CHAPTER ONE.

In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas; et ita volumus observari; quod apparet ex eo quod libertatem electionum, que maxima et magis necessaria reputatur ecclesie Anglicane, mera et spontanea voluntate, ante discordiam inter nos et barones nostros motam, concessimus et carta nostra confirmavimus, et eam obtinuimus a domino papa Innocencio tercio confirmari; quam et nos observabimus et ab heredibus nostris in perpetuum bona fide volumus observari.[336] Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et heredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas eis et heredibus suis, de nobis et heredibus nostris.

Footnote 336:

Some editions of the Charter place here the division between c. 1 and c. 2.

In the first place we have granted to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III., before the quarrel arose between us and our barons, and this we will observe, and our will is that it be observed in good faith by our heirs for ever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.

This first of the sixty-three chapters of Magna Carta here places side by side, bracketed equal as it were, (_a_) a general confirmation of the privileges of the English national church, and (_b_) a declaration that the various civil rights to be afterwards specified in detail were granted “to all freemen” of the kingdom and to their heirs for ever. The manner of this juxtaposition of the church’s rights with the lay rights of freemen, suggests an intention to make it clear that neither group was to be treated as of more importance than the other. If the civil and political rights of the nation at large occupy the bulk of the Charter, and are defined in their minutest details, the church’s rights, of which no mention whatever had been made in the Articles of the Barons, receive here a prior place.[337] A twofold division thus suggests itself.

Footnote 337:

Cf. _supra_, p. 50.

I. _The rights of the National Church._ A general promise that the English church should be free was accompanied by a special confirmation of the separate charter recently granted guaranteeing freedom of canonical election. (1) _Quod Anglicana ecclesia libera sit._ This emphatic, if vague declaration, which has no counterpart in the Articles of the Barons, is repeated twice in Magna Carta, each time in a prominent position, at the beginning and the end respectively. If the work of the barons showed no special tenderness for churchmen’s privileges, Stephen Langton and his bishops were careful to have that defect remedied in the formal document by which John expressed his final consent. In extorting this promise of a “free” English church, the prelates seem to have been satisfied that they need ask for nothing more; the other particulars in which the Charter differs from its draft show no trace of clerical bias. The phrase used, indeed, was deplorably vague and elastic; it scarcely needed stretching to cover the widest encroachments of clerical arrogance. Yet the formula was by no means a new one; Henry I. and Stephen had successively confirmed the claim of holy church to its freedom.[338]

Footnote 338:

See these charters in Appendix.

Henry II. was careful to avoid making any such promises: his whole reign was an effort, not unsuccessful in spite of the terrible disadvantage at which he was placed by the murder of Becket, to deprive the church of what her leaders considered her legitimate “freedom.” John in 1215, however, receded from the ground occupied by his father, confirming by the Great Charter the promise given by the weakest of his Norman predecessors, in a phrase repeated in all subsequent confirmations.

It by no means follows that “freedom of the church,” as promised by Stephen, meant exactly the same thing as “freedom of the church” promised by John and his successors.[339] The value to be attached to such assurances varied in inverse ratio to the strength of the kings who made them, and this is well illustrated by a comparison of the charters of Henry I., Stephen, and John. Henry qualifies the phrase by words which illustrate if they do not limit its application. God’s holy church was to be free “_so that_ I shall neither sell nor let to farm, nor on the death of archbishop, bishop, or abbot, accept anything from the demesne of the church or from its tenants, until his successor has entered into possession.”[340] This suggests a somewhat narrow interpretation of the church’s freedom—exemption mainly from the iniquities of Rufus. Stephen’s charter, on the contrary, explains or supplements the same phrase by definite declarations that the bishops should have sole jurisdiction over churchmen and their goods, and that all rights of wardship over church lands were renounced, thus making it a “large and dangerous promise.”[341]

Footnote 339:

It is perhaps worthy of note that while the charters of Henry I. and Stephen spoke only of “holy church,” John speaks of the “English church.” This change suggests a growth of patriotism among the prelates, led by Stephen Langton.

Footnote 340:

Cf. _supra_, 117.

Footnote 341:

Cf. Pollock and Maitland, I. 74.

“Freedom of the church” had thus come in 1136 to include “benefit of clergy” in a specially sweeping form, and much besides.[342] It is easy to understand why churchmen cherished an elastic phrase which, wide as were the privileges it already covered, might readily be stretched wider. Laymen, on the contrary, contended for a more restrictive meaning; and the Constitutions of Clarendon must be viewed primarily as an attempt to arrive at definite conclusions on disputed points of interpretation. Henry II. substantially held his ground, in spite of his nominal surrender after Becket’s murder. Thanks to his firmness, "the church’s freedom" shrank to more reasonable proportions, so that the well-known formula, when repeated by John, was emptied of much of the content found in it by Stephen’s bishops. If it still implied “benefit of clergy” that phrase was now read in a more restricted sense, while wardship over vacant sees was expressly reserved to the Crown by John.