II. FEUDAL GRIEVANCES AND MAGNA CARTA
I. The Immediate Causes of the Crisis.
Many attempts have been made to explain why the storm, long brewing, broke at last in 1214, and culminated precisely in June of the following year. Sir William Blackstone[60] shows how carefully historians have sought for some one specific feature or event, occurring in these years, of such moment as by itself to account for the rebellion crowned for the moment with success at Runnymede. Thus Matthew Paris, he tells us, attributes the whole movement to the sudden discovery of Henry I.’s charter, long forgotten as he supposes, while other chroniclers agree in assigning John’s inordinate debauchery as the cause of the civil dissensions, dwelling on his personal misdeeds, real and imaginary. “Sordida foedatur foedante Johanne, gehenna.”[61] Blackstone himself suggests a third event, the appointment as Regent in John’s absence of the hated alien and upstart, Peter des Roches, and his misconduct in that office.
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Footnote 60:
The Great Charter, p. vii.
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There is absolutely no necessity to seek in such trivial causes the explanation of a great movement, really inevitable, the antecedents of which were deeply rooted in the past. The very success of Henry Plantagenet in performing the great task of restoring order in England, for effecting which special powers had been allowed to him, made the continuance of these powers to his successors unnecessary. From the day of Henry’s death, if not earlier, forces were at work which only required to be combined in order to control the licence of the Crown. When the battle of order had been finally won—the complete overthrow of the rebellion of 1173 may be taken as a crucial date in this connection—the battle of liberty had, almost necessarily, to be begun. The clamant problem of the hour was no longer how to prop up the weakness of the Crown; but rather how to place restrictions on its unbridled strength.
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Footnote 61:
Several of the most often-repeated charges of personal wrongs inflicted by King John upon the wives and daughters of his barons have been in recent years refuted. See Miss Norgate, John Lackland, p. 289.
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We need not wonder that the crisis came at last, but rather why it was so long delayed. Events, however, were not ripe for rebellion before John’s accession, and a favourable occasion did not occur previous to 1215. The doctrine of momentum accounts in politics for the long continuance of old institutions in a condition even of unstable equilibrium; an entirely rotten system of government may remain for ages until at the destined moment comes the final shock. John conferred a great boon on future generations, when by his arrogance and by his misfortunes he combined against him all classes and interests in the community.
The chief factor in the coalition which ultimately triumphed over John was undoubtedly the baronial party led by those strenuous nobles of the north, who were, beyond doubt, goaded into active opposition by their own personal and class wrongs, not by any altruistic promptings to sacrifice themselves for the common good. Their complaints, too, as they appear reflected in the imperishable record of Magna Carta, are mainly grounded on breaches of the technical rules of feudal usage, not upon the broad basis of constitutional principle.
The feudal grievances most bitterly resented may be ranged under one or other of two heads—increase in the weight of feudal obligations and infringement, of feudal jurisdictions. The Crown, while it exacted from its tenants the fullest measure of services legally exigible, interfered persistently at the same time with those rights and privileges which had originally balanced the obligations. The barons were compelled to give more, while they received less.
With the first group of baronial grievances posterity can sympathize in a whole-hearted way, since the increase of feudal obligations inflicted undoubted hardships on the Crown tenants, while the redress of these involved no real danger to constitutional progress. One and all of the grievances included in this first group could be condemned (as they were condemned by various chapters of Magna Carta) without unduly reducing the efficiency of the monarchy which still formed under John, as it had done under William I., the sole source of security against the dangers of feudal anarchy. Posterity, however, cannot equally sympathize with the efforts of the barons to redress their second class of wrongs. However great may have been the immediate hardships inflicted on members of the aristocracy by the suppression of their feudal courts, lovers of constitutional progress can only rejoice that all efforts to restore them failed. Those clauses of Magna Carta which aimed at reversing the great currents flowing towards royal justice, and away from private baronial justice, produced no permanent effect, and posterity has had reason to rejoice in their failure.
Each group of feudal grievances—those connected with the increase of feudal obligations, and those connected with the curtailment of feudal immunities—requires special and detailed treatment.[62] To each class a double interest attaches, since the resentment aroused by both formed so vital an element in the spread of that spirit of determined resistance to King John, which led to the winning of Magna Carta, and since, further, an intimate knowledge of the exact nature of these grievances throws a flood of light on many otherwise obscure clauses of the Great Charter, and enables us to estimate how far the promised remedies were ultimately carried into practice in later reigns.
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Footnote 62:
See infra the two sections (II. and III.) immediately following.
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The grievances of the barons, many and varied as they were, were not, however, the only wrongs calling for redress. It is probable that the baronial party, if they had acted in isolation from the other estates of the realm, would have failed in 1215 as they had already failed in 1173. If the Crown had retained the active sympathy of Church and common people, John might have successfully defied the baronage as his father had done before him. He had, on the contrary, alienated from the monarchy all estates and interests, and had broadened the basis of opposition to the throne by ill-treating the mercantile classes and the peasantry who, from the reign of William I. to that of Henry II., had remained the fast, if humble, friends of the Crown. The order-loving tradesmen of the towns had been previously willing to purchase protection from Henry at the price of heavy, even crushing taxation; but when John continued to exact the price, and yet failed to furnish good government in return, his hold on the nation was completely lost. So far from protecting the humble from oppression, he was himself the chief central oppressor, and he let loose, besides, his foreign officers and favourites as petty local oppressors in all the numerous offices of sheriff, castellan, and bailiff. Far from using the perfected machinery of Exchequer, Curia, and local administration in the interests of good government, John valued them merely as instruments of extortion and outrage—as ministers to his lust and greed.
The lower orders were by no means exempt from the increased taxation which proved so galling to the feudal tenants. When John, during his quarrel with Rome, repaid each new anathema of the Pope by fresh acts of spoliation against the national Church, the sufferings of the clergy were shared by the poor. In confiscating the goods of the monasteries, he destroyed the chief provision for poor-relief known to the thirteenth century. The alienation of the affections of the great masses of lower-class Englishmen thus effected was never wholly undone, even by the reconciliation of John with the Pope. Notwithstanding the completeness and even abjectness of John’s surrender to Rome, he took no special pains to reinstate himself in the good graces of the Church at home. Innocent, secure at the Lateran, had issued his thunderbolts; and John’s counter-strokes had fallen, not on him, but on the English clergy—from the prelate to the parish priest, from the abbot to the humblest monk. The measures taken, in 1213 and afterwards, to make good to these victims some part of the heavy losses sustained, were quite inadequate. The interests of the Church universal were often widely different from those of the national Church, and such diversity was never more clearly marked than in the last years of the reign of John.
After 1213, John’s alliance with Rome brought new dangers in its train. The united action of two tyrants, each claiming supreme powers, lay and spiritual respectively, threatened to exterminate the freedom of the English nation and the English Church. “The country saw that the submission of John to Innocent placed its liberty, temporally and spiritually, at his mercy; and immediately demanded safeguards.”[63]
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Footnote 63:
Stubbs, Select Charters, 270.
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This union of tyrants naturally led to another union which checkmated it, for the baronial opposition allied itself with the ecclesiastical opposition. The urgency of their common need thus brought prelates and barons into line—for the moment. The necessary leader was found in Stephen Langton, who succeeded in preventing the somewhat divergent interests of the two estates from leading them in opposite directions.
All things were thus ripe for rebellion, and even for united rebellion; an opportunity only was required. Such an opportunity came in a tempting form in 1214; for the King had then lost prestige and power by his failure in the wars with France. He had lost the confidence of his subjects by his quarrel with Rome, and he failed to regain it by his reconciliation. He had lost the friendship of the national Church. His unpopularity and vacillating nature had been thoroughly demonstrated. Finally he had himself, in 1191, when plotting against his absent brother Richard, successfully attacked and ousted the Regent Longchamp from office, thus furnishing an example of rebellion, and of successfully concerted action against the central government.
The result was that, when the barons—the wildest spirits of the northern counties taking always the lead—began active operations at a juncture of John’s fortunes most favourable to their aspirations, not only had they no opposition to dread from churchman or merchant, from yeoman or peasant, but they might count on the sympathy of all and the active co-operation of many. Further, John’s policy of misrule had combined against him two interests usually opposed to each other, the party of progress and the party of reaction. The influence of each of these may be clearly read in the various chapters of Magna Carta.
The progressive party consisted mainly of the heads of the more recently created baronial houses, men trained in the administrative methods of Henry II., who desired merely that the system of government they knew should be properly enforced and carried out to its logical conclusions. They demanded chiefly that the King should conduct the business of the Exchequer and Curia according to the rules laid down by Henry II. Routine and order under the new system were what this party desired, and not a return to the unruly days of Stephen. Many of the innovations of the great Angevin had now been loyally and finally accepted by all classes of the nation; and these accordingly found a permanent resting-place in the provisions of the Great Charter. In temporary co-operation with this party, the usually rival party of reaction was willing to act for the moment against the common enemy. There still existed in John’s reign magnates of the old feudal school, who hoped to wrest from the weakened hand of the King some measure of feudal independence. They had indeed accepted such reforms as suited them, but still bitterly opposed many others. In particular, they resisted the encroachments of the royal courts of law which were gradually superseding their private jurisdictions. For the moment, John’s crafty policy, so well devised to gain immediate ends, and so unwise in the light of subsequent history, combined these two streams, usually ready to thwart each other, into a united opposition to his throne. Attacked at the same moment by the votaries of traditional usage and by the votaries of reform, by the barons, the trading classes, and the clergy, no course was left him but to surrender at discretion. The movement which culminated at Runnymede may thus best be understood as the resultant of a number of different but converging forces, some of which were progressive and some reactionary.
II. The Crown and Feudal Obligations.
Among the many evils calling loudly for redress in England at the commencement of the thirteenth century, none spoke with more insistent voice than those connected with feudal abuses. The objection of the northern barons to pay the scutage demanded on 26th May, 1214, was the spark that fired the mine. The most prominent feature of the Charter is the solicitude everywhere displayed to define the exact extent of feudal services and dues, and to prevent these from being arbitrarily increased. A somewhat detailed knowledge of feudalism and feudal obligations forms a necessary preliminary to any exact study of Magna Carta.
The precise relations of the Norman Conquest to the growth of feudalism in England are complicated, and have formed the subject of much controversy. The view now generally accepted, and with reason, is that the policy of William the Conqueror accelerated the process in one direction, but retarded it in another. Feudalism, regarded as a system of government, had its worst tendencies checked, if not eradicated, by the great upheaval that followed the coming of Duke William; feudalism, considered as a system of land tenure, and as a social system, was, on the contrary, formulated and developed. It is mainly as a system of land tenure that it falls here to be considered. Originally, the relationship between lord and tenant, dependent upon the double ownership of land (of which each was, in a different sense, the proprietor), implied obligations on both sides. The lord gave protection, while the tenant owed services of various sorts. It so happened, however, that, with the changes wrought by time, the legal obligations of the lord ceased to be of much importance, while those of the vassal became more and more burdensome. The tenant’s obligations varied in kind and in extent with the nature of the tenure. It is difficult to frame an exact list of the various tenures formerly recognized as distinct in English law: partly because the classical authors of different epochs, from Bracton to Blackstone, contradict each other; and partly because of the obscurity of the process by which these tenures were gradually differentiated. The word “tenure” originally meant “a holding” of any sort. Sir William Blackstone,[64] after explaining the dependent nature of all real property in England, thus proceeds: “The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure.” Tenure thus comes to mean the conditions on which a tenant holds real estate under his lord, and the number of tenures varies with the number of accepted types.
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Footnote 64:
Commentaries, II. 59.
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The ancient classification differs materially from that in use at the present day. The modern English lawyer (unless of an antiquarian turn of mind) concerns himself only with three tenures: freehold (now practically identical with socage), copyhold and leasehold. The two last-mentioned may be rapidly dismissed, as they were of little importance in the eyes of Littleton, or of Coke: leasehold embraces only temporary interests, such as those of a tenant-at-will or for a limited term of years; while copyhold is the modern form of tenure into which the old unfree villeinage has slowly ripened. The ancient writers were, on the contrary, chiefly concerned with holdings both permanent and free (as opposed to leaseholds on the one hand and villeinage on the other). Of such free tenures seven at least may be distinguished in the thirteenth century, all of which have now come to be represented by the same one of the three recognized modern tenures, namely, freehold or socage. The free holdings existing in medieval England may be ranged under the following heads, viz.: knight’s service, free socage, fee-farm, frankalmoin, grand serjeanty, petty serjeanty, and burgage.
(1) Knight’s Service. Medieval feudalism had many aspects; it was almost as essentially an engine of war as it was a system of land-holding. The normal return for which an estate was granted consisted of the service in the field of a specific number of knights. Thus the normal feudal holding was known as knight’s service, or tenure in chivalry—the conditions of which must be constantly kept in view, since by these rules the relations between John and his recalcitrant vassals fell to be determined. When finally abolished at the Restoration, there fell with knight’s service, it is not too much to say, the feudal system of land tenure in England. “Tenure by barony” is sometimes spoken of as a separate species, but may be more correctly viewed as a variety of tenure in chivalry.[65]
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Footnote 65:
See Pollock and Maitland, History of English Law, I. 218.
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(2) Free Socage. The early history of socage, with its division into ordinary and privileged, is involved in obscurities which do not require to be unravelled for the purpose at present on hand. The services which had to be returned for both varieties were not military but agricultural, and their exact nature, and amount varied considerably. Although not so honourable as chivalry, free socage was less burdensome in respect that two of the most irksome of the feudal incidents, wardship and marriage, did not apply. When knight’s service was abolished those who had previously held their lands by it, whether under the Crown or under a mesne lord, were henceforward to hold in free socage, which thus came to be the normal holding throughout England after the Restoration.[66]
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Footnote 66:
See Statute 12 Charles II. c. 24.
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(3) Fee-farm was the name applied to lands held in return for services which were neither military nor agricultural, but consisted only of an annual payment in money. The “farm” thus indicates the rent paid, which apparently might vary without limit, although it was long maintained that a fee-farm rent must amount at least to one quarter of the annual value. This error seems to have been founded on a misconstruction of the Statute of Gloucester.[67] Some authorities[68] reject the claims of fee-farm to rank as a tenure separate from socage; although chapter 37 of Magna Carta seems to recognize the distinction.
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Footnote 67:
See Pollock and Maitland, I. 274, n.
Footnote 68:
Pollock and Maitland, I. 218.
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(4) Frankalmoin is the tenure by which pious founders granted lands to the uses of a religious house. It was also the tenure on which the great majority of glebe lands throughout England were held by the village priests, the parsons of parish churches. The grant was usually declared to have been made in liberam eleemosinam or “free alms” (that is, as a free gift for which no temporal services were to be rendered).[69] In Scots charters the return formally stipulated was preces et lacrymae (the prayers and tears of the holy men of the foundation for the soul of the founder).
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Footnote 69:
Littleton, II. viii. s. 133.
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(5) Grand serjeanty was a highly honourable tenure sharing the distinctions and the burdensome incidents of knight’s service, but distinct in this, that the tenant, in place of ordinary military duties, performed some specific office in the field, such as carrying the King’s banner or lance, or else acted as his constable or marshal or other household officer in the palace, or performed some important service at the coronation.[70]
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Footnote 70:
Littleton, II. viii. s. 153.
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An often-quoted example of a serjeanty is that of Sir John Dymoke and his family, who have acted as the Sovereign’s champions at successive coronations from Richard II. to Queen Victoria, ready to defend the Monarch’s title to the throne, if questioned, by battle in the ancient form.
Grand serjeanties were liable to wardship and marriage, as well as to relief, but not, as a rule, to payment of scutage.[71] William Aguilon, we are told by Madox,[72] "was charged at the Exchequer with several escuages. But when it was found by Inquest of twelve Knights of Surrey that he did not hold his lands in that county by military tenure, but by serjeanty of finding a Cook at the King’s coronation to dress victuals in the King’s kitchen, he was acquitted of the escuages."
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Footnote 71:
Littleton, II. viii. s. 158.
Footnote 72:
History of Exchequer, I. 650, citing Pipe Roll of 18 Henry III.
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(6) Petty serjeanty may be described in the words of Littleton as “where a man holds his lands of our lord the king to yield to him yearly a bow or sword, or a dagger or a knife ... or to yield such other small things belonging to war.”[73]
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Footnote 73:
See Littleton, II. ix. s. 159. With this may be compared the definition given in chapter 37 of Magna Carta, where John speaks of land thus held by a vassal as “quam tenet de nobis per servitium reddendi nobis cultellos, vel sagittas vel hujusmodi.”
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The grant of lands on such privileged tenures was frequently made in early days on account of the special favour entertained by the King for the original grantee, due, it might be, to the memory of some great service rendered at a critical juncture to the King’s person or interests. A few illustrative examples may be cited from the spirited description of a scholar whose accuracy can be relied upon. Serjeanties, as Miss Bateson tells us, "were neither always military nor always agricultural, but might approach very closely the service of knights or the service of farmers.... The serjeanty of holding the King’s head when he made a rough passage across the Channel, of pulling a rope when his vessel landed, of counting his chessmen on Christmas Day, of bringing fuel to his castle, of doing his carpentry, of finding his potherbs, of forging his irons for his ploughs, of tending his garden, of nursing the hounds gored and injured in the hunt, of serving as veterinary to his sick falcons, such and many other might be the ceremonial or menial services due from a given serjeanty."[74]
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Footnote 74:
Mediaeval England, pp. 249-250. A similar tenure still exists in Scotland under the name of "blench"—a tenure wherein the reddendo is elusory, viz., the annual rendering of such small things as an arrow or a penny or a peppercorn, “if asked only” (si petatur tantum).
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In the days before legal definition had done its work, it must often have been difficult to say on which side of the line separating Petty Serjeanties from Grand Serjeanties any particular holding fell. Gradually, however, important and practical distinctions were established, making it necessary that the boundary should be defined with accuracy. In particular, the rule was established that Petty Serjeanties, while liable for relief, were exempt altogether from the burdensome incidents of wardship and marriage, which Grand Serjeanties shared with lands held by ordinary Barony or Knight’s service.[75] Thus the way was prepared for the practical identification of the Petty Serjeanties with ordinary socage at a later date.
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Footnote 75:
Littleton, II. viii. s. 158.
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(7) Burgage, confined exclusively to lands within free boroughs, is mentioned as a separate tenure by Littleton,[76] and his authority receives support from the words of chapter 37 of Magna Carta. Our highest modern authorities,[77] however, consider that it never acquired sufficiently distinct characteristics to warrant its acknowledgment as such. They treat it rather as a special variety of socage, used where the tenants were the members of a corporation. If their opinion must be accepted for England, it follows that, from common antecedents, entirely different results have developed in Scotland and in England respectively. While, north of the Tweed, several of the well-established English tenures have failed to make good their right to separate recognition, burgage has established itself beyond a doubt. Even the levelling process consummated by the Conveyancing (Scotland) Act of 1874 has not entirely abolished its separate existence.
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Footnote 76:
Ibid., II. x. s. 162.
Footnote 77:
Pollock and Maitland, I. 218.
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The explanation of such differences between English and Scottish usage easily suggests itself. When feudalism first took root, the various shades of distinction in the conditions of holding were exceedingly numerous, and merged into one another by imperceptible degrees. The work of definition came later, was essentially artificial in its nature, and assumed different forms in different lands.[78]
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Footnote 78:
Littleton and Coke seem almost to countenance two additional tenures, viz., tenure by scutage or escuage, and tenure by Castle-guard. Pollock and Maitland consider both as alternative names for knight’s service. (See I. 251 and I. 257.) The latter is discussed infra under c. 29 of Magna Carta.
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These tenures, originally six or seven (according as we exclude or include burgage), have yielded to the unifying pressure of many centuries. Frankalmoin and Grand Serjeanty still exist, but rather as ghosts than realities; the others have all been swallowed up in socage, which has thus become practically identical with “free-hold.”[79] This triumph of socage is the result of a long process. Fee-farm, burgage, and petty serjeanty, always possessing many features in common, were gradually assimilated in almost all respects, while a statute (12 Charles II. c. 24) transformed tenure in chivalry also into socage. The once humble socage has thus risen high, and now embraces most of the land of England.[80]
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Footnote 79:
Jenks, Modern Land Law, p. 14.
Footnote 80:
It has been well described by Pollock and Maitland (I. 294) as “the great residuary tenure.” In Scotland the “residuary tenure” is not socage but “feu” (resembling the English fee-farm). Holdings in feu are still familiar to Scots lawyers. They are originated by a formal charter, followed by registration (the modern equivalent of infeftment or feudal investiture), thus preserving an unbroken connection with the feudal conveyancing of the Middle Ages.
The interest of historians naturally centres round tenure by knight’s service, which is the very kernel of the feudal system. Lack of definition in the middle ages was a fruitful source of quarrel. For a century and more after the Norman Conquest, the exact amount and nature of the military services due by a tenant to his lord were left vague and undetermined. The early Norman Kings had gradually superseded the old Anglo-Saxon Crown tenants by new ones of Norman or French extraction, without formulating any code of regulations for the future. The whole of England had thus been carved into a number of estates—the larger known as honours or baronies, and the smaller as manors. Each Crown tenant (with two exceptions, of which the Conqueror’s favourite foundation of Battle Abbey was one) held his lands on condition of furnishing a certain number of fully armed and mounted soldiers, always ready to obey the King’s summons in the event of war. High authorities differ as to when and by whom the amount of each vassal’s service was fixed. The common view (promulgated by Prof. Freeman[81] with his usual vehemence), attributes the allocation of specific service to Ranulf Flambard, the unscrupulous tool of William Rufus. Mr. J. H. Round[82] has recently urged convincing reasons in support of the older view which attributes it to William I. Two facts, apparently, are certain: that within half a century from the Conquest each military tenant was burdened with a definite amount of knight’s service; and, further, that no formal record of the amount of such service was made at the time. There were, as yet, no written charters, and thus the possibility of disputes remained. Probably such grants would be made in full Curia, and the only record of the conditions would lie in the memory of the Court itself.
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Footnote 81:
Norman Conquest, V. 377; Hist. of William Rufus, 335–7.
Footnote 82:
Feudal England, p. 228 et seq.
Long before the date of Magna Carta, the various obligations had been grouped into three classes, which may be arranged according to their relative importance, as services, incidents, and aids. Under each of these three heads, disputes continually arose between the lord who exacted and the vassal who rendered them.[83]
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Footnote 83:
All three forms of feudal obligation—service, incidents, and aids—have long been obsolete in England. The statute 12 Charles II. c. 24 swept away the feudal incidents along with the feudal system; centuries before, scutages in lieu of military service had become obsolete in the transition from the system of feudal finance to that of national finance, effected by the Crown in the thirteenth and fourteenth centuries. Feudal aids were also long obsolete, although James I., in desperate straits for money, had attempted to revive two of them. In France the feudal system, with all its burdensome obligations, remained in full vigour until it was abolished in one night by the famous decree of the National Assembly of 4th August, 1790. In Scotland, the feudal system of land tenure still exists, and certain of its incidents (e.g. reliefs and compositions or fines for alienation) are exacted at the present day.
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The very essence of the feudal relation between the King as overlord and the Crown tenant as vassal consisted in the liability of the latter to render “suit and service,” that is, to follow his lord’s banner in time of war, and to attend his court in time of peace. It will be more convenient, however, to reserve full consideration of these services until the comparatively uncomplicated obligations known as incidents and aids have been first discussed.
I. Feudal Incidents. In addition to “suit and service,” the lord reaped, at the expense of his tenants, a number of casual profits, which thus formed irregular supplements to his revenue. These profits, accruing, not annually, but on the occurrence of exceptional events, came to be known as “feudal incidents.” They were gradually defined with more or less accuracy, and their number may be given as six, viz.:
Reliefs, Escheats, Wardships, Marriages, Primer seisins, and Fines for Alienation.[84]
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Footnote 84:
Blackstone, Commentaries, II. 63, however arranges these in a different order, and mentions as a seventh incident “aids,” which are here reserved for separate treatment.
(a) Relief is easily explained. The fee, or feudum, or hereditary feudal estate, seems to have been the result of a gradual evolution from the old beneficium (or estate held merely for one lifetime), and that again from the older precarium (or estate held only during the will of the overlord). Grants of land, originally subject to revocation by the lord, had gradually attained fixity of tenure throughout the life of the original grantee; and, later on, they became transmissible to his descendants. The hereditary principle at last completely triumphed; the Capitulary of Kiersey (A.D. 877) is said to be the first authoritative recognition of the heir’s absolute right to succeed. The process was a gradual one, and it would seem that even after the Norman Conquest, this rule of hereditary descent was not established beyond possibility of dispute.[85] This right of the heir to succeed always remained subject to one condition, namely, the payment of a sum of money known as “relief.” This was theoretically an acknowledgment that the new tenant’s right to ownership was incomplete, until recognized by his superior—a reminiscence of the earlier precarium from which the feudum had developed.
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Footnote 85:
See Pollock and Maitland, I. 296.
Relief, then, is the sum payable to a feudal overlord by an heir for recognition of his title to succeed the last tenant in possession. The amount remained long undefined, and the lord frequently asked exorbitant sums.[86]
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Footnote 86:
See infra, under c.2, for the steps in the gradual process whereby this evil was redressed.
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(b) Escheat, it has been said, "signifies the return of an estate to a lord, either on failure of issue from the tenant or upon account of such tenant’s felony."[87] This lucid description conveys a good general conception of escheat; but it is inaccurate in at least two respects. It does not exhaust the occasions on which escheat occurs, and it errs in speaking of “the return” of an estate to a lord, when, more accurately, that estate had never left him, but always remained his property, subject only to a burden, which was now removed. In theory, the feudal grant of lands was always conditional; and when the condition was broken, the grant fell, and the lord found himself, automatically as it were, once more the absolute unburdened proprietor, as he had been before the grant was made. Thereafter, he held the land in demesne, unless he chose to make a new grant to another tenant. The word “escheat” was applied indifferently to the lord’s right to such reversions, and to the actual lands which had thus reverted. In warlike and unsettled times the right was a valuable one, for whole families might become rapidly extinct. When the last tenant left no heir, it was obvious that the original grant had exhausted itself. Similarly, when a landholder was convicted of felony, his blood became, in the phrase of a later day, attainted, and no one could succeed to any estate through him. If a man failed in the ordeal of water provided by the Assize of Clarendon in 1166 for those accused of heinous crimes, his estates also escheated to his lord. It is true that a complication arose when it was of treason that the tenant had been convicted. In that case the king, as the injured party, had prior rights which excluded those of the lord. The lands of traitors were forfeited to the Crown. Even in the case of felony the king had a limited right to the lands during a period which was strictly defined by Magna Carta.[88]
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Footnote 87:
R. Thomson, Magna Charta, p. 236.
Footnote 88:
Infra, c. 32.
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The tenant’s felony and failure of issue were the two main grounds of escheat, but not the only ones; the goods of fugitives from justice and of those who had been formally outlawed also escheated, and Glanvill adds another case,[89] namely, female wards guilty of unchastity (an offence which spoiled the king’s market). Failure to obey a summons to the feudal levy in time of war might also be made a ground of forfeiture.[90]
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Footnote 89:
VII. 17.
Footnote 90:
Madox, I. 663.
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Escheat was thus a peculiarly valuable right both to the Crown and to mesne lords. Its effect was simply this: one link in the feudal chain was struck out, and the links on either side were fitted together. If the defaulter was a Crown tenant, all his former sub-tenants, whether freeholders or villeins, moved up one rung in the feudal ladder and held henceforward directly of the king, who enjoyed the entire complexus of legal rights previously enjoyed by the defaulter in addition to those previously enjoyed by himself: rents, crops, timber, casual profits, and advowsons of churches falling vacant; jurisdictions and the profits of jurisdictions; services of villeins; reliefs, wardships, and marriages of freeholders as these became exigible.
The Crown, however, while taking everything the defaulter might have taken before default, must take nothing more—so at least Magna Carta[91] provides. The rights and status of innocent sub-tenants must not be prejudiced by the misdeeds of their defaulting mesne lord.
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Footnote 91:
See infra, c. 43.
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(c) Wardships are described in the Dialogus de Scaccario as “escheats along with the heir” (escaeta cum herede).[92] This expression does not occur elsewhere, but it would be impossible to find any description of wardship which throws more light on its nature and consequences. When the heir of a deceased tenant was unfitted to bear arms by reason of his tender years, the lands were practically, during his minority, without an effective owner. The lord accordingly treated them as temporarily escheated. During the interval of nonage, the lord entered into possession, drew the revenues, and applied them to his own purposes, subject only to the obligation of maintaining and training the heir in a manner suited to his station in life. Frequently, considerable sums were thus spent. The Pipe Roll of the seventeenth year of Henry II. shows how out of a total revenue of £50 6s. 8d. from the Honour of “Belveeir,” £18 5s. had been expended on the children of the late tenant.[93] Wardship came to an end with the full age of the ward, that is, in the case of a military tenant, on the completion of his twenty-first year, “in that of a holder in socage on the completion of the fifteenth, and in the case of a burgess when the boy can count money, measure cloth, and so forth.”[94] Wardship of females normally ended at the age of fourteen, "because that a woman of such age may have a husband able to do knight’s service."[95]
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Footnote 92:
See Hughes’ edition, p. 133.
Footnote 93:
See Dialogus, p. 222 (citing Pipe Roll, p. 27).
Footnote 94:
Glanvill, VII. c. 9. In socage and burgage tenures no incident of wardship was recognized; the guardianship went to the relations of the ward, and not to his feudal lord. Somewhat complicated, but exceedingly equitable, rules applied to socage. The maternal kindred had the custody, if the lands came from the father’s side; the paternal kindred, if from the mother’s side (Glanvill, VII. c. 11). In plain language, the boy and his property were entrusted to those who had no interest in his death.
Footnote 95:
Littleton, II. iv. s. 103.
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All the remunerative consequences flowing from escheat flowed also from wardship—rents, casual profits, advowsons, services of villeins, and reliefs. Unlike escheats, however, the right of the Crown here was only temporary, and Magna Carta sought[96] to provide that the implied conditions should be respected by the Crown’s bailiffs or nominees. The lands must not be wasted or exhausted, but restored to the young owner when he came of age in as good condition as they had been at the commencement of the wardship.
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Footnote 96:
See under c. 5.
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One important aspect of this right ought to be specially emphasized. The Crown’s wardship affected bishoprics as well as lay baronies, extending over the temporalities of a See between the death of one prelate and the instalment of his successor. Thus, it was to the king’s interest to place obstacles in the way of all appointments to vacant sees, since the longer the delay, the longer the Exchequer drew the revenues and casual profits.[97]
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Footnote 97:
What these were may be read in the Pipe Rolls, e.g., in that of 14 Henry II., when the Bishopric of Lincoln was vacant.
This right was carefully reserved to the Crown, even in the very comprehensive charter in which John granted freedom of election, dated 21st November, 1214.[98]
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Footnote 98:
See Statutes of the Realm, Ch. of Liberties, p. 5, and Sel. Charters, p. 288: “Salva nobis et haeredibus nostris custodia ecclesiarum et monasteriorum vacantium quae ad nos pertinent.” Contrast the terms of Stephen’s Oxford Charter; Sel. Charters, pp. 120-1.
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(d) Marriage as a feudal incident belonging to the lord is difficult to define generally, since its meaning changed. Originally it seems to have implied little more than the right of a lord to forbid an heiress, holding a fief under him, to marry a personal enemy, or some one otherwise unsuitable. Such veto was only reasonable, since the husband of the heiress would become the owner of the fee and the tenant of the lord. This negative right had almost necessarily a positive side; the claim to concur in the choice of a husband gradually expanded into an absolute right of the lord to dispose by sale or otherwise of the lands and person of his female ward. The prize might go as a bribe to any unscrupulous gentleman of fortune who placed his sword at the King’s disposal, or it might be made the subject of auction to the highest bidder. The lady passed as a mere adjunct to her own estates, and ceased, strictly speaking, to have any voice in choosing a partner for life. She might protect herself indeed against an obnoxious husband by out-bidding her various suitors. Large sums were frequently paid for leave to marry a specified individual or to remain single.
This right seems, at some uncertain date, to have been extended from females to males, and instances of sums thus paid occur in the Pipe Rolls. It is difficult at first sight to imagine how the Crown found a market for such wares as male wards; but probably wealthy fathers were ready to purchase desirable husbands for their daughters. Thus in 1206 a certain Henry of Redeman paid forty marks for the hand and lands of the heir of Roger of Hedon, “ad opus filiae suae,”[99] while Thomas Basset secured a prize in the person of the young heir of Walerand, Earl of Warwick, to the use of any one of his daughters.[100] This extension to male heirs is usually explained to have been founded on a strained construction of chapter 6 of Magna Carta, but the beginnings of the practice can be traced much earlier than 1215.[101] The lords’ right to sell their wards was recognized and defined by the Statute of Merton, chapter 6. The attempts made to remedy some of the most serious abuses of the practice may be read in Magna Carta.[102]
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Footnote 99:
Rotuli de oblatis et finibus, p. 354.
Footnote 100:
Rot. Claus., pp. 37, 55.
Footnote 101:
Pollock and Maitland, I. 305.
Footnote 102:
See infra, under chapters 6, 7, and 8.
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Mr. Hallam[103] considers that “the rights, or feudal incidents, of wardship and marriage were nearly peculiar to England and Normandy,” and that the French kings[104] never “turned this attribute of sovereignty into a means of revenue.”
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Footnote 103:
Middle Ages, II. 429.
Footnote 104:
p. 437.
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(e) Primer Seisin, which is usually regarded as a separate incident, and figures as such in Blackstone’s list, is perhaps better understood, not as an incident at all, but rather as a special procedure—effective and summary—whereby the Crown could enforce the four incidents already described. It was an exclusive prerogative of the Crown, denied to mesne lords.[105] When a Crown tenant died, the King’s officers had the right to enter upon immediate possession, and to exclude the heir, who could not touch his father’s lands without specific permission from the Crown. He had first to prove his title by inquest, to give security for any balance of relief and other debts unpaid, and to perform homage.[106] It will be readily seen what a strong strategic position all this assured to the King in any disputes with the heir of a dead vassal. If the Exchequer had doubtful claims against the deceased, its officials could satisfy themselves before admitting the heir to possession. If the heir showed any tendency to evade payment of feudal incidents, the Crown could checkmate his moves. If the succession was disputed, the King might favour the claimant who pleased or paid him most; or, under colour of the dispute, refuse to disgorge the estate altogether—holding it in custody analogous to wardship, and meanwhile drawing the profits. If the son and heir happened to be from home when his father died, he would probably experience great difficulty, when he returned, in forcing the Crown to restore the estates. Such was the experience of William Fitz-Odo on returning from Scotland in 1201 to claim his father’s carucate of land in Bamborough.[107] Primer seisin was thus not so much a separate incident, as a right peculiar to the Crown to take summary measures for the satisfaction of all incidents or other claims against a deceased tenant or his heir. Magna Carta admitted this prerogative whilst guarding against its abuse.[108]
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Footnote 105:
The Bishop of Durham enjoyed it, so it seems to be stated in a charter extorted from him in 1303 by the men of his fief (see Lapsley, Pal. of Durham, p. 133). But this forms no real exception; since the Bishop, as an Earl Palatine, enjoyed exceptionally the regalia of a king.
Footnote 106:
See Pollock and Maitland, I. 292. It appears from statute of Marlborough, c. 16, that primer seisin extended over lands held by serjeanty as well as by knight’s service.
Footnote 107:
Rotuli de oblatis, p. 114.
Footnote 108:
Sir Edward Coke (Coke upon Littleton, 77 A) is the original source of much confusion as to the nature of primer seisin, which he seems to have considered as a second and additional relief exacted by the Crown amounting to the whole rent of the first year. The Popes, he further held (equally erroneously), were only imitating this practice when they exacted one year’s rent from every newly granted benefice under the name of “first fruits.” These errors have been widely followed (e.g. Thomson, Magna Charta, p. 416, Taswell Langmead, Const. Hist., p. 50).
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(f) Fines for alienation occupy a place by themselves. Unlike other incidents already discussed, they became exigible not on the tenant’s death, but on his wishing to part with his estate to another during his own lifetime, either as a gift or in return for a price. How far could he effect this without consent of his lord? This was, for many centuries, a subject of frequent and heated disputes, often settled by compromises, in which the tenant paid a fine to the lord for permission to sell. Such fines are payable at the present day in Scotland (under the name of “compositions”) from feus granted prior to 1874; and, where no sum has been mentioned in the Feu Charter, the law of Scotland defines the amount exigible as one year’s rent. John’s Magna Carta contains no provisions on this subject. Disputes, long and bitter, took place later in the thirteenth century; but their history is irrelevant to the present inquiry.[109]
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Footnote 109:
See Taswell Langmead, Const. Hist., pp. 51-2; also Pollock and Maitland, II. 326. Cf., however, c. 39 of the re-issue of Magna Carta in 1217.
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II. Feudal Aids. The feudal tenant, in addition to fulfilling all the essentials of the feudal relation and also all the burdensome incidents already enumerated, was expected to come to the aid of his lord in any special crisis or emergency. The help thus rendered was by no means reckoned as a payment to account of the other obligations, which had also to be paid in full. The additional sums thus given were technically known as “aids.” At first, the occasions on which these might be demanded were varied and undefined. Gradually, however, they were limited to three. Glanvill,[110] indeed, mentions only two, namely, the knighting of the overlord’s eldest son, and the marriage of his eldest daughter; but he intends these, perhaps, merely as illustrations rather than as forming an exhaustive list. Before the beginning of the thirteenth century the recognized aids were clearly three—the ransoming of the king and the two already mentioned. This understanding was embodied in Magna Carta.[111]
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Footnote 110:
IX. c. 8.
Footnote 111:
See infra, under chapter 12.
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A tradition has been handed down from an early date, that these aids were in reality voluntary offerings made by the tenant as a mark of affection, and forming no part of his legal obligations.[112]
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Footnote 112:
Thus, the Abingdon version of the Anglo-Saxon Chronicle (II. 113) speaks of “auxilium quod barones michi dederunt”; while Bracton says (Book II. c. 16, s. 8): “Auxilia fiunt de gratia et non de jure; cum dependeant ex gratia tenentium, et non ad voluntatem dominorum.”
This plainly became, however, a legal fiction, as regarded the aids acknowledged by customary law; the tenant dared not refuse to pay the recognized three. As regarded any further payments, it was by no means a fiction. When the Crown desired to exact contributions for any other reason, it required to obtain the consent of the commune concilium. This, for example, was done by Henry III. before taking an aid on the marriage of his eldest sister. The importance of the necessity for such consent can hardly be exaggerated in its bearing on the origin of the rights of Parliament.
The Great Charter, while confirming the tacit compromise arrived at by custom, whereby only the three aids might be taken without consent of the baronage, left the amount of such aids undefined, contenting itself with the extremely vague provision that they should be “reasonable.” Examples of such payments, both before and after the Charter, are readily found in the Exchequer Rolls. Thus, in the fourteenth year of Henry II., that king took one mark per knight’s fee on marrying his daughter Maud to the Duke of Saxony. Henry III. took 20s. and Edward I. 40s. for a similar purpose. For Richard’s ransom, 20s. had been exacted from each knight’s fee (save those owned by men actually serving in the field); and Henry III. took 40s. in his thirty-eighth year at the knighting of his son. Probably there existed, at an early date, some understanding as to the limits within which “reasonableness” should be reckoned, but the amount was never stated in black and white before the third year of Edward I. The Statute of Westminster I.[113] fixed the “reasonable” aid payable, not to the Crown but, to mesne lords at 20s. per knight’s fee, and 20s. for every estate in socage of £20 annual value. This rate, it will be observed, is one-fifth of the knight’s relief.[114] The Crown, in thus enforcing “reason” on mesne lords, seems never to have intended that the same limit should hamper its own dealings with Crown tenants, but continued to exact larger sums whenever it thought fit.[115]
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Footnote 113:
3 Edward I. c. 36.
Footnote 114:
Fixed at 100s. by c. 2 of Magna Carta.
Footnote 115:
One entry in the Memoranda Roll of 42 Henry III. (cited Madox I. 615) seems at first sight to contradict this. It seems in that year to be admitted that the Crown could not exact more than 20s. of aid per knight’s fee; but in 1258 the baronial opposition would be strong in the Exchequer as elsewhere.
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Thus £2 per fee was taken in 1346 at the knighting of the Black Prince. A Statute of Edward III.[116] at last extended to the Crown the same measure of “reasonableness” as had been applied three-quarters of a century earlier to mesne lords. The last instances of the exaction of aids in England occur as late as the reign of James I., who, in 1609, demanded one for the knighting of the ill-fated Prince Henry, and in 1613 another for the marriage of his daughter Elizabeth to the Prince of Orange.
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Footnote 116:
25 Ed. III. stat. 5, c. 11.
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III. Suit and Service. This phrase expresses the essential obligations inherent in the very nature of the feudal relation. It may be expanded (as regards tenure in chivalry) into the duty of attendance at the lord’s court, whether it met for administrative or judicial purposes, or for reasons of mere display, and the further duty of military service under that lord’s banner in the field. Suit, or attendance at court, had ceased to be an urgent question before the reign of John. Indeed, the barons, far from objecting to be present there, were gradually approaching the modern conception, which regards it as a privilege rather than a burden to attend the commune concilium—the embryo Parliament—of the King. They urged, in especial, that only in a full feudal court, at which each great Crown tenant had a right to appear, could any one of their number be judged in a plea involving loss of lands or of personal status.[117]
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Footnote 117:
See infra, under chapter 39.
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It was far otherwise with the duties of military service, which were rendered every year more unwillingly, partly because of the increased frequency of warlike expeditions, partly because of the greater cost of campaigning in distant lands like Poitou, partly because the English barons were completely out of sympathy with John’s foreign policy and with him. We have seen that the want of definition and looseness of practice in the reign of William the Conqueror left to future ages a legacy fertile in disputes. William I. and his barons lived in the present; and the present did not urgently call for definition. Therefore, the exact duration of the military service to be rendered, and the exact conditions (if any) on which exemption could be claimed, were left originally quite vague. Such carelessness is easily explained. Both Crown and barons hoped that by leaving matters undefined, they would be able to alter them to their own advantage. This policy was sure to lead to bitter quarrels in the future, but circumstances delayed their outbreak. The magnates at first readily followed William to the field wherever he went, since their interests were identical with his, while warfare was their normal occupation.
The exact amount of military service was gradually fixed by custom, and both sides acquiesced in reckoning the return due (servitium debitum) for each knight’s fee or scutum as the service of one fully armed horseman during forty days. There were still, however, innumerable minor points on which disputes might arise, and these remained even in 1215. Indeed, although several chapters of the Great Charter attempted to settle certain of these disputed points, others were left as bones of contention to subsequent reigns: for example, the exact equipment of a knight; the liability to serve for more than forty days on receiving pay for the extra time; what extent of exemption (if any) might be claimed by churchmen holding baronies on the ground that they could not fight in person; how far a tenant might compromise for actual service by tendering money; whether attendance and money might not both be refused, if the King did not lead his forces in person; and whether service was equally due from all estates for foreign wars as for home ones.[118]
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Footnote 118:
Some of these questions might be answered in particular cases by the terms of special charters. Thus the Hundred Rolls (1279) relate how Hugh de Plesens held the Manor of Hedington, and was liable for one knight’s fee when scutage ran; that he must go with the King and serve him for forty days at his own expense, and thereafter at the expense of the King. Rot. Hund., II. p. 710; cf. for France, Etablissements de St. Louis, I. c. 65.
Such difficulties were increased, as time went on, rather than removed. The Conqueror’s followers had possessed, like their lord, estates on both sides of the Channel: his wars were theirs. Before John’s reign, these simple relations had become complicated by two considerations. By forfeitures and the division of inheritances between sons of one father, holders of English fiefs and holders of Norman fiefs had become distinct; the English barons had in 1213 nothing at stake in the Crown’s selfish schemes of aggrandisement or defence. The England of John Lackland, like the England of William of Orange, objected to be entangled in foreign wars in the interests of foreign possessions of the King. On the other hand, the gradual expansion of the dominions of the wearers of the English Crown increased the number of their wars with the number of their interests, and increased, too, the trouble and expense of each expedition. The small wars with Wales and Scotland formed a sufficient drain on the resources of English magnates without their being summoned in intermediate years to fight in Maine or Gascony. The greater number of campaigns might well be reckoned a breach of the spirit of the original agreement.
Were the barons bound to follow John in a forlorn attempt, of which they disapproved, to recover his lost fiefs from the French Crown? Or were they bound to support him only in his legitimate schemes as King of England? Or were they, by way of compromise, liable for services in the identical possessions held by William the Conqueror at the date when their ancestors first got their fiefs—that is, for wars in England and Normandy alone? Tenderness for legal subtleties or strict logic could hardly be expected from the malcontents of the northern counties, smarting under a dumb sense of wrong. Despising all nice definition, they declared roundly in 1213 that they owed no service whatsoever out of England.[119] This extreme claim put them clearly in the wrong, since John had many precedents to the contrary ready to lay before them. When the King, on his return from his unfortunate expedition in 1214, demanded a scutage from all who had not followed him to Poitou, the malcontents declared that they had no obligation either to follow him out of the kingdom, or to pay a scutage in lieu thereof.[120] Pope Innocent was probably correct in condemning this contention as founded neither on English law nor on feudal custom.[121] There is some ground for believing that a compromise was mooted on the basis that the barons should agree to serve in Normandy and Brittany, as well as in England, on being exempted from fighting elsewhere abroad.[122]
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Footnote 119:
See R. Coggeshall, p. 167; the barons argued non in hoc ei obnoxios esse secundum munia terrarum suarum.
Footnote 120:
W. Coventry, II. 217.
Footnote 121:
See his letter dated 1st April, 1215, in New Rymer, I. 128, ordering the barons to pay the scutage of Poitou.
Footnote 122:
The evidence for this is chiefly inferential, but would be greatly strengthened if we could establish the genuineness of the charter discussed by Mr. J. H. Round, Mr. Prothero, and Mr. Hubert Hall in Eng. Hist. Rev., VIII. 288, and IX. 117 and 326. See the document in Appendix.
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A definite understanding on this vital question was never arrived at—not even on paper, since chapter 16 of Magna Carta contented itself with the bald provision that existing services were not to be increased (without defining what these were). This was merely to shelve the difficulty: the dispute went on under varying forms and led to a violent clashing of wills in the unseemly wrangle between Edward I. and his Constable and Marshal, dramatized in a classic passage by Walter of Hemingburgh.[123] Strangely enough, the Confirmatio Cartarum of 1297, which was, in part, the outcome of this later quarrel, omits (like Magna Carta itself)[124] all reference to foreign service. The total omission from both charters of all mention of the chief cause of dispute is noteworthy. It must be remembered, however, that the question of liability to serve abroad had practically resolved itself into that of liability to scutage, and that chapters 12 and 14 of the Charter of 1215 provided an adequate check on the levy of all scutages; but this is a subject of crucial importance, which requires separate and detailed treatment.
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Footnote 123:
Chronicon, II. 121.
Footnote 124:
See, however, infra under c. 16.
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IV. Scutage. The Crown did not always insist on actual personal service, but was frequently willing to accept a commutation in the form of a money payment. This subject of scutage is one of the most vexed of questions; all received opinions of yesterday having to-day been thrown into the melting pot. Serious attempts constructively to restate the whole subject have hardly been made; and no conclusions have yet received general acceptance.
Three modifications, however, of the theories of Stubbs and Freeman, once universally accepted, seem likely to be soon established: (1) that “scutage” is an ambiguous term with a vague general meaning as well as a narrow technical meaning; (2) that the importance of the changes introduced by Henry II. in 1156 and 1159 has been much exaggerated; and (3) that at a later time, probably during John’s reign, scutage changed its character. It ceased to be normally a commutation of service, since it was not infrequently exacted by the Crown in addition to military service actually performed. Each of these propositions requires explanation.
“Scutagium,” or “shield-money,” often means, it is true, a specific sum of so much per knight’s fee (normally twenty shillings) accepted by the King in lieu of the personal service in his army due by his tenants in capite. Thus it is, as Dr. Stubbs explains, “an honourable commutation for personal service”;[125] but it is also loosely used[126] to denote any exaction whatsoever assessed on a feudal basis (that is, taken exclusively from holders of fiefs) irrespective of the occasion of its levy. Thus, money taken in name of one of the three feudal aids is sometimes described as a scutage; and other instances might be cited.
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Footnote 125:
Stubbs, Const. Hist., I. 632.
Footnote 126:
As was long ago pointed out by Madox, I. 619.
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Again, learned opinion tends towards the belief that Henry II. made no radical or startling alteration. Professor Freeman, Dr. Stubbs, and their adherents familiarized a bygone generation of historians with the view that one of Henry’s most important reforms was to allow his Crown tenants at their discretion to substitute payments in money for the old obligation of personal service in the field—this option being granted to ecclesiastics in 1156, and to lay barons in 1159. Such a theory had a priori much to recommend it. A measure of this nature, while giving volume and elasticity to the resources of the Crown, was calculated subtly to undermine the basis of the feudal tie; but Henry, farseeing statesman as he was, could not discard the ideals of his own generation. No evidence that he made any sweeping change is forthcoming. His grandfather, Henry I., is shown by the evidence of extant charters to have accepted money in place of the services of knights when it suited him (notably from church fiefs in 1109),[127] and there is no evidence (direct or indirect) to show that the grandson accepted such commutation when it did not suit him. The conclusions formulated, with his usual energy, by Mr. J. Horace Round, lie implicitly in the examples from the Pipe Rolls stored in the great work of Madox. From these it would appear that the procedure of the Exchequer of the great Angevin and his two sons might be explained in some such propositions as these:
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Footnote 127:
See Round, Feudal England, p. 268.
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(a) The option to convert service into scutage lay with the Crown, and not with the tenants, either individually or as a body. When the King summoned his feudal army no baron could (as Professor Freeman would have us believe) simply stay away under obligation of paying a small fixed sum to the Exchequer. On the contrary, Henry and his sons jealously preserved the right to insist on personal service whenever it suited them; even efficient substitutes were not always accepted, much less money payments.
(b) If the individual wished to stay at home he required to make a special bargain to pay such fine as the King agreed to accept—and sometimes he had to send a substitute in addition. The Pipe Rolls show many such payments by stay-at-homes ne transfretent or pro remanendo ab exercitu. Thus, in the twelfth year of John’s reign a Crown tenant paid a fine “that he might send two knights to serve for him in the army of Ireland.”[128]
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Footnote 128:
Madox, I. 658.
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Sometimes, indeed, Henry II. might announce that payments at a certain rate would be accepted generally in lieu of service, but this was when it suited him, not when it suited his military tenants. In this connection twenty shillings per fee became recognized as a usual, though by no means a necessary, rate.
(c) In the ordinary case, if the tenant in chivalry neither went in person nor obtained leave from the Crown to stay away, he was in evil plight. Defaulters were “in mercy”; they sometimes forfeited their entire estates to the Crown,[129] and might be glad to accept such terms of pardon as a gracious King condescended to hold out to them. Sometimes, it is true, quite small amercements were inflicted; the Abbot of Pershore in 1196 escaped with an amercement of 40s.[130] Such leniency, however, was exceptional, and the result of special royal clemency.
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Footnote 129:
See Pipe Roll of 12 John, cited in Madox, I. 663.
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Footnote 130:
See Pipe Roll of Richard I., cited ibid.
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The right to determine the amount of amercements to be taken lay within the province of the Barons of the Exchequer, who also judged whether or not lands had escheated by default.
Henry II. seems to have levied money in name of scutage only when actually at war—on seven occasions in all during a reign of thirty-five years; and only once at a rate exceeding 20s., if we may trust Mr. Round,[131] and that when he was putting forth a special effort against Toulouse. Richard I., with all his rapaciousness, levied, apparently, only four scutages during ten years, and the rate of 20s. was never exceeded even in the King’s hour of urgent need,—in 1194, when the arrears of his ransom had to be paid and preparations simultaneously made for war in Normandy.
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Footnote 131:
Feudal England, 277 seq.
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At John’s accession, then, three rules might be regarded as having all the prescriptive force of a long unbroken tradition, namely, (1) that scutage was a reserve for extraordinary emergencies, not a normal yearly burden; (2) that the recognized maximum was 20s. per knight’s fee, while a lower rate (13s.4d. and even 10s.) had occasionally been accepted; and (3) that the payment of scutage to the King at a rate previously fixed by him acted as a complete discharge of all obligations due for that occasion.
If it can be proved that John, almost from his accession, deliberately altered all three of these well-established rules, and that too in the teeth of the keen opposition of a high-spirited baronage whose members felt that their pride and prestige as well as their money-bags were attacked, a distinct step is taken towards understanding the crisis of 1215. Such knowledge would explain why a storm, long brewing, burst in John’s reign, neither sooner nor later; and even why some of the disreputable stories told by the chroniclers and accepted by Blackstone and others, found inventors and willing believers.
It is here maintained that John did make changes in all three directions; and, further, that the incidence of this increase in feudal burdens was rendered even more unendurable by two considerations:—because at his accession there remained unpaid (particularly from the fiefs of the northern knights) large arrears of the scutages imposed in his brother’s reign,[132] and because in June, 1212, John drew the feudal chain tight by a drastic and galling measure. In that month he instituted a strict inquest into the amount of feudal service exigible from every estate in England, to prevent any dues escaping his wide net, and to revive all services and payments that had lapsed or were in danger of lapsing.
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Footnote 132:
Miss Norgate, John Lackland, p. 122.
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That he made the first two changes becomes a certainty from a glance at the table of scutages actually extorted during his reign, as these are here copied from a list compiled by a writer of authority who has no special theory to support,[133] viz.:
First scutage of reign— 1198-9— 2 marks per knight’s fee. Second " " 1200-1 2 " " Third " " 1201-2 2 " " Fourth " " 1202-3 2 " " Fifth " " 1203-4 2 " " Sixth " " 1204-5 2 " " Seventh " " 1205-6 20s. " Eighth " " 1209-10 2 marks " Ninth " " 1210-11 2 " " Tenth " " 1210-11 20s. " Eleventh " " 1213-14 3 marks "
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Footnote 133:
Miss Norgate, John Lackland, p. 123 note, correcting Swereford’s lists in the Red Book of Exchequer.
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It will be seen that, in the very first year of his reign, John took a scutage, and that, too, at a rate above the established normal, at two marks per scutum (only once equalled, thirty years before, and then under special circumstances). Even one such exaction must have made the already sulky Crown tenants look askance.
Next year John wisely allowed them breathing space; then without a break in each of the third, fourth, fifth, sixth and seventh years of his reign, scutages were extorted in quick succession at the high rate of two marks. If John meant to establish this as a new normal rate, he did so not without some show of reason, since that would exactly pay the wages of a knight at 8d. per diem (the rate then current), for a period of forty days (the exact term recognized by public opinion as the maximum of compulsory feudal service).
Fines, in addition to this scutage of two marks, were apparently exacted from those who had not made the necessary compromise for personal service in due time.[134]
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Footnote 134:
See (for year 1201) Ramsay, Angevin Empire, p. 390, and authorities there cited.
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These scutages were collected with increasing difficulty, and arrears gradually accumulated; but the spirit of opposition increased even more rapidly. In 1206, apparently, the breaking point was almost reached.[135] Accordingly, in that year, some slight relaxation was allowed—the annual scutage was reduced from two marks to 20s. John’s needs, however, were as great as ever, and would prevent all further concessions in future years, unless something untoward happened. Something untoward did happen in the summer of 1207, when John quarrelled with the Pope. This event came in time, not as John thought to prevent, but, as the sequel proved, merely to postpone, the crisis of the quarrel with the baronage. John had, for the time being, the whole of the confiscated property of the clergy in his clutches. The day of reckoning for this luxury was still far distant, and the King could meanwhile enjoy a full exchequer without goading his Crown tenants to rebellion. For three years no scutage was imposed. In 1209, however, financial needs again closed in on John, and a new scutage of two marks was levied; followed in the next year actually by two scutages, the first of two marks against Wales, and the second of 20s. against Scotland. John never knew when to stop. These three levies, amounting to a total of five-and-a-half marks per fee within two years, strained the tension almost to breaking point.
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Footnote 135:
Cf. Miss Norgate, John Lackland, p. 125.
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During the two financial years immediately following (Michaelmas, 1211, to Michaelmas, 1213) no scutage was imposed. John, however, although he thus a second time relaxed the tension, had no intention to do so for long. On the contrary, he determined to ascertain if scutages could not be made to yield more in the future. By writs, dated 1st June, 1212, he instituted a great Inquest throughout the land. Commissioners were appointed to take sworn verdicts of local juries as to the amount of liability due by each Crown vassal. Mr. Round[136] considers that previous writers have unaccountably ignored the importance of this measure, “an Inquest worthy to be named in future by historians in conjunction with those of 1086 and 1166,”[137] and describes it as an effort “to revive rights of the Crown alleged to have lapsed.” It is possible that John, by this Inquest of 1212, sought also (unsuccessfully, as the sequel proved) to do what Henry had done successfully in 1166—that is, to increase the amount of knights’ fees on which each Crown tenant’s scutage was assessed by adding to the previous total the number of knights recently enfeoffed.
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Footnote 136:
Commune of London, pp. 273-4.
Footnote 137:
Two historians, however, who have recently given valuable and independent accounts of the reign of John, say little of its value. Sir James Ramsay (Angevin Empire, p. 432) treats it briefly, and Miss Norgate (John Lackland, p. 163) barely notices it.
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John clearly intended by this Inquest, the returns to which were due on the 25th June, 1212, to prepare the necessary machinery for wringing the uttermost penny out of the next scutage when occasion for one again arose. That occasion came in 1214.
Up to this date, even John had not dared to exact a rate of more than two marks per knight’s fee; but the weight of his constant scutages had been increased by the fact that he sometimes exacted personal services in addition, and that he inflicted crushing fines upon those who neither went nor arranged beforehand terms of composition with the King.[138]
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Footnote 138:
Miss Norgate (John Lackland, p. 123) describes the exactions supplementing the scutages: "These scutages were independent of the fines paid by the barons who did not accompany the King on his first return to Normandy in 1199, of the money taken from the host as a substitute for its service in 1201, of the equipment and payment of the ‘decimated’ knights in 1205, and the fines claimed from all the tenants-in-chivalry after the dismissal of the host in the same year, as well as of actual services which many of those who had paid the scutage rendered in the campaigns of 1202-4 and 1206."
Thus gradually and insidiously throughout the entire reign of John, the stream of feudal obligations by many different channels steadily rose until the barons feared that nothing of their property would be saved from the torrent. The normal rate of scutage had been raised, the frequency of its imposition had been increased, the conditions of foreign service had become more burdensome, and the objects of foreign expeditions more unpopular; while attempts were sometimes made to exact both service and scutage in the same year. The limit of the barons’ endurance was reached when, on 26th May, 1214, John, already discredited by his unsuccessful expeditions in Poitou, soon to be followed by the utter overthrow of his allies at Bouvines, issued writs for a scutage at the unheard-of rate of three marks, grounded doubtless on the inquest of 1212 and unusually far-reaching in the subjects which it embraced.[139]
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Footnote 139:
See Miss Norgate, John Lackland, 210, and cf. supra, p. 37.
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Then the final crash came; this writ was like a call to arms—a call not to follow the King’s banner, but to fight against him.
III. Royal Justice and Feudal Justice.
A well-known aphorism of legal text-books, couched in language unusually figurative, declares the King to be “the sole fountain of justice.” Correct as it is to apply this metaphor to the present state of the constitution, it would be an anachronism and a blunder to transport it into the thirteenth century. In John’s reign there still were—as there had been for centuries—not one, but many competing jurisdictions. It was by no means a foregone conclusion that the King’s Courts were the proper tribunals to which a wronged individual must repair to seek redress. On the contrary, the great bulk of the rural population, the villeins, had no locus standi except in the court of the manor to which they belonged; while the doors of the royal Courts had been closed against the ordinary freeman previous to the reign of Henry II. Royal justice was still the exception, not the rule. Each man must seek redress, in the ordinary case, in his own locality. To dispense justice to the nation at large was no part of the normal business of a medieval King.
I. Rival Systems of Law Courts. In the thirteenth century, there existed not one source of justice, but many. Rival courts, eagerly competing to extend their own sphere of usefulness and to increase their own fees, existed in a bewildering multitude. Putting aside for the moment the Courts Christian, the Borough Courts, the Forest Courts, and all exceptional or peculiar tribunals, there existed three great rival systems of jurisdiction which may be named in the order in which they became in turn prominent in England.
(1) Local or District Courts. Justice was originally a local product, and administered in rude tribunals, which partook more or less of a popular character. Each shire had its council or assembly for hearing pleas, known as a “shire-moot” in Anglo-Saxon days, and usually as a “comitatus” after the Norman Conquest; while each of the smaller districts subdividing the shire, and forming units of administration for purposes of taxation, defence, justice, and police, had a moot or council of its own, serving as a court of law, to which the inhabitants of the various villages brought their pleas in the first instance. These smaller districts were known as hundreds in the south, and as wapentakes (a name of Danish derivation) in the north.
The theory generally received is that all freemen were originally suitors in the courts of the shire and the hundred, and that the whole body of those present, the ordinary peasant (“ceorl”) equally with the man of noble blood (“eorl”), took an active part in the proceedings, pronouncing (or, at least, concurring in) the judgments or dooms there declared; but that, as time progressed, the majority of the Anglo-Saxon ceorls sank to the half-servile position of villeins—men tied for life to the soil of the manor, and passing, like property, from father to son. These villeins, although still subjected to the burden of attendance, and to some of the other duties of their former free estate, were deprived of all those rights which had once formed the counterpart of the obligations. Another school of historians, it is true, denies that the mass of the population, even in very early times, ever enjoyed the right to any active share in the dispensation of justice. It is unnecessary here to attempt a solution of these and many other intricate problems surrounding the composition and functions of the courts of shire and hundred; or to discuss the still more vexed question how far the small assembly of the villagers of each township is worthy to be reckoned a formal court of law. It is sufficient to emphasize the importance of the existence from early times of a complete network of courts, each dispensing justice for the people of its own district.
(2) Feudal Courts. Centuries before the Norman Conquest, this system of popular or district justice found itself confronted with a rival scheme of jurisdictions—the innumerable private courts belonging to the feudal lords of the various estates into which the whole of England had been divided. This new system of private tribunals (known indifferently as feudal courts, manorial courts, seignorial courts, or heritable jurisdictions) slowly but surely, such is the orthodox view generally, although not universally accepted, gained on the older system of popular courts of shire, hundred, and wapentake.[140]
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Footnote 140:
This account of the relations of the two sets of courts would receive the support of recent writers, such as Maitland and Round, as well as of the older generation, such as Stubbs and Freeman. Mr. Frederic Seebohm may be mentioned as perhaps the most weighty upholder of the opposite view, which regards the manorial courts as of equally early or earlier origin than those of hundred and shire.
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Practically every holder of land in England came to be also the holder of a court for the inhabitants of that land. The double meaning of the word “dominus” illustrates the double position of the man who was thus both owner and lord.[141] In the struggle between two schemes of justice, the tribunals of the feudal magnates easily triumphed, but never absolutely abolished their rivals. The earlier popular courts still lived on; but the system of district justice which had once embraced the whole of England was completely honeycombed by the growth of the feudal courts. As each once-free village passed under the domination of a lord, and gradually became a manor or embryo-manor, the village-moot (with such rudimentary authority as it may originally have possessed) gave way before a new manorial court endowed with much wider powers and with more effective sanction for enforcing them. Further, as complete hundreds fell under the control of specially powerful magnates, the entire courts of these hundreds were replaced by or transformed into feudal courts; franchises thus took the place of many of the old popular moots. Still, the older system retained possession of part of the disputed ground, thanks to the protection given it in its hour of need by the Crown. A great majority of the hundreds never bowed to the exclusive domination of any one lord, and the courts of the shires were jealously guarded by the Norman Kings against the encroachment of even the most powerful of barons. It is true that they only escaped subjection to a local landowner in order to fall under the more powerful domination of the Crown. Yet the mere fact that they continued in existence acted at least as a check on the growth of the rival system of seignorial tribunals.
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Footnote 141:
Cf. “landlord.”
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Although it was the policy of the Norman Kings to prevent their barons from gaining excessive powers of jurisdiction, it was by no means their policy to oppose these jurisdictions altogether. On the contrary, the Conqueror and his sons were glad that order should be enforced and justice administered, even in a rough-and-ready manner, in those districts of England whither the Crown’s arm was not long enough to reach, and where the popular courts were likely to prove inefficient. Thus, the old system and the new existed side by side; it was to the interest of the central government to play off the one against the other.
In later days (but not till long after Magna Carta) each manorial tribunal split into three distinct courts, according to the class of pleas it was called upon to try. Later writers distinguish absolutely from each other, the Court Baron, settling civil disputes between the freeholders of the manor; the Court Customary, deciding non-criminal cases among the villeins; and the Court Leet, a petty criminal court enforcing order and punishing small offences. The powers of these courts might vary, and in many districts the jurisdiction over misdemeanours belonged not to the steward of the lord of the manor, but to the sheriff in his half-yearly Circuits or “Tourns” through the county. In the imperfectly feudalized districts the Tourn of the sheriff, as the representative of the Crown, performed the same functions as the Court Leet performed within the territories of a franchise.
(3) Royal Courts. Originally, the King’s Court had been merely one feudal court among other feudal courts—differing in degree rather than in kind from those of the great earls or barons. The King, as a feudal lord, dispensed justice among his feudal tenants (whether barons and freemen or only servile dependents), just as any baron or freeman dispensed justice among his tenants, bond or free. No one dreamed, in the time of the Norman Kings, that the Curia Regis would or could undertake the enormous labour of dispensing justice for the whole nation (or even of supervising the courts which did dispense it). Each individual must, on the contrary, look for the redress of wrongs either to the court of the people of his own district, or to the court of his lord. Royal justice for all (in the modern sense) was simply impossible. The monarchy had no machinery at command for effecting this. The task was a gigantic one, which no Anglo-Saxon King, which not even William I., could possibly have undertaken. No attempt in this direction was made by the Crown until the reign of Henry II., who was placed in a position of unprecedented power, partly by circumstances, but chiefly by his great abilities. Even he, born reformer as he was, would never have increased so greatly the labours of government, if he had not clearly seen how enormously the change would enhance both the security of his throne and the revenue of his exchequer.
In normal circumstances, then, prior to the Angevin period, the King’s Court was merely a tribunal for transacting the king’s own business, or for holding pleas between the Crown’s own immediate tenants. Even from an early date, however, the business of the monarch, from the mere fact that he was lord paramount, was necessarily wider than the business of any mesne lord. In a dim way, too, it must have been apparent from the first, that offences against the established order were offences also against the king, and that, therefore, to redress these was the king’s business competent in the King’s Courts. Further, the Sovereign’s prerogative quickly waxed strong, and enabled him to give effect to his wishes in this as in other matters. The Crown asserted a right (while admitting no corresponding duty) to investigate any pleas of special importance, whether civil or criminal. Still, up to the Norman Conquest, and thereafter under William and his sons, royal justice had made no deliberate attempt to become national justice, or to supersede feudal justice. Each kept to its recognized province. The struggle between the two began only with the reforms of Henry II.[142]
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Footnote 142:
The various stages in the gradual process, extending from the reign of Henry I. to that of Edward I., by which royal justice insidiously encroached on feudal justice, may be studied in Professor Maitland’s admirably lucid account prefaced to Sel. Pleas in Manorial Courts, pp. liii. seq. See also Pollock and Maitland, I. 181-2.
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Thus the three great systems of jurisdiction, popular justice, feudal justice, and royal justice (each depending on a different principle) succeeded each other, on the whole, in the order in which they are here named. Yet the sequence is in some ways logical rather than chronological. No absolute line can be drawn, showing where the supremacy of one principle ended and that of the next began. For centuries, all three co-existed, and struggled for the mastery. The germs of manorial jurisdiction may have been present from an early date. Shire-courts and hundred courts alike were continually in danger of falling under the domination of powerful local magnates. Yet the shire-courts were successful in maintaining till the last (thanks to royal favour) their independence of the manorial jurisdictions and their lords; while only a proportion of the hundred courts fell into bondage.
The royal courts, again, exercised an important jurisdiction from the very foundation of the monarchy; and the king in person, or by deputy, from an early date, withdrew special causes from the County Courts, and also interfered with manorial franchises. Finally, the Courts Baron were never abolished, but only silently undermined by the policy of Henry II. and his successors, until they gradually sank into decrepitude without really ceasing to exist.
With these caveats, however, the three systems may be regarded, in some measure, as following one another in the order named:—popular justice, feudal justice, royal justice.
II. Legal Procedure. The procedure adopted in litigation in Anglo-Saxon and Norman times was similar in essentials in all three classes of tribunals, and differed materially from the practice of courts of law at the present day. Some knowledge of the more glaring contrasts between ancient and modern procedure may here be profitably discussed, not only on account of the interest inherent in the subject, but also because it will conduce to an understanding of several otherwise obscure provisions of Magna Carta.
Avoiding technical language, and eliminating special procedure peculiar to any one court or country, the principal stages in a normal litigation in a modern court of law may be given briefly as follows:
(1) On the complaint of the party aggrieved—the plaintiff—a summons, or writ, is issued by an officer of the court. Proceedings are opened by the command addressed to the defendant to appear in court and answer what is alleged against him.
(2) Each party lodges written statements of his facts and pleas—that is, of the circumstances of the case as they appear to him (or such of them as he hopes to bring evidence to prove)—on which he founds his claim or his defence, and of the legal principles he intends to deduce from these circumstances. When these statements of facts and pleas have been revised and adjusted, the complete data are now before the court; each party has finally stated what he considers essential to his case.
(3) Proof is, in due course, led; that is, each party is afforded an opportunity of proving such facts as he has alleged (and as require proof through the denial of his opponent). This he may do by documents, witnesses, or otherwise. Each party has the further privilege of shaking his opponent’s evidence by cross-examination.
(4) The next important stage is the debate, the main object of which is to establish by legal arguments the pleas founded on; to deduce the legal consequences inherent in the facts which have been proved.
(5) Finally, the judge gives his decision. He has to determine, after weighing the evidence led by either party, what facts have really been established, and how far the various pleas of plaintiff and defendant respectively are implied in these facts. A considerable amount of thought and reasoning of such a kind as can be successfully performed only by a highly trained legal mind is thus necessary before the final decree or sentence can be pronounced by a judge in a modern court of law.
A trial in Anglo-Saxon and early Norman times stands in notable contrast to all this in almost every essential of its stages and procedure, and even more radically in the spirit which pervades the whole. Thus, the proceedings, from first to last, were purely oral, there being no original writ or summons, no written pleadings, and no record kept of the decision except in the memories of those present. The functions of “the judges” were entirely different, and demanded no previous professional or legal training, since they were not required either to weigh a mass of evidence or to determine the bearing of subtle legal arguments, but merely to see fairplay, and to decide, according to simple rules, well established by centuries of custom, by what test the allegations of plaintiff and defendant were respectively to stand or fall. Finally, the arrangement of the stages of the litigation was entirely different. It is with something of a shock that the modern lawyer learns that in civil and criminal causes alike “judgment” invariably preceded “trial.” Reflection will soon convince him that each of these words had in the Middle Ages a meaning different from what it bears to-day. These ancient meanings can be best understood by following the stages of the old procedure.
(1) The initial difficulty was to obtain the presence of the defendant in court, since there existed a strange reluctance either to compel his attendance or to allow judgment to pass against him by default. No initial writ was issued commanding him to appear; almost endless delays were allowed.
(2) When both parties had been, after many adjournments, actually brought face to face before the court, the statements alike of the claim and of the defence were made verbally and in set formulae, the slightest slip or stumble in the words of which involved complete failure. This is merely one illustration of the tremendously formal and technical nature of early legal procedure common to all half-developed systems of jurisprudence.
(3) Before the plaintiff could put the defendant finally on his defence, he required to show some preliminary presumption of the probability or bona fides of his case. This he usually did by producing two friends ready to substantiate his claim, known sometimes as his “suit” (Latin secta), or his “fore-witnesses.” Their evidence was not weighed against the “proof” afterwards led by the defendant; its object was merely to warrant the Court in demanding “proof” from the latter at all.[143]
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Footnote 143:
Sometimes no fore-witnesses were required; for example, to choose an obvious case, where the claim was for the restoration of stolen cattle, which had been traced by “hue and cry” to defendant’s house or byre. The presumption of guilt was here so strong as to render corroborative evidence unnecessary. The plaintiff’s unsupported oath was thus sufficient to put the defendant on his “trial.” On the other hand, in the absence alike of presumption and of witnesses swearing in support of plaintiff’s oath, the defendant escaped without any “trial” at all.
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(4) Then came the judgment—the chief or “medial” judgment, so called to distinguish it from the less important final judgment or decree which came at a later stage. This medial judgment or “doom,” to use the Anglo-Saxon word, partook in no respect of the nature of the judgment of a modern tribunal. It came before the proof or trial, not after it. It consisted indeed in decreeing whether or no, on the strength of the previous procedure, the defendant should be put to his proof at all; and if so, what “proof” should be demanded.
Now, the exact test to be appointed by the court varied somewhat, according to circumstances, but long-established custom had laid down with some exactitude a rule applicable to every case likely to occur; and, further, the possible modes of proof were limited to some four or five at the outside. In Anglo-Saxon times, these were mainly compurgation, ordeal, witnesses (whose functions were, however, widely different from those of witnesses in modern law), and charters. The Norman Conquest introduced for the new-comers, a form of proof previously unknown in England—"trial by combat"—which tended, for the upper classes at least, to supersede all earlier methods of procedure. The “proof,” of whatever kind it might be, thus appointed by the “judges” for the defendant’s performance was technically known as a “law” (Latin lex) in the sense of a “test” or “trial” or “task,” according to his success or failure in which his case should stand or fall.[144]
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Footnote 144:
See infra under chapters 38 and 39, where the meaning of lex is discussed.
It will be apparent that to pronounce a “judgment” in this sense was a simple affair, a mere formality in the ordinary case, where room for dubiety could hardly be admitted; and thus it was possible for “judgment” to be delivered by all the members of a feudal court, or even by all the suitors present at a meeting of the hundred or shire-moot.
(5) The crucial stage, this “trial” which thus came after “judgment,” consisted in one party (usually the defendant) essaying, on the day appointed, to satisfy the court as to the truth of his allegations by performing the task or “law” which had been set or “doomed” to him. When this consisted in the production of a charter, or of “transaction witnesses” (that is, the testimony of those officials appointed in each market-town to certify the conclusion of such bargains as the sale of cattle), it commends itself readily to the modern understanding and approval. More frequently, however, it took the form of “an oath with oath-helpers,” the plaintiff bringing with him eleven or twelve of his trusty friends or dependents to swear after him the words of a long and cumbrous oath, under the risk of being punished as perjurers for any slip in the formula. This was known also as compurgation. Sometimes the decision was referred to the intervention of Providence by appealing to the ordeal of the red-hot iron or the more-dreaded ordeal of water. After the Norman Conquest, the trial in all litigations between men of high rank, took the form of duellum or legally regulated combat between the parties. The defendant gained his case if he caused the plaintiff to own himself worsted by uttering the word “craven.” He gained his case equally if he only held out till nightfall (when the combat terminated) against the plaintiff’s attempts to force him to utter that fateful word.[145]
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Footnote 145:
Details may be studied in Dr. George Neilson’s Trial by Combat.
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The battle was fought out before the “judges,” who, in the case of an earl or baron, were the other earls and barons assembled as his peers in the King’s court; and, in the case of the tenant of a mesne lord, were the other freeholders of the same manor.
The ancient “trial” (the importance of which is increased by the fact that it continued long after 1215, and may be traced in several clauses of Magna Carta)[146] was thus something entirely different from the modern “trial.” It may be said without exaggeration that there was no “trial” at all in the current meaning of the word—no balancing of the testimony of one set of witnesses against another, no open proof and cross-examination, no debate on the legal principles involved. The ancient “trial” was merely a formal test, which was, except in the case of battle, entirely one-sided. The phrase “burden of proof” was inapplicable. The litigant to whom “a law” was appointed had the “privilege of proof” rather than the “burden of proof,” and he usually won his case—especially in compurgation, and even in ordeal if he had arranged matters properly with the priest who presided.[147]
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Footnote 146:
See infra, chapters 38 and 39.
Footnote 147:
Ordeal and compurgation and other forms of lex are further discussed infra, under chapters 38 and 39.
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(6) The whole was concluded by the final “judgment,” or decree, which practically took the form of a sentence passed on the vanquished. The judges could scarcely be said to decide the case, since this had already been practically decided by the success or failure of the party on whom the proof had been laid. Those who gave sentence were “judges” merely in the sense of umpires who saw fairplay to both players, according to the acknowledged rules of the desperate game.[148]
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Footnote 148:
Cf. Thayer, Evidence, p. 8. “The conception of the trial was that of a proceeding between the parties, carried on publicly, under forms which the community oversaw.”
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In one sense, the final (as opposed to the medial) “judgment” was determined by the parties themselves, or by one of them; in another and higher sense the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent man. Those who delivered the final doom, had a purely formal task to perform, and had little in common with the “judges” of a modern court.[149]
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Footnote 149:
These stages of procedure are all fully illustrated by the actual words of recorded cases of the thirteenth century. Two of these, both from the reign of John, one decided by battle, the other by ordeal, may here be cited. (1) "Hereward, the son of William, appeals Walter, the son of Hugh, of assaulting him, in the King’s peace, and wounding him in the arm with an iron fork, and giving him another wound on the head; and this he offers to prove on his body as the Court shall appoint. And Walter defends all of it by his body. And it is testified by the coroners and by the whole county that the same Hereward showed his wounds at the proper time, and has made sufficient suit. Therefore it is decreed that there should be “battle.”... Let them come armed, a fortnight from St. Swithin’s day, at Leicester." Sel. Pleas of Crown (Selden Society), p. 18. (2) “Walter Trenchebof was said to have handed to Inger of Faldingthorpe the knife with which he killed Guy Foliot, and is suspected of it. Let him purge himself by water that he did not consent to it. He has failed and is hanged.” Ibid., p. 75.
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The essentials of this procedure were the same in the Norman as in the Anglo-Saxon period, and that in all three classes of tribunals—popular courts, manorial courts, and royal courts.
Two innovations the Norman Kings did make; they introduced trial by combat (already sufficiently discussed), and likewise the continental method of obtaining information on sworn testimony. Among the prerogatives of the Norman Dukes one of the most valuable was the right to compel the sworn evidence of reliable men of any district—men specially picked for the purpose, and put on oath before answering the questions asked of them, thus endangering their eternal welfare in the event of falsehood, and laying themselves open to temporal penalties for perjury.
This procedure was known as inquisitio (or the seeking of information) when regarded from the point of view of the government making the inquiry, and as recognitio (or the giving of information) from the point of view of those supplying it. This extremely simple and practical device was flexible and capable of extension to endless new uses in the deft hands of the Norman Kings in England. William the Conqueror employed it in collecting the laws and customs of the conquered people, and, later on, in compiling Domesday Book; while his successors made it the instrument of various experiments in the science of taxation. It has a double claim to the interest of the constitutional historian, because it was one of the influences which helped to mould our Parliamentary institutions; and because several of the new uses to which it came to be put had a close connection with the origin of trial by jury. The recognitors, indeed, were simply local jurors in a rude or elementary form.[150]
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Footnote 150:
The relation of “recognition” to trial by jury is fully discussed, infra, Part III., section 7.
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III. Reforms of Henry II. in Law Courts and Legal Procedure. It was reserved for Henry of Anjou to inaugurate an entirely new era in the relations of the three classes of courts. He was the first king deliberately to plan the overthrow of the feudal jurisdictions by insidiously undermining them, if not yet by open attack. He was the first king to reduce the old district courts so thoroughly under the control of royal officials as to turn them practically into royal courts. He was the first king also to throw open the doors of his own courts of law to all-comers, to all freemen, that is to say, for the despised villein had for centuries still to seek redress in the court of that very lord of the manor who was too often his oppressor.
In brief, then, Henry’s policy was twofold: to convert the County Courts practically into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s own Curia; and to reduce all manorial or private courts to insignificance by diverting pleas to his own Curia, and leaving the rival tribunals to die gradually from inanition. Both branches of this policy met ultimately with complete success, although the event hung in the balance until long after his death. The barons, though partially deceived by the gradual and insidious nature of Henry’s reforms, did what they could to thwart him; but the current of events was against them and with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces plainly written in several chapters of Magna Carta.[151]
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Footnote 151:
E.g. 34 and 39.
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These contain what seem, at first sight, to be merely trivial alterations of technical points of court procedure; but inextricably bound up with them are principles of wide political and constitutional importance. Henry’s policy was to disguise radical reforms until they looked like small changes of procedure; it follows that the framers of Magna Carta, while appearing merely to seek the reversal of these trivial points, were really seeking to return to the totally different conditions which had prevailed prior to the reforms of Henry.
A short account of the main outlines of that monarch’s new system of procedure forms a necessary preliminary to a complete comprehension of these important chapters of Magna Carta. Such an account falls naturally into two divisions.
(1) Criminal Justice. (a) By his Assizes of Clarendon and Northampton Henry strictly reserved all important crimes for the exclusive consideration of his own judges either on circuit or at his court; and he demanded entry for these judges into franchises, however powerful, for that purpose. In this part of his policy, the King was completely successful; heinous crimes were, in the beginning of the thirteenth century, admitted on all hands to be “pleas of the Crown” (that is, cases exclusively reserved for the royal jurisdiction); and Magna Carta made no attempt to reverse this part of the Crown’s policy. The change was accepted as inevitable. All that was attempted in 1215 was to obtain a promise that these functions, now surrendered to the Crown forever, should be discharged by the Crown’s officials in a proper manner.[152]
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Footnote 152:
See infra, under chapters 24 and 45.
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(b) Henry’s usual good sense, in this matter stimulated by some notable miscarriages of justice, led him to question the equity of the procedure usually adopted in criminal pleas, namely, by “appeal” or formal accusation by the injured party, or his nearest surviving relative. He substituted, whenever possible, communal accusation for individual accusation; that is, the duty of proclaiming (or indicting) the suspected criminals of each district before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours specially selected for that purpose—the predecessors of the Grand Jury of later days. This new procedure, it is true, supplemented rather than superseded the older procedure; yet it marked a distinct advance. Appeals were discouraged and exact rules laid down restricting the right of accusation to certain cases and individuals.[153]
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Footnote 153:
See infra, under chapter 54.
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(c) A necessary complement of the discouragement of appeals was the discouragement of “trial by combat” also, since that formed the natural sequel. An ingenious device was invented and gradually extended to an increasing number of cases; an accused individual might apply for a writ known as de odio et atia, and thus avoid the duellum altogether by having his guilt or innocence determined by what was practically a jury of neighbours.[154]
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Footnote 154:
See infra, under chapter 36.
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(2) Civil Justice. Henry’s innovations under this head were equally important.
(a) An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ process.” Once it was issued, all proceedings in other courts must stop. One special form of writ (known as praecipe), in particular, became a royal instrument for removing before the King’s own Curia cases pending in the manorial courts of mesne lords. To do this was to enrich the King at the expense of some baron or other freeman, by bringing to the Exchequer fees which otherwise would be paid to the owner of the private court. This was plainly "to cause a freeman to lose his court"—an abuse specially struck at by chapter 34 of the Great Charter.
(b) The mass of new business attracted to the King’s Courts made it necessary to increase, the staff of judges and to distribute the work among them. A natural division was that ordinary pleas (or common pleas) should be tried before one set of judges, and royal pleas (or pleas of the Crown) before another. This distinction is recognized in many separate chapters.[155] Thus two groups of judges were formed, each of which was at first rather a committee of the larger Curia as a whole than an independent tribunal; but, in later years, the two rapidly developed into entirely separate courts—the Court of Common Pleas (at first known as the Bench, that is, the ordinary Bench), and the Court of King’s Bench (that is, the royal Bench, known also at first as the court Coram Rege, since it was always supposed to be held in the King’s presence).
Footnote 155:
See infra, under chapters 17 and 24.
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(c) Special procedure for determining pleas of disputed titles to land or rights of possession was also invented by Henry to take the place of the ancient method of trial by battle. These Assizes, as they were called, are fully discussed elsewhere.[156] The Grand Assize was looked on with suspicion by the barons as a procedure competent only before the royal courts, and therefore closely bound up with the King’s other devices for substituting his own jurisdiction for that of the private courts. The petty assizes, on the contrary, met with a ready acceptance, and the barons in 1215, far from objecting to their continuance, demanded that they should be held in regular sessions four times a year in each county of England.
Footnote 156:
See infra, under chapter 18.
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These were the chief innovations which enabled Henry, while instituting many reforms urgently required and gladly welcomed by the mass of his subjects, at the same time to effect a revolution in the relations of royal justice to feudal justice. As time went on, new royal writs and remedies were being continually devised to meet new types of cases; and litigants flocked more and more readily to the King’s Courts, leaving the seignorial courts empty of business and of fees. Nor was this the only grievance of the barons. When one of their own number was amerced or accused of any offence involving loss of liberty or lands, he might be compelled by the Crown, under Henry and his sons, to submit to have the amercement assessed or the criminal proceedings conducted by one of the new Benches (by a tribunal composed of some four or five of the King’s officials), in place of the time-honoured judgment of his peers assembled in the Commune Concilium (the predecessor of the modern Parliament).
Can we wonder that the barons objected to be amerced and judged by their inferiors?[157] Can we wonder that they resented the complete though gradual supersession of their own profitable jurisdictions by the royal courts?[158] or that they looked with suspicion on every new legal development of the royal justice? Can we wonder that, when they seemed to have King John for the moment in their power, they demanded redress of this group of grievances, as well as of those connected with arbitrary increase of feudal burdens?
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Footnote 157:
See infra, under chapters 21 and 39.
Footnote 158:
See infra, under chapter 34.
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The cause for wonder rather is that their demands in this respect were not more sweeping and more drastic. It was one thing for their fathers to have endured the encroachments of so strong a King as Henry II.—far too wise a statesman to show clearly whither his innovations were ultimately tending, and (some lapses notwithstanding) a just ruler on the whole, using his increased prerogatives with moderation and for national ends. It was quite another thing to endure the same encroachments (or worse) from an unpopular King like John, discredited and in their power, who had neither disguised his arrogance nor made good use of his prerogatives. Royal justice, as dispensed by John, was in every way inferior to royal justice as dispensed under his father’s vigilant eye. Yet the exasperated barons, in the hour of their triumph, actually accepted, and accepted cordially, one half of royal justice; while they sought to abolish only the other half. The chapters bearing on the question of jurisdiction may thus be arranged in two groups, some reactionary, and some favourable to Henry’s reforms. On the one hand, no lord of a manor shall be robbed of his court by the King evoking before the royal courts pleas between two freeholders of the lord’s manor;[159] no freeman shall be judged or condemned by the King’s officials, but only before the full body of his peers (that is, of his fellow earls and barons, if he be an earl or baron, and of his fellow tenants of the manor, if he holds of a mesne lord);[160] earls and barons must be amerced only by their equals.[161] On the other hand, in prescribing remedies for various abuses connected with numerous branches of legal procedure recently introduced into the royal courts, the barons accepted by implication this new procedure itself and the royal encroachments implied therein. For example, the Crown’s right to hold “Common Pleas” was impliedly admitted, when the barons asked and obtained a promise that these should be tried in some certain place (that is, at Westminster).[162] Yet these very pleas, ordinary ones in which the Crown had no special interest, as opposed to Pleas of the Crown in which it had, must have included many cases which, prior to Henry II.’s reforms, would not have been tried in a royal court. Again, in regulating the various Petty Assizes, chapters 18 and 19 admit the Crown’s right to hold them. Such Assizes must be taken henceforth four times a year. Here, as in chapter 40, the ground of complaint is not that there is too much of royal justice, but rather that there is too little of it; it is henceforth to be neither delayed nor denied. Further, the encroachments made by Henry II. in 1166 on the rights of private franchises in the matter of criminal jurisdiction are homologated by acquiescence in the King’s definition of “Pleas of the Crown” implied in chapter 24.
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Footnote 159:
c. 34
Footnote 160:
c. 39.
Footnote 161:
c. 21.
Footnote 162:
c. 17.
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These, then, are the two clearly contrasted groups into which the innovations made by Henry and his sons, within the province of justice, naturally fell as viewed by John’s opponents in 1215: some of them had now come to be warmly welcomed, and these, it was insisted, must be continued by the Crown; while some of them still excited as bitter opposition as ever, and these, it was insisted, must be utterly swept away.
III. MAGNA CARTA: ITS FORM AND CONTENTS
I. Its Prototypes: Earlier Charters.
However wide and scattered were the sources from which the substance of the Great Charter was derived, its descent, on its formal side, can readily be traced, through an unbroken line of antecedents, back to a very early date. Magna Carta is directly descended from the Charter of Liberties of Henry I., and that, again, was a written supplement to the vows taken by that monarch at his coronation, couched in similar terms to those invariably sworn at their anointing by the Anglo-Saxon kings of England, from Edgar to Edward Confessor.
The ties which thus connect King John’s promises of good government with the promises to the same effect made at their coronation by the princes of the old dynasty of Wessex are by no means of an accidental nature. Not only is identity of substance, in part at least, maintained throughout; but the promises were the outcome of an essential feature of the old English constitution—a feature so deeply rooted that it survived the shock of the Norman Conquest. This feature, so fundamental and so productive of great issues, was the elective or quasi-elective nature of the monarchy. During the Anglo-Saxon era, two rival principles, the elective and the hereditary, struggled for the mastery in determining the succession to the Crown. In an unsettled state of society, nations cannot allow the sceptre to pass into the hands of an infant or a weakling. When a king died, leaving a son of tender age, and survived by a brother of acknowledged ability and mature powers, it was only natural that the latter should, in the interests of peace and order, be preferred to the throne. In such cases, the strict principle of primogeniture was not followed. The magnates of the kingdom, the so-called Witan, claimed the right to choose a fitting successor; yet in so doing they usually paid as great regard to the claims of kindred as circumstances permitted. The exact relations between the elective and the hereditary principles were never laid down with absolute precision. Indeed, the want of definition in all constitutional questions was characteristic of the age—a truth not sufficiently apprehended by writers of the school of Kemble and Freeman. The practice usually followed by the Witenagemot was to select as the new ruler some kinsman of the late king standing in close relationship to him, and at the same time competent for the high post. The king-elect thus appointed had, before his title was complete, to undergo a further ceremony: he required to be solemnly anointed by the representative of the spiritual power, and this gave to the Church an important share in deciding who should be king. At an early date—exactly how early is not known, but certainly not later than the days of Edgar—it became the invariable practice for the officiating archbishop to exact an oath of good government from the king-elect before his final coronation. The precise terms of this oath became stereotyped; and, as administered by Dunstan to King Ethelred, they are still extant.[163]
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Footnote 163:
The words have come down to us in two versions: one Anglo-Saxon and the other Latin. The former is preserved in Memorials of St. Dunstan (Rolls Series), p. 355, where it is translated by Dr. Stubbs:—
"In the name of the Holy Trinity I promise three things to the Christian people and my subjects: first, that God’s church and all Christian people of my dominions hold true peace; the second is that I forbid robbery and all unrighteous things to all orders; and third, that I promise and enjoin in all dooms, justice and mercy, that the gracious and merciful God of his everlasting mercy may forgive us all, who liveth and reigneth." The name of the King is not mentioned, and may have been either Edward or Ethelred, but is usually identified with the latter. See Kemble, Saxons in England, II. 35.
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It may be briefly analyzed into three promises—peace to God’s Church and people; repression of violence in men of every rank; justice and mercy in all judgments. Such was the famous tripartite oath taken, after celebration of mass, over the most sacred relics laid on the high altar, in presence of Church and people, by the kings of the old Anglo-Saxon race. When William I., anxious in all things to fortify the legality of his title, took the oath in this solemn form, he created a precedent of tremendous importance, although he may have regarded it at the moment as an empty formality.[164]
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Footnote 164:
Two independent authorities, both writing from the English point of view, Florence of Worcester, and the author of the Worcester version of the Chronicle, agree that the Conqueror took the oath; the Norman authorities neither contradict nor confirm this. “William of Poitiers and Guy are silent about the oath.” Freeman, Norman Conquest, III. 561, note.
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This step was doubly important: as a link with the past, as a precedent for the future. A bridge was thus thrown across the social and political gulf of the Norman Conquest, preserving the continuity of the monarchy and of the basis on which it was founded. The elective character of the kingship, the need for coronation by the Church, and (the natural supplement of both) this tripartite oath containing promises of good government, valuable though vague, were all preserved.
This was of vital moment, because limits were thereby placed, in theory at least, on prerogatives that threatened in practice to become absolute. Undoubtedly the power of the Norman kings was very great, and might almost be described as irresponsible despotism, tempered by the fear of rebellion. Three forces indeed acted as curbs: the practical necessity for consulting the Curia Regis (or assembly of crown vassals) before any vital step was taken; the restraining influence of the national Church, backed by the spiritual powers of Rome; and the growth, in a vague form, it is true, of a body of public opinion confined as yet to the upper classes.
All these elements counted for something, but failed to restrain sufficiently even an average king; while they were powerless against a strong ruler like William I. The only moment at which the Crown might be taken at a clear disadvantage was during the interregnum which followed the death of the last occupant of the throne. Two or more rival heirs might aspire to the high position, and would be eager to make promises in return for support. Thus, William Rufus, at his father’s death, anxious to prevent his elder brother, Duke Robert, from making good his claim to the English throne, succeeded chiefly through the friendship of Lanfranc. To gain this, he was compelled to make promises of good government, and to follow his father’s precedent by taking the oath in the ancient form, in which it had been administered by Dunstan to Ethelred. In the same reign began the practice of supplementing verbal promises by sealed charters, which in some respects must be regarded simply as the old coronation oath confirmed, expanded, and reduced to writing. No such charter was indeed issued either by Rufus or by his father when they were crowned; but the younger William, at a critical period later in his reign, seems to have granted a short Charter of Liberties, the exact contents of which have not come down to us. At the death of Rufus, his younger brother, Henry I., found himself hard pressed in the competition for the English Crown by Duke Robert (the Conqueror’s eldest son). By a treaty made at Caen in 1091, Duke Robert and Rufus had agreed that each should constitute the other his heir. Thus Henry was, in a sense, a usurper, and this circumstance made it necessary for him to bid high for influential support.[165] It is to this doubtful title, coupled with the knowledge of widespread disaffection, that Englishmen owe the origin of the first Charter of Liberties that has come down to us.[166]
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Footnote 165:
Stubbs, Const. Hist., I. 328-9, and authorities there cited.
Footnote 166:
See Appendix.
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This charter was the price paid by Henry for the support he required in his candidature for the Crown. In granting it he admitted, in a sense, the contractual basis of his kingship. In discussing its tone and general tenor there is ample room for differences of opinion. Dr. Stubbs[167] maintains that Henry thereby “definitely commits himself to the duties of a national King.” Writers of almost equal authority somewhat modify this view, holding that, although circumstances forced Henry to pose as the leader of the entire nation, yet nothing of this could be traced in the charter, the basis of which seems to have been feudal rather than national.[168]
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Footnote 167:
Const. Hist., I. 331.
Footnote 168:
See Prothero, Simon de Montfort, 16: “That charter had been mainly of a feudal character; it contained no provision for, and scarcely even hinted at, a constitutional form of government.”
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This view is strengthened by analysis of the actual provisions of the charter. While important and definite concessions were made to the Church and to the Crown-tenants, those to the people at large were few and vague—so vague as to be of little practical use. The Church, it was declared, “should be free,” a wide phrase to which these particulars were added, namely, that the wardship of sees during vacancies should not be sold or hired out, and that no sums should be demanded in name of reliefs from the lands or tenants of a see when a death occurred. The “baronage” (to use a convenient anachronism for “the Crown-tenants considered collectively”) received redress of their worst grievances in regard to reliefs and other feudal obligations. In this respect Henry’s charter anticipated and even went beyond some of the reforms of 1215.[169]
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Footnote 169:
Details are reserved for consideration under the feudal clauses of the Great Charter.
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It is true that the mass of the people may have indirectly benefited by many of these provisions; but when we look for measures of a directly popular character, only three can be found, namely, promises to enforce peace in the land, to take away evil customs, and to observe the laws of Edward Confessor as amended by William I. This is too slender a basis on which to found a claim to take rank as a “national king,” even if Henry had any intention of keeping his promises. It is now notorious that not a single promise remained unbroken.[170]
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Footnote 170:
See Round, Feudal England, 227, and Pollock and Maitland, I. 306.
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From another point of view the charter is a criticism on the administration of Rufus (and to some extent also of the Conqueror), combined with a promise of amendment. Henry thus posed as a reformer, and forswore the evil customs of his father and brother. The great value of the charter, however, lies in this, that it is the first formal acceptance (published under seal and in proper legal shape) of the old law of Anglo-Saxon England by a ruler of the new alien dynasty; yet in this Henry was only completing what his father had begun. These considerations help to account for the almost exaggerated importance attached to Henry’s charter during the reign of John.
If all efforts made to defeat Henry’s succession failed, the succession of his daughter Matilda was disputed triumphantly. Stephen, taking advantage of his cousin’s absence and of her personal unpopularity, made a rapid descent on England with the spasmodic energy which characterized him, and successfully snatched the Crown. Trained in English ways on English soil, he was quickly on the spot and very popular. These features in his favour, however, did not render his position entirely secure as against the daughter and heiress of so strong a King as Henry I., to whom, indeed, Stephen himself, with all the magnates of England, had already thrice sworn allegiance. He was only one of two competitors for the Crown, with chances nearly equal. From the moment of the old King’s death, “the Norman barons treated the succession as an open question.” In these words of Bishop Stubbs,[171] Mr. J. H. Round finds[172] the keynote of the reign. Stephen was never secure on his throne, and had to make indiscriminate promises first to obtain, and afterwards to retain, his position. He was thus prepared to bid much higher for support than Henry had felt compelled to do. Adherents had to be gained painfully, one by one, by the grant of special favours to every individual whose support was worth the buying.
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Footnote 171:
Stubbs, Const. Hist., I. 345.
Footnote 172:
Round, Geoffrey de Mandeville, p. 1.
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Bargains were struck with the Londoners, with Stephen’s brother Henry of Blois (Bishop of Winchester), with the Keepers of the King’s Treasure, with the Archbishop of Canterbury, and with the Justiciar (Bishop Roger of Salisbury). The support of the two last mentioned carried with it the support of the Church and of the administrative staff of the late king, but was only gained by wide concessions. Thus Stephen, like William of Orange, five centuries later, agreed to become “king upon conditions.” A Charter of Liberties and a solemn oath securing "the liberty of the Church"—a vague phrase, it is true, but none the less dangerous on that account—together formed the price of Stephen’s consecration; and this price was not perhaps too high when we remember that "election was a matter of opinion, coronation a matter of fact"—a solemn sacrament that could hardly be undone.[173]
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Footnote 173:
Round, Geoffrey de Mandeville, p. 6. Mr. Round, ibid., p. 438, explains that the reason of the omission from this earlier charter of Stephen (unlike the more lengthy and important one which followed four months later) of all mention of the Church was that Stephen, at the time of granting, supplemented it by the verbal promise recorded by William of Malmesbury, de libertate reddenda ecclesiae et conservanda.
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Even this important ceremony, however, left Stephen’s throne a tottering one; he was compelled to buy the adherence of powerful magnates by lavish concessions of land and franchises; and various charters in favour of individual nobles still exist as witnesses to such bribes. The process by which he built up a title to the Crown seems to have culminated in the Easter of 1136, when he secured the support of Matilda’s half-brother Robert, Earl of Gloucester, whose lead was quickly followed by other influential nobles. All of these new adherents, however, performed homage to the King under an important reservation, namely, that their future loyalty would be strictly conditional on the treatment extended to them by Stephen. That unfortunate monarch accordingly, by tolerating such conditional allegiance, was compelled to acknowledge the inherent weakness of his position even in the moment of his nominal triumph.[174]
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Footnote 174:
The whole incident is so remarkable that it seems well to cite the exact words of William of Malmesbury, II. 541: “Itaque homagium regi fecit sub conditione quadam, scilicet quamdiu ille dignitatem suam integre custodiret et sibi pacta servaret.”
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These important transactions took place apparently at Oxford,[175] and at the same time the King issued his second or Oxford Charter, which embodied and expanded the contents of earlier charters and oaths. This Oxford Charter, the date of which has been proved to be early in April,[176] is noteworthy alike for the circumstances in which it was granted, placing as it did the copestone on the gradual process by which Stephen was “elected” king, and also for its contents, which combined the earlier oath to the Church and the vague, unsatisfactory earlier charter to the people, with the new conditions extorted by Earl Robert and his followers.
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Footnote 175:
Round, Geoffrey, 22.
Footnote 176:
Round, Geoffrey, 23–4.
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The opening words, in which Stephen describes himself as “King of the English,” may be read as a laboured attempt to set forth a valid title to the throne. All reference to predecessors is carefully avoided, and the usurper declares himself to be king "by appointment of the clergy and people, by consecration of the archbishop and papal legate, and by the Pope’s confirmation."[177]
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Footnote 177:
Stephen was not justified in this last assumption. See Round, Geoffrey, 9.
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Perhaps its chief provisions are those in favour of the Church, supplementing a vague declaration that the Church should be “free” by specific promises that the bishops should have exclusive jurisdiction and power over churchmen and their goods, along with the sole right to superintend their distribution after death. Here was a clear confirmation of the right of the Courts Christian to a monopoly of all pleas affecting the clergy or their property. It is the first distinct enunciation in England of the principle afterwards known as "benefit of clergy"—and that, too, in a form more sweeping than was ever afterwards repeated. Stephen also explicitly renounced all rights inherent in the Crown to wardship over Church lands during vacancies—a surrender never dreamed of by either Henry I. or Henry II.
Grants to the people at large followed. A general clause promising peace and justice was again supplemented by specific concessions of more practical value, namely, a promise to extirpate all exactions, unjust practices, and “miskennings” by sheriffs and others, and to observe good, ancient, and just customs in respect of murder-fines, pleas, and other causes.
Strangely enough, there is only one provision specially benefiting feudal magnates, the King’s disclaimer of all tracts of land afforested since the time of the two Williams. The omission of further feudal concessions must not be attributed either to Stephen’s strength, or to any spirit of moderation or self-sacrifice in the magnates. Each baron of sufficient importance had already extorted a special charter in his own favour, more emphatic and binding from its personal nature, and accordingly more valued than a mere general provision in favour of all and sundry. Such private grants generally included a confirmation of the grantee’s right to maintain his own feudal stronghold, thus placing him in a position of practical independence.
It is instructive to compare these wide promises of Stephen with the meagre words of the charter granted by Henry of Anjou at or soon after his Coronation.[178] Henry II. carefully omits all mention of Stephen and his charters, not, as is sometimes supposed, because he did not wish to acknowledge the existence of a usurper, but because of that usurper’s lavish grants to the Church. Henry had no intention either to confirm “benefit of clergy” in so sweeping a form as Stephen had done, or to renounce wardship over the lands of vacant sees.
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Footnote 178:
The charter of Henry II. is given in Bémont, Chartes, 13, and in Select Charters, 135. It seems worth while to mention in this connection a notable mistake of a writer whose usual accuracy is envied by his brother historians. Mr. J. H. Round (Engl. Hist. Rev., VIII. 292) declares that “the royal power had increased so steadily that Henry II. and his sons had been able to abstain from issuing charters, and had merely taken the old tripartite oath.”
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To the Church, as to the barons, Henry Plantagenet confirms only what his grandfather had already conceded. Even when compared with the standard set by the charter of Henry I., that of the younger Henry is shorter and less explicit, and therefore weaker and more liable to be set aside—features which justified Stephen Langton in his preference for the older document. If Henry II. granted a short and grudging charter, neither of his sons, at their respective coronations, granted any charter at all. Reasons for the omission readily suggest themselves; the Crown had grown strong enough to dispense with this unwelcome formality, partly because of the absence of rival competitors for the throne, and partly because of the perfection to which the machinery of government had been brought. The utmost which the Church could extract from Richard and John as the price of their consecration was the renewal of the three vague promises contained in the words of the oath, now taken as a pure formality. The omission to grant charters was merely one symptom of the diseases of the body politic consequent on the overweening power of the Crown, and proves how urgent was the need of some such re-assertion of the nation’s liberties as came in 1215.
John, at least, was not to be allowed to shake himself free from the obligations of his oath, or from the promise to confirm the ancient laws and customs of the land therein contained. Stephen Langton, before absolving him from the effects of his quarrel with Rome, compelled him to renew the terms of the coronation oath.[179]
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Footnote 179:
See supra, p. 32, and Round, Eng. Hist. Rev., VIII. 292.
Nor was this all; from a meeting held at St. Albans on 4th August, 1213, writs were issued in the King’s name to the various sheriffs, bidding them observe the laws of Henry I. and abstain from unjust exactions.[180] Three weeks later (on 25th August), the production of a stray copy of Henry’s charter is said, by Roger of Wendover, to have made a startling impression on all present,[181] and the same charter was a second time produced at Bury St. Edmunds, on 4th November, 1214, and was accepted by the malcontents as a model which, modified and enlarged, might serve as a basis for the redress of the grievances of the reign.[182]
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Footnote 180:
Supra, p. 34.
Footnote 181:
Supra, p. 35.
Footnote 182:
Supra, p. 38.
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It is thus both excusable and necessary to place much stress on this sequence of coronation oaths and charters, as contributing both to the form and to the substance of the Magna Carta of John. Yet the tendency to take too narrow a view of the antecedents of the Great Charter must be carefully guarded against. Many ingredients went to the making of it. Numerous reforms of Henry II., whether embodied or not in one or more of the ordinances or assizes that have come down to us, must be reckoned among their number, equally with those constitutional documents which happen to be couched in the form peculiar to charters granted under the king’s great seal. It is also necessary to remember the special grants made by successive kings of England to the Church, to London and other cities, and to individual prelates and barons. In a sense, the whole previous history of England went to the making of Magna Carta. The sequence of coronation oaths and charters is only one line of descent; the Great Charter of John can trace its origin through many other lines of distinguished ancestors.
II. Magna Carta: its Form and Juridical Nature.
Much ingenuity has been expended, without adequate return, in the effort to discover which particular category of modern jurisprudence most exactly describes the Great Charter of John. Is it an enacted law, or a treaty; the royal answer to a petition; or a declaration of rights? Is it a simple pact, bargain, or agreement between contracting parties? Or is it a combination of two or more of these? Something has been said in favour of almost every possible view, perhaps more to the bewilderment than to the enlightenment of students of history uninterested in legal subtleties.
The claim of Magna Carta to rank as a formal act of legislation has been supported on the ground that it was promulgated in what was practically a commune concilium. King John, it is maintained, met in a national assembly all the estates of his realm who were then endowed with political rights, and these concurred with him in the granting of Magna Carta. The consent of all who claimed a share in the making or repealing of laws—archbishops, bishops, abbots, earls, and crown-tenants, great and small—entitles the Charter to rank as a regular statute.
Against this view, however, technical informalities may be urged. Both the composition of the Council and the procedure adopted there, were irregular. No formal writs of summons had been issued, and, therefore, the meeting was never properly constituted; many individuals with the right and duty of attendance had no opportunity to be present. Further, the whole proceedings were tumultuary; the barons assembled in military array and compelled the consent of John by turbulence and show of force. On these grounds, modern jurisprudence, if appealed to, would reject the claim of the Charter to be enrolled as an ordinary statute.
On the other hand, it may be argued that Magna Carta, while something less than a law, is also something more. A law made by the king in one national assembly might be repealed by the king in another; whereas the Great Charter was intended by the barons to be unchangeable. It was granted to them and their heirs for ever; and, in return, a price had been paid, namely, the renewal of their allegiance—a fundamental condition of John’s continued possession of the throne.[183]
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Footnote 183:
The quid pro quo received by the King was merely the promise of conditionel homage, dependent (as we learn from chapter 63) on his observance of the conditions of the Charter. This arrangement may be compared with the agreement made between Stephen and the Earl of Gloucester in 1136 (see supra, p. 120), and it bears some points of analogy with the procedure adopted by the framers of the Bill of Rights, who inserted a list of conditions in the Act of Parliament which formed the title of William and Mary to the throne of England.
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Magna Carta has also been frequently described as a treaty. Such is the verdict of Dr. Stubbs.[184] “The Great Charter, although drawn up in the form of a royal grant, was really a treaty between the King and his subjects.... It is the collective people who really form the other high contracting party in the great capitulation.”[185] This view receives some support from certain words contained in chapter 63 of the Charter itself: “Juratum est autem tam ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observabuntur.”
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Footnote 184:
Const. Hist., I. 569.
Footnote 185:
Mr. Prothero is of the same opinion (Simon de Montfort, 15). It was “in reality a treaty of peace, an engagement made after a defeat between the vanquished and his victors.”
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It is not sufficient to urge against this theory, as is sometimes done, that the concord was entered into in bad faith by one or by both of the contracting parties. It is quite true that the compromise it contained was accepted merely as a cloak under which to prepare for war; yet jurisprudence, in treating of formal documents granted under seal, pays no attention to sincerity or insincerity, but looks merely to the formal expression of consent.
Interesting questions might also be raised as to how far it is correct to extend to treaties the legal rule which declares void or voidable all compacts and agreements induced by force or fear. In a sense, every treaty which ends a great war would fall under such condemnation, since the vanquished nation always bows to force majeure. Such claims as the Great Charter may have to rank as a treaty are not, therefore, necessarily weakened by John’s subsequent contention that when granting it he was not a free agent.
There is, however, a more radical objection. A treaty is a public act between two contracting powers, who must, to meet the requirements of modern jurisprudence, be independent States or their accredited agents; while John and his opponents were merely fragments of one nation or State, torn asunder by mutual fears and jealousies.
Some authorities discard alike the theory of legislation and the treaty theory to make way for a third, namely, that Magna Carta is merely a contract, pact, or private agreement. M. Emile Boutmy is of this opinion. "Le caractère de cet acte est aisé à définir.[186] Ce n’est pas précisément un traité, puisqu’il n’y a pas ici deux souverainetés légitimes ni deux nations en présence; ce n’est pas non plus une loi; elle serait entachée d’irrégularité et de violence; c’est un compromis ou un pacte."[187]
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Footnote 186:
Here we differ from him.
Footnote 187:
Études de droit constitutionnel, 41.
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Thus considered, the proudest act of the national drama would take its place in the comparatively humble legal category which includes such transactions as the hire of a waggon or the sale of a load of corn. There are, however, fatal objections to this theory also. It is difficult to see how the plea of “force,” if sufficient (as M. Boutmy urges) to render null the enactment of a public law, would not be even more effective in reducing a private agreement. If Magna Carta has no other basis than the declared consent of the contracting parties, it seems safer to describe it as a public treaty than as a private or civil pact devoid of political significance.
Other theories also are possible; as, for example, that the Great Charter is of the nature of a Declaration of Rights, such as have played so prominent a part in the political history of France and of the United States; while a recent American writer on English constitutional development seems almost to regard it as a code, creating a formal constitution for England—in a rude and embryonic form, it is true. “If a constitution has for its chief object the prevention of encroachments and the harmonizing of governmental institutions, Magna Carta answers to that description, at least in part.”[188]
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Footnote 188:
Prof. Jesse Macy, English Constitution, 162.
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It would be easy to find examples of attempts to compromise between these competing theories, by combining two or more of them. Thus, a high English authority declares that “the Great Charter is partly a declaration of rights, partly a treaty between Crown and people.”[189]
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Footnote 189:
Sir William R. Anson, Law of the Constitution, I. 14.
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The essential nature of what took place at Runnymede, in June, 1215, is plain, when stripped of legal subtleties. A bargain was struck between the King and the rebel magnates, the purport of which was that the latter should renew their oaths of fealty and homage, and give security that they would keep these oaths, while John, in return, granted “to the freemen of England and their heirs for ever” the liberties enumerated in sixty-three chapters. No one thought of asking whether the transaction thus concluded was a “treaty” or a private “contract.”
The terms of this bargain, however, had to be drawn up in proper legal form, so as to bear record for all time to the exact nature of the provisions therein contained, and also to the authenticity of John’s consent thereto. It was, therefore, reduced to writing, and the resulting document was naturally couched in the form invariably used for all irrevocable grants intended to descend from father to son, namely, a feudal charter, authenticated by the addition of a seal—just as in the case of a grant of land, and with many of the clauses appropriate to such a grant.[190]
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Footnote 190:
In strict legal theory the complete investiture of the grantee required that “charter” should be followed by “infeftment” or delivery (real or constructive) of the subject of the grant. In the case of such intangible things as political rights and liberties, the actual parchment on which the Charter was written would be the most natural symbol to deliver to the grantees.
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John grants to the freemen of England and their heirs certain specified rights and liberties, as though these were merely so many hides or acres of land. Concessimus etiam omnibus liberis hominibus regni nostri, pro nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus nostris.[191] The legal effect of such a grant is hard to determine; and insuperable difficulties beset any attempt to expound its legal consequences in terms of modern law.[192] In truth, the form and substance of Magna Carta are badly mated. Its substance consists of a number of legal enactments and political and civil rights; its form is borrowed from the feudal lawyer’s book of styles for conferring a title to landed estate.[193]
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Footnote 191:
See chapter 1. The grant which thus purports to be perpetually binding on John’s heirs, was in practice treated as purely personal to John, and requiring confirmation by his son. Yet this also was in strict accordance with feudal theory, which required the heir to complete his title to his deceased father’s real estate by obtaining a Charter of Confirmation from his lord, for which he had to pay “relief.” The liberties of the freemen were only a new species of real estate.
Footnote 192:
Prof. Maitland, Township and Borough, p. 76, explains some of the absurdities involved: "Have you ever pondered the form, the scheme, the main idea of Magna Charta? If so, your reverence for that sacred text will hardly have prevented you from using in the privacy of your own minds some such words as ‘inept’ or ‘childish.’ King John makes a grant to the men of England and their heirs. The men of England and their heirs are to hold certain liberties of that prince and his heirs for ever. Imagine yourself imprisoned without the lawful judgment of your peers, and striving to prove while you languish in gaol that you are heir to one of the original grantees. Nowadays it is only at a rhetorical moment that Englishmen ‘inherit’ their liberties, their constitution, their public law. When sober, they do nothing of the kind. But, whatever may have ‘quivered on the lip’ of Cardinal Langton and the prelates and barons at Runnymead, the speech that came was the speech of feoffment. Law, if it is to endure, must be inherited. If all Englishmen have liberties, every Englishman has something, some thing, that he can transmit to his heir. Public law cannot free itself from the forms, the individualistic forms of private law."
Footnote 193:
Pollock and Maitland, I. 150, emphasize this disparity. “In form a donation, a grant of franchises freely made by the king, in reality a treaty extorted from him by the confederate estates of the realm, ... it is also a long and miscellaneous code of laws.” Cf. also Ibid., I. 658.
The results of this inquiry seem then to be completely negative. It is useless to describe phenomena of the thirteenth century in modern phraseology which would have been unintelligible to contemporaries. Medieval lawyers experienced great difficulties in trying to express the actual facts of their day in terms of such categories of the Roman jurisprudence as had survived the fall of Rome and Roman civilization. There is no one of the ancient or modern categories which can be applied with confidence to the Great Charter or to the transaction of which it is the record. Magna Carta may perhaps be described as a treaty or a contract which enacts or proclaims a number of rules and customs as binding in England, and reduces them to writing in the unsuitable form of a feudal charter granted by King John to the freemen of England and their heirs.
III. Magna Carta: its Contents and Characteristics.
The confirmation of the rights enumerated in the sixty-three chapters of the Charter represented the price paid by John for the renewed allegiance of the rebels. These rights are fully discussed, one by one, in the second part of the present volume: a brief description of their more prominent characteristics, when viewed as a collective whole, is, therefore, all that is here required.
In the attempt to analyze the leading provisions, various principles of classification have been adopted. Three of these stand out prominently: the various chapters may be arranged according to the functions of the central government which they were intended to limit; according to their own nature as progressive, reactionary, or merely declaratory; and, finally, according to the classes of the community which reaped the greatest benefit.
I. Provisions classified according to the various prerogatives of the Crown which they affect.
Dr. Gneist[194] adopts this principle of division, and arranges the chapters of Magna Carta into five groups according as they place legal limitations (1) on the feudal military power of the Crown, (2) on its judicial power, (3) on its police power, (4) on its financial power, or (5) furnish a legal sanction for the enforcement of the whole. In spite of Dr. Gneist’s high authority, it is doubtful whether an analysis of Magna Carta upon these somewhat arbitrary lines throws much light on its main objects or results. Such a division, if convenient for some purposes, seems artificial and unreal, since it is founded on distinctions which were not clearly formulated in the thirteenth century. The adoption of such a principle of classification with reference to a period when the various functions of the executive were still blended together indiscriminately is somewhat of an anachronism.[195]
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Footnote 194:
Hist. Engl. Const., Chapter XVIII.
Footnote 195:
Dr. Gneist indeed almost confesses this, when, in discussing the limitations of the financial power, he feels constrained to say that many of these are “already comprised in the provisions touching the feudal power.”
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II. Provisions classified according as they are of a progressive, reactionary, or declaratory nature.
Among the many questions pressing for answer, none seem more natural than those which inquire into the relations between the promises made in the Charter and the system of government actually at work under Henry of Anjou and his sons; or the relations between these promises and the still older laws of Edward Confessor.
The view generally entertained is that the provisions of Magna Carta are chiefly, if not exclusively, of a declaratory nature. The Great Charter has for many centuries been described as an attempt to confirm and define existing customs rather than to change them. In the words of Blackstone,[196] writing in 1759, “It is agreed by all our historians that the Great Charter of King John was for the most part compiled from the ancient customs of the realm, or the laws of King Edward the Confessor, by which they usually mean the common law, which was established under our Saxon princes, before the rigours of feudal tenures and other hardships were imported from the continent.” Substantially the same doctrine has been enunciated only the other day, by our highest authority. "On the whole, the charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined and set in writing.[197] This view seems, on the whole, a correct one; the insurgents in 1215 professed to be demanding nothing new, but merely a return to the good laws of Edward Confessor, as supplemented by the promises contained in the charter of Henry I. An unbroken thread runs back from Magna Carta to the laws and customs of Anglo-Saxon England and the old coronation oaths of Ethelred and Edgar. Yet the Great Charter contained much that was unknown to the days of the Confessor and had no place in the promises of Henry I. In many points of detail the Charter must look for its antecedents rather to the administrative changes introduced by Henry II. than to the old customary law that prevailed before the Conquest.
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Footnote 196:
Great Charter, vii.
Footnote 197:
Pollock and Maitland, I. 151.
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Thus it is not sufficient to describe Magna Carta merely as a declaratory enactment; it is necessary to distinguish between the different sources of what it declared. A fourfold division may be suggested. (1) Magna Carta embodied and handed down to future ages some of the usages of the old customary law of Anglo-Saxon England, unchanged by the Conqueror or his successors, now confirmed and purified from abuses. (2) In defining feudal incidents and services, it confirmed many rules of the feudal law brought into England by the Normans subsequently to 1066. (3) It also embodied many provisions of which William I. and even Henry I. knew no more than did the Anglo-Saxon kings—innovations introduced for his own purposes by Henry of Anjou, but, after half a century of experience, now accepted loyally even by the most bitter opponents of the Crown. In the words of Mr. Prothero, “We find ... the judicial and administrative system established by Henry II. preserved almost intact in Magna Carta, though its abuse was carefully guarded against.”[198] Finally, (4) in some few points, the Charter actually aimed at going farther than Henry II., great reformer as he was, had intended to go. Thus, to mention only two particulars, the Petty Assizes are to be taken in every county four times a year, while sheriffs and other local magistrates are entirely prohibited from holding pleas of the Crown.
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Footnote 198:
Simon de Montfort, 17.
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There are two further reasons why we cannot be content with an explanation which dismisses Magna Carta with the bald statement that its provisions are merely of a declaratory nature. History has proved the universal truth of the theory that a purely declaratory enactment is impossible; since the mere lapse of time, by producing an altered historical context, necessarily changes the purport of any Statute when re-enacted in a later age. Even if words identically the same are repeated, the new circumstances read into them a new meaning. Such is the case even when the framers of these re-enactments are completely sincere, which, often, they are not. It is no unusual device for innovators to render their reforms more palatable by presenting them disguised as returns to the past. Magna Carta affords many illustrations of this. Its clauses, even where they profess to be merely confirmatory of the status quo, in reality alter existing custom.
Further, it is of vital importance to bear in mind the exact nature of the provisions confirmed or declared. A re-statement of some of the more recent reforms of Henry II. (or of those of Archbishop Hubert Walter, following in his footsteps) leads logically to progress rather than to mere stability; while the professed confirmation of Anglo-Saxon usages or of ancient feudal customs, fast disappearing under the new régime, implies retrogression rather than standing still. Chapters 34 and 39 of Magna Carta, for example, are of this latter kind. They really demand a return to the system in vogue prior to the innovations of Henry II. when they declare in favour of feudal jurisdictions. Thus, some of the provisions of the Great Charter which, at a casual glance, appear to be correctly described as declaratory, are, in reality, innovations; while others tend towards reaction.
III. Provisions classified according to the estates of the community in whose favour they were conceived.
This third principle of arrangement would stand condemned as completely misleading, if it were necessary to accept as true, in any literal sense, the assertions so frequently made concerning the absolute equality of all classes and interests before the law—as that law was embodied in Magna Carta. Here, then, we are face to face with a fundamental question of immense importance: Does the Great Charter really, as the orthodox traditional view so vehemently asserts, protect the rights of the whole mass of humble Englishmen equally with those of the proudest noble? Is it really a great bulwark of the constitutional liberties of the nation, considered as a nation, in any broad sense of that word? Or is it rather, in the main, a series of concessions to feudal selfishness wrung from the King by a handful of powerful aristocrats? On such questions, learned opinion is sharply divided, although an overwhelming majority of authorities range themselves on the popular side, from Coke (who assumes in every page of his Second Institute that the rights won in 1215 were as valuable for the villein as for the baron) down to writers of the present day. Lord Chatham in one of his great orations[199] insisted that the barons who wrested the Charter from John established claims to the gratitude of posterity because they “did not confine it to themselves alone, but delivered it as a common blessing to the whole people”; and Sir Edward Creasy,[200] in citing Chatham’s words with approval, caps them with more ecstatic words of his own, declaring that one effect of the Charter was “to give and to guarantee full protection for property and person to every human being that breathes English air.” Lord Chatham indeed spoke with the unrestrained enthusiasm of an orator; yet staid lawyers and historians like Blackstone and Hallam seem to vie with him in similar expressions. “An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter”; so we are told by Hallam.[201] Bishop Stubbs unequivocally enunciated the same doctrine. “Clause by clause the rights of the commons are provided for as well as the rights of the nobles.... This proves, if any proof were wanted, that the demands of the barons were no selfish exactions of privilege for themselves.”[202]
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Footnote 199:
House of Lords, 9th January, 1770.
Footnote 200:
History of English Constitution, 151.
Footnote 201:
Middle Ages, II. 447.
Footnote 202:
Const. Hist., I. 570-1.
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Dr. Gneist is of the same opinion. “Magna Carta was a pledge of reconciliation between all classes. Its existence and ratification maintained for centuries the notion of fundamental rights as applicable to all classes in the consciousness that no liberties would be upheld by the superior classes for any length of time, without guarantees of personal liberties for the humble also.”[203]
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Footnote 203:
Gneist, Hist. of Engl. Parl. (trans. by A. H. Keane), 103. Cf. his Const. Hist. (trans. by P. A. Ashworth), 253. “A separate right for nobles, citizens, and peasants, was no longer possible.”
“The rights which the barons claimed for themselves,” says John Richard Green,[204] before proceeding to enumerate them, “they claimed for the nation at large.” The testimony of a very recent writer, Dr. Hannis Taylor,[205] may close this series. “As all three orders participated equally in its fruits, the great act at Runnymede was in the fullest sense of the term a national act, and not a mere act of the baronage on behalf of their own special privileges.” It would be easy to add to this “cloud of witnesses,” but enough has been said to prove that it has been a common boast of Englishmen, for many centuries, that the provisions of the Great Charter were intended to secure, and did secure, the liberties of every class and individual of the nation, not merely those of the feudal magnates on whose initiative the quarrel was raised.
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Footnote 204:
Short History of the English People, 124.
Footnote 205:
English Constitution, I. 380.
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It must not be forgotten, however, that the truth of historical questions does not depend on the counting of votes, or the weight of authority; nor that a vigorous minority has always protested on the other side. “It has been lately the fashion,” Hallam confesses, “to depreciate the value of Magna Charta, as if it had sprung from the private ambition of a few selfish barons, and redressed only some feudal abuses.”[206] It is not safe to accept, without a careful consideration of the evidence, the opinions cited even from such high authorities. “Equality” is essentially a modern ideal: in 1215, the various estates of the realm may have set out on the journey which was ultimately to lead them to this conception, but they had not yet reached their goal. For many centuries after the thirteenth, class legislation maintained its prominent place on the Statute Rolls, and the interests of the various classes were by no means always identical.
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Footnote 206:
Middle Ages, II. 447. See, e.g. Robert Brady, A Full and Clear Answer (1683).
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Two different parts of the Charter have a bearing on this question; namely, chapter 1, which explains to whom the rights were granted, and chapter 61, which declares by whom they were to be enforced. John’s words clearly tell us that the liberties were confirmed “to all freemen of my kingdom and their heirs for ever.” This opens up the crucial question—who were freemen in 1215?
The enthusiasm, natural and even laudable in its proper place, although fatal to historical accuracy in its results, which seeks to enhance the merits of Magna Carta by exalting its provisions and extending their scope as widely as possible, has led commentators to stretch the meaning of “freeman” to its utmost limits. The word has even been treated as embracing the entire population of England, including not only churchmen, merchants, and yeomen, but even villeins as well. There are reasons, however, for believing that it should be understood in a sense much more restricted, although the subject is darkened by the vagueness of the word, and by the difficulty of determining whether it bears any technical signification or not. “Homo,” in medieval law-Latin, has a peculiar meaning, and was originally used as synonymous with "baro"—all feudal vassals, whether of the Crown or of mesne lords, being described as “men” or “barons.” The word was sometimes indeed more loosely used, as may have been the case in chapter 1. Yet Magna Carta is a feudal charter, and the presumption is in favour of the technical feudal meaning of the word—a presumption certainly not weakened by the addition of an adjective confining it to the “free.” This qualifying word certainly excluded villeins, and possibly also the great burgess class, or many of them. There is a passage in the Dialogus de Scaccario (dating from the close of the reign of Henry II.), in which Richard Fitz-Nigel reckons even the richest burgesses and traders as not fully free. He discusses the legal position of any knight (miles) or other freeman (liber homo) losing his status by engaging in commerce in order to make money.[207] This does not prove that rich townsmen were ranked with the villani of the rural districts; but it does raise a serious doubt whether in the strict legal language of feudal charters the words liberi homines would be interpreted by contemporary lawyers as including the trading classes. Such doubts are strengthened by a narrow scrutiny of those passages of the Charter in which the term occurs. In chapter 34 the liber homo is, apparently, assumed to be a landowner with a private manorial jurisdiction of which he may be deprived. In other words, he is the holder of a freehold estate of some extent—a great barony or, at the least, a manor. In this part of the Charter the “freeman” is clearly a county gentleman.
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Footnote 207:
Dialogus, II. xiii. c.
Is the “freeman” of chapter 1 something different? The question must be considered an open one; but much might be said in favour of the opinion that “freeman” as used in the Charter is synonymous with “freeholder”; and that therefore only a limited class could, as grantees or the heirs of such, make good a legal claim to share in the liberties secured by Magna Carta.[208]
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Footnote 208:
In addition to its appearance in the two places mentioned in the text, the word “freeman” appears in five other chapters, namely 15, 20, 27, 30, and 39. The three last instances throw no light on the meaning of the word, since the context of each would be satisfied either with a broader or with a narrower interpretation. It is different, however, with chapter 15, where the freemen are necessarily the feudal tenants of a mesne lord—that is, freeholders; and with chapter 20, where, in the matter of amercement, the freeman is distinctly contrasted with the villanus. Further, where men of servile birth are clearly meant, they are described generally as probi homines (e.g. in chapters 20, 29, and 48), and in one place, chapter 26, as legales homines. Chapter 44 mentions homines without any qualification. It seems safe to infer that the Great Charter never spoke of “freemen” when it meant to include the ordinary peasantry or villagers. In chapter 39 of the re-issue of 1217, liber homo is clearly used as synonymous with “freeholder.”
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To the question, who had authority to enforce its provisions, the Great Charter has likewise a clear answer, namely, a select band or quasi-committee of twenty-five barons. Although the Mayor of London was chosen among their number, it is clear that no strong support for any democratic interpretation of Magna Carta can be founded on the choice of executors; since these formed a distinctly aristocratic body. Yet this tendency to vest power exclusively in an oligarchy composed of the heads of great families may have been counteracted, so it is possible to contend, by the invitation extended by the same chapter to the communa totius terrae to assist the twenty-five Executors against the King in the event of his breaking faith. Unfortunately, the extreme vagueness of the phrase makes it rash in a high degree to build conclusions on such foundations. It is possible to interpret the words communa totius terrae as applying merely to “the community of freeholders of the land,” or even to “the community of barons of the land,” as well as to “the community of all the estates (including churchmen, merchants, and commons) of the land,” as is usually done on no authority save conjecture. Every body of men was known in the thirteenth century as a communa; a word of exceedingly loose connotation.
So far, our investigations by no means prove that the equality of all classes, or the equal participation by all in the privileges of the Charter, was an ideal, consciously or unconsciously, held by the leaders of the revolt against King John. Magna Carta itself contains evidences which point the other way, namely, to the existence of class legislation. At the beginning and end of the Charter, clauses are carefully inserted to secure to the Church its “freedom” and privileges; churchmen, in their special interests, must be safeguarded, whoever else may suffer. “Benefit of clergy,” thus secured, implies the very opposite of “equality before the law.” Other interests also receive separate and privileged treatment. Many, perhaps most, of the chapters have no value except to landowners; a few affect tradesmen and townsmen exclusively, while chapters 20 to 22 adopt distinct sets of rules for the amercement of the ordinary freeman, the churchman, and the earl or baron respectively—an anticipation, almost, of the later division into the three estates of the realm—commons, clergy, and lords temporal. A careful distinction is occasionally made (for example, in chapter 20) between the freeman and the villein, and the latter (as will be proved later on) was carefully excluded from many of the benefits conferred on others by Magna Carta. In this connection, it is interesting to consider how each separate class would have been affected if John’s promises had been loyally kept.
(1) The Feudal Aristocracy. Even a casual glance at the clauses of the Great Charter shows how prominently abuses of feudal rights and obligations bulked in the eyes of its promoters. Provisions of this type must be considered chiefly as concessions to the feudal aristocracy—although it is true that the relief primarily intended for them indirectly benefited other classes as well.
(2) Churchmen. The position of the Church is easily understood when we neglect the privileges enjoyed by its great men quâ barons rather than quâ prelates. The special Church clauses found no place whatsoever in the Articles of the Barons, but bear every appearance of having been tacked on as an after-thought, due probably to the influence of Stephen Langton.[209] Further, they are mainly confirmatory of the separate Charter already twice granted within the few preceding months. The National Church indeed, with all its patriotism, had been careful to secure its own selfish advantage before the political crisis arrived.
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Footnote 209:
Cf. supra, p. 50.
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(3) Tenants of Mesne Lords. When raising troops with the object of compelling John to grant Magna Carta by parade of armed might, the barons were perforce obliged to rely on the loyal support of their own freeholders. It was essential that the knights and others who held under them should be ready to fight for their mesne lords rather than for the King their lord paramount. It was thus absolutely necessary that these under-tenants should receive some recognition of their claims in the provisions of the final settlement. Concessions conceived in their favour are contained in two clauses (couched apparently in no specially generous spirit), namely, chapters 15 and 60. The former limits the number of occasions on which aids might be extorted from sub-tenants by their mesne lords to the same three as were recognized in the case of the Crown. Less than this the barons could scarcely have granted. Chapter 60 provides generally, in vague words, that all the customs and liberties which John agrees to observe towards his vassals shall be also observed by mesne lords, whether prelates or laymen, towards their sub-vassals. This provision has met with a chorus of applause from modern writers. Prof. Prothero declares[210] that “the sub-tenant was in all cases as scrupulously protected as the tenant-in-chief.” Dr. Hannis Taylor[211] is even more enthusiastic. “Animated by a broad spirit of generous patriotism, the barons stipulated in the treaty that every limitation imposed for their protection upon the feudal rights of the king should also be imposed upon their rights as mesne lords in favour of the under-tenants who held of them.”[212] It must, however, be remembered that a vague general clause affords less protection than a definite specific privilege; and that in a rude age such a general declaration of principle might readily be infringed when occasion arose. The barons were compelled to do something, or to pretend to do something, for their under-tenants. Apparently they did as little as they, with safety or decency, could.
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Footnote 210:
S. de Montfort, 17.
Footnote 211:
English Constitution, I. 383.
Footnote 212:
Bishop Stubbs, Preface to W. Coventry, II. lxxii., represents the barons, in their fervour for abstract law, as actually supporting their own vassals against themselves: “the barons of Runnymede guard the people against themselves as well as against the common tyrant.”
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(4) Something was also done for the merchant and trading classes, but, when we subtract what has been read into the Charter by democratic enthusiasts of later ages, not so much as might reasonably be expected in a truly national document. The existing privileges of the great city of London were confirmed, without specification, in the Articles of the Barons; and some slight reforms in favour of its citizens (not too definitely worded) were then added. An attentive examination seems to suggest, however, that these privileges were carefully refined away when the Articles were reduced to their final form in Magna Carta. The right to tallage London and other towns was carefully reserved to the Crown, while the rights of free trading granted to foreigners were clearly inconsistent with the policy of monopoly and protection dear to the hearts of the Londoners. A mere confirmation to the citizens of existing customs, already bought and paid for at a great price, seems but a poor return for the support given by them to the movement of insurrection at a critical moment when John was bidding high on the opposite side, and when their adherence was sufficient to turn the scale. The marvel is that so little was done for them.[213]
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Footnote 213:
For details, see infra under cc. 12, 13, 35, and 41. It is instructive to compare these chapters with the corresponding provisions of the Articles of the Barons (viz. articles 32, 12, and 31). The alterations (though slight) seem to show that some new influence affecting only the later document was inimical to the towns.
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(5) The relation of the villein to the benefits of the Charter has been hotly discussed. Coke claims for him, in regard to the important provisions of chapter 39 at least, that he must be regarded as a liber homo, and therefore as a full participant in all the advantages of the clause.[214] This contention is not well founded. Even admitting the relativity of the word liber in the thirteenth century, and admitting also that the villein performed some of the duties, if he enjoyed none of the rights of the free-born, still the formal description liber homo, when used in a feudal charter, cannot be stretched to cover those useful manorial chattels that had no recognized place in the feudal scheme of society or in the political constitution of England, however necessary they might be in the scheme of the particular manor to the soil of which they were attached.
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Footnote 214:
See Coke, Second Institute, p. 45, “for they are free against all men, saving against their lord.”
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Even if we exclude the villein from the general benefits of the grant, it may be, and has been, maintained that some few privileges were insured to him in his own name. One clause at least is specially framed for his protection. The villein, so it is provided in chapter 21, must not be so cruelly amerced as to leave him utterly destitute; his plough and its equipment must be saved to him. Such concessions, however, are quite consistent with a denial of all political rights, and even of all civil rights, as these are understood in a modern age. The Crown and the magnates, so it may be urged, were only consulting their own interests when they left the villein the means to carry on his farming operations, and so to pay off the balance of his debts in the future. The closeness of his bond to the lord of his manor made it impossible to crush the one without slightly injuring the other. The villein was protected, not as the acknowledged subject of legal rights, but because he formed a valuable asset of his lord. This attitude is illustrated by a somewhat peculiar expression used in chapter 4, which prohibited injury to the estate of a ward by “waste of men or things.” For a guardian to raise a villein to the status of a freeman was to benefit the enfranchised peasant at the expense of his young master.[215]
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Footnote 215:
Cf. under c. 4 infra.
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Other clauses both of John’s Charter and of the various re-issues show scrupulous care to avoid infringing the rights of property enjoyed by manorial lords over their villeins. The King could not amerce other people’s villeins harshly, although those on his own farms might be amerced at his discretion. Chapter 16, while carefully prohibiting any arbitrary increase of service from freehold property, leaves by inference all villein holdings unprotected. Then the “farms” or rents of ancient demesne might be arbitrarily raised by the Crown,[216] and tallages might be arbitrarily taken (measures likely to press hardly on the villein class). The villein was deliberately left exposed to the worst forms of purveyance, from which chapters 28 and 30 rescued his betters. The horses and implements of the villanus were still at the mercy of the Crown’s purveyors. The re-issue of 1217 confirms this view; while demesne waggons were protected, those of villeins were left exposed.[217] Again, the chapter which takes the place of the famous chapter 39 of 1215[218] makes it clear that lands held in villeinage are not to be protected from arbitrary disseisin or dispossession. The villein was left by the common law merely a tenant-at-will—subject to arbitrary ejectment by his lord—whatever meagre measure of protection he might obtain under the “custom of the manor” as interpreted by the court of the lord who oppressed him.
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Footnote 216:
See under c. 25 infra.
Footnote 217:
See chapter 26 of 1217.
Footnote 218:
See chapter 35 of 1217.
Even if it were possible to neglect the significance of any one of these somewhat trivial points, when all of them are placed side by side their meaning is clear. If the bulk of the English peasantry were protected at all by Magna Carta that was merely because they formed valuable assets of their lords. The Charter viewed them as "villeins regardant"—as chattels attached to a manor, not as members of an English commonwealth.[219]
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Footnote 219:
Dr. Stubbs takes an entirely different view. While admitting that there is “so little notice of the villeins in the charter,” he explains the omission apparently on two distinct grounds, (1) that they had fewer grievances to redress than members of other classes, and (2) that they participated in all the grants from which they were not specially excluded. “It was not that they had no spokesman, but that they were free from the more pressing grievances, and benefited from every general provision.” Preface to W. Coventry, II., lxxiii.
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The general conclusion to be derived from this survey is that, while much praise may be due to the baronial leaders for their comparatively liberal interest in the rights of others, they are scarcely entitled to the excessive laudation they have sometimes received. The rude beginnings of many features which have since come into prominence in English institutions (such as the conceptions of patriotism and nationality and the principles of equality before the law and the tender regard for the rights of the humble) may possibly be found in the germ in some parts of the completed Charter; but the Articles of the Barons were what their name implies, a baronial manifesto, seeking chiefly to redress the private grievances of the promoters, and mainly selfish in motive.
Yet, when all deductions have been made (and it has seemed necessary to do this with emphasis in order to redress the false balance created by the exaggerations of enthusiasts), the Great Charter still stands out as a prominent landmark in the sequence of events which have led, in an unbroken chain, to the consolidation of the English nation, and to the establishment of a free and constitutional form of polity upon a basis so enduring that, after more than eight centuries of growth, it still retains the vigour and the buoyancy of youth.
IV. Magna Carta: an Estimate of its Value.
No evidence survives to show that the men of John’s reign placed any excessive or exaggerated importance on the Great Charter; but, without a break since then, the estimate of its worth steadily increased until it came to be regarded almost as a fetish among English lawyers and historians. No estimate of its value can be too high, and no words too emphatic or glowing to satisfy its votaries. In many a time of national crisis, Magna Carta has been confidently appealed to as a fundamental law too sacred to be altered—as a talisman containing some magic spell, capable of averting national calamity.
Are these estimates of its value justified by facts, or are they gross exaggerations? Did it really create an epoch in English history? If so, wherein did its importance exactly lie?
The numerous factors which contributed towards the worth of Magna Carta may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its intrinsic value depends on the nature of its own provisions. The reforms demanded by the barons and granted by this Charter were just and moderate. The avoidance of all extremes tended towards a permanent settlement, since moderation both gains and keeps adherents. Its aims were practical as well as moderate; the language in which they were framed, clear and straightforward. A high authority has described the Charter as “an intensely practical document.”[220] This practicality is an essentially English characteristic, and strikes the key-note of almost every great movement for reform which has held a permanent place in English history. Closely connected with this feature is another—the essentially legal nature of the whole. As Magna Carta was rarely absent from the minds of subsequent opponents of despotism, a practical and legal direction was thus given to the efforts of Englishmen in many ages.[221] Therein lies another English characteristic. While democratic enthusiasts in France and America have often sought to found their rights and liberties on a lofty but unstable basis of philosophical theory embodied in Declarations of Rights; Englishmen have occupied lower but surer ground, aiming at practical remedies for actual wrongs, rather than enunciating theoretical platitudes with no realities to correspond.
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Footnote 220:
Prof. F. W. Maitland, Social England, I., 409.
Footnote 221:
Cf. Gneist, Const. Hist., Chapter XVIII.: “By Magna Carta English history irrevocably took the direction of securing constitutional liberty by administrative law.”
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Another intrinsic merit of the Charter was that it made definite what had been vague before. Definition is a valuable protection for the weak against the strong; whereas vagueness increases the powers of the tyrant who can interpret while he enforces the law. Misty rights were now reduced to a tangible form, and could no longer be broken with so great impunity. Magna Carta contained no crude innovations, and confirmed many principles whose value was enhanced by their antiquity. King John, in recognising parts of the old Anglo-Saxon customary law, put himself in touch with national traditions and the past history of the nation.
Further, the nature of the provisions bears witness to the broad basis on which the settlement was intended to be built. The Charter, notwithstanding the prominence given to redress of feudal grievances, redressed other grievances as well. In this, the influence of the Church and notably of its Primate, can be traced. Some little attention was given to the rights of the under-tenants also, and even to those of the merchants, while the villein and the alien were not left entirely unprotected. Thus the settlement contained in the Charter had a broad basis in the affection of all classes.
(2) Part of the value of Magna Carta may be traced to extrinsic causes; to the circumstances which gave it birth—to its vivid historical setting. The importance of each one of its provisions is emphasized by the object-lessons which accompanied its inauguration. The whole of Christendom was amazed by the spectacle of the King of a great nation obliged to surrender at discretion to his own subjects, and that, too, after he had scornfully rejected all suggestions of a compromise. The fact that John was compelled to accept the Charter meant a loss of royal prestige, and also great encouragement to future rebels. What once had happened, might happen again; and the humiliation of the King was stamped as a powerful image on the minds of future generations.
Such considerations almost justify enthusiasts, who hold that the granting of Magna Carta was the turning-point in English history. Henceforward it was more difficult for the king to invade the rights of others. Where previously the vagueness of the law lent itself to evasion, its clear re-statement and ratification in 1215 pinned down the king to a definite issue. He could no longer plead that he sinned in ignorance; he must either keep the law, or openly defy it—no middle course was possible.
When all this has been said, it may still be doubted whether the belief of enthusiasts in the excessive importance of Magna Carta has been fully justified. Many other triumphs, almost equally important, have been won in the cause of liberty, and under circumstances almost equally notable; and many statutes have been passed embodying these. Why then should Magna Carta be invariably extolled as the palladium of English liberties? Is not, when all is said, the extreme merit attributed to it mainly of a sentimental or imaginative nature? Such questions must be answered partly in the affirmative. Much of its value does depend on sentiment. Yet all government is, in a sense, founded upon sentiment—sometimes affection, sometimes fear. Psychological considerations are all-powerful in the practical affairs of life. Intangible and even unreal phenomena have played an important part in the history of every nation. The tie that binds the British colonies at the present day to the Mother Country is largely one of sentiment; yet the troopers from Canada and New Zealand who responded to the call of Britain in her hour of need produced practical results of an obvious nature. The element of sentiment in politics can never be ignored.
It is no disparagement to Magna Carta, then, to confess that part of its power has been read into it by later generations, and lies in the halo, almost of romance, which has gradually gathered round it in the course of centuries. It became a battle cry for future ages, a banner, a rallying point, a stimulus to the imagination. For a king, thereafter, openly to infringe the promises contained in the Great Charter, was to challenge the bitterness of public opinion—to put himself palpably in the wrong. For an aggrieved man, however humble, to base his rights upon its terms was to enlist the warm sympathy of all. Time and again, from the Barons’ War against Henry III. to the days of John Hampden and Oliver Cromwell, the possibility of appealing to the words of Magna Carta has afforded a practical ground for opposition; an easily intelligible principle to fight for; a fortified position to hold against the enemies of the national freedom. The exact way in which this particular document—dry as its details at first sight may seem—has, when considered as a whole, fired the popular imagination, is difficult to determine. Such a task lies rather within the sphere of the student of psychology than of the student of history, as usually conceived. However difficult it may be to explain this phenomenon, there is no doubt of its existence. The importance of the Great Charter, originally flowing both from the intrinsic and from the extrinsic features already described, has greatly increased, as traditions, associations, and aspirations have clustered more thickly round it. These have augmented in each succeeding age the reverence in which it has been held, and have made ever more secure its hold upon the popular imagination.
Thus Magna Carta, in addition to its legal value, has a political value of an equally emphatic kind. Apart from and beyond the salutary effect of the many useful laws it contained, its moral influence has contributed to a marked advance of the national spirit, and therefore of the national liberties. A few of the aspects of this advance deserve to be emphasized. The King, by granting the Charter in solemn form, admitted that he was not an absolute ruler—admitted that he had a master over him in the laws which he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate and inaugurate “the reign of law” or “the rule of law” in the phrase made famous by Professor Dicey.[222]
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Footnote 222:
A. V. Dicey, Law of the Constitution, Part II.
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It marks also the commencement of a new grouping of political forces in England; indeed without such a rearrangement the winning of the Charter would have been impossible. Throughout the reign of Richard I. the old tacit understanding between the king and the lower classes had been endangered by the heavy drain of taxation; but the actual break-up of the old alliance only came in the crisis of John’s reign. Henceforward can be traced a gradual change in the balance of parties in the commonwealth. No longer are Crown and people united, in the name of law and order, against the baronage, standing for feudal disintegration. The mass of humble freemen and the Church are for the moment in league with the barons, in the name of law and order, against the Crown, recently become the chief law-breaker.
The possibility of the existence of such an alliance, even on a temporary basis, involved the adoption by its chief members of a new baronial policy. Hitherto each great baron had aimed at his own independence or aggrandisement, striving on the one hand to gain new franchises for himself, or to widen the scope of those he already had, and on the other to weaken the king and to keep him outside these franchises. This policy, which succeeded both in France and in Scotland, had before John’s reign already failed signally in England, and the English barons now, on the whole, came to admit the hopelessness of renewing the struggle for feudal independence. They substituted for this ideal of an earlier age a more progressive policy. The king, whose interference they could no longer hope completely to shake off, must at least be taught to interfere justly and according to rule; he must walk only by law and custom, not by the caprices of his evil heart. The barons sought henceforward, to control the royal power they could not exclude; they desired some determining share in the national councils, if they could no longer hope to create little nations of their own within the four corners of their fiefs. Magna Carta was the fruit of this new policy.
It has been often repeated, and with truth, that the Great Charter marks also a stage in the growth of national unity or nationality. Here, however, it is necessary to guard against exaggeration. It is merely one movement in a process, rather than a final achievement. We must somewhat discount, while still agreeing in the main with, statements which declare the Charter to be “the first documentary proof of the existence of a united English nation”; or with the often-quoted words of Dr. Stubbs, that “The Great Charter is the first great public act of the nation, after it has realised its own identity.”[223]
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Footnote 223:
Const. Hist., I. 571. Cf. Ibid., I. 583, “The act of the united nation, the church, the barons, and the commons, for the first time thoroughly at one.” Who were “the commons” in 1215? The question is a difficult one to answer. Cf. also Mr. Prothero, Simon de Montfort, 18, “The spirit of nationality of which the chief portion of Magna Carta was at once the product and the seal.”
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A united English nation, whether conscious or unconscious of its identity, cannot be said to have existed in 1215, except under several qualifications. The conception of “nationality,” in the modern sense, is of comparatively recent origin, and requires that the lower as well as the higher classes should be comprehended within its bounds. Further, the coalition which wrested the Charter from the royal tyrant was essentially of a temporary nature, and quickly fell to pieces again. Even while the alliance continued, the interests of the various classes, as has been already shown, were far from identical. Political rights were treated as the monopoly of the few (as is evidenced by the retrograde provisions of chapter 14 for the composition of the Commune concilium); and civil rights were far from universally distributed. The leaders of the “national” movement certainly gave no political rights to the despised villeins, who comprised more than three quarters of the entire population of England; while their civil rights were almost completely ignored in the provisions of the Charter.
Magna Carta undoubtedly marked one step, an important step, in the process by which England became a nation; but that step was neither the first nor yet the final one.
V. Magna Carta. Its defects.
The great weakness of the Charter lay in this, that no adequate sanction was attached to it, in order to ensure the enforcement of its provisions. The only expedient suggested for compelling the King to keep his promises was of a nature at once clumsy and revolutionary, and entirely worthless considered as a working scheme of government. Indeed, it was devised not so much to prevent the King from breaking faith as to punish him when he had done so. In other words, no proper constitutional machinery was invented to turn the legal theories of Magna Carta into practical realities. In its absence, we find what has sometimes been described as “a right of legalized rebellion” conferred on an executive committee of twenty-five of the King’s enemies.
This is the chief defect, but not the only one. Many minor faults and omissions may be traced to a similar root. All the great constitutional principles are in reality conspicuously absent. The importance of a council or embryo parliament, constituted on truly national lines (of which some glimmerings can be traced in 1213); the right of such a body to influence the King’s policy in normal times as well as in times of crisis; the doctrine of ministerial responsibility (already dimly foreshadowed in the reign of Richard); the need of distinguishing the various functions of government, legislative, judicial, and administrative—all these cardinal principles are completely ignored by the Charter. Not one of its many clauses affords evidence that the statesmen of the day had any conception, even of a rudimentary nature, of the principles of political science.
Only five of the sixty-three chapters can be said to bear directly on the subject of constitutional (as opposed to purely legal) machinery, and most of these do so only incidentally, namely, chapters 14, 21, 39, 61, and 62.
The Commune Concilium is indeed mentioned; and its composition and mode of summons are clearly defined in chapter 14. But it must be remembered that this chapter appears as a mere afterthought,—as an appendix to chapter 12; its incidental nature is proved by the fact that it has no counterpart in the Articles of the Barons. The rebel magnates were vitally interested in the narrow question of scutage, not in the wide possibilities involved in the existence of a national council. The Commune Concilium was dragged into the Charter, not on its own merits, but merely as a convenient method of preventing the arbitrary increase of feudal exactions. That this was so, is further proved by the fact that both parties were content to omit all mention of the Council from the re-issue of 1217, when an alternative way of checking the arbitrary increase of scutage had been devised.
If the framers of John’s Magna Carta had possessed any grasp of constitutional principles, they would gladly have seized the opportunity afforded them by the mention, however incidentally, of the Common Council, in chapters 12 and 14, in order to define most carefully the powers which they claimed for it. On the contrary, no list of its functions is drawn up; nor do the words of the Charter contain anything to suggest that it exercised any powers other than that of consenting to scutages and aids. Not a word is said of any right inherent in the Council to a share in legislation, to control or even to advise the Executive, or to concur in choosing the great ministers of the Crown. Neither deliberative, administrative, nor legislative powers are secured to it, while its control over taxation is strictly limited to the right to veto scutages and aids—that is say, it only extends over that very narrow class of exactions which affected the military tenants of the Crown. It is true that chapters 21 and 39 may possibly be read confirming the judicial power of the Council in a certain limited group of cases. Earls and barons are not to be amerced except by their peers (per pares suos), and the natural place for these “equals” of a Crown vassal to assemble for this purpose would be the Commune Concilium. This, however, is merely matter of inference; chapter 21 makes no mention of the Council; and it is equally possible that its requirements would be met by the presence among the officials of the Exchequer of a few Crown tenants.[224] Similar reasoning applies to the provisions of chapter 39 (protecting the persons and property of freemen, by insisting on the necessity of a “trial by peers”) so far as they affect earls and barons.
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Footnote 224:
This is the view of Mr. L. O. Pike, House of Lords, 204.
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It is clear that the leaders of the opposition in 1215 did not consider the constitutional powers of a national Parliament the best safeguard of the rights and liberties theoretically guaranteed by the Charter. Only one practical or constitutional expedient seems to have occurred to them, namely, that embodied in chapter 61. Twenty-five barons were to be appointed by their fellow-barons to act as Executors of the Charter; but their functions were apparently only to be called into play in the event of King John or his officers breaking any of the provisions of the Charter. If this occurred, intimation might be made to a smaller sub-committee of four, chosen from the twenty-five, and these four would straightway ask the King to redress the grievance complained of. If this was not done within forty days, John granted to the Committee of twenty-five, assisted by “the whole community of the realm,” the right practically to make war upon him. He conferred on them in the most explicit terms full power “to distrain and distress us in all possible ways, by seizing our castles, lands, possessions, and in any other way they can, until the grievances are redressed according to their pleasure.”
Such a provision can hardly be described as constitutional, since it is rather the negation of all constitutional principles—nothing more nor less than legalized rebellion. Provision is made not for the orderly conduct of government, but rather to provide an organization for making war upon the king in certain abnormal circumstances which are defined. Such a scheme was clearly impracticable, and the fact that it recommended itself as a possible expedient to the barons speaks eloquently of their complete ignorance of the most elementary principles of the science of government. Civil war levied on a warrant granted beforehand by the king is treated as a constitutional expedient for the redress of particular grievances as they arise.[225]
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Footnote 225:
Details of this scheme, and a fuller discussion of its defects will be found infra under chapter 61.
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The same inability to devise practical remedies for specific evils may be traced in several minor clauses of the Charter.[226] When John promised in chapter 16 that no one should be compelled to do greater service than had been formerly due from any holding, no attempt was made, in case of dispute, to provide constitutional machinery to define what such service actually was; while chapter 45, providing that only men who knew the law, and meant to keep it, should be made justiciars, sheriffs or bailiffs, laid down no criterion of fitness, and contained no suggestion of any way in which so laudable an ambition might be realized.
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Footnote 226:
Magna Carta has been described, in words already quoted with approval, as “an intensely practical document,” Professor Maitland, Social England, I. 409; but this requires some qualification. If it was practical in preferring the condemnation of definite practical grievances to the enunciation of philosophical principles, it was unpractical in omitting to provide machinery for giving effect to its provisions.
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Thoughtful and statesmanlike as were the provisions of Magna Carta, and wide as was the ground they covered, many important omissions can be pointed out. Some crucial questions seem not to have been foreseen, and others, for example the liability to foreign service, were deliberately shelved[227]—thus leaving room for future misunderstandings. The praise, justly earned, by its framers for the care and precision with which they defined a long list of the more crying abuses, must be qualified in view of the failure to provide procedure to prevent their recurrence. Men had not yet learned the force of the maxim, so closely identified with all later reform movements in England, that a right is valueless without an appropriate remedy to enforce it.[228]
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Footnote 227:
Except in so far as affected by cc. 12 and 16.
Footnote 228:
Mr. Prothero estimates much more highly the constitutional value of Magna Carta: "The constitutional struggles of the following half-century would to a great extent have been anticipated had it retained its original form."—Simon de Montfort, 14.
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VI. Magna Carta: Value of Traditional Interpretations.
The Great Charter has formed a favourite theme for orators and politicians in all periods of English history, partly because of its intrinsic merit, partly because of the dramatic background of its historical setting, but chiefly because it has been, from the time of its inception down to the present day, a rallying cry and a protecting bulwark in every crisis which threatened to endanger the national liberties.
The uses to which it has been put, and the interpretations which have been read into it, are so numerous and so varied, that they would require a separate treatise to do them justice. Not only was Magna Carta, as will be shown in some detail in a later section, frequently reissued and confirmed, but its provisions have been asserted and re-asserted time after time, in Parliament, in the courts of justice, and in institutional works on jurisprudence. Its influence has thus been threefold; and any attempt to explain its bearing on the subsequent history of English liberties would require to distinguish between these three separate and equally important aspects. (1) It has supplied a powerful instrument in the hands of politicians, especially of the leaders of the House of Commons in the seventeenth century, when waging the battle of constitutional freedom against the Stewart dynasty. (2) Its legal aspect has been as important as its political one, since it has been cited in innumerable litigations before the various courts of law. In the course of legal debate and of judicial opinions, it has been the subject of many and conflicting interpretations, some of them accurate and some erroneous. (3) Finally, it has been discussed in many commentaries either exclusively devoted to its elucidation or else treating of it incidentally in the course of general expositions of the law of England.
An exhaustive search throughout the seven centuries which separate us from 1215 for instances in which Magna Carta has appeared in the arena of politics, on the judicial bench, or in legal treatises would prove a gigantic task, but could hardly fail to illustrate the inestimable services it has rendered to English liberties.
In the light of the important part which Magna Carta has thus played throughout many centuries of English history, it need not excite wonder that the estimation in which it was held, high as that was from a very early period, has gradually increased, until it has overstepped all due bounds, and has become utterly exaggerated and distorted. While some sympathy may be felt for such extravagant admiration, not unnatural in the circumstances, it is clearly the duty of the commentator to correct false impressions. It is well to point out that no document of human origin can be really worthy of the excessive eulogy of which the Great Charter has been made the subject; unfortunately, it has more frequently been described in terms of inflated rhetoric than of sober methodical analysis.[229]
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Footnote 229:
Extravagant estimates of its value will readily occur to anyone acquainted with the literature of the subject. For example, Sir James Mackintosh (History of England, I. 218, edn. of 1853) declares that we are “bound to speak with reverential gratitude of the authors of the Great Charter. To have produced it, to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, etc., etc.” Such uncritical eulogy contributes nothing to the understanding of Magna Carta.
Nor has this tendency to unthinking adulation been entirely confined to popular writers; judges and institutional authors, even Sir Edward Coke himself, have too often lost the faculty of critical and exact scholarship when confronted with the virtues of the Great Charter. There is scarcely one great principle of the English constitution of the present day, or indeed of any constitution in any day, calculated to secure national liberties, or otherwise to win the esteem of mankind, which has not been read by commentators into the provisions of Magna Carta. In particular, the political leaders of the seventeenth and eighteenth centuries discovered among its chapters every important reform which they desired to introduce into England, thereby disguising the revolutionary nature of many of their projects by dressing them in the garb of the past.
Many instances of the constitutional principles and institutions, with the origin of which successive commentators have erroneously credited the Great Charter, will be expounded under the appropriate chapters of the sequel. It will be sufficient in the meantime to enumerate trial by jury; the right of every prisoner to obtain a writ of Habeas Corpus; the abolition of all arbitrary imprisonment at the king’s command; the complete prohibition of monopolies; the enunciation of a close and indissoluble tie between taxation and representation; equality of all and sundry before the law; a matured conception of nationality, embracing high and low, freeman and villein alike: all these, and more, have been discovered in various clauses of the Great Charter.[230]
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Footnote 230:
Edmund Burke (Works, II. 53, edn. of 1837, Boston) credits Magna Carta with creating the House of Commons! “Magna Charta, if it did not give us originally the House of Commons, gave us at least a House of Commons of weight and consequence.” As will be shown in the sequel, chapter 14 of the Great Charter (the only one bearing on the subject) is in reality of a reactionary nature, confining the right of attendance at the commune concilium to the freeholders of the Crown and departing from the precedent of two years earlier, which introduced representatives of each county.
If these tendencies to excessive and sometimes ignorant praise have been unfortunate from one point of view, they have been most fortunate from another. The legal and political aspects must be sharply contrasted. On the one hand, the vague and inaccurate words used in speaking of the Charter even by great lawyers, such as Coke (not necessarily equally great as historians, living as they did in an age when the science of history was unknown), have not only obscured the bearing of many chapters, but have done a distinct injury to the study of the development of English law. On the other hand, as the mistakes made in commenting on the Charter have been almost entirely due to a laudable desire to extend as widely as possible its provisions in favour of individual and national liberties, and to magnify generally its importance; the service these very errors have done to the cause of constitutional progress is measureless. If political bias has coloured the interpretation placed on many of the most famous clauses, the ensuing benefit has accrued not to any one narrow party or faction, not to any separate class or interest, but rather to the entire body politic and to the cause of national progress in its widest and best developments.
Thus the historian of Magna Carta, while bound to correct estimates now seen to be erroneous in the light of modern research, cannot afford to despise or under-estimate the value of traditional interpretations. The meanings which have been read into it by the learned men of later ages, and which have been acquiesced in by public opinion of the day, have had an equally potent effect whether they were historically well founded or ill founded. The stigma of being banned by the Great Charter was usually too great a burden for any institution or line of policy to bear. If the belief prevailed that an abuse complained of was really prohibited by Magna Carta, the most arbitrary king had difficulty in finding judges who would declare it legal, or trustworthy ministers who would persevere in enforcing it. The prevalence of such a belief was the main point; whether it was well or ill founded was, for political purposes, quite immaterial. The greatness of Magna Carta lies not so much in what it was to its framers in 1215, as in what it afterwards became to the political leaders, to the judges and lawyers, and to the entire mass of the men of England in later ages.
VII. Magna Carta. Its traditional relation to Trial by Jury.
One persistent error, universally adopted for many centuries, and even now hard to dispel, is that the Great Charter granted or guaranteed trial by jury.[231] This belief, however, which has endured so long and played so prominent a part in political theory, is now held by all competent authorities to be entirely unfounded. Not one of the three forms of a modern jury trial had taken definite shape in 1215, although the root principle from which all three subsequently grew had been in constant use since the Norman Conquest. Henry II., indeed, had done much towards developing existing tendencies in the direction of all three of its forms, namely, of the grand jury, the petty criminal jury, and the jury of civil pleas.
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Footnote 231:
The source of this error was the identification of the judicium parium of chapter 39 with jury trial. This mistake is fully refuted infra under that chapter.
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Magna Carta, embodying as it does many of the innovations of Henry of Anjou, necessarily contains indications of the existence of these tendencies. Yet, as these occur incidentally in various provisions of unconnected chapters, and as they cannot readily be recognized, on account of the technical language in which they are usually couched and the apparently trivial points of legal procedure to which they relate, it seems well to preface the separate consideration of each of them under its appropriate chapter, by a short account of their mutual relations. This will conduce to a clear understanding alike of trial by jury and of the Great Charter itself.
Jury trial in each of the three forms in which it is known to modern English law is able to trace an unbroken pedigree (though by three distinct lines of descent) from the same ancestor, namely, from that principle known as recognitio or inquisitio, which was introduced into England by the Normans, and was simply the practice whereby the Crown obtained information on local affairs from the sworn testimony of local men. While thus postulating a foreign origin for this “palladium of English liberties,” we are afforded consolation by the remembrance of a fact which some modern authorities are too much inclined to neglect, namely, that the soil was prepared by Anglo-Saxon labour for its planting.[232]
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Footnote 232:
The theory now generally accepted that the origin of trial by jury must be sought in procedure introduced by the Norman Dukes and not in any form of popular Anglo-Saxon institutions is ably maintained by Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer, Evidence, p. 7. Undoubtedly their conclusions are in the main correct; but in their natural desire to remove misconceptions, they are possibly guilty of some slight exaggeration. Trial by jury may have had more than one root, and a full appreciation of the value of the Norman contribution need not lead to the total neglect of the Anglo-Saxon one. Accepted conclusions in this respect might profitably be supplemented by the opinions of Dr. Hannis Taylor, English Constitution, I. 308 and I. 323.
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The old English institution of the frithborh—the practice of binding together little groups of neighbours for preservation of the peace—and the custom of sending representatives of the villages to the Hundred Courts, had alike accustomed the natives to corporate action and formed in some sort precedents for what their Norman masters compelled them to do, namely, to give their evidence on local matters jointly and on oath. Further, one form of the jury—the jury of accusation—is clearly foreshadowed (in spite of the complete breach of continuity in the intervening period) by the directions given to the twelve senior thegns of each Wapentake by a well-known law of Ethelred. Yet the credit of establishing the jury system as a fundamental institution in England is undoubtedly due to the Norman and Angevin kings, although they acted in their own interests and not in those of their oppressed subjects, and although they had no clear vision of the ultimate consequences of what they did. The uses to which the Inquisitio was put by William and his sons in framing Domesday Book, collecting information about existing laws, and dispensing justice, have already been discussed.[233]
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Footnote 233:
See supra, pp. 105-6.
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It was reserved for Henry II. to start the institution on a further career of development; he it was who thus laid the foundations of the modern jury system. Strangely enough, he did this not merely in one of its forms, but in all three of them.
(1) In re-organizing machinery for the suppression and punishment of crime by the Assizes of Clarendon and Northampton, he established the general principle that criminal trials should (in the normal case) begin with formal indictment of the accused by a representative body of neighbours sworn to speak the truth.[234] This was merely a systematic enforcement of one of the many forms of inquisitio already in use; from that date onwards the practice so established has been followed in England. Criminal prosecution cannot be begun on mere suspicion or irresponsible complaints. The jury of accusation (or presentment) may be said to have been instituted in 1166, and has continued in use ever since, passing by an unbroken course of development into the grand jury of the present day.[235]
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Footnote 234:
See Pollock and Maitland, I. 131. It was part of Henry’s policy to substitute indictment by a representative jury for the older appeal by the wronged individual or his surviving relatives. The older procedure, however, was not completely abolished though looked upon with disfavour. Its continuance and also its unpopularity may both be traced in chapter 54 of Magna Carta. See infra.
Footnote 235:
Chapter 38 of Magna Carta, according to a plausible interpretation of an admittedly obscure passage, seems to insist on the necessity of such an accusation by the jury:—“non ... sine testibus fidelibus ad hoc inductis.”
(2) By insisting that the ordeal was the only adequate test of an accused man’s guilt or innocence, Henry unconsciously prepared the way for a second form of jury. When the fourth Lateran Council in the very year of Magna Carta forbade priests to countenance ordeal by their presence or blessing, a death-blow was really dealt to that form of procedure or “test,” since it depended for its authority on superstition. A canon of the Church had thus suddenly struck away the pivot on which Henry had made his entire criminal system to revolve. Some substitute required urgently to be devised. It was to supply this that the petty jury (or its rude antecedent) came into existence. The man who had been publicly accused as presumably guilty by the voice of his neighbours, was asked if he was willing to stand or fall by a further and final reference to the oath of a second jury of neighbours. This second verdict, then, was the new “test” or “law” substituted, if the accused man agreed, for his old right of proving himself innocent by the ordeal. By obscure steps, on which those best entitled to speak with authority are not yet agreed, this jury, giving a second and final verdict, gradually developed into the criminal jury of twelve, the petty jury of to-day, the characteristics of which are well known and which has had so important an influence on the development of constitutional liberties in England, and even, it is said, on the national character.
Another expedient of Henry’s invention must have aided the movement in the direction of the criminal jury, namely, the writ de odio et atia by applying for which a man “appealed” or accused of a crime might substitute what was practically a jury’s verdict for the “battle” which had previously, in the normal case, followed “appeal” as a matter of course.[236]
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Footnote 236:
For fuller details see infra under chapter 36, and supra p. 108.
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(3) The Civil Jury owes its origin to quite a different set of reforms, though inaugurated by the same reformer. Among the evil legacies left to Henry II. from Stephen’s reign, not the least troublesome were the numerous claims advanced by rival magnates to the various estates and franchises which had been bestowed with equally lavish hands, but on different persons, by Matilda and Stephen. Henry realized the urgent need of giving his realm rest by protecting vested interests and by introducing a more rational expedient than trial by combat for deciding between rival claimants to landed estates. Here again he had recourse to a new development of “inquisition.” In such cases an option was given to the defendant (the man in possession, the man with a vested interest which deserved protection), to refer the question at issue to the verdict of local recognitors, twelve knights or freeholders in this case, and therefore men of some position. The name “Assize” was, for reasons to be immediately explained, applied alike to the procedure itself and to the twelve neighbours who gave the verdict.
This new expedient, perhaps because it was looked on with suspicion as an innovation of a violent and revolutionary nature, was applied at first only to a few special cases, namely, to certain disputes as to vested interests in land. It was used to settle claims of ultimate title—the out-and-out ownership of the land—and then it was known as the Grand Assize; it was also used to settle a few well-defined groups of pleas of disputed possession, and then it was known as a Petty Assize (of which there were, however, three distinct and well-known varieties).[237]
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Footnote 237:
These three Petty Assizes are mentioned by name in c. 18 of the Great Charter, and under that heading the entire subject is more fully discussed. See infra.
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In these cases, the defendant could escape “battle” and compel the plaintiff, even against his will, to submit his claim to the verdict of the recognitors. This new-fangled privilege of the defendant had no basis in the ancient custom of the land, but depended solely on royal prerogative. The king, by a high-handed act of power, thus favoured the defendant, by depriving the claimant of that remedy which was his right by feudal law, namely, the resort to the legal duel. It was because the new procedure was thus founded on a royal Ordinance, that the name “Assize” was applied to it. The assisa was a remedy strictly confined to four groups of pleas.
By consent of both parties, however, disputes of almost every description might be similarly determined; being referred (under supervision of the king’s judges) to the verdict of local recognitors, usually twelve in number, who were then known as a jurata (not an assisa, the two being strictly opposed to each other). While the assisa was narrowly confined to a few types of cases, the jurata, since it favoured neither party, was a flexible remedy capable of indefinite expansion, and thus soon became the more popular and the more important of the two. Yet the ancient assisa and the ancient jurata, always closely connected, and resembling each other in most essential features, can both claim to be ancestors of the modern civil "jury,"—the name of the more popular institution having survived. Magna Carta, in providing for the frequent holding of the three Petty Assizes, marked a stage in the development of the Civil Jury; while, in enforcing the criminal procedure of Henry Plantagenet, and guarding it from abuse, the Charter had also a vital bearing on the genesis of the Grand Jury and the Petty Jury alike.
These scattered and incidental references to tendencies still vague and indefinite must not, however, be misread as a reference to the definite procedure into which at a later date they coalesced: Magna Carta does not promise “trial by jury” to anyone.