The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Second Edition.
• From Preface to First Edition.
• Historical Introduction
• Part I.: Events Leading to Magna Carta.
• Part II.: Feudal Grievances and Magna Carta.
• Part III.: Magna Carta: Its Form and Contents.
• Part IV.: Historical Sequel to Magna Carta.
• Part V.: Magna Carta: Original Versions, Printed Editions and Commentaries.
• Text, Translation, and Commentary
• Preamble.1
• Chapter One.
• Chapter Two.
• Chapter Three.
• Chapter Four.
• Chapter Five.
• Chapter Six.
• Chapter Seven.
• Chapter Eight.
• Chapter Nine.
• Chapter Ten.
• Chapter Eleven.
• Chapter Twelve.
• Chapter Thirteen.
• Chapter Fourteen.
• Chapter Fifteen.
• Chapter Sixteen.
• Chapter Seventeen.
• Chapter Eighteen.
• Chapter Nineteen.
• Chapter Twenty.
• Chapter Twenty–one.
• Chapter Twenty–two.
• Chapter Twenty–three.
• Chapter Twenty–four.
• Chapter Twenty–five.
• Chapter Twenty–six.
• Chapter Twenty–seven.
• Chapter Twenty–eight.
• Chapter Twenty–nine.
• Chapter Thirty.
• Chapter Thirty–one.
• Chapter Thirty–two.
• Chapter Thirty–three.
• Chapter Thirty–four.
• Chapter Thirty–five.
• Chapter Thirty–six.
• Chapter Thirty–seven.
• Chapter Thirty–eight.
• Chapter Thirty–nine.
• Chapter Forty.
• Chapter Forty–one.
• Chapter Forty–two.
• Chapter Forty–three.
• Chapter Forty–four.
• Chapter Forty–five.
• Chapter Forty–six.
• Chapter Forty–seven.
• Chapter Forty–eight.
• Chapter Forty–nine.
• Chapter Fifty.
• Chapter Fifty–one.
• Chapter Fifty–two.
• Chapter Fifty–three.
• Chapter Fifty–four.
• Chapter Fifty–five.
• Chapter Fifty–six.
• Chapter Fifty–seven.
• Chapter Fifty–eight.
• Chapter Fifty–nine.
• Chapter Sixty.
• Chapter Sixty–one.
• Chapter Sixty–two.
• Chapter Sixty–three.
• Appendix. Documents Relative To, Or Illustrative Of, Magna Carta.
• I.: The Charter of Liberties of Henry I.1 (1100.)
• II.: The Second Or Oxford Charter of Stephen.1 (1136.)
• III.: Charter of Henry II.1 (circa 1154.)
• IV.: The So–called “unknown Charter of Liberties” of John.2 (circa 1214–1215.)
• V.: The Articles of the Barons.1 (1215.)
• VI.: Writs Supplementary of John’s Great Charter.
• VII.: The Great Charter of Henry III.2 (third Reissue, 11th February, 1225.)
• VIII.: Carta De Foresta.1 (6 November, 1217.)

CHAPTER ONE.

In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas; et ita volumus observari; quod apparet ex eo quod libertatem electionum, que maxima et magis necessaria reputatur ecclesie Anglicane, mera et spontanea voluntate, ante discordiam inter nos et barones nostros motam, concessimus et carta nostra confirmavimus, et eam obtinuimus a domino papa Innocencio tercio confirmari; quam et nos observabimus et ab heredibus nostris in perpetuum bona fide volumus observari.3 Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et heredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas eis et heredibus suis, de nobis et heredibus nostris.

In the first place we have granted to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III., before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs for ever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.

This first of the sixty–three chapters of Magna Carta places side by side, bracketed equal as it were, (a) a general confirmation of the privileges of the English church, and (b) a declaration that the rights to be afterwards specified were granted “to all freemen” of the kingdom and to their heirs for ever. The manner of this juxtaposition of the church’s rights with the lay rights of freemen, suggests an intention to make it clear that neither group was to be treated as of more importance than the other. If the civil and political rights of the nation at large occupy the bulk of the Charter, and are defined in their minutest details, the church’s rights receive a prior place.1 A twofold division thus suggests itself.

I.

The Rights of the Church.

A general promise that the English church should be free was accompanied by specific confirmation of the separate charter, guaranteeing freedom of canonical election, granted on 21st November, 1214.

(1)

Quod Anglicana ecclesia libera sit.

This emphatic declaration, which has no counterpart in the Articles of the Barons, is repeated twice in Magna Carta, at the beginning and the end respectively. If the original scheme of the barons showed no special tenderness for churchmen’s privileges, Stephen Langton and his bishops were careful to have that defect remedied. It is interesting to note that, where the charters of Henry II. and earlier Kings spoke of “holy church,” Magna Carta speaks of “ecclesia Anglicana.” When English churchmen found that the tyrant, against whom they made common cause with English barons and townsmen, received sympathy and support from Rome, the conception of an English church that was something more than a mere branch of the church universal, began to take clearer shape. The use of the words ecclesia Anglicana may indicate, perhaps, that under the influence of Stephen Langton, English churchmen were beginning to regard themselves as members of a separate community, that looked for guidance to Canterbury rather than to Rome. John was now the feudal dependent of the Holy See, and the “liberty of the English church” had to be vindicated against the King and his lord paramount: the phrase had thus an anti–papal as well as an anti–monarchical bearing.

In promising that the English church should be free, John used a phrase that was deplorably vague; it scarcely needed stretching, to cover the widest encroachments of clerical arrogance. Yet the formula was by no means a new one: both Henry I. and Stephen had confirmed the claim of holy church to its freedom.1

Henry II. had agreed in 1173 to give greater freedom of elections, and in 1176 that he would not keep sees vacant for longer than one year,2 but avoided sweeping promises of unlimited freedom. His whole reign, indeed, was an effort, not unsuccessful, in spite of the disastrous consequences of Becket’s murder, to deprive the English church of what she considered her freedom. John in 1215 receded from the ground occupied by his father, confirming by the Great Charter the promise given by the weakest of his Norman predecessors, in a phrase repeated in all subsequent confirmations.

It by no means follows that “freedom of the church,” as promised by Stephen, meant exactly the same thing as “freedom of the church” promised by John and his successors. The value to be attached to such assurances varied in inverse ratio to the strength of the Kings who made them, and this is well illustrated by a comparison of the charters of Henry I., Stephen, and John. Henry used words, which may possibly be interpreted as defining and restricting the grant of freedom,1 until it meant little more than freedom from the graver abuses of Rufus’ reign. Stephen’s charter, on the contrary, supplements the same phrase by definite declarations that the bishops should have sole jurisdiction over churchmen and their goods, and that all rights of wardship over church lands were renounced, thus making it a “large and dangerous promise.”2

“Freedom of the church” had come in 1136 to include “benefit of clergy” in a specially sweeping form, and much besides.3 It is easy to understand why churchmen cherished an elastic phrase which, wide as were the privileges it already covered, might readily be stretched wider. Laymen, on the contrary, contended for a more restrictive meaning; and the Constitutions of Clarendon must be viewed as an attempt to settle disputed points of interpretation. Henry II. substantially held his ground, in spite of his nominal surrender after Becket’s murder. Thanks to his firmness, “the church’s freedom” shrank to more reasonable proportions, so that the well–known formula, when repeated by John, was emptied of much of the content found in it by Stephen’s bishops. Chapter 18 of Magna Carta embodied, apparently with the approval of all classes, the principle that questions of church patronage (assizes of darrein presentment)4 should be settled before the King’s Justices, a concession to the civil power inconsistent with the more extreme interpretations formerly put by churchmen on the phrase.

In later reigns, the pretensions of the church to privileged treatment were reduced to narrow bounds, and the process of compression was facilitated by that very elasticity on which the clergy had relied as being favourable to the expansion of their claims. It was the civil government which benefited in the end from the vagueness of the words in which Magna Carta declared quod Anglicana ecclesia libera sit.1

(2)

Canonical Election.

The charter, granted to the church on 21st November, 1214, had been reissued on 15th January.2 Its tenor may be given in three words, “freedom of election.” In all cathedral and conventual churches and monasteries, the appointment of prelates was to be free from royal intervention for the future, provided always that licence to fill the vacancy had first been asked of the King. The bishops present at Runnymede succeeded in having this concession inserted in the very forefront of Magna Carta.

Henry III. in his reissues was made to repeat the phrase quod Anglicana ecclesia libera sit, but omitted all reference alike to canonical election and to John’s charters to the church. With the Pope’s connivance or support, he reduced the rights of cathedral chapters to the sinecure they had been before 1215. It is true that Henry was prone to lean on the papal arm, and that the Curia at Rome rather than the Curia Regis often dominated appointments to vacant sees: the canons elected the nominee of king or pope, as each was, for the moment, in the ascendant.3 In spite of Magna Carta, the independence of the English church retrograded during the long alliance between Henry III. and successive occupants of the papal throne.4

II.

Civil and Political Rights.

After providing thus briefly for the church, chapter one proceeds to give equal prominence, but at greater length, to the grant or confirmation of secular customs and liberties. A general enacting clause leaves details to the remaining sixty–two chapters of the Charter. Some of the more important points involved have already been discussed in the Historical Introduction—for example, the feudal form of the grant, better suited, according to modern ideas, to the conveyance of a specific piece of land, than to the securing of the liberties of a mighty nation; and the vexed question as to what classes were intended, under the description of “freemen,” to participate in these rights.1

Another interesting point, though of minor importance, calls for separate treatment. John does not state that his grants of civil and political rights had been made spontaneously. Whether deliberately or not, there is here a marked distinction between the phraseology applied to secular and to ecclesiastical rights respectively. While the concessions to churchmen are said to have been granted “mera et spontanea voluntate,” no such statement is made about the concessions to freemen. John may have favoured this omission with an eye to the future repudiation of the Great Charter on the ground that it had been sealed by him under compulsion. Perhaps it was to anticipate the repetition of such arguments that the words spontanea et bona voluntate nostra were inserted in the preamble of the reissue of 1225, which had been purchased by a liberal grant.2

[3 ]Some editions place here the division between c. 1 and c.

[1 ]Cf. supra, p. 39.

[1 ]See their Charters in Appendix.

[2 ]See Makower, Const. Hist. of the Church, 26, 315.

[1 ]Cf. supra, p. 97.

[2 ]Cf. Pollock and Maitland, I. 74.

[3 ]Cf. supra, pp. 102–3.

[4 ]For explanation see infra, c. 18.

[1 ]Mr. J. H. Round (Geoffrey de Mandeville, 3), speaking of Stephen’s “oath” to restore the church her “liberty,” describes this as “a phrase the meaning of which is well known.” If “well” known, it was known chiefly as something which baffled definition, because churchmen and laymen could never agree as to its contents, while it tended also to vary from reign to reign. Mr. Round attempts no definition. Sir James Ramsay (Angevin Empire, p. 475), writing of the phrase as used in John’s Charter, is less prudent. “It would relieve the clergy of all lay control, and of all liability to contribute to the needs of the State beyond the occasional scutages due from the higher clergy for their knights’ fees.” This definition would not have satisfied John.

[2 ]Cf. supra, p. 33. The text will be found in Statutes of the Realm, I. 5, and in New Rymer, I. 126–7. It was confirmed by Innocent on 30th March, 1215. See Potthast, Regesta pontificum romanorum, No. 4963.

[3 ]Cf. supra, p. 141.

[4 ]Cf. Prothero, Simon de Montfort, p. 152. “The English church was indeed less independent of the king in 1258 than in 1215, and far less independent of the Pope than in the days of Becket.”

[1 ]See supra, pp. 104 and 114. For the meaning of “freeman” and Coke’s inclusion of villeins under that term for some purposes but not for others, see infra, cc. 20 and 39.

[2 ]Cf. supra, 154, where the bearing of these words is discussed.