Chapter 43 marks the growing hostility against the accumulation by the

monasteries of wealth in the form of landed estates, and begins the series of legislative measures which culminated in the Statute of Mortmain.[265] The times were not ripe in 1217 for a final solution of this problem, and the charter of that year contented itself with an attempt to remedy one of the subsidiary abuses of the system merely, and not to abolish the main evil. An ingenious expedient had been devised by lawyers to enable tenants to cheat their lords out of some of the lawful feudal incidents. Religious houses formed one species of corporation, and all corporations made bad tenants, since, as they never died, the lord of the fief was deprived of the possibility of a wardship, relief, or escheat falling to him. This was a hardship; but it was not unfair, provided that the transaction which made the abbey or monastery owner of the subjects was a _bona fide_ one. Sometimes, however, more or less collusive agreements were made between a lay free-holder and a religious house whereby a new link was inserted in the feudal chain to the prejudice of the freeholder’s lord. The freeholder bestowed his lands on a particular house, which took his place as the new tenant of the lord and then subinfeudated the same subjects to the original tenant, who thus got his lands back again, but now became tenant of the church, not of his former lord. The lord was thus left with a corporation for his tenant and lost all the profitable incidents, which would, under the new arrangement, accrue to the church when the freeholder died. Such expedients were prohibited, under pain of forfeiture, by chapter 43 of the re-issue of 1217; and this prohibition was interpreted very liberally by the lords in their own favour.[266]

Footnote 265:

7 Edward I., also known as the Statute _de religiosis_.

Footnote 266:

See Pollock and Maitland, I. 314.

These were the main alterations made in 1217 in the tenor of the Great Charter.[267] This re-issue is of great importance, since it represents practically the final form taken by the Charter, only two changes being made in subsequent issues.[268] On the 22nd February, 1218, copies of the Great Charter in this new form were sent to the sheriffs to be published and enforced. In the writs accompanying them, the special attention directed to the clause against unlicensed castles shows the importance attached to their demolition.[269]

Footnote 267:

Minor variations are discussed under their appropriate chapters _infra_. A full list is given by Blackstone, _Great Charter_, xxxvi.

Footnote 268:

_Cf._ Stubbs, _Const. Hist._, II. 27. “This re-issue presents the Great Charter in its final form.”

Footnote 269:

The terms of these writs are preserved in _Rot. Claus._, I. 377.

The Regent and the ministers of the Crown seem to have felt increasingly the inconvenience of conducting the government without a great seal of the King. There was a natural reluctance to accept grants authenticated merely by substitutes for it, since these might not be treated as binding on the monarch when he came of age. The Regent at last agreed to the engraving of a great seal for Henry, but not without misgivings. To prevent it being used by unscrupulous ministers to validate lavish grants to their own favourites to the impoverishment of the Crown, the Council, on the advice of the Regent, issued a proclamation that no charter or other deed implying perpetuity should be granted under the new seal during the King’s minority—a saving clause of which Henry was destined to make a startling use. This proclamation was probably issued soon after Michaelmas 1218.[270]

Footnote 270:

Stubbs, _Const. Hist._, II. 30. The _Annals of Waverley_, p. 290, speak of a re-issue of the charters about this date; but this probably results from confusion with what happened a year earlier. See Stubbs, _Ibid._

On 14th May, 1219, England lost a trusted ruler through the death of the aged Regent, whose loyalty, firmness, and moderation had contributed so much to repair the breaches made in the body politic by John’s evil deeds, and the consequent civil war. After the good Earl of Pembroke’s death, the Bishop of Winchester and Hubert de Burgh contended for the chief place in Henry’s councils, with alternating success, but neither of them succeeded to the title of _Rector regis et regni_.[271] A few years later, the young King seems to have grown impatient under the restraints of a minority, and the Roman Curia was ready to bid for his goodwill by humouring him. In 1223 Honorius III., by letter dated 13th April, declared Henry (then only in his sixteenth year) to be of full age as regarded most of the duties of a king.[272]

Footnote 271:

Stubbs, _Const. Hist._, II. 31.

Footnote 272:

Stubbs, _Const. Hist._, II. 32, and authorities there cited.

The terms of this papal letter may have suggested to some of Henry’s councillors the possibility of renouncing the Charters on the ground that they had been granted to the prejudice of the King before he had been declared of full age. One of his flatterers, William Briwere by name, at a “colloquium” held in January, 1223, advised him to repudiate the two Charters when requested by Stephen Langton to confirm them. Briwere’s bold words are reported by Matthew Paris.[273] “_Libertates quas petitis, quia violenter extortae fuerunt, non debent de jure observari._” This doctrine of repudiation moved the primate to anger, and Henry, still accustomed to leading-strings, gave way, swearing to observe the terms of both charters. An element of truth, however, underlay Briwere’s advice, and the whole incident probably showed to the more far-seeing friends of liberty the necessity of a new and _voluntary_ confirmation of the Charters by the King. An opportunity for securing this occurred next year, when Henry at Christmas, 1224, demanded one-fifteenth of all his subjects’ moveables. He was met by a firm request that he should, in return for so large a grant, renew Magna Carta. The result was the re-issue on 11th February, 1225, of both Charters each of which was, as a matter of course, fortified by the impression of the great seal recently made. The importance of the whole transaction was enhanced by the declaration made by Honorius III. only two years previously, that Henry was of full age to act for himself. The new forest Charter was practically identical with that issued in 1217; while the only alterations in the tenor of the Charter of Liberties were the result of a laudable determination to place on record the circumstances in which it had been granted. In the new preamble Henry stated that he conceded it “_spontanea et bona voluntate nostra_” and all reference to the consent of his magnates was omitted, although a great number of names appear as witnesses at the close of the Charter. These alterations were intended to emphasize the fact that no pressure had been brought to bear on him, and thus to meet future objections such as William Briwere had suggested in 1223, namely, that the confirmation of the Charter had been extorted by force.[274]

Footnote 273:

_Chronica Majora_, III. 76.

Footnote 274:

Dr. Stubbs thinks that in thus avoiding one danger, a greater danger was incurred. "It must be acknowledged that Hubert, in trying to bind the royal conscience, forsook the normal and primitive form of legislative enactment, and opened a claim on the king’s part to legislate by sovereign authority without counsel or consent." (_Const. Hist._, II. 37.) This seems to exaggerate the importance of an isolated precedent, the circumstances of which were unique. The confirmation was something far apart from an ordinary “legislative enactment.”

The “consideration” also clearly appears in the concluding portion of the Charter, where it is stated that in return for the foregoing gift of liberties along with those granted in the Forest Charter, the archbishops, bishops, abbots, priors, earls, barons, knights, free tenants, and all others of the realm had given a fifteenth part of their moveables to the King.

The prominence given to this feature brings the transaction embodied in the re-issue of 1225 (as compared with the original grant of 1215) one step nearer the legal category of “private bargain.” It is, in one aspect, simply a contract of purchase and sale. Another important new clause follows—founded probably on a precedent taken from chapter 61 of the Charter of King John: Henry is made significantly to declare “And we have granted to them for us and our heirs, that neither we nor our heirs shall procure any thing whereby the liberties in this charter shall be infringed or broken; and if any thing shall be procured by any person contrary to these premises, it shall be held of no validity or effect.” This provision was clearly directed against future papal dispensations or abrogations, such as that which King John had obtained from Innocent in 1215. The clause, however, was diplomatically made quite general in its terms.[275]

Footnote 275:

A few minor alterations, such as the omission of the clause against unlicensed castles (now unnecessary) and some verbal changes need not be mentioned. A list of these is given by Blackstone, _Great Charter_, l.

One original copy of this third re-issue of the Great Charter is preserved at Durham with the great seal in green wax still perfect, though the parchment has been “defaced and obliterated by the unfortunate accident of overturning a bottle of ink.”[276] A second is to be found at Lacock Abbey, in Wiltshire. The accompanying Forest Charter is also preserved at Durham.[277]

Footnote 276:

See Blackstone, _Ibid._, xlvii. to l.

Footnote 277:

_Ibid._

This third re-issue brings the story of the genesis of the Great Charter to an end. It marked the final form assumed by Magna Carta; the identical words were then used which afterwards became stereotyped and were confirmed, time after time, without further modification. It is this Charter of 1225 which is always referred to in the ordinary editions of the Statutes, in the courts of law, in parliament, and in a long series of classical law books beginning with the second _Institute_ of Sir Edward Coke.[278]

Footnote 278:

One slight exception should be noted. In one point of detail a change had occurred since 1225; the rate of relief payable from a barony had been reduced from £100 to 100 marks. See _infra_ under chapter 2.

Although the Charter, thus, in 1225 took the permanent place it has since retained among the fundamental laws of England, it was not yet secure from attacks. Two years later the actions of Henry raised strong suspicions that he would gladly annul it, if he dared.

The young King, in spite of the Pope’s bull declaring him of full age in 1223, had in reality only passed from one set of guardians to another; he had long chafed under the domination of the able but unscrupulous Peter des Roches, Bishop of Winchester, when in the beginning of 1227 he suddenly rebelled. Acting probably under the advice of Hubert de Burgh, who wished to return to power, Henry determined to shake off the control of Bishop Peter. At a Council held at Oxford in January, 1227, Henry, though not yet twenty, declared himself of full age;[279] and soon thereafter showed what use he intended to make of his newly acquired freedom. Making an unexpected application of the proclamation issued by the Regent, William Marshal, in 1218, that the great seal should not, during the minority, be used to authenticate any grants in perpetuity of royal demesne lands or other rights of the Crown, Henry now interpreted this to imply the nullity of all charters whatsoever which had been issued under the great seal since his accession. He even tentatively applied this startling doctrine to the Forest Charter.

Footnote 279:

A bull of Gregory IX., dated 13th April, 1227, confirmed Henry in this declaration that his minority was ended. See Blackstone, _Great Charter_, li., and Stubbs, _Const. Hist._, II. 39.

Henry’s new policy seems to have been endorsed by the magnates present, and on 21st January, 1227, he issued by their “common counsel” a series of “letters close” directing that all recipients of Crown charters must apply for their renewal—a ceremony requiring, of course, to be handsomely paid for. On 9th February a second series of “letters close” was issued, resulting in the extension of many forests to their old boundaries once more.[280]

Footnote 280:

See _Rot. Claus._, II. 169, and Stubbs, _Const. Hist._, II. 40, where it is suggested that “the declaration seems merely to have been a contrivance for raising money.” This is not quite accurate. Mr. G. J. Turner, in his introduction to _Select Pleas of the Forest_, pp. xcix. to cii., gives a full and convincing account of Henry’s procedure and motives. “The king neither repudiated the Charter of the Forest nor annulled the perambulations which had been made in his infancy. He merely corrected them after due inquiry.”

Fears, apparently unfounded, that the Great Charter was in danger, seem to have been rife. If Henry really entertained any intention of setting aside Magna Carta, it is fortunate that the attack upon it, suggested to the King by William Briwere in January, 1223, was not seriously attempted until four years later. The delay was of supreme importance, since there had intervened the third re-issue of the Charter containing the declaration that the King had acted voluntarily, and fortified by the facts that Honorius had previously declared him of full age for such purposes, and that he had accepted a price for the confirmation of the Charter. Henry could not now repudiate the papal dispensation which he had gladly accepted and acted upon four years earlier. In this way the re-issue of both charters in 1225 had gone far to secure the national liberties. Henry shrank from any open infringement of the Great Charter; and, although he was partially successful in restoring the forests to their old wider boundaries, thus undoing many reforms of his minority, he proceeded without violating the letter of the Forest Charter. Henceforward, Henry’s attitude towards the charters was a settled one, and easily understood. He confirmed them with a light heart whenever he could obtain money in return, and thereafter acted as though they did not exist.

Henceforth history is concerned not with re-issues but with confirmations of the Great Charter. Of these the number is considerable, beginning with that granted at Westminster on 28th January, 1237;[281] but it forms no part of the scheme of this Historical Introduction to describe these in detail.[282] One of them, the so-called _Confirmatio Cartarum_ of 5th November, 1297, is specially important, not because it is a confirmation, but because it is something more. It contains new clauses which impose restrictions on the taxing power of the Crown; and these, to some extent, take the places of those chapters (12 and 14) of the original grant of John, which had been omitted in all intervening re-issues and confirmations.

Footnote 281:

Blackstone, _Great Charter_, 68–9; Stubbs, _Sel. Charters_, 365–6.

Footnote 282:

The more important among them are enumerated by Coke in his second _Institute_, p. 1. Further details are given by Blackstone, _Great Charter_, lii.; Thomson, _Magna Charta_, 437–446; and in Bémont, _Chartes_, pp. xxx. to liii.

A Statute of 1369 (42 Edward III. c. 1), requires special notice, since it commands that “the Great Charter and the Charter of the Forest be holden and kept in all points, and if any statute be made to the contrary that shall be holden for none.” Parliament in 1369 thus sought to deprive future Parliaments of the power to effect any alterations upon the terms of Magna Carta. Yet, if Parliament in that year had the power to add anything by a new legislative enactment to the ancient binding force of the Great Charter, it follows that succeeding Parliaments, in possession of equal powers, might readily undo by a second statute what the earlier statute had sought to effect. If Parliament had power to alter the sacred terms of Magna Carta itself, it had equal power to alter the less sacred statute of 1369 which declared it unalterable. The terms of that statute, however, are interesting as perhaps the earliest example on record of the illogical theory (frequently reiterated in later years) that the English Parliament might use its present legislative supremacy in such a manner as to limit the legislative supremacy of other Parliaments in the future.

II. Magna Carta and the Reforms of Edward I.

The Great Charter, alike from its excellences and from its defects, exercised a potent influence on the trend of events throughout the two succeeding reigns. It is hardly too much to say that the failure of Magna Carta to provide adequate machinery for its own enforcement is responsible for the spirit of unrest and for the protracted struggles and civil war which made up the troubled reign of Henry III.; while the difference of attitude assumed by Henry and by his son Edward respectively towards the scheme of reform it embodied explains the fundamental difference between the two reigns—why the former was so full of conflicts and distress, while the latter was so prosperous and progressive. To trace the history of these reigns in detail lies outside the scope of this Historical Introduction. It seems necessary, however, to emphasize such outstanding events as have an obvious and close connection with the Great Charter, and also to outline the policy of Edward, which led ultimately to the triumph of its underlying principles.

The fundamental difference between the reigns of Henry III. and Edward I. lies in this, that while Henry, in spite of numerous nominal confirmations of Magna Carta, never loyally accepted the settlement it contained, Edward, on the contrary, acquiesced in the main provisions of the Great Charter, under many subtle modifications it is true, yet honestly on the whole, and with a sincere intention to carry them into practice.

At the same time, the attitude even of Henry III. towards Magna Carta indicates a distinct advance upon that of his father. It was much that the advisers of John’s infant heir solemnly accepted, on behalf of the Crown, the provisions of the Charter, and strove to enforce them during the minority; and it was even more that Henry, on attaining majority, confirmed the arrangement thus arrived at, freely and on his own initiative, and found himself thereafter unable openly to repudiate the bargain he had made. Yet the settlement of the dissensions between Crown and baronage was still nominal rather than real. In the absence of proper constitutional machinery, the king was merely bound by bonds of parchment which he could break at pleasure. The victory of the friends of liberty proved a hollow one, since unsupported promises count for little in the great struggles fought for national liberties. Even the crude constitutional devices of the Charter of 1215 entirely disappeared from its confirmations; and, in the absence of all sanctions for its enforcement, the Charter became an empty expression of good intentions. If a quarrel arose, no constitutional expedient existed to reconcile the disputants—nothing to obviate a final recourse to the arbitrament of civil war. Thus, part of the blame for the recurring and devastating struggles of the reign of Henry III. must be attributed to the defects of the Great Charter.

The whole interest of the reign indeed lies in the various attempts made to evolve adequate machinery for enforcing the liberties contained in Magna Carta. Experiments of many kinds were tried in the hope of turning theory into practice. The system of government outlined in the Provisions of Oxford of 1258, for example, reproduced the defects of the crude scheme contained in chapter 61 of the Great Charter, and added new defects of its own. It sought to keep the king in the paths of good government by the coercion of a body of his enemies. This baronial committee was not designed to enter into friendly co-operation with Henry in the normal work of government, but rather to supersede entirely his right to exercise certain of the royal prerogatives. No glimmering was yet apparent of the true solution afterwards adopted with success. It was not yet realized that the best way to control the Crown was through the agency of its own ministers, and not by means of a hostile opposition organized for rebellion—that the correct policy was to make it difficult for the king to rule except through regular ministers, and to secure that all such ministers should be men in whom the _Commune Concilium_ reposed confidence and over whom it exercised control.

It is true that Simon de Montfort may have had some vague conception of the real constitutional remedy for the evils of the reign; but his ideals were overruled in 1258 by the more extreme section of the baronial party. Earl Simon indeed had one opportunity of putting his theories into practice. During the brief interval between the battle of Lewes, which made him supreme for the moment, and the battle of Evesham, which ended his career, he enjoyed an unfettered control over the movement of reform; and some authorities find in the provisional scheme of government, by means of which he attempted to realize his political ideals in the closing months of 1264, traces of the true constitutional expedient afterward successfully adopted as a solution of the problem. In one respect, undoubtedly, the Earl of Leicester did influence the development of the English constitution; he furnished the first precedent for a national Parliament, which reflected interests wider than those of the Crown tenants and the free-holders, when he invited representatives of the boroughs to take their places by the side of the representatives of the counties in the national council summoned to meet in January, 1265. His schemes of government, however, were not fated to be realized by him in a permanent form. The utter overthrow of his faction followed his decisive defeat and death at Evesham on 4th August, 1265.

The personal humiliation of Simon de Montfort, however, in reality assured the ultimate triumph of the cause he had made his own. Prince Edward, from the moment of his brilliant victory at Evesham, was not only supreme over his father’s enemies, but henceforth he was supreme also within his father’s councils. He found himself in a position at once to realize some of his most important political ideals; and from the very moment of his victory, he adopted as his own, with some modification, it is true, the main constitutional conceptions of his uncle Earl Simon, who had been his friend and teacher before he became his deadliest enemy.

Edward Plantagenet, alike when acting as the chief adviser of his aged father and after he had succeeded him on the throne, not only accepted the main provisions of the Great Charter,[283] but adopted also, along with them, a new scheme of government which formed their necessary counterpart. To Edward is due the first dim conception of “parliamentary government,” to this extent at least, that the king, as head of the executive government, should take a national council into partnership with him in the work of national administration. His political ideals were the natural result of the experience obtained during the later years of his father’s reign; and he endeavoured to embody in his scheme of government the best parts of the various experiments in which that reign abounded. His policy, although founded on that of his uncle Simon de Montfort, was profoundly modified by his own individual genius. The very fact of the adoption of Earl Simon’s ideals by the heir to the throne entirely altered their chances of success. All such schemes had been foredoomed to failure so long as they merely emanated from an opposition leader however powerful; but their triumph was speedily assured now that they were accepted as a programme of reform by the monarch himself. Henceforth the new political ideals, summed up in the conception of a national Parliament, were to be fostered by the Crown’s active support, not merely thrust upon the monarchy from without.

Footnote 283:

The best proof of this will be found in a comparison of Magna Carta with the Statute of Marlborough, and the chief statutes of Edward’s reign, notably that of Westminster I.

Under the protection of Edward I.—the last of the four great master-builders of the constitution—the _Commune Concilium_ of the Angevin kings (itself a more developed form of the Curia Regis of the Conqueror and his sons) grew into the English Parliament. This implied no sudden dramatic change, but a long slow process of adjustment, under the guiding hand of Edward.

The main features of his scheme may be briefly summarized: Edward’s conception of his position as a national king achieving national ends, the funds necessary for effecting which ought to be contributed by the nation, naturally led him to devise a system of taxation which would fill the Exchequer while avoiding unnecessary friction with the tax-payer. His problem was to keep his treasury full in the way most convenient to the Crown, and at the same time to reduce to a minimum the discontent and inconvenience felt by the nation at large under the burden. In broadening the basis of taxation, he was led to broaden the basis of Parliament; and thus he advanced from the feudal conception of a _Commune Concilium_, attended only by Crown tenants, to the nobler ideal of a national Parliament containing representatives of every community and every class in England. The composition of the great council was altered; the principle of representation known for centuries before the Conquest in English local government, now found a home, and, as it proved, a permanent home, in the English Parliament. It was obvious that Parliament, whose composition was thus altered, must meet more frequently than of old. Edward elevated the national council from its ancient position of a mere occasional assembly reserved for special emergencies, to a normal and honoured place in the scheme of government. Henceforth, frequent sessions of parliament became a matter of course.

The powers of this assembly also widened almost automatically, with the widening of its composition. Taxation was its original function, since that was the primary purpose (so the best authorities maintain in spite of some adverse criticism) for which the representatives of the counties and the boroughs had been called to it. Legislation, or the right to veto legislation, was soon added—although at first the new-comers had only a humble share in this. The functions of hearing grievances and of proffering advice had, even in the days of the Conqueror, belonged to such of the great magnates as were able to make their voices heard in the Curia Regis; and similar rights were gradually extended to the humbler members of the augmented assembly. The representatives of counties and of towns retained rights of free discussion even after Parliament had split into two separate Houses. These rights, fortified by command of the purse strings, tended to increase, until they secured for the Commons some measure of control over the executive functions of the king. This parliamentary control varied in extent and effectiveness with the weakness of the king, with his need of money, and with the political situation of the hour.

The new position and powers of Parliament logically involved a corresponding alteration in the position and powers of the smaller but more permanent council or _Concilium Ordinarium_ (the future Privy Council). This had long been increasing in power, in prestige, and in independence, a process quickened by the minority of Henry III. The Council was now strengthened by the support of a powerful Parliament, usually acting in alliance with the leaders of the baronial opposition. The members of the Council were generally recruited from Parliament, and their appointment as king’s ministers and members of the Curia was strongly influenced by the proceedings in the larger assembly.

The Council thus became neutral ground on which the conflicting interests of king and baronage might be discussed and compromised. Wild schemes like that of chapter 61 of Magna Carta or like that typified in the Committee appointed by the Mad Parliament in 1258, were now unnecessary. The king’s own ministers, backed by Parliament, became an adequate means of enforcing the constitutional restraints embodied in royal Charters. The problem was thus, for the time being, solved. A proper sanction had been devised, fit to change royal promises into realities.

To sum up, Edward’s aim of ruling as a national king implied the frequent assembling of a central parliament composed of individuals fitted to act as links between the Crown and the various classes of the English nation whom he expected to contribute to the national Exchequer. It implied also that the national business should be conducted by ministers likely to command the confidence of that parliament.[284] Thus, Edward’s policy dimly foreshadowed some of the most fundamental principles of modern constitutional government—parliament, representation, ministerial responsibility. Edward Plantagenet was, of course, far from realizing the full meaning of these conceptions, and if he had realized it, he would have been most unwilling to accept them; yet he was unconsciously helping forward the cause of constitutional progress.

Footnote 284:

The doctrine that the _Commune Concilium_ should have some voice in the appointment of the Ministers of the Crown had indeed been acted upon on several occasions even in the reign of Henry III. See Stubbs, _Const. Hist._, II. 41.

This temporary solution, during the reign of Edward I., of an ever-recurring problem of government has been viewed in two different aspects. It is sometimes regarded simply as the result of the pressure of events—as a natural phenomenon evolved, subject to natural laws, to meet the needs of the age. By other writers it is attributed to the wisdom and conscious action of King Edward. The two views are perhaps not so inconsistent as they at first sight seem, since great men work in harmony with the spirit of their times, and appear to control events which they only interpret and express. The bargain made at Runnymede between the English monarch and the English nation found its necessary counterpart and sanction, before the close of the thirteenth century, in the conception of a king ruling through responsible ministers and in harmony with a national Parliament. Edward Plantagenet was merely the instrument by whose agency the new conception was for a time partially realized. Yet, he merits the gratitude of posterity for his share in the elaboration of a working scheme of government, which took the place of the clumsy expedients designed as constitutional sanctions by the barons in 1215. He supplied the logical complement of the theories vainly enunciated in John’s Great Charter, thus changing empty expressions of good intentions into accomplished facts. The ultimate triumph of the principles underlying Magna Carta was assured through the constitutional machinery devised by Edward Plantagenet.