(3) A great number of provisions of purely temporary interest naturally disappeared, among them those providing for the disbandment of mercenary troops and the dismissal from office of obnoxious individuals. Of more importance was the omission of all reference to the device adopted for enforcing the original Charter by means of the baronial committee of twenty-five Executors.
(4) A number of minor omissions of a miscellaneous nature may be grouped together; for example, chapter 27, providing that the chattels of every freeman who died intestate should be divided under the supervision of the Church; chapter 41, granting freedom to leave the kingdom, and return, without the king’s consent; chapter 45, by which the Crown restricted itself in the choice of justiciars and other officers; and the latter half of chapter 47, relating to the banks of rivers and their guardians.[[241]]
(5) These various alterations implied, incidentally rather than deliberately, the omission of all mention of such constitutional machinery as had found a place in the words of John’s Great Charter. The twenty-five Executors fell with the other temporary provisions; while chapter 14, which defined the composition and mode of summons of the Commune Concilium, was omitted as a matter of course, along with chapter 12, to which it had merely formed a supplement. It was apparently thought unnecessary to make any mention of the Council, and this attitude may be explained partly on the ground that the framers of the new deed took for granted its continued existence in the future as in the past, and partly by the consideration that its vital importance as a constitutional safeguard had not yet been realized. Chapter 14 of 1215, to which much importance is invariably attached by modern writers, probably held quite a subordinate place in the minds of its framers and was abandoned altogether in 1216, never to be replaced.[[242]]
However natural may be the explanation, the fact is no less notable that the only clauses of the original Charter which partook of a constitutional character entirely disappeared from all of its re-issues. Magna Carta as granted by Henry is purely concerned with matters which lie within the sphere of private law, and contains no attempt to devise machinery of government or to construct constitutional safeguards for the protection of national liberties. The circumstances of the King’s minority, perhaps, implied a constitutional check on the monarchy in the necessary existence of guardians, but when Henry III. attained majority, Magna Carta, deprived of its original sanctions, would, with the disappearance of the Regency, tend to become an empty record of royal promises. The entire machinery of government remained exclusively monarchic; the king, once out of leading-strings, would be restrained only by his own sense of honour and by the fear of armed resistance—by moral forces neither legal nor constitutional. The logical outcome, under the ripening process of time, was the Barons’ War.
The importance of the omissions is considerably minimized, however, by two considerations. (a) Many of the original provisions were merely declaratory, and their omission in 1216 by no means implied that they were then abolished. The common law remained what it had been previously, although it was not considered necessary to specify those particular parts of it in black and white. In particular, throughout the entire reign of Henry, the Commune Concilium frequently met, and was always, in practice, consulted before a levy was made of any scutage or aid. (b) It is clearly stated in the new charter that the advisability of replacing these omitted clauses was reserved for further consideration at some more opportune occasion. In the so-called “respiting clause” (chapter 42) six topics were specially named as thus reserved because of their “grave and doubtful” import: the levying of scutages and aids, the debts of the Jews, the liberty of going from and returning to England, the forest laws, the “farms” of counties, and the customs relating to banks of rivers and their guardians. This respiting clause amounts to a definite engagement by the King to take into serious consideration at some future time (probably as soon as peace had been restored) how far it would be possible to re-insert the omitted provisions in a new charter. This promise was partially fulfilled a year later.[[243]]
A practical difficulty confronted the advisers of the young King as to the execution of the Charter. No instance of a Regency had occurred since seals came into general use; and, therefore, neither law nor custom afforded precedents for the execution of documents during a king’s minority. The seal of a king, like that of any ordinary magnate, was personal to him, and not available for his heir. The custom indeed was to destroy the matrix when a death occurred, and thus to prevent its being put to improper uses. John’s great seal could no longer be used,[[244]] and the advisers of Henry III. shrank from the responsibility of making a new one for the infant monarch. Yet no charter would be binding unless executed with all the recognized formalities. In these circumstances it was resolved to authenticate the new Charter by impressing on it the seals of the papal legate and of the Regent. Henry was made to explain that, in the absence of a seal of his own, the Charter had been sealed with the seals of Cardinal Gualo and of William Marshal, Earl of Pembroke, “rectoris nostri et regni nostri.”
The issue of the new Charter was not immediately successful in bringing the civil war to an end; but a stream of waverers flowed from Louis to Henry, influenced partly by the success of the national faction in the field and partly by the moderate policy of the government typified by the re-issue of the Charter. On 19th May, 1217, the royalists gained a decisive victory at the battle known as the “Fair of Lincoln”; and, on 24th August following, Hubert de Burgh, the Justiciar, destroyed the fleet on which Louis depended. The French prince was compelled to sue for peace. Although negotiations were somewhat protracted, the resulting Treaty of Lambeth bears date the 11th September, 1217, the day on which they opened.[[245]] Several interviews took place at Lambeth between 11th and 13th September, and these were followed by a general conference at Merton, commencing on the 23rd, at which Gualo, Louis, the Regent, and many English nobles were present.[[246]] Some difference of opinion exists as to the exact stages of these negotiations,[[247]] and it seems best to treat as one whole the settlement ultimately arranged. “The treaty of Lambeth is, in practical importance, scarcely inferior to the charter itself.”[[248]] It marked the final acceptance by the advisers of the Crown of the substance of Magna Carta as the permanent basis of government for England in time of peace, not merely as a provisional expedient in time of war. Its terms were equally honourable to both parties: to the Regent and his supporters, because of the moderation they displayed; and to Louis who, while renouncing all claim to the English Crown, did so only on condition of a full pardon to his allies, combined with the guarantee of their cause, so far at least as that was embodied in the Charter. Ten thousand marks were paid to Louis, nominally as indemnity for his expenses; but he had in return to restore the Exchequer Rolls, the charters of the Jews (that is the rolls on which copies of their starrs or mortgages had been registered),[[249]] the Charters of Liberties granted by John at Runnymede, and all other national archives in his possession. Sir William Blackstone thinks it probable that, under this clause of the treaty, the original of the Articles of the Barons was handed over, and deposited among the other archives of the Archbishop of Canterbury at Lambeth Palace where it remained until the middle of the seventeenth century.[[250]] One condition of this general pacification was of supreme importance—the promise given by the Regent and the papal legate to grant a new and revised Charter. This promise was fulfilled some six weeks later, a Charter of Liberties and a separate Forest Charter being issued on the 6th November, 1217.[[251]]
The issue of these two Charters put the copestone to the general pacification of the kingdom. After the wide-spread havoc wrought by two years of civil war, the moment had come for a definite and final declaration by the Regent of his policy for ruling an England once more at peace. Not only was he bound in honour to this course by the Treaty of Lambeth, but the opportunity was a good one for fulfilling the promise made in chapter 42 of the Charter of 1216. Accordingly the respiting clause of that document now disappeared altogether, and some new clauses took its place. The matters reserved for further discussion as “gravia et dubitabilia” had now been reconsidered and were either finally abandoned, or else accepted with more or less radical alterations. The results of these deliberations are to be found in a number of additions to the Charter of Liberties of 1217, the most important of which are chapters 44 and 46, and in the terms of a Forest Charter now granted for the first time.
Chapter 46 is a “saving clause,” reserving to archbishops, bishops, abbots, priors, templars, hospitallers, earls, barons, and all other persons, cleric and lay, the liberties and free customs which they previously had. The vagueness of this provision (a mere reference to the undefined and misty past) deprived it of all practical value. The other addition was of much greater importance.
Chapter 44 directed that scutages should be taken in the future as they had been wont to be taken in the time of Henry II. Now, the rates of scutage and the procedure for levying it in that reign had been quite specific, and could still be read among the Rolls of the Exchequer recently recovered from Prince Louis. It was thus easy to define the various innovations of John’s reign, those well-hated additional burdens which had furnished the chief motive for the civil war, and which Henry III. was now made to promise should be utterly swept away. This general condemnation probably included the increased frequency of John’s exactions, the assessment of scutages on the new basis provided by the Inquest of 1212, the levy of both scutage and service cumulatively, and, above all, the exaction of the high rate of three marks per knight’s fee. The essence of the demands pressed on the government by the baronial leaders in 1217 must undoubtedly have been the return to the normal maximum rate of 20s. per knight’s fee. Henry II., we have seen, sometimes took less, but only on one occasion took more.[[252]] This provision, it should be needless to say, did not preclude the barons individually or collectively from volunteering to contribute at a higher rate; and the necessity of such abnormal contributions would naturally be determined at meetings of the Commune Concilium.