Exchequer K.R., Miscel- 
lanea, and eleven among the "Exchequer Accounts". 
Of the latter six are " Mise " and "Imprest Rolls," 
partly known by the Record Commission publication 
(Exch. Ace. 349, Nos. iB, 2 and 3 ; and 325, Nos. 1,21, 
and 2), and referred to under " Household " below. Of 
the remaining five, two (Exch. Ace. 505, Nos. 2 and 3) 
have to be eliminated at once as they belong really to 
the following reign ; 2 on the other hand one (Exch. 

a This description and the division between the classes of Chan- 
cellor's and Pipe Rolls are the accepted Record Office practice. 

2 The first is of the year 3 Henry III and the second well after 24 
Henry III. 



260 FINANCIAL RECORDS 

Ace. 349, No. lA) at present classed as belonging to 
the previous reign must be assigned to our period. 
We have therefore to consider under this heading five 
documents, 1 of which one (Exch. Ace. 152, No. i) has 
been printed by a foreign student.' 2 

Tallies. One possibly of this reign has survived. 3 

Receipt Rolls. We have one doubtful fragment (Re- 
ceipt Roll, 2) and one Jewish Roll (Receipt Roll, 1564). 
For purposes of illustration we may note four earlier 
fragments : two of Henry II, 4 one of Richard I, 5 and 
one (a Jew Roll) of the same reign." 

Issue Rolls. None survive. 

Original Writs of Liberate. One such has been found 
in "Ancient Correspondence," vol. 47, No. 2. 

Household or Camera. Here are to be classed the 
three "Mise" Rolls and possibly the three "Prestita" 
already mentioned. Two of them 7 were formerly in- 
cluded among the Chancery Rolls and were printed by 
Hardy ; 8 they came from the Tower, which was a 
repository both of Chancery and Exchequer Records. 
The remaining four probably came to the Record Office 
all from the Carlton Ride repository of the Ancient 
Miscellanea of the Exchequer K.R. Of these four the 
two Mise are duplicates, the best of which Q Cole has 
printed. Cole has also printed 10 one of the " Prestita " 
but the other has not yet been published. The " Mise " 
are of the twelfth and fourteenth years of John, the 
" Prestita " of the seventh, twelfth, and fourteenth to 

J Exch. Ace. 3/1, 152/1, 349/1 A, 505/4; and K.R. Misc., 1/5. 

2 Henri Legras, in the " Bulletin des Antiquaires de Normandie," 
xxix., 21. 

a See " Proceedings of the Society of Antiquaries ". 2nd Ser. xxv., 
29. 

4 Exch. L.T.R., Misc. Rolls, i/i, 2. 5 Receipt Rolls, I. 

6 Exch. Ace. 249/2. 7 Ibid. 325/21 and 349/16. 

8 "Rotuli de Liberate ac de Misis et Prestitis." 

9 "Documents illustrative of English History" . . . p. 231. 

10 Ibid. p. 270. 



OF THE REIGN OF KING JOHN 261 

seventeenth years, the last l (fourteenth to seventeenth) 
being unprinted and consisting really of separate rolls 
for several years. 

It will be noticed that we have made so far no refer- some gaps 
ence to " Originalia " or to " Norman Records ". 
require some reference to the Chancery as well as the 
Exchequer ; and may therefore conveniently be treated 
together here. 

Originalia. Actually at the Exchequer there is no 
trace of these. The classes of Chancery Records from 
which the Originalia, when they came into existence, 
were drawn give us in the time of John a varying 
amount of Exchequer information, and to these we must 
go direct. We may note them in the Chancery. 

Liberate Rolls. There are three of these belonging to 
the second, third, and fourth years of John ; all were 
printed by the Record Commission 2 with an intro- 
duction by Sir Thomas Hardy; but we shall have a 
small addition to make to them later. 

Close Rolls. These again were all printed by the 
Commission with an elaborate introduction, also by 
Hardy. Including three duplicates they number fifteen 
rolls covering the sixth to the ninth and the fourteenth 
to the eighteenth years of the reign. We may add that 
two fragmentary membranes have been recently dis- 
covered and added to the rolls of the sixteenth and 
seventeenth years; 3 these fragments fill a number of 
gaps in the printed version. 

Fine or Oblata Rolls. Including three duplicates 
there are eleven of these covering the first, second, third, 
sixth, seventh, ninth, fifteenth, seventeenth and eigh- 
teenth years of John's reign. These, once more, were 
all printed by the Commission under Hardy's editor- 
ship. We shall have later to say a few words with 

'Exch. Ace. 325-2. 

2 " Rotuli de Liberate ac de Misis et Prestitis." 

3 Close Rolls, 10 and 12. 



262 FINANCIAL RECORDS 

regard to the nature of these Chancery Rolls. For 
the moment we may leave them, adding, in passing, a 
mention only of the Patent and Charter Rolls, less 
directly connected with Exchequer procedure ; to- 
gether with a note that we shall have ourselves a small 
fragment to add to the Fine Roll class. 

Norman Re- Turning now to Norman Records we have to 
examine two divisions, Exchequer and Chancery. 
The first of these, that of the Norman Pipe Rolls, 
includes duplicates, presumably Chancellor's Rolls 
though they are not known under that name ; it 
consists now of a collection (formed in 1862) of 
eighteen rolls, fourteen being of the reign of John 
and four of an earlier date. These rolls were edited 
in 1840 and 1844 for the Society of Antiquaries by 
Stapleton. Unfortunately the later arrangement does 
not correspond with that of Stapleton and it is a little 
difficult to decide which rolls he used. It is clear that 
he collated the duplicates to some extent ; but that he 
had not access to all of them is plain from the fact that 
he printed 1 the very fragmentary Roll No. 2 (mem- 
brane 1 6), of which No. 6 is a practically uninjured 
duplicate. It may be convenient to add here as a foot- 
note a key to the Rolls used by Stapleton. 2 We have 

M. 109. 

2 Stapleton, i. 1-106 = Norman Pipe Rolls, 10. 

109-123 = i. 4 

127-288 = Norman Pipe Rolls, 18. 
ii. 289-497 and 512-530 = Norman Pipe Rolls, 2 and 6. 

501, 502 = Norman Pipe Rolls, 5. 

505-511 = 9 and 3. 
[512-530, see above.] 

53 I ~537 = Norman Pipe Rolls, 4 and n. 

538-548 = 7 and 8. 



549-560 = 
560-568 = 
568-571 = 
572-574 = 



1 6 and 15. 

14. 

13 and 12. 



OF THE REIGN OF KING JOHN 263 

to add the fragment discovered and printed by De- 
lisle, 1 though this does not belong to our period. We 
shall have later to make a small addition ourselves. 

We come finally to the Norman Rolls of the Eng- 
lish Chancery. These form part of a single series ap- 
plying in turn to the reigns of John and Henry V. 
Hardy printed six rolls for the first of these reigns 
(three of the second year and one each of the third, 
fourth, and fifth) and one for the second, with an In- 
troduction which is for once, definitely inadequate. 
He does not consider the question whether a single 
title is really applicable to the rolls of the two reigns 
nor, though he gives some faint indication of it, the 
fact that the rolls of our period are themselves by no 
means a homogeneous series. His work was con- 
tinued (for the reign of Henry V) in a calendar in the 
Appendix to the Deputy Keeper's Forty-second Report 
without any recognition of the fact that in the mean- 
time an entirely new Norman Roll of John had been 
added to the series No. i (the rolls are now numbered 
in an order different from that in which Hardy printed 
them) ; and that a new membrane had been added to 
one of the Rolls (No. 6) 2 already published. The 
extra roll need not, in point of fact, trouble us here as 
it has in reality nothing to do with Normandy ; being 
a portion of an English Liberate Roll. 

In concluding our summary we must add, for com- 
pleteness a reference to the Plea Rolls of this reign ; 
there are fifty-five Plea Rolls of the King's Court and 
twelve belonging to the class of " Visitational " juris- 

Nos. 5, 12, and 13 are small rolls (see below, p. 272). Of the 
remainder all save Nos. 1,2, 10, and 18 are now single rotulets ; but it 
seems clear that in Stapleton's time they were fastened together to some 
extent (see his Introduction, p. ix.). 

1 " Recueil des Actes de Henri II," p. 334. 

2 It was added in 1838. 



264 FINANCIAL RECORDS 

dictions ; l also to the early files of Feet of Fines con- 
taining fines of our period, some of which have not 
been printed. 

^ e have thus ' un P ubnsned and unconsidered, 
besides the Pipe Rolls and all save one of the 
Chancellor's Rolls, two Memoranda Rolls, five docu- 
ments in the class of Exchequer Accounts, 2 two in 
that of Receipt Rolls, one and a fragment in that of 
the Norman Rolls, one at least in that of Norman Pipe 
Rolls, and two fragments in that of Close Rolls ; to- 
gether with a tally and an original writ of Liberate. 
The three last named need not detain us. We have in 
addition a body of unpublished Plea Rolls and Feet of 
Fines, the indirect evidence from which might be con- 
siderable ; but this again is beyond our scope. And 
we have suggested that the significance of the Chan- 
cery Rolls published by the Record Commission has 
by no means been exhausted as yet. In opening some 
investigation of these possible sources of information 
we may conveniently recapitulate one or two points 
with regard to Exchequer procedure which it is very 
desirable to remember. 

A. Touching the Relation of the Upper and Lower 
Exchequer. (i) Receipts of the King's Revenue do 
not necessarily all appear on the Pipe Roll. I have 
noticed elsewhere the cases of Jewish Receipts 3 and the 
collection of William Cade's debts. 4 Moreover the 
whole of the revenue of the Crown does not necessarily 
go through the Lower Exchequer ; we have already 
mentioned the possibilities of the "Camera ". 

(2) In the case of Issues the Pipe Roll is even 

1 See, for example, the " Roll of the Bedford Eyre of 1202," printed 
by the Bedfordshire Hist. Records Society. 

2 One being the "Prestita" Roll. 

3 "Jewish Hist. Soc. Proc." viii. 

4 " English Hist. Rev." xxviii., quoted above. 



OF THE REIGN OF KING JOHN 265 

more incomplete. Essentially it covers only the cases 
where an official has money paid to him for which he 
is held to account; these being generally cases in 
which the money is not paid out of the Treasury at 
-all but subtracted in advance by the accountant, to 
meet current expenses, from that which he will be 
expected to pay in. 

It is thus seen that the Pipe Roll is not a guide to 
receipts and expenditure, and that the only relation 
between the Upper and Lower Exchequers is that the 
latter is required to give evidence, not of all its receipts, 
but of such only as establish or disprove the state- 
ments made by an accountant at his Audit. 
. B. As to Norman and English Administration. 
Historians have been agreed up to the present that 
the Norman " Scaccarium " is merely a reproduction 
in Normandy of the English one, mutatis mutandis^ 
made for convenience ; similarly a Norman " The- 
saurus" reproduces the English "Thesaurus ". Since 
there is no audit of the King's Receipts and Issues as a 
whole, and Exchequer procedure acts only as a check 
upon the local accountant, there is no inconvenience 
in this. Previous writers, however, have taken the 
existence of a similarity in points of surface procedure 
between the two rather for granted ; in spite of the 
1 warning of the " Dialogus ". Delisle for instance, in a 
work x which still stands so far as regards its survey of 
the divisions and resources of Normandy as a revenue 
producing country, treats the actual machinery of the 
" Scaccarium " in somewhat cursory style, boldly 
.applying the " Dialogus " description of the English 
institution to its Norman parallel and even importing 
into the latter, without evidence, a system of "Orig- 
inalia"' 2 which did not adorn the English Exchequer, 

1 In " Bibliotheque de 1'Ecole des Chartes," quoted above. 

2 P. 274- 



266 



FINANCIAL RECORDS 



Some Notes 
on these Re- 
cords. The 
Pipe Rolls. 



so far as we know, till a later date. Beyond an in- 
accurate description of one of Stapleton's Rolls as a 
Receipt Roll he has not found it necessary to make 
any serious attempt, nor have his successors Monsieur 
Valin and Prof. Powicke, to establish the existence 
and scope of other records or record processes in 
Normandy ; l nor, though it is agreed that one chief 
executive office, one chancery, controlled both coun- 
tries, have they looked very far for any possible special 
treatment by the Chancery of Norman affairs. 

We turn, now, to the "Pipe Rolls" of the reign 
of John. The bulk of these, as has been said, is so 
enormous that it would be unwise even to attempt to 
sketch out all the problems which the student of them 
will be called upon to discuss when they, with those 
of Richard I, are in print. It must suffice to venture 
one or two theories as to the lines upon which growth 
was going on in the class during our period ; growth, 
that is, away from originally simple essentials into the 
utter confusion which undoubtedly reigned at the end 
of the thirteenth century and the highly complicated 
character which, we know r , marked these Records 
from the latter part of Edward II's reign onwards. 
It would be particularly unwise since, apart from 
the bare outlines just suggested, no one has yet 
made such research as would enable us to get a 
clear and detailed idea of the state of things which 
was in existence in these later periods. 

Under these reservations we may venture here to 
put forward the fairly obvious suggestion that later 
developments of the originally simple Pipe Roll 
hinge entirely on the attempt to apply this essen- 

1 Prof. Powicke has of course referred to other administrations 
besides the financial one in Normandy; for instance (p. 85) that of 
the holding of " Common Pleas at the Norman Exchequer " ; cf. Valin, p_ 
250 and Raskins ("American Hist. Rev."), p. 279. 



OF THE REIGN OF KING JOHN 267 

tially simple machinery either to business for which 
it was not designed or to business of a bulk so vastly 
increased that it broke down under the sheer weight. 
I have suggested l that as early as Henry II the 
machinery used for getting in, or for assuring, what 
was then the greater part of the King's income was 
proving quite inadequate to provide him with cash ; 
that so early as 1166 the King was habitually antici- 
pating many and large sums by means of assignments. 
This alone introduced cross references into the ac- 
counting to an extent almost unbearable ; and it is 
to be remembered that the use of these convenient 
assignments was continually growing. Again the 
sources of income which figure in our original pic- 
ture of the " Scaccarium " all increased in bulk ; the 
cases, for instance, which came into the King's Court, 
and consequently the fines and amercements, alone 
sufficed by their enlargement to upset machinery 
based upon an idea that all the accountants could 
be assembled at the Annual Exchequer in a limited 
period, their accounts audited and the roll describing 
the process written up while that process was going 
on. Besides, the actual numbers of sources of income 
increased ; and though (as in the case of the Jewish 
talliages) many of them do not come under the Pipe 
Roll audit, yet we may argue, I think, that Exchequer 
opinion would be always working up towards a state 
of affairs when these new sources should be under 
the same restrictions as the old throughout its long 
history the Exchequer was always trying to sub- 
ordinate the new (whether in material or forms) to 
the old ; not only this, but it would be we know it 
was working up always towards the inclusion of the 
spending departments in the Audit ; that is to the 
state we find when Foreign Rolls and the like 
1 " English Hist. Rev." loc. cit. 



268 FINANCIAL RECORDS 

modifications appear. Finally in considering the de- 
velopments we may expect to find at the Exchequer, 
or indeed in any administrative department, we have 
always to reckon with the fact that John's reign fol- 
lowed that of Richard, a period which introduced new 
elements of confusion while it is scarcely likely to 
have found time for much rearrangement or reform. 
The early Pipe Rolls, at least, of John's reign con- 
tain references to numerous arrears of the time of his 
brother ; an entertaining instance may be found in 
the cases of certain people who still owed substantial 
fines for siding with Count John. 1 

Taking all these considerations into account we 
may confidently anticipate, that the reign of John 
will find the Exchequer system as it was badly hit 
at certain definite points. There is a difficulty of 
getting business through in anything like reasonable 
Audit. time, a tendency of the Audit to spread over a longer 

and longer period convention makes its proceedings 
begin at Michaelmas, but from Michaelmas they ex- 
tend for an ever-lengthening time. The resulting 
confusion since the sheriff of one county accounts 
in October while he of another is perhaps not dealt 
with till March between the accounts of a given 
year and those of the preceding and succeeding ones 
is potentially very great ; there is confusion also be- 
tween different kinds of Exchequer records at any 
given date ; for example the Yorkshire receipts of 
March of a given year might belong to the York- 
shire audit of the previous or following year. A Pipe 
Roll which shall be written up at the actual time 
of audit becomes, in fact, an impossibility. Further 
there is a legacy of arrears, and these we may say 
are increasing. Finally there is a confusion between 

1 " Quia fuerunt cum comite Johanne ; " cf., e.g., " Chancellor's 
Roll," 3 John (Record Commission), p. 18. 



OF THE REIGN OF KING JOHN 269 

transactions which go on the Pipe Roll and those 
which do not, a confusion that is between Treasury, 
or " Recepta," matters on the one hand and " Camera " 
matters on the other, which may be productive of ex- 
treme inconvenience in public administration. 

From these facts again we may deduce the pro- 
bability of an attempt to solve Exchequer problems 
on certain definite lines. First, we may expect to 
find preliminary and supplementary processes of all 
kinds going on at the Upper Exchequer before and 
after Audit, all the year round in fact. Secondly, we 
may deduce a Pipe Roll made up beforehand and 
consequently having to be either corrected at Audit 
time or else left blank or incorrect in parts ; and 
again we may expect the beginning possibly of some 
organized forms of new account some attempt (it is 
the obvious remedy for congestion at the final audit) 
at a preliminary " Compotus " in certain chosen cases ; 
and certainly of the habitual accumulation of a great 
many vouchers and Memoranda. This last in partic- 
ular the extension of the habit of keeping Memor- 
anda is a fairly certain deduction ; the mere lapse of 
time which may occur between the preliminary inter- 
view of the Exchequer officials with an accountant 
and his final examination, the mere amount of con- 
fusion that may be caused in his accounts by the fact 
that he has paid in money in two or three different 
ways and places these and other considerations such 
as we have adumbrated above must, if anything at all 
is to be accomplished at the Exchequer, connote some 
attempt at organized Memoranda of extra-audit trans- 
actions. It is to this class of Records therefore that 
we must turn for indications of the new developments 
in audit procedure which were produced by the time 
and circumstances of the reign of John. 

Before we do this, however, we may perhaps glance 



2/0 FINANCIAL RECORDS 

The Roils of at the Norman Exchequer. We know that the two 
Exchequers are at least closely connected; and we 
know 1 that Richard of Ilchester was transferred to 
the Norman Exchequer in 1176, presumably in order 
to effect changes of some kind whether these were in 
the direction of differentiation from or approximation 
to the English model. 

In the first place, are these Norman Pipe Rolls so 
close to the English ones in small surface matters as 
is assumed by most people and to some extent by 
Stapleton ? The eighteen rolls fall into two groups. 
The smaller of these, consists of only three rolls. 
One of these occupies two pages 2 in Stapleton and is 
fragmentary; we may say at once that most of the 
missing part is to be found in the unprinted Exchequer 
Account already referred to 3 which has hitherto been 
described as a Mise Roll and ascribed to the reign of 
Richard I ; the two fragments form together an almost 
complete account of the receipts and expenditure of 
Warin de Glapion, Seneschal of Normandy, in 1200/1. 
The two other rolls are duplicates and are similar ac- 
counts of Robert de Veteri Ponte, then bailiff of the 
Roumois, in 1203. The larger of the two groups is 
that of the Norman Pipe Rolls proper ; but they differ 
from the English ones in several important respects. 
All are of much the same breadth 4 (i i inches) but this 
is not the same as that of their English contemporaries 
which are about 1 5 inches. In length again they vary 
between 3 and 8 feet, the largest rolls consisting of 
a number of membranes sewn head to tail (the Eng- 
lish rolls practically never exceed two). Another point 
of difference is found in the way in which they are 
written. 5 Some 6 are indexed at the tail of the mem- 



p. 123. 2 ii. 501, 502. 3 Exch. Ace. 349/1 A. 

4 Rolls 10 and 18 (especially 10) are slightly broader. 
5 Cf. Haskins ("American Hist. Rev."), p. 279. 
6 Rolls 2, 10, and 18. 



OF THE REIGN OF KING JOHN 27 

brane, as all the English ones are, and they have place 
headings and, after the form, subject headings which 
correspond, "mutatis mutandis," with those on the 
English ones. But they impress one rather as having 
a common tradition with their English contemporaries 
than as being written by scribes trained in the same 
school. It is possible that this surface impression is 
incorrect, but in any case it is not improbable that a 
palaeographical examination of the two sets of rolls 
might establish points of importance with regard to 
the relations of their producers. 

But there is one more noticeable difference to be 
mentioned. We have already alluded to the inclusion 
in the Pipe Roll of accounts other than those of the 
normal accounting officials as being one of the obvious 
results which must spring from the widening of the 
sources of revenue and as one of the great changes, 
crystallized in the fourteenth century, of which earlier 
traces might be found. The distinction of such from 
the ordinary accounts which appear on the Pipe Roll 
are, first, the fact that they may be rendered by all kinds 
of officials ; secondly, the fact that they are more 
marked by division into receipt and expenditure, each 
of these being usually given a " Summa Totalis " ; and 
finally, the fact that the receipts may represent sums 
not collected from the King's subjects to be paid into 
the Exchequer and only expended upon the King's 
special order, but sums received from the Exchequer 
expressly for the purpose of definite expenditure. 
Now the germ of such accounts is to be found in 
-certain early Pipe Rolls and in certain exceptional 
cases. Thus the Warden of a Mint must necessarily, 
from the nature of his business, account in some such 
way as that just described. Besides this, cases will be 
found such as that of the Sheriff of Kent who was 
charged with military building on a large scale at 



272 FINANCIAL RECORDS 

Dover in 32 Henry II l ; in that case the sheriff renders 
account, among other matters, " de recepta sua de 
Thesauro ". 2 

The Norman Pipe Rolls seem undoubtedly to carry 
this principle further and it is possible that we see 
here Richard of Ilchester adopting at the Norman 
Exchequer reforms which his English experience had 
shown him to be necessary, but which, for various 
reasons, were delayed in England till a later date. 

This may lead us to a discussion of the small second 
group of three Norman Pipe Rolls. 3 These rolls 
are narrow (8 or 9 inches) and short. They use the 
phrases of the Pipe Roll " reddit compotum," " est 
quietus," and so forth : but they are also distinguished 
by new ones and they are distinguished particularly 
by a division into two main parts Receipts and Ex- 
penses with a final balance. Not to linger over the 
description they are strikingly similar to the later 
" compotus " of the English Exchequer, the preliminary 
accounts compiled from vouchers in the King's Re- 
membrancer's department which we noted above or ta 
the final copy of these enrolled among the Foreign 
Accounts ; and they show us first the Seneschal and 
then Robert de Veteri Ponte expending money re- 
ceived for the purpose from the Exchequer even from 
the English "Thesaurus". We have in fact at the 
Norman Exchequer an anticipation of two most im- 
portant points in later English Exchequer processes 
the auditing of foreign accounts, including a consider- 
able quantity of accounts of expenditure ; and the 

1 " Pipe Roll Soc." p. 293 : cf. Pipe Roll, 58, m. 5, the account of 
the archbishopric of Canterbury. 

2 Probably the " compotus de receptis suis " will be found to occur 
fairly frequently under John when the Pipe Rolls of this reign are 
printed. 

3 I.e. Rolls 5, 12, and 13 (Stapleton, pp. 501, 502, and 568-71). 



OF THE REIGN OF KING JOHN 273 

auditing of them apart from the ordinary Pipe Roll 
process and on a different kind of roll. 

This is to say that we have found, if our suggestion 
is correct, an anticipation of the later attempt to meet 
difficulties of time and place, caused by increase in the 
number and size of accounts, by means of a separate 
audit. Let us turn now to consider the other ex- 
pedients which, we have suggested, must have grown 
into a greatly increased use to meet the same diffi- 
culties the Memoranda which, in an embryo form, 
we saw existing in the time of the " Dialogus ". 

In this connection we may examine in some de- The first 
tail the first of the two Memoranda Rolls already Memoranda 
noted ; * though it is to be remarked that neither in 
this case nor in that of many other Records mentioned 
in this paper can anything approaching exhaustive 
treatment be attempted ; indeed the present roll 
bristles with points of administrative interest which 
we cannot even notice here. This roll bears on its 
first membrane the title, " Communia Memoranda de 
termino Sancti Michaelis post mortem Regis Ricardi 
anno regni Regis Johannis primo ". It consists of 
sixteen membranes all of much the same breadth 
(about 6 inches) with six small pieces of parchment 
considerably narrower. Membrane 2 is entitled, " Item 
Communia Memoranda Mich.": and membranes 3, 4 
" dorse," 5 "dorse," and 6 are similarly described. Of 
these membrane i has the sub-title, " Isti sunt vice- 
comites qui venerunt ad Scaccarium in crastino Sancti 
Michaelis vel pro se miserunt anno regni Regis Johan- 
nis primo ". Membrane 5 " d " (which is continued 
by membrane 6) has the sub-title, " de singulis vice- 
comitibus qui ponunt plura debita super singulos ". 
The meaning of this is made clearer by the form adopted 

1 L.T.R., Misc. Rolls, 1/3. 
18 



FINANCIAL RECORDS 

on the next membrane "de vicecomitibus qui ponunt 
debita unus quisque super alterum," to which a frivo- 
lous scribe has added what is possibly the earliest 
known official jest. 1 The remaining membranes are 
all of the same kind, each containing matters grouped 
together under counties. Thus membrane 4 deals with 
Surrey and Kent, membrane 5 gives us the affairs of 
Nottingham and Derby, membrane 9 " d " those of 
Oxford, which are continued on membrane 10 ; and 
so forth. Membrane 13 is devoted to Jewish business. 
The small membranes may be left for the moment. 

It is clear that we have here rolls similar to the 
later series of Memoranda Rolls ; the arrangement 
makes this plain, giving us, as it does, " Adventus 
Vicecomitum " on the first membrane and so consider- 
able an amount of the well-known later division of 
" Communia ". It is fairly clear also that we have 
not here the first of the series it is not sufficiently 
experimental ; and indeed there are definite references 
to earlier Memoranda. But to consider the " Com- 
munia " in rather more detail : 

A large number of the entries under this heading 
consist of " dies dati " days assigned to Accountants 
for their auditing or respites or adjournments. There 
are about sixty such entries and roughly speaking they 
follow a chronological sequence ; though to make this 
nearly perfect we must suppose that membrane 4 " d " 
should properly follow membrane 2. Thus starting 
with adjournments which are mostly for October or 
November we work down to those for April. Inter- 
spersed with these entries we have about a dozen 
cases where it is definitely mentioned that so-and-so 
"venit hie" or "venit coram Baronibus " on a partic- 

1 "Alter alterius honera portate et sic adimplebitis legem scaccarii." 
' 2 There is nothing in the contents of the face of the membrane to 
preclude this. 



OF THE REIGN OF KING JOHN 275 

ular day ; these again are chronological, extending 
from October to the end of March. We have thus 
in the " Communia " a record which is being compiled 
day by day during the Michaelmas term ; but the 
entries in which never refer to any audit which was 
actually in hand at the moment of writing. This, 
however, does not end the contents of the " Com- 
munia ". Interspersed in this regular chronological 
sequence are a large number of entries recording that 
a fine has been made or is due or has been paid, that 
the King sent his writ u in these words," that so-and- 
so is not to be summoned on such-and-such an ac- 
count, that a writ has been sent to the sheriff, that 
an account is to be transferred from one membrane 
to another on the Pipe Roll, and so forth. It is to 
be noted that all " Communia " entries have their 
counties noted in the margin. 

Now this last section of entries is not very different 
in character from those which appear on the other 
membranes those arranged under counties ; though 
these latter tend to be distinguished by the use of 
such phrases as " loquendum cum . . ." to introduce 
them and in a number of cases have notes obviously 
added to them at a later date (membrane 8 actually 
has space deliberately left for such notes). On the 
whole I think there can be little doubt that, while the 
"Communia" include (i) what are later separate 
sections in the shape of " dies dati " and various 
" Brevia," (2) matters noted for reference when some 
account, not yet audited, shall come up or in future 
terms ; the county membranes give us matters left 
unsettled during the auditing of each sheriff's ac- 
counts. This close connection of the county mem- 
branes with the actual making of the Pipe Roll is 
supported by the fact that their entries are found to 
correspond with cases on the Pipe Roll where the 



276 FINANCIAL RECORDS 

essential words of the entry (the " debet " or " reddit 
compotum ") are left blank. 1 

If this explanation be correct we have established 
the use of the Memoranda in John's time not only for 
the noting of calendar arrangements made with ac- 
counts but also (i) for recording all kinds of current 
business which was now too voluminous to be dealt 
with without some kind of Minutes ; (2) the easing of 
the calls of auditing upon a limited amount of time 
by the regular reservation of matters which were 
doubtful or perhaps controversial. This second diffi- 
culty that of time was met later almost entirely by 
the expedient of preliminary audit, of which we noticed 
traces above. 

We have not quite exhausted the contents of 
our first Memoranda Roll : there remain the small 
membranes and the Jewish membrane. The small 
membranes include one which again foreshadows a 
well-known division of the later Memoranda Roll, 
giving us amercements of sheriffs who had failed to 
attend at Easter and appointments of days for views 
of accounts. 2 This last is obviously important with 
regard to the matter of shortening the taking of ac- 
counts already referred to ; but we have not sufficient 
details to found suggestions upon it. The remainder 
of the small membranes are Memoranda giving the 
details of larger sums for which various persons 
have to account ; in a word they are in the nature 
of " estreats " or of " particulars," of which we shall 
have to say a little later. 

The Jewish membrane is headed, " Compotus Bene- 

1 It is perhaps worth noting in this connection that membrane 9 of 
our roll is annotated at the foot, Pipe Roll fashion, with the names 
of the counties which appear on it. 

2 Also foreshadowed in the Memoranda described in the " Dialogus " 

(p. 115). 



OF THE REIGN OF KING JOHN 277 

dicti de Talemunt de debitis et finibus Judeorum 
Anglie a festo purificacionis anni noni regis Ricardi 
usque ad festum Sancti Hillarii anno Johannis primo ". 
It is to be noted that this is not the actual " Compotus " 
of Benedict but Memoranda upon it. It is particularly 
interesting from many points of view ; but the whole 
question of the administration of moneys paid by the 
Jews is so complicated that it is difficult to deal with 
any sections of it within a reasonable space. We may 
note, however, that the payments for which this Jew 
was responsible were apparently not intended to 
appear, and did not appear, upon the Pipe Roll ; 
while on the other hand he apparently did account 
for them. 1 I have endeavoured elsewhere 2 to show 
that later, at any rate, there was a distinction between 
Receipts from Jewish talliages and Receipts from 
other Jewish sources ; the latter (not the former) 
being collected by the sheriffs and figuring, though 
obscurely, 3 in their Pipe Roll accounts and in the 
ordinary Memoranda Rolls ; whereas talliage matters 
did not appear on the Pipe Rolls and, if they required 
Memoranda, must have had special ones devoted to 
them. Since the matters here noted are of a very 
general character and are yet stated to be the subject 
of a " Compotus," we may conjecture that we have 
here traces of an early experimental stage in the 
Exchequer treatment of Jewish administration. 

To sum up, we have in this Memoranda Roll not 
only interesting foreshadowings of the Memoranda 
Rolls we know later and indications of earlier ones in 

1 Cf. the Oxford membrane of the Pipe Roll of this year where 
various Jewish debts are mentioned but have a note added : " Set 
Benedictus de Talemunt respondet ... in compoto suo ". 

2 " Jewish Hist. Soc. Proc.," already quoted. 

3 They may be disguised, for instance, in the phrase, " de pluribus 
debitis ". 



278 FINANCIAL RECORDS 

the same series now lost ; we have also certain definite 
signs of the result upon Exchequer administration 
of the increased size and number of accounts. First, 
the Memoranda of the " Dialogus " developed into 
" Communia " in which were set out in an orderly fash- 
ion the various " notanda " of a busy department ; these 
"Communia," throwing off, as it were, smaller special- 
ized divisions for certain regularly recurrent items, 
produced the Memoranda Roll as we know that record ; 
and in the example we have been examining may be 
found in embryo all the varieties of matter which the 
subsequent rolls contain. 1 Secondly, our roll shows us 
attempts being made to meet the second great difficulty 
of the period not only the increased business but the 
consequent increased demand upon available time. In 
our roll it is met by the reservation of special points ; 
later it was met by a system of preliminary audits, the 
adoption of which eliminates the necessity for county 
membranes which consequently disappear from the 
later Memoranda Rolls. It is even possible that we 
have in our roll an indication of the trying of this 
method of separate audit also in the case of the Jewish 
matters. 2 Finally, the Memoranda Roll of John's first 
year gives interesting testimony to the fact that all Ex- 
chequer development turned on the necessities of the 
Pipe Roll and its scribes. Elsewhere 3 1 have suggested 
that even the early Receipt Rolls, though the " Dia- 
logus " tells us they were made in the lower Exchequer* 
presumably for the convenience of that office, were 
conditioned in all the particulars of their form and 

1 Including even pleadings : see membranes 2 d, 3. 

2 On one or two later occasions (cf. " Jewish Hist. Soc." loc. cit. p. 37) 
we have Jewish accounts for no particular reason coming to normal 
audit and appearing among the Foreign Accounts. Generally speaking, 
however, the King was content with receipts from them and controlled 
these absolutely. 

3 "Jewish Hist. Soc. Proc.," quoted above. 



OF THE REIGN OF KING JOHN 279 

making by the necessities of the Pipe Roll scribe. 
The same might be said of the county membranes of 
the Memoranda which we have been discussing their 
arrangement, writing, and form all confirm the inference 
which may be made from their contents. And in the 
small membranes which we have noticed what have 
we but those rolls or notes of particulars the existence 
of which elsewhere is not infrequently noted l by the 
Pipe Roll scribe when he has not time or patience to 
insert their details in his roll ? These are the germs 
of the collection of vouchers by the King's Remem- 
brancer which has given us our modern class of 
"Exchequer Accounts, etc." 

We have dealt at so much length with this impor- Other 
tant Record that there is little space left to 
others like or connected with it. We may take these 
in conjunction with the vouchers. It will be remem- 
bered that we have to deal with three 2 documents from 
the class of " Exchequer Accounts" and one from the 
" K.R. Miscellanea ". To these we may add the com- 
panion roll to that just described L.T.R. Miscellane- 
ous Rolls, 1/4 : but we may eliminate the " Miscel- 
lanea " document, reserving it for treatment with the 
Chancery Fine Rolls. Taking first the last of these, a 
roll of about a dozen membranes with a few smaller 
membranes or slips, we find we have to notice most of 
the features which were prominent in the previous 
example. We have the title " Memoranda " with two 
interesting variants which suggest a still fluid state 
"Memorialia" and " de Memoriis" on membrane 8: 
and we have apparently " Communia " on membrane i. 

1 Dr. Round has referred to one or two in a note in the " English 
Hist. Rev. " (vol. xxviii., p. 525). See also p. 280 below. 

2 See above, p. 260. One of the four documents from this class there 
mentioned we eliminated subsequently (p. 270) as being a fragment of 
a Norman Exchequer Roll. 



2 8o FINANCIAL RECORDS 

We have "Adventus Vicecomitum " (under that title) 
on membrane 2. We have the same distinction be- 
tween "Communia" entries and membranes assigned 
to particular counties. We have letters from the King 
to the barons (m. 3). And we have again a special 
section devoted to the Jews (m. 13), entitled " Com- 
potus," though it is really only a number of Memo- 
randa upon an Account. In this connection we have 
to note an innovation, for a similar heading on mem- 
brane 12 relating to Hugh de Nevill introduces us to 
an actual rough " Compotus," 1 which seems to take 
us a step towards the use of preliminary audit. This 
roll covers the Easter and Michaelmas terms of the 
tenth year of John, with some reference to the preced- 
ing year. The whole appears to be an incomplete set 
of membranes. Two final points to be mentioned are 
concerned with the use of the word " Extracta " as a 
title on a membrane (m. 14) containing lists of debts, 
and with the nature of the small membranes which 
are here, as before, to be classed as either " Estreats " 
or " Particulars ". 

In connection with this last point it is to be noted 
that even in later periods it is very frequently impos- 
sible to decide whether an isolated list of entries in the 
form "De Johanne de London v.s." is an "Estreat" 
from other Records showing amounts which are due, 
or a " Particular " giving the details of sums actually 
handled elsewhere (on the Pipe Roll) but handled there 
only in gross. The presence, of course, of the word 
" Extracta" makes it certain that we are dealing with 
a list of debts which are to be exacted ; but other 
of these lists, notably the small membranes on the 
Memoranda, are more probably Particulars. 

This may serve to introduce us to a group of rough 

1 Cf. other remarks relating to this rather mysterious accountant, be- 
1 ow, p. 296. 



OF THE REIGN OF KING JOHN 281 

rolls giving, under a county arrangement, lists of debts 
which we may conjecture to have been left over at the 
end of a term of audit and listed for the purpose of a 
summons for the next " Scaccarium " ; indeed we have, 
in one or two places, items cancelled with the note 
" ponitur in submonicione " or " in Rotulo est ". This 
group includes, besides membrane 14 of the roll just 
dealt with, three documents of the next reign, 1 which 
we may perhaps mention in passing because they cor- 
respond so exactly with seven membranes and a frag- 
ment out of the twenty-two which make up Exchequer 
Accounts, 505, No. 4, a roll in very bad condition which 
is ascribed to our period and may belong to it ; though 
the evidence for the date is not on any of these eight 
membranes. It is to be noticed that certain mem- 
branes are indexed with a county reference at the 
foot and have added the word " Em','' presumably for 
" Emendatur " or some other part of that verb ; mean- 
ing, apparently, that the list has been checked. 

We are left with the bulk of the roll last mentioned Norman 
(Exch. Ace. 505/4) and with Exchequer Accounts, 152, Memoranda - 
No. i, 2 still to be described. BottTare of considerable 
importance for they are Memoranda of the Norman 
Exchequer. 

The first, a collection of thirteen membranes and a 
fragment, was joined by accident to the English mem- 
branes already noticed (as we may conjecture) during 
a search for information about forests conducted, as 
.appears by an endorsement, a century or so later. 

1 Exch. Ace. 505/2 and 3, already mentioned as having been 
ascribed, wrongly, to the reign of John ; and L.T.R. Misc. Rolls, 
1/5. The first and last of these are early in the reign of Henry III 
(about the third year) ; the second is later (after the twenty-fourth year). 

2 Monsieur Legras in printing this document has commented on a 
number of subjects of interest connected with it, but not to any extent 
upon its administrative significance. 



282 FINANCIAL RECORDS 

However that may be, they are worthy of more study 
than we have space to give them here. It must suffice 
to note summarily a few points. Thus they belong 
apparently to the year 1201 or 1202. Some of them 
are similar (" mutatis mutandis ") to the English rolls 
of debts just mentioned, and have references to the 
(Norman) Pipe Roll and Audit summonses; we may 
note in connection with some of these the use of the 
words " Extracta " and . " Extracta Memorandorum " ; 
the last supporting the suggestion made above (in 
connection with the use of "Extracta" in the English 
Memoranda) that these lists were made up at the close 
of a session of the Exchequer from the Memoranda of 
the term. On another membrane we have Memoranda 
precisely similar to those in the English "Communia" 
of terms given for rendering account; and notes be- 
ginning " Sciendum " or " . . . debet respondere " ; all 
annotated in the margin with the names of the dis- 
tricts to which they refer. But perhaps most re- 
markable are two membranes dealing with Imprests, 
Receipts in money and kind by Warin de Glapion and 
others, and expenditure at Rouen and other places 
over a period named ; T and mentioning the receipt (at 
the Norman Exchequer) of a "Rotulus de Camera 
Regis ". The significance of all this information is 
obscure, but it clearly indicates proceedings both 
complicated and varied, showing at the same time a 
close connection with the English Court and distinct 
individuality at the Norman Exchequer. 

The other Norman document of a Memoranda 
character is a single membrane having no date (Mon- 
sieur Legras puts it early in the reign of John). In 
several places it is entitled, " Extractus Memorand- 
orum "; also it has a note "emend'," and another 

1 1 have not been able to make this correspond with the itinerary of 
King John at any time in Normandy. 



OF THE REIGN OF KING JOHN 283 

" ponitur in rotulo " ; all points connecting this with 
the documents we have been noticing. It has, how- 
ever, two characteristics of its own. One is a vertical 
line drawn through the part to which the note " poni- 
tur " appears to relate a familiar device in later Ex- 
chequer procedure. The other is the fact that we 
have here apparently not so much Memoranda for 
the use of the Court as instructions to an official 
who was to collect the debts : " de te ipso " is a 
frequent entry, and it appears that this official, who- 
ever he was, was personally responsible for a large 
number of accounts. 

With this we must leave the question of Memoranda Another 
and Vouchers of the two Exchequers, noting only in Voucher * 
passing an indenture 1 which may be presumed to 
have been a voucher to some kind of account. This 
last very interesting document, which I believe has 
not been printed, gives particulars of the contents 
and disposal of prizes brought in to Portsmouth by 
John's galleys from 25 April to 8 September in his 
thirteenth year. 

This completes, so far as present space and know- The Lower 
ledge allow it, our survey of the Upper Exchequer, 
We turn to the Lower Exchequer, which may be 
quickly dealt with. Of original Receipts, as we have 
noticed, there is possibly one. 2 The person whose 
debt is mentioned on this tally, Jordan " nepos Geru- 
asii," appears in Records from the end of the reign of 
Henry II to that of John: possibly the writing on the 
tally makes the later date more probable. 

Of Receipt Rolls we have practically nothing. The 
very interesting roll of the reign of Henry II, 8 with a 

x Exch. Ace. 31. 

2 Described in " Proc. Soc. Antiq.," 2nd series, xxv. 29. 

:) Printed in facsimile by the London School of Economics. 



284 FINANCIAL RECORDS 

similar one 1 of the reign of Richard I which has lately 
come to light, suggests that the Receipt Roll was 
in origin closely connected with the processes of the 
Upper Exchequer ; the handwriting, though smaller, 
is similar, so is the division into counties. The reign 
of John furnishes us with an important roll showing 
the development out of this state (as the present 
writer interprets it) into that which we find in the 
early years of Henry III. 2 The " John Roll," 3 which 
is devoted to Receipts from Jews, was prepared in 
and for the Exchequer of Receipt. In this roll we 
find the parchment enlarged and the writing made 
smaller than in the previous examples, so that there 
is space for two or three columns abreast ; though the 
Pipe Roll habit of noting the contents at the foot of 
the membrane still persists. It is this type of roll, 
with its fuller contents, its " summe " added at inter- 
vals (a matter which would not concern the Pipe 
Roll scribe), and its make-up (in many cases) with 
membranes of Issues, which seems first to show us 
the idea of a Receipt .Roll applied to the con- 
venience of its makers rather than that of the Pipe 
Roll scribes. 4 

Before leaving this subject we must mention a small 
roll 5 which has always been classed, in modern times 
at least, with the Receipt Rolls, though in character 
it resembles rather the " Particulars " mentioned above 
and though it came to the Record Office from the 
Tower of London. It will be convenient, however, 
to reserve it for illustration of a later point. 

Turning to Issues we have again to note the pre- 

1 Receipt Rolls, i. 

3 Ibid. 3 and following. This point of view with regard to the early- 
Receipt Rolls has been developed in a paper in "Jewish Hist. Soc. 
Proc." viii. 

;! Ibid. 1564. 4 See also above, pp. 278-279. 5 Receipt Rolls, 2 



OF THE REIGN OF KING JOHN 285 

servation of only one original, a writ of " liberate " 
now among the "Ancient Correspondence". 1 It is 
interesting because there are only two earlier ones 
known, that printed by Dr. Round 2 and that given 
by Madox. Like Dr. Round's specimen it is sent by 
the Chancellor, presumably in the King's absence. 
Of Enrolments of writs we have no example ; the 
earliest is attached to the earliest complete general 
Receipt Roll belonging to the fourth year of Henry 
III; 3 the earliest example of the later form of roll 
(which gives only a summary of the writ) belongs 
to the twenty-fifth year of Henry VI. 

Leaving for the time the question of the Records chancery 
of financial departments other than the Exchequer ^" s a ^ d o 
we pass to the Records which, though belonging to English. 
the Chancery, affect either directly or indirectly the 
Exchequer processes. 

The first question that faces us is that of the con- 
nection between the collections of the two countries 
together with the possibility already referred to that 
the Norman set are not homogeneous and perhaps 
not all Chancery Records. As to the nature and 
number of the Norman Rolls, as that name was Norman 
understood in the past, we have little to guide us. 
We have notice 4 of the bringing of rolls from Nor- 
mandy but this does not help us : nor can the conclu- 
sions which Hardy 5 based upon an indenture of the 
time of Richard II be relied upon in this particular. 
In point of fact one of the surviving rolls 6 is definitely 

1 A.C. 47 (No. 2). 2 Pipe Roll Society, " Ancient Charters," p. 96. 

3 Receipt Rolls, 3. 

4 Safe conduct for Peter de Leon, " Rot. Lit. Glaus." (Record Com- 
mission), p. 3. 

5 Ibid., Introduction, p. iii. 

6 Norman Roll, 3. It may be convenient here again to equate the 
printed references with the modern references to the rolls. Hardy's 



286 FINANCIAL RECORDS 

of Norman Exchequer origin ; it begins, " Hie est 
rotulus cartarum et cyrographorum Normannorum 
factus tempore Guarini de Glapion' Senescalli Nor- 
mannie . . . assistentibus ad Scaccarium Sansone 
Abbate Cadomi. ..." This is a roll of fines made at 
the Norman Exchequer and of private deeds, includ- 
ing some charters from Henry II and Richard and 
a number from John, enrolled (we may presume) for 
safety among the records of the King's Court, a func- 
tion of the Norman Exchequer of which we have little 
notice elsewhere. 1 On the other hand Norman Roll 
No. i, which has been added to the series since Hardy's 
time, is merely the first part (for the month of April) 
of the first English Liberate Roll ; while No. 7, 
which was printed by Hardy, 2 is a roll of the values 
of the lands of Normans in England after John had 
lost the Duchy. 

Of the remaining four rolls No. 2 (2 John), entitled, 
41 de oblatis receptis," corresponds closely with the 
English Fine Rolls but relates to Norman affairs ; 
the " et mandatum est," when it appears, is addressed 
to Norman officials and there are interesting references 
to summonses to the Norman Exchequer. 3 Roll 4, 
belonging to the same year, is called " Rotulus de 
Contrabreuibus " ; the meaning of this is explained 
below ; for the moment we need only observe that 
the writs are generally addressed to Norman Officials 
or else to persons abroad, while on the other hand 
the dates of the last membrane of the roll suggest that 

page i is Norman Roll, 3 ; p. 22, Norman Roll, 4 ; p. 37, Norman 
Roll, 2 ; pp. 45, 98, and 122, Norman Rolls, 5, 6, and 7 respectively. 

1 The enrolling of private deeds on the English Pipe Roll was 
not unknown : a fee was, of course, paid for the privilege. The 
present roll, however, may prove on investigation to have been put 
together rather for the benefit of the Exchequer than of the persons 
concerned in the deeds. 

2 "Rotuli Normannie," p. 122. " Ibid. pp. 37, 38, 40, 41. 



OF THE REIGN OF KING JOHN 287 

it was made in England. No. 5 (4 John) is a "Rotulus 
terrarum liberatarum et contrabreuium " ; the dating 
of the writs enrolled here (save at the beginning) is 
abroad and itself was presumably made abroad, the 
references, too, are clearly to Norman administration 
we have a special note l of a matter " quod debet 
scribi in rotulo Anglie ". No. 6 (5 John) is a similar 
roll to No. 5 ; it is to be noticed that a fragmentary 
fifth membrane, added in 1838, has never been printed. 
The addresses of writs on this roll are generally 
Norman and the dates all Norman save four at the 
<end, corresponding to John's return from Normandy 
to England in this year. It seems clear that these 
two English-dated writs are only included on the roll 
by mistake ; a mistake in the other direction has a 
special note 2 " in rotulo Anglie totum breue ". 

Now from a later experience of the Gascon Rolls 3 and 
other special Chancery enrolments we may remark that 
a special roll of this kind may either be (i) a roll of 
letters dated abroad, 4 or (2) a roll of letters referring to 
foreign matters ; whether these appear in other 
(ordinary) enrolments or not. What is the principle 
on which the Norman Rolls were made ? 

There is no serious doubt that at this date the 
Chancery still, as a rule, followed the King. There is 
a " prima facie " case therefore for making the Norman 
Roll a roll written in Normandy. I think this con- 
clusion is made almost certain by the ending, already 
noticed, of Norman Roll 4. On the other hand, the 
personal touch of the King being still strong in affairs, 
it is not unreasonable to suppose that Norman affairs 
would rather monopolize the attention of his Chancery 

1 P. 77. 2 P. 107. 

3 See the edition of these by Francisque-Michel and Bemont in the 
series of " Documents Inedits ". 

4 Cf. for example the Gascon Rolls of Edward II. 



288 FINANCIAL RECORDS 

when he was in Normandy and English ones when he 
was in England-; provided, of course, that he was in 
any given year dividing his time pretty fairly between 
the two countries. This probably resulted sometimes, 
by confusion, in a belief that Norman entries should 
go on the Norman Roll resulted, that is, in the inter- 
pretation of this Roll's function upon a subject basis ; 
so that we get contemporaneous rolls of English and 
Norman " Liberate " ; find upon an English Liberate 
Roll Norman entries cancelled " quia in Rotulo Nor- 
mannie " l ; and have, as has been seen, one Norman 
Roll actually compiled in England. The confusion 
would'go so far that the Norman-made rolls, composed, 
as we shall see, entirely of entries having a financial 
interest, 2 would be preserved in Normandy in the 
interests of the Norman Exchequer, although, unlike 
the Exchequer Rolls, they did not owe their existence 
to a separate body of scribes. This would explain the 
presence in the modern series of the Norman Exchequer 
Roll noticed above. 

Turning to the question of the contents of these rolls 
we may say at once that they do not differ generically 
from the English ones ; so that the two sets may be 
treated together. Taking, then, the Norman and Eng- 
lish Chancery Rolls which are of direct Exchequer 
interest we may divide them into two classes, called 
for convenience Liberate Rolls and Fine Rolls. The 
first of these classes contains entries of writs of 
" Liberate " for payments at the Exchequer, as also 
some writs of pardon, of " Computate " and of " Allo- 
cate " addressed to that department. The Fine Rolls, 
alternatively called " Oblata " in early times, contain 

1 Liberate Roll, 2, m. 5. 

2 We never get separate Norman Patent or Charter Rolls in our 
period, but there are plenty of entries of letters patent on the Norman 
Rolls when they concern financial matters. 



OF THE REIGN OF KING JOHN 289 

entries of the sums paid to the King so-and-so " dat 
domino Regi " so much to obtain various privileges, 
licences and exemptions (the ways in which the scope 
of this roll was developed and modified later need not 
here detain us). Our Exchequer interest in the two 
classes resolves itself into two questions : 

1. How far do these Rolls relate to the business of 
the Exchequer and how far to that of the " Camera " ? 

2. How was the information in them imparted to 
Exchequer officials ? 

Let us take the Fine Rolls first. These Rolls are Fine Rolls, 
certainly compiled in the Chancery, not the Ex- 
chequer; this is made clear by plenty of notes' such 
as " hinc mittendum in Scaccarium "^ It is equally 
clear that certain entries, at least, have a definite 
" Scaccarium " interest and we have references to the 
Pipe Roll. 2 It is clear again that the documents used 
by the Exchequer were not our rolls but copies ; for 
we get 3 such a note as this " finis iste non debet mitti 
ad Scaccarium hie quia mittitur superius ''. Moreover, 
it appears that in spite of the " dat domino " and the 
title of the earlier rolls " Rotulus Oblatorum " or 
" Finium Receptorum " the money was not always, 
at any rate, paid on the spot ; this appears by the 
following among a number of entries : 4 " Cives Lon- 
don' dant domino * Regi tria Millia marcarum pro 
habenda confirmacione . . . et carta liberabitur Gal- 
frido filio Petri per sic quod si ilia . . . volunt dare 
suam cartam habebunt si non autem cartam non habe- 
bunt ". 

On the other hand, the interest of Fine Roll entries 
is not always for the Exchequer ; for we have such 

1 "Rot. de Fin." (Record Commission), p. 115 ; cf. pp. 76, 222, 228, 
239, etc. 

2 E.g. an entry (p. 277) cancelled "quia ponuntur in Rotulo". 

3 P. 296. 4 P. ii. 

19 



2 9 o FINANCIAL RECORDS 

notes as "non mittitur quia foresta ".* And if the 
" dat" or the " Receptorum " ever have a literal mean- 
ing it is difficult to see how the Exchequer could need 
or profit by information concerning the entries on 
these rolls ; unless we are to make the difficult as- 
sumption that the Chancery staff were at this date 
subjected to audit. We may perhaps make tentatively 
the suggestion that entries upon the Fine Rolls fall 
into two rough classes of cash payments and promises, 
only the latter engaging the attention of the Exchequer. 
This opens up possibilities too wide for discussion here, 
though we may perhaps say a word on the subject later 
in connection with the "Camera". Like the other 
printed volumes of John Records the Fine Rolls offer 
scope for a careful reading and analysis. In conclu- 
sion, we have to add to the known Fine Rolls what is, 
though rough and written on an unusually narrow 
membrane, undoubtedly the fragment of a Fine Roll of 
the twelfth year of John (1210); it came originally from 
the Treasury of the Receipt, but it is not unknown for 
Chancery Records to be found in that Repository ; it 
is now among the Miscellanea of the Exchequer, K.R. 
(i, No. 5). 

Liberate Rolls Turning now to the second of the classes of Chan- 
RoUs! 10Se cerv Rolls to which we alluded above the Liberate 
we have to deal with three Norman Rolls proper, one 
Norman Roll which forms the April section of the 
English Liberate Roll for the second year of John, 
and English Liberate Rolls of the second, third, and 
fifth years. 2 Further, it is generally admitted that this 
series is continued by the Close Rolls, 3 which begin as 

'P. 293. 

2 The dates of these may be compared with those of the Norman 
Liberate enrolments already mentioned for the years 1200 and 1203. 

3 Later the writs of Liberate were separated off from the Close Rolls 
and the Chancery Liberate Rolls resumed as a separate series. 



OF THE REIGN OF KING JOHN 291 

has been already noticed with the sixth year. It is 
possible that the loss of Normandy and the elimina- 
tion of the necessity for a double series of Liberate 
Rolls, and double reference to two Exchequers, had 
something to do with the innovation. 

If we include the Close Rolls in the division we are 
now considering, the principal question facing us is 
what parts of the contents of the rolls would interest 
the Exchequer. Now the contents of the Liberate 
Rolls proper are writs of which the originals, by their 
nature, are bound either to be found in the Exchequer 
at the time of audit, or to be produced there by ac- 
countants ; the only use for the Chancery Records of 
these, so far as the Exchequer is concerned, is that 
mentioned in the " Dialogus " the checking of the 
originals by means of the " Contrabreuia " or " Re- 
scripta " ; which themselves (not in the shape of 
secondary copies) are brought over by the Chancellor 
or his clerk. It is by no means impossible that (in 
contradistinction to the Fine Rolls) the actual Liber- 
ate Rolls still preserved to us among John's Chancery 
Rolls themselves visited the Exchequer ; certain an- 
notations upon them may even have been made in the 
Exchequer. If the Chancery Liberate Rolls were 
periodically sent over in this way it would account 
for the fact that no Exchequer enrolments of these 
writs have come down to us for the John period it 
was not till the Receipt officials came to make rolls 
for their own convenience that such an enrolment 
came to be thought desirable. 

To the Liberate Rolls, then, representing the "Re- The Origin 
scriptum" of the "Dialogus," we see added in o 
period (e.g. in Norman Roll, 5) entries of "terre 
liberate " ; that is, copies of letters which indirectly 
interested the Norman Exchequer. Similarly in the 



292 FINANCIAL RECORDS 

English Liberate Roll, 3, 1 we have the title " Rotulus 
Terrarum et Denariorum Liberatarum in Anglia ". . . . 
Once again, then, I think we have here, as in the case 
of the Receipt Rolls mentioned above, the Exchequer, 
interest originating the keeping of rolls in another 
department. This other department speedily finds out 
the convenience of preserving such records for its own 
purposes, and we have added to them copies of docu- 
ments (in the present case other letters close or patent) 
which are not, in some cases, even indirectly of Audit 
interest. From this the transition would probably 
soon be made in the case of the Chancery to an 
ordered treatment of the subject from a Chancery 
point of view ; and we then get, added, the idea of 
Originalia or Estreats made specially for the benefit 
of the Exchequer, and incorporating transcripts from 
the Fine Rolls, with less numerous items from the 
Close Rolls and the Patent and Charter Rolls. It is 
not improbable that the duplicates surviving to us in 
the classes both of Fine and Close Rolls of the John 
period are relics of the transition stage; but here 
again is a subject too detailed to be dealt with in the 
present paper. 

We have in fact in the time of John at first two 
distinct collections being made by the Chancery: (i) 
Enrolments of Charters and Letters Patent 2 of which 
letters copies were preserved for the purposes of the 
Chancery; (2) Liberate, preserved primarily for Ex- 
chequer purposes. 

As this second class merged into the Close Rolls the 
Chancery interest in the preservation of record of 
letters close became equal, at least, to that of the 
Exchequer. The stage before this is possibly respon- 
sible partly for the lack of exactitude which we some- 

1 Liberate Rolls i and 2 have no titles ; only later endorsements. 

2 The Patent and Charter Rolls date from the beginning of the reign. 



OF THE REIGN OF KING JOHN 293 

times notice in the early rolls in the assignment of a 
letter of one or the other kind to its proper class of 
enrolment. 1 

We have left till the last the most thorny of all the The "Cam- 
questions connected with early financial records. Con- ffsclc 1 ' 
temporary reference gives us, as administrative in-canum". 
struments, the " Scaccarium," the "Thesaurus," the 
"Recepta," the " Camera," and the " Garderoba " 
What are all these and what their relations one to 
another? Various writers have touched upon this 
one and that, and have even alluded to points in their 
relationship. Thus Prof. McKechnie suggests that 
though the Audit was fixed at Westminster the 
Exchequer (in which he includes, presumably, the 
Upper Exchequer and the " Recepta") "with much of 
its impedimenta of writs and tallies would accompany 
the King " : 2 Delisle, 3 speaking of Norman affairs, says 
" la Chambre Suivait le prince : le tresor . . . restait 
en depot a un Chateau" (" Falaise or Caen"): Prof. 
Powicke * (dealing with the Norman Exchequer) speaks 
of " the English Exchequer Chamber so far as that did 
not follow the King ". 

In dealing ourselves, so far, with existing Exchequer 
Records we have been able to trace in John's reign a 
number of the series of Exchequer records which are 
familiar to us at a later period and to trace, too, some- 
thing of their relationship to each other and to the 
most important of all, the Pipe Roll ; we have even 
ventured to suggest what were some of the matters of 
difficulty, the points of pressure and congestion in the 
old simple system of receipt, expenditure, and audit (and 

1 Cf. Hardy, Introduction to " Rot. Norm.," p. xi. 

2 " Magna Carta," 2nd edition, p. 268. 3 P. 279. 

4 P. 85. I am not quite sure how far in another place (p. 349) Prof. 
Powicke distinguishes " Camera " and Exchequer. 



294 FINANCIAL RECORDS 

in the records of these processes) and consequently 
what signs of development and growth we may look 
for in our period both in the System and in the 
Records. We have refrained, however, so far from 
any attempt to fit King John's known financial trans- 
actions (as they are reflected in innumerable instances 
in, for example, his Chancery Rolls) into this or that 
part of the machinery we were able to outline. We 
have been content, that is, to allude to the fact that 
the Pipe Roll and other machinery does deal with 
some financial matters while others pass it by, without 
attempting either to classify the first of these, or to 
collect concrete instances of the second. 

Unfortunately we have financial Records still to deal 
with which touch the second of these classes the 
"Mise"and " Prestita " Rolls which are undoubtedly 
concerned with some transactions that are outside the 
normal " course " of the Exchequer and the Normal 
Pipe, Memoranda, Receipt, and Issue Records. We 
are driven, therefore, in conclusion to touch upon the 
Record evidence for the Administration of financial 
matters which did not come within the influence of the 
Upper Exchequer. We have already suggested l that 
because a matter was not subjected to Audit there is 
no reason that the receipt and issue side of it should 
not be controlled by the Lower Exchequer, 2 whose 
business these processes were. Unfortunately the 
paucity of records of this department for John's reign 
does not permit us to prove or disprove the suggestion 
that the Receipt was still giving itself little trouble 
over matters of which the Pipe Roll scribes did not 
take cognisance. 

In opening this matter it is necessary to distinguish 

1 Above, pp. 264-265. 

2 In later times receipts from the Jews were so controlled though the 
Pipe Roll seldom touched them. 



OF THE REIGN OF KING JOHN 295 

not so much between the "Camera "and the " Scac- The " Cam- 
carium," as between the " Camera" and the "Curia ". f, r ^' r f a n ,1 the 
It is to be remembered that the " Curia " is originally 
the personal entourage of the King; the " Camera" 
only appears when the " Curia " has been professional- 
ized and departmentalized, supplying that personal 
element which the " Curia" had lost. Thus in ad- 
ministration when the King's secretary has become the 
department or Court of Chancery, there arises a new 
personal secretary, a member, as the Chancellor had 
originally been, of the King's household staff; similarly 
the Treasurer, departmentalized, is replaced from the 
personal point of view by the keeper of the King's 
private accounts, in the contemporary phrase " keeper 
of his wardrobe." We have to note first, then, that the 
" Camera " is not a purely financial affair ; it is the 
successor of the " Curia " in the position of the King's 
personal entourage. All kinds of duties, certainly 
secretarial as well as financial ones, may be undertaken 
by it. The unfortunate anomaly of John's reign is that 
the Chancellor has not been departmentalized, whereas 
the Treasurer has ; so that we have this member of the 
" Curia " still following the King and, in effect, a member 
of the " Camera ". Later he will be replaced there by 
the Keeper of the Privy Seal ; but at present that in- 
strument is no more than a signet ring which the King 
uses, normally, in much the same way as any private 
person. 1 

We may now attempt some distinction between the Terminology, 
financial terms mentioned at the beginning of this 
section. In the first place the " Scaccarium," apart 
from its literal sense, should undoubtedly be a season, 
an occasion the occasion or season of Audit. Un- 
fortunately there seems little doubt that in early 

1 " . . . per paruum sigillum quia magnum non erat presens . . ." 
(*' Cal. Rot. Pat." p. 66) : the use is evidently not normal. 



296 FINANCIAL RECORDS 

times, while this is the generally accepted sense, the 
word is sometimes used loosely. Madox 1 has col- 
lected together several instances of what appear to be 
local " Scaccaria," according to him "some subordinate 
Receipts or Places of Revenue " ; with which he classes 
the " Scaccarium Redemptionis Regis Ricardi " and the 
"Scaccarium Aaronis" (which dealt with the debts of 
Aaron of Lincoln), and also a "Scaccarium Hugonis 
de Nevill," to which a certain debtor was ordered to 
pay ;7oo, on the understanding that Hugh de Nevill 
would account for the sum afterwards at the "Scac- 
carium Westmonasterii ". Most of the instances 
given might be explained as being special "occa- 
sions " ; but this last of Hugh de Nevill is difficult. 
We may add to it a reference to John's "Scaccarium 
de Merleberg' " 2 at Easter, 1 207. The payments which 
are ordered to be made there appear to some extent in 
the normal Pipe Roll of the following Michaelmas, so 
that we might suppose that on this occasion the Easter 
Exchequer sat, exceptionally, away from Westminster. 
We have to add to this, however, that a little later (in 
July, 1215) Hugh de Nevill' was keeper 3 of the King's 
" Thesaurus " at Marlborough ; that the small so-called 
Receipt Roll mentioned above is a short list of sums 
received "de ballivis Hugonis de Nevill' unde re- 
sponsum est ad Scaccarium " ; and that in the Pipe 
Roll of the tenth year we have a " Compotus Hugonis 
de Nevill' de Recepta sua ". 4 

It is possible that we may draw from these passages 
the inference that yet another expedient was tried 
during our period for the relief of the overworked Ex- 
chequer ; an extension of the principle of " Compotus " 
and "particulars," in the shape of supplementary pro- 

1 "Exchequer," chap. iv. vii. 2 " Cal. Rot. Pat." p. 170. 

3 Ibid. p. 147. I am indebted to my wife for this reference. 

4 Quoted by Madox, loc. cit. 



OF THE REIGN OF KING JOHN 297 

vincial exchequers whose activities were summarized 
at the Audit at the " Scaccarium Westmonasterii ". Be 
that as it may, it is clear that we must be prepared 
for the use of the word "Scaccarium" in exceptional 
cases in a sense closely similar to that of " Thesaurus ". 

About the function of the " Thesaurus" there is no 
ambiguity. Its business is the custody of treasure 
(including Records). It frequently follows the King, 
but sometimes he deposits 1 its contents in some place 
which is considered safe, such as the Abbey of Read- 
ing; on the other hand, it sometimes remains ap- 
parently in places difficult of access. 2 It is possible 
that the term was applied to more than one depOt of 
treasure ; for we have reference to the King's receipt 
at Shrewsbury of a large sum from "our Treasury 
of Marlborough " ; 3 but this may have been only a 
temporary localization. Did the officials of the " Re- 
cepta," who nominally controlled the "Thesaurus," 
follow the King ? if not there must always have been 
a "Thesaurus" though it might be empty at West- 
minster. In any case there is no reason to suppose 
that the "Thesaurus" (or "Thesauri") though it, or 
they, certainly should receive moneys paid in and 
audited in the old, normal way, did not also include 
any moneys the King might have accumulated by 
other methods. The " Camera " as well as the " Scac- 
carium " may have been, so to speak, a depositor. 

There is no doubt that the King did receive, ir- 

1 "Cal. Rot. Pat." p. 145. 

2 Thus we find in one instance instructions given to Peter de Cancell' 
to go with four others and break the locks in order to obtain a sum of 
money for the King (ibid. p. 136) : again Peter de Maulay is to take 
out of it 10,000 marks, keep 1000 for expenses, and send the balance to 
the King (ibid. p. 161). It does not appear that de Maulay was nor- 
mally connected with the Administration of the Treasury. 

* Ibid. p. 88. This is possibly identical with the "Scaccarium" 
which gave us trouble above. 



298 FINANCIAL RECORDS 

regularly, large sums which were paid over to him 
wherever he might happen to be. This is to say that 
he received them "in camera," in his household. 
Sometimes they were sums which formed part of a 
regular Pipe Roll account, and the barons of the Ex- 
chequer have to be notified of the receipt; sometimes 
they are " dona " or fines, many of which certainly did 
not figure in any known audit; 1 sometimes they are 
sums derived from the " Thesaurus ". We have nu- 
merous instances of such receipts "in camera" 2 or 
" in garderoba ". 3 Do these two phrases convey the 
same thing? probably the explanation is that anything 
paid " in garderoba " was necessarily paid " in camera," 
of which "garderoba " was only a part. 

This brings us to the question of the tl Prestita >r 
and "Mise" Rolls. Of the contents of these Records 
we have not space to say much ; and indeed their re- 
lation and distinction may perhaps be sufficiently illus- 
trated by a single quotation from a " Prestita " Roll : 4 

" Eadem die ibidem Rogero Wacelin de prestito ad 
nauem suam omnino parandum . . . vi marcas . . . 
preter donum quod Rex ei dedit de aliis vi marcis que 
sunt in rotulo Mise." 

The interesting point to us is the question of their 
place in the general scheme of Administration, and 
(since their relation to the Pipe Rolls, if there is any, 
cannot be settled with certainty while those Records 
remain unprinted) this is largely a question of the 
persons who produced them. 

To that question there can, I think, be only one 
answer. Even if relations can be established later 

1 See above, p. 289, on the subject of the Oblata and Fine Rolls. 

2 "Rot. Pat." pp. 61, 70, 166. We have also record of moneys 
paid "de Camera" (ibid. p. 185). 

3 Ibid. pp. 1 68, 169, 170, 174, 187, 194. 

4 "Rot.de Liberate . . ." ("Prestita" section), p. 175. 



OF THE REIGN OF KING JOHN 299 

upon some points with the " Scaccarium," it must 
remain clear that these rolls were put together in 
and for the benefit of the King's " Camera". The 
"Prestita" are really only a development of the ex- 
penditure side of the "Garderoba," the more normal 
manifestation of which are the "Mise". 1 Both are 
part of the King's personal expenditure ; and since the 
King's personal writing officer was still, as we have 
seen, the Chancellor with his staff, we can hardly 
avoid the conclusion that Hardy was right in classing 
the "Mise" and "Prestita " as Chancery Records, and 
that they are incorrectly placed in the Exchequer be- 
cause the later "Wardrobe Accounts," which they 
anticipate, went there as a result of the later arrange- 
ment by which the Wardrobe was made subject to 
audit. In the Chancery they form part of a class, we 
might conjecture, which on the side of receipts in- 
cludes the very curious Fine and Oblata Rolls. 

In this connection we may conclude with three 
further citations from the Patent Rolls, which speak 
for themselves (i) " Sciatis quod quietum clamavimus 
dilectum et fidelem nostrum Philippum de Lucy de 
omni prestito quod ei fecimus et de omnibus receptis 
quas recepit dum esset in camera nostra. . . ." 2 
(2) "Littere iste " (i.e. originals of enrolments on the 
Patent Roll) " liberate erant in Camera domini Regis 
Radulfo Parmentario apud Craneburn. . . ." 3 (3) 
"Sciatis quod . . . recepimus . . . per manum R. prioris 
de Rading. . . . Omnes rotulos nostros de Camera 

1 It is to be observed that both, in the matter of their dates, follow 
the King, so far as we can judge. Part of the unpublished "Prestita" 
Roll is abnormal in form, containing only lists of prests to soldiers, and 
has no dates : but the last membrane (the roll for 16 and 17 John) has 
the dates ; and they conform, as do those in the printed rolls, to the 
King's Itinerary. 

2 Ibid. p. 74. 

* Ibid. p. 73 : cf. a precisely similar entry, ibid. p. 91. 



300 FINANCIAL RECORDS 

nostra et sigillum nostrum et rotulos nostros de Scac- 
cario. . . . M1 No doubt the phrase " rotulos de Camera " 
refers to the " Mise " and " Prestita," but where are the 
Chancery Rolls, the records of letters which had issued 
under the " sigillum " ? It is tempting to include them 
also under the same designation ; for to the " Camera " 
at this date they did, in a sense, undoubtedly belong, 
in as much as we must hold it to have included that 
" Cancellaria " which still " followed the King ". 

Conclusion. A study of the way in which John's cash resources 
were handled, passing from England to Normandy, 
from the Exchequer official to the soldier, from the 
" Camera " to the " Recepta," would reveal, I think, 
the fact that so far as he had them he disposed of 
them at his will freely ; he may have lack ed both 
money and men, but whatever his servants were they 
were not his masters. Similarly behind all the adminis- 
trative confusion of the reign, the loose ends of old 
processes dying out, new ones beginning and tentative 
ones lapsing, we seem to see working a single very 
powerful administrative brain. Was that brain King 
John's ? 

lu Rot. de Liberate . . ."("Prestita" section), p. 145, already cited 
above. 



INDEX. 



ACCORDS (Parliamentary), 160, 175. 
Act of Settlement (1701), its influence 

on early American legislation, 186. 
Adams, G. B. on the Great Charter, 

52, 54 79, 83, 96, 97. 
" Adelantados, leyes de los," see 

Leyes. 

Albini, see Aubigny. 
Alfonso VIII, see Castile, King of. 

X, see Castile, King of. 
Alfred, laws of, 153. 
Amercements, 108. 

America, colonial period in, 184-209. 

early colonies of, charters to, 187- 

90, 190 n., 213. 
distrust of lawyers in, 

207. 
exercise of royal veto 

in, 195-9, 202. 
grant of legislative 

powers to, 190-1. 
in relation to statutory 

law, 184-201, 202. 
legal system of the 

Puritans in, 191, 201. 
political controversies 

in, 203, 203 n., 204-5, 

205 n., 209. 
publication of English 

statutory laws in, 205- 

6. 
rights and liberties of, 

185-90, 192-7, 201, 

203, 209, 210. 
rise of the legal profes- 
sion in, 207-9. 

revolutionary period in, 209-11. 

since the Revolution, see United 

States of America. 

American Constitution compared with 
English Constitution, 222-5. 

Law compared with English Law, 

212-26. 

Revolution compared with English 

Revolution (1688), 211. 
Andros, Edmund, 203-4. 
Anson, Sir Wm., on statutory law, 
167. 



Appeals, judicial, 91, 97, 100, 105-7, 
no, 114. 

to Rome, 31-3, 34. 
Aragon, 234, 237. 

committee of barons in, 239, 240. 

Cortes of, 235, 240. 

king of, James II, 241. 

- Pedro III, 239. 

- IV, 241. 

" Articles of the Barons," 4, 5, 6, 98 n. 
"Articuli super Cartas," see Charter, 

John's Great. 
Assize of Arms, 119. 
Asturias, 234. 
Aubigny, d', barony of, 73. 
Audit, see Exchequer. 
Aumale, Count of, 100. 
Awards (Parliamentary), 160, 175, 

176. 

BAIARD, Godfrey, 65. 

Bail, 83, 112, 114, 114 n., 117, 218. 

Barons and judgment by peers, 86, 

go, 93, 94, 97, 98, 100, 105, 106, 

107, 117, 120, 121. 

application of the phrase " Liber 

homo " to, 98, 107, 108. 

lesser, entitled to summons to 

council, 77. 

returns of their knights, 46. 
- status of, 47, 48, 49. 

Baronage, conclusions in regard to, 
74-7- 

greater and lesser, errors of histori- 

ans in regard to, 47-58. 
" Barones Majores," 46, 47, 48, 49, 50 

sq. 

" Minores," 46, 47, 48, 49, 50 sq. 
Barony, regarded as a knight's fee, 

69-71, 75, 76. 

subdivision of the, 73, 74. 

tenure by, documentary evidence 

of, 69, 71, 72, 73, 75-6. 

in Shropshire (1212), 71-2. 
with service of five knights, 

62, 62 ., 65, 72. 

with service of one knight, 

6 9, 7i 75, 76. 



(301) 



302 



INDEX 



Barony, tenure by, with service of 

three knights, 62 n., 63, 65, 73. 
Basset, Gilbert, 105, 106, 107. 
Bassingbourn, John of, 100. 
Bayeux, Odo, Bishop of, 92. 
Beauchamp, barony of, 74. 
Beaumanoir, Philippe de, his " Cou- 

tumes de Beauvaisis," 88, 88 n. 
Belesme, Robert de, 72. 
Berengaria, queen-consort of Richard 

I, king of England, 29. 
Bertram, Roger, of Mitford, 62, 

62 n. 

William, of Mitford, 62. 
Bertrams, of Bothal, 62 n. 
Bethune, Robert of, 10. 
Bill of Rights, its influence on early 
American legislation, 182, 
184, 186, 189, 195, 197, 
200, 201, 209, 210, 211, 
213. 

of American colonies, xiii, 

213, 214, 216. 
Bills (Parliamentary), origin of private, 

163, 164. 
Blackstone, Sir William, on the Great 

Charter, 79. 

Body of Liberties, see Massachu- 
setts. 

"Book of Fees," 69. 
Books of law, publication of, in the 
early American colonies, 205-6, 
205 ., 206 n , 207. 
Botreaux (Botrealus), William de, 71, 

72 n. 

Brackley, 4. 

Bracton, Henry de, his conception 
of Common Law, 125, 
126,127, I3 1 . I 32, 132 n., 
133, 138, 139, I5 1 . 153. 
154. J 72, 173- 

on judgment by peers, 88, 

88 n., 89, 92, 106, 113. 
Bramber Castle, 69. 
Braosa, see Briouze. 
Briouze, William de, 70, 87. 

his son, 69, 70. 

Brown, Thomas (1180), his official 

position discussed, 254-8. 
Burgh, Hubert de, 105, 106, 107. 
Bury St. Edmunds, barons' conference 

at, 4. 

Brutun, Robert, 57. 
Bulls, see Innocent III, Pope. 



" CAMERA," see Household. 

Canterbury, Archbishop of, see Ed- 
mund (Rich) ; Langton, Stephen ; 
Walter, Hubert. 



I Care, Henry, his " English Liberties," 

206. 

Caro, Robert, 64. 
Carolina, North, adoption of English 

Common Law by, 196. 
Great Deed of Grant in, 200. 

South, adoption of English Com- 

mon Law by, 196. 
" Cartae baronum," 64, 65, 75. 
Castile, 234, 237. 

Cortes of, 235. 

Hermandad of, 240. 

king of, Alfonso VIII, 235. 

- X, 236, 240. 
Ferdinand IV, 240. 

Henry IV, 240, 242. 
Castilian Council, constitution of the, 

235- 
Catalonia, 234. 

Cortes of, 235, 240. 

Chancery, early records of the, 244, 
245, 250, 253 sq. 

its influence on finance, 250, 253, 

285-93, 298-300. 

Norman, 262-3, 266, 285-93. 
Chancellor, functions of the, 249, 251, 

254, 295- 

Chanceus family, 60. 
Chandos, Robert de, 75 n. 
Channing, Edward, cited, 204. 
Charter, Coronation, of Henry I, 3, 
4, 17. 

Henry Ill's Great, 7-8, 230 n. 

John's Great, action of the Papacy 

in regard to, 26 sq. 
as a charter of liberty, 

171. 
as Common Law, 124, 125, 

137, *58. 

as a feudal document, 170. 

as a model for a British 

Imperial Constitution, 

xvi, xvii, xviii, 24-5. 

as a statute, 172 sq. 

as enactment, 137. 

attempts to annul, 6-7. 

compared with modern law, 

178-9. 

compared with Roman law, 

xi, xii, xiv, xv. 

confirmations of, xii, xiii, 7, 

8, 16, 18, 80, 82-3, 122, 
157, 170, 171, 174, 177. 

continuity of, 17, 18. 

definition of " vel " in 39th 

clause of, 99, 99 n. 

distinction between 

" knights " and " barons " 
in, 46-59, 62, 63 ., 71-3, 
75-7, 77 n. 



INDEX 



303 



'Charter, John's Great, distinction be- 
tween the phrases "per 
legem terre ' and "judi- 
cium parium "in, gg 103 
120. 

embodied in American case- 
law, 202 5. 

events leading to the con 

cession of, 1-8. 

evolution of Habeas Corpus 

Act from, g3, g3 . 

excommunication of trans- 

gressors of, 128. 

flexibility of, n 12, 16, 18, 

19, 20, 85. 

" iorma securitatis " of, 5. 

- form of, unchanged, xxii. 

historical value of, 13-15. 
illustrated by financial re- 
cords of the period, 244 sq. 

immediate value of, xx, xxi, 

8-10. 
importance of, 16-22. 

influence of, during the 

Stuart period, 10, n, 12, 
16, 18, 19, 20, 186. 

influence of, on the Ameri 

can Constitution, 225-6. 

influence of, on the Ameri- 

can revolutionary move- 
ment, 2IO-I. 

- influence of, on the Church, 
6, 18, 172. 

influence of, on early Ameri- 
can legislation, 184-209. 

influence of, on later Ameri- 
can legislation, 180-4, 
209-26. 

influence of, on Spanish 

mediaeval law, 227. 

infringements of, 176. 

inherent merits of, 16, 19-21. 
in its relations to peace and 

war, 22-3. 

in relation to free men, 80, 

81, 82, 85, 90, 97, 98. 

in relation to judgment of 

peers, 15, 80, 86, 86 n., 
87, 87 n., 88, 88 ., 89, 
90-5, 96-101, 120, 174. 

in relation to the royal pre- 
rogative, 94-5, 103-7, 113- 
6, 229-32. 

inrelation to Wales, 135, 136. 

its acceptance by the King, 

i, 2, 6. 

its association with English 

law, 78-80, 8 1, 83, 84, 85, 
87-9, 93-5. 97, 124, 125, 
128 sq. 



Charter, John's Great, its future po- 
litical influence, 24-5. 

its influence on world con- 
stitutions, xiii-xiv, xvi, 
xvii, xviii. 

its relations to Spanish con- 
stitutional law, 227 sq. 

modern criticisms of, xx, xxi, 

7$, 79- 
modern significance of, 12- 

J 4- 

moral value of, 16, 20, 21. 

" nullus liber homo," defini- 
tion of the clause, 80-3, 
85, 86, 86 n., 97, 98, 107. 
omissions in, 86. 

" per legem terre," defini- 
tion of the clause, 83, 84, 
85, 85 n., 97, 99, 100, 

101, 103, I2O. 

the same, in the light of 

contemporary documents, 
83, 8 4 , 86. 

printed texts of, circulated 

in America, 206-7. 
provisions of, 15. 

in respect of knight 

service, 46 sq. 

publication of, 177-8. 

reaction against its exag- 
gerated importance, 78-80. 

recognized in the American 

colonies, 184 sq. 

references to the greater 

and lesser barons in, 46 sq. 

reissue of the, 171. 

scene of its enactment, 

xxiii-xxvii, I. 

suggestions for the study of, 

I4-I5- 

term applied to American 

constitutional documents, 
199-201. 

of the Forest (1225), 8, 122, 123, 

124, 125, 128, 138, 149, 158, 171, 
177. 

of Liberties (1683), 195, igg, 202. 

of Massachusetts (i6gi), igo. 

- of Virginia (1606), 180, 187, 188. 
(1618), 199. 

Rolls, 292, 292 n. 

Charters to American Colonies, 187- 

go, igo ., 213. 

Chertsey Abbey, Runnymede the pro- 
perty of, xxv. 

weir in Thames, xxv n. 

Chester, 157. 
Child, Robert, 193. 

hivington, manor of, 73. 
Ciconiis, see Cicogne. 



304 



INDEX 



Clare, Gilbert of, Earl of Gloucester, 

go. 
Clarendon, Constitutions and Assize 

of. 115, 119, 138. 
Clerk of the Pells, 248 n. 
Close Rolls, 261, 264, 290-3. 
Coke, Sir Edward, his interpretation 

of Magna Carta, 10, n, 19, 20, 79, 

80, 116, 124, 125, 137, 145, 184, 187. 
Colecherche, VVm. de, 65. 
Commissions of the Peace, see Justices 

of the Peace.. 
Common Law, see Law. 

Pleas, see Court of Common Pleas. 
" Concordia de Medina" (1463), 240. 
" Confirmatio Cartarum " (1297), 8. 
Connecticut, development of Common 

Law in, 194-5. 

Constitutions and customs of the 
realm, 131-3. 

written and unwritten, 222-4. 
Constitutional law, in England and 

America, 178. 

Cooper's Hill, near Runnymede, xxiii. 
Coronation oath, 148, 149, 154, 155. 
Cortes, functions of the, 235, 240. 

see Aragon ; Castile ; Catalonia ; 

Egea; Leon. 

Cottingham, manor of, 104, 105. 
Court baron, 10. 

of Common Pleas, 97, 121. 

of the Hundred, in, 115, 116, 137. 

of the Shire, 92, 93, 102, 104, 106, 

iu7, 108, no, in, 112, 116, 137. 

see also " Curia Regis ". 
Courts, manorial, royal encroach- 
ments on, 10. 

procedure of the early American, 

202. 
" Curia Regis," 116. 

comparison between English 

and Spanish, 232 n., 234, 

235- 
development of the, 87, 88, 

88 n., 89, 102, 104, 120, 

120 n., 121, 153. 
in relation to the " Camera," 

295. 
in relation to the Exchequer, 

249, 295. 

not mentioned in the Great 

Charter, 86. 

Custom (" consuetude "), as unwritten 

law, 125, 126, 126 ., 127, 128, 131, 

132, 1.32 ., 135, 137, 143, 155, 172. 

Customs and constitutions of the 

realm, 131-3. 

DECLARATION of Independence, 209, 
210, 213. 



Declaration of Rights (American), see 

Bill of Rights. 

Despencer, Hugh le, 130, 176. 
Devonshire, feudal reliefs in, 65. 
"Dialogus de Scaccario," 53, 54, 55, 

62, 99, 245, 251, 252, 253, 258, 265. 
" Diffidatio," feudal ceremony of, 5. 
Dillon, John Forest, 220, 221. 
Disseisin, 104, 105, 115, 117, 136. 

through default of service, 100, 

132. 
" Domesday Book," on tenants-in- 

chief, 51, 52. 
Dyer, William, 203-4. 

" EDICTUM regium" (1195), 110-3. 
Edmund (Rich.), Saint, Archbishop of 

Canterbury, 105. 

Edward III, see England, King of. 
Egea, Cortes of, 239. 
Egham, " la Huche" in, xxvi n. 

Manor and Enclosure Act of, xxiiij. 

xxv-xxvii. 

Ellington, Hugh de, 63. 
Ely, Bishop of, see Longchamp. 
England, Constitution of, compared 

with American, 222-5. 

King of, Edward III, 19. 
Commissions of the 

Peace under, 119. 

statute law under, 

129, 129 n. 

Henry I, accession of, 7. 

Charter of, 3, 4. 

his writ for local 

courts, 138. 

laws of, 138. 

II, anti- feudal policy 

of, 2. 

arbitrary imprison- 
ment under, 114- 

feudal reliefs under, 

60, 61, 73. 

Ill, arbitrary imprison- 
ment under, 116, 
117. 

his confirmation of 

Magna Carta, 18. 

judgment of peers 

under, 105, 106,. 
107, 117. 
IV, 160. 

John, he accepts the Ar- 

ticles, 5. 
arbitrary imprisonment 

under, 116. 
as a Crusader, 7, 35, 35 

n., 36, 40. 
his appeal to Rome, 7. 



INDEX 



305 



England, King of, John, his corres- 
pondence with the 
Papacy, 27, 28, 28 ., 
29. 30, 30 n. 
his death, 7. 

his feudal relations with 

the Pope, 26-40. 

his repudiation of the 

Charter, 6-7. 

meets insurgents at the 

Temple, 4. 

tyranny of, 2, 3, 10. 
- Richard I, arbitrary im- 
prisonment under, in 2. 

law of the Marches in, 136-7. 
Escheats, 56, 57, 57 ., 58, 59, 59 ., 

65, 72, 75, 104, 128. 
Essarts, no, no . 
Essex, Henry of, 57. 
Estre, Geoffrey de 1', 65. 

- Robert de 1', 65. 
Exchequer Accounts, 247, 248. 
and the Jews, 276-7, 278, 284. 

departments of the, 248-50, 251, 

293 300. 

early Memoranda Rolls of the, 259, 

269, 273-81. 

in relation to the "Camera," 249, 

253, 289, 293-300. 

- in relation to the " Curia," 249, 

295- 

list of records in John's reign, 259- 

64. 

Lower (Receipt), 183, 248-50, 253, 

255, 283-4. 

of Audit, 247, 248, 254, 268. 

office of Remembrancers of the, 

254-9- 

officials of the, 247, 257, 258. 

of Normandy, 252-3, 262, 263, 265, 

266, 270, 281-3, 286, 288- 

93- 

contrasted with that of 

England, 265. 

early Memoranda of the, 

281-3. 
records of the, 262-4. 

- of Pleas, 248. 

- procedure of the, 264, 265, 267, 

268, 269 sq. 

records of the, 245-50 sq. 

- Red Book of the, 66-7, 57-76 sq. 

- Tallies, 249, 251, 251 n., 259, 

264. 

terminology, 295-8. 

- Treasury of the, 293, 297, 298. 

- Upper (Account), 264-83. 
Excommunication, for breaking 

charters, 123, 128, 154, 171, 171 ., 
172. 



FEDERAL Constitution, see United 

States of America. 
Felony, punishment of, 91, in-g, 

1 20. 

Ferdinand IV, see Castile, King of. 
Feudal exactions, 2, 3, 9. 

- Law, 36-9, 37 n. 

service, default of, 100. 
Finance, influence of, on King John's 

character, 244, 246. 

see also Exchequer. 

Fine (or Oblata) Rolls, 261, 264, 286, 

288, 289, 290, 299. 
Fitz Alan, William, 71, 136. 
Fitz Herbert, Peter, 71, 72 n. 
Fitz Hugh, Robert, 60. 
Fitzwalter, Robert, 4. 
Fitz Wigein, Ralf, 60. 
Fitz William Hamo, 57. 
" Fleta," his conception of Common 

Law, 139. 

Forest laws, 114, 114 ., 134. 
France, judgment by peers in, 102. 

King of, Philip II, 3, 27, 102. 

see Louis, Prince of, 7. 
Frankalmoign, 132. 
Franklins, 81. 

Frankpledge, view of, 81, 81 n. 
Freeman, definition of the, in Magna 

Carta, 80-3, 85, 90, 97, 98, 107, 
108, 109, 114, 115. 

economic and legal position of the, 

108, 109, 109 n., no, no ., 

117, 120. 

Freesocage, 80, 8r, 109. 
Fueros, influence of, on Magna Carta, 
227, 228, 232, 233, 234, 239. 

GALICIA, 234. 

- Hermandad of, 240. 

Gaol delivery, commissioners of, 112, 

114-6. 

Gaugy, Ralf de, 63, 63 . 
Gilbert, Sir Humphrey, 187. 

son of Gerbert, "de Archis," 57, ' 

58. 
Glanvill, Ranulf, 53, 54, 60, 62, 126, 

127, 143. 

Glapion, Warin de, 270, 286. 
Gloucester, Earl of, see Clare. 

- 105. 

Gneist, Rudolf, on tenants-in-chief, 

5, 51. 52. 
Gosforth, 64. 

Gower, land of (Wales), 69, 70. 
Grava, see Grove. 
Great Seal, see Seal, Great. 
Greinville. William de, 63. 
Grove, Malveisin de, 58. 
Guher, see Gower. 



20 



306 



INDEX 



HABEAS Corpus Act, its influence on 
early American legisla- 
tion, 182, 186, 195, 197, 
200. 

its origin in the Great 

Charter, 93, 93 n. 

Hallam, Henry, on tenants-in-chief, 
5o. 

Hampden, John, 19. 

Hawles, Sir John, his " Englishman's 
Rights," 206. 

Henry I, see England, King of. 

II, see England, King of. 

Ill, sec England, King of. 

IV, see England, King of. 

see Castile, King of. 

Hercy, Malveisin de, 58. 

Hereford, Duke of, see England, King 

of (Henry IV). 

Hermandad, Pact of the, 240. 
Hickman, Thomas Windsor, Earl of 

Plymouth, 189. 
Holinshed, Raphael, his" Chronicle," 

18. 

Household ("Camera"), 249, 253, 
289, 293, 295-300. 

records of the, 260-1. 
Howden, Roger of, his " Chronicle," 

no, in. 
" Hue and cry," the, 111-2. 

ILCHESTER, Richard of, Archdeacon 
of Poitou, 254, 255, 256, 257 ., 
270. 
Imprisonment, no, in, 112, 113, 114, 

115, 116, 119. 
Indictment, 105-7, IIO > 116,119, 120, 

see also Peers, judgment of. 
Innocent III, Pope, Bulls of, 26-40. 

their bearing on the 

Great Charter, 84, 86. 
his action towards annull- 
ing the Great Charter, 
xxvii, 28 sq. 

his confirmation of Beren- 

garia's dowry, 29, 30. 
- his letter of 18 June, 1215, 
to the English people, 

41-5- 
his relations with John, 26 

sg. 
Insurrection, right of, in Spain, 240, 

241. 
Issue Rolls, 249, 253, 260, 284. 

JAMES II, see Aragon, King of. 
Jenks, E., on the Great Charter, 79. 
Jews, English and Spanish laws con- 
cerning, 236. 



Jews, procedure of the Exchequer 

towards, 276-8, 284. 
John, see England, King of. 
Judgment, in mediaeval law, 92, 92 
., 93, 123, 130. 

of peers, see Peers. 

Jury, evolution of, from the Court of 
Peers, 91, 92, 93, 101, 102, 118. 

in relation to recognition, 91, 

102. 

- of presentment, in, 117, 118, 121. 

trial by, in the early American 

colonies, 194, 195. 
in relation to Magna Carta, 

78, go, 91, 92, 93, 97, 

97 n. 
" Jus publicum " contrasted with " Jus 

privatum," xii, xiv. 
Justices, 102, 117-21. 

rolls of the, 250, 251. 
"Justicia Mayor," 239, 240, 241. 

KENT, law of, 135. 

King's Council, see " Curia Regis ". 

Remembrancer, see Remem- 

brancer. 
Kingston-on-Thames, freemen of, 

xxix, xxix n. 
Knight service, 46. 
Knight's fee, in relation to barony, 

66-9, 7o-i, 72, 74. 75, 76. 

status of, 47-51, 53. 

documentary evidence of tenure 

by, 66-70, 72, 73, 75, 76. 
Knights' fees, 48, 54, 55, 59, 59 ., 

61, 64. 

- different classes of, 56, 75, 76. 

tenure by one or more, 62-6, 

68, 70-3. 
Koran, xii. 

LACY, Walter de, 71. 

Langton, Stephen, Archbishop of 

Canterbury, xiii, 3, 4, 6, 109. 
Languedoc, consent to tallage in, 

xxix-xxx, xxix n. 

Lavington (Steeple or Market), 66 8. 
Law, American, during the colonial 
period, 284-289. 

during the revolutionary period. 

209-11. 

influence of English legislation 

on, 181-4. 

influence of the Great Charter 
on, 180-226, 

since the Revolution, 212-26. 

statutory, growth of, 190-201, 
202, 203. 

its incorporation with Eng- 

lish, 191-203. 



INDEX 



307 



Law, Common, administration of the 
Great Charter as, 124, 125, 
128, 137, 173, 174, 175, 178. 

- affirmance of, 141, 142, 143, 

144, 145, 147, 148, 150, 151, 
151 ., 152, 164, 165, 168. 

as the " lex et consuetude 

regni," 13. 

- definition of, 124, 125, 131, 133, 
134, 134 ., 137. 

distinction between English and 

American, 183, 183 ., 212, 
213. 

distinguished from special law, 

134, 134 n., 135, 137. 

- " genius of the," 213. 

influence of, on colonial legis- 
lation, 181-4, 186, 190, 191 
sq. 
in relation to the Church, 156, 

158, 159; 

its extension to the American 
colonies, 184, 185, 185 ., 
186, 186 n., 187, 188, 189, 
190 sq. 

permanence of the, 145, 146. 

customary, 125, 126, 126 ., 127, 

127 n., 128, 131, 132, 132 ., 133, 

135, 136, 137, 143. 172. 

ecclesiastical, 134, 134 n. 
~ Forest, 134. 

- Mahommedan, xii. 

of the Court of Constable and 

Marshal, 134. 

of the Marches, 136-7. 

of Moses, xii. 

- of the Twelve Tables, xi, xii, xiv, 

xv. 

- repeal of the, 128, 130, 131, 140, 

141, 149, 156. 

- Roman, xi, xii, xiv, xv, 125-7, I2 6 

., !33-4 !43. 

Spanish, compared with Magna 

Carta, 227. 

influence of, on English legis- 
lation, 227. 

- in relation to the royal preroga- 

tive, 229-32, 238, 239, 240, 
242-3. 

judgment of peers in, 233. 

position of free men in, 233, 

233 

Statutory, 128, 129, 129 n., 130, 

131. T 32, 132 n., 133, 137, 
J 38, 139, 140 sq. 
definition of, 139-40, 145, 165. 

in relation to the Common 

Law, 137, 138, 140, 141, 142, 
143, 145, 146. 
" Leges Henrici Primi," 138. 



Leicester, Earl of, see Montfort, S. de. 
Leon, Cortes of, 230, 233-5. 

Hermandad of, 240. 

Ordinance of, 228 n., 230, 233. 
" Leyes de los Adelantados," 236. 
" Liber Judiciorum" in Spain, 231. 
Liberate Rolls, 249, 252, 253, 261, 
264, 286, 288, 290-3. 

- writ of, 261, 264, 285. 
Liberties, see Charters. 
London, barons supported by city of, 

5- 

New Temple, conference at, 4. 
Longchamp, William, Bishop of Ely, 

IJ 5- 

Longmead, site of, xxv-xxvi. 
Louis, Prince of France, 7. 

McKECHNiE, Wm. S. on the great 
Charter, 1-25, 54-8, 79, 97, 116. 

Madox, Thomas, on the holdings of 
tenants-in-chief, 47, 47 n., 55, 60, 

74- 
Magna Carta, see Charter. 

island, xxv. 

" Magnum Concilium," 155. 
Maisie, Roger de, 57. 
Maitland, F. W., see Pollock, Sir F. 
Manrique, Cayetano, on Magna Carta, 

228, 228 n., 230, 230 n., 231, 233. 
Mara, see Mare. 
Marches, law of the, 136-7. 

see Wales ; see Scotland. 
Mare, Peter de la, 66-9. 

Robert de la, 66-9. 
Mariehalar, Amalio, Marques de 

Montera, on Magna Carta, 228, 
228 n., 230, 230 n., 231, 233. 

Marsh, Richard, 31 n. 

Marshal, Richard, Earl of Pembroke, 
105, 106. 

William, Earl of Pembroke, 7, 10, 

100, 107. 
Maryland, Act of, 1638, 195, 197, 

influence of the Great Charter on 

the laws of, 195. 

Massachusetts, Body of Liberties of, 
(1641), 192-4, 199, 201, 202. 

Circular Letter of (1768), 209, 

210. 

controversy as to salary grants in, 

204-5. 

Habeas Corpus Act of, vetoed by 

the Crown, 197. 

Royal Charter to (1691), 190. 
Memoranda, see Exchequer ; see Re- 
membrancer. 

" Milites assignati," (1195), in, 112, 

118. 
Militia, 217. 



308 



INDEX 



" Mirror of Justices," in relation to 
statute law, 128, 133, 138, 139, 147, 
148, 172, 173. 

"Mise" Rolls, administrative func- 
tions of the, 294, 298-300. 

Mitford, 62. 

Montera, Marques de, see Mariehalar. 

Montfichet, barony of, 73. 

Montfort, Simon de, Earl of Leicester, 
116, 117, 118, 227-8, 234. 

Morewic, Ernulf de, 64, 72-3. 

Hugh de, 64. 

" Morte d'ancestor," 104. 

Mortimer, Roger, Baron of Wigmore, 

7 1 - 

Mucegros, Alice de, 74. 

Municipal jurisdiction, contrast be- 
tween English and Spanish, 232, 
233-5,237,239. 

NAVARRE, 234. 
Neifty, Exception of, 159. 
Newark, 7. 

New England, influence of English 
Common Law in, 191-4, 201. 

law of God in, 191, 192, 193. 

New Jersey, early legislation in, 200. 

New York : Charter of Liberties of 

(1683), 195, 197, 199, 202. 

Dyer affair at, 203-4. 

Nigel, son of the Chamberlain, 57. 
Norfolk, feudal reliefs in, 65. 
Normandy, see Exchequer. 
Norman records, see Chancery ; see 

Exchequer ; see Records. 
Northampton, assize of, 115, 119. 
Northumberland, tenants-in-chief in, 

61, 62, 63,64. 

ORDINANCE, definition of the term, 

145, 146, 166, 167. 
Ordinances, 145, 146, 155, 156, 157, 

158, 159, 160, 162, 163, 164, 165, 

166, 168. 

distinguished from statutes, 145, 

146, 166, 167. 

Spanish, 228 ., 230, 231, 233. 

see also Law ; Statutes. 
Outlawry, in relation to judgment of 

peers, 105, 106, io6., 107, no, 117. 

PAMIERS, Parliament of (1212), xxix. 

Pandulf, Cardinal, 31 n. 

Pantulf, Hugh, 72. 

Papacy, feudal dependency of England 

upon the, 27-31. 
Papal Bulls, see Innocent III. 
Paris, Treaty of, 180. 
Parliament, evolution of, 87, 88, 89. 



Parliament, legislative functions of, 
128-32, 139-42, 144, 146, 149-53 sq. 

Parliamentary, enactments, varieties 
of, 160, 161, 162, 163, 164. 

see also Bills ; Law ; Statu- 
tory ; Ordinances ; Provi- 
sions ; Statutes. 

Petitions, 128, 130, 149, 150, 155, 

156-63, 163 n., 164, 172-3, 176, 
177. 

representation, theory of, 143, 144, 

145, 152, 153, 154, 169, 170. 
Patent Rolls, 292, 292 n. 
Pedro III, see Aragon, King of. 

IV, see Aragon, King of. 
Peers, Court of, 87, 88, 89. 

disseisin without judgment of, 104, 

105, 115. 

judgment of, 86, 86 ., 87, 87 ., 

88, 88 ., 89, 90, 91, 92, 

93, 94, 95, 96, 97, 98, 99, 

100-7, 174- 

in France, 102. 

in relation to trial by jury, 

9i, 92, 93, 101, 102. 
royal decrees annulled by, 

105, 106, 107. 

Pembroke, Earl of, see Marshall. 
Penn, William, 189, 200 n. 
Pennsylvania, Charter of Privileges 
of, 199, 200, 200 . 

Constitution of, 189. 

Peter des Roches, Bishop of Win- 
chester, 87, 106. 

Petition of Right (1628), xiii. 

its influence on early Ameri- 
can legislation, 182, 186, 
195, 197, 200, 204. 

Petitions, see Parliamentary Petitions. 

Petyt, George, his "Lex Parlia- 
mentaria," 206. 

Philip II, see France, King of. 

Pike, L. O., on the Great Charter, 79. 

Pipe Rolls, 55, 56, 57, 58, 59, 59 ., 
60, 245, 251, 254, 255, 258, 
259, 264, 265, 266, 267. 

Norman, 270-3. 

returns of knights' fees in the, 

59 sq. 

Playz, Richard de, 73. 

Plymouth, Earl of, see Hickman, 

Poitou, Archdeacon of, see Ilchester, 
Richard of. 

Pollock, Sir F., and F. W. Maitland, 
on tenants-in-chief, 51, 54. 

Popes, see Innocent III. 

Portsmouth, 283. 

' Praecipe," writ of, 108, 108 . 

Presentment, in, 117, 118, 120, 121. 
Prestita " Rolls, 294, 298-300. 



INDEX 



309 



Preston, Michael de, 57. 

" Privilegio de la Union" (1287), 

239-4 1 - 

" Privilegio General" (1283), 239. 

Privy Seal, 249. 

Proclamations of Statutes, 157, 170. 

" Pronunciatio " (in Parliament), 131, 
151, 157-8. 

Provisions, as enactments of Parlia- 
ment, 160, 162, 163. 

Pym, John, on Magna Carta, 120. 



RALEGH, Wm., 104, 105. 
Raleigh, Sir Walter, 187. 
" Honour " of, 57. 
Receipt, see Exchequer. 

- Rolls, 260, 264, 283, 284, 285. 
Recognitors, see Jury. 

Records, Chancery, 244, 245, 250, 
253, 261, 262, 264, 285-93. 

Exchequer, 245-50, 259, 264 sq. 

- Judicial, 250-1, 253. 

legal, 202. 

- Norman, 262, 263, 264, 270-3, 281- 

3, 285, 286, 287, 288-93. 
" Red Book of the Exchequer," see 

Exchequer. 

Reigate, castle of, xxv. 
Reinsch, Paul S., on English Com- 
mon Law in American colonies, 
185, 185 n., 186. 

Reliefs, 52-8, 60, 61, 62, 63, 64 8, 70, 
7 1 , 72, 73. 74 sg. 

paid by barons of Henry II, 61. 

paid by Peter and Robert de la 

Mare, 67-9. 

Remembrancer, the King's, 247, 248, 
250, 254, 255, 256, 256 n., 272. 

- Lord Treasurer's, 247, 248, 254, 

255, 256, 256 n. 

Norman, records of the, 281-3. 

- records of the, 248, 254, 258, 259, 

264, 273-81. 
Repeal, see Law. 
Replevin, procedure of, 94. 

see also Bail. 
Representation, see Parliamentary 

Representation. 

Rhode Island Code (1647), 194-5, 202. 
Richard I, see England, King of. 
Richmond, " Honour " of, 57. 
Roches, see Peter des Roches. 
Rokely, William de la, 68. 
Roman Law, see Law, Roman. 

143. 
Round, J. H., on the Great Charter, 

46-77, 79- 

Ruffhead, Owen, on statutory law, 
167, 168. 



Ruffus, Wm., 58. 

Runnymede, site and enclosure of, 
xxiii-xxvi, I. 



SANCHO, Don, Infante of Spain, 240. 
Scotland (and the Marches), laws of, 

136, 137- 

Scutage, 2, 3, 9, 58, 65, 75 . 
Seal, Great, i, 6, 122, 123, 154, 162, 

165, 249, 250. 
Selden, John, on tenants-in-chief, 

120. 

Serjeanty, tenure by, 49, 49 ., 60. 
Shareshull, William de, 162. 
Sheriff, in, 112, 113, 121, 122, 166. 

feudal returns of the, for Shrop- 

shire, 71-2. 

receipt of feudal reliefs by the, 51, 

52. v 

Sheriff's tourn, 112. 
Shropshire, feudal returns of the 

Sheriff of, 71-2. 
Signet, the, 249. 
Socage, 49, 49 n. 
Socmen, 8r. 

Somers, Sir John, 197, 206. 
Spain, baronial jurisdiction in, 232, 

239- 

Infante of, Don Sancho, 240. 

right of insurrection in, 240, 241. 

municipal jurisdiction in, 232, 233, 

234, 235, 237, 239. 

royal jurisdiction in, 229-32, 238, 

239, 240. 

Spanish Law, see Law. 
Staines, bridge, xxiii-xxv. 
Staple, Statute of the, 134, 134 M., 

155. 

Statute, concerning the Templars' 
lands (1324), 161. 

" De Asportatis Religiosorum," 

139, 139 n. 

" De tallagio non concedendo," 

174, 175. 

Law, see Law, statutory. 

of Carlisle, 162. 

of Gloucester, 147, 147 n. 

of Kenilworth, 138. 

of Marlborough (Marleberge), 128, 

139, 171- 

- of Merton, 132, 138, 154, 174. 

of Provisors, 160, 162, 170. 

of Purveyors, 161. 

- of the Staple, 134, 134 ., 155, 

160, 163. 

of Westminster, 147, 147 n. 

of Winchester (1285), 118, 119, 

138- 

uncertainty of the term, 140, 160. 



3io 



INDEX 



Statute, see also Act of Settlement ; ! 
Bill of Rights; Body of Liberties; 
Charter of . Liberties ; Habeas 
Corpus Act ; Ordinances ; Peti- 
tion of Right ; Provisions. 

Statutes, American, 190-203. 
distinguished from ordinances, 
145, 146, 164, 165, 166, 167, 168. 

publication of, 168-70. 

sealing of, 168. 

titles of early, 138, 139. 
Stuteville, Eustace de, 104, 105, 

105 n., 107. 

Nicolas de, 104. 

- Wm. de, 104. 

Stubbs, Wm., on the Great Charter, 

49, 5, 5 79, 1*8. 
Summons, general, 49. 
" Super Teise," see Surtees. 
Surtees, Randulf, 64. 

- William, of Gosforth, 64. 

TALLAGE, in Languedoc, xxvi //. 
Tallies, see Exchequer. 
Tenants-in-chief, 9, 10, 46, 47, 48, 49, 

50., 31^:52, 53, 54 55, passim, 81. 
" Testa..de Nevill," 69, 71-3. 
Thames, meadows by the river, xxiii- 
xx vi. 

Roman road near the, xxiii-xxiv. 
weir in the, xxv n. 

Thayer, James B., cited, 212. 
" Thesaurus," see Treasury. 
Thomson, Richard, on the Great 

Charter, 79. 

Thorpe, Sir Robert, 170. 
Tickhill, "Honour " of, 58. 
Tilbury, Robert of, 57. 
Todenham, Robert de, 74. 
Tourn, see Sheriff's tourn. 
Treasury, functions of the (1215), 293, 
297-8. 

see also Exchequer. 
Treaty of Paris (1783), 180. 
Trial by combat, 100, 100 n., 107. 
Twelve Tables, law of the, see Law. 

UMFRAVILLE, Henry de, 57 n. 
United States of America, Constitu 
tional Government in, 
222. 

English Common Law 

the basis of the Con- 
stitution of the, 18455. 
- evolution of the Con- 
stitution of, 180-4. 
- Federal constitution of, 
(1789), xiii 
215- 



United States of America, Federal 
const i tu- 
tion of, A- 
mendments 
of the, 218- 
20. 

its influence 

on world 
constitu- 
tions, xiii. 

influence of the Great 

Charter on the Federal 
Constitution of, xiii, 
215-24. 

State Constitutions of, 

214-8. 

Supreme Court of, 220, 
224. 

written constitution of 

the, 222, 223. 
Upton, 60. 

VAVASSORS (vassals), 81, 115. 
Veteri Ponte, Robert de, 270, 272. 
Villeins, legal rights of, 81, 83, 83 n. 
Virginia Company, Charter of James 

I to, 180, 187, 188, 199. 
- Great Charter of (1618), 180, 187, 
188, 199. 

prohibition of legislation in, 196. 

WAKE, Hugh, 105. 

Wales, North, justice of, 136. 

laws and customs of, 136, 137. 
Wallingford, 5, 56, 104, 105. 
Walter, Hubert, Archbishop of Can- 
terbury, in, 112, 113, 116, 118, 121. 

Wardrobe, functions of the, 249-50, 

293, 298, 299. 
Wardship (royal), 9, 10, 56, 59, 59 n. 

of a vacant ecclesiastical fief, 

56, 59, 59 
Warenne, William de, Earl of 

Warenne, 30, 32. 
Wendover, Roger of, 28 ., 29, 30, 

31, 31 W., 36, 36 n. 
Were (wergild), 81, 81 n. 
Wigmore, baron of, see Mortimer. 
William, son of Siward, see Surtees. 
Winchester, Bishop of, see Peter des 

Roches. 

Winthrop, John, cited, 192, 199. 
Wife, 81. 

see also Were. 

Writ of Praecipe, 108, 108 w. 
Writ of right, 104. 

YARDMEAD, site of, xxv. 
Yeardley, Sir George, 199. 
York, custom of, 135. 



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