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PART IV.: HISTORICAL SEQUEL TO MAGNA CARTA. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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HISTORICAL SEQUEL TO MAGNA CARTA.
Reissues and Confirmations of the Great Charter.
King John had accepted the reforms contained in Magna Carta unwillingly and insincerely; but the advisers of his son accepted them in good faith. Three reissues of the Charter were granted in 1216, in 1217, and in 1225, and these were followed by many confirmations. The scheme of this Historical Introduction is restricted to such facts as have direct bearing on the genesis and contents of John’s Charter. Yet no account of Magna Carta would be complete without some notice of the more important alterations effected in its text during the reigns of later kings.
(I.) Reissue of 1216. On 28th October, 1216, Henry of Winchester was crowned at Gloucester before a small assemblage.1 The young King took the usual oath as directed by the Bishop of Bath, and he also performed homage to the Pope’s representative Gualo; for the King of England was now a vassal of Rome.2 At a Council held at Bristol, on 11th November, William Marshal, Earl of Pembroke, was appointed Rector regis et regni; and, next day, the Charter was reissued in the King’s name. This was a step of extreme importance, marking the acceptance by those in power for the time being of the programme of the baronial opposition.
The Charter in its new provisional form was really a manifesto issued by the moderate men who rallied round the throne of the young King; it may be viewed in two aspects, as a declaration by the Regent and his co–adjutors of the policy on which they accepted office, and as a bid for the support of the barons who still adhered to the faction of the French prince. Its issue was, indeed, dictated by the crucial situation created by the presence in England of Prince Louis of France, supported by a foreign army and by a large faction of the English barons who had sworn homage to him as King. It was, therefore, framed in terms meant to conciliate such of the opposition as were still open to conciliation.
Yet the new Charter could not be a verbatim repetition of the old one. Vital alterations were required by altered circumstances.1 It was no longer an expression of reluctant consent by the government of the day to the demands of its enemies, but a set of rules deliberately accepted by that government for its own guidance. The chief tyrant against whom the original provisions had been directed was dead, and certain forms of tyranny, it was confidently hoped, had died with him. Restraints now placed on the Crown’s prerogatives would only hamper the free action of the men who framed them, not of their political opponents. The Regent, while willing to do much for the cause of conciliation, could not afford to paralyze his own efficiency at a time when foreign invaders were in possession of one–half of England, from which it would require a supreme effort to dislodge them. It was imperative that the government should retain a free hand in exacting feudal services and levying scutages.
Miss Norgate argues,2 somewhat unconvincingly, that the omission of chapters 12 and 14 was a concession to Gualo and the Holy See. Rome had regarded these provisions as dangerous innovations of so marked a kind as to justify the annulling of the Charter of 1215, and papal sanction could be obtained in 1216 only by their jettison. William Marshal, however, is not likely to have required external pressure: he naturally preferred to leave his own hands untied.
Yet the issue of the Charter under papal sanction, however obtained, was of material value to Henry’s cause. It had the immediate effect of bringing over eleven bishops to the young King’s side. M. Petit–Dutaillis1 sums up the situation in two propositions: the French invasion saved the Great Charter, and then papal support saved England from Louis.2
The Charter of 12163 is notable for its omissions, which may be arranged under five groups.4 (1) Restraints placed in 1215 on the taxing power of the Crown now disappeared. The chapters which forbade the King to increase the “farms” or fixed rents of the counties and hundreds, those which defined the King’s relations with the Jews, and those which restricted the lucrative rights derived from the rigorous enforcement of the forest laws, were discarded. An even more important omission was that of chapter 12, which abolished the Crown’s rights to increase feudal contributions arbitrarily, without consent of the Common Council.5
(2) No reference is made to John’s charter of May, 1215 to the Church, granting liberty of elections, although the vague declaration that “the English Church should be free” was retained. Chapter 42, allowing liberty to leave the kingdom, and to return without the King’s consent (a privilege chiefly valuable to the clergy in their intercourse with Rome) was entirely omitted: and the same is true of chapter 27, which had placed in the church’s hands the supervision of all distributions of chattels of men who had died intestate.1
(3) A great number of provisions of purely temporary interest disappeared, among them those providing for disbandment of mercenary troops and dismissal from office of obnoxious individuals.
(4) A number of omissions of a miscellaneous nature may be grouped together; for example, chapter 45, by which the Crown restricted itself in the choice of justiciars and other officers; the latter half of chapter 47, relating to the banks of rivers and their guardians; and some of the provisions affecting the forest laws.
(5) These alterations implied, incidentally rather than deliberately, the omission of such constitutional machinery as had found a place in John’s Great Charter. The twenty–five Executors fell with the other temporary provisions; while chapter 14, which defined the composition and mode of summons of the Commune Concilium, was omitted with chapter 12, to which it had formed a supplement.2
Magna Carta as granted by Henry is thus concerned with matters which lie within the sphere of private law, and contains no attempt to devise machinery of government or to construct safeguards for national liberties. The King’s minority implied a constitutional check, in the necessary existence of guardians, but when Henry III. attained majority, Magna Carta, deprived of its original sanctions, would, with the disappearance of the Regency, tend to become an empty record of royal promises. The machinery of government remained exclusively monarchic; the King, once out of leading–strings, would be restrained only by his own sense of honour and by the fear of armed resistance—by moral forces rather than legal or constitutional. The logical outcome was the Barons’ War.
The importance of the omissions is minimized by two considerations. (a) Many of the original provisions were declaratory, and their omission in 1216 by no means implied that they were then abolished. The common law remained what it had been previously, although it was not deemed advisable to emphasize those particular parts of it in black and white. In particular, throughout the reign of Henry, the Commune Concilium was always consulted before a levy was made of any scutage or aid. (b) It is stated in the new charter that the omitted clauses were reserved for further consideration. In the so–called “respiting clause” (chapter 42) six topics were thus reserved because of their “grave and doubtful” import: levying of scutages and aids; rights of Jews and other creditors; the liberty of going from and returning to England; the forest laws; the “farms” of counties; and the customs relating to banks of rivers and their guardians. This respiting clause amounts to a definite engagement by the King to consider at some future time (probably as soon as peace had been restored) how far it would be possible to re–enact the omitted provisions.1
A practical difficulty confronted the advisers of the young King. Neither law nor custom afforded precedents for the execution of documents during a king’s minority. The seal of a king was not available for his heir: the custom was to destroy the matrix when a death occurred, to prevent its being put to improper uses.1 Henry was made to explain that, in the absence of a seal of his own, the Charter had been sealed with the seals of Cardinal Gualo and of William Marshal, Earl of Pembroke, “rectoris nostri et regni nostri.”
In the Red Book of the Dublin Court of Exchequer there is a copy of an Irish version of this Charter,2 bearing to be executed at the same place and date as the English one (Bristol, 12th November, 1216). It is possible that it was not issued till some months later. After the coronation, the Marshal wrote to Geoffrey de Marsh, Justiciar of Ireland, promising to send a confirmation to the Irish of the liberties just granted to Henry’s English subjects.3 It was not till 6th February, 1217, that this promise was fulfilled by the sending of an Irish version of the Charter, in the King’s name, as a reward to his Irish subjects for their fidelity.4 If this is the original transcribed into the Red Book, it would seem to have been antedated by nearly three months; while its terms suggest that little trouble was taken to adapt the purport of the English Charter to Irish needs: four perfunctory alterations substitute the freedom of the Irish Church for that of the English Church; the liberties of Dublin for those of London; prohibit weirs in the Liffey, instead of the Thames and Medway; and make the “quarter of Dublin,” not of London, the measure of corn. The value of the grant must have lain rather in the principle involved than in the phraseology of particular clauses.
(II.) Reissue of 1217. The effect of the new Charter in England was disappointing: apart from the bishops, only four submissions were made to Henry in three months.1 The vicissitudes of the war need not be traced: on 19th May, 1217, the royalists gained a decisive victory at the battle known as the “Fair of Lincoln”; and, on 24th August following, Hubert de Burgh destroyed the fleet on which Louis depended. The French prince was glad to accept honourable terms. Negotiations, beginning on the 8th, resulted, on 12th September, 1217, in the Treaty of Lambeth or Kingston. “The treaty of Lambeth is, in practical importance, scarcely inferior to the charter itself.”2 It marked the final acceptance by the advisers of the Crown of the substance of Magna Carta as the permanent basis of government for England in time of peace, not merely as a provisional expedient in time of war. Its terms were equally honourable to both parties: to the Regent and his supporters, because of the moderation they displayed; and to Louis who, while renouncing all claim to the English Crown, did so only on condition of a full pardon to his lay allies, and a guarantee of the principles they fought for. He strove in vain to make better terms for the clergy, who were left exposed to Gualo’s vindictive greed.3
It must have been an impressive scene when, on 12th September, at an eyot in the Thames near Kingston, between rival armies lining opposite banks, Louis (who had already granted a confirmation of the substance of John’s Charter) and Henry, laying their hands on the Gospels, swore with the Legate and the Marshal to restore to the barons of England and all other men of the realm their rights and heritages, with the liberties formerly demanded.4 Henry promised to pay to Louis 10,000 marks nominally as an indemnity for his expenses, an amount partly raised by a scutage of two marks “ad Angliam deliberandam de Francis.”1 Louis, on his side, restored all cities, lands and property taken by him in England. One version of the treaty mentions particularly the Rolls of Exchequer, charters of the Jews, charters of liberties made in the time of King John, and all other exchequer writings.2 The restoration of rights and liberties by Henry was the main provision of the treaty, and this was fulfilled on 6th November, 1217, by the issue of a revised Charter of Liberties and a separate Forest Charter.3
The issue of these two Charters put the coping stone to the general pacification. After the havoc wrought by two years of civil war, the moment had come for a declaration by the Regent of his policy for ruling an England once more at peace. Not only was he bound in honour to this course by the Treaty of Lambeth, but the opportunity was a good one for fulfilling the promise made in chapter 42 of the Charter of 1216. Accordingly the respiting clause of that document disappeared, and some new clauses took its place. The matters then reserved for further discussion as “gravia et dubitabilia” had now been reconsidered and were either finally abandoned, or accepted with or without amendment. Of the six topics “respited” in 1216, one (concerning forests and warrens) was dealt with in the Forest Charter which took the place of chapters 36 and 38 of 1216 and of the omitted provisions of 1215; two others (concerning scutage and enclosure of rivers) formed the subjects of special chapters (44 and 20 respectively); while the remaining three (the rights of Jews, free egress from and ingress to England, and the “farms” of shires) were not mentioned, although some of the grievances involved may have been indirectly affected by certain newly added chapters (e.g. that which regulated the times of meeting of shire and hundred courts) or by the “saving clause” in chapter 42.
To take the chief alterations in the order in which they occur,1 chapter 7 of 1217 defines further a widow’s rights of dower; chapters 13, 14 and 15 alter the procedure for taking the three petty assizes; chapter 16 makes it clear that the King’s villeins do not share in the protection from harsh amercement; chapter 20, as already mentioned, treats of river enclosures; chapters 23 and 26 treat of purveyance, the former extending the term of payment allowed to Crown officials, the latter exempting entirely the carts of people of the better classes—“parsons,” knights and ladies. The two provisions, taken together, speak eloquently against the “democratic” interpretation of the Charter. Chapter 34 further limits or defines Crown bailiffs’ rights in regard to legal tests or “trials” where there is no evidence except their own unsupported testimony; chapter 38 makes clear a previously doubtful point concerning the King’s rights over escheats. Chapters 39, 42, 43, 44 and 46 will immediately receive separate discussion; while chapter 47 ordains “of common counsel” the demolition of all “unlicensed” strongholds built or rebuilt since the outbreak of the war between John and his barons.
Chapter 44, generally regarded as replacing chapter 12 of 1215, declares that scutages should be taken in future as they had been wont to be taken under Henry II. If, as has already been suggested, the scutage question was the immediate cause of the revolt of 1215, the importance and difficulty of this subject are obvious. Professor Adams1 thinks that the leaders in 1217, at their wits’ end for a solution, fell back on a vague, non–committal formula as “an effort of despair.” Yet the old rates of scutage could still be read in the Exchequer Rolls, and the practice of a reign that had closed only twenty–six years before must have been familiar to many others besides the aged Marshal who set seal to the Charter. In reality John’s innovations were now swept away; these included the habit of making an annual tax of what was meant for special emergencies, the assessment under the Inquest of 1212, the demand for scutage and service cumulatively, and, above all, the high rate of three marks per knight’s fee.2
The essence of the barons’ demands in 1217 must undoubtedly have been the return to the normal maximum rate of 2 marks. The substitution of this reference to the usage of Henry for the discarded chapters 12 and 14 of John’s Charter (which made “common consent” necessary for all scutages, whatever the rate) was a natural compromise; and the barons in agreeing to it were justified in thinking, from their own medieval point of view, that they were neither submitting to unfair abridgments of their rights, nor yet countenancing reactionary measures hurtful to the growth of liberty.3 Yet when this alteration is viewed by modern eyes, in the light cast by the intervening centuries of constitutional progress, the conclusion suggests itself that, unconsciously, retrograde tendencies were at work. All mention of the Commune Concilium—that predecessor of the modern Parliament, that germ of all that has made England famous in the realm of constitutional laws and liberties—disappears. If (as it was once the fashion to maintain) the control of taxation by a national assembly, the conception of representation, and the indissoluble connection of these two principles with each other, really found place in Magna Carta in 1215, they were ejected in 1216, and failed to find a champion in 1217 to demand their restoration.
A modern statesman, with a grasp of constitutional principles, would have seized the occasion of the revision of the Charter, to define the functions of the Great Council with precision and emphasis. He would not lightly have thrown away the written acknowledgment implied in chapters 12 and 14 of 1215—in the germ, at least—of the right of a national council to control the levying of taxes. The magnates in 1217 were content, however, to abandon abstract principles; they were selling, not indeed their birthright, but their best means of gaining new rights from the Crown, for “a mess of pottage.”
Such considerations, however, must not be pressed too far: no one seriously thought in 1217, any more than in 1216, of dispensing with future meetings of the feudal tenants in Commune Concilium. Great Councils continued to meet with increasing frequency throughout the reign of Henry III., and the consent of the magnates was habitually asked to scutages even at a lower rate than that which had been normal in Henry II.’s reign. Sometimes such consent was given unconditionally: sometimes in return for a new confirmation of the Charters; sometimes a demand was met by absolute refusal—the first distinct instance of which seems to have occurred in January, 1242.1
Chapters 39, 42 and 43, treating of topics not mentioned in John’s Charter, fall (strictly considered) outside the scope of this treatise, but a short account of their main provisions may prove useful here. Chapter 42, from its possible connection with the omitted chapter 25 of 1215, may be taken first. The shire court is not to meet oftener than once a month; less often, where local custom so ruled it. No sheriff or bailiff is to make his tourn through the hundreds oftener than twice a year—after Easter and after Michaelmas respectively—and only in the accustomed places. Careful provision is made for holding view of frankpledge at Michaelmas, with due regard to “liberties” upon the one hand, and to the King’s peace and keeping the tithings full upon the other. Finally, the sheriff is not to make “occasions,” but shall content himself with what he used to have for holding view of frankpledge in Henry of Anjou’s time—a reference, it would seem, to that “Sheriff’s aid” which was the cause of a famous quarrel in 1163 between Henry and his recently appointed Archbishop, Thomas à Becket.1
Chapters 39 and 43 link themselves rather with the future than the past, showing that new problems were thrusting themselves to the front since the days of John—topics round which much controversy was to rage. These chapters anticipate the principles underlying two famous measures of Edward’s reign: the statutes of Quia Emptores2 and of Mortmain.3 Chapter 39 forbade for the future that any freeman should give away or sell so much of his land as would not leave sufficient to furnish the service due from the fief to the feudal lord.
Chapter 43 marks the growing hostility against the accumulation by the monasteries of wealth in the form of landed estates. The times were not ripe for a final solution of this problem, and the charter only attempted to remedy one of the subsidiary abuses of the system, not to abolish the main evil. An ingenious expedient had been devised by lawyers to enable tenants to cheat their lords out of some of the lawful feudal incidents. Religious houses made bad tenants, since, as they never died, the lord of the fief was deprived of wardship, relief, and escheat. This was not unfair, provided the transaction was bona fide. Sometimes, however, collusive agreements were made, whereby a freeholder bestowed his lands on a particular house, which then subinfeudated the same subjects to the original tenant, who thus got his lands back, but now became tenant of the church, not of his former lord. The lord was left with a corporation for his tenant; and all the profitable incidents would, under the new arrangement, accrue to the church. Such expedients were prohibited, under pain of forfeiture, by chapter 43 of the reissue of 1217; and this prohibition was interpreted liberally by the lords in their own favour.1
The only remaining provision that calls for comment is the “saving clause” in chapter 46, intended, perhaps, to cover the gaps left in the Charter as conceived in 1215, by the decision not to restore some of the dubitabilia of 1216: this chapter reserves to archbishops, bishops, abbots, priors, templars, hospitallers, earls, barons, and all other persons, cleric and lay, the liberties and free customs they previously had. The vagueness of this provision deprived it of value.
These were the main alterations made in 1217 in the tenor of the Great Charter. This reissue is of great importance, since it represents practically the final form taken by the Charter. On 22nd February, 1218, copies of the Great Charter, in this new form, were sent to the sheriffs to be published and enforced. In the writs accompanying them, the special attention directed to the clause against unlicensed castles shows the importance attached to their demolition.2 These remained in 1217, as in 1154, a result of past civil war, and a menace to good government in the future. It was the aim of every efficient ruler to abolish all fortified castles—practically impregnable in the thirteenth century when artillery was unknown—except those of the King, and to see that royal castles were under command of castellans of approved loyalty. John had placed his own strongholds under creatures of his own, who, after his death, refused to give them up to his son’s Regent. The attempt to dislodge these soldiers of fortune, two years later, led to new disturbances in which the famous Falkes de Breauté played a leading part.1 The destruction of “adulterine” castles and the resumption of royal ones were both necessary accompaniments of any real pacification.
Attempts have been made to estimate the motives and forces at work in these considerable changes in the text of the revised Charter. Attention to minute points of detail in practice and phraseology are rightly held to indicate a return towards more normal conditions under which “problems of everyday government” and the more accurate statement of the law receive attention.2 The new Charter, in its desire to profit by the actual experience of the past two years, has some analogy to a modern amending statute. Other alterations, however, of a more fundamental nature would seem to have been deliberately made; and, as changing the old customs of the realm, they are of a legislative character in the strictest sense. Evidence of pressure from the baronage, in pursuance of their own selfish interests, can be traced in some at least of these innovations; but, on the other hand, the destruction of their “adulterine” castles shows that there were limits to their power.
The sincerity with which Magna Carta, thus amended, had been accepted by those in power is shown by the issue, seven months later, of letters to the sheriffs ordering them to publish the Charter in their shires and see that it was put in force; while orders were also given to respect the franchises of the city of London.3
(III.) Reissue of 1225.4 Henry’s second Charter, like his first, had been authenticated by the seals of the Legate and the “Rector.” The objection to providing a seal of Henry’s own was that it might be used to prejudice the royal prerogatives by alienating Crown lands and franchises during the King’s minority. But, shortly before Gualo left England, his task as Legate well done, instructions were given to a goldsmith to prepare a royal seal of silver, 5 marks in weight. Apparently the first use to which it was put was to attest letters patent, issued after Michaelmas, 1218, warning all men that no grant in perpetuity was to be sealed with it till the King came of age.1
The full twenty–one years would not be completed until 1st October, 1228; but by letters dated 13th April, 1223, Pope Honorius declared his ward to be of full age under certain reservations. A few months earlier (30th January, 1223) consternation had been created by writs issued in the King’s name to the sheriffs for a sworn inquest as to the customs and liberties enjoyed by John in the various shires, before the war; and Henry’s advisers thought it prudent to issue second writs on 9th April ordering that the results of the inquest should be held back till 25th June, and disclaiming all intention of raising up “evil customs.”2
It was not, apparently, until December, 1223, that the Pope’s declaration of the partial ending of Henry’s nonage was given effect to, with consent of the Council; and on 13th January, 1224, Henry was asked by Stephen Langton for a new confirmation of the Charters.3 In the ensuing debate, William Brewer answered for the King: “The liberties you ask ought not to be observed of right, because they were extorted by force,” words which, coming from a royal favourite, were sufficient to justify suspicion. When the Archbishop had rebuked this rash adviser: “William, if you loved the King, you would not endanger thus the peace of his realm,” the young King said: “We have all sworn these liberties, and what we have sworn we are bound to keep.”1
No formal charter seems at this time to have been granted; but the barons’ opportunity came in December of the same year, when Henry’s necessities forced him to demand a contribution of one–fifteenth of moveables. A bargain on these terms was struck, and on 11th February, 1225, the Charter of Liberties and the Forest Charter were both reissued.2 The new Forest Charter was practically identical with that issued in 1217; while the alterations in the new Charter of Liberties were the result of a determination to place on record the circumstances in which it had been granted. In the preamble Henry stated that he acted “spontanea et bona voluntate nostra” and all reference to consent was omitted, although many magnates appear as witnesses. These alterations were intended to emphasize the fact that no pressure had been brought to bear, and thus to meet the objection urged by Brewer in 1224, that the Charter had been extorted by force.3
The “consideration” also appears in the concluding portion of the Charter, where it is stated that in return for the foregoing gift of liberties along with those granted in the Forest Charter, the archbishops, bishops, abbots, priors, earls, barons, knights, free tenants, and all others of the realm had given a fifteenth part of their moveables to the King.
The prominence given to this feature brings the transaction embodied in the reissue of 1225 (as compared with the original grant of 1215) one step nearer the legal category of “private bargain.” In another important new clause—founded probably on a precedent taken from chapter 61 of John’s Charter—Henry is made to declare: “And we have granted to them for us and our heirs, that neither we nor our heirs shall procure any thing whereby the liberties in this charter shall be infringed or broken; and if any thing shall be procured by any person contrary to these premises, it shall be held of no validity or effect.” This provision was clearly directed against future papal dispensations; the clause, however, was diplomatically made general in its terms.1
One original copy of this third reissue of the Great Charter is preserved at Durham with a still perfect impression of Henry’s recently made seal in green wax, though the parchment has been “defaced and obliterated by the unfortunate accident of overturning a bottle of ink.”2 A second original is to be found at Lacock Abbey, in Wiltshire. The accompanying Forest Charter is also preserved at Durham.3
This third reissue brings the story of the genesis of the Great Charter to an end. It marked the final form assumed by Magna Carta; the identical words were then used which afterwards became stereotyped and were confirmed, time after time, without further modification. It is this Charter of 1225 which (in virtue of the confirmation of Edward I.) still remains on the statute book.4
Henry, however, was not yet, in 1225, fully of age; and suspicions seem still to have been entertained as to what would be his attitude when he became of full age for all purposes. It was apparently in January, 1227, that the Council authorized the King to issue writs to his sheriffs that all grants of lands, tenements, or liberties, to be held valid, must be confirmed under Henry’s seal. Writs in these terms went forth on 21st January. This was tantamount to an official declaration that the minority was ended.1
Under feudal theory, the close personal relations between lord and vassal had to be renewed when a death occurred: every new King exacted payments for confirmation of earlier grants, and Henry’s previous recognitions had been provisional. The King was enunciating no general doctrine of contempt for vested interests: his abuse of power lay in the exorbitant sums charged for charters confirming earlier, informal “precepts.”2 There is no substantial ground for the opinion, once widely held,3 that the King intended to annual the Great Charter, and that, accordingly, it was not in force from 1227 to 1237. Nor, in the instructions to the sheriffs, is there a word said about the Forest Charter. Henry, indeed, dared not openly repudiate either of the Charters, which had received full papal authority.
Yet he was far from scrupulous in observing the letter of their provisions: there was good warrant for the complaint contained in article 7 of the Petition of 1258,4 that Henry broke his bargain, by extending the forests beyond the boundaries to obtain which the fifteenth had been paid. The process was begun by the issue of letters close, on 9th February, 1227.5 Henceforward, Henry’s attitude towards the charters was a settled one: he confirmed them with a light heart when he could obtain money in return, and then acted as though they did not exist.
(IV.) Confirmations (1237 to 1297). After the close of Henry’s minority history is concerned not with reissues of the Charter but with confirmations. Matthew Paris refers to the circumstances under which the first of these was executed on 28th January, 1237: as the express condition of a grant of “a thirtieth part of the kingdom, to wit of all moveables,” Henry promised that thenceforward the “libertates Magnae Cartae” should be inviolably observed.1 This Charter differs fundamentally from those of 1215, 1216, 1217 and 1225. It does not rehearse the substance of any one of the “liberties” it confirms, but contents itself with a brief reference: “We have granted and by this our charter confirmed . . . all liberties and free customs contained in our charters which we caused to be made to our subjects during our minority, to wit as well in magna carta nostra as in carta nostra de foresta.”2 Even with the long list of witnesses, occupying half of its extent, this document is a small one when compared with the voluminous parchments of earlier grants. It has been suggested3 that the marked contrast in size may have given rise to the practice of alluding to the earlier charter (whether of John or Henry) as Magna Carta, in distinction from the new parva carta.4
In support of the suggestion, it may be argued that the phrase “Magna Carta” is never used by Roger of Wendover, and that its first appearance in the narrative of Matthew Paris is in the passage just quoted, sub anno 1237, “carta libertatum” being the usual description. The words ”Magna Carta” appear a second time in his account of a famous debate in 1242,5 where pointed reference is made to the bargain struck in 1237, when Henry conceded the liberties contained in “Magna Carta” in return for the thirtieth of moveables “et inde fecit eis quandam parvam cartam suam.” The antithesis is here emphatic.
The adoption of this parva carta means that the Charter had become stereotyped as it stood in 1225, and no longer moved with the times. For ten years previous it had, like a living thing, adapted itself to changing needs and grievances. The new style possibly corresponds with a new attitude on the part of both King and barons. Henry had abandoned any intention of repudiating the Charter or even of infringing its specific promises as to wardships, reliefs or the like: his practice was to evade its spirit, while observing its letter. The opposition, on their part, may unconsciously have come to consider the Charter’s value to lie, not in its specific clauses, but in its assertion of the existence of a fixed body of law to which successful appeal could be made against the King’s caprice. Changes in the texture of that law are no longer reflected in reaffirmations of the Charter; but must be sought for in a series of supplementary documents such as those of 1258, 1297, 1300, 1311, 1406 and 1628.
After 1237 little is heard of the charters until 1253, when complaint was raised of infractions, particularly in regard to the privileges of the Church. Both charters were republished, and on 13th May, the sentence of excommunication, which had accompanied the reaffirmations of 1225 and 1237, was repeated in a peculiarly impressive manner.1
In 1265 Simon de Montfort, during his brief period of power, exacted from Henry and his son a new confirmation, dated 14th March, notable for its clause empowering “all of the realm to rebel against us and use their utmost resources and efforts to our hurt” in imitation of chapter 61 of John’s grant. After Simon’s overthrow and death, the King and the young Edward, of their own initiative, affirmed the charters by chapter five of the Statute of Marlborough (1267). Of the confirmations of Edward’s reign, it is only necessary to mention the emphatic Confirmatio Cartarum of 1297, accompanied by an Inspeximus of the issue of 1225, granted under conditions that are well known. It contains new clauses which impose restrictions on the taxing power of the Crown; and these, to some extent, take the places of those chapters (12 and 14) of the original grant of John, which had been omitted in all intervening grants.
Of later confirmations, Coke1 has counted 15 under Edward III., 8 under Richard II., 6 under Henry IV. and one under Henry V. Of these, only the statute of 1369 (42 Edward III. c. 1) requires special notice: it commands that “the Great Charter and the Charter of the Forest be holden and kept in all points, and if any statute be made to the contrary that shall be holden for none.” Parliament in 1369 thus sought to deprive future Parliaments of the power to effect any alterations upon the terms of Magna Carta. Yet, if Parliament in that year had the power to add anything, by a new legislative enactment, to the ancient binding force of the Great Charter, it follows that succeeding Parliaments, in possession of equal powers, might readily undo by a second statute what the earlier statute had sought to effect. If Parliament had power to alter the sacred terms of Magna Carta, it had power to alter the less sacred statute of 1369 which declared it unalterable. The terms of that statute, however, are interesting as perhaps the earliest example on record of the illogical theory that the English Parliament might so use its present legislative supremacy as to limit the legislative supremacy of other Parliaments in the future.2
Magna Carta and the Reforms of Edward I.
The Great Charter, alike from its excellences and its defects, exercised a potent influence throughout the two succeeding reigns. It is hardly too much to say that the failure of Magna Carta to provide adequate machinery for its own enforcement is responsible for the protracted struggles and civil war that made up the troubled reign of Henry III.; while the difference of attitude assumed by Henry and his son respectively towards the scheme of reform it embodied, explains why one reign was full of conflicts and distress, while the other was prosperous and progressive. The fundamental difference between the policies of Henry and Edward lies in this, that while Henry, in spite of numerous nominal confirmations of Magna Carta, never loyally accepted the settlement it contained, Edward acquiesced in its main provisions honestly on the whole, with a sincere intention to carry them into practice.
At the same time, the attitude of Henry III. indicates an advance upon that of John. Henry, on attaining majority, had confirmed the charters freely and on his own intiative, and found himself thereafter unable openly to repudiate the bargain he had made. Yet the settlement between Crown and baronage was nominal rather than real: the King was bound by bonds of parchment which he could break at pleasure. In the absence of sanctions for its enforcement, the Charter became an empty expression of good intentions: no constitutional expedient existed to obviate a final recourse to the arbitrament of civil war. Thus, part of the blame for the recurring and devastating struggles of the reign of Henry must be attributed to the defects of the Great Charter.
The whole interest of the reign, indeed, lies in the attempts made to evolve adequate machinery for enforcing “the liberties.” Experiments of many kinds were tried in the hope of turning theory into practice. The system of government outlined in the Provisions of Oxford of 1258, for example, reproduced the defects of the scheme contained in chapter 61 of the Great Charter, and added new defects of its own. The baronial committee was not designed to enter into friendly co–operation with Henry in the normal work of government, but rather to supersede entirely certain of the royal prerogatives. No glimmering was yet apparent of the true solution afterwards adopted with success: it was not yet realized that the best way to control the Crown was through the agency of its own Ministers.
If Simon de Montfort had any vague conception of the real remedy for the evils of the reign, his ideals were overruled in 1258 by the more extreme section of the baronial party. Earl Simon, indeed, had one opportunity of putting his theories into practice: during the brief interval between the battle of Lewes, which made him supreme for the moment, and the battle of Evesham, which ended his career, he enjoyed an unfettered control; and some authorities find in the provisional scheme of the closing months of 1264, traces of the constitutional expedient afterwards successfully adopted as a solution of the problem. In one respect, the Earl of Leicester did influence the development of the English constitution; he furnished the first precedent for a true Parliament, reflecting interests wider than those of Crown tenants and free–holders, when he invited representatives of the boroughs to take their places by the side of representatives of the counties in a national council summoned to meet in January, 1265. His schemes of government, however, were not fated to be realized by him in a permanent form: the utter overthrow of his faction followed his decisive defeat and death on 4th August, 1265.
The personal humiliation of Simon, however, assured the ultimate triumph of the cause he had made his own. Prince Edward, from the moment of his brilliant victory at Evesham, was not only supreme over his father’s enemies, but also within his father’s councils. He found himself in a position to realize some of his political ideals; and he adopted as his own, the main constitutional conceptions of his uncle Earl Simon, who had been his friend and teacher before he became his deadliest enemy.
Edward Plantagenet, alike when acting as chief adviser of his aged father and after he had succeeded to his throne, not only accepted the main provisions of the Great Charter,1 but adopted also a new scheme of government which formed their necessary counterpart. The very fact of the adoption of Earl Simon’s ideals by the heir to the throne altered their chances of success. All such schemes had been foredoomed to failure so long as they emanated from an opposition leader, however powerful; but their triumph was assured when accepted by the monarch himself. Under the protection of Edward I.—the last of the four great master–builders of the constitution—the Commune Concilium of the Angevin kings grew into the English Parliament. This implied no sudden dramatic change, but a long process of adjustment, under the guiding hand of Edward.
The main features of his scheme may be briefly summarized: Edward’s conception of his position as a national king achieving national ends, the funds necessary for which ought to be contributed by the nation, led him to devise a system of taxation which would fill the Exchequer while avoiding unnecessary friction with the tax–payer. In broadening the basis of finance, he was led to broaden the basis of Parliament; and thus he advanced from the feudal conception of a Commune Concilium, attended only by Crown tenants, towards the nobler ideal of a national Parliament containing representatives of every community and every class in England. The principle of representation (foreshadowed in a vague way for centuries before the Conquest in English local government), now found a home, and, as it proved, a permanent home, in the English Parliament.
The powers of this assembly widened almost automatically, with the widening of its composition. To its original function of taxation, legislation was soon added. The functions of hearing grievances and of proffering advice had, even in the days of the Conqueror, belonged to such of the great magnates as were able to make their voices heard in the Curia Regis; and similar rights were gradually extended to the humbler members of the augmented assembly. The representatives of counties and towns retained rights of free discussion even after Parliament had split into two Houses. These rights, fortified by command of the purse strings, tended to increase, until they secured for the Commons some measure of control over the executive functions of the King, varying in extent and effectiveness with the weakness of the King, with his need of money, and with the political situation of the hour.
The new position and powers of Parliament logically involved a corresponding alteration in the position and powers of the smaller but more permanent council or Concilium Ordinarium (the future Privy Council). This had long been increasing in power, in prestige, and in independence, a process quickened by the minority of Henry III. The Council was now strengthened by the support of a powerful Parliament, usually acting in alliance with the leaders of the baronial opposition. The Council was recruited from Parliament, and the appointment of King’s ministers was influenced by the proceedings in the larger assembly.1
The Council thus became neutral ground on which the conflicting interests of King and baronage might be discussed and compromised. Wild schemes like that of chapter 61 of Magna Carta or that typified in the Committee appointed by the Mad Parliament of 1258, were now unnecessary. The King’s own ministers, backed by Parliament, became an adequate means of enforcing the constitutional restraints embodied in royal Charters. The problem was thus, for the time being, solved. The bargain made at Runnymede between the English monarch and the English nation found its counterpart and sanction, before the close of the thirteenth century, in the conception of a King ruling through responsible ministers and in harmony with a national Parliament. Edward Plantagenet, though merely the unconscious instrument by whose agency the new conception was for a time partially realized, yet merits the gratitude of posterity for his share in the elaboration of a working scheme of government which took the place of the clumsy expedients designed as constitutional sanctions in 1215. The ultimate triumph of the principles underlying Magna Carta was assured not through any executive committee of rebellious barons, but through the constitutional machinery devised by Edward Plantagenet.
[1 ]See Annals of Waverley, p. 286.
[2 ]For the question of the Regency and the position of England as a fief of Rome, see Norgate, Minority, 10–62; Turner, Trans. R.H.S. (1904), 268 ff. In a plea roll of 1237 (Bracton’s Notebook, No. 1219) Gualo is described as “quasi tutor domini regis et custos regni.”
[1 ]The cause for wonder is rather how few changes required to be made. “It is, however, by no means the least curious feature of the history, that so few changes were needed to transform a treaty won at the point of the sword into a manifesto of peace and sound government.” Stubbs, Const. Hist., II. 21.
[2 ]Minority, 15.
[1 ]See Petit–Dutaillis, Louis, 130–1.
[2 ]Ibid., 181.
[3 ]In the Appendix, an attempt is made to show at a glance the main differences between the various Great Charters.
[4 ]This classification takes no account of alterations merely verbal or inserted to remove ambiguities, e.g. cc. 22, 28, and 30 of the original Charter.
[5 ]See, however, Adams (Origin, 261; 220), who maintains that the omission was not intended to leave the Crown a freer hand (whatever might be the practical result).
[1 ]Are these omissions mainly accidental? Are they the result of some influence at work hostile to English ecclesiastics? Or, are they due to the personal wishes and ambitions of Gualo? The Legate may have preferred to keep the patronage of vacant sees in his own hands rather than confirm the rival rights of chapters. It is notable that when John made his peace with Rome, no suggestion of “free elections” was hinted at, whereas that concession was the essence of his charters to the English Church. Again, freedom of intercourse with Rome would facilitate appeals from the Legate to the Pope, and so diminish Gualo’s authority. In the months to follow, Gualo exercised almost despotic power over the Church, excommunicating all who supported Louis. On 27th October, 1217, he entered London, “went to the church of St. Paul, . . . and he put in new canons; and the old ones who had chanted the service in defiance of him he deprived of all their benefices.” Hist. des ducs, 206. See also Adams, Origin, 258. Honorius had conferred on Gualo authority to appoint to vacant sees and benefices; see Bouquet, XIX. 623.
[2 ]Minute points of difference, which are numerous, will be discussed under appropriate chapters of the Commentary. Cf. Norgate, Minority, 10–14; Adams, Origin, 256–7, who holds these changes to strengthen the theory “that in the original charter the barons intended to state the law accurately and were not trying to take unjust advantage of the King.”
[1 ]Dr. Stubbs propounds the theory that this reissue of 1216 represents a compromise whereby the central government, in return for increased taxing powers, allowed to the feudal magnates increased rights of jurisdiction. He gives, however, no reasons for this belief, either in Select Charters, p. 339, or in his Constitutional History, II. 27. The Crown reserved a freer hand in taxation, but there seems no evidence that feudal justice gained ground against royal justice in 1216, not already gained in 1215.
[1 ]It is unnecessary to invent a catastrophe to account for the loss of John’s seal. Blackstone (Great Charter, xxix.) says, “King John’s great seal having been lost in passing the washes of Lincolnshire.”
[2 ]On pp. 69–73. Text is given in Early Statutes of Ireland (Rolls Series, H. F. Berry), 5–19, and in Gilbert’s Hist. and Mun. Docs. of Ireland, 65–72.
[3 ]New Rymer, I. 145.
[4 ]Rot. Pat., I. 31. Cf. Norgate, Minority, p. 93: “On 6th February, 1217, a copy of the Charter was sent to Ireland with a letter in the King’s name addressed to all the King’s faithful servants in Ireland, expressing his desire that . . . they and their heirs should, of his grace and gift, enjoy the same liberties which his father and he had granted to the realm of England.” This was the Marshal’s policy.
[1 ]Davis, Engl. under Normans, 392.
[2 ]Stubbs, Const. Hist., II. 25.
[3 ]Petit–Dutaillis, Louis VIII., 171.
[4 ]Wendover, IV. 31–32; cited Norgate, Minority, 59, where full details are given.
[1 ]Pipe Rolls, 2 and 3 Henry III., cited Petit–Dutaillis, 177. Miss Norgate (Minority, 85) gives the rate per incuriam as “two shillings.”
[2 ]Martene and Durand, Thesaurus Novus Anecdotorum (1717), I. 858, cited Norgate, Minority, 59. Blackstone thinks that under this clause the original of the Articles of the Barons, captured by Louis with other national archives, was restored and deposited at Lambeth Palace until the seventeenth century. See Great Charter, xxxix.
[3 ]The Charter of Liberties of 1217, found among the archives of Gloucester Abbey and now in the Bodleian Library at Oxford, still bears the impression of two seals—that of Gualo in yellow wax, and that of the Regent in green. See Blackstone, Great Charter, p. xxxv. The existence of the separate Forest Charter was only surmised by Blackstone, Ibid., p. xlii; but, shortly after he wrote, an original of it was found among the archives of Durham Cathedral. For an account of this and of its discovery, see Thomson, Magna Charta, pp. 443–5. This Forest Charter bears the date 6th November, 1217, and that, in itself, affords presumption that the Charter of Liberties (undated) to which it forms a supplement was executed at the same time. M. Bémont accepts this date; see his Chartes, xxviii., and authorities there cited. Blackstone, Great Charter, xxxix., gives the probable date as 23rd September. Dr. Stubbs gives 6th November in Const. Hist., II. 26; and both dates alternatively in Sel. Chart., 344. Prof. Lawlor, Engl. Hist. Rev., XXII. 514–6, contended for two independent issues, one of each date; but Prof. Powicke’s researches, Eng. Hist. Rev., XXIV. 232, prove that there is only one genuine charter of that year, dated as in the text.
[1 ]Details are discussed infra, under appropriate chapters of John’s charter. The points in which this reissue differs from earlier and later charters are shown in the Appendix, in the footnotes to the text of 1225.
[1 ]Origin, 260.
[2 ]Pollock and Maitland, I. 250 n., suggest that this chapter absolved undertenants from the obligation of personal attendance in the army.
[3 ]Mr. Hubert Hall (Eng. Hist. Rev., IX. 344) takes a different view, considering that a reduction of scutages to the old rate of Henry II. was impossible; he speaks of “the astounding and futile concession in c. 44 of the charter of 1217.” The clause is neither astounding nor futile if we regard it as a promise by Henry III. that he would not exact more than two marks per fee without consent, and if we further note that it was the practice of his reign to ask such consent from the Commune Concilium for scutages even of a lower rate. A levy of 10s., for example, was granted by a Council in 1221. See Stubbs, Const. Hist., II. 33.
[1 ]M. Paris, 581–2; Sel. Chart., 369.
[1 ]Sel. Chart., 129.
[2 ]18 Edward I., also known as Westminster III.
[3 ]7 Edward I., also known as the Statute de religiosis.
[1 ]See Pollock and Maitland, I. 314.
[2 ]See Rot. Claus., I. 377.
[1 ]Stubbs, Const. Hist., II. 32.
[2 ]Cf. Adams, Origin, 258–260.
[3 ]New Rymer, I. 147, 150.
[4 ]See text in Appendix.
[1 ]See Norgate, Minority, 102; Stubbs, Const. Hist., II. 30. Annals of Waverley, 290, speak of a reissue of the charters about this date; but this probably results from confusion with what happened a year earlier.
[2 ]New Rymer, I. 168; Rot. Claus., I. 569.
[3 ]R. Wendover, IV. 84, who dates the demand a year earlier. Miss Norgate’s chronology is here followed (Minority, 215 n.). The request would be a natural corollary to the King’s coming of age. There may have been special reasons for uneasiness, e.g. the suspicions aroused by the recent inquest, the resumption of royal castles from their former wardens, and the Crown’s need of increased sources of taxation. See Adams, Origin, 281 n.; Turner, Trans. R.H.S., I. 205 ff. Miss Norgate (Ibid. 215) suggests that Langton desired some modification of the terms of the charter of 1217.
[1 ]R. Wendover, Ibid.
[2 ]Miss Norgate (Minority, 262), for reasons not fully explained, speaks of this purchasing of admitted rights by payments of hard cash as an “irretrievable blunder.” Does she not neglect, however, the effect of the legal doctrine of “valuable consideration” and the force underlying Brewer’s argument that earlier charters were voidable because granted under duress?
[3 ]Dr. Stubbs thinks that in avoiding one danger, a greater was incurred. “It must be acknowledged that Hubert, in trying to bind the royal conscience, forsook the normal and primitive form of legislative enactment, and opened a claim on the king’s part to legislate by sovereign authority without counsel or consent.” (Const. Hist., II. 37.) This seems to exaggerate the importance of an isolated precedent, the circumstances of which were unique. The confirmation was something far apart from an ordinary “legislative enactment.” It had been asked and paid for.
[1 ]A few minor alterations, such as the omission of the clause against unlicensed castles (now unnecessary) and some verbal changes need not be mentioned. A list of these is given by Blackstone, Great Charter, l.
[2 ]See Blackstone, Ibid., xlvii. to l.
[4 ]One slight exception should be noted. In one point of detail a change had occurred between 1225 and 1297; the rate of relief payable from a barony had been reduced from £100 to 100 marks. See infra, under chapter 2.
[1 ]A bull of Gregory IX., dated 13th April, 1227, confirmed this. See Blackstone, Great Charter, li., and Stubbs, Const. Hist., II. 39.
[2 ]See Powicke, Eng. Hist. Rev., XXIII. 221.
[3 ]R. Wendover, IV. 140, is apparently the source of the error. See Norgate, Minority, 266 n.
[4 ]Sel. Chart., 383.
[5 ]See Rot. Claus., II. 169. The best account is in Turner’s Select Pleas of the Forest, pp. xcix. to cii., who gives a full and convincing account of Henry’s procedure and motives. “The king neither repudiated the Charter of the Forest nor annulled the perambulations which had been made in his infancy. He merely corrected them after due inquiry.” See also Adams, Origin, 283 n.
[1 ]M. Paris, 435; Sel. Chart., 326–7.
[2 ]Its facsimile is given in Statutes of the Realm; its text in Sel. Chart., 365–6.
[3 ]By Dr. George Neilson, Juridical Review, XVII. 137.
[4 ]Henry I.’s charter was also described as “Magna Carta” but not till the thirteenth century. Leibermann, Trans. R.H.S., VIII. 21.
[5 ]M. Paris, 581–2; Sel. Chart., 369–370. Bracton’s Notebook (see its Index) mentions the Charter eight times under various descriptions, but never as the Great Charter.
[1 ]Blackstone, Great Charter, 70–72; Stubbs, Sel. Chart., 373.
[1 ]Second Institute, p. 1.
[2 ]Many further details will be found in Bémont, Chartes, xxx.–lxx., and authorities there cited.
[1 ]The best proof of this will be found in a comparison of Magna Carta with the statute of Marlborough, and the chief statutes of Edward’s reign, notably that of Westminster I.
[1 ]The doctrine that the Commune Concilium should have some voice in the appointment of Ministers had been acted upon on several occasions even in the reign of Henry III. See Stubbs, Const. Hist., II. 41.