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CHAPTER 3: THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION
Henry II was followed successively by his sons Richard I (1189-1199) and John (1199-1216), and his grandson Henry III (1216-1272). During these reigns every sort of strain was placed upon the administration and upon the infant common law. It is a great tribute to his work that they both survived. Richard was absent from the realm for almost the whole of his ten years’ reign; John was involved in disastrous war abroad, civil war at home, insurrection, invasion and interdict. Henry III was a child of nine at his accession, with only his mother’s bracelet for a crown, and yet a few great-hearted nobles, encouraged by the paternal interest of Pope Honorius III, spared the land most of the troubles which usually attended a minority in those days. And soon, by the middle of Henry’s reign, one of his judges, Henry de Bracton, was already preparing material for an immense and detailed treatise on the common law beside which the little book of Glanvill would seem a mere pamphlet, and he tells us that the best cases are those in the earlier years of the reign—so flourishing was the law even in those troubled times. The secret is surely to be found in the permanence of the administration established by the Norman kings, which withstood all these shocks, grew, prospered, and finally (as every administration must) became the parent of new law, and of new legal machinery.
THE POSITION OF THE CROWN
Then, too, the Crown through all these disasters survived the attempts of certain interests which would have reduced its power to ineffectual limits; on the other hand, the opposite tendency of the Crown to use the powerful machinery of government to institute a tyranny was likewise frustrated. And so, on a broad view, both the oppressions and the rebellions of the period appear as efforts to find and maintain the just mean between private liberty and public order, while through it all, steadily and constantly, proceeds the growth of better and more expert judicial institutions, and the development of more and more rules of law, and their organisation into a coherent legal system which already was beginning to separate from the purely administrative machinery of the realm. By the time we reach the second half of Henry III’s reign the judiciary is already distinct from the administration and can stand aside while the national leaders in arms assert the necessity of imposing restraint upon the speed and the direction of so dangerous an engine; while very soon, Parliament will appear with this as one of its main duties.
THE IDEAS OF HUBERT WALTER
Of all the threads which run through this period, many of them highly important, we shall here follow only one—the struggle for the charters. The absence of Richard I had shown that it was possible for the machinery to work without a king to direct it, provided that there was a trusty minister to take his place. The great Archbishop Hubert Walter took this rôle, and assisted by the great council of magnates ruled well, retaining his power into the next reign. The brilliant outburst of literature, art, law and general culture which marked the close of the twelfth century was accompanied by the development of an idea of government of which Hubert Walter1 was the embodiment.
“King John, in fact, felt with much truth that he was not his own master so long as his great minister was alive. Hubert Walter held the view, natural in an ecclesiastical statesman, that the kingship was an office invested with solemn duties. Royal power must be inseparable from the law. And the Archbishop’s prestige was so great that a word from him on the interpretation of the law could set aside the opinion of the King and his advisers.”2
His successor, Stephen Langton, whom Pope Innocent III forced John to accept, was of the same school, holding that “loyalty was devotion, not to a man, but to a system of law and order which he believed to be a reflection of the law and order of the universe”.3 Conflict was inevitable between such statesmen and John, whose life had been spent in constant turbulence, intrigue and treachery, with complete indifference to “those principles of harmony in life and nature which underlay all the current belief in justice and responsibility”.4 The rapid growth of the central administration and the development of the courts of law (which we shall consider in more detail later5 ) was only equalled by the growth of local government, of boroughs, of trade both internal and foreign, and the close co-operation of central and local authorities. Litigation, negotiations, compromises, definitions of official power, the statement of precise limits to all sorts of jurisdictions public and private, organisation between groups of towns and the elaboration of machinery for holding international representative chapters in certain religious bodies—these are all signs of the spirit of legal order which filled the opening years of the thirteenth century. It is from this standpoint that the events leading to Magna Carta must be considered.
JOHN AND THE POPE
John’s troubles opened with Innocent III’s refusal to permit his candidate to become Archbishop of Canterbury, the Pope substituting his own much better choice, Stephen Langton.1 The Great Interdict followed, to which John replied by confiscating Church property. The political thought on both sides of the struggle is clear. John regarded bishops as higher civil servants, and looked back to the old days when Church and State in England were mingled, the papacy weak, and the Church subservient to the Crown. Hence he was able to strike the attitude of a patriot against foreign meddling. Langton started by assuming the separate sphere of Church and State, attacked the shifty details of John’s recent conduct, and proclaimed that John’s vassals were not bound to him after he himself had broken faith with the King of Kings, arguing “as an exponent of feudal custom in the light of those high principles of law to which all human law should conform”.2 The conflict was thus one of fundamental principle. John poured out money in Europe to buy support, and built up an imposing coalition against the Pope’s ally, King Philip Augustus of France. Then, in his customary sudden manner, he abandoned all his plans, submitted to Rome and did homage to the Pope’s legate. The next year his allies were ruined in one of the most important battles of the middle ages (Bouvines, 1214). It was now time to reckon with the discontent aroused by the reckless oppression to which John had resorted during the Interdict. Archbishop Langton undertook to force the King to make amends, and produced the old Charter of Henry I as the basis of what was normal and just, adding a long list of more recent grievances. London opened its gates to the barons, and soon after the fifteenth day of June, 1215, John had to put his seal to the Great Charter.3
THE GREAT CHARTER
This is a long document of sixty chapters and represents the extreme form of the baronial demands. The next ten years saw the progressive shortening of the Charter by omitting much that was temporary, by putting the important clauses concerning the forests into a separate document (called the Charter of the Forest), and by pruning the excesses of the victorious barons. John obtained a bull from his new over-lord, the Pope, annulling the charter.1 Indeed, some of its provisions were much too extreme, particularly the last, which erected a commission of twenty-five barons with power to enforce the Charter by coercing the King. The Great Charter of 1215 was therefore actually law for only about nine weeks. The King died shortly after (1216).
The council who ruled in the name of the infant Henry III re-issued the charter in 1216 (this time with papal assent) very much modified in favour of the Crown, with a promise to re-open the question when the French invasion, undertaken at the will of the rebel barons, had been defeated. This promise they fulfilled in 1217 on the occasion of the treaty whereby Prince Louis withdrew, and this, the third, Great Charter contains “numerous, important, and minute” changes whose general tendency was again in favour of the Crown. It was felt that the boy King ought not to suffer for his father’s sins, and that the difficult period of a minority was no time to weaken the central government; in any case, it was a committee of nobles who actually ruled in Henry’s name and any limitation on his power would only make their task of governing the harder. Hence the successive compromises of 1216 and 1217. At length, in 1225, Henry III came of age and issued the fourth Great Charter which differed from the third in slight details only. This is the document which is still law (except in so far as it has been repealed) and is cited by the old authors as the charter or statute of the ninth year of Henry III. It was not enrolled until many years later when, in 1297, it was put on the statute roll (word for word, except one slight slip), and so is also sometimes cited as the statute Confirmatio Cartarum of 25 Edward I.2 On numerous later occasions during the middle ages it was solemnly confirmed and from that day to this has been held in the deepest respect both in England and in America. After all these revisions Magna Carta as it now stands on the statute books of common law jurisdictions is a sober, practical, and highly technical document. A complete understanding of all its provisions would require a whole volume upon numerous aspects of mediaeval law and administration; for our present purpose the following summary will suffice.3
“First, we have granted to God, and by this our present charter have confirmed for us and our heirs for ever, that the English Church shall be free and shall have all her rights and liberties, whole and inviolable. We have also given and granted to all the freemen of our realm, for us and our heirs for ever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs for ever (Chapter 1; note the formulas of a conveyance of real property which are here used).
“The City of London shall have all her old liberties and customs. And moreover we will and grant that all other cities, boroughs, towns . . . and ports shall have all their liberties and free customs” (Chapter 9).
“No freeman shall be taken or imprisoned, or disseised of his free tenement, liberties or free customs, or outlawed or exiled or in any wise destroyed, nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land. To none will we sell, deny, or delay right or justice” (Chapter 29). These words have provoked centuries of discussion. Originally, it seems, “the law of the land” covered all the usual modes of trial, whether it be by indictment, petty jury, appeal or compurgation. “Trial by peers”, on the other hand, was undoubtedly an importation from continental feudal law, and was the solemn trial of a vassal by his fellow-vassals in the court of their lord.1 It has always been rather rare, and is apt to have a political aspect. King John himself was tried by his peers in the court of King Philip of France who was his overlord in respect of the lands held by John in France. In certain cases an English peer could claim to be tried by members of the House of Lords, either in Parliament or in the Court of the Lord High Steward. As time went on the phrase was given a newer and wider meaning. We find for example that a knight accused of felony will claim successfully a jury composed of knights.2 Later still the notion will get abroad that “trial by peers” means trial by jury, which it certainly did not at the time when the charter was first made.
The Regulation of Feudal Incidents.
The numerous feudal incidents of relief, wardship, marriage, and the rights of widows, were regularised to prevent the oppression which had grown up during the reign of King John. These reforms applied also to the relations between the barons and their undertenants, and form the basis of a great deal of feudal law
(Chapters 2-6, 10).
Restraints on the Prerogative.
“The writ called praecipe shall not be used in the future to deprive any lord of his court”3 (Chapter 24). Purveyance and the forfeiture of lands for felony were likewise regulated
(Chapters 19, 21, 22).
The Regulation of the Courts.
“Common pleas shall not follow our court but shall be held in some certain place” (Chapter 11). The taking of the assizes was ordered for regular terms every year and was to be in the proper counties. Sheriffs was forbidden to hold pleas of the Crown. The County Court was also regulated and ordered to be held not more than once a month
(Chapters 11-14, 17, 28, 35).
The Law of Land.
The rights of widows were protected and landowners were forbidden to alienate so much of their land that the lord of the fee suffered detriment; and finally, collusive gifts to the Church (which were frequently made in order to evade feudal service) were forbidden
(Chapters 7, 32, 36).
Trade and Commerce.
The sureties of the King’s debtors were not to be liable until after the default of the principal debtor, and were to have the lands of the debtor until they were satisfied for what they had paid for him. There was to be one system of weights and measures throughout the land, and foreign merchants were to be allowed free entry except in war-time, their treatment depending upon the treatment of English merchants abroad
(Chapters 8, 25, 30).
From this it will be seen that the provisions of the Great Charter which became permanent were those of a practical nature, while the revolutionary machinery invented by the barons to supersede the Crown was quickly dropped as unworkable and contrary to the current of English history.
The Great Charter was by no means unique in European history. Many kings and nobles about this time were granting charters to their tenants and subjects, and their general character was not dissimilar even in different countries. It has even been suggested that Spanish influence can be traced in our own Charter.1 In 1222 Hungary obtained a very similar charter.2 The difference between the English Charter and these other documents lies not in its contents but in the use made of it in subsequent history. The Charter gradually grew bigger than the mere feudal details which it contained and came to be a symbol of successful opposition to the Crown which had resulted in a negotiated peace representing a reasonable compromise. As time went on, therefore, the Charter became more and more a myth, but nevertheless a very powerful one, and in the seventeenth century all the forces of liberalism rallied around it. The great commentary upon it by Sir Edward Coke in the beginning of his Second Institute became the classical statement of constitutional principles in the seventeenth century, and was immensely influential in England, America and, later still, in many other countries as well.3 To explode the “myth” of the Greater Charter is indeed to get back to its original historical meaning, but for all that, the myth has been much more important than the reality, and there is still something to be said for the statement that “the whole of English constitutional history is a commentary upon the Great Charter”.4
Its immediate result, apart from the reforms contained in it, was to familiarise people with the idea that by means of a written document it was possible to make notable changes in the law. Within the period of ten years, four successive charters had made numerous changes in law and procedure. Was not this an indication that many other difficult questions might be settled in a similar manner? And as a matter of fact we soon find a stream of legislation beginning to appear, which we shall describe later.
THE BARONS’ WARS
The rest of the reign of Henry III is notable chiefly for the revolt of the barons in 1258, which repeats the main outlines of the revolt against King John. The results also were similar. A revolutionary organisation was set up by the barons with the idea of reducing the Crown to complete powerlessness; and this, like the previous attempt in 1215, had soon to be abandoned. But in this later struggle the barons had been dependent to a considerable extent upon the assistance of smaller landowners who also had to be satisfied by a measure of reform. Recent work on this period has shown how largely it was concerned with legal problems, and to lawyers there are two especial reasons for studying the baronial revolt with care. First, it was the age of Bracton,1 who ceased to revise his great treatise just as the crisis approached; and secondly, it was the one occasion in English history when the laity carried out vi et armis an important and complicated programme of law reform. Its full significance can hardly yet be appreciated, but recent research has already shown that the development of the forms of action, and especially trespass, during this period is of importance,2 that the working of the law of seisin was also the cause of difficulty,3 and that the abuse of the lord’s right of extra-judicial distress—“the beginning of all wars,” as Simon de Montfort called it4 —was a problem of great urgency. Many of the reforms the victorious barons effected were continued after the fall of Simon de Montfort and became the Statute of Marlborough, 1267. Even before his accession Prince Edward took part in this post-war period of reconstruction, and the Statute of Marlborough is therefore really a part of the great programme of law reform which was carried out in the reign of Edward I.
Remember that it may be his hand which is concealed beneath the name of Glanvill in the first book of the common law. Above, p. 18.
Powicke in Cambridge Mediaeval History, vi. 218.
Ibid., 219. There is an admirable discussion of the mediaeval view of law by C. H. McIlwain, The Growth of Political Thought in the West (New York, 1932).
Ibid., 220; this chapter is full of insight into the mediaeval conception of law.
Below, pp. 139 et seq.
There is now available an excellent biography of this great statesman: F. M. Powicke, Stephen Langton (Oxford, 1928).
Powicke in Cambridge Mediaeval History, vi. 234.
See A. J. Collins, The Documents of the Great Charter of 1215, Proceedings of the British Academy, xxxiv. 233 ff. for a minute and illuminating discussion. The texts of the charters of 1215, 1216, 1217 and 1225 are all printed in Stubbs, Select Charters.
The legal aspect of Innocent III’s action is discussed by G. B. Adams in Magna Carta Commemoration Essays, 26-45 (reprinted in his Council and Courts in Anglo-Norman England, 353-372).
On the absence of early enrolments of the Great Charter see V. H. Galbraith, Studies in the Public Records, 139 ff.
The traditional views are expressed in Coke’s commentary in the Second Institute; the modern learning is in McKechnie, Magna Carta (2nd edn.).
Powicke in Magna Carta Commemoration Essays, 96-121.
Y.B. 30 & 31 Edward I (Rolls Series), 531.
As to this, see below, p. 357.
Altamira in Magna Carta Commemoration Essays, 227-243.
It is translated in Sayous, Histoire générale des Hongrois (1900), 116-121.
See Hazeltine, The Influence of Magna Carta on American Constitutional Development (Magna Carta Commemoration Essays), 180-226; also in Columbia Law Review, xvii. (1917).
For the “myth” and the historical interpretations, see A. L. Cross, An Unpopular Seventeenth-century View of Magna Carta, in American Historical Review, xxix. 74 (1923), and E. Jenks, The Myth of Magna Carta, in Independent Review, vi. 260 (1904). The posthumous history of the charter has been traced in two works by Faith Thompson, The First Century of Magna Carta (1925), and Magna Carta, its role in the making of the English Constitution, 1300-1629 (1948).
Of Bracton we shall speak later, pp. 258 ff.
This suggestion was made by E. F. Jacob, Studies in the Period of Baronial Reform (1925), xii, 108 ff., 115.
Plucknett, Statutes and their Interpretation (1922), 100. The whole period is admirably discussed in R. F. Treharne, The Baronial Plan of Reform (1932), and Sir Maurice Powicke, Henry III and the Lord Edward (1947).
C. Bémont, Simon de Montfort (ed. E. F. Jacob), 77.