The object of this plainly worded clause was to prevent the appointment of unsuitable men to responsible offices under the Crown. The list of officers given is a comprehensive one—justices, sheriffs, constables and bailiffs—embracing all royal ministers and agents, both of the central and of the local government, from the chief justiciar down to the humblest serjeant.^[956] The clause was directed in particular against John’s foreign favourites such as the Poitevin Bishop of Winchester, Peter des Roches,^[957] who had wielded and abused the authority of chief justiciar in 1214 when the king was abroad, or such as Engelard de Cygony and the other tools of John’s extortions, stigmatized by name in a later part of Magna Carta,^[958] who had filled various posts as sheriffs, wardens, and officials of the exchequer. Such men had no interests at stake in England, and little love for its customs and free traditions. In future John must choose a different type of servants, avoiding all such unscrupulous men, whether Englishmen or foreigners, as were ready to break the law in their master’s interests or their own. There is thus no difficulty in understanding what class of men were here excluded from office; but what class were to fill their places? Bishop Stubbs, commenting on this passage, credits the draftsmen of the Charter with an intention to secure the appointment of men well versed in legal science: “on this principle the steward of a court-leet must be a learned steward.”^[959] The clause of Magna Carta, however, refers exclusively to royal nominees, not to the officers appointed by mesne lords to preside over their feudal courts. The barons appointed their own stewards and bailiffs, and had no wish to hamper their own freedom of choice; but only that of the king. Further, it was not great lawyers whom the barons desired John to employ, but plain Englishmen with a rough-and-ready knowledge of insular usage, who would avoid arbitrary acts condemned by the law of the land. The barons at Runnymede in 1215 desired exactly what the council of St. Albans had desired on 4th August, 1213, when it issued formal writs commanding all sheriffs and foresters to observe the laws of Henry I. and to abstain from unjust exactions;^[960] and it must be remembered that these laws of Henry were but the older laws of Edward Confessor slightly amended.

The attitude of John’s barons was the same as that of Henry’s barons, when the latter declared in 1234 in such emphatic terms that they did not wish the laws of England to be changed.^[961] They were far from desiring to be governed by ministers deeply versed in the science and literature of jurisprudence, since these would necessarily have been churchmen and civilians. The laws which the Crown’s officers must know and observe were the old customary laws of England, as opposed alike to the canon law and the civil law of Rome. Honest Englishmen were wanted, with a reputation for straightforward dealing and in sympathy with native prejudice. Crown ministers might do well enough without any academic training in an age when only one short treatise on the law of England had been written (that of Glanvill); while the stewards of court leets, referred to by Bishop Stubbs, might even be ignorant of the common law, provided they were versed in “the custom of the manor.”

This provision of Magna Carta, directed primarily against alien sheriffs, castellans, and other ministers, disappeared in 1216 (without any comment in the so-called “respiting clause”), along with several provisions of a temporary nature, also directed against foreigners. Even if this well-meaning chapter of John’s Great Charter had remained in force, it would not have effected much, in the absence of adequate machinery to ensure its enforcement. In promising the selection of such ministers as knew the law and meant to keep it, John remained sole judge of the men appointed and their intentions. The clause indicated no standard of fitness to which appeal could be made, no neutral arbitrator to decide between the fit and the unfit, and no sanction to enforce compliance on an unwilling king. Half a century later, the Provisions of Oxford gave proof of some advance in political theory. They contained an expedient, crude enough it is true, for constraining royal officials to keep the law. Forms of the oaths of office to be taken by castellans and ministers of all grades were carefully provided.^[962] Even this was only a first step towards settling a problem which was not completely solved until, after the struggles of many centuries, the modern doctrine of ministerial responsibility was firmly established.

CHAPTER FORTY-SIX.

Omnes barones qui fundaverunt abbatias, unde habent cartas regum Anglie, vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut habere debent.

The religious houses of the various orders, (abbeys, priories, and convents), which had increased so rapidly in number since the reign of Henry I., fell naturally into two classes according as they had been founded by the king or by private individuals. The king or the great baron, in bestowing lands on a religious foundation, reserved, either expressly or by implication, certain valuable rights of property, of which the control over the election of the abbot or prior, together with the wardship of the fief during vacancies, were the most important. King John, while by his separate charter to the clergy he had renounced in favour of all churches and monasteries, cathedral and conventual, all control over election of prelates, had carefully reserved his rights of wardship; and the barons insisted that the proprietary rights of mesne lords who had founded religious houses, should also be respected. John however, wherever he had any plausible pretext, usurped the wardship over private foundations, in addition to his own. It would appear from the terms of a later chapter,^[963] that in 1215 the Crown actually held in ward certain abbeys founded by mesne lords, for provision is there made for their restoration. The present chapter looks to the future, forbidding new usurpations of this nature.

In the reissues of the Charter certain verbal changes occur, but it is not clear that they imply any changes of substance. In 1216 the words “and as it has been above declared” were added, implying that the rights of mesne lords were to be restricted by the rules previously laid down in chapter 5, as to wardship—rules especially applied to the lands of bishoprics and religious houses in 1216 by a clause which had no parallel in John’s charter.^[964] In 1217 three other small changes tend to widen the scope of the clause. The “barons who have founded abbeys” of John’s grant become “the patrons of abbeys”; royal “charters” become more explicitly “charters of advowson”; “ancient tenure” is expanded into “ancient tenure or possession.”^[965]

Is it possible that the influence of the Church was powerful enough at Runnymede to prohibit all mention of lay “patrons” and lay presentations or “advowsons”; whereas it was powerless to prevent the barons pressing their rights of patronage two years later? John’s promise of free canonical election^[966] had interfered with royal patronage, and Stephen Langton would be unwilling to admit a subject’s claim to rights which he had forced the Crown to renounce. The question of lay patronage, indeed, was not directly raised in any version of Magna Carta; but prior to 1215 John seems to have interfered between abbeys and their founders. On 16th August, 1200 he granted to William Marshall, Earl of Pembroke, the privilege of bestowing the pastoral staff of Nuthlegh Abbey, which lay within that nobleman’s fief; this shows that John forbade appointments without royal licence.^[967] The present chapter of Magna Carta made little difference in practice. Henry III. claimed wardship over abbeys and priories formed by earls and barons on their own fiefs, and kept them vacant, by preventing their patrons making appointments without his licence.^[968]

CHAPTER FORTY-SEVEN.

Omnes foreste que afforestate sunt tempore nostro, statim deafforestentur; et ita fiat de ripariis que per nos tempore nostro posite sunt in defenso.

An analogy may be traced between the royal prerogatives of hunting and of falconry here brought together. William the Conqueror claimed wide and ill-defined rights to “afforest” whole districts at his discretion, and in one well-known instance at least, the creation of the New Forest, he made good his claim, at the cost of much suffering to his humbler subjects. Large tracts of land were thus consecrated to the wild boar and the stag. The king claimed somewhat similar powers for protecting his preferential rights of fowling. If woods could be “afforested” for hunting, rivers might be placed “in defence” for hawking. The parallel must not be pushed too far. River-banks were preserved only for such limited period as was covered by the king’s express command; and although wardens were appointed to guard them,^[969] the Crown never established such absolute control over the banks of rivers as it did within districts declared “afforested.”

The provision of the present chapter, defining what river-banks might be “defended,” disappeared, together with the relative clause of chapter 48 (“ripariis et earum custodibus”), from the reissue of 1216; but, in the respiting clause there was promised further deliberation, which resulted in its replacement in chapter 20 of the final version of Magna Carta.^[970]

More attention is usually paid to the bearing of the present chapter upon the limits of the forests. John, if he had created no new forests, had at least extended the boundaries of the old ones. All such encroachments are to be immediately given up. This summary redress, which implies that John’s aggressions were so notorious as to admit of no dispute, should be contrasted with the more judicial procedure appointed by chapter 53 for determining encroachments made by Henry II. and Richard I. A somewhat similar distinction is also to be found in the corresponding provisions of the Forest Charter of 1217 (chapters 1 and 3); but the line is there differently drawn. Chapter 1 of the Carta de foresta extends the summary methods of redress to the disafforesting of all forests created by Richard as well as those created by John. The terms of the later document are also more detailed, making more explicit the meaning of the earlier grant. Both seem to be directed against encroachments on the rights of landowners, affording no protection to the poor. While they deny the Crown’s right to afforest private woods “to the damage of any one” (that is, of barons or freeholders owning them), they admit the legality of past acts, whether of Henry, of Richard, or of John, in afforesting Crown lands, subject always to a saving clause in favour of freeholders in right of common of pasturage.^[971]

Even if Henry III. had cordially co-operated with his barons to disafforest all tracts of ground afforested by Henry II. and his sons, difficulties of definition would still have made the task tedious. As it was, struggles to settle the boundaries embittered the relations between Crown and Parliament, until the very close of Edward Plantagenet’s reign. Only the leading steps in the slow process by which the opposition triumphed need here be mentioned.

After the issue of the Carta de foresta on 6th November, 1217,^[972] machinery was set in motion, in obedience to its terms, to ascertain the old boundaries and to disafforest all recent additions. The work of redress continued for some years, suffering no interruption from the issue of the new royal seal at Michaelmas, 1218.^[973] In face of many difficulties only slow progress was possible. More strenuous efforts followed the reissue of the Charters on 11th February, 1225;^[974] for, five days later, justices were appointed to make new perambulations, which resulted in the disafforestation of wide tracts. Henry considered himself, and with some reason, as unjustly treated by these justices, or by the local juries on whose verdicts they had relied. After he had proclaimed himself of age in January, 1227, he challenged their findings; and this has been misinterpreted as an attempt to annul the Forest Charter.^[975]

Some of the knights who had perambulated the forests were persuaded or coerced into acknowledging that they had made mistakes; and, after further inquiry, Henry restored the wider bounds. His reactionary measures went on for two years; but thereafter the frontiers were fixed, in spite of many complaints, until strong pressure compelled Edward I., towards the close of his reign, to reopen the whole question. Perambulations in 1277 and 1279 produced apparently no results. Renewed complaints were followed by new perambulations in 1299-1300, the reports of which were laid before a Parliament which met at Lincoln on 25th January, 1301. The king, as the result of hostile forces converging from several sides, had to surrender; and on 14th February he confirmed the Forest Charter, and formally agreed to the reduced boundaries as defined by the most recent inquests. Edward had acted under constraint: on this plea he subsequently obtained from Pope Clement V. a bull, dated 29th December, 1305, revoking all the concessions made at Lincoln.^[976] The Crown seemed thus to triumph once more; but the barons refused to accept defeat, forcing upon Edward II. the acceptance of the narrower bounds as they had been defined at his father’s Parliament in 1301. This settlement was confirmed by statute in the first year of the reign of Edward III.,^[977] and that king failed in all attempts to escape from its provisions. Thus the authoritative pronouncement made in 1301 by the Parliament of Lincoln furnished the basis on which the protracted controversy was finally determined.^[978]

The further history of the forest boundaries may be told in a few sentences. No changes were made until the sixteenth century. When Henry VIII. afforested the districts surrounding Hampton Court in 1540, he did so by consent of Parliament, and on condition of compensating all those who suffered damage. The same course was followed by Charles I. in creating the Forest of Richmond in 1634. Finally, as a result of the attempts of the Stewarts to revive obsolete forest rights, a statute of the Long Parliament, reciting the Act of 1327, “ordained that the old perambulation of the forest in the time of King Edward the First should be thenceforth holden in like form as it was then ridden and bounded.”^[979]

CHAPTER FORTY-EIGHT.

Omnes male consuetudines de forestis et warennis, et de forestariis et warennariis, vicecomitibus et eorum ministris, ripariis et earum custodibus, statim inquirantur in quolibet comitatu per duodecim milites juratos de eodem comitatu, qui debent eligi per probos homines ejusdem comitatus, et infra quadraginta dies post inquisicionem factam, penitus, ita quod numquam revocentur, deleantur per eosdem, ita quod nos hoc sciamus prius, vel justiciarius noster, si in Anglia non fuerimus.^[980]

This chapter is mainly, though not exclusively, a forest one. It provides in a sweeping and drastic manner for the abolition of “evil customs,” three groups of which are specially emphasized: (a) those connected with forests and warrens (presumably royal warrens only), with their officials; (b) those connected with sheriffs and their subordinates; and (c) those connected with river-banks and their guardians. The word “customs” is obviously here used in its wider sense, embracing all usages and procedure, whether specially connected with pecuniary exactions or not.^[981] The word “evil” is not defined, but here (in favourable contrast to elsewhere) machinery is provided for arriving at a definition. This takes the form of a new application of the useful inquisitio. In each county a local jury of twelve knights was to be immediately chosen by “the good people” of that county, and these twelve received a mandate to hold a comprehensive inquest into “evil customs” generally. All practices condemned by them (after hearing on oath smaller local juries, doubtless) were to be abolished within forty days of the inquiry, “so that they shall never be restored.”

At the end of the chapter appears a proviso that, before actual abolition, notice must be sent to the king, or, in his absence, to his justiciar. Although such intimation was absolutely necessary, both on grounds of policy and of ordinary courtesy, it would appear that this clause was inserted only at the instance of the king’s friends; at least, it is written (as an afterthought) at the foot of two of the copies of the Great Charter.

Whether acting under pressure or from grounds of policy, John lost no time in instituting the machinery necessary for effecting this part of the reforms. On the very day on which the terms of peace were finally concluded between king and barons at Runnymede, namely, on 19th June, 1215, he began the issue of writs to sheriffs, warreners, and river bailiffs. Within a few days every one of these had been certified of the settlement arrived at, and had received commands to have twelve knights chosen by the county in the first county court, who should make sworn inquest into evil customs.^[982]

These orders were obeyed: knights were appointed in the various counties, who seem to have taken a liberal view of their own functions. Far from confining themselves to declaring customs to be evil, or even to seeing them abolished, they claimed to share with the sheriffs the exercise of the entire executive authority of the county. Some warrant for these pretensions may be found in the terms of a second series of writs issued in the king’s name on 27th June and following days. These were addressed to the sheriff and the twelve knights jointly, commanding them to make instant seizure of all who refused to take, as required in the previous writs, the oath of obedience to the twenty-five executors of the Charter.^[983] The revolutionary committee of the central government had thus in each county local agents in the twelve knights whose original duties had been to see evil customs abolished.

The hatred which all classes bore to the forest laws is well illustrated by the iconoclastic spirit in which these knights concurred with the jurors of each small district, and with all others concerned, for the drastic treatment of abuses. Moderate-minded men began to fear that these sweeping changes would virtually abolish the royal forests altogether (in their technical legal sense). Accordingly, the leading prelates, who were in large measure responsible for inducing the king to make truce at Runnymede, and were thus under a moral obligation to do what they could to prevent the barons breaking faith, issued a written protest. They declared that the chapter in question must be understood by both parties “as limited,” and “that all those customs shall remain, without which the forests cannot be preserved.”^[984] Clearly, the whole code of the forest laws was in danger of being swept out of existence, as forming one huge “evil custom.” What effect, if any, this protest had, is not known. The country was soon plunged in civil war, during the continuance of which neither side had leisure for the reform of abuses, however urgently required. In 1216 the subject was one of those “respited” for future consideration, and in 1217 an attempt was made to specify in detail those evil customs which were to be abolished. The dangerous experiment of leaving such definition to local juries in each district was not repeated.