THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION
SUMMARY
Henry II was followed successively by his sons Richard I (1189-1199) and John (1199-1216), and his grandson Henry III (1216-1272). During these reigns every sort of strain was placed upon the administration and upon the infant common law. It is a great tribute to his work that they both survived. Richard was absent from the realm for almost the whole of his ten years’ reign; John was involved in disastrous war abroad, civil war at home, insurrection, invasion and interdict. Henry III was a child of nine at his accession, with only his mother’s bracelet for a crown, and yet a few great-hearted nobles, encouraged by the paternal interest of Pope Honorius III, spared the land most of the troubles which usually attended a minority in those days. And soon, by the middle of Henry’s reign, one of his judges, Henry de Bracton, was already preparing material for an immense and detailed treatise on the common law beside which the little book of Glanvill would seem a mere pamphlet, and he tells us that the best cases are those in the earlier years of the reign—so flourishing was the law even in those troubled times. The secret is surely to be found in the permanence of the administration established by the Norman kings, which withstood all these shocks, grew, prospered, and finally (as every administration must) became the parent of new law, and of new legal machinery.
THE POSITION OF THE CROWN
Then, too, the Crown through all these disasters survived the attempts of certain interests which would have reduced its power to ineffectual limits; on the other hand, the opposite tendency of the Crown to use the powerful machinery of government to institute a tyranny was likewise frustrated. And so, on a broad view, both the oppressions and the rebellions of the period appear as efforts to find and maintain the just mean between private liberty and public order, while through it all, steadily and constantly, proceeds the growth of better and more expert judicial institutions, and the development of more and more rules of law, and their organisation into a coherent legal system which already was beginning to separate from the purely administrative machinery of the realm. By the time we reach the second half of Henry III’s reign the judiciary is already distinct from the administration and can stand aside while the national leaders in arms assert the necessity of imposing restraint upon the speed and the direction of so dangerous an engine; while very soon, Parliament will appear with this as one of its main duties.
THE IDEAS OF HUBERT WALTER
Of all the threads which run through this period, many of them highly important, we shall here follow only one—the struggle for the charters. The absence of Richard I had shown that it was possible for the machinery to work without a king to direct it, provided that there was a trusty minister to take his place. The great Archbishop Hubert Walter took this rôle, and assisted by the great council of magnates ruled well, retaining his power into the next reign. The brilliant outburst of literature, art, law and general culture which marked the close of the twelfth century was accompanied by the development of an idea of government of which Hubert Walter1 was the embodiment.
“King John, in fact, felt with much truth that he was not his own master so long as his great minister was alive. Hubert Walter held the view, natural in an ecclesiastical statesman, that the kingship was an office invested with solemn duties. Royal power must be inseparable from the law. And the Archbishop’s prestige was so great that a word from him on the interpretation of the law could set aside the opinion of the King and his advisers.”2
His successor, Stephen Langton, whom Pope Innocent III forced John to accept, was of the same school, holding that “loyalty was devotion, not to a man, but to a system of law and order which he believed to be a reflection of the law and order of the universe”.3 Conflict was inevitable between such statesmen and John, whose life had been spent in constant turbulence, intrigue and treachery, with complete indifference to “those principles of harmony in life and nature which underlay all the current belief in justice and responsibility”.4 The rapid growth of the central administration and the development of the courts of law (which we shall consider in more detail later5) was only equalled by the growth of local government, of boroughs, of trade both internal and foreign, and the close co-operation of central and local authorities. Litigation, negotiations, compromises, definitions of official power, the statement of precise limits to all sorts of jurisdictions public and private, organisation between groups of towns and the elaboration of machinery for holding international representative chapters in certain religious bodies—these are all signs of the spirit of legal order which filled the opening years of the thirteenth century. It is from this standpoint that the events leading to Magna Carta must be considered.
JOHN AND THE POPE
John’s troubles opened with Innocent III’s refusal to permit his candidate to become Archbishop of Canterbury, the Pope substituting his own much better choice, Stephen Langton.1 The Great Interdict followed, to which John replied by confiscating Church property. The political thought on both sides of the struggle is clear. John regarded bishops as higher civil servants, and looked back to the old days when Church and State in England were mingled, the papacy weak, and the Church subservient to the Crown. Hence he was able to strike the attitude of a patriot against foreign meddling. Langton started by assuming the separate sphere of Church and State, attacked the shifty details of John’s recent conduct, and proclaimed that John’s vassals were not bound to him after he himself had broken faith with the King of Kings, arguing “as an exponent of feudal custom in the light of those high principles of law to which all human law should conform”.2 The conflict was thus one of fundamental principle. John poured out money in Europe to buy support, and built up an imposing coalition against the Pope’s ally, King Philip Augustus of France. Then, in his customary sudden manner, he abandoned all his plans, submitted to Rome and did homage to the Pope’s legate. The next year his allies were ruined in one of the most important battles of the middle ages (Bouvines, 1214). It was now time to reckon with the discontent aroused by the reckless oppression to which John had resorted during the Interdict. Archbishop Langton undertook to force the King to make amends, and produced the old Charter of Henry I as the basis of what was normal and just, adding a long list of more recent grievances. London opened its gates to the barons, and soon after the fifteenth day of June, 1215, John had to put his seal to the Great Charter.3
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