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26 Constitutional History. [chap.

second re- charter were renewed and expanded. This was done on the

issue of the ,,, - ,,,
Charter, 6th of November \

The work of William Marshall's administration, the restoration
of peace and good government, may be compared with the similar
task undertaken by Henry II at the beginning of his reign*.
chancier of William Marshall adopted the same firm but conciliatory policy,
wutiam He showed no vindictiveness : had he done so his own son must
have been the first to suffer. He had not to create a new-
administrative system, but only to revive and adapt one that
had been long at work, and that wanted but little adjustment to
present needs. He could not dispense with the aid of the legate
or of the foreign servants of John : he could but use and regulate
them so as to do the most good and the least harm ; and he
thus tolerated the existence of elements foreign to the consti-
tution, and in their results full of difficulties to his successors.
Hubert de Burgh bad to stem the tide of these evils, and he^
overcame them, although he fell under the reaction caused by his
own measures. William Marshall could scarcely have carried
out plans which were premature even under his successor. The
glory of his administration then is the pacification, and the two
editions of the charter by which the stages of the pacification are
marked.
Distinctive ^The charter of 121 7 differs from the two earlier editions in
Charter of several points : it does not contain the respiting clause of 12 16,
" ,7 * although it provides a substitute in its 46th article, reserving to

all persons lay and clerical the liberties and free customs they
possessed before. Two new clauses form a germ of later legis-
lation ; the 39th, which directs that no freeman shall henceforth
alienate so much of his land that the residue shall be insufficient
to furnish the legal services due to his lord, is said to be the first

1 Select Charters, p. 335; Statutes of the Realm (Charters), pp. 17 sq.
These charters were sent to the sheriffe to be published and sworn at the
county courts, Feb. aa, iai8: Food. i. 150; Rot. Clans, i. 377.

* By a general writ issued Sept. aq, the sheriffe were ordered to ascertain
by jury the royal demesnes in their oountiee, and to take them into the
royal hands ; Rot. Clans, i. 336. On the 3rd of NoTember the earl of Chester
is called on to acoount lor the counties of Lancaster, Stafford, and Salop ;
ibid. 340. These Rolls contain an enormous mass of evidence on the restora-
tion of estates consequent on the peace.



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xiv.] The Charter of the Fared. %7

legal restraint on alienation on record in this country \ and, in Prospective

« . . . andretro-

another aspect, contains the principle of the statute ' Quia spective in-

. terestofthe

Emptores' ; the 43rd, forbidding the fraudulent transfer of change*

lands to religious houses, stands in the same relation to the
statute 'de religiosis.' The 47th clause, again, which orders
the destruction of adulterine castles, and the 44th, which
provides that scutages shall be taken as in king Henry's
time 1 , may show that in some points the current of re-
cent history had been retrogressive. The 42 nd article
orders the county court to be held monthly and the sheriff's
tourn, which now first appears in the charters, twice a year 8 .
The same clause also regulates the view of frankpledge and JSjJJJl.
affords the first legal evidence of its general obligation. The
annual sessions of the itinerant justices are reduced from four to
one, and their functions are somewhat limited : this was possibly
a concession to the feudal feeling which long continued hostile
to the king's aggressive judicature. This reissue presents the *j™ji **»»
Great Charter in its final form ; although frequently republished Charter.
and confirmed, the text is never again materially altered.

The charter of the Forest 4 , put forth at the same time and in Forest
like form, was probably no less popular or less important ; for
the vast extension of the forests with their uncertain bound-
aries and indefinite privileges, had brought their peculiar
jurisdictions and minute oppressions into every neighbourhood,
and imposed on all the inhabitants of the counties in which
they lay burdensome duties and liabilities, rivalling in number

1 See Beeves, Hist, of English Law, i. 239 ; Report on the Dignity of a
Peer, i. 397 sq.

* The exact force of the clause is however uncertain; if as may be
thought (Report on the Dignity of a Peer, i. 79) it was to restrict the
amount of scutage, it was a concession on the part of the crown ; if it
means that scutages should be taken without asking the commune concilium,
it was a retrograde act. The scutage taken nearly at this time was as-
sessed by the commune concilium ; see p.30 note 1.

9 This clause was explained and modified by Henry III in 1 334, in an
edict which directs the holding of hundred and wapentake courts every
three weeks, instead of 9tery fortnight as had been usual under Henry II.
Aim. Dunst. p. 140 ; Royal Letters, i. 450.

4 It is to be remembered that John issued no Forest Charter, as is
commonly stated ; that given by Matthew Paris in his name is Henry's
Charter of 1217.



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a8 Constitutional History. [<!hap.

its im- and cogency the strict legal and constitutional obligations

por under which they still groaned. The forest courts stood side by

side with the county courts, the forest assizes with the sessions

of the shire and hundred ; the snares of legal chicanery, the risks

Remedial of offence done in ignorance, lay in double weight on all This

the Forat charter was a great measure of relief: the inhabitants of the

charter. copies not living within the forests are released from the duty

of attending the courts except on special summons 1 ; the forests

made in the last two reigns are disafforested; much of the

vexatious legislation of Henry II is annulled, and the normal

state of the rights of landowners adjusted to their condition at

the time of that king's coronation. Both the charters are sealed

with the seals of both legate and regent *.

The reissues The aged warrior, who had shared the rebellion of the younger

of the Char- ° °

terarepre- Henry in 1 173, and had stood by his deathbed ; who had over-
sentativeact . . , . . . « _..„, T , _ . . _ .

of a reore- thrown the administration of William Longcnamp, and joined in

sentative

man. the outlawry of John ; who had been in 1 2 15 the mainstay of the

royal party, and had seen his son the leading spirit of the opposi-
tion; who had secured the crown for Henry III, by holding out
the promises of good government which his father had broken ;
now puts forth, as a constitutional platform, the document whose
growth and varying fortunes he had so carefully watched.

Action of Honorius III saw clearly how and where he must recede from

Hononus _

in. the position of his predecessor ; he too has his share of credit ;

and Gualo, who from first to last acted in close concert with

the regent, may be pardoned if he tried to make his own profit

Later his- out of the task. Hie later history of the twenty-five barons

tory of the

twenty-five, may be briefly told : Geoffrey Mandeville and Eustace de Vescy

died before John; William of Lamvalei in 1217, the earl of

Hertford in 1218, Saer de Quincy in 1219 at Damietta; the

earls of Hereford and Norfolk in 1220; Robert de Vere in

1 Cf. Royal Letters, i. 360.
Select Charters, pp. 338 s m
ambulation made for the purpose of ascertaining and settling the boundaries



* Select Charters, pp. 338 sq. ; Statutes (Charters), pp. ao, 11. The per-
mbulation made for die purpose of ascertaining and settling the boundaries
of the Forests was carried out in the summer of I a 18 : under writs issued
at Leicester, July 14 ; Food. i. 151.

8 The later history of the twenty-five is worked out by Thompson, in his
notes on Magna Carta ; but the dates given in the text are drawn from the
contemporary writers, and supplemented from Dugdale's Baronage.



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xiv.] Ruing Difficulties. * £9

1321; William Mowbray in 1222. Robert Fitzwalter, who Obscurity of
from the moment of bis release, took up the position of a good history.
subject, went on the crusade, and died long after his return, in
1 2 35 ; William of Albini in 1 2 36. Gilbert of Clare, who became
earl of Hertford in 1 218 and of Gloucester in 1226, died in
1230, leaving a son who played a part like that of his father
and grandfather, under Simon de Montfort. Hugh Bigod be-
came earl on his father's death, and died in 1225. John de
Lacy became earl of Lincoln in 1232, and died in 1240; he
and Richard de Percy both lived to act among the king's friends
in his first constitutional difficulties. Of the whole number
Richard of Montfichet alone, who was afterwards justiciar of
the forests, lived to see the barons' war. The younger William
Marshall and William of Aumale, are the only two who come
again into the bright light of history. As so often happens in
constitutional contests, the fruit of their labours fell to the men
who had thwarted them : their only reward was the success of
the cause which had been won with so great a risk of their own
destruction.

The reign of Henry III may be regarded as really beginning Heniy*t ad-
with the treaty of Lambeth. He was now ten years old : the his fin* 1 " *
leading men in the administration might reckon on ten years 7ean *
more of unimpeded usefulness. Langton's period of suspension
was over ', and he had in Walter Gray, now archbishop of York,
a position which he held for forty years, an experienced col-
league in the government of the church, and a helper of great
official knowledge, honesty, and ability* Hubert de Burgh,
the justiciar, had already by his faithfulness, by his military
prowess, and by his wise moderation in public policy, proved •
his fitness to rule. Gualo, in spite of the charges of avarice,
and the general dislike of a legate who claimed so strong a
feudal position as representing the pope, and who might call
himself the king's guardian, was earnest in his support of the
secular government, and faithful to his public duties. But the ?ff^ ]t ,
difficulties of the situation were such as might have proved
fatal to far stronger men. The necessity of securing immediate
1 Langton returned in May 1218 ; Ann. Mailros, p. 196.

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3© Constitutional History. [chap.

The foreign peace had forced the regent to tolerate the retention, by John's
* personal favourites, of an amount of power which could not
safely be trusted to any section of the baronage, much less to a
class of adventurers who were viewed with distrust and jealousy
by all. Some of these wore still numbered in the inner circle of
the king's advisers.
£taJto£to^ The measures for securing the position of the young king 1 , the
Earl of Pem- execution of the remedial enactments of the charters, the exac-
broke. ^ on f fa e due homages from the barons who had not yet pre-

sented themselves in person, from the king of Scots and from the
prince and lords of Wales, occupied the few remaining months
of the earl Marshall's life. One of his last public acts was to in-
duce the common council of the realm to issue a provision, that no
charter, letters patent of confirmation, alienation, sale or gift, or
any other act that implied perpetuity, should be sealed with the
great seal before the king reached full age. This must have
been done soon after Michaelmas 1 2 18 *, in an assembly in which
Departure of it is said that the charters were again confirmed. Immediately
after Gualo returned to Rome, Fandulf, who was already too
Death of the well known in England, being his successor. Early in the spring
nfiaii, of 1 2 1 9, the regent died to the great regret of the whole nation 3 .

1 The Bolls contain evidenoe of the ways in which money was raised in
1217 and 1 218 : — (1) June 7, 121 7, the king mentions a hidage, carucage,
and aid, *quod de praecepto nostro assisum est/ Rot. Claus. i. 310. (2)
The Pope, July 8, 1 2 1 7, orders an aid to be granted by the prelates ; Royal
Letters, i. 532. (3) Jan. 9, 1218, Henry mentions a carucage and hidage,
'quod assisum fuit per consilium regni nostri;' Rot. Claus. i. 348. (4)
Henry meutions a scutage of two marks on the fee, ' quod exegimus,' (Jan.
17), and 'scutagium de omnibus feodis militum quae de nobis tenet in
capita, quod ultimo assisum fuit per commune consilium regni nostri' (Jan.
34), ibid. 349, c£ ii. 87. As the orders for the collecting this scutage were
issued Feb. 22, the same day on which the writs for proclaiming the
charters are dated (Rot. Claus. i. 377), it would seem certain that it was
granted by the assembly in which the charters were renewed, and that
thus, although the constitutional articles were omitted, they were so far
observed. Resides these, tallages are mentioned ; ibid. 359, 364, 370, &c

* Foedera, i. 152; between Oct. 7, 1218 and Feb. 24, 1219, probably
however, November 5 ; on which day the king's seal was first used ; Ann.
Waverley, p. 291 ; Rot. Claus. i. 381. The Annals of Waverley, p. 290,
mention a reissue of the charters at Michaelmas, sealed by both the arch-
bishops and by Gualo. No original charter of this issue is known to be
extant, and possibly the statement is a mistake.

* He died May 14 (Ann. Waverley, p. 291 ), and was buried on the morrow



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xiv.] Administration of Peter des Roches. 31

171. We have no record of any arrangement made to supply Peterdes

his place. It had been proposed to the pope, in 1217, that the as the king's

earl of Chester should be nominated as his colleague *, but he guardmn *

was not chosen as his successor. Henry remained under the

care of the bishop Peter of Winchester; but that ambitious

prelate did not venture to call himself 'rector regis et regni/

nor did Pandulf assert any such right on behalf of his master.

The personal pre-eminence which had been allowed to the earl

Marshall seems to have been inherited by the justiciar, although

the writs which had been hitherto attested by the regent as the

king's representative were frequently from this time attested

by bishop Peter. The bishop's functions were probably those of

the king's personal guardian and president of the royal council.

His policy was to support the foreign influences, which it was His peculiar

the great aim of Langton and the justiciar to eliminate. The

amicable relations which had subsisted under the earl Marshall

were for a short time maintained ; the crusade called away many

of the leaders in the late quarrel, and the specific policy of the

government could not be at once reversed. The second corona- Second coro-
.. i.-1-r i« 1 * 1 1 ij»-»r -nation of

tion of Henry, which was performed on the 17th of May 1220 * Henry, May
by the archbishop at Westminster, was regarded as typical of
the full restoration of peace and good government. The young
king renewed his coronation oaths and received the diadem of
S. Edward. Shortly after the primate went to Borne, and
obtained a promise from the pope * that, after the expiration of
Pandulf a legation, no successor should be appointed at least

of the Ascension, May 17 ; R. Coggesh. p. 364. Gualo left on the 23rd of
November ; Pandulf arrived on Dec. 3 ; R. Coggeah. p. 363.

1 July 8, 131 7 ; Royal Letters, i. 533. In the statement of the charges
against Hubert de Burgh, made in the twenty-third year of Henry III
(M. Paris, Addit. p. 150), the king's agent says that after the earl Mar-
shall's death, the legate Gualo was chosen ' de communi concilio et pro-
viakrae totius regni,' to be ' primus consiliarius et principalis totius regni
Angliae.' This is impossible, and it shows how very soon the very order
of events was forgotten. A council, to be held on June 16, had been called
before tfre earl's death (Royal Letters, i. 37) ; possibly something was done
in it.

* W. Gov. ii. 344: the coronation oath was renewed, 'scilicet quod
eccleaiam Dei tneretur, paoemque tarn cleri quam populi, et bonas regni
leges cu8todiret illaesas.*

* Ann. Dtmst. p. 74.



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32 Constitutional History. [chap.

i*anduif' t during Langton's life ; the legate resigned his commission at

departure. . , ,

midsummer 1221 \
Character of As William Marshall's work was to restore the administrative
Hubert de system, that of Hubert was to replace the working of that
"** system in English hands; his victory was no easy one. The

formal homages paid at the coronation were to be followed by
the resumption into the hands of the government of the royal
castles which were still held by the lords to whom John had
entrusted them f . The measure was one of ordinary prudence ;
it had been frequently practised by Henry II, and by John
Resumption himself, and was now enforced by a papal mandate 8 . The men
mesne/ who professed to be devoted to Henry m had no justification
in resisting. They determined however to resist* and, at the
instigation of the bishop of Winchester, to allege as their excuse
their distrust of the justiciar, a cry which they so pertinaciously
raised as ultimately to draw into their schemes men of ex-
perience and independent position, who had no other ground of
Party sympathy with them. The chiefs of the party were, as might

j£S£t be expected, William of Aumale, Falkes de Breaute*, and Peter
Hubert. ^ e ^f au ] e y . w ft n them was a number of minor leaders, such as
Philip Mark, Engelard of Cigognies, and Gerard of Athies, who
had been proscribed by the charter of Eunnymede, but had
contrived during the succeeding hostilities to maintain and
Uneasy state strengthen their position 4 . Ralph de Gfaugi as early as 12 18,
country. had refused to surrender Newark, until he was besieged by the
regent 6 . William of Aumale in 12 19, had been declared to be

1 July 19 ; * cessit legation! suae ex mandato domini papae ,*' M. Westm.,
p. 280 ; of. Ann. Dunstp. 75 ; Ann. Waverley, p. 295 : ' a legationis
officio revocatur ;' Cont. Flor. Wig. p. 173.

' W. Gov. ii. 244. The barons swore to enforce the surrender, on the
day after the coronation ; Ann. Dunst. p. 57.

* The papal letter ordering the prelates to surrender the royal castles
is dated May 26, 1220 ; Royal Letters, i. 535 : on May 28, Honorius
directed that no one should hold more than two castles; ibid. i. 121 ;
Foed. i. 160: on the 9th of August, Henry ordered the sheriff to inquire
what demesnes were in John's hands at the beginning of the war ; Rot.
Glaus, i. 437. In 1222, April 29, Honorius ordered the resumption of
escheats that had been alienated, Foed. i. 167. A general inquiry into the
rights which John had possessed at the beginning of the war was ordered
by Henry, Jan. 30, 1223, Foed. L 168, and April 9 ,* Rot. CI. i. 569.

4 M. Paris, p. 300. 8 lb. p. 300 ; Ann. Dunst. p. 54 ; Rot. CL i. 379.

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xiv.] Hubert?* Struggles with the Barons. 33

in rebellion for attending a prohibited tournament, and was then Contumacy

fortifying Sauvey \ Now, following the example of his grand- of Aumale.

father, who had refused to admit Henry II into Scarborough, he

declined to surrender Sauvey and Rockingham ; and the young

king immediately after the coronation was brought up with

an armed force to demand admittance. Assisted by the men of His cutlet

J taken in

the county who were called together as of old, he frightened the "*>•
garrisons into flight, and took both castles * ; but after Christ-
mas the earl renewed the quarrel, collected forces at Biham and
seized Fotheringay, a castle of the earl of Huntingdon, whence,
with an assumption of feudal or royal style, worthy of the days He iwM»
of Stephen, he issued letters patent granting safe conduct to
traders moving from one to another of his castles 8 . Vigorous
action was taken against him ; Pandulf excommunicated him,
and the earl of Chester, who, having just returned from the
crusade, was not yet implicated in the design against Hubert,
threw himself zealously into the king's cause. The council of The siege of
the kingdom granted a scutage of ten shillings 4 on the knight's
fee, and before the end of February, Biham was dismantled, and
the earl a fugitive suing for pardon.

The resignation of Pandulf 6 , the return of Langton, and the
defeat of his friend, had now weakened the position of Peter

des Roches : he determined to join the crusade, but finding that Peter des

J ' ° Roches goes

Damietta was already lost, contented himself with a pilgrimage abroad.

to Compostella. His absence did not however ensure peace.

The year ia2a* opened with still more* alarming auguries. The fjj^ nsin

1 Royal Letters, i. 57 ; Hot. Clans, i. 434,

* June 28 ; M. Paris, p. 310. The foroe was composed of • tarn pau-
peres quam divites ex illo oomitatu ;' W. Gov. ii. 245. See Ann. Dunst.
p. 60.

5 W. Cov. ii. 347. Royal Letters, L 168. See Rot. Claus. i. 448, 450.

4 The ' Scutagium de Biham * ; Rot. Claus. i. 458, 465, 475. Biham was
taken Feb. 2 ; M. Paris, p. 310. See Ann. Dunst. p. 64. The expenses of
the siege are noted in Rot. Claus. i. 453.

* The particular circumstances of Pandulf s resignation are detailed by
Dr. Shirley in the preface to the Royal Letters, vol. i ; and Pearson, Hist.
Eng. iL 126.

4 At Whitsuntide Peter de Mauley and Engelard de Athies were arrested
and compelled to surrender their castles ; Ann. Dunst. p. 68 ; the earl of
Derby was ordered to surrender Bolsover and the Peak, June 27 ; Rot.
Claus. i. 502.

VOL. IL D

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34 Constitutional History. [chap.

Theearlof disaffection which had begun with William of Aum&le, showed

joins th* itself in another direction, and now the earl of Chester deigned
opposition.

to be the spokesman of the malcontents. But the prompt

intervention of the archbishop met the difficulty : a threat of

excommunication seconded by argument and persuasion silenced

the earl, who however from this time ranked himself among

Hubert's enemies!.

Hubert en- The next outbreak was in 1223. In the April of that year

1 a 2 v ^h 6 " ^ onor *us m declared Henry, although not yet of age, competent

royal castles, to govern, and issued letters to the barons charging them to

pbey *. At the close of the year Hubert, having just completed

a successful campaign in Wales 8 , thought himself strong enough

to act upon this mandate ; and the earl of Chester, William of

Aum&le and Falkes de Breaute*, attempted to anticipate him.

Disappointed in a design for seizing the Tower of London, they

encamped at Waltham, and sent to the king demanding the

Resistance dismissal of the justiciar. A discussion took place in the royal

byfeter presence, Hubert answering for himself and denouncing the

bishop of Winchester as the secret prompter of the disturbance 4 .

Langton again mediated, and a formal reconciliation took place

at Christmas at Northampton 6 . Six months after, Falkes de

1 W.Cov. ii. 251. The alarm was so great that the pope wrote (April 29)
to the bishops to apply themselves to enforce peace, • cum, siout audivimus,
gravis guerra in regno Angliae incipiat pullulare/ Food, i 167 ; Royal
Letters, i. 1 74.

9 April 13; see Royal Letters, i. 430; M. Paris, p. 318; Ann. Dunst.
p. 83. Curiously enough the bull of Gregory IX, to the same effect,
(Food. i. 190) is dated April 13, 1227. By another Letter, Nov. 20, 1223,
the pope permits Henry to leave the castles in the hands of their present
holders ; Royal Letters, i. 539. Dr. Shirley has collected the notices of
changes in tie holders of castles and counties between Nov. 15, 1223, and
March 2 1, 1224, in Royal Letters, i. 508 sq.

s For this a scutage, the scutage of Montgomery, was taken, two marks
to the fee, and a great tallage from the towns. See Rot. Claus. i. 565, 570,
553; ii34.&c.

4 Ann. Dunst. p. 83 ; M. Paris, p. 319 ; Royal Letters, i. 225. Matthew
Paris mentions amongst the malcontents the earl of Chester, William of
Aumale, the constable of Chester, Falkes de Breautl, Philip Mark, and
even William CantUupe.

* There is a great mass of information on the history of Falkes de
Breaute. He was, it would seem, secretly supported by Peter dee Roches,
and was used if not supported by the earl of Chester and others, as the
leader of opposition to the justiciar. He had negotiated with the Welsh
and also with France. But it is difficult to distinguish between the true



des Roches.



Online LibraryWilliam StubbsThe constitutional history of England → online text (page 4 of 67)