Magna Carta: Its Form and Contents, I.: Its Prototypes: Earlier Charters.

The traditional view makes Magna Carta the direct descendant of Henry Beauclerk’s Coronation Charter, which is, in turn, regarded as merely an amplification of the old coronation oath sworn by the Conqueror and his sons, in terms borrowed from a long line of Anglo–Saxon kings, stretching back from Edward Confessor to Edgar, Alfred and Egbert, until its origin is lost in the mists of antiquity. According to this time–honoured view, which insists on an exclusively Anglo–Saxon pedigree for the charters of Norman and Angevin kings, the charters of Henry I. and John were regarded as confirmations to the nation at large of the essential principles of the old laws of Alfred and of Edward, thus bridging over, alike in form and substance, the gulf of the Norman Conquest.

The accuracy of these preconceptions has of late years been rudely questioned. The simple formula for solving all problems of English constitutional origins by assuming an unmixed Anglo–Saxon ancestry, has been challenged from more sides than one. Magna Carta, like the Constitution itself, is of mixed parentage, tracing its descent not entirely from Teutonic, but partly from Norman, and even Danish and Celtic sources. In the first place, John’s Charter derives some of its vital clauses from documents not couched in charter form. The Constitutions of Clarendon of 1164 and the Forma Procedendi of 1194 are as undoubtedly antecedents of Magna Carta as is the Coronation Charter of Henry itself. The same is true of many grants made by successive kings of England to the Church, to London and other cities, and to individual prelates and barons. (In a sense, the whole previous history of England went to the making of Magna Carta.)

Then, again, the exclusively Anglo–Saxon origin of the antecedents of Henry’s Charter is by no means left unchallenged. A recent American writer, attacking the older theories as advanced by Bishop Stubbs, has formulated these three propositions: that Henry’s charter was feudal in character rather than constitutional or national, promising “a regulated feudal government” purged of Rufus’ misdeeds rather than a return to a “national” type of government; that its substance was derived from Norman innovations rather than from the Confessor’s or Canute’s laws; and that its form was founded on continental models, possibly on some Norman borough charter, and by no means on the old coronation oath.

These iconoclastic theories require to be modified: the claims of Magna Carta, on its formal side, at least, to an Anglo–Saxon ancestry have found a powerful advocate in Mr. W. H. Stevenson, who holds that the Anglo–Norman charters of liberties “are developments of the Anglo–Norman writ charter, and that in its turn is . . . merely the Anglo–Saxon writ translated into Latin.”

Looking both to the contents and the formalities of execution of John’s Great Charter, the safer opinion would seem to be, that, like the English Constitution, it is of mixed origin, deriving elements from ancestors of more races than one; but that the traditional line of descent from the oaths and writs of Anglo–Saxon kings, through the Charter of Henry I., is one that cannot be neglected.

The promises of good government that connect King John with the old kings of Wessex are thus the outcome of an essential feature of the ancient monarchy, and of the rules that regulated succession to the Crown. Two rival principles, the elective and the hereditary, from an early date, had struggled for the mastery. In an unsettled state of society, nations cannot allow the sceptre to pass to an infant or a weakling. When a king died, leaving a son of tender age and a brother of mature ability, the magnates of the kingdom, the so–called Witan, claimed the right to choose a fitting successor. The exact relations between the elective and the hereditary principles were never laid down with absolute precision: the practice usually followed by the Witenagemot was to select some near kinsman of the late king competent for the post. The king–elect had still to be solemnly anointed, and this gave to the Church an important share in deciding who should be king. Not later than the days of Edgar, it became the practice for the officiating archbishop to exact an oath of good government from the new sovereign before his final coronation. The terms of this oath became stereotyped; and, as administered by Dunstan to King Ethelred, they are still extant.

This may be analyzed into three promises—peace to God’s Church and people; repression of violence in men of every rank; justice and mercy in all judgments. When William I., anxious in all things to fortify the legality of his title, took the oath in solemn form, he created a precedent of tremendous importance, although he may have regarded it at the moment as an empty formality. The quasi–elective character of the kingship, the need for coronation by the Church, and this tripartite oath were all preserved.

This was of vital moment, because limits were thereby placed, in theory at least, to prerogatives that threatened to become absolute. The power of the Norman kings might almost be described as irresponsible despotism, tempered by fear of rebellion. Three forces, indeed, acted as curbs: the necessity for consulting the Curia Regis; the restraining influence of the Church; the growth of a body of public opinion, confined as yet to the upper classes.

These elements counted for something, but failed to restrain sufficiently even an average king; while they were powerless against a strong ruler, like William I. The moment at which the Crown might be taken at disadvantage was during the interregnum that followed a king’s death. Thus, William Rufus, anxious to prevent his elder brother Robert from making good his claim to the English throne, succeeded chiefly through the friendship of Lanfranc. To gain this, he was compelled to make promises of good government, taking oath in the ancient form. In the same reign, began the practice of supplementing verbal promises by sealed charters. No such charter was indeed issued either by Rufus or his father when they were crowned; but the younger William, at a critical period in his reign, granted a short Charter of Liberties, the text of which has not come down to us. By a treaty made at Caen in 1091, Duke Robert and Rufus agreed that each should constitute the other his heir. Thus, at Rufus’ death, Henry was, in a sense, a usurper, and this made it necessary for him to bid high for influential support. It is to this doubtful title that Englishmen owe the first Charter of Liberties that has come down to us.

Roger of Wendover relates how “as many charters were made as there are counties in England, and by the King’s command they were deposited in the abbeys of every county as a memorial,” and this is confirmed by an analysis of the copies still preserved.

Henry’s coronation charter was the price paid for support in his candidature for the Crown. Its terms contain, however unconsciously, an indictment of his brother Rufus’ government and, perhaps, in part also of his father’s. The new king was merely “playing to the gallery”: when his purpose was served, his promises were broken. On the bearing of these promises there is room for diversity of opinion. Dr. Stubbs’ contention that Henry “definitely commits himself to the duties of a national king” has been rejected, as already explained, by recent critics. The more modern view is strengthened by an analysis of the Charter, revealing important concessions to the barons and the Church, while those to the people at large were few and vague. Of the fourteen chapters into which it is usually divided, chapter one proceeds on the narrative that the kingdom had been oppressed by unjust exactions. Henry, in the first place, makes free the holy Church of God, “so that I shall neither sell nor farm out nor, on the death of archbishop, or bishop or abbot, accept anything from the demesne of the church or from its feudal–tenants until a successor has been inducted to it.”

It seems doubtful whether the regrettably vague phraseology of the qualifying clause is intended merely to apply the generalities of the church’s “freedom” to specific instances, or whether it must be taken as a deliberate restriction. The prohibition of selling has been read as referring to the simoniacal practice of taking money from aspirants to episcopal preferments; but more probably it was meant to prohibit the alienation of the property of a vacant see, a practice that must have been often resorted to, if we judge from the efforts at recovery made by successive archbishops, notably by Becket. This reading is the more probable from the fact that “selling” is here coupled with “farming out,” an expedient clearly inapplicable to prelatical appointments and referring to the Crown’s practice of granting leases of the lands of vacant sees for nominal annual returns in consideration of a heavy grassum paid to the Treasury at the commencement of the lease. The rest of the clause is best interpreted as a renunciation of the claim to exact either a “relief” from a prelate on his appointment or payments in lieu of relief from tenants of a vacant see or royal abbey.

The last clause of the chapter abrogates evil customs whereby the kingdom was unjustly oppressed, and then proceeds to define them—a process that occupies the remaining thirteen chapters of the document. Chapter 2 promises that reliefs of feudal tenants should be “just and legitimate.” Chapters 3 and 4 guard against abuse of the feudal incidents of marriage and wardship. Chapter 5 abolishes as an innovation “the common mintage” (an exaction levied by the mints when the coinage was altered), and enjoined the punishment of any one taken with false money—provisions finding no echo in John’s Charter.

Chapter 6 remits a number of arrears, reliefs, and penalties due to Rufus at his death. Chapter 7 confirms crown–tenants in the right to dispose of their personal estate by will, and provides for the division of the property of intestates among their wives, children, relations, and vassals, and for the good of their own souls. Chapter 8 seems to promise the total abolition of the Norman system of forfeitures and amercements (in respect of petty offences, as opposed to treasons and crimes) and a return to the Anglo–Saxon system of a fixed tariff of bots and wites.

Chapter 9 is concerned with the “murdrum” fine—a payment exacted by the Norman kings from all the inhabitants of a hundred in which a corpse had been found, where the slayer remained undiscovered and the dead man’s identity as a person of English birth could not be proved. “Murder” was thus primarily secret slaying, in the sense that the perpetrator was not known, and, secondarily, the fine exacted on that account. This heavy fine, whose original amount is variously given as 40 or 46 marks, was intended as a protection to Normans against the native Englishry they oppressed.

Henry remitted all “murder–fines” incurred before his coronation, and promised that those incurred after that date should be “justly” paid for “in accordance with the law of King Edward”—a clause difficult to reconcile with the recognized opinion that the murdrum was unknown in England prior to 1066, unless on the supposition that the draftsman of the Charter of 1100 was strangely ignorant of the usages of thirty–four years earlier. Perhaps the “murder–fine” was not an invention of the Conqueror and his sons, but an old English institution put by the Normans to new uses. An alternative suggestion may be hazarded that here (as perhaps elsewhere in the charter) the reference to the good laws of Edward was a mere tag or “common form,” meant to please his subjects without committing the King to anything in particular.

Chapter 10 contains no concession (unless it be an implied renunciation of Rufus’ encroachments), but, on the contrary, a blunt intimation that Henry, with his barons’ consent, would retain the forests as his father had had them. The barons’ consent may be partly explained by their expectation to enjoy, as more or less habitually in attendance upon Henry, a share in the pleasures of the hunt of which the King was “master.” By chapter II., Henry concedes “proprio dono meo to knights holding their lands per loricas [that is, by knight’s service] to have the lands of their demesne ploughs quit of all gelds and of every [non–military] service, in order that, as being relieved by so great a relief, so they might effectually provide themselves with horses and arms for my service and the defence of my kingdom.” In thus exempting Crown–tenants holding by the “hauberk” (that is to say his “barons,” in the wider sense of the word) from Danegeld, on the distinct understanding that they should keep in readiness an efficient military equipment, Henry aimed at making hard–and–fast an old and fluctuating rule that prohibited Crown–tenants from being subjected to a double set of burdens. The lands of knights and churchmen, who already served the King in other ways, were not expected to contribute Danegeld in respect of their home–farms. Holders of knight’s fees, however, must keep proper weapons and armour for themselves and their horses—an obligation involving an expenditure constantly increasing with every advance in the art of war. The chapter thus recognizes a contrast between land subject to military service and land subject to geld; “the inland and warland of old English fiscal arrangements, the dominium and terra geldabilis respectively of the Geld Roll of 1084.” The fact that Henry’s Charter draws so sharp a line between the two, suggests that the barons may have made this a condition of their support of his claims against those of Robert. Henry’s promise, however, was never strictly carried out: the practice continued to fluctuate. Under Henry II., only the barons of the Exchequer and a few privileged religious persons enjoyed exemption. Gradually the distinction between inland and warland became extinct.

The remaining clauses of the Charter of Henry I. are mainly of a formal character. Chapter 12 declares a firm peace for the future throughout his kingdom—thus marking the end of the interregnum consequent on his brother’s death. Chapter 13, on the strength of which wide–reaching theories have sometimes been built, seems to be merely an amplification of the purely formal chapter that precedes it: it restores the law of Edward, with the reforms his father had effected with the barons’ consent. The old law was vague; the innovations definite and well known. Chapter 14 proclaims terms and conditions of indemnity, extended to those guilty of acts of spoliation during the interregnum now brought to an end.

These provisions, taken as a whole, contain little to justify Henry’s claim to rank as a constitutional or national sovereign. The bulk of the concessions are made to the barons. The Church, it is true, obtains a definite promise in chapter one: but the individuals who would chiefly benefit were newly–appointed prelates, who became feudal vassals on entering upon the lands of their sees. Chapters 2 and 4 confine their benefits to Crown–tenants and sub–tenants, and are therefore purely feudal and not “national” in their range. They may be compared with the clauses of John’s Charter that extend some of its provisions to sub–tenants. Chapters 12 and 13, with their vague affirmation of a firm peace, and of the old English law, now half–forgotten (undefined and declared valid only so far as unaltered by William I.), are the only grants “to the people at large.” The baronial element clearly triumphs over the “national,” in the tenor and outlook of the famous coronation charter.

There are three intermediate links in the chain of charters connecting those of Henry I. and John, namely, the two charters of Stephen and that of Henry II. The circumstances of the accession of the earlier King were peculiar. Henry I. had nominated his only child Matilda as his heir: his nephew, Stephen, and all the English barons had done homage to her as their future liege lady. Stephen, however, taking advantage of Matilda’s absence and unpopularity, and of the barons’ reluctance to be ruled by a woman, made a bold dash for the Crown. From the moment of the old King’s death, “the Norman barons treated the succession as an open question”: in these words of Stubbs, Dr. Round finds the keynote of the reign. Stephen was prepared to bid higher for support than Henry had felt compelled to do: like William of Orange, five centuries later, he agreed to become “king upon conditions.” A Charter of Liberties and a solemn oath securing “the liberty of the Church” together formed the price of Stephen’s consecration; and this price was not perhaps too high when we remember that “election was a matter of opinion, coronation a matter of fact.” The process by which he built up a title to the Crown culminated in the Easter of 1136, when he secured the support of Matilda’s half–brother Robert, Earl of Gloucester, whose lead was quickly followed by influential nobles who, however, performed homage under an important reservation; their future loyalty would be strictly conditional on the treatment extended to them by Stephen.

These transactions took place at Oxford; at the same time the King issued his second or Oxford Charter, which combined the provisions of the oath to the Church and of the vague earlier charter, with the conditions extorted by Earl Robert and his followers. The opening words contain a laboured attempt to set forth a valid title to the throne. All reference to predecessors is avoided, and Stephen declares himself king “by appointment of the clergy and people, by consecration of the Archbishop and papal legate, and by the Pope’s confirmation.

Perhaps its chief provisions are those in favour of the Church, supplementing a vague declaration that the Church should be “free” by specific promises that the bishops should have exclusive jurisdiction and power over ecclesiastics and their goods, with the sole right to superintend their distribution after death. Here was a clear confirmation of the right of the Courts Christian to a monopoly of all pleas affecting the clergy or their property. Stephen also renounced wardship over church lands during vacancies—a surrender never dreamt of by Henry I. or Henry II. Grants to the people at large followed. A general clause promising peace and justice was supplemented by specific concessions of more practical value, namely, a promise to extirpate all exactions, unjust practices, and “miskennings” by sheriffs and others, and to observe good, ancient, and just customs in respect of murder–fines, pleas, and other causes.

Strangely enough, there is only one provision specially benefiting feudal magnates, the King’s renunciation of all tracts of land afforested since the time of the two Williams. The omission of further feudal concessions must not be attributed either to Stephen’s strength, or to any spirit of moderation or self–sacrifice in the magnates. Each baron of sufficient importance had already extorted a private charter, more valued than a general provision in favour of all and sundry. Such grants often included the right to maintain a feudal stronghold, whose owner would enjoy a position of practical independence.

It is instructive to compare these wide promises of Stephen with the meagre words of the charter granted by Henry of Anjou at or soon after his coronation. Henry II. omits all mention of Stephen and his charters, not because he did not wish to acknowledge a usurper, but because of that usurper’s lavish grants to the Church. Henry had no intention to confirm “benefit of clergy” in so sweeping a form, or to renounce wardship over vacant sees.

To the Church, as to the barons, Henry confirms only what his grandfather had already conceded. Even compared with the charter of Henry I., that of the younger Henry is shorter and less explicit—features that justified Stephen Langton in his preference for the older document. If Henry II. granted a short and grudging charter, neither of his sons, at their coronations, granted any charter at all. Reasons for the omission readily suggest themselves; the Crown had grown strong enough to dispense with this unwelcome formality, partly because of the absence of rival competitors for the throne, and partly because of the perfection to which the machinery of government had been brought. The utmost the Church could extract from Richard and John, as the price of their consecration, was the renewal of the three vague promises contained in the oath, now taken as a pure formality. John, however, was not to be allowed to shake himself free from the obligations of his oath. Stephen Langton, before absolving him in 1213, compelled him to swear it anew.

Not only were the terms of the ancient oath riveted anew on John’s conscience, but, as has been shown, the coronation Charter of Henry I., exhibited by the Primate in times of crisis to the nobles, and used in preparing the schedules that formed the rough drafts of the Articuli Baronum, was made a curb for royal caprice. It is thus impossible to neglect the importance of the sequence of coronation oaths and charters as contributors both to the form and substance of Magna Carta, although that is only one of the many lines of descent through which the Great Charter can trace its ancestry.