liberties which John agrees to observe towards his vassals shall be also
observed by mesne lords, whether prelates or laymen, towards their
sub-vassals. This provision has met with a chorus of applause from
modern writers. Prof. Prothero declares[210] that “the sub-tenant was in
all cases as scrupulously protected as the tenant-in-chief.” Dr. Hannis
Taylor[211] is even more enthusiastic. “Animated by a broad spirit of
generous patriotism, the barons stipulated in the treaty that every
limitation imposed for their protection upon the feudal rights of the
king should also be imposed upon their rights as mesne lords in favour
of the under-tenants who held of them.”[212] It must, however, be
remembered that a vague general clause affords less protection than a
definite specific privilege; and that in a rude age such a general
declaration of principle might readily be infringed when occasion arose.
The barons were compelled to do something, or to pretend to do
something, for their under-tenants. Apparently they did as little as
they, with safety or decency, could.
-----
Footnote 210:
_S. de Montfort_, 17.
Footnote 211:
_English Constitution_, I. 383.
Footnote 212:
Bishop Stubbs, Preface to _W. Coventry_, II. lxxii., represents the
barons, in their fervour for abstract law, as actually supporting
their own vassals against themselves: “the barons of Runnymede guard
the people against themselves as well as against the common tyrant.”
-----
(4) Something was also done for the _merchant and trading classes_, but,
when we subtract what has been read into the Charter by democratic
enthusiasts of later ages, not so much as might reasonably be expected
in a truly national document. The existing privileges of the great city
of London were confirmed, without specification, in the Articles of the
Barons; and some slight reforms in favour of its citizens (not too
definitely worded) were then added. An attentive examination seems to
suggest, however, that these privileges were carefully refined away when
the Articles were reduced to their final form in Magna Carta. The right
to tallage London and other towns was carefully reserved to the Crown,
while the rights of free trading granted to foreigners were clearly
inconsistent with the policy of monopoly and protection dear to the
hearts of the Londoners. A mere confirmation to the citizens of existing
customs, already bought and paid for at a great price, seems but a poor
return for the support given by them to the movement of insurrection at
a critical moment when John was bidding high on the opposite side, and
when their adherence was sufficient to turn the scale. The marvel is
that so little was done for them.[213]
-----
Footnote 213:
For details, see _infra_ under cc. 12, 13, 35, and 41. It is
instructive to compare these chapters with the corresponding
provisions of the Articles of the Barons (viz. articles 32, 12, and
31). The alterations (though slight) seem to show that some new
influence affecting only the later document was inimical to the towns.
-----
(5) The relation of the _villein_ to the benefits of the Charter has
been hotly discussed. Coke claims for him, in regard to the important
provisions of chapter 39 at least, that he must be regarded as a _liber
homo_, and therefore as a full participant in all the advantages of the
clause.[214] This contention is not well founded. Even admitting the
relativity of the word _liber_ in the thirteenth century, and admitting
also that the villein performed some of the duties, if he enjoyed none
of the rights of the free-born, still the formal description _liber
homo_, when used in a feudal charter, cannot be stretched to cover those
useful manorial chattels that had no recognized place in the feudal
scheme of society or in the political constitution of England, however
necessary they might be in the scheme of the particular manor to the
soil of which they were attached.
-----
Footnote 214:
See Coke, _Second Institute_, p. 45, “for they are free against all
men, saving against their lord.”
-----
Even if we exclude the villein from the general benefits of the grant,
it may be, and has been, maintained that some few privileges were
insured to him in his own name. One clause at least is specially framed
for his protection. The villein, so it is provided in chapter 21, must
not be so cruelly amerced as to leave him utterly destitute; his plough
and its equipment must be saved to him. Such concessions, however, are
quite consistent with a denial of all _political_ rights, and even of
all _civil_ rights, as these are understood in a modern age. The Crown
and the magnates, so it may be urged, were only consulting their own
interests when they left the villein the means to carry on his farming
operations, and so to pay off the balance of his debts in the future.
The closeness of his bond to the lord of his manor made it impossible to
crush the one without slightly injuring the other. The villein was
protected, not as the acknowledged subject of legal rights, but because
he formed a valuable asset of his lord. This attitude is illustrated by
a somewhat peculiar expression used in chapter 4, which prohibited
injury to the estate of a ward by “waste of men or things.” For a
guardian to raise a villein to the status of a freeman was to benefit
the enfranchised peasant at the expense of his young master.[215]
-----
Footnote 215:
Cf. under c. 4 _infra_.
-----
Other clauses both of John’s Charter and of the various re-issues show
scrupulous care to avoid infringing the rights of property enjoyed by
manorial lords over their villeins. The King could not amerce other
people’s villeins harshly, although those on his own farms might be
amerced at his discretion. Chapter 16, while carefully prohibiting any
arbitrary increase of service from freehold property, leaves by
inference all villein holdings unprotected. Then the “farms” or rents of
ancient demesne might be arbitrarily raised by the Crown,[216] and
tallages might be arbitrarily taken (measures likely to press hardly on
the villein class). The villein was deliberately left exposed to the
worst forms of purveyance, from which chapters 28 and 30 rescued his
betters. The horses and implements of the _villanus_ were still at the
mercy of the Crown’s purveyors. The re-issue of 1217 confirms this view;
while demesne waggons were protected, those of villeins were left
exposed.[217] Again, the chapter which takes the place of the famous
chapter 39 of 1215[218] makes it clear that lands held in villeinage are
not to be protected from arbitrary disseisin or dispossession. The
villein was left by the common law merely a tenant-at-will—subject to
arbitrary ejectment by his lord—whatever meagre measure of protection he
might obtain under the “custom of the manor” as interpreted by the court
of the lord who oppressed him.
-----
Footnote 216:
See under c. 25 _infra_.
Footnote 217:
See chapter 26 of 1217.
Footnote 218:
See chapter 35 of 1217.
Even if it were possible to neglect the significance of any one of these
somewhat trivial points, when all of them are placed side by side their
meaning is clear. If the bulk of the English peasantry were protected at
all by Magna Carta that was merely because they formed valuable assets
of their lords. The Charter viewed them as "villeins regardant"—as
chattels attached to a manor, not as members of an English
commonwealth.[219]
-----
Footnote 219:
Dr. Stubbs takes an entirely different view. While admitting that
there is “so little notice of the villeins in the charter,” he
explains the omission apparently on two distinct grounds, (1) that
they had fewer grievances to redress than members of other classes,
and (2) that they participated in all the grants from which they were
not specially excluded. “It was not that they had no spokesman, but
that they were free from the more pressing grievances, and benefited
from every general provision.” Preface to _W. Coventry_, II., lxxiii.
-----
The general conclusion to be derived from this survey is that, while
much praise may be due to the baronial leaders for their comparatively
liberal interest in the rights of others, they are scarcely entitled to
the excessive laudation they have sometimes received. The rude
beginnings of many features which have since come into prominence in
English institutions (such as the conceptions of patriotism and
nationality and the principles of equality before the law and the tender
regard for the rights of the humble) may possibly be found in the germ
in some parts of the completed Charter; but the Articles of the Barons
were what their name implies, a baronial manifesto, seeking chiefly to
redress the private grievances of the promoters, and mainly selfish in
motive.
Yet, when all deductions have been made (and it has seemed necessary to
do this with emphasis in order to redress the false balance created by
the exaggerations of enthusiasts), the Great Charter still stands out as
a prominent landmark in the sequence of events which have led, in an
unbroken chain, to the consolidation of the English nation, and to the
establishment of a free and constitutional form of polity upon a basis
so enduring that, after more than eight centuries of growth, it still
retains the vigour and the buoyancy of youth.
IV. Magna Carta: an Estimate of its Value.
No evidence survives to show that the men of John’s reign placed any
excessive or exaggerated importance on the Great Charter; but, without a
break since then, the estimate of its worth steadily increased until it
came to be regarded almost as a fetish among English lawyers and
historians. No estimate of its value can be too high, and no words too
emphatic or glowing to satisfy its votaries. In many a time of national
crisis, Magna Carta has been confidently appealed to as a fundamental
law too sacred to be altered—as a talisman containing some magic spell,
capable of averting national calamity.
Are these estimates of its value justified by facts, or are they gross
exaggerations? Did it really create an epoch in English history? If so,
wherein did its importance exactly lie?
The numerous factors which contributed towards the worth of Magna Carta
may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its
intrinsic value depends on the nature of its own provisions. The reforms
demanded by the barons and granted by this Charter were just and
moderate. The avoidance of all extremes tended towards a permanent
settlement, since moderation both gains and keeps adherents. Its aims
were practical as well as moderate; the language in which they were
framed, clear and straightforward. A high authority has described the
Charter as “an intensely practical document.”[220] This _practicality_
is an essentially English characteristic, and strikes the key-note of
almost every great movement for reform which has held a permanent place
in English history. Closely connected with this feature is another—the
essentially _legal_ nature of the whole. As Magna Carta was rarely
absent from the minds of subsequent opponents of despotism, a practical
and legal direction was thus given to the efforts of Englishmen in many
ages.[221] Therein lies another English characteristic. While democratic
enthusiasts in France and America have often sought to found their
rights and liberties on a lofty but unstable basis of philosophical
theory embodied in Declarations of Rights; Englishmen have occupied
lower but surer ground, aiming at practical remedies for actual wrongs,
rather than enunciating theoretical platitudes with no realities to
correspond.
-----
Footnote 220:
Prof. F. W. Maitland, _Social England_, I., 409.
Footnote 221:
Cf. Gneist, _Const. Hist._, Chapter XVIII.: “By Magna Carta English
history irrevocably took the direction of securing constitutional
liberty by administrative law.”
-----
Another intrinsic merit of the Charter was that it made definite what
had been vague before. Definition is a valuable protection for the weak
against the strong; whereas vagueness increases the powers of the tyrant
who can interpret while he enforces the law. Misty rights were now
reduced to a tangible form, and could no longer be broken with so great
impunity. Magna Carta contained no crude innovations, and confirmed many
principles whose value was enhanced by their antiquity. King John, in
recognising parts of the old Anglo-Saxon customary law, put himself in
touch with national traditions and the past history of the nation.
Further, the nature of the provisions bears witness to the broad basis
on which the settlement was intended to be built. The Charter,
notwithstanding the prominence given to redress of feudal grievances,
redressed other grievances as well. In this, the influence of the Church
and notably of its Primate, can be traced. Some little attention was
given to the rights of the under-tenants also, and even to those of the
merchants, while the villein and the alien were not left entirely
unprotected. Thus the settlement contained in the Charter had a broad
basis in the affection of all classes.
(2) Part of the value of Magna Carta may be traced to extrinsic causes;
to the circumstances which gave it birth—to its vivid historical
setting. The importance of each one of its provisions is emphasized by
the object-lessons which accompanied its inauguration. The whole of
Christendom was amazed by the spectacle of the King of a great nation
obliged to surrender at discretion to his own subjects, and that, too,
after he had scornfully rejected all suggestions of a compromise. The
fact that John was compelled to accept the Charter meant a loss of royal
prestige, and also great encouragement to future rebels. What once had
happened, might happen again; and the humiliation of the King was
stamped as a powerful image on the minds of future generations.
Such considerations almost justify enthusiasts, who hold that the
granting of Magna Carta was the turning-point in English history.
Henceforward it was more difficult for the king to invade the rights of
others. Where previously the vagueness of the law lent itself to
evasion, its clear re-statement and ratification in 1215 pinned down the
king to a definite issue. He could no longer plead that he sinned in
ignorance; he must either keep the law, or openly defy it—no middle
course was possible.
When all this has been said, it may still be doubted whether the belief
of enthusiasts in the excessive importance of Magna Carta has been fully
justified. Many other triumphs, almost equally important, have been won
in the cause of liberty, and under circumstances almost equally notable;
and many statutes have been passed embodying these. Why then should
Magna Carta be invariably extolled as the palladium of English
liberties? Is not, when all is said, the extreme merit attributed to it
mainly of a sentimental or imaginative nature? Such questions must be
answered partly in the affirmative. Much of its value _does_ depend on
sentiment. Yet all government is, in a sense, founded upon
sentiment—sometimes affection, sometimes fear. Psychological
considerations are all-powerful in the practical affairs of life.
Intangible and even unreal phenomena have played an important part in
the history of every nation. The tie that binds the British colonies at
the present day to the Mother Country is largely one of sentiment; yet
the troopers from Canada and New Zealand who responded to the call of
Britain in her hour of need produced practical results of an obvious
nature. The element of sentiment in politics can never be ignored.
It is no disparagement to Magna Carta, then, to confess that part of its
power has been read into it by later generations, and lies in the halo,
almost of romance, which has gradually gathered round it in the course
of centuries. It became a battle cry for future ages, a banner, a
rallying point, a stimulus to the imagination. For a king, thereafter,
openly to infringe the promises contained in the Great Charter, was to
challenge the bitterness of public opinion—to put himself palpably in
the wrong. For an aggrieved man, however humble, to base his rights upon
its terms was to enlist the warm sympathy of all. Time and again, from
the Barons’ War against Henry III. to the days of John Hampden and
Oliver Cromwell, the possibility of appealing to the words of Magna
Carta has afforded a practical ground for opposition; an easily
intelligible principle to fight for; a fortified position to hold
against the enemies of the national freedom. The exact way in which this
particular document—dry as its details at first sight may seem—has, when
considered as a whole, fired the popular imagination, is difficult to
determine. Such a task lies rather within the sphere of the student of
psychology than of the student of history, as usually conceived. However
difficult it may be to explain this phenomenon, there is no doubt of its
existence. The importance of the Great Charter, originally flowing both
from the intrinsic and from the extrinsic features already described,
has greatly increased, as traditions, associations, and aspirations have
clustered more thickly round it. These have augmented in each succeeding
age the reverence in which it has been held, and have made ever more
secure its hold upon the popular imagination.
Thus Magna Carta, in addition to its legal value, has a political value
of an equally emphatic kind. Apart from and beyond the salutary effect
of the many useful laws it contained, its moral influence has
contributed to a marked advance of the national spirit, and therefore of
the national liberties. A few of the aspects of this advance deserve to
be emphasized. The King, by granting the Charter in solemn form,
admitted that he was not an absolute ruler—admitted that he had a master
over him in the laws which he had often violated, but which he now swore
to obey. Magna Carta has thus been truly said to enunciate and
inaugurate “the reign of law” or “the rule of law” in the phrase made
famous by Professor Dicey.[222]
-----
Footnote 222:
A. V. Dicey, _Law of the Constitution_, Part II.
-----
It marks also the commencement of a new grouping of political forces in
England; indeed without such a rearrangement the winning of the Charter
would have been impossible. Throughout the reign of Richard I. the old
tacit understanding between the king and the lower classes had been
endangered by the heavy drain of taxation; but the actual break-up of
the old alliance only came in the crisis of John’s reign. Henceforward
can be traced a gradual change in the balance of parties in the
commonwealth. No longer are Crown and people united, in the name of law
and order, against the baronage, standing for feudal disintegration. The
mass of humble freemen and the Church are for the moment in league with
the barons, in the name of law and order, against the Crown, recently
become the chief law-breaker.
The possibility of the existence of such an alliance, even on a
temporary basis, involved the adoption by its chief members of a new
baronial policy. Hitherto each great baron had aimed at his own
independence or aggrandisement, striving on the one hand to gain new
franchises for himself, or to widen the scope of those he already had,
and on the other to weaken the king and to keep him outside these
franchises. This policy, which succeeded both in France and in Scotland,
had before John’s reign already failed signally in England, and the
English barons now, on the whole, came to admit the hopelessness of
renewing the struggle for feudal independence. They substituted for this
ideal of an earlier age a more progressive policy. The king, whose
interference they could no longer hope completely to shake off, must at
least be taught to interfere justly and according to rule; he must walk
only by law and custom, not by the caprices of his evil heart. The
barons sought henceforward, to control the royal power they could not
exclude; they desired some determining share in the national councils,
if they could no longer hope to create little nations of their own
within the four corners of their fiefs. Magna Carta was the fruit of
this new policy.
It has been often repeated, and with truth, that the Great Charter marks
also a stage in the growth of national unity or nationality. Here,
however, it is necessary to guard against exaggeration. It is merely one
movement in a process, rather than a final achievement. We must somewhat
discount, while still agreeing in the main with, statements which
declare the Charter to be “the first documentary proof of the existence
of a united English nation”; or with the often-quoted words of Dr.
Stubbs, that “The Great Charter is the first great public act of the
nation, after it has realised its own identity.”[223]
-----
Footnote 223:
_Const. Hist._, I. 571. Cf. _Ibid._, I. 583, “The act of the united
nation, the church, the barons, and the commons, for the first time
thoroughly at one.” Who were “the commons” in 1215? The question is a
difficult one to answer. Cf. also Mr. Prothero, _Simon de Montfort_,
18, “The spirit of nationality of which the chief portion of Magna
Carta was at once the product and the seal.”
-----
A united English nation, whether conscious or unconscious of its
identity, cannot be said to have existed in 1215, except under several
qualifications. The conception of “nationality,” in the modern sense, is
of comparatively recent origin, and requires that the lower as well as
the higher classes should be comprehended within its bounds. Further,
the coalition which wrested the Charter from the royal tyrant was
essentially of a temporary nature, and quickly fell to pieces again.
Even while the alliance continued, the interests of the various classes,
as has been already shown, were far from identical. Political rights
were treated as the monopoly of the few (as is evidenced by the
retrograde provisions of chapter 14 for the composition of the _Commune
concilium_); and civil rights were far from universally distributed. The
leaders of the “national” movement certainly gave no _political_ rights
to the despised villeins, who comprised more than three quarters of the
entire population of England; while their _civil_ rights were almost
completely ignored in the provisions of the Charter.
Magna Carta undoubtedly marked one step, an important step, in the
process by which England became a nation; but that step was neither the
first nor yet the final one.
V. Magna Carta. Its defects.
The great weakness of the Charter lay in this, that no adequate sanction
was attached to it, in order to ensure the enforcement of its
provisions. The only expedient suggested for compelling the King to keep
his promises was of a nature at once clumsy and revolutionary, and
entirely worthless considered as a working scheme of government. Indeed,
it was devised not so much to prevent the King from breaking faith as to
punish him when he had done so. In other words, no proper constitutional
machinery was invented to turn the legal theories of Magna Carta into
practical realities. In its absence, we find what has sometimes been
described as “a right of legalized rebellion” conferred on an executive
committee of twenty-five of the King’s enemies.
This is the chief defect, but not the only one. Many minor faults and
omissions may be traced to a similar root. All the great constitutional
principles are in reality conspicuously absent. The importance of a
council or embryo parliament, constituted on truly national lines (of
which some glimmerings can be traced in 1213); the right of such a body
to influence the King’s policy in normal times as well as in times of
crisis; the doctrine of ministerial responsibility (already dimly
foreshadowed in the reign of Richard); the need of distinguishing the
various functions of government, legislative, judicial, and
administrative—all these cardinal principles are completely ignored by
the Charter. Not one of its many clauses affords evidence that the
statesmen of the day had any conception, even of a rudimentary nature,
of the principles of political science.
Only five of the sixty-three chapters can be said to bear directly on
the subject of constitutional (as opposed to purely legal) machinery,
and most of these do so only incidentally, namely, chapters 14, 21, 39,
61, and 62.
The _Commune Concilium_ is indeed mentioned; and its composition and
mode of summons are clearly defined in chapter 14. But it must be
remembered that this chapter appears as a mere afterthought,—as an
appendix to chapter 12; its incidental nature is proved by the fact that
it has no counterpart in the Articles of the Barons. The rebel magnates
were vitally interested in the narrow question of scutage, not in the
wide possibilities involved in the existence of a national council. The
_Commune Concilium_ was dragged into the Charter, not on its own merits,
but merely as a convenient method of preventing the arbitrary increase
of feudal exactions. That this was so, is further proved by the fact
that both parties were content to omit all mention of the Council from
the re-issue of 1217, when an alternative way of checking the arbitrary
increase of scutage had been devised.
If the framers of John’s Magna Carta had possessed any grasp of
constitutional principles, they would gladly have seized the opportunity
afforded them by the mention, however incidentally, of the Common
Council, in chapters 12 and 14, in order to define most carefully the
powers which they claimed for it. On the contrary, no list of its
functions is drawn up; nor do the words of the Charter contain anything
to suggest that it exercised any powers other than that of consenting to
scutages and aids. Not a word is said of any right inherent in the
Council to a share in legislation, to control or even to advise the
Executive, or to concur in choosing the great ministers of the Crown.
Neither deliberative, administrative, nor legislative powers are secured
to it, while its control over taxation is strictly limited to the right
to veto scutages and aids—that is say, it only extends over that very
narrow class of exactions which affected the military tenants of the
Crown. It is true that chapters 21 and 39 may possibly be read
confirming the _judicial_ power of the Council in a certain limited
group of cases. Earls and barons are not to be amerced except by their
peers (_per pares suos_), and the natural place for these “equals” of a
Crown vassal to assemble for this purpose would be the _Commune
Concilium_. This, however, is merely matter of inference; chapter 21
makes no mention of the Council; and it is equally possible that its
requirements would be met by the presence among the officials of the
Exchequer of a few Crown tenants.[224] Similar reasoning applies to the
provisions of chapter 39 (protecting the persons and property of
freemen, by insisting on the necessity of a “trial by peers”) so far as
they affect earls and barons.
-----
Footnote 224:
This is the view of Mr. L. O. Pike, _House of Lords_, 204.
-----
It is clear that the leaders of the opposition in 1215 did not consider
the constitutional powers of a national Parliament the best safeguard of
the rights and liberties theoretically guaranteed by the Charter. Only
one practical or constitutional expedient seems to have occurred to
them, namely, that embodied in chapter 61. Twenty-five barons were to be
appointed by their fellow-barons to act as Executors of the Charter; but
their functions were apparently only to be called into play in the event
of King John or his officers breaking any of the provisions of the
Charter. If this occurred, intimation might be made to a smaller
sub-committee of four, chosen from the twenty-five, and these four would
straightway ask the King to redress the grievance complained of. If this
was not done within forty days, John granted to the Committee of
twenty-five, assisted by “the whole community of the realm,” the right
practically to make war upon him. He conferred on them in the most
explicit terms full power “to distrain and distress us in all possible
ways, by seizing our castles, lands, possessions, and in any other way
they can, until the grievances are redressed according to their
pleasure.”
Such a provision can hardly be described as constitutional, since it is
rather the negation of all constitutional principles—nothing more nor
less than legalized rebellion. Provision is made not for the orderly
conduct of government, but rather to provide an organization for making
war upon the king in certain abnormal circumstances which are defined.
Such a scheme was clearly impracticable, and the fact that it
recommended itself as a possible expedient to the barons speaks
eloquently of their complete ignorance of the most elementary principles
of the science of government. Civil war levied on a warrant granted
beforehand by the king is treated as a constitutional expedient for the
redress of particular grievances as they arise.[225]
-----
Footnote 225:
Details of this scheme, and a fuller discussion of its defects will be
found _infra_ under chapter 61.
-----
The same inability to devise practical remedies for specific evils may
be traced in several minor clauses of the Charter.[226] When John
promised in chapter 16 that no one should be compelled to do greater
service than had been formerly due from any holding, no attempt was
made, in case of dispute, to provide constitutional machinery to define
what such service actually was; while chapter 45, providing that only
men who knew the law, and meant to keep it, should be made justiciars,
sheriffs or bailiffs, laid down no criterion of fitness, and contained
no suggestion of any way in which so laudable an ambition might be
realized.
-----
Footnote 226:
Magna Carta has been described, in words already quoted with approval,
as “an intensely practical document,” Professor Maitland, _Social
England_, I. 409; but this requires some qualification. If it was
practical in preferring the condemnation of definite practical
grievances to the enunciation of philosophical principles, it was
unpractical in omitting to provide machinery for giving effect to its
provisions.
-----
Thoughtful and statesmanlike as were the provisions of Magna Carta, and
wide as was the ground they covered, many important omissions can be
pointed out. Some crucial questions seem not to have been foreseen, and
others, for example the liability to foreign service, were deliberately
shelved[227]—thus leaving room for future misunderstandings. The praise,
justly earned, by its framers for the care and precision with which they
defined a long list of the more crying abuses, must be qualified in view
of the failure to provide procedure to prevent their recurrence. Men had
not yet learned the force of the maxim, so closely identified with all
later reform movements in England, that a right is valueless without an
appropriate remedy to enforce it.[228]
-----
Footnote 227:
Except in so far as affected by cc. 12 and 16.
Footnote 228:
Mr. Prothero estimates much more highly the constitutional value of
Magna Carta: "The constitutional struggles of the following
half-century would to a great extent have been anticipated had it
retained its original form."—_Simon de Montfort_, 14.
-----
VI. Magna Carta: Value of Traditional Interpretations.
The Great Charter has formed a favourite theme for orators and
politicians in all periods of English history, partly because of its
intrinsic merit, partly because of the dramatic background of its
historical setting, but chiefly because it has been, from the time of
its inception down to the present day, a rallying cry and a protecting
bulwark in every crisis which threatened to endanger the national
liberties.
The uses to which it has been put, and the interpretations which have
been read into it, are so numerous and so varied, that they would
require a separate treatise to do them justice. Not only was Magna
Carta, as will be shown in some detail in a later section, frequently
reissued and confirmed, but its provisions have been asserted and
re-asserted time after time, in Parliament, in the courts of justice,
and in institutional works on jurisprudence. Its influence has thus been
threefold; and any attempt to explain its bearing on the subsequent
history of English liberties would require to distinguish between these
three separate and equally important aspects. (1) It has supplied a
powerful instrument in the hands of politicians, especially of the
leaders of the House of Commons in the seventeenth century, when waging
the battle of constitutional freedom against the Stewart dynasty. (2)
Its legal aspect has been as important as its political one, since it
has been cited in innumerable litigations before the various courts of
law. In the course of legal debate and of judicial opinions, it has been
the subject of many and conflicting interpretations, some of them
accurate and some erroneous. (3) Finally, it has been discussed in many
commentaries either exclusively devoted to its elucidation or else
treating of it incidentally in the course of general expositions of the
law of England.
An exhaustive search throughout the seven centuries which separate us
from 1215 for instances in which Magna Carta has appeared in the arena
of politics, on the judicial bench, or in legal treatises would prove a
gigantic task, but could hardly fail to illustrate the inestimable
services it has rendered to English liberties.
In the light of the important part which Magna Carta has thus played
throughout many centuries of English history, it need not excite wonder
that the estimation in which it was held, high as that was from a very
early period, has gradually increased, until it has overstepped all due
bounds, and has become utterly exaggerated and distorted. While some
sympathy may be felt for such extravagant admiration, not unnatural in
the circumstances, it is clearly the duty of the commentator to correct
false impressions. It is well to point out that no document of human
origin can be really worthy of the excessive eulogy of which the Great
Charter has been made the subject; unfortunately, it has more frequently
been described in terms of inflated rhetoric than of sober methodical
analysis.[229]
-----
Footnote 229:
Extravagant estimates of its value will readily occur to anyone
acquainted with the literature of the subject. For example, Sir James
Mackintosh (_History of England_, I. 218, edn. of 1853) declares that
we are “bound to speak with reverential gratitude of the authors of
the Great Charter. To have produced it, to have preserved it, to have
matured it, constitute the immortal claim of England upon the esteem
of mankind. Her Bacons and Shakespeares, her Miltons and Newtons,
etc., etc.” Such uncritical eulogy contributes nothing to the
understanding of Magna Carta.
Nor has this tendency to unthinking adulation been entirely confined to
popular writers; judges and institutional authors, even Sir Edward Coke
himself, have too often lost the faculty of critical and exact
scholarship when confronted with the virtues of the Great Charter. There
is scarcely one great principle of the English constitution of the
present day, or indeed of any constitution in any day, calculated to
secure national liberties, or otherwise to win the esteem of mankind,
which has not been read by commentators into the provisions of Magna
Carta. In particular, the political leaders of the seventeenth and
eighteenth centuries discovered among its chapters every important
reform which they desired to introduce into England, thereby disguising
the revolutionary nature of many of their projects by dressing them in
the garb of the past.
Many instances of the constitutional principles and institutions, with
the origin of which successive commentators have erroneously credited
the Great Charter, will be expounded under the appropriate chapters of
the sequel. It will be sufficient in the meantime to enumerate trial by
jury; the right of every prisoner to obtain a writ of Habeas Corpus; the
abolition of all arbitrary imprisonment at the king’s command; the
complete prohibition of monopolies; the enunciation of a close and
indissoluble tie between taxation and representation; equality of all
and sundry before the law; a matured conception of nationality,
embracing high and low, freeman and villein alike: all these, and more,
have been discovered in various clauses of the Great Charter.[230]
-----
Footnote 230:
Edmund Burke (_Works_, II. 53, edn. of 1837, Boston) credits Magna
Carta with creating the House of Commons! “Magna Charta, if it did not
give us originally the House of Commons, gave us at least a House of
Commons of weight and consequence.” As will be shown in the sequel,
chapter 14 of the Great Charter (the only one bearing on the subject)
is in reality of a reactionary nature, confining the right of
attendance at the _commune concilium_ to the freeholders of the Crown
and departing from the precedent of two years earlier, which
introduced representatives of each county.
If these tendencies to excessive and sometimes ignorant praise have been
unfortunate from one point of view, they have been most fortunate from
another. The legal and political aspects must be sharply contrasted. On
the one hand, the vague and inaccurate words used in speaking of the
Charter even by great lawyers, such as Coke (not necessarily equally
great as historians, living as they did in an age when the science of
history was unknown), have not only obscured the bearing of many
chapters, but have done a distinct injury to the study of the
development of English law. On the other hand, as the mistakes made in
commenting on the Charter have been almost entirely due to a laudable
desire to extend as widely as possible its provisions in favour of
individual and national liberties, and to magnify generally its
importance; the service these very errors have done to the cause of
constitutional progress is measureless. If political bias has coloured
the interpretation placed on many of the most famous clauses, the
ensuing benefit has accrued not to any one narrow party or faction, not
to any separate class or interest, but rather to the entire body politic
and to the cause of national progress in its widest and best
developments.
Thus the historian of Magna Carta, while bound to correct estimates now
seen to be erroneous in the light of modern research, cannot afford to
despise or under-estimate the value of traditional interpretations. The
meanings which have been read into it by the learned men of later ages,
and which have been acquiesced in by public opinion of the day, have had
an equally potent effect whether they were historically well founded or
ill founded. The stigma of being banned by the Great Charter was usually
too great a burden for any institution or line of policy to bear. If the
belief prevailed that an abuse complained of was really prohibited by
Magna Carta, the most arbitrary king had difficulty in finding judges
who would declare it legal, or trustworthy ministers who would persevere
in enforcing it. The prevalence of such a belief was the main point;
whether it was well or ill founded was, for political purposes, quite
immaterial. The greatness of Magna Carta lies not so much in what it was
to its framers in 1215, as in what it afterwards became to the political
leaders, to the judges and lawyers, and to the entire mass of the men of
England in later ages.
VII. Magna Carta. Its traditional relation to Trial by Jury.
One persistent error, universally adopted for many centuries, and even
now hard to dispel, is that the Great Charter granted or guaranteed
trial by jury.[231] This belief, however, which has endured so long and
played so prominent a part in political theory, is now held by all
competent authorities to be entirely unfounded. Not one of the three
forms of a modern jury trial had taken definite shape in 1215, although
the root principle from which all three subsequently grew had been in
constant use since the Norman Conquest. Henry II., indeed, had done much
towards developing existing tendencies in the direction of all three of
its forms, namely, of the grand jury, the petty criminal jury, and the
jury of civil pleas.
-----
Footnote 231:
The source of this error was the identification of the _judicium
parium_ of chapter 39 with jury trial. This mistake is fully refuted
_infra_ under that chapter.
-----
Magna Carta, embodying as it does many of the innovations of Henry of
Anjou, necessarily contains indications of the existence of these
tendencies. Yet, as these occur incidentally in various provisions of
unconnected chapters, and as they cannot readily be recognized, on
account of the technical language in which they are usually couched and
the apparently trivial points of legal procedure to which they relate,
it seems well to preface the separate consideration of each of them
under its appropriate chapter, by a short account of their mutual
relations. This will conduce to a clear understanding alike of trial by
jury and of the Great Charter itself.
Jury trial in each of the three forms in which it is known to modern
English law is able to trace an unbroken pedigree (though by three
distinct lines of descent) from the same ancestor, namely, from that
principle known as _recognitio_ or _inquisitio_, which was introduced
into England by the Normans, and was simply the practice whereby the
Crown obtained information on local affairs from the sworn testimony of
local men. While thus postulating a foreign origin for this “palladium
of English liberties,” we are afforded consolation by the remembrance of
a fact which some modern authorities are too much inclined to neglect,
namely, that the soil was prepared by Anglo-Saxon labour for its
planting.[232]
-----
Footnote 232:
The theory now generally accepted that the origin of trial by jury
must be sought in procedure introduced by the Norman Dukes and not in
any form of popular Anglo-Saxon institutions is ably maintained by
Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer,
_Evidence_, p. 7. Undoubtedly their conclusions are in the main
correct; but in their natural desire to remove misconceptions, they
are possibly guilty of some slight exaggeration. Trial by jury may
have had more than one root, and a full appreciation of the value of
the Norman contribution need not lead to the total neglect of the
Anglo-Saxon one. Accepted conclusions in this respect might profitably
be supplemented by the opinions of Dr. Hannis Taylor, _English
Constitution_, I. 308 and I. 323.
-----
The old English institution of the frithborh—the practice of binding
together little groups of neighbours for preservation of the peace—and
the custom of sending representatives of the villages to the Hundred
Courts, had alike accustomed the natives to corporate action and formed
in some sort precedents for what their Norman masters compelled them to
do, namely, to give their evidence on local matters jointly and on oath.
Further, one form of the jury—the jury of accusation—is clearly
foreshadowed (in spite of the complete breach of continuity in the
intervening period) by the directions given to the twelve senior thegns
of each Wapentake by a well-known law of Ethelred. Yet the credit of
establishing the jury system as a fundamental institution in England is
undoubtedly due to the Norman and Angevin kings, although they acted in
their own interests and not in those of their oppressed subjects, and
although they had no clear vision of the ultimate consequences of what
they did. The uses to which the _Inquisitio_ was put by William and his
sons in framing _Domesday Book_, collecting information about existing
laws, and dispensing justice, have already been discussed.[233]
-----
Footnote 233:
See _supra_, pp. 105-6.
-----
It was reserved for Henry II. to start the institution on a further
career of development; he it was who thus laid the foundations of the
modern jury system. Strangely enough, he did this not merely in one of
its forms, but in all three of them.
(1) In re-organizing machinery for the suppression and punishment of
crime by the Assizes of Clarendon and Northampton, he established the
general principle that criminal trials should (in the normal case) begin
with formal indictment of the accused by a representative body of
neighbours sworn to speak the truth.[234] This was merely a systematic
enforcement of one of the many forms of _inquisitio_ already in use;
from that date onwards the practice so established has been followed in
England. Criminal prosecution cannot be begun on mere suspicion or
irresponsible complaints. The jury of accusation (or presentment) may be
said to have been instituted in 1166, and has continued in use ever
since, passing by an unbroken course of development into the grand jury
of the present day.[235]
-----
Footnote 234:
See Pollock and Maitland, I. 131. It was part of Henry’s policy to
substitute indictment by a representative jury for the older appeal by
the wronged individual or his surviving relatives. The older
procedure, however, was not completely abolished though looked upon
with disfavour. Its continuance and also its unpopularity may both be
traced in chapter 54 of Magna Carta. See _infra_.
Footnote 235:
Chapter 38 of Magna Carta, according to a plausible interpretation of
an admittedly obscure passage, seems to insist on the necessity of
such an accusation by the jury:—“_non ... sine testibus fidelibus ad
hoc inductis_.”
(2) By insisting that the ordeal was the only adequate test of an
accused man’s guilt or innocence, Henry unconsciously prepared the way
for a second form of jury. When the fourth Lateran Council in the very
year of Magna Carta forbade priests to countenance ordeal by their
presence or blessing, a death-blow was really dealt to that form of
procedure or “test,” since it depended for its authority on
superstition. A canon of the Church had thus suddenly struck away the
pivot on which Henry had made his entire criminal system to revolve.
Some substitute required urgently to be devised. It was to supply this
that the petty jury (or its rude antecedent) came into existence. The
man who had been publicly accused as _presumably_ guilty by the voice of
his neighbours, was asked if he was willing to stand or fall by a
further and final reference to the oath of a second jury of neighbours.
This second verdict, then, was the new “test” or “law” substituted, if
the accused man agreed, for his old right of proving himself innocent by
the ordeal. By obscure steps, on which those best entitled to speak with
authority are not yet agreed, this jury, giving a second and final
verdict, gradually developed into the criminal jury of twelve, the petty
jury of to-day, the characteristics of which are well known and which
has had so important an influence on the development of constitutional
liberties in England, and even, it is said, on the national character.
Another expedient of Henry’s invention must have aided the movement in
the direction of the criminal jury, namely, the writ _de odio et atia_
by applying for which a man “appealed” or accused of a crime might
substitute what was practically a jury’s verdict for the “battle” which
had previously, in the normal case, followed “appeal” as a matter of
course.[236]
-----
Footnote 236:
For fuller details see _infra_ under chapter 36, and _supra_ p. 108.
-----
(3) The Civil Jury owes its origin to quite a different set of reforms,
though inaugurated by the same reformer. Among the evil legacies left to
Henry II. from Stephen’s reign, not the least troublesome were the
numerous claims advanced by rival magnates to the various estates and
franchises which had been bestowed with equally lavish hands, but on
different persons, by Matilda and Stephen. Henry realized the urgent
need of giving his realm rest by protecting vested interests and by
introducing a more rational expedient than trial by combat for deciding
between rival claimants to landed estates. Here again he had recourse to
a new development of “inquisition.” In such cases an option was given to
the defendant (the man in possession, the man with a vested interest
which deserved protection), to refer the question at issue to the
verdict of local recognitors, twelve knights or freeholders in this
case, and therefore men of some position. The name “Assize” was, for
reasons to be immediately explained, applied alike to the procedure
itself and to the twelve neighbours who gave the verdict.
This new expedient, perhaps because it was looked on with suspicion as
an innovation of a violent and revolutionary nature, was applied at
first only to a few special cases, namely, to certain disputes as to
vested interests in land. It was used to settle claims of ultimate
title—the out-and-out ownership of the land—and then it was known as the
Grand Assize; it was also used to settle a few well-defined groups of
pleas of disputed possession, and then it was known as a Petty Assize
(of which there were, however, three distinct and well-known
varieties).[237]
-----
Footnote 237:
These three Petty Assizes are mentioned by name in c. 18 of the Great
Charter, and under that heading the entire subject is more fully
discussed. See _infra_.
-----
In these cases, the defendant could escape “battle” and compel the
plaintiff, even against his will, to submit his claim to the verdict of
the recognitors. This new-fangled privilege of the defendant had no
basis in the ancient custom of the land, but depended solely on royal
prerogative. The king, by a high-handed act of power, thus favoured the
defendant, by depriving the claimant of that remedy which was his right
by feudal law, namely, the resort to the legal duel. It was because the
new procedure was thus founded on a royal Ordinance, that the name
“Assize” was applied to it. The _assisa_ was a remedy strictly confined
to four groups of pleas.
By consent of _both_ parties, however, disputes of almost every
description might be similarly determined; being referred (under
supervision of the king’s judges) to the verdict of local recognitors,
usually twelve in number, who were then known as a _jurata_ (not an
_assisa_, the two being strictly opposed to each other). While the
_assisa_ was narrowly confined to a few types of cases, the _jurata_,
since it favoured neither party, was a flexible remedy capable of
indefinite expansion, and thus soon became the more popular and the more
important of the two. Yet the ancient _assisa_ and the ancient _jurata_,
always closely connected, and resembling each other in most essential
features, can both claim to be ancestors of the modern civil "jury,"—the
name of the more popular institution having survived. Magna Carta, in
providing for the frequent holding of the three Petty Assizes, marked a
stage in the development of the Civil Jury; while, in enforcing the
criminal procedure of Henry Plantagenet, and guarding it from abuse, the
Charter had also a vital bearing on the genesis of the Grand Jury and
the Petty Jury alike.
These scattered and incidental references to tendencies still vague and
indefinite must not, however, be misread as a reference to the definite
procedure into which at a later date they coalesced: Magna Carta does
not promise “trial by jury” to anyone.
PART IV.
HISTORICAL SEQUEL TO MAGNA CARTA.
I. Re-issues and Confirmations of the Great Charter.
While King John had accepted the reforms contained in Magna Carta
unwillingly and insincerely, the advisers of his son accepted them in
good faith. Three re-issues of the Charter were granted in 1216, in
1217, and in 1225, and these were followed by many confirmations, a full
account of which would involve a complete political and legal history of
England. The scheme of this Historical Introduction is restricted to the
narration of such facts as have a direct bearing on the genesis and
contents of the Charter of John. Yet no account of Magna Carta would be
complete without some notice of the more important alterations contained
in these three re-issues.
On 28th October, 1216, Henry of Winchester, was crowned at Gloucester
before a small assemblage.[238] The young King took the usual oath as
directed by the Bishop of Bath, and he also performed homage to the
Pope’s representative Gualo, for the King of England was now the vassal
of Rome. At a Council held at Bristol, on 11th November, William
Marshal, Earl of Pembroke, was appointed _Rector regis et regni_; and,
next day, the Charter was re-issued in the King’s name. This was a step
of extreme importance, marking the acceptance by those in power for the
time being of the programme of the baronial opposition.
-----
Footnote 238:
See _Annals of Waverley_, p. 286, and Stubbs, _Const. Hist._, II. 18.
The Charter in its new form was really a manifesto issued by the
moderate men who rallied round the throne of the young King; it may be
viewed in two aspects, as a declaration by the Regent and his
co-adjutors of the policy on which they accepted office, and as a bid
for the support of the barons who still adhered to the faction of the
French prince. Its issue was, indeed, dictated by the crucial situation
created by the presence in England of Prince Louis of France supported
by a foreign army and by a large faction of the English barons who had
sworn homage to him as their king. It was, therefore, framed in terms
likely to conciliate such of the opposition as were still open to
conciliation. Yet the new Charter could not be a verbatim re-issue of
the old one. Vital alterations were required by the altered
circumstances.[239] It was no longer the expression of a reluctant
consent by the government of the day to the demands of its enemies, but
rather a set of rules deliberately accepted by that government for its
own guidance. The chief tyrant against whom the original provisions had
been directed was now dead, and certain forms of tyranny, it was
confidently hoped, had died with him. Restraints now placed on the
Crown’s prerogatives would only hamper the free action of the men who
framed them, not of their political opponents. The new beneficent
government must not suffer for the sins of the old evil one. The Regent,
while willing to do much for the cause of conciliation, could not afford
to paralyze his own efficiency at a time when foreign invaders were in
possession of one-half of England, from which it would require a supreme
effort to dislodge them. In especial, the Crown, in its urgent need for
money wherewith to pay the wages of its mercenaries, must suffer no
unnecessary restraints upon its powers of taxation. The existing civil
war made it imperative that the government should retain a free hand in
exacting feudal services and in levying scutages. Moderate-minded men
would readily acquiesce in the wisdom of this policy; while it was
useless to modify it in the hope of conciliating the extreme party who
had thrown in their lot irretrievably with Prince Louis.
-----
Footnote 239:
The cause for wonder is rather how few changes required to be made.
“It is, however, by no means the least curious feature of the history,
that so few changes were needed to transform a treaty won at the point
of the sword into a manifesto of peace and sound government.” Stubbs,
_Const. Hist._, II. 21.
-----
The Charter of 1216 is, therefore, notable for its omissions. The chief
among these may be arranged under five groups.[240] (1) Restraints
placed in 1215 on the taxing power of the Crown now disappeared. The
chapters which forbade the king to increase the “farms” or fixed rents
of the counties and hundreds, those which defined the king’s relations
with the Jews, and those which restricted the lucrative rights derived
from the rigorous enforcement of the forest laws, were discarded. An
even more important omission was that of the clause which abolished the
Crown’s rights to increase feudal contributions arbitrarily without
consent of the Common Council.
-----
Footnote 240:
This classification takes no account of such alterations as seem to be
merely verbal or inserted to remove ambiguities, _e.g._ upon chapters
22, 28, and 30 of the original Charter.
-----
(2) One clause specially valued by the national Church was also omitted.
John’s grant of liberty of election by the canons of the chapters was
quietly ignored; although the vague declaration that the Church “should
be free” was allowed to remain.
(3) A great number of provisions of purely temporary interest naturally
disappeared, among them those providing for the disbandment of mercenary
troops and the dismissal from office of obnoxious individuals. Of more
importance was the omission of all reference to the device adopted for
enforcing the original Charter by means of the baronial committee of
twenty-five Executors.
(4) A number of minor omissions of a miscellaneous nature may be grouped
together; for example, chapter 27, providing that the chattels of every
freeman who died intestate should be divided under the supervision of
the Church; chapter 41, granting freedom to leave the kingdom, and
return, without the king’s consent; chapter 45, by which the Crown
restricted itself in the choice of justiciars and other officers; and
the latter half of chapter 47, relating to the banks of rivers and their
guardians.[241]
-----
Footnote 241:
These alterations show traces of some influence at work hostile to the
national Church. Not only is the promise of canonical election
withdrawn, but the omissions of the clauses regulating intestate
succession and guaranteeing freedom to leave the kingdom (a privilege
highly valued by the clergy) seem to prejudice the interests of
English churchmen. Now the papal legate was an active supporter of the
re-issue of this Charter in 1216; whereas Rome, in the crisis of June,
1215, had been bitterly opposed to the original grant of Magna Carta.
The inference is that Rome did not protest against these omissions to
the prejudice of the English Church. Why was this? The explanation
probably lies in the divergence of the interests of the national
Church from those of the Church universal. Canonical election, for
example, was nothing to Rome; successive Popes made provision for
their favourites more readily in England by bringing pressure to bear
on the King than on the monks of the various chapters. Henry III.
habitually acted on the omission; creating wide-felt discontent by
filling the English sees partly with his own foreign favourites, and
partly with ecclesiastics nominated by the Roman Curia. The King and
the Pope thus entered into a tacit partnership for their mutual
benefit at the expense of the English national Church.
-----
(5) These various alterations implied, incidentally rather than
deliberately, the omission of all mention of such constitutional
machinery as had found a place in the words of John’s Great Charter. The
twenty-five Executors fell with the other temporary provisions; while
chapter 14, which defined the composition and mode of summons of the
_Commune Concilium_, was omitted as a matter of course, along with
chapter 12, to which it had merely formed a supplement. It was
apparently thought unnecessary to make any mention of the Council, and
this attitude may be explained partly on the ground that the framers of
the new deed took for granted its continued existence in the future as
in the past, and partly by the consideration that its vital importance
as a constitutional safeguard had not yet been realized. Chapter 14 of
1215, to which much importance is invariably attached by modern writers,
probably held quite a subordinate place in the minds of its framers and
was abandoned altogether in 1216, never to be replaced.[242]
-----
Footnote 242:
It is notable that it failed to find a place in the Charter of 1225,
which was paid for by the nation at the price of one-fifteenth of
moveables.
-----
However natural may be the explanation, the fact is no less notable that
the only clauses of the original Charter which partook of a
constitutional character entirely disappeared from all of its re-issues.
Magna Carta as granted by Henry is purely concerned with matters which
lie within the sphere of private law, and contains no attempt to devise
machinery of government or to construct constitutional safeguards for
the protection of national liberties. The circumstances of the King’s
minority, perhaps, implied a constitutional check on the monarchy in the
necessary existence of guardians, but when Henry III. attained majority,
Magna Carta, deprived of its original sanctions, would, with the
disappearance of the Regency, tend to become an empty record of royal
promises. The entire machinery of government remained exclusively
monarchic; the king, once out of leading-strings, would be restrained
only by his own sense of honour and by the fear of armed resistance—by
moral forces neither legal nor constitutional. The logical outcome,
under the ripening process of time, was the Barons’ War.
The importance of the omissions is considerably minimized, however, by
two considerations. (_a_) Many of the original provisions were merely
declaratory, and their omission in 1216 by no means implied that they
were then abolished. The common law remained what it had been
previously, although it was not considered necessary to specify those
particular parts of it in black and white. In particular, throughout the
entire reign of Henry, the _Commune Concilium_ frequently met, and was
always, in practice, consulted before a levy was made of any scutage or
aid. (_b_) It is clearly stated in the new charter that the advisability
of replacing these omitted clauses was reserved for further
consideration at some more opportune occasion. In the so-called
“respiting clause” (chapter 42) six topics were specially named as thus
reserved because of their “grave and doubtful” import: the levying of
scutages and aids, the debts of the Jews, the liberty of going from and
returning to England, the forest laws, the “farms” of counties, and the
customs relating to banks of rivers and their guardians. This respiting
clause amounts to a definite engagement by the King to take into serious
consideration at some future time (probably as soon as peace had been
restored) how far it would be possible to re-insert the omitted
provisions in a new charter. This promise was partially fulfilled a year
later.[243]
-----
Footnote 243:
Dr. Stubbs propounds the theory that this re-issue of 1216 represents
a compromise whereby the central government, in return for increased
taxing powers, allowed to the feudal magnates increased rights of
jurisdiction. He gives, however, no reasons for this belief, either in
_Select Charters_, p. 339, or in his _Constitutional History_, II. 27.
It is abundantly clear that the Crown reserved a free hand for itself
in taxation, but there seems no evidence to support the other part of
the theory, namely, that feudal justice gained new ground against
royal justice in 1216 which had not been already gained in 1215.
-----
A practical difficulty confronted the advisers of the young King as to
the execution of the Charter. No instance of a Regency had occurred
since seals came into general use; and, therefore, neither law nor
custom afforded precedents for the execution of documents during a
king’s minority. The seal of a king, like that of any ordinary magnate,
was personal to him, and not available for his heir. The custom indeed
was to destroy the matrix when a death occurred, and thus to prevent its
being put to improper uses. John’s great seal could no longer be
used,[244] and the advisers of Henry III. shrank from the responsibility
of making a new one for the infant monarch. Yet no charter would be
binding unless executed with all the recognized formalities. In these
circumstances it was resolved to authenticate the new Charter by
impressing on it the seals of the papal legate and of the Regent. Henry
was made to explain that, in the absence of a seal of his own, the
Charter had been sealed with the seals of Cardinal Gualo and of William
Marshal, Earl of Pembroke, “_rectoris nostri et regni nostri_.”
-----
Footnote 244:
It is unnecessary to invent any special catastrophe to account for the
disappearance of John’s seal. Blackstone (_Great Charter_, xxix.)
says, "King John’s great seal having been lost in passing the washes
of Lincolnshire."
-----
The issue of the new Charter was not immediately successful in bringing
the civil war to an end; but a stream of waverers flowed from Louis to
Henry, influenced partly by the success of the national faction in the
field and partly by the moderate policy of the government typified by
the re-issue of the Charter. On 19th May, 1217, the royalists gained a
decisive victory at the battle known as the “Fair of Lincoln”; and, on
24th August following, Hubert de Burgh, the Justiciar, destroyed the
fleet on which Louis depended. The French prince was compelled to sue
for peace. Although negotiations were somewhat protracted, the resulting
Treaty of Lambeth bears date the 11th September, 1217, the day on which
they opened.[245] Several interviews took place at Lambeth between 11th
and 13th September, and these were followed by a general conference at
Merton, commencing on the 23rd, at which Gualo, Louis, the Regent, and
many English nobles were present.[246] Some difference of opinion exists
as to the exact stages of these negotiations,[247] and it seems best to
treat as one whole the settlement ultimately arranged. “The treaty of
Lambeth is, in practical importance, scarcely inferior to the charter
itself.”[248] It marked the final acceptance by the advisers of the
Crown of the substance of Magna Carta as the permanent basis of
government for England in time of peace, not merely as a provisional
expedient in time of war. Its terms were equally honourable to both
parties: to the Regent and his supporters, because of the moderation
they displayed; and to Louis who, while renouncing all claim to the
English Crown, did so only on condition of a full pardon to his allies,
combined with the guarantee of their cause, so far at least as that was
embodied in the Charter. Ten thousand marks were paid to Louis,
nominally as indemnity for his expenses; but he had in return to restore
the Exchequer Rolls, the charters of the Jews (that is the rolls on
which copies of their starrs or mortgages had been registered),[249] the
Charters of Liberties granted by John at Runnymede, and all other
national archives in his possession. Sir William Blackstone thinks it
probable that, under this clause of the treaty, the original of the
Articles of the Barons was handed over, and deposited among the other
archives of the Archbishop of Canterbury at Lambeth Palace where it
remained until the middle of the seventeenth century.[250] One condition
of this general pacification was of supreme importance—the promise given
by the Regent and the papal legate to grant a new and revised Charter.
This promise was fulfilled some six weeks later, a Charter of Liberties
and a separate Forest Charter being issued on the 6th November,
1217.[251]
-----
Footnote 245:
Compare what is said of the negotiations at Runnymede, and the date of
John’s Magna Carta, _supra_, p. 48.
Footnote 246:
Blackstone, _Great Charter_, xxxiv.
Footnote 247:
_Ibid._
Footnote 248:
Stubbs, _Const. Hist._, II. 25.
Footnote 249:
See _infra_ under chapter 9.
Footnote 250:
_Great Charter_, xxxix., and _cf. infra_, p. 201.
Footnote 251:
The Forest Charter, preserved in the archives of Durham Cathedral,
bears this date, and that, in itself, affords some presumption that
the Charter of Liberties (undated) to which it forms a supplement was
executed at the same time. M. Bémont accepts this date; see his
_Chartes_, xxviii., and authorities there cited. Blackstone, _Great
Charter_, xxxix., gives the probable date as 23rd September. Dr.
Stubbs, always catholic in his sympathies, gives both dates, 23rd
September in _Sel. Charters_, 344, and 6th November in _Const. Hist._,
II. 26. This Charter of Liberties of 1217, originally found among the
archives of Gloucester Abbey and now in the Bodleian Library at
Oxford, still bears the impression of two seals—that of Gualo in
yellow wax, and that of the Regent in green. See Blackstone, _Great
Charter_, p. xxxv. The existence of the separate Forest Charter was
only surmised by Blackstone, _Ibid._, p. xlii.; but shortly after he
wrote, an original of it was found among the archives of Durham
Cathedral. For an account of this and of its discovery, see Thomson,
_Magna Charta_, pp. 443-5.
-----
The issue of these two Charters put the copestone to the general
pacification of the kingdom. After the wide-spread havoc wrought by two
years of civil war, the moment had come for a definite and final
declaration by the Regent of his policy for ruling an England once more
at peace. Not only was he bound in honour to this course by the Treaty
of Lambeth, but the opportunity was a good one for fulfilling the
promise made in chapter 42 of the Charter of 1216. Accordingly the
respiting clause of that document now disappeared altogether, and some
new clauses took its place. The matters reserved for further discussion
as “_gravia et dubitabilia_” had now been reconsidered and were either
finally abandoned, or else accepted with more or less radical
alterations. The results of these deliberations are to be found in a
number of additions to the Charter of Liberties of 1217, the most
important of which are chapters 44 and 46, and in the terms of a Forest
Charter now granted for the first time.
Chapter 46 is a “saving clause,” reserving to archbishops, bishops,
abbots, priors, templars, hospitallers, earls, barons, and all other
persons, cleric and lay, the liberties and free customs which they
previously had. The vagueness of this provision (a mere reference to the
undefined and misty past) deprived it of all practical value. The other
addition was of much greater importance.
Chapter 44 directed that scutages should be taken in the future as they
had been wont to be taken in the time of Henry II. Now, the rates of
scutage and the procedure for levying it in that reign had been quite
specific, and could still be read among the Rolls of the Exchequer
recently recovered from Prince Louis. It was thus easy to define the
various innovations of John’s reign, those well-hated additional burdens
which had furnished the chief motive for the civil war, and which Henry
III. was now made to promise should be utterly swept away. This general
condemnation probably included the increased frequency of John’s
exactions, the assessment of scutages on the new basis provided by the
Inquest of 1212, the levy of both scutage and service cumulatively, and,
above all, the exaction of the high rate of three marks per knight’s
fee. The essence of the demands pressed on the government by the
baronial leaders in 1217 must undoubtedly have been the return to the
normal maximum rate of 20s. per knight’s fee. Henry II., we have seen,
sometimes took less, but only on one occasion took more.[252] This
provision, it should be needless to say, did not preclude the barons
individually or collectively from volunteering to contribute at a higher
rate; and the necessity of such abnormal contributions would naturally
be determined at meetings of the _Commune Concilium_.
-----
Footnote 252:
See _supra_, p. 88.
-----
The substitution of this definite stipulation of a return to the
well-known usage of Henry II. in place of the discarded chapters 12
and 14 of John’s Charter (which made “common consent” necessary for
_all_ scutages, whatever the rate) was a natural compromise; and the
barons in agreeing to it were probably quite justified in thinking,
from their own medieval point of view, that they were neither
submitting to any unfair abridgments of their rights, nor yet
countenancing any reactionary measures hurtful to the growth of
constitutional liberty.[253] Yet when this alteration is viewed by
modern eyes in the light cast by the intervening centuries of
constitutional progress, and when it is remembered that the new clause
formed the chief part of the concessions made in 1217 to baronial
claims, the conclusion inevitably suggests itself that the new
agreement is the proof of retrograde tendencies successfully at work.
All mention of the _Commune Concilium_—that predecessor of the modern
Parliament, that germ of all that has made England famous in the realm
of constitutional laws and liberties—disappears, apparently without
protest or regret. If the control of taxation by a national assembly,
if the conception of representation, if the indissoluble connection of
these two principles with each other, ever really found a place in
Magna Carta, they were contemptuously ejected from it in 1216, and
failed to find a champion in 1217 to demand their restoration.
-----
Footnote 253:
Mr. Hubert Hall (_Eng. Hist. Rev._, IX. 344) takes a different view,
however, considering that a reduction of scutages to the old rate of
the reign of Henry II. was impossible; he speaks of “the astounding
and futile concession in c. 44 of the charter of 1217.” The clause is
surely neither astounding nor futile if we regard it as a promise by
Henry III. that he would not exact more than 20s. per knight’s fee
_without consent_, and if we further note that it was the practice of
his reign to ask such consent from the _Commune Concilium_ for
scutages even of a lower rate. A levy of 10s., for example, was
granted by a Council in 1221. See Stubbs, _Const. Hist._, II. 33.
-----
A modern statesman, with any knowledge of the value of constitutional
principles, would have gladly seized the occasion of the revision of the
terms of the Charter, to assert and define the functions and rights of
the Great Council with precision and with emphasis. He would not lightly
have thrown away the acknowledgment implied in chapters 12 and 14 of
1215—in the germ, at least—of the right of a national council to
exercise a legal control over the levying of taxes. The magnates on both
sides in 1217 were content, however, to abandon to their fate all
abstract principles of constitutional development, provided they could
protect their lands and purses from an immediate increase of taxation.
Far-reaching problems of the composition and privileges of Parliament
were unhesitatingly surrendered, as soon as another method of defence
against arbitrary increase of scutage was suggested. The barons were
selling, not indeed their birthright, but their best means of gaining
new rights from the Crown, for “a mess of pottage.”
Such considerations, however, must not be pressed too far. It should not
be forgotten that no one seriously thought in 1217, any more than in
1216, of dispensing with future meetings of the feudal tenants in
_Commune Concilium_. Great Councils indeed continued to meet with
increasing frequency throughout the reign of Henry III., and the consent
of the magnates therein assembled was habitually asked to scutages even
at a lower rate than that which had been normal in Henry II.’s reign.
Sometimes such consent was given unconditionally; sometimes in return
for a new confirmation of the cherished Charters; sometimes, even, it
was met by an absolute refusal—the first distinct instance of which
seems to have occurred in January, 1242.[254]
-----
Footnote 254:
Prothero, _S. de Montfort_, 67.
-----
Another set of provisions which the respiting clause of 1216 had
promised to reconsider was amply restored in the terms of a separate
Forest Charter. This took the place not only of certain chapters of the
original grant of 1215 omitted in 1216, but also of chapters 36 and 38
of the grant of 1216. Nothing was, however, done to restore other
important omissions, namely, those relating to the Jews, to intestate
succession, to free ingress to and egress from England. On the other
hand, additional provisions, not promised in the respiting clause, were
directed against various abuses of the Crown’s feudal and other
prerogatives.[255]
-----
Footnote 255:
See cc. 7, 26, and 38 of 1217. Blackstone (_Great Charter_, xxvii.)
further considers that c. 35 of 1217 contains “more ample provision
against unlawful disseisins”; and this opinion of a great lawyer is
shared by a distinguished historian. Mr. Prothero (_Simon de
Montfort_, 17 n.), finds that the words of the re-issue “are
considerably fuller and clearer than the corresponding declaration in
the charter of 1215.” It will be shown, however, _infra_ under chapter
39, that one object of the alteration was to make it clear that
holdings of villeins were excluded from the projection of the
_judicium parium_; and that other alterations in the Charter of 1217
(_e.g._ chapter 16) are carefully drawn with a similar object.
-----
So far the Charter of 1217, with its restorations and additions, may be
regarded as a politic effort to secure the support of the barons by
satisfying their reasonable demands; but it may also be viewed in three
other aspects: (1) as containing provisions for suppressing the anarchy
still prevalent in several districts, a legacy from the civil war; (2)
as amending some few details of the original grant which the experience
of two years had shown to be defective or objectionable; and (3) as
making a first attempt to solve certain problems of government which had
come quite recently to the foreground, but which were not successfully
grappled with until three-quarters of a century later, when the
legislative genius of Edward Plantagenet was brought to bear upon them.
Among the chapters restoring order, the most important, with the
exception of those recasting the machinery of administration, was that
which ordered the destruction of the “adulterine” castles,[256] that is,
the private strongholds built by barons without the licence of the
Crown. These remained in 1217, as they had remained in 1154, a result of
past civil war, and a menace to peace and good government in the future.
It was the aim of every efficient ruler to abolish all fortified
castles—practically impregnable in the thirteenth century when artillery
was unknown—except those of the King, and to see that the royal castles
were under command of “constables”[257] of approved loyalty. John had
placed his own strongholds under creatures of his own, who, after his
death, refused to give them up to his son’s Regent. The attempt to
dislodge these soldiers of fortune, two years later, led to new
disturbances in which the famous Falkes de Breauté played a leading
part.[258] The destruction of “adulterine” castles and the resumption of
royal ones were both necessary accompaniments of any real pacification.
-----
Footnote 256:
C. 47 of 1217.
Footnote 257:
See _infra_ under cc. 24 and 45.
Footnote 258:
Stubbs, _Const. Hist._, II. 32.
-----
The re-issue of 1217 may also be regarded as bearing some analogy to a
modern amending Statute. Experience, for example, had suggested the
desirability of several alterations in the procedure for holding petty
assizes. Many objections had been taken to the dispatch of Justices,
with commissions to hold assizes in the various counties, so frequently
as four times every year. It was now agreed to reduce these circuits
from once a quarter to once a year—a concession to those who felt the
burden of too frequent attendance.[259] Although the king’s Justices
were still to enjoy the co-operation of knights from each county, it was
no longer specially mentioned that these knights should be _elected_.
All pleas of darrein presentment were removed from the jurisdiction of
the Justices on circuit, and reserved for the consideration of “the
Bench,” presumably now settled at Westminster.[260] The two other
assizes (novel disseisin and mort d’ancestor) were still left to the
king’s Justices in the respective counties where the lands lay, but
difficult points of law were reserved for “the Bench.”[261] The
inferiority of the Justices of Assize to the Courts at Westminster was
thus made clear.
-----
Footnote 259:
C. 13 of 1217.
Footnote 260:
C. 15 of 1217.
Footnote 261:
C. 14 of 1217.
-----
The same natural reluctance of those who owed suit to the local courts,
to neglect their own affairs in order to perform public duties, which
led to the demand for less frequent visits of the Justices of Assize,
led also to an emphatic restatement of the old customary rules as to
attendance at County Courts. Ordinary sessions were not to be held more
frequently than once a month, nor was the sheriff to make his Tourn, or
local circuit, throughout the various hundreds of his county more
frequently than twice a year, namely at Easter and Michaelmas: and only
at Michaelmas was he to hold view of frankpledge—one of the most
important functions performed by him in the course of his circuit.[262]
It was a more distinct concession to the feudal anti-centralizing
spirit, that this royal view of frankpledge—for the sheriff acted as the
king’s deputy—was prohibited from infringing any freeman’s franchises,
whether such franchises had existed under Henry II. or had been
subsequently acquired.[263]
-----
Footnote 262:
C. 42 of 1217.
Footnote 263:
_Ibid._ This seems to imply that all the aggressions since Henry’s
reign, had not been on one side. The barons, in obtaining a promise to
respect “franchises” acquired since 1189, tacitly admitted that they
had been recently encroaching on royal prerogatives. By the Statute of
Gloucester and the subsequent _quo warranto_ procedure Edward I. made
a partially successful effort to redress the balance.
-----
Two questions, destined to become of supreme importance in the future,
have also left traces on this re-issue of the Charter:—on chapters 39
and 43 respectively. The former treats of the vexed question of a feudal
tenant’s right to dispose of parts of his holding by gift or sale. There
were two different methods of effecting this—by way of subinfeudation or
by way of substitution: the tenant might create a new link in the feudal
chain by granting part of his lands to a third party, who became his
vassal as a result of the new grant; or he might endeavour to make the
donee the direct vassal of his overlord, _quoad_ the land he had newly
acquired. There was here a direct conflict of interest between overlord
and tenant, which extended to both ways of conveying land. Freedom to
sell it or give it away was clearly an advantage to the tenant; while
the lord objected to a transaction which might thrust on him new vassals
he did not desire, or might divide between two or more vassals the
obligations formerly incumbent on one, making the incidence of feudal
burdens uncertain and their enforcement more difficult. Chapter 39
contained a compromise. The tenant might part with a portion of his
holding, provided the balance he reserved was sufficient to ensure full
performance by himself of the obligations due to the lord. The original
vassal thus remained primarily liable for the whole of the feudal
obligations (whatever right of relief he might have against his donees
or sub-tenants), and must reserve in his own hands sufficient lands out
of the proceeds of which to fulfil them. The final solution of the
problem, here temporarily disposed of, was contained in the Statute
commonly known as _Quia Emptores_,[264] which allowed the tenant to
dispose of parts of his estate by way of substitution, while forbidding
subinfeudation entirely.
-----
Footnote 264:
18 Edward I., also known as Westminster III.
-----
Chapter 43 marks the growing hostility against the accumulation by the
monasteries of wealth in the form of landed estates, and begins the
series of legislative measures which culminated in the Statute of
Mortmain.[265] The times were not ripe in 1217 for a final solution of
this problem, and the charter of that year contented itself with an
attempt to remedy one of the subsidiary abuses of the system merely, and
not to abolish the main evil. An ingenious expedient had been devised by
lawyers to enable tenants to cheat their lords out of some of the lawful
feudal incidents. Religious houses formed one species of corporation,
and all corporations made bad tenants, since, as they never died, the
lord of the fief was deprived of the possibility of a wardship, relief,
or escheat falling to him. This was a hardship; but it was not unfair,
provided that the transaction which made the abbey or monastery owner of
the subjects was a _bona fide_ one. Sometimes, however, more or less
collusive agreements were made between a lay free-holder and a religious
house whereby a new link was inserted in the feudal chain to the
prejudice of the freeholder’s lord. The freeholder bestowed his lands on
a particular house, which took his place as the new tenant of the lord
and then subinfeudated the same subjects to the original tenant, who
thus got his lands back again, but now became tenant of the church, not
of his former lord. The lord was thus left with a corporation for his
tenant and lost all the profitable incidents, which would, under the new
arrangement, accrue to the church when the freeholder died. Such
expedients were prohibited, under pain of forfeiture, by chapter 43 of
the re-issue of 1217; and this prohibition was interpreted very
liberally by the lords in their own favour.[266]
-----
Footnote 265:
7 Edward I., also known as the Statute _de religiosis_.
Footnote 266:
See Pollock and Maitland, I. 314.
-----
These were the main alterations made in 1217 in the tenor of the Great
Charter.[267] This re-issue is of great importance, since it represents
practically the final form taken by the Charter, only two changes being
made in subsequent issues.[268] On the 22nd February, 1218, copies of
the Great Charter in this new form were sent to the sheriffs to be
published and enforced. In the writs accompanying them, the special
attention directed to the clause against unlicensed castles shows the
importance attached to their demolition.[269]
-----
Footnote 267:
Minor variations are discussed under their appropriate chapters
_infra_. A full list is given by Blackstone, _Great Charter_, xxxvi.
Footnote 268:
_Cf._ Stubbs, _Const. Hist._, II. 27. “This re-issue presents the
Great Charter in its final form.”
Footnote 269:
The terms of these writs are preserved in _Rot. Claus._, I. 377.
The Regent and the ministers of the Crown seem to have felt increasingly
the inconvenience of conducting the government without a great seal of
the King. There was a natural reluctance to accept grants authenticated
merely by substitutes for it, since these might not be treated as
binding on the monarch when he came of age. The Regent at last agreed to
the engraving of a great seal for Henry, but not without misgivings. To
prevent it being used by unscrupulous ministers to validate lavish
grants to their own favourites to the impoverishment of the Crown, the
Council, on the advice of the Regent, issued a proclamation that no
charter or other deed implying perpetuity should be granted under the
new seal during the King’s minority—a saving clause of which Henry was
destined to make a startling use. This proclamation was probably issued
soon after Michaelmas 1218.[270]
-----
Footnote 270:
Stubbs, _Const. Hist._, II. 30. The _Annals of Waverley_, p. 290,
speak of a re-issue of the charters about this date; but this probably
results from confusion with what happened a year earlier. See Stubbs,
_Ibid._
-----
On 14th May, 1219, England lost a trusted ruler through the death of the
aged Regent, whose loyalty, firmness, and moderation had contributed so
much to repair the breaches made in the body politic by John’s evil
deeds, and the consequent civil war. After the good Earl of Pembroke’s
death, the Bishop of Winchester and Hubert de Burgh contended for the
chief place in Henry’s councils, with alternating success, but neither
of them succeeded to the title of _Rector regis et regni_.[271] A few
years later, the young King seems to have grown impatient under the
restraints of a minority, and the Roman Curia was ready to bid for his
goodwill by humouring him. In 1223 Honorius III., by letter dated 13th
April, declared Henry (then only in his sixteenth year) to be of full
age as regarded most of the duties of a king.[272]
-----
Footnote 271:
Stubbs, _Const. Hist._, II. 31.
Footnote 272:
Stubbs, _Const. Hist._, II. 32, and authorities there cited.
-----
The terms of this papal letter may have suggested to some of Henry’s
councillors the possibility of renouncing the Charters on the ground
that they had been granted to the prejudice of the King before he had
been declared of full age. One of his flatterers, William Briwere by
name, at a “colloquium” held in January, 1223, advised him to repudiate
the two Charters when requested by Stephen Langton to confirm them.
Briwere’s bold words are reported by Matthew Paris.[273] “_Libertates
quas petitis, quia violenter extortae fuerunt, non debent de jure
observari._” This doctrine of repudiation moved the primate to anger,
and Henry, still accustomed to leading-strings, gave way, swearing to
observe the terms of both charters. An element of truth, however,
underlay Briwere’s advice, and the whole incident probably showed to the
more far-seeing friends of liberty the necessity of a new and
_voluntary_ confirmation of the Charters by the King. An opportunity for
securing this occurred next year, when Henry at Christmas, 1224,
demanded one-fifteenth of all his subjects’ moveables. He was met by a
firm request that he should, in return for so large a grant, renew Magna
Carta. The result was the re-issue on 11th February, 1225, of both
Charters each of which was, as a matter of course, fortified by the
impression of the great seal recently made. The importance of the whole
transaction was enhanced by the declaration made by Honorius III. only
two years previously, that Henry was of full age to act for himself. The
new forest Charter was practically identical with that issued in 1217;
while the only alterations in the tenor of the Charter of Liberties were
the result of a laudable determination to place on record the
circumstances in which it had been granted. In the new preamble Henry
stated that he conceded it “_spontanea et bona voluntate nostra_” and
all reference to the consent of his magnates was omitted, although a
great number of names appear as witnesses at the close of the Charter.
These alterations were intended to emphasize the fact that no pressure
had been brought to bear on him, and thus to meet future objections such
as William Briwere had suggested in 1223, namely, that the confirmation
of the Charter had been extorted by force.[274]
-----
Footnote 273:
_Chronica Majora_, III. 76.
Footnote 274:
Dr. Stubbs thinks that in thus avoiding one danger, a greater danger
was incurred. "It must be acknowledged that Hubert, in trying to bind
the royal conscience, forsook the normal and primitive form of
legislative enactment, and opened a claim on the king’s part to
legislate by sovereign authority without counsel or consent." (_Const.
Hist._, II. 37.) This seems to exaggerate the importance of an
isolated precedent, the circumstances of which were unique. The
confirmation was something far apart from an ordinary “legislative
enactment.”
-----
The “consideration” also clearly appears in the concluding portion of
the Charter, where it is stated that in return for the foregoing gift of
liberties along with those granted in the Forest Charter, the
archbishops, bishops, abbots, priors, earls, barons, knights, free
tenants, and all others of the realm had given a fifteenth part of their
moveables to the King.
The prominence given to this feature brings the transaction embodied in
the re-issue of 1225 (as compared with the original grant of 1215) one
step nearer the legal category of “private bargain.” It is, in one
aspect, simply a contract of purchase and sale. Another important new
clause follows—founded probably on a precedent taken from chapter 61 of
the Charter of King John: Henry is made significantly to declare “And we
have granted to them for us and our heirs, that neither we nor our heirs
shall procure any thing whereby the liberties in this charter shall be
infringed or broken; and if any thing shall be procured by any person
contrary to these premises, it shall be held of no validity or effect.”
This provision was clearly directed against future papal dispensations
or abrogations, such as that which King John had obtained from Innocent
in 1215. The clause, however, was diplomatically made quite general in
its terms.[275]
-----
Footnote 275:
A few minor alterations, such as the omission of the clause against
unlicensed castles (now unnecessary) and some verbal changes need not
be mentioned. A list of these is given by Blackstone, _Great Charter_,
l.
-----
One original copy of this third re-issue of the Great Charter is
preserved at Durham with the great seal in green wax still perfect,
though the parchment has been “defaced and obliterated by the
unfortunate accident of overturning a bottle of ink.”[276] A second is
to be found at Lacock Abbey, in Wiltshire. The accompanying Forest
Charter is also preserved at Durham.[277]
-----
Footnote 276:
See Blackstone, _Ibid._, xlvii. to l.
-----
-----
Footnote 277:
_Ibid._
-----
This third re-issue brings the story of the genesis of the Great Charter
to an end. It marked the final form assumed by Magna Carta; the
identical words were then used which afterwards became stereotyped and
were confirmed, time after time, without further modification. It is
this Charter of 1225 which is always referred to in the ordinary
editions of the Statutes, in the courts of law, in parliament, and in a
long series of classical law books beginning with the second _Institute_
of Sir Edward Coke.[278]
-----
Footnote 278:
One slight exception should be noted. In one point of detail a change
had occurred since 1225; the rate of relief payable from a barony had
been reduced from £100 to 100 marks. See _infra_ under chapter 2.
-----
Although the Charter, thus, in 1225 took the permanent place it has
since retained among the fundamental laws of England, it was not yet
secure from attacks. Two years later the actions of Henry raised strong
suspicions that he would gladly annul it, if he dared.
The young King, in spite of the Pope’s bull declaring him of full age in
1223, had in reality only passed from one set of guardians to another;
he had long chafed under the domination of the able but unscrupulous
Peter des Roches, Bishop of Winchester, when in the beginning of 1227 he
suddenly rebelled. Acting probably under the advice of Hubert de Burgh,
who wished to return to power, Henry determined to shake off the control
of Bishop Peter. At a Council held at Oxford in January, 1227, Henry,
though not yet twenty, declared himself of full age;[279] and soon
thereafter showed what use he intended to make of his newly acquired
freedom. Making an unexpected application of the proclamation issued by
the Regent, William Marshal, in 1218, that the great seal should not,
during the minority, be used to authenticate any grants in perpetuity of
royal demesne lands or other rights of the Crown, Henry now interpreted
this to imply the nullity of all charters whatsoever which had been
issued under the great seal since his accession. He even tentatively
applied this startling doctrine to the Forest Charter.
-----
Footnote 279:
A bull of Gregory IX., dated 13th April, 1227, confirmed Henry in this
declaration that his minority was ended. See Blackstone, _Great
Charter_, li., and Stubbs, _Const. Hist._, II. 39.
-----
Henry’s new policy seems to have been endorsed by the magnates present,
and on 21st January, 1227, he issued by their “common counsel” a series
of “letters close” directing that all recipients of Crown charters must
apply for their renewal—a ceremony requiring, of course, to be
handsomely paid for. On 9th February a second series of “letters close”
was issued, resulting in the extension of many forests to their old
boundaries once more.[280]
-----
Footnote 280:
See _Rot. Claus._, II. 169, and Stubbs, _Const. Hist._, II. 40, where
it is suggested that “the declaration seems merely to have been a
contrivance for raising money.” This is not quite accurate. Mr. G. J.
Turner, in his introduction to _Select Pleas of the Forest_, pp. xcix.
to cii., gives a full and convincing account of Henry’s procedure and
motives. “The king neither repudiated the Charter of the Forest nor
annulled the perambulations which had been made in his infancy. He
merely corrected them after due inquiry.”
-----
Fears, apparently unfounded, that the Great Charter was in danger, seem
to have been rife. If Henry really entertained any intention of setting
aside Magna Carta, it is fortunate that the attack upon it, suggested to
the King by William Briwere in January, 1223, was not seriously
attempted until four years later. The delay was of supreme importance,
since there had intervened the third re-issue of the Charter containing
the declaration that the King had acted voluntarily, and fortified by
the facts that Honorius had previously declared him of full age for such
purposes, and that he had accepted a price for the confirmation of the
Charter. Henry could not now repudiate the papal dispensation which he
had gladly accepted and acted upon four years earlier. In this way the
re-issue of both charters in 1225 had gone far to secure the national
liberties. Henry shrank from any open infringement of the Great Charter;
and, although he was partially successful in restoring the forests to
their old wider boundaries, thus undoing many reforms of his minority,
he proceeded without violating the letter of the Forest Charter.
Henceforward, Henry’s attitude towards the charters was a settled one,
and easily understood. He confirmed them with a light heart whenever he
could obtain money in return, and thereafter acted as though they did
not exist.
Henceforth history is concerned not with re-issues but with
confirmations of the Great Charter. Of these the number is considerable,
beginning with that granted at Westminster on 28th January, 1237;[281]
but it forms no part of the scheme of this Historical Introduction to
describe these in detail.[282] One of them, the so-called _Confirmatio
Cartarum_ of 5th November, 1297, is specially important, not because it
is a confirmation, but because it is something more. It contains new
clauses which impose restrictions on the taxing power of the Crown; and
these, to some extent, take the places of those chapters (12 and 14) of
the original grant of John, which had been omitted in all intervening
re-issues and confirmations.
-----
Footnote 281:
Blackstone, _Great Charter_, 68–9; Stubbs, _Sel. Charters_, 365–6.
Footnote 282:
The more important among them are enumerated by Coke in his second
_Institute_, p. 1. Further details are given by Blackstone, _Great
Charter_, lii.; Thomson, _Magna Charta_, 437–446; and in Bémont,
_Chartes_, pp. xxx. to liii.
-----
A Statute of 1369 (42 Edward III. c. 1), requires special notice, since
it commands that “the Great Charter and the Charter of the Forest be
holden and kept in all points, and if any statute be made to the
contrary that shall be holden for none.” Parliament in 1369 thus sought
to deprive future Parliaments of the power to effect any alterations
upon the terms of Magna Carta. Yet, if Parliament in that year had the
power to add anything by a new legislative enactment to the ancient
binding force of the Great Charter, it follows that succeeding
Parliaments, in possession of equal powers, might readily undo by a
second statute what the earlier statute had sought to effect. If
Parliament had power to alter the sacred terms of Magna Carta itself, it
had equal power to alter the less sacred statute of 1369 which declared
it unalterable. The terms of that statute, however, are interesting as
perhaps the earliest example on record of the illogical theory
(frequently reiterated in later years) that the English Parliament might
use its present legislative supremacy in such a manner as to limit the
legislative supremacy of other Parliaments in the future.
II. Magna Carta and the Reforms of Edward I.
The Great Charter, alike from its excellences and from its defects,
exercised a potent influence on the trend of events throughout the two
succeeding reigns. It is hardly too much to say that the failure of
Magna Carta to provide adequate machinery for its own enforcement is
responsible for the spirit of unrest and for the protracted struggles
and civil war which made up the troubled reign of Henry III.; while the
difference of attitude assumed by Henry and by his son Edward
respectively towards the scheme of reform it embodied explains the
fundamental difference between the two reigns—why the former was so full
of conflicts and distress, while the latter was so prosperous and
progressive. To trace the history of these reigns in detail lies outside
the scope of this Historical Introduction. It seems necessary, however,
to emphasize such outstanding events as have an obvious and close
connection with the Great Charter, and also to outline the policy of
Edward, which led ultimately to the triumph of its underlying
principles.
The fundamental difference between the reigns of Henry III. and Edward
I. lies in this, that while Henry, in spite of numerous nominal
confirmations of Magna Carta, never loyally accepted the settlement it
contained, Edward, on the contrary, acquiesced in the main provisions of
the Great Charter, under many subtle modifications it is true, yet
honestly on the whole, and with a sincere intention to carry them into
practice.
At the same time, the attitude even of Henry III. towards Magna Carta
indicates a distinct advance upon that of his father. It was much that
the advisers of John’s infant heir solemnly accepted, on behalf of the
Crown, the provisions of the Charter, and strove to enforce them during
the minority; and it was even more that Henry, on attaining majority,
confirmed the arrangement thus arrived at, freely and on his own
initiative, and found himself thereafter unable openly to repudiate the
bargain he had made. Yet the settlement of the dissensions between Crown
and baronage was still nominal rather than real. In the absence of
proper constitutional machinery, the king was merely bound by bonds of
parchment which he could break at pleasure. The victory of the friends
of liberty proved a hollow one, since unsupported promises count for
little in the great struggles fought for national liberties. Even the
crude constitutional devices of the Charter of 1215 entirely disappeared
from its confirmations; and, in the absence of all sanctions for its
enforcement, the Charter became an empty expression of good intentions.
If a quarrel arose, no constitutional expedient existed to reconcile the
disputants—nothing to obviate a final recourse to the arbitrament of
civil war. Thus, part of the blame for the recurring and devastating
struggles of the reign of Henry III. must be attributed to the defects
of the Great Charter.
The whole interest of the reign indeed lies in the various attempts made
to evolve adequate machinery for enforcing the liberties contained in
Magna Carta. Experiments of many kinds were tried in the hope of turning
theory into practice. The system of government outlined in the
Provisions of Oxford of 1258, for example, reproduced the defects of the
crude scheme contained in chapter 61 of the Great Charter, and added new
defects of its own. It sought to keep the king in the paths of good
government by the coercion of a body of his enemies. This baronial
committee was not designed to enter into friendly co-operation with
Henry in the normal work of government, but rather to supersede entirely
his right to exercise certain of the royal prerogatives. No glimmering
was yet apparent of the true solution afterwards adopted with success.
It was not yet realized that the best way to control the Crown was
through the agency of its own ministers, and not by means of a hostile
opposition organized for rebellion—that the correct policy was to make
it difficult for the king to rule except through regular ministers, and
to secure that all such ministers should be men in whom the _Commune
Concilium_ reposed confidence and over whom it exercised control.
It is true that Simon de Montfort may have had some vague conception of
the real constitutional remedy for the evils of the reign; but his
ideals were overruled in 1258 by the more extreme section of the
baronial party. Earl Simon indeed had one opportunity of putting his
theories into practice. During the brief interval between the battle of
Lewes, which made him supreme for the moment, and the battle of Evesham,
which ended his career, he enjoyed an unfettered control over the
movement of reform; and some authorities find in the provisional scheme
of government, by means of which he attempted to realize his political
ideals in the closing months of 1264, traces of the true constitutional
expedient afterward successfully adopted as a solution of the problem.
In one respect, undoubtedly, the Earl of Leicester did influence the
development of the English constitution; he furnished the first
precedent for a national Parliament, which reflected interests wider
than those of the Crown tenants and the free-holders, when he invited
representatives of the boroughs to take their places by the side of the
representatives of the counties in the national council summoned to meet
in January, 1265. His schemes of government, however, were not fated to
be realized by him in a permanent form. The utter overthrow of his
faction followed his decisive defeat and death at Evesham on 4th August,
1265.
The personal humiliation of Simon de Montfort, however, in reality
assured the ultimate triumph of the cause he had made his own. Prince
Edward, from the moment of his brilliant victory at Evesham, was not
only supreme over his father’s enemies, but henceforth he was supreme
also within his father’s councils. He found himself in a position at
once to realize some of his most important political ideals; and from
the very moment of his victory, he adopted as his own, with some
modification, it is true, the main constitutional conceptions of his
uncle Earl Simon, who had been his friend and teacher before he became
his deadliest enemy.
Edward Plantagenet, alike when acting as the chief adviser of his aged
father and after he had succeeded him on the throne, not only accepted
the main provisions of the Great Charter,[283] but adopted also, along
with them, a new scheme of government which formed their necessary
counterpart. To Edward is due the first dim conception of “parliamentary
government,” to this extent at least, that the king, as head of the
executive government, should take a national council into partnership
with him in the work of national administration. His political ideals
were the natural result of the experience obtained during the later
years of his father’s reign; and he endeavoured to embody in his scheme
of government the best parts of the various experiments in which that
reign abounded. His policy, although founded on that of his uncle Simon
de Montfort, was profoundly modified by his own individual genius. The
very fact of the adoption of Earl Simon’s ideals by the heir to the
throne entirely altered their chances of success. All such schemes had
been foredoomed to failure so long as they merely emanated from an
opposition leader however powerful; but their triumph was speedily
assured now that they were accepted as a programme of reform by the
monarch himself. Henceforth the new political ideals, summed up in the
conception of a national Parliament, were to be fostered by the Crown’s
active support, not merely thrust upon the monarchy from without.
-----
Footnote 283:
The best proof of this will be found in a comparison of Magna Carta
with the Statute of Marlborough, and the chief statutes of Edward’s
reign, notably that of Westminster I.
-----
Under the protection of Edward I.—the last of the four great
master-builders of the constitution—the _Commune Concilium_ of the
Angevin kings (itself a more developed form of the Curia Regis of the
Conqueror and his sons) grew into the English Parliament. This implied
no sudden dramatic change, but a long slow process of adjustment, under
the guiding hand of Edward.
The main features of his scheme may be briefly summarized: Edward’s
conception of his position as a national king achieving national ends,
the funds necessary for effecting which ought to be contributed by the
nation, naturally led him to devise a system of taxation which would
fill the Exchequer while avoiding unnecessary friction with the
tax-payer. His problem was to keep his treasury full in the way most
convenient to the Crown, and at the same time to reduce to a minimum the
discontent and inconvenience felt by the nation at large under the
burden. In broadening the basis of taxation, he was led to broaden the
basis of Parliament; and thus he advanced from the feudal conception of
a _Commune Concilium_, attended only by Crown tenants, to the nobler
ideal of a national Parliament containing representatives of every
community and every class in England. The composition of the great
council was altered; the principle of representation known for centuries
before the Conquest in English local government, now found a home, and,
as it proved, a permanent home, in the English Parliament. It was
obvious that Parliament, whose composition was thus altered, must meet
more frequently than of old. Edward elevated the national council from
its ancient position of a mere occasional assembly reserved for special
emergencies, to a normal and honoured place in the scheme of government.
Henceforth, frequent sessions of parliament became a matter of course.
The powers of this assembly also widened almost automatically, with the
widening of its composition. Taxation was its original function, since
that was the primary purpose (so the best authorities maintain in spite
of some adverse criticism) for which the representatives of the counties
and the boroughs had been called to it. Legislation, or the right to
veto legislation, was soon added—although at first the new-comers had
only a humble share in this. The functions of hearing grievances and of
proffering advice had, even in the days of the Conqueror, belonged to
such of the great magnates as were able to make their voices heard in
the Curia Regis; and similar rights were gradually extended to the
humbler members of the augmented assembly. The representatives of
counties and of towns retained rights of free discussion even after
Parliament had split into two separate Houses. These rights, fortified
by command of the purse strings, tended to increase, until they secured
for the Commons some measure of control over the executive functions of
the king. This parliamentary control varied in extent and effectiveness
with the weakness of the king, with his need of money, and with the
political situation of the hour.
The new position and powers of Parliament logically involved a
corresponding alteration in the position and powers of the smaller but
more permanent council or _Concilium Ordinarium_ (the future Privy
Council). This had long been increasing in power, in prestige, and in
independence, a process quickened by the minority of Henry III. The
Council was now strengthened by the support of a powerful Parliament,
usually acting in alliance with the leaders of the baronial opposition.
The members of the Council were generally recruited from Parliament, and
their appointment as king’s ministers and members of the Curia was
strongly influenced by the proceedings in the larger assembly.
The Council thus became neutral ground on which the conflicting
interests of king and baronage might be discussed and compromised. Wild
schemes like that of chapter 61 of Magna Carta or like that typified in
the Committee appointed by the Mad Parliament in 1258, were now
unnecessary. The king’s own ministers, backed by Parliament, became an
adequate means of enforcing the constitutional restraints embodied in
royal Charters. The problem was thus, for the time being, solved. A
proper sanction had been devised, fit to change royal promises into
realities.
To sum up, Edward’s aim of ruling as a national king implied the
frequent assembling of a central parliament composed of individuals
fitted to act as links between the Crown and the various classes of the
English nation whom he expected to contribute to the national Exchequer.
It implied also that the national business should be conducted by
ministers likely to command the confidence of that parliament.[284]
Thus, Edward’s policy dimly foreshadowed some of the most fundamental
principles of modern constitutional government—parliament,
representation, ministerial responsibility. Edward Plantagenet was, of
course, far from realizing the full meaning of these conceptions, and if
he had realized it, he would have been most unwilling to accept them;
yet he was unconsciously helping forward the cause of constitutional
progress.
-----
Footnote 284:
The doctrine that the _Commune Concilium_ should have some voice in
the appointment of the Ministers of the Crown had indeed been acted
upon on several occasions even in the reign of Henry III. See Stubbs,
_Const. Hist._, II. 41.
-----
This temporary solution, during the reign of Edward I., of an
ever-recurring problem of government has been viewed in two different
aspects. It is sometimes regarded simply as the result of the pressure
of events—as a natural phenomenon evolved, subject to natural laws, to
meet the needs of the age. By other writers it is attributed to the
wisdom and conscious action of King Edward. The two views are perhaps
not so inconsistent as they at first sight seem, since great men work in
harmony with the spirit of their times, and appear to control events
which they only interpret and express. The bargain made at Runnymede
between the English monarch and the English nation found its necessary
counterpart and sanction, before the close of the thirteenth century, in
the conception of a king ruling through responsible ministers and in
harmony with a national Parliament. Edward Plantagenet was merely the
instrument by whose agency the new conception was for a time partially
realized. Yet, he merits the gratitude of posterity for his share in the
elaboration of a working scheme of government, which took the place of
the clumsy expedients designed as constitutional sanctions by the barons
in 1215. He supplied the logical complement of the theories vainly
enunciated in John’s Great Charter, thus changing empty expressions of
good intentions into accomplished facts. The ultimate triumph of the
principles underlying Magna Carta was assured through the constitutional
machinery devised by Edward Plantagenet.
PART V.
MAGNA CARTA: ORIGINAL VERSIONS, PRINTED EDITIONS, AND COMMENTARIES.
I. Manuscripts of Magna Carta and Relative Documents.
The barons who had forced the Great Charter on King John were determined
that its contents should be widely known and permanently preserved. It
was not sufficient that the great seal should be formally impressed upon
one parchment. Those who compelled John to submit were not content even
with the execution of its terms in duplicate or in triplicate, but
insisted that the great seal should be appended to many copies all of
practically identical terms and of equal authority. These were to be
distributed throughout the land, and to be preserved in important
strongholds and among the archives of the chapters of cathedral
churches.
I. _The extant original versions._ Of the many copies of the Charter
authenticated under John’s great seal, four have escaped the destroying
hand of time, and may still be examined by members of the public after
nearly seven centuries have passed. These four records are:
(1) _The British Museum Magna Carta, number one_—formally cited as
“Cotton, Charters XIII. 31A.” The recent history of this document is
well known. It was found among the archives of Dover Castle in the
seventeenth century; and not improbably it may have lain there for
centuries before, possibly from a date not much later than that of its
original execution; for the castle of Dover, like the Tower of London,
was a natural place for the preservation of documents of national value.
There it was discovered by Sir Edward Dering while warden of the castle,
and by him it was presented to Sir Robert Cotton, accompanied by a
letter dated 10th May, 1630.[285] It still forms an item in the
collection preserved in the British Museum, which bears the name of the
famous antiquary.
-----
Footnote 285:
This letter is also preserved in the British Museum, and cited as
“Cotton, Julius, C. III. Fol. 191.”
-----
In the great fire of 23rd October, 1731, which attacked the Cottonian
Library, this valuable Charter was seriously damaged and rendered in
parts illegible, while the yellow wax of the seal was partially melted.
It is possible that this accident has added somewhat to the prestige of
this particular copy of Magna Carta, which, like the three others still
extant, is written continuously, though with many contractions, in a
neat, running, Norman hand. A special characteristic of this version is
that some omissions seem to have been made in the body of the deed and
to have been supplied at the foot of the parchment. These are five in
number.[286] It is possible to regard them as corrections of clerical
omissions due to carelessness or hurry in engrossing the deed; but the
fact that one of the additions is distinctly in the King’s favour raises
a strong presumption that they embodied additions made as afterthoughts
to what had been originally dictated to the engrossing clerk, and that
they were inserted at the King’s suggestion before he would adhibit the
great seal.
-----
Footnote 286:
These are carefully noted among the variations described by the
editors of the Charters of Liberties forming Part I. of the first
volume of the _Statutes of the Realm_. These addenda are (1) at the
end of c. 48, “_per eosdem, ita quod nos hoc sciamus prius, vel
justiciarius noster, si in Anglia non fuerimus_,” providing that the
King should receive intimation of all forest practices branded as
“evil” before they are abrogated; (2) two small additions, near the
beginning of c. 53, (a), “_et eodem modo de justicia exhibenda_,” and
(b) “_vel remansuris forestis_”; (3) in c. 56, these four words, “_in
Anglia vel in Wallia_”; and (4) in c. 61 the words “_in perpetuum_”
after “_gaudere_.” In the 2nd British Museum MS. three of these
addenda appear at the foot, viz. (1), (2_a_) and (2_b_); but the words
of (3) and (4) are incorporated in the body of that MS.
-----
The importance of this document was recognized at a comparatively early
date, and a facsimile prepared by John Pine, a well-known engraver of
the day, some eighteen months after the great fire. The engraving bears
a certificate dated 9th May, 1733, narrating that the copy is founded on
the original, which had been shrivelled up by the heat; but that where
two holes had been burned, the obliterated words had been replaced from
the other version (to be immediately described), also preserved in the
Cottonian collection.
(2) _The British Museum Magna Carta, number two_—formally cited as
“Cotton, Augustus, II. 106.” The early history of this document is
unknown, but sometime in the seventeenth century it came into the
possession of Mr. Humphrey Wyems, and by him it was presented to Sir
Robert Cotton on 1st January, 1628–9. Unlike the other Cottonian copy,
this one is happily in an excellent state of preservation; but there is
no trace left of any seal.[287] Three of the five addenda inserted at
the foot of the copy previously described are found in a similar
position here; but the substance of the two others is included in the
body of the deed. On the left-hand margin, titles intended to be
descriptive of several chapters occur in a later hand.[288] Thus for the
preservation of two original copies of the national charter of liberties
the nation is indebted to Sir Robert Cotton, but for whose antiquarian
zeal they might both have been lost. Apparently, however, a story told
by several authors[289] as to the humiliating fate which threatened the
original Magna Carta must be rejected. Sir Robert, it is said,
discovered “the palladium of English liberties” in the hands of his
tailor at the critical moment when the scissors were about to transform
it into shapes for a suit of clothes. This is undoubtedly a fable, since
both manuscripts of Magna Carta in the Cottonian collection are
otherwise accounted for.
-----
Footnote 287:
“The fold and label are now cut off, though it is said once to have
had slits in it for two seals, for which it is almost impossible to
account; but Dr. Thomas Smith, in his Preface to the _Cottonian
Catalogue_, Oxford, 1695, folio, states that they were those of the
barons” (Thomson, _Magna Charta_, 425).
Footnote 288:
Reproductions of this copy are sold at the British Museum at 2s. 6d.
each.
Footnote 289:
See Isaac D’Israeli, _Curiosities of Literature_, I. 18, and Thomson,
_Magna Charta_, 424.
-----
(3) _The Lincoln Magna Carta._ This copy is under the custody of the
Dean and Chapter of the Cathedral, where it has undoubtedly lain for
many centuries. It has been suggested that Bishop Hugh of Lincoln,
canonized by the Roman Church, whose name appears in the list of
magnates consenting to John’s grant, may have brought it with him from
Runnymede on his return to Lincoln. The word “Lincolnia” is endorsed in
a later hand in two places at the back of the document on folds of the
parchment. It has no corrections or additions inserted at the foot, but
embodies in their proper places all those which occurred in the versions
already discussed. Further, it is executed with more flourishes and in a
more finished manner than these, and the inference is that it took
longer to engross. The Record Commissioners in preparing the _Statutes
of the Realm_ considered this version as of superior authority to any of
the others and have accordingly chosen it as the copy for their
engraving of Magna Carta published in 1810 in that valuable work, and
also in the first volume of their edition of Rymer’s _Foedera_ in
1816.[290]
-----
Footnote 290:
The engraving was executed to their order by James Basire.
-----
(4) _The Salisbury Magna Carta_—preserved in the archives of the
Cathedral there. The early history of this manuscript has not been
traced, but its existence was known at the close of the seventeenth
century.[291] Sir William Blackstone, in April, 1759,[292] instituted a
search for it, but without success—his inquiries being met with the
statement that it had been lost some thirty years before, during the
execution of repairs in the Cathedral library. As its disappearance had
really taken place during the tenure of the see by Gilbert Burnet, whose
antiquarian interests were well known, his political adversaries accused
him of appropriating it—an undoubted calumny, yet one to which some
colour was lent by facts to be hereafter explained. The document had not
been re-discovered in 1800 when the royal commission published its
report of the result of its inquiries for national records.[293] Two
sub-commissioners visited Salisbury in 1806 in search of it, but
obtained no satisfaction. It seems, however, to have been re-discovered
within the next few years, since it is mentioned in a book published in
1814,[294] and it is now exhibited to the public by order of the Dean
and Chapter of Salisbury Cathedral. It resembles the Lincoln copy both
in its beautiful leisurely writing and also in the absence of additions
at the bottom of the parchment.[295]
-----
Footnote 291:
See James Tyrrell, _History of England_, Vol. II. 821 (1697-1704).
Footnote 292:
Blackstone, _Great Charter_, p. xvii.
Footnote 293:
See _Report_ (1800), p. 341, containing the Return by the Chapter
Clerk of the Cathedral Church of Salisbury, dated 15th May, 1800.
Footnote 294:
Dodsworth, _Historical Account of the Cathedral_, 202.
Footnote 295:
It is unnecessary to treat in detail of the copies of the charter not
authenticated by John’s Great Seal, though some of these are of great
value as secondary authorities. The four most important are (_a_) a
copy appearing in the Register of Gloucester Abbey, (_b_) the Harleian
MSS., British Museum No. 746 (which also contains the names of the
twenty-five Executors in a hand probably of the reign of Edward I.),
(_c_) in the Red Book of the Exchequer. There is also (_d_) an early
French version, printed in D’Achery, _Spicilegium_, Vol. XII. p. 573,
together with the writ of 27th September addressed to the Sheriff of
Hampshire. See Blackstone, _Great Charter_, p. xviii., and Thomson,
_Magna Charta_, pp. 428-430.
-----