The substitution of this definite stipulation of a return to the well-known usage of Henry II. in place of the discarded chapters 12 and 14 of John’s Charter (which made “common consent” necessary for all scutages, whatever the rate) was a natural compromise; and the barons in agreeing to it were probably quite justified in thinking, from their own medieval point of view, that they were neither submitting to any unfair abridgments of their rights, nor yet countenancing any reactionary measures hurtful to the growth of constitutional liberty.[[253]] Yet when this alteration is viewed by modern eyes in the light cast by the intervening centuries of constitutional progress, and when it is remembered that the new clause formed the chief part of the concessions made in 1217 to baronial claims, the conclusion inevitably suggests itself that the new agreement is the proof of retrograde tendencies successfully at work. All mention of the Commune Concilium—that predecessor of the modern Parliament, that germ of all that has made England famous in the realm of constitutional laws and liberties—disappears, apparently without protest or regret. If the control of taxation by a national assembly, if the conception of representation, if the indissoluble connection of these two principles with each other, ever really found a place in Magna Carta, they were contemptuously ejected from it in 1216, and failed to find a champion in 1217 to demand their restoration.
A modern statesman, with any knowledge of the value of constitutional principles, would have gladly seized the occasion of the revision of the terms of the Charter, to assert and define the functions and rights of the Great Council with precision and with emphasis. He would not lightly have thrown away the acknowledgment implied in chapters 12 and 14 of 1215—in the germ, at least—of the right of a national council to exercise a legal control over the levying of taxes. The magnates on both sides in 1217 were content, however, to abandon to their fate all abstract principles of constitutional development, provided they could protect their lands and purses from an immediate increase of taxation. Far-reaching problems of the composition and privileges of Parliament were unhesitatingly surrendered, as soon as another method of defence against arbitrary increase of scutage was suggested. The barons were selling, not indeed their birthright, but their best means of gaining new rights from the Crown, for “a mess of pottage.”
Such considerations, however, must not be pressed too far. It should not be forgotten that no one seriously thought in 1217, any more than in 1216, of dispensing with future meetings of the feudal tenants in Commune Concilium. Great Councils indeed continued to meet with increasing frequency throughout the reign of Henry III., and the consent of the magnates therein assembled was habitually asked to scutages even at a lower rate than that which had been normal in Henry II.’s reign. Sometimes such consent was given unconditionally; sometimes in return for a new confirmation of the cherished Charters; sometimes, even, it was met by an absolute refusal—the first distinct instance of which seems to have occurred in January, 1242.[[254]]
Another set of provisions which the respiting clause of 1216 had promised to reconsider was amply restored in the terms of a separate Forest Charter. This took the place not only of certain chapters of the original grant of 1215 omitted in 1216, but also of chapters 36 and 38 of the grant of 1216. Nothing was, however, done to restore other important omissions, namely, those relating to the Jews, to intestate succession, to free ingress to and egress from England. On the other hand, additional provisions, not promised in the respiting clause, were directed against various abuses of the Crown’s feudal and other prerogatives.[[255]]
So far the Charter of 1217, with its restorations and additions, may be regarded as a politic effort to secure the support of the barons by satisfying their reasonable demands; but it may also be viewed in three other aspects: (1) as containing provisions for suppressing the anarchy still prevalent in several districts, a legacy from the civil war; (2) as amending some few details of the original grant which the experience of two years had shown to be defective or objectionable; and (3) as making a first attempt to solve certain problems of government which had come quite recently to the foreground, but which were not successfully grappled with until three-quarters of a century later, when the legislative genius of Edward Plantagenet was brought to bear upon them.
Among the chapters restoring order, the most important, with the exception of those recasting the machinery of administration, was that which ordered the destruction of the “adulterine” castles,[[256]] that is, the private strongholds built by barons without the licence of the Crown. These remained in 1217, as they had remained in 1154, a result of past civil war, and a menace to peace and good government in the future. It was the aim of every efficient ruler to abolish all fortified castles—practically impregnable in the thirteenth century when artillery was unknown—except those of the King, and to see that the royal castles were under command of “constables”[[257]] of approved loyalty. John had placed his own strongholds under creatures of his own, who, after his death, refused to give them up to his son’s Regent. The attempt to dislodge these soldiers of fortune, two years later, led to new disturbances in which the famous Falkes de Breauté played a leading part.[[258]] The destruction of “adulterine” castles and the resumption of royal ones were both necessary accompaniments of any real pacification.
The re-issue of 1217 may also be regarded as bearing some analogy to a modern amending Statute. Experience, for example, had suggested the desirability of several alterations in the procedure for holding petty assizes. Many objections had been taken to the dispatch of Justices, with commissions to hold assizes in the various counties, so frequently as four times every year. It was now agreed to reduce these circuits from once a quarter to once a year—a concession to those who felt the burden of too frequent attendance.[[259]] Although the king’s Justices were still to enjoy the co-operation of knights from each county, it was no longer specially mentioned that these knights should be elected. All pleas of darrein presentment were removed from the jurisdiction of the Justices on circuit, and reserved for the consideration of “the Bench,” presumably now settled at Westminster.[[260]] The two other assizes (novel disseisin and mort d’ancestor) were still left to the king’s Justices in the respective counties where the lands lay, but difficult points of law were reserved for “the Bench.”[[261]] The inferiority of the Justices of Assize to the Courts at Westminster was thus made clear.
The same natural reluctance of those who owed suit to the local courts, to neglect their own affairs in order to perform public duties, which led to the demand for less frequent visits of the Justices of Assize, led also to an emphatic restatement of the old customary rules as to attendance at County Courts. Ordinary sessions were not to be held more frequently than once a month, nor was the sheriff to make his Tourn, or local circuit, throughout the various hundreds of his county more frequently than twice a year, namely at Easter and Michaelmas: and only at Michaelmas was he to hold view of frankpledge—one of the most important functions performed by him in the course of his circuit.[[262]] It was a more distinct concession to the feudal anti-centralizing spirit, that this royal view of frankpledge—for the sheriff acted as the king’s deputy—was prohibited from infringing any freeman’s franchises, whether such franchises had existed under Henry II. or had been subsequently acquired.[[263]]
Two questions, destined to become of supreme importance in the future, have also left traces on this re-issue of the Charter:—on chapters 39 and 43 respectively. The former treats of the vexed question of a feudal tenant’s right to dispose of parts of his holding by gift or sale. There were two different methods of effecting this—by way of subinfeudation or by way of substitution: the tenant might create a new link in the feudal chain by granting part of his lands to a third party, who became his vassal as a result of the new grant; or he might endeavour to make the donee the direct vassal of his overlord, quoad the land he had newly acquired. There was here a direct conflict of interest between overlord and tenant, which extended to both ways of conveying land. Freedom to sell it or give it away was clearly an advantage to the tenant; while the lord objected to a transaction which might thrust on him new vassals he did not desire, or might divide between two or more vassals the obligations formerly incumbent on one, making the incidence of feudal burdens uncertain and their enforcement more difficult. Chapter 39 contained a compromise. The tenant might part with a portion of his holding, provided the balance he reserved was sufficient to ensure full performance by himself of the obligations due to the lord. The original vassal thus remained primarily liable for the whole of the feudal obligations (whatever right of relief he might have against his donees or sub-tenants), and must reserve in his own hands sufficient lands out of the proceeds of which to fulfil them. The final solution of the problem, here temporarily disposed of, was contained in the Statute commonly known as Quia Emptores,[[264]] which allowed the tenant to dispose of parts of his estate by way of substitution, while forbidding subinfeudation entirely.
Chapter 43 marks the growing hostility against the accumulation by the monasteries of wealth in the form of landed estates, and begins the series of legislative measures which culminated in the Statute of Mortmain.[[265]] The times were not ripe in 1217 for a final solution of this problem, and the charter of that year contented itself with an attempt to remedy one of the subsidiary abuses of the system merely, and not to abolish the main evil. An ingenious expedient had been devised by lawyers to enable tenants to cheat their lords out of some of the lawful feudal incidents. Religious houses formed one species of corporation, and all corporations made bad tenants, since, as they never died, the lord of the fief was deprived of the possibility of a wardship, relief, or escheat falling to him. This was a hardship; but it was not unfair, provided that the transaction which made the abbey or monastery owner of the subjects was a bona fide one. Sometimes, however, more or less collusive agreements were made between a lay free-holder and a religious house whereby a new link was inserted in the feudal chain to the prejudice of the freeholder’s lord. The freeholder bestowed his lands on a particular house, which took his place as the new tenant of the lord and then subinfeudated the same subjects to the original tenant, who thus got his lands back again, but now became tenant of the church, not of his former lord. The lord was thus left with a corporation for his tenant and lost all the profitable incidents, which would, under the new arrangement, accrue to the church when the freeholder died. Such expedients were prohibited, under pain of forfeiture, by chapter 43 of the re-issue of 1217; and this prohibition was interpreted very liberally by the lords in their own favour.[[266]]