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

CHAPTER FIFTY-FIVE.

Omnes fines qui injuste et contra legem terre facti sunt nobiscum, et omnia amerciamenta facta injuste et contra legem terre, omnino condonentur, vel fiat inde per judicium viginti quinque baronum de quibus fit mencio inferius in securitate pacis, vel per judicium majoris partis eorundem, una cum predicto Stephano Cantuariensi archiepiscopo, si interesse poterit, et aliis quos secum ad hoc vocare voluerit: et si interesse non poterit, nichilominus procedat negocium sine eo, ita quod, si aliquis vel aliqui de predictis viginti quinque baronibus fuerint in simili querela, amoveantur quantum ad hoc judicium, et alii loco eorum per residuos de eisdem viginti quinque, tantum ad hoc faciendum electi et jurati substituantur.

The thirty-seventh of the Articles of the Barons, forming the draft of this chapter, refers specially to one particular class of illegal fines, namely those exacted by John from defenceless widows in return for being allowed the peaceful enjoyment of their legal rights of property in their own and their husband’s estates (“pro dotibus, maritagiis, et hereditatibus”). It forms thus a natural supplement to chapter 7. The earlier chapter had confirmed widows in their rights for the future; this one remits fines unjustly taken in the past. It is probable that even the clause of the Articles of the Barons did not intend to limit its own operation to this one group of unjust fines; and it mentions amercements, without any qualification. In any view, the terms of Magna Carta were broadened out to embrace illegal fines and amercements of every sort.^[1036]

The distinction between fines and amercements, absolute in theory but tending to become obliterated in practice, has been explained in a former chapter.^[1037] The system of arbitrary fines, always so galling a feature in the Crown’s policy throughout the Middle Ages, culminated in the reign of John, whose talents were well suited to the development of its ingenious and mean details. Dr. Stubbs describes the product of his labours as “the system of fines which was elaborated into that minute and grotesque instrument of torture which all the historians of the reign have dwelt on in great detail.”^[1038] Hallam commented on this in a passage which has become classical. "The bishop of Winchester paid a ton of good wine for not reminding the king (John) to give a girdle to the countess of Albemarle; and Robert de Vaux five best palfreys, that the same king might hold his peace about Henry Pinel’s wife. Another paid four marks for leave to eat (pro licentia comedendi)."^[1039]

Unique procedure was provided by the present chapter for deciding disputes as to the legality of fines and amercements. Authority to decide was vested in a board of arbitrators to consist of thirteen or more of the twenty-five executors, together with Stephen Langton and such others as he chose to summon. No mention is made of the maximum number whom the primate might thus nominate, and there is no attempt to define their powers relative to those of the other members of the board, a somewhat unbusinesslike omission, but one which testifies to the great confidence placed in Langton by those who approved its terms. Care is taken to prevent such members of the twenty-five as were likely to be biased from sitting in judgments on suits like their own—a stipulation which might with advantage have been extended to several other chapters.

This chapter, like others addressed to the special circumstances of John’s reign, found no echo in future charters.

CHAPTER FIFTY-SIX.

Si nos disseisivimus vel elongavimus Walenses de terris vel libertatibus vel rebus aliis, sine legali judicio parium suorum, in Anglia vel in Wallia,^[1040] eis statim reddantur; et si contencio super hoc orta fuerit, tunc inde fiat in marchia per judicium parium suorum, de tenementis Anglie secundum legem Anglie, de tenementis Wallie secundum legem Wallie, de tenementis marchie secundum legem marchie. Idem facient Walenses nobis et nostris.

This is the first of three chapters directed towards redressing wrongs suffered by Welshmen: and the three taken together testify to the importance attached by the barons to the value of the Welsh alliance. Restoration is to be made (a) of illegal disseisins effected by John (chapter 56); (b) of those effected by Henry II. and Richard I. (chapter 57); and (c) of hostages and charters delivered to John as pledges of peace (chapter 58).

The present chapter does for Welshmen what the first part of chapter 52 had already done for Englishmen. The reasons for treating Welshmen separately were probably twofold, partly for the sake of emphasis, and partly because some slight differences of detail were required. “Judgment of peers,” indeed, was applied to both cases, but for the dispossessed Welshmen, “in marchia per judicium parium suorum” takes the place of the “per judicium viginti quinque baronum” provided for Englishmen in like case. The “venue” was thus apparently fixed in the marchland for all Welshmen’s cases, although three different kinds of law were to be applied according to the situation of the property in dispute. This clear indication of the existence of three distinct bodies of law, one for England, another for Wales, and a third for the marches, shows that the unifying task of the common law had not yet been completed. Interesting questions of a nature analogous to those treated by the branch of modern jurisprudence known as International Private Law must constantly have arisen. The “peers” of a Welshman were not defined; but a court composed of Welsh barons or freeholders was probably meant.

The final words of the chapter, declaring that Welshmen were to afford reciprocal redress to John and his subjects, are interesting, since they imply that Welshmen had, in some cases, successfully seized lands claimed by Englishmen. Here, as usual, the barons were mainly interested in securing their own rights.

CHAPTER FIFTY-SEVEN.

De omnibus autem illis de quibus aliquis Walensium disseisitus fuerit vel elongatus sine legali judicio parium suorum per Henricum regem patrem nostrum vel Ricardum regem fratrem nostrum, que nos in manu nostra habemus, vel que alii tenent que nos oporteat warantizare, respectum habebimus usque ad communem terminum crucesignatorum, illis exceptis de quibus placitum motum fuit vel inquisicio facta per preceptum nostrum ante suscepcionem crucis nostre: cum autem redierimus, vel si forte remanserimus a peregrinacione nostra, statim eis inde plenam justiciam exhibebimus, secundum leges Walensium et partes predictas.

The provisions here made for restoring to Welshmen estates of which they had been unjustly dispossessed by Henry or Richard are expressed in terms identical with the similar provisions made in the latter part of chapter 52 for Englishmen in like case, except for the last words, “in accordance with the laws of the Welsh in relation to the aforesaid districts,” indicating the three systems of law referred to in the previous chapter. No machinery is here specified for declaring or applying that law; the need for this indeed had been rendered remote by John’s success before the arbitrators who determined that a crusader’s privilege should be accorded him.^[1041]

The Articles of the Barons had, however, mentioned the procedure to be adopted; and a comparison of the terms of articles 25 and 44 with those of chapter 57 of the Charter suggests the antithesis between “per judicium parium suorum in curia regis” for Englishmen in such cases, and “in marchia per judicium parium suorum” for Welshmen.

CHAPTER FIFTY-EIGHT.

Nos reddemus filium Lewelini statim, et omnes obsides de Wallia, et cartas que nobis liberate fuerunt in securitatem pacis.

The treatment of hostages in general and Welsh hostages in particular has already been fully illustrated.^[1042] The patent and close rolls of the reign show a constant coming and going of these living pledges of the peace. A writ of 18th December, 1214, for example, bade Engelard de Cygony restore three Welsh nobles to Llywelyn.^[1043] Since then, new hostages, including Llywelyn’s own son, had been handed over; and charters also had apparently been pledged. John now promised unconditionally to restore all of these; and the Welsh Prince must have breathed more freely when this was fulfilled, allowing him, his son by his side, with a light heart to prepare for the hostilities against the English Crown, long seen to be inevitable and now to be resumed in alliance with the disaffected English barons.

The Articles of the Barons had to some extent treated this question of the Welsh hostages and charters as an open one, referring its final determination to the arbitration of Stephen Langton and such others as he might nominate to act with him. The point had apparently been decided in favour of the Welsh before the Charter was engrossed in its final form.^[1044]

CHAPTER FIFTY-NINE.

Nos faciemus Alexandro regi Scottorum de sororibus suis, et obsidibus reddendis, et libertatibus suis, et jure suo, secundum formam in qua faciemus aliis baronibus nostris Anglie, nisi aliter esse debeat per cartas quas habemus de Willelmo patre ipsius, quondam rege Scottorum; et hoc erit per judicium parium suorum in curia nostra.

A heterogeneous body of forces was drawn into temporary union by common hatred of John. The barons welcomed allies whether from Wales or from Scotland; if the three preceding chapters were a bid for Llywelyn’s support, this one was dictated by a desire to conciliate Alexander. John was forced to promise to restore to the king of Scots his sisters and other hostages, together with his franchises and his “right.” This last word covered Alexander’s claim to independence and also whatever title he might prove good to various English fiefs which he claimed to hold under the English Crown.

Opinions have been, and still are, sharply divided as to whether, or in what degree, Scotland was subject to feudal overlordship. Of one fact there can be no doubt; David I. and his successors, kings of Scotland, had been wont to do fealty and homage to the kings of England; but this fact has received widely different interpretations. Such homage, it is argued, was performed in respect of certain English baronies which happened to belong by hereditary right to the kings of Scotland, namely, the earldom of Huntingdon, the isolated position of which enabled the English Crown without danger to admit the claim, and the counties of Northumberland, Cumberland, and Westmoreland, the proximity of which to the border rendered their possession by a Scottish prince a source of weakness to England.^[1045] The terms in which the oath of homage was taken did not indicate for what fiefs it was sworn—whether for the English earldoms alone, or for the whole country north of Tweed as well.

The position of the kings of Scots remained ambiguous in this respect, until William the Lion was placed at a terrible disadvantage by his capture at Alnwick in 1174, after supporting the rebellion against Henry II. To gain his release he ratified the Treaty of Falaise on 8th December, of that year, by which he agreed in future to hold all his territories as fiefs of the English Crown. All his tenants in Scotland were to take a direct oath to Henry; while hostages were surrendered along with the castles of Berwick, Roxburgh, Jedburgh, Edinburgh, and Stirling.^[1046]

This notable achievement of Henry’s diplomacy was, like other portions of his life’s work, undone by his successor. Richard, preparing for his crusade of 1190, sold recklessly every right that would fetch a price: William bought back the independence of his ancient kingdom; but this restoration of the relations that had prevailed previous to 1174, involved a restoration of all the old ambiguities. When Richard died, William despatched ambassadors to England, pressing his claims upon the northern counties, promising to support John’s title in return for their admission, and adding threats.^[1047]

John avoided committing himself to a definite answer until his position in England was assured; thereafter he commanded William to do homage unconditionally. The Scots king disregarded the first summons, but yielded to a second, taking the oath in public on the summit of the hill of Lincoln, on 21st November, 1200, “reserving always his own right.”^[1048] The saving clause left everything vague as before.

In April, 1209, the king of Scots incurred John’s displeasure by sheltering bishops who had supported the policy of Rome in the matter of the interdict. William’s only son, Alexander, was demanded as a hostage, or alternatively three border castles must be delivered up. After a refusal, the old king gave in on 7th August, 1209.^[1049] Alexander did homage on behalf of his father “for the aforesaid castles and other lands which he held,” and found sureties for the payment of 15,000 marks. William’s daughters, Margaret and Isabel (the two ladies referred to in Magna Carta) became the wards of John, who had the right to bestow them in marriage—stipulations which come suspiciously near an admission of feudal vassalage.^[1050] There seems, however, to have been some understanding that one of them should wed John’s eldest son.^[1051] Margaret and Isabel, though kept virtually as prisoners in Corfe Castle, Dorset, were yet honourably and kindly treated there. The Close Rolls of the reign contain several entries (which read strangely enough among the sterner memorials of John’s diplomacy) containing orders for supplying them with articles of comfort and luxury. Thus on 6th July, 1213, John, busy as he must have been with affairs of state, instructed the Mayor of Winchester to despatch in haste for the use of his niece Eleanor and of the two Scots princesses robes of dark green (tunics and super-tunics) with capes of cambric and fur of miniver, together with twenty-three yards of good linen cloth, with light shoes for summer wear, “and the Mayor is to come himself with all the above articles to Corfe, there to receive the money for the cost of the same.”^[1052] Margaret and Isabel had no reason to complain of such treatment, whatever thoughts the Mayor of Winchester may have had of so liberal an interpretation of his civic duties.

Meanwhile, events in Scotland had favoured English pretensions. In the year 1212, William, now in advanced age, although his son was still a stripling, was compelled by internal troubles to appeal for aid to John. Cuthred, a claimant for the Scottish throne as a descendant of Donald Bane MacWilliam, having acquired a considerable following in Scotland, endeavoured to dethrone King William; and his attempt seemed likely to succeed, when English succour was asked and paid for by a Treaty signed at Norham on 7th February, 1212. By this, William granted to John the right to marry the young Alexander, then fourteen years of age, “sicut hominem suum ligium,” to whomsoever he would, at any time within the next six years, but always "without disparagement"—a phrase already explained.^[1053] William further pledged himself and his son to keep faith and allegiance to John’s son, Henry, “as their liege lord” against all mortals.^[1054] The young Scottish prince thereafter journeyed southwards in the train of John, by whom he was knighted on the 4th of March at London. In June an English army entered Scotland; the pretender was defeated and killed. William had saved his Crown, but his independence was impaired. Scotland was gradually sinking into the position of a vassal state. This was recognized at Rome. On 28th October, 1213, Innocent III., among other healing measures consequent on John’s surrender of his kingdom, ordered the king of Scotland and his son to show fealty and devotion to John, in terms similar to those addressed to the English barons.^[1055]

William the Lion died at Stirling on 4th December, 1214, and Alexander was crowned at Scone two days later,^[1056] his peaceful succession being facilitated by the knowledge that he had the support of John. On 28th April, 1215, the English king, already deep in his quarrel with the barons, acknowledged receipt of Thomas Colville and other Scotsmen as hostages.^[1057] Such was the position of affairs when John was brought to bay at Runnymede. The barons were willing to bid for the alliance of Alexander; yet it was unnecessary to bid high, since his unsatisfied claims on the northern counties predisposed him against the English king. The barons, therefore, did nothing calculated to endanger such hold as England had over the Scottish Crown. John promised to restore Alexander’s sisters and other hostages unconditionally, but used words which committed him on none of the disputed points.^[1058] Franchises and “right” were to be restored only in so far as accorded with the terms of King William’s “charters” as interpreted by the judgment of the English barons in the court of the English king.^[1059]

The allusion to the Scottish king as one among “our other barons of England” need not be pressed against Alexander any more than similar expressions should be pressed against John, whose position as Duke of Normandy and Aquitaine in no way made England a fief of the French Crown. In questions affecting his feudal position in France, John’s peers were the dukes and counts of that country; and similarly those who had a right to sit in judgment as Alexander’s peers over his claims to English fiefs were the English earls and barons. Such a tribunal was not likely to give decisions favourable to Scots pretensions at the expense of England.^[1060]

Alexander, though no party to the treaty at Runnymede, was willing to extract such benefit from it as he could. Accordingly, on 7th July, 1215, he despatched the Archbishop of St. Andrews and five laymen to John “concerning our business which we have against you to be transacted in your court.”^[1061] Nothing came of this; and when the civil war began Alexander invaded England in order to push his claims. John swore his usual oath, "by God’s teeth," that he would “chase the little red-haired fox-cub from his hiding holes.”^[1062] Neither Alexander’s participation in the war nor the subsequent efforts of diplomacy achieved settlement of the questions in dispute. None of the latent ambiguities had been finally removed when the relations between the two countries entered on a new phase as a consequence of the attempts at annexation made by Edward I., “the hammer of the Scots.”

CHAPTER SIXTY.

Omnes autem istas consuetudines predictas et libertates quas nos concessimus in regno nostro tenendas quantum ad nos pertinet erga nostros, omnes de regno nostro, tam clerici quam laici, observent quantum ad se pertinet erga suos.

It would have been as impolitic as it was obviously unfair for the barons, in their capacity of mesne lords, to inflict upon their own tenants—the men without whose support they would have been powerless at Runnymede—those very exactions which they compelled the king to abjure as against themselves. Accordingly, the benefit of the same “customs and liberties” conceded by John to his feudal tenants was—in a somewhat perfunctory manner it is true—extended also to the feudal tenants of all other magnates, whether cleric or lay. Although the reference to “customs and liberties” was quite general in its terms, it seems natural to infer that feudal grievances were chiefly, if not exclusively, intended, since the view of society indicated is feudal rather than national, and this is quite in keeping with many other clauses of the Charter.

These considerations suggest that too wide and liberal a view has sometimes been taken of the scope of this chapter. Coke treated it as affecting not merely freeholders, but the whole mass of the people, and as enunciating a doctrine of mutual responsibility between the king and his subjects. “This is the chief felicity of a kingdom, when good laws are reciprocally of prince and people (as is here undertaken) duly observed.”^[1063] In this view he has had many followers, and the present chapter has received undue emphasis as supporting a democratic interpretation of Magna Carta.^[1064] It has sometimes been referred to as “the only clause which affects the whole body of the people.”^[1065] The better view is that its provisions were confined to freeholders.

Even authors who interpret the chapter in this restricted application are still prone to exaggerate its importance. Two opposite lines of comment, in favour respectively with historians of two different schools, seem equally in need of supplement. (1) This clause is sometimes regarded as springing directly from the barons’ own uncontrolled initiative. Dr. Stubbs takes this view, contrasting its substance with similar restraints imposed by Henry I. on the barons by his Charter of Liberties, and emphasizing as specially notable the fact that the present clause was “adopted by the lords themselves.”^[1066] Such praise is unmerited; the barons had no option, since the omission of provisions to this effect would have been a glaring absurdity and a most imprudent act. (2) On the other hand, credit for the clause, equally unwarranted, has been sometimes bestowed on John. Dr. Robert Henry says that “this article, which was highly reasonable, was probably inserted at the desire of the king.”^[1067]

The substance of this chapter appears in the reissues of 1217 and 1225; but its force is there greatly impaired by the addition of a new clause inconsistent with its spirit, reserving to archbishops, bishops, abbots, priors, templars, hospitallers, earls, barons, and all other persons as well ecclesiastical as secular, all the franchises and free customs they previously had.^[1068] The chief object of this was presumably to make it clear that Magna Carta, while conferring benefits, took nothing away; but it would naturally be interpreted as a saving clause in favour of aristocrats in their relations with their dependants (“erga suos”) as well as with the Crown, thus modifying the clause which immediately preceded it.