Front Page Titles (by Subject) 1.: The Ancient Constitution in Medieval England (J.C. Holt) - The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law
Return to Title Page for The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
1.: The Ancient Constitution in Medieval England (J.C. Holt) - Ellis Sandoz, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law 
The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, edited and with an Introduction by Ellis Sandoz (Indianapolis: Liberty Fund, 2008).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc. except for the translations into English of Fortescue made by S.B. Chrimes which is held by Cambridge University Press 1942.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Ancient Constitution in Medieval England
Was there an ancient constitution? The answer is “no.” It is and was a figment. Professor J. G. A. Pocock agrees as much:
It may be conceded here that the term “constitution,” as used throughout this book, has not been systematically cleared of anachronism. There will have been a time when it was more usual to speak of “the laws” as “ancient,” after which a practice of speaking about “the constitution of government” became one of using “constitution” and “government” as interchangeable terms, hardening finally into the more modern practice in which “the constitution” (unwritten rather than written) could be spoken of as “ancient.” The chronology of such a process has not been attempted here.1
But a preliminary shy is easy enough: the Oxford English Dictionary can provide as strong a dose of skepticism for the modern historian as Ducange does for the medieval. The first example it gives of the use of the word referring to “the mode in which a state is constituted” is from 1610 and comes from Bishop Hall’s Apology against the Brownists; it refers to Israel, not England;2 the second is from Clarendon in 1647.3 As for “the fundamental constitution of the kingdom,” much closer to our “ancient constitution,” that comes from Scotland in 1689.4 Sir Edward Coke, it should be noted, did not use the term in this sense.
So in seeking the element of ancient precedent in Coke’s arguments and assumptions and in those of other antiquaries and lawyers of the sixteenth and seventeenth centuries we shall be looking for something else. And the word itself points to the route we must follow, for it leads us immediately into the realm of authority—“a decree, ordinance, law, regulation; usually one made by a superior authority, civil or ecclesiastical, especially in Roman Law an enactment of the Emperor”; the earliest authority quoted in the Dictionary is none other than Wycliff.5 So constitutions had an ordaining constitutive ring to them. This was still so in the sixteenth and seventeenth centuries as the newer prescriptive sense was added to the word.6 If then in the ancient constitution we are pursuing an anachronism it is ours, not Coke’s or Selden’s.
How it came about that the word constitution acquired this new prescriptive sense in the course of the seventeenth century and—a more interesting matter—how it was that Coke, Selden, and other lawyers and antiquaries of the early seventeenth century did not themselves resort to it, are questions I leave to others.7 I am concerned rather with the ideas and assumptions which they inherited from an earlier period, with the material and building blocks which lay to their hand at the end of the Middle Ages for the fashioning of their own scheme of things. That seems simple. Yet it is not so, for the medieval material embodies a blend of law and legend, fact and fiction, statute, its interpretation and misinterpretation, similar to that which modern scholarship has exposed in the seventeenth century. The matter is important. For one thing we need to decide when and how, within what sort of intellectual framework, we can assert that a statute, or indeed anything else, was “misinterpreted.” For another, until the medieval foundations are properly delineated, the seventeenth-century super-structure cannot be accurately drawn or its novelty properly assessed. Such an assessment has been based only too frequently on ignorance of much that happened before 1500. It was not an error of which Coke or Selden was guilty.
Yet what they knew and absorbed from the past was of varying authenticity. In reexamining it, uncertainties, dilemmas, and questions, like those raised by the history of the word constitution sketched above, are ever present. One last illustration may be added—the constitutions of Clarendon of 1164. This, too, is noted in the Oxford English Dictionary, but it was not a contemporary title. It seems to be derived from a marginal entry in the earliest known manuscript version written in 1176. These “constitutions” were in fact a “record” and “recognition” made in the presence of the king of the “customs, liberties and dignities” enjoyed by his ancestors. Throughout the document “customs,” consuetudines, and dignitates, not “constitutions,” are the dominant words.8 The decrees which Henry II imposed on the English church in 1169 were a different matter. These were “constitutions” properly speaking and were so described.9 Such usage was considered and deliberate. When, seven years later, the marginal scribe referred to the customs declared in 1164 as constitutions, he was tarring them with the brush of authoritarian novelty. The stain has faded partly because we have lost the verbal precision of his age and with it his intent. Henry II himself gave the consuetudines of 1164 an extra ring of authority after they had been promulgated. In the 1169 decrees they appear as statuta de Clarendune and statuta regni.10 Customs, once agreed, recorded, and promulgated, acquired force as statute.
Language matters. We have to puzzle out what it means and meant. More important, our materials are the work of men who were themselves puzzling it out, using it to fit context and circumstance, to convey intentions and impressions, to define, to stake out claims, to defeat and counter arguments. Language enhanced disputes; one man’s auxilium was another’s tallagium. Above all language was malleable. It demanded interpretation and reinterpretation. It allowed misinterpretation. It lasted. It is this world that we enter with Magna Carta.
In Magna Carta, also, the language is deliberate and precise. The so-called Articles of the Barons, the armistice agreement as it were, comprised capitula which embodied conventiones; they were Heads of Proposals, to borrow a phrase from a later political crisis. The intention in 1215 was to bring to an end a state of civil war. The capitula were therefore also articles of peace, articuli pacis. And they contained customs, consuetudines.11 But the context was different from that of 1164. In the Articles it is not customs but the keeping of the peace and liberties between the king and the realm which is guaranteed by the form of security.12 And in Magna Carta, even more, it is liberties, not customs, that are predominant. The Charter was a Charter of Liberties in strict contemporary parlance: in the treaty between King John and the barons concerning the custody of London,13 and in the Letters Testimonial in which Archbishop Stephen Langton and the bishops certified the text of the “charter of liberty of Holy Church and of the liberties and free customs” which King John had conceded.14 It was thus that it was seen by the magnates and the bishops. So also was it described by the officials of King John.15
At this point the word consuetudo demands further comment. In its prime sense it did not necessarily denote antiquity, still less unwritten, ancient law. It was used rather to describe the jurisdictional, legal, and financial relationships between lord and vassal. Customs, in this sense, could be either good or bad, ancient or novel, unwritten or newly promulgated. But they were, or were to be, habitual practice—the classical sense of the word tended always to drive them in that direction.16 It is from this generalized sense that the constitutions of Clarendon and Magna Carta diverged, the constitutions toward the royal dignities enjoyed by King Henry’s ancestors, the Charter toward the liberties which it itself conveyed. The consuetudines of 1164 are associated with dignitates;17 those of 1215 with libertates. Indeed consuetudines scarcely appear in the documents of 1215 except in association with liberties or when qualified by “free.” Only once, in confirming the privileges of the Londoners, is the word associated with antiquity.18 Only once, in condemning the conduct of foresters and other officials is it qualified as evil,19 this a timely reminder that the prime, generalized sense of the word had not been lost or entirely overlain. Throughout, therefore, customs are subsidiary to liberties. Indeed they are being established and conveyed as liberties. They figure because the liberties concern practices which were commonly described as consuetudines. This was no linguistic aberration induced by political crisis. The same emphasis on liberties and the same subordination of customs to liberties is apparent in the reissues of Magna Carta in 1216, 1217, and 1225, in the Charter of the Forest of 1217 and 1225, and in the parva carta of 1237, which brought the series to an end.20
These were official documents; the emphasis reflected curial attitudes as well as the minds of barons and bishops. No one could have argued in 1215 or even in 1217 that the charters were no more than a definition of ancient custom. Of course, precedent mattered. Existing procedures, long-established principles, or ancient liberties certainly underlay particular chapters.21 The movement against King John had begun with a cry for the confirmation of the Charter of Liberties of Henry I and the restoration of the laws of Edward the Confessor. A distorted, idealized past was fabricated to set against alleged present ills; and to this we shall return, for ancient custom was part of the argument and well worth having on your side. But it cut both ways. The commissioners appointed by Pope Innocent III to impose his settlement of the dispute—Peter des Roches, bishop of Winchester; Simon, abbot of Reading; and the papal “familiar” Pandulf—in their letters of September 5, 1215, in which they denounced the king’s opponents asserted, “The dignity of the king has been filched, since they grant out land, a thing unheard of, and nullify the approved customs of the realm, and establish new laws, and destroy or alter all that has been prudently ordained by the King their lord with the advice of the magnates who were then his familiars—they have gone as far as they could in despoiling the King of his royal dignity.”22 For them approved customs and royal dignity went hand in hand, just as they had for Henry II in 1164. So, whatever the pretenses from whichever party in the dispute, no one could seriously maintain that the concessions of 1215 were validated by substantive coincidence with ancient custom. Validation came, not from substance, but from procedure and form: from the personal oath of the king that he would abide by the terms agreed, by similar oaths of those present at Runnymede and of men throughout the land, oaths to terms embodied in exemplars of the newly issued charter, each under the great seal. And the crucial attack on the agreement in the papal bull of annulment was that the oath had been exacted by compulsion and that the charter was therefore null and void.23 That verdict was reversed when the papal legate, Guala, set his seal to the reissues of 1216 and 1217, but the threat to the charters’ validity remained until in the parva carta of 1237 Henry III confirmed them for the first time in full majority. This success story owed something to luck, to Henry’s minority, and to the complexities of papal diplomacy.24 No matter. By design or accident, a conveyance of liberties was brought to the forefront of public life.
It is worth dwelling for a moment on why the settlement took this form. It had to. It could not be embodied in a treaty because king and vassals were not on a par. It was only as warring parties that they could treat as equals; to do that would be to admit the compulsion which lay behind the settlement and lay it open to annulment. It could not take the form of a simple statement of consuetudines because other matters, the restoration of hostages and the reversal of unjust judgments, for example, were included. In any case how could the king be bound except by oath and solemn concession made in as near a standard form as the circumstances allowed? And how were liberties usually conveyed publicly and permanently unless by charter? Such considerations left any other solution unthinkable. A charter, whether confirming the earlier grant of Henry I or in some new form, was envisaged at the start of and throughout the crisis. There was no alternative: a charter it had to be. But if men turned to the charter as the only vehicle available, it was not necessarily going to be the most convenient in the long run. It was bound to be restricted to well-worn tracks. Charters provided validation, certainly, but they also brought complications and imposed conditions of their own.
A charter was freely given. It could not be otherwise. Magna Carta was granted “from reverence for God and for the salvation of our soul and those of all our ancestors and heirs, for the honour of God and the exaltation of Holy Church and the reform of our realm”; spontanea et bona voluntate nostra was added for the first time in 1225 because by then the young King Henry could be said to have a will of his own. It was a royal act. It followed that the liberties conceded derived from the crown. They could be corroborated only by reissues or further confirmations, by measures which themselves reiterated the crown’s authority. So the beneficiaries of 1215 were locked into a circular logic which was not broken by the humiliating circumstances which forced King John to the first great surrender and his successors from time to time to renewed acts of contrition. Royal authority may have seemed to be diminished by a confirmation of the charters, but it was also exercised. The ultimate validation of the Great Charter was the Great Seal, nothing else, and that bore the impression of the king in majesty. There was no escaping that.
Nevertheless men tried. Already in 1215 the king’s opponents claimed the moral high ground for themselves. The Charter specified that dispossessions had occurred without lawful judgment of peers, that fines had been agreed and penalties imposed unjustly and contrary to the law of the land.25 What the Charter granted to the free-men of the land were not just consuetudines or even liberties, but rights or laws, jura.26 This was rhetoric, and not less so because it was drawn from the common distinction between law and will. By itself it did not cut a lot of ice.
However, it was linked to a more practical tactic of external compulsion. By his submission to Pope Innocent III in 1213 King John became a feodatarius.27 This opened the traditional action of tolt to the court of a feudal superior. Both the king and his opponents used it in 1215. In the end the process gave the reissues of 1216 and 1217 the seal of papal approval but not a lot besides. From 1225, to be sure, the charters were reinforced by sentences of excommunication against infringers. But the sentences were the work of archbishops and bishops themselves vulnerable as tenants-in-chief of the crown; the popes almost always backed the king. Episcopal insistence on the charters was far from disinterested. It was aimed at extending the privileges of the anglicana ecclesia confirmed in general in chapter 1; this provoked baronial as well as royal resistance. The king was careful to except royal rights and exclude new ecclesiastical pretensions from the traditional confirmations and the associated sentences of excommunication. In any case such sentences required the secular arm and ultimately royal approval to become effective.28 Indeed the best known of such sentences, the sententia lata of 1253, was promulgated with the consent of king and magnates.29 So this route led through a tangled undergrowth of conflicting interests and attitudes to a dead end guarded once more by royal authority.
There were vociferous demands and demonstrations along the way. Reinforce the charters by the threat of excommunication; promulgate the penalty in the most solemn assemblies of king, bishops, and nobles, as in 1237 and 1253; reinforce the threat by papal confirmation, as in 1245 and 1256, have both charters and sentence published in Latin, French, and English as in 1253, or read twice a year in cathedral churches as in 1297; display the Charter of Liberties in church, renewing it annually at Easter, as Archbishop Pecham laid down in 1279; embrace the king himself within the sentence of excommunication, as Archbishop Boniface did by implication in 1234. To modern eyes it is all repetitive and futile. In reality it was a prolonged attempt to bring the enforcement of the Charter within the range of canon law, to attach the ecclesiastical penalties for breach of faith to infringements of promises made “for reverence for God,” as the Charter put it, promises repeatedly reinforced by the most solemn oaths to observe and execute the Charter’s terms. This was perhaps the best the thirteenth century could do to introduce some countervailing force to royal authority. But the crown remained resilient, its authority unimpaired. These ritual occasions were as evanescent as party conventions. All they left in the end was the sententia lata embedded, apparently so incongruously, in the manuscript collections of statutes of the late thirteenth and early fourteenth centuries and subsequently in the Statutes of the Realm. But at the time the effort must have seemed worthwhile. To “liberal” bishops, to some of the barons, certainly to the chronicler Matthew Paris, each royal renewal of the oath to the Charter, each promulgation of the sentence, must have seemed a signal achievement, a triumph, yet one more step on the road to an enlightened society governed by royal self-control. It all helped to keep the Charter alive. And it spread knowledge of it wide within and outside the church. Bishop Grosseteste of Lincoln returned home from the great council of 1253 and promptly ordered that the sentence should be promulgated in every church in his diocese.30 The sententia lata was entered immediately following the Charter of the Forest in various editions of the Sherwood Forest Book.31 To this day the fourteenth-century graffiti in Ashwell (Herts) parish church include the inscription, now very faint, anglicana ecclesia libera sit.32
Yet this is not the whole story. The charters were not just expressions of royal authority. Certainly, such liberties were derived from royal concession and nowhere else. But the king had conceded them. Moreover he had conceded them in a form which located them squarely within contemporary conveyancing. This prosaic, everyday mold was essential; it provided authenticity; anything else risked challenge or annulment. The Charter of 1215 followed the strict letter of such a grant: “We have also granted to all the free men of our realm for ourselves and our heirs for ever, all the liberties written below, to have and to hold, them and their heirs from us and our heirs.” This formula was largely repeated in the reissues culminating in 1225, although not in the Charter of the Forest. Still in the thirteenth century men were conscious enough of the importance of livery of seisin and aware that no grant was so secure that it did not benefit from repeated confirmation by the grantor and his successors and from corroboration by a superior lord and other interested parties. In the case of the charters this need was met by the repeated reissues, confirmations, oaths of observance, and threat of ecclesiastical penalties. But conveyancing had moved far beyond the primitive notion that rights conveyed reverted to the lord on the death of the recipient or that homage rendered should be renewed on the death of either party. Where in any case in the concessions of 1215–1225 was the element of service which underlay such insecurity? It was there certainly, but in a residual form, in the concession of the fifteenth on moveables in the final clause of the Charters of 1225. Here it was turned to the beneficiaries’ advantage: it was linked to the king’s promise that nothing would be sought that would weaken or infringe the liberties and that if it were it should be counted null and void. It was used to reinforce the certainty and permanence of the transaction. And how could the beneficiary die when defined as all free tenants or everybody in the realm? The answer to both these questions was to lead or drive men to the idea that the liberties were conceded to the regnum.33
But if that was the theory, practice was somewhat different. In the case of a private grant the beneficiary, whether an individual or an institution, retained a charter and/or a letter patent as evidence. There was probably no clear precedent for the grant of 1215. Whether men could discover what had happened in 1100 with the coronation charter of Henry I it is impossible to say; in any case Henry’s charter could well have been despatched to the sheriffs. If precedent there were, it is likely to be found in grants and charters to cities and boroughs, especially to London, where charters recording privileges became part of the community’s archives available for pleadings, confirmations, and other purposes. At all events it seems certain for 1215 and is absolutely certain for 1225 that the charters were sent to the counties, that is to the county courts, and were held there by responsible knights of the shire or were deposited for future reference in some suitable repository. It is reasonable to suppose that it was through such a procedure that an original of 1215 still survives at Lincoln,34 and less certainly at Salisbury.35 Charters of Liberties of 1216 and 1225 and a Charter of the Forest of 1217 still remain at Durham, the center at one and the same time of the bishop’s liberty and the court of the knights of St. Cuthbert.36 A contemporary endorsement establishes that the Charter sent to Wiltshire in 1225 was deposited in Lacock abbey by the knights of the county.37 The copy sent to Buckinghamshire in 1297 remained in the hands of one of the knightly families of this county and Northamptonshire, the Brudenels, whence it was put on the market in 1981, ultimately finding its way to the United States. The best evidence of all comes from Nottinghamshire, where the Sherwood Forest Book of circa 1400 tells us: “the Charter of the Forest is under patent in the hands and custody of Ralph Lord Cromwell junior, and the Charter of Liberties is under patent in the hands and custody of Nicholas of Strelley and the perambulation of Sherwood Forest of the time of King Henry III is under patent in the hands of William Jorse of Burton.”38 This was the third item in the book, following immediately on the Charter of the Forest and the sententia lata. Peter le Neve, who worked on the book in 1700, developed this memorandum further. “Whence it is to be understood,” he noted, “that each county had two custodians of the aforesaid charters and if there is forest in the county another kept that charter.”39 Cumulatively the evidence leaves no real doubt that the responsible beneficiaries of the charters were the suitors of the county court. That is where the charters were available. It was up to the knights of the shire to exploit them.
This opportunity was not entirely novel. In the decade or so before 1215 local communities, including counties, had come to purchase privileges, guaranteed by charter, which gave them some control over the office of sheriff, or the conduct of local government, or complete or partial exemption from the forest law.40 In one instance, Devon in 1214, the knights of the shire fought a determined case before the justices of the bench, claiming that shrieval excesses, as they presented them, in demanding suit of court, were in contravention of the liberty which the king had given them by his charter. Unerringly they put their finger on the crucial point: “the knights came and denied all sursises and defaults and all offences against the crown of the lord king; and they stated that they appeared before [the sheriff] as they ought to do and according to their liberty which the lord king gave them by his charter which they produced in court.”41 They had their charter to hand. Against the rights of the crown they set the liberty granted by the king.
A closely similar argument was presented by the knights of Lincolnshire in 1226. Their action too lay against the sheriff and concerned his demands for suit of court in the wapentake of Ancaster. The liberty alleged in defense was the Charter of Liberties and in particular chapter 35 of the 1225 reissue, which dealt with the session of local courts. The actions of the sheriff, they claimed, were “contrary to their liberty which they ought to have by the charter of the lord king.” This time, however, the argument spread wider. It also concerned suit at the shire court, and here the knights alleged:
The county court of Lincoln always used to sit at intervals of forty days; and the lord king has conceded to all men of his realm their liberties and ancient customs which are in use; and the custom was always such; and this sheriff has fixed the courts contrary to that custom at intervals of five weeks and sometimes less. Moreover the court used to meet for one day only. And because they held the aforesaid liberties through the lord king it did not seem to them that they ought to change the state of the county court without the lord king and the magnates of the realm.42
This brought into the debate the savings clause protecting existing liberties and free customs which had been introduced into the 1225 version of the Charter. And it pointed to the contradictory position into which the crown had got itself: on the one hand the sheriff, seeking to perform his office in holding pleas in shire and wapentake, arguing that his appointment as a sheriff and bailiff of the king was sufficient warrant for his actions; on the other hand the knights, insisting upon and quoting the liberties so recently confirmed. Both sides of the argument stemmed from the king.
However, one side of the argument, the Charter, came direct from the king, while the other side came at one remove, as it were, through the sheriff. This was crucial. It must have been obvious to all that there were grave difficulties in the way of using the charters as a direct counter to the personal actions and immediate policies of the king. The security clause of the 1215 Charter had sought to do just that. It had led the country into civil war and had been abandoned. Further experience soon showed that further pressure in this direction was unlikely to lead to anything more than the charade of a great council, a confirmation of the charters, and a promulgation of ecclesiastical penalties. The charters provided no solution to the problem of how to manage a willful king: hence the increasing interest in schemes for conciliar control. But the charters did provide a splendidly effective weapon against the king’s agents, against the sheriffs especially, and in the case of the Charter of the Forest against the foresters and those responsible for forest perambulations. For, if knights of the shire could not bring an action against the king in his own court for contravention of the charters, they could certainly do so against his local officers. The king, in short, could be put on the spot: which actions did he really intend—those imposed or demanded by his local agents or those conveyed as liberties in the charters? and who held to the better interpretation of those liberties, his local agents or the local knights? These were questions which only the king and his court could answer. In 1226 the knights of Lincolnshire had a sure hold on the point: they were unwilling to alter the state of the county court “without the lord king and the magnates of the realm.”
These issues soon became general. A meeting of representatives from eight counties summoned to Lincoln was prorogued in September 1226. It was followed by a summons of representatives from all except two counties to a meeting at Westminster in October 1227; for this four knights were to be elected in each county to present complaints against their sheriffs “on the articles contained in the charter of liberty.”43 Meanwhile parallel complaints were arising over the execution of the disafforestations envisaged in the Charter of the Forest. By intention or otherwise, chapter 1 of that Charter, which provided for perambulations, was not clearly drafted. Its execution remained a bone of contention between the crown and local communities to the end of the century and beyond.44 In the confusion of the second round of perambulations of 1225 some of the great northern lords retained what the crown abandoned. The knights of Westmorland made plaint against William of Lancaster, lord of Kendal, that he had kept some woods and moors afforested “to the damage of the knights and other honest men of the neighbourhood”; similar complaints were brought in Westmorland, Lancashire, and Yorkshire against Robert de Vieuxpont, William de Warenne, earl of Surrey, John de Lacy, constable of Chester, and Robert Grelley. Three of these had participated in the rebellion of 1215; one, John de Lacy, had been a member of the Twenty Five. The plaint against them was based on the final chapter of the Forest Charter, which laid down that all those who received these liberties from the king were to grant the same to their men.45 Both the forests and county administration required royal action. Henry intervened in each case to emphasize the principle laid down in all versions of both charters that what the king was granting to his men they were to grant to theirs. Moreover in letters of August and October 1234 he addressed the specific point raised by the knights of Lincolnshire and gave rulings on the session of local courts. The second of these was drafted after chapter 35 had been read before archbishops, bishops, earls, and barons and was based on their advice. It was annotated in the Close Roll—“concerning the interpretation of a clause contained in the liberties, how it ought to be understood.”46 But royal intervention did not solve these problems. In Lincolnshire, Bishop Grosseteste subsequently intervened, yet again, in support of the knights; throughout the shires both local government and the extent of the forests remained raw issues.47
Nothing in all these arguments and events should be read with an eye on the future. Men were quite accustomed to making and receiving grants of liberties. They were used to confirming them or to demanding their renewal. In the ordinary course of events such grants were marked by some form of livery or were corroborated on oath. No one was surprised when liberties had to be sustained or defended in the courts. Men accepted that they might have to resort to passive resistance or even to private warfare in defending their rights. It was perhaps only in its universality, as a grant to all in the land, that the Charter of Liberties would have seemed at all novel to the casual observer of the political scene in the 1220s and 1230s. And liberties wore old, became meaningless, and were forgotten. Already by the middle years of the century men were turning to other political remedies for their ills—conciliar control at the center, election of local officials in the provinces—and these too had an earlier history going back before 1215.48 So it would have been difficult for such an observer to predict that the charters would be extraordinarily durable. Where, after all, was the Charter of Henry I?
Yet there were signs: two indications perhaps that the charters were unusual. First, they were granted in perpetuum. This insistence on perpetuity was included in all versions and reissues of both charters. Now a grant in perpetuity was unusual between laymen. To go beyond a transfer from a donor and his heirs to a recipient and his heirs was unnecessary and seemingly nonsensical. Nevertheless, a layman might occasionally make a grant in perpetuity to another, especially when it took the form of a sale or quitclaim. Moreover in perpetuum became pervasive in the warranty clauses which were common in conveyances of the thirteenth century. The words also occur occasionally in charters granted to lay communities or to boroughs, especially where free borough status or the borough farm was concerned, and in grants of markets and fairs. Perpetuity is likewise the term in almost all charters of disafforestation and in the much rarer grants of jurisdictional or administrative privileges to local communities, counties, or county subdivisions. But the most generalized, and most probably the first, use of the words was in grants in free and perpetual alms to monasteries and other ecclesiastical bodies. More immediately in 1215 there was a precedent in King John’s grant of freedom of election to the church of November 21, 1214. This too was to be enjoyed in perpetuum.49 From there the phrase was transferred into the Charter of 1215 where it was first deployed to protect the liberties of the church, with special reference to freedom of election. But it was not restricted to that. The phrase was reintroduced into the usual formulas of a gift from grantor and heirs to recipients and heirs which prefaced the whole of the remainder of the Charter. All the liberties conceded were to be held forever. By 1217 the phrase was so distanced from its origin that it was now introduced into the Charter of the Forest. All these concessions too were to be held forever. With the reissues of 1225 the words were embedded in the received text of both charters. Not even King Stephen had conceded as much.
There is no need to attribute personal responsibility for the intrusion of these words into the charters. After all they were common enough. And they were not yet the source of any precise political theory, although the occasional use of finabiliter rather than in perpetuum in grants between individuals suggests that the incongruity of perpetuity in such a context might well have been appreciated. No one as yet was arguing that the charters were irrepealable fundamental statute, although clearly the words conceded that the liberties were to be permanent. No one was suggesting that the community of laymen was exactly analogous to a community of religious or even to the whole body of the church, although equally obviously the possession of liberties contributed to the emergence of the communitas regni both as a concept and as a political phenomenon. It is more probable that the repetition of the phrase reflected a determination that there was to be no going back, a feeling that these were once and for all concessions which at last put a wide range of matters to right. In perpetuum served that purpose very well.
A second feature of the charters had more to do with government. They originated in rebellion, but they were drafted in the royal chancery. They are official documents. They are remarkable in the textual improvement which they underwent and in the additional material which they accumulated between the initial Articles of 1215 and the final versions of 1225. Two features of this are particularly striking. First, by 1217 new material was being introduced that went beyond the clarification of earlier provisions. Chapter 32 forbade the alienation of land that resulted in the loss of services to the giver’s/vendor’s lord. Chapter 35 introduced new arrangements for the sessions of the courts of shire, hundred, and wapentake; we have seen that these immediately became contentious. Chapter 36 forbade collusive alienation in free alms. Most striking of all, the Charter of the Forest, now issued for the first time, settled matters raised inconclusively in 1215 and also dealt with many matters of forest administration which had not been covered at all in the earlier document. Second, it seems beyond doubt that these new provisions were a response to evidence accumulated by enquiries into local government initiated under chapter 48 of Magna Carta in the summer of 1215. No returns to this inquest survive, but it certainly took place. Moreover the new material which appears in the Charters of 1217 bears all the marks of an enquiry characteristic of the operations of Angevin government. Whence else could the new material have come? So in effect the final version of the Charter was used as a vehicle for legislation, legislation drafted by royal officials on the basis of public enquiry. Magna Carta then became the origin of much subsequent legislation; the next in the series, the Provisions of Merton of 1236, acknowledged the debt in many of its provisions which elucidated matters first raised in the Charter. By the end of the century the manuscript collections of statutes, the Antiqua Statuta, gave Magna Carta pride of place. It became the first statute. It was kept in being as a source of law as well as a conveyance of liberties.50
This dual function was entirely pragmatic. Later generations, especially later generations of lawyers, might wonder how a document could be both statute and privilege at one and the same time; for statute, in one way or another, governed or directed the operations of the courts, while charters were subject to their jurisdiction. Hence Littleton argued that Magna Carta was “not a statute at the beginning until it was confirmed by the Statute of Marlborough cap. 5 and that was the time at which it was made.”51 But in the thirteenth century men were not asking such precise legal questions or making such fine distinctions; statute itself had yet to be defined. Indeed, they could treat the texts themselves in a manner which now seems cavalier. It is well known that the St. Albans chroniclers, Roger Wendover and Matthew Paris, made a mess of Magna Carta. Roger attributed both the Charter of Liberties and the Charter of the Forest of Henry III to King John by the simple process of changing the name of the grantor. He excused himself by saying that the charters of the two kings were alike. To compound his error he tacked on to the text a variant version of the forma securitatis which is found only at St. Albans. Matthew Paris subsequently obtained a correct version of the 1215 text and simply added the supplementary material in the margins of Wendover’s text, which he had already transcribed into his Chronica Majora.52 And this came from two men who were more conscious than many that the charters were a major advance in restricting monarchical excess. The truth was not simply that they lacked the knowledge and expertise to criticize the texts before them, but that all their instincts and training led them to treat variants as glosses. They were not alone in their documentary inexactitude. The so-called Statute or Provisions of Merton was not so much a statute, a product of a single time and place, as Littleton would have required, as an assemblage of material agreed and promulgated on different occasions and over several months between 1234 and 1236.53 And these confusions perhaps provide a clue, for it was the charters themselves, distributed throughout the shires, which provided the prime examples of clearly defined liberties and exact legislation as it could be understood in the context of the common law.
To summarize, by 1225 Magna Carta embodied two elements and lines of thought, or, if we prefer, could be viewed in two ways. On the one hand it was a grant of liberties; on the other it was a legislative act. On the one hand men and communities could appeal to it against acts of government. On the other it laid down governmental procedures and established points of law which the courts would follow and enforce. In one of its functions a widow could seek her due forty days’ residence in her husband’s house, a tenant could appeal against prerogative wardship, another claim rights ut de honore, or a city seeks free access to local riverbanks. In the other the Exchequer would follow the new rulings concerning baronial reliefs, or the provision concerning the collection of debt, and the justices the rule that common pleas should be held in a certain place. These two functions met where the interests of the crown and local communities ebbed and flowed in the provisions which concerned local government and the sessions of the local courts.54
Probably no one at the time recognized these hybrid characteristics in the documents of 1215 to 1225. But they soon came to react to them, perhaps even to understand the consequences. At least from 1285 to 1290, in the Mirror of Justices, there survives a hard-line insistence on the Charter as a grant of liberties, made in perpetuity.55 The writer’s argument is well summarized by Faith Thompson:
The author of the Mirror of Justices attempts a sort of complete commentary, article by article. He begins with an emphatic statement of his motives: “Whereas the law of this realm founded upon the forty articles of the Great Charter of Liberties is damnably disregarded by the governors of the law and by subsequent statutes, which are contrary to some of these articles, and the errors of certain statutes, I have put on record this chapter concerning the defects and reprehensions of statutes.” He then proceeds to point out certain defects (usually in the nature of too great brevity or incompleteness of statement) in articles 2, 3, 4, 6, 7, 17, and 26; interprets articles 9, 11, 18, 28, 29, 30, 32, 33, and 34, sometimes correctly, sometimes with embellishments of his own devising; and emphasizes the violation of articles 10, 12, 14, 16, 22, 24, 25, 29, and 35, through the practices of the king’s courts and officials, and the tenor of later statutes. In his discussion of the statutes of Merton, Westminster II and others, he points to provisions repugnant to articles of the Great Charter. He reveals himself as a staunch advocate of the “liberties of the Church,” and seignorial justice; he is conscious of the lack of adequate machinery to enforce the “liberties” and proposes a novel method for doing so.56
His method was not in fact so very novel, given that he was regarding the Charter primarily as a grant of liberties made in perpetuity: it was that any free man could pursue his free tenement in the liberties of the Charter by an action of novel disseisin.57 How else, in the first instance, would one pursue such a loss? He was more logical than his critics have allowed.
He was also trying to be more logical than either common sense or circumstances required. Whether or not he was Andrew Horn, chamberlain of the city of London, it is likely that he was a Londoner,58 and it may be that concern for London’s ancient liberties led him into such an approach. At all events he was still vulnerable in confronting the critical difficulty posed by the Charter’s content and format. How could law be founded in a grant of liberties? Especially one granted in perpetuity? Was each and every statute liable to be repugnant ever afterward? Was the Charter never likely to become out-of-date? Were its concessions to remain fossilized, never to be adjusted to changing ideas and social circumstances? Or, to put the same question in a contemporary context, was the Charter to be immune from glossing? Willy-nilly our author answered the question by glossing it himself. It was only thus that it could achieve the perpetuity it proclaimed.
The establishment view was looser and less contentious. Bracton simply drew on three chapters in dealing with reliefs, the writ praecipe, and the writ of life and limb.59 He made no special comment; for him, on these issues, the Charter simply embodied law. In 1267 chapter 5 of the Statute of Marlborough, the first coherently drafted statute, provided the first statutory confirmation, as Littleton later appreciated:
The Great Charter shall be observed in all its articles, both in such as pertain to the King as in others. And enquiry shall be made before the justices in eyre in their circuits and before the sheriffs in the county courts when necessary; and writs shall be granted freely against offenders, before the King or the justices of the Bench or before the justices in eyre when they come into those parts. Likewise the Charter of the Forest shall be observed in all its articles, and convicted offenders shall be punished by our sovereign lord the king.60
That seemed to accept that enforcement of the charters was part of the ordinary judicial process. Nevertheless it did not include enforcement as part of the general eyre and only two chapters, 5 and 35 of the Great Charter, came to be included in the articles of the eyre.61 The matter was further clarified in 1297. By then men were clearly arguing that the two charters should be treated as integral parts of their respective laws. The Confirmatio Cartarum laid down that “our justices, sheriffs, mayors, and other officials which under us have to administer the laws of our land, shall allow the said charters in pleas before them and in judgments in all their points; that is to wit, the Great Charter as the common law and the Charter of the Forest according to the Assize of the Forest, for the relief of our people.”62
This was repeated in the Articuli super Cartas of 1300. Chapter 1 provided that three knights appointed in each county to hear plaints of breaches of the charters were to have the power to impose penalties “ou remedie ne fust avant par commune ley.”63 Magna Carta was now enrolled as statute. It must have seemed quite incongruous that a document which was the origin of so much subsequent legislation and which figured so prominently in the proliferating collections of Antiqua Statuta had not hitherto been enrolled as such. That it spoke with the voice of a charter, not a statute, became a minor difficulty which could be reconciled. Littleton did it by reference to the Statute of Marlborough. Other lines were possible. A contemporary of Littleton, delivering a law reading on Magna Carta circa 1450, argued:
Bifore the makying of this statuet, that is to seie the great chartoure, there was certein lawes used, by the whiche men hade profit and also moche harme. And therfore the kyng, seyng this mischief, ordeyned the greet charter, wherin is contened alle the fruyt of lawes bifore used turnyng to the people profit and al other put away. Yet notwithstondyng that it is called a charter, it is a positif lawe, for it was used that what statuet that the kyng and his counseille made, it was ever set in the kynges comfermyng, so that, the kyng beyng chief of his counseille, spake in his owen name and his conseillz, seiyng “Concessimus et hac presenti carte etc.”64
The reader’s sense of history was inexact; he substituted King Edward for King Henry as the grantor of the Charter. But he was clear enough that the Charter was statute “ever set in the king’s confirming.” It is an open question who would have been the more surprised if confronted by that—Sir Edward Coke or King John.
A document which lay at the origin of statute and was at one and the same time a grant of liberties in perpetuity called for a recurring gloss: confirmation, interpretation, and commentary. It began as early as 1234 with the “interpretation” by the king and magnates of the disputed chapter 35.65 It continued at a spate. Beginning with the parva carta of 1237 Magna Carta was confirmed in at least fifty-six great councils or parliaments by 1422.66 By the beginning of the fourteenth century any lawyer of standing, whether judge or attorney, would have access to the Charter of Liberties in his copy of the Antiqua Statuta. Particular chapters figure in judgments, exceptions, pleadings, and processes; the evidence proliferates in plea rolls, yearbooks, and the Register of Writs. These developments have been well treated by Faith Thompson and require no further survey here.67 Yet they require three comments.
First, interest in the charters tended to concentrate on particular sections. This was very obviously so in the case of the Charter of the Forest where chapters 1 and 3 and the consequent perambulations underlay the prolonged dispute over the bounds of the forest which divided the crown and local communities on into the fourteenth century. There were also local disputes about chapter 2 dealing with summonses to the forest courts and about private rights within the forest covered in chapter 17, but these did not generate quite the same heat. The remainder of the Charter was not particularly contentious within the context of the forest law. It was the same with Magna Carta. As we have seen, chapter 35, dealing with the session of the local courts, was of immediate concern. Chapter 29, nullus liber homo, was given great prominence by internecine aristocratic conflict under Edward II. Individual litigants made good use of all the chapters which dealt with jurisdiction and penalties: the session of common pleas, the petty assizes, the affeering of amercements, prosecution by royal officials.68 Rights of wardship and dower still provoked appeals to chapters 4, 5, and 7. The collection of debt still kept chapter 18 very much alive. The Londoners were still ardent in maintaining their liberties and in pursuing the destruction of fish weirs on the Thames.69 Three chapters—14 on amercements, 18 on distraint for debts, and 24 on the writ Praecipe —appear in the Register of Writs. But there were also many chapters which attracted little or no attention. The crown had accepted and continued to execute some of the provisions: chapters 2 and 3, for example, largely settled the questions of reliefs and the succession of heirs; as a result appeals were few and far between. Other chapters seem to have lost the urgency they had in 1215. Disparagement of heirs was apparently a dead issue if, indeed, it had ever been very much alive (6). Sheriffs and other bailiffs were no longer holding pleas of the crown (17). Chapters dealing with demands for varied services (15, 20, 21) provoked little if any active interest, probably because the services were long since commuted. Legislative measures introduced into the Charter in 1217 to deal with loss of services through gift or sale (32), with patronage of abbeys (32), and with alienation in free alms (36) had been overtaken by circumstances or subsequent legislation. By the middle of the fourteenth century half the chapters of the Charter were uncontroversial, or dead, or moribund.
Second, the charters seem to have come to play a less obvious political role. In the case of the Charter of the Forest there may have been a real decline of interest as the central forest administration weakened in the course of the fourteenth century. The last forest eyre was held in Sherwood in 1334. By 1301 forest asserts and wastes were being converted into heritable socage tenures from which forest officials were excluded. The bounds, one of the crucial issues raised by the Charter, declined in importance because the forest was eroded from within. The Sherwood Forest Book preserves fourteenth-century bounds of the king’s reserves within the forest, dating probably from the eyre of 1334, but the last perambulation of the whole forest recorded in the book was that of 1300. So the Charter of the Forest lost practical importance. It still deserved pride of place as the first item when the Sherwood Forest Book was composed circa 1400, but it no longer occasioned political crises as it had done at times a century or more earlier.70 Whether something similar happened in the case of the Charter of Liberties is much more open to question. C. Bémont pronounced long ago that the Great Charter “rested in the shade” during the fifteenth and sixteenth centuries.71 The habit of counting parliamentary confirmations, which originated with Coke, seems to lend him some support. Of the fifty-six conciliar or parliamentary confirmations between 1327 and 1422, only eight came from the fifteenth century.72 Reference to specific chapters also apparently diminished. As Faith Thompson puts it, in the fifteenth century the Charter was “neither obsolete nor forgotten,” but
not as many different provisions of Magna Carta figure as in the earlier period. More detailed legislation had altered or superseded the Charter in some points. Pleaders still draw on it to make “frivolous exceptions”. . . . A few of the old standbys still serve to support a claim or defend against an abuse, notably chapters 9, 11, 12, 14 and 35. Now and then citing of the “statute” by pleaders or judges may be quite incidental, introduced by way of illustration, analogy, or precedent, a mere “academic reference.”73
However, it is easy to exaggerate this decline. It is true that neither Fortescue nor Littleton gave much space to Magna Carta, but nor had Bracton. Certainly Fortescue made no mention of it in his paean of praise for English law; even so, it underlay some of the main points in his argument. It would have been impossible to find chapter and verse for what he had to say about lex terrae as applied to arrest, trial, or threat to possessions without calling in the end on the Charter.74 Readings at the Inns of Court of 1450–1550 reveal considerable interest in chapter 11, covering the locations of the common pleas, and in due-process interpretations of chapter 29. It is significant that both were turned against non–common law jurisdictions of various kinds. This was quite apart from appeals to the liberty of the church of chapter 1, which were triggered by the Reformation.75 One Tudor occasion is of especial interest. In the debates and negotiations which led to the new Heresy Act of 1534 the Commons reinforced its opposition to ecclesiastical jurisdiction and the use of the ex officio oath in cases of suspected heresy by referring to chapter 29 of Magna Carta, which was noted in a full English translation. Among seven further statutes adduced in support there figured four of the six statutes of Edward III, some in summary, some with fragments given verbatim.76 Precedents had been searched; the linkages were understood; the whole memorandum is headed Magna Carta cap. xxix. This was at a time not of fragile monarchy but in the midst of the Henrician Reformation. The Heresy Act itself, in final form, gives no hint that Magna Carta had stalked through its origination.77 The importance of the Charter could no longer be measured by statutory confirmation any more than by its absence in Shakespeare’s King John. In parliament it was not so much forgotten as overlain.
Third, in this process the Charter of Liberties was glossed, interpreted, changed, pressed into use for objectives not originally intended. True, a famous addicio to Bracton laid down that “neither justices nor private persons could or ought to question royal charters and the acts of kings, nor even may they interpret them if doubt arises.”78 But practice was different. Magna Carta drew comment and interpretation like a magnet, ever more so as it acquired the standing of a statute and as the justices of the central courts of the common law took to judicial interpretation of other legislation.79 It was all the easier because judicial and legal interpretation was all of a piece with the textual gloss derived from biblical and patristic commentaries. In their association of text and commentary the justices shared much the same method and among their varied objectives they had one in common: to appropriate received texts to current circumstances.
It is with the consequences of interpreting and glossing that serious historical difficulties arise. The purist is likely to argue that any departure from the strict or literal sense of the original text amounts to distortion or misinterpretation. Once that is allowed Coke and Selden are condemned out of hand as inventors of a figment which they foisted on seventeenth-century England and thence on half the world. But the argument misses two points. First, it is not always easy to decide what the precise sense of the Charter originally was; the celebrated vel, “or” or “and,” of chapter 39/29 stands out as the most obvious example, concise but nonetheless subject to much debate. Second, and much more important, how could the intention of the charters as grants in perpetuum be met except by glossing, interpretation, and adjustment to new circumstances? It is not a matter here of imposing modern sociological concepts on medieval practice. Royal clerks themselves used the word interpretatio in describing the comments made by the king and magnates in 1234 on chapter 35. They and their contemporaries were familiar with the need to interpret common, well-used phrases in legal documents; the crown for example was imposing an increasingly restrictive interpretation on charters that conveyed manors “with their appurtenances.” Necessarily and increasingly as the thirteenth century progressed judges had to define procedure and interpret statute; the Charter of Liberties was one of those. And men were aware that much might depend on interpretation. Chapter 1 of the Charter of the Forest laid down that land brought within the forest by Henry II should be disafforested where it included the woods of others and was to their damage; if it was his own demesne it might remain forest. That subsumed a crucial question. Were the afforestations of Henry II to be interpreted narrowly as those which were entirely de novo, or were they also to include forests established by Henry I which were subsequently lost to the crown under Stephen? Lack of clarity here, which could have been deliberate, was one of the causes of the prolonged dispute over the bounds of the forest in the thirteenth century.
The resulting interpretations, constructions, or glosses varied in character. Some were plain errors that nonetheless matched the intentions of the Charter. In 1315, for example, Theobald Russell, a minor, petitioned for proper maintenance, quoting chapter 5 of the Charter. Chapter 5 mentioned no such thing; Theobald was simply asserting common practice which antedated 1215.80 Some were more serious mistakes which stretched the sense of the Charter beyond its original meaning. Chapter 23, which provided for the destruction of weirs on the Thames and Medway, was concerned with navigation. Already by 1302 it was applied to fishery protection, and it was given statutory blessing in this form in 1472. Meanwhile chapter 16, which was primarily concerned with hawking, was also extended to fishing rights. The two chapters together provided a notably confused origin to the law of fisheries.81 One such construction played a notable part in the later history of the Charter. This concerned chapter 30, which was aimed initially against restrictions on the movements of alien merchants. Exploited first by the Bardi in 1320 to claim exemption from the wool staple, it was quickly expanded in 1328 to cover denizens as well. It then figured as a precedent in Bates’s case of 1608 and was later interpreted by Coke as prohibiting monopolies of trade.82 Such “errors” or “mistakes” are not at all difficult to fit into the ordinary pattern of legal history where variant constructions and aberrant pleas are run-of-the-mill material.
Magna Carta also presented quite another problem. What meaning was to be given to words and phrases that intrinsically required construction; so much so that they could not be applied without it? This is the nub of chapter 29 and the much-discussed phrase per legale judicium parium suorum vel per legem terrae. For these words lead us through a historiographical progression, roughly as follows:
1. There is little difficulty in understanding how it came about that lawful judgment of peers became trial by peers by the middle of the fourteenth century. Here Magna Carta did little more than assert a principle of procedure integral to feudal jurisdiction as it was practiced throughout western Europe in the twelfth and thirteenth centuries. In England it is presented as an axiom in the Leges Henrici Primi.83 That this should be refined into the precise form of trial by peers by the experience of the internecine strife of the reign of Edward II was a natural and logical progression. Arguably it lay within the intent of 1215.
2. It is also reasonably easy to understand how the judicium parium and lex terrae of 1215 came to include trial by jury. Magna Carta does nothing to elucidate per legem terrae; it is not concerned with the detail of criminal process. But by the fourteenth century criminal process involved trial by jury; it had become part of lex terrae. To include it within the traditional term, to treat trial by jury as if it were a gloss of lex terrae, was a natural and logical progression, but one, we may note, which embraced a method of trial that scarcely existed in 1215.
3. These changes were brought together in the six statutes passed by parliament between 1331 and 1368. But in these parliament went further by converting lex terrae into due process of law, which meant procedure by original writ or indicting jury. As the second statute of 1352 reveals this move was quite deliberate:
Whereas it is contained in the Great Charter of Liberties of England, that none shall be imprisoned nor put out of his freehold, nor of his liberties or free customs, unless it be by the law of the land; it is accorded, assented and established, that from henceforth none shall be taken by petition or suggestion made to our lord the king, or to his council, unless it be by indictment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law.84
The effect of this was to confine lex terrae to the common law and to exclude conciliar or prerogative jurisdiction. In the case of the jury construction includes later development. Here it excludes later development. How soon this took hold is uncertain. Already in the twelfth century lex scaccarii foreshadowed the prerogative jurisdiction of later times, and it may be significant that the limiting effect of chapter 29 was turned against the Exchequer no later than the 1330s.85 That it would be aimed more generally against non–common law jurisdiction is plain from the Articuli super Cartas of 1300, which limit the jurisdiction of the Seneschalsea and Marshalsea as well as that of the Exchequer.86
4. There was another development, at first sight the most puzzling of all. In 1215 and 1225 chapter 29 began with Nullus liber homo. In the statutes of 1331 and 1352 this became “No man” and then in 1354 “No man of whatever estate or condition he may be.”87 How this came about no one has hitherto explained. One thing seems certain: neither the commons in parliament, with whom these words originated, nor the judges were expressing a sudden access of concern for the unfree whom the liber homo of Magna Carta deliberately excluded. The real explanation is simpler and has to do with language. The sense of “free man” was changing. In 1215 it was all embracing: there was not need to spell out that the liber homo of chapter 39 included all from the greatest in the land down to the simple freeholder; indeed, as the Charter tells us “freemen” still held their courts in jurisdiction over their tenants. By the fourteenth century this broad, inclusive sense of the words no longer held good. The language of social stratification was becoming increasingly diverse and specific. By the end of the century society was seen as a hierarchy of knights, squires, and yeomen, to whom gentlemen were soon to be added. Within these arrangements the free man became the franklin. The term was no longer comprehensive, but increasingly particular; freeborn was one thing, gentle or noble born quite other.88 Hence if the free man of Magna Carta had been allowed to stand in the six statutes it would have tended to restrict these provisions to a particular social grade, and it was to counter this that the statute of 1354 resorted to “no man of whatever estate or condition he may be.” It was not designed to give the unfree expanded access to the courts. It was for Coke later to lay down that it embraced the villein except in actions against his lord.89
Now are all these changes “legitimate”? And if we accept that chapter 29 could be made to embrace trial by jury what objection can there be to the attempt made in the debate on the Petition of Right to base the writ of habeas corpus also on Magna Carta? And if it is legitimate to turn due process against the Exchequer or Marshalsea in the fourteenth century why not against the Star Chamber in the seventeenth century? And does “due process” stand in the way of committal on special mandate of the king, the issue raised in the Five Knights’ Case of 1627? And do “liberties” and “free customs” run counter to patents of monopoly as Coke maintained in the Second Institute? Plainly such questions allow no answer except perhaps one. The arguments in the Five Knights’ Case or in the debate on the Petition of Right were no greater distortion than the fourteenth-century interpretations of due process. If the later arguments were “distortions” and “misinterpretations” so were the earlier. If the earlier arguments grew out of the implications of chapter 29 granted as a perpetual liberty in 1225, so did the later. In this crucial section of the Charter, Coke cannot be separated in our treatment of him from the precedents by which he set so much store.
But there is really no choice of interpretation. If we like we may polarize our approach: “error” on the one hand; an infinite regression of construction on the other. The plain fact is that from the thirteenth to the seventeenth century men saw nothing incongruous in construing Magna Carta any more than in glossing Holy Writ. And it is worth noting that the process was not indiscriminate nor the regression infinite. The six statutes of Edward III provide splendid examples of parliamentary construction, of the gloss. The Confirmatio Cartarum of 1297 and the Articuli super Cartas of 1300 demonstrate equally clearly that glossing had its limits. Both these documents were intimately related to the charters and immediately concerned with their enforcement. But both distinguished very clearly between the charters and the supplementary provisions they contained concerning taxation and other matters. Edward I’s maletote on wool was restricted by a specific regulation, not by any constructive gloss on chapter 30 of the Charter; prises again were treated quite separately without reference to chapter 19. So magnates and knights in parliament knew when to gloss and when to add and, in adding, knew that it made sound sense to associate new demands with old concessions, to secure a restriction of the maletote and prises on the coattails of Magna Carta. Edward I also knew the difference. He was ready enough to confirm the charters: he resisted the additional provisions. This was at a time when both the king and his opponents were locked in dispute on yet another point of interpretation—the provisions on disafforestation in the Charter of the Forest.
So the medieval treatment of Magna Carta was striking in its variety. Some of it was accepted; some of it was disputed; particular chapters were used to defend local communities against royal officials; others provided building blocks for further legislation. It was interpreted by hopeful litigants, slick lawyers, legal commentators, and by parliament itself. Some of these constructions became embedded in its history. For more than a century it was a political force; at its weakest a kind of ritual, the first demand, the easiest concession; at its strongest, powerful enough to tow other demands in its wake. Common to all these varied reactions and uses there was a crucial element not so far discussed: the relationship of present to past, of new concessions to ancient practice, of Magna Carta to what had gone before; in short, a sense of history. “And forasmuch as approved Histories are necessary for a iurisconsult—for hee that hath redd them seemed to have lived in those former ages, Histories shall followe in the next place.” Thus Sir Edward Coke’s library catalog.90 The intimate relation between law and history was of a special kind. It was concerned with precedent. It involved selection and encouraged error, but it was something different from the simple anachronism of superimposing the present on the past of which Petit-Dutaillis charged Stubbs, and Butterfield a whole host of Whig historians. It was more deliberate, more precise, and in the case of Magna Carta came to involve a specific objective. This was to circumvent the fact that liberties originated in a royal grant by arguing that they were ancient and preordained: the Charter, as a result, could be reduced to a confirmatory or declaratory role.
This argument was familiar by the seventeenth century. Coke declared that “the Charter was for the most part declaratory of the principal grounds of the fundamental laws of England, and for the residue it is additional to supply some defects of the common law”; again “this statute of Magna Carta is but a confirmation or restitution of the Common Law”; and again, on chapter 29, “this chapter is but declaratory of the old law of England.”91 Similar views were held well before the seventeenth century. Fifteenth-century readings, as we have seen, took the line that the king “ordeyned the greet charter, wherein is contened alle the fruyt of lawes bifore used turnyng to the people profit and al other put away.”92 There was a hint of the same approach already in 1226 when the knights of Lincolnshire sustained their argument against the sheriff ’s muster of the shire court by pointing out that the king had granted to all free men their liberties and ancient customs. If that is reported correctly, it was a slight but significant twist to the final chapter of the Charter, which confirmed liberties and free customs which they formally held.93
This appeal to the past was in our sense uncritical. Men confused the essential documents, so that the Charter of 1215 retained a shadowy importance even though superseded by the later versions. In 1231 an Oxfordshire jury attributed the concession of 1217 on the sheriff ’s tourn to the “Charter of Runnymede.”94 The provisions of 1215 concerning the assessment of scutages and aids and the taking of common counsel were recalled in various contexts up to 1255.95 Article 56, concerning the law of the Welsh March, was still raised in a plea in 1291.96 So Roger Wendover and Matthew Paris were not alone in confusing the various crucial texts. It is difficult to attach a special political significance to some of these instances. They probably reflect little other than the occasional survival of the text of 1215. But they all illustrate a casual treatment of documentary evidence. It is not just that the 1215 version was still used, but that its use passed unchallenged. It is with this in mind that we should approach the earlier documentation.
The rebellion of 1215 began with a demand for the confirmation and reissue of a basic text: the coronation charter of Henry I. It is also obvious that the older charter of Henry had a direct influence on Magna Carta: each begins with the liberties of the church and then proceeds to feudal incidents. It seems probable that the charter of Henry I was retrieved from repositories in or near London; Westminster, Lambeth, and the royal Treasury all contributed early versions. A Treasury version was almost certainly the source of the text used in the so-called unknown charter. Its interest for our present purpose is that notes were added to it summarizing further concessions by, or demands on, King John.97 A London/Westminster version was used in Harleian MS 458, a bifolium containing texts in both Latin and French of the coronation charters of Henry I, Stephen, and Henry II. In all probability this was the work of someone investigating the precedents available in previous royal grants and preparing them for the attention of an audience more accustomed to French than Latin.98 The text available at Lambeth, copied into the archiepiscopal register Lambeth MS 1212 circa 1250, was also of this Westminster version.99 All that is reasonably solid ground. It implies that there was a serious investigation of the available texts; they were transcribed with varying but on the whole fair accuracy; additional material was carefully distinguished. There was no attempt to gloss.
However, historico-legal research did not end there. It also extended to two texts drawn from the first half of the twelfth century, the Leges Henrici Primi and the Leges Edwardi Confessoris. These were a blend of Anglo-Saxon and Frankish law. The Leges Henrici Primi especially contained some genuine Anglo-Norman custom and legislation. Both were spiced with a dash of history. These texts were a different kettle of fish from Henry I’s coronation charter, where authenticity mattered. They were miscellaneous collections; compared, for example, with the Decretum or the Institutes their authority was variable and uncertain; still they were texts and so they were glossed, especially the Leges Edwardi Confessoris. Again there is very little doubt that this was done in London, probably early in the reign of John. In the surviving manuscript the gloss takes the form of additional material interpolated in the body of the text. In the specifications about justice, judgment of peers, baronial counsel, and advice, the inserted material anticipates the program of 1215. And it was associated in the texts with the coronation oath.100 It was to the renewal of the oath and the reissue of the charter of Henry I that the opposition to King John first turned in 1213 and 1214. This established a pattern. The tactic used to secure the settlement of 1215 and 1225, both then and ever afterward, was based exactly on this earlier tactic which already linked oath and charter.
There can be no doubt that all that was deliberate. Charters are not exhumed from repositories, manuscripts are not copied and interpolated, by accident. This material provides the clearest evidence of a program, the intellectual ammunition for a political movement. The work was centered on London. Here the Chapter of St. Paul’s provided some of the most ardent supporters of the baronial movement, and it may not be too fanciful to imagine that one or two of them who later played a prominent role in the rebellion, Simon Langton and Gervase of Howbridge, were already up to their necks in the preliminaries. The mayor of London was one of the Twenty Five. Almost certainly a party in the city connived in admitting the barons at the beginning of May 1215. The Charter itself copied the commune of London in seeking to establish a commune throughout the land.
At first sight the program has the appearance of an artificial confection, of items thrown together for the convenience of the moment. That is probably true of any political program. But, like all attractive political programs, this tapped sources which were rich and deep. The coronation oath, the charter of Henry I, the laws of Henry I and Edward the Confessor, were not an accidental association; they were all expressions of ancient law which was now being used as a standard whereby Angevin government could be weighed, criticized, and corrected. Whether the standard was accurate mattered less than that it was ancient, for antiquity was nine-tenths of the law. The most elementary questions asked in the common law courts concerned the past: Is the tenement free? Did disseisin occur within the term of the assize? Is John the heir of William and was William seized on the day he died? Who presented to the living last? Perhaps especially, Who has the better right?—for here the answer might well lead to family descents going back for generations. Memory and record were essential to the ordinary operations of the courts. All litigants, jurymen, and judges required a sense of history. Ancient custom was more than an artifact recorded in old documents and texts. It was the common memory of how society was organized and social relations conducted. It was the expression of stability. In the courts it was refined into precise questions because exact answers were required in order to resolve disputes. Legal action required the explicit. But ancient custom was also implicit outside the courts in the organization and arrangement of men’s daily lives.
In England this had a special importance. In the courts of law and also in other circumstances memory might well reach back through the twelfth century to the advent of the Normans and what had gone before. The charter of Henry I, on which men pinned their hopes prior to 1215, confirmed the law of King Edward. In the courts men might claim tenure a conquestu, but that was no more than an argument of longevity; conquest was a poor justification of title. So the Conqueror legitimized his title by claiming that he was the lawful heir of the Confessor, and his followers often legitimized their title also by reference to their antecessores, who might well be Anglo-Saxon. As a result concern for the antecessor was deeply ingrained in English law, determining succession practices from the crown down to the meanest freeholder. It was paralleled in canon law by the insistence on the duty of the incumbent to maintain his benefice as it had been held by his predecessor.101 All this emphasized the past. It highlighted particular documents: Domesday Book, the single great title-deed which enshrined the principle of antecession; the charter of Henry I, which provided the continuity with the law of Edward; and the Leges Edwardi Confessoris and the Leges Henrici Primi, which described what that law was. It enhanced the reputation and memory of particular individuals: Edward the Confessor, canonized in 1161; Wulfstan, bishop of Worcester 1062–1095, canonized in 1203. Both were the object of royal takeovers. Henry II pressed for the canonization of Edward; Henry III built the noble shrine for him at Westminster. King John adopted Wulfstan as his patron saint; he was buried at Worcester near Wulfstan’s tomb with effigies of Wulfstan and St. Oswald either side his own. It did not work. The barons appropriated Edward as the source of good and ancient law. Pandulf, the papal nuncio, told John curtly in 1211 that he had no right to seek precedents in Edward’s appointment of Wulfstan to the bishopric of Worcester since he ignored the good laws of King Edward and enforced the evil laws of William the Bastard.102
At this point both secular and ecclesiastical law were interwoven with legend. For King John was trying to use the tale that Wulfstan, on being dismissed by the Conqueror, had thrust his staff into the Confessor’s tomb, whence only he could withdraw it. It was a tale first told in 1138 by Osbert of Clare, prior of Westminster, as evidence of Edward’s sanctity. It was then repeated by Ailred of Rievaulx and became well known, contributing in turn to the Arthurian legend. It was with such material that political arguments were forged. Behind both politics and law were minds filled with a largely legendary history, the tall stories of Geoffrey of Monmouth regurgitated as vernacular romance by Gaimar, Wace, and others. King John himself possessed, and seems to have read, a Romance of the History of the English.103 Let the title speak for itself.
This literary effervescence of the twelfth century enjoyed royal and aristocratic patronage. Henry II was the patron of both Wace and Benoit. Geoffrey of Monmouth’s various manuscripts are dedicated to Robert, earl of Gloucester, Waleran, count of Meulan, and King Stephen. Robert of Gloucester passed a copy of Geoffrey’s work to Walter Espec, lord of Helmsley, who passed it on to Ralph fitz Gilbert, whose wife, Constance, passed it in turn to Gaimar, asking that he translate it into Norman French.104 These men and their descendants did not see the past as we see it. They read rather of the Marcher baron, Fulk ftz Warin, a participant in the movement of 1215 who first made his name as an outlaw rebel against King John and as the man who triumphed over sundry giants and evil spirits culled from the myths of the Welsh Marches. So their Edward the Confessor and Henry I were not ours. The Confessor was a canonized saint, a worker of miracles; and Henry I was the “keeper of the bees and the guardian of the flocks” who “did right and justice in the land,” he whom Merlin had named the Lion of Justice. Thus the London interpolator of the Leges Edwardi Confessoris.105 It was by that comparison that the Angevins stood condemned.
In one instance this blend of law, history, and legend can be analyzed with some precision. Among the statutes of uncertain date included in the Statutes of the Realm is a record of the usages and customs of Kent made before the justices in eyre, headed by John of Berwick, in 1293. It is a lengthy statement of the inheritance practice of gavelkind and of sundry other legal privileges claimed by the Kentish freeholders. It asserts that all Kentish men were free. It maintains the principle of antecession; even the felon’s heir shall “hold—by the same services and customs as his ancestors held.”106 In one matter, the replacement of knights by gavelkinders on juries of Grand Assize, the record was based on an earlier concession by Henry III, and it was noted that the charter conferring this was in the custody of Sir John Norwood. The charter undoubtedly existed, for it is mentioned in two associated writs in the Close Rolls,107 and it is noteworthy that it was in the hands of a knight of the shire, as happened elsewhere with Magna Carta. This one point apart, all the remaining customs derived their authority from antiquity. The record concludes: “These are the Usages of Gavelkinde, and of Gavelkindmen in Kent, which were before the Conquest, and at the Conquest and ever since till now.”
That was pointed. Why mention the Conquest at all? The answer lies in a legend first recorded at St. Augustine’s, Canterbury, some time after 1220, in annals attributed to, or copied by, William Sprott and later repeated by William Thorne. This related how at the time of the Conquest William the Conqueror was ambushed on Swanscombe Down by all the men of Kent, headed by Stigand, archbishop of Canterbury, and Aethelsige, abbot of St. Augustine’s. They treated: the men of Kent promised to accept William as their liege lord on condition that they should “enjoy the liberties they had always had and use their ancestral law and customs.” This was agreed. As a result, “the ancient liberty of the English and their ancestral laws and customs which, before the arrival of Duke William, were in force equally throughout the whole of England, have remained inviolable up to the present time only in the county of Kent.”108 The St. Augustine’s story was quite clear. The result of the Conquest was that the English were reduced to everlasting servitude by the Normans. Only the men of Kent escaped the yoke of slavery.
The tale of Swanscombe Down was fiction. The London interpolations in the Leges Edwardi Confessoris were fabricated. The interchanges between King John and Pandulf that contrasted the good laws of the Confessor with the evil laws of the Conqueror were recorded long after the event. Nevertheless all three express a potent train of thought that good law was ancient law, in particular Anglo-Saxon law; that charters confirmed and restored, they did not innovate. These were some of the conceits and notions on which the knights of Lincolnshire could well have drawn when they claimed in 1226 that King Henry had confirmed their ancient liberties. They certainly provided the texts for the theory of the Norman Yoke and the argument that the Charter was restorative as they were developed in the seventeenth century. Sprott’s tale of Swanscombe Down was repeated by Holinshed and summarized by Lambarde who, in his Perambulation of Kent (1576), preserved the best text of the judicial record of Kentish customs of 1293. Tottell also included it in his Magna Charta cum Statutis (1556). In addition Lambarde published the London text of the Leges Edwardi Confessoris in his Archaionomia (1568). Coke possessed copies of both the Perambulation and Archaionomia.109 The latter was his main source of information on Anglo-Saxon law. There is a most direct textual link between the thirteenth and the seventeenth centuries.110
This textual dependence of Coke and others on the achievement of the medieval period extends across the whole activity of the intellect and the imagination: legend, the logical assumptions and implications of legal actions, interpolations in ancient laws, the promises of long dead kings, the charters themselves, the arguments about them, the construction and interpretation of them in plea and statute. Coke and his contemporaries must not be deprived of all capacity for individual thought. But even when original, in construing the Charter as prohibiting monopolies, for example, Coke was conforming in his method to a medieval pattern. Coke’s ideas were old-fashioned. It may not come amiss to recall the words of Namier: “What matters most about political ideas is the underlying emotions, the music to which the ideas are mere libretto, often of very inferior quality.”
The most important aspects of the antiquarian movement of the seventeenth century lie in the simple things. First, the antiquaries revived the Charter, looked at it as a whole, took in many of the medieval constructions and glosses, provided some of their own, although not many, and, above all, in truly medieval style, proceeded to apply the great tradition to their own particular circumstances. No one summed it up better than Sir Benjamin Rudyard in the debate on the Petition of Right: “I shall be very glad to see that old, decrepit Law Magna Charta which hath been kept so long, and lien bed-rid, as it were, I shall be glad to see it walk abroad again with new vigour and lustre, attended and followed with the other six statutes; questionless it will be a great heartening to all the people.”111
Second, this renaissance was in part the work of officials of the Crown like Lambarde and was manifested most powerfully by a chief justice, Sir Edward Coke. Judges are not noted for conducting manifest private warfare within the structure of royal government. Yet Coke did just that and had the intellectual confidence, the indignation, to persist. At the time this seemed important. The Second Institute was prohibited and only published posthumously by order of the Long Parliament in 1641. But it was important not because of the contents of the Second Institute, which few if any of the members could yet have read, but because they too were now acting in anger, in indignation, and in sympathy with Coke’s lifework.
If that is the case it leaves us with a problem. What were the intellectual origins of the English Revolution? Or perhaps it might be put differently. Was the so-called English Revolution any different in its origins from the political movements which from time to time had disturbed the tenor of medieval England?112
[1. ] J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century; a Reissue with a Retrospect (Cambridge, England, 1987), 261, n. 8.
[2. ] “The Constitution of the Common-wealth of Israel.”
[3. ] “Who exactly knew the frame and constitution of the kingdom.”
[4. ] “Whereas King James the Seventh did by the advice of wicked and evil counsellers invade the fundamental constitution of the Kingdom and altered it from a legal limited monarchy, to an arbitrary despotick power” (Declaration of the Estates of Scotland, April 11, 1689).
[5. ] “They studien faste and techen here owene constitucions.” The Apostolic Constitutions and the Constitutions of Clarendon are also noted in OED; on the latter see below.
[6. ] “The statutys of kyngys, also be over-many, even as constytutyonys of the emperors were” (Starkey, 1538); “All this while our Kings and Bishops called Councels—made Ecclesiastical Lawes and constitutions in their Synods and Parliaments” (Bramhall, 1661).
[7. ] A very useful indication of what the answers are likely to be is provided by Corinne C. Weston, “The Theory of Mixed Monarchy under Charles I and After,” English Historical Review 75 (1960): 426–43, esp. 428–29; and English Constitutional Theory and the House of Lords, 1556–1832 (London, 1965), 26–28, esp. n. 34. She points out that under Charles I the term constitution, as good and ancient, was appropriated to the royalist cause by Falkland, Culpeper, and Hyde. See Charles’s response, drafted by Falkland and Culpeper, to the Nineteen Propositions of June 1642 in which he refers to “the antient, happy, well-poysed, and never enough commended Constitution of the Government of this Kingdom” (William Rushworth, Historical Collections [London, 1692], vol. 3, pt. I, 731) and claims that acceptance of the Propositions “would be a total subversion of the Fundamental Laws, and that excellent Constitution of this Kingdom, which hath made this Nation so many Years, both famous and happy to a great degree of envy” (ibid., 732). Compare his reference to the “glorious Frame and Constitution of this Kingdom” in his proclamation of September 27, 1642 (ibid., vol. 3, pt. II, 10). The change to the newer prescriptive sense of the word occurred under Charles II and drew the comment from Roger North that it was now “commonly brought forward with a Republican Face” (Weston, English Constitutional Theory, 99–100).
[8. ]Councils and Synods with Other Documents Relating to the English Church (Oxford, 1981), ed. D. Whitelock, M. Brett, and C. N. L. Brooke, vol. 1, pt. II, 855–85. “[F]acta est recordatio et recognitio cuiusdam partis consuetudinum et libertatum et dignitatum antecessorum suorum” (877). For the marginal entry see 883, n. h. It may be that “constitutions” had too canonical a flavor in the circumstances at Clarendon. However, the word was not used exclusively in a papal or ecclesiastical context, and the main point must surely be that Henry was aiming, not at a statute or “constitution,” but at a declaration of his customary rights.
Lanfranc’s “Constitutions” seem not to deserve the title any more than the Clarendon “recognition” of 1164. See The Monastic Constitutions of Lanfranc, ed. D. Knowles (London, 1951), 1–3.
[9. ]Councils and Synods, 926–39.
[10. ] Ibid., 937.
[11. ] On the title see J. C. Holt, Magna Carta, 2d ed. (Cambridge, England, 1992), 429.
[12. ] “Hec est forma securitatis ad observandum pacem et libertates inter regem et regnum.”
[13. ] Holt, Magna Carta, 490.
[14. ] “Cartam—de libertate sancte ecclesie et libertatibus et liberis consuetudinibus.”
[15. ] See the letters of June 27, 1215 in Holt, Magna Carta, 496. The phrase does not occur in the letters of June 19 where John was more concerned with the restoration of peace; here Magna Carta is simply described as carta (ibid., 493).
[16. ] For some general discussion of this matter see J.-F. Lemarignier, “La dislocation du ‘pagus’ et le problème des ‘consuetudines’ (xe-xie siecles),” Mélanges Louis Halphen (Paris, 1951), 401–10; also J. C. Holt, “The Origins of the Constitutional Tradition in England,” in J. C. Holt, Magna Carta and Medieval Government (London, 1985), 19–20; and Susan Reynolds, Kingdoms and Communities in Western Europe, 900–1300 (Oxford, 1984), 13–21.
[17. ] In the Constitutions of Clarendon the king also enjoys liberties (Councils and Synods, 877), but this is a solitary occurrence of the word; compare chap. 17, Councils and Synods, 883.
[18. ]Articles, chap. 32; Magna Carta, chap. 13.
[19. ]Articles, chap. 39; Magna Carta, chap. 48.
[20. ] W. Blackstone, The Great Charter and Charter of the Forest (Oxford, 1759), 68–69.
[21. ] For existing procedures, judicium parium; for long-established principles, the prohibition of the sale of justice; for ancient liberties, the privileges of London.
[22. ] F. M. Powicke, “The bull ‘Miramur plurimum’ and a letter to Archbishop Stephen Langton, 5 September, 1215,” English Historical Review 44 (1929): 92.
[23. ]Selected Letters of Pope Innocent III, ed. C. R. Cheney and W. H. Semple (London, 1953), 212–16.
[24. ] See especially V. H. Galbraith, “Runnymede Revisited,” Proceedings of the American Philosophical Society 110 (1966): 307–17; “A Draft of Magna Carta,” Proceedings of the British Academy 53 (1967): 345–60.
[25. ] Chaps. 52, 55.
[26. ] Chap. 63.
[27. ] This is the word in his own charter of submission. See W. Stubbs, Select Charters, ed. H. W. C. Davis (Oxford, 1921), 279–81.
[28. ] Faith Thompson, “The First Century of Magna Carta: Why It Persisted as a Document,” University of Minnesota, Studies in the Social Sciences 16 (1925): 97–102. For an illuminating and suggestive examination of the problem see J. W. Gray, “The Church and Magna Carta in the Century after Runnymede,” Historical Studies 6 (1968): 23–38, and for a detailed study of a particular crisis see J. H. Denton, Robert Winchelsey and the Crown, 1294–1313 (Cambridge, 1980), 136–76.
[29. ]Statutes of the Realm, I, 6. C. Bémont, Chartes des Libertés Anglaises (Paris, 1892), 71–75. The exceptions and exclusions are stated with considerable precision in letters patent of May 13 promulgating the sententia.
[30. ] J. R. Maddicott, “Magna Carta and the Local Community, 1215–1259,” Past and Present 102 (1984): 35.
[31. ]The Sherwood Forest Book, ed. Helen E. Boulton (Nottingham, 1964), 12–28, 33.
[32. ]Medieval Drawings and Writings in Ashwell Church, Hertfordshire (Ashwell, 1978).
[33. ] Holt, Medieval Government, 203–15.
[34. ] The endorsement, Lincolnia, is contemporary.
[35. ] For Salisbury, see Holt, Medieval Government, 259–64.
[36. ] Holt, Magna Carta, 380, n. 7.
[37. ] Blackstone, Great Charter, xlvii.
[38. ]Sherwood Forest Book, ed. Boulton, 33.
[39. ] Ibid., 32.
[40. ] Holt, Magna Carta, 50–72.
[41. ]Curia Regis Rolls, 7, pp. 158–59.
[42. ] Ibid., 12, nos. 2142, 2312.
[43. ]Rotuli Litterarum Clausarum, 2, pp. 154b, 212b–13. There is no apparent reason for the omission of Cornwall and Westmorland.
[44. ] Holt, Magna Carta, 385–86, 394–95; Maddicott, “Local Community,” 36–40.
[45. ]Patent Rolls 1216–25, pp. 575–76; Holt, Magna Carta, 395.
[46. ]Close Rolls 1231–34, pp. 588–89.
[47. ] Maddicott, “Local Community,” 35–36, 40–48.
[48. ] For the choice of local officials see Holt, Magna Carta, 61–62; Maddicott, “Local Community,” 29, 44–45; D. A. Carpenter, “The Decline of the Curial Sheriff, 1194–1258,” English Historical Review 91 (1976): 1–32.
[49. ] Stubbs, Select Charters, 284. For further comment on in perpetuum see Holt, Magna Carta, 518–22.
[50. ] Holt, Medieval Government, 289–307. In the above paragraph and throughout the numeration of the 1225 chapters is also used for 1217.
[51. ] S. B. Chrimes, English Constitutional Ideas of the Fifteenth Century (Cambridge, 1936), 43–44 and appendix 61; Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (Minneapolis, 1948), 66–67.
[52. ] Holt, Medieval Government, 265–87.
[53. ] H. G. Richardson and G. O. Sayles, “The Early Statutes,” Law Quarterly Review 50 (1934): 204.
[54. ] Thompson, The First Century, 37–65 and the useful table, 66–67.
[55. ]The Mirror of Justices, ed. W. J. Whittaker, intro. F. W. Maitland (London, 1893).
[56. ] Thompson, The First Century, 58–59.
[57. ]Mirror of Justices, ed. Whittaker, 176. On Magna Carta as a property right compare Coke’s argument in the debate on the Commons’ Protestation in the parliament of 1621 (Stephen D. White, Sir Edward Coke and the Grievances of the Commonwealth [Manchester, 1979], 176).
[58. ] H. G. Reuschlein, “Who wrote the Mirror of Justices?,” Law Quarterly Review 58 (1942): 265–79.
[59. ]Bracton on the Laws and Customs of England, ed. S. E. Thorne, 4 vols. (Cambridge, Mass., 1968–1977), 1:244, 343; 2:300.
[60. ]Statutes of the Realm, I, 19.
[61. ] H. M. Cam, The Hundred and the Hundred Rolls (London, 1930), 251, 253.
[62. ] Stubbs, Select Charters, 492–93.
[63. ] Bémont, Chartes des Libertés Anglaises, 100–101.
[64. ] G. O. Sayles, “A Fifteenth-century Law Reading in English,” Law Quarterly Review 96 (1980): 569–80. See also H. G. Richardson, “The Commons and Medieval Politics,” Transactions of the Royal Historical Society, 4th. ser. 28 (1946): 21–45.
[65. ] See above, p. 47.
[66. ] Thompson, The First Century, appendix C, and Magna Carta, 10, n. 4, 11–12. The count is difficult for the reign of Edward II because of the varying status of the Ordinances of 1311.
[67. ] Thompson, Magna Carta, 33–67, on which the information in the following paragraph is based.
[68. ] Chaps. 11, 12, 13, 14, 28.
[69. ] Chaps. 9, 23.
[70. ]Sherwood Forest Book, ed. Boulton, 39–42, 56–59, 98–102, 103–8, 185–93.
[71. ] Bémont, Chartes des Libertés Anglaises, xlviii–l.
[72. ] Coke’s count was “32 severall Acts of Parliament in all” (Sir Edward Coke, The Second Part of the Institutes of the Laws of England [London, 1642], Proeme); Bémont noted fifteen under Edward III, eight under Richard II, six under Henry IV, and one under Henry V (Chartes des Libertés Anglaises, xlix–l).
[73. ] Thompson, Magna Carta, 61.
[74. ] Sir John Fortescue, De Laudibus Legum Angliae, ed. and trans. S. B. Chrimes (Cambridge, England, 1942), 86–89.
[75. ]Spelman’s Reports, ed. J. H. Baker (London 1976–1977), esp. 57–59, 71–72, 346–47.
[76. ]The Complete Works of St. Thomas More, ed. John Guy, Ralph Keen, Clarence H. Miller, and Ruth McGugan (New Haven, Conn., 1987), 10:lxii–lxvi. The document in question is PRO, SP 1/82. Magna Carta chap. 29 and the associated statutes are at fos. 57v–58. All are in English. The translation of chap. 29 (given ibid., lxiv, n. 5) is not drawn from Rastell’s Great Abridgement of 1627; cp. Thomson, Magna Carta, 150. I am obliged to Dr. Guy for drawing my attention to this document.
[77. ]Statutes of the Realm, III, 454–55.
[78. ] Bracton, De Legibus et Consuetudinibus Angliae, fo. 34, ed. S. E. Thorne, 4 vols. (Cambridge, Mass., 1968–1977), 2:109. Cp. fo. 106 where a similar view is taken of fines (2:302).
[79. ] The development of judicial interpretation is summarized by T. F. T. Plucknett, A Concise History of the Common Law, 4th ed. (London, 1948), 311–16. It is impossible to summarize within the space of a short note the extensive literature on the subject. For a recent and most valuable discussion, which is comprehensive bibliographically, see Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, England, 1977).
[80. ]Rotuli Parliamentorum, I, 318; Thompson, Magna Carta, 40.
[81. ] W. S. McKechnie, Magna Carta, 2d ed. (1914), 303–4, 344–45; Thompson, Magna Carta, 25; S. A. Moore and H. S. Moore, The History and Law of Fisheries (London, 1903), 6–18.
[82. ] Holt, Magna Carta, 13–14; Thompson, Magna Carta, 111–12, 249–55.
[83. ] Holt, Magna Carta, 75–76.
[84. ] Thompson, Magna Carta, 91.
[85. ] Ibid., 89.
[86. ] Chaps. 3, 4.
[87. ]Statutes of the Realm, I, 231, 267, 345; Thompson, Magna Carta, 90–92.
[88. ] See especially Nigel Saul, Knights and Esquires: The Gloucestershire Gentry in the Fourteenth Century (Oxford, 1981), 6–29. There is further comment in J. C. Holt, Robin, 2d ed. (London, 1989), 116–23. The chronology of these linguistic changes is naturally difficult to establish in detail. The amendment to liber homo in the six statutes is not discussed in either of the above.
[89. ] Sir Edward Coke, The Second Part of the Institutes of the Laws of England, 1662 ed., 45.
[90. ]A Catalogue of the Library of Sir Edward Coke, ed. W. O. Hassall, pref. S. E. Thorne (New Haven, Conn., 1950), 42, “where History follows Divinity, Lawes of England and Civill Lawe.”
[91. ] Sir Edward Coke, The First Part of the Institutes of the Laws of England (1628), book II, chap. 2, sec. 108; The Second Part of the Institutes of the Laws of England, 1669 ed., Proeme and 45–57.
[92. ] See above, p. 55.
[93. ] “Libertates suas et antiquas consuetudines suas usitatas” (Curia Regis Rolls, 12, no. 2312); compare Magna Carta: “libertates et libere consuetudines quas prius habuerunt.”
[94. ]Curia Regis Rolls, 14, no. 1188.
[95. ] Holt, Magna Carta, 399–400.
[96. ] Thompson, The First Century, 65.
[97. ] Holt, Magna Carta, 418–28.
[98. ] Holt, Medieval Government, 14–16.
[99. ] Holt, Magna Carta, 423–24.
[100. ] Ibid., 93–95.
[101. ] G. S. Garnett, “Royal Succession in England 1066–1154” (Ph.D. thesis, Cambridge, 1988), for a part of which see “Coronation and Propaganda: Some Implications of the Norman Claim to the Throne of England in 1066,” Transactions of the Royal Historical Society, 5th ser., 36 (1986): 91–116.
[102. ] Holt, Medieval Government, 7–8; Emma Mason, “St. Wulfstan’s Staff: A Legend and Its Uses,” Medium Aevum 53 (1984): 157–79.
[103. ]Rotuli Litterarum Clausarum, I, 29. Among the vast literature on a topic necessarily in summary form here, see especially, J. S. P. Tatlock, The Legendary History of Britain (Berkeley, 1950).
[104. ] Gaimar, L’Estoire des Engleis, ed. A. Bell (Oxford, 1960), lines 6430–31, 6447–52.
[105. ] F. Liebermann, “A Contemporary Manuscript of the Leges Anglorum Londoniis collectae,” English Historical Review 28 (1913): 739.
[106. ]Statutes of the Realm, I, 223–25.
[107. ]Close Rolls 1231–4, pp. 32, 163–64.
[108. ] Holt, Medieval Government, 9–12.
[109. ]Catalogue, ed. Hassall, nos. 377, 610.
[110. ] This is examined more generally by Janelle Greenberg, “The Confessor’s Laws and the Radical Face of the Ancient Constitution,” English Historical Review 104 (1989): 611–37.
[111. ] Thompson, Magna Carta, 86.
[112. ] The question is framed in yet another context by J. S. A. Adamson, “The Baronial Context of the English Civil War,” Transactions of the Royal Historical Society, 5th ser., 40 (1990): 93–120.