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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  overhauled  every  institution  and  every    ^^ 
branch  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^^ 
finanoiFbugauT^^^        administrative  centre  nfjJT^Jdng, 
dom,  and  as  the  vehicle  of  royal  justice.     The  Exchequer>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  Rolls  were  revived  and  financial  reforms  effected.  < 
The  old  popular  courts  of  hundred  and  county^,  and  the^'^  ^' 
feudal    jurisdictions   were   brought    under   more   effective 
control  of  the  central  gfovernment  by  the  restoratiorToTThe 

„.^ — — £2 — ..  . iww J 

system^^oTEvres  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  doors  of  his  royal  Courts  of  Law  to  all- 

yf  comers~^excepting  villeins),  and^provided"  there^ — always 
iiV- return  for  hard  cash»  be  it  said — a  better  article  in^ame 
of^justice  than  could  be  procured  elsewhere  in  England, 
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  litigants  from  manorial  courts 
to  his  own.  The  same  policy  had_aJlllther  result  in  taciIT- 
tating  the  growth  of  a  body  of  common  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    used 

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

^;    were^bused~Tor^seIfisji  ends  by  both  his  sons.     Richard's 

Ch   heayy  taxation  and  contemptuous  indifference_to_Enjglish 

/       interests  reconciled  men's  minds  to  thoughts  of  change,  and 

prepared  the  basis  of  a  combined  oppositionto  a  power  jHaT 

threatened  to  grind  all  other  powers  t^  powder . 

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

O    taxation.     Financial    machinery    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  methods  of  taxation  were  deyised, 
affecting  new  classes  of  property ;  in  particuTarTpersoiial 
effects — merchandise  andother  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  argued  that  what  had  been  paid  once  might  equally^  well 
be  paid  again.  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  himself  free  from  the  restraintsj2f_power|ii^^ 
and^onduct  the  workjol^overnment  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  :- 
the  excessive  demands,  both  for  money  and  for  service,  - 
coupled  with  the  unpoBularJuses-lo  which  these  were_put, 
form  the  keynote  of  the  reign  :  they  form  also_Jhe  back- 
ground 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 
objects  of  bitter^pposition  m  John's  tactless  hands^  TKe 
whole  administralion  of  justice,  along  with  the  entire  feudal 
system  of  land-tenure,  with  its  military  obligations,  aids 
^and  incidents,  were  degraded  into  instruments  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 
theperf  ected  jiiachinery .,  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."     Tenure  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 

The  interest  .of  historians^  centres  in  tenure  by  knight-' s 
service,   which   is  the  very  kernel  of  the  feudal  system^ 

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 
heir's  ri^hM:o  succeed  Remained  subject  to  onejcondition, 
namely,  the^payment^oTa^unrTno^  as  a  "  reliefT"  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^  grounds  ^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 
wards  guilty  of  unchastity  (an  offence  which  spoiled  the 
king's  market).  Failum  to  oljey  the  royal_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 
forrner  siib-Ttenants.  whether  freeholders  or  villeins,  movedT 
up  one  rung  in  the  feudal  ladder  and  held  henceforward^ 
directlv^f  the  king,  who  took  over  the  entire  complexus  of 
legal  rights  previously  enjoyed  by  the  defaulter :  rents, 
crops,  timber,  casual  profits,  and  advowsons  oTchurches 
falling  vacant;  jurisdictions  and  their  profits;  services  of 
villeins;  reliefs,  wardshi^s^^and  marriages  of  freeholders, 
as  these  became  exigible. 

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

(c)    Wardships  are  described  in  the  Dialogus  de  Scac- 
cario   as    "  escheats    along   with    the   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_the  heir  of  a  deceased  tenant  was  unfitted  ; 
to__bear  arms  by  reason  of  his  tender  years,  the  lands  wereT ' 
dudng  his  minority,  without  an  effective  owner£_  the  lord     30 
treated  them  as  temporarily  escheated,  entered  into  posses-  , 
sion,   drew   the  revenues,   and__applied  them   to  his  own  I 
purposes,  subject  only  to  the  obligatiqn_of  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  ward, 
that  is,  in  the  case  of  a  military  tenant,  on  the  completion 
ofjiis  twenty-first  year,  "  in  that  of  a  holder  in  socage  on  „.A7 
the^completion^fthe  fifteenth^and  inlne  case  ot  a  burgess" 

^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  clothj,_and  so 
(y^JlLli---Wardship  of  females  normally  ended  atjhe_age 
of  fourteen,  ""becauselHaTa  woman  of  suchjgejnayjiaye 
a  husband_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 

0 

)» 

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  manorial_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.  \ 
Royal  justice  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_  agreed  by  ^11  our  historians  that  ^^ 
the  Great  Charter  ofKing  John  was  forjthejnost  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  old  English  law  unchanged 
by  the  Conqueror  or  his  successors,   now  conhrnied/and 
pudfiedTTrom  abuseSj~~T2)"In  definingTeudal  incidents  and 
services,  it  confirmed  many  rules  of  the  feudal  law  brought  '" 
into   England  by^  the   Normans   after    1066.   "(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  every  huma.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  definjte  what  had 

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

bebroken  witn  impunitj^.     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  scutage,  not  in_the_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  enumerate  trial  by  jury ;  Habeas 
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  point;  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  measure  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  to  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  command 
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  different  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  aJ^Judgmenf^^U^if 
for  a  "  judgment  of  peers  "  and  "  according  to  the  law  of  the 
land."  Two  species  of  irregularities  were  condemned  by 
these  words ;  and  these  will  be  explained  in  the  two  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 
"  Forest  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,  without  _ 
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  appellant  "  in  all  cases  except  murder,  that  is,  secret  homicide,  made 
oath  as  a  witness  that  he  had  seen  and  heard  the  deed."  Neilson,  Tj-tal  by 
Combat^  48. 

2  Glanvill,  XIV.  c.  3. 

3  See  Bracton,  II.  ff.,  142b,  145b;  also  Neilson,  Trial  by  Combat  47,  and 
authorities  there  cited. 

4  Glanvill,  XIV.  c.  3.  ^  Sel.  Pleas  of  the  Crown,  No.  1. 
*Ibid.,  No.  68.     Cf.  No.  119.  'Bracton,  folio  142b. 

*  Select  Pleas  of  the  Crown,  No.  130. 


CHAPTER  FIFTY-FOUR  453 

A  woman's  right  of  accusation  (even  when  thus  safe- 
guarded from  abuse)  was  restricted  to  two  occasions,  the 
murder  of  her  husband  and  the  rape  of  her  own  person. 
Magna  Carta  mentions  only  one  of  these  two  grounds  of 
appeal ;  but  silence  on  the  subject  of  assault  need  not  be 
interpreted  as  indicating  any  intention  to  deprive  women 
of  their  rights  in  such  cases. ^ 

The  present  chapter  of  the  Great  Charter  confines  itself 
to  appeals  of  murder,  declaring  that  no  woman  has  the 
right  to  institute  proceedings  in  this  way  for  the  death  of 
father,  son,  or  friend,  but  only  for  that  of  her  husband. 
Hard  as  this  rule  may  seem,  the  barons  here  made  no 
change  on  existing  law.  Glanvill  does  not  recognize  a 
woman's  appeal  save  for  the  death  of  her  husband  r^ — 
"  A  woman  is  heard  in  this  suit  accusing  anyone  of  her 
husband's  death,  if  she  speak  as  being  an  eye-witness  to 
the  fact,  because  husband  and  wife  are  one  flesh  " — another 
example  of  constructive  presence.^ 

There  seems  to  be  no  authority  for  Coke's  hasty  infer- 
ence, that  previous  to  12 15  a  woman  had  an  appeal  for  the 
death  of  any  of  her  "  ancestors  "  :^  this  chapter  was  purely 
declaratory.  Yet  its  provisions  were  by  no  means  gallant. 
The  barons  were  more  careful  to  guard  themselves  against 
risk  than  to  champion  the  cause  of  women. ^ 

^The  Act  6  Richard  II.  c.  6,  to  prevent  the  woman's  connivance,  extended  the 
right  of  appeal  in  such  cases  to  a  woman's  husband,  father,  or  other  near  relative  ; 
but  denied  the  appellee's  right  to  the  option  of  defending  himself  by  battle — thus 
proving  no  exception  to  the  policy  of  discouraging  the  duellum  wherever  possible. 

2  Glanvill,  XIV.  c.  3. 

^Fleta  I.  c.  33  seems  to  indicate  the  same  doctrine  when  he  speaks  '*  de  morte 
viri  sui  inter  brachia  sua  interfecti^*  although  laboured  explanations  are  some- 
times attempted,  e.g.  Coke,  Second  Institute^  93.  Pollock  and  Maitland  (I.  468  n.) 
dismiss  the  phrase  inter  brachia  sua  as  '*  only  a  picturesque  common  form." 

*  See  Coke,  Second  Institute^  p.  68,  and  contrast  Pollock  and  Maitland,  I.  468. 
John's  justices  rejected  in  1202  a  woman's  claim  to  appeal  for  her  father's  deatli, 
and  some  ten  years  later  two  claims  for  the  death  of  sons.  See  Select  Pleas  of  the 
Crown,  Nos.  32,  117,  and  118;  yet  Gloucester  Pleas  (No.  482)  records  n  1221 
a  woman's  appeal  for  a  sister's  death. 

^  A  peculiarity  of  wording  should,  perhaps,  be  noticed.  It  restricts  explicitly 
not  appeals,  but  " arrest  and  imprisonment"  following  on  appeal. 


/ 


454  MAGNA  CARTA 


CHAPTER  FIFTY-FIVE. 

Omnes  fines  qui  injuste  et  contra  legem  terre  facti  sunt 
nobiscum,  et  omnia  amerciamenta  facta  injuste  et  contra 
legem  terre,  omnino  condonentur,  vel  fiat  inde  per  judicium 
viginti  quinque  baronum  de  quibus  fit  mencio  inferius  in 
securitate  pacis,  vel  per  judicium  majoris  partis  eorundem, 
una  cum  predicto  Stephano  Cantuariensi  archiepiscopo, 
si  interesse  poterit,  et  aliis  quos  secum  ad  hoc  vocare 
voluerit :  et  si  interesse  non  poterit,  nichilominus  procedat 
negocium  sine  eo,  ita  quod,  si  aliquis  vel  aliqui  de  predictis 
viginti  quinque  baronibus  fuerint  in  simili  querela,  amove- 
antur  quantum  ad  hoc  judicium,  et  alii  loco  eorum  per 
residuos  de  eisdem  viginti  quinque,  tantum  ad  hoc  facien- 
dum electi  et  jurati  substituantur. 

All  fines  made  with  us  unjustly  and  against  the  law  of  the 
land,  and  all  amercements  imposed  unjustly  and  against  the 
law  of  the  land,  shall  be  entirely  remitted,  or  else  it  shall  be 
done  concerning  them  according  to  the  decision  of  the  five-and- 
twenty  barons  of  whom  mention  is  made  below  in  the  clause  for 
securing  the  peace,  or  according  to  the  judgment  of  the  majority 
of  the  same,  along  with  the  aforesaid  Stephen,  archbishop  of 
Canterbury,  if  he  can  be  present,  and  such  others  as  he  may 
wish  to  bring  with  him  for  this  purpose,  and  if  he  cannot  be 
present  the  business  shall  nevertheless  proceed  without  him, 
provided  always  that  if  any  one  or  more  of  the  aforesaid  five- 
and-twenty  barons  are  in  a  similar  suit,  they  shall  be  removed 
as  far  as  concerns  this  particular  judgment,  others  being  sub- 
stituted in  their  places  after  having  been  selected  by  the  rest  of 
the  same  five-and-twenty  for  this  purpose  only,  and  after  having 
been  sworn. 

The  thirty-seventh  of  the  Articles,  forming  the  draft  of 
this  chapter,  refers  specially  to  fines  exacted  by  John  from 
widows  for  the  peaceful  enjoyment  of  their  own  and  their 
husband's  estates  ("  pro  dotihus,  maritagiis,  et  heredita- 
tihus  ")  :  it  forms  thus  a  natural  supplement  to  chapter  7. 
The  earlier  chapter  had  confirmed  widows  in  their  rights 
for  the  future;  this  one  remits  fines  unjustly  taken  in  the 
past.  It  is  probable  that  the  Articles  of  the  Barons  did 
not  intend  to  limit  their  own  operation  to  this  one  group 


CHAPTER  FIFTY-FIVE  455 

of  unjust  fines;  and  they  mention  amercements  without 
qualification.  In  any  view,  the  terms  of  Magna  Carta  were 
broadened  out  to  embrace  illegal  fines  and  amercements  of 
every  sort.^ 

The  distinction  between  fines  and  amercements  has  been 
explained  in  a  former  chapter. ^  The  system  of  arbitrary 
fines  culminated  in  the  reign  of  John,  whose  talents  were 
well  suited  to  the  development  of  its  ingenious  and  mean 
details.  Dr.  Stubbs  describes  the  product  of  John's  labours 
as  "  the  system  of  fines  which  was  elaborated  into  that 
minute  and  grotesque  instrument  of  torture  which  all  the 
historians  of  the  reign  have  dwelt  on  in  great  detail,"^  and 
Hallam  has  a  passage  which  has  become  classical : — "  The 
Bishop  of  Winchester  paid  a  tun  of  good  wine  for  not 
reminding  the  King  (John)  to  give  a  girdle  to  the  countess 
of  Albemarle ;  and  Robert  de  Vaux  five  best  palfreys,  that 
the  same  King  might  hold  his  peace  about  Henry  Pinel's 
wife.  Another  paid  four  marks  for  leave  to  eat  (pro  licentia 
comedendi),"'^ 

Unique  procedure  was  provided  by  the  present  chapter 
for  deciding  disputes  as  to  the  legality  of  fines  and 
amercements.  Authority  to  decide  was  vested  in  a  board 
of  arbitrators  to  consist  of  thirteen  or  more  of  the  twenty- 
five  executors,  together  with  Stephen  Langton  and  such 
others  as  he  chose  to  summon.  No  mention  is  made  of 
the  maximum  number  whom  the  primate  might  nominate, 
and  there  is  no  attempt  to  define  their  powers  relative  to 
the  other  members,  a  somewhat  unbusinesslike  omission, 
but  one  which  testifies  to  the  confidence  placed  in  Langton 
by  those  who  approved  its  terms.  Care  is  taken  to  prevent 
members  of  the  twenty-five  from  sitting  in  judgment  on 
suits  arising  from  circumstances  resembling  their  own. 

^In  its  expanded  form  the  clause  becomes  a  supplement  also  to  cc.  20,  21,  and 
22  (which  defined  procedure  at  amercements),  and  to  cc.  36  and  40  (which  con- 
demned John's  practice  of  refusing  writs  and  justice  until  heavy  fines  were  offered). 

^  See  supra,  c.  20.  ^  See  Preface  to  W.  Coventry,  II.  Ixix. 

*  Middle  Ages,  II.  438.  Hallam's  examples  are  all  drawn  from  Madox,  I.  507-9. 
Other  illustrations  of  fines  and  amercements  may  be  found  under  several  of  the 
foregoing  chapters.  Every  man  who  began  a  plea  and  lost  it,  or  abandoned  it, 
was  amerced. 


456  MAGNA  CARTA 

This  chapter,  like  others  addressed  to  special  needs  of 
John's  reign,  found  no  echo  in  future  charters. 


CHAPTER  FIFTY-SIX. 

Si  nos  disseisivimus  vel  elongavimus  Walenses  de  terris 
vel  libertatibus  vel  rebus  aliis,  sine  legali  judicio  parium 
suorum,  in  Anglia  vel  in  Wallia,^  eis  statim  reddantur; 
et  si  contencio  super  hoc  orta  fuerit,  tunc  inde  fiat  in 
marchia  per  judicium  parium  suorum,  de  tenementis 
Anglie  secundum  legem  Anglie,  de  tenementis  Wallie 
secundum  legem  Wallie,  de  tenementis  marchie  secundum 
legem  marchie.     Idem  facient  Walenses  nobis  et  nostris. 

If  we  have  disseised  or  removed  Welshmen  from  lands  or 
liberties,  or  other  things,  without  the  legal  judgment  of  their 
peers  in  England  or  in  Wales,  they  shall  be  immediately  restored 
to  them ;  and  if  a  dispute  arise  over  this,  then  let  it  be  decided 
in  the  marches  by  the  judgment  of  their  peers ;  for  tenements 
in  England  according  to  the  law  of  England,  for  tenements  in 
Wales  according  to  the  law  of  Wales,  and  for  tenements  in  the 
marches  according  to  the  law  of  the  marches.  Welshmen  shall 
do  the  same  to  us  and  ours. 

Three  chapters,  redressing  wrongs  suffered  by  Welsh- 
men, testify  to  the  importance  attached  by  the  barons  to 
the  Welsh  alliance.  Restoration  is  to  be  made  (a)  of  illegal 
disseisins  effected  by  John  (chapter  56) ;  (b)  of  those  effected 
by  Henry  II.  and  Richard  I.  (chapter  57);  and  (c)  of  host- 
ages and  charters  delivered  to  John  as  pledges  of  peace 
(chapter  58). 

This  chapter  does  for  Welshmen  dispossessed  by  John 
what  chapter  52  did  for  Englishmen,  but  substitutes  "m 
marchia  per  judicium  parium  suorum  "  for  the  "  per  judi- 
cium mginti  quinque  haronum "  of  the  earlier  chapter. 
The  "venue"  was  thus  fixed  in  the  marchland  for  all 
Welshmen's  cases,  although  different  kinds  of  law  were  to 
be  applied  according  to  the  situation  of  the  property  in 

*The  words  *'  in  Anglia  vel  in  Wallia^^  are  written  at  the  foot  of  one  of  the 
Cottonian  versions  (cf.  sttpi'a,  i66  n.) ;  but  they  appear  in  sitti  in  the  Articles  of 
the  Barons. 


CHAPTER  FIFTY-SIX  457 

dispute.  This  indication  of  the  existence  of  three  distinct 
bodies  of  law,  one  for  England,  another  for  Wales,  and  a 
third  for  the  marches,  shows  that  the  unifying  tasli  of  the 
common  law  had  not  yet  been  completed.  Interesting 
questions  of  a  nature  analogous  to  those  treated  by  the 
branch  of  modern  jurisprudence  known  as  International 
Private  Law  must  constantly  have  arisen. 

All  three  classes  of  alleged  disseisins  (whatever  the  law 
involved)  were  to  be  decided  by  a  judicium  parium;  but 
the  "  peers  "   of  a   Welshman   were   not   defined — a  vital 


CHAPTER  FIFTY-SEVEN. 

De  omnibus  autem  illis  de  quibus  aliquis  Walensium 
disseisitus  fuerit  vel  elongatus  sine  legali  judicio  parium 
suorum  per  Henricum  regem  patrem  nostrum  vel  Ricar- 
dum  regem  fratrem  nostrum,  que  nos  in  manu  nostra 
habemus,  vel  que  alii  tenent  que  nos  oporteat  warantiz- 
are,  respectum  habebimus  usque  ad  communem  terminum 
crucesignatorum,  illis  exceptis  de  quibus  placitum  motum 
fuit  vel  inquisicio  facta  per  preceptum  nostrum  ante 
suscepcionem  crucis  nostre  :  cum  autem  redierimus,  vel 
si  forte  remanserimus  a  peregrinacione  nostra,  statim  eis 
inde  plenam  justiciam  exhibebimus,  secundum  leges  Wal- 
ensium et  partes  predictas. 

Further,  for  all  those  possessions  from  which  any  Welshman 
has,  without  the  lawful  judgment  of  his  peers,  been  disseised 
or  removed  by  King  Henry  our  father,  or  King  Richard  our 
brother,  and  which  we  retain  in  our  hand  (or  which  are  possessed 
by  others,  to  whom  we  are  bound  to  warrant  them)  we  shall 
have  respite  until  the  usual  term  of  crusaders ;  excepting  those 
things  about  which  a  plea  has  been  raised  or  an  inquest  made 
by  our  order  before  we  took  the  cross  ;  but  as  soon  as  we  return, 
(or  if  perchance  we  desist  from  our  expedition),  we  will  im- 
mediately grant  full  justice  in  accordance  with  the  laws  of  the 
Welsh  and  in  relation  to  the  foresaid  regions. 

The  provisions  for  Welshmen  unjustly  dispossessed  by 
Henry  or  Richard  are  identical  with  those  made  in  the 

^Cf.  Harcourt's  comment,  "A  bad  piece  of  work  this"  {Steward,  220). 


458  MAGNA  CARTA 

latter  part  of  chapter  52  for  Englishmen,  except  for  the  last 
words,  "  in  accordance  with  the  laws  of  the  Welsh  in  rela- 
tion to  the  foresaid  districts "  :  no  machinery  is  here 
specified  for  declaring  or  applying  these  laws. 

The  Articles  of  the  Barons  had,  however,  mentioned  the 
procedure  to  be  adopted;  and  a  comparison  of  articles  25 
and  44  with  this  chapter  suggests  the  antithesis  between 
"  per  judicium  parium  suorum  in  curia  regis  "  for  English- 
men, and  "  in  marchia  per  judicium  parium  suorum  "  for 
Welshmen. 


CHAPTER  FIFTY-EIGHT. 

Nos  reddemus  filium  Lewelini  statim,  et  omnes  obsides 
de  Wallia,  et  cartas  que  nobis  liberate  fuerunt  in  securi- 
tatem  pacis. 

We  will  immediately  give  up  the  son  of  Llywelyn  and  all  the 
hostages  of  Wales,  and  the  charters  delivered  to  us  as  security 
for  the  peace. 

The  treatment  of  hostages  in  general  and  Welsh  host- 
ages in  particular  has  already  been  illustrated.^  The 
patent  and  close  rolls  show  a  constant  coming  and  going 
of  these  living  pledges  of  the  peace.  A  writ  of  i8th 
December,  12 14,  for  example,  bade  Engelard  of  Cigogne 
restore  three  Welsh  nobles  to  Llywelyn.^  Since  then,  new 
hostages,  including  Llywelyn's  son,  had  been  handed  over; 
and  charters  also  had  been  pledged. 

The  Articles  of  the  Barons  had  treated  this  question  as 
an  open  one,  referring  it  to  the  arbitration  of  Stephen 
Langton  and  others  he  might  nominate.  The  point  had 
apparently  been  decided  in  favour  of  the  Welsh  before  the 
Charter  was  engrossed  in   its  final  form.^     John   is  now 

1  See  suj>ra,  p.  441.  ^See  supra,  p.  445. 

3  No.  45  of  the  Articles  is  connected  by  a  rude  bracket  with  No.  46  (relating  to 
Scotland) ;  and  a  saving  clause,  thus  made  applicable  to  both,  is  added  with  some 
appearance  of  haste  :  *'  nisi  aliter  esse  debeatper  cartas  quas  rex  habet^  per  judicium 
archiepiscopi  et  aliorum  quos  sectcm  vocare  vohierit.^^  Cf.  supra^  p.  38.  So  far  as 
related  to  Scotch  affairs,  the  King's  caveat  found  its  way,  in  an  altered  form,  into 
Magna  Carta.     See  c.  59. 


CHAPTER  FIFTY-EIGHT  459 

made  to  promise  an  immediate  surrender  of  hostages  and 
charters. 

The  Welsh  prince  must  have  breathed  more  freely  when 
this  was  fulfilled.  Soon,  with  a  light  heart,  his  son  by 
his  side,  he  renewed  hostilities.  Gualo,  on  nth  November, 
1 2 16,  laid  interdict  on  the  whole  of  Wales  for  holding  with 
the  barons.^  By  the  treaty  of  Lambeth,  Louis  was  to  send 
a  copy  of  the  peace  to  Llywelyn  and  the  other  Welsh 
princes.2 


CHAPTER  FIFTY-NINE. 

Nos  faciemus  Alexandro  regi  Scottorum  de  sororibus  suis, 
et  obsidibus  reddendis,  et  libertatibus  suis,  et  jure  suo, 
secundum  formam  in  qua  faciemus  aliis  baronibus  nostris 
Anglie,  nisi  aliter  esse  debeat  per  cartas  quas  habemus 
de  Willelmo  patre  ipsius,  quondam  rege  Scottorum  ;  et  hoc 
erit  per  judicium  parium  suorum  in  curia  nostra. 

We  will  do  towards  Alexander,  King  of  Scots,  concerning  the 
return  of  his  sisters  and  his  hostages,  and  concerning  his 
franchises,  and  his  right,  in  the  same  manner  as  we  shall  do  to- 
wards our  other  barons  of  England,  unless  it  ought  to  be  other- 
wise according  to  the  charters  which  we  hold  from  William  his 
father,  formerly  King  of  Scots ;  and  this  shall  be  according  to 
the  judgment  of  his  peers  in  our  court. 

The  barons  w^elcomed  allies  whether  from  Whales  or 
Scotland;  and  this  chapter  was  dictated  by  a  desire  to 
conciliate  Alexander.  John  was  forced  to  promise  to 
restore  to  the  King  of  Scots  his  sisters  and  other  hostages, 
together  with  his  franchises  and  his  "right." 

Opinions  have  been,  and  still  are,  sharply  divided  as 
to  whether,  or  in  what  degree,  Scotland  was  subject  to 
feudal  overlordship.  David  I.  and  his  successors.  Kings 
of  Scotland,  had  been  wont  to  do  fealty  and  homage  to  the 
Kings  of  England;  but  this  fact  has  received  different 
interpretations.  Such  homage,  it  is  argued,  was  performed 
in  respect  of  certain  English  baronies  which  happened  to 
belong   by   hereditary   right   to   the    Kings   of   Scotland, 

*  Annals  of  Waverley,  sub  anno  1216.  "^  New  Rymer^  I.  148. 


46o  MAGNA  CARTA 

namely,  the  earldom  of  Huntingdon,  and  the  counties  of 
Northumberland,  Cumberland,  and  Westmoreland.  The 
terms  of  homage  did  not  indicate  for  what  fiefs  it  was 
sworn — whether  for  the  English  earldoms  alone,  or  for  the 
country  north  of  Tweed  as  well. 

The  position  of  the  Kings  of  Scots  remained  ambiguous, 
until  William  the  Lion  was  placed  at  a  terrible  disadvantage 
by  his  capture  at  Alnwick  in  1174.  To  gain  release,  he 
ratified  the  Treaty  of  Falaise  on  8th  December,  of  that  year, 
by  which  he  agreed  to  hold  his  territories  as  fiefs  of  the 
English  Crown.  All  his  tenants  in  Scotland  were  to  take 
oath  to  Henry ;  while  hostages  were  surrendered,  along  with 
the  castles  of  Berwick,  Roxburgh,  Jedburgh,  Edinburgh, 
and  Stirling.! 

Henry's  diplomacy  was  undone  by  his  successor. 
Richard,  preparing  for  his  crusade  of  1190,  sold  recklessly 
every  right  that  would  fetch  a  price  :  William  bought  back 
the  independence  of  his  kingdom ;  but  this  restoration  of 
the  relations  that  prevailed  previous  to  11 74,  involved  a 
restoration  of  the  old  ambiguities.  When  Richard  died, 
William  despatched  ambassadors  to  England,  pressing 
claims  upon  the  northern  counties,  promising  to  support 
John's  title  in  return  for  their  admission,  and  adding 
threats.2  John  avoided  committing  himself  until  his  posi- 
tion in  England  was  assured;  thereafter  he  commanded 
William  to  do  homage  unconditionally.  The  Scots  King 
disregarded  the  first  summons,  but  yielded  to  a  second, 
yet  "  reserving  always  his  own  right."  ^  The  saving  clause 
left  everything  vague  as  before. 

In  April,  1209,  the  King  of  Scots  incurred  John's  dis- 
pleasure. William's  only  son,  Alexander,  was  demanded 
as  a  hostage,  or  alternatively  three  border  castles  must  be 
delivered  up.     After  a  refusal,  the  old  King  gave  in  on 

^  See  Ramsay,  Angevin  Empire^  183-4.  In  the  spring  of  1 185  Henry  confirmed 
William's  claim  to  Huntingdon,  and  the  Scots  King  transferred  it  to  his  brother 
David  ;  ibid.,  226  n. 

2  See  Miss  Norgate,y<?//«  Lackland,  66. 

^See  Stubbs,  Const.  Hist.,  I.  596  n.,  and  Norgate, yb/^«  Lackland,  73,  78.  Cf. 
the  words  '■^  salvo  jure  suo"  with  the  ^^etjure  suo"  of  Magna  Carta. 


CHAPTER  FIFTY-NINE  461 

7th  August,  1209.1  Alexander  did  homage  on  behalf  of 
his  father  "  for  the  aforesaid  castles  and  other  lands  which 
he  held,"  and  found  sureties  for  the  payment  of  15,000 
marks.  William's  daughters,  Margaret  and  Isabel,  became 
wards  of  John,  who  had  the  right  to  bestow  them  in 
marriage.2  There  seems  to  have  been  an  understanding 
that  one  of  them  should  wed  John's  eldest  son.^  Margaret 
and  Isabel,  though  virtually  prisoners  in  Corfe  Castle, 
were  honourably  treated  there.  The  Close  Rolls  contain 
orders  for  supplying  them  with  articles  of  comfort  and 
luxury.  Thus  on  6th  July,  12 13,  John  instructed  the  Mayor 
of  Winchester  to  despatch  in  haste,  for  the  use  of  his  niece 
Eleanor  and  of  the  two  Scots  princesses,  robes  of  dark 
green  (tunics  and  super-tunics)  with  capes  of  cambric  and 
fur  of  miniver,  together  with  twenty-three  yards  of  good 
linen  cloth,  with  light  shoes  for  summer  wear,  "  and  the 
Mayor  is  to  come  himself  with  all  the  above  articles  to 
Corfe,  there  to  receive  the  money  for  the  cost  of  the  same."  ^ 
Meanwhile,  events  in  Scotland  had  favoured  English 
pretensions.  In  1212,  Cuthred,  a  claimant  for  the  Scottish 
throne,  endeavoured  to  dethrone  King  William.  English 
succour  was  asked  and  paid  for  by  a  treaty  sealed  at  Norham 
on  7th  February,  1212,  by  which  William  granted  to  John 
the  right  to  marry  the  young  Alexander,  then  fourteen  years 
of  age,  *^  sicut  hominem  suuin  ligiuniy^^  to  whomsoever  he 
would,  at  any  time  within  the  next  six  years,  but  always 
"  without  disparagement."  ^  William  pledged  himself  and 
his  son  to  keep  faith  and  allegiance  to  John's  son,  Henry, 
"  as  their  liege  lord  "  against  all  mortals.^  William  had 
saved  his  Crown,  but  Scotland  was  sinking  into  the  position 

^  New  Rymer^  I.   103,  where   "  Northampton "  is  apparently  a  mistake   for 
'*  Norham."     See  Ramsay,  Angevin  Empire,  421  n. 
"Ramsay,  ibid.^  and  authorities  there  cited. 
•^Ramsay,  Angevin  Empire,  421,  and  authorities. 

*  Rot.  Clatis.,  I.  144,  and  I.  157.  This  Eleanor  was  the  sister  of  Prince  Arthur. 
The  fortunes  of  war  had  in  1202  placed  both  of  them  in  John's  hands.  Arthur  dis- 
appeared— murdered  it  was  supposed  ;  Eleanor  remained  a  prisoner  for  life  ;  the 
Scots  princesses  were  virtually  her  fellow-prisoners  for  a  time  in  Corfe  Castle. 

^  See  supra,  c.  6. 

^  Nezv  Fymer,  I.  104.     See  also  W.  Coventry,  II.  206. 


462  MAGNA  CARTA 

of  a  vassal  state.  On  28th  October,  12 13,  Innocent  Ill- 
ordered  the  King  of  Scotland  and  his  son  to  show  fealty 
and  devotion  to  King  John.^ 

William  the  Lion  died  at  Stirling  on  4th  December, 
1 2 14,  and  Alexander's  peaceful  succession  was  facilitated 
by  the  knowledge  that  he  had  the  support  of  John.  Such 
was  the  position  of  affairs  when  John  was  brought  to  bay 
at  Runnymede.  The  barons  were  willing  to  bid  for  the 
alliance  of  Alexander;  yet  it  was  unnecessary  to  bid  high. 
John  was  made  to  promise  to  restore  Alexander's  sisters 
and  other  hostages  unconditionally,  but  words  were  used 
which  committed  him  on  none  of  the  disputed  points.^ 
Franchises  and  "  right "  were  to  be  restored  only  in  so  far 
as  accorded  with  William's  "charters,"  as  interpreted  by 
the  judgment  of  the  English  barons  in  the  court  of  the 
English  King. 

The  allusion  in  the  text  to  the  Scottish  King  as  one  among 
"  our  other  barons  of  England  "  need  not  be  pressed  against 
Alexander,  any  more  than  similar  expressions  should  be 
pressed  against  John,  whose  position  as  Duke  of  Normandy 
and  Aquitaine  in  no  way  made  England  a  fief  of  the  French 
Crown  or  prevented  him  becoming  a  vassal  of  Rome.  In 
questions  affecting  his  feudal  position  in  France,  John's 
peers  were  the  dukes  and  counts  of  that  country;  and 
similarly  those  who  had  a  right  to  sit  in  judgment  as 
Alexander's  peers  over  his  claims  to  English  fiefs  were  the 
English  earls  and  barons.  Such  a  tribunal  was  not  likely 
to  give  decisions  favourable  to  Scots  pretensions,  at  the 
expense  of  England.^ 

Alexander,  though  no  party  to  the  treaty  at  Runnymede, 

^See  New  Ry/ner,  I.  ii6. 

2  Both  ladies,  however,  remained  prisoners  after  Henry  III.'s  accession.  Peter 
de  Maulay,  constable  of  Corfe  Castle,  was,  in  that  King's  fifth  year,  credited  with 
sums  expended  on  their  behalf.  Rof.  Claus.,  I.  466;  see  also  I.  483.  Both 
found  permanent  homes  in  England — Margaret  as  wife  of  Hubert  de  Burgh,  Isabel 
as  wife  of  Roger  Bigod.  See  Ramsay,  Angevin  Empire,  421,  and  authorities 
there  cited. 

^  No.  46  of  the  Articles  referred  the  question  of  Alexander's  "right"  to  the 
judgment  of  Langton  and  his  nominees,  for  which  Magna  Carta  substituted 
"judgment  of  his  peers  in  our  court." 


CHAPTER  FIFTY-NINE  463 

was  willing  to  profit  by  it :  on  7th  July,  12 15,  he  despatched 
the  Bishop  of  St.  Andrews  and  five  laymen  to  John  "  con- 
cerning our  business  which  we  have  against  you  to  be 
transacted  in  your  court."  ^  Nothing  came  of  this;  and 
Alexander  invaded  England  in  order  to  push  his  claims. 
John  swore  his  usual  oath,  "  by  God's  teeth,"  that  he  would 
"  chase  the  little  red-haired  fox-cub  from  his  hiding-holes."  ^ 
By  the  treaty  of  Lambeth  (12th  September,  12 17),  Louis 
and  Henry  were  each  to  send  a  copy  of  the  peace  to  Alex- 
ander that  he  might  be  included  in  its  terms  on  his  restoring 
castles,  lands,  and  prisoners,  taken  by  him  in  the  war.^^ 
On  23rd  September,  they  joined  in  urging  him  to  restore 
Carlisle,  and  Alexander,  anxious  to  preserve  his  English 
honour  of  Huntingdon,  was  constrained  to  yield.*  The 
deeper  question  at  issue  between  England  and  Scotland  was 
still  unsolved  when  the  relations  between  the  two  countries 
entered  on  a  new  phase,  as  a  consequence  of  the  attempts 
at  annexation  made  by  Edward  I.,  "  the  hammer  of  the 
Scots." 


CHAPTER  SIXTY. 

Omnes  autem  istas  consuetudines  predictas  et  libertates 
quas  nos  concessimus  in  regno  nostro  tenendas  quantum  ad 
nos  pertinet  erga  nostros,  omnes  de  regno  nostro,  tam  clerici 
quam  laici,  observent  quantum  ad  se  pertinet  erga  suos. 

Moreover,  all  these  aforesaid  customs  and  liberties,  the 
observance  of  which  we  have  granted  in  our  kingdom  as  far 
as  pertains  to  us  towards  our  men,  shall  be  observed  by  all  of 
our  kingdom,  as  well  clergy  as  laymen,  as  far  as  pertains  to  them 
towards  their  men. 

It  would  have  been  as  impolitic  as  it  was  obviously  unfair 
for  the  barons,  in  their  capacity  of  mesne  lords,  to  inflict 
upon  their  own  tenants  those  very  exactions  which  they 
compelled  the  King  to  abjure  as  against  themselves. 
Accordingly,  the  benefit  of  the  "  customs  and  liberties  " 

^  Neiv  Rymevy  I.  135.  ^  M.  Paris,  II.  642. 

^ New  Rymer^  I.  148.  ^ Rot.  Pat.,  I.  93. 


464  MAGNA  CARTA 

conceded  by  John  to  his  feudal  tenants  was — in  a  somewhat 
perfunctory  manner,  it  is  true — extended  to  the  feudal 
tenants  of  all  other  magnates,  whether  cleric  or  lay. 
Although  the  reference  to  "  customs  and  liberties "  was 
quite  general  in  its  terms,  it  seems  natural  to  infer  that 
feudal  grievances  were  chiefly  meant,  since  the  view  of 
society  indicated  is  feudal  rather  than  national.^ 

These  considerations  suggest  that  too  liberal  a  view  has 
sometimes  been  taken  of  the  scope  of  this  chapter.  Coke 
treated  it  as  affecting  not  merely  freeholders,  but  the  whole 
mass  of  the  people  : — "  This  is  the  chief  felicity  of  a  king- 
dom, when  good  laws  are  reciprocally  of  prince  and  people 
(as  is  here  undertaken)  duly  observed."  ^  In  this  view,  he 
has  had  many  followers;  and  the  present  chapter  has 
received  undue  emphasis  as  supporting  a  democratic  inter- 
pretation of  Magna  Carta.^  It  has  been  referred  to  as 
"  the  only  clause  which  affects  the  whole  body  of  the 
people."^  The  better  view  is  that  its  provisions  were  con- 
fined to  feudal  sub-tenants. 

Even  authors  who  interpret  the  chapter  in  this  restricted 
application  are  still  prone  to  exaggerate  its  importance, 
(i)  The  clause  is  sometimes  regarded  as  springing  directly 
from  the  barons'  own  initiative  :  Dr.  Stubbs,  contrasting  it 
with  Henry  I.'s  Charter  of  Liberties,  holds  that  it  was 
"adopted  by  the  lords  themselves."^  Such  praise  is 
unmerited ;  the  barons  inserted  it  because  they  had  need  of 
allies.  (2)  On  the  other  hand,  credit  for  the  clause,  equally 
unwarranted,  has  been  sometimes  bestowed  on  John.  Dr. 
Robert  Henry  says  that  "  this  article,  which  was  highly 
reasonable,  was  probably  inserted  at  the  desire  of  the 
King."  6 

The  substance  of  this  chapter  appears  in  the  reissues  of 

1  Harcourt,  Steward^  221,  treats  this  chapter  as  extending  to  manorial  courts  the 
principles  regulating  Xht  judicium  parium  and  amercements. 

^  Second  Institute,  77.  ^Qi.  mpra,  p.  113. 

*  Thomson,  Magna  Carta,  269,  and  authorities  there  cited. 

^  Const.  Hist.,  I.  570.     Cf.  supra,  p.  117. 

^History  of  Great  Britain,  VI.  74  (1823).  See  also  Henshall,  History  0/ South 
Britain,  cited  Thomson,  Magna  Carta,  268-9. 


CHAPTER  SIXTY  465 

12 17  and  1225;  but  its  force  there  is  possibly  somewhat 
impaired  by  the  addition  of  a  new  clause  reserving'  to  arch- 
bishops, bishops,  abbots,  priors,  templars,  hospitallers, 
earls,  barons,  and  all  other  persons  as  well  ecclesiastical  as 
secular,  all  the  franchises  and  free  customs  they  previously 
had  1 — a"  saving  clause  "  that  might  be  turned  to  various 
uses. 


CHAPTER  SIXTY-ONE. 

Cum  autem  pro  Deo,  et  ad  emendacionem  regni  nostri, 
et  ad  melius  sopiendam  discordiam  inter  nos  et  barones 
nostros  ortam,  hec  omnia  predicta  concesserimus,  volentes 
ea  Integra  et  firma  stabilitate  in  perpetuum^  gaudere, 
facimus  et  concedimus  eis  securitatem  subscriptam ;  vide- 
licet quod  barones  eligant  viginti  quinque  barones  de  regno 
quos  voluerint,  qui  debeant  pro  totis  viribus  suis  observare, 
tenere,  et  facere  observari,  pacem  et  libertates  quas  eis  con- 
cessimus,  et  hac  presenti  carta  nostra  confirmavimus,  ita 
scilicet  quod,  si  nos,  vel  justiciarius  noster,  vel  ballivi 
nostri,  vel  aliquis  de  ministris  nostris,  in  aliquo  erga 
aliquem  deliquerimus,  vel  aliquem  articulorum  pacis  aut 
securitatis  transgressi  fuerimus,  et  delictum  ostensum  fuerit 
quatuor  baronibus  de  predictis  viginti  quinque  baronibus, 
illi  quatuor  barones  accedant  ad  nos  vel  ad  justiciarum 
nostrum,  si  fuerimus  extra  regnum,  proponentes  nobis 
excessum,  petent  ut  excessum  ilium  sine  dilacione  faciamus 
'Cmendari.  Et  si  nos  excessum  non  emendaverimus,  vel, 
si  fuerimus  extra  regnum  justiciarius  noster  non  emen- 
daverit,  infra  tempus  quadraginta  dierum  computandum 
a  tempore  quo  monstratum  fuerit  nobis  vel  justiciario  nostro 
si  extra  regnum  fuerimus,  predicti  quatuor  barones  referant 
causam  illam  ad  residuos  de  illis  viginti  quinque  baronibus, 
et  illi  viginti  quinque  barones  cum  communa  tocius  terre 
distringent  et  gravabunt  nos  modis  omnibus  quibus  pote- 

^See  c.  46  of  1217. 

2 The  words  "m  perpetiium''''  are  written  at  the  foot  of  one  of  the  Cottonian 
•versions.     See  supj'a,  1 66  n. 

2G 


466  MAGNA  CARTA 

runt,  scilicet  per  capcionem  castrorum,  terrarum,  posses- 
sionum,  et  aliis  modis  quibus  poterunt,  donee  fuerit 
emendatum  secundum  arbitrium  eorum,  salva  persona 
nostra  et  regine  nostre  et  liberorum  nostrorum;  et  cum 
fuerit  emendatum  intendent  nobis  sicut  prius  fecerunt. 
Et  quicumque  voluerit  de  terra  juret  quod  ad  predicta 
omnia  exequenda  parebit  mandatis  predictorum  viginti 
quinque  baronum,  et  quod  gravabit  nos  pro  posse  suo  cum 
ipsis,  et  nos  publice  et  libere  damus  licenciam  jurandi 
cuilibet  qui  jurare  voluerit,  et  nulli  umquam  jurare  pro- 
hibebimus.  Omnes  autem  illos  de  terra  qui  per  se  et 
sponte  sua  noluerint  jurare  viginti  quinque  baronibus,  de 
distringendo  et  gravando  nos  cum  eis,  faciemus  jurare 
eosdem  de  mandato  nostro,  sicut  predictum  est.  Et  si 
aliquis  de  viginti  quinque  baronibus  decesserit,  vel  a  terra 
recesserit,  vel  aliquo  alio  modo  impeditus  fuerit,  quominus 
ista  predicta  possent  exequi,  qui  residui  fuerint  de  pre- 
dictis  viginti  quinque  baronibus  eligant  alium  loco  ipsius, 
pro  arbitrio  suo,  qui  simili  modo  erit  juratus  quo  et  ceteri. 
In  omnibus  autem  que  istis  viginti  quinque  baronibus 
committuntur  exequenda,  si  forte  ipsi  viginti  quinque 
presentes  fuerint,  et  inter  se  super  re  aliqua  discordaverint, 
vel  aliqui  ex  eis  summoniti  nolint  vel  nequeant  interesse, 
ratum  habeatur  et  firmum  quod  major  pars  eorum  qui 
presentes  fuerint  providerit,  vel  preceperit,  ac  si  omnes 
viginti  quinque  in  hoc  consensissent ;  et  predict!  viginti 
quinque  jurent  quod  omnia  antedicta  fideliter  observabunt, 
et  pro  toto  posse  suo  facient  observari.  Et  nos  nichil 
impetrabimus  ab  aliquo,  per  nos  nee  per  alium,  per  quod 
aliqua  istarum  concessionum  et  libertatum  revocetur  vel 
minuatur;  et,  si  aliquid  tale  impetratum  fuerit,  irritum  sit 
et  inane  et  numquam  eo  utemur  per  nos  nee  per  alium. 

Since,  moreover,  for  God  and  the  amendment  of  our  kingdom 
and  for  the  better  allaying  of  the  quarrel  that  has  arisen  between 
us  and  our  barons,  we  have  granted  all  these  concessions,  de- 
sirous that  they  should  enjoy  them  in  complete  and  firm  endur- 
ance for  ever,  we  give  and  grant  to  them  the  under-written  security, 
namely,  that  the  barons  cJ^qqss  five-and-twenty  barons  of  the 
kingdom,  whomsoever  they  will,  who  shall  be  bound  with  all  their 
might,  to  observe  and  hold,  and  cause  to  be  observed,  the  peace 


CHAPTER  SIXTY-ONE  467 

and  liberties  we  have  granted  and  confirmed  to  them  by  this  ou 
present  Charter,  so  that  if  we,  or  our  justiciar,  or  our  bailiffs  or 
any  one  of  our  officers,  shall  in  anything'be  at  fault  towaTd  any- 
one, or  shall  have^broken  any  one  of  the  articles  of  the  peace  or 
of  this  security,  and  the  offence  be  notified  to  four  barons  of  the 
foresaid  five-and-twenty,  the  said  four  barons  shall  repair  to  us  (or 
our  justiciar,  if  we  are  out  of  the  realm)  and,  laying  the  trans- 
gression before  us,  petition  to  have  that  transgression  redressed 
without  delay.  And  if  we  shall  not  have  corrected  the  trans- 
gression (or,  in  the  event  of  our  being  out  of  the  realm,  if  our 
justiciar  shall  not  have  corrected  it)  within  forty  days,  reckoning 
from  the  time  it  has  been  intimated  to  us  (or  to  our  justiciar, 
if  we  should  be  out  of  the  realm),  the  four  barons  aforesaid 
shall  refer  that  matter  to  the  rest  of  the  five-and-twenty  barons, 
and  those  five-and-twenty  barons  shall,  together  with  the  com- 
munity of  the  whole  land,  distrain  and  distress  us  in  all  pos- 
sible ways,  namely,  by  seizing  our  castles,  lands,  possessions, 
and  in  any  other  way  they  can,  until  redress  has  been  obtained 
as  they  deem  fit,  saving  harmless  our  own  person,  and  the  persons 
of  our  queen  and  children ;  and  when  redress  has  been  obtained, 
they  shall  resume  their  old  relations  towards  us.  And  let  whoever 
in  the  country  desires  it,  swear  to  obey  the  orders  of  the  said  five- 
and-twenty  barons  for  the  execution  of  all  the  aforesaid  matters, 
and  along  with  them,  to  molest  us  to  the  utmost  of  his  power ;  and 
we  publicly  and  freely  grant  leave  to  every  one  who  wishes  to  swear, 
and  we  shall  never  forbid  anyone  to  swear.  All  those,  moreover, 
in  the  land  who  of  themselves  and  of  their  own  accord  are  un- 
willing to  swear  to  the  twenty-five  to  help  them  in  constraining  and 
molesting  us,  we  shall  by  our  command  compel  the  same  to  swear 
to  the  effect  foresaid.  And  if  any  one  of  the  five-and-twenty  barons 
shall  have  died  or  departed  from  the  land,  or  be  incapacitated  in 
any  other  manner  which  would  prevent  the  foresaid  provisions 
being  carried  out,  those  of  the  said  twenty-five  barons  who  are  left 
shall  choose  another  in  his  place  according  to  their  own  judgment, 
and  he  shall  be  sworn  in  the  same  way  as  the  others.  Further, 
in  all  matters,  the  execution  of  which  is  intrusted  to  these  twenty- 
five  barons,  if  perchance  these  twenty-five  are  present  and  dis- 
agree about  anything,  or  if  some  of  them,  after  being  summoned, 
are  unwilling  or  unable  to  be  present,  that  which  the  majority  of 
those  present  ordain  or  command  shall  be  held  as  fixed  and 
established,  exactly  as  if  the  whole  twenty-five  had  concurred  in 
this  ;  and  the  said  twenty-five  shall  swear  that  they  will  faithfully 
observe  all  that  is  aforesaid,  and  cause  it  to  be  observed  with  all 
their  might.  And  we  shall  procure  nothing  from  anyone,  directly 
or  indirectly,  whereby  any  part  of  these  concessions  and  liberties 
might  be  revoked  or  diminished ;  and  if  any  such  thing  has  been 
procured,  let  it  be  void  and  null,  and  we  shall  never  use  it 
personally  or  by  another. 


468  MAGNA  CARTA 

This  important  chapter  stands  by  itself,  providing 
machinery  for  enforcing  all  that  precedes  it.  It  thus 
forms  what  modern  jurisprudence  would  describe  as  the 
"  sanction  "  of  the  whole,  but  what  was  known  in  the  current 
phrase  of  its  own  day  as  "  the  form  of  security  "  {forma 
securitatis  ad  observandum  pacem  et  lihertates).^  It  con- 
tains the  only  executive  clause  of  the  Charter,  the  sole 
constitutional  machinery .^ 

I.  The  ''Security''  or  legal  Sanction.  The  procedure 
devised  for  enforcing  the  Charter  was  crude :  John  con- 
ferred upon  twenty-five  of  his  enemies  a  legal  right  to 
organize  rebellion,  whenever  in  their  opinion  he  had  broken 
any  one  of  the  provisions  of  Magna  Carta.  Violence 
might  be  legally  used  against  him,  until  he  redressed  their 
alleged  grievances  "  to  their  own  satisfaction  "  {secundum 
arhitrium  eoriirn).  If  it  had  been  possible  to  put  so  violent 
an  expedient  into  practice,  the  "sovereignty,"  or  supreme 
power  in  England,  would  have  been  split  into  two.  John 
would  have  held  the  sceptre  only  until  his  opponents 
declared  that  he  had  broken  the  Charter,  when,  by  his 
own  previously-granted  mandate,  it  would  pass  to  the 
twenty-five  barons  forming  what  has  been  variously  styled 
a  "  Committee  of  Remonstrance  and  Constraint "  or  a 
*'  Committee  of  Rebellion."  ^ 

The  procedure  for  redressing  grievances  is  described  in 
some  detail ;  the  wronged  party  must  make  known  his  case 
to  four  barons  of  the  twenty-five,  who  would  then  make  it 
known  to  the  King,  and  ask  redress.     If  John  refused  or 

^  This  phrase  occurs  in  the  49th  (and  last)  of  the  Articles,  as  the  title  of  a  clause 
separated  from  the  others  by  a  blank  of  the  width  of  several  lines  of  writing : 
'■^  Haec  est  forma  securitatis^''''  etc.  The  words  are  not  used  as  a  heading  in  the 
present  chapter  itself,  but  c.  52  refers  to  c.  61  as  the  clause  **z*«  securitate  pads" 
and  c.  62  refers  to  it  as  ^*  super  securitate  ista." 

*  Histoire  des  dues,  150,  has  a  commentary  on  this  chapter  :  **  Over  and  above 
all  this  they  desired  that  25  barons  should  be  chosen,  and  by  the  judgment  of  these 
25  the  King  should  govern  them  in  all  things,  and  through  them  redress  all  the 
wrongs  that  he  should  do  to  them,  and  they  also,  on  the  other  hand,  would 
through  them  redress  all  the  wrongs  that  they  should  do  to  him.  Also  they  further 
desired,  along  with  all  this,  that  the  King  should  never  have  power  to  appoint  a 
bailiff  in  his  land  except  through  the  25."    Cf.  supra,  p.  123  and  p.  177. 

'Cf.  S.  R.  Gardiner,  Short  History  of  England,  183  :  "a  permanent  organiza- 
tion for  making  war  against  the  King." 


CHAPTER  SIXTY-ONE  469 

unduly  delayed,  compulsion  might  be  used.  On  the  matter 
of  undue  delay,  the  Articles  of  the  Barons  said  "  within  a 
reasonable  time  to  be  determined  in  the  Charter."  The 
Charter  did  determine  this,  naming  forty  days.  Compul- 
sion might  take  any  form,  except  violence  against  the 
person  of  the  King,  or  of  his  wife  or  children. 

II.  Minor  details.  Although  the  whole  expedient  seems 
chimerical  to  the  modern  mind,  the  opposition  leaders  in 
1 2 15  evidently  thought  they  had  devised  a  practicable 
scheme  of  government.  This  is  shown  by  the  care  with 
which  they  elaborated  the  procedure. 

(i)  Appointment  of  the  twenty-five  executors.  The 
members  of  the  committee  were  to  be,  in  the  first  instance, 
"  elected  "  by  the  "  barons."  Vacancies  were  to  be  filled 
by  the  method  now  known  as  "  co-optation  "  :  the  com- 
mittee, once  appointed,  would  form  a  close  corporation ; 
no  one  uncongenial  to  the  majority  could  gain  admission 
— an  arrangement  with  a  thoroughly  oligarchic  flavour. 
The  provision  for  supplying  vacancies  caused  by  death 
proves  that  the  scheme  was  not  to  be  temporary. 

Writs,  issued  to  the  sheriffs  on  19th  June,  command  the 
enforcement  of  the  oath  to  the  twenty-five  barons,  but  do 
not  mention  them  by  name.  Matthew  Paris  supplies  the 
omission,  and  though  he  does  not  disclose  the  source  of 
his  information,  it  is  unlikely  that  so  comprehensive  a  list 
could  be  entirely  a  work  of  the  imagination. ^  They  occur 
in  the  following  order,  the  earls  of  Hertford,  Aumale, 
Gloucester,  Winchester,  Hereford,  Norfolk,  and  Oxford, 
William  Marshall  the  younger,  Robert  fitz  Walter  the 
elder,  Gilbert  de  Clare,  Eustace  de  Vesci,  Hugh  Bigod, 
William  of  Mowbray,  William  Hardell  (Mayor  of  London), 
William  de  Lanvalei,  Robert  de  Ros,  John  de  Lacy 
(Constable  of  Chester),  Richard  de  Perci,  John  fitz  Robert, 
William  Mallet,  GeoftVey  de  Say,  Roger  de  Mumbezon, 
William  of  Huntingfield,  Richard  de  Muntfitchet,  and 
William  of  Albini.^     There  are  here  no  churchmen  and 

1  R.  Wendover,  from  whom  Paris  borrows  so  freely,  gives  no  list. 

2 The  list  is  from  Matthew  Paris,  II.  604-5,  as  corrected  by  Blackstone,  Great 
Charter,  p.  xx,  after  collation  with  a  marginal  note  on  the  Harleian  MS.  of  the 


470  MAGNA  CARTA 

no  members  of  the  moderate  party  whose  names  appear  in 
the  preamble.  All  except  two,  or  at  most  three,  were 
declared  enemies  of  John.^  It  was  an  oligarchy  of  dis- 
affected Crown  tenants,  whose  baronial  homogeneity  was 
only  broken  by  the  presence  of  the  Mayor  of  London. 
Such  a  committee  was  not  likely  to  use  its  powers  to  further 
other  interests  than  its  own. 

(2)  A  majority  to  form  a  quorum.  Driven  by  necessity 
the  barons  devised,  or  stumbled  upon,  a  peculiarly  modern 
expedient.  Unanimity  would  be  difficult  to  obtain.  It  was 
provided,  accordingly,  that  the  will  of  the  majority  of  those 
present  should  prevail.  It  would  be  inaccurate  to  say,  in 
modern  phraseology,  that  thirteen  formed  a  quorum,  since 
the  quorum  varied  with  the  number  of  those  present.  No 
provision  was  made  for  summoning  or  constituting  this 
committee,  and  room  was  thus  left  for  packed  meetings : 
one  faction,  hurriedly  convened,  might  usurp  the  rights  of 
the  whole  body.  The  precedent  tentatively  introduced,  for 
allowing  a  majority  to  act  for  the  whole,  was  followed 
only  timidly  and  at  intervals.  Still,  its  appearance  in 
John's  Charter  marks  a  stage  in  the  advance  of  the  principle 
of  modern  politics  which  substitutes  the  "  counting  of  heads 
for  the  breaking  of  them."  2 

(3)  The  suh-committee  of  four.  Four  of  the  twenty-five 
executors  were  to  act  as  intermediaries  between  aggrieved 
individuals  and  the  King.  Such  a  position  involved  dis- 
cretionary powers;  for,  if  the  four  refused  to  endorse  the 
justice  of  any  complaint,  John  also  would  be  in  safety  to 
refuse. 3 

charter  (cf.  supra,  p.  i68  n.).  For  biographical  information,  see  Thomson,  Magna 
Carta,  270-312. 

1  These  three  were  Earl  Aumale  (a  title  sometimes  exchanged  for  Earl  of  York, 
see  Round,  Geoffrey  de  Mandeville,  157  n.),  William  of  Albini,  and  Geoffrey  de 
Say  (see  Stubbs,  Const.  Hist.,  I.  583). 

2  This  is  not  the  earliest  reference  in  English  law  to  the  binding  power  of  a 
majority;  Liebermann,  Gesetze,  II.  575,  points  to  Leges  Heririci,  c.  5,  s.  6  {.ibid., 
I.  549)  as  formulating  the  principle. 

'  An  alternative  explanation  is  possible,  namely,  that  the  function  of  intermediary 
might  be  exercised  by  any  four  of  the  twenty-five.  In  that  view,  an  aggrieved 
individual  might  place  pressure  on  the  King  if  he  persuaded  any  four  to  support  his 
claim. 


CHAPTER  SIXTY-ONE  47i 

(4)  Local  agents  of  the  twenty-five  executors.  In  each 
county  the  twelve  knights,  whose  original  function  was  to 
preside  at  inquiries  into  "evil  customs,"  came  to  act  as 
local  representatives  of  the  revolutionary  committee,  being 
armed  with  power  to  constrain  the  sheriff  to  carry  out  the 
provisions  of  Magna  Carta,  very  much  as  the  twenty-five 
were  authorized  to  constrain  the  King.  In  particular,  these 
knights  were  charged  with  enforcement  of  the  oath  of 
obedience  to  the  revolutionary  committee,  and  with  con- 
fiscating the  property  of  all  who  refused.^ 

(5)  The  part  to  he  played  by  the  public.  John  authorized 
his  subjects  to  side  against  him,  if  he  should  violate  the 
Charter  :  his  general  mandate  was  granted  to  the  twenty-five 
"  cum  communa  totius  terrce,"  while  licence  was  "  freely  and 
publicly  "  bestowed  on  everyone  so  disposed,  to  swear  obedi- 
ence to  the  executors.  Two  aspects  of  this  provision  require 
attention  :  (a)  Its  relation  to  allegiance  and  treason.  John 
solemnly  authorized  his  subjects,  in  certain  circumstances, 
to  transfer  their  allegiance  from  himself  to  the  committee  of 
his  foes.  If  they  refused,  he  agreed  to  their  compulsion ; 
and  on  27th  June,  1215,  writs  were  actually  issued  instruct- 
ing the  seizure  of  the  lands  and  goods  of  all  who  would  not 
swear  to  obey  the  twenty-five.^  (b)  Communa  totius  terrce. 
The  "  community  of  the  whole  land  "  was  thus  to  afford 
active  help  in  subjecting  the  King  to  the  reign  of  law ;  and 
the  phrase  has  been  pressed  into  the  service  of  democracy 
by  enthusiasts,  who  seek  to  magnify  modern  conceptions  by 
finding  their  roots  in  the  past.  Few  words  of  medieval 
Latin  offer  a  more  tempting  field  to  enquirers  than  this 
communa,  which,  with  its  English  and  French  equivalents, 
holds  the  key  to  many  problems  of  constitutional  origins. 
The  appearance  in  Magna  Carta  of  a  body  described  as  a 
"  commune,"  in  conjunction  with  an  oath  of  obedience  to  a 
revolutionary  committee,  suggests  comparison  with  the 
form  of  civic  constitution  known  in  that  age  as  "  the  sworn 
commune."^     The  "communa"  referred  to  in  chapter  61 

1  Cf.  supra,  c.  48.  2  See  Appendix-. 

^  It  was  fourteen  years  since  London  had  extorted  its  **  commune,"  in  this  sense, 
from  Prince  John  ;  cf.  supra,  c.  13. 


472  MAGNA  CARTA 

was  something  widely  different :  to  the  barons  at  Runny- 
mede  it  may  have  meant  either  the  entire  body  of  feudal 
tenants  or  only  the  magnates ;  but  medieval  analogies  make 
it  impossible  that  the  word  could  embrace  the  free  peasantry, 
still  less  the  villeins  of  England.  The  occurrence  of  such 
a  word  is  far  from  proving  that  the  Charter  rests  on  any 
broad  or  popular  basis. 

III.  Relations  to  Contemporary  Theory.  Clumsy  and 
impracticable  as  the  whole  scheme  appears  to  modern  eyes, 
it  was  quite  in  accord  with  medieval  theory.  The  concep- 
tion of  a  relation  founded  upon  contract  between  lord  and 
vassal  lies  at  the  root  of  feudalism.  If  either  party  glaringly 
broke  the  terms  of  the  compact,  the  other  was  justified  in 
repudiating  the  relationship,  but  he  must  observe  due 
formalities.  Diffidatio,  intimated  to  his  lord,  must  precede 
any  attempt  of  the  vassal  to  redress  his  wrongs  by  force. 
The  barons  at  Runnymede,  having  complied  with  this  pre- 
liminary, had  for  the  moment  ceased  to  owe  fealty  to  John. 
In  reserving  power  to  appoint  an  Executive  Committee 
(even  if  this  be  regarded  as  implying  a  right  of  legalized 
rebellion),  as  a  condition  precedent  to  a  renewal  of  allegi^ 
ance,  they  moved  in  the  direction  of  legal  restraint  as 
opposed  to  revolutionary  violence.  The  right  here  recog- 
nized by  John,  likely  as  it  might  be  to  lead  to  hostilities, 
was  in  theory  and  intention  an  honest  effort  to  obviate  war 
by  recourse  to  the  nearest  approximation  to  constitutional 
action  then  available.  It  was,  further,  an  attempt  to  sub- 
stitute united  action  of  the  body  of  feudal  tenants  (com- 
muna  totius  terrce)  for  the  individual  vassal's  right  of 
private  judgment,  claimed  and  sometimes  exercised  in  that 
age,  on  the  European  continent,  and  actually  confirmed  in 
1222  by  Andreas  II.  of  Hungary  by  his  Bulla  Aurea.^ 

The  expedient  contained  in  this  chapter  is  a  logical  deduc- 
tion from  the  vassal's  right  of  defiance  as  a  prelude  to 
private  war  against  a  lord  who  has  wronged  him.  It  was 
no  innovation,  but  something  found  by  the  barons  in  feudal 
law.2     Foreign  parallels  have  been  found  for  it,  not  only  in 

^Hantos,  Magna  Caria,  149,  198.     Cf.  Gneist,  Eng.  Const.,  251. 
2  Adams,  Origin,  181  ff. 


CHAPTER  SIXTY-ONE  473 

the  more  anarchic  procedure  of  the  Hungarian  Bulla  Aurea, 
but  also  in  the  institutions  of  Aragon  and  elsewhere. ^ 
When  the  baronial  leaders  in  1263  performed  diffidalio,  they 
echoed  the  words  of  this  chapter,  "  salva  persona  regis, 
reginae  et  liheroriim  suoru7n."^ 

This  chapter  has  been  acclaimed  as  embodying  for  the 
first  time  the  idea  that  formed  "  the  true  corner  stone  of  the 
English  Constitution,"^  namely,  the  right  to  compel  an 
erring  King  to  bow  to  a  body  of  law  that  lies  outside  his 
will.  There  is  much  to  be  said  for  this  view.  It  is  quite 
consistent,  however,  to  combine  an  appreciation  of  the  value 
of  this  conception,  with  an  admission  of  the  defective  and 
clumsy  nature  of  the  machinery  by  which  a  first  attempt  was 
made  to  realize  it.^ 

IV.  Modern  Criticism.  Until  the  last  twenty-five  years 
or  so,  commentators  were  wont  to  credit  the  framers  of 
Magna  Carta  with  anticipating  most  of  the  cardinal  prin- 
ciples of  the  modern  Constitution.  In  combating  such 
exaggerations,  it  would  not  be  unnatural  to  lay  emphasis 
on  the  extent  to  which  the  machinery  of  this  chapter  is 
condemned  by  the  standards  of  the  nineteenth  century. 
Yet  it  is  well  to  steer  a  middle  course,  neither  praising  the 
men  of  12 15,  nor  blaming  them  for  failing  to  achieve  the 
impossible. 

The  faults  of  the  scheme,  whether  viewed  from  the  side  of 
modern  theory  or  of  modern  practice,  are  obvious.  It  was 
a  violent  measure,  full  of  immediate  dangers,  and  calculated 
to  exercise  a  baneful  influence  on  constitutional  development 
in  the  future.  The  fact  that  Magna  Carta  provided  no 
better  sanction  for  its  own  enforcement  than  the  right  of 
legalized  rebellion,  has  already  been  discussed  as  its  cardinal 
defect.^  It  is  instructive  to  note  a  few  of  its  other  defects  in 
detail. 

(i)  The    scheme    challenged    hostility    by    its    want    of 

^Hantos,  op.  cit.,  150.  Adams,  Origin,  181  n.,  suggests  a  parallel  from  the 
kingdom  of  Jerusalem.  Dr.  Riess,  Historische  Zeitschrift,  1906,  p.  170,  compares 
also  the  Ephors  of  Sparta. 

^  Liber  de  Antiquis  Legibus,  53.  ^  Adams,  Pol.  Hist.  Eng.,  11.  439. 

*Cf.  Adams,  Origin,  276  n.  ^See  supra,  p.  129. 


474  MAGNA  CARTA 

moderation.  On  every  vexed  political  question  of  the  day, 
John's  authority  would  have  been  superseded  by  that  of 
twenty-five  of  the  most  hostile  faction  of  the  baronage.  If 
the  King  thought  himself  aggrieved  in  anything,  he  would 
require  to  plead  his  cause  before  a  tribunal  in  which  his 
opponents  sat  as  judges.^  The  scheme  was  thus  repugnant 
to  loyal  Englishmen,  who  cherished  a  respect  for  the  mon- 
archy. No  King  would  submit  tamely  to  remain  a  sove- 
reign, whose  "  sovereignty  "  existed  on  sufferance  of  his 
enemies.  The  powers  thus  conferred  in  12 15  were  more 
sweeping  than  those  conferred  on  a  similar  committee  in 
1258,  and  yet  the  Parliament  which  appointed  the  latter  has 
been  branded  as  "the  Mad  Parliament,"  because  of  the 
violence  of  its  measures. 

(2)  Rebellion,  even  where  morally  justified,  is  necessarily 
illegal ;  to  attempt  to  map  out  for  it  a  legitimate  sphere  of 
action  is  to  attempt  the  logically  impossible.  The  barons 
had  failed  to  rise  to  the  true  conception  of  a  limited  mon- 
archy; their  scheme  recognized  a  King  still  absolute  in 
some  matters,  but  in  others  powerless  and  abject.  The 
powers  of  the  twenty-five,  a  body  which  received  no  proper 
organization,  were  those  of  aggression  rather  than  of 
administration.  Viewed  in  this  modern  light,  the  claims  of 
the  barons  to  constructive  statesmanship  rank  low. 

(3)  The  powers  of  the  revolutionary  committee,  excessive 
though  ill-defined,  backed  by  the  sworn  obedience  of  all 
classes  of  the  nation,  would  tend  completely  to  paralyze  the 
King.  The  nominal  sovereign,  nervous  under  this  sword 
of  Damocles,  would  lose  all  power  of  initiative,  while  the 
committee,  powerful  to  reduce  him  to  impotence,  would  be 
powerless  to  goad  him  into  action  or  to  act  in  his  stead. 
The  revolutionary  committee  had  been  planned  as  a  drag 
on  a  bad  executive,  not  as  a  good  executive  to  take  its  place. 

(4)  Even  as  a  drag,  the  efficiency  of  the  committee  would 
have  been  neutralized  in  either  of  two  contingencies  :  if  the 
l)arons  composing  it  disagreed  among  themselves,  or,  if  the 

^Dr.  Riess,  Historische  Zeitschrift,  1906,  p.  170,  thinks  this  goes  too  far.  Cf., 
however,  Adams,  Origin,  179:  John  "was  reduced  to  the  function  of  executing 
the  judgments  of  a  court  not  his  own." 


CHAPTER  SIXTY-ONE  475 

King  refused  to  surrender.  Not  a  step  to  restrain  the  King 
could  legally  be  taken,  until  he  had  received  formal  intima- 
tion followed  by  an  interval  of  forty  days,  during  which  he 
might  complete  his  preparation  for  war  without  fear  of 
interruption. 

(5)  If  the  scheme  of  the  barons  seems  ill-suited  to  the 
needs  of  the  hour  of  its  conception,  it  was  fraught  with 
even  greater  dangers  to  the  future  development  of  the 
English  constitution.  The  problem  it  sought  to  solve  was 
one  of  no  transient  or  unimportant  nature  :  the  barons 
sought  the  best  method  of  turning  royal  promises  into  laws 
which  succeeding  Kings  must  obey.  In  attempting  this, 
Magna  Carta  moved  along  lines  that  were  radically  wrong ;  ^ 
which,  if  not  departed  from  in  time,  would  have  rendered 
any  enduring  progress  impossible.  The  statesmanship 
which,  while  leaving  one  King  on  the  throne,  subjected  him 
to  the  dictation  of  "  five-and-twenty  over-kings  "  was  crude 
and  ill-advised.  It  is  true  that  the  party  of  reform,  through- 
out the  long  reign  of  Henry  III.,  clung  to  the  same 
erroneous  solution ;  but  they  met  with  no  success.  After 
half  a  century  of  unrest,  a  settlement  seemed  as  far  distant 
as  before.  The  dangers  of  schemes  like  those  of  12 15,  1244, 
and  1258  are  clearly  seen  in  contrast  with  the  more  tactful 
efforts  of  Edward  I.  towards  a  true  solution,  along  lines 
leading  in  due  time  to  complete  success. 

The  true  policy  for  the  barons  was  to  use  the  King's  own 
administrative  machinery  and  the  King's  own  servants  to 
control  the  King.  The  principle  was  slowly  established 
that  the  sovereign  could  perform  no  single  act  of  preroga- 
tive except  through  the  agency  of  a  particular  officer  or 
organ  of  the  royal  household;  while  very  gradually  the 
doctrine  of  ministerial  responsibility  grew  up,  compelling 
each  officer  of  the  Crown  to  obey  not  only  the  law  of  the 
land,  but  also  the  Commune  Concilium.^  fast  changing  into 
the  modern  Parliament.  The  credit  of  starting  the  consti- 
tution on  its  right  line  of  development  is  in  great  measure 
due  to  Edward  i.^ 

'  Cf.  Adams,  Origin,  179  :  "  It  was  not  finally  to  be  the  way  of  the  constitution." 
^Cf.  supra^  pp.  159-164,  for  a  sketch  of  Edward's  policy. 


476  MAGNA  CARTA 

V.  Failure  of  the  Scheme,  Almost  before  John's  Charter 
had  been  engrossed  and  sealed,  the  futility  of  its  "  sanction  " 
was  recognized.  Each  side  grew  suspicious  and  demanded 
new  "  sanctions  "  not  contained  in  the  Charter. 

(i)  Quis  custodiet  ipsos  custodes?  Magna  Carta,  assum- 
ing apparently  that  perfect  trust  could  be  placed  in  the 
revolutionary  committee,  provided  no  machinery  for  con- 
trolling them,  no  guarantee  that  they  would  observe  the 
Charter.  The  futility  of  this  complacency  was  soon  mani- 
fest. One  tyrant  had  brought  distress  on  the  whole  nation  ; 
and  now  he  was  to  be  superseded  by  five-and-twenty.  Who 
was  to  restrain  the  new  tyrants  ?  A  second  committee  was 
nominated,  partly  to  assist  and  partly  to  control  the  twenty- 
five.  Matthew  Paris  ^  describes  it  as  composed  of  thirty- 
eight  "  Ohsecutores  et  Observatores,"  including  the  Earl 
Marshal,  Hubert  de  Burgh,  the  earls  of  Arundel  and 
Warenne,  and  other  prominent  members  of  the  moderate 
party,  not  unfriendly  to  the  King.  Dr.  Stubbs  dismisses 
their  relations  to  the  executors  with  the  remark  that  they 
"swore  to  obey  the  orders  of  the  twenty-five." ^  Miss 
Norgate  takes  what  seems  to  be  a  better  view,  in  em- 
phasizing, as  the  chief  reason  for  their  appointment,  the 
duty  of  compelling  "  both  the  King  and  the  twenty-five 
to  deal  justly  with  one  another."^  The  thirty-eight  were 
required  to  constrain  the  twenty-five,  as  the  twenty-five 
constrained  the  King.^ 

(2)  Suspicions  of  the  barons*  good  faith.  There  is 
evidence  that  the  King  was  distrustful  of  the  barons'  good 
faith,  and  desired  on  his  part  some  "  sanction  "  that  they 
would  not  again  renounce  allegiance.  The  barons'  pro- 
mise to  grant  John  security,  and  the  written  protest  against 
their  breach  of  faith,  made  by  Langton  and  other  prelates 
at  John's  request,  have  already  been  described.^ 

1  Chron.  Maj.,  II.  605-6.         -  Const.  Hist.,  I.  583  n.         ^John  Lackland,  236. 

^  One  version  of  the  narrative  of  Matthew  Paris  is  fuller  than  the  other.  "  Isti 
omnes  Juraverunt  quod  ohsequerenttw  mandato  viginti  qninqne  baronuvi "  of  the 
first  becomes  "  Omnes  isti  juravertmt  cogere  si  opus  esset  ipsos  xxv.  barones  ut 
redificarent  regem.  Et  etiam  cogere  ipsnm  si  niutato  ani mo  forte  7'ecalcitraret'''' 
in  the  second,  II.  606  n. 

^  See  supra,  p.  43,  and  Proter-t  in  Appendix. 


CHAPTER  SIXTY-ONE  477 

(3)  Suspicions  of  John's  good  faith.  The  barons,  on 
their  part,  soon  came  to  the  conclusion  that  the  Com- 
mittee, in  spite  of  all  its  powers,  formed  an  inadequate 
sanction  against  John.  They  demanded  further  "  security." 
The  city  of  London  was  placed  in  their  hands,  and  the 
Tower  of  London  in  the  neutral  custody  of  the  primate,  as 
pledges  of  John's  good  faith,  until  15th  August  or  longer 
if  need  were.  Those  terms  were  reduced  to  writing  in  a 
document  entitled  "  Conventio  facta  inter  Re  gem  Angliae 
et  harones  ejusdem  regni,"  which  thus  supplied  a  new 
"form  of  security,"  supplementing,  if  not  superseding, 
that  contained  in  chapter  61.^ 

(4)  Precautions  against  papal  intervention.  The  Articles 
of  the  Barons  afford  evidence  of  the  framers'  suspicions 
that  John  would  apply  to  Rome  for  release  from  his  bargain. 
They  demanded  that  the  English  prelates  and  the  papal 
legate  should  become  the  King's  sureties,  that  he  would 
not  invite  the  Pope  to  invalidate  the  Charter.  If  Pandulf, 
as  the  Pope's  accredited  agent,  had  put  seal  to  such  a 
document,  he  would  have  seriously  embarrassed  his  august 
master. 

Two  important  alterations  in  the  completed  Charter  were 
effected,  however,  whether  at  John's  instance,  or  at  that  of 
Pandulf,  or  of  the  English  prelates,  is  matter  of  conjecture. 
All  mention  of  Innocent  by  name  was  omitted,  the  clause 
being  made  quite  general  in  its  terms  :  John  promised  to 
procure  a  dispensation  "  from  no  one  " ;  while  the  question 
of  sureties  was  ignored.  Innocent  was  left  free  to  support 
John's  policy  of  repudiation. 2 

^  See  suj>ra,  p.  43.  The  text  is  given  in  Appendix.  Thirteen  of  the  twenty-five 
executors  are  mentioned  by  name  as  agreeing  to  this  new  treaty ;  cf.  Wendover, 
III.  319.  A  third  sanction  appears  in  the  garbled  versions  of  the  Charter  given  by 
Wendover  (III.  317)  and  M.  Paris  (II.  603)  :  the  constables  of  the  four  royal 
castles  of  Northampton,  Kenilworth,  Nottingham,  and  Scarborough  were  to  swear 
to  hold  these  strongholds  under  orders  of  the  twenty-five.  This  clause  has  not 
been  found  in  any  known  copy  of  any  issue  of  Magna  Carta  :  cf.  Luard's  Preface 
to  M.  Paris,  II.  xxxiii  to  xxxvi. 

^Cf.  supra,  P'  45* 


478  MAGNA  CARTA 


CHAPTER  SIXTY-TWO. 

Et  omnes  malas  voluntates,  indignaciones,  et  rancores  ortos 
inter  nos  et  homines  nostros,  clericos  et  laicos,  a  tempore 
discordie,  plene  omnibus  remisimus  et  condonavimus. 
Preterea  omnes  transgressiones  factas  occasione  ejusdem 
discordie,  a  Pascha  anno  regni  nostri  sextodecimo  usque 
ad  pacem  reformatam,  plene  remisimus  omnibus,  clericis  et 
laicis,  et  quantum  ad  nos  pertinet  plene  condonavimus.  Et 
insuper  fecimus  eis  fieri  litteras  testimoniales  patentes 
domini  Stephani  Cantuariensis  archiepiscopi,  domini 
Henrici  Dublinensis  archiepiscopi,  et  episcoporum  predic- 
torum,  et  magistri  Pandulfi,  super  securitate  ista  et  conces- 
sionibus  prefatis. 

And  all  the  ill-will,  hatreds,  and  bitterness  that  have  arisen 
between  us  and  our  men,  clergy  and  lay,  from  the  date  of  the 
quarrel,  we  have  completely  remitted  and  pardoned  to  everyone. 
Moreover,  all  trespasses  occasioned  by  the  said  quarrel,  from 
Easter  in  the  sixteenth  year  of  our  reign  till  the  restoration  of 
peace,  we  have  fully  remitted  to  all,  both  clergy  and  laymen,  and 
completely  forgiven,  as  far  as  pertains  to  us.  And,  on  this 
head,  we  have  caused  to  be  made  for  them  letters  testimonial 
patent  of  the  lord  Stephen,  archbishop  of  Canterbury,  of  the 
lord  Henry,  archbishop  of  Dublin,  of  the  bishops  aforesaid,  and 
of  Master  Pandulf  as  touching  this  security  and  the  concessions 
aforesaid. 

The  clauses  that  follow  the  forma  securitatis  are  of  a 
formal  nature.  The  present  chapter,  after  making  a  well- 
meant  declaration  that  bygones  should  be  bygones,  so  that 
peace  and  goodwill  should  everywhere  prevail — a  pious 
aspiration  doomed  to  speedy  disillusion — proceeds  to 
authorize  the  prelates  to  issue,  under  their  seals,  certified 
copies  of  the  Great  Charter.  Such  letters  were  actually 
issued,  and  their  terms  are  preserved  in  the  Red  Book  of 
the  Exchequer. 1 

^See  folio  234.  Compare  supra,  p.  41  ;  also  R.  L.  Poole  in  Engl.  Hist. 
Rev.,  XXVIII.  448  fF.  The  text,  as  reproduced  by  Bemont,  Chartes,  35,  runs  as 
follows:  "Omnibus  Christi  fidelibus  ad  quos  presens  scriptum  pervenerit, 
Stephanus  Dei  gratia  Cantuariensis  archiepiscopus,  tocius  Anglie  primas  et  sancte 
romane  ecclesie  cardinalis,  Henricus,  eadem  gratia  Dublinensis  archiepiscopus, 


CHAPTER  SIXTY-THREE  479 


CHAPTER  SIXTY-THREE. 

QuARE  volumus  et  firmiter  precipimus  quod  Anglicana 
ecclesia  libera  sit  et  quod  homines  in  regno  nostro  habeant 
et  teneant  omnes  prefatas  libertates,  jura,  et  concessiones, 
bene  et  in  pace,  libere  et  quiete,  plene  et  integre  sibi  et 
heredibus  suis,  de  nobis  et  heredibus  nostris,  in  omnibus 
rebus  et  locis,  in  perpetuum,  sicut  predictum  est.  Juratum 
est  autem  tarn  ex  parte  nostra  quam  ex  parte  baronum, 
quod  hec  omnia  supradicta  bona  fide  et  sine  malo  ingenio 
observabuntur.  Testibus  supradictis  et  multis  aliis.  Data 
per  manum  nostram  in  prato  quod  vocatur  Ronimede,  inter 
Windlesoram  et  Stanes,  quinto  decimo  die  Junii,  anno  regni 
nostri  decimo  septimo. 

Wherefore  it  is  our  will,  and  we  firmly  enjoin,  that  the  English 
Church  be  free,  and  that  the  men  in  our  kingdom  have  and 
hold  all  the  aforesaid  liberties,  rights,  and  concessions,  well  and 
peaceably,  freely  and  quietly,  fully  and  wholly,  for  themselves 
and  their  heirs,  of  us  and  our  heirs,  in  all  respects  and  in  all 
places  for  ever,  as  is  aforesaid.  An  oath,  moreover,  has  been 
taken,  as  well  on  our  part  as  on  the  part  of  the  barons,  that  all 
these  conditions  aforesaid  shall  be  kept  in  good  faith  and  without 
evil  intent.  Given  under  our  hand — the  above-named  and  many 
others  being  witnesses — in  the  meadow  which  is  called  Runny- 
mede,  between  Windsor  and  Staines,  on  the  fifteenth  day  of 
June,  in  the  seventeenth  year  of  our  reign. 

This  last  of  the  sixty-three  chapters  into  which  Magna 
Carta  has  been  divided  by  modern  commentators,  contains 
little  that  calls  for  remark.  Beginning  with  a  repetition  of 
the   declarations   made   in   chapter   one   that   the   English 

Willelmus  Londoniensis,  Petrus  Wintoniensis,  Joscelinus  Bathoniensis  et  Glas- 
toniensis,  Hugo  Lincolniensis,  Walterus  Wigorniensis,  Willelmus  Coventriensis 
et  Benedictus  Roffensis,  divina  miseracione  episcopi,  et  magister  Pandulfus  domini 
pape  subdiaconus  et  familiaris,  salutem  in  Domino.  Sciatis  nos  inspexisse  cartam 
quam  dominus  noster  Johannes  illustris  rex  Anglie  fecit  comitibus,  baronibus  et 
liberis  hominibus  suis  Anglie  de  libertate  sancte  ecclesie  et  libertatibus  et 
liberis  consuetudinibus  suis  eisdem  ab    eo  concessis    sub    hac    forma     .     .     . 

[Here  follows  the  text  of  John's  Magna  Carta] 

Et  ne  huic  forme  predicte  aliquid  possit  addi  vel  ab  eadem  aliquid  possit  subtrahi 
vel  minui,  huic  scripto  sigilla  nostra  apposuimus.' 


J  C  i  >1  <    I  ^  ,    \X^^^ 


48o  MAGNA  CARTA 

church  should  be  free  (omitting,  however,  any  second  refer- 
ence to  canonical  election)  and  that  homines  in  regno  nostro 
should  have  and  hold  all  of  the  aforesaid  liberties,  rights 
and  concessions,  it  records  that  both  parties  had  taken  oath 
to  observe  its  contents  in  good  faith. ^  The  magnates  named 
in  the  preamble  were  thereafter,  along  with  many  others 
unnamed,  referred  to  collectively  as  witnesses.  The 
Charter  concludes  with  a  declaration  that  it  has  been  "  given 
by  our  hand,"  and  the  place  and  date  are  specified.  The 
actual  "  giving  "  by  John's  hand  was  effected  by  impress  of 
his  great  seal .2 

^Cf.  stepra,  p.  40. 

^  There  are  no  signatures  to  the  document.  The  frequent  references  to  '*  the 
signing  of  the  Great  Charter"  are  thus  inaccurate,  if  '"signing"  is  taken  in  its 
modern  sense  of  "subscribing,"  but  may  perhaps  be  justified  by  a  reference  to 
signum  in  its  original  meaning  of  **a  seal."  To  imprint  a  seal  was,  in  a  sense, 
"  to  sign."  Reasons  have  already  been  given  for  holding  that  Magna  Carta,  in 
spite  of  its  mention  of  its  own  date  as  15th  June,  was  actually  sealed  on  the  19th. 
See  supra,  pp.  48-9. 


APPENDIX. 

DOCUMENTS  RELATIVE  TO,  OR  ILLUSTRATIVE  OF, 
MAGNA  CARTA. 

I.   THE  CHARTER  OF   LIBERTIES  OF   HENRY  I.i 

(iioo.) 

Henricus    Del    gratia    rex    Anglorum    omnibus    baronibus    et 
fidelibus  suis  tarn  Francigenis  quam  Anglis  salutem. 

1.  Sciatis  me  Dei  misericordia  et  communi  consilio  baronum 
regni  Anglie  ejusdem  regni  regem  coronatum  esse.  Et  quia 
regnum  oppressum  erat  injustis  exactionibus,  ego,  respectu  Dei 
et  amore  quem  erga  vos  omnes  habeo,  sanctam  Dei  ecclesiam 
imprimis  liberam  facio  :  ita  quod  nee  vendam  nee  ad  firmam 
ponam  nee,  mortuo  archiepiscopo  sive  episcopo  sive  abbate, 
aliquid  accipiam  de  dominio  ecclesie  vel  de  hominibus  ejus, 
donee  successor  in  eam  ingrediatur.  Et  omnes  malas  con- 
suetudines,  quibus  regnum  Anglie  injuste  opprimebatur,  inde 
aufero ;    quas  malas  consuetudines  ex  parte  hie  pono  : 

2.  Si  quis  baronum  meorum,  comitum,  sive  aliorum  qui  de  me 
tenent,  mortuus  fuerit,  heres  suus  non  redimet  terram  suam 
sicut  faciebat  tempore  fratris  mei,  sed  legitima  et  justa  releva- 
tione  relevabit  eam.  Similiter  et  homines  baronum  meorum 
legitima  et  justa  relevatione  relevabunt  terras  suas  de  dominis 
suis. 

3.  Et  si  quis  baronum  vel  aliorum  hominum  meorum  filiam 
suam  nuptum  tradere  voluerit,  sive  sororem,  sive  neptem,  sive 
cognatam,  mecum  inde  loquatur.  Sed  neque  ego  aliquid  de 
suo   pro   hac  licentia   accipiam,    neque   defendam   ei   quin   eam 

1  The  text  is  taken  from  Liebermann,  Gesetze,  I.  521.  Cf.  Trans.  li.H.S. 
viii.  21  ff.,  for  an  exhaustive  discussion  of  the  various  copies  of  the  lost  charter. 
For  commentary,  cf.  supra,  pp.  96-101.  Liebermann  shows  the  striking  variations 
of  the  opening  and  ending  clauses  :  the  preamble  varied  with  the  persons  to  whom 
each  copy  was  addressed.     Cf.  R.  L.  Poole,  E^ig.  Hist.  Rev,^  XXVIII.  444  ff. 

2  H 


482  APPENDIX 

d€t,  excepto  si  earn  vellet  jungere  inimico  meo.  Et  si,  mortuo 
barone  vel  alio  homine  meo,  filia  heres  remanserit,  illam  dabo 
consilio  baronum  meorum  cum  terra  sua.  Et  si,  mortuo  marito, 
uxor  ejus  remanserit  et  sine  liberis  fuerit,  dotem  suam  et 
maritationem  habebit;  et  earn  non  dabo  marito,  nisi  secundum 
velle  suum. 

4.  Si  vero  uxor  cum  liberis  remanserit,  dotem  quidem  et 
maritationem  suam  habebit,  dum  corpus  suum  legitime  serva- 
verit ;  et  eam  non  dabo,  nisi  secundum  velle  suum.  Et  terre  et 
liberorum  custos  erit  sive  uxor  sive  alius  propinquorum,  qui 
justius  esse  debebit.  Et  precipio  ut  barones  mei  similiter  se 
contineant  erga  filios  et  filias  vel  uxores  hominum  suorum. 

5.  Monetagium  commune  quod  capiebatur  per  civitates  et 
comitatus,  quod  non  fuit  tempore  regis  Eadwardi,  hoc  ne  amodo 
sit,  omnino  defendo.  Si  quis  captus  fuerit,  sive  monetarius^ 
sive  alius,  cum  falsa  moneta,  justicia  recta  inde  fiat. 

6.  Omnia  placita  et  omnia  debita  que  fratri  meo  debebantur 
condono  exceptis  rectis  firmis  meis  et  exceptis  illis  que  pacta 
erant  pro  aliorum  hereditatibus,  vel  pro  eis  rebus  que  justius 
aliis  contingebant.  Et  si  quis  pro  hereditate  sua  aliquid  pepi- 
gerat,  illud  condono,  et  omnes  relevationes  que  pro  rectis 
hereditatibus  pacte  erant. 

7.  Et  si  quis  baronum  vel  hominum  meorum  infirmabitur^ 
sicut  ipse  dabit  vel  dare  disponet  pecuniam  suam,  ita  datam 
esse  concedo.  Quodsi  ipse,  preventus  vel  armis  vel  infirmitate^ 
pecuniam  suam  non  dederit  nee  dare  disposuerit  uxor  sua  sive 
liberi  aut  parentes  aut  legitimi  homines  ejus  eam  pro  anima  ejus 
dividant,  sicut  eis  melius  visum  fuerit. 

8.  Si  quis  baronum  vel  hominum  meorum  forisfecerit,  non 
dabit  vadium  in  misericordia  pecunie  sue,  sicut  faciebat  tempore 
patris  mei  vel  fratris  mei,  sed  secundum  modum  forisfacti,  ita 
emendabit,  sicut  emendasset  retro  a  tempore  patris  mei,  in 
tempore  aliorum  antecessorum  meorum.  Quodsi  perfidie  vel 
sceleris  convictus  fuerit,  sicut  justum  fuerit,  sic  emendet. 

9.  Murdra  etiam  retro  ab  ilia  die  qua  in  regem  coronatus  fui 
omnia  condono ;  et  ea  que  amodo  facta  fuerint  juste  emendentur 
secundum  lagam  regis  Eadwardi. 

10.  Forestas  communi  consensu  baronum  meorum  in  manu 
mea  retinui,  sicut  pater  meus  eas  habuit. 

11.  Militibus  qui  per  loricas  terras  suas  deserviunt  terras 
dominicarum  suarum  quietas  ab  omnibus  geldis  et  ab  omni 
opere,  proprio  dono  meo,  concedo,  ut,  sicut  tam  magno  grava- 


CHARTER  OF  HENRY  I.  4^3 

mine  alleviati  sunt,  ita  equis  et  armis  se  bene  instruant,  ut  apti 
et  parati  sint  ad  servitium  meum  et  ad  defensionem  regni  mei. 

12.  Pacem  firmam  in  toto  regno  meo  pono  et  teneri*  amodo 
precipio. 

13.  Lagam  regis  Eadwardi  vobis  reddo  cum  illis  emendationi- 
bus  quibus  pater  meus  earn  emendavit  consilio  baronum  suorum. 

14.  Si  quis  aliquid  de  meo  vel  de  rebus  alicujus  post  obitum 
regis  Willelmi,  fratis  mei,  cepit,  totum  cito  reddatur  absque 
emendatione.  Et  si  quis  inde  aliquid  retinuerit,  ille  super  quem 
inventum  fuerit  graviter  michi  emendabit. 

Testibus  Mauricio  Lundonie  episcopo,  et  Gundulfo  episcopo, 
et  Willelmo  electo  episcopo,  et  Henrico  comite,  et  Simone 
comite,  et  Waltero  Giffardo,  et  Rodberto  de  Monfort,  et  Rogero 
Bigoto,  et  Henrico  de  Portu,  apud  Westmonasterium,  quando 
coronatus  fui.     Valete  ! 


H.  THE  SECOND  OR  OXFORD  CHARTER  OF  STEPHEN.i 

(1136.) 

Ego  Stephanos  Dei  gratia,  assensu  cleri  et  populi  in  regem 
Anglie  electus,  et  a  Willelmo  Cantuariensi  archiepiscopo  et 
sancte  Romane  ecclesie  legato  consecratus,  et  ab  Innocentio 
sancte  romane  sedis  pontifice  postmodum  confirmatus,  respectu 
et  amore  Dei  sanctam  ecclesiam  liberam  esse  concedo,  et  debitam 
reverentiam  illi  confirmo.  Nichil  me  in  ecclesia  vel  rebus 
ecclesiasticis  simoniace  acturum  vel  permissurum  esse  promitto. 
Ecclesiasticarum  personarum  et  omnium  clericorum  et  rerum 
eorum  justiciam  et  potestatem  et  distributionem  bonorum 
ecclesiasticorum  in  manu  episcoporum  esse  perhibeo  et  con- 
firmo. Dignitates  ecclesiarum  privilegiis  earum  confirmatas  et 
consuetudines  earum  antiquo  tenore  habitas  inviolate  manere 
statuo  et  concedo.  Omnes  ecclesiarum  possessiones  et  tenuras, 
quas  die  ilia  habuerunt  qua  Willelmus  rex  avus  meus  fuit  vivus 
et  mortuus,  sine  omni  calumpniantium  reclamatione,  eis  liberas 
et  absolutas  esse  concedo.     Si  quid  vero  de  habitis  vel  possessis 

^The  text  is  founded  on  that  of  the  StaUites  of  the  Realm,  I.  3,  which  follows 
the  Exeter  version.  Cf.  Bemont,  Chartes,  8-10,  who  discusses  the  various  editions. 
Dr.  R.  L.  Poole  has  noted  the  variants  of  an  original  of  the  Charter  preserved  in 
the  muniment  room  of  Salisbury  Cathedral ;  see  Report  on  Mamiscripts  in  Various 
Collections,  I.  384-5  (Historical  Manuscripts  Commission,  1901).  Two  of  these 
variants  have  been  here  adopted:  (a)  *■'■  regem  Anglie''  for  ^^ regem  Anglortim''' 
and  (p)  '■'■postmodum'''  added  after  ^^ pontifice." 


484  APPENDIX 

ante  mortem  ejusdem  regis  quibus  modo  careat,  ecclesia  deinceps 
repetierit,  indulgentie  et  dispensationi  mee  vel  restituendum 
vel  discutiendum  reserve.  Quecunque  vero  post  mortem  ipsius 
regis  liberalitate  regum  vel  largitione  principum,  oblatione  vel 
comparatione,  vel  qualibet  transmutatione  fidelium  eis  coUata 
sunt,  confirmo.  Pacem  et  justiciam  me  in  omnibus  facturum 
et  pro  posse  meo  conservaturum  eis  promitto. 

Forestas  quas  Willelmus  avus  meus  et  Willelmus  avunculus 
meus  instituerunt  et  habuerunt  mihi  reservo.  Ceteras  omnes 
quas  rex  Henricus  superaddidit,  ecclesiis  et  regno  quietas  reddo 
et  concedo. 

Si  quis  episcopus  vel  abbas  vel  alia  ecclesiastica  persona  ante 
mortem  suam  rationabiliter  sua  distribuerit  vel  distribuenda 
statuerit,  firmum  manere  concedo.  Si  vero  morte  preoccupatus 
fuerit,  pro  salute  anime  ejus,  ecclesie  consilio,  eadem  fiat  distri- 
butio.  Dum  vero  sedes  propriis  pastoribus  vacue  fuerint,  ipsas 
et  earum  possessiones  omnes  in  manu  et  custodia  clericorum 
vel  proborum  hominum  ejusdem  ecclesie  committam,  donee 
pastor  canonice  substituatur. 

Omnes  exactiones  et  injusticias  et  mescheningas  sive  per  vice- 
comites  vel  per  alios  quoslibet  male  inductas  funditus  exstirpo. 
Bonas  leges  et  antiquas  et  justas  consuetudines  in  murdris  et 
placitis  et  aliis  causis  observabo  et  observari  precipio  et  con- 
stituo.  Hec  omnia  concedo  et  confirmo,  salva  regia  et  justa 
dignitate  mea. 

Testibus  Willelmo  Cantuariensi  archiepiscopo,  et  Hugone 
Rothomagensi  archiepiscopo,  et  Henrico  Wintoniensi  episcopo, 
et  Rogero  Saresberiensi  episcopo,  et  Alexandre  Lincolniensi 
episcopo,  et  Nigello  Eliensi  episcopo,  et  Evrardo  Norwicensi 
episcopo,  et  Simone  Wigorniensi  episcopo,  et  Bernardo  episcopo 
de  S.  Davide,  et  Audoeno  Ebroicensi  episcopo,  et  Ricardo 
Abrincensi  episcopo,  et  Roberto  Herefordiensi  episcopo,  et 
Johanne  Rovecestriensi  episcopo,  et  Athelulfo  Carlolensi  epis- 
copo, et  Rogero  cancellario,  et  Henrico  nepote  Regis,  et  Roberto 
comite  Gloecestrie,  et  Willelmo  comite  de  Warenna,  et  Ran- 
nulf o  comite  Cestrie,  et  Rogero  comite  de  Warewic. ,  et  Roberto 
de  Ver.,  et  Milone  de  Gloecestria,  et  Brientio  filio  Comitis,  et 
Roberto  de  Oilly  conestabulis,  et  Willelmo  Martello,  et  Hugone 
Bigot,  et  Hunfredo  de  Buhun,  et  Simone  de  Belcamp  dapiferis, 
et  Willelmo  de  Albiniaco,  et  Eudone  Martello  pincernis,  et 
Roberto  de  Ferreriis,  et  Willelmo  Pevrello  de  Notingeham, 
et  Simone  de  Saintliz,  et  Willelmo  de  Albamarla,   et  Pagano 


CHARTER  OF  STEPHEN  4^5 

filio  Johannis,  et  Hamone  de  Sancto  Claro,  et  Ilberto  de  Laceio. 
Apud  Oxeneford.  Anno  ab  incarnatione  Domini  M.C.  XXXVI., 
set  regni  mei  primo. 


HI.  CHARTER  OF  HENRY  H.i 

(circa  1 154.) 

Henricus  Dei  gracia  rex  anglie,  dux  Normannie  et  Aquitanie, 
et  comes  Andegavie,  omnibus  comitibus,  baronibus  et  fidelibus 
suis  Francis  et  Anglicis,  salutem.  Sciatis  me,  ad  honorem  Dei 
et  sancte  Ecclesie,  et  pro  communi  emendacione  tocius  regni 
mei,  concessisse  et  reddidisse  et  presenti  carta  mea  confirmasse 
Deo  et  sancte  ecclesie  et  omnibus  comitibus  et  baronibus  et 
omnibus  hominibus  meis  omnes  concessiones  et  donaciones  et 
libertates  et  liberas  consuetudines,  quas  rex  Henricus  avus 
meus  eis  dedit  et  concessit.  Similiter  eciam  omnes  malas 
consuetudines,  quas  ipse  delevit  et  remisit,  ego  remitto  et  deleri 
concede  pro  me  et  heredibus  meis.  Quare  volo  et  firmiter 
precipio  quod  sancta  ecclesia  et  omnes  comites  et  barones  et 
omnes  mei  homines  omnes  illas  consuetudines  et  donaciones  et 
libertates  et  liberas  consuetudines  habeant  et  teneant  libere 
et  quiete,  bene  et  in  pace  et  integre,  de  me  et  heredibus 
meis,  sibi  et  heredibus  suis,  adeo  libere  et  quiete  et  plenarie 
in  omnibus,  sicut  rex  Henricus  avus  meus  eis  dedit  et  con- 
cessit, et  carta  sua  confirmavit.  Teste  Ricardo  de  Luci  apud 
Westmonasterium. 


IV.  THE  SO-CALLED  "  UNKNOWN  CHARTER  OF 

LIBERTIES  "  OF  JOHN.2 

(circa  1214-1215.) 

I.  Concedit  Rex  Johannes  quod  non  capiet  hominem  absque 
judicio,  nee  aliquid  accipiet  pro  justitia,  nee  injustitiam  faciet. 

^  The  text  is  taken  from  that  given  in  Stattites  of  the  Realm,  I.  4,  which  is 
founded  on  a  copy  of  the  original  preserved  in  the  British  Museum  (Cotton, 
Claudius  D.  II.,  folio  107).     Cf.  Bemont,  Charies,  12-14. 

2  For  a  discussion  of  the  nature,  date,  and  historical  context  of  this  document  see 
supra,  pp.  171  -5  and  Index.  The  text  is  founded  upon  that  published  by  Mr.  J.  H. 
Round  in  the  English  Historical  Review,  VIII.  288,  but  effect  has  been  given  to 
most  of  the  emendations  suggested  by  Mr.  Hubert  Hall  and  Mr.  G.  W.  Pfothero. 
Cf.  ibid.,  IX.  117  and  326.  The  twelve  clauses  are  here  numbered  for  convenience 
of  reference,  although  no  numbers  appear  in  the  MS. 


486  APPENDIX 

2.  Et  si  contingat  quod  meus  baro  vel  homo  meus  moriatur 
pt  haeres  suus  sit  in  aetate,  terram  suam  debeo  ei  reddere  per 
rectum  releveium  absque  magis  capiendi. 

3.  Et  si  ita  sit  quod  haeres  sit  infra  aetatem,  debeo  inf^ 
militibus  de  legalioribus  feodi  terram  bajulare  in  custodia,  et 
illi  cum  meo  famulo  debent  mihi  reddere  exitus  terrae  sine 
venditione  nemorum  et  sine  redemptione  hominum  et  sine 
destructione  parci  et  vivarii;  et  tunc  quando  ille  haeres  erit 
in  aetate  terram  ei  reddam  quietam. 

4.  Si  foemina  sit  haeres  terrae,  debeo  eam  maritare,  con- 
silio  generis  sui,  ita  non  sit  disparagiata.  Et  si  una  vice  eam 
dedero,  amplius  eam  dare  non  possum,  sed  se  maritabit  ad 
libitum  suum,  sed  non  inimicis  meis. 

5.  Si  contingat  quod  baro  aut  homo  meus  moriatur,  concede 
ut  pecunia  sua  dividatur  sicut  ipse  diviserit;  et  si  prae- 
occupatus  fuerit  aut  armis  aut  infirmitate  improvisa,  uxor 
ejus,  aut  liberi,  aut  parentes  et  amici  propinquiores  pro  ejus 
anima  dividant. 

6.  Et  uxor  ejus  non  abibit  de  hospitio  infra  xl.  dies  et 
donee  dotem  suam  decenter  habuerit,  et  maritagium  habebit. 

7.  Adhuc  hominibus  meis  concedo  ne  eant  in  exercitu  extra 
Angliam  nisi  in  Normanniam  et  in  Britanniam  et  hoc  decenter; 
quod  si  aliquis  debet  inde  servitium  decem  militum,  consilio 
baronum  meorum  alleviabitur. 

8.  Et  si  scutagium  evenerit  in  terra,  una  marca  argenti 
capietur  de  feodi  militis;  et  si  gravamen  exercitus  contigerit, 
amplius  caperetur  consilio  baronum  regni. 

9.  Adhuc  concedo  ut  omnes  forestas  quas  pater  meus  et 
frater  meus  et  ego  afforestaverimus,  deafforesto. 

10.  Adhuc  concedo  ut  milites  qui  in  antiquis  forestis  meis 
suum  nemus  habent,  habeant  nemus  amodo  ad  herbergagia 
sua  et  ad  ardendum ;  et  habeant  foresterium  suum ;  et  ego 
tantum  modo  unum  qui  servet  pecudes  meas. 

11.  Et  si  aliquis  hominum  meorum  moriatur  qui  Judaeis 
debeat,  debitum  non  usurabit  quamdiu  haeres  ejus  sit  infra 
aetatem. 

12.  Et  concedo  ne  homo  perdat  pro  pecude  vitam  neque 
membra. 


THE  ARTICLES  OF  THE  BARONS  487 

V.  THE  ARTICLES  OF  THE  BARONS.i^ 

(1215.) 
Ista  sunt  Capitula  que  Barones  petunt  et  dominus  Rex  concedit. 

1.  Post  decessum  antecessorum  heredes  plene  etatis  habebunt 
hereditatem  suam  per  antiquum  relevium  exprimendum  in  carta. 

2.  Heredes  qui  infra  etatem  sunt  et  fuerint  in  custodia,  cum 
ad  etatem  pervenerint,  habebunt  hereditatem  suam  sine  relevio 
et  fine. 

3.  Custos  terre  heredis  capiet  rationabiles  exitus,  consuetu- 
dines,  et  servitia,  sine  destructione  et  vasto  hominum  et  rerum 
suarum,  et  si  custos  terre  fecerit  destructionem  et  vastum, 
amittat  custodiam  ;  et  custos  sustentabit  domos,  parcos,  vivaria, 
stagna,  molendina  et  cetera  ad  terram  illam  pertinentia,  de 
exitibus  terre  ejusdem ;  et  ut  heredes  ita  maritentur  ne  dispara- 
gentur  et  per  consilium  propinquorum  de  consanguinitate  sua. 

4.  Ne  vidua  det  aHquid  pro  dote  sua,  vel  maritagio,  post  deces- 
sum mariti  sui,  sed  maneat  in  domo  sua  per  .xl.  dies  post  mortem 
ipsius,  et  infra  terminum  ilium  assignetur  ei  dos ;  et  maritagium 
statim  habeat  et  hereditatem  suam. 

5.  Rex  vel  ballivus  non  saisiet  terram  aliquam  pro  debito  dum 
catalla  debitoris  suflficiunt;  nee  plegii  debitoris  distringantur, 
dum  capitalis  debitor  suflRcit  ad  solutionem ;  si  vero  capitalis 
debitor  defecerit  in  solutione,  si  plegii  voluerint,  habeant  terras 
debitoris,  donee  debitum  illud  persolvatur  plene,  nisi  capitalis 
debitor  monstrare  poterit  se  esse  inde  quietum  erga  plegios. 

6.  Rex  non  concedet  alicui  baroni  quod  capiat  auxilium  de 
liberis  hominibus  suis,  nisi  ad  corpus  suum  redimendum,  et  ad 
faciendum  primogenitum  filium  suum  militem,  et  ad  primo- 
genitam  filiam  suam  semel  maritandam,  et  hoc  faciet  per 
rationabile  auxilium. 

7.  Ne  aliquis  majus  servitium  faciat  de  feodo  militis  quam 
inde  debetur. 

8.  Ut  communia  placita  non  sequantur  curiam  domini  regis, 
sed  assignentur  in  aliquo  certo  loco ;  et  ut  recognitiones  capian- 
tur  in  eisdem  comitatibus,  in  hunc  modum  :  ut  rex  mittat  duos 
justiciaros  per  .iiii*^'".  vices  in  anno,  qui  cum  .iiii^''.  militibus 
ejusdem  comitatus  electis  per  comitatum,  capiant  assisas  de  nova 

^  The  text  is  taken  from  that  of  the  Statutes  of  the  Realm,  I.  ^-Z,  which  is 
founded  on  the  original  in  the  British  Museum.  See  stipra,  pp.  1 70- 1.  Cf.  Bemont, 
Chartes,  15-23. 


488  APPENDIX 

dissaisina,    morte    antecessoris,    et    ultima    presentatione,    nee 
aliquis  ob  hoc  sit  summonitus  nisi  juratores  et  due  partes. 

9.  Ut  liber  homo  amercietur  pro  parvo  delicto  secundum 
modum  delicti,  et,  pro  magno  delicto,  secundum  magnitudinem 
delicti,  salvo  continemento  suo ;  villanus  etiam  eodem  modo 
amercietur,  salvo  waynagio  suo;  et  mercator  eodem  modo, 
salva  marcandisa,  per  sacramentum  proborum  hominum  de 
visneto. 

10.  Ut  clericus  amercietur  de  laico  feodo  suo  secundum 
modunj  aliorum  predictorum,  et  non  secundum  beneficium 
ecclesiasticum. 

11.  Ne  aliqua  villa  amercietur  pro  pontibus  faciendis  ad 
riparias,  nisi  ubi  de  jure  antiquitus  esse  solebant. 

12.  Ut  mensura  vini,  bladi,  et  latitudines  pannorum  et  rerum 
aliarum,  emendetur;    et  ita  de  ponderibus. 

13.  Ut  assise  de  nova  dissaisina  et  de  morte  antecessoris 
abbrevientur ;    et  similiter  de  aliis  assisis. 

14.  Ut  nullus  vicecomes  intromittat  se  de  placitis  ad  coronam 
pertinentibus  sine  coronatoribus ;  et  ut  comitatus  et  hundred! 
sint  ad  antiquas  firmas  absque  nullo  incremento,  exceptis 
dominicis  maneriis  regis. 

15.  Si  aliquis  tenens  de  rege  moriatur,  licebit  vicecomiti  vel 
alii  ballivo  regis  seisire  et  imbreviare  catallum  ipsius  per  visum 
legalium  hominum,  ita  tamen  quod  nichil  inde  amoveatur,  donee 
plenius  sciatur  si  debeat  aliquod  liquidum  debitum  domino  regi, 
et  tunc  debitum  regis  persolvatur;  residuum  vero  relinquatur 
executoribus  ad  faciendum  testamentum  defuncti;  et  si  nichil 
regi  debetur,  omnia  catalla  cedant  defuncto. 

16.  Si  aliquis  liber  homo  intestatus  decesserit,  bona  sua  per 
manum  proximorum  parentum  suorum  et  amicorum  et  per  visum 
ecclesie  distribuantur. 

17.  Ne  vidue  distringantur  ad  se  maritandum,  dum  voluerint 
sine  marito  vivere,  ita  tamen  quod  securitatem  facient  quod  non 
maritabunt  se  sine  assensu  regis,  si  de  rege  teneant,  vel  domi- 
norum  suorum  de  quibus  tenent. 

18.  Ne  constabularius  vel  alius  ballivus  capiat  blada  vel  alia 
catalla,  nisi  statim  denarios  inde  reddat,  nisi  respectum  habere 
possit  de  voluntate  venditoris. 

19.  Ne  constabularius  possit  distringere  aliquem  militem  ad 
dandum  denarios  pro  custodia  castri,  si  voluerit  facere  custodiam 
illam  in  propria  persona  vel  per  alium  probum  hominem,  si  ipse 
earn  facere  non  possit  per  rationabilem  causam;    et  si  rex  eum 


THE  ARTICLES   OF  THE  BARONS  489 

duxerit  in  exercitum,  sit  quietus  de  custodia  secundum  quanti- 
tatem  temporis. 

20.  Ne  vicecomes,  vel  ballivus  regis,  vel  aliquis  alius,  capiat 
equos  vel  carettas  alicujus  liberi  hominis  pro  cariagio  faciendo, 
nisi  ex  voluntate  ipsius. 

21.  Ne  rex  vel  ballivus  suus  capiat  alienum  boscum  ad  castra 
vel  ad  alia  agenda  sua,  nisi  per  voluntatem  ipsius  cujus  boscus 
ille  fuerit. 

22.  Ne  rex  teneat  terram  eorum  qui  fuerint  convicti  de 
felonia,  nisi  per  unum  annum  et  unum  diem,  sed  tunc  reddatur 
domino  feodi. 

23.  Ut  omnes  kidelli  de  cetero  penitus  deponantur  de  Tamisia 
et  Medeweye  et  per  totam  Angliam. 

24.  Ne  breve  quod  vocatur  "  Precipe  "  de  cetero  fiat  alicui  de 
aliquo  tenemento  unde  liber  homo  amittat  curiam  suam. 

25.  Si  quis  fuerit  disseisitus  vel  prolongatus  per  regem  sine 
juditio  de  terris,  libertatibus,  et  jure  suo,  statim  ei  restituatur; 
et  si  contentio  super  hoc  orta  fuerit,  tunc  inde  disponatur  per 
juditium  .xxv.  baronum,  et  ut  illi  qui  fuerint  dissaisiti  per 
patrem  vel  fratrem  regis,  rectum  habeant  sine  dilatione  per 
juditium  parium  suorum  in  curia  regis ;  et  si  rex  debeat  habere 
terminum  aliorum  cruce  signatorum,  tunc  archiepiscopus  et 
episcopi  faciant  inde  juditium  ad  certum  diem,  appellatione 
remota. 

26.  Ne  aliquid  detur  pro  brevi  inquisitionis  de  vita  vel 
membris,  sed  libere  concedatur  sine  pretio  et  non  negetur. 

2*^.  Si  aliquis  tenet  de  rege  per  feodi  firmam,  per  sokagium, 
vel  per  burgagium,  et  de  alio  per  servitium  militis,  dominus 
rex  non  habebit  custodiam  militum  de  feodo  alterius,  occasione 
burgagii  vel  sokagii,  nee  debet  habere  custodiam  burgagii, 
sokagii,  vel  feodi  firme ;  et  quod  liber  homo  non  amittat  militiam 
suam  occasione  parvarum  sergantisarum,  sicuti  de  illis  qui 
tenent  aliquod  tenementum  reddendo  inde  cuttellos  vel  sagittas 
vel  hujusmodi. 

28.  Ne  aliquis  ballivus  possit  ponere  aliquem  ad  legem  simplici 
loquela  sua  sine  testibus  fidelibus. 

29.  Ne  corpus  liberi  hominis  capiatur,  nee  imprisonetur,  nee 
dissaisietur,  nee  utlagetur,  nee  exuletur,  nee  aliquo  modo  de- 
struatur,  nee  rex  eat  vel  mittat  super  eum  vi,  nisi  per  juditium 
parium  suorum  vel  per  legem  terre. 

30.  Ne  jus  vendatur  vel  differratur  vel  vetitum  sit. 

31.  Quod  mercatores  habeant  salvum  ire  et  venire  ad  emen- 


490 


APPENDIX 


dum   vel  vendendum,    sine   omnibus  malis  toltis,   per   antiquas 
et  rectas  consuetudines. 

32.  Ne  scutagium  vel  auxilium  ponatur  in  regno,  nisi  per 
commune  consilium  regni,  nisi  ad  corpus  regis  redimendum, 
et  primogenitum  filium  suum  militem  faciendum,  et  filiam  suam 
primogenitam  semel  maritandam ;  et  ad  hoc  fiat  rationabile 
auxilium.  Simili  modo  fiat  de  taillagiis  et  auxiliis  de  civitate 
Londonie,  et  de  aliis  civitatibus  que  inde  habent  libertates,  et  ut 
civitas  Londonie  plene  habeat  antiquas  libertates  et  liberas  con- 
suetucjines  suas,  tam  per  aquas,  quam  per  terras. 

33.  Ut  liceat  unicuique  exire  de  regno  et  redire,  salva  fide 
dominis  regis,  nisi  tempore  werre  per  aliquod  breve  tempus 
propter  communem  utilitatem  regni. 

34.  Si  quis  mutuo  aliquid  acceperit  a  Judeis  plus  vel  minus, 
et  moriatur  antequam  debitum  illud  solvatur,  debitum  non 
usurabit  quamdiu  heres  fuerit  infra  etatem,  de  quocumque 
teneat;  et  si  debitum  illud  inciderit  in  manum  regis,  rex  non 
capiet  nisi  catallum  quod  continetur  in  carta. 

35.  Si  quis  moriatur  et  debitum  debeat  Judeis,  uxor  ejus 
habeat  dotem  suam ;  et  si  Hberi  remanserint,  provideantur  eis 
necessaria  secundum  tenementum ;  et  de  residuo  solvatur  debitum 
salvo  servitio  dominorum  ;  simili  modo  fiat  de  aliis  debitis ;  et  ut 
custos  terre  reddat  heredi,  cum  ad  plenam  etatem  pervenerit, 
terram  suam  instauratam  secundum  quod  rationabiliter  poterit 
sustinere  de  exitibus  terre  ejusdem  de  carucis  et  wainnagiis. 

36.  Si  quis  tenuerit  de  aliqua  eskaeta,  sicut  de  honore  Walinge- 
ford,  Notingeham,  Bononie,  et  Lankastrie,  et  de  aliis  eskaetis 
que  sunt  in  manu  regis  et  sunt  baronie,  et  obierit,  heres  ejus 
non  dabit  aliud  relevium,  vel  faciet  regi  aliud  servitium  quam 
faceret  baroni ;  et  ut  rex  eodem  modo  eam  teneat  quo  baro 
eam  tenuit. 

37.  Ut  fines  qui  facti  sunt  pro  dotibus,  maritagiis,  heredi- 
tatibus,  et  amerciamentis,  injuste  et  contra  legem  terre,  omnino 
condonentur;  vel  fiat  inde  per  juditium,  .xxv.  baronum,  vel  per 
juditium  majoris  partis  eorumdem,  una  cum  archiepiscopo  et 
aliis  quos  secum  vocare  voluerit  ita  quod,  si  aliquis  vel  aliqui  de 
.XXV.  fuerint  in  simili  querela,  amoveantur  et  alii  loco  illorum 
per  residuos  de  .xxv.  substituantur. 

38.  Quod  obsides  et  carte  reddantur,  quae  liberate  fuerunt 
regi  in  securitatem. 

39.  Ut  illi  qui  fuerint  extra  forestam  non  veniant  coram 
justiciariis  de  foresta  per  communes  summonitiones,  nisi  sint  in 


THE  ARTICLES  OF  THE  BARONS  491 

placito  vel  plegii  fuerint;  et  ut  prave  consuetudines  de  forestis 
€t  de  forestariis,  et  warenniis,  et  vicecomitibus,  et  rivariis, 
emendentur  per  .xii.  milites  de  quolibet  comitatu,  qui  debent 
eligi  per  probos  homines  ejusdem  comitatus. 

40.  Ut  rex  amoveat  penitus  de  balliva  parentes  et  totam 
sequelam  Gerardi  de  Atyes,  quod  de  cetero  balliam  non  habeant, 
scilicet  Engelardum,  Andream,  Petrum,  et  Gyonem  de  Cancellis, 
Gyonem  de  Cygony,  Matheum  de  Martiny,  et  fratres  ejus;  et 
Galfridum  nepotem  ejus  et  Philippum  Mark. 

41.  Et  ut  rex  amoveat  alienigenas,  milites,  stipendiaries, 
balistarios,  et  ruttarios,  et  servientes  qui  veniunt  cum  equis  et 
armis  ad  nocumentum  regni. 

42.  Ut  rex  faciat  justiciaries,  constabularies,  vicecomites,  et 
ballivos,  de  talibus  qui  sciant  legem  terre  et  eam  bene  velint 
observare. 

43.  Ut  barones  qui  fundaverunt  abbatias,  unde  habent  cartas 
regum  vel  antiquam  tenuram,  habeant  custodiam  earum  cum 
vacaverint. 

44.  Si  rex  Walenses  dissaisierit  vel  elongaverit  de  terris  vel 
libertatibus,  vel  de  rebus  aliis  in  Anglia  vel  in  Wallia,  eis  statim 
sine  placito  reddantur;  et  si  fuerint  dissaisiti  vel  elongati  de 
tenementis  suis  Anglie  per  patrem  vel  fratrem  regis  sine  juditio 
parium  suorum,  rex  eis  sine  dilatione  justiciam  exhibebit,  eo 
modo  quo  exhibet  Anglicis  justiciam  de  tenementis  suis  Anglie 
secundum  legem  Anglie,  et  de  tenementis  Wallie  secundum 
legem  Wallie,  et  de  tenementis  Marchie  secundum  legem 
Marchie ;   idem  facient  Walenses  regi  et  suis. 


nisi  aliter  esse 
debeat  per  cartas 
quas  rex  habet  per 
*  juditium  archi- 
episcopi  et  alio- 
rum  quos  secum 
vocare  voluerit. 


45.  Ut  rex  reddat  filium  Lewelini  et  pre- 
terea  omnes  obsides  de  Wallia,  et  cartas  que 
ei  liberate  fuerunt  in  securitatem  pacis 

46.  Ut  rex  faciat  regi  Scottorum  de  obsi- 
dibus  reddendis,  et  de  libertatibus  suis,  et 
jure  suo,  secundum  formam  quam  facit 
baronibus  Anglie         ..... 

47.  Et  omnes  foreste  que  sunt  aforestate  per  regem  tempore 
suo  deafforestentur,  et  ita  fiat  de  ripariis  que  per  ipsum  regem 
sunt  in  defense. 

48.  Omnes  autem  istas  consuetudines  et  libertates  quas  rex 
concessit  regno  tenendas  quantum  ad  se  pertinet  erga  sues, 
omnes  de  regno  tarn  clerici  quam  laici  observabunt  quantum  ad 
se  pertinet  erga  sues. 

[Here,  there  occurs  a  blank  space  in  the  original.] 


492 


APPENDIX 


49.  Hec  est  forma  securitatis  ad  observandum  pacem  et  liber- 
tates  inter  regem  et  regnum.  Barones  eligent  .xxv.  barones  de 
regno  quos  voluerint,  qui  debent  pro  totis  viribus  suis  observare, 
tenere  et  facere  observari,  pacem  et  libertates  quas  dominus  rex 
eis  concessit  et  carta  sua  confirmavit ;  ita  videlicet  quod  si  rex, 
vel  justiciarius,  vel  ballivi  regis,  vel  aliquis  de  ministris  suis,  in 
aliquo  erga  aliquem  deliquerit,  vel  aliquem  articulorum  pacis  aut 
securitatis  transgressus  fuerit,  et  delictum  ostensum  fuerit  .iiiio"". 
baronibus  de  praedictis  .xxv.  baronibus,  illi  .iiii^''.  barones  acce- 
dent  ad  dominum  regem,  vel  ad  justiciarium  suum,  si  rex  fuerit 
extra  regnum;  proponentes  ei  excessum,  petent  ut  excessum 
ilium  sine  dilatione  faciat  emendari ;  et  si  rex  vel  justiciarius 
ejus  illud  non  emendaverit,  si  rex  fuerit  extra  regnum,  infra 
rationabile  tempus  determinandum  in  carta,  predicti  .iiii*^^.  re- 
ferent causam  illam  ad  residuos  de  illis  .xxv.  baronibus,  et  illi 
,xxv.  cum  communa  totius  terre  distringent  et  gravabunt  regem 
modis  omnibus  quibus  poterunt,  scilicet  per  captionem  castrorum, 
terrarum,  possessionum,  et  aliis  modis  quibus  poterunt,  donee 
fuerit  emendatum  secundum  arbitrium  eorum,  salva  persona 
domini  regis  et  regine  et  liberorum  suorum ;  et  cum  fuerit  emen- 
datum, intendant  domino  regi  sicut  prius.  Et  quicumque 
voluerit  de  terra  jurabit  se  ad  predicta  exequenda  pariturum  man- 
datis  predictorum  .xxv.  baronum,  etgravaturum  regem  pro  posse 
suo  cum  ipsis ;  et  rex  pubblice  et  libere  dabit  licentiam  jurandi 
cuilibet  qui  jurare  voluerit,  et  nuUi  umquam  jurare  prohibebit. 
Omnes  autem  illos  de  terra  qui  sponte  sua  et  per  se  noluerint 
jurare  .xxv.  baronibus  de  distringendo  et  gravando  regem  cum 
eis,  rex  faciet  jurare  eosdem  de  mandato  suo  sicut  predictum 
est.  Item  si  aliquis  de  predictis  .xxv.  baronibus  decesserit,  vel  a 
terra  recesserit,  vel  aliquo  modo  alio  impeditus  fuerit  quominus 
ista  predicta  possint  exequi,  qui  residui  fuerint  de  .xxv.  eligent 
alium  loco  ipsius  pro  arbitrio  suo,  qui  simili  modo  erit  juratus 
quo  et  ceteri.  In  omnibus  autem  que  istis  .xxv.  baronibus  com- 
mittuntur  exequenda,-  si  forte  ipsi  .xxv.  presentes  fuerint  et  inter 
se  super  re  aliqua  discordaverint,  vel  aliqui  ex  eis  vocati  nolint 
vel  nequeant  interesse,  ratum  habebitur  et  firmum  quod  major 
pars  ex  eis  providerit  vel  preceperit,  ac  si  omnes  .xxv.  in  hoc 
consensissent ;  et  predicti  .xxv.  jurabunt  quod  omnia  antedicta 
fideliter  observabunt  et  pro  toto  posse  suo  facient  observari. 
Preterea  rex  faciet  eos  securos  per  cartas  archiepiscopi  et  epis- 
coporum  et  magistri  Pandulfi,  quod  nichil  impetrabit  a  domino 
papa    per    quod    aliqua    istarum    conventionum    revocetur    vel 


THE  ARTICLES  OF  THE  BARONS  493 

minuatur,  et,   si  aliquid  tale  impetraverit,  reputetur  irritum  et 
inane  et  numquam  eo  utatur. 


VI.  WRITS   SUPPLEMENTARY  OF  JOHN'S  GREAT 
CHARTER. 

(i)   Writ  to  Stephen  Harengod,  dated  23rd  June,  12 15,  announc- 
ing that  terms  had  been  arranged.'^ 

Rex  Stephano  Harengod  etc.,  Sciatis  quod  firma  pax  facta 
est  per  Dei  gratiam  inter  nos  et  barones  nostros  die  Veneris 
proximo  post  festum  Sancte  Trinitatis  apud  Runemed. ,  prope 
Stanes;  ita  quod  eorum  homagia  eodem  die  ibidem  cepimus. 
Unde  vobis  mandamus  firmiter  precipientes  quod  sicut  nos  et 
honorem  nostrum  diligitis  et  pacem  regni  nostri,  ne  ulterius 
turbetur,  quod  nullum  malum  de  cetero  faciatis  baronibus 
nostris  vel  aliis,  vel  fieri  permittatis,  occasione  discordie  prius 
orte  inter  nos  et  eos.  Mandamus  etiam  vobis  quod  de  finibus  et 
tenseriis  nobis  factis  occasione  illius  discordie,  si  quid  superest 
reddendum,  nichil  capiatis.  Et  si  quid  post  ilium  diem 
Veneris  cepistis,  illud  statim  reddatis.  Et  corpora  prisonum 
et  obsidum  captorum  et  detentorum  occasione  hujus  guerre,  vel 
finium  vel  tenseriarum  predictarum,  sine  dilatione  deliberetis. 
Hec  omnia  predicta,  sicut  corpus  vestrum  diligitis,  faciatis. 
Et  in  hujus  etc.,  nobis  mittimus.  Teste  meipso  apud  Runemed., 
xxiij.  die  Junii  anno  regni  nostri  xvij. 

(2)   Writ  to  Hugh  de  Bova,  dated  2yd  June,  12 15,  ordering  dis- 
handment  of  mercenaries.^ 

Rex  Hugoni  de  Bova,  salutem.  Mandamus  vobis  quod  in 
fide  qua  nobis  tenemini  non  retineatis  aliquem  de  militibus 
vel  servientibus  qui  fuerunt  apud  Dover.,  sed  in  patriam 
suam  in  pace  sine  dilatione  ire  faciatis.  Et  in  hujus,  etc. 
Teste  meipso  apud  Runimed.  xxiij.  die  Junii  anno  regni  nostri 
xvijmo. 

*The  text  follows  that  of  New  Kyiiier^  I.  133,  but  has  been  collated  with  Rot. 
Pat.^  I.  143  (17  John,  m.  23)  and  two  corrections  made.  This  writ  is  referred  to 
stipra^  p.  41  n.,  where  its  date  is  discussed. 

*See  supra^  p.  42.  The  text  is  given  in  New  Ryuner,  I.  134,  and  in  Rot.  Pat.^ 
I.  144(17  John,  m.  23). 


494  APPENDIX 

(3)  Writs  issued  to  the  sheriffs  of  counties  on  igth  June,  1215.1 
Rex  vicecomiti,  forestariis,  warennariis,  custodibus  ripari- 
arum  et  omnibus  baillivis  suis  in  eodem  comitatu,  salutem. 
Sciatis  pacem  firmam  esse  reformatam  per  Dei  gratiam 
inter  nos  et  barones  et  liberos  homines  regni  nostri,  sicut 
audire  poteritis  et  videre  per  cartam  nostram  quam  inde 
fieri  fecimus,  quam  etiam  legi  publice  precepimus  per  totam 
bailliam  vestram  et  firmiter  teneri ;  volentes  et  districte  pre- 
cipientes  quod  tu  vicecomes  omnes  de  baillia  tua  secundum 
formam  carte  predicte  jurare  facias  xxv.  baronibus  de  quibus 
mentio  fit  in  carta  predicta,  ad  mandatum  eorundem  vel  majoris 
partis  eorum,  coram  ipsis  vel  illis  quos  ad  hoc  atornaverint 
per  litteras  suas  patentes,  et  ad  diem  et  locum  quos  ad  hoc 
faciendum  prefixerint  predicti  barones  vel  atornati  ab  eis  ad 
hoc.  Volumus  etiam  et  precipimus  quod  xii  milites  de  comitatu 
tuo,  qui  eligentur  de  ipso  comitatu  in  primo  comitatu  qui  tenebi- 
tur  post  susceptionem  litterarum  istarum  in  partibus  tuis,  jurent 
de  inquirendis  pravis  consuetudinibus  tam  de  vicecomitibus  quam 
eorum  ministris,  forestis,  forestariis,  warennis  et  warennariis, 
ripariis  et  earum  custodibus,  et  eis  delendis,  sicut  in  ipsa 
carta  continetur.  Vos  igitur  omnes  sicut  nos  et  honorem 
nostrum  diligitis,  et  pacem  regni  nostri,  omnia  in  carta 
contenta  inviolabiliter  observetis  et  ab  omnibus  observari 
faciatis,  ne  pro  defectu  vestri,  aut  per  excessum  vestrum, 
pacem  regni  nostri,  quod  Deus  avertat,  iterum  turbari  contin- 
gat.  Et  tu,  vicecomes,  pacem  nostram  per  totam  bailliam 
tuam  clamari  facias  et  firmiter  teneri  precipias.  Et  in  hujus, 
etc.  vobis  mittimus.  Teste  me  ipso  apud  Runimede,  xix.  die 
Junii,  anno  regni  nostri  xvij™°- 

(4)  Writs  issued  to  the  sheriffs  of  counties  on  2'jth  June,  12 15.2 
Rex  vicecomiti  Warewic.  et  duodecim  militibus  electis  in 
eodem  comitatu  ad  inquirendum  et  delendum  pravas  con- 
suetudines  de  vicecomitibus  et  eorum  ministris  forestis  et 
forestariis  warennis  et  warennariis  ripariis  et  earum  custodibus 
salutem.     Mandamus  vobis  quod  statim  et  sine  dilatione  sais- 

^See  sup-a,  p.  42.  The  text  is  given  by  New  Rymer,  I.  134,  and  in  Rot. 
Pat.,  I.  134  (17  John,  m.  21).  A  French  version  appears  in  D'Achery,  Spicilegium, 
XII.  573,  and  in  Bemont,  Chartes,  XXIV.  n. 

"See  stcpra,  pp.  42-3,  and  440.  The  text  is  taken  from  Rot.  Pat.,  I.  180 
(17  John,  m.  23  d.).  It  will  be  found  also  in  New  Rymer,  I.  134,  and  in  Stubbs' 
Sel.  Chart.,  306-7. 


SUPPLEMENTARY  WRITS  495 

iatis  in  manum  nostram  terras  et  tenementa  et  catalla  omnium 
illorum  de  comitatu  Warewic.  qui  jurare  contradixerint  viginti 
quinque  baronibus  secundum  formam  contentam  in  carta  nostra 
de  libertatibus  vel  eis  quos  ad  hoc  atornaverint.  Et  si  jurare 
noluerint  statim  post  quindecim  dies  completos  preterquam 
terre  et  tenementa  et  catalla  eorum  in  manu  nostra  saisita 
fuerint,  omnia  catalla  sua  vendi  faciatis  et  denarios  inde  pre- 
ceptos  salvo  custodiatis,  deputandos  subsidio  terre  sancte. 
Terras  autem  et  tenementa  eorum  in  manu  nostra  teneatis, 
quousque  juraverint.  Et  hoc  provisum  est  per  judicium 
domini  Cantuar.  archiepiscopi  et  baronum  regni  nostri.  Et  in 
hujus  etc.  Teste  meipso,  apud  Winton.  xxvij  die  Junii  anno 
regni  nostri  xvij™°- 

Idem  mandatum  est  omnibus  vicecomitibus  Anglic. 

(5)  Conventio  facta  inter  Re  gem  Anglic  et  bar  ones  ejusdcm 
regni.  ^ 
Hec  est  conventio  facta  inter  dominum  Johannem  regem 
Anglie,  ex  una  parte,  et  Robertum  filium  Walteri,  marescallum 
exercitus  Dei  et  sancte  ecclesie  in  Anglia.  et  Ricardum  comitem 
de  Clare,  Gaufridum  comitem  Essex,  et  Glouc,  Rogerum 
Bigot  comitem  Northfolc.  et  Suthfolc,  Saherum  comitem 
Wint.,  Robertum  comitem  Oxon.,  Henricum  comitem  Here- 
ford., et  barones  subscriptos,  scilicet  Willielmum  Mariscallum 
juniorcm,  Eustachium  de  Vescy,  Willielmum  de  Mobray,  Johan- 
nem filium  Roberti,  Rogerum  de  Monte  Begonis,  Willielmum 
de  Lanvalay,  et  alios  comites  et  barones  et  liberos  homines  totius 
regni,  ex  altera  parte,  videlicet  quod  ipsi  comites  et  barones  et 
alii  prescripti  tenebunt  civitatem  London,  de  baillio  domini  regis, 
salvis  interim  domino  regi  firmis  redditibus  et  claris  debitis  suis, 
usque  ad  assumptionem  beate  Marie  anno  regni  ipsius  regis 
xvii^o.  gt  dominus  Cant,  tenebit  similiter  de  baillio  domini  regis 
turrim  London,  usque  ad  predictum  terminum,  salvis  civitati 
London,  libertatibus  suis  et  liberis  consuetudinibus  suis,  et  salvo 
cuilibet  jure  suo  in  custodia  turris  London.,  et  ita  quod  interim 
non  ponat  dominus  rex  munitionem  vel  vires  alias  in  civitate 
predicta  vel  in  turri  London.  Fiant  etiam  infra  predictum  ter- 
minum sacramenta  per  totam  Angliam  viginti  quinque  baronibus 
sicut  continentur  in  carta  de  libertatibus  et  securitate  regno  con- 

^See  supra,  pp.  43,  and  477.  The  text  is  taken  from  New  Rymer^  I.  133,  on 
the  authority  of  Rot.  Claus.y  17  John,  m.  27  d.  It  is  printed  by  Blackstone, 
Great  Charter,  25-6. 


496  APPENDIX 

cessis  vel  attornatis  viginti  quinque  baronum  sicut  continentur 
in  literis  de  duodecim  militibus  eligendis  ad  delendum  malas 
consuetudines  de  forestis  et  aliis.  Et  preterea  infra  eundem 
terminum  omnia  que  comites  et  barones  et  alii  liberi  homines 
petunt  a  domino  rege  que  ipse  dixerit  esse  reddenda  vel  que 
per  XXV  barones  aut  per  majorem  partem  eorum  judicata 
fuerint  esse  reddenda  reddantur  secundum  formam  predicte 
carte.  Et  si  hec  facta  fuerint  vel  per  dominum  regem  non 
steterit  quo  minus  ista  facta  fuerint  infra  predictum  terminum 
tunc  civitas  et  turris  London,  ad  eundem  terminum  statim 
reddantur  domino  regi  salvis  predicte  civitati  libertatibus  suis 
et  liberis  consuetudinibus  suis  sicut  prescriptum  est.  Et  si 
hec  facta  non  fuerint  et  per  dominum  regem  steterit  quod  ista 
non  fiant  infra  predictum  terminum  barones  tenebunt  civitatem 
predictam  et  dominus  archiepiscopus  turrim  London,  donee 
predicta  compleantur.  Et  interim  omnes  ex  utraque  parte 
recuperabunt  castra  terras  et  villas  quas  habuerunt  in  initio 
guerre  orte  inter  dominum  regem  et  barones. 

(6)  Protest  by  archbishops  of  Canterbury  and  Dublin,  and  other 
prelates,  that  chapter  48  of  the  Great  Charter  <was  to  be 
interpreted  by  both  sides  as  limited.'^ 
Omnibus  Christi  fidelibus  ad  quos  presentes  littere  per- 
venerint,  Stephanus,  Dei  gracia  Cantuar.  archiepiscopus,  tocius 
Anglie  primas  et  sancte  Komane  ecclesie  cardinalis  et  H.  eadem 
gracia,  archiepiscopus  Dublin.,  W.  quoque  London.,  P.  Winton., 
J.  Bathon  et  Glaston.,  H.  Lincoln.,  W.  Wygorn.,  et  W.  Coventr., 
ejusdem  gracie  dono  episcopi,  salutem  in  Domino.  Cum 
dominus  Rex  concesserit  et  per  cartam  suam  confirmaverit,  quod 
omnes  male  consuetudines  de  forestis,  et  forestariis  et  eorum 
ministris,  statim  inquirantur  in  quolibet  comitatu,  per  duodecim 
milites  juratos  de  eodem  comitatu ;  qui  debent  eligi  per 
probos  homines  ejusdem  comitatus;  et  infra  xl.  dies  post 
inquisitionem  factam  penitus,  ita  quod  nunquam  revocentur, 
deleantur  per  eosdem ;  dum  tamen  dominus  Rex  hoc  prius 
sciat;  universitati  vestre  notum  fieri  volumus,  quod  articulus 
iste  ita  intellectus  fuit  ex  utraque  parte,  quum  de  eo  tractabatur, 
et  expressus,  quod  omnes  consuetudines  ille  remanere  debent, 
sine  quibus  foreste  servari  non  possint :  et  hoc  presentibus 
litteris  protestamur. 

*See  supra^  pp.  43,  and  440.     The  protest  is  recorded  in  KoL  Claus.y  17  John 
m.  27  d.,  and  is  printed  in  New  Rymer^  I.  134. 


SUPPLEMENTARY  WRITS  497 

(7)  Protest  by  the  arclibishops  and  other  prelates  that  the  barons 
repudiated  their  promise  to  ratify  their  oaths  by  .formal 
charters  A 

Omnibus  Christi  fidelibus  etc.  Stephanus,  Dei  gracia  Cantuar. 

archiepiscopus,  totius  Anglie  primas  et  sancte  Romane  ecclesie 

cardinalis,  Henricus  Dublin,  archiepiscopus,  Willielmus  London., 

Petrus  Winton.,  Joscelinus  Bathon.  et  Glaston.,  Hugo  Lincoln., 

Walterus    Wigorn.,    Willielmus    Coventr.,    Ricardus    Cicestr., 

episcopi   et   magister   Pandulfus   domini    Pape    subdiaconus   et 

familiaris,   salutem.     Noverit  universitas  vestra,   quod  quando 

facta  fuit  pax  inter  dominum  regem  Johannem  et  barones  Anglie, 

de  discordia  inter  eos  orta,  idem  barones,  nobis  presentibus  et 

audientibus,  promiserunt  domino  Regi,  quod  quamcumque  securi- 

tatem   habere   vellet   ab    eis   de   pace   ilia    observanda,    ipsi   ei 

habere  facerent,  preter  castella  et  obsides.     Postea  vero  quando 

dominus  Rex  petiit  ab  eis,  ut  talem  cartam  ei  facerent : — 

"  Omnibus  etc.     Sciatis  nos  astrictos  esse  per  sacramenta  et 

homagia  domino  nostro  Johanni  Regi  Anglie,  de  fide  ei 

servanda  de  vita  et  membris  et  terreno  honore  suo,  contra 

omnes  homines  qui  vivere  possint  et  mori ;    et  ad  jura 

sua  et  heredum  suorum,  et  ad  regnum  suum  custodien- 

dum  et  defendendum." 

Ipsi  id  facere  noluerunt.     Et  in  hujus  rei  testimonium  id  ipsum 

per  hoc  scriptum  protestamur. 


VIL  THE  GREAT  CHARTER  OF  HENRY  UL^ 

(third  reissue,    IITH  FEBRUARY,    I225.) 

Henricus  Dei  gratia  rex  Anglie,  dominus  Hibernie,  dux  Nor- 
mannie,   Aquitanie,   et  comes   Andegavie,    archiepiscopis,    epis- 

^  See  sitpra,  p.  43.  The  protest  is  printed  in  AW.  Faf.,  I.  144  (17  m.  21  d.),  and 
also  in  New  Rymer^  I.  134. 

-  This  is  the  definitive  form  of  the  Great  Charter,  as  confirmed  by  Edward  I.  in 
1297  and  many  times  thereafter.  See  supra^  p.  154.  The  text  is  taken  from 
Stahites  of  the  Realm,  I.  22-25.  Words  not  found  in  the  Charter  of  1215  are  here 
printed  in  itahcs.  The  footnotes  (in  preparing  which  frequent  reference  has  been 
made  to  Bemont's  Chartes)  give  the  principal  variants  occurring  in  the  Charters  of 
121 5,  1 216,  and  1217,  as  compared  with  that  of  1225.  The  numbers  commonly 
used  (and  here  adopted)  for  the  chapters  of  the  issue  of  1225  do  not  agree  with 
those  used  for  similar  chapters  of  the  issue  of  1217.  The  numbers  in  brackets  are 
those  of  corresponding  chapters  of  1215. 

2  I 


498  APPENDIX 

copis,  abbatibus,  prioribus,  comitibus,  baronibus,!  vicecomltibus^ 
prepositis,  minlstris  et  omnibus  ballivis  et  fidelibus  suis  presen- 
tern  cartam  inspecturis,  salutem.  Sciatis  2  quod  nos,  intuitu 
Dei  et  pro  salute  anime  nostre  et  animarum  antecessorum  et 
successorum  nostrorum,  ad  exaltationem  sancte  ecclesie  et 
emendationem  regni  nostri,  spontanea  et  bona  voluntate  nostra, 
dedimus  et  concessimus  archiepis copis,  episcopis,  abbatibus, 
prioribus,  comitibus,  baronibus  et  omiiibus  de  regno  nostro  has 
libertates  subscriptas  tenendas  in  regno  nostro  Anglie  in  per- 
petuum. 

I  (i).  In  primis  concessimus  ^  Deo  et  hac  present!  carta  nostra 
confirmavimus  ^  pro  nobis  et  heredibus  nostris  in  perpetuum  quod 
anglicana  ecclesia  libera  sit,  et  habeat  omnia  ^  jura  sua  Integra 

"^Justiciariis^forestaHis  follow  baronibus  in  the  issues  of  12 1 5  and  1216,  both  of 
which  om\t  pHoribus. 

2 The  sentence  following  "  sciatis''''  differs  in  each  preamble.  For  that  of  1215, 
see  supra^  pp.  185-6. 

The  Charter  of  12 16  reads  :  Sciatis  nos,  intuitu  Dei  et  pro  salute  anime  nostre 
et  omnium  antecessorum  et  successorum  nostrorum,  ad  honorem  Dei  et  exalta- 
tionem sancte  ecclesie  et  emendationem  regni  nostri,  per  consilium  venerabilium 
patrum  nostrorum  domini  Gualonis  titulo  sancti  Martini  presbiteri  cardinalis, 
apostolici  sedis  legati,  Petri  Wintoniensis,  Reineri  de  Sancto  Asapho,  Jocelini 
Batthoniensis  et  Glastoniensis,  Simonis  Exoniensis,  Ricardi  Cicestriensis,  Willelmi 
Coventriensis,  Benedicti  Roffensis,  Henrici  Landavensis,  Menevensis,  Bangorensis 
et  Sylvestri  Wygorniensis  episcoporum,  et  nobilium  virorum  Willelmi  Mariscalli, 
comitis  Penbrocie,  Ranulfi  comitis  Cestrie,  Willelmi  de  Ferrariis  comitis  Derebie, 
Willelmi  comitis  Albemarle,  Huberti  de  Burgo  justiciarii  nostri,  Savarici  de 
Maloleone,  Willelmi  Brigwerre  patris,  Willelmi  Brigwerre  filii,  Roberti  de 
Crutenay,  Falkesii  de  Breaute,  Reginaldi  de  Vautort,  Walteri  de  Lascy,  Hugonis 
de  Mortuomari,  Johannis  de  Monemute,  Walteri  de  Bellocampo,  Walteri  de 
Clifford,  Roberti  de  Mortuomari,  Willelmi  de  Cantilupo,  Mathei  filii  Hereberti, 
Johannis  Mariscalli,  Alani  Bassett,  Philippi  de  Albiniaco,  Johannis  Extranei  et 
aliorum  fidelium  nostrorum  :  (i)  Imprimis  concessisse  Deo  et  hac  presenti  carta 
confirmasse  .... 

The  Charter  of  1217  reads:  Sciatis  quod,  intuitu  Dei  et  pro  salute  anime 
nostre  et  animarum  antecessorum  et  successorum  nostrorum,  ad  exaltationem 
sancte  ecclesie  et  emendationem  regni  nostri,  concessimus  et  hac  presenti  carta 
confirmavimus  pro  nobis  et  heredibus  nostris  in  perpetuum,  de  consilio  venerabilis 
patris  nostri  domini  Gualonis  titulo  Sancti  Martini  presbiteri  cardinalis  et  apostolice 
sedis  legati,  domini  Walteri  Eboracensis  archiepiscopi,  Willelmi  Londoniensis 
episcopi  et  aliorum  episcoporum  Anglie,  et  Willelmi  Mariscalli  comitis  Pembrocie, 
rectoris  nostri  et  regni  nostri,  et  aliorum  fidelium,  comitum  et  baronum  nostrorum 
Anglie,  has  libertates  subscriptas  tenendas  in  regno  nostro  Anglie  in  perpetuum. 

'  Concessisse^  in  1215  and  1216.  ^  Cojifir?nasse,  in  12 15  and  1 216. 

^  Omnia t  omitted  also  in  121 5  and  1217. 


THE  GREAT  CHARTER  OF  HENRY.  HI.         499 

et  libertates  suas  illesas.^  Concessimus  etiam  omnibus  liberis 
hominibus  regni  nostri  pro  nobis  et  heredibus  nostris'  in  per- 
petuum  omnes  libertates  subscriptas,  habendas  et  tenendas  eis  et 
heredibus  suis  de  nobis  et  heredibus  nostris  in  perpetuum.^ 

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

3  (3).  Si  autem  heres  alicujus  talium  fuerit  infra  etatem,^ 
dominus  ejus  non  habeat  custodiam  ejus  nee  terre  sue  antequam 
homagiuni  ejus  ceperit;  et,  postquam  talis  heres  fuerit  in  cus- 
todia,  cum  ad  etatem  pervenerit,  scilicet  viginti  et  unius  anni, 
habeat  hereditatem  suam  sine  relevio  et  sine  fine,  ita  tamen  quod, 
si  ipse,  dum  infra  etatem  fuerit,  fiat  miles,  nichilominus  terra 
remaneat  in  custodia  dominorum  suorum  usque  ad  terminum 
predictum. 

4  (4).  Gustos  terre  hujusmodi  heredis  qui  infra  etatem  fuerit 
non  capiat  de  terra  heredis  nisi  rationabiles  exitus  et  rationabiles 
consuetudines  et  rationabilia  servicia,  et  hoc  sine  destructione  et 
vasto  hominum  vel  rerum ;  et  si  nos  commiserimus  custodiam 
alicujus  talis  terre  vicecomiti  vel  alicui  alii  qui  de  exitibus  terre 
illius  nobis  debeat  respondere,  et  ille  destructionem  de  custodia 
fecerit  vel  vastum,  nos  ab  illo  capiemus  emendam,  et  terra  com- 
mittetur^  duobus  legalibus  et  discretis  hominibus  de  feodo  illo 
qui  de  exitibus  nobis  respondeant  vel  ei  cui  eos  assignaverimus ; 
et  si  dederimus  vel  vendiderimus  alicui  custodiam  alicujus  talis 
terre,  et  ille  destructionem  inde  fecerit  vel  vastum,  amittat  ipsam 

^For  the  important  clause  occurring  in  I2l$hetweem7/esas  and  Concessimus, 
see  sttpruy  p.  190. 

"^  In perpetuum,  omitted  also  in  1216  and  121 7.  ^  Suits,  in  121 5. 

*The  Inspeximus  of  1297  reads  *^ marcas'"  in  place  of  "libras."  See  supra, 
p.  201.  Cf.  Bracton,  II.  c.  36,  and  other  authorities  cited  by  Bemont,  Chartes, 
47  n. 

^  Et  connects  etatem  and  fuerit  in  custodia  in  12 15,  the  intervening  words  being 
omitted. 

^  Committatur,  in  1215,  12 16  and  121 7. 


500  APPENDIX 

custodiam  et  tradatur  duobus  legalibus  et  discretis  hominibus  de 
feodo  illo  qui  similiter  nobis  respondeant,   sicut  predictum  est. 

5  (5).  Custos  autem,  quamdiu  custodiam  terre  habuerit,  sus- 
tentet  domos,  parcos,  vivaria,  stagna,  molendina  et  cetera  ad 
terram  illam  pertinencia  de  exitibus  terre  ejusdem,  et  reddat 
heredi,  cum  ad  plenam  etatem  pervenerit,  terram  suam  totam 
instauratam  de  carucis^  et  omnibus  aliis  rebus,  ad  minus  secun- 
dum, quod  illatn  recepit.  Hec  omnia  observentur  de  custodiis 
archiepiscopatuum,  episcopatuum,  abbatiarum,  prioratuum, 
ecclesiarum  et  dignitatum  vacancium  que  ad  nos  pertinent, 
excepto  quod  hujusmodi  custodie  vendi  non  debent. 

6  (6).   Heredes  maritentur  absque  disparagatione.2 

7  (7).  Vidua  post  mortem  mariti  sui  statim  et  sine  difficultate 
aliqua  habeat  maritagium  suum  et  hereditatem  suam,  nee  aliquid 
det  pro  dote  sua  vel  pro  maritagio  suo  vel  pro  hereditate  sua, 
quam  hereditatum  maritus  suus  et  ipsa  tenuerunt^  die  obitus 
ipsius  mariti,  et  maneat  in  capitali  mesagio  mariti  sui  ^  per  quad- 
raginta  dies  post  obitum  ipsius  mariti  sui,  infra  quos  assignetur 
ei  dos  sua,  nisi  prius  ei  fuerit  assignata,  vel  nisi  domus  ilia  sit 
castrum;  et  si  de  castro  recesserit,  statim  provideatur  ei  domus 
competens  in  qua  possit  honeste  morari,  quousque  dos  sua  ei 
assignetur  secundum  quod  predictum  est,^  et  habeat  rationabile 
estoverium  suum  interim  de  communi.  Assignetur  autem  ei  pro 
dote  sua  tercia  pars  tocius  terre  mariti  sui  que  sua  fuit  in  vita 
sua,  nisi  de  minori  dotata  fuerit  ad  hostium  ecclesie. 

(8).  Nulla  vidua  distringatur  ad  se  maritandam,^  dum  vivere 
voluerit  sine  marito,  ita  tamen  quod  securitatem  faciet  quod  se 
non  maritabit  sine  assensu  nostro,  si  de  nobis  tenuerit,  vel  sine 
assensu  domini  sui,^  si  de  alio  tenuerit. 

8  (9).  Nos  vero  vel  ballivi^  nostri  non  seisiemus  terram  ali- 
quam  nee  redditum  pro  debito  aliquo  quamdiu  catalla  debitoris 
presencia  sufficiant  ^  ad  debitum  reddendum  et  ipse  debitor  para- 

^  Different  ending  in  121 5  ;  see  supi'a,  p.  210. 

^  An  additional  clause  occurs  in  1215  ;  see  supra,  p.  212. 

^  Tenuerint,  in  1 2 16  and  1 21 7. 

^  In  domo  mariti  sui,  in  1215  and  12 16;  in  capitali  viesicagio  mariti  sui,  in 
1217. 

^The  words  et  habeat  to  ad  hostium  ecclesie  are  omitted  also  in  12 16. 

^Maritandum,  in  1216 ;  a  contraction  occurs  in  1217,  which  may  stand  for 
either  termination. 

"^  De  quo  tenuerit,  in  1 2 15.  ^  Nee  nos  ncc  ballivi,  in  1215. 

^  Sufficitmt,  in  12 1 5,  1216  and  1217. 


THE   GREAT  CHARTER  OF  HENRY   HI.         501 

tus  sit  inde  satisfacere  ;  nee  plegii  ipsius  debitoris  distringantur 
quamdiu  ipse  capitalis  debitor  sufficiat  1  ad  solutionem  debiti ;  et, 
si  capitalis  debitor  defecerit  in  solutione  debiti,  non  habens  unde 
reddat  aut  reddere  nolit  cum  possit,  plegii  respondeant  pro  2 
debito;  et,  si  voluerint,  habeant  terras  et  redditus  debitoris 
quousque  ^  sit  eis  satisf actum  de  debito  quod  ante  pro  eo  solve- 
runt,^  nisi  capitalis  debitor  monstraverit  se  inde  esse  quietum 
versus  eosdem  plegios. 

95  (13).  Civitas^  Londonie  habeat  omnes  antiquas  libertates 
et  liberas  consuetudines  suas."^  Preterea  volumus  et  concedi- 
mus  quod  omnes  alie  civitates,  et  burgi,  et  ville,  et  barones  de 
quinque  portubus,  et  omnes  portus,  habeant  omnes  libertates 
et  liberas  consuetudines  suas. 

iqS  (16).  Nullus  distringatur  ad  faciendum  majus  servicium 
de  feodo  militis  nee  de  alio  libero  tenemento  quam  inde  debetur. 

11  (17).  Communia  placita  non  sequantur  curiam  nostram,  set 
teneantur  in  aliquo  loco  certo. 

12  (18).  Recognitiones  de  nova  disseisina  et  de  morte  ante- 
cessoris  ^  non  capiantur  nisi  in  suis  comitatibus,  et  hoe  modo  : 
nos,  vel  si  extra  regnum  fuerimus,  capitalis  justieiarius  noster, 
mittemus^o  justiciarios  per  unumquemque  comitatum  semel  in 
anno,^'^  qui  cum  militibus  comitatuum  capiant  in  comitatibus 
assisas  predictas.  Et  ea  que  in  Ulo  adventu  suo  in  comitatu  per 
justiciarios  predictos  ad  dictas  assisas  capiendas  missos  terminari 
non  possunt,  per  eosdem.  terminentur  alibi  in  itinere  suo;  et  ea 
que  per  eosdem  propter  difjicultatem  aliquorum  articulorum 
term,inari  non  possunt,  referantur  ad  justiciarios  nostros  de 
banco,  et  ibi  terminentur. 

13.  Assise  de  ultima  presentatione  semper  capiantur  coram 
justiciariis  nostris  de  banco  et  ibi  terminentur. 

14 12  (20).  Liber  homo  non  amercietur  pro  parvo  delicto  nisi 
secundum  modum  ipsius  delicti,  et  pro  magno  delicto,  secundum 

'^Stifficit,  in  1215.  ^De^  in  1215.  ^  Donee,  in  1215. 

^'Solverint,  in  1215,  1216  and  1217. 

5  Three  additional  chapters  (10,  11  and  12)  occur  in  12 15. 

^  Et  civitasy  in  121 5.  '  Tarn  per  terras.,  quam  per  aquas,  in  1215. 

'^Two  additional  chapters  (14  and  15)  occur  in  1215. 

^  Et  de  ultima  presentacione,  added  in  12 1 5.  ^^  Duos  justiciarios,  in  1215. 

^^  Fer  quatuor  vices  in  anno,  in  1215,  which  concludes  somewhat  differently,  see 
supra,  p.  296.  The  charter  of  1216  is  practically  the  same,  here,  as  that  of  12x5 ; 
while  that  of  1225  reproduces  that  of  12 17. 

*2  An  additional  chapter  (19)  occurs  in  121 5. 


502  APPENDIX 

magnltudinem  delicti,  salvo  contenemento  suo;  et  mercator 
eodem  modo  salva  mercandisa  sua;  et  villanus  alterius  quam 
noster^  eodem  modo  amercietur  salvo  wainagio  suo,  si  inci- 
dent 2  in  misericordiam  nostram  :  et  nulla  predictarum  miseri- 
cordiarum  ponatur  nisi  per  sacramentum  ^  proborum  et  legalium 
hominum  de  visneto. 

(21).  Comites  et  barones  non  amercientur  nisi  per  pares  suos, 
et  non  nisi  secundum  modum  delicti. 

(22)  A  Nulla  ecclesiastica  persona  amercietur  secundum  quanti- 
tatem  beneficii  sui  ecclesiastici,  set  secundum  laicum  tenementum 
suum,  et  secundum  quantitatem  delicti. 

15  (23).  Nee  villa,  nee  homo,  distringatur  facere  pontes  ad 
riparias  nisi  qui  ex  antiquo  et  de  jure  facere  debet. ^ 

16.6  Nulla  riparia  decetero  defendatur,  nisi  ille  que  fuerunt 
in  defense  tempore  regis  Henrici  avi  nostri,  per  eadem  loca  et 
eosdem  terminos  sicut  esse  consueverunt  tempore  suo. 

17  (24).  Nullus  vicecomes,  constabularius,  coronatores  vel  alii 
ballivi  nostri  teneant  placita  corone  nostre. 

18^  (26).  Si  aliquis  tenens  de  nobis  laicum  feodum  moriatur, 
et  vicecomes  vel  ballivus  noster  ostendat  litteras  nostras  patentes 
de  summonitione  nostra  de  debito  quod  defunctus  nobis  debuit, 
liceat  vicecomiti  vel  ballivo  nostro  attachiare  et  inbreviare  catalla 
defuncti  inventa  in  laico  feodo  ad  valenciam  illius  debiti  per 
visum  legalium  hominum,  ita  tamen  quod  nichil  inde  amoveatur 
donee  persolvatur  nobis  debitum  quod  clarum  fuerit,  et  residuum 
relinquatur  executoribus  ad  faciendum  testamentum  defuncti ;  et 
si  nichil  nobis  debeatur  ab  ipso,  omnia  catalla  cedant  defuncto, 
salvis  uxori  ipsius  et  pueris  suis  ^  rationabilibus  partibus  suis. 

^Alterius  quavi  noster^  omitted  also  in  1216  ;  first  inserted  in  1217. 

^  Inciderint^  in  1215.  ^  Sacramenta^  in  1217. 

*This  reads  in  1215  :  Nullus  dericus  amercietur  de  laico  tenemento  suo,  nisi 
secundum  modum  aliorum  predictorum,  et  non  secundum  beneficii  sui  ecclesi- 
astici. 

In  1216 :  Nullus  dericus  amercietur^  nisi  secttndum  fo7'mam  predictorum,  et 
non  secundum  quantitatem  beneficii  sui  ecclesiastici. 

The  Charter  of  1217  is  here  identical  with  that  of  1225,  except  that  j-^a?  takes  the 
place  of  set. 

^Debent,  in  1 2 15. 

*  Compare  with  last  clause  of  c.  47  of  1215,  which  was  omitted  in  1216.  The 
Charter  of  121 7  here  resembles  that  of  1225. 

'An  additional  chapter  (25)  occurs  in  1215  ;  see  supra^  p.  317,  which  should  be 
compared  with  c.  35  of  1225. 

•Omitted  in  12 16. 


THE  GREAT  CHARTER  OF  HENRY   HI.         503 

19 1  (28).  Nullus  constabularius  vel  ejus  ballivus  2  capiat  blada 
vel  alia  catalla  alicujus  qui  non  sit  de  villa  ubi  castrum  situm 
est,  nisi  statim  inde  reddat  denarios  aut  respectum  inde  habere 
possit  de  voluntate  venditoris  ;  si  autem  de  villa  ipsa  fuerit,  infra 
quadraginta  dies  precium  reddat.^ 

20  (29).  Nullus  constabularius  distringat  aliquem  militem  ad 
dandum  denarios  pro  custodia  castri,  si  ipse  earn  facere  voluerit* 
in  propria  persona  sua,  vel  per  alium  probum  hominem,  si  ipse 
earn  facere  non  possit  propter  rationabilem  causam,  et,  si  nos 
duxerimus  eum^  vel  miserimus  in  exercitum,  erit  quietus  de 
custodia  secundum  quantitatem  temporis  quo  per  nos  fuerit  in 
€xercitu  de  feodo  pro  quo  fecit  servicium  in  exercitu.^ 

21  (30).  Nullus  vicecomes,  vel  ballivus  noster,  vel  alius  ^  capiat 
equos  vel  carettas  alicujus  ^  pro  cariagio  faciendo,  nisi  ^  reddat 
liberationem  antiquitus  statutam,  scilicet  pro  caretta  ad  duos 
equos  decern  denarios  per  diem,  et  pro  caretta  ad  tres  equos 
quatuordecim  denarios  per  diemA^  Nulla  caretta  dominica  ali- 
cujus ecclesiastice  persone  vel  militis  vel  alicujus  domine  capia- 
tur  per  ballivos  predictos. 

(31).  Nee  nos  nee  ballivi  nostri  nee  alii^^  capiemus  alienum 
boscum  ad  castra  vel  alia  agenda  nostra,  nisi  per  voluntatem 
illius  12  cujus  boscus  ille  fuerit. 

22  (32).  Nos  non  tenebimus  terras  eorurnl  i^  qui  convicti 
fuerint  de  felonia,  nisi  per  unum  annum  et  unum  diem ;  et  tunc 
reddantur  terre  dominis  feodorum. 

23  (33)-  Omnes  kidelli  decetero  deponantur  penitus  per  Tami- 
siam  et  Medeweiam  i^  et  per  totam  Angliam,  nisi  per  costeram 
maris. 

^  An  additional  chapter  (27)  occurs  in  1215  ;  see  su/>ra,  p.  326. 
^  Alius  ballivus  noster^  in  12 15,  which  omits  ejus. 

3  In  1216  the  last  phrase  reads  :  si  atitem  de  villa  fuerit ^teneatur  injra  tres 
septimanas  precium  reddere. 

*^  Si  facere  voluerit  ctistodiam  illam^  in  121 5. 

^  Eum  comes  after  viiseHmus  in  121 5. 

•'The  words  in  italics  here  are  omitted  also  in  1216. 

'  Aliquis  alius^  in  1215.  ^Alicujus  liberi  kominis,  in  1215. 

^  Nisi  de  voluntate  ipsitis  liberi  hominis^  in  1 21 5. 

^^This  chapter  is  not  in  12 16,  but  first  occurs  in  1217. 

^'^  Nee  aliiy  omitted  also  in  12 16.  '^'^Ipsius^  in  place  oi  illius,  in  1215. 

'^^  Illorum,  in  place  oi  eorurn,  in  1 21 5.     ^^De  Tamisia,  et  de  Medewaye,  in  1215. 


504  APPENDIX 

24  (34).  Breve  quod  vocatur  Precipe  decetero  non  fiat  alicui 
de  aliquo  1  tenemento,  unde  liber  homo  perdat  2  curiam  suam. 

25  (35).  Una  mensura  vini  sit  per  totum  regnum  nostrum,  et 
una  mensura  cervisie,  et  una  mensura  bladi,  scilicet  quarterium 
London.,  et  una  latitudo  pannorum  tinctorum  et  russettorum 
et  haubergettorum,  scilicet  due  ulne  infra  listas ;  de  ponderibus 
vero  3  sit  ut  de  mensuris. 

26  (36).  Nichil  detur^  de  cetero  pro  brevi  inquisitionis  ab  eo 
qui  inquisitionem  petit  ^  de  vita  vel  membris,  set  gratis  conce- 
datur  et  non  negetur. 

27  ^37)'  Si  aliquis  teneat  de  nobis  per  feodifirmam  vel  socca- 
gium,  vel  per  burgagium,  et  de  alio  terram  teneat  per  servicium 
militare,  nos  non  habebimus  custodiam  heredis  nee  terre  sue  que 
est  de  feodo  alterius,  occasione  illius  feodifirme,  vel  soccagii,  vel 
burgagii,  nee  habebimus  custodiam  illius  feodifirme  vel  soccagii 
vel  burgagii,  nisi  ipsa  feodifirma  debeat  servicium  militare.  Nos 
non  habebimus  custodiam  heredis  nee  ^  terre  alicujus  quam  tenet 
de  alio  per  servicium  militare,  occasione  alicujus  parve  serjan- 
terie  quam  tenet  de  nobis  per  servicium  reddendi  nobis  cultellos, 
vel  sagittas,  vel  hujusmodi. 

28  (38).  Nullus  ballivus  ponat  decetero  aliquem  ad  legem 
tnanifestam  vel  ad  juramentum  simplici  loquela  sua,  sine  testibus 
fidelibus  ad  hoc  inductis. 

29  (39).  Nullus  liber  homo  decetero  capiatur  vel  inprisonetur 
aut  disseisiatur  de  aliquo  libero  tenemento  suo  vel  lihertatibus 
vel  liberis  consuetudinibus  suis^'^  aut  utlagetur,  aut  exuletur  aut 
aliquo  alio  modo  destruatur,  nee  supier  eum  ibimus,  nee  super 
eum  mittemus,  nisi  per  legale  judicium  parium  suorum,  vel  per 
legem  terre. 

(40).  NuUi  vendemus,  nulli  negabimus  aut  differemus  rectum 
vel^  justiciam. 

30  (41).  Omnes  mercatores,  nisi  publice  antea  prohibiti  fue- 
rint,  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  vel  ^^  vendendum  sine  omnibus  toltis 

'^Libera  follows  aliquo^  in  1297. 

^  Amittere  possit,  in  1215;  omittere  possit^  in  1216.         ^  Auteni,  in  1^15. 

*  Vel  capiatur^  after  detur,  in  1215. 

^The  words  in  italics  are  omitted  also  in  12 16. 

^  Et  for  nec^  in  1216  ;  vel  in  1217. 

'The  words  in  italics  are  omitted  also  in  1216.  ^  Aut^  in  1215. 

^  Aquas,  in  1216.  ^^  Et^  in  121 5  and  1217. 


THE  GREAT  CHARTER  OF  HENRY  HI.         505 

malis  1  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,  attachien- 
tur  sine  dampno  corporum  vel  rerum,  donee  sciatur  a  nobis  vel 
a  capitali  justiciario  nostro  quomodo  mercatores  terre  nostre 
tractentur,  qui  tunc  invenientur  in  terra  contra  nos  gwerrina ; 
et,  si  nostri  salvi  sint  ibi,  alii  salvi  sint  in  terra  nostra. 

31  2  (43).  Si  quis  tenuerit  de  aliqua  escaeta,  sicut  de  honore 
Wallingefordie,  Bolonie,  Notingeham,  Lancastrie,  vel  de  aliis^ 
que  sunt  in  manu  nostra,  et  sint  baronie,  et  obierit,  heres  ejus 
non  det  aliud  relevium  nee  fiat^  nobis  aliud  servicium  quam 
faceret  baroni,  si  ipsa  5  esset  in  manu  baronis ;  et  nos  eodem 
modo  earn  tenebimus  quo  baro  eam  tenuit;  nee  nos,  occasione 
talis  baronie  vel  escaete,  habebimus  aliquam  escaetam  vel  cus' 
todiam  aliquorum  hominum  nostrorum,  nisi  alibi  tenuerit  de 
nobis  in  capite  ille  qui  tenuit  baroniam  vel  escaetam.^ 

32.'^  Nullus  liber  homo  decetero  det  amplius  alicui  vel  vendat 
de  terra  sua  quam  ut  de  residuo  terre  sue  possit  sufficienter 
fieri  domino  feodi  servicium  ei  debitum  quod  pertinet  ad  feodum 
illud. 

33  s  (46).  Omnes  patroni  abbatiarum  qui  habent  cartas  regum 
Anglie  de  advocatione,  vel  antiquam  tenuram  vel  possessionem, 
habeant  earum  custodiam  cum  vacaverint,  sicut  habere  debent, 
et  sicut  supra  declaratum  est. 

34  9  (54).  Nullus  capiatur  vel  imprisonetur  propter  appellum 
femine  de  morte  alterius  quam  viri  sui. 

1  Ma/is  toltis^  in  1 2 1 5 . 

2  An  additional  chapter  (42)  occurs  in  1215. 
^Eskaetis,  after  aliisy  in  12 15. 

^  Faciat,  ioxjiat,  in  121 5. 

^  Si  baronia  ilia  esset ^  in  1215  ;  si  terra  ilia  esset ^  in  1216  ;  si  ilia  esset,  in  12 17. 

^The  words  in  italics  are  omitted  also  in  12 16. 

'Two  additional  chapters  (44  and  45)  occur  in  1215. 

8  The  charter  of  121 5  reads:  onuies  barones  qtii  fundaverunt  abbatias,  unde 
habent  cartas  regwii  Anglie,  vel  antiquam  tenuram,  habeant  eartim  custodiam 
cum  vacaverint,  sicut  habere  debent. 

^  Seven  additional  chapters  (47  to  53)  occur  in  1215.  The  charter  of  1216  omits 
CO.  32  and  33  of  1225,  but  has  instead  of  them  three  chapters  of  which  c.  36  is  the 
same  as  c.  44  of  121 5,  except  that  stmt  appears  for  sint',  c.  37  is  the  same  as  c.  46 
of  121 5,  as  quoted  in  last  note,  except  that  the  words  et  sictit  stipi-a  declaratum  est 
are  added  at  the  end  ;  c.  38  is  of  the  same  tenor  as  c.  47  of  121 5,  except  that  John's 
tempore  nostro  is  changed  to  meet  the  altered  circumstances. 


5o6  APPENDIX 

35.^  Nullus  comitatus  decetero  teneatur,  nisi  de  mense  in 
mensem;  et,  ubi  major  terminus  esse  solehat,  major  sit.  Nee 
aliquis  vicecomes  vel  ballivus  faciat  turnum  suum  per  hundredum 
nisi  bis  in  anno  et  non  nisi  in  loco  debito  et  consueto,  videlicet 
semel  post  Pascha  et  iterum  post  festum  sancti  Michaelis.  Et 
visus  de  franco  plegio  tunc  fiat  ad  ilium  terminum  sancti 
Michaelis  sine  occasione,  ita  scilicet  quod  quilibet  habeat  liber- 
tates  suas  quas  habuit  et  habere  consuevit  tempore  regis  Henrici 
avi  nostri,  vel  quas  postea  perquisivit.  Fiat  autem  visus  de 
franco  plegio  sic,  videlicet  quod  pax  nostra  teneatur,  et  quod 
tethinga  integra  sit  sicut  esse  consuevit,  et  quod  vicecomes  non 
querat  occasiones,  et  quod  contentus  sit  eo  quod  vicecomes 
habere  consuevit  de  visu  suo  faciendo  tempore  regis  Henrici 
avi  nostri. 

36.  Non  liceat  alicui  decetero  dare  terram  suam  alicui  domui 
religiose,  ita  quod  eam  resumat  tenendam  de  eadem  domo,  nee 
liceat  alicui  domui  religiose  terram  alicujus  sic  accipere  quod 
tradat  illam  ei^  a  quo  ipsam  recepit ^  tenendam.  Si  quis  autem 
de  cetero  terram  suam  alicui  domui  religiose  sic  dederit,  et  super 
hoc  convincatur,  donum  suum  penitus  cassetur,  et  terra  ilia 
domino  suo  illius  feodi  incurratur. 

37.  Scutagium  decetero  capiatur  sicut  capi  solehat^  tempore 
regis  Henrici  avi  nostri.  Et  salve  ^  sint  archiepiscopis,  epis- 
copis,  abbatibus,  prioribus,  templariis,  ho  spit  alar  iis ,  comitibus, 
baronibus  et  omnibus  aliis  tarn  ecclesiasticis  quam  secularibus 
personis  Ubertates  et  libere  consuetudines  quas  prius  habuerunt. 

{60).  Omnes  autem  istas  consuetudines  predictas  et  libertates 
quas  concessimus  in  regno  nostro  tenendas  quantum  ad  nos 
pertinet  erga  nostros,  omnes  de  regno  nostro  tam  clerici  quam 
laid  observent  quantum   ad  se  pertinet  erga   suos.^     Pro   hac 

^The  charter  of  1216  (like  that  of  1215)  omits  cc.  35,  36,  and  37  of  1225  (all  of 
which  occur  in  1217).  C.  35  of  1225,  however,  should  be  compared  with  c.  25  of 
1215,  and  c.  37  of  1225  with  c.  12  of  1215. 

The  charter  of  12 15  has  five  additional  chapters  here  (55  to  59),  of  which  c.  56 
appears  in  1216  as  c.  40,  with  the  alteration  made  necessary  by  the  new  reign. 

"^  Eavi  illi  (in  place  oi  illam  et),  in  1217. 

^  Receperit  (in  place  oi  recepit)^  in  121 7. 

*  Consuevit  (in  place  oi  solebat),  in  12 17. 

*The  last  sentence,  from  Et  salve  onwards,  is  omitted  in  1217. 

« After  erga  stios,  each  charter  proceeds  differently.  The  charter  of  1215  has 
three  additional  chapters  (61,  62,  and  63,  g.v.\ 

The  charter  of  12 16  has  one  additional  chapter :  Quia  vero  quedam  capitula 
in  priori  {sic)  carta  continebantur  que  gravia  et  dubitabilia  videbantur,  scilicet  de 


THE  GREAT  CHARTER  OF  HENRY  HI.    507 

autem  concessione  et  donatione  libertatum  istaruni  et  aliarum 
libertatum  contentarum  in  carta  nostra  de  libertatihus  foreste, 
archiepiscopi,  episcopi,  abhates,  priores,  comites,  'barones, 
milites,  libere  tenentes,  et  omnes  de  regno  nostro  dederunt  nobis 
quintam  decimam  partem  omnium  mobilium  suorum.  Con- 
cessimus  etiam  eisdem  pro  nobis  et  heredibus  nostris  quod  nee 
nos  nee  heredes  nostri  aliquid  perquiremus  per  quod  libertates 
in  hac  carta  contente  infringantur  vel  infirmentur ;  et,  si  de 
aliquo  aliquid  contra  hoc  perquisitum  fuerit,  nichil  valeat  et 
pro  nullo  habeatur. 

Hiis  testibus  domino  Stephano  Cantuariensi  archiepiscopo, 
Eustachio  Lundoniensi,  Jocelino  Bathoniensi,  Petro  Winto- 
niensi,  Hugoni  Lincolniensi,  Ricardo  Sarrisberiensi,  Benedicto 
Roffensi,  Willelmo  Wigorniensi,  Johanne  Eliensi,  Hugone 
Herefordiensi,  Radulpho  Cicestriensi,  Willelmo  Exoniensi  epis- 
copis,  abbate  sancti  Albani,  abbate  sancti  Edmundi,  abbate  de 
Bello,  abbate  sancti  Augustini  Cantuariensis,  abbate  de  Eves- 
hamia,  abbate  de  W estmonasterio ,  abbate  de  Burgo  sancti  Petri, 
abbate  Radingensi,  abbate  Abbendoniensi,  abbate  de  Maume- 
buria,  abbate  de  Winchecomba,  abbate  de  Hida,  abbate  de 
Certeseia,   abbate   de  Sireburnia,   abbate  de   Cerne,   abbate  de 

scutagiis  et  auxiliis  assidendis,  de  debitis  Judeorum  et  aliorum  et  de  libertate 
exeundi  de  regno  nostro,  vel  redeundi  in  regnum,  et  de  forestis  et  forestariis, 
warrenis  et  warrenariis,  et  de  consuetudinis  comitatum,  et  de  ripariis  et  earum  cus- 
todibus,  placuit  supradictis  prelatis  et  magnatibus  ea  esse  in  respectu  quousque 
plenius  consilium  habuerimus ;  et  tunc  faciemus  plenissime  tarn  de  hiis  quam  de 
aliis  que  occurrerint  emendenda,  que  ad  communem  omnium  utilitatem  pertinuerint 
et  pacem  et  statum  nostrum  et  regni  nostri.  Quia  vero  sigillum  nondum  habuimus, 
presentem  cartam  sigillis  venerabilis  patris  nostri  domini  Gualonis  tituli  sancti 
Martini  presbiteri  cardinalis,  apostolice  sedis  legati,  et  Willelmi  Mariscalli  comitis 
Penbrocie,  rectoris  nostri  et  regni  nostri,  fecimus  sigillari,  Testibus  omnibus  pre- 
nominatis  et  aliis  multis,  Datum  per  manus  predictorum  domini  legati  et  Willelmi 
Mariscalli,  comitis  Penbrocie  apud  Bristollum  duodecimo  die  novembris  anno 
regni  nostri  primo. 

The  charter  of  12 17  has  two  additional  chapters  (46  and  47) : 
C.  46  :  Salvis  archiepiscopis,  episcopis,  abbatibus,  prioribus,  templariis,  hospi- 
talariis,  comitibus,  baronibus,  et  omnibus  aliis,  tam  ecclesiasticis  personis,  quam 
secularibus,  libertatihus  et  liberis  consuetudinibus  quas  prius  habuerunt — (which 
may  be  compared  with  the  last  clause  of  c.  37  of  1225,  supra). 

C.  47  :  Statuimus  etiam,  de  communi  consilio  tocius  regni  nostri,  quod  omnia 
castra  adulterina,  videlicet  ea  que  a  principio  guerre  mote  inter  dominum 
Johannem  patrem  nostrum  et  barones  suos  Anglie  constructa  fuerint  vel  reedi- 
ficata,  statim  deruantur.  Quia  vero  nondum  habuimus  sigillum,  banc  sigillis 
domini  legati  predicti  et  comitis  Willelmi  Mariscalli  rectoris  et  regni  nostri 
fecimus  sigillari. 


5o8  APPENDIX 

Abbotebiria,  abbate  de  Middletonia,  abbate  de  Seleby,  abbate 
de  Wyteby,  abbate  de  Cirencestria,  Huberto  de  Burgo  justiciario, 
Ranulfo  comite  Cestrie  et  Lincolnie,  Willelmo  comite  Sarrisberie, 
Willelmo  comite  Warennie,  Gilberto  de  Clara  comite  Gloucestrie 
et  Hertfordie,  Willelmo  de  Ferrariis  comite  Derbeie,  Willelmo 
de  Mandevilla  comite  Essexie,  Hugone  Le  Bigod  comite  Nor- 
folcie,  Willelmo  comite  Aubemarle,  Hunfrido  comite  Herefordie, 
Johanne  constabulario  Cestrie,  Roberto  de  Ros,  Roberto  filio 
Walteri,  Roberto  de  Veteri  ponte,  Willielmo  Brigwerre,  Ricardo 
de  Munfichet,  Petro  filio  Herberti,  Matheo  fUio  Herberti, 
Willielmo  de  Albiniaco,  Roberto  Gresley,  Reginaldo  de  Brahus, 
Johanne  de  Munemutha,  Johanne  filio  Alani,  Hugone  de  Mortuo- 
mari,  Waltero  de  Bellocampo,  Willielmo  de  sancto  Johanne, 
Petro  de  Malalacu,  Briano  de  Insula,  Thoma  de  Muletonia, 
Ricardo  de  Argentein.,  Gaufrido  de  Nevilla,  Willielmo  Mauduit, 
Johanne  de  Baalun. 

Datum  apud  Westmonasterium  undecimo  die  februarii  anno 
regni  nostri  nono. 

VIII.  CARTA  DE  FORESTA.i 

(6  NOVEMBER,    12  I7.) 

Henricus  Dei  gratia  rex  Anglie,  dominus  Hibernie,  dux 
Normannie,  Aquitanie  et  comes  Andegavie,  archiepiscopis,  epis- 
copis,  abbatibus,  prioribus,  comitibus,  baronibus,  justiciariis, 
forestariis,  vicecomitibus,  prepositis,  ministris,  et  omnibus  balli- 
vis  et  fidelibus  suis,  salutem.  Sciatis  quod,  intuitu  Dei  et  pro 
salute  anime  nostre  et  animarum  antecessorum  et  successorum 
nostrorum,  ad  exaltacionem  Sancte  Ecclesie  et  emendacionem 
regni  nostri,  concessimus  et  hac  presenti  carta  confirmavimus  pro 
nobis  et  heredibus  nostris  in  perpetuum,  de  consilio  venerabilis 
patris  nostri  domini  Gualonis  tituli  sancti  Martini  presbiteri 
cardinalis  et  apostolice  sedis  legati,  domini  Walteri  Eboracensis 
archiepiscopi,  Willelmi  Londoniensis  episcopi,  et  aliorum  epis- 
coporum  Anglie,  et  Willelmi  Marescalli  comitis  Penbrocie, 
rectoris  nostri  et  regni  nostri,  et  aliorum  fidelium  comitum  et 
baronum  nostrorum  Anglie,  has  libertates  subscriptas  tenendas 
in  regno  nostro  Anglie,  in  perpetuum  : 

I.   In  primis  omnes  foreste  quas  Henricus  rex  avus  noster 

^See  supra,  pp.  146-7.  The  text  is  taken  from  the  Statutes  of  the  Realm, 
I.  20-21.  Bemont,  Chartes,  64flf.,  gives  in  footnotes  the  variants  in  the  reissue 
of  1225. 


CARTA  DE  FORESTA  509 

afforestavit  videaiitur  per  bonos  et  legales  homines  ;  et,  si  boscum 
aliquem  alium  quam  suum  dominicum  afforestaverit  ad  damp- 
num  illius  cujus  boscus  fuerit,  deafforestentur.  Et  si  boscum 
suum  proprium  afforestaverit,  remaneat  foresta,  salva  communa 
de  herbagio  et  aliis  in  eadem  foresta,  illis  qui  eam  prius  habere 
consueverunt. 

2.  Homines  qui  manent  extra  forestam  non  veniant  decetero 
coram  justiciariis  nostris  de  foresta  per  communes  summoni- 
ciones,  nisi  sint  in  placito,  vel  plegii  alicujus  vel  aliquorum  qui 
attachiati  sunt  propter  forestam. 

3.  Omnes  autem  bosci  qui  fuerunt  afforestati  per  regem 
Ricardum  avunculum  nostrum,  vel  per  regem  Johannem  patrem 
nostrum  usque  ad  primam  coronacionem  nostram,  statim  de- 
afforestentur, nisi  fuerit  dominicus  boscus  noster. 

4.  Archiepiscopi,  episcopi,  abbates,  priores,  comites  et  barones 
et  milites  et  Hbere  tenentes,  qui  boscos  suos  habent  in  forestis, 
habeant  boscos  suos  sicut  eos  habuerunt  tempore  prime  corona- 
cionis  predicti  regis  Henrici  avi  nostri,  ita  quod  quieti  sint  in 
perpetuum  de  omnibus  purpresturis,  vastis  et  assartis  factis  in 
illis  boscis,  post  illud  tempus  usque  ad  principium  secundi  anni 
coronacionis  nostre.  Et  qui  de  cetero  vastum,  purpresturam,  vel 
assartum  sine  licencia  nostra  in  illis  fecerint,  de  vastis  et  assartis 
respondeant. 

5.  Reguardores  nostri  eant  per  forestas  ad  faciendum  reguar- 
dum  sicut  fieri  consuevit  tempore  prime  coronacionis  predicti 
regis  Henrici  avi  nostri,  et  non  aliter. 

6.  Inquisicio,  vel  visus  de  expeditacione  canum  existencium  in 
foresta,  decetero  fiat  quando  debet  fieri  reguardum,  scilicet  de 
tercio  anno  in  tercium  annum ;  et  tunc  fiat  per  visum  et  testi- 
monium legalium  hominum  et  non  aliter.  Et  ille,  cujus  canis 
inventus  fuerit  tunc  non  expeditatus,  det  pro  misericordia  tres 
solidos;  et  de  cetero  nullus  bos  capiatur  pro  expeditacione. 
Talis  autem  sit  expeditacio  per  assisam  communiter  quod  tres 
ortilli  abscidantur  sine  pelota  de  pede  anteriori ;  nee  expedi- 
tentur  canes  de  cetero,  nisi  in  locis  ubi  consueverunt  expeditari 
tempore  prime  coronacionis  regis  Henrici  avi  nostri. 

7.  Nullus  forestarius  vel  bedellus  decetero  faciat  scotale,  vel 
colligat  garbas,  vel  avenam,  vel  bladum  aliud,  vel  agnos,  vel 
porcellos,  nee  aliquam  collectam  f aciant ;  et  per  visum  et  sacra- 
mentum  duodecim  reguardorum  quando  facient  reguardum,  tot 
forestarii  ponantur  ad  forestas  custodiendas,  qudt  ad  illas  cus- 
todiendas  rationabiliter  viderint  sufiicere. 


510  APPENDIX 

8.  Nullum  suanlmotum  de  cetero  teneatur  in  regno  nostro 
nisi  ter  in  anno;  videlicet  in  principio  quindecim  dierum  ante 
festum  Sancti  Michaelis,  quando  agistatores  conveniunt  ad  agis- 
tandum  dominicos  boscos  nostros ;  et  circa  festum  Sancti  Martini 
quando  agistatores  nostri  debent  recipere  pannagium  nostrum ; 
et  ad  ista  duo  suanimota  conveniant  forestarii,  viridarii,  et  agis- 
tatores, et  nullus  alius  per  districtionem  ;  et  tercium  suanimotum 
teneatur  in  inicio  quindecim  dierum  ante  festum  Sancti  Johannis 
Baptiste,  pro  feonacione  bestiarum  nostrarum ;  et  ad  istud 
suanimotum  tenendum  convenient  forestarii  et  viridarii  et  nulli 
alii  per  districtionem.  Et  preterea  singulis  quadraginta  diebus 
per  totum  annum  conveniant  viridarii  et  forestarii  ad  videndum 
attachiamenta  de  foresta,  tarn  de  viridi,  quam  de  venacione,  per 
presentacionem  ipsorum  forestariorum,  et  coram  ipsis  attachiatis. 
Predicta  autem  suanimota  non  teneantur  nisi  in  comitatibus  in 
quibus  teneri  consueverunt. 

g.  Unusquisque  liber  homo  agistet  boscum  suum  in  foresta 
pro  voluntate  sua  et  habeat  pannagium  suum.  Concedimus 
eciam  quod  unusquisque  liber  homo  possit  ducere  porcos  suos 
per  dominicum  boscum  nostrum,  libere  et  sine  inpedimento, 
ad  agistandum  eos  in  boscis  suis  propriis,  vel  alibi  ubi  voluerit. 
Et  si  porci  alicujus  liberi  hominis  una  nocte  pernoctaverint  in 
foresta  nostra,  non  inde  occasionetur  ita  quod  aliquid  de  suo 
perdat. 

10.  Nullus  de  cetero  amittat  vitam  vel  menbra  pro  vena- 
cione nostra;  set,  si  aliquis  captus  fuerit  et  convictus  de 
capcione  venacionis,  graviter  redimatur,  si  habeat  unde  redimi 
possit;  et  si  non  habeat  unde  redimi  possit,  jaceat  in  prisona 
nostra  per  unum  annum  et  unum  diem ;  et,  si  post  unum 
annum  et  unum  diem  pleglos  invenire  possit,  exeat  a  prisona; 
sin  autem,  abjuret  regnum  Anglie. 

11.  Quicunque  archiepiscopus,  episcopus,  comes  vel  baro 
transient  per  forestam  nostram,  liceat  ei  capere  unam  vel  duas 
bestias  per  visum  forestarii,  si  presens  fuerit ;  sin  autem,  faciat 
cornari,  ne  videatur  furtive  hoc  facere. 

12.  Unusquisque  liber  homo  decetero  sine  occasione  faciat  in 
bosco  suo,  vel  in  terra  sua  quam  habeat  in  foresta,  molendinum, 
vivarium,  stagnum,  marleram,  fossatum,  vel  terram  arabilem 
extra  cooperatum  in  terra  arabili,  ita  quod  non  sit  ad  nocumen- 
tum  alicujus  vicini. 

13.  Unusquisque  liber  homo  habeat  in  boscis  suis  aereas, 
ancipitrum  et  spervariorum  et  falconum,  aquilarum,  et  de  hey- 


CARTA  DE  FORESTA  511 

rinis  et   habeat   similiter   mel  quod   inventum   fuerit  in   boscis 
suis. 

14.  Nullus  forestarius  de  cetero,  qui  non  sit  forestarius  de 
feudo  reddens  nobis  firmam  pro  balliva  sua,  capiat  chiminagium 
aliquod  in  balliva  sua ;  forestarius  autem  de  feudo  firmam  nobis 
reddens  pro  balliva  sua  capiat  chiminagium,  videlicet  pro  careta 
per  dimidium  annum  duos  denarios,  et  pro  equo  qui  portat 
sumagium  per  dimidium  annum  unum  obolum,  et  per  alium 
dimidium  annum  obolum,  et  non  nisi  de  illis  qui  de  extra 
ballivam  suam,  tanquam  mercatores,  veniunt  per  licenciam  suam 
in  ballivam  suam  ad  buscam,  meremium,  corticem  vel  carbonem 
emendum,  et  alias  ducendum  ad  vendendum  ubi  voluerint :  et 
de  nulla  alia  careta  vel  sumagio  aliquod  chimunagium  capiatur  : 
et  non  capiatur  chiminagium  nisi  in  locis  illis  ubi  antiquitus 
capi  solebat  et  debuit.  Illi  autem  qui  portant  super  dorsum 
suum  buscam,  corticem,  vel  carbonem,  ad  vendendum,  quamvis 
inde  vivant,  nullum  de  cetero  dent  chiminagium.  De  boscis 
autem  aliorum  nullum  detur  chiminagium  foristariis  nostris, 
preterquam  de  dominicis  bocis  nostris. 

15.  Omnes  utlagati  pro  foresta  tantum  a  tempore  regis 
Henrici  avi  nostri  usque  ad  primam  coronacionem  nostram, 
veniant  ad  pacem  nostram  sine  inpedimento,  et  salvos  plegios 
Inveniant  quod  de  cetero  non  forisfaciant  nobis  de  foresta 
nostra. 

16.  Nullus  castellanus  vel  alius  teneat  placita  de  foresta 
sive  viridi  sive  de  venacione,  sed  quilibet  forestarius  de  feudo 
attachiet  placita  de  foresta  tam  de  viridi  quam  de  venacione, 
et  ea  presentet  viridariis  provinciarum  et  cum  irrotulata  fuerint 
et  sub  sigillis  viridariorum  inclusa,  presententur  capitali  fores- 
tario  cum  in  partes  illas  venerit  ad  tenendum  placita  foreste,  et 
coram  eo  terminentur. 

17.  Has  autem  libertates  de  forestis  concessimus  omnibus, 
salvis  archiepiscopis,  episcopis,  abbatibus,  prioribus,  comitibus, 
baronibus,  militibus  et  aliis  tam  personis  ecclesiasticis  quam 
secularibus,  Templariis  et  Hospitalariis,  libertatibus  et  liberis 
consuetudinibus  in  forestis  et  extra,  in  warennis  et  aliis,  quas 
prius  habuerunt.  Omnes  autem  istas  consuetudines  predictas 
et  libertates,  quas  concessimus  in  regno  nostro  tenendas  quan- 
tum ad  nos  pertinet  erga  nostros,  omnes  de  regno  nostro  tam 
clerici  quam  laici  observent  quantum  ad  se  pertinet  erga  suos. 
Quia  vero  sigillum  nondum  habuimus,  presentem  cartam  sigillis 
venerabllis  patris  nostri  domini  Gualonis  tituli  Sancti  Martini 


512  APPENDIX 

presbiteri  cardinalis,  apostolice  sedis  legati,  et  Willelmi  Mares- 
calli  comitis  Penbrok,  rectoris  nostri  et  regni  nostri,  fecimus 
sigillari.  Testibus  prenominatis  et  aliis  multis.  Datum  per 
manus  predictorum  domini  legati  et  Willelmi  Marescalli  apud 
Sanctum  Paulum  London.,  sexto  die  Novembris,  anno  regni 
nostri  secundo. 


SELECT   BIBLIOGRAPHY    AND    LIST    OF 
AUTHORITIES   REFERRED   TO. 

I.     COMMENTARIES   AND   OTHER   WORKS   ON   MAGNA   CARTA 
(CHRONOLOGICALLY   ARRANGED). 

The  Mirror  of  Justices,  edited  by  Whittaker,  W.   J.    (Selden  Society)  ; 

1895. 
Coke,  Sir  Edward,  Second  Institute,  1641  ;  17th  edition,  1817. 
Cooke,  Edward,  Magna  Charta  made  in  the  ninth  year  of  King  Henry  III. 

and  confirmed  by  King  Edward  I.  in  the  twentieth  year  of  his  reign  ; 

1684. 
Blackstone,  Sir  William,  The  Great  Charter  and  Charter  of  the  Forest,  to 

which  is  prefixed  the  History  of  the  Charters  ;  1759. 
Barrington,  Daines,  Observations  upon  the  Statutes  from  Magna  Charta  to 

21  James  I.  ;   1766. 
Sullivan,  F.  S.,  An  Historical  Treatise  on  the  Feudal  Law,  with  a  Com- 
mentary on  Magna  Charta  ;  1772. 
Thomson,  Richard,  An  Historical  Essay  on  the  Magna  Charta  of  King  John  ; 

1829. 
Lau,  Thaddaeus,  Die  Entstehungsgeschichte  der  Magna  Charta  ;    1856. 
Bemont,  Charles,  Chartes  des  Libertes  Anglaises  ;  1892. 
Hantos,  Elem6r,  The  Magna  Carta  of  the  English  and  of  the  Hungarian 

Constitution  ;  1904. 

II.     CHRONICLES   AND   ANNALS. 

Annals  of  Dunstable,  edited  by  H.  R.  Luard  (Rolls  Series)  ;    1866. 
Annals  of  Waverley,  edited  by  H.  R.  Luard  (Rolls  Series)  ;  1865. 
Benedict  Abbot,  Gesta  Regis  Henrici  Secundi,  edited  by  William  Stubbs 

(Rolls  Series)  ;   1867. 
Histoire  de  Guillaume  le  Marichal,  edited  by  Paul  Meyer  ;   1891. 
Histoire  des  dues  de  Normandie  et  des  rois  d'Angleterre,  edited  by  F.  Michel ; 

1840. 
Jocelyn  of  Brakelond,  Chronica  de  rebus  gestis  Samsonis  Abbatis  Monasterii 

Sancti  Edmundi,  edited  by  J.  G.  Rokewode  (Camden  Society)  ;  1840. 
Matthew  Paris,  Chronica  Majora,  edited  by  H.  R.  Luard  (Rolls  Series)  ; 

1872. 
Memorials  of  St.  Dunstan,  edited  by  WilHam  Stubbs  (Rolls  Series)  ;    1874. 
Ralph  of  Coggeshall,  Chronicon  Anglicanum,  edited  by  Joseph  Stevenson 

(Rolls  Series)  ;  1875. 

2  K 


514  BIBLIOGRAPHY 

Roger  of  Hoveden,   Chronica,  edited  by  William  Stubbs  (Rolls  Series)  ; 

1868-1871. 
Roger  of  Wendover,  Chronica  sive  Flores  Historiarum,  edited  by  H.  O. 

Coxe  (Eng.  Hist.  Society)  ;   1841. 
Walter  of  Coventry,  Memoriale,  edited  by  William  Stubbs  (Rolls  Series)  ; 

1872. 
Walter  of  Hemingburgh,  Chronicon  de  Gestis  Regum  Angliae,  edited  by 

H.  C.  Hamilton  (Eng.  Hist.  Society)  ;  1848-9. 
William  of  Malmesbury,  Gesta  Regum  Anglorum,  edited  by  William  Stubbs 

(Rolls  Series)  ;  1887-9. 


III.     COLLECTIONS   OF   STATUTES,    CHARTERS,    AND 
TREATIES. 

Statutes  of  the  Realm  (Record  Commission)  ;   1810-28. 

Statutes  at  Large. 

Die  Gesetze  der  Angelsachsen,  edited  by  F.  Liebermann  ;    1 898-1912. 

Acts  of  the  Parliament  of  Scotland  from  1124  to  1707,  edited  by  Thomas 

Thomson  and  Cosmo  Innes  ;  1814-75. 
Rotuli  Litter  arum  Clausarum  in   Turri  Londinensi  Asservata,   edited  by 

Thomas  Duffus  Hardy  (Record  Commission)  ;  1833. 
Rotuli  Litter  arum  Patentum  in  Turri  Londinensi  Asservata,  edited  by  T.  D. 

Hardy  (Record  Commission)  ;   1835. 
Rotuli  Chartarum  in  Turri  Londinensi  Asservata,  edited  by  T.  D.  Hardy 

(Record  Commission)  ;  1837. 
Rotuli  de  Oblatis  et  Finibus,  edited  by  T.  D.  Hardy  (Record  Commission)  ; 

1835-6. 
Rotuli  Parliamentorum  ;  1832. 

Rotuli  Hundredorum  (Record  Commission)  ;  1812-18. 
Testa  de  Neville  sive  Liber  Feodorum  (Record  Commission)  ;   1807. 
The  Red  Book  of  the  Exchequer,  edited  by  Hubert  Hall  (Rolls  Series)  ;    1896. 
Munimenta  Gildhallae  Londoniensis  :    Liber  Albus,  Liber  Custumarum  et 

Liber  Horn,  edited  by  H.  T.  Riley  (Rolls  Series)  ;   1859-62. 
Rymer,   Thomas,   Foedera,   Conventiones,   Litterae,   et  cujuscunque  generis 

acta  publica  ;    4th  edition  (Record  Commission)  ;    1816-69  (referred  to 

throughout  as  "  New  Rymer  "), 
Ancient  Charters,  Royal  and  Private,  edited  by  J.  H.  Round  (Pipe  Roll 

Society,  vol.  10)  ;   1888. 
D'Achery,  J.  L.,  Vetorum  Scriptorum  Spicilegium  ;  1655-77. 
Hemingi  Chartularum  Ecclesiae  Wigornensis,  edited  by  Thomas  Hearne  ; 

1723- 
Potthast,  A.,  Regesta  Pontificum  Romanorum  ;  1874-5. 
Teulet,  Alexandre,  Layettes  du  Trisor  des  Charles  ;   1863-1902. 
Stubbs,  William,  Select  Charters   and  other  Illustrations  of  English  Con- 
stitutional History  ;  7th  edition,  1890. 
Prothero,  G.  W.,  Select  Statutes  and  other  Constitutional  Documents  illus- 
trative of  the  reigns  of  Elizabeth  and  James  I.  ;   1894. 
Gardiner,  S.  R.,  The  Constitutional  Documents  of  the  Puritan  Revolution  ; 

1889. 
Birch,  W.  de  G.,  Historical  Charters  and  Constitutional  Documents  of  the 

City  of  London  ;   1887. 


BIBLIOGRAPHY  515 

IV.     COLLECTIONS  OF  PLEAS,  TRIALS,   AND  OTHER  RECORD 

EVIDENCE. 

Placitorum  Abbreviatio,  Richard  I.  to  Edward  II.  (Record  Commission)  ; 
1811. 

Bigelow,  M.  M.,  Placita  Anglo-Normannica  ;  1879. 

Bracton's  Note  Book  :    a  Collection  of  Cases,  edited  by  F.  W.  Maitland  ; 

1887. 
Howell,   T.   B    and  T.   J.,   Complete  Collection  of  State  Trials  ;     1809-28 

(referred  to  as  "  State  Trials  "). 

Pleas  of  the  Crown  for  the  Comity  of  Gloucester,  edited  by  F.  W.  Maitland  ; 
1884. 

Select  Pleas  of  the  Crown,  edited  by  F.  W.  Maitland  (Selden  Society)  ; 
1888. 

Select  Pleas  in  Manorial  and  other  Seignorial  Courts,  edited  by  F.  W.  Mait- 
land (Selden  Society)  ;  1889. 

Select  Pleas  of  the  Forest,  edited  by  G.  J.  Turner  (Selden  Society)  ;    1901. 

Select  Pleas,  Starrs,  and  other  Records  from  the  Rolls  of  the  Exchequer  of  the 
Jews,  edited  by  J.  M.  Rigg  (Selden  Society)  ;  1902. 

Year  Books  of  the  Reign  of  Edward  I.,  edited  by  A.  J.  Horwood  and  L.  O. 
Pike  (Rolls  Series)  ;   1863-1901. 

Year  Books  of  Edward  II.,  1307- 1309,  edited  by  F.  W.  Maitland  (Selden 
Society)  ;  1903, 

Great  Roll  of  the  Pipe  for  the  Twelfth  Year  of  Henry  II.  (Pipe  Roll  Society, 
vol.  9)  ;  1888. 

Madox,  Thomas,  History  and  Antiquities  of  the  Exchequer  of  the  Kings  of 
England  ;  2nd  edition,  1769  (referred  to  throughout  as  "  Madox  "). 

Madox,  Thomas,  Firma  Burgi  ',  1726. 

Madox,  Thomas,  Baronia  Anglica  ;  1741. 

V.     LEGAL   TREATISES— MEDIEVAL. 

Glanvill,  Ranulf,  Tractatus  de  Legibus  et  Consuetudinibus  Regni  Angliae. 

Richard,  son  of  Nigel,  De  necessariis  Observantibus  Scaccarii  Dialogus  (com- 
monly called  Dialogus  de  Scaccario),  edited  by  A.  Hughes,  C.  G.  Crump, 
and  C.  Johnson  ;  1902. 

Bracton,  Henry  de,  De  legibus  et  consuetudinibus  Angliae,  edited  by  Sir 
Travers  Twiss  (Rolls  Series)  ;   1878-83. 

Fleta,  Commentarius  Juris  Anglicani  ;  edition  of  1647. 

Littleton,  Thomas,  Treatise  of  Tenures  \  edition  of  1841. 

VI.     LEGAL   TREATISES— MODERN. 

Anson,  Sir  W.  R.,  The  Law  and  Custom  of  the  Constitution  ;    2nd  edition, 

1892. 
Blackstone,  Sir  William,  Commentaries  on  the  Laws  of  England  ;    edition 

of  1826. 
Coke,  Sir  Edward,  Institutes  of  the  Laws  of  England  ;    17th  edition,  1817. 

(The  First  Institute  is  generally  referred  to  as  "  Coke  on  Littleton.") 
Encyclopaedia  of  the  Laws  of  England,  edited  by  A.  W.  Renton  ;    1897-8^ 
Hale,  Sir  Matthew,  Historia  Placitorum  Coronae  ;  1 736. 
Jenks,  Edward,  Modern  Land  Law  ;  1899. 

2K2 


5i6  BIBLIOGRAPHY 

Manwood,  John,  A  Treatise  and  Discourse  of  the  Laws  of  the  Forest ;  1598. 
Stephen,  H.  J.,  Commentaries  on  the  Laws  of  England ;  13th  edition,  1899. 
Thayer,  J.  B.,  A  Preliminary  Treatise  on  Evidence  at  the  Common  Law  ; 


VII.     LEGAL   AND   CONSTITUTIONAL   HISTORIES. 

Bigelow,  M.  M.,  History  of  Procedure  in  England  ;  1880. 

Brunner,  Heinrich,  Die  Entstehung  der  Schwurgerichte  ;  1871. 

Creasy,  Edward,  Progress  of  the  English  Constitution  ;  1874. 

Gneist,   Rudolf,    The  History  of  the  English  Constitution,   translated   by 

P.  A.  Ash  worth  ;  edition  of  1891. 
Gneist,  Rudolf,  The  English  Parliament  in  its  Transformations  through  a 

Thousand  Years,  translated  by  A.  H.  Keane  ;  1887. 
Holdsworth,  W.  S.,  A  History  of  English  Law,  vol.  i  ;  1903. 
Medley,  D.  ].,  A  Student's  Manual  of  English  Constitutional  History  ;   2nd 

edition,  1898. 
Moore,  S.  A.  and  H.  S.,  The  History  and  Law  of  Fisheries  ;    1903. 
Pollock,  Sir  F,,  and  Maitland,  F.  W.,  The  History  of  English  Law  before 

the  time  of  Edward  I.  ;    ist  edition,  1895  (referred  to  throughout  as 

"  Pollock  and  Maitland  "). 

Pike,  L.  O.,  A  Constitutional  History  of  the  House  of  Lords,  from  original 

sources  ;  1894. 
Reeves,  John,  History  of  English  Law  ;  3rd  edition,  1783-4. 
Stephen,  Sir  J.  F.,  A  History  of  the  Criminal  Law  in  England ;  1893. 
Stubbs,  William,  The  Constitutional  History  of  England  in  its  Origin  and 

Development :    (a)  vol.  i,  6th  edition,  1897  ;    (&)  vol.  2,  4th  edition, 

1894  ;   (c)  vol.  3,  5th  edition,  1896. 
Taswell-Langmead,  T.  P.,  English  Constitutional  History  from  the  Teutonic 

Conquest  to  the  Present  Time  ;  5th  edition,  1896. 
Taylor,  Hannis,  The  Origin  and  Growth  of  the  English  Constitution  ;    1898. 

VIII.     GENERAL   HISTORIES. 

Brady,  Robert,  Complete  History  of  England  ;  1685. 

Care,  Henry,  English  Liberties  in  the  Freeborn  Subjects'  Inheritance  ;    17 19. 

Green,  J.  R.,  A  Short  History  of  the  English  People  ;  edition  of  1875. 

Henry,  Robert,  History  of  Great  Britain  ;  6th  edition,  1806. 

Lingard,  John^  A  History  of  England  to  1688  ;  1819-30. 

Mackintosh,  James,  History  of  England;  edition  of  1853. 

Smith,  Gold  win,  The  United  Kingdom  :  a  Political  History  ;   1899. 

Tyrrell,  James,  History  of  England,  1697-1704. 

IX.     HISTORIES   OF   SPECIAL   PERIODS. 

Bateson,  Mary,  Mediaeval  England  (Story  of  the  Nations  Series)  ;   1903. 

Freeman,  E.  A.,  The  Norman  Conquest  of  England  ;  1870-9. 

Freeman,  E.  A.,  The  Reign  of  William  Rufus  ;  1882. 

Gardiner,  S.  R.,  History  of  England  from  the  Accession  of  James  I.  to  the 

Outbreak  of  the  Civil  War  ;  1883-4. 
Hallam,  Henry,  View  of  the  State  of  Europe  during  the  Middle  Ages ;    7th 

edition,  1837. 


BIBLIOGRAPHY  517 

Kemble,  J.  M.,  Saxons  in  England  ;  1849. 

Norgate,  Kate,  England  under  Angevin  Kings  ;  1887. 

Norgate,  Kate,  John  Lackland  ;  1902. 

Norgate,  Kate,  The  Minority  of  Henry  III.  ;  191 2. 

Pearson,  Charles,  A  History  of  England  during  the  Early  and  Middle  Ages  ; 

1867. 
Petit-Dutaillis,  Charles,  ^tude  sur  la  vie  et  la  regne  de  Louis  VIII.  ;    1894. 
Powicke,  F.  M.,  The  Loss  of  Normandy  ',  191 3. 

Prothero,  G.  W.,  The  Life  of  Simon  de  Montfort,  Earl  of  Leicester  ;    1877. 
Ramsay,  Sir  J.  H.,  The  Foundations  of  England  ;  1898. 
Ramsay,  Sir  J.  H.,  The  Angevin  Empire  ;  1903. 


X.     MISCELLANEOUS. 

Adams,  G.  B.,  The  Origin  of  the  English  Constitution  ;  191 2. 

Brady,  Robert,  A  Full  and  Clear  Answer  ;  1683. 

Boutmy,  fimile,  Etudes  de  Droit  Constitutionnel ;  1885. 

Burke,  Edmund,  Works  ;  edition  of  1837, 

Chadwick,  H.  Munro,  Studies  on  Anglo-Saxon  Institutions  ;  1905. 

Dowell,  Stephen,  History  of  Taxation  and  Taxes  in  England  ;  1884. 

Gross,   Charles,   Preface  to   Select  Cases  from  the  Coroners'  Rolls  (Selden 

Society)  ;  1896. 
Hall,  Hubert,  History  of  the  Customs  Revenue  in  England  ;  1885. 
Harcourt,  L.  W,  V,,  His  Grace  the  Steward  and  Trial  of  Peers  ;  1907. 
Hearnshaw,  F.  J,  C,  Leet  Jurisdiction  in  England  ;  1908. 
Lapsley,  G.  T.,  The  County  Palatine  of  Durham  ;  1900. 
Luard,  H.  R.,  Preface  to  vol.  2  of  Matthew  Paris,  Chronica  Majora  (Rolls 

Series)  ;  1872. 
Luchaire,  Achille,  Communes  Frangaises ;  1890. 
Luffman,  John,  Charters  of  London  ;  1793. 
Neilson,  George,  Trial  by  Combat ;  1890. 
Noorthouck,  John,  A  New  History  of  London  ;  1773. 
Macy,  J.,  The  English  Constitution  ;  a  Commentary  on  its  nature  and  growth  ', 

1897. 
Maitland,  F.  W.,  Township  and  Borough  ;  1898. 
Maitland,  F.  W.,  in  Social  England,  edited  by  Henry  Duff  Trail,  vol.  i  ; 

ist  edition,  1893. 
Maitland,  F.  W.,  Preface  to  Select  Pleas  of  the  Crown  (Selden  Society)  ; 

1888. 
Maitland,  F.  W.,  Preface  to  Select  Pleas  in  Manorial  and  other  Seignorial 

Courts  (Selden  Society)  ;  1889. 
Maitland,  F.  W.,  Preface  to  The  Mirror  of  Justices  (Selden  Society)  ;    1895. 
Maitland,  F.  W.,  Collected  Papers,  3  vols.  ;  191 1. 
Maitland,  F.  W.,  Equity  ;  1909. 
Orpen,  G.  H.,  Ireland  under  the  Normans  ;  1911. 

Petit-Dutaillis,  Charles,  Studies  and  Notes  Supplementary  to  Stubbs'  Con- 
stitutional History,  translated  by  W.  E.  Rhodes  ;  1908. 
Pollock,  Sir  F.,  Essays  in  Jurisprudence  and  Ethics  ;  1894. 
Poole,  R.  L.,  The  Exchequer  in  the  Twelfth  Century ;  1912. 


5i8  BIBLIOGRAPHY 

Rigg,  J.  M.,  Preface  to  Select  Pleas,  Starrs,  and  other  Records  from  the  Rolls 
of  the  Exchequer  of  the  Jews  (Selden  Society)  ;  1902. 

Rossler,  Oskar,  Kaiserin  Mathilde  und  das  Zeitalter  der  Anarchie  in  Eng- 
land ;  1897. 

Round,  J.  H.,  editorial  notes  to  Ancient  Charters,  Royal  and  Private  (Pipe 
Roll  Society,  vol.  10)  ;  1888. 

Round,  J.  H.,  Geoffrey  de  Mandeville  :    a  Study  of  the  Anarchy  ;    1892. 

Round,  J.  H.,  Feudal  England  :  Historical  Studies  of  the  Eleventh  and 
Twelfth  Centuries  ;  1895. 

Round,  J.  H.,  The  Commune  of  London  and  other  Studies  ;  1899. 

Round,  J.  H.,  Peerage  and  Pedigree  ;  19 10. 

Round,  J.  H.,  The  Kings'  Serjeants  and  Officers  of  State  ;  191 1. 

Seebohm,  Frederic,  The  English  Village  Community  :  an  Essay  on  Economic 
History  ;  1883. 

Stubbs,  William,  Preface  to  Walter  of  Coventry,  Memoriale  (Rolls  Series)  ; 
1972. 

Turner,  G.  J.,  Preface  to  Select  Pleas  of  the  Forest  (Selden  Society)  ;    1901. 

VinogradofE,  Paul,  Villainage  in  England  :  Essays  in  English  Mediaeval 
History  ;  1892. 

Vinogradoff,  Paul,  The  Growth  of  the  Manor;   1905. 

Vinogradoff,  Paul,  English  Society  in  the  Eleventh  Century  ;  1908. 

XI.     REPORTS,    BIBLIOGRAPHIES,    AND   DICTIONARIES. 

Reports  from  the  Lords'  Committee  appointed  to  search  the  Journals  of  the 
House,  Rolls  of  Parliament,  and  other  Records  for  all  matters  touching 
the  Dignity  of  a  Peer  ;  ist  Report,  1820. 

Reports  from  the  Select  Committee  appointed  to  inquire  into  the  state  of  the 
Public  Records  of  the  Kingdom  (Record  Commission)  ;  1900. 

Report  on  Manuscripts  in  Various  Collections  (Historical  Manuscripts  Com- 
mission) ;  1 90 1. 

Gross,  Charles,  The  Sources  and  Literature  of  English  History  ;  1900. 

Watt,  Robert,  Bibliotheca  Britannica  ;  1824. 

Lowndes,   W.   T.,   The    Bibliographer's    Manual  of   English   Literature ; 

1857-64. 
Dictionary  of  National  Biography,  edited  by  Leslie  Stephen  and  Sidney 

Lee  ;  1885-1900. 


INDEX    OF   STATUTES. 


20  Henry  III. 

PAGE 

c.  6,     -        63,  213. 

c.  7,     -         -    64  n. 

c.  8,     -         -    64  n. 

c.  9,     -         -  432  n. 

c.  11,  210  n.,  423  n. 

52  Henry  III. 

c.  15,  -         -  223  n. 

c.  16,     64  n.,    211, 

275  n. 

c.  29,  -         -  355  n. 

3  Edward  I. 

c.  1,     -         -  311  n. 

c.  6,     -         -      293. 

c.  7.     -         -  332  n. 

c.  10,  -         -      316. 

c.  11.  -         -      365. 

c.  12,  -   341,  375  n. 

c.  21,  -         -      209. 

c.   32,   330.   332  n.. 

335  n. 

c.  36,  -         -       66. 

c.  48,  -         -      211. 

4  Edward  I. 

(Rageman),     -  281  n. 

6  Edward  I. 

c.  4,     -     55,  219  n. 

c.  5,     -         -     209. 

c.  9,    364  n.,  365  n. 

7  Edward  I. 

-  150  n. 

13  Edward  I. 

c.  5,     -         -  276  n. 

c.  12,  -         -  365  n. 

c.  13,  -         -  309  n. 

c.  29,  361  n.,  365  n. 

c.  30,  -  277  n.,  283. 

c.  39,  -         -     281. 

c.  47,  210  n.,  304  n. 

18  Edward  I. 

-  150  n. 

27  Edward  I. 

c.  3,  281. 

28  Edward  I. 

c.  4,     -         -  268  n. 

c.  5,     -         -  267  n. 

c.  7,     -         -  315  n. 

c.  12,  -         -      223. 

c.  14,  -         -      319. 

Stat.  3,  c.  13,  311  n. 

Statutes  of  uncertain  date  : 

Statute  of 

Jewry,  -      229,  231. 

Praerogativa  Regis,  339  n. 

Consuetudines    et    Assisae    de 

foresta, 

-     430. 

1  Edward  III.  stat.  2,  c.    1,  438  n. 

c.  13,4130. 
c.  17,  3090. 

2  Edward  III.  c.  2,     -         -  281  n. 

c.  9,    400  n.,  406  n. 
c.  11,  -        -  263  n. 

4  Edward  III.  c.  15,  -         -      320. 

5  Edward  III.  c.  9,     -         -  380  n. 
9  Edward  III.  c.  1,     -         -  407  n. 

14  Edward  III.  stat.  1,  c.  9,      320. 

c.  21,  400  n. 

stat.  2,         -      238. 

stat.  4,  c.  4,       212. 

c.  5,       212. 

25  Edward  III.  stat.  3,  c.  4,       344. 

stat.  4,  c.  7,  407  n. 

stat.  5,  c.  4,  380-1  n. 

c.  11,  66. 

27  Edward  III.  stat.  2,  c.  8,    378  n. 

28  Edward  III.  c.  13,  -         -  378  n. 

37  Edward  III.  c.  9,     -         -  364  n. 

c.  18,  -         -  381  n. 

38  Edward  III.  c.  3,  -  -  381  n. 
42  Edward  III.  c.  1,     -  159,  364  n. 

c.  3,     -        -  381  n. 

2  Richard  II.  stat.  1,  c.  1,  407  n. 

6  Richard  II.  c.  5,  •    -  284  n. 

c.  6,  -    -  453  n. 

11  Richard  II.  c.  7,  -    -  407  n. 

c.  11,  -         -  284  n. 

17  Richard  II.    c.  6,     -         -  381  n. 

c.  9,     -         *  345  n. 

I  Henry  IV.      c.  14,  -         -  366  n. 

4  Henry  IV.      c.  5,     -         -  320  n. 

c.  11,  -         -  345  n. 

5  Henry  IV.      c.  10,  -         -  315  n. 
I  Edward  IV.  c.  2,     -         -  310  n. 

12  Edward  IV.  c.  7,     -         -  345  n. 
I  Richard  III.  c.  8,     -        356-7  n. 

3  Henry  VII.  c.  1  (s.  11),  -  366  n. 
32  Henry  VIII.  c.  46,  -         -      211. 

I  Edward  VI.  c.  4,     -         -      413. 

3  Charles  I.  c.  i,  333,  381  n.,  394. 
16  Charles  I.  c.  16,  430  n.,  438. 
12  Charles  II.     c.  24,  55,  211,  331  n. 


520 


INDEX  OF  STATUTES 


13  Charles  II.  c.  8,  331  n.,  335  n. 
12  George  III.  c.  20,  -  -  342  n. 
54  George  III.    c.  145,  -  342  n. 

57  George  III.  c.  61,  -  -  43011. 
59  George  III.  c.  46,  -  362  n.,  367. 
7  and  8  George  IV.,  c.  28,  -  342  n. 
3  and  4  William  IV.  c.  27,  -  272  n. 
c.  106  (s.  10),  342  n. 


5  and  6  William  IV.  c.  76  (s.  14), 
407  n. 

14  and  15  Victoria,  c.  42,  -  431  n 

15  and  16  Victoria,  c.  76,  -  371  n. 
33  and  34  Victoria,  c.  14,  -  411. 

c.  23,  -  342  n. 

50  and  51  Victoria,  c.  .35,  -  306  n. 


INDEX. 


Abbeys     (rights    of    founders    of), 

433-5.  451- 
Advowson,     276,     434.     (See    also 

Presentment.) 
Aesop,  4. 
Agistors,  419. 
Aids  (feudal),  59,  65-7,  232-4,  248, 

256-60,  261. 
Aids  (general),  234-9, 
Alexander  II.  (King  of  Scots),  213, 

459,  461-3- 
Aliens.     (See  Foreigners.) 
Allegiance,  409,  410-11. 
Amercements,     71,      118,     284-99, 

453-6- 
Anglo-Saxon  period,  4-5,  6,  8. 
Anselm,  17. 
Anson,    Sir    William    R.,     107  n., 

249  n.,  253  n. 
Appeal  (to  a  higher  court),  8,  12. 
Appeal   (or  accusation),   89,   135-6, 

316,  360.  365-7,  451-3. 
Arbitrary  imprisonment.     (See  Im- 
prisonment.) 
Archbishops.     (See  Dunstan,   Lan- 

franc,   Anselm,   Becket,   Hubert 

Walter,  Stephen  Langton.) 
Aristotle,  5. 
Arthur  (John's  nephew),  188,  207, 

442,  461  n. 
Arthur  (King),  24. 
Articles  of  the  Barons  ;    impressed 

with  John's  seal,  37-8. 
relation  to  schedule  of  27  April, 

1215,  37. 
relation  to  "  unknown  charter," 

175- 
relation  to  Magna  Carta,  37,  39, 

41,  42  n.,   196,   198,   236,   248, 

282-3,  308,  382,  449,  451,  454, 

469,  477- 
leave    some    points    undecided, 

38-9. 
selfish  in  motive,  119. 
omits  provisions  of  Charter,  129- 

130,  191,  248,  451. 


history  of  MS.  of,  170-1. 

as  affecting  the  Church,  191. 

on  relief,  198. 

on  wardship,  213. 

on  rights  of  London,  234,  236. 

on  tallage,  236. 

on  petty  assizes,  282-3. 

on  coroners,  308. 

on  judgment  of  peers,  377,  382, 

449.  458- 

on  estates  unjustly  disseised,  383, 
449. 

on  unjust  fines,  454-5. 

on  rights  of  Welshmen,  458. 

on  rights  of  King  of  Scots,  462  n. 

on  "  the  form  of  security,"  468  n. 

text  of,  487-493. 
Articuli  super  Cartas,  223,  319. 
Ashford  v.  Thornton,  366-7. 
Assize  (various  meanings  of),  272  n. 
Assize  of  Arms,  12. 
Assize  of  Clarendon,  250  n.,  340. 

on  ordeal,  60,  373. 

on  Crown  pleas,  88,  339. 

on  jury  of  accusation,  135. 

on  chattels  of  felons,  339,  340. 

article  4  of,  373. 

article  5  of,  339. 
Assize  of  Measures,  316  n.,  356-8. 
Assize     of     Northampton,     271  n., 
278  n. 

on  Crown  pleas,  88. 

on  jury  of  accusation,  135,  339. 

on  wardship,  206. 

on  mort  d' ancestor,  275. 

on  powers  of  castellans,  315. 

article  4  of,  206,  275,  278  n. 

article  12  of,  315. 
Assize  of  Wine,  356-8. 
Assize  of  Woodstock,  286  n.,  415-6, 

418,  426,  427  n,,  428. 
Assize  (Grand),  90,  137,  272-6,  353. 
Assizes  (Petty),  90-2,  137-8,  269-83, 
347.     (See      also     Justice      of 
Assize.) 
Attainder,  60,  342. 


522 


INDEX 


Bailiffs.  304,  316-7,  319,  369-75- 
definition  of,  316-7. 
duties  of,  369-75. 
abuses  by,  329,  369,  431. 
type  of  men  to  be  appointed,  431. 
Baronia,  meanings  of,  200,  251  n. 
Barons  (legal  position  of),  85,  130-1, 
196,  200,  251. 
amercement  of,  295-8. 
Barons  (minor),  251-3. 
Barons  (under  John  and  his  son), 
their  motives,  49,  51,  116-7,  119. 
their  grievances,  48-92,  389. 
their  policy,  51,  67-8,  88,  120,  389. 
their  factions,  189. 
Barons'  War  (against  Henry  III.), 

142-3,  405. 
Barony,  200.     (See  also  Honour.) 
Barrington    (Daines),    179,    208  n., 

217. 
Bateson,    Miss    Mary,    56,    241  n., 

360  n. 
Battle.     (See  Trial  by  combat.) 
Bee,  Abbey  of,  17. 
Becket  (Thomas  a),  13,  192-3,  250. 
Bemont,  Charles,  177,  180. 
Bench.     (See    King's    Bench    and 

Common  Pleas.) 
Benefit  of  clergy.     (See  Clergy.) 
Bigelow,     M.    M.,    268  n.,     349  n., 

370  n.,  377  n..  379  n. 
Bishops. 

as  holders  of  baronies,  17,  62,  68, 

202,  211. 
election  of,  17-19,  141,  194,  213-4. 
wardship   over    their    lands,    62, 

97-8,  103,  192-3,  211-2,  434. 
liable  for  scutage,  70. 
not  for  relief,  202-3,  211-2, 
Blackstone,  Sir  William. 

on  the  sensation  caused  by  Char- 
ter of  Henry  I.,  28  n. 
on  the  barons'  diffidatio,  34. 
compares    John's    Charter    with 

Articuli,  39. 
on  forest  clauses  in  John's  char- 
ter, 44. 
on  antecedents  of  Charter,  47. 
on  tenure,  53. 

on  feudal  incidents,  59  n.,  64. 
on  nature  of  Magna  Carta,   iii, 

113- 
on  loss  of  John's  seal,  144  n. 
on  different  versions  of  Charter, 
155  n.,  168,  171  n.,  210  n.,  278, 
386  n. 
his  book,  176,  179. 
on  estovers,  219  n. 
on  justices  of  assize,  271  n.,  278. 
on  c.  33,  344  n. 


on  c.  39,  376  n.,  386  n. 

on  feudal  appeal,  360  n. 

on  forest  courts,  430. 

on  executors  of  charter,  469  n. 
Blench  tenure  (in  Scotland),  56  n. 
Bloodfeud,  284-5. 
Boroughs,  234-48. 

monopoly  of,  357. 

privileges  of,   240-1,  357,  404-7. 
(See  also  under  Firma.) 
Bot,  285. 

Boutmy,  fimile,  106. 
Bouvine  (battle  of),  30. 
Bracton,  208,  214,  219  n.,  230,  293, 
297»   329,   340.   360  n.,   364  n., 
413  n.,  452  n. 
Breaute,  Falkes  de,  446. 
Bridges,  obligation  to  repair,  299- 

304- 
Brewer,  William,  153. 
Burgage  tenure,  57,  62,  367-9. 
Burgess,     115,     213-4.     (See     also 

Merchant.) 
Burgh,  Hubert  de. 

at  Runnymede,  36.        I 
becomes  Justiciar,  42. 

Canonical  election,  18,  25,  32.     (See 

also  Bishops.) 
Canute  (King),  6,  14. 
Capitulary  of  Kiersey,  59. 
Carta  de  foresta.     (See  Forest.) 
Cartae  (of  1166),  12. 
Castellans.     (See  Constables.) 
Castle-guard  (tenure  of),  333-4. 
Castles  (private),  218,  442. 
Castles  (royal),  226-7,  333-4- 
Central    government,    problem    of, 

13-16. 
Champions  (in  duellum),  451. 

King's,  56. 
Chancery,  11,  89,  342. 

Court  of,  264-5,  410. 
Charter,  John's  Great. 

date  when  sealed,  37-41. 

historical  antecedents  of,  3-5,  48- 
92. 

its  prototypes,  93-104. 

historical  sequel  to,  139-64. 

form  of,  104-9. 

contents  of,  109-20. 

characteristics  of,  109-20. 

how    far    a    baronial    manifests, 
1 1 3-6. 

its  value,  120-9. 

its  defects,  129-31. 

its     traditional     interpretations, 
132-3- 

ho.w^    far     declaratory,      11 1-2, 
310-27  345-<^. 


INDEX 


523 


Charter,  John's  Gredit.—conid. 
relations  to  Henry  II. 's  reforms. 

1 1 1-2,  270-8. 
how  far  reactionary,  112-3.     ' 
its  practical  nature,  120,  131  n., 

376. 
attitude     towards     Church    and 

clergy,  116,  190-4,  408-11,  434. 
towards    boroughs    and    traders, 

42,  117,  234-9,  240-8,  398-407- 
towards  tenants  of  mesne  lords, 

1 16-7,  255-60,  41 1-4,  463-5. 
towards  villeins,  113,  118-9. 
towards  lower  classes  generally, 

113-4,  118. 
its  sanction,  115-6,  129-31,  465- 

70. 
variations  from  articles  of  Barons, 

39,   116-7,  130,  191,  234,  236, 

248,  282-3,  299.  308,  451,  458-9. 
exaggerated  estimates  of,  120-3. 
four  copies  of,  41. 
manuscripts  of,  165-75. 
restored   by    Prince   Louis,    146. 

(See  also  Table  of  Contents.) 
Charter,    the   so-called    "  unknown 

charter   of    John."     (See    Un- 
known.) 
Charter  of  Henry  I.  ;    granting  of, 

97- 
exhibited  by  Langton,  28,  32. 
Blackstone  on,  28  n.,  48. 
a    model    for   Magna    Carta,    32, 

95- 

its  general  tenor,  97. 

its  chief  provisions,  97-101. 

on  rights  of  church,  203. 

on  marriage,  98. 

on  wardships,  98,  203,  206. 

on  reliefs,  197,  203. 

on  amercements,  286. 

on  forests,  424. 

on  rights  of  sub -tenants,  464. 

text  of,  481. 
Charter  of  Henry  II.,  loi. 

text  of,  485. 
Charter,   Henry  III.'s  first  reissue 
(1216),  139-44- 

its    additions,    204,    218,    223  n., 

434- 
its  omissions,  141-4,  228,  231,  233, 

236,  255,  258. 
its  respiting  clause,  143. 
on  homage,  204. 
on  wardship,  204,  212,  434. 
on  Church  and  clergy,  212,  434. 
on  marriage,  213. 
on  widows'  quarantine,  218. 
on  debtors,  223  n. 
on  Jews,  228,  231. 


on  aids  and  scutages,  233,  236, 

255,  258. 
on  merchants,  404. 
Charter,  Henry  III.'s  second  reissue, 

(1217),  145-52. 
its  omissions,  130,  151,  326. 
its  additions,    147-51,   216,   219, 

331,  440,  465. 
reactionary  clauses  of,  148-9. 
on  widows'  rights,  216,  219. 
on  scutages,  148-9,  233. 
on  petty  assizes,  277-8. 
on  villeins,  119,  292,  386. 
on  clergy,  299. 
on  Commune  Concilium,  130. 
on  purveyance,  331,  335. 
on  forests,  302. 
on  amercements,  299. 
Charter,  Henry  III.'s  third  reissue 

(1225),  152-7. 
the  final  form  of  Magna  Carta, 

155- 
price  paid  for,  154-5. 
text  of,  497-508. 
Charter  of  Stephen,  101-3,  188. 

text  of,  483-5. 
Chase,  distinguished  from  "  forest," 

422. 
Chatham,  Lord,  113. 
Chattels,  forfeit  of  felon's,  339. 

in  intestacy,  326-9. 
Church,  English. 

growth  of  conception  of  National 

Church,  1 91 -2. 
gains  power  under  Stephen,  18. 
Henry  II. 's  struggle  with,  13. 
relations  to  State,  16,  17,  194,  324. 
relations  to  Rome,   16,   17,   194, 

408-9. 
freedom  of,  18,  32,  97,  102,  116, 

141,  191-4. 
national  character  of,  192. 
question  of  investitures,  17. 
influence  upon  the  Great  Charter, 

191,  326-9,  408. 
relations  to  Crown,  96,  194,  408. 
relations  to  John,  32,  116. 
John's  charter  to,  32. 
relations  to  barons,  50. 
its  control  of  wills  and  property 

of  intestates,  326-9. 
canonical  election.    (See  Bishops.) 
(See  also  Clergy.) 
Cigogne,  Engelard  de,  417  n.,  444-7. 
Clarendon.      (See    Constitutions    of 

and  Assize  of.) 
Clergy,  amercement  of,  298-9. 
their  right  to  go  to  Rome,  407-11. 
"  benefit  of  clergy,"  18,  214  n. 
Cnut.     (See  Canute.) 


524 


INDEX 


Coinage,  private,  8. 
Coke  (Chief  Justice). 

on  tenures,  54,  57  n. 

on  primer  seisin,  65  n. 

on  Magna  Carta,   113,   133,   178, 
181,  190,  464. 

on  c.  39,  381,  385,  386. 

on  c.  40,  398. 

on  c.  54,  453. 

on  villeins,  118,  287  n.,  386. 

on  Knights'  fees,  201. 

on  waste,  209  n.,  338. 

on  disparagement,  214. 

on  rights  of  widows,  217,  219. 

on  justices  of  assize,  280  n. 

on  attainder,  342. 

his  unhistorical  method,  178,  385. 
Combat.     (See  Trial  by  combat.) 
Comitatus.     (See  Shire,  Shire  Court, 

and  also  Earldom.) 
Commissions  of  Justices,  280-2. 
Comniittee  of  Executors.     (See  Exe- 
cutors.) 
Common  law,  growth  of,  12. 

courts  of,  263-9. 
Common  pleas,  90,  261-9. 

Court  of,  Ti,  90,  265-7. 
Commune,  116,  243-5,  471. 
Commune   Concilium,   231-40,    248- 

55. 

functions  of,  130-1,  163,  254-5. 

composition  of,  250-5. 
Commune  of  London.    {See  London.) 
Compurgation,  85,  370. 
Confirmatio  Cartarum,  69,  238. 
Constables,  different  uses  of  word, 

313-5- 
their  functions  and  powers,  314, 

329,  333- 
and  purveyance,  329-31. 
and  castle-guard,  333. 
Constitutions   of  Clarendon,  18-19, 

202  n.,  211,  298-9,  408. 
Contenement,  284. 

meaning  of,  293-4. 
Copyhold,  53. 
Coronation  oath,  95-6. 
Coroner,  16,  304,  315. 
his  functions,  315-6. 
Council  of  St.  Albans  (1213),  28,  432. 
Council  of  Oxford  (1213),  30. 
Councils,  Lateran.     (See  Lateran.) 
County.     (See    County    Court,    also 

Firma  Comitatus.) 
County  Court,  77,  81,  282-3. 

to    appoint    knights    to    reform 

abuses,  42,  439-40. 
to    appoint    knights  for   assizes, 
277-8. 
Courts,  three  rival  systems  of,  77-92. 


Courts,  Christian,  323-4. 

Courts,     local.     (See     County    and 

Hundred.) 
Courts,    royal.     (See    Curia    Regis, 
Chancery,    Common  pleas.   Ex- 
chequer, King's  Bench.) 
Criminal    law.     (See    Pleas    of   the 

Crown.) 
Crusaders,  449-50. 

effects  of  vow,  33,  449. 
Curia  Regis. 
appeals  to,  8. 
altered  by  Henry  I.,  9. 
under  Henry  II.,  11,  50. 
powers  of,  188-9,  262,  264,  388. 
relation    to    Witenagemot,    188, 
250. 

Danish  influence,  6. 
Darrein     presentment.     (See     Pre- 
sentment.) 
David  I.  (King  of  Scots),  460. 
Debtors,  223-5,  321-3. 

and  Court  of  Exchequer,  268. 
Diffidatio. 

nature  and  effects  of,  34. 

by  barons  on  5th  May,  12 15,  34. 
Disparagement,  212-3,  461. 
Disseisin,  119,  274-5,'  383,  386,  450. 
Disseisin    (Assize    of    Novel),    269, 

274-5.  277. 
Domesday  Book,  10. 
Dominus,  meaning  of,  187-9. 
Dower,  215-7,  230-1,  454. 
Duellum.     (See  Trial  by  combat.) 
Dunstan,  14,  95. 
Dymoke  (Family  of),  55. 

Earldormen,  8,  14. 

Earls,  amercement  of,  130,  295-8. 

definition  of,  201. 

relief  due  from,  196-202. 

members  of  Commune  Concilium, 
248-51. 

relation  to  county,  270  n. 
Earls  Palatine,  7,  15,  64  n. 
Edgar  (King),  14. 
Edward  Confessor,  6,  7,  14. 

his  laws  confirmed,  27,  32,  11 1-2. 
Edward  I. 

his  reforms,  159-64. 

his  attitude  to  the  Charter,  161 -4. 

his  Parliaments,  162-3. 

his   Inspeximus  of   the   Charter, 
168-9,  198  n.,  299  n. 

quarrels     with     Constable     and 
Marshal,  69,  261. 

relations  with  London,  405. 

his  influence  on  the  Constitution, 
162-4,  475- 


INDEX 


525 


Edward  II.,  406,  430,  437. 
Edward   III.,    238,   303,    332,    406, 

409,  438. 
Election,  meaning  of  word,  278. 

in  relation  to  kingship,  118-9. 

of  jurors,  277-8. 

of  knights  to  reform  abuses,  42, 
438-40. 

of  knights  to  hold  assizes,  278. 
England,  growth  of  a  united,  4-6. 
English  Church.     (See  Church.) 
English  law.     (See  Law.) 
English      Monarchy.     (See      Mon- 
archy.) 
Escheat,  59-61,  336-9,  41 1-3. 
Estovers,  definition  of,  218-9. 

widows'  rights  of,  218. 

of  firewood,  426. 
Exchequer,  under  Henry  I.,  9-10. 

Court  of,  263-5,  267-9. 
Executors  of  the  Charter,  465-77. 

references  to,  40,  42,  44. 

their  excesses,  44. 

their  local  agents,  440. 

their  powers,  449,  455,  465-77. 
Eyres.     (See  Justices  of  Eyre.) 

Falconry.     (See  Foivling.) 

Fee-farm,  55,  57,  368-9. 

Felony,  336-43- 

Feudal  aids.     (See  Aids.) 

Feudal  grievances,  58-92,   121. 

Feudal  incidents,  59-65.     (See  also 

Reliefs,     Escheats,     Wardships, 

Marriages,  Primer  Seisins,  and 

Fines  for  Alienations.) 
Feudal    jurisdictions.     (See    under 

Jurisdictions  and  under  Courts.) 
Feudal    obligations,    52-76,    116-7. 

(See    also    Services,    Incidents, 

and  Aids.) 
Feudal  services,  12,  52-3,  67-9,  199, 

260-1. 
Feudal  tenures.     (See  Tenures.) 
Feudahsm  in  England,  7-9,  52-3,  54, 

57- 
Fictions  (legal),  269  n. 
Fines,  454-6. 

differ  from  amercements,  292-3. 
Fines  for  alienations,  65. 
Firma  burgi.  241-2,  320,  445. 
Firma  comitates,  317-21. 
Fishing,  303-4,  343-6. 
Fitz-Aylwin,  Mayor  of  London,  34. 
Fitz-Peter,  Geoffrey,  29. 
Fitz-Walter,  Robert. 

escapes  from  John,  25. 

reinstated,  26. 

commands  barons'  army,  34. 

outlawed,  384. 


one  of  the  executors  of  Charter, 
469. 
Flambard,  Ralph. 

his  feudal  innovations,  9,  58,  203, 
206. 
Foreign  merchants. 

their  position  in  London,  247. 

favoured  by  Magna  Carta,  400-7. 
Foreign  service,  69,  260-1. 
Forest  Charters,  issued  in  121 7,  146. 

its  repudiation  feared,  155-6. 

provisions  of,  425,  426,  428,  430, 
436. 

text  of,  508-12. 
Forest  Courts,  420-2,  427. 
Foresters,  417-20,  428-30. 
Forests,  414-31,  435-40. 

protests  by  prelates  regarding,  43. 

text  of  protests,  496-7. 

boundaries  of,  156,  437. 
Fowling,  King's  rights  of,  299-304, 

435-8. 
Frankalmoin,  55,  298-9. 
Free  socage.     (See  Socage.) 
Freehold,  53-8. 

Freeman,  definition  of,  114-5,  195. 
287  n.,  299  n.,  386. 

rights  of,  284,  287-9,  334-5,  346-7. 
375  ff- 

obligations  of,  300. 
Fyrd,  12,  300. 

Godwin,  14. 

Government,  ideal  form  of,  5. 

"  mixed,"  5. 

(See  also  Local  goi^ernnient.) 
Grand  Assize.     (See  Assize.) 
Grand  Jury.     (See  Jury.) 
Grand  Serjeanty.     (See  Serjeanty.) 
Great  Charter.     (See  Charter.) 
Green,   John  Richard,  on  Richard 

I.'s  reign,  21. 
Grey,  John  de,  23. 
Gualo   (papal  legate),  46,  47,   139, 

144.  145- 

Guardian,    219.     (See    also    Ward- 
ship.) 

Guilds,  400,  404,  407. 

Habeas  corpus.     (See  Writ  of.) 
Harden       (Wilham),       Mayor      of 

London,  245  n.,  469. 
Harold,  King,  7. 
Hawking.     (See  Fowling.) 
Henry  I. 

his  character,  9. 

his  title,  96,  196. 

reforms,  9-10,  15. 

relations   with   church,    17,    192, 
203. 


526 


INDEX 


Henry  I. 

and  canonical  election,  i8. 

his  attitude  towards  the  forests, 

424. 
scutage  under,  70. 
charter  to  Jews,  227. 
charter  to  London,  241-2. 
organizes  Exchequer,  9. 
his    Charter    of    Liberties.     (See 

Charter.) 
Henry  II. 

his  character,  11. 

and  Becket,  19,  250. 

policy  in  regard  to  church,  18-19, 

211. 
military  reforms,  12. 
legal  reforms,  11-12,  88-92,  273, 

306,  347. 
administrative     reforms,     11 -12, 

19-20. 
his  new  legal  procedure,    11-12, 

88-92. 
opposes      hereditary      principle, 

15- 

discourages  trial  by  combat,  273, 

360-1. 
undermines  private  jurisdictions, 

12,  273,  347. 
takes  aids,  66. 
levies  scutages,  69-70. 
founder  of  trial  by  jury,   134-8, 

273- 
charter  to  London,  242-3. 
opens  royal  courts  to  freeholders, 

12,  77,  80-1,  87,  395. 
Henry  III. 

his  coronation,  139. 

his  minority,  143,  266. 

his  advisers  accept  the  Charter, 

47.  139. 

takes  aids,  66. 

levies  scutage,  143,  258. 

takes  fees  for  writs,  259,  397. 

his    attitude    to    Magna    Carta, 
153-9,  160. 

his  attitude  to  the  Jews,  228. 

protects  foreign  merchants,  405. 

his  alliance  with  Rome,  328  n. 

his  rights  of  fowling,  303. 

his  attitude  towards  the  forests, 
437-8. 

declared  of  age,  153. 

(See  also  under  Charter.) 
Honorius  III.,  153. 
Hostages,  25,  441-4,  458,  459. 
Hubert  de  Burgh.     (See  Burgh.) 
Hubert,  Walter  (Archbishop). 

his  reforms,  21,  307. 

his  testament,  324  n. 

his  death,  23. 


Hundred,  317-8. 
Court  of,  78-9. 

Imprisonment      (arbitrary),      133, 

401-2. 
Incidents.     (See  Feudal  incidents.) 
Indictment,  340-1. 
Innocent    III.    nominates   Stephen 
Langton,  23-4. 
releases     John's    subjects     from 

allegiance,  24,  25. 
excommunicates  John,  26. 
his  reconciliation  with  John,  26. 
appealed  to  by  malcontents,  33. 
supports  John,  33,  46,  462,  477. 
suggested    as    umpire  by   John, 

34- 

annuls  the  Great  Charter,  45. 

excommunicates  barons,  46. 

interferes  with  Scots  King,  462. 
Inquest  of  Service  (12 12),  24,  75-6. 
Inquest  of  Sheriffs.     (See  Sheriff.) 
Inquisitio.     (See  Recognitio.) 
Interest,  223-5.     (See  also  Jews  and 

Usury.) 
Interregnum  (theory  of),  96. 
Investitures  (question  of),  17. 
Isabel,  Princess.     (See  Scotland.) 
Ivo,  Bishop  of  Chartres,  17. 

James  I.,  58  n.,  336. 

Jarls  (Danish),  15. 

Jews,  223-31,  378. 

Joan  (John's  natural  daughter),  25. 

John,  his  character,  48. 

his  bad  faith,  42-3. 

his  power,  24. 

his  policy,  21,  48,  50. 

his  incapacity,  22. 

his  title  to  the  Crown,  186-9. 

his  exactions,  22,  31,  49. 

his  straits  for  money,  32. 

his  levies  of  scutage,  31,  69-76, 

charters  to  English  Church,  32, 
33,  194,  211-2. 

charters   to   London,    34,    244-5, 

345- 
relations  with  his  barons,  24,  29, 

31.  34.  49. 
refuses  their  demands,  33. 
meets    barons    at    Runnymede, 

36-41. 
takes  Crusader's  vow,  33,  46. 
relations  with  English  Church,  23, 

24,  50,  212. 
relations  with  Rome,  23. 
the  quarrel,  24. 
the  reconciliation,  26,  50. 
his  surrender  to  Innocent,  26,  29, 

50. 


INDEX 


527 


John  asks  Innocent  to  annul  char- 
ter, 44. 
hangs  Welsh  hostages,  25,  442-3. 
loses  Normandy,  22. 
confiscates  church  property,  24. 
restores  it,  28. 
issues  writs  for  a  Council  in  Nov. 

1213,  29. 
and  county  representation,  29. 
his  death,  47. 
Judgment  (in  medieval  law),  84-6. 
Judgment  of  peers.     (See  Peers.) 
Jurisdiction,  royal,  80-1.     (See  also 

Courts.) 
Jurisdictions,  private,  78-80.     (See 

also  Courts.) 
Jury,  trial  by. 

relation  to  recognitio,  87,  135. 
relation  to  writ  de  odio,  89,  136, 

361-2. 
relation  to  Magna  Carta,  134-8. 
Jury   (of  accusation  or  presenting 

jury),  135-7. 
Jury  (Civil),  137-8. 
Jury  (Grand),  136. 
Jury  (Petty),  136-8,  360-1. 
Justice,    three    systems    of,    77-81. 
(See    also    Courts    and    Juris- 
dictions.) 
Justices  of  the  Peace,  16,  281. 
Justices,    itinerant    (or    of    Eyre), 

270-1. 
Justices  of  Assize,  270-83. 
commissions  of,  280-1. 

Kiersey,  capitulary  of,  59. 
King's  Bench,  11,  263-7. 
Knight's  fee,  199-200,  260. 
Knight's  service,  54,  199. 
Ky dells-     (See  Weirs.) 

Lanfranc,  17,  96. 
Langton.     (See  Stephen.) 
Lateran  Council  (1099),  17. 
Lateran  Council  (1215),  46,  341. 
Law  (lex),  technical  meaning  of,  84, 
369-70,       379-81.     (See      also 
Trial.) 
Leasehold,  53-6. 
Legal  fictions.     (See  Fictions.) 
Legal  procedure.     (See  Procedure.) 
Leofric,  14. 
Letters  testimonial,  41. 

text  of,  478  n. 
Llywelyn,  25,  458. 
I-ocal     government,     problem     of, 

13-16. 
London. 

receives  rebel  army,  35. 

accepts  Louis  as  King,  47. 


liable  to  tallage,  117,  234-9. 
granted  by  John  as  security,  42, 

477- 
John's  charters  to,  ^^4,  244-7,  345- 
taxation  of,  231-2,  234-9. 
privileges  of,  240-8,  345. 

Longchamp,  51. 

Lords  (House  of),  392. 

Louis,  son  of  French  king,  46,  140, 

145- 
confirms  Magna  Carta,  47. 

Magna  Carta.     (See  Charter.) 
Manorial   courts,    77-80,    87.     (See 

also  Courts  and  Jurisdictions.) 
Maritagium,  216-8,  454. 
Marriage,  feudal  incident  of,  62  3, 

212-4. 
Marshal    (William,    Earl   Marshal), 
32,  33.  35- 
mediator     between     King     and 

barons,  33,  35,  36,  476. 

acts  as  Regent,  139-41,  145,  255. 

Matilda    (daughter    of    Henry    I.). 

supplanted  by  Stephen,  lo-ii. 

her  prodigal  grants,  137. 

Merchants.     (See  Foreign  merchants, 

London,  and  Boroughs.) 
Ministerial   responsibility,    doctrine 

of,  129,  161-3,  433. 
Minorities,  rights  of,  254-5. 
Monarchy,  two  types  of,  4-5. 
Monarchy  (English), 
growth  of,  5-13. 
strong  under  Normans,  5. 
and  Angevins,  13. 
weak  under  Anglo-Saxon    kings, 

4-5.  13- 
Monopolies. 

attitude  of  Magna  Carta  towards, 

384. 
claimed    by    native    merchants, 

117.  398-407- 
Montfort,  Simon  de,  161 -2. 
M or td' ancestor,  269-70,  275-6,  283  n. 
Municipalities.     (See  Boroughs.) 

National  Church.     (See  Church.) 
National  unity  in  England,  5-6. 
Nicholas  (Papal  legate),  311. 
Norgate,  Miss  Kate. 

on  writs  of  November  121 3,  29. 

on  date  of  Magna  Carta,  41  n. 

on  John's  misconduct,  48  n. 

on  John's  levies  of  scutage,  74  n., 
7.5  n. 

on  privileges  of  London,  245. 

on  the  twenty-five  executors,  476. 

on  the  price  paid  for  the  charter 
of  1225,  154  n. 


528 


INDEX 


Norman  Conquest,  effects  of,  5. 
Novel  disseisin.     (See  Disseisin.) 

Oligarchic  elements  in  England,  4. 
Ordeal,  84-5,  136,  369-75. 
Original  writs.     (See  Writs.) 
Outlaws,  384-5. 

Pandulf  (Papal  legate),  26,  45. 
Papal  Bull,  annulling  Charter,  45-6. 
Papal  legates.    (See  Gualo,  Nicholas, 

Pandulf.) 
Parks,    distinguished   from   forests, 

422. 
Parliament. 

its  development,  162. 
functions  of,  162,  253-4. 
composition  of,  162. 
Parliamentary  taxation.     (See  Tax- 
ation.) 
Parliamentary  representation.    (See 

Representation.) 
Peasantry.     (See  Villeins.) 
Peers,  amercement  by,  130,  295-8, 

as  a  separate  class,  186  n. 
Peers,  judgment  of,  375,  377-9,  386- 

95. 
confused  with  jury  trial,  134  n. 
Peter  des  Roches  (Bishop  of  Win- 
chester),   30,   41,   45,   48.   255, 

389,  431- 
Peter  of  Wakefield,  26. 
Peter's  pence,  17. 
Petition  of  Barons   (1258),    198  n., 

214,  283  n.,  414,  435. 
Petty  Assizes.     (See  Assize.) 
Petty  Jury.     (See  Jury.) 
Petty  Serjeanty.     (See  Serjeanty.) 
Philip  (King  of  France),  26,  27,  30, 

46. 
Pipe  Rolls,  of  1 1 30,  9. 

revived  by  Henry  II.,  11. 
Pleas.  (See  Common  pleas.) 
Pleas  of  the  Crown,  88-92,   266-7, 

304-21.    - 
in  Scots  law,  306. 
Pleas  of  the  forest,  313-4. 
Popes.     (See   Honorius   and   Inno- 
cent.)   • 
Presentment    (darrein),    193,    269, 

276-7,  233- 
nature  of,  explained,  276. 
Primer  seisin,  63-5. 
Procedure  (legal),  81-6. 

Henry  II. 's  reforms,  86-92. 
Ptoof  (in  medieval  law),  84-6.     (See 

also  Trial.) 
Protests  by  the  prelates  in  John's 

favour,  43,  476. 
text  of,  496-7. 


Provisions  of  Oxford   (1258),    160, 

433- 
Purprestures,  425. 
Purveyance,  329-32,  334-6. 

Quarantine,  widow's,  218, 
Queen's  gold,  198. 

Recognitio    (principle    of),    28,    86, 

135-8. 
Regarders,  417-22. 
Relief   (feudal  incident  of),   59-61, 
203-5,  211-2. 
not  due  from  bishop-elect,  97-8, 

202-3. 
not  due  after  wardship,  203. 
definition    of    sums     due,     196- 
203. 
Representation,  parliamentary,  248- 

55- 
Responsibility.     (See  Ministerial.) 
Richard  I.,  51,  66,  73,  197,  243,  460. 

lessons  of  his  reign,  20-1. 
Richard  II.,  407. 
Roches  (Peter  des).     (See  Peter.) 
Roger,  bishop  of  Salisbury.  9. 
Rolls.     (See  Pipe  Rolls.) 
Royal    justice.     (See     Courts    and 

Jurisdiction.) 
Royal  writs.     (See  Writs.) 
Runnymede,  36-8,  44,  52,  479. 

Saladin  tithe,  20. 

Salisbury,  Roger,  bishop  of.     (See 

Roger.) 
Schedule   of   grievances    (27   April, 

1215),  33,  37,  38,  173. 
Scotland,     relations     to     England, 
459-63. 
kings  of.     (See  Alexander,  David, 

and  William.) 
Princesses  Margaret  and  Isabel, 
459. 
Scutage,  69-76,  231-4. 

grand  sergeanties  not  liable  for, 

55-6. 
in  charter  of  1215,  231-4,  248. 
in  charter  of  1217,  148-9. 
by  sub-tenants,  256. 
Scutum.     (See  Knight's  fee.) 
Seal  (king's  great),  143-4.  153- 
Seisin.     (See    Primer    Seisin    and 

Disseisin.) 
Serjeanty  (grand),  55-7,  64  n,,  199, 

261. 
Serjeanty  (petty),  56-7,  64  n.,  199, 

261,  367-8. 
Service.     (See  under  Feudal  service, 
Foreign   service,    and    Knight's 
service.) 


INDEX 


529 


Sheriff,  31 1-3,  431. 

history  of  the  office  of,  31 1-3. 
chief  magistrate  of  county,  311. 
his  powers,  16,  304-10. 
curtailed  by  the  charter,  304,  317, 

334. 
his  "  tourn,"  320-1. 
his  tyrannies,  15-16,  311,  320,  334. 
his  qualifications,  431-3. 
his  gradual  decline,  16,  312-3. 
forbidden   to   hold   pleas   of   the 

Crown,  304. 
in  America,  313. 
in  Scotland,  313. 
accountable  to  Exchequer,  9. 
under  William  I.,  15. 
under  Henry  II.,  15-16. 
Inquest  of,  16. 
Shire.     (See  County.) 
Socage,  54-5,  57,  66,  199,  261,  367-9. 
Statutes.     (See  separate   Index  of 

Statutes.) 
Stephen  (King). 

supplants  Matilda,  10,  loi. 
his  title,  102,  188. 
relations  with  Church,  18,  102. 
(See  also  Charters  of.) 
Stephen  Langton. 

nominated  by  Innocent,  23. 
received  by  John,  27. 
his  alliance  with  the  barons,  28. 
exhibits  charter  of  Henry  I.,  28, 

32. 
consolidates  the  opposition,  51. 
mediates     between     King     and 

barons,  29,  32,  33,  36,  38,  45. 
at  Runnymede,  36,  38. 
trusted  by  both  sides,  38-9,  43,  51, 

462  n. 
influence  on  Great  Charter,   39, 

191,  212. 
Tower  of  London  placed  in  his 

custody,  43. 
suspended  from  office,  45. 
goes  to  Rome  (1215),  45. 
asks  Henr^'  III.  to  confirm  the 

Charters,  153. 
cares    for    interests    of    English 

Church,  191,  212. 
Stubbs  (Bishop  William). 

on  Henry   I.'s  compromise  with 

Anselm,  18. 
on  the  coalition  of  John's  oppon- 
ents, 44. 
on  John's  submission  to  Innocent, 

51- 

on  scutage,  69-71. 

on  charter  of  Henry  I.,  97,  464. 

on  "  national  '*  character  of  Char- 
ter, 113,  ii7n.,  125. 


on     the     barons'     unselfishness, 
117  n.,  464. 

on    villeins    under    the    Charter, 
119  n. 

on  reissue  of  12 16,  140  n.,  143  n. 

on  treaty  of  Lambeth,  145. 

on  witnesses  to  the  Charter,  189. 

on  maritagium,  217  n. 

on  estovers,  219. 

on  constitution  of  London,  241. 

on  the  Common  Council,  252,  254. 

on  c.  24,  310. 

on  c.  45,  431. 

on  meaning  of  "  lex,"  370  n. 

on  judgment  of  peers,  390  n. 

on  meaning  of  "  warren,"  423. 

on  the  twenty-five  executors,  476. 
Succession,  intestate,  141-2,  326-9. 

testate,  321-6. 
Suit  and  service,  67-9. 
Suit  (or  forewitnesses),  84,  369-75. 
Swanimotes,  421. 
Synod  of  Whitby,  6. 

Tallage,  235-9. 

Taxation. 

common    Council's    rights    over, 

231-40. 
parliamentary,  238-9. 

Tenserie,  definition  of,  40  n. 

Tenure  by  barony,  54. 

Tenure  by  castle- ward,  57  n. 

Tenure  in  chivalry.  (See  Knight's 
service.) 

Tenures,  53-9.  (See  also  Burg- 
age, Fee-farm,  Frank  almoin. 
Knight's  service,  Serjeanty, 
Socage,  Villeinage,  also  under 
Freehold.) 

Tourn.     (See  Sheriff's  tourn.) 

Treason,  60,  337-9. 

Trial  (in  medieval  procedure),  83-6, 
136,  359,  369. 

Trial  by  combat,  89,  136-7,  272, 
360-7,  451-3- 

Trial  by  jury.     (See  Jury.) 

"  Unknown   charter  of  Liberties  " 
(so-called),  referred  to,  29. 
theories    as    to    its    nature    and 

origin,  171 -5. 
text  of,  485-6. 
Usury,  223-5.     (See  a^lso  Jews.) 

Verderers,  314,  418. 

Vesci,  Richard  de,  25,  26,  33,  384, 

443,  469. 
Vicecomes.     (See  Sheriff.) 
Villeinage,  54,  290,  386. 


530 


INDEX 


Villeins,  289-92. 
not  freemen,  11 8-9. 
methods  of  "  wasting,"  208  n. 
amercement,  of,  289-92. 
attitude  of  charter  to,  119,  335, 
386,  386  n. 

Wales,  25,  456-9. 

Wapentake,  78,  135,  317. 

Warden,  417.     (See  also  Constable 

and  Guardian.) 
Wardship,  61-2,  63. 

tenures  subject  to,  55,  57,  367-8. 

conditions  of,  204. 

attitude   of   charter   to,    205-12, 
367-9,  450. 

over  vacant  sees,  97-8,  21 1-2. 

over  abbeys,  433-5. 

prerogative      wardship,       368-9, 
450-1. 
Warrens,  meaning  of,  210  n.,  423. 

distinguished  from  forest,  423. 

charter  on,  438-440. 
Waste,  of  ward's  lands,  207-9. 

of  felon's  lands,  336-9. 

of  forests,  426-7. 
Wathng  Street,  6. 
Waynage,  291-2. 
Weirs,  343-6. 
Welshmen.     (See  Wales.) 
Wergeld,  285-6. 
Whitby,  Synod  of,  6. 


215-21,  230-1,  325. 


13-14. 


Widows'  rights, 
W^ilham  I.,  6. 

outline  of  reign,  6-9. 

his  policy  of  balancing,  7-8. 

relations  to  feudalism,  7. 

to  Domesday  Book,  10. 

local   government   under, 
15- 

relations  with  Rome,  17. 

his  innovations,  86. 

title  to  English  Crown,  7,  95-6. 

relations  with  Witenagemot,  7-8, 
14. 
William    II.,     relations    with    the 
Church,  17,  203. 

features  of  reign,  8-9. 
William  the  Lion,   King  of  Scots, 

460-3. 
Wills,  321-6. 
Witenagemot,  14. 

attitude  of  William  I.  to,  7-8. 

powers  of,  188-9. 
Wites,  285-6. 
Witnesses,  84. 
Writ    de    odio    et    atia,    89, 

.  361-5- 
Writ  ne  exeat  regno,  409-10. 
Writ  of  habeas  corpus,  362-3. 
Writ  of  entry,  354-5. 
Writ  of  right  347-9,  353-4- 
Writ  praecipe,  346-55. 
Writs  of  November  12 13,  29-30. 


136, 


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PRESS  NOTICES   OF  FIRST  EDITION 
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. 

"  A  book  remarkable  alike  for  its  solid  learning,  its  fertility  in  suggestion, 
and  its  characteristic  note  of  moderation  and  sweet  reasonableness.  .  .  . 
No  one  will  close  the  book  without  feeling  that  his  knowledge  of  Magna 
Carta  has  been  greatly  amplified  and  enriched.  .  .  .  One  of  the  most 
important  contributions  to  medieval  history  in  recent  years." — The  Times. 

"  Of  the  great  merit  and  value  of  the  present  essay  there  can,  we  think, 
be  little  doubt.  The  historical  and  juridical  methods  adopted  by  the 
author  are  sound  and  intelhgent,  and  naturally  in  striking  contrast  with 
those  of  earlier  commentators.  His  style  is  attractive  and  sufficiently 
concise,  whilst  his  equipment  for  such  a  formidable  task  is  very  consider- 
able. As  the  result  of  these  elaborate  studies,  we  have  an  entirely  new 
view  of  the  Great  Charter  in  its  legal  and  constitutional  aspects  and  political 
environment. ' ' — A  thenaeum. 

"  Mr.  McKechnie's  work  is  of  such  great  value  that  no  historian  can 
afford  to  neglect  its  clear  and  reasoned  statements  on  all  the  questions 
which  centre  round  the  scene  at  Runnymede,  and  on  the  economic  facts 
which  led  up  to,  and  away  from,  that  momentous  conference." — Spectator. 

"  Bears  with  it  the  collective  wisdom  of  all  the  commentaries,  ancient 
and  modern,  dispassionately  scrutinised  and  sifted  with  close  and  varied 
learning  on  medieval  institutions.  ...  It  is  a  great  theme,  and  to  say 
that  it  is  at  last  adequately  treated,  from  the  constitutional  side,  is  well 
merited  praise." — Juridical  Review. 

"  Dr.  McKechnie  has  placed  students  of  constitutional  law  and  history 
under  deep  obligations.  .  .  .  There  can  be  no  doubt  that  his  work  comes 
to  fill  a  long-felt  want  in  legal  and  historical  Uterature."— Om^/ooA  (New 
York). 

"  Few  more  readable  books — except  to  those  who  can  read  nothing 
but  fiction — have  ever  been  written." — Liberty  Review. 

"  Students  of  the  historical  development  of  the  law  of  the  British  Con- 
stitution owe  a  welcome  to  the  appearance  of  this  learned  treatise,  a  work 
which  brings  the  interpretation  of  a  prime  document  of  political  liberty 
abreast  of  recent  advances  in  knowledge  which,  in  legal  history  no  less 
than  in  other  departments  of  inquiry,  have  brought  in  new  views  of  old 
facts. ' ' — Scotsman. 

"  Dr.  McKechnie  has  given  very  satisfactory  explanations  of  most  of 
the  knotty  points  of  the  Charter,  and  we  may  specially  commend  the 
sanity  of  his  exposition  of  the  constitutional  clauses.  Altogether  his 
book  is  a  useful  and  solid  help  in  the  study  of  the  numerous  difficulties 
involved  in  the  text  of  the  Great  Charter." — Manchester  Guardian. 


PRESS  NOTICES   OF  FIRST  EDITION 

•'  One  of  the  most  important  contributions  to  English  diplomatics  that 
has  appeared  within  the  last  five  years." — Westminster  Review. 

"  It  has  already  won  its  place  as  the  standard  treatise  on  the  Great 
Charter." — Scottish  Law  Review.  ^, 

*'  Dr.  McKechnie  has  performed  a  real  and  needed  service  to  historical 
and  legal  scholarship.  The  manner  in  which  he  has  performed  his  task 
is  as  admirable  as  the  matter.  He  writes  in  a  clear  and  direct  style,  well 
adapted  to  his  subject.  The  book  is  printed  in  attractive  form." — Law 
Notes  (New  York). 

"  It  may  be  said  at  once  that  our  author  has  succeeded  in  giving  us  a 
very  sound  and  useful  commentary  instead  of  the  antiquated  ones  of 
Blackstone  and  of  Thomson.  .  .  .  His  book  is  sure  to  be  used  and  to 
last." — Professor  Vinogradoff  in  the  Law  Quarterly  Review. 

"  The  labor  of  anyone  who  comments  in  the  future  on  the  clauses  of 
the  Great  Charter  has  been  greatly  lightened  by  the  careful  and  learned 
work  of  Dr.  W.  S.  McKechnie." — Professor  G.  B.  Adams  of  Yale,  in  The 
Origin  of  the  English  Constitution. 

"  Of  permanent  value  to  students  of  EngUsh  constitutional  history." — 
Annual  Register. 

"  An  admirable  commentary  on  Magna  Carta." — H.  A.  L.  Fisher, 
Fellow  of  New  College,  Oxford,  in  an  editorial  note  to  Maitland's  Con- 
stitutional History  of  England. 

"  A  work  on  Magna  Carta  of  unparalleled  excellence  in  both  its  historical 
and  expository  matter." — Hon.  Fred.  A.  Baker  in  The  Gateway  (Michigan). 

"  We  question  whether  another  commentary  will  venture  to  attempt 
to  displace  this  one  until  some  generations  of  historical  students  have 
been  at  work  on  new  material.  .  .  .  Anyone  who  turns  to  these  pages 
for  help  in  particular  difficulties  will  find  enough  to  persuade  him  that 
he  had  better  read  every  section." — The  late  Miss  Mary  Bateson,  Fellow 
of  Newnham  College,  Cambridge,  in  Scot.  Hist.  Rev.  iii.  p.  229. 

"  Mr.  McKechnie  may  justly  claim  to  have  provided  us  with  a  most 
adequate  commentary  on  Magna  Carta." — H.  W.  C.  Davis,  Fellow  and 
Tutor  of  Balliol  College,  Oxford,  in  English  Historical  Review,  xxi.  p.  150. 

"  Im  ganzen  eine  Arbeit,  die  jeder  Erforscher  der  mittelalterlichen 
Rechts-  und  Verfassungsgeschichte  Englands  dankbar  brauchen  wird." — 
Professor  FeUx  Liebermann,  of  Berhn,  in  Historische  Vierteljahrschrift. 

"  C'est  un  livre  qu'il  faudra  consulter  pour  I'histoire  des  institutions 
politiques  et  admin istratives  de  I'Angleterre  au  xii®  et  au  xiii®  sidcle  ; 
il  a  sa  place  marquee  a  cote  de  Stubbs  dans  la  biblioth^que  des  erudits." — 
Professor  Charles  B6mont,  of  the  Sorbonne,  in  La  Revue  Historique, 


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McKechnie,  William  Sharp 
Magna  carta