[1068]. See c. 46 of 1217.
[1069]. The words “in perpetuum” are written at the foot of one of the Cottonian versions. See supra, 195, n.
CHAPTER SIXTY-ONE.
Cum autem pro Deo, et ad emendacionem regni nostri, et ad melius sopiendam discordiam inter nos et barones nostros ortam, hec omnia predicta concesserimus, volentes ea integra et firma stabilitate in perpetuum[[1069]] gaudere, facimus et concedimus eis securitatem subscriptam; videlicet quod barones eligant viginti quinque barones de regno quos voluerint, qui debeant pro totis viribus suis observare, tenere, et facere observari, pacem et libertates quas eis concessimus, et hac presenti carta nostra confirmavimus, ita scilicet quod, si nos, vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris nostris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum pacis aut securitatis transgressi fuerimus, et delictum ostensum fuerit quatuor baronibus de predictis viginti quinque baronibus, illi quatuor barones accedant ad nos vel ad justiciarum nostrum, si fuerimus extra regnum, proponentes nobis excessum, petent ut excessum illum sine dilacione faciamus emendari. Et si nos excessum non emendaverimus, vel, si fuerimus extra regnum justiciarius noster non emendaverit, infra tempus quadraginta dierum computandum a tempore quo monstratum fuerit nobis vel justiciario nostro si extra regnum fuerimus, predicti quatuor barones referant causam illam ad residuos de viginti quinque baronibus, et illi viginti quinque barones cum communa tocius terre distringent et gravabunt nos modis omnibus quibus poterunt, scilicet per capcionem castrorum, terrarum, possessionum, et aliis modis quibus poterunt, donec fuerit emendatum secundum arbitrium eorum, salva persona nostra et regine nostre et liberorum nostrorum; et cum fuerit emendatum intendent nobis sicut prius fecerunt. Et quicumque voluerit de terra juret quod ad predicta omnia exequenda parebit mandatis predictorum viginti quinque baronum, et quod gravabit nos pro posse suo cum ipsis, et nos publice et libere damus licenciam jurandi cuilibet qui jurare voluerit, et nulli umquam jurare prohibebimus. Omnes autem illos de terra qui per se et sponte sua noluerint jurare viginti quinque baronibus, de distringendo et gravando nos cum eis, faciemus jurare eosdem de mandato nostro, sicut predictum est. Et si aliquis de viginti quinque baronibus decesserit, vel a terra recesserit, vel aliquo alio modo impeditus fuerit, quominus ista predicta possent exequi, qui residui fuerint de predictis viginti quinque baronibus eligant alium loco ipsius, pro arbitrio suo, qui simili modo erit juratus quo et ceteri. In omnibus autem que istis viginti quinque baronibus committuntur exequenda, si forte ipsi viginti quinque presentes fuerint, et inter se super re aliqua discordaverint, vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum habeatur et firmum quod major pars eorum qui presentes fuerint providerit, vel preceperit, ac si omnes viginti quinque in hoc consensissent; et predicti viginti quinque jurent quod omnia antedicta fideliter observabunt, et pro toto posse suo facient observari. Et nos nichil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua istarum concessionum et libertatum revocetur vel minuatur; et, si aliquid tale impetratum fuerit, irritum sit et inane et numquam eo utemur per nos nec per alium.
Since, moreover, for God and the amendment of our kingdom, and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance for ever, we give and grant to them the underwritten security, namely, that the barons choose five-and-twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault toward anyone, or shall have broken any one of the articles of the peace or of this security, and the offence be notified to four barons of the foresaid five-and-twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression corrected without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five-and-twenty barons, and those five-and-twenty barons shall, together with the community of the whole land, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us. And let whoever in the country desires it, swear to obey the orders of the said five-and twenty[five-and twenty] barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to every one who wishes to swear, and we shall never forbid anyone to swear. All those, moreover, in the land who of themselves and of their own accord are unwilling to swear to the twenty-five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. And if any one of the five-and-twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty-five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. Further, in all matters the execution of which is entrusted to these twenty-five barons, if perchance these twenty-five are present and disagree about anything, or if some of them, after being summoned, are unwilling or unable to be present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty-five had concurred in this; and the said twenty-five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. And we shall procure nothing from anyone, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such thing has been procured, let it be void and null, and we shall never use it personally or by another.
This important chapter stands by itself, providing machinery for enforcing all that precedes it. It thus forms what modern jurisprudence would describe as the “sanction” of the whole, but what was known in the current phrase of its own day as “the form of security” (forma securitatis ad observandum pacem et libertates).[[1070]] It contains the only executive clause of the Charter, the sole constitutional machinery provided for enforcing the rights now defined on parchment, the sole protection against future attempts of the king to render them of no effect.
I. The Nature of the “Security” or legal Sanction. The procedure devised for enforcing the Charter was exceedingly crude: John conferred upon twenty-five of his most bitter enemies a legal right to organize rebellion, whenever in their opinion he had broken one of the provisions of Magna Carta. Violence might be legally used against him, until he redressed their alleged grievances “to their own satisfaction” (secundum arbitrium eorum). If it had been possible to put so violent an expedient in practice, the “sovereignty,” or supreme power in England, would have been split into two for practical purposes. While the old monarchy remained theoretically intact, John would have held the sceptre, still nominally his, only until his opponents declared that he had broken some part of the Charter, when, by his own previously-granted mandate, it would pass, along with wide powers of coercion, to the twenty-five barons forming what is sometimes described as a Committee of Executors, but which was rather a Committee of Rebellion.[[1071]] Instead of using, as was afterwards done with steadily increasing success, the king’s own administrative machinery and his own servants to restrain his own misdeeds, the barons preferred to set up a rival executive of their own, with wide but ill-defined powers, and connected with the older executive by no constitutional bonds. So long as a single alleged grievance remained unredressed, a new administration composed of John’s political antagonists existed in an attitude of, at best, armed neutrality, side by side with King John as the representative of the older system of monarchic administration.
The procedure for redressing grievances was described in some detail; the wronged party must make known his case to four barons of the twenty-five, and these would then personally make it known to the king, and ask redress. John was allowed time to effect this, but if he refused or delayed, then compulsion might be used. The Articles of the Barons had left the maximum term of delay unspecified, merely saying “within a reasonable time to be determined in the Charter.” The Charter did determine this, naming forty days. Compulsion might take any form (for example seizure of castles, lands, and personal estate), except violence against the person of the king, or against his wife or children. The present chapter, then, contained the only legal sanction mentioned in the Charter, and this may be briefly summarized as the delegation by John to a revolutionary committee of the baronial opposition, of wide powers of coercion to be used against him.
II. Minor Details of the Scheme. Although the whole expedient seems utterly chimerical to the modern mind, the opposition leaders in 1215 evidently thought they had devised a practicable scheme of government. This is shown by the care with which they elaborated the procedure to be adopted at different stages and in various contingencies.
(1) Appointment of the twenty-five executors. The members of the committee were to be, in the first instance, “elected” (a loose word already discussed) by the “barons.” The majores barones of chapter 14 would undoubtedly have the controlling voice; but the minores barones might possibly have taken some share in the appointment. Vacancies which occurred through death, absence from England, or any other cause, were to be filled by the method now known as “co-optation.” The committee, once appointed, would form a close corporation; no one uncongenial to the majority could gain admission—an arrangement with a thoroughly oligarchic flavour. The provision for supplying vacancies caused by death proves that the scheme was not to be temporary, but to last during John’s lifetime or longer. Twenty-five magnates seem to have been actually selected. The writs issued to the Sheriffs on 19th June command the enforcement of the oath to the twenty-five barons, but do not mention them by name. Matthew Paris supplies the omission, and though he does not disclose the source of his information, it is unlikely that so comprehensive a list could be entirely a work of the imagination.[[1072]] They occur in the following order, the earls of Hertford, Aumâle, Gloucester, Winchester, Hereford, Norfolk, and Oxford, William Marshall the younger, Robert fitz Walter the elder, Gilbert de Clare, Eustace de Vesci, Hugh Bigod, William of Mowbray, William Hardell (Mayor of London), William de Lanvalei, Robert de Ros, John de Lacy (Constable of Chester), Richard de Perci, John fitz Robert, William Mallet, Geoffrey de Say, Roger de Mumbezon, William of Huntingfield, Richard de Muntfitchet, and William of Albini.[[1073]] There are here no churchmen and no members of the moderate party whose names appear in the preamble. All except two, or at the most three, of the twenty-five were drawn from those factions of the baronage who were the declared enemies of John.[[1074]] It was an oligarchy of disaffected Crown tenants, whose baronial homogeneity was only broken by the presence of one representative of other classes, the Mayor of London. Such a committee was not likely to use the excessive powers delegated to it by John to further any other interests than its own. Even Stephen Langton and his fellow-prelates were soon to discover this, as the two protests issued by them clearly prove.