chapter 6. The attempts made to remedy some of the most serious abuses

of the practice may be read in Magna Carta.[102]

Footnote 99:

_Rotuli de oblatis et finibus_, p. 354.

Footnote 100:

_Rot. Claus._, pp. 37, 55.

Footnote 101:

Pollock and Maitland, I. 305.

Footnote 102:

See _infra_, under chapters 6, 7, and 8.

Mr. Hallam[103] considers that “the rights, or feudal incidents, of wardship and marriage were nearly peculiar to England and Normandy,” and that the French kings[104] never “turned this attribute of sovereignty into a means of revenue.”

Footnote 103:

_Middle Ages_, II. 429.

Footnote 104:

p. 437.

(_e_) _Primer Seisin_, which is usually regarded as a separate incident, and figures as such in Blackstone’s list, is perhaps better understood, not as an incident at all, but rather as a special procedure—effective and summary—whereby the Crown could enforce the four incidents already described. It was an exclusive prerogative of the Crown, denied to mesne lords.[105] When a Crown tenant died, the King’s officers had the right to enter upon immediate possession, and to exclude the heir, who could not touch his father’s lands without specific permission from the Crown. He had first to prove his title by inquest, to give security for any balance of relief and other debts unpaid, and to perform homage.[106] It will be readily seen what a strong strategic position all this assured to the King in any disputes with the heir of a dead vassal. If the Exchequer had doubtful claims against the deceased, its officials could satisfy themselves before admitting the heir to possession. If the heir showed any tendency to evade payment of feudal incidents, the Crown could checkmate his moves. If the succession was disputed, the King might favour the claimant who pleased or paid him most; or, under colour of the dispute, refuse to disgorge the estate altogether—holding it in custody analogous to wardship, and meanwhile drawing the profits. If the son and heir happened to be from home when his father died, he would probably experience great difficulty, when he returned, in forcing the Crown to restore the estates. Such was the experience of William Fitz-Odo on returning from Scotland in 1201 to claim his father’s carucate of land in Bamborough.[107] Primer seisin was thus not so much a separate incident, as a right peculiar to the Crown to take summary measures for the satisfaction of all incidents or other claims against a deceased tenant or his heir. Magna Carta admitted this prerogative whilst guarding against its abuse.[108]

Footnote 105:

The Bishop of Durham enjoyed it, so it seems to be stated in a charter extorted from him in 1303 by the men of his fief (see Lapsley, _Pal. of Durham_, p. 133). But this forms no real exception; since the Bishop, as an Earl Palatine, enjoyed exceptionally the _regalia_ of a king.

Footnote 106:

See Pollock and Maitland, I. 292. It appears from statute of Marlborough, c. 16, that _primer seisin_ extended over lands held by serjeanty as well as by knight’s service.

Footnote 107:

_Rotuli de oblatis_, p. 114.

Footnote 108:

Sir Edward Coke (_Coke upon Littleton_, 77 A) is the original source of much confusion as to the nature of primer seisin, which he seems to have considered as a second and additional relief exacted by the Crown amounting to the whole rent of the first year. The Popes, he further held (equally erroneously), were only imitating this practice when they exacted one year’s rent from every newly granted benefice under the name of “first fruits.” These errors have been widely followed (_e.g._ Thomson, _Magna Charta_, p. 416, Taswell Langmead, _Const. Hist._, p. 50).

(_f_) _Fines for alienation_ occupy a place by themselves. Unlike other incidents already discussed, they became exigible not on the tenant’s death, but on his wishing to part with his estate to another during his own lifetime, either as a gift or in return for a price. How far could he effect this without consent of his lord? This was, for many centuries, a subject of frequent and heated disputes, often settled by compromises, in which the tenant paid a fine to the lord for permission to sell. Such fines are payable at the present day in Scotland (under the name of “compositions”) from feus granted prior to 1874; and, where no sum has been mentioned in the Feu Charter, the law of Scotland defines the amount exigible as one year’s rent. John’s Magna Carta contains no provisions on this subject. Disputes, long and bitter, took place later in the thirteenth century; but their history is irrelevant to the present inquiry.[109]

Footnote 109:

See Taswell Langmead, _Const. Hist._, pp. 51-2; also Pollock and Maitland, II. 326. _Cf._, however, c. 39 of the re-issue of Magna Carta in 1217.

II. _Feudal Aids._ The feudal tenant, in addition to fulfilling all the essentials of the feudal relation and also all the burdensome incidents already enumerated, was expected to come to the aid of his lord in any special crisis or emergency. The help thus rendered was by no means reckoned as a payment to account of the other obligations, which had also to be paid in full. The additional sums thus given were technically known as “aids.” At first, the occasions on which these might be demanded were varied and undefined. Gradually, however, they were limited to three. Glanvill,[110] indeed, mentions only two, namely, the knighting of the overlord’s eldest son, and the marriage of his eldest daughter; but he intends these, perhaps, merely as illustrations rather than as forming an exhaustive list. Before the beginning of the thirteenth century the recognized aids were clearly three—the ransoming of the king and the two already mentioned. This understanding was embodied in Magna Carta.[111]

Footnote 110:

IX. c. 8.

Footnote 111:

See _infra_, under chapter 12.

A tradition has been handed down from an early date, that these aids were in reality voluntary offerings made by the tenant as a mark of affection, and forming no part of his legal obligations.[112]

Footnote 112:

Thus, the Abingdon version of the _Anglo-Saxon Chronicle_ (II. 113) speaks of “auxilium quod barones michi dederunt”; while Bracton says (Book II. c. 16, s. 8): “Auxilia fiunt de gratia et non de jure; cum dependeant ex gratia tenentium, et non ad voluntatem dominorum.”

This plainly became, however, a legal fiction, as regarded the aids acknowledged by customary law; the tenant dared not refuse to pay the recognized three. As regarded any further payments, it was by no means a fiction. When the Crown desired to exact contributions for any other reason, it required to obtain the consent of the _commune concilium_. This, for example, was done by Henry III. before taking an aid on the marriage of his eldest sister. The importance of the necessity for such consent can hardly be exaggerated in its bearing on the origin of the rights of Parliament.

The Great Charter, while confirming the tacit compromise arrived at by custom, whereby only the three aids might be taken without consent of the baronage, left the _amount_ of such aids undefined, contenting itself with the extremely vague provision that they should be “reasonable.” Examples of such payments, both before and after the Charter, are readily found in the Exchequer Rolls. Thus, in the fourteenth year of Henry II., that king took one mark per knight’s fee on marrying his daughter Maud to the Duke of Saxony. Henry III. took 20s. and Edward I. 40s. for a similar purpose. For Richard’s ransom, 20s. had been exacted from each knight’s fee (save those owned by men actually serving in the field); and Henry III. took 40s. in his thirty-eighth year at the knighting of his son. Probably there existed, at an early date, some understanding as to the limits within which “reasonableness” should be reckoned, but the amount was never stated in black and white before the third year of Edward I. The Statute of Westminster I.[113] fixed the “reasonable” aid payable, not to the Crown but, to mesne lords at 20s. per knight’s fee, and 20s. for every estate in socage of £20 annual value. This rate, it will be observed, is one-fifth of the knight’s relief.[114] The Crown, in thus enforcing “reason” on mesne lords, seems never to have intended that the same limit should hamper its own dealings with Crown tenants, but continued to exact larger sums whenever it thought fit.[115]

Footnote 113:

3 Edward I. c. 36.

Footnote 114:

Fixed at 100s. by c. 2 of Magna Carta.

Footnote 115:

One entry in the _Memoranda Roll_ of 42 Henry III. (cited Madox I. 615) seems at first sight to contradict this. It seems in that year to be admitted that the Crown could not exact more than 20s. of aid per knight’s fee; but in 1258 the baronial opposition would be strong in the Exchequer as elsewhere.

Thus £2 per fee was taken in 1346 at the knighting of the Black Prince. A Statute of Edward III.[116] at last extended to the Crown the same measure of “reasonableness” as had been applied three-quarters of a century earlier to mesne lords. The last instances of the exaction of aids in England occur as late as the reign of James I., who, in 1609, demanded one for the knighting of the ill-fated Prince Henry, and in 1613 another for the marriage of his daughter Elizabeth to the Prince of Orange.

Footnote 116:

25 Ed. III. stat. 5, c. 11.

III. _Suit and Service._ This phrase expresses the essential obligations inherent in the very nature of the feudal relation. It may be expanded (as regards tenure in chivalry) into the duty of attendance at the lord’s court, whether it met for administrative or judicial purposes, or for reasons of mere display, and the further duty of military service under that lord’s banner in the field. Suit, or attendance at court, had ceased to be an urgent question before the reign of John. Indeed, the barons, far from objecting to be present there, were gradually approaching the modern conception, which regards it as a privilege rather than a burden to attend the _commune concilium_—the embryo Parliament—of the King. They urged, in especial, that only in a full feudal court, at which each great Crown tenant had a right to appear, could any one of their number be judged in a plea involving loss of lands or of personal status.[117]

Footnote 117:

See _infra_, under chapter 39.

It was far otherwise with the duties of military service, which were rendered every year more unwillingly, partly because of the increased frequency of warlike expeditions, partly because of the greater cost of campaigning in distant lands like Poitou, partly because the English barons were completely out of sympathy with John’s foreign policy and with him. We have seen that the want of definition and looseness of practice in the reign of William the Conqueror left to future ages a legacy fertile in disputes. William I. and his barons lived in the present; and the present did not urgently call for definition. Therefore, the exact duration of the military service to be rendered, and the exact conditions (if any) on which exemption could be claimed, were left originally quite vague. Such carelessness is easily explained. Both Crown and barons hoped that by leaving matters undefined, they would be able to alter them to their own advantage. This policy was sure to lead to bitter quarrels in the future, but circumstances delayed their outbreak. The magnates at first readily followed William to the field wherever he went, since their interests were identical with his, while warfare was their normal occupation.

The exact amount of military service was gradually fixed by custom, and both sides acquiesced in reckoning the return due (_servitium debitum_) for each knight’s fee or _scutum_ as the service of one fully armed horseman during forty days. There were still, however, innumerable minor points on which disputes might arise, and these remained even in 1215. Indeed, although several chapters of the Great Charter attempted to settle certain of these disputed points, others were left as bones of contention to subsequent reigns: for example, the exact equipment of a knight; the liability to serve for more than forty days on receiving pay for the extra time; what extent of exemption (if any) might be claimed by churchmen holding baronies on the ground that they could not fight in person; how far a tenant might compromise for actual service by tendering money; whether attendance and money might not both be refused, if the King did not lead his forces in person; and whether service was equally due from all estates for foreign wars as for home ones.[118]

Footnote 118:

Some of these questions might be answered in particular cases by the terms of special charters. Thus the _Hundred Rolls_ (1279) relate how Hugh de Plesens held the Manor of Hedington, and was liable for one knight’s fee when scutage ran; that he must go with the King and serve him for forty days at his own expense, and thereafter at the expense of the King. _Rot. Hund._, II. p. 710; cf. for _France, Etablissements de St. Louis_, I. c. 65.

Such difficulties were increased, as time went on, rather than removed. The Conqueror’s followers had possessed, like their lord, estates on both sides of the Channel: his wars were theirs. Before John’s reign, these simple relations had become complicated by two considerations. By forfeitures and the division of inheritances between sons of one father, holders of English fiefs and holders of Norman fiefs had become distinct; the English barons had in 1213 nothing at stake in the Crown’s selfish schemes of aggrandisement or defence. The England of John Lackland, like the England of William of Orange, objected to be entangled in foreign wars in the interests of foreign possessions of the King. On the other hand, the gradual expansion of the dominions of the wearers of the English Crown increased the number of their wars with the number of their interests, and increased, too, the trouble and expense of each expedition. The small wars with Wales and Scotland formed a sufficient drain on the resources of English magnates without their being summoned in intermediate years to fight in Maine or Gascony. The greater number of campaigns might well be reckoned a breach of the spirit of the original agreement.

Were the barons bound to follow John in a forlorn attempt, of which they disapproved, to recover his lost fiefs from the French Crown? Or were they bound to support him only in his legitimate schemes as King of England? Or were they, by way of compromise, liable for services in the identical possessions held by William the Conqueror at the date when their ancestors first got their fiefs—that is, for wars in England and Normandy alone? Tenderness for legal subtleties or strict logic could hardly be expected from the malcontents of the northern counties, smarting under a dumb sense of wrong. Despising all nice definition, they declared roundly in 1213 that they owed no service whatsoever out of England.[119] This extreme claim put them clearly in the wrong, since John had many precedents to the contrary ready to lay before them. When the King, on his return from his unfortunate expedition in 1214, demanded a scutage from all who had not followed him to Poitou, the malcontents declared that they had no obligation either to follow him out of the kingdom, or to pay a scutage in lieu thereof.[120] Pope Innocent was probably correct in condemning this contention as founded neither on English law nor on feudal custom.[121] There is some ground for believing that a compromise was mooted on the basis that the barons should agree to serve in Normandy and Brittany, as well as in England, on being exempted from fighting elsewhere abroad.[122]

Footnote 119:

See R. Coggeshall, p. 167; the barons argued _non in hoc ei obnoxios esse secundum munia terrarum suarum_.

Footnote 120:

W. Coventry, II. 217.

Footnote 121:

See his letter dated 1st April, 1215, in _New Rymer_, I. 128, ordering the barons to pay the scutage of Poitou.

Footnote 122:

The evidence for this is chiefly inferential, but would be greatly strengthened if we could establish the genuineness of the charter discussed by Mr. J. H. Round, Mr. Prothero, and Mr. Hubert Hall in _Eng. Hist. Rev._, VIII. 288, and IX. 117 and 326. See the document in Appendix.

A definite understanding on this vital question was never arrived at—not even on paper, since chapter 16 of Magna Carta contented itself with the bald provision that existing services were not to be increased (without defining what these were). This was merely to shelve the difficulty: the dispute went on under varying forms and led to a violent clashing of wills in the unseemly wrangle between Edward I. and his Constable and Marshal, dramatized in a classic passage by Walter of Hemingburgh.[123] Strangely enough, the _Confirmatio Cartarum_ of 1297, which was, in part, the outcome of this later quarrel, omits (like Magna Carta itself)[124] all reference to foreign service. The total omission from both charters of all mention of the chief cause of dispute is noteworthy. It must be remembered, however, that the question of liability to serve abroad had practically resolved itself into that of liability to scutage, and that chapters 12 and 14 of the Charter of 1215 provided an adequate check on the levy of all scutages; but this is a subject of crucial importance, which requires separate and detailed treatment.

Footnote 123:

_Chronicon_, II. 121.

Footnote 124:

See, however, _infra_ under c. 16.

IV. _Scutage._ The Crown did not always insist on actual personal service, but was frequently willing to accept a commutation in the form of a money payment. This subject of scutage is one of the most vexed of questions; all received opinions of yesterday having to-day been thrown into the melting pot. Serious attempts constructively to restate the whole subject have hardly been made; and no conclusions have yet received general acceptance.

Three modifications, however, of the theories of Stubbs and Freeman, once universally accepted, seem likely to be soon established: (1) that “scutage” is an ambiguous term with a vague general meaning as well as a narrow technical meaning; (2) that the importance of the changes introduced by Henry II. in 1156 and 1159 has been much exaggerated; and (3) that at a later time, probably during John’s reign, scutage changed its character. It ceased to be normally a commutation of service, since it was not infrequently exacted by the Crown in _addition_ to military service actually performed. Each of these propositions requires explanation.

“Scutagium,” or “shield-money,” often means, it is true, a specific sum of so much per knight’s fee (normally twenty shillings) accepted by the King in lieu of the personal service in his army due by his tenants _in capite_. Thus it is, as Dr. Stubbs explains, “an honourable commutation for personal service”;[125] but it is also loosely used[126] to denote any exaction whatsoever assessed on a feudal basis (that is, taken exclusively from holders of fiefs) irrespective of the occasion of its levy. Thus, money taken in name of one of the three feudal _aids_ is sometimes described as a scutage; and other instances might be cited.

Footnote 125:

Stubbs, _Const. Hist._, I. 632.

Footnote 126:

As was long ago pointed out by Madox, I. 619.

Again, learned opinion tends towards the belief that Henry II. made no radical or startling alteration. Professor Freeman, Dr. Stubbs, and their adherents familiarized a bygone generation of historians with the view that one of Henry’s most important reforms was to allow his Crown tenants at their discretion to substitute payments in money for the old obligation of personal service in the field—this option being granted to ecclesiastics in 1156, and to lay barons in 1159. Such a theory had _a priori_ much to recommend it. A measure of this nature, while giving volume and elasticity to the resources of the Crown, was calculated subtly to undermine the basis of the feudal tie; but Henry, farseeing statesman as he was, could not discard the ideals of his own generation. No evidence that he made any sweeping change is forthcoming. His grandfather, Henry I., is shown by the evidence of extant charters to have accepted money in place of the services of knights _when it suited him_ (notably from church fiefs in 1109),[127] and there is no evidence (direct or indirect) to show that the grandson accepted such commutation _when it did not suit him_. The conclusions formulated, with his usual energy, by Mr. J. Horace Round, lie implicitly in the examples from the _Pipe Rolls_ stored in the great work of Madox. From these it would appear that the procedure of the Exchequer of the great Angevin and his two sons might be explained in some such propositions as these:

Footnote 127:

See Round, _Feudal England_, p. 268.

(_a_) The option to convert service into scutage lay with the Crown, and not with the tenants, either individually or as a body. When the King summoned his feudal army no baron could (as Professor Freeman would have us believe) simply stay away under obligation of paying a small fixed sum to the Exchequer. On the contrary, Henry and his sons jealously preserved the right to insist on _personal_ service whenever it suited them; even efficient substitutes were not always accepted, much less money payments.

(_b_) If the individual wished to stay at home he required to make a special bargain to pay such fine as the King agreed to accept—and sometimes he had to send a substitute in addition. The _Pipe Rolls_ show many such payments by stay-at-homes _ne transfretent_ or _pro remanendo ab exercitu_. Thus, in the twelfth year of John’s reign a Crown tenant paid a fine “that he might send two knights to serve for him in the army of Ireland.”[128]

Footnote 128:

Madox, I. 658.

Sometimes, indeed, Henry II. might announce that payments at a certain rate would be accepted generally in lieu of service, but this was when it suited him, not when it suited his military tenants. In this connection twenty shillings per fee became recognized as a usual, though by no means a necessary, rate.

(_c_) In the ordinary case, if the tenant in chivalry neither went in person nor obtained leave from the Crown to stay away, he was in evil plight. Defaulters were “_in mercy_”; they sometimes forfeited their entire estates to the Crown,[129] and might be glad to accept such terms of pardon as a gracious King condescended to hold out to them. Sometimes, it is true, quite small amercements were inflicted; the Abbot of Pershore in 1196 escaped with an amercement of 40s.[130] Such leniency, however, was exceptional, and the result of special royal clemency.

Footnote 129:

See _Pipe Roll_ of 12 John, cited in Madox, I. 663.

Footnote 130:

See _Pipe Roll_ of Richard I., cited _ibid._

The right to determine the amount of amercements to be taken lay within the province of the Barons of the Exchequer, who also judged whether or not lands had escheated by default.

Henry II. seems to have levied money in name of scutage only when actually at war—on seven occasions in all during a reign of thirty-five years; and only once at a rate exceeding 20s., if we may trust Mr. Round,[131] and that when he was putting forth a special effort against Toulouse. Richard I., with all his rapaciousness, levied, apparently, only four scutages during ten years, and the rate of 20s. was never exceeded even in the King’s hour of urgent need,—in 1194, when the arrears of his ransom had to be paid and preparations simultaneously made for war in Normandy.

Footnote 131:

_Feudal England_, 277 _seq._

At John’s accession, then, three rules might be regarded as having all the prescriptive force of a long unbroken tradition, namely, (1) that scutage was a reserve for extraordinary emergencies, not a normal yearly burden; (2) that the recognized maximum was 20s. per knight’s fee, while a lower rate (13s.4d. and even 10s.) had occasionally been accepted; and (3) that the payment of scutage to the King at a rate previously fixed by him acted as a complete discharge of all obligations due for that occasion.

If it can be proved that John, almost from his accession, deliberately altered all three of these well-established rules, and that too in the teeth of the keen opposition of a high-spirited baronage whose members felt that their pride and prestige as well as their money-bags were attacked, a distinct step is taken towards understanding the crisis of 1215. Such knowledge would explain why a storm, long brewing, burst in John’s reign, neither sooner nor later; and even why some of the disreputable stories told by the chroniclers and accepted by Blackstone and others, found inventors and willing believers.

It is here maintained that John did make changes in all three directions; and, further, that the incidence of this increase in feudal burdens was rendered even more unendurable by two considerations:—because at his accession there remained unpaid (particularly from the fiefs of the northern knights) large arrears of the scutages imposed in his brother’s reign,[132] and because in June, 1212, John drew the feudal chain tight by a drastic and galling measure. In that month he instituted a strict inquest into the amount of feudal service exigible from every estate in England, to prevent any dues escaping his wide net, and to revive all services and payments that had lapsed or were in danger of lapsing.

Footnote 132:

Miss Norgate, _John Lackland_, p. 122.

That he made the first two changes becomes a certainty from a glance at the table of scutages actually extorted during his reign, as these are here copied from a list compiled by a writer of authority who has no special theory to support,[133] viz.:

First scutage of reign— 1198-9— 2 marks per knight’s fee. Second " " 1200-1 2 " " Third " " 1201-2 2 " " Fourth " " 1202-3 2 " " Fifth " " 1203-4 2 " " Sixth " " 1204-5 2 " " Seventh " " 1205-6 20s. " Eighth " " 1209-10 2 marks " Ninth " " 1210-11 2 " " Tenth " " 1210-11 20s. " Eleventh " " 1213-14 3 marks "

Footnote 133:

Miss Norgate, _John Lackland_, p. 123 note, correcting Swereford’s lists in the _Red Book of Exchequer_.

It will be seen that, in the very first year of his reign, John took a scutage, and that, too, at a rate above the established normal, at two marks per _scutum_ (only once equalled, thirty years before, and then under special circumstances). Even one such exaction must have made the already sulky Crown tenants look askance.

Next year John wisely allowed them breathing space; then without a break in each of the third, fourth, fifth, sixth and seventh years of his reign, scutages were extorted in quick succession at the high rate of two marks. If John meant to establish this as a new normal rate, he did so not without some show of reason, since that would exactly pay the wages of a knight at 8d. _per diem_ (the rate then current), for a period of forty days (the exact term recognized by public opinion as the maximum of compulsory feudal service).

_Fines_, in addition to this scutage of two marks, were apparently exacted from those who had not made the necessary compromise for personal service in due time.[134]

Footnote 134:

See (for year 1201) Ramsay, _Angevin Empire_, p. 390, and authorities there cited.

These scutages were collected with increasing difficulty, and arrears gradually accumulated; but the spirit of opposition increased even more rapidly. In 1206, apparently, the breaking point was almost reached.[135] Accordingly, in that year, some slight relaxation was allowed—the annual scutage was reduced from two marks to 20s. John’s needs, however, were as great as ever, and would prevent all further concessions in future years, unless something untoward happened. Something untoward _did_ happen in the summer of 1207, when John quarrelled with the Pope. This event came in time, not as John thought to _prevent_, but, as the sequel proved, merely to _postpone_, the crisis of the quarrel with the baronage. John had, for the time being, the whole of the confiscated property of the clergy in his clutches. The day of reckoning for this luxury was still far distant, and the King could meanwhile enjoy a full exchequer without goading his Crown tenants to rebellion. For three years no scutage was imposed. In 1209, however, financial needs again closed in on John, and a new scutage of two marks was levied; followed in the next year actually by two scutages, the first of two marks against Wales, and the second of 20s. against Scotland. John never knew when to stop. These three levies, amounting to a total of five-and-a-half marks per fee within two years, strained the tension almost to breaking point.

Footnote 135:

Cf. Miss Norgate, _John Lackland_, p. 125.

During the two financial years immediately following (Michaelmas, 1211, to Michaelmas, 1213) no scutage was imposed. John, however, although he thus a second time relaxed the tension, had no intention to do so for long. On the contrary, he determined to ascertain if scutages could not be made to yield more in the future. By writs, dated 1st June, 1212, he instituted a great Inquest throughout the land. Commissioners were appointed to take sworn verdicts of local juries as to the amount of liability due by each Crown vassal. Mr. Round[136] considers that previous writers have unaccountably ignored the importance of this measure, “an Inquest worthy to be named in future by historians in conjunction with those of 1086 and 1166,”[137] and describes it as an effort “to revive rights of the Crown alleged to have lapsed.” It is possible that John, by this Inquest of 1212, sought also (unsuccessfully, as the sequel proved) to do what Henry had done successfully in 1166—that is, to increase the amount of knights’ fees on which each Crown tenant’s scutage was assessed by adding to the previous total the number of knights recently enfeoffed.

Footnote 136:

_Commune of London_, pp. 273-4.

Footnote 137:

Two historians, however, who have recently given valuable and independent accounts of the reign of John, say little of its value. Sir James Ramsay (_Angevin Empire_, p. 432) treats it briefly, and Miss Norgate (_John Lackland_, p. 163) barely notices it.

John clearly intended by this Inquest, the returns to which were due on the 25th June, 1212, to prepare the necessary machinery for wringing the uttermost penny out of the next scutage when occasion for one again arose. That occasion came in 1214.

Up to this date, even John had not dared to exact a rate of more than two marks per knight’s fee; but the weight of his constant scutages had been increased by the fact that he sometimes exacted personal services in addition, and that he inflicted crushing fines upon those who neither went nor arranged beforehand terms of composition with the King.[138]

Footnote 138:

Miss Norgate (_John Lackland_, p. 123) describes the exactions supplementing the scutages: "These scutages were independent of the fines paid by the barons who did not accompany the King on his first return to Normandy in 1199, of the money taken from the host as a substitute for its service in 1201, of the equipment and payment of the ‘decimated’ knights in 1205, and the fines claimed from all the tenants-in-chivalry after the dismissal of the host in the same year, as well as of actual services which many of those who had paid the scutage rendered in the campaigns of 1202-4 and 1206."

Thus gradually and insidiously throughout the entire reign of John, the stream of feudal obligations by many different channels steadily rose until the barons feared that nothing of their property would be saved from the torrent. The normal rate of scutage had been raised, the frequency of its imposition had been increased, the conditions of foreign service had become more burdensome, and the objects of foreign expeditions more unpopular; while attempts were sometimes made to exact both service and scutage in the same year. The limit of the barons’ endurance was reached when, on 26th May, 1214, John, already discredited by his unsuccessful expeditions in Poitou, soon to be followed by the utter overthrow of his allies at Bouvines, issued writs for a scutage at the unheard-of rate of three marks, grounded doubtless on the inquest of 1212 and unusually far-reaching in the subjects which it embraced.[139]

Footnote 139:

See Miss Norgate, _John Lackland_, 210, and cf. _supra_, p. 37.

Then the final crash came; this writ was like a call to arms—a call not to follow the King’s banner, but to fight against him.

III. Royal Justice and Feudal Justice.

A well-known aphorism of legal text-books, couched in language unusually figurative, declares the King to be “the sole fountain of justice.” Correct as it is to apply this metaphor to the present state of the constitution, it would be an anachronism and a blunder to transport it into the thirteenth century. In John’s reign there still were—as there had been for centuries—not one, but many competing jurisdictions. It was by no means a foregone conclusion that the King’s Courts were the proper tribunals to which a wronged individual must repair to seek redress. On the contrary, the great bulk of the rural population, the villeins, had no _locus standi_ except in the court of the manor to which they belonged; while the doors of the royal Courts had been closed against the ordinary freeman previous to the reign of Henry II. Royal justice was still the exception, not the rule. Each man must seek redress, in the ordinary case, in his own locality. To dispense justice to the nation at large was no part of the normal business of a medieval King.

I. _Rival Systems of Law Courts._ In the thirteenth century, there existed not one source of justice, but many. Rival courts, eagerly competing to extend their own sphere of usefulness and to increase their own fees, existed in a bewildering multitude. Putting aside for the moment the Courts Christian, the Borough Courts, the Forest Courts, and all exceptional or peculiar tribunals, there existed three great rival systems of jurisdiction which may be named in the order in which they became in turn prominent in England.

(1) _Local or District Courts._ Justice was originally a local product, and administered in rude tribunals, which partook more or less of a popular character. Each shire had its council or assembly for hearing pleas, known as a “shire-moot” in Anglo-Saxon days, and usually as a “_comitatus_” after the Norman Conquest; while each of the smaller districts subdividing the shire, and forming units of administration for purposes of taxation, defence, justice, and police, had a moot or council of its own, serving as a court of law, to which the inhabitants of the various villages brought their pleas in the first instance. These smaller districts were known as hundreds in the south, and as wapentakes (a name of Danish derivation) in the north.

The theory generally received is that all freemen were originally suitors in the courts of the shire and the hundred, and that the whole body of those present, the ordinary peasant (“ceorl”) equally with the man of noble blood (“eorl”), took an active part in the proceedings, pronouncing (or, at least, concurring in) the judgments or dooms there declared; but that, as time progressed, the majority of the Anglo-Saxon ceorls sank to the half-servile position of villeins—men tied for life to the soil of the manor, and passing, like property, from father to son. These villeins, although still subjected to the burden of attendance, and to some of the other duties of their former free estate, were deprived of all those rights which had once formed the counterpart of the obligations. Another school of historians, it is true, denies that the mass of the population, even in very early times, ever enjoyed the right to any active share in the dispensation of justice. It is unnecessary here to attempt a solution of these and many other intricate problems surrounding the composition and functions of the courts of shire and hundred; or to discuss the still more vexed question how far the small assembly of the villagers of each township is worthy to be reckoned a formal court of law. It is sufficient to emphasize the importance of the existence from early times of a complete network of courts, each dispensing justice for the people of its own district.

(2) _Feudal Courts._ Centuries before the Norman Conquest, this system of popular or district justice found itself confronted with a rival scheme of jurisdictions—the innumerable private courts belonging to the feudal lords of the various estates into which the whole of England had been divided. This new system of private tribunals (known indifferently as feudal courts, manorial courts, seignorial courts, or heritable jurisdictions) slowly but surely, such is the orthodox view generally, although not universally accepted, gained on the older system of popular courts of shire, hundred, and wapentake.[140]

Footnote 140:

This account of the relations of the two sets of courts would receive the support of recent writers, such as Maitland and Round, as well as of the older generation, such as Stubbs and Freeman. Mr. Frederic Seebohm may be mentioned as perhaps the most weighty upholder of the opposite view, which regards the manorial courts as of equally early or earlier origin than those of hundred and shire.

Practically every holder of land in England came to be also the holder of a court for the inhabitants of that land. The double meaning of the word “_dominus_” illustrates the double position of the man who was thus both owner and lord.[141] In the struggle between two schemes of justice, the tribunals of the feudal magnates easily triumphed, but never absolutely abolished their rivals. The earlier popular courts still lived on; but the system of district justice which had once embraced the whole of England was completely honeycombed by the growth of the feudal courts. As each once-free village passed under the domination of a lord, and gradually became a manor or embryo-manor, the village-moot (with such rudimentary authority as it may originally have possessed) gave way before a new manorial court endowed with much wider powers and with more effective sanction for enforcing them. Further, as complete hundreds fell under the control of specially powerful magnates, the entire courts of these hundreds were replaced by or transformed into feudal courts; franchises thus took the place of many of the old popular moots. Still, the older system retained possession of part of the disputed ground, thanks to the protection given it in its hour of need by the Crown. A great majority of the hundreds never bowed to the exclusive domination of any one lord, and the courts of the shires were jealously guarded by the Norman Kings against the encroachment of even the most powerful of barons. It is true that they only escaped subjection to a local landowner in order to fall under the more powerful domination of the Crown. Yet the mere fact that they continued in existence acted at least as a check on the growth of the rival system of seignorial tribunals.

Footnote 141:

Cf. “landlord.”

Although it was the policy of the Norman Kings to prevent their barons from gaining excessive powers of jurisdiction, it was by no means their policy to oppose these jurisdictions altogether. On the contrary, the Conqueror and his sons were glad that order should be enforced and justice administered, even in a rough-and-ready manner, in those districts of England whither the Crown’s arm was not long enough to reach, and where the popular courts were likely to prove inefficient. Thus, the old system and the new existed side by side; it was to the interest of the central government to play off the one against the other.

In later days (but not till long after Magna Carta) each manorial tribunal split into three distinct courts, according to the class of pleas it was called upon to try. Later writers distinguish absolutely from each other, the Court Baron, settling civil disputes between the freeholders of the manor; the Court Customary, deciding non-criminal cases among the villeins; and the Court Leet, a petty criminal court enforcing order and punishing small offences. The powers of these courts might vary, and in many districts the jurisdiction over misdemeanours belonged not to the steward of the lord of the manor, but to the sheriff in his half-yearly Circuits or “Tourns” through the county. In the imperfectly feudalized districts the Tourn of the sheriff, as the representative of the Crown, performed the same functions as the Court Leet performed within the territories of a franchise.

(3) _Royal Courts._ Originally, the King’s Court had been merely one feudal court among other feudal courts—differing in degree rather than in kind from those of the great earls or barons. The King, as a feudal lord, dispensed justice among his feudal tenants (whether barons and freemen or only servile dependents), just as any baron or freeman dispensed justice among _his_ tenants, bond or free. No one dreamed, in the time of the Norman Kings, that the _Curia Regis_ would or could undertake the enormous labour of dispensing justice for the whole nation (or even of supervising the courts which did dispense it). Each individual must, on the contrary, look for the redress of wrongs either to the court of the people of his own district, or to the court of his lord. Royal justice for all (in the modern sense) was simply impossible. The monarchy had no machinery at command for effecting this. The task was a gigantic one, which no Anglo-Saxon King, which not even William I., could possibly have undertaken. No attempt in this direction was made by the Crown until the reign of Henry II., who was placed in a position of unprecedented power, partly by circumstances, but chiefly by his great abilities. Even he, born reformer as he was, would never have increased so greatly the labours of government, if he had not clearly seen how enormously the change would enhance both the security of his throne and the revenue of his exchequer.

In normal circumstances, then, prior to the Angevin period, the King’s Court was merely a tribunal for transacting the king’s own business, or for holding pleas between the Crown’s own immediate tenants. Even from an early date, however, the business of the monarch, from the mere fact that he was lord paramount, was necessarily wider than the business of any mesne lord. In a dim way, too, it must have been apparent from the first, that offences against the established order were offences also against the king, and that, therefore, to redress these was the king’s business competent in the King’s Courts. Further, the Sovereign’s prerogative quickly waxed strong, and enabled him to give effect to his wishes in this as in other matters. The Crown asserted a right (while admitting no corresponding duty) to investigate any pleas of special importance, whether civil or criminal. Still, up to the Norman Conquest, and thereafter under William and his sons, royal justice had made no deliberate attempt to become national justice, or to supersede feudal justice. Each kept to its recognized province. The struggle between the two began only with the reforms of Henry II.[142]

Footnote 142:

The various stages in the gradual process, extending from the reign of Henry I. to that of Edward I., by which royal justice insidiously encroached on feudal justice, may be studied in Professor Maitland’s admirably lucid account prefaced to _Sel. Pleas in Manorial Courts_, pp. liii. seq. See also Pollock and Maitland, I. 181-2.

Thus the three great systems of jurisdiction, popular justice, feudal justice, and royal justice (each depending on a different principle) succeeded each other, on the whole, in the order in which they are here named. Yet the sequence is in some ways logical rather than chronological. No absolute line can be drawn, showing where the supremacy of one principle ended and that of the next began. For centuries, all three co-existed, and struggled for the mastery. The germs of manorial jurisdiction may have been present from an early date. Shire-courts and hundred courts alike were continually in danger of falling under the domination of powerful local magnates. Yet the shire-courts were successful in maintaining till the last (thanks to royal favour) their independence of the manorial jurisdictions and their lords; while only a proportion of the hundred courts fell into bondage.

The royal courts, again, exercised an important jurisdiction from the very foundation of the monarchy; and the king in person, or by deputy, from an early date, withdrew special causes from the County Courts, and also interfered with manorial franchises. Finally, the Courts Baron were never abolished, but only silently undermined by the policy of Henry II. and his successors, until they gradually sank into decrepitude without really ceasing to exist.

With these caveats, however, the three systems may be regarded, in some measure, as following one another in the order named:—popular justice, feudal justice, royal justice.

II. _Legal Procedure._ The procedure adopted in litigation in Anglo-Saxon and Norman times was similar in essentials in all three classes of tribunals, and differed materially from the practice of courts of law at the present day. Some knowledge of the more glaring contrasts between ancient and modern procedure may here be profitably discussed, not only on account of the interest inherent in the subject, but also because it will conduce to an understanding of several otherwise obscure provisions of Magna Carta.

Avoiding technical language, and eliminating special procedure peculiar to any one court or country, the principal stages in a normal litigation in a modern court of law may be given briefly as follows:

(1) On the complaint of the party aggrieved—the plaintiff—a summons, or writ, is issued by an officer of the court. Proceedings are opened by the command addressed to the defendant to appear in court and answer what is alleged against him.

(2) Each party lodges written statements of his facts and pleas—that is, of the circumstances of the case as they appear to him (or such of them as he hopes to bring evidence to prove)—on which he founds his claim or his defence, and of the legal principles he intends to deduce from these circumstances. When these statements of facts and pleas have been revised and adjusted, the complete data are now before the court; each party has finally stated what he considers essential to his case.

(3) Proof is, in due course, led; that is, each party is afforded an opportunity of proving such facts as he has alleged (and as require proof through the denial of his opponent). This he may do by documents, witnesses, or otherwise. Each party has the further privilege of shaking his opponent’s evidence by cross-examination.

(4) The next important stage is the debate, the main object of which is to establish by legal arguments the pleas founded on; to deduce the legal consequences inherent in the facts which have been proved.

(5) Finally, the judge gives his decision. He has to determine, after weighing the evidence led by either party, what facts have really been established, and how far the various pleas of plaintiff and defendant respectively are implied in these facts. A considerable amount of thought and reasoning of such a kind as can be successfully performed only by a highly trained legal mind is thus necessary before the final decree or sentence can be pronounced by a judge in a modern court of law.

A trial in Anglo-Saxon and early Norman times stands in notable contrast to all this in almost every essential of its stages and procedure, and even more radically in the spirit which pervades the whole. Thus, the proceedings, from first to last, were purely oral, there being no original writ or summons, no written pleadings, and no record kept of the decision except in the memories of those present. The functions of “the judges” were entirely different, and demanded no previous professional or legal training, since they were not required either to weigh a mass of evidence or to determine the bearing of subtle legal arguments, but merely to see fairplay, and to decide, according to simple rules, well established by centuries of custom, by what test the allegations of plaintiff and defendant were respectively to stand or fall. Finally, the arrangement of the stages of the litigation was entirely different. It is with something of a shock that the modern lawyer learns that in civil and criminal causes alike “judgment” invariably preceded “trial.” Reflection will soon convince him that each of these words had in the Middle Ages a meaning different from what it bears to-day. These ancient meanings can be best understood by following the stages of the old procedure.

(1) The initial difficulty was to obtain the presence of the defendant in court, since there existed a strange reluctance either to compel his attendance or to allow judgment to pass against him by default. No initial writ was issued commanding him to appear; almost endless delays were allowed.

(2) When both parties had been, after many adjournments, actually brought face to face before the court, the statements alike of the claim and of the defence were made verbally and in set _formulae_, the slightest slip or stumble in the words of which involved complete failure. This is merely one illustration of the tremendously formal and technical nature of early legal procedure common to all half-developed systems of jurisprudence.

(3) Before the plaintiff could put the defendant finally on his defence, he required to show some preliminary presumption of the probability or _bona fides_ of his case. This he usually did by producing two friends ready to substantiate his claim, known sometimes as his “suit” (Latin _secta_), or his “fore-witnesses.” Their evidence was not weighed against the “proof” afterwards led by the defendant; its object was merely to warrant the Court in demanding “proof” from the latter at all.[143]

Footnote 143:

Sometimes no fore-witnesses were required; for example, to choose an obvious case, where the claim was for the restoration of stolen cattle, which had been traced by “hue and cry” to defendant’s house or byre. The presumption of guilt was here so strong as to render corroborative evidence unnecessary. The plaintiff’s unsupported oath was thus sufficient to put the defendant on his “trial.” On the other hand, in the absence alike of presumption and of witnesses swearing in support of plaintiff’s oath, the defendant escaped without any “trial” at all.

(4) Then came the judgment—the chief or “medial” judgment, so called to distinguish it from the less important final judgment or decree which came at a later stage. This medial judgment or “doom,” to use the Anglo-Saxon word, partook in no respect of the nature of the judgment of a modern tribunal. It came _before_ the proof or trial, not after it. It consisted indeed in decreeing whether or no, on the strength of the previous procedure, the defendant should be put to his proof at all; and if so, _what_ “proof” should be demanded.

Now, the exact test to be appointed by the court varied somewhat, according to circumstances, but long-established custom had laid down with some exactitude a rule applicable to every case likely to occur; and, further, the possible modes of proof were limited to some four or five at the outside. In Anglo-Saxon times, these were mainly compurgation, ordeal, witnesses (whose functions were, however, widely different from those of witnesses in modern law), and charters. The Norman Conquest introduced for the new-comers, a form of proof previously unknown in England—"trial by combat"—which tended, for the upper classes at least, to supersede all earlier methods of procedure. The “proof,” of whatever kind it might be, thus appointed by the “judges” for the defendant’s performance was technically known as a “law” (Latin _lex_) in the sense of a “test” or “trial” or “task,” according to his success or failure in which his case should stand or fall.[144]

Footnote 144:

See _infra_ under chapters 38 and 39, where the meaning of _lex_ is discussed.

It will be apparent that to pronounce a “judgment” in this sense was a simple affair, a mere formality in the ordinary case, where room for dubiety could hardly be admitted; and thus it was possible for “judgment” to be delivered by all the members of a feudal court, or even by all the suitors present at a meeting of the hundred or shire-moot.

(5) The crucial stage, this “trial” which thus came after “judgment,” consisted in one party (usually the defendant) essaying, on the day appointed, to satisfy the court as to the truth of his allegations by performing the task or “law” which had been set or “doomed” to him. When this consisted in the production of a charter, or of “transaction witnesses” (that is, the testimony of those officials appointed in each market-town to certify the conclusion of such bargains as the sale of cattle), it commends itself readily to the modern understanding and approval. More frequently, however, it took the form of “an oath with oath-helpers,” the plaintiff bringing with him eleven or twelve of his trusty friends or dependents to swear after him the words of a long and cumbrous oath, under the risk of being punished as perjurers for any slip in the formula. This was known also as compurgation. Sometimes the decision was referred to the intervention of Providence by appealing to the ordeal of the red-hot iron or the more-dreaded ordeal of water. After the Norman Conquest, the trial in all litigations between men of high rank, took the form of _duellum_ or legally regulated combat between the parties. The defendant gained his case if he caused the plaintiff to own himself worsted by uttering the word “craven.” He gained his case equally if he only held out till nightfall (when the combat terminated) against the plaintiff’s attempts to force him to utter that fateful word.[145]

Footnote 145:

Details may be studied in Dr. George Neilson’s _Trial by Combat_.

The battle was fought out before the “judges,” who, in the case of an earl or baron, were the other earls and barons assembled as his peers in the King’s court; and, in the case of the tenant of a mesne lord, were the other freeholders of the same manor.

The ancient “trial” (the importance of which is increased by the fact that it continued long after 1215, and may be traced in several clauses of Magna Carta)[146] was thus something entirely different from the modern “trial.” It may be said without exaggeration that there was no “trial” at all in the current meaning of the word—no balancing of the testimony of one set of witnesses against another, no open proof and cross-examination, no debate on the legal principles involved. The ancient “trial” was merely a formal test, which was, except in the case of battle, entirely one-sided. The phrase “burden of proof” was inapplicable. The litigant to whom “a law” was appointed had the “privilege of proof” rather than the “burden of proof,” and he usually won his case—especially in compurgation, and even in ordeal if he had arranged matters properly with the priest who presided.[147]

Footnote 146:

See _infra_, chapters 38 and 39.

Footnote 147:

Ordeal and compurgation and other forms of _lex_ are further discussed _infra_, under chapters 38 and 39.

(6) The whole was concluded by the final “judgment,” or decree, which practically took the form of a sentence passed on the vanquished. The judges could scarcely be said to decide the case, since this had already been practically decided by the success or failure of the party on whom the proof had been laid. Those who gave sentence were “judges” merely in the sense of umpires who saw fairplay to both players, according to the acknowledged rules of the desperate game.[148]

Footnote 148:

Cf. Thayer, _Evidence_, p. 8. “The conception of the trial was that of a proceeding between the parties, carried on publicly, under forms which the community oversaw.”

In one sense, the final (as opposed to the medial) “judgment” was determined by the parties themselves, or by one of them; in another and higher sense the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent man. Those who delivered the final doom, had a purely formal task to perform, and had little in common with the “judges” of a modern court.[149]

Footnote 149:

These stages of procedure are all fully illustrated by the actual words of recorded cases of the thirteenth century. Two of these, both from the reign of John, one decided by battle, the other by ordeal, may here be cited. (1) "Hereward, the son of William, appeals Walter, the son of Hugh, of assaulting him, in the King’s peace, and wounding him in the arm with an iron fork, and giving him another wound on the head; and this he offers to prove on his body as the Court shall appoint. And Walter defends all of it by his body. And it is testified by the coroners and by the whole county that the same Hereward showed his wounds at the proper time, and has made sufficient suit. Therefore it is decreed that there should be “battle.”... Let them come armed, a fortnight from St. Swithin’s day, at Leicester." _Sel. Pleas of Crown_ (Selden Society), p. 18. (2) “Walter Trenchebof was said to have handed to Inger of Faldingthorpe the knife with which he killed Guy Foliot, and is suspected of it. Let him purge himself by water that he did not consent to it. He has failed and is hanged.” _Ibid._, p. 75.

The essentials of this procedure were the same in the Norman as in the Anglo-Saxon period, and that in all three classes of tribunals—popular courts, manorial courts, and royal courts.

Two innovations the Norman Kings did make; they introduced trial by combat (already sufficiently discussed), and likewise the continental method of obtaining information on sworn testimony. Among the prerogatives of the Norman Dukes one of the most valuable was the right to compel the sworn evidence of reliable men of any district—men specially picked for the purpose, and put on oath before answering the questions asked of them, thus endangering their eternal welfare in the event of falsehood, and laying themselves open to temporal penalties for perjury.

This procedure was known as _inquisitio_ (or the seeking of information) when regarded from the point of view of the government making the inquiry, and as _recognitio_ (or the giving of information) from the point of view of those supplying it. This extremely simple and practical device was flexible and capable of extension to endless new uses in the deft hands of the Norman Kings in England. William the Conqueror employed it in collecting the laws and customs of the conquered people, and, later on, in compiling Domesday Book; while his successors made it the instrument of various experiments in the science of taxation. It has a double claim to the interest of the constitutional historian, because it was one of the influences which helped to mould our Parliamentary institutions; and because several of the new uses to which it came to be put had a close connection with the origin of trial by jury. The recognitors, indeed, were simply local jurors in a rude or elementary form.[150]

Footnote 150:

The relation of “recognition” to trial by jury is fully discussed, _infra_, Part III., section 7.

III. _Reforms of Henry II. in Law Courts and Legal Procedure._ It was reserved for Henry of Anjou to inaugurate an entirely new era in the relations of the three classes of courts. He was the first king deliberately to plan the overthrow of the feudal jurisdictions by insidiously undermining them, if not yet by open attack. He was the first king to reduce the old district courts so thoroughly under the control of royal officials as to turn them practically into royal courts. He was the first king also to throw open the doors of his own courts of law to all-comers, to all freemen, that is to say, for the despised villein had for centuries still to seek redress in the court of that very lord of the manor who was too often his oppressor.

In brief, then, Henry’s policy was twofold: to convert the County Courts practically into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s own _Curia_; and to reduce all manorial or private courts to insignificance by diverting pleas to his own _Curia_, and leaving the rival tribunals to die gradually from inanition. Both branches of this policy met ultimately with complete success, although the event hung in the balance until long after his death. The barons, though partially deceived by the gradual and insidious nature of Henry’s reforms, did what they could to thwart him; but the current of events was against them and with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces plainly written in several chapters of Magna Carta.[151]

Footnote 151:

_E.g._ 34 and 39.

These contain what seem, at first sight, to be merely trivial alterations of technical points of court procedure; but inextricably bound up with them are principles of wide political and constitutional importance. Henry’s policy was to disguise radical reforms until they looked like small changes of procedure; it follows that the framers of Magna Carta, while appearing merely to seek the reversal of these trivial points, were really seeking to return to the totally different conditions which had prevailed prior to the reforms of Henry.

A short account of the main outlines of that monarch’s new system of procedure forms a necessary preliminary to a complete comprehension of these important chapters of Magna Carta. Such an account falls naturally into two divisions.

(1) _Criminal Justice._ (_a_) By his Assizes of Clarendon and Northampton Henry strictly reserved all important crimes for the exclusive consideration of his own judges either on circuit or at his court; and he demanded entry for these judges into franchises, however powerful, for that purpose. In this part of his policy, the King was completely successful; heinous crimes were, in the beginning of the thirteenth century, admitted on all hands to be “pleas of the Crown” (that is, cases exclusively reserved for the royal jurisdiction); and Magna Carta made no attempt to reverse this part of the Crown’s policy. The change was accepted as inevitable. All that was attempted in 1215 was to obtain a promise that these functions, now surrendered to the Crown forever, should be discharged by the Crown’s officials in a proper manner.[152]

Footnote 152:

See _infra_, under chapters 24 and 45.

(_b_) Henry’s usual good sense, in this matter stimulated by some notable miscarriages of justice, led him to question the equity of the procedure usually adopted in criminal pleas, namely, by “appeal” or formal accusation by the injured party, or his nearest surviving relative. He substituted, whenever possible, communal accusation for individual accusation; that is, the duty of proclaiming (or indicting) the suspected criminals of each district before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours specially selected for that purpose—the predecessors of the Grand Jury of later days. This new procedure, it is true, supplemented rather than superseded the older procedure; yet it marked a distinct advance. Appeals were discouraged and exact rules laid down restricting the right of accusation to certain cases and individuals.[153]

Footnote 153:

See _infra_, under chapter 54.

(_c_) A necessary complement of the discouragement of appeals was the discouragement of “trial by combat” also, since that formed the natural sequel. An ingenious device was invented and gradually extended to an increasing number of cases; an accused individual might apply for a writ known as _de odio et atia_, and thus avoid the _duellum_ altogether by having his guilt or innocence determined by what was practically a jury of neighbours.[154]

Footnote 154:

See _infra_, under chapter 36.

(2) _Civil Justice._ Henry’s innovations under this head were equally important.

(_a_) An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ process.” Once it was issued, all proceedings in other courts must stop. One special form of writ (known as _praecipe_), in particular, became a royal instrument for removing before the King’s own _Curia_ cases pending in the manorial courts of mesne lords. To do this was to enrich the King at the expense of some baron or other freeman, by bringing to the Exchequer fees which otherwise would be paid to the owner of the private court. This was plainly "to cause a freeman to lose his court"—an abuse specially struck at by chapter 34 of the Great Charter.

(_b_) The mass of new business attracted to the King’s Courts made it necessary to increase, the staff of judges and to distribute the work among them. A natural division was that ordinary pleas (or common pleas) should be tried before one set of judges, and royal pleas (or pleas of the Crown) before another. This distinction is recognized in many separate chapters.[155] Thus two groups of judges were formed, each of which was at first rather a committee of the larger _Curia_ as a whole than an independent tribunal; but, in later years, the two rapidly developed into entirely separate courts—the Court of Common Pleas (at first known as the Bench, that is, the ordinary Bench), and the Court of King’s Bench (that is, the royal Bench, known also at first as the court _Coram Rege_, since it was always supposed to be held in the King’s presence).

Footnote 155:

See _infra_, under chapters 17 and 24.

(_c_) Special procedure for determining pleas of disputed titles to land or rights of possession was also invented by Henry to take the place of the ancient method of trial by battle. These Assizes, as they were called, are fully discussed elsewhere.[156] The Grand Assize was looked on with suspicion by the barons as a procedure competent only before the royal courts, and therefore closely bound up with the King’s other devices for substituting his own jurisdiction for that of the private courts. The petty assizes, on the contrary, met with a ready acceptance, and the barons in 1215, far from objecting to their continuance, demanded that they should be held in regular sessions four times a year in each county of England.

Footnote 156:

See _infra_, under chapter 18.

These were the chief innovations which enabled Henry, while instituting many reforms urgently required and gladly welcomed by the mass of his subjects, at the same time to effect a revolution in the relations of royal justice to feudal justice. As time went on, new royal writs and remedies were being continually devised to meet new types of cases; and litigants flocked more and more readily to the King’s Courts, leaving the seignorial courts empty of business and of fees. Nor was this the only grievance of the barons. When one of their own number was amerced or accused of any offence involving loss of liberty or lands, he might be compelled by the Crown, under Henry and his sons, to submit to have the amercement assessed or the criminal proceedings conducted by one of the new Benches (by a tribunal composed of some four or five of the King’s officials), in place of the time-honoured judgment of his peers assembled in the _Commune Concilium_ (the predecessor of the modern Parliament).

Can we wonder that the barons objected to be amerced and judged by their inferiors?[157] Can we wonder that they resented the complete though gradual supersession of their own profitable jurisdictions by the royal courts?[158] or that they looked with suspicion on every new legal development of the royal justice? Can we wonder that, when they seemed to have King John for the moment in their power, they demanded redress of this group of grievances, as well as of those connected with arbitrary increase of feudal burdens?

Footnote 157:

See _infra_, under chapters 21 and 39.

Footnote 158:

See _infra_, under chapter 34.

The cause for wonder rather is that their demands in this respect were not more sweeping and more drastic. It was one thing for their fathers to have endured the encroachments of so strong a King as Henry II.—far too wise a statesman to show clearly whither his innovations were ultimately tending, and (some lapses notwithstanding) a just ruler on the whole, using his increased prerogatives with moderation and for national ends. It was quite another thing to endure the same encroachments (or worse) from an unpopular King like John, discredited and in their power, who had neither disguised his arrogance nor made good use of his prerogatives. Royal justice, as dispensed by John, was in every way inferior to royal justice as dispensed under his father’s vigilant eye. Yet the exasperated barons, in the hour of their triumph, actually accepted, and accepted cordially, one half of royal justice; while they sought to abolish only the other half. The chapters bearing on the question of jurisdiction may thus be arranged in two groups, some reactionary, and some favourable to Henry’s reforms. On the one hand, no lord of a manor shall be robbed of his court by the King evoking before the royal courts pleas between two freeholders of the lord’s manor;[159] no freeman shall be judged or condemned by the King’s officials, but only before the full body of his peers (that is, of his fellow earls and barons, if he be an earl or baron, and of his fellow tenants of the manor, if he holds of a mesne lord);[160] earls and barons must be amerced only by their equals.[161] On the other hand, in prescribing remedies for various abuses connected with numerous branches of legal procedure recently introduced into the royal courts, the barons accepted by implication this new procedure itself and the royal encroachments implied therein. For example, the Crown’s right to hold “Common Pleas” was impliedly admitted, when the barons asked and obtained a promise that these should be tried in some certain place (that is, at Westminster).[162] Yet these very pleas, ordinary ones in which the Crown had no special interest, as opposed to Pleas of the Crown in which it had, must have included many cases which, prior to Henry II.’s reforms, would not have been tried in a royal court. Again, in regulating the various Petty Assizes, chapters 18 and 19 admit the Crown’s right to hold them. Such Assizes must be taken henceforth four times a year. Here, as in chapter 40, the ground of complaint is not that there is too much of royal justice, but rather that there is too little of it; it is henceforth to be neither delayed nor denied. Further, the encroachments made by Henry II. in 1166 on the rights of private franchises in the matter of criminal jurisdiction are homologated by acquiescence in the King’s definition of “Pleas of the Crown” implied in chapter 24.

Footnote 159:

c. 34

Footnote 160:

c. 39.

Footnote 161:

c. 21.

Footnote 162:

c. 17.

These, then, are the two clearly contrasted groups into which the innovations made by Henry and his sons, within the province of justice, naturally fell as viewed by John’s opponents in 1215: some of them had now come to be warmly welcomed, and these, it was insisted, must be continued by the Crown; while some of them still excited as bitter opposition as ever, and these, it was insisted, must be utterly swept away.