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• Magna Carta Celebration, 1915. General Committee. Nominated In 1914.
• Introduction By H. E. Malden, M.A.
• Professor Wm. S. Mckechnie, Magna Carta (1215–1915). an Address Delivered On Its Seventh Centenary, to the Royal Historical Society and the Magna Carta Celebration Committee.
• Professor G. B. Adams, Innocent Iii and the Great Charter.
• J. H. Round, “barons” and “knights” In the Great Charter.
• Sir P. Vinogradoff, Magna Carta, C. 39. Nullus Liber Homo, Etc.
• Charles Howard Mcilwain, Magna Carta and Common Law.
• H. D. Hazeltine, the Influence of Magna Carta On American Constitutional Development.
• Prof. Rafael Altamira, Magna Carta and Spanish MediÆval Jurisprudence.
• Hilary Jenkinson, Financial Records of the Reign of King John.

INNOCENT III AND THE GREAT CHARTER.

Professor G. B. Adams, Ph.D.

That John expected the Pope to release him from his obligation to the Charter upon some ground or other is, I think, reasonably certain. That the Pope honestly believed that he was acting with competent authority in doing so, is even more clear from the evidence. But no attempt has ever been made, so far as I am aware, to show by an analysis of the evidence upon what basis of legal right the Pope supposed he was resting his Bull of 24 August, 1215, or to subject his right to annul the Charter to a legal criticism. I can hope in this paper to do no more than to make a beginning in that direction.

To determine the legal basis of the Pope’s action, one turns first of all to the Bull itself, but the answer which it gives is too indefinite to be satisfactory.1 One naturally expects to find the Pope’s action based upon the vassal relation of England to the papacy. This relationship is indeed clearly mentioned in the Bull, but it is not emphasized. It is put forward as one fact among others explaining the Pope’s interest in the case; but his interest in the fact that John was a crusader is more strongly insisted on.2 Nowhere is the feudal relationship asserted as the ground of right on which the Pope was acting, nor is there any attempt made to show that the Charter reduced the value of the fief or its ability to perform the service by which it was held, nor are these facts even asserted. In the formal phrases of annulling at the close of the Bull, it is the apostolic authority which is put forward, and there is no mention of the feudal relationship.1 So far as the language of the Bull is concerned, there is nothing in it to prevent our saying that, if the relationship had not existed, the Pope would have taken the same action.

If now we turn from the Bull to the other contemporary evidence, documentary and chronicle, which has come down to us, the information we gain is no more definite, but certain things bearing on the question stand out rather clearly.

I. The feudal dependency of England upon the papacy was recognized by all parties during the whole period, with the single exception of Philip II of France and his son in their debate with the Pope. They, however, do not deny the fact of the relationship, but the right of John to enter into it and its legality.2 John of course makes the matter entirely clear in his two Charters, recording his oath of fealty, of 15 May, and 3 October, 1213.3 He there calls England for the first time “patrimonium beati Petri” a phrase recurring again in connection with the Charter. In his letters in 1215 John also refers frequently and clearly to the relationship, as does also the Pope, and the phrase “patrimonium Petri” occurs several times. Too much emphasis has, I think, been placed upon the barons’ recognition of the vassal relation in their letter to the Pope in February, 1215, for rhetorical purposes merely, but they certainly do recognize it, according to the statement of John’s envoy.1

II. In certain cases John had acted, or seems at first sight to have acted, as the Pope’s vassal:—

• 1. He sought a confirmation from the Pope of his grant of freedom of election to the churches of 15 January, 1215.2 That this is the act of a feudal vassal seeking a confirmation from his lord of a grant which would be invalid without it, is exceedingly doubtful. It probably would have been sought in any case; the prelates would naturally desire this sanction added to the King’s grant. The confirmation is “auctoritate Apostolica confirmamus,” and there is no reference in it to the feudal relationship nor to feudal rights. The language of all the clauses of confirmation and sanction follows closely the model which had long been in use in the papal chancery for similar confirmations issued in large numbers to monasteries and churches with reference to lands and rights by whomsoever given.1 It is not possible to cite this case as evidence of action upon feudal principles.
• 2. Confirmation was also sought from the Pope of the arrangement made with Berengaria in 1215 in regard to her dower rights. In this case the papal confirmation is lacking, though one was sent to Berengaria in answer to her request,2 and one was no doubt sent to John. We have, however, John’s requests, two separate requests of even date, in regard to two distinct agreements.3 In these no reference is made directly or indirectly to the feudal position of the Pope. In the one which concerns the main agreement, there is no request for confirmation, but, in the language of the agreement, the Pope is asked “ut praesenti compositioni addat securitates quas viderit expedire et nos ratum habebimus quicquid inde statuerit”. In the second the word “confirmat” is used but clearly not in a technical sense, and the meaning of the request is the same as in the first, not that the Pope will make legal something which is otherwise beyond the capacity of the contracting party, but that he will add further, unknown, sanctions to the agreement. This is quite in accordance with what would at any time be normal, considering the question between the parties and the Pope’s earlier interest in the case. In a letter on the subject addressed to John in 1207,1 he had clearly stated the grounds of his right to act in the case, his special duty towards widows, and commanded (“mandamus”) him to represent “in praesentia nostra” what he was going to do. This case is also clearly non-feudal.
• 3. In his letter of 29 May, 1215, John said that he had declared to the barons that his land was the patrimony of St. Peter, held of him and of the Roman Church and of the Pope, that he emphasized to them his obligations, and claimed his privileges as a crusader, and then appealed through the Earls of Pembroke and Warenne against the disturbers of the peace of the land.2 Roger of Wendover states that John’s messengers to the Pope, presumably those whom he says the King sent soon after granting the Charter, in the account of events which they gave the Pope, mentioned an appeal by the King before the entry of the barons into London.1 In his Bull of 24 August, the Pope says that John had twice appealed to him. There is no further evidence for these statements, but there is no reason to doubt them. It should be noted that they give us no clear evidence of the ground on which the appeal was made.
• 4. Roger of Wendover in the account just referred to makes the King’s envoys say that at some indefinite time before the granting of the Charter John publicly protested before the barons that, because the kingdom of England belonged to the Roman Church “ratione dominii,” he could not and ought not to decree anything new without the consent of the Pope nor to change anything in the kingdom to his prejudice. This same statement is also made by the Pope in the Bull of 24 August.2 Here is clearly an appeal to feudal law. The Pope’s attention was called to a principle upon which he might act against the Charter, and that principle was clearly in his mind when the Bull was drawn up. Nevertheless it was not made the basis of the Pope’s action. In regard to the point of law, we may so far anticipate the later discussion as to say that in the first part of his statement John was quite wrong, and in his second more nearly right.
• 5. In the Bull of 24 August, the Pope says that after offering to the barons “secundum formam mandati nostri justitie plenitudinem exhibere,” which they refused, the King “ad audientiam nostram appellans obtulit eis exhibere justitiam coram nobis, ad quos hujus cause juditium ratione dominii pertinebat.”1 This is the first appeal mentioned by the Pope, and if the appeals have been correctly indicated in 3 above, it is the one made through the Earls of Pembroke and Warenne. In his letter 29 May, John, in mentioning this appeal, does not add these legal particulars, and the source of the Pope’s information is not evident. Judging by his general practice, however, he was probably following English information from some source. It is also quite possible that John, in order to confuse the situation, may have made an appeal in some such terms. It is out of the question, however, that any practical result should follow from such an appeal, or that it should be legally defensible. It is theoretically possible that the Pope could create a lay court of peers for the trial of an appeal by John, but not actually possible. The King of Sicily was in the midst of his campaign for the throne of Germany. The King of Aragon was a minor. The Pope’s royal vassals in Hungary and the Balkans could hardly be expected to appear in Rome for such a purpose. A lay court of the Pope’s vassals in Rome and its neighbourhood could easily have been called together, but it would hardly have been a court of the peers of John. In relation to him they would be in the position of those who held in England “ut de honore” instead of “ut de corona”. The legal difficulties are equally formidable. The language used by the Pope plainly implies a judicial proceeding. If the Pope states the facts correctly, and the evidence goes to show that he did, on the arrival in England of his letter of 29 March, John offered to the barons—“quod...in curia sua per pares eorum secundum legem et consuetudines regni suborta dissensio sopiretur”. This, however, would not be a suit at law. With reference to the barons’ complaints, the King would be in the position of a defendant, but as King he could not be sued. He states the situation with technical correctness in his letter of 29 May, which is probably the source of the Pope’s information.1 He says: “et praeterea eis optulimus quod de omnibus petitionibus suis, per considerationem parium suorum justitiae plenitudinem eis exhiberemus”. That is the barons’ case could come before the curia regis only by way of petition, and the answer would be a matter of equity, that is an act of the curia as council, not as court, if we may make a distinction perfectly valid in 1215, but which perhaps the men of that day could not have drawn. In such a case John could have no appeal to his suzerain on technical grounds. Every action of the council was technically his action, and no decision of the whole baronage against him would have any legal validity if he withheld the “Rechtsgebot”. The only technical appeal possible would be by the barons. They, however, refused the King’s offer and then John appealed, on what grounds we do not know. It could not have been on grounds of legal technicality, but the general appeal to his lord for protection was always open to him, though it could have been made in this case only by a quibble. Equally difficult is the Pope’s statement that John offered to do the barons justice before him to whom “hujus cause juditium ratione dominii pertinebat”. In the relation of England to the papacy, no right of judgment pertained to the Pope “ratione dominii” except in cases brought before him by way of appeal. It is necessary to say that the Pope is here using language which is apparently technical, but which cannot be justified upon such grounds, but only if it is regarded as used in the most general and non-technical sense.1 John’s curia was as fully competent to judge finally every case between the King and the barons after as before he became the vassal of the Pope and without any reference to his overlord. His position was not that of an English vassal of the King, but that of one of the sovereign great barons of France, and, under the terms by which the fief was held, he could not even be called upon for court service as a matter of right.

III. Although John calls attention several times to his feudal relation to the Pope, and seems disposed to make what he can of it, he clearly does not trust to it as sufficient. On 4 March, 1215, he took the cross, thereby gaining the ecclesiastical protection and extensive privileges granted to the crusader, but also securing the interest of the Pope in regard to the plans which Innocent had most deeply at heart. In this new relationship John undoubtedly secured all that he needed, and the skilful use which he could make of it is shown in his letter of 29 May in which he puts the situation in such a light as to make clear to the Pope his inability to take any steps towards the crusade because of the trouble the barons were making.1 On this ground alone the Pope would undoubtedly have felt himself justified by existing law and practice in acting as he did. Not merely did the privileges granted crusaders relieve them from contracts which interfered with the carrying out of their vows,2 but the popes assumed the right to protect a crusade, and crusaders, from any interference with the undertaking. In his excommunication of the crusaders of the fourth crusade, for their attack on Zara, Innocent based his action wholly on ecclesiastical grounds, and did not allude to the fact that the King of Hungary, whose territory was thus violated, was his vassal whom he would be bound to protect in the possession of his fief.1

IV. According to Roger of Wendover’s account of the embassy to the Pope soon after the granting of the Charter, Innocent was informed that the barons had demanded “quasdam leges et libertates iniquas quas dignitatem regiam nulli decuit confirmare”. The same chronicler informs us that John, angry at the demands of the barons presented in their preliminary schedule, cried out “Et quare cum istis iniquis exactionibus barones non postulant regnum,” and attributes a similar exclamation to Innocent when certain clauses of the Charter were shown him in writing.2 If these statements refer to specific demands, it would be exceedingly interesting to know which ones they were. If regarded as intended to furnish a legal basis in feudal law for the Pope’s action against the Charter, they are certainly much too strong for anything which it contains. The only clauses which demand extreme concessions from the King I have discussed elsewhere sufficiently, I think, to show that taken all together they would not justify such statements.3

If finally we turn to feudal law, as understood either in England or on the Continent, to inquire if, by its principles alone, the Pope would have been justified in annulling the Charter, the answer must be, I think, in the negative. The details of the law which would apply to this case differed in different countries, but the underlying principle was the same everywhere: without the lord’s consent the vassal might do nothing with or in his fief which reduced its value to himself to such an extent as to endanger his ability to perform the service by which he held it.1 In some cases this principle was extended to mean that no reduction, however small, like the emancipation of a serf, could be made in the capital, or permanent, value of the fief, undoubtedly with reference to the possibility of escheat, as is stated in the English Statute of Mortmain. In applying this principle to the case of Innocent III and John, it must first of all be remembered that John did not hold England by indefinite feudal, or by military tenure, but by a clearly defined money payment only. That is England was a “feudum censuale,” which is the term applied by Innocent to the exactly similar relation of Aragon to the papacy.1 In both John’s Charters of 1213 making the concession to the Pope, and in the Pope’s acceptance of 2 November, 1213, the money payment is distinctly said to be “pro omni servicio et consuetudine, quod pro ipsis facere deberemus,” saving St. Peter’s pence. This definition of the service is perfectly clear and normal, and it limits not merely John’s obligations but also the Pope’s rights. Under it the Pope would be in duty bound to protect the King in the possession of his fief against any outside attack or any internal revolution which would deprive him of it, but he could find no ground in feudal law on which he could object to any arrangement entered into by his vassal for its internal management which did not seriously affect his ability to pay the specified annual sum. If all the financial clauses of the Charter be put together and interpreted as they must have been understood in 1215, the absurdity of supposing that they would justify the annulling of the Charter by the overlord will be apparent. But the Pope and the King apparently understood the weakness of such a case, notwithstanding John’s extreme statements and the Pope’s seeming endorsement of them; neither of them trusted the feudal relationship as a sufficient ground of action against the Charter, and the fact accounts for John’s assumption of the cross, and for the way in which the Pope passed over his feudal rights in the Bull of 24 August. It is upon his ecclesiastical rights that Innocent founded his action and upon them alone.

APPENDIX.

The Pope’s letter of 18 June, 1215, to which reference is made above, is in the Public Record Office, Papal Bulls, Box 52, No. 2. The upper left-hand corner has been destroyed at some time in the past, so that the entire address and portions of diminishing length of the first ten lines have been lost, and a single word and portions of words, as indicated in the text, have been lost elsewhere in the letter. The lines contain an average of 202 letter and word spaces. The address was probably general to the people of England. The letter seems to have a special reference to John’s letter to the Pope of 29 May, and in the first portion it follows rather closely the Pope’s letters of 19 March. The text was printed by Prynne in his “History of King John” (1670), p. 27, who supplied the address “Innocentius Episcopus nobilibus viris universitati Baronum Angliae hanc paginam inspecturis, salutem et Apostolicam benedictionem,” (which can hardly be correct), and portions of the missing words, distinguishing his additions in two cases only. Modern historians have mostly not noticed its existence. Ramsay, “Angevin Empire,” p. 486, n. 1, refers to Prynne’s text (reference a misprint) and says the letter “does not read quite like one of Innocent’s utterances”. Gasquet, “Henry Third and the Church,” pp. 13–15, gives a reference to the original, says it was “addressed to Langton and the other English bishops,” which it certainly was not, and gives an otherwise inaccurate abstract of its contents. There is no reference to it in Potthast. As the letter is highly characteristic of the method in which the papal letters were composed during this conflict, and may be called in some respects a first draft of the Bull of 24 August, it seems worth while to print it in a new and more accessible edition. A comparison of the text with that of the other letters, papal and royal, of the crisis, beginning with that to Eustacede Vesci of 5 November, 1214 (Rymer, i. 126), will show the characteristic borrowing of phrases of which I have spoken. I have referred in the notes by date to some of the more important or interesting cases.

It will be noticed that in this letter the Pope says that he has given directions to the archbishop and his suffragans to excommunicate the barons unless within eight days they come to an agreement with the King according to the form which he had earlier recommended to their messengers. The only papal letter which we have corresponding to this statement is the Bull “Miramur plurimum” preserved without date by Roger of Wendover (iii. 336). The dating of this Bull is admittedly difficult. Its place among the events of Roger of Wendover’s narrative can give us no clue. In Walter of Coventry (ii. 223), a Bull of similar purport is said to have been shown to the bishops at a meeting at Oxford on 16 August. It is dated by Potthast (No. 4992) end of August, and most modern historians have accepted Walter of Coventry’s date as that at which it was presented. Sir James Ramsay (“Angevin Empire,” p. 478) concludes against August in favour of 16 July. The most serious objection to considering the Bull “Miramur plurimum” to be the one referred to in the letter of 18 June is the definite statement that the barons were to be allowed an interval of eight days in which to come to an agreement with the King. That statement is not in the Bull “Miramur plurimum”. It may have been contained in a supplementary letter, or have been committed to the messengers to be made known orally, as not quite consonant with the dignity of a formal papal command. It should be noticed that the Bull shows no knowledge of the Charter. I am inclined to believe that it should be dated 18 June, and the meeting at which it was shown the bishops 16 July, though I am not prepared to assert this definitely.

TEXT OF THE POPE’S LETTER OF 18 JUNE.

...partibus Anglie nuper auribus nostris...odo Regni Anglie; sed etiam aliorum......quasdam inter eos et Carissimum......opus esset cum humilitate ac devotione repetere1 ...super hoc iidem Barones suos ad nos nuntios destinassent;2 et nos Ue...

...dedissemus litteris in preceptis. ut conspirationes. et coniurationes3 presumptas. a tempore suborte discordie inter Regnum et sacerdotium, apostolica denu......es; ne talia decetero temptarentur, iniungerent baronibus antedictis; ut per devotionis et humilitatis ind[i]cia tam animum Regis placare.4 quam recon......es, quod ab eo ducerent postulandum; conseruando sibi regalem honorem et5 exhibendo seruitia debita.6 quibus ipse rex non debebat absque iudicio spoliari;7 ac insuper...prefatam in remissione sibi peccaminum iniungendo. quatinus benigne pertractans nobiles antedictos, iustas petitiones eorum clementer admitteret8 plena eis in uniendo. morando. et recedendo secu......essa pariter atque data. Ita quod si forte non posset inter eos concordia prouenire; in curia sua per pares eorum9 secundum Regni consuetudines atque leges mota deberet dissensio terminari; Barones ipsi nostro non expec10 tato responso, postquam idem Rex signum crucis assumpsit in subsidium terre sancte; contempta iustitia quam ipse Rex superhabundanter offerebat eisdem;1 contra dominum suum arma mouere temeritate nefaria presumpserunt. non timentes taliter crusis negotium impedire; ac regni periculum procurare. cum pecuniam quam pro liberatione terre sancte deberet expendere;1 in destructionem etiam terre sue profundere compellatur. Quodque nefandum est et absurdum. cum ipse Rex quasi peruersus deum et ecclesiam offendebat; illi assistebant eidem. Cum autem conuersus deo et ecclesie satisfecit; ipsum impugnare presumunt.2 sicque uidetur quod conspirationem inhierint detestandam; ut eum taliter de Regno possint eicere.3 hominio et fidelitate sibi prestitis penitus uiolatis. quod quam crudele sit actu. et horrendum auditu; cum perniciosi exempli materia sit et causa nostris temporibus inaudita; manifeste cognoscit. quicumque iudicio utitur rationis. unde ualde dolendum existit. cum hoc in iniuriam summi dei. ecclesie Romane ac nostrum contemptum. Regis et Regni obprobrium et periculum. et terre sancte ad cuius subsidium se deuouerat Rex prefatus, nimium detrimentum redundat. Cum igitur debeamus et libenter uelimus pacem Regni Anglie procurare. ipsius turbationes4 propellere, ac dicti Regis qui uasallus noster existit conseruare iustitias et iniurias propulsare. maxime5 cum idem propter caracterem crusis assumptum. specialiter sub nostra protectione consistat; prefatis Archiepiscopo et Suffraganis eius in obedientie uirtute districte⁵ dedimus in preceptis. quatinus nisi prefati Barones infra octo dies6 post susceptionem litterarum nostrarum, ab eis uel aliquo ipsorum diligenter ammoniti. receperint et seruauerint formam descriptam superius a [nobis] nuntiis eorum presentibus cum multa deliberatione prouisam; iidem omni cauillatione post-posita;¹ eos et fautores ipsorum sublato cuiuslibet contradictionis et appellationis obstaculo; excommunicationis mucrone percellant et terras illorum [ecclesi] astico subiciant interdicto, facientes utramque sententiam per totam angliam singulis diebus dominicis et festiuis sollempniter publicari. Ne igitur propter quosdam peruersos uniuersitatis sinceritas in Anglia corrumpatur. que hactenus ab infidelitatis contagio fuit prorsus immunis. Uniuersitati uestri per apostolica scripta precipiendo mandamus. et in remissionem iniungimus peccatorum. quatinus prefato Regi aduersus peruersores huiusmodi oportunum impendatis auxilium et fauorem. ita quod in confusionem ipsius et aliorum Regnorum, non possit tanta nequitia preualere, sed tempestate sedata; Regnum ipsum optata tran-quillitate letetur. Scientes procerto. quod si Rex ipse remissus esset aut tepidus in hac parte, nos Regnum Anglie non pateremur ad tantam ignominiam et uilitatem deduci, cum sciamus per dei gratiam et possumus talium insolentiam castigare. Dat. Terentin’. xiiii Kal Iulii. Pontificatus nostri Anno Octauodicimo.

An endorsement in a later, but thirteenth-century, hand, possibly not much later than the original, reads: Innoc’ de turbacione orta inter Regem I. et barones Anglie verbum ultimum competens est. Examinatur.

[1]Rymer’s “Foedera” (second edition), i. 135; Bémont, “Chartes des Libertés Anglaises,” 41–4.

[2]“Cum igitur debeamus et libenter velimus...dicti Regis qui vasallus noster existit conservare justitias et injurias propulsare, maxime cum idem propter caracterem crusis assumptum specialiter sub nostra protectione consistat....”—Letter of Innocent III of 18 June, 1215. See also the Bull “Miramur plurimum”. The reference to the vassal relationship in any portion of the Bull of 24 August, except the historical, is only indirect.

[1]“...ex parte Dei omnipotentis patris et filii et Spiritus sancti, auctoritate quoque beatorum Petri et Pauli apostolorum ejus ac nostra, de communi fratrum nostrorum consilio, compositionem hujusmodi reprobamus penitus....”—Bull of 24 August.

[2]“Roger of Wendover” (ed. Coxe), iii. 364, 365–6.

[3]Rymer, i. III, 115, containing John’s oath of fealty in written form, which was not usual. For another instance see the fealty of Henry II to Louis VII, Bouquet, xvi. 16. That an ecclesiastic had some influence upon the wording of this document seems to be indicated not merely by the phrase “patrimonium beati petri” but also by the other phrase by which fealty was sworn not merely to Innocent III, but also “ejusque successoribus catholice intrantibus,” a specification which would hardly have occurred to an English layman, but which would have seemed very necessary to a Roman having in mind the recent and foreseeing the possible history of the papacy.

[1]See Norgate, “John Lackland,” p. 246.

[2]This depends upon the statement twice made by M. Paris in what appear to be his separate additions to Roger of Wendover (M. Paris (Rolls Series), ii. 606 and 607). John’s request has not been preserved, and the papal confirmation, which is addressed to the English prelates only, does not allude to it. The Confirmation is Potthast, No. 4963, and is printed “from the original” in Rymer, i. 127. Apparently no confirmation was asked of the earlier issue of this grant on 21 November, 1214. Having carefully considered suggestions made to the contrary, I still hold to the opinion expressed in “The Origin of the English Constitution,” p. 258, that it is very doubtful if any heir of John would have considered himself bound by a grant like this. Henry III certainly did not consider himself bound by what it means, fairly interpreted.

[1]Examples may be found in almost any cartulary. See Ramsey, “Cartulary” (Rolls Series), ii. 146, a confirmation by Innocent III, 1199, of gifts present and future (“auctoritate Apostolica confirmamus”), in which the language with insignificant variations is identical, and the following document (p. 147) a similar confirmation by Alexander III. Some of these phrases occur again in the Bull of 24 August, annulling the Charter.

[2]Potthast, No. 5141; Bouquet, xix. 607; Migne, “Opp. Inn.” iii. 992.

[3]Rymer, i. 137; “Rot. Litt. Pat.” i. 181–2.

[1]Potthast, No. 3171; Rymer, i. 97.

[2]Rymer, i. 129. The appeal was “contra perturbatores pacis terræ nostræ,” no doubt the source from which the Pope obtained this phrase used afterwards in the Bull “Miramur plurimum” ordering the excommunication of the barons. The repetition of phrases from one of these documents to another, and the borrowing—by England of papal phrases, and by the Pope of English phases—is interesting. That John in this letter puts more emphasis on his crusading than on his vassal relationship, may be due to the fact that he is replying to a request from the Pope for a report on his preparation for the crusade. It gives him an opportunity to make clear the effect which the baronial opposition was having upon Innocent’s cherished plans which he did not neglect.

[1]Roger of Wendover, iii. 322.

[2]The language on this matter is so nearly alike in Roger of Wendover, iii. 322, and the papal Bull, as to raise the question of their dependence upon one another. Wendover could easily be following the Bull in these particular phrases, but he adds other particulars which could not be so derived, and it is quite possible that he was following a letter presented to the Pope by the envoys, not now surviving, which the Pope also follows, as was his constant practice throughout the struggle—in regard to his information from England. Some confirmation of this may possibly be found in the reference to the occupation of London, of which Wendover says, “quæ caput regni sui est proditione sibi traditam,” and the Pope, “que sedes est regni proditorie sibi traditam”. Roger of Wendover (iii. 319) says that John sent Pandulf to the Pope against the Charter soon after it was granted, and Walter of Coventry (ii. 222) says that he sent the Chancellor, Richard Marsh (cf. McKechnie, p. 44, who seems from his reference to be following Petit-Dutaillis, “Vie de Louis VIII,” p. 59, where it was, I suppose, a misprint). Neither of these statements is correct, and the letter of John to the Pope in regard to a mission of Pandulf’s, which is printed in Rymer, i. 135, as if it belonged to this date, must probably be dated c. 13 September (cf. “Dict. Nat. Biography,” xv. 176). It was entered in the Patent Roll of 17 John (m. 15 d.) in close connection with other letters of that date (“Rotuli Patentes,” p. 182).

[1]The offer which most nearly corresponds to this in form is that which John in his letter of 29 May (Rymer, i. 129) says he made to the barons in the presence of brother William, that is on the day the letter was written. He says: “optulimus praedictis baronibus quod de omnibus petitionibus suis, quas a nobis exigunt, in vos benignissime compromitteremus, ut vos qui plenitudine gaudetis potestatis, quod justum foret statueretis”. This offer, however, as stated, does not mean legally what the Pope asserts, and the date seems hardly to agree with the Pope’s implied chronology. Clearly he puts the offer before, and John after, the offer of arbitration by a chosen body of eight.

[1]The technical expression is also correct in the two papal letters of 29 March. For the situation created in the curia when all the barons were against the lord, see Beaumanoir, “Coutumes de Beauvoisis, c. 44 (ed. Salmon), chap. i. 33 (ed. Beugnot). The appeal there referred to is the appeal for default of right.

[1]Of course some lords had a right of judgment in cases arising in their vassals’ holdings “ratione dominii” because of the limited right of jurisdiction of the vassal. But that right could not exist here. All lords had such a right by way of the regular appeals, but that right also could not be in force in this case.

[1]Innocent was dependent for his information as to the facts and merits of the struggle in England mainly upon information given him by John. As stated by the King his case must have seemed very strong to the Pope, who seems to have understood fairly well a good many of the details.

[2]See for example the regulations for the third crusade, in Rigord (ed. Delaborde), i. 85–8. These indicate not merely the privileges granted crusaders in the matter of debts, but also by their limitations on those privileges they show what larger things were popularly expected.

[1]Potthast, Nos. 1848, 1849; Migne, “Opp. Inn.” i. 1178, 1179; Bouquet, xix. 420, 422.

[2]Roger of Wendover, iii. 322, 298, 323 respectively. The Pope in the Bull of 24 August calls the Charter “compositionem...non solum vilem et turpem, verum etiam illicitam et iniquam, in nimiam diminutionem et derogationem sui juris pariter et honoris”.

[3]In “The Origin of the English Constitution,” chap. v.

[1]The legislation upon this question, as far as tenants-in-chief are concerned, is about the oldest in feudal law, and goes back to a point before feudalism in the later sense had been fully established. See “Mon. Ger. Hist.,” “Capitularia Regum Francorum,” ii. 14, c. I, and the references in note I to earlier legislation, and p. 15, c. 5 (A.D. 829). In the intermediate period a great deal of laxness prevailed both in Italy and England in regard to the application of the fundamental principles. In Italy imperial legislation at the middle of the twelfth century endeavoured to check these tendencies and may be supposed to have been within the memory of the papal curia. See the law of Lothar III of 1136, “M.G.H. Leg. Sec.” iv. tome i. 175, and those of Frederick 1 of 1154 and 1158, ibid. pp. 207 and 248, c. 3. This legislation was taken up into the “Libri Feudorum”. Conrad II’s legislation of 1037 has no provisions on the subject. In England the legislation of the thirteenth century, both in regard to mortmain and the principles of the statue of “Quia emptores,” shows that the fundamental feudal principles had been consciously recognized, however lax the practice may have been. In the kingdom of Jerusalem peculiar freedom was allowed in the matter of subinfeudation for military reasons. See “Livre de Jean d’Ibelin,” c. 182, ed. Beugnot, i. 284, and note b. The fundamental principle is, however, the same. It is the assize, or the local usage, which makes the difference. None of the feudal law codes of the thirteenth century gives any great space to the topic, or particularly emphasizes any part of it, unless it be grants in mortmain. Particularly good discussions of various phases of the subject may be found in Viollet’s notes to the “Établissements de S. Louis,” i. 30, 163; iii. 104–7, 124–6; iv. 298–303. It is in French feudal law that the principles were finally worked out in the most elaborate way. This may be best obtained from Loysel’s “Institutes Coutumières,” ed. Dupin et Laboulaye (1846), nowhere in one place, but see the various terms in the Index. The result may be indicated as follows: The general principle covers: (1) Abridgement of the fief; (2) Dismemberment of the fief, or the division of it into a number of fiefs, all holding of the immediate overlord, as results from the statute “Quia emptores,” and (3) “Jeu de fief,” or subinfeudation. It is under abridgement of the fief that Magna Carta would come, if anywhere. That is again subdivided into: (1) grants in mortmain; (2) emancipation of serfs; and (3) abridgement proper in which certain definite income from the fief, including the relief, is fixed by agreement between lord and man at a sum considerably below the normal value. It is this last arrangement which creates what is known technically in French law as the “fief abrigé,” and it is under this only that Magna Carta could be brought, but it is absurd to suppose that any financial provision of the Charter would render uncertain John’s ability to pay his annual cens of 1000 marks. There are no regulations in any feudal code or law, early or late, concerning customs, services, or relationships, which have not an economic value, or which would justify the statement attributed by Roger of Wendover, iii. 322, to John that he could not “de novo aliquid statuere” without the knowledge of the Pope. The “Tratado de la Regalia de Amortizacion” of Rodriguez Campomanes, Madrid, 1765, reviews the legislation of all the countries of Western Europe on that subject, but traces only partially the earliest forms and does not discuss allied matters. The same is true, with even less on early legislation, of C. 1. Montagnini, “Dell’ Antica Legislagione Italiana sulle Manimorte,” in “Miscellanea de Storia Italiana,” tome xix. Turin, 1880. It deals with the subject in detail only from the fifteenth century.

[1]....”illud ei [Sedi Apostolicæ] constituens in perpetuum censuale.“...Letter to Peter II, not dated. Potthast, No. 2322. Text in Jean Dumont, “Corps Universel Diplomatique,” i. 132. There was nothing in the fact that John’s service was merely a rent payment to make his typically feudal oath of fealty, or the use of the word “vassal” for him, seem out of place. The idea “held of another” was fundamental in feudalism, and from it passed with feudal incidents to relationships not originally feudal and in reality never becoming such. Here it is important to notice that with this idea as a starting-point anything in the way of service could be added or omitted according to individual conditions, and a fee-farm tenure be made clearly feudal, or clearly a common freehold, and the immense variety of services attached to serjeanty tenures be created at will. That a fee-farm tenure might owe military service is directly stated by Magna Carta, c. 37. Interesting examples of the varieties of this tenure may be found in almost any cartulary. See for reservation of forensic, or royal, service, which might often be military, “Gloucester Cartulary,” i. 209, 272 (many others); for service at a free court, ibid. i. 333, 385 (many others); wardship, ibid. i. 303; “servitium esquierii,” ibid. i. 336; the ordinary judicial duty of the “advocatus,” “Ramsey Cartulary,” ii. 260, 265; with “liege fealty,” ibid. ii. 261; with castle guard, “Testa de Nevill,” p. 52b.

[1]March 19. The single reference in these notes must not be understood to mean that it is to the only instance of the use of the phrase.

[2]Cf. Rymer, i. 120. The letters referred to by the Pope are those of 19 March.

[3]5 November, 1214; 19 March.

[4]19 March.

[5]19 March. “em honorem et” written over an erasure.

[6]19 March, I April, 29 May. The reference without doubt is to scutage.

[7]1 April.

[8]19 March. This letter is even more closely followed than these notes indicate.

[9]10 May, 29 May.

[10]End of line 10.

[1]Cf. 29 May.

[1]Cf. 20 May.

[2]Cf. John’s letter to the Pope, 13 September, “Rotuli Patentes,” i. 182.

[3]Cf. Roger of Wendover, iii. 323, and the “Miramur plurimum”.

[4]Cf. the “Miramur plurimum” with 29 May. It was impossible for anyone to interpret the phrase honestly as meaning anyone but the barons.

[5]“Miramur plurimum.”

[6]Roughly the period between the exhibition of the letter at the supposed meeting of 16 August and the proclamation of the excommunication at Staines (Walter of Coventry, ii. 223–4).