PART I.

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MAGNA CARTA

A COMMENTARY ON THE GREAT CHARTER

OF KING JOHN

PUBLISHED BY

JAMES MACLEHOSE AND SONS, GLASGOW

=Publishers to the University.=

---

MACMILLAN AND CO., LTD., LONDON.

_New York_, _The Macmillan Co._

_London_, _Simpkin, Hamilton and Co._

_Cambridge_, _Macmillan and Bowes_.

_Edinburgh_, _Douglas and Foulis_.

_Sydney_, _Angus and Robertson_.

MCMV.

MAGNA CARTA

A COMMENTARY ON THE GREAT

CHARTER OF KING JOHN

WITH AN

HISTORICAL INTRODUCTION

BY

WILLIAM SHARP McKECHNIE

M.A., LL.B., D.PHIL.

LECTURER ON CONSTITUTIONAL LAW AND HISTORY IN THE UNIVERSITY OF GLASGOW

AUTHOR OF ‘THE STATE AND THE INDIVIDUAL; AN INTRODUCTION TO POLITICAL

SCIENCE’

GLASGOW

JAMES MACLEHOSE AND SONS

PUBLISHERS TO THE UNIVERSITY

1905

GLASGOW: PRINTED AT THE UNIVERSITY PRESS

BY ROBERT MACLEHOSE AND CO. LTD.

TO THE

MEMORY OF MY FATHER

WILLIAM McKECHNIE, M.D.

BORN 1ST APRIL, 1814

DIED 2ND SEPTEMBER, 1887

PREFACE

No Commentary upon Magna Carta has hitherto been written from the

standpoint of modern research. No serious attempt has yet been made to

supersede, or even adequately to supplement, the works of Coke and

Richard Thomson, published respectively in 1642 and 1829, and now

hopelessly out of date. This lack of enterprise may be due in part to a

natural reluctance to undertake so laborious a task, but seems also to

suggest tacit acquiescence in the opinion of Bishop Stubbs that no

separate commentary is required, since “the whole of the constitutional

history of England is little more than a commentary on Magna Carta.”

Yet, for that very reason the Great Charter is surely worthy to be made

the subject of special and detailed study, since few documents can

compete with it in the variety and interest of its contents, in the

vividness of its historical setting, or in the influence it has

exercised on the struggle for constitutional liberty. That this

conspicuous gap in our historical and legal literature should have

remained so long unfilled is the more remarkable in view of the great

advance, amounting almost to a revolution, which has been effected since

Coke and Thomson wrote. Within the last twenty years, in especial, a

wealth of new material has been explored with notable results.

Discoveries have been made, profoundly affecting our views of every

branch of law, every organ of government, and every aspect of social and

individual life in medieval England. Nothing, however, has hitherto been

done towards applying to the systematic elucidation of Magna Carta the

new stores of knowledge thus accumulated.

With this object in view, I have endeavoured, throughout several years

of hard, but congenial work, to collect, sift, and arrange the mass of

evidence, drawn from many scattered sources, capable of throwing light

upon John’s Great Charter. The results have now been condensed into the

Commentary which fills two thirds of the present volume. This attempt to

explain, point by point, the sixty-three chapters of Magna Carta,

embracing, as these do, every topic—legal, political, economic and

social—in which John and his barons felt a vital interest, has involved

an analysis in some detail of the whole public and private life of

England during the thirteenth century. The Commentary is preceded by a

Historical Introduction, which describes the events leading to the

crisis of 1215, analyzes the grievances which stirred the barons to

revolt, discusses the contents and characteristics of the Charter,

traces its connection with the subsequent course of English history, and

gives some account of previous editions and commentaries.

While reference has been made throughout to original sources where these

were available, advantage has been freely taken of the labours of

others. If a debt of gratitude requires to be here acknowledged to

previous commentators, a far deeper debt is due to many scholars who

have, within recent years, by their labours in various fields not

directly connected with Magna Carta, incidentally thrown light on topics

of which the Charter treats. Of Bishop Stubbs it is almost unnecessary

to speak, since his works form the common starting-point of all

historians and constitutional lawyers of the present generation. Readers

versed in modern literature will readily trace the influence of Prof.

Maitland, Mr. J. Horace Round, Sir Frederic Pollock, Mr. L. O. Pike, and

Prof. Prothero; while the numerous other authorities laid under

contribution are referred to in the foot-notes and the appended

bibliography. Frequent reference has been made to two independent and

scholarly histories of the reign of John which have recently

appeared—Miss Norgate’s _John Lackland_, and Sir James H. Ramsay’s

_Angevin Empire_. Of the older books dealing directly with the subject

in hand, Sir William Blackstone’s _Great Charter_ has been found the

best; while among modern works the _Chartes_ of M. Charles Bémont is the

most valuable. The inexhaustible stores of Madox’s _History of the

Exchequer_ have also been freely drawn upon.

While these pages were passing through the press a brilliant essay by

Mr. Edward Jenks appeared in the pages of _The Independent Review_ for

November 1904, whose title _The Myth of Magna Carta_ indicates the

unconventional and iconoclastic lines on which it proceeds. He argues

with much force that the Charter was the product of the selfish action

of the barons pressing their own interests, and not of any disinterested

or national movement; that it was not, by any means, “a great landmark

in history”; and that, instead of proving a material help in England’s

advance towards constitutional freedom, it was rather “a stumbling block

in the path of progress,” being entirely feudal and reactionary in its

intention and effects. Finally, for most of the popular misapprehensions

concerning it, he holds Sir Edward Coke responsible. How far the present

writer is in agreement with these opinions will appear from the

following pages: but Mr. Jenks’ position would seem to require

modification in at least three respects: (1) A few of the provisions of

John’s Charter are by no means of a reactionary nature. (2) Coke cannot

be credited with the initiation of all, or even most, of the popular

fallacies which have come, in the course of centuries, to cluster so

thickly round the Charter. (3) Mr. Jenks, perhaps, undervalues the

importance of traditional interpretations which, even when based on

insecure historical foundations, are shown in the sequel to have proved

of supreme value in the battle of freedom.

I am indebted to four friends who have kindly read my proof sheets, to

Mr. W. R. J. Gray, and Mr. Robert A. Moody, whose good offices in this

direction are not now rendered for the first time, and to two of the

members of my Honours Class of 1903-4, Mr. A. C. Black, Jun., and Mr. D.

B. Mungo, all of whom have been zealous in help and fertile in

suggestion.

KNIGHTSWOOD, ELDERSLIE,

RENFREWSHIRE, _6th February, 1905_

CONTENTS

HISTORICAL INTRODUCTION.

PART I. EVENTS LEADING TO MAGNA CARTA:

PAGE

I. William I. to Henry II.: Main Problem, the 1

Monarchy,

II. William I. to Henry II.: Problem of Local 16

Government,

III. William I. to Henry II.: Problem of Church and 20

State,

IV. Richard I. and John, 23

V. The Years of Crisis, 33

VI. Runnymede, and after, 43

PART II. FEUDAL GRIEVANCES AND MAGNA CARTA:

I. The Immediate Causes of the Crisis, 58

II. The Crown and Feudal Obligations, 64

III. Royal Justice and Feudal Justice, 93

PART III. MAGNA CARTA: ITS FORM AND CONTENTS:

I. Its Prototypes: Earlier Charters, 113

II. Magna Carta: Its Form and Juridical Nature, 123

III. Magna Carta: Its Contents and Characteristics, 129

IV. Magna Carta: An Estimate of its Value, 144

V. Magna Carta: Its Defects, 150

VI. Magna Carta: Value of Traditional Interpretations, 154

VII. Magna Carta: Its Traditional Relation to Trial by 158

Jury,

PART IV. HISTORICAL SEQUEL TO MAGNA CARTA:

I. Reissues and Confirmations of the Great Charter, 164

II. Magna Carta and the Reforms of Edward I., 186

PART V. MAGNA CARTA; ORIGINAL VERSIONS, PRINTED EDITIONS, AND

COMMENTARIES:

I. Manuscripts of Magna Carta and Relative Documents, 194

II. Previous Editions and Commentaries, 205

MAGNA CARTA:

TEXT, TRANSLATION, COMMENTARY.

PREAMBLE.

I. The King’s Title. II. The names of the consenting 215

Nobles. III. The Reasons of the Grant,

CHAPTER ONE.

I. The Rights of the National Church: (1) _Quod 222

Anglicana ecclesia libera sit_; (2) Canonical

Election. II. Civil and Political Rights,

CHAPTER TWO.

I. Assessment of Reliefs. II. Units of Assessment: (1) 229

_Feodum militis integrum_; (2) _Baronia integra_; (3)

_Baronia comitis integra._ III. Liability of Church

Property to Reliefs,

CHAPTER THREE.

No Relief after Wardship, 239

CHAPTER FOUR.

Wardship: (1) The Definition of Waste; (2) The 241

Punishment of Wasteful Guardians; (3) Provision

against Recurrence,

CHAPTER FIVE.

I. The Obligations of the Warden of a Lay-fief. II. 246

Wardship over Vacant Sees,

CHAPTER SIX.

The Marriage of Wards, 250

CHAPTER SEVEN.

I. The Widow’s Share of Real Estate: (1) Dower; (2) 253

_Maritagium_; (3) _Hereditas._ II. Her Share of

Personal Estate. III. Provision for her Immediate

Needs: (1) Quarantine; (2) Estovers of Common,

CHAPTER EIGHT.

Marriage of Widows, 260

CHAPTER NINE.

Procedure for Enforcing Payment of Debts, 261

CHAPTER TEN.

Usury. I. The History of the Jews in England. II. Legal 265

Position of the Jews,

CHAPTER ELEVEN.

Widows and Children of Debtors to be Protected against 273

Creditors,

CHAPTER TWELVE.

I. Protection of Crown Tenants from Arbitrary Exactions: 274

(1) Scutage; (2) Feudal Aids. II. Protection of

Citizens of London: Aids and Tallages. III. Magna

Carta and the Theory of Parliamentary Taxation,

CHAPTER THIRTEEN.

Liberties and Free Customs of London, 284

CHAPTER FOURTEEN.

Method of obtaining the Common Council of the Kingdom. 291

I. Nature of the Summons. II. Composition of the

Council. III. Position of the “Minor Barons.” IV.

Representation. V. Powers and Functions of the

Council. VI. Rights of Majorities and Minorities,

CHAPTER FIFTEEN.

Restrictions on Mesne Lords taking Aids. I. Points of 301

difference between tenants-in-chief and under-tenants.

II. The influence of Magna Carta upon later practice,

CHAPTER SIXTEEN.

No one to perform greater service for a tenement than is 306

due,

CHAPTER SEVENTEEN.

Common Pleas. I. The Curia Regis as a Court of Law. II. 308

Common Pleas and Royal Pleas. III. Effects of Magna

Carta on the Genesis of the three Courts of Common

Law. IV. Evolution of the Court of Common Pleas. V.

Erroneous Views,

CHAPTER EIGHTEEN.

Petty Assizes. I. The Curia Regis and the Travelling 317

Justices. II. The Nature and Origin of the three Petty

Assizes. III. The Assizes in 1215. IV. An Erroneous

View. V. Later History of the Justices of Assize,

CHAPTER NINETEEN.

Procedure at Petty Assizes, 331

CHAPTER TWENTY.

Amercement. I. Three Stages of Criminal Law: (1) The 334

blood-feud; (2) Fixed money-payments; (3) Amercements.

II. Magna Carta and Amercements: (1) Of the

Freeholder; (2) Of the Merchant; (3) Of the Villein;

(4) Fines and Amercements; (5) Contenement,

CHAPTER TWENTY-ONE.

Amercement of Earls and Barons, 346

CHAPTER TWENTY-TWO.

Amercement of the Clergy, 349

CHAPTER TWENTY-THREE.

I. Origin of the Obligation to make Bridges. II. The 352

King’s Rights of Falconry. III. Erroneous

Interpretations,

CHAPTER TWENTY-FOUR.

I. Pleas of the Crown. II. Keeping and Trying Criminal 358

Pleas. III. The Intention of Magna Carta. IV. An

Erroneous View. V. Local Magistrates under John: (1)

The Sheriff; (2) The Constable; (3) The Coroner; (4)

The Bailiff,

CHAPTER TWENTY-FIVE.

Farms of Counties and Hundreds, 372

CHAPTER TWENTY-SIX.

Crown Debtors. I. Nature of the Grievance. II. The Right 376

to Bequeath,

CHAPTER TWENTY-SEVEN.

Intestate Succession, 382

CHAPTER TWENTY-EIGHT.

I. Purveyance in General. II. Branches of it restricted 385

by Magna Carta. III. Its other Branches,

CHAPTER TWENTY-NINE.

Castle-Guard, 390

CHAPTER THIRTY.

Purveyance of Horses and Carts, 392

CHAPTER THIRTY-ONE.

Purveyance of Timber, 393

CHAPTER THIRTY-TWO.

I. The Crown’s Claim to Felons’ Property: (1) Lands; (2) 394

Chattels. II. Indictment, Conviction, and Attainder,

CHAPTER THIRTY-THREE.

Obstructions to be removed from Rivers, 402

CHAPTER THIRTY-FOUR.

The Writ “_Praecipe_.” I. Royal Writs and the Feudal 405

Jurisdictions. II. Influence of this provision on

later legal Development,

CHAPTER THIRTY-FIVE.

Standards of Weights and Measures, 414

CHAPTER THIRTY-SIX.

Writ _de Odio et Atia_. I. Trial by Combat prior to 417

John’s Reign. II. The Writ of Life and Limbs. III. Its

Subsidiary Uses. IV. Later History of Appeal and

Battle,

CHAPTER THIRTY-SEVEN.

Prerogative Wardship, 427

CHAPTER THIRTY-EIGHT.

No Bailiff to put anyone to his “law” without Witnesses. 430

I. Probable Object of this Chapter. II. Medieval

Interpretations. III. Modern Interpretations,

CHAPTER THIRTY-NINE.

I. Its Main Object: (1) Judgment must precede Execution; 436

(2) _Per judicium parium_; (3) _Per legem terrae_; (4)

Meaning of "_vel_." II. The scope of the Protection

afforded. III. What classes of men enjoyed it. IV.

Reactionary Aspects. V. The Genesis of this Chapter.

VI. Later History of "Judgment of Peers." VII.

Erroneous Interpretations,

CHAPTER FORTY.

Justice not to be Sold, Refused, or Delayed, 459

CHAPTER FORTY-ONE.

Freedom of Trade. I. Magna Carta favours Alien 463

Merchants. II. Customs and Tolls. III. The Motives

prompting this Chapter. IV. English Boroughs and

Merchant Strangers,

CHAPTER FORTY-TWO.

Liberty to leave the Kingdom—Writs _ne exeat regno_, 473

CHAPTER FORTY-THREE.

Tenants of Escheated Baronies, 478

CHAPTER FORTY-FOUR.

I. The Royal Forests. II. Their Origin. III. Forest 482

Officials. IV. Forest Courts. V. Chases, Parks, and

Warrens. VI. Forest Rights and Forest Grievances. VII.

Later History of Forests and Forest Laws,

CHAPTER FORTY-FIVE.

Justices, Castellans, Sheriffs, and Bailiffs to be 502

law-abiding men,

CHAPTER FORTY-SIX.

Wardship over Vacant Abbeys, 505

CHAPTER FORTY-SEVEN.

Forests and River-banks encroached upon by John, 507

CHAPTER FORTY-EIGHT.

Procedure for abolishing Evil Customs of Forests and 511

elsewhere,

CHAPTER FORTY-NINE.

Hostages and Charters to be restored, 514

CHAPTER FIFTY.

List of those excluded from offices of trust in future, 518

CHAPTER FIFTY-ONE.

Expulsion of Foreign Mercenaries, 522

CHAPTER FIFTY-TWO.

Procedure for redressing wrongful Disseisins, 523

CHAPTER FIFTY-THREE.

A Crusader’s Respite allowed to John, 525

CHAPTER FIFTY-FOUR.

Right of Appeal by Women, 527

CHAPTER FIFTY-FIVE.

Remission of Unjust Fines and Amercements, 530

CHAPTER FIFTY-SIX.

Redress for Welshmen wrongfully disseised by John, 533

CHAPTER FIFTY-SEVEN.

Redress for Welshmen wrongfully disseised by Henry II. 534

or Richard I.,

CHAPTER FIFTY-EIGHT.

Welsh Hostages and Charters to be restored, 536

CHAPTER FIFTY-NINE.

Justice to be done to Alexander, King of Scots; 537

Relations of England and Scotland,

CHAPTER SIXTY.

Extension of Provisions of Charter to Tenants of Mesne 543

Lords,

CHAPTER SIXTY-ONE.

The _Forma Securitatis_ or Legal Sanction of the 545

Charter. I. Nature of the Security. II. Minor Details

of the Scheme: (1) Twenty-five Executors; (2) A quorum

may act; (3) Sub-committee of four; (4) Local Agents;

(5) The Co-operation of the Public. III. Criticism of

the Scheme. IV. Dr. Gneist’s Opinion. V. Failure of

the Scheme,

CHAPTER SIXTY-TWO.

Prelates to issue Letters Testimonial, 562

CHAPTER SIXTY-THREE.

Formal Clauses, 563

APPENDIX.

DOCUMENTS RELATIVE TO, OR ILLUSTRATIVE OF, JOHN’S MAGNA

CARTA:

I. The Charter of Liberties of Henry I. (1100), 565

II. The Second or Oxford Charter of Stephen (1136), 567

III. Charter of Henry II. (_circa_ 1154), 568

IV. The so-called “Unknown Charter of Liberties,” 569

V. The Articles of the Barons (1215), 570

VI. Writs Supplementary of John’s Great Charter, 576

VII. The Great Charter of Henry III. (Second Re-issue, 580

6th November, 1217),

VIII. Carta de Foresta, 586

SELECT BIBLIOGRAPHY AND LIST OF AUTHORITIES REFERRED TO, 590

INDEX TO STATUTES, 597

GENERAL INDEX 599

HISTORICAL INTRODUCTION.

PART I.

EVENTS LEADING TO MAGNA CARTA.

The Great Charter is too often treated as the outcome of purely

accidental causes. Students of its origin are sometimes content to

explain it as a mere tangible product of the successful resistance

called forth by the tyrannies of King John. That monarch’s personal

misdeeds, it is maintained, goaded into determined action a fierce

unflinching opposition which never rested until it had achieved success;

and the outcome of this success was the winning of the Great Charter of

Liberties. The moving causes of events of such tremendous moment are

thus sought in the characteristics and vices of one man. If John had

never lived and sinned, so it would appear, the foundations of English

freedom would never have been laid.

Such shallow views of history unnecessarily belittle the magnitude and

inevitable nature of the sequence of causes and effects upon which great

issues really depend. The compelling logic of events forces a way for

its own fulfilment, independent of the caprices, aims and ambitions of

individual men. The incidents of John’s career are the occasions, not

the causes, of the great national movement which laid the foundations of

English liberties. The origin of Magna Carta lies too deep to be

determined by any purely contingent or accidental phenomena. It is as

unwise as it is unnecessary to suppose that the course of constitutional

development in England was suddenly and violently wrested into a

completely new channel, merely because of the incapacity or misdeeds of

the temporary occupant of the throne. The source of the discontent

fanned to flame by John’s oppressions must be sought in earlier reigns.

The genesis of the Charter cannot be understood apart from its

historical antecedents, and these are inextricably bound up with the

whole story how England grew to be a nation.

In expounding the origin of the Charter, it is necessary briefly to

narrate how the scattered Anglo-Saxon and Danish tribes and territories,

originally unconnected, were gradually welded together and grew into

England; how this fusion was made permanent by the growth of a strong

form of centralized monarchical government which crushed out all

attempts at local independence, and threatened to become the most

absolute despotism in Europe; and how, finally, the Crown, because of

the very plenitude of its power, challenged opposition and called into

play forces which set limits to royal prerogatives and royal

aggressions, and at the same time laid the foundations of the reign of

law. A short survey of the early history of England forms a necessary

preliminary to a right understanding of Magna Carta. Such a survey makes

prominent two leading movements, one of which succeeds the other;

namely, the establishment of a strong monarchy able to bring order out

of anarchy, and the subsequent establishment of safeguards to prevent

this source of order degenerating into an unrestrained tyranny, and so

crushing out not merely anarchy but legitimate freedom as well. The

later movement, in favour of liberty and the Great Charter, was the

natural complement, and, in part, the consequence of the earlier

movement in the direction of a strong government able to enforce peace.

In historical sequence, order precedes freedom.

These two problems, each forming the counterpart of the other,

necessarily arise in the history of every nation, and in every age; the

problem of _order_, or how to found a central government strong enough

to suppress anarchy, and the problem of _freedom_, or how to set limits

to an autocracy threatening to overshadow individual liberty. Neither of

these problems can ever be ignored, not even in the twentieth century;

although to-day the accumulated political experience of ages has enabled

modern nations, such at least as are sufficiently educated in

self-government, to thrust them into the background, out of view. Deep

political insight may still be acknowledged in Æsop’s fable of Jupiter

and the frogs. King Log proves as ineffective against foreign invasion

as he is void of offence to domestic freedom; King Stork secures the

triumph of his subjects in time of war, but devours them in time of

peace. All nations in their early efforts to obtain an efficient

government have to choose between these two types of ruler—between an

executive, harmless but weak; and one powerful enough effectively to

direct the business of government at home and abroad, but ready to turn

the powers entrusted to him for the good of all, to his own selfish uses

and the trampling out of his subjects’ liberties.

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

were mainly the outcome of the Crown’s weakness; while, at the Norman

Conquest, England escaped from the mild sceptre of inefficiency, only to

fall under the cruel sceptre of selfish strength. Yet the able kings of

the new dynasty, powerful as they were, had to struggle in order to

maintain their supremacy; for, although the conquered English races were

incapable of concerted resistance against their Norman masters, the

unruly alien barons fought vigorously to shake off the royal control.

During a century of Norman rule, constant warfare was waged between two

great principles—the monarchic standing on the whole for order, seeking

to crush anarchy, and the oligarchic or baronial, standing on the whole

for liberty, protesting against the tyranny of autocratic power.

Sometimes one of these was in the ascendant; sometimes the other. The

history of medieval England is the swing of the pendulum between these

two extremes.

The main plot, then, of early English history, centres round the attempt

to found a strong monarchy, and yet to set limits to its strength. With

this main plot subordinate plots are interwoven. Chief among these must

be reckoned the necessity of defining the relations of the central to

the local government, and the need of an acknowledged frontier between

the domains of Church and State. On the other hand, all that interesting

group of problems connected with the _ideal form_ of government, much

discussed in the days of Aristotle as in our own, is notably absent,

never having been forced by the logic of events upon the mind of

medieval Europe. Monarchy was apparently assumed as the only possible

scheme of government; while the relative merits of aristocracy and

democracy, or of the much-vaunted constitution known as “mixed,” were

not canvassed, since these forms of constitution were not within the

sphere of practical politics.

The student of history will do well to concentrate his attention at

first on the main problem, while viewing the subsidiary ones in their

relations to the central current.

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

The attention of the most casual student is arrested by the

consideration of the difficulties which surrounded the English nation in

its early struggles for bare existence. The great problem was, first,

how to get itself into being, and thereafter how to guard against the

forces of disintegration, which strove without rest to tear it to pieces

again. The dawn of English history shows the beginning of that long slow

process of consolidation in which unconscious reason played a deeper

part than human will, whereby many discordant tribes and races, many

independent provinces, were crushed together into something bearing a

rude likeness to a united nation. Many forces converged in achieving

this result. The coercion of strong tribes over their weaker neighbours,

the pressure of outside foes, the growth of a body of law, and of public

opinion, the influence of religion in the direction of peace, all helped

to weld a chaos of incongruous and warring elements together.

It is notable that each of the three influences, destined ultimately to

aid most materially in this process of unification, threatened at one

time to have a contrary effect. Thus the rivalries of the smaller

kingdoms tended at first towards a complete disruption, before Wessex

succeeded in asserting an undisputed supremacy; the Christianizing of

England partly by Celtic missionaries from the north and partly by

emissaries from Rome threatened to split the country into two, until

their mutual rivalries were stilled after the Synod of Whitby in 664;

and one effect of the incursion of the Danes was to create an absolute

barrier between the lands that lay on either side of Watling Street,

before the whole country succumbed to the unifying pressure of Cnut and

his sons.

The stern discipline of foreign conquest was required to make national

unity possible; and, with the restoration of the old Wessex dynasty in

the person of Edward Confessor, the forces of disintegration again made

headway. England threatened once more to fall to pieces, but at the

critical and appointed time the iron rule of the Normans came to

complete what the Danes had begun half a century earlier. As the

weakness of the Anglo-Saxon kings and the disruption of the country had

gone hand in hand, so the process which, after the Conquest, made

England one, was identical with the process which established the throne

of the new dynasty on a strong, enduring basis. The complete unification

of England was the result of the Norman despotism.

Thereafter, the strength of its monarchy was what rendered England

unique in medieval Europe. Three great kings in especial contributed, by

their ability and indomitable power of will, to this result—William the

Conqueror, Henry Beauclerk, and Henry Plantagenet. In a sense, the work

of all three was the same, namely, to build up the central authority

against the disintegrating effects of feudal anarchy; but the policy of

each was necessarily modified by changing times and needs. The

foundations of the whole were laid by the Conqueror, whose character and

circumstances combined to afford him an opportunity unparalleled in

history. The difficulties of his task, and the methods by which he

carried it to a successful issue, are best understood in relation to the

nature of the opposition he had to dread. Feudalism was the great

current of the age—a tide formed by many converging streams, all flowing

in the same direction, unreasoning like the blind powers of Nature,

carrying away and submerging every obstacle in its path. In other parts

of Europe—in Germany, France, and Italy, as in Scotland—the ablest

monarchs found their thrones undermined by this feudal current. In

England alone the monarchy made headway against the flood. William I.

wisely refrained from any mad attempt to stay the torrent; but, while

accepting it, he quietly subjected it to his own purposes. He carefully

watched and modified the tendencies making for feudalism, which he found

in England on his arrival, and he profoundly altered the feudal usages

and rights which his followers transplanted from the Norman soil. The

special expedients used by him for this purpose are well known, and are

all closely connected with his crafty policy of balancing the

Anglo-Saxon basis of his rule against the imported Norman

superstructure, and of selecting at his own discretion such elements as

suited him in either. He encouraged the adoption or intensification in

England of feudalism, considered as a system of land tenure and as a

system of social distinctions based on the possession of land; but he

successfully endeavoured to check the evils of its unrestrained growth

in its other equally important aspects, namely, as a system of local

government seeking to be independent of the Crown, and as a system of

jurisdiction. As a political system, it was always a subject of

suspicion to William, for he viewed it in the light of his double

experience in Normandy as feudal lord and feudal vassal.

William’s policy was one of balancing. His whole career in England was

characteristically inaugurated by his care to support his claim to the

throne on a double basis. Not content to depend merely on the right of

conquest, he insisted on having his title confirmed by a body claiming

to represent the old Witenagemot of England, and he further alleged that

he had been formally named as successor by his kinsman, Edward

Confessor, a nomination strengthened by the renunciation of Harold in

his favour. Thus, to his Norman followers claiming to have set him by

force of arms on his throne, William might point to the form of election

by the Witan, while for his English subjects, claiming to have elected

him, the presence of the foreign troops was an even more effective

argument. Throughout his reign, his plan was to balance the old English

laws and institutions against the new Norman ones, with himself as

umpire over all. Thus he retained whatever suited him in Anglo-Saxon

customs. Roger of Hoveden tells us how, in the fourth year of his reign,

twelve of the subject English from each county—noble, wise, and learned

in the laws—were summoned to recite on oath the old customs of the

land.[1] He retained, too, the old popular moots or meetings of the

shire and hundred as a counterpoise to the feudal jurisdictions; the

fyrd or militia of all free men as a set-off to the feudal levy; and

such of the incidents of the old Anglo-Saxon tenures of land as met his

requirements.

-----

Footnote 1:

R. Hoveden, _Chronica_, II. 218.

-----

Thus the subject English, with their customs and ancient institutions,

were used as expedients for modifying the excesses of feudalism.

William, however, did not shrink from innovations where these suited his

purpose. The great earldoms into which England had been divided, even

down to the Norman Conquest, were abolished. New earldoms were indeed

created, but on an entirely different basis. Even the great officers,

subsequently known as Earls Palatine, always few in number, never

attained either to the extent of territory or to the independence of the

Anglo-Saxon ealdormen. William was chary of creating even ordinary

earls, and such as he did create soon became mere holders of empty

titles of honour, while they found themselves ousted from all real power

by the Norman _vicecomites_ or sheriffs. No English earl was a “count”

in the continental sense (that is, a real ruler of a “county”). Further,

no earl was allowed to hold too large an estate within his titular

shire; and William, while compelled to reward his followers’ services

with great possessions, was careful that these should be split up in

widely scattered districts of his Kingdom. Thus the great feudatories

were prevented from consolidating their resources against the Crown.

Various ingenious devices were used for checking the feudal excesses so

prevalent on the continent. Rights of private war, coinage, and

castle-building, were jealously watched and circumscribed; while private

jurisdictions, although tolerated as a necessary evil, were kept within

bounds. The manor was in England the normal unit of seignorial

jurisdiction, and higher courts of Honours were so exceptional as to be

a negligible quantity. No feudal appeal lay from the manorial court of

one magnate to that of his over-lord, while, in later reigns at least,

appeals were encouraged to the _Curia Regis_. Almost at the close of

William’s reign a new encroachment upon the feudal spirit was

accomplished, when the Conqueror on Salisbury Plain compelled all

freeholders to take an oath of homage and fealty personally to the king.

The results of this policy have been well summarized as “a strong

monarchy, a relatively weak baronage, and a homogeneous people.”

During the reign of William II. (1087-1100) the constitution made no

conspicuous advance. The foundations had been laid; but Rufus was more

intent on his hunting and enjoyments, than on the deeper matters of

statecraft. Some minor details of feudal organization were doubtless

settled and defined in these thirteen years by the King’s Treasurer,

Ralph Flambard; but the extent to which he innovated on the practice of

the elder William is matter of dispute. On the whole, the reign must be

considered as a time of rest between two periods of advance.

Henry I. (1100-35) took up, with far-seeing statesman’s eye and much

vigour, the work of consolidation. His policy shows an advance upon that

of his father. William had contented himself with controlling and

curbing the main vices of feudalism, while he played off against it the

English native institutions. Henry went further, and introduced within

the _Curia Regis_ itself a new class of men representing a new principle

of government. The great offices of state, previously held by men of

baronial rank, were now filled with creatures of Henry’s own, men of

humble birth, whose merit had raised them to his favour, and whose only

title to power lay in his goodwill. The employment of this strictly

professional class of administrators was one of the chief contributions

made by Henry to the growth of the constitution. His other great

achievement was the organization of the Exchequer, primarily as a source

of royal revenue, but soon found useful as a means of making his will

felt in every corner of England. For this great work he was fortunate to

secure in Roger, Bishop of Salisbury, the help of a man who combined

genius with painstaking ability. At the Exchequer, as organized by the

King and his minister, the sheriff of each county twice a year, at

Easter and at Michaelmas, rendered account of every payment that had

passed through his hands. His balance was adjusted before all the great

officers of the King’s household, who subjected his accounts to close

scrutiny and criticism. Official records were drawn up, one of which—the

famous Pipe Roll of 1130,—is extant at the present day. As the sums

received by the sheriff affected every class of society in town and

country, these half-yearly audits enabled the King’s advisers to

scrutinize the lives and conduct of every one of importance in the land.

These half-yearly investigations were rendered more effective by the

existence at the Exchequer of a great record of every landed estate in

England. With this the sheriffs’ returns could be checked and compared.

Henry’s Exchequer thus found one of its most powerful weapons in the

great Domesday Survey, the most enduring proof of the statesmanship of

the Conqueror, by whose orders and under whose direction it had been

compiled.

The central scrutiny conducted within the two chambers of the Exchequer

was supplemented by occasional inspections conducted in each county. The

King’s representatives, including among them usually some of the

officers whose duty it was to preside over the half-yearly audit,

visited, at intervals still irregular, the various shires. These Eyres,

as they were called, were at first chiefly undertaken for financial

purposes. The main object was to check, on the scene of their labours,

the statements made at Westminster by the various sheriffs. From the

first, such financial investigations necessarily involved the trial of

pleas. Complaints of oppression at the hands of the local tyrant of the

county were naturally made and determined on the spot; gradually, but

not until a later reign, the judicial business became equally important

with the financial, and ultimately even more important.

Henry at his death in 1135 seemed to have carried nearly to completion

his congenial task of building a strong monarchy on the foundations laid

by William I. Much of his work was, however, for a time undone, while

all of it seemed in imminent danger of perishing for ever, because he

left no male heir of his body to succeed him on the throne. His

daughter’s claims were set aside by Stephen, the son of the Conqueror’s

daughter, and a cadet of the House of Blois, to whom Henry had played

the indulgent uncle, and who repaid his benefactor’s generosity by

constituting himself his heir. From the first moment of his reign,

Stephen proved unequal to the task of preserving the monarchy intact

from the wild forces that beat around the throne. His failure is

attributed by some to his personal characteristics, and by others to the

defective nature of his title, combined with the presence of a rival in

the field in the person of his cousin, Henry’s daughter, the ex-Empress

Matilda. The nineteen years of anarchy which nominally formed his reign

did nothing—and worse than nothing—to continue the work of his great

ancestors. The power of the Crown was humbled, and England was almost

torn in fragments by the selfish claims of rival feudal magnates to

local independence.

With the accession of Henry II. (1154) the tide quickly turned, and

turned for good.

Of the numerous steps taken by Henry Plantagenet to complete the work of

the earlier master-builders of the English monarchy, only a few need

here be mentioned. Ascending the throne in early manhood, he brought

with him a statesman’s instinct peculiar to himself, together with the

unconquerable energy common to his race. He rapidly overhauled every

existing institution and every branch of administration. The permanent

_Curia Regis_ was not only restored to efficient working order, but was

improved in each one of its many aspects—as the King’s household, as a

financial bureau, as the administrative centre of the entire kingdom,

and as the special vehicle of royal justice. The Exchequer, which was

indeed originally merely the _Curia_ in its financial aspect, received

the re-organization so urgently needed after the terrible strains to

which it had been subjected amid the quarrels of Stephen and Matilda.

The Pipe Rolls were revived and various minor reforms in financial

matters effected. All local courts (both the old popular courts of

hundred and county, and also the feudal jurisdictions) were brought

under the more effective control of the central government by various

expedients. Chief among these was the restoration of the system of Eyres

with their travelling justices (a natural supplement to the restoration

of the Exchequer), whose visits were now placed on a more regular and

systematic basis. Equally important were the King’s personal care in the

selection of fit men for the duties of sheriff, the frequent punishments

and removal from office of offenders, and the rigid insistence upon

efficient training and uprightness in all who enjoyed places of

authority under the Crown. Henry was strong enough to employ more

substantial men than the _novi homines_ of his grandfather without

suffering them to be less devoted to the interests of their Prince. Yet

another expedient for controlling local courts was the calling up of

cases to his own central feudal _Curia_, or before those benches of

professional judges, the future King’s Bench and Common Pleas, forming

as yet merely committees of the _Curia_ as a whole.

Closely connected with the control thus established over the local

courts was the new system of procedure instituted by Henry. The chief

feature was that each litigation must commence with an appropriate royal

writ issued from the Chancery. Soon for each class of action was devised

a special writ appropriate to itself, and the entire procedure came to

be known as "the writ process"—an important system to which English

jurisprudence owes both its form and the direction of its growth. Many

reforms which at first sight seem connected merely with minute points of

legal procedure were really fraught with immense purport to the

subsequent development of English law and English liberties. A great

future was reserved for certain expedients adopted by Henry for the

settlement of disputes as to the possession or ownership of land, and

also for certain expedients for reforming criminal justice instituted or

systematized by a great ordinance, issued in 1166, known as the Assize

of Clarendon.[2] A striking feature of Henry’s policy was the bold

manner in which he threw open the doors of his royal Courts of Law to

all-comers, and provided there—always in return for hard cash, be it

said—a better article in name of justice than could be procured

elsewhere in England, or for that matter, elsewhere in Europe. Thus, not

only was the Exchequer filled with fines and fees, but, insidiously and

without the danger involved in a frontal attack, Henry sapped the

strength of the great feudal magnates, and diverted the stream of

litigants from the manorial courts to his own. The same policy had still

another result in facilitating the growth of a body of common law,

uniform throughout the length and breadth of England, and opposed to the

varying usages of localities or even of individual baronial courts.

-----

Footnote 2:

The details of these reforms are fully discussed _infra_ under the

head of “Royal Justice and Feudal Justice,” and some of their ultimate

effects under the head of “Trial by Jury.”

-----

These reforms, besides influencing the current of events in England in

numerous ways, both direct and indirect, all helped to strengthen the

throne of Henry and his sons. Another class of reforms contributed

greatly to the same result, namely, the reorganization of the army. This

was effected in various ways: partly by the revival and more strict

enforcement of the obligations connected with the old Anglo-Saxon fyrd

or militia, under the Assize of Arms in 1181, which compelled every

freeman to maintain at his own expense weapons and warlike equipment

suited to his station in life; partly by the ingenious method of

increasing the amount of feudal service due from Crown tenants, based

upon an investigation instituted by the Crown and upon the written

replies returned by the barons, known to historians as “the _Cartae_ of

1166”; and partly by the development (not, as is usually supposed, the

_invention_) of the principle of scutage, a means whereby unwilling

military service, limited as it was by annoying restrictions as to time

and place, might be exchanged at the option of the Crown for money, with

which a more flexible army of mercenaries might be hired.

By these expedients, along with many others, Henry raised the English

monarchy, always in the ascendant since the Conquest, to the very zenith

of its power, and left to his sons the entire machinery of government in

perfect working order, combining high administrative efficiency with

great strength. Full of bitter strifes and troubles as his reign of

thirty-five years had been, nothing had interfered with the vigour and

success of the policy whereby he tightened his hold on England. Neither

the long bitter struggle with Becket and the Church, ending as it did in

Henry’s personal humiliation, nor the unnatural warfare with his sons,

which involved the depths of personal suffering to the King and hastened

his death in 1189, was allowed to interfere with his projects of reform

in England.

The last twenty years of his life had been darkened for him, and proved

troubled and anarchic in the extreme to his continental dominions; but

in England profound peace reigned. The last serious revolt of the powers

of feudal anarchy had been suppressed in 1173 with characteristic

thoroughness and moderation. After that date, the English monarchy

retained its supremacy almost without an effort.

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

It is necessary to leave for a time the English monarchy at its zenith,

still enjoying in 1189 the powers and reputation gained for it by Henry

of Anjou, and to retrace our steps, in order to consider two subsidiary

problems, each of which requires separate treatment—the problem of local

government, and that of the relations between Church and State. The

failure of the Princes of the House of Wessex to devise adequate

machinery for keeping the Danish and Anglian provinces in subjection to

their will was one main source of the weakness of their monarchy. When

Duke William solved this problem he took an enormous stride towards

establishing his throne on a securer basis.

Every age has to face, in its own way, a group of difficulties

essentially the same, although assuming such different names as Home

Rule, Local Government, or Federation. Problems as to the proper nature

of the local authority, the extent of the powers with which it may be

safely entrusted, and its relation to the central government, require

constantly to be solved. The difficulties involved, always great, were

unspeakably greater in an age when practically no administrative

machinery existed, and when rapid communication and serviceable roads

were unknown. A lively sympathy is excited by a consideration of the

almost insuperable difficulties that beset the path of King Edgar or

King Ethelred, endeavouring to rule from Winchester the distant tribes

of alien races inhabiting Northumbria, Mercia, and East Anglia. If such

a king placed a weakling as ruler over any distant province, anarchy

would result and his own authority might be endangered along with that

of his inefficient representative. Yet, if he entrusted the rule of that

province to too strong a man, he might find his suzerainty shaken off by

a viceroy who had consolidated his position and then defied his king.

Here, then, are the two horns of a dilemma, both of which are

illustrated by the course of early English history. When Wessex had

established some measure of authority over rival states, and was fast

growing into England, the policy at first followed was simply to leave

each province under its old native line of rulers, who now admitted a

nominal dependence on the King who ruled at Winchester. The early

West-Saxon Princes vacillated between two opposite lines of policy.

Spasmodic attempts at centralization alternated with the reverse policy

of local autonomy. In the days when Dunstan united the spiritual duties

of the See of Canterbury to the temporal duties of chief adviser to King

Edgar, the problem of local government became urgent. Dunstan’s scheme

has sometimes been described as a federal or home-rule policy—as a frank

surrender of the attempt to control exclusively from one centre the

mixed populations of Northern and Midland England. His attempted

solution was to loosen rather than to tighten further the bond; to

entrust with wide powers and franchises the local viceroy or ealdorman

in each district, and so to be content with a loose federal empire—a

union of hearts rather than a centralized despotism founded on coercion.

The dangers of such a system are the more obvious when it is remembered

that each ealdorman commanded the troops of his own province.

Cnut’s policy has been the subject of much discussion, and has sometimes

apparently been misunderstood. The better opinion is that, with his

Danish troops behind him, he felt strong enough to reverse Dunstan’s

tactics and to take a decisive step in the direction of centralization

or unity. His provincial viceroys (jarls or earls, as they were now

called, rather than by their old vague title of ealdormen), were

appointed on an entirely new basis. England was to be mapped out into

new administrative districts in the hope of obliterating the old tribal

divisions. Each of these was to be placed under a viceroy having no

hereditary or dynastic connection with the province he governed. In this

way, Cnut sought to avert the process by which the country was slowly

breaking up into a number of petty kingdoms.

If these viceroys were a source of strength to the powerful Cnut, they

were a source of weakness to the saintly Confessor, who was forced to

submit to the control of his provincial rulers, such as Godwin and

Leofric, as each in turn gained the upper hand in the field or in the

Witan. This process of disintegration continued until the coming of the

Conqueror utterly changed the relations of the monarchy to every other

factor in the national life.

Among the expedients adopted by the Norman Duke for reducing his

feudatories in England into subjection to the Crown, one of the most

important was the total abolition of the old provinces formerly governed

by separate ealdormen or jarls. Leaving out of account the exceptional

franchises, afterwards known as palatine earldoms, the real

representative of the King in each group of counties was now the sheriff

or _vicecomes_, not the earl. This Latin name of _vicecomes_ is

misleading, since the officer so-called in no sense represented the earl

or _comes_, but acted as the direct agent of the Crown. The name,

“viceroy,” more accurately describes his actual position and functions,

since he was directly responsible to the Crown, and independent of the

earl. The problem of local government, however, was not eradicated by

the substitution of the sheriff for the earl as chief magistrate in the

county; it only took a different form. The sheriffs themselves, when

relieved from the earl’s rivalry and control, tended to become too

powerful. If they never dreamed of openly defying the royal power, they

at least thwarted its exercise indirectly, appropriated to their private

uses items of revenue, pushed their own interests, and punished their

own enemies, while acting in the name of the King. The office threatened

to become territorial and hereditary,[3] and its holders aimed at

independence. New checks had to be devised to prevent this new local

authority from again defying the central power. New safeguards were

found, partly in the organization of the Exchequer and partly in the

device of sending periodically on circuit itinerant justices, who took

precedence of the sheriff, heard complaints against his misdeeds in his

own county, and thus enabled the Crown to keep a watchful eye on its

representatives. By such measures, Henry I. seemed almost to have solved

these problems before his death; but his success was apparent rather

than real.

-----

Footnote 3:

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

-----

The incompleteness of Henry’s solution of the difficulty became evident

under Stephen, when the leading noble of each locality tried, generally

with success, to capture _both_ offices for himself; great earls like

Ralph of Chester and Geoffrey of Essex compelled the King not only to

confirm them as sheriffs in their own titular counties, but also to

confer on them exclusive right to act as justices therein.

With the accession of Henry II. the problem was, thanks to his energy

and genius, more satisfactorily solved, or at least forced once more

into the background. That great ruler was strong enough to prevent the

growth of the hereditary principle as applied to offices either of the

Household or of local magistrates. The sheriffs were frequently changed,

not only by the drastic and unique measure known as the Inquest of

Sheriffs, but systematically, and as a normal expedient of

administration. For the time being, the local government was kept in

proper subjection to the Crown; and gradually the problem solved itself.

The power of the sheriffs tended in the thirteenth century to decrease,

chiefly because they found important rivals not only in the itinerant

judges, but also in two new officers first heard of in the reign of

Richard I., the forerunners of the modern Coroner and Justice of the

Peace respectively. All fear that the sheriffs as administrative heads

of districts would assert practical independence of the Crown was thus

at an end. Yet each of them still remained a petty tyrant over the

inhabitants of his own bailiwick. While the Crown was able and willing

to avenge any direct neglect of its own interests, it was not always

sufficiently alert to avenge wrongs inflicted upon its humble subjects.

The problem of local government, then, was fast losing its pressing

importance as regards the Crown, and taking a new form, namely, the

necessity of protecting the weak from unjust fines and oppressions

inflicted on them by local magistrates. The sheriff’s local power was no

longer a source of weakness to the monarch, but had become an effective

part of the machinery which enabled the Crown to levy with impunity its

always increasing taxation.

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

The national Church had been, from an early date, in tacit alliance with

the Crown. The friendly aid of a long line of statesman-prelates from

Dunstan downwards had given to the Anglo-Saxon monarchy much of the

little strength it possessed. Before the Conquest the connection between

Church and State had been exceedingly close, so much so that no one

thought of drawing a sharp dividing line between. What afterwards became

two separate entities, drifting more and more into active opposition,

were at first merely two aspects of one whole—a whole which comprehended

all classes of the people, considered both in their spiritual and their

temporal relations. Change necessarily came with the Norman Conquest,

when the English Church was brought into closer contact with Rome, and

with the ecclesiastical ideals prevailing on the Continent. Yet no

fundamental alteration resulted; the friendly relations which bound the

English prelates to the English throne remained intact, while English

churchmen continued to look to Canterbury, rather than to Rome, for

guidance. The Church, in William the Conqueror’s new realm, retained

more of a national character than could be found in any other nation of

Europe.

Gratitude to the Pope for his moral support in the work of the Conquest

never modified William’s determination to allow no unwarranted papal

interference in his new domains. His letter, both outspoken and

courteous, in reply to papal demands is still extant. “I refuse to do

fealty nor will I, because neither have I promised it, nor do I find

that my predecessors did it to your predecessors.” Peter’s pence he was

willing to pay at the rate recognized by his Saxon predecessors; but all

encroachments would be politely repelled.

In settling the country newly reduced to his domination, the Duke of

Normandy found his most valuable adviser in a former Abbot of the Norman

Abbey of Bec, whom he raised to be Primate of all England. No record has

come down to us of any serious dispute between William and Lanfranc.

Substantially friendly relations between their successors in the offices

of King and Archbishop remained, notwithstanding Anselm’s condemnation

of the evil deeds of Rufus. Anselm warmly supported that King’s

authority over the Norman magnates, even while he resented his evil

practices towards the Church. He contented himself with a dignified

protest (made emphatic by a withdrawal of his presence from England)

against the new exactions upon the English prelates, and against the

long intervals during which vacancies remained unfilled. Returning at

Rufus’s death from a sort of honourable banishment at Rome, to aid Henry

in maintaining order and gaining peaceable accession to the throne,

Anselm found himself compelled by his conscience and the recent decrees

of a Lateran Council, to enter on the great struggle of the

investitures. Church and State were gradually disentangling themselves

from each other; but in many respects the spiritual and temporal powers

were still indissolubly locked together. In particular, every bishop was

a vassal of the king, holder of a Crown barony, as well as a prelate of

Holy Church. By whom, then, should a bishop be appointed, by the

spiritual or by the temporal power? Could he without sin perform homage

for the estates of his See? Who ought to invest him with ring and

crozier, the symbols of his office as a shepherd of souls? Anselm

adopted one view, Henry the other. A happy compromise, suggested by the

King’s statesmanship, healed the breach for the time being. The ring and

crozier, as badges of spiritual authority, were to be conferred only by

the Church, but each prelate must perform fealty to the King before

receiving these symbols, and must do homage thereafter, but before he

was actually anointed as bishop. Canonical election was nominally

conceded by the King; but here again a practical check was devised for

rendering this power innocuous. The members of the cathedral chapter

were confirmed in the theoretic right to appoint whom they pleased, but

such appointment must be made in the King’s Court or Chapel, thus

affording the powerful monarch full knowledge of the proceedings, and an

opportunity of being present and of practically forcing the selection of

his own candidate.

The Church gained much in power during Stephen’s reign, and deserved the

power it gained, since it remained the only stable centre of good

government, while all other institutions crumbled around it. It was not

unnatural that churchmen should advance new claims, and we find them

adopting the watchword, afterwards so famous, “that the Church should be

free,” a vague phrase doubtless, destined to be embodied in Magna Carta.

The extent of immunity thus claimed was never clearly defined, and this

vagueness was probably intentional, since an elastic phrase might be

expanded to keep pace with the ever-growing pretensions of the Church.

Churchmen made it clear, however, that they meant it to include at the

least two principles—those rights afterwards known as “benefit of

clergy,” and “canonical election” respectively.

Henry II.’s attempt to force a clear definition, embodied in the

Constitutions of Clarendon in 1164, signally failed, chiefly through the

miscarriage of his plans consequent on the murder of Becket. Yet the

rights of the Church, although remaining theoretically unaltered from

the days of Stephen, felt the pressure directed by Henry’s energetic arm

against all claims of privilege. Rights, theoretically the same, shrank

to smaller practical limits when measured against the strength of Henry

as compared with the weakness of Stephen. Canonical election thus

remained at the close of the reign of Henry II. the same farce it had

been in the days of Henry I. The “election” lay with the chapter of the

vacant See; but the king told them plainly whom to elect. The other

rights of the Church as actually enjoyed at the close of the reign of

Henry Plantagenet were not far different from what had been set down in

the Constitutions of Clarendon, although these never received formal

recognition by Canterbury or by Rome. So matters stood between Church

and State when the throne of England was bequeathed by Henry to his

sons. It remained for John’s rash provocation, followed by his quick and

cowardly retreat, to compel a new definition of the frontier between the

spiritual and the temporal powers.

IV. Richard I. and John.

Henry II. before his death had fulfilled the task of restoring order, to

which destiny had called him. To effect this, he had brought to

perfection machinery of government of rare excellence, and equally well

adapted for purposes of taxation, of dispensing justice, and of general

administration. Great as was the power for good of this new instrument

in the hands of a wise and justice-loving king, it was equally powerful

for evil in the hands of an arrogant and unjust, or even of a careless

monarch. All the old enemies of the Crown had been crushed. Local

government, as now systematized, formed a source of strength, not of

weakness; while the Church, whose highest offices were now filled with

officials trained in Henry’s own Household and Exchequer (ecclesiastics

in name only, differing widely from saintly monks like Anselm), still

remained the fast friend of the Crown. The monarchy was strong enough to

defy any one section of the nation, and no inclination was yet apparent

among the estates of the realm to make common cause against the throne.

The very thoroughness with which the Crown had surmounted all its early

difficulties, induced in Henry’s successors, men born in the purple, an

exaggerated feeling of security, and a tendency to overreach themselves

by excessive arrogance. At the same time, the very abjectness of the

various factors of the nation, now prostrate beneath the heel of the

Crown, prepared them to sink their mutual suspicions and to form a tacit

alliance in order to join issue with their common oppressor. Powers used

moderately and on the whole for national ends by Henry, were abused for

purely selfish ends by his sons in succession. Richard’s heavy taxation

and contemptuous indifference to English interests gradually reconciled

men’s minds to thoughts of change, and prepared the basis of a combined

opposition to a power which threatened to grind all other powers to

powder.

In no direction were these abuses felt so severely as in taxation.

Financial machinery had been elaborated to perfection, and large

additional sums could be squeezed from every class in the nation by an

extra turn of the screw. Richard did not even require to incur the odium

of this, since the ministers, who were his instruments, shielded him

from the unpopularity of his measures, while he pursued his own good

pleasure abroad in war and tournament without even condescending to

visit the subjects he oppressed. Twice only, for a few months in each

case, did Richard visit England during a reign of ten years.

In his absence new methods of taxation were devised, and new classes of

property subjected to it; in especial, personal effects—merchandise and

other chattels—only once before (in 1187 for the Saladin tithe) placed

under contribution, were now made a regular source of royal revenue. The

isolated precedent of Henry’s reign was gladly followed when an

extraordinarily heavy burden had to be borne by the nation to produce

the ransom exacted for Richard’s release from prison. The very

heartiness with which England made sacrifices to succour the Monarch in

his hour of need, was turned against the tax-payers. Richard showed no

gratitude; and, being devoid of all kindly interest in his subjects, he

argued that what had been paid once might equally well be paid again.

Thus he formed exaggerated notions of the revenue to be extracted from

England. From abroad he sent demand after demand to his overworked

justiciars for ever-increasing sums of money. The chief lessons of the

reign are connected with this excessive taxation, and the consequent

discontent which prepared the way for the new grouping of political

forces under John.

Some minor lessons may be noted:

(1) In Richard’s absence the odium for his exactions fell upon his

ministers at home, who thus bore the burden meet for his own callous

shoulders, while he enjoyed an undeserved popularity by reason of his

bravery and achievements, exaggerated as these were by the halo of

romance which surrounds a distant hero. Thus may be traced some dim

foreshadowing of the doctrine of ministerial responsibility, although

such analogies with modern politics must not be pushed too far.

(2) Throughout the reign, many parts of Henry’s system, technical

details of taxation and reforms in the administration of justice, were

elaborated by Archbishop Hubert Walter. Principles closely connected

with trial by jury on the one hand and with election and representation

on the other were being quietly developed—destined to play an important

rôle in other ages.

(3) Richard is sometimes said to have inaugurated the golden age of

municipalities. Undoubtedly many charters still extant bear witness to

the lavish hand with which he granted, on paper at least, franchises and

privileges to the nascent towns. John Richard Green finds the true

interest of the reign not in the King’s Crusades and French wars, so

much as in his fostering care over the growth of municipal enterprise.

The importance of the consequences of such a policy is not diminished by

the fact that Richard acted from sordid motives—selling privileges, too

often of a purely nominal character, as he sold everything else which

would fetch a price.

The death of Richard on 6th April, 1199, brought with it at least one

important change; England was no longer to be governed by an absentee.

John, as impatient of control as he was incompetent, endeavoured to

shake himself free from the restraints of powerful ministers, and

determined to conduct the work of government in his own way. The result

was an abrupt end to the progress made in the previous reign towards

ministerial responsibility. The odium formerly exhausting itself on the

justiciars of Richard was now expended on John. While, previously, men

had sought redress in a change of minister, such vain expectations could

no longer deceive. A new element of bitterness was added to injuries

long resented, and the nobles who felt the pinch of heavy taxation were

compelled to seek redress in an entirely new direction. All the forces

of discontent played openly around the throne.

As is usual at the opening of a new reign, the discontented hoped that a

change of sovereign would bring some relief. The excessive taxation of

the late reign had been the result of exceptional circumstances. It was

expected that the new King would revert to the less burdensome scale of

his father’s financial measures. Such hopes were quickly disappointed.

John’s needs proved as great as Richard’s, and the money he obtained was

used for purposes that appealed to no one but himself. The excessive

exactions demanded both in money and in service, coupled with the

unpopular uses to which these were put, form the keynote of the whole

reign. They form also the background of Magna Carta.

The reign falls naturally into three periods; the years in which John

waged a losing war with the King of France (1199-1206), the quarrel with

the Pope (1206-13), the great struggle of John with the barons

(1213-16).

The first seven years were for England comparatively uneventful, except

in the gradual deepening of disgust with John and all his ways. The

continental dominions were ripe for losing, and John precipitated the

catastrophe by his injustice and dilatoriness. The ease with which

Normandy was lost shows something more than the incapacity of the King

as a ruler and leader—John Softsword as contemporary writers

contemptuously call him. It shows that the feudal army of Normandy had

come to regard the English Sovereign as an alien monarch, and refused to

fight in support of the rule of a foreigner. The unwillingness of the

English nobles to succour John actively has also its significance. The

descendants of the men who helped William I. to conquer England had now

lost all interest in the land from which they came. They were now purely

English landowners, and very different from the original Norman baronage

whose interests, like their estates, had been equally divided on both

sides of the Channel.

The death of Archbishop Hubert Walter in July, 1205, deprived King John

of the services of the most experienced statesman in England. It did

more, for it marked the termination of the long friendship between the

English Crown and the National Church. Its immediate effect was to

create a vacancy, the filling of which led to a bitter quarrel with

Rome.

John failed, as usual, to recognize the merits of abler men, and saw in

the death of his great Justiciar and Archbishop only the removal of an

unwelcome restraint, and the opening to the Crown of a desirable piece

of patronage. He prepared to strain to the utmost his rights in the

election of a successor to the See of Canterbury, in favour of one of

his own creatures, a certain John de Grey, already by royal influence

Bishop of Norwich. Unexpected opposition to his will was offered by the

canons of the Cathedral Church, who determined on a bold policy, namely,

to turn their nominal right of canonical election into a reality, and to

appoint their own nominee, without waiting either for the King’s

approval or the co-operation of the suffragan bishops of the Province,

who, during the last three vacancies, had put forth a claim to

participate in the election, and had invariably used their influence on

behalf of the King’s nominee. Reginald, the sub-prior, was secretly

elected by the monks, and hurried abroad to obtain confirmation at Rome

before the appointment was made public. Reginald’s vanity prevented his

keeping his pledge of secrecy, and a rumour reached the ear of John, who

brought pressure to bear on the monks, now frightened at their own

temerity, and secured de Grey’s appointment in a second election. The

Bishop of Norwich was actually enthroned at Canterbury, and invested by

the King with the temporalities of the See. All parties now sent

representatives to Rome. This somewhat petty squabble benefited none of

the original disputants; for the astute Innocent III. was quick to see

an opportunity for papal aggrandisement. Both elections were set aside

by decree of the Papal Curia, and the emissaries of the various parties

were coerced or persuaded to appoint there and then in the Pope’s

presence the Pope’s own nominee, a certain Cardinal, English-born, but

hitherto little known in England, Stephen Langton by name, destined to

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

John refused to view this triumph of papal arrogance in the light of a

compromise—the view diplomatically suggested by Innocent. The King, with

the hot blood common to his race, and the bad judgment peculiar to

himself, rushed headlong into a quarrel with Rome which he was incapable

of carrying to a successful issue. The details of the struggle, the

interdicts and excommunications hurled by the Pope, and John’s measures

of retaliation against the unfortunate English clergy, need not be

discussed, since they do not directly affect the main plot which

culminated at Runnymede.

John was not without some measure of sagacity of a selfish and

short-sighted sort, but was completely devoid of far-seeing statecraft.

One day he was to reap the fruits of this quarrel in bitter humiliation

and in the defeat of his most cherished aims; but, for the moment, the

breach with Rome seemed to lead to a triumph for the King. The papal

encroachments furnished him with a suitable pretext for confiscating the

property of the clergy. Thus his Exchequer was amply replenished, while

he was able for a time to conciliate his most inveterate opponents, the

Northern barons, by remitting during several years the hated burden of a

scutage, which, in other periods of his reign, tended to become a yearly

imposition. John had no intention, however, to forego his right to

resume the practice of annual scutages whenever it suited him to do so.

On the contrary, he executed a measure intended to make them more

remunerative in the future. This was the great Inquest of Service

ordered on 1st June, 1212.[4]

-----

Footnote 4:

See Round, _Commune of London_, 273. This measure is discussed _infra_

pp. 91-2.

-----

During these years, however, John temporarily relaxed the pressure on

his feudal tenants. His doing so failed to gain back any of their

goodwill, while he broadened the basis of future resistance by shifting

his oppressions to the clergy and through them to the poor.

Some incidents of the autumn of 1212 require brief notice, as well from

their own inherent interest as because they find an echo in the words of

Magna Carta. Serious trouble had arisen with Wales. Llywelyn (who had

married John’s natural daughter Joan, and had consolidated his power

under protection of the English King) now seized the occasion to cross

the border, while John was preparing his schemes for a new continental

expedition. The King changed his plans, and prepared to lead his troops

to Wales instead of France. A muster was summoned for September at

Nottingham, and John went thither to meet them. Before tasting meat, as

we are told in Roger of Wendover’s graphic narrative, he hanged

twenty-eight Welsh hostages, boys of noble family, whom he held as

sureties that Llywelyn would keep the peace.[5]

-----

Footnote 5:

R. Wendover, III. 239.

-----

Almost immediately thereafter, two messengers arrived simultaneously

from Scotland and from Wales with unexpected tidings. John’s daughter,

Joan, and the King of Scots, each independently warned him that his

English barons were prepared to revolt, under shelter of the Pope’s

absolution from their allegiance, and either to slay him or betray him

to the Welsh. The King dared not afford them so good an opportunity. In

a panic he disbanded the feudal levies; and, accompanied only by his

mercenaries, moved slowly back to London.[6]

-----

Footnote 6:

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

-----

Two of the barons, Robert Fitz-Walter, afterwards the Marshal of the

army which, later on, opposed John at Runnymede, and Eustace de Vesci,

showed their knowledge of John’s suspicions (if they did not justify

them) by withdrawing secretly from his Court and taking to flight. The

King caused them to be outlawed in their absence, and thereafter seized

their estates and demolished their castles.[7]

-----

Footnote 7:

From their possible connection with the wording of the famous chapter

39 of Magna Carta, it may be worth while to quote the exact words in

which Ralph de Coggeshall, _Chronicon Anglicanum_, p. 165, describes

this event, which he places (probably wrongly) in the year 1213.—“Rex

Eustachium de Vesci et Robertum filium Walteri, in comitatibus tertio

requisitos, cum eorum fautoribus utlaghiari fecit, castra eorum

subvertit, praedia occupavit.”

-----

These events of September, 1212, rudely shook John out of the false

sense of security in which he had wrapped himself a few months earlier.

In the Spring of the same year, he had still seemed to enjoy the full

tide of prosperity; and he must have been a bold prophet who dared to

foretell, as Peter of Wakefield did foretell, the speedy downfall of the

King—a prophecy the main purport of which (although not the details),

was actually accomplished.[8]

-----

Footnote 8:

See Miss Norgate, _John Lackland_, 170, and authorities there cited.

-----

John’s apparent security was deceptive; he had underestimated the powers

arrayed against him. Before the end of that year he had realized, in a

sudden flash of illumination, that the Pope was too strong for him,

circumstanced as he then was. It may well be that, if John’s throne had

rested on a solid basis of his subjects’ love, he might have defied with

impunity the thunders of Rome; but, although he was still an

unrestrained despot, his despotism now rested on a hollow foundation.

His barons, particularly the eager spirits of the north, refrained from

open rebellion merely until a fit opportunity should be offered them.

The papal excommunication of a King relieved his subjects of their oaths

of allegiance, and this might render their deliberate revolt dangerous

and perhaps fatal. At this critical juncture Innocent played his leading

card, inviting the King of France to act as the executor of the sentence

of excommunication against his brother King. John at once realized that

the time had come to make his peace with Rome.

Perhaps we should admire the sudden inspiration which showed the King

that his game had been played and lost, while we regret the humiliation

of his surrender, and the former blindness which could not see a little

way ahead.

On 13th May, 1213, John met Pandulf, the papal legate, and accepted

unconditionally his demands, the same which he had refused

contemptuously some months before. Full reparation was to be made to the

Church. Stephen Langton was to be received as archbishop in all honour

with his banished bishops, friends and kinsmen. All church property was

to be restored, with compensation for damage done. One of the minor

conditions of John’s absolution was the restoration to Eustace de Vesci

and Robert Fitz-Walter of the estates which they persuaded Innocent had

been forfeited because of their loyalty to Rome.[9]

-----

Footnote 9:

_Ibid._, 292–3.

-----

John’s humiliation did not stop even here. Two days later he resigned

the Crowns of England and Ireland, and received them again as the Pope’s

feudatory, promising to perform personal homage should occasion allow.

Such was the price which the King was now ready to pay for the Pope’s

active alliance against his enemies at home and abroad, the former

submission having merely bought off the excommunication. John hoped thus

to disentangle himself from his growing difficulties, and so to be free

to avenge himself on his baronial enemies. The surrender of the Crown

was embodied in a formal legal document which bears to be made by John,

“with the common council of our barons.” Were these merely words of

form? They may have been so when first used; yet two years later the

envoys of the insurgent barons claimed at Rome that the credit (so they

now represented it) for the whole transaction lay with them. Perhaps the

barons did consent to the surrender, thinking that to make the Pope lord

paramount of England would protect the inhabitants from the

irresponsible tyranny of John; while John hoped (with better reason as

events proved) that the Pope’s friendship would increase his ability to

work his evil will upon his enemies. In any case, no active opposition

or protest seems to have been raised by any one at the time of the

surrender. This step, so repugnant to later writers, seems not to have

been regarded by contemporaries as a disgrace. Matthew Paris, indeed,

writing in the next generation, describes it as “a thing to be detested

for all time”; but then events had ripened in Matthew’s day, and he was

a keen politician rather than an impartial onlooker.[10]

-----

Footnote 10:

The late Cardinal Manning in an article in the _Contemporary Review_

for December, 1875 (since published in book form), on the Pope and

Magna Carta, insists, probably with reason, that contemporary opinion

saw nothing disgraceful in the surrender, rather the reverse.

-----

Stephen Langton, now assured of a welcome to the high office into which

he had been thrust against John’s will, landed at Dover and was received

by the King at Winchester on 20th July, 1213. John swore on the Gospels

to cherish and defend Holy Church, to restore the good laws of Edward,

and to render to all men their rights, repeating practically the words

of the coronation oath. In addition, he promised to make reparation for

all property taken from the Church or churchmen. This oath, with its

accompanying promise, was the condition on which he was to be absolved,

provisionally by Langton, and more formally by a legate, to be sent from

Rome specially for that purpose.

V. The Years of Crisis, 1213–15.

For a brief season after John had made his peace with Rome, he seemed to

enjoy substantial fruits of his diplomacy. Once more the short-sighted

character of his abilities was illustrated; a brief triumph led to a

deeper fall. The King for the moment considered, with some show of

reason, that he had regained the mastery of his enemies at home and

abroad. Philip’s threatened invasion had to be abandoned; the people

renewed their allegiance on the removal of the papal sentence; the

barons had to reconcile themselves as best they could, awaiting a better

opportunity to rebel. If John had confined himself to home affairs, he

might have postponed the final explosion: he could not, however,

reconcile himself to the loss of the great continental heritage of his

ancestors. His attempts to recover Normandy and Anjou, partly by force

of arms and partly by a great coalition, led to new exactions and new

murmurings, while they ended in complete failure, which left him,

discredited and penniless, at the mercy of the malcontents at home.

His projected campaign in Poitou would require all the levies he could

raise. More than once John demanded, and his barons refused, their

feudal service. Many excuses were put forward. At first they declined to

follow a King who had not yet been fully absolved. Yet when Archbishop

Stephen, on 20th July, 1213, removed the papal censure from John at

Winchester, after exacting promises of good government, the northern

barons still refused. Their new plea was that the tenure on which they

held their lands did not compel them to serve abroad. They added that

they were already exhausted by expeditions within England.[11]

-----

Footnote 11:

R. Coggeshall, p. 167.

-----

John took this as open defiance, and determined, with troops at his back

(_per vim et arma_), to compel obedience.

Before his preparations were completed, an important assembly had met at

St. Albans (on 4th August) to make sworn inquest as to the extent of

damage done to churchmen during the years of John’s quarrel with Rome.

The meeting is notable, not merely because of the reason of its summons,

but also because of its composition. It is the earliest national council

in which the principle of representation received recognition (so far as

our records go).[12] Four lawful men, with the reeve, from each village

or manor on the royal demesne, were present, but only, it must be

remembered, in a very mean capacity—only to make a sworn inquest as to

the amount of damage done. Such inquests by the humble representatives

of the villages were quite common locally; the innovation lies in this,

that their verdict was now given in a national assembly. Directions were

issued in the King’s name from the same meeting, commanding sheriffs,

foresters, and others to observe the laws of Henry I. and to abstain

from unjust exactions, as they valued their limbs and lives.[13]

-----

Footnote 12:

Stubbs, _Const. Hist._, I. 566.

Footnote 13:

R. Wendover, III. 261-2.

-----

On 25th August, after John had set out with his mercenaries to punish by

force of arms the refusal of his northern magnates to follow him to the

Continent, as he held them bound to do in terms of their feudal

obligations, Stephen Langton held a meeting with the great men of the

south. Many bishops, abbots, priors and deans, together with some lay

magnates of the southern counties, met him at St. Paul’s, London. The

ostensible object of this assembly was to determine what use the

Archbishop should make of his power to grant partial relaxation of the

interdict still casting its blight over England—which could not be

finally lifted until the legate arrived with fuller powers. If we may

believe Roger of Wendover, more important business was transacted in the

King’s absence. Stephen reminded the magnates that John’s absolution had

been conditional on a promise of good government, and as a standard to

guide them in judging what such government implied, he produced a copy

of Henry I.’s Charter of Liberties. All present swore to “fight for

those liberties, if it were needful, even unto death.” The Archbishop

promised his help, “and a confederacy being thus made between them, the

conference was dissolved.”[14]

-----

Footnote 14:

Roger of Wendover, III. 263-6. Blackstone (_Great Charter_,

Introduction, p. vi.), makes the apposite comment that it seems

unlikely that the discovery by the Archbishop of a charter probably

already well known “should be a matter of such novelty and triumph.”

-----

Stephen Langton, however, desired a peaceable solution if possible, and

three days later we find him, after a somewhat hurried journey, at

Northampton, on the 28th of August, striving earnestly, and with

success, to avert civil war between John and the recalcitrant Crown

tenants in the north.

His line of argument is worthy of especial note. The King, he urged,

must not levy war on his subjects before he had obtained a legal

judgment against them. The substance of this advice should be compared

with the terms of chapter 39 of Magna Carta. John resented the

interference of Stephen in lay matters, and continued his march to

Nottingham; but threats of fresh excommunications caused him at length

to consent to substitute legal process for violence, and to appoint a

day for the trial of the defaulters before the _Curia Regis_—a trial

which never took place.[15]

-----

Footnote 15:

R. Wendover, III. 262-3.

-----

John apparently continued his journey as far north as Durham, but

returned to meet the new papal legate Nicholas, to whom he performed the

promised homage and repeated the formal act of surrender in St. Paul’s

on 3rd October.[16] Having thus completed his alliance with the Pope, he

was confident of worsting his enemies in France and England. As most, if

not all, of the great magnates were against him, he saw that it would be

well to strengthen his position by support of the class beneath them in

the feudal scheme of society. Perhaps it was this that led John to

broaden the basis of the national assembly. The great Council which met

at Oxford on 15th November, 1213, was made notable by the presence, in

addition to the Crown tenants, of representatives of the various

counties. The sheriffs, in the words of the King’s writs, were to cause

to assemble all knights already summoned (that is, the Crown tenants)

and four discreet men of each county “_ad loquendum nobiscum de negotiis

regni nostri_.” Miss Norgate[17] lays stress on the fact that these

writs were issued after the death of the great Justiciar Geoffrey

Fitz-Peter, and before any successor had been appointed. John, she

argues, acted on his own initiative, and is thus entitled to the credit

of being the first statesman to introduce representatives of the

counties into the national assembly. The importance of this precedent

need not be obscured by the selfish nature of the motives to which it

was due. Knights who were tenants of mesne lords (Miss Norgate says

“yeomen”) were invited to act as a counterpoise to the barons. This

innovation anticipated the line of progress afterwards followed by de

Montfort and Edward I. Compared with it, the often-praised provisions of

chapter 14 of Magna Carta must be regarded as antiquated and even

reactionary.

-----

Footnote 16:

The charter recording this act may be read in _New Rymer_, I. 115. It

was sealed not in perishable wax, but in solid gold.

Footnote 17:

_John Lackland_, 195.

-----

In the early spring of 1214, John considered his home troubles ended,

and that he was now free to use against France the coalition formed by

his diplomacy. He went abroad early in February, leaving Peter des

Roches, the unpopular Bishop of Winchester, to keep the peace as

Justiciar, and to guard his interests, in concert with the papal legate.

Although deserted by the northern barons, John relied partly on his

mercenaries, but chiefly on the Emperor Otto and his other powerful

allies. Fortune, always fickle, favoured him at first, only to ruin all

his schemes more completely in the end. The crash came on Sunday, 27th

July, 1214, when the King of France triumphed over the allies at the

decisive battle of Bouvines. Three months later, John was compelled to

sign a five years’ truce with Philip, abandoning all pretensions to

recover his continental dominions.

He had left enemies at home more dangerous than those who conquered him

at Bouvines—enemies who had been watching with trembling eagerness the

vicissitudes of his fortunes abroad. His earlier successes struck dismay

into the malcontents in England, apprehensive of the probable sequel to

his triumphant return home. They waited with anxiety, but not in

idleness, the culmination of his campaign, wisely refraining from open

rebellion until news reached them of his failure or success. Meanwhile,

they quietly organized their programme of reform and their measures of

resistance. John’s strenuous endeavours to exact money and service,

while failing to fill his Exchequer as he hoped, had ripened dormant

hostility into an active confederacy organized for resistance. When

England learned the result of the battle, the barons felt that the

moment for action had arrived.

Even while abroad, John had not relaxed his efforts to wring exactions

from England. Without consent or warning, he had imposed a scutage at

the unprecedented rate of three marks on the knight’s fee. Writs for its

collection had been issued on 26th May, 1214, an exception being indeed

allowed for tenants personally present in the King’s army in Poitou. The

northern barons, who had already refused to serve in person, now refused

likewise to pay the scutage. This repudiation was couched in words

particularly bold and sweeping; they denied liability to follow the King

not merely to Poitou, but to any part of the Continent.[18]

-----

Footnote 18:

See W. Coventry, II. 217, _dicentes se propter terras quas in Anglia

tenent non debere regem extra regnum sequi nec ipsum euntem scutagio

juvare_. The legality of this contention is discussed _infra_, pp.

83-6.

-----

When John returned, in the middle of October, 1214, he found himself

confronted with a crisis unique in English history. During his absence,

the opponents of his misrule had drawn together, formulated their

grievances, and matured their plans. The embarrassments on the Continent

which weakened the King, heartened the opposition. The northern barons

took the lead. Their cup of wrath, which had long been filling,

overflowed when the scutage of three marks was imposed. Within a

fortnight of his landing, John held an interview with the malcontents at

Bury St. Edmunds (on 4th November, 1214).[19] No compromise was arrived

at. John pressed for payment of the scutage, and the barons refused.

-----

Footnote 19:

See Miss Norgate, _John Lackland_, p. 221.

-----

It seems probable that, after John’s retiral, a conference of a more

private nature was held at which, under cloak of attending the Abbey for

prayer, a conspiracy against John was sworn. Roger of Wendover gives a

graphic account of what happened. The magnates came together “as if for

prayers; but there was something else in the matter, for after they had

held much secret discourse, there was brought forth in their midst the

charter of King Henry I., which the same barons had received in London

... from Archbishop Stephen of Canterbury.”[20] A solemn oath was taken

to withdraw their fealty (a threat actually carried into effect on 5th

May of the following year), and to wage war on the King, unless he

granted their liberties; and a date—soon after Christmas—was fixed for

making their formal demands. Meanwhile they separated to prepare for

war. The King also realized that a resort to arms was imminent. While

endeavouring to collect mercenaries, he tried unsuccessfully to sow

dissension among his opponents. In especial, he hoped to buy off the

hostility of the Church by a separate charter which he issued on 21st

November. This professes to be granted “of the common consent of our

barons.” Its object was to gratify the Church by turning canonical

election from a sham into a reality. The election of prelates, great and

small, should henceforward be really free in all cathedral and

conventual churches and monasteries, saving to the Crown the right of

wardship during vacancies. John promised never to deny or delay his

consent to an election, and conferred powers on the electors, if he

should do so, to proceed without him. The King was bitterly disappointed

in his hope that by this bribe he would bring over the national Church

from the barons’ side to his own.

-----

Footnote 20:

R. Wendover, III. 293.

-----

John was probably well aware of what took place at St. Edmunds after he

had left, and he also knew that the close of the year was the time fixed

for the making of demands. He held what must have been an anxious

Christmas at Worcester (always a favourite resting-place of this King),

but tarried only for a day, hastening to the Temple, London, where the

proximity of the Tower would give him a feeling of security. There, on

6th January, 1215, a deputation from the insurgents met him without

disguising that their demands were backed by force. These demands, they

told him, included the confirmation of the laws of King Edward, with the

liberties set forth in Henry’s Charter.

On the advice of the Archbishop and the Marshal, who acted as mediators,

John asked a truce till Easter, which was granted in return for the

promise that he would then give reasonable satisfaction. The Archbishop,

the Marshal, and the Bishop of Ely were named as the King’s securities.

On 15th January, John re-issued the Charter to the Church, and demanded

a renewal of homage from all his subjects. The sheriffs in each county

were instructed to administer the oath in a specially stringent form;

all Englishmen must now swear to “stand by him against all men.”

Meanwhile emissaries were dispatched by both sides to Rome. Eustace de

Vesci, as spokesman of the malcontents, asked Innocent, as overlord of

England, to compel John to restore the ancient liberties, and claimed

consideration on the ground that John’s surrender to the Pope had been

made under pressure put on the King by them—all to no effect. John

thought to propitiate the Pope by taking the cross, a politic measure

(the date of which is given by one authority as 2nd February, and by

another as 4th March), which would also serve to protect him against

personal violence, and which afforded him, as is well illustrated by

several chapters of Magna Carta, a fertile excuse for delay in remedying

abuses. In April, the northern barons, convinced that the moment for

action had arrived, met in arms at Stamford, and after Easter (when the

truce had expired) marched southward to Brackley, in Northampton. There

they were met, on 27th April, by the Archbishop and the Marshal, as

emissaries from the King, who demanded what they wanted. They received

in reply, and took back with them to John, a certain schedule, which

consisted for the most part of ancient laws and customs of the realm,

with an added threat that if the King did not immediately adhibit his

seal the rebels would constrain him by seizing his castles, lands, and

goods.[21]

-----

Footnote 21:

R. Wendover, III. 298.

-----

This schedule may be regarded as a rough draft of the document more

fully drawn out six weeks later, commonly known as the Articles of the

Barons.[22]

-----

Footnote 22:

Is it not possible that the so-called “unknown charter of Liberties”

(see _infra_ under Part V. and Appendix) was the very schedule

mentioned by Wendover? It was drawn up in the form of a charter, so as

to be ready for the immediate imprint of the seal they demanded.

-----

John’s answer, when he read these demands, was emphatic. “Why do not the

barons, with these unjust exactions, ask my kingdom?” Then furious, he

declared with an oath that he would never grant them such liberties,

whereby he would make himself a slave.[23]

-----

Footnote 23:

R. Wendover, III. 298.

-----

On 5th May the barons formally renounced allegiance[24] and chose as

commander, Robert Fitz-Walter, who styled himself piously and

grandiloquently, “Marshal of the army of God and Holy Church.”

-----

Footnote 24:

Blackstone, _Great Charter_, p. xiii., citing the _Annals of

Dunstable_ (p. 43), says they were absolved at Wallingford by a Canon

of Durham.

-----

The insurgents, still shivering on the brink of civil war, delayed to

march southwards. Much would depend on the attitude of London, with its

wealth and central position; and John bade high for the support of its

citizens. On 9th May a new charter[25] was granted to the Londoners, who

now received a long-coveted privilege, the right to elect their mayor

annually and to remove him at the year’s end. This marked the

culmination of a long series of progressive grants in their favour.

Previously the mayor had held office for life, and Henry Fitz-Aylwin,

the earliest holder of the office (appointed perhaps in 1191), had died

in 1213.

-----

Footnote 25:

The Charter appears _Rot. Chart._, p. 207. _Cf._ under chapter 13

_infra_, where the rights of the Londoners are discussed.

-----

Apparently no price was paid for this charter; but John doubtless

expected in return the grateful support of the Londoners, exactly as he

had expected the support of churchmen when he twice granted a charter in

their favour. In both instances he was disappointed. Next day he made,

probably as a measure of delay, an offer of arbitration to the barons.

In the full tide of military preparations, he issued a writ in these

words: "Know that we have conceded to our barons who are against us that

we shall not take or disseise them or their men, nor go against them

_per vim vel per arma_, unless by the law of our land, or by the

judgment of their peers _in curia nostra_, until consideration shall

have been made by four whom we shall choose on our part and four whom

they shall choose on their part, and the lord Pope who shall be oversman

over them"—words worthy of careful comparison with those used in chapter

39 of Magna Carta. The offer could not be taken seriously, since it left

the decision of every vital issue virtually to the Pope, whom the barons

distrusted.[26]

-----

Footnote 26:

The writ is given in _Rot. Pat._, 1. 141, and also in _New Rymer_, I.

128.

-----

Another royal writ, of two days later date, shows a rapid change of

policy, doubtless due to the contemptuous rejection of arbitration. On

12th May, John ordered the sheriffs to do precisely what he had offered

not to do. They were told to take violent measures against the rebels

without waiting for a “judgment of peers” or other formality. Lands,

goods, and chattels of the King’s enemies were to be seized and applied

to his benefit.[27]

-----

Footnote 27:

For writ, see _Rot. Claus._, 204.

-----

The barons, rejecting all offers, marched by Northampton, Bedford, and

Ware, towards the capital. London, in spite of the charter received

eight days earlier, boldly threw in its lot with the insurgents, to whom

it opened its gates on 17th May.[28] The example of London was quickly

followed by other towns and by many hesitating nobles. The confederates

felt strong enough to issue letters to all who still adhered to the

King, bidding them forsake him on pain of forfeiture.

-----

Footnote 28:

Some authorities give 24th May as the date. It must have been the

17th; since _New Rymer_, p. 121, under the date of 18th May, prints a

writ of John, informing Rowland Blaot of the surrender of London to

the barons. This was followed on 20th May (_N.R._, p. 121) by another

royal writ, ordering all bailiffs and other faithful, to molest the

Londoners in every way possible.

-----

John found himself, for the moment, without power of effective

resistance; and, probably with the view of gaining time rather than of

committing himself irretrievably to any abatement of his prerogatives,

agreed to meet his opponents. As a preliminary to this, on 8th June he

issued a safe-conduct for the barons’ representatives to meet him at

Staines within the three days following. This was apparently too short

notice, as on 10th June, John, now at Windsor, granted an extension of

the time and safe-conduct till Monday, 15th June. William the Marshal

and other envoys were dispatched from Windsor to the barons in London

with what was practically a message of surrender. The barons were told

that John “would freely accede to the laws and liberties which they

asked,” if they would appoint a place and day for a meeting. The

intermediaries, in the words of Roger of Wendover,[29] "without guile

carried back to the barons the message which had been guilefully imposed

on them"—implying that John meant to make no promises, except such as

were insincere. Yet the barons, _immenso fluctuantes gaudio_, fixed as

the time of meeting the last day of the extended truce, Monday, 15th

June, at a certain meadow between Staines and Windsor, known as

Runnymede.

-----

Footnote 29:

III. 301.

-----

VI. Runnymede, and after.

On 15th June the King and the Barons met. On the side of the insurgents

appeared a great host; on the monarch’s, merely a small band of

magnates, loyal to the person of the King, but only half-hearted, at the

best, in his support. Their names may be read in the preamble to the

Charter: the chief among them, Stephen Langton, still nominally neutral,

was known to be in full sympathy with the rebels.

Dr. Stubbs,[30] maintaining that the whole baronage of England was

implicated in these stirring events, gives a masterly analysis of its

more conspicuous members into four great groups: (1) the Northumbrani or

Norenses of the chroniclers, names famous in the northern counties, who

had been the first to raise the standard of open revolt, and retained

the lead throughout; (2) the other nobles from all parts of England, who

had shown themselves ready from an early date to co-operate with the

Northerners—“the great baronial families that had been wise enough to

cast away the feudal aspirations of their forefathers, and the rising

houses which had sprung from the ministerial nobility”; (3) the moderate

party who, ready to worship the rising sun, deserted John after London

had joined the rebels, including even the King’s half-brother (the Earl

of Salisbury), the loyal Marshal, Hubert de Burgh, and other ministers

of the Crown, whose names may be read in the preamble to the Charter;

and (4) the tools of John’s misgovernment, mostly men of foreign birth,

tied to John by motives of interest as well as by personal loyalty,

since their differences with the baronial leaders lay too deep for

reconciliation, most of whom are branded by name in Magna Carta as for

ever incapable of holding office in the realm. These men of desperate

fortunes alone remained whole-hearted on John’s side when the crisis

came.[31]

-----

Footnote 30:

_Const. Hist._, I. 581-3.

Footnote 31:

The individual names may be read in Stubbs, _Ibid._; and readers in

search of biographical knowledge are referred to Bémont, _Chartes_,

39–40, and for fuller, though less reliable information, to Thomson,

_Magna Charta_, 270–322.

-----

When the conference began, the fourth group was not near John, being

otherwise occupied in the command of castle garrisons or of troops

actually in the field; the third group, a small one, was with him; and

the first and second groups were, in their imposing strength, arrayed

against him.

Unfortunately, the vagueness of contemporary accounts prevents us from

reproducing with certainty the progress of negotiations on that eventful

15th of June and the few days following. Some inferences, however, may

be drawn from the words of the completed Charter itself and from those

of several closely related documents. One of these, the Articles of the

Barons,[32] is sometimes supposed to be identical in its terms with the

Schedule which had been already presented to the King’s emissaries, at

Brackley, on the 27th of April.[33] It is more probable, however, that

during the seven eventful weeks which had since elapsed, the original

demands had been somewhat modified. It is not unlikely that the interval

had been employed in making the terms of the suggested agreement more

full and specific. The Schedule of April was probably only a rough draft

of the Articles as we know them, and these formed in their turn the new

draft on which the completed Charter was based. Articles and Charter are

alike authenticated with the impress of the King’s great seal, an

indisputable proof that the terms of each of them actually received his

official consent.

-----

Footnote 32:

See Appendix.

Footnote 33:

See _supra_, p. 40.

-----

This fact affords a strong presumption that an interval must have

elapsed between the King’s acceptance of the first and the final

completion of the second; since it would have been absurd to seal what

was practically a draft at the same time as the principal instrument.

The probability of such an interval must not be lost sight of in any

attempt to reconstruct in chronological sequence the stages of the

negotiations at Runnymede.

A few undoubted facts form a starting-point on which inferences may be

based. John’s headquarters were fixed at Windsor from Monday, 15th June,

to the afternoon of Tuesday the 23rd. On each of these nine days (with

the possible exception of the 16th and 17th) he visited Runnymede to

confer with the barons.[34]

-----

Footnote 34:

So far there can be no doubt. Either on the _Close Rolls_ or on the

_Patent Rolls_ (q.v.) copies of one or more writs are preserved dated

from Windsor on each of these days, and also one or more dated from

Runnymede on 15th, 18th, 19th, 20th, 21st, 22nd, and 23rd June.

-----

Two crucial stages in these negotiations were clearly reached on Monday

the 15th (the date borne by Magna Carta itself) and on Friday the 19th

(the day on which John in more than one writ stated that peace had been

concluded). What happened exactly on each of these two days is, however,

to some extent, matter of conjecture. It is here maintained, with some

confidence, that on Monday the substance of the barons’ demands was

provisionally accepted and that the Articles were then sealed; while on

Friday this arrangement was finally confirmed and Magna Carta itself, in

several duplicates, was sealed.

To justify these inferences, a more detailed examination of the evidence

available will be necessary. The earliest meeting between John and the

baronial leaders, all authorities are agreed, took place on Monday, 15th

June, probably in the early morning. The barons undoubtedly came to the

conference provided with an accurate list of those grievances which they

were determined to have redressed. On the previous 27th of April the

rebels had sent a written Schedule to the King, along with a demand that

he should signify his acceptance by affixing his seal;[35] they are not

likely to have been less fully prepared on 15th June.

-----

Footnote 35:

R. Wendover, III. 298.

-----

John, on his part, would naturally try a policy of evasions and delays;

and, when these were clearly useless, would then endeavour to secure

modifications of the terms offered. These tactics met with no success.

His opponents demanded a plain acceptance of their plainly expressed

demands. Before nightfall, John, overawed by their firmness and by the

numbers of the armed force behind them, was constrained to surrender.

Leaving minor points of detail to be subsequently adjusted, he

provisionally accepted the substance of the long list of reforms put

before him by the barons, on the understanding that they would renew

their allegiance and give him some security that they would keep the

peace. In proof of this bargain, the heads of the agreement were rapidly

engrossed on parchment to the number of forty-nine, and the great seal

was impressed on the wax of the label, where it may still be seen.[36]

-----

Footnote 36:

In the British Museum. See _infra_ under Part V.

-----

The parchment containing these Articles of the Barons may have been the

identical Schedule actually prepared by the rebel leaders previous to

the meeting; but, more probably, it was written out at Runnymede during

the conference on the 15th (or between two conferences on that day) by

one of the clerks of the royal Chancery. This is more in keeping with

its heading (written in the same hand, and apparently at the same time

as the body of the deed), _Ista sunt capitula quae barones petunt et

dominus rex concedit_.

Likely enough, it followed closely the words of the baronial Schedule;

but it may have contained some slight modifications in favour of the

Crown. One such, at least, was inserted, apparently as an afterthought

(on the intervention of the King perhaps, or one of his friends);

articles 45 and 46, as originally conceived, have been subsequently

connected by a rude bracket, and a qualifying proviso added which

practically bestowed on the Archbishop the powers of an arbitrator to

determine whether both articles should be altered in favour of the Crown

or no.[37] The entire document is in a running hand, and appears to have

been rapidly though carefully written. Its engrossment upon parchment

with a quill pen must have occupied several hours; but a diligent

copyist would not find it beyond his powers to complete the task in one

day.

-----

Footnote 37:

Cf. Blackstone, _Great Charter_, xvii.: "subjoined in a more hasty

hand, ... as if added at the instance of the King’s commissioners upon

more mature deliberation."

-----

Tuesday, Wednesday and Thursday were consumed in further negotiations as

to matters of detail; in reducing the heads of agreement already

accepted to the more binding form of a feudal charter; and in engrossing

several copies for greater security. Everything was, however, ready for

a final settlement on Friday the 19th. At the conference held on that

day the conclusion of the final concord probably included several steps;

among others, the nomination by the opposition, with the King’s tacit

acquiescence, of twenty-five barons to act as Executors under chapter

61,[38] the solemn sealing and delivery of several original copies of

the Great Charter in its final form, the taking of an oath by all

parties to abide by its provisions, and the issue of the first batch of

writs of instructions to the sheriffs.

-----

Footnote 38:

See _infra_ under that chapter.

-----

Blackstone[39] thinks that the barons on that day renewed their oaths of

fealty and homage. It is more probable that, until John had actually

carried out the more pressing reforms promised in Magna Carta, they

refused formally to swear allegiance, undertaking, however, in the

hearing of the two archbishops and other prelates, that they would keep

the peace and furnish security to that effect in any form that John

might name, except only by delivery of their castles or of hostages.[40]

-----

Footnote 39:

_Great Charter_, p. xxiv.

Footnote 40:

See Protest of Archbishops _infra_, p. 52.

-----

The statement that Friday, 19th June, was the day on which peace was

finally concluded rests on unmistakable evidence. On 21st June, John

wrote from Windsor to William of Cantilupe, one of his captains,

instructing him not to enforce payment of any unpaid balances of

“tenseries”[41] demanded since the preceding Friday, “on which day peace

was made between the King and his barons.”[42]

-----

Footnote 41:

Mr. Round explains this word in a learned appendix (_Geoffrey de

Mandeville_, p. 414) to mean “blackmail,” _i.e._ “money extorted under

pretence of protection or defence.”

Footnote 42:

See _Rot. Claus._, p. 225 (17 John membrane 31). The evidence of this

writ does not stand alone. In another writ on the same membrane of the

_Close Rolls_, dated 19th June, John informs his half-brother, the

Earl of Salisbury, that he has concluded peace, and instructs him to

restore certain lands and castles immediately, as this had been made a

condition of peace. See also the writ to Stephen Harengod _infra_, p.

49.

-----

It has been taken for granted by many historians that the peace was

finally concluded, and the Great Charter actually sealed and issued on

the 15th, not on the 19th.[43] The fact that all four copies of Magna

Carta still extant bear this date seems to have been regarded as

absolutely conclusive on this point. Experts in diplomatics, however,

have long been aware that elaborate charters and other documents, which

occupied a considerable time in preparation, usually bore the date, not

of their actual execution, but of the day on which were concluded the

transactions of which they form the record. Legal instruments were thus

commonly ante-dated (as it would be reckoned according to modern legal

practice). Thus it is far from safe to infer from Magna Carta’s mention

of its own date that the great seal was actually adhibited on the 15th

June.

-----

Footnote 43:

Blackstone, however (_Great Charter_, xv.), speaks of a “conference

which lasted for several days, and did not come to a conclusion till

Friday, the 19th June.”

-----

Such presumption as exists points the other way. The Great Charter is a

lengthy and elaborate document, and it is barely possible that any one

of the four originals known to us could have been engrossed (to say

nothing of the adjustment of the substance and form) within one day. Not

only is it much longer than the Articles on which it is founded; but

even the most casual comparison will convince any unbiassed mind of the

slower rate of engrossment of the Charter. All four copies show marks of

great deliberation, while those at Lincoln and Salisbury in particular

are exquisite models of leisurely and elaborate penmanship. The highly

finished initial letters of the first line and other ornamental features

may be instructively compared with the plain, business-like, rapid hand

of the Articles. How many additional copies now lost were once in

existence bearing the same date, it is impossible to say; but each of

those still extant may well have occupied four days in the writing.[44]

-----

Footnote 44:

Miss Norgate, _John Lackland_, p. 234, acquiesces in the view

generally received, fixing Monday as the day on which the final

concord was arrived at, but she relies for evidence on a more than

doubtful interpretation of what is undoubtedly an error in the copy of

a writ by King John appearing on the _Patent Rolls_. This writ, which

as copied in the _Rolls_ bears to be dated 18th June (erroneously as

will immediately be shown), is addressed to Stephen Harengod (in terms

closely resembling those of the writ already cited from the _Close

Rolls_ addressed to William of Cantilupe), announcing _inter alia_

that terms of peace had been agreed upon “last Friday.” Miss Norgate

contends with reason that there must be a mistake somewhere, since on

the Friday preceding the 18th, negotiations had not even begun. She is

confident that "the ‘die Veneris’ which occurs three times in the writ

is in each case an unquestionable, though unaccountable, error for

‘die Lunae.’" Yet, it is unlikely that a scribe writing three days

after so momentous an event could have mistaken the day of the week.

It is infinitely more probable that in writing xxiij. he formed the

second “x” so carelessly that it was mistaken by the enrolling clerk

for a “v.” The correct date is thus the 23rd, and the reference is to

Friday the 19th. This presumption becomes a certainty by comparison

with the words of the writ to William of Cantilupe, dated the 21st (of

the existence of which Miss Norgate was probably not aware).

A comparison between the two documents shows few changes of importance

in the tenor.[45]

-----

Footnote 45:

Blackstone, _Great Charter_, xviii., has given a careful analysis of

the points of difference.

-----

The one outstanding addition is the insertion, in an emphatic form, both

at the beginning and at the end of the Charter, of a general declaration

in favour of the freedom and rights of the Church. The inference seems

to be that a new influence was brought to bear, between the preparation

of the draft and that of the Charter. It was the Archbishop of

Canterbury and his friends who thus converted the original baronial

manifesto into something more nearly resembling a declaration of rights

for the nation at large. One or two minor alterations seem slightly to

benefit the Crown,[46] while several others, rightly viewed, suggest an

influence at work unfavourable to the towns and trading classes.[47]

-----

Footnote 46:

_E.g._ chapters 48 and 52. For alterations directed against the

trading classes, see chapters 12, 13, 35, and 41 _infra_.

Footnote 47:

Miss Norgate, _John Lackland_, 233, takes a different view, holding

that the influence of Stephen Langton dates from an earlier period.

The original articles “are obviously not the composition of the barons

mustered under Robert Fitz-Walter,” who could never have risen to “the

lofty conception embodied in the Charter—the conception of a contract

between King and people which should secure equal rights to every

class and every individual in the nation.” The correctness of this

estimate is discussed _infra_.

-----

In addition to the various originals of the Charter issued under the

great seal, chapter 62 provides that authenticated copies should be made

and certified as correct by “Letters Testimonial,” under the seals of

the two archbishops with the legate and the bishops. This was done, but

the exact date of their issue is unknown.[48]

-----

Footnote 48:

No specimen of these Letters Testimonial is known to exist, but a copy

is preserved on folio 234 of the _Red Book of the Exchequer_. See

Appendix.

-----

The same Friday which thus saw the completion of negotiations saw also

the issue of the first batch of letters of instructions to the various

sheriffs, telling them that a firm peace had been concluded, by God’s

grace, between John and the barons and freemen of the kingdom, as they

might hear and see by the Charter which had been made, and which was to

be published throughout the district, and firmly observed. Each sheriff

was further commanded to cause all in his bailiwick to make oath

according to the form of the Charter to the twenty-five barons or their

attorneys, and further, to see to the appointment of twelve knights of

the county in full County Court, in order that they might declare upon

oath all evil customs requiring to be reformed, as well of sheriffs as

of their servants, foresters, and others.[49] This was held to apply

chiefly to the redress of forest grievances.

-----

Footnote 49:

See _Rot. Pat._, I. 180, and _Select Charters_, 306–7.

-----

Apparently, four days elapsed before similar letters, accompanied by

copies of the Charter, could be sent to every sheriff. During the same

few days, several writs (some of which have already been mentioned) were

dispatched to military commanders with orders to stop hostilities. A few

writs, dated mostly 25th June, show that some obnoxious sheriffs had

been removed to make way for better men. Hubert de Burgh, a moderate

though loyal adherent, and a man generally respected, was appointed

Justiciar in room of the hated Peter des Roches. On 27th June, another

writ directed the sheriffs and the elected knights to punish, by

forfeiture of lands and chattels, all those who refused to swear to the

twenty-five Executors within a fortnight. All these various instructions

may be regarded as forming part of the settlement of the 19th of June,

and were dispatched with the greatest rapidity possible.

Even after the settlement arrived at on Friday, some minor points of

dispute remained. The barons refused to be satisfied without substantial

security that the reforms and restorations agreed on would be carried

out by the King; they demanded that both the city of London and the

Tower of London should be left completely under their control as pledges

of John’s good faith, until 15th August, or longer, if the reforms had

not then been completed. John obtained a slight modification of these

demands; he surrendered the city of London to his opponents, as they

asked; but placed the Tower in the neutral custody of the Archbishop of

Canterbury. These conditions were embodied in a supplementary treaty,

which describes itself as _Conventio facta inter Regem Angliae et

barones ejusdem regni_.[50] If the barons distrusted John, he was

equally distrustful of them, demanding the security they had promised

for fulfilment of their part of the original compact. He now asked a

formal charter in his favour that they would observe the peace and their

oaths of homage, which they point-blank refused to grant. The King

appealed to the prelates without effect. The archbishops, with several

suffragans, however, put a formal protest on record of the barons’

promise and subsequent refusal to keep it.[51]

-----

Footnote 50:

_New Rymer_, I. 133. See Appendix. It is undated, but must be later

than the letters to sheriffs concerning election of twelve knights, to

which it alludes.

Footnote 51:

_Rot. Pat._, p. 181. As we have to depend for our knowledge of this

important protest on one copy, engrossed on the back of a membrane of

an official roll (No. 18 of John’s 17th year), it is possible to doubt

its genuineness; but it is unlikely to be purely a forgery.

-----

The two archbishops and their brother prelates entered a second protest

of a different nature. They seem to have become alarmed by the drastic

measures adopted or likely to be adopted, founded on the verdicts of the

twelve knights elected in each county to carry into effect the various

clauses of the Great Charter directed against abuses of the Forest laws.

Apparently, it was feared that reforms of a sweeping nature would

result, and practically abolish the royal forests altogether.

Accordingly, they placed their protest formally on record—acting

undoubtedly in the interests of the Crown, feeling that as mediators

they were bound in some measure to see fairplay. They objected to a

strained construction of the words of the Charter, holding that the

articles in question ought to be understood as limited; all customs

necessary for the preservation of the forests should remain in

force.[52]

-----

Footnote 52:

See _Rot. Pat._ and _New Rymer_, I. 134.

-----

The provisions referred to were, as is now well known, chapters 47, 48,

and 53 of Magna Carta itself, and not, as Roger of Wendover states, a

separate Forest Charter.[53] That writer was led into this unfortunate

error by confusing the charter granted by King John with its re-issue by

his son in 1217, when provisions for the reform of the forest law _were_

framed into a separate supplementary charter. From Roger’s time onwards,

the charters of Henry III. were reproduced in all texts and treatises,

in place of the real charter actually granted by John. Sir William

Blackstone was the first commentator to discover this grievous error,

and he clearly emphasized the grave differences between the terms

granted by John and those of his son, showing in particular that the

former king granted no separate Forest Charter at all.[54]

-----

Footnote 53:

See R. Wendover, III. 302-318.

Footnote 54:

_Great Charter_, p. xxi.

-----

Before the conferences at Runnymede came to an end, confidence in the

good intentions of the twenty-five Executors, drawn it must be

remembered entirely from the section of the baronage most extreme in

their views and most unfriendly to John, seems to have been completely

lost. If we may believe Matthew Paris,[55] a second body or committee of

thirty-eight barons was nominated, representing other and more moderate

sections of the baronage, to act as a check on the otherwise

all-powerful oligarchy of twenty-five despots. If this second committee

was ever really appointed, no details have been preserved as to the date

of its selection, or as to the exact powers entrusted to it.

-----

Footnote 55:

_Chron. Maj._, II. 605-6.

-----

If the rebel leaders expected to arrive at a permanent settlement of

their disputes when they came to meet the King on the morning of the

15th day of June, it must have been evident to all before the 23rd, that

John only made the bargain in order to gain time and strength to break

it. Three weeks, indeed, before John granted Magna Carta, he had begun

his preparations for its repudiation. In a letter of 29th May, addressed

to the Pope, there may still be read his own explanation of the causes

of quarrel, and how he urged, with the low cunning peculiar to him, that

the hostility of the rebels prevented the fulfilment of his vow of

crusade. In conclusion, he expressed his willingness to abide by the

Pope’s decision on all matters at issue.

John, then, at Runnymede was merely waiting for two events which would

put him in a position to throw off the mask—the favourable answer he

confidently expected from the Pope, and the arrival of foreign troops.

Meanwhile, delay was doubly in his favour; since the combination formed

against him was certain, in a short time, to break up. It was, in the

happy phrase of Dr. Stubbs,[56] a mere “coalition,” not an "organic

union"—a coalition, too, in momentary danger of dissolving into its

original factors. The barons were without sufficient sinews of war to

carry a protracted struggle to a successful issue. Very soon, both sides

to the treaty of peace were preparing for war. The northern barons,

anticipating the King in direct breach of the compact, began to fortify

their castles. John, in equally bad faith, wrote for foreign allies,

whilst he anxiously awaited the Pope’s answer to his appeal.

-----

Footnote 56:

Stubbs, _Const. Hist._, II. 3.

-----

Langton and the bishops still struggled to restore harmony. The 16th

July was fixed for a new conference. John did not attend; but it was

probably at this Council that in his absence a papal bull was read

conferring upon a commission of three—the Bishop of Winchester, the

Abbot of Reading, and the legate Pandulf—full powers to excommunicate

all “disturbers of the King and Kingdom.” No names were mentioned, but

these powers might clearly be used against Langton and his friends. The

execution of this sentence was delayed, in the groundless hope of a

compromise, till the middle of September, when two of the commissioners,

Pandulf and Peter of Winchester, demanded that the Archbishop should

publish it; and, on his refusal, they forthwith, in terms of their papal

authority, suspended him from his office. Stephen left for Rome, and his

absence at a critical juncture proved a national misfortune. The

insurgents lost in him, not only their bond of union, but also a

wholesome restraint. His absence must be reckoned among the causes of

the royalist reaction soon to take place. After his departure, a papal

bull arrived (in the end of September) dated 24th August. This is an

important document in which Innocent, in the plainest terms, annuls and

abrogates the Charter, after adopting all the facts and reproducing all

the arguments furnished by the King. Beginning with a full description

of John’s wickedness and repentance, his surrender of England and

Ireland, his acceptance of the Cross, his quarrel with the barons; it

goes on to describe Magna Carta as the result of a conspiracy, and

concludes, “We utterly reprobate and condemn any agreement of this kind,

forbidding, under ban of our anathema, the aforesaid king to presume to

observe it, and the barons and their accomplices to exact its

performance, declaring void and entirely abolishing both the Charter

itself and the obligations and safeguards made, either for its

enforcement or in accordance with it, so that they shall have no

validity at any time whatsoever.”[57]

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Footnote 57:

The original bull with the seal of Innocent still attached is

preserved in the British Museum (Cotton, Cleopatra E 1), and is

carefully printed by Bémont, _Chartes des Libertés Anglaises_, p. 41.

It may also be read _inter alia_ in Rymer and in Blackstone.

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A supplementary bull, of one day’s later date, reminded the barons that

the suzerainty of England belonged to Rome, and that therefore nothing

could be done in the kingdom without papal consent.[58] Thereafter, at a

Lateran Council, Innocent formally excommunicated the English barons who

had persecuted “John, King of England, crusader and vassal of the Church

of Rome, by endeavouring to take from him his kingdom, a fief of the

Holy See.”[59]

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Footnote 58:

The text is given by Rymer.

Footnote 59:

See Rymer, and Bémont, _Chartes_, xxv.

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Meanwhile, the points in dispute had been submitted to the rude

arbitrament of civil war, in which the first notable success fell to

King John in the capture, by assault, of Rochester Castle on 30th

November. The barons had already made overtures to Louis, the French

King’s son, to whom they promised as a reward for his help, yet not

perhaps with entire sincerity, the crown of England. Towards the end of

November, some seven thousand French troops arrived in London, where

they spent the winter—a winter consumed by John in marching from place

to place meeting, on the whole, with success, especially in the east of

England. John’s best ally was the Pope, who had no intention of allowing

a French Prince to usurp the throne of one who was now his humble

vassal. Gualo was dispatched from Rome to Philip, King of France,

forbidding his son’s invasion, and asking rather protection and

assistance for John as a papal vassal. Philip, anxious to meet the force

of the Pope’s arguments with some title to intervene, of more weight

than the invitation of a group of rebels, replied by an ingenious string

of fictions. He endeavoured to find defects in John’s title as King of

England, and to argue that therefore John was not _in titulo_ to grant

to the Pope the rights of an overlord. Among other arguments it was

urged that John had been convicted of treason while Richard was King,

and that this sentence involved forfeiture by the traitor of all rights

of succession to the Crown. Thus the Pope’s claim of intervention was

invalid, while Prince Louis justified his own interference by some

imagined right which he ingeniously argued had passed to him through the

mother of his wife.

John had not relied solely on papal protection. A great fleet, collected

at Dover to block Louis with his smaller vessels in Calais harbour, was

wrecked on 18th May, 1216. The channel thus cleared of English ships,

the French Prince, setting sail on the night of the 20th May, landed

next morning without opposition. John, reduced to dependence on

mercenaries, did not dare oppose his landing. Gualo, now in England, on

28th May excommunicated Louis by name, and laid London under interdict.

Such thunderbolts had now lost their blasting power by frequent

repetition, and produced no effect whatever. On 2nd June, Louis entered

London amid acclamations, and marched against John at Winchester, which

he reached on 14th June, after John had fled. Ten days later, the

ancient capital of Wessex with its castles surrendered. Next day, the

French Prince attacked Dover, whose brave defender, Hubert de Burgh,

after some months of stubborn resistance, obtained a truce, on 14th

October, in order that the garrison might communicate with the King.

Before Hubert’s messengers could reach him, John was dying. During these

months, when the verdict of war was going against him in the south, he

had been acting in the north strenuously, and not without success. The

issue still trembled in the balance. A royalist reaction had begun. The

insolence of the French troops caused desertions from the barons.

On 10th October John, after being feasted to excess by the loyal

burghers of Lynn, fell into an illness from which he never really

recovered. Nine days later, worn out by his wars, and by excitement and

chagrin, at this critical juncture when fortune might have taken any

sudden turn, he died at Newark Castle, in the early hours of the morning

of 19th October, 1216. His death saved the situation, rendering a

compromise possible. Almost immediately, there took place an entirely

new grouping of political forces inside and outside of England. A silent

compromise was effected, all parties returning gradually to their

natural allegiance to the son of John, on the understanding that the

Charter in its main features should be accepted as the basis of his

government. Prince Louis was soon discarded. Rome also fell into line;

the death of Innocent, on 16th June, 1216, had been equally opportune

with the death of John, four months later, removing an obstacle from the

path of peace. Gualo, in the name of Innocent’s successor, consented to

the re-issue of the Charter by the advisers of the young King Henry.

Magna Carta: A Commentary on the Great Charter of King John With an Historical Introduction · 第 1 / 13 章