Magna Carta: A Commentary on the Great Charter of King John / With an Historical Introduction

PREAMBLE.^[322]

Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariis, vicecomitibus, prepositis, ministris et omnibus ballivis et fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute anime nostre et omnium antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte Ecclesie, et emendacionem regni nostri, per consilium venerabilium patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris, fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie, Willelmi comitis Warennie, Willelmi comitis Arundellie, Alani de Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla, Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii Hugonis et aliorum fidelium nostrorum.

The Great Charter of John opens, in the form common to all royal charters of the period, with a greeting from the sovereign to his magnates, his officials, and his faithful subjects, and announces, in the pious legal formula used by impious and pious kings alike, that he had made certain grants by the advice of those counsellors whom he names. Three features of this preamble call for comment.

I. The King’s Title. Some points of interest are suggested by the form of the royal style adopted by John, which is connected by an unbroken thread of development with that of William I. on the one hand, and of His Majesty, Edward VII., on the other. John’s assumption of the royal plural “Sciatis Nos” reads, in the light of subsequent history, as a tribute to his arrogance rather than to his greatness, when compared with the humbler first person singular consistently used by his more distinguished father. In this particular, however, Richard, not John, had been the innovator on the usage of Henry II.^[325] For a further alteration in the royal style John was alone responsible. To the titles borne by his father and brother, John invariably added that of “lord of Ireland,” a reminiscence of his youth. When the wide territories of Henry II., had been distributed among his elder sons, the young John (hence known as “John Lackland”) was left without a heritage, until his father bestowed on him the island of Ireland, recently appropriated; and this brought with it the right to style himself “dominus Hibernie.” This title of his younger days was not unnaturally retained by him after he had outlived all his brothers and inherited their wide lands and honours.

John began his reign in 1199 as ruler over the undivided possessions of the House of Anjou at their widest stretch, extending without a break, other than the waters of the Channel, from the Cheviots to the Pyrenees. These lands were held by John, as by his father, under a variety of titles and conditions. Anjou, the original home and fief of the hot-blooded Plantagenet race, still carried with it only the modest rank of count. In addition to this paternal title, Henry II. had, at an early age, become duke of Normandy in his mother’s right, and thereafter duke of Aquitaine by marriage with Eleanor, its heiress. These three great fiefs were held by Henry and his sons under the king of France as their lord paramount. Long before 1215, John’s bad fortune or incompetence had lost to him these wide continental dominions except the most distant of them all, his mother’s dowry of Aquitaine. His ancestral domains of Anjou and Normandy had been irretrievably lost, but he still retained their empty titles; and in this his son Henry III. followed him, grasping the shadow long after the substance had fled. Entries relating to Gascony frequently appear on the Rolls of Parliament of Edward I.; and the kings of England were styled dukes of Aquitaine, dukes of Guienne, or dukes of Gascony (the three descriptions being used indifferently) until Edward III. merged all these titles in a wider one, when he claimed the throne of France.

England alone, of John’s possessions, real and nominal, was held by the higher style of “Rex,” implying strictly sovereign rule, independent of any overlord, and retained by John in 1215 in spite of his recent acceptance of Innocent III. as feudal overlord. Of Ireland, John was still content to describe himself, as formerly, “lord,” not king. The exact meaning of the word “Dominus” in medieval charters, particularly in those of Stephen, has been made the subject of much learned controversy; which has not yet resulted in a consensus of opinion as to the technical meaning, if any, borne by the word.^[326] “Dominus,” indeed, seems to have been loosely used wherever something of substance or of ceremonial was lacking from the full sovereignty implied in the more specific name of king. In this connection much stress was laid on the solemn sacrament of coronation, implying among other things formal consecration by the church.^[327]

John’s connection with England, then, is expressed in two simple words, “Rex Anglie,” no explanation being vouchsafed of how he had acquired this title. Such vindication, indeed, was not called for, as this was no coronation charter, John having already reigned for fifteen years without any serious rival—the claims of Arthur, the son of his elder brother Geoffrey, never having been taken seriously in England.^[328] The simple words, “Dei gratia rex Anglie,” may be contrasted with the detailed titles set out in the coronation charters of Henry I. and Stephen respectively. Henry I. in 1100 had emphasized his relationship to preceding kings, describing himself as “Filius Willelmi regis post obitum fratris sui Willelmi, Dei gracia rex Anglorum”;^[329] while Stephen in April, 1136, in his second and more deliberate charter, used an entirely different formula, “Dei gracia assensu cleri et populi in regem Anglie electus, et a Willelmo Cantuarensi archiepiscopo et sancte Romane ecclesie legato consecratus, et ab Innocentio sancte Romane sedis pontifice postmodum confirmatus,”^[330] the laboured nature of which betrays the consciousness of weakness.

Thus Henry I. and Stephen each laid stress on the strong points of his title and ignored its defects. These two claims of kingship express, in a crude form, two rival theories of the title to the English Crown—(1) hereditary succession, and (2) election. Neither of these is an accurate reflection of the full theory and practice of the twelfth century, which blended both principles in proportions not easy to define with accuracy. Professor Freeman has pushed to excess the supposed right of the Witenagemot to elect the king, and has transferred wholesale to the Norman Curia (which, in some respects, took its place) all the powers enjoyed by its forerunner. A recent German writer, Dr. Oskar Rössler,^[331] has gone equally far in the opposite direction, flatly denying that the Normans ever admitted the elective element at all. The theory now usually held is a mean between these extremes, namely that the Norman Curia (or the chief magnates who usually composed it) had a limited right of selecting among the sons, brothers, or near relations of the last king, the individual best suited to succeed him. Such a right, never authoritatively enunciated, gradually sank to an empty formality. Its place was taken, to some extent, by the successful assertion by the spiritual power (usually represented by the archbishop of Canterbury), of a claim to give or withhold the consecrating oil which accompanied the church’s blessing. Without this no dominus could be recognized as rex. On this theory the descriptions of their own titles given by Henry I. and Stephen were alike incomplete: each ignored the facts which did not suit him. John, on the contrary, secure in possession, condescends on no particulars, but contents himself with the terse assertion of the fact of his kingship: “Johannes, dei gratia, Rex Anglie.”

II. The Names of the Consenting Nobles. It was natural that the Charter should place formally on record the assent of those counsellors who attended John when he made terms with his enemies, of those magnates who remained in at least nominal allegiance, and were therefore capable of acting as the mediators by whose good offices peace was for a time restored.^[332] The leading men in England during this crisis may be arranged in three groups: (1) the leaders of the great host openly opposed to John at Runnymede; (2) the agents of John’s oppressions, extreme men, mostly aliens, many of whom were in command of royal castles or of mercenary levies ready to take the field; and (3) moderate men, mostly churchmen or John’s ministers or relations, who, whatever their sympathies might be, remained in allegiance to the king and helped to arrange terms of peace—a comparatively small band, as the paucity of names recited in Magna Carta testifies.^[333] The men, here made consenters to John’s grant of Magna Carta, are again referred to, though not by name, in chapter 63, in the character of witnesses.

III. The Reasons of the Grant. The preamble contains also a statement of what purport to be John’s reasons for conceding the Charter. These are quaintly paraphrased by Coke:^[334] "Here be four notable causes of the making of this great charter rehearsed. 1. The honour of God. 2. For the health of the King’s soul. 3. For the exaltation of holy church, and fourthly, for the amendment of the Kingdom." The real reason must be sought in another direction, namely, in the army of the rebels; and John in after days did not scruple to plead consent given under threat of violence, as a reason for voiding his grant. The technical legal “consideration,” the quid pro quo which John received as the price of this confirmation of their liberties was the renewal by his opponents of the homage and fealty which they had solemnly renounced. This “consideration” was not stated in the charter, but the fact was known to all.^[335]

In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas; et ita volumus observari; quod apparet ex eo quod libertatem electionum, que maxima et magis necessaria reputatur ecclesie Anglicane, mera et spontanea voluntate, ante discordiam inter nos et barones nostros motam, concessimus et carta nostra confirmavimus, et eam obtinuimus a domino papa Innocencio tercio confirmari; quam et nos observabimus et ab heredibus nostris in perpetuum bona fide volumus observari.^[336] Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et heredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas eis et heredibus suis, de nobis et heredibus nostris.

This first of the sixty-three chapters of Magna Carta here places side by side, bracketed equal as it were, (a) a general confirmation of the privileges of the English national church, and (b) a declaration that the various civil rights to be afterwards specified in detail were granted “to all freemen” of the kingdom and to their heirs for ever. The manner of this juxtaposition of the church’s rights with the lay rights of freemen, suggests an intention to make it clear that neither group was to be treated as of more importance than the other. If the civil and political rights of the nation at large occupy the bulk of the Charter, and are defined in their minutest details, the church’s rights, of which no mention whatever had been made in the Articles of the Barons, receive here a prior place.^[337] A twofold division thus suggests itself.

I. The rights of the National Church. A general promise that the English church should be free was accompanied by a special confirmation of the separate charter recently granted guaranteeing freedom of canonical election. (1) Quod Anglicana ecclesia libera sit. This emphatic, if vague declaration, which has no counterpart in the Articles of the Barons, is repeated twice in Magna Carta, each time in a prominent position, at the beginning and the end respectively. If the work of the barons showed no special tenderness for churchmen’s privileges, Stephen Langton and his bishops were careful to have that defect remedied in the formal document by which John expressed his final consent. In extorting this promise of a “free” English church, the prelates seem to have been satisfied that they need ask for nothing more; the other particulars in which the Charter differs from its draft show no trace of clerical bias. The phrase used, indeed, was deplorably vague and elastic; it scarcely needed stretching to cover the widest encroachments of clerical arrogance. Yet the formula was by no means a new one; Henry I. and Stephen had successively confirmed the claim of holy church to its freedom.^[338]

Henry II. was careful to avoid making any such promises: his whole reign was an effort, not unsuccessful in spite of the terrible disadvantage at which he was placed by the murder of Becket, to deprive the church of what her leaders considered her legitimate “freedom.” John in 1215, however, receded from the ground occupied by his father, confirming by the Great Charter the promise given by the weakest of his Norman predecessors, in a phrase repeated in all subsequent confirmations.

It by no means follows that “freedom of the church,” as promised by Stephen, meant exactly the same thing as “freedom of the church” promised by John and his successors.^[339] The value to be attached to such assurances varied in inverse ratio to the strength of the kings who made them, and this is well illustrated by a comparison of the charters of Henry I., Stephen, and John. Henry qualifies the phrase by words which illustrate if they do not limit its application. God’s holy church was to be free “so that I shall neither sell nor let to farm, nor on the death of archbishop, bishop, or abbot, accept anything from the demesne of the church or from its tenants, until his successor has entered into possession.”^[340] This suggests a somewhat narrow interpretation of the church’s freedom—exemption mainly from the iniquities of Rufus. Stephen’s charter, on the contrary, explains or supplements the same phrase by definite declarations that the bishops should have sole jurisdiction over churchmen and their goods, and that all rights of wardship over church lands were renounced, thus making it a “large and dangerous promise.”^[341]

“Freedom of the church” had thus come in 1136 to include “benefit of clergy” in a specially sweeping form, and much besides.^[342] It is easy to understand why churchmen cherished an elastic phrase which, wide as were the privileges it already covered, might readily be stretched wider. Laymen, on the contrary, contended for a more restrictive meaning; and the Constitutions of Clarendon must be viewed primarily as an attempt to arrive at definite conclusions on disputed points of interpretation. Henry II. substantially held his ground, in spite of his nominal surrender after Becket’s murder. Thanks to his firmness, "the church’s freedom" shrank to more reasonable proportions, so that the well-known formula, when repeated by John, was emptied of much of the content found in it by Stephen’s bishops. If it still implied “benefit of clergy” that phrase was now read in a more restricted sense, while wardship over vacant sees was expressly reserved to the Crown by John. Chapter 18 of Magna Carta accepted, apparently with the approval of all classes, the principle that questions of church patronage (assizes of darrein presentment)^[343] should be settled before the King’s Justices, a concession to the civil power inconsistent with the more extreme interpretations formerly put by churchmen on the phrase.^[344]

In later reigns the pretensions of the church to privileged treatment were gradually reduced to narrow bounds, and the process of compression was facilitated by that very elasticity on which the clergy had relied as being favourable to the expansion of their claims. It was the civil government which benefited in the end from the vagueness of the words in which Magna Carta declared quod Anglicana ecclesia libera sit.^[345]

(2) Canonical election. A separate charter to the national church had been granted on 21st November, 1214, and re-issued on 15th January, 1215.^[346] Its tenor may be given in three words, “freedom of election.” In all cathedral and conventual churches and monasteries, the appointment of prelates was to be free from royal intervention for the future, provided always that licence to fill the vacancy had first been asked of the king. Now, in words, this was no new concession, but merely a confirmation of the Concordat arrived at long before between Henry I. and archbishop Anselm as a solution of the rival claims of Church and State in the election of bishops and abbots.^[347] The essence of that arrangement had been to vest solely in the canons of the chapter of the vacant diocese the nominal right to appoint the new bishop, subject, however, to the actual election taking place in the royal court or chapel—so that the king, being present, might endeavour to prevent the appointment of any churchman he objected to. The result had not been what Anselm and the papal court expected; Henry I. and his successors strenuously used or abused the influence thus reserved to them: none but royal favourites were ever appointed, and the nominally free canonical election became a sham. Churchmen had long desired to remedy this: Langton saw his opportunity, and on 21st November, 1214, secured from King John, so far as mere words could secure anything, that the right of election by the canons of the chapter should henceforth be transformed from a pretence into a reality. The bishops present at Runnymede used their influence to have a distinct confirmation of this recent concession inserted in the very forefront of Magna Carta.

Their forethought was insufficient permanently to prevent royal influence from bending canonical election to its will. Henry III., indeed, in his reissues was made to repeat the phrase quod Anglicana ecclesia libera sit, but omitted all reference alike to canonical election and to the charters of 21st November, 1214, and 15th January, 1215. Later in his reign, he took advantage of this, with the Pope’s connivance or support, to reduce again the rights of cathedral chapters in the appointment of bishops to the sinecure they had been before.

It is true that Henry III. was prone, alike by nature and from policy, to lean on the papal arm, and that the Curia at Rome rather than the Curia Regis for a time dominated the appointment to vacant sees. Henry and Innocent IV. indeed formed a tacit alliance for dividing all fat livings among their respective creatures, king’s men or pope’s men, who had little interest in England or its welfare. Edward I., impatient of foreign dictation as he was, had to submit to a partial continuance of “provisions” for hangers-on of the papacy in his insular domains; but the national church had little to gain. The canons elected the nominee of king or pope, as each was, for the moment, in the ascendant.^[348]

An interesting, if purely academic, question might be raised as to how far the rights guaranteed by Magna Carta to the English church were meant to imply freedom from papal as well as from royal interference. It is clear that the movement which culminated in the charter of 21st November, 1214, originated in England, not at Rome; and apparently Nicholas, the papal legate at that date, opposed the endeavours of Stephen Langton to obtain it. The archbishop indeed looked upon the legate as the chief obstacle to the reform by the king of the grievances of the national church.^[349] In spite of Magna Carta, then, the independence of the national church retrograded, rather than advanced, during the long alliance between Henry III. and the successive occupants of the papal throne.^[350]

II. Civil and Political Rights. After providing thus briefly for the church, chapter one proceeds to give equal prominence, but at greater length, to the grant or confirmation of secular customs and liberties. This takes here the form of a general enacting clause, leaving details to be specified in the remaining sixty-two chapters of the Charter. Some of the more important points involved have already been discussed in the Historical Introduction—for example, the feudal form of the grant, better suited, according to modern ideas, to the conveyance of a specific piece of land, than to the securing of the political and civil liberties of a mighty nation; and the vexed question as to what classes of Englishmen were intended, under the description of “freemen,” to participate in these rights.^[351]

Another interesting point, though of minor importance, calls for separate treatment. John does not state that his grants of civil and political rights had been made spontaneously. Whether deliberately or not, there is here a marked distinction between the phraseology applied to secular and to ecclesiastical rights respectively. While the concessions to churchmen are said to have been granted “mera et spontanea voluntate,” no such statement is made about the concessions to the freemen. John may have favoured this omission as strengthening his contention that the Great Charter had been sealed by him under compulsion. In the third re-issue of Henry III. (1225) this defect was remedied—the words “spontanea et bona voluntate nostra” being used in its preamble.^[352] Some importance seems to have been attributed to this addition, which formed the essence of a concession bought by the surrender of one-fifteenth of the moveable property of all estates of the realm.

CHAPTER TWO.

Si quis comitum vel baronum nostrorum, sive aliorum tenencium de nobis in capite per servicium militare, mortuus fuerit, et cum decesserit heres suus plene etatis fuerit et relevium debeat, habeat hereditatem suam per antiquum relevium; scilicet heres vel heredes comitis de baronia comitis integra per centum libras; heres vel heredes baronis de baronia integra per centum libras; heres vel heredes militis de feodo militis integro per centum solidos ad plus; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum.

All preliminaries concluded, the Charter at once attacked what was, in the barons’ eyes, the chief of John’s abuses, his arbitrary increase of feudal obligations. The Articles of the Barons, indeed, had plunged at once into this most crucial question without a word by way of pious phrases or legal formulae, such as were necessary in a regular Charter.

I. Assessment of Beliefs. Each “incident” had its own special possibilities of abuse, and the Great Charter deals with each of these in turn. The present chapter defines the reliefs to be henceforth paid to John.^[353] The vagueness of the sums at first was a natural corollary of the early doubts as to whether the hereditary principle was absolutely binding or not. The heir with title not yet recognized was keen to come to terms. The lord took as much as he could grind from the inexperience or timidity of the youthful heir; the heir tried to profit from the good nature or temporary embarrassments of the lord. All was vague; and such vagueness favoured the strongest or most wily.

A process of definition, however, was early at work; and progressed, though slowly. Public opinion set limits of variation, to go beyond which was considered unreasonable or even indecent. Some conception of a “reasonable relief” was evolved. Yet the criterion varied: the Crown might defy rules binding on others. Henry I., indeed, when bidding against duke Robert in 1099 for the throne showed himself willing, in words if not in practice, to accept the limits set by contemporary opinion. His Charter of Liberties promised that all reliefs should be justa et legitima—an elastic phrase no doubt, and one in after days liberally interpreted by the exchequer officials in their royal master’s favour. By the end of the twelfth century, when Glanvill wrote, the exact sums which could be taken by mesne lords had been fixed; although the Crown remained free to exact higher rates. Baroniae capitales, he tells us, were charged relief, not at a fixed rate, but at sums which varied juxta voluntatem et misericordiam domini regis.^[354]

Every year, however, made for definition; and custom pointed with increasing authority towards 100s. per knight’s fee, and £100 for a barony. Two entries on the Pipe Roll of 10 Richard I. amusingly illustrate the unsettled practice. A sum of £100 is described as a “reasonable relief” for a barony, and immediately this entry is stultified by a second entry of a considerable additional payment by way of “fine” to induce the king to accept the sum his own roll had just declared “reasonable.”^[355] John was more openly regardless of reason. The Pipe Roll of 1202 shows how an unfortunate heir failed to get his heritage until he paid 300 marks, with the promise of an annual “acceptable present” to the king.^[356]

If John could ask so much, what prevented him asking more? He might name a prohibitive price, and so defeat the hereditability of fiefs altogether. Such arbitrary exactions must end, so the barons were determined in 1215; custom must be defined, so as to prevail henceforth against royal discretion. The first demand of the Articles of the Barons is, “that heirs of full age shall have their heritage by the ancient relief to be set forth in the Charter.” Here it is, then, duly set forth and defined in chapter 2 of Magna Carta as £100 for an "earl’s barony," £100 for "a baron’s barony," 100s. for a knight’s fee, and a proportional part of 100s. for every fraction of a knight’s fee. This clause produced the desired effect. These rates were strictly observed by the exchequer of Henry III., as we know from the Pipe Rolls of his reign. Thus, when a certain William Pantoll was charged with £100 for his relief on the mistaken supposition that he held a “barony,” he protested that he held only five knight’s fees, and got off with the payment of £25.^[357] The relief of a barony was subsequently reduced from £100 to 100 marks. The date of this change, if we may rely on Madox,^[358] lies between the twenty-first and thirty-fifth years of Edward I.^[359]

Apparently all who paid reliefs to the king were mulcted in a further payment (calculated at 9 per cent. of the relief) in name of "Queen’s Gold," a contribution to the private purse of the Queen Consort, and collected by an official specially representing her at the exchequer.^[360]

The Charter deals only with tenure by knight’s service; nothing is said of other tenures. The explanation of the omission may possibly be different in the cases of socage and of serjeanty respectively.^[361] (a) Socage. The barons were not so vitally interested in socage, that being, in the normal case, the tenure of humbler men.^[362] In later reigns the king, like an ordinary mesne lord, contented himself with one year’s rent of socage lands in name of relief. (b) Serjeanty. The barons cannot have been indifferent to the fate of serjeanties, since many of them held great estates by such tenures. Possibly they assumed that the rules applied to knights’ fees and baronies would apply to serjeanties as well. The Crown, however, acted on a different view; large sums were frequently extorted by Henry III. By the reign of Edward I., however, the practice of the exchequer was to limit itself to one year’s rent (a sufficiently severe exaction)^[363] for serjeanties, which thus fell into line with socage.^[364]

II. Units of Assessment. Some explanation is required of the three groups into which crown estates were thus divided—knight’s fees, barons’ baronies, and earls’ baronies.

(1) Feodum militis integrum. The origin of the knight’s fee is obscured by a network of conflicting theories. A thread of connection is sometimes traced between it and the mysterious five-hide unit of Anglo-Saxon times; other authorities would ascribe its introduction into England to a definite act of some great personage—either William the Conqueror, according to Selden, who founds on a well-known but untrustworthy passage in Ordericus Vitalis, or Ranulf Flambard, according to Freeman, Stubbs, and Gneist. It seems probable that the Normans, here as elsewhere, pursued their policy of avoiding an open rupture with the past, and that the Conqueror adapted as far as possible the existing system of land tenure to his own needs. There is little doubt, in light of the evidence accumulated by Mr. Round in his Feudal England, that William I. stipulated verbally for the service of a definite number of knights from every fief bestowed by him on his Norman followers. A knight’s fee or scutum thus became a measure of military service, and of feudal assessment; servitium unius militis was a well-known legal unit. But a difficult problem arises when it is asked what definite equation, if any, existed between land and service. Three answers have been given: (a) A definite ratio exists between amount of service and extent of ground. In other words, the knight’s fee contains a fixed area of land; every five hides sent one warrior, thus preserving the old Anglo-Saxon unit.^[365] (b) The ratio lies not between service and extent, but between service and value. An estate of £20 annual rental sends one knight to the king’s wars; the normal knight’s fee contains 20 librates of land.^[366] (c) Other authorities deny that any proportion exists at all: William the Conqueror exacted from each of his grantees precisely as much or as little knight’s service as he saw fit.

Is it not possible to reconcile these divergent conclusions? Undoubtedly the Conqueror held himself bound by no fixed rules, but made exceptions where he pleased: some favoured foundations were exempt from all service whatsoever.^[367] Yet, if he distributed estates at his own free will, he did not necessarily distribute them irrationally or at random. He demanded service of knights in round numbers, 5 or 10 or 20, as he saw cause, and in normal cases he was guided by some loose sense of proportion. Where there was no reason either for preferential treatment or for special severity, service would be roughly proportionate either to the area or to the value. This rule was William’s servant, not his master, and was made to yield to many exceptions, which would amply account for the existence in later days of knight’s fees varying from 2 hides to 14 hides, instead of the normal 5.^[368] Each such fee, whatever its acreage or its rental, owed the service of one knight, and paid relief at 100s.

(2) Baronia integra. The word “barony” cannot be easily defined, on account of the many changes it has undergone.^[369] A “barony” at the Norman Conquest differed in almost every respect from a “barony” at the present day. The word baro was originally synonymous with homo, meaning, in feudal usage, a vassal of any lord. It soon became usual, however, to confine the word to king’s men; “barones” were thus identical with "crown tenants"—a considerable body at first; but a new distinction soon arose between the great men and the smaller men among their number (between barones majores and barones minores). The latter were usually called knights (milites), while “baron” was reserved for the holder of an “honour.”^[370] For determining what constituted an “honour,” however, it was impossible to lay down any absolute criterion. Mere size was not sufficient: a magnate once classed as a full “baron” might successfully claim to be only a “knight,” thus lightening some of his feudal burdens, for example this one of “reliefs.” Chapter 14 of Magna Carta helped to stereotype the division, since it stipulated that each major baro should receive an individual writ of summons to the Council, leaving the barones minores to be convened collectively through the sheriff. As the one point of certainty, where everything else was vague, these writs came to possess an exaggerated importance, and it was finally held (at a date long subsequent to Magna Carta) that the mere receipt of a special summons, if acted upon, made the recipient a baron, and entitled his heirs, in all time coming, to succeed him in what was fast hardening into a recognized title of dignity. The “barons” in 1215 knew nothing of all this; they desired merely to have the reliefs due by them taxed at a fixed rate. Each “barony” should pay £100, a sum afterwards reduced to 100 marks.

Relief was thereafter a fixed sum, while the size of the barony varied in each case. As the same holds true of the knight’s fee, it is doubly ridiculous to attempt to discover an equation between the knight’s fee and the barony founded upon the ratio of the sums payable. Coke, however, was guilty of this absurdity.^[371]

(3) Baronia comitis integra. A peculiar phrase is used in the text, an "earl’s barony" appearing where “earldom” might be expected.^[372] The reason is that “earldom” originally implied the holding of an office and not the ownership of land, whereas relief was payable for the earl’s lands or “honour,” not for his office. The Charter, therefore, uses words well fitted to make its meaning clear. The earl (or comes) was the successor of the ealdorman as local governor of a county or group of counties. His title was official, not tenurial, or even, in early times, necessarily hereditary.

Some of the ideas most intimately connected with a modern earldom were signally inappropriate to the Norman earls. At the present day an earldom is one of several “steps in the peerage,” a conception that did not then exist. At the present day it carries with it a seat in the House of Lords, whereas no instance is recorded until long after the Norman Conquest of any earl or other great man demanding as a right to be present in the king’s council: the custom of summoning all crown tenants became stereotyped only in the reign of Henry II. and was not formally recognized previous to chapter 14 of Magna Carta. At the present day, again, the hereditary principle is the chief feature of an earldom, whereas William did not admit that the office necessarily passed from father to son.^[373]

The policy of the Conqueror had been to bring each county as far as possible under his own direct authority; many districts had no earls, while in others the connection of an earl with his titular shire was reduced to a shadow, the only points of connection being the right to enjoy “the third penny” (that is, the third part pro indiviso of the profits of justice administered in the county court) and the right to bear its name. It is true that in addition the earl usually held valuable estates in the shire, but he did this only as any other landowner might. For purposes of taxation the whole of his lands, whether in his own county or elsewhere, were reckoned as one unit, here described as baronia comitis integra, the relief on which was taxed at one hundred pounds.

Very gradually in after ages, the conception of an earldom suffered change. The official character gave way before the idea of tenure, and later on the modern conception was formulated of a hereditary dignity conferring specific rank and privileges. The period of transition when the tenurial idea prevailed is illustrated by the successful attempt of Ranulf, earl of Chester and Lincoln, in the reign of Henry III. to aliene one of his two earldoms—described by him as the comitatus of Lincoln.^[374] Earls are now, like barons, created by letters patent, and need not be land-owners. Thus the words “barony” and “earldom,” so diverse in their origin and early development, were closely united in their later history.

III. Liability of Church Property to “Relief.” The Great Charter of John, unlike the Charter of Henry I. makes no mention of the lands of vacant sees in this connection, probably because the main question had long been settled in favour of the church. The position of a bishopric was, however, a peculiar one. Each prelate was a crown tenant, and his fief was reckoned a “barony,” entitling its owner to all the privileges, and saddling him with all the feudal obligations of a baron.^[375]

It was not then unnatural that, when a prelate died, the Crown should demand “relief” from his successor, in the same way as from the heir of a dead lay baron. Such demands, when made by William Rufus and his minister Flambard, met with bitter opposition. The Crown in consequence, unwilling to forego any of its feudal dues, endeavoured to shift their incidence from the revenues of the see to the shoulders of the feudal under-tenants. After bishop Wulfstan’s death on 18th January, 1095, a writ was issued in William’s name to the freeholders of the see of Worcester, calling on each of them to pay, as a relief due on their bishop’s death, a specified sum, assessed by the barons of the exchequer.^[376]

In revenge for such extortions from church lands and tenants, the historians of the day, all necessarily recruited from the clerical class, have heartily recommended Rufus and Flambard to the opprobrium of posterity. Anselm compelled Henry I. to promise amendment in his coronation Charter, which undertook to exact nothing during vacancies either from the demesne of the church or from its tenants.^[377] No corresponding promise was demanded from John, a proof that such exactions had ceased. The Crown no longer extorted relief from church lands, although wardship was, without protest, enforced during vacancies.