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MAGNA CARTA

A COMMENTARY ON THE GREAT CHARTER

OF KING JOHN

PUBLISHED BY

JAMES MACLEHOSE AND SONS, GLASGOW

Publishers to the University.

MACMILLAN AND CO., LTD., LONDON.

MCMV.

MAGNA CARTA
A COMMENTARY ON THE GREAT
CHARTER OF KING JOHN

WITH AN

HISTORICAL INTRODUCTION

BY

WILLIAM SHARP McKECHNIE

M.A., LL.B., D.Phil.

LECTURER ON CONSTITUTIONAL LAW AND HISTORY IN THE UNIVERSITY OF GLASGOW AUTHOR OF ‘THE STATE AND THE INDIVIDUAL; AN INTRODUCTION TO POLITICAL SCIENCE’

GLASGOW

JAMES MACLEHOSE AND SONS

PUBLISHERS TO THE UNIVERSITY

1905

GLASGOW: PRINTED AT THE UNIVERSITY PRESS

BY ROBERT MACLEHOSE AND CO. LTD.

TO THE

MEMORY OF MY FATHER

WILLIAM McKECHNIE, M.D.

BORN 1ST APRIL, 1814

DIED 2ND SEPTEMBER, 1887

PREFACE

No Commentary upon Magna Carta has hitherto been written from the standpoint of modern research. No serious attempt has yet been made to supersede, or even adequately to supplement, the works of Coke and Richard Thomson, published respectively in 1642 and 1829, and now hopelessly out of date. This lack of enterprise may be due in part to a natural reluctance to undertake so laborious a task, but seems also to suggest tacit acquiescence in the opinion of Bishop Stubbs that no separate commentary is required, since “the whole of the constitutional history of England is little more than a commentary on Magna Carta.” Yet, for that very reason the Great Charter is surely worthy to be made the subject of special and detailed study, since few documents can compete with it in the variety and interest of its contents, in the vividness of its historical setting, or in the influence it has exercised on the struggle for constitutional liberty. That this conspicuous gap in our historical and legal literature should have remained so long unfilled is the more remarkable in view of the great advance, amounting almost to a revolution, which has been effected since Coke and Thomson wrote. Within the last twenty years, in especial, a wealth of new material has been explored with notable results. Discoveries have been made, profoundly affecting our views of every branch of law, every organ of government, and every aspect of social and individual life in medieval England. Nothing, however, has hitherto been done towards applying to the systematic elucidation of Magna Carta the new stores of knowledge thus accumulated.

With this object in view, I have endeavoured, throughout several years of hard, but congenial work, to collect, sift, and arrange the mass of evidence, drawn from many scattered sources, capable of throwing light upon John’s Great Charter. The results have now been condensed into the Commentary which fills two thirds of the present volume. This attempt to explain, point by point, the sixty-three chapters of Magna Carta, embracing, as these do, every topic—legal, political, economic and social—in which John and his barons felt a vital interest, has involved an analysis in some detail of the whole public and private life of England during the thirteenth century. The Commentary is preceded by a Historical Introduction, which describes the events leading to the crisis of 1215, analyzes the grievances which stirred the barons to revolt, discusses the contents and characteristics of the Charter, traces its connection with the subsequent course of English history, and gives some account of previous editions and commentaries.

While reference has been made throughout to original sources where these were available, advantage has been freely taken of the labours of others. If a debt of gratitude requires to be here acknowledged to previous commentators, a far deeper debt is due to many scholars who have, within recent years, by their labours in various fields not directly connected with Magna Carta, incidentally thrown light on topics of which the Charter treats. Of Bishop Stubbs it is almost unnecessary to speak, since his works form the common starting-point of all historians and constitutional lawyers of the present generation. Readers versed in modern literature will readily trace the influence of Prof. Maitland, Mr. J. Horace Round, Sir Frederic Pollock, Mr. L. O. Pike, and Prof. Prothero; while the numerous other authorities laid under contribution are referred to in the foot-notes and the appended bibliography. Frequent reference has been made to two independent and scholarly histories of the reign of John which have recently appeared—Miss Norgate’s John Lackland, and Sir James H. Ramsay’s Angevin Empire. Of the older books dealing directly with the subject in hand, Sir William Blackstone’s Great Charter has been found the best; while among modern works the Chartes of M. Charles Bémont is the most valuable. The inexhaustible stores of Madox’s History of the Exchequer have also been freely drawn upon.

While these pages were passing through the press a brilliant essay by Mr. Edward Jenks appeared in the pages of The Independent Review for November 1904, whose title The Myth of Magna Carta indicates the unconventional and iconoclastic lines on which it proceeds. He argues with much force that the Charter was the product of the selfish action of the barons pressing their own interests, and not of any disinterested or national movement; that it was not, by any means, “a great landmark in history”; and that, instead of proving a material help in England’s advance towards constitutional freedom, it was rather “a stumbling block in the path of progress,” being entirely feudal and reactionary in its intention and effects. Finally, for most of the popular misapprehensions concerning it, he holds Sir Edward Coke responsible. How far the present writer is in agreement with these opinions will appear from the following pages: but Mr. Jenks’ position would seem to require modification in at least three respects: (1) A few of the provisions of John’s Charter are by no means of a reactionary nature. (2) Coke cannot be credited with the initiation of all, or even most, of the popular fallacies which have come, in the course of centuries, to cluster so thickly round the Charter. (3) Mr. Jenks, perhaps, undervalues the importance of traditional interpretations which, even when based on insecure historical foundations, are shown in the sequel to have proved of supreme value in the battle of freedom.

I am indebted to four friends who have kindly read my proof sheets, to Mr. W. R. J. Gray, and Mr. Robert A. Moody, whose good offices in this direction are not now rendered for the first time, and to two of the members of my Honours Class of 1903-4, Mr. A. C. Black, Jun., and Mr. D. B. Mungo, all of whom have been zealous in help and fertile in suggestion.

Knightswood, Elderslie,

Renfrewshire, 6th February, 1905

CONTENTS

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.

These two problems, each forming the counterpart of the other, necessarily arise in the history of every nation, and in every age; the problem of order, or how to found a central government strong enough to suppress anarchy, and the problem of freedom, or how to set limits to an autocracy threatening to overshadow individual liberty. Neither of these problems can ever be ignored, not even in the twentieth century; although to-day the accumulated political experience of ages has enabled modern nations, such at least as are sufficiently educated in self-government, to thrust them into the background, out of view. Deep political insight may still be acknowledged in Æsop’s fable of Jupiter and the frogs. King Log proves as ineffective against foreign invasion as he is void of offence to domestic freedom; King Stork secures the triumph of his subjects in time of war, but devours them in time of peace. All nations in their early efforts to obtain an efficient government have to choose between these two types of ruler—between an executive, harmless but weak; and one powerful enough effectively to direct the business of government at home and abroad, but ready to turn the powers entrusted to him for the good of all, to his own selfish uses and the trampling out of his subjects’ liberties.

On the whole, the miseries of the long centuries of Anglo-Saxon rule were mainly the outcome of the Crown’s weakness; while, at the Norman Conquest, England escaped from the mild sceptre of inefficiency, only to fall under the cruel sceptre of selfish strength. Yet the able kings of the new dynasty, powerful as they were, had to struggle in order to maintain their supremacy; for, although the conquered English races were incapable of concerted resistance against their Norman masters, the unruly alien barons fought vigorously to shake off the royal control.

During a century of Norman rule, constant warfare was waged between two great principles—the monarchic standing on the whole for order, seeking to crush anarchy, and the oligarchic or baronial, standing on the whole for liberty, protesting against the tyranny of autocratic power. Sometimes one of these was in the ascendant; sometimes the other. The history of medieval England is the swing of the pendulum between these two extremes.

The main plot, then, of early English history, centres round the attempt to found a strong monarchy, and yet to set limits to its strength. With this main plot subordinate plots are interwoven. Chief among these must be reckoned the necessity of defining the relations of the central to the local government, and the need of an acknowledged frontier between the domains of Church and State. On the other hand, all that interesting group of problems connected with the ideal form of government, much discussed in the days of Aristotle as in our own, is notably absent, never having been forced by the logic of events upon the mind of medieval Europe. Monarchy was apparently assumed as the only possible scheme of government; while the relative merits of aristocracy and democracy, or of the much-vaunted constitution known as “mixed,” were not canvassed, since these forms of constitution were not within the sphere of practical politics.

The student of history will do well to concentrate his attention at first on the main problem, while viewing the subsidiary ones in their relations to the central current.

I. William I. to Henry II.—Main Problem: the Monarchy.

The attention of the most casual student is arrested by the consideration of the difficulties which surrounded the English nation in its early struggles for bare existence. The great problem was, first, how to get itself into being, and thereafter how to guard against the forces of disintegration, which strove without rest to tear it to pieces again. The dawn of English history shows the beginning of that long slow process of consolidation in which unconscious reason played a deeper part than human will, whereby many discordant tribes and races, many independent provinces, were crushed together into something bearing a rude likeness to a united nation. Many forces converged in achieving this result. The coercion of strong tribes over their weaker neighbours, the pressure of outside foes, the growth of a body of law, and of public opinion, the influence of religion in the direction of peace, all helped to weld a chaos of incongruous and warring elements together.

It is notable that each of the three influences, destined ultimately to aid most materially in this process of unification, threatened at one time to have a contrary effect. Thus the rivalries of the smaller kingdoms tended at first towards a complete disruption, before Wessex succeeded in asserting an undisputed supremacy; the Christianizing of England partly by Celtic missionaries from the north and partly by emissaries from Rome threatened to split the country into two, until their mutual rivalries were stilled after the Synod of Whitby in 664; and one effect of the incursion of the Danes was to create an absolute barrier between the lands that lay on either side of Watling Street, before the whole country succumbed to the unifying pressure of Cnut and his sons.

The stern discipline of foreign conquest was required to make national unity possible; and, with the restoration of the old Wessex dynasty in the person of Edward Confessor, the forces of disintegration again made headway. England threatened once more to fall to pieces, but at the critical and appointed time the iron rule of the Normans came to complete what the Danes had begun half a century earlier. As the weakness of the Anglo-Saxon kings and the disruption of the country had gone hand in hand, so the process which, after the Conquest, made England one, was identical with the process which established the throne of the new dynasty on a strong, enduring basis. The complete unification of England was the result of the Norman despotism.

Thereafter, the strength of its monarchy was what rendered England unique in medieval Europe. Three great kings in especial contributed, by their ability and indomitable power of will, to this result—William the Conqueror, Henry Beauclerk, and Henry Plantagenet. In a sense, the work of all three was the same, namely, to build up the central authority against the disintegrating effects of feudal anarchy; but the policy of each was necessarily modified by changing times and needs. The foundations of the whole were laid by the Conqueror, whose character and circumstances combined to afford him an opportunity unparalleled in history. The difficulties of his task, and the methods by which he carried it to a successful issue, are best understood in relation to the nature of the opposition he had to dread. Feudalism was the great current of the age—a tide formed by many converging streams, all flowing in the same direction, unreasoning like the blind powers of Nature, carrying away and submerging every obstacle in its path. In other parts of Europe—in Germany, France, and Italy, as in Scotland—the ablest monarchs found their thrones undermined by this feudal current. In England alone the monarchy made headway against the flood. William I. wisely refrained from any mad attempt to stay the torrent; but, while accepting it, he quietly subjected it to his own purposes. He carefully watched and modified the tendencies making for feudalism, which he found in England on his arrival, and he profoundly altered the feudal usages and rights which his followers transplanted from the Norman soil. The special expedients used by him for this purpose are well known, and are all closely connected with his crafty policy of balancing the Anglo-Saxon basis of his rule against the imported Norman superstructure, and of selecting at his own discretion such elements as suited him in either. He encouraged the adoption or intensification in England of feudalism, considered as a system of land tenure and as a system of social distinctions based on the possession of land; but he successfully endeavoured to check the evils of its unrestrained growth in its other equally important aspects, namely, as a system of local government seeking to be independent of the Crown, and as a system of jurisdiction. As a political system, it was always a subject of suspicion to William, for he viewed it in the light of his double experience in Normandy as feudal lord and feudal vassal.

William’s policy was one of balancing. His whole career in England was characteristically inaugurated by his care to support his claim to the throne on a double basis. Not content to depend merely on the right of conquest, he insisted on having his title confirmed by a body claiming to represent the old Witenagemot of England, and he further alleged that he had been formally named as successor by his kinsman, Edward Confessor, a nomination strengthened by the renunciation of Harold in his favour. Thus, to his Norman followers claiming to have set him by force of arms on his throne, William might point to the form of election by the Witan, while for his English subjects, claiming to have elected him, the presence of the foreign troops was an even more effective argument. Throughout his reign, his plan was to balance the old English laws and institutions against the new Norman ones, with himself as umpire over all. Thus he retained whatever suited him in Anglo-Saxon customs. Roger of Hoveden tells us how, in the fourth year of his reign, twelve of the subject English from each county—noble, wise, and learned in the laws—were summoned to recite on oath the old customs of the land.[^[1]] He retained, too, the old popular moots or meetings of the shire and hundred as a counterpoise to the feudal jurisdictions; the fyrd or militia of all free men as a set-off to the feudal levy; and such of the incidents of the old Anglo-Saxon tenures of land as met his requirements.

Thus the subject English, with their customs and ancient institutions, were used as expedients for modifying the excesses of feudalism. William, however, did not shrink from innovations where these suited his purpose. The great earldoms into which England had been divided, even down to the Norman Conquest, were abolished. New earldoms were indeed created, but on an entirely different basis. Even the great officers, subsequently known as Earls Palatine, always few in number, never attained either to the extent of territory or to the independence of the Anglo-Saxon ealdormen. William was chary of creating even ordinary earls, and such as he did create soon became mere holders of empty titles of honour, while they found themselves ousted from all real power by the Norman vicecomites or sheriffs. No English earl was a “count” in the continental sense (that is, a real ruler of a “county”). Further, no earl was allowed to hold too large an estate within his titular shire; and William, while compelled to reward his followers’ services with great possessions, was careful that these should be split up in widely scattered districts of his Kingdom. Thus the great feudatories were prevented from consolidating their resources against the Crown.

Various ingenious devices were used for checking the feudal excesses so prevalent on the continent. Rights of private war, coinage, and castle-building, were jealously watched and circumscribed; while private jurisdictions, although tolerated as a necessary evil, were kept within bounds. The manor was in England the normal unit of seignorial jurisdiction, and higher courts of Honours were so exceptional as to be a negligible quantity. No feudal appeal lay from the manorial court of one magnate to that of his over-lord, while, in later reigns at least, appeals were encouraged to the Curia Regis. Almost at the close of William’s reign a new encroachment upon the feudal spirit was accomplished, when the Conqueror on Salisbury Plain compelled all freeholders to take an oath of homage and fealty personally to the king.

The results of this policy have been well summarized as “a strong monarchy, a relatively weak baronage, and a homogeneous people.”

During the reign of William II. (1087-1100) the constitution made no conspicuous advance. The foundations had been laid; but Rufus was more intent on his hunting and enjoyments, than on the deeper matters of statecraft. Some minor details of feudal organization were doubtless settled and defined in these thirteen years by the King’s Treasurer, Ralph Flambard; but the extent to which he innovated on the practice of the elder William is matter of dispute. On the whole, the reign must be considered as a time of rest between two periods of advance.

Henry I. (1100-35) took up, with far-seeing statesman’s eye and much vigour, the work of consolidation. His policy shows an advance upon that of his father. William had contented himself with controlling and curbing the main vices of feudalism, while he played off against it the English native institutions. Henry went further, and introduced within the Curia Regis itself a new class of men representing a new principle of government. The great offices of state, previously held by men of baronial rank, were now filled with creatures of Henry’s own, men of humble birth, whose merit had raised them to his favour, and whose only title to power lay in his goodwill. The employment of this strictly professional class of administrators was one of the chief contributions made by Henry to the growth of the constitution. His other great achievement was the organization of the Exchequer, primarily as a source of royal revenue, but soon found useful as a means of making his will felt in every corner of England. For this great work he was fortunate to secure in Roger, Bishop of Salisbury, the help of a man who combined genius with painstaking ability. At the Exchequer, as organized by the King and his minister, the sheriff of each county twice a year, at Easter and at Michaelmas, rendered account of every payment that had passed through his hands. His balance was adjusted before all the great officers of the King’s household, who subjected his accounts to close scrutiny and criticism. Official records were drawn up, one of which—the famous Pipe Roll of 1130,—is extant at the present day. As the sums received by the sheriff affected every class of society in town and country, these half-yearly audits enabled the King’s advisers to scrutinize the lives and conduct of every one of importance in the land. These half-yearly investigations were rendered more effective by the existence at the Exchequer of a great record of every landed estate in England. With this the sheriffs’ returns could be checked and compared. Henry’s Exchequer thus found one of its most powerful weapons in the great Domesday Survey, the most enduring proof of the statesmanship of the Conqueror, by whose orders and under whose direction it had been compiled.

The central scrutiny conducted within the two chambers of the Exchequer was supplemented by occasional inspections conducted in each county. The King’s representatives, including among them usually some of the officers whose duty it was to preside over the half-yearly audit, visited, at intervals still irregular, the various shires. These Eyres, as they were called, were at first chiefly undertaken for financial purposes. The main object was to check, on the scene of their labours, the statements made at Westminster by the various sheriffs. From the first, such financial investigations necessarily involved the trial of pleas. Complaints of oppression at the hands of the local tyrant of the county were naturally made and determined on the spot; gradually, but not until a later reign, the judicial business became equally important with the financial, and ultimately even more important.

Henry at his death in 1135 seemed to have carried nearly to completion his congenial task of building a strong monarchy on the foundations laid by William I. Much of his work was, however, for a time undone, while all of it seemed in imminent danger of perishing for ever, because he left no male heir of his body to succeed him on the throne. His daughter’s claims were set aside by Stephen, the son of the Conqueror’s daughter, and a cadet of the House of Blois, to whom Henry had played the indulgent uncle, and who repaid his benefactor’s generosity by constituting himself his heir. From the first moment of his reign, Stephen proved unequal to the task of preserving the monarchy intact from the wild forces that beat around the throne. His failure is attributed by some to his personal characteristics, and by others to the defective nature of his title, combined with the presence of a rival in the field in the person of his cousin, Henry’s daughter, the ex-Empress Matilda. The nineteen years of anarchy which nominally formed his reign did nothing—and worse than nothing—to continue the work of his great ancestors. The power of the Crown was humbled, and England was almost torn in fragments by the selfish claims of rival feudal magnates to local independence.

With the accession of Henry II. (1154) the tide quickly turned, and turned for good.

Of the numerous steps taken by Henry Plantagenet to complete the work of the earlier master-builders of the English monarchy, only a few need here be mentioned. Ascending the throne in early manhood, he brought with him a statesman’s instinct peculiar to himself, together with the unconquerable energy common to his race. He rapidly overhauled every existing institution and every branch of administration. The permanent Curia Regis was not only restored to efficient working order, but was improved in each one of its many aspects—as the King’s household, as a financial bureau, as the administrative centre of the entire kingdom, and as the special vehicle of royal justice. The Exchequer, which was indeed originally merely the Curia in its financial aspect, received the re-organization so urgently needed after the terrible strains to which it had been subjected amid the quarrels of Stephen and Matilda. The Pipe Rolls were revived and various minor reforms in financial matters effected. All local courts (both the old popular courts of hundred and county, and also the feudal jurisdictions) were brought under the more effective control of the central government by various expedients. Chief among these was the restoration of the system of Eyres with their travelling justices (a natural supplement to the restoration of the Exchequer), whose visits were now placed on a more regular and systematic basis. Equally important were the King’s personal care in the selection of fit men for the duties of sheriff, the frequent punishments and removal from office of offenders, and the rigid insistence upon efficient training and uprightness in all who enjoyed places of authority under the Crown. Henry was strong enough to employ more substantial men than the novi homines of his grandfather without suffering them to be less devoted to the interests of their Prince. Yet another expedient for controlling local courts was the calling up of cases to his own central feudal Curia, or before those benches of professional judges, the future King’s Bench and Common Pleas, forming as yet merely committees of the Curia as a whole.

Closely connected with the control thus established over the local courts was the new system of procedure instituted by Henry. The chief feature was that each litigation must commence with an appropriate royal writ issued from the Chancery. Soon for each class of action was devised a special writ appropriate to itself, and the entire procedure came to be known as "the writ process"—an important system to which English jurisprudence owes both its form and the direction of its growth. Many reforms which at first sight seem connected merely with minute points of legal procedure were really fraught with immense purport to the subsequent development of English law and English liberties. A great future was reserved for certain expedients adopted by Henry for the settlement of disputes as to the possession or ownership of land, and also for certain expedients for reforming criminal justice instituted or systematized by a great ordinance, issued in 1166, known as the Assize of Clarendon.[^[2]] A striking feature of Henry’s policy was the bold manner in which he threw open the doors of his royal Courts of Law to all-comers, and provided there—always in return for hard cash, be it said—a better article in name of justice than could be procured elsewhere in England, or for that matter, elsewhere in Europe. Thus, not only was the Exchequer filled with fines and fees, but, insidiously and without the danger involved in a frontal attack, Henry sapped the strength of the great feudal magnates, and diverted the stream of litigants from the manorial courts to his own. The same policy had still another result in facilitating the growth of a body of common law, uniform throughout the length and breadth of England, and opposed to the varying usages of localities or even of individual baronial courts.

These reforms, besides influencing the current of events in England in numerous ways, both direct and indirect, all helped to strengthen the throne of Henry and his sons. Another class of reforms contributed greatly to the same result, namely, the reorganization of the army. This was effected in various ways: partly by the revival and more strict enforcement of the obligations connected with the old Anglo-Saxon fyrd or militia, under the Assize of Arms in 1181, which compelled every freeman to maintain at his own expense weapons and warlike equipment suited to his station in life; partly by the ingenious method of increasing the amount of feudal service due from Crown tenants, based upon an investigation instituted by the Crown and upon the written replies returned by the barons, known to historians as “the Cartae of 1166”; and partly by the development (not, as is usually supposed, the invention) of the principle of scutage, a means whereby unwilling military service, limited as it was by annoying restrictions as to time and place, might be exchanged at the option of the Crown for money, with which a more flexible army of mercenaries might be hired.

By these expedients, along with many others, Henry raised the English monarchy, always in the ascendant since the Conquest, to the very zenith of its power, and left to his sons the entire machinery of government in perfect working order, combining high administrative efficiency with great strength. Full of bitter strifes and troubles as his reign of thirty-five years had been, nothing had interfered with the vigour and success of the policy whereby he tightened his hold on England. Neither the long bitter struggle with Becket and the Church, ending as it did in Henry’s personal humiliation, nor the unnatural warfare with his sons, which involved the depths of personal suffering to the King and hastened his death in 1189, was allowed to interfere with his projects of reform in England.

The last twenty years of his life had been darkened for him, and proved troubled and anarchic in the extreme to his continental dominions; but in England profound peace reigned. The last serious revolt of the powers of feudal anarchy had been suppressed in 1173 with characteristic thoroughness and moderation. After that date, the English monarchy retained its supremacy almost without an effort.

II. William I. to Henry II.—Problem of Local Government.

It is necessary to leave for a time the English monarchy at its zenith, still enjoying in 1189 the powers and reputation gained for it by Henry of Anjou, and to retrace our steps, in order to consider two subsidiary problems, each of which requires separate treatment—the problem of local government, and that of the relations between Church and State. The failure of the Princes of the House of Wessex to devise adequate machinery for keeping the Danish and Anglian provinces in subjection to their will was one main source of the weakness of their monarchy. When Duke William solved this problem he took an enormous stride towards establishing his throne on a securer basis.

Every age has to face, in its own way, a group of difficulties essentially the same, although assuming such different names as Home Rule, Local Government, or Federation. Problems as to the proper nature of the local authority, the extent of the powers with which it may be safely entrusted, and its relation to the central government, require constantly to be solved. The difficulties involved, always great, were unspeakably greater in an age when practically no administrative machinery existed, and when rapid communication and serviceable roads were unknown. A lively sympathy is excited by a consideration of the almost insuperable difficulties that beset the path of King Edgar or King Ethelred, endeavouring to rule from Winchester the distant tribes of alien races inhabiting Northumbria, Mercia, and East Anglia. If such a king placed a weakling as ruler over any distant province, anarchy would result and his own authority might be endangered along with that of his inefficient representative. Yet, if he entrusted the rule of that province to too strong a man, he might find his suzerainty shaken off by a viceroy who had consolidated his position and then defied his king. Here, then, are the two horns of a dilemma, both of which are illustrated by the course of early English history. When Wessex had established some measure of authority over rival states, and was fast growing into England, the policy at first followed was simply to leave each province under its old native line of rulers, who now admitted a nominal dependence on the King who ruled at Winchester. The early West-Saxon Princes vacillated between two opposite lines of policy. Spasmodic attempts at centralization alternated with the reverse policy of local autonomy. In the days when Dunstan united the spiritual duties of the See of Canterbury to the temporal duties of chief adviser to King Edgar, the problem of local government became urgent. Dunstan’s scheme has sometimes been described as a federal or home-rule policy—as a frank surrender of the attempt to control exclusively from one centre the mixed populations of Northern and Midland England. His attempted solution was to loosen rather than to tighten further the bond; to entrust with wide powers and franchises the local viceroy or ealdorman in each district, and so to be content with a loose federal empire—a union of hearts rather than a centralized despotism founded on coercion. The dangers of such a system are the more obvious when it is remembered that each ealdorman commanded the troops of his own province.

Cnut’s policy has been the subject of much discussion, and has sometimes apparently been misunderstood. The better opinion is that, with his Danish troops behind him, he felt strong enough to reverse Dunstan’s tactics and to take a decisive step in the direction of centralization or unity. His provincial viceroys (jarls or earls, as they were now called, rather than by their old vague title of ealdormen), were appointed on an entirely new basis. England was to be mapped out into new administrative districts in the hope of obliterating the old tribal divisions. Each of these was to be placed under a viceroy having no hereditary or dynastic connection with the province he governed. In this way, Cnut sought to avert the process by which the country was slowly breaking up into a number of petty kingdoms.

If these viceroys were a source of strength to the powerful Cnut, they were a source of weakness to the saintly Confessor, who was forced to submit to the control of his provincial rulers, such as Godwin and Leofric, as each in turn gained the upper hand in the field or in the Witan. This process of disintegration continued until the coming of the Conqueror utterly changed the relations of the monarchy to every other factor in the national life.

Among the expedients adopted by the Norman Duke for reducing his feudatories in England into subjection to the Crown, one of the most important was the total abolition of the old provinces formerly governed by separate ealdormen or jarls. Leaving out of account the exceptional franchises, afterwards known as palatine earldoms, the real representative of the King in each group of counties was now the sheriff or vicecomes, not the earl. This Latin name of vicecomes is misleading, since the officer so-called in no sense represented the earl or comes, but acted as the direct agent of the Crown. The name, “viceroy,” more accurately describes his actual position and functions, since he was directly responsible to the Crown, and independent of the earl. The problem of local government, however, was not eradicated by the substitution of the sheriff for the earl as chief magistrate in the county; it only took a different form. The sheriffs themselves, when relieved from the earl’s rivalry and control, tended to become too powerful. If they never dreamed of openly defying the royal power, they at least thwarted its exercise indirectly, appropriated to their private uses items of revenue, pushed their own interests, and punished their own enemies, while acting in the name of the King. The office threatened to become territorial and hereditary,[^[3]] and its holders aimed at independence. New checks had to be devised to prevent this new local authority from again defying the central power. New safeguards were found, partly in the organization of the Exchequer and partly in the device of sending periodically on circuit itinerant justices, who took precedence of the sheriff, heard complaints against his misdeeds in his own county, and thus enabled the Crown to keep a watchful eye on its representatives. By such measures, Henry I. seemed almost to have solved these problems before his death; but his success was apparent rather than real.

The incompleteness of Henry’s solution of the difficulty became evident under Stephen, when the leading noble of each locality tried, generally with success, to capture both offices for himself; great earls like Ralph of Chester and Geoffrey of Essex compelled the King not only to confirm them as sheriffs in their own titular counties, but also to confer on them exclusive right to act as justices therein.

With the accession of Henry II. the problem was, thanks to his energy and genius, more satisfactorily solved, or at least forced once more into the background. That great ruler was strong enough to prevent the growth of the hereditary principle as applied to offices either of the Household or of local magistrates. The sheriffs were frequently changed, not only by the drastic and unique measure known as the Inquest of Sheriffs, but systematically, and as a normal expedient of administration. For the time being, the local government was kept in proper subjection to the Crown; and gradually the problem solved itself. The power of the sheriffs tended in the thirteenth century to decrease, chiefly because they found important rivals not only in the itinerant judges, but also in two new officers first heard of in the reign of Richard I., the forerunners of the modern Coroner and Justice of the Peace respectively. All fear that the sheriffs as administrative heads of districts would assert practical independence of the Crown was thus at an end. Yet each of them still remained a petty tyrant over the inhabitants of his own bailiwick. While the Crown was able and willing to avenge any direct neglect of its own interests, it was not always sufficiently alert to avenge wrongs inflicted upon its humble subjects. The problem of local government, then, was fast losing its pressing importance as regards the Crown, and taking a new form, namely, the necessity of protecting the weak from unjust fines and oppressions inflicted on them by local magistrates. The sheriff’s local power was no longer a source of weakness to the monarch, but had become an effective part of the machinery which enabled the Crown to levy with impunity its always increasing taxation.

III. William I. to Henry II.—Problem of Church and State.

The national Church had been, from an early date, in tacit alliance with the Crown. The friendly aid of a long line of statesman-prelates from Dunstan downwards had given to the Anglo-Saxon monarchy much of the little strength it possessed. Before the Conquest the connection between Church and State had been exceedingly close, so much so that no one thought of drawing a sharp dividing line between. What afterwards became two separate entities, drifting more and more into active opposition, were at first merely two aspects of one whole—a whole which comprehended all classes of the people, considered both in their spiritual and their temporal relations. Change necessarily came with the Norman Conquest, when the English Church was brought into closer contact with Rome, and with the ecclesiastical ideals prevailing on the Continent. Yet no fundamental alteration resulted; the friendly relations which bound the English prelates to the English throne remained intact, while English churchmen continued to look to Canterbury, rather than to Rome, for guidance. The Church, in William the Conqueror’s new realm, retained more of a national character than could be found in any other nation of Europe.

Gratitude to the Pope for his moral support in the work of the Conquest never modified William’s determination to allow no unwarranted papal interference in his new domains. His letter, both outspoken and courteous, in reply to papal demands is still extant. “I refuse to do fealty nor will I, because neither have I promised it, nor do I find that my predecessors did it to your predecessors.” Peter’s pence he was willing to pay at the rate recognized by his Saxon predecessors; but all encroachments would be politely repelled.

In settling the country newly reduced to his domination, the Duke of Normandy found his most valuable adviser in a former Abbot of the Norman Abbey of Bec, whom he raised to be Primate of all England. No record has come down to us of any serious dispute between William and Lanfranc.

Substantially friendly relations between their successors in the offices of King and Archbishop remained, notwithstanding Anselm’s condemnation of the evil deeds of Rufus. Anselm warmly supported that King’s authority over the Norman magnates, even while he resented his evil practices towards the Church. He contented himself with a dignified protest (made emphatic by a withdrawal of his presence from England) against the new exactions upon the English prelates, and against the long intervals during which vacancies remained unfilled. Returning at Rufus’s death from a sort of honourable banishment at Rome, to aid Henry in maintaining order and gaining peaceable accession to the throne, Anselm found himself compelled by his conscience and the recent decrees of a Lateran Council, to enter on the great struggle of the investitures. Church and State were gradually disentangling themselves from each other; but in many respects the spiritual and temporal powers were still indissolubly locked together. In particular, every bishop was a vassal of the king, holder of a Crown barony, as well as a prelate of Holy Church. By whom, then, should a bishop be appointed, by the spiritual or by the temporal power? Could he without sin perform homage for the estates of his See? Who ought to invest him with ring and crozier, the symbols of his office as a shepherd of souls? Anselm adopted one view, Henry the other. A happy compromise, suggested by the King’s statesmanship, healed the breach for the time being. The ring and crozier, as badges of spiritual authority, were to be conferred only by the Church, but each prelate must perform fealty to the King before receiving these symbols, and must do homage thereafter, but before he was actually anointed as bishop. Canonical election was nominally conceded by the King; but here again a practical check was devised for rendering this power innocuous. The members of the cathedral chapter were confirmed in the theoretic right to appoint whom they pleased, but such appointment must be made in the King’s Court or Chapel, thus affording the powerful monarch full knowledge of the proceedings, and an opportunity of being present and of practically forcing the selection of his own candidate.

The Church gained much in power during Stephen’s reign, and deserved the power it gained, since it remained the only stable centre of good government, while all other institutions crumbled around it. It was not unnatural that churchmen should advance new claims, and we find them adopting the watchword, afterwards so famous, “that the Church should be free,” a vague phrase doubtless, destined to be embodied in Magna Carta. The extent of immunity thus claimed was never clearly defined, and this vagueness was probably intentional, since an elastic phrase might be expanded to keep pace with the ever-growing pretensions of the Church. Churchmen made it clear, however, that they meant it to include at the least two principles—those rights afterwards known as “benefit of clergy,” and “canonical election” respectively.

Henry II.’s attempt to force a clear definition, embodied in the Constitutions of Clarendon in 1164, signally failed, chiefly through the miscarriage of his plans consequent on the murder of Becket. Yet the rights of the Church, although remaining theoretically unaltered from the days of Stephen, felt the pressure directed by Henry’s energetic arm against all claims of privilege. Rights, theoretically the same, shrank to smaller practical limits when measured against the strength of Henry as compared with the weakness of Stephen. Canonical election thus remained at the close of the reign of Henry II. the same farce it had been in the days of Henry I. The “election” lay with the chapter of the vacant See; but the king told them plainly whom to elect. The other rights of the Church as actually enjoyed at the close of the reign of Henry Plantagenet were not far different from what had been set down in the Constitutions of Clarendon, although these never received formal recognition by Canterbury or by Rome. So matters stood between Church and State when the throne of England was bequeathed by Henry to his sons. It remained for John’s rash provocation, followed by his quick and cowardly retreat, to compel a new definition of the frontier between the spiritual and the temporal powers.

IV. Richard I. and John.

Henry II. before his death had fulfilled the task of restoring order, to which destiny had called him. To effect this, he had brought to perfection machinery of government of rare excellence, and equally well adapted for purposes of taxation, of dispensing justice, and of general administration. Great as was the power for good of this new instrument in the hands of a wise and justice-loving king, it was equally powerful for evil in the hands of an arrogant and unjust, or even of a careless monarch. All the old enemies of the Crown had been crushed. Local government, as now systematized, formed a source of strength, not of weakness; while the Church, whose highest offices were now filled with officials trained in Henry’s own Household and Exchequer (ecclesiastics in name only, differing widely from saintly monks like Anselm), still remained the fast friend of the Crown. The monarchy was strong enough to defy any one section of the nation, and no inclination was yet apparent among the estates of the realm to make common cause against the throne.

The very thoroughness with which the Crown had surmounted all its early difficulties, induced in Henry’s successors, men born in the purple, an exaggerated feeling of security, and a tendency to overreach themselves by excessive arrogance. At the same time, the very abjectness of the various factors of the nation, now prostrate beneath the heel of the Crown, prepared them to sink their mutual suspicions and to form a tacit alliance in order to join issue with their common oppressor. Powers used moderately and on the whole for national ends by Henry, were abused for purely selfish ends by his sons in succession. Richard’s heavy taxation and contemptuous indifference to English interests gradually reconciled men’s minds to thoughts of change, and prepared the basis of a combined opposition to a power which threatened to grind all other powers to powder.

In no direction were these abuses felt so severely as in taxation. Financial machinery had been elaborated to perfection, and large additional sums could be squeezed from every class in the nation by an extra turn of the screw. Richard did not even require to incur the odium of this, since the ministers, who were his instruments, shielded him from the unpopularity of his measures, while he pursued his own good pleasure abroad in war and tournament without even condescending to visit the subjects he oppressed. Twice only, for a few months in each case, did Richard visit England during a reign of ten years.

In his absence new methods of taxation were devised, and new classes of property subjected to it; in especial, personal effects—merchandise and other chattels—only once before (in 1187 for the Saladin tithe) placed under contribution, were now made a regular source of royal revenue. The isolated precedent of Henry’s reign was gladly followed when an extraordinarily heavy burden had to be borne by the nation to produce the ransom exacted for Richard’s release from prison. The very heartiness with which England made sacrifices to succour the Monarch in his hour of need, was turned against the tax-payers. Richard showed no gratitude; and, being devoid of all kindly interest in his subjects, he argued that what had been paid once might equally well be paid again. Thus he formed exaggerated notions of the revenue to be extracted from England. From abroad he sent demand after demand to his overworked justiciars for ever-increasing sums of money. The chief lessons of the reign are connected with this excessive taxation, and the consequent discontent which prepared the way for the new grouping of political forces under John.

Some minor lessons may be noted:

(1) In Richard’s absence the odium for his exactions fell upon his ministers at home, who thus bore the burden meet for his own callous shoulders, while he enjoyed an undeserved popularity by reason of his bravery and achievements, exaggerated as these were by the halo of romance which surrounds a distant hero. Thus may be traced some dim foreshadowing of the doctrine of ministerial responsibility, although such analogies with modern politics must not be pushed too far.

(2) Throughout the reign, many parts of Henry’s system, technical details of taxation and reforms in the administration of justice, were elaborated by Archbishop Hubert Walter. Principles closely connected with trial by jury on the one hand and with election and representation on the other were being quietly developed—destined to play an important rôle in other ages.

(3) Richard is sometimes said to have inaugurated the golden age of municipalities. Undoubtedly many charters still extant bear witness to the lavish hand with which he granted, on paper at least, franchises and privileges to the nascent towns. John Richard Green finds the true interest of the reign not in the King’s Crusades and French wars, so much as in his fostering care over the growth of municipal enterprise. The importance of the consequences of such a policy is not diminished by the fact that Richard acted from sordid motives—selling privileges, too often of a purely nominal character, as he sold everything else which would fetch a price.

The death of Richard on 6th April, 1199, brought with it at least one important change; England was no longer to be governed by an absentee. John, as impatient of control as he was incompetent, endeavoured to shake himself free from the restraints of powerful ministers, and determined to conduct the work of government in his own way. The result was an abrupt end to the progress made in the previous reign towards ministerial responsibility. The odium formerly exhausting itself on the justiciars of Richard was now expended on John. While, previously, men had sought redress in a change of minister, such vain expectations could no longer deceive. A new element of bitterness was added to injuries long resented, and the nobles who felt the pinch of heavy taxation were compelled to seek redress in an entirely new direction. All the forces of discontent played openly around the throne.

As is usual at the opening of a new reign, the discontented hoped that a change of sovereign would bring some relief. The excessive taxation of the late reign had been the result of exceptional circumstances. It was expected that the new King would revert to the less burdensome scale of his father’s financial measures. Such hopes were quickly disappointed. John’s needs proved as great as Richard’s, and the money he obtained was used for purposes that appealed to no one but himself. The excessive exactions demanded both in money and in service, coupled with the unpopular uses to which these were put, form the keynote of the whole reign. They form also the background of Magna Carta.

The reign falls naturally into three periods; the years in which John waged a losing war with the King of France (1199-1206), the quarrel with the Pope (1206-13), the great struggle of John with the barons (1213-16).

The first seven years were for England comparatively uneventful, except in the gradual deepening of disgust with John and all his ways. The continental dominions were ripe for losing, and John precipitated the catastrophe by his injustice and dilatoriness. The ease with which Normandy was lost shows something more than the incapacity of the King as a ruler and leader—John Softsword as contemporary writers contemptuously call him. It shows that the feudal army of Normandy had come to regard the English Sovereign as an alien monarch, and refused to fight in support of the rule of a foreigner. The unwillingness of the English nobles to succour John actively has also its significance. The descendants of the men who helped William I. to conquer England had now lost all interest in the land from which they came. They were now purely English landowners, and very different from the original Norman baronage whose interests, like their estates, had been equally divided on both sides of the Channel.

The death of Archbishop Hubert Walter in July, 1205, deprived King John of the services of the most experienced statesman in England. It did more, for it marked the termination of the long friendship between the English Crown and the National Church. Its immediate effect was to create a vacancy, the filling of which led to a bitter quarrel with Rome.

John failed, as usual, to recognize the merits of abler men, and saw in the death of his great Justiciar and Archbishop only the removal of an unwelcome restraint, and the opening to the Crown of a desirable piece of patronage. He prepared to strain to the utmost his rights in the election of a successor to the See of Canterbury, in favour of one of his own creatures, a certain John de Grey, already by royal influence Bishop of Norwich. Unexpected opposition to his will was offered by the canons of the Cathedral Church, who determined on a bold policy, namely, to turn their nominal right of canonical election into a reality, and to appoint their own nominee, without waiting either for the King’s approval or the co-operation of the suffragan bishops of the Province, who, during the last three vacancies, had put forth a claim to participate in the election, and had invariably used their influence on behalf of the King’s nominee. Reginald, the sub-prior, was secretly elected by the monks, and hurried abroad to obtain confirmation at Rome before the appointment was made public. Reginald’s vanity prevented his keeping his pledge of secrecy, and a rumour reached the ear of John, who brought pressure to bear on the monks, now frightened at their own temerity, and secured de Grey’s appointment in a second election. The Bishop of Norwich was actually enthroned at Canterbury, and invested by the King with the temporalities of the See. All parties now sent representatives to Rome. This somewhat petty squabble benefited none of the original disputants; for the astute Innocent III. was quick to see an opportunity for papal aggrandisement. Both elections were set aside by decree of the Papal Curia, and the emissaries of the various parties were coerced or persuaded to appoint there and then in the Pope’s presence the Pope’s own nominee, a certain Cardinal, English-born, but hitherto little known in England, Stephen Langton by name, destined to play an important part in the future history of the land of his birth.

John refused to view this triumph of papal arrogance in the light of a compromise—the view diplomatically suggested by Innocent. The King, with the hot blood common to his race, and the bad judgment peculiar to himself, rushed headlong into a quarrel with Rome which he was incapable of carrying to a successful issue. The details of the struggle, the interdicts and excommunications hurled by the Pope, and John’s measures of retaliation against the unfortunate English clergy, need not be discussed, since they do not directly affect the main plot which culminated at Runnymede.

John was not without some measure of sagacity of a selfish and short-sighted sort, but was completely devoid of far-seeing statecraft. One day he was to reap the fruits of this quarrel in bitter humiliation and in the defeat of his most cherished aims; but, for the moment, the breach with Rome seemed to lead to a triumph for the King. The papal encroachments furnished him with a suitable pretext for confiscating the property of the clergy. Thus his Exchequer was amply replenished, while he was able for a time to conciliate his most inveterate opponents, the Northern barons, by remitting during several years the hated burden of a scutage, which, in other periods of his reign, tended to become a yearly imposition. John had no intention, however, to forego his right to resume the practice of annual scutages whenever it suited him to do so. On the contrary, he executed a measure intended to make them more remunerative in the future. This was the great Inquest of Service ordered on 1st June, 1212.[^[4]]

During these years, however, John temporarily relaxed the pressure on his feudal tenants. His doing so failed to gain back any of their goodwill, while he broadened the basis of future resistance by shifting his oppressions to the clergy and through them to the poor.

Some incidents of the autumn of 1212 require brief notice, as well from their own inherent interest as because they find an echo in the words of Magna Carta. Serious trouble had arisen with Wales. Llywelyn (who had married John’s natural daughter Joan, and had consolidated his power under protection of the English King) now seized the occasion to cross the border, while John was preparing his schemes for a new continental expedition. The King changed his plans, and prepared to lead his troops to Wales instead of France. A muster was summoned for September at Nottingham, and John went thither to meet them. Before tasting meat, as we are told in Roger of Wendover’s graphic narrative, he hanged twenty-eight Welsh hostages, boys of noble family, whom he held as sureties that Llywelyn would keep the peace.[^[5]]

Almost immediately thereafter, two messengers arrived simultaneously from Scotland and from Wales with unexpected tidings. John’s daughter, Joan, and the King of Scots, each independently warned him that his English barons were prepared to revolt, under shelter of the Pope’s absolution from their allegiance, and either to slay him or betray him to the Welsh. The King dared not afford them so good an opportunity. In a panic he disbanded the feudal levies; and, accompanied only by his mercenaries, moved slowly back to London.[^[6]]

Two of the barons, Robert Fitz-Walter, afterwards the Marshal of the army which, later on, opposed John at Runnymede, and Eustace de Vesci, showed their knowledge of John’s suspicions (if they did not justify them) by withdrawing secretly from his Court and taking to flight. The King caused them to be outlawed in their absence, and thereafter seized their estates and demolished their castles.[^[7]]

These events of September, 1212, rudely shook John out of the false sense of security in which he had wrapped himself a few months earlier. In the Spring of the same year, he had still seemed to enjoy the full tide of prosperity; and he must have been a bold prophet who dared to foretell, as Peter of Wakefield did foretell, the speedy downfall of the King—a prophecy the main purport of which (although not the details), was actually accomplished.[^[8]]

John’s apparent security was deceptive; he had underestimated the powers arrayed against him. Before the end of that year he had realized, in a sudden flash of illumination, that the Pope was too strong for him, circumstanced as he then was. It may well be that, if John’s throne had rested on a solid basis of his subjects’ love, he might have defied with impunity the thunders of Rome; but, although he was still an unrestrained despot, his despotism now rested on a hollow foundation. His barons, particularly the eager spirits of the north, refrained from open rebellion merely until a fit opportunity should be offered them. The papal excommunication of a King relieved his subjects of their oaths of allegiance, and this might render their deliberate revolt dangerous and perhaps fatal. At this critical juncture Innocent played his leading card, inviting the King of France to act as the executor of the sentence of excommunication against his brother King. John at once realized that the time had come to make his peace with Rome.

Perhaps we should admire the sudden inspiration which showed the King that his game had been played and lost, while we regret the humiliation of his surrender, and the former blindness which could not see a little way ahead.

On 13th May, 1213, John met Pandulf, the papal legate, and accepted unconditionally his demands, the same which he had refused contemptuously some months before. Full reparation was to be made to the Church. Stephen Langton was to be received as archbishop in all honour with his banished bishops, friends and kinsmen. All church property was to be restored, with compensation for damage done. One of the minor conditions of John’s absolution was the restoration to Eustace de Vesci and Robert Fitz-Walter of the estates which they persuaded Innocent had been forfeited because of their loyalty to Rome.[^[9]]

John’s humiliation did not stop even here. Two days later he resigned the Crowns of England and Ireland, and received them again as the Pope’s feudatory, promising to perform personal homage should occasion allow. Such was the price which the King was now ready to pay for the Pope’s active alliance against his enemies at home and abroad, the former submission having merely bought off the excommunication. John hoped thus to disentangle himself from his growing difficulties, and so to be free to avenge himself on his baronial enemies. The surrender of the Crown was embodied in a formal legal document which bears to be made by John, “with the common council of our barons.” Were these merely words of form? They may have been so when first used; yet two years later the envoys of the insurgent barons claimed at Rome that the credit (so they now represented it) for the whole transaction lay with them. Perhaps the barons did consent to the surrender, thinking that to make the Pope lord paramount of England would protect the inhabitants from the irresponsible tyranny of John; while John hoped (with better reason as events proved) that the Pope’s friendship would increase his ability to work his evil will upon his enemies. In any case, no active opposition or protest seems to have been raised by any one at the time of the surrender. This step, so repugnant to later writers, seems not to have been regarded by contemporaries as a disgrace. Matthew Paris, indeed, writing in the next generation, describes it as “a thing to be detested for all time”; but then events had ripened in Matthew’s day, and he was a keen politician rather than an impartial onlooker.[^[10]]

Stephen Langton, now assured of a welcome to the high office into which he had been thrust against John’s will, landed at Dover and was received by the King at Winchester on 20th July, 1213. John swore on the Gospels to cherish and defend Holy Church, to restore the good laws of Edward, and to render to all men their rights, repeating practically the words of the coronation oath. In addition, he promised to make reparation for all property taken from the Church or churchmen. This oath, with its accompanying promise, was the condition on which he was to be absolved, provisionally by Langton, and more formally by a legate, to be sent from Rome specially for that purpose.

V. The Years of Crisis, 1213–15.

For a brief season after John had made his peace with Rome, he seemed to enjoy substantial fruits of his diplomacy. Once more the short-sighted character of his abilities was illustrated; a brief triumph led to a deeper fall. The King for the moment considered, with some show of reason, that he had regained the mastery of his enemies at home and abroad. Philip’s threatened invasion had to be abandoned; the people renewed their allegiance on the removal of the papal sentence; the barons had to reconcile themselves as best they could, awaiting a better opportunity to rebel. If John had confined himself to home affairs, he might have postponed the final explosion: he could not, however, reconcile himself to the loss of the great continental heritage of his ancestors. His attempts to recover Normandy and Anjou, partly by force of arms and partly by a great coalition, led to new exactions and new murmurings, while they ended in complete failure, which left him, discredited and penniless, at the mercy of the malcontents at home.

His projected campaign in Poitou would require all the levies he could raise. More than once John demanded, and his barons refused, their feudal service. Many excuses were put forward. At first they declined to follow a King who had not yet been fully absolved. Yet when Archbishop Stephen, on 20th July, 1213, removed the papal censure from John at Winchester, after exacting promises of good government, the northern barons still refused. Their new plea was that the tenure on which they held their lands did not compel them to serve abroad. They added that they were already exhausted by expeditions within England.[^[11]]

John took this as open defiance, and determined, with troops at his back (per vim et arma), to compel obedience.

Before his preparations were completed, an important assembly had met at St. Albans (on 4th August) to make sworn inquest as to the extent of damage done to churchmen during the years of John’s quarrel with Rome. The meeting is notable, not merely because of the reason of its summons, but also because of its composition. It is the earliest national council in which the principle of representation received recognition (so far as our records go).[^[12]] Four lawful men, with the reeve, from each village or manor on the royal demesne, were present, but only, it must be remembered, in a very mean capacity—only to make a sworn inquest as to the amount of damage done. Such inquests by the humble representatives of the villages were quite common locally; the innovation lies in this, that their verdict was now given in a national assembly. Directions were issued in the King’s name from the same meeting, commanding sheriffs, foresters, and others to observe the laws of Henry I. and to abstain from unjust exactions, as they valued their limbs and lives.[^[13]]

On 25th August, after John had set out with his mercenaries to punish by force of arms the refusal of his northern magnates to follow him to the Continent, as he held them bound to do in terms of their feudal obligations, Stephen Langton held a meeting with the great men of the south. Many bishops, abbots, priors and deans, together with some lay magnates of the southern counties, met him at St. Paul’s, London. The ostensible object of this assembly was to determine what use the Archbishop should make of his power to grant partial relaxation of the interdict still casting its blight over England—which could not be finally lifted until the legate arrived with fuller powers. If we may believe Roger of Wendover, more important business was transacted in the King’s absence. Stephen reminded the magnates that John’s absolution had been conditional on a promise of good government, and as a standard to guide them in judging what such government implied, he produced a copy of Henry I.’s Charter of Liberties. All present swore to “fight for those liberties, if it were needful, even unto death.” The Archbishop promised his help, “and a confederacy being thus made between them, the conference was dissolved.”[^[14]]

Stephen Langton, however, desired a peaceable solution if possible, and three days later we find him, after a somewhat hurried journey, at Northampton, on the 28th of August, striving earnestly, and with success, to avert civil war between John and the recalcitrant Crown tenants in the north.

His line of argument is worthy of especial note. The King, he urged, must not levy war on his subjects before he had obtained a legal judgment against them. The substance of this advice should be compared with the terms of chapter 39 of Magna Carta. John resented the interference of Stephen in lay matters, and continued his march to Nottingham; but threats of fresh excommunications caused him at length to consent to substitute legal process for violence, and to appoint a day for the trial of the defaulters before the Curia Regis—a trial which never took place.[^[15]]

John apparently continued his journey as far north as Durham, but returned to meet the new papal legate Nicholas, to whom he performed the promised homage and repeated the formal act of surrender in St. Paul’s on 3rd October.[^[16]] Having thus completed his alliance with the Pope, he was confident of worsting his enemies in France and England. As most, if not all, of the great magnates were against him, he saw that it would be well to strengthen his position by support of the class beneath them in the feudal scheme of society. Perhaps it was this that led John to broaden the basis of the national assembly. The great Council which met at Oxford on 15th November, 1213, was made notable by the presence, in addition to the Crown tenants, of representatives of the various counties. The sheriffs, in the words of the King’s writs, were to cause to assemble all knights already summoned (that is, the Crown tenants) and four discreet men of each county “ad loquendum nobiscum de negotiis regni nostri.” Miss Norgate[^[17]] lays stress on the fact that these writs were issued after the death of the great Justiciar Geoffrey Fitz-Peter, and before any successor had been appointed. John, she argues, acted on his own initiative, and is thus entitled to the credit of being the first statesman to introduce representatives of the counties into the national assembly. The importance of this precedent need not be obscured by the selfish nature of the motives to which it was due. Knights who were tenants of mesne lords (Miss Norgate says “yeomen”) were invited to act as a counterpoise to the barons. This innovation anticipated the line of progress afterwards followed by de Montfort and Edward I. Compared with it, the often-praised provisions of chapter 14 of Magna Carta must be regarded as antiquated and even reactionary.

In the early spring of 1214, John considered his home troubles ended, and that he was now free to use against France the coalition formed by his diplomacy. He went abroad early in February, leaving Peter des Roches, the unpopular Bishop of Winchester, to keep the peace as Justiciar, and to guard his interests, in concert with the papal legate. Although deserted by the northern barons, John relied partly on his mercenaries, but chiefly on the Emperor Otto and his other powerful allies. Fortune, always fickle, favoured him at first, only to ruin all his schemes more completely in the end. The crash came on Sunday, 27th July, 1214, when the King of France triumphed over the allies at the decisive battle of Bouvines. Three months later, John was compelled to sign a five years’ truce with Philip, abandoning all pretensions to recover his continental dominions.

He had left enemies at home more dangerous than those who conquered him at Bouvines—enemies who had been watching with trembling eagerness the vicissitudes of his fortunes abroad. His earlier successes struck dismay into the malcontents in England, apprehensive of the probable sequel to his triumphant return home. They waited with anxiety, but not in idleness, the culmination of his campaign, wisely refraining from open rebellion until news reached them of his failure or success. Meanwhile, they quietly organized their programme of reform and their measures of resistance. John’s strenuous endeavours to exact money and service, while failing to fill his Exchequer as he hoped, had ripened dormant hostility into an active confederacy organized for resistance. When England learned the result of the battle, the barons felt that the moment for action had arrived.

Even while abroad, John had not relaxed his efforts to wring exactions from England. Without consent or warning, he had imposed a scutage at the unprecedented rate of three marks on the knight’s fee. Writs for its collection had been issued on 26th May, 1214, an exception being indeed allowed for tenants personally present in the King’s army in Poitou. The northern barons, who had already refused to serve in person, now refused likewise to pay the scutage. This repudiation was couched in words particularly bold and sweeping; they denied liability to follow the King not merely to Poitou, but to any part of the Continent.[^[18]]

When John returned, in the middle of October, 1214, he found himself confronted with a crisis unique in English history. During his absence, the opponents of his misrule had drawn together, formulated their grievances, and matured their plans. The embarrassments on the Continent which weakened the King, heartened the opposition. The northern barons took the lead. Their cup of wrath, which had long been filling, overflowed when the scutage of three marks was imposed. Within a fortnight of his landing, John held an interview with the malcontents at Bury St. Edmunds (on 4th November, 1214).[^[19]] No compromise was arrived at. John pressed for payment of the scutage, and the barons refused.

It seems probable that, after John’s retiral, a conference of a more private nature was held at which, under cloak of attending the Abbey for prayer, a conspiracy against John was sworn. Roger of Wendover gives a graphic account of what happened. The magnates came together “as if for prayers; but there was something else in the matter, for after they had held much secret discourse, there was brought forth in their midst the charter of King Henry I., which the same barons had received in London ... from Archbishop Stephen of Canterbury.”[^[20]] A solemn oath was taken to withdraw their fealty (a threat actually carried into effect on 5th May of the following year), and to wage war on the King, unless he granted their liberties; and a date—soon after Christmas—was fixed for making their formal demands. Meanwhile they separated to prepare for war. The King also realized that a resort to arms was imminent. While endeavouring to collect mercenaries, he tried unsuccessfully to sow dissension among his opponents. In especial, he hoped to buy off the hostility of the Church by a separate charter which he issued on 21st November. This professes to be granted “of the common consent of our barons.” Its object was to gratify the Church by turning canonical election from a sham into a reality. The election of prelates, great and small, should henceforward be really free in all cathedral and conventual churches and monasteries, saving to the Crown the right of wardship during vacancies. John promised never to deny or delay his consent to an election, and conferred powers on the electors, if he should do so, to proceed without him. The King was bitterly disappointed in his hope that by this bribe he would bring over the national Church from the barons’ side to his own.

John was probably well aware of what took place at St. Edmunds after he had left, and he also knew that the close of the year was the time fixed for the making of demands. He held what must have been an anxious Christmas at Worcester (always a favourite resting-place of this King), but tarried only for a day, hastening to the Temple, London, where the proximity of the Tower would give him a feeling of security. There, on 6th January, 1215, a deputation from the insurgents met him without disguising that their demands were backed by force. These demands, they told him, included the confirmation of the laws of King Edward, with the liberties set forth in Henry’s Charter.

On the advice of the Archbishop and the Marshal, who acted as mediators, John asked a truce till Easter, which was granted in return for the promise that he would then give reasonable satisfaction. The Archbishop, the Marshal, and the Bishop of Ely were named as the King’s securities.

On 15th January, John re-issued the Charter to the Church, and demanded a renewal of homage from all his subjects. The sheriffs in each county were instructed to administer the oath in a specially stringent form; all Englishmen must now swear to “stand by him against all men.” Meanwhile emissaries were dispatched by both sides to Rome. Eustace de Vesci, as spokesman of the malcontents, asked Innocent, as overlord of England, to compel John to restore the ancient liberties, and claimed consideration on the ground that John’s surrender to the Pope had been made under pressure put on the King by them—all to no effect. John thought to propitiate the Pope by taking the cross, a politic measure (the date of which is given by one authority as 2nd February, and by another as 4th March), which would also serve to protect him against personal violence, and which afforded him, as is well illustrated by several chapters of Magna Carta, a fertile excuse for delay in remedying abuses. In April, the northern barons, convinced that the moment for action had arrived, met in arms at Stamford, and after Easter (when the truce had expired) marched southward to Brackley, in Northampton. There they were met, on 27th April, by the Archbishop and the Marshal, as emissaries from the King, who demanded what they wanted. They received in reply, and took back with them to John, a certain schedule, which consisted for the most part of ancient laws and customs of the realm, with an added threat that if the King did not immediately adhibit his seal the rebels would constrain him by seizing his castles, lands, and goods.[^[21]]

This schedule may be regarded as a rough draft of the document more fully drawn out six weeks later, commonly known as the Articles of the Barons.[^[22]]

John’s answer, when he read these demands, was emphatic. “Why do not the barons, with these unjust exactions, ask my kingdom?” Then furious, he declared with an oath that he would never grant them such liberties, whereby he would make himself a slave.[^[23]]

On 5th May the barons formally renounced allegiance[^[24]] and chose as commander, Robert Fitz-Walter, who styled himself piously and grandiloquently, “Marshal of the army of God and Holy Church.”

The insurgents, still shivering on the brink of civil war, delayed to march southwards. Much would depend on the attitude of London, with its wealth and central position; and John bade high for the support of its citizens. On 9th May a new charter[^[25]] was granted to the Londoners, who now received a long-coveted privilege, the right to elect their mayor annually and to remove him at the year’s end. This marked the culmination of a long series of progressive grants in their favour. Previously the mayor had held office for life, and Henry Fitz-Aylwin, the earliest holder of the office (appointed perhaps in 1191), had died in 1213.

Apparently no price was paid for this charter; but John doubtless expected in return the grateful support of the Londoners, exactly as he had expected the support of churchmen when he twice granted a charter in their favour. In both instances he was disappointed. Next day he made, probably as a measure of delay, an offer of arbitration to the barons. In the full tide of military preparations, he issued a writ in these words: "Know that we have conceded to our barons who are against us that we shall not take or disseise them or their men, nor go against them per vim vel per arma, unless by the law of our land, or by the judgment of their peers in curia nostra, until consideration shall have been made by four whom we shall choose on our part and four whom they shall choose on their part, and the lord Pope who shall be oversman over them"—words worthy of careful comparison with those used in chapter 39 of Magna Carta. The offer could not be taken seriously, since it left the decision of every vital issue virtually to the Pope, whom the barons distrusted.[^[26]]

Another royal writ, of two days later date, shows a rapid change of policy, doubtless due to the contemptuous rejection of arbitration. On 12th May, John ordered the sheriffs to do precisely what he had offered not to do. They were told to take violent measures against the rebels without waiting for a “judgment of peers” or other formality. Lands, goods, and chattels of the King’s enemies were to be seized and applied to his benefit.[^[27]]

The barons, rejecting all offers, marched by Northampton, Bedford, and Ware, towards the capital. London, in spite of the charter received eight days earlier, boldly threw in its lot with the insurgents, to whom it opened its gates on 17th May.[^[28]] The example of London was quickly followed by other towns and by many hesitating nobles. The confederates felt strong enough to issue letters to all who still adhered to the King, bidding them forsake him on pain of forfeiture.

John found himself, for the moment, without power of effective resistance; and, probably with the view of gaining time rather than of committing himself irretrievably to any abatement of his prerogatives, agreed to meet his opponents. As a preliminary to this, on 8th June he issued a safe-conduct for the barons’ representatives to meet him at Staines within the three days following. This was apparently too short notice, as on 10th June, John, now at Windsor, granted an extension of the time and safe-conduct till Monday, 15th June. William the Marshal and other envoys were dispatched from Windsor to the barons in London with what was practically a message of surrender. The barons were told that John “would freely accede to the laws and liberties which they asked,” if they would appoint a place and day for a meeting. The intermediaries, in the words of Roger of Wendover,[^[29]] "without guile carried back to the barons the message which had been guilefully imposed on them"—implying that John meant to make no promises, except such as were insincere. Yet the barons, immenso fluctuantes gaudio, fixed as the time of meeting the last day of the extended truce, Monday, 15th June, at a certain meadow between Staines and Windsor, known as Runnymede.

VI. Runnymede, and after.

On 15th June the King and the Barons met. On the side of the insurgents appeared a great host; on the monarch’s, merely a small band of magnates, loyal to the person of the King, but only half-hearted, at the best, in his support. Their names may be read in the preamble to the Charter: the chief among them, Stephen Langton, still nominally neutral, was known to be in full sympathy with the rebels.

Dr. Stubbs,[^[30]] maintaining that the whole baronage of England was implicated in these stirring events, gives a masterly analysis of its more conspicuous members into four great groups: (1) the Northumbrani or Norenses of the chroniclers, names famous in the northern counties, who had been the first to raise the standard of open revolt, and retained the lead throughout; (2) the other nobles from all parts of England, who had shown themselves ready from an early date to co-operate with the Northerners—“the great baronial families that had been wise enough to cast away the feudal aspirations of their forefathers, and the rising houses which had sprung from the ministerial nobility”; (3) the moderate party who, ready to worship the rising sun, deserted John after London had joined the rebels, including even the King’s half-brother (the Earl of Salisbury), the loyal Marshal, Hubert de Burgh, and other ministers of the Crown, whose names may be read in the preamble to the Charter; and (4) the tools of John’s misgovernment, mostly men of foreign birth, tied to John by motives of interest as well as by personal loyalty, since their differences with the baronial leaders lay too deep for reconciliation, most of whom are branded by name in Magna Carta as for ever incapable of holding office in the realm. These men of desperate fortunes alone remained whole-hearted on John’s side when the crisis came.[^[31]]

When the conference began, the fourth group was not near John, being otherwise occupied in the command of castle garrisons or of troops actually in the field; the third group, a small one, was with him; and the first and second groups were, in their imposing strength, arrayed against him.

Unfortunately, the vagueness of contemporary accounts prevents us from reproducing with certainty the progress of negotiations on that eventful 15th of June and the few days following. Some inferences, however, may be drawn from the words of the completed Charter itself and from those of several closely related documents. One of these, the Articles of the Barons,[^[32]] is sometimes supposed to be identical in its terms with the Schedule which had been already presented to the King’s emissaries, at Brackley, on the 27th of April.[^[33]] It is more probable, however, that during the seven eventful weeks which had since elapsed, the original demands had been somewhat modified. It is not unlikely that the interval had been employed in making the terms of the suggested agreement more full and specific. The Schedule of April was probably only a rough draft of the Articles as we know them, and these formed in their turn the new draft on which the completed Charter was based. Articles and Charter are alike authenticated with the impress of the King’s great seal, an indisputable proof that the terms of each of them actually received his official consent.

This fact affords a strong presumption that an interval must have elapsed between the King’s acceptance of the first and the final completion of the second; since it would have been absurd to seal what was practically a draft at the same time as the principal instrument. The probability of such an interval must not be lost sight of in any attempt to reconstruct in chronological sequence the stages of the negotiations at Runnymede.

A few undoubted facts form a starting-point on which inferences may be based. John’s headquarters were fixed at Windsor from Monday, 15th June, to the afternoon of Tuesday the 23rd. On each of these nine days (with the possible exception of the 16th and 17th) he visited Runnymede to confer with the barons.[^[34]]

Two crucial stages in these negotiations were clearly reached on Monday the 15th (the date borne by Magna Carta itself) and on Friday the 19th (the day on which John in more than one writ stated that peace had been concluded). What happened exactly on each of these two days is, however, to some extent, matter of conjecture. It is here maintained, with some confidence, that on Monday the substance of the barons’ demands was provisionally accepted and that the Articles were then sealed; while on Friday this arrangement was finally confirmed and Magna Carta itself, in several duplicates, was sealed.

To justify these inferences, a more detailed examination of the evidence available will be necessary. The earliest meeting between John and the baronial leaders, all authorities are agreed, took place on Monday, 15th June, probably in the early morning. The barons undoubtedly came to the conference provided with an accurate list of those grievances which they were determined to have redressed. On the previous 27th of April the rebels had sent a written Schedule to the King, along with a demand that he should signify his acceptance by affixing his seal;[^[35]] they are not likely to have been less fully prepared on 15th June.

John, on his part, would naturally try a policy of evasions and delays; and, when these were clearly useless, would then endeavour to secure modifications of the terms offered. These tactics met with no success. His opponents demanded a plain acceptance of their plainly expressed demands. Before nightfall, John, overawed by their firmness and by the numbers of the armed force behind them, was constrained to surrender. Leaving minor points of detail to be subsequently adjusted, he provisionally accepted the substance of the long list of reforms put before him by the barons, on the understanding that they would renew their allegiance and give him some security that they would keep the peace. In proof of this bargain, the heads of the agreement were rapidly engrossed on parchment to the number of forty-nine, and the great seal was impressed on the wax of the label, where it may still be seen.[^[36]]

The parchment containing these Articles of the Barons may have been the identical Schedule actually prepared by the rebel leaders previous to the meeting; but, more probably, it was written out at Runnymede during the conference on the 15th (or between two conferences on that day) by one of the clerks of the royal Chancery. This is more in keeping with its heading (written in the same hand, and apparently at the same time as the body of the deed), Ista sunt capitula quae barones petunt et dominus rex concedit.

Likely enough, it followed closely the words of the baronial Schedule; but it may have contained some slight modifications in favour of the Crown. One such, at least, was inserted, apparently as an afterthought (on the intervention of the King perhaps, or one of his friends); articles 45 and 46, as originally conceived, have been subsequently connected by a rude bracket, and a qualifying proviso added which practically bestowed on the Archbishop the powers of an arbitrator to determine whether both articles should be altered in favour of the Crown or no.[^[37]] The entire document is in a running hand, and appears to have been rapidly though carefully written. Its engrossment upon parchment with a quill pen must have occupied several hours; but a diligent copyist would not find it beyond his powers to complete the task in one day.

Tuesday, Wednesday and Thursday were consumed in further negotiations as to matters of detail; in reducing the heads of agreement already accepted to the more binding form of a feudal charter; and in engrossing several copies for greater security. Everything was, however, ready for a final settlement on Friday the 19th. At the conference held on that day the conclusion of the final concord probably included several steps; among others, the nomination by the opposition, with the King’s tacit acquiescence, of twenty-five barons to act as Executors under chapter 61,[^[38]] the solemn sealing and delivery of several original copies of the Great Charter in its final form, the taking of an oath by all parties to abide by its provisions, and the issue of the first batch of writs of instructions to the sheriffs.

Blackstone[^[39]] thinks that the barons on that day renewed their oaths of fealty and homage. It is more probable that, until John had actually carried out the more pressing reforms promised in Magna Carta, they refused formally to swear allegiance, undertaking, however, in the hearing of the two archbishops and other prelates, that they would keep the peace and furnish security to that effect in any form that John might name, except only by delivery of their castles or of hostages.[^[40]]

The statement that Friday, 19th June, was the day on which peace was finally concluded rests on unmistakable evidence. On 21st June, John wrote from Windsor to William of Cantilupe, one of his captains, instructing him not to enforce payment of any unpaid balances of “tenseries”[^[41]] demanded since the preceding Friday, “on which day peace was made between the King and his barons.”[^[42]]

It has been taken for granted by many historians that the peace was finally concluded, and the Great Charter actually sealed and issued on the 15th, not on the 19th.[^[43]] The fact that all four copies of Magna Carta still extant bear this date seems to have been regarded as absolutely conclusive on this point. Experts in diplomatics, however, have long been aware that elaborate charters and other documents, which occupied a considerable time in preparation, usually bore the date, not of their actual execution, but of the day on which were concluded the transactions of which they form the record. Legal instruments were thus commonly ante-dated (as it would be reckoned according to modern legal practice). Thus it is far from safe to infer from Magna Carta’s mention of its own date that the great seal was actually adhibited on the 15th June.

Such presumption as exists points the other way. The Great Charter is a lengthy and elaborate document, and it is barely possible that any one of the four originals known to us could have been engrossed (to say nothing of the adjustment of the substance and form) within one day. Not only is it much longer than the Articles on which it is founded; but even the most casual comparison will convince any unbiassed mind of the slower rate of engrossment of the Charter. All four copies show marks of great deliberation, while those at Lincoln and Salisbury in particular are exquisite models of leisurely and elaborate penmanship. The highly finished initial letters of the first line and other ornamental features may be instructively compared with the plain, business-like, rapid hand of the Articles. How many additional copies now lost were once in existence bearing the same date, it is impossible to say; but each of those still extant may well have occupied four days in the writing.[^[44]]

A comparison between the two documents shows few changes of importance in the tenor.[^[45]]

The one outstanding addition is the insertion, in an emphatic form, both at the beginning and at the end of the Charter, of a general declaration in favour of the freedom and rights of the Church. The inference seems to be that a new influence was brought to bear, between the preparation of the draft and that of the Charter. It was the Archbishop of Canterbury and his friends who thus converted the original baronial manifesto into something more nearly resembling a declaration of rights for the nation at large. One or two minor alterations seem slightly to benefit the Crown,[^[46]] while several others, rightly viewed, suggest an influence at work unfavourable to the towns and trading classes.[^[47]]

In addition to the various originals of the Charter issued under the great seal, chapter 62 provides that authenticated copies should be made and certified as correct by “Letters Testimonial,” under the seals of the two archbishops with the legate and the bishops. This was done, but the exact date of their issue is unknown.[^[48]]

The same Friday which thus saw the completion of negotiations saw also the issue of the first batch of letters of instructions to the various sheriffs, telling them that a firm peace had been concluded, by God’s grace, between John and the barons and freemen of the kingdom, as they might hear and see by the Charter which had been made, and which was to be published throughout the district, and firmly observed. Each sheriff was further commanded to cause all in his bailiwick to make oath according to the form of the Charter to the twenty-five barons or their attorneys, and further, to see to the appointment of twelve knights of the county in full County Court, in order that they might declare upon oath all evil customs requiring to be reformed, as well of sheriffs as of their servants, foresters, and others.[^[49]] This was held to apply chiefly to the redress of forest grievances.

Apparently, four days elapsed before similar letters, accompanied by copies of the Charter, could be sent to every sheriff. During the same few days, several writs (some of which have already been mentioned) were dispatched to military commanders with orders to stop hostilities. A few writs, dated mostly 25th June, show that some obnoxious sheriffs had been removed to make way for better men. Hubert de Burgh, a moderate though loyal adherent, and a man generally respected, was appointed Justiciar in room of the hated Peter des Roches. On 27th June, another writ directed the sheriffs and the elected knights to punish, by forfeiture of lands and chattels, all those who refused to swear to the twenty-five Executors within a fortnight. All these various instructions may be regarded as forming part of the settlement of the 19th of June, and were dispatched with the greatest rapidity possible.

Even after the settlement arrived at on Friday, some minor points of dispute remained. The barons refused to be satisfied without substantial security that the reforms and restorations agreed on would be carried out by the King; they demanded that both the city of London and the Tower of London should be left completely under their control as pledges of John’s good faith, until 15th August, or longer, if the reforms had not then been completed. John obtained a slight modification of these demands; he surrendered the city of London to his opponents, as they asked; but placed the Tower in the neutral custody of the Archbishop of Canterbury. These conditions were embodied in a supplementary treaty, which describes itself as Conventio facta inter Regem Angliae et barones ejusdem regni.[^[50]] If the barons distrusted John, he was equally distrustful of them, demanding the security they had promised for fulfilment of their part of the original compact. He now asked a formal charter in his favour that they would observe the peace and their oaths of homage, which they point-blank refused to grant. The King appealed to the prelates without effect. The archbishops, with several suffragans, however, put a formal protest on record of the barons’ promise and subsequent refusal to keep it.[^[51]]

The two archbishops and their brother prelates entered a second protest of a different nature. They seem to have become alarmed by the drastic measures adopted or likely to be adopted, founded on the verdicts of the twelve knights elected in each county to carry into effect the various clauses of the Great Charter directed against abuses of the Forest laws. Apparently, it was feared that reforms of a sweeping nature would result, and practically abolish the royal forests altogether. Accordingly, they placed their protest formally on record—acting undoubtedly in the interests of the Crown, feeling that as mediators they were bound in some measure to see fairplay. They objected to a strained construction of the words of the Charter, holding that the articles in question ought to be understood as limited; all customs necessary for the preservation of the forests should remain in force.[^[52]]

The provisions referred to were, as is now well known, chapters 47, 48, and 53 of Magna Carta itself, and not, as Roger of Wendover states, a separate Forest Charter.[^[53]] That writer was led into this unfortunate error by confusing the charter granted by King John with its re-issue by his son in 1217, when provisions for the reform of the forest law were framed into a separate supplementary charter. From Roger’s time onwards, the charters of Henry III. were reproduced in all texts and treatises, in place of the real charter actually granted by John. Sir William Blackstone was the first commentator to discover this grievous error, and he clearly emphasized the grave differences between the terms granted by John and those of his son, showing in particular that the former king granted no separate Forest Charter at all.[^[54]]

Before the conferences at Runnymede came to an end, confidence in the good intentions of the twenty-five Executors, drawn it must be remembered entirely from the section of the baronage most extreme in their views and most unfriendly to John, seems to have been completely lost. If we may believe Matthew Paris,[^[55]] a second body or committee of thirty-eight barons was nominated, representing other and more moderate sections of the baronage, to act as a check on the otherwise all-powerful oligarchy of twenty-five despots. If this second committee was ever really appointed, no details have been preserved as to the date of its selection, or as to the exact powers entrusted to it.

If the rebel leaders expected to arrive at a permanent settlement of their disputes when they came to meet the King on the morning of the 15th day of June, it must have been evident to all before the 23rd, that John only made the bargain in order to gain time and strength to break it. Three weeks, indeed, before John granted Magna Carta, he had begun his preparations for its repudiation. In a letter of 29th May, addressed to the Pope, there may still be read his own explanation of the causes of quarrel, and how he urged, with the low cunning peculiar to him, that the hostility of the rebels prevented the fulfilment of his vow of crusade. In conclusion, he expressed his willingness to abide by the Pope’s decision on all matters at issue.

John, then, at Runnymede was merely waiting for two events which would put him in a position to throw off the mask—the favourable answer he confidently expected from the Pope, and the arrival of foreign troops. Meanwhile, delay was doubly in his favour; since the combination formed against him was certain, in a short time, to break up. It was, in the happy phrase of Dr. Stubbs,[^[56]] a mere “coalition,” not an "organic union"—a coalition, too, in momentary danger of dissolving into its original factors. The barons were without sufficient sinews of war to carry a protracted struggle to a successful issue. Very soon, both sides to the treaty of peace were preparing for war. The northern barons, anticipating the King in direct breach of the compact, began to fortify their castles. John, in equally bad faith, wrote for foreign allies, whilst he anxiously awaited the Pope’s answer to his appeal.

Langton and the bishops still struggled to restore harmony. The 16th July was fixed for a new conference. John did not attend; but it was probably at this Council that in his absence a papal bull was read conferring upon a commission of three—the Bishop of Winchester, the Abbot of Reading, and the legate Pandulf—full powers to excommunicate all “disturbers of the King and Kingdom.” No names were mentioned, but these powers might clearly be used against Langton and his friends. The execution of this sentence was delayed, in the groundless hope of a compromise, till the middle of September, when two of the commissioners, Pandulf and Peter of Winchester, demanded that the Archbishop should publish it; and, on his refusal, they forthwith, in terms of their papal authority, suspended him from his office. Stephen left for Rome, and his absence at a critical juncture proved a national misfortune. The insurgents lost in him, not only their bond of union, but also a wholesome restraint. His absence must be reckoned among the causes of the royalist reaction soon to take place. After his departure, a papal bull arrived (in the end of September) dated 24th August. This is an important document in which Innocent, in the plainest terms, annuls and abrogates the Charter, after adopting all the facts and reproducing all the arguments furnished by the King. Beginning with a full description of John’s wickedness and repentance, his surrender of England and Ireland, his acceptance of the Cross, his quarrel with the barons; it goes on to describe Magna Carta as the result of a conspiracy, and concludes, “We utterly reprobate and condemn any agreement of this kind, forbidding, under ban of our anathema, the aforesaid king to presume to observe it, and the barons and their accomplices to exact its performance, declaring void and entirely abolishing both the Charter itself and the obligations and safeguards made, either for its enforcement or in accordance with it, so that they shall have no validity at any time whatsoever.”[^[57]]

A supplementary bull, of one day’s later date, reminded the barons that the suzerainty of England belonged to Rome, and that therefore nothing could be done in the kingdom without papal consent.[^[58]] Thereafter, at a Lateran Council, Innocent formally excommunicated the English barons who had persecuted “John, King of England, crusader and vassal of the Church of Rome, by endeavouring to take from him his kingdom, a fief of the Holy See.”[^[59]]

Meanwhile, the points in dispute had been submitted to the rude arbitrament of civil war, in which the first notable success fell to King John in the capture, by assault, of Rochester Castle on 30th November. The barons had already made overtures to Louis, the French King’s son, to whom they promised as a reward for his help, yet not perhaps with entire sincerity, the crown of England. Towards the end of November, some seven thousand French troops arrived in London, where they spent the winter—a winter consumed by John in marching from place to place meeting, on the whole, with success, especially in the east of England. John’s best ally was the Pope, who had no intention of allowing a French Prince to usurp the throne of one who was now his humble vassal. Gualo was dispatched from Rome to Philip, King of France, forbidding his son’s invasion, and asking rather protection and assistance for John as a papal vassal. Philip, anxious to meet the force of the Pope’s arguments with some title to intervene, of more weight than the invitation of a group of rebels, replied by an ingenious string of fictions. He endeavoured to find defects in John’s title as King of England, and to argue that therefore John was not in titulo to grant to the Pope the rights of an overlord. Among other arguments it was urged that John had been convicted of treason while Richard was King, and that this sentence involved forfeiture by the traitor of all rights of succession to the Crown. Thus the Pope’s claim of intervention was invalid, while Prince Louis justified his own interference by some imagined right which he ingeniously argued had passed to him through the mother of his wife.

John had not relied solely on papal protection. A great fleet, collected at Dover to block Louis with his smaller vessels in Calais harbour, was wrecked on 18th May, 1216. The channel thus cleared of English ships, the French Prince, setting sail on the night of the 20th May, landed next morning without opposition. John, reduced to dependence on mercenaries, did not dare oppose his landing. Gualo, now in England, on 28th May excommunicated Louis by name, and laid London under interdict. Such thunderbolts had now lost their blasting power by frequent repetition, and produced no effect whatever. On 2nd June, Louis entered London amid acclamations, and marched against John at Winchester, which he reached on 14th June, after John had fled. Ten days later, the ancient capital of Wessex with its castles surrendered. Next day, the French Prince attacked Dover, whose brave defender, Hubert de Burgh, after some months of stubborn resistance, obtained a truce, on 14th October, in order that the garrison might communicate with the King. Before Hubert’s messengers could reach him, John was dying. During these months, when the verdict of war was going against him in the south, he had been acting in the north strenuously, and not without success. The issue still trembled in the balance. A royalist reaction had begun. The insolence of the French troops caused desertions from the barons.

On 10th October John, after being feasted to excess by the loyal burghers of Lynn, fell into an illness from which he never really recovered. Nine days later, worn out by his wars, and by excitement and chagrin, at this critical juncture when fortune might have taken any sudden turn, he died at Newark Castle, in the early hours of the morning of 19th October, 1216. His death saved the situation, rendering a compromise possible. Almost immediately, there took place an entirely new grouping of political forces inside and outside of England. A silent compromise was effected, all parties returning gradually to their natural allegiance to the son of John, on the understanding that the Charter in its main features should be accepted as the basis of his government. Prince Louis was soon discarded. Rome also fell into line; the death of Innocent, on 16th June, 1216, had been equally opportune with the death of John, four months later, removing an obstacle from the path of peace. Gualo, in the name of Innocent’s successor, consented to the re-issue of the Charter by the advisers of the young King Henry.

[1]. R. Hoveden, Chronica, II. 218.

[2]. The details of these reforms are fully discussed infra under the head of “[Royal Justice and Feudal Justice],” and some of their ultimate effects under the head of “[Trial by Jury].”

[3]. In one county, Westmoreland, the office did become hereditary.

[4]. See Round, Commune of London, 273. This measure is discussed infra pp. [91-2].

[5]. R. Wendover, III. 239.

[6]. W. Coventry, II. 207; R. Wendover, III. 239.

[7]. From their possible connection with the wording of the famous chapter 39 of Magna Carta, it may be worth while to quote the exact words in which Ralph de Coggeshall, Chronicon Anglicanum, p. 165, describes this event, which he places (probably wrongly) in the year 1213.—“Rex Eustachium de Vesci et Robertum filium Walteri, in comitatibus tertio requisitos, cum eorum fautoribus utlaghiari fecit, castra eorum subvertit, praedia occupavit.”

[8]. See Miss Norgate, John Lackland, 170, and authorities there cited.

[9]. Ibid., 292–3.

[10]. The late Cardinal Manning in an article in the Contemporary Review for December, 1875 (since published in book form), on the Pope and Magna Carta, insists, probably with reason, that contemporary opinion saw nothing disgraceful in the surrender, rather the reverse.

[11]. R. Coggeshall, p. 167.

[12]. Stubbs, Const. Hist., I. 566.

[13]. R. Wendover, III. 261-2.

[14]. Roger of Wendover, III. 263-6. Blackstone (Great Charter, Introduction, p. vi.), makes the apposite comment that it seems unlikely that the discovery by the Archbishop of a charter probably already well known “should be a matter of such novelty and triumph.”

[15]. R. Wendover, III. 262-3.

[16]. The charter recording this act may be read in New Rymer, I. 115. It was sealed not in perishable wax, but in solid gold.

[17]. John Lackland, 195.

[18]. See W. Coventry, II. 217, dicentes se propter terras quas in Anglia tenent non debere regem extra regnum sequi nec ipsum euntem scutagio juvare. The legality of this contention is discussed infra, pp. [83-6].

[19]. See Miss Norgate, John Lackland, p. 221.

[20]. R. Wendover, III. 293.

[21]. R. Wendover, III. 298.

[22]. Is it not possible that the so-called “unknown charter of Liberties” (see infra under [Part V.] and [Appendix]) was the very schedule mentioned by Wendover? It was drawn up in the form of a charter, so as to be ready for the immediate imprint of the seal they demanded.

[23]. R. Wendover, III. 298.

[24]. Blackstone, Great Charter, p. xiii., citing the Annals of Dunstable (p. 43), says they were absolved at Wallingford by a Canon of Durham.

[25]. The Charter appears Rot. Chart., p. 207. Cf. under chapter [13] infra, where the rights of the Londoners are discussed.

[26]. The writ is given in Rot. Pat., 1. 141, and also in New Rymer, I. 128.

[27]. For writ, see Rot. Claus., 204.

[28]. Some authorities give 24th May as the date. It must have been the 17th; since New Rymer, p. 121, under the date of 18th May, prints a writ of John, informing Rowland Blaot of the surrender of London to the barons. This was followed on 20th May (N.R., p. 121) by another royal writ, ordering all bailiffs and other faithful, to molest the Londoners in every way possible.

[29]. III. 301.

[30]. Const. Hist., I. 581-3.

[31]. The individual names may be read in Stubbs, Ibid.; and readers in search of biographical knowledge are referred to Bémont, Chartes, 39–40, and for fuller, though less reliable information, to Thomson, Magna Charta, 270–322.

[32]. See Appendix.

[33]. See supra, p. [40].

[34]. So far there can be no doubt. Either on the Close Rolls or on the Patent Rolls (q.v.) copies of one or more writs are preserved dated from Windsor on each of these days, and also one or more dated from Runnymede on 15th, 18th, 19th, 20th, 21st, 22nd, and 23rd June.

[35]. R. Wendover, III. 298.

[36]. In the British Museum. See infra under Part V.

[37]. Cf. Blackstone, Great Charter, xvii.: "subjoined in a more hasty hand, ... as if added at the instance of the King’s commissioners upon more mature deliberation."

[38]. See infra under that chapter.

[39]. Great Charter, p. xxiv.

[40]. See Protest of Archbishops infra, p. 52.

[41]. Mr. Round explains this word in a learned appendix (Geoffrey de Mandeville, p. 414) to mean “blackmail,” i.e. “money extorted under pretence of protection or defence.”

[42]. See Rot. Claus., p. 225 (17 John membrane 31). The evidence of this writ does not stand alone. In another writ on the same membrane of the Close Rolls, dated 19th June, John informs his half-brother, the Earl of Salisbury, that he has concluded peace, and instructs him to restore certain lands and castles immediately, as this had been made a condition of peace. See also the writ to Stephen Harengod infra, p. 49.

[43]. Blackstone, however (Great Charter, xv.), speaks of a “conference which lasted for several days, and did not come to a conclusion till Friday, the 19th June.”

[44]. Miss Norgate, John Lackland, p. 234, acquiesces in the view generally received, fixing Monday as the day on which the final concord was arrived at, but she relies for evidence on a more than doubtful interpretation of what is undoubtedly an error in the copy of a writ by King John appearing on the Patent Rolls. This writ, which as copied in the Rolls bears to be dated 18th June (erroneously as will immediately be shown), is addressed to Stephen Harengod (in terms closely resembling those of the writ already cited from the Close Rolls addressed to William of Cantilupe), announcing inter alia that terms of peace had been agreed upon “last Friday.” Miss Norgate contends with reason that there must be a mistake somewhere, since on the Friday preceding the 18th, negotiations had not even begun. She is confident that "the ‘die Veneris’ which occurs three times in the writ is in each case an unquestionable, though unaccountable, error for ‘die Lunae.’" Yet, it is unlikely that a scribe writing three days after so momentous an event could have mistaken the day of the week. It is infinitely more probable that in writing xxiij. he formed the second “x” so carelessly that it was mistaken by the enrolling clerk for a “v.” The correct date is thus the 23rd, and the reference is to Friday the 19th. This presumption becomes a certainty by comparison with the words of the writ to William of Cantilupe, dated the 21st (of the existence of which Miss Norgate was probably not aware).

[45]. Blackstone, Great Charter, xviii., has given a careful analysis of the points of difference.

[46]. E.g. chapters 48 and 52. For alterations directed against the trading classes, see chapters 12, 13, 35, and 41 infra.

[47]. Miss Norgate, John Lackland, 233, takes a different view, holding that the influence of Stephen Langton dates from an earlier period. The original articles “are obviously not the composition of the barons mustered under Robert Fitz-Walter,” who could never have risen to “the lofty conception embodied in the Charter—the conception of a contract between King and people which should secure equal rights to every class and every individual in the nation.” The correctness of this estimate is discussed infra.

[48]. No specimen of these Letters Testimonial is known to exist, but a copy is preserved on folio 234 of the Red Book of the Exchequer. See Appendix.

[49]. See Rot. Pat., I. 180, and Select Charters, 306–7.

[50]. New Rymer, I. 133. See Appendix. It is undated, but must be later than the letters to sheriffs concerning election of twelve knights, to which it alludes.

[51]. Rot. Pat., p. 181. As we have to depend for our knowledge of this important protest on one copy, engrossed on the back of a membrane of an official roll (No. 18 of John’s 17th year), it is possible to doubt its genuineness; but it is unlikely to be purely a forgery.

[52]. See Rot. Pat. and New Rymer, I. 134.

[53]. See R. Wendover, III. 302-318.

[54]. Great Charter, p. xxi.

[55]. Chron. Maj., II. 605-6.

[56]. Stubbs, Const. Hist., II. 3.

[57]. The original bull with the seal of Innocent still attached is preserved in the British Museum (Cotton, Cleopatra E 1), and is carefully printed by Bémont, Chartes des Libertés Anglaises, p. 41. It may also be read inter alia in Rymer and in Blackstone.

[58]. The text is given by Rymer.

[59]. See Rymer, and Bémont, Chartes, xxv.

PART 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.

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.

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.

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]]

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.

[60]. The Great Charter, p. vii.

[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.

[62]. See infra the two sections (II. and III.) immediately following.

[63]. Stubbs, Select Charters, 270.

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.

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.[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]]

(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]]

(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.

(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).

(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]]

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."

(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]]

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]]

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.

(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.

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]]

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]]

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.

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]]

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]]

(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.

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]]

(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]]

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]]

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.

(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]]

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.

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]]

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]]

(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]]

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.”

(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]]

(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]]

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]]

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]]

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]]

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.

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]]

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]]