William Blackstone’s great work, extraordinary confusion seems to have
prevailed concerning the various Charters of Liberties. Not only was
John’s Magna Carta confused with the various re-issues by Henry; but
these latter were known only from an official copy of the Charter of
1225 contained in the confirming statute of the twenty-eighth year of
the reign of Edward I., known as an “Inspeximus,” because of the opening
word of the King’s declaration that he had seen the document of which he
gave a copy. Neither Madox[296] nor Brady[297] was aware of the
existence of any one of the four originals; and no mention is made of
them in the first edition of Rymer’s _Foedera_, which appeared in 1704.
Mr. Tyrrell indeed seems to have known of the second original copy in
the British Museum and also of the Salisbury version.[298] Mr. Care[299]
showed no clear knowledge of the various manuscripts, though he
mentioned the existence of several. Even Sir William Blackstone in 1759
collated only the two Cottonian copies, since he failed to find that of
Salisbury, and was unaware of the existence of the Lincoln
manuscript.[300]
-----
Footnote 296:
Thomas Madox, _Firma Burgi_ (1726). On p. 45, Madox refers only to the
_Inspeximus_ of Edward I.
Footnote 297:
Robert Brady, _Complete History of England_, p. 126 of Appendix to
Vol. I. (1685), takes his text of the Charter from Matthew Paris,
“compared with the manuscript found in Bennet College Library.”
Footnote 298:
James Tyrrell, _History of England_ (1697-1704). In p. 9 of Appendix
to Vol. II. p. 821, Tyrrell prints a text of John’s Charter founded on
that of M. Paris, collated with those two originals.
Footnote 299:
Henry Care, _English Liberties in the Freeborn subjects’ inheritance;
containing Magna Charta_, etc. (1719), p. 5. The first edition, with a
somewhat different title, is dated 1691.
Footnote 300:
Strangely enough, Sir Thomas Duffus Hardy, so recently as 1837, in
publishing his _Rotuli Chartarum_ (Introduction, p. ii. note 5)
declared that no original of John’s Charter existed. Many copies, he
knew, had been "made and deposited, for the sake of perpetuation, in
all the principal religious houses in the kingdom. However,
notwithstanding all the care taken by multiplication of copies, it is
singular that no contemporary copy of King John’s Magna Carta has yet
been found." The Lincoln MS. he dismissed as “certainly not of so
early a date,” while he confuses the only one of the British Museum
MSS. known to him with the Articles of the Barons. He further
reasserts the fallacy, so clearly exposed by Blackstone eighty years
earlier, that John had issued a separate _Carta de Foresta_.
-----
As these four versions are practically identical in their substance—the
variations being merely in the use of contractions or in other verbal
changes of a trivial character—no important question seems to be
involved in the discussion as to whether any one of them has greater
value than the others. The Record Commissioners considered that the
Lincoln copy was the first to be completed (and therefore that it
possessed special authority), because, unlike the two Cottonian copies,
it contained no insertions at the foot of the instrument. Yet it seems
more plausible to argue that this very immunity from clerical errors, or
from additions made after engrossment, proves that it was of later and
less hurried execution than the others, and therefore of less authority,
if any distinction is permissible. Mr. Thomson has much ground for his
contention in speaking of the fire-marked version in the British Museum
that “the same circumstances may probably be a proof of its superior
antiquity, as having been the first which was actually drawn into form
and sealed on Runnymede, the original whence all the most perfect copies
were taken.”[301]
-----
Footnote 301:
Thomson, _Magna Charta_, 422.
-----
In all printed texts of Magna Carta, the contents are divided into a
preamble and sixty-three chapters, and each chapter is numbered and
treated in a separate paragraph by itself. There is no warrant for this
in any one of the four originals, all of which run straight on from
beginning to end, like other feudal charters, and contain no numbers or
other indication where one provision ends and another begins. Strictly
speaking, Magna Carta has thus no chapters: these are a modern
invention, made for convenience of reference.
III. _The Articles of the Barons._ Of hardly inferior historical
interest to these four original copies of the Great Charter is the
parchment which contains the heads of the agreement made between John
and the rebels on 15th June, 1215, from which the Charter was afterwards
expanded. The parchment containing these heads, known as the Articles of
the Barons, is now in the British Museum, cited officially as “Donation
MSS. 4838.” The seven centuries which have passed over it have left
surprisingly few traces; it is quite legible throughout, and still bears
the impression of John’s great seal in brown wax. It is probable that
this document may have passed with other English records into the hands
of Prince Louis during the civil war which followed close on the
transaction at Runnymede; that it was handed over to the Regent William
Marshal in terms of the Treaty of Lambeth concluded in September, 1217;
and that thereafter it was deposited in Lambeth Palace, where it
remained until the middle of the seventeenth century. Archbishop Laud
seems to have been aware of its historical interest, as he placed it
among the more precious documents in his keeping. When threatened with
impeachment by the Long Parliament, he thought it prudent to set his
papers in order; and on 18th December, 1640, he dispatched for that
purpose to his episcopal palace, his friend Dr. John Warner, Bishop of
Rochester.
There was indeed no time to lose; a few hours later, Laud was committed
to the custody of Black-Rod, and an official messenger was sent by the
House of Lords to seal up his papers. Bishop Warner had, however,
escaped with the Articles of the Barons before this messenger arrived;
he kept it till he died, and at his death it passed to one of his
executors named Lee, and from him to his son Colonel Lee, who presented
it to Gilbert Burnet, afterwards Bishop of Salisbury and author of the
famous _History of His Own Time_. When the Salisbury Magna Carta
disappeared, Burnet was suspected of appropriating it to his own uses.
The grounds which gave some apparent weight to the misrepresentations of
his political opponents were that special facilities had been granted to
him to search public records in the prosecution of his historical
labours, and that as matter of fact he actually had in his
possession—quite lawfully, as we now know—the Articles of the Barons,
which was confused by the carelessness of early historians with Magna
Carta itself. The calumny was so widely spread that Burnet thought it
necessary formally to refute it, explaining that he had received the
Articles as a gift from Colonel Lee. “So it is now in my hands, and it
came very fairly to me.”
Bishop Burnet left it as a legacy to his son Sir Thomas Burnet; and on
his death it passed to his executor David Mitchell, whose permission to
print it Blackstone obtained in 1759. Shortly thereafter it was
purchased from Mr. Mitchell’s daughter by another great historian,
Philip, second Earl of Stanhope, and by him it was presented to the
British Museum in 1769. It is now exhibited to the public along with the
two Cottonian copies of Magna Carta. The Record Commissioners have
reproduced it in facsimile in _Statutes of the Realm_ in 1810, and also
in the _New Rymer_ in 1816.[302]
-----
Footnote 302:
Reproductions of it, as well as of the second Cottonian version of the
Charter, are sold by the authorities of the British Museum at the
price of 2s. 6d.
-----
The document begins with this headline: “_Ista sunt Capitula quae
Barones petunt et dominus Rex concedit._” Then the articles follow in 49
paragraphs of varying length, separate, but unnumbered, each new chapter
(unlike the chapters of Magna Carta, which run straight on as befits its
character as a charter) beginning a new line. The numbers which
invariably appear in all printed editions have no warrant in the
original.
A blank space sufficient for two lines of writing occurs between
paragraphs 48 and 49, indicating perhaps that the last chapter, which
contains the revolutionary provision for the appointment of the
twenty-five Executors, had been added as an after-thought. Chapters 45
and 46 are connected by a rude bracket, and a clause is added in the
same hand as the rest, but more rapidly, modifying the provisions of
both in the King’s favour. This, at least, is clearly an
after-thought.[303]
-----
Footnote 303:
_Cf. supra_, p. 47, and Blackstone, _Great Charter_, xvii.
-----
IV. _The so-called “unknown Charter of Liberties.”_ Among the French
archives there is preserved the copy of what purports to be a charter
granted by King John, but irregular in its form. This document is
preserved among the _Archives du Royaume_ in the _Section Historique_
and numbered J. 655.[304] A copy of this copy was discovered at the
Record Office in London by Mr. J. Horace Round in 1893, previous to
which date it seems to have been practically unknown to English
historians, although it had been printed by a French writer thirty years
earlier.[305] Mr. Round communicated his discovery of this “unknown
charter of liberties” to the _English Historical Review_, in the pages
of which there ensued a discussion as to its nature and validity,
inaugurated by him. Three theories were suggested: (_a_) Mr. Round
maintained that the document was a copy, in a mangled form perhaps, of a
charter actually granted in the year 1213 by King John to the northern
barons, containing concessions which they had agreed to accept in
satisfaction of their claims.[306] (_b_) Mr. Prothero preferred to view
it, not as an actually executed charter, given and accepted in
settlement of the various claims in dispute, but rather as an abortive
proposal made by the King early in 1215 and rejected by the barons.[307]
(_c_) Mr. Hubert Hall dismissed the document as a forgery, and described
it as "a coronation charter attributed to John by a French scribe in the
second decade of the thirteenth century"—probably between November,
1216, and March, 1217, when King Philip desired to prove that John had
committed perjury by breaking his promises, and had thereby forfeited
his right to the Crown of England.[308]
-----
Footnote 304:
See the account given by Mr. Hubert Hall, _English Historical Review_,
IX. 326.
Footnote 305:
Alexandre Teulet, _Layettes du Trésor_, I. p. 423 (1863).
Footnote 306:
_Engl. Hist. Rev._, VIII. 288-294.
Footnote 307:
_Ibid._, IX. 117-121.
Footnote 308:
_Ibid._, IX. 326-335.
-----
Mr. Hall describes the method of procedure adopted by the compiler of
this supposed forgery. Placing in front of him copies of Henry I.’s
Charter of Liberties and of Henry III.’s charters issued in 1216-17, he
proceeded to select from these sources whatever suited his purpose, and
thereafter “either by design or carelessness, or ignorance of English
forms, he altered the wording of both his originals so as to produce the
effect of a paraphrase interspersed with archaisms.” This extremely
ingenious theory is not entirely convincing. Not to insist on the number
of unproved inferences on which it is based, it seems to have one grave
defect—it ignores the absurdity of attempting to obtain credence for
such a clumsy composition, especially when it was well known that John
had never granted a coronation charter at all. Even if a skilful forger
could have utilized the document as the basis for a completed charter,
this would still have required the impress of John’s great seal to give
it validity. Such an imposture could not be seriously intended to impose
on any one.
A fourth theory may be suggested very tentatively, namely, that the
document in question is a copy of the actual schedule drawn up by the
barons previous to 27th April, 1215. That such a schedule existed we
know from the express declaration of Roger of Wendover,[309] who informs
us that it was sent to the King with the demand that his seal should be
forthwith placed to it, under threat of civil war. From this, it is safe
to infer that the schedule, as it left the barons’ hands, was ready for
execution; but lack of experience in drawing up Crown charters would
prevent them from producing an entirely regular instrument. They would
assuredly take as their model the charter of Henry I., which had helped
to give definiteness of aim to all their efforts. It would be necessary,
however, to bring this up to date, by additions which we might _a
priori_ expect to resemble the provisions afterwards adopted with more
elaboration in the agreement made at Runnymede. This schedule, then,
rapidly thrown together, would be likely to contain many of the
characteristics actually discovered by Mr. Hall in the document under
discussion. Such an identification of the “unknown Charter of Liberties”
with the schedule of 27th April, 1215, would explain all the features
emphasized by Mr. Hall—the archaisms, the erroneous style, and the
employment, first of the third person singular, and then of the first
person singular, instead of using throughout the first person plural
invariably used by John. It would also explain why the first half of the
parchment on which the “unknown charter” is written, contains a copy of
Henry I.’s charter, and why the two possess so many features in common.
-----
Footnote 309:
R. Wendover, III. 298, and _cf. supra_, p. 40.
-----
It would clearly be inadvisable to found any conclusions upon the terms
of a document, the nature and authenticity of which form the subject of
so many rival theories; but even if further investigation proves it to
be a forgery, a forgery of contemporary date may throw light on
otherwise obscure passages in genuine charters. One or two instances of
this will be found in the sequel.
II. Previous Editions and Commentaries.
Every general history of England and almost every book which has ever
appeared on English law has had something to say by way of commentary on
Magna Carta. It is perhaps for this very reason that exceedingly few
treatises have been devoted exclusively to its elucidation. While
edition after edition of the text of the Charter, or of its re-issues,
have appeared, few of these have been accompanied by explanations
however brief. The paucity of attempts to explain the meaning of the
Charter is almost more remarkable than the frequency with which the text
has been reproduced. Magna Carta is a document often printed, but seldom
explained.
I. _Printed Editions of the Text of Magna Carta._ Previous to 1759 even
the best informed writers on English history laboured under much
confusion in regard to the various charters of liberties. Few of them
seem to have been aware that fundamental differences existed between the
original charter granted by John and the re-issues of Henry III. Much of
the blame for this confusion must be borne by Roger of Wendover, who, in
his account of the transactions at Runnymede, incorporated, in place of
John’s Charter, the text of the two charters granted by Henry.[310]
-----
Footnote 310:
R. Wendover, III. 302-318.
-----
The early historians were content to rely either on this version or on
that contained in the _Inspeximus_ of Edward I. Thus, in all early
printed collections of statutes, the text which professes to represent
the original Charter follows in reality the words of Henry’s third
re-issue. The very earliest printed edition of Magna Carta seems to have
been that published on 9th October, 1499, by Richard Pynson, the King’s
printer,[311] and a contemporary of Wynkyn de Worde. This was not, of
course, John’s Charter, but followed Edward’s _Inspeximus_ of Henry’s
Charter of 1225.
-----
Footnote 311:
This date is given by Bémont, _Chartes_, lxxi., but Robert Watt in his
_Bibliotheca Britannica_, Thomson, _Magna Charta_, 450, and Lowndes,
_Bibliographer’s Manual_, 1449, all give the date of the earliest
edition as 1514. Bémont, lxxi., and Thomson, 450–460, Watt, and
Lowndes furnish details of the various editions of Pynson, Redman,
Berthelet, Tottel, Marshe, and Wight, from 1499 to 1618. All of these
are now superseded by the _Statutes of the Realm_, published by the
Record Commission in 1810.
-----
Since the middle of the eighteenth century, many editions of the text of
John’s Great Charter have been published, either alone or along with the
text of the various re-issues of the reign of Henry III.; but it seems
unnecessary to mention more than four of these.
(1) In 1759 appeared Sir William Blackstone’s scholarly work entitled
_The Great Charter and The Charter of the Forest_, containing accurate
texts of all the important issues of the Charters of Liberties carefully
prepared from the original manuscripts so far as these were known to
him.[312]
-----
Footnote 312:
The substance of this admirable edition, now unhappily scarce, has
been reproduced in the same author’s _Tracts_ (1762).
-----
(2) In some respects the Record Commissioners have improved even on
Blackstone’s work in their edition of the _Statutes of the Realm_,
published in 1810. A special section of the volume is devoted to
Charters of Liberties, where not only the grants of John and Henry III.,
but also the charters which led up to them, and their subsequent
confirmations, have received exhaustive treatment.
(3) A carefully revised text, _Magna Carta regis Johannis_, was
published by Dr. Stubbs in 1868; and the various charters are also to be
found, arranged in chronological order, in his well-known volume, first
published in 1870, entitled _Select Charters and other illustrations of_
_English Constitutional History_, a convenient collection easily
accessible to all students of law and history.
(4) For the continuous study of the sequence of charters, the best book
of reference is _Chartes de Libertés Anglaises_ by M. Charles Bémont
published in 1892, in the pages of which the various editions of John’s
and Henry’s charters will be found in a form convenient for comparison
with each other, and with previous and succeeding documents.
II. _Commentaries and Treatises._ It is doubtful whether any good
purpose would be served by the preparation of a list of all the books
which contain casual references to Magna Carta or to its provisions; and
it is clear that the task would be an extremely burdensome one. There is
no difficulty, however, in naming the few treatises of outstanding merit
which have been exclusively or mainly devoted to the exposition of the
Great Charter. Of these only nine require special mention.
(1) The mysterious medieval lawbook known as the _Mirror of Justices_
contains a chapter upon Magna Carta which has some claims to rank as a
commentary, although it represents the opinions of a political
pamphleteer rather than those of an unbiassed judge. The date of this
treatise is still the subject of dispute. It has been usual to place it
not earlier than the years 1307-27, mainly because it makes mention of
“Edward II.” Prof. Maitland, however, dates it earlier, maintaining on
general grounds that it was “written very soon after 1285, and probably
before 1290.”[313] He explains the reference to “Edward II.” as applying
to the monarch now generally known in England as Edward I., but
sometimes in his own reign known as Edward II., to distinguish him from
an earlier Edward, still enshrined in the popular imagination, namely,
Edward Confessor. Mr. Maitland is not disposed to treat this work of an
unknown author too seriously, and warns students against “his ignorance,
political bias, and deliberate lies.”[314]
-----
Footnote 313:
See _The Mirror of Justices_ (edited for the Selden Society by Prof.
Maitland), _Introd._, xxiii. to xxiv.
Footnote 314:
_Ibid._, xxxvii. _Cf._ xlviii.
(2) Dismissing the _Mirror_, then, as a dangerous and possibly
disingenuous guide, the earliest serious commentary known to exist is
that of Sir Edward Coke, formerly Lord Chief Justice. This elaborate
treatise, forming the second of Coke’s four _Institutes_, was published
in 1642 under direction of the Long Parliament, the House of Commons
having given the order on 12th May, 1641.[315]
-----
Footnote 315:
See _Dictionary of National Biography_, XI. 243.
-----
Although this commentary, like everything written by Coke, was long
accepted as a work of great value, its method is in reality entirely
uncritical and unhistorical. The great lawyer reads into Magna Carta the
entire body of the common law of the seventeenth century of which he was
admittedly a master. He seems almost unconscious of the great changes
accomplished by the experience and vicissitudes of the four eventful
centuries which had elapsed since the Charter had been originally
granted. The various clauses of Magna Carta are thus merely occasions
for expounding the law as it stood, not at the beginning of the
thirteenth century, but in his own day. In the skilful hands of Sir
Edward, the Great Charter is made to attack the abuses of James or
Charles, rather than those of John or Henry, which its framers had in
view. In expounding the _judicium parium_, for example, he carefully
explains many minute details of procedure before the Court of the Lord
High Steward, and describes elaborately the nature of the warrants to be
issued prior to the arrest of any one by the Crown; while, in the clause
of Henry’s Charter which secures an open door to foreign merchants in
England “unless publicly prohibited,” he discovers a declaration that
Parliament shall have the sole power to issue such prohibitions,
forgetful that the regulation of trade was an exclusive prerogative of
the Crown with which Parliament had no right to interfere for many
centuries subsequent to the reign of Henry III.
(3) In 1680 Mr. Edward Cooke, barrister, published a small volume
entitled _Magna Charta made in the ninth year of King Henry III. and
confirmed by King Edward I. in the twenty-eighth year of his reign_.
This contained a translation of Henry’s Magna Carta with short
explanatory notes founded mainly on the commentary of Sir Edward Coke.
In his Preface, Mr. Cooke declared that his object was to make the Great
Charter more accessible to the public at large, since, as he said, “I am
confident, scarce one of a hundred of the common people, know what it
is.”
(4) Sir William Blackstone’s _Introduction_ to his edition of the
charters, published in 1759, as already mentioned, contains valuable
information as to the documents he edits; but he explicitly disclaims
all intention of writing a Commentary. He is careful to state “that it
is not in his present intention, nor (he fears) within the reach of his
abilities, to give a full and explanatory comment on the matters
contained in these charters.”[316]
-----
Footnote 316:
Introduction, p. ii.
-----
(5) The Hon. Daines Barrington published in 1766 his _Observations upon
the Statutes from Magna Charta to 21 James I._ This book contains some
notes on the Charter also founded chiefly upon Coke’s _Second
Institute_; his original contributions are not of outstanding value.
(6) In 1772 Prof. Francis Stoughton Sullivan gave to the public his
course of lectures previously delivered in the University of Dublin
under the title _An Historical Treatise on the Feudal Law, with a
Commentary on Magna Charta_. The author’s own words give a sufficiently
accurate conception of its scope and value: “I shall therefore proceed
briefly to speak to _Magna Charta_, and in so doing shall omit almost
all that relates to the feudal tenures, which makes the greatest part of
it, and confine myself to that which is now law.”[317]
-----
Footnote 317:
See p. 375 of the work cited.
-----
(7) Mr. John Reeves’ invaluable _History of English Law_, the first
edition of which appeared in 1783-84, marked the commencement of a new
epoch in the scientific study of the genesis of English law. Treating
incidentally of Magna Carta, he shows wonderful insight into the real
purport of many of its provisions, but the state of historical knowledge
when he wrote rendered many serious errors inevitable.
(8) In 1829, Mr. Richard Thomson published an elaborate edition of the
charters combined with a commentary which contains much useful
information, but makes no serious attempt to supplement the unhistorical
explanations of Sir Edward Coke by the results of more recent
investigations in the provinces of law and history. His work is a
storehouse of information which must, however, be used with caution.
(9) In many respects, the most valuable contribution yet made to the
elucidation of the Great Charter is that contained in M. Charles
Bémont’s preface to his _Chartes des Libertés Anglaises_, published in
1892. Although he has subjected himself to the severe restraints imposed
by the slender size of his volume and by a rigid desire to state only
facts of an undisputed nature, leaving theories strictly alone; he has,
nevertheless, done much to help forward the study of the charters. In
particular he has performed an important service by insisting upon the
close mutual connection between the various Charters of Liberties, from
that of Henry I. down to the confirmations of Edward I., and of
subsequent kings. It is doubtful, however, whether by this very
insistence upon the gradual process of development which may be traced
in this long series, he does not lay himself open to the misconception
that he takes too narrow a view of the scope and relations of the
Charter. Magna Carta’s points of contact with the past and future
history of English liberties and English laws and institutions must not
be narrowed down to those occurring in one straight line. Its
antecedents must not be looked for exclusively among documents couched
in the form of charters, nor its results merely in their subsequent
confirmations. It is impossible to understand it aright, except in close
relation to all the varied aspects of the national life and the national
development. Every Act appearing on the Statute Rolls is, in a sense, an
Act amending Magna Carta; while such enactments as the Statute of
Marlborough and the Statute of Westminster I. have as intimate a
connection with John’s Great Charter as the _Confirmatio Cartarum_ or
the _Articuli super Cartas_ have. This is a truth which M. Bémont
undoubtedly recognizes, though the scheme of his book led him rather to
emphasize another and, at first sight, contradictory aspect of his
subject. His object was not to explain the numerous ways in which the
Charters of Liberties are entwined with the whole of English history,
but merely to furnish a basis for the accurate study of one of their
most important features. His book is indispensable, but is not intended
to form, in any sense, a commentary on Magna Carta.
It would thus appear that only two serious attempts have been made to
produce treatises forming, explicitly and exclusively, commentaries on
the Great Charter, namely the _Second Institute_ of Coke and the
laborious and useful work of Mr. Richard Thomson. Since Mr. Thomson’s
_Magna Charta_ appeared, three-quarters of a century have passed,
marking an enormous advance in historical and legal science; yet the
results of modern research, so capable of throwing light on the
subject-matter of the Great Charter, have never been systematically
brought to bear upon it. Dr. Stubbs, from whom such a work would have
been especially welcome, contented himself with giving a paraphrase or
abstract of the Charter, rendering into English equivalents as literally
as possible the actual words of his Latin text—a cautious course, which
cannot lead his disciples astray, but leaves them to the guidance of
their own ignorance rather than of his knowledge. The reason given by
Dr. Stubbs for keeping silence is rather the excess than the absence of
information. “The whole of the constitutional history of England,” he
tells us, “is little more than a commentary on Magna Carta.”[318] It is
for this reason, presumably, that he refrains from all explanations and
confines himself to an abstract of its main provisions. While thus many
invaluable hints may be obtained from the pages of the three volumes of
his history, and from his other works, Dr. Stubbs has not in any of his
published writings contributed anything of the nature of a direct
commentary upon John’s Great Charter. In this policy, he has been
followed by the members of the great modern school of English historians
of which he is the founder.[319]
-----
Footnote 318:
See _Const. Hist._, I. 572, and cf. _Select Charters_, 296.
Footnote 319:
One of the most brilliant members of that school, Mr. Prothero, whose
power of rendering difficult subjects both lucid and interesting would
specially have qualified him for the task of explaining Magna Carta,
declines the task partly upon the ground that it would be impossible
"to throw any new light on a subject exhausted by the ablest
writers."—_S. de Montfort_, p. 14.
-----
Many valuable hints may be obtained from other writers such as Dr.
Gneist, Sir Edward Creasy, Mr. Taswell Langmead, Dr. Hannis Taylor, Miss
Norgate, and Sir James Ramsay,[320] but their efforts to explain the
meaning of the Great Charter take the form of disconnected notes, rather
than of exhaustive commentaries.[321]
-----
Footnote 320:
The works of these and other authors are mentioned in the Appendix.
Footnote 321:
It is unnecessary to do more than mention _A Historical Treatise on
Magna Charta_ by Mr. Boyd C. Barrington, of the Philadelphia Bar
(1899), of which the author says (p. ii.): “No claim is made for
originality, but solely for research, which has been exhaustive in
every line I can pursue.” It is dismissed by his distinguished
fellow-countryman, Dr. Gross (_Sources and Literature of English
History_, p. 348), as “of little value.”
-----
TEXT, TRANSLATION, AND COMMENTARY.
MAGNA CARTA.
PREAMBLE.[322]
Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et
Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus,
comitibus, baronibus, justiciariis, forestariis, vicecomitibus,
prepositis, ministris et omnibus ballivis et fidelibus suis salutem.
Sciatis nos intuitu Dei et pro salute anime nostre et omnium
antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte
Ecclesie, et emendacionem regni nostri, per consilium venerabilium
patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie
primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis
archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini
Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri
Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis
episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris,
fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum
Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie,
Willelmi comitis Warennie, Willelmi comitis Arundellie, Alani de
Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii
Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla,
Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de
Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii
Hugonis et aliorum fidelium nostrorum.
-----
Footnote 322:
The division of Magna Carta into a preamble and sixty-three chapters
is a modern device, for convenience of reference, for which there is
no warrant in the Charter itself. Cf. _supra_, 200. No title or
heading precedes the substance of the deed in any one of the four
known originals, but on the back of the Lincoln one (cf. _supra_, 197)
these words are endorsed;—“_Concordia inter Regem Johannem et Barones
pro concessione libertatum ecclesie et regni Anglie_.” The form of the
document is discussed _supra_, 123-9. The text is taken from that
issued by the Trustees of the British Museum founded on the Cottonian
version No. 2. Cf. _supra_, 196.
John, by the grace of God, king of England, lord of Ireland, duke of
Normandy and Aquitaine, and count of Anjou, to the archbishops,
bishops, abbots, earls, barons, justiciars, foresters, sheriffs,
stewards, servants, and to all his bailiffs and liege subjects,
greeting. Know that, looking to God and for the salvation of our soul,
and those of all our ancestors and heirs, and unto the honour of God
and the advancement of holy Church, and for the reform of our realm,
[we have granted as underwritten][323] by advice of our venerable
fathers, Stephen, archbishop of Canterbury, primate of all England and
cardinal of the holy Roman Church, Henry archbishop of Dublin, William
of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh
of Lincoln, Walter of Worcester, William of Coventry, Benedict of
Rochester, bishops; of master Pandulf, subdeacon and member of the
household of our lord the Pope, of brother Aymeric (master of the
Knights of the Temple in England), and of the illustrious men,[324]
William Marshall, earl of Pembroke, William, earl of Salisbury,
William, earl Warenne, William, earl of Arundel, Alan of Galloway,
(constable of Scotland), Waren Fitz Gerald, Peter Fitz Herbert, Hubert
de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert,
Thomas Basset, Alan Basset, Philip of Albini, Robert of Ropesle, John
Marshall, John Fitz Hugh, and others, our liegemen.
-----
Footnote 323:
The sentence is concluded in chapter one (see _infra_)—the usual
division, here followed, being a purely arbitrary one.
Footnote 324:
The phrase “_nobiles viri_” was not used here in any technical sense;
the modern conception of a distinct class of “noblemen” did not take
shape until long after 1215. Cf. what is said of “peerage” under cc.
14 and 39.
-----
The Great Charter of John opens, in the form common to all royal
charters of the period, with a greeting from the sovereign to his
magnates, his officials, and his faithful subjects, and announces, in
the pious legal formula used by impious and pious kings alike, that he
had made certain grants by the advice of those counsellors whom he
names. Three features of this preamble call for comment.
I. _The King’s Title._ Some points of interest are suggested by the form
of the royal style adopted by John, which is connected by an unbroken
thread of development with that of William I. on the one hand, and of
His Majesty, Edward VII., on the other. John’s assumption of the royal
plural “_Sciatis Nos_” reads, in the light of subsequent history, as a
tribute to his arrogance rather than to his greatness, when compared
with the humbler first person singular consistently used by his more
distinguished father. In this particular, however, Richard, not John,
had been the innovator on the usage of Henry II.[325] For a further
alteration in the royal style John was alone responsible. To the titles
borne by his father and brother, John invariably added that of “lord of
Ireland,” a reminiscence of his youth. When the wide territories of
Henry II., had been distributed among his elder sons, the young John
(hence known as “John Lackland”) was left without a heritage, until his
father bestowed on him the island of Ireland, recently appropriated; and
this brought with it the right to style himself “_dominus Hibernie_.”
This title of his younger days was not unnaturally retained by him after
he had outlived all his brothers and inherited their wide lands and
honours.
-----
Footnote 325:
Coke (_Second Institute_, pp. 1-2) is here in error; he makes John the
innovator.
-----
John began his reign in 1199 as ruler over the undivided possessions of
the House of Anjou at their widest stretch, extending without a break,
other than the waters of the Channel, from the Cheviots to the Pyrenees.
These lands were held by John, as by his father, under a variety of
titles and conditions. Anjou, the original home and fief of the
hot-blooded Plantagenet race, still carried with it only the modest rank
of count. In addition to this paternal title, Henry II. had, at an early
age, become duke of Normandy in his mother’s right, and thereafter duke
of Aquitaine by marriage with Eleanor, its heiress. These three great
fiefs were held by Henry and his sons under the king of France as their
lord paramount. Long before 1215, John’s bad fortune or incompetence had
lost to him these wide continental dominions except the most distant of
them all, his mother’s dowry of Aquitaine. His ancestral domains of
Anjou and Normandy had been irretrievably lost, but he still retained
their empty titles; and in this his son Henry III. followed him,
grasping the shadow long after the substance had fled. Entries relating
to Gascony frequently appear on the Rolls of Parliament of Edward I.;
and the kings of England were styled dukes of Aquitaine, dukes of
Guienne, or dukes of Gascony (the three descriptions being used
indifferently) until Edward III. merged all these titles in a wider one,
when he claimed the throne of France.
England alone, of John’s possessions, real and nominal, was held by the
higher style of “_Rex_,” implying strictly sovereign rule, independent
of any overlord, and retained by John in 1215 in spite of his recent
acceptance of Innocent III. as feudal overlord. Of Ireland, John was
still content to describe himself, as formerly, “lord,” not king. The
exact meaning of the word “_Dominus_” in medieval charters, particularly
in those of Stephen, has been made the subject of much learned
controversy; which has not yet resulted in a consensus of opinion as to
the technical meaning, if any, borne by the word.[326] “_Dominus_,”
indeed, seems to have been loosely used wherever something of substance
or of ceremonial was lacking from the full sovereignty implied in the
more specific name of king. In this connection much stress was laid on
the solemn sacrament of coronation, implying among other things formal
consecration by the church.[327]
Footnote 326:
Various theories will be found in Round’s _Geoffrey de Mandeville_,
70; Dr. Rüssler’s _Matilde_, 291–4; and Ramsay’s _Foundations of
England_, II. 403.
Footnote 327:
Cf. _supra_, p. 119.
-----
John’s connection with England, then, is expressed in two simple words,
“_Rex Anglie_,” no explanation being vouchsafed of how he had acquired
this title. Such vindication, indeed, was not called for, as this was no
coronation charter, John having already reigned for fifteen years
without any serious rival—the claims of Arthur, the son of his elder
brother Geoffrey, never having been taken seriously in England.[328] The
simple words, “_Dei gratia rex Anglie_,” may be contrasted with the
detailed titles set out in the coronation charters of Henry I. and
Stephen respectively. Henry I. in 1100 had emphasized his relationship
to preceding kings, describing himself as “_Filius Willelmi regis post
obitum fratris sui Willelmi, Dei gracia rex Anglorum_”;[329] while
Stephen in April, 1136, in his second and more deliberate charter, used
an entirely different formula, “_Dei gracia assensu cleri et populi in
regem Anglie electus, et a Willelmo Cantuarensi archiepiscopo et sancte
Romane ecclesie legato consecratus, et ab Innocentio sancte Romane sedis
pontifice postmodum confirmatus_,”[330] the laboured nature of which
betrays the consciousness of weakness.
-----
Footnote 328:
Geoffrey’s daughter Eleanor was in 1215, a prisoner in Corfe Castle.
See _infra_, c. 59.
Footnote 329:
See Appendix.
Footnote 330:
See Appendix.
-----
Thus Henry I. and Stephen each laid stress on the strong points of his
title and ignored its defects. These two claims of kingship express, in
a crude form, two rival theories of the title to the English Crown—(1)
hereditary succession, and (2) election. Neither of these is an accurate
reflection of the full theory and practice of the twelfth century, which
blended both principles in proportions not easy to define with accuracy.
Professor Freeman has pushed to excess the supposed right of the
Witenagemot to elect the king, and has transferred wholesale to the
Norman _Curia_ (which, in some respects, took its place) all the powers
enjoyed by its forerunner. A recent German writer, Dr. Oskar
Rössler,[331] has gone equally far in the opposite direction, flatly
denying that the Normans ever admitted the elective element at all. The
theory now usually held is a mean between these extremes, namely that
the Norman _Curia_ (or the chief magnates who usually composed it) had a
limited right of selecting among the sons, brothers, or near relations
of the last king, the individual best suited to succeed him. Such a
right, never authoritatively enunciated, gradually sank to an empty
formality. Its place was taken, to some extent, by the successful
assertion by the spiritual power (usually represented by the archbishop
of Canterbury), of a claim to give or withhold the consecrating oil
which accompanied the church’s blessing. Without this no _dominus_ could
be recognized as _rex_. On this theory the descriptions of their own
titles given by Henry I. and Stephen were alike incomplete: each ignored
the facts which did not suit him. John, on the contrary, secure in
possession, condescends on no particulars, but contents himself with the
terse assertion of the fact of his kingship: “_Johannes, dei gratia, Rex
Anglie_.”
-----
Footnote 331:
_Matilde_, _passim_.
-----
II. _The Names of the Consenting Nobles._ It was natural that the
Charter should place formally on record the assent of those counsellors
who attended John when he made terms with his enemies, of those magnates
who remained in at least nominal allegiance, and were therefore capable
of acting as the mediators by whose good offices peace was for a time
restored.[332] The leading men in England during this crisis may be
arranged in three groups: (1) the leaders of the great host openly
opposed to John at Runnymede; (2) the agents of John’s oppressions,
extreme men, mostly aliens, many of whom were in command of royal
castles or of mercenary levies ready to take the field; and (3) moderate
men, mostly churchmen or John’s ministers or relations, who, whatever
their sympathies might be, remained in allegiance to the king and helped
to arrange terms of peace—a comparatively small band, as the paucity of
names recited in Magna Carta testifies.[333] The men, here made
consenters to John’s grant of Magna Carta, are again referred to, though
not by name, in chapter 63, in the character of witnesses.
-----
Footnote 332:
Dr. Stubbs, _Const. Hist._, I. 582, gives the motive of thus naming
them as “the hope of binding the persons whom it includes to the
continued support of the hard-won liberties.” Those named were all
moderate men. M. Paris (_Chron. Maj._ II., 589) describes them as
“_quasi ex parte regis_,” while Ralph of Coggeshall (p. 172) narrates
how “by the intervention of the Archbishop of Canterbury, with a few
of his bishops and some barons, a kind of peace was made.” Cf. _Annals
of Dunstable_, III. 43. The neutrality of the prelates is proved by
other evidence. (_a_) C. 62 gave them authority to certify by letters
testimonial the correctness of copies of the Charter. (_b_) The 25th
of the Articles of the Barons left to their decision whether John
should enjoy a crusader’s privileges; while c. 55 gave Langton a
special place in determining what fines were unjust. (_c_) The Tower
of London was placed in the custody of the archbishop as a neutral man
whom both sides could trust. (_d_) Copies are preserved of two
protests on different subjects by the prelates in favour of the king.
See Appendix.
Footnote 333:
Cf. _supra_, 43–4, and for biographical information see authorities
there cited.
-----
III. _The Reasons of the Grant._ The preamble contains also a statement
of what purport to be John’s reasons for conceding the Charter. These
are quaintly paraphrased by Coke:[334] "Here be four notable causes of
the making of this great charter rehearsed. 1. The honour of God. 2. For
the health of the King’s soul. 3. For the exaltation of holy church, and
fourthly, for the amendment of the Kingdom." The real reason must be
sought in another direction, namely, in the army of the rebels; and John
in after days did not scruple to plead consent given under threat of
violence, as a reason for voiding his grant. The technical legal
“consideration,” the _quid pro quo_ which John received as the price of
this confirmation of their liberties was the renewal by his opponents of
the homage and fealty which they had solemnly renounced. This
“consideration” was not stated in the charter, but the fact was known to
all.[335]
-----
Footnote 334:
_Second Institute_, 1, n.
Footnote 335:
Cf. _supra_, 41.
-----
CHAPTER ONE.
In primis concessisse Deo et hac presenti carta nostra confirmasse, pro
nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera
sit, et habeat jura sua integra, et libertates suas illesas; et ita
volumus observari; quod apparet ex eo quod libertatem electionum, que
maxima et magis necessaria reputatur ecclesie Anglicane, mera et
spontanea voluntate, ante discordiam inter nos et barones nostros motam,
concessimus et carta nostra confirmavimus, et eam obtinuimus a domino
papa Innocencio tercio confirmari; quam et nos observabimus et ab
heredibus nostris in perpetuum bona fide volumus observari.[336]
Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et
heredibus nostris in perpetuum, omnes libertates subscriptas, habendas
et tenendas eis et heredibus suis, de nobis et heredibus nostris.
-----
Footnote 336:
Some editions of the Charter place here the division between c. 1 and
c. 2.
In the first place we have granted to God, and by this our present
charter confirmed for us and our heirs for ever that the English
church shall be free, and shall have her rights entire, and her
liberties inviolate; and we will that it be thus observed; which is
apparent from this that the freedom of elections, which is reckoned
most important and very essential to the English church, we, of our
pure and unconstrained will, did grant, and did by our charter confirm
and did obtain the ratification of the same from our lord, Pope
Innocent III., before the quarrel arose between us and our barons, and
this we will observe, and our will is that it be observed in good
faith by our heirs for ever. We have also granted to all freemen of
our kingdom, for us and our heirs forever, all the underwritten
liberties, to be had and held by them and their heirs, of us and our
heirs forever.
This first of the sixty-three chapters of Magna Carta here places side
by side, bracketed equal as it were, (_a_) a general confirmation of the
privileges of the English national church, and (_b_) a declaration that
the various civil rights to be afterwards specified in detail were
granted “to all freemen” of the kingdom and to their heirs for ever. The
manner of this juxtaposition of the church’s rights with the lay rights
of freemen, suggests an intention to make it clear that neither group
was to be treated as of more importance than the other. If the civil and
political rights of the nation at large occupy the bulk of the Charter,
and are defined in their minutest details, the church’s rights, of which
no mention whatever had been made in the Articles of the Barons, receive
here a prior place.[337] A twofold division thus suggests itself.
-----
Footnote 337:
Cf. _supra_, p. 50.
-----
I. _The rights of the National Church._ A general promise that the
English church should be free was accompanied by a special confirmation
of the separate charter recently granted guaranteeing freedom of
canonical election. (1) _Quod Anglicana ecclesia libera sit._ This
emphatic, if vague declaration, which has no counterpart in the Articles
of the Barons, is repeated twice in Magna Carta, each time in a
prominent position, at the beginning and the end respectively. If the
work of the barons showed no special tenderness for churchmen’s
privileges, Stephen Langton and his bishops were careful to have that
defect remedied in the formal document by which John expressed his final
consent. In extorting this promise of a “free” English church, the
prelates seem to have been satisfied that they need ask for nothing
more; the other particulars in which the Charter differs from its draft
show no trace of clerical bias. The phrase used, indeed, was deplorably
vague and elastic; it scarcely needed stretching to cover the widest
encroachments of clerical arrogance. Yet the formula was by no means a
new one; Henry I. and Stephen had successively confirmed the claim of
holy church to its freedom.[338]
-----
Footnote 338:
See these charters in Appendix.
Henry II. was careful to avoid making any such promises: his whole reign
was an effort, not unsuccessful in spite of the terrible disadvantage at
which he was placed by the murder of Becket, to deprive the church of
what her leaders considered her legitimate “freedom.” John in 1215,
however, receded from the ground occupied by his father, confirming by
the Great Charter the promise given by the weakest of his Norman
predecessors, in a phrase repeated in all subsequent confirmations.
It by no means follows that “freedom of the church,” as promised by
Stephen, meant exactly the same thing as “freedom of the church”
promised by John and his successors.[339] The value to be attached to
such assurances varied in inverse ratio to the strength of the kings who
made them, and this is well illustrated by a comparison of the charters
of Henry I., Stephen, and John. Henry qualifies the phrase by words
which illustrate if they do not limit its application. God’s holy church
was to be free “_so that_ I shall neither sell nor let to farm, nor on
the death of archbishop, bishop, or abbot, accept anything from the
demesne of the church or from its tenants, until his successor has
entered into possession.”[340] This suggests a somewhat narrow
interpretation of the church’s freedom—exemption mainly from the
iniquities of Rufus. Stephen’s charter, on the contrary, explains or
supplements the same phrase by definite declarations that the bishops
should have sole jurisdiction over churchmen and their goods, and that
all rights of wardship over church lands were renounced, thus making it
a “large and dangerous promise.”[341]
-----
Footnote 339:
It is perhaps worthy of note that while the charters of Henry I. and
Stephen spoke only of “holy church,” John speaks of the “English
church.” This change suggests a growth of patriotism among the
prelates, led by Stephen Langton.
Footnote 340:
Cf. _supra_, 117.
Footnote 341:
Cf. Pollock and Maitland, I. 74.
“Freedom of the church” had thus come in 1136 to include “benefit of
clergy” in a specially sweeping form, and much besides.[342] It is easy
to understand why churchmen cherished an elastic phrase which, wide as
were the privileges it already covered, might readily be stretched
wider. Laymen, on the contrary, contended for a more restrictive
meaning; and the Constitutions of Clarendon must be viewed primarily as
an attempt to arrive at definite conclusions on disputed points of
interpretation. Henry II. substantially held his ground, in spite of his
nominal surrender after Becket’s murder. Thanks to his firmness, "the
church’s freedom" shrank to more reasonable proportions, so that the
well-known formula, when repeated by John, was emptied of much of the
content found in it by Stephen’s bishops. If it still implied “benefit
of clergy” that phrase was now read in a more restricted sense, while
wardship over vacant sees was expressly reserved to the Crown by John.
Chapter 18 of Magna Carta accepted, apparently with the approval of all
classes, the principle that questions of church patronage (assizes of
darrein presentment)[343] should be settled before the King’s Justices,
a concession to the civil power inconsistent with the more extreme
interpretations formerly put by churchmen on the phrase.[344]
-----
Footnote 342:
Cf. _supra_, 120–1.
Footnote 343:
For explanation see _infra_, c. 18.
Footnote 344:
On the other hand c. 22, which lays down special rules for the
amercement of beneficed clerks, to that extent confirmed class
privileges of the clergy.
-----
In later reigns the pretensions of the church to privileged treatment
were gradually reduced to narrow bounds, and the process of compression
was facilitated by that very elasticity on which the clergy had relied
as being favourable to the expansion of their claims. It was the civil
government which benefited in the end from the vagueness of the words in
which Magna Carta declared _quod Anglicana ecclesia libera sit_.[345]
-----
Footnote 345:
Mr. J. H. Round (_Geoffrey de Mandeville_, 3), speaking of Stephen’s
“oath” to restore the church her “liberty,” describes this as “a
phrase the meaning of which is well known.” If “well” known, it was
known chiefly as something vague, something which baffled definition,
because churchmen and laymen could never agree as to its contents,
while it tended also to vary from reign to reign. Mr. Round attempts
no definition. Sir James Ramsay (_Angevin Empire_, p. 475), writing of
the phrase as used in John’s Charter, is less prudent. "It would
relieve the clergy of all lay control, and of all liability to
contribute to the needs of the State beyond the occasional scutages
due from the higher clergy for their knights’ fees." This definition
assuredly would not have satisfied Henry I., as a legitimate
interpretation of the words as used by him in his Charter of
Liberties.
(2) _Canonical election._ A separate charter to the national church had
been granted on 21st November, 1214, and re-issued on 15th January,
1215.[346] Its tenor may be given in three words, “freedom of election.”
In all cathedral and conventual churches and monasteries, the
appointment of prelates was to be free from royal intervention for the
future, provided always that licence to fill the vacancy had first been
asked of the king. Now, _in words_, this was no new concession, but
merely a confirmation of the Concordat arrived at long before between
Henry I. and archbishop Anselm as a solution of the rival claims of
Church and State in the election of bishops and abbots.[347] The essence
of that arrangement had been to vest solely in the canons of the chapter
of the vacant diocese the nominal right to appoint the new bishop,
subject, however, to the actual election taking place in the royal court
or chapel—so that the king, being present, might endeavour to prevent
the appointment of any churchman he objected to. The result had not been
what Anselm and the papal court expected; Henry I. and his successors
strenuously used or abused the influence thus reserved to them: none but
royal favourites were ever appointed, and the nominally free canonical
election became a sham. Churchmen had long desired to remedy this:
Langton saw his opportunity, and on 21st November, 1214, secured from
King John, so far as mere words could secure anything, that the right of
election by the canons of the chapter should henceforth be transformed
from a pretence into a reality. The bishops present at Runnymede used
their influence to have a distinct confirmation of this recent
concession inserted in the very forefront of Magna Carta.
-----
Footnote 346:
Cf. _supra_, p. 39. The text will be found in _Statutes of the Realm_,
I. 5, and in _New Rymer_, I. 126-7. It was confirmed by Innocent on
30th March, 1215. See Potthast, _Regesta pontificum romanorum_, No.
4963.
Footnote 347:
Cf. _supra_, p. 22.
-----
Their forethought was insufficient permanently to prevent royal
influence from bending canonical election to its will. Henry III.,
indeed, in his reissues was made to repeat the phrase _quod Anglicana
ecclesia libera sit_, but omitted all reference alike to canonical
election and to the charters of 21st November, 1214, and 15th January,
1215. Later in his reign, he took advantage of this, with the Pope’s
connivance or support, to reduce again the rights of cathedral chapters
in the appointment of bishops to the sinecure they had been before.
It is true that Henry III. was prone, alike by nature and from policy,
to lean on the papal arm, and that the _Curia_ at Rome rather than the
_Curia Regis_ for a time dominated the appointment to vacant sees. Henry
and Innocent IV. indeed formed a tacit alliance for dividing all fat
livings among their respective creatures, king’s men or pope’s men, who
had little interest in England or its welfare. Edward I., impatient of
foreign dictation as he was, had to submit to a partial continuance of
“provisions” for hangers-on of the papacy in his insular domains; but
the national church had little to gain. The canons elected the nominee
of king or pope, as each was, for the moment, in the ascendant.[348]
-----
Footnote 348:
Cf _supra_, p. 167.
-----
An interesting, if purely academic, question might be raised as to how
far the rights guaranteed by Magna Carta to the English church were
meant to imply freedom from papal as well as from royal interference. It
is clear that the movement which culminated in the charter of 21st
November, 1214, originated in England, not at Rome; and apparently
Nicholas, the papal legate at that date, opposed the endeavours of
Stephen Langton to obtain it. The archbishop indeed looked upon the
legate as the chief obstacle to the reform by the king of the grievances
of the national church.[349] In spite of Magna Carta, then, the
independence of the national church retrograded, rather than advanced,
during the long alliance between Henry III. and the successive occupants
of the papal throne.[350]
-----
Footnote 349:
See Miss Norgate, _John Lackland_, p. 208, and authorities there
cited.
Footnote 350:
Cf. Prothero, _Simon de Montfort_, p. 152. “The English church was
indeed less independent of the king in 1258 than in 1215, and far less
independent of the Pope than in the days of Becket.”
-----
II. _Civil and Political Rights._ After providing thus briefly for the
church, chapter one proceeds to give equal prominence, but at greater
length, to the grant or confirmation of secular customs and liberties.
This takes here the form of a general enacting clause, leaving details
to be specified in the remaining sixty-two chapters of the Charter. Some
of the more important points involved have already been discussed in the
Historical Introduction—for example, the feudal form of the grant,
better suited, according to modern ideas, to the conveyance of a
specific piece of land, than to the securing of the political and civil
liberties of a mighty nation; and the vexed question as to what classes
of Englishmen were intended, under the description of “freemen,” to
participate in these rights.[351]
-----
Footnote 351:
See _supra_, pp. 128-9 and 141-2. For the meaning of “freeman” and
Coke’s inclusion of villeins under that term for some purposes but not
for others, see _infra_, cc. 20 and 39.
-----
Another interesting point, though of minor importance, calls for
separate treatment. John does not state that his grants of civil and
political rights had been made spontaneously. Whether deliberately or
not, there is here a marked distinction between the phraseology applied
to secular and to ecclesiastical rights respectively. While the
concessions to churchmen are said to have been granted “_mera et
spontanea voluntate_,” no such statement is made about the concessions
to the freemen. John may have favoured this omission as strengthening
his contention that the Great Charter had been sealed by him under
compulsion. In the third re-issue of Henry III. (1225) this defect was
remedied—the words “_spontanea et bona voluntate nostra_” being used in
its preamble.[352] Some importance seems to have been attributed to this
addition, which formed the essence of a concession bought by the
surrender of one-fifteenth of the moveable property of all estates of
the realm.
-----
Footnote 352:
Cf. _supra_, p. 181.
-----
CHAPTER TWO.
Si quis comitum vel baronum nostrorum, sive aliorum tenencium de nobis
in capite per servicium militare, mortuus fuerit, et cum decesserit
heres suus plene etatis fuerit et relevium debeat, habeat hereditatem
suam per antiquum relevium; scilicet heres vel heredes comitis de
baronia comitis integra per centum libras; heres vel heredes baronis de
baronia integra per centum libras; heres vel heredes militis de feodo
militis integro per centum solidos ad plus; et qui minus debuerit minus
det secundum antiquam consuetudinem feodorum.
If any of our earls or barons, or others holding of us in chief by
military service shall have died, and at the time of his death his
heir shall be of full age and owe “relief,” he shall have his
inheritance on payment of the ancient relief, namely the heir or heirs
of an earl, £100 for a whole earl’s barony; the heir or heirs of a
baron, £100 for a whole barony; the heir or heirs of a knight, 100s.
at most for a whole knight’s fee; and whoever owes less let him give
less, according to the ancient custom of fiefs.
All preliminaries concluded, the Charter at once attacked what was, in
the barons’ eyes, the chief of John’s abuses, his arbitrary increase of
feudal obligations. The Articles of the Barons, indeed, had plunged at
once into this most crucial question without a word by way of pious
phrases or legal formulae, such as were necessary in a regular Charter.
I. _Assessment of Beliefs._ Each “incident” had its own special
possibilities of abuse, and the Great Charter deals with each of these
in turn. The present chapter defines the reliefs to be henceforth paid
to John.[353] The vagueness of the sums at first was a natural corollary
of the early doubts as to whether the hereditary principle was
absolutely binding or not. The heir with title not yet recognized was
keen to come to terms. The lord took as much as he could grind from the
inexperience or timidity of the youthful heir; the heir tried to profit
from the good nature or temporary embarrassments of the lord. All was
vague; and such vagueness favoured the strongest or most wily.
-----
Footnote 353:
Cf. _supra_, p. 73.
-----
A process of definition, however, was early at work; and progressed,
though slowly. Public opinion set limits of variation, to go beyond
which was considered unreasonable or even indecent. Some conception of a
“reasonable relief” was evolved. Yet the criterion varied: the Crown
might defy rules binding on others. Henry I., indeed, when bidding
against duke Robert in 1099 for the throne showed himself willing, in
words if not in practice, to accept the limits set by contemporary
opinion. His Charter of Liberties promised that all reliefs should be
_justa et legitima_—an elastic phrase no doubt, and one in after days
liberally interpreted by the exchequer officials in their royal master’s
favour. By the end of the twelfth century, when Glanvill wrote, the
exact sums which could be taken by mesne lords had been fixed; although
the Crown remained free to exact higher rates. _Baroniae capitales_, he
tells us, were charged relief, not at a fixed rate, but at sums which
varied _juxta voluntatem et misericordiam domini regis_.[354]
-----
Footnote 354:
Glanvill’s words (IX. c. 4) are unfortunately ambiguous. He
distinguishes three cases: (_a_) the normal knight’s fee, from which
100s. was due as relief (whether this extends to fees of crown tenants
does not appear); (_b_) socage lands, from which one year’s rent might
be taken; and (_c_) “_capitales baroniae_,” which were left subject to
reliefs at the king’s discretion. Now “barony” was a loose word:
baronies, like barons, might be small or great (cf. _infra_, c. 14);
all crown fiefs being “baronies” in one sense, but only certain larger
“honours” being so reckoned in another. Glanvill leaves this vital
point undetermined, but evidence from other sources makes it probable
that even smaller crown holdings should for this purpose be classed
under his _capitales baroniae_, and not with knights’ fees held from
mesne lords. Two passages from the _Dialogus de Scaccario_ (II. x. E.
p. 135 and II. xxiv. p. 155) clearly support the distinction between
all crown tenants (small as well as great) on the one hand, and
tenants of mesne lords on the other: only the latter had their reliefs
fixed, while the former were at the king’s discretion. (The second
passage shows how the exchequer officials held the onus of proof to
lie on the heir to a crown fief to show that he was worthy to succeed
his father, and suggests rich gifts to the king as the best form of
proof.) Madox (I. 315-6) cites from the Pipe Rolls large sums exacted
by the crown. Usually the number of knights’ fees paid for is not
specified, but in one case a relief of £300 was paid for six fees—that
is, at the rate of £50 per fee, or exactly ten times what a mesne lord
could have exacted. (See Pipe Roll, 24 Henry II., cited by Madox,
_ibid._) There is further evidence to the same effect: where a barony
had escheated to the crown, reliefs of the former under-tenants would
in future be payable directly to the crown; but it was the practice of
Henry II. (confirmed by c. 43 of Magna Carta, _q. v._) to charge, in
such cases, only the lower rates exigible prior to the escheat. A
similar rule applied to under-tenants of baronies in wardship; see the
case of the knights of the see of Lincoln in the hands of a royal
warden in Pipe Roll, 14 Henry II. (cited by Madox, _ibid._). It would
thus appear that all holders of crown fiefs (not merely _barones
majores_) were in Glanvill’s day still liable to arbitrary extortions
in name of reliefs. The editors of the _Dialogus_ (p. 223) are also of
this opinion. Pollock and Maitland (I. 289), however, maintain the
opposite view—namely, that the limitation to 100s. per knight’s fee
was binding on the crown as well as on mesne lords.
Every year, however, made for definition; and custom pointed with
increasing authority towards 100s. per knight’s fee, and £100 for a
barony. Two entries on the Pipe Roll of 10 Richard I. amusingly
illustrate the unsettled practice. A sum of £100 is described as a
“reasonable relief” for a barony, and immediately this entry is
stultified by a second entry of a considerable additional payment by way
of “fine” to induce the king to accept the sum his own roll had just
declared “reasonable.”[355] John was more openly regardless of reason.
The Pipe Roll of 1202 shows how an unfortunate heir failed to get his
heritage until he paid 300 marks, with the promise of an annual
“acceptable present” to the king.[356]
-----
Footnote 355:
Madox, I. 316.
Footnote 356:
Madox, I. 317.
-----
If John could ask so much, what prevented him asking more? He might name
a prohibitive price, and so defeat the hereditability of fiefs
altogether. Such arbitrary exactions must end, so the barons were
determined in 1215; custom must be defined, so as to prevail henceforth
against royal discretion. The first demand of the Articles of the Barons
is, “that heirs of full age shall have their heritage by the ancient
relief to be set forth in the Charter.” Here it is, then, duly set forth
and defined in chapter 2 of Magna Carta as £100 for an "earl’s barony,"
£100 for "a baron’s barony," 100s. for a knight’s fee, and a
proportional part of 100s. for every fraction of a knight’s fee. This
clause produced the desired effect. These rates were strictly observed
by the exchequer of Henry III., as we know from the Pipe Rolls of his
reign. Thus, when a certain William Pantoll was charged with £100 for
his relief on the mistaken supposition that he held a “barony,” he
protested that he held only five knight’s fees, and got off with the
payment of £25.[357] The relief of a barony was subsequently reduced
from £100 to 100 marks. The date of this change, if we may rely on
Madox,[358] lies between the twenty-first and thirty-fifth years of
Edward I.[359]
-----
Footnote 357:
_Ibid._, I. 318.
Footnote 358:
_Ibid._, I. 321.
Footnote 359:
The first of the long series of charters and confirmations which
contains it seems to be the _Inspeximus_ of 10th October, 1297, which
in all probability merely recognized officially a rule long demanded
as simple justice by the barons and public opinion. (See Madox, I.
318, Pollock and Maitland, I. 289, and Bémont, _Chartes_, p. 47.)
-----
Apparently all who paid reliefs to the king were mulcted in a further
payment (calculated at 9 per cent. of the relief) in name of "Queen’s
Gold," a contribution to the private purse of the Queen Consort, and
collected by an official specially representing her at the
exchequer.[360]
-----
Footnote 360:
See note by editors of _Dialogus_, p. 238. The Petition of the Barons
in 1258 (_Sel. Charters_, 382) protested against this, and the
practice was discontinued.
The Charter deals only with tenure by knight’s service; nothing is said
of other tenures. The explanation of the omission may possibly be
different in the cases of socage and of serjeanty respectively.[361]
(_a_) _Socage._ The barons were not so vitally interested in socage,
that being, in the normal case, the tenure of humbler men.[362] In later
reigns the king, like an ordinary mesne lord, contented himself with one
year’s rent of socage lands in name of relief. (_b_) _Serjeanty._ The
barons cannot have been indifferent to the fate of serjeanties, since
many of them held great estates by such tenures. Possibly they assumed
that the rules applied to knights’ fees and baronies would apply to
serjeanties as well. The Crown, however, acted on a different view;
large sums were frequently extorted by Henry III. By the reign of Edward
I., however, the practice of the exchequer was to limit itself to one
year’s rent (a sufficiently severe exaction)[363] for serjeanties, which
thus fell into line with socage.[364]
-----
Footnote 361:
Cf. _supra_, pp. 66-9.
Footnote 362:
It is possible to argue that the custom as to socage was already too
well settled to require any confirmation. Glanvill (IX. c. 4) stated
the relief for socage at one year’s annual value. It is not absolutely
clear, however, whether this restriction applied to the crown.
Further, no custom, however well established, was sufficiently safe
against John’s greed, to make confirmation unnecessary.
Footnote 363:
See Littleton, _Tenures_, II. viii., s. 154, and Madox, I. 321, who
cites the case of a certain Henry, son of William le Moigne, who was
fined in £18 for the relief of lands worth £18 a year held "by the
serjeanty of the King’s Lardinary."
Footnote 364:
Cf. _supra_, p. 69.
-----
II. _Units of Assessment._ Some explanation is required of the three
groups into which crown estates were thus divided—knight’s fees, barons’
baronies, and earls’ baronies.
(1) _Feodum militis integrum._ The origin of the knight’s fee is
obscured by a network of conflicting theories. A thread of connection is
sometimes traced between it and the mysterious five-hide unit of
Anglo-Saxon times; other authorities would ascribe its introduction into
England to a definite act of some great personage—either William the
Conqueror, according to Selden, who founds on a well-known but
untrustworthy passage in Ordericus Vitalis, or Ranulf Flambard,
according to Freeman, Stubbs, and Gneist. It seems probable that the
Normans, here as elsewhere, pursued their policy of avoiding an open
rupture with the past, and that the Conqueror adapted as far as possible
the existing system of land tenure to his own needs. There is little
doubt, in light of the evidence accumulated by Mr. Round in his _Feudal
England_, that William I. stipulated verbally for the service of a
definite number of knights from every fief bestowed by him on his Norman
followers. A knight’s fee or _scutum_ thus became a measure of military
service, and of feudal assessment; _servitium unius militis_ was a
well-known legal unit. But a difficult problem arises when it is asked
what definite equation, if any, existed between land and service. Three
answers have been given: (_a_) A definite ratio exists between amount of
service and extent of ground. In other words, the knight’s fee contains
a fixed area of land; every five hides sent one warrior, thus preserving
the old Anglo-Saxon unit.[365] (_b_) The ratio lies not between service
and extent, but between service and value. An estate of £20 annual
rental sends one knight to the king’s wars; the normal knight’s fee
contains 20 librates of land.[366] (_c_) Other authorities deny that any
proportion exists at all: William the Conqueror exacted from each of his
grantees precisely as much or as little knight’s service as he saw fit.
-----
Footnote 365:
C. Pearson, _Hist. of Engl._, I. 375, note 2.
Footnote 366:
J. H. Round, _Feudal England_, 295.
-----
Is it not possible to reconcile these divergent conclusions? Undoubtedly
the Conqueror held himself bound by no fixed rules, but made exceptions
where he pleased: some favoured foundations were exempt from all service
whatsoever.[367] Yet, if he distributed estates at his own free will, he
did not necessarily distribute them irrationally or at random. He
demanded service of knights in round numbers, 5 or 10 or 20, as he saw
cause, and in normal cases he was guided by some loose sense of
proportion. Where there was no reason either for preferential treatment
or for special severity, service would be roughly proportionate either
to the area or to the value. This rule was William’s servant, not his
master, and was made to yield to many exceptions, which would amply
account for the existence in later days of knight’s fees varying from 2
hides to 14 hides, instead of the normal 5.[368] Each such fee, whatever
its acreage or its rental, owed the service of one knight, and paid
relief at 100s.
-----
Footnote 367:
_E.g._ Gloucester and Battle Abbeys: see Round, _ibid._, 299.
Footnote 368:
See Round, _Feudal England_, 294, and Pollock and Maitland, I. 235.
-----
(2) _Baronia integra._ The word “barony” cannot be easily defined, on
account of the many changes it has undergone.[369] A “barony” at the
Norman Conquest differed in almost every respect from a “barony” at the
present day. The word _baro_ was originally synonymous with _homo_,
meaning, in feudal usage, a vassal of any lord. It soon became usual,
however, to confine the word to king’s men; “_barones_” were thus
identical with "crown tenants"—a considerable body at first; but a new
distinction soon arose between the great men and the smaller men among
their number (between _barones majores_ and _barones minores_). The
latter were usually called knights (_milites_), while “baron” was
reserved for the holder of an “honour.”[370] For determining what
constituted an “honour,” however, it was impossible to lay down any
absolute criterion. Mere size was not sufficient: a magnate once classed
as a full “baron” might successfully claim to be only a “knight,” thus
lightening some of his feudal burdens, for example this one of
“reliefs.” Chapter 14 of Magna Carta helped to stereotype the division,
since it stipulated that each _major baro_ should receive an individual
writ of summons to the Council, leaving the _barones minores_ to be
convened collectively through the sheriff. As the one point of
certainty, where everything else was vague, these writs came to possess
an exaggerated importance, and it was finally held (at a date long
subsequent to Magna Carta) that the mere receipt of a special summons,
if acted upon, made the recipient a baron, and entitled his heirs, in
all time coming, to succeed him in what was fast hardening into a
recognized title of dignity. The “barons” in 1215 knew nothing of all
this; they desired merely to have the reliefs due by them taxed at a
fixed rate. Each “barony” should pay £100, a sum afterwards reduced to
100 marks.
-----
Footnote 369:
See Pollock and Maitland, I. 262, and authorities there cited. “An
honour or barony is thus regarded as a mass of lands which from of old
have been held by a single title.” An exact definition is, perhaps,
impossible: the term was first applied in early days without any
technical meaning; in later days each “honour” had separately
established its position by prescriptive usage. See also Pike, _House
of Lords_, pp. 88-9, on the difficulty of defining “an entire barony.”
Footnote 370:
This change was not complete in 1215, but Magna Carta, when it uses
“_barones_” alone, seems to refer to “_barones majores_” only (see cc.
2, 21, 61). In c. 14, “_barones majores_” are contrasted with
“_barones minores_.”
-----
Relief was thereafter a fixed sum, while the size of the barony varied
in each case. As the same holds true of the knight’s fee, it is doubly
ridiculous to attempt to discover an equation between the knight’s fee
and the barony founded upon the ratio of the sums payable. Coke,
however, was guilty of this absurdity.[371]
-----
Footnote 371:
See Coke on _Littleton_, II. iv. s. 112, and _ibid._ _Second
Institute_, p. 7. Founding on the later practice of the exchequer,
which exacted one hundred marks of relief from a barony, and one
hundred shillings from a knight’s fee, he assumed the false equation
"1 barony = 13⅓ knight’s fees." If he had known of the earlier
practice, which followed the rule of John’s Charter, he might have
jumped to another equation, equally false, namely that "1 barony = 20
knight’s fees." There is, in reality, no fixed proportion between the
two, either as to extent or value.
-----
(3) _Baronia comitis integra._ A peculiar phrase is used in the text, an
"earl’s barony" appearing where “earldom” might be expected.[372] The
reason is that “earldom” originally implied the holding of an office and
not the ownership of land, whereas relief was payable for the earl’s
lands or “honour,” not for his office. The Charter, therefore, uses
words well fitted to make its meaning clear. The earl (or _comes_) was
the successor of the ealdorman as local governor of a county or group of
counties. His title was official, not tenurial, or even, in early times,
necessarily hereditary.
-----
Footnote 372:
In the _Inspeximus_ of Edward I., however, the word _comitatus_
(earldom) displaces the _baronia comitis_ of the text. See _Statutes
of Realm_, I. 114.
-----
Some of the ideas most intimately connected with a modern earldom were
signally inappropriate to the Norman earls. At the present day an
earldom is one of several “steps in the peerage,” a conception that did
not then exist. At the present day it carries with it a seat in the
House of Lords, whereas no instance is recorded until long after the
Norman Conquest of any earl or other great man demanding as a right to
be present in the king’s council: the custom of summoning all crown
tenants became stereotyped only in the reign of Henry II. and was not
formally recognized previous to chapter 14 of Magna Carta. At the
present day, again, the hereditary principle is the chief feature of an
earldom, whereas William did not admit that the office necessarily
passed from father to son.[373]
-----
Footnote 373:
See Pike, _House of Lords_, 57.
-----
The policy of the Conqueror had been to bring each county as far as
possible under his own direct authority; many districts had no earls,
while in others the connection of an earl with his titular shire was
reduced to a shadow, the only points of connection being the right to
enjoy “the third penny” (that is, the third part _pro indiviso_ of the
profits of justice administered in the county court) and the right to
bear its name. It is true that in addition the earl usually held
valuable estates in the shire, but he did this only as any other
landowner might. For purposes of taxation the whole of his lands,
whether in his own county or elsewhere, were reckoned as one unit, here
described as _baronia comitis integra_, the relief on which was taxed at
one hundred pounds.
Very gradually in after ages, the conception of an earldom suffered
change. The official character gave way before the idea of tenure, and
later on the modern conception was formulated of a hereditary dignity
conferring specific rank and privileges. The period of transition when
the tenurial idea prevailed is illustrated by the successful attempt of
Ranulf, earl of Chester and Lincoln, in the reign of Henry III. to
aliene one of his two earldoms—described by him as the _comitatus_ of
Lincoln.[374] Earls are now, like barons, created by letters patent, and
need not be land-owners. Thus the words “barony” and “earldom,” so
diverse in their origin and early development, were closely united in
their later history.
-----
Footnote 374:
See Pike, _House of Lords_, 63. This term _comitatus_ was a word of
many meanings. Originally designating the “county” or “the county
court,” it came to mean also the office of the earl who ruled the
county, and later on it might indicate, according to context, either
his titular connection with the shire, his estates, his share of the
profits of justice, or his rank in the peerage.
-----
III. _Liability of Church Property to “Relief.”_ The Great Charter of
John, unlike the Charter of Henry I. makes no mention of the lands of
vacant sees in this connection, probably because the main question had
long been settled in favour of the church. The position of a bishopric
was, however, a peculiar one. Each prelate was a crown tenant, and his
fief was reckoned a “barony,” entitling its owner to all the privileges,
and saddling him with all the feudal obligations of a baron.[375]
-----
Footnote 375:
This was specially affirmed in 1164 by article 11 of the Constitutions
of Clarendon, which stipulated that each prelate should hold his lands
_sicut baroniam_, merely a restatement of existing law.
-----
It was not then unnatural that, when a prelate died, the Crown should
demand “relief” from his successor, in the same way as from the heir of
a dead lay baron. Such demands, when made by William Rufus and his
minister Flambard, met with bitter opposition. The Crown in consequence,
unwilling to forego any of its feudal dues, endeavoured to shift their
incidence from the revenues of the see to the shoulders of the feudal
under-tenants. After bishop Wulfstan’s death on 18th January, 1095, a
writ was issued in William’s name to the freeholders of the see of
Worcester, calling on each of them to pay, as a relief due on their
bishop’s death, a specified sum, assessed by the barons of the
exchequer.[376]
-----
Footnote 376:
_Sicut per barones meos disposui._ The writ is given in Heming’s
_Cartulary_, I. 79-80, and reprinted by Round, _Feudal England_, 309.
-----
In revenge for such extortions from church lands and tenants, the
historians of the day, all necessarily recruited from the clerical
class, have heartily recommended Rufus and Flambard to the opprobrium of
posterity. Anselm compelled Henry I. to promise amendment in his
coronation Charter, which undertook to exact nothing during vacancies
either from the demesne of the church or from its tenants.[377] No
corresponding promise was demanded from John, a proof that such
exactions had ceased. The Crown no longer extorted relief from church
lands, although wardship was, without protest, enforced during
vacancies.
-----
Footnote 377:
See Appendix.
-----
CHAPTER THREE.
Si autem heres alicujus talium fuerit infra etatem et fuerit in
custodia, cum ad etatem pervenerit, habeat hereditatem suam sine relevio
et sine fine.
If, however, the heir of any one of the aforesaid has been under age
and in wardship, let him have his inheritance without relief and
without fine when he comes of age.
The Crown is here forbidden to exact relief where it had already enjoyed
wardship. It was hard on the youth, escaping from leading-strings, to be
met, when he “sued out his livery,” with the demand for a large relief
by the exchequer which had already appropriated all his available
revenue. The same event, namely, the ancestor’s death, was thus made the
excuse for two distinct feudal incidents.[378]
-----
Footnote 378:
Where there had already been a wardship, the relief was thus the price
paid by the heir in order to escape from the heavy hand of the king,
and was therefore known as “_ousterlemain_.” Mr. Taswell-Langmead
(_Engl. Const. Hist._, p. 51, n.) states the amount at half a year’s
profits. He cites no authorities for this, and is probably in error.
The _Dialogus_, II. x. E., p. 135, forbids relief to be taken, when
wardship had been exercised _per aliquot annos_.
-----
Such double extortion had long been forbidden to mesne lords; Magna
Carta was merely extending similar limitations to the king. The
grievance complained of had been intensified by an unfair expedient
which John sometimes adopted. In cases of disputed succession he
favoured the claims of a minor, enjoyed the wardship, and thereafter
repudiated his title altogether, or confirmed it only in return for an
exorbitant fine. The only safeguard was to provide that the king should
not enjoy wardship until he had allowed the heir to perform homage,
which constituted the binding tie of lord and vassal between them,
prevented the king from challenging the vassal’s right, and bound him to
“warrant” the title against all rival claimants. This expedient was
actually adopted in the revised Charter of 1216.[379]
-----
Footnote 379:
See chapter 3 of 1216, which stipulates that no lord shall have
wardship of an heir “_antequam homagium ejus ceperit_.” Cf. Coke,
_Second Institute_, p. 10.
-----
The alterations in that reissue were not altogether in the vassal’s
favour. Another addition made a reasonable stipulation in favour of the
lord, which incidentally illustrates the theory underlying wardship. The
essence of tenure in chivalry was the grant of land in return for
military services. Only a knight was capable of bearing arms; hence it
was that the lord held the lands in ward until the minor should reach
man’s estate. Ingenious attempts had apparently been made to defeat
these legitimate rights of feudal lords by making the infant heir a
“knight,” thus cutting away the basis on which wardship rested. The
reissue of 1216 prevented this, providing that the lands of a minor
should remain in wardship, although he was made a knight.[380]
Incidentally, the same Charter of Henry declared twenty-one years to be
the period at which a military tenant came of age, a point on which
John’s Charter had been silent.
-----
Footnote 380:
Coke, _ibid._, p. 12, makes a subtle, and apparently unwarranted,
distinction to depend on whether the minor was made a knight before or
after his ancestor’s death. The proviso, he argues, does not apply to
the former case, because the word used is “_remaneat_,” and lands
cannot “remain” in wardship if they were not in it before. Such
reasoning is puerile.
-----
In one case, exceptionally, wardship and relief might both be exacted on
account of the same death, though not by the same lord. Where the dead
man had formerly held two estates, one of the Crown and one of a mesne
lord, the Crown might claim the wardship of both, and then the
disappointed mesne lord was allowed to exact relief as a solatium for
his loss.[381]
-----
Footnote 381:
See _Coke on Littleton_, Book II. c. iv. s. 112; and cf. _infra_, cc.
37 and 43 for the “prerogative wardship” of the Crown.
-----
CHAPTER FOUR.
Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de
terra heredis nisi racionabiles exitus, et racionabiles consuetudines,
et racionabilia servicia, et hoc sine destructione et vasto hominum vel
rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti
vel alicui alii qui de exitibus illius nobis respondere debeat, et ille
destructionem de custodia fecerit vel vastum, nos ab illo capiemus
emendam, et terra committatur duobus legalibus et discretis hominibus de
feodo illo, qui de exitibus respondeant nobis vel ei cui eos
assignaverimus; et si dederimus vel vendiderimus alicui custodiam
alicujus talis terre, et ille destructionem inde fecerit vel vastum,
amittat ipsam custodiam, et tradatur duobus legalibus et discretis
hominibus de feodo illo qui similiter nobis respondeant sicut predictum
est.
The guardian of the land of an heir who is thus under age, shall take
from the land of the heir nothing but reasonable produce, reasonable
customs, and reasonable services, and that without destruction or
waste of men or goods; and if we have committed the wardship of the
lands of any such minor to the sheriff, or to any other who is
responsible to us for its issues, and he has made destruction or waste
of what he holds in wardship, we will take of him amends, and the land
shall be committed to two lawful and discreet men of that fee, who
shall be responsible to us for the issues, or to him to whom we shall
assign them; and if we have given or sold the wardship of any such
land to someone and he has therein made destruction or waste, he shall
lose that wardship, and it shall be transferred to two lawful and
discreet men of that fief, who shall be responsible to us in like
manner as aforesaid.
This chapter and the next treat of wardship,[382] a much hated feudal
incident, which undoubtedly afforded openings for grave abuses. It is a
mistake, however, to regard its mere existence as an abuse: it seems to
have been perfectly legal in England from the date of the Norman
Conquest, although some writers[383] consider it an innovation devised
by William Rufus and Flambard, without precedent in the Conqueror’s
reign. The chief argument for this mistaken view is that Henry I., in
promising redress of several admitted inventions of Rufus, promised also
to reform wardship. This may show that wardship was abused, but does not
prove it an innovation.
-----
Footnote 382:
The nature of wardship is more fully explained _supra_, pp. 75-7.
Footnote 383:
_E.g._ Mr. Taswell-Langmead, _Engl. Const. History_, p. 51, n.
-----
The Charter of Henry committed him undoubtedly to drastic remedies,
which would have amounted to the virtual abolition of wardship
altogether. Chapter 4 of that document removed from the lord’s custody
both the land and the person of the heir, and gave them to the widow of
the deceased tenant (or to one of the kinsmen, if such kinsman had, by
ancient custom, rights prior to those of the widow).[384] This was only
one of the many insincere promises which the “lion of justice” never
kept, and probably never meant to keep. Wardship continued to be exacted
from lay fiefs throughout the reigns of Henry I. and Stephen. Article 4
of the Assize of Northampton (1176) merely confirmed the existing
practice when it allowed wardship to the lord of the fee.[385] The
barons in 1215 made no attempt to alter this, or to revert to the
drastic remedies of the Charter of Henry I., although the evils
complained of had become worse under John’s misgovernment.
-----
Footnote 384:
“This, it would seem, was the old English rule”; see Ramsay,
_Foundations of England_, II. 230.
-----
It must be remembered that “wardship” placed the property and person of
the heir at the mercy of the Crown. Even if the popular belief as to the
fate met by Prince Arthur at his uncle’s hands was unfounded, John was
by no means the guardian to inspire confidence in the widowed mother of
a young Crown tenant whose estates the king might covet for himself.
Further, the king might confer the office, with the delicate issues
involved, upon whomsoever he would. When such a trust was abused it was
difficult to obtain redress. In 1133 a guardian, accused _de puella quam
dicitur violasse in custodia sua_, paid a fine to the crown, if not as
hush money, at least in order to obtain protection from being sued
elsewhere than in the _Curia Regis_.[386] It is easy to understand how
thoroughly this feudal incident must have been detested in England and
Normandy, all the more so if, as Hallam contends, it was not recognized
as a feudal due in other parts of Europe.[387]
-----
Footnote 385:
It is a common error to suppose that this Assize restores wardship to
the lord.
Footnote 386:
See _Pipe Roll_, 29 Henry II., cited Madox, I. 483.
Footnote 387:
Cf. _supra_, p. 78.
Guardians were of two kinds. The king might entrust the lands to the
sheriff of the county where they lay (or to one of his bailiffs), such
sheriff drawing the revenues on the Crown’s behalf, and accounting in
due season at the exchequer. Alternatively, the king might make an
out-and-out grant of the office, together with all profit to be derived
from it, to a private individual, either some royal favourite or the
bidder of the highest price. Commentators of a later date[388] apply the
word “committee” to the former type of guardian, reserving “grantee” for
the latter. This distinction, which is mentioned by Glanvill,[389]
obtains recognition in this passage of the Charter. Neither was likely
to have the interests of the minor at heart. Both would extort the
maximum of revenue, the one for the king, the other for himself. They
had always strong inducements to exhaust the soil, stock, and timber,
uprooting and cutting down whatever would fetch a price, and replacing
nothing. The heir found too often a wilderness of impoverished lands and
empty barns.
-----
Footnote 388:
_E.g._ Coke, _Second Institute_, p. 13.
Footnote 389:
VII. c. 10.
-----
The remedies proposed by Magna Carta were too timid and half-hearted;
yet something was effected. It was unnecessary to repeat the recognized
rule that the minor must receive, out of the revenues of the land,
maintenance and education suited to his station; but the Crown was
restrained by chapter 3 from exacting relief where wardship had already
been enjoyed; chapter 37 forbade John to exact wardship in certain cases
where it was not legally due; while here in chapter 4 an attempt was
made to protect the estate from waste.
The promised reforms included a definition of “waste”; punishment of the
wasteful guardian; and protection against repetition of the abuse. Each
of these calls for comment. (1) _The definition of waste._ The Charter
uses the words “_vastum hominum vel rerum_” (a phrase which occurs also
in Bracton).[390] It is easy to understand waste of goods; but what is
"waste of men"? An answer may be found in the words of the so-called
“unknown Charter of Liberties,”[391] which binds guardians to hand over
the land to the heir “_sine venditione nemorum et sine redemptione
hominum_.” Clearly, to enfranchise villeins was one method of “wasting
men.” The young heir, when he came to the enjoyment of his estates, must
not find his praedial serfs emancipated.[392] The words of the “unknown
Charter” may be used to illustrate the text, even if it be a forgery,
since a consensus of opinion holds it to be either contemporary or of
slightly later date.[393]
-----
Footnote 390:
II. folio 87.
Footnote 391:
See Appendix.
Footnote 392:
Another way of “wasting” villeins was by tallaging them excessively.
(For meaning of tallage cf. _infra_ c. 12.) Thus Bracton’s _Note Book_
reveals how one guardian _destruxit villanos per tallagia_ (_v._ case
485); how another exiled or destroyed villeins to the value of 300
marks (case 574); how a third destroyed two rich villeins so that they
became poor and beggars and exiles (case 632). Cf. also case 691.
Daines Barrington, writing towards the middle of the eighteenth
century, went too far when he inferred from this passage “that the
villeins who held by servile tenure were considered as so many negroes
on a sugar plantation” (_Observations_, p. 7.). For a definition of
“villein” see _infra_ c. 20.
Footnote 393:
Cf. _supra_, pp. 202-5.
-----
(2) _The punishment of wasteful guardians._ The Charter provides a
distinct but appropriate form of punishment for each of the two types of
guardian. John promises to take “amends,” doubtless of the nature of a
fine, from the “committee” who had no personal interest in the property;
while the “grantee” is to forfeit the guardianship, thus losing a
valuable asset for which he had probably paid a high price, sufficient
punishment, perhaps, without the exaction of damages.
Subsequent statutes did not, however, take so lenient a view. While the
Statute of Westminster[394] merely repeated the words of Magna Carta,
the Statute of Gloucester[395] enacted that the grantee who had
committed waste should not only lose the custody, but should, in
addition, pay to the heir any balance between the value of the wardship
thus forfeited and the total damage. More severe penalties were found
necessary. Statute 36 Edward III. chapter 13 enacted that the king’s
Escheators (officers who first became prominent towards the close of the
reign of Henry III., and who acted in the normal case as guardians of
Crown wards), when guilty of waste, should “yield to the heir treble
damages.” If the boy was still a minor, his friends might bring a suit
on his behalf; or after he was of full age he might bring it on his own
account.[396]
-----
Footnote 394:
3 Edward I. c. 21.
Footnote 395:
6 Edward I. c. 5.
Footnote 396:
Coke, _Second Institute_, p. 13, enunciates a doctrine at variance
with this statute, holding that the heir who suffered damage could
not, on coming of age, obtain such triple damages, or indeed any
damages at all, if the king had previously taken amends himself. Coke
further maintains that even after waste had been committed, the person
of the heir was left in the power of the unjust guardian, explaining
that when the Charter took away the office “this is understood of the
land, and not of the body.” There seems, however, to be no authority
for such statements.
-----
(3) _Provision against a recurrence of the waste._ It was only fair that
reasonable precautions should be taken to prevent the heir who had
already suffered hurt, from being similarly abused a second time. John,
accordingly, promised to supersede the keeper guilty of waste by
appointing as guardians two of the most trustworthy of the free-holders
on the heir’s estate. These men, from their local and personal ties to
the young heir, might be expected to deal tenderly with his property.
The “unknown Charter,” already referred to, proposed a more drastic
remedy. Whenever the Crown’s right to a wardship opened, the lands were
to be entrusted to four knights of the fief without waiting until damage
had been done. This suggestion, if carried out, would have protected the
king’s wards, without injury to the legitimate pecuniary interests of
the Crown.
CHAPTER FIVE.
Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos,
vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de
exitibus terre ejusdem; et reddat heredi, cum ad plenam etatem
pervenerit, terram suam totam instauratam de carrucis et waynagiis,
secundum quod tempus waynagii exiget et exitus terre racionabiliter
poterunt sustinere.
The guardian, moreover, so long as he has the wardship of the land,
shall keep up the houses, parks, places for live-stock,[397]
fishponds, mills, and other things pertaining to the land, out of the
issues of the same land; and he shall restore to the heir, when he has
come to full age, all his land, stocked with ploughs and implements of
husbandry, according as the season of husbandry shall require, and the
issues of the land can reasonably bear.
-----
Footnote 397:
_Vivarium_ in strictness means a place for keeping live-stock, but
probably included the animals also. By Coke, in the _Statutes at
large_, and elsewhere, it is translated “warren”; but that word has
its Latin form in _warrena_. Stubbs’ Glossary to _Select Charters_ (p.
551) renders it as “a fish pond,” but _stagnum_ has that meaning. The
Statute Westminster II. (c. 47) speaks of _stagnum molendinæ_ (a
mill-pond). The Statute of Merton (c. 11) refers to poachers taken _in
parcis et vivariis_; while Westminster I. (c. 1) forbids _ne courge en
autri parks, ne pesche en autri vivers_, which suggests a change of
connotation. Cf. _ibid._, c. 20.
-----
These stipulations form the complement, on the positive side, of the
purely negative provisions of chapter 4. It was not sufficient to
prohibit acts of waste; the guardian must see that the estates were kept
in good repair.
I. _The Obligations of the Warden of a Lay-fief._ It was the duty of
every custodian to preserve the lands from neglect, together with all
houses, “parks” (a term explained under chapter 47), fishponds, mills,
and the other usual items of the equipment of a medieval manor. All
outlays required for these purposes formed, in modern language, a first
charge on the revenues of the estate, to be deducted before the balance
was appropriated by the “grantee,” or paid to the exchequer by the
“committee.” It was the guardian’s duty, moreover, to restore the whole
to the heir in as good condition as the produce of the land might
reasonably permit. Henry’s Charters directed that the guardian should
redeliver the land stocked with ploughs “and with all other appointments
in at least as good condition as he received it.”[398]
-----
Footnote 398:
Blackstone, _Great Charter_, lxxviii. considers this “an indulgence to
guardians, by only directing them to deliver up the land ... in as
good condition as they found it, not in as good as it would bear.”
Sometimes, the heir after coming of age, could not recover his lands
at all. The Statute of Marlborough (c. 16) gave such a ward a right to
a _mort d’ancestor_ (cf. _infra_, p. 325) against a mesne lord, but
apparently not against the Crown. The Statute of Westminster I. (c.
48) narrates that heirs were often carried off bodily to prevent them
raising actions against their guardians.
-----
Magna Carta did not attempt to abolish wardship, which continued in full
force for many centuries, with only a few of its worst abuses somewhat
curtailed. The whole subject was regulated in 1549 by the Statute 32
Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the
expensive and dilatory procedure of which caused increasing discontent,
until an order of both Houses of Parliament, dated 24th February, 1646,
abolished it along with “all wardships, liveries, _primer seisins_, and
_ouster les mains_.”[399] This ordinance was confirmed at the
Restoration by the Statute 12 Charles II. c. 24.
-----
Footnote 399:
See S. R. Gardiner, _Documents_, p. 207.
-----
II. _Wardships over Vacant Sees._ The church had its own grievances,
although these took a different form. The Constitutions of
Clarendon[400] had stipulated that each great prelate should hold his
Crown lands _sicut baroniam_; and this view ultimately prevailed. It
followed that all appropriate feudal burdens affected church fiefs
equally with lay fiefs. The lands which formed the temporalities of a
see were, however, in a peculiar position, being the property, not of an
individual, but of an undying corporation (to use the definite language
of a later age). When one bishop or abbot died, a successor of suitable
age and worth had at once to be appointed. A minority was thus
impossible, and therefore, so it might be argued, wardships could never
arise. Rufus objected to what he thought an unfair exemption from a
recognized feudal incident. Flambard devised an ingenious substitute for
ordinary wardships by keeping sees long vacant, and meantime taking the
lands under the guardianship of the Crown. Such practices formed the
original ground of quarrel between Anselm and Rufus. Henry I., while
renouncing by his Charter all pretensions to exact reliefs, retained his
right of wardship, promising merely that vacant sees should neither be
sold nor farmed out. Stephen went further, renouncing expressly all
wardships over church lands; but Henry II. ignored this concession, and
reverted to the practice of his grandfather. In his reign the wardship
of the rich properties of vacant sees formed a valuable asset of the
exchequer. During a vacancy the Crown drew not only the rents and issues
of the soil, but also the various feudal payments which the
under-tenants would otherwise have paid to the bishop. The Pipe Roll of
14 Henry II.[401] records sums of £30 and £20 paid into the exchequer by
two tenants of the vacant see of Lincoln for six and four knight’s fees
respectively.[402]
-----
Footnote 400:
Article 11: see _Select Charters_, 139.
Footnote 401:
Cited by the editors of the _Dialogus_, p. 223.
Footnote 402:
Cf. under c. 43 _infra_.
-----
The practice of Henry of Anjou was followed by his sons. John was
careful specially to reserve wardships over vacant sees even in that
very accommodating charter, dated 21st November, 1214, which surrendered
the right of canonical election to the national church. Stephen Langton
had either failed to force John to relinquish wardships or else
considered such a concession unnecessary now that the king renounced his
right to veto church appointments, since wardships over church lands
would become unprofitable if elections were never unduly delayed.
Whatever the reason, the charter of 1214 did nothing to guard against
the abuse of wardships over church lands, and John’s Great Charter was
equally silent.[403] The omission was supplied in 1216, when it was
directed that the provisions already made applicable to lay fiefs should
extend also to vacant sees, with the added proviso that church wardships
should never be sold. The charter of Henry III. thus reverted to the
exact position defined by the charter of Henry I. The lands of vacant
sees might be placed under a “committee,” but never given to a
“grantee,” to use Coke’s terms.
-----
Footnote 403:
C. 46 (see _infra_) confirmed _barons_, who had founded abbeys, in
their rights of wardship over them during vacancies.
-----
These provisions were further supplemented by later acts. An Act of 14
Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a
vacant see a right to the pre-emption of the wardship at a fair price.
If they failed to exercise this, the king’s right to appoint escheators
or other keepers was confirmed, but under strict rules as to waste. This
is a distinct confirmation of the king’s right to “commit” church lands,
although the prohibitions against selling them or farming them out
remained still in force.
CHAPTER SIX.
Heredes maritentur absque disparagacione, ita tamen quod, antequam
contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius
heredis.
Heirs shall be married without disparagement, yet so that before the
marriage takes place the nearest in blood to that heir shall have
notice.
The Crown’s right to regulate the marriages of wards had become an
intolerable grievance. The origin of this feudal incident and its
extension to male as well as female minors have been elsewhere
explained.[404] John made a regular traffic in the sale of wards—young
maids of fourteen and aged widows alike. No excuse would be accepted.
The Pipe Roll of John’s first year[405] records how the chattels of a
certain Alice Bertram were taken from her and sold because she refused
“to come to marry herself” at the summons of the king. Only two
expedients were open to those who objected to mate for life with the men
to whom John sold them. They might take the veil, become dead in law,
and forfeit their fiefs to escape the burdens inherent in them. Only the
cloister could afford them shelter; nowhere in the outer world were they
safe. The other way of escape was to outbid objectionable suitors. This
was not always possible, for John was predisposed to favour the suit of
his foreign gentlemen of fortune, thus befriending his creatures while
adding to the slender number of personally loyal tenants-_in-capite_.
John’s greed was insatiable, and brief entries in his Exchequer Rolls
condense the story of many a tragedy. In the first year of his reign the
widow of Ralph of Cornhill offered 200 marks, with three palfreys and
two hawks, that she might not be espoused by Godfrey of Louvain, but
remain free to marry whom she chose, and yet keep her lands. This was a
case of desperate urgency, since Godfrey, for love of the lady or of her
lands, had offered 400 marks for her, if she could show no reason to the
contrary. It is satisfactory to learn that in this case the higher bribe
was refused, and the lady escaped.[406]
-----
Footnote 404:
See _supra_, 75–8.
Footnote 405:
Cited Madox, I. 565.
Footnote 406:
See _Rotuli de Oblatis et Finibus_, p. 37, and _Pipe Roll_, 2 John,
cited by Madox, I. 515.
-----
Sometimes John varied his practice by selling, not the woman herself,
but the _right_ to sell her. In 1203 Bartholomew de Muleton bought for
400 marks the wardship of the lands and heir of a certain Lambert, along
with the widow, to be married to whom he would, yet so that she should
not be disparaged.[407]
-----
Footnote 407:
_Pipe Roll_, 4 John, cited by Madox, I. 324.
Great stress was naturally placed on exemption from "disparagement"—that
is, from forced marriage with one who was not an equal. When William of
Scotland, by the treaty of 7th February, 1212, conferred on John the
right to marry Prince Alexander to whom he would, the qualification was
expressly stated, “but always without disparagement.”[408] Such a
proviso was understood where not expressed, and formed apparently the
only restriction admitted by the Crown upon this prerogative. It is not
surprising, then, to find it specially confirmed in Magna Carta.
The Articles of the Barons had, indeed, demanded a further
protection—namely, that a royal ward should only be married _with the
consent_ of the next of kin. In our text this is softened down to the
mere intimation of an intended marriage. The opportunity was thus
afforded of protesting against an unsuitable match. Insufficient as the
provision was, it was entirely omitted from the reissues of Henry’s
reign. The sale of heiresses went on unchecked.
-----
Footnote 408:
See _infra_, c. 59.
-----
Magna Carta made no attempt to define disparagement, but the Statute of
Merton[409] gave two examples,—marriage to a villein or to a burgess.
This was not an exhaustive list. Littleton, commenting on this
statute,[410] adds other illustrations:—“as if the heir that is in ward
be married to one who hath but one foot, or but one hand, or who is
deformed, decrepit, or having an horrible disease, or else great and
continual infirmity, and, if he be an heir male, married to a woman past
the age of child-bearing.” Plenty of room was left for forcing on a ward
an objectionable husband or wife, who yet could not be proved to come
within the law’s definition of “disparagement.” The barons argued in
1258 that an English heiress was disparaged if married to anyone not an
Englishman by birth.[411]
-----
Footnote 409:
20 Henry III. c. 6.
Footnote 410:
_Tenures_, II. iv. s. 109.
Footnote 411:
See Petition of Barons (_Sel. Charters_, 383). Gradually the
conception of disparagement was expanded, partly from the natural
development of legal principles and partly from the increased power
the nobility obtained of enforcing their own definitions upon the
king. Coke commenting on Littleton (Section 107) mentions four kinds
of disparagements: (1) _propter vitium animi_, _e.g._ lunatics and
others of unsound mind; (2) _propter vitium sanguinis_, villeins,
burgesses, sons of attainted persons, bastards, aliens, or children of
aliens; (3) _propter vitium corporis_, as those who had lost a limb or
were diseased or impotent; and (4) _propter jacturam privilegii_, or
such a marriage as would involve loss of “benefit of clergy.” The last
clause had no possible connection with the law as it stood in the
thirteenth century, but was founded on the fact that marriage with a
widow or widower was deemed by the Church in later days an act of
bigamy, and therefore involved loss of the benefit of clergy, until
this was remedied by the Statute 1 Edward VI. c. 12 (sect. 16).
Was it in the power of the far-seeing father of a prospective heiress by
marrying her during his own life-time to render nugatory the Crown’s
right to nominate a husband? Not entirely; for the Charter of Henry I.
(even when renouncing the more oppressive practice of Rufus) reserved
the king’s right to be consulted by the barons before they bestowed the
hand of female relations in marriage. Magna Carta is silent on the
point, and the presumption is that the existing law was to be
maintained.
Bracton[412] explains that law:—No woman with an inheritance could marry
without the chief lord’s consent, under pain of losing such inheritance;
yet the lord when asked was bound to grant consent, if he failed to show
good reasons to the contrary; he could not, however, be compelled to
accept homage from an enemy or other unsuitable tenant. The Crown’s
rights in such matters were apparently the same as those of any mesne
lord.[413]
-----
Footnote 412:
II. _folio_ 88.
Footnote 413:
For further information on the age at which marriage could be tendered
to a ward, and the penalties for refusing, see Thomson, _Magna
Charta_, pp. 170-1.
-----
CHAPTER SEVEN.
Vidua post mortem mariti sui statim et sine difficultate habeat
maritagium et hereditatem suam, nec aliquid det pro dote sua, vel pro
maritagio suo, vel hereditate sua quam hereditatem maritus suus et ipsa
tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per
quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua.
A widow, after the death of her husband, shall forthwith and without
difficulty have her marriage portion and inheritance; nor shall she
give anything for her dower, or for her marriage portion, or for the
inheritance which her husband and she held on the day of the death of
that husband; and she may remain in the house of her husband for forty
days after his death, within which time her dower shall be assigned to
her.