Читать книгу Magna Carta: A Commentary on the Great Charter of King John - William Sharp McKechnie - Страница 21

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However wide and scattered were the sources from which the substance of the Great Charter was derived, its descent, on its formal side, can readily be traced, through an unbroken line of antecedents, back to a very early date. Magna Carta is directly descended from the Charter of Liberties of Henry I., and that, again, was a written supplement to the vows taken by that monarch at his coronation, couched in similar terms to those invariably sworn at their anointing by the Anglo-Saxon kings of England, from Edgar to Edward Confessor.

The ties which thus connect King John’s promises of good government with the promises to the same effect made at their coronation by the princes of the old dynasty of Wessex are by no means of an accidental nature. Not only is identity of substance, in part at least, maintained throughout; but the promises were the outcome of an essential feature of the old English constitution—a feature so deeply rooted that it survived the shock of the Norman Conquest. This feature, so fundamental and so productive of great issues, was the elective or quasi-elective nature of the monarchy. During the Anglo-Saxon era, two rival principles, the elective and the hereditary, struggled for the mastery in determining the succession to the Crown. In an unsettled state of society, nations cannot allow the sceptre to pass into the hands of an infant or a weakling. When a king died, leaving a son of tender age, and survived by a brother of acknowledged ability and mature powers, it was only natural that the latter should, in the interests of peace and order, be preferred to the throne. In such cases, the strict principle of primogeniture was not followed. The magnates of the kingdom, the so-called Witan, claimed the right to choose a fitting successor; yet in so doing they usually paid as great regard to the claims of kindred as circumstances permitted. The exact relations between the elective and the hereditary principles were never laid down with absolute precision. Indeed, the want of definition in all constitutional questions was characteristic of the age—a truth not sufficiently apprehended by writers of the school of Kemble and Freeman. The practice usually followed by the Witenagemot was to select as the new ruler some kinsman of the late king standing in close relationship to him, and at the same time competent for the high post. The king-elect thus appointed had, before his title was complete, to undergo a further ceremony: he required to be solemnly anointed by the representative of the spiritual power, and this gave to the Church an important share in deciding who should be king. At an early date—exactly how early is not known, but certainly not later than the days of Edgar—it became the invariable practice for the officiating archbishop to exact an oath of good government from the king-elect before his final coronation. The precise terms of this oath became stereotyped; and, as administered by Dunstan to King Ethelred, they are still extant.^[163]

It may be briefly analyzed into three promises—peace to God’s Church and people; repression of violence in men of every rank; justice and mercy in all judgments. Such was the famous tripartite oath taken, after celebration of mass, over the most sacred relics laid on the high altar, in presence of Church and people, by the kings of the old Anglo-Saxon race. When William I., anxious in all things to fortify the legality of his title, took the oath in this solemn form, he created a precedent of tremendous importance, although he may have regarded it at the moment as an empty formality.^[164]

This step was doubly important: as a link with the past, as a precedent for the future. A bridge was thus thrown across the social and political gulf of the Norman Conquest, preserving the continuity of the monarchy and of the basis on which it was founded. The elective character of the kingship, the need for coronation by the Church, and (the natural supplement of both) this tripartite oath containing promises of good government, valuable though vague, were all preserved.

This was of vital moment, because limits were thereby placed, in theory at least, on prerogatives that threatened in practice to become absolute. Undoubtedly the power of the Norman kings was very great, and might almost be described as irresponsible despotism, tempered by the fear of rebellion. Three forces indeed acted as curbs: the practical necessity for consulting the Curia Regis (or assembly of crown vassals) before any vital step was taken; the restraining influence of the national Church, backed by the spiritual powers of Rome; and the growth, in a vague form, it is true, of a body of public opinion confined as yet to the upper classes.

All these elements counted for something, but failed to restrain sufficiently even an average king; while they were powerless against a strong ruler like William I. The only moment at which the Crown might be taken at a clear disadvantage was during the interregnum which followed the death of the last occupant of the throne. Two or more rival heirs might aspire to the high position, and would be eager to make promises in return for support. Thus, William Rufus, at his father’s death, anxious to prevent his elder brother, Duke Robert, from making good his claim to the English throne, succeeded chiefly through the friendship of Lanfranc. To gain this, he was compelled to make promises of good government, and to follow his father’s precedent by taking the oath in the ancient form, in which it had been administered by Dunstan to Ethelred. In the same reign began the practice of supplementing verbal promises by sealed charters, which in some respects must be regarded simply as the old coronation oath confirmed, expanded, and reduced to writing. No such charter was indeed issued either by Rufus or by his father when they were crowned; but the younger William, at a critical period later in his reign, seems to have granted a short Charter of Liberties, the exact contents of which have not come down to us. At the death of Rufus, his younger brother, Henry I., found himself hard pressed in the competition for the English Crown by Duke Robert (the Conqueror’s eldest son). By a treaty made at Caen in 1091, Duke Robert and Rufus had agreed that each should constitute the other his heir. Thus Henry was, in a sense, a usurper, and this circumstance made it necessary for him to bid high for influential support.^[165] It is to this doubtful title, coupled with the knowledge of widespread disaffection, that Englishmen owe the origin of the first Charter of Liberties that has come down to us.^[166]

This charter was the price paid by Henry for the support he required in his candidature for the Crown. In granting it he admitted, in a sense, the contractual basis of his kingship. In discussing its tone and general tenor there is ample room for differences of opinion. Dr. Stubbs^[167] maintains that Henry thereby “definitely commits himself to the duties of a national King.” Writers of almost equal authority somewhat modify this view, holding that, although circumstances forced Henry to pose as the leader of the entire nation, yet nothing of this could be traced in the charter, the basis of which seems to have been feudal rather than national.^[168]

This view is strengthened by analysis of the actual provisions of the charter. While important and definite concessions were made to the Church and to the Crown-tenants, those to the people at large were few and vague—so vague as to be of little practical use. The Church, it was declared, “should be free,” a wide phrase to which these particulars were added, namely, that the wardship of sees during vacancies should not be sold or hired out, and that no sums should be demanded in name of reliefs from the lands or tenants of a see when a death occurred. The “baronage” (to use a convenient anachronism for “the Crown-tenants considered collectively”) received redress of their worst grievances in regard to reliefs and other feudal obligations. In this respect Henry’s charter anticipated and even went beyond some of the reforms of 1215.^[169]

It is true that the mass of the people may have indirectly benefited by many of these provisions; but when we look for measures of a directly popular character, only three can be found, namely, promises to enforce peace in the land, to take away evil customs, and to observe the laws of Edward Confessor as amended by William I. This is too slender a basis on which to found a claim to take rank as a “national king,” even if Henry had any intention of keeping his promises. It is now notorious that not a single promise remained unbroken.^[170]

From another point of view the charter is a criticism on the administration of Rufus (and to some extent also of the Conqueror), combined with a promise of amendment. Henry thus posed as a reformer, and forswore the evil customs of his father and brother. The great value of the charter, however, lies in this, that it is the first formal acceptance (published under seal and in proper legal shape) of the old law of Anglo-Saxon England by a ruler of the new alien dynasty; yet in this Henry was only completing what his father had begun. These considerations help to account for the almost exaggerated importance attached to Henry’s charter during the reign of John.

If all efforts made to defeat Henry’s succession failed, the succession of his daughter Matilda was disputed triumphantly. Stephen, taking advantage of his cousin’s absence and of her personal unpopularity, made a rapid descent on England with the spasmodic energy which characterized him, and successfully snatched the Crown. Trained in English ways on English soil, he was quickly on the spot and very popular. These features in his favour, however, did not render his position entirely secure as against the daughter and heiress of so strong a King as Henry I., to whom, indeed, Stephen himself, with all the magnates of England, had already thrice sworn allegiance. He was only one of two competitors for the Crown, with chances nearly equal. From the moment of the old King’s death, “the Norman barons treated the succession as an open question.” In these words of Bishop Stubbs,^[171] Mr. J. H. Round finds^[172] the keynote of the reign. Stephen was never secure on his throne, and had to make indiscriminate promises first to obtain, and afterwards to retain, his position. He was thus prepared to bid much higher for support than Henry had felt compelled to do. Adherents had to be gained painfully, one by one, by the grant of special favours to every individual whose support was worth the buying.

Bargains were struck with the Londoners, with Stephen’s brother Henry of Blois (Bishop of Winchester), with the Keepers of the King’s Treasure, with the Archbishop of Canterbury, and with the Justiciar (Bishop Roger of Salisbury). The support of the two last mentioned carried with it the support of the Church and of the administrative staff of the late king, but was only gained by wide concessions. Thus Stephen, like William of Orange, five centuries later, agreed to become “king upon conditions.” A Charter of Liberties and a solemn oath securing "the liberty of the Church"—a vague phrase, it is true, but none the less dangerous on that account—together formed the price of Stephen’s consecration; and this price was not perhaps too high when we remember that "election was a matter of opinion, coronation a matter of fact"—a solemn sacrament that could hardly be undone.^[173]

Even this important ceremony, however, left Stephen’s throne a tottering one; he was compelled to buy the adherence of powerful magnates by lavish concessions of land and franchises; and various charters in favour of individual nobles still exist as witnesses to such bribes. The process by which he built up a title to the Crown seems to have culminated in the Easter of 1136, when he secured the support of Matilda’s half-brother Robert, Earl of Gloucester, whose lead was quickly followed by other influential nobles. All of these new adherents, however, performed homage to the King under an important reservation, namely, that their future loyalty would be strictly conditional on the treatment extended to them by Stephen. That unfortunate monarch accordingly, by tolerating such conditional allegiance, was compelled to acknowledge the inherent weakness of his position even in the moment of his nominal triumph.^[174]

These important transactions took place apparently at Oxford,^[175] and at the same time the King issued his second or Oxford Charter, which embodied and expanded the contents of earlier charters and oaths. This Oxford Charter, the date of which has been proved to be early in April,^[176] is noteworthy alike for the circumstances in which it was granted, placing as it did the copestone on the gradual process by which Stephen was “elected” king, and also for its contents, which combined the earlier oath to the Church and the vague, unsatisfactory earlier charter to the people, with the new conditions extorted by Earl Robert and his followers.

The opening words, in which Stephen describes himself as “King of the English,” may be read as a laboured attempt to set forth a valid title to the throne. All reference to predecessors is carefully avoided, and the usurper declares himself to be king "by appointment of the clergy and people, by consecration of the archbishop and papal legate, and by the Pope’s confirmation."^[177]

Perhaps its chief provisions are those in favour of the Church, supplementing a vague declaration that the Church should be “free” by specific promises that the bishops should have exclusive jurisdiction and power over churchmen and their goods, along with the sole right to superintend their distribution after death. Here was a clear confirmation of the right of the Courts Christian to a monopoly of all pleas affecting the clergy or their property. It is the first distinct enunciation in England of the principle afterwards known as "benefit of clergy"—and that, too, in a form more sweeping than was ever afterwards repeated. Stephen also explicitly renounced all rights inherent in the Crown to wardship over Church lands during vacancies—a surrender never dreamed of by either Henry I. or Henry II.

Grants to the people at large followed. A general clause promising peace and justice was again supplemented by specific concessions of more practical value, namely, a promise to extirpate all exactions, unjust practices, and “miskennings” by sheriffs and others, and to observe good, ancient, and just customs in respect of murder-fines, pleas, and other causes.

Strangely enough, there is only one provision specially benefiting feudal magnates, the King’s disclaimer of all tracts of land afforested since the time of the two Williams. The omission of further feudal concessions must not be attributed either to Stephen’s strength, or to any spirit of moderation or self-sacrifice in the magnates. Each baron of sufficient importance had already extorted a special charter in his own favour, more emphatic and binding from its personal nature, and accordingly more valued than a mere general provision in favour of all and sundry. Such private grants generally included a confirmation of the grantee’s right to maintain his own feudal stronghold, thus placing him in a position of practical independence.

It is instructive to compare these wide promises of Stephen with the meagre words of the charter granted by Henry of Anjou at or soon after his Coronation.^[178] Henry II. carefully omits all mention of Stephen and his charters, not, as is sometimes supposed, because he did not wish to acknowledge the existence of a usurper, but because of that usurper’s lavish grants to the Church. Henry had no intention either to confirm “benefit of clergy” in so sweeping a form as Stephen had done, or to renounce wardship over the lands of vacant sees.

To the Church, as to the barons, Henry Plantagenet confirms only what his grandfather had already conceded. Even when compared with the standard set by the charter of Henry I., that of the younger Henry is shorter and less explicit, and therefore weaker and more liable to be set aside—features which justified Stephen Langton in his preference for the older document. If Henry II. granted a short and grudging charter, neither of his sons, at their respective coronations, granted any charter at all. Reasons for the omission readily suggest themselves; the Crown had grown strong enough to dispense with this unwelcome formality, partly because of the absence of rival competitors for the throne, and partly because of the perfection to which the machinery of government had been brought. The utmost which the Church could extract from Richard and John as the price of their consecration was the renewal of the three vague promises contained in the words of the oath, now taken as a pure formality. The omission to grant charters was merely one symptom of the diseases of the body politic consequent on the overweening power of the Crown, and proves how urgent was the need of some such re-assertion of the nation’s liberties as came in 1215.

John, at least, was not to be allowed to shake himself free from the obligations of his oath, or from the promise to confirm the ancient laws and customs of the land therein contained. Stephen Langton, before absolving him from the effects of his quarrel with Rome, compelled him to renew the terms of the coronation oath.^[179]

Nor was this all; from a meeting held at St. Albans on 4th August, 1213, writs were issued in the King’s name to the various sheriffs, bidding them observe the laws of Henry I. and abstain from unjust exactions.^[180] Three weeks later (on 25th August), the production of a stray copy of Henry’s charter is said, by Roger of Wendover, to have made a startling impression on all present,^[181] and the same charter was a second time produced at Bury St. Edmunds, on 4th November, 1214, and was accepted by the malcontents as a model which, modified and enlarged, might serve as a basis for the redress of the grievances of the reign.^[182]

It is thus both excusable and necessary to place much stress on this sequence of coronation oaths and charters, as contributing both to the form and to the substance of the Magna Carta of John. Yet the tendency to take too narrow a view of the antecedents of the Great Charter must be carefully guarded against. Many ingredients went to the making of it. Numerous reforms of Henry II., whether embodied or not in one or more of the ordinances or assizes that have come down to us, must be reckoned among their number, equally with those constitutional documents which happen to be couched in the form peculiar to charters granted under the king’s great seal. It is also necessary to remember the special grants made by successive kings of England to the Church, to London and other cities, and to individual prelates and barons. In a sense, the whole previous history of England went to the making of Magna Carta. The sequence of coronation oaths and charters is only one line of descent; the Great Charter of John can trace its origin through many other lines of distinguished ancestors.

163. The words have come down to us in two versions: one Anglo-Saxon and the other Latin. The former is preserved in Memorials of St. Dunstan (Rolls Series), p. 355, where it is translated by Dr. Stubbs:—

"In the name of the Holy Trinity I promise three things to the Christian people and my subjects: first, that God’s church and all Christian people of my dominions hold true peace; the second is that I forbid robbery and all unrighteous things to all orders; and third, that I promise and enjoin in all dooms, justice and mercy, that the gracious and merciful God of his everlasting mercy may forgive us all, who liveth and reigneth." The name of the King is not mentioned, and may have been either Edward or Ethelred, but is usually identified with the latter. See Kemble, Saxons in England, II. 35.

164. Two independent authorities, both writing from the English point of view, Florence of Worcester, and the author of the Worcester version of the Chronicle, agree that the Conqueror took the oath; the Norman authorities neither contradict nor confirm this. “William of Poitiers and Guy are silent about the oath.” Freeman, Norman Conquest, III. 561, note.

165. Stubbs, Const. Hist., I. 328-9, and authorities there cited.

166. See Appendix.

167. Const. Hist., I. 331.

168. See Prothero, Simon de Montfort, 16: “That charter had been mainly of a feudal character; it contained no provision for, and scarcely even hinted at, a constitutional form of government.”

169. Details are reserved for consideration under the feudal clauses of the Great Charter.

170. See Round, Feudal England, 227, and Pollock and Maitland, I. 306.

171. Stubbs, Const. Hist., I. 345.

172. Round, Geoffrey de Mandeville, p. 1.

173. Round, Geoffrey de Mandeville, p. 6. Mr. Round, ibid., p. 438, explains that the reason of the omission from this earlier charter of Stephen (unlike the more lengthy and important one which followed four months later) of all mention of the Church was that Stephen, at the time of granting, supplemented it by the verbal promise recorded by William of Malmesbury, de libertate reddenda ecclesiae et conservanda.

174. The whole incident is so remarkable that it seems well to cite the exact words of William of Malmesbury, II. 541: “Itaque homagium regi fecit sub conditione quadam, scilicet quamdiu ille dignitatem suam integre custodiret et sibi pacta servaret.”

175. Round, Geoffrey, 22.

176. Round, Geoffrey, 23–4.

177. Stephen was not justified in this last assumption. See Round, Geoffrey, 9.

178. The charter of Henry II. is given in Bémont, Chartes, 13, and in Select Charters, 135. It seems worth while to mention in this connection a notable mistake of a writer whose usual accuracy is envied by his brother historians. Mr. J. H. Round (Engl. Hist. Rev., VIII. 292) declares that “the royal power had increased so steadily that Henry II. and his sons had been able to abstain from issuing charters, and had merely taken the old tripartite oath.”

179. See supra, p. 32, and Round, Eng. Hist. Rev., VIII. 292.

180. Supra, p. 34.

181. Supra, p. 35.

182. Supra, p. 38.