III.: Relations to Contemporary Theory.

Clumsy and impracticable as the whole scheme appears to modern eyes, it was quite in accord with medieval theory. The conception of a relation founded upon contract between lord and vassal lies at the root of feudalism. If either party glaringly broke the terms of the compact, the other was justified in repudiating the relationship, but he must observe due formalities. Diffidatio, intimated to his lord, must precede any attempt of the vassal to redress his wrongs by force. The barons at Runnymede, having complied with this preliminary, had for the moment ceased to owe fealty to John. In reserving power to appoint an Executive Committee (even if this be regarded as implying a right of legalized rebellion), as a condition precedent to a renewal of allegiance, they moved in the direction of legal restraint as opposed to revolutionary violence. The right here recognized by John, likely as it might be to lead to hostilities, was in theory and intention an honest effort to obviate war by recourse to the nearest approximation to constitutional action then available. It was, further, an attempt to substitute united action of the body of feudal tenants (communa totius terræ) for the individual vassal’s right of private judgment, claimed and sometimes exercised in that age, on the European continent, and actually confirmed in 1222 by Andreas II. of Hungary by his Bulla Aurea.

The expedient contained in this chapter is a logical deduction from the vassal’s right of defiance as a prelude to private war against a lord who has wronged him. It was no innovation, but something found by the barons in feudal law. Foreign parallels have been found for it, not only in the more anarchic procedure of the Hungarian Bulla Aurea, but also in the institutions of Aragon and elsewhere. When the baronial leaders in 1263 performed diffidatio, they echoed the words of this chapter, “salva persona regis, reginae et liberorum suorum.”

This chapter has been acclaimed as embodying for the first time the idea that formed “the true corner stone of the English Constitution,” namely, the right to compel an erring King to bow to a body of law that lies outside his will. There is much to be said for this view. It is quite consistent, however, to combine an appreciation of the value of this conception, with an admission of the defective and clumsy nature of the machinery by which a first attempt was made to realize it.