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ruary, 1225, and became the final Magna Carta of English law 18

In the first two reissues a number of chapters of the original Charter of 1215 were omitted and in others important changes were made. Too much emphasis has often been placed upon the omissions as indicating the spirit of the reissues. Of these chapters 12 and 61 have been considered the most significant. But chapter 61 could hardly have been retained. The Charter was now issued, not upon the demand of a successful revolution, but by the government itself which recognized it as binding law and pledged itself to abide by it. If it could be trusted, as it intended to assert that it could be, the special provision for enforcing the law upon the king was unnecessary. The general principle of feudal law, of which it was a modification and limitation, remained always unchanged to be appealed to whether it was stated in the Charter or not. The same thing is true of chapter 12. In the reissue of 1216 several provisions of the original charter are referred to as of doubtful character (dubitabilia) and among them that regarding scutages evidently the chief point in the barons' minds in chapter 12. In requiring the action of the great council upon a scutage the barons had probably gone farther than they intended or desired. In chapter 44 of the Charter of 1217 it was provided that scutages should be taken as they had been in the time of Henry II, which probably shows us all that they intended in 1215, and is in strict law all that they had a right to demand.

A change like this is typical of most of the changes made in John's Charter. They are in the direction of more exact and accurate statements of the law. Some of them look as if they were changes which experience had shown to be necessary from attempts to regard the Charter as statute law to be enforced in the courts. Some of them are the modifica18 Stubbs, S. C., 349-351.

tion of demands which were unjust to the king and many of the additions were in the interest of the more exact statement of the law. In the changes which were new to the reissue of 1217, however, most of them additions, there is evidently some further influence at work. This version contains more new legislation than the earlier Charters; it deals more extensively with matters which are those of government and administration; and it shows some care to protect the interests of the greater barons against their tenants. It should be remembered, however, that through all the series of Charters no modification is made of the fundamental principle that there is a body of recognized law which the king must observe in his dealings with the community.

From the reissue of 1225 on to the end of the middle ages references to Magna Carta are frequent, though less frequent in the fifteenth century than they had been before. Of these references two kinds are of most common occurrence: references in chroniclers and those in official documents, records and rolls. Chronicle references are usually complaints of some violation by the government or its officers, very commonly of the rights of the church. Official references are of many different kinds: legislative and other interpretation of clauses, or more specific application of them, directions as to their enforcement, and quite frequently appeals to the Charter in cases before the law courts as to a binding statute. There is evidence that the omitted chapters are not forgotten but are still sometimes thought of as a part of the Charter and there is evidence of an occasional disposition to treat the Charter as fundamental law binding even parliament. A formal confirmation of the Charter was demanded and obtained several times over of all kings from Henry III to Henry IV, but only once each of Henry V and Henry VI. From the beginning of the reign of Edward III to the end of that of Henry IV the statute roll of each session of parliament as a rule opened with a confirmation of the Charter. These confirmations, as

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has been said, cannot be regarded as intended to continue all the specific provisions of the Charter as binding law; many of them had become obsolete. Their purpose was rather to pledge the king to the fundamental principle that in certain directions his conduct was bound by the law.

BIBLIOGRAPHICAL NOTE.-G. B. Adams, The Origin of the English Constitution, 1920. L. W. Vernon Harcourt, His Grace the Steward and Trial of Peers, 1907. W. S. McKechnie, Magna Carta, 1914. Magna Carta Commemoration Essays, 1917. S. K. Mitchell, Taxation under John and Henry III, 1914. K. Norgate, John Lackland, 1902. F. M. Powicke, The Loss of Normandy, 1913.

CHAPTER VI

GROWTH OF THE CONSTITUTION AND OF

THE COMMON LAW

Magna Carta closes one epoch of English Constitutional History and begins another. The absolute, irresponsible monarchy of the earlier period comes to an end; the limited monarchy begins to form. Of course for a long time the change was very slight, the progress very slow, but the principle upon which in course of time the constitutional monarchy was to be based had been laid down, and it was never to be forgotten nor to lose its fundamental importance in the future.

Magna Carta in itself accomplished nothing. Considered as a code of feudal law, it would have no more power of growth than any other code of law. It depended entirely upon the character of the immediate future whether the principles to which it gave expression should be developed into controlling principles of the constitution or should be forgotten and disregarded. If John had been succeeded by a king as strong as himself, or as his grandson Edward I, or by any king who could have had a suspicion of the results to which the Charter might lead, it would not have been difficult to have pushed it into the background and have prevented any practical reference to it. It was one of the happy accidents of monarchical succession that almost immediately after the Charter came the long reign of a weak king. Henry III succeeded in 1216 and reigned until 1272. During this long period the character of the king was what determined the fate of the germ of constitutional liberty unconsciously given existence in 1215. Henry was not a bad king in the sense in which his father was. He was not

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a tyrant. He intended to be a good king and believed that he was, for he was vain and had great confidence in his own abilities and wisdom. But he was weak both in intellect and will, always under the influence of some one stronger than himself without knowing it, and never able to judge correctly currents of popular feeling which he ought to have understood and heeded.

The line of connection between the character of the king and the growth of the constitution was first made by the exploitation of England by successive swarms of royal favorites from abroad, at first survivors from his father's foreign supporters, like the bishop of Winchester, Peter des Roches, later relatives of his wife from Savoy, and later still his own relatives from Poitou through his mother's second marriage. These men not merely absorbed rich gifts which the king had to bestow, wealthy marriages and wardships, to the intense exasperation of the English barons who believed that as Englishmen they had a natural claim on these opportunities.1 Many of them obtained important offices and an influence in the government, which made them seem responsible for general abuses of practice and policy and forced the English to distinguish still more clearly between the king's "natural subjects" and foreign favorites.

The same result was reached in consequence of difficulties of the reign which were more inevitable. The rising scale of prices, which had so complicated the problems of his father's time, continued through most of Henry III's. The expense of carrying on the government had greatly increased but there had been no corresponding increase in the royal revenues. It was impossible for barons in the thirteenth century to understand the embarrassments which this situation forced upon the government, and it was natural that they should attribute the king's constant demands for money to his reckless extravagance and to the throwing away of money on his favorites. The king gave excuse enough for such a 1 Stubbs, S. C., 324–325.