Chapter XIII: Part IV: Historical Sequel to Magna Carta

I. Re-issues and Confirmations of the Great Charter.

While King John had accepted the reforms contained in Magna Carta unwillingly and insincerely, the advisers of his son accepted them in good faith. Three re-issues of the Charter were granted in 1216, in 1217, and in 1225, and these were followed by many confirmations, a full account of which would involve a complete political and legal history of England. The scheme of this Historical Introduction is restricted to the narration of such facts as have a direct bearing on the genesis and contents of the Charter of John. Yet no account of Magna Carta would be complete without some notice of the more important alterations contained in these three re-issues.

On 28th October, 1216, Henry of Winchester, was crowned at Gloucester before a small assemblage.[238] The young King took the usual oath as directed by the Bishop of Bath, and he also performed homage to the Pope’s representative Gualo, for the King of England was now the vassal of Rome. At a Council held at Bristol, on 11th November, William Marshal, Earl of Pembroke, was appointed _Rector regis et regni_; and, next day, the Charter was re-issued in the King’s name. This was a step of extreme importance, marking the acceptance by those in power for the time being of the programme of the baronial opposition.

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Footnote 238:

See _Annals of Waverley_, p. 286, and Stubbs, _Const. Hist._, II. 18.

The Charter in its new form was really a manifesto issued by the moderate men who rallied round the throne of the young King; it may be viewed in two aspects, as a declaration by the Regent and his co-adjutors of the policy on which they accepted office, and as a bid for the support of the barons who still adhered to the faction of the French prince. Its issue was, indeed, dictated by the crucial situation created by the presence in England of Prince Louis of France supported by a foreign army and by a large faction of the English barons who had sworn homage to him as their king. It was, therefore, framed in terms likely to conciliate such of the opposition as were still open to conciliation. Yet the new Charter could not be a verbatim re-issue of the old one. Vital alterations were required by the altered circumstances.[239] It was no longer the expression of a reluctant consent by the government of the day to the demands of its enemies, but rather a set of rules deliberately accepted by that government for its own guidance. The chief tyrant against whom the original provisions had been directed was now dead, and certain forms of tyranny, it was confidently hoped, had died with him. Restraints now placed on the Crown’s prerogatives would only hamper the free action of the men who framed them, not of their political opponents. The new beneficent government must not suffer for the sins of the old evil one. The Regent, while willing to do much for the cause of conciliation, could not afford to paralyze his own efficiency at a time when foreign invaders were in possession of one-half of England, from which it would require a supreme effort to dislodge them. In especial, the Crown, in its urgent need for money wherewith to pay the wages of its mercenaries, must suffer no unnecessary restraints upon its powers of taxation. The existing civil war made it imperative that the government should retain a free hand in exacting feudal services and in levying scutages. Moderate-minded men would readily acquiesce in the wisdom of this policy; while it was useless to modify it in the hope of conciliating the extreme party who had thrown in their lot irretrievably with Prince Louis.

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Footnote 239:

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

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The Charter of 1216 is, therefore, notable for its omissions. The chief among these may be arranged under five groups.[240] (1) Restraints placed in 1215 on the taxing power of the Crown now disappeared. The chapters which forbade the king to increase the “farms” or fixed rents of the counties and hundreds, those which defined the king’s relations with the Jews, and those which restricted the lucrative rights derived from the rigorous enforcement of the forest laws, were discarded. An even more important omission was that of the clause which abolished the Crown’s rights to increase feudal contributions arbitrarily without consent of the Common Council.

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Footnote 240:

This classification takes no account of such alterations as seem to be
merely verbal or inserted to remove ambiguities, _e.g._ upon chapters
22, 28, and 30 of the original Charter.

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(2) One clause specially valued by the national Church was also omitted. John’s grant of liberty of election by the canons of the chapters was quietly ignored; although the vague declaration that the Church “should be free” was allowed to remain.

(3) A great number of provisions of purely temporary interest naturally disappeared, among them those providing for the disbandment of mercenary troops and the dismissal from office of obnoxious individuals. Of more importance was the omission of all reference to the device adopted for enforcing the original Charter by means of the baronial committee of twenty-five Executors.

(4) A number of minor omissions of a miscellaneous nature may be grouped together; for example, chapter 27, providing that the chattels of every freeman who died intestate should be divided under the supervision of the Church; chapter 41, granting freedom to leave the kingdom, and return, without the king’s consent; chapter 45, by which the Crown restricted itself in the choice of justiciars and other officers; and the latter half of chapter 47, relating to the banks of rivers and their guardians.[241]

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Footnote 241:

These alterations show traces of some influence at work hostile to the
national Church. Not only is the promise of canonical election
withdrawn, but the omissions of the clauses regulating intestate
succession and guaranteeing freedom to leave the kingdom (a privilege
highly valued by the clergy) seem to prejudice the interests of
English churchmen. Now the papal legate was an active supporter of the
re-issue of this Charter in 1216; whereas Rome, in the crisis of June,
1215, had been bitterly opposed to the original grant of Magna Carta.
The inference is that Rome did not protest against these omissions to
the prejudice of the English Church. Why was this? The explanation
probably lies in the divergence of the interests of the national
Church from those of the Church universal. Canonical election, for
example, was nothing to Rome; successive Popes made provision for
their favourites more readily in England by bringing pressure to bear
on the King than on the monks of the various chapters. Henry III.
habitually acted on the omission; creating wide-felt discontent by
filling the English sees partly with his own foreign favourites, and
partly with ecclesiastics nominated by the Roman Curia. The King and
the Pope thus entered into a tacit partnership for their mutual
benefit at the expense of the English national Church.

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(5) These various alterations implied, incidentally rather than deliberately, the omission of all mention of such constitutional machinery as had found a place in the words of John’s Great Charter. The twenty-five Executors fell with the other temporary provisions; while chapter 14, which defined the composition and mode of summons of the _Commune Concilium_, was omitted as a matter of course, along with chapter 12, to which it had merely formed a supplement. It was apparently thought unnecessary to make any mention of the Council, and this attitude may be explained partly on the ground that the framers of the new deed took for granted its continued existence in the future as in the past, and partly by the consideration that its vital importance as a constitutional safeguard had not yet been realized. Chapter 14 of 1215, to which much importance is invariably attached by modern writers, probably held quite a subordinate place in the minds of its framers and was abandoned altogether in 1216, never to be replaced.[242]

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Footnote 242:

It is notable that it failed to find a place in the Charter of 1225,
which was paid for by the nation at the price of one-fifteenth of
moveables.

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However natural may be the explanation, the fact is no less notable that the only clauses of the original Charter which partook of a constitutional character entirely disappeared from all of its re-issues. Magna Carta as granted by Henry is purely concerned with matters which lie within the sphere of private law, and contains no attempt to devise machinery of government or to construct constitutional safeguards for the protection of national liberties. The circumstances of the King’s minority, perhaps, implied a constitutional check on the monarchy in the necessary existence of guardians, but when Henry III. attained majority, Magna Carta, deprived of its original sanctions, would, with the disappearance of the Regency, tend to become an empty record of royal promises. The entire machinery of government remained exclusively monarchic; the king, once out of leading-strings, would be restrained only by his own sense of honour and by the fear of armed resistance—by moral forces neither legal nor constitutional. The logical outcome, under the ripening process of time, was the Barons’ War.

The importance of the omissions is considerably minimized, however, by two considerations. (_a_) Many of the original provisions were merely declaratory, and their omission in 1216 by no means implied that they were then abolished. The common law remained what it had been previously, although it was not considered necessary to specify those particular parts of it in black and white. In particular, throughout the entire reign of Henry, the _Commune Concilium_ frequently met, and was always, in practice, consulted before a levy was made of any scutage or aid. (_b_) It is clearly stated in the new charter that the advisability of replacing these omitted clauses was reserved for further consideration at some more opportune occasion. In the so-called “respiting clause” (chapter 42) six topics were specially named as thus reserved because of their “grave and doubtful” import: the levying of scutages and aids, the debts of the Jews, the liberty of going from and returning to England, the forest laws, the “farms” of counties, and the customs relating to banks of rivers and their guardians. This respiting clause amounts to a definite engagement by the King to take into serious consideration at some future time (probably as soon as peace had been restored) how far it would be possible to re-insert the omitted provisions in a new charter. This promise was partially fulfilled a year later.[243]

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Footnote 243:

Dr. Stubbs propounds the theory that this re-issue of 1216 represents
a compromise whereby the central government, in return for increased
taxing powers, allowed to the feudal magnates increased rights of
jurisdiction. He gives, however, no reasons for this belief, either in
_Select Charters_, p. 339, or in his _Constitutional History_, II. 27.
It is abundantly clear that the Crown reserved a free hand for itself
in taxation, but there seems no evidence to support the other part of
the theory, namely, that feudal justice gained new ground against
royal justice in 1216 which had not been already gained in 1215.

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A practical difficulty confronted the advisers of the young King as to the execution of the Charter. No instance of a Regency had occurred since seals came into general use; and, therefore, neither law nor custom afforded precedents for the execution of documents during a king’s minority. The seal of a king, like that of any ordinary magnate, was personal to him, and not available for his heir. The custom indeed was to destroy the matrix when a death occurred, and thus to prevent its being put to improper uses. John’s great seal could no longer be used,[244] and the advisers of Henry III. shrank from the responsibility of making a new one for the infant monarch. Yet no charter would be binding unless executed with all the recognized formalities. In these circumstances it was resolved to authenticate the new Charter by impressing on it the seals of the papal legate and of the Regent. Henry was made to explain that, in the absence of a seal of his own, the Charter had been sealed with the seals of Cardinal Gualo and of William Marshal, Earl of Pembroke, “_rectoris nostri et regni nostri_.”

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Footnote 244:

It is unnecessary to invent any special catastrophe to account for the
disappearance of John’s seal. Blackstone (_Great Charter_, xxix.)
says, "King John’s great seal having been lost in passing the washes
of Lincolnshire."

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The issue of the new Charter was not immediately successful in bringing the civil war to an end; but a stream of waverers flowed from Louis to Henry, influenced partly by the success of the national faction in the field and partly by the moderate policy of the government typified by the re-issue of the Charter. On 19th May, 1217, the royalists gained a decisive victory at the battle known as the “Fair of Lincoln”; and, on 24th August following, Hubert de Burgh, the Justiciar, destroyed the fleet on which Louis depended. The French prince was compelled to sue for peace. Although negotiations were somewhat protracted, the resulting Treaty of Lambeth bears date the 11th September, 1217, the day on which they opened.[245] Several interviews took place at Lambeth between 11th and 13th September, and these were followed by a general conference at Merton, commencing on the 23rd, at which Gualo, Louis, the Regent, and many English nobles were present.[246] Some difference of opinion exists as to the exact stages of these negotiations,[247] and it seems best to treat as one whole the settlement ultimately arranged. “The treaty of Lambeth is, in practical importance, scarcely inferior to the charter itself.”[248] It marked the final acceptance by the advisers of the Crown of the substance of Magna Carta as the permanent basis of government for England in time of peace, not merely as a provisional expedient in time of war. Its terms were equally honourable to both parties: to the Regent and his supporters, because of the moderation they displayed; and to Louis who, while renouncing all claim to the English Crown, did so only on condition of a full pardon to his allies, combined with the guarantee of their cause, so far at least as that was embodied in the Charter. Ten thousand marks were paid to Louis, nominally as indemnity for his expenses; but he had in return to restore the Exchequer Rolls, the charters of the Jews (that is the rolls on which copies of their starrs or mortgages had been registered),[249] the Charters of Liberties granted by John at Runnymede, and all other national archives in his possession. Sir William Blackstone thinks it probable that, under this clause of the treaty, the original of the Articles of the Barons was handed over, and deposited among the other archives of the Archbishop of Canterbury at Lambeth Palace where it remained until the middle of the seventeenth century.[250] One condition of this general pacification was of supreme importance—the promise given by the Regent and the papal legate to grant a new and revised Charter. This promise was fulfilled some six weeks later, a Charter of Liberties and a separate Forest Charter being issued on the 6th November, 1217.[251]

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Footnote 245:

Compare what is said of the negotiations at Runnymede, and the date of
John’s Magna Carta, _supra_, p. 48.

Footnote 246:

Blackstone, _Great Charter_, xxxiv.

Footnote 247:

_Ibid._

Footnote 248:

Stubbs, _Const. Hist._, II. 25.

Footnote 249:

See _infra_ under chapter 9.

Footnote 250:

_Great Charter_, xxxix., and _cf. infra_, p. 201.

Footnote 251:

The Forest Charter, preserved in the archives of Durham Cathedral,
bears this date, and that, in itself, affords some presumption that
the Charter of Liberties (undated) to which it forms a supplement was
executed at the same time. M. Bémont accepts this date; see his
_Chartes_, xxviii., and authorities there cited. Blackstone, _Great
Charter_, xxxix., gives the probable date as 23rd September. Dr.
Stubbs, always catholic in his sympathies, gives both dates, 23rd
September in _Sel. Charters_, 344, and 6th November in _Const. Hist._,
II. 26. This Charter of Liberties of 1217, originally found among the
archives of Gloucester Abbey and now in the Bodleian Library at
Oxford, still bears the impression of two seals—that of Gualo in
yellow wax, and that of the Regent in green. See Blackstone, _Great
Charter_, p. xxxv. The existence of the separate Forest Charter was
only surmised by Blackstone, _Ibid._, p. xlii.; but shortly after he
wrote, an original of it was found among the archives of Durham
Cathedral. For an account of this and of its discovery, see Thomson,
_Magna Charta_, pp. 443-5.

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The issue of these two Charters put the copestone to the general pacification of the kingdom. After the wide-spread havoc wrought by two years of civil war, the moment had come for a definite and final declaration by the Regent of his policy for ruling an England once more at peace. Not only was he bound in honour to this course by the Treaty of Lambeth, but the opportunity was a good one for fulfilling the promise made in chapter 42 of the Charter of 1216. Accordingly the respiting clause of that document now disappeared altogether, and some new clauses took its place. The matters reserved for further discussion as “_gravia et dubitabilia_” had now been reconsidered and were either finally abandoned, or else accepted with more or less radical alterations. The results of these deliberations are to be found in a number of additions to the Charter of Liberties of 1217, the most important of which are chapters 44 and 46, and in the terms of a Forest Charter now granted for the first time.