Magna Carta: A Commentary on the Great Charter of King John / With an Historical Introduction

by William Sharp McKechnie

Knightswood, Elderslie,

Renfrewshire, 6th February, 1905

CONTENTS

HISTORICAL INTRODUCTION.
Part I. Events leading to Magna Carta:
			PAGE
	I.	William I. to Henry II.: Main Problem, the Monarchy,	[1]
	II.	William I. to Henry II.: Problem of Local Government,	[16]
	III.	William I. to Henry II.: Problem of Church and State,	[20]
	IV.	Richard I. and John,	[23]
	V.	The Years of Crisis,	[33]
	VI.	Runnymede, and after,	[43]
Part II. Feudal Grievances and Magna Carta:
	I.	The Immediate Causes of the Crisis,	[58]
	II.	The Crown and Feudal Obligations,	[64]
	III.	Royal Justice and Feudal Justice,	[93]
Part III. Magna Carta: Its Form and Contents:
	I.	Its Prototypes: Earlier Charters,	[113]
	II.	Magna Carta: Its Form and Juridical Nature,	[123]
	III.	Magna Carta: Its Contents and Characteristics,	[129]
	IV.	Magna Carta: An Estimate of its Value,	[144]
	V.	Magna Carta: Its Defects,	[150]
	VI.	Magna Carta: Value of Traditional Interpretations,	[154]
	VII.	Magna Carta: Its Traditional Relation to Trial by Jury,	[158]
Part IV. Historical Sequel to Magna Carta:
	I.	Reissues and Confirmations of the Great Charter,	[164]
	II.	Magna Carta and the Reforms of Edward I.,	[186]
Part V. Magna Carta; Original Versions, Printed Editions, and Commentaries:
	I.	Manuscripts of Magna Carta and Relative Documents,	[194]
	II.	Previous Editions and Commentaries,	[205]
MAGNA CARTA:
TEXT, TRANSLATION, COMMENTARY.
PREAMBLE.
	I. The King’s Title. II. The names of the consenting Nobles. III. The Reasons of the Grant,		[215]
CHAPTER ONE.
	I. The Rights of the National Church: (1) Quod Anglicana ecclesia libera sit; (2) Canonical Election. II. Civil and Political Rights,		[222]
CHAPTER TWO.
	I. Assessment of Reliefs. II. Units of Assessment: (1) Feodum militis integrum; (2) Baronia integra; (3) Baronia comitis integra. III. Liability of Church Property to Reliefs,		[229]
CHAPTER THREE.
	No Relief after Wardship,		[239]
CHAPTER FOUR.
	Wardship: (1) The Definition of Waste; (2) The Punishment of Wasteful Guardians; (3) Provision against Recurrence,		[241]
CHAPTER FIVE.
	I. The Obligations of the Warden of a Lay-fief. II. Wardship over Vacant Sees,		[246]
CHAPTER SIX.
	The Marriage of Wards,		[250]
CHAPTER SEVEN.
	I. The Widow’s Share of Real Estate: (1) Dower; (2) Maritagium; (3) Hereditas. II. Her Share of Personal Estate. III. Provision for her Immediate Needs: (1) Quarantine; (2) Estovers of Common,		[253]
CHAPTER EIGHT.
	Marriage of Widows,		[260]
CHAPTER NINE.
	Procedure for Enforcing Payment of Debts,		[261]
CHAPTER TEN.
	Usury. I. The History of the Jews in England. II. Legal Position of the Jews,		[265]
CHAPTER ELEVEN.
	Widows and Children of Debtors to be Protected against Creditors,		[273]
CHAPTER TWELVE.
	I. Protection of Crown Tenants from Arbitrary Exactions: (1) Scutage; (2) Feudal Aids. II. Protection of Citizens of London: Aids and Tallages. III. Magna Carta and the Theory of Parliamentary Taxation,		[274]
CHAPTER THIRTEEN.
	Liberties and Free Customs of London,		[284]
CHAPTER FOURTEEN.
	Method of obtaining the Common Council of the Kingdom. I. Nature of the Summons. II. Composition of the Council. III. Position of the “Minor Barons.” IV. Representation. V. Powers and Functions of the Council. VI. Rights of Majorities and Minorities,		[291]
CHAPTER FIFTEEN.
	Restrictions on Mesne Lords taking Aids. I. Points of difference between tenants-in-chief and under-tenants. II. The influence of Magna Carta upon later practice,		[301]
CHAPTER SIXTEEN.
	No one to perform greater service for a tenement than is due,		[306]
CHAPTER SEVENTEEN.
	Common Pleas. I. The Curia Regis as a Court of Law. II. Common Pleas and Royal Pleas. III. Effects of Magna Carta on the Genesis of the three Courts of Common Law. IV. Evolution of the Court of Common Pleas. V. Erroneous Views,		[308]
CHAPTER EIGHTEEN.
	Petty Assizes. I. The Curia Regis and the Travelling Justices. II. The Nature and Origin of the three Petty Assizes. III. The Assizes in 1215. IV. An Erroneous View. V. Later History of the Justices of Assize,		[317]
CHAPTER NINETEEN.
	Procedure at Petty Assizes,		[331]
CHAPTER TWENTY.
	Amercement. I. Three Stages of Criminal Law: (1) The blood-feud; (2) Fixed money-payments; (3) Amercements. II. Magna Carta and Amercements: (1) Of the Freeholder; (2) Of the Merchant; (3) Of the Villein; (4) Fines and Amercements; (5) Contenement,		[334]
CHAPTER TWENTY-ONE.
	Amercement of Earls and Barons,		[346]
CHAPTER TWENTY-TWO.
	Amercement of the Clergy,		[349]
CHAPTER TWENTY-THREE.
	I. Origin of the Obligation to make Bridges. II. The King’s Rights of Falconry. III. Erroneous Interpretations,		[352]
CHAPTER TWENTY-FOUR.
	I. Pleas of the Crown. II. Keeping and Trying Criminal Pleas. III. The Intention of Magna Carta. IV. An Erroneous View. V. Local Magistrates under John: (1) The Sheriff; (2) The Constable; (3) The Coroner; (4) The Bailiff,		[358]
CHAPTER TWENTY-FIVE.
	Farms of Counties and Hundreds,		[372]
CHAPTER TWENTY-SIX.
	Crown Debtors. I. Nature of the Grievance. II. The Right to Bequeath,		[376]
CHAPTER TWENTY-SEVEN.
	Intestate Succession,		[382]
CHAPTER TWENTY-EIGHT.
	I. Purveyance in General. II. Branches of it restricted by Magna Carta. III. Its other Branches,		[385]
CHAPTER TWENTY-NINE.
	Castle-Guard,		[390]
CHAPTER THIRTY.
	Purveyance of Horses and Carts,		[392]
CHAPTER THIRTY-ONE.
	Purveyance of Timber,		[393]
CHAPTER THIRTY-TWO.
	I. The Crown’s Claim to Felons’ Property: (1) Lands; (2) Chattels. II. Indictment, Conviction, and Attainder,		[394]
CHAPTER THIRTY-THREE.
	Obstructions to be removed from Rivers,		[402]
CHAPTER THIRTY-FOUR.
	The Writ “Praecipe.” I. Royal Writs and the Feudal Jurisdictions. II. Influence of this provision on later legal Development,		[405]
CHAPTER THIRTY-FIVE.
	Standards of Weights and Measures,		[414]
CHAPTER THIRTY-SIX.
	Writ de Odio et Atia. I. Trial by Combat prior to John’s Reign. II. The Writ of Life and Limbs. III. Its Subsidiary Uses. IV. Later History of Appeal and Battle,		[417]
CHAPTER THIRTY-SEVEN.
	Prerogative Wardship,		[427]
CHAPTER THIRTY-EIGHT.
	No Bailiff to put anyone to his “law” without Witnesses. I. Probable Object of this Chapter. II. Medieval Interpretations. III. Modern Interpretations,		[430]
CHAPTER THIRTY-NINE.
	I. Its Main Object: (1) Judgment must precede Execution; (2) Per judicium parium; (3) Per legem terrae; (4) Meaning of "vel." II. The scope of the Protection afforded. III. What classes of men enjoyed it. IV. Reactionary Aspects. V. The Genesis of this Chapter. VI. Later History of "Judgment of Peers." VII. Erroneous Interpretations,		[436]
CHAPTER FORTY.
	Justice not to be Sold, Refused, or Delayed,		[459]
CHAPTER FORTY-ONE.
	Freedom of Trade. I. Magna Carta favours Alien Merchants. II. Customs and Tolls. III. The Motives prompting this Chapter. IV. English Boroughs and Merchant Strangers,		[463]
CHAPTER FORTY-TWO.
	Liberty to leave the Kingdom—Writs ne exeat regno,		[473]
CHAPTER FORTY-THREE.
	Tenants of Escheated Baronies,		[478]
CHAPTER FORTY-FOUR.
	I. The Royal Forests. II. Their Origin. III. Forest Officials. IV. Forest Courts. V. Chases, Parks, and Warrens. VI. Forest Rights and Forest Grievances. VII. Later History of Forests and Forest Laws,		[482]
CHAPTER FORTY-FIVE.
	Justices, Castellans, Sheriffs, and Bailiffs to be law-abiding men,		[502]
CHAPTER FORTY-SIX.
	Wardship over Vacant Abbeys,		[505]
CHAPTER FORTY-SEVEN.
	Forests and River-banks encroached upon by John,		[507]
CHAPTER FORTY-EIGHT.
	Procedure for abolishing Evil Customs of Forests and elsewhere,		[511]
CHAPTER FORTY-NINE.
	Hostages and Charters to be restored,		[514]
CHAPTER FIFTY.
	List of those excluded from offices of trust in future,		[518]
CHAPTER FIFTY-ONE.
	Expulsion of Foreign Mercenaries,		[522]
CHAPTER FIFTY-TWO.
	Procedure for redressing wrongful Disseisins,		[523]
CHAPTER FIFTY-THREE.
	A Crusader’s Respite allowed to John,		[525]
CHAPTER FIFTY-FOUR.
	Right of Appeal by Women,		[527]
CHAPTER FIFTY-FIVE.
	Remission of Unjust Fines and Amercements,		[530]
CHAPTER FIFTY-SIX.
	Redress for Welshmen wrongfully disseised by John,		[533]
CHAPTER FIFTY-SEVEN.
	Redress for Welshmen wrongfully disseised by Henry II. or Richard I.,		[534]
CHAPTER FIFTY-EIGHT.
	Welsh Hostages and Charters to be restored,		[536]
CHAPTER FIFTY-NINE.
	Justice to be done to Alexander, King of Scots; Relations of England and Scotland,		[537]
CHAPTER SIXTY.
	Extension of Provisions of Charter to Tenants of Mesne Lords,		[543]
CHAPTER SIXTY-ONE.
	The Forma Securitatis or Legal Sanction of the Charter. I. Nature of the Security. II. Minor Details of the Scheme: (1) Twenty-five Executors; (2) A quorum may act; (3) Sub-committee of four; (4) Local Agents; (5) The Co-operation of the Public. III. Criticism of the Scheme. IV. Dr. Gneist’s Opinion. V. Failure of the Scheme,		[545]
CHAPTER SIXTY-TWO.
	Prelates to issue Letters Testimonial,		[562]
CHAPTER SIXTY-THREE.
	Formal Clauses,		[563]

APPENDIX.
Documents Relative to, or Illustrative of, John’s Magna Carta:
	I.	The Charter of Liberties of Henry I. (1100),	[565]
	II.	The Second or Oxford Charter of Stephen (1136),	[567]
	III.	Charter of Henry II. (circa 1154),	[568]
	IV.	The so-called “Unknown Charter of Liberties,”	[569]
	V.	The Articles of the Barons (1215),	[570]
	VI.	Writs Supplementary of John’s Great Charter,	[576]
	VII.	The Great Charter of Henry III. (Second Re-issue, 6th November, 1217),	[580]
	VIII.	Carta de Foresta,	[586]
Select Bibliography and List of Authorities referred to,			[590]
Index to Statutes,			[597]
General Index			[599]

HISTORICAL INTRODUCTION.

PART I.
EVENTS LEADING TO MAGNA CARTA.

The Great Charter is too often treated as the outcome of purely accidental causes. Students of its origin are sometimes content to explain it as a mere tangible product of the successful resistance called forth by the tyrannies of King John. That monarch’s personal misdeeds, it is maintained, goaded into determined action a fierce unflinching opposition which never rested until it had achieved success; and the outcome of this success was the winning of the Great Charter of Liberties. The moving causes of events of such tremendous moment are thus sought in the characteristics and vices of one man. If John had never lived and sinned, so it would appear, the foundations of English freedom would never have been laid.

Such shallow views of history unnecessarily belittle the magnitude and inevitable nature of the sequence of causes and effects upon which great issues really depend. The compelling logic of events forces a way for its own fulfilment, independent of the caprices, aims and ambitions of individual men. The incidents of John’s career are the occasions, not the causes, of the great national movement which laid the foundations of English liberties. The origin of Magna Carta lies too deep to be determined by any purely contingent or accidental phenomena. It is as unwise as it is unnecessary to suppose that the course of constitutional development in England was suddenly and violently wrested into a completely new channel, merely because of the incapacity or misdeeds of the temporary occupant of the throne. The source of the discontent fanned to flame by John’s oppressions must be sought in earlier reigns. The genesis of the Charter cannot be understood apart from its historical antecedents, and these are inextricably bound up with the whole story how England grew to be a nation.

In expounding the origin of the Charter, it is necessary briefly to narrate how the scattered Anglo-Saxon and Danish tribes and territories, originally unconnected, were gradually welded together and grew into England; how this fusion was made permanent by the growth of a strong form of centralized monarchical government which crushed out all attempts at local independence, and threatened to become the most absolute despotism in Europe; and how, finally, the Crown, because of the very plenitude of its power, challenged opposition and called into play forces which set limits to royal prerogatives and royal aggressions, and at the same time laid the foundations of the reign of law. A short survey of the early history of England forms a necessary preliminary to a right understanding of Magna Carta. Such a survey makes prominent two leading movements, one of which succeeds the other; namely, the establishment of a strong monarchy able to bring order out of anarchy, and the subsequent establishment of safeguards to prevent this source of order degenerating into an unrestrained tyranny, and so crushing out not merely anarchy but legitimate freedom as well. The later movement, in favour of liberty and the Great Charter, was the natural complement, and, in part, the consequence of the earlier movement in the direction of a strong government able to enforce peace. In historical sequence, order precedes freedom.