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Magna Carta Commemoration Essays, edited by Henry Elliot Malden, M.A. with a Preface by the Rt. Hon. Viscount Bryce, O.M.. For the Royal Historical Society, 1917.

Table of Contents

• INTRODUCTION The Editor
• Footnotes for Introduction

INTRODUCTION

THE seven hundredth anniversary of the granting of the Great Charter by King John occurred in June, 1915. Some kind of celebration of the event was so likely to be undertaken that the Royal Historical Society determined that if such took place at all it should be directed by competent persons, and early in 1914 organized a Committee for a due commemoration. The Right Hon. Viscount Bryce consented to act as Chairman of a Committee, which representatives of Universities, and learned Societies, and leading historical scholars from the United Kingdom, America, and some other countries, were invited to join. The Archbishop of Canterbury, and the Lord Mayor of London, represented the continuity of English life from 1215–1915. A small executive Committee was appointed to arrange details, among which a visit to Runnymede and an address upon the spot were contemplated. By 1915 this intended celebration proved not desirable, nor indeed possible. The memory of the assertion of the principle of government by law was overclouded by the cares of the immense struggle to maintain that principle through force of arms. Several eminent scholars had, however, prepared papers upon certain points or aspects of the Great Charter, or on matters of cognate interest, and these it is thought well to present to the Fellows of the Royal Historical Society, and to preserve in book form for the general use of historical students. These papers, it may be said, were not written with any idea of sequence, nor as aiming at any complete comment upon all points of the Charter. The authors were free to offer such contributions as they chose. But there will, nevertheless, be found, running through several of them, a line of general agreement. The old uncritical admiration which found in the Great Charter something more than the germ of all the more important parts of the Constitution and law of recent centuries has vanished from every place, except occasionally from Parliament and the public platform. The natural reaction which saw in the Charter merely the assertion of class privileges has begun to suffer from criticism in turn. Motives are indeterminate, even to those near at hand. Who knows all the motives of the Whigs of the Reform Bill of 1832? Who can confidently assert all those of Stephen Langton in 1215?

But to those afar off the general tendency of actions is more clear. In effect, by ten years after the Charter was given, it was popularly accepted, when recast and repeated, as national, not only as baronial in its benefits, confirming liberties "tam populo quam plebi". The barons did more than they knew, perhaps more than they would have intended had they known it; but whatever the interpretation in their minds of "liber homo," the interpretation of the courts soon gave it a wider scope than has sometimes been allowed to it by commentators.

As has often been pointed out, those who asserted the rule of law, and provided a sort of privileged civil war for the vindication of that rule, had travelled but a little way upon the path of constitutional progress. But the rude awakening of our own age has again forced upon us this unfortunate fact of a yet imperfect society, that liberties of a class, of a nation, or of a world, are only secure for those who can in the last resort venture their lives for their defence, and have the means to make that venture successful.

The present struggle for the rule of law explains the absence of some names from the list of contributors, and of some subjects which might have been treated. A German professor, well known for his mastery of early English law, once a friend of England, had promised a communication. A courteous letter, through Sweden—"suum cuique tribuito"—regretted his inability to contribute. The great French scholars to whom we owe so much light upon the reigns of the Angevin Kings, were necessarily preoccupied. It was hoped that from a Hungarian source we might have had a treatise on the likeness and differences between the privileges of the Anglo-Norman and Magyar nobility. A Belgian professor might have written on the parallels between our constitutional laws and the "Joyeuse Entrée" of Brabant, and other Netherland liberties. We are fortunate, however, in securing the aid of Señor Rafael Altamira upon the analogies of English and Spanish liberties. What we at home owe to the pious interest in the antiquities of their motherland felt by the scholars of America, the following pages show a little. We all know how much has been done by them elsewhere.

There is a peculiar satisfaction, however, in an English celebration of a thirteenth century document and event. Here, as elsewhere, in the course of 700 years all things have changed. But here, as not elsewhere, all things have changed by processes of development, which have often left names, offices, titles, and some more essential features of national life the same. Can any other country read at the beginning of its book of Statutes a law in the form in which it was made 692 years ago? The national spirit and aspirations, which at all events adopted as their own the articles of Runnymede, are the same to-day as then. While no peer of the United Kingdom represents in the male line any one of the barons of 1215, yet the blood of several of the latter flows in the veins of many Englishmen, Scots, and Irishmen, noble, gentle, and simple. The King wears, as the centre of a legal government, the crown which his ancestor John was admonished that he must wear in accordance with a law older than his dynasty. The titles of nobility, and of the archbishops and bishops who advised the Charter, remain.

In one case at least an English peer, the Duke of Norfolk and Earl of Arundel, is now lord of manors and castles which his ancestors in the female line held in 1215. The bishops in 1917 hold in many cases the same houses and estates which their predecessors in title held when by their advice John gave the Charter. Langton had his house at Lambeth, Peter des Roches at Farnham Castle, where their successors live now, in the latter case in some of the same buildings.

Our race across the seas claims an inheritance in liberties which were declared to be ancient at Runnymede.

There is something in this unbroken line of social and national descent akin to the ever-changing yet essentially permanent features of the stage upon which the national drama was enacted.

The face of the country has been changed since 1215, but it is the same land, and of all places in it Runnymede has probably changed among the least. Sir John Denham's Cooper's Hill looks across it, and up to Windsor and down to London, over more thickly inhabited distances; a few inns and boat-houses, standing amid enclosures, fringe the river, but in the foreground a meadow by the Thames there was, meadows by the Thames remain. In 1215 the hay of the Commoners of Egham must have been ruined, unless the season was unusually early. The hay crop would now stand as an obstacle to a celebration upon the spot on the actual anniversary in the middle of June.

Whether the place was the scene of any ancient meetings is unknown. Leland first advanced, with the boldness of the amateur etymologist, the derivation of the "Mead of Counsel" to explain the name. Certain topographical considerations in fact governed the selection of the place for a conference between John, who was at Windsor, and his barons whose base was London. A Roman road ran from the south-west towards the valley of the lower Thames, and when London had become the great commercial city of Roman Britain, in London it ended. Staines must be on or near the site of the Roman station "Ad Pontes," or "Pontibus". It would seem, from the name, that here must have been the earliest Roman bridge across the Thames, made perhaps before London was all important. There is another Roman road, recoverable in Sussex and Surrey in very short portions of its course, one of the longer is in Somersbury Wood near Ewhurst, which if, continued in a straight line would hit the Thames near Staines. But the undoubted road from Silchester, known locally as the Devil's Highway, crosses Easthampstead Plain and runs through Virginia Water, an artificial pond made in the eighteenth century, and heads directly towards Staines. When the succession no doubt of Roman bridges which crossed the low meadows subject to floods, as well as the river itself, fell into ruin, no one knows. But there is reason to believe that a bridge had been restored at Staines before 1215. In the Patent Rolls of Henry III,¹ 29 July, 1228, is a table of tolls which the warden ("custos") of Staines bridge may impose, "in auxilium pontis de Stanes reparandi et emendandi". There is no reference to the bridge being newly made then, and the natural inference is that a bridge which needed repairs had been standing more than thirteen years.²

Here then was the obvious reason for the baronial host coming to Runnymede on their way to Windsor. They had marched from London by the Roman road, and had crossed Staines bridge. Runnymede was a good camping ground, with a good communication with London behind it. The local tradition which places the granting of the Charter in Magna Carta island in the Thames is contradicted by the Charter itself, "data in prato quod vocatur Runingmede". The erroneous tradition was fixed by the lord of a Buckinghamshire manor (the island is in that county), who put up a fantastic building with an inscription on the island in 1834, saying that it was the true spot. If there is any reason behind it further than the assumption by Mr. George Simon Harcourt that the notable event took place upon his land, it may be found in a passage where Matthew Paris, in "Chronica Majora," adds to Wendover's account of the treaty between the French Prince Louis and the Earl of Pembroke in 1217, that it was negotiated "quadam insula," near Staines. Buckinghamshire must not rob Surrey of its greatest event. Surrey has also its own baseless tradition, perpetuated by an inscription, that the barons arranged their Articles in the caves under de Warenne's Castle at Reigate. Considering the attitude of John's cousin de Warenne, this would be equivalent to the Reform Bill of 1832 having been concocted in the cellars of Apsley House. Moreover the caves in question were made for getting fine sand, and were valued as sandpits in a survey of the manor of Reigate in 1622. Runnymede, with the adjacent Longmead, and Yardmead, are in the manor of Egham, which formerly, and in 1215, belonged to Chertsey Abbey, and after the dissolution became the property of the Crown, though granted for terms of years to various holders.³ At the time of the Parliamentary surveys of the late King's lands in 1650 it appears as meadow land belonging to Egham manor. In 1811 there were some ten tenants who enjoyed the use of the land for hay from March to Old Lammas Day. After that date it was thrown open for grazing to the cattle of the tenants of the manor of Egham. An Enclosure Act in 1814 (54 G. III, c. 153), and the consequent Award made in 1817, divided it among nineteen holders and the Crown, as lord. In Runnymede proper there were over 71 acres. The adjacent Longmead, of 76 acres, was divided among the Crown and nine tenants. The whole might be stocked with horses and cattle from old Lammas Day to 13 November, and with sheep from 13 November to 2 February. From 2 February to August it is to be left for hay. The central part was and is left unenclosed. But the Act stipulated that any enclosures which should interfere with the holding of Egham races upon the usual course at the end of August must be removed every year. William IV gave a plate to be run for at the meeting, and on the first occasion, in 1836, being present, the races coinciding with festivities at Windsor for his daughter's marriage, made a speech, in which a contemporary reporter found, "good feeling and patriotism equally blended". The King declared that "neither himself nor any other could be present without calling to mind that it was here that our liberties were obtained and for ever secured, and that we were here to enjoy those liberties and sports which he would with his utmost power ever protect and foster". His Majesty forebore to specify which clause of the Charter secured the liberty of horse-racing. The rather unusually disreputable crowd which frequented Egham races probably never at any other time recalled at all the more momentous gathering. The races ceased in 1884.

But with Aristophanes we may say:—

and revert to the studies of a great subject which follow.

The first paper was delivered as an address by Prof. W. S. McKechnie in 1915, before the Royal Historical Society and some members of the Magna Carta Committee, the Right Hon. Viscount Bryce being in the chair. It was the only celebration in the seven-hundredth year. It justifies the title Great as applied to this Charter, and explains how every succeeding age builded upon it conclusions to suit its own aspirations. When we read the glosses of the school of Coke we may be reminded of an ingenious preacher, who founds upon a simple text consequences which were far from the mind of the original writer. With Molière's character we may exclaim, "tant de choses en deux mots"; but it is hard to deny a great value to that which contained a principle of such varied practical application.

Prof. George Burton Adams, of Yale, U.S.A., follows with an article upon the Bull and the letter of Innocent III condemning the Charter, and prints the letter itself in an accessible form. The grounds for the Pope's interference were not the feudal supremacy which John had conceded to him, but rather his position as ecclesiastical arbiter of European quarrels, and special guardian of the rights of a professed crusader. That the thirteenth century Court of International Appeal made a great mistake in its excursion into English national politics, is more unfortunate than surprising.

Dr. J. Horace Round contributes a penetrating criticism upon the distinction between the lesser barons, who by clause 14 were to be summoned "en bloc" to Councils, and the "Milites" of the Charter. It will be a reminder needed by some, to whom comment has become more familiar than the words commented upon, that "barones minores" are not so named in the Charter at all.

The barons in 1255 are said to have appealed to Clause 14, concerning the writ of summons, which was not repeated in the reissues of the Charter.⁴ Is it possible that the many copies of the first issue of 1215 were in fact more numerous, or more generally accessible, than the reissues which should have superseded them? Or, to draw a suggestion from Prof. McIlwain's paper, was what had once been declared to be ancient practice considered binding, later laws notwithstanding?

Prof. Sir Paul Vinogradoff, and Prof. F. M. Powicke deal with the famous clause 39, "liber homo," "legale iudicium parium suorum," and "lex terrae". Too much cannot be written upon it by competent people. The clause is considered from slightly differing standpoints, but not with very different conclusions. It is here that the expansible nature of the Charter, as society expanded, is so clearly to be seen. "Liber Homo" is a very Proteus with whom to grapple, he assumes many shapes, but he was not always a military tenant only. John had fifteen years before 1215, in a charter,⁵ greeted as "liberi homines" the men of Kingston upon Thames, who had all in Domes-day been merely villeins on ancient demesne.

Prof. McIlwain, of Harvard, U.S.A., deals with Magna Carta and the Common Law, in an exhaustive treatise upon the whole subject of ancient custom, statute law, and ordinances.

Dr. H. D. Hazeltine, U.S.A., and Emmanuel College, Cambridge, treats of the inheritance in the Charter of the American colonies before and after the Declaration of Independence.

Señor Rafael Altamira, of Madrid, reminds us that in the early Middle Ages England was far from having a monopoly of constitutional liberties, and that there may be positive influence from the Pyrenean lands upon English constitutional developments. Certainly the elder Simon de Montfort, when in the November of 1212 he settled the affairs of the conquered Albigensian lands, called a Parliament at Pamiers, which was attended by barons, clergy, knights, and citizens, antedating by fifty-three years his more famous son's Parliament after Lewes. The device of a Parliamentary Committee to do the real business, not unknown in England and stereotyped in Scotland, was employed. Two bishops, a Templar, a Hospitaller, four French knights, two Languedocien knights, and two Languedocien burgesses were the "Lords of the Articles".⁶

Both the younger Simon and Edward I had ruled Gascony, and the latter had seen Spain. But we may hesitate to yield the palm to the Spanish kingdoms in the practical attainment of liberties. Spanish constitutional phenomena have yet to be studied as fully as those of England, and Señor Altamira admits that generalization is so far premature. When English constitutional studies were younger the tendency was to exaggerate the evidence of early popular liberties. When those of Aragon and Castile have been as exhaustively explored, a similar shrinkage of claims may follow. At any rate, moderation, slow advance, a practical sense aiming at the necessary and the attainable from time to time, with the continuance which was the fruit of these, were what made English constitutional gains solid.

Finally, Mr. Hilary Jenkinson, late of the P.R.O., now Captain R.G.A., gives an extremely interesting review of the financial organization, or disorganization, of the reign of John, drawn from the Records. It tends to show that by some one, perhaps by the King himself, some effort was being made to introduce method into business which had outgrown its earlier machinery.

The editor must return hearty thanks to Mr. F. A. Kirkpatrick, M.A., F.R.Hist.S., for the translation of Señor Altamira's paper; to Mr. C. Johnson of the Record Office for the correction of Mr. Jenkinson's proofs; and to Prof. McKechnie for invaluable help in the reading of proofs, doubly useful when it was impossible to send some of these across the seas for the final corrections by the authors. Nor is his debt to the greatest authority upon the Charter confined to this alone.

By arrangement Dr. Hazeltine's paper has appeared already in the "Columbia Law Review," Vol. XVII, January, 1917.

Footnotes for Introduction

1. P.R. 12 Hen. III, m. 2.

2. The statement in Manning and Bray, "Hist. of Surrey," iii. 256, that John de Oxenford made Staines bridge in the reign of Henry III, quoting the Escheats of 24 Edw. III, No. 51, is a mistake. It only appears that he made a causeway leading to the bridge.

3. The thirty-third clause of the Charter, forbidding weirs in the Thames, had been broken in the very home of its birth, for in 1332 Chertsey Abbey had a weir in the Thames at a place called la Huche in Egham, with a fisherman's cottage beside a certain island. This was at the east end of Egham, below Runnymede (Chertsey Abbey, Court Rolls, 6 Edw. III; Lansd. MS. 434, f. 39).

4. Matt. Paris. "Chron. Majora," v. 520.

5. Chart. R. I John m. 7; Cart. Antiq. ss. 8. This is the first extant Charter of Kingston (anno dom. 1200). The "liberi homines" were not a new settlement beside the ancient villani, for they held the villein-lands.

6. C. De Vic et J. J. Vaissete, "Histoire Générale de Languedoc," ed. Dulaurier, etc., vol. vi. 396, etc. We may compare with c. 12 of the Charter that in Languedoc vassals were not tallaged without consent; except in the three cases of ransom of the Lord, marriage of each of his daughters, and an expedition over seas, sc. a crusade. "Tallagium" seems here to equate "auxilium" (ibid. vi. p. 939).