PART II. FEUDAL GRIEVANCES AND MAGNA CARTA.

I. The Immediate Causes of the Crisis.

Many attempts have been made to explain why the storm, long brewing, broke at last in 1214, and culminated precisely in June of the following year. Sir William Blackstone^[60] shows how carefully historians have sought for some one specific feature or event, occurring in these years, of such moment as by itself to account for the rebellion crowned for the moment with success at Runnymede. Thus Matthew Paris, he tells us, attributes the whole movement to the sudden discovery of Henry I.’s charter, long forgotten as he supposes, while other chroniclers agree in assigning John’s inordinate debauchery as the cause of the civil dissensions, dwelling on his personal misdeeds, real and imaginary. “Sordida foedatur foedante Johanne, gehenna.”^[61] Blackstone himself suggests a third event, the appointment as Regent in John’s absence of the hated alien and upstart, Peter des Roches, and his misconduct in that office.

There is absolutely no necessity to seek in such trivial causes the explanation of a great movement, really inevitable, the antecedents of which were deeply 59rooted in the past. The very success of Henry Plantagenet in performing the great task of restoring order in England, for effecting which special powers had been allowed to him, made the continuance of these powers to his successors unnecessary. From the day of Henry’s death, if not earlier, forces were at work which only required to be combined in order to control the licence of the Crown. When the battle of order had been finally won—the complete overthrow of the rebellion of 1173 may be taken as a crucial date in this connection—the battle of liberty had, almost necessarily, to be begun. The clamant problem of the hour was no longer how to prop up the weakness of the Crown; but rather how to place restrictions on its unbridled strength.

We need not wonder that the crisis came at last, but rather why it was so long delayed. Events, however, were not ripe for rebellion before John’s accession, and a favourable occasion did not occur previous to 1215. The doctrine of momentum accounts in politics for the long continuance of old institutions in a condition even of unstable equilibrium; an entirely rotten system of government may remain for ages until at the destined moment comes the final shock. John conferred a great boon on future generations, when by his arrogance and by his misfortunes he combined against him all classes and interests in the community.

The chief factor in the coalition which ultimately triumphed over John was undoubtedly the baronial party led by those strenuous nobles of the north, who were, beyond doubt, goaded into active opposition by their own personal and class wrongs, not by any altruistic promptings to sacrifice themselves for the common good. Their complaints, too, as they appear reflected in the imperishable record of Magna Carta, are mainly grounded on breaches of the technical rules of feudal usage, not upon the broad basis of constitutional principle.

The feudal grievances most bitterly resented may be ranged under one or other of two heads—increase 60in the weight of feudal obligations and infringement, of feudal jurisdictions. The Crown, while it exacted from its tenants the fullest measure of services legally exigible, interfered persistently at the same time with those rights and privileges which had originally balanced the obligations. The barons were compelled to give more, while they received less.

With the first group of baronial grievances posterity can sympathize in a whole-hearted way, since the increase of feudal obligations inflicted undoubted hardships on the Crown tenants, while the redress of these involved no real danger to constitutional progress. One and all of the grievances included in this first group could be condemned (as they were condemned by various chapters of Magna Carta) without unduly reducing the efficiency of the monarchy which still formed under John, as it had done under William I., the sole source of security against the dangers of feudal anarchy. Posterity, however, cannot equally sympathize with the efforts of the barons to redress their second class of wrongs. However great may have been the immediate hardships inflicted on members of the aristocracy by the suppression of their feudal courts, lovers of constitutional progress can only rejoice that all efforts to restore them failed. Those clauses of Magna Carta which aimed at reversing the great currents flowing towards royal justice, and away from private baronial justice, produced no permanent effect, and posterity has had reason to rejoice in their failure.

Each group of feudal grievances—those connected with the increase of feudal obligations, and those connected with the curtailment of feudal immunities—requires special and detailed treatment.^[62] To each class a double interest attaches, since the resentment aroused by both formed so vital an element in the spread of that spirit of determined resistance to King John, which led to the winning of Magna Carta, and since, further, an intimate knowledge 61of the exact nature of these grievances throws a flood of light on many otherwise obscure clauses of the Great Charter, and enables us to estimate how far the promised remedies were ultimately carried into practice in later reigns.

The grievances of the barons, many and varied as they were, were not, however, the only wrongs calling for redress. It is probable that the baronial party, if they had acted in isolation from the other estates of the realm, would have failed in 1215 as they had already failed in 1173. If the Crown had retained the active sympathy of Church and common people, John might have successfully defied the baronage as his father had done before him. He had, on the contrary, alienated from the monarchy all estates and interests, and had broadened the basis of opposition to the throne by ill-treating the mercantile classes and the peasantry who, from the reign of William I. to that of Henry II., had remained the fast, if humble, friends of the Crown. The order-loving tradesmen of the towns had been previously willing to purchase protection from Henry at the price of heavy, even crushing taxation; but when John continued to exact the price, and yet failed to furnish good government in return, his hold on the nation was completely lost. So far from protecting the humble from oppression, he was himself the chief central oppressor, and he let loose, besides, his foreign officers and favourites as petty local oppressors in all the numerous offices of sheriff, castellan, and bailiff. Far from using the perfected machinery of Exchequer, Curia, and local administration in the interests of good government, John valued them merely as instruments of extortion and outrage—as ministers to his lust and greed.

The lower orders were by no means exempt from the increased taxation which proved so galling to the feudal tenants. When John, during his quarrel with Rome, repaid each new anathema of the Pope by fresh acts of spoliation against the national Church, the sufferings of 62the clergy were shared by the poor. In confiscating the goods of the monasteries, he destroyed the chief provision for poor-relief known to the thirteenth century. The alienation of the affections of the great masses of lower-class Englishmen thus effected was never wholly undone, even by the reconciliation of John with the Pope. Notwithstanding the completeness and even abjectness of John’s surrender to Rome, he took no special pains to reinstate himself in the good graces of the Church at home. Innocent, secure at the Lateran, had issued his thunderbolts; and John’s counter-strokes had fallen, not on him, but on the English clergy—from the prelate to the parish priest, from the abbot to the humblest monk. The measures taken, in 1213 and afterwards, to make good to these victims some part of the heavy losses sustained, were quite inadequate. The interests of the Church universal were often widely different from those of the national Church, and such diversity was never more clearly marked than in the last years of the reign of John.

After 1213, John’s alliance with Rome brought new dangers in its train. The united action of two tyrants, each claiming supreme powers, lay and spiritual respectively, threatened to exterminate the freedom of the English nation and the English Church. “The country saw that the submission of John to Innocent placed its liberty, temporally and spiritually, at his mercy; and immediately demanded safeguards.”^[63]

This union of tyrants naturally led to another union which checkmated it, for the baronial opposition allied itself with the ecclesiastical opposition. The urgency of their common need thus brought prelates and barons into line—for the moment. The necessary leader was found in Stephen Langton, who succeeded in preventing the somewhat divergent interests of the two estates from leading them in opposite directions.

All things were thus ripe for rebellion, and even for united rebellion; an opportunity only was required. Such 63an opportunity came in a tempting form in 1214; for the King had then lost prestige and power by his failure in the wars with France. He had lost the confidence of his subjects by his quarrel with Rome, and he failed to regain it by his reconciliation. He had lost the friendship of the national Church. His unpopularity and vacillating nature had been thoroughly demonstrated. Finally he had himself, in 1191, when plotting against his absent brother Richard, successfully attacked and ousted the Regent Longchamp from office, thus furnishing an example of rebellion, and of successfully concerted action against the central government.

The result was that, when the barons—the wildest spirits of the northern counties taking always the lead—began active operations at a juncture of John’s fortunes most favourable to their aspirations, not only had they no opposition to dread from churchman or merchant, from yeoman or peasant, but they might count on the sympathy of all and the active co-operation of many. Further, John’s policy of misrule had combined against him two interests usually opposed to each other, the party of progress and the party of reaction. The influence of each of these may be clearly read in the various chapters of Magna Carta.

The progressive party consisted mainly of the heads of the more recently created baronial houses, men trained in the administrative methods of Henry II., who desired merely that the system of government they knew should be properly enforced and carried out to its logical conclusions. They demanded chiefly that the King should conduct the business of the Exchequer and Curia according to the rules laid down by Henry II. Routine and order under the new system were what this party desired, and not a return to the unruly days of Stephen. Many of the innovations of the great Angevin had now been loyally and finally accepted by all classes of the nation; and these accordingly found a permanent resting-place in the provisions of the Great Charter. In temporary co-operation with 64this party, the usually rival party of reaction was willing to act for the moment against the common enemy. There still existed in John’s reign magnates of the old feudal school, who hoped to wrest from the weakened hand of the King some measure of feudal independence. They had indeed accepted such reforms as suited them, but still bitterly opposed many others. In particular, they resisted the encroachments of the royal courts of law which were gradually superseding their private jurisdictions. For the moment, John’s crafty policy, so well devised to gain immediate ends, and so unwise in the light of subsequent history, combined these two streams, usually ready to thwart each other, into a united opposition to his throne. Attacked at the same moment by the votaries of traditional usage and by the votaries of reform, by the barons, the trading classes, and the clergy, no course was left him but to surrender at discretion. The movement which culminated at Runnymede may thus best be understood as the resultant of a number of different but converging forces, some of which were progressive and some reactionary.

II. The Crown and Feudal Obligations.

Among the many evils calling loudly for redress in England at the commencement of the thirteenth century, none spoke with more insistent voice than those connected with feudal abuses. The objection of the northern barons to pay the scutage demanded on 26th May, 1214, was the spark that fired the mine. The most prominent feature of the Charter is the solicitude everywhere displayed to define the exact extent of feudal services and dues, and to prevent these from being arbitrarily increased. A somewhat detailed knowledge of feudalism and feudal obligations forms a necessary preliminary to any exact study of Magna Carta.

The precise relations of the Norman Conquest to the growth of feudalism in England are complicated, and have formed the subject of much controversy. The view now 65generally accepted, and with reason, is that the policy of William the Conqueror accelerated the process in one direction, but retarded it in another. Feudalism, regarded as a system of government, had its worst tendencies checked, if not eradicated, by the great upheaval that followed the coming of Duke William; feudalism, considered as a system of land tenure, and as a social system, was, on the contrary, formulated and developed. It is mainly as a system of land tenure that it falls here to be considered. Originally, the relationship between lord and tenant, dependent upon the double ownership of land (of which each was, in a different sense, the proprietor), implied obligations on both sides. The lord gave protection, while the tenant owed services of various sorts. It so happened, however, that, with the changes wrought by time, the legal obligations of the lord ceased to be of much importance, while those of the vassal became more and more burdensome. The tenant’s obligations varied in kind and in extent with the nature of the tenure. It is difficult to frame an exact list of the various tenures formerly recognized as distinct in English law: partly because the classical authors of different epochs, from Bracton to Blackstone, contradict each other; and partly because of the obscurity of the process by which these tenures were gradually differentiated. The word “tenure” originally meant “a holding” of any sort. Sir William Blackstone,^[64] after explaining the dependent nature of all real property in England, thus proceeds: “The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure.” Tenure thus comes to mean the conditions on which a tenant holds real estate under his lord, and the number of tenures varies with the number of accepted types.

The ancient classification differs materially from that in use at the present day. The modern English lawyer (unless of an antiquarian turn of mind) concerns himself only with three tenures: freehold (now practically identical with socage), copyhold and leasehold.leasehold. The two last-mentioned 66may be rapidly dismissed, as they were of little importance in the eyes of Littleton, or of Coke: leasehold embraces only temporary interests, such as those of a tenant-at-will or for a limited term of years; while copyhold is the modern form of tenure into which the old unfree villeinage has slowly ripened. The ancient writers were, on the contrary, chiefly concerned with holdings both permanent and free (as opposed to leaseholds on the one hand and villeinage on the other). Of such free tenures seven at least may be distinguished in the thirteenth century, all of which have now come to be represented by the same one of the three recognized modern tenures, namely, freehold or socage. The free holdings existing in medieval England may be ranged under the following heads, viz.: knight’s service, free socage, fee-farm, frankalmoin, grand serjeanty, petty serjeanty, and burgage.

(1) Knight’s Service. Medieval feudalism had many aspects; it was almost as essentially an engine of war as it was a system of land-holding. The normal return for which an estate was granted consisted of the service in the field of a specific number of knights. Thus the normal feudal holding was known as knight’s service, or tenure in chivalry—the conditions of which must be constantly kept in view, since by these rules the relations between John and his recalcitrant vassals fell to be determined. When finally abolished at the Restoration, there fell with knight’s service, it is not too much to say, the feudal system of land tenure in England. “Tenure by barony” is sometimes spoken of as a separate species, but may be more correctly viewed as a variety of tenure in chivalry.^[65]

(2) Free Socage. The early history of socage, with its division into ordinary and privileged, is involved in obscurities which do not require to be unravelled for the purpose at present on hand. The services which had to be returned for both varieties were not military but agricultural, and their exact nature, and amount varied considerably. Although not so honourable as chivalry, free 67socage was less burdensome in respect that two of the most irksome of the feudal incidents, wardship and marriage, did not apply. When knight’s service was abolished those who had previously held their lands by it, whether under the Crown or under a mesne lord, were henceforward to hold in free socage, which thus came to be the normal holding throughout England after the Restoration.^[66]

(3) Fee-farm was the name applied to lands held in return for services which were neither military nor agricultural, but consisted only of an annual payment in money. The “farm” thus indicates the rent paid, which apparently might vary without limit, although it was long maintained that a fee-farm rent must amount at least to one quarter of the annual value. This error seems to have been founded on a misconstruction of the Statute of Gloucester.^[67] Some authorities^[68] reject the claims of fee-farm to rank as a tenure separate from socage; although chapter 37 of Magna Carta seems to recognize the distinction.

(4) Frankalmoin is the tenure by which pious founders granted lands to the uses of a religious house. It was also the tenure on which the great majority of glebe lands throughout England were held by the village priests, the parsons of parish churches. The grant was usually declared to have been made in liberam eleemosinam or “free alms” (that is, as a free gift for which no temporal services were to be rendered).^[69] In Scots charters the return formally stipulated was preces et lacrymae (the prayers and tears of the holy men of the foundation for the soul of the founder).

(5) Grand serjeanty was a highly honourable tenure sharing the distinctions and the burdensome incidents of knight’s service, but distinct in this, that the tenant, in place of ordinary military duties, performed some specific 68office in the field, such as carrying the King’s banner or lance, or else acted as his constable or marshal or other household officer in the palace, or performed some important service at the coronation.^[70]

An often-quoted example of a serjeanty is that of Sir John Dymoke and his family, who have acted as the Sovereign’s champions at successive coronations from Richard II. to Queen Victoria, ready to defend the Monarch’s title to the throne, if questioned, by battle in the ancient form.

Grand serjeanties were liable to wardship and marriage, as well as to relief, but not, as a rule, to payment of scutage.^[71] William Aguilon, we are told by Madox,^[72] "was charged at the Exchequer with several escuages. But when it was found by Inquest of twelve Knights of Surrey that he did not hold his lands in that county by military tenure, but by serjeanty of finding a Cook at the King’s coronation to dress victuals in the King’s kitchen, he was acquitted of the escuages."

(6) Petty serjeanty may be described in the words of Littleton as “where a man holds his lands of our lord the king to yield to him yearly a bow or sword, or a dagger or a knife ... or to yield such other small things belonging to war.”^[73]

The grant of lands on such privileged tenures was frequently made in early days on account of the special favour entertained by the King for the original grantee, due, it might be, to the memory of some great service rendered at a critical juncture to the King’s person or interests. A few illustrative examples may be cited from the spirited description of a scholar whose accuracy can be relied upon. Serjeanties, as Miss Bateson 69tells us, "were neither always military nor always agricultural, but might approach very closely the service of knights or the service of farmers.... The serjeanty of holding the King’s head when he made a rough passage across the Channel, of pulling a rope when his vessel landed, of counting his chessmen on Christmas Day, of bringing fuel to his castle, of doing his carpentry, of finding his potherbs, of forging his irons for his ploughs, of tending his garden, of nursing the hounds gored and injured in the hunt, of serving as veterinary to his sick falcons, such and many other might be the ceremonial or menial services due from a given serjeanty."^[74]

In the days before legal definition had done its work, it must often have been difficult to say on which side of the line separating Petty Serjeanties from Grand Serjeanties any particular holding fell. Gradually, however, important and practical distinctions were established, making it necessary that the boundary should be defined with accuracy. In particular, the rule was established that Petty Serjeanties, while liable for relief, were exempt altogether from the burdensome incidents of wardship and marriage, which Grand Serjeanties shared with lands held by ordinary Barony or Knight’s service.^[75] Thus the way was prepared for the practical identification of the Petty Serjeanties with ordinary socage at a later date.

(7) Burgage, confined exclusively to lands within free boroughs, is mentioned as a separate tenure by Littleton,^[76] and his authority receives support from the words of chapter 37 of Magna Carta. Our highest modern authorities,^[77] however, consider that it never acquired sufficiently distinct characteristics to warrant its acknowledgment as such. They treat it rather as a special variety of socage, 70used where the tenants were the members of a corporation. If their opinion must be accepted for England, it follows that, from common antecedents, entirely different results have developed in Scotland and in England respectively. While, north of the Tweed, several of the well-established English tenures have failed to make good their right to separate recognition, burgage has established itself beyond a doubt. Even the levelling process consummated by the Conveyancing (Scotland) Act of 1874 has not entirely abolished its separate existence.

The explanation of such differences between English and Scottish usage easily suggests itself. When feudalism first took root, the various shades of distinction in the conditions of holding were exceedingly numerous, and merged into one another by imperceptible degrees. The work of definition came later, was essentially artificial in its nature, and assumed different forms in different lands.^[78]

These tenures, originally six or seven (according as we exclude or include burgage), have yielded to the unifying pressure of many centuries. Frankalmoin and Grand Serjeanty still exist, but rather as ghosts than realities; the others have all been swallowed up in socage, which has thus become practically identical with “free-hold.”^[79] This triumph of socage is the result of a long process. Fee-farm, burgage, and petty serjeanty, always possessing many features in common, were gradually assimilated in almost all respects, while a statute (12 Charles II. c. 24) transformed tenure in chivalry also into socage. The once humble socage has thus risen high, and now embraces most of the land of England.^[80]

71The interest of historians naturally centres round tenure by knight’s service, which is the very kernel of the feudal system. Lack of definition in the middle ages was a fruitful source of quarrel. For a century and more after the Norman Conquest, the exact amount and nature of the military services due by a tenant to his lord were left vague and undetermined. The early Norman Kings had gradually superseded the old Anglo-Saxon Crown tenants by new ones of Norman or French extraction, without formulating any code of regulations for the future. The whole of England had thus been carved into a number of estates—the larger known as honours or baronies, and the smaller as manors. Each Crown tenant (with two exceptions, of which the Conqueror’s favourite foundation of Battle Abbey was one) held his lands on condition of furnishing a certain number of fully armed and mounted soldiers, always ready to obey the King’s summons in the event of war. High authorities differ as to when and by whom the amount of each vassal’s service was fixed. The common view (promulgated by Prof. Freeman^[81] with his usual vehemence), attributes the allocation of specific service to Ranulf Flambard, the unscrupulous tool of William Rufus. Mr. J. H. Round^[82] has recently urged convincing reasons in support of the older view which attributes it to William I. Two facts, apparently, are certain: that within half a century from the Conquest each military tenant was burdened with a definite amount of knight’s service; and, further, that no formal record of the amount of such service was made at the time. There were, as yet, no written charters, and thus the possibility of disputes remained. Probably such grants would be made in full Curia, and the only record of the conditions would lie in the memory of the Court itself.

72Long before the date of Magna Carta, the various obligations had been grouped into three classes, which may be arranged according to their relative importance, as services, incidents, and aids. Under each of these three heads, disputes continually arose between the lord who exacted and the vassal who rendered them.^[83]

The very essence of the feudal relation between the King as overlord and the Crown tenant as vassal consisted in the liability of the latter to render “suit and service,” that is, to follow his lord’s banner in time of war, and to attend his court in time of peace. It will be more convenient, however, to reserve full consideration of these services until the comparatively uncomplicated obligations known as incidents and aids have been first discussed.

I. Feudal Incidents. In addition to “suit and service,” the lord reaped, at the expense of his tenants, a number of casual profits, which thus formed irregular supplements to his revenue. These profits, accruing, not annually, but on the occurrence of exceptional events, came to be known as “feudal incidents.” They were gradually defined with more or less accuracy, and their number may be given as six, viz.:

Reliefs, Escheats, Wardships, Marriages, Primer seisins, and Fines for Alienation.^[84]

73(a) Relief is easily explained. The fee, or feudum, or hereditary feudal estate, seems to have been the result of a gradual evolution from the old beneficium (or estate held merely for one lifetime), and that again from the older precarium (or estate held only during the will of the overlord). Grants of land, originally subject to revocation by the lord, had gradually attained fixity of tenure throughout the life of the original grantee; and, later on, they became transmissible to his descendants. The hereditary principle at last completely triumphed; the Capitulary of Kiersey (A.D. 877) is said to be the first authoritative recognition of the heir’s absolute right to succeed. The process was a gradual one, and it would seem that even after the Norman Conquest, this rule of hereditary descent was not established beyond possibility of dispute.^[85] This right of the heir to succeed always remained subject to one condition, namely, the payment of a sum of money known as “relief.” This was theoretically an acknowledgment that the new tenant’s right to ownership was incomplete, until recognized by his superior—a reminiscence of the earlier precarium from which the feudum had developed.

Relief, then, is the sum payable to a feudal overlord by an heir for recognition of his title to succeed the last tenant in possession. The amount remained long undefined, and the lord frequently asked exorbitant sums.^[86]

(b) Escheat, it has been said, "signifies the return of an estate to a lord, either on failure of issue from the tenant or upon account of such tenant’s felony."^[87] This lucid description conveys a good general conception of escheat; but it is inaccurate in at least two respects. It does not exhaust the occasions on which escheat occurs, and it errs in speaking of “the return” of an estate to a lord, when, more accurately, that estate had never left 74him, but always remained his property, subject only to a burden, which was now removed. In theory, the feudal grant of lands was always conditional; and when the condition was broken, the grant fell, and the lord found himself, automatically as it were, once more the absolute unburdened proprietor, as he had been before the grant was made. Thereafter, he held the land in demesne, unless he chose to make a new grant to another tenant. The word “escheat” was applied indifferently to the lord’s right to such reversions, and to the actual lands which had thus reverted. In warlike and unsettled times the right was a valuable one, for whole families might become rapidly extinct. When the last tenant left no heir, it was obvious that the original grant had exhausted itself. Similarly, when a landholder was convicted of felony, his blood became, in the phrase of a later day, attainted, and no one could succeed to any estate through him. If a man failed in the ordeal of water provided by the Assize of Clarendon in 1166 for those accused of heinous crimes, his estates also escheated to his lord. It is true that a complication arose when it was of treason that the tenant had been convicted. In that case the king, as the injured party, had prior rights which excluded those of the lord. The lands of traitors were forfeited to the Crown. Even in the case of felony the king had a limited right to the lands during a period which was strictly defined by Magna Carta.^[88]

The tenant’s felony and failure of issue were the two main grounds of escheat, but not the only ones; the goods of fugitives from justice and of those who had been formally outlawed also escheated, and Glanvill adds another case,^[89] namely, female wards guilty of unchastity (an offence which spoiled the king’s market). Failure to obey a summons to the feudal levy in time of war might also be made a ground of forfeiture.^[90]

Escheat was thus a peculiarly valuable right both to the Crown and to mesne lords. Its effect was simply 75this: one link in the feudal chain was struck out, and the links on either side were fitted together. If the defaulter was a Crown tenant, all his former sub-tenants, whether freeholders or villeins, moved up one rung in the feudal ladder and held henceforward directly of the king, who enjoyed the entire complexus of legal rights previously enjoyed by the defaulter in addition to those previously enjoyed by himself: rents, crops, timber, casual profits, and advowsons of churches falling vacant; jurisdictions and the profits of jurisdictions; services of villeins; reliefs, wardships, and marriages of freeholders as these became exigible.

The Crown, however, while taking everything the defaulter might have taken before default, must take nothing more—so at least Magna Carta^[91] provides. The rights and status of innocent sub-tenants must not be prejudiced by the misdeeds of their defaulting mesne lord.

(c) Wardships are described in the Dialogus de Scaccario as “escheats along with the heir” (escaeta cum herede).^[92] This expression does not occur elsewhere, but it would be impossible to find any description of wardship which throws more light on its nature and consequences. When the heir of a deceased tenant was unfitted to bear arms by reason of his tender years, the lands were practically, during his minority, without an effective owner. The lord accordingly treated them as temporarily escheated. During the interval of nonage, the lord entered into possession, drew the revenues, and applied them to his own purposes, subject only to the obligation of maintaining and training the heir in a manner suited to his station in life. Frequently, considerable sums were thus spent. The Pipe Roll of the seventeenth year of Henry II. shows how out of a total revenue of £50 6s. 8d. from the Honour of “Belveeir,” £18 5s. had been expended on the children of the late tenant.^[93] 76Wardship came to an end with the full age of the ward, that is, in the case of a military tenant, on the completion of his twenty-first year, “in that of a holder in socage on the completion of the fifteenth, and in the case of a burgess when the boy can count money, measure cloth, and so forth.”^[94] Wardship of females normally ended at the age of fourteen, "because that a woman of such age may have a husband able to do knight’s service."^[95]

All the remunerative consequences flowing from escheat flowed also from wardship—rents, casual profits, advowsons, services of villeins, and reliefs. Unlike escheats, however, the right of the Crown here was only temporary, and Magna Carta sought^[96] to provide that the implied conditions should be respected by the Crown’s bailiffs or nominees. The lands must not be wasted or exhausted, but restored to the young owner when he came of age in as good condition as they had been at the commencement of the wardship.

One important aspect of this right ought to be specially emphasized. The Crown’s wardship affected bishoprics as well as lay baronies, extending over the temporalities of a See between the death of one prelate and the instalment of his successor. Thus, it was to the king’s interest to place obstacles in the way of all appointments to vacant sees, since the longer the delay, the longer the Exchequer drew the revenues and casual profits.^[97]

77This right was carefully reserved to the Crown, even in the very comprehensive charter in which John granted freedom of election, dated 21st November, 1214.^[98]

(d) Marriage as a feudal incident belonging to the lord is difficult to define generally, since its meaning changed. Originally it seems to have implied little more than the right of a lord to forbid an heiress, holding a fief under him, to marry a personal enemy, or some one otherwise unsuitable. Such veto was only reasonable, since the husband of the heiress would become the owner of the fee and the tenant of the lord. This negative right had almost necessarily a positive side; the claim to concur in the choice of a husband gradually expanded into an absolute right of the lord to dispose by sale or otherwise of the lands and person of his female ward. The prize might go as a bribe to any unscrupulous gentleman of fortune who placed his sword at the King’s disposal, or it might be made the subject of auction to the highest bidder. The lady passed as a mere adjunct to her own estates, and ceased, strictly speaking, to have any voice in choosing a partner for life. She might protect herself indeed against an obnoxious husband by out-bidding her various suitors. Large sums were frequently paid for leave to marry a specified individual or to remain single.

This right seems, at some uncertain date, to have been extended from females to males, and instances of sums thus paid occur in the Pipe Rolls. It is difficult at first sight to imagine how the Crown found a market for such wares as male wards; but probably wealthy fathers were ready to purchase desirable husbands for their daughters. Thus in 1206 a certain Henry of Redeman paid forty marks for the hand and lands of the heir of Roger of Hedon, “ad opus filiae suae,”^[99] while Thomas Basset secured a prize 78in the person of the young heir of Walerand, Earl of Warwick, to the use of any one of his daughters.^[100] This extension to male heirs is usually explained to have been founded on a strained construction of chapter 6 of Magna Carta, but the beginnings of the practice can be traced much earlier than 1215.^[101] The lords’ right to sell their wards was recognized and defined by the Statute of Merton, chapter 6. The attempts made to remedy some of the most serious abuses of the practice may be read in Magna Carta.^[102]

Mr. Hallam^[103] considers that “the rights, or feudal incidents, of wardship and marriage were nearly peculiar to England and Normandy,” and that the French kings^[104] never “turned this attribute of sovereignty into a means of revenue.”

(e) Primer Seisin, which is usually regarded as a separate incident, and figures as such in Blackstone’s list, is perhaps better understood, not as an incident at all, but rather as a special procedure—effective and summary—whereby the Crown could enforce the four incidents already described. It was an exclusive prerogative of the Crown, denied to mesne lords.^[105] When a Crown tenant died, the King’s officers had the right to enter upon immediate possession, and to exclude the heir, who could not touch his father’s lands without specific permission from the Crown. He had first to prove his title by inquest, to give security for any balance of relief and other debts unpaid, and to perform homage.^[106] It will be readily seen what a strong strategic position all this assured to the 79King in any disputes with the heir of a dead vassal. If the Exchequer had doubtful claims against the deceased, its officials could satisfy themselves before admitting the heir to possession. If the heir showed any tendency to evade payment of feudal incidents, the Crown could checkmate his moves. If the succession was disputed, the King might favour the claimant who pleased or paid him most; or, under colour of the dispute, refuse to disgorge the estate altogether—holding it in custody analogous to wardship, and meanwhile drawing the profits. If the son and heir happened to be from home when his father died, he would probably experience great difficulty, when he returned, in forcing the Crown to restore the estates. Such was the experience of William Fitz-Odo on returning from Scotland in 1201 to claim his father’s carucate of land in Bamborough.^[107] Primer seisin was thus not so much a separate incident, as a right peculiar to the Crown to take summary measures for the satisfaction of all incidents or other claims against a deceased tenant or his heir. Magna Carta admitted this prerogative whilst guarding against its abuse.^[108]

(f) Fines for alienation occupy a place by themselves. Unlike other incidents already discussed, they became exigible not on the tenant’s death, but on his wishing to part with his estate to another during his own lifetime, either as a gift or in return for a price. How far could he effect this without consent of his lord? This was, for many centuries, a subject of frequent and heated disputes, often settled by compromises, in which the tenant 80paid a fine to the lord for permission to sell. Such fines are payable at the present day in Scotland (under the name of “compositions”) from feus granted prior to 1874; and, where no sum has been mentioned in the Feu Charter, the law of Scotland defines the amount exigible as one year’s rent. John’s Magna Carta contains no provisions on this subject. Disputes, long and bitter, took place later in the thirteenth century; but their history is irrelevant to the present inquiry.^[109]

II. Feudal Aids. The feudal tenant, in addition to fulfilling all the essentials of the feudal relation and also all the burdensome incidents already enumerated, was expected to come to the aid of his lord in any special crisis or emergency. The help thus rendered was by no means reckoned as a payment to account of the other obligations, which had also to be paid in full. The additional sums thus given were technically known as “aids.” At first, the occasions on which these might be demanded were varied and undefined. Gradually, however, they were limited to three. Glanvill,^[110] indeed, mentions only two, namely, the knighting of the overlord’s eldest son, and the marriage of his eldest daughter; but he intends these, perhaps, merely as illustrations rather than as forming an exhaustive list. Before the beginning of the thirteenth century the recognized aids were clearly three—the ransoming of the king and the two already mentioned. This understanding was embodied in Magna Carta.^[111]

A tradition has been handed down from an early date, that these aids were in reality voluntary offerings made by the tenant as a mark of affection, and forming no part of his legal obligations.^[112]

81This plainly became, however, a legal fiction, as regarded the aids acknowledged by customary law; the tenant dared not refuse to pay the recognized three. As regarded any further payments, it was by no means a fiction. When the Crown desired to exact contributions for any other reason, it required to obtain the consent of the commune concilium. This, for example, was done by Henry III. before taking an aid on the marriage of his eldest sister. The importance of the necessity for such consent can hardly be exaggerated in its bearing on the origin of the rights of Parliament.

The Great Charter, while confirming the tacit compromise arrived at by custom, whereby only the three aids might be taken without consent of the baronage, left the amount of such aids undefined, contenting itself with the extremely vague provision that they should be “reasonable.” Examples of such payments, both before and after the Charter, are readily found in the Exchequer Rolls. Thus, in the fourteenth year of Henry II., that king took one mark per knight’s fee on marrying his daughter Maud to the Duke of Saxony. Henry III. took 20s. and Edward I. 40s. for a similar purpose. For Richard’s ransom, 20s. had been exacted from each knight’s fee (save those owned by men actually serving in the field); and Henry III. took 40s. in his thirty-eighth year at the knighting of his son. Probably there existed, at an early date, some understanding as to the limits within which “reasonableness” should be reckoned, but the amount was never stated in black and white before the third year of Edward I. The Statute of Westminster I.^[113] fixed the “reasonable” aid payable, not to the Crown but, to mesne lords at 20s. per knight’s fee, and 20s. for every estate in socage of £20 annual value. This rate, it will be observed, is one-fifth of the knight’s relief.^[114] The Crown, in thus enforcing “reason” on mesne lords, seems never to have intended that the same limit should hamper its 82own dealings with Crown tenants, but continued to exact larger sums whenever it thought fit.^[115]

Thus £2 per fee was taken in 1346 at the knighting of the Black Prince. A Statute of Edward III.^[116] at last extended to the Crown the same measure of “reasonableness” as had been applied three-quarters of a century earlier to mesne lords. The last instances of the exaction of aids in England occur as late as the reign of James I., who, in 1609, demanded one for the knighting of the ill-fated Prince Henry, and in 1613 another for the marriage of his daughter Elizabeth to the Prince of Orange.

III. Suit and Service. This phrase expresses the essential obligations inherent in the very nature of the feudal relation. It may be expanded (as regards tenure in chivalry) into the duty of attendance at the lord’s court, whether it met for administrative or judicial purposes, or for reasons of mere display, and the further duty of military service under that lord’s banner in the field. Suit, or attendance at court, had ceased to be an urgent question before the reign of John. Indeed, the barons, far from objecting to be present there, were gradually approaching the modern conception, which regards it as a privilege rather than a burden to attend the commune concilium—the embryo Parliament—of the King. They urged, in especial, that only in a full feudal court, at which each great Crown tenant had a right to appear, could any one of their number be judged in a plea involving loss of lands or of personal status.^[117]

It was far otherwise with the duties of military service, which were rendered every year more unwillingly, partly because of the increased frequency of warlike expeditions, partly because of the greater cost of campaigning in distant lands like Poitou, partly because the English barons were 83completely out of sympathy with John’s foreign policy and with him. We have seen that the want of definition and looseness of practice in the reign of William the Conqueror left to future ages a legacy fertile in disputes. William I. and his barons lived in the present; and the present did not urgently call for definition. Therefore, the exact duration of the military service to be rendered, and the exact conditions (if any) on which exemption could be claimed, were left originally quite vague. Such carelessness is easily explained. Both Crown and barons hoped that by leaving matters undefined, they would be able to alter them to their own advantage. This policy was sure to lead to bitter quarrels in the future, but circumstances delayed their outbreak. The magnates at first readily followed William to the field wherever he went, since their interests were identical with his, while warfare was their normal occupation.

The exact amount of military service was gradually fixed by custom, and both sides acquiesced in reckoning the return due (servitium debitum) for each knight’s fee or scutum as the service of one fully armed horseman during forty days. There were still, however, innumerable minor points on which disputes might arise, and these remained even in 1215. Indeed, although several chapters of the Great Charter attempted to settle certain of these disputed points, others were left as bones of contention to subsequent reigns: for example, the exact equipment of a knight; the liability to serve for more than forty days on receiving pay for the extra time; what extent of exemption (if any) might be claimed by churchmen holding baronies on the ground that they could not fight in person; how far a tenant might compromise for actual service by tendering money; whether attendance and money might not both be refused, if the King did not lead his forces in person; and whether service was equally due from all estates for foreign wars as for home ones.^[118]

84Such difficulties were increased, as time went on, rather than removed. The Conqueror’s followers had possessed, like their lord, estates on both sides of the Channel: his wars were theirs. Before John’s reign, these simple relations had become complicated by two considerations. By forfeitures and the division of inheritances between sons of one father, holders of English fiefs and holders of Norman fiefs had become distinct; the English barons had in 1213 nothing at stake in the Crown’s selfish schemes of aggrandisement or defence. The England of John Lackland, like the England of William of Orange, objected to be entangled in foreign wars in the interests of foreign possessions of the King. On the other hand, the gradual expansion of the dominions of the wearers of the English Crown increased the number of their wars with the number of their interests, and increased, too, the trouble and expense of each expedition. The small wars with Wales and Scotland formed a sufficient drain on the resources of English magnates without their being summoned in intermediate years to fight in Maine or Gascony. The greater number of campaigns might well be reckoned a breach of the spirit of the original agreement.

Were the barons bound to follow John in a forlorn attempt, of which they disapproved, to recover his lost fiefs from the French Crown? Or were they bound to support him only in his legitimate schemes as King of England? Or were they, by way of compromise, liable for services in the identical possessions held by William the Conqueror at the date when their ancestors first got their fiefs—that is, for wars in England and Normandy alone? Tenderness for legal subtleties or strict logic could hardly be expected from the malcontents of the northern counties, smarting under a dumb sense of wrong. Despising 85all nice definition, they declared roundly in 1213 that they owed no service whatsoever out of England.^[119] This extreme claim put them clearly in the wrong, since John had many precedents to the contrary ready to lay before them. When the King, on his return from his unfortunate expedition in 1214, demanded a scutage from all who had not followed him to Poitou, the malcontents declared that they had no obligation either to follow him out of the kingdom, or to pay a scutage in lieu thereof.^[120] Pope Innocent was probably correct in condemning this contention as founded neither on English law nor on feudal custom.^[121] There is some ground for believing that a compromise was mooted on the basis that the barons should agree to serve in Normandy and Brittany, as well as in England, on being exempted from fighting elsewhere abroad.^[122]

A definite understanding on this vital question was never arrived at—not even on paper, since chapter 16 of Magna Carta contented itself with the bald provision that existing services were not to be increased (without defining what these were). This was merely to shelve the difficulty: the dispute went on under varying forms and led to a violent clashing of wills in the unseemly wrangle between Edward I. and his Constable and Marshal, dramatized in a classic passage by Walter of Hemingburgh.^[123] Strangely enough, the Confirmatio Cartarum of 1297, which was, in part, the outcome of this later quarrel, omits (like Magna Carta itself)^[124] all reference 86to foreign service. The total omission from both charters of all mention of the chief cause of dispute is noteworthy. It must be remembered, however, that the question of liability to serve abroad had practically resolved itself into that of liability to scutage, and that chapters 12 and 14 of the Charter of 1215 provided an adequate check on the levy of all scutages; but this is a subject of crucial importance, which requires separate and detailed treatment.

IV. Scutage. The Crown did not always insist on actual personal service, but was frequently willing to accept a commutation in the form of a money payment. This subject of scutage is one of the most vexed of questions; all received opinions of yesterday having to-day been thrown into the melting pot. Serious attempts constructively to restate the whole subject have hardly been made; and no conclusions have yet received general acceptance.

Three modifications, however, of the theories of Stubbs and Freeman, once universally accepted, seem likely to be soon established: (1) that “scutage” is an ambiguous term with a vague general meaning as well as a narrow technical meaning; (2) that the importance of the changes introduced by Henry II. in 1156 and 1159 has been much exaggerated; and (3) that at a later time, probably during John’s reign, scutage changed its character. It ceased to be normally a commutation of service, since it was not infrequently exacted by the Crown in addition to military service actually performed. Each of these propositions requires explanation.

“Scutagium,” or “shield-money,” often means, it is true, a specific sum of so much per knight’s fee (normally twenty shillings) accepted by the King in lieu of the personal service in his army due by his tenants in capite. Thus it is, as Dr. Stubbs explains, “an honourable commutation for personal service”;^[125] but it is also loosely used^[126] to denote any exaction whatsoever assessed on a feudal basis (that is, taken exclusively from holders of fiefs) irrespective of the 87occasion of its levy. Thus, money taken in name of one of the three feudal aids is sometimes described as a scutage; and other instances might be cited.

Again, learned opinion tends towards the belief that Henry II. made no radical or startling alteration. Professor Freeman, Dr. Stubbs, and their adherents familiarized a bygone generation of historians with the view that one of Henry’s most important reforms was to allow his Crown tenants at their discretion to substitute payments in money for the old obligation of personal service in the field—this option being granted to ecclesiastics in 1156, and to lay barons in 1159. Such a theory had a priori much to recommend it. A measure of this nature, while giving volume and elasticity to the resources of the Crown, was calculated subtly to undermine the basis of the feudal tie; but Henry, farseeing statesman as he was, could not discard the ideals of his own generation. No evidence that he made any sweeping change is forthcoming. His grandfather, Henry I., is shown by the evidence of extant charters to have accepted money in place of the services of knights when it suited him (notably from church fiefs in 1109),^[127] and there is no evidence (direct or indirect) to show that the grandson accepted such commutation when it did not suit him. The conclusions formulated, with his usual energy, by Mr. J. Horace Round, lie implicitly in the examples from the Pipe Rolls stored in the great work of Madox. From these it would appear that the procedure of the Exchequer of the great Angevin and his two sons might be explained in some such propositions as these:

(a) The option to convert service into scutage lay with the Crown, and not with the tenants, either individually or as a body. When the King summoned his feudal army no baron could (as Professor Freeman would have us believe) simply stay away under obligation of paying a small fixed sum to the Exchequer. On the contrary, Henry and his sons jealously preserved the right to insist 88on personal service whenever it suited them; even efficient substitutes were not always accepted, much less money payments.

(b) If the individual wished to stay at home he required to make a special bargain to pay such fine as the King agreed to accept—and sometimes he had to send a substitute in addition. The Pipe Rolls show many such payments by stay-at-homes ne transfretent or pro remanendo ab exercitu. Thus, in the twelfth year of John’s reign a Crown tenant paid a fine “that he might send two knights to serve for him in the army of Ireland.”^[128]

Sometimes, indeed, Henry II. might announce that payments at a certain rate would be accepted generally in lieu of service, but this was when it suited him, not when it suited his military tenants. In this connection twenty shillings per fee became recognized as a usual, though by no means a necessary, rate.

(c) In the ordinary case, if the tenant in chivalry neither went in person nor obtained leave from the Crown to stay away, he was in evil plight. Defaulters were “in mercy”; they sometimes forfeited their entire estates to the Crown,^[129] and might be glad to accept such terms of pardon as a gracious King condescended to hold out to them. Sometimes, it is true, quite small amercements were inflicted; the Abbot of Pershore in 1196 escaped with an amercement of 40s.^[130] Such leniency, however, was exceptional, and the result of special royal clemency.

The right to determine the amount of amercements to be taken lay within the province of the Barons of the Exchequer, who also judged whether or not lands had escheated by default.

Henry II. seems to have levied money in name of scutage only when actually at war—on seven occasions in all during a reign of thirty-five years; and only once at a rate exceeding 20s., if we may trust Mr. Round,^[131] and 89that when he was putting forth a special effort against Toulouse. Richard I., with all his rapaciousness, levied, apparently, only four scutages during ten years, and the rate of 20s. was never exceeded even in the King’s hour of urgent need,—in 1194, when the arrears of his ransom had to be paid and preparations simultaneously made for war in Normandy.

At John’s accession, then, three rules might be regarded as having all the prescriptive force of a long unbroken tradition, namely, (1) that scutage was a reserve for extraordinary emergencies, not a normal yearly burden; (2) that the recognized maximum was 20s. per knight’s fee, while a lower rate (13s.4d. and even 10s.) had occasionally been accepted; and (3) that the payment of scutage to the King at a rate previously fixed by him acted as a complete discharge of all obligations due for that occasion.

If it can be proved that John, almost from his accession, deliberately altered all three of these well-established rules, and that too in the teeth of the keen opposition of a high-spirited baronage whose members felt that their pride and prestige as well as their money-bags were attacked, a distinct step is taken towards understanding the crisis of 1215. Such knowledge would explain why a storm, long brewing, burst in John’s reign, neither sooner nor later; and even why some of the disreputable stories told by the chroniclers and accepted by Blackstone and others, found inventors and willing believers.

It is here maintained that John did make changes in all three directions; and, further, that the incidence of this increase in feudal burdens was rendered even more unendurable by two considerations:—because at his accession there remained unpaid (particularly from the fiefs of the northern knights) large arrears of the scutages imposed in his brother’s reign,^[132] and because in June, 1212, John drew the feudal chain tight by a drastic and galling measure. In that month he instituted a strict inquest into the amount of feudal service exigible from every estate in 90England, to prevent any dues escaping his wide net, and to revive all services and payments that had lapsed or were in danger of lapsing.

That he made the first two changes becomes a certainty from a glance at the table of scutages actually extorted during his reign, as these are here copied from a list compiled by a writer of authority who has no special theory to support,^[133] viz.:

First scutage of reign— 1198-9— 2 marks per knight’s fee.

Second " " 1200-1 2 " "

Third " " 1201-2 2 " "

Fourth " " 1202-3 2 " "

Fifth " " 1203-4 2 " "

Sixth " " 1204-5 2 " "

Seventh " " 1205-6 20s. "

Eighth " " 1209-10 2 marks "

Ninth " " 1210-11 2 " "

Tenth " " 1210-11 20s. "

Eleventh " " 1213-14 3 marks "

It will be seen that, in the very first year of his reign, John took a scutage, and that, too, at a rate above the established normal, at two marks per scutum (only once equalled, thirty years before, and then under special circumstances). Even one such exaction must have made the already sulky Crown tenants look askance.

Next year John wisely allowed them breathing space; then without a break in each of the third, fourth, fifth, sixth and seventh years of his reign, scutages were extorted in quick succession at the high rate of two marks. If John meant to establish this as a new normal rate, he did so not without some show of reason, since that would exactly pay the wages of a knight at 8d. per diem (the rate then current), for a period of forty days (the exact term recognized by public opinion as the maximum of compulsory feudal service).

Fines, in addition to this scutage of two marks, were 91apparently exacted from those who had not made the necessary compromise for personal service in due time.^[134]

These scutages were collected with increasing difficulty, and arrears gradually accumulated; but the spirit of opposition increased even more rapidly. In 1206, apparently, the breaking point was almost reached.^[135] Accordingly, in that year, some slight relaxation was allowed—the annual scutage was reduced from two marks to 20s. John’s needs, however, were as great as ever, and would prevent all further concessions in future years, unless something untoward happened. Something untoward did happen in the summer of 1207, when John quarrelled with the Pope. This event came in time, not as John thought to prevent, but, as the sequel proved, merely to postpone, the crisis of the quarrel with the baronage. John had, for the time being, the whole of the confiscated property of the clergy in his clutches. The day of reckoning for this luxury was still far distant, and the King could meanwhile enjoy a full exchequer without goading his Crown tenants to rebellion. For three years no scutage was imposed. In 1209, however, financial needs again closed in on John, and a new scutage of two marks was levied; followed in the next year actually by two scutages, the first of two marks against Wales, and the second of 20s. against Scotland. John never knew when to stop. These three levies, amounting to a total of five-and-a-half marks per fee within two years, strained the tension almost to breaking point.

During the two financial years immediately following (Michaelmas, 1211, to Michaelmas, 1213) no scutage was imposed. John, however, although he thus a second time relaxed the tension, had no intention to do so for long. On the contrary, he determined to ascertain if scutages could not be made to yield more in the future. By writs, dated 1st June, 1212, he instituted a great Inquest throughout 92the land. Commissioners were appointed to take sworn verdicts of local juries as to the amount of liability due by each Crown vassal. Mr. Round^[136] considers that previous writers have unaccountably ignored the importance of this measure, “an Inquest worthy to be named in future by historians in conjunction with those of 1086 and 1166,”^[137] and describes it as an effort “to revive rights of the Crown alleged to have lapsed.” It is possible that John, by this Inquest of 1212, sought also (unsuccessfully, as the sequel proved) to do what Henry had done successfully in 1166—that is, to increase the amount of knights’ fees on which each Crown tenant’s scutage was assessed by adding to the previous total the number of knights recently enfeoffed.

John clearly intended by this Inquest, the returns to which were due on the 25th June, 1212, to prepare the necessary machinery for wringing the uttermost penny out of the next scutage when occasion for one again arose. That occasion came in 1214.

Up to this date, even John had not dared to exact a rate of more than two marks per knight’s fee; but the weight of his constant scutages had been increased by the fact that he sometimes exacted personal services in addition, and that he inflicted crushing fines upon those who neither went nor arranged beforehand terms of composition with the King.^[138]

93Thus gradually and insidiously throughout the entire reign of John, the stream of feudal obligations by many different channels steadily rose until the barons feared that nothing of their property would be saved from the torrent. The normal rate of scutage had been raised, the frequency of its imposition had been increased, the conditions of foreign service had become more burdensome, and the objects of foreign expeditions more unpopular; while attempts were sometimes made to exact both service and scutage in the same year. The limit of the barons’ endurance was reached when, on 26th May, 1214, John, already discredited by his unsuccessful expeditions in Poitou, soon to be followed by the utter overthrow of his allies at Bouvines, issued writs for a scutage at the unheard-of rate of three marks, grounded doubtless on the inquest of 1212 and unusually far-reaching in the subjects which it embraced.^[139]

Then the final crash came; this writ was like a call to arms—a call not to follow the King’s banner, but to fight against him.

III. Royal Justice and Feudal Justice.

A well-known aphorism of legal text-books, couched in language unusually figurative, declares the King to be “the sole fountain of justice.” Correct as it is to apply this metaphor to the present state of the constitution, it would be an anachronism and a blunder to transport it into the thirteenth century. In John’s reign there still were—as there had been for centuries—not one, but many competing jurisdictions. It was by no means a foregone conclusion that the King’s Courts were the proper tribunals to which a wronged individual must repair to seek redress. On the contrary, the great bulk of the rural population, the villeins, had no locus standi except in the court of the manor to which they belonged; while the doors of the royal Courts had been closed against the ordinary freeman previous to the reign of 94Henry II. Royal justice was still the exception, not the rule. Each man must seek redress, in the ordinary case, in his own locality. To dispense justice to the nation at large was no part of the normal business of a medieval King.

I. Rival Systems of Law Courts. In the thirteenth century, there existed not one source of justice, but many. Rival courts, eagerly competing to extend their own sphere of usefulness and to increase their own fees, existed in a bewildering multitude. Putting aside for the moment the Courts Christian, the Borough Courts, the Forest Courts, and all exceptional or peculiar tribunals, there existed three great rival systems of jurisdiction which may be named in the order in which they became in turn prominent in England.

(1) Local or District Courts. Justice was originally a local product, and administered in rude tribunals, which partook more or less of a popular character. Each shire had its council or assembly for hearing pleas, known as a “shire-moot” in Anglo-Saxon days, and usually as a “comitatus” after the Norman Conquest; while each of the smaller districts subdividing the shire, and forming units of administration for purposes of taxation, defence, justice, and police, had a moot or council of its own, serving as a court of law, to which the inhabitants of the various villages brought their pleas in the first instance. These smaller districts were known as hundreds in the south, and as wapentakes (a name of Danish derivation) in the north.

The theory generally received is that all freemen were originally suitors in the courts of the shire and the hundred, and that the whole body of those present, the ordinary peasant (“ceorl”) equally with the man of noble blood (“eorl”), took an active part in the proceedings, pronouncing (or, at least, concurring in) the judgments or dooms there declared; but that, as time progressed, the majority of the Anglo-Saxon ceorls sank to the half-servile position of villeins—men tied for life to the soil of the manor, and 95passing, like property, from father to son. These villeins, although still subjected to the burden of attendance, and to some of the other duties of their former free estate, were deprived of all those rights which had once formed the counterpart of the obligations. Another school of historians, it is true, denies that the mass of the population, even in very early times, ever enjoyed the right to any active share in the dispensation of justice. It is unnecessary here to attempt a solution of these and many other intricate problems surrounding the composition and functions of the courts of shire and hundred; or to discuss the still more vexed question how far the small assembly of the villagers of each township is worthy to be reckoned a formal court of law. It is sufficient to emphasize the importance of the existence from early times of a complete network of courts, each dispensing justice for the people of its own district.

(2) Feudal Courts. Centuries before the Norman Conquest, this system of popular or district justice found itself confronted with a rival scheme of jurisdictions—the innumerable private courts belonging to the feudal lords of the various estates into which the whole of England had been divided. This new system of private tribunals (known indifferently as feudal courts, manorial courts, seignorial courts, or heritable jurisdictions) slowly but surely, such is the orthodox view generally, although not universally accepted, gained on the older system of popular courts of shire, hundred, and wapentake.^[140]

Practically every holder of land in England came to be also the holder of a court for the inhabitants of that land. The double meaning of the word “dominus” illustrates the double position of the man who was thus both owner and lord.^[141] In the struggle between two schemes of justice, the 96tribunals of the feudal magnates easily triumphed, but never absolutely abolished their rivals. The earlier popular courts still lived on; but the system of district justice which had once embraced the whole of England was completely honeycombed by the growth of the feudal courts. As each once-free village passed under the domination of a lord, and gradually became a manor or embryo-manor, the village-moot (with such rudimentary authority as it may originally have possessed) gave way before a new manorial court endowed with much wider powers and with more effective sanction for enforcing them. Further, as complete hundreds fell under the control of specially powerful magnates, the entire courts of these hundreds were replaced by or transformed into feudal courts; franchises thus took the place of many of the old popular moots. Still, the older system retained possession of part of the disputed ground, thanks to the protection given it in its hour of need by the Crown. A great majority of the hundreds never bowed to the exclusive domination of any one lord, and the courts of the shires were jealously guarded by the Norman Kings against the encroachment of even the most powerful of barons. It is true that they only escaped subjection to a local landowner in order to fall under the more powerful domination of the Crown. Yet the mere fact that they continued in existence acted at least as a check on the growth of the rival system of seignorial tribunals.

Although it was the policy of the Norman Kings to prevent their barons from gaining excessive powers of jurisdiction, it was by no means their policy to oppose these jurisdictions altogether. On the contrary, the Conqueror and his sons were glad that order should be enforced and justice administered, even in a rough-and-ready manner, in those districts of England whither the Crown’s arm was not long enough to reach, and where the popular courts were likely to prove inefficient. Thus, the old system and the new existed side by side; it was to the interest of the central government to play off the one against the other.

In later days (but not till long after Magna Carta) each 97manorial tribunal split into three distinct courts, according to the class of pleas it was called upon to try. Later writers distinguish absolutely from each other, the Court Baron, settling civil disputes between the freeholders of the manor; the Court Customary, deciding non-criminal cases among the villeins; and the Court Leet, a petty criminal court enforcing order and punishing small offences. The powers of these courts might vary, and in many districts the jurisdiction over misdemeanours belonged not to the steward of the lord of the manor, but to the sheriff in his half-yearly Circuits or “Tourns” through the county. In the imperfectly feudalized districts the Tourn of the sheriff, as the representative of the Crown, performed the same functions as the Court Leet performed within the territories of a franchise.

(3) Royal Courts. Originally, the King’s Court had been merely one feudal court among other feudal courts—differing in degree rather than in kind from those of the great earls or barons. The King, as a feudal lord, dispensed justice among his feudal tenants (whether barons and freemen or only servile dependents), just as any baron or freeman dispensed justice among his tenants, bond or free. No one dreamed, in the time of the Norman Kings, that the Curia Regis would or could undertake the enormous labour of dispensing justice for the whole nation (or even of supervising the courts which did dispense it). Each individual must, on the contrary, look for the redress of wrongs either to the court of the people of his own district, or to the court of his lord. Royal justice for all (in the modern sense) was simply impossible. The monarchy had no machinery at command for effecting this. The task was a gigantic one, which no Anglo-Saxon King, which not even William I., could possibly have undertaken. No attempt in this direction was made by the Crown until the reign of Henry II., who was placed in a position of unprecedented power, partly by circumstances, but chiefly by his great abilities. Even he, born reformer as he was, would never have increased 98so greatly the labours of government, if he had not clearly seen how enormously the change would enhance both the security of his throne and the revenue of his exchequer.

In normal circumstances, then, prior to the Angevin period, the King’s Court was merely a tribunal for transacting the king’s own business, or for holding pleas between the Crown’s own immediate tenants. Even from an early date, however, the business of the monarch, from the mere fact that he was lord paramount, was necessarily wider than the business of any mesne lord. In a dim way, too, it must have been apparent from the first, that offences against the established order were offences also against the king, and that, therefore, to redress these was the king’s business competent in the King’s Courts. Further, the Sovereign’s prerogative quickly waxed strong, and enabled him to give effect to his wishes in this as in other matters. The Crown asserted a right (while admitting no corresponding duty) to investigate any pleas of special importance, whether civil or criminal. Still, up to the Norman Conquest, and thereafter under William and his sons, royal justice had made no deliberate attempt to become national justice, or to supersede feudal justice. Each kept to its recognized province. The struggle between the two began only with the reforms of Henry II.^[142]

Thus the three great systems of jurisdiction, popular justice, feudal justice, and royal justice (each depending on a different principle) succeeded each other, on the whole, in the order in which they are here named. Yet the sequence is in some ways logical rather than chronological. No absolute line can be drawn, showing where 99the supremacy of one principle ended and that of the next began. For centuries, all three co-existed, and struggled for the mastery. The germs of manorial jurisdiction may have been present from an early date. Shire-courts and hundred courts alike were continually in danger of falling under the domination of powerful local magnates. Yet the shire-courts were successful in maintaining till the last (thanks to royal favour) their independence of the manorial jurisdictions and their lords; while only a proportion of the hundred courts fell into bondage.

The royal courts, again, exercised an important jurisdiction from the very foundation of the monarchy; and the king in person, or by deputy, from an early date, withdrew special causes from the County Courts, and also interfered with manorial franchises. Finally, the Courts Baron were never abolished, but only silently undermined by the policy of Henry II. and his successors, until they gradually sank into decrepitude without really ceasing to exist.

With these caveats, however, the three systems may be regarded, in some measure, as following one another in the order named:—popular justice, feudal justice, royal justice.

II. Legal Procedure. The procedure adopted in litigation in Anglo-Saxon and Norman times was similar in essentials in all three classes of tribunals, and differed materially from the practice of courts of law at the present day. Some knowledge of the more glaring contrasts between ancient and modern procedure may here be profitably discussed, not only on account of the interest inherent in the subject, but also because it will conduce to an understanding of several otherwise obscure provisions of Magna Carta.

Avoiding technical language, and eliminating special procedure peculiar to any one court or country, the principal stages in a normal litigation in a modern court of law may be given briefly as follows:

(1) On the complaint of the party aggrieved—the plaintiff—a summons, or writ, is issued by an officer of 100the court. Proceedings are opened by the command addressed to the defendant to appear in court and answer what is alleged against him.

(2) Each party lodges written statements of his facts and pleas—that is, of the circumstances of the case as they appear to him (or such of them as he hopes to bring evidence to prove)—on which he founds his claim or his defence, and of the legal principles he intends to deduce from these circumstances. When these statements of facts and pleas have been revised and adjusted, the complete data are now before the court; each party has finally stated what he considers essential to his case.

(3) Proof is, in due course, led; that is, each party is afforded an opportunity of proving such facts as he has alleged (and as require proof through the denial of his opponent). This he may do by documents, witnesses, or otherwise. Each party has the further privilege of shaking his opponent’s evidence by cross-examination.

(4) The next important stage is the debate, the main object of which is to establish by legal arguments the pleas founded on; to deduce the legal consequences inherent in the facts which have been proved.

(5) Finally, the judge gives his decision. He has to determine, after weighing the evidence led by either party, what facts have really been established, and how far the various pleas of plaintiff and defendant respectively are implied in these facts. A considerable amount of thought and reasoning of such a kind as can be successfully performed only by a highly trained legal mind is thus necessary before the final decree or sentence can be pronounced by a judge in a modern court of law.

A trial in Anglo-Saxon and early Norman times stands in notable contrast to all this in almost every essential of its stages and procedure, and even more radically in the spirit which pervades the whole. Thus, the proceedings, from first to last, were purely oral, there being no original writ or summons, no written pleadings, and no record kept of the decision except in the memories 101of those present. The functions of “the judges” were entirely different, and demanded no previous professional or legal training, since they were not required either to weigh a mass of evidence or to determine the bearing of subtle legal arguments, but merely to see fairplay, and to decide, according to simple rules, well established by centuries of custom, by what test the allegations of plaintiff and defendant were respectively to stand or fall. Finally, the arrangement of the stages of the litigation was entirely different. It is with something of a shock that the modern lawyer learns that in civil and criminal causes alike “judgment” invariably preceded “trial.” Reflection will soon convince him that each of these words had in the Middle Ages a meaning different from what it bears to-day. These ancient meanings can be best understood by following the stages of the old procedure.

(1) The initial difficulty was to obtain the presence of the defendant in court, since there existed a strange reluctance either to compel his attendance or to allow judgment to pass against him by default. No initial writ was issued commanding him to appear; almost endless delays were allowed.

(2) When both parties had been, after many adjournments, actually brought face to face before the court, the statements alike of the claim and of the defence were made verbally and in set formulae, the slightest slip or stumble in the words of which involved complete failure. This is merely one illustration of the tremendously formal and technical nature of early legal procedure common to all half-developed systems of jurisprudence.

(3) Before the plaintiff could put the defendant finally on his defence, he required to show some preliminary presumption of the probability or bona fides of his case. This he usually did by producing two friends ready to substantiate his claim, known sometimes as his “suit” (Latin secta), or his “fore-witnesses.” Their evidence was not weighed against the “proof” afterwards led by the 102defendant; its object was merely to warrant the Court in demanding “proof” from the latter at all.^[143]

(4) Then came the judgment—the chief or “medial” judgment, so called to distinguish it from the less important final judgment or decree which came at a later stage. This medial judgment or “doom,” to use the Anglo-Saxon word, partook in no respect of the nature of the judgment of a modern tribunal. It came before the proof or trial, not after it. It consisted indeed in decreeing whether or no, on the strength of the previous procedure, the defendant should be put to his proof at all; and if so, what “proof” should be demanded.

Now, the exact test to be appointed by the court varied somewhat, according to circumstances, but long-established custom had laid down with some exactitude a rule applicable to every case likely to occur; and, further, the possible modes of proof were limited to some four or five at the outside. In Anglo-Saxon times, these were mainly compurgation, ordeal, witnesses (whose functions were, however, widely different from those of witnesses in modern law), and charters. The Norman Conquest introduced for the new-comers, a form of proof previously unknown in England—"trial by combat"—which tended, for the upper classes at least, to supersede all earlier methods of procedure. The “proof,” of whatever kind it might be, thus appointed by the “judges” for the defendant’s performance was technically known as a “law” (Latin lex) in the sense of a “test” or “trial” or “task,” according to his success or failure in which his case should stand or fall.^[144]

103It will be apparent that to pronounce a “judgment” in this sense was a simple affair, a mere formality in the ordinary case, where room for dubiety could hardly be admitted; and thus it was possible for “judgment” to be delivered by all the members of a feudal court, or even by all the suitors present at a meeting of the hundred or shire-moot.

(5) The crucial stage, this “trial” which thus came after “judgment,” consisted in one party (usually the defendant) essaying, on the day appointed, to satisfy the court as to the truth of his allegations by performing the task or “law” which had been set or “doomed” to him. When this consisted in the production of a charter, or of “transaction witnesses” (that is, the testimony of those officials appointed in each market-town to certify the conclusion of such bargains as the sale of cattle), it commends itself readily to the modern understanding and approval. More frequently, however, it took the form of “an oath with oath-helpers,” the plaintiff bringing with him eleven or twelve of his trusty friends or dependents to swear after him the words of a long and cumbrous oath, under the risk of being punished as perjurers for any slip in the formula. This was known also as compurgation. Sometimes the decision was referred to the intervention of Providence by appealing to the ordeal of the red-hot iron or the more-dreaded ordeal of water. After the Norman Conquest, the trial in all litigations between men of high rank, took the form of duellum or legally regulated combat between the parties. The defendant gained his case if he caused the plaintiff to own himself worsted by uttering the word “craven.” He gained his case equally if he only held out till nightfall (when the combat terminated) against the plaintiff’s attempts to force him to utter that fateful word.^[145]

The battle was fought out before the “judges,” who, in the case of an earl or baron, were the other earls and barons assembled as his peers in the King’s court; and, in the 104case of the tenant of a mesne lord, were the other freeholders of the same manor.

The ancient “trial” (the importance of which is increased by the fact that it continued long after 1215, and may be traced in several clauses of Magna Carta)^[146] was thus something entirely different from the modern “trial.” It may be said without exaggeration that there was no “trial” at all in the current meaning of the word—no balancing of the testimony of one set of witnesses against another, no open proof and cross-examination, no debate on the legal principles involved. The ancient “trial” was merely a formal test, which was, except in the case of battle, entirely one-sided. The phrase “burden of proof” was inapplicable. The litigant to whom “a law” was appointed had the “privilege of proof” rather than the “burden of proof,” and he usually won his case—especially in compurgation, and even in ordeal if he had arranged matters properly with the priest who presided.^[147]

(6) The whole was concluded by the final “judgment,” or decree, which practically took the form of a sentence passed on the vanquished. The judges could scarcely be said to decide the case, since this had already been practically decided by the success or failure of the party on whom the proof had been laid. Those who gave sentence were “judges” merely in the sense of umpires who saw fairplay to both players, according to the acknowledged rules of the desperate game.^[148]

In one sense, the final (as opposed to the medial) “judgment” was determined by the parties themselves, or by one of them; in another and higher sense the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent man. Those 105who delivered the final doom, had a purely formal task to perform, and had little in common with the “judges” of a modern court.^[149]

The essentials of this procedure were the same in the Norman as in the Anglo-Saxon period, and that in all three classes of tribunals—popular courts, manorial courts, and royal courts.

Two innovations the Norman Kings did make; they introduced trial by combat (already sufficiently discussed), and likewise the continental method of obtaining information on sworn testimony. Among the prerogatives of the Norman Dukes one of the most valuable was the right to compel the sworn evidence of reliable men of any district—men specially picked for the purpose, and put on oath before answering the questions asked of them, thus endangering their eternal welfare in the event of falsehood, and laying themselves open to temporal penalties for perjury.

This procedure was known as inquisitio (or the seeking of information) when regarded from the point of view of the government making the inquiry, and as recognitio (or the giving of information) from the point of view of those supplying it. This extremely simple and practical device was flexible and capable of extension to endless new uses in 106the deft hands of the Norman Kings in England. William the Conqueror employed it in collecting the laws and customs of the conquered people, and, later on, in compiling Domesday Book; while his successors made it the instrument of various experiments in the science of taxation. It has a double claim to the interest of the constitutional historian, because it was one of the influences which helped to mould our Parliamentary institutions; and because several of the new uses to which it came to be put had a close connection with the origin of trial by jury. The recognitors, indeed, were simply local jurors in a rude or elementary form.^[150]

III. Reforms of Henry II. in Law Courts and Legal Procedure. It was reserved for Henry of Anjou to inaugurate an entirely new era in the relations of the three classes of courts. He was the first king deliberately to plan the overthrow of the feudal jurisdictions by insidiously undermining them, if not yet by open attack. He was the first king to reduce the old district courts so thoroughly under the control of royal officials as to turn them practically into royal courts. He was the first king also to throw open the doors of his own courts of law to all-comers, to all freemen, that is to say, for the despised villein had for centuries still to seek redress in the court of that very lord of the manor who was too often his oppressor.

In brief, then, Henry’s policy was twofold: to convert the County Courts practically into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s own Curia; and to reduce all manorial or private courts to insignificance by diverting pleas to his own Curia, and leaving the rival tribunals to die gradually from inanition. Both branches of this policy met ultimately with complete success, although the event hung in the balance until long after his death. The barons, though partially deceived by the gradual and insidious nature of 107Henry’s reforms, did what they could to thwart him; but the current of events was against them and with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces plainly written in several chapters of Magna Carta.^[151]

These contain what seem, at first sight, to be merely trivial alterations of technical points of court procedure; but inextricably bound up with them are principles of wide political and constitutional importance. Henry’s policy was to disguise radical reforms until they looked like small changes of procedure; it follows that the framers of Magna Carta, while appearing merely to seek the reversal of these trivial points, were really seeking to return to the totally different conditions which had prevailed prior to the reforms of Henry.

A short account of the main outlines of that monarch’s new system of procedure forms a necessary preliminary to a complete comprehension of these important chapters of Magna Carta. Such an account falls naturally into two divisions.

(1) Criminal Justice. (a) By his Assizes of Clarendon and Northampton Henry strictly reserved all important crimes for the exclusive consideration of his own judges either on circuit or at his court; and he demanded entry for these judges into franchises, however powerful, for that purpose. In this part of his policy, the King was completely successful; heinous crimes were, in the beginning of the thirteenth century, admitted on all hands to be “pleas of the Crown” (that is, cases exclusively reserved for the royal jurisdiction); and Magna Carta made no attempt to reverse this part of the Crown’s policy. The change was accepted as inevitable. All that was attempted in 1215 was to obtain a promise that these functions, now surrendered to the Crown forever, should be discharged by the Crown’s officials in a proper manner.^[152]

(b) Henry’s usual good sense, in this matter stimulated by some notable miscarriages of justice, led him to 108question the equity of the procedure usually adopted in criminal pleas, namely, by “appeal” or formal accusation by the injured party, or his nearest surviving relative. He substituted, whenever possible, communal accusation for individual accusation; that is, the duty of proclaiming (or indicting) the suspected criminals of each district before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours specially selected for that purpose—the predecessors of the Grand Jury of later days. This new procedure, it is true, supplemented rather than superseded the older procedure; yet it marked a distinct advance. Appeals were discouraged and exact rules laid down restricting the right of accusation to certain cases and individuals.^[153]

(c) A necessary complement of the discouragement of appeals was the discouragement of “trial by combat” also, since that formed the natural sequel. An ingenious device was invented and gradually extended to an increasing number of cases; an accused individual might apply for a writ known as de odio et atia, and thus avoid the duellum altogether by having his guilt or innocence determined by what was practically a jury of neighbours.^[154]

(2) Civil Justice. Henry’s innovations under this head were equally important.

(a) An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ process.” Once it was issued, all proceedings in other courts must stop. One special form of writ (known as praecipe), in particular, became a royal instrument for removing before the King’s own Curia cases pending in the manorial courts of mesne lords. To do this was to enrich the King at the expense 109of some baron or other freeman, by bringing to the Exchequer fees which otherwise would be paid to the owner of the private court. This was plainly "to cause a freeman to lose his court"—an abuse specially struck at by chapter 34 of the Great Charter.

(b) The mass of new business attracted to the King’s Courts made it necessary to increase, the staff of judges and to distribute the work among them. A natural division was that ordinary pleas (or common pleas) should be tried before one set of judges, and royal pleas (or pleas of the Crown) before another. This distinction is recognized in many separate chapters.^[155] Thus two groups of judges were formed, each of which was at first rather a committee of the larger Curia as a whole than an independent tribunal; but, in later years, the two rapidly developed into entirely separate courts—the Court of Common Pleas (at first known as the Bench, that is, the ordinary Bench), and the Court of King’s Bench (that is, the royal Bench, known also at first as the court Coram Rege, since it was always supposed to be held in the King’s presence).

(c) Special procedure for determining pleas of disputed titles to land or rights of possession was also invented by Henry to take the place of the ancient method of trial by battle. These Assizes, as they were called, are fully discussed elsewhere.^[156] The Grand Assize was looked on with suspicion by the barons as a procedure competent only before the royal courts, and therefore closely bound up with the King’s other devices for substituting his own jurisdiction for that of the private courts. The petty assizes, on the contrary, met with a ready acceptance, and the barons in 1215, far from objecting to their continuance, demanded that they should be held in regular sessions four times a year in each county of England.

These were the chief innovations which enabled Henry, while instituting many reforms urgently required and 110gladly welcomed by the mass of his subjects, at the same time to effect a revolution in the relations of royal justice to feudal justice. As time went on, new royal writs and remedies were being continually devised to meet new types of cases; and litigants flocked more and more readily to the King’s Courts, leaving the seignorial courts empty of business and of fees. Nor was this the only grievance of the barons. When one of their own number was amerced or accused of any offence involving loss of liberty or lands, he might be compelled by the Crown, under Henry and his sons, to submit to have the amercement assessed or the criminal proceedings conducted by one of the new Benches (by a tribunal composed of some four or five of the King’s officials), in place of the time-honoured judgment of his peers assembled in the Commune Concilium (the predecessor of the modern Parliament).