PART V.

MAGNA CARTA: ORIGINAL VERSIONS, PRINTED EDITIONS, AND COMMENTARIES.

I. Manuscripts of Magna Carta and Relative Documents.

The barons who had forced the Great Charter on King John were determined that its contents should be widely known and permanently preserved. It was not sufficient that the great seal should be formally impressed upon one parchment. Those who compelled John to submit were not content even with the execution of its terms in duplicate or in triplicate, but insisted that the great seal should be appended to many copies all of practically identical terms and of equal authority. These were to be distributed throughout the land, and to be preserved in important strongholds and among the archives of the chapters of cathedral churches.

I. _The extant original versions._ Of the many copies of the Charter authenticated under John’s great seal, four have escaped the destroying hand of time, and may still be examined by members of the public after nearly seven centuries have passed. These four records are:

(1) _The British Museum Magna Carta, number one_—formally cited as “Cotton, Charters XIII. 31A.” The recent history of this document is well known. It was found among the archives of Dover Castle in the seventeenth century; and not improbably it may have lain there for centuries before, possibly from a date not much later than that of its original execution; for the castle of Dover, like the Tower of London, was a natural place for the preservation of documents of national value. There it was discovered by Sir Edward Dering while warden of the castle, and by him it was presented to Sir Robert Cotton, accompanied by a letter dated 10th May, 1630.[285] It still forms an item in the collection preserved in the British Museum, which bears the name of the famous antiquary.

Footnote 285:

This letter is also preserved in the British Museum, and cited as “Cotton, Julius, C. III. Fol. 191.”

In the great fire of 23rd October, 1731, which attacked the Cottonian Library, this valuable Charter was seriously damaged and rendered in parts illegible, while the yellow wax of the seal was partially melted. It is possible that this accident has added somewhat to the prestige of this particular copy of Magna Carta, which, like the three others still extant, is written continuously, though with many contractions, in a neat, running, Norman hand. A special characteristic of this version is that some omissions seem to have been made in the body of the deed and to have been supplied at the foot of the parchment. These are five in number.[286] It is possible to regard them as corrections of clerical omissions due to carelessness or hurry in engrossing the deed; but the fact that one of the additions is distinctly in the King’s favour raises a strong presumption that they embodied additions made as afterthoughts to what had been originally dictated to the engrossing clerk, and that they were inserted at the King’s suggestion before he would adhibit the great seal.

Footnote 286:

These are carefully noted among the variations described by the editors of the Charters of Liberties forming Part I. of the first volume of the _Statutes of the Realm_. These addenda are (1) at the end of c. 48, “_per eosdem, ita quod nos hoc sciamus prius, vel justiciarius noster, si in Anglia non fuerimus_,” providing that the King should receive intimation of all forest practices branded as “evil” before they are abrogated; (2) two small additions, near the beginning of c. 53, (a), “_et eodem modo de justicia exhibenda_,” and (b) “_vel remansuris forestis_”; (3) in c. 56, these four words, “_in Anglia vel in Wallia_”; and (4) in c. 61 the words “_in perpetuum_” after “_gaudere_.” In the 2nd British Museum MS. three of these addenda appear at the foot, viz. (1), (2_a_) and (2_b_); but the words of (3) and (4) are incorporated in the body of that MS.

The importance of this document was recognized at a comparatively early date, and a facsimile prepared by John Pine, a well-known engraver of the day, some eighteen months after the great fire. The engraving bears a certificate dated 9th May, 1733, narrating that the copy is founded on the original, which had been shrivelled up by the heat; but that where two holes had been burned, the obliterated words had been replaced from the other version (to be immediately described), also preserved in the Cottonian collection.

(2) _The British Museum Magna Carta, number two_—formally cited as “Cotton, Augustus, II. 106.” The early history of this document is unknown, but sometime in the seventeenth century it came into the possession of Mr. Humphrey Wyems, and by him it was presented to Sir Robert Cotton on 1st January, 1628–9. Unlike the other Cottonian copy, this one is happily in an excellent state of preservation; but there is no trace left of any seal.[287] Three of the five addenda inserted at the foot of the copy previously described are found in a similar position here; but the substance of the two others is included in the body of the deed. On the left-hand margin, titles intended to be descriptive of several chapters occur in a later hand.[288] Thus for the preservation of two original copies of the national charter of liberties the nation is indebted to Sir Robert Cotton, but for whose antiquarian zeal they might both have been lost. Apparently, however, a story told by several authors[289] as to the humiliating fate which threatened the original Magna Carta must be rejected. Sir Robert, it is said, discovered “the palladium of English liberties” in the hands of his tailor at the critical moment when the scissors were about to transform it into shapes for a suit of clothes. This is undoubtedly a fable, since both manuscripts of Magna Carta in the Cottonian collection are otherwise accounted for.

Footnote 287:

“The fold and label are now cut off, though it is said once to have had slits in it for two seals, for which it is almost impossible to account; but Dr. Thomas Smith, in his Preface to the _Cottonian Catalogue_, Oxford, 1695, folio, states that they were those of the barons” (Thomson, _Magna Charta_, 425).

Footnote 288:

Reproductions of this copy are sold at the British Museum at 2s. 6d. each.

Footnote 289:

See Isaac D’Israeli, _Curiosities of Literature_, I. 18, and Thomson, _Magna Charta_, 424.

(3) _The Lincoln Magna Carta._ This copy is under the custody of the Dean and Chapter of the Cathedral, where it has undoubtedly lain for many centuries. It has been suggested that Bishop Hugh of Lincoln, canonized by the Roman Church, whose name appears in the list of magnates consenting to John’s grant, may have brought it with him from Runnymede on his return to Lincoln. The word “Lincolnia” is endorsed in a later hand in two places at the back of the document on folds of the parchment. It has no corrections or additions inserted at the foot, but embodies in their proper places all those which occurred in the versions already discussed. Further, it is executed with more flourishes and in a more finished manner than these, and the inference is that it took longer to engross. The Record Commissioners in preparing the _Statutes of the Realm_ considered this version as of superior authority to any of the others and have accordingly chosen it as the copy for their engraving of Magna Carta published in 1810 in that valuable work, and also in the first volume of their edition of Rymer’s _Foedera_ in 1816.[290]

Footnote 290:

The engraving was executed to their order by James Basire.

(4) _The Salisbury Magna Carta_—preserved in the archives of the Cathedral there. The early history of this manuscript has not been traced, but its existence was known at the close of the seventeenth century.[291] Sir William Blackstone, in April, 1759,[292] instituted a search for it, but without success—his inquiries being met with the statement that it had been lost some thirty years before, during the execution of repairs in the Cathedral library. As its disappearance had really taken place during the tenure of the see by Gilbert Burnet, whose antiquarian interests were well known, his political adversaries accused him of appropriating it—an undoubted calumny, yet one to which some colour was lent by facts to be hereafter explained. The document had not been re-discovered in 1800 when the royal commission published its report of the result of its inquiries for national records.[293] Two sub-commissioners visited Salisbury in 1806 in search of it, but obtained no satisfaction. It seems, however, to have been re-discovered within the next few years, since it is mentioned in a book published in 1814,[294] and it is now exhibited to the public by order of the Dean and Chapter of Salisbury Cathedral. It resembles the Lincoln copy both in its beautiful leisurely writing and also in the absence of additions at the bottom of the parchment.[295]

Footnote 291:

See James Tyrrell, _History of England_, Vol. II. 821 (1697-1704).

Footnote 292:

Blackstone, _Great Charter_, p. xvii.

Footnote 293:

See _Report_ (1800), p. 341, containing the Return by the Chapter Clerk of the Cathedral Church of Salisbury, dated 15th May, 1800.

Footnote 294:

Dodsworth, _Historical Account of the Cathedral_, 202.

Footnote 295:

It is unnecessary to treat in detail of the copies of the charter not authenticated by John’s Great Seal, though some of these are of great value as secondary authorities. The four most important are (_a_) a copy appearing in the Register of Gloucester Abbey, (_b_) the Harleian MSS., British Museum No. 746 (which also contains the names of the twenty-five Executors in a hand probably of the reign of Edward I.), (_c_) in the Red Book of the Exchequer. There is also (_d_) an early French version, printed in D’Achery, _Spicilegium_, Vol. XII. p. 573, together with the writ of 27th September addressed to the Sheriff of Hampshire. See Blackstone, _Great Charter_, p. xviii., and Thomson, _Magna Charta_, pp. 428-430.

II. _Comparison of the Originals._ Prior to the publication of Sir William Blackstone’s great work, extraordinary confusion seems to have prevailed concerning the various Charters of Liberties. Not only was John’s Magna Carta confused with the various re-issues by Henry; but these latter were known only from an official copy of the Charter of 1225 contained in the confirming statute of the twenty-eighth year of the reign of Edward I., known as an “Inspeximus,” because of the opening word of the King’s declaration that he had seen the document of which he gave a copy. Neither Madox[296] nor Brady[297] was aware of the existence of any one of the four originals; and no mention is made of them in the first edition of Rymer’s _Foedera_, which appeared in 1704. Mr. Tyrrell indeed seems to have known of the second original copy in the British Museum and also of the Salisbury version.[298] Mr. Care[299] showed no clear knowledge of the various manuscripts, though he mentioned the existence of several. Even Sir William Blackstone in 1759 collated only the two Cottonian copies, since he failed to find that of Salisbury, and was unaware of the existence of the Lincoln manuscript.[300]

Footnote 296:

Thomas Madox, _Firma Burgi_ (1726). On p. 45, Madox refers only to the _Inspeximus_ of Edward I.

Footnote 297:

Robert Brady, _Complete History of England_, p. 126 of Appendix to Vol. I. (1685), takes his text of the Charter from Matthew Paris, “compared with the manuscript found in Bennet College Library.”

Footnote 298:

James Tyrrell, _History of England_ (1697-1704). In p. 9 of Appendix to Vol. II. p. 821, Tyrrell prints a text of John’s Charter founded on that of M. Paris, collated with those two originals.

Footnote 299:

Henry Care, _English Liberties in the Freeborn subjects’ inheritance; containing Magna Charta_, etc. (1719), p. 5. The first edition, with a somewhat different title, is dated 1691.

Footnote 300:

Strangely enough, Sir Thomas Duffus Hardy, so recently as 1837, in publishing his _Rotuli Chartarum_ (Introduction, p. ii. note 5) declared that no original of John’s Charter existed. Many copies, he knew, had been "made and deposited, for the sake of perpetuation, in all the principal religious houses in the kingdom. However, notwithstanding all the care taken by multiplication of copies, it is singular that no contemporary copy of King John’s Magna Carta has yet been found." The Lincoln MS. he dismissed as “certainly not of so early a date,” while he confuses the only one of the British Museum MSS. known to him with the Articles of the Barons. He further reasserts the fallacy, so clearly exposed by Blackstone eighty years earlier, that John had issued a separate _Carta de Foresta_.

As these four versions are practically identical in their substance—the variations being merely in the use of contractions or in other verbal changes of a trivial character—no important question seems to be involved in the discussion as to whether any one of them has greater value than the others. The Record Commissioners considered that the Lincoln copy was the first to be completed (and therefore that it possessed special authority), because, unlike the two Cottonian copies, it contained no insertions at the foot of the instrument. Yet it seems more plausible to argue that this very immunity from clerical errors, or from additions made after engrossment, proves that it was of later and less hurried execution than the others, and therefore of less authority, if any distinction is permissible. Mr. Thomson has much ground for his contention in speaking of the fire-marked version in the British Museum that “the same circumstances may probably be a proof of its superior antiquity, as having been the first which was actually drawn into form and sealed on Runnymede, the original whence all the most perfect copies were taken.”[301]

Footnote 301:

Thomson, _Magna Charta_, 422.

In all printed texts of Magna Carta, the contents are divided into a preamble and sixty-three chapters, and each chapter is numbered and treated in a separate paragraph by itself. There is no warrant for this in any one of the four originals, all of which run straight on from beginning to end, like other feudal charters, and contain no numbers or other indication where one provision ends and another begins. Strictly speaking, Magna Carta has thus no chapters: these are a modern invention, made for convenience of reference.

III. _The Articles of the Barons._ Of hardly inferior historical interest to these four original copies of the Great Charter is the parchment which contains the heads of the agreement made between John and the rebels on 15th June, 1215, from which the Charter was afterwards expanded. The parchment containing these heads, known as the Articles of the Barons, is now in the British Museum, cited officially as “Donation MSS. 4838.” The seven centuries which have passed over it have left surprisingly few traces; it is quite legible throughout, and still bears the impression of John’s great seal in brown wax. It is probable that this document may have passed with other English records into the hands of Prince Louis during the civil war which followed close on the transaction at Runnymede; that it was handed over to the Regent William Marshal in terms of the Treaty of Lambeth concluded in September, 1217; and that thereafter it was deposited in Lambeth Palace, where it remained until the middle of the seventeenth century. Archbishop Laud seems to have been aware of its historical interest, as he placed it among the more precious documents in his keeping. When threatened with impeachment by the Long Parliament, he thought it prudent to set his papers in order; and on 18th December, 1640, he dispatched for that purpose to his episcopal palace, his friend Dr. John Warner, Bishop of Rochester.

There was indeed no time to lose; a few hours later, Laud was committed to the custody of Black-Rod, and an official messenger was sent by the House of Lords to seal up his papers. Bishop Warner had, however, escaped with the Articles of the Barons before this messenger arrived; he kept it till he died, and at his death it passed to one of his executors named Lee, and from him to his son Colonel Lee, who presented it to Gilbert Burnet, afterwards Bishop of Salisbury and author of the famous _History of His Own Time_. When the Salisbury Magna Carta disappeared, Burnet was suspected of appropriating it to his own uses. The grounds which gave some apparent weight to the misrepresentations of his political opponents were that special facilities had been granted to him to search public records in the prosecution of his historical labours, and that as matter of fact he actually had in his possession—quite lawfully, as we now know—the Articles of the Barons, which was confused by the carelessness of early historians with Magna Carta itself. The calumny was so widely spread that Burnet thought it necessary formally to refute it, explaining that he had received the Articles as a gift from Colonel Lee. “So it is now in my hands, and it came very fairly to me.”

Bishop Burnet left it as a legacy to his son Sir Thomas Burnet; and on his death it passed to his executor David Mitchell, whose permission to print it Blackstone obtained in 1759. Shortly thereafter it was purchased from Mr. Mitchell’s daughter by another great historian, Philip, second Earl of Stanhope, and by him it was presented to the British Museum in 1769. It is now exhibited to the public along with the two Cottonian copies of Magna Carta. The Record Commissioners have reproduced it in facsimile in _Statutes of the Realm_ in 1810, and also in the _New Rymer_ in 1816.[302]

Footnote 302:

Reproductions of it, as well as of the second Cottonian version of the Charter, are sold by the authorities of the British Museum at the price of 2s. 6d.

The document begins with this headline: “_Ista sunt Capitula quae Barones petunt et dominus Rex concedit._” Then the articles follow in 49 paragraphs of varying length, separate, but unnumbered, each new chapter (unlike the chapters of Magna Carta, which run straight on as befits its character as a charter) beginning a new line. The numbers which invariably appear in all printed editions have no warrant in the original.

A blank space sufficient for two lines of writing occurs between paragraphs 48 and 49, indicating perhaps that the last chapter, which contains the revolutionary provision for the appointment of the twenty-five Executors, had been added as an after-thought. Chapters 45 and 46 are connected by a rude bracket, and a clause is added in the same hand as the rest, but more rapidly, modifying the provisions of both in the King’s favour. This, at least, is clearly an after-thought.[303]

Footnote 303:

_Cf. supra_, p. 47, and Blackstone, _Great Charter_, xvii.

IV. _The so-called “unknown Charter of Liberties.”_ Among the French archives there is preserved the copy of what purports to be a charter granted by King John, but irregular in its form. This document is preserved among the _Archives du Royaume_ in the _Section Historique_ and numbered J. 655.[304] A copy of this copy was discovered at the Record Office in London by Mr. J. Horace Round in 1893, previous to which date it seems to have been practically unknown to English historians, although it had been printed by a French writer thirty years earlier.[305] Mr. Round communicated his discovery of this “unknown charter of liberties” to the _English Historical Review_, in the pages of which there ensued a discussion as to its nature and validity, inaugurated by him. Three theories were suggested: (_a_) Mr. Round maintained that the document was a copy, in a mangled form perhaps, of a charter actually granted in the year 1213 by King John to the northern barons, containing concessions which they had agreed to accept in satisfaction of their claims.[306] (_b_) Mr. Prothero preferred to view it, not as an actually executed charter, given and accepted in settlement of the various claims in dispute, but rather as an abortive proposal made by the King early in 1215 and rejected by the barons.[307] (_c_) Mr. Hubert Hall dismissed the document as a forgery, and described it as "a coronation charter attributed to John by a French scribe in the second decade of the thirteenth century"—probably between November, 1216, and March, 1217, when King Philip desired to prove that John had committed perjury by breaking his promises, and had thereby forfeited his right to the Crown of England.[308]

Footnote 304:

See the account given by Mr. Hubert Hall, _English Historical Review_, IX. 326.

Footnote 305:

Alexandre Teulet, _Layettes du Trésor_, I. p. 423 (1863).

Footnote 306:

_Engl. Hist. Rev._, VIII. 288-294.

Footnote 307:

_Ibid._, IX. 117-121.

Footnote 308:

_Ibid._, IX. 326-335.

Mr. Hall describes the method of procedure adopted by the compiler of this supposed forgery. Placing in front of him copies of Henry I.’s Charter of Liberties and of Henry III.’s charters issued in 1216-17, he proceeded to select from these sources whatever suited his purpose, and thereafter “either by design or carelessness, or ignorance of English forms, he altered the wording of both his originals so as to produce the effect of a paraphrase interspersed with archaisms.” This extremely ingenious theory is not entirely convincing. Not to insist on the number of unproved inferences on which it is based, it seems to have one grave defect—it ignores the absurdity of attempting to obtain credence for such a clumsy composition, especially when it was well known that John had never granted a coronation charter at all. Even if a skilful forger could have utilized the document as the basis for a completed charter, this would still have required the impress of John’s great seal to give it validity. Such an imposture could not be seriously intended to impose on any one.

A fourth theory may be suggested very tentatively, namely, that the document in question is a copy of the actual schedule drawn up by the barons previous to 27th April, 1215. That such a schedule existed we know from the express declaration of Roger of Wendover,[309] who informs us that it was sent to the King with the demand that his seal should be forthwith placed to it, under threat of civil war. From this, it is safe to infer that the schedule, as it left the barons’ hands, was ready for execution; but lack of experience in drawing up Crown charters would prevent them from producing an entirely regular instrument. They would assuredly take as their model the charter of Henry I., which had helped to give definiteness of aim to all their efforts. It would be necessary, however, to bring this up to date, by additions which we might _a priori_ expect to resemble the provisions afterwards adopted with more elaboration in the agreement made at Runnymede. This schedule, then, rapidly thrown together, would be likely to contain many of the characteristics actually discovered by Mr. Hall in the document under discussion. Such an identification of the “unknown Charter of Liberties” with the schedule of 27th April, 1215, would explain all the features emphasized by Mr. Hall—the archaisms, the erroneous style, and the employment, first of the third person singular, and then of the first person singular, instead of using throughout the first person plural invariably used by John. It would also explain why the first half of the parchment on which the “unknown charter” is written, contains a copy of Henry I.’s charter, and why the two possess so many features in common.

Footnote 309:

R. Wendover, III. 298, and _cf. supra_, p. 40.

It would clearly be inadvisable to found any conclusions upon the terms of a document, the nature and authenticity of which form the subject of so many rival theories; but even if further investigation proves it to be a forgery, a forgery of contemporary date may throw light on otherwise obscure passages in genuine charters. One or two instances of this will be found in the sequel.

II. Previous Editions and Commentaries.

Every general history of England and almost every book which has ever appeared on English law has had something to say by way of commentary on Magna Carta. It is perhaps for this very reason that exceedingly few treatises have been devoted exclusively to its elucidation. While edition after edition of the text of the Charter, or of its re-issues, have appeared, few of these have been accompanied by explanations however brief. The paucity of attempts to explain the meaning of the Charter is almost more remarkable than the frequency with which the text has been reproduced. Magna Carta is a document often printed, but seldom explained.

I. _Printed Editions of the Text of Magna Carta._ Previous to 1759 even the best informed writers on English history laboured under much confusion in regard to the various charters of liberties. Few of them seem to have been aware that fundamental differences existed between the original charter granted by John and the re-issues of Henry III. Much of the blame for this confusion must be borne by Roger of Wendover, who, in his account of the transactions at Runnymede, incorporated, in place of John’s Charter, the text of the two charters granted by Henry.[310]

Footnote 310:

R. Wendover, III. 302-318.

The early historians were content to rely either on this version or on that contained in the _Inspeximus_ of Edward I. Thus, in all early printed collections of statutes, the text which professes to represent the original Charter follows in reality the words of Henry’s third re-issue. The very earliest printed edition of Magna Carta seems to have been that published on 9th October, 1499, by Richard Pynson, the King’s printer,[311] and a contemporary of Wynkyn de Worde. This was not, of course, John’s Charter, but followed Edward’s _Inspeximus_ of Henry’s Charter of 1225.

Footnote 311:

This date is given by Bémont, _Chartes_, lxxi., but Robert Watt in his _Bibliotheca Britannica_, Thomson, _Magna Charta_, 450, and Lowndes, _Bibliographer’s Manual_, 1449, all give the date of the earliest edition as 1514. Bémont, lxxi., and Thomson, 450–460, Watt, and Lowndes furnish details of the various editions of Pynson, Redman, Berthelet, Tottel, Marshe, and Wight, from 1499 to 1618. All of these are now superseded by the _Statutes of the Realm_, published by the Record Commission in 1810.

Since the middle of the eighteenth century, many editions of the text of John’s Great Charter have been published, either alone or along with the text of the various re-issues of the reign of Henry III.; but it seems unnecessary to mention more than four of these.

(1) In 1759 appeared Sir William Blackstone’s scholarly work entitled _The Great Charter and The Charter of the Forest_, containing accurate texts of all the important issues of the Charters of Liberties carefully prepared from the original manuscripts so far as these were known to him.[312]

Footnote 312:

The substance of this admirable edition, now unhappily scarce, has been reproduced in the same author’s _Tracts_ (1762).

(2) In some respects the Record Commissioners have improved even on Blackstone’s work in their edition of the _Statutes of the Realm_, published in 1810. A special section of the volume is devoted to Charters of Liberties, where not only the grants of John and Henry III., but also the charters which led up to them, and their subsequent confirmations, have received exhaustive treatment.

(3) A carefully revised text, _Magna Carta regis Johannis_, was published by Dr. Stubbs in 1868; and the various charters are also to be found, arranged in chronological order, in his well-known volume, first published in 1870, entitled _Select Charters and other illustrations of_ _English Constitutional History_, a convenient collection easily accessible to all students of law and history.

(4) For the continuous study of the sequence of charters, the best book of reference is _Chartes de Libertés Anglaises_ by M. Charles Bémont published in 1892, in the pages of which the various editions of John’s and Henry’s charters will be found in a form convenient for comparison with each other, and with previous and succeeding documents.

II. _Commentaries and Treatises._ It is doubtful whether any good purpose would be served by the preparation of a list of all the books which contain casual references to Magna Carta or to its provisions; and it is clear that the task would be an extremely burdensome one. There is no difficulty, however, in naming the few treatises of outstanding merit which have been exclusively or mainly devoted to the exposition of the Great Charter. Of these only nine require special mention.

(1) The mysterious medieval lawbook known as the _Mirror of Justices_ contains a chapter upon Magna Carta which has some claims to rank as a commentary, although it represents the opinions of a political pamphleteer rather than those of an unbiassed judge. The date of this treatise is still the subject of dispute. It has been usual to place it not earlier than the years 1307-27, mainly because it makes mention of “Edward II.” Prof. Maitland, however, dates it earlier, maintaining on general grounds that it was “written very soon after 1285, and probably before 1290.”[313] He explains the reference to “Edward II.” as applying to the monarch now generally known in England as Edward I., but sometimes in his own reign known as Edward II., to distinguish him from an earlier Edward, still enshrined in the popular imagination, namely, Edward Confessor. Mr. Maitland is not disposed to treat this work of an unknown author too seriously, and warns students against “his ignorance, political bias, and deliberate lies.”[314]

Footnote 313:

See _The Mirror of Justices_ (edited for the Selden Society by Prof. Maitland), _Introd._, xxiii. to xxiv.

Footnote 314:

_Ibid._, xxxvii. _Cf._ xlviii.

(2) Dismissing the _Mirror_, then, as a dangerous and possibly disingenuous guide, the earliest serious commentary known to exist is that of Sir Edward Coke, formerly Lord Chief Justice. This elaborate treatise, forming the second of Coke’s four _Institutes_, was published in 1642 under direction of the Long Parliament, the House of Commons having given the order on 12th May, 1641.[315]

Footnote 315:

See _Dictionary of National Biography_, XI. 243.

Although this commentary, like everything written by Coke, was long accepted as a work of great value, its method is in reality entirely uncritical and unhistorical. The great lawyer reads into Magna Carta the entire body of the common law of the seventeenth century of which he was admittedly a master. He seems almost unconscious of the great changes accomplished by the experience and vicissitudes of the four eventful centuries which had elapsed since the Charter had been originally granted. The various clauses of Magna Carta are thus merely occasions for expounding the law as it stood, not at the beginning of the thirteenth century, but in his own day. In the skilful hands of Sir Edward, the Great Charter is made to attack the abuses of James or Charles, rather than those of John or Henry, which its framers had in view. In expounding the _judicium parium_, for example, he carefully explains many minute details of procedure before the Court of the Lord High Steward, and describes elaborately the nature of the warrants to be issued prior to the arrest of any one by the Crown; while, in the clause of Henry’s Charter which secures an open door to foreign merchants in England “unless publicly prohibited,” he discovers a declaration that Parliament shall have the sole power to issue such prohibitions, forgetful that the regulation of trade was an exclusive prerogative of the Crown with which Parliament had no right to interfere for many centuries subsequent to the reign of Henry III.

(3) In 1680 Mr. Edward Cooke, barrister, published a small volume entitled _Magna Charta made in the ninth year of King Henry III. and confirmed by King Edward I. in the twenty-eighth year of his reign_. This contained a translation of Henry’s Magna Carta with short explanatory notes founded mainly on the commentary of Sir Edward Coke. In his Preface, Mr. Cooke declared that his object was to make the Great Charter more accessible to the public at large, since, as he said, “I am confident, scarce one of a hundred of the common people, know what it is.”

(4) Sir William Blackstone’s _Introduction_ to his edition of the charters, published in 1759, as already mentioned, contains valuable information as to the documents he edits; but he explicitly disclaims all intention of writing a Commentary. He is careful to state “that it is not in his present intention, nor (he fears) within the reach of his abilities, to give a full and explanatory comment on the matters contained in these charters.”[316]

Footnote 316:

Introduction, p. ii.

(5) The Hon. Daines Barrington published in 1766 his _Observations upon the Statutes from Magna Charta to 21 James I._ This book contains some notes on the Charter also founded chiefly upon Coke’s _Second Institute_; his original contributions are not of outstanding value.

(6) In 1772 Prof. Francis Stoughton Sullivan gave to the public his course of lectures previously delivered in the University of Dublin under the title _An Historical Treatise on the Feudal Law, with a Commentary on Magna Charta_. The author’s own words give a sufficiently accurate conception of its scope and value: “I shall therefore proceed briefly to speak to _Magna Charta_, and in so doing shall omit almost all that relates to the feudal tenures, which makes the greatest part of it, and confine myself to that which is now law.”[317]

Footnote 317:

See p. 375 of the work cited.

(7) Mr. John Reeves’ invaluable _History of English Law_, the first edition of which appeared in 1783-84, marked the commencement of a new epoch in the scientific study of the genesis of English law. Treating incidentally of Magna Carta, he shows wonderful insight into the real purport of many of its provisions, but the state of historical knowledge when he wrote rendered many serious errors inevitable.

(8) In 1829, Mr. Richard Thomson published an elaborate edition of the charters combined with a commentary which contains much useful information, but makes no serious attempt to supplement the unhistorical explanations of Sir Edward Coke by the results of more recent investigations in the provinces of law and history. His work is a storehouse of information which must, however, be used with caution.

(9) In many respects, the most valuable contribution yet made to the elucidation of the Great Charter is that contained in M. Charles Bémont’s preface to his _Chartes des Libertés Anglaises_, published in 1892. Although he has subjected himself to the severe restraints imposed by the slender size of his volume and by a rigid desire to state only facts of an undisputed nature, leaving theories strictly alone; he has, nevertheless, done much to help forward the study of the charters. In particular he has performed an important service by insisting upon the close mutual connection between the various Charters of Liberties, from that of Henry I. down to the confirmations of Edward I., and of subsequent kings. It is doubtful, however, whether by this very insistence upon the gradual process of development which may be traced in this long series, he does not lay himself open to the misconception that he takes too narrow a view of the scope and relations of the Charter. Magna Carta’s points of contact with the past and future history of English liberties and English laws and institutions must not be narrowed down to those occurring in one straight line. Its antecedents must not be looked for exclusively among documents couched in the form of charters, nor its results merely in their subsequent confirmations. It is impossible to understand it aright, except in close relation to all the varied aspects of the national life and the national development. Every Act appearing on the Statute Rolls is, in a sense, an Act amending Magna Carta; while such enactments as the Statute of Marlborough and the Statute of Westminster I. have as intimate a connection with John’s Great Charter as the _Confirmatio Cartarum_ or the _Articuli super Cartas_ have. This is a truth which M. Bémont undoubtedly recognizes, though the scheme of his book led him rather to emphasize another and, at first sight, contradictory aspect of his subject. His object was not to explain the numerous ways in which the Charters of Liberties are entwined with the whole of English history, but merely to furnish a basis for the accurate study of one of their most important features. His book is indispensable, but is not intended to form, in any sense, a commentary on Magna Carta.

It would thus appear that only two serious attempts have been made to produce treatises forming, explicitly and exclusively, commentaries on the Great Charter, namely the _Second Institute_ of Coke and the laborious and useful work of Mr. Richard Thomson. Since Mr. Thomson’s _Magna Charta_ appeared, three-quarters of a century have passed, marking an enormous advance in historical and legal science; yet the results of modern research, so capable of throwing light on the subject-matter of the Great Charter, have never been systematically brought to bear upon it. Dr. Stubbs, from whom such a work would have been especially welcome, contented himself with giving a paraphrase or abstract of the Charter, rendering into English equivalents as literally as possible the actual words of his Latin text—a cautious course, which cannot lead his disciples astray, but leaves them to the guidance of their own ignorance rather than of his knowledge. The reason given by Dr. Stubbs for keeping silence is rather the excess than the absence of information. “The whole of the constitutional history of England,” he tells us, “is little more than a commentary on Magna Carta.”[318] It is for this reason, presumably, that he refrains from all explanations and confines himself to an abstract of its main provisions. While thus many invaluable hints may be obtained from the pages of the three volumes of his history, and from his other works, Dr. Stubbs has not in any of his published writings contributed anything of the nature of a direct commentary upon John’s Great Charter. In this policy, he has been followed by the members of the great modern school of English historians of which he is the founder.[319]

Footnote 318:

See _Const. Hist._, I. 572, and cf. _Select Charters_, 296.

Footnote 319:

One of the most brilliant members of that school, Mr. Prothero, whose power of rendering difficult subjects both lucid and interesting would specially have qualified him for the task of explaining Magna Carta, declines the task partly upon the ground that it would be impossible "to throw any new light on a subject exhausted by the ablest writers."—_S. de Montfort_, p. 14.

Many valuable hints may be obtained from other writers such as Dr. Gneist, Sir Edward Creasy, Mr. Taswell Langmead, Dr. Hannis Taylor, Miss Norgate, and Sir James Ramsay,[320] but their efforts to explain the meaning of the Great Charter take the form of disconnected notes, rather than of exhaustive commentaries.[321]

Footnote 320:

The works of these and other authors are mentioned in the Appendix.

Footnote 321:

It is unnecessary to do more than mention _A Historical Treatise on Magna Charta_ by Mr. Boyd C. Barrington, of the Philadelphia Bar (1899), of which the author says (p. ii.): “No claim is made for originality, but solely for research, which has been exhaustive in every line I can pursue.” It is dismissed by his distinguished fellow-countryman, Dr. Gross (_Sources and Literature of English History_, p. 348), as “of little value.”

TEXT, TRANSLATION, AND COMMENTARY.

MAGNA CARTA.

PREAMBLE.[322]

Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariis, vicecomitibus, prepositis, ministris et omnibus ballivis et fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute anime nostre et omnium antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte Ecclesie, et emendacionem regni nostri, per consilium venerabilium patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris, fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie, Willelmi comitis Warennie, Willelmi comitis Arundellie, Alani de Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla, Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii Hugonis et aliorum fidelium nostrorum.

Footnote 322:

The division of Magna Carta into a preamble and sixty-three chapters is a modern device, for convenience of reference, for which there is no warrant in the Charter itself. Cf. _supra_, 200. No title or heading precedes the substance of the deed in any one of the four known originals, but on the back of the Lincoln one (cf. _supra_, 197) these words are endorsed;—“_Concordia inter Regem Johannem et Barones pro concessione libertatum ecclesie et regni Anglie_.” The form of the document is discussed _supra_, 123-9. The text is taken from that issued by the Trustees of the British Museum founded on the Cottonian version No. 2. Cf. _supra_, 196.

John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greeting. Know that, looking to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honour of God and the advancement of holy Church, and for the reform of our realm, [we have granted as underwritten][323] by advice of our venerable fathers, Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman Church, Henry archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry, Benedict of Rochester, bishops; of master Pandulf, subdeacon and member of the household of our lord the Pope, of brother Aymeric (master of the Knights of the Temple in England), and of the illustrious men,[324] William Marshall, earl of Pembroke, William, earl of Salisbury, William, earl Warenne, William, earl of Arundel, Alan of Galloway, (constable of Scotland), Waren Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip of Albini, Robert of Ropesle, John Marshall, John Fitz Hugh, and others, our liegemen.

Footnote 323:

The sentence is concluded in chapter one (see _infra_)—the usual division, here followed, being a purely arbitrary one.

Footnote 324:

The phrase “_nobiles viri_” was not used here in any technical sense; the modern conception of a distinct class of “noblemen” did not take shape until long after 1215. Cf. what is said of “peerage” under cc. 14 and 39.

The Great Charter of John opens, in the form common to all royal charters of the period, with a greeting from the sovereign to his magnates, his officials, and his faithful subjects, and announces, in the pious legal formula used by impious and pious kings alike, that he had made certain grants by the advice of those counsellors whom he names. Three features of this preamble call for comment.

I. _The King’s Title._ Some points of interest are suggested by the form of the royal style adopted by John, which is connected by an unbroken thread of development with that of William I. on the one hand, and of His Majesty, Edward VII., on the other. John’s assumption of the royal plural “_Sciatis Nos_” reads, in the light of subsequent history, as a tribute to his arrogance rather than to his greatness, when compared with the humbler first person singular consistently used by his more distinguished father. In this particular, however, Richard, not John, had been the innovator on the usage of Henry II.[325] For a further alteration in the royal style John was alone responsible. To the titles borne by his father and brother, John invariably added that of “lord of Ireland,” a reminiscence of his youth. When the wide territories of Henry II., had been distributed among his elder sons, the young John (hence known as “John Lackland”) was left without a heritage, until his father bestowed on him the island of Ireland, recently appropriated; and this brought with it the right to style himself “_dominus Hibernie_.” This title of his younger days was not unnaturally retained by him after he had outlived all his brothers and inherited their wide lands and honours.

Footnote 325:

Coke (_Second Institute_, pp. 1-2) is here in error; he makes John the innovator.

John began his reign in 1199 as ruler over the undivided possessions of the House of Anjou at their widest stretch, extending without a break, other than the waters of the Channel, from the Cheviots to the Pyrenees. These lands were held by John, as by his father, under a variety of titles and conditions. Anjou, the original home and fief of the hot-blooded Plantagenet race, still carried with it only the modest rank of count. In addition to this paternal title, Henry II. had, at an early age, become duke of Normandy in his mother’s right, and thereafter duke of Aquitaine by marriage with Eleanor, its heiress. These three great fiefs were held by Henry and his sons under the king of France as their lord paramount. Long before 1215, John’s bad fortune or incompetence had lost to him these wide continental dominions except the most distant of them all, his mother’s dowry of Aquitaine. His ancestral domains of Anjou and Normandy had been irretrievably lost, but he still retained their empty titles; and in this his son Henry III. followed him, grasping the shadow long after the substance had fled. Entries relating to Gascony frequently appear on the Rolls of Parliament of Edward I.; and the kings of England were styled dukes of Aquitaine, dukes of Guienne, or dukes of Gascony (the three descriptions being used indifferently) until Edward III. merged all these titles in a wider one, when he claimed the throne of France.

England alone, of John’s possessions, real and nominal, was held by the higher style of “_Rex_,” implying strictly sovereign rule, independent of any overlord, and retained by John in 1215 in spite of his recent acceptance of Innocent III. as feudal overlord. Of Ireland, John was still content to describe himself, as formerly, “lord,” not king. The exact meaning of the word “_Dominus_” in medieval charters, particularly in those of Stephen, has been made the subject of much learned controversy; which has not yet resulted in a consensus of opinion as to the technical meaning, if any, borne by the word.[326] “_Dominus_,” indeed, seems to have been loosely used wherever something of substance or of ceremonial was lacking from the full sovereignty implied in the more specific name of king. In this connection much stress was laid on the solemn sacrament of coronation, implying among other things formal consecration by the church.[327]

Footnote 326:

Various theories will be found in Round’s _Geoffrey de Mandeville_, 70; Dr. Rüssler’s _Matilde_, 291–4; and Ramsay’s _Foundations of England_, II. 403.

Footnote 327:

Cf. _supra_, p. 119.

John’s connection with England, then, is expressed in two simple words, “_Rex Anglie_,” no explanation being vouchsafed of how he had acquired this title. Such vindication, indeed, was not called for, as this was no coronation charter, John having already reigned for fifteen years without any serious rival—the claims of Arthur, the son of his elder brother Geoffrey, never having been taken seriously in England.[328] The simple words, “_Dei gratia rex Anglie_,” may be contrasted with the detailed titles set out in the coronation charters of Henry I. and Stephen respectively. Henry I. in 1100 had emphasized his relationship to preceding kings, describing himself as “_Filius Willelmi regis post obitum fratris sui Willelmi, Dei gracia rex Anglorum_”;[329] while Stephen in April, 1136, in his second and more deliberate charter, used an entirely different formula, “_Dei gracia assensu cleri et populi in regem Anglie electus, et a Willelmo Cantuarensi archiepiscopo et sancte Romane ecclesie legato consecratus, et ab Innocentio sancte Romane sedis pontifice postmodum confirmatus_,”[330] the laboured nature of which betrays the consciousness of weakness.

Footnote 328:

Geoffrey’s daughter Eleanor was in 1215, a prisoner in Corfe Castle. See _infra_, c. 59.

Footnote 329:

See Appendix.

Footnote 330:

See Appendix.

Thus Henry I. and Stephen each laid stress on the strong points of his title and ignored its defects. These two claims of kingship express, in a crude form, two rival theories of the title to the English Crown—(1) hereditary succession, and (2) election. Neither of these is an accurate reflection of the full theory and practice of the twelfth century, which blended both principles in proportions not easy to define with accuracy. Professor Freeman has pushed to excess the supposed right of the Witenagemot to elect the king, and has transferred wholesale to the Norman _Curia_ (which, in some respects, took its place) all the powers enjoyed by its forerunner. A recent German writer, Dr. Oskar Rössler,[331] has gone equally far in the opposite direction, flatly denying that the Normans ever admitted the elective element at all. The theory now usually held is a mean between these extremes, namely that the Norman _Curia_ (or the chief magnates who usually composed it) had a limited right of selecting among the sons, brothers, or near relations of the last king, the individual best suited to succeed him. Such a right, never authoritatively enunciated, gradually sank to an empty formality. Its place was taken, to some extent, by the successful assertion by the spiritual power (usually represented by the archbishop of Canterbury), of a claim to give or withhold the consecrating oil which accompanied the church’s blessing. Without this no _dominus_ could be recognized as _rex_. On this theory the descriptions of their own titles given by Henry I. and Stephen were alike incomplete: each ignored the facts which did not suit him. John, on the contrary, secure in possession, condescends on no particulars, but contents himself with the terse assertion of the fact of his kingship: “_Johannes, dei gratia, Rex Anglie_.”

Footnote 331:

_Matilde_, _passim_.

II. _The Names of the Consenting Nobles._ It was natural that the Charter should place formally on record the assent of those counsellors who attended John when he made terms with his enemies, of those magnates who remained in at least nominal allegiance, and were therefore capable of acting as the mediators by whose good offices peace was for a time restored.[332] The leading men in England during this crisis may be arranged in three groups: (1) the leaders of the great host openly opposed to John at Runnymede; (2) the agents of John’s oppressions, extreme men, mostly aliens, many of whom were in command of royal castles or of mercenary levies ready to take the field; and (3) moderate men, mostly churchmen or John’s ministers or relations, who, whatever their sympathies might be, remained in allegiance to the king and helped to arrange terms of peace—a comparatively small band, as the paucity of names recited in Magna Carta testifies.[333] The men, here made consenters to John’s grant of Magna Carta, are again referred to, though not by name, in chapter 63, in the character of witnesses.

Footnote 332:

Dr. Stubbs, _Const. Hist._, I. 582, gives the motive of thus naming them as “the hope of binding the persons whom it includes to the continued support of the hard-won liberties.” Those named were all moderate men. M. Paris (_Chron. Maj._ II., 589) describes them as “_quasi ex parte regis_,” while Ralph of Coggeshall (p. 172) narrates how “by the intervention of the Archbishop of Canterbury, with a few of his bishops and some barons, a kind of peace was made.” Cf. _Annals of Dunstable_, III. 43. The neutrality of the prelates is proved by other evidence. (_a_) C. 62 gave them authority to certify by letters testimonial the correctness of copies of the Charter. (_b_) The 25th of the Articles of the Barons left to their decision whether John should enjoy a crusader’s privileges; while c. 55 gave Langton a special place in determining what fines were unjust. (_c_) The Tower of London was placed in the custody of the archbishop as a neutral man whom both sides could trust. (_d_) Copies are preserved of two protests on different subjects by the prelates in favour of the king. See Appendix.

Footnote 333:

Cf. _supra_, 43–4, and for biographical information see authorities there cited.

III. _The Reasons of the Grant._ The preamble contains also a statement of what purport to be John’s reasons for conceding the Charter. These are quaintly paraphrased by Coke:[334] "Here be four notable causes of the making of this great charter rehearsed. 1. The honour of God. 2. For the health of the King’s soul. 3. For the exaltation of holy church, and fourthly, for the amendment of the Kingdom." The real reason must be sought in another direction, namely, in the army of the rebels; and John in after days did not scruple to plead consent given under threat of violence, as a reason for voiding his grant. The technical legal “consideration,” the _quid pro quo_ which John received as the price of this confirmation of their liberties was the renewal by his opponents of the homage and fealty which they had solemnly renounced. This “consideration” was not stated in the charter, but the fact was known to all.[335]

Footnote 334:

_Second Institute_, 1, n.

Footnote 335:

Cf. _supra_, 41.