One important change made to the version of Magna Carta issued by King Henry III in 1217 was the addition of a saving clause. This came close to the end of the Charter and followed immediately on from the statement that the customs and liberties which the king had conceded to be held in the kingdom ‘as much as it pertains to us to our men’, all men (‘omnes’) of the kingdom, both clerks and laymen, were to observe towards their men. The new clause then continued:

Saving to archbishops, bishops, abbots, priors, Templars, Hospitallers, earls, barons and all other persons, ecclesiastical and secular, the liberties and free customs which they had before.

Salvis archiepiscopis, episcopis, abbatibus, prioribus, Templariis, Hospitalariis, comitibus, baronibus et omnibus aliis tam ecclesiasticis personis quam secularibus, libertatibus et liberis consuetudinibus quas prius habuerunt.

With the clause placed like this, the implication was that it qualified the obligation of lords to pass the concessions down to their own men. Their doing so was not to infringe their existing ‘liberties and free customs’. This impression was enhanced by the ablative absolute construction of the clause (‘Salvis…libertatibus) which meant that it was not a sentence in its own right and needed to be linked on to what came before.1

If, however, the saving clause was intended to be read in this way, the same was not the case with the Charter of the Forest which was issued alongside Magna Carta in 1217. There the clause did not qualify the obligation to pass down the liberties because it appeared immediately before not immediately after that injunction. This set the pattern for the future. The final and definitive version of Magna Carta in 1225 fell into line with the Forest Charter of 1217 and its successor the Forest Charter of 1225.  Thus, in Magna Carta, the saving clause was now placed before not after the general obligation to observe the Charter. The start of the clause was also remodeled to show that it no longer had any connection with the preceding chapter (which was now that on scutage). The ‘Salvis archiepiscopis…’ construction was thus replaced by ‘Et salve sint archiepiscopis…’ making the clause for the first time a free standing sentence.2   

In looking at textual variations between the various versions of Magna Carta, the historian has sometimes to ponder whether these are simply improvements in drafting with little political mind behind them or whether they are related to significant debates over the text’s bearing and intent. It could be that the saving clause was always meant to occupy its 1225 position and it was only careless drafting in 1217 which put it elsewhere. A different view would be that the changes reflect a real struggle between those who wished to qualify the obligation to pass down the concessions and those who did not. In support of this view, one could point to other changes made in 1217 to protect the position of lords, as well as changes introduced in 1225, perhaps at the behest of Archbishop Langton, to make the Charter more inclusive.3

The purpose of this feature is to lay before the public some hitherto unknown evidence that bears on these questions. It comes from two copies of the 1225 Charter belonging to Burton abbey, one found in the abbey’s chronicle, and the other in a volume which contains its cartulary. I am most grateful to Philip Morgan for drawing the latter copy to my attention. While not in any way settling the question of what the drafters of Magna Carta themselves thought they were doing, the evidence does suggest that, at Burton abbey, the saving clause was indeed regarded as qualifying the obligation to pass the liberties down to ‘men’. The episode is also, as far as I know, unique in revealing a reaction to a change in the text of Magna Carta.

The Benedictine Abbey of Burton on Trent in Staffordshire was founded by Wulfric Spot in 1004. At the time of Domesday Book it had extensive lands both in Staffordshire and Derbyshire. The abbey chronicle is known from a unique copy now preserved as Cotton Vespasian E iii in the British Library. It was edited by H.R. Luard and published in the Rolls Series.4 Covering the period from the foundation of the Abbey down to 1263, where it breaks off abruptly, the chronicle is a key source for the reign of Henry III, being particularly notable for the large number of original documents it contains. The most famous is, of course, a draft of the 1258 Provisions of Oxford. Among the documents is a copy of the Magna Carta of 1225. It is for the most part a full and accurate text without the variations found in so many other copies.5 Each chapter starts on a new line marked with paragraph mark, the latter coloured alternatively red and blue. Just when the text was transcribed we cannot know exactly. The chronicle is uniform in appearance and is clearly a fair copy. Luard thought the hand was fourteenth century but the second half of the thirteenth century might be a better guess.6

For our purposes the copy of Magna Carta becomes interesting when we arrive at the chapters with the saving clause and the general obligation to pass down the concessions. These are in the correct 1225 place with the former (‘Et salve sint…’) preceding and thus not qualifying the latter. But a marginal note written against the chapter setting out the general obligation suggests that someone at Burton was unhappy with this new arrangement.7 The ink and hand of the note are different from that in the text but I think thirteenth-century. The annotation reads as follows:

‘tam clerici quam layci salvis’, ‘both clerks and laymen saving’.

In the printed edition Luard referred to the ‘tam clerici quam layci’ part of this note but not the ‘salvis’. It is true that the ‘salvis’ appears below the ‘tam clerici quam layci’ but this is simply due to the exigencies of space. It is in the same hand and ink and is manifestly part of the same annotation. Thanks to the omission, however, Luard was able to think that the annotator was doing no more than supplying ‘tam clerici quam layci’ to the text of the chapter where it is indeed missing. So Luard’s text reads ‘…omnes de regno nostro [tam clerici quam laici] observent…’ with a footnote indicating that the ‘tam clerici quam laici’ (actually it is ‘layci’) were inserted in the margin in a later hand. 8  Yet it is pretty clear that more is happening here than simply the correction of an omission, even if it was the omission which set off the train of thought in the annotator’s mind. There is no indication that the annotation was meant to supply missing words in the text and in any case, with the ‘salvis’, the addition would have made no sense.9 Rather, the author of the note has been prompted to think back to the ‘salvis’ clause in the 1217 Charter and the way it qualifies the general obligation to pass down the concessions. In effect his note is asserting that the same remains true in 1225 despite appearances to the contrary.

This interpretation is strengthened when we look at Burton’s second copy of the 1225 Charter, that bound in with the abbey’s principal cartulary. A large part of this cartulary dates to the period between 1230 and 1241, but there are then additions made into the fourteenth century.10 The copy of Magna Carta is followed by the 1225 Charter of the Forest, the 1253 sentence of excommunication against violators of the Charters, the confirmation of that sentence by Innocent IV in 1254, and the 1236 Statute of Merton.11 The latter breaks off abruptly in the first chapter, leaving the rest of the folio blank.12 All this material, from Magna Carta to the Statute of Merton, is not actually part of the cartulary. It is simply bound in at the end of the volume and is in a large book hand different from the small cursive hand of the cartulary itself. I have not the expertise to date the copy of Magna Carta and its allied texts at all closely, but I wonder if they were made before the end of the thirteenth century. If later one might have expected the copy of the 1225 Charter to be that confirmed by Edward I in 1297 or 1300. There is no reason to doubt the Burton provenance of the Magna Carta texts. The binding of the volume is late medieval, so it was presumably at Burton that the cartulary and the Magna Carta material were brought together. Burton certainly possessed that material as well as a text of the statute of Merton  since they are all found in the chronicle.13 At first sight this might suggest that the copy of the 1225 Magna Carta in the cartulary volume was taken from the copy in the chronicle. But this seems unlikely since the divisions into chapters do not match up. Perhaps both copies came from a text possessed by Burton with the copyists making different decisions as to where the chapter divisions should go. If the text was an original engrossment such differences of choice are perfectly understandable since the divisions in the 1225 engrossments were no longer marked by the large and emphatic capital letters found in 1215.

How then does the copy of the 1225 Charter in the cartulary volume deal with the saving clause? In a remarkable way is the answer. For the copy returns the clause to its 1217 position where once again it qualifies the obligation to pass down the concessions. The decision to make this change was quite deliberate for the clause is not merely back in its 1217 position. It also starts ‘salvis’ as in 1217 rather than ‘Et salve sint’ as in 1225. Indeed, the scribe made the qualification even clearer than in 1217. Whereas all four surviving 1217 engrossments begin a new sentence marked by a pronounced capital ‘S’ in the ‘Salvis’, the Burton scribe, runs straight on with a small ‘s’, ‘salvis’.

The precise relationship between the treatment of the saving clause in Burton’s two copies of Magna Carta I cannot unravel. Conceivably the view expressed in the marginal annotation inspired the doctoring of the cartulary copy. Conceivably the cartulary copy inspired the annotation. Those better equipped to date medieval hands may throw more light on the matter. Why the issue was so important to Burton is, however, apparent. In the thirteenth century the monastery was involved in acrimonious disputes with the men of its manors. Two of these are described at length in the cartulary.14 The first in 1236-7 involved the men of the manor of Abbot’s Bromley in Staffordshire. The second in 1280 the men of Mickleover in Derbyshire.15 In both cases the men claimed that they should enjoy ancient demesne status, enjoy that is the special privileges which went with living on manors which had once been possessions of the crown. When that plea failed, the men of Abbot’s Bromley asserted they were anyway freemen not villeins. While the abbey was victorious in both cases, it must have looked askance at Magna Carta’s stipulation that lords pass the Charter’s liberties down to their ‘men’. Hence the way the monks interpreted and indeed re-wrote the Charter to show that the obligation to do so was ‘saving the liberties and free customs which they had before’. Nothing, therefore, need disturb the abbey’s customary rights over its unfree tenants.

Such concerns were not, of course, unique to Burton abbey. They were shared by many other lords and help explain the care taken in 1215 to exclude the unfree from Magna Carta’s concessions. The episode also shows that the Charter in its first century was very far from being just a vague symbol of good government. The monks of Burton knew and cared about the differences in wording and arrangement between the Charters of 1217 and 1225. They had evidently studied the texts with care. They were far from being alone in that. The detail was thought to be important.  That is not the least important measure of the central place Magna Carta was attaining in English life.