Chapter 18 of Magna Carta accepted, apparently with the approval of all

classes, the principle that questions of church patronage (assizes of darrein presentment)[343] should be settled before the King’s Justices, a concession to the civil power inconsistent with the more extreme interpretations formerly put by churchmen on the phrase.[344]

Footnote 342:

Cf. _supra_, 120–1.

Footnote 343:

For explanation see _infra_, c. 18.

Footnote 344:

On the other hand c. 22, which lays down special rules for the amercement of beneficed clerks, to that extent confirmed class privileges of the clergy.

In later reigns the pretensions of the church to privileged treatment were gradually reduced to narrow bounds, and the process of compression was facilitated by that very elasticity on which the clergy had relied as being favourable to the expansion of their claims. It was the civil government which benefited in the end from the vagueness of the words in which Magna Carta declared _quod Anglicana ecclesia libera sit_.[345]

Footnote 345:

Mr. J. H. Round (_Geoffrey de Mandeville_, 3), speaking of Stephen’s “oath” to restore the church her “liberty,” describes this as “a phrase the meaning of which is well known.” If “well” known, it was known chiefly as something vague, something which baffled definition, because churchmen and laymen could never agree as to its contents, while it tended also to vary from reign to reign. Mr. Round attempts no definition. Sir James Ramsay (_Angevin Empire_, p. 475), writing of the phrase as used in John’s Charter, is less prudent. "It would relieve the clergy of all lay control, and of all liability to contribute to the needs of the State beyond the occasional scutages due from the higher clergy for their knights’ fees." This definition assuredly would not have satisfied Henry I., as a legitimate interpretation of the words as used by him in his Charter of Liberties.

(2) _Canonical election._ A separate charter to the national church had been granted on 21st November, 1214, and re-issued on 15th January, 1215.[346] Its tenor may be given in three words, “freedom of election.” In all cathedral and conventual churches and monasteries, the appointment of prelates was to be free from royal intervention for the future, provided always that licence to fill the vacancy had first been asked of the king. Now, _in words_, this was no new concession, but merely a confirmation of the Concordat arrived at long before between Henry I. and archbishop Anselm as a solution of the rival claims of Church and State in the election of bishops and abbots.[347] The essence of that arrangement had been to vest solely in the canons of the chapter of the vacant diocese the nominal right to appoint the new bishop, subject, however, to the actual election taking place in the royal court or chapel—so that the king, being present, might endeavour to prevent the appointment of any churchman he objected to. The result had not been what Anselm and the papal court expected; Henry I. and his successors strenuously used or abused the influence thus reserved to them: none but royal favourites were ever appointed, and the nominally free canonical election became a sham. Churchmen had long desired to remedy this: Langton saw his opportunity, and on 21st November, 1214, secured from King John, so far as mere words could secure anything, that the right of election by the canons of the chapter should henceforth be transformed from a pretence into a reality. The bishops present at Runnymede used their influence to have a distinct confirmation of this recent concession inserted in the very forefront of Magna Carta.

Footnote 346:

Cf. _supra_, p. 39. The text will be found in _Statutes of the Realm_, I. 5, and in _New Rymer_, I. 126-7. It was confirmed by Innocent on 30th March, 1215. See Potthast, _Regesta pontificum romanorum_, No. 4963.

Footnote 347:

Cf. _supra_, p. 22.

Their forethought was insufficient permanently to prevent royal influence from bending canonical election to its will. Henry III., indeed, in his reissues was made to repeat the phrase _quod Anglicana ecclesia libera sit_, but omitted all reference alike to canonical election and to the charters of 21st November, 1214, and 15th January, 1215. Later in his reign, he took advantage of this, with the Pope’s connivance or support, to reduce again the rights of cathedral chapters in the appointment of bishops to the sinecure they had been before.

It is true that Henry III. was prone, alike by nature and from policy, to lean on the papal arm, and that the _Curia_ at Rome rather than the _Curia Regis_ for a time dominated the appointment to vacant sees. Henry and Innocent IV. indeed formed a tacit alliance for dividing all fat livings among their respective creatures, king’s men or pope’s men, who had little interest in England or its welfare. Edward I., impatient of foreign dictation as he was, had to submit to a partial continuance of “provisions” for hangers-on of the papacy in his insular domains; but the national church had little to gain. The canons elected the nominee of king or pope, as each was, for the moment, in the ascendant.[348]

Footnote 348:

Cf _supra_, p. 167.

An interesting, if purely academic, question might be raised as to how far the rights guaranteed by Magna Carta to the English church were meant to imply freedom from papal as well as from royal interference. It is clear that the movement which culminated in the charter of 21st November, 1214, originated in England, not at Rome; and apparently Nicholas, the papal legate at that date, opposed the endeavours of Stephen Langton to obtain it. The archbishop indeed looked upon the legate as the chief obstacle to the reform by the king of the grievances of the national church.[349] In spite of Magna Carta, then, the independence of the national church retrograded, rather than advanced, during the long alliance between Henry III. and the successive occupants of the papal throne.[350]

Footnote 349:

See Miss Norgate, _John Lackland_, p. 208, and authorities there cited.

Footnote 350:

Cf. Prothero, _Simon de Montfort_, p. 152. “The English church was indeed less independent of the king in 1258 than in 1215, and far less independent of the Pope than in the days of Becket.”

II. _Civil and Political Rights._ After providing thus briefly for the church, chapter one proceeds to give equal prominence, but at greater length, to the grant or confirmation of secular customs and liberties. This takes here the form of a general enacting clause, leaving details to be specified in the remaining sixty-two chapters of the Charter. Some of the more important points involved have already been discussed in the Historical Introduction—for example, the feudal form of the grant, better suited, according to modern ideas, to the conveyance of a specific piece of land, than to the securing of the political and civil liberties of a mighty nation; and the vexed question as to what classes of Englishmen were intended, under the description of “freemen,” to participate in these rights.[351]

Footnote 351:

See _supra_, pp. 128-9 and 141-2. For the meaning of “freeman” and Coke’s inclusion of villeins under that term for some purposes but not for others, see _infra_, cc. 20 and 39.

Another interesting point, though of minor importance, calls for separate treatment. John does not state that his grants of civil and political rights had been made spontaneously. Whether deliberately or not, there is here a marked distinction between the phraseology applied to secular and to ecclesiastical rights respectively. While the concessions to churchmen are said to have been granted “_mera et spontanea voluntate_,” no such statement is made about the concessions to the freemen. John may have favoured this omission as strengthening his contention that the Great Charter had been sealed by him under compulsion. In the third re-issue of Henry III. (1225) this defect was remedied—the words “_spontanea et bona voluntate nostra_” being used in its preamble.[352] Some importance seems to have been attributed to this addition, which formed the essence of a concession bought by the surrender of one-fifteenth of the moveable property of all estates of the realm.

Footnote 352:

Cf. _supra_, p. 181.