CHAPTER FORTY-NINE.

Omnes obsides et cartas statim reddemus que liberate fuerunt nobis ab Anglicis in securitatem pacis vel fidelis servicii.

A feature of John’s system of government was the constant demand for hostages as guarantees of his subjects’ loyalty. Such an expedient was, indeed, naturally resorted to in the Middle Ages upon special occasions, as, for example, to secure the observance of a recent treaty, or where the leaders of a rebellion, newly suppressed, had been spared on condition of future good behaviour. Thus the Conqueror, in 1067, during a forced absence from England immediately after its acquisition, took with him Edgar Atheling and the Earls Morkere and Eadwin; and many other instances readily occur. Such cases were, however, exceptional, until John established an unfortunate claim to distinction as the only king of England who ever resorted to such a policy, not merely in face of danger, but as a constant and normal practice in times of peace. It may be that his continual suspicions were well grounded; but this scarcely excuses them, since it was his own bad government which goaded his subjects into a condition of perpetual unrest.

John lived in his native England like a foreign conqueror in the midst of a hostile race, keeping sons and daughters in his clutches to answer for their parents’ attempts at revolt. This ingenious but unfair practice accords well with what we know of John’s character and general policy. It was a measure of almost devilish cunning for obtaining his immediate aim, but likely to recoil on himself whenever a critical state of his fortunes arrived. Its efficacy lay in this, that it forced the hand of discontented magnates, compelling them to decide upon the instant between the desperate expedient of open rebellion and the delivery of their children to an unscrupulous enemy, thus renouncing, perhaps for ever, the possibility of resistance or revenge, thereafter to be purchased at too dear a price—the life of the hostage. By thus paralyzing his enemies one by one, John hoped to render disaffection innocuous. Those nobles whom the tyrant did not thus control through their tenderest affections were too few for effective resistance. At the slightest show of temper, they, too, were suddenly pounced upon for hostages, thus joining the ranks of those who dared not rebel.^[985]

The entire history of the reign shows of what excessive practical importance this question of hostages had become. It abounds with examples of the varied pretexts upon which John demanded them, and of his drastic methods of visiting upon their heads the sins of those who had pledged them. Thus, in 1201, John seized the castles of certain of his barons; and one of them, William of Albini, only saved his stronghold of Belvoir by handing over his son as a hostage.^[986] In the same year, the men of York offended the king by omitting to meet him in procession when he visited their city, and by their failure to provide quarters for the billeting of his archers. The king, as usual, demanded hostages, but ultimately allowed the citizens to escape on payment of £100 to buy back the king’s goodwill.^[987]

Hardly a year passed without similar instances; but, apparently, it was not until 1208 that the practice was enforced wholesale. In that year the king’s abject fear of the effects of the Pope’s absolution of his barons from their allegiance led to his demand that every leading man in England should hand over his sons, nephews, or other blood relations to the king’s messengers.^[988]

The danger of failure to comply with such demands is illustrated by the fate of Maud of Saint-Valery, wife of William de Braose, who refused point-blank to hand over her grandchildren to a king who, she was unwise enough to say, “had murdered his captive nephew.”^[989] Two years later John, after failing to extort enormous sums in name of fines, caused her, with her eldest son, to be starved to death, a fate to which her own imprudence had doubtless contributed.^[990] John’s drastic methods of treating his hostages may also be illustrated from the chronicles of his reign, for example, from the fate of the youths he brought from Wales in June, 1211. When he heard of the Welsh rebellion of the following year, he ordered his levies to meet him at Nottingham. On his arrival, at the muster, early in September, John found awaiting him a great concourse, who were treated to an object lesson which long might haunt their dreams. His passion at white heat, John incontinently hanged eight-and-twenty defenceless boys of the noblest blood of Wales.^[991] This ghastly spectacle could not have been forgotten by any one then present, when later in the same month the king, in the throes of sudden panic, fled to London; and, secure in the fastnesses of the tower, demanded hostages wholesale from all the nobles whose fidelity he doubted. The inveterate Eustace de Vesci and Robert fitz Walter preferred to seek safety in flight, the only alternative open to them.^[992] The others, with the Nottingham horror fresh in their memories, were constrained to hand over, with feelings that may be conceived, their sons and daughters to the tender mercies of John, cunning and cruel by nature, and rendered doubly treacherous by suspicion intensified by fear.

The defects of this policy, in the long run, may be read in the events which preceded Magna Carta. When John’s hold on the hostages was relaxed, because of his preparations for the campaign of 1214, ending as it did in utter discomfiture, the disaffected were afforded their long-desired opportunity, and were stimulated to rapid action by the thought that such a chance might never occur again. John, on his return, held comparatively few hostages, and the northern barons saw that they must act, if at all, before their children were once more in the tyrant’s clutches.

Even in June, 1215, John had control over a few hostages, and the chapter now under discussion demands the immediate restoration of those of English birth (the Welsh receiving separate treatment) together with the charters which John held as additional security, very much as a creditor might hold the titles of a mortgaged property. This provision of Magna Carta was immediately carried out. Letters were dispatched to the custodians of royal hostages, ordering an immediate release.^[993] The practice of taking hostages, however, by no means ended with the granting of the Great Charter. Before a year had run, some of the insurgent nobles, repenting of their boldness, succeeded in making terms with John by the payment of large sums of money and the delivery of their sons and daughters in security for their future loyalty. Simon fitz Walter, for example, thus gave up his daughter Matilda.^[994]

CHAPTER FIFTY.

Nos amovebimus penitus de balliis parentes Gerardi de Athyes, quod de cetero nullam habeant balliam in Anglia; Engelardum de Cygony, Petrum et Gionem et Andream, de Cancellis, Gionem de Cygony, Galfridum de Martinny et fratres ejus, Philippum Marci et fratres ejus, et Galfridum nepotem ejus, et totam sequelam eorundem.

Chapter 45 sought to secure the appointment of suitable men to posts of trust under the Crown; the present chapter definitely excludes from bailiwicks (a comprehensive term embracing all grades of local magistracies) one particular group of royal favourites. Their names prove them of foreign extraction. They had come from Brabant, Flanders, and Poitou,^[995] and several of them stayed on in England and held lucrative posts under Henry III. in spite of the ban here laid upon them. The clause of John’s Charter which excluded them from office was indeed omitted from future reissues, along with chapter 45.

The reasons which had rendered them obnoxious to the barons are not explained, but may be readily imagined. They had filled the unpopular posts of collectors of customs, wardens of forests, and commanders of royal garrisons, and had distinguished themselves by their unscrupulous zeal in pushing the king’s prerogatives connected with trade, castles, forests, and purveyance.

The career of Engelard de Cygony may be taken as typical of the rest. He was a nephew of Gerard de Athyes,^[996] and was deep in the confidence of his master, as is proved by the number of responsible offices with which he was entrusted. We know that in 1211 he acted as Sheriff of Gloucester, since he accounted to the Exchequer for the firma comitatus. He further accounted for the firma burgi of Bristol,^[997] which seems to imply interference with the chartered liberties of that city. It was probably because John required his services elsewhere, that some of his sheriff’s duties were performed by deputy, a burgess named Richard rendering accounts on his behalf. Engelard also held pleas of the Crown for Gloucestershire, in violation alike of the ordinance of 1194 forbidding any sheriff to act as justiciar in his own county, and of the customary rule (confirmed only, not originated, by chapter 24 of Magna Carta) which prevented sheriffs from holding pleas of the Crown.^[998] Several entries tell of barrels of wine which he took as “prise” from ships entering the port of Bristol. For example, the exchequer officials allowed him to deduct from the amount which he owed as firma, the sum of 60s., in respect of four tuns of red wine, as certified by the king’s writ,^[999] an entry which suggests that he had purchased from the Crown the profits yielded by the prerogative of taking prise; and had then resold to the king the hogsheads actually required for the royal use at 15s. each. Engelard also guarded a rich treasure for the king at Bristol, probably as constable of the castle there, sums being paid to him ad ponendum in thesauro regis.^[1000] On one occasion he was entrusted with the custody of more than 10,000 marks of the king’s money.^[1001] Hostages, as well as bullion, were placed under his care; a writ dated 18th December, 1214, directed him to liberate three noble Welshmen whom it mentioned by name.^[1002]

In the civil war to which the treaty of peace sealed at Runnymede was a prelude, Engelard, then constable of Windsor Castle and warden of the adjacent forest of Odiham, proved active in John’s service. He successfully defended Windsor from the French faction, making vigorous sorties until relieved by the king.^[1003] He requisitioned supplies to meet the royal needs; and a plea was brought against him so long afterwards as 1232, in connection with twelve hogsheads of wine thus taken.^[1004] He acted as sheriff of Surrey under William Marshal, the Regent, but was suspended from this office in 1218 in consequence of a dispute with Earl Warenne.^[1005] He remained warden of the castle and forests for twenty years after the accession of Henry III.,^[1006] and his long services were rewarded with grants of land: in the county of Oxford he held the manor of Benzinton, with four hundreds and a half, during the king’s good pleasure;^[1007] while his son Oliver received the lucrative post of guardian over the lands and heirs of Henry de Berkley.^[1008]

In 1221, however, acting in consort with Falkes de Bréauté, Philip Mark, and other castellans, Engelard supported earl William of Aumâle in his resistance to the demands of Henry’s ministers, that all royal castles should be restored to the king. Notwithstanding the secrecy with which he sent men to the earl at Biham castle,^[1009] he fell under suspicion of treason, and escaped imprisonment only on finding hostages that he would hold the castle of Windsor for the king, and surrender it at his will.^[1010] In 1236, he was relieved of some of his offices, but not of all, for in 1254 he was two years in arrears with the firma of the manor of Odiham.^[1011] In that year, apparently, he died; for the patent roll contains a writ granting him permission to make his will, and an entry in 1255 relates how “for good service done to the king by Engelard de Cygony in his lifetime, the king granted to his executors that they should be quit of all accounts to be rendered by them at the exchequer, and of all averages of accounts, and of all debts and imposts.”^[1012] Engelard thus died, as he had lived, the trusted servant and favourite of kings. His career illustrates how the very same men who had incurred odium as the partizans of John became, when the civil war was over, the instruments of his son’s misgovernment.^[1013]

Et statim post pacis reformacionem amovebimus de regno omnes alienigenas milites, balistarios, servientes, stipendiarios, qui venerint cum equis et armis ad nocumentum regni.

John here binds himself to disband his foreign troops, who had acted as the agents of his tyrannies, keeping the native English in subjection, and ever ready to take the field in the event of rebellion. These men, who had garrisoned the royal castles which formed such formidable engines of oppression in the Middle Ages, are now to be banished “as soon as peace is restored,” an indication that, even at the date of Magna Carta, a state of virtual war was recognized. This promise was partially fulfilled. On 23rd June writs were issued for the disbandment of the mercenaries.^[1014] The renewal of the civil war, however, was followed by the enrolment of new bands of foreigners on both sides, and these men long continued to exercise an evil influence in England. Their presence was one of the main causes of the rebellion of 1224, after the suppression of which most of them were again banished with their ring-leader, Falkes de Bréauté, at their head.

The words used to describe these soldiers are comprehensive. Stipendiarii embraced mercenaries of every kind: balistarii were cross-bowmen. This weapon, imported into England as a result of the crusades, quickly superseded the earlier short bow, but had, in turn, to succumb to the long bow, which was apparently derived from Wales, and was developed as the regular weapon of one branch of the English army by Edward I., who gained by means of it many battles against the Scotch and Welsh, and made possible the later triumphs of the Black Prince and of Henry V.

CHAPTER FIFTY-TWO.

Si quis fuerit disseisitus vel elongatus per nos sine legali judicio parium suorum, de terris, castellis, libertatibus, vel jure suo, statim ea ei restituemus; et si contencio super hoc orta fuerit, tunc inde fiat per judicium viginti quinque baronum, de quibus fit mencio inferius in securitate pacis: de omnibus autem illis de quibus aliquis disseisitus fuerit vel elongatus sine legali judicio parium suorum, per Henricum regem patrem nostrum vel per Ricardum regem fratrem nostrum, que in manu nostra habemus, vel que alii tenent que nos oporteat warantizare, respectum habebimus usque ad communem terminum crucesignatorum; exceptis illis de quibus placitum motum fuit vel inquisicio facta per preceptum nostrum, ante suscepcionem crucis nostre: cum autem redierimus de peregrinacione nostra, vel si forte remanserimus a peregrinacione nostra, statim inde plenam justiciam exhibebimus.

The Charter here reverts to a topic of vital interest to the barons, the subject of illegal disseisins already raised in chapter 39, which is here supplemented. Legal remedy is provided for everyone dispossessed by the Crown “sine legali judicio parium suorum.” A distinction is drawn, however, between two classes of wrongs, according as they have been inflicted by John himself, where summary methods are to rule, or by his predecessors, where less precipitate procedure must take its course.

The Articles of the Barons had recognized the same distinction, while providing somewhat different treatment. Those disseised by Henry or Richard were to get redress "according to the judgment of their peers in the king’s court"; those disseised by John, “according to the judgment of the twenty-five barons,” that is, of the executors, to be afterwards more fully discussed. Both cases, however, were in the Articles qualified by a stipulation which calls for comment. John had taken the crusader’s vow a few months previous, and now claimed the usual three years’ “respite” allowed to those preparing for the holy war, from all legal proceedings against them. The barons, viewing John’s vow as a deliberate and notorious perjury, rejected his claim. The point was referred by the Articles of the Barons to arbitration. The prelates, whose judicium on this point was declared to be final (“appellatione remota”), and who were bound to give an early decision (“ad certum diem”), might not unreasonably have been suspected of partiality, since “taking the cross” was not a step to be belittled by churchmen. Yet they seem to have acted in a spirit of not unfair compromise, if the clause as it finally appeared in John’s Magna Carta may be taken as giving the substance of their award.

The crusader’s privilege was not allowed by Langton and his fellow-arbitrators in cases where John himself had been the disseisor; the twenty-five executors might there decide forthwith. Respite was allowed, however, in respect of the disseisins of Henry and of Richard (except where legal proceedings were already pending).^[1017] The Charter says nothing of the procedure to be adopted at the close of the three years; but there was probably no intention to depart from the terms of the Articles in this respect, namely, "judgment of peers in the king’s court."

John had good reason to consider as unfair the mode here appointed for deciding disputes as to disseisins effected by him. Many delicate points would thus be referred to the summary decision of a baronial committee, sure to be composed of his most bitter enemies—the very men, perhaps, whom he had dispossessed. If the “judgment of the twenty-five” meant for the barons “the judgment of peers,” it meant for the king the judgment of inferiors and enemies.^[1018]

CHAPTER FIFTY-THREE.

Eundem autem respectum habebimus, et eodem modo, de justicia exhibenda de forestis deafforestandis vel remansuris forestis, quas Henricus pater noster vel Ricardus frater noster afforestaverunt, et de custodiis terrarum que sunt de alieno feodo, cujusmodi custodias hucusque habuimus occasione feodi quod aliquis de nobis tenuit per servicium militare, et de abbaciis que fundate fuerint in feodo alterius quam nostro, in quibus dominus feodi dixerit se jus habere; et cum redierimus, vel si remanserimus a peregrinacione nostra, super hiis conquerentibus plenam justiciam statim exhibebimus.^[1019]

This chapter makes an advance upon the Articles of the Barons, extending to three kinds of abuses, not specially mentioned there, the respite provided in chapter 52 for redressing acts of illegal disseisin. The “close time” secured to John in virtue of his crusader’s vow is to cover (a) inquiries into the proper boundaries of forests said to have been extended by his father or by his brother; (b) wardships over the lands of under-tenants usurped by him by reason of his illegal extension of prerogative wardship, and (c) abbeys founded by mesne lords and seized by John during vacancies in violation of the rights of wardship of such founders.^[1020]

Nullus capiatur nec imprisonetur propter appellum femine de morte alterius quam viri sui.

The object of this chapter was to find a remedy for what the barons evidently considered an unfair advantage enjoyed by women appellants, who were allowed to appoint some champion to act for them in the duellum, while the accused man had to fight for himself. The connection between appeal and battle, and the distinction between battle following on appeal and battle on a writ of right, have already been explained.^[1021] In civil pleas wherein combat was legally competent, neither party could fight in person: champions were insisted on, although hired champions were condemned. In theory, these men were witnesses, each swearing that he had actually seen the seisin—that is, had been present at the infeftment of the claimant whose title he supported, or at that of his ancestor from whom he inherited the land.^[1022] In criminal pleas, on the other hand, the parties must fight in their own persons. This distinction is not so illogical as it seems at first sight, for the appellant was supposed to be an eye-witness of the crime^[1023]; and the apparent anomaly disappears when both rules of procedure are treated as deductions from the principle that the combatants in all cases were witnesses whose conflicting testimonies must be weighed in the balance of battle, with an overruling Providence holding the scales.

In a case of murder, no private accuser would be heard unless he alleged that he had seen the accused actually do the deed. The stringency of this rule was, however, modified by legal fictions. The near relation, or the feudal lord, of the slain man was treated as constructively present at his slaying, because of the closeness of the bond of blood or of homage between the two. This, at least, is the most plausible interpretation of Glanvill’s words: “No one is admissible to prove the accusation unless he be allied in blood to the deceased or be connected with him by the tie of homage or lordship, so that he can speak of the death upon testimony of his own sight.”^[1024]

The rule also which required an appellant to offer proof by his own body was relaxed in certain cases; women, men over sixty years of age, and those with broken bones or who had lost a limb, an ear, a nose, or an eye, were unable to fight effectively, and might therefore appear by proxy.^[1025] The privilege thus accorded to women was looked on with much disfavour as conferring an unfair advantage as against appellees who were not allowed to produce a substitute. Accordingly an option was given the man accused by a woman; he might, in Glanvill’s words, elect either "to abide by the woman’s proof or to purge himself by the ordeal."^[1026] This option was freely used; an appellee in 1201 was allowed to go to the ordeal of water,^[1027] while two years later when the widow of a murdered man offered to prove her accusation “as the court shall consider,” the accused was allowed to go to the ordeal, “for he has elected to bear the iron.”^[1028] After the virtual abolition of ordeal in 1215, appeals by women were usually determined per patriam (that is by the sworn verdict of a jury of neighbours). Such is the doctrine of Bracton,^[1029] whose authority is amply borne out by recorded cases. Thus in 1221, a man accused by a woman of her husband’s murder offered fifteen marks for a verdict of the jurors.^[1030]

A woman’s right of accusation (even when thus safeguarded from abuse) was restricted to two occasions, the murder of her husband and the rape of her own person. Magna Carta mentions only one of these two grounds of appeal; but silence on the subject of assault need not be interpreted as indicating any intention to deprive women of their rights in such cases.^[1031]

The present chapter of the Great Charter confines itself to appeals of murder, declaring that no woman has the right to institute proceedings in this way for the death of father, son, or friend, but only for that of her husband. Hard as this rule may seem, the barons here made no change on existing law. Glanvill does not seem to recognize the possibility of a woman’s appeal of homicide save for the death of her husband.^[1032] He seems to deduce the reason for allowing it in that case from the principle already explained: "A woman is heard in this suit accusing anyone of her husband’s death, if she speak as being an eye-witness to the fact, because husband and wife are one flesh"—another example of constructive presence.^[1033]

There seems to be no authority whatever for Coke’s hasty inference from the provisions of this chapter, that previous to 1215 a woman had an appeal for the death of any one of her “ancestors.”^[1034] The chapter, in spite of its declaratory nature, seems an ungallant one, indicating that the barons were more careful to guard themselves against unnecessary risk than to champion the cause of defenceless women.^[1035]