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glasgow: printed at the university press by robert maclehose and co. ltd.

In one country, Westmoreland, the office did become hereditary.

Adams, Pol. Hist. of Engl., II. 141. See, however, Davis, England under Normans, 132.

Adams, Pol. Hist. of Engl., II. 148. Contrast the older view in Stubbs, Const. Hist., I. 342–3.

Makower, Const. Hist. of Church, 24–26.

Petit–Dutaillis, Louis VIII., 30.

See Round, Commune of London, 273.

Histoire des ducs, p. 109.

R. Wendover, III. 239.

W. Coventry, II. 207; R. Wendover, III. 239.

From their possible connection with chapter 39 of Magna Carta, it may be worth while to quote the words of Ralph de Coggeshall, Chronicon Anglicanum, p. 165: “Rex Eustachium de Vesci et Robertum filium Walteri, in comitatibus tertio requisitos, cum eorum fautoribus utlaghiari fecit, castra eorum subvertit, praedia occupavit.”

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

Ibid., 292–3.

For the complacency with which contemporary opinion viewed John’s surrender, see Petit Dutaillis, Louis VIII. p. 39. Cf. ibid. p. 181. See also Cardinal Manning, Contemp. Rev., December, 1875; Adams, Origin Engl. Const., 152 n.

R. Coggeshall, p. 167.

For the latest views on this council and the writs of summons, see Prof. A. B. White, Am. Hist. Rev., XVII. 12–16.

R. Wendover, III. 261–2.

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

R. Wendover, III. 263–6. Ramsay, Angevin Empire, 444, doubts the authenticity of this meeting, the incidents of which have a suspicious resemblance to what took place some fourteen months later at Bury St. Edmunds: see infra, p. 32.

See Appendix.

R. Wendover, III. 262–3.

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

Sel. Chart. 287.

John Lackland, 195.

See e.g. Adams, Origin, 340–1.

See Rol. Pat. I. 110, 110, b.

See W. Coventry, II. 217.

See Norgate, John Lackland, p. 221.

R. Wendover, III. 293. Cf. supra 28.

R. Wendover, III. 301.

R. Wendover, III. 298. For the schedule see infra, pp. 37–9.

R. Wendover, III. 298.

Chronica de Mailros, sub anno 1215.

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

Cf. Adams, Origin, 181 n.; 306, 312; cf. also infra under c. 61.

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

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

For writ, see Rot. Claus., 204.

Some authorities give 24th May, but New Rymer, p. 121, under 17th May, prints a writ of John, informing Rowland Blaot of the surrender of London. This was followed on 20th May (N. R., p. 121) by another writ, ordering bailiffs and other to molest the Londoners in every possible way.

III. 301.

Const. Hist., I. 581–3.

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

See Appendix.

So far there can be no doubt. Either on Close or Patent Rolls (q.v.) copies of 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.

R. Wendover, III. 298.

In the British Museum. See infra under Part V.

R. Coggeshall, 172.

See infra, c. 2

See infra, cc. 58 and 59. 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.”

See infra, c. 61.

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

E.g. chapters 48 and 52 infra.

E.g. chapters 12, 13, 35, and 41 infra.

The powers and constitutional position of these “executors” are fully discussed infra under c. 61.

See Protest in Appendix.

Round explains this (Geoffrey de Mandeville, 414) as “blackmail,” i.e. “money extorted under pretence of protection or defence.”

See Rot. Claus., p. 225. This writ does not stand alone. In another writ, dated 19th June, John informs his half–brother that he has just concluded peace. See also Annals of Dunstable, III. 43, reporting peace made “die Gervassi et Protasii,” i.e. on 19th June.

Miss Norgate, John Lackland, p. 234, in fixing on Monday as the day of final concord, relies for evidence on a more than doubtful interpretation of an error in the copy of a writ, which in the Patent Rolls bears to be dated 18th June (erroneously as will be shown), addressed to Stephen Harengod, announcing that terms of peace had been agreed upon “last Friday.” Miss Norgate contends that on the Friday preceding the 18th negotiations had not even begun, and is confident that the “die Veneris” which occurs three times in the writ is an 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 is 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, and other evidences cited supra, p. 40.

No specimen of these Letters is known, but a copy is preserved on folio 234, Red Book of Exchequer. See infra under c. 62 and also R. L. Poole, Eng. Hist. Rev., XXVIII. 448.

See Appendix.

He might here have strengthened his argument by referring to the evidences of extreme care shown in revising the original Articles of the Barons when translating them into charter form. This would have been thrown away, if John intended to break faith. On the other hand, this care, equally with the issue of writs, might have been a blind.

See Louis VIII., p. 57, and also Hardy’s Introd. to Litt. Pat., XXIX., where the story was disproved by dates of writs issued elsewhere.

See Hist. des ducs de Norm., pp. 149–151.

Louis VIII., p. 57.

See Norgate, Lackland, 235, citing M. Paris, II. 611.

New Rymer, I. 133. See Appendix. It is undated, but must be later than the letters of 27th June to which it alludes.

Rot. Pat., 181. See Appendix.

See Rot. Pat. and New Rymer, I. 134.

See R. Wendover, III. 302–318.

Great Charter, p. xxi.

M. Paris, II. 605–6.

Hist. des ducs de Normandie, 151.

New Rymer, I. 129.

Stubbs, Const. Hist., II. 3.

Walter of Coventry, 222.

See Petit–Dutaillis, Louis VIII., 61.

The bull with the seal attached is in the British Museum (Cotton, Cleopatra E 1), and is carefully printed by Bémont, Chartes, 41. It may also be read in Rymer and Blackstone.

The text is given by Rymer.

See Rymer, and Bémont, Chartes, XXV.

Cronique de Merton, cited Petit–Dutaillis, Louis VIII., 514.

Ibid., 115

The Great Charter, p. vii.

R. Wendover, II. 535.

M. Paris, II. 669. 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.

See, e.g., the harrowing account of how he starved to death Matilda de Braose and her son (Davis, Engl. under Normans, 363). For his conduct in Ireland, see Orpen, Ireland, II. 96–105; and in Normandy, Powicke, Loss of Normandy, 190–2.

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

Stubbs, Select Charters, 270.

Commentaries, II. 59.

See Pollock and Maitland, Hist. Engl. Law, 1st ed., I. 218.

See Statute 12 Charles II., c. 24.

See Pollock and Maitland, I. 274 n.

Pollock and Maitland, I. 218.

Littleton, II. viii. s. 133. See, on whole subject, Maitland, Coll. Papers, II. 205–222.

Littleton, II. viii. s. 153.

Littleton, II. viii. s. 158. Cf. Round, Kings Serjeanties, 21.

History of Exchequer, I. 650, citing Pipe Roll of 18 Henry III.

See Littleton, II. ix. s. 159. With this may be compared the definition given in chapter 37 of Magna Carta, where John speaks of land thus held by a vassal as “quam tenet de nobis per servitium reddendi nobis cultellos, vel sagittas vel hujusmodi.”

Mediaeval England, 249–250. A similar tenure exists in Scotland under the name of “blench”—wherein the reddendo is elusory, viz., the annual rendering of such things as an arrow or a penny or a peppercorn, “if asked only” (si petatur tantum).

Round, Peerage, and Pedigree, 359.

Littleton, II. viii. s. 158.

Ibid., II. x. s. 162.

Pollock and Maitland, I. 218.

Littleton and Coke seem almost to countenance two additional tenures, viz., scutage or escuage, and castle–guard. Pollock and Maitland consider both as alternative names for knight’s service. (See I. 251 and I. 257.) The latter is discussed infra under c. 29 of Magna Carta.

Jenks, Modern Land Law, 14.

It has been well described by Pollock and Maitland (I. 294) as “the great residuary tenure.” In Scotland the “residuary tenure” is not socage but “feu” (resembling the English fee–farm). Holdings in feu are still originated by charter, followed by registration (the modern equivalent of infeftment or feudal investiture), thus preserving an unbroken connection with the feudal conveyancing of the Middle Ages.

Norman Conquest, V. 377; Hist. of William Rufus, 335–7.

Feudal England, p. 228 et seq.

All three forms of feudal obligation—service, incidents, and aids—have long been obsolete in England. The statute 12 Charles II. c. 24 swept away the feudal incidents along with the feudal system; centuries before, scutages in lieu of military service had become obsolete in the transition from the system of feudal finance to that of national finance, effected by the Crown in the thirteenth and fourteenth centuries. Feudal aids were also long obsolete, although James I., in desperate straits for money, had attempted to revive two of them. In France the feudal system, with all its burdensome obligations, remained in full vigour until it was abolished in one night by the famous decree of the National Assembly of 4th August, 1790. In Scotland, the feudal system of land tenure still exists, and certain of its incidents (e.g. reliefs and compositions or fines for alienation) are exacted at the present day.

Blackstone, Commentaries, II. 63, arranges these in a different order, and mentions as a seventh incident “aids,” which are here reserved for separate treatment.

See Pollock and Maitland, I. 296.

See infra, under c. 2, for the process whereby this evil was redressed.

R. Thomson, Magna Charta, p. 236.

Infra, c. 32.

VII. c. 17.

Pollock and Maitland, I. 247 and 250, citing Hist. Abingdon, II. 128.

See Infra, c. 43.

See Hughes’ edition, p. 133.

See Dialogus, p. 222 (citing Pipe Roll, p. 27).

Glanvill, VII. c. 9. In socage and burgage tenures no wardship was recognized; the guardianship went to the relations of the ward, and not to his feudal lord. Complicated, but equitable, rules applied to socage. The maternal kindred had the custody, if the lands came from the father’s side; the paternal kindred, if from the mother’s side (Glanvill, VII. c. 11). In plain language, the boy was not entrusted to those who had an interest in his death. Cf. infra, cc. 3, 4 and 37.

Littleton, II. iv. s. 103.

See under c. 5.

What these were may be read in the Pipe Rolls, e.g., in that of 14 Henry II. when the Bishopric of Lincoln was vacant.

See Sel. Chart., 288. Contrast Stephen’s Oxford Charter; Sel. Chart., 120–1. Cf. supra, p. 32, and infra, under c. 1.

Rotuli de oblatis et finibus, p. 354.

Rot. Claus., 37, 55.

Pollock and Maitland, I. 305.

See infra, under chapters 6, 7, and 8.

Middle Ages, II. 429.

p. 437.

The Bishop of Durham enjoyed it, so it seems to be stated in a charter of 1303 (Lapsley, Pal. of Durham, 133). But this forms no real exception; since the Bishop, as an Earl Palatine, enjoyed the regalia of a king.

See Pollock and Maitland, I. 292. From Statute of Marlborough, c. 16, primer seisin extended over serjeanty as well as knight’s service. Statute of Merton, c. 7, provided that a ward might refuse a marriage on undertaking to pay the offered price when he came of age. Under c. 8, double the value might be exacted for a secret marriage or one in fraud of the lord’s right.

Rotuli de oblatis, p. 114.

Sir Edward Coke (Coke upon Littleton, 77 A) is the original source of much confusion as to the nature of primer seisin, which he seems to have considered as a second and additional relief exacted by the Crown, amounting to the whole rent of the first year. The Popes, he further held (erroneously), were imitating this practice when they exacted a year’s rent from every newly granted benefice under name of “first fruits.” These errors have been widely followed (e.g. Thomson, Magna Charta, p. 416; Taswell Langmead, Const. Hist., 50).

See Taswell Langmead, Const. Hist., pp. 51–2; also Pollock and Maitland, II. 326.

IX. c. 8.

An aid to marry the king’s eldest sister might be taken, if not previously exacted by her father.

See infra, under chapter 12.

Thus, the Abingdon Chronicle (II. 113) speaks of “auxilia quod barones michi dederunt”; while Bracton says (Book II. c. 16, s. 8): “Auxilia fiunt de gratia et non de jure; cum dependeant ex gratia tenentium, et non ad voluntatem dominorum.”

3 Edward I. c. 36.

Fixed at 100s. by c. 2 of Magna Carta.

Cf. Pollock and Maitland, I. 381–2. One entry in the Memoranda Roll of 42 Henry III. (cited Madox, I. 615) seems to admit that the Crown could not exact more than 20s.; but in 1258 the baronial opposition would be strong in the Exchequer as elsewhere.

25 Ed. III. stat. 5, c. 11.

Some of these questions might be answered by the terms of special charters: the Hundred Rolls (1279) relate how Hugh de Plesens must go with the King for forty days at his own, and thereafter at the King’s expense. Rot. Hund., II. p. 710; cf. for France, Établissements de St. Louis, I. c. 65.

Jocelin of Brakelond, 63, cited by Pollock and Maitland, I. 250 n.

See R. Coggeshall, p. 167; the barons argued non in hoc ei obnoxios esse secundum munia terrarum suarum.

W. Coventry, II. 217.

See his letter dated 1st April, 1215, in New Rymer, I. 128.

See “unknown charter” in Appendix.

Chronicon, II. 121.

See, however, infra under c. 16.

Const. Hist., I. 632.

Madox, I. 619.

See Round, Feudal England, 262 ff., 532.

Madox, I. 658.

Pollock and Maitland, I. 247, noted this distinction under Edward; it existed, as the above–cited instance proves, under John.

Pipe Roll of Richard I., cited Madox, I. 663.

Pipe Roll of 12 John, cited ibid.

Cf. infra, under cc. 39 and 21.

Interesting details are given by Vinogradoff, English Society, 15 ff. Cf. Round, Feudal England, 277 ff.

Round, Feudal England, 237–9.

Feudal England, 277 seq.

Norgate, John Lackland, p. 122.

Norgate, John Lackland, p. 123 note, correcting Swereford’s lists in the Red Book of Exchequer. Further corrections are perhaps necessary: R. Wendover III. 173, mentions a scutage of 2½ marks in January, 1204.

See Ramsay, Angevin Empire, 390, and authorities there cited.

Cf. Norgate, John Lackland, 125.

Commune of London, 273–4.

Yet, of recent historians, Ramsay (Angevin Empire, 432) treats it briefly, and Miss Norgate (John Lackland, 163) barely notices it.

Miss Norgate (123) describes the exactions supplementing the scutages: “These scutages were independent of the fines paid by the barons who did not accompany the King on his first return to Normandy in 1199, of the money taken from the host as a substitute for its service in 1201, of the equipment and payment of the ‘decimated’ knights in 1205, and the fines claimed for all the tenants–in–chivalry after the dismissal of the host in the same year, as well as of actual services which many of those who had paid the scutage rendered in the campaigns of 1202–4 and 1206.”

See Miss Norgate, John Lackland, 210, and cf. supra, 31. For a minor grievance connected with scutage and the writ de habendo scutagio, see infra, under c. 15. The later history of scutage is outlined in Pollock and Maitland, I. 254. Cf. infra, under c. 12.

Too absolute a line must not be drawn between the three types of court. In one sense all tribunals were, or tended to become, royal courts. The king’s representatives presided in the “popular courts,” and the king received a share of the fines levied there; while, in Prof. Vinogradoff’s words (English Society, 108), “all the well–known franchises or liberties of the feudal age were chips from the block of royal authority.”

John’s Charter makes no mention of these courts, although c. 25, forbidding increase of the farms of shires, may have a bearing on the subject. Henry’s Charters of 1217 and 1225 regulate their times of meeting. Cf. infra, Part IV.

This account of the relations of the two sets of courts would receive the support of recent writers, such as Maitland and Round, as well as of the older generation, such as Stubbs and Freeman. Mr. Frederic Seebohm may be mentioned as perhaps the most weighty upholder of the opposite view, which regards the manorial courts as of earlier origin than those of hundred and shire.

Cf. “landlord.”

The stages in the process, extending from the reign of Henry I. to that of Edward I., by which royal justice encroached on feudal justice, may be studied in Maitland’s preface to Sel. Pleas in Manorial Courts, pp. liii. ff. See also Pollock and Maitland, I. 181–2.

Sometimes no fore–witnesses were required; for example, where the claim was for restoration of stolen cattle, traced by “hue and cry” to defendant’s house or byre. The presumption was here so strong as to render corroborative evidence unnecessary.

See infra under cc. 38 and 39, where lex terrae is discussed.

Details may be studied in Neilson’s Trial by Combat.

See infra, cc. 38 and 39, where ordeal and compurgation and other forms of lex are further discussed.

Cf. Thayer, Evidence, p. 8. “The conception of the trial was that of a proceeding between the parties, carried on publicly, under forms which the community oversaw.”

These stages of procedure are fully illustrated by recorded cases. Two of these, both from the reign of John, may here be cited. (1) “Hereward, the son of William, appeals Walter, the son of Hugh, of assaulting him, in the King’s peace, and wounding him in the arm with an iron fork, and giving him another wound on the head; and this he offers to prove on his body as the Court shall appoint. And Walter defends all of it by his body. And it is testified by the coroners and by the whole county that the same Hereward showed his wounds at the proper time, and has made sufficient suit. Therefore it is decreed that there should be ‘battle.’ . . . Let them come armed, a fortnight from St. Swithin’s day, at Leicester.” Sel. Pleas of Crown (Selden Society), p. 18. (2) “Walter Trenchebof was said to have handed to Inger of Faldingthorpe the knife with which he killed Guy Foliot, and is suspected of it. Let him purge himself by water that he did not consent to it. He has failed and is hanged.” Ibid., p. 75.

The relation of “recognition” to trial by jury is discussed infra, Part III., section 7.

The trend of learned opinion for the moment is towards transferring the chief share of credit for remedial changes from Henry II. to his grandfather. Prof. Haskins, too, has shown reason for holding that the younger Henry found precedents in the procedure of his Angevin father as well as of his Norman grandfather (Amer. Hist. Rev., VIII. 618). There is some evidence also that Henry II. avoided any violent breaking with the past. Mr. Davis (Engl. under the Normans, p. 283) shows Henry and his Justice Glanvill acting in a spirit friendly to the private courts. It is possible, however, to found erroneous estimates upon such items of evidence. The true inventor is the man who adapts for common use what was before exceptional: Henry II. can afford to be judged by this test. To him, rather than to Henry I., belongs the credit for revolutionizing the whole system of dispensing justice. Cf. G. B. Adams (Origin of Engl. Const., 106–7): “It is in his time that these changes are finally made and the new methods become permanently a part of the constitution.”

E.g. 34 and 39.

See infra, under cc. 24 and 45.

See infra, under chapter 54.

See injra, under chapter 36.

See Maitland, Collected Papers, II., 110–173.

Glanvill xii, 25. For a discussion of the difficulties involved in accepting Glanvill see Adams, Origin, 96.

See Brunner, Schwurgerichte, 78–80. Details are discussed infra, under c. 34.

See infra, under chapters 17 and 24.

See infra, under chapter 18.

See infra, under chapters 21 and 39.

See infra, under chapter 34.

c. 34.

c. See infra, under chapter 39.

c. 21.

c. 17.

See Dr. H. L. Cannon’s article, Amer. Hist. Rev., XX. 37. Some of his theories, however, had been anticipated (see, e.g. Prothero, S. de Montfort, 16), and others have not been substantiated.

Engl. Hist. Rev., XXVII. 1–8. Dr. R. L. Poole is also an advocate of the traditional view: see ibid., XXVIII. 444.

Ibid., XXVII. 4. Mr. Stevenson explains further that “the Anglo–Saxon writ was in its origin a letter from the King to a shire–moot, and this characteristic clung closely to the Anglo–Norman writ–charter of the twelfth century” (p. 5). He also shows how the double–faced pendant seal, in the use of which William and his sons followed the Confessor, was not derived by Edward from the Normans, who in his day used (like the Kings of France) a seal plaqué. The whole article throws much light on the diplomatics of the genesis of Magna Carta.

See Memorials of St. Dunstan (Rolls Series), p. 355.

Florence of Worcester and the Worcester version of the Chronicle agree that the Conqueror took the oath. “William of Poitiers and Guy are silent about the oath” (Freeman, Norman Conquest, III. 561, note).

Stubbs, Const. Hist., I. 328–9, and authorities there cited.

See text in Appendix. For textual criticism see Liebermann, Trans. R. H. S., VIII. 21 ff.

See Liebermann, op. cit. On the whole subject of publication of charters by Henry I., Stephen and John, see Poole, Engl. Hist. Rev., XXVIII. 444–453.

Round, Feudal England, 227.

Const. Hist., I. 331.

The use of the word “donec” is ambiguous, and might grammatically be strained to make the clause a prohibition of wardship, coupled with an endorsement of relief: the King must take nothing until the new bishop gets possession. Another interpretation would stretch the prohibition to include both wardship and relief, and indeed to include the taking of profits of any sort whatever. It has also been read as mainly a prohibition against the Crown’s permanent appropriation of “escheats” falling to a see during a vacancy. See Makower, Const. Hist. of Church, 17.

Cf. infra, under cc. 2 and 3 of 1215.

Cf. infra, cc. 3 to 6.

See Stubbs, Early Engl. Hist., 113.

See infra, cc. 26 and 27.

See Pollock and Maitland, II. 512–3. See also infra, c. 20.

See Prof. Vinogradoff, in a review of the first edition of this book, Law Quarterly Review, XXI., 250–7. See also his Growth of the Manor, 226–7, and his Engl. Society, 191.

Dialogus de Scaccario, I. c. 11.

See Charter in Appendix. For text and textual criticism, see Liebermnan, Trans. R.H.S., VIII. 21–48. On whole subject, see Vinogradoff, Law Quart., Rev., as above cited.

The discussions on the “unknown charter” (infra, p. 175) would seem however, in another sense, to leave these three links out of the chain.

Stubbs, Const. Hist., I. 345.

Round, Geoffrey de Mandeville, p. 1.

Round, Geoffrey de Mandeville, p. 6. Dr. Round, ibid., p. 438, explains that this earlier charter of Stephen was supplemented by the verbal promise recorded by William of Malmesbury, de libertate reddenda ecclesiae et conservanda.

Round, Geoffrey, 22.

Stephen was not justified in this last assertion. See Round, Geoffrey, 9.

See Bémont, Chartes, 13, and Select Charters, 135.

See supra, p. 27, and Round, Eng. Hist. Rev., VIII. 292.

The quid pro quo was conditional homage, dependent (as we learn from chapter 63) on observance of the Charter.

Const. Hist., I. 569.

Cf. Prothero Simon de Montfort, 15; Pike, House of Lords, 312.

Études de droit constitutionnel, 41.

Prof. Jesse Macy, English Constitution, 162.

Anson, Law of the Constitution, I. 14. Cf. Report on Dignity of a Peer, I. 63, which makes it both a contract and a treaty.

In strict legal theory the complete investiture of the grantee required that “charter” should be followed by “infeftment” or delivery (real or constructive) of the subject of the grant. In the case of such intangible things as political liberties, the parchment on which the Charter was written would be the natural symbol to deliver to the grantees.

See chapter 1. The grant which purports to be perpetually binding on John’s heirs, was in practice treated as requiring confirmation by his son.

Prof. Maitland, Township and Borough, p. 76, explains some of the absurdities involved: “Have you ever pondered the form, the scheme, the main idea of Magna Charta? If so, your reverence for that sacred text will hardly have prevented you from using in the privacy of your own minds some such words as ‘inept’ or ‘childish,’ etc.”

Pollock and Maitland, I. 150, emphasize this disparity. “In form a donation, a grant of franchises freely made by the king, in reality a treaty extorted from him by the confederate estates of the realm, . . . it is also a long and miscellaneous code of laws.” Cf. also Ibid., I. 658.

See Prof. Adams (Origin, 212), who has a suggestive note on “the diplomatic form of the Great Charter.”

Law Quarterly Review, XXI. 250–7.

Cf. Vinogradoff, op. cit., who cites an example from a French ordinance of 1223.

G. Lapsley, Eng. Hist Rev. XXVII., p. 118.

Cf. Vinogradoff, op. cit.

History of Law, I. 266.

Harcourt, Steward, 215.

Adams, Origin, 250.

Adams, ibid., 256.

Ibid., 150, 169, 203, 232.

Ibid., 249.

Hist. Engl. Const., Chapter XVIII.

Dr. Gneist indeed confesses this, when, in discussing the limitations of the financial power, he admits that many of these are “already comprised in the provisions touching the feudal power.”

Great Charter, vii.

Pollock and Maitland, I. 151.

Simon de Montfort, 17.

House of Lords, 9th January, 1770.

History of English Constitution, 151.

Middle Ages, II. 447.

Const. Hist., I. 570–1.

Short History, 124. Cf. Gneist, Const. Hist. (trans. by P. A. Ashworth), 253; “A separate right for nobles, citizens, and peasants, was no longer possible.” See also Gneist, Hist. of Engl. Parl. (trans. by A. H. Keane), 103, and Hannis Taylor, Engl. Const., I. 380.

Norgate, John Lackland, 233.

Middle Ages, II. 447. See, e.g. Robert Brady, A Full and Clear Answer (1683).

Dialogus, II. xiii. c.

In addition to its appearance in the two places mentioned in the text, the word “freeman” appears in five other chapters, 15, 20, 27, 30, and 39. The last three instances throw no light on the meaning of the word. It is different, however, with chapter 15, where freemen are necessarily feudal tenants of a mesne lord—that is, freeholders; and with chapter 20, where, in the matter of amercement, freeman is contrasted with villanus. Further, where men of servile birth are clearly meant, they are described generally as probi homines (e.g. in cc. 20, 29, and 48), and in one place, perhaps, c. 26, as legales homines. Chapter 44 mentions homines without any qualification. It seems safe to infer that the Great Charter never spoke of “freemen” when it meant to include the ordinary peasantry or villagers. In chapter 39 of the reissue of 1217, liber homo is clearly used as synonymous with “freeholder.” In later centuries, it is true, the “freeman” of the Charter came to be read in an ever less restricted sense, until it embraced all Englishmen.

See infra, under c. 39.

Cf. supra, p. 39.

English Constitution, I. 383.

Bishop Stubbs, Preface to W. Coventry, II. lxxi., represents the barons, in their fervour for abstract law, as actually supporting their own vassals against themselves: “the Barons of Runnymede guard the people against themselves as well as against the common tyrant.”

For details, see infra under cc. 12, 13, 33, 35, and 41. Compare with the corresponding Articles of the Barons (viz. 32, 23, 12, and 31). The alterations, slightly inimical to the towns, seem to show that the barons were more willing to sacrifice their allies’ interests than their own to John’s insistence, when the final terms were being haggled over.

See Coke, Second Institute, p. 45, “for they are free against all men, saving against their lord.” Contrast ibid., p. 27.

Cf. under c. 20 infra.

Cf. under c. 4 infra.

See under c. 25 infra.

See chapter 26 of 1217.

See chapter 35 of 1217.

Dr. Stubbs takes a different view. Admitting that there is “so little notice of the villeins in the charter,” he explains the omission on two grounds: (1) they had fewer grievances to redress than members of other classes; (2) they participated in all grants from which they were not specially excluded. “It was not that they had no spokesman, but that they were free from the more pressing grievances, and benefited from every general provision.” Preface to W. Coventry, II. lxxiii.

See infra, p. 157.

See A. F. Pollard, Henry VIII., 33 ff.

Maitland, Social England, I. 409.

Cf Gneist Const. Hist., Chapter XVIII.: “By Magna Carta English history irrevocably took the direction of securing constitutional liberty by administrative law.”

Histoire des ducs (A.D. 1220), 149–150.

Petit–Dutaillis, Louis VIII., 58. Cf. Adams, Origin, 249.

Prof. Adams (Origin, 176 n.) condenses its essence into three general rules. Prof. Maitland (Collected Papers, II. 38), from a temporary angle of observation, declares that “Magna Carta is an act for the amendment of the law of real property and for the advancement of justice.” John Lilburne (Just Man’s Justification, p. 11) was also thinking of particular clauses when he wrote, “Magna Carta itself being but a beggarly thing containing many marks of intolerable bondage.”

Pollock and Maitland, I. 152. See, however, Petit–Dutaillis, Studies Supplementary, 143 (criticising Pollock and Maitland): “That again, it seems to us, is to assign too glorious a rôle to the baronage of John Lackland and to its political conceptions, which are childish and anarchical. The English nobility of that day had not the idea of law at all.”

A. V. Dicey, Law of the Constitution, Part II.

Adams, Origin, 251.

Const. Hist., I. 571. Cf. Ibid., I. 583, “The act of the united nation, the church, the barons, and the commons, for the first time thoroughly at one.” Who were “the commons” in 1215? Cf. also Prothero, Simon de Montfort, 18, “The spirit of nationality of which the chief portion of Magna Carta was at once the product and the seal.”

See infra, under c. 14.

The possibility that the movement leading to the Great Charter may have also helped forward the growth of the idea of a separate national Church is discussed infra, under c. one.

Supra, p. 109.

Adams, Origin, 250.

See infra, c. 61, for details.

This is the view of Pike, House of Lords, 204. See infra, c. 21.

Magna Carta has been described, in words already quoted with approval, as “an intensely practical document,” Maitland, Social England, I. 409; but this requires qualification. If it was practical in preferring condemnation of definite grievances to enunciation of philosophical principles, it was unpractical in omitting machinery for giving effect to its provisions.

Except in so far as affected by cc. 12 and 16.

Mr. Prothero estimates more highly the constitutional value of Magna Carta: “The constitutional struggles of the following half–century would to a great extent have been anticipated had it retained its original form.” Simon de Montfort, 14.

As early as 1231 the “carta de Runemede” was cited in a plea. See Bracton’s Notebook, No. 513. See also No. 1478, dating from 1221; others in Index.

Extravagant estimates of its value will readily suggest themselves. Sir James Mackintosh (History of England, I. 218, edn. of 1853) declares that we are “bound to speak with reverential gratitude of the authors of the Great Charter. To have produced it, to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, etc., etc.”

Edmund Burke (Works, II. 53) credits Magna Carta with creating the House of Commons! “Magna Charta, if it did not give us originally the House of Commons, gave us at least a House of Commons of weight and consequence.” As will be shown in the sequel, chapter 14 of the Great Charter (the only one bearing on the subject) is in reality of a reactionary nature, confining the right of attendance at the commune concilium to the freeholders of the Crown.

The source of this error was the identification of jury trial with the judicium parium of c. 39. q.v.

For the origin of the jury see Brunner, Schurgerichte (1871): Haskins, Am. His. Rev., VIII. 613 ff., traces the steps made towards the civil jury in Normandy, particularly under Henry’s father, Geoffrey.

The theory now generally accepted that the origin of trial by jury must be sought in procedure introduced by Norman dukes, not in any form of popular Anglo–Saxon institutions, is ably maintained by Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer, Evidence, p. 7. Undoubtedly their conclusions are in the main correct; but trial by jury may have had more than one root, and appreciation of the Norman contribution need not lead to neglect of the Anglo–Saxon. See, e.g. Hannis Taylor, English Constitution, I. 308 and I. 323; Vinogradoff, Growth of the Manor, 193: ‘something more than a Norman device.”

See supra, p. 86.

See Pollock and Maitland, I. 131. It was part of Henry’s policy to substitute indictment by a representative jury for the older appeal by the wronged individual or his surviving relatives. The older procedure, however, was not completely abolished: its continuance and its unpopularity may be traced in chapter 54 of Magna Carta, q.v.

Chapter 38 of Magna Carta, according to a plausible interpretation of an admittedly obscure passage, seems to insist on the necessity of such an accusation by the jury:—“non . . . sine testibus fidelibus ad hoc inductis.”

For details see infra under chapter 36, and supra, p. 89.

The three Petty Assizes are mentioned by name in c. 18, q.v.

See Annals of Waverley, p. 286.

For the question of the Regency and the position of England as a fief of Rome, see Norgate, Minority, 10–62; Turner, Trans. R.H.S. (1904), 268 ff. In a plea roll of 1237 (Bracton’s Notebook, No. 1219) Gualo is described as “quasi tutor domini regis et custos regni.”

The cause for wonder is rather how few changes required to be made. “It is, however, by no means the least curious feature of the history, that so few changes were needed to transform a treaty won at the point of the sword into a manifesto of peace and sound government.” Stubbs, Const. Hist., II. 21.

Minority, 15.

See Petit–Dutaillis, Louis, 130–1.

Ibid., 181.

In the Appendix, an attempt is made to show at a glance the main differences between the various Great Charters.

This classification takes no account of alterations merely verbal or inserted to remove ambiguities, e.g. cc. 22, 28, and 30 of the original Charter.

See, however, Adams (Origin, 261; 220), who maintains that the omission was not intended to leave the Crown a freer hand (whatever might be the practical result).

Are these omissions mainly accidental? Are they the result of some influence at work hostile to English ecclesiastics? Or, are they due to the personal wishes and ambitions of Gualo? The Legate may have preferred to keep the patronage of vacant sees in his own hands rather than confirm the rival rights of chapters. It is notable that when John made his peace with Rome, no suggestion of “free elections” was hinted at, whereas that concession was the essence of his charters to the English Church. Again, freedom of intercourse with Rome would facilitate appeals from the Legate to the Pope, and so diminish Gualo’s authority. In the months to follow, Gualo exercised almost despotic power over the Church, excommunicating all who supported Louis. On 27th October, 1217, he entered London, “went to the church of St. Paul, . . . and he put in new canons; and the old ones who had chanted the service in defiance of him he deprived of all their benefices.” Hist. des ducs, 206. See also Adams, Origin, 258. Honorius had conferred on Gualo authority to appoint to vacant sees and benefices; see Bouquet, XIX. 623.

Minute points of difference, which are numerous, will be discussed under appropriate chapters of the Commentary. Cf. Norgate, Minority, 10–14; Adams, Origin, 256–7, who holds these changes to strengthen the theory “that in the original charter the barons intended to state the law accurately and were not trying to take unjust advantage of the King.”

Dr. Stubbs propounds the theory that this reissue of 1216 represents a compromise whereby the central government, in return for increased taxing powers, allowed to the feudal magnates increased rights of jurisdiction. He gives, however, no reasons for this belief, either in Select Charters, p. 339, or in his Constitutional History, II. 27. The Crown reserved a freer hand in taxation, but there seems no evidence that feudal justice gained ground against royal justice in 1216, not already gained in 1215.

It is unnecessary to invent a catastrophe to account for the loss of John’s seal. Blackstone (Great Charter, xxix.) says, “King John’s great seal having been lost in passing the washes of Lincolnshire.”

On pp. 69–73. Text is given in Early Statutes of Ireland (Rolls Series, H. F. Berry), 5–19, and in Gilbert’s Hist. and Mun. Docs. of Ireland, 65–72.

New Rymer, I. 145.

Rot. Pat., I. 31. Cf. Norgate, Minority, p. 93: “On 6th February, 1217, a copy of the Charter was sent to Ireland with a letter in the King’s name addressed to all the King’s faithful servants in Ireland, expressing his desire that . . . they and their heirs should, of his grace and gift, enjoy the same liberties which his father and he had granted to the realm of England.” This was the Marshal’s policy.

Davis, Engl. under Normans, 392.

Stubbs, Const. Hist., II. 25.

Petit–Dutaillis, Louis VIII., 171.

Wendover, IV. 31–32; cited Norgate, Minority, 59, where full details are given.

Pipe Rolls, 2 and 3 Henry III., cited Petit–Dutaillis, 177. Miss Norgate (Minority, 85) gives the rate per incuriam as “two shillings.”

Martene and Durand, Thesaurus Novus Anecdotorum (1717), I. 858, cited Norgate, Minority, 59. Blackstone thinks that under this clause the original of the Articles of the Barons, captured by Louis with other national archives, was restored and deposited at Lambeth Palace until the seventeenth century. See Great Charter, xxxix.

The Charter of Liberties of 1217, found among the archives of Gloucester Abbey and now in the Bodleian Library at Oxford, still bears the impression of two seals—that of Gualo in yellow wax, and that of the Regent in green. See Blackstone, Great Charter, p. xxxv. The existence of the separate Forest Charter was only surmised by Blackstone, Ibid., p. xlii; but, shortly after he wrote, an original of it was found among the archives of Durham Cathedral. For an account of this and of its discovery, see Thomson, Magna Charta, pp. 443–5. This Forest Charter bears the date 6th November, 1217, and that, in itself, affords presumption that the Charter of Liberties (undated) to which it forms a supplement was executed at the same time. M. Bémont accepts this date; see his Chartes, xxviii., and authorities there cited. Blackstone, Great Charter, xxxix., gives the probable date as 23rd September. Dr. Stubbs gives 6th November in Const. Hist., II. 26; and both dates alternatively in Sel. Chart., 344. Prof. Lawlor, Engl. Hist. Rev., XXII. 514–6, contended for two independent issues, one of each date; but Prof. Powicke’s researches, Eng. Hist. Rev., XXIV. 232, prove that there is only one genuine charter of that year, dated as in the text.

Details are discussed infra, under appropriate chapters of John’s charter. The points in which this reissue differs from earlier and later charters are shown in the Appendix, in the footnotes to the text of 1225.

Origin, 260.

Pollock and Maitland, I. 250 n., suggest that this chapter absolved undertenants from the obligation of personal attendance in the army.

Mr. Hubert Hall (Eng. Hist. Rev., IX. 344) takes a different view, considering that a reduction of scutages to the old rate of Henry II. was impossible; he speaks of “the astounding and futile concession in c. 44 of the charter of 1217.” The clause is neither astounding nor futile if we regard it as a promise by Henry III. that he would not exact more than two marks per fee without consent, and if we further note that it was the practice of his reign to ask such consent from the Commune Concilium for scutages even of a lower rate. A levy of 10s., for example, was granted by a Council in 1221. See Stubbs, Const. Hist., II. 33.

M. Paris, 581–2; Sel. Chart., 369.

Sel. Chart., 129.

18 Edward I., also known as Westminster III.

7 Edward I., also known as the Statute de religiosis.

See Pollock and Maitland, I. 314.

See Rot. Claus., I. 377.

Stubbs, Const. Hist., II. 32.

Cf. Adams, Origin, 258–260.

New Rymer, I. 147, 150.

See text in Appendix.

See Norgate, Minority, 102; Stubbs, Const. Hist., II. 30. Annals of Waverley, 290, speak of a reissue of the charters about this date; but this probably results from confusion with what happened a year earlier.

New Rymer, I. 168; Rot. Claus., I. 569.

R. Wendover, IV. 84, who dates the demand a year earlier. Miss Norgate’s chronology is here followed (Minority, 215 n.). The request would be a natural corollary to the King’s coming of age. There may have been special reasons for uneasiness, e.g. the suspicions aroused by the recent inquest, the resumption of royal castles from their former wardens, and the Crown’s need of increased sources of taxation. See Adams, Origin, 281 n.; Turner, Trans. R.H.S., I. 205 ff. Miss Norgate (Ibid. 215) suggests that Langton desired some modification of the terms of the charter of 1217.

R. Wendover, Ibid.

Miss Norgate (Minority, 262), for reasons not fully explained, speaks of this purchasing of admitted rights by payments of hard cash as an “irretrievable blunder.” Does she not neglect, however, the effect of the legal doctrine of “valuable consideration” and the force underlying Brewer’s argument that earlier charters were voidable because granted under duress?

Dr. Stubbs thinks that in avoiding one danger, a greater was incurred. “It must be acknowledged that Hubert, in trying to bind the royal conscience, forsook the normal and primitive form of legislative enactment, and opened a claim on the king’s part to legislate by sovereign authority without counsel or consent.” (Const. Hist., II. 37.) This seems to exaggerate the importance of an isolated precedent, the circumstances of which were unique. The confirmation was something far apart from an ordinary “legislative enactment.” It had been asked and paid for.

A few minor alterations, such as the omission of the clause against unlicensed castles (now unnecessary) and some verbal changes need not be mentioned. A list of these is given by Blackstone, Great Charter, l.

See Blackstone, Ibid., xlvii. to l.

Ibid.

One slight exception should be noted. In one point of detail a change had occurred between 1225 and 1297; the rate of relief payable from a barony had been reduced from £100 to 100 marks. See infra, under chapter 2.

A bull of Gregory IX., dated 13th April, 1227, confirmed this. See Blackstone, Great Charter, li., and Stubbs, Const. Hist., II. 39.

See Powicke, Eng. Hist. Rev., XXIII. 221.

R. Wendover, IV. 140, is apparently the source of the error. See Norgate, Minority, 266 n.

Sel. Chart., 383.

See Rot. Claus., II. 169. The best account is in Turner’s Select Pleas of the Forest, pp. xcix. to cii., who gives a full and convincing account of Henry’s procedure and motives. “The king neither repudiated the Charter of the Forest nor annulled the perambulations which had been made in his infancy. He merely corrected them after due inquiry.” See also Adams, Origin, 283 n.

M. Paris, 435; Sel. Chart., 326–7.

Its facsimile is given in Statutes of the Realm; its text in Sel. Chart., 365–6.

By Dr. George Neilson, Juridical Review, XVII. 137.

Henry I.’s charter was also described as “Magna Carta” but not till the thirteenth century. Leibermann, Trans. R.H.S., VIII. 21.

M. Paris, 581–2; Sel. Chart., 369–370. Bracton’s Notebook (see its Index) mentions the Charter eight times under various descriptions, but never as the Great Charter.

Blackstone, Great Charter, 70–72; Stubbs, Sel. Chart., 373.

Second Institute, p. 1.

Many further details will be found in Bémont, Chartes, xxx.–lxx., and authorities there cited.

The best proof of this will be found in a comparison of Magna Carta with the statute of Marlborough, and the chief statutes of Edward’s reign, notably that of Westminster I.

The doctrine that the Commune Concilium should have some voice in the appointment of Ministers had been acted upon on several occasions even in the reign of Henry III. See Stubbs, Const. Hist., II. 41.

For methods of publishing Great Charters see R. L. Poole, Eng. Hist. Rev. XXVIII. 444 (July, 1913); and infra under c. 62.

The accompanying letter, dated 10th May, 1630, is also preserved in the British Museum, as “Cotton, Julius, C. III. Fol. 191.”

These are carefully noted among the variations described by the editors of the Charters of Liberties forming Part I. of the first volume of the Statutes of the Realm. These addenda are (1) at the end of c. 48, “per eosdem, ita quod nos hoc sciamus prius, vel justiciarius noster, si in Anglia non fuerimus,” providing that the King should receive intimation of all forest practices branded as “evil” before they are abrogated; (2); two small additions, near the beginning of c. 53, (a), “et eodem modo de justicia exhibenda,” and (b) “vel remansuris forestis”; (3) in c. 56, these four words, “in Anglia vel in Wallia”; and (4) in c. 61 the words “in perpetuum” after “gaudere.” In the 2nd British Museum MS. three of these addenda appear at the foot, viz. (1), (2a) and (2b); but the words of (3) and (4) are incorporated in the body of that MS.

Reproductions of this are sold at the British Museum for 2s. 6d.

“The fold and label are now cut off, though it is said once to have had slits in it for two seals, for which it is almost impossible to account; but Dr. Thomas Smith, in his Preface to the Cottonian Catalogue, Oxford, 1695, folio, states that they were those of the barons” (Thomson, Magna Carta, 425). The facsimile published by the Trustees of the British Museum shows slits for three seals.

See Isaac D’Israeli, Curiosities of Literature, I. 18, and Thomson, Magna Carta, 424.

The engraving was executed to their order by James Basire.

See James Tyrrell, History of England, Vol. II. 821 (1697–1704).

Blackstone, Great Charter, p. xvii.

See Report (1800), p. 341.

Dodsworth, Historical Account of the Cathedral, 202.

It is unnecessary to treat in detail of the copies of the charter not authenticated by John’s Great Seal, though some of these are of value as secondary authorities. The four most important are (a) a copy appearing in the Register of Gloucester Abbey, (b) the Harleian MS., British Museum No. 746 (which also contains the names of the twenty–five Executors in a hand probably of the reign of Edward I.). (c) in the Red Book of the Exchequer. There is also (d) an early French version, printed in D’Achery, Spicilegium, Vol. XII. p. 573, together with the writ of 27th September addressed to the Sheriff of Hampshire. See Blackstone, Great Charter, p. xviii., and Thomson, Magna Carta, pp. 428–430.

Thomas Madox, Firma Burgi (1726). On p. 45, Madox refers only to the Inspeximus of Edward I.

Robert Brady, Complete History of England, p. 126 of Appendix to Vol. I. (1685), takes his text of the Charter from Matthew Paris “compared with the manuscript found in Bennet College Library,” i.e. Corpus Christi, Cambridge.

James Tyrrell, History of England (1697–1704). In p. 9 of Appendix to Vol. II. p. 821, Tyrrell prints a text of John’s Charter founded on that of M. Paris, collated with those two originals.

Henry Care, English Liberties in the Freeborn subjects’ inheritance; containing Magna Charta, etc. (1719), p. 5. The first edition, with a somewhat different title, is dated 1691.

Strangely enough, Sir Thomas Duffus Hardy, so recently as 1837, in publishing his Rotuli Chartarum (Introduction, p. ii. note 5) declared that no original of John’s Charter existed; “notwithstanding all the care taken by multiplication of copies, it is singular that no contemporary copy of King John’s Magna Carta has yet been found.” The Lincoln MS. he dismissed as “certainly not of so early a date.” He further reasserts the fallacy, exposed by Blackstone eighty years earlier, that John had issued a separate Carta de Foresta.

Thomson, Magna Carta, 422.

See Burnet’s Own Time, I. 32 (edition of 1724).

Reproductions are sold by the British Museum at 2s. 6d.

Cf. supra, p. 39, and Blackstone, Great Charter, xvii.

See the account by Mr. Hubert Hall, Eng. Hist. Rev., IX. 326.

Teulet, Layettes du Trésor des Chartes, I. p. 423 (1863).

See text in Appendix.

Eng. Hist. Rev., VIII. 288–294.

Ibid., IX. 117–121.

Ibid., IX. 326–335.

Wendover, III. 298, and cf. supra, 33.

Eng. Hist. Rev., XX. 719 ff.

Studies Supplementary, 120 ff.

Historische Vierteljahrschrift, 1910, 449–458.

R. Wendover, III. 302–318.

This date is given by Bémont, Chartes, lxxi., but Robert Watt in his Bibliotheca Britannica, Thomson, Magna Carta, 450, and Lowndes, Bibliographer’s Manual, 1449, all give the date of the earliest edition as 1514.

The substance of this admirable edition, now unhappily scarce, has been reproduced in the same author’s Tracts (1762).

Published in 1840 (edited by F. Michel).

Supra, p. 123.

G. le Maréchal, 15031 ft.

See The Mirror of Justices (edited for the Selden Society by W. J. Whittaker), Introduction (by Maitland), xxiii. to xxiv.

See The Mirror of Justices, xxxvii. Cf. xlviii.

See Dictionary of National Biography, XI. 243.

Introduction, p. ii.

P. 375 of work cited.

P. 57 of work cited.

This is the title of the English translation by Mr. W. E. Rhodes (1908) of the Appendices to the first volume of a French version of Stubbs’ Const. Hist., published in 1907.

Of the books and articles containing incidental references to Magna Carta, it is unnecessary to speak; those containing comments on isolated chapters or particular aspects are mentioned infra in their appropriate places. The late Mr. Harcourt’s His Grace the Steward and Trial of Peers contains a vigorous commentary on chapter 39, and his article “The Amercement of Barons by their Peers” (Eng. Hist. Rev., XXII. 732), on chapter 21. The first edition of the present work (published, 1905) evoked a number of valuable contributions to various aspects of the subject; among these may be mentioned Vinogradoff, Law Quart. Rev., XXI. 250–7; Liebermann, Historische Vierteljahrschrift, 1907, 231–5; Bémont, Revue Historique, 1907, 122–4; Petit–Dutaillis, Le Moyen Age, 1906, 277–282; H. W. C. Davis, Eng. Hist. Rev. (1905), XX. 719–726; Neilson, Juridical Review, June, 1905, 128–144. See also Jurid. Rev., March, 1905, 61; and Law Notes (New York), August, 1905, 94–6 for some legal decisions, Scotch and American respectively.

The division of Magna Carta into a preamble and sixty–three chapters is a modern device for which there is no warrant in the Charter. Cf. supra, 170. No title or heading precedes the substance of the deed in any one of the four known originals, but on the back of the Lincoln MS. (cf. supra, 167) these words are endorsed; “Concordia inter Regem Johannem et Barones pro concessione libertatum ecclesie et regni Anglie.” The form of the document is discussed supra, 104–9. The text is taken from that issued by the Trustees of the British Museum founded on Cottonian version No. 2. Cf. supra, 166.

The sentence is concluded in chapter one (see infra)—the usual division, here followed, being a purely arbitrary one.

The phrase “nobiles viri” was not used here in any technical sense; the modern conception of a distinct class of “noblemen” did not take shape until long after 1215. Cf. what is said of “peerage” under cc. 14 and 39.

Coke (Second Institute, pp. 1–2) errs in attributing the change to John.

Aquitaine included Poitou and Gascony with the four dependent counties of Angoulême, La Marche, Limoges and Perigord. See Norgate, Minority, 132.

See Giry, Manuel de diplomatique, 798.

Henry VIII. was the first to call himself “King of Ireland”—a singular proof “of the success of Henry’s policy.” Gairdner, Lollardy, ii. 473.

Cf. supra, p. 95. See Orpen, Ireland, I. 300 and II. 31, where it is pointed out that William Marshal refused to support his King against his “lord.” For other theories, see Round’s Mandeville, 70; Rössler’s Matilde, 291–4 and 424; Ramsay’s Foundations, II. 403; Davis, England under Normans, 170.

Stubbs, Early English History, p. 122, seems to be in error here.

See Charter in Appendix.

Matilde, passim.

See, however, Chadwick, Anglo–Saxon Institutions, p. 355 ff.

Dr. Stubbs, Const. Hist., I. 582, gives the motive of thus naming them as “the hope of binding the persons whom it includes to the continued support of the hard–won liberties.” Those named were all moderate men. M. Paris (Chron. Maj., II. 589) describes them as “quasi ex parte regis.” Cf. Annals of Dunstable, III. 43. The neutrality of the prelates is proved by other evidence. (1) C. 62 gave them authority to certify by letters testimonial the correctness of copies of the Charter. (2) The 25th of the Articles of the Barons left to their decision whether John should enjoy a crusader’s privileges; while c. 55 gave Langton a special place in determining what fines were unjust. (3) The Tower of London was placed in the custody of the archbishop. (4) Copies are preserved of two protests by the prelates in favour of the King. See Appendix.

Cf. supra, 36; for biographical information see authorities there cited.

Second Institute, 1 n.

Cf. supra, 40.

Some editions place here the division between c. 1 and c.

Cf. supra, p. 39.

See their Charters in Appendix.

See Makower, Const. Hist. of the Church, 26, 315.

Cf. supra, p. 97.

Cf. Pollock and Maitland, I. 74.

Cf. supra, pp. 102–3.

For explanation see infra, c. 18.

Mr. J. H. Round (Geoffrey de Mandeville, 3), speaking of Stephen’s “oath” to restore the church her “liberty,” describes this as “a phrase the meaning of which is well known.” If “well” known, it was known chiefly as something which baffled definition, because churchmen and laymen could never agree as to its contents, while it tended also to vary from reign to reign. Mr. Round attempts no definition. Sir James Ramsay (Angevin Empire, p. 475), writing of the phrase as used in John’s Charter, is less prudent. “It would relieve the clergy of all lay control, and of all liability to contribute to the needs of the State beyond the occasional scutages due from the higher clergy for their knights’ fees.” This definition would not have satisfied John.

Cf. supra, p. 33. The text will be found in Statutes of the Realm, I. 5, and in New Rymer, I. 126–7. It was confirmed by Innocent on 30th March, 1215. See Potthast, Regesta pontificum romanorum, No. 4963.

Cf. supra, p. 141.

Cf. Prothero, Simon de Montfort, p. 152. “The English church was indeed less independent of the king in 1258 than in 1215, and far less independent of the Pope than in the days of Becket.”

See supra, pp. 104 and 114. For the meaning of “freeman” and Coke’s inclusion of villeins under that term for some purposes but not for others, see infra, cc. 20 and 39.

Cf. supra, 154, where the bearing of these words is discussed.

Cf. supra, p. 59.

At an early date, in the midland counties, the thegn with more than six “manors” paid £8 of relief to the King; the thegn with six or fewer paid three marks to the sheriff. See Domesday Book, I. 280, b (Derby and Notts). Contrast Ibid., I. 56, where, however, relief seems to be confused with heriot.

Glanvill’s words (IX. c. 4) are ambiguous. He distinguishes three cases: (a) the normal knight’s fee, from which 100s. was due as relief (whether this extends to fees of Crown–tenants does not appear); (b) socage lands, from which one year’s rent might be taken; and (c) “capitales baroniae” were left subject to the King’s discretion. Now “barony” was a loose word: baronies, like barons, might be small or great (cf. infra, c. 14); all Crown fiefs being “baronies” in one sense, but only certain larger “honours” being so reckoned in another. Glanvill leaves this vital point undetermined, but Dialogus de Scaccario (II. x. E. p. 135 and II. xxiv. p. 155) supports the distinction between Crown–tenants and tenants of mesne lords: only the latter had their reliefs fixed. Madox (I. 315–6) cites from Pipe Rolls large sums exacted by the Crown: in one case £300 was paid for six fees—or ten times what a mesne lord could have exacted. (Pipe Roll, 24 Henry II.) There is further evidence to the same effect: where a barony had escheated to the Crown, reliefs of the former under–tenants would in future be payable directly to the Crown; but it was the practice of Henry II. (confirmed by c. 43 of Magna Carta, q.v.) to charge, in such cases, only the lower rates exigible prior to the escheat. A similar rule applied to under–tenants of baronies in wardship; see the case of the knights of the see of Lincoln in the hands of a royal warden in Pipe Roll, 14 Henry II. cited by Madox, ibid.). It would thus appear that all holders of Crown fiefs (not merely barones majores) were in Glanvill’s day still liable to arbitrary extortions in name of reliefs. The editors of the Dialogus (p. 223) are of this opinion. Pollock and Maitland (I. 289) maintain the opposite—that the limitation to 100s. was binding on the Crown as well as on mesne lords.

Madox, I. 316.

Ibid., I. 317.

Ibid., I. 318.

Ibid., I. 321.

Apparently its first appearance is in the Inspeximus of 10th October, 1297. See Madox, 318; Pollock and Maitland, I. 289; Bémont, Chartes, p. 47.

See note by editors of Dialogus, p. 238; Poole, Exchequer, 16, 170. The barons in 1258 (Sel. Charters, 382) protested against this, and the practice was discontinued.

Cf. supra, pp. 54–6.

It is possible to argue that the custom as to socage was already too well settled to require confirmation: Glanvill (IX. c. 4) stated the relief for socage at one year’s value. It is not clear, however, whether this restriction applied to the Crown. Further, no custom, however well established, was safe against John’s greed.

See Littleton, Tenures, II. viii. s. 154, and Madox, I. 321, who cites the case of a certain Henry, son of William le Moigne, who was fined in £18 for the relief of lands worth £18 a year held “by the serjeanty of the King’s Lardinary.”

Cf. supra, p. 57. See Round, King’s Serjeanties, p. 33.

Engl. Soc. in Eleventh Century, pp. 42–48.

Engl. Soc. in Eleventh Century, pp. 49–50.

See Pollock and Maitland, I. 262, and authorities there cited. “An honour or barony is thus regarded as a mass of lands which from of old have been held by a single title.” See also Pike, House of Lords, pp. 88–9.

This change was not complete in 1215, but Magna Carta, when it uses “barones” alone, seems to refer to “barones majores” (see cc. 2, 21, 61). Cf. infra under c. 14.

Dialogus, II. xxiv.

New Rymer, I. 107.

Madox, I. 216 ff. As the Exchequer, from the time of Edward I., exacted 100 marks from a barony and 100s. from a knight’s fee, the false equation of extent “1 barony = 13⅓ knights’ fees” was deduced. Coke (On Littleton, IV. s. 112, and Second Inst., 7) is sometimes credited with originating this error, but it appears in Modus tenendi Parliamentum (Sel. Chart., 503). To suit the proportion given in John’s Charter the equation would need to be “1 barony = 20 fees.” There is, of course, no fixed equation; baronies might be of any size; we read of land held “in baronagio per servitium feodi unius militis” (Northumberland Eyre Roll, 7 Ed. I.; Surtees Soc., 88, p. 327).

In the Inspeximus of Edward I., however, comitatus (earldom) displaces the baronia comitis of the text. See Statutes of Realm, I. 114.

See Pike, House of Lords, 57.

See Pike, House of Lords, 63. This term comitatus was a word of many meanings. Originally designating the “county” or “the county court,” it came to mean also the office of the earl who ruled the county, and later on it might indicate either his titular connection with the shire, his estates, his share of the profits of justice, or his rank in the peerage.

This was affirmed in 1164 by Article 11 of the Constitutions of Clarendon, which stipulated that each prelate should hold his lands sicut baroniam.

Sicut per barones meos disposui. The writ is given in Heming’s Cartulary, I. 79–80, and reprinted by Round, Feudal England, 309.

See supra, p. 98.

Where there had already been a wardship, the relief was thus the price paid by the heir in order to escape from the heavy hand of the King, and was therefore known as “ousterlemain.” Taswell–Langmead (Engl. Const. Hist., 51 n.) states the amount at half a year’s profits. He cites no authorities, and is probably in error. Dialogus, II. x. E. p. 135, forbids relief to be taken, when wardship had been exercised per aliquot annos.

See chapter 3 of 1216, which stipulates that no lord shall have wardship “antequam homagium ejus ceperit.” See Coke, Second Institute, 10. Cf. Adams, Origin, 204, on “homage as a recognition of title.”

Coke, Ibid., p. 12, makes a subtle and unwarranted distinction depend on whether the minor was made a knight before or after his ancestor’s death. The proviso, he argues, does not apply to the former case, because lands cannot “remain” in wardship if they were not in it before.

See Coke on Littleton, Book II. c. iv. s. 112; and cf. infra, cc. 37 and 43 for the “prerogative wardship” of the Crown.

The nature of wardship is more fully explained supra, pp. 61–2.

E.g. Taswell–Langmead, Eng. Const. Hist., p. 51 n.

“This, it would seem, was the old English rule;” see Ramsay, Foundations of England, II. 230.

It is a common error to suppose that this Assize restores wardship to the lord.

See Pipe Roll, 29 Henry II., cited Madox, I. 483.

E.g. Coke, Second Institute, p. 13.

VII. c. 10.

Orpen, Ireland, II. 203.

II. folio 87.

See Appendix.

Another way of “wasting” villeins was by tallaging them excessively. (For meaning of tallage cf. infra, c. 12.) Thus Bracton’s Note Book reveals how one guardian destruxit villanos per tallagia (v. case 485); how another exiled or destroyed villeins to the value of 300 marks (case 574); how a third destroyed two rich villeins so that they became poor and beggars and exiles (case 632). Cf. also case 691. Daines Barrington, writing towards the middle of the eighteenth century, went too far when he inferred from this passage “that the villeins who held by servile tenure were considered as so many negroes on a sugar plantation” (Observations, p. 7).

Edward I. c. 21.

Edward I. c. 5.

Coke, Second Institute, p. 13, enunciates a doctrine at variance with this statute, holding that the heir who suffered damage could not, on coming of age, obtain triple damages, or indeed any damages at all, if the King had previously taken amends himself. Coke further maintains that even after waste, the person of the heir was left in the power of the unjust guardian, explaining that when the Charter took away the office “this is understood of the land, and not of the body.”

This term is explained, c. 47. infra.

It is difficult to distinguish between vivarium and stagnum. By Coke, in the Statutes at large, vivarium is translated “warren”; but that word has its Latin form in warrena. Westminster II. (c. 4) speaks of stagnum molendinæ (a millpond). Statute of Merton (c. 11) refers to poachers taken in parcis et vivariis.

Discussed infra, under c. 20.

Cf. Blackstone, Great Charter, lxxviii.

Cf. infra, under c. 18.

See R. S. Gardiner, Documents, p. 207.

See infra, under c. 37, for prerogative wardship.

Article 11: see Select Charters, 139.

Cited by editors of the Dialogus, p. 223.

Cf. under c. 43 infra.

C. 46 of Magna Carta (see infra) confirmed barons, who had founded abbeys, in their rights of wardship over them during vacancies.

See supra, 26–3.

Cited Madox, I. 565.

See Rotuli de Oblatis et Finibus, p. 37, and Pipe Roll, 2 John, cited by Madox, I. 515.

Pipe Roll, 4 John, cited by Madox, I. 324.

See infra, c. 59.

20 Henry III. c. 6.

Tenures, II. iv. s. 109.

See Petition of the Barons (Sel. Charters, 383). Gradually the conception of disparagement expanded, partly from the natural development of legal principles and partly from the increased power of the nobility. Coke commenting on Littleton (Section 107) mentions four kinds of disparagements: (1) propter vitium animi, e.g. lunatics; (2) propter vitium sanguinis, villeins, burgesses, sons of attainted persons, bastards, aliens; (3) propter vitium corporis, as those who had lost a limb or were diseased or impotent; and (4) propter jacturam privilegii, or such a marriage as would involve loss of “benefit of clergy.” The last clause had no connection with the law as it stood in 1215. Marriage with a widow or widower was deemed by the Church in later days an act of bigamy, and involved loss of benefit of clergy, until this was remedied by the Statute 1 Edward VI. c. 12 (sect. 16).

II. folio 88.

For further information on the age at which marriage could be tendered to a ward, and the penalties for refusing, see Thomson Magna Carta, pp. 170–171.

Cf. supra, 63–5.

See Pollock and Maitland, II. 422–3. The ceremony at the church door, when resorted to, was no longer an opportunity of giving material proof of affection to a bride, but a means of cheating her out of what the law considered her legitimate provision, by substituting something of less value.

Pollock and Maitland, II. 419.

See Pollock and Maitland, II. 15, 16. Liberum maritagium, considered as a tenure, has various peculiarities. The lady’s husband became the feudal tenant of her father. The issue of the marriage were heirs to the lands and would hold them as tenants of the heir of the donor. For three generations, however, neither service nor homage was due. After the third transmission, the land ceased to be “free”; the peculiar tenure came to an end; the new owner was subject to all the usual burdens.

Second Institute, p. 16.

See supra, p. 214.

Observations, pp. 8–10.

E.g. Thomson, Magna Carta, p. 172. Dr. Stubbs has his own reading of maritagium, namely, “the right of bestowing in marriage a feudal dependant.” See Glossary to Sel. Charters, p. 545. The word may sometimes bear this meaning, but not in Magna Carta.

See his History of English Law, I. 121 (3rd ed.).

Cf. Ibid., I. 242, where Reeves rightly points out that Coke is mistaken, although he fails to notice the distinction drawn, in the passage criticized, between the Crown and mesne lords.

See Coke, Second Institute, p. 16.

See Glossary to Select Charters, p. 539: “firewood; originally provision or stuff generally.”

Several instances of the wider use may be given. Bracton (III. folio 137) explains that, pending the trial of a man accused of felony, his lands and chattels were set aside by the sheriff; meanwhile the imprisoned man and his family received “reasonable estovers.” (Cf. infra, c. 32.) The Statute of Gloucester (6 Edward I. c. 4) mentions incidentally one method of stipulating for a return from property alienated, viz., estovers of meat or clothes. Blackstone, again (Commentaries, I. 441), applies the name estovers to the alimony made to a divorced woman “for her support out of the husband’s estate.” Sometimes the word was more restricted. Coke (Second Institute, p. 17) says, “when estovers are restrained to woods, it signifieth housebote, hedgebote, and ploughbote,”—that is, timber for repairing houses, hedges, and ploughs. Apparently it had an even more restricted scope when used to describe the right of those who dwelt in the King’s forest, viz., to take dead timber as firewood. (Cf. infra, c. 44.)

Second Institute, p. 17.

There seems no reason to restrict her estovers to a right over “commons,” in the sense of pastures and woods held “in common” by her late husband and the villeins of his manor. Some such meaning, indeed, attaches to the phrase “dower of estovers” met with in later reigns, e.g. in Year Book of 2 Edward II. (Selden Society), p. 58, where it was held that such a right (claimed as a permanent part of dower) did not belong to a widow.

See Pipe Roll of 16 John, cited Madox, I. 491.

See Pipe Roll of 6 John, cited Madox, I. 488.

See Pipe Roll of 6 John, cited Madox, I. 488.

New Rymer, I. 91.

See New Rymer, I. 92.

See Coke, Second Institute, 18.

See supra, pp. 73–6.

The Dialogus de Scaccario, II. xiv., half a century earlier, laid down rules even more favourable to the debtor in two respects: (1) the order in which moveables should be sold was prescribed; and (2) certain chattels were absolutely reserved to the debtor, e.g. food prepared for use; and, in the case of a knight, his horse with its equipment.

51 Henry III. stat. 4 (among “statutes of uncertain date” in Statutes of Realm, I. 197).

See Dialogus de Scaccario, II. xiv.

Cf., however, the rule as to amercements in c. 20.

28 Edward I. c. 12. Cf. Statute of Marlborough, 52 Henry III. c. 15.

Henry’s reissues make two small additions explaining certain points of detail: (1) the words “et ipse debitor paratus sit inde satisfacere” precede the clause giving sureties exemption; and (2) the sureties are declared liable to distraint when the chief debtor can pay, but will not.

The words “de quocumque teneat” include Crown–tenants and under–tenants, and suggest that only freeholders were protected by this clause.

Catallum and lucrum were the technical words for “principal” and “interest.” See Round, Ancient Charters (Pipe Roll Society, Vol. X.), No. 51, and John’s Charter to the Jews, Rot. Chart., p. 93.

See Pollock and Maitland, I. 452, and Round’s Ancient Charters, notes to Charter No. 51.

The Crown was sometimes called in to enable a debtor, overwhelmed by the accumulation of interest, to come to a settlement with his creditors. In 1199 Geoffrey de Neville gave a palfrey to the King to have his aid “in making a moderate fine with those Jews to whom he was indebted.” See Rotuli de Finibus, p. 40. Ought we to view John’s intervention as an attempt to arrange a reasonable composition with unreasonable usurers, or was it simply a conspiracy to cheat Geoffrey’s creditors?

20 Henry III. c. 5.

Statutes of Realm, I. 221.

Cf. Cap. de Judaeis (Sel. Ch. 262).

Cf. J. M. Rigg, Sel. Pleas of the Jewish Exchequer, p. xix.

Sel. Charters, 262.

See John’s Charter to the Jews of 10th April, 1201, in Rotuli Chartarum, p. 93.

See Pollock and Maitland, I. 453 n.

Rigg, Op. cit., xx.

See Rot. Chart., I. 93. Complaints brought by Christians against Jews were to be judged “per pares Judei,” a phrase which Harcourt, Steward, 228, interprets as equivalent to “the justices or custodes of the Jews,” but see infra under c. 39.

Rot. Pat., I. p. 33, and New Rymer, I. 89. The date is 29th July, 1203.

See Rigg, ibid., xxiv.

See Miss Norgate, John Lackland, p. 231.

Statutes of Realm, I. 221.

Folio 386b.

See supra, p. 65.

“Extraordinary aids” here mean all aids other than the three normal ones.

Miss Norgate, Minority, 15, thinks the innovation so undoubted as to justify Innocent’s Bull annulling the Great Charter. Cf. Adams, Origin, 276 n.: “a demand in regard to scutage which custom did not warrant.” Cf. ibid., 221–2, and supra, 71.

See supra, p. 148.

Miss Norgate, Minority, p. 194.

See supra, p. 35.

See Article 23 (which became c. 33), Article 31 (c. 41), and Article 32 (cc. 12 and 13), and cf. supra, p. 117. Whether Article 12 (c. 35) was more a benefit to, than a restraint upon, traders seems doubtful.

See, however, Ballard (British Borough Charters, lxxx. ff.) who seems to make the two things shade into each other.

Bracton, I. 288, holds that aids of this sort are personal not predial, for they look to persons not fiefs. Auxilium burgorum was sometimes a technical term, meaning sums paid by boroughs in lieu of ‘Danegeld. See Round, Eng. Hist. Rev., XVIII. 309. In our text, however, “aids” must be more broadly interpreted.

This statement, for which evidence is given infra, is not always admitted. Taswell–Langmead, Eng. Const. Hist., p. 107, says: “The city of London can never have been regarded as a demesne of the Crown.” For lists of prelates and barons paying tallage see Ludwig Riess, Historische Zeitschrift, Vol. 14, N.S. pp. 21 ff. (1904).

I. 712, citing Mem. Roll 39 Henry III.

Rot. Claus., I. 64.

Willelmi Articuli Londoniis Retractati, in Liebermann, Gesetze, I. 490, c. 5.

Eng. Hist. Rev., XVII. 726.

Ibid., XIX. 702; Origin, 358 ff.

See supra, p. 236.

Lords’ Report on the Dignity of a Peer, I. 65.

In 1168, when Henry II. took an aid for the marriage of his daughter, London contributed £617 16s. 8d., which might afford a precedent for a “reasonable” aid. See Pipe Roll, 14 Henry II., cited Madox, I. 585.

Cf. however, Davis, England under Normans, 380.

It might be argued that the last clause of chapter 13, extending to all towns a confirmation of liberties and customs, was intended to embrace this provision as to aids. If so, the draftsman has expressed himself clumsily.

See Stubbs, Const. Hist., II. 548. “Of the scope of this enactment there can be no doubt; it must have been intended to cover every species of tax not authorised by parliament, and . . . it seems to have had the effect of abolishing the royal prerogative of tallaging demesne.”

E.g. Taswell–Langmead, Engl. Const. Hist., 106. Dr. Stubbs, Const. Hist., I. 573, considers that these words “admit the right of the nation to ordain taxation.”

See infra, under c. 25.

Even when an honour escheated, its tenants “were not suitors of the Curia Regis.” See Report on Dignity of a Peer, I. 60.

Firma is explained infra, c. 25.

Stubbs, Const. Hist., I. 439. Round, Commune, 220, is in substantial agreement. Miss Bateson, however, thinks “there has been a tendency unduly to minimise the measure of administrative unity in the twelfth–century shire of London.” See evidence produced by her, Engl. Hist. Rev., XVII. 480–510.

Geoffrey de Mandeville, 356.

William of Malmesbury, II. 576.

See e.g. Miss Norgate, Angevin Kings, II. 471.

Geoffrey, 367.

Commune of London, 222.

Commune of London, 224.

Select Charters, p. 252.

Luchaire, Communes Françaises, p. 97, defines it as “seigneurie collective populaire.”

Miss Bateson, Engl. Hist. Rev., XVII. 508.

E.g. removal of obstacles in Thames and Medway. Cf. infra, c. 33.

Supra, p. 236.

John Lackland, 228. From this date the list of mayors shows frequent, sometimes annual, changes. Serlo, the mercer, was mayor in May, 1215, when London opened its gates to the insurgents, while William Hardell had succeeded him before 2nd June, 1216.

See text of Charter in Sel. Chart., 315.

The meaning of both words is discussed infra, c. 39.

See supra, p. 236. M. Petit–Dutaillis (Studies Supplementary, 102) doubts whether the citizens in 1215 had any wish to become a Commune, and holds that their desire was to escape burdensome exactions, no matter what these might be called. Prof. Adams (Origin, 367) maintains, in reply, that the only practicable method of effecting this exemption was to obtain recognition as a Commune.

Ibid., 361.

Rot. Pat., 303–4.

See Norgate, Minority, 186, and authorities there cited.

See supra, p. 145.

Cf. Pollock and Maitland, I. 447–8.

Cf. infra, c. 41.

On the whole subject of the commune concilium, cf. supra, 129–131 and 149.

E.g. Anson, Law and Custom of the Constitution (1st ed.), I. 14, declares that one of the two cardinal principles of the Charter is “that representation is a condition precedent to taxation.” This has been altered in later editions.

Prof. Adams (Origin, 276 n.) perhaps goes too far towards the opposite extreme in holding this chapter “an unnecessary addition to the Articles of the Barons and quite without importance.” Contrast Round as cited infra, p. 251.

This is illustrated by comparison with the phrases in which Henry and his sons expressed “the common consent”: e.g. (1) the Assize of Clarendon in 1166 (Select Charters, 143) bears to have been ordained by Henry II. “de consilio omnium baronum suorum”; (2) John’s Charter to Innocent in 1213 declares that he acted “communi consilio baronum nostrorum” (Select Charters, 285); (3) Matthew Paris makes Earl Richard complain to Henry III. in 1255 that the Apulian business had been entered on “sine consilio suo et assensu barnagii” (Chron. Maj., V. 520).

Cf. Round (Peerage and Pedigree, 349 ff.), who speaks of this as creating “a harsh and artificial division of society.” Its composition was stereotyped, and Mr. Round rejects alike the theory of Stubbs (Const. Hist., I. 566) that the Council was being gradually extended, and that of Freeman (Norman Conquest, V. 419) that it was suffering contraction. Cf. also Adams, Origin, 226 n., and the authorities there collected.

See Ramsay, Angevin Empire, p. 54, and authorities there cited.

See L. O. Pike, House of Lords, 92, “There is no trace of any desire on the part of the barons to be summoned to the King’s great Council as a privilege and an honour before the reign of John.” Cf. also Report on the Dignity of a Peer, I. 389.

Peerage and Pedigree, 355–6.

See Prof. Medley, Eng. Const. Hist., 123.

Dialogus de Scaccario, II. x. D., “baronias scilicet majores seu minores.”

Cf. supra, c. 2. Prof. Vinogradoff, Law Quart. Rev. XXI. 255, shows that “baronia” long remained a technical term for the body of freemen holding from the king, both great and small.

Op. cit., 353. Cf. also his King’s Serjeanties, 36; Commune of London; 252–3.

Eng. Const. Hist., 123. “The smaller tenants–in–chief would thankfully regard the general summons as an intimation to stay away.”

Eng. Const., I. 466.

See Const. Hist., I. 666. “Whether or no the fourteenth Article of the Great Charter intended to provide for a representation of the minor tenants–in–chief by a body of knights elected in the county court,” etc.

The writs of 7th November, 1213, are commonly regarded as introducing the representative principle into the national assembly, and in this view the barons’ scheme embodied in Magna Carta has been considered as reactionary by comparison. Cf. Anson, Law and Custom, I. 44: “The provisions of 1215 described an assembly which was already passing away.” There are difficulties, however, connected with the interpretation of those writs; and recent authorities are inclined to point to 1264, rather than to 1213, as the beginning of the systematic application of representation to Parliament. See Adams, Origin, 317, 340. Cf. also supra, 29–30.

Cf. Report on Dignity of a Peer, I. 63.

Cf. Stubbs, Const. Hist., I. 607: “Absence, like silence, on such occasions implies consent.”

See Pipe Roll of 5 Henry III., cited Madox, I. 675.

For the beginnings of the modern doctrine of the rights of majorities see infra under c. 61.

See Prothero, Simon de Montfort, 67, and authorities there mentioned.

See M. Paris, Chron. Maj., V. 520. Note, however, that the version of the Charter given in his own history contains no such requirement. The barons in 1255 may have had access to the version of 1215.

The chapter is, therefore, on the one hand, a supplement of cc. 12 and 14; on the other, a particular application of the principle enunciated in c. 60, which extended to sub–tenants benefits secured to Crown–tenants by previous chapters.

The exemptions enjoyed by them are explained under c. 43.

By strict feudal theory the King had no right to interfere between the barons and their sub–tenants. (1) The need for royal writs was thus a usurpation. (2) Those writs were “only letters of request,” not binding on sub–tenants. See Adams, Origin, 230–2.

Bracton’s Note–book, No. 1146, cited Pollock and Maitland, I. 331.

In theory, in Henry II.’s reign at least, a royal writ was not required in the normal case. See Dialogus, II. viii., and the editors’ comment (p. 191): “Normally the levying of money under any pretext from a landowner gave him a right to make a similar levy on his under–tenants.” As regards scutage, a distinction was recognized. The lord who actually paid scutage might collect it from his sub–tenants without a licence; but, if he served in person, he could recover none of his expenses except by royal writ. See ibid., and cf. Madox, I. 675. It is necessary, however, to avoid confusion between two types of writ, (a) that which merely authorized contributions, e.g., de scutagio habendo; (b) that which commanded the sheriff to give his active help. In later practice, the sheriff often collected scutage from the sub–tenants and paid it directly to the Crown. Pollock and Maitland, I. 249–253.

Cf. Pollock and Maitland, I. 331: “The clause expunged from the Charter seems practically to have fixed the law.”

Close Rolls, I. 306, cited Pollock and Maitland, I. 331.

Patent Rolls, 5 John, cited Madox, I. 615.

Close Rolls, 7 John, cited Madox, I. 616.

See Glanvill, IX. 8.

See Round, Commune of London, 130.

See Madox, I. 617, citing Patent Rolls, 18 Henry III. Various other examples are given by Pollock and Maitland, I. 331, e.g. “the earl of Salisbury, to enable him to stock his land.”

Supra, p. 257, and cf. Pollock and Maitland, I. 331.

See Madox, I. 677.

See the authorities cited supra, p. 68, n. 3, and 69, n. 1.

In the so–called “unknown Charter of Liberties” (see Appendix) John concedes to his men “ne eant in exercitu extra Angliam nisi in Normanniam et in Brittaniam,” a not unfair compromise, which may possibly represent the sense in which the present chapter was interpreted by the barons. See, however, Adams, Origin, 232, who takes a different view.

Walter of Hemingburgh, II. 121. Cf., on the whole subject of foreign service, supra, 67–76.

Supra, 59–69.

Cf. J. F. Stephen, Hist. of Crim. Law, I. 88–9.

Jurisprudence and Ethics, 209. Sometimes, however, another “fixed place” was substituted. The Court of Common Pleas sat once at York under Edward III. and once at Hertford under Elizabeth. See Maitland, Select Pleas of the Crown, xiii. The statute 2 Edward III. c. 11 enacted that it should not be removed to any new place without due notice.

See Prof. Maitland, Select Pleas of the Crown, xiii.–xvi.

See Pollock, Expansion of Common Law, 63 n. Cf. Holdsworth, I. 75.

Cf. supra, 90.

Author of Gesta Regis Henrici, I. 207.

Bigelow, Proceaure, 89; Stubbs, Gesta Regis Henrici, I. lxxi.

House of Lords, 32. See also Poole, Exchequer, 180, and Adams, Origin, 136 ff.

See Prof. Maitland, Sel. Pl. Crown, xiii.–xvi.; see also in Pipe Roll, 7 John (cited Madox, I. 791) how money was paid that a plea pending before the Justiciarii de banco might be heard coram rege. This entry proves the existence in 1205 of the de banco as distinct from the coram rege.

See Maitland, ibid.

Cf. Poole, Exchequer, 183, who insists, however, that “it said nothing about a distinct court.”

For attempts to evade this prohibition on the ground of the special character of particular pleas, see Bracton’s Note–book, Nos. 1213 and 1220.

See Maitland, Sel. Pl. Crown, xviii.

See Placitorum Abbreviatio (p. 105), 21 Henry III., cited Pike, House of Lords, p. 41 Cf. also Bracton’s Note–book, pleas Nos. 1213 and 1220.

Poole, Exchequer, 183.

28 Edward I. c. 5.

For stages in this genesis in 1234, 1236, and 1317, see Poole, Exchequer, 183.

Stubbs, Const. Hist., II. 281 n.

See 28 Edward I. c. 4. Many previous attempts had been made to keep common pleas out of the Exchequer, e.g. the writs of 56 Henry III. and 5 Edward I. (cited Madox, II. 73–4), and the so–called statute of Rhuddlan (12 Edward I.), see Statutes of Realm, I. 70.

Thus Madox (II. 73–4) holds that c. 17 relates to the Exchequer; so does Mr. Bigelow (History of Procedure, 130–1), who explains the grievance as a difficulty of getting speedy justice at the Exchequer, because the barons refused to sit after their fiscal business had been finished. This seems to be an error: the Barons of Exchequer made no difficulty about hearing pleas: quite the contrary. Plaintiffs were equally eager to purchase the writs which they were keen to sell: it was only defendants (debtors) who objected to the rapid and stringent procedure for enforcing payment adopted by this efficient court. The sheriffs and others waiting to render accounts before the Exchequer also protested against the congestion of business produced at the Exchequer by the eagerness of litigants who pressed there for justice. See Madox, II. 73. Plaintiffs had no reason to complain.

The fiction of “Crown debtors” is well known: plaintiffs obtained a hearing in the exchequer for their common pleas by alleging that they wished to recover debts due to them “in order to enable them to answer the debts they owed to the king.” See Madox, II. 192.

“Comitatus” indicates both the county where the lands lay and the court of that county. It was originally the sphere of influence of a comes or earl. Cf. supra, c. 2.

See supra, c. 17.

See W. S. Holdsworth (History of English Law, p. 115), who cites 1397 as the date of the final abolition of Eyres.

This was in 1233: see Pollock and Maitland, I. 181.

Blackstone, Commentaries, III. 58, assigns 1176 (the assize of Northampton), as the date of their institution.

See statute 3 and 4 William IV. c. 27, §§ 36–7. The last actual case of a Grand Assize occurred in Davies v. Loundes, in 1835 and 1838 (1 Bing. N.C. 597, and 5 Bing. N.C. 161).

The name “Assize” is sometimes a source of confusion, because of its various meanings. (1) Originally, it denoted a session or meeting of any sort. (2) It came to be reserved for sessions of the King’s Council. (3) It was applied to any Ordinance enacted in such a session, e.g. Assize of Clarendon. (4) It was extended to every institution or procedure established by royal ordinance, but (5) more particularly applied to the procedures known as Grand Assize and Petty Assizes. (6) Finally, it denotes at the present day a “session” of these Justices of Assize, thus combining something of its earliest meaning with something of its latest. In certain contexts, it has other meanings still, e.g. (7) an assessment or financial burden imposed at a “session.”

See Neilson, Trial by Combat, 33–6, and authorities there cited.

Cf. supra, p. 85, for the place of “combat” in legal procedure; and p. 89, for Henry’s policy in discouraging it. For the later history of trial by battle, see infra, under c. 36.

See Glanvill, II. 7.

Sel. Chart., 259. The Assize of Northampton in 1176 (ibid. 152) had given them jurisdiction over estates of half a knight’s fee or less, but nothing was there said of the mode of proof.

Glanvill, XII. 25.

See infra, under c. 34.

In the matter of actual date, the received opinion is that the “novel disseisin” procedure dates from 1166, and the Grand Assize came later. Round (Athenaeum for 28th Jany., 1899) suggests 1179. The evolution of the various writs was, however, a slow process, and steps in the chain are wanting. Under Geoffrey Plantagenet in Normandy various writs shade off into one another. See Haskins, Amer. Hist. Rev., VIII. 613 ff. In any view, the logical sequence seems to be that given in the text.

In Normandy the corresponding period was “since the last harvest.” See Maitland, Equity, 323.

At so late a date as 1267 it was found necessary to recognize by statute the right of the heir, who had come of age, to oust his guardian from his lands by an assize of mort d’ancestor. See Statute of Marlborough, c. 16.

Such was the law as late as 1285. Westminster II. c. 5 explains that, when any one had wrongfully presented to a vacant church, the real patron could not recover his advowson except by writ of right “quod habet terminari per duellum vel per magnam assisam.”

A Lateran Council in 1179 authorized the diocesan bishop to appoint after three months’ vacancy. Hence there was additional need of haste.

The relations of the assizes to the ancient inquisitio and to the modern jury are discussed supra, pp. 134–8.

Thus two successive chapters of Magna Carta emphasize two divergent tendencies: c. 17 had demanded that “common pleas” should all be held at Westminster, while c. 18 demands that “assizes” should not be taken there. In both cases, the object was to consult the convenience of litigants.

See Bracton’s Note–book, No. 1478; cited Coke (Second Institute, proem). If this assize had presented points of special difficulty it might have been held at Westminster without violating Magna Carta, as amended in 1217.

13 Edward I. c. 30. Stephen, History of Criminal Law, 105–7, gives further details.

Cf. Assize of Northampton, c. 4.

Cf. infra, c. 48, where twelve sworn knights are to be chosen per probos homines ejusdem comitatus. Cf. also Forma Procedendi of 1194 (Sel. Charters, 255).

See, e.g. Stubbs, preface to R. Hoveden, IV. xcviii.; Blackstone, Great Charter, xxxvi.; Medley, Eng. Const. Hist., 130.

Blackstone, ibid., points out these changes in the charter of 1217: “the leaving indefinite the number of the knights and the justices of assize, the abolishing of the election of the former, and the reducing the times of taking assizes to once in every year.”

On the whole subject, see an admirable article by G. J. Turner, Encycl. Laws of Engl., III. 76 ff.

See Middle Ages, II. 464.

Cf. Coke, First Institute, 293b: “As the power of justices of assizes by many Acts of Parliament and other commissions increased, so these justices itinerant by little and little vanished away.”

On whole subject see Stubbs, Sel. Chart., 141–3; Stephen, Hist. Crim. Law, I. 79–111; Holdsworth, I. 116–123. Contrast, however, Turner, op. cit., III. 76 ff.

For the exception where lands were under £5 in annual value, see supra, p. 273.

G. J. Turner, ibid., p. 79.

27 Edward I. c. 3. For early history of gaol delivery, see Pollock and Maitland, II. 642.

13 Edward I. c. 39; see Stephen, Hist. Criminal Law, p. 106.

Edward III. c. 2. Ibid., 110.

It is unnecessary to do more than notice the exceptional “commissions of trailbaston,” supposed to date from the Statute of Rageman (1276), conferring special powers for the suppression of powerful wrongdoers. These were soon superseded by the commissions of oyer and terminer.

Mr. Turner (ibid., p. 79) suggests, however, that a separate commission was not needed, as “all justices of assize and gaol delivery were in the commission of the peace within the precincts of the court.” In his view the justices received three distinct commissions, not five.

Subsequent practice did not conform to this rule. One novel disseisin, or one mort d’ancestor, might be held by itself; and complaint was made in 1258 that the sheriffs proclaimed in the market places that all knights and freeholders must assemble for such an inquest, and when they came not, amerced them at will (pro voluntate sua). See Petition of Barons, c. 19 (Sel. Charters, 385).

Subsequent legislation vacillated between two policies, actuated at times by a desire to restrain the discretionary powers of the justices; and at others by experience of the hardships inflicted upon litigants by inflexible rules. The Statute of Westminster II. (13 Edward I. c. 30) confirmed the power of the justices to reserve cases of mort d’ancestor for decision by the bench, and per contra allowed assizes of darrein presentment to be taken “in their own counties.” 6 Richard II. c. 5 curtailed the discretionary powers, directing that justices assigned to take assizes and deliver gaols should hold sessions in the county towns in which the shire courts were wont to be held. 11 Richard II. c. 11 once more relaxed this rule, alleging that it had resulted in the inconvenience of suitors. Authority was given to the chancellor, with the advice of the justices, to determine in what places assizes might be held.

See Charter of Henry I. c. 8, which, however, condemns the whole practice among the other innovations of the Conqueror and Rufus.

See Dialogus de Scaccario, II. xvi.

Cf. Pollock and Maitland, II. 511–4. There were, however, exceptions, e.g. Henry II. would not accept money payments for certain forest offences: mutilation was inflicted. See Assize of Woodstock, c. 1, and contrast Forest Charter of 1217, c. 10.

Cf. Pollock and Maitland (II. 512), who describe Henry’s promise as “a return to the old Anglo–Saxon system of pre–appointed wites.” In order to avoid confusion, no mention has been made in the account given above of a classification of amercements into three degrees, which increases the obscurity surrounding their origin. The Dialogus de Scaccario, II. xvi., tells how (1) for grave crimes, the culprit’s life and limbs were at the King’s mercy, as well as his property; (2) for less important offences, his lands were forfeited, but his person was safe; while (3) for minor faults, his personal effects only were at the King’s disposal. In the last case, the offender was “in misericordia regis de pecunia sua.” Thus to be “in mercy” did not always mean the same thing. Further, a villein or dependent freeman on a manor might fall into the “mercy” of his lord, as well as of the King. The records of manorial courts are full of amercements for petty transgressions of customs of the manor.

“Very likely there was no clause in Magna Carta more grateful to the mass of the people than that about amercements.” Maitland, Gloucester Pleas, xxxiv.

Even Coke (Second Institute, p. 27) has to confess that for purposes of this chapter he must abandon the attempt made elsewhere (ibid., p. 4 and p. 45) to bring villeins into the class of freemen.

Adams, Origin, 257, thinks the addition made it clear that villeins could not amerce the liber homo; but were not the four legaliores homines of each village described in Assize of Clarendon, villeins? Harcourt, Steward, 221 n., insists that the clause does not secure “trial by peers” in the feudal sense, for the jury of neighbours need not be “peers of a tenure.”

Harcourt, Engl. Hist. Rev., XXII. 733–4. See also Dial. de Scac., p. 207 n.; Maitland, Gloucester Pleas, xxxiv. Amercements apparently might also be provisionally fixed by the justices of the bench or the barons of exchequer, who might (where arrears were still unpaid) reduce their figures of previous years.

Harcourt, ibid.

Madox, I. 527.

See, however, on whole subject, Harcourt, ibid.

Reeves, History of English Law, I. 248 (Third Edition) says: “Upon this chapter was afterwards framed the writ de moderata misericordia, for giving remedy to a party who was excessively amerced.”

Cf. Professor James Tait, Engl. Hist. Rev. XXXVII., 720 ff., who thinks that any attempt to exempt merchant “wares” from amercement was inconsistent with the right to distrain goods for debt, as illustrated by many cases given by Gross, Sel. Cases in Merchant Law (Selden Society), passim.

Rotuli Chartarum, 51.

See Select Charters, 108.

See Birch, Historical Charters of London, p. 5.

Ibid., p. 11.

See English Village Community, passim.

See Engl. Hist. Rev., XXXVII. 724, where Mr. Tait argues “for a broader and less concrete interpretation of the term . . . than has hitherto been put upon it.” The villein was not to be ruined by impounding his seed–corn or growing crops any more than by depriving him of his plough or plough team. See also A. F. Pollard, Engl. Hist. Rev., XXXVIII. 117, and cf. waynagium in c. 5, supra. The Mirror of Justices, p. 169, has a gloss on this passage, in which it is the villein’s “gaigneur” that is saved to him, and this is apparently identified with the villenagium held by him. Mr. Tait’s view has been adopted here; but the word has sometimes a more restricted meaning, e.g. in Hoveden, iv. 48, where 100 acres of land are reckoned to the “waynage” of each plough.

The view here taken of the motive for protecting villeins is strengthened by the use of the peculiar phrase, “vastum hominum” in chapter 4 (q.v.). Thomson, Magna Charta, p. 202, seems completely to have misunderstood this 16th chapter of the reissue of 1217, construing the four interpolated words in a sense the Latin will not bear, viz.: “A villein, although he belonged to another.”

Notably by Professor Vinogradoff in his Villeinage in England, passim.

The gulf which separated villein from freeman in this matter is shown by the Pipe Roll of 16 Henry II. (cited Madox, I. 545); Herbertus Faber debet j marcam pro falso clamore quem fecit ut liber cum sit rusticus. A villein might be amerced for merely claiming to be free. It is difficult to reconcile any theory of the villein’s freedom with the doctrine of Glanvill, V. c. 5, who denies to everyone who had been once a villein the right to “wage his law,” even after emancipation, where any third party’s interests might thereby be prejudiced. R. Hoveden, iv. 46, speaking of the carucage of 1198, explains that for perjury a villein forfeited his best ox to his lord (not to the King).

C. 55, which supplements this chapter, cancels amercements unjustly inflicted in the past.

IX. 8.

III. folio 116b.

3 Edward I. c. 6.

See II. 208–9.

Prof. Tait’s conclusions (op. cit.) have here been accepted with some hesitation. “Contenement,” he urges, “is not a compound from tenement.” He admits, however, following Godefroy, that in one instance the word does mean “tenement.” He does not notice the striking analogy between the use of “contenement” in this chapter and that of “tenement” in c. 11 supra; nor does he discuss the evidence of the contemporary Histoire de Guillaume le Maréchal, where the word appears seven times with various meanings, e.g. capacity, manner of being, conduct, and equipment. M. Paul Meyer has collected these in his index. Mr. Tait goes too far when he asserts that to make freehold liable to amercement shows “a complete misconception of that form of punishment,” p. 726. There were three degrees of amercement; and only for the mildest of the three was the forfeit limited to the culprit’s personal estate (de pecunia). See supra, p. 286, n. Again, a man might be forced to sell his freehold to meet a heavy pecuniary mulct. Under Henry’s Charter, in its final form, no ecclesiastic could be amerced except in accordance with his “tenement,” which suggests an analogy with the saving of a freeman’s “contenement” in the present passage.

See II. 208–9.

See Madox, ibid.

III. folio 116b.

A valuable volume of evidence has been collected by Harcourt, Eng. Hist. Rev. XXII. 733 ff.; though his conclusions are mainly negative. See also his Steward, ff. 289.

Harcourt, ibid., 736. Pike, House of Lords, 256–7, shows how barons were assessed sometimes—(a) before the barons of exchequer; or (b) before the full King’s Council; or (c) at a later date, even before the justices of Common Pleas. They were never assessed, however, before the justices on circuit.

See Pike, House of Lords, 255.

Bracton, f. 116b.

Madox, I. 535–8.

See Madox, ibid., and also Pike, House of Lords, 257. Mr. Pike, p. 255, rightly says that what was originally a privilege had become a burden.

See Pike, ibid.

Madox, Baronia Anglica, 106, seems to view these sums as fixing a minimum, not a maximum. “If a baron was to be amerced for a small trespass, his amercement was wont to be 100s. at the least; he might be amerced at more, not at less. This, I think, was the meaning of the term amerciater ut baro.” He adds that a commoner for a similar trespass would get off with 10s., 20s., or 40s.

Stubbs, Sel. Chart., 345, by a curious oversight reads “contenementum,” in the issue of 1217, for which there seems to be no authority.

The word “villa,” used at first as synonymous with “manor,” came to be freely applied not only to all villages, but also to chartered towns. Even London was described as a villa in formal writs. “Homo,” though often loosely used, was the word naturally applied to a feudal tenant. The version given by Coke (Second Institute, p. 30) reads “liber homo,” which is also the reading of one MS. of the Inspeximus of 1297 (25 Edward I.). See Statutes of the Realm, I. 114.

See Rot. Claus., 19 Henry III., cited by Moore, History and Law of Fisheries, p. 8.

The Hundred Rolls illustrate the manner of its incidence; e.g. Omnes tenentes de Spaldinge debent ad reparacionem pontis illius, quilibet pro rata porcionis terrae suae contribuere, ita quod quaelibet acra erit par alterius. Rot. Hund., I. 468.

See Rot. Claus., 19 Henry III., cited in Moore, History and Law of Fisheries, p. 8.

See Moore, ibid., 8–16. Two links in the chain of evidence are worthy of emphasis: (a) Writs of 13th November and 1st December, 1234, order repair of bridges for the transit of the King “along with his birds.” (b) A writ of 28th October, 1283, contains a licence to the Earl of Hereford “during the present winter season to ‘revaye’ and take river–fowl throughout the rivers Lowe and Frome which are in defence.”

I.e. c. 47 (q.v.).

R. Wendover, II. 49 (R.S.), “Ibi capturam avium per totam Angliam interdixit.”

Article 11 of the Barons had demanded that no villa should be amerced for failure to make illegal repairs, thus illustrating at once John’s policy, and the point of connection between this provision and the immediately preceding chapters which dealt with amercements.

It was, however, included among the subjects reserved for further consideration in “the respiting clause” (c. 42 of 1216) under the words “de ripariis et earum custodibus.” Cf. supra, 143.

Moore, ibid., 9.

Moore, ibid., 12.

The Mirror of Justices is cited as first suggesting this. See Moore, ibid., 12–16. Coke, Second Institute, 30, misled by the Mirror, has misled others.

Cf. infra, under c. 33.

This was 13 Edward I., stat. 1, c. 47, cited Moore, ibid., 173.

Ibid., p. 6.

Ibid., p. 16.

Lord Hale (Hargreaves, Law Tracts, p. 7) partly anticipated their conclusions, and he seems to have been followed by decisions of the New York Courts. See Law Notes (New York) for August, 1905.

Traces may be found in Glanvill, I. c. 1.

The triumph of royal justice over all rivals in the sphere of criminal law is thus symbolized by the extension of the phrase “pleas of the Crown,” which can be traced through a series of documents—e.g. (a) the laws of Cnut; (b) Glanvill, I. cc. 1, 2, and 3; (c) the Assizes of Clarendon and Northampton; (d) the ordinances of 1194; and (e) Magna Carta.

The Criminal Procedure (Scotland) Act, 1887 (50 and 51 Victoria, c. 35) gave him jurisdiction over three of them.

Cf. infra, 315–6, for details.

See Forma procedendi, cc. 20 and 21 (Sel. Chart., 260).

Ibid., c. 21.

Ibid., c. 20.

The Forma procedendi is usually considered the earliest distinct reference to the office of coroner. Dr. Gross, however (History of Office of Coroner, 1892, and Select Cases from Coroners’ Rolls, 1896) claims to have found traces of their existence at a much earlier date. Maitland remained unconvinced (Eng. Hist. Rev., VIII. 758, and Pollock and Maitland, I. 519).

This inference is drawn from Article 14 of the Barons.

This inference is drawn from c. 24 of Magna Carta.

See Maitland, Gloucester Pleas, xx.

Ibid., p. x.

See Coke, Second Institute, 30, and authorities there cited.

For explanation of these terms, see supra, c. 18.

See Middle Ages, II. 482 n.

Cf. Stephen, History of Criminal Law, I. 83. The mistake made by Hallam and others may have been in part the result of their neglecting the important modification undergone by the phrase “pleas of the Crown” between 1215 and the present day.

E.g. 13 Edward 1. c. 13, and 1 Edward III., stat. 2, c. 17.

1 Edward IV. c. 2.

Contrast Coke, Second Institute, 32, who seems to suggest that one effect of Magna Carta was to take from the sheriff a jurisdiction over thefts previously enjoyed by him.

Dr. Stubbs, Const. Hist., I. 650, thinks that the Charter indicated a tendency towards judicial absolutism, only curbed by the growth of trial by jury. Yet the barons had no intention to enhance the royal power. The attitude of the insurgents in 1215 suggests rather that the sheriffs had now become instruments of royal absolutism to a greater extent than the King’s justices themselves. Edward I., indeed, deftly turned this chapter to his own advantage, arguing that it cancelled all private jurisdiction over criminal pleas previously claimed by boroughs or individuals. See Coke, Second Institute, 31, and cases there cited.

Leet Jurisdiction, 340.

See supra, p. 28.

See W. Coventry, II. 214–5.

Abuses by sheriffs and other bailiffs continued to be rife after 1215 as before it. Many later statutes afford graphic illustrations of the oppressive conduct they sought to control. In 1275 Edward found it necessary to provide “that the sheriffs from henceforth shall not lodge with any person, with more than five or six horses; and that they shall not grieve religious men nor others, by often coming and lodging, neither at their houses nor at their manors.” See Statute of Westminster, c. 1, confirmed by 28 Edward I., stat. 3, c. 13.

Cf. supra, pp. 15–16.

See G. J. Turner, Trans. R. Hist. Soc., XVIII. 272.

On this whole subject see the valuable remarks of Mr. Turner, op. cit., p. 272.

These localities were independent of the ordinary executive authorities of the county; partial exemption from the sheriff’s control was enjoyed also by (a) chartered boroughs and (b) holders of franchises. The same man might, of course, be both sheriff and castellan.

See H. B. Simpson, Eng. Hist. Rev., X. 625, for authorities.

Evidence collected by Coke, Second Institute, 31, proves the identity. See also Round, Ancient Charters, No. 55, where Richard I. in 1159 speaks of “constabularia castelli Lincolniae.”

See Articuli super cartas, 28 Edward I. c. 7.

Stubbs, Const. Hist., II. 339.

See 5 Henry IV. c. 10. Coke, Second Institute, 30, relates, as an indication of the authority and pretensions of these constables, that they had seals of their own “with their portraiture on horseback.”

See Stubbs, Hoveden, Pref. to Vol. IV. xcix.

See Bracton, f. 122b.

In 1197 Richard’s Assize of Measures appointed six custodientes in each county and town. These were coroners over one class of offences, the use of false weights and measures. Cf. infra, under c. 35.

Statute of Westminster, I. c. 10.

Cf. Coke, Second Institute, 31, “In case when any man come to violent or untimelv death, super visum corporis.”

Mr. G. J. Turner, speaking of the minority of Henry III., thinks “the term ‘bailiff’ as applied to a county at this period meant ‘sheriff.’” Transactions, p. 274.

These extra payments appear under various names, e.g. augmentum or incrementum in Domesday Book (cf. Ballard, Domesday Inquest, 75). The Pipe Roll for 1166 (p. 11) records 200 marks paid as gersuma for Norfolk and Suffolk. See evidence collected by Adams, Origin, 237 n. Huge sums were sometimes paid: Archbishop Geoffrey in 1194 purchased the shrievalty of York for £2000. Ramsay, Angevin England, 345.

Cf. Sir James Ramsay, Angevin Empire, 476, who describes this provision as “an impossible requirement.” Dr. Stubbs’ paraphrase is not entirely happy: “the ferms of the counties and other jurisdictions are not to be increased.” See Const. Hist., I. 575.

See Turner, Trans. R.H.S., XVIII. 289.

These are the words of the statute of 1330, cited below.

4 Edward III. c. 15; 14 Edward III. c. 9; 4 Henry IV. c. 5.

For this usage see Cnut, II. 18 (Liebermann, Gesetze, I. 321); Leges Henrici, 7 and 8 (ibid., 553); Writ of Henry I. (ibid., 524).

See supra, p. 150.

Bracton’s Note–book, Plea 1730.

Ibid., No. 513.

See Hearnshaw, Leet Jurisdiction, 79, 80, who reminds us, however (p. 147), that “even Magna Carta can be prescribed against.”

Cf. the use of the phrase “a liquid debt” in Scots law.

Cf. what is there said of the sheriff’s oppressions.

The subject is discussed by Pollock and Maitland, II. 312–353. See also Holdsworth, III. 418 ff.; Makower, Const. Hist. Church, 427 ff.

See Pollock and Maitland, II. 324.

Maitland, Coll. Papers, II. 139.

Holdsworth, III. 418 ff.

On 30th August, 1199 (New Rymer, I. 78) John confirmed the testament of Archbishop Hubert Walter; and on 22nd July, 1202 (ibid., I. 86), he granted permission to his mother, the dowager Queen Eleanor, to make a will.

Cf. “tota pars sua de pecunia sua” in Burton Abbey Surveys (cited by Round, Engl. Hist. Rev., XX. 279); Bateson, Borough Customs, II. xcvi.

Glanvill, VII. 7.

See Law Magazine, Oct. 1905.

On whole subject, see Holdsworth, III. 418 ff.; Makower, Const. Hist. Church, 427 ff.

Pollock and Maitland, II. 354.

See Appendix and supra, p. 98. Also Bateson, Borough Customs, II. cxlii–iii. Cf. Cnut, II. cc. 70 and 78 (Liebermann, Gesetze, 357–365).

See Appendix and supra, p. 102.

Glanvill, VII. 16.

See Pollock and Maitland, II. 354. Examples are readily found: “When Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of £11,000, to say nothing of the spoons and saltcellars” (Pollock and Maitland, I. 504). Royal prerogatives in the twelfth century were elastic. Henry II. used them freely, but on the whole fairly. His sons stretched every doubtful claim to its utmost limits. The Crown was the legal heir of all Jews (cf. c. 10) and apparently of all Christian usurers as well, at least of such as died unrepentant (see Pollock and Maitland, II. 486), and the making of a will was a necessary condition of a usurer’s repentance. (See Dialogus de Scaccario, 224–5 nn.) The King, further, took the goods of all who died a felon’s death (cf. c. 32) and of men who committed suicide (itself a felony). Madox (I. 346) cites an entry from the Pipe Rolls of 1172, recording 60 marks due to the exchequer as the value of the chattels of an intestate; and, two years later, mention is made de pecunia Gilleberti qui obiit intestatus. There is nothing to show whether such men were, or were not, usurers. The Pope was another competitor for the personal estates of intestate clerks. In 1246 he issued an edict making this demand: even Henry III. (dependent and ally of Rome as he was) protested, and the edict was withdrawn. See Pollock and Maitland, II. 357.

F. 60.

Pollock and Maitland, II. 355. Cf. supra, p. 324.

See Blackstone, Commentaries, I. 287, for an often–quoted definition.

3 Edward I. c. 32.

Stubbs, Const. Hist., II. 339.

12 Charles II. c. 24, ss. 11–12.

13 Charles II. c. 8.

The Statute of Westminster I. (3 Edward I. c. 7) enacted “that no constable or castellan from henceforth take any prise or like thing of any other than of such as be of their own town or castle, and that it be paid or else agreement made within forty days, if it be not ancient prise due to the king, or the castle, or the lord of the castle,” and further (c. 32) that purveyors taking goods for the King’s use, or for a garrison, and appropriating the price received therefor from the exchequer, should be liable in double payment and to imprisonment during the King’s pleasure.

For details, see under cc. 30 and 31.

Hallam, Middle Ages, III. 221.

See Rotuli de oblatis et finibus, 119.

See 3 Charles I. c. 1.

See the examples collected in Pollock and Maitland, I. 257. See also in Rotuli de oblatis et finibus, 107, how in 1200 Ralph de Bradel offered John 40 marks and a palfrey to be relieved of “the custody of the work of the castle of Grimsby.”

Cf. supra, p. 57 n.

Adams, Origin, 238, contrasts the principle of this chapter with that of c. 12, where no option is allowed the vassal of offering service in lieu of scutage—a breach of strict feudal custom.

De feodo pro quo fecit servicium in exercitu. This variation in the charter of 1217 seems to have escaped Dr. Stubbs’ attention. See Select Charters, 346.

The rate fixed by 13 Charles II. c. 8, for the hire of carts or carriages requisitioned by the King, was 6d. per mile. This hire included six oxen, or alternatively two horses and four oxen, to each vehicle.

See 3 Edward I. c. 32.

Cf. Sir James Ramsay, Angevin Empire, p. 476, who considers that chapters 28 and 30, in the branches of prerogative with which they respectively deal, “leave the king’s personal right open.”

See Coke, Second Institute, 36.

Pollock and Maitland, II. 500, consider that the present chapter had a distinct influence in accentuating this twofold classification of crimes.

Glanvill, VII. c. 17. Cf. Bracton, folio 129, for a graphic description of “waste,” which included the destruction of gardens, the ploughing up of meadow land, and the uprooting of woods.

Is it possible that the origin of “year and waste” can be traced to the difficulty of agreeing on a definition of “real” and “personal” estate respectively? The Crown would claim everything it could as “chattels”—a year’s crops and everything above the ground.

Second Institute, p. 36.

See Pollock and Maitland, I. 316. “The apocryphal statute praerogativa regis which may represent the practice of the earlier years of Edward I.” Bracto (folio 129) while stating that the Crown claimed both, seems to doubt the legality of the claim.

Cf. c. 4.

Such at least is the most probable explanation of an entry on the Pipe Roll of 6 John (cited Madox, I. 488); although it is possible that Thomas only bought in “the year day and waste.”

Magna Carta is peculiar in speaking of year and day, without any reference to waste. If it meant to abolish “waste” it ought to have been more explicit. Later records speak of “annum et vastum,” e.g. the Memoranda Roll, 42 Henry III. (cited Madox, I. 315), relates how 60 marks were due as the price of the “year and waste” of a mill, the owner of which had been hanged.

Pipe Roll, 13 Henry III., cited Madox, I. 347. In Kent, lands held in gavelkind were exempt alike from the lord’s escheat and the King’s waste, according to the maxim, “The father to the bough, the son to the plough.” See, e.g. praerogativa regis, c. 16. See also Gloucester Pleas, 114, where apparently the King’s rights over half a hide were sold for 20s.

Madox, I. 344–8, cites from the Pipe Rolls many examples.

This case is cited by Madox, I. 347, from 18 Edward I.

Supra, p. 88.

See Bracton, II. folio 123, and folio 137.

Pipe Roll, 2 John, cited Madox, I. 348.

Cf. supra, c. 24.

3 Edward I. c. 12.

The Act 12 George III. c. 20, made standing mute equivalent to a plea of guilty. A later Act, 7 and 8 George IV. c. 28, made it equivalent to a plea of not guilty. See Stephen, Hist. Crim. Law, I. 298.

This fiction of corrupt blood was apparently based in part on a false derivation of the word “attainder.” See Oxford English Dictionary.

E.g. 54 George III. c. 145, and 3 and 4 William IV. c. 106, s. 10.

33 and 34 Victoria, c. 23.

The Oxford English Dictionary defines it as “a dam, weir, or barrier in a river, having an opening in it fitted with nets or other appliances for catching fish.” For weirs in Domesday Book, see Ballard, D. Inquest, 175–6.

Blackstone, Commentaries, IV. 424, declared that this chapter “prohibited for the future the grants of exclusive fisheries.” Cf. e.g. Thomson, Magna Charta, 214, and Norgate, John Lackland, 217. See also Malcolmson v. O’Dea (1862), 10 H. of L. Cas., 593, and Neill v. Duke of Devonshire (1882), 8 App. Ca. at p. 179,—cases cited in Moore, History and Law of Fisheries, p. 13, where the fallacy is exposed. For an unsuccessful attempt to extend the principle to Scotland, after the Act of Union, see an interesting review of the first edition of this work in Jurid. Rev. for March, 1905.

25 Edward III., stat. 3, c. 4.

12 Edward IV. c. 7. Apparently the earliest statute which refers to weirs as causing injury to fish was one passed in 1402, namely, 4 Henry IV. c. 11; see Moore, Fisheries, p. 175.

It seems to have been generally assumed that these charters conferred positive as well as negative privileges on the citizens, including rights of administration and jurisdiction over the waters of Thames. See Noorthouck, New History of London (1773), 36. Luffman, Charters of London (1793), 13, says of Richard’s grant in 1197: “By this charter the citizens became conservators of the river Thames.” This is an anachronism, but Patent Rolls of 33 Edward I., 5 Edward III., 8 Edward III., contain Commissions of Conservancy. See Moore, op. cit., p. 176. In 1393 the statute of 17 Richard II. c. 9 granted authority to the Mayor of London to regulate weirs and generally to “conserve” the Thames from Staines downwards, and the Medway.

See Rotuli Cartarum, 11 Henry III.

The Histoire des ducs, 149, paraphrases this chapter thus: “Toutes hautes justices vaurrent–ils avoir en lor tierres.” Miss Norgate, Minority, 11, has not grasped the significance of this clause.

Glanvill, XII. 25. See supra, p. 89.

Brunner, Schwurgerichte, 78 ff.

The form of the writ is given in Glanvill, XII. 3.

Cf. Stubbs, Const. Hist., I. 576.

Glanvill, I. 6, gives the form of a praecipe: Rex vicecomiti salutem, Praecipe A. quod sine dilatione reddat B. unam hidam terrae in villa illa, unde idem B. queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum per bonos summonitores quod sit ibi coram me vel Justiciariis meis in crastino post octabas clausi Paschae apud locum illum, ostensurus quare non fecerit. Et habeas ibi summonitores et hoc breve. Teste Ranulpho de Glanvilla apud Clarendon.

Brunner, Schwurgerichte, 411; Maitland, Col. Papers, II. 129.

Coke, Sec. Inst., 40, gives three varieties of praecipe: (a) praecipe quod reddat; (b) quod permittat; (c) quod faciat. The first group includes one variety of Writs of Right and the various Writs of Entry. Writs of Right, on their part, are of three kinds: (1) writ of right patent, (2) writ praecipe, (3) little writ of right, applicable to villeins on ancient demesne.

See Bigelow, Hist. of Procedure, 78. Glanvill, read between the lines, supports this view. Thus in I. c. 3, he speaks of the King’s courts as normally dealing with “pleas of baronies”; in I. c. 5, he speaks of what he evidently considers an abnormal expansion of this jurisdiction to any plea anent a free tenement, if the Crown so desired.

See supra, under c. 18.

Pollock and Maitland, I. 151.

The version of 1216 speaks of a “free tenement,” where that of 1215 spoke merely of a “tenement.” The addition makes no change, since in no case could the King’s courts try pleas affecting villeins of mesne lords. Perhaps the object is to make it clear that there was no interference with the King’s rights over holdings of his own villeins.

In translating the reissue of 1225, the Statutes at Large expand the word “praecipe” into “praecipe in capite,” for which there is no authority in any known text of Magna Carta, though it appears in Coke’s version of Henry’s charter (Sec. Inst., 38). Authorities differ as to what constitutes a praecipe in capite. Brunner, Schwurgerichte, sec. xx., declares it to be so called “because it begins with the word Praecipe”; yet all praecipes so begin, even Writs of Entry, which are certainly not condemned by Magna Carta. Coke (Sec. Inst., 38) seems (inconsistently with his own version of Magna Carta) to identify the praecipe in capite with a class of writs not prohibited in the Charter, namely, with those professing to deal with estates held directly under the Crown: no one ought to have it without taking oath “that the land is holden of the King in capite.” He cites illustrations from the reign of Edward I. Adams (Origin, 104), speaks of an “in capite” clause inserted in praecipes to evade the prohibition of Magna Carta. See also Holdsworth, III. 10.

Such an attempt seems to have been made in 1207 by Walter de Lacy, Earl of Ulster, who set up in his Irish fief what is described as nova assisa, against which John protested. See Rot. Pat., I. 72, for writ dated 23rd May, 1207. In one case John acquiesced in grand assizes being held in feudal courts: on 4th May, 1201, he granted licence to Hubert Walter to hold them for his tenants in gavelkind. See New Rymer, I. 83.

See article 18 (Select Charters, 404). Cf. chapter 29 of the Petition of the Barons (Select Charters, 386), and Pollock and Maitland, I. 182: “The voice of the nation, or what made itself heard as such, no longer, as in 1215, demanded protection for the seignorial courts.”

A partially successful attempt was made to revive feudal jurisdictions as late as the reign of Edward III. See Stubbs, Const. Hist., II. 638–9.

See, e.g. Madox, I. 793.

Bracton, 404b.

Sec. Inst., 38.

Coll. Papers, II. 129.

See Brunner, Schwurgerichte, 406; Maitland, Coll. Papers, II. 129.

See Glanvill, XII. 7.

Sel. Chart., 386–7.

See Bracton’s Note–book, plea 1215, where the writ in question is cited at length: it contains the sentence, “nec tollat alicui curiam suam ubi locum habere possit breve de recto.”

Technical details are given by Pollock and Maitland, II. 63–7. The whole family of writs were known as “writs of entry sur disseisin”; and these were applied to still wider uses after 1267 on the authority of the Statute of Marlborough, as “writs of entry sur disseisin on the post.” See also Maitland, Preface to Sel. Pleas in Manorial Courts, p. lv.

Cf. Pollock and Maitland, I. 151, and Sel. Pleas in Manorial Courts, already cited.

This word, unknown to Ducange, seems to be connected with the “hauberk” or coat–of–mail. It may mean thick cloth worn under a coat–of–mail.

R. Hoveden, IV. 33–4.

At a later date cloth of an alternative standard width was also legalized, viz., of one yard between the “lists.” Hence arose the distinction between “broadcloth” (that is, cloth of two yards) and “streits” (that is, narrow cloth of one yard) (see Statute 1 Richard III. c. 8). The word “broadcloth” has, long since, changed its meaning, and now denotes material of superior quality, quite irrespective of width. See Oxford English Dictionary, under “Broadcloth.”

Cf. supra, c. 20, for “amercements,” and supra, c. 24, for “custodes” of pleas (or coroners).

See R. Hoveden, IV. 100.

See Hoveden, IV. 172, and Stubbs, Const. Hist., I. 616.

See Pipe Roll, 4 John, cited Madox, I. 566.

See ibid.

In 1203 the men of Worcester paid 100s. “ut possint emere et vendere pannos tinctos sicut solebant tempore Regis Henrici”; and the men of Bedford, Beverley, Norwich and other towns made similar payments. See Pipe Roll, 4 John, cited Madox, I. 468–9.

See Pipe Roll, cited Madox, I. 509.

Gloucester Pleas, No. 501.

Pipe Roll, 3 Henry III., cited Madox, I. 567.

See supra, pp. 84–6.

See Leges Henrici primi, c. 69, §§ 15–16.

See Bracton, folio 531.

See Jocelyn of Brakelond, 50–2.

Blackstone, Commentaries, IV. 316. Cf. Bateson, Borough Customs, I. 73, II. xxv., II. xxxiv.

Cf. supra, p. 88, and also p. 272.

See under c. 54.

In identifying the writ spoken of by Magna Carta as that “of life and limbs” with the well–known writ de odio et atia, most authorities rely on a passage in Bracton (viz., folio 123). There is still better evidence. The Statute of Westminster, II. c. 29, ordains: “Lest the parties appealed or indicted be kept long in prison, they shall have a writ de odio et atia like as it is declared in Magna Carta and other statutes.” Further, in 1231, twelve jurors who had given a verdict as to whether an appeal was false, were asked quo waranto fecerunt sacramentum illud de vita et membris, without the King’s licence. See Bracton’s Note–book, case 592.

Madox, I. 505, has collected instances.

Cf. Pollock and Maitland, II. 585–7, and Thayer, Evidence, 68.

Feudal courts adopted a similar procedure in malicious appeals (although the King objected to their doing so without royal licence). Inquests were held shortly after the abolition of ordeal (1215) in the court of the Abbot of St. Edmund. See Bracton’s Note–book, case 592.

See Pollock and Maitland, II. 586.

59 George III. c. 46.

The early history of habeas corpus is traced by Prof. Jenks, Law Quarterly Review, XVIII. 64. The writ de odio was obsolete prior to the invention of the habeas corpus.

Cf. Brunner, Schwurgerichte, 471.

See folio 123.

See Pipe Roll, 8 John, cited Madox, I. 566.

See Rot. Pat., I. 76; Madox, I. 494. The date is 8th Nov., 1207.

Gloucester Pleas, xli., where cases are cited.

See Bracton’s Note–book, case 134, and cf. case 1548.

Stephen, Hist. Crim. Law, I. 241 (following Foster, Crim. Cases, 284–5), considers that it was abolished by 6 Edward I., stat. 1, c. 9. Coke, Second Institute, 42, thought it was abolished by 28 Edward III. c. 9 (which, however, seems not to refer to this at all), and restored by 42 Edward III. c. 1 (abolishing all statutes contrary to Magna Carta). Coke, ibid., and Hale, Pleas of the Crown, II. 148, considered that the writ was not obsolete in their day. Cf. Pollock and Maitland, II. 587 n.

Edward I. c. 11.

6 Edward I., stat. 1, c. 9.

13 Edward I. cc. 12 and 29.

See Rot. Parl., I. 323.

6 Edward I. c. 9. Appeals were extremely frequent towards the close of the Plantagenet period, especially in the days of “the Lords Appellant.” The proceedings on appeal sometimes took place before the Court of the Constable and Marshal and sometimes before Parliament. In neither case were they popular. One of the charges brought against Richard II. was that “in violation of Magna Carta” (that is, probably, of chapter 39) persons maliciously accused of treasonable words were tried before constable and marshal, and although “old and weak, maimed or infirm,” yet compelled to fight against appellants “young, strong, and hearty.” See Rot. Parl., III. 420, cited Neilson, Trial by Combat, 193. On the other hand, Statute 1 Henry IV. c. 14, provided that no appeals should be held before Parliament, but certain appeals might come before constable and marshal. Cf. Harcourt, Steward, 369.

See 3 Henry VII. c. 1, s. 11: the injured party, with the right of appeal, was “oftentimes slow and also agreed with, and by the end of the year all is forgotten which is another occasion of murder.”

See Ashford v. Thornton, 1 B. and Ald., 405–461.

See 59 George III. c. 46.

Pollock and Maitland, I. 304, read “parva” as an untechnical word. Round, Serjeanties, 35–6, finds in this chapter the origin of the distinction between “grand” and “petty” serjeanties, and compares the distinction made in c. 14 between greater and lesser barons.

Cf. supra, pp. 55–7 and 61–2.

II. viii. s. 158.

Cf. Glanvill, VII. c. 10. “When any one holds of the King in capite the wardship over him belongs exclusively to the King, whether the heir has any other lords or not; because the King can have no equal, much less a superior.” Yet the King is not to have such wardship “because of burgage.”

Cf. Petition of Barons (1258), c. 2; Prov. of West. (1259), c. 12. Glanvill, VII. c. 10, had laid it down that burgage tenure could not give rise to prerogative wardship.

See supra, p. 56.

See Bracton, folio 87b. The Note–book, case 743, contains a good illustration. The motive for these restrictions was to prevent injustice to mesne lords. It was probably, however, an indirect consequence of Magna Carta that a similar rule came to be applied where no mesne lord was injuriously affected. In 1231 a certain Ralf of Bradeley died, who had held two separate freeholds of the Crown, (i) a small fee by petty serjeanty of twenty arrows a year, and (ii) land of considerable value held in socage. The Crown took possession of both estates, on the assumption that wardship over the petty serjeanty brought with it a right of wardship over the socage lands also (although these would have been exempt if they had stood alone). The King sold his rights for 300 marks. Ralf’s widow claimed the wardship of the socage lands, on the ground that these were of much greater value than those held by serjeanty. Her argument was upheld, and the 300 marks refunded to the disappointed purchaser. See Pipe Roll, 5 Henry III., cited Madox, I. 325–6.

See Petition of the Barons, Article 2 (Select Charters, 383). C. 53 of Magna Carta reverts to prerogative wardship, granting redress, although not summary redress, where John, or his father or brother, had illegally extended it by occasion of socage, etc. See also supra, p. 368. Round, Eng. Hist. Rev., XXVIII. 156, cites from Cal. Inq. post mortem, III. 406–7, an interesting case of prerogative wardship decided against the Crown in 1301. Orpen, Ireland, II. 234, cites two Charters in which John renounces prerogative wardship. C. 43 infra (amended by c. 38 of 1217) guards against another abuse of prerogative wardship.

Cf. supra, c. 24. It possibly includes sheriffs and their officers. The same men, apparently, were described as King’s serjeants and sheriff’s serjeants; one Roll records fines for a man buried “sine visu servientum vicecomitis,” and for a robber hanged “sine visu servientis regis” (Pipe Roll, 31 Henry II). The word may also include the stewards who presided in manorial courts. If so, the unqualified “ballivus” of this passage should, perhaps, be contrasted with the “noster ballivus” of cc. 28 and 30. Coke, Second Institute, 44, following the doubtful Mirror of Justices, extends it to all King’s justices and ministers.

Dr. Stubbs (Const. Hist., I. 576) translates “lex” in this passage by “compurgation or ordeal.” Pollock and Maitland (II. 604 n.) explain that the word “does not necessarily point to unilateral ordeal; it may well stand for trial by battle.” Thayer (Evidence, 199–200) extends it to embrace judicially appointed tests of every kind—battle, ordeal of fire or water, simple oath, oath with compurgators, charter, transaction witnesses, or sworn verdict. Bigelow (Placita Anglo–Normanica, 44) cites from Domesday Book cases where litigants offered proof omni lege or omnibus legibus, that is, in any way the court decided. Sometimes lex had a more restricted meaning; in the Customs of Newcastle–on–Tyne (Select Charters, 112) it seems to mean compurgation as opposed to combat. For its various meanings see also Harcourt, Steward, 232.

In c. 55 “lex” would seem to bear a meaning more akin to the broader conception of “law” in modern jurisprudence; while in c. 39 its denotation is subject of controversy.

Cf. the phrases “per simplex verbum suum” (Fordwick) and “per vocem suam simplicem” (Hereford) in Bateson, Borough Customs, I. 181. Cf. ibid., II. xxxii.

These appear as an Appendix to the Year Book of 32–3 Edward I. (p. 516); but the handwriting is supposed to be of the reign of Edward II.

Cf. supra, p. 83. The necessity for such “suit” was not legally abolished until 1852 (by Statute 15 and 16 Victoria, c. 76, s. 55). In 1343 it had been decided that the “suit” must be in existence, but need not be produced in court; and that if they did appear they could not be examined. See Thayer, Evidence, 13–15.

See Rigg’s Sel. Pleas Jewish Exch., xii., and cf. supra, c. 10.

Rigg, ibid., 89, where the case is cited.

See City of London v. Wood (12 Modern Reports, 669). Holt held the clause of Magna Carta to mean that the plaintiff, unless he had witnesses, could not put a defendant to his oath. Pollock and Maitland, II. 604, seem to concur, to the extent at least of counting this as one of the abuses condemned by c. 38: “The rule which required a suit of witnesses had been regarded as a valuable rule; in 1215 the barons demanded that no exception to it should be allowed in favour of royal officers.”

See his Schwurgerichte, 199–200. Cf. ibid., 178 and 409–74. For a similar practice in Galloway, see G. Neilson on “Surdit de Sergaunt,” Scot. Antiq., XI. 155. The Leges Quatuor Burgorum would seem to guard against an evil of an opposite kind when (c. 76) they forbid the provost or bedells of a town (prepositus vel precones) to “bring witnesses to a claim against anyone,” but direct that the defendant shall acquit himself per legem. This peculiar law would seem to be entirely unknown to previous commentators on this difficult passage of Magna Carta.

This reading is supported by Pollock and Maitland, I. 130 n. There is no necessary inconsistency between the view here cited, and that already cited from ibid., II. 604. The same clause of Magna Carta may have been aimed at irregularities of two kinds, in civil and criminal pleas respectively.

See Article 12 where “eat ad aquam” is contrasted with “non habeat legem” of Article 13 (Select Charters, 144).

The “ad portandum recordationem comitatus et hundredi” of the ordinance is exactly opposed to the “simplex loquela sua” of the Charter.

Thus in 1166 (the year of the Assize of Clarendon) the “Soca” of Alverton was amerced because of a man placed “ad aquam sine serviente” (Pipe Roll, 12 Henry II., p. 49). In 1185 the “villata” of Preston paid 5 marks for putting a man “ad aquam sine waranto” (Pipe Roll, 31 Henry II., cited Madox, I. 547). In the same year a certain Roger owed half a mark for being present at an ordeal “sine visu servientum regis”: and heavy fines were exacted from those who had put a man “injuste ad aquam” (ibid.).

See Miss Bateson, Eng. Hist. Rev., XVII. 712.

Miss Bateson (Borough Customs, II. xxxi.) speaks of the “right of accusation ‘ex officio’ which belonged to the King’s officers until Magna Carta, Art. 38, deprived them of it.”

See Thayer, Evidence, 37 n., for a case of 1291, where “ad legem manifestam” can only mean trial by combat. Cf. legem apparentem purgandus est in Glanvill, XIV. ff. 112–114.

Westminster I. (c. 12) described men refusing to put themselves on a jury’s verdict, “come ceaus qui refusent la commune ley de la terre.”

The usual English rendering has here been followed: Mr. Harcourt (Steward, 219) was possibly right in holding that “interpretation under the guise of translation is in this case an inevitable snare.” This does not, however, absolve the commentator from explaining the text. The Articles of the Barons (29) add “vi” (“nec rex eat vel mittat super eum vi” suggesting the fuller contemporary “per vim et arma”). This shows the inadequacy of the translation contained in the Statutes at Large, “nor will we pass upon him nor condemn him.” The Statutes of the Realm, I. 117, suggest “deal with him” as an alternative. Coke, as explained infra, originated the error which thus connected “going” and “sending” with legal process.

For a valuable discussion of alternative interpretations, see Adams, Origin, 256–274; also Pike, House of Lords, c. X. Mr. Harcourt’s learned discussions (Steward, cc. VII. and VIII.) are worthy of careful study, though they are more useful in suggesting difficulties than in finding solutions.

See, e.g. Coke, Second Institute, 55.

Thus Blackstone, Commentaries, IV. 424: “It protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land.” Hallam, Middle Ages, II. 448, speaking of cc. 39 and 40 together, says they “protect the personal liberty and property of all freemen by giving security from arbitrary imprisonment and arbitrary spoliation.” Creasy, Eng. Const., p. 151 n.: “The ultimate effect of this chapter was to give and to guarantee full protection for person and property to every human being that breathes English air.”

The same grim tradition applied to Lidford as to Jedburgh:

See Neilson, Trial by Combat, 131, and authorities there cited.

Mr. Bigelow considers that such cases were numerous. See Procedure, 155: “The practice of granting writs of execution without trial in the courts appears to have been common.”

See Appendix.

Mr. Harcourt (Steward, 218 ff.) has much to say on this phrase: for him a man’s “peers” need not be his equals in rank (p. 220); while “judgment” is a vague word embracing widely opposed procedures: e.g. (p. 248), “In common parlance of the time a resolution of the King in Council to make war on a subject was a judicium.” He further instances, as examples of legal processes accepted in 1215 as equivalent to “judgment,” the procedure for Crown debts under c. 9; outlawry under c. 42; the petty assizes under c. 19; and the special procedure in cc. 52, 56 and 59 (see ibid., 220–3). Mr. Harcourt’s conclusions are not clearly formulated, and some of them appear to be not well founded.

The earliest known reference occurs in the Leges Henrici (c. 31): Unusquisque per pares suos judicandus est et ejusdem provinciae.

Cf. Pollock and Maitland, I. 152. As there was no “peerage” in England (cf. supra, p. 186) until long after John’s reign, it is obvious that the judicium parium of Magna Carta must be interpreted in a broader sense than any mere “privilege of a peer” at the present day. Freeholders holding of the same mesne lord were “peers of a tenure.”

See Stubbs, Const. Hist., I. 578 n., for foreign examples of judicium parium.

“If a Christian bring a complaint against a Jew, let it be adjudged by his peers of the Jews.” See Rot. Chartarum, p. 93, and supra, p. 227 n. Harcourt, however (ibid., 228), translates pares Judei as “justices or custodes of the Jews.”

See Carta Mercatoria, c. 8; 27 Edward III. stat. 2, c. 8; and 28 Edward III. c. 13; also Thayer, Evidence, p. 94.

See infra, cc. 56, 57, and 58. Under c. 59 the barons of England were called peers of the King of Scots.

See Placitorum Abbrevatio, p. 201, cited Pollock and Maitland, I. 393 n.

See also a passage in the Scots Acts of Parliament (I. 318) attributed to David: “No man shall be judged by his inferior who is not his peer; the earl shall be judged by the earl, the baron by the baron, the vavassor by the vavassor, the burgess by the burgess; but an inferior may be judged by a superior.”

See supra, p. 84, and cc. 18, 36, and 38.

See Thayer, Evidence, 200–1, for a discussion of the phrase “lex terrae.” See also Bigelow, History of Procedure, 155 n.: “The expression ‘per legem terrae’ simply required judicial proceedings, according to the nature of the case; the duel, ordeal, or compurgation, in criminal cases; the duel, witnesses, charters, or recognition in property cases.” The words occur at least twice in Glanvill, each time apparently with the technical meaning. In II. c. 19, the penalty for a false verdict includes forfeiture by jurors of their law (“legem terrae amittentes”); while in V. c. 5, a man born a villein, though freed by his lord, cannot, to the prejudice of any stranger, wage his law (“ad aliquam legem terrae faciendam”). The stress placed on the accused’s right to the time–honoured forms of lex is well illustrated by the difficulty of substituting jury trial for ordeal. It has already been shown that the right of “standing mute,” that is, virtually, of demanding ordeal, was only abolished in 1772. See supra, p. 342. Five and a half centuries were thus allowed to pass before the criminal law was bold enough, in defiance of a fundamental principle of Magna Carta, to deprive accused men of their “law.”

Mr. Harcourt (Steward, 220 ff.) has vehemently, and Prof. Adams (Origin, 266 ff.) judicially and moderately, maintained this view. Mr. Adams is influenced by his failure to discover any instance of “per legem terrae” in the technical sense, but “per legem Angliae” occurs in Sel. Civil Pleas (Selden Society), No. 104, where the reference is to ordeal of water.

It would seem, however, from the words of these statutes that for this purpose the provisions of chapters 36 and 38 were used to supplement those of the present chapter, if they were not confused with them. See 5 Edward III. c. 9; 25 Edward III. stat. 5, c. 4; 37 Edward III. c. 18; 38 Edward III. c. 3; 42 Edward III. c. 3; 17 Richard II. c. 6. See also Stubbs, Const. Hist., II. 637–9, for the series of petitions beginning with 1351.

Second Institute, p. 46.

3 Charles I. c. 1.

Pollock and Maitland, I. 152 n., read the word as having both meanings in this passage. Cf. Gneist, Engl. Const., chapter xviii. Mr. Pike, House of Lords, 170, takes a different view: “King John bound himself in such a manner as to show that judgment of peers was one thing, the law of the land another. The judgment of peers was . . . a very simple matter and well understood at the time. The law of the land included all legal proceedings, civil or criminal, other than the judgment of peers.” The present writer rejects this antithesis, because the two things may be, and indeed must be, combined. The “trial” by a law and the “judgment” by equals were complementary of each other. The peers appointed the test and decided whether it had been properly fulfilled. See also, on opposite sides, Harcourt, Steward, 219 ff., and Adams, Origin, 262.

See, e.g. Pike, House of Lords, 217, citing Littleton in Year Book, Easter, 10 Edward IV., No. 17, fo. 6.

This chapter applied only to abuses of criminal process: cf. c. 21 for amercements and civil process.

The wording of the 29th Article of the Barons, if not merely due to careless draftsmanship, seems, however, against this conjunctive interpretation. Cf. Adams, Origin, 262.

For this word cf. supra, c. 18.

See Rot. Claus., I. 215. Mr. Pike (House of Lords, p. 170) maintains, indeed, that the prevention of disseisins “sine judicio” was the chief, if not the sole, object of the chapter under discussion: “The judgment of peers had reference chiefly to the right of landholders to their lands, or to some matters connected with feudal tenure and its incidents.” This goes too far: the barons by no means confined the safeguard afforded by the judicium parium to questions of land. Pollock and Maitland, I. 393, countenance a broader interpretation.

De libero tenemento suo vel libertatibus vel liberis consuetudinibus suis.

Cf. supra, p. 151.

Cf. supra, p. 246.

Second Institute, p. 47.

See, e.g. Creasy, Hist. of Const., p. 151 n.: “Monopolies in general are against the enactments of the Great Charter.” See also Taswell–Langmead, Eng. Const. Hist., 108.

See supra, p. 25.

See Pipe Rolls, 7 Richard I., cited by Madox, I. 201.

E.g. Coke, Sec. Inst., 48. For the early history of outlawry and exile, see Liebermann, Friedlosigkeit (Brunner–Festschrift), and Gesetze, II. 413; A. Réville, Abjuratio regni, Revue Hist., vol. 50 (1892). Harcourt (Steward, 221) characterises “destruatur” as a “colloquial expression” covering even amercements, if of excessive amounts.

See Second Institute, p. 46. John Reeves, History of English Law, I. 249 (third ed.), while condemning Coke, gives an even more strained interpretation of his own. Lingard, History of England, III. c. 1, deserves praise as the first commentator who took the correct view.

Second Institute, pp. 4, 27, and 45.

Simon de Montfort, 17 n. Cf. Blackstone, Great Charter, xxxvii., “the more ample provision against unlawful disseisins.”

Cf. Pollock and Maitland, I. 340 n.

Cf. supra, p. 118. Other verbal changes in the charter of 1217 show the same care to exclude the villeins. E.g. c. 16 leaves the King’s demesne villeins strictly “in his mercy,” that is, liable to amercement without any reservation.

Mr. G. H. Blakesley, Law Quarterly Review, V. 125, perhaps goes too far: “It may reasonably be suspected that cap. 39 also was directed merely to maintain the lord’s court against Crown encroachments.”

Mr. Pike, House of Lords, 170–4, shares this view of the reactionary nature of the clause, although he considers that the claim to judicium parium by a Crown tenant might be satisfied by the presence of one or more barons among the judges of the “Benches,” and did not necessarily involve a full commune concilium. Ibid., p. 204. If the “judgment” of the full court was requisite (and, in spite of the high authority of Mr. Pike, there is much to be said for that contention), then the reactionary feudal tendency is even more prominent.

See R. Hoveden, III. 136.

Cf. supra, p. 29.

The writ is dated 10th May, 1215, and appears in New Rymer, I. 128.

Magna Carta also omits “per vim et arma.”

Cf. Harcourt, ibid., 235.

Ibid., 236.

M. Paris, II. 524.

Ibid., III. 247–8.

M. Paris, Chron. Mag., III. 251–2.

Pollock and Maitland, I. 393, hesitate to condemn this argument. “The very title of the ‘barons’ of the Exchequer forbids us to treat this as mere insolence.” Dr. Stubbs has no such scruples: “The Bishop replied contemptuously, and with a perverse misrepresentation of the English law” (Const. Hist., II. 49). Elsewhere he makes him, not so much contemptuous, as ill–informed of the law—“ignorant blunder as it was” (II. 191). Yet Bishop Peter had presumably an intimate knowledge of the law he administered as justiciar in 1233. In the matter of amercements, at least, barons of exchequer acted as peers of earls and barons.

Pike, House of Lords, 173. See also Bracton, f. 119; Pollock and Maitland, I. 393.

“The trial, therefore—the ascertaining of the fact—was, though under the direction and control of the Court of Peers, by battle; but the judgment on the trial by battle was to be given by the peers.” Pike, House of Lords, 174.

Pike, ibid., 174–9.

The privilege was extended to peeresses by 20 Henry VI. c. 9.

The Earl of Chester claimed it in 1236–7, and the Earl of Gloucester (as a lord marcher) in 1281. See Pollock and Maitland, I. 393 n. See, however, Harcourt, Steward, 291.

Cf. supra, pp. 134–5.

The erroneous identification of judgment of peers with trial by jury can be found far back in legal history. Pollock and Maitland, II. 622–3 n., trace it to within a century of Magna Carta. “This mistake is being made already in Edward I.’s day; Y. B. 30–1 Edward I., p. 531.” In spite of modern research the error dies hard. It appears, e.g., in Thomson, Magna Charta, 223; Taswell–Langmead, Const. Hist., 110; Goldwin Smith, “The United Kingdom,” I. 127.

Pollock and Maitland, I. 152 n., and Pike, House of Lords, 169.

Cf. supra, p. 134.

Cf. Pike, ibid., 169. “From the time when trial by jury first commenced, either in civil or in criminal cases, to this present end of the nineteenth century, no jury ever did or could give judgment on any matter whatsoever.” The difference between the ancient and modern conceptions of judgment, however, must not be lost sight of.

Const. Hist., I. 234.

See State Trials, III. p. 1, and S. R. Gardiner, History, VI. 214.

Middle Ages, II. 451.

Cf. Madox, I. 455: “By nulli vendemus were excluded the excessively high fines: by nulli negabimus, the stopping of suits or proceedings, and the denial of writs: by nulli differemus, such delays as were before wont to be occasioned by the counterfines of defendants (who sometimes would outbid the plaintiffs) or by the prince’s will.”

Fines for this purpose were frequent under Henry II. and his sons. Madox, I. 447, cites many examples. Thus in 1166 Ralph Fitz Simon paid two marks “for speeding his right.” The practice continued under Henry III. in spite of Magna Carta. Bracton’s Note–book cites a hard case (No. 743): Henry III. was claiming prerogative wardship where it was illegal under c. 37 of Magna Carta (q.v.). The court might have delayed hearing the mesne lord’s plea until the wardship was ended; but he paid five marks pro festinando judicio suo. The fine was said to be given “willingly” (sponte). Did the use of this word make possible an evasion of c. 40 of the Charter?

Pollock and Maitland, I. 174. Cf. ibid., II. 204, and authorities cited.

Madox, I. 455, says: “And this clause in the great Charters seems to have had its effect. For . . . the fines which were paid for writs and process of law were more moderate after the making of those great Charters than they used to be before.”

Instances are collected by Sir T. D. Hardy in Rot. de oblatis, p. xxi. See also Stubbs, Const. Hist., II. 636–7.

Rot. Parl., III. 116, cited Stubbs, Const. Hist., II. 637.

Second Institute, 56.

So far all authorities are agreed, though a difference of opinion exists as to the source of these prerogatives. Thus (a) Stephen Dowell, History of Taxation and Taxes in England, I. 75, considers that the duties on imports and exports were in their origin of the nature of voluntary dues paid by foreign merchants in return for freedom of trade and royal protection; (b) Hubert Hall, Customs Revenue of England, I. 58–62, justly reckons this prerogative as merely one aspect of purveyance, that is, of the King’s right to take what he needed for himself and household. Under an autocrat, however, facts count for more than theories. The prerogative was measured by brute force: Kings took what they could with no jealous regard for the exact letter of the law, and left future ages to invent theories to justify or explain their conduct.

See State Trials, II. 407–475, and especially 455–6.

E.g. 2 Edward III. c. 9 and 14 Edward III., stat. 1, c. 21.

Two–thirds of the chapter is occupied in explaining that merchant strangers of unfriendly States are not to benefit from it. Mr. Hakewill was aware of this, but sought to evade the natural inference by subtleties which are not convincing.

See supra, under c. 13.

For the legal position of aliens, see Pollock and Maitland, I. 441–450.

See Pipe Rolls, 27 Henry II. and 8 Richard I., cited Madox, I. 467–8.

See Rot. Chart., 60 (5th April, 1200).

See Pipe Roll, 6 John, cited Madox, I. 469, where other illustrations will be found. Cf. also Rot. Pat., 170, 170b, 171, 172b.

In the same writ John bade them allow to depart freely all vessels of the land of the Emperor or of the King of Scotland after taking security that they would sail straight to their own countries, with none but their own crews. See Rot. Claus., I. 211, and cf. series of writs in I. 210.

See De l’Esprit des Lois, II. 12 (ed. of 1750, Edinburgh), “La grande chartre des Anglois défend de saisir et de confisquer en cas de guerre les marchandises des négociants étrangers, à moins que ce ne soit par représailles. Il est beau que la nation Angloise ait fait de cela un des articles de sa liberté!”

S. Dowell, Hist. of Taxation, I. 83, citing Madox, I. 525–9 (2nd ed. I. 765–770), and Liber Albus, I. 247–8.

See supra, 34–35.

See New Rymer, I. 135: “Know that we have ordered the mayor and sheriffs of London to allow merchants of your land to remove their goods and chattels from London, without hindrance to doing thence their will; and that if they do not, you may, if it please you, grieve and molest the men of that town (illius villae) in your power, without our reckoning it a breach of truce on your part.”

2 Edward III. c. 9.

See 9 Edward III. c. 1, and cf. 25 Edward III., stat. 4, c. 7.

Cf. supra, pp. 247–8, where the inconsistency between the two parts of the Great Charter is pointed out. See also supra, p. 117.

See 2 Richard II., stat. 1, c. 1, and 11 Richard II. c. 7.

See 5 and 6 William IV. c. 76, s. 14.

E.g. Coke (Third Institute, p. 179) cites from Rot. finium of 6 Henry III. and Rot. Claus. of 7 Henry III. the following case: “Willielmus Marmion clericus projectus est ad regem Franciae sine licentia domini regis, et propterea finem fecit.” The practice had apparently been much the same prior to Magna Carta. E.g. Madox (I. 3) cites from Pipe Roll of 29 Henry II. how “Randulfus filius Walteri reddit compotum de XX marcis, quia exivit de terra Domini Regis.” See also Makower, Const. Hist. of Eng. Church, 239–240 and notes.

See Coke, ibid., citing the Close Roll of 25 Edward III.

5 Richard II., stat. 1, c. 2.

4 James I. c. 1, s. 22.

Third Institute, p. 178.

Its origin is obscure. See Beames, Brief view of the writ of Ne Excat, passim.

See Encyclopaedia of Laws of England, IX. 79.

On the whole subject of these writs, see Stephen, Commentaries, II. 439–40 (ed. of 1899), and authorities there cited.

Royal clemency in this respect could not be relied on by the sub–tenants of small escheated fiefs (not reckoned as honours or baronies). This seems to be the opinion of Madox, Baronia Anglica, 199: “If a fee holden of the Crown in capite escheated to the King and was not an Honour or Barony, then such fee did not (that is to say, I think it did not) vest in the Crown in the same plight in which it was vested in the said tenant in capite.” Cf. also ibid., 203.

See Madox, Baronia Anglica, 169–171; also Pollock and Maitland, I. 261, and authorities there cited.

See Dialogus, II. x. F, and ibid., II. xxiv. The same rule applied to subtenants of baronies in wardship (which was analogous to temporary escheat): when the see of Lincoln was vacant in 1168, the heirs of sub–tenants paid to Henry only what they would have paid to the bishop; one giving £30 for six fees, and another 30 marks for four. See Pipe Roll, 14 Henry II., and cf. supra, c. 2. In the matter of scutage, also, a distinction was recognized: while tenants ut de corona might be compelled to serve in person without an option, Crown–tenants ut de honore (and, a fortiori, sub–tenants also) might claim exemption on tendering scutage. See case of Thomas of Inglethorpe in 12 Edward II., cited by Madox, Baronia Anglica, 169–171.

Report on the Dignity of a Peer, I. 60.

The need for this reference to relief is not, at first sight, obvious, since c. 2 of Magna Carta, by forbidding John to exact from Crown–tenants of either class the arbitrary sums taken by his father, would seem to have already secured them from abuse. Probably, however, c. 43 sought to prevent John from treating each tenant of the escheated barony as holder of a new barony of his own, and therefore liable to a baron’s relief of £100 instead of the £25 he ought to pay for his five fees, or £50 for his ten fees, or as the case might be. The case of William Pantol (see Pipe Roll, 9 Henry III., cited Madox, I. 318) seems to illustrate this. He was debited with £100 of relief, but protested that he held nothing of the Crown save five knights’ fees of the land which was of Robert of Belesme. This plea was upheld, and £75 of the amount debited was written off.

See c. 38 of 1217, and cf. the gloss given by Bracton (II. folio 87b) which makes the meaning somewhat less obscure. The Charter of 1217 contained a saving clause: “unless the holder of the escheated barony held directly of us elsewhere.” Bracton added a second proviso, namely, unless the said sub–tenants (now Crown–tenants ut de escaeta) had been enfeoffed by the King himself.

See Sel. Charters, 384; but see Adams, Origin, 344 n.

See 1 Edward III., stat. 2, c. 13, Statutes of Realm, I. 256.

See 1 Edward VI., c. 4, Statutes of Realm, III. 9.

A convenient, short account of the forests, with their special laws, special officials, and special courts, will be found in W. S. Holdsworth’s History of English Law, I. 340–352. For fuller information see Dialogus de Scaccario, I. xii.; John Manwood, Book of the Forests (1598); Coke, Fourth Institute, 289–317; Liebermann, Constitutiones de Foresta (1894); G. J. Turner, Preface to Select Pleas of the Forest (1901); and an article in the Edinburgh Review for April, 1902.

Select Charters, 156.

Select Pleas of the Forest, xiii.

See W. Coventry, II. 207, and Stubbs’ Preface, lxxxvii.

R. Wendover, III. 227. This, however, is clearly a hostile account of the King’s resumption of forest tracts illegally put under cultivation by way of purpresture.

See Select Pleas of the Forest, xiv. The permanent routine work performed by this functionary must not be confused with the intermittent duties of the Justices of Forest Eyres, although he was usually a member of the commission who went on circuit: e.g. chapter 16 of the Forest Charter speaks of the Chief Forester holding pleas of the forest.

Select Pleas, xv.

Turner, in Select Pleas, xvii.

Engelard de Cigogné, for example, whose name appears in chapter 50, occupied this double position. Chapter 16 of Carta de Foresta forbids castellans to determine pleas of the forests, thus strengthening the presumption that wardens were usually constables.

Select Pleas, xix.

Select Pleas, xxi.

The same chapter, however, fixed the rates of “chiminage.”

For the earliest notice of verderers see Select Pleas of the Forest, xix. n. Their appointment in county court may indicate that they acted in some measure as a check on the professional foresters in the interests of the people generally, as well as a check on the warden in the interests of the King. Within the forest the warden, with the verderers and foresters, offered an exact parallel to the sheriff with the coroners and bailiffs (or serjeants) in other parts of a county.

See Carta de Foresta, c. 6.

After 1217, if not before, it was their duty to fix the number of foresters required, so that the inhabitants need not groan under a heavier burden than necessary.

In one document they were styled agistatores precii (Select Pleas, p. l.), which suggests that fixing the rate was their chief duty. “Agist” was a general term; it was apparently correct to speak of “agisting a wood,” of “agisting cattle,” and of “agisting the money due.”

Carta de Foresta, c. 8.

Select Pleas of the Forest, xxx.

Select Pleas of the Forest, p. 42.

Dialogus, I. xi. E.

It is stated in Carta de Foresta (1217) that only verderers and foresters need be present at the June moot, and the same officers, with the agistors, at the two others. The public were exempted.

Select Pleas of the Forest, cix. et seq.

Ibid., cxvii.

Statute of Merton, c. 11.

Select Pleas of the Forest, cxxiii.

Ibid., cxxviii.–cxxix. Wild cats should perhaps be added.

See W. S. Holdsworth, History of English Law, I. 346.

See Select Charters, 552.

Some of these Magna Carta sought to guard against. See c. 48.

Rights of hunting were conferred on subjects over territory not their own. Richard I. granted permission to Alan Basset to hunt foxes, hares, and wild cats throughout the realm. Round, Ancient Charters, No. 18.

This is implied in the terms of Stephen’s Oxford Charter. An example of an act of afforestation by Henry is given in Select Pleas, 45, which shows how “a district could be afforested in a moment by the mere word of the monarch; it took centuries to free it from the royal dominion.” See Edinburgh Review, vol. cxcv. (1902), p. 459. Even the Forest Charter (cc. 1 and 3) admitted the Crown’s right to afforest woods on its own demesne—reserving, indeed, common of pasture to those with legal rights thereto.

The policy of Henry I., Stephen, and Henry II. respectively is well illustrated by the case of Waltham forest in Essex. See Round, Geoffrey de Mandeville, 377–8.

This group of grievances was partly remedied by chapters 47 and 53 of Magna Carta. The former provided for the summary disafforestation of all districts made forests by Richard and John, while the latter showed a more judicial spirit in the undoing of the similar work effected by their father. The Carta de Foresta of 1217 contained clauses which took the place of these somewhat crude provisions.

See Rot. Claus., I. 85 (dated 11th June, 1207).

For detailed information as to wastes, purprestures, and assarts with their ascending scale of penalties, see Select Pleas, lxxxii.

See Assize of Woodstock, article 7.

See Carta de Foresta, c. 12.

Ibid., c. 13; another clause (c. 14) forbade ordinary foresters to exact chiminage, and fixed the rates payable to those with vested rights at two pennies for each cart per half–year, and one half–penny for each sumpter horse.

See Assize of Woodstock, article 3.

See Select Pleas, 123 (6 Edward I.).

Select Pleas, (127 (1278–9). This was a heavy rate, the more remarkable in face of the provisions against “chiminage” in Carta de Foresta, c. 14.

Assize of Woodstock, article 14. Cf. Carta de Foresta, c. 6.

Ibid., article 2.

Ibid., article 15.

See Carta de Foresta, c. 2.

It had been the practice to exact an ox in reparation of such transgression, thus leaving the peasant without means of tilling his land. The Forest Charter (c. 6) limited the fine to 3s.

See Select Forest Pleas, p. 4.

Select Pleas, 50.

Select Pleas, 126.

See infra, under c. 47.

“Assisa et consuetudines forestae,” issued by Edward I. in 1278, although declaratory, may have done something towards curtailing discretionary authority. Statutes of Realm, I. 243; Bémont, Chartes, lxv.

See S. R. Gardiner, Hist. Engl., VII. 363, and VIII. 282.

16 Charles I. c. 16.

Commentaries, III. 72.

By 57 George III. c. 61.

In virtue of a series of Acts of which 14–15 Victoria c. 42 is the latest.

See Stephen, Commentaries, II. 465–6.

Constable and bailiff are discussed supra, c. 24, and shown to include forest magistrates, supra, c. 44.

See supra, p. 30, and cf. Blackstone, Great Charter, viii.

See c. 50.

Const. Hist., I. 578 n.

Cf. supra, p. 28.

“Nolunt leges Anglie mutare que usitate sunt et approbate.” See Statute of Merton, c. 9.

It would have been a notable anticipation of modern constitutional theory if the barons in 1215 had referred such questions to the decision of the Commune Concilium summoned as in c. 14 (q.v.).

See Select Charters, 388–391, and Madox, II. 149, with authorities there cited.

Prof. Adams seems to make too much of this chapter (Origin, 259–260). It is only a vague promise to employ honest officials: it confers no constitutional veto upon anyone. Had the function of defining fit ministers been conferred on the Common Council, it would have been a notable innovation.

See infra, c. 53.

Cf. supra, p. 212.

See Appendix for final form in charter of 1225.

See Petition of Barons, c. 11 (Sel. Chart., 384); Maitland, Sel. Pleas Man. Courts, lxxvii. For the practice in Normandy, see authorities cited by Adams, Origin, 246 n.

See New Rymer, I. 81. John had also interfered “in the time of the interdict” with what Robert fitz Walter considered his rights of patronage over Binham Priory (a cell of St. Albans). See J. H. Round, Eng. Hist. Rev., XIX. 710–11.

Petition of Barons, c. 11 (Sel. Chart., 384).

Mention of these officers is made in c. 48. The phrase “in defence” is explained supra, pp. 301–3.

Cf. supra, p. 147.

G. J. Turner, Select Pleas of Forest, xciii., points out that although forests included open country as well as woods, yet Carta de foresta spoke only of “woods” in this connection.

Cf. supra, p. 146.

Cf. supra, p. 153, and see Select Pleas, xcv.

Cf. supra, p. 154.

Cf. Select Pleas, xcix.; and see also supra, p. 156.

See Select Pleas, cv. Mr. Turner’s account of Edward’s conduct may be compared with the estimate of M. Bémont, Chartes, xlviii.

1 Edward III., stat. 2, c. 1.

See Select Pleas, cvi. There was one exception. On 26th December, 1327, Edward III. had to submit to further disafforestations in Surrey.

16 Charles I. c. 16.

The last sixteen words, inclusive of “per eosdem,” appear at the foot of both of the Cottonian versions of Magna Carta. Cf. supra, p. 166.

Contrast the more restricted meaning of the same word in c. 41.

See Rot. Pat., I. 180, cited also Select Charters, 306–7. Cf. supra, p. 42.

Cf. infra, c. 61.

Cf. supra, p. 43. The text is given Rot. Claus., 17 John, m. 27 d. and New Rymer, I. 134. It runs in name of the archbishops of Canterbury and Dublin, and the bishops of London, Winchester, Bath, Lincoln, Worcester and Coventry, comprising (with one exception) those mentioned in the preamble to Magna Carta. For text, see Appendix.

The only magnates not exposed to this dilemma were the prelates, whose celibacy cut them adrift from acknowledged family ties. They had no hostages to give, and were, further, in the normal case, exempt from fear of personal violence.

See R. Hoveden, IV. 161.

See Rotuli de Finibus, p. 119.

See R. Wendover, III. 224–5, and M. Paris, II. 523.

R. Wendover and Matthew Paris, ibid.

See authorities cited by Miss Norgate, John Lackland, p. 288.

Cf. supra, p. 25.

Cf. supra, p. 25.

See letter of 23rd June to Stephen Harengod in Appendix.

See Rotuli de Finibus, 571. The custody of hostages might be a desirable office; in 1199 Alan, the earl’s son, offered three greyhounds for the custody of a hostage of Brittany, Rotuli de Finibus, p. 29.

G. J. Turner, Trans. R.H.S., XVIII. p. 254.

See Gloucester Pleas, edited by Maitland, passim.

Pipe Roll, 12 John, cited Madox, I. 333.

Pipe Roll, 12 John, cited Madox, II. 146.

Gloucester Pleas, xiii. ff.

Pipe Roll, 12 John, cited Madox, I. 766.

Ibid., I. 606.

Ibid., I. 384.

Rot. Pat., 16 John, m. 9 (I. 125), and New Rymer, I. 126.

See M. Paris, II. 665, who calls him “Ingelardus de Athie” and describes him as vir in opere martis probatissimus. Cf. Rot. Pat., 9 Henry III. m. 9.

See Bracton’s Note–book, No. 684.

See Rot. Pat., 2 Henry III. m. 7.

Ibid., 19 Henry III.

See Testa de Neville, p. 18, and ibid., p. 120.

Rot. Pat., 9 Henry III. m. 6.

R. Wendover, IV. 66.

Annals of Dunstable, III. 68.

Mem. Roll, 28 Henry III., cited Madox, II. 201.

Mich. Communia, 29 Henry III., cited Madox, II. 229.

Some particulars respecting the other individuals named will be found in Thomson, Magna Charta, 244–5. Philip Mark was Constable of Nottingham (R. Wendover, III. 237), and Sheriff both before and after 1215 (see, e.g., Rot. Claus., I. 412), while Guy de Chanceaux in 1214 accounted for scutage of the honour of Gloucester (Madox, I. 639), and for the rent of the barony of William of Beauchamp (ibid., I. 717). See also Petit–Dutaillis, Louis VIII., p. 116; Gloucester Pleas, passim; Turner, op. cit. passim.

See Rot. Pat., 17 John, m. 23 (New Rymer, I. 134).

The elongatus of the Charter replaces the prolongatus of the Articles.

The so–called “executive clause,” the “forma securitatis ad observandum pacem” of the Articles, which became chapter 61.

This “benefit of a crusader” was extended to John in three other sets of complaints, specified in c. 53 (q.v.).

This chapter embraced not merely estates retained in John’s possession, but also those granted out anew. If the former owner recovered these, the Crown was bound to make good the loss caused by the eviction. The case of Welshmen is specially treated in c. 56 (q.v.).

The words, “et eodem modo, de justicia exhibenda,” and “vel remansuris forestis” are written at the foot of both the Cottonian versions. Cf. supra, 195 n. They make clear, rather than add to, the meaning of the rest.

It thus supplements three previous chapters (a) c. 47; (b) c. 37; and (c) c. 46 respectively.

Cf. supra, c. 36.

Bracton, folio 151b, cites the case of a champion sentenced to mutilation of a foot because he confessed that he was paid to appear. Statute of Westminster, I. (c. 41), enacted that champions need not swear to personal knowledge. Neilson, Trial by Combat, 48–51.

The appellant “in all cases except murder, that is, secret homicide, made oath as a witness that he had seen and heard the deed.” Neilson, Trial by Combat, 48.

Glanvill, XIV. c. 3.

See Bracton, II. ff., 142b, 145b; also Neilson, Trial by Combat 47, and authorities there cited.

Glanvill, XIV. c. 3.

Sel. Pleas of the Crown, No. 1.

Ibid., No. 68. Cf. No. 119.

Bracton, folio 142b.

Select Pleas of the Crown, No. 130.

The Act 6 Richard II. c. 6, to prevent the woman’s connivance, extended the right of appeal in such cases to a woman’s husband, father, or other near relative; but denied the appellee’s right to the option of defending himself by battle—thus proving no exception to the policy of discouraging the duellum wherever possible.

Glanvill, XIV. c. 3.

Fleta I. c. 33 seems to indicate the same doctrine when he speaks “de morte viri sui inter brachia sua interfecti,” although laboured explanations are sometimes attempted, e.g. Coke, Second Institute, 93. Pollock and Maitland (I. 468 n.) dismiss the phrase inter brachia sua as “only a picturesque common form.”

See Coke, Second Institute, p. 68, and contrast Pollock and Maitland, I. 468. John’s justices rejected in 1202 a woman’s claim to appeal for her father’s death, and some ten years later two claims for the death of sons. See Select Pleas of the Crown, Nos. 32, 117, and 118; yet Gloucester Pleas (No. 482) records n 1221 a woman’s appeal for a sister’s death.

A peculiarity of wording should, perhaps, be noticed. It restricts explicitly not appeals, but “arrest and imprisonment” following on appeal.

In its expanded form the clause becomes a supplement also to cc. 20, 21, and 22 (which defined procedure at amercements), and to cc. 36 and 40 (which condemned John’s practice of refusing writs and justice until heavy fines were offered).

See supra, c. 20.

See Preface to W. Coventry, II. lxix.

Middle Ages, II. 438. Hallam’s examples are all drawn from Madox, I. 507–9. O her illustrations of fines and amercements may be found under several of the foregoing chapters. Every man who began a plea and lost it, or abandoned it, was amerced.

The words “in Anglia vel in Wallia” are written at the foot of one of the Cottonian versions (cf. supra, 166 n.); but they appear in situ in the Articles of the Barons.

Cf. Harcourt’s comment, “A bad piece of work this” (Steward, 220).

See supra, p. 441.

See supra, p. 445.

No. 45 of the Articles is connected by a rude bracket with No. 46 (relating to Scotland); and a saving clause, thus made applicable to both, is added with some appearance of haste: “nisi aliter esse debeat per cartas quas rex habet, per judicium archiepiscopi et aliorum quos secum vocare voluerit.” Cf. supra, p. 38. So far as related to Scotch affairs, the King’s caveat found its way, in an altered form, into Magna Carta. See c. 59.

Annals of Waverley, sub anno 1216.

New Rymer, I. 148.

See Ramsay, Angevin Empire, 183–4. In the spring of 1185 Henry confirmed William’s claim to Huntingdon, and the Scots King transferred it to his brother David; ibid., 226 n.

See Miss Norgate, John Lackland, 66.

See Stubbs, Const. Hist., I. 596 n., and Norgate, John Lackland, 73, 78. Cf. the words “salvo jure suo” with the “et jure suo” of Magna Carta.

New Rymer, I. 103, where “Northampton” is apparently a mistake for “Norham.” See Ramsay, Angevin Empire, 421 n.

Ramsay, ibid., and authorities there cited.

Ramsay, Angevin Empire, 421, and authorities.

Rot. Claus., I. 144, and I. 157. This Eleanor was the sister of Prince Arthur. The fortunes of war had in 1202 placed both of them in John’s hands. Arthur disappeared—murdered it was supposed; Eleanor remained a prisoner for life; the Scots princesses were virtually her fellow–prisoners for a time in Corfe Castle.

See supra, c. 6.

New Rymer, I. 104. See also W. Coventry, II. 206.

See New Rymer, I. 116.

Both ladies, however, remained prisoners after Henry III.’s accession. Peter de Maulay, constable of Corfe Castle, was, in that King’s fifth year, credited with sums expended on their behalf. Rot. Claus., I. 466; see also I. 483. Both found permanent homes in England—Margaret as wife of Hubert de Burgh, Isabel as wife of Roger Bigod. See Ramsay, Angevin Empire, 421, and authorities there cited.

No. 46 of the Articles referred the question of Alexander’s “right” to the judgment of Langton and his nominees, for which Magna Carta substituted “judgment of his peers in our court.”

New Rymer, I. 135.

M. Paris, II. 642.

New Rymer, I. 148.

Rot. Pat., I. 93.

Harcourt, Steward, 221, treats this chapter as extending to manorial courts the principles regulating the judicium parium and amercements.

Second Institute, 77.

Cf. supra, p. 113.

Thomson, Magna Carta, 269, and authorities there cited.

Const. Hist., I. 570. Cf. supra, p. 117.

History of Great Britain, VI. 74 (1823). See also Henshall, History of South Britain, cited Thomson, Magna Carta, 268–9.

See c. 46 of 1217.

The words “in perpetuum” are written at the foot of one of the Cottonian versions. See supra, 166 n.

This phrase occurs in the 49th (and last) of the Articles, as the title of a clause separated from the others by a blank of the width of several lines of writing: “Haec est forma securitatis,” etc. The words are not used as a heading in the present chapter itself, but c. 52 refers to c. 61 as the clause “in securitate pacis,” and c. 62 refers to it as “super securitate ista.”

Histoire des ducs, 150, has a commentary on this chapter: “Over and above all this they desired that 25 barons should be chosen, and by the judgment of these 25 the King should govern them in all things, and through them redress all the wrongs that he should do to them, and they also, on the other hand, would through them redress all the wrongs that they should do to him. Also they further desired, along with all this, that the King should never have power to appoint a bailiff in his land except through the 25.” Cf. supra, p. 123 and p. 177.

Cf. S. R. Gardiner, Short History of England, 183: “a permanent organization for making war against the King.”

R. Wendover, from whom Paris borrows so freely, gives no list.

The list is from Matthew Paris, II. 604–5, as corrected by Blackstone, Great Charter, p. xx, after collation with a marginal note on the Harleian MS. of the charter (cf. supra, p. 168 n.). For biographical information, see Thomson, Magna Carta, 270–312.

These three were Earl Aumâle (a title sometimes exchanged for Earl of York, see Round, Geoffrey de Mandeville, 157 n.), William of Albini, and Geoffrey de Say (see Stubbs, Const. Hist., I. 583).

This is not the earliest reference in English law to the binding power of a majority; Liebermann, Gesetze, II. 575, points to Leges Henrici, c. 5, s. 6 (ibid., I. 549) as formulating the principle.

An alternative explanation is possible, namely, that the function of intermediary might be exercised by any four of the twenty–five. In that view, an aggrieved individual might place pressure on the King if he persuaded any four to support his claim.

Cf. supra, c. 48.

See Appendix.

It was fourteen years since London had extorted its “commune,” in this sense, from Prince John; cf. supra, c. 13.

Hantos, Magna Carta, 149, 198. Cf. Gneist, Eng. Const., 251.

Adams, Origin, 181 ff.

Hantos, op. cit., 150. Adams, Origin, 181 n., suggests a parallel from the kingdom of Jerusalem. Dr. Riess, Historische Zeitschrift, 1906, p. 170, compares also the Ephors of Sparta.

Liber de Antiquis Legibus, 53.

Adams, Pol. Hist. Eng., II. 439.

Cf. Adams, Origin, 276 n.

See supra, p. 129.

Dr. Riess, Historische Zeitschrift, 1906, p. 170, thinks this goes too far. Cf., however, Adams, Origin, 179: John “was reduced to the function of executing the judgments of a court not his own.”

Cf. Adams, Origin, 179: “It was not finally to be the way of the constitution.”

Cf. supra, pp. 159–164, for a sketch of Edward’s policy.

Chron. Maj., II. 605–6.

Const. Hist., I. 583 n.

John Lackland, 236.

One version of the narrative of Matthew Paris is fuller than the other. “Isti omnes juraverunt quod obsequerentur mandato viginti quinque baronum” of the first becomes “Omnes isti juraverunt cogere si opus esset ipsos xxv. barones ut rectificarent regem. Et etiam cogere ipsum si mutato animo forte recalcitraret” in the second, II. 606 n.

See supra, p. 43, and Protest in Appendix.

See supra, p. 43. The text is given in Appendix. Thirteen of the twenty–five executors are mentioned by name as agreeing to this new treaty; cf. Wendover, III. 319. A third sanction appears in the garbled versions of the Charter given by Wendover (III. 317) and M. Paris (II. 603): the constables of the four royal castles of Northampton, Kenilworth, Nottingham, and Scarborough were to swear to hold these strongholds under orders of the twenty–five. This clause has not been found in any known copy of any issue of Magna Carta: cf. Luard’s Preface to M. Paris, II. xxxiii to xxxvi.

Cf. supra, p. 45.

See folio 234. Compare supra, p. 41: also R. L. Poole in Engl. Hist. Rev., XXVIII. 448 ff. The text, as reproduced by Bémont, Chartes, 35, runs as follows: “Omnibus Christi fidelibus ad quos presens scriptum pervenerit, Stephanus Dei gratia Cantuariensis archiepiscopus, tocius Anglie primas et sancte romane ecclesie cardinalis, Henricus, eadem gratia Dublinensis archiepiscopus, Willelmus Londoniensis, Petrus Wintoniensis, Joscelinus Bathoniensis et Glastoniensis, Hugo Lincolniensis, Walterus Wigorniensis, Willelmus Coventriensis et Benedictus Roffensis, divina miseracione episcopi, et magister Pandulfus domini pape subdiaconus et familiaris, salutem in Domino. Sciatis nos inspexisse cartam quam dominus noster Johannes illustris rex Anglie fecit comitibus, baronibus et liberis hominibus suis Anglie de libertate sancte ecclesie et libertatibus et liberis consuetudinibus suis eisdem ab eo concessis sub hac forma . . . . . . . . . [Here follows the text of John’s Magna Carta] . . . . . . Et ne huic forme predicte aliquid possit addi vel ab eadem aliquid possit subtrahi vel minui, huic scripto sigilla nostra apposuimus.”

Cf. supra, p. 40.

There are no signatures to the document. The frequent references to “the signing of the Great Charter” are thus inaccurate, if “signing” is taken in its modern sense of “subscribing,” but may perhaps be justified by a reference to signum in its original meaning of “a seal.” To imprint a seal was, in a sense, “to sign.” Reasons have already been given for holding that Magna Carta, in spite of its mention of its own date as 15th June, was actually sealed on the 19th. See supra, pp. 48–9.

The text is taken from Liebermann, Gesetze, I. 521. Cf. Trans. R.H.S. viii. 21 ff., for an exhaustive discussion of the various copies of the lost charter. For commentary, cf. supra, pp. 96–101. Liebermann shows the striking variations of the opening and ending clauses: the preamble varied with the persons to whom each copy was addressed. Cf. R. L. Poole, Eng. Hist. Rev., XXVIII. 444 ff.

The text is founded on that of the Statutes of the Realm, I. 3, which follows the Exeter version. Cf. Bémont, Chartes, 8–10, who discusses the various editions. Dr. R. L. Poole has noted the variants of an original of the Charter preserved in the muniment room of Salisbury Cathedral; see Report on Manuscripts in Various Collections, I. 384–5 (Historical Manuscripts Commission, 1901). Two of these variants have been here adopted: (a) “regem Anglie” for “regem Anglorum” and (b) “postmodum” added after “pontifice.”

The text is taken from that given in Statutes of the Realm, I. 4, which is founded on a copy of the original preserved in the British Museum (Cotton, Claudius D. II., folio 107). Cf. Bémont, Chartes, 12–14.

For a discussion of the nature, date, and historical context of this document see supra, pp. 171–5 and Index. The text is founded upon that published by Mr. J. H. Round in the English Historical Review, VIII. 288, but effect has been given to most of the emendations suggested by Mr. Hubert Hall and Mr. G. W. Prothero. Cf. ibid., IX. 117 and 326. The twelve clauses are here numbered for convenience of reference, although no numbers appear in the MS.

The text is taken from that of the Statutes of the Realm, I. 7–8, which is founded on the original in the British Museum. See supra, pp. 170–1. Cf. Bémont, Chartes, 15–23.

The text follows that of New Rymer, I. 133, but has been collated with Rot. Pat., I. 143 (17 John, m. 23) and two corrections made. This writ is referred to supra, p. 41 n., where its date is discussed.

See supra, p. 42. The text is given in New Rymer, I. 134, and in Rot. Pat., I. 144 (17 John, m. 23).

See supra, p. 42. The text is given by New Rymer, I. 134, and in Rot. Pat., I. 134 (17 John, m. 21). A French version appears in D’Achery, Spicilegium, XII. 573, and in Bémont, Chartes, XXIV. n.

See supra, pp. 42–3, and 440. The text is taken from Rot. Pat., I. 180 (17 John, m. 23 d.). It will be found also in New Rymer, I. 134, and in Stubbs’ Sel. Chart., 306–7.

See supra, pp. 43, and 477. The text is taken from New Rymer, I. 133, on the authority of Rot. Claus., 17 John, m. 27 d. It is printed by Blackstone, Great Charter, 25–6.

See supra, pp. 43, and 440. The protest is recorded in Rot. Claus., 17 John m. 27 d., and is printed in New Rymer, I. 134.

See supra, p. 43. The protest is printed in Rot. Pat., I. 144 (17 m. 21 d.), and also in New Rymer, I. 134.

This is the definitive form of the Great Charter, as confirmed by Edward I. in 1297 and many times thereafter. See supra, p. 154. The text is taken from Statutes of the Realm, I. 22–25. Words not found in the Charter of 1215 are here printed in italics. The footnotes (in preparing which frequent reference has been made to Bémont’s Chartes) give the principal variants occurring in the Charters of 1215, 1216, and 1217, as compared with that of 1225. The numbers commonly used (and here adopted) for the chapters of the issue of 1225 do not agree with those used for similar chapters of the issue of 1217. The numbers in brackets are those of corresponding chapters of 1215.

Justiciariis, forestariis follow baronibus in the issues of 1215 and 1216, both of which omit prioribus.

The sentence following “sciatis” differs in each preamble. For that of 1215, see supra, pp. 185–6.

The Charter of 1216 reads: Sciatis nos, intuitu Dei et pro salute anime nostre et omnium antecessorum et successorum nostrorum, ad honorem Dei et exaltationem sancte ecclesie et emendationem regni nostri, per consilium venerabilium patrum nostrorum domini Gualonis titulo sancti Martini presbiteri cardinalis, apostolici sedis legati, Petri Wintoniensis, Reineri de Sancto Asapho, Jocelini Batthoniensis et Glastoniensis, Simonis Exoniensis, Ricardi Cicestriensis, Willelmi Coventriensis, Benedicti Roffensis, Henrici Landavensis, Menevensis, Bangorensis et Sylvestri Wygorniensis episcoporum, et nobilium virorum Willelmi Mariscalli, comitis Penbrocie, Ranulfi comitis Cestrie, Willelmi de Ferrariis comitis Derebie, Willelmi comitis Albemarle, Huberti de Burgo justiciarii nostri, Savarici de Maloleone, Willelmi Brigwerre patris, Willelmi Brigwerre filii, Roberti de Crutenay, Falkesii de Breaute, Reginaldi de Vautort, Walteri de Lascy, Hugonis de Mortuomari, Johannis de Monemute, Walteri de Bellocampo, Walteri de Clifford, Roberti de Mortuomari, Willelmi de Cantilupo, Mathei filii Hereberti, Johannis Mariscalli, Alani Bassett, Philippi de Albiniaco, Johannis Extranei et aliorum fidelium nostrorum: (i) Imprimis concessisse Deo et hac presenti carta confirmasse . . . .

The Charter of 1217 reads: Sciatis quod, intuitu Dei et pro salute anime nostre et animarum antecessorum et successorum nostrorum, ad exaltationem sancte ecclesie et emendationem regni nostri, concessimus et hac presenti carta confirmavimus pro nobis et heredibus nostris in perpetuum, de consilio venerabilis patris nostri domini Gualonis titulo Sancti Martini presbiteri cardinalis et apostolice sedis legati, domini Walteri Eboracensis archiepiscopi, Willelmi Londoniensis episcopi et aliorum episcoporum Anglie, et Willelmi Mariscalli comitis Pembrocie, rectoris nostri et regni nostri, et aliorum fidelium, comitum et baronum nostrorum Anglie, has libertates subscriptas tenendas in regno nostro Anglie in perpetuum.

Concessisse, in 1215 and 1216.

Confirmasse, in 1215 and 1216.

Omnia, omitted also in 1216 and 1217.

For the important clause occurring in 1215 between illesas and Concessimus, see supra, p. 190.

In perpetuum, omitted also in 1216 and 1217.

Suus, in 1215.

The Inspeximus of 1297 reads “marcas” in place of “libras.” See supra, p. 201. Cf. Bracton, II. c. 36, and other authorities cited by Bémont, Chartes, 47 n.

Et connects etatem and fuerit in custodia in 1215, the intervening words being omitted.

Committatur, in 1215, 1216 and 1217.

Different ending in 1215; see supra, p. 210.

An additional clause occurs in 1215; see supra, p. 212.

Tenuerint, in 1216 and 1217.

In domo mariti sui, in 1215 and 1216; in capitali mesuagio mariti sui, in 1217.

The words et habeat to ad hostium ecclesie are omitted also in 1216.

Maritandum, in 1216; a contraction occurs in 1217, which may stand for either termination.

De quo tenuerit, in 1215.

Nec nos nec ballivi, in 1215.

Sufficiunt, in 1215, 1216 and 1217.

Sufficit, in 1215.

De, in 1215.

Donec, in 1215.

Solverint, in 1215, 1216 and 1217.

Three additional chapters (10, 11 and 12) occur in 1215.

Et civitas, in 1215.

Tam per terras, quam per aquas, in 1215.

Two additional chapters (14 and 15) occur in 1215.

Et de ultima presentacione, added in 1215.

Duos justiciarios, in 1215.

Per quatuor vices in anno, in 1215, which concludes somewhat differently, see supra, p. 296. The charter of 1216 is practically the same, here, as that of 1215; while that of 1225 reproduces that of 1217.

An additional chapter (19) occurs in 1215.

Alterius quam noster, omitted also in 1216; first inserted in 1217.

Inciderint, in 1215.

Sacramenta, in 1217.

This reads in 1215: Nullus clericus amercietur de laico tenemento suo, nisi secundum modum aliorum predictorum, et non secundum beneficii sui ecclesiastici.

In 1216: Nullus clericus amercietur, nisi secundum formam predictorum, et non secundum quantitatem beneficii sui ecclesiastici.

The Charter of 1217 is here identical with that of 1225, except that sed takes the place of set.

Debent, in 1215.

Compare with last clause of c. 47 of 1215, which was omitted in 1216. The Charter of 1217 here resembles that of 1225.

An additional chapter (25) occurs in 1215; see supra, p. 317, which should be compared with c. 35 of 1225.

Omitted in 1216.

An additional chapter (27) occurs in 1215; see supra, p. 326.

Alius ballivus noster, in 1215, which omits ejus.

In 1216 the last phrase reads: si autem de villa fuerit, teneatur infra tres septimanas precium reddere.

Si facere voluerit custodiam illam, in 1215.

Eum comes after miserimus in 1215.

The words in italics here are omitted also in 1216.

Aliquis alius, in 1215.

Alicujus liberi hominis, in 1215.

Nisi de voluntate ipsius liberi hominis, in 1215.

This chapter is not in 1216, but first occurs in 1217.

Nec alii, omitted also in 1216.

Ipsius, in place of illius, in 1215.

Illorum, in place of eorum, in 1215.

De Tamisia, et de Medewaye, in 1215.

Libero follows aliquo, in 1297.

Amittere possit, in 1215; omittere possit, in 1216.

Autem, in 1215.

Vel capiatur, after detur, in 1215.

The words in italics are omitted also in 1216.

Et for nec, in 1216; vel in 1217.

The words in italics are omitted also in 1216.

Aut, in 1215.

Aquas, in 1216.

Et, in 1215 and 1217.

Malis toltis, in 1215.

An additional chapter (42) occurs in 1215.

Eskaetis, after aliis, in 1215.

Faciat, for fiat, in 1215.

Si baronia illa esset, in 1215; si terra illa esset, in 1216; si illa esset, in 1217.

The words in italics are omitted also in 1216.

Two additional chapters (44 and 45) occur in 1215.

The charter of 1215 reads: omnes barones qui fundaverunt abbatias, unde habent cartas regum Anglie, vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut habere debent.

Seven additional chapters (47 to 53) occur in 1215. The charter of 1216 omits cc. 32 and 33 of 1225, but has instead of them three chapters of which c. 36 is the same as c. 44 of 1215, except that sunt appears for sint; c. 37 is the same as c. 46 of 1215, as quoted in last note, except that the words et sicut supra declaratum est are added at the end; c. 38 is of the same tenor as c. 47 of 1215, except that John’s tempore nostro is changed to meet the altered circumstances.

The charter of 1216 (like that of 1215) omits cc. 35, 36, and 37 of 1225 (all of which occur in 1217). C. 35 of 1225, however, should be compared with c. 25 of 1215, and c. 37 of 1225 with c. 12 of 1215.

The charter of 1215 has five additional chapters here (55 to 59), of which c. 56 appears in 1216 as c. 40, with the alteration made necessary by the new reign.

Eam illi (in place of illam ei), in 1217.

Receperit (in place of recepit), in 1217.

Consuevit (in place of solebat), in 1217.

The last sentence, from Et salve onwards, is omitted in 1217.

After erga suos, each charter proceeds differently. The charter of 1215 has three additional chapters (61, 62, and 63, q.v.).

The charter of 1216 has one additional chapter: Quia vero quedam capitula in priori (sic) carta continebantur que gravia et dubitabilia videbantur, scilicet de scutagiis et auxiliis assidendis, de debitis Judeorum et aliorum et de libertate exeundi de regno nostro, vel redeundi in regnum, et de forestis et forestariis, warrenis et warrenariis, et de consuetudinis comitatum, et de ripariis et earum custodibus, placuit supradictis prelatis et magnatibus ea esse in respectu quousque plenius consilium habuerimus; et tunc faciemus plenissime tam de hiis quam de aliis que occurrerint emendenda, que ad communem omnium utilitatem pertinuerint et pacem et statum nostrum et regni nostri. Quia vero sigillum nondum habuimus, presentem cartam sigillis venerabilis patris nostri domini Gualonis tituli sancti Martini presbiteri cardinalis, apostolice sedis legati, et Willelmi Mariscalli comitis Penbrocie, rectoris nostri et regni nostri, fecimus sigillari, Testibus omnibus prenominatis et aliis multis, Datum per manus predictorum domini legati et Willelmi Mariscalli, comitis Penbrocie apud Bristollum duodecimo die novembris anno regni nostri primo.

The charter of 1217 has two additional chapters (46 and 47):

C. 46: Salvis archiepiscopis, episcopis, abbatibus, prioribus, templariis, hospitalariis, comitibus, baronibus, et omnibus aliis, tam ecclesiasticis personis, quam secularibus, libertatibus et liberis consuetudinibus quas prius habuerunt—(which may be compared with the last clause of c. 37 of 1225, supra).

C. 47: Statuimus etiam, de communi consilio tocius regni nostri, quod omnia castra adulterina, videlicet ea que a principio guerre mote inter dominum Johannem patrem nostrum et barones suos Anglie constructa fuerint vel reedificata, statim deruantur. Quia vero nondum habuimus sigillum, hanc sigillis domini legati predicti et comitis Willelmi Mariscalli rectoris et regni nostri fecimus sigillari.

See supra, pp. 146–7. The text is taken from the Statutes of the Realm, I. 20–21. Bémont, Chartes, 64 ff., gives in footnotes the variants in the reissue of 1225.