Magna carta commemoration essays

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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 'V2

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

i4 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,

0 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

1Rymer'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.

3Rymer, 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.

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

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

3o 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 August2 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 wrongr
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, Johnr
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.

1The 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 admitteret8
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 eorum9 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. 10End 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 turbationes4 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 districte5
dedimus in preceptis. quatinus nisi prefati Barones
infra octo dies6 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.

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

3Cf. 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

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

2Hallam, "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- 366 : "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- 564-5, 567 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- 2I4-

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 the
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 n827
-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- I5I : "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
ude 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
Morewic5 "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 thatt 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-
pledge2 ("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

JCf. 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 formula2) 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
treatise1 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.

2McKechnie, "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.

lSee 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 Parliaments1

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 case1 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.

4Cal. 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 view7, 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 capiatur1 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 99

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).

2McKechnie, " 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 ".

n4 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 law1 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

i24 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 I33O3 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.
2Selden 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

luRot. 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 Bracton4 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.

7Selden 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

aThus 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.
3Rymer, "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.
2Stubbs, "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.

i4o 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 j1 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 said 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 i35o5 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.

3For 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

luYear 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. 5P. 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.

9E.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).

6B&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.

3Stat. 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

luRot. 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."

i84 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

I9o 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-

aSee, 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

i94 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.
3Reinsch, 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-

lOn 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,"

1Channing, 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 Lawr
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

2i4 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 ;

JBryce, "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,,
232» 233- 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. California1 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. <J8 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

justice1 (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, 32° 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 Charterr
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

24o 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 ujusticia" 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
all1 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

luThe 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 Rolls1) 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, gUes».Dl
the form of which (a fact confirmed by existing rolls), Upper Ex-
is essentially the same as that we find later. It ispipeURoi*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(iuer-

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.

5Delisle, 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 who2
" 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
summons2), 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
is3 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 Rolls4 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 suppose1 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 PernaPs 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.

aThis 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

JExch. 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 Commission2 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 printed1 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.]

53I~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' unPubnsned 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 knowr, 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
know1 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 pages2 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 Some6 are indexed at the tail of the mem-

p. 123. 2ii. 501, 502. 3 Exch. Ace. 349/1 A.

4 Rolls 10 and 18 (especially 10) are slightly broader.
5Cf. 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 uin 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 elsewhere2 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.

28o 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 indenture1 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

xExch. 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 one1 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 ^°"sa^do
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 note2 — " 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. 4P. ii.

19

29o 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 Patent2 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^'rfan,1the
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. Madox1 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 keeper3 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 deposits1 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 ?

luRot. 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,

69, 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, I31. I32, 132 n.,
133, 138, 139, I51. 153.
154. J72, 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-

J4-

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, 84, 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, I26

»., !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. T32, 132 n., 133, 137,
J38, 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,

IJ5-

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,

71-

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),

239-41-

" 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,
71, 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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