Chapter FIFTY-NINE

Nos faciemus Alexandro regi Scottorum de sororibus suis, et obsidibus reddendis, et libertatibus suis, et jure suo, secundum formam in qua faciemus aliis baronibus nostris Anglie, nisi aliter esse debeat per cartas quas habemus de Willelmo patre ipsius, quondam rege Scottorum; et hoc erit per judicium parium suorum in curia nostra.

We will do toward Alexander, King of Scots, concerning the return of
his sisters and his hostages, and concerning his franchises, and his
right, in the same manner as we shall do towards our other barons of
England, unless it ought to be otherwise according to the charters
which we hold from William his father, formerly King of Scots; and
this shall be according to the judgment of his peers in our court.

A heterogeneous body of forces was drawn into temporary union by common hatred of John. The barons welcomed allies whether from Wales or from Scotland; if the three preceding chapters were a bid for Llywelyn’s support, this one was dictated by a desire to conciliate Alexander. John was forced to promise to restore to the king of Scots his sisters and other hostages, together with his franchises and his “right.” This last word covered Alexander’s claim to independence and also whatever title he might prove good to various English fiefs which he claimed to hold under the English Crown.

Opinions have been, and still are, sharply divided as to whether, or in what degree, Scotland was subject to feudal overlordship. Of one fact there can be no doubt; David I. and his successors, kings of Scotland, had been wont to do fealty and homage to the kings of England; but this fact has received widely different interpretations. Such homage, it is argued, was performed in respect of certain English baronies which happened to belong by hereditary right to the kings of Scotland, namely, the earldom of Huntingdon, the isolated position of which enabled the English Crown without danger to admit the claim, and the counties of Northumberland, Cumberland, and Westmoreland, the proximity of which to the border rendered their possession by a Scottish prince a source of weakness to England.[1045] The terms in which the oath of homage was taken did not indicate for what fiefs it was sworn—whether for the English earldoms alone, or for the whole country north of Tweed as well.

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Footnote 1045:

See Stubbs, _Const. Hist._, I. 596.

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The position of the kings of Scots remained ambiguous in this respect, until William the Lion was placed at a terrible disadvantage by his capture at Alnwick in 1174, after supporting the rebellion against Henry II. To gain his release he ratified the Treaty of Falaise on 8th December, of that year, by which he agreed in future to hold all his territories as fiefs of the English Crown. All his tenants in Scotland were to take a direct oath to Henry; while hostages were surrendered along with the castles of Berwick, Roxburgh, Jedburgh, Edinburgh, and Stirling.[1046]

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Footnote 1046:

See Ramsay, _Angevin Empire_, 183–4. In the spring of 1185, Henry
confirmed William’s claim to the Earldom of Huntingdon, and the Scots
king, prior to Christmas, 1186, transferred it to his brother David.
_Ibid._, 226, n.

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This notable achievement of Henry’s diplomacy was, like other portions of his life’s work, undone by his successor. Richard, preparing for his crusade of 1190, sold recklessly every right that would fetch a price: William bought back the independence of his ancient kingdom; but this restoration of the relations that had prevailed previous to 1174, involved a restoration of all the old ambiguities. When Richard died, William despatched ambassadors to England, pressing his claims upon the northern counties, promising to support John’s title in return for their admission, and adding threats.[1047]

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Footnote 1047:

See Miss Norgate, _John Lackland_, 66.

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John avoided committing himself to a definite answer until his position in England was assured; thereafter he commanded William to do homage unconditionally. The Scots king disregarded the first summons, but yielded to a second, taking the oath in public on the summit of the hill of Lincoln, on 21st November, 1200, “reserving always his own right.”[1048] The saving clause left everything vague as before.

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Footnote 1048:

See Stubbs, _Const. Hist._, I. 596, n., and Norgate, _John Lackland_,
73, 78. Cf. the words “_salvo jure suo_” with the “_et jure suo_” of
Magna Carta.

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In April, 1209, the king of Scots incurred John’s displeasure by sheltering bishops who had supported the policy of Rome in the matter of the interdict. William’s only son, Alexander, was demanded as a hostage, or alternatively three border castles must be delivered up. After a refusal, the old king gave in on 7th August, 1209.[1049] Alexander did homage on behalf of his father “for the aforesaid castles and other lands which he held,” and found sureties for the payment of 15,000 marks. William’s daughters, Margaret and Isabel (the two ladies referred to in Magna Carta) became the wards of John, who had the right to bestow them in marriage—stipulations which come suspiciously near an admission of feudal vassalage.[1050] There seems, however, to have been some understanding that one of them should wed John’s eldest son.[1051] Margaret and Isabel, though kept virtually as prisoners in Corfe Castle, Dorset, were yet honourably and kindly treated there. The Close Rolls of the reign contain several entries (which read strangely enough among the sterner memorials of John’s diplomacy) containing orders for supplying them with articles of comfort and luxury. Thus on 6th July, 1213, John, busy as he must have been with affairs of state, instructed the Mayor of Winchester to despatch in haste for the use of his niece Eleanor and of the two Scots princesses robes of dark green (tunics and super-tunics) with capes of cambric and fur of miniver, together with twenty-three yards of good linen cloth, with light shoes for summer wear, “and the Mayor is to come himself with all the above articles to Corfe, there to receive the money for the cost of the same.”[1052] Margaret and Isabel had no reason to complain of such treatment, whatever thoughts the Mayor of Winchester may have had of so liberal an interpretation of his civic duties.

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Footnote 1049:

_New Rymer_, I. 103, where “Northampton” is apparently a mistake for
“Norham.” See Ramsay, _Angevin Empire_, 421, n.

Footnote 1050:

Ramsay, _Ibid._, and authorities there cited.

Footnote 1051:

Ramsay, _Angevin Empire_, 421, and authorities.

Footnote 1052:

_Rot. Claus._, I. 144, and I. 157. This Eleanor was the sister of
Prince Arthur. The fortunes of war had in 1202 placed both of them in
John’s hands. Arthur disappeared—murdered it was supposed; Eleanor
remained a prisoner for life; the Scots princesses were virtually her
fellow-prisoners for a time in Corfe Castle.

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Meanwhile, events in Scotland had favoured English pretensions. In the year 1212, William, now in advanced age, although his son was still a stripling, was compelled by internal troubles to appeal for aid to John. Cuthred, a claimant for the Scottish throne as a descendant of Donald Bane MacWilliam, having acquired a considerable following in Scotland, endeavoured to dethrone King William; and his attempt seemed likely to succeed, when English succour was asked and paid for by a Treaty signed at Norham on 7th February, 1212. By this, William granted to John the right to marry the young Alexander, then fourteen years of age, “_sicut hominem suum ligium_,” to whomsoever he would, at any time within the next six years, but always "without disparagement"—a phrase already explained.[1053] William further pledged himself and his son to keep faith and allegiance to John’s son, Henry, “as their liege lord” against all mortals.[1054] The young Scottish prince thereafter journeyed southwards in the train of John, by whom he was knighted on the 4th of March at London. In June an English army entered Scotland; the pretender was defeated and killed. William had saved his Crown, but his independence was impaired. Scotland was gradually sinking into the position of a vassal state. This was recognized at Rome. On 28th October, 1213, Innocent III., among other healing measures consequent on John’s surrender of his kingdom, ordered the king of Scotland and his son to show fealty and devotion to John, in terms similar to those addressed to the English barons.[1055]

William the Lion died at Stirling on 4th December, 1214, and Alexander was crowned at Scone two days later,[1056] his peaceful succession being facilitated by the knowledge that he had the support of John. On 28th April, 1215, the English king, already deep in his quarrel with the barons, acknowledged receipt of Thomas Colville and other Scotsmen as hostages.[1057] Such was the position of affairs when John was brought to bay at Runnymede. The barons were willing to bid for the alliance of Alexander; yet it was unnecessary to bid high, since his unsatisfied claims on the northern counties predisposed him against the English king. The barons, therefore, did nothing calculated to endanger such hold as England had over the Scottish Crown. John promised to restore Alexander’s sisters and other hostages unconditionally, but used words which committed him on none of the disputed points.[1058] Franchises and “right” were to be restored only in so far as accorded with the terms of King William’s “charters” as interpreted by the judgment of the English barons in the court of the English king.[1059]

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Footnote 1053:

See _supra_, c. 6.

Footnote 1054:

_New Rymer_, I. 104. See also W. Coventry, II. 206.

Footnote 1055:

See _New Rymer_, I. 116.

Footnote 1056:

Ramsay, _Angevin Empire_, 477, n.

Footnote 1057:

See _Rot. Pat._, I. 134, and _New Rymer_, I. 120.

Footnote 1058:

Both ladies, however, remained prisoners after Henry III.’s accession.
Peter de Maulay, constable of Corfe Castle, was, in that king’s fifth
year, credited with sums expended on their behalf. _Rot. Claus._, I.
466; see also I. 483. Both found permanent homes in England—Margaret
as wife of Hubert de Burgh, Earl of Kent (mentioned in preamble of
Magna Carta); Isabel as wife of Roger Bigod, Earl of Norfolk (one of
the Charter’s executors). See Ramsay, _Angevin Empire_, 421, and
authorities there cited.

Footnote 1059:

This reference to charters was probably intended to cover (_a_) the
Treaty of Falaise, (_b_) the agreement of 7th August, 1209, and (_c_)
the writ of 7th February, 1212, with the other charters to which it
refers. It called itself a charter, and suggested others by the words
_hinc et inde_.

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The allusion to the Scottish king as one among “our other barons of England” need not be pressed against Alexander any more than similar expressions should be pressed against John, whose position as Duke of Normandy and Aquitaine in no way made England a fief of the French Crown. In questions affecting his feudal position in France, John’s peers were the dukes and counts of that country; and similarly those who had a right to sit in judgment as Alexander’s peers over his claims to English fiefs were the English earls and barons. Such a tribunal was not likely to give decisions favourable to Scots pretensions at the expense of England.[1060]

Alexander, though no party to the treaty at Runnymede, was willing to extract such benefit from it as he could. Accordingly, on 7th July, 1215, he despatched the Archbishop of St. Andrews and five laymen to John “concerning our business which we have against you to be transacted in your court.”[1061] Nothing came of this; and when the civil war began Alexander invaded England in order to push his claims. John swore his usual oath, "by God’s teeth," that he would “chase the little red-haired fox-cub from his hiding holes.”[1062] Neither Alexander’s participation in the war nor the subsequent efforts of diplomacy achieved settlement of the questions in dispute. None of the latent ambiguities had been finally removed when the relations between the two countries entered on a new phase as a consequence of the attempts at annexation made by Edward I., “the hammer of the Scots.”

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Footnote 1060:

No. 46 of the Articles of the Barons (as qualified by the clause in
the bracket) referred the question of Alexander’s “right” in reference
to his father’s charters to the judgment of Langton and his nominees,
for which Magna Carta substituted “judgment of his peers in our
court.”

Footnote 1061:

_New Rymer_, I. 135.

Footnote 1062:

Matthew Paris, _Chron. Maj._, II. 642: “_Sic fugabimus rubeam
vulpeculam de latibulis suis_.”

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CHAPTER SIXTY.

Omnes autem istas consuetudines predictas et libertates quas nos concessimus in regno nostro tenendas quantum ad nos pertinet erga nostros, omnes de regno nostro, tam clerici quam laici, observent quantum ad se pertinet erga suos.

Moreover, all the aforesaid customs and liberties, the observance of
which we have granted in our kingdom as far as pertains to us towards
our men, shall be observed by all of our kingdom, as well clergy as
laymen, as far as pertains to them towards their men.

It would have been as impolitic as it was obviously unfair for the barons, in their capacity of mesne lords, to inflict upon their own tenants—the men without whose support they would have been powerless at Runnymede—those very exactions which they compelled the king to abjure as against themselves. Accordingly, the benefit of the same “customs and liberties” conceded by John to his feudal tenants was—in a somewhat perfunctory manner it is true—extended also to the feudal tenants of all other magnates, whether cleric or lay. Although the reference to “customs and liberties” was quite general in its terms, it seems natural to infer that feudal grievances were chiefly, if not exclusively, intended, since the view of society indicated is feudal rather than national, and this is quite in keeping with many other clauses of the Charter.

These considerations suggest that too wide and liberal a view has sometimes been taken of the scope of this chapter. Coke treated it as affecting not merely freeholders, but the whole mass of the people, and as enunciating a doctrine of mutual responsibility between the king and his subjects. “This is the chief felicity of a kingdom, when good laws are reciprocally of prince and people (as is here undertaken) duly observed.”[1063] In this view he has had many followers, and the present chapter has received undue emphasis as supporting a democratic interpretation of Magna Carta.[1064] It has sometimes been referred to as “the only clause which affects the whole body of the people.”[1065] The better view is that its provisions were confined to freeholders.

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Footnote 1063:

_Second Institute_, 77.

Footnote 1064:

Cf. _supra_, 133–4.

Footnote 1065:

Thomson, _Magna Charta_, 269, and authorities there cited.

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Even authors who interpret the chapter in this restricted application are still prone to exaggerate its importance. Two opposite lines of comment, in favour respectively with historians of two different schools, seem equally in need of supplement. (1) This clause is sometimes regarded as springing directly from the barons’ own uncontrolled initiative. Dr. Stubbs takes this view, contrasting its substance with similar restraints imposed by Henry I. on the barons by his Charter of Liberties, and emphasizing as specially notable the fact that the present clause was “adopted by the lords themselves.”[1066] Such praise is unmerited; the barons had no option, since the omission of provisions to this effect would have been a glaring absurdity and a most imprudent act. (2) On the other hand, credit for the clause, equally unwarranted, has been sometimes bestowed on John. Dr. Robert Henry says that “this article, which was highly reasonable, was probably inserted at the desire of the king.”[1067]

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Footnote 1066:

_Const. Hist._, I. 570. Cf. _supra_, 139–140.

Footnote 1067:

_History of Great Britain_, VI. 74. (6th edition, 1823). See also S.
Henshall, _History of South Britain_, cited by Thomson, _Magna
Charta_, 268-9.

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The substance of this chapter appears in the reissues of 1217 and 1225; but its force is there greatly impaired by the addition of a new clause inconsistent with its spirit, reserving to archbishops, bishops, abbots, priors, templars, hospitallers, earls, barons, and all other persons as well ecclesiastical as secular, all the franchises and free customs they previously had.[1068] The chief object of this was presumably to make it clear that Magna Carta, while conferring benefits, took nothing away; but it would naturally be interpreted as a saving clause in favour of aristocrats in their relations with their dependants (“_erga suos_”) as well as with the Crown, thus modifying the clause which immediately preceded it.

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Footnote 1068:

See c. 46 of 1217.

Footnote 1069:

The words “_in perpetuum_” are written at the foot of one of the
Cottonian versions. See _supra_, 195, n.

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CHAPTER SIXTY-ONE.

Cum autem pro Deo, et ad emendacionem regni nostri, et ad melius sopiendam discordiam inter nos et barones nostros ortam, hec omnia predicta concesserimus, volentes ea integra et firma stabilitate in perpetuum[1069] gaudere, facimus et concedimus eis securitatem subscriptam; videlicet quod barones eligant viginti quinque barones de regno quos voluerint, qui debeant pro totis viribus suis observare, tenere, et facere observari, pacem et libertates quas eis concessimus, et hac presenti carta nostra confirmavimus, ita scilicet quod, si nos, vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris nostris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum pacis aut securitatis transgressi fuerimus, et delictum ostensum fuerit quatuor baronibus de predictis viginti quinque baronibus, illi quatuor barones accedant ad nos vel ad justiciarum nostrum, si fuerimus extra regnum, proponentes nobis excessum, petent ut excessum illum sine dilacione faciamus emendari. Et si nos excessum non emendaverimus, vel, si fuerimus extra regnum justiciarius noster non emendaverit, infra tempus quadraginta dierum computandum a tempore quo monstratum fuerit nobis vel justiciario nostro si extra regnum fuerimus, predicti quatuor barones referant causam illam ad residuos de viginti quinque baronibus, et illi viginti quinque barones cum communa tocius terre distringent et gravabunt nos modis omnibus quibus poterunt, scilicet per capcionem castrorum, terrarum, possessionum, et aliis modis quibus poterunt, donec fuerit emendatum secundum arbitrium eorum, salva persona nostra et regine nostre et liberorum nostrorum; et cum fuerit emendatum intendent nobis sicut prius fecerunt. Et quicumque voluerit de terra juret quod ad predicta omnia exequenda parebit mandatis predictorum viginti quinque baronum, et quod gravabit nos pro posse suo cum ipsis, et nos publice et libere damus licenciam jurandi cuilibet qui jurare voluerit, et nulli umquam jurare prohibebimus. Omnes autem illos de terra qui per se et sponte sua noluerint jurare viginti quinque baronibus, de distringendo et gravando nos cum eis, faciemus jurare eosdem de mandato nostro, sicut predictum est. Et si aliquis de viginti quinque baronibus decesserit, vel a terra recesserit, vel aliquo alio modo impeditus fuerit, quominus ista predicta possent exequi, qui residui fuerint de predictis viginti quinque baronibus eligant alium loco ipsius, pro arbitrio suo, qui simili modo erit juratus quo et ceteri. In omnibus autem que istis viginti quinque baronibus committuntur exequenda, si forte ipsi viginti quinque presentes fuerint, et inter se super re aliqua discordaverint, vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum habeatur et firmum quod major pars eorum qui presentes fuerint providerit, vel preceperit, ac si omnes viginti quinque in hoc consensissent; et predicti viginti quinque jurent quod omnia antedicta fideliter observabunt, et pro toto posse suo facient observari. Et nos nichil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua istarum concessionum et libertatum revocetur vel minuatur; et, si aliquid tale impetratum fuerit, irritum sit et inane et numquam eo utemur per nos nec per alium.

Since, moreover, for God and the amendment of our kingdom, and for the
better allaying of the quarrel that has arisen between us and our
barons, we have granted all these concessions, desirous that they
should enjoy them in complete and firm endurance for ever, we give and
grant to them the underwritten security, namely, that the barons
choose five-and-twenty barons of the kingdom, whomsoever they will,
who shall be bound with all their might, to observe and hold, and
cause to be observed, the peace and liberties we have granted and
confirmed to them by this our present Charter, so that if we, or our
justiciar, or our bailiffs or any one of our officers, shall in
anything be at fault toward anyone, or shall have broken any one of
the articles of the peace or of this security, and the offence be
notified to four barons of the foresaid five-and-twenty, the said four
barons shall repair to us (or our justiciar, if we are out of the
realm) and, laying the transgression before us, petition to have that
transgression corrected without delay. And if we shall not have
corrected the transgression (or, in the event of our being out of the
realm, if our justiciar shall not have corrected it) within forty
days, reckoning from the time it has been intimated to us (or to our
justiciar, if we should be out of the realm), the four barons
aforesaid shall refer that matter to the rest of the five-and-twenty
barons, and those five-and-twenty barons shall, together with the
community of the whole land, distrain and distress us in all possible
ways, namely, by seizing our castles, lands, possessions, and in any
other way they can, until redress has been obtained as they deem fit,
saving harmless our own person, and the persons of our queen and
children; and when redress has been obtained, they shall resume their
old relations towards us. And let whoever in the country desires it,
swear to obey the orders of the said five-and twenty barons for the
execution of all the aforesaid matters, and along with them, to molest
us to the utmost of his power; and we publicly and freely grant leave
to every one who wishes to swear, and we shall never forbid anyone to
swear. All those, moreover, in the land who of themselves and of their
own accord are unwilling to swear to the twenty-five to help them in
constraining and molesting us, we shall by our command compel the same
to swear to the effect foresaid. And if any one of the five-and-twenty
barons shall have died or departed from the land, or be incapacitated
in any other manner which would prevent the foresaid provisions being
carried out, those of the said twenty-five barons who are left shall
choose another in his place according to their own judgment, and he
shall be sworn in the same way as the others. Further, in all matters
the execution of which is entrusted to these twenty-five barons, if
perchance these twenty-five are present and disagree about anything,
or if some of them, after being summoned, are unwilling or unable to
be present, that which the majority of those present ordain or command
shall be held as fixed and established, exactly as if the whole
twenty-five had concurred in this; and the said twenty-five shall
swear that they will faithfully observe all that is aforesaid, and
cause it to be observed with all their might. And we shall procure
nothing from anyone, directly or indirectly, whereby any part of these
concessions and liberties might be revoked or diminished; and if any
such thing has been procured, let it be void and null, and we shall
never use it personally or by another.

This important chapter stands by itself, providing machinery for enforcing all that precedes it. It thus forms what modern jurisprudence would describe as the “sanction” of the whole, but what was known in the current phrase of its own day as “the form of security” (_forma securitatis ad observandum pacem et libertates_).[1070] It contains the only executive clause of the Charter, the sole constitutional machinery provided for enforcing the rights now defined on parchment, the sole protection against future attempts of the king to render them of no effect.

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Footnote 1070:

This phrase occurs in the 49th (and last) of the Articles of the
Barons as the title of a clause which is separated from the others by
a blank on the parchment of the width of several lines of writing:
“_Haec est forma securitatis_,” etc. The words are not used as a
heading in the present chapter itself, but c. 52 refers to c. 61 as
the clause “_in securitate pacis_,” and c. 62 refers to the same as
“_super securitate ista_.”

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I. _The Nature of the “Security” or legal Sanction._ The procedure devised for enforcing the Charter was exceedingly crude: John conferred upon twenty-five of his most bitter enemies a legal right to organize rebellion, whenever in their opinion he had broken one of the provisions of Magna Carta. Violence might be legally used against him, until he redressed their alleged grievances “to their own satisfaction” (_secundum arbitrium eorum_). If it had been possible to put so violent an expedient in practice, the “sovereignty,” or supreme power in England, would have been split into two for practical purposes. While the old monarchy remained theoretically intact, John would have held the sceptre, still nominally his, only until his opponents declared that he had broken some part of the Charter, when, by his own previously-granted mandate, it would pass, along with wide powers of coercion, to the twenty-five barons forming what is sometimes described as a Committee of Executors, but which was rather a Committee of Rebellion.[1071] Instead of using, as was afterwards done with steadily increasing success, the king’s own administrative machinery and his own servants to restrain his own misdeeds, the barons preferred to set up a rival executive of their own, with wide but ill-defined powers, and connected with the older executive by no constitutional bonds. So long as a single alleged grievance remained unredressed, a new administration composed of John’s political antagonists existed in an attitude of, at best, armed neutrality, side by side with King John as the representative of the older system of monarchic administration.

Footnote 1071:

Cf. S. R. Gardiner, _Short History of England_, 183: “a permanent
organization for making war against the king.”

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The procedure for redressing grievances was described in some detail; the wronged party must make known his case to four barons of the twenty-five, and these would then personally make it known to the king, and ask redress. John was allowed time to effect this, but if he refused or delayed, then compulsion might be used. The Articles of the Barons had left the maximum term of delay unspecified, merely saying “within a reasonable time to be determined in the Charter.” The Charter did determine this, naming forty days. Compulsion might take any form (for example seizure of castles, lands, and personal estate), except violence against the person of the king, or against his wife or children. The present chapter, then, contained the only legal sanction mentioned in the Charter, and this may be briefly summarized as the delegation by John to a revolutionary committee of the baronial opposition, of wide powers of coercion to be used against him.

II. _Minor Details of the Scheme._ Although the whole expedient seems utterly chimerical to the modern mind, the opposition leaders in 1215 evidently thought they had devised a practicable scheme of government. This is shown by the care with which they elaborated the procedure to be adopted at different stages and in various contingencies.

(1) _Appointment of the twenty-five executors._ The members of the committee were to be, in the first instance, “elected” (a loose word already discussed) by the “barons.” The _majores barones_ of chapter 14 would undoubtedly have the controlling voice; but the _minores barones_ might possibly have taken some share in the appointment. Vacancies which occurred through death, absence from England, or any other cause, were to be filled by the method now known as “co-optation.” The committee, once appointed, would form a close corporation; no one uncongenial to the majority could gain admission—an arrangement with a thoroughly oligarchic flavour. The provision for supplying vacancies caused by death proves that the scheme was not to be temporary, but to last during John’s lifetime or longer. Twenty-five magnates seem to have been actually selected. The writs issued to the Sheriffs on 19th June command the enforcement of the oath to the twenty-five barons, but do not mention them by name. Matthew Paris supplies the omission, and though he does not disclose the source of his information, it is unlikely that so comprehensive a list could be entirely a work of the imagination.[1072] They occur in the following order, the earls of Hertford, Aumâle, Gloucester, Winchester, Hereford, Norfolk, and Oxford, William Marshall the younger, Robert fitz Walter the elder, Gilbert de Clare, Eustace de Vesci, Hugh Bigod, William of Mowbray, William Hardell (Mayor of London), William de Lanvalei, Robert de Ros, John de Lacy (Constable of Chester), Richard de Perci, John fitz Robert, William Mallet, Geoffrey de Say, Roger de Mumbezon, William of Huntingfield, Richard de Muntfitchet, and William of Albini.[1073] There are here no churchmen and no members of the moderate party whose names appear in the preamble. All except two, or at the most three, of the twenty-five were drawn from those factions of the baronage who were the declared enemies of John.[1074] It was an oligarchy of disaffected Crown tenants, whose baronial homogeneity was only broken by the presence of one representative of other classes, the Mayor of London. Such a committee was not likely to use the excessive powers delegated to it by John to further any other interests than its own. Even Stephen Langton and his fellow-prelates were soon to discover this, as the two protests issued by them clearly prove.

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Footnote 1072:

R. Wendover, from whom Paris borrows so freely, gives no list.

Footnote 1073:

The list is taken from Matthew Paris, _Chron. Maj._, II. 604-5, as
corrected by Blackstone, _Great Charter_, p. xx., after collation with
a marginal note on the Harleian MS. of the charter (cf. _supra_, 198,
n). Paris gives “Boys” in place of “Ros,” and “Roger de Munbrai” in
place of “Roger of Mumbezon.” This list should be contrasted with
(_a_) that of the moderate party named in the preamble to Magna Carta,
and (_b_) that of John’s foreign favourites named in c. 50. For
biographical information, see Thomson, _Magna Charta_, 270–312.

Footnote 1074:

These three were Earl Aumâle (a title apparently sometimes exchanged
for that of Earl of York, see Round, _Geoffrey de Mandeville_, 157,
n.), William of Albini, and, possibly, Geoffrey de Say (see Stubbs,
_Const. Hist._, I. 583).

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(2) _A majority of those present to form a quorum._ Driven by the necessities of the case, the barons devised, or stumbled upon, a peculiarly modern expedient. The presence of every member of the committee of twenty-five could not reasonably be expected upon every occasion, while absolute unanimity on questions of delicacy would be difficult to obtain. It was provided, accordingly, that the will of the majority of those present should prevail. It would be inaccurate to say, in modern phraseology, that thirteen formed a quorum, since the quorum varied with the number of those present. It is notable that no provision was made for summoning or constituting meetings of the committee endowed with these tremendous powers. Room was thus left for packed meetings of one faction being hurriedly convened and usurping the rights of the whole body. The precedent thus tentatively introduced for the right of a majority to act for the whole was followed only timidly and at long intervals. Still, its appearance in John’s Charter marks a stage in the advance of the valuable principle of modern politics which substitutes the “counting of heads for the breaking of them.”

(3) _The sub-committee of four._ Four of the twenty-five Executors were to act as a medium of intercourse between aggrieved individuals and the king, being charged with the duty of hearing complaints and laying them before John. Such a position would involve wide discretionary powers; for if the four barons refused to endorse the justice of the complaint, John also would be in safety to refuse.[1075]

-----

Footnote 1075:

An alternative explanation is also possible, namely, that the function
of intermediary might be exercised by any four members of the
twenty-five. In that view, an aggrieved individual might have pressure
placed upon the king if he persuaded any four to act together in
support of his claim. This would imply a second quorum, this time of
four, for a special purpose, in addition to the quorum of varying
numbers already discussed. In either view, the road to redress would
be easier for the great man than for his obscure neighbour.

-----

(4) _Local agents of the twenty-five executors._ In each county the twelve knights, whose original function was to preside at inquiries into “evil customs,” came to act as the local representatives of the revolutionary committee, being associated with the sheriff in the discharge of all his duties and armed with power to constrain him to carry out the provisions of Magna Carta, very much as the twenty-five were authorized to constrain the king. In particular, these knights were charged with the enforcement of the oath of obedience to the revolutionary committee, and with the confiscation of the property of all who refused.[1076]

-----

Footnote 1076:

Cf. _supra_, c. 48.

-----

(5) _The part to be played by the public._ The king authorized his subjects to side with the executors and against him if he should violate the Charter, and to assist them in such acts of violence as the forcible seizure of his castles, lands, and personal estate; for his general mandate was granted to the twenty-five “_cum communa totius terre_,” while licence was “freely and publicly” bestowed on everyone so disposed to swear obedience to the Executors in all such acts, and to bring their weight to bear on the king to the best of their ability. Two aspects of this provision require special attention: (_a_) _Its relation to allegiance and treason._ It was intended to operate as a provisional release of John’s subjects from their oaths of fealty and homage, and consequently from the pains and penalties of the treason laws. John solemnly authorized his subjects, in certain circumstances, to transfer their allegiance from himself to the committee of his foes. If they refused, he promised to compel them; and on 27th June, 1215, writs were actually issued instructing the seizure of the lands and goods of all who would not swear to obey the twenty-five.[1077] (_b_) _Communa totius terre._ The “community of the whole land” was thus to afford active help in subjecting the king to the reign of law; and the phrase has been pressed into the service of democracy by enthusiasts who seek to magnify modern conceptions by finding their roots in the past. Few words of medieval Latin offer a more tempting field to enquirers than this _communa_, which, with its English and French equivalents, holds the key to many problems of constitutional origins. A group of interesting questions clusters round the three words “borough, guild, and commune,” and the appearance in Magna Carta of a body described as a “commune” (_communa totius terre_) in conjunction with an oath of obedience to a revolutionary committee suggests an interesting comparison with the form of civic constitution known in that age as “the sworn commune.”[1078] A second field of enquiry, equally alluring, is suggested by the fact that the lower chamber of the Mother of Parliaments, the English “House of Commons,” was originally composed of the representatives of the various communes or communities known as counties and boroughs respectively.

-----

Footnote 1077:

See Appendix.

Footnote 1078:

It was only fourteen years since London (in 1191), probably following
the lead of Rouen, had extorted its “sworn commune” from Prince John
as the price of its support (cf. _supra_, c. 13). It might be
dangerous, however, to push so tempting an analogy too far.

-----

These wider questions are here referred to merely as illustrations of the difficulties that lurk in the word “commune,” and in the equally perplexing phrase “commune of the whole land.”[1079] The mere use of such a phrase cannot be accepted as a proof that the Charter rests on a broad popular basis.

-----

Footnote 1079:

Cf. _supra_, pp. 137-8.

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III. _Criticism of the Scheme._ The faults of the scheme, whether viewed from the side of theory or of practice, are obvious. It was a violent and unnatural measure, full of immediate dangers, and calculated to exercise a baneful influence on constitutional development in the future. The fact that Magna Carta provided no better sanction for its own enforcement than the right of legalized rebellion has already been discussed as its cardinal defect.[1080] Instead of preventing the king from inflicting wrongs, it merely provided forcible measures for the redress of those already committed, thus adding the crowning evil of civil war to those minor evils it sought to reform. That the whole scheme was foredoomed to failure constitutes perhaps its least conspicuous fault in the eyes of later history. It is instructive to note a few of its other defects in detail.

-----

Footnote 1080:

See _supra_, p. 150.

-----

(1) The scheme challenged hostility by its want of moderation. It aimed at reducing the Crown at one blow from the plenitude of irresponsible tyranny to a position of degrading impotence. On every vexed political question of the day, John’s authority would have been superseded by that of twenty-five of the most hostile faction of the baronage. If the king thought himself aggrieved in anything, he would require to plead his cause humbly before a tribunal in which his opponents sat as judges. The scheme was thus repugnant to the mass of loyal Englishmen, who cherished a respect for the time-honoured principle of monarchy. No king with a grain of self-respect would long submit tamely to a position so illogical and degrading—to remain a sovereign whose “sovereignty” existed merely on the sufferance of his enemies, a puppet-king whose subjects had the legal right to coerce him. The powers thus conferred on a baronial committee in 1215 were more sweeping than those conferred on a similar committee in 1258, and yet the Parliament which appointed the latter has been branded for all time as “the Mad Parliament,” because of the violence of its measures against the king.

(2) Rebellion, even where morally justified, is essentially and necessarily illegal; to attempt to map out for it a legitimate sphere of action is to attempt the logically impossible. The barons, in their dearth of political experience, and in the extremity of their need, had demanded and obtained something more dangerous than the amplest measure of constitutional authority. They had failed to rise to the true conception of a limited monarchy. Their scheme recognized a king still absolute in some matters, but in others powerless and abject. They set up side by side two rival Executives, each in different circumstances supreme. The relations of the two were far from accurately defined, even in theory, while collisions were certain to occur frequently in practice. The powers of the twenty-five, a body which received no proper organization, were those of aggression rather than of administration. Viewed in this light, the claims of the barons to constructive statesmanship rank extremely low.

(3) The powers of the Revolutionary Committee, excessive though ill-defined, backed by the sworn obedience of all classes of the nation, would tend completely to paralyze the king. The nominal sovereign, always nervous under this sword of Damocles, would lose all power of initiative, while the committee, so powerful to reduce him to impotence, would be powerless alike to goad him into action or to act in his stead. The Revolutionary Committee had been planned as a drag on a bad executive, not as a good executive to take its place.

(4) Even as a drag, however, the efficiency of the committee would have been completely neutralized in either of two contingencies: if the barons composing it disagreed among themselves, or, if the king refused to surrender, preferring the appeal to arms. The monarch had always the alternative of civil war, and the material and moral advantage of acting on the defensive lay with him; while the committee had to face the risks to which an attacking party is invariably exposed. Not a single step to restrain the king could legally be taken until he had precipitated matters by committing a clear act of aggression, and had thereafter received formal intimation followed by an interval of forty days, during which he might complete his preparation for war without fear of interruption.

(5) If the scheme of the barons seems ill-suited to meet the needs of the hour of its conception, it was fraught with even greater dangers to the future development of the English constitution. The problem it sought to solve was one of no transient or unimportant nature, since it was nothing less than the devising of legal machinery to prevent the king from abusing the powers entrusted to him. The barons sought the best method of turning royal promises of reform into laws which succeeding kings must obey. In attempting this, Magna Carta moved along lines which were radically wrong; which, if not departed from in time, would have rendered any enduring progress impossible. The statesmanship which, while leaving one king on the throne, subjected him to the dictation of “five-and-twenty over-kings” in regard to all vital questions of the day, was crude and ill-advised. It is true that the party of reform throughout the long reign of Henry III. clung to the same erroneous solution, although under various modifications on points of detail; but they met with no success. After half a century of unrest a settlement seemed as far distant as before. If the same policy had been persisted in during Edward’s reign the English constitution, as it became known to after ages, would never have been evolved. The dangers and defects of schemes like those of 1215 and of 1258 are most clearly seen in contrast with the more tactful efforts of Edward I. towards a true solution, along lines leading in due time to complete success.

The true policy for the barons was to use the king’s own administrative machinery and the king’s own servants to control the king himself. The principle was slowly established that the sovereign could perform no single act of prerogative except through the agency of the proper minister or group of ministers. Each function of government became associated with a specific office or organ of the royal household. The rights of the official head of each department became stereotyped, and his position obtained full legal acknowledgment, while very gradually the doctrine of ministerial responsibility grew up, compelling each officer of the Crown to obey not only the law of the land, but also the _Commune Concilium_, fast changing into the modern Parliament. The expedients of an earlier age disappeared as no longer required, when the king’s good faith was secured by means of the friendly control of his own ministers, not by the violent compulsion of his opponents. The credit of starting the constitution on its right line of development is in great measure due to Edward I.[1081]

-----

Footnote 1081:

Cf. _supra_, pp. 189-193 for a sketch of Edward’s policy.

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IV. _Dr. Gneist’s Criticism._ Dangerous and even absurd as this scheme appears, it has found its apologist. Dr. Gneist accuses English historians of making “very inappropriate comparisons” between this baronial committee and the continental expedients of the same period. While in most countries of Europe, each baron arrogated the right of private war against his sovereign in circumstances to be determined by his own individual judgment, Magna Carta conferred rights of rebellion only on the barons “in their collective capacity,” and “as represented by definite organs.”[1082] The substitution of collective repressive measures for the right of private feud undoubtedly marks an advance; but rebellion, even when organized, cannot be considered a satisfactory constitutional expedient. Dr. Gneist is scarcely more convincing when he argues that English historians and jurists have condemned too unreservedly a scheme which is “so far in harmony with the spirit of the feudal state of the Middle Ages as it was based upon a mutual relation of feudal protection and fealty, that is, upon compact.” “The concession by agreement,” he continues, “of the rights of distress was altogether so entirely consonant with the legal conceptions of the Middle Ages that in this way the committee of resistance loses a portion of its apparently revolutionary character.”[1083] That the Middle Ages approved of revolution does not, however, change it into constitutional action; while the fact that it was founded upon the feudal conception of mutual contract may explain it, but does not render it more worthy of admiration. The whole scheme was, of course, thoroughly in accord with the public opinion of the age, but that merely shows how wide is the gulf which separates medieval conceptions from modern ones, and how absurd it is to regard the Great Charter, as is sometimes done, as anticipating the fundamental principles of the English constitution of to-day.

-----

Footnote 1082:

Gneist, _English Const._, 251.

Footnote 1083:

_Ibid._

-----

In spite of all apologies, the crudeness of the only sanction provided by Magna Carta for its own enforcement prevents it from ranking as a great monument of constructive statesmanship.

V. _Failure of the Scheme._ Almost before John’s Magna Carta, in its completed form, had been engrossed and sealed, the futility of its sanction was recognized. Each side grew suspicious and demanded new “sanctions,” new guarantees not contained in the Charter.

(1) _Quis custodiet ipsos custodes?_ Magna Carta, assuming apparently that perfect trust could be placed in the rectitude and wisdom of the Revolutionary Committee, provided no machinery for controlling them, no guarantee that they would observe the Charter without misinterpreting its provisions to suit their own selfish interests. The futility of this complacency was soon manifest. One tyrant had brought distress on the whole nation; and now he was to be superseded by five-and-twenty. Who was to restrain the new tyrants? A second committee was nominated partly to assist and partly to control the twenty-five. Matthew Paris[1084] describes it as composed of thirty-eight “_Obsecutores et Observatores_,” including the Earl Marshal, Hubert de Burgh, the earls of Arundel and Warenne, and other prominent members of the moderate party, not unfriendly to the king. Dr. Stubbs dismisses their relations to the executors with the remark that they “swore to obey the orders of the twenty-five.”[1085] Miss Norgate takes what seems to be a better view, in emphasizing as the chief reason for their appointment the duty of compelling “both the king and the twenty-five to deal justly with one another.”[1086] The thirty-eight were required to constrain the twenty-five, as the twenty-five constrained the king.[1087]

-----

Footnote 1084:

_Chron. Maj._, II. 605-6.

Footnote 1085:

_Const. Hist._, I. 583, n.

Footnote 1086:

_John Lackland_, 236.

Footnote 1087:

One version of the narrative of Matthew Paris is much fuller than the
other. The first MS. merely says, “_Isti omnes juraverunt quod
obsequerentur mandato viginti quinque baronum._” The second gives the
important addition, “_Omnes isti juraverunt cogere si opus esset
ipsos_ xxv. _barones ut rectificarent regem_. _Et etiam cogere ipsum
si mutato animo forte recalcitraret_,” II. 606, n.

-----

(2) _Suspicions of the barons’ good faith._ Whether the appointment of the committee of thirty-eight was due partly to John’s influence or was entirely the result of mutual jealousies in the ranks of those opposed to him, there is absolute evidence that the king was distrustful of the barons’ good faith, and desired on his part some “sanction” that they would not again renounce that allegiance, the renewal of which was the _quid pro quo_ for which he had granted the Charter. Apparently the leading barons did renew their oath of fealty and homage on 19th June at Runnymede; but refused to grant a formal Charter to that effect, although they had promised to give any security John might require, except hostages or castles. The prelates when appealed to sided with the king; they executed a formal declaration or protest, recording the barons’ promise and subsequent refusal to give effect to it. There is no reason to doubt the testimony of the prelates; they had been present at all the negotiations, and it was by their mediation that the terms of peace embodied in Magna Carta had been settled. This was not the only matter on which the bishops found it necessary to intervene on the king’s behalf. The new baronial executive and the twelve knights who acted as their agents in each county, pushed to unfair lengths the authority to reform abuses conferred on them in terms of Magna Carta. In particular, they proceeded virtually to abolish the royal forests altogether by abrogating as evil customs the procedure on which this branch of the Crown’s prerogative rested. The prelates placed on record a formal protest on this head also.[1088]

-----

Footnote 1088:

The texts of both Protests are given in the Appendix.

-----

(3) _Suspicions of John’s good faith._ If neither the king nor the nation at large considered that the Great Charter contained sufficient safeguards of their interests against the Committee of Executors, the barons themselves soon came to the conclusion that the Committee, in spite of all its powers, formed an inadequate sanction against John. Accordingly they demanded further “security.” The city of London was placed in their hands, and the Tower of London in the neutral custody of the primate, as pledges of John’s good faith, until 15th August or longer if need were. Those terms were reduced to writing in a document entitled “_Conventio facta inter Regem Anglie et barones ejusdem regni_,” which thus supplied a new sanction, or “form of security,” supplementing, if not superseding, that contained in chapter 61 of Magna Carta.[1089]

-----

Footnote 1089:

See _supra_, 51–2. The text is given in Appendix. Thirteen of the
twenty-five executors are mentioned by name as agreeing to this new
treaty on behalf of themselves and other earls, barons and freeholders
unnamed. Cf. R. Wendover, III. 319 (“_et turrem Londonarum_”). A third
sanction, or form of security, appears in the garbled versions of the
Charter given by R. Wendover (III. 317) and M. Paris (II. 603): the
constables of the four royal castles of Northampton, Kenilworth,
Nottingham and Scarborough, were to swear to hold these strongholds
under orders of the twenty-five executors. See M. Paris (_Ibid._).
This clause has not been found in any known copy of any issue of Magna
Carta. Cf. Mr. H. R. Luard’s _preface_ to the second volume of Matthew
Paris, pp. xxxiii. to xxxvi., where he discusses the peculiarities of
the versions given by Wendover and Paris.

-----

(4) _Precautions against papal intervention._ The Articles of the barons afford undoubted evidence of its framers’ suspicions that John would apply to Rome for absolution from his bargain. They showed considerable shrewdness in demanding that the English prelates and the papal legate should become the king’s sureties that he would not procure from the Pope anything to invalidate the Charter or diminish its efficacy. If Pandulf, as the Pope’s accredited agent, had actually put his seal to such a document, he would have seriously embarrassed his august master in supporting John in a course of repudiation.

Two important alterations in the completed Charter were effected, however, whether at John’s instance, or at that of Pandulf, or of the English prelates, is matter of conjecture. No mention was made of Innocent by name, the clause being made quite general in its terms. John merely promised to procure a dispensation “from no one,” while the question of sureties was quietly ignored. The reason for the omission readily suggests itself; Pandulf would naturally object to commit his principal or himself to any pledge of the kind. The Pope preserved perfect freedom, and the use which he made of this is matter of common knowledge.[1090]

-----

Footnote 1090:

Cf. _supra_, p. 55.

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CHAPTER SIXTY-TWO.

Et omnes malas voluntates, indignaciones, et rancores ortos inter nos et homines nostros, clericos et laicos, a tempore discordie, plene omnibus remisimus et condonavimus. Preterea omnes transgressiones factas occasione ejusdem discordie, a Pascha anno regni nostri sextodecimo usque ad pacem reformatam, plene remisimus omnibus, clericis et laicis, et quantum ad nos pertinet plene condonavimus. Et insuper fecimus eis fieri litteras testimoniales patentes domini Stephani Cantuariensis archiepiscopi, domini Henrici Dublinensis archiepiscopi, et episcoporum predictorum, et magistri Pandulfi, super securitate ista et concessionibus prefatis.

And all the ill-will, hatreds, and bitterness that have arisen between
us and our men, clergy and lay, from the date of the quarrel, we have
completely remitted and pardoned to everyone. Moreover, all trespasses
occasioned by the said quarrel, from Easter in the sixteenth year of
our reign till the restoration of peace, we have fully remitted to
all, both clergy and laymen, and completely forgiven, as far as
pertains to us. And, on this head, we have caused to be made out to
them letters patent of Stephen, archbishop of Canterbury, Henry,
archbishop of Dublin, the bishops aforesaid, and master Pandulf, as
evidences of this clause of security and of the foresaid concessions.

The clauses which follow the _forma securitatis_ are entirely of a formal nature, adding nothing to the substance of Magna Carta. The present chapter, after making a well-meant declaration that bygones should be bygones, and that perfect peace and goodwill should everywhere prevail—a pious aspiration doomed to speedy disillusion—proceeds to authorize the prelates to issue under their seals certified copies of the terms of the Great Charter. Such letters were actually issued, and their terms are preserved in the Red Book of the Exchequer.[1091]

-----

Footnote 1091:

See _folio_ 234. The text which is reproduced by Bémont, _Chartres_,
p. 35, runs as follows: "Omnibus Christi fidelibus ad quos presens
scriptum pervenerit, Stephanus Dei gratia Cantuariensis
archiepiscopus, tocius Anglie primas et sancte romane ecclesie
cardinalis, Henricus, eadem gratia Dublinensis archiepiscopus,
Willelmus Londoniensis, Petrus Wintoniensis, Joscelinus, Bathoniensis
et Glastoniensis, Hugo Lincolniensis, Walterus Wigorniensis, Willelmus
Coventriensis et Benedictus Roffensis, divina miseracione episcopi, et
magister Pandulfus domini pape subdiaconus et familiaris, salutem in
Domino. Sciatis nos inspexisse cartam quam dominus noster Johannes
illustris rex Anglie fecit comitibus, baronibus et liberis hominibus
suis Anglie de libertate sancte ecclesie et libertatibus et liberis
consuetudinibus suis eisdem ab eo concessis sub hac forma....

. . . . [Here follows the text of John’s Magna Carta]. . . .

Et ne huic forme predicte aliquid possit addi vel ab eadem aliquid
possit subtrahi vel minui, huic scripto sigilla nostra apposuimus."

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CHAPTER SIXTY-THREE.

Quare volumus et firmiter precipimus quod Anglicana ecclesia libera sit et quod homines in regno nostro habeant et teneant omnes prefatas libertates, jura, et concessiones, bene et in pace, libere et quiete, plene et integre sibi et heredibus suis, de nobis et heredibus nostris, in omnibus rebus et locis, in perpetuum, sicut predictum est. Juratum est autem tam ex parte nostra quam ex parte baronum, quod hec omnia supradicta bona fide et sine malo ingenio observabuntur. Testibus supradictis et multis aliis. Data per manum nostram in prato quod vocatur Ronimede, inter Windlesoram et Stanes, quinto decimo die Junii, anno regni nostri decimo septimo.

Wherefore it is our will, and we firmly enjoin, that the English
Church be free, and that the men in our kingdom have and hold all the
aforesaid liberties, rights, and concessions, well and peaceably,
freely and quietly, fully and wholly, for themselves and their heirs,
of us and our heirs, in all respects and in all places for ever, as is
aforesaid. An oath, moreover, has been taken, as well on our part as
on the part of the barons, that all these conditions aforesaid shall
be kept in good faith and without evil intent. Given under our
hand—the above-named and many others being witnesses—in the meadow
which is called Runnymede, between Windsor and Staines, on the
fifteenth day of June, in the seventeenth year of our reign.

This last of the sixty-three chapters into which Magna Carta has been divided for purposes of convenience, not by its framers, but by modern commentators, contains little that calls for special comment. Beginning with a repetition of the declarations already made in chapter one that the English church should be free (omitting, however, any second reference to canonical election) and that _homines in regno nostro_ should have and hold all of the aforesaid liberties, rights and concessions, it went on to record the fact that both parties had taken oath to observe its contents in good faith.[1092] The magnates named in the preamble were thereafter, along with many others who were not named, referred to collectively as witnesses. The Charter concludes with the declaration that it has been “given by our hand,” the place and date being specified, so as to conform to the formalities required in legal documents. The actual giving by John’s hand was effected by the impress of his great seal.[1093]

-----

Footnote 1092:

Cf. _supra_, 125.

Footnote 1093:

There are no signatures to the document. The frequent references to
“the signing of the Great Charter” (_e.g._ Medley, _Const. Hist._,
127) are thus inaccurate, if “signing” is taken in its modern sense of
“subscribing,” but may perhaps be justified by a reference to _signum_
in its original meaning of “a seal.” To imprint a seal was, in a
sense, “to sign.” That Magna Carta, in spite of its mention of its own
date as 15th June, was actually sealed on the 19th has already been
asserted, _supra_, 48–49. To the proofs there adduced should be added
the testimony of the _Annals of Dunstable_, III. 43, which report that
peace was made between king and barons at Runnymede “_die Gervasii et
Protasii_.”

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