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$Title{History Of Europe During The Middle Ages
Part VII}
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$Author{Hallam, Henry}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part VII

     The statutes of those reigns do not exhibit to us many provisions
calculated to maintain public liberty on a broad and general foundation. And
although the laws then enacted have not all been preserved, yet it is unlikely
that any of an extensively remedial nature should have left no trace of their
existence.  We find, however, what has sometimes been called the Magna Charta
of William the Conqueror, published by Wilkins from a document of considerable
authority. ^w We will, enjoin, and grant, says the king, that all freemen of
our kingdom shall enjoy their lands in peace, free from all tallage, and from
every unjust exaction, so that nothing but their service lawfully due to us
shall be demanded at their hands. ^x The laws of the Conqueror, found in
Hoveden, are wholly different from those in Ingulfus, and are suspected not to
have escaped considerable interpolation. ^y It is remarkable that no reference
is made to this concession of William the Conqueror in any subsequent charter.
A charter of Henry I., the authenticity of which is undisputed, though it
contains nothing specially expressed but a remission of unreasonable reliefs,
wardships, and other feudal burdens, ^z proceeds to declare that he gives his
subjects the laws of Edward the Confessor, with the emendations made by his
father with consent of his barons. ^a The charter of Stephen not only confirms
that of his predecessor, but adds, in fuller terms than Henry had used, an
express concession of the laws and customs of Edward. ^b Henry II. is silent
about these, although he repeats the confirmation of his grandfather's
charter. ^c The people however had begun to look back to a more ancient
standard of law.  The Norman conquest, and all that ensued upon it, had
endeared the memory of their Saxon government.  Its disorders were forgotten,
or, rather, were less odious to a rude nation, than the coercive justice by
which they were afterwards restrained. ^d Hence it became the favorite cry to
demand the laws of Edward the Confessor; and the Normans themselves, as they
grew dissatisfied with the royal administration, fell into these English
sentiments. ^e But what these laws were, or more properly, perhaps, these
customs subsisting in the Confessor's age, was not very distinctly understood.
^f So far, however, was clear, that the rigorous feudal servitude, the weighty
tributes upon poorer freemen, had never prevailed before the Conquest.  In
claiming the laws of Edward the Confessor our ancestors meant but the redress
of grievances, which tradition told them had not always existed.

[Footnote w: [Note XI.]]

[Footnote x: Volumus etiam, as firmiter praecipimus et concedimus, ut omnes
liberi homines totius monarchiae praedicti regni nostri habeant et teneant
terras suas et possessiones suas bene, et in pace, libere ab omni exactione
injusta, et ab omni tallagio, ita quod nihil ab iis exigatur vel capiatur,
nisi servitium suum liberum, quod de jure nobis facere debent, et facere
tenentur; et prout statutum est iis, et illis a nobis datum et concessum jure
haereditario in perpetuum per commune concilium totius regni nostri
praedicti.]

[Footnote y: Selden, ad Eadmerum.  Hody (Treatise on Convocations, p. 249)
infers from the great alterations visible on the face of these laws that they
were altered from the French original by Glanvil.]

[Footnote z: Wilkins, p. 234.  The accession of Henry inspired hopes into the
English nation which were not well realized.  His marriage with Matilda, "of
the rightful English kin," is mentioned with apparent pleasure by the Saxon
Chronicler under the year 1100.  And in a fragment of a Latin treatise on the
English laws, praising them with a genuine feeling, and probably written in
the earlier part of Henry's reign, the author extols his behavior towards the
people, in contrast with that of preceding times, and bears explicit testimony
to the confirmation and amendment of Edward's laws by the Conqueror and by the
reigning king - Qui non solum legem regis Eadwardi nobis reddidit, quam omni
gaudiorum delectatione suscepimus, sed beati patris ejus emendationibus
roboratam propriis institutionibus honestavit.  See Cooper on Public Records
(vol. ii. p. 423), in which very useful collection the whole fragment (for the
first time in England) is published from a Cottonian manuscript.  Henry ceased
not, according to the Saxon Chronicle, to lay on many tributes. But it is
reasonable to suppose that tallages on towns and on his demesne tenants, at
that time legal, were reckoned among them.]

[Footnote a: A great impression is said to have been made on the barons
confederated against John by the production of Henry I.'s charter, whereof
they had been ignorant.  Matt. Paris, p. 212.  But this could hardly have been
the existing charter, for reasons alleged by Blackstone. Introduction to Magna
Charta, p. 6.]

[Footnote b: Wilkins, Leges Anglo-Saxon., p. 310.]

[Footnote c: Id., p. 318.]

[Footnote d: The Saxon Chronicler complains of a witenagemot, as he calls it,
or assizes, held at Leicester in 1124, where forty-four thieves were hanged, a
greater number than was ever before known; it was said that many suffered
unjustly, p. 228.  Mr. Turner translates this differently; but, as I conceive,
without attending to the spirit of the context.  Hist. of Engl., vol. i. p.
174.]

[Footnote e: The distinction between the two nations was pretty well
obliterated at the end of Henry II.'s reign, as we learn from the Dialogue on
the Exchequer, then written: jam cohabitantibus Anglicis et Normannis, et
alterutrum uxores ducentibus vel nubentibus, sic permixtae sunt nationes, ut
vix discerni possit hodie, de liberis loquor, quis Anglicus, quis Normannus,
sic genere; exceptis duntaxat ascriptitiis qui villani dicuntur, quibus non
est liberum obstantibus dominis suis a sui status conditione discedere.
Eapropter pene quicunque sic hodie occisus reperitur, ut murdrum punitur,
exceptis his quibus certa sunt ut dixmus servilis conditionis indicia. p. 26.
[Note XII.]]

[Footnote f: Non quas tulit, sed quas observaverit, says William of
Malmesbury, concerning the Confessor's laws.  Those bearing his name in
Lambard and Wilkins are evidently spurious, though it may not be easy to fix
upon the time when they were forged.  Those found in Ingulfus, in the French
language, are genuine, though translated from Latin, and were confirmed by
William the Conqueror.  Neither of these collections, however, can be thought
to have any relation to the civil liberty of the subject.  It has been deemed
more rational to suppose that these longings for Edward's laws were rather
meant for a mild administration of government, free from unjust Norman
innovations, than any written and definitive system.]

     It is highly probable, independently of the evidence supplied by the
charters of Henry I. and his two successors, that a sense of oppression had
long been stimulating the subjects of so arbitrary a government, before they
gave any demonstrations of it sufficiently palpable to find a place in
history.  But there are certainly no instances of rebellion, or even, as far
as we know, of a constitutional resistance in parliament, down to the reign of
Richard I.  The revolt of the earls of Leicester and Norfolk against Henry
II., which endangered his throne and comprehended his children with a large
part of his barons, appears not to have been founded even upon the pretext of
public grievances.  Under Richard I. something more of a national spirit began
to show itself.  For the king having left his chancellor William Longchamp
joint regent and justiciary with the Bishop of Durham during his crusade, the
foolish insolence of the former, who excluded his coadjutor from any share in
the administration, provoked every one of the nobility.  A convention of
these, the king's brother placing himself at their head, passed a sentence of
removal and banishment upon the chancellor.  Though there might be reason to
conceive that this would not be unpleasing to the king, who was already
apprised how much Longchamp had abused his trust, it was a remarkable
assumption of power by that assembly, and the earliest authority for a leading
principle of our constitution, the responsibility of ministers to parliament.

     In the succeeding reign of John all the rapacious exactions usual to
these Norman kings were not only redoubled, but mingled with other outrages of
tyranny still more intolerable. ^g These too were to be endured at the hands
of a prince utterly contemptible for his folly and cowardice.  One is
surprised at the forbearance displayed by the barons, till they took up arms
at length in that confederacy which ended in establishing the Great Charter of
Liberties.  As this was the first effort towards a legal government, so is it
beyond comparison the most important event in our history, except that
Revolution without which its benefits would have been rapidly annihilated.
The constitution of England has indeed no single date from which its duration
is to be reckoned.  The institutions of positive law, the far more important
changes which time has wrought in the order of society, during six hundred
years subsequent to the Great Charter, have undoubtedly lessened its direct
application to our present circumstances.  But it is still the keystone of
English liberty.  All that has since been obtained is little more than as
confirmation or commentary; and if every subsequent law were to be swept away,
there would still remain the bold features that distinguish a free from a
despotic monarchy.  It has been lately the fashion to depreciate the value of
Magna Charta, as if it had sprung from the private ambition of a few selfish
barons, and redressed only some feudal abuses.  It is indeed of little
importance by what motives those who obtained it were guided.  The real
characters of men most distinguished in the transactions of that time are not
easily determined at present.  Yet if we bring these ungrateful suspicions to
the test, they prove destitute of all reasonable foundation.  An equal
distribution of civil rights to all classes of freemen forms the peculiar
beauty of the charter.  In this just solicitude for the people, and in the
moderation which infringed upon no essential prerogative of the monarchy, we
may perceive a liberality and patriotism very unlike the selfishness which is
sometimes rashly imputed to those ancient barons.  And, as far as we are
guided by historical testimony, two great men, the pillars of our church and
state, may be considered as entitled beyond the rest to the glory of this
monument; Stephen Langton, Archbishop of Canterbury, and William Earl of
Pembroke.  To their temperate zeal for a legal government, England was
indebted during that critical period for the two greatest blessings that
patriotic statesmen could confer: the establishment of civil liberty upon an
immovable basis, and the preservation of national independence under the
ancient line of sovereigns, which rasher men were about to exchange for the
dominion of France.

[Footnote g: In 1207 John took a seventh of the movables of lay and spiritual
persons, cunctis murmurantibus, sed contradicere non audentibus. Matt. Paris,
p. 186, ed. 1684.  But his insults upon the nobility in debauching their wives
and daughters were, as usually happens, the most exasperating provocation.]

     By the Magna Charta of John reliefs were limited to a certain sum
according to the rank of the tenant, the waste committed by guardians in
chivalry restrained, the disparagement in matrimony of female wards forbidden,
and widows secured from compulsory marriage.  These regulations, extending to
the sub-vassals of the crown, redressed the worst grievances of every military
tenant in England.  The franchises of the city of London and of all towns and
boroughs were declared inviolable. The freedom of commerce was guaranteed to
alien merchants.  The Court of Common Pleas, instead of following the king's
person, was fixed at Westminster.  The tyranny exercised in the neighborhood
of royal forests met with some check, which was further enforced by the
Charter of Forests under Henry III.

     But the essential clauses of Magna Charta are those which protect the
personal liberty and property of all freemen, by giving security from
arbitrary imprisonment and arbitrary spoliation.  "No freeman (says the 29th
chapter of Henry III.'s charter, which, as the existing law, I quote in
preference to that of John, the variations not being very material) shall be
taken or imprisoned, or be disseized of his freehold, or liberties, or free
customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we
pass upon him, nor send upon him, but by lawful judgment of his peers, or by
the law of the land. ^h We will sell to no man, we will not deny or delay to
any man, justice or right." It is obvious that these words, interpreted by any
honest court of law, convey an ample security for the two main rights of civil
society.  From the era, therefore, of King John's charter, it must have been a
clear principle of our constitution that no man can be detained in prison
without trial. Whether courts of justice framed the writ of habeas corpus in
conformity to the spirit of this clause, or found it already in their
register, it became from that era the right of every subject to demand it.
That writ, rendered more actively remedial by the statute of Charles II., but
founded upon the broad basis of Magna Charta, is the principal bulwark of
English liberty; and if ever temporary circumstances, or the doubtful plea of
political necessity, shall lead men to look on its denial with apathy, the
most distinguishing characteristic of our constitution will be effaced.
[Footnote h: Nisi per legale judicium parium suorum, vel per legem terrae.
Several explanations have been offered of the alternative clause, which some
have referred to judgment by default or demurrer - others to the process of
attachment for contempt.  Certainly there are many legal procedures besides
trial by jury, through which a party's goods or person may be taken.  But one
may doubt whether these were in contemplation of the framers of Magna Charta.
In an entry of the charter of 1217 by a contemporary hand, preserved in a book
in the town clerk's office in London, called Liber Custumarum et Regum
antiquorum, a various reading, et per legem terrae, occurs.  Blackstone's
Charters, p. 42.  And the word vel is so frequently used for et, that I am not
wholly free from a suspicion that it was so intended in this place.  The
meaning will be that no person shall be disseized, &c., except upon a lawful
cause of action or indictment found by the verdict of a jury.  This really
seems as good as any of the disjunctive interpretations, but I do not offer it
with much confidence.

     But perhaps the best sense of the disjunctive will be perceived by
remembering that judicium parium was generally opposed to the combat or the
ordeal, which were equally lex terrae.]

     As the clause recited above protects the subject from any absolute
spoliation of his freehold rights, so others restrain the excessive
amercements which had an almost equally ruinous operation.  The magnitude of
his offence, by the 14th clause of Henry III.'s charter, must be the measure
of his fine; and in every case the contenement (a word expressive of chattels
necessary to each man's station, as the arms of a gentleman, the merchandise
of a trader, the plough and wagons of a peasant) was exempted from seizure.  A
provision was made in the charter of John that no aid or escuage should be
imposed, except in the three feudal cases of aid, without consent of
parliament.  And this was extended to aids paid by the city of London.  But
the clause was omitted in the three charters granted by Henry III., though
parliament seem to have acted upon it in most part of his reign.  It had,
however, no reference to tallages imposed upon towns without their consent.
Fourscore years were yet to elapse before the great principle of parliamentary
taxation was explicitly and absolutely recognized.

     A law which enacts that justice shall neither be sold, denied, nor
delayed, stamps with infamy that government under which it had become
necessary.  But from the time of the charter, according to Madox, the
disgraceful perversions of right, which are upon record in the rolls of the
exchequer, became less frequent. ^i

[Footnote i: Hist. of Exchequer, c. 12.]

     From this era a new soul was infused into the people of England.  Her
liberties, at the best long in abeyance, became a tangible possession, and
those indefinite aspirations for the laws of Edward the Confessor were changed
into a steady regard for the Great Charter.  Pass but from the history of
Roger de Hoveden to that of Matthew Paris, from the second Henry to the third,
and judge whether the victorious struggle had not excited an energy of public
spirit to which the nation was before a stranger.  The strong man, in the
sublime language of Milton, was aroused from sleep, and shook his invincible
locks.  Tyranny, indeed, and injustice will, by all historians not absolutely
servile, be noted with moral reprobation; but never shall we find in the
English writers of the twelfth century that assertion of positive and national
rights which distinguishes those of the next age, and particularly the monk of
St. Albans.  From his prolix history we may collect three material
propositions as to the state of the English constitution during the long reign
of Henry III.; a prince to whom the epithet of worthless seems best
applicable; and who, without committing any flagrant crimes, was at once
insincere, ill-judging, and pusillanimous.  The intervention of such a reign
was a very fortunate circumstance for public liberty, which might possibly
have been crushed in its infancy if an Edward had immediately succeeded to the
throne of John.

     I. The Great Charter was always considered as a fundamental law.  But yet
it was supposed to acquire additional security by frequent confirmation.  This
it received, with some not inconsiderable variation, in the first, second, and
ninth years of Henry's reign.  The last of these is in our present
statute-book, and has never received any alterations; but Sir E. Coke reckons
thirty-two instances wherein it has been solemnly ratified.  Several of these
were during the reign of Henry III., and were invariably purchased by the
grant of a subsidy. ^j This prudent accommodation of parliament to the
circumstances of their age not only made the law itself appear more
inviolable, but established that correspondence between supply and redress
which for some centuries was the balance-spring of our constitution.  The
charter, indeed, was often grossly violated by their administration.  Even
Hubert de Burgh, of whom history speaks more favorably than of Henry's later
favorites, though a faithful servant of the crown, seems, as is too often the
case with such men, to have thought the king's honor and interest concerned in
maintaining an unlimited prerogative. ^k The government was, however, much
worse administered after his fall.  From the great difficulty of compelling
the king to observe the boundaries of law, the English clergy, to whom we are
much indebted for their zeal in behalf of liberty during this reign, devised
means of binding his conscience and terrifying his imagination by religious
sanctions.  The solemn excommunication, accompanied with the most awful
threats, pronounced against the violators of Magna Charta, is well known from
our common histories.  The king was a party to this ceremony, and swore to
observe the charter.  But Henry III., though a very devout person, had his own
notions as to the validity of an oath that affected his power, and indeed
passed his life in a series of perjuries.  According to the creed of that age,
a papal dispensation might annul any prior engagement; and he was generally on
sufficiently good terms with Rome to obtain such an indulgence.

[Footnote j: Matt. Paris, p. 272.]

[Footnote k: Id. p. 284.]

     2. Though the prohibition of levying aids or escuages without consent of
parliament had been omitted in all Henry's charters, yet neither one nor the
other seem in fact to have been exacted at discretion throughout his reign.
On the contrary, the barons frequently refused the aids, or rather subsidies,
which his prodigality was always demanding.  Indeed it would probably have
been impossible for the king, however frugal, stripped as he was of so many
lucrative though oppressive prerogatives by the Great Charter, to support the
expenditure of government from his own resources. Tallages on his demesnes,
and especially on the rich and ill-affected city of London, he imposed without
scruple; but it does not appear that he ever pretended to a right of general
taxation.  We may therefore take it for granted that the clause in John's
charter, though not expressly renewed, was still considered as of binding
force.  The king was often put to great inconvenience by the refusal of
supply; and at one time was reduced to sell his plate and jewels, which the
citizens of London buying, he was provoked to exclaim with envious spite
against their riches, which he had not been able to exhaust. ^l

[Footnote l: M. Paris, p. 650.]

     3. The power of granting money must of course imply the power of
withholding it; yet this has sometimes been little more than a nominal
privilege.  But in this reign the English parliament exercised their right of
refusal, or, what was much better, of conditional assent.  Great discontent
was expressed at the demand of a subsidy in 1237; and the king alleging that
he had expended a great deal of money on his sister's marriage with the
emperor, and also upon his own, the barons answered that he had not taken
their advice in those affairs, nor ought they to share the punishment of acts
of imprudence they had not committed. ^m In 1241, a subsidy having been
demanded for the war in Poitou, the barons drew up a remonstrance, enumerating
all the grants they had made on former occasions, but always on condition that
the imposition should not be turned into precedent.  Their last subsidy, it
appears, had been paid into the hands of four barons, who were to expend it at
their discretion for the benefit of the king and kingdom; ^n an early instance
of parliamentary control over public expenditure.  On a similar demand in 1244
the king was answered by complaints against the violation of the charter, the
waste of former subsidies, and the maladministration of his servants. ^o
Finally the barons positively refused any money; and he extorted 1,500 marks
from the city of London.  Some years afterwards they declared their readiness
to burden themselves more than ever if they could secure the observance of the
charter; and requested that the justiciary, chancellor, and treasurer might be
appointed with consent of parliament, according, as they asserted, to ancient
custom, and might hold their offices during good behavior. ^p

[Footnote m: Quod haec omnia sine consilio fidelium suorum facerat, nec
debuerant esse poenae participes, qui fuerant a culpa immunes.  P. 367.]

[Footnote n: M. Paris, p. 515.]

[Footnote o: Id. pp. 563, 572.  Matthew Paris' language is particularly
uncourtly: rex cum instantissime, ne dicam impudentissime, auxilium pecuniare
ab iis iterum postularet, toties laesi et illusi, contradixerunt ei unanimiter
et uno ore in facie.]

[Footnote p: De communi consilio regni, sicut ab antiquo consuetum et justum.
P. 778.  This was not so great an encroachment as it may appear. Ralph de
Neville, Bishop of Chichester, had been made chancellor in 1223, assensu
totius regni; itaque scilicet ut non deponeretur ab ejus sigilli custodi nisi
totius regni ordinante consensu et consilio.  P. 266. Accordingly, the king
demanding the great seal from him in 1236, he refused to give it up, alleging
that, having received it in the general council of the kingdom, he could not
resign it without the same authority. P. 363.  And the parliament of 1248
complained that the king had not followed the steps of his predecessors in
appointing these three great officers by their consent.  P. 646.  What had
been in fact the practice of former kings I do not know; but it is not likely
to have been such as they represent.  Henry, however, had named the Archbishop
of York to the regency of the kingdom during his absence beyond seas in 1242,
de consilio omnium comitum et baronum nostrorum et omnium fidelium nostrorum.
Rymer, t. i. p. 400.]

     Forty years of mutual dissatisfaction had elapsed, when a signal act of
Henry's improvidence brought on a crisis which endangered his throne. Innocent
IV., out of mere animosity against the family of Frederick II., left no means
untried to raise up a competitor for the crown of Naples, which Manfred had
occupied.  Richard Earl of Cornwall having been prudent enough to decline this
speculation, the pope offered to support Henry's second son, Prince Edmund.
Tempted by such a prospect, the silly king involved himself in irretrievable
embarrassments by prosecuting an enterprise which could not possibly be
advantageous to England, and upon which he entered without the advice of his
parliament.  Destitute himself of money, he was compelled to throw the expense
of this new crusade upon the pope; but the assistance of Rome was never
gratuitous, and Henry actually pledged his kingdom for the money which she
might expend in a war for her advantage and his own. ^q He did not even want
the effrontery to tell parliament in 1257, introducing his son Edmund as King
of Sicily, that they were bound for the repayment of 14,000 marks with
interest.  The pope had also, in furtherance of the Neapolitan project,
conferred upon Henry the tithes of all benefices in England, as well as the
first fruits of such as should be vacant. ^r Such a concession drew upon the
king the implacable resentment of his clergy, already complaining of the
cowardice or connivance that had during all his reign exposed them to the
shameless exactions of Rome.  Henry had now indeed cause to regret his
precipitancy. Alexander IV., the reigning pontiff, threatened him not only
with a revocation of the grant to his son, but with an excommunication and
general interdict, if the money advanced on his account should not be
immediately repaid, ^s and a Roman agent explained the demand to a parliament
assembled in London.  The sum required was so enormous, we are told, that it
struck all the hearers with astonishment and horror.  The nobility of the
realm were indignant to think that one man's supine folly should thus bring
them to ruin. ^t Who can deny that measures beyond the ordinary course of the
constitution were necessary to control so prodigal and injudicious a
sovereign?  Accordingly the barons insisted that twenty-four persons should
be nominated, half by the king and half by themselves, to reform the state of
the kingdom.  These were appointed on the meeting of the parliament at Oxford,
after a prorogation.

[Footnote q: Id. p. 771.]

[Footnote r. P. 813.]

[Footnote s: Rymer, t. i. p. 632.  This inauspicious negotiation for Sicily,
which is not altogether unlike that of James I. about the Spanish match, in
its folly, bad success, and the dissatisfaction it occasioned at home,
receives a good deal of illustration from documents in Rymer's collection.]

[Footnote t: Quantitas pecuniae ad tantam ascendit summam, ut stuporem simul
et horrorem in auribus generaret audientium.  Doluit igitur nobilitas regni,
se unius hominis ita confundi supina simplicitate.  M. Paris, p. 827.]

     The seven years that followed are a revolutionary period, the events of
which we do not find satisfactorily explained by the historians of the time.
^u A king divested of prerogatives by his people soon appears even to
themselves an injured party.  And, as the baronial oligarchy acted with that
arbitrary temper which is never pardoned in a government that has an air of
usurpation about it, the royalists began to gain ground, chiefly through the
defection of some who had joined in the original limitations imposed on the
crown, usually called the provisions of Oxford.  An ambitious man, confident
in his talents and popularity, ventured to display too marked a superiority
above his fellows in the same cause.  But neither his character nor the
battles of Lewes and Evesham fall strictly within the limits of a
constitutional history.  It is however important to observe, that, even in the
moment of success, Henry III. did not presume to revoke any part of the Great
Charter.  His victory had been achieved by the arms of the English nobility,
who had, generally speaking, concurred in the former measures against his
government, and whose opposition to the Earl of Leicester's usurpation was
compatible with a steady attachment to constitutional liberty. ^v

[Footnote u: The best account of the provisions of Oxford in 1260 and the
circumstances connected with them is found in the Burton Annals.  2 Gale, XV.
Scriptores, p. 407.  Many of these provisions were afterwards enacted in the
statute of Marlebridge.]

[Footnote v: The Earl of Gloucester, whose personal quarrel with Montfort had
overthrown the baronial oligarchy, wrote to the king in 1267, ut provisions
Oxoniae teneri faciat per regnum suum, et ut promissa sibi apud Evesham de
facto compleret.  Matt. Paris, p. 850.]