Chapter II: Preface

No Commentary upon Magna Carta has hitherto been written from the standpoint of modern research. No serious attempt has yet been made to supersede, or even adequately to supplement, the works of Coke and Richard Thomson, published respectively in 1642 and 1829, and now hopelessly out of date. This lack of enterprise may be due in part to a natural reluctance to undertake so laborious a task, but seems also to suggest tacit acquiescence in the opinion of Bishop Stubbs that no separate commentary is required, since “the whole of the constitutional history of England is little more than a commentary on Magna Carta.” Yet, for that very reason the Great Charter is surely worthy to be made the subject of special and detailed study, since few documents can compete with it in the variety and interest of its contents, in the vividness of its historical setting, or in the influence it has exercised on the struggle for constitutional liberty. That this conspicuous gap in our historical and legal literature should have remained so long unfilled is the more remarkable in view of the great advance, amounting almost to a revolution, which has been effected since Coke and Thomson wrote. Within the last twenty years, in especial, a wealth of new material has been explored with notable results. Discoveries have been made, profoundly affecting our views of every branch of law, every organ of government, and every aspect of social and individual life in medieval England. Nothing, however, has hitherto been done towards applying to the systematic elucidation of Magna Carta the new stores of knowledge thus accumulated.

With this object in view, I have endeavoured, throughout several years of hard, but congenial work, to collect, sift, and arrange the mass of evidence, drawn from many scattered sources, capable of throwing light upon John’s Great Charter. The results have now been condensed into the Commentary which fills two thirds of the present volume. This attempt to explain, point by point, the sixty-three chapters of Magna Carta, embracing, as these do, every topic—legal, political, economic and social—in which John and his barons felt a vital interest, has involved an analysis in some detail of the whole public and private life of England during the thirteenth century. The Commentary is preceded by a Historical Introduction, which describes the events leading to the crisis of 1215, analyzes the grievances which stirred the barons to revolt, discusses the contents and characteristics of the Charter, traces its connection with the subsequent course of English history, and gives some account of previous editions and commentaries.

While reference has been made throughout to original sources where these were available, advantage has been freely taken of the labours of others. If a debt of gratitude requires to be here acknowledged to previous commentators, a far deeper debt is due to many scholars who have, within recent years, by their labours in various fields not directly connected with Magna Carta, incidentally thrown light on topics of which the Charter treats. Of Bishop Stubbs it is almost unnecessary to speak, since his works form the common starting-point of all historians and constitutional lawyers of the present generation. Readers versed in modern literature will readily trace the influence of Prof. Maitland, Mr. J. Horace Round, Sir Frederic Pollock, Mr. L. O. Pike, and Prof. Prothero; while the numerous other authorities laid under contribution are referred to in the foot-notes and the appended bibliography. Frequent reference has been made to two independent and scholarly histories of the reign of John which have recently appeared—Miss Norgate’s _John Lackland_, and Sir James H. Ramsay’s _Angevin Empire_. Of the older books dealing directly with the subject in hand, Sir William Blackstone’s _Great Charter_ has been found the best; while among modern works the _Chartes_ of M. Charles Bémont is the most valuable. The inexhaustible stores of Madox’s _History of the Exchequer_ have also been freely drawn upon.

While these pages were passing through the press a brilliant essay by Mr. Edward Jenks appeared in the pages of _The Independent Review_ for November 1904, whose title _The Myth of Magna Carta_ indicates the unconventional and iconoclastic lines on which it proceeds. He argues with much force that the Charter was the product of the selfish action of the barons pressing their own interests, and not of any disinterested or national movement; that it was not, by any means, “a great landmark in history”; and that, instead of proving a material help in England’s advance towards constitutional freedom, it was rather “a stumbling block in the path of progress,” being entirely feudal and reactionary in its intention and effects. Finally, for most of the popular misapprehensions concerning it, he holds Sir Edward Coke responsible. How far the present writer is in agreement with these opinions will appear from the following pages: but Mr. Jenks’ position would seem to require modification in at least three respects: (1) A few of the provisions of John’s Charter are by no means of a reactionary nature. (2) Coke cannot be credited with the initiation of all, or even most, of the popular fallacies which have come, in the course of centuries, to cluster so thickly round the Charter. (3) Mr. Jenks, perhaps, undervalues the importance of traditional interpretations which, even when based on insecure historical foundations, are shown in the sequel to have proved of supreme value in the battle of freedom.

I am indebted to four friends who have kindly read my proof sheets, to Mr. W. R. J. Gray, and Mr. Robert A. Moody, whose good offices in this direction are not now rendered for the first time, and to two of the members of my Honours Class of 1903-4, Mr. A. C. Black, Jun., and Mr. D. B. Mungo, all of whom have been zealous in help and fertile in suggestion.

KNIGHTSWOOD, ELDERSLIE,
RENFREWSHIRE, _6th February, 1905_

CONTENTS

HISTORICAL INTRODUCTION.

PART I. EVENTS LEADING TO MAGNA CARTA:

PAGE

I. William I. to Henry II.: Main Problem, the 1
Monarchy,

II. William I. to Henry II.: Problem of Local 16
Government,

III. William I. to Henry II.: Problem of Church and 20
State,

IV. Richard I. and John, 23

V. The Years of Crisis, 33

VI. Runnymede, and after, 43

PART II. FEUDAL GRIEVANCES AND MAGNA CARTA:

I. The Immediate Causes of the Crisis, 58

II. The Crown and Feudal Obligations, 64

III. Royal Justice and Feudal Justice, 93

PART III. MAGNA CARTA: ITS FORM AND CONTENTS:

I. Its Prototypes: Earlier Charters, 113

II. Magna Carta: Its Form and Juridical Nature, 123

III. Magna Carta: Its Contents and Characteristics, 129

IV. Magna Carta: An Estimate of its Value, 144

V. Magna Carta: Its Defects, 150

VI. Magna Carta: Value of Traditional Interpretations, 154

VII. Magna Carta: Its Traditional Relation to Trial by 158
Jury,

PART IV. HISTORICAL SEQUEL TO MAGNA CARTA:

I. Reissues and Confirmations of the Great Charter, 164

II. Magna Carta and the Reforms of Edward I., 186

PART V. MAGNA CARTA; ORIGINAL VERSIONS, PRINTED EDITIONS, AND
COMMENTARIES:

I. Manuscripts of Magna Carta and Relative Documents, 194

II. Previous Editions and Commentaries, 205

MAGNA CARTA:
TEXT, TRANSLATION, COMMENTARY.

PREAMBLE.

I. The King’s Title. II. The names of the consenting 215
Nobles. III. The Reasons of the Grant,

CHAPTER ONE.

I. The Rights of the National Church: (1) _Quod 222
Anglicana ecclesia libera sit_; (2) Canonical
Election. II. Civil and Political Rights,

CHAPTER TWO.

I. Assessment of Reliefs. II. Units of Assessment: (1) 229
_Feodum militis integrum_; (2) _Baronia integra_; (3)
_Baronia comitis integra._ III. Liability of Church
Property to Reliefs,

CHAPTER THREE.

No Relief after Wardship, 239

CHAPTER FOUR.

Wardship: (1) The Definition of Waste; (2) The 241
Punishment of Wasteful Guardians; (3) Provision
against Recurrence,

CHAPTER FIVE.

I. The Obligations of the Warden of a Lay-fief. II. 246
Wardship over Vacant Sees,

CHAPTER SIX.

The Marriage of Wards, 250

CHAPTER SEVEN.

I. The Widow’s Share of Real Estate: (1) Dower; (2) 253
_Maritagium_; (3) _Hereditas._ II. Her Share of
Personal Estate. III. Provision for her Immediate
Needs: (1) Quarantine; (2) Estovers of Common,

CHAPTER EIGHT.

Marriage of Widows, 260

CHAPTER NINE.

Procedure for Enforcing Payment of Debts, 261

CHAPTER TEN.

Usury. I. The History of the Jews in England. II. Legal 265
Position of the Jews,

CHAPTER ELEVEN.

Widows and Children of Debtors to be Protected against 273
Creditors,

CHAPTER TWELVE.

I. Protection of Crown Tenants from Arbitrary Exactions: 274
(1) Scutage; (2) Feudal Aids. II. Protection of
Citizens of London: Aids and Tallages. III. Magna
Carta and the Theory of Parliamentary Taxation,

CHAPTER THIRTEEN.

Liberties and Free Customs of London, 284

CHAPTER FOURTEEN.

Method of obtaining the Common Council of the Kingdom. 291
I. Nature of the Summons. II. Composition of the
Council. III. Position of the “Minor Barons.” IV.
Representation. V. Powers and Functions of the
Council. VI. Rights of Majorities and Minorities,

CHAPTER FIFTEEN.

Restrictions on Mesne Lords taking Aids. I. Points of 301
difference between tenants-in-chief and under-tenants.
II. The influence of Magna Carta upon later practice,

CHAPTER SIXTEEN.

No one to perform greater service for a tenement than is 306
due,

CHAPTER SEVENTEEN.

Common Pleas. I. The Curia Regis as a Court of Law. II. 308
Common Pleas and Royal Pleas. III. Effects of Magna
Carta on the Genesis of the three Courts of Common
Law. IV. Evolution of the Court of Common Pleas. V.
Erroneous Views,

CHAPTER EIGHTEEN.

Petty Assizes. I. The Curia Regis and the Travelling 317
Justices. II. The Nature and Origin of the three Petty
Assizes. III. The Assizes in 1215. IV. An Erroneous
View. V. Later History of the Justices of Assize,

CHAPTER NINETEEN.

Procedure at Petty Assizes, 331

CHAPTER TWENTY.

Amercement. I. Three Stages of Criminal Law: (1) The 334
blood-feud; (2) Fixed money-payments; (3) Amercements.
II. Magna Carta and Amercements: (1) Of the
Freeholder; (2) Of the Merchant; (3) Of the Villein;
(4) Fines and Amercements; (5) Contenement,

CHAPTER TWENTY-ONE.

Amercement of Earls and Barons, 346

CHAPTER TWENTY-TWO.

Amercement of the Clergy, 349

CHAPTER TWENTY-THREE.

I. Origin of the Obligation to make Bridges. II. The 352
King’s Rights of Falconry. III. Erroneous
Interpretations,

CHAPTER TWENTY-FOUR.

I. Pleas of the Crown. II. Keeping and Trying Criminal 358
Pleas. III. The Intention of Magna Carta. IV. An
Erroneous View. V. Local Magistrates under John: (1)
The Sheriff; (2) The Constable; (3) The Coroner; (4)
The Bailiff,

CHAPTER TWENTY-FIVE.

Farms of Counties and Hundreds, 372

CHAPTER TWENTY-SIX.

Crown Debtors. I. Nature of the Grievance. II. The Right 376
to Bequeath,

CHAPTER TWENTY-SEVEN.

Intestate Succession, 382

CHAPTER TWENTY-EIGHT.

I. Purveyance in General. II. Branches of it restricted 385
by Magna Carta. III. Its other Branches,

CHAPTER TWENTY-NINE.

Castle-Guard, 390

CHAPTER THIRTY.

Purveyance of Horses and Carts, 392

CHAPTER THIRTY-ONE.

Purveyance of Timber, 393

CHAPTER THIRTY-TWO.

I. The Crown’s Claim to Felons’ Property: (1) Lands; (2) 394
Chattels. II. Indictment, Conviction, and Attainder,

CHAPTER THIRTY-THREE.

Obstructions to be removed from Rivers, 402

CHAPTER THIRTY-FOUR.

The Writ “_Praecipe_.” I. Royal Writs and the Feudal 405
Jurisdictions. II. Influence of this provision on
later legal Development,

CHAPTER THIRTY-FIVE.

Standards of Weights and Measures, 414

CHAPTER THIRTY-SIX.

Writ _de Odio et Atia_. I. Trial by Combat prior to 417
John’s Reign. II. The Writ of Life and Limbs. III. Its
Subsidiary Uses. IV. Later History of Appeal and
Battle,

CHAPTER THIRTY-SEVEN.

Prerogative Wardship, 427

CHAPTER THIRTY-EIGHT.

No Bailiff to put anyone to his “law” without Witnesses. 430
I. Probable Object of this Chapter. II. Medieval
Interpretations. III. Modern Interpretations,

CHAPTER THIRTY-NINE.

I. Its Main Object: (1) Judgment must precede Execution; 436
(2) _Per judicium parium_; (3) _Per legem terrae_; (4)
Meaning of "_vel_." II. The scope of the Protection
afforded. III. What classes of men enjoyed it. IV.
Reactionary Aspects. V. The Genesis of this Chapter.
VI. Later History of "Judgment of Peers." VII.
Erroneous Interpretations,

CHAPTER FORTY.

Justice not to be Sold, Refused, or Delayed, 459

CHAPTER FORTY-ONE.

Freedom of Trade. I. Magna Carta favours Alien 463
Merchants. II. Customs and Tolls. III. The Motives
prompting this Chapter. IV. English Boroughs and
Merchant Strangers,

CHAPTER FORTY-TWO.

Liberty to leave the Kingdom—Writs _ne exeat regno_, 473

CHAPTER FORTY-THREE.

Tenants of Escheated Baronies, 478

CHAPTER FORTY-FOUR.

I. The Royal Forests. II. Their Origin. III. Forest 482
Officials. IV. Forest Courts. V. Chases, Parks, and
Warrens. VI. Forest Rights and Forest Grievances. VII.
Later History of Forests and Forest Laws,

CHAPTER FORTY-FIVE.

Justices, Castellans, Sheriffs, and Bailiffs to be 502
law-abiding men,

CHAPTER FORTY-SIX.

Wardship over Vacant Abbeys, 505

CHAPTER FORTY-SEVEN.

Forests and River-banks encroached upon by John, 507

CHAPTER FORTY-EIGHT.

Procedure for abolishing Evil Customs of Forests and 511
elsewhere,

CHAPTER FORTY-NINE.

Hostages and Charters to be restored, 514

CHAPTER FIFTY.

List of those excluded from offices of trust in future, 518

CHAPTER FIFTY-ONE.

Expulsion of Foreign Mercenaries, 522

CHAPTER FIFTY-TWO.

Procedure for redressing wrongful Disseisins, 523

CHAPTER FIFTY-THREE.

A Crusader’s Respite allowed to John, 525

CHAPTER FIFTY-FOUR.

Right of Appeal by Women, 527

CHAPTER FIFTY-FIVE.

Remission of Unjust Fines and Amercements, 530

CHAPTER FIFTY-SIX.

Redress for Welshmen wrongfully disseised by John, 533

CHAPTER FIFTY-SEVEN.

Redress for Welshmen wrongfully disseised by Henry II. 534
or Richard I.,

CHAPTER FIFTY-EIGHT.

Welsh Hostages and Charters to be restored, 536

CHAPTER FIFTY-NINE.

Justice to be done to Alexander, King of Scots; 537
Relations of England and Scotland,

CHAPTER SIXTY.

Extension of Provisions of Charter to Tenants of Mesne 543
Lords,

CHAPTER SIXTY-ONE.

The _Forma Securitatis_ or Legal Sanction of the 545
Charter. I. Nature of the Security. II. Minor Details
of the Scheme: (1) Twenty-five Executors; (2) A quorum
may act; (3) Sub-committee of four; (4) Local Agents;
(5) The Co-operation of the Public. III. Criticism of
the Scheme. IV. Dr. Gneist’s Opinion. V. Failure of
the Scheme,

CHAPTER SIXTY-TWO.

Prelates to issue Letters Testimonial, 562

CHAPTER SIXTY-THREE.
Formal Clauses, 563

APPENDIX.
DOCUMENTS RELATIVE TO, OR ILLUSTRATIVE OF, JOHN’S MAGNA
CARTA:

I. The Charter of Liberties of Henry I. (1100), 565

II. The Second or Oxford Charter of Stephen (1136), 567

III. Charter of Henry II. (_circa_ 1154), 568

IV. The so-called “Unknown Charter of Liberties,” 569

V. The Articles of the Barons (1215), 570

VI. Writs Supplementary of John’s Great Charter, 576

VII. The Great Charter of Henry III. (Second Re-issue, 580
6th November, 1217),

VIII. Carta de Foresta, 586

SELECT BIBLIOGRAPHY AND LIST OF AUTHORITIES REFERRED TO, 590

INDEX TO STATUTES, 597

GENERAL INDEX 599

HISTORICAL INTRODUCTION.