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Full text of "Magna carta : a commentary on the Great Charter of King John with an historical introduction"


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MAGNA CARTA 



PUBLISHED BY 

JAMES MACLEHOSE AND SONS, GLASGOW, 
^nblishrts to tht Hntbtrsttg. 



MACMILLAN AND CO., LTD., LONDON. 



New York, 
Toronto, • 
London, • 
Cambridge, 
Eainburgh, 
Sydney, • 



The Macmillan Co. 

The Macmillan Co. of Canada. 

Simpkin, Hamilion and Co. 

Bowes and Bowes. 

Douglas and Foulis. 

Angus and Robertson. 



MCMXIV. 



"vo 






MAGNA CARTA 

A COMMENTARY ON THE GREAT 
CHARTER OF KING JOHN 



WITH AN 
HISTORICAL INTRODUCTION 



BY 

WILLIAM SHARP McKECHNIE 

M.A., LL.B., D.Phil. 

LECTURER ON CONSTITUTIONAL LAW AND HISTORY IN THE UNIVERSITY OF GLASGOW 

AUTHOR OF 

'the STATE AND THE INDIVIDUAL,' 'tHE REFORM OF THE HOUSE OF LORDS* 

'the NEW DEMOCRACY AND THE CONSTITUTION,' ETC. 



SECOND EDITION 

REVISED AND IN PART RE-WRITTEN 




GLASGOW 
JAMES MACLEHOSE AND SONS 

PUBLISHERS TO THE UNIVERSITY 
I9I4 



147 



PREFACE TO SECOND EDITION. 

The numerous and weighty criticisms upon the first edition 
of this Commentary (pubHshed in 1905 and now out of 
print) were doubly welcome to the author as showing a 
widespread interest in the subjects discussed, and as 
enabling him to profit from the collaboration of eminent 
specialists in the elucidation of Magna Carta and of the age 
that gave it birth. The last eight years have been fertile in 
discussions on the form and contents, the historical setting, 
and the constitutional value of the Great Charter. Mono- 
graphs and contributions to periodical literature, devoted 
exclusively to Magna Carta, have been published in France, 
Germany and the United States of America, as well as in 
Great Britain ; while few books have appeared on English 
medieval history or on the development of English law 
without throwing light incidentally on one or more of the 
Charter's various aspects. 

An endeavour has been made, by severe condensation, 
to find room in this new edition for whatever seemed 
relevant and of permanent value in this mass of new 
material, without sacrificing anything of importance con- 
tained in the first edition. Effect has been given, so far as 
space permitted, to the suggestions cordially offered by 
critics and fellow-workers, both privately and in published 
books and articles; while the author's own recent 
researches have supplied additional illustrations, and have 
led him to modify several of his earlier impressions. 
Although no reason has been found for altering funda- 
mental propositions, the whole work has been recast ; 
hardly a page, either of Commentary or of Historical Intro- 



vi PREFACE TO SECOND EDITION 

duction, remains as originally written ; and care has been 
taken to supply the reader with references to the most recent 
authorities on the various topics discussed or referred to. 

The new material will be found mainly (i) in the portions 
of the Introduction treating respectively of scutages, the 
Coronation Charter of Henry I., the juridical nature of 
Magna Carta, its contemporary and permanent effects on 
constitutional development, its reissues by Henry HI., and 
the nature of the so-called " unknown charter " of John ; 
and (2) in chapters 12, 13, 14, 18, 20, 25, 27, 34, 38, 39 and 
61 of the Commentary. In the Appendix, Professor 
Liebermann's amended text of Henry I.'s Charter of 
Liberties has been adopted, and the Great Charter of 1225 
substituted for that of 1217; while an attempt has been 
made, by means of italics and foot-notes, to show at a glance 
the chief points in which the three reissues by Henry III. 
differ from one another and from the Charter as originally 
granted by John. 

Latin Charters, of which the full text is given in the 
Appendix or elsewhere, have been printed literatim as in 
the authorities cited in each case; but for detached Latin 
words or phrases, whether occurring in the Historical Intro- 
duction or the Commentary, a uniform spelling has been 
adopted, in which the " ae " diphthong, where appro- 
priate, has been substituted for the less familiar " e." 

The author's grateful acknowledgments are due to the 
Trustees of the Carnegie Foundation, for a grant towards 
the expenses of this edition ; to Professor Vinogradoff, for 
help courteously given in solving problems affecting the 
interpretation of chapter 34; and to Mr. David B. Mungo, 
LL.B., formerly the author's assistant in the University of 
Glasgow, for his services in reading the proof-sheets and 
for many useful suggestions. 

The University, 
Glasgow, 

December y 1913. 



FROM PREFACE TO FIRST EDITION. 

No Commentary upon Magna Carta has hitherto been 
written from the standpoint of modern research. No 
serious attempt has yet been made to supersede, or even 
adequately to supplement, the works of Coke and Richard 
Thomson, pubHshed respectively in 1642 and 1829, and 
now hopelessly out of date. That this conspicuous gap in 
our historical and legal literature should have remained so 
long unfilled is the more remarkable in view of the great 
advance, amounting almost to a revolution, which has been 
effected since Coke and Thomson wrote. Within the last 
twenty years, in especial, a wealth of new material has been 
explored with notable results. Discoveries have been made, 
profoundly affecting our views of every branch of law, every 
organ of government, and every aspect of social and 
individual life in medieval England. Nothing, however, 
has hitherto been done towards applying to the systematic 
elucidation of Magna Carta the new stores of knowledge 
thus accumulated. 

With this object in view, I have endeavoured, throughout 
several years of hard, but congenial work, to collect, sift, 
and arrange the mass of evidence, drawn from many 
scattered sources, capable of throwing light upon John's 
Great Charter. The results have now been condensed into 
the Commentary which fills two -thirds of the present 
volume. This attempt to explain, point by point, the 
sixty-three chapters of Magna Carta, embracing, as these 
do, every topic — legal, political, economic and social — in 
which John and his barons felt a vital interest, has involved 
an analysis in some detail of the whole public and private 



viii PREFACE TO FIRST EDITION 

life of England during the thirteenth century. The Com- 
mentary is preceded by a Historical Introduction, which 
describes the events leading to the crisis of 1215, analyzes 
the grievances which stirred the barons to revolt, discusses 
the contents and characteristics of the Charter, traces its 
connection with the subsequent course of English history, 
and gives some account of previous editions and commen- 
taries. 



February^ 1905. 




PAGE 



CONTENTS. 

HISTORICAL INTRODUCTION. 
Part I. Events leading to Magna Carta : 

'^I. William I. to Henry II. : Main Problem, the Monarchy - 3 

II. William I. to Henry II. : Problem of Local Government 13 

III. William I. to Henry II. : Problem of Church and State - 16 

lV. Richard I. and John ig 

V. The Years of Crisis (1213-15) ..... 27 

VI. Runny mede, and after - 36 

Part II. Feudal Grievances and Magna Carta : 

^ / I. The Immediate Causes of the Crisis ^ - - - - 48 

II. The Crown and Feudal Obhgations - . . 
v/ I III. Royal Justice and Feudal Justice 

Part III. Magna Carta : Its Form and Contents : 

I. Its Prototypes : Earlier Charters 93 

^ II. Magna Carta : Its Form and Juridical Nature - 104 

^' III. Magna Carta : Its Contents and Characteristics - - 109 \ 



IV. Magna Carta : An Estimate of its Value *^ - 120 

^^ ^ V. Magna Carta : Its Defects - - ,^^_^ - - - 129 

^ » VI. Magna Carta : Value of Traditional Interpretations - 132 

VII. Magna Carta : Its Traditional Relation to Trial by Jury 134 



X CONTENTS 

Part IV. Historical Sequel to Magna Carta : 

PAGB 

I. Reissues and Confirmations of the Great Charter - - 139' 

(i) Reissue of 1216 139 

(ii) Reissue of 1217 145 

(iii) Reissue of 1225 152 

(iv) Confirmations (1237 to 1297) - - - '- - 157 

II. Magna Carta and the Reforms of Edward I. - - - 159 

Part V. Magna Carta ; Original Versions, Printed 
Editions, and Commentaries : 

I. Manuscripts of Magna Carta and Relative Documents - 165 

II. Previous Editions and Commentaries - - - - 176 



MAGNA CARTA: 
TEXT, TRANSLATION, COMMENTARY. 

PREAMBLE. 

I. The King's Title. II. The names of the consenting Nobles. III. 

The Motives of the Grant - - - - - - -186 

CHAPTER ONE. 

1. The Rights of the National Church : (i) Quod Anglicana ecclesia 
libera sit ; (2) Canonical Election. II. Civil and Political 
Rights --- 190 

CHAPTER TWO. 

I. Assessment of Rehefs. II. Units of Assessment : (i) Feodum 
militis integrum ; (2) Baronia Integra ; (3) Baronia comitis 
Integra. III. LiabiUty of Church Property to " Relief " - • 196 

CHAPTER THREE. 
i£\ No Relief after Wardship • 203 



9> 



CHAPTER FOUR. 

Wardship : (i) The Definition of Waste ; (2) Punishment of Waste- 
ful Guardians ; (3) Provision against Recurrence - - - 205 



CONTENTS xi 



CHAPTER FIVE. pack 

]^I. The Obligations of the Warden of a Lay-fief. II. Wardship over 

^ Vacant Sees -- 209 



CHAPTER SIX. 
The Marriage of Wards -.* 212 

CHAPTER SEVEN. 

I, The Widow's Share of Real Estate : (i) Dower ; (2) Maritagium ; 
(3) Hereditas. II. Her Share of Personal Estate. III. Pro- 
vision for her Immediate Needs : (i) Quarantine ; (2) Estovers 
of Common ---------- 215 

CHAPTER EIGHT. 
Marriage of Widows --------- 220 

CHAPTER NINE. 
Procedure for Enforcing Payment of Debts - • - - -221 

CHAPTER TEN. 

Usury. I. The History of the Jews in England. II. Legal Position 

of the Jews 223 



CHAPTER ELEVEN. 
^ Widows and Children of Debtors to be Protected against Creditors 230 

S^ CHAPTER TWELVE. 

Protection of Crown Tenants from Arbitrary Exactions : (i) 
Feudal Aids ; (2) Scutage. II. Protection of London from 
Arbitrary Exactions : (i) Aid ; (2) Tallage ; (3) Comparison of 
Aid and Tallage ; {4) London's attempts to escape Tallage ; 
{5) Effects of Omission of Tallage from Magna Carta ; (6) 
Nature of the Protection accorded to London ; (7) Later History ,- 
of the Crown's Right to Tallage the Towns. III. Magna Carta 1 ^ 
and the Theory of ParUamentary Taxation - • • - 231 

CHAPTER THIRTEEN. 
Liberties and Free Customs of London «-••-• 240 




CONTENTS 



•X- CHAPTER FOURTEEN. p^ge 

Method of obtaining the Common Council of the Kingdom. I. 
Nature of the Summons. II. Composition of the Council. 
III. Position of " Minor Barons." IV. Representation. V. 
Powers of the Council. VI. Rights of Majorities and Minorities 248 



9(r CHAPTER FIFTEEN. 

Restrictions on Mesne Lords taking Aids. I. Points of difference 
between tenants-in-chief and under-tenants. II. The influence / 
of Magna Carta upon later practice - . - - , 256 

CHAPTER SIXTEEN. 
No one to perform greater service for a tenement than is due - • 260 

•d^ CHAPTER SEVENTEEN. 

Common Pleas. I. The Curia Regis as a Court of Law. II, Com- 
mon Pleas and Royal Pleas. III. Influence of Magna Carta on 
Genesis of the three Courts of Common Law. IV. Evolution 
of the Court of Common Pleas. V. Common Pleas and the 
Exchequer ... 261 

:V CHAPTER EIGHTEEN. 

Petty Assizes. I. The Curia Regis and the Travelling Justices, 
II. Nature and Origin of the three Petty Assizes. III. Aims 
of Magna Carta. IV. Effects of Magna Carta. V. An Erroneous 
View. VI. Later History of the Justices of Assize - - ~ 269 

;:(c CHAPTER NINETEEN. 
Procedure at Petty Assizes • 282 

^CHAPTER TWENTY. 

Amercement. I. Three Stages of Criminal Law : (i) The blood- 
feud ; (2) Fixed money-payments ; (3) Amercements. II. 
Magna Carta and Amercements : (i) Of Freeholders ; (2) Of 
Merchants ; {3) Of Villeins ; (4) Fines and Amercements ; (5) 
Contenement 284 

CHAPTER TWENTY-ONE. 
Amercement of Earls and Barons 295 



CONTENTS xiii 

CHAPTER TWENTY-TWO. page 

Amercement of the Clergy 298 

CHAPTER TWENTY-THREE. 

I. Origin of Obligation to make Bridges. II. The King's Interest 

in the Repair of Bridges. III. Erroneous Interpretations - - 299 

At CHAPTER TWENTY-FOUR. 

I. Pleas of the Crown. II. Keeping and Trying Criminal Pleas. 
III. The Intention of Magna Carta. IV. An Erroneous View. 
V. Local Magistrates under John : (i) The Sheriff ; (2) The 
Constable ; (3) The Coroner ; (4) The Bailiff - • - - 304 

CHAPTER TWENTY-FIVE. 
Farms of Counties and Hundreds - - - - - - -317 

CHAPTER TWENTY-SIX. 

Crown Debtors. I. Nature of the Grievance. II. The Right to 

Bequeath - .-.- 321 

CHAPTER TWENTY-SEVEN. 
Intestate Succession 326 

CHAPTER TWENTY-EIGHT. 

I. Purveyance in General. II. Branches of it restricted by Magna 

Carta. III. Its other Branches ..-..- 329 

CHAPTER TWENTY-NINE. 
Castle-Guard - 333 

CHAPTER THIRTY. 
Purveyance of Horses and Carts - 334 

CHAPTER THIRTY-ONE. 
Purveyance of Timber 336 



xiv CONTENTS 



CHAPTER THIRTY-TWO. page 

I. The Crown's Claim to Felons' Property : (i) Lands ; (2) Chattels. 

11. Indictment, Conviction, and Attainder - • - - 336 



CHAPTER THIRTY-THREE. 
Obstructions to be removed from Rivers . • # • - 343 

9f CHAPTER THIRTY-FOUR. 

The Writ " Praecipe." 1. Royal Writs and the Feudal Jurisdictions. 
^ / II. The Intention of Magna Carta. III. Expedients for evading 

^y Magna Carta. IV. Influence upon Later Legal Development - 346 

CHAPTER THIRTY-FIVE. 
Standards of Weights and Measures - - - • • • 356 

4;' CHAPTER THIRTY-SIX. 

Writ de Odio et Atia. I. Trial by Combat prior to John's Reign. 
II. Writ of Life and Limb. 111. Its Subsidiary Uses. IV. 
Later History of Appeal and Battle 359 



% 




CHAPTER THIRTY-SEVEN. 
Prerogative Wardship -.-- 367 

CHAPTER THIRTY-EIGHT. 

No BaiUff to put anyone to his " law " without Witnesses. I. 
Medieval Interpretations. 11. Modern Interpretations. III. 
Nature of the Grievance ----••• 369 



CHAPTER THIRTY-NINE. 

. Its Main Object : (i) Judgment must precede execution ; (2) Per 
judicium parium ; (3) Per legem terrae ; (4) Meaning of " vel." 
11. The scope of the Protection afforded. Ill, What classes of 
men enjoyed it. IV. Reactionary Aspects. V. Genesis of this 
Chapter. VI. Later History of " Judgment of Peers." VII. 
Erroneous Interpretations ----.-- 375 



CHAPTER FORTY. 
Justice not to be Sold, Refused, or Delayed ----- 395 



CONTENTS XV 

CHAPTER FORTY-ONE. p^ge 

Freedom of Trade. I. Magna Carta favours Alien Merchants. II. 
Customs and Tolls. III. The Motives prompting this Chapter. 
IV. English Boroughs and Merchant Strangers - - - 398 

CHAPTER FORTY-TWO. 
Liberty to leave the Kingdom — Writs ne exeat regno - - . 407 



CHAPTER FORTY-THREE. 
Tenants of Escheated Baronies - . - - 



411 



CHAPTER FORTY-FOUR. 

I. The Royal Forests. II. Their Origin. III. Forest Officials. IV. 
Forest Courts. V. Chases, Parks, and Warrens. VI. Forest 
Rights and Forest Grievances. VII. Later History of Forests 
and Forest Laws .--.---.. ^i^ 



CHAPTER FORTY-FIVE. 
Justices, Castellans, Sheriffs, and Bailiffs to be law-abiding men - 431 

CHAPTER FORTY-SIX. 
Wardship over Vacant Abbeys 433 

CHAPTER FORTY-SEVEN. 
Forests and River-banks encroached upon by John - . • 435 

CHAPTER FORTY-EIGHT. 
Procedure for aboUshing Evil Customs of Forests and elsewhere - 438 

CHAPTER FORTY-NINE. 
Hostages and Charters to be restored - - - - - -441 

CHAPTER FIFTY. 
List of those excluded from offices of trust in future - - - 444 

CHAPTER FIFTY-ONE. 
Banishment of Foreign Mercenaries ---••- 447 



xvi CONTENTS 

CHAPTER FIFTY-TWO. page 

Procedure for redressing wrongful Disseisins - - - - - 448 

CHAPTER FIFTY-THREE. 
A Crusader's Respite allowed to John 450 

CHAPTER FIFTY-FOUR. 
fcjtTS Right of Appeal by Women 451 

CHAPTER FIFTY-FIVE. 
Remission of Unjust Fines and Amercements - - - 454 

CHAPTER FIFTY-SIX. 
Redress for Welshmen wrongfully disseised by John - - - 456 

CHAPTER FIFTY-SEVEN. 
Redress for Welshmen wrongfully disseised by Henry II. or Richard I. 457 

CHAPTER FIFTY-EIGHT. 
Welsh Hostages and Charters to be restored 458 

CHAPTER FIFTY-NINE. 

Justice to be done to King of Scots ; Relations of England and 

Scotland 459 

CHAPTER SIXTY. 
Extension of Provisions of Charter to Tenants of Mesne Lords - 463 

CHAPTER SIXTY-ONE. 

Forma Securitatis or Legal Sanction of the Charter. I. Nature of 
the Security. II. Details of Scheme : (i) Twenty-five 
Executors ; (2) A quorum may act ; (3) Sub-committee of 
four ; (4) Local Agents ; (5) Co-operation of Public. III. 
Relations to Contemporary Theory. IV. Modem Criticism. 
V. Failure of Scheme - - ----- - 465 

CHAPTER SIXTY-TWO. 
Prelates to issue Letters Testimonial 478 



CONTENTS xvii 



CHAPTER SIXTY-THREE. pace 

Formal Clauses 479 



APPENDIX. 

Documents Relative to, or Illustrative of, John's 
Magna Carta : 

I. The Charter of Liberties of Henry I. (i 100) - - - 481 

II. The Second or Oxford Charter of Stephen (1136) - - 483 

III. Charter of Henry II. {circa 1154) ----- 485 

IV. The so-called " Unknown Charter of Liberties " - - 485 
V. The Articles of the Barons (1215) ----- 487 

yi. Writs Supplementary of John's Great Charter - - 493 

VII. The Great Charter of Henry III. (Third Re-issue, 1225) 497 

VIII. Carta de Foresta (1217) 508 

Select Bibliography and List of Authorities referred 

TO - - - - - - - - - - 513 

Index of Statutes 519 

General Index 521 



HISTORICAL INTRODUCTION 



PART I. 
EVENTS LEADING TO MAGNA CARTA. 

The Great Charter is too often treated as the outcome of 
accidental causes ; its sources are traced no deeper than the 
personal tyrannies and blunders of King John. That mon- 
arch's misdeeds are held to have goaded into action a 
widespread opposition that never rested until it had achieved 
success; and the outcome of this success was the Great 
Charter of Liberties. The moving causes of events of 
tremendous moment are thus sought in the characteristics 
and vices of one man. If John had never lived and sinned, 
so it would appear, the foundations of English freedom 
would never have been laid. 

Such shallow views of history fail to comprehend the 
magnitude and inevitable nature of the sequence of causes 
and effects upon which great issues depend. The com- 
pelling logic of events forces a way for its fulfilment, 
independent of the caprices, aims and ambitions of 
individual men. The incidents of John's career are the 
occasions, not the causes, of the movement that laid the 
foundations of English liberties. The origin of Magna 
Carta lies too deep to be determined by any purely contin- 
gent phenomena. It is as unwise as it is unnecessary to 
suppose that the course of constitutional development in 
England was violently wrested into a new channel, merely 
because of the incapacity or cruelties of the temporary occu- 
pant of the throne. The source of the discontent fanned 
to flame by John's oppressions must be sought in earlier 
reigns. The genesis of the Charter cannot be understood 
apart from its historical antecedents. 



4 EVENTS LEADING TO MAGNA CARTA 

It is thus necessary briefly to narrate how the scattered 
Anglo-Saxon and Danish tribes and territories, originally 
unconnected, were slowly welded together and grew into 
England; how this fusion was made permanent by the 
growth of a strong centralized government which crushed 
out local independence, and threatened to become the most 
absolute despotism in Europe; how, finally, the Crown, 
because of the very plenitude of its power, called into play 
opposing forces, which set limits to royal prerogatives and 
laid the foundations of the reign of law. Such a survey of 
the early history of England reveals two leading movements ; 
the establishment of a strong Monarchy able to bring 
order out of anarchy, and the establishment of safeguards 
to prevent this source of order from degenerating into 
an unrestrained tyranny, and so crushing out not merely 
anarchy but legitimate freedom as well. The later move- 
ment, in favour of liberty and the Great Charter, was the 
natural complement, and, in part, the consequence of the 
earlier movement in the direction of a strong government 
able to enforce peace. In historical sequence, order pre- 
cedes freedom. 

These two problems, mutually complementary, arise in 
the history of every nation, and in every age : the problem 
of order, or how to found a central government strong 
enough to suppress anarchy, and the problem of freedom, 
or how to set limits to an autocracy threatening to over- 
shadow individual liberty. Deep political insight may still 
be acknowledged in '^sop's fable of Jupiter and the frogs. 
King Log proves as ineffective against foreign invasion as 
he is void of offence to domestic freedom; King Stork 
secures the triumph of his subjects in time of war, but 
devours them in time of peace. All nations in their early 
efforts to obtain an efficient government have to choose 
between these two types of ruler — between an executive, 
harmless but weak ; and one powerful to direct the business 
of government at home and abroad, but ready to use powers 
entrusted to him for the good of all, for his own selfish aims 
and the trampling out of his subjects' liberties. 

On the whole, the miseries of the long centuries of Anglo- 



EVENTS LEADING TO MAGNA CARTA 5 

Saxon rule were the outcome of the Crown's weakness; 

i while, at the Norman Conquest, England escaped from the 

; mild sceptre of inefficiency, only to fall under the cruel 

\^ sceptre of selfish strength. Yet the able kings of the new 

dynasty, powerful as they were, had to struggle to maintain 

their mastery ; for the unruly barons fought vigorously to 

shake off the royal yoke. 

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

The main plot, then, of early English history, centres 
in the attempt to found a strong monarchy, and yet to 
set limits to its strength. With this main plot subordinate 
plots are interwoven. Chief among these must be reckoned 
the necessity of defining the relations of the central to the 
local government, and the need of an acknowledged frontier 
between the domains of Church and State. On the other 
hand, all that interesting group of problems connected with 
the ideal form of government, much discussed in the days of 
Aristotle as in our own, is notably absent, never having 
been forced by the logic of events upon the mind of medieval 
Europe. Monarchy was accepted as the only possible 
scheme of government ; the merits of aristocracy and demo- 
cracy, or of the much-vaunted constitution known as 
"mixed" were not discussed, since these forms of consti- 
tution did not lie within the sphere of practical politics. 
The student of history will do well to begin by concentrat-" 
ing his attention on the main problem, to which the others 
are subsidiary. 

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

The difficulties that surrounded the English nation in its 
early struggles for existence were formidable. The great 
problem was, first, how to get itself into being, and there- 



6 EVENTS LEADING TO MAGNA CARTA 

after how to guard against the forces of disintegration, 
which strove without rest to tear it to pieces again. The 
dawn of EngHsh history shows the beginning of that long 
slow process of consolidation in which unconscious reason 
played a deeper part than human will, whereby many dis- 
cordant tribes and races, many independent provinces, were 
crushed together into something bearing a rude likeness to 
a united nation. Many forces converged to the achieve- 
ment of this result. The coercion of strong tribes over 
weaker neighbours, the pressure of outside foes, the growth 
of a body of law, and of public opinion, the influence of 
religion as the friend of peace, all helped to weld together a 
chaos of incongruous and warring elements. 

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

The stern discipline of foreign conquest was required to 
make national unity possible; and, with the restoration of 
the old Wessex dynasty in the person of Edward Confessor, 
the forces of disintegration again made headway. England 
threatened once more to fall to pieces, but the irofi rule of 
the Normans came to complete what the Danes had begiin 
half a century before. As the weakness of the Anglo- 
Saxon kings and the disruption of the country had gone 
hand in hand; so the complete unification of England was 
the result of the Norman despotism. 

Thereafter, it was the strength of its monarchy that 

rendered England unique in medieval Europe. Three 

x^ kings in particular contributed to this result — William 

the Conqueror, Henry Beauclerk, and Henry Plantagenet. 



WILLIAM I. TO HENRY II. 7 

In a sense, the work of all three was the same; to build up 
the central authority against the disintegrating effects of 
feudal anarchy. But the policy of each was modified by 
changing times and needs. The foundations of the edifice 
were laid by the Conqueror, whose character and circum- 
stances combined to afford him an opportunity unparalleled 
in history. The difficulties of his task, and the methods 
by which he secured a successful issue, are best understood 
in relation to the nature of the obstacles to be overcome. 
Feudalism was the great current of the age — a tide formed 
by many converging streams, all flowing in the same 
direction, unreasoning like the blind powers of Nature, 
carrying away or submerging every obstacle in its path. 
In other parts of Europe — in Germany, France, and Italy, 
as in Scotland — the ablest monarchs found their thrones 
endangered by this feudal current. In England alone the 
monarchy stood firm. William I. refrained from any 
attempt to stay the torrent; but, while accepting it, he 
made it serve his own purposes. He watched and modified 
the tendencies making for feudalism, which he found in 
England, and he profoundly altered the feudal usages 
and rights transplanted from Norman soil. The special 
expedients used by him for this purpose are well known, 
and are all closely connected with his crafty policy of 
balancing Anglo-Saxon against Norman elements, and of 
selecting what suited him in either. He encouraged the 
adoption in England of feudalism, considered as a system 
of land tenure and of social distinctions based on the 
possession of land; but he successfully checked the evils 
of its unrestrained growth as a system of local government 
and jurisdiction. 

William's policy was one of balancing. Not content to 
depend entirely on the right of conquest, he insisted on 
having his title confirmed by a body claiming to represent 
the Witenagemot, and alleged that he had been named 
successor by his kinsman, Edward Confessor, a nomination 
strengthened by the renunciation of Harold in his favour. 
Thus, to Norman followers claiming to have set him by 
force of arms on his throne, William might point to the 



8 ^ EVENTS LEADING TO MAGNA CARTA 

election by the Witan, while for his English subjects, 
claiming to have elected him, the presence of foreign 
troops was an effective argument. Throughout his reign, 
he played off the old English laws and institutions against 
the new Norman ones, with himself as umpire over all. 
He retained, too, the popular moots or meetings of the' 
shire and hundred as a counterpoise to the feudal juris- 
dictions; the fyrd or militia of all free men as a set-off - 
to the feudal levy; and whatever incidents of the Anglo- 
Saxon land tenures he thought fit. 

Thus the Norman feudal superstructure was built on a 
I ii"^' basis of Anglo-Saxon usage and tradition. William, how- 
ever, did not shrink from innovations where these suited 
his purpose. The great earldoms into which England 
had been divided, even down to the Norman Conquest, were 
abolished. New earldoms were indeed created, but on a 
different basis. Even the great officers subsequently 
known as Earls Palatine, always few in number, never 
attained to the independence of the Anglo-Saxon Ealdor- 
men. William was chary of creating even ordinary Earls, 
and such as he did create soon became mere holders 
of empty titles of honour, ousted from all real power by 
the Norman vicecomites or sheriffs. No English earl was 
a " Count " in the continental sense of a real ruler of a 
" County." No earl was allowed to hold too large an 
estate within his titular shire. 

ingenious devices were used for checking the feudal 
excesses so prevalent on the Continent. Rights of private 
war, coinage, and castle-building, were jealously circum- 
scribed; while private jurisdictions, although tolerated as 
a necessary evil, were kept within bounds. The manor 
was in England the normal unit of seignorial jurisdiction ; 
the higher courts of Honours were exceptional. No appeal 
lay from the manorial court of one magnate to that of his 
over-lord, while, in later reigns at least, appeals were 
encouraged to the Curia Regis, The results of this policy 
have been aptly summarized as " a strong monarchy, a 
relatively weak baronage, and a homogeneous people." 

During the reign of William II. (1087-1100) the Con- 



WILLIAM I. TO HENRY II. 9 

stitution made no conspicuous advance. The foundations 
had been laid; but Rufus was more intent on his hunting 
and enjoyments, than on the deeper matters of statecraft. 
Minor details of feudal organization were doubtless settled 
by the King's Treasurer, Ralph Flambard ; but the extent 
to which he innovated on the practice of the elder William 
is matter of dispute. On the whole, the reign must be 
reckoned a time of comparative rest between two periods 
of advance. 

Henry I. (1100-35) took up, with far-seeing statesman- 
ship and much vigour, the work of consolidation. His 
policy shows an advance upon that of his father. William 
had been content to curb the main vices of feudalism. 
Henry introduced within the Curia Regis itself a new class 
of men, representing a new principle of government. The 
great offices of state, previously filled by holders ofrs.. 
barbmes, were now given to creatures of Henry's own, men "^ 
of humble birth, whose merit had raised them to his favour, 
and whose only title to power lay in his goodwill. Henry's 
other great achievement was the organization of the Exche-^ 
quer,^ as a source of royal revenue, and as an instrument 
for making his will felt in every corner of England. For 
this great work he was fortunate to secure in Roger, 
Bishop of Salisbury, the help of a minister who combined 
genius with painstaking ability. At the Exchequer, as _ 
organized by the King and his minister, the sheriff of each 
county twice a year, at Easter and at Michaelmas, rendered 
account of every payment that had passed through his 
hands. His balance was adjusted before all the great 
officers of the King's household, who subjected his accounts 
to close scrutiny. Official records were drawn up, one of 
which — the famous Pipe Roll of 1130 — is extant at the 
present day. As the sums received by the sheriff affected 
every class of society in town and country, these half-yearly 
audits enabled the King's advisers to scrutinize the lives 
and conduct of high and low. , These half-yearly investiga- 
tions were rendered more effective by the existence at the 
Exchequer of a great record of every landed estate in Eng- 
land. With this the sheriffs' returns could be compared 



10 EVENTS LEADING TO MAGNA CARTA 

and checked. Henry's Exchequer thus found one of its 
most powerful weapons in the great Domesday Survey, 
the most enduring proof of the statesmanship of the Con- 
queror, by whose orders and under whose direction it had 
been compiled. 

The central scrutiny conducted within the Exchequer 
was supplemented by occasional inspections conducted in 
each county. The King's representatives, including 
among them the officers who presided over the half-yearly 
audit, visited, at intervals still irregular, the various shires. 
These Eyres, as they were called, were at first under- 
taken chiefly for financial purposes. The sheriffs' accounts 
rendered at Westminster were checked locally on the scene 
of their labours. These investigations necessarily involved 
the trial of pleas. Complaints of oppression at the hands 
of the local tyrant were made and determined on the spot ; 
gradually, but not until a later reign, the judicial business 
became equally important with the financial, and ultimately 
even more important. 

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



I 



WILLIAM I. TO HENRY II. ii \ 

fragments by the claims of rival magnates to local inde- 
pendence. 

With the accession of Henry II. (1154) the tide quickly 
turned, and turned for good7 Ofthe numerous steps taken 
by him to complete the work of the earlier master-builders 
of the English Monarchy, only a few need here be 
mentioned. Ascending the throne in early manhood, he 
brought with him a statesman's instinct peculiar to himself, 
together with the unconquerable energy common to his 
race. He rapidly ove rhauled every instituti on and every ^^ 
b ranch of administration ^ The permanent Cj[ma_i?^g^>l* 
was not only restored to working or3er, but improved~iri 
eacE~or its many aspects-^asIHe Kmj^V^househoTg^^ 
finanoiF bu gauT^^^ adm inistrative centre nfjJT^Jdng, 
dom, and as the vehi cle of royal justice. The Ex chequer>y^ - 
which was originally merely tlie~Curia in its financial ^ 
aspect, received the re-organization so urgently needed 
after the terrible strains to which it "Rad beerTsubjecfe^'. 
The Pipe Roll s were revived and financial reforms effected. < 
The old popular c ourts of hundr e d and cou nty^, and the^'^ ^' 
feudal jurisdictions were b rought under more effective 
control of the central gfovernment by t he r estoratiorToTThe 

„.^ — — £2 — .. . i ww J 

system^^oTE vres with their travelling justices, whose visits 
were now placed on a more systematic basis. Equally 
important were the Kiaglsj^re in Jhe selff tion of fitmen v^U 
for the duties of Sheriff , the frequent punishment and 
removal from ofBce of offenders, and the restored control 
over all in authority. Henry was strong enough to employ 
more substantial men than the novi homines of his grand- 
father without suffering them to get out of hand. Another 
expedient for controlling local courts was the calling up^|K -. 
of cases to his own central feudal Curia, or before those " 
benches of professional judges, the future King's Bench 
and Common Pleas, that formed as yet merely committees 
of the Curia as a whole. 

Closely connected with these innovations was the new 
system of procedure instituted by Henry. The chief 
feature was that each litigation must commence with an 
appropriate, rgy^l writ issued from the Chancery. Soon 



12 EVENTS LEADING TO MAGNA CARTA 

for each class of action was devised a special writ, and the 
system came to be known as " the writ system." A striking 
feature of Henry's policy was the bold manner in which he 
threw open the doo rs of his royal Courts of Law to all- 

yf come rs~^excepting villeins ), and^ provided" there^ — alwa ys 
iiV- return for hard cash» be it said — a better article in^ ame 
of^ju stice than could be procured elsew here i n Englan d, 
or, for that matter, elsewhere in Europe. "Thus, not oTily 
was the Exchequer filled with fines and fees, but, insidi- 
ously and without the danger involved in a frontal attack, 
Henry sapped the strength of the great feudal magnates, 
and dmil£ d the stream of liti ga nts from m anorial courts 
to his own. The same policy had_aJlll ther result in taciIT- 
tating the growth of a body of com mon law, uniform 
throughout the length and breadth of England, opposed 
to the varying usages of localities and individual baronial 
courts. 

C^; The reorganization of the army was another reform that 
helped to strengthen the throne of Henry and his sons. 
This was effected in various ways : partly by the revival 
and more strict enforcement of obligations connected with 
the Anglo-Saxon fyrd, under the Assize of Arms (1181), 
which compelled every freeman to maintain at his own 
expense weapons and warlike equipment suited to his station 
in life; partly by the ingenious method of increasing 
the amount of feudal service due from Crown tenants, 
based upon an investigation instituted by the Crown and 
upon the written replies returned by the barons, known 
to historians as "the Cartae of 1166"; and partly by the 
development of the principle of scutage, a means whereby 
unwilling military service, limited as it was by annoying 
restrictions as to time and place, might be exchanged at 
the option of the Crown for money, with which a more 
7- flexible army of mercenaries might be hired. 

By these expedients and many others, Henry raised the 
English monarchy, always in the ascendant since the Con- 
quest, to the very zenith of its power, and left to his sons 
the entire machinery of government in perfect working 
order, combining high administrative efficiency with great 



WILLIAM I. TO HENRY II. 13 

strength. Full of bitter strifes and troubles as his reign 
of thirty-five years had been, nothing had interfered with 
the vigour and success of the policy whereby he tightened 
his hold on England. Neither the long struggle with Becket, 
ending as it did in Henry's personal humiliation, nor the 
unnatural warfare with his sons, which hastened his death 
in 1 189, was allowed to interfere with his projects of reform 
in England. 

The last twenty years of life had been darkened for him, 
and proved troubled and anarchic in the extreme to his 
continental dominions; but in England profound peace 
reigned. The last serious revolt of the powers of feudal 
anarchy had been suppressed in 11 74 with characteristic 
thoroughness and moderation. After that date, the Eng- 
lish monarchy retained its supremacy almost without an 
effort. 

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

It is necessary to retrace our steps in order to consider 
the subsidiary problem of local government. The failure 
of the Princes of the House of Wessex to devise adequate 
machinery for keeping the Danish and Anglian provinces 
in subjection to their will was one main source of the weak- 
ness of their monarchy. When Duke William solved this 
problem, he took an enormous stride towards establishing 
his throne on a securer basis. 

Every age has to face, in its own way, a group of diffi- 
culties essentially the same, although assuming different 
names as Home Rule, Local Government, or Federation. 
Problems as to the proper nature of the local authority, 
the extent of its powers, and its relation to the central 
government, require constantly to be re-stated and solved 
anew. The difficulties involved, always great, were 
unspeakably greater in an age when no proper administra- 
tive machinery existed, and when rapid communication 
and serviceable roads were unknown. Lively sympathy 
is excited by consideration of the difficulties that beset the 
path of King Edgar or King Ethelred, endeavouring to * 
rule from Winchester the distant and alien races of North- 



14 EVENTS LEADING TO MAGNA CARTA 

umbria, Mercia, and East Anglia. If a weakling governed 
a distant province, anarchy would result and the King's 
authority might suffer with that of his inefficient repre- 
sentative; while a powerful viceroy might consolidate his 
own authority and then defy his King. The two horns of 
this dilemma are amply illustrated by the course of early 
English history. The West-Saxon Princes vacillated 
between two lines of policy ; spasmodic attempts at 
centralization alternated with periods of local autonomy. 
The scheme of Edgar and Dunstan has sometimes been 
described as a federal or home-rule policy — as a frank 
surrender of the attempt to control exclusively from one 
centre the mixed populations of Northern and Midland 
England. Their solution was to relax rather than tighten 
the bond ; to entrust with wide powers the local viceroy in 
each district, and to aim at a loose federal empire — a union 
of hearts, rather than a centralized despotism founded on 
coercion. The dangers of such a system are obvious, 
where each ealdorman commanded the troops of his 
province. 

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



WILLIAM I. TO HENRY 11. 

Among the expedients adopted by the Norman Duke 
for curbing his feudatories in England, one of the most 
important was the reorganization of the system of provincial 
rulers. The real representative of the King in each group 
of counties was now the sheriff, not the earl. His Latin, 
name of vicecomes is misleading, since that officer in no 
sense represented the earl or comes, but acted as the direct 
agent of the Crown. The name " viceroy " more accurately 
describes his actual position and functions. • 

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

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

With the accession of Henry II. some advance was made 
towards a permanent solution. That great ruler was strong 
enough to prevent the growth of the hereditary principle 
as applied to offices either of the Household or of local 
magistrates. The sheriffs were frequently changed, not 
only by the drastic and unique measure known as the 

^ In one county, Westmoreland, the office did become hereditary. 



l6 EVENTS LEADING TO MAGNA CARTA 

Inquest of Sheriffs, but systematically, and as a matter of 
routine. Their power tended in the thirteenth century to 
decrease, chiefly because they found important rivals not 
only in the itinerant judges, but also in two new officers 
first heard of in the reign of Richard I., the forerunners 
of the modern Coroner and Justice of the Peace respectively. 
All fear that the sheriffs as administrative heads of districts 
might defy the Crown was thus ended. Yet each of them 
remained a petty tyrant over the inhabitants of his own 
bailiwick. While the Crown was able and willing to 
avenge neglect of its own interests, it was not always 
sufficiently alert to punish wrongs inflicted upon its humble 
subjects. The problem of local government, then, was 
fast taking a new form, namely, how best to protect the 
weak from unjust fines and oppressions inflicted on them- 
by local magistrates. The sheriff's local power was no 
longer a source of danger to the monarch, but had become 
an effective part of the machinery which enabled the Crown 
to levy with impunity its always increasing taxation. 

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

The Church had been, from an early date, in tacit 
alliance with the Crown. The friendly aid of a line of 
statesman-prelates from Dunstan downwards had given to 
the Anglo-Saxon monarchy much of the little strength it 
possessed. Before the Conquest the connection between 
Church and State had been exceedingly close, so much so 
that no one thought of drawing a sharp dividing line 
between. What afterwards became two separate entities 
were at first merely two aspects of one society, which 
comprehended all classes of the people. Change came with 
the Norman Conquest ; for the English Church was brought 
into closer contact with Rome, and- with the ecclesiastical 
ideals prevailing on the Continent. Yet no fundamental 
alteration resulted; the friendly relations that bound the 
prelates to the English throne remained intact, while Eng- 
lish Churchmen continued to look to Canterbury, rather 
than to Rome, for guidance. 



WILLIAM I. TO HENRY XL 17 

Gratitude to the Pope for moral support in eifecting the 
Conquest never modified William's determination to allow 
no unwarranted papal interference in his new domains. 
His letter, both outspoken and courteous, in reply to papal 
demands is still extant : — " 1 refuse to do fealty nor will I, 
because neither have I promised it, nor do I find that my 
predecessors did it to your predecessors." Peter's pence 
he was willing to pay at the rate recognized by his Saxon 
Xjredecessors; but all encroachments would be politely repelled. 

In settling the country newly reduced to his domination, 
the Duke of Normandy found his most valuable adviser 
in a former prior of the Norman Abbey of Bee, whom he 
raised to be Primate of all England. No record has come 
down to us of any serious dispute between William and 
Lanfranc. Friendly relations between King and Arch- 
bishop continued, notwithstanding Anselm's condemnation 
of the evil deeds of Rufus. Anselm supported that 
King's authority over the Norman magnates, even while 
he resented his evil practices towards the Church. He 
contented himself with a dignified protest (made emphatic 
by a withdrawal of his presence from England) against 
unfair exactions from English prelates, and against the 
long intervals during which vacancies remained unfilled. 

Returning at Rufus's death from a sort of honourable 
banishment at Rome, Anselm found himself compelled, by 
his conscience and the recent decrees of a Lateran Council, " 
to enter on the great struggle of the investitures. 

In many respects, the spiritual and temporal powers were 
still indissolubly locked together. Each bishop was a 
vassal of the king, holder of a Crown barony, as well as a 
prelate of Holy Church. By whom, then, should a bishop 
be appointed, by the spiritual or by the temporal power? 
Could he without sin perform homage for the estates of 
his See? Who ought to invest him with ring and crozier? 
Anselm adopted one view; Henry the other. A happy 
compromise, suggested by the King's statesmanship, or 
possibly by Bishop Ivo of Chartres,^ healed the breach for 

^ Adams, Pol. Hist, of Engl., II. 141. See, however, Davis, England under 
Norman s^ 1 32. 

B 



i8 EVENTS LEADING TO MAGNA CARTA 

the time being. The symbols of spiritual authority were 
to be conferred by the Church, but each prelate must 
perform fealty to the King before receiving them, and da 
homage thereafter, but before he was actually anointed 
as bishop. This compromise of 1106 did not embrace, it 
would appear, any final understanding as to the method 
of appointing bishops : " Canonical election " formed no 
part of Henry's express concessions. 1 

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

The Church gained in power during Stephen's reign, 
arid deserved the power it gained, since it remained the 
only stable centre of good government, while other institu- 
tions crumbled around it. It was not unnatural that 
Churchmen should advance new claims, and we find them 
adopting the watchword, afterwards so famous, " that the 
Church should be free," a vague phrase, destined to be 
embodied in Magna Carta. The extent of immunity thus 
claimed was never defined : an elastic phrase might be 
expanded with the ever-growing pretensions of the Church. 
Churchmen made it clear, however, that they meant it to 
include at least two principles — "benefit of clergy," and 
"canonical election." 

Henry II. attempted to define the position in the Con-' 
stitutions of Clarendon (1164), clause 12 of which provided 
that in filling vacant Sees the King should summon potiores 
personas ecclesiae and that the " election " should>take place 
in the King's chapel with consent of the King and consilio 
personarum regni, vague words which seem to reserve to 
Henry the decision as to who constituted " the more 
influential persons of the church," whom he ought to 
summon, thus enabling him to control elections (as his 

^ Adams, FoL Hist, of Engl., II. 148. Contrast the older view in Stubbs, 
Const. Hist., I. 342-3. 



WILLIAM I. TO HENRY II. 19 

grandfather had done) by means of ecclesiastics whose 
loyalty to the Crown was undoubted. Henry, in conse- f\^ 
quence of his humiliation following on Becket's murder, 
had to release the bishops from their oath to observe the .^ 
Constitutions. In 11 73 he gave a definite promise to allow 
greater liberty in elections, and it was part of a new agree- 
ment with Rome in 1176, that in normal circumstances 
vacant sees should not be kept in the King's hands for 
more than a year.^ Yet, in practice, he continued to 
exercise a control not inferior to that enjoyed by his grand- 
father. On the whole, the rights of the Church at the close 
of the reign of Henry Plantagenet were not far different 
from what had been set down in the Constitutions of 
Clarendon. A new definition of the frontier between the 
spiritual and temporal powers was the outcome of John's 
need of allies on the eve of Magna Carta. 

IV. Richard I. and John. 

Henry II., before his death, had fulfilled the task of 
restoring order : to effect this, he had brought to perfection 
machinery of rare excellence, equally adapted for purposes 
of taxation, of dispensing justice, and of general adminis- 
tration. Great as was the power for good of this new 
instrument in the hands of a wise and justice-loving king, -. 
it was equally powerful for evil in the hands of an arrogant,? (Jy 
or even of a careless monarch. All the old enemies of> 
the Crown had been crushed. Local government, now? 
systematized, formed a source of strength, not of weakness ;j 
while the Church, whose highest offices were filled withi 
officials trained in Henry's own Exchequer (differing widel}^ 
from the type of saintly monks like Anselm), still remaineq 
the fast friend of the Crown. The monarchy was strong _ 
enough to defy any one section of the nation. 

The very thoroughness with which the monarchy had 
surmounted its early difficulties, induced in Henry's sue- /^,/\. 
cessors an exaggerated feeling of security. The very "^ 
abjectness of the various factors of the nation, now prostrate 
beneath the heel of the Crown, prepared them to sink their 

^ Makower, Const. Hist, of Church, 24-26. 



20 EVENTS LEADING TO MAGNA CARTA 

mutual suspicions and to form a tacit alliance in order to 

join issue with their common oppressor. Powers us ed 

k ; ^; ,, moderatelyand^onj^ for national ends by Henry,' 

^; were^bused~Tor^seIfis ji ends by both his so ns. Richard 's 

Ch heayy taxatio n and contemptuous indiffe rence_to_Enjglish 

/ int erests reconciled men's minds to thou gh ts of chan ge, and 

prepared the basis of a combined opposition to a power j HaT 

threatened to grind all other powers t^ powd er . 

"rn~no direction were these^buses felt so seyerely as in 

O taxation. Financial machine ry had been elaborated to 

perfection, and large additional sums could be squeezed 

from eyery class by an extra turn of the screw. Richard 

did not eyen require to incur the odium, since ministers, 

his instruments, shielded him from the unpopularity of 

his measures, while he pursued his own good pleasure 

abroad in war and tournament without yisiting the subjects 

« he oppressed. Twice only, for a few months in either case, 

did Richard yisit England during a reign of ten years. 

In his absence new m ethods of taxa tion were deyised, 
aff ecting new classes o f p roperty ; in particuTarTpersoiial 
effects — merchandise and other chattels — only once belcJre 
(in 1 187, for the Saladin tithey placed under contribution — 
now became a regular source of royal reyenue. The 
isolated precedent of Henry's reign was followed when an 
extraordinarily heayy leyy was required for Richard's 
ransom. The yery heartiness with which England made 
sacrifices to succour the Monarch in his hour of need was 
turned against the tax-payers. Richard ^showed no grati- 
tude ; and, being deyoid of kindly interest in his subjects, 
he argue d that what had been paid once might e qually^ well 
be paid agai n. With exaggerated notions of the reyenue 
to be extracted from England, he sent from abroad demand 
after demand to his oyerworked justiciars for eyer-increas- 
ing sums of money. The chief lessons of the reign are 
connected with this excessiye taxation ; the consequent 
discontent prepared the way for a new grouping of political 
forces under John. 

Some minor lessons may be noted : 

(i) In Richard's absence the odium for his exactions fell 



RICHARD I. AND JOHN 21 

upon his ministers at home, who bore the burden meet 
for his own callous shoulders, while he enjoyed an 
undeserved popularity by reason of his bravery and 
achievements, exaggerated as these were by the halo of 
romance which surrounds a distant hero. Thus may be 
traced some dim foreshadowing of the doctrine of minis- 
terial responsibility, although analogies with modern 
politics must not be pushed too far. 

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

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

The death of Richard on 6th April, 1199, brought with 
it at least one important change; England was no longer 
to be governed by an absentee. JjQhn; endeavoured to 
shake him self free from th e restraintsj2f_power|ii^^ 
and^on duct the workjol ^overnm ent in his own way. The , 
result was an abrupt end to tTie progress~madH^in the I 
previous reign towards ministerial responsibility. The 
odium formerly exhausting itself on the justiciars of 
Richard was now expended on John. While, previously, 
men had sought redress in a change of minister, such 
expectations could no longer deceive. A new element of 
bitterness was added to injuries long resented, and the c 
nobles who felt the pinch of heavy taxation were compelled 
to seek redress in a new direction. All the forces of dis- 
content played openly around the throne. 

As is usual at the opening of a reign, the discontented 
hoped that a change of sovereign would bring relief. 
Heavy taxation had been the result of exceptional circum- 



22 EVENTS LEADING TO MAGNA CARTA 

stances : the new king would revert to the less burdensome 
scale of his father's exactions. Such hopes were quickly 
Q j disappointed. John's needs proved as great as Richard's :- 
th e excessive demands, both for money and for service , - 
coupled with the unp oBularJuses-l o which these were_p ut, 
form the keynote of the reign : they form also _J he back- 
g round of Magna Carta. . 

The reign falls naturally into three periods; the years 
in which John waged a losing war with the King of France 
(i 199-1206), the quarrel with the Pope (1206-13), the great 
struggle with the barons (12 13-16). 

The first seven years were for England comparatively 
uneventful, except in the gradual deepening of disgust with 
the King and all his ways. The continental dominions 
were ripe for losing, and John precipitated the catastrophe 
by injustice and dilatoriness. The ease with which Nor- 
mandy was lost showed something more than the incapacity 
of the King as a ruler and leader — John Softsword as 
contemporary writers call him. It showed that the feudal 
army of Normandy had come to regard the English Sove- 
ireign as an alien. The unwillingness of the English 
nobles to succour John has also its significance. The 
descendants of the men who helped William I. to conquer 
England had now a less vital interest in the land from 
which they came. The estates of many of the original 
Norman baronage, not unequally divided on both sides of 
the Channel, had been split up by inheritance or escheat. 
Some of John's barons were purely English landowners 
with no interest at stake in France. 

By his arbitrary and selfish home policy, the King had 
alienated their sympathies. Some of his father's innova- 
tions had been unpopular fromtlie^first, and be75ame~Tfie 
object s of bitter ^pposition m Jo hn's tactless han ds^ TKe 
whole administralion of justice, along with the entire feudal 
system of land-tenure, with its military obligations, aids 
^and incidents, were degraded into instrume nts of extortion, 
of which details will be given under appropriate chapters 
of the subjoined commentary. English discontent con- 
tributed to the loss of Normandy, and that in turn left 



I 



RICHARD I. AND JOHN 23 



English barons more free to attend to insular matters, and 
so prepared the way for Magna Carta. 

The death of Archbishop Hubert Walter on 13th July, 
1205, deprived John of the services of the most experienced 
statesman in England. It did more, for it marked the 
termination of the long friendship between the English 
Crown and the English Church : its immediate effect was 
to create a vacancy, the filling of which led to a quarrel 
with Rome. 

John failed, as usual, to recognize the merits of abler 
men, and saw in the death of his great Minister merely 
the removal of an unwelcome restraint, and the opening 
to the Crown of a desirable piece of patronage. He pre- 
pared to strain to the utmost his rights in the election of 
a successor to the See of Canterbury, in favour of one of 
his own creatures, John de Grey, already by royal influence 
Bishop of Norwich. Unexpected opposition to his will 
was offered by the canons of the Cathedral Church, who 
determined to appoint their own nominee, without waiting 
either for the King's approval or the co-operation of the 
suffragan bishops of the Province, who, in the three last 
vacancies, had participated in the election, and had invari- 
ably used their influence on behalf of the King's nominee. 
Reginald, the sub-prior, was secretly elected by the monks, 
and hurried abroad to obtain confirmation at Rome before 
the appointment was made public. Reginald's vanity pre- 
vented his keeping his pledge of secrecy, and a rumour 
reached the ear of John, who brought pressure to bear on 
a section of the monks, now frightened at their own 
temerity, and secured de Grey's appointment in a second 
election. The Bishop of Norwich was enthroned at 
Canterbury, and invested by the King with the temporali- 
ties of the See. All parties now sent representatives to 
Rome. This somewhat petty squabble benefited none of 
the original disputants; for Innocent III. was quick to 
seize his opportunity. Both elections were set aside by 
decree of the Papal Curia, in favour of the Pope's own 
nominee, a certain Cardinal, English-born, but hitherto 
little known in England, Stephen Langton by namej^O 



24 EVENTS LEADING TO MAGNA CARTA 

destined to play an important part in the history of the 
land of his birth. 

John refused to view this triumph of papal iarroganc^ 
in the light of a compromise — the view diplomatically 
suggested by Innocent. The King, with the hot blood 
common to his race, and the bad judgment peculiar to 
himself, rushed headlong into a quarrel with Rome which 
he was incapable of carrying to a successful issue. Full 
details of the struggle, the interdicts and excommunications 
hurled by the Pope, and John's measures of retaliation 
against the unfortunate English clergy, need not be here 
discussed; but it should be noted that Innocent, in 121 1, 
released the English people from allegiance to their King.^ 

John was one day to reap the fruits of this quarrel in 
bitter humiliation and in the defeat of his most cherished 
aims ; but, for the moment, the breach with Rome seemed 
to lead to a triumph for the King. The papal encroach- 
ments furnished him with a pretext for confiscating the 
property of the clergy. Thus his Exchequer was amply 
replenished, while he was able for a time to conciliate his 
most inveterate opponents, the northern barons, by remit- 
ting during several years the hated burden of a scutage. 
John had no intention, however, to forego his right to 
resume the practice of annual scutages : on the contrary, 
he executed a measure intended to make them more 
remunerative. This was the Inquest of Service, ordered 
on ist June, 1212.2 

During these years, however, John temporarily relaxed 
the pressure on his feudal tenants. His doing so failed to 
gain back their goodwill, while he broadened the basis of 
future resistance by shifting his oppressions to the clergy 
and through them to the poor. Meanwhile, his power 
was great. Speaking of 12 10, a contemporary chronicler 
declares : " All men bore witness that never since the time 
of Arthur was there a King who was so greatly feared in 
England, in Wales, in Scotland, or in Ireland." ^ 

Some incidents of the autumn of 12 12 require brief 

* Petit-Dutaillis, Louis VII I. ^ 30. ^See Round, Commune of London, 2.tt^ 

^ Histoire des diics^ p. 109. 



RICHARD I. AND JOHN 25 

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

Almost immediately thereafter, two messengers arrived 
simultaneously from Scotland and from Wales with un- 
expected tidings. John's daughter, Joan, and the King of 
Scots, each independently warned him that his English 
barons were prepared to revolt, under shelter of the Pope's 
absolution from their allegiance, and either to slay him or 
betray him to the Welsh. In a panic he disbanded the 
feudal levies ; and, accompanied only by his mercenaries, 
moved slowly back to London. ^ 

Two of the barons, Robert Fitz- Walter, afterwards the 
Marshal of the army which opposed John at Runnymede, 
and Eustace de Vesci, showed their knowledge of John's 
suspicions by withdrawing secretly from his Court and 
taking to flight. The King caused them to be outlawed 
in their absence, and thereafter seized their estates and 
demolished their castles.-'^ 

These events of September, 121 2, rudely shook John 
out of the false sense of security in which he had wrapped 

^R. Wendover, III. 239. 

^W. Coventry, II. 207; R. Wendover, III. 239. 

^ From their possible connection with chapter 39 of Magna Carta, it may be 
worth while to quote the words of Ralph de Coggeshall, Chronicon Anglicanuru, 
p. 165 : '* Rex Eustachium de Vesci et Robertum fiHum Walteri, in comitatibus 
tertio requisitos, cum eorum fautoiibus utlaghiari fecit, castra eorum subvertit,. 
praedia occupavit." 



26 EVENTS LEADING TO MAGNA CARTA 

himself. In the spring of the same year, he had still 
seemed to enjoy the full tide of prosperity ; and he must 
have been a bold prophet who dared, like Peter of Wake- 
field, to foretell the speedy downfall of the King.^ 

John's apparent security was deceptive; he had under- 
estimated the powers arrayed against him. In January, 
1 2 13, by Innocent's command, formal sentence of excom- 
munication was passed on John, and Philip of France was 
appointed as its executor. The chance had come for which 
the barons, particularly the eager spirits of the North, had 
long been waiting. The King, on his part, realised that 
the time had arrived to make his peace with Rome. 

On 13th May, 12 13, John met Pandulf, the papal legate, 
and accepted unconditionally the same demands which 
he had refused contemptuously some months before. Full 
reparation was to be made to the Church. Stephen 
Langton was to be received as archbishop in all honour 
with his banished bishops, friends and kinsmen. All 
church property was to be restored, with compensation 
for damage done. One of the minor conditions of John's 
absolution was the restoration to Eustace de Vesci and 
Robert Fitz- Walter of the estates which, they persuaded 
Innocent, had been forfeited because of their loyalty to 
Rome.2 

Two days later, apparently on his own initiative, he 
resigned the Crowns of England and Ireland, and received 
them again as the Pope's feudatory, promising to perform 
personal homage should occasion allow. John hoped thus 
to be free to avenge himself on his baronial enemies. The 
surrender was embodied in a formal document which bears 
to be made by John, " with the common council of our 
barons." Were these merely words of form? They may 
have been so when first used ; yet two years later the envoys 
of the barons claimed at Rome that the credit (so they now 
represented it) for the whole transaction lay with them. 
In any case, no protest seems to have been raised at the 
time of the surrender. This step, so repugnant to later 

^See Miss Norgate, yi?/^« Lackland^ 170, and authorities there cited. 
"^Jbid., 292-3. 



RICHARD I. AND JOHN 27 

writers, seems not to have been regarded by contemporaries 
as a disgrace. Matthew Paris, indeed, writing in the next 
generation, describes it as " a thing to be detested for all 
time " ; but events had ripened in Matthew's day, and he 
was a keen politician rather than an impartial onlooker.^ 

Stephen Langton, now assured of a welcome to the high 
office into which he had been thrust against John's will, 
landed at Dover and was received by the King at Win- 
chester on 20th July, 1 2 13. John swore on the Gospels to 
cherish and defend Holy Church, to restore the good laws 
of Edward, and to render to all men their rights, repeating 
practically the words of the coronation oath. He agreed 
further to make reparation of all property taken from the 
Church or churchmen. 

V. The Years of Crisis, 1213-15. 

Once more the short-sighted character of John's abilities 
was illustrated : a brief~triumph led to a~deeper fall. For 
a season, however, after he had made his peace with Rome, 
he seemed to enjoy substantial fruits of his diplomacy. 
Philip's threatened invasion had to be abandoned; the 
people renewed their allegiance on the removal of the papal 
sentence; the barons had to make their peace as best 
they could, awaiting a better opportunity to rebel. H 
John had confined himself to home affairs, he might hav^^ 
postponed the final explosion : he could not, however, 
reconcile himself to the loss of the continental heritage of 
his ancestors. His attempts to recover Normandy and "" 
Anjou led to new exactions and new murmurings, while 
their complete failure left him, discredited and penniless, 
at the mercy of the malcontents at home. 

His projected campaign in Poitou required all the levies 
he could raise. More than once John demanded, and his 
barons refused, their feudal service. Many excuses were 
put forward. At first they declined to follow a King who 
had not yet been fully absolved. After 20th July, 12 13, 

^For the complacency with which contemporary opinion viewed John's surrender, 
see Petit Dutaillis, Louis VIII. p. 39. Cf. ibid. p. 181. See also Cardinal 
Manning, Contevip. Rev., December, 1875 ; Adams, Origin Engl. Const., 152 n. 



28 EVENTS LEADING TO MAGNA CARTA 

their new plea was that the tenure on which they held their 
lands did not compel them to serve abroad : they added 
that they were already exhausted by expeditions within 
England. 1 John took this as defiance, and determined, 
with troops at his back (per vim et arma)y to compel 
obedience. Before his preparations were completed, an 
important assembly met at St. Albans on 4th August, to 
make sworn inquest as to the extent of damage inflicted 
on church property during John's quarrel with Rome.^ 
From this Council directions were issued in the King's 
name commanding sheriffs, foresters, and others to observe 
the laws of Henry I. and to abstain from unjust exactions, 
as they valued their lives and limbs. ^ 

On 25th August, after John had set out with his mercen- 
aries to punish his northern magnates, Stephen Langton 
held a meeting with the great men of the south. Many 
bishops, abbots, priors and deans, together with some lay 
magnates of the southern counties, met him at St. Paul's, 
London, ostensibly to determine what use the Archbishop 
should make of his power to grant partial relaxation of the 
interdict, still casting its blight over England. In the 
King's absence, Stephen reminded the magnates that 
John's absolution had been conditional on a promise of - 
good governments^ He showed them Henry I.'s coronation 
charter : " by which, if you desire, you can recall your 
long lost liberties to their pristine state."* All present 
swore to " fight for those liberties, if it were needful, even 
unto death." The Archbishop promised his help, "and a 
confederacy being thus made between them, the conference 
was dissolved." 5 

iR. Coggeshall, p. 167. 

2 For the latest views on this council and the writs of summons, see Prof. A. B, 
White, Am. Hist. Rev., XVII. 12-16. 

»R. Wendover, III. 261-2. 

^R. Wendover, III. 263-6. Blackstone (6^r^a/ Charter, Introduction, p. vi.), 
makes the apposite comment that it seems unlikely that the discovery of a charter 
probably already well known " should be a matter of such novelty and triumph." 

^ R. Wendover, III. 263-6. Ramsay, Angevin Empire, 444, doubts the 
authenticity of this meeting, the incidents of which have a suspicious resemblance to 
what took place some fourteen months later at Bury St. Edmunds : see infra, p. 32. 



THE YEARS OF CRISIS, 1213-15 29 

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

John continued his march to Nottingham, bidding the 
archbishop not to meddle in aifairs of state ; but threats of 
excommunication caused him to consent to substitute legal 
process for violence, and to appoint a day for the trial of 
defaulters before the Curia Regis — a trial which never took 
place.2 John apparently continued his journey as far north 
as Durham, but returned to meet the new papal legate 
Nicholas, to whom he performed the promised homage and 
repeated the act of surrender in St. Paul's on 3rd October. ^ 
Having completed his alliance with Rome, he was confident 
of worsting his enemies in France and England. 

Yet most, if not all, of the magnates were against him, 
and this fact may possibly explain John's issue of writs, 
on gth November, 12 13, inviting four discreet men of each 
county to discuss with him affairs of the Kingdom.* This 
has sometimes been interpreted as a deliberate design to 
broaden the basis of the commune concilium by adding to 
it representatives of classes other than Crown-tenants. & 
Miss Norgate, indeed, lays stress on the fact that these writs 
were issued after the death of the great Justiciar, Geoffrey 
Fitz-Peter, and before any successor had been appointed. 
John, she argues, acted on his own initiative, and is thus 
entitled to the credit of being the first statesman to intro- 
duce representatives of the counties into the national 
assem.bly. Knights who were tenants of mesne lords (Miss 
Norgate says " yeomen ") were invited to act as a counter- 

^ See Appendix. " R. Wendover, III. 262-3. 

^The charter recording this act may be read in Neru Ryvier^ I. 115. It was 
sealed not in perishable wax, but in gold. 

* Sel Chart. 287. ^John Lackland, 195. 



30 EVENTS LEADING TO MAGNA CARTA 

poise to the barons. This innovation is held to have 
anticipated the line of progress afterwards followed by 
de Montfort and Edward I. : compared with it, the often- 
praised provisions of chapter 14 of Magna Carta are 
regarded as antiquated and even reactionary. 

Recent research and criticism, however, have tended to 
throw doubts on the authenticity and purport of these writs, 
and to postpone the introduction of the representative 
principle into the central council to a considerably later 
date. It would be unwise to build far-reaching inferences 
on the supposed participation of county representatives in 
the debates of November, 1213.^ 

In the early spring of 12 14, John considered his home 
troubles ended, and that he was now free to use against 
France the coalition formed by his diplomacy. He went 
abroad early in February, leaving Peter de Roches, the 
unpopular Bishop of Winchester, as Justiciar, to guard his 
interests, in concert with the papal legate.^ Deserted by 
the northern barons, John relied partly on his mercenaries,- 
but chiefly on the Emperor Otto and his other powerful 
allies. Fortune favoured him at first, only to ruin him 
more completely in the end. On 2nd July, 1214, John had 
hastily to abandon the siege of Roches au Moine, leaving 
his baggage to the enemy. The final crash came on 
Sunday, 27th July, when the King of France triumphed 
over John's allies at the decisive battle of Bouvines. On 
1 8th September, John was compelled to sign a five years* 
truce with Philip, abandoning all pretensions to his 
continental dominions. 

He had left even more dangerous enemies at home, to 
watch with trembling eagerness the vicissitudes of his 
fortunes abroad. His earlier successes struck dismay into 
the malcontents in England, apprehensive of the probable 
sequel to his triumphant return home. They waited with 
anxiety, but not in idleness, the culmination of his cam- 
paign, wisely refraining from open rebellion until news 
reached them of his failure or success. Meanwhile, they 
quietly organized their programme of reform and their 

^ See (f.^. Adams, Origin, 340-1. ^ See RoL Pat. I. no, no, <5. 



THE YEARS OF CRISIS, 1213-15 31 

measures of resistance. John's strenuous endeavours to 
exact money and service, while faiHng to fill his Exchequer, 
had ripened dormant hostility into an active confederacy 
organized for resistance. The English barons felt that the 
moment for action had arrived when news came of the 
disaster at Bouvines. 

Even while abroad, John had not relaxed his efforts 
to wring exactions from England. Without consent or 
warning, he had imposed a scutage at the unprecedented 
rate of three marks on the knight's fee. Writs for its 
collection had been issued on 26th May, 12 14, an exception 
being indeed allowed for tenants personally present in the 
King's army in Poitou. The northern barons, who had 
already refused to serve in person, now refused likewise to 
pay the scutage. This repudiation was couched in words, 
peculiarly bold and sweeping ; they denied liability to 
follow the King not merely to Poitou, but to any part of' 
the Continent.^ 

. When John returned, vanquished and humiliated, on 
T5th October, 12 14, he found himself confronted with a 
crisis unique in English history. During his absence, the 
opponents of his misrule had drawn together, formulated 
their grievances, and matured their plans. The embar- 
rassments on the Continent which weakened the King, 
heartened the opposition. The northern barons took the 
lead. Their cup of wrath, which had long been filling, 
overflowed when the scutage of three marks was imposed. 
Within three weeks of his landing, John held parley with 
the malcontents at Bury St. Edmunds (on 4th November). 2 
No compromise was possible : John pressed for payment, 
and the barons refused. 

It seems probable that, after John's retiral, a conference 
of a more private nature was held at which, under cloak 
of attending the Abbey for worship, a conspiracy against 
John was sworn. Roger of Wendover gives a graphic 
account : the magnates came together " as if for prayers ; 
but there was something else in the matter, for after they 
had held much secret discourse, there was brought forth 

^ See W. Coventry, II. 217. ^See Norgate,yM« Lackland, p. 221. 



32 EVENTS LEADING TO MAGNA CARTA 

in their midst the charter of King Henry I., which the 
same barons had received in London . . . from Arch- 
bishop Stephen of Canterbury."! A solemn oath was 
taken to withdraw their fealty (a threat carried into effect 
on 5th May of the following year), and to wage war on the 
King, unless he granted their liberties. A date — soon after 
Christmas — was fixed for making their formal demands. 
Meanwhile they separated to prepare for war. The King 

luXalso realized that a resort to arms was imminent. While 
collecting mercenaries, he tried to sow dissension among 
his opponents : he hoped to buy off the hostility of the 
Church by a charter, issued on 21st November, professing 
to be granted "of the common consent of our barons." 
Its object was to gain the Church's support by granting 
freedom of election to vacant sees. The appointment of 
prelates should henceforth really lie with the canons of the 
various cathedral or conventual churches and monasteries, 
saving, however, to the Crown the right of wardship during 
vacancies. John promised never to deny or delay his 
consent to an election, and conferred powers on the electors, 
if he should do so, to proceed without him. The King 
was bitterly disappointed in his hope that by this bribe 
he would bring over the Church from the barons' side to 
his own. 

John held what must have been an anxious Christmas 
at Worcester, but tarried only for a day, hastening to the 
Temple, London, where the proximity of the Tower gave 
him a feeling of security. There, on 6th January, 1215, a 
, \ deputation from the insurgents met him without disguising 
that their demands were backed by force. These demands, 
they told him, included the confirmation of the laws of 

r Edward, with the liberties set forth in Henry's Charter. 
On the advice of the Archbishop and the Marshal, who 
acted as mediators, John asked a truce till Easter, which 
was granted on his promise that he would then give 
reasonable satisfaction. The Archbishop, the Marshal, 
and the Bishop of Ely were named as the King's sureties. 
John was in desperate straits for money : " the pleas of 

^ R. Wendover, III. 293. Cf. supra 28. 



THE YEARS OF CRISIS, 1213-15 33 

the exchequer and the counties ceased throughout England, 
for nobody was found who would pay tax to the King, or 
obey him in anything."^ On 15th January, he reissued 
the Charter to the Chifrch, and demanded a renewal of 
homage. The sheriffs in each county were instructed to 
administer the oath in a stringent form ; all Englishmen 
must now swear to " stand by him against all men." Mean- 
while, emissaries were dispatched by both sides to Rome. 
Eustace de Vesci, as spokesman of the malcontents, asked 
Innocent, as overlord of England, to compel John to restore 
the ancient liberties, and claimed consideration on the 
ground that John's surrender to the Pope had been made 
under pressure put on the King by them — all to no effect. 
John thought to propitiate the Pope by swearing to go upon 
Crusade, a politic oath which would serve to protect him 
from personal violence, and which afforded him, as is well 
illustrated by several chapters of Magna Carta, a fertile 
excuse for delay in remedying abuses. In April, the 
northern barons met in arms at Stamford, and after Easter\\) 
(when the truce had expired) marched southward to Brack- 
ley, in Northampton. There they were met, on 27th April, 
by the Archbishop and the Marshal, as emissaries from 
the King, to enquire as to their demands. They received 
in reply, and took back with them to John, a certain 
schedule, which, so Roger of Wendover informs us, con- 
sisted for the most part of ancient laws and customs of the 
realm, with an added threat that, if the King did not 
immediately adhibit his seal, the rebels would constrain 
him by seizing his castles, lands, and goods. 2 

John's answer when he read these demands, was em- 
phatic. " Why do not the barons, with these unjust 
exactions, ask my kingdom ? " Then furious, he declared 
with an oath that he would never grant them liberties which 
would make him a slave. 3 

A metrical chronicle * records the threat to depose the 
King, unless he fully amended the law and furnished 

* R. Wendover, III. 301. 

2 R. Wendover, III. 298. For the schedule see infra^ pp. 37-9. 

^ R. Wendover, III. 298. * Chronica de Mailrosy sub anno 1215. 



% 



34 EVENTS LEADING TO MAGNA CARTA 

undoubted guarantees for a lasting peace. On 5th May, 
the barons went through the ceremony of diffidatio, or 
formal renunciation of allegiance, ^ a recognised feudal 
right, and not involving treason if justified by events and 
properly intimated to the overlord.2 They chose as their 
commander, Robert Fitz- Walter, who, as though conduct- 
ing a Crusade, styled himself piously and grandiloquently, 
" Marshal of the army of God and Holy Church." 

The insurgents, still shivering on the brink of civil war, 
delayed to march southwards. Much would depend on the 
attitude of London, with its wealth and central position; 
and John bade high for the support of its citizens. On 9th 
May a new charter^ was granted to the Londoners, who 
now received a long-coveted privilege, the right to elect 
their mayor annually and to remove him at the year's end. 
This marked the culmination of a long series of progressive 
grants in their favour. Previously the mayor had held 
office for life, and Henry Fitz-Aylwin, the earliest holder 
of the office (appointed perhaps in 1191), had died in 12 12. 

Apparently no price was paid for this charter; but John 
doubtless expected in return the grateful support of the 
Londoners, exactly as he had expected the support of 
churchmen when he twice granted a charter in their favour. 
In both instances he was disappointed. Next day he made, 
probably as a measure of delay, an offer of arbitration to 
the barons. In the full tide of military preparations, he 
issued a writ in these words : " Know that we have con- 
ceded to our barons who are against us that we shall not 
take or disseise them or their men, nor go against them 
per vim vel per anna, unless by the law of our land, or by 
the judgment of their peers in curia nostra, until considera- 
tion shall have been had by four whom we shall choose on 
our part and four whom they shall choose on their part, 
and the lord Pope who shall be oversman over them " — 

^ Blackstone, Great Charter, p. xiii, citing Annals of Dunstable (p. 43), says 
they were absolved at Wallingford by a Canon of Durham. 

^ Cf, Adams, Origin, 181 n. ; 306, 312 ; cf. also infra under c. 61. 

^The Charter appears Rot. Chart., p. 207. Cf. under chapter 13 infra, where 
the rights of the Londoners are discussed. 



THE YEARS OF CRISIS, 1213-15 35 

words worthy of careful comparison with cliapter 39 of 
Magna Carta. The offer could not be taken seriously, 
since it left the decision of every vital issue virtually to the 
Pope, whom the barons distrusted.^ 

Another royal writ, of two days later, shows a rapid 
change of policy, doubtless due to the contemptuous 
rejection of arbitration. On 12th May, John ordered the 
sheriffs to do precisely what he had offered not to do. 
They were told to take violent measures against the rebels 
without waiting for a " judgment of peers." Lands, goods, 
and chattels of the King's enemies were to be seized and 
applied to his benefit.^ The barons, rejecting all offers, 
marched by Northampton, Bedford, and Ware, towards the 
capital. London opened its gates on 17th May. 3 The 
example was quickly followed by other towns and by many 
hesitating magnates. The confederates felt strong enough 
to issue letters to all who still adhered to John, bidding 
them forsake him on pain of forfeiture. 

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

1 The writ is given in Rot. Fat., I. 141, and also in N'ew Rynner, I. 128. 

* For writ, see Rot. Claus.j 204. 

^ Some authorities give 24th May, but Nerv Hymer, p. 121, under 17th May, prints 
a writ of John, informing Rowland Blaot of the surrender of London. This was 
followed on 20th May [^N. R., p. 121) by another writ, ordering bailiffs and other 
to molest the Londoners in every possible way. 

nn. 301. 



W 



36 EVENTS LEADING TO MAGNA CARTA 

message which had been guilefully imposed on them." 
The barons, immenso fluctuantes gaudio, fixed as the time 
of meeting, the last day of the extended truce, Monday, 
15th June, at a certain meadow between Staines and 
Windsor, known as Runnymede. 

VI. Runnymede, and after. 

On 15th June, 1215, a five days' conference between 
King and Barons began. On the side of the insurgents 
appeared a great host; on the monarch's, a small band of 
magnates, loyal to the person of the King, but only half- 
hearted, at the best, in his support. Their names may be 
read in the preamble to the Charter : the chief among them, 
Stephen Langton, still nominally neutral, was known to be 
in full sympathy with the rebels. 

Dr. Stubbs,! maintaining that the whole baronage of 
England was implicated in these stirring events, analyses 
its more conspicuous members into four groups: (i) the 
Northumhrani or Norenses of the chroniclers, the first to 
raise the standard of revolt; (2) other barons from various 
parts of England, who had shown themselves ready to 
co-operate with the Northerners — " the great baronial 
families that had been wise enough to cast away the feudal 
aspirations of their forefathers, and the rising houses which 
had sprung from the ministerial nobility " ; (3) the moderate 
party, who followed the lead of London, including even the 
King's half-brother (the Earl of Salisbury), the loyal 
Marshal, Hubert de Burgh, and other Ministers of the 
Crown, whose names may be read in the preamble to the 
Charter; and (4) the tools of John's misgovernment, mostly - 
men of foreign birth, tied to John by interest as well as' 
loyalty, since their differences with the baronial leaders lay 
too deep for reconciliation, a few of whom are branded by 
name in Magna Carta as for ever incapable of holding 
office. These men of desperate fortunes alone remained 
whole-hearted on John's side when the crisis came. 2 

1 ConsL Hist., I. 581-3. 

'^ The names may be read in Stubbs, Ibid, ; and readers in search of biographical 
knowledge are referred to Bemont, Chartes, 39-40. and for fuller, less reliable 
information, to Thomson, Magna Charta, 270-322. 



RUNNYMEDE AND AFTER 37 

When the conference began, the fourth group was in 
command of castle garrisons or of troops actually in the 
field; the third group, a small one, was with John; the 
first and second groups were, in their imposing strength, 
arrayed against him. 

Unfortunately, the vagueness of contemporary accounts 
prevents us from reproducing with certainty the progress 
of negotiations on that eventful 15th of June and the few 
following days. Some inferences, however, may be drawn 
from the words of the completed Charter and of several 
closely related documents. One of these, the Articles of 
the Barons,! is sometimes supposed to be identical in its 
terms with the schedule which had been already presented 
to the King's emissaries at Brackley, on 27th April. It is 
more probable that during seven eventful weeks the original 
demands had been somewhat modified. The schedule of 
April was probably only a rough outline of the Articles 
as we now know them, and these formed in turn the draft 
on which the Charter was based. Articles and Charter are 
alike authenticated by the impress of the King's seal. 
There is thus a strong presumption that an interval elapsed 
between the King's acceptance of the first and the com- 
pletion of the second ; since it would have been absurd to 
seal a superseded draft at the same time as the principal 
instrument. The probability of such an interval must not 
be lost sight of in any attempt to reconstruct the stages of 
negotiations at Runnymede. 

A few undoubted facts form a starting-point on which 
inferences may be based. John's headquarters were at 
Windsor from Monday, 15th June, to the afternoon of 
Tuesday the 23rd. On each of these nine days (with the 
possible exception of the i6th and 17th) he visited Runny- 
mede to confer with the barons. 2 Two crucial stages were 
reached on Monday the 15th (the date borne by Magna 
Carta itself) and on Friday the 19th (the day on which John 

* See Appendix. 

^So far there can be no doubt. Either on Close or Patent Rolls (q.v.) copies of 
writs are preserved dated from Windsor on each of these days, and also one or 
more dated from Runnymede on 15th, i8th, 19th, 20th, 21st, 22nd, and 23rd June. 



38 EVENTS LEADING TO MAGNA CARTA 

in more than one writ stated that peace had been concluded). 

What happened exactly on each of these two days is matter 
of conjecture. It is here maintained, with some confidence, 
[that on Monday the substance of the barons' demands was 
[provisionally accepted and that the Articles were then 

iealed; while on Friday this arrangement was confirmed 

md Magna Carta itself, in several duplicates, was sealed. 
To justify these inferences, a more detailed examination 
'of the evidence available is required. The earliest meeting 
between John and the baronial leaders, all authorities are 
agreed, took place on Monday, 15th June, probably in the 
early morning. The barons undoubtedly brought to the 
conference a list of grievances they were determined to 
redress. On the previous 27th of April the rebels had sent 
a written schedule to the King ; ^ they are not likely to 
have been less fully prepared on 15th June. 

John, on his part, would naturally try a policy of evasions 
and delays ; and, when these were clearly useless, would 
then endeavour to secure modifications of the terms offered. 
These tactics met with no success. His opponents asked 
a plain acceptance of their plainly expressed demands. 
Before nightfall, John, overawed by their firmness and by 
the numbers of the armed force behind them, was con- 
strained to surrender, and signified his acceptance of the 
barons' demands, as contained in a list of 49 Articles 
(apparently drawn out on the spot), by imprinting his great 
seal on the w^ax of its label, where it may still be seen.^ 
Ralph of Coggeshall's brief account gives the contem- 
porary opinion : " By intervention of the archbishop of 
Canterbury, with several of his fellow-bishops and some 
barons, a sort of peace was made." ^ The document bears 
traces of the discussions that preceded it. The first article 
postpones a definition of the customary "relief," leaving 
this to be expressed "in carta." * Articles 45 and 46 (less 
vital to the barons as affecting their allies, not themselves) 
are joined by a rude bracket ; and their suggested modifica- 

1 R. Wendover, III. 298. 

^ In the British Museum. See in/ra under Part V. 

^R. Coggeshall, 172. "* See ////ra, c. 2 



RUNNYMEDE AND AFTER 39 

tion in favour of John is referred to Stephen Langton's 
decision.^ The last article, or forma securitatis, the dregs 
of John's cup of humiliation, is separated by a blank space 
from the rest. 2 

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

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

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

Tuesday, Wednesday and Thursday were probably con- 
sumed in adjusting these matters of detail ; in reducing the 

^ See infra, cc. 58 and 59. Cf. Blackstone, Great Charter, xvii. : ** subjoined in 
a more hasty hand, ... as if added at the instance of the King's commissioners 
upon more mature deliberation." 

^See infra, c. 61. 

^Blackstone, Great Charter, xviii., has given a careful analysis of the points of 
<lifference. 

^E.g. chapters 48 and 52 infra. ^ E.g. chapters 12, 13, 35, and 4I itifra. 



40 EVENTS LEADING TO MAGNA CARTA 

heads of agreement to the more binding form of a feudal 
Charter; and in engrossing several copies for greater 
security. Everything was ready for settlement on Friday^ 
the 19th. On that day, the final concord probably included 
several steps; the nomination by the opposition, with the 
King's acquiescence, of twenty-five barons to act as 
"Executors" under chapter 61,^ the solemn sealing and 
delivery of several originals of the Charter in its final form, 
the taking of an oath by all parties to abide by its provi- 
sions, and the issue of the first batch of writs of instructions 
to the sheriffs. 

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

The statement that Friday, 19th June, was the day on 
which peace was finally concluded rests on unmistakable 
evidence. On 21st June, John wrote from Windsor to 
William of Cantilupe, one of his captains, instructing him 
not to enforce payment of any unpaid balances of " ten- 
series " 3 demanded since the preceding Friday, " on which 
day peace was made between the King and his barons."* 

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

^ The powers and constitutional position of these " executors " are fully discussed 
infra under c. 6l. 

' See Protest in Appendix. 

'Round explains this {Geoffrey cie Mandeville, 414) as "blackmail," i.e^ 
*' money extorted under pretence of protection or defence." 

^See Rot. Clans. ^ p, 225. This writ does not stand alone. In another writ,, 
dated 19th June, John informs his half-brother that he has just concluded peace. 
See also Annals of Dunstable, III. 43, reporting peace made ^^ die Gervassi et 
Protasii" i.e. on 19th June. 



RUNNYMEDE AND AFTER 41 

far from safe to infer from Magna Carta's mention of its 
own date that the seal was actually adhibited on 15th June. 

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

In addition to the various originals of the Charter issued 
under the great seal, chapter 62 provides that authenticated 
copies should be made and certified as correct by " Letters 
Testimonial," under the seals of the two archbishops with 
the legate and the bishops.^ These were intended for the 

* Miss Norgate, John Lackland^ p. 234, in fixing on Monday as the day of final 
concord, relies for evidence on a more than doubtful interpretation of an error in 
the copy of a writ, which in the Patent Rolls bears to be dated i8th June (errone- 
ously as will be shown), addressed to Stephen Harengod, announcing that terms 
of peace had been agreed upon "last Friday." Miss Norgate contends that on 
the Friday preceding the i8th negotiations had not even begun, and is confident 
that the " die Veneris" which occurs three times in the writ is an unaccountable 
error for " die Lunae," Yet, it is unlikely that a scribe writing three days after so 
momentous an event could have mistaken the day of the week. It is infinitely 
more probable that is writing xxiij. he formed the second " x " so carelessly that it 
was mistaken by the enrolling clerk for a *' v." The correct date is thus the 
23rd, and the reference is to Friday the 19th. This presumption becomes a 
certainty by comparison with the words of the writ to William of Cantilupe, 
dated the 21st, and other evidences cited stipra^ p. 40. 

^ No specimen of these Letters is known, but a copy is preserved on folio 234, 
Red Book of Exchequer. See infra under c. 62 and also R. L. Poole, Eng. Hist. 
Rev., XXVIII. 448, . 



42 EVENTS LEADING TO MAGNA CARTA 

sheriffs, whose writs of instructions dated 19th to 27th June, 
to publish the terms of the charters, are preserved in the 
Patent Rolls. Each sheriff vv^as instructed to cause all in 
his bailiwick to make oath, according to the form of the 
Charter, to the twenty-five barons or their attorneys, and 
further, to see to the appointment of twelve knights of the 
county in full County Court, to declare upon oath all evil 
practices as well of sheriffs as of their servants, foresters, 
and others.^ This was held to apply chiefly to the redress 
of forest grievances. 

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

The barons were still unsatisfied as to the King's sin- 
cerity, and demanded further securities. The interesting 
question thus arises, how far they were justified in doubting 
John's intentions. Prof. Petit-Dutaillis, founding mainly 
on the writs dispatched to sheriffs and constables, credits 
John with perfect though perhaps short-lived good faith. 2 
He rightly refuses to believe Wendover's unlikely story of 
John's immediate retiral to the Isle of Wight, and of the 
war preparations he made there in a delirium of fury.^ 
Proof of John's sincerity is sought in the reputed quarrel 
with his Flemish mercenaries, for whom the King's " villain 

^ See Appendix. 

2 He might here have strengthened his argument by referring to the evidences of 
extreme care shown in revising the original Articles of the Barons when translating 
them into charter form. This would have been thrown away, if John intended to 
break faith. On the other hand, this care, equally with the issue of writs, might 
have been a blind. 

' See Louis VIII., p. 57, and also Hardy's Introd. to Litt, Pat.^ XXIX., where 
the story was disproved by dates of writs issued elsewhere. 



RUKNYMEDE AND AFTER 43 

peace " meant that his purse would be closed to them and 
led them to desert his cause. ^ 

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

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

Justified or not, the barons demanded that the City and 
Tower of London should be placed in their hands as pledges 
of good-faith until 15th August, or until the reforms were 
completely carried out. John had to surrender the city to 
the rebels, but the Tower was placed in the neutral custody 
of Stephen Langton. These terms may be read in a 
supplementary treaty headed : " Conventio facta inter 
Regem Angliae et baro7ies ejusdem regniJ^ * John, equally 
distrustful on his side, demanded the security promised at 
the renewal of allegiance; but the barons refused to em- 
body the terms of their homage in a formal Charter. The 
Archbishops of Canterbury and Dublin, with several 
suffragans, appealed to as umpires by the King, recorded 
a protest narrating the barons' breach of faith. ^ 

The same prelates, alarmed apparently lest drastic 
measures of reform should lead to the total abolition of the 
forests, entered a second protest. As mediators, bound to 
see fair-play, they declared in writing that the words of the 
Charter must be read in a restricted sense : customs need- 
ful for preserving the forests should remain in force. ^ The 
provisions referred to were, as is now well known, chapters 

^See Hint, des dues de Norm.y pp. 149- 151. ^ Louis VIII. ^ p. 57. 

^See Norgate, Lackland^ 235, citing M. Paris, II. 61 1. 

* New Rymer, I. 133. See Appendix. It is undated, but must be later than the 
letters of 27ih June to which it alludes. 

'"Rot. Pat., 181. See Appendix. ^ See Rot. Pat. and Ntw Rymer, I. 134. 



44 EVENTS LEADING TO MAGNA CARTA 

47, 48, and 53 of Magna Carta itself, and not, as Roger of 
Wendover states, a separate Poorest Charter. ^ That writer 
was led into error by confusing John's Charter with its 
reissue by his son. Sir William Blackstone was the first 
commentator to correct this mistake. ^ 

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

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

John looked for aid to Rome. Three weeks before grant- 
ing the Charter, he had begun his preparations for its 
repudiation. In a letter of 29th May, addressed to the 
Pope, there may still be read his own explanation of the 
causes of quarrel, and how he urged, with low cunning, 
that the rebels prevented fulfilment of his vow of crusade. 
In conclusion, he expressed his willingness to abide by the 
Pope's decision on all matters at issue. He followed up 
this letter, shortly after 19th June, by dispatching Richard 
de Marais to plead his cause at Rome. 5 Delay was doubly 
in his favour ; since the combination formed against him 
was certain, in a short time, to break up. It was, in the 
happy phrase of Dr. Stubbs,^ a mere "coalition," not an 
" organic union " — a coalition, too, in momentary danger of 
dissolving into its original factors. The barons were with- 
out sufficient sinews of war to carry a protracted struggle 
to a successful issue. 

Soon, both sides to the treaty of peace were preparing 

*See R. Wendover, III. 302-318. 2 Q^eat Charter, p. xxi. 

' M. Paris, 11. 605-6. ^ Hist, des dues de Normandie, 151. 

^NewRynier, I. 129. "Stubbs, Const. Hist., II. 3. 



£> 



RUNNYMEDE AND AFTER 45 

for war. The northern barons, anticipating the King in 
direct breach of the compact, began to fortify their castles, 
and maltreated the royal officials. 1 John, in equally bad 
faith, wrote for foreign allies, whilst he anxiously awaited 
the Pope's answer to his appeal. Langton and the bishops 
still struggled to restore harmony. The i6th July was 
fixed for a new conference. John did not attend; but it 
was probably at this Council that in his absence a papal 
bull was read conferring upon a commission of three — the 
Bishop of Winchester, the Abbot of Reading, and the 
legate Pandulf — full powers to excommunicate all " dis- 
turbers of the King and Kingdom." No names were 
mentioned, but these powers might clearly be used against 
Langton and his friends. The execution of this sentence 
was delayed, in the groundless hope of a compromise, till 
the middle of September, when two of the commissioners, 
Pandulf and Peter of Winchester, demanded that the arch- 
bishop should publish it; and, on his refusal, they forth- 
with suspended him from office (a sentence confirmed by 
the Pope on 4th November) .2 

Stephen left for Rome, and his absence at a critical junc- 
ture proved a national misfortune. The insurgents lost in ^^ 
him, not only their bond of union, but also a wholesome 
restraint. After his departure, a papal bull arrived (in the 
end of September) dated 24th August. This is an impor- «>j 
tant document in which Innocent, in the plainest terms, ^^ 
annuls and abrogates the Charter, after adopting all the '^** 
facts and reproducing all the arguments furnished by the 
King. Beginning with a full description of John's wicked- 
ness and repentance, his surrender of England and Ireland, 
his Crusader's oath, his quarrel with the barons; it goes on 
to describe Magna Carta as the result of a conspiracy, and 
concludes, " We utterly reprobate and condemn any agree- 
ment of this kind, forbidding, under ban of our anathema, 
the foresaid king to presume to observe it, and the barons 
and their accomplices to exact its performance, declaring 
void and entirely abolishing both the Charter itself and the 
obligations and safeguards made, either for its enforcement 

1 Walter of Coventry, 222. 2 gee Petit-Dutaillis, Louis VIIL, 61. 



46 EVENTS LEADING TO MAGNA CARTA 

or in accordance with it, so that they shall have no validity 
at any time whatsoever." ^ 

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

Meanwhile, the points in dispute had been submitted to 
the rude arbitrament of civil war, in which the first notable 
success fell to John, who took Rochester Castle by assault 
on 30th November. The barons had already made over- 
tures to Louis, the French King's son, offering him the 
crown of England. Towards the end of November, seven 
thousand French troops arrived in London, where they 
spent the winter, while John marched from place to place, 
meeting, on the whole, with success, especially in the east 
of England. John's best ally was once more the Pope, 
who did not intend to allow a French Prince to usurp his 
vassal's throne. Gualo was dispatched from Rome to 
Philip, King of France, forbidding his son's invasion, and 
asking protection and assistance for John. Philip, anxious 
to break the force of the Pope's arguments by proving some 
right to intervene, endeavoured to find defects in John's 
title as King of England, and to argue that therefore John 
was not in titulo to grant to the Pope the rights of an over- 
lord; John had been convicted of treason while Richard 
was King, and this involved forfeiture of all rights of suc- 
cession. Thus the Pope's claim of intervention was invalid, 
while Prince Louis justified his own interference by some 
imagined right which, he ingeniously argued, had passed 
to him through the mother of his wife. 

John had not relied solely on papal protection ; but the 

* The bull with the seal attached is in the British Museum (Cotton, Cleopatra E i), 
and is carefully printed by Bemont, Chartes, 41. It may also be read in Rymer 
and Blackstone. 

*The text is given by Rymer. ^See Rymer, and Bemont, Charles, XXV. 



RUNNYMEDE AND AFTER 47 

fleet, collected at Dover to block Louis with his smaller 
vessels in Calais harbour, was wrecked on i8th May, 12 16. 
The French Prince, setting sail on the night of the 20th i) 
May, landed next morning unopposed. John, reduced to 
dependence on mercenaries, dared not risk an engagement. 
Gualo, now in England, on 28th May excommunicated 
Louis by name, and laid London under interdict. On 2nd 
June, the French Prince entered London, received homage 
from the Mayor and others, and took oath to uphold good 
laws and restore invaded rights. ^ It was probably on this 
occasion that Louis confirmed the Charter. ^ Into the 
vicissitudes of the war and the royalist reaction, to which 
the arrogance of the French troops contributed, it is un- 
necessary here to enter. At a critical juncture, when 
fortune still trembled in the balance, John's death at Newark 
Castle, on the morning of 19th October, 12 16, altered the 
situation, rendering possible, and indeed inevitable, a new 
arrangement of parties and forces in England. The heir to f\ 
the throne was an infant, whose advisers found it prudent to v.> 
reissue voluntarily, and to accept as their rule of govern- 
ment, the essential principles of the Charter that had been 
extorted from the unwilling John. 

1 Cronique de Merton, cited Petit-Dutaillis, Lotiis VI II., 514. 
^Ibid., 115. 



PART 11. 
FEUDAL GRIEVANCES AND MAGNA CARTA. 

I. The Immediate Causes of the Crisis. 

Many attempts have been made to show why the storm, 
long brewing, broke at last in 12 14, and culminated pre- 
cisely in June of the following year. Sir William Black- 
stone ^ shows how carefully historians have sought for some 
one specific feature or event, occurring in these years, of 
such moment as by itself to account for the rebellion 
crowned with success at Runnymede. Matthew Paris, he 
tells us, attributes the whole movement to the sudden 
discovery of Henry I.'s Charter, and most of the chroniclers 
assign John's inordinate debauchery as the cause of the 
dissensions, dwelling on his personal misdeeds, real 
and imaginary .2 " Sordida foedatur foedante Johanne, 
gehenna." ^ Blackstone himself suggests a third cause, the 
appointment as Regent in John's absence of the hated alien 
and upstart, Peter des Roches, and his misconduct in that 
office. 

Of John's arrogance and cruelty there is abundant 
testimony ; ^ but the causes from which Magna Carta took 
its rise were more deeply rooted in the past. The very 
success of Henry Plantagenet in restoring order in Eng- 

1 The Great Charter, p. vii. 2 r, Wendover, II. 535. 

' M. Paris, II. 669. Several of the most often-repeated charges of personal 
wrongs inflicted by King John upon the wives and daughters of his barons have 
been in recent years refuted. See Miss Norgate, y<?/^« Lackland, p. 289. 

* See, e.g., the harrowing account of how he starved to death Matilda de Braose 
and her son (Davis, Engl, under Normans, 363). For his conduct in Ireland, see 
Orpen, Ireland, II. 96-105 ; and in Normandy, Powicke, Loss of Normandy, 190-2. 



THE IMMEDIATE CAUSES OF THE CRISIS 49 

land, for effecting which special powers had been allowed 
to him, made the continuance of these powers unnecessary. 
From the day of Henry's death, if not earlier, forces were 
at work which only required to be combined in order to 
control the licence of the Crown. When the battle of order .. 
had^ been won — the complete oyerthrpw of tff^^ rebellion of l^\ 
n 73- 4 may here be taken as the crucial date — the battle of 5f 
liberty had, almost necessarily, to be begun. 

The wonder is that the crisis was so long delayed. 
Events, however, were not ripe for rebellion before John's 
accession, and a favourable occasion did not occur previous 
to 1 2 15. The doctrine of momentum accounts in politics 
for the long continuance of old institutions in a condition 
even of unstable equilibrium ; an entirely rotten system of 
government may remain for ages until at the destined 
moment comes the final shock. John conferred a boon on 
future generations, when by his arrogance and his mis- (V) 
fortunes he combined against him all classes and interests 
in the community. 

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

TJne grievances most bitterly resented may be ranged*^ 
under one or other of two heads-^increase in the weight qf _. 1 ^ 
feudal obligations and mfringement of feudal jurisdictions j *- 
the Crown, while it exacted the fullest measure of services 
legally exigible, curtailed those rights and privileges which 
had originally balanced the obligations. The barons were 
compelled to give more, while they received less. Each of 
these heads calls for separate and detailed treatment.^ 

The grievances of the barons, however, were not the only 
wrongs calling for redress. It is probable that the baronial 
party, if they had acted in isolation, would have failed in 

^ See infra the two sections (II. and III.) immediately following. 

D 






w 



50 FEUDAL GRIEVANCES AND MAGNA CARTA 

1 2 15 as they had already failed in 11 73. If the Crown had 
retained the active sympathy of Church and common 
people, the King might have successfully defied the baron- 
age as his father had done before him. John_h^, on_the 
contrary, br^oadenedjhe basis of^ op_g^osiiiGn_byL_o^pre^^^^^^ 
Ithejnercandle classes and the peasantjy . The order-loving 
itownsmerT had been willing to purchase protection from 
; Henry at the price of heavy taxation : John continued to 
exact the price, but failed to furnish good government in 
return. Far from protecting the humble from oppression, 
he was himself the chief oppressor; and he let loose his 
foreign favourites as deputy oppressors in all the numerous 
offices of sheriff, castellan, and bailiff. Far from using 
the perf ected j iiachinery ., of Exchequer, Curia, and local 
admiHistrRtion in the interests of good government, John 
valued them merely as instruments of extortion and outrage 
— as^ ministers to his lust and greed. 

The lower orders were by no means exempt from the 
increased taxation which proved so galling to the feudal 
tenants .yy When John, durifig his quarrel with Rome, 
repaid each new anathema of the Pope by fresh acts of 
spoliation against the English Church, the sufferings of 
the clergy were shared by the poor. In confiscating the 
goods of monasteries, he destroyed the chief provision for 
poor-relief known to the thirteenth century. The alienation 
of the affections of the great masses of lower-class English- 
men thus effected was never wholly undone, even after the 
reconciliation of John with the Holy See. Notwithstanding 
the completeness and even abjectness of John's surrender, 
he took no special pains to reinstate himself in the good 
graces of the Church at home. Innocent, secure at the 
Lateran, had issued his thunderbolts; and John's counter- 
strokes had fallen, not on him, but on the English clergy. 
The measures taken, in 12 13 and afterwards, to make good 
to these victims some part of the heavy losses sustained, 
were inadequate. 

After 1 2 13, John's alliance with Rome brought new 
dangers in its train. The united action of two autocrats, 
each claiming supreme powers, lay and spiritual respec- 



THE IMMEDIATE CAUSES OF THE CRISIS 51 

tively, threatened to annihilate the freedom of the EngUsh 
nation and the English Church. " The country saw that 
the submission of John to Innocent placed its liberty, 
temporally and spiritually, at his mercy ; and immediately 
demanded safeguards."^ 

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

All things were thus ripe for rebellion, and even for 
united rebellion ; an opportunity only was required. Such 
an opportunity came in a tempting form in 1214; for the. 
King had then lost prestige and power by his failure inK) 
the wars with France. He had lost the friendship of the 
English Church. His unpopularity and vacillating nature 
had been thoroughly demonstrated. Further, he had him- 
self, in 1 191, when plotting against his absent brother 
Richard, successfully ousted the Regent Longchamp from 
office, thus furnishing an example of successfully concerted 
action against the central government. 

The result was that, when the barons began active opera- 
tions, not only had they no opposition to dread from church- 
man or merchant, from yeoman or peasant, but they might 
count on the sympathy of all and the active co-operation of 
many. Further, John's policy of misrule had combined 
against him two interests usually opposed to each other, 
the party of progress and the party of reaction. The 
influence of each of these may be clearly read in various 
chapters of Magna Carta. 

The progressive party consisted mainly of the heads of 
the more recently created baronial houses, men trained in 
the administrative methods of Henry II., who desired that 
his system of government should be properly enforced. 
They demanded that the King should conduct the business 
of Exchequer and Curia according to the rules laid down by 

1 Stubbs, Sg/ea Charters, 270. 



52 FEUDAL GRIEVANCES AND MAGNA CARTA 

I Henry. Routine and order under the new system were 
Iwhat this party desired, and not a return to the unruly days 
of Stephen. Many of the innovations of the great Angevin 
had now been loyally accepted by all classes of the nation ; 
and these accordingly found a permanent resting-place in. 
the provisions of the Charter. In temporary co-operation 
with this party, the usually rival party of reaction was 
willing to combine for the moment against the common 
enemy. There still existed, in John's reign, magnates of 
the old feudal school, who hoped to wrest from the King's 
weakened hand some measure of feudal independence. 
They had accepted such reforms as suited them, but still 
bitterly opposed many others. In particular, they resisted 
the encroachments of the royal courts of law which were 
gradually superseding their private jurisdictions. For the 
moment, John's crafty policy, so well devised to gain 
immediate ends, and so unwise in the light of subsequent 
history, combined these two streams, usually ready to 
thwart each other, into a united opposition to his throne. 
Attacked at the same moment by the votaries of traditional 
usage and by the votaries of reform, by the barons, the 
trading classes, and the clergy, he had no course left him 
but to surrender at discretion. The movement which cul- 
minated at Runnymede may thus best be understood as 
the resultant of a number of different but converging 
forces, some of which were progressive and some re- 
actionary. 

II. The Crown and Feudal Obligations. 

Among the evils calling loudly for redress in England at 
the commencement of the thirteenth century, none spoke 
with more insistent voice than those connected with feudal 
abuses. The refusal of the northern barons to pay the 
scutage demanded on 26th May, 12 14, was the spark that 
fired the mine. The most prominent feature of the Charter 
is its solicitude to define the exact extent of feudal services 
and dues, and so to prevent these from being arbitrarily 
j increased. A detailed knowledge of feudal obligations 
forms a necessary preliminary to the study of Magna Carta. 



THE CROWl^ „.,^ xEUDAL OBLIGATIONS 53 

The precise relations of the Norman Conquest to the 
growth of feudalism in England are complicated, and have 
formed the subject of much controversy. The view now 
generally accepted, and with reason, is that the policy of 
the Conqueror accelerated the process in one direction, but 
retarded it in another. Feudalism, regarded as a system 
of government, had its worst tendencies checked by the 
great upheaval that followed the coming of Duke William ; 
feudalism, considered as a system of land tenure, and 
as a social system, was, on the contrary, formulated and 
developed. It is mainly as a system of land tenure that it 
falls here to be considered. Originally, the relationship, 
between lord and tenant, dependent upon the double owner- 1 
ship of land (of which each was, in a different sense, i 
proprietor), implied obligations on both sides : the lord! 
gave protection, while the tenant owed services of various! 
sorts. It so happened, however, that, with the changes 
wrought by time, the legal obligations of the lord ceased to 
be of much importance, while those of the vassal became 
more and more burdensome. The tenant's services varied 
in kind and in extent with the nature of the tenure. It is 
difficult to frame an exact list of the various tenures formerly 
recognized as distinct in English law : partly because the 
classical authors of different epochs, from Bracton to Black- 
stone, contradict each other; and partly because of the 
obscurity of the process by which these tenures were 
gradually differentiated. Sir William Blackstone,^ after 
explaining the dependent nature of all real property in 
England, thus proceeds : " The thing holden is therefore 
styled a tenement, the possessors thereof tenants, and the ^ 
manner of their possession a tenure." Tenur e thus comes 
to mean the conditions on which a tenantliblds real estate - 
unSer his lord^ 

The ancient classification differs materially from that in 
use at the present day. The modern English lawyer (unless 
of an antiquarian turn of mind) concerns himself only with 
three tenures : freehold (now practically identical with 
socage), copyhold and leasehold. The two last-mentioned 

^ Commentaries, II. 59. 



54 FEUDAL GRIEVANCES AND MAGNA CARTA 

may be rapidly dismissed, as they were of little importance 
in the eyes of Littleton, or of Coke : leasehold embraces 
only temporary interests, such as those of a tenant-at-will 
or for a limited term of years ; while copyhold is the modern 
form of tenure into w^hich the old unfree villeinage has 
slowly ripened. The ancient writers were, on the contrary, 
chiefly concerned with holdings both permanent and free. 
Of these, seven at least may be distinguished in the thir- 
teenth century, all of which have now come to be represented 
by the modern freehold or socage. These seven are 
knight's service, free socage, fee-farm, frankalmoin, grand 
serjeanty, petty serjeanty, and burgage. 

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

(2) Free Socage. The early history of socage, with its 
division into ordinary and privileged, is involved in obscuri- 
ties which do not require to be here unravelled. The 
I services returned for both varieties were not military but 
' agricultural, and their exact nature and amount varied 
considerably. Although not so honourable as chivalry, 
free socage was less burdensome, in respect that two of the 
most irksome of the feudal incidents, wardship and mar- 
riage, did not apply. When knight's service was abolished 
those who had previously held their lands by it, whether 
of the Crown or of a mesne lord, were henceforward to hold 

^See Pollock and Maitland, Hist. Engl. Law, ist ed., I. 218. 



THE CROWN AND FEUDAL OBLIGATIONS 5^ 

in free socage, which thus came to be the normal holding; 
throughout England after the Restoration. ^ 

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

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

(5) Grand serjeanty was a highly honourable tenure, 
sharing the distinctions and the burdensome incidents of 
knight's service, but distinct in this, that the tenant, in; ;;/ 
place of ordinary military duties, performed some specific' ''^'''^<^?^ 
service, such as carrying the King's banner or lance, or 
filled some important office at the coronation. ^ An often- 
quoted example of a serjeanty is that of Sir John Dymoke 

and his family, who have acted as the Sovereign's cham- 
pions at successive coronations from Richard II. to William 
IV., ready to defend the Monarch's title to the throne by 
battle in the ancient form. 

Grand serjeanties were _liable to wardship and marriage. 



as well as to relief , but not to payrnent of scutage. ^ William 

^ See Statute 12 Charles II., c. 24. 2 See Pollock and Maitland, I. 274 n. 

=^ Pollock and Maitland, I. 218. 

* Littleton, II. viii. s. 133. See, on whole subject, Maitland, Co//. Papers^ II. 
205-222. 

^Littleton, II. viii. s. 153. 

^Littleton, II. viii. s. 158. Cf. Round, Kings Serjeanties, 21. 



56 FEUDAL GRIEVANCES AND MAGNA CARTA 

Aguilon, we are told by Madox,i "was charged at the 
Exchequer with several escuages. But when it was found 
by Inquest of twelve Knights of Surrey that he did not hold 
his lands in that county by military tenure, but by serjeanty 
of finding a Cook at the King's coronation to dress victuals 
in the King's kitchen, he was acquitted of the escuages." 

(6) Petty serjeanty may be described in the words of 
Littleton as " where a man holds his lands of our lord the 
king to yield to him yearly a bow or sword, or a dagger or a 
knife ... or to yield such other small things belonging to 
war." 2 The grant of lands on such privileged tenures was 
frequently made in early days on account of some great 
service rendered at a critical juncture to the King's person 
or interests. Serjeanties, Miss Bateson tells us, "were 
neither always military nor always agricultural, but might 
approach very closely the service of knights or the service 
of farmers. . . . The serjeanty of holding the King's head 
when he made a rough passage across the Channel, of 
pulling a rope when his vessel landed, of counting his chess- 
men on Christmas Day, of bringing fuel to his castle, of 
doing his carpentry, of finding his potherbs, of forging his 
irons for his ploughs, of tending his garden, of nursing the 
hounds gored and injured in the hunt, of serving as 
veterinary to his sick falcons, such and many other might 
be the ceremonial or meftial services due from a given 
serjeanty." ^ 

The line between grand and petty serjeanties, like that 
between the greater and smaller baronies of chapter 14 of 
Magna Carta, was at first vaguely drawn. The distinction, 
which Dr. Horace Round considers an illustration of " non- 
technical classification,"* may possibly have originated in 

'^History of Exchequer^ I. 650, c\\!mgPipe Roll oi 18 Henry III. 

2 See Littleton, II. ix. s. 159. With this may be compared the definition given 
in chapter 37 of Magna Carta, where John speaks of land thus held by a vassal as 
'*quam tenet de nobis per servitium reddendi nobis cultellos, vel sagittas vel 
hujusmodi." 

^Mediaeval England, 249-250. A similar tenure exists in Scotland under the 
name of "blench" — wherein the reddendo is elusory, viz., the annual rendering 
of such things as an arrow or a penny or a peppercorn, "if asked only" {si petatur 
tantum). 

* Round, Peerage^ and Pedigree^ 359. 



THE CROWN AND FEUDAL OBLIGATIONS 57 

the Great Charter. At a later date, however, petty ser- 
jeanties, while liable for "relief," escaped the onerous 
incidents of wardship and marriage which grand serjeanties 
shared with lands held in chivalry. 1 The way was thus 
prepared for the ultimate amalgamation of petty serjeanty 
with ordinary socage. 

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

Of these tenures, originally six or seven, frankalmoin and 
grand serjeanty still exist, but rather as ghosts than reali- 
ties; the others have been swallowed up in socage, which 
has thus become identical with " freehold." ^ This triumph 
of socage is the result of a long process : fee-farm, burgage, 
and petty serjeanty, always with features in common, were 
gradually assimilated in almost all respects, while a statute 
(12 Charles II. c. 24) transformed tenure in chivalry also 
into socage. The once humble socage has thus risen high, \ \ 
and now embraces most of the land of England.*' ' i 

T he inte rest .of historians^ centres in tenure by knight-' s 
service, which is the very kernel of the feudal sys tem^ 

1 Littleton, II. viii. s. 158. "^Idia., II. x. s. 162. 

^Pollock and Maitland, I. 218. 

^Littleton and Coke seem almost to countenance two additional tenures, viz., 
scutage or escuage, and castle-guard. Pollock and Maitland consider both as 
alternative names for knight's service. (See I. 251 and I. 257.) The latter is 
discussed zn/ra under c. 29 of Magna Carta. 

^Jenks, Modern Land Law, 14. 

6 It has been well described by Pollock and Maitland (I. 294) as "the great 
residuary tenure." In Scotland the "residuary tenure" is not socage but 
"feu" (resembling the English fee-farm). Holdings in feu are still originated 
by charter, followed by registration (the modern equivalent of infeftment or 
feudal investiture), thus preserving an unbroken connection with the feudal 
conveyancing of the Middle Ages. 



58 FEUDAL GRIEVANCES AND MAGNA CARTA 

Lack of definition in the middle ages was a fruitful source 
of quarrel : for a century and more after the Norman Con- 
quest, the exact amount and nature of military services due 
by a tenant to his lord were vague and undetermined. 
Each Crown tenant (except favoured foundations like Battle 
Abbey) held his lands on condition of furnishing a certain 
number of fully armed and mounted soldiers in the event 
of war. High authorities differ as to when and by whom 
the amount of each vassal's service was fixed. The common 
view (promulgated by Professor Freeman i) attributes the 
allocation of specific service to Ranulf Flambard, the, un- 
scrupulous tool of Rufus. Mr. J. H. Round ^ urges con- 
vincing reasons in support of the older view which attributes 
the innovation to William L Two facts, apparently, are 
certain : that within half a century from the Conquest each 
military tenant was burdened with a definite amount of 
service; and that no written record of the amount was made 
at the time of granting : there were, as yet, no written 
charters, and thus disputes arose. Probably, such grants 
were made in full Curia, and the only record of the condi- 
tions would lie in the memory of the Court. 

Long before Magna Carta, the various obligations had 
been grouped into three classes, which may be arranged in 
order of importance, as services, incidents, and aids. 
Under each of these three heads, disputes continually 
arose.^ The essence of the feudal tie consisted in the lia- 
bility to render "suit and service," that is, to follow the 

^Norman Conquest, V. 377; Hist, of William Rufus, 335-7. 

'^Feudal England, p. 228 et seq. 

^All three forms of feudal obligation — service, incidents, and aids — have long 
been obsolete in England. The statute 12 Charles II. c. 24 swept away the 
feudal incidents along with the feudal system ; centuries before, scutages in lieu 
of military service had become obsolete in the transition from the system of 
feudal finance to that of national finance, effected by the Crown in the thirteenth 
and fourteenth centuries. Feudal aids were also long obsolete, although James I., 
in desperate straits for money, had attempted to revive two of them. In France 
the feudal system, with all its burdensome obligations, remained in full vigour 
until it was abolished in one night by the famous decree of the National Assembly 
of 4th August, 1790. In Scotland, the feudal system of land tenure still exists, 
and certain of its incidents {e.g. reliefs and compositions or fines for alienation) 
are exacted at the present day. 



THE CROWN AND FEUDAL OBLIGATIONS 59 

lord's banner in time of war, and attend his court in time 
of peace. It will be more convenient, however, to reserve 
full consideration of these services until the comparatively 
uncomplicated obligations, known as incidents and aids, 
have been first discussed. 

I. Ff.udal Incidents, In addition to " suit and service," 
the lord reaped, at the expense of his tenants, a number \ 
of c^sual_2rofits, which thus formed irregular supplements 
to his revenue. These profits, accruing, not annually, but 
on the occurrence of exceptional events, came to be known 
as "feudal incidents." They were gradually defined with 
more or less accuracy, and their number may be giv.en as / 
six : reliefs, escheats, wardships, marriages, primer seisins, ' 
and fines for alienation. 1 '~" '*w 

(a) Relief is easily explained. The fee, or feudum, or 
hereditary feudal estate, seems to have been the result of 
a gradual evolution from the old heneficium (or estate held 
for one lifetime), and that again from the older precarium 
(or estate held during the lord's will). Grants, originally 
subject to revocation, gradually attained fixity of tenure for 
the life of the original grantee, and, later on, became trans- 
missible to descendants : the Capitulary of Kiersey (a.d. 
877) is said to be the first authoritative recognition of the 
heir's absolute right to succeed. It would seem that even 
after the Norman Conquest, this rule of hereditary descent 
was not established beyond possibility of dispute.^ The 
h eir's r i^hM :o succeed R emained subject to onej condition, 
namely, the^payment^o Ta^unrTn o^ as a " relie fT" TBis V 
was an acknowledgment that the new tenant's right tol 
ownership was incomplete, until recognized by his superior 1 
— a reminiscence of the earlier precarium from which the 
feudum had developed. The amount remained long un- 
defined, and the lord frequently asked exorbitant sums.^ 

(h) Escheat, it has been said, " signifies the return of 

^Blackstone, Commentaries^ II. 63, arranges these in a different order, and 
mentions as a seventh incident "aids," which are here reserved for separate 
treatment. 

-See Pollock and Maitland, I. 296. 

'See infra^ under c. 2, for the process whereby this evil was redressed. 



> 



M 



6o FEUDAL GRIEVANCES AND MAGNA CARTA 

an estate to a lord, either on failure of issue from the tenant 
or upon account of such tenant's felony." i This lucid 
description conveys a good general conception of escheat; 
but it is inaccurate in at least two respects. It does not 
exhaust the occasions on which escheat occurs, and it errs 
in speaking of " the return " of an estate to a lord, when 
more accurately, that estate had always remained his pro- 
perty, subject only to a burden, which was now removed. 
In theory, the feudal grant of lands was always conditional : 
when the condition was broken, the grant fell, and the lord 
found himself, automatically as it were, once more the 
absolute proprietor, as he had been before the grant was 
made. Thereafter, he held the land in demesne, unless 
he chose to make a new grant to another tenant. The word 
" escheat " was applied indifferently to the lord's right to 
such reversions, and to the actual lands which had reverted. 
In warlike times the right was valuable, for whole families 
might become rapidly extinct. Further, when a landholder 
was convicted of felony, his blood became, in the phrase of 
a later day, attainted, and no one cmald succeed to any 
estate through him. If a man failed in the ordeal of water 
provided by the Assize of Clarendon in 1166 for those 
accused of heinous crimes, his estates escheated to his lord. 
A complication arose when treason was the crime of which 
the tenant had been convicted; for the king, as the 
injured party, had prior rights which excluded those of 
the lord : the lands of traitors were forfeited to the Crown. 
Even over the lands of ordinary felons the king had rights 
,during a period which w^as defined by Magna Carta. 2 
i\ Felony and failure of issue were two main ^ ground s ^f 
y escheat, but not the only ones ; the goods of fugitives from 
justice and of those who had been formally outlawed also 
escheated, and Glanvill adds another case, ^ namely,^_female 
w ards gu ilty of uncha stity (an offe nc e which spoiled the 
king's market). Failum to oljey the roya l_siiinmons~in 
time of war or to pay scutage in lieu thereof might also be 
a ground of forfeiture.* 

^R. Thomson, Magna Charta, p. 236. "^ Infra, c. 32. ^VII. c. 17. 

4 Pollock and Maitland, I. 247 and 250, citing Hist. Abingdon, II. 128. 



THE CROWN AND FEUDAL OBLIGATIONS 6i 

Escheat was thus a valuable right both to the Crown and 
to mesne lords. Its effect was simply this : one link in the 
chain was struck out, and the links on either side were fitted 
together. If the defaulter was a Crown tenant, all his 
f orrner siib-Ttenants. whether freeholders or villeins, moved T 
u p one rung in the feudal ladder and held henceforward^ 
directlv ^f the king, who took over the entire complexus of 
l egal rights previously enjoyed by the defaulte r : rents, 
crops, timber, casual profits, and advowsons oTchurches 
falling vacant; jurisdictions and their profits; services of 
villeins; re liefs, wardsh i^s^^a nd marri age s of freeholde rs, 
as these became exigible. 

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

(c) Wardshi ps are described in the Dialogus de Scac- 
cario as " escheats along with t he heir" (escaeta cum { 
herede)? ThiT'exlffession does not occur elsewhere, but 
it would be impossible to find any description of ward- 
ship which throws more light on its nature and conse- 
quences. \^Qien_t he heir of a deceased tenant was unfit ted ; 
to__ bear arm s by reas on of his tender years, the lands were T ' 
dud ng his minority, wit hout an e ffective ow ner£_ the lor d 30 
treat ed them as te mporarily escheated, entered into posses - , 
sion, dr ew the reve nues, a nd__a pplied them to his own I 
purposes, subject only to the obligatiq n_o f maintaining the j 
heir in a manner suited to his station in life . Considerable 
sums might thus be spent : the Pipe Roll of the seven- 
teenth year of Henry II. shows how out of a total revenue 
of ;^5o 6s. 8d. from the Honour of "Belveeir," ;^i8 5s. 
had been expended on the children of the late tenant.^ 
Wardship came to an end with the full age of the war d, 
that is, in the case of a military tenant, on the completion 
ofji is twenty-first year, " in that of a holder in socage on „.A7 
the^co mpletion^ fthe fifteenth^and i nlne case ot a burge ss" 

^See Infra, c. 43. ^See Hughes' edition, p. 133. 

2 See Dialogus, p. 222 (citing Pipe Roll, p. 27). 



y 



62 FEUDAL GRIEVANCES AND MAGNA CARTA 

when the boy can count money, measure c lothj,_and so 
(y^JlLli---W ardship of fem ales normally ended atjhe_age 
of fourteen, ""beca uselHaTa woman of such jgejnayjiaye 
a husban d_ able to dcT knight's service ." Anheiress who 
dfd not slucceed to the estate until she was fourteen thus 
escaped wardship altogether, but if she became a ward at 
a younger age, the wardship continued till she attained 
sixteen years unless she married earlier .^ 

All the remunerative consequences flowing from escheat 
I flowed also from wardship — rents, casual profits, advow- 
sons, services of villeins, and reliefs. Unlike escheats, 
however, the right of the Crown here was only temporary, 
and Magna Carta sought ^ to provide that the implied 
conditions should be respected by the Crown's bailiffs or 
nominees : the lands must not be wasted or exhausted, 
but restored to the son when he came of age, in as good 
condition as when his father died. 

One important aspect ought to be emphasized : Ward- 
ship affected bishoprics as well as lay baronies, extending 
over the temporalities of a See between the death of one 
prelate and the instalment of his successor. It was to the 
king's interest to keep sees vacant, while his Exchequer 
drew the revenues and casual profits.* This right was 
carefully reserved, even in the comprehensive charter in 
which John granted freedom of election. s 

(d) Marriage as a feudal incident is difficult to define; 
for its meaning changed. Originally it seems to have 
implied little more than the right of a lord to forbid an 

^Glanvill, VII. c. 9. In socage and burgage tenures no wardship was 
recognized ; the guardianship went to the relations of the ward, and not to his 
feudal lord. Complicated, but equitable, rules applied to socage. The maternal 
kindred had the custody, if the lands came from the father's side ; the paternal 
kindred, if from the mother's side (Glanvill, VII. c. Ii). In plain language, the 
boy was not entrusted to those who had an interest in his death. Cf. infra, cc. 
3, 4 and 37. 

2 Littleton, II. iv. s. 103. ^See under c. 5. 

^ What these were may be read in the Pipe Rolls ^ e.g., in that of 14 Henry II. 
when the Bishopric of Lincoln was vacant. 

5 See Sel. Chart., 288. Contrast Stephen's Oxford Charter; Sel. Chart., 
1 20- 1. Cf. supra, p. 32, and infra, under c. i. 



THE CROWN AND FEUDAL OBLIGATIONS 63 

heiress to marry his personal enemy. Such veto was 
reasonable, since the husband of the heiress would become 
the tenant of the lord. The claim to concur in the choice 
of a husband gradually expanded into an absolute right to 
dispose of the lands and person of the female ward : the 
prize might be a bribe to any unscrupulous gentleman of 
fortune who placed his sword at the King's disposal, or it 
might go to the highest bidder. The lady passed as a mere 
adjunct to her own estates. At fourteen she might be sent 
to market, and the only way in which she could protect 
herself against an obnoxious husband was by out-bidding 
her various suitors. 

This right seems, at some uncertain date, to have been 
extended from females to males, and instances of sums 
thus paid occur in the Pipe Rolls. It is difficult at first 
sight to imagine how the Crown found a market for such 
wares as male wards; but probably wealthy fathers were j 
ready to purchase desirable husbands for their daughters. ] 
Thus in 1206 a certain Henry of Redeman paid forty marks 
for the hand and lands of the heir of Roger of Hedon, 
" ad opus filiae suae,''^ while Thomas Basset secured a prize 
in the person of the young heir of Walerand, Earl of 
Warwick, to the use of any one of his daughters. 2 This 
extension to male heirs is usually explained as founded on 
a strained construction of chapter 6 of Magna Carta ; but 
the beginnings of the practice can be traced before 1215.3 
The lords' right to sell their wards was recognized and 
defined by the Statute of Merton, chapter 6. The attempts 
made to remedy some of the most serious abuses may be 
read in Magna Carta.* Hallam ^ considers that "the 
rights, or feudal incidents, of wardship and marriage were 
nearly peculiar to England and Normandy," and that the 
French kings never " turned this attribute of sovereignty 
into a means of revenue." ^ 

(e) Pruner Seisin, which is usually regarded as a separate 

'^Rotuli de oblatis et finibus, p. 354. '^ Rot, Clans., 37, 55. 

'^ Pollock and Maitland, I. 305. * See infra, under chapters 6, 7, and 8. 

^Middle Ages, II. 429. 6 p. 437. 



64 FEUDAL GRIEVANCES AND MAGNA CARTA 

incident, and figures as such in Blackstone's list, is perhaps 
better understood, not as an incident at all, but as a special 
j procedure — effective and summary — whereby the Crown 
i could enforce the four incidents already described. It was 
an exclusive prerogative of the Crown, denied to mesne 
lords. ^ When a Crown tenant died, the King's officers 
had the right to enter into immediate possession, and to 
exclude the heir, who could not touch his father's lands 
without permission from the Crown : he had first to prove 
his title by inquest, give security for any balance of relief 
or other debts, and perform homage.^ It will be readily 
seen what a strong strategic position all this assured to the 
King in any disputes with the heir of a dead vassal. If 
the Exchequer had doubtful claims against the deceased, 
its officials could satisfy themselves before admitting the 
heir to possession. If the heir showed any tendency to 
evade payment of feudal incidents, the Crown could check- 
mate his moves. If the succession was disputed, the King 
might favour the claimant who pleased or paid him most ; 
or, under colour of the dispute, refuse to disgorge the estate 
— holding it in custody analogous to wardship, and mean- 
while drawing the profits. If the son happened to be 
abroad when his father died, he would experience difficulty 
in forcing the Crown to restore the estates. Such was the 
experience of William Fitz-Odo on returning from Scotland 
in 1 20 1 to claim his father's carucate of land in Barn- 
borough. 3 Primer seisin was thus not so much a separate 
incident, as a right peculiar to the Crown to take summary 
measures for the satisfaction of all claims against a deceased 
tenant or his heir. Magna Carta contains no direct refer- 
ence to it, but chapters 37 and 53, providing against the 

^The Bishop of Durham enjoyed it, so it seems to be stated in a charter of 1303 
(Lapsley, Pal. of Durham ^ 133). But this forms no real exception; since the 
Bishop, as an Earl Palatine, enjoyed the regalia of a king. 

2 See Pollock and Maitland, I. 292. From Statute of Marlborough, c. 16, 
primer seisin extended over serjeanty as well as knight's service. Statute of 
Merton, c. 7, provided that a ward might refuse a marriage on undertaking to 
pay the offered price when he came of age. Under c. 8, double the value might 
be exacted for a secret marriage or one in fraud of the lord's right. 

'^ Rotuli de oblatis, p. 114. 



THE CROWN AND FEUDAL OBLIGATIONS 65 

abuse of prerogative wardship, have a bearing on the 
subject.! 

(/) Fines for alienation occupy a place by themselves. 
Unlike the incidents already discussed, they became 
exigible not on the tenant's death, but on his parting with 
his estate during his lifetime, either as a gift or in return 
for a price. How far could he effect this without consent 
of his lord? This was, for many centuries, a subject of 
heated disputes, often settled by compromises, under which 
the new tenant paid a fine to the lord for recognition of his 
title. Such fines are payable at the present day in Scotland 
(under the name of " compositions ") from feus granted 
prior to 1874; ^"^> where no sum has been mentioned in 
the Feu Charter, the law of Scotland defines the amount 
exigible as one year's rent. Magna Carta contains no 
provisions on this subject. Disputes, long and bitter, took 
place in the thirteenth century ; but their history is irrele- 
vant to the present inquiry .2 

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

^Sir Edward Coke {Co^e upon Littleton^ TJ A) is the original source of much 
confusion as to the nature of primer seisin, which he seems to have considered as 
a second and additional relief exacted by the Crown, amounting to the whole rent 
of the first year. The Popes, he further held (erroneously), were imitating this 
practice when they exacted a year's rent from every newly granted benefice under 
name of "first fruits." These errors have been widely followed {e.g. Thomson, 
Magna Ckarta^ p. 416; Taswell Langmead, Const. Hist.^ 50). 

2 See Taswell Langmead, Const. Hist. , pp. 5 1 -2 ; also Pollock and Maitland, II. 326. 

3 IX. c. 8. 

■^An aid to marry the king's eldest sister might be taken, if not previously 
exacted by her father. 

"See infra ^ under chapter 12. 



66 FEUDAL GRIEVANCES AND MAGNA CARTA 

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

The Great Charter, while confirming this tacit com- 
promise, left the amount of aids undefined, merely stipu- 
lating that they should be " reasonable." Examples of 
such payments, both before and after the Charter, are 
readily found in the Exchequer Rolls. Thus, in his four- 
teenth year Henry IL took one mark per knight's fee for 
his daughter's marriage; Henry HL took 20s., and 
Edward L 40s. for a similar purpose. For Richard's 
ransom, 20s. had been exacted from each knight's fee 
(save those owned by men actually serving in the field) ; 
and Henry HL took 40s. in his thirty-eighth year at the 
knighting of his son. The Statute of Westminster L^ 
fixed the " reasonable " aid payable to mesne lords at 20s. 
per knight's fee, and 20s. for every estate in socage of ;^20 
annual value. This rate, it will be observed, is one-fifth 
of the knight's relief.^ The Crown, in thus enforcing 
" reason " on mesne lords, seems never to have intended 
that the same limit should hamper its own dealings with 
Crown tenants, but continued to exact larger sums when- 
ever it thought fit.* Thus £2 per fee was taken in 1346 
at the knighting of the Black Prince. 

A statute of Edward HL^ at last extended to the Crown 
the same measure of " reasonableness " as had been applied 

^Thus, the Abingdon Chronicle (II. 113) speaks of "auxilia quod barones 
michi dederunt"; while Bracton says (Book II. c. 16, s. 8): "Auxilia fiunt de 
gratia et non de jure; cum dependeant ex gratia tenentium, et non ad voluntatem 
dominorum." 

2 3 Edward I. c. 36. ^ Fixed at lOOs. by c. 2 of Magna Carta. 

* Cf. Pollock and Maitland, I. 381-2. One entry in the Memoranda Roll of 42 
Henry III. (cited Madox, I. 615) seems to admit that the Crown could not exact 
more than 20s. ; but in 1258 the baronial opposition would be strong in the 
Exchequer as elsewhere. 

5 25 Ed. III. Stat. S, c. II. 



THE CROWN AND FEUDAL OBLIGATIONS 67 

three-quarters of a century earlier to mesne lords. The 
last instances of the exaction of aids in England occur as 
late as the reign of James I., who, in 1609, demanded one 
for the knighting of the ill-fated Prince Henry, and in 1613 
another for the marriage of his daughter Elizabeth. 

III. Suit and Service. This phrase expresses the 
essential obligations inherent in the very nature of the 
feudal tie. It may be expanded (as regards tenure in 
chivalry) into the duty of attendance at the lord's court, 
whether met for administrative or judicial purposes, or for 
reasons of mere display, and the further duty of military 
service under that lord's banner in the field. Suit had 
ceased to be an urgent question before the reign of John. 
Indeed, the barons were gradually approaching the modern 
conception, which regards it as a privilege rather than a 
burden to attend the comynune concilium — the embryo 
Parliament — of the King. 

It was otherwise with the duties of military service, 
which were rendered every year more unwillingly, partly 
because of the increased frequency of warlike expeditions, 
partly because of the greater cost of campaigning in distant 
lands like Poitou, partly because the English barons were 
completely out of sympathy with John's foreign policy and 
with him. We have seen that the want of definition in 
the Conqueror's reign left to future ages a legacy of strife. 
William and his barons lived in the present; and the 
present did not urgently call for definition. Therefore, the 
duration of the military service, and the conditions on 
which exemption could be claimed, were originally vague ; 
but the return due (servitium dehitum) for each knight's fee 
was gradually fixed by custom at the service of one fully 
armed horseman during forty days. There were still, how- 
ever, innumerable minor points on which disputes might 
arise, and these remained even in 12 15. Indeed, although 
several chapters of the Charter attempted to settle certain 
of these disputed points, others were left as bones of con- 
tention to subsequent reigns : for example, the exact equip- 
ment of a knight ; the liability to serve for more than forty 
days on receiving pay for the extra time ; what exemption 



^ 



68 FEUDAL GRIEVANCES AND MAGNA CARTA 

might be claimed by churchmen ; how far a tenant might 
compromise for actual service by tendering money ; whether 
attendance and money might not both be withheld, if the 
King did not lead his forces in person ; and whether service 
was due for foreign wars equally as for home ones.^ 

Difficulties increased as time went on. The Conqueror's 
followers had estates on both sides of the Channel : his 
wars were theirs. Before John's reign, these simple rela- 
tions had become complicated by two considerations. By 
forfeitures and the division of inheritances, holders of 
English and of Norman fiefs had become distinct. On the 
other hand, the expansion of the dominions of the English 
kings increased the number of their wars, and the expense 
of each expedition. The small wars with Wales and Scot- 
land formed sufficient drain on the resources of English 
magnates without their being summoned to fight in Maine 
or Gascony. 

Were the barons bound to follow John in a forlorn 
attempt, of which they disapproved, to recover his lost fiefs 
from the French Crown ? Or were they bound to support 
him only in his legitimate schemes as King of England? 
Or were they, by way of compromise, liable for services 
in the identical possessions held by William the Conqueror 
at the date when their ancestors first got their fiefs — that is, 
for wars in England and Normandy alone? So early as 
1 198 the Knights of St. Edmunds refused to serve in 
Normandy, while offering to pay scutage.2 The northern 
barons in 12 13 declared that they owed no service what- 
soever out of England.^ This extreme claim put them 
clearly in the wrong, since John could produce precedents 
to the contrary. When, on his return from the unfortunate 
expedition of 12 14, he demanded a scutage from all who 

^ Some of these questions might be answered by the terms of special charters : 
the Hundred Rolls (1279) relate how Hugh de Plesens must go with the King for 
forty days at his own, and thereafter at the King's expense. Rot. Hund.^ II. 
p. 710; cf. for France, Etablissements de St. Louis, I. c. 65. 

^ Jocelin of Bralcelond, 63, cited by Pollock and Maitland, I. 250 n. 

^ See R. Coggeshall, p. 167 ; the barons argued non in hoc ei obncxios esse 
secundum munia terrarum suar'um. 



THE CROWN AND FEUDAL OBLIGATIONS 69 

had not followed him to Poitou, the malcontents declared 
that they had no obligation either to follow him out of the 
kingdom, or to pay a scutage in lieu thereof.^ Pope 
Innocent was probably correct in condemning this contention 
as founded neither on English law nor on feudal custom. 2 
There is some ground for believing that a compromise was 
mooted on the basis that the barons should agree to serve 
in Normandy and Brittany, as well as in England, on being 
exempted from fighting elsewhere abroad.^ 

A definite understanding was n^ver arrived at : chapter 
16 of Magna Carta provided that existing services were not 
to be increased, without defining what these were. This 
was to shelve the difficulty : the dispute went on under 
varying forms and led to an unseemly wrangle between 
Edward I. and his Constable and Marshal, dramatized in 
a classic passage by Walter of Hemingburgh.* Strangely 
enough, the Confirmatio Cartaruvi of 1297, which was, 
in part, the outcome of this later quarrel, omits (like Magna 
Carta itself) ^ all reference to foreign service. The omission 
from both charters of all mention of the chief cause of 
dispute is noteworthy. It must be remembered, however, 
that the question of liability to serve abroad had practically 
resolved itself into that of liability to scutage, and that 
chapters 12 and 14 of the Charter of 12 15 provided an 
adequate check on the levy of all scutages; but this is a 
subject that requires separate and detailed treatment. 

IV. Scutage, The Crown did not always insist on 
personal service, but was frequently willing to accept a 
commutation in the form of a money payment. The sub- 
ject of scutage is one of the most vexed of questions, all 
received opinions of yesterday having to-day been thrown 
into the melting pot. The theories of Stubbs and Freeman, 
once universally accepted, require substantial modifications. 
Four propositions may be stated with some confidence : (i) 

*W. Coventry, II. 217. 

2 See his letter dated ist April, 121 5, in JVew Rymer, I. 128. 

' See "unknown charter" in Appendix. * Chronicon^ IT. 121. 

'See, however, infra under c. 16. 



70 FEUDAL GRIEVANCES AND MAGNA CARTA 

that scutage is an ambiguous term with a vague general 
meaning as well as a narrow technical meaning; (2) that 
the importance of the changes introduced by Henry II. in 
1 156 and 1 159 has been much exaggerated; (3) that scutage 
was always in the option of the King, never of the barons, 
his tenants; and (4) that at a later time, probably during 
John's reign, scutage changed its character, and became, 
partly through altered circumstances and partly by the 
King's deliberate policy, a much more burdensome 
exaction. Each of these propositions requires explana- 
tions : 

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

(2) Professor Freeman, Dr. Stubbs, and their adherents 
held that one of Henry's most important reforms was the 
invention of scutage; that he allowed his Crown tenants 
at their discretion to substitute payments in money for the 
old obligation of personal service in the field — this option 
being granted to ecclesiastics in 1156, and to lay barons in 
1 159. Such a theory had a priori much to recommend it. 
A measure of this nature, while giving volume and elasti- 
city to the resources of the Crown, was calculated subtly to 
undermine the basis of the feudal tie; but Henry, far-seeing 
statesman as he was, could not discard the ideals of his 
own generation : no evidence that he made any sweeping 
change is forthcoming. On the contrary, his grandfather, 
Henry I., is shown by the evidence of extant charters to 
have accepted money in place of the services of knights 
when it suited him (notably from church fiefs in ii09),3 
and there is no evidence (direct or indirect) to show that the 

^ Const. Hist,, I. 632. 2]viadox, I. 619. 

'See Round, Feudal England, 262 ff., 532. 



THE CROWN AND FEUDAL OBLIGATIONS 71 

grandson accepted such commutation when it did not suit 
him. Scutage was thus known in England half a century 
before 11 56 — the traditional date of its introduction. 

(3) Further, neither before nor after the reign of Henry II. 
had the individual baron any option of tendering at his 
discretion money in place of personal service. The con- 
clusions on this subject formulated by Dr. Horace Round 
lie implicitly in the examples from the Pipe Rolls stored 
in the famous work of Madox. From these it would appear 
that the procedure of the Exchequer of the great Angevin 
and his two sons might be explained in some such pro- 
positions as these : 

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

(b) If the individual wished to stay at home he required 
to make a special bargain with the King, paying such sum 
as the King thought fit to demand and sometimes having 
to find a substitute in addition. Exorbitant sums (not 
properly " scutages " at all) might thus be extorted from 
stay-at-homes ne transfretent or pro remanendo ah exercitu 
— phrases which appear in the Pipe Rolls of Richard. A 
Crown vassal in John's twelfth year made fine "that he 
might send two knights to serve for him in the army of 
Ireland." ^ In such cases, each baron made his own 
bargain with the Crown : a scutage, on the contrary, " when 
it ran in the land " was at a uniform rate. 

(c) The tenant-in-chivalry who stayed at home without 
first making his bargain was in much worse plight. He 
had broken faith, and in strict feudal theory had forfeited 
his fief by failing to perform the service for which he held 
it. He was " in mercy," and might be glad to accept such 

1 Madox, I. 658. 



Q 



72 FEUDAL GRIEVANCES AND MAGNA CARTA 

terms of pardon as a gracious king might offer him.^ 
Sometimes, quite small amercements were inflicted : the 
Abbot of Pershore in 11 96 escaped with 40s :^ But the 
Crown sometimes insisted on total forfeiture.^ 

It was the duty of the Barons of Exchequer to determine 
whether lands had thus escheated by default, and also to 
determine the amount of " forfeit " to be taken where con- 
fiscation was not justified or insisted on. The barons 
wished to refer such questions to the judicium pariumA 

(4) Scutage tended continually to become more burden- 
some : 

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

(h) A second method of increasing the yield of scutage 
was to readjust the assessment on w^hich it was based, 
by increasing the number of contributory knights' fees. 
Henry II. in 1166 had invited his unsuspecting barons to 
furnish him with details of the number of knights actually 
enfeoffed on their lands both before and after the death of 
his grandfather; and then treated the latter as a sort of 
unearned increment, the benefit of which should be shared 
by the Crown. The amount of servitium dehitum as pre- 
viously reckoned was increased by the addition of the 
number of knights of the novum feoffamentum, that is, of 

1 Pollock and Maitland, I. 247, noted this distinction under Edward ; it 
existed, as the above-cited instance proves, under John. 

^Pipe Roll of Richard I., cited Madox, I. 663. 

^ Pipe Roll of 12 John, cited ibid. ^ Cf. infra, under cc. 39 and 21. 

5 Interesting details are given by Vinogradoff, English Society, 15 ff. C/1 
Round, Feudal England, 277 fF. 



THE CROWN AND FEUDAL OBLIGATIONS 73 

those created subsequent to the death of Henry I.^ The 
basis of assessment thus fixed in 1166 remained unaltered 
at John's accession. 

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

Henry II. seems to have levied money in name of scutageV 
only when actually at war — on seven occasions in all \ 
during a reign of thirty-five years ; and only once at a rate I 
exceeding 20s., if we may trust Mr. Round,^ and that when 
he was putting forth a special effort against Toulouse. 
Richard I., rapacious as he was, levied, apparently, only 
four scutages during ten years, and the rate of 20s. was 
never exceeded even in the King's hour of urgent need, 
— in 1 194, when the arrears of his ransom had to be paid 
and preparations simultaneously made for war in Nor- 
mandy. 

If it can be shown that John altered established usages 
under every one of these heads, breaking away from all 
restraints, and that too in the teeth of the keen opposition 
of a high-spirited baronage whose members felt that their 
pride and prestige as well as their money-bags were 
attacked, a distinct step is taken towards understanding 
the crisis of 12 15. Such knowledge would explain why a 
storm, long brewing, burst in John's reign, neither sooner 
nor later; and even why some of the disreputable stories 
told by the chroniclers and accepted by Blackstone and 
others, found inventors and believers. 

It is here maintained that John did make changes in all 

^ Round, Feudal England^ 237-9. "^ Feudal England, 277 seq. 



74 FEUDAL GRIEVANCES AND MAGNA CARTA 

of these directions; and, further, that the incidence of 
this increase in feudal burdens was rendered even more 
unendurable by two considerations : — because at his acces- 
sion there remained unpaid (particularly from the fiefs of 
the northern knights) large arrears of the scutages imposed 
in his brother's reign, ^ and because in June, 1212, he drew 
the feudal chain tight by a drastic and galling measure. 

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



First scutage 


of 


reign- 


-I 198-9 — 


-2 


marks 


per 


knight's fee. 


Second 






» 


I 200- I 





)» 




5) 


Third 






5J 


I20I-2 


-7 


5) 




3) 


Fourth 






5) 


1202-3 


2 


>> 




» 


Fifth 






)> 


1203-4 


2 


»J 




)> 


Sixth 






5> 


1204-5 


2 


5J 




5) 


Seventh 






)> 


1205-6 


20S. 




)» 


Eighth 






» 


1209-10 


2 


marks 




» 


Ninth 






5J 


I2IO-II 


2 


5) 




)) 


Tenth 






?J 


I2IO-II 


20S. 




5> 


Eleventli 






J5 


I213-I4 


3 


marks 




)) 



It will be seen that, in his very first year, John took a 
scutage at two marks per scutum. Next year he wisely 
allowed a breathing space; then without a break in each 
of the third, fourth, fifth, sixth and seventh years of his 
reign, scutages were extorted in quick succession at the 
same high rate. Fines, in addition to this scutage of two 
marks, were exacted from those who had not made the 
necessary compromise for personal service in due time.s 

These scutages were collected with increasing difficulty, 
and arrears accumulated; but the spirit of opposition 



^ Norgate, John Lackland, p. 122. 

^Norgate, John Lackland^ p. 123 note, correcting Swereford's lists in the 
Red Book of Exchequer. Further corrections are perhaps necessary : R. Wendover 
III. 173, mentions a scutage of 2J marks in January, 1204. 

^ See Ramsay, Angevin Empire, 390, and authorities there cited. 



THE CROWN AND FEUDAL OBLIGATIONS 75 

increased even more rapidly. In 1206, apparently, the 
breaking point was almost reached.^ Accordingly, in 
that year, some slight relaxation was allowed — the annual 
scutage was reduced from two marks to 20s. John's 
needs, however, were as great as ever, and would prevent 
further concessions, unless something untoward happened. 
Something untoward did happen in the summer of 1207, 
when John quarrelled with the Pope. This postponed his 
quarrel with the baronage. John had, for the time being, 
the whole of the confiscated property of the clergy in his 
clutches. The day of reckoning for this luxury was still 
far distant, and the King could meanwhile enjoy a full 
exchequer without goading his Crown tenants to rebellion. 
For three years no scutage was imposed. In 1209, however, 
financial needs again closed in on John, and a new scutage 
of two marks was levied ; followed in the next year actually 
by two scutages, the first of two marks against Wales, and 
the second of 20s. against Scotland. John had no sense of 
moderation. These three levies, amounting to a total of 
five-and-a-half marks per fee within two years, strained the 
tension almost to breaking point. 

During the two years following (Michaelmas, 121 1, to 
Michaelmas, 12 13) no scutage was imposed. John, how- 
ever, although he thus a second time relaxed the tension, 
had no intention to do so for long. On the contrary, he 
determined to ascertain if scutages could not be made to 
yield more in the future. By writs, dated ist June, 1212, 
he instituted a strict Inquest into the amount of service 
exigible from every estate in England. Commissioners 
were appointed to take the sworn verdicts of local juries as 
to the amount of liability due by each Crown vassal. Mr. 
Round 2 considers that previous writers have unaccountably 
ignored the importance of this measure, " an Inquest worthy 
to be named in future by historians in conjunction with 
those of 1086 and ii66,"3 and describes it as an effort "to 
revive rights of the Crown alleged to have lapsed." John 

^Cf. Norgate, yij^w Lackland^ 125. "^ Comnmne of London, 273-4. 

' Yet, of recent historians, Ramsay {Angevin Empire, 432) treats it briefly, and 
Miss Norgate {John Lackland, 163) barely notices it. 



76 FEUDAL GRIEVANCES AND MAGNA CARTA 

intended by this Inquest, the returns to which were due on 
the 25th June, to prepare the necessary machinery for 
wringing the uttermost penny out of the next scutage when 
occasion for one again arose. That occasion came in 12 14. 

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

Thus insidiously throughout the entire reign, the stream 
of feudal obligations steadily rose until the barons feared 
that nothing of their property would be saved from the 
torrent. The normal rate of scutage had been raised, the- 
frequency of its imposition had been increased, the con- 
ditions of foreign service had become more burdensome, 
and the objects of foreign expeditions more unpopular; 
while attempts were sometimes made to exact both service 
and scutage in the same year. The limit of the barons* 
endurance was reached when, under circumstances peculiarly 
inauspicious, John, in May, 12 14, demanded a new scutage 
at the unprecedented rate of three marks on every fee," 
grounded doubtless on the searching inquest of 12 12.2 

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

^Miss Norgate (123) describes the exactions supplementing the scutages: 
" These scutages were independent of the fines paid by the barons who did not 
accompany the King on his first return to Normandy in 1199, of the money taken 
from the host as a substitute for its service in 1201, of the equipment and payment 
of the 'decimated' knights in 1205, and the fines claimed for all the tenants-in- 
chivalry after the dismissal of the host in the same year, as well as of actual 
services which many of those who had paid the scutage rendered in the campaigns 
of 1202-4 and 1206." 

*See Miss Norgate, John Lackland^ 210, and cf. supra^ 31. For a minor 
grievance connected with scutage and the writ de habendo scutagio, see infra, 
under c. 15. The later history of scutage is outlined in Pollock and Maitland, 
I. 254. Cf. infra, under c. 12. 



ROYAL JUSTICE AND FEUDAL JUSTICE 77 

III. Royal Justice and Feudal Justice. 

A well-known aphorism describes the King as " the sole 
fountain of justice." It would be an anachronism to " 
transport this metaphor into the thirteenth century. In 
John's reign there still were, not one, but many competing ^ 
jurisdictions. It was by no means certain that the King's 
Courts were the proper tribunals to which a wronged 
individual must repair. On the contrary, the great bulk 
of the rural population, the villeins, had no locus standi 
except in the court of the manor to which they belonged; 
while the doors of the royal Courts had been opened to the 
ordinary freeman no earlier than the reign of Henry II. 
Royal justice was still the exception, not the rule. Each 
man must seek redress, in the ordinary case, in his own 
locality. To dispense justice to the nation at large was 
no part of the normal business of a medieval King. vj' 

I. Rival systems of Law Courts, In the thirteenth 
century, there existed not one source of justice, but many .J 
t/Rival courts, eagerly competing to extend their own sphere 
of usefulness and to increase their own fees, existed in a 
bewildering multitude. ^Putting aside for the moment the 
Courts Christian, the Borough Courts, the Forest Courts, 
and all exceptional or peculiar tribunals, there existed three 
great rival systems of jurisdiction which may be named in 
the order in which they became in turn prominent in 
England. 1 

(i) Local or District Courts. Justice was originally a 
local product, administered in rude tribunals which partook 
more or less of a popular character. Each shire had its 
assembly for hearing pleas, known as a " shire-moot " in 
Anglo-Saxon days, and as a " comitatus " after the Norman 
Conquest; while each of the smaller districts subdividing 
the shire, and forming units of administration for purposes 

^ Too absolute a line must not be drawn between the three types of court. In 
one sense all tribunals were, or tended to become, royal courts. The king's 
representatives presided in the "popular courts," and the king received a share 
of the fines levied there; while, in Prof. Vinogradoff's words i^English Society^ 
108), "all the well-known franchises or liberties of the feudal age were chips 
from the block of royal authority." 



78 FEUDAL GRIEVANCES AND MAGNA CARTA 

of taxation, defence, justice, and police, had a moot or 
council of its own, serving as a court of law, to which the 
inhabitants of the villages brought their pleas in the first 
instance. These smaller districts were known as hundreds 
in the south, and as wapentakes (a name of Danish deriva- 
tion) in the north. 

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

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

^John's Charter makes no mention of these courts, although c. 25, forbidding 
increase of the farms of shires, may have a bearing on the subject. Henry's Charters 
of 1 217 and 1225 regulate their times of meeting, Cf. in/ra, Part IV. 

2 This account of the relations of the two sets of courts would receive the support 
of recent writers, such as Maitland and Round, as well as of the older generation, 



ROYAL JUSTICE AND FEUDAL JUSTICE 79 

Practically every holder of land in England came to be 
also the holder of a court for the inhabitants of that land. 
The double meaning of the word " dominus " illustrates the 
double position of the man who was thus both owner and 
lord.i In the struggle between two schemes of justice, the 
tribunals of the feudal magnates triumphed over, but never 
abolished their rivals. The earlier popular courts lived on ; 
but the system of district justice, which had once embraced 
the whole of England, was honeycombed by the growth of 
feudal courts. As each village passed under the domina- 
tion of a lord, the village-moot became a manorial court 
endowed with wider powers and more effective sanctions 
for enforcing them. Further, as complete hundreds fell 
under control of powerful magnates, the courts of these 
hundreds were also transformed into feudal courts : fran- 
chises thus took the place of many of the old popular moots. 
Still, the older system retained part of the disputed ground, 
thanks to the protection of the Crown. Many hundreds 
never bowed to the exclusive domination of any one lord, 
and the courts of the shires were guarded by the Norman ? 
Kings against the encroachment of even the most powerful! 
barons. 

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

In later days (but not till long after Magna Carta), each 
manorial court had three distinct aspects, according to the 

such as Stubbs and Freeman. Mr. Frederic Seebohm may be mentioned as per- 
haps the most weighty upholder of the opposite view, which regards the manorial 
courts as of earlier origin than those of hundred and shire. 

^C/. "landlord." 



8o FEUDAL GRIEVANCES AND MAGNA CARTA 

class of pleas it was called upon to try. Later writers 
distinguish absolutely from each other, the Court Baron, 
settling civil disputes between freeholders of the manor; 
the Court Customary, deciding non-criminal cases among 
the villeins; and the Court Leet, a petty criminal court 
enforcing order and punishing small offences. The powers 
of these courts might vary, and in many districts the juris- 
diction over misdemeanours belonged not to the steward 
of the manor, but to the sheriff in his half-yearly Circuits 
or " Tourns " through the county. In imperfectly feuda- 
lized districts the Tourn of the sheriff performed the same 
functions as the Court Leet did within a franchise. 

(3) Royal Courts. Originally, the King's Court had 
been merely one among many feudal courts — differing in 
degree rather than in kind from those of the great earls 
or barons. The King, as feudal lord, dispensed justice 
among his tenants, just as any baron or freeman dispensed 
justice among his tenants, bond or free. No one dreamed, 
in the time of the Norman Kings, that the Curia Regis 
could undertake the labour of dispensing justice for the 
whole nation. The monarchy had no machinery at com- 
mand for a task which no Anglo-Saxon King, nor even 
■William I., could have undertaken. No attempt in this 
indirection was made until the reign of Henry II., who was 
jplaced in a position of unprecedented power, partly by 
circumstances, but chiefly by his great abilities. Even he, 
born reformer as he was, would never have increased so 
greatly the labours of government, if he had not seen that 
the change would enhance the security of his throne and 
the revenue of his exchequer. 

From an early date, however, the business of the Monarch 
was wider than the business of any other lord. In a dim 
way, too, it must have been apparent from the first, that 
offences against the established order were offences also 
against the King, and that to redress these was the King's 
business competent in the King's Courts. The Crown, 
further, asserted a right to investigate pleas of special 
importance, whether civil or criminal. Still, under William 
and his sons, royal justice had made no deliberate attempt 



ROYAL JUSTICE AND FEUDAL JUSTICE 8i 

to become national justice, or to supersede feudal justice : 
the struggle came with the reforms of Henry II. ^ 

Thus the three great systems of jurisdiction, popular! \ \ 
justice, feudal justice, and royal justice succeeded eachV-^ 
other, on the whole, in the order in which they are here 
named. Yet the sequence is in some ways logical rather 
than chronological. No absolute line can be drawn, show- 
ing where one system ended and the next began. The 
germs of manorial jurisdiction may have been present from 
an early date. Shire-courts and hundred courts alike were — 
continually in danger of falling under the domination of 
powerful local magnates. Yet, the shire-courts were j 
successful in maintaining till the last (thanks to royal 
favour) their independence of the manorial jurisdictions ; I 
while only a proportion of the hundred courts fell into x 
bondage. The royal courts, again, from an early date, 
withdrew causes from the Shire Courts and interfered with 
manorial franchises. The Courts Baron were silently under- 
mined, until they sank into decrepitude without ceasing to 
exist. With these caveats, the three systems may be re- 
garded, in some measure, as following one another in the 
order named : — popular justice, feudal justice, royal justice. 

II. Legal Procedure. The procedure adopted in litiga- 
tion in Anglo-Saxon and Norman times was similar in 
essentials in all three classes of tribunals, and differed 
materially from the practice of courts of law at the present 
day. Some knowledge of the more glaring contrasts 
between ancient and modern procedure will conduce to an 
understanding of several obscure provisions of Magna 
Carta. 

Avoiding technical language, and eliminating special 
procedure peculiar to any one court or country, the prin- 
cipal stages in a litigation in a modern court of law may be 
given briefly as follows : (i) On the complaint of the party 
aggrieved a summons, or writ, is issued by an officer of 

^ The stages in the process, extending from the reign of Henry I. to that of 
Edward I., by which royal justice encroached on feudal justice, may be studied in 
Maitland's preface to Sel. Pleas in Manorial Courts^ pp. liii. ff. See also Pollock 
and Maitland, I. 181-2. 

F 



82 FEUDAL GRIEVANCES AND MAGNA CARTA 

the Court. Proceedings are opened by the command 
addressed to the defendant to appear in Court and answer 
what is alleged against him. 

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

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

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

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

A trial in Anglo-Saxon and early Norman times stands 
in notable contrast to all this in its stages and procedure, 
and even more in the spirit which pervades the whole. 
Thus, the proceedings, from first to last, were purely oral, 
there being no original writ or summons, no written 
pleadings, no record kept of the decision except in the 
memories of those present. The functions of " the Judges " 
were entirely different, and called for no previous training, 
since they were not required either to weigh a mass of 



ROYAL JUSTICE- AND FEUDAL JUSTICE 83 

evidence or to determine the bearing of subtle legal argu- 
ments, but merely to see fairplay, and to decide, according 
to simple rules, well established by centuries of custom, 
by what test the allegations of plaintiff and defendant were 
respectively to stand or fall. Finally, the arrangement 
of the stages of the litigation was entirely different : it is 
with something of a shock that the modern lawyer learns 
that in civil and criminal causes alike " judgment " invari- I 
ably preceded " trial." Reflection will convince him that 1 
each of these words had in the Middle Ages a meaning 
diiferent from what it bears to-day. That this is so can be 
best understood by following the stages of the old procedure. 

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

(2) When both parties had been, after many adjourn- 
ments, actually brought face to face before the Court, the 
statements alike of the claim and of the defence were made 
verbally and in set formulae, the slightest slip or stumble 
in the words of which involyed compIitCfailirfe. TKis"!^""" 



merely one illustration of the tremendously formal and 
technical nature of early legal procedure, a trait common to 
all primitive systems of jurisprudence. 

(3) Before the plaintiff could put the defendant on his 
defence, he required to show some presumption of the 
probability or bona fides of his case. This he usually did 
by producing two friends ready to substantiate his claim, 
known sometimes as his " suit " (Latin secta), or his " fore- 
witnesses." Their testimony had no reference to the parti- 
cular facts of the case; it was not weighed against the 
" proof " afterwards led by the defendant ; its object was 
merely to warrant the Court in demanding " proof " from 
the latter at all.^ 

^ Sometimes no fore-witnesses were required ; for example, where the claim was 
for restoration of stolen cattle, traced by "hue and cry" to defendant's house or byre. 
The presumption was here so strong as to render corroborative evidence unnecessary. 



84 FEUDAL GRIEVANCES AND MAGNA CARTA 

(4) Then came the judgment or "doom," which partook 
in no respect of the nature of the judgment of a modern 
tribunal. It came before the proof or trial, not after it, 
and was therefore called a " medial " judgment. It con- 
sisted in decreeing whether or no, on the strength of the 
previous procedure, the defendant should be put to his 
proof at all; and if so, what " proof " should be demanded. 

Now, the exact test to be appointed by the court varied 
somewhat, according to circumstances, but long-established 
custom had laid down with some exactitude a rule applic- 
able to every case likely to occur ; and, further, the possible 
modes of proof were limited to some four or five at the 
outside. In Anglo-Saxon times, these were mainly com- 
purgation, ordeal, witnesses (whose functions were, how- 
ever, widely different from those of witnesses in modern 
law), and charters. The Norman Conquest introduced for 
the new-comers, a form of proof previously unknown in 
England — " trial by combat " — which tended, for the upper 
classes at least, to supersede all earlier procedures. The 
"proof," of whatever kind it might be, thus appointed by 
the " judges " for the defendant's performance was techni- 
cally known as a " law " (Latin lex) in the sense of a " test " 
i)r "trial" or "task," according to success or failure in 
which his case should stand or fall.i To pronounce a 
" judgment " in this sense was a simple affair, a mere 
formality in the ordinary case, where room for dubiety could 
hardly be admitted: .thus it was possible for "judgment" 
to be delivered by all the members of a feudal court, or all 
the suitors present at the hundred or shire-moot. 

(5) The crucial stage, this " trial " which thus came after 
" judgment," consisted in one party (usually the defendant) 
essaying, on the day appointed, to satisfy the court as to 
the truth of his allegations by performing the task or " law " 
which had been set or " doomed " to him. When this 
consisted in the production of a charter, or* of " transaction 
witnesses " (that is, the testimony of those officials appointed 
in each market-town to certify the conclusion of such 
bargains as the sale of cattle), it commends itself readily to 

^ See in/j-a under cc. 38 and 39, where /ex terrae is discussed. 



ROYAL JUSTICE AND FEUDAL JUSTICE 85 

modern approvaL More frequently it took the form of 
"an oath with oath-helpers," the plaintiff bringing with 
him eleven or twelve of his trusty friends or dependents 
to swear after him the words of a long and cumbrous oath, 
under risk of being punished as perjurers for any slip in 
the formula. Sometimes the decision was referred to the 
intervention of Providence by appealing to the ordeal of 
the red-hot iron or the more dreaded ordeal of water. 
After the Norman Conquest, the trial in all litigations 
between men of high rank, took the form oi duellum or 
legally regulated combat between the parties. The defen- 
dant gained his case if he caused the plaintiff to own him- 
self a " craven," or if he held out till nightfall against the 
plaintiff's attempts to force him to utter that fateful 
word.^ 

This earlier form of " lex " or trial (which is referred to 
in several clauses of Magna Carta) 2 was thus entirely 
different from the modern " trial." It may be said without 
exaggeration that there was no " trial " at all in the current 
meaning of the w^ord — no balancing of the testimony of 
one set of witnesses against another, no open proof and 
cross-examination, no debate on the legal principles 
involved. The ancient " trial " was merely a formal test, 
which was, except in the case of battle, entirely one-sided. 
The phrase " burden of proof " was inapplicable. The 
litigant to whom " a law " was appointed had rather the 
" privilege of proof," and usually won his case — especially 
in compurgation, and even in ordeal if he had arranged 
matters properly with the priest who presided. In one 
sense, the final " trial " was determined by the parties 
themselves, or by one of them ; in another and higher 
sense the facts at issue were left to Providence ; a miracle, 
if necessary, would attest the just claim of the innocent.^ 

' Details may be studied in Neilson's Trial by Combat. 

2 See infra^ cc. 38 and 39, where ordeal and compurgation and other forms of 
lex are further discussed. 

'Cf. Thayer, Evidence, p. 8. "The conception of the trial was that of a 
proceeding between the parties, carried on publicly, under forms which the 
community oversaw." 



86 FEUDAL GRIEVANCES AND MAGNA CARTA 

The essentials of this procedure ^ were the same in 
Norman as in Anglo-Saxon England, and that in all three 
.classes of tribunals — popular, manorial, and royal courts. 
Two innovations the Normans did make; they introduced 
trial by combat and '^ inquisitio." Among the preroga- 
tives of the Norman Dukes was this right to compel the 
sworn evidence of reliable men of any district — men 
specially picked for the purpose, and put on oath before 
answering the questions asked of them. This procedure 
was known as inquisitio (or the seeking of information) 
from the point of view of the government making the 
inquiry, and as recognitio (or the giving of information) 
from the point of view of those supplying it. This device 
was capable of endless extension to new uses in the deft 
hands of the Norman Kings. William employed it in 
compiling Domesday Book; while his successors made it 
the instrument of experiments in the science of taxation. 
It has a double claim to the interest of the constitutional 
historian, because it was one of the influences that helped 
to mould our Parliamentary institutions; and because 
several of the new uses to which it came to be put had 
a close connection with the origin of trial by jury. The 
recognitors, indeed, were simply local jurors in a rude or 
elernentary form. 2 

III. Reforms of Henry II. in Law Courts and Legal 
Procedure. It was reserved for Henry of Anjou to inaugu- 

^ These stages of procedure are fully illustrated by recorded cases. Two of 
these, both from the reign of John, may here be cited, (i) " Hereward, the son 
of William, appeals "Walter, the son of Hugh, of assaulting him, in the King's 
peace, and wounding him in the arm with an iron fork, and giving him another 
wound on the head ; and this he offers to prove on his body as the Court shall 
appoint. And Walter defends all of it by his body. And it is testified by the 
coroners and by the whole county that the same Hereward showed his wounds 
at the proper time, and has made sufficient suit. Therefore it is decreed that 
there should be 'battle.' . . . Let them come armed, a fortnight from St. 
Swithin's day, at Leicester." Sel. Pleas of Crown (Selden Society), p. i8. 
(2) "Walter Trenchebof was said to have handed to Inger of Faldingthorpe the 
knife with which he killed Guy Foliot, and is suspected of it. Let him purge 
himself by water that he did not consent to it. He has failed and is hanged." 
Ibid., p. 75- 

2 The relation of "recognition" to trial by jury is discussed infra, Part HL, 
section 7. 



ROYAL JUSTICE AND FEUDAL JUSTICE ^7 

rate a new era in the relations of the three classes of courts. 
He was the first king deliberately to plan the overthrow 
of the feudal jurisdictions by insidiously undermining 
them, if not yet by open attack. He was the first king 
to reduce the old district courts so thoroughly under the 
control of royal officials as to turn them practically into 
royal courts. He was the first king also to throw open 
the doors of his own courts of law to all-comers, to all • 

freemen, that is to say, for the villein had for centuries 

-, — "^ -J 

still to seek redress in the Court of that very lord of the I 
manor who was too often his oppressor. 1 

In brief, then, Henry's policy was twofold : to convert 
the County Courts completely into Royal Courts, since 
in them royal officials now dispensed royal justice 
according to the same rules as prevailed at the King's 
Curia ; and to _reduce all manor ial_ Qr private Courts to 
insignificance by diverting pleas to his own Curia, and 
leaving the rival tribunals to die gradually from inanition. 
Both branches of this policy met ultimately with success, 
although the event hung in the balance until long after his 
death. The barons, though partially deceived by the 
insidious nature of Henry's reforms, did what they could 
to thwart him; but the current was with the Crown. \ 
Ro yal justic e steadily encroached upon feudal justic^. One 
of the last stands made by the barons has left its traces 
in several chapters of Magna Carta.2 These contain what 

^ The trend of learned opinion for the moment is towards transferring the chief 
share of credit for remedial changes from Henry II. to his grandfather. Prof. 
Haskins, too, has shown reason for holding that the younger Henry found precedents 
in the procedure of his Angevin father as well as of his Norman grandfather [Amer. 
Hist. Rev., VIII. 6i8). There is some evidence also that Henry II. avoided any 
violent breaking with the past. Mr. Davis {Engl, under the Normans^ p. 283) 
shows Henry and his Justice Glanvill acting in a spirit friendly to the private courts. 
It is possible, however, to found erroneous estimates upon such items of evidence. 
The true inventor is the man who adapts for common use what was before excep- 
tional : Henry II. can afford to be judged by this test. To him, rather than to 
Henry I., belongs the credit for revolutionizing the whole system of dispensing 
justice. Cf. G. B. Adams {Origin of Engl. Const., 106-7): "It is in his time 
that these changes are finally made and the new methods become permanently a 
part of the constitution." 

2 E.g. 34 and 39. 



88 FEUDAL GRIEVANCES AND MAGNA CARTA 

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

The short account of that monarch's system of procedure, 
necessary to a comprehension of Magna Carta, falls natur- 
ally into two divisions. 

(i) Criminal Justice, (a) By his Assizes of Clarendon 
and Northampton, Henry reserved important crimes~Tor 
the exclusive consideration of his own judges either on 
circuit or at his court ;- and he demanded entry for these 
judges into all franchises for that purpose. In this part of 
his policy, the King was completely successful; heinous 
crimes were, in the beginning of the thirteenth century,, 
admitted on all hands to be " pleas of the Crown " (that is, 
cases reserved exclusively for royal jjurisdiction) ; and 
Magna Carta made no attempt to reverse this part of the 
Crown's policy: all that was attempted in 12 15 was to 
obtain a promise that these functions, now surrendered to 
the Crown forever, should be discharged by the Crown's 
officials in a proper manner. 

(b) Henry's usual good sense, in this matter stimulated 
by some notable miscarriages of justice, led hipi to question 
the equity of the procedure usually adopted in criminal 
pleas : for private " appeal " (or accusation by the injured 
party or his nearest surviving relative), he substituted, 
whenever possible, communal accusation ; that is, the duty 
of indicting suspected criminals before the King's Justices 
was no longer left to private initiative, but was laid on a 
body of neighbours — the predecessors of the Grand Jury 
of later days. Appeals were discouraged and rules laid 
down restricting the right of accusation. 2 

1 See tn/ra, under cc. 24 and 45. 2 See tn/ra, under chapter 54. 



ROYAL JUSTICE AND FEUDAL JUSTICE 89 

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

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

(a) The Writ System. An unflinching rule was estab-1 
lished that no case could be brought before the royal couri/ 
until a writ had been obtained from chancery. This ha^ 
to be paid for, sometimes at a fixed rate, and sometimes at 
whatever sum the Crown demanded. The whole procedure 
in the royal courts, which followed the issuing of such a 
writ, came to be known as " the writ system." From an 
early date, much attention was directed to the devising of 
forms of writ applicable to various cases. The system, 
somewhat inflexible from the first, had become absolutely: 
rigid long before the close of the thirteenth century. If 
aTproper writ was not selected, or if no such writ had been 
invented, the wronged individual had no remedy in the 
King's courts of common law. Registers of writs were 
drawn up, copied and enlarged, and transmitted from one 
generation to another. 2 

(h) Control of Feudal Courts. Whether devised for that 
purpose or not, this writ system proved a useful instrument 
for diverting the stream of litigation from the barons' courts 
to the curia regis. Henry, if we may credit Glanvill, 
succeeded in establishing the somewhat astounding rule 
that no plea concerning land could be commenced in any 
court without the authority of a royal wTit.^ Even if such 

^ See znj'ra, under chapter 36. ^ See Maitland, Collected Papers^ II., no- 173. 
2 Glanvill xii, 25. For a discussion of the difficulties involved in accepting 
Glanvill see Adams, Origin, 96. 



90 FEUDAL GRIEVANCES AND MAGNA CARTA 

writs were issued as matter of course, the mere need of 
asking for them would supply Henry with information 
doubly valuable in relation to certain other expedients still 
to be explained. That King, applying to his own needs 
procedure known to the Carglingian Kings, secured an 
effective means of evoking suits regarding freehold from 
the seignorial courts to his own. This was done by pro- 
cedure initiated by two types of writs: " writs of righ_t " 
addressed to the holder of a court, bidding liim do justice 
under penalty of interference by the royal court ; and " writs_ 
izaecip^e" addressed to the sheriff, bidding him require the 
holder of a piece of land to hand it over to a claimant or 
explain to the King why he has not done so.^ 

It is probable that even in 12 15 the Crown had not 
fully developed the consequences afterwards seen to be 
involved in the writ of right, properly so called; but 
Henry II. and his sons seem freely to have used the writ 
praecipe in such a manner as to cause their barons to lose 
their jurisdiction — an abuse struck at by chapter 34 of 
Magna Carta. 

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

(d) The Petty Assizes. Special procedure for deter- 
mining titles to land or rights of possession was also 
invented by Henry to supersede trial by battle. These 
Assizes, as they were called, are fully discussed elsewhere. ^ 
While the Grand Assize is not mentioned in Magna Carta, 
its abuse was indirectly struck at by the clause concerning 

^ See Brunner, Schwurgerichte^ 78-80. Details are discussed infray under c. 34. 
^See infra^ under chapters 17 and 24. ^See infra^ under chapter 18. 



ROYAL JUSTICE AND FEUDAL JUSTICE 91 

writs praecipe in chapter 34 : the Petty Assizes, however, — 
would seem to have won favour with the barons, who in 
chapter 18 demanded that regular sessions for hearing them 
should be held four times a year. 

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

Can we wonder that the barons objected to be amerced/:^ 
and judged by their inferiors ? ^ Can we wonder that they/ ^ 
resented the complete though gradual supersession of their 
own profitable jurisdictions by the royal courts ?2 or that 
they looked with suspicion on every new development of 
the royal justice ? Can we wonder that, when they seemed 
to have King John for the moment in their power, they 
demanded redress of these grievances, as well as of those 
connected with increase of feudal burdens ? The cause for 
wonder rather is that their demands were not more sweep- 
ing : the barons, in their hour of triumph, accepted 
cordially one half of the royal innovations. 

The chapters bearing on jurisdiction may be arranged in 
two groups, some reactionary, and some favourable to 
Henry's reforms. On the one hand, no lord of a manor}- 
shall be robbed of his Court by the King evoking before 1 
the royal courts pleas between two freeholders of the lord's 1 
manor; 3 no freeman shall be judged or condemned by the » 

^See zn/ra, under chapters 21 and 39. ^ See infra, under chapter 34. 

3 c. 34. 



92 FEUDAL GRIEVANCES AND MAGNA CARTA 

King's officials, but only before the full body of his peers ; ^ 
earls and barons must be amerced only by their equals. 2 
On the other hand, in prescribing remedies for abuses 
connected with numerous branches of legal procedure, the 
barons accepted by implication this new procedure itself 
and the royal encroachments implied therein. For example, 
the Crown's right to hold " Common Pleas " was impliedly 
admitted, when the barons asked and obtained that these 
should be tried in some certain place (that is, at West- 
minster). 3 Yet these very pleas must have included many 
cases which, prior to Henry II.'s reforms, would have 
been tried in a seignorial court. Again, in regulating the 
petty assizes, chapters 18 and 19 admit the Crown's right 
to hold them. Here, as in chapter 40, the ground of com- 
plaint is not that there is too much royal justice, but rather 
that there is too little of it : henceforth it must be neither 
delayed nor denied. Further, the encroachments made 
by Henry H. in 1166 on the private franchises in the matter 
of criminal jurisdiction are tacitly accepted by the acquies- 
cence in the King's definition of " Pleas of the Crown " 
implied in chapter 24. 

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

^c. See ;Vz/ra, under chapter 39. ^^ 21. ^c. 17. 



PART III. 
MAGNA CARTA : ITS FORM AND CONTENTS. 

I. Its Prototypes: Earlier Charters. 

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

The accuracy of these preconceptions has of late years 
been rudely questioned. The simple formula for solving 
all problems of English constitutional origins by assuming 
an unmixed Anglo-Saxon ancestry, has been challenged 
from more sides than one. Magna Carta, like the Con- 
stitution itself, is of mixed parentage, tracing its descent (lA 
not entirely from Teutonic, but partly from Norman, and 
even Danish and Celtic sources. In the first place, John's 
Charter derives some of its vital clauses from documents 
not couched in charter form. The Constitutions of Claren- 
don of 1 164 and the Forma Procedendi of 1194 are as 
undoubtedly antecedents of Magna Carta as is the Corona- 



94 MAGNA CARTA: ITS FORM AND CONTENTS 

tion Charter of Henry itself. The same is true of many 
grants made by successive kings of England to the Church, 
to London and other cities, and to individual prelates and 
barons. In a sense, the whole previous history of England 
went to the making of Magna Carta. 

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

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

Looking both to the contents and the formalities of 
execution of John's Great Charter, the safer opinion would 

*See Dr. H. L. Cannon's article, Amer. Hist. J^ev.^ XX. 37. Some of his 
theories, however, had been anticipated (see, e.g. Prothero, S. de Montfort, 16), 
and others have not been substantiated. 



Engl. Hist. Rev.y XXVII. 1-8. Dr. R. L. Poole is also an advocate of the 



traditional view: see ibid.^ XXVIII. 444. 



^ Ibid.y XXVII. 4. Mr. Stevenson explains further that "the Anglo-Saxon 
writ was in its origin a letter from the King to a shire-moot, and this characteristic 
clung closely to the Anglo-Norman writ-charter of the twelfth century" (p. 5). 
He also shows how the double-faced pendant seal, in the use of which William 
and his sons followed the Confessor, was not derived by Edward from the 
Normans, who in his day used (like the Kings of France) a seal plaqui. The 
whole article throws much light on the diplomatics of the genesis of Magna 
Carta. 



ITS PROTOTYPES: EARLIER CHARTERS 95 

seem to be, that, like the English Constitution, it is of 
mixed origin, deriving elements from ancestors of more 
races than one ; but that the traditional line of descent from 
the oaths and writs of Anglo-Saxon kings, through the 
Charter of Henry I., is one that cannot be neglected. 

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

This may be analyzed into three promises — peace to x/ I 
God's Church and people; repression of violence in men 
of every rank ; justice and mercy in all judgments. When 
William I., anxious in all things to fortify the legality of 
his title, took the oath in solemn form, he created a prece- -' 
dent of tremendous importance, although he may have 
regarded it at the moment as an empty formality. 2 The 

^See Memorials of St. Dunstan (Rolls Series), p. 355. 

2 Florence of Worcester and the Worcester version of the Chronicle agree that 
the Conqueror took the oath. *'* William of Poitiers and Guy are silent about the 
oath" (Freeman, Norman Conquest, III. 561, note). 



96 MAGNA CARTA: ITS FORM AND CONTENTS 

quasi-elective character of the kingship, the need for - 
coronation by the Church, and this tripartite oath were all 
preserved. 

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

These elements counted for something, but failed to 
restrain sufficiently even an average king ; while they were 
powerless against a strong ruler, like William I. The 
moment at which the Crown might be taken at disadvantage 
was during the interregnum that followed a king's death. 
Thus, William Rufus, anxious to prevent his elder brother 
Robert from making good his claim to the English throne, 
succeeded chiefly through the friendship of Lanfranc. To 
gain this, he was compelled to make promises of good 
government, taking oath in the ancient form. In the same 
reign, began the practice of supplementing verbal promises 
by sealed charters. No such charter was indeed issued 
either by Rufus or his father when they were crowned ; but 
the younger William, at a critical period in his reign, 
granted a short Charter of Liberties, the text of which has 
not come down to us. By a treaty made at Caen in 1091, 
Duke Robert and Rufus agreed that each should constitute 
the other his heir. Thus, at Rufus' death, Henry was, in 
a sense, a usurper, and this made it necessary for him to 
bid high for influential support. ^ It is to this doubtful title 
that Englishmen owe the first Charter of Liberties that has 
come down to us.^ 

Roger of Wendover relates how " as many charters were 
made as there are counties in England, and by the King's 
command they were deposited in the abbeys of every county 

^Stubbs, Const. Hist., I. 328-9, and authorities there cited. 
^ See text in Appendix. For textual criticism see Liebermann, Trans. A\ H. S,, 
VIIT. 21 flf. 



ITS PROTOTYPES: EARLIER CHARTERS 97 

as a memorial," and this is confirmed by an analysis of the 
copies still preserved.^ 

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

It seems doubtful whether the regrettably vague phrase- 
ology of the qualifying clause is intended merely to apply 
the generalities of the church's " freedom " to specific 
instances, or whether it must be taken as a deliberate 
restriction. The prohibition of selling has been read as 
referring to the simoniacal practice of taking money from 
aspirants to episcopal preferments; but more probably it 
was meant to prohibit the alienation of the property of a 
vacant see, a practice that must have been often resorted to, 
if we judge from the efforts at recovery made by successive 
archbishops, notably by Becket. This reading is the more 
probable from the fact that " selling " is here coupled with 

^ See Liebermann, op. cit. On the whole subject of publication of charters by 
Henry I., Stephen and John, see Poole, Engl. Hist. Rev.y XXVIII. 444-453. 
2 Round, Feudal England^ 227. ^ Const. Hist., I. 331. 

G 



98 MAGNA CARTA: ITS FORM AND CONTENTS 

"farming out," an expedient clearly inapplicable to pre- 
latical appointments and referring to the Crown's practice 
of granting leases of the lands of vacant sees for nominal 
annual returns in consideration of a heavy grassum paid 
to the Treasury at the commencement of the lease. The 
rest of the clause is best interpreted as a renunciation of the 
claim to exact either a " relief " from a prelate on his 
appointment or payments in lieu of relief from tenants of 
a vacant see or royal abbey. ^ 

The last clause of the chapter abrogates evil customs 

whereby the kingdom was unjustly oppressed, and then 

i proceeds to define them — a process that occupies the 

V remaining thirteen chapters of the document. Chapter 2 
promises that reliefs of feudal tenants should be " just and 
legitimate." 2 Chapters 3 and 4 guard against abuse of 
the feudal incidents of marriage and wardship.^ Chapter 5 
abolishes as an innovation " the common mintage " (an 
exaction levied by the mints when the coinage was altered),* 
and enjoined the punishment of any one taken with false 
money — provisions finding no echo in John's Charter. 

Chapter 6 remits a number of arrears, reliefs, and 

penalties due to Rufus at his death. Chapter 7 confirms 

I crown-tenants in the right to dispose of their personal 

' f estate by will, and provides for the division of the property 
of intestates among their wives, children, relations, and 
vassals, and for the good of their own souls. ^ Chapter 8 
seems to promise the total abolition of the Norman system 
of forfeitures and amercements (in respect of petty offences, 
as opposed to treasons and crimes) and a return to the 
Anglo-Saxon system of a fixed tariff of bots and wites.^ 

^The use of the word ^' donee" is ambiguous, and might grammatically be 
strained to make the clause a prohibition of wardship, coupled with an endorse- 
ment of relief : the King must take nothing uniz/ the new bishop gets possession. 
Another interpretation would stretch the prohibition to include both wardship and 
relief, and indeed to include the taking of profits of any sort whatever. It has 
also been read as mainly a prohibition against the Crown's permanent appropriation 
of " escheats " falling to a see during a vacancy. See Makower, ConsL Hist, of 
Church, 17. 

2 Cf. infra, under cc. 2 and 3 of 121 5. '^ Cf infra, cc. 3 to 6. 

*SeeStubbs, Early Engl. Hist., 113. ^ggg infra, cc. 26 and 27. 

"See Pollock and Maitland, IT. 512-3. See also infra, c. 20. 



ITS PROTOTYPES: EARLIER CHARTERS 



99 



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

Henry remitted all " murder-fines " incurred before his 
coronation, and promised that those incurred after that date 
should be " justly " paid for " in accordance with the law of 
King Edward " — a clause difficult to reconcile with the 
recognized opinion that the murdrum was unknown in 
England prior to 1066, unless on the supposition that the 
draftsman of the Charter of 11 00 was strangely ignorant 
of the usages of thirty-four years earlier. Perhaps the 
" murder-fine " was not an invention of the Conqueror and 
his sons, but an old English institution put by the Normans 
to new uses. An alternative suggestion may be hazarded 
that here (as perhaps elsewhere in the charter) the reference 
to the good laws of Edward was a mere tag or " common 
form," meant to please his subjects without committing the 
King to anything in particular. 

Chapter 10 contains no concession (unless it be an 
implied renunciation of Rufus' encroachments), but, on the 
contrary, a blunt intimation that Henry, with his barons' 
consent, would retain the forests as his father had had them. 
The barons' consent may be partly explained by their 
expectation to enjoy, as more or less habitually in atten- 
dance upon Henry, a share in the pleasures of the hunt 
of which the King was " master." By chapter II., Henry 
concedes *' propria dono w.eo to knights holding their 
lands per loricas [that is, by knight's service] to have the 
lands of their demesne ploughs quit of all gelds and of 
every [non-military] service, in order that, as being relieved 
by so great a relief, so they might effectually provide them- 






(^PWWwijhB*Si»i'v*'.' 



100 MAGNA CARTA: ITS FORM AND CONTENTS 

selves with horses and arms for my service and the defence 
' of my kingdom." In thus exempting Crown-tenants hold- 
ing by the " hauberk " (that is to say his " barons," in the 
\ wider sense of the word) from Danegeld,' on the distinct 
understanding that they should keep in readiness an 
efficient military equipment, Henry aimed at making hard- 
and-fast an old and fluctuating rule that prohibited Crown- 
tenants from being subjected to a double set of burdens. 
The lands of knights and churchmen, who already served 
the King in other ways, were not expected to contribute 
Danegeld in respect of their home-farms. Holders of 
knight's fees, however, must keep proper weapons and 
armour for themselves and their horses — an obligation 
involving an expenditure constantly increasing with every 
advance in the art of war. The chapter thus recognizes a 
contrast between land subject to military service and land 
subject to geld; "the inland and warland of old Eng- 
lish fiscal arrangements, the dominium and terra geldahilis 
respectively of the Geld Roll of 1084." ^ The fact that 
Henry's Charter dravv^s so sharp a line between the two, 
suggests that the barons may have made this a condition 
of their support of his claims against those of Robert. 
Henry's promise, however, was never strictly carried out : 
the practice continued to fluctuate. Under Flenry II., only 
the barons of the Exchequer and a few privileged religious 
persons enjoyed exemption. ^ Gradually the distinction 
between inland and warland became extinct. 

The remaining clauses of the Charter of Henry I. are 
mainly of a formal character. Chapter 12 declares a firm 
peace for the future throughout his kingdom — thus mark- 
ing the end of the interregnum consequent on his brother's 
death. Chapter 13, on the strength of which wide-reaching 
theories have sometimes been built, seems to be merely an 
amplification of the purely formal chapter that precedes it : 
it restores the law of Edward, with the reforms his father 

^See Prof. VinogradofF, in a review of the first edition of this book, Law 
Quarterly Revircu, XXL, 250-7. See also his Growth of the Manor, 226-7, and 
his Engl, Society, 191. 

^ Dialogus de Scaccario, I. c. II. 



ITS PROTOTYPES: EARLIER CHARTERS loi 

had effected with the barons' consent. The old law was 
vague; the innovations definite and well known. Chapter 
14 proclaims terms and conditions of indemnity, extended 
to those guilty of acts of spoliation during the interregnum 
now brought to an end. 

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

There are three intermediate links in the chain of charters 
connecting those of Henry I. and John, namely, the two 
charters of Stephen and that of Henry 11.^ The circum- 
stances of the accession of the earlier King were peculiar. 
Henry I. had nominated his only child Matilda as his heir : 
his nephew, Stephen, and all the English barons had done 
homage to her as their future liege lady. Stephen, how- 
ever, taking advantage of Matilda's absence and unpopu- 
larity, and of the barons' reluctance to be ruled by a woman, 
made a bold dash for the Crown. From the moment of 
the old King's death, " the Norman barons treated the suc- 

^ See Charter in Appendix. For text and textual criticism, see Liebermnan, 
Trans. R.H.S.^ VIII. 21-48. On whole subject, see Vinogradoff, Law Quart., 
Rev., as above cited. 

2 The discussions on the "unknown charter" {infra, p. 175) would seem how- 
ever, in another sense, to leave these three links out of the chain. 



102 MAGNA CARTA: ITS FORM AND CONTENTS 

cession as an open question " : in these words of Stubbs,^ 
Dr. Round finds 2 the keynote of the reign. Stephen 
was prepared to bid higher for support than Henry had 
felt compelled to do : like William of Orange, five centuries 
later, he agreed to become " king upon conditions." A 
Charter of Liberties and a solemn oath securing " the[^/ 
liberty of the Church " together formed the price of 
Stephen's consecration; and this price was not perhaps 
too high when we remember that " election was a matter 
of opinion, coronation a matter of fact." ^ The process by 
which he built up a title to the Crown culminated in the 
Easter of 1136, when he secured the support of Matilda's 
half-brother Robert, Earl of Gloucester, whose lead was 
quickly followed by influential nobles who, however, per- 
formed homage under an important reservation ; their 
future loyalty would be strictly conditional on the treat- 
ment extended to them by Stephen. 

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

Perhaps its chief provisions are those in favour of the 
Church, supplementing a vague declaration that the Church 
should be " free " by specific promises that the bishops 
should have exclusive jurisdiction and power over ecclesi- 
astics and their goods, with the sole right to superintend 
their distribution after death. Here was a clear confirma- 

»Stubbs, Const. Hist., I. 345. ^Rou^d, Geoffrey de Mandeville, p. i. 

^ Round, Geoffrey de Mandeville, p. 6. Dr. Round, ibid., p. 438, explains that 
this earlier charter of Stephen was supplemented by the verbal promise recorded 
by William of Malmesbury, de libertate reddenda ecclesiae et conservanda. 

* Round, Geoffrey, 22. 

^Stephen was not justified in this last assertion. See Round, Geoffrey, 9. 



ITS PROTOTYPES: EARLIER CHARTERS 103 

tion of the right of the Courts Christian to a monopoly of \ 
all pleas affecting the clergy or their property. Stephen : 
also renounced wardship over church lands during 
vacancies — a surrender never dreamt of by Henry I. or i 
Henry II. Grants to the people at large followed. A 
general clause promising peace and justice was supple- 
mented by specific concessions of more practical value, 
namely, a promise to extirpate all exactions, unjust prac- 
tices, and " miskennings " by sheriffs and others, and to 
observe good, ancient, and just customs in respect of 
murder-fines, pleas, and other causes. 

Strangely enough, there is only one provision specially 
benefiting feudal magnates, the King's renunciation of all 
tracts of land afforested since the time of the two Williams. 
The omission of further feudal concessions must not be 
attributed either to Stephen's strength, or to any spirit of 
moderation or self-sacrifice in the magnates. Each baron 
of sufficient importance had already extorted a private 
charter, more valued than a general provision in favour of 
all and sundry. Such grants often included the right to 
maintain a feudal stronghold, whose owner would enjoy 
a position of practical independence. 

It is instructive to compare these wide promises of 
Stephen with the meagre words of the charter granted 
by Henry of Anjou at or soon after his coronation. ^ 
Henry II. omits all mention of Stephen and his charters, \ 
not because he did not wish to acknowledge a usurper, but • 
because of that usurper's lavish grants to the Church. 
Henry had no intention to confirm "benefit of clergy" ini 
so sweeping a form, or to renounce wardship over vacant|i 
sees. 

To the Church, as to the barons, Henry confirms only 
what his grandfather had already conceded. Even com- 
pared with the charter of Henry I., that of the younger 
Henry is shorter and less explicit — features that justified 
Stephen Langton in his preference for the older document. 
If Henry II. granted a short and grudging charter, neither 
of his sons, at their coronations, granted any charter at all. 

*See Bemont, Ckar/es, 13, and Selecf Charters^ 135. 



(; 



104 MAGNA CARTA: ITS FORM AND CONTENTS 

Reasons for the omission readily suggest tliemselves; the 
Crown had grown strong enough to dispense with this 
unwelcome formality, partly because of the absence of rival 
competitors for the throne, and partly because of the per- 
fection to which the machinery of government had been 
brought. The utmost the Church could extract from 
Richard and John, as the price of their consecration, was 
the renewal of the three vague promises contained in the 
oath, now taken as a pure formality. John, however, was 
not to be allowed to shake himself free from the obligations 
of his oath. Stephen Langton, before absolving him in 
1 2 13, compelled him to swear it anew.^ 

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

II. Magna Carta: its Form and Juridical Nature. 

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

(i) The Modern Point of View. Much ingenuity has 
been expended in the effort to discover which particular 
category of modern jurisprudence most accurately describes 
the Great Charter. Is it an enacted law, or a treaty^ the 
royal answer to a petition ; or a declaration of rights^ Is 
it a simple pact,. bargain, or agreement between contracting 
parties? Or is it a combination of two or more of these? 
Something has been said in favour of almost every possible 

^See supra, p. 27, and Round, En^. Hist. Rev., VIII. 292. 



ITS FORM AND JURIDICAL NATURE 105 

view, perhaps more to the bewilderment "than to the en- 
lightenment of students of history uYiinterested in legal 
subtleties. 

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

Against this view, however, technical informalities may 
be urged. Both the composition of the Council and the 
procedure adopted there, were irregular. No formal writs 
of summons had been issued, and, therefore, the meeting 
was never properly constituted. Further, the whole pro- 
ceedings were tumultuary ; the barons, assembled in mili- 
tary array, compelled the consent of John by show of force. 
On these grounds, modern jurisprudence, if appealed to, 
would reject the claim of the Charter to be enrolled as an 
ordinary statute. It may be argued also that Magna Carta, 
while something less than a law, is also something more. 
A law made by the king in one national assembly might 
be repealed by the king in another: whereas the Great 
Charter was intended by the barons to be unchangeable. 
It was granted to them and their heirs for ever ; and, in 
return, a price had been paid, namely, the renewal of their 
allegiance.^ 

V' Magna Carta has also been described as a treaty. Such 
is the verdict of Dr. Stubbs.^ " The Great Charter, 
although drawn up in the form of a royal grant, was really 
a treaty between the King and his subjects. ... It is the 
collective people who really form the other high contracting 
party in the great capitulation." ^ This view receives some 

^ The (/m'd pro qzio was conditional homage, dependent (as we learn from 
chapter 63) on observance of the Charter. 
'^ Const. Hist., I. 569. 
^ Cf. Prothero SiDion de Montfort, 15; Pike, House of Lords, 312. 



io6 MAGNA CARTA: ITS FORM AND CONTENTS 

support from words contained in chapter 63 of the Charter : 
" Juratum est autem tarn ex parte nostra quam ex parte 
baronum, quod haec omnia supradicta bona fide et sine 
malo ingenio observabuntur." There is, however, a radical 
objection. A treaty is a pubHc act between two contracting 
powers, who must, to meet the requirements of modern 
jurisprudence, be independent States or their accredited 
agents; while John and his opponents were fragments of 
one State, torn asunder by mutual jealousies. 

For other authorities. Magna Carta is a contract, pact* 
or private agreement. M. Emile Boutmy is of this 
opinion : — " Le caract^re de cet acte est aise a d^finir. Ce 
n'est pas pr6cis6ment un traits, puisqu'il n*y a pas ici deux 
souverainetes legitimes ni deux nations en presence; ce 
n'est pas non plus une loi; elle serait entachee d'irregu- 
larit6 et de violence; c'est un compromis ou un pacte."^ 
Thus considered, the proudest act of the national drama 
would take its place in the legal category which includes 
the hire of a waggon or the sale of a load of corn. There 
are, however, objections to this theory also. It is difficult 
to see how the plea of " force," if sufficient (as M. Boutmy 
urges) to render null the enactment of a public law, would 
not be even more effective in reducing a private agreement. 
If Magna Carta has no other basis than the consent of the 
contracting parties, it seems safer to describe it as a public 
treaty than a private pact. 

Other theories also are possible; as, for example, that 
the Great Charter is of the nature of a Declaration of 
Rights, such as have played so prominent a part in France 
and the United States ; while a recent American writer on 
English constitutional development regards it as a code, 
creating a formal constitution for England — in a rude and 
embryonic form, it is true : — " If a constitution has for its 
chief object the prevention of encroachments and the 
harmonizing of governmental institutions, Magna Carta 
answers to that description, at least in part." 2 It would 
be easy to cite compromises between these competing 

1 J^tudes de droit constikitionnel^ 41. 

^Prof. Jesse Macy, English Constitution^ 162. 



ITS FORM AND JURIDICAL NATURE 107 

theories. Thus, a high authority declares that " the Great 
Charter is partly a declaration of rights, partly a treaty 
between Crown and people." 1 

The essential nature of what took place at Runnymede, 
in June, 1215, is plain, when stripped of legal subtleties. 
A bargain was struck, between the King and his rebel 
magnates, that, in return for a renewal of fealty and homage, 
John would grant " to the freemen of England and their 
heirs for ever" the liberties enumerated in sixty-three 
chapters. No one thought of asking whether the trans- 
action thus concluded was a " treaty " or a private " con- 
tract." The terms had to be drawn up in legal form, so as 
to bear record to the exact nature of the provisions, and 
also to the authenticity of John's consent. It was, there- 
fore, reduced to writing, and the resulting document was 
naturally couched in the form invariably used for all irre- 
vocable grants intended to descend from father to son, 
namely, a feudal charter, authenticated by the impression 
of the granter's seal — just as in the case of a grant of land, 
and with many of the clauses appropriate to such a grant.2 

John grants to the freemen of England and their heirs 
certain specified rights and liberties, as though these were 
so many hides of land. 3 The legal effect of such a grant 
is hard to determine ; and insuperable difficulties beset any 
attempt to expound its legal consequences in terms of 
modern law.* In truth, the form and substance of Magna 

^ Anson, Law of the Constitution, I. 14. Cf. Report on Dignity of a Peer, 
I. 63, which makes it both a contract and a treaty. 

2 In strict legal theory the complete investiture of the grantee required that 
"charter" should be followed by "infeftment" or delivery (real or constructive) 
of the subject of the grant. In the case of such intangible things as political 
liberties, the parchment on which the Charter was written would be the natural 
symbol to deliver to the grantees. 

3 See chapter i. The grant which purports to be perpetually binding on John's 
heirs, was in practice treated as requiring confirmation by his son. 

* Prof. Maitland, Township and Borough, p. 76, explains some of the absurdities 
involved : *' Have you ever pondered the form, the scheme, the main idea of 
Magna Charta? If so, your reverence for that sacred text will hardly have 
prevented you from using in the privacy of your own minds some such words as 
* inept ' or ' childish,' etc." 



io8 MAGNA CARTA: ITS FORM AND CONTENTS 

Carta are badly mated. Its substance consists of a number 
of legal enactments and political and civil rights ; its form 
is borrowed from the feudal lawyer's book of styles for 
conferring a title to landed estate. i 

The results of this part of the inquiry seem, then, to be 

mainly negative. It is misleading to describe phenomena 

of the thirteenth century in modern phraseology which 

would have been unintelligible to contemporaries. Yet, 

I if it is necessary to make the attempt, Magna Carta may 

! perhaps be regarded as an agreement partaking of the 

(natures alike of a statute and a royal grant, of a public- 
treaty and a private contract, yet identical with no one of 
. these, but (in any view) enacting or proclaiming a number 
'.of rules and customs as binding in England, and reducing 
them to v/riting in the unsuitable form of a feudal charter 
'.granted by King John to the freemen of England and their 
heirs. 2 

(2) The Contemporary Standpoint. It is perhaps more 
profitable to enquire under what category of medieval 
jurisprudence Magna Carta would have fallen, if its con- 
temporaries had consciously attempted its classification. 
In Dr. Vinogradoff 's phrase : " The best way to solve 
these problems is perhaps to locate our document in 
the pigeon-holes of medieval and not of modern rubri- 
cation." ^ 

Answering his own question, he proceeds to range it, 
partly as a unilateral grant by John to his subjects and 
partly as of the nature of the medieval expedient known 
to the continent of Europe as an " establishment " (stabili- 
mentum or etahlissement). No exact definition of a stabili- 
mentum need be expected from an age accustomed to a 
vague use of words ; but its essence seems to have been 

^Pollock and Maitland, I. 150, emphasize this disparity. **In form a donation, 
a grant of franchises freely made by the king, in reality a treaty extorted from him 
by the confederate estates of the realm, ... it is also a long and miscellaneous 
code of laws." Cf. also Idi'd., I. 658. 

— 2 See Prof. Adams [Origin, 212), who has a suggestive note on "the diplomatic 
form of the Great Charter. " 

^ Law Quarterly Review, XXI. 250-7. 



ITS FORM AND JURIDICAL NATURE 109 

a legislative act, more or less of an institutional and excep- 
tional nature, affecting the general welfare of the country, 
and thus requiring collective action by all classes or estates. 
The elements of authority dispersed among the various 
participants in legislative or sovereign power had to be 
concentrated round the King, somewhat as the consent of 
all first-class States has to be obtained at the present day 
for effecting a change in the rules of International Law 
observed by civilized nations.^ 

Legislative acts similar to the etablissements of Capetian 
Kings were not unknown in England. The main purport 
of the Statute of York (1322), for instance, according to 
its latest interpreter,^ would seem to be that consent of 
"the community" (or "commonalty," as it is usually 
rendered), as well as of the prelates, earls and barons, 
should be needed for any change of the nature of an 
"establishment," which thus means an alteration in the 
framework of government. Magna Carta contemplated 
in chapter 61 an institutional innovation, parallels to which 
may be found in the more or less oligarchical schemes of 
1244, 1258, 1264 and 131 1. The historical importance of 
such restrictions upon the method of legislation required 
for changing the framework of government, lies in their 
bearing on the development of a system of Estates and of 
the future Parliament of the three Estates. ^ 

III. Magna Carta: its Contents and Characteristics. 

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

As to externals, the want of orderly, logical arrangement 
has often been noted. As John Reeves * says: "The 

^ Cf. Vinogradoff, o/>. czL, who cites an example from a French ordinance 
of 1223. 

2G. Lapsley, jSn^. Hist Rev. XXVII., p. ii8. 

3 Cf. Vinogradoff, op. cit. « History of Law, I. 266. 



no MAGNA CARTA: ITS FORM AND CONTENTS 

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

Three closely connected characteristics of the document,' 
as a whole, will be brought out in the succeeding analysis : 
Magna Carta is feudal, contractual, and (in parts, at least) 
reactionary in tone. Professor Adams of Yale, giving 
voice to opinions now widely admitted by historians, 
emphasizes the crucial place occupied by " the^ feudal 
contract " as the basis alike of Magna Carta and of the 
medieval English constitutiorT; * and maintains that, from 
the narrower point of view of 12 15, the essence of John's 
Charter "in spirit, in method, and in principle," was 
reaction. 5 

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

^Harcourt, Steward, 215. ^^^ja^ns, Origin, 250. 

3 Adams, ibid., 256. ^Ibid., 150, 169, 203, 232. 

^ Ibid., 249. 



I 



ITS CONTENTS AND CHARACTERISTICS iii 

I. Provisions classified according to the prerogatives 
affected. 

Dr. Gneist ^ arranges the chapters in five groups accord- 
ing as they place restraints (i) on the military power of the \r^ 
Crown, (2) on its judicial power, (3) on its police power, (4) C^ 
on its financial power, or (5) furnish a legal sanction for 
the enforcement of the whole. In spite of Dr. Gneist's 
high authority, it is doubtful whether an analysis of Magna 
Carta upon these somewhat arbitrary lines throws much 
light on its main objects or results. Such a division is 
founded on distinctions not clearly formulated in the 
thirteenth century, when the various functions of govern- 
ment were still undifferentiated. 2 

II. Provisions classified according as they are of a j^ro- ^- 
^ressive, reactionary, or declaratory nature. 

Blackstone,3 writing in 1759, expresses the generally 
accepted views : " It is_ agr eed by ^11 our historians that ^^ 
the Great Charter ofKing John was forjthe jnost part com - 
piled from the ancient customs^ of the realm, or the laws /{J^ 
of King Edward |Efi_Ccuife_ssor, by which they usually 7^ 
mean the commmijaw, which was established under our 
Saxon princes, before the rigours of feudal tenures and ^ 
other hardships were imported from the continent." Sub- 
stantially the same doctrine has been enunciated only the 
other day, by our highest authority. " On the whole, the / , 
charter contains little that is absolutely new. It is restora-/^^^ 
tive. V John in these last years has been breaking the law ;| ^7 
therefore the law must be defined and set in writing." ^ ^ 
This view seems, on the whole, a correct one : the insur- 
gents in 12 15 professed to be demanding nothing new. l. 
Yet the Great Charter contained much that was unknown \ Jf\ 
to the days of the Confessor and had no place in the pro- j 
mises of Henry I. 

Thus it is not sufficient to describe Magna Carta merely 

^msL Engl. Const., Chapter XVIII. 

2 Dr. Gneist indeed confesses this, when, in discussing the limitations of the 
financial power, he admits that many of these are "already comprised in the 
provisions touching the feudal power." 

^ Great Charter, vii. * Pollock and Maitland, I. 151. 



112 MAGNA CARTA: ITS FORM AND CONTENTS 

as a declaratory enactment : it is necessary to distinguish 
between the different sources of what it declared. A four- 
fold division may be suggested, (i) Magna Carta handed 
on some of the usages of the ol d English law unchang ed 
by the Conque ror or his successors, no w conhrn ied/and 
pudfiedTTrom abuseSj~~T2)"In definingTeudal incidents and 
services, it confirmed many rules of the feudal law brought '" 
into England by^ the Normans af ter 1 066. "(3) ~Tt also 
embodied many provTslons of which William I. and even -^ 
Henry I. knew no more than did the Anglo-Saxon kings — 
innovations introduced for his own purposes by Henry of 
Anjou, but, after half a century of experience, now accepted 
loyally even by the most bitter opponents of the Crown. 
In the words of Mr. Prothero, " We find . . . the judicial, 
and administrative system established by Henry II. pre-"' 
served almost intact in Magna Carta, though its abuse was a) 
carefully guarded against."^ Finally, (4) in some few 

/points, the Charter aimed at going farther than Henry II. 

I had intended to go: to mention only two particulars, the 
*^ petty assizes are to be taken four times a year, while 

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

^ Simon de Montfort, 17. 



ITS CONTENTS AND CHARACTERISTICS 113 

are, in reality, innovations; while others tend towards 
reaction. 

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

Here we are face to face with a fundamental question of 
immense importance : Does the Great Charter really, as 
the orthodox view so vehemently asserts, protect the rights 
of the whole mass of humble Englishmen equally with 
those of the proudest noble ? Or is it rather a series of 
concessions to feudal selfishness wrung from the King by 
a handful of powerful aristocrats ? On such questions, 
learned opinion is sharply divided, although an over- 
whelming majority of authorities range themselves on the 
popular side, from Coke down to writers of the present day. 
Lord Chatham, in one of his great orations,^ insisted that 
the barons who wrested the Charter from John established'^ 
claims to the gratitude of posterity because they " did not / 
confine it to themselves alone, but delivered it as a > 
common blessing to the whole people " ; and Sir Edward j 
Greasy ^ caps these words with more ecstatic words of his 
own, declaring that one effect of the Charter was _^l_to_£iye 
and to guarantee full protection for property and person /N 
to e very hu ma.n..berng that breathes English air." Staid 
lawyers and historians like Blackstone and Hallam use 
similar expressions. " An equal distribution of civil rights 
to all classes of freemen forms the peculiar beauty of the 
charter"; so we are told by Hallam. 3 Bishop Stubbs 
unequivocally enunciated the same doctrine. " Clause by 
clause the rights of the commons are provided for as well 
as the rights of the nobles. . . . This proves, if any proof 
were wanted, that the demands of the barons were no selfish 
exactions of privilege for themselves." * "The rights 
which the barons claimed for themselves," says John 
Richard Green, ^ "they claimed for the nation at large." 

^ House of Lords, 9th January, 1770. "^History of English Constitution, 151. 

^ Middle Ages, \\. 447. ^ Const. Hist., I. 570- 1. 

^ Short History, 124. Cf. Gneist, Const. Hist, (trans, by P. A. Ashworth), 253; 
"A separate right for nobles, citizens, and peasants, was no longer possible." See 
also Gneist, Hist, of Engl. Pari, (trans, by A. H. Keane), 103, and Hannis 
Taylor, Engl. Const., I. 380. 

H 



114 MAGNA CARTA: ITS FORM AND CONTENTS 

It would be easy to add to this "cloud of witnesses," but 
enough has been said to prove that it has been a common 
boast of Englishmen, for many centuries, that the provi- 
sions of the Great Charter were intended to secure, and 
did secure, the liberties of every class and individual, not 
merely those of the feudal magnates. 

It is a usual corollary to this theory, to attribute credit 
to Stephen Langton for broad-minded statesmanship : the 
so-called " Articles of the Barons " are really, it would 
seem, articles of the archbishop. In Miss Norgate's words, 
the original articles " are obviously not the composition of 
the barons mustered under Robert Fitz- Walter, " who could 
never have risen to " the lofty conception embodied in the 
Charter — the conception of a contract between King and 
people which should secure equal rights to every class and 
every individual in the nation." i 

It is not safe, however, to accept, without a careful con- 
sideration of the evidence, opinions cited even from such 
high authorities. " Equality " is essentially a modern 
ideal : for many centuries after the thirteenth, class 
legislation maintained its prominent place on the Statute 
Rolls, and the interests of the various classes were by no 
means always identical. A vigorous minority has always 
protested against the popular view of Magna Carta. " It 
has been lately the fashion," Hallam confesses, "to depre- 
ciate the value of Magna Charta, as if it had sprung from 
the private ambition of a few selfish barons, and redressed 
- only some feudal abuses." 2 

Two different parts of the Charter have a bearing on this 
\ 1 question : chapter i, which explains to whom the rights 
were granted; and chapter 61, which declares by whom 
they were to be enforced. The liberties were confirmed 
"to all freemen of my kingdom and their heirs for ever." 
This opens the question — who were freemen in 1215 ? An 
enthusiasm that seeks to enhance the merits of Magna 
Carta by extending its provisions as widely as possible, 

^ Norgate, /okn Lackland, 233. 

"^Middle Ages, II. 447. See, e.g. Robert Brady, A Ftill and Clear Answer 
(1683). 



ITS CONTENTS AND CHARACTERISTICS 115 

has led commentators to stretch the meaning of " freeman " 
to embrace the entire population of England, including 
not only churchmen, merchants, and yeomen, but even 
villeins. 

Now, homo in medieval law-Latin, was originally 
synonymous with baro — all feudal vassals being described 
as "men" or "barons." Magna Carta is a feudal grant, iv' 
and the presumption is in favour of the technical feudal 
meaning. The word, indeed, occasionally bore a looser, 
wider sense; but any room for ambiguity seems to be 
precluded by the use of the qualifying word " free." No 
villein was fully a ^' liber homo." In chapter 34, for 
example, the " liber homo" is assumed to be a landowner 
with a manorial court. Even a burgess might not be 
reckoned for all purposes as " free " ; for the Dialogus de 
Scaccario discusses how far a miles or other liber homo 
might lose his status by engaging in commerce in order 
to make money. ^ The word "freeman," it would appear,' - 
as used in the Charter is synonymous with " freeholder " ; 
and therefore only a lirnited class could, as grantees or the 
heirs of such, make good a legal clsiim to share in the 
liberties secured by it.^ To the question, who^ had 
authority to enforce its provisions, the Great Charter has 
likewise a definite answer, namely, a quasi-committee of 
twenty-five barons. It is clear that no support for demo- 
cratic interpretations of Magna Carta can be founded on 

'^Dialogus, II. xiii. c. 

2 In addition to its appearance in the two places mentioned in the text, the 
word ''freeman" appears in five other chapters, 15, 20, 27, 30, and 39. The 
last three instances throw no light on the meaning of the word. It is different, 
however, with chapter 15, where freemen are necessarily feudal tenants of a 
mesne lord— that is, freeholders ; and with chapter 20, where, in the matter of 
amercement, freeman is contrasted with villanus. Further, where men of servile 
birth are clearly meant, they are described generally as probi homines {e.g. in 
cc. 20, 29, and 48), and in one place, perhaps, c. 26, as legales homines. 
Chapter 44 mentions homines without any qualification. It seems safe to infer 
that the Great Charter never spoke of " freemen " when it meant to include the 
ordinary peasantry or villagers. In chapter 39 of the reissue of 1217, liber homo 
is clearly used as synonymous with "freeholder." In later centuries, it is true, 
the "freeman" of the Charter came to be read in an ever less restricted sense, 
until it embraced all Englishmen. 



ii6 MAGNA CARTA: ITS FORM AND CONTENTS 

the choice of executors; since these formed a distinctly 
aristocratic body. 

Magna Carta, indeed, contains positive evidences which 
point to the existence of class legislation. At the begin- 
ning and end of the Charter, clauses are inserted to secure 
to the Church its " freedom " and privileges. Many 
chapters, again, have no value except to landowners; a 
few affect tradesmen and townsmen exclusively; while 
chapters 20 to 22 adopt distinct sets of rules for the amerce- 
ment of the ordinary freeman, the churchman, and the earl 
or baron respectively. A distinction is made (for example, 
in chapter 20) between the freeman and the villein, and the 
latter was carefully excluded from many of the benefits 
conferred on others by Magna Carta. ^ 

(i) The Feudal Aristocracy. A casual glance at the 
clauses of the Great Charter shows how prominently feudal 
rights and obligations bulked in the eyes of its promoters. 
Provisions of this type must be considered chiefly as con- 
cessions to the feudal aristocracy — although the relief, 
primarily intended for them, indirectly benefited other 
classes as well. 

(2) Ecclesiastics. The position of the Church is easily 
understood when we neglect the privileges enjoyed by its 
great men qua barons rather than qua prelates. The 
special Church clauses found no place whatsoever in the 
Articles of the Barons, but bear every appearace of having 
been added as an after-thought, due probably to the 
influence of Stephen Langton.2 Further, they are mainly 
confirmatory of the separate Charter already twice granted 
within the few preceding months. 

(3) Tenants and Mesne Lords. When compelling John 
to grant Magna Carta by parade of armed might, the 
barons were obliged to rely on the support of their own 
freeholders. It was necessary that these under-tenants 
should receive some recognition of their claims, and con- 
cessions in their favour are contained in two clauses 
(couched apparently in no generous spirit), chapters 15 
and 60. The former limits the number of occasions on 

^See zn/ra, under c. 39. ^Cf. sti/>ra, p. 39. 



^ 



ITS CONTENTS AND CHARACTERISTICS 117 

which aids might be extorted from sub-tenants to the same 
three as were recognized in the Crown's case. Chapter 60 
provides generally that all customs and liberties which 
John agrees to observe towards his vassals shall be observed ^'^[ 
by mesne lords, whether prelates or laymen, towards their 
sub-vassals. This provision has met with a chorus of 
applause from modern writers. Dr. Hannis Taylor ^ 
declares that, " animated by a broad spirit of generous 
patriotism, the barons stipulated in the treaty that every 
limitation imposed for their protection upon the feudal 
rights of the king should also be imposed upon their rights 
as mesne lords in favour of the under-tenants who held of -- 
them." 2 A vague general clause, however, affords little 
protection in a rude age and might readily be infringed 
when occasion arose. The barons were compelled to do 
something, or to pretend to do something, for their under- /- 7^ 
tenants. Apparently they did as little as they, with safety 
or decency, could. 

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

'^English Constitution^ I. 383. 

2 Bishop Stubbs, Preface to W. Coventry^ II. Ixxi., represents the barons, in 
their fervour for abstract law, as actually supporting their own vassals against 
themselves : " the Barons of Runnymede guard the people against themselves as 
well as against the common tyrant. " 

2 For details, see infra under cc. 12, 13, 33, 35, and 41. Compare with the 
corresponding Articles of the Barons (viz. 32, 23, 12, and 31). The alterations, 



# 



y 



ii8 MAGNA CARTA: ITS FORM AND CONTENTS 

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

(The villein was protected, however, not as the acknow- 
ledged subject of legal rights, but because he formed a 
valuable asset of his lord. 2 This attitude is illustrated by 
V a somewhat peculiar expression used in chapter 4, which 
\ prohibited injury to the estate of a ward by " waste of men 
' or things." For a guardian to raise a villein to the status 
of a freeman was to benefit the enfranchised peasant at 
^ the expense of his young master. ^ 

I A Other clauses of John's Charter and of the various reissues 
^j/L^show scrupulous care to avoid infringing the rights of 
'^property enjoyed by manorial lords over their villeins. 
v;.TheKin^ pf^^jHjT^ ^mejcjp. nth er people's villeins harshly, 
although those on his own farms might be amerced at his ' 
discretion. Chapter 16, while carefully prohibiting any^j 
\ arbitrary increase of service from freehold "property, leaves^ 
by inference all villein holdings unprotected. The " farms " 
or rents of ancient demesne might be raised by the Crown,* 
and tallages might be arbitrarily taken (measures likely to 
press hardly on the villein class). The villein was deliber- 
ately left exposed to the worst forms of purveyance, from 
which chapters 28 and 30 rescued his betters. The horses 
and implements of the villanus were still at the mercy of 

slightly inimical to the towns, seem to show that the barons were more willing to 
sacrifice their allies' interests than their own to John's insistence, when the final 
terms were being haggled over. 

^ See Coke, Second Institute^ p. 45, "for they are free against all men, saving 
against their lord." Contrast ibid., p. 27. 

2 Cf. under c. 20 infra. ^ Cf. under c. 4 infra. *■ See under c. 25 infra. 



ITS CONTENTS AND CHARACTERISTICS 119 

the Crown's purveyors. The reissue of 1217 confirms this 
view : while demesne waggons were protected, those of 
villeins were left exposed.^ Again, the chapter that takes 
the place of the famous chapter 39 of 1215^ makes it clear 
that lands held in villeinage are not to be protected from 
arbitrary disseisin or dispossession. The villein was left ) 
by the common law merely a tenant-at-will — subject to^ 
arbitrary ejectment by his lord — whatever meagre measure j 
of protection he might obtain under the "custom of the' 
manor " as interpreted by the court of the lord who 
oppressed him. 

When taken together, the significance of these somewhat 
trivial points is clear. The bulk of the English peasantry;-; N^ 
were protected by Magna Carta merely because they formed | \ 
valuable assets of their lords. The Charter viewed them as 
" villeins regardant " — as chattels attached to a manor, not 
as members of an English commonwealth. 3 

The conclusion derived from this survey is that the 
baronial leaders are scarcely entitled to the excessive lauda- 
tion they have sometimes received. The rude beginnings 
of features prominent later on (such as the conceptions of 
patriotism, nationality, equality before the law, and tender p 
regard for the rights of the humble) may possibly be found ^ 
in germ in parts of the completed Charter ; but the Articles 
of the Barons were what their name implies, a baronial 
manifesto, seeking chiefly to redress the private grievances / 
of the promoters, and mainly selfish in motive. 

Yet, when all deductions have been made, the Great 
Charter stands out as a prominent landmark in the sequence 
of events that have led, in an unbroken chain, to the con- ^ ^f 
solidation of the English nation, and to the establishment 
of a free and constitutional form of polity upon a basis so 

^ See chapter 26 of 12 17. 2 See chapter 35 of 1217. 

2 Dr. Stubbs takes a different view. Admitting that there is '* so little notice 
of the villeins in the charter," he explains the omission on two grounds : (i) they > 
had fewer grievances to redress than members of other classes ; (2) they partici- w 
pated in all grants from which they were not specially excluded. ** It was not 
that they had no spokesman, but that they were free from the more pressing 
■grievances, and benefited from every general provision." Preface to JV. Coventry, 
II. Ixxiii. 



i2di MAGNA CARTA: ITS FORM AND CONTENTS 



enduring that, after many centuries of growth, it still retains 
— or, until a few years ago, did retain — the vigour and 
buoyancy of youth. 

4v J Magna Carta : an Estimate of its Value. 

The importance of the Charter for the men of 12 15 did not 
lie in what forms its main value for the constitutional 

leorists of to-day. To the barons at Runnymede its merit 
was that it was something definite and utilitarian — a legal u 
document with specific remedies for current evils. To - 
English lawyers and historians of a later age it became 
something intangible and ideal, a symbol for the essential 
principles of the English Constitution, a palladium of 
^nglish liberties. 

To trace the growth of these modern estimates lies outside 
the scope of the present treatise ; but it should be noted that 
admiration for John's Charter and its numerous reissues 
and confirmations was moi^e measured among contem- 
poraries than among its votaries of the seventeenth or nine- 
teenth centuries; and that, for a long intervening period, it 
suffered almost complete neglect. 

There is some reason to suppose that the Carta Liber- 
latum or Carta Baronum (as it is usually cited by contem- 
porary authorities) was first described as " great " in the 
reign of Henry III., and that it was then "great" mainly 
in a material sense, a " large " charter as contrasted with a 
certain parva carta granted by Henry in 1237.^ 

When, after many confirmations, the Charter had estab- 
lished itself as a permanent part of the law of the land, it 
seems to have fallen into the background of men's thoughts. 
It played no conscious or conspicuous part in the " consti- 
tutional experiments " of the Yorkist kings ; and friends of 
popular liberties under the Tudors seem to have made few 
appeals to its authority; Shakespeare's King John has 
nothing to say of Runnymede or what happened there. 2 It 
was during the struggles of Parliament with the first two 
Stewart Kings and in part through the influence of Coke, 

^See znfra, p. 157. '^See A. F. Pollard, Benry V/I/., 33 ff. 



1 



I 



AN ESTIMATE OF ITS VALUE 121 

with his strange combination of black-letter lore and enthu- 
siasm for the old Constitution as interpreted by him, that 
the Charter, now "great" in a sense higher than material^J^/^' 
took hold oF the popular imagination. Thereafter esti- 
mates of its worth steadily expanded. In many a time of 
national crisis, Magna Carta has been appealed to as a 
fundamental law too sacred to be altered — as a talisman ^ 
containing some magic spell, capable of averting national // 
calamity* "^-Kl 

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

The numerous factors which contributed towards the ~7  
worth of Magna Carta may be distinguished as of two kinds, 
inherent and accidental, (a) Its ^atllDi^C value depends ^-^ 
on the nature of its own provisions. The reforms demanded 
by the barons were juSt and moderate : avoidance of 
extremes tended towards a permanent settlement. Its aims 
were practical as well as moderate; the language in which 
they were framed, clear and straightforward. A high [ 



authority has described the Charter as " an^ Jntenjely 1 
practical document."^ This practicability is an English ^ 
characteristic, and strikes the key-note of almost every great ^ 
movement for reform which has. succeeded in English ^ 
history. Closely connected with this is another feature, the 
markedly Ipcrnl j^^tiArt^ of the Charter. As Magna Carta, -^ 
after Coke's day, was rarely absent from the thoughts of 
statesmen, a practical and legal direction was thus given to 
the efforts of Englishmen in many ages. 2 Therein lies 
another English characteristic. While democratic enthusi- 
astsin France and America have often sought to found their 
liberties on a lofty but unstable basis of philosophical theory 
embodied in Declarations of Rights; Englishmen have/.,., 
occupied lower but surer ground, aiming at practical /H^ 

1 Maitland, Social England, I. 409. '7 

2Cf Gneist Const. Hist., Chapter XVIII. : *' By Magna Carta English history 
irrevocably took the direction of securing constitutional liberty by administrative 
law." 



S MAGNA CARTA: ITS FORM AND CONTENTS 

remedies for actual wrongs, rather than enunciating theo- 
retical platitudes with no realities to correspond. 

Further, the nature of the provisions bears witness to the 
liroad„.basis on which the edifice was intended to be 
^ilt. '/The Charter, notwithstanding the prominence given 
to feudal grievances, redressed other grievances as well.|?. 
.Another intrinsic merit was that it made definj te what h ad 

►een vague before. Defi nition is aT aTuablej^rotection for " 
'the weak agamst the strong : vagueness favours the tyrant 
who can interpret wtiile tie enlorces'the law. Mistyri^its 
were now red uced"tD--a:^t5Tigibleiorrnj^jnd ^^ longer 

bebroken witn i mpunitj ^. Where previously~TtTrTague- 
ness of the law lent itself to evasion, its clear re-statement 
in 1215 pinned down the King to a definite issue. He could J- 
no longer plead that he sinned in ignorance ; he must either- f 
keepTlhe law, or openly defy it — no middle course was 
possible. 

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

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

(i) Value of Individual Provisions, To judge from the 
reforms that attracted the notice of the only contemporary 



AN ESTIMATE OF ITS VALUE 123 

chronicler ^ whose opinion has come down to us, the clauses 
considered of most impp^|ance in his day were those treat- _ 
ing of the "disparagement", of women, loss of life or ' .- 
member for killing beasts of the forest, reliefs, the restora- 
tion of seignorial jurisdiction (" hautes justices ") and the 
appointment and powers of the twenty-five barons over the 
King's government and over the appointment of bailiffs. 

Some at least of these clauses are among those usually ^ 
considered reactionary, and there seems little doubt that the 
barons in 12 15 were deeply interested in the restoration of 
their feudal franchises, which Henry and his sons were 
taking away from them. In the words of the French his- 
torian, who was perhaps the first to sound the reaction from 
the " traditional " view of Magna Carta : " The barons had I 
no suspicion that they would one day be called the founders 
of English liberty. . . . They were guided by a crowd of 
small and very practical motives in extorting this form of — 
security from John Lackland." 2 

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

(2) Its Legal Value. The value of the Charter as a whole, 
however, is more than a mere sum of the values of its 
separate parts. Its great importance lay, not in the exact 
terms of any or all of its provisions, but in the fact that it i 
enunciated a definite bod jr of la\^^ claiming to be above the|— 'p 
King's will and adrnltted as such by John. As our supreme 
authorities say of Magna Carta: • "For in brief it means 
this, that the King is, and shall be below the Jaw.'' * The /L 

'^ B'ts^oire des dues {A.D. 1220), I4g-i^0. ^ 

2 Petit-Dutaillis, Louis VIIL, 58. C/. Adams, Origin, 249. 

2 Prof. Adams {Origin, 176 n.) condenses its essence into three general rules. 
Prof. Maitland {Collected Papers, II. 38), from a temporary angle of observation, 
declares that " Magna Carta is an act for the amendment of the law of real 
property and for the advancement of justice." John Lilburne {Just Man's 
/ustification, p. 11) was also thinking of particular clauses when he wrote, 
" Magna Carta itself being but a beggarly thing containing many marks of 
intolerable bondage." 

^Pollock and Maitland, I. 152. See, however, Petit-Dutaillis, Studies Supple- 
vientary, 143 (criticising Pollock and Maitland): "That again, it seems to 



124 MAGNA CARTA: ITS FORM AND CONTENTS 



King, by granting the Charter, admitted that he was no^ 
an absolute ruler — that he had a master in the laws he had 
often violated, but which he now swore to obey. Magna 
Carta has thus been truly said to enunciate " the reign of 
law " or " rule of law " in the phrase made famous by Pro- 
fessor Dicey. 1 

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

(3) Its Value for the future Development of the Con- 
stitutio7i. Magna Carta marks the commencement of a "^ 
new grouping of political forces in England; indeed, with- 
out such a rearrangement, the winning of the Charter would 
have been impossible. Throughout the reign of Richard I. 
the unity of interests between King and lower classes had- 
been endangered by the heavy drain of taxation ; but the 
actual break-up of the old tacit alliance only came in the ^ 
crisis of John's reign. Henceforward can be traced a r 
change in the balance of parties in the commonwealth. No 
longer are Crown and people united, in the name of law and - 
order, against the baronage, standing for feudal disintegra- 
tion. The mass of humble freemen and the Church form a 
league with the barons, in the name of law and order, 
against the Crown, now the chief law-breaker. 

Such an alliance involved the adoption of a new baronial 

us, is to assign too glorious a r61e to the baronage of John Lackland and to 
its political conceptions, which are childish and anarchical. The English 
nobility of that day had not the idea of law at all." 

^ A. V. Dicey, Law of the Constitution, Part II, 

2 Adams, Origin, 251. 



I 



t 



AN ESTIMATE OF ITS VALUE 125 

policy. Hitherto each great baron had aimed at his own 
independence, striving to gain new franchises for himself, 
and to keep the King outside. This policy, which succeeded 
both in France and Scotland, had before John's reign 
already failed in England; and the English barons, now- 
admitting the hopelessness of the struggle for feudal 
independence, substituted a more progressive policy. The 
King, whose interference they coufd no longer hope com- 
pletely to shake off, must at least be taught to interfere 
justly and according to rule; he must walk by law and . 
custom, not by the caprices of his evil heart. The barons T"' 
sought to control henceforward the royal power they could 
not exclude : they desired some share in the national 
councils, if they could no longer hope to create little 
nations of their own within the four corners of their fiefs. 
Magna Carta was the fruit of this new policy. 

It has been often repeated, and with truth, that the Great 
Charter marks also a stage in the growth of national unity |~""— 
or nationality. Here, however, it is necessary to guard y 
against exaggeration. It marks merely a stage in a pro-. ! 
cess, rather than a final achievement. It is necessary 
somewhat to discount the Charter's claims to be " the first^^"''' 
documentary proof of the existence of a united English 
nation " and the often-quoted w^ords of Dr. Stubbs, that 
" the Great Charter is the first great public act of the 
nation, after it has realised its own identity." ^ 
A/ A united English nation, whether conscious or uncon- 
scious of its identity, cannot be said to have existed in 
1215, except under several qualifications. The conception 
of " nationality," in the modern sense, is of recent origin, 
and requires that the lower as well as the higher classes 
should be comprehended within its bounds. Further, the 
coalition which wrested the Charter from the royal tyrant 
was essentially of a temporary nature, and quickly fell to 

1 Cons^. Hist., I. 571. Cf. Ibid., I. 583, "The act of the united nation, the 
church, the barons, and the commons, for the first time thoroughly at one." Who 
were *' the commons " in 121 5 ? Cf. also Prothero, Simon de Montfort, 18, "The 
spirit of nationality of which the chief portion of Magna Carta was at once the 
product and the seal." 



126 MAGNA CARTA: ITS FORM AND CONTENTS 

pieces. Even while the alliance continued, the interests 

of the various classes, as has been already shown, were 

far from identical. Political rights were treated as the 

monopoly of the few ; i and civil rights were far from 

.universally distributed. The leaders of the "national" 

; movement gave no political rights to the despised villeins, 

«^ who comprised more than three quarters of the population 

lof England; while their civil rights were almost completely 

I ignored in the provisions of the Charter. Magna Carta 

marked an important step, in the process by which England 

became a nation ; but that step was neither the first nor yet 

the final one. 2 

In treating of the juridical nature of Magna Carta as 

partly of the type of legislation known on the Continent 

as an etahlissement, requiring all participants in political 

power to be assembled round the King in order that they 

might give consent, it has already been suggested that what 

took place at Runnymede may have had an influence on 

the development of the conception of a series of estates 

and therefore on the genesis of the modern Parliament. 3 

The Charter's greatest contribution, however, to constitu- 

Itional advance lay undoubtedly in its admission (tacitly 

limplied in its every clause) that the royal prerogative was 

\ limited by the customary feudal rights of the bajfons^if 

not of other classes as well). 

In a sense there was nothing new in this : the feudal 
relation, with its inherent conceptions of mutual, con- 
tractual obligations and the rights of diffldatio and rebellion, 
needed no official proclamation : it was known to all. But 
the formal embodiment of a great mass of feudal custom 
j?, in a document, destined to be consulted and reinterpreted 
' I in future ages, created, as it were, a bridge between the 
J older monarchy, limited by medieval, feudal restraints, and 
•--X. the modern, constitutional monarchy, limited by a national 

^ See infra, under c. 14. 

2 The possibility that the movement leading to the Great Charter may have also 
helped forward the growth of the idea of a separate national Church is discussed 
infra, under c. one. 

^ Supra, p. 109. 



■-"t 



p' 



AN ESTIMATE OF ITS VALUE 127 

law enforced by Parliament. This is the main thesis upon 
which Professor Adams so emphatically insists, " the un- 
intended result " of Magna Carta. ^ In light of it, he claims 
to have located the origin of the English Constitution in 
Magna Carta, and in these two principles of it which assert 
the limitations of the King's prerogative and the barons'j^T^ 
right to compel him to respect the rights of others. 

These estimates of the role played by Magna Carta would 
seem to be somewhat excessive and to attempt to find too 
simple an origin for a system of which complexity and 
compromise between conflicting elements are the very 
essence. On the one hand, there is more in the English 
Constitution than the mere principle of limited monarchy : 
on the other, the main line by which that monarchy has 
progressed from medieval to modern ideals has not been 
by the method, unsuccessfully attempted in 1215, 1244, 1258, 
1265 and 131 1 (to name only the best-known instances), of 
subjecting the King to the dictation of a Committee of his 
adversaries ; but rather the method of using the counsellors 
of his own appointment to curb his own caprice, while 
making it progressively difficult for him to appoint any 
minister of whom the national council did not approve. 
The revolutionary expedient of the Committee of twenty- 
five was not destined to be on the direct line of develop- 
ment that led, through the doctrine of ministerial responsi- 
bility, to the Cabinet system of government that reached 
and perhaps passed its highest point of achievement in the 
nineteenth century. 

(4) lis Moral or Sentimental Value, After every allow- 
ance has been made for the great and beneficent influence 
of Magna Carta, it may still be doubted whether the belief 
of enthusiasts in its excessive importance has been fully 
justified. Many other triumphs, almost equally important, 
have been won in the cause of liberty ; and statutes have 
been passed embodying them. Why then should Magna 
Carta be extolled as the palladium of English liberties? 
Is not, when all is said, the extreme merit attributed to it 
mainly of a sentimental or imaginative nature ? Such 

^ Adams, Origin, 250. 



128 MAGNA CARTA: ITS FORM AND CONTENTS 

questions must be answered partly in the affirmative. 
Ij^ Much of its value does depend on sentiment. Yet allj 
government is, in a sense, founded upon sentiment — some- 
times affection, sometimes fear: psychological considera-i 
tions are all-powerful in the practical affairs of life.i 
Intangible and even unreal phenomena have played an 
important part in the history of nations. The tie that binds 
the British colonies at the present day to the Mother 
Country is largely one of sentiment ; yet the troopers from 
Canada and New Zealand who responded to the call of 
Britain in her hour of need produced practical results of 

y an obvious nature. The element of sentiment in politics 

^ can never be ignored. 

It is no disparagement of Magna Carta, then, to confess 
that part of its power has been read into it by later genera- 
tions, and lies in the halo, almost of romance, that has 
■gathered round it in the course of centuries. It became a "~ 
battle cry for future ages, a banner, a rallying: point, 
a stimulus to the imagination. For a King, thereafter, s 
openly to infringe the promises contained in the Great 
Charter, was to challenge public opinion — to put himself T" 
palpably in the wrong. For an aggrieved man, however 
humble, to base his rights upon its terms was to enlist the 
sympathy of all. Time and again, from the Barons' War 
against Henry III. to the days of John Hampden and 
Oliver Cromwell, the possibility of appealing to the words 
of Magna Carta has afforded a practical ground for opposi- 

f t'lon ; an easily iirtenigTBTe pfmcTpTFtolfigh for ; a fortified -^ 

'^ posftloh to Traid^^gainst the enemies of nafional freedom. 
To explain tEe exact way TiiwFichtHTs^^^^^^ document 

— dry as its details at first sight may seem — has fired the 
popular imagination, is a task that lies rather within the 
sphere of psychology than of history, as usually conceived. 
How^ever difficult it may be to explain this phenomenon, 
there is no doubt of its existence. The importance of the 
Great Charter has increased, as traditions, associations, and 
aspirations have clustered more thickly round it. 

Thus Magna Carta, in addition to its legal and political 
value, has a moral value of an equally emphatic kind. 



MAGNA CARTA: ITS DEFECTS 129 

Apart from and beyond the salutary effect of the useful 
laws it contains, its moral influence has contributed to aii") 
advance in the national spirit, and therefore in the national y 
liberties. Such considerations justify enthusiasts, who 
hold that the granting of Magna Carta was the turning- 
point in English history. ' 



V. Magna Carta. Its defects. 

The great weakness of the Charter was the absence of an I --''' 
adequate sa.nction. The only expedient for compelling the { '-^1 
King to keep his promises was clumsy and revolutionary ; 
quite worthless as a working scheme of government. ^.. 
Indeed, it was devised not so much to prevent the King^ / 
from breaking faith as to punish him when he had done so. / 
In other words, instead of constitutional machinery to turn / 
the theories of Magna Carta into realities, " a right of / 
legalized rebellion " was conferred on an executive com- 
mittee of twenty-five of the King's enemies.^ 

This is the chief defect, but not the only one. Many 
'minor faults and omissions may be traced to a similar root. 
Constitutional principles are conspicuously absent. The 
importance of a council or embryo parliament, framed on 
national lines; the right of such a body to influence the 
King's policy in normal times as well as in times of 
crisis ; the doctrine of ministerial responsibility ; the need 
of distinguishing the various functions of government, 
legislative, judicial, and administrative — all these cardinal 
principles are completely ignored. Only five of the sixty- 
three chapters can be said to bear directly on the subject)^ 
of constitutional (as opposed to purely legal) machinery, 
and these do so only incidentally, namely, chapters 14, 21, j 
39, 52, and 61. * 

The Commune Concilium, is indeed mentioned; and its 
composition and mode of summons are defined in chapter 
14. But this chapter appears as an afterthought — an 
appendix to chapter 12: it has no counterpart in the 
Articles of the Barons. The rebel magnates were interested 

^ See tn/ra, c. 6r, for details. 
I 



130 MAGNA CARTA: ITS FORM AND CONTENTS 

in the narrow question of scu tage , not in_t he_wide possi - 
Dilities involvt^d m the existence of a national counciL 
j TEe~CommwnF C'ona/twm was draped into the Charter, 
not on its own merits, but merely as a convenient method- 
f of preventing arbitrary increase of feudal exactions. This 
is further proved by the omission of the Council from the 
reissue of 12 17, when an alternative way of checking the 
increase of scutage had been devised. 

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

^ This is the view of Pike, J7ouse of Lords ^ 204. See infra^ c. 21. 



MAGNA CARTA: ITS DEFECTS 131 

It is clear that the leaders of the opposition in 12 15 did 
not consider the constitutional powers of a national Parlia- 
ment to be the best safeguard of the rights and liberties 
theoretically guaranteed by the Charter. They relied 
rather on the revolutionary powers of the twenty-five 
barons to be appointed under chapter 61. 

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

Thoughtful and statesmanlike as were many of the pro- 
visions of Magna Carta, and wide as was the ground they 
covered, important omissions can be pointed out. Some 
crucial questions seem not to have been foreseen ; others, 
for example the liability to foreign service, were deliber- 
ately shelved 2 — thus leaving room for future misunder- 
standings. The praise, justly earned, by its framers for 
the care and precision with which they defined a long list 
of the more crying abuses, must be qualified in view of ... ' 
the failure^tojproyide procedure to prevent their recurrence. 
Men had not yet learned the force of the maxim, so closely \ 
identified with all later reform movements in England, that j 
a right is valueless without an appropriate remedy to 
enforce it.^ 



1 Magna Carta has been described, in words already quoted with approval, as 
"an intensely practical document," Maitland, Social En gla7id, I. 409; but this 
requires qualification. If it was practical in preferring condemnation of definite 
grievances to enunciation of philosophical principles, it was unpractical in omitting 
machinery for giving effect to its provisions. 

2 Except in so far as affected by cc. 12 and 16. 

3 Mr. Prothero estimates more highly the constitutional value of Magna Carta : 
" The constitutional struggles of the following half-century would to a great extent 
have been anticipated had it retained its original form. " Simon de Mont/ori, 14. 



:32 MAGNA CARTA: ITS FORM AND CONTENTS 

V./j Magna Carta : Value of Traditional Interpretations. 

The Great Charter has formed a favourite theme for 

orators and politicians, partly from its intrinsic merit, 

'7 partly from its dramatic background, but chiefly because 

ij^^ it has been, from the time of its inception to the present 

'*^'^ day, a rallying cry and a bulwark in every crisis that 

threatened to endanger the national liberties. 

The uses to which it has been put, and the interpreta- 
tions read into it, are so numerous and varied, that they 
would require a separate treatise to describe them all. Not 
only was Magna Carta frequently reissued and confirmed, 
but its provisions have been asserted and reasserted times 
without number in Parliament, in the courts of justice, and 
in institutional works on jurisprudence. Its influence has 
thus been threefold ; and any attempt to explain its bearing 
on the subsequent history of English liberties would require 
to distinguish between these three separate and equally 
important aspects: — (i) It proved a powerful weapon in 
/ the hands of politicians, especially of the parliamentary 
leaders in the seventeenth century, when waging the battle 
of constitutional freedom against the Stewart dynasty. 

(2) Its legal aspect has been equally important as its 
^ political one : in the course of legal debate and in judicial 

opinions, it has been the subject of many and conflicting 
interpretations, some of them accurate and some erroneous.^ 

(3) Finally, it has been discussed in many commentaries 
either exclusively devoted to its elucidation or treating of 
it incidentally in the course of general expositions of the 
law of England. 

In light of the part played by Magna Carta throughout 
centuries of English history, it is not surprising that an 
increasing veneration has tended at times to overstep all 
bounds. It is unfortunate, however, that it has been more 
frequently described in terms of inflated rhetoric than of 
sober methodical analysis. 2 Nor has this tendency to un- 

* As early as 1231 the ** carta de Runemede " was cited in a plea. See Bracton's 
Notebook^ No. 513. See also No. 1478, dating from 1221 ; others in Index. 

2 Extravagant estimates of its value will readily suggest themselves. Sir James 
Mackintosh {History of England^ I. 218, edn. of 1853) declares that we are 



VALUE OF TRADITIONAL INTERPRETATIONS 133 

thinking adulation been confined to popular writers ; judges 
and institutional authors, even Sir Edward Coke, have too 
often lost the faculty of critical and exact scholarship when 
confronted with the virtues of the Great Charter. There 
is scarcely one great principle of the modern English 
constitution calculated to win the esteem of mankind, 
which has not been read by commentators into Magna 
Carta. The political leaders of the seventeenth century 1 
discovered among its chapters every reform they desired J 
to introduce into England, disguising revolutionary pro- ] 
jects by dressing them in the garb of the past. 

Instances of constitutional principles and institutions 
erroneously credited to the Great Charter will be expounded 
under appropriate chapters of the sequel. It will be suffi- 
cient, in the meantime, to enumerat e trial by j ury ; Habea s 
Corpus; abolition of arbitrary imprisonment; prohibition 
of~monopolfes'X~'the close tie between taxation and repre- 
sentation; equality before the law; a matured conception 
of nationality : all these, and more, have been discovered 
in various clauses of the Great Charter.^ 
'^ If these tendencies to excessive and sometimes ignorant 
praise have been unfortunate from one point of view, they 
have been most fortunate from another. The legal and 
political aspects must be sharply contrasted. If the vague 
and inaccurate words of Coke have obscured the bearing 
of many chapters, and diffused false notions of the develop- 
ment of English law ,'^ the service these very errors have 
done to the cause of constitutional progress is measureless. 
If political bias has coloured interpretation, the ensuing 
benefit has accrued to the cause of national progress in its 
widest and best developments. ^■- 

" bound to speak with reverential gratitude of the authors of the Great Charter. 
To have produced it, to have preserved it, to have matured it, constitute the im- 
mortal claim of England upon the esteem of mankind. Her Bacons and Shake- 
speares, her Miltons and Newtons, etc., etc." 

^Edmund Burke ( IVor/es, II. 53) credits Magna Carta with creating the House 
of Commons! "Magna Charta, if it did not give us originally the House ofJ" ^^y-/" 
Commons, gave us at least a House of Commons of weight and consequence." As f 
will be shown in the sequel, chapter 14 of the Great Charter (the only one bearing 
on the subject) is in reality of a reactionary nature, confining the right of attendance 
at the commune conciliuvi to the freeholders of the Crown. 




MAGNA CARTA: ITS FORM AND CONTENTS 

'hus the historian of Magna Carta, while bound to 
correct errors, cannot afford to despise traditional interpre- 
tations. The meanings read into it by learned men have 
had a potent effect whether they were historically well or 
ill founded. The stigma of being banned by the Great 
Charter was something to excite dread. If the belief pre- 
vailed that an abuse was really prohibited by Magna Carta, 
the most arbitrary king had difficulty in finding judges to 
declare it legal, or ministers to enforce it. The prevalence 
of such a bf ^ljpf ^^as the main poin t; whether it was well 
or ill founded was, for political purposes, immaterial. 

(The greatness of Magna Carta lies not so much in what 
it was to its framers in 12 15, as in what it afterwards 
became to the political leaders, to the judges and lawyers, 
and to the entire mass of the men of England in later ages. 



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

One persistent error, adopted for many centuries, and 
even now hard to dispel, is that the Great Charter 
guaranteed trial by jury.^ This belief is now held by all 
competent authorities to be unfounded. Not one of the 
three forms of a modern jury trial had taken definite shape 
in 1 2 15, although the root principle from which all three 
subsequently grew had been in use since the Norman 
Conquest.2 

Jury trial in each of the three forms in which it is known 
to modern English law (the grand jury, the^etty criminal 
jury, and the jury of civil pleas^TTs able to trace an unbroken 
pedigree (though by three distinct lines of descent) from 
the same ancestor, that principle known as recognitio or 
inquisitio, which was introduced into England by the 
Normans, and was simply the practice whereby the Crown 

1 The source of this error was the identification of jury trial with the judicium 
J>arium oic. 39. q.v. 

'^Yox the origin of the jury see Brunner, Schurgerichte (1871) : Haskins, Avi. 
His. Rtv.^V\\\. 613 fiF., traces the steps made towards the civil jury in Normand)', 
particularly under Henry's father, Geoffrey. 



RELATION TO TRIAL BY JURY 135 

obtained information on local affairs from the sworn testi- 
mony of local men. While thus postulating a foreign 
origin, we are afforded some consolation l)y "remembrance 
of a fact which modern authorities are inclined to neglect, 
namely, that the soil was prepared by Anglo-Saxon labour 
for its planting. 1 

The old English institution of frithborh-;;^the practice of 
binding together little groups of neighbours for preservation 
of the peace — and the custom of sending representatives of 
the villages to the Hundred Courts, had accustomed the 
natives to corporate action, and formed precedents for 
asking them to give evidence on local matters jointly and 
on oath. Further, one form of the jury-— the jury of 
accusation — is clearly foreshadowed by the directions given 
to the twelve senior thegns of each Wapentake by a well- 
/known law of Ethelred. Yet the credit of establishing the 
jury system as a fundamental institution in England is 
undoubtedly due to the Norman and Angevin kings, 
although they had no clear vision of the consequences of 
what they did. The uses to which Inquisitio was put by 
William and his sons in framing Domesday Book, collect- 
ing information, and dispensing justice, have already been 
discussed.2 It was reserved for Henry II. to start the 
institution on a further career of development : he thus laid 
the foundations of the modern jury system jiQt merely in 
one of its forms, but in all three of them. 

(i) In reorganizing machinery for the suppression and 
punishment of crime by the Assizes of Clarendon and 
Northampton, he established the principle that criminal 
trials should (in the normal case) begin with indictnient of 
the accused by a representative body of neighbours sworn 

^ The theory now generally accepted that the origin of trial by jury must be 
sought in procedure introduced by Norman dukes, not in any form of popular 
Anglo-Saxon institutions, is ably maintained by Pollock and Maitland, I. 119, 
and by the late Professor J. B. Thayer, Evidence^ p. 7. Undoubtedly their 
conclusions are in the main correct ; but trial by jury may have had more than 
one root, and appreciation of the Norman contribution need not lead to neglect 
of the Anglo-Saxon. See, e.g. Hannis Taylor, English Constitution^ I. 308 and 
I. 323 ; Vinogradoff, Growth of the Manor ^ 193 : * something more than a 
Norman device." 

* See supra, p. Z(>. 



136 MAGNA CARTA: ITS FORM AND CONTENTS 

to speak the truth. i This was merely a systematic enforce- 
ment of one of the many forms of inquisitio already in use : 
criminal prosecution was not to be begun on mere suspicion 
or irresponsible complaints. The jury of accusation (or 
presentment), instituted in 1 166, has continued in use ever 
since, passing by an unbroken development into the grand 
jury of the present day. 2 

(2) Py insisting that ordeal should supersede compurga- 
tion as the test of guilt or innocence, Henry unconsciously 
prepared the way for a second form of jury. When the 
fourth Lateran Council in the very year of Magna Carta 
forbade priests to countenance ordeal by their presence or 
blessing, a death-blow was dealt to that form of procedure 
or "test," since it depended for its authority on supersti- 
tion. A canon of the Church had struck away the pivot 
on which Henry had made his criminal system to revolve. 
Some substitute was urgently required and so the petty 
jury (or its rude antecedent) came into existence. The man 
publicly accused as presumably guilty was asked if he 
would stand or fall by reference to the verdict of a second 
jury of neighbours. This second verdict, then, was the 
new " test " or " law " substituted, if the accused man 
agreed, for his old right of proving himself innocent by 
ordeal. By obscure steps, on which those best entitled to 
speak with authority are not yet agreed, this jury, giving 
a second and final verdict, gradually developed into the 
criminal jury of twelve, the petty jury of to-day, which has 
had so important an influence on the development of con- 
stitutional liberties in England, and even on the national 
character. Another expedient of Henry's invention aided 
the movement towards the criminal jury, namely, the writ 
de odio et atia by applying for which a man " appealed "^ 

^ See Pollock and Maitland, I. 131. It was part of Henry's policy to substitute 
indictment by a representative jury for the older appeal by the wronged individual 
or his surviving relatives. The older procedure, however, was not completely 
abolished : its continuance and its unpopularity may be traced in chapter 54 of 
Magna Carta, c/.v. 

'Chapter 38 of Magna Carta, according to a plausible interpretation of an 
admittedly obscure passage, seems to insist on the necessity of such an accusation 
by the jury : — *' non . . . sine testibus Jidelibus ad hoc itidnctis." 



RELATION TO TRIAL BY JURY 137 

of a crime might substitute what was practically a jury's 
verdict for the " battle " which had previously followed 
" appeal " as matter of course. ^ 

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

This new expedient was applied at first only to a few 
special cases. It was used to settle claims of ultimate title 
— the out-and-out ownership of land — and then it was 
known as the Grand Assize ; it was also used to settle 
a few well-defined groups of pleas of disputed possession, 
and then it was known as a Petty Assize (of which there 
were three distinct varieties) .2 The King by a high- 
handed act of power deprived the demandant of that remedy 
which was his right by feudal law, the resort to the legal 
duel. It was because the new procedure was founded on 
a royal Ordinance, that the name " Assize " was applied 
to it. 

By consent of hoik parties, however, disputes of almost 
every description might be similarly determined; being 
referred (under supervision of the King's judges) to the 
verdict of local recognitors, usually twelve in number, who 
were then known as a jurata (not an assisa). While the 
assisa was narrowly confined to a few types of cases, the 
'jurata was a flexible remedy capable of indefinite expansion, 
and thus soon became the more popular and the more 
important of the two. Sometimes the twelve recognitors, 
summoned as an assisa by the King's command, were by 

^ For details see tn/ra under chapter 36, and supra, p. 89. 
'The three Petty Assizes are mentioned by name in c. 18, q.v. 



138 MAGNA CARTA : ITS FORM AND CONTENTS 

consent of both litigants turned into a jurata to try a 
broader issue that had unexpectedly arisen. This explains 
the phrase, assisa vertitur ad juratam. The assisa and 
jurata, always closely connected and resembling each other 
in essential features, can both claim to be ancestors of the 
modern civil "jury," — the name of the more popular 
institution having survived. Magna Carta, in providing 
for the frequent holding of the three petty assizes, marked 
a stage in the development of the Civil Jury; while, by 
enforcing the criminal procedure of Henry Plantagenet, 
and guarding it from abuse, the Charter had also a vital 
bearing on the genesis of the Grand Jury and the Petty 
Jury alike. 

These tentative measures, however, still vague and un- 
consolidated, must not be identified with the definite 
procedure into which at a later date they coalesced : Magna 
Carta did not promise " trial by jury " to anyone. 



PART IV. 
HISTORICAL SEQUEL TO MAGNA CARTA 

I. Reissues and Confirmations of the Great Charter. 

King John had accepted the reforms contained in Magna 
Carta unwillingly and insincerely; but the advisers of 
his son accepted them in good faith. ^Three reissues of "^ 
the Charter were granted in 1216, in 12 17, and in i225,j) - 
and these were followed by many confirmations. The i\ 
scheme of this Historical Introduction is restricted to such v 
facts as have direct bearing on the genesis and contents 
of John's Charter. Yet no account of Magna Carta would 
be complete without some notice of the more important 
alterations effected in its text during the reigns of later 
kings. 

(I.) Reissue of 1216. On 28th October, 1216, Henry of 
Winchester was crowned at Gloucester before a small 
assemblage. 1 The young King took the usual oath as 
directed by the Bishop of Bath, and he also performed 
homage to the Pope's representative Gualo ; for the King 
of England was now a vassal of Rome.^ At a Council held 
at Bristol, on nth November, William Marshal, Earl of 
Pembroke, was appointed Rector regis et regni; and, next 
day, the Charter was reissued in the King's name. This 
was a step of extreme importance, marking the acceptance 
by those in power for the time being of the programme of 
the baronial opposition. 

^ See Annals of Waverley, p. 286. 

2 For the question of the Regency and the position of England as a fief of Rome, 
see Norgate, Minority, 10-62 ; Turner, Trans. R.H.S. (1904), 268 ff. In a plea 
roll of 1237 (Bracton's Notebook, No. 12 19) Gualo is described as ^* quasi tutor 
dontini regis et custos regni.^^ 



140 HISTORICAL SEQUEL TO MAGNA CARTA 

The Charter in its new provisional form was really a 
manifesto issued by the moderate men who rallied round 
the throne of the young King; it may be viewed in two 
aspects, as a declaration by the Regent and his co-adjutors 
of the policy on which they accepted office, and as a bid 
for the support of the barons who still adhered to the faction 
of the French prince. Its issue was, indeed, dictated by 
the crucial situation created by the presence in England of 
Prince Louis of France, supported by a foreign army and 
by a large faction of the English barons who had sworn 
homage to him as King. It was, therefore, framed in 
terms meant to conciliate such of the opposition as were 
still open to conciliation. 

Yet the new Charter could not be a verbatim repetition 
of the old one. Vital alterations were required by altered 
circumstances.^ It was no longer an expression of reluc- 
tant consent by the government of the day to the demands 
of its enemies, but a set of rules deliberately accepted by 
that government for its own guidance. The chief tyrant 
against whom the original provisions had been directed 
was dead, and certain forms of tyranny, it was confidently 
hoped, had died with him. Restraints now placed on the 
Crown's prerogatives would only hamper the free action of 
the men who framed them, not of their political opponents. 
The Regent, while willing to do much for the cause of 
conciliation, could not afford to paralyze his own efficiency 
at a time when foreign invaders were in possession of one- 
half of England, from which it would require a supreme 
effort to dislodge them. It was imperative that the govern- 
ment should retain a free hand in exacting feudal services 
and levying scutages. 

Miss Norgate argues,2 somewhat unconvincingly, that 
the omission of chapters 12 and 14 was a concession to 
Gualo and the Holy See. Rome had regarded these pro- 

^ The cause for wonder is rather how few changes required to be made. *' It is, 
however, by no means the least curious feature of the history, that so few changes 
were needed to transform a treaty won at the point of the sword into a manifesto of 
peace and sound government." Stubbs, Const. Hist., II. 21. 

^Minority, 15. 



REISSUES AND CONFIRMATIONS 141 

visions as dangerous innovations of so marked a kind as 
to justify the annulling of the Charter of 12 15, and papal 
sanction could be obtained in 12 16 only by their jettison. 
William Marshal, however, is not likely to have required 
external pressure : he naturally preferred to leave his own 
hands untied. 

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

The Charter of 1216^ is notable for its omissions, which 
may be arranged under five groups.* (i) Restraints placed 
in 1 2 15 on the taxing power of the Crown now disappeared. 
The chapters which forbade the King to increase the 
" farms " or fixed rents of the counties and hundreds, those 
which defined the King's relations with the Jews, and those 
which restricted the lucrative rights derived from the 
rigorous enforcement of the forest laws, were discarded. 
An even more important omission was that of chapter 12, 
which abolished the Crown's rights to increase feudal con- 
tributions arbitrarily, without consent of the Common 
Council.^ 

(2) No reference is made to John's charter of May, 12 15 
to the Church, granting liberty of elections, although the 
vague declaration that " the English Church should be 
free " was retained. Chapter 42, allowing liberty to leave 
the kingdom, and to return without the King's consent (a 
privilege chiefly valuable to the clergy in their intercourse 
with Rome) was entirely omitted : and the same is true of 

^ See Petit-Dutaillis, Louis, 130-I. ^Ibid., 181. 

^ In the Appendix, an attempt is made to show at a glance the main differences 
between the various Great Charters. 

*This classification takes no account of alterations merely verbal or inserted to 
remove ambiguities, e.g, cc. 22, 28, and 30 of the original Charter. 

*See, however, Adams {Origin, 261 ; 220), who maintains that the omission 
was not intended to leave the Crown a freer hand (whatever might be the practical 
result). 



142 HISTORICAL SEQUEL TO MAGNA CARTA 

chapter 27, which had placed in the church's hands the 
supervision of all distributions of chattels of men who had 
died intestate.^ 

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

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

(5) These alterations implied, incidentally rather than 
deliberately, the omission of such constitutional machinery 
as had found a place in John's Great Charter. The twenty- 
five Executors fell with the other temporary provisions ; 
while chapter 14, which defined the composition and mode- 
of summons of the Commune Concilium, was omitted with 
chapter 12, to which it had formed a supplement. 2 

Magna Carta as granted by Henry is thus concerned 
with matters which lie within the sphere of private law, 
and contains no attempt to devise machinery of govern- 

^ Are these omissions mainly accidental ? Are they the result of some influence- 
at work hostile to English ecclesiastics ? Or, are they due to the personal wishes, 
and ambitions of Gualo ? The Legate may have preferred to keep the patronage 
of vacant sees in his own hands rather than confirm the rival rights of chapters. 
It is notable that when John made his peace with Rome, no suggestion of '* free 
elections " was hinted at, whereas that concession was the essence of his charters to- 
the English Church. Again, freedom of intercourse with Rome would facilitate- 
appeals from the Legate to the Pope, and so diminish Gualo's authority. In the- 
months to follow, Gualo exercised almost despotic power over the Church, excom- 
municating all who supported Louis. On 27th October, 1217, he entered London,, 
"went to the church of St. Paul, . . . and he put in new canons ; and the old ones 
who had chanted the service in defiance of him he deprived of all their benefices. "^ 
Hist, des dues, 206. See also Adams, Origin, 258. Plonorius had conferred oa 
Gualo authority to appoint to vacant sees and benefices ; see Bouquet, XIX. 623. 

2 Minute points of difference, which are numerous, will be discussed under 
appropriate chapters of the Commentary. Cf. Norgate, Minority, 10-14; Adams, 
Origin, 256-7, who holds these changes to strengthen the theory *' that in the- 
original charter the barons intended to state the law accurately and were not trying- 
to take unjust advantage of the King." 



REISSUES AND CONFIRMATIONS 143 

ment or to construct safeguards for national liberties. 
The King's minority implied a constitutional check, in the 
necessary existence of guardians, but when Henry III. 
attained majority, Magna Carta, deprived of its original 
sanctions, would, with the disappearance of the Regency, 
tend to become an empty record of royal promises. The 
machinery of government remained exclusively monarchic ; 
the King, once out of leading-strings, would be restrained 
only by his own sense of honour and by the fear of armed 
resistance — by moral forces rather than legal or constitu- 
tional. The logical outcome was the Barons' War. 

The importance of the omissions is minimized by two 
considerations, (a) Many of the original provisions were 
declaratory, and their omission in 12 16 by no means 
implied that they were then abolished. The common law 
remained what it had been previously, although it was not 
deemed advisable to emphasize those particular parts of it 
in black and white. In particular, throughout the reign of 
Henry, the Comtyiune Concilium was always consulted 
before a levy was made of any scutage or aid. (b) It is 
stated in the new charter that the omitted clauses were 
reserved for further consideration. In the so-called 
" respiting clause " (chapter 42) six topics were thus 
reserved because of their " grave and doubtful " import : 
levying of scutages and aids; rights of Jews and other 
creditors; the liberty of going from and returning to Eng- 
land; the forest laws; the "farms" of counties; and the 
customs relating to banks of rivers and their guardians. 
This respiting clause amounts to a definite engagement by 
the King to consider at some future time (probably as soon 
as peace had been restored) how far it would be possible 
to re-enact the omitted provisions.^ 

A practical difficulty confronted the advisers of the young 

^Dr. Stubbs propounds the theory that this reissue of 1216 represents a com- 
promise whereby the central government, in return for increased taxing powers, 
allowed to the feudal magnates increased rights of jurisdiction. He gives, however, 
no reasons for this belief, either in Select Charters, p. 339, or in his Constitutional 
History, II. 27. The Crown reserved a freer hand in taxation, but there seems no 
evidence that feudal justice gained ground against royal justice in 1216, not already 
gained in 1215. 



144 HISTORICAL SEQUEL TO MAGNA CARTA 

King. Neither law nor custom afforded precedents for the 
execution of documents during a king's minority. The 
seal of a king was not available for his heir : the custom 
was to destroy the matrix when a death occurred, to prevent 
its being put to improper uses.^ Henry was made to 
explain that, in the absence of a seal of his own, the Charter 
had been sealed with the seals of Cardinal Gualo and of 
William Marshal, Earl of Pembroke, " rectoris nostri et 
regni nostri," 

In the Red Book of the Dublin Court of Exchequer there 
is a copy of an Irish version of this Charter,^ bearing to 
be executed at the same place and date as the English one 
(Bristol, 1 2th November, 1216). It is possible that it was 
not issued till some months later. After the coronation, 
the Marshal wrote to Geoffrey de Marsh, Justiciar of Ireland, 
promising to send a confirmation to the Irish of the liberties 
just granted to Henry's English subjects. ^ It was not till 
6th February, 1217, that this promise was fulfilled by the 
sending of an Irish version of the Charter, in the King's 
name, as a reward to his Irish subjects for their fidelity .* 
If this is the original transcribed into the Red Book, it 
would seem to have been antedated by nearly three months ; 
while its terms suggest that little trouble was taken to adapt 
the purport of the English Charter to Irish needs : four 
perfunctory alterations substitute the freedom of the Irish 
Church for that of the English Church; the liberties of 
Dublin for those of London ; prohibit weirs in the Liffey, 
instead of the Thames and Medway ; and make the " quarter 
of Dublin," not of London, the measure of corn. The value 

^ It is unnecessary to invent a catastrophe to account for the loss of John's seal. 
Blackstone [Great Charter, xxix.) says, " King John's great seal having been lost 
in passing the washes of Lincolnshire." 

2 On pp. 69-73. Text is given in Early Statutes of Ireland (Rolls Series, 
H. F. Berry), 5-19, and in Gilbert's Hist, and Mun. Docs, of Ireland, 65-72. 

^ New Rymer, I. 145. 

■* Rot. Pat., I. 31. Cf Norgate, Minority, p. 93 : "On 6th February, 1217, a copy 
of the Charter was sent to Ireland with a letter in the King's name addressed to all 
the King's faithful servants in Ireland, expressing his desire that . . . they and their 
heirs should, of his grace and gift, enjoy the same liberties which his father and he 
had granted to the realm of England." This was the Marshal's policy. 



REISSUES AND CONFIRMATIONS 145 

of the grant must have lain rather in the principle involved 
than in the phraseology of particular clauses. 

(II.) Reissue of 1217. The effect of the new Charter in 
England was disappointing : apart from the bishops, only 
four submissions were made to Henry in three months.^ 
The vicissitudes of the war need not be traced : on 19th 
May, 1217, the royalists gained a decisive victory at the 
battle known as the " Fair of Lincoln " ; and, on 24th 
August following, Hubert de Burgh destroyed the fleet 
on which Louis depended. The French prince was glad 
to accept honourable terms. Negotiations, beginning on 
the 8th, resulted, on 12th September, 12 17, in the Treaty 
of Lambeth or Kingston. " The treaty of Lambeth is, 
in practical importance, scarcely inferior to the charter 
itself." 2 It marked the final acceptance by the advisers of 
the Crown of the substance of Magna Carta as the per- 
manent basis of government for England in time of peace, 
not merely as a provisional expedient in time of war. Its 
terms were equally honourable to both parties : to the 
Regent and his supporters, because of the moderation they 
displayed; and to Louis who, while renouncing all claim 
to the English Crown, did so only on condition of a full 
pardon to his lay allies, and a guarantee of the principles 
they fought for. He strove in vain to make better terms 
for the clergy, who were left exposed to Gualo's vindictive 
greed.3 

It must have been an impressive scene when, on 12th 
September, at an eyot in the Thames near Kingston, 
between rival armies lining opposite banks, Louis (who 
had already granted a confirmation of the substance of 
John's Charter) and Henry, laying their hands on the 
Gospels, swore with the Legate and the Marshal to restore 
to the barons of England and all other men of the realm 
their rights and heritages, with the liberties formerly 
demanded.* Henry promised to pay to Louis 10,000 
marks nominally as an indemnity for his expenses, an 

^ Davis, En^/. under Normans y 392. ^gj-ybbg^ Const. Hist.^ II. 25. 

3 Petit-Dutaillis, Louis VIII., 171. 

* Wendover, IV. 31-32 ; cited Norgate, Minority, 59, where full details are given. 



146 HISTORICAL SEQUEL TO MAGNA CARTA 

amount partly raised by a scutage of two marks " ad 
Angliam deliberandam de Francis." i Louis, on his side, 
restored all cities, lands and property taken by him in 
England. One version of the treaty mentions particularly 
the Rolls of Exchequer, charters of the Jews, charters of 
liberties made in the time of King John, and all other 
exchequer writings. 2 The restoration of rights and liber- 
ties by Henry was the main provision of the treaty, and 
this was fulfilled on 6th November, 12 17, by the issue of a 
revised Charter of Liberties and a separate Forest Charter. ^ 
The issue of these two Charters put the coping stone to 
the general pacification. After the havoc wrought by two 
years of civil war, the moment had come for a declaration by 
the Regent of his policy for ruling an England once more 
at peace. Not only was he bound in honour to this course 
by the Treaty of Lambeth, but the opportunity was a good 
one for fulfilling the promise made in chapter 42 of the 
Charter of 12 16. Accordingly the respiting clause of that 
document disappeared, and some new clauses took its 
place. The matters then reserved for further discussion 

^Pipe Rolls, 2 and 3 Henry III., cited Petit-Dutaillis, 177. Miss Norgate 
{Minority, 85) gives the rate per incuriavi as "two shillings." 

'^Martene and Durand, Thesaurus Novus Anecdotoriwi (17 17), I. 858, cited 
Norgate, Minority, 59. Blackstone thinks that under this clause the original of 
the Articles of the Barons, captured by Louis with other national archives, 
was restored and deposited at Lambeth Palace until the seventeenth century. 
See Great Charter, xxxix. 

^The Charter of Liberties of 1217, found among the archives of Gloucester 
Abbey and now in the Bodleian Library at Oxford, still bears the impression of 
two seals — that of Gualo in yellow wax, and that of the Regent in green. See 
Blackstone, Great Charter, p. xxxv. The existence of the separate Forest Charter 
was only surmised by Blackstone, Ibid., p. xlii ; but, shortly after he wrote, an 
original of it was found among the archives of Durham Cathedral. For an account 
of this and of its discovery, see Thomson, Magna Charta, pp. 443-5. This 
Forest Charter bears the date 6th November, 12 17, and that, in itself, affords 
presumption that the Charter of Liberties (undated) to which it forms a supplement 
was executed at the same time. M. Bemont accepts this date ; see his Charles, 
xxviii., and authorities there cited. Blackstone, Great Charter, xxxix., gives the 
probable date as 23rd September. Dr. Stubbs gives 6th November in Const. 
Hist., II. 26; and both dates alternatively in Sel. Chart., 344. Prof. Lawlor, 
Engl. Hist. Rev., XXII. 514-6, contended for two independent issues, one of each 
date ; but Prof. Powicke's researches, Eng. Hist. Rev., XXIV. 232, prove that there 
is only one genuine charter of that year, dated as in the text. 



REISSUES AND CONFIRMATIONS 147 

as " gravia et dubitahilia " had now been reconsidered and 
were either finally abandoned, or accepted with or without 
amendment. Of the six topics "respited" in 12 16, one 
(concerning forests and warrens) was dealt with in the 
Forest Charter which took the place of chapters 36 and 38 
of 1 2 16 and of the omitted provisions of 12 15; two others 
(concerning scutage and enclosure of rivers) formed the 
subjects of special chapters (44 and 20 respectively) ; while 
the remaining three (the rights of Jews, free egress from 
and ingress to England, and the " farms " of shires) were 
not mentioned, although some of the grievances involved 
may have been indirectly affected by certain newly added 
chapters (e.g. that which regulated the times of meeting of 
shire and hundred courts) or by the " saving clause " in 
chapter 42. 

To take the chief alterations in the order in which 
they occur, ^ chapter 7 of 12 17 defines further a widow's 
rights of dower; chapters 13, 14 and 15 alter the procedure 
for taking the three petty assizes ; chapter 16 makes it clear 
that the King's villeins do not share in the protection from 
harsh amercement ; chapter 20, as already mentioned, treats 
of river enclosures ; chapters 23 and 26 treat of purveyance, 
the former extending the term of payment allowed to Crown 
officials, the latter exempting entirely the carts of people 
of the better classes — " parsons," knights and ladies. The 
two provisions, taken together, speak eloquently against 
the " democratic " interpretation of the Charter. Chapter 
34 further limits or defines Crown bailiffs' rights in regard 
to legal tests or " trials " where there is no evidence except 
their own unsupported testimony; chapter 38 makes clear 
a previously doubtful point concerning the King's rights 
over escheats. Chapters 39, 42, 43, 44 and 46 will immedi- 
ately receive separate discussion ; while chapter 47 ordains 
" of common counsel " the demolition of all " unlicensed '' 
strongholds built or rebuilt since the outbreak of the war 
between John and his barons. 

1 Details are discussed zn/ra, under appropriate chapters of John's charter. 
The points in which this reissue differs from earlier and later charters are shown 
in the Appendix, in the footnotes to the text of 1225. 



148 HISTORICAL SEQUEL TO MAGNA CARTA 

Chapter 44, generally regarded as replacing chapter 12 
of 1 2 15, declares that scutages should be taken in future 
as they had been wont to be taken under Henry 11. If, as 
has already been suggested, the scutage question was the 
immediate cause of the revolt of 12 15, the importance and 
difficulty of this subject are obvious. Professor Adams ^ 
thinks that the leaders in 121 7, at their wits' end for a 
solution, fell back on a vague, non-committal formula as 
" an effort of despair." Yet the old rates of scutage could 
still be read in the Exchequer Rolls, and the practice of 
a reign that had closed only twenty-six years before must 
have been familiar to many others besides the aged Marshal 
who set seal to the Charter. In reality John's innovations 
were now swept away ; these included the habit of making 
an annual tax of what was meant for special emergencies, 
the assessment under the Inquest of 12 12, the demand for 
scutage and service cumulatively, and, above all, the high 
rate of three marks per knight's fee.^ 

The essence of the barons* demands in 1217 must un- 
doubtedly have been the return to the normal maximum 
rate of 2 marks. The substitution of this reference to the 
usage of Henry for the discarded chapters 12 and 14 of 
John's Charter (which made " common consent " necessary 
for all scutages, whatever the rate) was a natural com- 
promise; and the barons in agreeing to it were justified 
in thinking, from their own medieval point of view, that 
they were neither submitting to unfair abridgments of their 
rights, nor yet countenancing reactionary measures hurtful 
to the growth of liberty .^ Yet when this alteration is 
viewed by modern eyes, in the light cast by the intervening 
centuries of constitutional progress, the conclusion suggests 
itself that, unconsciously, retrograde tendencies were at 

^ Origin^ 260. 

2 Pollock and Maitland, I. 25011., suggest that this chapter absolved under- 
tenants from the obligation of personal attendance in the army. 

2 Mr. Hubert Hall {Eng. Hist. Rev.y IX. 344) takes a different view, considering 
that a reduction of scutages to the old rate of Henry II. was impossible; he speaks 
of " the astounding and futile concession in c. 44 of the charter of 12 17." The 
clause is neither astounding nor futile if we regard it as a promise by Henry III. 
that he would not exact more than two marks per fee without consent^ and if we 



REISSUES AND CONFIRMATIONS 149 

work. All mention of the Commune Concilium — that pre- 
decessor of the modern Parliament, that germ of all that has 
made England famous in the realm of constitutional laws 
and liberties — disappears. If (as it w^as once the fashion to 
maintain) the control of taxation by a national assembly, the 
conception of representation, and the indissoluble connec- 
tion of these two principles with each other, really found 
place in Magna Carta in 12 15, they were ejected in 12 16, 
and failed to find a champion in 1217 to demand their 
restoration. 

A modern statesman, with a grasp of constitutional 
principles, would have seized the occasion of the revision 
of the Charter, to define the functions of the Great Council 
with precision and emphasis. He would not lightly have 
thrown away the written acknowledgment implied in 
chapters 12 and 14 of 12 15 — in the germ, at least — of the 
right of a national council to control the levying of taxes. 
The magnates in 12 17 were content, however, to abandon 
abstract principles; they were selling, not indeed their 
birthright, but their best means of gaining new rights from 
the Crown, for " a mess of pottage." 

Such considerations, however, must not be pressed too 
far; no one seriously thought in 1217, any more than in 
1 2 16, of dispensing with future meetings of the feudal 
tenants in Commune Concilium. Great Councils con- 
tinued to meet with increasing frequency throughout the 
reign of Henry III., and the consent of the magnates was 
habitually asked to scutages even at a lower rate than 
that which had been normal in Henry II.'s reign. Some- 
times such consent was given unconditionally; sometimes 
in return for a new confirmation of the Charters; some- 
times a demand was met by absolute refusal — the first dis- 
tinct instance of which seems to have occurred in January, 
1242.1 

Chapters 39, 42 and 43, treating of topics not mentioned 

farther note that it was the practice of his reign to ask such consent from the Com- 
nmne Concilium for scutages even of a lower rate. A levy of los., for example, 
was granted by a Council in 1221. See Stubbs, Const. Hist., II. 33. 

^M. Paris, 581-2; Sel. Chart., 369. 



150 HISTORICAL SEQUEL TO MAGNA CARTA 



in John's Charter, fall (strictly considered) outside the 
scope of this treatise, but a short account of their main 
provisions may prove useful here. Chapter 42, from 
its possible connection with the omitted chapter 25 of 
12 15, may be taken first. The shire court is not to meet 
oftener than once a month ; less often, where local custom 
so ruled it. No sheriff or bailiff is to make his tourn 
through the hundreds oftener than twice a year — after 
Easter and after Michaelmas respectively — and only in the 
accustomed places. Careful provision is made for holding 
view of frankpledge at Michaelmas, with due regard to 
" liberties " upon the one hand, and to the King's peace and 
keeping the tithings full upon the other. Finally, the 
sheriff is not to make " occasions," but shall content himself 
with what he used to have for holding view of frankpledge 
in Henry of Anjou's time — a reference, it would seem, to 
that " Sheriff's aid " which was the cause of a famous 
quarrel in 1163 between Henry and his recently appointed 
Archbishop, Thomas a Becket.^ 

Chapters 39 and 43 link themselves rather with the future 
than the past, showing that new problems were thrusting 
themselves to the front since the days of John — topics round 
which much controversy was to rage. These chapters 
anticipate the principles underlying two famous measures 
of Edward's reign : the statutes of Quia Emptores 2 and 
of Mortmain. 3 Chapter 39 forbade for the future that any 
freeman should give away or sell so much of his land as 
would not leave sufficient to furnish the service due from 
the fief to the feudal lord. 

Chapter 43 marks the growing hostility against the 
accumulation by the monasteries of wealth in the form of 
landed estates. The times were not ripe for a final solution 
of this problem, and the charter only attempted to remedy 
one of the subsidiary abuses of the system, not to abolish 
the main evil. An ingenious expedient had been devised 
by lawyers to enable tenants to cheat their lords out of 
some of the lawful feudal incidents. Religious houses 

1 Sel. Chart. ^ 129. 2 jg Edward I., also known as Westminster III. 

^ 7 Edward I., also known as the Statute de religiosis. 



I 



REISSUES AND CONFIRMATIONS 151 

made bad tenants, since, as they never died, the lord of 
the fief was deprived of wardship, relief, and escheat. 
This was not unfair, provided the transaction was bona fide. 
Sometimes, however, collusive agreements were made, 
whereby a freeholder bestowed his lands on a particular 
house, which then subinfeudated the same subjects to the 
original tenant, who thus got his lands back, but now 
became tenant of the church, not of his former lord. The 
lord was left with a corporation for his tenant ; and all the 
profitable incidents would, under the new arrangement, 
accrue to the church. Such expedients were prohibited, 
under pain of forfeiture, by chapter 43 of the reissue of 
1217; and this prohibition was interpreted liberally by the 
lords in their own favour.^ 

The only remaining provision that calls for comment is 
the " saving clause " in chapter 46, intended, perhaps, to 
cover the gaps left in the Charter as conceived in 12 15, by 
the decision not to restore some of the duhitahilia of 1216 : 
this chapter reserves to archbishops, bishops, abbots, 
priors, templars, hospitallers, earls, barons, and all other 
persons, cleric and lay, the liberties and free customs they 
previously had. The vagueness of this provision deprived 
it of value. 

These were the main alterations made in 121 7 in the 
tenor of the Great Charter. This reissue is of great 
importance, since it represents practically the final form 
taken by the Charter. On 22nd February, 12 18, copies 
of the Great Charter, in this new form, were sent to the 
sheriffs to be published and enforced. In the writs accom- 
panying them, the special attention directed to the clause 
against unlicensed castles shows the importance attached 
to their demolition.^ These remained in 1217, as in 1154, 
a result of past civil war, and a menace to good govern- 
ment in the future. It was the aim of every efficient ruler 
to abolish all fortified castles — practically impregnable in 
the thirteenth century when artillery was unknown — 
except those of the King, and to see that royal castles were 
under command of castellans of approved loyalty. John 

1 See Pollock and Maitland, I. 314. ^See Rot. Claus., I. 377. 



152 HISTORICAL SEQUEL TO MAGNA CARTA 

had placed his own strongholds under creatures of his 
own, who, after his death, refused to give them up to his 
son's Regent. The attempt to dislodge these soldiers of 
fortune, two years later, led to new disturbances in which 
the famous Falkes de Breaut^ played a leading part.^ The 
destruction of " adulterine " castles and the resumption of 
royal ones were both necessary accompaniments of any 
real pacification. 

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

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

(III.) Reissue of 1225.4 Henry's second Charter, like his 
first, had been authenticated by the seals of the Legate 
and the " Rector." The objection to providing a seal of 
Henry's own w^as that it might be used to prejudice the 
royal prerogatives by alienating Crown lands and fran- 

iStubbs, Consf. Hist., II. 32. "^Qi. Adams, Origin, 258-260. 

^ New Rynier, I. 147, 150. ^See text in Appendix. 



REISSUES AND CONFIRMATIONS 153 

chises during the King's minority. But, shortly before 
Gualo left England, his task as Legate well done, instruc- 
tions were given to a goldsmith to prepare a royal seal of 
silver, 5 marks in weight. Apparently the first use to 
which it was put was to attest letters patent, issued after 
Michaelmas, 12 18, warning all men that no grant in per- 
petuity was to be sealed with it till the King came of age.^ 

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

It was not, apparently, until December, 1223, that the 
Pope's declaration of the partial ending of Henry's non- 
age was given effect to, with consent of the Council; and 
on 13th January, 1224, Henry was asked by Stephen 
Langton for a new confirmation of the Charters.^ In 
the ensuing debate, William Brewer answered for the 
King : " The liberties you ask ought not to be observed 
of right, because they were extorted by force," words which, 
coming from a royal favourite, were sufficient to justify 
suspicion. When the Archbishop had rebuked this rash 

^See Norgate, Minority, 102; Stubbs, Const. Hist., II. 30. Annals of 
Waverley, 290, speak of a reissue of the charters about this date ; but this 
probably results from confusion with what happened a year earlier. 

"^ New Ryiner, I. 168; Rot. Claus., I. 569. 

^ R. Wendover, IV. 84, who dates the demand a year earlier. Miss Norgate's 
chronology is here followed [Minority, 215 n.). The request would be a natural 
corollary to the King's coming of age. There may have been special reasons for 
uneasiness, e.g. the suspicions aroused by the recent inquest, the resumption of 
royal castles from their former wardens, and the Crown's need of increased sources 
of taxation. See Adams, Origin, 281 n. ; Turner, Trans. R.H.S., I. 205 ff. 
Miss Norgate {Ibid. 215) suggests that Langton desired some modification of the 
terms of the charter of 121 7. 



154 HISTORICAL SEQUEL TO MAGNA CARTA 

adviser : " William, if you loved the King, you would not 
endanger thus the peace of his realm," the young King 
said : " We have all sworn these liberties, and what we 
have sworn we are bound to keep."i 

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

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

^R. Wendover, /did. 

2 Miss Norgate {Minority, 262), for reasons not fully explained, speaks of this 
purchasing of admitted rights by payments of hard cash as an "irretrievable 
blunder." Does she not neglect, however, the effect of the legal doctrine of 
* ' valuable consideration " and the force underlying Brewer's argument that earlier 
charters were voidable because granted under duress ? 

3 Dr. Stubbs thinks that in avoiding one danger, a greater was incurred. " It 
must be acknowledged that Hubert, in trying to bind the royal conscience, forsook 
the normal and primitive form of legislative enactment, and opened a claim on the 
king's part to legislate by sovereign authority without counsel or consent." {Consi. 
Hist., 11. 37.) This seems to exaggerate the importance of an isolated precedent, 
the circumstances of which were unique. The confirmation was something far 
apart from an ordinary " legislative enactment." It had been asked and paid for. 



REISSUES AND CONFIRMATIONS 155 

The prominence given to this feature brings the trans- 
action embodied in the reissue of 1225 (as compared with 
the original grant of 12 15) one step nearer the legal cate- 
gory of "private bargain." In another important new 
clause — founded probably on a precedent taken from 
chapter 61 of John's Charter — Henry is made to declare : 
" And we have granted to them for us and our heirs, that 
neither we nor our heirs shall procure any thing whereby 
the liberties in this charter shall be infringed or broken ; 
and if any thing shall be procured by any person contrary 
to these premises, it shall be held of no validity or effect." 
This provision was clearly directed against future papal 
dispensations; the clause, however, was diplomatically 
made general in its terms. 

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

This third reissue brings the story of the genesis of 
the Great Charter to an end. It marked the final form 
assumed by Magna Carta; the identical words were then 
used which afterwards became stereotyped and were con- 
firmed, time after time, without further modification. It 
is this Charter of 1225 which (in virtue of the confirmation 
of Edward I.) still remains on the statute book.* 

Henry, however, was not yet, in 1225, fully of age; and 
suspicions seem still to have been entertained as to what 
would be his attitude when he became of full age for all 
purposes. It w^as apparently in January, 1227, that the 

1 A few minor alterations, such as the omission of the clause against unlicensed 
castles (now unnecessary) and some verbal changes need not be mentioned. A 
list of these is given by Blackstone, Great Charter^ 1. 

2 See Blackstone, Ibid.^ xlvii. to 1. ^ Ibid. 

* One slight exception should be noted. In one point of detail a change had 
occurred between 1225 and 1297 ; the rate of relief payable from a barony had been 
reduced from ;^I00 to 100 marks. See infra, under chapter 2. 



156 HISTORICAL SEQUEL TO MAGNA CARTA 

Council authorized the King to issue writs to his sheriffs 
that all grants of lands, tenements, or liberties, to be held 
valid, must be confirmed under Henry's seal. Writs in 
these terms went forth on 21st January. This was tanta- 
mount to an official declaration that the minority was 
ended. ^ 

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

Yet he was far from scrupulous in observing the letter 
of their provisions : there was good warrant for the com- 
plaint contained in article 7 of the Petition of 1258,* that 
Henry broke his bargain, by extending the forests beyond 
the boundaries to obtain which the fifteenth had been paid. 
The process was begun by the issue of letters close, on 9th 
February, 1227.5 Henceforward, Henry's attitude towards 
the charters was a settled one : he confirmed them with a 

^ A bull of Gregory IX., dated 13th April, 1227, confirmed this. See Blackstone, 
Great Charter^ li., and Stubbs, Const, Hist., II. 39. 
2 See Powicke, Eng. Hist. Rev., XXIII. 221. 

^ R. Wendover, IV. 140, is apparently the source of the error. See Norgate, 
Minority, 266 n. 
^Sel. Chart., 383. 

^See Rot. Claus., II. 169. The best account is in Turner's Select Pleas of the 
Forest, pp. xcix. to cii. , who gives a full and convincing account of Henry's pro- 
cedure and motives. " The king neither repudiated the Charter of the Forest nor 
annulled the perambulations vi^hich had been made in his infancy. He merely 
corrected them after due inquiry." See also Adams, Origin, 283 n. 



REISSUES AND CONFIRMATIONS 157 

light heart when he could obtain money in return, and 
then acted as though they did not exist. 

(IV.) Confirmations (1237 to 1297). After the close of 
Henry's minority history is concerned not with reissues of 
the Charter but with confirmations. Matthew Paris refers 
to the circumstances under which the first of these was 
executed on 28th January, 1237 : as the express condition 
of a grant of " a thirtieth part of the kingdom, to wit of 
all moveables," Henry promised that thenceforward the 
'' lihertates Magnae Cartae " should be inviolably observed. ^ 
This Charter differs fundamentally from those of 12 15, 
1216, 1217 and 1225. It does not rehearse the substance of 
any one of the " liberties " it confirms, but contents itself 
with a brief reference : " We have granted and by this our 
charter confirmed ... all liberties and free customs con- 
tained in our charters which we caused to be made to our 
subjects during our minority, to wit as well in magna carta 
nostra as in carta nostra de foresta." 2 Even with the long 
list of witnesses, occupying half of its extent, this document 
is a small one when compared with the voluminous parch- 
ments of earlier grants. It has been suggested ^ that the 
marked contrast in size may have given rise to the practice 
of alluding to the earlier charter (whether of John or Henry) 
as Magna Carta, in distinction from the new parva cartaA 

In support of the suggestion, it may be argued that the 
phrase " Magna Carta " is never used by Roger of Wen- 
dover, and that its first appearance in the narrative of 
Matthew Paris is in the passage just quoted, suh anno 
1237, " carta lihertatum " being the usual description. The 
words " Magna Carta " appear a second time in his account 
of a famous debate in 1242,^ where pointed reference is 

^M. Paris, 435; Sel. Chart., 326-7. 

2 Its facsimile is given in Statutes of the Realm ; its text in Sel. Chart. ^ 365-6. 

^ByDr. GeoxgQ 'iiitWson, Jtcridical Reviezu, XVII. 137. 

* Henry I.'s charter was also described as "Magna Carta" but not till the 
thirteenth century. Leibermann, Trans. R.H.S., VIII. 21. 

'^M. Paris, 581-2; Sel. Chart., 369-370. Bracton's Notebook (see its Index) 
mentions the Charter eight times under various descriptions, but never as the Great 
Charter. 



158 HISTORICAL SEQUEL TO MAGNA CARTA 

made to the bargain struck in 1237, when Henry conceded 
the liberties contained in " Magna Carta " in return for the 
thirtieth of moveables " et hide fecit eis quandam parvam 
cartam suam." The antithesis is here emphatic. 

The adoption of this parva carta means that the Charter 
had become stereotyped as it stood in 1225, and no longer 
moved with the times. For ten years previous it had, like 
a living thing, adapted itself to changing needs and 
grievances. The new style possibly corresponds with a 
new attitude on the part of both King and barons. Henry 
had abandoned any intention of repudiating the Charter 
or even of infringing its specific promises as to wardships, 
reliefs or the like : his practice was to evade its spirit, 
while observing its letter. The opposition, on their part, 
may unconsciously have come to consider the Charter's 
value to lie, not in its specific clauses, but in its assertion 
of the existence of a fixed body of law to which successful 
appeal could be made against the King's caprice. Changes 
in the texture of that law are no longer reflected in re- 
affirmations of the Charter; but must be sought for in a 
series of supplementary documents such as those of 1258, 
1297, 1300, 131 1, 1406 and 1628. 

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

In 1265 Simon de Montfort, during his brief period of 
power, exacted from Henry and his son a new confirma- 
tion, dated 14th March, notable for its clause empowering 
" all of the realm to rebel against us and use their utmost 
resources and efforts to our hurt " in imitation of chapter 61 
of John's grant. After Simon's overthrow and death, the 
King and the young Edward, of their own initiative, 
affirmed the charters by chapter five of the Statute of 
Marlborough (1267). Of the confirmations of Edward's 

iBlackstone, Greai Charter, 70-72 ; Stubbs, Sel. Chart., 373. 




REISSUES AND CONFIRMATIONS 159 

reign, it is only necessary to mention the emphatic Con- 
firmatio Cartarum of 1297, accompanied by an Inspeximus 
of the issue of 1225, granted under conditions that are 
well known. It contains new clauses which impose restric- 
tions on the taxing power of the Crown ; and these, to 
some extent, take the places of those chapters (12 and 14) 
of the original grant of John, which had been omitted in 
all intervening grants. 

Of later confirmations, Coke ^ has counted 15 under 
Edward III., 8 under Richard II., 6 under Henry IV. and 
one under Henry V. Of these, only the statute of 1369 
(42 Edward III. c. i) requires special notice : it commands 
that " the Great Charter and the Charter of the Forest be 
holden and kept in all points, and if any statute be made 
to the contrary that shall be holden for none." Parliament 
in 1369 thus sought to deprive future Parliaments of the 
power to effect any alterations upon the terms of Magna 
Carta. Yet, if Parliament in that year had the power to 
add anything, by a new legislative enactment, to the ancient 
binding force of the Great Charter, it follows that succeed- 
ing Parliaments, in possession of equal powers, might 
readily undo by a second statute what the earlier statute 
had sought to effect. If Parliament had power to alter the 
sacred terms of Magna Carta, it had power to alter the less 
sacred statute of 1369 which declared it unalterable. The 
terms of that statute, however, are interesting as perhaps 
the earliest example on record of the illogical theory that 
the English Parliament might so use its present legislative 
supremacy as to limit the legislative supremacy of other 
Parliaments in the future. 2 

II. Magna Carta and the Reforms of Edward I. 

The Great Charter, alike from its excellences and its 
defects, exercised a potent influence throughout the two 
succeeding reigns. It is hardly too much to say that the 
failure of Magna Carta to provide adequate machinery for 

^ Second Institute, p. i. 

2 Many further details will be found in Bemont, Chartes, xxx.-lxx., and 
authorities there cited. 



i6o HISTORICAL SEQUEL TO MAGNA CARTA 

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

At the same time, the attitude of Henry III. indicates 
an advance upon that of John. Henry, on attaining 
m.ajority, had confirmed the charters freely and on his 
own initiative, and found himself thereafter unable openly 
to repudiate the bargain he had made. Yet the settlement 
between Crown and baronage was nominal rather than 
real : the King was bound by bonds of parchment which 
he could break at pleasure. In the absence of sanctions 
for its enforcement, the Charter became an empty expres- 
sion of good intentions : no constitutional expedient 
existed to obviate a final recourse to the arbitrament of 
civil war. Thus, part of the blame for the recurring and 
devastating struggles of the reign of Henry must be 
attributed to the defects of the Great Charter. 

The whole interest of the reign, indeed, lies in the 
attempts made to evolve adequate machinery for enforcing 
" the liberties." Experiments of many kinds were tried in 
the hope of turning theory into practice. The system of 
government outlined in the Provisions of Oxford of 1258, 
for example, reproduced the defects of the scheme contained 
in chapter 61 of the Great Charter, and added new defects 
of its own. The baronial committee was not designed to 
enter into friendly co-operation with Henry in the normal 
work of government, but rather to supersede entirely certain 
of the royal prerogatives. No glimmering was yet apparent 
of the true solution afterwards adopted with success : it 



THE REFORMS OF EDWARD I, i6i 

was not yet realized that the best way to control the Crown 
was through the agency of its own Ministers. 

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

The personal humiliation of Simon, however, assured 
the ultimate triumph of the cause he had made his own. 
Prince Edward, from the moment of his brilliant victory 
at Evesham, was not only supreme over his father's 
enemies, but also within his father's councils. He found 
himself in a position to realize some of his political ideals ; 
and he adopted as his own, the main constitutional con- 
ceptions of his uncle Earl Simon, who had been his friend 
and teacher before he became his deadliest enemy. 

Edward Plantagenet, alike when acting as chief adviser 
of his aged father and after he had succeeded to his throne, 
not only accepted the main provisions of the Great Charter,^ 

^ The best proof of this will be found in a comparison of Magna Carta with the 
statute of Marlborough, and the chief statutes of Edward's reign, notably that of 
Westminster I. 



i62 HISTORICAL SEQUEL TO MAGNA CARTA 

but adopted also a new scheme of government which formed 
their necessary counterpart. The very fact of the adoption 
of Earl Simon's ideals by the heir to the throne altered 
their chances of success. All such schemes had been fore- 
doomed to failure so long as they emanated from an 
opposition leader, however powerful ; but their triumph was 
assured when accepted by the monarch himself. Under 
the protection of Edward I. — the last of the four great 
master-builders of the constitution — the Commune Con- 
cilium of the Angevin kings grew into the English Parlia- 
ment. This implied no sudden dramatic change, but a 
long process of adjustment, under the guiding hand of 
Edward. 

The main features of his scheme may be briefly sum- 
marized : Edward's conception of his position as a national 
king achieving national ends, the funds necessary for 
which ought to be contributed by the nation, led him to 
devise a system of taxation which would fill the Exchequer 
while avoiding unnecessary friction with the tax-payer. 
In broadening the basis of finance, he was led to broaden 
the basis of Parliament; and thus he advanced from the 
feudal conception of a Commune Concilium, attended only 
by Crown tenants, towards the nobler ideal of a national 
Parliament containing representatives of every community 
and every class in England. The principle of representa- 
tion (foreshadowed in a vague way for centuries before the 
Conquest in English local government), now found a home, 
and, as it proved, a permanent home, in the English 
Parliament. 

The powers of this assembly widened almost auto- 
matically, with the widening of its composition. To its 
original function of taxation, legislation was soon added. 
The functions of hearing grievances and of proffering 
advice had, even in the days of the Conqueror, belonged 
to such of the great magnates as were able to make their 
voices heard in the Curia Regis; and similar rights 
were gradually extended to the humbler members of the 
augmented assembly. The representatives of counties and 
towns retained rights of free discussion even after Parlia- 



THE REFORMS OF EDWARD I. 163 

ment had split into two Houses. These rights, fortified 
by command of the purse strings, tended to increase, until 
they secured for the Commons some measure of control 
over the executive functions of the King, varying in extent 
and effectiveness v^ith the weakness of the King, with his 
need of money, and with the political situation of the hour. 

The new position and powers of Parliament logically 
involved a corresponding alteration in the position and 
powers of the smaller but more permanent council or Con- 
cilium Ordinariuin (the future Privy Council). This had 
long been increasing in power, in prestige, and in inde- 
pendence, a process quickened by the minority of Henry 
ni. The Council was now strengthened by the support 
of a powerful Parliament, usually acting in alliance with 
the leaders of the baronial opposition. The Council was 
recruited from Parliament, and the appointment of King's 
ministers was influenced by the proceedings in the larger 
assembly. 1 

The Council thus became neutral ground on which the 
conflicting interests of King and baronage might be dis- 
cussed and compromised. Wild schemes like that of 
chapter 61 of Magna Carta or that typified in the Committee 
appointed by the Mad Parliament of 1258, were now 
unnecessary. The King's own ministers, backed by Parlia- 
ment, became an adequate means of enforcing the constitu- 
tional restraints embodied in royal Charters. The problem 
was thus, for the time being, solved. The bargain made 
at Runnymede between the English monarch and the 
English nation found its counterpart and sanction, before 
the close of the thirteenth century, in the conception of a 
King ruling through responsible ministers and in harmony 
with a national Parliament. Edward Plantagenet, though 
merely the unconscious instrument by whose agency the 
new conception was for a time partially realized, yet merits 
the gratitude of posterity for his share in the elabora- 
tion of a working scheme of government which took the 

^The doctrine that the Commune Concilium should have some voice in the 
appointment of Ministers had been acted upon on several occasions even in the 
reign of Henry III. See Stubbs, Const. Hist., II. 41. 



i64j^ HISTORICAL SEQUEL TO MAGNA CARTA 

place of the clumsy expedients designed as constitutional 
sanctions in 1215. The ultimate triumph of the principles 
underlying Magna Carta was assured not through any 
executive committee of rebellious barons, but through the 
constitutional machinery devised by Edward Plantagenet. 



PART V. 

MAGNA CARTA: ORIGINAL VERSIONS, PRINTED 
EDITIONS AND COMMENTARIES. 

I. Manuscripts of Magna Carta and Relative Documents. 

The barons who had forced the Great Charter on King 
John were determined that its contents should be widely 
known and permanently preserved. It was not sufficient 
that the great seal should be formally impressed upon one 
parchment. Those who compelled John to submit were 
not content even with the execution of its terms in dupli- 
cate or in triplicate : copies w^ere to be distributed throughout 
the land, to be preserved in important strongholds and 
among the archives of the chapters of cathedral churches.^ 

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

1 For methods of publishing Great Charters see R. L. Poole, Eng: Hist. Rev. 
XXVIII. 444 (July, 1913) ; and infra under c. 62. 

2 The accompanying letter, dated loth May, 1630, is also preserved in the British 
Museum, as "Cotton, Julius, C. III. Fol. 191." 



i66 MAGNA CARTA 

Like the three others still extant, it is written continu- 
ously, though with many contractions, in a neat, running, 
Norman hand. Some omissions seem to have been made 
in the body of this version and to have been supplied at 
the foot. These are five in number.^ It is possible to 
regard them as corrections of clerical omissions due to 
carelessness or hurry in engrossing the deed ; but the fact 
that one of the additions is distinctly in the King's favour 
raises a presumption that they embodied additions made 
as afterthoughts to what had been originally dictated to 
the engrossing clerk, and that they were inserted at 
the King's suggestion before he would adhibit the great 
seal. 

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

(2) The British Museum Magna Carta, number two — 
cited as "Cotton, Augustus, II. 106." ^ The early history 
of this document is unknown, but it came into the posses- 
sion of Mr. Humphrey Wyems, and by him was presented 
to Sir Robert Cotton on ist January, 1628-9. Unlike the 
other Cottonian copy, this one is happily in an excellent 

^ These are carefully noted among the variations described by the editors of the 
Charters of Liberties forming Part I. of the first volume of the Statutes of the Realm. 
These addenda are (i) at the end of c. 48, ^^ per eosdem, ita quod nos hoc sciamus 
prius, vel justiciarius noster, si in Anglia nonfuerimus^ " providing that the King 
should receive intimation of all forest practices branded as " evil " before they are 
abrogated ; (2) ; two small additions, near the beginning of c. 53, («:), *' et eodem 
modo dejusticia exhibenda," and {b) *^ vel remansuris forestis'^ ; (3) in c. 56, these 
four words, *' in Anglia vel in PVallia" ; and (4) in c. 61 the words '■^ in per- 
petuufn" after ^^ gaudere." In the 2nd British Museum MS. three of these 
addenda appear at the foot, viz. (i), {2a) and {2b) ; but the words of (3) and (4) 
are incorporated in the body of that MS. 

* Reproductions of this are sold at the British Museum for 2s. 6d. 



MANUSCRIPTS AND RELATIVE DOCUMENTS 167 

state of preservation ; but there is no trace left of any seal.^ 
Three of the five addenda inserted at the foot of the copy- 
previously described are found in a similar position here; 
but the substance of the two others is included in the body 
of the deed. On the left-hand margin, titles intended to 
be descriptive of several chapters occur in a later hand. 
Thus for the preservation of two original copies of the 
national charter of liberties the nation is indebted to Sir 
Robert Cotton. Several authors ^ gravely record how Sir 
Robert discovered " the palladium of English liberties " in 
the hands of his tailor at the critical moment when scissors 
were about to transform it into shapes for a suit of clothes. 
This detail is a fable, since both manuscripts of Magna 
Carta in the Cottonian collection are otherwise accounted 
for. 

(3) The Lincoln Magna Carta, This copy is under the 
custody of the Dean and Chapter of Lincoln Cathedral, 
where it has lain for many centuries. The word " Lin- 
colnia " is endorsed in a later hand in two places on folds 
of the parchment. It has no corrections or additions 
inserted at the foot, but embodies in their proper places 
all those which occurred in the versions already discussed. 
Further, it is executed with flourishes and in a more 
finished manner : the inference is that it took longer to 
engross. The Record Commissioners, in preparing the 
Statutes of the Realm, considered this version of superior 
authority to the others and have chosen it for their engrav- 
ing published in 1810 in that valuable work, and also in 
the first volume of their edition of Rymer's Foedera in 
1816.3 

(4) The Salisbury Magna Carta — preserved in the archives 

^ " The fold and label are now cut off, though it is said once to have had slits in 
it for two seals, for which it is almost impossible to account ; but Dr. Thomas 
Smith, in his Preface to the Cottonian Catalogue, Oxford, 1695, f"oJio. states that 
they were those of the barons" (Thomson, Magna Carta, 425). The facsimile 
published by the Trustees of the British Museum shows slits for three seals. 

2 See Isaac D'Israeli, Curiosities of Literature, I. 18, and Thomson, Magna 
Carta, 424. 

^ The engraving was executed to their order by James Basire. 



i68 MAGNA CARTA 

of the Cathedral there. The early history of this manu- 
script has not been traced, but its existence was known 
at the close of the seventeenth century.^ Sir William 
Blackstone, in April, 1759,^ instituted a search for it, but 
without success — his inquiries being met with the state- 
ment that it had been lost some thirty years before, during 
the execution of repairs in the Cathedral library. As its 
disappearance had taken place during the tenure of the see 
by Gilbert Burnet, his political adversaries accused him of 
appropriating it — an undoubted calumny, as will be here- 
after explained. The document had not been re-discovered 
in 1800 when the royal commission published a report of 
Its inquiries for national records.^ Two sub-commissioners 
visited Salisbury in 1806 in search of it, but obtained no 
satisfaction. It seems, however, to have been re-discovered 
within the next few years, since it is mentioned in a book 
published in 1814,^ and it is now exhibited to the public 
by order of the Dean and Chapter of Salisbury Cathedral. 
It resembles the Lincoln copy both in its fine, leisurely 
penmanship and also in the absence of additions at the 
bottom of the parchment.^ 

II. Comparison of the Originals, Prior to Sir William 
Blackstone's work, extraordinary confusion seems to have 
prevailed concerning the various Charters of Liberties. 
Not only was John's Magna Carta confused with reissues 
by Henry ; but these latter were known only from an official 
copy of the Charter of 1225 contained in the Inspeximus 

^ See James Tyrrell, History of England ^ Vol. II. 821 (1697-1704). 

"^ Blackstone, Great Charter, p. xvii. 

'See Report (1800), p. 341. 

* Dodsworth, Historical Account of the Cathedral^ 202. 

^ It is unnecessary to treat in detail of the copies of the charter not authenticated 
by John's Great Seal, though some of these are of value as secondary authorities. 
The four most important are {a) a copy appearing in the Register of Gloucester 
Abbey, ijb) the Harleian MS., British Museum No. 746 (which also contains the 
names of the twenty-five Executors in a hand probably of the reign of Edward I. ). 
{c) in the Red Book of the Exchequer. There is also {d) an early French version, 
printed in D'Achery, Spicilegium^ Vol. XII. p. 573, together with the writ of 27th 
September addressed to the Sheriff of Hampshire. See Blackstone, Great Charter y. 
p. xviii., and Thomson, Magna Carta, pp. 428-430. 



MANUSCRIPTS AND RELATIVE DOCUMENTS 169 

of the twenty-eighth year of Edward I. Neither Madox^ 
nor Brady ^ was aware of the existence of any one of the 
four originals; and no mention is made of them in the 
first edition of Rymer's Foedera, which appeared in 1704. 
Mr. Tyrrell, indeed, seems to have known of the second 
original in the British Museum and also of the Salisbury 
version.^ Mr. Care* showed no clear knowledge of the 
various manuscripts, though he mentioned the existence of 
several. Even Blackstone in 1759 collated only the two 
Cottonian copies, since he failed to find that of Salisbury, 
and was unaware of the existence of the Lincoln manu- 
script.^ 

As these four versions are practically identical in their 
substance, no important question seems to be involved in 
the discussion as to whether any one of them has greater 
authority than the others. The R ecord Commissioners con- 
sidered that the Lincoln copy was the first to be completed 
(and therefore that it possessed special authority), because 
it contained no insertions at the foot of the instrument. 
Yet it seems more plausible to argue that this very 
immunity from clerical errors, or from additions made 
after engrossment, proves that it was of later and less 
hurried execution than the others, and therefore of less 

^Thomas Madox, Fii-ina Burgi (1726). On p. 45, Madox refers only to the 
Inspeximus of Edward I. 

2 Robert Brady, Complete History of England, p. 126 of Appendix to Vol. I. 
(1685), takes his text of the Charter from Matthew Paris ** compared with the 
manuscript found in Bennet College Library," i.e. Corpus Christi, Cambridge. 

'James Tyrrell, History of England (1697-1704). In p. 9 of Appendix to 
Vol. II. p. 821, Tyrrell prints a text of John's Charter founded on that of M. Paris, 
collated with those two originals. 

* Henry Care, English Liberties in the Freeborn stihjects'' inheritance ; containing 
Magna Charta, etc. (1719), p. 5. The first edition, with a somewhat different 
title, is dated 1691. 

5 Strangely enough, Sir Thomas Duffus Hardy, so recently as 1837, in publishing 
his Rotuli Chartarum (Introduction, p. ii. note 5) declared that no original of 
John's Charter existed ; "notwithstanding all the care taken by multiplication of 
copies, it is singular that no contemporary copy of King John's Magna Carta has 
yet been found." The Lincoln MS. he dismissed as "certainly not of so early a 
date." He further reasserts the fallacy, exposed by Blackstone eighty years 
earlier, that John had issued a separate Carta de Foresta. 



170 MAGNA CARTA 

authority, if any distinction is permissible. Mr. Thomson 
has much ground for his contention, in speaking of the 
fire-marked version, that " the same circumstances may 
probably be a proof of its superior antiquity, as having 
been the first which was actually drawn into form and 
sealed on Runnymede, the original whence all the most 
perfect copies were taken." ^ 

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

III. Articles of the Barons. Of hardly inferior interest 
is the parchment which contains the heads of agreement 
made between John and the rebels on 15th June, 12 15. 
This is now in the British Museum, cited officially as 
"Additional MSS. 4838." The seven centuries that have 
passed over it have left surprisingly few traces ; it is legible 
throughout, and still bears the impression of John's seal 
in brown wax. It was apparently deposited in Lambeth 
Palace, where it remained until the middle of the seven- 
teenth century. Archbishop Laud, when threatened with 
impeachment, thought it prudent to set his papers in order; 
and on i8th December, 1640, he dispatched for that purpose 
to his episcopal palace, his friend Dr. John Warner, 
Bishop of Rochester. A few hours later, Laud was com- 
mitted to custody of Black-Rod, and an official messenger 
was sent by the House of Lords to seal up his papers. 
Bishop Warner had, meanwhile, escaped with the Articles 
of the Barons. He kept this till he died, and at his death 
it passed to one of his executors named Lee, and from him 
to his son Colonel Lee, who presented it to Gilbert Burnet. 
When the Salisbury Magna Carta disappeared, Burnet 
was suspected of appropriating it. What gave apparent 
weight to these misrepresentations of his political opponents 
was that special facilities had been granted him to search 
public records in the prosecution of his historical labours, 
and that he actually had in his possession — quite lawfully, 

^ Thomson, Magna Carta, 422. 



MANUSCRIPTS AND RELATIVE DOCUMENTS 171 

as we know — the Articles of the Barons, which was con- 
fused by the carelessness of early historians with Magna 
Carta itself. The calumny was so widely spread that 
Burnet thought it necessary formally to refute it, explain- 
ing that he had received the Articles as a gift from Colonel 
Lee : — " So it is now in my hands, and it came very fairly 
to me." 1 

Bishop Burnet left it as a legacy to his son Sir Thomas 
Burnet; and on his death it passed to his executor David 
Mitchell, whose permission to print it Blackstone obtained 
in 1759. It was purchased from Mr. Mitchell's daughter 
by another historian, Philip, second Earl of Stanhope, who 
presented it to the British Museum in 1769. It is now 
exhibited along with the two Cottonian copies of Magna 
Carta. The Record Commissioners have reproduced it in 
Statutes of the Realm in 1810, and also in the New Rymer 
in 1816.2 

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

IV. The so-called " unknown Charter of Liberties." At 
Paris is preserved a copy of what looks like a charter 
granted by John, but irregular in its form. This document 
is preserved among the Archives du Royaume in the Section 
Historique and numbered J. 655.^ A copy of this copy 
was discovered at the Record Office in London by Dr. 
Horace Round in 1893. Before that date it seems to have 
been practically unknown to English historians, although 
it had been printed by a French writer thirty years earlier.^ 
As the interpretation of this document has proved a 

^See Burnet's Own Time, I. 32 (edition of 1724). 

2 Reproductions are sold by the British Museum at 2s. 6d. 

'■^ Cf. st4pra, p. 39, and Blackstone, Greai Charter, xvii, 

^ See the account by Mr. Hubert Hall, Eng. Hist. Rev.^ IX. 326. 

^Teulet, Layettes du Trisor des Chart es, I. p. 423 (1863). 



172 MAGNA CARTA 

puzzle attracting many to attempt its solution, it may be 
well to give a brief analysis of its tenor.^ The text of the 
supposed Charter is preceded, in the manuscript (which is 
in a French hand of the early quarter of the thirteenth 
century), by a copy of the Charter of Liberties of Henry I., 
from which it is separated by this sentence, in Latin : 
" This is the Charter of King Henry, by which the barons 
seek their liberties, and these following are granted by King 
John," words which invite comparison with the heading of 
the Articuli Baronum, and suggest that the document under 
description may have formed a link between Henry L's 
charter and these Articuli. 

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

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

At least seven solutions have been attempted of the pro- 
blems raised by this manuscript, (i) Dr. Round, in com- 
municating his discovery to the English Historical Review, 
maintained that the document was a copy, in a mangled 

^ See text in Appendix. 



MANUSCRIPTS AND RELATIVE DOCUMENTS 173 

form perhaps, of a charter actually granted in the year 
1 2 13 by King John to the northern barons, containing 
concessions which they had agreed to accept in satisfaction 
of their claims. ^ (2) Mr. Prothero preferred to view it 
as an abortive proposal made by the King early in 12 15 
and rejected by the barons.^ (3) Mr. Hubert Hall dis- 
missed the document as a forgery, describing it as " a 
coronation charter attributed to John by a French scribe 
in the second decade of the thirteenth century " — probably 
between November, 12 16, and March, 12 17, when King 
Philip desired to prove that John had committed perjury 
by breaking his promises, and had thereby forfeited his 
right to the Crown of England.^ 

(4) In the first edition of this work, published in 1905, 
the tentative suggestion was made that the document might 
be a copy of the actual " schedule " which we know from 
Roger of Wendover ^ to have been drawn up by the barons 
prior to 27th April, 12 15, and at that date forwarded to 
John with the demand, under threat of civil war, that he 
should forthwith set his seal to it. In this view the 
schedule would be merely a precursor of the Articles of 
the Barons, with which it had been previously identified. 
The fact that this " schedule " was hurriedly drawn up by 
unskilful hands was suggested as an explanation of the 
peculiar features of the " unknown charter " emphasized by 
Mr. Hall ; its archaisms, its erroneous royal style running 
in the singular, and its transition from the third to the first 
person. (5) Mr. Davis, ^ in rejecting this theory, main- 
tained that the document contained the jottings made by 
some one present while negotiations were actually in 
progress between the barons and John's representatives at 
some date between the drawing up of the Articuli Baronum 
and the sealing of the Great Charter, presumably, there- 
fore, between 15th and 19th June, 12 15. 

(6) Mr. Petit-Dutaillis 6 modifies Mr. Davis's theory 

^Eng. Hist. Rev., VIII. 288-294. ^ Ibid., IX. 117-121. 

^Ibid., IX. 326-335. * Wendover, III. 298, and cf. supra, 33. 

^Eng, Hist. Rev., XX. 719 ff. ^Studies SMpplemeritary, 120 ff. 



174 MAGNA CARTA 

materially. The conference, at which the unofficial note- 
taker was present, must have taken place shortly before 
the framing of the Articuli Baronum, and the note-taker 
himself may have been an emissary of Philip Augustus, 
possibly a spy of humble origin, collecting information in 
furtherance of Philip's designs on England. (7) The 
most recent, detailed, and ingenious theory is that of Dr. 
Ludwig Riess of Berlin, ^ who thinks that a copy of the 
first Henry's Charter was sent to John for convenience of 
reference when the latter, amid the misfortunes of the ill- 
starred campaign of 1 2 14, was trying to make terms with 
the rebellious northern barons, and that jottings subse- 
quently made on the blank space at the foot of the parch- 
ment, as to concessions granted by John, constitute the 
so-called " unknown charter." 

Successive clauses of the document tell the story of its 
genesis — and a romantic story it is. When the northern 
barons met the demand of 26th May, 12 14, for a scutage, 
by the counter demand for a confirmation of Henry Beau- 
clerk's Charter, John's Regent, Peter des Roches, wrote 
to the King, then in Poitou, for instructions, enclosing a 
transcript of Henry's Charter, to which he had appended 
a jotting to remind John of the promise already made on 
28th August, 1 2 13, through Stephen Langton. This note 
forms, in Dr. Riess's theory, clause one of the much dis- 
cussed document. Thereafter a period of haggling ensued 
between John and the distant rebels, with Peter and 
perhaps also the archbishop as intermediaries, the King 
making a careful memorandum from time to time of each 
concession wrung from him by the obduracy of the barons. 
The King is thus the author of clauses 2 to 12 inclusive, 
couched in the informal first person singular, each new 
group opening with the word " adhuc." 

The original document, which thus represented the stages 
of unsuccessful negotiations extending over several months, 
was captured, so it is inferred, by the French. After a 
copy had been made for preservation at Paris, the original 
was sent by Philip to the barons that they might embarrass 

"^ Historische Vierteljahrschrift, 1 910, 449-458. 



MANUSCRIPTS AND RELATIVE DOCUMENTS 175 

John by confronting him with concessions in his own 
handwriting which he now desired to repudiate. When 
Henry's Charter was produced by Stephen Langton at 
Bury St. Edmunds on 4th November, 12 14, it was the royal 
jottings appended to it, not the familiar, century-old 
charter itself, that produced the sensation which modern 
writers have found so hard to explain. 

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

It is beyond doubt, however, that offers and counter- 
offers, of which the schedule of Easter was only one, passed 
to and fro, between March and June of the year 12 15. 
The negotiations of which our document contains a 
record may have taken place between the respective dates 
of the " schedule " and the Articuli. It would be easy to 
explain the presence of a copy in the French archives on 
the assumption that the original was among " the charters 
of liberties" surrendered by Louis in 1217. This trifling 
amendment would meet some of the objections to Dr. 
Riess's theory, which in all essentials seems to be the most 
convincing yet suggested. In any view, the " unknown 
charter " would appear to be a link between the Charter of 
1 100 and the Articuli. 

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



176 MAGNA CARTA 

II. Previous Editions and Commentaries. 

I. Printed Editions of the Text. Prior to 1759, even the 
best informed writers on English history laboured under 
much confusion in regard to the various charters of liberties. 
Few seem to have been aware that fundamental differences 
existed between the charter granted by John and the 
reissues of Henry. Much of the blame must be borne by 
Roger of Wendover, who, in his account of the transactions 
at Runnymede, incorporated, in place of John's Charter, 
the text of the two charters granted by Henry. ^ 

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

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

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

iR. Wendover, III. 302-318. 

2 This date is given by Bemont, Chartes, Ixxi., but Robert Watt in his 
Bibliotheca Britamtica, Thomson, Magna Carta, 450, and Lowndes, Biblio- 
grapher's Manual, 1449, all give the date of the earliest edition as 1514. 

'The substance of this admirable edition, now unhappily scarce, has been 
reproduced in the same author's Tracts (1762). 



PREVIOUS EDITIONS AND COMMENTARIES 177 

(3) A carefully revised text, Magna Carta regis Johannis, 
was published by Dr. Stubbs in 1868; and the various 
charters are also to be found, arranged in chronological 
order, in his well-known Select Charters, first published 
in 1870. 

(4) In 1892, M. Charles Bemont published carefully 
edited texts of the charters of 12 15 and 1225, printing as 
footnotes to the latter the variants of 12 16 and 1217. 

II. Commentaries and Treatises. Within five years of 
the peace made at Runnymede, a minstrel attached to 
Robert of Bethune, one of John's familiars, included an 
incomplete but not inaccurate summary of the Charter in 
his Histoire des dues de Normandie et desrois d'Angleterre, 
supposed to have been composed in 1220.^ This first rude 
commentary has already been alluded to.^ Posterity would 
gladly have bartered it, such as it is, for a few words of 
explanation from one who was well able to speak but pre- 
ferred to keep silence. The discreet biographer of William 
the Marshal excuses himself from drawing upon his inti- 
mate sources of information : he must pass over, he says, 
the war which was in England between the King and his 
barons, for there were too many incidents which it would 
not be honourable to recount.^ 

Later in the century, comes the mysterious medieval 
lawbook known as the Mirror of Justices, complaining of 
" the damnable disregard " of Magna Carta and containing 
a .chapter on that document with some claims to rank as 
a commentary, although it represents the opinions of a 
political pamphleteer rather than those of an unbiassed 
judge. The date of this treatise is still the subject of 
dispute. It has been usual to place it not earlier than 
the years 1307-27, mainly because it makes mention of 
" Edward II." Prof. Maitland, however, dates it earlier, 
maintaining on general grounds that it was " written very 
soon after 1285, ^^d probably before 1290." * He explains 

1 Published in 1840 (edited by F. Michel). "Supra, p. 123. 

3 G. le Mart<chal, 1 503 1 ft. 

* See The Mirror of Justices (edited for the Selden Society by W. J. Whittaker), 
Introduction (by Maitland), xxiii. to xxiv. 

M 



178 MAGNA CARTA 

the reference to " Edward II." as applying to the monarch 
now generally known in England as Edward I., but some- 
times in his own reign known as Edward II., to distinguish 
him from an earlier Edward still enshrined in the popular 
imagination, namely, Edward Confessor. Mr. Maitland 
is not disposed to treat this work of an unknown author 
too seriously, and warns students against " his ignorance, 
political bias, and deliberate lies."^ 

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

Although this commentary, like everything written by 
Coke, was long accepted as a work of great value, its 
method is in reality uncritical and unhistorical. " The great 
lawyer reads into Magna Carta the entire body of the 
common law of the seventeenth century j-^ of which he w^as 
admittedly a master. He seems almost unconscious of the 
changes wrought by the experience and vicissitudes of four 
eventful centuries. The clauses of Magna Carta are merely 
occasions for expounding the law as it stood, not at the 
beginning of the thirteenth century, but in Coke's own day. 
In the skilful hands of Sir Edward, the Great Charter is 
made to attack abuses of James or Charles, rather than 
those of John or Henry. In expounding the judicium 
parium, for example, he explains minute details of proce- 
dure before the Court of the Lord High Steward, and the 
nature of the warrants to be issued prior to arrest of any 
one by the Crown ; while in the clause of Henry's Charter 
which secures an open door to foreign merchants in Eng- 
land " unless publicly prohibited," he discovers a declara- 

^See T/ie Mirror of Justices^ xxxvii. Cf. xlviii. 
2 See Dictionary of National Biography, XL 243. 



PREVIOUS EDITIONS AND COMMENTARIES 179 

tion that Parliament shall have the sole power to issue 
such prohibitions, forgetful that " Parliament " did not 
exist in 12 15, and that the regulation of trade was then 
an exclusive prerogative of the Crown. 

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

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

(4) Daines Harrington published in 1766 his Observations 
upon the Statutes from Magna Charta to 21 James I. This 
book contains some notes on the Charter also founded 
chiefly upon Coke's Second Institute ; his original con- 
tributions are not of outstanding value. 

(6) In 1772 Prof. F. S. Sullivan issued a course of lectures 
under the title An Historical Treatise on the Feudal Law, 
with a Commentary on Magna Charta : " I shall therefore 
proceed briefly to speak to Magna Charta, and in so doing 
shall omit almost all that relates to the feudal tenures, which 
makes the greatest part of it, and confine myself to that 
which is now law."^ 

(7) John Reeves' invaluable History of English Law, 
which appeared in 1783-84, marked the commencement of a 
new epoch in the scientific study of the genesis of English 
law. Treating incidentally of Magna Carta, he shows 

^ Introduction, p. ii. ^ P. 375 of work cited. 



i8o MAGNA CARTA 

wonderful insight into the real purport of many of its pro- 
visions, but the state of historical knowledge when he wrote 
rendered serious errors inevitable. 

(8) In 1829 Richard Thomson published an elaborate 
edition of the charters, combined with a commentary which 
makes no serious attempt to supplement the unhistorical 
explanations of Coke by the results of more recent investi- 
gations. His work is a storehouse of information which 
must, however, be used with caution. 

(9) In many respects, the most valuable contribution yet 
made to the elucidation of the Great Charter is that con- 
tained in M. Charles Bemont's preface to his Charles des 
Liberies Anglaises, published in 1892. Although he has 
subjected himself to the severe restraints imposed by the 
slender size of his volume and by a rigid desire to state 
only facts of an undisputed nature, leaving theories strictly 
alone; he has done much to help forward the study of 
the charters, insisting upon the close mutual connection 
between the various Charters of Liberties. It is doubtful, 
however, whether by this very insistence upon the continuity 
of this one series of documents, he does not lay himself 
open to the misconception that he takes too narrow a view 
of the scope and relations of the Charter. Magna Carta's 
antecedents must not be looked for exclusively among 
documents couched in the form of charters, nor its results 
merely in their subsequent confirmations. It is impossible 
to understand it aright, except in close relation to all the 
varied aspects of the national life and development. Every 
Act appearing on the Statute Rolls is, in a sense, an Act 
amending Magna Carta; while such enactments as the 
Statutes of Marlborough and Westminster I. have as 
intimate a connection with John's Great Charter as the 
Confirvialio Cartarum or the Arliculi super Cartas have. 
This is a truth which M. Bemont recognizes, though the 
scheme of his book led him to emphasize another aspect 
of his subject. His object was not to explain the numerous 
ways in which the Charters of Liberties are entwined with 
the whole of English history, but merely to furnish a basis 
for the accurate study of one of their most important 



PREVIOUS EDITIONS AND COMMENTARIES i8i 

features. His book is indispensable, but is not intended 
to form, in any sense, a commentary on Magna Carta. 

(id) a brilliant article by Mr. Edward Jenks appeared 
in The Independent Review for November, 1904, whose 
title, The Myth of Magna Carta, indicates the iconoclastic 
lines on which it proceeds. He argues that the Charter 
was the product of the selfish action of the barons pressing 
their own interests, and not of any disinterested or national 
movement ; that it was not, by any means, " a great land- 
mark in history " ; and that, instead of proving a material 
help in England's advance towards constitutional freedom, 
it was rather " a stumbling block in the path of progress, " 
being feudal and reactionary in its intention and effects. 
Finally, for most of the popular misapprehensions con- 
cerning it, he holds Coke responsible. 

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

(12) M. Charles Petit-Dutaillis, in his Etude sur la vie 
et le regne de Louis VIII. (1894), was one of the first of 
modern historians to deprecate exaggerated estimates of 
the value of Magna Carta, insisting that " the barons had 
no suspicion that they would one day be called the founders 
of English liberty." ^ More recently, in his Studies and 
Notes supplementary to Stuhbs' Constitutional History ^ 
he has included a brief but valuable discussion of the Great 
Charter. 

•^ (13) The whole of Prof. G. B. Adams' The Origin of the 
English Constitution (191 2) is virtually a discussion of the 
Great Charter, and abounds in valuable suggestions for 
estimating its tenor and value, and for elucidating its 
various clauses. It does not aim at being an exhaustive 

1 P. 57 of work cited. 

2 This is the title of the English translation by Mr. W. E. Rhodes (1908) of the 
Appendices to the first volume of a French version of Stubbs' Const. Hist.^ 
published in 1907. 



i82 MAGNA CARTA 

treatise, but is intended to supplement rather than super- 
sede existing commentaries.^ 

^ Of the books and articles containing incidental references to Magna Carta, it 
is unnecessary to speak ; those containing comments on isolated chapters or 
particular aspects are mentioned infra in their appropriate places. The late Mr. 
Harcourt's His Grace the Steward and Trial of Peers contains a vigorous com- 
mentary on chapter 39, and his article **The Amercement of Barons by their 
Peers" {Eng. Hist. Rev., XXII. 732), on chapter 21. The first edition of the 
present work (published, 1905) evoked a number of valuable contributions to 
various aspects of the subject ; among these may be mentioned Vinogradoff, Law 
Quart. Rev.y XXI. 250-7 ; Liebermann, Historische Vierteljahrschrift, 1907, 
231-5; Bemont, Revue Historique, 1907, 122-4; Petit-Dutaillis, Le Moyen Age, 
1906, 277-282 ; H. W. C. Davis, Eng. Hist. Rev. (1905), XX. 719-726 ; Neilson, 
Juridical Reviezv, June, 1905, 128-144. See 2\%o Jurid. Rev., March, 1905, 61 ; 
and Law Notes (New York), August, 1905, 94-6 for some legal decisions, Scotch 
and American respectively. 



TEXT, TRANSLATION, AND 
COMMENTARY 



MAGNA CARTA. 

PREAMBLE.i 

Johannes Dei gratia rex Anglie, dominus Hibernie, dux 
Normannie et Aquitannie, et comes Andegavie, archi- 
episcopis, episcopis, abbatibus, comitibus, baronibus, 
justiciariis, forestariis, vicecomitibus, prepositis, ministris 
et omnibus ballivis et fidelibus suis salutem. Sciatis nos 
intuitu Dei et pro salute anime nostre et omnium ante- 
cessorum et heredum nostrorum, ad honorem Dei et exalta- 
tionem sancte Ecclesie, et emendacionem regni nostri, per 
consilium venerabilium patrum nostrorum, Stephani Can- 
tuariensis archiepiscopi tocius Anglie primatis et sancte 
Romane ecclesie cardinalis, Henrici Dublinensis archi- 
episcopi, Willelmi Londoniensis, Petri Wintoniensis, 
Joscelini Bathoniensis et Glastoniensis, Hugonis Lincoln- 
iensis, Walteri Wygorniensis, Willelmi Coventriensis, et 
Benedicti Roffensis episcoporum ; magistri Pandulfi 
domini pape subdiaconi et familiaris, fratris Aymerici 
magistri milicie Templi in Anglia; et nobilium virorum 
Willelmi Mariscalli comitis Penbrocie, Willelmi comitis 
Sarresburie, Willelmi comitis Warennie, Willelmi comitis 
Arundellie, Alani de Galeweya constabularii Scocie, 
Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo 

*The division of Magna Carta into a preamble and sixty-three chapters is a 
modern device for which there is no warrant in the Charter. Cf. supra^ 170. 
No title or heading precedes the substance of the deed in any one of the four 
known originals, but on the back of the Lincoln MS. (cf. supra^ 167) these 
words are endorsed ; " Concordia inter Regent Johannem et Barones pro concessione 
Hbertatum ecclesie et regni Anglie.'''' The form of the document is discussed 
supra^ 104-9. The text is taken from that issued by the Trustees of the British 
Museum founded on Cottonian version No. 2. Cf. supra, 166. 



i86 MAGNA CARTA 

senescalli Pictavie, Hugonis de Nevilla, Mathei filii Here- 
berti, Thome Basset, Alani Basset, Philippi de Albiniaco, 
Robert! de Roppeleia, Johannis Mariscalli, Johannis filii 
Hugonis et aliorum fidelium nostrorum. « 

John, by the grace of God, king of England, lord of Ireland, 
duke of Normandy and Aquitaine, and count of Anjou, to the 
archbishops, bishops, abbots, earls, barons, justiciars, foresters, 
sheriffs, stewards, servants, and to all his bailiffs and liege 
subjects, greeting. Know that, having regard to God and for 
the salvation of our souls, and those of all our ancestors and 
heirs, and unto the honour of God and the advancement of 
holy Church, and for the reform of our realm, [we have 
granted as underwritten] ^ by advice of our venerable fathers, 
Stephen, archbishop of Canterbury, primate of all England and 
cardinal of the holy Roman Church, Henry archbishop of 
Dublin, William of London, Peter of Winchester, Jocelyn of 
Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, 
William of Coventry, Benedict of Rochester, bishops ; of master 
Pandulf, subdeacon and member of the household of our lord 
the Pope, of brother Aymeric (master of the Knights of the 
Temple in England), and of the illustrious men^ William 
Marshal, earl of Pembroke, William, earl of Salisbury, William, 
earl Warenne, William, earl of Arundel, Alan of Galloway 
(constable of Scotland), Waren Fitz Gerald, Peter Fitz Herbert, 
Hubert de Burgh (seneschal of Poitou), Hugh de Neville, 
Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip 
d'Aubigny, Robert of Roppesley, John Marshal, John Fitz 
Hugh, and others, our liegemen. 

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

I. The King's Title. Points of interest are suggested by 
the form of royal style here adopted. John's assumption 
of the royal plural " Sciatis Nos " reads, in the light of 

^ The sentence is concluded in chapter one (see infra) — the usual division, here 
followed, being a purely arbitrary one. 

2 The phrase ^''nobiles virV was not used here in any technical sense; the 
modern conception of a distinct class of "noblemen" did not take shape until 
long after 1215. Cf. what is said of "peerage" under cc. 14 and 39. 



PREAMBLE 187 

subsequent history, as a tribute to his arrogance rather 
than his greatness, when compared with the humbler first 
person singular used by his father. In this particular, 
however, Richard, not John, had been the innovator. ^ 
For a further alteration, John was alone responsible : to 
the titles borne by his father and brother, he added 
that of " lord of Ireland." When the wide territories of 
Henry II., had been distributed among his elder sons, the 
young John (hence known as " John Lackland ") was left 
without a heritage, until his father bestowed on him the 
island of Ireland, recently appropriated ; and this brought 
with it the right to style himself " do minus Hiberniae," a 
title retained after he had outlived his brothers and inherited 
their wide lands and honours. 

John began his reign in 1199 as ruler over the undivided 
possessions of the House of Anjou from the Cheviots to 
the Pyrenees. These lands were held, by him as by his 
father, under a variety of titles and conditions. Anjou, 
the original fief of the Plantagenet race, still carried with 
it only the title of count. Henry II. had, at an early age, 
become duke of Normandy in his mother's right, and there- 
after duke of Aquitaine by marriage with Eleanor, its 
heiress.^ These fiefs were held by Henry and his sons 
under the King of France as Lord Paramount. Long 
before 12 15, John had lost these wide dominions, except 
the most distant of them all, his mother's dowry of Aqui- 
taine. Anjou and Normandy were irretrievably lost, but 
he still retained their empty titles; and in this Henry III. 
followed him at first, until, by the Treaty of 1259, he 
surrendered to Louis IX. all claim to Normandy and Anjou 
with their dependencies, in return for a confirmation of his 
claims on Aquitaine.^ 

Of Ireland, John was still, as formerly, " lord " not 
" king." ^ The exact denotation of " dominus " has formed 

^Coke [Second Institute, pp. 1-2) errs in attributing the change to John. 

2 Aquitaine included Poitou and Gascony with the four dependent counties of 
Angouleme, La Marche, Limoges and Perigord. See Norgate, Minority, 132. 

' See Giry, Mamiel de diplomatique, 798. 

* Henry VIII. was the first to call himself *' King of Ireland "—a singular proof 
"of the success of Henry's policy." Gairdner, Lollardy, ii. 473. 



l88 MAGNA CARTA 

the subject of learned controversy. It is not, as has some- 
times been suggested, an inferior title to that of rex, 
appropriate only to a preliminary stage of the process 
culminating in kingship. The two words imply distinct 
relationships differing in kind. The one is national and 
the other personal and feudal. Kingship is conferred by 
" election " (or at least proclamation) followed by corona- 
tion; lordship depends on the feudal contract made with 
the individual vassal, by homage and fealty.^ England, 
alone of John's possessions, was held by the style of 
"Rex," implying sovereign rule, although John in 1213 
had accepted Innocent as feudal overlord. In calling him- 
self "Rex Angliae," in place of "Rex Anglorum" (as 
Henry I. had done), he followed precedents of Stephen and 
of Henry II. 2 

No vindication of John's title is given. The simple 
words, "Dei gratia rex Angliae,'' may be contrasted with 
the laboured attempt of Stephen's second and more formal 
charter of liberties (of April, 1136) to set forth a valid title 
to the throne; where he describes himself as appointed 
(" electus ") by consent of clergy and people ; consecrated 
by William, Archbishop of Canterbury and Legate of Holy 
Roman Church; and thereafter confirmed by Innocent, 
Pontiff of the Holy See of Rome.^ 

Conscious of the claims of his cousin Matilda, Stephen 
here ignores the element of hereditary succession in deter- 
mining the title to the Crown, and emphasizes the element 
of appointment or "election," both of which were blended 
in the twelfth, as in earlier centuries, in proportions not 
easy to define with accuracy. Professor Freeman pushed 
to excess the supposed right of the Witenagemot to elect 
the King, and transferred it to the Norman Curia. A 
recent German writer, Dr. Oskar Rossler,* denies that the 

^Cf. supra, p. 95. See Orpen, Ireland, I. 300 and II. 31, where it is pointed 
out that William Marshal refused to support his King against his "lord." For 
other theories, see Round's Mandeville, 70; Rossler's Mat tide, 291-4 and 424; 
Ramsay's Fojindations, II. 403; Davis, England tinder Normans, 170. 

^Stubbs, Early English History, p. 122, seems to be in error here. 

^ See Charter in Appendix. * Matilde, passim. 



PREAMBLE 189 

Normans admitted the elective element at all. The theory 
now usually held is a mean between these extremes, namely, 
that the Norman Curia had a limited right of selecting 
among the sons, brothers, or near relations of the last King, 
the individual best suited to succeed him.^ Such a right, 
never authoritatively enunciated, gradually sank to an 
empty formality. Its place was taken, to some extent, by 
the successful assertion by the spiritual power of a claim 
to give or withhold the consecrating oil, without which no 
one could be recognized as rex. John, secure in possession, 
contents himself with the terse assertion of the fact of king- 
ship : " John, by God's grace. King of England." 

11. The Names of the consenting Nobles. It was 
natural that the Charter should place on record the assent 
of those magnates who remained in at least nominal allegi- 
ance, and were therefore capable of acting as mediators.^ 
The leading men in England during this crisis may be 
arranged in three groups: (i) the leaders of the host 
opposed to John at Runnymede ; (2) the agents of John's 
oppressions, extreme men, mostly aliens, many of whom 
were in command of royal castles or of mercenary levies; 
and (3) moderate men, churchmen or John's ministers or 
relations, who, whatever their sympathies might be, 
remained in allegiance to the King and helped to arrange 
terms of peace — a comparatively small band, as the paucity 
of names recited in Magna Carta testifies.^ The men, here 
made consenters to John's grant, are again referred to, 

^ See, however, Chadwick, Anglo-Saxon Institutions, p. 355 ff. 

^Dr. Stubbs, Const. Hist., I. 582, gives the motive of thus naming them as 
*' the hope of binding the persons whom it includes to the continued support of the 
hard-won liberties." Those named were all moderate men. M. Paris (Chron. 
Maj., II. 589) describes them as ** qttasi ex parte regis.'''' Cf. Annals of Dmistabky 
III. 43. The neutrality of the prelates is proved by other evidence, (i) C. 62 
gave them authority to certify by letters testimonial the correctness of copies of the 
Charter. (2) The 25th of the Articles of the Barons left to their decision whether 
John should enjoy a crusader's privileges ; while c. 55 gave Langton a special place 
in determining what fines were unjust. (3) The Tower of London was placed in 
the custody of the archbishop. (4) Copies are preserved of two protests by the 
prelates in favour of the King. See Appendix. 

^ Cf. supra, 36 ; for biographical information see authorities there cited. 



190 MAGNA CARTA 

though not by name, in chapter 63, in the character of 
witnesses. 

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



CHAPTER ONE. 

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

"^ Second Institute, I n. "Cf. sztpra, 40. 

' Some editions place here the division between c. i and c. 



CHAPTER ONE 191 

scriptas, habendas et tenendas eis et heredibus suis, de nobis 
et heredibus nostris. 

In the first place we have granted to God, and by this our 
present charter confirmed for us and our heirs for ever that the 
EngHsh church shall be free, and shall have her rights entire, 
and her liberties inviolate ; and we will that it be thus observed ; 
which is apparent from this that the freedom of elections, which 
is reckoned most important and very essential to the English 
church, we, of our pure and unconstrained will, did grant, and 
did by our charter confirm and did obtain the ratification of the 
same from our lord. Pope Innocent III., before the quarrel 
arose between us and our barons : and this we will observe, and 
our will is that it be observed in good faith by our heirs for 
ever. We have also granted to all freemen of our kingdom, for 
us and our heirs forever, all the underwritten liberties, to be had 
and held by them and their heirs, of us and our heirs forever. 

This first of the sixty-three chapters of Magna Carta 
places side by side, bracketed equal as it were, (a) a general 
confirmation of the privileges of the English church, and 
(b) a declaration that the rights to be afterwards specified 
were granted " to all freemen " of the kingdom and to their 
heirs for ever. The manner of this juxtaposition of the 
church's rights with the lay rights of freemen, suggests an 
intention to make it clear that neither group was to be 
treated as of more importance than the other. If the civil 
and political rights of the nation at large occupy the bulk 
of the Charter, and are defined in their minutest details, the 
church's rights receive a prior place. ^ A twofold division 
thus suggests itself. 

I. The Rights of the Church. A general promise that 
the English church should be free was accompanied by 
specific confirmation of the separate charter, guaranteeing 
freedom of canonical election, granted on 21st November, 
1 214. (i) Quod Anglicana ecclesia libera sit. This 
emphatic declaration, which has no counterpart in the 
Articles of the Barons, is repeated twice in Magna Carta, at 
the beginning and the end respectively. If the original 
scheme of the barons showed no special tenderness for 
churchmen's privileges, Stephen Langton and his bishops 
were careful to have that defect remedied. It is interesting 

^ Cf. su/>ra, p. 39. 



192 MAGNA CARTA 

to note that, where the charters of Henry II. and earUer 
Kings spoke of "holy church," Magna Carta speaks of 
" ecclesia Anglicana." When EngHsh churchmen found 
that the tyrant, against whom they made common cause with 
English barons and townsmen, received sympathy and sup- 
port from Rome, the conception of an English church that 
was something more than a mere branch of the church 
universal, began to take clearer shape. The use of the* 
words ecclesia Anglicana may indicate, perhaps, that under 
the influence of Stephen Langton, English churchmen were 
beginning to regard themselves as members of a separate 
community, that looked for guidance to Canterbury rather 
than to Rome. John was now the feudal dependent of the 
Holy See, and the " liberty of the English church " had to 
be vindicated against the King and his lord paramount : the 
phrase had thus an anti-papal as well as an anti-monarchical 
bearing. 

In promising that the English church should be free, 
John used a phrase that was deplorably vague ; it scarcely 
needed stretching, to cover the widest encroachments of 
clerical arrogance. Yet the formula was by no means a 
new one: both Henry I. and Stephen had confirmed the 
claim of holy church to its freedom. ^ 

Henry II. had agreed in 1173 to give greater freedom of 
elections, and in 11 76 that he would not keep sees vacant 
for longer than one year,^ but avoided sweeping promises of 
unlimited freedom. His whole reign, indeed, was an effort, 
not unsuccessful, in spite of the disastrous consequences of 
Becket's murder, to deprive the English church of what she 
considered her freedom. John in 1215 receded from the 
ground occupied by his father, confirming by the Great 
Charter the promise given by the weakest of his Norman 
predecessors, in a phrase repeated in all subsequent 
confirmations. 

It by no means follows that "freedom of the church," 
as promised by Stephen, meant exactly the same thing as 
" freedom of the church " promised by John and his succes- 

* See their Charters in Appendix. 

"See Makower, ConsL Hist, of the Churchy 26, 315. 



CHAPTER ONE 193 

sors. The value to be attached to such assurances varied 
in inverse ratio to the strength of the Kings who made 
them, and this is well illustrated by a comparison of the 
charters of Htenry I., Stephen, and John. Henry used 
words, which may possibly be interpreted as defining and 
restricting the grant of freedom, ^ until it meant little more 
than freedom from the graver abuses of Rufus' reign. 
Stephen's charter, on the contrary, supplements the same 
phrase by definite declarations that the bishops should have 
sole jurisdiction over churchmen and their goods, and that 
all rights of wardship over church lands were renounced, 
thus making it a " large and dangerous promise." ^ 

"Freedom of the church" had come in 1136 to include 
" benefit of clergy " in a specially sweeping form, and much 
besides.^ It is easy to understand why churchmen cher- 
ished an elastic phrase which, wide as were the privileges it 
already covered, might readily be stretched wider. Lay- 
men, on the contrary, contended for a more restrictive 
meaning; and the Constitutions of Clarendon must be 
viewed as an attempt to settle disputed points of interpreta- 
tion. Henry II. substantially held his ground, in spite of 
his nominal surrender after Becket's murder. Thanks to 
his firmness, " the church's freedom " shrank to more 
reasonable proportions, so that the well-known formula, 
when repeated by John, was emptied of much of the content 
found in it by Stephen's bishops. Chapter 18 of Magna 
Carta embodied, apparently with the approval of all classes, 
the principle that questions of church patronage (assizes of 
darrein presentment) * should be settled before the King's 
Justices, a concession to the civil power inconsistent with 
the more extreme interpretations formerly put by church- 
men on the phrase. 

In later reigns, the pretensions of the church to privileged 
treatment were reduced to narrow bounds, and the process 
of compression was facilitated by that very elasticity on 
which the clergy had relied as being favourable to the 
expansion of their claims. It was the civil government 

1 Cf. supra, p. 97. 2 cf^ Pollock and Maitland, I. 74. 

^Cf. supra, pp. 102-3. * For explanation see infra, c. 18. 

N 



194 MAGNA CARTA 

which benefited in the end from the vagueness of the words 
in which Magna Carta declared quod Anglicana ecclesia 
libera sit.^ 

(2) Canonical Election. The charter, granted to the 
church on 21st November, 12 14, had been reissued on 15th 
January .2 Its tenor may be given in three words, " freedom 
of election." In all cathedral and conventual churches and 
monasteries, the appointment of prelates was to be free from 
royal intervention for the future, provided always that 
licence to fill the vacancy had first been asked of the King. 
The bishops present at Runnymede succeeded in having 
this concession inserted in the very forefront of Magna 
Carta. 

Henry III. in his reissues was made to repeat the phrase 
quod Anglicana ecclesia libera sit, but omitted all reference 
alike to canonical election and to John's charters to the 
church. With the Pope's connivance or support, he 
reduced the rights of cathedral chapj;ers to the sinecure they 
had been before 12 15. It is true that Henry was prone to 
lean on the papal arm, and that the Curia at Rome rather 
than the Curia Regis often dominated appointments to 
vacant sees : the canons elected the nominee of king or 
pope, as each was, for the moment, in the ascendant.^ In 
spite of Magna Carta, the independence of the English 
church retrograded during the long alliance between Henry 
III. and successive occupants of the papal throne.* 

1 Mr. J. H. Round {Geoffrey de Mandeville, 3), speaking of Stephen's *' oath " to 
restore the church her ** liberty," describes this as " a phrase the meaning of which 
is well known." If "well" known, it was known chiefly as something which 
baffled definition, because churchmen and laymen could never agree as to its 
contents, while it tended also to vary from reign to reign. Mr. Round attempts 
no definition. Sir James Ramsay {Angevin Empire, p. 475), writing of the phrase 
as used in John's Charter, is less prudent. " It would relieve the clergy of all lay 
control, and of all liability to contribute to the needs of the State beyond the 
occasional scutages due from the higher clergy for their knights' fees." This 
definition would not have satisfied John. 

2 Cf. supra, p. 33. The text will be found in Statutes of the Realm, I. 5, and in 
New Rymer, I. 126-7. It was confirmed by Innocent on 30th March, 12 15. See 
Potthast, Regesta pontificum romanorum. No. 4963. 

^Cf. supra, p. 141. 

^Cf. Prothero, Simon de Montfort, p. 152. "The English church was indeed 



CHAPTER ONE 195 

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

Another interesting point, though of minor importance, 
calls. for separate treatment. John does not state that his 
grants of civil and political rights had been made spon- 
taneously. Whether deliberately or not, there is here a 
marked distinction between the phraseology applied to 
secular and to ecclesiastical rights respectively. While the 
concessions to churchmen are said to have been granted 
" mera et spontanea voluntate," no such statement is made 
about the concessions to freemen. John may have favoured 
this omission with an eye to the future repudiation of the 
Great Charter on the ground that it had been sealed by him 
under compulsion. Perhaps it was to anticipate the repeti- 
tion of such arguments that the words spontanea et bona 
voluntate nostra were inserted in the preamble of the reissue 
of 1225, which had been purchased by a liberal grant.^ 

less independent of the king in 1258 than in 12 15, and far less independent of the 
Pope than in the days of Becket." 

^See supray pp. 104 and 114. For the meaning of "freeman" and Coke's 
inclusion of villeins under that term for some purposes but not for others, see infra, 
cc. 20 and 39. 

^Cf. supra, 154, where the bearing of these words is discussed. 



196 #.. MAGNA CARTA 



CHAPTER TWO. 

Si quis comitum vel baronum nostrorum, sive aliorum 
tenendum 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 con- 
suetudinem feodorum. 

If any of our earls or barons, or others holding of us in chief 
by military service shall have died, and at the time of his death 
his heir shall be full of age and owe "relief" he shall have his 
inheritance on payment of the ancient relief, namely the heir or 
heirs of an earl, ;^ioo for a whole earl's barony; the heir or 
heirs of a baron, ^loo for a whole barony; the heir or heirs of 
a knight, loos. at most for a whole knight's fee; and whoever 
owes less let him give less, according to the ancient custom 
of fiefs. 

Preliminaries concluded, the Charter attacked what was, 
in the barons' eyes, the chief of John's abuses, his arbitrary- 
increase of feudal obligations. The Articles of the Barons, 
indeed, had plunged at once into this most crucial question 
without a word by way of pious phrases or legal formulas. 

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

A process of definition, however, was early at work : some 
conception of a " reasonable relief " was evolved. Yet the 
criterion varied.^ Henry I., when bidding against duke 

^Cf. supra, p. 59. 

2 At an early date, in the midland counties, the thegn with more than six 



CHAPTER TWO 197 

Robert for the throne, was willing, in words if not in prac- 
tice, to accept the limits set by contemporary opinion. His 
Charter of Liberties promised that reliefs should be " just 
and lawful " — an elastic phrase, liberally interpreted by 
exchequer officials in their royal master's favour. When 
Glanvill wrote the sums to be taken by mesne lords had 
been fixed; but the Crown remained free to exact higher 
rates. Baroniae capitales were charged relief at sums which 
varied juxta voluntatem et misericordiam dommi regis.^ 

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

"manors" paid ^8 of relief to the King ; the thegn with six or fewer paid three 
marks to the sheriff. See Domesday Book, I. 280, b (Derby and Notts). Contrast 
Ibid., I. 56, where, however, relief seems to be confused with heriot. 

^ Glanvill's words (IX. c. 4) are ambiguous. He distinguishes three cases : 
(a) the normal knight's fee, from which loos. was due as relief (whether this 
extends to fees of Crown-tenants does not appear) ; [b) socage lands, from which 
one year's rent might be taken ; and {c) *^ capitales baroniae " were left subject to 
the King's discretion. Now "barony" was a loose word: baronies, like barons, 
might be small or great (cf. infra, c. 14) ; all Crown fiefs being *' baronies " in one 
sense, but only certain larger "honours" being so reckoned in another. Glanvill 
leaves this vital point undetermined, but Dialogus de Scaccario (II. x. E. p. 135 
and II. xxiv. p. 155) supports the distinction between Crown-tenants and tenants 
of mesne lords: only the latter had their reliefs fixed. Madox (I. 315-6) 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. i^Pipe Roll, 24 
Henry II.) There is further evidence to the same effect: where a barony had 
escheated to the Crown, reliefs of the former under-tenants would in future be 
payable directly to the Crown ; but it was the practice of Henry II. (confirmed by 
c. 43 of Magna Carta, q.v.) to charge, in such cases, only the lower rates exigible 
prior to the escheat. A similar rule applied to under-tenants of baronies in 
wardship ; see the case of the knights of the see of Lincoln in the hands of a royal 
warden in Pipe Roll, 14 Henry II. cited by Madox, ibid.). It would thus appear 
that all holders of Crown fiefs (not merely barones majores) were in Glanvill's day 
still liable to arbitrary extortions in name of reliefs. The editors of the Dialogus 
(p. 223) are of this opinion. Pollock and Maitland (I. 289) maintain the opposite 
— that the limitation to lOOs. was binding on the Crown as well as on mesne 
lords. 



198 MAGNA CARTA 

"reasonable."^ John was more openly regardless of 
reason. The Pipe Roll of 1202 shows how an unfortunate 
heir failed to get his heritage until he paid 300 marks, with 
the promise of an annual " acceptable present " to the 
King.2 

If John could ask so much, what prevented him asking 
more ? He might name a prohibitive price, and so defeat 
the hereditability of fiefs altogether. Such arbitrary exac- 
tions must end, so the barons were determined in 1215 : 
custom must be defined, so as to prevail henceforth against 
royal discretion. The first demand of the Articles of the 
Barons is, " that heirs of full age shall have their heritage 
by the ancient relief to be set forth in the Charter," as 
though the final bargain had not yet been made. Here it is, 
then, duly set forth and defined as ;^ioo for an "earl's 
barony," ;^ioo for " a baron's barony," iocs, for a knight's 
fee, and a proportional part of loos. for every fraction of a 
knight's fee. This clause produced the desired effect. 
These rates were strictly observed by the exchequer of 
Henry HI., as we know from the Pipe Rolls of his reign. 
Thus, when a certain William Pantoll was charged with 
;^ioo for his relief on the mistaken supposition that he had 
a " barony," he protested that he held only five knights' 
fees, and got off with the payment of £2^,,^ The relief of 
a barony was subsequently reduced from ;^ 100 to 100 marks. 
The date of this change, if we may rely on Madox,^ lies 
between the twenty-first and thirty-fifth years of Edward I.^ 

Apparently all who paid reliefs to the King were m&cted 
in a further payment (calculated at 9 per cent, of the relief) 
in name of "Queen's Gold," to the private purse of the 
Queen Consort, collected by an official representing her at 
the exchequer.^ 

The charter here says nothing of socage or serjeanty.*^ 

1 Madox, I. 316. '^I5t(i.,l. 317. ^IhW.,1.3iS. Mbid.,l. :^i. 

' ^ Apparently its first appearance is in the Inspeximus of loth October, 1297. '^See 
Madox, 318; Pollock and Maitland, I. 289; Bemont, CharteSy p. 47. 

® See note by editors of Dialcgus, p. 238 ; Poole, Exchequer, 16, 170. The 
barons in 1258 {Sel. Charters ^ 382) protested against this, and the practice was 
discontinued. 

'Cf. supra^ pp. 54-6. 



CHAPTER TWO 199 

(a) Socage, The barons were not vitally interested in 
socage, that being, in the normal case, the tenure of humbler 
men.^ In later reigns the King, like an ordinary mesne 
lord, contented himself with one year's rent of socage lands 
in name of relief, (h) Serjeaniy, The barons cannot have 
been indifferent to the fate of serjeanties, since many of 
them held great estates by such tenures. Possibly they 
assumed that the rules applied to knights' fees and baronies 
would apply to serjeanties as well. The Crown acted 
on quite a different view; large sums were frequently 
extorted by Henry III. By the reign of Edward I., how- 
ever, the exchequer limited itself to one year's rent^ for 
petty serjeanties, which thus fell into line with socage.^ 

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

(i) Feodum Tuilitis integrum. There is little doubt, in 
light of evidence accumulated by Mr. Round in his Feudal 
England, that William I. stipulated verbally for the service 
of a definite number of knights from every fief bestowed by 
him on his Norman followers. A knjghtlsJee (or scutum) 
became the measur e of feudal assessment : servitium, unius 
militis was a well-known legal unit. But difficult problems 
emerge when it is asked what equation, if any, existed 
between land and service. Unsuccessful attempts have 
been made to identify the knights' fee with a fixed area of 
five hides on the one hand, or with a fixed annual value of 
;^20 upon the other. Prof. Vinogradoff^ has shown con- 
clusively that no fixed ratio exists. Fees have been found 
as small as one hide and as large as 48 ; and they vary in 

^ It is possible to argue that the custom as to socage was already too well settled 
to require confirmation : Glanvill (IX. c. 4) stated the relief for socage at one 
year's value. It is not clear, however, whether this restriction applied to the 
Crown. Further, no custom, however well established, was safe against John's 
greed. 

2 See Littleton, Tenures^ II. viii. s. 154, and Madox, I. 321, who cites the case 
of a certain Henry, son of William le Moigne, who was fined in ;^i8 for the relief 
of lands worth ;!^i8 a year held " by the serjeanty of the King's Lardinary." 

^Cf. supra^ p. 57. See Round, King's Serjeanties^ p. 33. 

* Engl. Soc. in Eleventh Centtiry, pp. 42-48. 



1/ 



200 MAGNA CARTA 

value from place to place, as well as from reign to reign. 
William I. allowed himself a wide discretion in saddling 
estates with service : favoured foundations like Gloucester 
and Battle Abbey enjoyed complete exemption. Yet he did 
not distribute burdens in pure wantonness ; and the majority 
of holdings approximated to a normal standard of extent and 
value. Under Henry II. two types appear, the larger of 
1 6 marks and the smaller of lo. Under Edward I. a general 
appreciation of values seems to have raised the former 
standard to ;^20.^ 

The Crown tenant's holding consisted of a fixed number 
of knights' fees — usually a multiple of five (a troop of ten 
mounted soldiers forming the military unit of the Norman 
Kings) ; and each fee, whatever might be its acreage or 
rental, owed the service of one knight. Each fee, under the 
Great Charter, paid relief at loos., unless the estate, of 
which it formed part, was reckoned as a barony. 

(2) Baronia integra. The word " barony " has under- 
gone many changes.^ A " barony " at the Norman Con- 
quest differed in almost every respect from a " barony " at 
the present day. The word haro was originally synony- 
mous with homo, meaning, in feudal usage, a vassal of any 
lord. It soon became usual, however, to confine the word 
to king's men ; " harones " were identical with " crown 
tenants " — a considerable body at first ; but a new distinc- 
tion arose (possibly as a consequence of the procedure for 
summoning them to a Great Council as stipulated for in 
chapter 14 of Magna Carta) between the great men and the 
smaller men {harones major es and minor es). The latter 
were called knights (milites), while " baron " was reserved 
for the greater tenants.^ For determining what constituted 
a "barony," however, it was impossible to lay down any 

'^ Engl. Soc. in Eleventh Century, pp. 49-50. 

2 See Pollock and Maitland, I. 262, and authorities there cited. "An honour 
or barony is thus regarded as a mass of lands which from of old have been held by 
a single title." See also Pike, House of Lords, pp. 88-9. 

3 This change was not complete in 12 15, but Magna Carta, when it uses 
'■'' harones"" alone, seems to refer to ^'- barones majores" (see cc. 2, 21, 61). Cf. 
infra under c. 14. 



CHAPTER TWO 201 

absolute criterion. Mere size was not sufficient. Under 
Henry II. baronies still paid relief at the King's good 
pleasure.^ Richard and John were more rapacious than 
their father. John, indeed, forced William de Braose, who 
was heir to the barony of Limerick, to promise a relief 
of 5000 marks — a sum he was quite unable to pay.^ Magna 
Carta, here not merely declaratory, but making an addition 
to existing custom, fixed ;^ 100 as the relief for a full barony 
(a sum afterwards reduced to 100 marks) irrespective of size 
or value. ^ 

(3) Baronia comitis Integra. Where a modern eye 
expects to find " earldom," the text reads " earl's barony." ^ 
But " earldom " originally meant an office, the chief magis- 
tracy of a county, not a title of dignity nor the ownership of 
land : whereas " relief " was due for the land, not the office. 
Therein lies also the explanation why the earl originally 
paid no more for his barony than the baron paid for his. 

The position of an earl under the Norman Kings had been 
something far different from a modern " earldom " : it did 
not pass, as matter of course, from father to son without 
the King's confirmation ; it did not carry with it any right 
to demand entry to the King's Council ; it was not one of 
several "steps in the peerage," a conception that did not 
then exist. ^ 

The policy of the Conqueror had been to bring each 
county as far as possible under his own direct authority; 
many districts had no earls, while in others the connection 

'^ Dialogus, II. xxiv. ^ New Rymer^ I. loy. 

^Madox, I. 216 fF. As the Exchequer, from the time of Edward I., exacted 
100 marks from a barony and loos. from a knight's fee, the false equation of extent 
•' I barony =13^ knights' fees" was deduced. Coke {On Littleton, IV. s. 1I2, 
and Second Inst., 7) is sometimes credited with originating this error, but it 
appears in Modus tenendi Parliamentum [Sel. Chart., 503). To suit the pro- 
portion given in John's Charter the equation would need to be " i barony = 20 
fees." There is, of course, no fixed equation ; baronies fnight be of any size ; we 
read of land held *' in baronagio per sei-vitium feodi unitis militis " (Northumber- 
land Eyre Roll, 7 Ed. I. ; Surtees Soc, 88, p. 327). 

^In the Inspeximus of Edward I., however, comitatus (earldom) displaces the 
baronia comitis of the text. See Statutes of Realm, I. 114. 

^See Pike, House of Lords, 57. 



202 MAGNA CARTA 

of an earl with his titular shire was reduced to a shadow, 
the only points of connection being the right to enjoy " the 
third penny" (that is, the third part pro indiviso of the 
profits of the county court) and the right to bear its name. 
It is true that, in addition, the earl usually held valuable 
estates in the shire, but he did this only as any other land- 
owner might. For purposes of taxation the whole of his 
lands were reckoned as one unit, here described as haronia 
comitis Integra, the relief on which was taxed at ;£ioo. 

Very gradually, in after ages, the conception of an earldom 
suffered change. The official character made way for the 
idea of tenure, and later on for the modern conception of a 
hereditary dignity conferring rank and privileges. The 
period of transition, when the tenurial idea prevailed, is 
illustrated by the successful attempt of Ranulf, earl of 
Chester and Lincoln, in the reign of Henry III. to dispose 
of one of his two earldoms — described by him as the comi- 
tatus of Lincoln.^ Earls are now, like barons, created by 
letters patent, and need not be land-owners. Thus the 
words " barony " and " earldom," so diverse in their origin 
and early development, became closely united in their later 
history. 

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

It was not unnatural that, when a prelate died, the Crown 
should -demand "relief" from his successor. Thus, in 

^ See Pike, House of Lords, S^. This term comitatus was a word of many 
meanings. Originally designating the "county "or " the county court," it came 
to mean also the office of the earl who ruled the county, and later on it might 
indicate either his titular connection with the shire, his estates, his share of the 
profits of justice, or his rank in the peerage. 

2 This was affirmed in 1164 by Article ii of the Constitutions of Clarendon, 
which stipulated that each prelate should hold his lands sicut baroniam. 



CHAPTER TWO 203 

1092, Herbert Losinga paid ;^iooo of relief for the see of 
Thetford, an act of simony for which his conscience pricked 
him. Such demands met with bitter opposition. The 
Crown, unwilling to forego its feudal dues, endeavoured to 
shift their incidence from the revenues of the see to the 
shoulders of the feudal under-tenants. After bishop Wulf- 
stan's death on i8th January, 1095, a writ was issued in 
William's name to the freeholders of the see of Worcester, 
calling on each of them to pay, as a relief due on their 
bishop's death, a specified sum, assessed by the barons of 
exchequer.^ 

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



CHAPTER THREE. 

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

If, however, the heir of any one of the aforesaid has been 
under age and in wardship, let him have his inheritance without 
relief and without fine when he comes of age. 

The Crown is here forbidden to exact relief where it had 
already enjoyed wardship. It was hard on the youth, 
escaping from leading-strings, to be met, when he " sued 

^ Siait per barones meos disposui. The writ is given in Heming's Carhilaty, I. 
79-80, and reprinted by Round, Feudal England^ 309. * 

^ See supra, p. 98. 



204 MAGNA CARTA 

out his livery," with the demand for a large relief by the 
exchequer which had appropriated all his revenues.^ 

Such double extortion had long been forbidden to mesne 
lords ; Magna Carta was extending similar limitations to the 
King. The grievance complained of had been intensified 
by an unfair expedient which John sometimes adopted. In 
cases of disputed succession he favoured the claims of a 
minor, enjoyed the wardship, and thereafter repudiated his 
title altogether, or confirmed it only in return for an exor- 
bitant fine. The only safeguard was to provide that the 
King should not enjoy wardship until he had allowed the 
heir to perform homage, which pledged the King to 
" warrant " the title against all rival claimants. This 
expedient was actually adopted in the revised Charter of 
1216.2 

The alterations in that reissue were not altogether in the 
vassal's favour. Another addition made a reasonable 
stipulation in favour of the lord, which illustrates the theory 
underlying wardship. Only a knight was capable of 
bearing arms ; hence, the lord held the lands in ward until 
the minor should reach man's estate. Ingenious attempts 
had apparently been made to defeat these legitimate rights 
of feudal lords by making the infant heir a "knight," thus 
cutting away the basis on which wardship rested. The 
reissue of 12 16 provided that the lands of a minor should 
remain in wardship, although he was made a knight. ^ 
Incidentally, the same Charter declared twenty-one years to 

^ Where there had already been a wardship, the relief was thus the price paid by 
the heir in order to escape from the heavy hand of the King, and was therefore 
known as ^^ ousterlemam." Taswell-Langmead {Engl. Const. Hist.^ 51 n.) states 
the amount at half a year's profits. He cites no authorities, and is probably in 
error. Dialogtis, 11. x. E. p. 135, forbids relief to be taken, when wardship had 
been exercised per aliquot annos. 

2 See chapter 3 of 12 16, which stipulates that no lord shall have wardship 
''^ antequain homagium ejtis ceperity Seo-CokQ, Second Instittite, 10. Cf. Adams, 
Origin, 204, on "homage as a recognition of title." 

^ CoV&^ -Ibid. , p. 12, makes a subtle and unwarranted distinction depend on 
whetherithe minor was made a knight before or after his ancestor's death. The 
proviso, he argues, does not apply to the former case, because lands cannot 
** remain " in wardship if they were not in it before. 

f 



^^^^R THREE 205 

be the periou f?.^^v*^?5ii^a'^military tenant came of age, a point 
on which John's Charter is silent. 

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



CHAPTER FOUR. 

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

The guardian of the land of an heir who is thus under age, 
shall take from the land of the heir nothing but reasonable 
produce, reasonable customs, and reasonable services, and that 
without destruction or waste of men or goods ; and if we have 
committed the wardship of the lands of any such minor to the 
sheriff, or to any other who is responsible to us for its issues, 
and he has made destruction or waste of what he holds in 
wardship, we will take of him amends, and the land shall be 
committed to two lawful and discreet men of that fee, who shall 
be responsible for the issues to us or to him to whom we shall 

^See Coke on Littleton, Book II. c. iv. s. 112 ; and cf. infra, cc. 37 and 43 for 
the " prerogative wardship " of the Crown. 



v 



206 MAGNA (\rtA 

assign them ; and if we have given or soJ^.-.r^ ,-araship of any 
such land to anyone and he has therein made destruction or 
waste, he shall lose that wardship, and it shall be transferred to 
two lawful and discreet men of that fief, who shall be responsible 
to us in hke manner as aforesaid. 

This chapter and the next treat of wardship,^ a much- 
hated feudal incident, which afforded opening for grave 
abuses. It is a mistake, however, to regard its mere exist- 
ence as an abuse : it seems to have been perfectly legal in 
England from the date of the Norman Conquest, although 
some writers ^ consider it an innovation devised by William 
Rufus and Flambard. Their chief argument is that Henry 
I., in promising redress of several inventions of Rufus, 
promised also to reform wardship. This shows that ward- 
ship was abused, but does not prove it an innovation. 

The Charter of Henry committed him to drastic remedies, 
which would have altered the character of wardship 
altogether. Clause 4 of that document removed from the 
lord's custody both the land and the person of the heir, and 
gave them to the widow of the deceased tenant (or to one of 
the kinsmen, if such kinsman had, by ancient custom, 
rights prior to those of the widow) .^ This was one of the 
\ many promises which the " lion of justice " never kept. 
Wardship continued to be exercised as before, over lay fiefs, 
throughout the reigns of Henry I. and Stephen. Article 4 
of the Assize of Northampton (1176) merely confirmed the 
existing practice when it allowed wardship to the lord of 
the fee.* The barons in 12 15 made no attempt to revert to 
the drastic remedies of the Charter of Henry I., although 
the evils complained of had become worse under John's 
misgovernment. 

It must be remembered that " wardship " placed the 
property and person of the heir at the mercy of the Crown. 
Even if the popular belief as to the fate met by prince 

^The nature of wardship is more fully explained supra, pp. 61-2. 

"^ E.g. Taswell-Langmead, Eng. Const. Hist., p. 51 n. 

^**This, it would seem, was the old English rule;" see Ramsay, Foundations 
of England, II. 230. 

* It is a common error to suppose that this Assize restores wardship to the lord. 



CHAPTER FOUR 207 

Arthur at his uncle's hands was unfounded, John was not 
the guardian to inspire confidence in the widowed mother 
of a Crown tenant whose estates the King might covet. 
Further, the King might confer the office, with the dehcate 
issues involved, upon whomsoever he would. When such 
a trust was abused, it was difficult to obtain redress. In 
^^33j ^ guardian, accused de puella quam dicitur violasse in 
custodia sua, paid a fine to the Crown, if not as hush money, 
at least in order to obtain protection from being sued else- 
where than in the Curia Regis^ 

Guardians were of two kinds. The King might entrust 
the lands to the sheriff of the county where they lay (or to 
one of his bailiffs), such sheriff drawing the revenues on 
the Crown's behalf, and accounting in due season at the 
exchequer. Alternatively, the King might make an out- 
and-out grant of the office, with all its profits, to a royal 
favourite or the highest bidder. Commentators of a later 
date 2 apply the word "committee" to the former type of 
guardian, reserving " grantee " for the latter. This distinc- 
tion, mentioned by Glanvill,^ obtains recognition in this 
passage of the Charter. Neither type was likely to have 
the interests of the minor at heart. They had always strong 
inducements to exhaust the soil, stock, and timber, uproot- 
ing and cutting down whatever would fetch a price, and 
replacing nothing. The heir too often found impoverished 
lands and empty barns. 

William Marshal's experience affords apt illustration. 
Early in Richard's reign, he married Isabel of Clare, but 
John, Dominus Hiherniae, refused seisin of the bride's Irish 
lands. When Richard was appealed to, John tried to make 
conditions : " provided the grants of lands I have made to 
my men hold good and be confirmed," to which the King 
aptly replied : " That cannot be : for what would then 
remain to him, seeing that you have given all to your 
people? "4 

The remedies proposed by Magna Carta were too timid 

1 See Pipe Roll, 29 Henry II., cited Madox, I. 483. 

"^ E.g. Coke, Second Institute, p. 13. 

3 VII. c. 10. *Orpen, Ireland, II. 203. 



2o8 MAGNA CARTA 

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

The promised reforms included a definition of " waste " ; 
punishment of the wasteful guardian ; and protection 
against repetition of the abuse. Each of these calls for 
comment. (1) The definition of waste. The Charter uses 
the words " vastum hominum vel rerum " (a phrase which 
occurs also in Bracton).^ It is easy to understand waste of 
goods ; but what is " waste of men " ? An answer may be 
found in the " unknown Charter of Liberties," ^ which binds 
guardians to hand over the land to the heir " sine venditione 
nemorum et sine redemptione hominum." To enfranchise 
villeins was one method of "wasting men." The young 
heir, when he came to his estates, must not find his praedial 
serfs enxapBfpated.3 In 1259, the Provisions of West- 
minster (c. 20) forbade " farmers " to make waste, or sale, or 
exile, of woods, or houses, or men. The statute of Marl- 
borough placed such defaulters at the King's mercy. 

(2) Punishment of wasteful guardians. The Charter 
provides appropriate punishment for each of the two types 
of guardian. John promises to take "amends," doubtless 
of the nature of a fine, frorn the " committee " who had no 
personal interest in the property ; while the " grantee " is to 

^ II. folio 87. ^ See Appendix. 

3 Another way of "wasting" villeins was by tallaging them excessively. (For 
meaning of tallage cf. zn/ra, c. 12.) Thus Bracton's iVi?/<f ^^^y^ reveals how one 
guardian destruxit villanos per tallagia {v. case 485) ; how another exiled or 
destroyed villeins to the value of 300 marks (case 574) ; how a third destroyed two 
rich villeins so that they became poor and beggars and exiles (case 632). Cf. also 
case 691. Daines Barrington, writing towards the middle of the eighteenth 
entury, went too far when he inferred from this passage "that the villeins who 
'S6. by servile tenure were considered as so many negroes on a sugar plantation " 
{Observations^ P- 7)- 



CHAPTER FOUR 209 

forfeit the guardianship, thus losing a valuable asset for 
which he had probably paid a high price. While the 
Statute of Westminster ^ merely repeated the words of 
Magna Carta, the Statute of Gloucester ^ enacted that the 
grantee who had committed waste should not only lose the 
custody, but should, in addition, pay to the heir any balance 
between the value of the wardship thus forfeited and the 
total damage. More severe penalties were found necessary. 
Statute 36 Edward III (c. 13) enacted that King's 
escheators, guilty of waste, should " yield to the heir treble 
damages." If the boy was still a minor, his friends might 
bring a suit on his behalf ; or after he was of full age he 
might bring it on his own account.^ 

(3) Provision against recurrence of the waste. It was 
only fair that reasonable precautions should be taken to 
prevent the heir who had already suffered hurt, from being 
similarly abused a second time. John promised to super- 
sede the keeper guilty of waste, by two trustworthy free- 
holders on the heir's estate. These men, from their local 
and personal ties to the young heir, might be expected to 
deal tenderly with his property. The " unknown Charter '* 
proposed a more drastic remedy : the lands were to be 
entrusted at once to four knights of the fief, without waiting 
until damage had been done. Even the milder provision 
of Magna Carta was an innovation, and there is no evidence 
that it was ever put in force. 



CHAPTER FIVE. 

CusTOS autem, quamdiu custodiam terre habuerit, sustentet 
domos, parcos, vivaria, stagna, molendina, et cetera ad ter- 

1 Edward I. c. 21. 2 Edward I. c. 5. 

3 Coke, Second Institute^ p. 13, enunciates a doctrine at variance with this 
statute, holding that the heir who suffered damage could not, on coming of age, 
obtain triple damages, or indeed any damages at all, if the King had previously 
taken amends himself. Coke further maintains that even after waste, the person 
of the heir was left in the power of the unjust guardian, explaining that when the 
Charter took away the office "this is understood of the land, and not of the 
body." 

O 



210 MAGNA CARTA 

ram illam pertinencia, de exitibus terre ejusdem ; et reddat 
heredi, cum ad plenam etatem pervenerit, terram suam 
totam instauratam de carrucis et waynagiis, secundum quod 
tempus waynagii exiget et exitus terre racionabiliter 
poterunt sustinere. 

The guardian, moreover, so long as he has the wardship of 
the land, shall keep up the houses, parks, ^ fishponds, stanks,^ 
mills, and other things pertaining to the land, out of the issues 
of the same land ; and he shall restore to the heir, when he has 
come to full age, all his land, stocked with ploughs and " way- 
nage," ^ according as the season of husbandry shall require, and 
the issues of the land can reasonably bear. 

These stipulations form the complement, on the positive 
side, of the negative provisions of chapter 4. It was not 
sufiicient to prohibit acts of waste; the guardian must 
keep the estates in good repair. 

I. The Obligations of the Warden of a Lay-fief. It was 
the duty of every custodian to preserve the lands from 
neglect, together with all the usual equipment of a medieval 
manor. Outlay thus required formed, in modern lan- 
guage, a first charge on the revenues, before the balance was 
appropriated by the " grantee, " or paid to the exchequer by 
the "committee." 
r^ This clause expands and improves the corresponding 
Article of the Barons ; but the obligation to restore the land 
and its appointments " in as good order as the revenues 
would bear " came to be regarded as too stringent, obliging 
the guardian to use up surplus revenue in repairing waste 
committed in the time of the deceased. Henry's charters 
modified this : the guardian need only hand over the land 
and appointments in as good condition as he had received 
them .4 

New methods of abusing wardship were invented after 

^ This term is explained, c. 47. infra. 

2 It is difficult to distinguish between vivarium and stagnum. By Coke, in the 
Statutis at large ^ vivarium is translated "warren"; but that word has its Latin 
form in warrena. Westminster II. (c. 4) speaks of stagnum molendince (a mill- 
pond). Statute of Merton (c. 11) refers to poachers taken mparcis et vivariis. 

' Discussed infra^ under c. 20. * Cf. Blackstone, Great Charter, Ixxviii. 



CHAPTER FIVE 211 

Magna Carta. The Statute of Marlborough (c. 16) gave 
to a ward, kept out of his heritage, an action of mort 
d' ancestor against a mesne lord, but not against the Crown. ^ 
The Statute of Westminster I. (c. 48) narrates that heirs 
were often carried off bodily to prevent them raising actions 
against guardians. The whole subject was regulated in 
1549 by Statute 32 Henry VIII. c. 46, which instituted 
the Court of Wards and Liveries, the expensive and dilatory 
procedure of which caused increasing discontent, until an 
order of both Houses of Parliament, dated 24th February, 
1646, abolished it along with " all wardships, liveries, 
primer seisins, and ouster les mains." "^ This ordinance 
was confirmed at the Restoration by Statute 12 Charles 11. 
c. 24.3 

II. Wardships over Vacant Sees. The church had its own 
grievances. The Constitutions of Clarendon * had stipu- 
lated that each prelate should hold his Crown land sicut 
haroniam; and this view ultimately prevailed. It followed 
that all appropriate feudal burdens affected church fiefs 
equally with lay fiefs. The lands of a see were, however, 
the property of an undying corporation (to use the language 
of a later age) : a minority was impossible, and therefore, so 
it might be argued, w^ardships could never arise. Rufus 
objected to this reasoning, and devised a substitute for 
ordinary wardships by keeping sees long vacant, and 
meanwhile appropriating the revenues. Henry I., while 
renouncing all pretensions to exact reliefs, retained his 
right of wardship, promising merely that vacant sees should 
neither be sold nor farmed out. Stephen went further, 
renouncing expressly all wardships over church lands ; but 
Henry II. ignored this concession, and reverted to the 
practice of his grandfather. In his reign the wardship of 
the rich properties of vacant sees formed a valuable asset of 
the exchequer. During a vacancy the Crown drew not 
only the rents and issues of the soil, but also the various 
feudal payments which the under-tenants would otherwise 

1 Cf. mfra, under c. i8. ^See R. S. Gardiner, Documents^ p. 207. 

' See infra, under c. 37, for prerogative wardship. 

* Article 11 : see Select Charters, 139. - 



212 MAGNA CARTA 

have paid to the bishop. The Pipe Roll of 14 Henry II. ^ 
records " reliefs " of £so and ;^20 paid by tenants of the 
vacant see of Lincoln for six and four knights' fees 
respectively .2 

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

The omission was supplied in 12 16, when the provisions 
applicable to lay fiefs were extended to vacant sees, with the 
added proviso that church wardships should never be sold. 

These provisions were supplemented by later acts. An 
Act of 14 Edward III. (stat. 4, cc. 4 and 5) gave to the dean 
and chapter of a vacant see a right to pre-emption of the 
wardship at a fair price. If they failed to exercise this, the 
King's right to appoint escheators or other keepers was 
confirmed, but under strict rules as to waste. 



CHAPTER SIX. 

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

Heirs shall be married without disparagement, yet so that 
before the marriage takes place the nearest in blood to that heir 
shall have notice. 

The Crown's right to regulate the marriages of wards 
had become an intolerable grievance. The origin of this 
feudal incident and its extension to male as well as female 
minors have been elsewhere explained."* John made a 
regular traffic in the sale of wards — maids of fourteen and 
widows alike. The Pipe Roll of John's first year ^ records 
how the chattels of Alice Bertram were sold because she 
refused " to come to marry herself " at the King's summons. 

^ Cited by editors of the Dialogus^ p. 223. ^ Cf. under c. 43 infra. 

, ' C. 46 of Magna Carta (see infra) confirmed barons^ who had founded abbeys, 
in their rights of wardship over them during vacancies. 

* See supra, 26-3. * Cited Madox, I. 565. 



CHAPTER SIX 213 

Only two expedients were open to those who objected to 
mate with the men to whom John sold them. They might 
take the veil, become dead in law, and forfeit their fiefs to 
escape the burdens inherent in them ; or they might outbid 
objectionable suitors. Brief entries in John's Exchequer 
Rolls condense many a tragedy. In his first year, the widow 
of Ralph of Cornhill offered 200 marks, with three palfreys 
and two hawks, that she might not be espoused by Godfrey 
of Louvain, but remain free to marry whom she chose, and 
yet keep her lands. This was a case of desperate urgency, 
since Godfrey, for love of the lady or of her lands, had 
offered 400 marks, if she could show no reason to the con- 
trary. It is satisfactory to learn that the lady escaped.^ 

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

Great stress was placed on " disparagement " — that is, 
forced marriage with one not an- equal. William of Scot- 
land, by the treaty of 7th February, 121 2, conferred on 
John the right to marry prince Alexander to whom he would, 
"but always without disparagement."^ Such proviso was 
understood where not expressed. It is not surprising, then, 
to find it confirmed in Magna Carta. The Articles of the 
Barons had, indeed, demanded that a royal ward should 
only be married with consent of the next of kin. In our 
text, this is softened down to the mere intimation of an 
intended marriage : the opportunity was still afforded of 
protesting against an unsuitable match. Insufficient as the 
provision was, it was omitted from the reissues of Henry's 
reign. The sale of heiresses went on unchecked. 

Magna Carta made no attempt to define disparagement,, 
but the Statute of Merton * gave two examples, — marriage 

1 See /^o^u/i de Oblatis et Finibus, p. 37, and Pipe Roll, 2 John, cited by Madox, 
I. 515. 

Pipe Poll, 4 John, cited by Madox, I. 324. » See infra, c. 59. 

* 20 Henry III. c. 6. 



214 ^M^ MAGNA CARTA 

to a villein or a burgess. This was not an exhaustive list: 
Littleton ^ adds other illustrations : — " as if the heir that is 
in ward be married to one who hath but one foot, or but one 
hand, or who is deformed, decrepit, or having an horrible 
disease, or else great and continual infirmity, and, if he be 
an heir male, married t o a woman past the age of child- 
bearing." Plenty of roonPwas left tor torcmg on a~wafd" 
an"oBjectionable spouse, who yet did not come within the 
law's definition of " disparagement." The barons argued 
in 1258 that an English heiress was disparaged if married 
to anyone not English born.^ 

Was it in the power of the far-seeing father of a prospec- 
tive heiress, by bestowing her in marriage during his own 
life-time, to render nugatory the Crown's right to nominate 
a husband ? Not entirely : the Charter of Henry I. reserved 
the King's right to be consulted by the barons before they 
bestowed the hand of female relations in marriage. Magna 
Carta is silent on the point. Bracton ^ thus explains the 
law : — No woman with an inheritance could marry without 
the chief lord's consent, under pain of losing such inherit- 
ance ; yet the lord when asked was bound to grant consent, 
if he failed to show good reason to the contrary. He could 
not, however, be compelled to accept homage from an 
enemy or other unsuitable tenant. The Crown's rights in 
such matters were apparently the same as those of a mesne 
lord.^ 

^ Tenures, II. iv. s. 109. 

2 See Petition of the Barons {Sel. Charters, 383). Gradually the conception of 
disparagement expanded, partly from the natural development of legal principles 
and partly from the increased power of the nobility. Coke commenting on 
Littleton (Section 107) mentions four kinds of disparagements : (i) propter vitium 
animi, e.g. lunatics ; (2) propter vitium sanguinis, villeins, burgesses, sons of 
attainted persons, bastards, aliens ; (3) propter vitium corporis, as those who had 
lost a limb or were diseased or impotent ; and (4) propter jacturam privilegii, or 
such a marriage as would involve loss of *' benefit of clergy." The last clause had 
no connection with the law as it stood in 12 15. Marriage with a widow or 
widower was deemed by the Church in later days an act of bigamy, and involved 
loss of benefit of clergy, until this was remedied by the Statute i Edward VI. 
c. 12 (sect. 16). 

3 II. folio 88. 

* For further information on the age at which marriage could be tendered to a 
ward, and the penalties for refusing, see Thomson Magna Carta, pp. 170- 171. 



CHAPTER SEVEN 215 



CHAPTER SEVEN. 

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

A widow, after the death of her husband, shall forthwith and 
without difficulty have her marriage portion and inheritance; 
nor shall she give anything for her dower, or for her marriage 
portion, or for the inheritance which her husband and she held 
on the day of the death of that husband ; and she may remain 
in the house of her husband for forty days after his death, within 
which time her dower shall be assigned to her. 

No forethought of a Crown tenant, setting his house in 
order, could rescue his widow from the unfortunate position 
into which his death would plunge her. He must leave her 
without adequate protection against the tyranny of the 
King, who might inflict terrible hardships by harsh use of 
rights vested in him for the safeguard of his feudal inci- 
dents. She might, if deprived of her "estovers," find 
herself in actual destitution, until she had made her bargain 
with the Crown. She had a right, indeed, to one-third of 
the lands of her husband (her dos rationalis) in addition to 
any lands she might have brought as a marriage portion ; 
but she could only enter into possession by permission of 
the King, who had prior claims and could seize everything 
by his prerogative of primer seisin.^ This chapter provides 
a remedy. Vi^idows shall have their rights without delay, 
without difficulty, and without payment. 

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

(i) Dower. A wife's dower is here the portion of her 
husband's lands set aside to support her in her widowhood. 
It was customary from an early date for a bridegroom to 

^Cf. supra, 6$- S- 



2i6 MAGNA CARTA 

make provision for his bride on the day he married her. 
The ceremony formed a picturesque feature of the marriage 
rejoicings, taking place hterally at the church door, as man 
and wife returned from the altar. The share thus set apart 
for the young wife was known as her dos (or dowry), and 
would support her if her husband died. In theory, the 
transaction between the spouses partook of the nature of a 
contract. The wife's role, however, was a passive one : her 
concurrence was assumed. Yet, if no provision was made 
at all, the law stepped in, on the presumption that the 
omission had been unintentional, and fixed the dower at 
one-third of all his lands. ^ 

John's Magna Carta contents itself with the brief enact- 
ment "that a widow shall have her dower." The Charter 
of 12 1 7 goes farther, containing an exact statement of the 
law as it then stood : — ^" The widow shall have assigned to 
her for her dower the third part of all her husband's land 
which he had in his lifetime unless a smaller share had been 
given her at the door of the church." Lawyers of a later 
age have, by a strained construction of the words in vita 
sua, made them an absolute protection to a wife against all 
attempts to lessen her dower by alienations granted without 
her consent during the marriage.^ Magna Carta contains 
no warrant for such a proposition, although a later clause 
(chapter ii) secures dower lands from attachment by the 
husband's creditors, Jews or others. 

(2) Maritagium, It was customary for a land-owner to 
bestow marriage portions on his daughters. Land so 
granted was usually relieved from burdens of service and 
homage. It was hence known as " frank-marriage "^^ 
(liherum maritagium), which almost came to be recognized 
as a separate form of feudal tenure. Such grants could be 
made without the consent of the tenant's expectant heirs. 
Maritagium was thus " a provision for a daughter — or per- 

1 See Pollock and Maitland, II. 422-3. The ceremony at the church door, 
when resorted to, was no longer an opportunity of giving material proof of affec- 
tion to a bride, but a means of cheating her out of what the law considered her 
legitimate provision, by substituting something of less value. 

'Pollock and Maitland, II. 419. 



CHAPTER SEVEN 217 

haps some other near kinswoman — and her issue." ^ The 
husband was, during the marriage, treated as virtual owner ; 
but, on his death, the widow had an indisputable title. 

The obvious meaning, however, has not always been 
appreciated. Coke ^ reads the clause as allowing to widows 
of under-tenants a right denied (by chapter 8) to widows of 
Crown tenants — namely " freedom to marry where they will 
without any licence or assent of their lords." This inter- 
pretation is inherently improbable, since the barons at 
Runnymede desired to place restrictions on the King, not 
upon themselves ; and it is opposed to the law as expounded 
by Bracton.2 

Daines Harrington ^ invents an imaginary rule of law in 
order to explain a supposed exception. An ordinary widow, 
he declares, could not marry again within a year of her 
husband's death, but widows of landowners were privileged 
to cut short this period of mourning. " Maritagium " is 
thus interpreted as a landowning widow's right of speedily 
entering on second nuptials. This is a complete inversion of 
the truth ; the possession of land really restricted freedom of 
marriage. Yet several later authorities follow Barrington's 
mistake.^ This is the more inexcusable in view of the clear 
explanation given a century ago by John Reeves,^ who 
distinguished between two kinds of marriage portion : 
liherum maritagium, whence no service whatever was 
exigible for three generations, and m^aritagium servitio 
ohnoxium, liable to the usual services from the first, 

^See Pollock and Maitland, II. 15, 16. Liberum maritagium, considered as a 
tenure, has various peculiarities. The lady's husband became the feudal tenant of 
her father. The issue of the marriage were heirs to the lands and would hold 
them as tenants of the heir of the donor. For three generations, however, neither 
service nor homage was due. After the third transmission, the land ceased to be 
"free"; the peculiar tenure came to an end ; the new owner was subject to all 
the usual burdens. 

^ Second Institute, p. 16. ^See supra^ p. 214. * Observations^ pp. 8-10. 

^ E.g. Thomson, Afagna Carta, p. 172. Dr. Stubbs has his own reading of 
maritagium, namely, "the right of bestowing in marriage a feudal dependant." 
See Glossary to Sel. Charters, p. 545. The word may sometimes bear this mean- 
ing, but not in Magna Carta. 

' See his History of English Law, I. 121 (3rd ed.). 



2i8 MAGNA CARTA 

although exempt from homage until after the death of the 
third heir.^ 

(3) Hereditas. Is the third item here mentioned simply 
another name for either dos or maritagium ? Or, is it some- 
thing different? It is possible that " the inheritance which 
her husband and she held on the day of the death of that 
husband " denotes lands that had come to the lady as heiress 
on the decease of relations, not as a gift at her marriage. 
Such lands might be described as held by both spouses; 
for a husband might even attend Parliament as a baron on 
the strength of his wife's barony. 

II. The Widow's Share of Personal Estate. The present 
chapter says nothing of the widow's " peculiar " or share of 
her deceased husband's money and chattels ; but chapter 26 
secured to her the portion of one third allowed her by the 
existing law. 

III. Provision for the Widow's immediate Needs. Intri- 
cate questions might arise before the land was divided into 
aliquot portions. Meanwhile, temporary provision must be 
made for her support. This was of two kinds : (i) Quaran- 
tine. Magna Carta confirmed her right to the family home 
for forty days, known to later lawyers as the widow's 
quarantine. The charter of 1216 notes an exception, on 
which John's Charter is silent : if the husband's place of 
residence had been a castle, the widow could not stay there ; 
feudal strongholds were not for women. In such cases 
another residence must be substituted. In later days, 
widows were provided with a writ, " de quarentina 
hahenda," directing the sheriff to do her right.^ 

(2) Estovers of Common. The widow required more 
than the protection of a roof ; until her dower lands had been 
assigned to her, no portion of the produce of her husband's 
manors could be strictly called her own. The estate was 
held " in common " between her and her husband's heir. 
It was only fair that, until her rights were ascertained, she 

^ Cf. Idiif., I. 242, where Reeves rightly points out that Coke is mistaken, 
although he fails to notice the distinction drawn, in the passage criticized, between 
the Crown and mesne lords. 

2 See Coke, Second histitnte^ p. i6. 



CHAPTER SEVEN 219 

should be allowed a reasonable share of the produce. 
Neither John's Charter nor the first issue of Henry III. said 
anything on this head. The reissue of 1217 supplied the 
omission, expressly confirming her right to rationahile 
estoverium suum interim de communi. Many explanations 
of the word estovers might be cited : from Dr. Johnson, who 
defines it broadly as " necessaries allowed by law," to Dr. 
Stubbs, who narrows it to " firewood." ^ It was the right to 
supply one's personal or domestic wants : this varied in 
extent from full supply of all things necessary for the main- 
tenance of life, down to a right to take one kind of produce 
for one specific purpose only.- 

In this passage the word bears its wider signification. 
Such was Coke's view,^ who held that it implied the 
widow's right to " sustenance " of every kind, including the 
right to kill such oxen on the manor as she required for 
food. Estovers " of common " should thus be read as 
extending the widow's right of consumption for her own 
and her household's use over every form of produce held 
" in common " by her and the heir's guardian prior to a final 
division.^ She could not, however, cut down trees. 

^ See Glossary to Sekc^ Charters^ p. 539: "firewood; originally provision or 
stuff generally." 

2 Several instances of the wider use may be given. Bracton (III. folio 137) 
explains that, pending the trial of a man accused of felony, his lands and chattels 
were set aside by the sheriff; meanwhile the imprisoned man and his family 
received ** reasonable estovers." (Cf. infra^ c. 32.) The Statute of Gloucestier 
f6 Edward I. c. 4) mentions incidentally one method of stipulating for a return 
from property alienated, viz., estovers of meat or clothes. Blackstone, again 
{Co/nvientaries, I. 441), applies the name estovers to the alimony made to a 
divorced woman "for her support out of the husband's estate." Sometimes the 
word was more restricted. Coke [Second histitute, p. 17) says, "when estovers 
are restrained to woods, it signifieth housebote, hedgebote, and ploughbote," — 
that is, timber for repairing houses, hedges, and ploughs. Apparently it had an 
even more restricted scope when used to describe the right of those who dwelt in 
the King's forest, viz., to take dead timber as firewood. (Cf. infra^ c. 44.) 

"^ Second Institute^ p. 17. 

* There seems no reason to restrict her estovers to a right over "commons," in 
the sense of pastures and woods held " in common " by her late husband and the 
villeins of his manor. Some such meaning, indeed, attaches to the phrase "dower 
of estovers" met with in later reigns, e.g. in Year Book of 2 Edward II. (Selden 
Society), p. 58, where it was held that such a right (claimed as a permanent part 
of dower) did not belong to a widow. 



220 MAGNA CARTA 



CHAPTER EIGHT. 

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

No widow shall be compelled to marry, so long as she prefers 
to live without a husband; provided always that she gives security 
not to marry without our consent, if she holds of us, or without 
the consent of the lord of whom she holds, if she holds of 
another. 

Wealthy widows were glad to escape from John's clutches 
by agreeing to buy up the Crown's rights for a lump sum. 
In the year of Magna Carta, Margaret, widow of Robert fitz 
Roger, paid ;^iooo;^ and a few years earlier Petronilla, 
countess of Leicester, had given 4000 marks.^ The Pipe 
Rolls mention numerous smaller sums; in 1200, Juliana, 
widow of John of Kilpec, accounts for 50 marks and a 
palfrey.^ Horses, dogs, and falcons were frequently given 
in addition to money fines, and testify eloquently to the 
greed of the King, the anxiety of the victims, and the 
extortionate nature of the system. In return, formal 
charters were obtained, a good example of which is that 
granted to Alice, countess of Warwick, dated 13th January, 
1205,^ containing concessions that she should not be forced 
to marry ; that she should be sole guardian of her sons ; 
that she should have one-third part of her late husband's 
lands as her reasonable dower ; and that she should be quit 
from attendance at courts of shire and hundred, and from 
payment of sheriff's aids during her widowhood. Another 
charter, of 20th April, 1206, shows what a widow might 
expect if she failed to make her bargain with the Crown : 
John granted to Richard Fleming, an alien as his name 

^ See Pipe Roll of i6 John, cited Madox, I, 491. 
»See Pipe Roll of 6 John, cited Madox, L 488. 
» See Pipe Roll of 6 John, cited Madox, I. 488. 
^ New Rymer, I. 91. 



CHAPTER EIGHT 221 

implies, the wardship of the lands of the deceased Richard 
Grenvill, with the rights of marriage of the widow and 
children.^ 

Magna Carta, in substituting a rule of law for the pro- 
visions of these private charters, repeated at greater length 
the promises made (and never kept) by Henry I. in his 
coronation charter : no widow was to be constrained to 
marry against her will. This liberty must not be used, 
however, to the prejudice of the Crown : the widow could 
not marry without the King's consent. Magna Carta pro- 
vided that she must find security to this effect, an annoying^ 
but not unfair stipulation. The Crown, in later days, com- 
pelled the widow, when having her dower assigned to her 
in Chancery, to swear not to marry without licence under 
penalty of a fine of one year's value of her dower.^ 



CHAPTER NINE. 

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

Neither we nor our bailiffs shall seize any land or rent for any 
debt, so long as the chattels of the debtor are sufficient to repay 
the debt; nor shall the sureties of the debtor be distrained 
so long as the principal debtor is able to satisfy the debt ; and 
if the principal debtor shall fail to pay the debt, having nothing 
wherewith to pay it, then the sureties shall answer for the debt ; 
and let them have the lands and rents of the debtor, if they 
desire them, until they are indemnified for the debt which they 
have paid for him, unless the principal debtor can show proof 
that he is discharged thereof as against the said sureties. 

^See Ne-iV Rymer, I. 92. 2See(;;oke, Second Institute, 18. 



222 MAGNA CARTA 

The Charter passes to another group of grievances. 
Chapters 9 to ii treat of debts, usury, and the Jews, and 
should be read in connection with chapter 26, which regu- 
lates procedure for attaching personal estate of deceased 
Crown tenants who were also Crown debtors. The present 
chapter, although general in its terms, had special refer- 
ence to cases where the Crown was creditor; while the 
two following chapters treat more particularly of debts 
contracted to money lenders. 

The fact that John's subjects were indebted to his Exche- 
quer did not imply that they had borrowed from the King. 
What with feudal incidents and scutages, and indis- 
criminate fines, a large proportion of Englishmen must 
have been permanently indebted to the Crown. At 
John's accession many northern barons still owed scutages 
imposed by Richard. John remitted none of the arrears, 
while imposing new burdens of his own : the attempts 
made to collect these debts intensified the friction between 
John and his barons.^ 

Three rules were laid down, (i) The personal estate of 
a debtor must be exhausted before his real estate or its 
revenues were attacked. To take away his land might 
deprive him of his means of livelihood; for chattels could 
not yield a permanent revenue. ^ This rule has not found 
a place in modern systems of law, which usually leave the 
option with the creditor. (2) The estate of the chief debtor 
had to be exhausted before proceedings could be instituted 
against his sureties. Magna Carta thus enunciated for 
English law a rule that has found favour in most systems 
of jurisprudence. The man who is only a surety for 
another's debt is entitled to immunity, until the creditor has 
taken all reasonable steps against the principal debtor. 
Such a right is known to the civil law as beneficium ordinis, 
and to Scots law as the "benefit of discussion." (3) If 

^ See supra, pp. 73-6. 

2 The Dialogus de Scaccario, II. xiv., half a century earlier, laid down rules 
even more favourable to the debtor in two respects: (i) the order in which 
moveables should be sold was prescribed ; and (2) certain chattels were absolutely- 
reserved to the debtor, e.g. food prepared for use ; and, in the case of a knight, 
his horse with its equipment. 



CHAPTER NINE 223 

these sureties had, after all, to pay the debt in whole or 
part, they were allowed " a right of relief " against the 
principal debtor, being put in possession of his lands and 
rents. This rule has some analogy with the equitable 
principle of modern law, which gives to the surety who 
has paid his principal's debt, the right to whatever the 
creditor held in security. 

Even when the Crown's bailiffs obeyed Magna Carta, 
they might still inflict terrible hardship upon debtors. 
Sometimes they seized goods valuable out of all proportion 
to the debt ; and an Act of 1266 ^ forbade this practice when 
the disproportion was "outrageous." Sometimes they 
attempted to extort prompt payment by selecting whatever 
chattel was most indispensable : oxen were taken from the 
plough and allowed to die of neglect. The practice of the 
Exchequer, in the days of Henry II., had been more con- 
siderate; oxen were to be spared as far as possible where 
other personal effects were available.^ John's charter has 
no such humane provision,^ and the abuse continued. The 
Act of 1266, already cited, forbade officers to drive away 
the owner who came to feed his impounded cattle at his 
own expense. The Articuli super cartas'^ went further, 
prohibiting seizure of beasts of the plough so long as other 
effects might satisfy the debt.^ 



CHAPTER TEN. 

Si quis mutuo ceperit aliquid a Judeis, plus vel minus, 
et moriatur antequam illud solvatur, debitum non usuret 

I51 Henry III. stat. 4 (among "statutes of uncertain date" in Statutes of 
Realnty I. 197). 

^See Dialogus de Scaccario, II. xiv. 

'Cf., however, the rule as to amercements in c. 20. 

*28 Edward I. c. 12. Cf. Statute of Marlborough, 52 Henry III. c. 15. 

* Henry's reissues make two small additions explaining certain points of detail : 
(l) the words *'(?/ ipse debitor parattis sit inde satis/acere" precede the clause 
giving sureties exemption; and (2) the sureties are declared liable to distraint 
when the chief debtor can pay, but will not. 



224 MAGNA CARTA 

quamdiu heres fuerit infra etatem, de quocumque teneat; 
et si debitum illud inciderit in manus nostras, nos non 
capiemus nisi catallum contentum in carta. 

If one who has borrowed from the Jews any sum, great or 
small, die before that loan be repaid, the debt shall not bear 
interest while the heir is under age, of whomsoever he may 
hold ; ^ and if the debt fall into our hands, we will not take 
anything except the principal sum ^ contained in the bond. 

Usury, denied by law to Christians, was carried on by 
Jews under disadvantages and risks. The rates of interest 
were proportionately high, ranging in normal cases from 
two to four pence per pound per week ; that is, from 43J 
to 86| per cent, per annum. ^ During his nonage a ward 
had nothing wherewith to discharge either principal or 
interest, since he who had the wardship drew the revenue. 
At the end of a long minority, an heir would have found 
the richest estates swallowed up by a debt which had 
increased automatically ten or twenty-fold."* 

Magna Carta prevented this injustice to the ward ; but, 
in doing so, inflicted some injustice on the money-lenders. 
During the minority no interest at all, it was provided, 
should accrue to Jew or other usurer ; while, if the debt 
passed to the Crown, the King must not use his preroga- 
tive to extort more than a private debtor might; he must 
confine himself to the principal sum specified in the docu- 
ment of debt. The provision that no interest should run 

^The words *'</<? quocnvique teneat^'' include Crown-tenants and under-tenants, 
and sugi^est that only freeholders were protected by this clause. 

- Catallum and lucrum were the technical words for " principal " and *' interest." 
See Round, Ancient Charters (Pipe Roll Society, Vol. X.), No. 51, and John's 
Charter to the Jews, Rot. Chart., p. 93. 

3 See Pollock and Maitland, I. 452, and Round's Ancient Charters, notes to 
Charter No. 51. 

* The Crown was sometimes called in to enable a debtor, overwhelmed by the 
accumulation of interest, to come to a settlement with his creditors. In 1199 
Geoffrey de Neville gave a palfrey to the King to have his aid "in making a 
moderate fine with those Jews to whom he was indebted." See RotuK de Finibus, 
p. 40. Ought we to view John's intervention as an attempt to arrange a reason- 
able composition with unreasonable usurers, or was it simply a conspiracy to cheat 
Geoffrey's creditors ? 



CHAPTER TEN 225 

during minorities was confirmed by the Statute of Merton,^ 
which made it clear, however, that its provisions should 
not operate to discharge the principal sum or interest 
accrued before the ancestor's death. The Statute of Jewry, 
of uncertain date,^ made interest irrecoverable by legal pro- 
cess. All previous acts against usury were repealed by 
the statute 37 Henry VIII. c. 9, which, however, forbade 
the exaction of interest at a higher rate than 10 per cent., 
and this remained the legal rate until reduced to 8 per cent, 
by 21 James I. c. 17. 

I. The History of the Jews in England, In the policy 
of the Crown towards aliens of the Hebrew race, three 
periods may be distinguished. From the Norman Con- 
quest to the coronation of Richard I., the Jews were fleeced 
and tolerated; during the reigns of Richard and John 
and the minority of Henry III., they were fleeced and 
protected ; and finally they were fleeced and persecuted, 
this last stage ending with the ordinance of 1290, which 
banished Jews from England. The details of this long 
story of hardship and oppression, tempered fitfully by 
royal clemency, can be only glanced at here. There were 
Jews in England before the Norman Conquest; but the 
first great influx came in the reign of Rufus, whose financial 
genius recognized in them an instrument for his gain, and 
who would the more gladly protect them, as likely to prove 
a thorn in the side of his enemy the Church. A new 
immigration led to the disarming of Jews in 1 181, a measure 
which left them at the mercy of the Christian rabble. 

When a disturbance occurred at the coronation of 
Richard I., on 3rd September, 1189, a general massacre 
took place in London. York and other towns were not 
slow to follow this example. The King was moved to 
anger, not so much by the sufferings of the Jews, as by 
the destruction of their bonds ; for the more the Jews had, 
the more could be extorted from them. Richard, returning 
from captivity a few years later, in urgent need of money, 
determined to prevent a repetition of such interference with 
a valuable source of revenue. His motive was selfish, but 

^20 Henry III. c. 5. "^Statutes of Realm, I. 221. 



226 MAGNA CARTA 

that was no reason why the Israelites should not pay for 
a measure designed for their own protection. Assembled 
at Nottingham, they granted a liberal aid, in return for a 
new expedient devised to secure their bonds. This scheme, ^ 
for the details of which Richard was probably indebted to 
the genius of his great justiciar, Archbishop Hubert 
Walter, was of a comprehensive and practical character. 
In London, York, and other important cities, offices or 
bureaus were established under the Crown's protection, 
containing treasure chests, called archae, fitted with triple 
locks, to be opened in presence of custodians, known as 
chirographers, who kept the keys. These were four in 
number, two Christians and two Jews, chosen by juries 
summoned for that purpose by the sheriff; and they were 
obliged to find sureties. Only in their presence could loans 
be validly contracted between Jews and Christians; and 
it was their duty to see such bargains reduced to writing 
in duplicate copies. No contract was binding unless a 
written copy or chirograph had been preserved in one or 
other of those repositories or arks, which thus served every 
purpose of a modern register, and other purposes as well. 
If the money-lender suffered violence and was robbed of 
his copy of the bond, the debtor was still held to his obliga- 
tions by the duplicate which remained. If the Jew and all 
his relatives were slain, even then the debtor did not escape, 
but was confronted by a new and more powerful creditor, 
the King himself, armed with the chirograph. Lists of 
transactions were preserved, and all acquittances and 
assignments of debts, known from their Hebrew name as 
" Starrs," had to be carefully enrolled.^ Stringent rules, 
codified by Hubert Walter, were issued to the judges when 
starting on their circuit in September, 1194.^ 

If this cunningly-devised system prevented the Christian 
debtor from evading his obligations, it also placed the 
Jewish creditor completely at the mercy of the Crown ; 
for the exact wealth of every Jew could be accurately 

1 Cf. C(rp. dejudaeis (Sel. Ch. 262). 

*Cf. J. M. Rigg, Sel. Pleas ofthejexvish Exchequer, p. xix. 

^Sel. Charters, 262. 



CHAPTER TEN 227 

gauged from a scrutiny of the contents of the archae. The 
King's officials knew, to a penny, how much it was possible 
to wring from the coffers of the Jews, whose bonds, more- 
over, could be conveniently attached until they paid the 
tallage demanded. The custom of fixing on royal castles 
as the places for keeping these arks, probably explains 
the origin of the special jurisdiction exercised over Jews 
by King's constables (" qui turres nostras custodierunt").'^ 
In their dungeons, horrible engines were at hand for 
enforcing obedience. Such jurisdiction, however, extended 
legitimately over trivial debts only.^ Important pleas were 
reserved for the officials of the exchequer of the Jews, a 
special government department, which controlled and regu- 
lated the whole procedure. Evidences of the existence of 
this separate exchequer have been traced back to 1198, 
although no record has been found of a date prior to 1218.^ 
John, while despising the Jews, protected their wealth as a 
reservoir from which he might draw in time of need. Thus, 
by a charter dated loth April, 1201, he took 4000 marks 
for confirming their privileges; and he obtained a similar 
amount after his rupture with Rome. The charter of 1201 
was only a confirmation of rights already enjoyed by 
English Jews in virtue of the liberal interpretation put upon 
the terms of an earlier charter, granted by Henry I. to a 
particular father in Israel and his household, but subse- 
quently extended, with the tacit concurrence of the Crown, 
to the whole Hebrew race. Under John's charter they 
enjoyed valuable and definite privileges, which exempted 
them from all jurisdictions except those of the King's 
justices and castellans.* 

When a repetition of the massacres that had disgraced 
his brother's coronation was threatened in 1203, John 
promptly ordered the mayor of London to suppress all 

^See John's Charter to the Jews of loth April, 1201, in Rotuli Chartarum, 
P- 93- 
2 See Pollock and Maitland, I. 453 n. ^ Rigg» Op. cit.^ xx. 

* See Rot. Chart. , I. 93. Complaints brought by Christians against Jews were 
to be judged ^' per pares yudez," a phrase which Harcourt, Steward^ 228, interprets 
as equivalent to ** the justices or custodes of the Jews," but see infra under c. 39. 



228 MAGNA CARTA 

such attempts : his promise of protection, " even though 
granted to a dog," must be held inviolate. ^ Protection was 
accorded, however, only that they might furnish a richer 
booty when the occasion came : suddenly John issued 
orders for a wholesale arrest of Jews throughout England. 
The most wealthy members of their community were 
brought together at Bristol, and, on ist November, 1210, 
compelled to give reluctant consent to a tallage of the 
enormous sum of 66,000 marks. This amount had been 
fixed as the result of an exaggerated estimate of the 
contents of the archae, and was more than they could 
pay. The methods adopted by John's castellans to extort 
arrears are well known, especially the case of the unfor- 
tunate Jew of Bristol, from whom seven teeth were extracted, 
one each day, until he consented to pay the sum demanded.^ 

It was doubly hard that the race thus plundered and 
tortured by the King should be subjected to harsh treat- 
ment by the King's enemies on the ground that they were 
pampered proteges of the Crown. Yet such was the case : 
on Sunday, 17th May, 12 15, when the insurgents on their 
way to Runny mede entered London, they robbed and 
murdered Jews, using the stones of their houses to fortify 
the city walls.^ It is not to be wondered, then, that the 
same insurgents, in forcing on King John the demands 
that formed the basis of Magna Carta, included provisions 
against usury. 

The advisers of the young Henry in 12 16 omitted these 
clauses, but not from love of the Jews. They were unwil- 
ling to impair so useful a source of revenue, which has been 
compared to a sponge which slowly absorbed the wealth of 
the nation, to be quickly squeezed dry again by the King. 
The Jews were always willing to disgorge a portion of their 
gains in return for protection in the rest; but their lot 
became hard indeed when Henry III., urged by popular 
clamour and the wishes of the Pope, began a course of 
active persecution. In 1253, ^ severe ordinance inflicted 
vexatious regulations on the Hebrews, almost converting 

^ J^oL Pai., I. p. 33, and New Rymer^ I. 89. The date is 29th July, 1203. 

2 See Rigg, ibid,, xxiv. ^gee Miss Norgate, yi?>^« Lackland, p. 231. 



CHAPTER TEN 229 

their quarters in each great city into ghettos, like those of 
the Continent of Europe. 

This was merely the commencement of oppres'sive 
measures, the outcome of the growing hatred with which 
Christians regarded Jews — a result partly of the heated 
imagination of the rabble, ready to believe unauthenticated 
stories of the crucifixion of Christian children, and partly 
of the fact that rich Jews, in spite of all persecution, had 
possessed themselves of the landed estates of freeholders 
and barons and claimed to act as lords of Christian tenants, 
enjoying wardships, escheats, and advowsons, as any 
Christian might have done. The scope of this enquiry 
excludes any detailed account of the stages through which 
repressive legislation passed. The Statute of Jewry, how- 
ever,^ was of exceptional importance; taking from usurers 
the right to recover interest by legal process, and limiting 
execution for the principal to one half of the debtor's lands 
and chattels. In return, some temporary concessions were 
granted. One by one, however, these privileges were again 
withdrawn, until the end came in 1290 with the issue of a 
decree of perpetual banishment by Edward I., who was 
compelled to sacrifice his royal preserve of Jews, in defer- 
ence to national prejudice. 

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

^ Statutes of Realm ^ I. 221. 



230 MAGNA CARTA 

(although illegal only for Christians) ; while excessive 
interest was habitually exacted. 

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



CHAPTER eleven: 

Et si quis moriatur, et debitum debeat Judeis, uxor ejus 
habeat dotem suam, et nichil reddat de debito illo; et 

1 Folio 386b. 



CHAPTER ELEVEN 231 

si liberi ipsius defuncti qui fuerint infra etatem remanserint, 
provideantur eis necessaria secundum tenementum quod 
fuerit defuncti, et de residuo solvatur debitum, salvo servicio 
dominorum ; simili modo fiat de debitis que debentur aliis 
quam Judeis. 

And if anyone die indebted to the Jews, his wife shall have 
her dower and pay nothing of that debt ; and if any children of 
the deceased are left under age, necessaries shall be provided 
for them in keeping with the holding of the deceased ; and out 
of the residue the debt shall be paid, reserving, however, service 
due to feudal lords; in like manner let it be done touching 
debts due to others than Jews. 

If the preceding chapter deprived Jews of part of their 
interest, the present one deprived them of part of the 
security on which they had lent the principal. The widow's 
dower lands were discharged from her husband's debts, 
only two-thirds of the original security thus remaining 
under the mortgage. Even this must submit to a prior 
claim, namely the right of the debtor's minor children to 
such " necessaries " as befitted their station in life. Magna 
Carta, at the same time, with characteristic care for feudal 
rights, provided that the full service due to lords of fiefs 
must not be prejudiced, whoever suffered loss. Finally, 
these rudiments of a law of bankruptcy were made appli- 
cable to Gentile creditors equally as to Jews. These pro- 
visions, with others injuriously affecting the royal revenue, 
were omitted in 12 16, not to be restored in future charters : 
but they were re-enacted in their essential principle, though 
not in detail, by the Statute of Jewry, which limited a 
creditor's rights of execution to one moiety of his debtor's 
lands and chattels. 



CHAPTER TWELVE. 

Nullum scutagium vel auxilium ponatur in regno nostro, 
nisi per commune consilium regni nostri, nisi ad corpus 
nostrum redimendum, et primogenitum filium nostrum 
militem faciendum, et ad filiam nostram primogenitam 



232 MAGNA CARTA 

semel maritandam, et ad hec non fiat nisi racionabile auxi- 
lium : simili modo fiat de auxiliis de civitate Londonie. 

No scutage nor aid shall be imposed on our kingdom, unless 
by common counsel of our kingdom, except for ransoming our 
person, for making our eldest son a knight, and for once 
marrying our eldest daughter ; and for these there shall not be 
levied more than a reasonable aid. In like manner it shall 
be done concerning aids from the city of London. 

This is a famous clause, greatly valued at the time it was 
framed because of its precise terms and narrow scope (which 
made evasion difficult), and even more highly valued in 
after days for different reasons. It came indeed to be inter- 
preted in a broad general sense by enthusiasts who, with 
the fully-developed British Constitution before them, found 
in it the modern doctrine that the Crown can impose no 
financial burden on the people without consent of Parlia- 
ment. Before discussing how far such an estimate is 
justified, it will be necessary to examine the historical 
context, with special reference to two classes, feudal tenants 
and the citizens of London respectively. 

I. Protection of Crown Tenants from arbitrary Exactions, 
Apart from payments such as reliefs and amercements, the 
occasions of which were independent of the royal will, 
feudal exactions were of two types : scutages and aids. 
By these two expedients the King could arbitrarily increase 
the burdens of his feudal tenants beyond the letter of the 
original feudal contract. Recognized usage, however, 
required the consent of the vassals before they were sub- 
jected to extraordinary exactions. The barons were within 
their rights in seeking to embody this general principle in 
Magna Carta, although it would appear (from comparison 
of the versions of 12 15, 12 16 and 12 17) that they had 
difficulty in devising a proper formula to give effect to it. 
The present chapter attempts a rough compromise of the 
question at issue, by requiring consent of the Crown tenants 
to all scutages and also to aids other than the recognized 
three. ^ 

(i) Feudal aids. The three recognized aids are liere 

*See supra, p. 65. 



CHAPTER TWELVE 233 

specified, but no reform is attempted with regard to them, 
and in particular (in marked contrast to the care taken in 
chapter two to define the exact rate of " relief "), nothing 
is said of the amount payable in name of " aid." It is only 
the extraordinary aids^ that are regulated by this chapter : 
these are not to be taken without " common counsel " or 
the " Common Council " — for the Latin will bear either of 
these two meanings, which indeed in 12 15 were probably 
not yet differentiated from each other. If the Crown 
tenants by " common counsel " could refuse a grant, they 
could a fortiori make one upon conditions; fixing, for 
example, the amount of an extraordinary aid as well as the 
occasions of its payment. So far as aids were concerned, 
there was here no innovation upon existing practice. 

(2) Scutage. With regard to scutage, the requirement of 
consent was something very different. Scutage, in lieu of 
military service, was of the essence of the feudal relation : 
to make it impossible for the Crown ever to levy a scutage 
without consent of those who had to pay, was to go much 
beyond redress of the grievance suffered under John : it 
was to impose on him restrictions that his father had never 
acknowledged.^ 

The total omission of this chapter in 12 16 may have been 
partly occasioned by the consciousness that it contained an 
innovation unwarranted by custom: the reissue of 12 17 
said nothing of aids, and contented itself, in regard to the 
vexed question of scutages, with the vague declaration that 
for the future these should be taken as had been the custom 
under Henrv 11.^ 

In spite, however, of the omission of chapter 12 from all 
reissues of the Great Charter, it was customary for Henry's 
advisers to consult " the Common Council " before exacting 
a scutage or aid. This was done, for example, in 1222, 

1 " Extraordinary aids " here mean all aids other than the three normal ones. 

2 Miss Norgate, Minority, 15, thinks the innovation so undoubted as to justify 
Innocent's Bull annulling the Great Charter. Cf. Adams, Origin, 276 n. : "a 
demand in regard to scutage which custom did not warrant." Cf. ibid., 221-2, 
and supra, 71. 

2 See supra, p. 148. 



234 MAGNA CARTA 

when a Council granted an " aid for the Holy Land " of 
three marks for an earl, one mark for a baron, and twelve 
pence for a knight.^ The consent of a Council, indeed, 
was usually taken even for one of the three recognized 
feudal aids. 

II. Protection of London from arbitrary Exactions. 
Some attempt was made to protect the men of London from 
arbitrary demands : the insurgent leaders in this way dis- 
charged part of their debt to an ally with claims upon their 
gratitude.2 The Articles of the Barons contained important 
provisions affecting London ; and these were embodied in 
the Charter in slightly altered terms. ^ The present clause, 
for example, uses only one word, "aic^s," where the 32nd 
Article of the Barons referred to "tallages and aids." 
There is no evidence to show whether the omission had 
been deliberately planned, or was the result of inadvertence ; 
and the ambiguity inherent in both words makes it danger- 
ous to hazard a dogmatic opinion on the practical effect of 
the alteration. Yet a clearly-marked line can be traced 
between the respective meanings of the two terms when 
they are technically used."* 

(i) " Aidy" a vague word, is applicable to any payment 
that can be regarded as, in any sense, a freewill offering. It 
embraced gifts to the Crown, whether from prelate or 
burgess or feudal baron. London was stimulated towards 
acts of generosity by Kings of England both before and 
after John. There were times when "voluntary" aids 
(like the "benevolences " of Tudor days) could not safely 
be withheld.^ 

^Miss Norgate, Minority^ p. 194. ^See supra^ p. 35. 

3 See Article 23 (which became c. 33), Article 31 (c. 41), and Article 32 (cc. 12 
and 13), and cf. supra, p. 117. Whether Article 12 (c. 35) was more a benefit 
to, than a restraint upon, traders seems doubtful. 

* See, however, Ballard {British Borough Charters, Ixxx. ff. ) who seems to 
make the two things shade into each other. 

^Bracton, I. 2S8, holds that aids of this sort are personal not predial, for they 
look to persons not fiefs. Auxilium burgorum was sometimes a technical term, 
meaning sums paid by boroughs in lieu of 'Danegeld. See Round, Eng. Hist. 
Rev., XVIII. 309. In our text, however, "aids" must be more broadly inter- 
preted. 



CHAPTER TWELVE 235 

^^ (2) Tallage would appear to mean a toll or exaction 
imposed on individuals who had no option of refusal. 
Villeins were talliable at their lord's caprice, without appeal. 
Liability to tallage, however, did not necessarily imply 
servile status; for the King could tallage all inhabitants 
of towns on royal demesne. London itself, for all its 
wealth, political importance, and chartered privileges, still 
shared this unwelcome liability.^ 

(3) Comparison of Aid and Tallage, The " aid," being ' 
a voluntary offering, differed fundamentally from tallage, 
which was a forced payment. In theory, the citizens were 
free to name the sum they proposed to pay. If the King 
was satisfied, the city collectively became responsible for 
assessing, collecting and paying over the money : the 
King's representatives had no need nor right to interfere 
with individual citizens. The amount of a tallage, on the 
contrary, was fixed by the King's Justices, assessed by 
them per capita on individual citizens, who were subject to 
direct distraint by the agents of the Crown. It was to the 
advantage of a borough to forestall, by a liberal aid, the 
Crown's anticipated demand for a tallage, for the hated 
tax-gatherer was thus kept outside the city gates. An aid 
was more to the King's advantage also than a tallage : 
not only was he saved the trouble, expense, and delay of 
collection, but he obviated risk of loss through the insolv- 
ency of some of the individuals fixed upon. 

A story told by Madox^ brings out the contrast. A 
dispute had arisen between the King and the Londoners 
in 1255. To Henry's demand for 3000 marks of " tallage," 
they at first replied by offering 2000 marks of " aid," which 
the King refused. The citizens then denied outright their 
liability to tallage, but were confronted with entries in 
Exchequer and Chancery Rolls which contradicted their 
contention. On the morrow, the mayor and citizens 

^This statement, for which evidence is given infra, is not always admitted. 
Taswell-Langmead, En^. Const. Hist., p. 107, says: "The city of London can 
never have been regarded as a demesne of the Crown." For lists of prelates and 
barons paying tallage see Ludwig Riess, Historische Zeitschrift, Vol. 14, N.S. 
pp. 21 ff. (1904). 

2 T. 712, citing Mem. Roll 39 Henry III. 



236 MAGNA CARTA 

acknowledged that they were talliable, and paid the sum 
demanded. 

(4) London's attempts to escape tallage. There is ample 
evidence that London in John's reign was galled by the 
liability to tallage, and was ready to seize any loophole of 
escape. John's letter to the city in 1206 ^ refers to the 
serious damage done to his capital by the manner in which 
tallages had been assessed and collected. A document 
compiled about 12 10, in the interests of London, partly 
from authentic sources, purporting to be a Charter by 
William L, declares that all freemen shall hold their lands 
and possessions " free from every unjust exaction and from 
every tallage." ^ Finally, Miss Bateson in 1902 ^ called 
attention to a document of nine articles, which seem to be 
the heads of a petition prepared by the Londoners, probably 
in 12 15, in which they ask inter alia the abolition of all 
tallages except per comrnunem assensum regni et civitatis. 

(5) Effects of omission of " tallage " from Magna Carta. 
Why, if not through pure inadvertence, was the word 
" tallage," occurring in Articuli Baronum, omitted from the 
Charter? Widely different answers have been given. 
Prof. G. B. Adams ^ ingeniously argues that the omission 
was deliberately made in the interests of London. That 
city, now a full-blown commune, enjoyed the status of a 
feudal vassal : though liable to aids, its burghers resented 
any allusion to the servile " tallage " in connection with 
themselves. If Prof. Adams here interprets their attitude 
aright, the Londoners were ill-advised to refuse, on any 
such punctilio, to secure in the Charter incorporation of a 
definite protection from arbitrary tallage by the Crown — 
a grievance from which they were destined to suffer for 
more than a century thereafter. 

The true explanation, however, is more likely to lie in 
an opposite direction. The omission was, perhaps, made 
deliberately to the detriment of London, in deference to 
John's strong feeling on a point that did not affect the 

^jRoL C/aus., I. 64. 

2 Willehii Articuli Londoniis Retractati, in Liebermann, Gesetze, I. 490, c. 5. 

"^Eng. Hist. Rev., XVII. 726. ^ Ibid., XIX. 702 ; Origin, 358 fif. 



CHAPTER TWELVE 237 

barons personally. John, for his part, would be readily 
persuaded to renounce the right to take " aids " from the 
wealthy traders of the capital, if he preserved the more 
drastic privilege of tallaging them at will. The word 
" tallage " was dropt from the Charter, not to gratify 
London's pride, but to enable the Crown to have access 
to the city's treasure chests. 

(6) Nature of the protection accorded to London. The 
arrangement of this chapter is noteworthy : after securing 
redress of abuses pressing on the barons, a few compara- 
tively careless words are added : " in like manner it shall 
be done concerning aids from the city of London." The 
words " in like manner " are difficult to interpret, for the two 
cases are far from parallel. Do they mean that no aid can 
be taken from London without the same " common counsel 
of the realm " previously stipulated for the taking of 
scutages from the tenants in chief ? Probably not, for the 
method provided in chapter 14 for obtaining " the common 
counsel " would have been peculiarly ill-adapted to protect 
the Londoners, whose interests were not represented in the 
baronial assembly. The Petition of nine heads ^ had asked 
more than this, namely, that no tallage should be taken 
without common assent " of the kingdom " (that is, of the 
baronial assembly) and " of the city " — a double consent 
being thus required, as though " the common counsel " was 
not enough. 

High authorities suggest a different explanation for the 
clause in chapter 12, which is read simply as an assertion 
that only " reasonable " aids should be taken from London. ^ 
If that be so, no criterion of reasonableness is suggested, 
and such might be difficult to find.^ Subsequent history 
sheds no clear light on the intention of this clause. As 
the chapter was omitted from all reissues, no occasion ever 
arose of testing its meaning by actual practice. 

In deciding between the two suggested explanations, 

^ See stipra, p. 236. 2 Lords' Report on the Dignity of a Peer, I. 65. 

^In 1 168, when Henry II. took an aid for the marriage of his daughter, London 
contributed £(>\'J i6s. 8d., which might afford a precedent for a "reasonable " aid. 
See Pipe Roll, 14 Henry II., cited Madox, I. 585. 



238 MAGNA CARTA 

however, it should be noted that, though " councils " framed 
on the model of 12 15 continued for half a century to meet, 
they made no claim to interfere with the Crown's right to 
tallage London. Neither Henry nor Edward waited for the 
" common counsel of the realm " before enforcing their 
demands. 

Whatever may have been the intention of the framers of 
this clause with regard to London, it is notable that they 
allowed that city to stand alone. Magna Carta completely 
ignored that provision of the Articles of the Barons which 
extended the same protection " to citizens of other places 
who thence have their liberties," meaning the boroughs 
whose chartered privileges had been modelled upon those 
of the metropolis.^ Here, again, the alteration was pro- 
bably a concession to John made by the barons at their 
allies' expense.^ 

(7) Later history of the Crown's right to tallage the towns. 
The Crown continued at intervals to take tallages from 
London until 1340. It has sometimes been maintained, 
indeed, that the Confirmatio Cartarum of 1297 was intended 
to abolish this prerogative, and a document once con- 
sidered an authoritative version of the Confirmatio bore the 
suggestive title of De tallagio non concedendo. It is now 
well known that the latter document is unauthentic ; while, 
if the Confirmatio itself was intended to relieve the towns 
from tallages, it signally failed. Edward III. exacted 
tallages from London and other towns. Parliament, 
however, succeeded, in 1340, in passing a statute which 
abolished unparliamentary taxation of every kind. This 
act, sometimes styled by modern writers " the real statutum 
de tallagio non concedendo," finally settled the law,^ but 
did not prevent the King from trying to break that law. 

^ Cf. however, Davis, England under Normans^ 380. 

^ It might be argued that the last clause of chapter 13, extending to all towns a 
confirmation of liberties and customs, was intended to embrace this provision as to 
aids. If so, the draftsman has expressed himself clumsily, 

^ See Stubbs, Const. Hist., II. 548. *' Of the scope of this enactment there can 
be no doubt ; it must have been intended to cover every species of tax not author- 
ised by parliament, and ... it seems to have had the effect of abolishing the royal 
prerogative of tallaging demesne. " 



CHAPTER TWELVE 239 

Edward frequently disregarded the restrictions placed upon 
his financial resources, and with varying success. He 
rarely did so, however, without meeting protests; and the 
rule of law laid down in the act of 1340 was never repealed. 

III. Magna Carta and the Theory of Parliamentary 
Taxation. It is a commonplace of our text-books that 
chapters 12 and 14, taken together, amount to the Crown's 
absolute surrender of all powers of arbitrary taxation, and 
even that they enunciate a doctrine of the nation's right 
to tax itself.^ Yet the very idea of " taxation " in its 
abstract form, as opposed to specific tallages and exactions, 
levied on definite things or individuals, is essentially 
modern. The doctrine of the day was that the King in 
normal times ought "to live of his own," like any other 
land-owning gentleman. A regular scheme of " taxation" 
to meet t^e ordinary expenses of government was un- 
dreamt of. It is too much to suppose, then, that our 
ancestors in 1215 sought to abolish something which, 
strictly speaking, did not exist. The famous clause treats, 
not of " taxation " in the abstract, but of the scutages and 
aids already discussed. It does not concern itself with the 
rights of Englishmen as such, but chiefly with the interests 
of barons who held freeholds of the Crown, and incidentally 
and inadequately with those of the citizens of London. 
Several considerations place this beyond reasonable 
doubt. 

(i) The terms of the restriction are by no means wide 
or sweeping; but precise, accurate, and narrow. The 
" common counsel of the realm " was required for three 
exactions at the most : for scutages and for extraordinary 
aids from feudal tenants, and possibly also for aids from 
the city of London : that is all. Not a word is said of 
other forms of taxation or other groups of taxpayers. (2) 
If under-tenants received, by chapter 15, protection against 
mesne lords, they received none against the King. The 
Charter affected, not national "taxation," but feudal dues. 

^E.^. Taswell-Langmead, £ng/. Const. Hist., io6. Dr. Stubbs, Const. Hist., 
I. 573, considers that these words ** admit the right of the nation to ordain 
taxation." 



240 MAGNA CARTA 

(3) The scant measure of protection did not extend even to 
all Crown tenants. The King's villeins were, of course, 
excluded; and so were even freeholders whose tenure was 
other than that of chivalry. Socage tenants were left liable 
to carucage, while the-GfOtvh's right to raise the " farms " 
of its own demesnes was reserved. ^ (4) The Crown's initia- 
tive in " taxation " (here restricted in regard to " aids " and 
" scutages ") was, under many other names and forms, left 
intact. The King required no consent before taking prises 
and custom dues from merchandise reaching or leaving 
England, or before taking tolls and fines at inland markets 
under the plea of regulating trade. Tallages also were 
exigible at discretion from aliens and Jews, from tenants 
of demesne, from London and other chartered towns. (5) 
The assembly to be convened for taking " common counsel " 
was a narrow body, representative neither of the ranks and 
classes of the community, nor of the separate national 
interests, nor yet of the various districts of England. Its 
composition was homogeneous, an aristocratic council of 
the military tenants of the Crown, convened in such a way 
that only the greater among them were likely to attend.^ 

These facts serve as a warning not to read into Magna 
Carta modern conceptions which its own words will not 
warrant. This famous clause was far from formulating any 
doctrine of self-taxation ; it primarily affected impositions 
levied by John, not qua sovereign but qua feudal lord. 
Such as it was, it was omitted, along with its corollary 
(chapter 14), in 12 16 and subsequent reissues. 



CHAPTER THIRTEEN. 

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

^ See infra, under c. 25. 

2 Even when an honour escheated, its tenants "were not suitors of the Curia 
Regis.^^ See Report on Dignity of a Peer, I. 60. 



CHAPTER THIRTEEN 241 

et burgi, et ville, et portus, habeant omnes libertates et 
liberas consuetudines suas. 

And the city of London shall have all its ancient liberties and 
free customs, as well by land as by water; furthermore, we 
decree and grant that all other cities, boroughs, towns, and 
ports shall have all their liberties and free customs. 

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

The chief feature of London before the Norman Conquest 
seems to have been lack of proper municipal organization. 
Dr. Stubbs describes the capital during the eleventh century 
as " a bundle of communities, townships, parishes, and lord- 
ships, of which each has its own constitution." 2 It was 
thus a collection of small administrative units, rather than 
one large unit. Some semblance of legal unity was, it 
is true, afforded by the folkmoot, in which the citizens 
regularly assembled; by its smaller council known as 
" husteng " ; and perhaps also by its " cnihtengild " (if, 
indeed, this third body be not entirely mythical) ; while 
the existence of a " portreeve " shows that for some financial 
purposes the city was treated as one whole. London, how- 
ever, prior to the reign of Henry I. was far from possessing 
the machinery of an efficient municipal government. 

The first step towards a constitution is generally supposed 
to have been taken by the citizens when they obtained a 
charter from Henry I. in the last years of his reign (i 130-35). 
This is not strictly accurate. London, indeed, by that 

1 Firma is explained infra^ c. 25. 

2 Stubbs, Const. Hist.^ I. 439. Round, Commune^ 220, is in substantial agree- 
ment. Miss Bateson, however, thinks "there has been a tendency unduly to 
minimise the measure of administrative unity in the twelfth-century shire of 
London." See evidence produced by her, Engl. Hist. Rev., XVII. 480-510. 

Q 



242 MAGNA CARTA 

grant gained valuable privileges; but it did not obtain a 

constitution. The chief rights actually conferred by Henry 

were as follows : — (i) The firma was fixed at the reduced 

rate of £300 per annum, the citizens obtaining a lease in 

perpetuity of their own city with the surrounding county 

of Middlesex — the grant being made to the citizens and 

their heirs; (2) they acquired the right to appoint the 

sheriffs of London and Middlesex, implying the exclusion 

of the King's tax-collectors by men of their own choosing ; 

(3) a similar right of appointing their r)wn nominee as 

justiciar was also conferred on them, to the exclusion 

apparently of the royal justices of eyre. Many minor 

privileges were confirmed which need not here be specified. 

Mr. J. H. Round ^ argues with convincing force that these 

concessions, important as they were, did not confer a civic 

constitution upon London. Henry's charter, in his 

opinion, confirmed the separate jurisdictions and franchises, 

perpetuating the old state of disunion, rather than creating 

a new principle of cohesion. Mr. Round proves, further, 

that the new concessions were cancelled by Stephen in 1 141, 

when Geoffrey de Mandeville compelled Stephen to appoint 

him as sheriff and justiciar of London. Earlier in the same 

year, the citizens had risen against Matilda and tried to 

establish a sworn Commune, presumably of the continental 

type.2 When London was placed in Earl Geoffrey's hands, 

all vestige of this would be swept away, along with any of 

the privileges granted by Henry L that had endured till 

then. 

Henry H., indeed, granted a charter in 1155, which is 
usually interpreted as a full confirmation of the concessions 
of the earlier Henry .^ Mr. Round has proved the error of 
this opinion.^ The charter of 1155 restricted, rather than 
enlarged, the privileges of London, being couched in 
cautious and somewhat grudging terms. The main conces- 
sions of the earlier charter were omitted : the citizens no 
longer elected their sheriffs or justiciar ; the reduction of the 

^ Geoffrey de Mandeville^ 356. 2 William of Malmesbury, 11. 576. 

3 See e.g. Miss Norgate, Angevin Kings, II. 471. 
* Geoffrey, 367. 



CHAPTER THIRTEEN 243 

firma to £300 was not confirmed; and subsequent pipe 
rolls show that Henry doubled that amount. 

The next crisis came early in Richard's reign. Then it 
was, perhaps, that London obtained its municipal constitu- 
tion. Then also it may have regained the privileges 
precariously held under Henry I. and Stephen. The form 
in which the constitution came at last was, Mr. Round 
argues, borrowed from France, and was neither more nor 
less than the Commune, so well known on the Continent in 
the twelfth and thirteenth centuries. Mr. Round ^ has 
shown that these concessions were not, as has sometimes 
been supposed, voluntarily granted in 1189 by Richard I., 
but were extorted from his brother John, when that 
ambitious^prince was bidding for powerful allies to support 
his claim to act as Regent. London, Mr. Round main- 
tains, got its constitution on 8th October, 1191, under 
picturesque and memorable circumstances. While Richard 
tarried in the Holy Land, a scramble took place at home for 
the right to represent him. The Chancellor Longchamp 
had been appointed Regent; but John, wily and unscrupu- 
lous, ousted him, with the help of the men of London. At 
the critical moment, the metropolis had offered support on 
conditions, which included restoration of the short-lived 
privileges conferred by Henry L, and, in addition, a 
municipal constitution of the continental type. 

Mr. Round, in a notable passage, describes the scene. 
"When, in the crisis of October, 1191, the administration 
found itself paralysed by the conflict between John, as the 
King's brother, and Longchamp, as the King's represen- 
tative, London, finding that she held the scales, promptly 
named the ' Commune ' as the price of her support. The 
chronicles of the day enable us to picture to ourselves the 
scene, as the excited citizens, who had poured forth over- 
night, with lanterns and torches to welcome John to the 
capital, streamed together on the morning of the eventful 
8th October at the well-known sound of the great bell, 
swinging out from its campanile in St. Paul's Churchyard. 
There they heard John take the oath to the 'Commune,' 

^ Commune of London, 222. 



244 MAGNA CARTA 

like a French king or lord; and then London, for the first 
time, had a municipality of her own." ^ 

For any accurate definition of a Commune we look in 
vain to contemporary writers. Richard of Devizes ^ quotes 
with approval, " Communia est tumor flehis, timor regni, 
tepor sacerdotii." Some insight has been gained in recent 
years, however, into its exact nature. A Commune was a 
town that had obtained recognition as a corporate entity, 
as a link in the feudal chain, becoming the free vassal of 
the King or other lord, and itself capable of having sub- 
vassals of its own. 3 Its chief institutions were a mayor and 
elective council, generally composed of twenty-four mem- 
bers, some or all of whom were known as echevins or 
skivini. Perhaps, the chief peculiarity of the Commune 
was the method of its formation, namely, by popular 
association or conspiracy, involving the taking of an oath of 
a more or less revolutionary nature by the citizens, and its 
subsequent ratification by those in authority. It is gener- 
ally admitted that these communes, though revolutionary 
in origin, were not necessarily democratic in their 
sympathies. 

From 1 191 onwards, London was governed by its own 
mayor, an official chosen by the citizens, but holding office 
for life, until the citizens obtained a further concession in 
1 2 15. It has sometimes been argued that as a mayor was 
the natural head of a Commune, the continued existence of 
the one implied the existence of the other. It seems more 
likely, however, that if a Commune was actually set up in 
1 191, it did not long survive Richard's return from cap- 
tivity. Mayors were to be found in the twelfth century 
ruling over boroughs that were not technically " Com- 
munes " ; and Richard may have been willing to accept a 
mayor of London's choosing, while he repudiated the city's 
claim to independence as a Commune. 

When John became King, he granted three charters to 
the capital for a gersuma (or slump payment) of 3000 

1 Commune of London, 224. ^Select Charters, p. 252. 

^Luchaire, Communes Fran^aises, p. 97, defines it as '' seigneurie collective 
populaire.''^ 



CHAPTER THIRTEEN 245 

marks.i All franchises specified in the charter of Henry I. 
were confirmed, with one exception : the liberty to appoint 
a justiciar of their own, now seen to be inconsistent with 
the Crown's centralizing policy, was abandoned. None of 
these charters made mention of mayor or commune, but 
they confirmed some minor privileges gained in Richard's 
reign .2 

A fourth charter, dated 20th March, 1201, was of tem- 
porary interest. The fifth and last of the series came in the 
crisis of 12 15, and some light is possibly shed on it by 
comparison with the petition of nine articles already men- 
tioned,^ which seems to represent the demands made by 
the Londoners at that date. Besides exemption from 
arbitrary tallage and several minor concessions, they 
demanded the control of Thames, the annual election of 
their mayor in the folkmoot, freedom of access for foreign 
traders, and the right to distrain for debt against the persons 
and property of debtors. 

Some of these demands were granted by John's fifth 
charter, dated gth May, 12 15, some five weeks previous to 
Magna Charter, and representing the bait thrown by John 
to gain their support in this new crisis as he had gained 
it in the earlier crisis of 1191. The men of London 
obtained the right to appoint a mayor annually, and, if they 
chose, to depose him at the year's end and appoint another 
in his place, a right which Miss Norgate aptly calls " the 
crowning privilege of a fully constituted municipality." ^ 
The charter at the same time confirms all liberties already 
enjoyed, " as well within London as without, as well on 
water as on land, salva nobis chamherlengia nostra." The 
control of Thames and Medway, mentioned with more 
particularity in Magna Carta, seems to be here granted; 
while the freedom of access of foreign merchants is qualified 

1 Miss Bateson, En^/. Hist. Rev., XVII. 508. 

2 E.g. removal of obstacles in Thames and Medway. Cf. infra, c. 33. 
^ Supra, p. 236. 

'^John Lackland, 228. From this date the list of mayors shows frequent, some- 
times annual, changes. Serlo, the mercer, was mayor in May, 121 5, when London 
opened its gates to the insurgents, while William Hardell had succeeded him 
before 2nd June, 1216. 



246 MAGNA CARTA 

by John's reservation of the right to take toll from them by- 
appropriating such of their choicest wares as his chamber- 
lain might select for the royal household.^ 

If the nine articles contain London's demands in 12 15, 
the Charter of 9th May gives what John was willing to 
promise in return for the city's support; and the Articuli 
Baronum what the barons compelled him to grant to the 
city after it had preferred their alliance to his ; while Magna 
Carta shows some slight modifications in the King's favour. 

Such was the London whose privileges were confirmed by 
chapter 13 of Magna Carta in words that avoided details and 
confined themselves to a general confirmation of ancient 
"liberties and free customs." ^ Neither mayor nor Com- 
mune is mentioned; but the question has been raised 
whether by implication the Great Charter does not recognize 
the existence of one or both of these. 

As the charter of 9th May had granted to London the 
right to elect a mayor, and as the mayor was appointed one 
of the 25 executors under chapter 61, it is clear that Magna 
Carta accepted that magistrate as head of the city's govern- 
ment ; and the recognition of a mayor has sometimes been 
held to suggest also the recognition of a Commune. 
Professor Adams, on the other hand, has based an argu- 
ment for the existence of a Commune after June, 12 15, 
mainly upon the omission of the word tallage from chapter 
12, which thus makes it possible to infer that an auxilium 
is the only imposition to be lawfully levied on London .^ He 
seeks to show, further, that London lost this status of a 
Commune in 12 16, when the charter was reissued without 
the chapter associating London with the payment of 
auxilium : " this clause was omitted, and with it London's 
legal right to a Commune fell to the ground." ^ 

^ See text of Charter in Se/. Chart. ^ 315. 

"^ The meaning of both words is discussed infra, c. 39. 

3 See supra, p. 236. M. Petit-Dutaillis {Studies Supplementary, 102) doubts 
whether the citizens in 1215 had any wish to become a Commune, and holds that 
their desire was to escape burdensome exactions, no matter what these might be 
called. Prof. Adams {Origin, 367) maintains, in reply, that the only practicable 
method of effecting this exemption was to obtain recognition as a Commune. 

^Ibid.,z(,i. 



CHAPTER THIRTEEN 247 

It is pertinent to note, however, that the Patent Rolls 
for 1221 ^ refer to " the mayor and Commune of London." 
If this implies the existence of a real Commune of the conti- 
nental type, the date of its final abolition may possibly have 
been the year following, when London quarrelled with the 
young King's ministers and had difficulty in making peace.^ 
On the whole, it must be left an open question whether or 
not the privileges granted to London in 12 15 included the 
establishment of a Commune, and, if so, when that form of 
municipal government came to an end. 

In this chapter of John's Magna Carta (in contrast with 
the last clause of chapter 12), London did not stand alone. 
** All other cities, boroughs, towns and ports " were con- 
firmed in their liberties and free customs. A specification 
of these was, of course, impossible ; each borough was left 
to prove its privileges as best it might. In the reissues of 
Henry, London shared the distinction of being mentioned 
by name with " the barons of the Cinque ports," who from 
their wealth, their situation, and their fleet, were allies worth 
conciliating. They played, indeed, a prominent part in the 
decisive naval victory gained by Hubert de Burgh on 24th 
August, 12 17. 3 

Among the most cherished privileges claimed by the 
chartered boroughs were the rights to exact tolls and to 
place oppressive restrictions upon rival traders not mernbers 
of their guilds, foreigners and denizens alike. The general 
confirmation of privileges in this chapter has been held 
to contradict chapter 41, which grants protection and 
immunities to foreign merchants.^ The inconsistency, 
however, is perhaps greater in appearance than reality, 
since the later chapter aimed at abolition of " evil customs " 
inflicted by the King, not of those inflicted by the boroughs. 
At the same time, any favour shown to aliens would be 
bitterly resented by English traders. If the charter had 
been put in force in its integrity, the more specific privileges 
in favour of foreign merchants wo'uld have prevailed in 

''Rot. Pat., 303-4. 

2 See Norgate, Minority, 186, and authorities there cited. 

2 See supra^ p. 145. ' * Cf. Pollock and Maitland, I. 447-8. 



MAGNA CARTA 

opposition to the vague confirmation of borough " liberties," 
wherever the two conflicted.^ 

Other portions of John's Great Charter that specially 
affected Londoners were the last clause of chapter 12, and 
chapters S3 ^i^d 4^ ; while many of the privileges granted 
or confirmed in other chapters were shared by them. 



CHAPTER FOURTEEN. 

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

And for obtaining the common counsel of the kingdom anent 
the assessing of an aid (except m the three cases aforesaid) or 
of a scutage, we will cause to be summoned the archbishops, 
bishops, abbots, earls, and greater barons, severally by our 
letters ; and we will moreover cause to be summoned generally, 
through our sheriffs and bailiffs, all others who hold of us in 
chief, for a fixed date, namely, after the expiry of at least forty 
days, and at a fixed place ; and in all letters of such summons 
we will specify the reason of the summons. And when the 
summons has thus been made, the business shall proceed on 
the day appointed, according to the counsel of such as are 
present, although not all who were summoned have come. 

This chapter, which has no equivalent among the Articles 
of the Barons, appears here incidentally : it would never 
have found a place in Magna Carta but for the need of 
machinery to give effect to chapter 12.2 

^Cf. in/ra, c. 41. 

*0n the whole subject of the comimme concilhan, cf. supra, 129-131 and 149. 



CHAPTER FOURTEEN 249 

As chapter 12 is frequently supposed to enunciate a 
general doctrine of taxation, so this one is cited as enunci- 
ating a doctrine of parliamentary representation ; while the 
close connection between the chapters is taken as evidence 
that the framers of Magna Carta had grasped the essentially 
modern principle that taxation and representation ought 
always to go together. ^ In this view, the barons at Runny- 
mede are given credit for anticipating the best features 
of modern parliamentary government. The text, however, 
will scarcely bear so liberal an interpretation. ^ Vital points 
of difference between the principles of Magna Carta and the 
modern doctrine of representation are revealed by analysis. 

Under chapter 12, scutages and extraordinary aids could 
only be levied "with common counsel of our kingdom," 
and now chapter 14 fixes authoritatively the composition of 
an assembly charged with this function. The same Latin 
words which signify joint " consent " or counsel came to 
signify also the "Common Council," afterwards of vital 
constitutional importance, continuing under a new name the 
old curia regis, and passing in turn into the modern Parlia- 
ment. The duties and constitutional importance of this 
commune concilium may be considered under six heads. 

I. Nature of the Summons. Formal writs had to be 
issued, specifying the time, place, and reason of assembling, 
at least forty days in advance. Each of the really powerful 
men of the realm — archbishops, bishops, abbots, earls, and 
" other greater barons " — received a separate writ addressed 
to him individually, while the " smaller barons " were sum- 
moned collectively and indirectly through the sheriffs and 
bailiffs of each district. 

II. Composition of the Council. It is clear that the 
meetings contemplated were purely baronial assemblies, 
since none but Crown tenants were invited to attend. " The 
common consent of my kingdom," in John's mouth, was 

^ E.g: Anson, Lmu and Custom of the Constitution (ist ed.), I. 14, declares that 
one of the two cardinal principles of the Charter is "that representation is a con- 
dition precedent to taxation." This has been altered in later editions. 

2 Prof. Adams {Origin, 276 n.) perhaps goes too far towards the opposite extreme 
in holding this chapter " an unnecessary addition to the Articles of the Barons and 
quite without importance." Contrast Round as cited infra, p. 251. 



250 MAGNA CARTA 

synonymous with " the consent of my barons." ^ The 
King's Council had by this time freed itself from any com- 
plicated theories as to its own composition, which may ever 
have hampered it. It was now entirely homogeneous, a 
feudal muster of Crown-vassals.^ 

It is unnecessary here to examine the rival theories pro- 
fessing to explain the composition of the Anglo-Saxon 
Witenagemot, or to discuss the exact connection between 
that institution and the Curia Regis of the Norman Kings. 
As matter of fact, the early constitution of the court of the 
Conqueror or of Ruf us seems to have been monarchic rather 
than aristocratic or democratic ; that is to say, it depended 
to a great extent on the personal will of the King. No 
evidence exists, of date anterior to the Great Charter, of 
any magnate thrusting himself unbidden into a royal 
council or forcing the King to issue a formal invitation. 
On one occasion, indeed, the action of Henry II. in omit- 
ting to issue a writ laid him open to criticism. This was in 
October, 1164, when a special council was summoned to 
Northampton to pass judgment upon questions at issue 
between the King and Thomas a Becket. The primate was 
ordered to appear for judgment; but the formal writ of 
summons, which every holder of a barony was wont to 
receive, was withheld. Apparently, contemporary opinion 
condemned this omission.^ It is safer to infer, then, that 
as early as 1164, the method of issuing these writs had 

^This is illustrated by comparison with the phrases in which Henry and his 
sons expressed •* the common consent " : e.^. (i) the Assize of Clarendon in 1166 
{Select Charters, 143) bears to have been ordained by Henry II. **^<j consilio 
07nniuin baj-omiin stio?-um^^ ; (2) John's Charter to Innocent in 1213 declares that 
he acted ^^ coitinmni consilio baronum nostrorttin^'' {Select Charters, 285); (3) 
Matthew Paris makes Earl Richard complain to Henry III. in 1255 that the 
Apulian business had been entered on '•'■sine consilio suo et assensu barnagii" 
{Chron. Maj\, V. 520). 

2Cf. Round {Peerage and Pedigree, 349 ff.), who speaks of this as creating "a 
harsh and artificial division of society." Its composition was stereotyped, and 
Mr. Round rejects alike the theory of Stubbs {Const. Hist., I. 566) that the 
Council was being gradually extended, and that of Freeman {Norman Conquest, 
V. 419) that it was suffering contraction. Cf. also Adams, Origin, 226 n., and 
the authorities there collected. 

^ See Ramsay, Angevin Empire, p. 54, and authorities there cited. 



CHAPTER FOURTEEN 251 

become uniform, but this constitutional understanding was 
not reduced to writing until embodied in Magna Carta. 
It was in 12 15 that the magnates of England formulated a 
distinct claim to be present at the King's councils; -^nd 
even then the demand only referred to assemblies sum- 
moned for one specific purpose. Previously, attendance 
was reckoned not as a privilege, but rather as a burden 
incident to the possession of land.^ 

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

III. Position of " Minor Barons." Crown-tenants varied 
in power and position from the great earl, who owned the 
larger share of one or more counties, to the small free- 
holder with a few hides or acres of his own. A rough 
division was drawn somewhere in the midst; but the 
boundary was vague, and this vagueness was probably 
encouraged by the Crown, whose requirements might vary 
from time to time.^ The Crown-tenants on one side of this 
fluctuating line were harones majores ; those on the other, 
harones minores. The distinction had been recognized as 
early as the days of Henry 11.;^ but Magna Carta helped 
to stereotype it, and contributed to the growing tendency 
to confine the word " baron " to the greater men.^ The 
smaller barons grudged the long journeys and the expense 
of attending Councils whose decisions they were powerless 

1 See L. O. Pike, House of Lords, 92, "There is no trace of any desire on the 
part of the barons to be summoned to the King's great Council as a privilege and 
an honour before the reign of John." Cf. also Report on the Dignity of a Peer, I. 
389. 

2 Peerage and Pedigree, 355-6. ^ See Prof. Medley, Eng. Const, Hist., 123. 
^Dialogus de Scaccario, II. x.D., '' baronias scilicet majores seu minores.^^ 

^Cf. supra, c. 2. Prof. Vinogradoff, Law Quart. Rev. XXI. 255, shows that 
" baronia " long remained a technical term for the body of freemen holding from 
the king, both great and small. 



252 MAGNA CARTA 

to influence ; and they found a more fitting sphere for their 
energies in the meetings of the shire. For these reasons, 
they were prepared to ignore any summonses they might 
receive. In this respect, in Mr. Round's ^ opinion, the 
feudal theory " broke down in England." 

Three distinct theories have been advanced as to the 
position occupied by the "minor barons " in the Common 
Council, (i) The duty of attendance was burdensome on 
the poorer Crown-tenants. It has been suggested that the 
device of inviting them by general summons was intended 
as an intimation that they need not come. This is the view 
taken by Prof. Medley .^ (2) Dr. Hannis Taylor holds an 
opposite opinion, reading this chapter as an attempt " to 
rouse the lesser baronage to the exercise of rights which 
had practically passed into desuetude." ^ If such an 
attempt had really been made, and had succeeded, the 
result would have been to leave no room for the future 
introduction of the representative principle into the national 
council. (3) A third theory holds that the smaller Crown- 
tenants were called in a representative capacity. A few 
knights (probably elected for this purpose by their fellows) 
were expected to attend to represent the others. Dr. Stubbs 
seems predisposed towards this opinion, although he 
expresses himself with his usual caution.^ 

It may be suggested, even at the risk of seeming to invent 
a fourth theory in a series already too numerous, that to 
the great men who framed the clause it was a matter of 
supreme indifference whether their humbler fellow-tenants 
attended or stayed away. The general summons expressed 
neither an urgent desire for their presence, nor yet an 
intimation that they were not wanted; but merely con- 
formed with established usage, and left with each " minor 
baron " the decision whether he should come or stay away. 

1 op. cit.^ 353. Cf. also his A'm^j Serjeanties^ 36; Commune of London \ 252-3. 

'^ Eng. Const. Hist., 123. "The smaller tenants-in-chief would thankfully 
regard the general summons as an intimation to stay away." 

^ Eng. Const., I. 466. 

* See Const. Hist., I. 666. " Whether or no the fourteenth Article of the Great 
Charter intended to provide for a representation of the minor tenants-in-chief by a 
body of knights elected in the county court," etc. 



CHAPTER FOURTEEN 253 

His presence would make little difference upon the delibera- 
tions of the magnates. 

IV. Representation. It is well to hesitate before apply- 
ing to ancient institutions a word so essentially modern as 
" representation." In a sense, the reeve and four best men 
of every village " represented " their fellows in the county 
court from an early age ; and in a somewhat different sense 
the feudal lord " represented " his free tenants and villeins 
in the King's court; but* in neither instance was there any- 
thing approaching the definite relation which exists at 
present between the member of Parliament and his con- 
stituents. Magna Carta shows no tendency whatever to 
adapt this expedient of representation, even in its crudest 
form, to the composition o(_ the Common Council. The 
councillors whose summons was enjoined were all of one 
type, military tenants of the Crown, each of whom was to 
attend in his own interests not in those of his class, still 
less of his district or of the community as a whole. The 
barons, great and small, might be present, each man for 
himself; but the other contributors to the King's exche- 
quer were ignored.^ 

V. Powers of the Council. It was not until long after 
the days of Magna Carta that Parliament secured the most 
important of those functions now deemed essential to its 
existence. No claim was made on behalf of the commune 
conciliutn to be consulted in the making of laws or in the 
performance of administrative duties by the Crown : no 
effort was made towards formulating any doctrine of 
ministerial responsibility. This assembly, narrow and 
aristocratic in composition, had only one right secured 
to it, a limited control over taxation. Even here, as we 

^The writs of 7th November, 1213, are commonly regarded as introducing the 
representative principle into the national assembly, and in this view the barons' 
scheme embodied in Magna Carta has been considered as reactionary by com- 
parison. Cf. Anson, Law and Czistom^ !• 44 : '* The provisions of 1 215 described 
an assembly which was already passing away." There are difficulties, however, 
connected with the interpretation of those writs ; and recent authorities are 
inclined to point to 1264, rather than to 1213, as the beginning of the systematic 
appHcation of representation to Parliament. See Adams, Origin^ 317, 340. Cf. 
also sjipra, 29-30. 



254 ..^> MAGNA CARTA 

have seen, no general claim was put forward. It had no 
right to control the national purse : the barons merely 
protected their own individual pockets against an increase 
of feudal burdens. A modern Magna Carta would have 
contained a careful list of the powers and privileges of 
" the common council of the realm." ^ 

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

VI. Rights of Majorities and Minorities. The medieval 
conception of solidarity was defective ; the King's council 
j acted too much like a fortuitous gathering of unrelated 
[individuals, and too Tittle like a recognized organ of the 
i body politic. " No new exactions without consent of the 
individual taxed" was nearer the ideals of 12 15 than "no 
taxation without consent of Parliament." Each " baron " 
was summoned on his own behalf; and it is doubtful how 
far a dissenting minority could be bound by a decision of 
the rest. Accordingly, the framers of Magna Carta deemed 
it necessary to assert what would be too obvious to modern 
politicians to require assertion — namely, that when the 
commune concilium had been properly convened, its power 
to transact business should not be lost because a section 
of those summoned chose to stay away. " The business 
shall proceed on the day appointed, according to the advice 
of such as shall be present, although all that were sum- 
moned do not come." Not all business was competent, 
however, for the cause of summons had to be mentioned in 
the writs. If these writs were in order, the Council, so we 
may presume, had power to impose aids or scutages on 
those who were absent. ^ 

* Cf. Report on Dignity of a Peer, I. ^t^. 

^Cf. Stubbs, Const. Hist., I. 607: ''Absence, like silence, on such occasions 
implies consent." 



I 



CHAPTER FOURTEEN 255 

Nothing is said, however, as to the validity of a protest 
made by those who came and expressed disapproval. As 
the substance of this chapter was observed in practice 
(though omitted from subsequent confirmations), a prece- 
dent of the year 1221 may illustrate the interpretation put 
upon it by contemporary practice. A Council summoned 
by William Marshal had consented to a scutage, and the 
Bishop of Winchester was assessed at 159 marks for his 
knight's fees. He refused to pay, on the ground, quite 
untenable by modern standards, that he had dissented from 
the grant. The plea was accepted by the Regent, and the 
exchequer adjudged bishop Peter quit of the payment. ^ 
The incident shows how far the statesmen of the day were 
from realizing the principles of modern political theory. 
They had not yet grasped the conception of a Council 
endowed with constitutional authority to impose its will on 
a dissenting minority. Here it was apparently a minority 
of one.2 

From this time forward the Common Council was almost 
invariably consulted before the Crown attempted to levy 
such contributions; and sometimes was bold enough to 
make conditions or to decline payment altogether, the first 
instance on record of an outright refusal taking place in 
a Parliament held at London in January, 1242.^ The 
barons, in October, 1255, if Matthew Paris has not fallen 
into error, considered that the provisions of chapters 12 
and 14 of John's Magna Carta were still in force, although 
they had been omitted in the reissues of Henry HI. When 
the King asked a liberal aid in furtherance of his scheme 
for securing the Crown of Sicily for his son Edmund, those 
present at the Council deliberately refused, on the ground 
that some of their peers had not been summoned " accord- 
ing to the tenor of Magna Carta." ^ 

^See Pipe Roll Qi^ Henry III., cited Madox, I. 675. 

2 For the beginnings of the modern doctrine of the rights of majorities see infra 
under c. 61. 

3 See Prothero, Simon de Montfort, 67, and authorities there mentioned. 

*See M. Paris, Chron. MaJ., V. 520. Note, however, that the version of the 
Charter given in his own history contains no such requirement. The barons in 
1255 may have had access to the version of 12 15. 



256 MAGNA CARTA 



CHAPTER FIFTEEN. 

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

We will not for the future grant to any one licence to take an 
aid from his own free tenants, except to ransom his body, to 
make his eldest son a knight, and once to marry his eldest 
daughter ; and on each of these occasions there shall be levied 
only a reasonable aid. 

This chapter confers on the tenants of mesne lords pro- 
tection similar to that already conferred on Crown-tenants : 
money is no longer to be extorted arbitrarily by their lords. ^ 
Different machinery, however, had here to be adopted, since 
the expedient of chapter 12 (" the common counsel of the 
realm ") was inapplicable. 

I. Points of difference between tenants-in-chief and 
under-tenants. Tenants of mesne lords were in some 
respects better off than tenants of the King,^ but in others 
their position was worse. Not only had they to satisfy 
demands of their own lord for "aids," but part of every 
burden laid by the King upon that lord's shoulders was 
transferred to theirs. In seeking to protect under-tenants, 
Magna Carta looked, not to the common council, but to 
the King. No mesne lord could compel his tenants to 
contribute to his necessities without written licence from 
the Crown ; and the Crown was now forbidden to issue 
such licences except upon the usual three occasions.^ 

^ The chapter is, therefore, on the one hand, a supplement of cc. 12 and 14 ; on 
the other, a particular application of the principle enunciated in c. 60, which 
extended to sub-tenants benefits secured to Crown-tenants by previous chapters. 

2 The exemptions enjoyed by them are explained under c. 43. 

^ By strict feudal theory the King had no right to interfere between the barons 
and their sub-tenants, (i) The need for royal writs was thus a usurpation. 
(2) Those writs were "only letters of request," not binding on sub-tenants. See 
Adams, Origin, 230-2. 



CHAPTER FIFTEEN 257 

Contrast this procedure with that which affected Crown- 
tenants : — 

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

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

(3) A check upon such exactions was sought, not in the 
court baron, but in the need for a royal licence. The 
necessity for this may at first have been a practical, rather 
than a legal, one ; for executive power lay with the officers 
of the Crown alone, and the sheriff gave his services only 
at the King's command. ^ The Crown thus exercised what 

iBracton's Note-hook^ No. 1146, cited Pollock and Maitland, I. 331. 

2 In theory, in Henry II. 's reign at least, a royal writ was not required in the 
normal case. See Dialogus, II. viii., and the editors' comment (p. 191) : 
'* Normally the levying of money under any pretext from a landowner gave him a 
right to make a similar levy on his under-tenants." As regards scutage^ a distinc- 

R 



258 MAGNA CARTA 

was virtually a power of veto over all aids taken by mesne 
lords. Such a right, conscientiously used, would have 
placed an effectual restraint on their rapacity. John, 
however, sold writs to every needy lord who proposed to 
enrich himself at his tenants' expense. Magna Carta for- 
bade the two tyrants thus to combine against sub-tenants, 
enunciating a hard-and-fast rule which, if duly observed, 
would have struck at the root of the grievance : no writ 
could be lawfully issued except on the three well-known 
occasions. 

II. The Influence of Magna Carta upon later Practice. 
This chapter, along with chapters 12 and 14, was discarded 
by Henry III.; and little difference, if any, can be traced 
between the practices that prevailed before and after 12 15. 
Mesne lords invariably asked the Crown's help to collect 
their aids. They could not legally distrain their free- 
holders, except through the sheriff, and this was, in part 
at least, a result of Magna Carta. ^ 

Henry III., however, disregarded the rule which forbade 
the licensing of extraordinary aids. Like his ancestors, 
he was prepared to grant writs on almost any plausible 
pretext. From the Patent and Close Rolls, as well as from 
other sources, illustrations of the Crown's earlier and later 
practice can readily be collected: (i) Scutages. In 1217, 
for example, Henry granted permission to all Crown 
tenants who had served in person to collect scutage from 
their knights.^ / 

(2) Ordinary Aids, (a) John in 1204 authorized the 
collection of " an effectual aid " from the knights and free- 

tion was recognized. The lord who actually paid scutage might collect it from his 
sub-tenants without a licence ; but, if he served in person, he could recover none 
of his expenses except by royal writ. See idid.j and cf. Madox, I. 675. It is 
necessary, however, to avoid confusion between two types of writ, (a) that which 
merely authorized contributions, e.£., de scutagio habendo', {b) that which com- 
manded the sheriff to give his active help. In later practice, the sheriff often 
collected scutage from the sub-tenants and paid it directly to the Crown. Pollock 
and Maitland, I. 249-253. 

^Cf. Pollock and Maitland, I. 331 : "The clause expunged from the Charter 
seems practically to have fixed the law. " 
* Close Rolls, I. 306, cited Pollock and Maitland, I. 331. 



CHAPTER FIFTEEN 259 

holders of the Constable of Chester for the ransom of their 
lord.^ (b) A royal writ in 1235 allowed Henry Tracey, as 
already mentioned, to take an aid for his daughter's 
marriage. 

(3) Special Aids, (a) When a fine of sixty marks was 
incurred in 1206 by the Abbot of Peterborough, John 
allowed him to distrain his under-tenants.^ (b) An heir, 
paying relief, might likewise take reasonable contributions 
from freeholders.^ (c) The lord's debts were frequently 
paid by his tenants. The returns to the Inquest of 11 70 
contain particulars of " sums given individually by some 
forty burgesses of Castle Rising towards paying off the 
mortgages of their lord, the Earl of Arundel, who was 
clearly in the hands of the Jews " ^ while in 1234 the Earl 
of Oxford and the Prior of Lewes each obtained a letter 
patent distraining tenants to contribute to discharge their 
debts. ^ Evidence is thus preserved that Henry III. took 
full advantage of the omission from his own charters of 
this part of his father's promises. He did not question 
the justice of such writs, if good fees were paid. His 
letters authorized the taking of a " reasonable " aid, without 
hinting at any mode of determining what that was. This 
is illustrated by the procedure adopted by Henry Tracey in 
1235, when he debated with his assembled knights of 
Devonshire the amount to be paid as "reasonable," and 
finally accepted 20s. per fee.^ This same mesne lord, how- 
ever, twelve years later, obtained a writ bidding the sheriff 
of Somerset assist him to collect " the scutage of Gascony " 
at 40s. per fee.'^ 

The first Statute of Westminster virtually reverted to the 
rule laid down in 12 15, for its terms imply that aids could 
only be taken on the three well-known occasions. Only 

'^Patent Rolls, 5 John, cited Madox, I. 615. 

2 Close Rolls, 7 John, cited Madox, I. 616. 

'See Glanvill, IX. 8. *See Round, Commune of London, 130. 

5 See Madox, I. 617, citing Patent Rolls, 18 Henry III. Various other 
examples are given by Pollock and Maitland, I. 331, e.^. ''the earl of Salisbury, 
to enable him to stock his land." 

^ Supra, p. 257, and cf. Pollock and Maitland, I. 331. 

'See Madox, I. 677. 



26o MAGNA CARTA 

20S. could be taken from a knight's fee and an equal sum 
from land held in socage of the annual value of ;^20. No 
aid for a knighthood could be taken before a son was 15 
years of age, or for a marriage until a daughter was 7. 



CHAPTER SIXTEEN. 

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

No one shall be distrained for performance of greater service for 
a knight's fee, or for any other free tenement, than is due therefrom. 

For military tenants, the transition from scutage to 
service was a natural one. John declared that no free- 
holder should be constrained to do more service for his 
lands than he was legally bound to do. Disputes might 
arise, however, as to what extent of service actually was 
due in each particular case, and Magna Carta did nothing 
to remove such ambiguities. The difficulties of definition, 
indeed, were enormous, since the duration and conditions 
of service might vary widely, in consequence of special 
exemptions or special burdens which appeared in title 
deeds or rested upon immemorial usage. The barons could 
not enter on so intricate and laborious a task^ 

One grievance may have been specially in their minds. 
They had frequently objected to serve abroad, particularly 
during John's campaigns in Poitou.^ To force them to 
serve in the south of France, or to fine them for staying at 
home, was, they may well have argued, to distrain them 
ad faciendum majus sermcium. de feodo militis quam. inde 
dehetur. When they inserted these words in the Charter, 
they doubtless regarded them as a prohibition of com- 
pulsory service in Poitou, at all events.^ The clause was 

^ See the authorities cited supra, p. 68, n. 3, and 69, n. i. 

2 In the so-called "unknown Charter of Liberties " (see Appendix) John con- 
cedes to his men ** ne cant in exercitu extra Angliam nisi in Normanniam et in 
Brittaniam" a not unfair compromise, which may possibly represent the sense in 
which the present chapter was interpreted by the barons. See, however, Adams, 
Origitiy 232, who takes a different view. 



CHAPTER SIXTEEN 261 

wide enough, however, to include minor grievances. The 
barons did not confine its provisions to miHtary service, 
but extended it to other forms of freehold tenure (" nee de 
alio libera tenemento "). No freeholder, whether in socage, 
serjeanty, or frankalmoin, could in future be compelled to 
render services not legally due. 

If the barons thought they had thus settled the vexed 
questions connected with foreign service, they deceived 
themselves. Although this chapter (unlike those dealing 
with scutage) remained in all subsequent confirmations, 
it was far from preventing disputes. Yet the disputants in 
future reigns occupied somewhat different ground. From 
the days of William I. to those of Charles II., when the 
feudal system was abolished, quarrels frequently arose, the 
most famous of which, in 1297, led to Edward's unseemly 
wrangle with his hereditary Constable and Marshal, who 
refused to embark for Gascony except in attendance on the 
King's person.^ 

It has been shown in the Introduction ^ how the obliga- 
tions of a military tenant fell naturally into three groups 
(services, incidents, and aids), while a fourth group 
(scutages) was added when the Crown commuted military 
service for its equivalent in money. Feudal grievances 
may be arranged in four corresponding groups, each 
redressed by special clauses of Magna Carta : abuse of aids 
by chapters 12, 14, and 15 ; of feudal incidents y by chapters 
2 to 8; of scutage, by chapters 12 and 14; and of service, 
by the present chapter. 



CHAPTER SEVENTEEN. 

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

Common pleas shall not follow our court, but shall be held in 
some fixed place. 

^ Walter of Hemingburgh, II. 121. Cf., on the whole subject of foreign service, 
supra, 67-76. 
^ Supra, 59-69. 



262 MAGNA CARTA 

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

I. The Curia Regis as a Court of Law. The evil com- 
plained of was a characteristically medieval one, and arose 
from the fact that all departments of government were 
centred in the King's household. This Curia Regis, 
indeed, united in itself the functions of the modern Cabinet, 
of the administrative departments (such as the Home Office, 
the Foreign Office, and the Admiralty), and of the various 
legal tribunals. It was the parent inter alia of the Court 
at St. James's and the courts at Westminster. Nothing 
could be done outside of the royal household, and that 
household never tarried long in any one spot. Everything 
was focussed to one point, but to a point constantly in 
motion. Wherever the King went, there the Curia Regis, 
with all its departments, went also. The entire machinery 
of royal justice followed Henry II., as he passed, some- 
times on the impulse of the moment, from one of his 
favourite hunting seats to another. Crowds thronged after 
him in hot pursuit, since it was difficult to transact business 
of moment elsewhere. 

This meant intolerable delay, annoyance, and expense. 
The case of Richard of Anesty is often cited in illustration. 
His own account is a graphic record of his journeyings in 
search of justice, throughout a period of five years, during 
which he visited in the King's wake most parts of England, 
Normandy, Aquitaine, and Anjou. The plaintiff, although 
ultimately successful, paid dearly for his legal triumph. 
Reduced to borrow from the Jews to meet enormous out- 
lays, mostly travelling expenses, he had to discharge his 
debts with accumulations of interest at the ruinous rate of 
86f per cent.^ 

II. Common Pleas and Royal Pleas. Long before 12 15, 

1 Cf. J. F. Stephen, I/isL of Crim, Law, I. 88-9. 



CHAPTER SEVENTEEN 263 

litigations conducted before the King's courts had come 
to be divided roughly into two classes, according as the 
royal interests were or were not specially affected by the 
issue. Those on one side of this fluctuating line were 
known as royal pleas, or "pleas of the Crown," provisions 
for holding which are contained in chapter 24, those on 
the other side as ordinary or "common pleas," to which 
alone the present chapter refers. As these ordinary suits 
did not require to be determined in the royal presence, it 
was possible to appoint a bench of judges to sit permanently 
in some fixed spot, selected to suit the convenience of 
litigants. No town was named in Magna Carta; but 
Westminster, even then the natural home of law, was 
probably intended from the first. It is Westminster that 
Sir Frederick Pollock has in mind when he writes : " We 
may also say that Magna Carta gave England a capital." ^ 
The barons in 12 15, in asking this reform, were not insist- 
ing on any startling innovation, but demanding merely 
the observance of a rule long recognized. During most of 
John's reign, a court did sit at Westminster dispensing 
justice, with more or less regularity; and there most 
" common pleas " were tried, unless John ordered other- 
wise.2 Magna Carta confirmed the understanding that 
'' common pleas " should not dance attendance on the King, 
though it did not name any one fixed place where they 
should be tried.^ 

III. Influences of Magna Carta on genesis of Courts of 
Common Law, The ultimate consequences of this reform 
reached further than was foreseen. Intended to remove a 
practical grievance, it had important effects on the develop- 
ment of the English Constitution. By securing for 
common pleas a permanent home, it gave an impetus to 

'^Jurisprudence and Ethics, 209. Sometimes, however, another " fixed place " 
was substituted. The Court of Common Pleas sat once at York under Edward III. 
and once at Hertford under Elizabeth. See Maitland, Select Pleas of the Crown^ xiii. 
The statute 2 Edward III. c. ii enacted that it should. not be removed to any 
new place without due notice. 

■See Prof. Maitland, Select Pleas of the Crown, xiii.-xvi. 

3 See Pollock, Expansion of Common Law, 63 n. Cf. Holdsworth, I. 75. 



264 MAGNA CARTA 

the disintegrating tendencies already at work within the 
many-sided household of the King. It helped forward 
the cleavage destined to divide completely the future Courts 
of Westminster from the Court of St. James's and from 
Downing Street. Nor was this all : the special treatment 
accorded to " common pleas " emphasized the distinction 
between them and royal pleas, and so contributed to the 
splitting up of the same Curia Regis, on its judicial side, 
into two distinct tribunals. One little group of judges 
were set apart for hearing common pleas, and known as 
" the King's Judges of the Bench," or more briefly as " the 
Bench," and at a later date as the Court of Common Pleas. 
A second group, reserved for royal pleas, became the court 
Coram Rege, known subsequently as the Court of King's 
Bench. There were thus two benches : a common bench 
for common pleas and a royal bench for pleas of the Crown. ^ 

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

All three of the Courts of Common Law were thus off- 
shoots of the King's household. In theory, each of these 
ought to have confined itself to a special class of suits — 
royal pleas, common pleas, and exchequer pleas respec- 
tively; but, by a process known to law-courts in all ages, 
each encroached on the jurisdictions and fees appropriate 
to the others, until they became, for most purposes, three 
sister courts of co-ordinate authority. They were bound 

^Cf. supra, 90. 



CHAPTER SEVENTEEN 265 

to decide all suits according to the technical and inflexible 
rules of common law; and their jurisdiction required a 
supplement, which was supplied by the genesis of the 
Court of Chancery, dispensing, not common law, but 
equity, which professed to give (and, for a short time, 
actually did give) redress on the merits of each case as it 
arose, unrestrained by precedents and legal subtleties. 

IV. The Evolution of the Court of Common Pleas, The 
comment usually made upon the present chapter is that 
we have here the origin of the Court of Common Pleas. 
Now, legal institutions do not spring, full-fledged, into 
being : the Common Pleas, like its sister Courts of King's 
Bench and Exchequer, was the result of a long process of 
bifurcation from a common stem. 

Three stages may be emphasized, (i) The earliest trace 
of a definite bench, set apart for common pleas, is to be 
found in 1178. Henry II., returning from Normandy, 
found that there had been irregularities. To prevent their 
recurrence, he effected changes, the exact nature of which is 
matter of dispute. A contemporary writer ^ relates how 
Henry chose two clerks and three laymen from the officials 
of his own household, and gave to these five men authority 
to hear all complaints and to do right " and not to recede 
from his court." It was long thought that this marked the 
origin of the King's Bench, ^ but Mr. Pike ^ has conclu- 
sively proved that the bench thus established was the 
predecessor, not of the royal bench, but rather of the bench 
for common pleas. 

In 1 178, then, these five judges were set apart to hear 
ordinary suits ; but they were specially directed not to leave 
Henry's court; so that common pleas still " followed the 
King," even ordinary litigants in non-royal pleas having 
to pursue the King in quest of justice as he passed from 
place to place in quest of sport or business. 

It must not be supposed that the arrangement thus made 

^ Author of Ges^a Regis Henrici^ I. 207. 

2 Eigelow, Procedure, 89 ; Stubbs, Gesta Regis Henrici, I. Ixxi. 
^ House of Lo7'ds, 32. See also Poole, Exchequer, 180, and Adams, Origin, 
136 ff. 



/ 

266 MAGNA CARTA 

settled the practice for the whole period of thirty-seven 
years preceding the grant of Magna Carta. On the con- 
trary, it was merely one of many experiments tried by that 
restless reformer, Henry of Anjou ; and the separate bench 
then instituted may have been pulled down and set up again 
many times. It had probably, at best, a fitful and inter- 
mittent existence. There is evidence, however, that some 
such court did exist and did try common pleas in the reigns 
of Richard and John.^ On the other hand, this tribunal 
had in John's reign ceased to follow the King's movements 
habitually, and established itself at Westminster.^ It was 
in 1 2 15 considered an abuse for John to try a common plea 
elsewhere. 

(2) Magna Carta, in 12 15, gave authoritative sanction to 
this understanding, and thus marks a stage in the evolu- 
tion of the Court of Common Pleas. ^ Ordinary pleas were 
no longer to follow the King.^ Young Henry renewed 
this promise, and his minority favoured its strict observ- 
ance : a mere boy could not make progresses through the 
land dispensing justice as he went. Accordingly, all pleas 
continued for some twenty years to be heard at West- 
minster. The same circumstance may have temporarily 
arrested the process of cleavage between the two benches. 

(3) About 1234, Henry began to follow the precedent, 
set by his ancestors, of moving through his realm with 
judges in his train. While one group went with him, 
another remained at Westminster : some method of allocat- 
ing business had therefore to be found. Common pleas, 
in accordance with Magna Carta, remained stationary; 
while pleas of the Crown went on their travels. The split 
between the two benches now became absolute : from the 

^See Prof. Maitland, Sel. PL Crown, xiii.-xvi. ; see also in FiJ)e Roll, 7 John 
(cited Madox, I. 791) how money was paid that a plea pending before the 
lusticiarii de banco might be heard coram rege. This entry proves the existence 
in 1205 of the de banco as distinct from the coram rege. 

2 See Maitland, ibid. 

3 Cf. Poole, Exchequer, 183, who insists, however, that " it said nothing about 
a distinct court." 

* For attempts to evade this prohibition on the ground of the special character of 
particular pleas, see Bracton's Note-book, Nos. 12 13 and 1220. 



CHAPTER SEVENTEEN 267 

year 1234, two continuous series of distinct rolls can be 
traced, known respectively as rotuli placitorum coram rege 
and rotuli placitorum de banco. If any date in the history 
of one law court, which is in process of becoming two, can 
be reckoned as marking the point of separation, it should 
be that at which separate rolls appear. The court's memory 
lies in its records, which are thus closely associated with 
its identity. The common bench and the royal bench had 
become distinct.^ While Henry and his justices sat in 
judgment at Worcester, in 1238, a litigant protested against 
his suit being tried before them. It was a " common plea " 
and therefore, he argued, ought not to follow the King, in 
violation of Magna Carta. At Westminster only, not at 
Worcester or elsewhere, could his case be heard. ^ 

With royal pleas it was different : for long they con- 
tinued to follow the King's person without any protest 
being raised; and the Court of King's Bench did not 
finally settle at Westminster for nearly a century after the 
Court of Common Pleas had been established there. It is 
doubtful whether, even in 1258, a separate royal bench had 
been constituted.^ So late as 1300, Edward I. ordained, 
by the Articuli super cartas, that " the Justices of his 
Bench " (as well as his Chancellor) should follow him, so 
that he might have at all times near him " some sages of 
the law, which be able duly to order all such matters as 
shall come into the Court at all times when need shall 
require." * The matters here referred to were royal pleas : 
common pleas were tried at Westminster. 

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

Formal sessions of the Exchequer for auditing the 

^ See Maitland, Se/. PI, Crown, xviii. 

2 See Placitorum Abbreviatio (p. 105), 21 Henry III., cited Pike, House of 
Lords, p. 41 Cf. also Bracton's Note-book, pleas Nos. 1213 and 1220. 
2 Poole, Exchequer, 183. ^ 28 Edward I. c. 5. 

5 For stages in this genesis in 1234, 1236, and 13 17, see Poole, Exchequer, 183. 



268 MAGNA CARTA 

Sheriffs' accounts could only be held at Westminster, where 
the necessary apparatus was kept; but "the Exchequer," 
using that elastic word in a somewhat different sense, with 
much of its impedimenta of writs and tallies, would 
accompany the King on his progresses through the realm. 
In 1 2 10, for example, the Exchequer was at Northampton; 
in 1266, at St. Paul's; in 1277, at Shrewsbury; and in 
1299, at York.^ 

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

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

The implication of this clause of the statute of 1300 has 
sometimes been accepted literally .^ Magna Carta, how- 

iStubbs, Cons^. Hist., 11. 281 n. 

2 See 28 Edward I. c. 4. Many previous attempts had been made to keep 
common pleas out of the Exchequer, e.g. the writs of 56 Henry III. and 5 
Edward I. (cited Madox, II. 73-4), and the so-called statute of Rhuddlan (12 
Edward I.), see Statutes of Realm, I, 70. 

3 Thus Madox (II. 73-4) holds that c. 17 relates to the Exchequer ; so does Mr. 
Bigelow {^History of Procedurcy 130-1), who explains the grievance as a difficulty 
of getting speedy justice at the Exchequer, because the barons refused to sit after 
their fiscal business had been finished. This seems to be an error : the Barons of 
Exchequer made no difficulty about hearing pleas : quite the contrary. Plaintiffs 



CHAPTER SEVENTEEN 269 

ever, in set terms at least, contains no such prohibition. 
If the present chapter excludes common pleas from the 
jurisdiction of a travelling Exchequer equally as from that 
of a travelling King's bench, its words cannot be so 
stretched as to apply to normal sessions of the Exchequer 
held at Westminster. The Articuli super Cartas, how- 
ever, attempted what the Charter of 12 15 did not. After 
1300 it was clearly illegal to hold any pleas in the Exche- 
quer, unless such as affected the Crown and its ministers. 
Subsequent statutes confirmed this; but their plain inten- 
tion was always defeated by the ingenious use of legal 
fictions and the connivance of the barons of Exchequer, 
who welcomed the increase of fees that kept pace with the 
increase of business.^ 



CHAPTER EIGHTEEN. 

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

Inquests of noi'el disseisin, of mor^ d''a7icestor, and of darrein 
presentmeftt, shall not be held elsewhere than in their own 

were equally eager to purchase the writs which they were keen to sell : it was 
only defendants (debtors) who objected to the rapid and stringent procedure for 
enforcing payment adopted by this efficient court. The sheriffs and others waiting 
to render accounts before the Exchequer also protested against the congestion of 
business produced at the Exchequer by the eagerness of litigants who pressed 
there for justice. See Madox, II. 73. Plaintiffs had no reason to complain. 

^The fiction of "Crown debtors" is well known : plaintiffs obtamed a hearing 
in the exchequer for their common pleas by alleging that they wished to recover 
debts due to them " in order to enable them to answer the debts they owed to the 
king." See Madox, II. 192. 



270 MAGNA CARTA 

county-courts,^ and that in manner following, — We, or, if we 
should be out of the realm, our chief justiciar, will send two 
justiciars through every county four times a year, who shall, 
along with four knights of the county chosen by the county, 
hold the said assizes in the county court, on the day and in the 
place of meeting of that court. 

Provision is here made for holding before the King's 
travelling justices, frequently and in a convenient manner, 
three species of judicial inquests known as " petty assizes." 
These are of exceptional interest from their connection with 
the genesis of trial by jury and the Justices of Assize. 

I. The Curia Regis and the travelling Justices. From 
an early date, certainly from the accession of Henry I., 
it was the Crown's practice to supplement the labours of 
its officials at the royal exchequer by the occasional despatch 
of chosen individuals to inspect the provinces, collecting 
information and revenue, and, incidentally, hearing law- 
suits. Justice was thus dispensed in the King's name by 
his delegates in every shire of England, and a distinction 
arose between two types of royal courts : (i) the King's 
Council and its offshoots (including the three courts of 
common law and the court of chancery), which at first 
followed the King's person, but gradually, as already 
shown, 2 found a settled home at Westminster ; and (2) the 
courts of the itinerant justices which exercised such dele- 
gated authority as the Crown chose from time to time to 
entrust to them. The sphere of labour of these commis- 
sioners, as they passed from district to district, was the 
court of each shire, convened to meet them. They formed, 
in this way, a link between the old local popular courts and 
the system of royal justice. These travelling justices were 
of two types, Justices in Eyre and Justices of Assize respec- 
tively. 

(a) The Justices in Eyre were the earliest form of travel- 
ling judges, though their original duties were rather 
financial and administrative, than strictly judicial. Their 

^ " Coinitatus^^ indicates both the county where the lands lay and the court of 
that county. It was originally the sphere of influence of a comes or earl. Cf. 
supruy c. 2. 

2 See supra, c. 17. 



CHAPTER EIGHTEEN 271 

history extends from Henry I. to the end of the fourteenth 
century. 1 Their outstanding characteristics were the sweep- 
ing nature of their commissions (ad omnia placita)^ the 
harsh and drastic way in which they used their authority, 
and their intense unpopularity. Their advent was dreaded 
like a pestilence : each district visited was left impoverished 
by fines and penalties. On one occasion, the men of Corn- 
wall " from fear of their coming, fled to the woods." ^ An 
eyre was only resorted to at long intervals — seven years 
came to be the recognized term — and was a method of 
punishing delinquencies and miscarriages of justice and of 
collecting royal dues. It was not a visit from these hated 
Justices of Eyre that the barons in 12 15 desired to have four 
times a year. 

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

At first their duties were confined to enquiries of the kind 
mentioned in the text, known as " assizes " ; and the new 
species of travelling judges were hence called " Justices of 
Assize," a name that has clung to them for centuries, 
although their jurisdiction has been gradually increased 
till it now includes both civil and criminal pleas of every 
description, and although meanwhile the invention of new 
forms of process has superseded the old " assizes, " and at 

^ See W. S. Holdsworth {History of English Law, p. 115), who cites 1397 as 
the date of the final abolition of Eyres. 

2 This was in 1233 : see Pollock and Maitland, I. 181. 

^Blackstone, Commentaries, III. 58, assigns 1176 (the assize of Northampton), 
as the date of their institution. 



272 MAGNA CARTA 

last necessitated their total abolition. ^ They are still 
" justices of assize " in an age which knows nothing of the 
old assizes. 

II. Nature and Origin of the Petty Assizes. The institu- 
tion of the " assizes " — particular forms of the sworn inquest 
— occupied a prominent place among the expedients by 
which Henry II. hoped to substitute a more rational pro- 
cedure for the form of proof known as trial by combat.^ 

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

^See statute 3 and 4 William IV. c. 27, §§36-7. The last actual case of a 
Grand Assize occurred in Davies v. Lotmdes, in 1835 ^^^ ^^3^ (i Bing. N.C. 597, 
and 5 Bing. N.C. 161). 

2 The name "Assize" is sometimes a source of confusion, because of its various 
meanings, (i) Originally, it denoted a session or meeting of any sort. (2) It 
came to be reserved for sessions of the King's Council. (3) It was applied to any 
Ordinance enacted in such a session, e.g. Assize of Clarendon. (4) It was extended 
to every institution or procedure established by royal ordinance, but (5) more par- 
ticularly applied to the procedures known as Grand Assize and Petty Assizes. 
(6) Finally, it denotes at the present day a "session" of these Justices of Assize, 
thus combining something of its earliest meaning with something of its latest. In 
certain contexts, it has other meanings still, e.g. (7) an assessment or financial 
burden imposed at a *' session." 

^ See Neilson, Trial by Combat, 33-6, and authorities there cited. 

^ Cf, supra, p. 85, for the place of " combat " in legal procedure ; and 
p. 89, for Henry's policy in discouraging it. For the later history of trial by 
battle, see infra^ under c. 36. 



CHAPTER EIGHTEEN 273 

(i) The Grand Assise is not mentioned in Magna Carta; 
but some acquaintance with it is necessary to an apprecia- 
tion of the Petty Assizes. In the troubled reign of Stephen, 
lands changed hands frequently : there was hardly an 
important estate in England to which, at Henry's accession, 
two or more rival magnates did not lay claim. Constant 
litigations resulted, and the only legal method of deciding 
the issue was the duellum, 

Henry II. introduced a startling innovation. The actual 

holder of a property de facto, when challenged to combat by 

a rival claimant, was allowed an option : he might force 

the claimant (if the latter persisted) to refer the matter to 

the oath of twelve knights of the neighbourhood. Henry's 

ordinance provided for the appointment of these recognitors. 

Four leading knights of the county were first to be chosen, 

on whom was placed the duty of selecting twelve knights 

of the particular district where the lands lay, and these, with 

all due solemnity and in presence of the King's justiciars, 

declared upon oath to which suitor the lands belonged. 

/Their decision was final, and determined the question of 

( ownership for all time.^ The name Grand Assize was 

j applied alike to the procedure and to the knights who gave 

I the verdict. 

The procedure was slow; many formalities and possi- 
bilities of delay intervened, involving expensive journeys to 
the central Curia, first by the four appointing knights and 
afterwards by the twelve appointed. Months and even 
years might elapse before the final verdict was obtained. 
To lighten these hardships in comparatively unimportant 
cases, the Ca^ihfZa of .1194 authorized Justices of Eyre to 
hold Grand Assizes where the lands did not exceed ;^5 in 
annual value.^ 

Normally, however, this procedure was for the King's 
central Curia, neither for county court nor yet for baronial 
jurisdictions. For one thing, only magnates with wide 

1 See Glanvill, II. 7. 

'^Se/. Chart. ^ 259. The Assize of Northampton in 11 76 {ibid. 152) had given 
them jurisdiction over estates of half a knight's fee or less, but nothing was there 
said of the mode of proof. 

S 



274 MAGNA CARTA 

demesnes were likely to command the attendance of twelve 
knights (or even of tv^elve freeholders) from their own terri- 
tories. In combination with the rule given by Glanvill,^ 
that no plea concerning title to land could be commenced in 
any court without royal writ, and with the use made by the 
King of the writ praecipe,^ the Grand Assize, while super- 
seding trial by battle, became also an expedient for cur- 
tailing the jurisdiction of mesne lords. It is easy to under- 
stand why (unlike the petty assizes) it never became popular 
with the magnates. 

Valuable boon as was the option to substitute the verdict 
of twelve knights for the duellum in questions of title to 
land, the reform had one obvious weak point : the option 
conferred might sometimes be usurped by the wrong man, 
if a turbulent claimant took the law into his own hands, 
evicted the holder by the rude method of self-help, and 
thereafter claimed the protection of Henry's ordinance. In 
such a case the man of violence — the holder mala fide — 
would enjoy the option intended for his innocent victim. 

(2) The petty assises may, perhaps, have been the out- 
come of Henry's determination to prevent misuse of his new 
engine of justice.^ If a demandant alleged that the present 
possessor had usurped his place by violence, the King 
allowed the preliminary plea thus raised to be summarily 
decided by the oath of twelve local landowners, according 
to a procedure known as a petty assize. These petty assizesj 
of which three are here mentioned, related to questions of 
" possession," as opposed to " ownership." 

(a) Novel disseisin. The word "seisin," originally* 
synonymous with " possession " in general, was gradually 
restricted by medieval lawyers to the possession of real 
estate. " Disseisin " thus meant the interruption of seisin 

1 Glanvill, XII. 25. ^See infra, under c. 34. 

3 In the matter of actual date, the received opinion is that the " novel disseisin " 
procedure dates from 1166, and the Grand Assize came later. Round {A^/tenaeum 
for 28th Jany., 1899) suggests 1179. The evolution of the various writs was, 
however, a slow process, and steps in the chain are wanting. Under Geoffrey 
Plantagenet in Normandy various writs shade off into one another. See Haskins, 
Amer. Hist. Rev., VIII. 613 ff. In any view, the logical sequence seems to be 
that given in the text. 



CHAPTER EIGHTEEN 275 

(or possession) of land ; and was the technical term applied 
to violent acts of eviction. " Novel " implies that such ejec- 
tion was of recent date; for a summary remedy could be 
given only where there had not been undue delay in apply- 
ing for it.^ 

The first of the petty assizes, then, was a rapid and 
peaceable method of ascertaining, by reference to sworn local 
testimony, whether an alleged recent eviction had really 
taken place or not. Without any of the law's delays, with- 
out any expensive journeys to the King's Court or to West- 
minster, but quickly and in the district where the lands lay, 
twelve local gentlemen determined upon oath all allegations 
of this nature, li the recognitors of the petty assize 
answered " Yes," then the evicted man would have " seisin " 
immediately restored to him, and along with " seisin " went 
the valued option of determining what proof should decide 
the " ownership, " — whether it should be battle or the Grand 
Assize. An ordinance instituting this most famous of the 
three petty assizes was issued probably in 1 166, a year fertile 
in legal expedients. 

(b) Mort d'ancestor. The protection afforded to the 
victim of " disseisin " did not remove all possibility of justice 
miscarrying ; interested parties, other than the man ejected, 
were unprotected. An heir might be deprived of his tene- 
ment by his lord or by some rival claimant before he had an 
opportunity to take possession ; never having been " in 
seisin," he could not plead that he had been disseised. For 
the benefit of such an heir, a second petty assize, known as 
" mort d'ancestor," was invented.^ This is mentioned in 
article 4 of the Assize of Northampton, issued in 1 176, where 
procedure, essentially similar to, though not quite so speedy 
as that already described, was put at the heir's disposal. If 
successful, he took the lands temporarily, subject to all 
defects in his ancestor's title, leaving as before the question 

^In Normandy the corresponding period was "since the last harvest." See 
Maitland, Eqtnty, 323. 

2 At so late a date as 1267 it was found necessary to recognize by statute the 
right of the heir, who had come of age, to oust his guardian from his lands by an 
assize of mort d'ancestor. See Statute of Marlborough, c. 16. 



276 MAGNA CARTA 

of absolute ownership to be determined (if challenged) by 
the more cumbrous machinery of the Grand Assize. 

(c) Darrein presentment, Advowson (or the right of 
appointing to a vacant church) was then, as now, a species 
of real estate. Such patronage was highly prized, affording 
a living for a younger son or needy relative ; or it might be 
converted into cash. Disputes often arose as to possession 
and ownership of advowsons. Any one who claimed the 
absolute property, as against the holder, must offer battle, as 
in the case of any other form of real estate; and the Charter 
says nothing on this head.^ 

The less vital question of possession was more rapidly 
determined : if a benefice fell vacant, and two proprietors 
claimed the patronage, the Church could not remain without 
a shepherd until the question was decided.^ No ; the man 
in possession was allowed to make the appointment. But 
who was the man in possession ? Clearly he who had (or 
whose father had) presented a nominee to the living when 
the last vacancy occurred. Here, however, there might be 
a dispute as to facts. Twelve local men decided which 
claimant had made the last appointment (the " darrein pre- 
sentment ") ; and the claimant thus preferred filled up 
vacancies, until ousted by battle or the Grand Assize. 

All three forms of petty assize were merely new applica- 
tions of the royal procedure known in England, since the 
Norman Conquest, as inquisitio or recognition 

III. Aims of Magna Carta. If the petty assizes were 
objects of suspicion when first invented by Henry II., public 
opinion, half a century later, had vindicated their wisdom. 
The insurgent barons in 12 15 were far from demanding 
their abolition ; their new grievance was rather that sessions 

iSuch was the law as late as 1285. Westminster II. c. 5 explains that, when 
any one had wrongfully presented to a vacant church, the real patron could not 
recover his advowson except by writ of right ** gttod habet terminari per duellurn 
vel per magna}?t assisam.'''' 

2 A Lateran Council in 1179 authorized the diocesan bishop to appoint after 
three months' vacancy. Hence there was additional need of haste. 

3 The relations of the assizes to the ancient inquisitio and to the modern jury are 
discussed supra, pp. 134-8. 



CHAPTER EIGHTEEN 277 

of assize were not held often enough. In prescribing the 
way in which these assizes must be held, several points were 
emphasized : — (i) No inquiry of the kind was to be held 
elsewhere than in the county where the property was situ- 
ated. This was intended to meet the convenience of 
litigants, of those who served on assizes, and of all con- 
cerned.^ Within two years it was seen that this provision 
went too far. It was more convenient to hold certain 
inquiries before the Bench at Westminster, and the reissue 
of 1 2 17 made two modifications : (a) Assizes of darrein pre- 
sentment were thereafter to be taken before " the Justices of 
the Bench " ; (b) any novel disseisin or mort d'ancestor, 
revealing points of special difficulty, might also be reserved 
for the decision of the Bench. An element of uncertainty 
was thus introduced, of which the Crown took advantage. 
In a reported case of the year 1221, it was decided that an 
assize of mort d'ancestor should be held in its own county, 
not at Westminster.^ 

(2) John's Charter further insists on quarterly circuits 
of Justices of Assize; so that litigants in every county 
of England might have four opportunities each year of 
having their disputes thus settled. Such frequency 
involved expense and labour out of proportion to the good 
effected. The Charter of 12 17, accordingly, provided that 
circuits should be made only once a year. In 1285, how- 
ever, it was enacted that they might be held three times a 
year, but not oftener.^ 

(3) The Charter regulates the composition of the tribunal. 
Two justices appointed by the King (or by his chief jus- 
ticiar) are directed to hold the assizes, along with four 
knights of the shire. The bench of six thus combines 

^Thus two successive chapters of Magna Carta emphasize two divergent 
tendencies: c. 17 had demanded that "common pleas" should all be held at 
Westminster, while c. 18 demands that "assizes" should no^ be taken there. In 
both cases, the object was to consult the convenience of litigants. 

2 See Bracton's Note-book, No. 1478 ; cited Coke {^Second Institute, proem). If 
this assize had presented points of special difficulty it might have been held at 
Westminster without violating Magna Carta, as amended in 12 17. 

' 13 Edward I. c. 30. Stephen, History of Criminal Law, 105-7, gives further 
details. 



278 MAGNA CARTA 

representatives of the Curia with local landowners. No 
mention is made of the twelve recognitors : nor was this 
necessary, as their functions and status were well known in 
1 2 15, and their verdict formed the essential feature of the 
procedure.^ Chapter 19 provides that the classes, from 
whom recognitors had to be selected, should attend in 
sufficient numbers " for the efficient making of judgments." 

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

As the provisions of the reissue of 12 17 are more care- 
lessly expressed, and as in particular they contain no word 
implying " election," it is sometimes assumed that a change 
was intended; that a step tentatively taken towards repre- 
sentative local government in 12 15 was deliberately retraced 
two years later."* " Electus, " however, in medieval Latin 
was a vague word, differing widely from the ideas usually 
associated with a modern " election," and applied indis- 
criminately to all methods of appointment or selection, even 
to the proceedings of officers engaged by Edward I. to com- 
pel the impressment of soldiers. The twelve knights were 
to be " appointed," not " elected," in the county court; and 
it remains doubtful whether the sheriff, the magnates, or 
the body of the suitors, would have the chief share in the 
appointment. No evidence is forthcoming that any 
importance was attached in 121 7 to the word " electus," and 
its omission may have been due to inadvertence. 

^ Cf. Assize of Northampton, c. 4. 

2 Cf. infruy c. 48, where twelve sworn knights are to be chosen per probes 
homines ejusdem comitatus. Cf. also Forma Procedendi of 1194 i^Sel. Charters y 
255)- 

^See, (?.,^. '&\.\x\i\i%, preface to R. Hoveden, IV. xcviii.; Blackstone, Great Charter, 
XXX vi.; Medley, Eng. Const. Hist.^ 130. 

* Blackstone, ibid.^ points out these changes in the charter of 1217 : "the 
leaving indefinite the number of the knights and the justices of assize, the 
abolishing of the election of the former, and the reducing the times of taking 
assizes to once in every year." 



CHAPTER EIGHTEEN 279 

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

V. An Erroneous View. Hallam, commenting on this 
chapter, seems to have misapprehended the issues at stake. 
" This clause stood opposed on the one hand to the encroach- 
ments of the King's court, which might otherwise, by 
drawing pleas of land to itself, have defeated the suitor's 
right to a jury from the vicinage : and, on the other, to those 
of the feudal aristocracy, who hated any interference of the 
Crown to chastise their violations of law, or control their 
own jurisdiction." ^ Hallam thus interprets the chapter as 
denoting a triumph of the old local popular courts over both 
the King's courts and the courts of the feudal magnates. 
It denoted no such thing, but marked in reality a triumph 
(so far as it went) of the King's courts over the tribunals of 
the feudal magnates — courts baron, as they were afterwards 
called. The assizes, it is true, were to be taken in the 
county court, but they were to be taken there by the 
King's justices. The county courts by this time had fallen 
completely under the King's domination, and were to all 

^ On the whole subject, see an admirable article by G. J. Turner, EncycL Lazvs of 
Engl., III. 76 ff. 

2 See Middle Ages, II. 464. 



28o MAGNA CARTA 

intents and purposes royal courts. The present chapter is 
thus conclusive evidence of the triumph of the King's jus- 
tice, which was the best article in the market, and, in spite 
of all defects, deserved the popularity it had won. 

VI. Later History of the Justices of Assize. Whatever 
may have been the exact date when there first went on tour 
throughout England travelling judges entitled to the 
description of "Justices of Assize," such circuits, once 
instituted, continued to be held at more or less regular 
intervals from the beginning of the thirteenth century to the 
present day. Their jurisdiction steadily widened under 
successive kings, from Henry II. to Edward III. ; and they 
gradually superseded the older Justices of Eyre, taking over 
such functions as were not inconsistent with the change 
from the medieval to the modern system of justice.^ 

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

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

(2) Commission of Nisi Prius. Under Statute West- 
minster II. c. 30, the sheriff was directed to summon jurors 
to Westminster " unless at an earlier date " (nisi prius) the 
justices of assize should happen to arrive in the county in 
question. This was interpreted as creating a jurisdiction in 
the justices of assize to try all non-criminal pleas of the 
county — a jurisdiction afterwards known as "nisi prius."^ 
Thereafter, any such plea, whether begun in King's Bench 
or Common Pleas, might be determined locally in its appro- 

* Cf. Coke, Ftrsf Institute, 293b : " As the power of justices of assizes by many 
Acts of Parliament and other commissions increased, so these justices itinerant by 
little and little vanished away." 

2 On whole subject see Stubbs, Sel. Chart., 141 -3 ; Stephen, Hist. Crim. 
Law, I. 79-111 ; Holdsworth, I. 116-123. Contrast, however. Turner, op. cit., III. 
76flF. 

' For the exception where lands were under ;^5 in annual value, see supra,. 
P- 273- 



CHAPTER EIGHTEEN 281 

priate shire as well as at Westminster. According to the 
opinion generally received, a separate commission of " 7iisi 
prius " was issued to each group of justices of assize, but 
it has recently been urged that no separate commission was 
required, the one jurisdiction being merely incidental to the 
other. ^ 

(3) The commission of gaol delivery was, subsequently to 
1299, conferred on the justices of assize, in accordance with 
a statute of that year, 2 authorizing them to inspect all gaols 
and enquire into all charges against prisoners, and to set 
free those unjustly detained. Previously, similar powers had 
been spasmodically conferred on separate commissioners, 
who had too often abused their authority. 

(4) Commissions of Oyer and Terminer, issued spasmodi- 
cally from as early a date as 1285,^ to more or less respon- 
sible individuals, were from 1329 onwards conferred 
exclusively on the justices of assize, who thus obtained 
authority^ "to hear and determine" all criminal pleas 
pending in the counties they visited. This, combined with 
the commission of gaol delivery, amounted to a full juris- 
diction over crimes and criminals of every kind and degree ; 
just as the commission of assize (with or without an added 
commission of nisi prius) conferred full jurisdiction over 
civil pleas. ^ 

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

^G. J. Turner, ibid., p. 79. 

8 27 Edward I. c. 3. For early history of gaol delivery, see Pollock and Mait- 
land, II. 642. 

'13 Edward I. c. 39; see Stephen, Hist. Criminal Law, p. 106. 

* Edward III. c. 2. Ibid., no. 

5 It is unnecessary to do more than notice the exceptional "commissions of 
trailbaston," supposed to date from the Statute of Rageman (1276), conferring 
special powers for the suppression of powerful wrongdoers. These were soon 
superseded by the commissions of oyer and terminer. 

6 Mr. Turner {ibid., p. 79) suggests, however, that a separate commission was 
not needed, as "all justices of assize and gaol delivery were in the commission of 
the peace within the precincts of the court." In his view the justices received 
three distinct commissions, not five. 



282 MAGNA CARTA 

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



CHAPTER NINETEEN. 

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

And if any of the said assizes cannot be taken on the 
day of the county court, let there remain of the knights and 
freeholders, who were present at the county court on that day, as 
many as may be required for the efficient making of judgments, 
according as the business be more or less. 

This supplement to the preceding chapter prescribed the 
course to be followed when press of business prevented some 
of the assizes on the agenda from being disposed of on the 
court day. The shiremoot lasted for one day only, and to 
hold an adjourned session of all the suitors would inflict 
hardship on those whose presence was required elsewhere. 
The framers of the charter here sought to provide for the 
presence of a sufficient supply of recognitors, without 
insisting on the continued attendance of the whole body of 
suitors. They were doing their best to give effect to two 
requirements of the Articuli Baronum not readily recon- 
cilable, namely, that only those actually required as recog- 
nitors should be summoned (article 8) ; and that assizes 
should be " shortened " (article 13), implying the presence 
of sufficient recognitors for a rapid despatch of business. 

The terms of Magna Carta made it clear that assizes in 
the normal case should be held in the county court — a point 
upon which the Articles had been silent. This was a 
salutary provision, since a healthy publicity accompanied 



CHAPTER NINETEEN 283 

the proceedings of the shiremoot. If there was more busi- 
ness than could be got through in one day, a compromise 
must be made between the claims of litigants wishing their 
pleas hastened and the desire of other people to be dis- 
charged from further attendance. The justices were 
directed to complete their labours on the morrow, but were 
forbidden to retain anyone in attendance except the actual 
parties to suits and a sufficient number of jurors. Those 
whom Magna Carta thus compelled to wait a second day 
were exactly those whose presence the Articles had required 
upon the first day. The discrepancy between the two 
documents might be explained on the supposition that the 
device of synchronizing the visit of the justices with the 
date of holding the monthly shiremoot was only thought of 
after the Articles of the Barons had been sealed.^ 

The Charter of 1217 made a different provision for the 
same contingency. Unfinished assizes need no longer be 
taken in their own county on the day following the county 
court, nor, indeed, on any other day. The judges received 
full authority to bring them to a conclusion elsewhere on 
their circuit according as it might suit their convenience. 
This concession to the justices, taken in connection with the 
further provisions of 12 17, reserving all darrein present- 
ments, together with other assizes of any difficulty, for the 
decision of the bench, shows a comparative disregard of the 
convenience of jurors, who might, in the option of 
the justices, find themselves compelled either to follow the 
assizes from shire to shire, or else to undertake the irksome 
journey to Westminster, from which the Charter of 1215 
had relieved them.^ 

 Subsequent practice did not conform to this rule. One novel disseisin, or one 
mort d' ancestor, might be held by itself; and complaint was made in 1258 that 
the sheriffs proclaimed in the market places that all knights and freeholders must 
assemble for such an inquest, and when they came not, amerced them at will {pro 
voluniate sua). See Petition of Barons, c. 19 {^Sel. Charters, 385). 

2 Subsequent legislation vacillated between two policies, actuated at times by a 
desire to restrain the discretionary powers of the justices ; and at others by experi- 
ence of the hardships inflicted upon litigants by inflexible rules. The Statute of 
Westminster II. (13 Edward I. c. 30) confirmed the power of the justices to 
reserve cases of mort d'anceator for decision by the bench, and per contra allowed 



284 MAGNA CARTA 



CHAPTER TWENTY. 

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

A freeman shall not be amerced for a slight offence, except in 
accordance with the degree of the offence ; and for a grave 
offence he shall be amerced in accordance with the gravity of the 
offence, yet saving always his " contenement " ; and a merchant 
in the same way, saving his " merchandise " ; and a villein shall 
be amerced in the same way, saving his "wainage" — if they 
have fallen into our mercy : and none of the aforesaid amerce- 
ments shall be imposed except by the oath of honest men of the 
neighbourhood. 

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

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

(i) The hloodfeud. The earliest method of redressing 
wrongs was retaliation, or the bloodfeud. The injured 
man, or his heir, took the law into his own hands and 
exacted satisfaction by the aid of battle-axe or spear. 

assizes of darrein presentment to be taken "in their own counties." 6 Richard II. 
c. 5 curtailed the discretionary powers, directing that justices assigned to take 
assizes and deliver gaols should hold sessions in the county towns in which the 
shire courts were wont to be held. 1 1 Richard II. c. 1 1 once more relaxed this 
rule, alleging that it had resulted in the inconvenience of suitors. Authority was 
given to the chancellor, with the advice of the justices, to determine in what places 
assizes might be held. 



CHAPTER TWENTY 285 

(2) Fixed money 'payments. At some early, but uncer- 
tain, date it became customary to accept money in lieu of 
vengeance. The new practice, at first exceptional, was 
gradually extended. It was made compulsory to offer 
solatium in money, and, finally, to accept it when offered. 
The right of private revenge was lawful only after the 
aggrieved individual had demanded, and been refused, 
compensation at the recognized rate. Various codes formu- 
lated rules for determining the amounts thus payable. 
Each man had his money value or wer (from the simple 
freeman, reckoned at 200 shillings, up to prelates and lay 
nobles, estimated at much higher figures). Slighter 
wrongs could be compensated by smaller sums, known as 
bots : so much for a foot, or an eye, or a tooth. The King 
or other lord exacted further payments from the wrong-doer, 
under the name of wites, which are sometimes explained 
as the price charged by the magistrate for enforcing pay- 
ment of the wer or hot; sometimes as sums due to the 
community, on the ground that every evil deed inflicts a 
wrong on society in general, as well as upon its victim. 

(3) Amercements, A third system succeeded. This is 
found in working order soon after the Norman Conquest, 
but was still regarded as an innovation at the accession of 
Henry I. It is known as the system of amercements. 
None of our authorities contains an entirely satisfactory 
account of how the change took place; but the following 
suggestions may be hazarded. The sums demanded from 
a wrong-doer, who wished to buy himself back under pro- 
tection of the law, became increasingly burdensome. He 
had to satisfy claims of the victim's family, of the victim's 
lord, of the lord within whose territory the crime had been 
committed, of the church, mayhap, whose sanctuary had 
been invaded, of other lords who could show an interest 
of any sort, and finally of the King as lord paramount. It 
became practically impossible to buy back the peace once 
it had been broken. The Crown, however, stepped in, and 
offered protection on certain conditions : the culprit sur- 
rendered himself and all that he had to the King, placing 
himself " in misericordiam regis," and delivering a tangible 



286 MAGNA CARTA 

pledge (vadium) as evidence and security of the surrender.^ 
Strictly speaking, the man's life and limbs and all that he 
had were at the King's mercy .^ The Crown, however, 
found that it might defeat its own interests by excessive 
greed; and generally contented itself with moderate for- 
feits. Rules of procedure were formulated : the amounts 
taken were regulated partly by the wealth of the offender, 
and partly by the gravity of the offence. Further, it became 
a recognized rule that the amount should be assessed by 
what was .practically a jury of the culprit's neighbours ; and 
attempts were also made to fix a maximum.^ 

Thus a sort of tariff grew up, which the Crown usually 
respected in practice, without abandoning the right to 
demand more. Such payments were known as " amerce- 
ments." For petty offences, men were constantly placed 
" in mercy " : for failure to attend meetings of hundred or 
county ; for false or mistaken verdicts ; for infringements 
of forest rights. The Charter of Henry I. (chapter 8) had 
promised a remedy, drastic indeed but of a reactionary and 
impossible nature. His promise, to abolish altogether the 
system of amercements (then of recent introduction) and to 
revert to the earlier Anglo-Saxon system of bots and wites, 
was made only to be broken.^ 

^ See Charter of Henry I. c. 8, which, however, condemns the whole practice 
among the other innovations of the Conqueror and Rufus. 

^ See Dialogiis de Scaccario, II. xvi. 

^Cf. Pollock and Maitland, II. 51 1-4. There were, however, exceptions, e.g. 
Henry II. would not accept money payments for certain forest offences : mutila- 
tion was inflicted. See Assize of Woodstock, c. i, and contrast Forest Charter 
of 1217, c. 10. 

*Cf. Pollock and Maitland (II. 512), who describe Henry's promise as "a 
return to the old Anglo-Saxon system of pre-appointed wites." In order to avoid 
confusion, no mention has been made in the account given above of a classifica- 
tion of amercements into three degrees, which increases the obscurity surrounding 
their origin. ThQ Dialogus de Scaccario, II. xvi., tells how (i) for grave crimes, 
the culprit's life and limbs were at the King's mercy, as well as his property ; (2) for 
less important offences, his lands were forfeited, but his person was safe ; while (3) 
for minor faults, his personal effects only were at the King's disposal. In the last 
case, the offender was "z« misericordia regis de pecnnia sua." Thus to be "in 
mercy " did not always mean the same thing. Further, a villein or dependent 
freeman on a manor might fall into the *' mercy " of his lord, as well as of the King. 
The records of manorial courts are full of amercements for petty transgressions of 
customs of the manor. 



CHAPTER TWENTY 287 

II. Magna Carta and Amercements. No one could 
expect to pass through Hfe (perhaps hardly through a single 
year) without being subjected to amercements.^ Three 
chapters of Magna Carta accordingly are occupied with 
remedies. Chapter 20 seeks to protect the ordinary layman ; 
chapter 21, the barons; and chapter 22, the clergy — thus 
anticipating the conception of three estates of the realm ; — 
commons, nobles, clergy. The " third estate " is analysed 
for purposes of this clause, into three subdivisions — the free- 
man, the villein, and the merchant.^ 

(i) Amercement of freeholders. The great object of the 
reforms here promised was to eliminate the arbitrary 
element; the Crown must conform to its own customary 
rules. With this object, safeguards were devised for free- 
men, (a) For a slight offence, only a petty sum could be 
taken. This was nothing new : the records of John's reign 
show that, both before and after 12 15, very small amounts 
were often taken : threepence was a common sum. (h) For 
grave offences, a larger sum might be assessed, but not out 
of proportion to the offence, (c) In no case could the 
offender be pushed absolutely to the wall : his means of 
livelihood must be saved to him. Even if all other effects 
had to be sold off to pay the amount assessed, he was to 
retain his " contenement," a word to be afterwards dis- 
cussed, (d) Another clause provided machinery for giving 
effect to these rules. The amount must be fixed, not 
arbitrarily by the Crown, but by impartial assessors, " by 
the oath of honest men of the neighbourhood." In the 
reissue of 12 16 "honest men" became "honest and law- 
worthy (legalium) men," a purely verbal change.^ 

1 "Very likely there was no clause in Magna Carta more grateful to the mass of 
the people than that about amercements." Maitland, Gloucestei- Pleas, xxxiv. 

2 Even Coke {Second Insiihite, p. 27) has to confess that for purposes of this 
chapter he must abandon the attempt made elsewhere {ibid., p. 4 and p. 45) to 
bring villeins into the class of freemen. 

3 Adams, Origin, 257, thinks the addition made it clear tliat villeins could not 
amerce the liber homo ; but were not the four legaliores homines of each village 
described in Assize of Clarendon, villeins ? Harcourt, Stexvard, 221 n., insists that 
the clause does not secure *' trial by peers " in the feudal sense, for the jury of 
neighbours need not be *' peers of a tenure." 



288 MAGNA CARTA 

There were apparently two steps in the fixing of amerce- 
ments, (a) In the case of a commoner, the penalty under 
normal circumstances would be assessed provisionally by 
the King's justices on circuit, with the assistance of the 
sheriff. It was their duty to see that the amount was pro- 
portionate to the gravity of the offence.^ (h) Thereafter, 
the sheriff or his serjeants, in full county court, with the 
assistance of twelve neighbours, taxed the amercements, 
reducing them in accordance with their knowledge of the 
wrong-doer's ability to pay.^ 

The Pipe Rolls afford illustrations of the practice. In the 
fourteenth year of Henry 11.^ a certain priest (who, in this 
respect, stood on the same footing as a layman) had been 
placed "in misericordiam " of lOO marks by William fitz 
John, one of the King's justices, but that sum was after- 
wards reduced to 40 marks "per sacramentum vicmorum 
siiorum," It seems a safe inference that, on the priest 
pleading poverty, the question of his ability to pay was 
referred to local recognitors with the result stated. This 
priest was subsequently pardoned altogether " because of 
his poverty." ^ 

Magna Carta in this chapter, treating of the amercements 
of freeholders, merchants and villeins, makes no reference 
to the part played by the King's justices, but only to the 
functions of the jury of neighbours.^ "^11 this is in marked 
contrast with the provisions of chapte\2i, regulating the 
treatment to be accorded to earls and Yarons who made 
default. ^ 

(2) Amercement of merchants. The trader is in the same 
position as the liher homo, except that it is his " merchan- 
dise," not his " contenement," that is protected. The word 

^ Harcourt, En^I. Hist. Rev., XXII. 733-4. See also Dial, de Scac, p. 207 n. ; 
Maitland, Gloucester Pleas ^ xxxiv. Amercements apparently might also be pro- 
visionally fixed by the justices of the bench or the barons of exchequer, who might 
(where arrears were still unpaid) reduce their figures of previous years. 

'Harcourt, ?;5/^. ^ jyjadox, I. 527. 

* See, however, on whole subject, Harcourt, ibid. 

^ Reeves, History of English Law, I. 248 (Third Edition) says : ** Upon this 
chapter was afterwards framed the writ de moderata inisericordia, for giving remedy 
to a party who was excessively amerced." 



CHAPTER TWENTY 289 

is capable of two somewhat different shades of meaning. 
Narrowly interpreted, it may refer to his wares, the stock-in- 
trade without which the pursuit of his calling would be 
impossible. More broadly viewed, it might mean his busi- 
ness itself, his position as a merchant. The difference is of 
little practical import: in either view the Charter saves to 
him his means of earning a living.^ 

Some boroughs, indeed, had anticipated Magna Carta by 
obtaining in their own charters a definition of the maximum 
amercement exigible, or in some cases of the amercing 
body. Thus, John's Charter to Dunwich of 29th June, 
1200,2 provides that the burgesses shall only be amerced by 
six men from within the borough, and six men from with- 
out. The capital had special privileges : in his Charter to 
London, Henry I. promised that no citizen in misericordia 
pecuniae should pay a higher sum than loos. (the amount of 
his wer).^ This was confirmed in the Charter of Henry H., 
who declared " that none shall be adjudged for amercements 
of money, but according to the law of the city, which they 
had in the time of King Henry, my grandfather." * John's 
Charter to London of 17th June, 1 199, also referred to this ; ^ 
and the general confirmation of customs, contained in 
chapter 13 of Magna Carta, would further strengthen it. In 
all probability, the earlier grant covered trivial offences only 
(such as placed the offender in the King's hands de miseri- 
cordia pecuniae). The present chapter is wider in its scope, 
applying to grave offences also, and embracing merchants 
everywhere, not merely the burgesses of chartered towns. 

(3) Amercements of villeins. The early history of 
villeins as a class is enveloped in the mists that still surround 
the rise of the English manor. Notwithstanding the bril- 
liant efforts of Mr. Frederic Seebohm ^ to find the origin of 

1 Cf. Professor James Tait, Ejt^L Hist. Rev. XXXVII. , 720 ff. , who thinks that any 
attempt to exempt merchant " wares " from amercement was inconsistent with the 
right to distrain goods for debt, as illustrated by many cases given by Gross, Sel. 
Cases in Merchant Law (Selden Society), passim. 

2 Rotzili Ckartarum, 51. ^ See Select Charters, 108. 

* See Birch, Historical Charters of London^ p. 5. 

5 Ibid. , p. 1 1 . • See English Village Community, passim. 

T 



290 MAGNA CARTA 

villeinage in the status of the serfs who worked for Roman 
masters upon British farms long before the Teutonic immi- 
grations began, an older theory still holds the field, namely, 
that the abject villeins of Norman days were descendants 
of free-born " ceorls " of Anglo-Saxon stock. On this 
theory, most of England was once cultivated by Anglo- 
Saxon peasant proprietors grouped in little societies, each 
of which formed an isolated village. These villagers were 
slowly sinking from their originally free estate during 
several centuries prior to 1066 : but the process of their 
degradation was completed rapidly and roughly by the 
Norman conquerors. The once free peasantry were crushed 
down into the dependent villeins of the eleventh and twelfth 
centuries. 

Whichever theory may be the correct one, the position, 
economic, legal, and political, of villeins in the thirteenth 
century has been ascertained with certainty. Economically 
they were part of the equipment of the manor of their lord, 
whose fields they had to cultivate as a condition of being 
left in possession of acres, in a sense, their own. The 
services exacted, at first vague and undefined, were gradu- 
ally specified and limited. They varied from century to 
century, from district to district, and even from manor to 
manor ; but at best the life of the villein was, as a contem- 
porary writer has described it, burdensome and wretched 
(graviter et miserabiliter). After his obligations were dis- 
charged, little time was left him for the ploughing and 
reaping of his own holding. The normal villein possessed 
his virgate or half virgate (thirty or fifteen scattered acres) 
under a tenure known as villenagium, sharply distinguished 
from the freeholder's tenures. He was a dependent dweller 
on a manor which he dared not quit without his master's 
leave. 

It is true that he had rights of a proprietary nature in the 
acres he claimed as his own ; yet these were determined, 
not by the common law of England, but by " the custom of 
the manor," or virtually at the will of the lord. These 
rights, such as they were, could not be pled elsewhere than 
before the court customary of that manor over which the 



CHAPTER TWENTY 291 

lord's steward presided with powers wide and undefined. 
Politically his position was peculiar : allowed none of the 
privileges, he was yet expected to perform some of the 
duties, of the freeman. He attended the shire and hundred 
courts, and acted on juries, thus suffering still further 
encroachments on the scanty portion of time he might call 
his own, but preserving for a brighter day a vague tradi- 
tion of his earlier liberty. 

This chapter extends some measure of protection to 
villeins. Two questions, however, may be asked : — What 
measure ? and from what motive ? One point is clear : the 
villeins were protected from the abuse of only such amerce- 
ments as John himself might inflict, not from the amerce- 
ments of their manorial lords ; for the words used are " si 
inciderint in misericordiam nostravi." A villein in the ,' 
King's mercy shall enjoy the same consideration as the / 
freeholder or merchant in similar plight — his means of I 
livelihood being saved to him. The word now used is 
neither " contenement " nor "merchandise," but " wayna- 
gium," the meaning of which has been the subject of 
discussion. Coke defined it as " the contenement of a vil- 
lein ; or the furniture of his cart or wain," and Coke has 
been widely followed. The word, however, has apparently 
no connexion with wains or wagons, but is merely a 
Latinized form of the French word " gagnage," of which 
Godef roy gives five meanings : (a) gain ; (h) tillage ; (c) 
crop; (d) land under the plough; (e) grain. Professor 
Tait is inclined to read the word, in its present context, as 
equivalent either to " crops " or to " lands under cultiva- 
tion," and to translate the clause "saving his tillage." ^ 
What was the motive of these restrictions? It is usually 

1 See JSn^l Hist. Rev., XXXVII. 724, where Mr. Tait argues " for a broader and 
less concrete interpretation of the term . . . than has hitherto been put upon it." 
The villein was not to be ruined by impounding his .seed-corn or growing crops 
any more than by depriving him of his plough or plough team. See also A. F. 
Pollard, Engl. Hist. Rev., XXXVIII. 117, and cf. waynagitir. in c. 5, supra. The 
Mirror of Justices, p. 169, has a gloss on this passage, in which it is the villein's 
"gaigneur" that is saved to him, and this is apparently identified with the 
villenagium held by him. Mr. Tait's view has been adopted here ; but the word 
has sometimes a more restricted meaning, e.g. in Hoveden, iv. 48, where 100 acres 
of land are reckoned to the " waynage " of each plough. 




292 MAGNA CARTA 

supposed to have been clemency, the humane desire not to 
reduce a poor wretch to absolute beggary. It is possible, 
however, to imagine a different motive ; the villein was the 
property of his lord, and John must respect the vested 
interests of others. That the King might do what he 
pleased with his own property, his demesne villeins, seems 
clear from a passage usually neglected by commentators, 
namely, chapter i6 of the reissue of 1217. Four important 
words were there introduced — villanus alterius quam 
noster : the king was not to inflict crushing amercements on 
villeins " other than his own," thus leaving villeins on royal 
manors unreservedly in his power. ^ 

It must not be thought, however, that the position of 
the King's villeins was worse than that of villeins of an 
ordinary unroyal manor. On the contrary, it has been 
clearly shown 2 that the King's peasants enjoyed privileges 
denied to the peasants of other lords. Magna Carta pro- 
tected a lord's villeins from the King, not from the lord 
who owned them. That " great bulwark of the people's 
rights " left the bulk of the rural population of England at 
the mercy of their lords. The King must not take so much 
from any lord's villeins as to destroy their usefulness as 
manorial chattels; that was all.^ 

(4) The difference hetiveen fines and amercements. In the 
thirteenth century, these terms were sharply contrasted. 
" Amercement " was applied to sums imposed in punish- 

1 The view here taken of the motive for protecting villeins is strengthened by the 
use of the peculiar phrase, "vas^ttm ho/?nmtm" in chapter 4 {^.v.). Thomson, 
Magna Charta^ p. 202, seems completely to have misunderstood this 1 6th chapter 
of the reissue of 121 7, construing the four interpolated words in a sense the Latin 
will not bear, viz. : ** A villein, although he belonged to another.'''' 

2 Notably by Professor Vinogradoff in his Villeinage in England^ passim. 

^ The gulf which separated villein from freeman in this matter is shown by the 
Pipe Roll oi 16 Henry II. (cited Madox, I. 545) ; Herbertus Faber debet j marcam 
pro /also clamore qtiem fecit ut liber mm sit rusticus. A villein might be amerced 
for merely claiming to be free. It is difficult to reconcile any theory of the 
villein's freedom with the doctrine of Glanvill, V. c. 5, who denies to everyone 
who had been once a villein the right to "wage his law," even after emancipa- 
tion, where any third party's interests might thereby be prejudiced. R. Hoveden, 
iv. 46, speaking of the carucage of 1198, explains that for perjury a villein forfeited 
his best ox to his lord (not to the King). 



CHAPTER TWENTY 293 

ment of misdeeds; the law-breaker had no option of 
refusing, and no voice in fixing the amount. " Fine," on 
the contrary, was used for voluntary offerings made to the 
King to obtain some favour or to escape punishment. Here 
the initiative rested with the individual, who suggested the 
amount to be paid, and was, indeed, under no legal obliga- 
tion to make any offer at all. This distinction between 
fines and amercements, absolute in theory, could readily be 
obliterated in practice. The spirit of the restriction placed 
by this chapter and by the common law upon the King's 
prerogative of inflicting amercements could often be evaded. 
The Crown might imprison its victims for an indefinite 
period, and then graciously allow them to offer large pay- 
ments to escape death by fever or starvation in a noisome 
gaol : enormous fines might thus be taken, while royal 
officials were forbidden to inflict arbitrary amercements. 

With the gradual elimination of the voluntary element 
the word " fine " came to bear its modern meaning, while 
"amercement" dropped out of ordinary use.''^ 

(5) Contenement. This word, which occurs in Glanvill ^ 
and in Bracton,^ and also (in its French form) in the Statute 
of Westminster, I.,^ as well as in Magna Carta, has formed 
a text for many commentators from Coke's days to our own. 
By comparing the entries from exchequer rolls brought 
together by Madox,^ it appears that to save a man's "con- 
tenement " was to leave him sufficient for the sustenance of 
himself and those dependent on him. The word comes 
from the French " contenir," and has many shades of mean- 
ing, as capacity, maintenance, appearance, social condition 
or grade. A free man is not to be so crushed by an 
amercement that he cannot maintain himself in his former 
condition.^ Several entries on Exchequer Rolls of Henry 

^ C. 55, which supplements this chapter, cancels amercements unjustly inflicted 
in the past. 

2 IX. 8. 3 III. folio I i6b_ 4 3 Edward I. c. 6. s See II. 208-9. 

^ Prof. Tait's conclusions {op. cit.) have here been accepted with some hesitation, 
*' Contenement," he urges, " is not a compound from tenement." He admits, how- 
ever, following Godefroy, that in one instance the word does mean " tenement." 
He does not notice the striking analogy between the use of " contenement" in this 
chapter and that of "tenement" in c. 11 supra ; nor does he discuss the evidence 



294 MAGNA CARTA 

III. and Edward I., collected by Madox,i throw light on 
the way in which a " contenement " might be saved to the 
man amerced. Thus in 40 Henry III. the officials of the 
exchequer, after discussing an offender's failure to pay an 
amercement of 40 marks, ordered inquiry to be made, " how 
much he was able to pay the King per annum, saving 
his own sustenance and that of his wife and children," an 
excerpt which illustrates the more humane side of exchequer 
procedure. In 14 Edward I. again, the officials of that 
day, when ferreting out arrears, found that certain poor men 
of the village of Doddington had not paid their amerce- 
ments in full. An inquiry was set on foot, and the barons 
of exchequer were ordered to fix the dates at which the 
various debtors should discharge their debts (evidently an 
arrangement for payment by instalments) "salvo contene- 
mento suo." ^ 

These illustrations of the procedure of later reigns, 
agreeing closely with the rules laid down by the Great 
Charter, show how a man's contenement might be saved 
to him without loss to the Crown. Magna Carta apparently 
desired that time should be granted in which to pay up 
debts by degrees. Meanwhile, the amerced freeman was 
not forced to part with what was necessary to maintain him, 
with his wife and family, in his proper station in life. 

of the contemporary Histoire de Gtiillaume le Marichal^ where the word appears 
seven times with various meanings, e.g. capacity, manner of being, conduct, and 
equipment. M. Paul Meyer has collected these in his index. Mr. Tait goes too 
far when he asserts that to make freehold liable to amercement shows "a com- 
plete misconception of that form of punishment," p. 726. There were three 
degrees of amercement; and only for the mildest of the three was the forfeit limited 
to the culprit's personal estate {de peamia). See supra^ p. 286, n. Again, a man 
might be forced to sell his freehold to meet a heavy pecuniary mulct. Under 
Henry's Charter, in its final form, no ecclesiastic could be amerced except in 
accordance with his "tenement," which suggests an analogy with the saving of 
a freeman's ** contenement " in the present passage. 

1 See II. 208-9. * ^ See Madox, ibid. 



CHAPTER TWENTY-ONE 295 



CHAPTER TWENTY-ONE. 

CoMiTES et barones non amercientur nisi per pares suos, et 
non nisi secundum modum delicti. 

Earls and barons shall not be amerced except through 
their peers, and only in accordance with the degree of the 
offence. 

Amercement of earls and barons. It is noteworthy that 
the Articuli Baronum contain no provisions corresponding 
to this chapter, which forms in one sense a supplement to 
chapter 20, and in another to chapter 39 of John's Charter. 
How is the omission from the earlier document to be 
explained? Was it an oversight? Was the present 
clause added at Runnymede as an afterthought for the sake 
of symmetry? Had the barons no personal grievances 
under this head to redress ? Were they too disinterested to 
urge them ? Or was the grievance of so notable a kind and 
so hard to remedy that they hesitated till the last moment 
before committing themselves to any form of expression ? 
There is no contemporary evidence on which to base a con- 
clusive answer to these questions; but much may be said 
for answering the last of them in the affirmative. 

The equally natural question as to what the actual words 
of the Charter stood for in the minds of the barons is also 
hard to answer. When they mentioned amercement per 
pares suos, what exactly did they desire ? Bracton ^ has 
a famous gloss on this chapter, in which these words seem 
at first sight to be replaced by the phrase " et hoc per 
barones de scaccario vel coram ipso rege." Is this to be 
taken as an honest paraphrase? or does it represent a 
deliberate attempt by Crown lawyers to pervert the plain 
words of the Charter to authorize precisely what they had 
been originally intended to forbid? — to substitute the 
decision of a small knot of royal officials for that of the 
community of feudal barons ? While the problem is 

MIL folio 1 1 6b. 



296 MAGNA CARTA 

perhaps insoluble, some suggestions may be founded on 
a consideration of the actual practice before and after 
1215.1 

The plea rolls contain no distinct evidence of two stages 
in the amercement of barons, corresponding to those 
described in connexion with commoners. It is clear, how- 
ever, that the justices on circuit had no power to fix the 
iamercements imposed on them : in their case a blank was 
usually left to be afterwards filled in at the exchequer. 
" For this purpose, a separate roll or schedule was prepared 
containing the names of the amerced barons with the 
offences for which they were penalised, and this was sent 
to the exchequer with the other estreats." ^ 

This was the course followed at an eyre held at Hertford 
in 1 1 98-9: when a list of the amerced was prepared and 
definite sums were entered after each ordinary offender's 
name, blanks were left after the names of Gerard de 
Furnivall and Reginald de Argenton, each of whom was 
reserved for special treatment " as a baron," and as such " to 
be amerced at the Exchequer for a disseisin." The Pipe 
Roll of John's first year shows that this procedure was 
carried out.^ 

Magna Carta, then, had good precedents for insisting 
that barons ought not to be amerced by the justices of eyre 
in the course of their circuits ; but what exactly did it mean 
by demanding amercement " by their peers " ? In asking 
amercement per pares suos, were they iherely acquiescing 
in John's current practice? Did they desire to substitute 
the decision of a full commune concilium, as defined in 
chapter 14, for that of the King's professional justices? 
Did they merely ask for the presence of a few barons at 

^ A valuable volume of evidence has been collected by Harcourt, ^«^. //ist. Rev. 
XXII. 733 ff. ; though his conclusions are mainly negative. See also his Steward^ 
ff. 289. 

^Harcourt, ibid., 736. Pike, Hotise of Lords, 256-7, shows how barons were 
assessed sometimes — (a) before the barons of exchequer ; or {b) before the full 
King's Council ; or {c) at a later date, even before the justices of Common Pleas. 
They were never assessed, however, before the justices on circuit. 

^See Pike, House of Lords, 255. 



CHAPTER TWENTY-ONE 297 

the exchequer, when one of their own class was being 
amerced? Or, did they refer to a second stage of pro- 
cedure in which the amercements of barons should be taxed 
or reduced by other barons, just as (in the procedure 
referred to in chapter 20) amercements of commoners were 
taxed by a jury of neighbours ? 

If the last query could be answered in the affirmative, 
a clue would be afforded to the interpretation of Bracton's 
gloss: — " Comites vero vel barones non sunt amerciandi 
nisi per pares suos et secundum modum delicti et hoc per 
barones de scaccario vel coram ipso rege." ^ The words 
" et hoc " may here refer merely to the first stage in the pro- 
cess, the provisional fixing of the amount at the exchequer 
secundum modum delicti, while the function of the baron's 
" peers " was to " tax " this amount, with reference to the 
circumstances of the defaulting baron. If this interpreta- 
tion of Bracton be admissible and if he has accurately 
paraphrased the substance of this chapter, then the barons 
were asking no more for themselves than they had already 
asked for their humble dependents. They were unlikely 
to ask less. 

In the fourteenth century several cases are recorded in 
the course of which defaulters, in the hope of escaping with 
smaller payments, protested against being reckoned as 
barons. Thomas de Furnivall, for example, in the nine- 
teenth year of Edward II. complained that he had been 
amerced as a baron " to his great damage, and against the 
law and custom of the realm," whereas he really held 
nothing by barony. The King directed the Treasurer and 
Barons of Exchequer " that if it appeared to them that 
Thomas was not a baron, nor did hold his land by barony, 
then they should discharge him of the said imposed amerce- 
ment ; provided that Thomas should be amerced according 
to the tenor of the great Charter of Liberties, " ^ that is to 
say, as a simple freeholder according to the provisions of 
chapter 20. It is clear that Thomas de Furnivall was 
confident that a local jury would " tax " him at a lower 
figure than that fixed by the Exchequer barons. A few 

1 Bracton, f. Ii6b. "^adox, I. 535-8. 



298 MAGNA CARTA 

years earlier the Abbot of Croyland had made a similar 
claim, but without success.^ 

, At a later date, barons and earls were successful in 
securing by another expedient some measure of immunity 
from excessive exactions. They had established, prior to 
the first year of Henry VI., a recognized scale of amerce- 
ments with which the Crown was expected, in ordinary 
circumstances, to content itself.^ In the reign of Edward 
VI. a duke was normally amerced at ;i£"io, and an earl or 
a bishop at loos.^ 



CHAPTER TWENTY-TWO. 

NuLLUS clericus amercietur de laico tenemento suo, nisi 
secundum modum aliorum predictorum, et non secundum 
quantitatem beneficii sui ecclesiastici. 

A clerk shall not be amerced in respect of his lay holding 
except after the manner of the others aforesaid ; further, he shall 
not be amerced in accordance with the extent of his ecclesiastical 
benefice. 

Amercement of the clergy. The churchman was to 
receive the same favourable treatment as the layman in 
all respects, and to enjoy one additional privilege. In 
proportioning the amercement to his means, no account 
was to be taken of the value of his " church benefice." 
There is room, however, for doubt as to the precise nature 
of this privilege, which seems to depend for its point on 
an antithesis between " lay tenement " and " ecclesiastical 
benefice." 

In a well-known article of the Constitutions of .Clarendon 

1 See Madox, idid, and also Pike, Hoztse of Lords^ 257. Mr. Pike, p. 255, 
rightly says that what was originally a privilege had become a burden. 

2 See Pike, ibid. 

3 Madox, Baronia Anglica^ 106, seems to view these sums as fixing a minimum, 
not a maximum. ** If a baron was to be amerced for a small trespass, his amerce- 
-ment was wont to be lOOs. at the least ; he might be amerced at more, not at less. 
This, I think, was the meaning of the term amerciater ut ba7-o." He adds that a 
■commoner for a similar trespass would get off with los., 20s., or 40s. 



CHAPTER TWENTY-TWO 299 

(c. 9), a contrast is drawn between laicum feudum and 
tenementuTn pertinens ad eleemosinam. It is possible that 
Magna Carta means to observe the same distinction between 
"lay fee" and " frankalmoin," reckoning the former, but 
not the latter, in estimating a clerk's ability to pay amerce- 
ments. 

A more likely interpretation is that the contrast is drawn 
between lands owned by a clerk absolutely, and lands 
belonging to the church and held by the clerk in liferent. 
The plausibility of this conjecture is strengthened by 
alterations, apparently of a purely verbal nature, made in 
reissues of the Charter. The " de laico tenemento " of 
1215 was omitted altogether in 1216; and in 1217, the 
provision took this final form : " Nulla ecclesiastica persona 
amerciatur secundum quantitatem beneficii sui ecclesiastici, 
sed secundum tenementum ^ suum et secundum quantitatem 
delicti." The substitution of ecclesiastical " person " — a 
word fast acquiring even then a connotation like that of 
the " parson " of present-day colloquial speech — for " clerk " 
has no significance, but the main antithesis drawn would 
seem to be between the " benefice " or mere liferent and 
the " tenement " or fief held in perpetuity. In taxing a 
clerk's amercement, no account was to be taken of posses- 
sions of which he was not really owner. 



CHAPTER TWENTY-THREE. 

Nec villa nee homo distringatur facere pontes ad riparias, 
nisi qui ab antiquo et de jure facere debent. 

No village or individual ^ shall be compelled to make bridges 
at river banks, except those who from of old were legally bound 
to do so. 

^Stubbs, SeL Chart., 345, by a curious oversight i^ads ** contenementum," in 
the issue of 1217, for which there seems to be no authority. 

2 The word *^ villa,'" used at first as synonymous with "manor," came to be 
freely applied not only to all villages, but also to chartered towns. Even London 
was described as a villa in formal writs. " Homo," though often loosely used, was 
the word naturally applied to a feudal tenant. The version given by Coke {Second 
Institute, p. 30) reads " liber homo," which is also the reading of one MS. of the 
Inspexiimis of 1297 (25 Edward I.), See Statutes of the Realm, I. 114. 



300 MAGNA CARTA 

The object of this chapter is obvious; to compel the 
King to desist from his practice of illegally increasing the 
burden of the obligation to keep in repair all bridges over 
rivers. John might continue to exact what his ancestors 
had exacted; but nothing more. So much lies on the 
surface of the Charter, which explains, however, neither 
the origin of the obligation nor the reasons that made John 
keen to enforce it. 

I. Origin of Obligation to make Bridges. The Norman 
kings seem to have based their claim to compel their 
subjects to maintain bridges upon the ancient tripartite 
obligation^ (known as the trinoda necessitas). Three 
duties were required of all the men of England in the 
interests of the commonweal : attendance on the fyrd or 
local militia ; the making of roads, so necessary for military 
purposes; and the repairing of bridges and fortifications. 
Gradually, as feudal tendencies prevailed, the obligation 
to construct bridges ceased to be a personal burden upon 
all freemen, and became a territorial burden .^ The present 
chapter seems to be a particular application of the general 
principle enunciated in chapter i6. " Brigbot " required 
special treatment because of the prominence into which it 
had been forced by John. 

II. The King's interest in the Repair of Bridges. Part 
at least of John's motives for making an oppressive use of 
this prerogative must be sought in his rights of falconry. 
Whenever John proposed to ride a-fowling, with his hawk 
upon his wrist, he issued letters compelling the whole 
country-side to bestir themselves in the repair of bridges. 
Several such writs of Henry III. are extant. The exact 
words vary somewhat, but comparison leaves no room for 
doubt either as to the nature of the commands conveyed 
or the reasons for issuing them. Addressed to sheriffs of 
such counties as the King was likely to visit, these letters 

1 See I^oL C/aus., 19 Henry III., cited by Moore, History and Law of Fisheries, 
p. 8. 

2 The Hundred Rolls illustrate the manner of its incidence ; e.g. Omnes tenentes 
de Spaldinge debent ad reparacionem pontis illius, quilibet pro rata porcionis terrae 
suae contribuere, ita quod quaelibet acra erit par alterius. Rot. Hund., I. 468. 



CHAPTER TWENTY-THREE 301 

gave instructions for repair of bridges, and a prohibition 
against the taking of birds before the King had enjoyed 
his sport. Both points are well brought out in a Letter 
Close of Henry III., dated 26th December, 1234, which 
directed " all bridges on the rivers Avon, Test, and Itchen 
to be repaired as was wont in the time of King John, so 
that when the lord King may come to th6SS^*pafts, free 
transit shall lie open to him for ' revaying ' {ad riviandum) 
upon the said rivers." The sheriff is to issue a general 
prohibition against any one attempting to " revaye " along 
the river banks, previous to the coming of the King.^ The 
Latin verb, for which the Old English word " revaye " or 
" ryvaye " is an exact equivalent, has been the subject of 
misconception ; but conclusive evidence has recently been 
adduced to prove that it referred thi the medieval sport of 
fowling, that is to the taking of jl^ld birds in sport by 
means of hawks and falcons.^ N^ \ 

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

Two distinct hardships were thus imposed by the King's 
exercise of his rights of falconry, one negative and the 
other positive. Between the King's intimation and his 
arrival at the indicated rivers, the sport of other people was 
forbidden, while whole villages had to forsake their ploughs 
to reconstruct otherwise useless bridges. A wise king 
would be careful to use such rights so as to inflict a mini- 
mum of hardship. John knew no moderation, placing 
" in defence " not merely a few banks ct a time, but many 

1 See J?of. C/aus., 19 Henry III., cited in Moore, History and Law of Fisheries ^ 
p. 8. 

'See Moore, ibid.^ 8-16. Two links in the chain of evidence are worthy of 
emphasis: {a) Writs of 13th November and ist December, 1234, order repair of 
bridges for the transit of the King "along with his birds." {b) A writ of 28th 
October, 1283, contains a licence to 'the Earl of Hereford "during the present 
winter season to 'revaye' and take river-fowl throughout the rivers Lowe and 
Frome which are in defence." 

^I.e. c. 47 {q.v.). 



302 MAGNA CARTA 

rivers indiscriminately, including those which had never 
been so treated in his father's day, and demanding that 
all bridges everywhere should be repaired, with the object, 
not so much of indulging a genuine love of sport, as of 
inflicting heavy amercements on those who neglected 
prompt obedience to his commands. Great consternation 
was aroused when John at Bristol in 1209 prohibited the 
taking of birds throughout the entire realm of England.^ 

Both grievances were redressed by Magna Carta. The 
present chapter promised not to impose the burden on those 
from whom it was not legally due.^ Chapter 47, in which 
he agreed to withdraw his interdict from all rivers which 
had not been previously "in defence," and to disafforest 
all forests of his own creation, was entirely omitted in 
the Charter of 1216;^ but in 1217 it reappeared in a new 
position and expressed in different words. The provision 
in the original chapter 47 that related to forests was rele- 
gated to the Carta de Foresta, and the other part of that 
chapter, relating to falconry, was joined to a clause which 
redressed another grievance growing from the same root. 
Chapter 19 of Henry III.'s Charter, in its final form, 
repeats word for word the terms of the present chapter of 
John, while in chapter 20 Henry proceeds to declare " that 
no river shall in future be placed in defence except such 
as were in defence in the time of King Henry, our grand- 
father, throughout the same places and during the same 
periods as they were wont in his day." 

This express prohibition seems to have prevented the 
Crown from extending its prerogatives further in this 
direction. Yet Henry HI. had ample opportunities of 
harassing his subjects by an inconsiderate use of the rights 

^R. Wendover, II. 49 (R.S.)j ^^ Ibi capturam avium per totam Angliam inter- 
dixit y 

2 Article 1 1 of the Barons had demanded that no villa should be amerced for 
failure to make illegal repairs, thus illustrating at once John's policy, and the point 
of connection between this provision and the immediately preceding chapters which 
dealt with amercements. 

* It was, however, included among the subjects reserved for further consideration 
in "the respiting clause" (c. 42 of 1216) under the words ''* de ripariis et earum 
custodibus y Cf. supra, 143. 



CHAPTER TWENTY-THREE 303 

still left to him. In many cases dubiety existed as to what 
banks had actually been "preserved" by Henry II., and 
a vague general command left in cruel uncertainty the 
district to be visited. Henry III. made important conces- 
sions : after the year 1241, he specified the particular river 
along whose banks he intended to sport, and sometimes 
announced the exact date at which he expected to arrive. 
As no writs appear subsequent to 1247, it is possible that 
he was induced to abstain from the exercise of a right 
which inflicted hardships out of all proportion to the 
benefits conferred on the King.^ 

The Crown, however, had not renounced its prerogatives, 
and several writs still exist to show that Edward I. 
occasionally allowed his great nobles to share in the royal 
sport. Licences were granted in 1283 to the Earl of Here- 
ford and to Reginald fitz Peter, and in the following year 
to the Earl of Lincoln. On 6th October, 1373, Edward III. 
commanded the sheriff of Oxfordshire to declare that all 
bridges must be repaired and all fords marked out with 
stakes, for the crossing of the King " with his falcons " 
during the approaching winter.^ 

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

It has been confidently inferred that the framers of 
Magna Carta, when forbidding additional banks to be put 
" in defence, " equally as when demanding the removal of 
" weirs " from non-tidal waters,^ intended to preserve public 
rights of fishing against encroachment. This is an error : 
in the Middle Ages, fishing was a means of procuring food, 
not a popular form of sport : to depict John and his action- 

^ Moore, idzd.^ g. ^^oore, idz'ci., 12. 

3 The Mirror of Justices is cited as first suggesting this. See Moore, ibid., 12-16. 
Coke, Second Institute^ 30, misled by the Mif-ror, has misled others. 
"* Cf. infra, under c. 33. 



304 MAGNA CARTA 

loving courtiers as exponents of the gentle art of Isaac 
Walton is a ridiculous anachronism. 

It is true that the value of fish as an article of diet led 
in time to legislation directed primarily to their protec- 
tion ; but apparently no statute with such a motive was 
passed previous to 1285.^ It is further true that in the 
reign of Edward I. it became usual to describe rivers, over 
which exclusive rights of fishing had been established by 
riparian owners, as being in defenso ; ^ but rivers might be 
" preserved " for more purposes than one. 

From Edward's reign onwards, however, rights of fishing 
steadily became more valuable, while falconry was super- 
seded by other pastimes. Accordingly a new meaning was 
sought for provisions of Magna Carta, whose original 
motive had been forgotten. So early as the year 1283 the 
words of a petition to the King in Parliament show that 
"fishing" had been substituted for "hawking," in inter- 
preting the prohibition referred to in chapter 47 of John's 
Charter. The men of York complained that Earl Richard 
had interfered with their rights of fishing by placing in 
defenso the rivers Ouse and Yore " against the tenor of 
Magna Carta." ^ This error, which thus dates from 1283, 
has been accepted for upwards of five hundred years by all 
commentators on Magna Carta. The credit for dispelling 
it is due to Mr. Stuart A. Moore and Mr. H. S. Moore 
in their History and Law of Fisheries, published in 1903.^ 



CHAPTER TWENTY-FOUR. 

NuLLUS vicecomes, constabularius, coronatores, vel alii 
ballivi nostri, teneant placita corone nostre. 

No sheriff, constable, coroners, or others of our bailiffs, shall 
hold pleas of our Crown. 

^This was 13 Edward I., stat. i, c. 47, cited Moore, ibid., 173. 

Udid., p. 6. ^/did.y p. 16. 

*Lord Hale (Hargreaves, Law Traces, p. 7) partly anticipated their conclusions, 
and he seems to have been followed by decisions of the New York Courts. See 
Law Notes (New York) for August, 1 905. 



CHAPTER TWENTY-FOUR 305 

The main object of this provision is not open to doubt : 
men accused of crimes must be tried before the King's 
judges and not by local magistrates of whatsoever kind. 
Innocent men dreaded the jurisdiction of the local tyrants 
whose harshness had earned widespread hatred. The 
sheriffs and castellans deserved their bad repute ; the 
records of the age overflow with tales of their cruelties and 
oppressions. It ought not to be forgotten, however, that 
if this chapter contains a condemnation of the local admini- 
stration of justice, it testifies to the comparative purity of 
the justice dispensed by the King's own judges. So far 
there is no difficulty ; but differences of opinion exist as to 
certain points of detail. 

I. Pleas of the Crown. Pleas were royal or common 
according as the interests of the Crown were or were not 
involved. This classification has already been discussed 
in connection with chapter 17. The present chapter con- 
cerns itself only with " pleas of the Crown," a phrase which 
had, even in 12 15, considerably altered its original mean- 
ing. In the eleventh century it had denoted royal business, 
whether relating to judicial procedure or not, embracing 
all matters connected with the King's household or his 
estates, with the collection of his revenue, or the admini- 
stration of his justice, civil as well as criminal. Gradually, 
however, the usage of the word altered in two respects, 
contracting in one direction, while expanding in another. 
It ceased to be applied to financial business and even 
to non-criminal, judicial business, and was reserved for 
criminal trials held before the King's judges. This pro- 
cess of contraction had been nearly completed before the 
accession of John. 

A tendency in an opposite direction had been for some 
time in progress; the distinction drawn in early reigns 
between petty trespasses, which were left in the province 
of the sheriff, and grave offences, which alone were worthy 
of the King's attention, was being slowly obliterated. ^ 
The central courts extended their activity over all misdeeds, 
however trivial, until the whole realm of criminal law fell 

^Traces may be found in Glanvill, I. c. i. 
U 



3o6 MAGNA CARTA 

under the description of " pleas of the Crown." In John's 
reign this process of expansion was far from complete : 
the words then, indeed, embraced grave criminal offences 
tried in the King's great courts, but not the petty offences 
disposed of in the sheriff's tourn or elsewhere.^ 

North of the Tweed the same phrase has had a different 
history: in modern Scots law its connotation is still a 
narrow one; and this is a result of the slow growth of the 

• Scottish Crown in authority and jurisdiction, in notable 
contrast to the rapidity with which the English Crown 

, attained its zenith. The Kings of Scotland failed to crush 
their powerful vassals, and pleas of the Scottish Crown, 
exclusively reserved for the High Court of Justiciary, 
formed a meagre list — the four heinous crimes of murder, 
robbery, rape, and arson. The feudal courts of the Scot- 
tish nobles long preserved their wide jurisdiction over all 
other offences. When the heritable jurisdictions were at 
last abolished, in 1748, the old distinction, so deeply rooted 
in Scots law, still remained. The sheriff court had no 
cognizance, until late in the nineteenth century, over the 
four crimes specially reserved for the King's judges. ^ 
Thus in Scotland the historic phrase " pleas of the Crown " 
is, even at the present day, confined to murder, robbery, 
rape, and fire-raising, while to an English lawyer it 
embraces the entire realm of criminal law. 

II. Keeping and Trying Criminal Pleas. The machinery 
for bringing criminals to justice, as organized by Henry II., 
was somewhat elaborate. For our present purpose, it may 
be sufficient to emphasize two important stages in the 
procedure. An interval had always to elapse between the 
commission of grave crimes and the formal trial of the 
accused, for the coming of the itinerant justices took place 
only at intervals of about seven years. Meanwhile, pre- 

^ The triumph of royal justice over all rivals in the sphere of criminal law is thus 
symbolized by the extension of the phrase "pleas of the Crovi^n," which can be 
traced through a series of documents — e.^. [a) the laws of Cnut ; (d) Glanvill, I. 
cc. I, 2, and 3 ; {c) the Assizes of Clarendon and Northampton ; {d) the ordinances 
of II 94 ; and (e) Magna Carta. 

2 The Criminal Procedure {Scotland) Act, 1887 (50 and 51 Victoria, c. 35) gave 
him jurisdiction over three of them. 



CHAPTER TWENTY-FOUR 307 

liminary steps were taken to collect and record evidence, 
which might otherwise be lost. The magistrate respons- 
ible for these preliminary steps was said to " keep " the 
pleas (custodire placita) — that is, to prevent them from 
passing out of mind ^ while waiting for the justices who 
would formally " hold " or " try " or " determine " them 
(placitare or habere or tenere placita). 

Before the reign of John, the two functions had been 
entrusted to two distinct types of royal officials. The local 
magistrates of each district " kept " royal pleas, while only 
the King's justices could " hold " them. The process of 
differentiation was accelerated in consequence of the 
jealousy with which the Crown regarded the increasing 
independence of the sheriffs. The elaborate instructions 
issued in 1194 to the justices, whom Archbishop Hubert 
Walter was despatching through the counties, contain pro- 
visions intended to keep the pretensions of sheriffs within 
bounds: 2 they were expressly forbidden to act as justices 
within any counties in which they had acted as sheriffs 
since Richard's coronation.^ 

It is safe to infer that the " trying " of royal pleas was 
the province from which the sheriff was thus to be excluded. 
Even with regard to the " keeping " or preliminary stages 
of such pleas, the sheriff was by no means left in sole com- 
mand. The justices received instructions ^ to cause three 
knights and one clerk to be chosen in each county as 
" custodes placitorum coronae." It is possible that these 
new local officers, specially entrusted with the duty of 
" keeping " royal pleas, were intended rather to co-operate 
with, than to supersede, the sheriffs in this function ; but, 
in any view, the sheriffs had no longer a monopoly of 
authority in their bailiwicks. Magistrates, to be after- 
wards known as coroners, were thenceforward associated 
with them in the administration of the county.^ 

^Cf. tnfra, 315-6, for details. 

^See Forma procedendi, cc. 20 and 21 {Sel. Chart. ^ 260). 

^ Ibid., c. 21. '^Ibid., c. 20. 

5 The Forma procedendi is usually considered the earliest distinct reference to 
the office of coroner. Dr. Gross, however {History of Office of Coroner, 1892, and 
Select Cases from Coroners' Rolls, 1896) claims to have found traces of their 



3o8 MAGNA CARTA 

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

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

III. The Intention of Magna Carta. The barons were 
merely demanding that the Crown should observe the rules 
it had laid down for its own guidance : caprice must give 
way to law. Sheriffs must not usurp the functions of 
coroners; nor must sheriffs and coroners together usurp 
those of King's justiciars. John's opponents associated 
these two irregularities, and may have assumed that 
expressly to abolish one implied an intention to abolish 
both. Some such supposition would explain a peculiar 
discrepancy between the Articles and the Charter. While 
Article 14 demanded redress of one grievance. Magna 
Carta granted redress of a different one. The earlier docu- 
ment required that coroners should always be associated 
with the sheriff when he meddled with pleas of the Crown : 
the Charter forbade sheriffs and coroners to " try " pleas 

existence at a much earlier date. Maitland remained unconvinced {£n^. Hist. 
Rev.^ VIII. 758, and Pollock and Maitland, I. 519). 

^ This inference is drawn from Article 14 of the Barons. 

2 This inference is drawn from c. 24 of Magna Carta. 

^ See Maitland, Gloucester Pleas, xx. 



CHAPTER TWENTY-FOUR 309 

of this description. These two provisions are the comple- 
ments of each other. Magna Carta would seem to be here 
incomplete. 

The prohibition against sheriffs trying pleas of the Crown 
was repeated in all reissues of the Charter; and, although 
not strictly enforced in Henry's reign, soon became 
absolute. Thus sheriff Ralph Musard was one of seven 
justices of eyre who went on circuit in 1221, but he was 
prohibited from sharing the labours of his colleagues when 
they sat in Gloucestershire, where he was still sheriff.^ 
Under Edward I. no one could determine such pleas unless 
armed with a royal commission to that effect ; ^ and the com- 
mission would take the form either of gaol delivery, of trail- 
baston, or of oyer and terminer.^ 

IV. An Erroneous View, Hallam misunderstood the 
object of this provision. Commenting on Henry's Charter 
of 1225, he declares that the "criminal jurisdiction of the 
Sheriff is entirely taken away by Magna Carta, c. 17."* 
This is a mistake : both before and after the granting of 
the Charter, the sheriff exercised criminal jurisdiction, and 
that of two kinds. Along with the coroners, he conducted 
preliminary enquiries even into pleas of the Crown ; while 
in his tourn (which was specially authorized to be held 
twice a year by chapter 42 of the very Charter quoted by 
Hallam) he was made responsible for every stage in the 
trial of trivial offences. He heard indictments and then 
condemned and punished petty offenders in a summary 
manner.^ Several statutes of later reigns confirmed, even 
while regulating, the authority of the sheriff to take indict- 
ments at his tourns,^ until this jurisdiction was transferred, 

^Idid., p. X. 

2 See Coke, Second Institute, 30, and authorities there cited. 

3 For explanation of these terms, see supra, c. 18. 
*See Middle Ages, II. 482 n. 

^ Cf. Stephen, History of Criminal Law, I. 83. The mistake made by Hallam 
and others may have been in part the result of their neglecting the important 
modification undergone by the phrase "pleas of the Crown" between 12 15 and 
the present day. 

^E.g. 13 Edward I. c. 13, and i Edward III., stat. 2, c. 17. 



310 MAGNA CARTA 

by an act of the fifteenth century, to the justices of peace 
assembled in Quarter Sessions.^ 

All that Magna Carta did was to insist that no sheriff or 
local magistrate should encroach on the province reserved 
for the royal justices, namely the final " trying " of such 
grave crimes as had now come to be recognized as " pleas of 
the Crown." 2 The Charter did not even attempt to define 
what these were, leaving the boundary between great and 
small offences to be settled by use and wont. In all this, 
it was simply declaratory of existing practice, making no 
attempt to draw the line in a new place.^ 

Professor Hearnshaw^ propounds a theory that better 
fits the facts. He holds that this chapter defined and con- 
solidated the sheriff's authority, giving him a recognized 
sphere of action of his own : in 12 15 " leet jurisdiction 
came into existence. It was the jurisdiction left by the 
Great Charter to the sheriff in his tourn," while chapter 42 
of the reissue of 121 7, forbidding the tourn to be held 
oftener than twice a year, marked it off " from the ordinary 
civil jurisdiction of the three-weekly hundred court." 

V. Local Magistrates under John, The urgent need of 
restricting the authority of the sheriffs can be abun- 
dantly illustrated from contemporary records. Ineffectual 
attempts had, indeed, been made more than once to 
restrain their evil practices, as in August, 12 13, when 
directions were issued from the Council of St. Alban's 
commanding the sheriffs, foresters, and others, to abstain 

^ I Edward IV. c. 2. 

^Contrast Coke, Second Institute, 32, who seems to suggest that one effect of 
Magna Carta was to take from the sheriff a jurisdiction over thefts previously 
enjoyed by him. 

3 Dr. Stubbs, Const. Hist., I. 650, thinks that the Charter indicated a tendency 
towards judicial absolutism, only curbed by the growth of trial by jury. Yet the 
barons had no intention to enhance the royal power. The attitude of the insurgents 
in 121 5 suggests rather that the sheriffs had now become instruments of royal 
absolutism to a greater extent than the King's justices themselves. Edward I., 
indeed, deftly turned this chapter to his own advantage, arguing that it cancelled 
all private jurisdiction over criminal pleas previously claimed by boroughs or 
individuals. See Coke, Second Institute, 31, and cases there cited. 

* Leet Jurisdiction^ 340. 



CHAPTER TWENTY-FOUR 311 

from unjust dealing,^ and, again, some two months later, 
when John, at the instance of Nicholas, the papal legate, 
promised to restrain their violence and illegal exactions.^ 
Little or nothing, however, was effected ; and Magna Carta, 
in addition to condemning specified evils, contained two 
general provisions : chapter 45, which indicated what type 
of men should be appointed as Crown officials, and the 
present chapter, which forbade local magistrates to encroach 
on the province of the King's justices. These local magis- 
trates are comprehensively described under four different 
names. ^ 

(i) The Sheriff. No royal officer was more justly hated 
than the sheriff. The chapter under discussion affords 
strong evidence alike of his importance and of the jealousy 
with which his power was viewed. A brief sketch of the 
growth of the office is all that is here possible. Long before 
the Conquest, in each shire of England, the interests, 
financial and otherwise, of the kings of the house of 
Wessex had been entrusted to an agent of their own 
appointing, known as a scir-gerefa (or shire-reeve). These 
officers were continued by the Norman monarchs with 
increased powers, under the new name of vice comitesA 

In England, during the Anglo-Saxon period, the chief 
power over each group of shires had been shared among 
three officers — the bishop, the earl, and the sheriff. The 
bishop, by the natural differentiation of functions, soon 
confined his labours to spiritual affairs; while the policy 
of the Conqueror relegated the earl to a position of dignity 
severed from the possession of real power. Thus the 
sheriff was left without a rival within his shire. For a 
period of at least one hlindred years after the Norman 

^ See supra, p. 28. 2 ggg ^j^ Coventry, II. 214-5. 

' Abuses by sheriffs and other bailiffs continued to be rife after 121 5 as before it. 
Many later statutes afford graphic illustrations of the oppressive conduct they sought 
to control. In 1275 Edward found it necessary to provide "that the sheriffs from 
henceforth shall not lodge with any person, with more than five or six horses ; and 
that they shall not grieve religious men nor others, by often coming and lodging, 
neither at their houses nor at their manors." See Statute of Westminster, c. i, 
confirmed by 28 Edward I., stat. 3, c. 13. 

^Cf. supra, pp. 15-16. 



312 MAGNA CARTA 

Conquest, he wielded an excessive local authority as the 
sole tyrant of the county. He was not indeed irresponsible, 
but it was difficult for his victims to obtain the ear of 
the distant King, who alone was strong enough to punish 
him. 

To appreciate the full authority enjoyed by a sheriff who 
retained the King's confidence, we must remember the 
varied nature of his powers. He was not only local magis- 
trate, local tax-gatherer and local judge, but he commanded 
the troops of his bailiwick. A royal favourite might have 
several counties and one or more royal strongholds in his 
custody. The military power of Fawkes de Breaute, for 
example, must have been enormous, for it embraced the 
forces of Northampton, Cambridge, Huntingdon, Bedford, 
Buckingham, and Oxford.^ How powerful such men had 
become is shown by their pretensions after King John's 
death, when they claimed to hold their bailiwicks as matter 
of right throughout his son's minority. Preposterous as 
this demand seems, Henry's advisers gave effect to it, 
when they confirmed the appointment of all John's sheriffs 
(with the one exception of the notorious Stephen Harengod), 
thus weakening the central government at a time when it 
needed all its strength .^ 

The sheriff, however, had passed the zenith of his power 
before the reign of John. That King's father had been 
strong enough to show the disobedient sheriff his proper 
place, as he did notably in 1170. John, however, had 
his own reasons for giving a freer hand to the agents of 
his evil will, foreigners and desperadoes, whose services 
he rewarded in this way. This recrudescence of the 
sheriff's powers must be added to the causes contributing 
to the revolt of 12 15. 

It has already been explained how in 1194 the sheriff's 
powers were restricted. To the next year is usually traced 
the origin of the justices of the peace, who gradually took 
over the duties of the sheriff, until they practically super- 
seded him as the ruling power in the county. In Tudor 

iSee G. J. Turner, Trans. R. Hist. Soc, XVIII. 272. 

2 On this whole subject see the valuable remarks of Mr. Turner, op. cit., p. 272. 



CHAPTER TWENTY-FOUR 313 

days a new rival appeared in the Lord Lieutenant, then 
first appointed in each shire to represent the Crown in its 
military capacity. The fall of the sheriff was thus gradual, 
although finally complete. From presiding, as he did in 
his golden age, over all the business of the district — 
financial, admimstrative, military, and judicial — the sheriff 
has become, in England at the present day, a mere honorary 
figure-head of the county executive. A high sheriff is still 
chosen annually by King George for each county by 
pricking at random one name out of a list of three leading 
land-owners presented to him for that purpose. He is 
responsible, during his year of office, for the execution of all 
writs of the superior Courts within his county, including 
the execution of criminals, for returning the names of those 
elected to serve in the House of Commons, and for many 
other purposes; but his responsibility is chiefly theoretical. 
The real duties of his office are now performed by sub- 
ordinates. What really remains to him is an empty and 
expensive honour, usually shunned rather than courted. 
In Scotland and America, the sheriff also exists at the 
present day, but his position and functions have in these 
countries developed in very different directions. In Scot- 
land, in opposition to what has happened in England and 
America, the sheriff has remained emplxatically a judicial 
officer, the judge of the local court of his shire, known as 
" the Sheriff Court." He has thus retained intact his 
judicial functions, to which such administrative duties as 
still remain to him are subordinate. In the United States 
of America, on the contrary, the sheriff is a purely executive 
official, possessing perhaps more real power, but notably 
less honour and social distinction, than fall to the lot of the 
English high sheriff. The duties of his office are some- 
times performed by him in person ; he may even set out 
at the head of the posse comitatus in pursuit of criminals. 
Three completely different offices have thus sprung from 
the same constitutional root, and all three are still known 
by one name. 

(2) The constable. Portions of certain counties were 
exempted from the sheriff's bailiwick. Districts afforested 



314 MAGNA CARTA 

were administered by wardens, assisted by verderers, who 
excluded the sheriff and coroners; while royal fortresses, 
together with the land immediately surrounding them, 
were under command of officers known indifferently as 
castellans or constables.^ The offices of warden of a par- 
ticular forest and warden of an adjacent royal castle were 
frequently conferred on the same individual. Indeed, 
chapter i6 of the Forest Charter of Henry III. seems to 
use the term " castellans " as the recognized name of forest 
wardens, whom it forbids to hold " pleas of the forest." 

The name constable has at different periods been applied 
to officers of extremely different types. The King's High 
Constable, a descendant of the horse-thegn of the Anglo- 
Saxon kings, was originally the member of the royal 
household responsible for the King's stables. At a later 
date, he shared with the Earl Marshal the duties of Com- 
mander-in-chief. The name of constable came to be 
applied also to commanders of small bodies of troops, 
whether in castles or elsewhere. At a later date the word 
was used in connection with duties of watch and ward : 
each hundred had its high constable and each village its 
petty constable in the fourteenth and fifteenth centuries. ^ 
The name is at the present day, confined to members of 
the police force. 

The word, as used in Magna Carta, denoted the captain 
of a royal castle.^ Such an office was one of trust; and 
wide powers were conferred upon its holder. He acted 
as gaoler of prisoners confided to the safe-keeping of his 
dungeons. He had authority, under certain ill-defined 
restrictions, to take whatever he thought necessary for 
provisioning the garrison — a privilege the exercise of which 
frequently led to abuses, guarded against by chapters 28 

1 These localities were independent of the ordinary executive authorities of the 
county ; partial exemption from the sherififs control was enjoyed also by (a) 
chartered boroughs and {d) holders of franchises. The same man might, of course, 
be both sheriff and castellan. 

2 See H. B. Simpson, £n^. Hist. Rev.^ X. 625, for authorities. 

3 Evidence collected by Coke, Second Institute^ 31, proves the identity. See 
also Round, Ancient Charters^ No. 55, where Richard I. in 1 159 speaks of 
* ' constabularia castelli Lincolniae. " 



CHAPTER TWENTY-FOUR 315 

and 29 of Magna Carta. He had also, to a limited extent, 
judicial authority. Not only did he try pleas for small 
debts to which Jews were parties, but he enjoyed a juris- 
diction over all petty offences committed within the pre- 
cincts of the castle, analogous to that of the sheriff within 
the rest of the county. The power of trying and punishing 
misdemeanours was not taken away by the Great Charter, 
and was confirmed by implication in 1300 by a statute 
which directed that the constable of Dover Castle should 
not hold, within the castle gate, " foreign " pleas of the 
county which did not affect "the guard of the castle."^ 
The Articles of 1309 complained that constables of the 
King's castles took cognizance of common pleas.^ In the 
reign of Henry IV. complaint was made that constables 
of castles were appointed justices of the peace, and im- 
prisoned in one capacity the victims they had unjustly 
condemned in another. This practice was put down by 
statute in 1403.^ 

It would appear that at an earlier period the constable 
of the hundred sometimes acted as deputy-sheriff. Chapter 
12 of the Assize of Northampton provided that when the 
sheriff was absent the nearest castellanus might take his 
place in dealing with a thief who had been arrested. His 
interference outside his own precincts must, however, have 
been regarded with great jealousy, and the coroners, after 
their appointment in 1194, would naturally act as sub- 
stitutes during the sheriff's absence. 

(3) The coroners. The coroners of each county, after 
their institution in i,^, seem to have shared with the 
sheriff most of the powers of which the latter had previously 
enjoyed a monopoly. They were appointed by the whole 
body of freeholders assembled in the county court,* and 
the nature of their duties is explained by the oath of office 

^ See Articuli stiper cartas, 28 Edward I. c. 7. 
2Stubbs, CoTist. Hist., II. 339. 

^ See 5 Henry IV. c. 10. Coke, Second Institute, 30, relates, as an indication 
of the authority and pretensions of these constables, that they had seals of their 
own "with their portraiture on horseback." 

* See Stubbs, Hoveden, Pref. to Vol. IV. xcix. 



3i6 MAGNA CARTA 

sworn in the same words for many centuries, " ad custodi- 
enda ea quae pertinent ad coro7iam." Their duty was to 
guard royal interests generally ; and their " keeping " of 
royal pleas was merely one aspect of this wider function. 
Besides " attaching " those suspected of crimes — that is, 
receiving formal accusations and taking such sureties as 
might be necessary, it was their duty to make preliminary 
investigations; to examine the size and nature of the 
victim's wounds in a charge of mayhem; ^ and to keep a 
watchful eye on royal windfalls, including deodands, 
wrecks, and treasure-trove. They had also to appraise 
the value of chattels forfeited to the King. When felons 
took refuge in sanctuary, it was the coroner who arranged 
for their leaving the country on forfeiting all that they had. 
They kept a record of those who had been outlawed, and 
received " appeals " of criminal charges.^ 

Magna Carta forbade the coroner to determine pleas of 
the Crown; but, even after 12 15, he sometimes did justice 
upon felons caught red-handed. An act of Edward I.^ 
accurately defined his duties, empowering him to attach 
pleas of the Crown and to present criminals for trial, but 
forbidding him to proceed further alone. 

The coroner's functions, originally so wide and varied, 
have been gradually narrowed down, until at the present 
day the duty usually associated with his office is the hold- 
ing of inquests on dead bodies where there are suspicious 
circumstances.^ He is still responsible for treasure-trove 
and he is also competent to act as the sheriff's substitute 
in case of illness or absence during the year of office. 

(4) The bailiffs. The mention by name of three classes 
of local officers is supplemented by the addition of an 
indefinite word sufficiently wide to cover all grades of 

^ See Bracton, f. 122b. 

2 In 1 197 Richard's Assize of Measures appointed six custodientes in each county 
and town. These were coroners over one class of offences, the use of false weights 
and measures. Cf. infra^ under c. 35. 

^ Statute of Westminster, I. c. 10. 

^Cf. Coke, Second Institute, 31, "In case when any man come to violent or 
untimely death, super visum corporis^ 



CHAPTER TWENTY-FOUR 317 

Crown officials. The term " bailiff " may be applied to 
every individual to whom authority of any sort has been 
delegated by another. It would include the men who 
actually served writs, or distrained the goods of debtors; 
and also generally all local officials of every description, 
holding authority directly or indirectly from the Crown. 
The district over which his office extended was called his 
"bailiwick," a term often applied to the county considered 
as the sphere of the sheriff's labours.^ 



CHAPTER TWENTY-FIVE. 

Omnes comitatus, hundrede, wapentakii, et trethingii, sint 
ad antiquas firmas absque ullo incremento, exceptis domi- 
nicis maneriis nostris. 

All counties, hundreds, wapentakes, and trithings (except our 
demesne manors) shall remain at the old rents, and without any 
additional payment. 

This provision, directed against the sheriffs, shows a 
determination to get to the root of the disease, instead of 
merely attacking the symptoms. The rents at which the 
counties (or parts of them) were farmed out to the sheriffs 
must no longer be arbitrarily raised, but were to remain at 
the old figures which had become stereotyped from long 
usage. To understand how such increases would injuri- 
ously affect the inhabitants of the county, some explanation 
is necessary. Centuries before the Norman Conquest, 
England had been already mapped out into shires on lines 
substantially the same as those which still exist. Each 
county had been subdivided into smaller districts known as 
" hundreds " in the south, and as " wapentakes " in the 
Danish districts of the north ; while intermediate divisions 
existed, exceptionally, in some of the large counties such as 
York and Lincoln, each of which had three " trithings " or 
ridings. 

^Mr. G. J. Turner, speaking of the minority of Henry III., thinks "the term 
'bailiff' as applied to a county at this period meant 'sheriff.'" Transactions^ 
P- 274. 



3i8 MAGNA CARTA 

In commenting upon chapter 24, it has been explained 
how the Anglo-Saxon Kings entrusted their interests in 
each shire to an officer called a sheriff, and how a similar 
officer under the Norman Kings became the chief magis- 
trate in the county. His financial duties, however, long 
remained the most important. Even before 1066, the sheriff 
had ceased to be a mere intermediary, who lifted the King's 
rents and paid over, pound by pound, the yearly varying 
sums he might receive. He had become a firmarius, buy- 
ing for a yearly rent the right to appropriate to his own uses 
the revenues of the county. The Crown got the exact sum 
stipulated for, known as the firma comitatus ; while the 
balance, if any, remained with the sheriff. In plain words, 
the sheriff speculated in the returns : it was his business, 
by fair means or foul, to make sure of a handsome 
surplus. 

Authorities differ as to the exact list of items purchased 
by the firma comitatus ; but the two chief sources of revenue 
were the profits of justice in the local courts, and the rents 
of royal manors. 

William I. sharply raised the farms, and his successors 
endeavoured, whenever possible, to increase them further. 
Now, it might seem at first sight that these additional 
burdens concerned exclusively the Crown and the sheriff, 
but such was by no means the case. The sheriff took care 
to pass on the burden to the shoulders of those subject to his 
authority. His rule tended always to be oppressive, but 
his unjust exactions would be doubled when the amount of 
the firma had recently been raised. 

Under the vigilant rule of Henry II., some measure of 
relief was obtained by the shires from the misdeeds of their 
local tyrants, since that far-seeing King knew that his own 
best interests called for curtailment of the sheriffs' preten- 
sions. He punished their excesses and deprived them of 
office. John, on the contrary, appointed men of a less 
reputable type, and gave them rope. In return, he wrung 
more money from them. Not content with exacting the 
annual firma and the additional sum known as " increment," 
which had now become stereotyped as a fixed and recog- 



CHAPTER TWENTY-FIVE 319 

nized payment,^ John from 1207 onwards exacted a third 
payment under name of proficuum, and allowed his sheriffs 
to inflict new severities to recoup themselves for their addi- 
tional outlay. 

Magna Carta made no attempt to abolish the practice of 
farming out the shires, but forbade alike the increase of the 
farm and the exaction of proficuum. The barons here made 
an innovation which was unfair to John. If it benefited the 
men of the counties in dealing with their sheriffs, it gave 
the sheriffs an undeserved advantage over the exchequer. 
The total value of the various assets included in the. firma 
comitatus had greatly increased in the past, and would 
probably continue to increase in the future. Therefore, it 
was unfair to bind the Crown by a hard-and-fast rule which 
would practically make a present of this future " unearned 
increment " to the sheriff. To stereotype the firma was to 
rob the Crown, which required increased revenues to meet 
the increased cost of its expanding duties.^ 

Although this chapter was omitted from all reissues, the 
Crown, during Henry III.'s minority, forbore to exact the 
proficuum, reverting to the practice prior to the seventh 
year of his father's reign. After he had been declared of 
age, however, increased sums were again taken. ^ There 
was, indeed, no valid reason why the unearned increment 
should go to the sheriff rather than to the King : it was 
sufficient to provide against the fixing of the amounts too 
high. The Articuli super cartas, accordingly, while con- 
ceding to the counties the right of electing their own 
sheriffs, declared that neither the bailiwicks and hundreds 

^ These extra payments appear under various names, e.g. augmentum or incre- 
mentum in Domesday Book (cf. Ballard, Domesday Inquest, 75). The Pipe Roll 
for 1 166 (p. 11) records 200 marks paid zs, gersuma for Norfolk and Suffolk. See 
evidence collected by Adams, Origin, 237 n. Huge sums were sometimes paid : 
Archbishop Geoffrey in 1 194 purchased the shrievalty of York for ;!^2000. Ramsay, 
Angevin England, 345. 

2 Cf. Sir James Ramsay, Angevin Empire, 476, who describes this provision as 
*'an impossible requirement." Dr. Stubbs' paraphrase is not entirely happy: 
"the ferms of the counties and other jurisdictions are not to be increased." See 
Const. Hist., I. 575. 

3 See Turner, Trans. R.H.S., XVIII. 289. 



320 MAGNA CARTA 

of the King, nor those of great lords ought to be put to farm 
at too high rates. The evil, however, continued under a 
new form ; sheriffs, while only paying a moderate farm 
themselves, sublet parts of their province at much higher 
rates, thus appropriating the increment denied to the 
exchequer, while the bailiffs who had paid the increase 
could not " levy the said ferm without doing extortion and 
duress to the people."^ Three successive acts prohibited 
this practice, declaring that hundreds and wapentakes must 
either be kept in the sheriff's own hands, or sublet, if at all, 
at the old fixed farms only.^ 

One exception to the scope of its own provisions was 
deliberately made by Magna Carta — an exception of an 
important and notable nature; the demesne manors of the 
Crown were left exposed to arbitrary increases of their 
annual rents. Now, the chief items contained in the firma 
were, as already explained, the rents of these manors and 
the profits of the local courts. It would thus appear, in the 
light of this exception, that the aim of Magna Carta was to 
prevent an increase under the second head — to prevent, that 
is, the local courts being made the instruments of extortion ; 
and this apparently was the precise object of chapter 42 of 
the reissue of 12 17. 

That chapter struck at one of the most fertile of the 
sheriffs' expedients for swelling the profits of their office. 
It was their practice to summon the various district courts 
with unnecessary frequency and at inconvenient times and 
places, fining every suitor who failed to attend. The 
Charter of 121 7 reaffirmed the ancient usage ^ : no county 
court should meet in future oftener than once a month ; no 
sheriff or bailiff should make his " tourn " through th( 
hundreds oftener than twice a year, to wit at Easter an( 
Michaelmas, and that only at the accustomed place; vie\ 
of frankpledge should only be held once a year at Michael- 
mas, and the sheriff must not seek " occasions," but content 

^ These are the words of the statute of 1 330, cited below. 
-4 Edward III. c. 15 ; 14 Edward III. c. 9 ; 4 Henry IV. c. 5. 
^For this usage see Cnut, II. 18 (Liebermann, Gesetze^ I. 321) ; Leges Henricii 
7 and 8 [ibid., 553) ; Writ of Plenry I. {ibid.^ 524). 



CHAPTER TWENTY-FIVE T\ 321T 

I 
himself with what he was wont to get for taking his " vie^^*?^ 
under Henry II.; all liberties must be respected; and any 
district in which the courts meet by custom less frequently 
than is normal, shall have the benefit of such exceptional 
local usage. ^ 

In a curious case^ that came before the justices in 1226, 
this clause was pleaded as a defence against a charge of 
impeding the sheriff of Lincoln in the performance of his 
duties of holding "counties," " thethings " (or courts of 
ridings), and wapentakes : the sheriff, against custom, was 
holding county courts oftener than once in five weeks and 
for more than one day at a time, and was holding a wapen- 
take in Ancaster oftener than twice a year, and not according 
to the charter of liberty. 

In another plea (1231)^ juries testify that since the 
making of " carta de Runemede " (here evidently used for 
the Charter of 12 17) the sheriff has come into the hundred 
twice instead of once a year (as the old custom was) to take 
view of frankpledge and to make attachments of pleas of the 
Crown. 

After 12 1 7, in absence of express royal gf*ant or prescrip- 
tion to the contrary, the rule formulated in Henry's second 
reissue of Magna Carta fixed the times of holding the 
" tourn " of the sheriff, and this was extended also to the 
" leet " jurisdiction, which in the liberties took the place of 
the tourn."* 



CHAPTER TWENTY-SIX. 

Si aliquis tenens de nobis laicum feodum moriatur, et 
vicecomes vel ballivus noster ostendat litteras nostras 
patentes de summonicione nostra de debito quod defunctus 
nobis debuit, liceat vicecomiti vel ballivo nostro attachiare, 
et inbreviare catalla defuncti, inventa in laico feodo, ad 



1 See supra, p. 150. ^Bracton's Note-book^ Plea 1730. 

3 Ibid., No. 513. 

*See Hearnshaw, Leet Jurisdiction^ 79, 80, who reminds us, however (p. 147), 
that "even Magna Carta can be prescribed against." 

X 



322 MAGNA CARTA 

valenciam illius debiti, per visum legalium hominum, ita 
tamen quod nichil inde amoveatur, donee persolvatur nobis 
debitum quod clarum fuerit ; et residuum relinquatur execu- 
toribus ad faciendum testamentum defuncti; et, si nichil 
nobis debeatur ab ipso, omnia catalla cedant defuncto, salvis 
uxori ipsius et pueris racionabilibus partibus suis. 

If any one holding of us a lay fief shall die, and our sheriff or 
bailiff shall exhibit our letters patent of summons for a debt 
which the deceased owed to us, it shall be lawful for our sheriff 
or bailiff to attach and catalogue chattels of the deceased, found 
upon the lay fief, to the value of that debt, at the sight of law- 
worthy men, provided always that nothing whatever be thence 
removed until the debt which is evident ^ shall be fully paid to 
us ; and the residue shall be left to the executors to fulfil the 
will of the deceased ; and if there be nothing due from him to 
us, all the chattels shall go to the deceased, saving to his wife 
and children their reasonable shares. 

The primary object of this chapter was to regulate the 
procedure to be followed in attaching the personal estates of 
Crown tenants who were also Crown debtors. Incidentally,, 
it throws light on the right of bequeathing property. 

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

Magna Carta sought to make such irregularities impos- 
sible, by defining the procedure to be followed. The sheriff 
and his bailiffs were forbidden to touch a single chattel of a 
deceased Crown tenant, unless they came armed with legal 
warrant in the form of royal letters patent vouching the 
existence and the amount of the Crown debt. The officers 
of the law were allowed to attach only as many chattels as 
might reasonably be expected to satisfy the debt due to the 
exchequer; and everything so taken must be carefully 

^ Cf. the use of the phrase " a Hquid debt" in Scots law. 



CHAPTER TWENTY-SIX 323 

inventoried. All this was to be done " at the sight of lawful 
men," respectable, if humble, neighbours specially sum- 
moned for that purpose, whose function it was to form a 
check on the actions of the sheriff's officers, to prevent them 
from appropriating anything not included in the inventory, 
to assist in valuing each article and to see that no more 
chattels were distrained than necessary. A saving clause 
protected the interests of the Crown by forbidding the 
removal from the tenant's fief of any chattels, even those 
not so attached, until the full ascertained amount had been 
paid to the exchequer. Not till then could a division take 
place among the deceased man's relatives or legatees. 

These provisions should be read in connection with 
chapter 9,^ which provided that diligence for Crown debts 
must proceed against personal estate before the debtor's 
freehold was distrained, and laid down other equitable rules 
applicable alike to a deceased Crown debtor and to a living 
one. 

II. The Right to Bequeath. The main interest of this 
chapter, for the historian of law and institutions, lies in a 
different direction ; in the light thrown on the right of 
making Wills in 12 15. The early law of England had 
difficulty in deciding how far it ought to acknowledge the 
claims made by owners of property, both real and personal, 
to direct its destination after death. Various influences 
were at work, prior to the Norman Conquest, to make the 
development of this branch of law illogical and capricious.^ 
Of the law of bequests in the twelfth century it is possible 
to speak with greater certainty ; definite principles had by 
that time received recognition. All testamentary rights 
over land or other real estate were then denied, not, as has 
sometimes been maintained, in the interests of the feudal 
lord, but rather of the expectant heir.^ Many reasons con- 
tributed to this result. For one thing, it had become neces- 
sary to prevent churchmen from using their spiritual 

1 Cf. what is there said of the sheriff's oppressions. 

'The subject is discussed by Pollock and Maitland, II. 312-353. See also 
Holdsworth, III. 418 ff. ; Makower, ConsL Hist. Church, 427 ff. 
3 See Pollock and INTaitland, II. 324. 



324 MAGNA CARTA 

influence to wring bequests from dying men to the impover- 
ishment of the heir. Churchmen, in compensation as it 
were for the obstacles thus opposed to their thirst for the 
land of the dying, ultimately, but not before the reign of 
Henry III., made good their claim to regulate all Wills 
dealing with personal estate; that is money, goods, and 
chattels. 

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

This victory of the ecclesiastical courts was probably won 
shortly after 12 15. John's Charter makes no admission of 
any right of the church in the " proving " of Wills ; but it 
does admit (in chapter 27) the church's right to " superin- 
tend" the division of the goods of intestates, an insidious 
privilege, which was used as a lever during the minority 
of Henry (a ward of Holy See), and thus helped to give 
the courts Christian an excuse for deciding also as to 
the validity of Wills. It was apparently in John's reign 
that the practice of appointing executors to carry out the 
Will of the deceased became general. Henry II. in his 
own case had entrusted this duty to individuals whom he 
named, but did not describe as " executors," a word, how- 
ever, used in its technical sense in King John's Will.^ 

John claimed that his subjects could not make valid 
Wills without his consent, which had, as usual, to be paid 
for. Such, at least, is the inference to be drawn from the 
existence of writs granting licences to make a Will, or 
confirming one that had been made.^ The King's interfer- 

iMaitland, CoIL Papers, II. 139. 2Holdsworth, III. 418 ff. 

^On 30th August, 1 199 {New Ry77ier, I. 78) John confirmed the testament of 
Archbishop Hubert Walter; and on 22nd July, 1202 {ibid., I. 86), he granted 
permission to his mother, the dowager Queen Eleanor, to make a will. 



CHAPTER TWENTY-SIX 325 

ence in this province seems to have been regarded as an 
illegal encroachment. 

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

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

The conception of a " dead's part " or portion to be dis- 
pensed in charity and good works for the benefit of the 
deceased's soul was, of course, in great measure due to the 
influence of the church, which was not unwilling to stimu- 
late the belief that one of the best methods of affecting this 
was to leave money to itself. Under Henry III. the bishop 
of the diocese made good his claim to " prove " Wills (that 

^ Cf. " tota pars sua de pecunia sua " in Burton Abbey Surveys (cited by Round, 
Engl. Hist. Rev. , XX. 279) ; Bateson, Borough Customs, II. xcvi. 
2 Glanvill, VII. 7. 



326 MAGNA CARTA 

is to determine whether they were vaHd), and to control the 
" executors " in carrying out the dead man's instructions. 
Where the testator's intentions were ambiguous, the 
" ordinary " would see to it that deceased's soul did not 
suffer through giving too little to the church. 

The reissue of 1216 makes no alteration on this chapter 
of John's Charter : that of 1217 omits " et pueris," probably 
through a clerical blunder, for the words were restored in 
1225. As mere disuse does not abrogate an English statute, 
this provision remained in force until repealed by implica- 
tion by the Wills Act of 1837.^ 

Long subsequent to the thirteenth century, the laws of 
England and Scotland as to the rights of succession of wife 
and children seem to have remained identical : but, while 
Scots law is unaltered to the present day, English law has, 
by slow steps, the details of which are obscure, entirely 
changed. The rule that acknowledged the children's right 
to one third of the personal estate was gradually relaxed, 
while the testator became sole judge what provision he 
ought to make for his sons, until at last a purely nominal 
sum of money was all that was required. The law of Eng- 
land, at the present day, does not compel a father to leave 
son or daughter even the proverbial shilling. The phrase 
" to cut off a son with a shilling," which still lives in popular 
usage, may perpetuate the tradition of an intermediate stage 
of English law, where some provision, however inadequate, 
had to be made, if the Will was to be allowed to stand. 



CHAPTER TWENTY-SEVEN. 

Si aliquis liber homo intestatus decesserit, catalla sua per 
manus propinquorum parentum et amicorum suorum, per 
visum ecclesie distribuantur, salvis unicuique debitis que 
defunctus ei debebat. 

If any freeman shall die intestate, his chattels shall be dis- 
tributed by the hands of his nearest kinsfolk and friends, under 
supervision of the church, saving to every one the debts which 
the deceased owed to him. 

^ See Z«w/ J/o^as/Wif, Oct. 1905. 



CHAPTER TWENTY-SEVEN 327 

Here the Great Charter proceeds to remedy an evil con- 
nected with intestate succession, a natural sequel to the 
subject of testate succession.^ In light of subsequent 
history, the words most worthy of notice are probably " per 
visum ecclesiae," which appear also in the Articles of the 
Barons. There were good reasons for welcoming the inter- 
vention of the bishop's court as a substitute for the scramble 
that often took place for an intestate's chattels; but the 
jurisdiction thus gained by the church was quickly put to 
other uses. 

The placing of this powerful weapon in the hands of the 
church was only incidental to the main purpose of this 
chapter. This was (while safeguarding the interests of 
creditors) to secure to the deceased's kinsmen and friends 
the right to make an equitable division of his chattels. By 
implication the Charter says " hands off " to John, and 
indeed to any lord superior, whether the King or another. 

In the Middle Ages all classes of men, good and bad 
alike, exhibited an extreme horror of dying intestate. ^ 
Several causes contributed towards this frame of mind. 
Churchmen, from motives not unmixed, inculcated the 
belief that a dying man's duty was to leave part at least of 
his personal estate for religious and charitable objectsJ 
The bishop or priest, who had power to withhold extreme 
unction from dying men, was in a strong position to force 
advice upon penitents who believed the church to hold the 
keys of heaven. Motives of a more worldly nature lent 
their weight. If a man died intestate, his lord seized his 
chattels. Henry I. in his Coronation Charter renounced 
this right over Crown tenants under certain circumstances : 
if a baron or " man," cut off by war or infirmity (the words 
have a grudging, hesitating sound), had given no instruc- 
tions for disposal of his pecunia, his wife and children and 
legitimi homines (or vassals) should divide it " for his soul " 
as seemed best to them.^ Stephen, in his second or Oxford 

iQn whole subject, see Holdsworth, III. 418 ff. ; Makower, Const. Hist, 
Church, 427 ff. 

- Pollock and Maitland, II. 354. 

^ See Appendix and supra, p. 98. Also Bateson, Borough Customs, II. cxlii-iii. 
Cf. Cnut, II. cc. 70 and 78 (Liebermann, Gesetse, 357-365). 



328 MAGNA CARTA 

Charter,^ gave up all such claims, as regards the property of 
prelates and clerks, who were confirmed in their rights of 
making Wills. 

These promises were not kept : in Glanvill's day, the 
King, like other feudal lords, appropriated the goods of 
intestates.2 Henry II. continued to treat intestacy, especi- 
ally in the case of clerks, as an excuse for forfeiture.^ 
Magna Carta contained a clear pronouncement against this 
practice. The kinsmen and friends of the deceased, with- 
out royal interference, were to divide the chattels under 
supervision of the church : the King's courts were excluded. 
No scheme of intestate succession was set forth ; but where 
wife and children survived, the tripartite division was 
clearly implied. In the distribution of the dead's part, the 
prelates allowed themselves liberal discretion : something 
went to the poor, but more might be spent on masses, while 
a portion would be retained as remuneration for trouble 
expended. 

In 1 216 this provision of John's Charter was withdrawn. 
Why? Had a suspicion crossed the mind of William 
Marshal that it conferred a dangerously elastic privilege 
upon the church ? Did the legate Gualo refuse to trust the 
English prelates with authority? Did the young King's 

1 See Appendix and supra, p. 102. ^ Glanvill, VII. 16. 

^See Pollock and Maitland, II. 354. Examples are readily found: "When 
Archbishop Roger of York died in 1 182, Henry II. enjoyed a windfall of ;i^l 1,000, 
to say nothing of the spoons and saltcellars " (Pollock and Maitland, I. 504). 
Royal prerogatives in the twelfth century were elastic. Henry II. used them 
freely, but on the whole fairly. His sons stretched every doubtful claim to its 
utmost limits. The Crown was the legal heir of all Jews (cf. c. 10) and apparently 
of all Christian usurers as well, at least of such as died unrepentant (see Pollock 
and Maitland, II. 486), and the making of a will was a necessary condition of a 
usurer's repentance. (See Dialogus de Scaccario, 224-5 i^"^-) The King, further, 
took the goods of all who died a felon's death (cf. c. 32) and of men who committed 
suicide (itself a felony). Madox (I. 346) cites an entry from the Pipe Rolls of 
1 1 72, recording 60 marks due to the exchequer as the value of the chattels of an 
intestate ; and, two years later, mention is made de pecunia Gilleberti qui obiit 
intestatus. There is nothing to show whether such men were, or were not, 
usurers. The Pope was another competitor for the personal estates of intestate 
clerks. In 1246 he issued an edict making this demand: even Henry III. 
(dependent and ally of Rome as he was) protested, and the edict was withdrawn. 
See Pollock and Maitland, II. 357. 



CHAPTER TWENTY-SEVEN 329 

advisers, conscious of their urgent need of money, deter- 
mine to reserve what rights the indefinite earHer law allowed 
them of taking part in the scramble for the coin and chattels 
of intestates ? 

Irregularities continued during Henry's reign : Bracton ^ 
thought it necessary to urge that intestacy was not a crime. 
But his direct condemnation of the feudal lords' practice 
of seizing chattels is confined to cases of sudden death. 
Yet it was neither King nor barons, but the church that 
triumphed : the rule, enunciated in John's Charter, though 
omitted from all reissues, settled the practice of later years. ^ 
The personal estate of intestates was administered " under 
supervision of the church," and the same supervision was 
ultimately extended over the Wills and estates of men who 
had died testate. 



CHAPTER TWENTY-EIGHT. 

NuLLUS constabularius, vel alius ballivus noster, capiat 
blada vel alia catalla alicujus, nisi statim inde reddat 
denarios, aut respectum inde habere possit de voluntate 
venditoris. 

No constable or other bailiff of ours shall take corn or other 
provisions from any one without immediately tendering money 
therefor, unless he can have postponement thereof by permission 
of the seller. 

This chapter is the first of several that redressed abuses 
springing from the exercise of the royal right of purvey- 
ance. 

I. Purveyance in General. The Norman and Angevin 
Kings of England were compelled by their administrative 
duties and induced by the pleasures of the chase to move 
constantly from district to district. The difficulties must 
have been great of finding sufficient food for the retinues 
surrounding the King in peace or war. It was to the 

^F. 60. 2 Pollock and Maitland, II. 355. Cf. snp-a, p. 324. 



330 MAGNA CARTA 

interests of the community that the work of government 
should not be brought to a stand-still for want of supplies. 
No opposition was made when the King arrogated to him- 
self the privilege of appropriating, under fair conditions, 
the necessaries his household might require. Such a right, 
not unlike that enjoyed in modern times by the commander 
of an army encamped in an enemy's country, was allowed 
to the Kings of England in their own land in time of peace. 
This was known as purveyance.^ Unfortunately, the condi- 
tions under which supplies might be requisitioned were left 
vague : the privilege was subject to abuse. In theory it was 
a right of pre-emption ; the provisions seized were to be 
paid for at the market rate : but practice tended to differ 
lamentably from theory. In the absence of a neutral 
arbitrator to fix the value of the goods, the unfortunate seller 
was thankful to accept any pittance offered by royal officials, 
who might subsequently, indeed, charge a higher rate 
against the Crown. Payment was often indefinitely delayed 
or made not in coin but in exchequer tallies, " a vexatious 
anticipation of taxation," since these could only be used in 
payment of Crown dues. 

Magna Carta did not abolish purveyance, and placed no 
restrictions upon its use for the legitimate purpose of 
supplying the King's household. Some slight attempt to 
control its exercise was made sixty years later in the Statute 
of Westminster I.; but without producing much effect.- 
The Articles of 1309 ^ complained that the King's purveyors 
took great quantities of corn, malt, and meat without pay- 
ing even by exchequer tallies. The grievances connected 
with purveyance continued, throughout four centuries, as a 
fertile source of vexation to the people and of friction 
between parliament and the King. An attempt, made by 
the House of Commons to induce James I. to surrender this 
prerogative for a money grant, ended in failure, with the 
abandonment of the abortive treaty known as " the Great 
Contract." In the general re-settlement of the revenue, 
liowever, at the Restoration, purveyance and pre-emption, 

^ See Blackstone, Commentaries^ I. 287, for an often-quoted definition. 
«3 Edward I. c. 32. ^Stubbs, Const, Hist., II. 339. 



CHAPTER TWENTY-EIGHT 33i 

which had fallen into disuse during the Commonwealth, 
were abolished.^ Yet in the following year a new statute ^ 
virtually revived one branch of the right under essential 
modifications : when royal progresses were necessary in the 
future, warrants might be issued from the Board of Green 
Cloth, authorizing the King to use such carts and carriages 
as he might require, at a fair rate of hire specified in the Act 
of Parliament. 

II. Branches of Ptirveyance restricted by Magna Carta. 
A practice tolerated because of its absolute necessity, when 
confined to providing for the needs of the King's household, 
became intolerable when claimed by every castle-warden, 
sheriff, and local bailiff, for his own personal or official 
needs. Discretionary authority was vested by John in a 
class of officials least qualified to use it, unscrupulous 
foreign adventurers hired to intimidate the native popula- 
tion, responsible to no one save the King, and careful never 
to issue from their strongholds except at the head of their 
reckless soldiery. The Great Charter contained a few 
moderate provisions for checking the abuses of purvey- 
ance. 

(i) Provisioning of castles. Commanders of fortresses 
were left free by Magna Carta to help themselves to such 
corn and other supplies as they deemed necessary for their 
garrisons. Immediate payment, however, must be made in 
current coin (not in exchequer tallies) for everything they 
requisitioned, unless the owner consented to postpone the 
date of payment. The Charter of 1216 made a slight modi- 
fication in favour of castellans. Payment for goods taken 
from the town where the castle was situated might be legally 
delayed for three weeks, a term extended in 12 17 to forty 
days. Such relaxation was perhaps necessary to meet the 
case of a warden with an empty purse called on to provide 
against an unexpected siege or other emergency ; but the 
peaceful townsmen, over whose dwellings the dark walls of 
a feudal stronghold loomed, would not dare to press unduly 
for payment. Under Henry's Charters, as under that of 
John, immediate payment had to be tendered to owners 

1 12 Charles II. c. 24, ss. II-12. * 13 Charles II. c. 8. 



332 MAGNA CARTA 

who lived elsewhere than in this neighbouring town.^ 
(2) Requisitioning horses and carts. The provisions of 
chapter 30, modified in subsequent reissues, sought to pro- 
hibit sheriffs from commandeering wagons that were the 
property of freemen. (3) Appropriation of timber. The 
succeeding chapter confined the King and his officers to 
the use of such wood as they could obtain from the royal 
demesnes.^ 

III. Branches of Purveyance not mentioned in Magna 
Carta. A wide field was left alike for the use and the abuse 
of this prerogative, after due effect had been given to these 
moderate provisions. Two minor aspects of purveyance 
came into prominence in later history. 

(i) Requisition of forced labour. Hallam explains how 
the King's rights of pre-emption were extended, by 
analogy, to his subjects' labour. "Thus Edward III. 
announces to all sheriffs that William of Walsingham had 
a commission to collect as many painters as might suffice for 
'our works in St. Stephen's chapel, Westminster, to be at 
our wages as long as shall be necessary ' ; and to arrest and 
keep in prison all who should refuse or be refractory ; and 
enjoins them to lend assistance. Windsor Castle owes its 
massive magnificence to labourers impressed from every 
part of the kingdom. There is even a commission from 
Edward IV. to take as many workmen in gold as were 
wanted, and employ them at the King's cost upon the 
trappings of himself and his household." ^ Perhaps, how- 
ever, such demands did not form a legal branch of 
purveyance, but were merely instances of illegal royal 
encroachments. 

(2) Billeting of soldiers in private houses. This practice, 

^ The Statute of Westminster I. (3 Edward I. c. 7) enacted " that no constable 
or castellan from henceforth take any prise or like thing of any other than of such 
as be of their own town or castle, and that it be paid or else agreement made 
within forty days, if it be not ancient prise due to the king, or the castle, or the 
lord of the castle," and further (c. 32) that purveyors taking goods for the King's 
use, or for a garrison, and appropriating the price received therefor from the 
exchequer, should be liable in double payment and to imprisonment during the 
King's pleasure. 

2 For details, see under cc. 30 and 31. ^jj^llam. Middle A^es, III. 221. 



CHAPTER TWENTY-EIGHT 333 

which may be considered a branch of purveyance, has 
always been pecuHarly abhorrent to pubHc opinion in Eng- 
land. It is as old as the reign of John ; for, when that King 
visited York in 1201, he complained bitterly that the citizens 
neither came out to meet him nor provided for the wants of 
his crossbow-men. His threats and demands for hostages 
were with difficulty turned aside by a money payment of 
;^ 1 00.1 Charles I. made an oppressive use of this preroga- 
tive, punishing householders who refused to pay illegal 
taxes by quartering his dissolute soldiery upon them, a 
practice branded as illegal by the Petition of Right in 
1628.2 



CHAPTER TWENTY-NINE. 

NuLLUS constabularius distringat aliquem militem ad 
dandum denarios pro custodia castri, si facere voluerit 
custodiam illam in propria persona sua, vel per alium 
probum hominem, si ipse eam facere ntn possit propter 
racionabilem causam ; et si nos duxerimus vel miserimus 
eum in exercitum, erit quietus de custodia, secundum 
quantitatem temporis quo per nos fuerit in exercitu. 

No constable shall compel any knight to give money in lieu 
of castle-guard, when he is willing to perform it in his own 
person, or (if he himself cannot do it from any reasonable 
cause) then by another responsible man. Further, if we have 
led or sent him upon military service, he shall be relieved from 
guard in proportion to the time during which he has been on 
service because of us. v^ 

Castle-guard, or the liability to serve in the garrison of a 
royal fortress, formed part of the feudal obligations of the 
owners of certain freeholds. This service was sometimes 
due in lieu of attendance in the army; more usually the 
tenant who owed garrison duty owed knight's service as 
well. 3 It was probably this duplication of duties that pre- 

^ See Rotuli de oblatis etjinihtts, 119. ^See 3 Charles I. c. I. 

3 See the examples collected in Pollock and Maitland, I. 257. See also in 
Rotuli de oblatis et finibus^ 107, how in 1200 Ralph de Bradel offered John 
40 marks and a palfrey to be relieved of " the custody of the work of the castle of 
Grimsby." 



334 MAGNA CARTA 

vented castle-guard from hardening into a separate tenure.^ 
John preferred to commute personal service of castle-guard 
for money payments (analogous to the scutage paid in lieu 
of knight's service), and to man his feudal towers with 
soldiers of fortune rather than with rebellious Englishmen. 
Captains of royal castles were, therefore, in the habit of 
demanding money even from those who offered personal 
service. What was worse, when the freeholder followed 
John on distant service, he was mulcted in a money pay- 
ment because he had not stayed at home to perform garrison 
duty during the same period. Both abuses were forbidden 
in 1 2 15.2 In certain circumstances, however, this prohibi- 
tion would have deprived the King of what was equitably 
due to him. Suppose he had granted two fiefs to the same 
tenant — one by simple knight's service, the other by castle- 
ward. A double holding implied double service; the 
tenant could not in fairness plead that the service of one 
knight, rendered abroad, operated as the full discharge of 
the services of two knights due from his two separate fiefs. 
Castle-guard must in such a case be performed by an 
efficient deputy, or else the usual compensation be paid. 
The reissue of 12 17 amended John's Charter to this effect. 
Service with the army abroad operated as a discharge of 
castle-guard at home, but not where the tenant owed two 
services for two distinct fiefs.^ 



CHAPTER THIRTY. 

NuLLUS vicecomes, vel ballivus noster, vel aliquis alius, 
capiat equos vel carectas alicujus liberi hominis pro cariagio 
faciendo, nisi de voluntate ipsius liberi hominis. 

No sheriff or bailiff of ours, or other person, shall take the 
horses or carts of any freeman for transport duty, against the 
will of the said freeman. 

^ Cf. stipra, p. 57 n. 

2 Adams, Origin^ 238, contrasts the principle of this chapter with that of c. 12, 
where no option is allowed the vassal of offering service in lieu of scutage — a 
breach of strict feudal custom. 

"^ Defeodo pro quo fecit servicimn in exe^-citti. This variation in the charter of 
121 7 seems to have escaped Dr. Stubbs' attention. See Select Charters ^ 346. 



CHAPTER THIRTY 335 

The Charter here returns to the subject of purveyance, 
one branch of which is practically abolished, except as 
affecting villeins. No carts or horses belonging to a free- 
man were to be requisitioned by any sheriff or bailiff for the 
King's use without the owner's consent ; that is to say, they 
could not be requisitioned at all. Protection, however, was 
limited to freemen; the inference is that the horses and 
implements of villeins were left at the disposal of the Crown. 
The relative chapter of the reissue of 1216 partially restored 
this branch of purveyance ; consent of the owner, even when 
a freeman, need not be obtained, provided hire was paid at 
rates that were fixed : lod. per diem for a cart with two 
horses, is. 2d. for one with three. ^ The prerogative, 
though restored, was not to be abused. 

In 12 17 it was again slightly restricted in favour of the 
upper classes. No demesne cart of any " parson " (ecclesi- 
astica persona), or knight, or lady, could be requisitioned by 
the bailiffs. The " demesne " carts were, of course, those 
that belonged to the owner of the manor sLy opposed to the 
carts of the villeins : the rights of villeins, if they had any, 
must not stand against the rights of the Crown. Yeomen 
and small freeholders were also left exposed to this annoy- 
ing form of interference. Abuses continued. Purveyors 
would lay hands on all horses and carts in the countryside — 
far more than they required — choosing perhaps the season 
of harvest or some equally busy time. The owners, who 
urgently required them for their own purposes, had to pay 
ransom to regain possession. Edward I. enacted that per- 
petrators of such deeds should be "grievously punished by 
the marshals," if, as members of his household, they were 
amenable to the summary jurisdiction of his domestic 
tribunal, or, if not members, then they should pay treble 
damages and suffer imprisonment for forty days.^ 

^The rate fixed by 13 Charles II. c. 8, for the hire of carts or carriages requisi- 
tioned by the King, was 6d. per mile. This hire included six oxen, or alternatively 
two horses and four oxen, to each vehicle. 

2 See 3 Edward I. c. 32. 



336 MAGNA CARTA 



CHAPTER THIRTY-ONE. 

Nec nos nee ballivi nostri capiemus alienum boscum ad 
castra, vel alia agenda nostra, nisi per voluntatem ipsius 
cujus boscus ille fuerit. 

Neither we nor our bailiffs shall take, for our castles or for 
any other work of ours, wood which is not ours, against the will 
of the owner of that wood. 

Purveyance of timber growing elsewhere than on royal 
manors is here prohibited in absolute terms. In marked 
contrast with the limited restrictions placed upon other 
branches of purveyance, this branch is taken away, not 
merely from local officials, but from the King himself.^ 
There was an obvious reason for greater stringency in this 
case : the King's own extensive demesne woods furnished 
timber in abundance, whether for building purposes or for 
firewood, leaving him no excuse for taking, especially if for 
nothing, the trees of other people. 

The purveyors of James I., shortly after his accession, 
transgressed this provision of Magna Carta by requisitioning 
timber for repairing the fortifications of Calais. A decision 
against the Crown was given by the Barons of Exchequer 
in the second year of James's reign, and a proclamation was 
issued, bearing date 23rd April, 1607, disclaiming any right 
to such a prerogative. The guilty purveyors were brought 
before the Star Chamber.^ 



CHAPTER THIRTY-TWO. 

Nos non tenebimus terras illorum qui convicti fuerint de 
felonia, nisi per unum annum et unum diem, et tunc red- 
dantur terre dominis feodorum. 

1 Cf. Sir James Ramsay, Angevin Empire^ p. 476, who considers that chapters 
28 and 30, in the branches of prerogative with which they respectively deal, 
*' leave the king's personal right open." 

^ See Coke, Second Institute, 36. 



CHAPTER THIRTY-TWO 337 

We will not retain beyond one year and one day, the lands of 
those who have been convicted of felony, and the lands shall 
thereafter be handed over to the lords of the fiefs. 

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

(i) The felon's lands. No difficulty arose when Crown 
tenants were convicted, for the King was lord of the fief as 
well as lord paramount, and claimed the whole lands as 
escheat. When the condemned man was the tenant of a 
mesne lord, however, a conflict of interests occurred, and 
here a distinction, which gradually became hard and fast, 
was drawn between treason and felony.^ Treason was an 
offence against the person of the sovereign, and it was 
probably on this ground that the King made good his claim 
to seize as forfeit the entire estate, real and personal, of 
every one condemned to a traitor's death. With regard to 
ordinary felons, what looks like a compromise was arrived 
at. The King secured the right to lay waste the lands in 
question and to appropriate everything he could find there 
during the space of a year and a day ; after which period 
he was bound to hand over the freehold thus devastated to 
the lord who claimed the escheat. Such was the custom 
during the reign of Henry II. as described by Glanvill,^ who 
makes it perfectly clear that, before the lands were given up 
at the expiration of the year, houses were thrown down and 

* Pollock and Maitland, II. 500, consider that the present chapter had a distinct 
influence in accentuating this twofold classification of crimes. 

^Glanvill, VII. c. 17. Cf. Bracton, folio 129, for a graphic description of 
"waste," which included the destruction of gardens, the ploughing up of meadow 
land, and the uprooting of woods. 



338 MAGNA CARTA 

trees rooted up. The lord, when at last he entered into 
possession of the escheated lands found a desert, not a 
prosperous manor. ^ 

Coke has attempted to give a more restricted explanation 
of the Crown's rights in this respect, maintaining that the 
" year and day " was not an addition to, but a substitute for, 
the earlier right of "waste," that the King renounced his 
barbarous claims in return for the undisputed enjoyment of 
the ordinary produce for one year only, and agreed, in 
return to hand over the land with all buildings and appur- 
tenances intact.^ The authorities he cites, however, are 
inconclusive, and the weight of evidence on the other side 
leaves little room for doubt. Not only does the phrase* 
" year, day, and waste " commonly used, create a strong 
presumption ; but Glanvill's words in speaking of the earlier 
practice are quite free from ambiguity, while the document 
known as the Praerogativa Regis is equally explicit for a 
period long after Magna Carta.^ Waste, indeed, was a 
question of degree, and the Crown was not likely to be 
scrupulous in regard to felons' lands, when it allowed 
wanton destruction even of Crown fiefs held in honourable 
wardship.* 

Wide as were the legal rights of the Crown, John 
extended them illegally. When his officers had once 
obtained a footing in the felon's land, they refused to sur- 
render it to the rightful lord after the year and day had 
expired. In 1205, Thomas de Aula paid 40 marks and a 
palfrey to get what he ought to have had for nothing, 
namely, the lands escheated to him through his tenant's 

^ Is it possible .that the origin of '* year and waste " can be traced to the difficulty 
of agreeing on a definition of **real" and "personal" estate respectively? The 
Crown would claim everything it could as "chattels" — a year's crops and every- 
thing above the ground. 

^ Second Institute, p. 36. 

2 See Pollock and Maitland, I. 316. "The apocryphal statute praerogativa 
regis which may represent the practice of the earlier years of Edward I." Bracto 
(folio 129) while stating that the Crown claimed both, seems to doubt the legality 
of the claim. 

*Cf. c. 4. 



CHAPTER THIRTY-TWO 339 

felony. 1 Magna Carta prohibited such abuses, and settled 
the law for centuries. ^ The Crown long exercised its 
rights, thus limited, and Henry III. sometimes sold his 
" year, day, and waste " for considerable sums. Thus, in 
1229 Geoffrey of Pomeroy was debited with 20 marks for 
the Crown's rights in the lands of William de Streete and 
for his corn and chattels. This sum was afterwards dis- 
charged, however, on the ground that the King, induced to 
change his mind, doubtless by a higher bid, had bestowed 
these rights on another.^ 

(2) The felon^s chattels. From an early date the King 
enjoyed, like other owners of courts, the right to the goods 
of the offenders he condemned. When Henry II. reorgan- 
ized the system of criminal justice, and formulated, in the 
Assizes of Clarendon and Northampton, a scheme whereby 
all grave offenders should be formally indicted, and there- 
after reserved for the coming of his own justices, he estab- 
lished a royal monopoly of jurisdiction over felons; and 
this logically implied a monopoly over their chattels — an 
inference confirmed by the express terms of article five of 
the earlier Assize. As the list of " pleas of the Crown " 
grew longer, so this branch of royal revenue increased pro- 
portionately, at the expense of the private owners of " courts 
leet." The goods of outlaws and fugitives from justice 
likewise fell to the exchequer — the sheriff who seized them 
being responsible for their appraised value.* 

* Such at least is the most probable explanation of an entry on the Ftpe Roll of 
6 John (cited Madox, I. 488) ; although it is possible that Thomas only bought in 
•* the year day and waste." 

2 Magna Carta is peculiar in speaking of year and day, without any reference to 
waste. If it meant to abolish " waste " it ought to have been more explicit. Later 
records speak of '■'■annum et vastuju,''^ e.g. the Memoranda Roll, 42 Henry III. 
(cited Madox, I. 315), relates how 60 marks were due as the price of the "year 
and waste " of a mill, the owner of which had been hanged. 

^ Pipe Roily 13 Henry III., cited Madox, I. 347. In Kent, lands held in gavel- 
kind were exempt alike from the lord's escheat and the King's waste, according to 
the maxim, "The father to the bough, the son to the plough." See, e.g. praero: 
gativa regis, c. 1 6. See also Gloucester Pleas ^ 1 14, where apparently the King's 
rights over half a hide were sold for 20s. 

* Madox, I. 344-8, cites from the Pipe Rolls many examples. 



340 MAGNA CARTA 

The magnates in 12 15 made no attempt to interfere with 
this branch of administration, tacitly acquiescing in Henry 
II.'s encroachments on their ancestors' criminal jurisdic- 
tions and perquisites. Under Henry HI. and Edward I., 
the forfeited goods of felons continued to form a valuable 
source of revenue. In 1290 the widow of a man who had 
committed suicide, and therefore incurred forfeit as a felo de 
se, bought in his goods and chattels for ;^300, a high price, 
in addition to which the Crown specially reserved its " year, 
day and waste." ^ 

H. Indictment, Conviction, and Attainder, The Crown 
could not appropriate the property of men merely suspected 
of crime, however strong might be the presumption of guilt. 
Mere accusation was not enough ; a formal judgment was 
required. The Charter refers to the lands of a " convicted " 
offender, and conviction must be distinguished from indict- 
ment on the one hand, and from attainder on the other; 
since these formed three stages in the procedure for deter- 
mining guilt. 

(i) Indictment. It has been already shown ^ how Henry 
of Anjou tried to substitute, wherever possible, indictment 
by a jury for private appeal in criminal suits. The Assize 
of Clarendon authorized such indictments to be taken before 
sheriffs, and we learn from Bracton that, immediately the 
formal accusation had been made, the sheriff became respon- 
sible for the safety of the accused man's property, both real 
and personal. With the help of the coroners and of law- 
worthy men of the neighbourhood he must have the chattels 
appraised and inventoried, and hold them in suspense until 
the " trial," providing therefrom in the interval " estovers," 
that is, sufficient sustenance for the accused and his family.^ 

If the prisoner was acquitted or died before conviction, 
the lands and chattels were restored to him or to his rela- 
tives, the Crown taking nothing. Reginald of Cornhill, 
sheriff of Kent, was discharged in 1201 from liability for the 
appraised value of the goods of a man who, after indictment 
for burning a house, had died in gaol non convictus. As 

^This case is cited by Madox, I. 347, from 18 Edv/ard I. 

^ Supra^ p. 88. ' See Bracton, II. folio 123, and folio 137. 



CHAPTER THIRTY-TWO 341 

the Pipe Roll states, his chattels did not pertain to the 
King.i 

(2) Conviction, Only the justices could " try " the plea, 
that is, give sentence according to success or failure in the 
test appointed for the accused man to perform .2 Prior to 
1 2 15 the usual test was ordeal of water in the ordinary case, 
or of the red-hot iron in the case of men of high rank and of 
women. If the suspected person failed, sentence was a mere 
formality; he had "convicted" himself of the felony. As 
a consequence of the condemnation of ordeal by the Lateran 
Council of 1 2 15, the verdict of a petty jury became the 
normal " test " that branded an offender as convictus. This 
was long looked on as an innovation, and accordingly the 
law refused to compel the accused, against his will, to trust 
his fate to this new form of trial. He might refuse to " put 
himself upon his country," and by " standing mute" make 
his " conviction " impossible, saving himself from punish- 
ment and depriving the King of his chattels and " year and 
day." For centuries those responsible sfirank from the 
obvious course of treating silence as equivalent to a plea 
of guilty; but while liberty to refuse a jury's verdict was 
theoretically recognized, barbarous measures were in reality 
adopted to compel consent. The Statute of Westminster 
in 1275 ^ directed that all who refused should be imprisoned 
en le prison forte et dure. This statutory authority for 
strict confinement was liberally interpreted by the agents 
of the Crown, who treated it as a legal warrant for revolting 
cruelties. Food and drink were virtually denied, a 
little mouldy bread and a mouthful of impure water only 
being allowed upon alternate days ; and at a later date the 
prisoner was slowly crushed to death under great weights 
"as heavy, yea heavier than he can bear." Brave men, 
guilty, or mayhap innocent, but suspicious of a corrupt 
jury, preferred thus to die in torments, that they might 
save to their wives and children the property which would 
upon conviction have fallen to the Crown. The fiction was 
carefully maintained that the victim of such barbarous treat- 

1 Pipe RolU 2 John, cited Madox, I. 348. ^ Qf^ supra, c. 24. 

33 Edward I. c. 12. 



342 MAGNA CARTA 

ment was not subjected to " torture, " always illegal at 
common law, but merely to peine forte et dure, sl perfectly 
legal method of persuasion under the Statute of 1275. 
This procedure was not abolished until 1772; then only 
was an accused man for the first time deprived of his right 
to " have his law " — his claim to ordeal as the old method 
of proving his innocence. Until that date, then, a jury's 
verdict was treated as though it were still a new-fangled 
and unwarranted form of " test " usurping the place of 
the ordeal, although the latter had been virtually abolished 
early in the thirteenth century. ^ 

(3) Attainder. Coke in commenting on this passage 
draws a further distinction between "conviction," which 
directly resulted from a confession or a verdict of guilty, 
and " attainder " which required a formal sentence by the 
judge. In his age, apparently, it was the attaint that 
implied forfeiture; looking as usual at Magna Carta 
through seventeenth-century glasses, he seems surprised 
to find " convicted " used where he would have written 
"attainted." Yet this distinction, if recognized in 1215, 
must have been immaterial then. It was under the Tudor 
sovereigns that the doctrine of the penal effects of attainder 
was elaborated. When sentence was passed on a felon, a 
blight fell on him : his blood was impure, and his kindred 
could inherit nothing that came through him. The Crown 
reaped the profit.^ 

Statutes of the nineteenth century modified the harshness 
with which this rule bore on the felon's innocent relations : ^ 
finally the Forfeiture Act of 1870* abolished "corruption 
of blood " and deprived the Crown of all interest in the 
estates of felons, alike in escheats and chattels. Thus the 
word "attainted" has become practically obsolete. A 

^The Act 12 George III. c. 20, made standing mute equivalent to a plea of 
guilty. A later Act, 7 and 8 George IV. c. 28, made it equivalent to a plea of not 
guilty. See Stephen, Hist. Crim. Law^ I. 298. 

* This fiction of corrupt blood was apparently based in part on a false derivation 
of the word "attainder." See Oxford English Dictionary. 

3 E.g. 54 George III. c. 145, and 3 and 4 William IV. c. 106, s. 10. 

* 33 and 34 Victoria, c. 23. 



CHAPTER THIRTY-TWO 343 

criminal who is fulfilling the term of his sentence is known, 
not as a man attainted, but simply as a " convict," the same 
word as was used in Magna Carta. 



CHAPTER THIRTY-THREE. 

Omnes kydelli de cetero deponantur penitus de Tamisia, 
et de Medewaye, et per totam Angliam, nisi per costeram 
maris. 

All kydells for the future shall be removed altogether from 
Thames and Medway, and throughout all England, except upon 
the sea shore. 

The object of this provision is not open to doubt ; it was 
intended to remove from rivers all obstacles likely to 
interfere with navigation. Its full importance can only be 
understood when the deplorable state of the roads is kept 
in view. The water-ways were the great avenues of com- 
merce; when these were blocked, townsi^ien and traders 
suffered loss, while those who depended on them for 
necessaries, comforts, and luxuries, shared in the general 
inconvenience. Magna Carta mentions only one kind of 
impediments, namely, " kydells " (or fish-weirs), not because 
of the purpose to which these were put, but because they 
were the form of obstruction that called for repressive 
measures at the moment. This word seems to have been 
used by the framers of Magna Carta in a wide general 
sense, embracing all fixed contrivances or " engines " 
intended to catch fish, and likely by their bulk to interfere 
with the free passage of boats. ^ 

It has been gratuitously assumed that the motive for 
prohibiting " kydells " must have been of a similar nature 
to the motive for constructing them ; and that therefore 
the object of the present chapter was to prevent any mono- 
poly in rights of fishing. Law courts and writers on 
jurisprudence for many centuries endorsed this mistaken 

^The Oxford English Dictionary defines it as ** a dam, weir, or barrier in a 
river, having an opening in it fitted with nets or other appliances for catching fish." 
For weirs in Domesday Book, see Ballard, D. Inqtiest, 175-6. 



w 



344 MAGNA CARTA 

view, and treated Magna Carta as an absolute prohibition 
of tlie creation of " several " (or exclusive) fisheries in tidal 
waters. 1 Although this legal doctrine has been frequently 
and authoritatively enunciated, it rests on a misconception. 
The Great Charter sought to protect freedom of navigation, 
not freedom of fishing ; and this is obvious from the last 
words of the chapter : kydells are to be removed from 
Thames and Medway and throughout all England " except 
upon the sea-shore." It would have been a manifest 
absurdity to allow monopolies of taking fish in the open 
seas, while insisting on freedom to fish in rivers, the banks 
of which were private property. The sense is clear : no 
objection was taken to " kydells " so long as they did not 
interfere with navigation. 

The erroneous view, however, had much to excuse it, 
and acquired plausibility from the circumstance that the 
destruction of obstacles to the free passage of boats inciden- 
tally secured also free passage for salmon and other migra- 
tory fish ; and that later statutes, when legislative motives 
had become more complicated, were sometimes passed with 
both of these objects in view. The change is well illus- 
trated by a comparison of the words of two statutes of 1350 
and of 1472 respectively. The first of these repeats the 
substance of this chapter, and thus explains its object: — 
" Whereas the common passage of boats and ships in the 
great rivers of England be oftentimes annoyed by the 
inhancing of gorces, mills, weirs, stanks, stakes, and 
kydells." 2 Here there is no allusion to fish or rights of 
fishing. The later Act, while confirming, under penalties, 
previous statutes for the suppression of weirs, not only 
states its own intention as twofold, namely, to protect 

^Blackstone, Commentaries, IV. 424, declared that this chapter "prohibited for 
the future the grants of exclusive fisheries." Cf. e.g. Thomson, Magna Charta, 
214, and Norgate, John Lackland, 217. See also Malcolmson v. O'Dea (1862), 
10 H. of L. Cas., 593, and Neill v. Duke of Devonshire (1882), 8 App. Ca. at 
p. 179, — cases cited in Moore, History and Law of Fisheries, p. 13, where the 
fallacy is exposed. For an unsuccessful attempt to extend the principle to Scotland, 
after the Act of Union, see an interesting review of the first edition of this work in 
Jurid. Rev. for March, 1905. 

* 25 Edward III., stat. 3, c. 4. 



CHAPTER THIRTY-THREE 345 

navigation of rivers, and " also in safeguard of all the fry 
of fish spawned within the same," but retrospectively and 
unwarrantably attributes a like double motive to Magna 
Carta.i 

So far as Thames and Medway were concerned, this 
provision contained nothing new. To the Londoners, 
indeed, the keeping open of their river for trade was a 
matter of vital importance. The right to destroy kydelli 
had been purchased from Richard I. for 1500 marks, and 
a further sum had been paid to John to have this confirmed. 
These charters (dated 14th July, 1197, and 17th June, 1199) 
" granted and steadfastly commanded that all kydells that 
are in the Thames be removed wheresoever they shall be 
within the Thames; also we have quit-claimed all that 
which the Warden of our Tower of London was wont yearly 
to receive from the said kydells. Wherefore we will and 
steadfastly command that no warden of the said Tower, at 
any time hereafter, shall exact anything of any one, neither 
molest nor burden nor make any demand qf any person by 
reason of the said kydells." John's Charter went further 
than that of Richard, making it clear that the prohibition 
referred to Medway as well as to Thames, and granting 
the right to inflict a penalty of ;^'io upon anyone infringing 
its provisions.^ 

Magna Carta confirmed this provision and extended it 
to all rivers, and this was repeated in the reissues of 
Henry IIL The citizens of London, not content with a 
clause in a general enactment, purchased for 5000 marks 

^ 12 Edward IV. c. 7. Apparently the earliest statute which refers to weirs as 
causing injury to fish was one passed in 1402, namely, 4 Henry IV. c. 1 1 ; see Moore, 
Fisheries, p. 175. 

2 It seems to have been generally assumed that these charters conferred positive 
as well as negative privileges on the citizens, including rights of administration and 
jurisdiction over the waters of Thames. See Noorthouck, N'e7v History of I^ondon 
(1773), 36. Lufifman, Chartcj-s of London (1793), 13, says of Richard's grant in 
1 197 : "By this charter the citizens became conservators of the river Thames." 
This is an anachronism, but Patent Rolls of 33 Edward I., 5 Edward III., 
8 Edward III., contain Commissions of Conservancy. See Moore, op. cit., p. 176. 
In 1393 the statute of 17 Richard II. c. 9 granted authority to the Mayor of 
London to regulate weirs and generally to "conserve" the Thames from Staines 
downwards, and the Medway. 



346 MAGNA CARTA 

three new charters exclusively in their own favour. One 
of these, dealing with kydells in Thames and Medway, 
was issued by Henry on i8th February, 1227, in terms 
almost identical with those of Richard and John.^ 



CHAPTER THIRTY-FOUR. 

Breve quod vocatur Precipe de cetero non fiat alicui de 
aliquo tenemento unde liber honiio amittere possit curiam 
suam. 

The writ which is called praecipe shall not for the future be 
issued to anyone, regarding any tenement whereby a freeman 
may lose his court. 

The grievance here dealt with lay at the heart of the 
quarrel of 12 15, and the remedy adopted proved a vital 
factor in the history of royal jurisdiction in England. 
In extorting from John a solemn promise to restrict the 
use of this particular writ, the barons gained something 
of infinitely greater value than a petty reform of court 
procedure ; they committed their enemy to a reversal of a 
line of policy vigorously pursued for half a century. The 
process by which the jurisdiction of the King's courts was 
undermining that of the feudal courts was now to be 
arrested.^ Magna Carta, by this apparently inoffensive 
clause, was grappling in reality with an urgent problem 
of the day, fraught with tremendous practical issues alike 
for King and barons. This can only be understood in con- 
nection with the technical details on which it hinges. 

I. Royal Writs and Feudal J tir is dictions. In pleas of 
disputed titles to land, feudal theory gave sole jurisdiction 
to the lord of the^^L_ No principle was more absolutely 
established than this : no person, neither King nor Em- 
peror, had any right to interfere, except on the one ground 
of failure of justice. Not even Henry II. dared to 
repudiate this universal rule; but he adopted expedients 

^See Rotuli Cartaruniy ii Henry III. 

2 The Histoire des dticSy 149, paraphrases this chapter thus: "Toutes hautes 
justices vaurrent-ils avoir en lor tierres." Miss Norgate, Minority y 11, has not 
grasped the significance of this clause. 



CHAPTER THIRTY-FOUR 347 

to render it inoperative. If Glanvill may be trusted, 
Henry was strong enough to obtain acquiescence in his 
prohibition of any plea, concerning ownership of a lay fee, 
being tried in a seignorial court without the licence of a 
royal precept.^ 

Henry also invented, or adopted from precedents of the 
Carolingian Emperors, two types of writ, the virtual effects 
of which were to evoke causes from the lords' courts to his 
own, without too open an infringement of feudal principle.^ 
These were the Writ of Right and the Writ Praecipe, .j 
The Writ of Right proceeded on the principle that a lord X^i^t^ 
superior was bound to see that his vassals dispensed 
justice to their rear vassals. When a freeholder, the 
tenant of a mesne lord, complained to the King that justice 
was refused him, the King formally commanded the remiss 
lord " to do full right " to the complainant, and added the 
threat that, unless he did so, the King himself would. The 
writ, known as a hieve de recto tenendo, was thus issued 
to the owner of a feudal court ; professed {o afford him an 
opportunity of obedience by trying the plea in his court; 
and avoided conflict with feudal theory by justifying the 
proposed royal interference as ^^ pro defectii justitiae," It 
afforded, however, excellent opportunities for the insidious 
encroachments of the royal courts at the behest of powerful 
kings, who retained in their own hands the right to define i 
what constituted a failure to do justice.^ Jix^ 

The Writ Praecipe in its origin and antecedents diffej:ed*'''M 
fundamentally from the Writ of Right : it was addressed Qj/^ 
to the sheriff, not to the owner of a franchis^-rtwas a more 
direct violation of feudal rights, for it made no allegation 
of failure of justice but simply ignored the lord's jurisdic- 
tion, bidding the sheriff command the tenant to restore the 
land in question to the demandant^ or else to appear before 
the royal court to explain his reasons for disobedience.^ 
No opportunity was afforded the mesne lord of hearing the 
plea. The whole procedure, almost without disguise or 
excuse, was an open transference of the dispute from the 

* Glanvill, XII. 25. See stcpra, p. 89. ^g^yj^ner, Schwurgerichte, jS^. 

5 The form of the writ is given in Glanvill, XII. 3. 



348 MAGNA CARTA 

v"- manorial court to that of the King.^ The writ, which on 
the surface reads merely as a summary and final com mand 
to hand over the estate to another, is really an " original 
writ " commencing a litigation in the King's court. Dne 
important effect of its issue was that all proceedings 
instituted in inferior tribunals must immediately stop. 

The feudal lord, in whose court baron the plea would 
naturally have been decided, was thus robbed by the King 
of his jurisdiction. With it, he lost also authority over 
his tenants, and numerous fees and perquisites. The writ 
praecipe was thus an ingenious device for " evoking " a par- 
ticular cause from the manorial court to the King's court.^ 
I The two types of writ, praecipes and writs of right, at 
[first contrasted as alternative methods of bringing a plea 
I under royal jurisdiction, came in time to have entirely 
t di fferent relations. The person to whom the preliminary 
writ was issued, whether sheriff or lord of a franchise court, 
ceased to be of much importance, when the writ had become 
a mere formality. The^^gssetUial feature of a Writ of Right 
came to be that it dealt with ownership as opposed'to mere 
possession : all royal writs that originated pleas involving 
title to land w^ere then reckoned Writs of Right, which 
now embraced an important species of the originally 
opposed genus of writs praecipe.^ Thus, in one place, 
writs praecipe and writs of right overlapped each other.* 

The motives of Henry II., in instituting his legal reforms, 
were probably mixed; and it is not easy to determine 
whether he favoured his new writs most because they really 

iCf. Stubbs, ConsL Hist., I. 576. 

^Glanvill, I. 6, gives the form oi z. praecipe : Rex vicecomiti salutem^ Praecipe A. 
quod sine dilatione reddat B. tmam hidam terrae in villa ilia, unde idem B. 
giieritur quod praedictus A. ei deforceat : et nisi fee erit, summone eum per bonos 
simimonitores quod sit ibi coram me vel Justiciariis meis in crastino post octabas 
clausi Paschae apud loctim ilium, ostensuitis quare non fecerit. Et habeas ibi 
summonitores et hoc breve. Teste Ranulpho de GlanviUa apud Clarendon. 

^Brunner, Schwurgerichte, 411 ; Maitland, Col. Papers, II. 129. 

*Coke, Sec. Inst., 40, gives three varieties oi praecipe : {a) praecipe quod reddat ; 
{b) quod permittat ; {c) quodfaciat. The first group includes one variety of Writs 
of Right and the various Writs of Entry. Writs of Right, on their part, are of three 
kinds : (i) writ of right patent, (2) ^nxxt praecipe, (3) little writ of right, applicable 
to villeins on ancient demesne. 



CHAPTER THIRTY-FOUR 349 

stimulated the flow of justice in the feudal courts, or because 
they afforded facilities for sapping their strength. While 
reforming the entire administration of justice in England, 
the King hoped, by the same means, to destroy gradually 
the feudal privileges of his magnates. He intended to 
draw into his own courts all pleas relating to land. Ques- 
tions of property were to be tried before his justices, by 
combat or, at the tenant's option, by the grand assize; 
questions of possession (without any option) by the appro- 
priate petty assize. The barons showed no desire to dis- 
pute the Crown's assumption of a monopoly over the petty 
assizes; indeed they cordially acquiesced in this by the 
terms of chapter 18 of the Charter. The grand assize 
was another matter; they refused to be robbed of their 
right to determine, in their own courts baron, proprietary 
actions between their own tenants. Indeed, for such whole- 
sale extension of the King's jurisdiction over pleas of land, 
Henry II. had absolutely no precedent. He had made the 
Crown strong and then used its power for Uis own aggran- 
dizement. The King's courts had increased their authority, 
as a distinguished American historian has expressed it, 
" by direct usurpation, in derogation of the rights of the 
popular courts and manorial franchises, upon the sole 
authority of the King." ^ 

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

II. The Intention of Magna Carta. The present chapter 

1 See Bigelow, HzsL of Procedure, 78. Glanvill, read between the lines, 
supports this view. Thus in I. c. 3, he speaks of the King's courts as normally 
dealing with ** pleas of baronies" ; in I. c. 5, he speaks of what he evidently con- 
siders an abnormal expansion of this jurisdiction to any plea anent a free tenement, 
if the Crown so desired. 

2 See «//;-«, under c. 18. 



350 



MAGNA CARTA 



says nothing of the Writ of Right, but guards against the 
abuse of the Writ Praecipe, without attempting to interfere 
with its employment within its legitimate sphere, that is to 
say, in settling disputes as to Crown fiefs. John might 
keep his own court, and issue praecipes to his own tenants; 
but let him respect the rights of other feudal lords and not 
use his writs as engines of encroachment upon manorial 
jurisdictions. For the future, such writs must not be issued 
" concerning any tenement whereby a freeman may lose his 
court." Writs praecipe might be freely used for any other 
purpose, but not for this. This one purpose, however, 
was exactly what had specially recommended them to King 
Henry. 

The present chapter must, therefore, be regarded as one 
of the most reactionary in the Charter : the barons had 
forced John to promise a complete reversal of the deliberate 
policy of his father. 

Here, then, under the guise of a small change in legal 
procedure, was concealed a notable triumph of feudalism 
over the centralizing policy of the monarchy — a backward 
step, which, if given full effect to, might have ushered in a 
second era of feudal turbulence such as had disgraced the 
reign of Stephen. We are told on high authority that 
John's acknowledgment of "the claims of the feudal lord 
to hold a court which shall enjoy an exclusive competence 
in proprietary actions " was one which " Henry II. would 
hardly have been forced into."^ That may well be; but 
John had already more than once rejected this proposal 
with vehemence. In 12 15, he could no longer strive against 
the inevitable, and agreed under compulsion to provisions 
which he had no intention to keep. The concession, 
although insincere, was nevertheless an important one. 
The substance of chapter 34 was repeated, with some trivial 
verbal alterations, in all future issues of Magna Carta.^ 

1 Pollock and Maitland, I. 151. 

2 The version of 1216 speaks of a "free tenement," where that of 1215 spoke 
merely of a '* tenement." The addition makes no change, since in no case could 
the King's courts try pleas affecting villeins of mesne lords. Perhaps the object is 
to make it clear that there was no interference with the King's rights over holdings 
of his own villeins. 



CHAPTER THIRTY-FOUR 351 

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

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

(i) The letter of the law. The Chancery, in obedience 
to Magna Carta, ceased to issue this particular form of writ 
in such a manner as to cause a freeman " to lose his court." 
It was still issued to Crown tenants; but strictly denied 
to under-tenants, who were thus left to find redress at the 
feudal court of the magnate from whom they held their 
land.i 

*In translating the reissue of 1225, the Statutes at Large expand the word 
^'■praecipe'''' into ^^ praecipe in capite,^* for which there is no authority in any known 
text of Magna Carta, though it appears in Coke's version of Henry's charter [Sec. 



352 MAGNA CARTA 

The measure thus forced on the Crown in the selfish 
interests of the baronage, inflicted hardship on tenants of 
mesne lords : the court baron was now their only source 
of feudal justice, and in that court they could not get the 
benefit of the improved methods of royal procedure. In 
particular, the grand assize was a royal monopoly. The 
magnates, indeed, desired to adopt it, but they had difficulty 
in getting together twelve knights willing to act as jurors.^ 
Whatever hopes the barons entertained of overcoming such 
difficulties were disappointed : in 1259 the Provisions of 
Westminster declared that freeholders should not be com- 
pelled to swear against their will " since no one can make 
them do this without the King's warrant." ^ It was the 
deliberate policy of Edward I. to exaggerate all such diffi- 
culties, putting every obstacle in the way of private courts, 
until he reduced their jurisdictions to sinecures.^ 

(2) Evasion of its spirit. While the letter of Magna 
Carta was strictly kept, its spirit was evaded. It was 
impossible to give loyal effect to an enactment that went 

Insf., 38). Authorities differ as to what constitutes z. praecipe in capite. Brunner, 
Schwtirgerichte, sec. xx., declares it to be so called "because it begins with the 
word Praecipe " ; yet all praecipes so begin, even Writs of Entry, which are cer- 
tainly not condemned by Magna Carta. Coke [Sec, Inst., 38) seems (inconsistently 
with his own version of Magna Carta) to identify the praecipe in capite with a class 
of writs NOT prohibited in the Charter, namely, with those professing to deal with 
estates held directly under the Crown : no one ought to have it without taking 
oath ** that the land is holden of the King in capite.''^ He cites illustrations from 
the reign of Edward I. Adams {Origin, 104), speaks of an **/« capite^^ clause 
inserted m praecipes to evade the prohibition of Magna Carta. See also Holdsworth, 

in. 10. 

^ Such an attempt seems to have been made in 1207 by Walter de Lacy, Earl of 
Ulster, who set up in his Irish fief what is described as nova assisa, against which 
John protested. See Rot. Pat., I. 72, for writ dated 23rd May, 1207. In one 
case John acquiesced in grand assizes being held in feudal courts : on 4th May, 
1 201, he granted licence to Hubert Walter to hold them for his tenants in gavel- 
kind. See New Rymer, I. %-}^. 

^See article 18 {Select Charters, 404). Cf. chapter 29 of the Petition of the 
Barons {^^/(?r/ Charters, 386), and Pollock and Maitland, I. 182: "The voice of 
the nation, or what made itself heard as such, no longer, as in 1215, demanded 
protection for the seignorial courts. " 

^ A partially successful attempt was made to revive feudal jurisdictions as late as 
the reign of Edward III. See Stubbs, Const. Hist., II. 638-9. 



CHAPTER THIRTY-FOUR 353 

directly counter to the whole stream of progress. Manorial 
justice was falling into disrepute, while royal justice was 
becoming more efficient and more popular. Under-tenants, 
deprived of access to the King's court by the direct road 
of the writ praecipe^ sought more tortuous modes of 
entrance. Legal fictions were devised. The problem was 
how to evade Magna Carta without openly infringing it : 
the King's justices and would-be litigants in the King's 
courts formed a tacit alliance for this end, but had to pro- 
ceed by wary steps, in the teeth of opposition from the 
powerful owners of seignorial courts. Three methods were 
adopted by the Crown : — 

(a) Magna Carta had not condemned the writ praecipe, 
but only its abuse; and abuse was sometimes difficult 
to define. That writ remained the normal procedure in 
cases of Crown holdings,^ and a liberal interpretation of 
this exception would sometimes pass unchallenged, though 
there seems no ground for supposing that any recognized 
legal fiction of this nature came into use. Then, besides 
the later developments of the praecipe (to be afterwards 
described), the King claimed, in spite of Magna Carta, to 
grant ex gratia speciali the very writ complained of .^ 

(b) When the use of the writ praecipe was barred, the 
King could fall back on the more cumbrous procedure 
instituted by writ of right, the potentialities of which 
were developed after 12 15. Coke ^ cites an instance from 
the 34th year of Edward I., where a demandant admitted 
that the lands in dispute were not held of the King in capite 
but of his brother Edmund, and therefore he could not 
proceed by way of praecipe, but he might, if he so desired, 
proceed by writ of right patent in the King's curia. This 
substitution of the writ of right for the praecipe is described 
by Professor Maitland * as " a victory of feudalism conse- 
crated by the Great Charter." 

When a tenant, whose title was challenged in his lord's 
court, applied to the King for a grand assize, the plea was 
practically certain, by one avenue or another, to reach the 

1 See, e.^. Madox, I. 793. 2 Bracton, 404b. 

^Sec. Inst., 38. ^ColL Papers^ II. 129. 

Z 



354 MAGNA CARTA 

Curia Regis.^ The rule that no one need defend his 
liberum tenementuni unless summoned by a royal writ also 
worked towards the same end. But many difiiculties lay 
in the path of the writ of right.^ The Petition of the Barons 
of 1259 (chapter 29)^ illustrates one attempt to make the 
most of these. Moreover, the whole procedure was dilatory^ 
expensive, and inelastic, and it was gladly abandoned, after 
the invention of less direct but more convenient methods of 
effecting the same purpose. 

(c) The procedure which rendered recourse to the writ 
of right unnecessary was instituted by one of various writs 
developed from the older praecipe and known as writs of 
entry. These writs instituted procedure in the King's 
court on the averment of some recent flaw in the tenant's 
title, which could be settled without opening up the whole 
matter of the ownership. This was a subterfuge, for the 
settling of the special point virtually decided the general 
question of ownership without appeal. Although probably 
not invented for the express purpose of defeating this 
chapter of the Great Charter, these writs were soon applied 
to that purpose. One of the most useful of their number 
was the writ of cosinage, devised by William of Raleigh, 
extending to others than the dispossessed heir the simple 
procedure of the petty assizes. As early as 1237, it was 
decided in the King's court that such a writ did not violate 
the Charter.* Writs of entry were thus, from the point 
of view of the magnate with his private court, wolves in 
sheep's clothing. They professed to determine a question 
of possession, but really decided a question of ownership. 
At first, the pleas to which they could be applied were few 
and special. Steadily, new forms of action were devised 
to cover almost every conceivable case. The process of 
evolution was a long one, commencing soon after 12 15, and 
virtually concluding with chapter 29 of the Statute of Marl- 

'See Brunner, SchwitrgeHchte, 406; Maitland, Coll. Papers, II. 129. 

2 See Glanvill, XII. 7. ^ SeL Chart., 386-7. 

*See Bracton's Note-book, plea 1215, where the writ in question is cited at 
length : it contains the sentence, " nee tollat aliati curiam S7tam nhi locum habere 
possit breve de recto.'''' 



CHAPTER THIRTY-FOUR 355 

borough, or rather with the liberal construction which Crown 
lawyers placed upon that statute in the following reign. 

Edward I., at the height of his power, and eager to set 
his house in order, shrank from an open breach of the 
Great Charter, gladly adopting subtle expedients to oust 
mesne lords from rights secured to them by the present 
chapter. In Edward's reign the legal machinery was 
brought to perfection, so that thereafter no action relating 
to freehold was ever again tried in the courts baron of the 
magnates, but, in direct violation of the spirit of Magna 
Carta, decided in the courts of the King.i 

The demandant had no need to infringe the prohibi- 
tion against the older form of writ praecipe when he 
could obtain another writ, equally effective. A writ of 
entry was, indeed, to a peaceable demandant, preferable to 
a writ praecipe, which could only be issued to one prepared 
to offer battle, the option of accepting lying with his 
adversary. Crown tenants, even, who could obtain the 
original writ praecipe, came to prefer the modern substitute; 
and clause 34 of Magna Carta was virtually obsolete. 

IV. Influence on later legal development. One of the 
indirect effects of the clause was of a most unfortunate 
nature. The necessity it created for effecting reforms by 
a tortuous path did great and lasting harm to the form of 
English law. Legal fictions have indeed their uses, by 
evading technical rules of law in the interests of substantial 
justice. The price paid for this relief, however, is usually 
a heavy one. Complicated procedures and underhand 
expedients have to be invented, and these lead in turn to 
new legal technicalities of a more irrational nature than 
the old ones. It would have been better in the interests 
of scientific jurisprudence, if so desirable a result could have 
been effected in a more straightforward manner. The 
authors of Magna Carta must bear the blame.^ 

^ Technical details are given by Pollock and Maitland, II. 63-7. The whole 
family of writs were known as "writs of entry sur disseisin''^ ; and these were 
applied to still wider uses after 1267 on the authority of the Statute of Marl- 
borough, as " writs of entry sur disseisin on the posty See also Maitland, Preface 
to Sel. Pleas in Manorial Courts, p. Iv. 

2 Cf, Pollock and Maitland, 1. 1 5 1 , and SeL Pleas in Manoi-ial Courts, already cited. 



356 MAGNA CARTA 



CHAPTER THIRTY-FIVE. 

Una mensura vini sit per totum regnum nostrum, et una 
mensura cervisie, et una mensura bladi, scilicet quarterium 
Londonie, et una latitude pannorum tinctorum et russet- 
orum et halbergectorum, scilicet due ulne infra listas; de 
ponderibus autem sit ut de mensuris. 

Let there be one measure of wine throughout our whole realm ; 
and one measure of ale ; and one measure of corn, to wit, " the 
London quarter"; and one width of cloth (whether dyed, or 
russet, or " halberget "),^ to wit, two ells within the selvedges; 
of weights also let it be as of measures. 

This chapter confirmed the provisions of various ordin- 
ances that sought to regulate the sale of commodities. 
Assizes of bread and beer were issued from time to time, 
and also assizes of weights and measures, and of wines. 
Richard's Assize of Cloth, for example, of 20th November, 
1 197, was, according to modern conceptions of the proper 
sphere of government, partly commendable and partly ill- 
advised. It strove, on the one hand, to overcome the 
inconvenience experienced by traders, who met with vary- 
ing standards as they moved their wares from place to place. 
What was of more importance, the Assize sought to obviate 
frauds perpetrated upon buyers under shelter of ambiguous 
weights and measures. The London quarter must, there- 
fore, be used everywhere for corn ; and one measure for 
wine or beer : so far, good. On the other hand, the ordin- 
ances of Richard went further than modern ideas of laisses 
faire would tolerate. In particular, freedom of trade was 
interfered with by the regulations reported by Roger of 
Hoveden.2 No cloth, he tells us, was to be woven except 
of a uniform width, namely, " two ells within the lists." ^ 

^This word, unknown to Ducange, seems to be connected with the "hauberk" 
or coat-of-mail. It may mean thick cloth worn under a coat-of-mail. 

•^R. Hoveden, IV. 33-4. 

'At a later date cloth of an alternative standard width was also legalized, viz., 
of one yard between the "lists." Hence arose the distinction between "broad- 
cloth" (that is, cloth of two yards) and "streits" (that is, narrow cloth of one 



CHAPTER THIRTY-FIVE 357 

Dyed cloths, it was provided, should be of equal quality 
through and through, as well in the middle as at the 
outside. Merchants were prohibited from darkening their 
windows by hanging up, to quote the quaint language of 
the ordinance, " cloth whether red or black, or shields 
(scuta) so as to deceive the sight of buyers seeking to 
choose good cloth." Coloured cloth was only to be sold 
in cities or important boroughs. Here we have a sumptuary 
law meant to ensure that the lower classes went in modest 
grey attire. Six lawful men were to be assigned to keep 
the Assize in each county and important borough. These 
custodians of measures must see that no goods were bought 
or sold except according to the standards ; imprison those 
found guilty of using other measures ; and seize the chattels 
of defaulters, for the King's behoof. If the custodes per- 
formed their duties negligently they were to suffer amerce- 
ment of their chattels.^ Richard's Assize of Measures was 
supplemented in 1199 by John's Assize of Wine, which 
tried to regulate the price of wines of various qualities,^ an 
attempt not repeated in Magna Carta. 

The author who gives us the text of the ordinance of 
1 197, tells us that its terms were too stringent, and had to 
be relaxed in practice.^ This was done in 1201 : the King's 
justices seized cloth that was less than the legal width. 
They compromised, however, by accepting money " to the 
use of the King and to the damage of many " ; thus 
Hoveden denounces what he regards as an unlawful bargain 
between justices and traders for evading the strict letter of 
the ordinance. 

The justices, indeed, were often more intent on collecting 
fines for its breach than on enforcing the Assize. In 1203, 
two merchants of Worksop were amerced each in half a 

yard) (see Statute i Richard III. c. 8). The word " broadcloth " has, long since, 
changed its meaning, and now denotes material of superior quality, quite irrespec- 
tive of width. See Oxford English Dictionary, under "Broadcloth." 

^Cf. supra, c. 20, for "amercements," and supra, c. 24, for "custodes" of 
pleas (or coroners). 

2 See R. Hoveden, IV. icx). < 

'See Hoveden, IV. 172, and Stubbs, Const. Hist., I. 616. 



358 , MAGNA CARTA 

mark for selling wine contrary to the Assize, while the 
custodians of measures of the borough were mulcted in 
one mark for performing their duty negligently — an exact 
illustration of the words of the ordinance.^ In the same 
year, a fine of one mark was imposed on certain merchants 
"for stretching cloth," in order, presumably, to bring it 
to the legal width. ^ Merchants frequently paid heavy fines 
to escape the ordinance altogether.^ 

When the barons in 12 15 insisted upon John enforcing 
his brother's ordinance, they took a step in their own 
interests as buyers, and against the interests of the trade 
guilds as sellers. Although this provision was repeated 
in subsequent charters, evasion continued. One example 
may suffice : in the second year of Henry III.'* the citizens 
of London paid 40 marks that they might not be questioned 
for selling cloth less than two yards in width. Here is an 
illustration of the practice of the judges to which Hoveden 
had objected, and which Magna Carta had apparently failed 
to put down. Sometimes, however, Richard's Assize of 
Measures^ and John's Assize of Wine were enforced. 
In 1 2 19, a Lincolnshire parson, with a liberal conception 
of his parochial duties, had to pay 40s. for wine sold extra 
Assisam.^ Parsons, apparently, might engage in trade, 
but only if they conformed to the usual regulations. 

* See Pipe Roll^ 4 John, cited Madox, I. 566. 

* See ibid. 

^In 1203 the men of Worcester paid lOOs. *^ ut possint emere ct vendere pannos 
tinctos sicut solebani tempore Regis Henrici " ; and the men of Bedford, Beverley, 
Norwich and other towns made similar payments. See Pipe Roll, 4 John, cited 
Madox, I. 468-9. 

* See Pipe Roll, cited Madox, I. 509. 
^ Gloucester Pleas, No. 501. 

^ Pipe Roll, 3 Henry III., cited Madox, I. 567. 



CHAPTER THIRTY-SIX 359 



CHAPTER THIRTY-SIX. 

NiCHiL detur vel capiatur de cetero pro brevi inquisicionis 
de vita vel membris, sed gratis concedatur et non negetur. 

Nothing in future shall be given or taken for a writ of inquisition 
of life or limbs, but freely it shall be granted, and never denied. 

This chapter has an important bearing upon trial by 
combat, and none at all upon habeas corpus, to which it is 
often supposed to be closely related. The writ upon which 
emphasis is here laid had been invented by Henry II. to 
obviate the judicial duel, by allowing the accused to refer 
the question of guilt or innocence to the verdict of his 
neighbours. 

I. Trial by Combat prior to the Reign of John, The 
crucial moment in judicial proceedings during the Middle 
Ages arrived, as has already been explained,^ when the 
**test" or "trial" (lex), appointed by the court, was 
attempted by one or both of the litigants. The particular 
form of proof to which the warlike Norman barons were 
attached was the duellum, and it was only natural that such 
of the old Anglo-Saxon aristocracy as associated with them 
on terms of equality should adopt their prejudices. " Com- 
bat " became the normal mode of deciding pleas among the 
upper classes. From the first, however, it seems not to have 
been competent for property of less than los. in value, ^ and 
it soon came to be specially reserved for two classes of dis- 
putes — civil pleas instituted by writ of right, and criminal 
pleas following on "appeal." The present chapter is con- 
cerned with the latter only. 

An " appeal " in this connection was entirely different 
from the modern appeal from a lower to a higher court. It 
was a formal accusation of treason or felony made by a 
private individual on his own initiative, and was usually 
followed by judicial combat between the appellant and 
ap^llee, each of whom fought in person. Such a right 
was necessary in an age when the government had not 

* See supray pp. 84-6. ' See Leges Henrici primi^ c. 69, §§ 15-16. 



36o MAGNA CARTA 

yet assumed a general responsibility for bringing ordinary 
criminals to justice. The wronged person, not the magis- 
trate, was the avenger of crime ; and this explains several 
peculiarities — why, for example, when the accused had 
uttered " that hateful word craven," ^ thus confessing him- 
self vanquished and deserving a perjurer's fate, the victori- 
ous accuser was entitled to his vengeance, even in face of 
a royal pardon. When Henry of Essex, constable and 
standard-bearer of Henry H., in 1163, had been worsted 
in the combat, the royal favour could not shield him, though 
the King's connivance enabled him, by becoming a monk, 
and therefore dead in law, to escape actual death by hang- 
ing.2 At an early date the procedure resembled even more 
closely a legalized private revenge : " the ancient usage 
was, so late as Henry IV. 's time, that all the relations of 
the slain should drag the appellee to the place of execu- 
tion." 3 

The evils of trial by combat are obvious. From the first 
it was dreaded by the traders of the boroughs, who paid 
heavily for charters of exemption. Their aversion spread 
to the higher classes, and was shared by Henry H. To 
that statesman, endowed with the instincts of a reformer, 
despising obsolete and irrational modes of procedure, and 
devoid of reverence for tradition, trial by combat was 
abhorrent. He would gladly have abolished it, but followed 
the more subtle policy of undermining its vitality. For 
this purpose, he used four expedients, which are of great 
interest, in respect that they throw light on the process by 
which trial by jury superseded trial by battle. * (i) Every 
facility was afforded the parties to a civil suit to forego the 
duellum voluntarily. Henry placed at their disposal, as a 
substitute, a procedure which his ancestors had reserved for 
the service of the Crown. Litigants might refer their rival 
claims to the oath of a picked body of local neighbours: 
the old recognitors thus developed into the jurata. This 

' See Bracton, folio 531. ^ See Jocelyn of Brakelond, 50-2. 

'Blackstone, Commentaries, IV. 316. Cf. Bateson, Borough CustomSy I. 73, 
II. XXV., II. xxxiv. 

*Cf. supra, p. 88, and also p. 272. 



CHAPTER THIRTY-SIX 361 

course was possible, however, only where both parties con- 
sented, and it had many features in common with a modern 
arbitration. (2) In pleas relating to the title and possession 
of land, Henry went further, granting to the tenant the 
option of a peaceful settlement even when the demandant 
preferred battle. The assisa, like the jurata, applied only 
to civil pleas. (3) Attempts were made to discourage trial 
by combat in criminal pleas also, by discouraging private 
" appeal," its natural prelude. The corporate voice of the 
accusing jury was made to supersede the individual com- 
plaint of the injured party. Only the near blood relation, 
or the liege lord, of a murdered man was allowed to prove 
the offender's guilt by combat; while a woman's right of 
appeal was kept within narrow limits.^ (4) A wide field 
was still left for private appeal arid battle; but Henry 
endeavoured to narrow it by a subtle device. In appeals of 
homicide, where the accusation was not made bona fide, but 
maliciously or without probable cause, the appellee was 
afforded a means of escaping the duelluni : he might apply 
for the writ that forms the subject of this chapter. 

II. The Writ of Life arid Limb. The writ here referred 
to, better known to medieval England as the writ de odio 
etatiaj^ was intended to protect from duel men unjustly 
appealed of homicide. Many an appealed man was glad 
to purchase escape by assuming the habit and tonsure of 
a monk ; ^ but Henry desired to save innocent men from 
the risk of failure in the duellum, without this subterfuge. 
If the accused asserted that his appellant acted " out of 
spite and hate" (de odio et atia), he might purchase from 
the chancery a wTit to refer this preliminary plea to the 

^ See under c. 54. 

*In identifying the writ spoken of by Magna Carta as that "of life and limbs" 
with the well-known writ de odio et atia, most authorities rely on a passage in 
Bracton (viz., folio 123). There is still better evidence. The Statute of West- 
minster, II. c. 29, ordains : '* Lest the parties appealed or indicted be kept long 
in prison, they shall have a writ de odio et atia like as it is declared in Magna Carta 
and other statutes." Further, in 1231, twelve jurors who had given a verdict as to 
whether an appeal was false, were asked quo waranto fecerunt sacramentwn ilhid 
de vita et menibris^ without the King's licence. See Bracton's Note-book, case 592. 

' Madox, I. 505, has collected instances. 



362 MAGNA CARTA 

verdict of twelve recognitors. If his neighbours upheld 
the plea, further proceedings were quashed: the duellum 
was avoided.^ A similar privilege was afterwards extended 
to those guilty of homicide in self-defence, or of homicide 
by misadventure.2 Soon every man appealed of murder, 
whether guilty or not, alleged as matter of course that he 
had been accused maliciously, mere " words of common 
form." Virtually, the main issue of guilt or innocence, 
not merely the preliminary pleas, came to be determined by 
the neighbours' verdict,^ which was treated as final. No 
further proceedings were necessary : none were allowed. 
The duellum had been elbowed aside, although it was not 
abolished until 1819.* 

III. Subsidiary Uses of the Writ. This inquest of life 
and limb has been claimed as the direct antecedent of the 
procedure which became so valuable a bulwark of the sub- 
ject's liberty, under the name habeas corpus. This is a 
mistake ; the modern writ of habeas corpus was developed 
out of an entirely different writ, which had for its original 
object the safe-keeping of the prisoner's body in gaol, not 
his liberation from unjust confinement.^ 

The opinion generally, though erroneously, held, is not 
without excuse; for the writ mentioned by Magna Carta 
was put to a subsidiary use, which bears superficial resem- 
blance to that of the habeas corpus. Considerable delay 
might occur between the appellee's petition for the writ 
of inquisition and the verdict upon it. In the interval, the 
man accused of murder had no right to be released on bail, 
a privilege allowed to those suspected of less grave crimes. 
This was hard where the accused was the victim of malice, 
or guilty only of justifiable homicide. Prisoners, in such 

^ Cf. Pollock and Maitland, II. 585-7, and Thayer, Evidence, 68. 

* Feudal courts adopted a similar procedure in malicious appeals (although the King 
objected to their doing so without royal licence). Inquests were held shortly after 
the abolition of ordeal (1215) in the court of the Abbot of St. Edmund. See 
Bracton's Note-book^ case 592. 

3 See Pollock and Maitland, II. 586. * 59 George III. c. 46. 

*The early history of habeas corpus is traced by Prof. Jenks, Law Quarterly 
Review^ VIII. 164. The writ de odio was obsolete prior to the invention of the 
habeas corpus. 



CHAPTER THIRTY-SIX 363 

a plight, might purchase royal writs that would save them 
from languishing for months or years in gaol. The writ 
best suited for this purpose was that de_odio et_atia, since 
it was already applicable to presumably innocent appellees 
for another purpose.^ 

As trial by combat became rapidly obsolete, the original 
purpose of the writ was forgotten, and its once subsidiary 
object became more prominent. Before Bracton's day, 
this change had taken place : the writ had come to be 
viewed primarily as an expedient for releasing upon bail 
homicides per infortunium or se defendendo. Bracton, in 
giving the form of the writ,^ declares it to be iniquitous 
that innocent men should be long detained in prison : 
therefore, he tells us, an inquisition is wont to be made, at 
the request of sorrowful friends, whether the accusation is 
bona fide or has been brought de odio et alia. This pleasing 
picture of a king moved to pity by tearful friends of accused 
men scarcely applies to John, who listened only to suitors 
with long purses : the writs that liberated homicides had 
become a valuable source of revenue. Sheriffs were repri- 
manded for releasing prisoners on bail without the King's 
warrant, but, in spite of heavy amercements, they continued 
their irregularities. Thus, in 1207, Peter of Scudimore 
paid to the exchequer 10 marks for setting homicides free 
upon pledges, without warrant from the King.^ In that 
year, John repeated his orders, strictly forbidding man- 
slayers to be set free upon bail until they had received 
judgment in presence of the King's justices. ^ 

To John, then, the fees to be received for this writ, con- 
stituted its greatest merit ; w^hereas the barons claimed, as 
mere matter of justice, that it should be issued free of charge 
to all who needed it. John's acceptance of their demands 
was repeated in all reissues, and apparently observed in 
practice. The procedure during the reign of Henry III. is 
described by Bracton in a passage already cited. After the 
writ de odio had been received, an inquest, he tells us, must 

^Cf. Brunner, Schwurgerichtey 47 1. 2 ggg fQjjQ 12^. 

3 See Pipe Roll, 8 John, cited Madox, I. 566. 

*See Rot. Pat., I. 76 ; Madox, I. 494. The date is 8th Nov., 1207. 



364 MAGNA CARTA 

be held speedily, and if tlie jury decided that the accusation 
had been made maHciously, or that the slaying had been in 
self-defence or by accident, the Crown was to be informed 
of this. Thereafter, from the chancery would be issued a 
second writ (known in later days as the writ tradias in bal- 
lium)j directing the sheriff, on the accused finding twelve 
good sureties of the county, to " deliver him in bail to those 
twelve " till the arrival of the justices. 

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

A long series of later statutes enforced or modified this 
procedure. These have been interpreted to imply frequent 
changes of policy, sometimes abolishing and sometimes re- 
introducing the writ and the procedure which followed it.^ 
This is a mistake ; the various statutes wrought no radical 
change, but merely modified points of detail ; sometimes 
seeking to prevent the release of the guilty on bail, and 
sometimes removing difficulties from the path of the inno- 

^ Gloucester Pleas, xli., where cases are cited. 

2 See Bracton's Note-book, case 1 34, and cf. case 1 548. 

2 Stephen, Hist. Crim. Law, I. 241 (following Foster, Ci-im. Casesy 284-5), 
considers that it was abolished by 6 Edward I., stat. i, c. 9. Coke, Second 
Institute, 42, thought it was abolished by 28 Edward III. c. 9 (which, however, 
seems not to refer to this at all), and restored by 42 Edward III. c. I (abolishing 
all statutes contrary to Magna Carta). Coke, ibid., and Hale, Pleas of the Crown, 
II. 148, considered that the writ was not obsolete in their day. Cf. Pollock and 
Maitland, II. 587 n. 



I 



CHAPTER THIRTY-SIX 365 

cent. The Statute of Westminster, I., for example, after a 
preamble, which animadverted on sheriffs impanelling 
juries favourable to the accused, provided that inquests 
" shall be taken by lawful men chosen by oath (of whom two 
at least shall be knights) which by no affinity with the 
prisoners nor otherwise are to be suspected." ^ The Statute 
of Gloucester, on the other hand, ordered the strict confine- 
ment, pending trial, of offenders whose guilt was apparent.^ 
The Statute of Westminster, II., once more favoured 
prisoners, providing by chapter 12 for the punishment of 
false appellants or accusers, and by chapter 29 that " lest the 
parties appealed or indicted be kept long in prison, they 
shall have a writ of odio et atia, like as it is declared in 
Magna Carta and other Statutes."^ The writ in question 
was in use in 1314,^ and seems never to have been expressly 
abolished, but to have sunk gradually into neglect, as 
appeals became obsolete and gaol deliveries were more 
frequently held. 

IV. Later History of Appeal and Battle. The right of 
private accusation was restricted, not abolished, by Henry 
II. and his successors. It could not be denied to an injured 
man who was not suspected of abusing his right. Prosecu- 
tions by way of indictment and jury trial supplemented, 
without superseding, private prosecutions by way of appeal 
and battle. The danger of a second prosecution might 
hang over the head of an accused man after he had " stood 
his trial " and been honourably acquitted. It was unfair 
that he should be kept in such prolonged suspense; and, 
accordingly, the Statute of Gloucester provided that the 
right of appeal should lapse unless exercised within year 
and day of the commission of the offence.^ To obviate all 

^Edward I. c. Ii. ^6Edwa.Yd I., stat. i, c. 9. 

3 13 Edward I. cc. 12 and 29. *See Rot. Pari., I. 323. 

^ 6 Edward I. c. 9. Appeals were extremely frequent towards the close of the 
Plantagenet period, especially in the days of " the Lords Appellant." The pro- 
ceedings on appeal sometimes took place before the Court of the Constable and 
Marshal and sometimes before Parliament. In neither case were they popular. 
One of the charges brought against Richard II. was that "in violation of Magna 
Carta " (that is, probably, of chapter 39) persons maliciously accused of treasonable 
words were tried before constable and marshal, and although "old and weak, 



366 MAGNA CARTA 

risk of a double prosecution, it was necessary that the Crown 
should delay to prosecute until the year and day had 
expired. This rule was followed in 1482. Such immunity 
from arraignment for twelve months would have produced 
a worse evil, by facilitating the escape of criminals from 
justice. After experience of its pernicious effects, the rule 
was condemned by the act of parliament which instituted the 
Star Chamber.^ 

This remedied the more recent evil, but revived the old 
injustice : the same statute enacted that acquittal should not 
bar appeal by the wife or nearest heir of a murdered man. 
Thus, once again, a man declared innocent by a jury might 
find himself exposed to a second prosecution. In 181 7 the 
British public was startled to find that a long-forgotten 
procedure of the dark ages still formed part of the law of 
England. The body of a Warwickshire girl, Mary Ash- 
ford, was discovered in a pit of water under circumstances 
that suggested foul play. Suspicion fell on Abraham 
Thornton. After indictment and trial at Warwick Assizes 
on a charge of rape and murder, he was acquitted. The 
girVs brother, William Ashford, not satisfied by what was 
apparently an honest verdict, tried to secure a second trial, 
and claimed the appeal of felony, which the judges did not 
refuse. Ashford's attempt to revive this obsolete procedure 
was met by Thornton's revival of its equally obsolete 
counterpart. Summoned before the judges of King's 
Bench, he offered to defend himself by combat, throwing 
down as " wager of battle " a glove of approved antique 
pattern. Lord Ellenborough had to admit his legal right 
to defend himself against the appeal "by his body," and 
Thornton successfully foiled the attempt to force him to a 
second trial, as Ashford, a mere stripling, declined the 

maimed or infirm," yet compelled to fight against appellants "young, strong, and 
hearty." See /^of. ParL^ III. 420, cited Neilson, Trial by Combat, 193. On the 
other hand, Statute i Henry IV. c. 14, provided that no appeals should be held 
before Parliament, but certain appeals might come before constable and marshal. 
Cf. Harcourt, Steward, 369. 

^See 3 Henry VII. c. i, s. II : the injured party, with the right of appeal, was 
*' oftentimes slow and also agreed with, and by the end of the year all is forgotten 
which is another occasion of murder." 



I 



CHAPTER THIRTY-SIX 367 

unequal contest with an antagonist of atliletic build.^ The 
unexpected revival of these legal curiosities led to their final 
suppression. In 1819 a Statute abolished proof by battle 
alike in criminal and in civil pleas : the right of appeal fell 
with it.2 



CHAPTER THIRTY-SEVEN. 

Si aliquis teneat de nobis per feodifirmam, vel per 
sokagium, vel per burgagium, et de alio terram teneat per 
servicium militare, nos non habebimus custodiam heredis 
nee terre sue que est de feodo alterius, occasione illius feodi- 
firme, vel sokagii, vel burgagii ; nee habebimus custodiam 
illius feodifirme, vel sokagii, vel burgagii, nisi ipsa feodi- 
firma debeat servicium militare. Nos non habebimus 
custodiam heredis vel terre alicujus, quam tenet de alio per 
servicium militare, occasione alicujus parve serjanterie 
quam tenet de nobis per servicium reddendi nobis cultellos, 
vel sagittas, vel hujusmodi. 

If anyone holds of us by fee-farm, by socage, or by burgage, 
and holds also land of another lord by knight's service, we will 
not (by reason of that fee-farm, socage, or burgage,) have the 
wardship of the heir, or of such land of his as is of the fief of 
that other ; nor shall we have wardship of that fee-farm, socage, 
or burgage, unless such fee-farm owes knight's service. We will 
not by reason of any small ^ serjeanty which anyone may hold 
of us by the service of rendering to us knives, arrows, or the like, 
have wardship of his heir or of the land which he holds of 
another lord by knight's service. 

In these provisions the Charter reverts to the subject of 
wardship, laying down three rules, which will be better 
understood when their sequence is altered, the second being 
taken first, (i) Ordinary wardship. The reason for claim- 
ing wardship from lands held in chivalry, namely, that a 

^See Ashford v. Thornton, i B. and Ald.^ 405-461. 

^See 59 George III. c. 46. 

' Pollock and Maitland, I. 304, read *■'■ parva " as an untechnical word. Round, 
Serjeanties^ 35-6, finds in this chapter the origin of the distinction between '* grand " 
and "petty" serjeanties, and compares the distinction made in c. 14 between 
greater and lesser barons. 



368 MAGNA CARTA 

boy could not perform military service, did not apply to fee- 
farm, socage, or burgage. There was much looseness of 
usage, however; and of this John took advantage. The 
Charter stated the law explicitly; wardship was not due 
from any such holdings, except in the anomalous case where 
lands in fee-farm expressly owed military service.^ As 
petty serjeanties (although mentioned in the present chapter 
in a different connection) are not expressly said to share this 
exemption, it may be inferred that the barons admitted 
John's wardship over them, as over great serjeanties. By 
Littleton's time, the law had changed : petty serjeanties 
were then exempt.^ 

(2) Prerogative wardship. When the heir of a tenant-in- 
chivalry held military fiefs of different mesne lords, each of 
these lords enjoyed wardship over his own fief. This was 
fair to all parties : but, if the ward held one estate of the 
Crown, and another of a mesne lord, the King claimed 
wardship over both; and that, too, even when the Crown 
fief was of small value.^ Such rights were known as " pre- 
rogative wardship," and, thus limited, were in 12 15 perfectly 
legal, however inequitable they may now seem, (a) Fee- 
farm, socage, and burgage. John, however, pushed this 
right further, and exercised prerogative wardship over fiefs 
of mesne lords, not merely by occasion of Crown fiefs held 
in chivalry, but also by occasion of Crown fiefs held by any 
tenure. It was outrageous to claim prerogative wardship 
in respect of fee-farm, socage, or burgage lands, which were 
exempt even from ordinary wardship. John was made to 
promise amendment.^ (h) Small Serjeanties^ were in a 
different position. Magna Carta did not abolish the 
Crown's rights of ordinary wardship over these, but forbade 

*Cf. supra, pp. 55-7 and 6i-2. ^ II. viii. s. 158. 

'Cf. Glanvill, VII. c. 10. "When any one holds of the King in capite the 
wardship over him belongs exclusively to the King, whether the heir has any other 
lords or not ; because the King can have no equal, much less a superior. " Yet the 
King is not to have such wardship *' because of burgage." 

*Cf. Petition of Barons (1258), c. 2; Prro. of West. {1259), c. 12. Glanvill, 
VII. c. 10, had laid it down that burgage tenure could not give rise to prerogative 
wardship. 

' See supra, p. 56. 



CHAPTER THIRTY-SEVEN 369 

that this should form an excuse for prerogative wardship 
over the wider fiefs of other lords. ^ 

Prerogative wardship (even in the limited form admitted 
by Magna Carta) might involve a double hardship on the 
mesne lord. Suppose that the common tenant held lands 
from a mesne lord on condition of say, five knights' service, 
as well as his Crown fief. The King seized both fiefs on his 
death, nominally as a compensation for the loss of military 
service, which the minor heir could not render. Yet, when 
a scutage ran, the King demanded from the mesne lord 
payments in proportion to his full quota without allowing 
for the fees of five knights taken from him by prerogative 
wardship. This is no imaginary case : the barons in 1258 
complained of the practice and demanded redress.^ 



CHAPTER THIRTY-EIGHT. 

NuLLUS ballivus ponat de cetero aliquem ad legem simplici 
loquela sua, sine testibus fidelibus ad hoc inductis. 

^ See Bracton, folio 87b. The Note-booh,, case 743, contains a good illustration. 
The motive for these restrictions was to prevent injustice to mesne lords. It was 
probably, however, an indirect consequence of Magna Carta that a similar rule 
came to be applied where no mesne lord was injuriously affected. In 1 231 a certain 
Ralf of Bradeley died, who had held two separate freeholds of the Crown, (i) a 
small fee by petty serjeanty of twenty arrows a year, and (ii) land of considerable 
value held in socage. The Crown took possession of both estates, on the assump- 
tion that wardship over the petty serjeanty brought with it a right of wardship over 
the socage lands also (although these would have been exempt if they had stood 
alone). The King sold his rights for 300 marks. Ralf's widow claimed the ward- 
ship of the socage lands, on the ground that these were of much greater value than 
those held by serjeanty. Her argument was upheld, and the 300 marks refunded 
to the disappointed purchaser. See Pipe Roll, 5 Henry III., cited Madox, I. 
325-6. 

^ See Petition of the Barons, Article 2 {Select Charters, 383). C. 53 of Magna 
Carta reverts to prerogative wardship, granting redress, although not summary 
redress, where John, or his father or brother, had illegally extended it by occasion 
of socage, etc. See also supra, p. 368. Round, Eng. Hist. Rev., XXVIII. 156, 
cites from Cal. lug. post mortem. III. 406-7, an interesting case of prerogative 
wardship decided against the Crown in 1301. Orpen, Ireland, II. 234, cites two 
Charters in which John renounces prerogative wardship. C. 43 infra (amended by 
c. 38 of 1217) guards against another abuse of prerogative wardship. 

2 A 



370 MAGNA CARTA 

No bailiff for the future shall, upon his own unsupported 
complaint, put anyone to his " law," without credible witnesses 
brought for this purpose. 

The exact nature of the abuse here condemned has been 
much discussed by commentators. Bailiffs (the word is 
probably used here in its widest sense i) were wont to abuse 
their authority : henceforth they shall put no man to his 
" lex " on their own initiative. The word lex, in its 
technical sense, applied to any form of judicial test, 
such as compurgation, ordeal, or combat, the precise 
meaning required in each particular case being determined 
by the context.^ In the present chapter it seems to have 
this technical meaning of a judicial " proof " or " trial " of 
any sort:^ henceforward no bailiff should have power 
" simplici loquela sua " ^ to put anyone to a " lex" of any 
kind. Authorities differ as to the exact nature of the 
irregularities which this clause was meant to suppress. 

I. Medieval Interpretations, Ignorance of the exact 

* Cf. supra, c. 24. It possibly includes sheriffs and their officers. The same 
men, apparently, were described as King's Serjeants and sheriff's Serjeants ; one 
Roll records fines for a man buried '''■sine visu servientum vicecomitis,^'' and for a 
robber hanged " sine visu servientis regis'''' {Pipe Roll, 31 Henry II). The word 
may also include the stewards who presided in manorial courts. If so, the un- 
qualified " ballivus " of this passage should, perhaps, be contrasted with the ^^noster 
ballivus^^ of cc. 28 and 30. Coke, Second Institute, 44, following the doubtful 
Mirror of Justices, extends it to all King's justices and ministers. 

*Dr. Stubbs {Const, Hist., I. 576) translates *'/^jt" in this passage by "com- 
purgation or ordeal." Pollock and Maitland (II. 604 n.) explain that the word 
*'does not necessarily point to unilateral ordeal; it may well stand for trial by 
battle." Thayer {Evidence, 199-200) extends it to embrace judicially appointed 
tests of every kind — battle, ordeal of fire or water, simple oath, oath with com- 
purgators, charter, transaction witnesses, or sworn verdict. Bigelow {Placita 
Anglo- Normanica, 44) cites from Domesday Book cases where litigants offered 
proof omni lege or omnibus legibus, that is, in any way the court decided. Some- 
times lex had a more restricted meaning ; in the Customs of Newcastle-on-Tyne 
{Select Charters, 112) it seems to mean compurgation as opposed to combat. For 
its various meanings see also Harcourt, Steward, 232. 

^In c. 55 **/!?j:" would seem to bear a meaning more akin to the broader con- 
ception of "law" in modern jurisprudence; while in c. 39 its denotation is 
subject of controversy. 

*Cf. the phrases ^^ per simplex vcrbtim smim'' (Ford wick) and '•'■per vocetii 
suam simplice?n" (Hereford) in Bateson, Borottgh Customs, I. 181. Cf. ibid., IL 
xxxii. 



CHAPTER THIRTY-EIGHT 371 

nature of the abuse prohibited may well be excused at the 
present day, since it had become obscure within a century 
of the granting of the Charter. Some legal notes of the 
early fourteenth century, containing three alternative sug- 
gestions, have come down to us.^ 

(i) The first interpretation discussed, and apparently 
dismissed, in these notes, was that Magna Carta by this 
prohibition wished to ensure that no one should serve on a 
jury {in juratam) unless he had been warned by a timely 
summons. This far-fetched suggestion is clearly erroneous. 

(2) The next hypothesis raised is that the clause prevented 
the defendant on a writ of debt (or any similar writ) from 
winning his case by his unsupported oath, where compur- 
gators ought to have sworn along with him. Exception 
was, in this view, taken to the bailiff treating favoured 
defendants in civil pleas with unfair leniency. 

(3) A third opinion is stated and eulogized as a better 
one, namely, that the Charter prohibited bailiffs from show- 
ing undue favour to plaintiffs in civil pleas. The defendant 
on a writ of debt (or the like) should not, in this interpreta- 
tion of Magna Carta, be compelled to go to proof at all (that 
is, to make his " law ") unless the plaintiff had brought 
" suit " against him (that is, had raised a presumption that 
the claim was good, by production of preliminary witnesses 
or by some recognized equivalent). 2 

II. Modern Interpretations. If the chapter is read in a 
broad sense as prohibiting abuses of a generic kind, it is 
possible that more than one of its modern exponents may 
be substantially correct, in spite of apparent contradictions, 
(i) One theory would read the clause as forbidding magis- 
trates to show undue favour to defendants of certain classes. 
Crown officials, under John, it is pointed out, favoured 
Jews against Christians with whom they went to law. The 

* These appear as an Appendix to the Year Book of 32-3 Edward I. (p. 516) ; 
but the handwriting is supposed to be of the reign of Edward II. 

^Cf. supruy p. 83. The necessity for such "suit" was not legally abolished 
until 1852 (by Statute 15 and 16 Victoria, c. 76, s. 55). In 1343 it had been 
decided that the " suit" must be in existence, but need not be produced in court ; 
and that if they did appear they could not be examined. See Thayer, Evidencey 
13-15- 



372 MAGNA CARTA 

Hebrew defendant in a civil suit " might purge himself by 
his bare oath on the Pentateuch, whereas in a similar case a 
Christian, as the law then stood, might be required to wage 
his law twelve-handed — i.e. with eleven compurgators." ^ 
Magna Carta, it has been suggested, struck at this pre- 
ferential treatment of Jewish litigants, trebly hated as aliens, 
capitalists, and rejectors of Christ. If so, the attempt 
failed; for in 1275 a certain Hebrew, named Abraham, was 
allowed " to make his law single-handed on his Book of the 
Jewish Law " in face of the plaintiff's protest that this was 
contrary to the custom of the realm. ^ 

(2) On the other hand, the clause is sometimes made to 
prohibit undue favour shown to demandants in civil suits to 
the prejudice of defendants. A " suit " of witnesses (secta- 
tores) had to be produced in court by the plaintiff before 
any " trial " (lex) could take place at all. Bailiffs were 
forbidden to allow, through slackness, favour, or bribery, 
this rule to be relaxed. This interpretation, which was 
adopted by the author of the Mirror of Justices, and by the 
writer of the notes appended to the Year Book already cited, 
found favour with Chief Justice Holt in 1700.^ 

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

^See Rigg's Sel. Pleas Jezvish Exch.^ xii., and cf. sttpra, c. 10. 

2 Rigg, ibid., 89, where the case is cited. 

3 See City of London v. Wood (12 Modern Reports, 669). Holt held the clause 
of Magna Carta to mean that the plaintiff, unless he had witnesses, could not put 
a defendant to his oath. Pollock and Maitland, II. 604, seem to concur, to the 
extent at least of counting this as one of the abuses condemned by c. 38 : * * The 
rule %hich required a suit of witnesses had been regarded as a valuable rule ; in 
12 1 5 the barons demanded that no exception to it should be allowed in favour of 
royal officers." 

*See his Schwurgerichte^ 199-200. Cf. ibid., 178 and 409-74. For a similar 
practice in Galloway, see G. Neilson on **Surdit de Sergaunt," Scot. Antiq., XI. 



CHAPTER THIRTY-EIGHT 373 

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

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

To the criminal aspect of the matter, the Assize of 
Clarendon (1166) seems to supply the key. Article 4 
of that ordinance prescribes the procedure for try- 
ing robbers, thieves, and murderers : " the sheriff shall 
bring them before the justices; and with them they shall 
bring two law-worthy men of the hundred and of the village 
where they were apprehended, to bear the record of the 
county and of the hundred, as to why they had been appre- 
hended ; and, there, before the justices they shall make their 
law." This "law" is elsewhere in the ordinance clearly 

155. The Leges Quatuor BurgoT^m would seem to guard against an evil of an 
opposite kind when (c. 76) they forbid the provost or bedells of a town ^prepositus 
vel precones) to "bring witnesses to a claim against anyone," but direct that the 
defendant shall acquit himself pei' legetti. This peculiar law would seem to be 
entirely unknown to previous commentators on this difficult passage of Magna 
Carta. 

^ This reading is supported by Pollock and Maitland, I. 130 n. There is no 
necessary inconsistency between the view here cited, and that already cited from 
ibid., II. 604. The same clause of Magna Carta may have been aimed at 
irregularities of two kinds, in civil and criminal pleas respectively. 



374 MAGNA CARTA 

identified with ordeal ; ^ and the purport of the whole was 
that accused men could not be put to ordeal except in 
presence of two lawful men who had been present at the 
indictment and had come before the justices specially to 
bear witness thereof. In other words, the sheriff's own 
report of the indictment " sine testihiis fidelibus ad hoc 
inductis " was not sufficient. The " county " and the 
" hundred " which had heard the prisoner accused, must 
send representatives to bear record of the facts.^ 

The ordeal was a solemn affair, and every precaution 
must be taken against its abuse. Sheriffs or other royal 
bailiffs must be present, as well as members of the accusing 
jury. Lords of feudal courts, claiming this franchise, 
required apparently royal warrant for its exercise.^ Prac- 
tice, however, was loose : the King's justices would seem to 
have had a right to put suspects to the ordeal ex officio 
without the intervention of the accusing jury :* sheriffs and 
others, with the Crown's approval or connivance, exercised 
a similar privilege. In condemning these practices. Magna 
Carta would appear to have been, to some extent, modifying 
previous usage. ^ It was not enough thereafter that indict- 
ment should precede ordeal ; members of the presenting 
jury, who had made the accusation at the first diet, must 
accompany the sheriff before the justices at the final diet, 
there to bear testimony both as to the nature of the crime 
and as to the fact of the indictment. Before anyone could 

■• See Article 12 where ** eat ad aquam " is contrasted with *' non habeat legem " 
of Article 13 {Select Charters^ 144). 

*The ^^ ad portandum recordationem comitatus et hundredV of the ordinance is 
exactly opposed to the *' simplex loquela sua'''' of the Charter. 

2 Thus in 1 166 (the year of the Assize of Clarendon) the *' Soca " of Alverton was 
amerced because of a man placed ^^ ad aquam sine servient e''^ {Pipe Roll, 12 
Henry II., p. 49). In 11 85 the '^villata" of Preston paid 5 marks for putting a 
man ^^ ad aquam sine waranto'''' {Pipe Roll, 31 Henry II., cited Madox, I. 547). 
In the same year a certain Roger owed half a mark for being present at an ordeal 
'■^ sine visu servientum regis'''' : and heavy fines were exacted from those who had 
put a man ** injuste ad aquajn " {ibid.). 

<See Miss Bateson, Eng, Hist. Rev., XVII. 712. 

^Miss Bateson {Borough Customs, II. xxxi.) speaks of the "right of accusation 
' ex officio ' which belonged to the King's officers until Magna Carta, Art. 38, 
deprived them of it. " 



CHAPTER THIRTY-EIGHT 375 

be put "to his law," the sheriff's formal report must be 
corroborated by the testimony of representative jurors. 

The Charter of 1216 repeated this provision without 
alteration. In 121 7 a change occurred, which was un- 
doubtedly a consequence of the virtual abolition of the 
ordeal by the Lateran Council in 12 15. The framers of 
Henry's second reissue found leisure to adjust points of 
administrative detail. The simple reference to ordeal was 
inappropriate now that new forms of trial were taking its 
place. The justices, indeed, scarcely knew what test to 
substitute for ordeal. They seem sometimes to have 
resorted to compurgation and sometimes to battle; but the 
sworn verdict of neighbours was fast occupying the ground 
left vacant. The Charter of 12 17, then, made it clear that 
the provisions applied in 1215 to ordeal were to be extended 
to other tests. The " ad legem " of John's Charter became 
in the new version " ad legem manifestam. nee ad juramen- 
tum." A " manifest law " might well mean either ordeal 
or any other actual physical test such as "battle," ^ while 
^* juramentum " points to the sworn testimony of the jury, 
which was slowly taking the place of the discredited ordeal. ^ 



CHAPTER THIRTY-NINE. 

NuLLUS liber homo capiatur vel imprisonetur, aut dis- 
seisiatur, aut utlagetur, aut exuletur, aut aliquo modo 
destruatur, nee super eum ibimus, nee super eum mittemus, 
nisi per legale judicium parium suorum vel per legem terre. 

No freeman shall be taken or [and] imprisoned or disseised 
or exiled or in any way destroyed, nor will we go upon him nor 
send upon him, except by the lawful judgment of his peers or 
[and] by the law of the land.^ ^' •-^^-.-^--■•■'.-^ -•.:.,,.., ^ 

^ See Thayer, Evidence^ 37 n., for a case of 1291, where ^* ad legem manifeslatn " 
can only mean trial by combat. Cf. legem apparentem purgandtts est in Glanvill, 
XIV. ff. 112-114. 

2 Westminster I. (c. 12) described men refusing to put themselves on a jury's 
ve.-cict, ^^ come ceaus qui refusent la commtcne ley de la terre.^^ 

3 The usual English rendering has here been followed : Mr. Harcourt (Steward, 
219) was possibly right in holding that " interpretation under the guise of translation 



376 MAGNA CARTA 

This chapter occupies a prominent place in law-books, 
and is of considerable importance, although its value has 
sometimes been exaggerated.^ 

I. Its Main Object, It has been usual to read it as a 
guarantee of trial by jury to all Englishmen ; as absolutely 
prohibiting arbitrary commitment ; and as solemnly under- 
taking to dispense to all and sundry an equal justice, full, 
free, and speedy .^ The traditional interpretation has thus 
made it, in the widest terms, a promise of law and liberty 
and good government to every one.^^ A careful analysis of 
the clause, read in connection with its historical genesis, 
suggests the need for modification of this view. It was in 
accord with the practical genius of the Charter that it should 
here direct its energies, not to the enunciation of vague 
platitudes, but to the reform of a specific abuse. Its object 
was to prohibit John from resorting to what is sometimes 
whimsically known in Scotland as " Jeddart justice."^ It 

is in this ease an inevitable snare." ' This does not, however, absolve the com- 
mentator from explaining the text. The Articles of the Barons (29) add "z'z" 
{^^ nee rex eat vel niittat super eum vV suggesting the fuller contemporary '''■per 
vim et anna "). This shows the inadequacy of the translation contained in the 
Statutes at Large^ *'nor will we pass upon him nor condemn him." The Statutes 
of the Reahn, I. 117, suggest "deal with him" as an alternative. Coke, as 
explained infra, originated the error which thus connected " going " and " sending " 
with legal process. 

*For a valuable discussion of alternative interpretations, see Adams, Origin, 
256-274 ; also Pike, House of*Lords, c. X. Mr. Harcourt's learned 'discussions 
[Steward, cc. VII. and VIII.) are worthy of careful study, though they are more 
useful in suggesting difficulties than in finding solutions. • 

2 See, e.g. Coke, Second Institute, 55. * 

. ^Thus Blackstone, Commentaries, IV. 424 : "It protected every individual of 
the nation in the free enjoyment of his life, his liberty, and his property, unless 
declared to be 'forfeited by the judgment of his peers or the law of the land." 
Hallam, Middle Ages, II. 448, speaking of cc. 39 and -'40 together, says they 
"protect the personal liberty and property of all freemen by giving- ^security from 
arbitrary imprisonment and arbitrary spoliation." Creasy, Eng. Const., p. 151 n. : 
"The ultimate effect of this chapter was to give and to guarantee full protection 
for person and property to every human being that breathes English air." 

* The same grim tradition applied to Lidford as to Jedburgh : 
"I oft have heard of Lydford law. 
How in the morn they hang and draw, 
And sit in judgment after." 
See Neilson, Trial by Combat, 131, and authorities there cited. 



CHAPTER THIRTY-NINE 377 

forbade him for the future to place execution before 
judgment. Three aspects of this prohibition may be 
emphasized. 

(i) Judgment must precede execution. In some cases 
John proceeded, or threatened to proceed, by force of arms 
against recalcitrants as though assured of their guilt, with- 
out waiting for legal procedure. ^ Complaint was made of 
arrests and imprisonments suffered " without judgment " 
(absque judicio) ; and these are the very words of the 
" unknown charter " — " Concedit Rex Johannes quod non 
capiet homines absque judicio.""^ The Articles of the 
Barons and Magna Carta expand this phrase. Absque 
judicio becomes nisi per legale judicium parium suorum vel 
per legem terrae, thus guarding, not merely against execu- 
tion without judgment, but also against John's subtler 
device for attacking his enemies by a travesty of judicial 
process. The Charter asks not only for a J^J udgmenf^^ U^if 
for a " judgment of pee rs " and " according to the law of the 
land." Two species of irregularities were condemned by 
these words ; and these will be explained in the two follow- 
ing subsections. 

(2) Per judicium parium : every judgment must be 
delivered^bytke accused man's "equals."^ The need for 
" a judgment of peers " was recognized at an early date in-r 
England.^ It was not originally a class privilege of the 
aristocracy, but a right shared by all grades of free-holders ; 

^Mr. Bigelovv considers that such cases were numerous. S&q Procedm-e, 155: 
"The practice of granting writs of execution without trial in the courts appears to 
have been common." 

^See Appendix.^ 

^ Mr. Harcourt [Steward, 218 ff. ) has much to say on this phrase : for him a man's 
"peers" need not be his equals in rank (p. 220) ; while "judgment" is a vague 
word embracing widely opposed procedures : e.g. (p. 248), " In common parlance 
of the time a resolution of the King in Council to make war on a subject was a 
judicmm.^' He further instances, as examples of legal processes accepted in 121 5 
as equivalent to "judgment," the procedure for Crown debts under c. 9 ; outlawry 
under c. 42 ; the petty assizes under c. 19 ; and the special procedure in cc, 52, 56 
and 59 (see ibid., 220-3). Mr. Harcourt's conclusions are not clearly formulated, 
and some of them appear to be not well founded.' 

*The earliest known reference occurs in the Leges Henrici (c. 31) : Umisquisque 
per fares suos judicandzcs est et ejitsdem provinciae. 



378 MAGNA CARTA 

whatever their rank, they could not be tried by their 
inferiors.^ In this respect English custom did not differ 
from the procedure prescribed by feudal usage on the Con- 
tinent of Europe.^ Two applications of this general prin- 
ciple had, however, special interest for the framers of Magna 
Carta : the " peers " of a Crown tenant were his fellow 
Crown tenants, who would normally deliver judgment in 
the Curia Regis; while the "peers" of the tenant of a 
mesne lord were the other suitors of the Court Baron of the 
manor; In either case, judgments were given per pares 
curiae. John, resorting wholesale to practices used spar- 
ingly in earlier reigns, had set these rules at defiance. His 
political and personal^ enemies were e^dledv o^ deprived of 
j! their estates^by^ the judgment -M._a._tr^^ composed 

l^entirely of Crown nominees. Magna Carta promised a 
-—-return to the ancient practice. 

The varied meanings conveyed by the word " peers " to 
a medieval mind, together with the nature of judicium 
parium, may be further illustrated by the special rules 
applicable to four exceptional classes of individuals : — (a) 
Jews of England and Normandy enjoyed under John's 
Charter of loth April, 1201, the right to be judged by men 
of their own race ; for them a judicium parium was a judg- 
ment of Jews.^ (h) A foreign merchant, by later statutes, 
obtained the right to a jury of the " half tongue " (de medie- 
tate linguae), composed partly of aliens of his own country.^ 
(c) The peers of a Welshman seem, in some disputes with 
the Crown, to have been men drawn from the marches : 
such at least is the plausible interpretation of the phrase " in 

^Cf. Pollock and Maitland, I. 152. As there was no "peerage" in England 
(cf. su/>ra, p. 186) until long after John's reign, it is obvious that the judumm 
paritwi of Magna Carta must be interpreted in a broader sense than any mere 
** privilege of a peer " at the present day. Freeholders holding of the same mesne 
lord were '* peers of a tenure." 

2 See Stubbs, Const. Hist.^ I. 578 n., for foreign examples oi judicium parium. 

3 " If a Christian bring a complaint against a Jew, let it be adjudged by his 
peers of the Jews." See Rot. Chartarnm, p. 93, and stipj'a, p. 227 n. Harcourt, 
however {ibid., 228), trax\s\Q.ies pares Judei as "justices or custodes of the Jews." 

* See Carta Mercatoria, c. 8 ; 27 Edward III. stat. 2, c. 8 ; and 28 Edward III. 
c. 13 ; also Thayer, Evidence, p. 94. 



CHAPTER THIRTY-NINE 379 

Tnarchia per judicium parium suorurn," occurring in later 
chapters of Magna Carta, and granting to the Welsh redress 
of wrongful disseisins. ^ (d) A Lord ]\Iarcher occupied a 
peculiar position, enjoying rights denied to barons whose 
estates lay in more settled parts of England. In 1281 the 
Earl of Gloucester, accused by Edward I. of a breach of 
allegiance, claimed to be judged, not by the whole body of 
Crown tenants, but by such as were, like himself, lords 
marchers.^ These illustrations show that a " trial by peers " 
had a wider and less stereotyped meaning in the Middle 
Ages than it has at the present day.^ 

(3) Per legem terrae. No freeman could be punished 
except " in accordance with the law of the land." The 
precise meaning of these often-quoted words ought, per- 
haps, still to be regarded as an open question. Two mean- 
ings are possible : one, narrow and technical ; the other, of 
a loose and popular bearing. The more technical has 
already been explained.^ Thus interpreted, the words of 
John's Charter promised a threefold security to all the free- 
men of England. Their persons and property were pro- 
tected from the King's arbitrary will by the rule that 
execution should be preceded by a judgment — by a judg- 
ment ot peers^by aTjudgment according to the appropriate 
time-honoured "lest," battle, compurgation, or ordeal.^ 

^ See infra, cc. 56, 57, and 58. Under c. 59 the barons of England were called 
peers of the King of Scots. 

^ See Placitortim Abbrevatio, p. 201, cited Pollock and Maitland, I. 393 n. 

'See also a passage in the Scots Acts of Parliament (I. 318) attributed to 
David : "No man shall be judged by his inferior who is not his peer; the earl 
shall be judged by the earl, the baron by the baron, the vavassor by the vavassor, 
the burgess by the burgess ; but an inferior may be judged l:>y a superior." 

*See supra, p. 84, and cc. 18, 36, and 38. 

^See Thayer, Evidence, 200-1, for a discussion of the phrase '■'■lex terrae^ See 
also Bigelow, History of Procedure, 155 n. : "The expression ^ per legem terrae^ 
simply required judicial proceedings, according to the nature of the case ; the 
duel, ordeal, or compurgation, in criminal cases ; the duel, witnesses, charters, or 
recognition in property cases." The words occur at least twice in Glanvill, each 
time apparently with the technical meaning. In II. c. 19, the penalty for a false 
verdict includes forfeiture by jurors of their law {^^ legem terrae ajuittentes") ; 
while in V. c. 5, a man born a villein, though freed by his lord, cannot, to the 
prejudice of any stranger, wage his law {'^ ad aliquam legem terrae faciendam "). 
The stress placed on the accused's right to the time-honoured forms of lex is well 



38o MAGNA CARTA 

Much weight, however, must be allowed to the arguments 
of those who contend for interpreting '" lex terrae " more in 
accordance with the vague and somewhat meaningless " law 
of the land " of popular speech at the present day. The 
phrase, they argue, was not confined to methods of pro- 
cedure, but referred to the entire tone and substance of the 
law.i Advocates of both theories can point to other parts 
of Magna Carta where " lex " is used in the sense they claim 
for it in the present passage; for its purport was, in 12 15, 
ambiguous. In chapters 18, 36, and 38, it refers primarily 
to procedure, whereas chapters 9, 45, 52, 56, and 59 suggest 
a broader interpretation. 

Magna Carta is undoubtedly a loosely drawn document, 
and it is always possible that both meanings were in the 
minds of the framers. If so, the older, more technical 
signification was gradually forgotten, and " the law of the 
land " became the vague and somewhat meaningless phrase 
of the popular speech of to-day. It was only natural that 
this change of emphasis should be reflected in subsequent 
statutes reaffirming, expanding, or explaining Magna 
Carta. An important series of these, passed in the reigns 
of Edward III. and Richard II., shows how the per legem 
terrae of 12 15 was read in the fourteenth century as equiva- 
lent to " by due process of law, " and how the Great Charter 
was interpreted as prohibiting the trial of men for their lives 
and limbs before the King's Council on mere informal and 
irresponsible suggestions, sometimes made loosely or from 
malicious and interested motives. ^ 

illustrated by the difficulty of substituting jury trial for ordeal. It has already 
been shown that the right of "standing mute," that is, virtually, of demanding 
ordeal, was only abolished in 1772. See supra, p. 342. Five and a half centuries 
were thus allowed to pass before the criminal law was bold enough, in defiance of 
a fundamental principle of Magna Carta, to deprive accused men of their "law." 

^Mr. Harcourt {Steward, 220 ff.) has vehemently, and Prof. Adams {Origin, 
2.(i(> ff.) judicially and moderately, maintained this view. Mr. Adams is influenced 
by his failure to discover any instance of '■^ per legem terrae " in the technical sense, 
but ^^ per legem Angliae " occurs in Set. Civil Pleas (Selden Society), No. 104, 
where the reference is to ordeal of water. 

2 It would seem, however, from the words of these statutes that for this purpose 
the provisions of chapters 36 and 38 were used to supplement those of the present 
chapter, if they were not confused with them. See 5 Edward III. c. 9 ; 25 



I 



CHAPTER THIRTY-NINE 381 

The Act of 1352, for example, after reciting this provision 
of Magna Carta, insisted on the " indictment or presentment 
of good and lawful people of the same neighbourhood where 
such deeds be done." Coke,i founding apparently on these 
fourteenth-century statutes, makes " per legem terrae *" 
equivalent to " by due process of law " and that again to 
"by indictment or presentment of good and lawful men," 
thus finding the grand jury enshrined in Magna Carta. 
The framers of the Petition of Right ^ read the same words 
as a prohibition, not only of imprisonment " without any 
cause showed " but also of proceedings under martial law, 
thus interpreting the aims of King John's opponents in the 
light of the misdeeds of King Charles. 

Anachronisms such as these must be avoided. What- 
ever may have been the exact grievances that bulked most 
largely in the barons' minds in 12 15, their main contention 
was obvious. John was no longer to take the law into his 
own hands : the deliberate judgment of a competent court 
of law must precede any punitive measures to be taken by 
the King against freemen of his realm. 

(4) The meaning of " vel." The peculiar use of the word 
" vel " introduced an unfortunate element of ambiguity. 
No proceedings were to take place " without lawful judg- 
ment of peers or by the law of the land " — " or " thus 
occurring where " and " might naturally be expected. 
Authorities on medieval Latin are agreed, however, that 
" vel " is sometimes equivalent to et.^ Comparison with the 

Edward III. stat. 5, c. 4 ; 37 Edward III. c. 18; 38 Edward III. c. 3 ; 42 
Edward III. c. 3 ; 17 Richard II. c. 6. See also Stubbs, Const. Hist., II. 637-9, 
for the series of petitions beginning with 1351. 

^ Second Institttte, p. 46, 2 ^ Charles I. c. I. 

^ Pollock and Maitland, I. I52n., read the word as having both meanings in this 
passage. Cf. Gneist, Engl. Const., chapter xviii. Mr. Pike, Hotise of Lords, 
170, takes a different view : "King John bound himself in such a manner as to 
show that judgment of peers was one thing, the law of the land another. The 
judgment of peers was ... a very simple matter and well understood at the time. 
The law of the land included all legal proceedings, civil or criminal, other than 
the judgment of peers." The present writer rejects this antithesis, because the 
two things may be, and indeed must be, combined. The "trial" by a law and 
the "judgment" by equals were complementary of each other. The peers 



382 MAGNA CARTA 

terms of chapter 52 and with those of the corresponding 
Article of the Barons places the matter almost beyond 
doubt. The 25th of the Articles of the Barons had provided 
that all men disseised by Henry or Richard should " have 
right without delay by judgment of their peers in the king's 
court," giving no hint of any possible alternative to. 
judicium parium. Chapter 52 of the Charter, in supple- 
menting the present chapter, describes the evils complained 
of in both chapters as acts of disseisin or outlawry by the 
King " sine legale judicio parium suorum," leaving no room 
for ambiguity. 

II. The Scope of the Protection afforded. The object of 
the barons was to protect themselves and their friends 
against the King, not to set forth a scientific system of 
jjlisprudence : the judicium parium was interposed as a 
barrier against measures instituted by the King, not 
against appeals of private individuals. Pleas following 
upon accusations by the injured party were held in 147 1 
not to fall within the words of Magna Carta. ^ This was a 
serious limitation ; but as against the Crown the scope of 
the protection afforded by the Great Charter was very wide 
indeed. Care was taken that the three-fold safeguard 
should cover every form of abuse likely to be practised by 
John.2 

(i) Capiatur velimprisonetur. These words are followed 
in the text by a string of other verbs, each of which is 
introduced by " aut" (" aut disseisiatur/' etc.). The con- 
trast between " vel " and " aut " strengthens the suggestion 
that " vel " is used in this chapter conjunctively. The mean- 
ing would then be that no one could be arrested and 
imprisoned (that is, no one could be detained as a prisoner) 
without trial. If " vel,*' on the other hand, were to be read 
disjunctively while the two words it connects were literally 

appointed the test and decided whether it had been properly fulfilled. See also, 
on opposite sides, Harcourt, Steward^ 219 ff., and Adams, OHgin^ 262. 

^See, e.f;. Pike, House of Lords, 217, citing Littleton in Year Booh, Easter, 
10 Edward IV., No. 17, fo. 6. 

2 This chapter applied only to abuses of criminal process : cf. c. 21 for amerce- 
ments and civil process. 



CHAPTER THIRTY-NINE 383 

interpreted and enforced, orderly government would be at 
an end.^ Arrest normally precedes judgment, although 
judgment must precede permanent imprisonment following 
on arrest. 

(2) Aut disseisiatur. Avarice was a frequent motive of 
John's oppressions : the machinery of justice was an engine 
for transferring land and money to his treasury. Crown- 
tenants frequently found their estates appropriated by the 
Crown as escheats. That this was a grievance to which the 
barons attached supreme importance is shown in many 
ways : by the care taken in the 25th Article of the Barons 
and in chapter 52 of the Charter to provide procedure for 
restoring " disseised " ^ estates, and by the terms of writs 
issued by John after the treaty at Runnymede, for the 
immediate restoration of " lands, castles, and franchises 
from which we have caused any one to be disseised injuste 
et sine judicio," ^ 

Later versions of Magna Carta (beginning with that of 
12 1 7) are careful to define the objects to be protected from 
disseisin : " free tenements, franchises, and free customs." ^ 
(a) Liherum tenementum. " Free " tenements w'ere free- 
holds as opposed to the villenagiutn that passed into the 
modern copyhold. None of the possessions thus protected 
were more highly valued by the barons than their feudal 
strongholds.^ Castles claimed by great lords as their own 
property are mentioned in many writs of the period, while 
chapter 52 of Magna Carta gives them a prominent place 

1 The wording of the 29th Article of the Barons, if not merely due to careless 
draftsmanship, seems, however, against this conjunctive interpretation. Cf. Adams, 
Origin, 262. 

2 For this word cf. supra, c. 18. 

' See I\of. Clans., I. 215. Mr. Pike {House of Lords, p. 170) maintains, indeed, 
that the prevention of disseisins ^* sine judicio'''' was the chief, if not the sole, 
object of the chapter under discussion: "The judgment of peers had reference 
chiefly to the right of landholders to their lands, or to some matters connected 
with feudal tenure and its incidents." This goes too far : the barons by no means 
confined the safeguard afiforded by the judicium parium to questions of land. 
Pollock and Maitland, I. 393, countenance a broader interpretation. 

* De libero teneinento suo vel libertatibus vel liberis consuetudinibus suis. 

^Cf. supra, p. 151. 



384 MAGNA CARTA 

among the " disseisins " to be restored, (b) " Lihertates " 
covered feudal jurisdictions, immunities, and privileges of 
various sorts, of too intangible a nature to be appropriately 
described as " holdings." (c) Consuetudines had two 
meanings, a broad general one and a narrower financial 
one.^ As the Charter of 12 17 uses a proprietary pronoun 
(no freeman shall be disseised of his free customs), it pro- 
bably refers to such rights as those of levying tolls and 
tallages. These vested interests were of the nature of 
monopolies; and Coke, in treating this passage as a text 
on which to preach the doctrine that monopolies have always 
been illegal in England, aims wide of his mark. Com- 
menting on the words "de libertatihus," he declares that 
generally all monopolies are against this Great Charter, 
because they are against the liberty and freedom of the 
subject and against the law of the land." ^ In this error he 
has been assiduously followed.^ 

(3) Aut utlagetur, aid exuletur, aut aliquo rnodo 
destruatur. The declaration of outlawry, which could only 
be made in the county court, was a necessary preliminary 
to the forfeiture of the outlaw's lands and goods. Tine 
expedient recommended itself peculiarly to John's genius; 
it was his policy to terrify those with whom he had quar- 
relled, until they fled the country ; to summon them three 
times before the county court, knowing that they dared not 
face his corrupt and servile officers; and finally to have 
them formally outlawed and their property seized. Such 
had been the fate of Robert Fitz Walter and Eustace de 
Vesci, in the autumn of 1212."* The outlawed man was 
outside the pale of society; anyone might slay him at 
pleasure; in the grim phrase of the day, he bore " a wolf's 
head " (caput lupinum), and might be hun^Blike a noxious 
beast. A reward of two marks was offerea for each out- 
law's head brought to Westminster. This sum was paid 

^ Cf. suj>ra, p. 246. 2 Second Instihite, p. 47. 

'See, e.g. Creasy, Hist, of Const. ^ p. 151 n. : ** Monopolies in general are 
against the enactments of the Great Charter." See also Taswell-Langmead, Eng. 
Const. Hist., 108. 

* See supra, p. 25. 



CHAPTER THIRTY-NINE 385 

in 1 196 for the head of WilHam of Elleford.^ The word 
" exiled " explains itself ; and commentators have very pro- 
perly noted the care taken to widen the scope of the clause by 
the use of the words " or in any other way destroyed." ^ 

(4) " Nee super eum ibimus, nee super eum mittemus," 
These words have been frequently misinterpreted. Read in 
the light of historical incidents of the immediately preceding 
years, they leave no room for ambiguity. Their object was 
to prevent John from substituting violence for legal pro- 
cess : he must never again attack per vim et arma men 
unjudged and uncondemned. 

The meaning is plain. Yet Coke, following his vicious 
method of assuming the existence, in Magna Carta, of a 
warrant for every legal principle of his own day, misled 
generations of commentators. He maintained that John 
promised to refrain from raising, in his own courts, actions 
in which he was personally interested. In elaborating this 
error, he drew a distinction between the court of King's 
Bench, otherwise known as coram rege, because the King 
was in theory present, and other courts to which he had 
" sent " a writ delegating authority. Ibimus, he seems to 
think, applied in the former case; mittemus in the latter. 
To quote his words, " No man shall be condemned at the 
King's suit, either before the King in his bench, where the 
pleas are coram rege (and so are the words, nee super eum 
ibimus, to be understood) nor before any other commis- 
sioner, or judge whatsoever (and so are the words, nee super 
eum mittemus, to be understood), but by the judgment of 
his peers, that is, equals, or according to the law of the 
land."^ Coke is in error; it was the use of brute force. 



1 See Pi'/'e Rolls, ^Mris^rd I., cited by Madox, I. 20i. 

^ E.g. Coke, Sec. Jv> » 48- For the early history of outlawry and exile, see 
Liebermann, Friedlosigkeit (Brunner-Festschrift), and Gesetze, II. 413 ; A. Reville, 
Abjuratio regni^ Revue Hist.y vol. 50 (1892). Harcourt {Steward, 221) charac- 
terises *^ destruatur^^ as a "colloquial expression" covering even amercements, 
if of excessive amounts. 

^ See Second Institute, p. 46. John Reeves, History of English Law, I. 249 
(third ed.), while condemning Coke, gives an even more strained interpretation of 
his own. Lingard, History of England, III. c. I, deserves praise as the first 
commentator who took the correct view. 

2B 



386 MAGNA CARTA 

not merely one particular form of legal process, which John 
in these words renounced. 

III. What Classes enjoyed the Protection of Judicium 
Parium ? No " f reernan " was to be molested in any of the 
ways specified; but how far in the social scale did this 
description descend? Coke claims villeins as free for 
purposes of this chapter and of chapter i, while rejecting: 
them for the purposes of chapter 20.^ Their right to the 
status of freeman has already been disallowed, and any 
possible ambiguity as to the present chapter is removed by 
the words of the revised version of 12 17. Chapter 35 of 
that reissue, with the object of making its meaning clearer, 
inserts after " disseisiatur " the words (already discussed) 
" de lihero tenemento suo vel lihertatihus vel liheris con- 
suetudinibus siiis," Mr. Prothero suggests that this addi- 
tion implies an advance on the privileges secured in 1215 : 
— " It is worth while to notice that the words in which 
these liberties are stated in § 35 of the Charter of 12 17 are 
considerably fuller and clearer than the corresponding 
declaration in the Charter of 12 15." ^ It is safer to infer that 
no change was here intended, but merely the removal of 
ambiguity. If there is a change, it is rather a contraction 
than an extension, making it clear that only " free " tene- 
ments are protected, and excluding the property of villeins 
and even villenagium belonging to freemen.^ It was made 
plain beyond reasonable doubt that no villein should have 
lot or part in rights hailed by generations of commentators 
as the national heritage of all Englishmen.^ 

IV. Reactionary Side of these Provisions. To insist 
that in all cases a judgment of feudal peers, either in King's 
Court or in Court Baron, should take the place of a judg- 
ment by the King's professional judges, was to reverse one 
of the outstanding features of the policy of Henry II. In 

^ Second Institutey pp. 4, 27, and 45. 

"^ Simon de Montfoi't, 17 n. Cf. Blackstone, Great Charter, xxxvii,, **the more 
ample provision against unlawful disseisins." 

3 Cf. Pollock and Maitland, I. 340 n. 

*Cf. supra, p. 118. Other verbal changes in the charter of 1217 show the same 
care to exclude the villeins. E.g. c. 16 leaves the King's demesne villeins strictly 
" in his mercy," that is, liable to amercement without any reservation. 



CHAPTER THIRTY-NINE 387 

this respect, the present chapter may be read in connection 
with chapter 34. The barons, indeed, were not strict 
logicians, and probably thought it prudent to claim more 
than they intended to enforce. Yet, a danger lurked in 
these provisions ; the clause was a reactionary one, tending-as-* 
to restore feudal privileges and feudal usage, inimical 
alike to the Crown and to the growth of popular liberties. ^ 
J John promised that feudal justice should be dispensed in ^xs^ 
'his feudal court; and, if this promise had been kept, the 
result would have been to check the development of the 
small committees destined to become at no distant date 
the Courts of King's Bench and Common Pleas, and to 
revive the fast-waning jurisdictions of the manorial courts 
on the one hand and of the commune concilium on the 
other.2 

V. Genesis of this Chapter, The interpretation here 
given is emphasized by comparison with certain earlier 
documents and events. The reigns of Richard and John 
furnish abundant examples of the abuses complained of. 
In 1 191, Prince John, as leader of the opposition against 
his brother's Chancellor, William Longchamp, concluded 
a treaty that protected himself and his allies from the very 
evils which John subsequently committed against his own 
barons. Longchamp conceded in Richard's name that 
bishops and abbots, earls, barons, " vavassors " and free- 
tenants, should not be disseised of lands and chattels at 
the will of the King's justices or ministers, but only by 
judgment of the King's court according to the lawful 
customs and assizes, or by the King's command.^ 

^ Mr. G. H. Blakesley, Law Quarterly Review^ V. 125, perhaps goes too far : 
" It may reasonably be suspected that cap. 39 also was directed merely to maintain 
the lord's court against Crown encroachments." 

2 Mr. Pike, House of Lords ^ i70-4» shares this view of the reactionary nature of 
the clause, although he considers that the claim \.o judicium paHuin by a Crown 
tenant might be satisfied by the presence of one or more barons among the judges 
of the *' Benches," and did not necessarily involve a full commune concilium. 
Ibid.^ p. 204. If the ''judgment " of the full court was requisite (and, in spite of 
the high authority of Mr. Pike, there is much to be said for that contention), then 
the reactionary feudal tendency is even more prominent. 

3 See R. Hoveden, III. 136. 



388 MAGNA CARTA 

Now, the main subject of the arbitration, ending in this 
treaty, was the custody of certain castles and estates. 
After the right to occupy each separate castle in dispute 
had been carefully determined, provision was then made, 
in the general words cited above, against this arrangement 
being disturbed without a judgment of the curia regis. 
Disseisin, and particularly disseisin of castles, was thus 
in 1 191, as in 1215, a topic of special prominence. 

Early in 12 13, the King had attempted to take vengeance 
upon his opponents in a manner they are not likely to have 
forgotten, two years later at Runnymede. John, resenting 
the attitude of the northern barons who had refused alike 
to accompany him to Poitou and to pay scutage, deter- 
mined to take the law into his own hands. Without 
summoning his opponents before a commune co^icilium, 
without even a trial and sentence by one of his Benches, 
he set out with an army to punish them. He had gone 
as far north as Northampton when, on 28th August, 12 13, 
Stephen Langton persuaded him to defer forcible proceed- 
ings until he had obtained a legal sentence in a formal 
Curia,^ That John again threatened recourse to violent 
methods may be inferred from the letter patent issued in 
May, 12 15, when both sides were armed for war. He 
proposed arbitration, and promised a truce until the arbitra- 
tors had given their award. The words of this promise 
are notable ; since, not only do they illustrate the procedure 
of August, 1 2 13, but they agree closely with the clause of 
Magna Carta under discussion. The words are : — " Know 
that we have conceded to our harons who are against us, 
that we shall not take or disseise them or their men, nor 
shall we go against them per vim y el per arma, unless by 
the law of our kingdom, or by the judgment of their peers 
in curia nostra."^ Magna Carta repeats this concession 
in more general terms, substituting " freemen " for the 
" barons " of the writ — an alteration which necessitated 
the omission from the Charter of the concluding words of 
the writ, " in curia nostra " ; because the peers of ordinary 

^ Cf. supra^ p. 29. 

2 The writ is dated loth May, 12 15, and appears in New Rymevt I. 128. 



CHAPTER THIRTY-NINE 389 

freemen would be found among the freeholders in the Court 
Baron. ^ 

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

(i) The baronial contention. The earls and barons, 
throughout the reign of John's unhappy son, attempted 
to place a broad interpretation on the privilege secured to 
them by this chapter — claiming that all pleas, civil and 
criminal (such at least as were raised against them at the 
instance of the Crown) should be tried by their fellow earls 
and barons, and not by professional judges of lower rank. 
William de Braose in 1208 had declared himself ready to 
satisfy John " secundum judicium curiae suae et baronum 
parium meorum," ^ 

(2) The royal contention. The Crown, on the other 
hand, while not openly infringing the Charter, tried to 
narrow its scope. Judges appointed to determine pleas 
coram rege, no matter what their original status might be, 
became (so the Crown argued) by such appointment, the 
peers of any baron or earl. This doctrine was enunciated 
in 1233 when Peter des Roches denounced Richard, Earl 
Marshal, as a traitor, in a meeting (colloquium) of crown- 
tenants held at Gloucester on 14th August of that year. 
Thereafter, " absque judicio curiae suae et parium suorumy" 
as Matthew Paris carefully relates,^ Henry treated Earl 
Richard and his friends as outlaws, and bestowed their 

1 Magna Carta also omits "/^r vim et anna.'''' 
^Cf. Harcourt, ibid., 235. ^ Ibid., 236. 

* M. Paris, II. 524. 5/^^^,^111.247-8. 



390 MAGNA CARTA 

lands on his own Poitevin favourites. An attempt was 
made, at a subsequent meeting held on 9th October, to 
have these proceedings reversed on the ground, already 
stated, that they had taken place absque judicio parium 
suorum. 

The sequel makes clear a point left vague in Matthew's 
narrative : there had been a judgment previous to the 
seizure, but only a judgment of Crown officials coram rege, 
not of earls and barons in commune concilium. The 
justiciar defended the action of the government by a 
striking argument : " there were no peers in England, such 
as were in the kingdom of France," and, therefore, John 
might employ his justices to condemn all ranks of traitors.^ 
Bishop Peter was here seeking to evade the provisions of 
Magna Carta without openly defying them, and his line 
of argument was that the King's professional judges, how- 
ever lowly born, were the peers of an English earl or baron .^ 
Neither the royal view nor the baronial view entirely pre- 
vailed. A distinction, however, must be drawn between 
criminal and civil pleas. 

(3) Criminal pleas. Offenders of the rank of barons 
partially made good their claim to a trial by equals ; while 
ordinary freemen failed. A further distinction is thus 
necessary, (a) Crown tenants. The conflicting views held 
by King and baronage here resulted in a compromise. In 
criminal pleas, the Crown was obliged to recede from the 
high ground taken by Peter des Roches in 1233. Un- 
willingly, and with an attempt to disguise the fact of 
surrender by confusing the issue, Bracton in theory and 
Henry III. in practice admitted part of the barons' demand, 
namely, " that in cases of alleged treason and felony, when 

^M. Paris, C/iron. Mag.^ III. 251-2. 

-Pollock and Maitland, I. 393, hesitate to condemn this argument. ** The very 
title of the 'barons ' of the Exchequer forbids us to treat this as mere insolence." 
Dr. Stubbs has no such scruples : " The Bishop replied contemptuously, and with 
a perverse misrepresentation of the English law" {Const. Hist.^ II. 49). Else- 
where he makes him, not so much contemptuous, as ill-informed of the law — 
''ignorant blunder as it was" (II. 191). Yet Bishop Peter had presumably an 
intimate knowledge of the law he administered as justiciar in 1233. In the matter 
of amercements, at least, barons of exchequer acted as peers of earls and barons. 



CHAPTER THIRTY-NINE 391 

forfeiture or escheat was involved, they should be judged 
only by earls and barons.^ Bracton does not admit that 
the King's justices were not " peers " of barons ; but 
deduces their disability from the narrower consideration 
that the King, through his officials, ought not to be judge 
in his own behalf, since his interests in escheats might bias 
his judgment. This explains why " privilege of peers " 
has never extended to misdemeanours, since these involved 
no forfeiture to the Crown. 

The judicium pariuvi was secured to earls and barons 
in later reigns by bringing the case before the entire body 
of earls and barons in commune concilium. What the 
barons got at first was " judgment " by peers. The actual 
" trial " was the " battle," the fellow-peers acting as umpires 
and enforcing fair play.^ Although new modes of proce- 
dure came to prevail, the Court of Peers continued its 
control, and the judgment of peers gradually passed into 
the modern trial by peers.^ The subject has been further 
complicated by the growth of the modern conception of a 
"peerage," embracing various grades of "nobles." In 
essentials, however, the rights of a baron accused of crime 
have remained unchanged from the days of Henry III. to 
our own. The privilege of " trial by peers " still extends 
to treason and felony, and is still excluded from mis- 
demeanours. When competent, it still takes place before 
a " Court of Peers " — namely, the House of Lords, if Parlia- 
ment is in session, and the Court of the Lord High Steward, 
if not. Under these limitations the privilege of a peer has 
been for centuries a reality in England for earls and barons, 
and also for members of those other ranks of the modern 
"peerage" unknown in 1215 — dukes, marquesses, and 
viscounts.^ 

1 Pike, House of Lords, 173. See also Bracton, f. 119 ; Pollock and Maitland, 
I. 393. 

2 "The trial, therefore— the ascertaining of the fact — was, though under the 
direction and control of the Court of Peers, by battle ; but the judgment on the 
trir.l by battle was to be given by the peers." Pike, Ilotise of Lords, 174. 

^Pike, ibid., 1 74-9. 

* The privilege was extended to peeresses by 20 Henry VI. c. 9. 



392 MAGNA CARTA 

(b) For tenants of a mesne lord no similar privilege has 
been established, even in a restricted form. In charges of 
felony, as in those of misdemeanour, all freemen outside 
the peerage are tried, and have been tried for many 
centuries past, in the ordinary courts of law. There is 
no privileged treatment for knight or landed gentleman : 
private feudal courts never recovered from the wounds 
inflicted by Henry II. The clauses of Magna Carta which 
sought to revive them were rendered nugatory by legal 
fictions or simply by neglect. 

(4) Civil pleas. Various attempts were made by the 
barons to make good a claim to judicium parium in civil 
cases. ^ The chief anxiety, perhaps, of the men of 12 15 
was to save their estates and castles from disseisin conse- 
quent on such pleas. Yet the barons' efforts in this direc- 
tion were unsuccessful. The House of Lords (except in 
cases involving the dignity or status of a peer) has never 
claimed to act as a court of first instance in civil cases to 
which a peer was a party. Noble and commoner here are 
on a level. No " peer of the realm " has, for many centuries, 
asked to plead before a special court of peers in any ordinary 
non-criminal litigation, whether affecting real or personal 
estate. 

VII. Erroneous Interpretations, The tendency to vague- 
ness and exaggeration has already been discussed. Two 
mistakes of unusual persistence require detailed notice. 

(i) The identification of judicium parium with trial by 
jury. The words of the present chapter form the main, if 
not the sole, ground on which this traditional error has 
been based.^ The mistake probably owes its origin to a 
tendency of later generations to explain what was unfamiliar 
in the Great Charter by what was familiar in their own 
experience. They found nothing in their own day to 
correspond with the judicium parium of 1215 ; and nothing 
in Magna Carta (unless it were this clause) to correspond 

^The Earl of Chester claimed it in 1236-7, and the Earl of Gloucester (as a lord 
marcher) in 1281. See Pollock and Maitland, I. 393 n. See, however, Harcourt, 
Steward, 291. 

2Cf. supra, pp. 134-5. 



CHAPTER THIRTY-NINE 393 

with trial by jury : therefore they identified the two.^ Mr. 
Reeves, Dr. Gneist, and other writers long ago exposed 
this error, but the most conclusive refutations are those 
given by Prof. Maitland and Mr. Pike. The arguments 
of these writers are of a somewhat technical nature ; ^ but 
their importance is far-reaching. They seem to be mainly 
three : — 

(a) The criminal petty jury cannot be intended in this 
chapter, since it had not been invented in 1215:^ to intro- 
duce trial by jury into John's Great Charter is an unpardon- 
able anachronism, (h) The barons would have repudiated 
trial by jury if they had known it. They desired (here as 
in chapter 21) that questions affecting them should be 
" judged " before fellow barons, and in the normal case, by 
the duellum. They would have scorned to submit to the 
verdict of " twelve good men " of their own locality. Their 
inferiors must have no voice in determining their guilt or 
innocence. This sentiment was shared by the tenants of 
mesne lords, (c) Judgment and verdict were essentially 
different. The function of a petty jury (after it had been 
invented) was to answer a specific question. The insurgent 
barons demanded more than this : they asked a decision 
on the whole case.^ The " peers " who judged presided 
over the proceedings from beginning to end, appointing 
the proof they deemed appropriate, sitting as umpires while 
its fulfilment was essayed, and giving a final decision as to 
success or failure therein. 

^ The erroneous identification of judgment of peers with trial by jury can be 
found far back in legal history. Pollock and Maitland, II. 622-3 i^m trace it to 
within a century of Magna Carta. "This mistake is being made already in 
Edward I.'s day; Y. B. 30-1 Edward I., p. 531." In spite of modern research 
the error dies hard. It appears, e.^^., in Thomson, Magna Charta, 223 ; Taswell- 
Langmead, Const. Hist., no; Goldwin Smith, " The United Kingdom,'''' I. 127. 

* Pollock and Maitland, I. 152 n., and Pike, Hotise of Lords, 169. 

^Cf. supra^ p. 134. 

*Cf. Pike, ibid., 169. "From the time when trial by jury first commenced, 
either in civil or in criminal cases, to this present end of the nineteenth century, 
no jury ever did or could give judgment on any matter whatsoever." The differ- 
ence between the ancient and modern conceptions of judgment, however, must 
not be lost sight of. 



394 MAGNA CARTA 

(2) Magna Carta and arbitrary commitment. A second 
erroneous theory has still to be discussed. The Petition of 
Right, as already stated, treats Magna Carta as prohibiting 
the Crown from making arrests without a warrant showing 
the cause of detention ; and the earlier commentators further 
interpreted it as making all acts of arbitrary imprisonment 
by the Crown absolutely illegal. Hallam, for example, 
declares that " It cannot be too frequently repeated that no 
power of arbitrary detention has ever been known to our 
constitution since the charter obtained at Runnymede." ^ 
Yet every King of England from John Lackland to Charles 
Stewart claimed and exercised the prerogative of sum- 
marily committing to gaol any man suspected of evil 
designs against Crown or Commonwealth. Even the 
famous protest of the judges of Queen Elizabeth, asserting 
the existence of legal limits to the royal prerogative of 
commitment, proves the lawfulness of the general practice 
to which it makes exceptions. Such rights inherent in the 
Crown were never seriously challenged until the struggle 
between Charles I. and his parliaments had fairly begun. 
Then only was it suggested that Magna Carta was intended 
to prohibit arbitrary commitments at the command of the 
Crown. Such was the argument deliberately put forth in 
1627 during the proceedings known sometimes as Darnell's 
case and someti«ies -as -the case of the Five Knights. 
Heath, the Attorney-General, easily repelled this conten- 
tion : " the law hath ever allowed this latitude to the King, 
or his privy council, which are his representative body, in 
€xtraordinary cases to restrain the persons of such freemen 
as for reasons of state they find necessary for a time, 
without for this present expressing the causes thereof." 2 
The parliamentary leaders, however, too grimly in earnest 
to be deterred by logic, were far from abandoning their 
error because Heath had exposed it. They embodied it, 
on the contrary, in the Petition of Right, which condemned 
the Crown's practice of imprisoning political offenders 
"" without any cause showed " (other than per speciale man- 

1 Cons^. Hist.^ I. 234. 

=^See State Trials, III. p i, and S. R. Gardiner, History, VI. 214. 



CHAPTER THIRTY-NINE 395 

datum regis), as contrary to the tenor of Magna Carta — 
an effective contention as a political expedient, but unsound 
in law. 



CHAPTER FORTY. 

NuLLi vendemus, nulli negabimus, aut differemus, rectum 
aut justiciam. 

To no one will we sell, to no one will we refuse or delay, right 
or justice. 

This chapter, like the preceding, has had much read into 
it that would have astonished its framers : application of 
modern standards to ancient practice has resulted in com- 
plete misapprehension. The sums customarily received by 
John, as by his predecessors, at every stage of legal proce- 
dure, were not always the wages of deliberate injustice. 
Many such payments were not bribes to an unjust judge, 
but merely expedients for hastening the law's delays, or* to 
ensure a fair hearing for a good plea, or to obtain some 
unusual but not unfair expedient, such as a peculiarly potent 
writ or the hearing of a case in the exchequer, which would 
ordinarily have been tried elsewhere. If the royal courts 
charged higher rates than the feudal courts, they supplied 
a better article. When Henry of Anjou threw open the 
doors of his court to all freemen who chose to pay for writs, 
he found a ready market. These writs differed widely in 
price. Some from an early date were issued whenever 
applied for (writs de cursu) and at a fixed sum : others 
were granted only as marks of favour or after a bargain 
had been struck. Specially quick or cogent procedure had 
to be specially paid for. 

It would thus appear that the system of John was not 
open to the unqualified and violent condemnation which it 
usually receives. Hallam's language is too sweeping when 
he says : " A law which enacts that justice shall neither 
be sold, denied, nor delayed, stamps with infamy that 
government under which it had become necessary." ^ In 

'^Middle Ages, II. 451. 



396 MAGNA CARTA 

the twentieth century, as in the thirteenth, justice cannot 
be had for nothing ; and tlie would-be litigant with a good 
claim but a slender purse will be well advised to acquiesce 
in a small loss rather than incur certainty of losing as much 
again in extra-judicial outlays, and risk of losing many 
times more in the judicial expenses of a protracted litiga- 
tion. The lack of " free justice " is a reproach which the 
men of to-day cannot with good grace fling at the adminis- 
tration of John. 

As the evils complained of are often exaggerated, so also 
are the reforms promised by this chapter of Magna Carta. 
John is usually held to have agreed to the abolition of 
payments of every sort for judicial writs and other fees 
of court. Justice, unlike other valuable commodities, was, 
it would appear, to be obtained for nothing — an ideal never 
yet attained in any civilized community. 

Those who framed this chapter desired to secure a more 
reasonable measure of reform : abuses of the system were 
to be redressed.^ Unfortunately, it was not easy to define 
abuses — to determine where legitimate payments stopped 
and illegitimate ones began. Prohibitive prices ought not 
to be charged for writs de cursu; but was the Crown to 
have no right to issue writs of grace on its own terms? 
Plaintiffs who had any special reason for haste frequently 
paid to have their suits heard quickly : was that an abuse ? ^ 

Whatever the intention may have been, the practical 
effect of the clause was not to secure the abolition of the 

^ Cf. Madox, I. 455 : '* By Jtullz vendemus were excluded the excessively high 
fines : by nulli negabimus, the stopping of suits or proceedings, and the denial of 
writs : by nulli differe^nus^ such delays as were before wont to be occasioned by 
the counterfines of defendants (who sometimes would outbid the plaintiffs) or by 
the prince's will." 

2 Fines for this purpose were frequent under Henry II. and his sons. Madox, 
I. 447, cites many examples. Thus in ii66 Ralph Fitz Simon paid two marks 
"for speeding his right." The practice continued under Henry III. in spite of 
Magna Carta. Bracton's Note-book cites a hard case (No. 743) : Henry III. was 
claiming prerogative wardship where it was illegal under c. 37 of Magna Carta 
{q.v.). The court might have delayed hearing the mesne lord's plea until the 
wardship was ended ; but he paid five mzxV^ pi-o festinando judicio suo. The fine 
was said to be given ** willingly " {sponte). Did the use of this word make possible 
an evasion of c. 40 of the Charter ? 



CHAPTER FORTY 397 

sale of writs. The practice under Henry III. has been 
described by our highest authority :— " Apparently there 
were some writs which could be had for nothing ; for others 
a mark or a half-mark would be charged, while, at least 
during Henry's early years, there were others which were 
only to be had at high prices. We may find creditors 
promising the King a quarter or a third of the debts that 
they hope to recover. Some distinction seems to have been 
taken between necessaries and luxuries. A royal writ was 
a necessary for one who was claiming freehold; it was a 
luxury for the creditor exacting a debt, for the local courts 
were open to him and he could proceed there without writ. 
Elaborate glosses overlaid the King's promise that he 
would sell justice to none, for a line between the price of 
justice and those mere court fees, which are demanded even 
in our own day, is not easily drawn. That the poor should 
have their writs for nothing, was an accepted maxim." ^ 

Probably the practice before and after 12 15 showed 'few 
material differences. Some of the more glaring abuses 
were checked : that was all.^ Parliament in subsequent 
reigns had frequently to petition against the sale of justice 
in alleged breach of Magna Carta.^ The King usually 
returned a politic answer, but never surrendered his right 
to exact large sums for writs of grace. Richard H., for 
example, replied : " Our lord the King does not intend to 
divest himself of so great an advantage, which has been 
continually in use in Chancery as well before as after the 
making of the said charter, in the time of all his noble 
progenitors who have been kings of England."^ 

It is evident that Magna Carta did not put down the 
practice of charging heavy fees for writs. Yet this chapter, 

* Pollock and Maitland, I. 174. Cf. ibid.^ II. 204, and authorities cited. 

^Madox, I. 455, says: ** And this clause in the great Charters seems to have 
had its effect. For ... the fines which were paid for writs and process of law 
were more moderate after the making of those great Charters than they used to be 
before." 

3 Instances are collected by Sir T. D. Hardy in Rot. de oblatis, p. xxi. See also 
Stubbs, Const. Hist., II. 636-7. 

^ Rot. Parl.i III. 116, cited Stubbs, Const. Hist.^ II. 637. 



398 MAGNA CARTA 

although so frequently misunderstood and exaggerated, is 
still of considerable importance. It marks, for one thing, 
a stage in the process by which the King's courts out- 
distanced all rivals. In certain provinces, at least, royal 
justice was left in undisputed possession. In these the 
grievance was not that there was too much royal justice, 
but that it was sometimes delayed or denied. Here, then, 
even in the moment of John's bitter humiliation we find 
evidence of the triumph of the policy inaugurated by his 
father. 

It is not to such considerations, however, that this chapter 
owes the prominence usually given to it in legal treatises; 
but rather to the fact that it has been interpreted as a 
universal guarantee of impartial justice to high and low ; and 
because, when so interpreted, it has become in the hands 
of patriots in many ages a powerful weapon in the cause 
of constitutional freedom. Viewing it in this light. Coke 
throws aside his crabbed learning and concludes with what 
is rather a rhapsody than a lawyer's commentary : " as the 
gold-finer will not out of the dust, threads, or shreds of 
gold, let pass the least crumb, in respect of the excellency 
of the metal; so ought not the learned reader to pass any 
syllable of this law, in respect of the excellency of the 
matter." ^ 



CHAPTER FORTY-ONE. 

Omnes mercatores habeant salvum et securum exire de 
Anglia, et venire in Angliam, et morari et ire per Angliam, 
tam per terram quam per aquam, ad emendum et ven- 
dendum, sine omnibus malis toltis, per antiquas et rectas 
consuetudines, preterquam in tempore gwerre, et si sint 
de terra contra nos gwerrina; et si tales inveniantur in 
terra nostra in principio gwerre, attachientur sine dampno 
corporum et rerum, donee sciatur a nobis vel capitali 
justiciario nostro quomodo mercatores terre nostre tracten- 

^ Second Institute J $6. 



CHAPTER FORTY-ONE 399 

tur, qui tunc invenientur in terra contra nos gwerrina; et 
si nostri salvi sint ibi, alii salvi sint in terra nostra. 

All merchants shall have safe and secure exit from England, 
and entry to England, with the right to tarry there and to move 
about as well by land as by water, for buying and selling by the 
ancient and right customs, quit from all evil tolls, except (in 
time of war) such merchants as are of the land at war with us. 
And if such are found in our land at the beginning of the war, 
they shall be detained, without injury to their bodies or goods, 
until information be received by us, or by our chief justiciar, 
how the merchants of our land found in the land at war with us 
are treated ; and if our men are safe there, the others shall be 
safe in our land. 

Merchants and merchandise had suffered from John's 
greed. The control of commerce was reserved for the 
King's personal supervision : no binding rule of law or 
traditional usage trammelled him in his dealings with 
foreign merchants, who were dependent on royal favour, 
not on the law of the land, for the privilege of trading and 
even for personal safety. No alien could enter England 
or leave it, nor take up his abode in any town, nor move 
from place to place, nor buy and sell, without paying heavy 
tolls to the King. This royal prerogative proved a profit- 
able one.^ 

John increased the frequency and amount of such exac- 
tions, to the detriment alike of foreign traders and their 
customers. Magna Carta, therefore, sought to restrain this 
branch of prerogative, forbidding him to exact excessive 
tolls for removing obstacles of his own creating. This 
benefited merchants by securing to them certain privileges, 
which may perhaps be analysed into three : safe-conduct, 

^ So far all authorities are agreed, though a difference of opinion exists as to the 
source of these prerogatives. Thus (a) Stephen Dowell, History of Taxation and 
Taxes in England, I. 75, considers that the duties on imports and exports were in 
their origin of the nature of voluntary dues paid by foreign merchants in return for 
freedom of trade and royal protection ; {b) Hubert Hall, Customs Revenue oj 
England, I. 58-62, justly reckons this prerogative as merely one aspect of purvey- 
ance, that is, of the King's right to take what he needed for himself and household. 
Under an autocrat, however, facts count for more than theories. The prerogative 
was measured by brute force : Kings took what they could with no jealous regard 
for the exact letter of the law, and left future ages to invent theories to justify or 
explain their conduct. 



400 MAGNA CARTA 

that is protection of their persons and goods from violence ; 
liberty to buy and sell in time of peace ; and a confirmation 
of the ancient stereotyped rates of " customs." 

So far, the general purport of the enactment is un- 
doubted ; but discussions have arisen on several important 
points, such as the nationality of the traders in whose 
favour it was conceived ; the exact nature of the " evil tolls " 
abolished; the motives for the rules enforced; and the 
relations between denizens and foreign traders. 

I. Magna Carta favours alien Merchants. The better 
opinion would seem to be that this chapter applied to 
foreign traders from friendly states. Attempts have been 
made, indeed, to argue that denizens were to benefit equally 
with strangers : such was the purport of a learned discourse 
delivered in the House of Commons by William Hakewill, 
Barrister of Lincoln's Inn, in 1610, during the debate on 
John Bate's case.^ His main argument was that certain 
statutes of Edward HI. ,2 in seeking to confirm and expand 
the provisions of Magna Carta, did clearly embrace denizens 
as well as aliens. Yet the framers of an Act in the four- 
teenth century may well have misunderstood the tenor of 
John's Charter, or may have deliberately altered it. 

Intrinsic and extrinsic evidences combine to create a 
strong presumption that here Magna Carta referred chiefly, 
perhaps exclusively, to merchants of foreign lands.^ 
Denizens trading in England did not require those " safe 
conducts " which form the chief concession in this chapter. 
Their rights of buying and selling were already protected 
in another way; for independent traders were unknown, 
all merchants being banded into guilds in the various 
towns whose privileges (" omnes libertates et liberas consue- 
tudines ") were guaranteed in a previous part of the Great 
Charter.^ Alien merchants, however, required protection, 

^ See Sta^e Trials, II. 407-475, and especially 455-6. 

"^E.g. 2 Edward III. c. 9 and 14 Edward III., stat. i, c. 21. 

^ Two-thirds of the chapter is occupied in explaining that merchant strangers of 
unfriendly States are not to benefit from it. Mr. Hakewill was aware of this, but 
•sought to evade the natural inference by subtleties which are not convincing. 

* See supra, under c. 13. 



CHAPTER FORTY-ONE 401 

since they had, strictly speaking, no status in the eye of 
the law, and held their privileges from the King.^ The 
policy of Henry II. and his sons was to favour merchant 
strangers, but to exact in return the highest dues possible, 
restrained only by an enlightened self-interest whiqh 
stopped short at the point where trade would languish by 
becoming unprofitable. The exchequer and patent rolls 
afford illustrations of how individual traders or families 
made private bargains with the Crown for trading privi- 
leges. In 1 181, Henry obtained two falcons for granting 
leave to export corn to Norway. In 1197, a certain Hugo 
Oisel owed 400 marks for licence to trade in England and 
Richard's other lands, in time of war as well as peace.^ 

At the commencement of John's reign, traders resident 
in England collectively obtained confirmation of their 
privileges. That King issued letters patent to the Mayor 
of London, to the magistrates of many smaller towns, and 
to the sheriffs of the southern counties of England, directing 
them, in terms closely resembling those of Magna Carta, 
to allow to all merchants, of whatsoever land, safe coming 
and going, with their wares.^ 

These arrangements were temporary. John did not 
intend that any general grant should prevent him from 
exacting further payments from individuals as occasion 
offered. For example, Nicolas the Dane promised a hawk 
each time he entered England, that he might come and go 
and trade " free of all customs which pertain to the King." ^ 
Such customary dues, at the usual rates, were not abolished 
by the^Charter, but only the arbitrary additional payments 
for which there was no warrant. 

On this point, then, Magna Carta contained no innova- 
tions, and the same is true of its provision for reprisals 
against traders from lands where English merchants were 
ill-treated. On the outbreak of war, the Charter directs 

*For the legal position of aliens, see Pollock and Maitland, I. 441-450. 

2 See Pipe Rolls^ 27 Henry II. and 8 Richard I., cited Madox, I. 467-8. 

3 See Rot. Chart. ^ 60 (5tli April, 1200). 

* See Pipe RoU^ 6 John, cited Madox, I. 469, where other illustrations will be 
found. Cf. also TP^?/. Pat.^ 170, 170b, 171, 172b. 

2C 



402 MAGNA CARTA 

that merchants of the enemy's nation should be detained 
until the King ascertained how his own subjects were treated 
in the enemy's territory. This is declaratory of previous 
practice, of which an illustration may be found in the terms 
of a writ of August, 12 14, which directed the bailiffs of 
Southampton to detain all Flemings and their goods pend- 
ing further instructions.^ There were thus precedents for 
those rules for foreign traders, which have aroused the 
admiration of Montesquieu.^ 

II. Customs and Tolls. " Consuetudines " is in this 
passage used in its narrower, financial sense, relating to 
those duties on imports and exports still called " customs " 
at the present day, and to various local dues as well.. 
" Tolls," when not stigmatized as " evil tolls " would seem 
to be practically synonymous with these customs. The 
Crown had at first taken whatever it thought fit. Practice 
soon established rules as to the normal rates considered 
fair in various circumstances. When a ship-load of 
foreign wine arrived, the normal toll was " one cask 
from a cargo of ten up to twenty casks, and two casks 
from a cargo of twenty or more."^ From other merchan- 
dise a share was claimed of a fifteenth or sometimes a tenth 
of the whole. Such tolls, if originally a species of ransom, 
had in John's day come to be regarded as a legitimate 
branch of royal revenue. Any arbitrary increase, however, 
was condemned by public opinion, and ultimately by 
Magna Carta as a " mala tolta." 

The King was not the only one who exacted tolls. Every 
town in England, and many feudal magnates, by prescrip- 
tive usage or royal grant, levied payments on goods bought 

1 In the same writ John bade them allow to depart freely all vessels of the land 
of the Emperor or of the King of Scotland after taking security that they would 
sail straight to their own countries, with none but their own crews. See jRo^. 
Claus.f I. 211, and cf. series of writs in I. 210. 

2 See Be V Esprit des Lois, II. 12 (ed. of 1750, Edinburgh), *' La grande chartre 
des Anglois difend de saisir et de confisquer en cas de guerre les marchandises des 
n^gociants itrayigers, a vioins que ce ne soit par reprisailles. LI est beau que la 
nation Angloise ait fait de cela un des articles de sa liberty l'^ 

3 S. Dowell, IList. of Taxation, I. 83, citing Madox, I. 525-9 {2nd ed. I. 765- 
770), and Liber Albus, I. 247-8. 



CHAPTER FORTY-ONE 403 

or sold at fairs and markets, or that entered the city gates, 
or were unloaded at river wharves, or traversed certain 
roads. The ambition of every borough was to increase its 
own franchises at the expense of its neighbours. The free 
customs of Bristol, for example, meant not only that the 
men of that city should have freedom from tolls inflicted by 
others, but that they should have the right to inflict tolls 
upon those others. A whole network of such customs and 
restrictions impeded the free exchange of commodities in 
every part of England. Magna Carta had no intention of 
sweeping these away, so far as they were " just and 
ancient " ; and it is probable that the prohibition against 
arbitrary increase of tolls was directed only against the 
Crown. 

III. The Motives prompting these Provisions. It has 
been not unusual to credit the framers of Magna Carta 
with a policy of quite a modern flavour; they are made 
free-traders and credited with a knowledge of economic 
principles far in advance of their contemporaries. This is 
a misconception : Englishmen in the thirteenth century 
had formulated no far-reaching theories of the rights of 
the consumer, or the policy of the open door. The home 
traders were not consenting parties to this chapter, and 
would have bitterly resented any attempt to place foreigners 
on an equal footing with the protected guilds of the English 
boroughs. The barons acted on their own initiative and 
from purely selfish motives. Rich nobles, lay and ecclesi- 
astic, desired that nothing should prevent the foreign 
merchants from importing wines and rich apparel that 
England could not produce. John, indeed, as a consumer 
of continental luxuries, partially shared their views, but 
his selfish policy threatened to strangle foreign trade by 
increasing the burdens attached to it, until it ceased to be 
remunerative. The barons, therefore, in their own interests, 
not in those of foreign merchants, still less in those of 
native traders, demanded that the customs duties should 
remain at their old fixed rates. In adopting this attitude, 
they showed their selfish indifference to the equally selfish 
claims of English traders, who desired a monopoly for 



404 MAGNA CARTA 

themselves. Every favour shown to foreign merchants 
was an injury done to the guilds of the chartered boroughs. 
This chapter thus shows a lack of gratitude on the barons' 
part for the great service rendered by their allies, the 
citizens of London. John, on the other hand, would have 
little reluctance in punishing the men of his capital who, 
with the ink scarce dry on their new municipal charter, had 
not scrupled to desert his cause. ^ It must have been with 
grim pleasure that, on 21st July, 1215, in strict conformity 
with the tenor of Magna Carta, he addressed a writ to 
King Philip inviting reprisals upon London merchants in 
France in certain contingencies.^ 

In the reissue of 12 16 the privileges conferred on merchant 
strangers were confined to such as had not been " publicly 
prohibited beforehand." This was a material alteration, 
the effect of which was to restore to the King full discre- 
tionary authority over foreign trade, since he had only 
to issue a general proclamation, and then to accept fines 
for granting exemption from its operation. 

IV. English Boroughs and Merchant Strangers. The 
quarrel between home and alien traders underwent many 
vicissitudes during succeeding centuries, the Crown taking 
now one side, and now the other, as its pecuniary interests 
happened to dictate for the moment. No glimmerings of 
the doctrine of free trade can be traced : the merchants of 
each town, banded in their guilds, directed their endeavours 
towards securing rights of exclusive trading for themselves. 
It is true that the men of London were scarcely more jealous 
of the citizens of Rouen or Paris than of those of York or 
Lincoln ; their ambition was to inflict restrictions upon all 
rivals alike. 

English traders were not yet merchant shippers and 
therefore did not prevent foreigners from undertaking the 

1 See supra, 34-35. 

* See New Rymer, I. 135 : ** Know that we have ordered the mayor and sheriffs 
of London to allow merchants of your land to remove their goods and chattels from 
London, without hindrance to doing thence their will ; and that if they do not, you 
may, if it please you, grieve and molest the men of that town {J.llius villae) in your 
power, without our reckoning it a breach of truce on your part." 



CHAPTER FORTY-ONE 405 

carrying trade between England and the Continent. 
Flanders bought English wool and sent back woven fabrics 
to rival which English looms could not aspire. Londoners, 
however, resold these goods at a profit and resented any 
attempt of aliens to encroach on their retail monopoly by 
coming into touch w4th English magnates or other con- 
sumers. Foreigners must be kept " at the wharf-head." 

The Liber Custumarum, a compilation of the early 
thirteenth century, lays down minute rules for the regula- 
tion of foreign traders in London. The merchant stranger 
had to take up his abode in the house of a citizen. He 
was prohibited from purchasing articles in process of 
manufacture. He could buy only from those who had 
the freedom of the city, and could not re-sell within the 
borough walls. He was allowed to sell only to burgesses 
of London, except on three specified days of the week. 
Such were a few of the rules which the Londoners enforced 
on all traders within their gates. The King, however, 
intermittently encouraged foreigners. Under the fostering 
protection of Henry HL, Lombards and Proven9als settled 
in considerable numbers in the capital ; and, with conniv- 
ance of the King, infringed these rules. When the 
Londoners complained, Henry refused relief. Their loyalty 
thus shaken, they sided with the King's opponents in the 
Barons' War, and when the royalist cause triumphed at 
Evesham, the Capital shared in the punishment meted out 
to the Crown's opponents. Prince Edward in 1266 was 
nominated protector of foreign merchants. At the acces- 
sion of that Prince, London bought itself back into favour, 
and an attempt was made to define what tolls might be 
taken by the Crown. In 1275, in Edward's first parlia- 
ment, a tariff was fixed by " the prelates, magnates, and 
communities at the request of the merchants " on most of 
what then formed the staple exports of England : half a 
mark on every sack of wool, half a mark on every three 
hundred wool-fells (that is untanned skins with the fleeces 
on), and one mark on every load of leather. 

These were subsequently called magna et antiqua 
custuma. The settlement of 1275 was by no means final. 



4o6 MAGNA CARTA 

New disputes arose; and in 1285 Edward I. confiscated 
the liberties of London, suppressed what he characterized 
as abuses, and favoured the aliens. In 1298 the franchises 
of the capital were restored, and very soon the abuses com- 
plained of began anew. Edward retorted in 1303 by a 
special ordinance known as the Carta Mercatoria in favour 
of their foreign rivals, by the terms of w^hich the provisions 
of the present chapter of Magna Carta became at last a 
reality. This new charter, which was the result of a 
bargain struck between the Crown and the alien traders, 
conferred various privileges and exemptions in return for 
an increase of fifty per cent, of duty, known henceforth as 
parva et nova custuma. Edward I. made several attempts 
to exact the higher rates from denizens as well as strangers ; 
but in this he failed. In 1309 a Petition of Parliament 
was presented against the exaction of the " new customs," 
declaring them to be in contravention of Magna Carta. 

In 131 1 a temporary community of economic and political 
interests resulted in an alliance between the English mer- 
chants and the English baronage, whose combined efforts 
forced the "Ordinances" upon Edward II., compelling 
him for a time to reverse his father's policy of favouring 
foreigners at the expense of native merchants. It is un- 
necessary to follow the checkered fortunes of these Ordin- 
ances, frequently enforced and as frequently abolished, 
according as the fortunes of the barons or of Edward II. 
were for the moment in the ascendant. During the reign 
of Edward III. the deep-rooted quarrel between home and 
alien merchants continued; and many changes of policy 
were adopted by the Crown. The statute of 1328, which 
abolished the "staples beyond the sea and on this side," 
provided " that all merchant strangers and privy may go 
and come with their merchandises into England, after the 
tenor of the Great Charter." ^ Seven years later, this was 
confirmed by an act which placed strangers and denizens 
on an exact equality in all branches of trade, both wholesale 
and retail, under the express declaration that no privileged 
rights of chartered boroughs should be allowed to interfere 

^ 2 Edward III. c. 9. 



CHAPTER FORTY-ONE 407 

with its enforcement. 1 While this statute merely repeated 
and applied the general doctrine of the present chapter 
of Magna Carta, it directly infringed the provisions of 
chapter 13.2 Such sweeping regulations were in advance 
of their age and could not be carried out without revolu- 
tionizing the medieval scheme of trade and commerce, 
which depended on merchant guilds, town charters and 
local monopolies. The influence of the English boroughs 
and their political allies was strong enough to make the 
strict enforcement of such legislation impossible ; and later 
statutes, bowing to the inevitable, restored the privileges 
of the boroughs, while continuing to enunciate an empty 
general doctrine of free trade to foreigners.^ The English 
boroughs, to which Parliament in the reign of Richard II. 
thus restored their franchises and monopolies, were able 
effectually to exclude foreign competition, in certain trades 
at least, from within their walls, for four centuries, until 
the Statute of 1835 ushered in the modern era of free 
trade.4 



CHAPTER FORTY-TWO. 

LiCEAT unicuique de cetero exire de regno nostro, et redire, 
salvo et secure, per terram et per aquam, salva fide nostra, 
nisi tempore gwerre per aliquod breve tempus, propter 
communem utilitatem regni, exceptis imprisonatis et utla- 
gatis secundum legem regni, et gente de terra contra nos 
gwerrina, et mercatoribus de quibus fiat sicut predictum 
est. 

It shall be lawful in future for any one (excepting always 
those imprisoned or outlawed in accordance with the law of 
the kingdom, and natives of any country at war with us, and 

^See 9 Edward III. c. i, and cf. 25 Edward III., stat. 4, c. 7. 

^Cf. nipra^ pp. 247-8, where the inconsistency between the two parts of the 
Great Charter is pointed out. See also supruy p. 117. 

3 See 2 Richard II., stat. i, c. i, and 11 Richard II. c. 7. 

* See 5 and 6 William IV. c. 76, s. 14. 



408 MAGNA CARTA 

merchants, who shall be treated as is above provided) to leave 
our kingdom and to return, safe and secure by land and water, 
except for a short period in time of war, on grounds of public 
policy — reserving always the allegiance due to us. 

The terms of this permission for free intercourse between 
England and foreign lands are peculiarly wide, the excep- 
tions being reasonable and necessary. Prisoners obviously 
could not leave our shores, nor outlaws return to them : 
the case of merchants from hostile states had already been 
provided for in a liberal spirit ; while the temporary restric- 
tion of intercourse with the enemy on the outbreak of 
hostilities was eminently reasonable. 

Although the provision is thus general in its scope, it 
was peculiarly welcome to the clergy, as enabling them 
without a royal permit to proceed to Rome, there to prose- 
cute their appeals or press their claims for preferment. 
Thus considered, it contains a virtual repeal of article 4 
of the Constitutions of Clarendon of 1166, which forbade 
archbishops, bishops, and parsons (personcB) of the king- 
dom to leave England without the King's licence. The 
grant of freedom of intercourse in 12 15 opened a door 
for the Church to encroach on the royal prerogative; and 
for that reason it was omitted from the reissue of 12 16, 
never to be replaced. A boon was thus withdrawn from 
all classes from fear that it might be abused by the ecclesi-: 
astics. Henry III. took advantage of the omission in order 
to restrain the movements of clergy and laity alike. Those 
who left the country without licence had frequently to pay 
fines.^ 

The stringency with which the prerogative was at first 
enforced tended afterwards to relax. The King preserved 
the right, but only exercised it by means of proclamations 
over particular classes or on special occasions, the inference 

^ £.£'. Coke {Third Instittitey p. 179) cites from Rot.finitim of 6 Henry III. and 
Rot. Claus. of 7 Henry IH. the following case: " Willielmus Marmion clericus 
projectus est ad regem Franciae sine liceiitia domini regis ^ et proptereajinem fecit. ^* i 
The practice had apparently been much the same prior to Magna Carta. E.g. 
Madox (I. 3) cites from Pipe Roll of 29 Henry H. how " Randulfus filins Waltert' 
reddit compotum de XX marcis, quia exivit de terra Domini Regis." See also 
Makower, Const. Hist, of Eng. Church, 239-240 and notes. 



CHAPTER FORTY-TWO 409 

being that all not actually prohibited were free to come and 
go as they pleased. Thus, in 1352 Edward III. had it pro- 
claimed throughout every county of England that no earl, 
baron, knight, man of religion, archer, or labourer, should 
depart the realm under pain of arrest and imprisonment.^ 
The fact that Edward found it necessary to issue such an 
ordinance, autocratic and abhorrent to modern ideals as its 
terms now appear, points to a decrease of royal power, as 
compared with that exercised by Henry II., John, or Henry 
III. A further curtailment of prerogative may be inferred 
from the terms of a Statute of Richard II. ,2 which, in con- 
firming the King's power to prohibit free egress from 
England, does so, subject to wide exceptions. Under its 
provisions the Crown might prohibit the embarkation of all 
manner of people, as well clerks as others, under pain of 
forfeiture of all their goods, " except only the lords and 
other great men of the realm, and true and notable mer- 
chants, and the King's soldiers," who were apparently in 
1381 free to leave without the King's licence, although earls 
and barons had been prohibited in 1352. Even if this 
statute confers on magnates, merchants, and soldiers, free- 
dom to go abroad without royal licence (which is doubtful), 
the powers of veto reserved to the Crown were still, to 
modern ideas, excessive. The Act remained in force until 
1606, when it was repealed under somewhat peculiar cir- 
cumstances. After the union of the Crowns, King James, 
anxious to draw the bond closer, persuaded his first English 
parliament to abrogate a number of old laws inimical to 
Scottish interests. It was in this connection that the Act of 
Richard II. was declared (in words, however, not limited 
to Scotland) to be "from henceforth utterly repealed."^ 
Coke stoutly maintains that this repeal left intact the 
Crown's ancient prerogative, not founded upon statute but 
on the common law, of which power the already-cited 
Proclamation of Edward III. had been merely an emana- 
tion. He seems almost, therefore, to argue that the King 
in the seventeenth century retained authority which 

, ^See Coke, ibid., citing the Close Roll of 25 Edward III. 
25 Richard II., stat. I, c. 2. ^^ j^mes I. c. I, s. 22. 



410 MAGNA CARTA 

extended precisely over those classes mentioned in the 
ordinance of 1352. 

In any view, this prerogative has never been completely 
abolished : yet the onus has been shifted. While, under 
John or Henry III., the subject required, before embarking, 
to obtain a licence from the Crown, under later Kings he 
was free to leave until actually prohibited by a royal writ. 
Coke ^ speaks of the form originally used for this purpose, 
a form so ancient in his day as to be already obsolete, known 
as Breve de securitate invenienda quod se non divertet ad 
partes cxternas sine licentia regis. This was superseded by 
the simpler writ Ne exeat regno which is still in use.^ The 
sphere of this writ was restricted and altered : it ceased to 
be an engine of royal tyranny and was never issued except 
as part of the process of a litigation pending in the Court of 
Chancery. Regarded with suspicion by the courts of com- 
mon law, it was for centuries the special instrument which 
prevented parties to a suit in equity from withdrawing to 
foreign lands. Some uncertainty exists as to the proper 
province of these writs since the Judicature Acts have 
merged the Court of Chancery in the High Court of 
Justice.^ The perfect freedom to leave the shores of Eng- 
land and return at pleasure, accorded by John's Magna 
Carta, but immediately withdrawn as impracticable for that 
age, has thus in the course of centuries been fully realized.^ 

Two phrases, occurring in this chapter, call for comment : 
(i) Salva fide nostra. This short-lived clause of Magna 
Carta very properly provided that mere absence from Eng- 
land should absolve no one from allegiance to his King. 
The old doctrine of nationality was stringent : nemo potest 
exuere patriam. Everyone born in the land owed allegi- 
ance to its King — and this tie continued unbroken until 
severed by death. A breach of allegiance, which was 

1 Third Institute, p. 178. 

'■^ Its origin is obscure. See Beames, Brief view of the writ of Ne Exeat, 
fassim. 

' See Encyclopaedia of Laws of England, IX. 79. 

*On the whole subject of these writs, see Stephen, Commentaries, II, 439-40 
(ed. of 1899), and authorities tliere cited. 



CHAPTER FORTY-TWO 411 

consequent thus on the mere accident of birth, might expose 
the offender to the inhuman horrors inflicted upon traitors. 

A series of statutes, culminating in the NaturaHzation 
Act of 1870, have entirely abrogated this ancient doctrine. 
A native of Great Britain is now free to become the subject 
of any foreign state; and the mere fact of his doing so, 
deliberately and with all necessary formalities, denudes him 
of his British nationality, severs the tie of allegiance, and 
frees him from the operation of the law of treason. The 
words " salva fide nostra " no longer apply. 

(2) Propter communem utilitatem regni. The Charter, in 
placing restriction on the right of free egress in time of war, 
declared that such restriction was to be imposed for the 
common good of the kingdom, thereby enunciating what is 
regarded as a modern doctrine : John was to take action, 
not for his own selfish ends, but only pro bono publico. 



CHAPTER FORTY-THREE. 

Si quis tenuerit de aliqua eskaeta, sicut de honore Walling- 
fordie, Notingeham, Bolonie, Lancastrie vel de aliis 
eskaetis, que sunt in manu nostra, et sunt baronie, et 
obierit, heres ejus non det aliud relevium, nee faciat nobis 
aliud servicium quam faceret baroni si baronia ilia esset in 
manu baronis ; et nos eodem modo eam tenebimus quo baro 
eam tenuit. 

If anyone holding of some escheat (such as the honour of 
Wallingford, Nottingham, Boulogne, Lancaster, or of other 
escheats which are in our hands and are baronies) shall die, 
his heir shall give no other relief, and perform no other service 
to us than he would have done to the baron, if that barony had 
been in the baron's hand; and we shall hold it in the same 
manner in which the baron held it. 

This chapter reaffirms a distinction recognized by Henry 
II. but ignored by John. Crown-tenants were divided into 
two classes, according as their holdings had been originally 
granted by the Crown, or by some mesne lord whose barony 
had subsequently escheated. The latter class received pre- 



412 MAGNA CARTA 

ferential treatment from Henry II. for reasons to be 
immediately explained. A mesne lord had no right to 
appropriate the holdings of sub-tenants of a tenant who had 
incurred escheat ; but the Crown did not submit to this just 
restriction. The King treated all sub-tenancies as wiped 
out by the mere fact that their lord's fief had escheated to 
the Crown. 

Henry II. mitigated in practice the full severity of this 
theory, confirming as of grace, or from motives of policy, 
or in return for money, claims which he refused to admit 
as matter of right. The tenants of escheated baronies were 
accepted as tenants in capite of the Crown. ^ Not only so; 
but Henry did not allow them to be prejudicially affected 
by the change. The King would only take from them 
those services and feudal dues which they had been wont 
to render to the lord of the barony previous to its escheat. 
This just and lenient policy explains the origin of the 
division of royal tenants into two classes; tenants who 
held of Henry ut de corona, and tenants who held of him 
ut de escaeta, ut de honore, or ut de haronia (phrases used 
synonymously).^ In respect of such obligations as were 
heavier for ordinary Crown tenants than for tenants of 
mesne lords, holders of Crown fiefs ut de escaeta were 
placed on the more favoured footing. Two illustrations 
may be given. While tenants ut de corona under Henry 
had to pay large and arbitrary reliefs, those ut de escaeta 
paid no more than iocs, per knight's fee.^ Nor was their 

^ Royal clemency in this respect could not be relied on by the sub-tenants of 
sma/l escheated fiefs (not reckoned as honours or baronies). This seems to be the 
opinion of Madox, Ba^-onia Anglica, 199: " If a fee holden of the Crown in 
capite escheated to the King and was not an Honour or Barony, then such fee did 
not (that is to say, I think it did not) vest in the Crown in the same plight in which 
it was vested in the said tenant in capite.'''' Cf. also ibid., 203. 

2 See Madox, Baronia An£-/ica,i6g-i7i ; also Pollock and Maitland, I. 261, 
and authorities there cited. 

3 See Dialogus^ II. x. F, and ibid., II. xxiv. The same rule applied to sub- 
tenants of baronies in wardship (which was analogous to temporary escheat) : when 
the see of Lincoln was vacant in 1168, the heirs of sub-tenants paid to Henry only 
what they would have paid to the bishop ; one giving ;^30 for six fees, and another 
30 marks for four. See Pipe Roll, 14 Henry II., and cf. supra, c. 2. In the 



CHAPTER FORTY-THREE 413 

obligation of " suit " to be increased : " the tenants of any 
honour or manor which had come by escheat to the Crown, 
were not suitors of the Curia Regis, but of the court of 
the honour or manor which had so escheated." ^ 

John ignored this distinction, extending to tenants ut de 
escaeta the more stringent rules applicable to tenants ut 
de corona. Magna Carta reaffirmed the distinction; and, 
not content with enunciating a general principle, made two 
particular applications of it : neither reliefs nor services 
of former tenants of baronies were to be augmented by 
reason of the fact that such baronies had escheated to the 
Crown. 2 Henry III.'s Charter of 1217 emphasized a third 
application of the general rule, declaring that he would not, 
by reason of an escheated barony, claim escheat or custody 
over the sub-tenants of that barony.^ To understand this 
concession, it must be remembered that under Henry HI. 
sub-tenants of baronies were still liable to have their titles 
reduced through the escheat of their lord; while sub- 
tenants of those who were themselves sub-tenants were not 
exposed to a similar mischance. Here also, the position of 

matter of scutage, also, a distinction was recognized : while tenants ut de corona 
might be compelled to serve in person without an option, Crown-tenants ut de 
honore (and, a fortiori^ sub-tenants also) might claim exemption on tendering scutage. 
See case of Thomas of Inglethorpe in 12 Edward II., cited by Madox, Baronia 
Anglica^ 169- 1 71. 

^ Report on the Dignity of a Peer, I. 60. 

^ The need for this reference to relief is not, at first sight, obvious, since c. 2 of 
Magna Carta, by forbidding John to exact from Crown-tenants of either class the 
arbitrary sums taken by his father, would seem to have already secured them from 
abuse. Probably, however, c. 43 sought to prevent John from treating each tenant 
of the escheated barony as holder of a new barony of his own, and therefore liable 
to a baron's relief of ;i^ioo instead of the £2^ he ought to pay for his five fees, or 
;^50 for his ten fees, or as the case might be. The case of William Pantol (see 
Pipe Roll, 9 Henry III., cited Madox, I. 318) seems to illustrate this. He was 
debited with ^^loo of relief, but protested that he held nothing of the Crown save 
five knights' fees of the land which was of Robert of Belesme. This plea was 
upheld, and £'j^ of the amount debited was written off. 

^See c. 38 of 1217, and cf. the gloss given by Bracton (II. folio 87b) which 
makes the meaning somewhat less obscure. The Charter of 12 17 contained a 
saving clause: "unless the holder of the escheated barony held directly of us 
elsewhere." Bracton added a second proviso, namely, unless the said sub-tenants 
(now Crown-tenants tit de escaeta) had been enfeoffed by the King himself. 



414 MAGNA CARTA 

Crown fiefs tU de escaeta was to be assimilated to that of 
fiefs of mesne lords, and differentiated from that of Crown 
fiefs ut de corona. Sub-tenancies of escheated baronies 
were not to be wiped out, but to subsist, and the Crown 
(or its grantee) would take the escheat, subject to all 
liabilities to, and rights of, sub-tenants. 

The Crown seems not to have strictly observed this 
rule in practice. Article 12 of the Petition of the Barons 
in 1258 ^ complained that Henry had granted charters 
conferring rights not his to give (aliena jura), but which 
he claimed as escheats. An act of the first year of 
Edward III. narrated how the Crown had confiscated, from 
purchasers, tenements held of the Crown " as of honours," 
thus treating them " as though they had been holden in 
chief of the King, as of the Crown." Redress was pro- 
mised by the statute i^ but irregularities continued through- 
out the earlier Tudor reigns; and the first Parliament of 
Edward VI. passed an act to protect purchasers of lands 
appertaining to honours escheated to the Crown. ^ 



CHAPTER FORTY-FOUR. 

Homines qui manent extra forestam non veniant de cetero 
coram justiciariis nostris de foresta per communes sum- 
moniciones, nisi sint in placito, vel plegii alicujus vel 
aliquorum, qui attachiati sint pro foresta. 

Men who dwell without the forest need not henceforth come 
before our justiciars of the forest upon a general summons, 
except those who are impleaded, or who have become sureties 
for any person or persons attached for forest offences. 

These provisions were intended to redress one of many 
abuses connected with the oppressive forest laws. 

I. The Royal Forests, The word " forest " had acquired 
an exact technical meaning, and was applied_ip certain 

^ See Sel. Charters^ 384 ; but see Adams, Origin^ 344 n. 

2 See I Edward III., stat. 2, c. 13, Statutes of Realm, I. 256. 

'See I Edward VI., c. 4, Statutes 0/ Realm, III. 9. 



CHAPTER FORTY-FOUR 415 

wide districts, scattered irregularly throughout England, 
reserved to the Crown for^ purposes of sport. Here the 
wild boar "and deer of various species found shelter, in 
which they were protected by the severe regulations of the 
" F orest Law." It was the prevalence of this code which 
marked off the districts known as ro^^aHor^sts from all that 
lay extra forestam; and this made an accurate definition 
possible. A " forest " was a district where this law pre- 
vailed to the exc|usion_Qf_th^common law which ruled 
outside. The forests with their inhabitants had been 
omitted from the process b^y wETch ttte rest of England 
had been assimilated under a uniform lex terrae : this was 
the root from which rnany evils grew. 

From this definition of a forest as a legal, not a physical, 
entity, it follows that the word is far from synonymous 
with terms such as " wood " or " covert, " implying merely 
natural characteristics. A forest was not necessarily 
covered with trees throughout the whole or even the 
greater part of its extent. Miles of moorland and heath 
and undulating downs might be included, and even fertile 
valleys, with ploughed fields and villages nestling among 
them. The same forest, indeed, might contain many 
woods, some of them on royal demesne and some the 
property of private owners. Within the imaginary line 
the King's power was supreme, and he used it frankly for 
the preservation of beasts of the chase. The men who 
happened to dwell there were subject to a law, in the 
expressive words of Dr. Stubbs, " cruel to man and beast." 
If accused of forest offences, they had no protection from 
the common law of England any more than Trom the law 
of a foreign land. It was something, however, that even 
in these high places of prerogative, customary rules grew 
up, obtained authoritative recognition, and hardened into 
laws which set some limits to royal caprice. Before John's 
time the forest code, as set forth in the Assize of Wood- 
stock, had taken its place as a definite system of law% distinct 
from common law and canon law alike. ^ 

*A convenient, short account of the forests, with their special laws, special 
officials, and special courts, will be found in W. S. Holdsworth's Hi stoty of English 
Lmv, I. 340-352. For fuller information see Dialogtis de Scaccario, I. xii. ; John 



4i6 MAGNA CARTA 

II. Origin of the Forests. Before the Norman Conquest 
the Kings of England do not seem to have laid claim to 
any exclusive prerogative in this respect. The only ordin- 
ance of Canute on the subject, admitted to be authentic, 
enacted merely that every man should have his own 
hunting, while the King should have his.^ The rights of 
the Crown, however, were strengthened by the events of 
1066, and by the hardening of feudal theory which followed. 
All unoccupied waste lands became royal property; and 
these were the natural resorts of the larger sorts of game. 
The King established a claim to an exclusive right to hunt 
the more important species of animals ferae naturae, known 
as " beasts of the forest " — embracing the red deer (harts 
and hinds), the fallow deer (bucks and does), the roe deer 
of both sexes, and the wild boar, w4th, exceptionally in 
one forest, the ordinary hare.^ Henry I. formulated the 
forest law, and it was probably due to him that " forest " 
acquired its technical meaning. With the special meaning 
came the express claim to a monopoly of hunting, together 
with supreme and exclusive jurisdiction. The disorders 
of Stephen's reign lowered the Crown's authority, and 
Henry II. found the forests much curtailed. He had no 
intention to acquiesce in this, but it was not till 1184 that 
he attempted, by the Assize of Woodstock, to formulate 
the rules of the forest law. In this sphere, as in so many 
others, Henry II. built on foundations laid by his grand- 
father. John's attitude to the forest laws was not consistent. 
The monk of Barnwall relates how, in 12 12, John allowed 
some relaxation in the severity of the forest code.^ More 
characteristic of his normal attitude was the order issued 
on 28th June, 1209, that hedges should be burned and 
ditches levelled, so that, w^hile men starved, the beasts 
might fatten upon the crops and fruits.^ 

Man wood, Booi of the Forests (1598) ; Coke, Fourth Institute^ 289-317 ; Lieber- 
mann, Constitutiones de Foresta (1894) ; G. J. Turner, Preface to Select Pleas of 
the Forest (1901) ; and an article in the Edinburgh Review for April, 1902. 

1 Select Charters, 156. "Select Pleas of the Forest, xiii. 

3 See W. Coventry, II. 207, and Stubbs' Preface, Ixxxvii. 

• R. Wendover, III. 227. This, however, is clearly a hostile account of the King's 
resumption of forest tracts illegally put under cultivation by way of purpresture. 



CHAPTER FORTY-FOUR 417 

III. Forest officials. The local magistrates who admin- 
istered the rest of England were excluded from the forests 
by a separate set of officials. At the head of this special 
organization was placed, in early times, the Forest Justiciar 
(called the chief forester in chapter 16 of the Carta de 
Foresta), whose duties were divided in the year 1238, after 
which there were two provinces separated by the river 
Trent.^ His appointment was permanent, and his duties, 
which continued between the eyres, were administrative 
rather than judicial. He had discretionary authority to 
release trespassers imprisoned for offences against the 
forest law.2 Under his general supervision each forest, or 
group of forests, was governed by a separate warden, aided 
by a number of petty officials known as foresters, whose 
duties were analogous to those of a modern gamekeeper, 
but with magisterial powers in addition. Wardens were 
of two classes — " the one appointed by letters patent under 
the great seal, holding office during the King's pleasure; 
the other hereditary wardens." ^ There was situated in or 
near each forest of any extent a royal residence which, in 
the Middle Ages, naturally took the form of a stronghold. 
It was convenient that the office of warden should be com- 
bined with that of constable of this neighbouring castle.^ 
" The wardens were the executive officers of the King in 
his forests. Writs relating to the administration of forest 
business, as well as to the delivery of presents of venison 
and wood, were in general addressed to them." ^ 

The office was one of authority and profit, usually paid 
in kind rather than by a salary. The warden often held 

^ See Select Pleas of the Forest ^ xiv. The permanent routine work performed by 
this functionary must not be confused with the intermittent duties of the Justices 
of Forest Eyres, although he was usually a member of the commission who went 
on circuit : e.g. chapter 1 6 of the Forest Charter speaks of the Chief Forester 
holding pleas of the forest. 

"^ Select Pleas, xv. ' Turner, in Select Pleas, xvii. 

* Engelard de Cigogne, for example, whose name appears in chapter 50, occupied 
this double position. Chapter 16 of Carta de Foresta forbids castellans to deter- 
mine pleas of the forests, thus strengthening the presumption that wardens were 
usually constables. 

^ Select Pleas, xix. 

2D 



4i8 MAGNA CARTA 

a fief by a tenure connected with the service, and enjoyed 
rights and perquisites always of a valuable nature, though 
varying with each forest. These were sufficient to provide 
him with an income adequate to his position, and to allow 
him to find the wages of his under-keepers, who ought 
thus to have been paid officials. Such was the theory; 
as matter of fact, the foresters, instead of receiving wages, 
paid large sums to the warden, and recouped themselves 
by extortions from the dwellers in their bailiwicks.^ These 
unpaid foresters were expressively said to " live upon the 
country." They may be classified in various ways, as, 
into riding and walking foresters, or into foresters 
nominated by the wardens, and foresters in fee. These 
last had vested interests which the Forest Charter was 
careful to respect; as, where chapter 14 reserved to them 
the right to take "chiminage," or way-leave, denied to 
other types of foresters. They might still enjoy, but not 
abuse, the " vested rights " reserved to them. 2 

With these professional gamekeepers there co-operated, 
in later times at least, several groups of unpaid magistrates 
appointed from the knights and freeholders of the district. 
Of these honorary officials, whose original function was to 
supply supplementary machinery for protecting the rights 
of the Crown, but whose position as county gentleman, with 
a stake in the district, led them also to act to some extent 
as arbitrators between the King and outside parties, there 
were three recognized kinds, (a) Towards the close of the 
twelfth century officers known as verderers (usually four for 
each forest) become prominent. They appear in the Carta 
de Foresta of 1217, but had not been mentioned in the 
Assize of Woodstock of 1 184. It is probable that the office 
was devised in the interval as a check on the warden *s 
power; just as the office of coroner had been instituted in 
the reign of Richard as a drag on the sheriff. In other 
important respects the duties of the verderers within the 
forests resembled those of coroners within the rest of the 
county. They were not royal employees, but local land- 
owners whose unpaid magisterial services were required 

* Se/ecf Pleas y xxi. ' The same chapter, however, fixed the rates of * ' chiminage. " 



CHAPTER FORTY-FOUR 419 

only on special occasions. They were responsible directly 
to the King, not to the warden ; and were appointed in the 
county court, their " election " taking place in accordance 
with the terms of the writ " de viredario eligendo." They 
attended the forest courts and swanimotes, and it appears 
from chapter 16 of Henry's forest charter that it was their 
duty to bring before the Justices in Eyre lists of all 
offenders indicted in the lower courts. These " rolls of 
attachment" were certified by their seals.^ (b) The 
Regarders were twelve knights appointed in each forest 
county to make tours of inspection every third year, finding 
answers to a series of questions known as the " Chapters of 
the Regard." In this way they reviewed the Crown's 
interests alike in " the venison and the vert " (the technical 
names for game and growing timber respectively), and 
reported upon all encroachments : upon hawks and falcons, 
bows and arrows, greyhounds and mastiffs (with special 
reference to " expeditation " or cutting of their claws), ^ and 
generally upon everything owned by private individuals 
likely to harm the beasts of the forest.^ (c) The Agistors 
are mentioned in the same clause of the Assize of Wood- 
stock which mentions the Regarders. Four knights were 
appointed to protect the King's interests in all matters 
connected with the pasturing of swine or cattle within 
the royal woods. For thirty days at Michaelmas, pigs were 
turned loose to feed on acorns and beech mast, on payment 
by their owners of a small fixed sum per head. The four 
knights were required to take note of sums thus due, known 
as "pannage," and to collect them at Martinmas.^ 

1 For the earliest notice of verderers see Se/ecf Pleas of the Forest^ xix. n. Their 
appointment in county court may indicate that they acted in some measure as a 
check on the professional foresters in the interests of the people generally, as well 
as a check on the warden in the interests of the King. Within the forest the 
warden, with the verderers and foresters, offered an exact parallel to the sheriff 
with the coroners and bailiffs (or Serjeants) in other parts of a county. 

^ See Carta de Foresta, c. 6. 

' After 1217, if not before, it was their duty to fix the number of foresters required, 
so that the inhabitants need not groan under a heavier burden than necessary. 

*In one document they were styled agistatores precii {Select Pleas ^ p. 1.), which 
suggests that fixing the rate was their chief duty. " Agist " was a general term ; 
it was apparently correct to speak of "agisting a wood," of "agisting cattle," and 
of ** agisting the money due." 



420 MAGNA CARTA 

Mention ought, perhaps, to be made of the private 
foresters also, whom owners of woods within the forests 
were obHged to appoint. These "wood wards," as they 
were sometimes called, while paid for by the owner of the 
wood, were expected to protect the King's interests. In 
particular, they must prevent trees from being destroyed 
or wasted : these formed shelter for the game. 

IV. Forest Courts. The judicial side of the forest 
system was developed in a manner equally elaborate. 
Three sets of tribunals must be distinguished: (i) The 
Court of Attachvients (or " view of attachments ") was a 
petty tribunal, the chief duty of which was the taking of 
evidence to be laid in due course before a higher court. 
Exceptionally, however, it had power to inflict fines for 
small trespasses against the "vert" — namely, for acts of 
waste not exceeding the value of fourpence. It met once 
in every forty days,^ which seems in practice to have been 
interpreted as once every six weeks, the meetings being 
always held on the same day of the week. 2 (2) Courts of 
Inquisitions, When a serious trespass was discovered, a 
special court was, in early days, immediately summoned. 
The foresters and verderers conducted the inquiry, but it 
was their right and duty to assemble the men of the neigh- 
bouring townships to help them. In strictness, all inhabi- 
tants might be compelled to attend. In practice, it was 
sufficient if four men and the reeve represented each of the 
four adjoining villages. Whenever a " beast " was found 
dead in the forest, twenty men had thus to assemble, to 
the neglect of their own affairs. In one district at least 
(Somerton) the definition of beasts of the chase extended 
to the ordinary hare ; and we read ^ how four townships 
sat in solemn judgment, and found " that the said hare 
died of murrain, and that they know of nothing else except 
misadventure," and how, this verdict not giving satis- 
faction, the townships were fined on the pretext that they 
were not fully represented. The real offence was their 
failure to disclose the culprit. Some alleviation of the 

' Car^a de Foresta, c. 8. ^Select Pleas of the Forest ^ xxx. 

^Select Pleas of the Forest, p. 42. 



CHAPTER FORTY-FOUR 421 

burden was effected when, at some date posterior to 12 15, 
special inquisitions were superseded by one general inquisi- 
tion, held at regular intervals (usually every six weeks), 
to cover all trespasses committed during the interval. 
These courts of inquiry (whether special or general) only 
" kept " pleas without " trying " them — that is to say, they 
received and recorded accusations, while judgment was 
reserved for the justices. (3) Courts of the forest justices 
in eyre. As the smaller courts, in the normal case, received 
verdicts and reports, without punishing the offences 
reported, it is evident that the whole system ultimately 
depended on the justices. Their eyres, however, were 
held at wide intervals — apparently once every seven years 
during the reign of Henry III. A full attendance of forest 
officials and of the public was summoned to meet them. 
The evidence, stored up as a result of the work of the 
smaller courts, supplemented by the Rolls of the Regard, 
was laid before the justices, who summarily judged " pleas 
of the vert," and "of the venison." These eyres came to 
be known as "Courts of Justice Seat," but not until long 
after the reign of John. No juries were present; the 
justices punished offenders already convicted by juries at 
a lower court. 

In addition, there should be mentioned two other kinds 
of assemblies which performed duties administrative rather 
than judicial, as these terms are now understood. (4) The 
regard, held once every three years — not by Crown officials, 
but by what was practically a jury of local knights — has 
already been referred to. These tours of inspection, some- 
time known as visitationes nemorum,^ and sometimes even 
as " views of expeditation," were of great practical import- 
ance. The resulting report was placed before the justices 
of eyre as evidence of forest trespasses. (5) Three times 
every year, meetings, known from an early date as " Swani- 
motes," were held to regulate the pasturing of swine and 
cattle within the royal woods. A fortnight before Michael- 
mas, the agistors met the foresters and verderers to provide 
for the agisting of the King's woods, a process that lasted 

'^ DialoguSy I. xi, E. 



422 MAGNA CARTA 

for thirty days — fifteen before and fifteen after Michaelmas. 
At Martinmas the agistors collected the pannage in pres- 
ence of the same officials. A third meeting was held in 
June to make arrangements for excluding cattle from the 
King's woods when the deer were fawning, but at this the 
presence of the agistors were not required.^ 

The Carta de Foresta applies to these assemblies, and 
to none other, the name " Swanimotes " — a word whose 
correct use has been the subject of much discussion. Its 
authoritative appearance in 12 17 affords strong evidence of 
the original sense which it bore. In later days, however, 
it was more loosely used, being applied to inquisitions and 
also to courts of attachment. This has led to much con- 
fusion, while its derivation has also been the subject of 
discussion. Bishop Stubbs derived it from "swain," on 
the supposition that courts so called were resorted to by 
swains or country people. As matter of fact (whatever 
doctrine may be correct philologically), these assemblies 
were connected, not with "swains," but with "swine." 
The peasantry were specially exempted; whereas all three 
meetings sought to regulate the entry or exclusion of pigs 
from the woods. 

V. Chases, Parks, and Warrens. Forests were neces- 
sarily royal monopolies and must on this and other grounds 
be distinguished from three things with which they are apt 
to be confused, (i) A " chase " was a district, once a royal 
forest, which had, without any formal act of disafforesta- 
tion, been granted by the King to a private individual. 
The result was to transfer the monopoly of hunting to the 
grantee, while modifying the nature of the rights trans- 
ferred. The full force of the forest laws was abated, 
although the extent and direction of this diminution was 
nowhere strictly defined, but varied from chase to chase. 
Such provisions of the forest law as continued to be binding 
were no longer enforced by royal officials and royal courts, 
but by those of the magnate, who obtained a franchise over 

^ It is stated in Carta de Foresta (1217) that only verderers and foresters need be 
present at the June moot, and the same officers, with the agistors, at the two 
others. The public were exempted. 



CHAPTER FORTY-FOUR 4^3 

the chase and the royal beasts it contained. ^ (2) A " park " 
was any piece of ground enclosed with a paling, or hedge, 
whether with the object of protecting wild beasts or other- 
wise, and the right to effect this was quite independent of 
royal grant. If the owner of a manor in the near neigh- 
bourhood of a royal forest wished to keep deer of his own, 
which he might kill at pleasure, whether for sport or for 
food, without infringing the forest laws, he had to stock 
an enclosure with beasts legally his own, and to keep them 
under conditions which made confusion with the King's 
deer impossible.^ In 1234 the barons asserted their right 
to keep private gaols for poachers taken in their parks 
{in parcis et vivariis suis), but the King refused to allow 
this.^ (3) A "warren," which might belong either to the 
King or to any private owner, carried with it exclusive 
rights of hunting within its bounds all wild animals, 
except those technically defined as "beasts of the forest."* 
In practice it chiefly embraced hares and foxes.^ Neither 
parks nor warrens were protected by the forest law, but 
by that part of the common law which related to theft and 
trespass. This was, however, vigorously administered, 
passing gradually into the modern Game Laws.^ Dr. 
Stubbs held, apparently, too narrow a conception of warren, 
when he read it in its modern sense of " a rabbit warren." '' 
It was a tract of land wherein exclusive rights of hunting 
lesser game (together with rabbits and other vermin) were 
preserved to its owner. The King might, and did, have 
his warrens and warreners, just as any subject might ; and 
these royal warreners might inflict cruel injustice on the 
common people ; ^ but their power was less than that of 
foresters, as they were dependent on the common law. 
The forest code did not apply even to royal warrens.^ 

^Select Pleas of the Forest ^ cix. et seq. ^Ibid.^ cxvii. 

^ Statute of Merton, c. Ii. * Select Pleas of the Forest , cxxiii. 

^ Ibid. , cxxviii. -cxxix. Wild cats should perhaps be added. 

'^ See W. S. Holds worth, History of English Law, I. 346. 

■^ See Select Charters, 552. 

* Some of these Magna Carta sought to guard against. See c. 48. 

'Rights of hunting were conferred on subjects over territory not their own. 
Richard I. granted permission to Alan Basset to hunt foxes, hares, and wild cats 
throughout the realm. Round, Ancient Charters, No. 18. 



424 MAGNA CARTA 

VI. Forest Rights and Forest Grievances. It is not 
difficult to understand the store which the Kings of Eng- 
land set upon their forests. They prized them not merely 
as a pleasure ground, but also as a source of revenue. 
Fines and amercements, individually small, but amounting 
to a large sum in the aggregate, flowed into the Exchequer. 
Great as were the pleasure and the profit to the King, the 
burden and loss inflicted upon the people were greater out 
of all proportion. Not only were the interests of forest- 
dwellers sacrificed to the royal hunting, not only were legal 
fines rendered trebly burdensome by the galling and waste- 
ful manner of their collection ; but the men who paid them 
were victims of illegal exactions in addition. These griev- 
ances may be considered under seven heads : — (i) The 
extent of the forests. The Crown constantly strove to 
extend the boundaries; the people to contract them. The 
Conqueror and Ruf us each " afforested " wide tracts of 
land, of which the New Forest is only one example. In 
the Charter of iioo, Henry bluntly declared: — "I retain 
in my hand, by the common consent of my barons, my 
forests as my father had them." This consent of the 
magnates would suggest that the barons were allowed some 
share in royal rights of hunting, which led them here to 
make common cause with the Crown. Henry, as matter 
of fact, retained not only the forests of his father but those 
of Ruf us, and created new ones of his own.^ Stephen, 
while retaining the forests of the two Williams, renounced 
those added by Henry I. Under Henry 11., afforestation 
began anew.^ The words of the Great Charter leave no 
doubt that Henry of Anjou had extended the boundaries 
of Stephen's forests; and that both Richard and John 

* This is implied in the terms of Stephen's Oxford Charter. An example of an 
act of afforestation by Henry is given in Select Pleas, 45, which shows how ** a 
district could be afforested in a moment by the mere word of the monarch ; it took 
centuries to free it from the royal dominion. " See Edinburgh Review, vol. cxcv. 
(1902), p. 459. Even the Forest Charter (cc. i and 3) admitted the Crown's right 
to afforest woods on its own demesne — reserving, indeed, common of pasture to 
those with legal rights thereto. 

^The policy of Henry I., Stephen, and Henry H. respectively" is well illustrated 
by the case of Waltham forest ir. Essex. See Round, Geoffrey de Martdeville, 377-8. 



CHAPTER FORTY-FOUR 425 

carried the process further, bringing within the circle of 
the cruel law, not only waste and moor, but also " woods " 
belonging to private owners. These royal encroachments 
were the more oppressive, occurring in an age when popula- 
tion was increasing and seeking outlet in the reclamation 
of waste places on the debateable land that surrounded the 
forests. The vagueness of the frontier aggravated this 
grievance, as it was often difficult for the honest reclaimer 
of barren land to know when he was committing a trepass 
for which he might be punished by a crushing fine.^ 

(2) The monopoly of hunting. The Crown also made 
the law more stringent. The Crown's insistence on a 
strict monopoly may not seem an important grievance, but 
it was one likely to exasperate the sport-loving nobles. 
John, in 1207, admitted that his barons still retained some 
share in the hunting of royal beasts.^ These rights were 
formally recognized and defined in 12 17. Chapter 11 of 
the Carta de foresta allowed each magnate when passing 
through a forest to take one or two beasts at sight of the 
foresters, or, if these officials could not be found, then after 
blowing a horn to show that nothing underhand was being 
done. 

(3) Interference with rights of property. Freeholders 
whose lands lay in districts which the King was successful 
in afforesting, retained their freeholds, but their proprietary 
rights lost half their value. They could not root out trees, 
to clear their own lands for cultivation ; for that was to 
commit an assart. They could not plough up waste land 
or pasture (even outside the covert) and turn it into arable, 
nor build a mill, nor take marl or lime from pits, nor make 
fishponds, nor enclose any space with hedge or paling ; for 
these acts of ownership were purprestures or encroachments 
on the King's rights. They could not destroy a tree or 

^ This group of grievances was partly remedied by chapters 47 and 53 of Magna 
Carta. The former provided for the summary disafforestation of all districts made 
forests by -Richard and John, while the latter showed a more judicial spirit in the 
undoing of the similar work effected by their father. The Carta de Foresta of 12 17 
contained clauses which took the place of these somewhat crude provisions. 

2 See Rot. Claus., I. 85 (dated nth June, 1207). 



426 MAGNA CARTA 

lop off branches (except under stringent conditions), with- 
out being guilty of waste.'^ They could not agist their 
woods until a fortnight after Michaelmas, when the agisting 
of the King's demesnes was over (thus reserving for him 
the best market and " pannage dues ").^ Heavy tolls were, 
under the name of "chiminage," taken from carts and 
sumpter-horses passing through the woods. The Great 
Charter endeavoured to strike at the abuse of these Crown 
rights by providing machinery for the abolition of " evil 
custorns." The Carta de foresta entered more into detail. 
Not only were past trespasses of all three kinds — wastes, 
purprestures, and assarts — to be condoned, but the law 
was altered for the future. The long list of purprestures 
was curtailed : it was made lawful for a man to make (on 
his own freehold in the forest) mills, ponds, lime pits, 
ditches, and arable lands, provided these were not placed 
within the covert and did not infringe on any neighbour's 
rights.^ He might also keep eyries for breeding falcons 
and other birds of prey, and take honey found on his own 
ground — rights previously denied.^ 

(4) Interference with the pursuits of the poor. If the rich 
suffered injury in their property, the poor suffered in a 
more pungent way : stern laws prevented them from 
supplying three of their primary needs ; food, firewood, and 
building materials. On no account could they kill deer; 
while difficulties surrounded the taking of timber from the 
woods.^ It is true that even the Assize of Woodstock 
allowed them the privilege of " estovers " (that is of cutting 
firewood), but only under stringent rules. All waste was 
prohibited ; and " waste " was a wide word covering, not 
merely wanton destruction, but all sales or gifts of logs; 
while nothing could be taken except at sight of the forester, 

^For detailed information as to wastes, purprestures, and assarts with their 
ascending scale of penalties, see Seka P/eas, Ixxxii. 

"See Assize of Woodstock, article 7. *See Car^a de Foresta, c. 12. 

^Ibid.^ c. 13; another clause (c. 14) forbade ordinary foresters to exact 
chiminage, and fixed the rates payable to those with vested rights at two pennies 
for each cart per half-year, and one half-penny for each sumpter horse. 

^ See Assize of Woodstock, article 3. 



CHAPTER FORTY-FOUR 427 

whose consent would not be procured for nothing. This 
may be illustrated from a period sixty years later than 
John's reign : Hugh of Stratford, who paid two and a half 
marks of yearly rent to the Warden for his post, recouped 
himself by taking " from the township of Denshanger for 
every virgate of land one quarter of wheat in return for their 
having paling for their corn and for collecting dead wood 
for their fuel in the demesne wood of the lord king; and 
from the same town he took from every house a goose and 
a hen in every year." ^ A sum might be taken for every 
load of sticks; the men of Somerset complained that 
" from the poor they take, from every man who carries 
wood upon his back, sixpence." ^ Dwellers within or near 
the forests were prohibited from keeping dogs, unless 
their value for other pursuits, as well as for hunting, was 
destroyed by the removal of three claws of the forefoot.^ 
Nor could they keep bows or arrows, so necessary for their 
protection amid the dangers that beset the inhabitants of 
lonely districts throughout the Middle Ages.^ No tanner 
or bleacher of hides could reside in forest districts, unless 
within a borough.^ 

(5) Attendance at forest courts. At every inquisition, 
representatives from neighbouring townships must be 
present, while the entire population were compelled to 
meet the justices on their forest eyres. Henry H. enforced 
this duty upon those outside the boundaries as well as on 
those within. The Assize of Woodstock admits no exemp- 
tion for earl or baron, for knight or freeholder, nor even 
(according to one version) for archbishop or bishop. The 
double duty of doing suit at county courts and forest courts 
meant double loss of time, and double risk of amercement. 
This nth Article of the Assize was repealed by chapter 44 
of Magna Carta, which restricted the obligation to denizens 
of the forests, a concession confirmed in 1217.^ 

1 See Seka Pleas, 123 (6 Edward I.). 

"^ Select Pleas ^ (127 (1278-9). This was a heavy rate, the more remarkable in 
face of the provisions against "chiminage" in Carta de Foresta, c. 14. 
^ Assize of Woodstock, article 14. Cf. Carta de Foresta, c. 6. 
^ Ibid,^ article 2. ^ Ibid., article 15. *See Carta de Foresta, c. 2. 



428 MAGNA CARTA 

(6) Fines and punishments. Frequent exactions ground 
down the dwellers in royal forests to abject poverty. If 
they failed to attend one of the numerous inquisitions or 
to disclose the guilty poacher, they paid a fine. If they 
gave false information; sold or gave away timber; kept 
grey hounds or mastiffs, which had not been " lawed, " 
they paid a fine.^ If a bow or arrow were found in their 
keeping ; if they committed any one of the numerous forms 
of waste or trespass, they paid a fine. 

The Northampton Eyre Roll of 1209 illustrates how a 
township might suffer severely for no fault of their own. 
" The head of a hart recently dead was found in the wood 
of Henry Dawney at Maidford by the King's foresters. 
And the forester of the aforesaid Henry is dead. And 
because nothing can be ascertained of that hart, it is 
ordered that the whole of the aforesaid town of Maidford 
be seized into the King's hand, on the ground that the 
said Henry can certify nothing of that hart." ^ There was 
a strong inducement to find someone guilty. 

In certain cases Henry II. would not accept a fine, but 
inflicted mutilation upon violators of the King's monopoly. 
It was often better to kill a fellow-man than a boar or stag. 
Article i of the Assize of Woodstock announced that the 
full rigour of the laws would be enforced, as under Henry I., 
while article 12 laid down more definitely that sureties 
would only be accepted twice. For the third offence 
nothing would suffice save the body of the offender. John's 
Magna Carta made no regulation on this head; but 
chapter 10 of the Carta de foresta in 12 17 conceded that 
no one should henceforth lose life or limb for such offences. 
The culprit should lie in prison for year and day, and 
thereafter find sureties for his good behaviour, or be 
banished the realm. 

(7) Arbitrary government and illegal exactions. If the 
laws of Henry's code were stringent and the legal pay- 

^ It had been the practice to exact an ox in reparation of such transgression, thus 
leaving the peasant without means of tilling his land. The Forest Charter (c. 6) 
limited the fine to 3s. 

2 See Select Forest Pleas y p. 4. 



CHAPTER FORTY-FOUR 429 

ments onerous, it was a worse evil that the law could be 
defied by Crown officials, and that payments of a perfectly 
illegal nature might be freely exacted. Within the forest 
bounds, the peasantry lived in daily fear of the discretionary 
authority of officials, whose most unreasonable wishes they 
dared not oppose. Sometimes a local tyrant established a 
veritable reign of terror. This happened in the forest of 
Riddlington under Peter de Neville, as the records of the 
Rutland Eyre, held in 1269, disclose. One item, taken 
almost at random from the long list of his evil deeds, will 
suffice : " The same Peter imprisoned Peter, the son of 
Constantine of Liddington, for two days and two nights 
at Allexton, and bound him with iron chains on suspicion 
of having taken a certain rabbit in Eastwood; and the same 
Peter the son of Constantine, gave two pence to the men of 
the aforesaid Peter of Neville, who had charge of him, to 
permit him to sit upon a certain bench in the gaol of the 
same Peter, which is full of water at the bottom." ^ Other 
examples are only too abundant. In 1225, Norman Samson, 
a petty official of the forest of Huntingdon, put men to 
the torture without cause, and only released them from 
their torments in return for heavy bribes. If such things 
could happen after the Charters of 12 15 and 1217, it is not 
likely that foresters were more merciful before. John was 
always too indifferent or too busy to redress such wrongs. 
The only guarantee against their recurrence was that honest 
officials sTiould be selected. Chapter 45 of Magna Carta, 
which tried to effect this, was withdrawn in 12 16. 

Some good must have resulted from chapter 16 of the 
Forest Charter, which forbade wardens to hold pleas of 
the forest. This prevented wardens from being judges in 
their own cause; but their arbitrary acts continued to be 
plentiful under Henry III., as has been already shown. 
Sixty years after Magna Carta, the men of Somerset com- 
plained that "foresters come with horses at harvest time 
and collect every kind of corn in sheaves within the bounds 
of the forest and outside near the forest, and then they 
make their ale from that collection, and those who do not 

^ Select Pleas ^ 50. 



430 MAGNA CARTA 

come there to drink and do not give money at their will, 
are sorely punished at their pleas for dead wood, although 
the King has no demesne; nor does anyone dare to brew 
when the foresters brew, nor to sell ale so long as the 
foresters have any kind of ale to sell; and this every 
forester does year by year to the great grievance of the 
country." ^ Each one of these abuses had been forbidden 
by chapter 7 of the Carta de foresta, which had prohibited 
the making of "scotale" and the collection of corn, lambs, 
and pigs. Such rules were easier to enunciate than 
enforce. 

VII. Later History of Forests and Forest Laws. The 
Forest Charter signally failed to secure a pure administra- 
tion of the law; but two ameliorating processes were at 
work. The long struggle to define the boundaries ended, 
in the reign of Edward II., in the defeat of the King, who 
consented to the frontier being drawn to suit the barons.^ 
Within these restricted limits, time and the progress of 
civilization softened the severity of the forest code, many 
customs becoming obsolete.^ Charles I. made an ill-judged 
attempt to revive some of the Crown's long-forgotten rights. 
Justice-seats were held by the Earl of Holland, accompanied 
by amercements and attempts to extend the forest bounds.'* 
The result was a drastic act of the Long Parliament, limiting 
them to their old extents.^ This statute, however, abolished 
neither the forests, the forest laws, nor the forest courts. 
After the Restoration a Justice-seat actually took place 
pro forma before the Earl of Oxford. Blackstone declares 
this to be the last ever held,^ although the offices of justice 
and warden of the forests were not abolished till 181 7."^ 
The forests, much curtailed in extent, are still Crown pro- 
perty, now administered in the interests of the public by 

^Select Pleas ^ 126. -See infra, under c. 47. 

^"Assz'sa et consuetudines forestae,^^ issued by Edward I. in 1 278, although 
declaratory, may have done something towards curtailing discretionary authority. 
Statutes of Realniy I. 243 ; Bemont, Charles^ Ixv. 

*See S. R. Gardiner, Hist. Engl., VII. 363, and VIII. 282. 
* 16 Charles I. c. 16. ' CompientaHeSy III. 72. 

' By 57 George HI. c. 61. 



CHAPTER FORTY-FOUR 431 

Commissioners of Woods and Forests.^ The operation of 
the common law is, of course, no longer excluded from 
their confines, the old antithesis between forest law and 
the law of England being a thing of the past.^ 



CHAPTER FORTY-FIVE. 

Nos non faciemus justiciarios, constabularios, vicecomites 
vel ballivos, nisi de talibus qui sciant legem regni et earn 
bene velint observare. 

We will appoint as justices, constables, sheriffs, or bailiffs 
only such as know the law of the realm and mean to observe it 
well. 

The object of this plainly worded clause was to prevent 
the appointment of unsuitable men to responsible posts 
under the Crown. The list of officers is a comprehensive 
one — justices, sheriffs, constables and bailiffs — embracing 
all royal ministers and agents, both of the central and of 
the local government, from the chief justiciar down to the 
humblest serjeant.^ This clause was directed in particular 
against John's foreign favourites such as the Poitevin 
Bishop of Winchester, Peter des Roches, who had wielded 
the authority of chief justiciar in 12 14 when the King was 
abroad,* or such as Engelard de Cigogne, stigmatized by 
name in a later part of Magna Carta. ^ Such men had no 
interests at stake in England, and little love for its 
customs and free traditions. In future John must choose 
a different type of servants, avoiding all such unscrupulous 
men, whether Englishmen or foreigners, as were ready to 
break the law in their master's interests or their own. 
But what class were to fill their places ? 

Bishop Stubbs credits the framers of the Charter 

^ In virtue of a series of Acts of which 14-15 Victoria c. 42 is the latest. 
^ See Stephen, Commentaries, II. 465-6. 

' Constable and bailifif are discussed sjipra, c. 24, and shown to include forest 
magistrates, supi-a^ c. 44. 

* See supra, p. 30, and cf. Blackstone, Great Charter, viii. 
^ See c. 50. 



432 MAGNA CARTA 

with an intention to secure the appointment of men well 
versed in legal science : " on this principle the steward of 
a court-leet must be a learned steward."^ The clause of 
Magna Carta, however, refers to royal nominees, not to the 
officers appointed by mesne lords to preside over their 
feudal courts. The barons appointed their own stewards 
and bailiffs, and had no wish to hamper their own freedom 
of choice; but only that of the King. Further, the barons 
did not desire that John should employ men steeped in legal 
lore, but plain Englishmen with a rough-and-ready know- 
ledge of insular usage, who would avoid arbitrary acts con- 
demned by the law. The barons at Runnymede desired 
precisely what the council of St. Albans had desired on 
4th August, 1 2 13, when it issued formal writs to sheriffs 
and foresters to observe the laws of Henry I. and abstain 
from unjust exactions ; ^ and these laws of Henry werei 
but the laws of Edward Confessor (or, in reality, of Canute)] 
slightly amended. 

The attitude of John's barons was the same as that ofj 
Henry's barons, when the latter declared, in 1234, inj 
emphatic terms, that they did not wish the laws of Eng-J 
land to be changed.^ They were far from desiring to be! 
governed by ministers deeply versed in the science andl 
literature of jurisprudence, since these would necessarilyj 
have been churchmen and civilians. 

This well-meaning provision of Magna Carta disappeare< 
in 1 2 16 (without any comment in the so-called "respiting 
clause "). Even if it had remained intact, it would not hav< 
effected much, in the absence of adequate machinery t( 
ensure its enforcement. In promising the appointment oi 
such ministers as knew the law and meant to keep it, John] 
remained sole judge of the men appointed and their inten- 
tions. The clause indicated no standard of fitness, no 
neutral arbitrator to decide between fit and unfit,^ and no 

^ Const. Hist., I. 578 n. «Cf. supra, p. 28. 

' '^Nolunt leges Anglie mutare que usitate sunt et approbate.^' See Statute of 
Merton, c. 9. 

^ It would have been a notable anticipation of modern constitutional theory if the 
barons in 121 5 had referred such questions to the decision of the Commune 
Concilium summoned as in c. 14 (g.v.). 



CHAPTER FORTY-FIVE 433 

sanction to enforce compliance on an unwilling King. 
Half a century later, the Provisions of Oxford gave proof 
of some advance in political theory. They contained an 
expedient, crude enough it is true, for constraining royal 
officials to keep the law : forms of an oath of office to be 
taken by castellans and ministers of all grades were care- 
fully provided.^ Even this was only a first step towards 
settling a problem not completely solved until the 
modern doctrine of ministerial responsibility was firmly 
established.^ 



CHAPTER FORTY-SIX. 

Omnes barones qui fundaverunt abbatias, unde habent 
cartas regum Anglie, vel antiquam tenuram, habeant earum 
custodiam cum vacaverint, sicut habere debent. 

All barons who have founded abbeys, concerning which they 
hold charters from the kings of England, or of which they have 
long-continued possession, shall have the wardship of them, 
when vacant, as they ought to have. 

Religious houses of various orders (abbeys, priories, and 
convents), which had increased rapidly in number since 
the reign of Henry I., fell naturally into two classes, 
according as they had been founded by the King or by 
private individuals. The King or the great baron, in 
bestowing lands on a religious foundation, reserved, either 
expressly or by implication, valuable rights of property : 
of these the control over the election of the abbot or prior, 
together with the wardship of the fief during vacancies, 
were the most important. King John, while by his charter 
to the clergy he renounced control over election of bishops, 
reserved his rights of wardship; and the barons insisted 
that the proprietary rights of mesne lords who had founded 
religious houses, should also be respected. John, however, 

^ See Select Charters^ 388-391, and Madox, II. 149, with authorities there cited. 

^ Prof. Adams seems to make too much of this chapter {Origin, 259-260). It is 
only a vague promise to employ honest officials : it confers no constitutional veto 
upon anyone. Had the function of defining fit ministers been conferred on the 
Common Council, it would have been a notable innovation. 

2 E 



434 MAGNA CARTA 

wherever he had any plausible pretext, usurped the ward- 
ship over private foundations. It would appear, from the 
terms of a later chapter,^ that in 12 15 the Crown actually 
held in ward certain abbeys founded by mesne lords. The 
present chapter looks to the future, forbidding new usurpa- 
tions of this nature. 

In reissues of the Charter verbal changes occur, but it is 
not clear that they imply changes of substance. In 12 16 
the words " and as it has been above declared " were added, 
implying that the rights of mesne lords were to be restricted 
by the rules previously laid down in chapter 5, as to ward- 
ship — rules particularly applied to the lands of bishoprics 
and religious houses in 12 16 by a clause which had no 
parallel in John's Charter.^ In 12 17 three other small 
changes tend to define and perhaps to widen the scope of 
the clause. The " barons who have founded abbeys " 
become " the patrons of abbeys " ; royal " charters " 
become more explicitly " charters of advowson " ; " ancient 
tenure " is expanded into " ancient tenure or possession." ^ 
These alterations seem to indicate an effort towards greater 
verbal accuracy, and do not involve any change of principle. 
It should, perhaps, be noted, however, that the words 
" patroni " and " de advocatione," occurring in 12 17, contain 
a tacit assertion of lay patronage of which there was no hint 
in 1215 ; but it would not be safe to conclude from this alone 
that there had been any change of attitude on the question 
of canonical election. 

The object of this chapter was to define the relations 
between the King and the barons as to wardship, not those 
between the lay and ecclesiastical authorities as to rights of 
appointment. It seems to have made little difference, if 
any, in practice: Henry III. never observed in its fullness 
the doctrine here enunciated, but claimed wardship over 
abbeys and priories founded by earls and barons on their 
own fiefs.** On the closely allied question of lay patronage, 

*See m/ra, c. 53. 2Qf^ sn/>ra, p. 212. 

'See Appendix for final form in charter of 1225. 

*See Petition of Barons, c. 11 {Sel. Chart., 384) ; Maitland, Sel. Pleas Man. 
Courts, Ixxvii. For the practice in Normandy, see authorities cited by Adams, 
Origin, 246 n. 



CHAPTER FORTY-SIX 435 

not directly raised in any version of Magna Carta, Henry's 
practice seems not to have differed from his father's. John 
interfered freely between abbeys and their founders. On 
i6th August, 1 200, he granted to William Marshal the 
privilege of bestowing the pastoral staff of Nuthlegh Abbey, 
which lay within that earl's fief ; this shows that he forbade 
appointments without royal licence. ^ The barons in 1258 
protested against similar conduct on the part of Henry HI.^ 



CHAPTER FORTY-SEVEN. 

Omnes foreste que afforestate sunt tempore nostro, statim 
deafforestentur; et ita fiat de ripariis que per nos tempore 
nostro posite sunt in defenso. 

All forests that have been made such in our time shall forth- 
with be disafforested; and a similar course shall be followed 
with regard to river-banks that have been placed " in defence " 
by us in our time. 

An analogy may be traced between the prerogatives of 
hunting and of falconry here brought together. William 
the Conqueror claimed wide and ill-defined rights to 
" afforest " whole districts at his discretion ; and for pro- 
tecting his preferential rights of fowling, whole rivers might 
be placed " in defence." The parallel must not be pushed 
too far. River-banks were preserved only for such limited 
period as was covered by the King's express command; 
and, although wardens were appointed to guard them,^ the 
Crown never established such absolute control over the 
banks of rivers as it did within districts declared 
" afforested." 

The provision of the present chapter, defining what river- 
banks might be " defended," disappeared, together with the 

^See New Rymei\ I. 8i. John had also interfered "in the time of the 
interdict " with what Robert fitz Walter considered his rights of patronage over 
Binham Priory (a cell of St. Albans). See J. H. Round, Eng. Hist. Rev., XIX. 
710-11. 

2 Petition of Barons, c. ii {Sel, Chart,, 384). 

* Mention of these officers is made in c. 48. The phrase *' in defence" is 
explained supra, pp. 301-3. 



436 MAGNA CARTA 

relative clause of chapter 48 {'' ripariis et earum custodi- 
hus")y from the reissue of 12 16; but, in the "respiting" 
clause there was promised further deliberation, which 
resulted in its replacement in chapter 20 of the final version 
of Magna Carta.^ 

More attention is usually paid to the bearing of the 
present chapter upon the limits of the forests. John, if he 
had created no new forests, had extended the boundaries of 
the old ones. All such encroachments are to be immedi- 
ately given up. This summary redress should be contrasted 
with the more judicial procedure appointed by chapter 53 
for determining encroachments made by Henry II. and 
Richard. A somewhat similar distinction is also to be 
found in the corresponding provisions of the Forest Charter 
of 12 17 (chapters i and 3); but the line is there differently 
drawn. Chapter i of the Carta de foresta extends the 
summary methods of redress to the disafforesting of all 
forests created by Richard as well as those created by John. 
The terms of the later document are also more detailed. 
Both seem to be directed against encroachments on the 
rights of landowners, affording no protection to the poor. 
While they deny the Crown's right to afforest private woods 
" to the damage of any one " (that is, of barons or free- 
holders owning them), they admit the legality of past acts, 
whether of Henry, of Richard, or of John, in afforesting 
Crown lands, subject always to a saving clause in favour of 
freeholders in right of common of pasturage. ^ 

Even if Henry III. had cordially co-operated with his 
barons to disafforest all tracts of ground afforested by Henry 
II. and his sons, difficulties of definition would still have 
made the task tedious. As it was, struggles to settle boun- 
daries embittered the relations between Crown and Parlia- 
ment, until the very close of Edward Plantagenet's reign. 
Only the leading steps in the slow process by which the 
opposition triumphed need here be mentioned. 

^ Cf. supra, p. 147. 

*G. J' Turner, Select Pleas of Forest^ xciii., points out that although forests 
included open country as well as woods, yet Carta de foresta spoke only of 
** woods" in this connection. 



I 



CHAPTER FORTY-SEVEN 437 

After the issue of Carta de fores ta on 6th Nov ember y 1217,^ 
machinery was set in motion, in obedience to its terms, 
to ascertain the old boundaries and disafforest recent 
additions. The work of redress continued for some years, 
suffering no interruption from the issue of the new royal 
seal at Michaelmas, 1218.^ In face of many difficulties, 
only slow progress was possible. More strenuous efforts 
followed the reissue of the Charters on nth February, 
1225 ; 3 for, five days later, justices were appointed to make 
new perambulations, which resulted in the disafforestation 
of wide tracts. Henry considered himself, and with some 
reason, unjustly treated by these justices, or by the local 
juries on whose verdicts they had relied. After he had 
proclaimed himself of age in January, 1227, he challenged 
their findings; and this has been misinterpreted as an 
attempt to annul the Forest Charter.* 

Some of the knights who had perambulated the forests 
were persuaded or coerced into acknowledging that they 
had made mistakes; and, after further inquiry, Henry 
restored the wider bounds. His reactionary measures went 
on for two years ; but thereafter the frontiers were fixed, in 
spite of many complaints, until strong pressure compelled 
Edward I. to reopen the whole question. Perambulations 
in 1277 and 1279 produced apparently no results. Renewed 
complaints were followed by new perambulations in 1299- 
1300, the reports of which were laid before a Parliament at 
Lincoln on 25th January, 1301. The King on 14th Febru- 
ary confirmed the Forest Charter, and agreed to the reduced 
boundaries as defined by the most recent inquests. Edward 
had acted under constraint : on this plea he subsequently 
obtained from Pope Clement V. a bull, dated 29th Decem- 
ber, 1305, revoking all concessions made at Lincoln.^ The 
Crown seemed thus to triumph once more ; but the barons 
refused to accept defeat, forcing upon Edward H. the 
acceptance of the narrower bounds as defined at his father's 

^Cf. supra, p. 146. ^Cf. sup7'a, p. 153, and see Selecf Fleas, xcv. 

^Cf. supra, p. 154. *Cf. Select Pleas, xcix. ; and see also supra, p. 156. 

^ See Select Pleas, cv. Mr. Turner's account of Edward's conduct may be com- 
pared with the estimate of M. Bemont, Chart es, xlviii. 



438 MAGNA CARTA 

Parliament in 1301. This settlement was confirmed by 
statute in the first year of Edward III.^ and that King 
failed in all attempts to escape from its provisions. Thus 
the authoritative pronouncement made in 1301 by the 
Parliament of Lincoln furnished the basis on which the 
protracted controversy was finally determined.^ 

The further history of the forest boundaries may be told 
in a few sentences. No changes were made until the six- 
teenth century. When Henry VIII. afforested the districts 
surrounding Hampton Court in 1540, he did so by consent 
of Parliament, and on condition of compensating all who 
suffered damage. The same course was followed by 
Charles I. in creating the Forest of Richmond in 1634. 
Finally, as a result of attempts of the Stewarts to revive 
obsolete rights, a statute of the Long Parliament, reciting 
the Act of 1327, " ordained that the old perambulation of 
the forest in the time of King Edward the First should be 
thenceforth holden in like form as it was then ridden and 
bounded." ^ 



CHAPTER FORTY-EIGHT. 

Omnes male consuetudines de forestis et warennis, et de 
forestariis et warennariis, vicecomitibus et eorum ministris, 
ripariis et earum custodibus, statim inquirantur in quolibet 
comitatu per duodecim milites juratos de eodem comitatu, 
qui debent eligi per probos homines ejusdem comitatus, et 
infra quadraginta dies post inquisicionem factam, penitus, 
ita quod numquam revocentur, deleantur per eosdem, ita 
quod nos hoc sciamus prius, vel justiciarius noster, si in 
Anglia non fuerimus.'* 

All evil customs connected with forests and warrens, foresters 
and warreners, sheriffs and their officers, river-banks and their 

1 1 Edward III., stat. 2, c. i. 

^ See Select Pleas ^ cvi. There was one exception. On 26th December, 1327, 
Edward III. had to submit to further disafforestations in Surrey. 

3 16 Charles I. c. 16. 

^ The last sixteen words, inclusive of ^* per eosdem" appear at the foot of both of 
the Cottonian versions of Magna Carta. Cf. supra, p. 166. 



CHAPTER FORTY-EIGHT 439 

wardens, shall immediately be inquired into in each county by 
twelve sworn knights of the same county chosen by the honest 
men of the same county, and shall, within forty days of the said 
inquest, be utterly abolished, so as never to be restored, provided 
always that we previously have intimation thereof, or our justiciar, 
if we should not be in England. 

This chapter is mainly, though not exclusively, a forest 
one. It provides in a sweeping and drastic manner for 
the abolition of " evil customs," three groups of which are 
specially emphasized : (a) those connected with forests and 
warrens (presumably royal warrens only), or with their 
officials ; (b) those connected with sheriffs and their subor- 
dinates ; and (c) those connected with river-banks and their 
guardians. The word " customs " is obviously here used 
in its wider sense, embracing all usages and procedure, 
whether specially connected with pecuniary exactions or 
not.^ The word " evil " is not defined, but machinery is 
provided for arriving at a definition. In each county a 
local jury of twelve knights was to be immediately chosen 
by " the good people " of that county, and these twelve 
received a mandate to hold a comprehensive inquest into 
" evil customs " : practices condemned by them were to be 
abolished within forty days of the inquiry, " so that they 
shall never be restored." 

At the end of the chapter appears a proviso that, before 
actual abolition, notice must be sent to the King, or, in 
his absence, to his justiciar. Although such intimation 
was necessary, both on grounds of policy and of ordinary 
courtesy, this clause is written (apparently as an after- 
thought) at the foot of two of the copies of the Great Charter. 

John lost no time in instituting machinery for effecting 
this part of the reforms. On the very day on which terms 
of peace were concluded at Runnymede, namely, on 19th 
June, 1 2 15, he began the issue of writs to sheriffs, warreners, 
and river bailiffs. Within a few days every one of these 
had been certified of the settlement arrived at, and had 
received commands to have twelve knights chosen in the 
first county court to make sworn inquest into evil customs.^ 

^ Contrast the more restricted meaning of the same word in c. 41. 

^See I^ot, PaL, I. 180, cited also Select Charters^ 306-7. Cf. supra, p. 42. 



440 



MAGNA CARTA 



The knights appointed seem to have taken a liberal view 
of their functions, claiming to share with the sheriffs the 
exercise of the whole executive authority of the county. 
Some warrant for these pretensions may be found in the 
terms of a second series of writs issued in the King's name 
on 27th June and following days. These were addressed 
to the sheriff and the twelve knights jointly, commanding 
them to make instant seizure of all who refused to take, as 
required in the previous writs, the oath of obedience to the 
twenty-five executors of the Charter.^ The revolutionary 
committee of the central government had thus, in each 
county, local agents in the twelve knights whose original 
duties had been to see evil customs abolished. 

The hatred to the forest laws is well illustrated by the 
iconoclastic spirit in which these knights set about the 
remedy of abuses. Moderate-minded men began to fear 
that sweeping changes would abolish the royal forests. 
Accordingly, the leading prelates issued a written protest 
that this chapter must be understood by both parties " as 
limited," and " that all those customs shall remain, without 
which the forests cannot be preserved." ^ What effect, if 
any, this protest had, is not known. The country was soon 
plunged in civil war, during the continuance of which 
neither side had leisure for the reform of abuses. In 12 16 
the subject was " respited " for future consideration, and in 
1 217 an attempt was made to specify in detail the evil cus- 
toms to be abolished. The dangerous experiment of leaving 
the definition to local juries in each district was not 
repeated. 

^Cf. infra^ c. 6i. 

*Cf. supra, p. 43. The text is given Rot. Claus., I'j John, m. 27 d. and N'ezv 
Rymer, I. 134. It runs in name of the archbishops of Canterbury and Dublin, 
and the bishops of London, Winchester, Bath, Lincoln, Worcester and Cov^entry, 
comprising (with one exception) those mentioned in the preamble to Magna 
Carta. For text, see Appendix. 



CHAPTER FORTY-NINE 441 



CHx\PTER FORTY-NINE. 

Omnes obsides et cartas statim reddemus que liberate 
fuerunt nobis ab Anglicis in securitatem pacis vel fidelis 
servicii. 

We will immediately restore all hostages and charters delivered 
to us by Englishmen, as sureties of the peace or of faithful service. 

A feature of John's system of government was the 
constant demand for hostages as guarantees of his subjects' 
loyalty. Such an expedient was, indeed, naturally resorted 
to in the Middle Ages upon special occasions, as, for 
example, to secure the observance of a recent treaty, or 
where the leaders of a rebellion, newly suppressed, had been 
spared on condition of future good behaviour. Thus the 
Conqueror, in 1067, during a forced absence from England, 
took with him Edgar Atheling and the Earls Morkere and 
Edwin. Such cases were, however, exceptional, until John 
resorted to such a policy, not merely in face of danger, but 
as a constant and normal practice in times of peace. 

John lived in his native England like a conqueror in the 
midst of a hostile race, keepmg sons and daughters in his 
clutches to answer for their parents' attempts at revolt. 
This ingenious but unfair practice accords well with what 
we know of John's character and general policy. It was a 
measure of almost devilish cunning for obtaining his 
immediate ends, but likely to recoil on himself whenever a 
critical state of his fortunes arrived. Its efficacy lay in this, 
that it forced the hand of discontented magnates, compelling 
them to decide, upon the instant, between the desperate 
expedient of open rebellion and delivery of their children 
to an unscrupulous enemy, thus renouncing, perhaps for 
ever, the possibility of resistance or revenge, thereafter to be 
purchased at too dear a price — the life of the hostage. By 
thus paralyzing his enemies one by one, John hoped to 
render disaffection innocuous.^ 

^The only magnates not exposed to this dilemma were the prelates, whose 
celibacy cut them adrift from acknowledged family ties. They had no hostages 



442 MAGNA CARTA 

The history of the reign shows of what excessive practical 
importance this question of hostages had become. Thus, 
in 1201, John seized the castles of certain of his barons ; and 
one of them, William of Albini, only saved his stronghold 
of Belvoir by handing over his son as a hostage.^ In the 
same year, the men of York offended the King by omitting 
to meet him in procession when he visited their city, and by 
their failure to provide for the billeting of his archers. 
John, as usual, demanded hostages, but ultimately allowed 
the citizens to escape on payment of ;^ioo, to buy good- 
will.2 

Hardly a year passed without similar instances; but, 
apparently, it was not until 1208 that the practice was 
enforced wholesale. In that year, the King's abject fear 
of the effects of the Pope's absolution of his barons from 
their allegiance, led to his demand that every leading man 
in England should hand over his sons, nephews, or other 
blood relations to the King's messengers.^ 

The danger of failure to comply with such demands is 
illustrated by the fate of Maud of Saint- Valery, wife of 
William de Braose, who refused point-blank to hand over 
her grandchildren to a King who, she was unwise enough 
to say, "had murdered his captive nephew." ^ Two years 
later John, after failing to extort enormous sums in name of 
fines, caused her, with her eldest son, to be starved to death, 
a fate to which her own imprudence had doubtless contri- 
buted.^ John's drastic methods of treating his hostages 
may also be illustrated from the chronicles of his reign, for 
example, from the fate of the youths he brought from Wales 
in June, 121 1. When he heard of the Welsh rebellion of 
the following year, he ordered his levies to meet him at 
Nottingham. At the muster, early in September, John 
found awaiting him a great concourse, who were treated to 

to give, and were, further, in the normal case, exempt from fear of personal 
violence. 

^See R. Hoveden, IV. 161. 'See Rotuli de Finibnsy p. 119. 

2 See R. Wendover, III. 224-5, ^^d M. Paris, II. 523. 

* R. Wendover and Matthew Paris, ibid. 

•* See authorities cited by Miss Norgate, John Lacklandy p. 288. 



CHAPTER FORTY-NINE 443 

an object lesson which long might haunt their dreams. 
His passion at white heat, John incontinently hanged eight- 
and-twenty defenceless boys of the noblest blood of Wales. ^ 
This ghastly spectacle could not have been forgotten, 
when later in the same month the King, in the throes of 
sudden panic, fled to London ; and, secure in the fast- 
nesses of the Tower, demanded hostages w^holesale from all 
the nobles whose fidelity he doubted. Eustace de Vesci and 
Robert fitz Walter preferred to seek safety in flight.^ The 
others, with the Nottingham horror fresh in their memories, 
were constrained to hand over sons and daughters to the 
tender mercies of John, cunning and cruel by nature, and 
rendered doubly treacherous by suspicion intensified by 
fear. 

The defects of this policy, in the long run, may be read 
in the events which preceded Magna Carta. When John's 
hold on the hostages was relaxed, because of the campaign 
of 1 2 14, ending as it did in discomfiture, the disaffected 
were afforded their long-desired opportunity, and were 
stimulated to rapid action by the thought that such a chance 
might never occur again. John, on his return, held com- 
paratively few hostages, and the northern barons saw that 
they must act, if at all, before their children were once more 
in the tyrant's clutches. 

Even in June, 12 15, however, John had still a few 
hostages, and this chapter demands the immediate restora- 
tion of those of English birth (the Welsh receiving separate 
treatment), together with the charters which John held as 
additional security. This provision of Magna Carta was 
immediately carried out. Letters were dispatched to the 
■custodians of royal hostages, ordering an immediate 
release.^ The practice of taking hostages, however, by 
no means ended with the granting of the Great Charter. 
Before a year had run, some of the insurgent nobles, 
repenting of their boldness, succeeded in making terms 
with John by the payment of large sums of money and the 
delivery of their sons and daughters in security for their 

^ Cf. supra^ p. 25. 2 Cf. supra^ p. 25. 

^ See letter of 23rd June to Stephen Harengod in Appendix. 



444 MAGNA CARTA 

future loyalty. Simon fitz Walter, for example, thus gave 
up his daughter Matilda.^ 



CHAPTER FIFTY. 

Nos amovebimus penitus de balliis parentes Gerardi de 
Athyes, quod de cetero nullam habeant balliam in Anglia ; 
Engelardum de Cygony, Petrum et Gionem et Andream, 
de Cancellis, Gionem de Cygony, Galfridum de Martinny 
et fratres ejus, Philippum Marci et fratres ejus, et Galfridum 
nepotem ejus, et totam sequelam eorundem. 

We will entirely remove from their bailiwicks, the relations of 
Gerard of Athee (so that in future they shall have no bailiwick 
in England); namely, Engelard of Cigogne, Peter, Guy, and 
Andrew of Chanceaux, Guy of Cigogne, Geoffrey of Martigny 
with his brothers, Philip Mark with his brothers and his nephew 
Geoffrey, and the whole brood of the same. 

Chapter 45 sought to secure the appointment of suitable 
men to posts of trust under the Crown ; the present chapter 
definitely excludes from bailiwicks (a comprehensive term 
embracing all grades of local magistracies) one particular 
group of royal favourites. This clause was omitted from 
future reissues, along with chapter 45. 

The Charter does not explain the reasons that had 
rendered these men obnoxious; but the testimony of con- 
temporary Plea Rolls and Pipe Rolls amply supplies the 
omission. Each one of them can be shown to have held 
places of profit under the Crown as sheriffs of counties, 
forest wardens, and commanders of royal garrisons. They 
formed a group of kinsmen who, after John had lost his 
French dominions, preferred to follow their royal master to 
England. The three villages of Athee, Cigogne, and 
Chanceaux lie close together in Touraine, in the modern 
department of Indre-et-Loire, not far from the cities of 
Tours and Loches. The group of men here named all came 

^See Rotiili de Finibus, 571. The custody of hostages might be a desirable 
office ; in 1199 Alan, the earl's son, offered three greyhounds for the custody of a 
hostage of Brittany, Rotuli de Finibus, p. 29. 



CHAPTER FIFTY 445 

from this district. " They were neither courtiers nor poli- 
ticians, but soldiers of experience, whom the barons feared 
with good cause." ^ 

The career of Engelard de Cigogne may be taken as 
typical of the rest. He was a nephew of Gerard of Athee, 
whom he succeeded, in 1209, as sheriff of Gloucester and 
Hereford, an office he held until about the time of Magna 
Carta. The Plea Roll of the Gloucestershire Eyre of 1221 
covers the period of his shrievalty, and contains a striking 
and detailed picture of his misdeeds and extortions.^ He 
accounted for the firma burgi of Bristol,^ which seems to 
imply interference with its chartered liberties. He also 
held pleas of the Crown for Gloucestershire,^ in violation of 
the ordinance of 11 94 forbidding any sheriff to act as 
justiciar in his own county.^ Several entries tell of barrels 
of wine which he took as " prise " from ships entering the 
port of Bristol, and thereafter sold to the King. For 
example, the exchequer officials allowed him to deduct from 
the firma, the sum of 60s., in respect of four tuns of red 
wine, as certified by the King's writ.^ Engelard guarded a 
rich treasure for the King at Bristol, probably as constable 
of the castle there, sums being paid to him ad ponefidum in 
thesauro regis J On one occasion he was entrusted with 
more than 10,000 marks of the King's money .^ Hostages, 
as well as bullion, were placed under his care; a writ dated 
1 8th December, 12 14, directed him to liberate three noble 
Welshmen whom it mentioned by name.^ 

In the civil war to which the treaty of peace sealed at 
Runnymede was a prelude, Engelard, then constable of 
Windsor Castle and warden of the adjacent forest of 
Odiham, proved active in John's service. He successfully 
defended Windsor from the French faction, making vigor- 

^G. J. Turner, Trans. R.H.S., XVIII. p. 254. 

^ See Gloucester Pleas^ edited by Maitland, passim. 

^ Pipe RoU^ 12 John, cited Madox, I. 333. 

^ Pipe Roily 12 John, cited Madox, II. 146. ^ Gloticcster Pleas, xiii. ff. 

« Pipe Roll, 12 John, cited Madox, I. 766. 

''Ibid., I. 606. ^Ibid., I. 384. 

^ Rot. Pat., 16 John, m. 9 (I. 125), and New Rymer, I. 126. 



446 ' MAGNA CARTA 

ous sorties until relieved by the King.^ He requisitioned 
supplies to meet the royal needs ; and a plea was brought 
against him so long afterwards as 1232, in connection with 
twelve hogsheads of wine thus taken. 2 He acted as sheriff 
of Surrey under William Marshal, but was suspended from 
this office in 12 18, in consequence of a dispute with Earl 
Warenne.^ He remained warden of the castle and forests 
for twenty years after the accession of Henry IH.,* and his 
long services were rewarded with grants of land : in the 
county of Oxford he held the manor of Benzinton, with 
four hundreds and a half, during the King's good 
pleasure ; ^ while his son Oliver received the lucrative post 
of guardian over the lands and heirs of Henry de Berkley.^ 
In 1 22 1, however, acting in consort with Falkes de 
Breaute, Philip Mark, and other castellans, Engelard sup- 
ported earl William of Aumale in his resistance to the 
demands of Henry's ministers, that all royal castles should 
be restored to the King. Notwithstanding the secrecy with 
which he sent men to the earl at Biham castle,^ he fell under 
suspicion of treason, and found hostages that he would hold 
the castle of Windsor for the King.^ In 1236, he was 
relieved of some of his offices, but not of all, for in 1254 he 
was two years in arrears with the firma of the manor of 
Odiham.^ In that year, apparently, he died; for the patent 
roll contains a writ granting him permission to make his 
will, and an entry in 1255 relates how "for good service 
done to the King by Engelard of Cigogne in his lifetime, 
the King granted to his executors that they should be quit 
of all accounts to be rendered by them at the exchequer, 
and of all averages of accounts, and of all debts and 
imposts." 10 Engelard thus died, as he had lived, the 

1 See M. Paris, II. 665, who calls him *' Ingelardus de Athie " and describes him 
as vir in opere martis prohatissimits. Cf. AW. Pat., g Henry III. m. 9. 

2 See Bracton's Note-booh, No. 684. 3 gee Rot. Pat., 2 Henry III. m. 7. 

^Ibid., 19 Henry III. ^ggg 7^^^^^ ^^ Neville, p. 18, and ibid., p. 120. 

• Rot. Pat., 9 Henry III. m. 6. ' R. Wendover, IV. 66. 

^ Annals of Dunstable, III. 68. 

^Mem. Roll, 28 Henry III., cited Madox, II. 201. 

^^ Mick. Cominunia, 29 Henry III., cited Madox, II. 229. 



CHAPTER FIFTY 447 

trusted servant and favourite of kings. His career illus- 
trates how the very same men who had incurred odium as 
partisans of John became, when the civil war was over, 
instruments of his son's misgovernment.^ 



CHAPTER FIFTY-ONE. 

Et statim post pacis reformacionem amovebimus de regno 
omnes alienigenas milites, balistarios, servientes, stipen- 
diarios, qui venerint cum equis et armis ad nocumentum 
regni. 

As soon as peace is restored, we will banish from the kingdom 
all foreign-born knights, cross-bowmen, Serjeants, and mercenary 
soldiers, who have come with horses and arms to the kingdom's 
hurt. 

John here binds himself to disband his foreign troops, 
the agents of his tyrannies. These men, who had garri- 
soned royal castles, are to be banished " as soon as peace 
is restored," an indication that a state of virtual war was 
recognized. This promise was partially fulfilled : on 23rd 
June writs were issued for disbandment of the mercenaries. ^ 
The renewal of the civil war, however, was followed by 
enrolment of new bands of foreigners, whose presence was 
one of the main causes of the rebellion of 1224, after the 
suppression of which most of them were again banished 
with their ringleader, Falkes de Breaute. 

The words used to describe these soldiers are compre- 
hensive. Stipendiarii embraced mercenaries of every kind : 
halistarii were cross-bowmen. This weapon, imported into 
England as a result of the crusades, quickly superseded the 

^Some particulars respecting the other individuals named will be found in 
Thomson, Alagjta Charta, 244-5. Philip Mark was Constable of Nottingham 
(R. Wendover, III. 237), and Sheriff both before and after 1215 (see, e.g., Rot. 
Claus.j I. 412), while Guy de Chanceaux in 12 14 accounted for scutage of the 
honour of Gloucester (Madox, I. 639), and for the rent of the barony of William 
of Beauchamp {ibid., I. 717). See also Petit-Dutaillis, Lo7iis VIII., p. ii6; 
Gloucester PleaSy passim ; Turner, op. cit. passim. 

2 See Rot. Pat., 17 John, m. 23 (A>w Rymer, I. 134). 



448 MAGNA CARTA 

earlier short bow, but had, in turn, to succumb to the 
long bow, which was apparently derived from Wales by- 
Edward I., who gained by means of it many battles against 
the Scotch and Welsh, and made possible the later triumphs 
of the Black Prince and Henry V. 



CHAPTER FIFTY-TWO. 

Si quis fuerit disseisitus vel elongatus per nos sine legali 
judicio parium suorum, de terris, castellis, libertatibus, vel 
jure suo, statim ea ei restituemus; et si contentio super 
hoc orta fuerit, tunc inde fiat per judicium viginti quinque 
baronum, de quibus fit mencio inferius in securitate pacis : 
de omnibus autem illis de quibus aliquis disseisitus fuerit 
vel elongatus sine legali judicio parium suorum, per Hen- 
ricum regem patrem nostrum vel per Ricardum regem 
fratrem nostrum, que in manu nostra habemus, vel que 
alii tenent que nos oporteat warantizare, respectum 
habebimus usque ad communem terminum crucesigna- 
torum ; exceptis illis de quibus placitum motum fuit vel 
inquisicio facta per preceptum nostrum, ante suscepcionem 
crucis nostre : cum autem redierimus de peregrinacione 
nostra, vel si forte remanserimus a peregrinacione nostra, 
statim inde plenam justiciam exhibebimus. 

If any one has been dispossessed or removed ^ by us, with out _ 
the legal judgment of his peers, from his lands, castles, franchises, 
or from his right, we wiH immediately restore them to him ; and 
if a dispute arise over this, then let it be decided by the five- 
and-twenty barons of whom mention is made below in the clause 
for securing the peace.^ Moreover, for all those possessions, 
from which any one has, without the lawful judgment of his 
peers, been disseised or removed, by our father, King Henry, 
or by our brother, King Richard, and which we retain in our 
hand (or which are possessed by others, to whom we are bound 
to warrant them) we shall have respite until the usual term of 
crusaders ; excepting those things about which a plea has been 

' The elongatus of the Charter replaces the proloiigahis of the Articles. 
2 The so-called "executive clause," the '* forma seairitatis adobservandtimpacem^* 
of the Articles, which became chapter 6i. 



CHAPTER FIFTY-TWO 449 

raised, or an inquest made by our order, before our taking of 
the cross ; but as soon as we return from our expedition (or if 
perchance we desist from the expedition) we will immediately 
grant full justice therein. 

Chapter 39, in so far as it relates to illegal disseisins, 
is here supplemented : remedy is provided for everyone 
dispossessed by the Crown " sine legali judicio parium 
suorum." Yet, a distinction is drawn between wrongs 
inflicted by John himself (where summary methods are to 
rule) and by his predecessors (where less precipitate proce- 
dure must take its course). 

The Articles of the Barons had recognized the same 
distinction, while providing somewhat different treatment. 
Those disseised by Henry or Richard were to get redress 
" according to the judgment of their peers in the King's 
court " ; those disseised by John, " according to the judg- 
ment of the twenty-five barons." Both cases were, in the 
Articles, qualified by a stipulation which calls for comment. 
John had taken the crusader's vow a few months before, 
and now claimed the usual three years' " respite " from all 
legal proceedings. The barons, viewing John's vow as a 
notorious perjury, rejected his claim. The Articles referred 
the question to arbitration. The prelates, whose judicium 
on this point was declared to be final (" appellatione 
remota "), and who w^ere bound to give an early decision 
(" ad certum diem "), might not unreasonably have been 
suspected of partiality, since " taking the cross " was not 
a step to be belittled by churchmen. Yet they seem to 
have acted in a spirit of not unfair compromise, if the clause 
as it finally appeared in John's Magna Carta may be taken 
as giving the substance of their award. 

In cases where John himself had been the disseisor, the 
twenty-five executors might decide forthwith. Respite was 
allowed, however, in respect of disseisins of Henry and 
Richard (except where legal proceedings were already 
pending).^ The Charter says nothing of the procedure at 
the close of the three years; but there was probably no 

^This "benefit of a crusader" was extended to John in three other sets of com- 
plaints, specified in c. 53 {^.v.). 

2 F 



450 MAGNA CARTA 

intention to depart from the terms of the Articles in this 
respect, namely, "judgment of peers in the King's court." 
John had good reason to consider as unfair the mode 
here appointed for deciding disputes as to the other class 
of disseisins, namely, those effected by him : many delicate 
points would be referred to the summary decision of a 
baronial committee, sure to be composed of his most bitter 
enemies — the very men, perhaps, who claimed to have been 
dispossessed. If the " judgment of the twenty-five " meant 
for the barons "the judgment of peers," it meant for the 
King the judgment of inferiors and enemies. ^ 



CHAPTER FIFTY-THREE. 

EuNDEM autem respectum habebimus, et eodem modo de 
justicia exhibenda de forestis deafforestandis vel reman- 
suris forestis, quas Henricus pater noster vel Ricardus 
frater noster afforestaverunt, et de custodiis terrarum que 
sunt de alieno feodo, cujusmodi custodias hucusque habui- 
mus occasione feodi quod aliquis de nobis tenuit per 
servicium militare, et de abbaciis que fundate fuerint in 
feodo alterius quam nostro, in quibus dominus feodi dixerit 
se jus habere; et cum redierimus, vel si remanserimus a 
peregrinacione nostra, super hiis conquerentibus plenam 
justiciam statim exhibebimus.^ 

We shall have, moreover, the same respite and in the same 
manner in rendering justice concerning the disafforestation or 
retention of those forests which Henry our father and Richard 
our brother afforested, and concerning the wardship of lands 
which are of the fief of another (namely, such wardships as we 
have hitherto had by reason of a fief which anyone held of us 
by knight's service), and concerning abbeys founded on other 
fiefs than our own, in which the lord of the fee claims to have 

^ This chapter embraced not merely estates retained in John's possession, but also 
those granted out anew. If the former owner recovered these, the Crown was 
bound to make good the loss caused by the eviction. The case of Welshmen is 
specially treated in c. 56 {^.z>.). 

2 The words, *'-?/ eodem modo, de justicia exhibenda,''' and '■^ vel remansuris 
forestis'''' are written at the foot of both the Cottonian versions. Cf. supra, 195 n. 
They make clear, rather than add to, the meaning of the rest. 



CHAPTER Fin Y-THREE 45i 

right; and when we have returned, or if we desist from our 
expedition, we will immediately grant full justice to all who 
complain of such things. 

This chapter makes an addition to the Articles of the 
Barons, extending to three additional kinds of abuses, the 
respite provided in chapter 52 for redressing acts of illegal 
disseisin. The " close time " secured to John in virtue of 
his crusader's vow is to cover (a) inquiries into boundaries 
of forests alleged to have been extended by his father or 
his brother; (h) wardships over lands usurped by illegal 
extensions of prerogative wardship ; and (c) abbeys founded 
by mesne lords but seized by John during vacancies.^ 



CHAPTER FIFTY-FOUR. 

NuLLUS capiatur nee imprisonetur propter appellum femine 
de morte alterius quam viri sui. 

No one shall be arrested or imprisoned upon the appeal of a 
woman, for the death of any other than her husband. 

The object of this chapter was to find a remedy for 
what the barons evidently considered an unfair advantage 
enjoyed by women appellants, who were allowed to appoint 
some champion to act for them in the duellum^ while the 
accused man had to fight for himself. The connection 
between appeal and battle, and the distinction between 
battle following on appeal and battle on a writ of right, 
have already been explained.^ In civil pleas, neither party 
could fight in person : champions were essential, although 
hired champions were condemned.-^ In criminal pleas, the 
parties must fight in their own persons. This distinction 
is not so illogical as it seems at first sight, for the appellant 
himself, in the one case, and the champion who fought for 

^ It thus supplements three previous chapters {a) c. 47 ; {b) c. yj ; and [c) c. 46 
respectively. 

^Ct stcpra, c. 36. 

^ Bracton, folio 151b, cites the case of a champion sentenced to mutilation of a 
foot because he confessed that he was paid to appear. Statute of Westminster, I. 
{c. 41), enacted that champions need not swear to personal knowledge. Neilson, 
Trial by Combat, 48-51. 



452 MAGNA CARTA 

him, in the other, were both supposed to be eye-witnesses of 
the facts.i 

In a case of homicide, no private accuser would be heard 
unless he alleged that he had seen the accused actually 
do the deed. The stringency of this rule was, however, 
modified by legal fictions. The near relation, or the feudal 
lord, of the slain man, was treated as constructively present 
at his slaying. This, at least, is the most plausible inter- 
pretation of Glanvill's words : " No one is admissible to 
prove the accusation unless he be allied in blood to the 
deceased or be connected with him by the tie of homage 
or lordship, so that he can speak of the death upon testi- 
mony of his own sight." ^ 

The rule which required an appellant to offer proof by 
his own body was also relaxed in certain cases; women, 
men over sixty, and those with broken bones or who had 
lost a limb, an ear, a nose, or an eye, might fight by proxy .^ 
The privilege accorded to women was looked on with dis- 
favour : accordingly, the man accused by a woman might, 
in Glanvill's words, elect either " to abide by the woman's 
proof or to purge himself by the ordeal.""* This option 
was freely used; an appellee in 1201 was allowed to go to 
the ordeal of water, ^ while two years later when the widow 
of a murdered man offered to prove her accusation " as the 
court shall consider," the accused "elected to bear the 
iron."^ After the virtual abolition of ordeal in 12 15, 
appeals by women were usually determined per patriam : 
such is the doctrine of Bracton,^ whose authority is borne 
out by recorded cases. Thus in 1221, a man accused by a 
woman of her husband's murder offered fifteen marks for 
a verdict of the jurors.^ 

^ The