The papers of Sidney Painter, from which various items have already featured on this site, contain other things worthy of notice. In what follows, I offer two papers that he left in typescript.1 Neither carries a title. The second (and slighter) piece is almost certainly Painter's address 'The Ideas in Magna Carta', delivered as the principal paper to the annual dinner of the Medieval Academy of America on 27 December 1946. It is listed as such in a typescript bibliography that was prepared c.1961, at the time that Fred Cazel brought together the majority of Painter's published essays for republication.2 The first, and more substantial paper, seems also to date from the 1940s. It is marked at its head (in Painter's handwriting) 'Am(erican) Hist(orical) Assoc(ication) published' and was apparently delivered in Painter's capacity as an officer of the AHA. Since it rehearses various ideas that are elsewhere found in Painter's paper on 'Magna Carta', published in the American Historical Review for 1947, it may well be the original draft of that paper, that Painter then condensed and revised, and that Cazel judged too close to the redrafted AHR piece to merit publication.3 Even so, it is certainly good enough to merit posting here. It covers all of the themes of Painter's 1947 American Historical Review article, but here at greater length and often with less cautiousness. It also deserves notice as a period piece, since it was clearly written in the shadow of the dictators, before the death of Stalin in 1953, perhaps before the death of Hitler in 1945.

What, in essence, did Painter contribute to the debate on Magna Carta? First and foremost, he recognized that the charter was not in origin the totem of liberty and democracy that it was subsequently supposed to be. From Yale and his former teacher Sydney Knox Mitchell, and here trawling in the wake of Yale's George Burton Adams (1851-1925), Painter acquired the idea that Magna Carta was essentially a 'feudal' settlement, or as he put it in the first of the papers below 'an agreement between an able but completely unscrupulous monarch and a group of turbulent and greedy barons'.4 Again as he put it, very neatly, in the first of our papers: 'The barons who opposed John have one great advantage in the forum of history - we know little of their private characters'. Many of these barons were 'reckless young men who had just come into their inheritances'.5 Reckless they may have been, but radical they were not. The barons, Painter argued, were essentially conservative, determined to preserve what he continued to describe as a 'feudal system'. We might suppose here that Painter was himself unaware of the tectonic shifts that were taking place, even by 1940, in the study of 'Feudalism' with a capital 'F'. In reality, he was a subtle and perceptive critic of this geomorphology, not least in his 1948 review of Ganshof's Qu'est-ce Que la Féodalité, in many ways the high-water mark of capital-letter 'Feudal' studies.6 On the contrary, like many good historians before and since, Painter considered the (lower-case) adjective 'feudal' simply too useful a concept to repudiate.

At the heart of Painter's discussions of Magna Carta lay a paradox. As he put it, in the second of the papers below, Henry II and his successors 'were tyrants to whom England owes eternal gratitude'. The 'feudal' system within which they worked was itself, contrary to all later assumptions, a guarantee of individual liberties, since feudal 'law bound both lord and vassals' in mutual dependence.7 As the first of his papers proclaims, in origin, 'feudalism was simply the ancient liberties <that later constitutional historians> saw in primitive Germans, moulded into institutional form and hence given both strength and longevity'. As a result, 'one can say that limited governmental power, power bound by customary law, was implicit in the feudal system'. Not just this but, as the second of his papers proclaims, 'the Common Law, the pride of Anglo-American political thought, was a creation of Angevin tyranny'. None of this was apparent to those seventeenth- and eighteenth-century lawyers and politicians who attempted to use the charter for quite other ends. As he put it, writing in 1947, Magna Carta was destined to become:

A symbol of the Anglo-American conception of government. Through it the fundamental features of the feudal system passed into our political tradition. I am inclined to believe that my liberal friends may say - "that is what we have been suspecting all along. Your liber homo is at last as obsolete as the system that created him". But he has lasted a long, long time - far longer than the cives Romanus (sic) - and I am not yet ready to abandon him8

Having published his King John in 1949, Painter was destined never to write another monograph. Instead he turned to general histories, targeted at the broadest possible audience: Medieval Society (1951), The Rise of the Feudal Monarchies (1951), The History of the Middle Ages, 284-1500 (1953), and (with Carl Becker and Yu-Shan Han) The Past that Lives Today (1952), this last a book with a troubled genesis that inspired angry letters from Painter to his publisher.9 His reasons for pursuing breadth over narrow specialism are set out in a survey of recent conference activity that he contributed to the American Historical Review in 1953. If historians were to play any useful role in the struggle between reason and unreason, he argued, then:

This could be done by acting upon Professor Huizinga's definition of history (history is the intellectual form in which a generation renders account to itself of its past). If today our chief problem is to perfect international machinery for the maintenance of peace and settle the present East and West conflict in order that the fatal brutalities of a World War III may be avoided, it needs to be considered whether some medieval historians do not need to rewrite the history of medieval war, medieval international institutions (empire and church), and the medieval conflict between East and West with a view to their contemporary pertinence. If our present world is failing to hand down to all who can absorb it an appreciation of the ideas and humanistic values that go to make up our Western tradition, and is thus contributing to the growth of that ignorance in our midst which is promoting the loss of our freedom, then American medievalists must make sure that the contributions of the medieval period to this tradition are not lost sight of ... The vital essentials of the history of medieval law much be made available in usable form to the general student. It must be the same for the whole precious history of constitutionalism in both theory and practice. In other words, general works on these vital chapters in the formation of the tradition of the West must be given to the American public in a form they can absorb. They must be well written for a wide, popular, even newsstand audience with all the adaptation however difficult or uncomfortable such an audience will require. They must be adapted also for radio, screen, television, as well as for the press. Inasmuch as the survival of the West depends in part upon the correction in the rest of the world of still prevailing medieval institutions and points of view, the knowledge of the medievalist has thus a direct bearing upon the present attempt of America to help lead the West10

A similar sense of public duty shines through both of the papers published below, especially the first, itself very clearly a product of the 1940s. But this is not all. Despite his insistence upon synthesis at the expense of detail, Painter continued to explore avenues down which others, in time, were to follow with great profit. As early as the 1940s, for example, he noticed that the effects of wages and price inflation in England after 1200 put the King at a disadvantage in respect to his barons. This is a point made forcibly in the first of the papers published below, but not fully exploited thereafter until Paul Harvey's seminal article of 1973 on 'The English Inflation of 1180-1220'.11 The second of our two papers casts a glance at the King's 'vis et voluntas', his 'ira et malevolentia' that, as here first noticed in 1946, anticipates by nearly a decade the approach of J.E.A. Jolliffe's Angevin Kingship (1955).12 Painter's willingness to explore the thought world of Stephen Langton may have led him to exaggerate Langton's role in the writing of Magna Carta. Christopher Cheney commented on this in his review of King John, pointing out that in Painter's eyes 'almost everyone was out for himself (king, barons, and pope)' with only 'Langton moving in another and rarefied atmosphere of ideal politics'.13 Even so, the connections that Painter sought to draw between the Paris schools, Peter Lombard, Gratian, and the world of royal law and realpolitik were to be taken up with magnificent success by the greatest of his pupils.

If John Baldwin's Masters, Princes and Merchants (1970) can be viewed as the culmination of this particular Painterian revolution, then in the same way Baldwin's later work on French chivalry, or even the last of Baldwin's work, on Langton and Magna Carta, continued to plough the most profitable of furrows first carved out by Painter.14 As early as 1947, Painter suggested that the 'Unknown Charter' could have arrived in Paris as 'Langton's notes for the charter which he left with his friend Philip Augustus when he passed through France in 1216'. With typical aplomb, Painter then ducked the issue.15 Almost the last of John Baldwin's published papers attempted to reopen this debate, albeit shifting the responsibility from Master Stephen Langton to his brother, Master Simon.16

 

Not only as a memorial to a great teacher, but as a tribute to that teacher's even greater pupil, I dedicate this post. John Baldwin was both friend and critic. He is sorely missed.

 

 

 

Sidney Painter

['Magna Carta and the Rule of Law']17

During the last twenty-five years the basic political principles of the Anglo-American peoples have been under assault from every side. Hence it behooves us who still cherish them to understand their origin and development so that we can evaluate them intelligently and defend them effectively.

What are these basic principles? Here I must leave fine distinctions to my colleagues in political science and describe them in broad general terms. The Anglo-American peoples believe in a democratic government - a government controlled by officials elected by the people, and one that pursues policies in accordance with the will of the majority. But the Anglo-American tradition has no place for an absolute government of any type. Fully as important as the principle of democracy is the right of individuals and groups of individuals to be safeguarded from arbitrary action on the part of the government and from tyrannous behaviour on the part of the majority of their fellow citizens. We believe in a regime of law and we deny that a government, no matter how democratic, can pass any legislation it pleases. This is what distinguishes us most clearly from the totalitarian states. A Hitler or a Stalin may argue, whether validly or not, that he is the choice of the people and hence his government is a democracy. Stalin and his cohorts have the truly magnificent impertinence to call their dictatorship "people's democracies". But no totalitarian state makes even a pretense of respecting the rights of the individual. In fact I am convinced that the Russians have no comprehension of our idea of liberty.

An interest in the origins of our political principles is no recent development. Tudor and Stuart jurists and historians occupied themselves with the subject and their works formed the minds of the founders of these United States. Thomas Jefferson and his contemporaries believed that our ideas of liberty came out of the wild forests of early Germany. The Norman Conquest crushed these liberties under the tyrannical weight of feudalism. Magna Carta marked the restoration of Anglo-Saxon freedom and the humbling of Norman tyranny. As we shall see, Jefferson and his Tudor and Stuart mentors were probably not very far wrong. Their chief error was in failing to realize that feudalism was simply the ancient liberties they saw in primitive Germans moulded into institutional form and hence given both strength and longevity. They were far nearer right than Mr Toynbee who fails to see the elements of liberty in the early Germanic states simply because they were not clearly reflected in political institutions.

The Tudor and Stuart writers I have been speaking of were rather puzzled as to what to think about Magna Carta. It was the first of the English statutes - that they felt sure of. But was it not something more? Coke discovered that it had been confirmed some thirty times during the middle ages and sensed the symbolic value it must have possessed for the men of the fourteenth and fifteenth centuries. He it was, clearly, who began the modern cult of Magna Carta. Since his time it has been clearly recognized as the chief monument of Anglo-American constitutional development. While generation after generation of scholarships have steadily modified the picture of the circumstances under which the Great Charter was issued and have continuously reinterpreted its text, their efforts have resulted in burnishing still more brightly its symbolic value.

Few documents of fundamental importance in the history of civilization can have had as unauspicious (sic) a beginning as Magna Carta. It was an agreement between an able but completely unscrupulous monarch and a group of turbulent and greedy barons. Both parties were essentially insincere. The king agreed to accept the baronial demands because it seemed the only way to gain the time he needed to muster his resources. He had agents gathering mercenary knights and crossbowmen in Aquitaine and Flanders. Other royal emissaries were seeking the spiritual support of the great pope, Innocent III, whose favour John had won two years before by making England a fief of the papacy. The baronial leaders were personal enemies of John who wanted to humiliate him and to obtain lands, castles, and privileges for themselves. They had little interest in the clauses of the charter that did not serve that specific end. To them the bulk of the document was a manifesto intended to gain the support of the English feudal class as a whole for their private quarrel with John.

King John has done (recte gone) down in history as a "bad man". I have no desire to rehabilitate his reputation. He was a thoroughly unpleasant character - licentious, cruel, faithless, irreligious if not simply blasphemous, and a lover of devious means. No one liked or trusted him. As a producer of illegitimate children his only competitors in the English royal line are his grandfather Henry I and Charles II. He either murdered or procured the murder of his politically inconvenient nephew. A noble woman and her son were starved to death for having referred to this little incident. He solved the problem facing all rulers of how to be agreeable and yet yield nothing by a highly ingenious system of counter-signs. If he knew some baron was going to ask for the custody of a certain castle, he would tell the constable only to deliver it if the king's letter included certain words. Then he could cheerfully give the baron letters that would be of no value. I may add that we know of this because John was continually forgetting the counter-sign. The only pleasure one can get from a study of John's personal character comes from this ingenuity he showed in his perversity. Once in a bit of penitence he agreed to found a Cistercian abbey. He donated some royal land useless for any other purpose, pillaged the estate of the recently dead bishop of Winchester to build the buildings, and ordered the Cistercian houses of England to supply the new abbey with stock. When he broke with Rome in 1208, he seized the concubines of all the English clergy and forced the clerks to ransom them. Thus he pillaged the funds of the church, yet it was difficult for earnest churchmen to object.

The barons who opposed John have one great advantage in the forum of history - we know little of their private characters. But it is clear that with some few exceptions they were no better than their master. Two of their chiefs, Robert fitz Walter and Saher de Quency, had shown themselves to be either poltroons or traitors when they surrendered the great Norman fortress of Vaudreuil to King Philip Augustus in 1203. Robert was besides a most cheerful liar. It is pretty clear from the contemporary chronicles that the baronial party as a whole aroused little enthusiasm among their fellow Englishmen. Everyone understood the basic motives of the rebels - personal hatred of John and consuming greed.

The agreement between these two unlovely parties was as short-lived as one would expect. Immediately after Magna Carta was issued the barons set to work to use it for their own private gain. Lands, castles, and privileges were extorted from the king - some on the most frivolous of claims. John on his side promptly sent messengers to Rome to ask the pope to declare the charter invalid. Three months after the solemn making of the agreement, the civil war was raging at full force.

Contemporary chroniclers barely mention Magna Carta. A few state that the king granted his barons some liberties. Roger of Wendover writing some years later realized that it was an important document but failed to find the right text. He inserted in his chronicle the second re-issue of the charter. Not till the seventeenth century was the actual text of John's charter generally known.

The very content of Magna Carta seemed designed to doom it to early oblivion. It was drawn in an antiquarian spirit at a time when institutions were changing very rapidly. If one had asked a baron what end the terms of Magna <Carta> were intended to achieve, he would have said that it was to put a stop to "bad customs", the medieval expression for innovations. But these hated innovations, the inventions of Henry II, Richard, and John, were to a great extent necessary under the circumstances of the day. A large section of Magna Carta was devoted to stabilizing the English feudal system as the barons believed it had existed under Henry I. But in 1215 feudal institutions were rapidly decaying. The rise of towns, the development of trade and commerce, the growth of markets for agricultural produce had changed the whole economic structure. No longer did the king think of his barons primarily in terms of the service they owed him but rather as sources of money income. This was even more true of the relations between ordinary lords and their vassals. Most English knights had forgotten that they were expected to serve their lords in war - they thought of this obligation as an occasional money payment. Perhaps the most striking example of this antiquarian spirit in Magna Carta was the assembly provided for giving consent to special financial levies. The king was to summon all tenants-in-chief to such a meeting. At no time in the history of England would an assembly of this sort have made any sense - the English kings had always had great numbers of petty tenants-in-chief. But the barons were setting up an ideal feudal assembly and tenure was the basis of feudal organization.

Another section of Magna Carta was devoted to an attempt to check the crown's attempts to increase its revenues. The general purpose was to stabilize the return from the various sources of royal income at figures fixed in the past. In an age of rapidly rising prices and increasing returns from both agriculture and commerce this could lead to but one of two results - the destruction of the royal government or the ignoring of the terms of the charter. Actually these provisions were not as dangerous as they probably appeared to John and his officials. The ancient sources of royal revenue were becoming as obsolete as the feudal system. New ways of raising money, barely conceived of by the framers of the charter, were to replace them within a century.

Thus Magna Carta was conceived in insincerity. Neither of the opposing parties took it seriously and it was almost ignored by contemporary writers. Its total immediate effect was to secure a three months truce while both sides prepared for war. Moreover almost all of its specific provisions were designed to restore the past in a time of rapid, radical change. Twenty years after Magna Carta was issued very few of these provisions were of the slightest interest to anyone.

Why then is Magna Carta an important monument of Anglo-American political history? To answer this we must glance at certain basic principles of the feudal system and at the purpose conceived by a truly great man, Stephen Langton, archbishop of Canterbury. The feudal system was essentially an arrangement by which the soldiers of the middle ages, the knights, could achieve the military and political cooperation needed for existence with the minimum amount of restraint on their freedom as individuals. The relations between a lord and his vassals, be the lord a king or a petty baron, were worked out in the lord's court by the vassals themselves. By this means certain customary law was developed governing the mutual obligations of the two parties. This law bound both lord and vassals. Thus one can say that limited governmental power, power bound by customary law, was implicit in the feudal system. It was, in fact, so thoroughly assumed by the men of the time that it rarely if ever found expression in writing.

Stephen Langton was perhaps the most eminent man of his day, with the possible exception of Pope Innocent III. Born in Lincolnshire, of a family of petty knights, he early became a canon of York. Using, as was the custom of his day, the stipend of that office as a sort of scholarship fund, he attended the university of Paris and rose to be a professor of theology and a canon of Notre Dame. As such he played a vital part in an extremely important process - the development of church doctrine and policy as an orderly system. Up to the eleventh century there had been no body of doctrine and law generally accepted by the whole church except the gospels and the writings of the church fathers, and these were open to widely varied interpretations. Each local church had its own peculiarities in both law and doctrine. During the eleventh century the revived study of the great Roman codes had placed in men's minds the conception of general law. In the twelfth century Gratian produced the first complete, orderly, and systematic code of canon law. Peter Lombard in his Sentences performed the same service for doctrine. The task of the next few generations of churchmen was to interpret these works and apply them throughout Christendom. As professor of theology at Paris, Langton interpreted Gratian and Peter Lombard. Later, as a cardinal and member of the papal curia, he played a part in attempting to apply them. Now it would naturally occur to a man who had devoted his life to the development and application of a general code of law governing the internal polity of the church and its relations with the outside world that a similar system of law could be applied to secular affairs. To him it seemed obvious that accepted law should govern the relations between king and people.

Langton's succession to the see of Canterbury was the result of a disputed election settled in the papal court. His long residence in France and the fact that he had been chosen without the royal assent made him unacceptable to John. For seven years after his consecration he was unable to enter England. During this period he met in France the future chief of the rebel barons, Robert fitz Walter, who had fled from England after an abortive revolt against King John. It seems likely that Langton succeeded in persuading Robert <that> the barons who opposed John needed more than a list of private grievances - that they needed a program that would appeal to the feudal class as a whole. To Langton this meant a general statement of the law governing the secular affairs of England.

Langton returned to England in 1213 to find the relations between John and his barons extremely strained. The same peace with the church that restored Stephen had brought back from exile Robert fitz Walter and his accomplices. In the summer of 1213, John summoned his host for an expedition to Poitou. Many barons refused to go, and the enraged king mustered his forces to punish them. Peace was finally patched up through the mediation of Langton and the papal legate, Nicholas of Tusculum. In the royal archives of France there exists a document that seems to be a set of notes made on this agreement by a French spy. As the quarrel had arisen over the question of making an expedition against him, King Philip of France was naturally interested in knowing the terms of settlement. He may well have been comforted by a provision that the barons need only follow John across the sea if he went to Normandy or Brittany. But our interest centers in another provision - the very first in the list: "King John agrees that he will not take a man without judgment". This provision was pertinent at the moment - the king had started to punish his foes without a judgment by his court. It also must have been close to <the> hearts of Langton, Robert fitz Walter, and others whose relatives had been imprisoned, dispossessed of their property, and driven from England while they were in exile abroad. None of this, however, alters the fact that this clause struck at the very heart of arbitrary action by the king.

In the autumn of 1214 baronial leaders met in conference with Stephen Langton. Apparently the archbishop once more urged the importance of a broad general program that would appeal to the whole feudal class. While we do not know just when the document that embodied this program, the "Articles of the Barons", was drawn up, it was ready for presentation to John in June 1216 (recte 1215). It contained, in article 29, the vital provision that we have seen in the earlier agreement: "the body of a freeman shall not be taken, nor imprisoned nor deprived of its property, nor outlawed, nor exiled, nor in any way destroyed, nor will the king go against him or send a force against him unless by judgment of his peers or the law of the land". King John at Runnymead had his seal affixed to the Articles of the Barons and ordered his clerks to embody its provisions in a formal charter. This provision, slightly improved in wording by the skilled royal clerks, appears as article 39 of Magna Carta.

As this clause appears in Magna Carta it has two important elements - the provision itself, and the group to which it applies. Scholars will probably never agree on the exact connotation of "per legale judicium parium suorum vel per legem terrae". But it clearly meant what we think of as "due process of law". The king could not deprive a free man of his liberty or property except by a judgment rendered by the appropriate court. It forbade the exercise of arbitrary power.

Who were these freemen to whom this safeguard was granted? How many of them were there and what proportion of the population of England did they represent? These questions unfortunately cannot be answered precisely. The ranks of freemen included the whole feudal class, that is all those who held land by knight service, those who held by serjeanty, and agricultural tenants in socage. In all probability it included the burg(h)ers of the towns. But it certainly excluded the vast mass of the people of England who were unfree villains. But even as the charter was issued the ranks of freemen were growing and the process was to continue, until by Tudor times all Englishmen were free. And as each man reached that status he was cloaked in the protection of this clause of the charter.

I have probably dealt (recte ?dwelt) too long on this one vital clause of the Great Charter. It is the only one of the detailed provisions to have real meaning for later times. Moreover it shows clearly the central theme that gives the charter its importance - government by law. But even if this clause were not there, if all the specific provisions of Magna Carta had become meaningless the day after it was issued, it would still be an important constitutional monument. Magna Carta by its very existence made explicit the conception of government by law that was implicit in the feudal system. By issuing it John formally admitted that the king was subject to the law.

This was fully realized by later generations. Throughout the middle ages whenever the barons, or later Parliament, felt that the royal power was waxing too great, the king was called upon to confirm Magna Carta. It was a most convenient device. By this means a king could be forced to admit the supremacy of the law without starting a quarrel over some contemporary issue. Thus the details of Magna Carta were to a large extent forgotten, but it was vitally important as a symbol.

There is one further question I should like to explore. When Thomas Jefferson spoke of the rights of individuals that originated in Anglo-Saxon society, he was clearly thinking in terms of "natural rights". In short, he and his contemporaries believed that man had rights that no government could take away by legislation. This conception lies behind our Bill of Rights and is an important part of your political ideaology (sic). One cannot but wonder whether there was any such idea in the minds of the framers of Magna Carta. To this there can be no positive answer - the charter affirms the rule of law, but says nothing as to how that law is made. Stephen Langton would undoubtedly have argued that no man-made law could infringe the law of God. I suspect that he considered freedom from arbitrary arrest a God-given right, but I cannot prove it. It was the Tudor and Stuart writers who implanted "natural rights" in Magna Carta. Coke for instance was particularly fond, in his Commentaries, of supplying biblical authority for the clauses of the Great Charter. But while the "natural rights" of man were essentially a product of the seventeenth and eighteenth centuries, they were closely akin to the mediaeval church's concept of God's law and the "ius gentium" of the Romans. And the American of today is the proud successor of the "civis Romani" and the "liber homo" of Magna Carta.

 

 

 

Sidney Painter

'The Ideas in Magna Carta'

Magna Carta is a political document - an agreement between a king and an important segment of his subjects. Hence its background, from the point of view of the history of ideas, lies in the current conception of the nature and extent of royal authority.

In some periods of history there has been fairly general agreement on this subject, but this was by no means the case in the late twelfth and early thirteenth centuries. There were varied views based on different basic ideas as to the source of authority and different attitudes towards its nature and extent.

King John of England was a feudal monarch - that is he was both rex and dominus.

As the successor to the Anglo-Saxon kings he retained elements of Germanic monarchy - he was an elected military leader with vague peacetime duties of supervising the functioning of ancient customary law.

But around him clustered the ideas of kingship which had been preserved by ecclesiastical writers from those of ancient monarchy - the Hellenistic kings and Roman Emperors.

The ecclesiastical writers agreed in one particular - God was the ultimate source of power and the king was God's lieutenant. They also believed that it was his duty to rule according to law. This law was something established by God, everlasting and immutable, but naturally not very clearly defined. There was, however, a decided difference in the views of these writers as to the royal power. Some maintained that a king who did not uphold the law was no king but a tyrant, while others said that a wicked king was just as sacred as a virtuous one. He was God's punishment for man's sins. It is important, however, to remember that these ecclesiastical ideas of kingship had little circulation among laymen. What modern writers call the "political ideas" of the Middle Ages had a rather slight connection with contemporary politics.

In contrast to these traditional conceptions of kingship which the Middle Ages inherited from ancient and Germanic monarchy was the purely feudal one under which the king tended to be merely the dominus, the apex of the feudal hierarchy. His authority depended on feudal law which bound him as well as his vassals. Actually it is inaccurate to speak of a feudal law. Feudal customs were developed in every fief and differed from fief to fief. When we say that John was subject to feudal law, we mean the law developed by the curia of the English kings - the king and his vassals. There could be disagreement over what this law was, but its source was clear - agreement between lord and vassal. The difference between king and baron was of degree not of kind.

Thus when an English king swore at his coronation to uphold the law this meant in reality several different sets of law.

While the ecclesiastic might think of this law as a rather vague Divine Law, this meant little to Englishmen as a whole. To them the king was swearing to uphold the ancient customary law, the laws of Edward the Confessor as they would have called them, and feudal custom as developed in his court.

Actually the English kings had merged the customary and feudal law and radically modified both, principally by new administrative devices. The result was the English Common Law - the law of the king's court. "Common" because it applied to the whole realm and did not vary from shire to shire and fief to fief.

Now the question naturally arises - Had John and his predecessors upheld these various laws? In ecclesiastical terms had they been kings or tyrants? The answer can only be that they were tyrants to whom England owes eternal gratitude.

Henry II, Richard, and John had violated the basic contemporary conception of law as something fixed and stable by creating new law. While it was done by administration rather than formal legislation, they clearly changed and added to the law.

They also used their powers as rex to develop administrative devices contrary to law. The king had an undoubted right to collect his dues - but he dis(s)eised and imprisoned debtors.

Thus in the language of the day the king developed "bad customs" - that is new ones.

But far more obvious to their contemporaries was their tendency to arbitrary action. Occasionally they acted by their "will alone". Men suffered from the "king's anger". People who had committed no offence against the law, who had certainly never been tried in a court, were forced to purchase the king's "grace" and "goodwill".

This was tyranny, but it is important to remember that customary and feudal law could never have allowed the creation of a strong and effective state. The Common Law, the pride of Anglo-American political thought, was a creation of Angevin tyranny. When John was forced to issue Magna Carta, the English monarchy was already firmly forged.

Now King John was a thoroughly unpleasant person who had made lots of personal enemies among his barons. He was also considered a weak military man and hence a good one to rebel against. John's personal foes and their friends were also greedy for lands, offices and castles. These men instigated the revolt against him. But wiser men, perhaps Stephen Langton and William Marshal, persuaded them that they could not win general support without a program of wide appeal. This was an appeal to all three kinds of law mentioned above - feudal, customary, and God's.

Stephen was deeply versed in the canon law. He had the conception of an established law that would rule secular affairs.

Magna Carta reflects clearly this background. It has a number of distinct elements.

 

            1. Statement of certain principles of feudal law - relief, marriage, etc.

            2. Promises by the king to stop certain administrative, financial and legal

              practices.

            3. The final section, which the barons hoped would give them their booty.

            4. Certain general statements which do not fall into any one of these classes.

 

Most of the detailed provisions of Magna Carta were soon obsolete. Only a few provisions have long-range influence.

In the feudal section there is a provision that the king can take special aids only by the commune consilium regni nostri. This is sound feudal custom - services to be increased only by mutual agreement. And this counsel is to be obtained from a purely feudal body, prelates, barons, and all who hold of us in chief. There is, however, here the germ of the idea "no taxation without representation", and it was one of the factors leading to the later creation of Parliament.

Another feature of Magna Carta which was of fundamental importance for the future was its statement as to whom it covered. In the introduction it says that the privileges listed are granted to omnibus liberis hominibus. The fact that some clearly only apply to barons does not weaken the effect of this general statement. The king is making promises to all free men. Unfortunately I cannot tell you just what he meant by free men. There are hints in the charter itself that it did not include townsmen, although I believe it did. I think it included all but the clearly unfree, the villains.

This leads us naturally to the most important passage in the charter: "No free man shall be taken, imprisoned, disseised, outlawed, exiled, or destroyed in any other way nor shall we go against him or send against him except per legale judicium parium suorum vel per legem terrae".

The exact meaning of this passage has been debated endlessly. Obviously the crucial words are the per legale judicium parium suorum vel per legem terrae.

In the time of the Stuarts it was generally believed that "legal judgement of his peers" meant trial by jury. This is certainly a mistake. The jury was an invention of the royal government which was looked on with grave suspicion by the barons. It was a chief instrument for the spread of royal jurisdiction. A few years later the barons were to prevent its use unless the accused asked for it.

Legale judicium parium suorum is a purely feudal expression. It means a vassal's right to trial by his peers in his lord's court, and a baron's right to trial by his peers in the king's court. The same idea is expressed in another clause of Magna Carta - barons must be amerced by their peers, not by professional judges. In short when this procedure was appropriate, it should be used.

Legem terrae means the general customary law. It could mean trial by battle, trial by ordeal, or trial by jury.

The whole however states a vital principle - the free man's right to due process of law. His freedom and his property are not to be taken arbitrarily.

There is some reason to believe that this clause was contributed by Stephen Langton. In the so-called "Unknown Charter" it is the first clause. Stephen's family and friends had suffered heavily from such arbitrary action. Moreover it fits with Stephen's idea of a general rule of law. But be that as it may, it has been a vital part of Anglo-American law.

But you well ask "Is this all?" Does the fame of Magna Carta as a foundation of Anglo-American liberties rest on one or two passages?

Fortunately it does not. It rests on the charter as a formal recognition of a basic mediaeval idea - that the ruler must be ruled by the law.

As I have already suggested, it seems clear that feudal custom was always regarded as a contract between lord and vassal and was binding on both. Again one can point to the statements of political theorists about the king's duty to observe the law. But here is a king admitting all this. By issuing Magna Carta John agreed that he was subject to the law.

This was clearly realized during the later Middle Ages. Magna Carta was reissued many times between 1215 and 1485. After 1225 few changes or additions were made. As I have indicated above, most of its detailed provisions were soon obsolete. But Englishmen realized that it represented a principle. Whenever they felt the king was getting out of hand, yet they had trouble putting their finger on actual acts of tyranny, they simply got him to reissue or rather confirm Magna Carta.

 

1	Both are preserved in Baltimore, Johns Hopkins University, Sheridan Libraries, RG 04.110 (Department of History Papers, Subgroup 1 Series 3) Box 3 file 1 ('Talks').
2	Ibid. Box 2 file 17 'Bibliography' p.7 'Papers'.
3	Painter, 'Magna Carta', American Historical Review, liii (1947), 42-9, reprinted thereafter in Painter's collected essays, Feudalism and Liberty, ed. F. Cazel (Baltimore, 1961). Rather confusingly, Painter himself (American Historical Review, (1947), 42n.) identifies the published paper of 1947 with the talk given in December 1946: 'read at the dinner meeting of the Mediaeval Academy and the American Historical Association, December 27, 1946'. In the typescript bibliography, nonetheless, the typescript from 1946 and the published paper of 1947 are cited as two distinct entities.
4	By the time of Painter, 'Magna Carta', American Historical Review, (1947), 42, this had become a 'completely unscrupulous and opportunistic king and a small group of his barons'. Outside Yale, Adams' impact came chiefly through his History of England from the Norman Conquest to the Death of John, 1066-1216 (London/New York, 1905), and his Constitutional History of England (New York, 1921). As befitted a venture presided over by Lord Bryce, Adams was one of two academics based in America (the other being Charles Howard McIlwain of Harvard) invited to contribute to the volume of Magna Carta Commemoration Essays, edited by H.E. Malden for the Royal Historical Society (London, 1917). Adams dealt with Innocent III, McIlwain (1871-1968) with 'Magna Carta and the Common Law'. The chapter in that volume on the influence of Magna Carta on the American constitution, meanwhile, was assigned to the Cambridge legal historian, Harold Dexter Hazeltine (1871-1960), a Pennsylvania-born graduate of Brown and Harvard, but since 1907 a Fellow of Emmanuel College and in due course Downing Professor of Law.
5	Painter, 'Magna Carta', American Historical Review, (1947), 42.
6	American Historical Review, liii (1948), 317-18, and cf. Painter's review of André Déléage, La vie économique et sociale de la Bourgogne, in The Journal of Economic History, vi (1946), 199-201, here apparently without knowledge of Marc Bloch's La Société Féodale (1939-40), and some years before the revolution caused by Duby's Société dans la région Mâconnaise (1953).
7	A point closely related to that developed by Painter in his essay, 'Individualism in the Middle Ages', Annual Report of the American Historical Association, 1942 vol.iii (Washington, 1944), 239-43, reprinted in Painter, Feudalism and Liberty, 254-9. For a critique here, see J.F. Benton, 'Individualism and Conformity in Medieval Western Europe', Individualism and Conformity in Classical Islam, ed. A. Banini and S. Vryonis, Jr. (Wiesbaden, 1977), 145-58, reprinted in Benton, Culture, Power and Personality in Medieval France, ed. T.N. Bisson (London, 1991), 313-26.
8	Painter, 'Magna Carta', American Historical Review, (1947), 49.
9	Johns Hopkins University, Sheridan Libraries, RG 04.110 (Department of History Papers, Subgroup 1 Series 3) Box 2 file 19 ('Papers and Correspondence'), letters to Silver Burdett Co. from 1943 onwards, frequently complaining over the publishers' delays.
10	Painter, 'The Washington Meeting, 1952', American Historical Review, lviii (1953), 743-4.
11	And see also Painter, 'Magna Carta', American Historical Review, (1947), 43; P.D.A. Harvey, ‘The English Inflation of 1180-1220’, Past and Present, lxi (1973), 3-30. In the first essay below, Painter writes: 'Another section of Magna Carta was devoted to an attempt to check the crown's attempts to increase its revenues. The general purpose was to stabilize the return from the various sources of royal income at figures fixed in the past. In an age of rapidly rising prices and increasing returns from both agriculture and commerce this could lead to but one of two results - the destruction of the royal government or the ignoring of the terms of the charter'.
12	See here Jolliffe's highly favourable review of Painter's King John (Speculum, xxvi (1951), 196-8), commending Painter not least for his close familiarity with the record sources, in due course one of the great qualities of Jolliffe's book. Painter himself reviewed Angevin Kingship in the American Historical Review, lxi (1956), 381-2, commending Jolliffe for turning 'what was formerly an impression into an established fact', yet taking issue with his rigidity over 'feudal ideas': 'I am inclined to doubt that feudal ideas were so definite and precise that one can say such and such an action violated them. Feudal law was essentially custom and what has been done effectively soon becomes customary. We do not know enough about the development of feudal ideas to be certain that at a particular time a particular act was contrary to them'.
13	Cheney, in English Historical Review, lxvi (1951), 264.
14	See in particular J.W. Baldwin, 'French Chivalry Revisited: The Guillaume de Dole of Jean Renart', Haskins Society Journal, i (1989), 183-91, published very much en hommage. See also the autobiographical essay by Baldwin, 'A Medievalist and Francophile Despite Himself', Why France? American Historians Reflect on an Enduring Fascination, ed. L.L. Downs and S. Gerson (Ithaca, 2007), 21-34, at p.24-5 describing his time at Johns Hopkins in 1951-3, but noting that Painter 'had little interest in intellectual history' and quickly passed Baldwin on for more expert tuition by Stephan Kuttner at the Catholic University in Washington.
15	Painter, 'Magna Carta', American Historical Review, (1947), 48, concluding that 'Unfortunately the only support for this theory is that there is no evidence against it. Not even a medievalist can go far with that'.
16	J.W. Baldwin, 'Master Stephen Langton, Future Archbishop of Canterbury: The Paris Schools and Magna Carta', English Historical Review, cxxiii (2008), 811-46, esp. pp.839-46.
17	The title is mine, not Painter's. As noted above, this particular typescript carries no title, with only a handwritten heading by Painter 'Am. Hist. Assoc. (published)'. It seems to me to be an extended draft, later condensed into the form published in the American Historical Review for 1947. In this and the following paper, and as in editing Painter's short story in a previous post, I have occasionally altered punctuation, but not wording or spelling.