-----

Footnote 1009:

R. Wendover, IV. 66.

Footnote 1010:

_Annals of Dunstable_, III. 68.

Footnote 1011:

_Mem. Roll_, 28 Henry III., cited Madox, II. 201.

Footnote 1012:

_Mich. Communia_, 29 Henry III., cited Madox, II. 229.

Footnote 1013:

Some particulars respecting the other individuals named will be found

in Thomson, _Magna Charta_, 244–5. Philip Mark was Constable of

Nottingham under John (R. Wendover, III. 237), and Sheriff of

Nottingham both before and after 1215 (see _e.g._ _Rot. Claus._, I.

412), while Guy de Chancel in 1214 accounted for the scutage of the

honour of Gloucester (Madox, I. 639), and for the rent of the barony

of William of Beauchamp (_Ibid._, I. 717).

-----

CHAPTER FIFTY-ONE.

Et statim post pacis reformacionem amovebimus de regno omnes alienigenas

milites, balistarios, servientes, stipendiarios, qui venerint cum equis

et armis ad nocumentum regni.

As soon as peace is restored, we will banish from the kingdom all

foreign-born knights, cross-bowmen, serjeants, and mercenary soldiers,

who have come with horses and arms to the kingdom’s hurt.

John here binds himself to disband his foreign troops, who had acted as

the agents of his tyrannies, keeping the native English in subjection,

and ever ready to take the field in the event of rebellion. These men,

who had garrisoned the royal castles which formed such formidable

engines of oppression in the Middle Ages, are now to be banished “as

soon as peace is restored,” an indication that, even at the date of

Magna Carta, a state of virtual war was recognized. This promise was

partially fulfilled. On 23rd June writs were issued for the disbandment

of the mercenaries.[1014] The renewal of the civil war, however, was

followed by the enrolment of new bands of foreigners on both sides, and

these men long continued to exercise an evil influence in England. Their

presence was one of the main causes of the rebellion of 1224, after the

suppression of which most of them were again banished with their

ring-leader, Falkes de Bréauté, at their head.

-----

Footnote 1014:

See _Rot. Pat._, 17 John, m. 23 (_New Rymer_, I. 134).

-----

The words used to describe these soldiers are comprehensive.

_Stipendiarii_ embraced mercenaries of every kind: _balistarii_ were

cross-bowmen. This weapon, imported into England as a result of the

crusades, quickly superseded the earlier short bow, but had, in turn, to

succumb to the long bow, which was apparently derived from Wales, and

was developed as the regular weapon of one branch of the English army by

Edward I., who gained by means of it many battles against the Scotch and

Welsh, and made possible the later triumphs of the Black Prince and of

Henry V.

CHAPTER FIFTY-TWO.

Si quis fuerit disseisitus vel elongatus per nos sine legali judicio

parium suorum, de terris, castellis, libertatibus, vel jure suo, statim

ea ei restituemus; et si contencio super hoc orta fuerit, tunc inde fiat

per judicium viginti quinque baronum, de quibus fit mencio inferius in

securitate pacis: de omnibus autem illis de quibus aliquis disseisitus

fuerit vel elongatus sine legali judicio parium suorum, per Henricum

regem patrem nostrum vel per Ricardum regem fratrem nostrum, que in manu

nostra habemus, vel que alii tenent que nos oporteat warantizare,

respectum habebimus usque ad communem terminum crucesignatorum; exceptis

illis de quibus placitum motum fuit vel inquisicio facta per preceptum

nostrum, ante suscepcionem crucis nostre: cum autem redierimus de

peregrinacione nostra, vel si forte remanserimus a peregrinacione

nostra, statim inde plenam justiciam exhibebimus.

If any one has been dispossessed or removed[1015] by us, without the

legal judgment of his peers, from his lands, castles, franchises, or

from his right, we will immediately restore them to him; and if a

dispute arise over this, then let it be decided by the five-and-twenty

barons of whom mention is made below in the clause for securing the

peace.[1016] Moreover, for all those possessions, from which any one

has, without the lawful judgment of his peers, been disseised or

removed, by our father, King Henry, or by our brother, King Richard,

and which we retain in our hand (or which are possessed by others, to

whom we are bound to warrant them) we shall have respite until the

usual term of crusaders; excepting those things about which a plea has

been raised, or an inquest made by our order, before our taking of the

cross; but as soon as we return from our expedition (or if perchance

we desist from the expedition) we will immediately grant full justice

therein.

-----

Footnote 1015:

The _elongatus_ of the Charter replaces the _prolongatus_ of the

Articles of the Barons.

Footnote 1016:

That is, in the so-called “executive clause” the “_forma securitatis

ad observandum pacem_” of the Articles, which became chapter 61 of the

Charter (_q.v._).

-----

The Charter here reverts to a topic of vital interest to the barons, the

subject of illegal disseisins already raised in chapter 39, which is

here supplemented. Legal remedy is provided for everyone dispossessed by

the Crown “_sine legali judicio parium suorum_.” A distinction is drawn,

however, between two classes of wrongs, according as they have been

inflicted by John himself, where summary methods are to rule, or by his

predecessors, where less precipitate procedure must take its course.

The Articles of the Barons had recognized the same distinction, while

providing somewhat different treatment. Those disseised by Henry or

Richard were to get redress "according to the judgment of their peers in

the king’s court"; those disseised by John, “according to the judgment

of the twenty-five barons,” that is, of the executors, to be afterwards

more fully discussed. Both cases, however, were in the Articles

qualified by a stipulation which calls for comment. John had taken the

crusader’s vow a few months previous, and now claimed the usual three

years’ “respite” allowed to those preparing for the holy war, from all

legal proceedings against them. The barons, viewing John’s vow as a

deliberate and notorious perjury, rejected his claim. The point was

referred by the Articles of the Barons to arbitration. The prelates,

whose _judicium_ on this point was declared to be final (“_appellatione

remota_”), and who were bound to give an early decision (“_ad certum

diem_”), might not unreasonably have been suspected of partiality, since

“taking the cross” was not a step to be belittled by churchmen. Yet they

seem to have acted in a spirit of not unfair compromise, if the clause

as it finally appeared in John’s Magna Carta may be taken as giving the

substance of their award.

The crusader’s privilege was not allowed by Langton and his

fellow-arbitrators in cases where John himself had been the disseisor;

the twenty-five executors might there decide forthwith. Respite was

allowed, however, in respect of the disseisins of Henry and of Richard

(except where legal proceedings were already pending).[1017] The Charter

says nothing of the procedure to be adopted at the close of the three

years; but there was probably no intention to depart from the terms of

the Articles in this respect, namely, "judgment of peers in the king’s

court."

-----

Footnote 1017:

This “benefit of a crusader” was extended to John in three other sets

of complaints, specified in c. 53 (_q.v._).

-----

John had good reason to consider as unfair the mode here appointed for

deciding disputes as to disseisins effected by him. Many delicate points

would thus be referred to the summary decision of a baronial committee,

sure to be composed of his most bitter enemies—the very men, perhaps,

whom he had dispossessed. If the “judgment of the twenty-five” meant for

the barons “the judgment of peers,” it meant for the king the judgment

of inferiors and enemies.[1018]

-----

Footnote 1018:

This chapter embraced not merely estates still retained in John’s

possession, but also those granted out anew, the titles of which had

been guaranteed by the Crown. If the former owner recovered these, the

Crown was legally bound by feudal law to make good the loss inflicted

on the present holder by his eviction. The case of Welshmen is

specially treated in c. 56 (_q.v._).

-----

CHAPTER FIFTY-THREE.

Eundem autem respectum habebimus, et eodem modo, de justicia exhibenda

de forestis deafforestandis vel remansuris forestis, quas Henricus pater

noster vel Ricardus frater noster afforestaverunt, et de custodiis

terrarum que sunt de alieno feodo, cujusmodi custodias hucusque habuimus

occasione feodi quod aliquis de nobis tenuit per servicium militare, et

de abbaciis que fundate fuerint in feodo alterius quam nostro, in quibus

dominus feodi dixerit se jus habere; et cum redierimus, vel si

remanserimus a peregrinacione nostra, super hiis conquerentibus plenam

justiciam statim exhibebimus.[1019]

We shall have, moreover, the same respite and in the same manner in

rendering justice concerning the disafforestation or retention of

those forests which Henry our father and Richard our brother

afforested, and concerning the wardship of lands which are of the fief

of another (namely, such wardships as we have hitherto had by reason

of a fief which anyone held of us by knight’s service), and concerning

abbeys founded on other fiefs than our own, in which the lord of the

fee claims to have right; and when we have returned, or if we desist

from our expedition, we will immediately grant full justice to all who

complain of such things.

-----

Footnote 1019:

The words, “_et eodem modo, de justicia exhibenda_,” and “_vel

remansuris forestis_” are written at the foot of both the Cottonian

versions. Cf. _supra_, 195, n. They make clear, rather than add to,

the meaning of the rest.

-----

This chapter makes an advance upon the Articles of the Barons, extending

to three kinds of abuses, not specially mentioned there, the respite

provided in chapter 52 for redressing acts of illegal disseisin. The

“close time” secured to John in virtue of his crusader’s vow is to cover

(_a_) inquiries into the proper boundaries of forests said to have been

extended by his father or by his brother; (_b_) wardships over the lands

of under-tenants usurped by him by reason of his illegal extension of

prerogative wardship, and (_c_) abbeys founded by mesne lords and seized

by John during vacancies in violation of the rights of wardship of such

founders.[1020]

-----

Footnote 1020:

It thus supplements three previous chapters (_a_) c. 47; (_b_) c. 37;

and (_c_) c. 46 respectively.

-----

CHAPTER FIFTY-FOUR.

Nullus capiatur nec imprisonetur propter appellum femine de morte

alterius quam viri sui.

No one shall be arrested or imprisoned upon the appeal of a woman, for

the death of any other than her husband.

The object of this chapter was to find a remedy for what the barons

evidently considered an unfair advantage enjoyed by women appellants,

who were allowed to appoint some champion to act for them in the

_duellum_, while the accused man had to fight for himself. The

connection between appeal and battle, and the distinction between battle

following on appeal and battle on a writ of right, have already been

explained.[1021] In civil pleas wherein combat was legally competent,

neither party could fight in person: champions were insisted on,

although _hired_ champions were condemned. In theory, these men were

witnesses, each swearing that he had actually seen the seisin—that is,

had been present at the infeftment of the claimant whose title he

supported, or at that of his ancestor from whom he inherited the

land.[1022] In criminal pleas, on the other hand, the parties must fight

in their own persons. This distinction is not so illogical as it seems

at first sight, for the appellant was supposed to be an eye-witness of

the crime[1023]; and the apparent anomaly disappears when both rules of

procedure are treated as deductions from the principle that the

combatants in all cases were witnesses whose conflicting testimonies

must be weighed in the balance of battle, with an overruling Providence

holding the scales.

-----

Footnote 1021:

Cf. _supra_, c. 36.

Footnote 1022:

Bracton, _folio_ 151 _b._, cites the case of a champion sentenced to

mutilation of a foot because he confessed that he was paid to appear,

and was not really a witness. The Statute of Westminster, I. (3 Edward

I. c. 41), enacted that champions need not swear to the personal

knowledge of what they maintained. See also Neilson, _Trial by

Combat_, 48–51.

-----

Footnote 1023:

The appellant “in all cases except murder, that is, secret homicide,

made oath as a witness that he had seen and heard the deed.” Neilson,

_Trial by Combat_, 48.

-----

-----

In a case of murder, no private accuser would be heard unless he alleged

that he had seen the accused actually do the deed. The stringency of

this rule was, however, modified by legal fictions. The near relation,

or the feudal lord, of the slain man was treated as constructively

present at his slaying, because of the closeness of the bond of blood or

of homage between the two. This, at least, is the most plausible

interpretation of Glanvill’s words: “No one is admissible to prove the

accusation unless he be allied in blood to the deceased or be connected

with him by the tie of homage or lordship, _so that_ he can speak of the

death upon testimony of his own sight.”[1024]

-----

Footnote 1024:

Glanvill, XIV. c. 3.

-----

The rule also which required an appellant to offer proof by his own body

was relaxed in certain cases; women, men over sixty years of age, and

those with broken bones or who had lost a limb, an ear, a nose, or an

eye, were unable to fight effectively, and might therefore appear by

proxy.[1025] The privilege thus accorded to women was looked on with

much disfavour as conferring an unfair advantage as against appellees

who were not allowed to produce a substitute. Accordingly an option was

given the man accused by a woman; he might, in Glanvill’s words, elect

either "to abide by the woman’s proof or to purge himself by the

ordeal."[1026] This option was freely used; an appellee in 1201 was

allowed to go to the ordeal of water,[1027] while two years later when

the widow of a murdered man offered to prove her accusation “as the

court shall consider,” the accused was allowed to go to the ordeal, “for

he has elected to bear the iron.”[1028] After the virtual abolition of

ordeal in 1215, appeals by women were usually determined _per patriam_

(that is by the sworn verdict of a jury of neighbours). Such is the

doctrine of Bracton,[1029] whose authority is amply borne out by

recorded cases. Thus in 1221, a man accused by a woman of her husband’s

murder offered fifteen marks for a verdict of the jurors.[1030]

-----

Footnote 1025:

See Bracton, II. ff. 142 _b_, 145 _b_; also Neilson, _Trial by Combat_

47, and authorities there cited.

Footnote 1026:

Glanvill, XIV. c. 3.

Footnote 1027:

_Sel. Pleas of the Crown_, No. 1.

Footnote 1028:

_Ibid._, No. 68. Cf. No. 119.

Footnote 1029:

Bracton, _folio_ 142 _b_.

Footnote 1030:

_Select Pleas of the Crown_, No. 130.

-----

A woman’s right of accusation (even when thus safeguarded from abuse)

was restricted to two occasions, the murder of her husband and the rape

of her own person. Magna Carta mentions only one of these two grounds of

appeal; but silence on the subject of assault need not be interpreted as

indicating any intention to deprive women of their rights in such

cases.[1031]

-----

Footnote 1031:

The Act 6 Richard II. c. 6, to prevent the wife’s connivance, extended

the right of appeal in such cases to a woman’s husband, father, or

other near relative; but denied the appellee’s right to the option of

defending himself by battle—thus proving no exception to the policy of

discouraging the _duellum_ wherever possible.

-----

The present chapter of the Great Charter confines itself to appeals of

murder, declaring that no woman has the right to institute proceedings

in this way for the death of father, son, or friend, but only for that

of her husband. Hard as this rule may seem, the barons here made no

change on existing law. Glanvill does not seem to recognize the

possibility of a woman’s appeal of homicide save for the death of her

husband.[1032] He seems to deduce the reason for allowing it in that

case from the principle already explained: "A woman is heard in this

suit accusing anyone of her husband’s death, if she speak as being an

eye-witness to the fact, because husband and wife are one flesh"—another

example of constructive presence.[1033]

-----

Footnote 1032:

Glanvill, XIV. c. 3.

Footnote 1033:

Glanvill, XIV. c. 33, Fleta I. c. 3, seems by different words to

indicate only the same doctrine of constructive presence, when he

speaks in this connection “_de morte viri sui inter brachia sua

interfecti_,” although laboured explanations of this passage are

sometimes attempted, _e.g._ Coke, _Second Institute_, 93. Pollock and

Maitland (I. 468, n.) dismiss the phrase _inter brachia sua_ as "only

a picturesque ‘common form.’"

-----

There seems to be no authority whatever for Coke’s hasty inference from

the provisions of this chapter, that previous to 1215 a woman had an

appeal for the death of any one of her “ancestors.”[1034] The chapter,

in spite of its declaratory nature, seems an ungallant one, indicating

that the barons were more careful to guard themselves against

unnecessary risk than to champion the cause of defenceless women.[1035]

-----

Footnote 1034:

See Coke, _Second Institute_, p. 68, and contrast Pollock and

Maitland, I. 468. John’s justices rejected in 1202 a woman’s claim to

appeal for her father’s death, and some ten years later two other

claims for the death of sons. See _Select Pleas of the Crown_, Nos.

32, 117, and 118.

Footnote 1035:

A peculiarity in the wording of this clause should, perhaps, be

noticed. It restricts explicitly not appeals by women, but merely

“arrest and imprisonment” following on such.

-----

CHAPTER FIFTY-FIVE.

Omnes fines qui injuste et contra legem terre facti sunt nobiscum, et

omnia amerciamenta facta injuste et contra legem terre, omnino

condonentur, vel fiat inde per judicium viginti quinque baronum de

quibus fit mencio inferius in securitate pacis, vel per judicium majoris

partis eorundem, una cum predicto Stephano Cantuariensi archiepiscopo,

si interesse poterit, et aliis quos secum ad hoc vocare voluerit: et si

interesse non poterit, nichilominus procedat negocium sine eo, ita quod,

si aliquis vel aliqui de predictis viginti quinque baronibus fuerint in

simili querela, amoveantur quantum ad hoc judicium, et alii loco eorum

per residuos de eisdem viginti quinque, tantum ad hoc faciendum electi

et jurati substituantur.

All fines made with us unjustly and against the law of the land, and

all amercements imposed unjustly and against the law of the land,

shall be entirely remitted, or else it shall be done concerning them

according to the decision of the five-and-twenty barons of whom

mention is made below in the clause for securing the peace, or

according to the judgment of the majority of the same, along with the

aforesaid Stephen, archbishop of Canterbury, if he can be present, and

such others as he may wish to bring with him for this purpose, and if

he cannot be present the business shall nevertheless proceed without

him, provided always that if any one or more of the aforesaid

five-and-twenty barons are in a similar suit, they shall be removed as

far as concerns this particular judgment, others being substituted in

their places after having been selected by the rest of the same

five-and-twenty for this purpose only, and after having been sworn.

The thirty-seventh of the Articles of the Barons, forming the draft of

this chapter, refers specially to one particular class of illegal fines,

namely those exacted by John from defenceless widows in return for being

allowed the peaceful enjoyment of their legal rights of property in

their own and their husband’s estates (“_pro dotibus, maritagiis, et

hereditatibus_”). It forms thus a natural supplement to chapter 7. The

earlier chapter had confirmed widows in their rights for the future;

this one remits fines unjustly taken in the past. It is probable that

even the clause of the Articles of the Barons did not intend to limit

its own operation to this one group of unjust fines; and it mentions

amercements, without any qualification. In any view, the terms of Magna

Carta were broadened out to embrace illegal fines and amercements of

every sort.[1036]

-----

Footnote 1036:

In its expanded form the clause becomes a supplement, not merely to c.

7, but also to cc. 20, 21 and 22 (which defined procedure at

amercements), and to cc. 36 and 40 (which condemned John’s practice of

refusing writs and justice until heavy fines were offered for them).

-----

The distinction between fines and amercements, absolute in theory but

tending to become obliterated in practice, has been explained in a

former chapter.[1037] The system of arbitrary fines, always so galling a

feature in the Crown’s policy throughout the Middle Ages, culminated in

the reign of John, whose talents were well suited to the development of

its ingenious and mean details. Dr. Stubbs describes the product of his

labours as “the system of fines which was elaborated into that minute

and grotesque instrument of torture which all the historians of the

reign have dwelt on in great detail.”[1038] Hallam commented on this in

a passage which has become classical. "The bishop of Winchester paid a

ton of good wine for not reminding the king (John) to give a girdle to

the countess of Albemarle; and Robert de Vaux five best palfreys, that

the same king might hold his peace about Henry Pinel’s wife. Another

paid four marks for leave to eat (_pro licentia comedendi_)."[1039]

-----

Footnote 1037:

See _supra_, c. 20.

Footnote 1038:

See _Preface_ to W. Coventry, II. lxix.

Footnote 1039:

_Middle Ages_, II. 438. Hallam’s examples are all drawn from Madox, I.

507-9. Other illustrations of fines and amercements may be found under

several of the foregoing chapters. Every man who began a plea and lost

it, or abandoned it, was amerced.

-----

Unique procedure was provided by the present chapter for deciding

disputes as to the legality of fines and amercements. Authority to

decide was vested in a board of arbitrators to consist of thirteen or

more of the twenty-five executors, together with Stephen Langton and

such others as he chose to summon. No mention is made of the maximum

number whom the primate might thus nominate, and there is no attempt to

define their powers relative to those of the other members of the board,

a somewhat unbusinesslike omission, but one which testifies to the great

confidence placed in Langton by those who approved its terms. Care is

taken to prevent such members of the twenty-five as were likely to be

biased from sitting in judgments on suits like their own—a stipulation

which might with advantage have been extended to several other chapters.

This chapter, like others addressed to the special circumstances of

John’s reign, found no echo in future charters.

CHAPTER FIFTY-SIX.

Si nos disseisivimus vel elongavimus Walenses de terris vel libertatibus

vel rebus aliis, sine legali judicio parium suorum, in Anglia vel in

Wallia,[1040] eis statim reddantur; et si contencio super hoc orta

fuerit, tunc inde fiat in marchia per judicium parium suorum, de

tenementis Anglie secundum legem Anglie, de tenementis Wallie secundum

legem Wallie, de tenementis marchie secundum legem marchie. Idem facient

Walenses nobis et nostris.

-----

Footnote 1040:

The words “_in Anglia vel in Wallia_” are written at the foot of one

of the Cottonian versions, (cf. _supra_, 195, n.); but their omission

from their proper place is clearly a clerical error, since they appear

_in situ_ in the Articles of the Barons.

-----

If we have disseised or removed Welshmen from lands or liberties, or

other things, without the legal judgment of their peers in England or

in Wales, they shall be immediately restored to them; and if a dispute

arise over this, then let it be decided in the marches by the judgment

of their peers; for tenements in England according to the law of

England, for tenements in Wales according to the law of Wales, and for

tenements in the marches according to the law of the marches. Welshmen

shall do the same to us and ours.

This is the first of three chapters directed towards redressing wrongs

suffered by Welshmen: and the three taken together testify to the

importance attached by the barons to the value of the Welsh alliance.

Restoration is to be made (_a_) of illegal disseisins effected by John

(chapter 56); (_b_) of those effected by Henry II. and Richard I.

(chapter 57); and (_c_) of hostages and charters delivered to John as

pledges of peace (chapter 58).

The present chapter does for Welshmen what the first part of chapter 52

had already done for Englishmen. The reasons for treating Welshmen

separately were probably twofold, partly for the sake of emphasis, and

partly because some slight differences of detail were required.

“Judgment of peers,” indeed, was applied to both cases, but for the

dispossessed Welshmen, “_in marchia per judicium parium suorum_” takes

the place of the “_per judicium viginti quinque baronum_” provided for

Englishmen in like case. The “venue” was thus apparently fixed in the

marchland for all Welshmen’s cases, although three different kinds of

law were to be applied according to the situation of the property in

dispute. This clear indication of the existence of three distinct bodies

of law, one for England, another for Wales, and a third for the marches,

shows that the unifying task of the common law had not yet been

completed. Interesting questions of a nature analogous to those treated

by the branch of modern jurisprudence known as International Private Law

must constantly have arisen. The “peers” of a Welshman were not defined;

but a court composed of Welsh barons or freeholders was probably meant.

The final words of the chapter, declaring that Welshmen were to afford

reciprocal redress to John and his subjects, are interesting, since they

imply that Welshmen had, in some cases, successfully seized lands

claimed by Englishmen. Here, as usual, the barons were mainly interested

in securing their own rights.

CHAPTER FIFTY-SEVEN.

De omnibus autem illis de quibus aliquis Walensium disseisitus fuerit

vel elongatus sine legali judicio parium suorum per Henricum regem

patrem nostrum vel Ricardum regem fratrem nostrum, que nos in manu

nostra habemus, vel que alii tenent que nos oporteat warantizare,

respectum habebimus usque ad communem terminum crucesignatorum, illis

exceptis de quibus placitum motum fuit vel inquisicio facta per

preceptum nostrum ante suscepcionem crucis nostre: cum autem redierimus,

vel si forte remanserimus a peregrinacione nostra, statim eis inde

plenam justiciam exhibebimus, secundum leges Walensium et partes

predictas.

Further, for all those possessions from which any Welshman has,

without the lawful judgment of his peers, been disseised or removed by

King Henry our father, or King Richard our brother, and which we

retain in our hand (or which are possessed by others, to whom we are

bound to warrant them) we shall have respite until the usual term of

crusaders; excepting those things about which a plea has been raised

or an inquest made by our order before we took the cross; but as soon

as we return, (or if perchance we desist from our expedition), we will

immediately grant full justice in accordance with the laws of the

Welsh and in relation to the foresaid regions.

The provisions here made for restoring to Welshmen estates of which they

had been unjustly dispossessed by Henry or Richard are expressed in

terms identical with the similar provisions made in the latter part of

chapter 52 for Englishmen in like case, except for the last words, “in

accordance with the laws of the Welsh in relation to the aforesaid

districts,” indicating the three systems of law referred to in the

previous chapter. No machinery is here specified for declaring or

applying that law; the need for this indeed had been rendered remote by

John’s success before the arbitrators who determined that a crusader’s

privilege should be accorded him.[1041]

-----

Footnote 1041:

See _supra_, c. 52.

-----

The Articles of the Barons had, however, mentioned the procedure to be

adopted; and a comparison of the terms of articles 25 and 44 with those

of chapter 57 of the Charter suggests the antithesis between “_per

judicium parium suorum in curia regis_” for Englishmen in such cases,

and “_in marchia per judicium parium suorum_” for Welshmen.

CHAPTER FIFTY-EIGHT.

Nos reddemus filium Lewelini statim, et omnes obsides de Wallia, et

cartas que nobis liberate fuerunt in securitatem pacis.

We will immediately give up the son of Llywelyn and all the hostages

of Wales, and the charters delivered to us as security for the peace.

The treatment of hostages in general and Welsh hostages in particular

has already been fully illustrated.[1042] The patent and close rolls of

the reign show a constant coming and going of these living pledges of

the peace. A writ of 18th December, 1214, for example, bade Engelard de

Cygony restore three Welsh nobles to Llywelyn.[1043] Since then, new

hostages, including Llywelyn’s own son, had been handed over; and

charters also had apparently been pledged. John now promised

unconditionally to restore all of these; and the Welsh Prince must have

breathed more freely when this was fulfilled, allowing him, his son by

his side, with a light heart to prepare for the hostilities against the

English Crown, long seen to be inevitable and now to be resumed in

alliance with the disaffected English barons.

-----

Footnote 1042:

See _supra_, p. 517.

Footnote 1043:

See _supra_, p. 520.

-----

The Articles of the Barons had to some extent treated this question of

the Welsh hostages and charters as an open one, referring its final

determination to the arbitration of Stephen Langton and such others as

he might nominate to act with him. The point had apparently been decided

in favour of the Welsh before the Charter was engrossed in its final

form.[1044]

-----

Footnote 1044:

No. 45 of the Articles of the Barons is connected by a rude bracket

with No. 46 (relating to the king of Scotland); and a saving clause,

thus made applicable to both, is added with some appearance of haste:

“_nisi aliter esse debeat per cartas quas rex habet, per judicium

archiepiscopi et aliorum quos secum vocare voluerit_.” Cf. _supra_,

202. So far as related to Scotch affairs, the king’s _caveat_ found

its way, although in an altered form, into Magna Carta. See c.59.

-----

CHAPTER FIFTY-NINE.

Nos faciemus Alexandro regi Scottorum de sororibus suis, et obsidibus

reddendis, et libertatibus suis, et jure suo, secundum formam in qua

faciemus aliis baronibus nostris Anglie, nisi aliter esse debeat per

cartas quas habemus de Willelmo patre ipsius, quondam rege Scottorum; et

hoc erit per judicium parium suorum in curia nostra.

We will do toward Alexander, King of Scots, concerning the return of

his sisters and his hostages, and concerning his franchises, and his

right, in the same manner as we shall do towards our other barons of

England, unless it ought to be otherwise according to the charters

which we hold from William his father, formerly King of Scots; and

this shall be according to the judgment of his peers in our court.

A heterogeneous body of forces was drawn into temporary union by common

hatred of John. The barons welcomed allies whether from Wales or from

Scotland; if the three preceding chapters were a bid for Llywelyn’s

support, this one was dictated by a desire to conciliate Alexander. John

was forced to promise to restore to the king of Scots his sisters and

other hostages, together with his franchises and his “right.” This last

word covered Alexander’s claim to independence and also whatever title

he might prove good to various English fiefs which he claimed to hold

under the English Crown.

Opinions have been, and still are, sharply divided as to whether, or in

what degree, Scotland was subject to feudal overlordship. Of one fact

there can be no doubt; David I. and his successors, kings of Scotland,

had been wont to do fealty and homage to the kings of England; but this

fact has received widely different interpretations. Such homage, it is

argued, was performed in respect of certain English baronies which

happened to belong by hereditary right to the kings of Scotland, namely,

the earldom of Huntingdon, the isolated position of which enabled the

English Crown without danger to admit the claim, and the counties of

Northumberland, Cumberland, and Westmoreland, the proximity of which to

the border rendered their possession by a Scottish prince a source of

weakness to England.[1045] The terms in which the oath of homage was

taken did not indicate for what fiefs it was sworn—whether for the

English earldoms alone, or for the whole country north of Tweed as well.

-----

Footnote 1045:

See Stubbs, _Const. Hist._, I. 596.

-----

The position of the kings of Scots remained ambiguous in this respect,

until William the Lion was placed at a terrible disadvantage by his

capture at Alnwick in 1174, after supporting the rebellion against Henry

II. To gain his release he ratified the Treaty of Falaise on 8th

December, of that year, by which he agreed in future to hold all his

territories as fiefs of the English Crown. All his tenants in Scotland

were to take a direct oath to Henry; while hostages were surrendered

along with the castles of Berwick, Roxburgh, Jedburgh, Edinburgh, and

Stirling.[1046]

-----

Footnote 1046:

See Ramsay, _Angevin Empire_, 183–4. In the spring of 1185, Henry

confirmed William’s claim to the Earldom of Huntingdon, and the Scots

king, prior to Christmas, 1186, transferred it to his brother David.

_Ibid._, 226, n.

-----

This notable achievement of Henry’s diplomacy was, like other portions

of his life’s work, undone by his successor. Richard, preparing for his

crusade of 1190, sold recklessly every right that would fetch a price:

William bought back the independence of his ancient kingdom; but this

restoration of the relations that had prevailed previous to 1174,

involved a restoration of all the old ambiguities. When Richard died,

William despatched ambassadors to England, pressing his claims upon the

northern counties, promising to support John’s title in return for their

admission, and adding threats.[1047]

-----

Footnote 1047:

See Miss Norgate, _John Lackland_, 66.

-----

John avoided committing himself to a definite answer until his position

in England was assured; thereafter he commanded William to do homage

unconditionally. The Scots king disregarded the first summons, but

yielded to a second, taking the oath in public on the summit of the hill

of Lincoln, on 21st November, 1200, “reserving always his own

right.”[1048] The saving clause left everything vague as before.

-----

Footnote 1048:

See Stubbs, _Const. Hist._, I. 596, n., and Norgate, _John Lackland_,

73, 78. Cf. the words “_salvo jure suo_” with the “_et jure suo_” of

Magna Carta.

-----

In April, 1209, the king of Scots incurred John’s displeasure by

sheltering bishops who had supported the policy of Rome in the matter of

the interdict. William’s only son, Alexander, was demanded as a hostage,

or alternatively three border castles must be delivered up. After a

refusal, the old king gave in on 7th August, 1209.[1049] Alexander did

homage on behalf of his father “for the aforesaid castles and other

lands which he held,” and found sureties for the payment of 15,000

marks. William’s daughters, Margaret and Isabel (the two ladies referred

to in Magna Carta) became the wards of John, who had the right to bestow

them in marriage—stipulations which come suspiciously near an admission

of feudal vassalage.[1050] There seems, however, to have been some

understanding that one of them should wed John’s eldest son.[1051]

Margaret and Isabel, though kept virtually as prisoners in Corfe Castle,

Dorset, were yet honourably and kindly treated there. The Close Rolls of

the reign contain several entries (which read strangely enough among the

sterner memorials of John’s diplomacy) containing orders for supplying

them with articles of comfort and luxury. Thus on 6th July, 1213, John,

busy as he must have been with affairs of state, instructed the Mayor of

Winchester to despatch in haste for the use of his niece Eleanor and of

the two Scots princesses robes of dark green (tunics and super-tunics)

with capes of cambric and fur of miniver, together with twenty-three

yards of good linen cloth, with light shoes for summer wear, “and the

Mayor is to come himself with all the above articles to Corfe, there to

receive the money for the cost of the same.”[1052] Margaret and Isabel

had no reason to complain of such treatment, whatever thoughts the Mayor

of Winchester may have had of so liberal an interpretation of his civic

duties.

-----

Footnote 1049:

_New Rymer_, I. 103, where “Northampton” is apparently a mistake for

“Norham.” See Ramsay, _Angevin Empire_, 421, n.

Footnote 1050:

Ramsay, _Ibid._, and authorities there cited.

Footnote 1051:

Ramsay, _Angevin Empire_, 421, and authorities.

Footnote 1052:

_Rot. Claus._, I. 144, and I. 157. This Eleanor was the sister of

Prince Arthur. The fortunes of war had in 1202 placed both of them in

John’s hands. Arthur disappeared—murdered it was supposed; Eleanor

remained a prisoner for life; the Scots princesses were virtually her

fellow-prisoners for a time in Corfe Castle.

-----

Meanwhile, events in Scotland had favoured English pretensions. In the

year 1212, William, now in advanced age, although his son was still a

stripling, was compelled by internal troubles to appeal for aid to John.

Cuthred, a claimant for the Scottish throne as a descendant of Donald

Bane MacWilliam, having acquired a considerable following in Scotland,

endeavoured to dethrone King William; and his attempt seemed likely to

succeed, when English succour was asked and paid for by a Treaty signed

at Norham on 7th February, 1212. By this, William granted to John the

right to marry the young Alexander, then fourteen years of age, “_sicut

hominem suum ligium_,” to whomsoever he would, at any time within the

next six years, but always "without disparagement"—a phrase already

explained.[1053] William further pledged himself and his son to keep

faith and allegiance to John’s son, Henry, “as their liege lord” against

all mortals.[1054] The young Scottish prince thereafter journeyed

southwards in the train of John, by whom he was knighted on the 4th of

March at London. In June an English army entered Scotland; the pretender

was defeated and killed. William had saved his Crown, but his

independence was impaired. Scotland was gradually sinking into the

position of a vassal state. This was recognized at Rome. On 28th

October, 1213, Innocent III., among other healing measures consequent on

John’s surrender of his kingdom, ordered the king of Scotland and his

son to show fealty and devotion to John, in terms similar to those

addressed to the English barons.[1055]

William the Lion died at Stirling on 4th December, 1214, and Alexander

was crowned at Scone two days later,[1056] his peaceful succession being

facilitated by the knowledge that he had the support of John. On 28th

April, 1215, the English king, already deep in his quarrel with the

barons, acknowledged receipt of Thomas Colville and other Scotsmen as

hostages.[1057] Such was the position of affairs when John was brought

to bay at Runnymede. The barons were willing to bid for the alliance of

Alexander; yet it was unnecessary to bid high, since his unsatisfied

claims on the northern counties predisposed him against the English

king. The barons, therefore, did nothing calculated to endanger such

hold as England had over the Scottish Crown. John promised to restore

Alexander’s sisters and other hostages unconditionally, but used words

which committed him on none of the disputed points.[1058] Franchises and

“right” were to be restored only in so far as accorded with the terms of

King William’s “charters” as interpreted by the judgment of the English

barons in the court of the English king.[1059]

-----

Footnote 1053:

See _supra_, c. 6.

Footnote 1054:

_New Rymer_, I. 104. See also W. Coventry, II. 206.

Footnote 1055:

See _New Rymer_, I. 116.

Footnote 1056:

Ramsay, _Angevin Empire_, 477, n.

Footnote 1057:

See _Rot. Pat._, I. 134, and _New Rymer_, I. 120.

Footnote 1058:

Both ladies, however, remained prisoners after Henry III.’s accession.

Peter de Maulay, constable of Corfe Castle, was, in that king’s fifth

year, credited with sums expended on their behalf. _Rot. Claus._, I.

466; see also I. 483. Both found permanent homes in England—Margaret

as wife of Hubert de Burgh, Earl of Kent (mentioned in preamble of

Magna Carta); Isabel as wife of Roger Bigod, Earl of Norfolk (one of

the Charter’s executors). See Ramsay, _Angevin Empire_, 421, and

authorities there cited.

Footnote 1059:

This reference to charters was probably intended to cover (_a_) the

Treaty of Falaise, (_b_) the agreement of 7th August, 1209, and (_c_)

the writ of 7th February, 1212, with the other charters to which it

refers. It called itself a charter, and suggested others by the words

_hinc et inde_.

-----

The allusion to the Scottish king as one among “our other barons of

England” need not be pressed against Alexander any more than similar

expressions should be pressed against John, whose position as Duke of

Normandy and Aquitaine in no way made England a fief of the French

Crown. In questions affecting his feudal position in France, John’s

peers were the dukes and counts of that country; and similarly those who

had a right to sit in judgment as Alexander’s peers over his claims to

English fiefs were the English earls and barons. Such a tribunal was not

likely to give decisions favourable to Scots pretensions at the expense

of England.[1060]

Alexander, though no party to the treaty at Runnymede, was willing to

extract such benefit from it as he could. Accordingly, on 7th July,

1215, he despatched the Archbishop of St. Andrews and five laymen to

John “concerning our business which we have against you to be transacted

in your court.”[1061] Nothing came of this; and when the civil war began

Alexander invaded England in order to push his claims. John swore his

usual oath, "by God’s teeth," that he would “chase the little red-haired

fox-cub from his hiding holes.”[1062] Neither Alexander’s participation

in the war nor the subsequent efforts of diplomacy achieved settlement

of the questions in dispute. None of the latent ambiguities had been

finally removed when the relations between the two countries entered on

a new phase as a consequence of the attempts at annexation made by

Edward I., “the hammer of the Scots.”

-----

Footnote 1060:

No. 46 of the Articles of the Barons (as qualified by the clause in

the bracket) referred the question of Alexander’s “right” in reference

to his father’s charters to the judgment of Langton and his nominees,

for which Magna Carta substituted “judgment of his peers in our

court.”

Footnote 1061:

_New Rymer_, I. 135.

Footnote 1062:

Matthew Paris, _Chron. Maj._, II. 642: “_Sic fugabimus rubeam

vulpeculam de latibulis suis_.”

-----

CHAPTER SIXTY.

Omnes autem istas consuetudines predictas et libertates quas nos

concessimus in regno nostro tenendas quantum ad nos pertinet erga

nostros, omnes de regno nostro, tam clerici quam laici, observent

quantum ad se pertinet erga suos.

Moreover, all the aforesaid customs and liberties, the observance of

which we have granted in our kingdom as far as pertains to us towards

our men, shall be observed by all of our kingdom, as well clergy as

laymen, as far as pertains to them towards their men.

It would have been as impolitic as it was obviously unfair for the

barons, in their capacity of mesne lords, to inflict upon their own

tenants—the men without whose support they would have been powerless at

Runnymede—those very exactions which they compelled the king to abjure

as against themselves. Accordingly, the benefit of the same “customs and

liberties” conceded by John to his feudal tenants was—in a somewhat

perfunctory manner it is true—extended also to the feudal tenants of all

other magnates, whether cleric or lay. Although the reference to

“customs and liberties” was quite general in its terms, it seems natural

to infer that feudal grievances were chiefly, if not exclusively,

intended, since the view of society indicated is feudal rather than

national, and this is quite in keeping with many other clauses of the

Charter.

These considerations suggest that too wide and liberal a view has

sometimes been taken of the scope of this chapter. Coke treated it as

affecting not merely freeholders, but the whole mass of the people, and

as enunciating a doctrine of mutual responsibility between the king and

his subjects. “This is the chief felicity of a kingdom, when good laws

are reciprocally of prince and people (as is here undertaken) duly

observed.”[1063] In this view he has had many followers, and the present

chapter has received undue emphasis as supporting a democratic

interpretation of Magna Carta.[1064] It has sometimes been referred to

as “the only clause which affects the whole body of the people.”[1065]

The better view is that its provisions were confined to freeholders.

-----

Footnote 1063:

_Second Institute_, 77.

Footnote 1064:

Cf. _supra_, 133–4.

Footnote 1065:

Thomson, _Magna Charta_, 269, and authorities there cited.

-----

Even authors who interpret the chapter in this restricted application

are still prone to exaggerate its importance. Two opposite lines of

comment, in favour respectively with historians of two different

schools, seem equally in need of supplement. (1) This clause is

sometimes regarded as springing directly from the barons’ own

uncontrolled initiative. Dr. Stubbs takes this view, contrasting its

substance with similar restraints imposed by Henry I. on the barons by

his Charter of Liberties, and emphasizing as specially notable the fact

that the present clause was “adopted by the lords themselves.”[1066]

Such praise is unmerited; the barons had no option, since the omission

of provisions to this effect would have been a glaring absurdity and a

most imprudent act. (2) On the other hand, credit for the clause,

equally unwarranted, has been sometimes bestowed on John. Dr. Robert

Henry says that “this article, which was highly reasonable, was probably

inserted at the desire of the king.”[1067]

-----

Footnote 1066:

_Const. Hist._, I. 570. Cf. _supra_, 139–140.

Footnote 1067:

_History of Great Britain_, VI. 74. (6th edition, 1823). See also S.

Henshall, _History of South Britain_, cited by Thomson, _Magna

Charta_, 268-9.

-----

The substance of this chapter appears in the reissues of 1217 and 1225;

but its force is there greatly impaired by the addition of a new clause

inconsistent with its spirit, reserving to archbishops, bishops, abbots,

priors, templars, hospitallers, earls, barons, and all other persons as

well ecclesiastical as secular, all the franchises and free customs they

previously had.[1068] The chief object of this was presumably to make it

clear that Magna Carta, while conferring benefits, took nothing away;

but it would naturally be interpreted as a saving clause in favour of

aristocrats in their relations with their dependants (“_erga suos_”) as

well as with the Crown, thus modifying the clause which immediately

preceded it.

-----

Footnote 1068:

See c. 46 of 1217.

Footnote 1069:

The words “_in perpetuum_” are written at the foot of one of the

Cottonian versions. See _supra_, 195, n.

-----

CHAPTER SIXTY-ONE.

Cum autem pro Deo, et ad emendacionem regni nostri, et ad melius

sopiendam discordiam inter nos et barones nostros ortam, hec omnia

predicta concesserimus, volentes ea integra et firma stabilitate in

perpetuum[1069] gaudere, facimus et concedimus eis securitatem

subscriptam; videlicet quod barones eligant viginti quinque barones de

regno quos voluerint, qui debeant pro totis viribus suis observare,

tenere, et facere observari, pacem et libertates quas eis concessimus,

et hac presenti carta nostra confirmavimus, ita scilicet quod, si nos,

vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris

nostris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum

pacis aut securitatis transgressi fuerimus, et delictum ostensum fuerit

quatuor baronibus de predictis viginti quinque baronibus, illi quatuor

barones accedant ad nos vel ad justiciarum nostrum, si fuerimus extra

regnum, proponentes nobis excessum, petent ut excessum illum sine

dilacione faciamus emendari. Et si nos excessum non emendaverimus, vel,

si fuerimus extra regnum justiciarius noster non emendaverit, infra

tempus quadraginta dierum computandum a tempore quo monstratum fuerit

nobis vel justiciario nostro si extra regnum fuerimus, predicti quatuor

barones referant causam illam ad residuos de viginti quinque baronibus,

et illi viginti quinque barones cum communa tocius terre distringent et

gravabunt nos modis omnibus quibus poterunt, scilicet per capcionem

castrorum, terrarum, possessionum, et aliis modis quibus poterunt, donec

fuerit emendatum secundum arbitrium eorum, salva persona nostra et

regine nostre et liberorum nostrorum; et cum fuerit emendatum intendent

nobis sicut prius fecerunt. Et quicumque voluerit de terra juret quod ad

predicta omnia exequenda parebit mandatis predictorum viginti quinque

baronum, et quod gravabit nos pro posse suo cum ipsis, et nos publice et

libere damus licenciam jurandi cuilibet qui jurare voluerit, et nulli

umquam jurare prohibebimus. Omnes autem illos de terra qui per se et

sponte sua noluerint jurare viginti quinque baronibus, de distringendo

et gravando nos cum eis, faciemus jurare eosdem de mandato nostro, sicut

predictum est. Et si aliquis de viginti quinque baronibus decesserit,

vel a terra recesserit, vel aliquo alio modo impeditus fuerit, quominus

ista predicta possent exequi, qui residui fuerint de predictis viginti

quinque baronibus eligant alium loco ipsius, pro arbitrio suo, qui

simili modo erit juratus quo et ceteri. In omnibus autem que istis

viginti quinque baronibus committuntur exequenda, si forte ipsi viginti

quinque presentes fuerint, et inter se super re aliqua discordaverint,

vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum

habeatur et firmum quod major pars eorum qui presentes fuerint

providerit, vel preceperit, ac si omnes viginti quinque in hoc

consensissent; et predicti viginti quinque jurent quod omnia antedicta

fideliter observabunt, et pro toto posse suo facient observari. Et nos

nichil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua

istarum concessionum et libertatum revocetur vel minuatur; et, si

aliquid tale impetratum fuerit, irritum sit et inane et numquam eo

utemur per nos nec per alium.

Since, moreover, for God and the amendment of our kingdom, and for the

better allaying of the quarrel that has arisen between us and our

barons, we have granted all these concessions, desirous that they

should enjoy them in complete and firm endurance for ever, we give and

grant to them the underwritten security, namely, that the barons

choose five-and-twenty barons of the kingdom, whomsoever they will,

who shall be bound with all their might, to observe and hold, and

cause to be observed, the peace and liberties we have granted and

confirmed to them by this our present Charter, so that if we, or our

justiciar, or our bailiffs or any one of our officers, shall in

anything be at fault toward anyone, or shall have broken any one of

the articles of the peace or of this security, and the offence be

notified to four barons of the foresaid five-and-twenty, the said four

barons shall repair to us (or our justiciar, if we are out of the

realm) and, laying the transgression before us, petition to have that

transgression corrected without delay. And if we shall not have

corrected the transgression (or, in the event of our being out of the

realm, if our justiciar shall not have corrected it) within forty

days, reckoning from the time it has been intimated to us (or to our

justiciar, if we should be out of the realm), the four barons

aforesaid shall refer that matter to the rest of the five-and-twenty

barons, and those five-and-twenty barons shall, together with the

community of the whole land, distrain and distress us in all possible

ways, namely, by seizing our castles, lands, possessions, and in any

other way they can, until redress has been obtained as they deem fit,

saving harmless our own person, and the persons of our queen and

children; and when redress has been obtained, they shall resume their

old relations towards us. And let whoever in the country desires it,

swear to obey the orders of the said five-and twenty barons for the

execution of all the aforesaid matters, and along with them, to molest

us to the utmost of his power; and we publicly and freely grant leave

to every one who wishes to swear, and we shall never forbid anyone to

swear. All those, moreover, in the land who of themselves and of their

own accord are unwilling to swear to the twenty-five to help them in

constraining and molesting us, we shall by our command compel the same

to swear to the effect foresaid. And if any one of the five-and-twenty

barons shall have died or departed from the land, or be incapacitated

in any other manner which would prevent the foresaid provisions being

carried out, those of the said twenty-five barons who are left shall

choose another in his place according to their own judgment, and he

shall be sworn in the same way as the others. Further, in all matters

the execution of which is entrusted to these twenty-five barons, if

perchance these twenty-five are present and disagree about anything,

or if some of them, after being summoned, are unwilling or unable to

be present, that which the majority of those present ordain or command

shall be held as fixed and established, exactly as if the whole

twenty-five had concurred in this; and the said twenty-five shall

swear that they will faithfully observe all that is aforesaid, and

cause it to be observed with all their might. And we shall procure

nothing from anyone, directly or indirectly, whereby any part of these

concessions and liberties might be revoked or diminished; and if any

such thing has been procured, let it be void and null, and we shall

never use it personally or by another.

This important chapter stands by itself, providing machinery for

enforcing all that precedes it. It thus forms what modern jurisprudence

would describe as the “sanction” of the whole, but what was known in the

current phrase of its own day as “the form of security” (_forma

securitatis ad observandum pacem et libertates_).[1070] It contains the

only executive clause of the Charter, the sole constitutional machinery

provided for enforcing the rights now defined on parchment, the sole

protection against future attempts of the king to render them of no

effect.

-----

Footnote 1070:

This phrase occurs in the 49th (and last) of the Articles of the

Barons as the title of a clause which is separated from the others by

a blank on the parchment of the width of several lines of writing:

“_Haec est forma securitatis_,” etc. The words are not used as a

heading in the present chapter itself, but c. 52 refers to c. 61 as

the clause “_in securitate pacis_,” and c. 62 refers to the same as

“_super securitate ista_.”

-----

I. _The Nature of the “Security” or legal Sanction._ The procedure

devised for enforcing the Charter was exceedingly crude: John conferred

upon twenty-five of his most bitter enemies a legal right to organize

rebellion, whenever in their opinion he had broken one of the provisions

of Magna Carta. Violence might be legally used against him, until he

redressed their alleged grievances “to their own satisfaction”

(_secundum arbitrium eorum_). If it had been possible to put so violent

an expedient in practice, the “sovereignty,” or supreme power in

England, would have been split into two for practical purposes. While

the old monarchy remained theoretically intact, John would have held the

sceptre, still nominally his, only until his opponents declared that he

had broken some part of the Charter, when, by his own previously-granted

mandate, it would pass, along with wide powers of coercion, to the

twenty-five barons forming what is sometimes described as a Committee of

Executors, but which was rather a Committee of Rebellion.[1071] Instead

of using, as was afterwards done with steadily increasing success, the

king’s own administrative machinery and his own servants to restrain his

own misdeeds, the barons preferred to set up a rival executive of their

own, with wide but ill-defined powers, and connected with the older

executive by no constitutional bonds. So long as a single alleged

grievance remained unredressed, a new administration composed of John’s

political antagonists existed in an attitude of, at best, armed

neutrality, side by side with King John as the representative of the

older system of monarchic administration.

Footnote 1071:

Cf. S. R. Gardiner, _Short History of England_, 183: “a permanent

organization for making war against the king.”

-----

The procedure for redressing grievances was described in some detail;

the wronged party must make known his case to four barons of the

twenty-five, and these would then personally make it known to the king,

and ask redress. John was allowed time to effect this, but if he refused

or delayed, then compulsion might be used. The Articles of the Barons

had left the maximum term of delay unspecified, merely saying “within a

reasonable time to be determined in the Charter.” The Charter did

determine this, naming forty days. Compulsion might take any form (for

example seizure of castles, lands, and personal estate), except violence

against the person of the king, or against his wife or children. The

present chapter, then, contained the only legal sanction mentioned in

the Charter, and this may be briefly summarized as the delegation by

John to a revolutionary committee of the baronial opposition, of wide

powers of coercion to be used against him.

II. _Minor Details of the Scheme._ Although the whole expedient seems

utterly chimerical to the modern mind, the opposition leaders in 1215

evidently thought they had devised a practicable scheme of government.

This is shown by the care with which they elaborated the procedure to be

adopted at different stages and in various contingencies.

(1) _Appointment of the twenty-five executors._ The members of the

committee were to be, in the first instance, “elected” (a loose word

already discussed) by the “barons.” The _majores barones_ of chapter 14

would undoubtedly have the controlling voice; but the _minores barones_

might possibly have taken some share in the appointment. Vacancies which

occurred through death, absence from England, or any other cause, were

to be filled by the method now known as “co-optation.” The committee,

once appointed, would form a close corporation; no one uncongenial to

the majority could gain admission—an arrangement with a thoroughly

oligarchic flavour. The provision for supplying vacancies caused by

death proves that the scheme was not to be temporary, but to last during

John’s lifetime or longer. Twenty-five magnates seem to have been

actually selected. The writs issued to the Sheriffs on 19th June command

the enforcement of the oath to the twenty-five barons, but do not

mention them by name. Matthew Paris supplies the omission, and though he

does not disclose the source of his information, it is unlikely that so

comprehensive a list could be entirely a work of the imagination.[1072]

They occur in the following order, the earls of Hertford, Aumâle,

Gloucester, Winchester, Hereford, Norfolk, and Oxford, William Marshall

the younger, Robert fitz Walter the elder, Gilbert de Clare, Eustace de

Vesci, Hugh Bigod, William of Mowbray, William Hardell (Mayor of

London), William de Lanvalei, Robert de Ros, John de Lacy (Constable of

Chester), Richard de Perci, John fitz Robert, William Mallet, Geoffrey

de Say, Roger de Mumbezon, William of Huntingfield, Richard de

Muntfitchet, and William of Albini.[1073] There are here no churchmen

and no members of the moderate party whose names appear in the preamble.

All except two, or at the most three, of the twenty-five were drawn from

those factions of the baronage who were the declared enemies of

John.[1074] It was an oligarchy of disaffected Crown tenants, whose

baronial homogeneity was only broken by the presence of one

representative of other classes, the Mayor of London. Such a committee

was not likely to use the excessive powers delegated to it by John to

further any other interests than its own. Even Stephen Langton and his

fellow-prelates were soon to discover this, as the two protests issued

by them clearly prove.

-----

Footnote 1072:

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

Footnote 1073:

The list is taken from Matthew Paris, _Chron. Maj._, II. 604-5, as

corrected by Blackstone, _Great Charter_, p. xx., after collation with

a marginal note on the Harleian MS. of the charter (cf. _supra_, 198,

n). Paris gives “Boys” in place of “Ros,” and “Roger de Munbrai” in

place of “Roger of Mumbezon.” This list should be contrasted with

(_a_) that of the moderate party named in the preamble to Magna Carta,

and (_b_) that of John’s foreign favourites named in c. 50. For

biographical information, see Thomson, _Magna Charta_, 270–312.

Footnote 1074:

These three were Earl Aumâle (a title apparently sometimes exchanged

for that of Earl of York, see Round, _Geoffrey de Mandeville_, 157,

n.), William of Albini, and, possibly, Geoffrey de Say (see Stubbs,

_Const. Hist._, I. 583).

-----

(2) _A majority of those present to form a quorum._ Driven by the

necessities of the case, the barons devised, or stumbled upon, a

peculiarly modern expedient. The presence of every member of the

committee of twenty-five could not reasonably be expected upon every

occasion, while absolute unanimity on questions of delicacy would be

difficult to obtain. It was provided, accordingly, that the will of the

majority of those present should prevail. It would be inaccurate to say,

in modern phraseology, that thirteen formed a quorum, since the quorum

varied with the number of those present. It is notable that no provision

was made for summoning or constituting meetings of the committee endowed

with these tremendous powers. Room was thus left for packed meetings of

one faction being hurriedly convened and usurping the rights of the

whole body. The precedent thus tentatively introduced for the right of a

majority to act for the whole was followed only timidly and at long

intervals. Still, its appearance in John’s Charter marks a stage in the

advance of the valuable principle of modern politics which substitutes

the “counting of heads for the breaking of them.”

(3) _The sub-committee of four._ Four of the twenty-five Executors were

to act as a medium of intercourse between aggrieved individuals and the

king, being charged with the duty of hearing complaints and laying them

before John. Such a position would involve wide discretionary powers;

for if the four barons refused to endorse the justice of the complaint,

John also would be in safety to refuse.[1075]

-----

Footnote 1075:

An alternative explanation is also possible, namely, that the function

of intermediary might be exercised by any four members of the

twenty-five. In that view, an aggrieved individual might have pressure

placed upon the king if he persuaded any four to act together in

support of his claim. This would imply a second quorum, this time of

four, for a special purpose, in addition to the quorum of varying

numbers already discussed. In either view, the road to redress would

be easier for the great man than for his obscure neighbour.

-----

(4) _Local agents of the twenty-five executors._ In each county the

twelve knights, whose original function was to preside at inquiries into

“evil customs,” came to act as the local representatives of the

revolutionary committee, being associated with the sheriff in the

discharge of all his duties and armed with power to constrain him to

carry out the provisions of Magna Carta, very much as the twenty-five

were authorized to constrain the king. In particular, these knights were

charged with the enforcement of the oath of obedience to the

revolutionary committee, and with the confiscation of the property of

all who refused.[1076]

-----

Footnote 1076:

Cf. _supra_, c. 48.

-----

(5) _The part to be played by the public._ The king authorized his

subjects to side with the executors and against him if he should violate

the Charter, and to assist them in such acts of violence as the forcible

seizure of his castles, lands, and personal estate; for his general

mandate was granted to the twenty-five “_cum communa totius terre_,”

while licence was “freely and publicly” bestowed on everyone so disposed

to swear obedience to the Executors in all such acts, and to bring their

weight to bear on the king to the best of their ability. Two aspects of

this provision require special attention: (_a_) _Its relation to

allegiance and treason._ It was intended to operate as a provisional

release of John’s subjects from their oaths of fealty and homage, and

consequently from the pains and penalties of the treason laws. John

solemnly authorized his subjects, in certain circumstances, to transfer

their allegiance from himself to the committee of his foes. If they

refused, he promised to compel them; and on 27th June, 1215, writs were

actually issued instructing the seizure of the lands and goods of all

who would not swear to obey the twenty-five.[1077] (_b_) _Communa totius

terre._ The “community of the whole land” was thus to afford active help

in subjecting the king to the reign of law; and the phrase has been

pressed into the service of democracy by enthusiasts who seek to magnify

modern conceptions by finding their roots in the past. Few words of

medieval Latin offer a more tempting field to enquirers than this

_communa_, which, with its English and French equivalents, holds the key

to many problems of constitutional origins. A group of interesting

questions clusters round the three words “borough, guild, and commune,”

and the appearance in Magna Carta of a body described as a “commune”

(_communa totius terre_) in conjunction with an oath of obedience to a

revolutionary committee suggests an interesting comparison with the form

of civic constitution known in that age as “the sworn commune.”[1078] A

second field of enquiry, equally alluring, is suggested by the fact that

the lower chamber of the Mother of Parliaments, the English “House of

Commons,” was originally composed of the representatives of the various

communes or communities known as counties and boroughs respectively.

-----

Footnote 1077:

See Appendix.

Footnote 1078:

It was only fourteen years since London (in 1191), probably following

the lead of Rouen, had extorted its “sworn commune” from Prince John

as the price of its support (cf. _supra_, c. 13). It might be

dangerous, however, to push so tempting an analogy too far.

-----

These wider questions are here referred to merely as illustrations of

the difficulties that lurk in the word “commune,” and in the equally

perplexing phrase “commune of the whole land.”[1079] The mere use of

such a phrase cannot be accepted as a proof that the Charter rests on a

broad popular basis.

-----

Footnote 1079:

Cf. _supra_, pp. 137-8.

-----

III. _Criticism of the Scheme._ The faults of the scheme, whether viewed

from the side of theory or of practice, are obvious. It was a violent

and unnatural measure, full of immediate dangers, and calculated to

exercise a baneful influence on constitutional development in the

future. The fact that Magna Carta provided no better sanction for its

own enforcement than the right of legalized rebellion has already been

discussed as its cardinal defect.[1080] Instead of preventing the king

from inflicting wrongs, it merely provided forcible measures for the

redress of those already committed, thus adding the crowning evil of

civil war to those minor evils it sought to reform. That the whole

scheme was foredoomed to failure constitutes perhaps its least

conspicuous fault in the eyes of later history. It is instructive to

note a few of its other defects in detail.

-----

Footnote 1080:

See _supra_, p. 150.

-----

(1) The scheme challenged hostility by its want of moderation. It aimed

at reducing the Crown at one blow from the plenitude of irresponsible

tyranny to a position of degrading impotence. On every vexed political

question of the day, John’s authority would have been superseded by that

of twenty-five of the most hostile faction of the baronage. If the king

thought himself aggrieved in anything, he would require to plead his

cause humbly before a tribunal in which his opponents sat as judges. The

scheme was thus repugnant to the mass of loyal Englishmen, who cherished

a respect for the time-honoured principle of monarchy. No king with a

grain of self-respect would long submit tamely to a position so

illogical and degrading—to remain a sovereign whose “sovereignty”

existed merely on the sufferance of his enemies, a puppet-king whose

subjects had the legal right to coerce him. The powers thus conferred on

a baronial committee in 1215 were more sweeping than those conferred on

a similar committee in 1258, and yet the Parliament which appointed the

latter has been branded for all time as “the Mad Parliament,” because of

the violence of its measures against the king.

(2) Rebellion, even where morally justified, is essentially and

necessarily illegal; to attempt to map out for it a legitimate sphere of

action is to attempt the logically impossible. The barons, in their

dearth of political experience, and in the extremity of their need, had

demanded and obtained something more dangerous than the amplest measure

of constitutional authority. They had failed to rise to the true

conception of a limited monarchy. Their scheme recognized a king still

absolute in some matters, but in others powerless and abject. They set

up side by side two rival Executives, each in different circumstances

supreme. The relations of the two were far from accurately defined, even

in theory, while collisions were certain to occur frequently in

practice. The powers of the twenty-five, a body which received no proper

organization, were those of aggression rather than of administration.

Viewed in this light, the claims of the barons to constructive

statesmanship rank extremely low.

(3) The powers of the Revolutionary Committee, excessive though

ill-defined, backed by the sworn obedience of all classes of the nation,

would tend completely to paralyze the king. The nominal sovereign,

always nervous under this sword of Damocles, would lose all power of

initiative, while the committee, so powerful to reduce him to impotence,

would be powerless alike to goad him into action or to act in his stead.

The Revolutionary Committee had been planned as a drag on a bad

executive, not as a good executive to take its place.

(4) Even as a drag, however, the efficiency of the committee would have

been completely neutralized in either of two contingencies: if the

barons composing it disagreed among themselves, or, if the king refused

to surrender, preferring the appeal to arms. The monarch had always the

alternative of civil war, and the material and moral advantage of acting

on the defensive lay with him; while the committee had to face the risks

to which an attacking party is invariably exposed. Not a single step to

restrain the king could legally be taken until he had precipitated

matters by committing a clear act of aggression, and had thereafter

received formal intimation followed by an interval of forty days, during

which he might complete his preparation for war without fear of

interruption.

(5) If the scheme of the barons seems ill-suited to meet the needs of

the hour of its conception, it was fraught with even greater dangers to

the future development of the English constitution. The problem it

sought to solve was one of no transient or unimportant nature, since it

was nothing less than the devising of legal machinery to prevent the

king from abusing the powers entrusted to him. The barons sought the

best method of turning royal promises of reform into laws which

succeeding kings must obey. In attempting this, Magna Carta moved along

lines which were radically wrong; which, if not departed from in time,

would have rendered any enduring progress impossible. The statesmanship

which, while leaving one king on the throne, subjected him to the

dictation of “five-and-twenty over-kings” in regard to all vital

questions of the day, was crude and ill-advised. It is true that the

party of reform throughout the long reign of Henry III. clung to the

same erroneous solution, although under various modifications on points

of detail; but they met with no success. After half a century of unrest

a settlement seemed as far distant as before. If the same policy had

been persisted in during Edward’s reign the English constitution, as it

became known to after ages, would never have been evolved. The dangers

and defects of schemes like those of 1215 and of 1258 are most clearly

seen in contrast with the more tactful efforts of Edward I. towards a

true solution, along lines leading in due time to complete success.

The true policy for the barons was to use the king’s own administrative

machinery and the king’s own servants to control the king himself. The

principle was slowly established that the sovereign could perform no

single act of prerogative except through the agency of the proper

minister or group of ministers. Each function of government became

associated with a specific office or organ of the royal household. The

rights of the official head of each department became stereotyped, and

his position obtained full legal acknowledgment, while very gradually

the doctrine of ministerial responsibility grew up, compelling each

officer of the Crown to obey not only the law of the land, but also the

_Commune Concilium_, fast changing into the modern Parliament. The

expedients of an earlier age disappeared as no longer required, when the

king’s good faith was secured by means of the friendly control of his

own ministers, not by the violent compulsion of his opponents. The

credit of starting the constitution on its right line of development is

in great measure due to Edward I.[1081]

-----

Footnote 1081:

Cf. _supra_, pp. 189-193 for a sketch of Edward’s policy.

-----

IV. _Dr. Gneist’s Criticism._ Dangerous and even absurd as this scheme

appears, it has found its apologist. Dr. Gneist accuses English

historians of making “very inappropriate comparisons” between this

baronial committee and the continental expedients of the same period.

While in most countries of Europe, each baron arrogated the right of

private war against his sovereign in circumstances to be determined by

his own individual judgment, Magna Carta conferred rights of rebellion

only on the barons “in their collective capacity,” and “as represented

by definite organs.”[1082] The substitution of collective repressive

measures for the right of private feud undoubtedly marks an advance; but

rebellion, even when organized, cannot be considered a satisfactory

constitutional expedient. Dr. Gneist is scarcely more convincing when he

argues that English historians and jurists have condemned too

unreservedly a scheme which is “so far in harmony with the spirit of the

feudal state of the Middle Ages as it was based upon a mutual relation

of feudal protection and fealty, that is, upon compact.” “The concession

by agreement,” he continues, “of the rights of distress was altogether

so entirely consonant with the legal conceptions of the Middle Ages that

in this way the committee of resistance loses a portion of its

apparently revolutionary character.”[1083] That the Middle Ages approved

of revolution does not, however, change it into constitutional action;

while the fact that it was founded upon the feudal conception of mutual

contract may explain it, but does not render it more worthy of

admiration. The whole scheme was, of course, thoroughly in accord with

the public opinion of the age, but that merely shows how wide is the

gulf which separates medieval conceptions from modern ones, and how

absurd it is to regard the Great Charter, as is sometimes done, as

anticipating the fundamental principles of the English constitution of

to-day.

-----

Footnote 1082:

Gneist, _English Const._, 251.

Footnote 1083:

_Ibid._

-----

In spite of all apologies, the crudeness of the only sanction provided

by Magna Carta for its own enforcement prevents it from ranking as a

great monument of constructive statesmanship.

V. _Failure of the Scheme._ Almost before John’s Magna Carta, in its

completed form, had been engrossed and sealed, the futility of its

sanction was recognized. Each side grew suspicious and demanded new

“sanctions,” new guarantees not contained in the Charter.

(1) _Quis custodiet ipsos custodes?_ Magna Carta, assuming apparently

that perfect trust could be placed in the rectitude and wisdom of the

Revolutionary Committee, provided no machinery for controlling them, no

guarantee that they would observe the Charter without misinterpreting

its provisions to suit their own selfish interests. The futility of this

complacency was soon manifest. One tyrant had brought distress on the

whole nation; and now he was to be superseded by five-and-twenty. Who

was to restrain the new tyrants? A second committee was nominated partly

to assist and partly to control the twenty-five. Matthew Paris[1084]

describes it as composed of thirty-eight “_Obsecutores et

Observatores_,” including the Earl Marshal, Hubert de Burgh, the earls

of Arundel and Warenne, and other prominent members of the moderate

party, not unfriendly to the king. Dr. Stubbs dismisses their relations

to the executors with the remark that they “swore to obey the orders of

the twenty-five.”[1085] Miss Norgate takes what seems to be a better

view, in emphasizing as the chief reason for their appointment the duty

of compelling “both the king and the twenty-five to deal justly with one

another.”[1086] The thirty-eight were required to constrain the

twenty-five, as the twenty-five constrained the king.[1087]

-----

Footnote 1084:

_Chron. Maj._, II. 605-6.

Footnote 1085:

_Const. Hist._, I. 583, n.

Footnote 1086:

_John Lackland_, 236.

Footnote 1087:

One version of the narrative of Matthew Paris is much fuller than the

other. The first MS. merely says, “_Isti omnes juraverunt quod

obsequerentur mandato viginti quinque baronum._” The second gives the

important addition, “_Omnes isti juraverunt cogere si opus esset

ipsos_ xxv. _barones ut rectificarent regem_. _Et etiam cogere ipsum

si mutato animo forte recalcitraret_,” II. 606, n.

-----

(2) _Suspicions of the barons’ good faith._ Whether the appointment of

the committee of thirty-eight was due partly to John’s influence or was

entirely the result of mutual jealousies in the ranks of those opposed

to him, there is absolute evidence that the king was distrustful of the

barons’ good faith, and desired on his part some “sanction” that they

would not again renounce that allegiance, the renewal of which was the

_quid pro quo_ for which he had granted the Charter. Apparently the

leading barons did renew their oath of fealty and homage on 19th June at

Runnymede; but refused to grant a formal Charter to that effect,

although they had promised to give any security John might require,

except hostages or castles. The prelates when appealed to sided with the

king; they executed a formal declaration or protest, recording the

barons’ promise and subsequent refusal to give effect to it. There is no

reason to doubt the testimony of the prelates; they had been present at

all the negotiations, and it was by their mediation that the terms of

peace embodied in Magna Carta had been settled. This was not the only

matter on which the bishops found it necessary to intervene on the

king’s behalf. The new baronial executive and the twelve knights who

acted as their agents in each county, pushed to unfair lengths the

authority to reform abuses conferred on them in terms of Magna Carta. In

particular, they proceeded virtually to abolish the royal forests

altogether by abrogating as evil customs the procedure on which this

branch of the Crown’s prerogative rested. The prelates placed on record

a formal protest on this head also.[1088]

-----

Footnote 1088:

The texts of both Protests are given in the Appendix.

-----

(3) _Suspicions of John’s good faith._ If neither the king nor the

nation at large considered that the Great Charter contained sufficient

safeguards of their interests against the Committee of Executors, the

barons themselves soon came to the conclusion that the Committee, in

spite of all its powers, formed an inadequate sanction against John.

Accordingly they demanded further “security.” The city of London was

placed in their hands, and the Tower of London in the neutral custody of

the primate, as pledges of John’s good faith, until 15th August or

longer if need were. Those terms were reduced to writing in a document

entitled “_Conventio facta inter Regem Anglie et barones ejusdem

regni_,” which thus supplied a new sanction, or “form of security,”

supplementing, if not superseding, that contained in chapter 61 of Magna

Carta.[1089]

-----

Footnote 1089:

See _supra_, 51–2. The text is given in Appendix. Thirteen of the

twenty-five executors are mentioned by name as agreeing to this new

treaty on behalf of themselves and other earls, barons and freeholders

unnamed. Cf. R. Wendover, III. 319 (“_et turrem Londonarum_”). A third

sanction, or form of security, appears in the garbled versions of the

Charter given by R. Wendover (III. 317) and M. Paris (II. 603): the

constables of the four royal castles of Northampton, Kenilworth,

Nottingham and Scarborough, were to swear to hold these strongholds

under orders of the twenty-five executors. See M. Paris (_Ibid._).

This clause has not been found in any known copy of any issue of Magna

Carta. Cf. Mr. H. R. Luard’s _preface_ to the second volume of Matthew

Paris, pp. xxxiii. to xxxvi., where he discusses the peculiarities of

the versions given by Wendover and Paris.

-----

(4) _Precautions against papal intervention._ The Articles of the barons

afford undoubted evidence of its framers’ suspicions that John would

apply to Rome for absolution from his bargain. They showed considerable

shrewdness in demanding that the English prelates and the papal legate

should become the king’s sureties that he would not procure from the

Pope anything to invalidate the Charter or diminish its efficacy. If

Pandulf, as the Pope’s accredited agent, had actually put his seal to

such a document, he would have seriously embarrassed his august master

in supporting John in a course of repudiation.

Two important alterations in the completed Charter were effected,

however, whether at John’s instance, or at that of Pandulf, or of the

English prelates, is matter of conjecture. No mention was made of

Innocent by name, the clause being made quite general in its terms. John

merely promised to procure a dispensation “from no one,” while the

question of sureties was quietly ignored. The reason for the omission

readily suggests itself; Pandulf would naturally object to commit his

principal or himself to any pledge of the kind. The Pope preserved

perfect freedom, and the use which he made of this is matter of common

knowledge.[1090]

-----

Footnote 1090:

Cf. _supra_, p. 55.

-----

CHAPTER SIXTY-TWO.

Et omnes malas voluntates, indignaciones, et rancores ortos inter nos et

homines nostros, clericos et laicos, a tempore discordie, plene omnibus

remisimus et condonavimus. Preterea omnes transgressiones factas

occasione ejusdem discordie, a Pascha anno regni nostri sextodecimo

usque ad pacem reformatam, plene remisimus omnibus, clericis et laicis,

et quantum ad nos pertinet plene condonavimus. Et insuper fecimus eis

fieri litteras testimoniales patentes domini Stephani Cantuariensis

archiepiscopi, domini Henrici Dublinensis archiepiscopi, et episcoporum

predictorum, et magistri Pandulfi, super securitate ista et

concessionibus prefatis.

And all the ill-will, hatreds, and bitterness that have arisen between

us and our men, clergy and lay, from the date of the quarrel, we have

completely remitted and pardoned to everyone. Moreover, all trespasses

occasioned by the said quarrel, from Easter in the sixteenth year of

our reign till the restoration of peace, we have fully remitted to

all, both clergy and laymen, and completely forgiven, as far as

pertains to us. And, on this head, we have caused to be made out to

them letters patent of Stephen, archbishop of Canterbury, Henry,

archbishop of Dublin, the bishops aforesaid, and master Pandulf, as

evidences of this clause of security and of the foresaid concessions.

The clauses which follow the _forma securitatis_ are entirely of a

formal nature, adding nothing to the substance of Magna Carta. The

present chapter, after making a well-meant declaration that bygones

should be bygones, and that perfect peace and goodwill should everywhere

prevail—a pious aspiration doomed to speedy disillusion—proceeds to

authorize the prelates to issue under their seals certified copies of

the terms of the Great Charter. Such letters were actually issued, and

their terms are preserved in the Red Book of the Exchequer.[1091]

-----

Footnote 1091:

See _folio_ 234. The text which is reproduced by Bémont, _Chartres_,

p. 35, runs as follows: "Omnibus Christi fidelibus ad quos presens

scriptum pervenerit, Stephanus Dei gratia Cantuariensis

archiepiscopus, tocius Anglie primas et sancte romane ecclesie

cardinalis, Henricus, eadem gratia Dublinensis archiepiscopus,

Willelmus Londoniensis, Petrus Wintoniensis, Joscelinus, Bathoniensis

et Glastoniensis, Hugo Lincolniensis, Walterus Wigorniensis, Willelmus

Coventriensis et Benedictus Roffensis, divina miseracione episcopi, et

magister Pandulfus domini pape subdiaconus et familiaris, salutem in

Domino. Sciatis nos inspexisse cartam quam dominus noster Johannes

illustris rex Anglie fecit comitibus, baronibus et liberis hominibus

suis Anglie de libertate sancte ecclesie et libertatibus et liberis

consuetudinibus suis eisdem ab eo concessis sub hac forma....

. . . . [Here follows the text of John’s Magna Carta]. . . .

Et ne huic forme predicte aliquid possit addi vel ab eadem aliquid

possit subtrahi vel minui, huic scripto sigilla nostra apposuimus."

-----

CHAPTER SIXTY-THREE.

Quare volumus et firmiter precipimus quod Anglicana ecclesia libera sit

et quod homines in regno nostro habeant et teneant omnes prefatas

libertates, jura, et concessiones, bene et in pace, libere et quiete,

plene et integre sibi et heredibus suis, de nobis et heredibus nostris,

in omnibus rebus et locis, in perpetuum, sicut predictum est. Juratum

est autem tam ex parte nostra quam ex parte baronum, quod hec omnia

supradicta bona fide et sine malo ingenio observabuntur. Testibus

supradictis et multis aliis. Data per manum nostram in prato quod

vocatur Ronimede, inter Windlesoram et Stanes, quinto decimo die Junii,

anno regni nostri decimo septimo.

Wherefore it is our will, and we firmly enjoin, that the English

Church be free, and that the men in our kingdom have and hold all the

aforesaid liberties, rights, and concessions, well and peaceably,

freely and quietly, fully and wholly, for themselves and their heirs,

of us and our heirs, in all respects and in all places for ever, as is

aforesaid. An oath, moreover, has been taken, as well on our part as

on the part of the barons, that all these conditions aforesaid shall

be kept in good faith and without evil intent. Given under our

hand—the above-named and many others being witnesses—in the meadow

which is called Runnymede, between Windsor and Staines, on the

fifteenth day of June, in the seventeenth year of our reign.

This last of the sixty-three chapters into which Magna Carta has been

divided for purposes of convenience, not by its framers, but by modern

commentators, contains little that calls for special comment. Beginning

with a repetition of the declarations already made in chapter one that

the English church should be free (omitting, however, any second

reference to canonical election) and that _homines in regno nostro_

should have and hold all of the aforesaid liberties, rights and

concessions, it went on to record the fact that both parties had taken

oath to observe its contents in good faith.[1092] The magnates named in

the preamble were thereafter, along with many others who were not named,

referred to collectively as witnesses. The Charter concludes with the

declaration that it has been “given by our hand,” the place and date

being specified, so as to conform to the formalities required in legal

documents. The actual giving by John’s hand was effected by the impress

of his great seal.[1093]

-----

Footnote 1092:

Cf. _supra_, 125.

Footnote 1093:

There are no signatures to the document. The frequent references to

“the signing of the Great Charter” (_e.g._ Medley, _Const. Hist._,

127) are thus inaccurate, if “signing” is taken in its modern sense of

“subscribing,” but may perhaps be justified by a reference to _signum_

in its original meaning of “a seal.” To imprint a seal was, in a

sense, “to sign.” That Magna Carta, in spite of its mention of its own

date as 15th June, was actually sealed on the 19th has already been

asserted, _supra_, 48–49. To the proofs there adduced should be added

the testimony of the _Annals of Dunstable_, III. 43, which report that

peace was made between king and barons at Runnymede “_die Gervasii et

Protasii_.”

-----

APPENDIX.

DOCUMENTS RELATIVE TO, OR ILLUSTRATIVE

OF JOHN’S MAGNA CARTA.

I. THE CHARTER OF LIBERTIES OF HENRY I.[1094]

-----

Footnote 1094:

The text is founded on that of the _Statutes of the Realm_, I. 1; but

has been also collated with the admirable text prepared by M. Bémont,

_Chartes_, 1–6, whose emendations have been freely used not only for

this Charter, but for all those which follow in this Appendix. M.

Bémont gives an exhaustive account of the copies of the lost original

of Henry’s charter.

-----

(1100.)

Anno incarnationis dominice M.CI. Henricus, filius Willelmi regis, post

obitum fratris sui Willelmi Dei gratia rex Anglorum, omnibus fidelibus

salutem.

1. Sciatis me Dei misericordia et communi consilio baronum totius regni

Anglie, ejusdem regem coronatum esse. Et, quia regnum oppressum erat

injustis exactionibus, ego, Dei respectu et amore quem erga vos habeo,

sanctam Dei ecclesiam inprimis liberam facio, ita quod nec vendam, nec

ad firmam ponam, nec mortuo archiepiscopo, sive episcopo, sive abbate,

aliquid accipiam de dominico ecclesie vel de hominibus ejus, donec

successor in eam ingrediatur. Et omnes malas consuetudines, quibus

regnum Anglie injuste opprimebatur, inde aufero; quas malas

consuetudines ex parte hic pono:

2. Si quis baronum, comitum meorum, sive aliorum qui de me tenent,

mortuus fuerit, heres suus non redimet terram suam sicut faciebat

tempore fratris mei, sed justa et legitima relevatione relevabit eam.

Similiter et homines baronum meorum justa et legitima relevatione

relevabunt terras suas de dominis suis.

3. Et si quis baronum vel aliorum hominum meorum filiam suam nuptum

tradere voluerit, sive sororem, sive neptim, sive cognatam, mecum inde

loquatur; sed neque ego aliquid de suo pro hac licentia accipiam, neque

defendam ei quin eam det, excepto si eam vellet jungere inimico meo. Et

si, mortuo barone sive alio homine meo, filia heres remanserit, illam

dabo consilio baronum meorum cum terra sua. Et si, mortuo viro, uxor

ejus remanserit et sine liberis fuerit, dotem suam et maritationem

habebit; et eam non dabo marito, nisi secundum velle suum.

4. Si vero uxor cum liberis remanserit, dotem quidem et maritationem

habebit dum corpus suum legitime servaverit, et eam non dabo, nisi

secundum velle suum; et terre et liberorum custos erit sive uxor, sive

alius propinquarius qui justius esse debeat. Et precipio quod barones

mei similiter se contineant erga filios vel filias et uxores hominum

suorum.

5. Monetagium commune, quod capiebatur per civitates et comitatus, quod

non fuit tempore regis Edwardi, hoc ne amodo sit omnino defendo. Si quis

captus fuerit, sive monetarius, sive alius, cum falsa moneta, justicia

recta inde fiat.

6. Omnia placita et omnia debita que fratri meo debebantur condono,

exceptis rectis firmis meis, et exceptis illis que pacta erant pro

aliorum hereditatibus, vel pro eis rebus que justius aliis contingebant.

Et si quis pro hereditate sua aliquid pepigerat, illud condono, et omnes

relevationes que pro rectis hereditatibus pacte fuerant.

7. Et si quis baronum vel hominum meorum infirmabitur, sicut ipse dabit

vel dare disponet pecuniam suam, ita datam esse concedo; quod si ipse,

preventus armis vel infirmitate, pecuniam suam non dederit val dare

disposuerit, uxor sua, sive liberi, aut parentes, et legitimi homines

ejus, eam pro anima ejus dividant, sicut eis melius visum fuerit.

8. Si quis baronum vel hominum meorum forisfecerit, non dabit vadium in

misericordia pecunie, sicut faciebat tempore patris mei vel fratris mei;

sed, secundum modum forisfacti, ita emendabit sicut emendasset retro a

tempore patris mei, in tempore aliorum antecessorum meorum. Quod si

perfidie vel sceleris convictus fuerit, sicut justum fuerit sic emendet.

9. Murdra etiam, retro ab illa die qua in regem coronatus fui, omnia

condono; et ea que amodo facta fuerint, juste emendentur secundum lagam

regis Edwardi.

10. Forestas, omni consensu baronum meorum, in manu mea retinui sicut

pater meus eas habuit.

11. Militibus qui per loricas terras suas defendunt, terras dominicarum

carrucarum suarum quietas ab omnibus gildis et omni opere proprio dono

meo concedo, ut, sicut tam magno allevamine alleviati sunt, ita se equis

et armis bene instruant ad servitium meum et ad defensionem regni mei.

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

13. Lagam Edwardi regis vobis reddo cum illis emendationibus quibus

pater meus eam emendavit consilio baronum suorum.

14. Si quis aliquid de rebus meis vel de rebus alicujus post obitum

Willelmi regis fratris mei cepit, totum cito sine emendatione reddatur;

et si quis inde aliquid retinuerit, ille super quem inventum fuerit

michi graviter emendabit.

Testibus Mauricio Lundonie episcopo, et Gundulfo episcopo, et Willelmo

electo episcopo, et Henrico comite, et Simone comite, et Waltero

Giffardo, et Rodberto de Monfort, et Rogero Bigoto, et Henrico de Portu,

apud Londoniam, quando fui coronatus.

II. THE SECOND OR OXFORD CHARTER OF STEPHEN.[1095]

(1136.)

-----

Footnote 1095:

The text is founded on that of the _Statutes of the Realm_, I. 3. Cf.

Bémont, _Chartes_, 8–10, who discusses the various editions. Mr. R.

Lane Poole has noted the variants of an original of the Charter

preserved in the muniment room of Salisbury Cathedral; see _Report on

Manuscripts in Various Collections_, I. 384-5 (Historical Manuscripts

Commission, 1901). Two of these variants have been here adopted (a)

“_regem Anglie_” for “_regem Anglorum_” and (b) “_postmodum_” added

after “_pontifice_.”

-----

Ego Stephanus Dei gratia, assensu cleri et populi in regem Anglie

electus, et a Willelmo Cantuariensi archiepiscopo et sancte Romane

ecclesie legato consecratus, et ab Innocentio sancte romane sedis

pontifice postmodum confirmatus, respectu et amore Dei sanctam ecclesiam

liberam esse concedo, et debitam reverentiam illi confirmo. Nichil me in

ecclesia vel rebus ecclesiasticis simoniace acturum vel permissurum esse

promitto. Ecclesiasticarum personarum et omnium clericorum et rerum

eorum justiciam et potestatem et distributionem honorum ecclesiasticorum

in manu episcoporum esse perhibeo et confirmo. Dignitates ecclesiarum

privilegiis earum confirmatas et consuetudines earum antiquo tenore

habitas inviolate manere statuo et concedo. Omnes ecclesiarum

possessiones et tenuras, quas die illa habuerunt qua Willelmus rex avus

meus fuit vivus et mortuus, sine omni calumpniantium reclamatione, eis

liberas et absolutas esse concedo. Si quid vero de habitis vel possessis

ante mortem ejusdem regis quibus modo careat, ecclesia deinceps

repetierit, indulgentie et dispensationi mee vel restituendum vel

discutiendum reservo. Quecunque vero post mortem ipsius regis

liberalitate regum vel largitione principum, oblatione vel comparatione,

vel qualibet transmutatione fidelium eis collata sunt, confirmo. Pacem

et justiciam me in omnibus facturum et pro posse meo conservaturum eis

promitto.

Forestas quas Willelmus avus meus et Willelmus avunculus meus

instituerunt et habuerunt mihi reservo. Ceteras omnes quas rex Henricus

superaddidit, ecclesiis et regno quietas reddo et concedo.

Si quis episcopus vel abbas vel alia ecclesiastica persona ante mortem

suam rationabiliter sua distribuerit vel distribuenda statuerit, firmum

manere concedo. Si vero morte preoccupatus fuerit, pro salute anime

ejus, ecclesie consilio, eadem fiat distributio. Dum vero sedes propriis

pastoribus vacue fuerint, ipsas et earum possessiones omnes in manu et

custodia clericorum vel proborum hominum ejusdem ecclesie committam,

donec pastor canonice substituatur.

Omnes exactiones et injusticias et mescheningas sive per vicecomites vel

per alios quoslibet male inductas funditus exstirpo. Bonas leges et

antiquas et justas consuetudines in murdris et placitis et aliis causis

observabo et observari precipio et constituo. Hec omnia concedo et

confirmo, salva regia et justa dignitate mea.

Testibus Willelmo Cantuariensi archiepiscopo, et Hugone Rothomagensi

archiepiscopo, et Henrico Wintoniensi episcopo, et Rogero Saresberiensi

episcopo, et Alexandro Lincolniensi episcopo, et Nigello Eliensi

episcopo, et Evrardo Norwicensi episcopo, et Simone Wigorniensi

episcopo, et Bernardo episcopo de S. Davide, et Audoeno Ebroicensi

episcopo, et Ricardo Abrincensi episcopo, et Roberto Herefordiensi

episcopo, et Johanne Rovecestriensi episcopo, et Athelulfo Carlolensi

episcopo, et Rogero cancellario, et Henrico nepote Regis, et Roberto

comite Gloecestrie, et Willelmo comite de Warenna, et Rannulfo comite

Cestrie, et Roberto comite de Warewic., et Roberto de Ver., et Milone de

Glocestria, et Brientio filio Comitis, et Roberto de Oilly conestabulis,

et Willelmo Martello, et Hugone Bigot, et Hunfredo de Buhun, et Simone

de Belcamp dapiferis, et Willelmo de Albiniaco, et Eudone Martello

pincernis, et Roberto de Ferreriis, et Willelmo Pevrello de Notingeham,

et Simone de Saintliz, et Willelmo de Albamarla, et Pagano filio

Johannis, et Hamone de Sancto Claro, et liberto de Laceio. Apud

Oxeneford. Anno ab incarnatione Domini M.C. XXXVI., set regni mei primo.

III. CHARTER OF HENRY II.[1096]

(CIRCA 1154.)

Henricus Dei gracia rex anglie, dux Normannie et Aquitanie, et comes

Andegavie, omnibus comitibus, baronibus et fidelibus suis Francis et

Anglicis, salutem. Sciatis me, ad honorem Dei et sancte Ecclesie, et pro

communi emendacione tocius regni mei, concessisse et reddidisse et

presenti carta mea confirmasse Deo et sancte ecclesie et omnibus

comitibus et baronibus et omnibus hominibus meis omnes concessiones et

donaciones et libertates et liberas consuetudines, quas rex Henricus

avus meus eis dedit et concessit. Similiter eciam omnes malas

consuetudines, quas ipse delevit et remisit, ego remitto et deleri

concedo pro me et heredibus meis. Quare volo et firmiter precipio quod

sancta ecclesia et omnes comites et barones et omnes mei homines omnes

illas consuetudines et donaciones et libertates et liberas consuetudines

habeant et teneant libere et quiete, bene et in pace et integre, de me

et heredibus meis, sibi et heredibus suis, adeo libere et quiete et

plenarie in omnibus, sicut rex Henricus avus meus eis dedit et

concessit, et carta sua confirmavit. Teste Ricardo de Luci apud

Westmonasterium.

-----

Footnote 1096:

The text is taken from that given in _Statutes of the Realm_, I. 4,

which is founded on a copy of the original preserved in the British

Museum (Cotton, Claudius D. II., _folio_ 107). Cf. Bémont, _Chartes_,

12–14.

-----

IV. THE SO-CALLED "UNKNOWN CHARTER OF

LIBERTIES" OF JOHN[1097]

-----

Footnote 1097:

See _supra_, pp. 202-5 and Index. The text is founded upon that

published by Mr. J. H. Round in the _English Historical Review_, VIII.

288, but effect has been given to most of the emendations suggested by

Mr. Hubert Hall and Mr. G. W. Prothero. Cf. _Ibid._, IX. 117 and 326.

The copy in the French Archives follows, on the same parchment, a copy

of the Charter of Liberties of Henry I. from which it is separated by

the following words (indicating the nature of both documents, the one

that had gone before and the other that was to follow): “Hec est Carta

Regis Henrici per quam barones querunt libertates et hec consequentia

concedit Rex Johannes.” Then follow twelve clauses which are here

numbered for convenience of reference, although no numbers appear in

the copy.

-----

(WHICH MAY, PERHAPS, BE IDENTIFIED WITH THE

SCHEDULE OF 27TH APRIL, 1215).

1. Concedit Rex Johannes quod non capiet hominem absque judicio, nec

aliquid accipiet pro justitia, nec injustitiam faciet.

2. Et si contingat quod meus baro vel homo meus moriatur et haeres suus

sit in aetate, terram suam debeo ei reddere per rectum releveium absque

magis capiendi.

3. Et si ita sit quod haeres sit infra aetatem, debeo iiij^{or}

militibus de legalioribus feodi terram bajulare in custodia, et illi cum

meo famulo debent mihi reddere exitus terrae sine venditione nemorum et

sine redemptione hominum et sine destructione parci et vivarii; et tunc

quando ille haeres erit in aetate terram ei reddam quietam.

4. Si foemina sit haeres terrae, debeo eam maritare, consilio generis

sui, ita non sit disparagiata. Et si una vice eam dedero, amplius eam

dare non possum, sed se maritabit ad libitum suum, sed non inimicis

meis.

5. Si contingat quod baro aut homo meus moriatur, concedo ut pecunia sua

dividatur sicut ipse diviserit; et si praeoccupatus fuerit aut armis aut

infirmitate improvisa, uxor ejus, aut liberi, aut parentes et amici

propinquiores pro ejus anima dividant.

6. Et uxor ejus non abibit de hospitio infra XL. dies et donec dotem

suam decenter habuerit, et maritagium habebit.

7. Adhuc hominibus meis concedo ne eant in exercitu extra Angliam nisi

in Normanniam et in Britanniam et hoc decenter; quod si aliquis debet

inde servitium decem militum, consilio baronum meorum alleviabitur.

8. Et si scutagium evenerit in terra, una marca argenti capietur de

feodi militis; et si gravamen exercitus contigerit, amplius caperetur

consilio baronum regni.

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

afforestaverimus, deafforesto.

10. Adhuc concedo ut milites qui in antiquis forestis meis suum nemus

habent, habeant nemus amodo ad herbergagia sua et ad ardendum; et

habeant foresterium suum; et ego tantum modo unum qui servet pecudes

meas.

11. Et si aliquis hominum meorum moriatur qui Judaeis debeat, debitum

non usurabit quamdiu haeres ejus sit infra aetatem.

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

V. THE ARTICLES OF THE BARONS.[1098]

(1215.)

-----

Footnote 1098:

The text is taken from that of the _Statutes of the Realm_, I. 7-8,

which is founded on the original in the British Museum. See _supra_,

200–202. Cf. Bémont, _Chartes_, 15–23.

-----

_Ista sunt Capitula que Barones petunt et dominus Rex concedit._

1. Post decessum antecessorum heredes plene etatis habebunt hereditatem

suam per antiquum relevium exprimendum in carta.

2. Heredes qui infra etatem sunt et fuerint in custodia, cum ad etatem

pervenerint, habebunt hereditatem suam sine relevio et fine.

3. Custos terre heredis capiet rationabiles exitus, consuetudines, et

servitia, sine destructione et vasto hominum et rerum suarum, et si

custos terre fecerit destructionem et vastum, amittat custodiam; et

custos sustentabit domos, parcos, vivaria, stagna, molendina et cetera

ad terram illam pertinentia, de exitibus terre ejusdem; et ut heredes

ita maritentur ne disparagentur et per consilium propinquorum de

consanguinitate sua.

4. Ne vidua det aliquid pro dote sua, vel maritagio, post decessum

mariti sui, sed maneat in domo sua per .xl. dies post mortem ipsius, et

infra terminum illum assignetur ei dos; et maritagium statim habeat et

hereditatem suam.

5. Rex vel ballivus non saisiet terram aliquam pro debito dum catalla

debitoris sufficiunt; nec plegii debitoris distringantur, dum capitalis

debitor sufficit ad solutionem; si vero capitalis debitor defecerit in

solutione, si plegii voluerint, habeant terras debitoris, donec debitum

illud persolvatur plene, nisi capitalis debitor monstrare poterit se

esse inde quietum erga plegios.

6. Rex non concedet alicui baroni quod capiat auxilium de liberis

hominibus suis, nisi ad corpus suum redimendum, et ad faciendum

primogenitum filium suum militem, et ad primogenitam filiam suam semel

maritandam, et hoc faciet per rationabile auxilium.

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

8. Ut communia placita non sequantur curiam domini regis, sed

assignentur in aliquo certo loco; et ut recognitiones capiantur in

eisdem comitatibus, in hunc modum: ut rex mittat duos justiciaros per

.iiii^{or}. vices in anno, qui cum .iiii^{or}. militibus ejusdem

comitatus electis per comitatum, capiant assisas de nova dissaisina,

morte antecessoris, et ultima presentatione, nec aliquis ob hoc sit

summonitus nisi juratores et due partes.

9. Ut liber homo amercietur pro parvo delicto secundum modum delicti,

et, pro magno delicto, secundum magnitudinem, delicti, salvo

continemento suo; villanus etiam eodem modo amercietur, salvo waynagio

suo; et mercator eodem modo, salva marcandisa, per sacramentum proborum

hominum de visneto.

10. Ut clericus amercietur de laico feodo suo secundum modum aliorum

predictorum, et non secundum beneficium ecclesiasticum.

11. Ne aliqua villa amercietur pro pontibus faciendis ad riparias, nisi

ubi de jure antiquitus esse solebant.

12. Ut mensura vini, bladi, et latitudines pannorum et rerum aliarum,

emendetur; et ita de ponderibus.

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

et similiter de aliis assisis.

14. Ut nullus vicecomes intromittat se de placitis ad coronam

pertinentibus sine coronatoribus; et ut comitatus et hundredi sint ad

antiquas firmas absque nullo incremento, exceptis dominicis maneriis

regis.

15. Si aliquis tenens de rege moriatur, licebit vicecomiti vel alii

ballivo regis seisire et imbreviare catallum ipsius per visum legalium

hominum, ita tamen quod nichil inde amoveatur, donec plenius sciatur si

debeat aliquod liquidum debitum domino regi, et tunc debitum regis

persolvatur; residuum vero relinquatur executoribus ad faciendum

testamentum defuncti; et si nichil regi debetur, omnia catalla cedant

defuncto.

16. Si aliquis liber homo intestatus decesserit, bona sua per manum

proximorum parentum suorum et amicorum et per visum ecclesie

distribuantur.

17. Ne vidue distringantur ad se maritandum, dum voluerint sine marito

vivere, ita tamen quod securitatem facient quod non maritabunt se sine

assensu regis, si de rege teneant, vel dominorum suorum de quibus

tenent.

18. Ne constabularius vel alius ballivus capiat blada vel alia catalla,

nisi statim denarios inde reddat, nisi respectum habere possit de

voluntate venditoris.

19. Ne constabularius possit distringere aliquem militem ad dandum

denarios pro custodia castri, si voluerit facere custodiam illam in

propria persona vel per alium probum hominem, si ipse eam facere non

possit per rationabilem causam; et si rex eum duxerit in exercitum, sit

quietus de custodia secundum quantitatem temporis.

20. Ne vicecomes, vel ballivus regis, vel aliquis alius, capiat equos

vel carettas alicujus liberi hominis pro cariagio faciendo, nisi ex

voluntate ipsius.

21. Ne rex vel ballivus suus capiat alienum boscum ad castra vel ad alia

agenda sua, nisi per voluntatem ipsius cujus boscus ille fuerit.

22. Ne rex teneat terram eorum qui fuerint convicti de felonia, nisi per

unum annum et unum diem, sed tunc reddatur domino feodi.

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

et per totam Angliam.

24. Ne breve quod vocatur “Precipe” de cetero fiat alicui de aliquo

tenemento unde liber homo amittat curiam suam.

25. Si quis fuerit disseisitus vel prolongatus per regem sine juditio de

terris, libertatibus, et jure suo, statim ei restituatur; et si

contentio super hoc orta fuerit, tunc inde disponatur per juditium .xxv.

baronum, et ut illi qui fuerint dissaisiti per patrem vel fratrem regis,

rectum habeant sine dilatione per juditium parium suorum in curia regis;

et si rex debeat habere terminum aliorum cruce signatorum, tunc

archiepiscopus et episcopi faciant inde juditium ad certum diem,

appellatione remota.

26. Ne aliquid detur pro brevi inquisitionis de vita vel membris, sed

libere concedatur sine pretio et non negetur.

27. Si aliquis tenet de rege per feodi firmam, per sokagium, vel per

burgagium, et de alio per servitium militis, dominus rex non habebit

custodiam militum de feodo alterius, occasione burgagii vel sokagii, nec

debet habere custodiam burgagii, sokagii, vel feodi firme; et quod liber

homo non amittat militiam suam occasione parvarum sergantisarum, sicuti

de illis qui tenent aliquod tenementum reddendo inde cuttellos vel

sagittas vel hujusmodi.

28. Ne aliquis ballivus possit ponere aliquem ad legem simplici loquela

sua sine testibus fidelibus.

29. Ne corpus liberi hominis capiatur, nec imprisonetur, nec

dissaisietur, nec utlagetur, nec exuletur, nec aliquo modo destruatur,

nec rex eat vel mittat super eum vi, nisi per juditium parium suorum vel

per legem terre.

30. Ne jus vendatur vel differratur vel vetitum sit.

31. Quod mercatores habeant salvum ire et venire ad emendum vel

vendendum, sine omnibus malis toltis, per antiquas et rectas

consuetudines.

32. Ne scutagium vel auxilium ponatur in regno, nisi per commune

consilium regni, nisi ad corpus regis redimendum, et primogenitum filium

suum militem faciendum, et filiam suam primogenitam semel maritandam; et

ad hoc fiat rationabile auxilium. Simili modo fiat de taillagiis et

auxiliis de civitate Londonie, et de aliis civitatibus que inde habent

libertates, et ut civitas Londonie plene habeat antiquas libertates et

liberas consuetudines suas, tam per aquas, quam per terras.

33. Ut liceat unicuique exire de regno et redire, salva fide domini

regis, nisi tempore werre per aliquod breve tempus propter communem

utilitatem regni.

34. Si quis mutuo aliquid acceperit a Judeis plus vel minus, et moriatur

antequam debitum illud solvatur, debitum non usurabit quamdiu heres

fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit

in manum regis, rex non capiet nisi catallum quod continetur in carta.

35. Si quis moriatur et debitum debeat Judeis, uxor ejus habeat dotem

suam; et si liberi remanserint, provideantur eis necessaria secundum

tenementum; et de residuo solvatur debitum salvo servitio dominorum;

simili modo fiat de aliis debitis; et ut custos terre reddat heredi, cum

ad plenam etatem pervenerit, terram suam instauratam secundum quod

rationabiliter poterit sustinere de exitibus terre ejusdem de carucis et

wainnagiis.

36. Si quis tenuerit de aliqua eskaeta, sicut de honore Walingeford,

Notingeham, Bononie, et Lankastrie, et de aliis eskaetis que sunt in

manu regis et sunt baronie, et obierit, heres ejus non dabit aliud

relevium, vel faciet regi aliud servitium quam faceret baroni; et ut rex

eodem modo eam teneat quo baro eam tenuit.

37. Ut fines qui facti sunt pro dotibus, maritagiis, hereditatibus, et

amerciamentis, injuste et contra legem terre, omnino condonentur; vel

fiat inde per juditium, .xxv. baronum, vel per juditium majoris partis

eorumdem, una cum archiepiscopo et aliis quos secum vocare voluerit ita

quod, si aliquis vel aliqui de .xxv. fuerint in simili querela,

amoveantur et alii loco illorum per residuos de .xxv. substituantur.

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

securitatem.

39. Ut illi qui fuerint extra forestam non veniant coram justiciariis de

foresta per communes summonitiones, nisi sint in placito vel plegii

fuerint; et ut prave consuetudines de forestis et de forestariis, et

warenniis, et vicecomitibus, et rivariis, emendentur per .xii. milites

de quolibet comitatu, qui debent eligi per probos homines ejusdem

comitatus.

40. Ut rex amoveat penitus de balliva parentes et totam sequelam Gerardi

de Atyes, quod de cetero balliam non habeant, scilicet Engelardum,

Andream, Petrum, et Gyonem de Cancellis, Gyonem de Cygony, Matheum de

Martiny, et fratres ejus; et Galfridum nepotem ejus et Philippum Mark.

41. Et ut rex amoveat alienigenas, milites, stipendiarios, balistarios,

et ruttarios, et servientes qui veniunt cum equis et armis ad nocumentum

regni.

42. Ut rex faciat justiciarios, constabularios, vicecomites, et

ballivos, de talibus qui sciant legem terre et eam bene velint

observare.

43. Ut barones qui fundaverunt abbatias, unde habent cartas regum vel

antiquam tenuram, habeant custodiam earum cum vacaverint.