1. For example, on clause 39: C.H. McIlwain, ‘Due Process of Law in Magna Carta’, 14 Columbia Law Review (1914) this essay is reprinted with an additional note in McIlwain, C.H., Constitutionalism and the Changing World: Collected Papers (Cambridge, 1939Google Scholar); Powicke, F.M., ‘Per Iudicium Parium Vel Per Legem Terrae’, in Malden, Henry Elliot, ed., Magna Carta Commemoration Essays (London, 1917Google Scholar) this essay is reprinted in Holt, James C., ed., Magna Carta and the Idea of Liberty (New York, 1972Google Scholar); P. Vinogradoff, ‘Magna Carta, C. 39: Nullus Liber Homo, etc.’, in Malden, ed., supra; Keeney, Barnaby C., Judgment by Peers (Cambridge, Mass., 1952Google Scholar), chapter 3, ‘Magna Carta, Clause Thirty-nine’; on clause 34: Hurnard, N.D., ‘Magna Carta, Clause 34’, in Hunt, R.W., Pantin, W.A. and Southern, R.W., eds., Studies in Medieval History Presented to Frederick Maurice Powicke (Oxford, 1948Google Scholar); Clanchy, M.T., ‘Magna Carta, Clause Thirty-four’, English Historical Review, lxxix (1964CrossRefGoogle Scholar), and see text infra at 373-74; on clauses 12 and 14: Langmuir, Gavin I., ‘Per Commune Consilium Regni in Magna Carta’, in Strayer, Joseph R. and Queller, Donald E., eds., Post Scripta: Essays on Medieval Law and the Emergency of the European State in Honor of Gaines Post (Rome, 1972Google Scholar). For twenty years Holt's, J.C.Magna Carta (Cambridge, 1965Google Scholar) [hereinafter referred to as Holt, Magna Carta] has deservedly been the standard work on Magna Carta, but it rarely devotes more than a few sentences in any instance to a particular clause. For its comments on clause 11 see 233-34. There are also oblique references to this clause at 271 and 273. In 1969 the book was reprinted with slight revisions (see the addition to the preface) but with the same pagination.

2. McKechnie, William Sharp, Magna Carta: A Commentary on the Great Charter of King John with an Historical Introduction (Glasgow, 1914) 231Google Scholar. The first edition of this book was published in 1905, but it is to the significantly revised second edition of 1914 (reprinted, New York, 1958) that I will refer unless I state otherwise.

3. Ibid. (1905 ed.) at 562.

4. The comments on these two clauses are shortened versions of the comments on them in McKechnie's first edition.

5. See also, for example, Thomson, Richard, An Historical Essay on the Magna Charta of King John (London, 1829) 175–78Google Scholar.

6. McKechnie, supra note 2 at 228: the Jews were ‘subjected to harsh treatment by the King's enemies’, and ‘it is not to be wondered … that the same insurgents included provisions against usury’ in Magna Carta. Richardson, H.G. and Sayles, G.O., The Governance of Mediaeval England from the Conquest to Magna Carta (Edinburgh, 1963) 337–38Google Scholar, point out that archbishop Langton was an active persecutor of the Jews, and Langton has been credited, although not by Richardson and Sayles, with much influence on the contents of Magna Carta and the Articles of the Barons. Ibid, at vi, 363, 369 and 372.

7. Holt, Magna Carta, 233, where clause 11 is considered with clause 10. For its superficiality see also Richardson and Sayles, supra note 6 at 388 n.2: ‘The clauses concerning the Jews do not appear to embody any new principle’, although the logical relationship between the first two sentences of this footnote appears to run counter to that between its final two sentences—perhaps because of ambiguous wording; and Richardson, H.G., The English Jewry under Angevin Kings (London, 1960) 142Google Scholar, speaking more particularly of clause 10: ‘[the barons] seem to have been pushing at an open door’. See text infra at 392-93.

8. Collins, Arthur Jefferies, ‘The Documents of the Great Charter’, Proceedings of the British Academy, xxxiv (1948) 235Google Scholar.

9. ‘It is difficult to make anything of the similarities and differences between the Articles and the Charter in the order in which the items occur’: Holt, Magna Carta, 314. As a general proposition this is true, but of one difference something can be made. Holt explores the proposition further in J.C. Holt, ‘Magna Carta and the Origin of Statute Law’ in Strayer and Queller, eds., supra note 1 at 494-95.

10. ‘Magna Carta … was the work of many hands and influences' and has ‘a spurious unity’. Warren, W. L., King John (London, 1961) 240Google Scholar.

11. See text infra at 392-94.

12. ‘And if a man dies owing a debt to the Jews, his wife may have her dower and pay nothing of that debt; and if he leaves children under age, their needs shall be met in a manner in keeping with the holding of the deceased; and the debt shall be paid out of the residue, saving the service due to the lords. Debts owing to others than Jews shall be dealt with likewise.’ Printed in Holt, Magna Carta, 320. The translation of King John's Magna Carta which is used in this article is that of Holt, ibid, at 317-37. The translation of the Articles of the Barons and other documents which is used is that of Rothwell, Harry, ed., English Historical Documents, iii, 1189-1327 (London, 1975), 310-16, 327-32, 351–54Google Scholar, unless otherwise stated.

13. See text infra at 372-73.

14. The relative position of the two matters is the same in the Articles of the Barons (clauses 34 and 35). These clauses of the Articles are printed in Holt, Magna Carta, 310. They are translated in Rothwell, ed., supra note 12 at 314.

15. One interpretation of clause 38 of Magna Carta is that, without explicitly mentioning Jews, it was aimed at them, because the crown allowed them to defend themselves with a single oath. McKechnie, supra note 2 at 371-72. This seems a questionable interpretation; indeed McKechnie himself prefers another. See note 133 infra.

16. Printed and translated in Holt, Magna Carta, 320 and 321. The relationship between the two clauses is not entirely clear. Since, according to clause 10, a Jewish debt is to carry no interest as long as the deceased's heir is a minor, it is presumably to his advantage—or, at least, to his guardian's advantage—that the principal should not be repaid until the end of the minority, whatever original due date agreed to by the deceased debtor. Nevertheless, clause 11 seems to assume the Jew's right to recover the principal at the due date, so that the debt might not continue for as long as the heir was a minor; and the likelihood of the enforcement of that right was greater if the king was closely supervising that Jew's affairs or if the debt had actually fallen into royal hands, as indicated in the last part of clause 10 itself. Presumably, clause 10 is not intended to deprive a Jew of interest which has already accrued before the debtor's death or which accrues after the heir comes of age. Perhaps the same applies to the (Christian) king for Jewish debts which have fallen into his hands, although ‘we will take nothing except the principal’ sounds very categorical and Thorne, Samuel E., ‘What Magna Carta Was’, in The Great Charter: Four Essays on Magna Carta and the History of Our Liberty (New York, 1965Google Scholar), takes it literally. Ibid. at 12 and see text infra at 397. It may be justifiable to assume, on all the above points, that the intention is the same as that expressed twenty-one years later in clause 5 of the Statute of Merton, which is clearer because it does not mention that such a debt can be in the king's hands: ‘… in future interest is not to run against anyone under age from the time when his ancestor, whose heir he is, died until his coming-of-age; so nevertheless that on this account payment of the principal together with the interest [for the time] before the death of his ancestor, whose heir he is, is not to be stayed’. The Statutes of the Realm (Record Commission), i (London, 1810Google Scholar), Statutes, 3. This is as translated in Rothwell, ed., supra note 12 at 353. See also note 17 infra.

17. The last three words conform to the interpretation assumed by, for example, McKechnie, supra note 2 at 224, and specified by Holt, Magna Carta, 233 n.2, that ‘the debitum illud of the last section of this clause refers not to Jewish debts in general, but to those debts which lay against minors’. As Holt points out, it is only on debts in the latter category that clause 5 of the Statute of Merton of 1236 forbids interest to be taken, and it seems likely that in that clause the Statute (although not mentioning Jews explicitly) is re-enacting clause 10. Holt, Magna Carta, 234. Richardson, supra note 7 at 143, on the other hand, evidently understands clause 10 to forbid the king to take interest in any circumstances when Jewish debts fall into his hands. Holt seems to be going too far in claiming that this clause of the Statute of Merton also confirms the principle of clause 11 of Magna Carta: it says nothing about widow, children, or lords, but merely allows the repayment of the principal and any interest which accumulated before the debtor's death. See text infra at 392.

18. For example, Holt, Magna Carta, 233-34; ibid, at 28, 35-6, 99, 125, 127, 151, and 276-77; Richardson, supra note 7 at 142-43; Thorne, supra note 16 at 9-12 (Thorne assumes clause 11 applies only to a debt which the king is collecting).

19. See text infra at 391ff.

20. McKechnie, supra note 2 at 141.

21. Richardson, supra note 7 at 12. There is a long tradition of such statements. As noted in McKechnie, supra note 2 at 230, ‘Bracton’ had said much the same thing: ‘Judaeus vero nihil proprium habere potest, quia quicquid acquirit non sibi acquirit sed regi—The Jew could have nothing of his own, for whatever he acquired, he acquired not for himself but for the king.’ Woodbine, George E., ed., and Thorne, Samuel E., trans., De Legibus et Consuetudinibus Angliae, 4 vols. to date (Cambridge, Mass., 1968) iv, 208Google Scholar. This was a phrase probably not written by Bracton himself. Ibid. at i, 417. It is not translated by Thorne, and the translation given above is McKechnie's, using the past tense. Madox, Thomas, The History and Antiquities of the Exchequer of the Kings of England (London, 1711) 150Google Scholar, said: ‘They seemed to Trade and acquire for His profit as well as their Own.’

22. The ramifications of the Jews' relationship with the king are traced in such works as McKechnie, supra note 2 at 224-31, and Richardson, supra note 7, passim.

23. McKechnie, supra note 2 at 230.

24. Holt, Magna Carta, 153.

25. See text infra at 385.

26. Holt, Magna Carta, 125. No further details are given there, but see Holt, J.C., The Northerners: A Study in the Reign of King John (Oxford, 1961) 164–70Google Scholar.

27. Holt, Magna Carta, 211.

28. It seems highly unlikely that ‘others’ is to be construed as including the king, let alone specifying him exclusively. The king would not have been so obliquely referred to; ‘us’ would have been used, just as in the previous clause, about interest on debts, ‘our hands’ had been mentioned and a verb in the first person plural had been employed: ‘we will take nothing except the principal’. As that previous clause states, debts to Jews often fell into the king's hands; but they were not then habitually identified as ‘debts to the king’ or ‘debts to us’ (let alone ‘debts to another’) by the king's administration which supplied the clerks who probably helped with the wording of Magna Carta (see text infra at 384). Instead, they continued to be referred to, typically, as ‘debita Judeorum’ (this phrase appears frequently on the Pipe Rolls, for example: see the indexes of the printed editions). In clause 11 this sort of debt was probably intended to be covered by ‘a debt to the Jews’. The phrase used in the 1216 reissue of Magna Carta, apparently referring to this clause, was ‘debitis Judeorum et aliorum’. See text infra at 396.

29. See text infra at 384-85.

30. Printed in Holt, Magna Carta, 310; translated in Rothwell, ed., supra note 12 at 314.

31. For the varieties of this attitude see Gilchrist, J., The Church and Economic Activity in the Middle Ages (London, 1969) 62-76 and 104–11Google Scholar. ‘Usury’ had several meanings.

32. Such avoidance may be the reason why non-Jewish creditors were not referred to in clause 10 of Magna Carta, which concerns the levying of interest.

33. Richardson, supra note 7 at 58.

34. Johnson, Charles, ed. and trans., The Course of the Exchequer by Richard, Son of Nigel (London, 1950) 99Google Scholar.

35. Gilchrist, supra note 31 at 72.

36. The precise intention of the clause is unclear. Some suggestions made by other historians are dismissed in Holt, ‘Magna Carta and the Origin of Statute Law’, supra note 9 at 497 n.23. In addition, the clause is discussed in: Meekings, C.A.F., ed., Crown Pleas of the Wiltshire Eyre, 1249 (Wiltshire Arch, and Natural Hist. Soc'y, Records Branch, xvi) (Devizes, 1961) 88–90Google Scholar; Meekings, C.A.F., ed., The 1235 Surrey Eyre, i, (Surrey Record Soc'y, xxxi) (Guildford, 1979) 123–25Google Scholar; Kaye, J.M., ed., Placita Corone or La Corone Pledee Devant Justices (Selden Society, Supplementary Series, iv) (London, 1966) xxviii–xxxiiGoogle Scholar.

37. Holt, ‘Magna Carta and the Origin of Statute Law’, supra note 9 at 497-98.

38. For the growth of this influence in the drafting see, for example, ibid. at 492-99; Painter, Sidney, The Reign of King John (Baltimore, 1949) 316–17Google Scholar; and text infra at 384.

39. Painter hardly seems justified in including them in the category of those clauses ‘dealing with the practices of the government’. See ibid. at 323.

40. For example, McKechnie, supra note 2 at 346-50: ‘The grievance here dealt with lay at the heart of the quarrel of 1215’; the clause, ‘one of the most reactionary in the Charter’, was ‘a reversal of a line of policy vigorously pursued for half a century’ whereby ‘the feudal lord … was thus robbed by the King of his jurisdiction’ because ‘the King hoped … to destroy gradually the feudal privileges of his magnates’. Also Stenton, Doris M., ed., The Great Roll of the Pipe for the Sixth Year of the Reign of King John, Michaelmas 1204 (Pipe Roll Society, New Series, xviii) (London, 1940Google Scholar): ‘the king was embarking on a new policy of encouraging plaintiffs to bring their actions directly to his court, regardless of the way in which baronial feeling was bound to react’ (xxx); financial gain may have been his purpose (xxix-xxx); but it was John himself who was responsible for the new policy, for ‘it needed the presence in England of a king interested in legal process to convert these isolated purchases of privileges … into the matter of course acquisition of a precipe …’ (xxiv); however, the baronial attack on this royal policy was moderate, as ‘the precipe clause in the Great Charter may perhaps be regarded as a compromise’ (xxxii).

41. Hurnard, supra note 1. It saved the holder of a feudal court ‘the trouble of putting in an appearance in order to claim the action’. Ibid. at 179.

42. Clanchy, supra note 1. Hurnard's views were accepted by Holt, Magna Carta, 225-26. Holt referred to Clanchy's article of July 1964 in a footnote, but perhaps did not have time to take it fully into account before his book was published; the preface of his book is dated August 1964.

43. Holt, Magna Carta, 225.

44. Milsom, S.F.C., The Legal Framework of English Feudalism (Cambridge, 1976) 67–71CrossRefGoogle Scholar (‘The mischief is that demandants choose to go directly to the king's court’), 78, 80 and 101-102.

45. Examples of the superficiality of the so-called attack are given in Holt, Magna Carta, 233: ‘The Charter had nothing to say about the acquisition of Jewish bonds by monasteries, or of the inordinate rates of interest which were charged. It allowed the reversion of the debts of dead Jews to the Crown. It said nothing of the manner in which the Crown had in the past distrained on land to collect the debts both of dead Jews and, on the occasion of the heavy Bristol tallage of 1210, of Jews who were alive …. It even implicitly allowed the Crown to collect interest …’.

46. It is true that clause 11 of John's promises in the Unknown Charter (printed ibid. at 303; translated in Rothwell, ed., supra note 12 at 311), which is usually taken to precede the Articles of the Barons (Holt, Magna Carta, 298), says only that the Jewish debts of royal wards are not to carry interest (including those wards granted away by the king). But this is not necessarily intended to be especially against the king: it could just be that the charter was drawn up in a rough and ready fashion by tenants-in-chief who were selfishly thinking only of their own families. See text infra at 389. Nothing is said against the king's taking of interest in these situations when Jewish debts fall into his hands, although, it is true, this ban may have been assumed. However, it must be admitted that all other clauses of the Unknown Charter attack the king in a fairly direct manner: there is nothing here about fish-weirs or weights and measures, for example, let alone about appeals by women. In this respect, the argument advanced in this article about clause 11 of Magna Carta is stronger than the one which could be advanced about clause 10 of Magna Carta: no early version of clause 11 of Magna Carta appears in the more thoroughly anti-royalist Unknown Charter.

47. See text infra at 389 for earlier and more drastic attacks on guardians.

48. It was necessary when the husband had not nominated dower, i.e. named specific lands as dower: Pollock, Frederick and Maitland, Frederic William, The History of English Law Before the Time of Edward I, 2 vols. (Cambridge, 1968) ii, 420–22Google Scholar.

49. Ibid. at ii, 422.

50. Clause 7 may have been meant to apply specifically to heirs of tenants-in-chief, for ‘hujusmodi heredis’ is used in clause 4, referring to ‘heres alicujus talium’ in clause 3, which in turn refers to tenants-in-chief, specified in clause 2; but it is widened by clause 60, which states that the liberties which the king has granted in favour of his men are to be observed by all towards their men. See text infra at 380, and 389 and note 119 infra. Clause 4 of Henry I's charter of 1100 had explicitly stated that the king's barons were to act towards the sons, daughters and widows of their men as he promised to act towards their own sons, daughters and widows. See text infra at 387.

51. It had been so applied. See text infra at 392-93.

52. See the argument that in the Articles there is an additional link with guardians, in text infra at 378ff.

53. This does not seem to assume that all the children, including the heir, are necessarily minors. For example, an adult heir might be the guardian of his minor brothers.

54. That the children should be kept in such a style is very similar to the rule expressed in clause 6 of Magna Carta, applicable to guardians (as is seen clearly in clause 3 of the Articles of the Barons), that heirs should be married without disparagement.

55. For wardships as investments, see text infra at 388-89.

56. For the full significance of this last point, see discussion of the parallel case of clause 35 of the Articles, in text infra at 378-82. There is nothing to suggest that the rule about marriage was a misplaced addition. It runs on to a new line.

57. For this matter, see text infra at 400-401.

58. This seems likely to be true despite the caveat noted above about the guardianship of non-inheriting children. See note 53 supra.

59. See, for example, Holt, Magna Carta, 214.

60. ‘Lords’ might be meant to include the king (‘dominus rex’). On the other hand, it is worth noting that in clause 8 of Magna Carta the king and other lords are carefully distinguished even though the rule applied to each is the same.

61. For this clause, see text infra at 383-84.

62. The same argument can be applied to clause 10.

63. See, for example, Milsom, supra note 44 at 65-66 and 174-75.

64. Cf. S.F.C. Milsom, ‘Introduction’, in Pollock and Maitland, supra note 48 at xxx.

65. Ibid. at xlix.

66. In fact, of course, it also mentions other creditors, which weakens the objection insofar as this is based on the conventional interpretation of the clause. See text supra at 372-73.

67. See the example given in text supra at 372. A similar example is the charter's addition of ‘and pay nothing of that debt’ to the phrase already in the Articles, ‘his wife may have her dower’. The intention all the time was surely to guarantee that the debt in no way diminished her income, whether as a charge on her dower land or as a charge on any other revenue or lands which she enjoyed. It could, however, be argued that the additional words were necessary to carry out this intention.

68. Painter, supra note 38 at 316.

69. Holt, ‘Magna Carta and the Origin of Statute Law’, supra note 9 at 494-95.

70. It contains twenty-seven words, as compared with thirty-five in the first part.

71. ‘And that the guardian of the land shall restore to the heir when he comes of full age his land stocked, according to what he can reasonably bear from the revenues of the land, with ploughs and the means of husbandry.’ Printed in Holt, Magna Carta, 310; translated in Rothwell, ed., supra note 12 at 314.

72. This contrasts with the clauses of the four surviving contemporary engrossments of the 1215 Magna Carta: in each of the four they are joined together in a continuous text whose every line fills the whole width of the parchment. Bémont, Charles, Chartes des Libertés Anglaises (1100-1305) Publiées avec une Introduction et des Notes (Paris, 1892) 26Google Scholar. The latter is the normal format of a royal charter.

73. Holt, ‘Magna Carta and the Origin of Statute Law’, supra note 9 at 494.

74. Cheney, C.R., ‘The twenty-five Barons of Magna Carta’, Bulletin of the John Rylands Library, 1 (1967-1968) 285Google Scholar. This essay is reprinted with the same pagination in Cheney, C.R., The Papacy and England, 12th-14th Centuries: Historical and Legal Studies (London, 1982Google Scholar).

75. Galbraith, V.H., ‘A Draft of Magna Carta (1215)’, Proceedings of the British Academy, liii (1967) 359Google Scholar n. 1. This essay is reprinted with the same pagination in Galbraith, V.H., Kings and Chroniclers: Essays in English Medieval History (London, 1982Google Scholar).

76. Neither Cheney nor Galbraith explicitly considers the possibility that the gap was left for additions.

77. Photographs and facsimiles of the Articles, British Museum Add. MS. 4838, may be seen in various places. For example: Holt, Magna Carta, plates IV and IVa; The Statutes of the Realm, i, Charters of liberties, between 6 and 7 (full size).

78. It corresponds to clause 60 of Magna Carta. See note 50 supra, note 119 infra and at 389.

79. ‘All these customs and liberties which the king has granted.’ It is worth noting that this clause, clause 48, is itself preceded by a space larger than usual, though not large enough for a line of writing of normal height to be inserted. This larger space may indicate that the clause was felt, as suggested above, to be different in nature from the foregoing clauses; or it may indicate that the clause was added later, without a feeling for the usual spacing; or (perhaps the preferable explanation) it may indicate that the clause was initially written with a considerable gap above it (perhaps because it was felt to be different in nature) but clauses were then inserted above it, failing to fill the gap evenly.

80. Holt, Magna Carta, 305.

81. Cheney, C.R., ‘The Eve of Magna Carta’, Bulletin of the John Rylands Library, xxxviii (1955-1956) 330Google Scholar. This essay is reprinted with the same pagination in Cheney, The Papacy and England, supra note 74.

82. Holt, Magna Carta, 157.

83. The same is true of Galbraith, ‘A Draft of Magna Carta (1215)’, supra note 75 at 347, at which he writes that ‘the Articles were the final product of weeks of hectic negotiations’. It would seem to be consistent with Galbraith's argument, that several drafts were produced by negotiations which turned the Articles into the charter, to postulate the existence of written documents before the Articles. In saying that ‘the peace-terms, already debated …, were brought to Runnymede’, Cheney, ‘The Eve of Magna Carta’, supra note 81 at 330, probably assumes that they were in written form. Yet at page 331 he appears to contradict this by saying that, apart from the Unknown Charter, the Articles were ‘the first documentary step towards Magna Carta’. Cheney is probably not bothering to distinguish between ‘the peace-terms’ and their final form in the surviving document, but considering them in all forms—rough and finished, written and oral—as ‘the Articles’. The problem of the extent to which the surviving document copied previous documents is related to the problem of the function and date of the surviving document, on which Holt and Cheney differ. See Holt, Magna Carta, 305.

84. Cheney, ‘The Eve of Magna Carta’, supra note 81 at 330; Holt, Magna Carta, 157. Both writers make clear that it was of course an amended fair copy.

85. Ibid.

86. See text infra at 382. In clause 35 the writing runs on to a new line also—but only for the last three words.

87. ‘Per residuos de xxv substituantur.’

88. Holt, Magna Carta, 156-60 and 304-305.

89. Ibid. at 156-65 and 304-306.

90. Clause 5 contains material from clause 3 of the Articles as well.

91. Mostly, though not totally, this numbering accords with the distinctions between clauses shown (inconsistently) in the four extant engrossments by exaggerated initial capitals. These can be seen in photographs and facsimiles, for example, as follows. (1) Lincoln charter: Rymer, Thomas, ed., Foedera (Record Commission edition) i (pt. 1) (London, 1816), between 130 and 131Google Scholar (full size); Holt, Magna Carta, plates II and IIa. (2) Salisbury charter: Smith, Elsie, The Sarum Magna Carta: A History of the Document and a Guide to its Translation (Salisbury, [1978]Google Scholar), provides a quarter of the charter. (3) British Museum Cotton MS. Augustus II. 106: Davis, G.R.C., Magna Carta (London, 1963Google Scholar), plate V. (4) British Museum Cotton Charter XIII. 31a: now largely illegible, this, in its legible state, can be seen in J. Pine's facsimile issued in 1733 as a single sheet for the Trustees of the Cottonian Library (full size).

92. See text supra at 378-79. Atherton, George W., A Comparative View of the Barons' Articles and the Great Charter (State College, 1900Google Scholar), presenting a translation of both documents in parallel columns, in the order of the clauses in the Articles, concludes at page 5 that ‘neither pays much regard to logical arrangement’. Galbraith, ‘A Draft of Magna Carta’ (1215), supra note 75, includes some discussion of the difference in clause order between the ‘penultimate draft’ (ibid. at 347) and the charter itself.

93. There is one exception: Henry II's and Richard I's extensions of forest boundaries which appear in the charter as part of clause 53. Holt, Magna Carta, 245, is misleading in saying that the charter was less radical than the Articles with regard to their extensions. Their extensions are not mentioned in the Articles, perhaps by an oversight, although they are mentioned in clause 9 of John's promises in the Unknown Charter, which seems likely to be an earlier compilation. See note 46 supra.

94. Holt, ‘Magna Carta and the Origin of Statute Law’, supra note 9 at 495.

95. For this clause, see text supra at 377.

96. These are also successive clauses in the Articles: clauses 15 and 16.

97. Painter, supra note 38 at 316-17.

98. Warren, supra note 10 at 236.

99. Ibid. at 240.

100. Painter, supra note 38 at 317.

101. Holt, ‘Magna Carta and the Origin of Statute Law’, supra note 9 at 496. Among the changes which were not ‘political in content’, Holt makes a useful distinction between ‘the minor changes [which] were the work of the Chancery clerks’ and the more substantial ideas of judges and other royal officials. Ibid. at 496-97.

102. Ibid. at 495.

103. See text supra at 372-73.

104. Richardson, supra note 7 at 46-7. One of the examples of fellowship and co-operation here is from Gerald of Wales, who also provides the contrary example noted below. For criticism of Richardson's standpoint, see Langmuir, Gavin I., ‘The Jews and the Archives of Angevin England: Reflections on Medieval Anti-Semitism’, Traditio, xix (1963) 221–30Google Scholar. For ‘community relations’ between Jews and Christians, see also Hyams, Paul, ‘The Jewish Minority in Mediaeval England, 1066-1290’, Journal of Jewish Studies, xxv (1974) 273–76Google Scholar.

105. Stevenson, Joseph, ed., Radulphi de Coggeshall Chronicon Anglicanum (Rolls Series) (London, 1875) 171Google Scholar.

106. Warner, George F., ed. Giraldi Cambrensis Opera (Rolls Series) viii (London, 1891) 183–86Google Scholar, cited in Warren, supra note 10 at 179. See also Warren, W.L., Henry II (London, 1973) 382–83Google Scholar; Holt, J.C., ‘The Barons and the Great Charter’, English Historical Review, lxx (1955) 10–11CrossRefGoogle Scholar; Holt, Magna Carta, 60-61; Bartlett, Robert, Gerald of Wales 1146-1223 (Oxford, 1982), 66–67Google Scholar. All these writers point to the rough similarity between what St Peter and the archangel said to the knight and what the clauses of Magna Carta lay down.

107. See text supra at 374-75.

108. See text supra at 368.

109. Holt, Magna Carta, 234.

110. See text supra at 374-78.

111. Holt, Magna Carta, 233, in admitting the superficiality of the so-called attack, gives the example of John's draconian methods when he took over a debt to a living Jew in 1208.

112. Ibid. at 205-206.

113. Clauses 9, 10 and 12 of John's promises concern the forest, and are in some ways more radical than Magna Carta. Young, Charles R., The Royal Forests of Medieval England (Leicester, 1979) 61 and 64–65CrossRefGoogle Scholar. In contrast, only clause 11 of John's promises, protecting minor heirs of tenants-in-chief from usury, mentions the Jews.

114. Holt, Magna Carta, 247 and 348-49.

115. Holt, The Northerners, supra note 26 at 98 and 100. Holt, Magna Carta, 136. But see ibid. at 220.

116. Clause 14.

117. Holt, Magna Carta, 204-205. Despite Holt's comments, ibid. at 216-17, it seems likely that this provision was meant to cover a decision on the granting of scutage for an expedition overseas, which was tantamount to a decision on the giving of service for such an expedition, a point left up in the air by clause 16. Clause 7 of John's promises in the Unknown Charter had simply banned the king from demanding such service, except for Normandy and Brittany. See Painter, supra note 38 at 313.

118. Holt, Magna Carta, 204-205, seems inconsistent in using both of these terms for the same matter.

119. Ibid. at 206. Another possible explanation, put forward in general terms, ibid. at 233, is that they were inhibited in putting limitations on the Jews and the collection of the Jews', and the king's, debts because this might shackle them in their collection of debts from their own men. The general principle enshrined in clause 60 comes to mind. See note 50 supra and text supra at 380 and infra at 389. However, the Jews, like the forest, were really a special case connected with the king, without counterparts lower down in feudal society. A further possible explanation, expressed succinctly by Bartlett, is that the barons were limited by what the king would accept. Bartlett, supra note 106 at 67. One cannot press this explanation far, and it does nothing to show why John would accept radical action in other spheres and not in the Jewry.

120. As John, put it, ‘the Jews enjoy our special protection’. Hardy, Thomas Duffus, ed., Rotuli Litterarum Patentium, i (pt. 1) (London, 1835) 33Google Scholar. This phrase is translated in Holt, J.C., King John (London, 1963) 8Google Scholar n.3.

121. Jenks, Edward, ‘The Myth of Magna Carta’, Independent Review, iv (1904-1905Google Scholar) (this essay is reprinted but wrongly dated in Holt, Magna Carta and the Idea of Liberty, supra note l);McKechnie, supra note 2 at 110, 254 and 386-87; Petit-Dutaillis, Charles, Studies and Notes Supplementary to Stubbs' Constitutional History down to the Great Charter (Manchester, 1908) 129 and 143Google Scholar; Adams, George Burton, The Origin of the English Constitution (New Haven, 1912) 249–50Google Scholar; Poole, Austin Lane, From Domesday Book to Magna Carta (Oxford, 1955) 470, 473 and 476Google Scholar.

122. The following two references are noted but not quoted in Holt, Magna Carta, 103, 202.

123. ‘Whether the same H. made waste of the inheritance of the same Adam otherwise than a guardian ought to do’ (my translation). Stenton, D.M., ed., The Great Roll of the Pipe for the Fourth Year of the Reign of King John, Michaelmas 1202 (Pipe Roll Society, New Series, xv) (London, 1937) 66.Google Scholar

124. ‘To show why he … caused waste and destruction thereof against the custom of the realm’ (my translation). Curia Regis Rolls, vii (London, 1935) 75–76Google Scholar.

125. Holt, Magna Carta, 216. Examples of the sale of wardships as investments are given Ibid. at 214-16.

126. See notes 50 and 119 supra and text supra at 380 and infra, this page.

127. Holt, Magna Carta, 216. In clause 4, sheriffs and similar officers who looked after wardships for the king were to make amends (to the king), but not guardians.

128. McKechnie, supra note 2 at 244, however, finds it ‘too timid and half-hearted’.

129. Printed in Holt, Magna Carta, 301, as part of the Unknown Charter. A different version is translated in Douglas, David C. and Greenaway, George W., eds., English Historical Documents, ii, 1042-1189 (London, 1953) 401Google Scholar. (2nd ed. 1981, at 433.)

130. Holt, Magna Carta, 299 and 300.

131. Printed ibid. at 303; translated in Rothwell, ed., supra note 12 at 310. When discussing the relationship between the two documents in which these two clauses occur, Holt, Magna Carta, 151 and 214, might have pointed out that the clauses are contradictory although the Unknown Charter, in the form in which it has come down to us, contains both of them, since it reproduces a version of Henry I's coronation charter before continuing with John's promises. Ibid. at 296.

132. See notes 50 and 119 supra and text supra at 380 and this page.

133. The change is discussed in Holt, Magna Carta, 212-13. The following comment may be added, concerning the royalist earl Ranulf's charter to his men of Cheshire, which was a local equivalent of Magna Carta and probably necessary because Magna Carta did not run within this franchise. Ibid. at 270-71. Whatever the earl's attitude to this point in Magna Carta, clause 11 of his local charter continued with the stronger idea in favour of the heir's relatives. Indeed, the words used (‘grace and assent’) possibly have a stronger meaning than even the Articles’ ‘consilium’ (‘advice’): Neque domina neque heres maritetur ubi disparagetur, set per gratum et assensum generis sui maritetur—‘Neither the lady nor the heir should be married where she or he would be disparaged, but she or he should be married by the grace and assent of her or his family’ (my translation). This is immediately followed by clause 12, stating that the legacies of the earl's men are to be respected, which might be interpreted to include their wishes about such marriages: ‘Et eorum legata teneantur’. The charter is printed, summarised and discussed in Tait, James, ed., The Chartulary or Register of the Abbey of St Werburgh, Chester, i (Chetham Society, New Series, lxxix) (Manchester, 1920) 101–109Google Scholar. It may have been issued not at the time of Magna Carta but nearer (though not quite as late as) the time of the first reissue of Magna Carta (November 12, 1216), which completely ignored the wishes of the relatives. See text infra at 400. Although there are many other factors to be taken into consideration, it would seem, on the face of things, that the royalist earl Ranulf did not, at least on this particular point, share in the ‘reactionary’ current which is argued for in the text supra at 389-90, and infra at 400-401. He evidently was not completely at the mercy of the men of Cheshire but had some control over the contents of his charter, for it states that he refused some of their demands.

As regards the general argument of this article about clause 11 of Magna Carta, the Cheshire charter, it should be pointed out, says nothing about Jews: there was no ‘question of the Jews’ in Cheshire, it seems. However, it says only a little about guardians: only clauses 10, 11 and 12 of the Cheshire charter concern them; compared with the relevant clauses of Magna Carta, these are relatively brief clauses, and they are directed at the lord rather than the guardian. The substance of clauses 10 and 11 of Magna Carta does not appear in the Cheshire charter; nor does that of the rest of clause 35 of the Articles. Thus the Cheshire charter cannot be used to shed light on the interpretation of these clauses in the way that its clause 5 can be used to confirm Holt's interpretation of clause 38 of Magna Carta against that of McKechnie, supra note 2 at 370-75, and others. Holt, Magna Carta, 226; see note 15 supra. There are so many differences, both in general and in detail, between the contents of the two charters that argument by analogy must be tentative. But it seems likely that clause 38 of Magna Carta does mean that no one should be tried on a bailiff's unsupported allegation, for clause 5 of the Cheshire charter says Et si vicecomes meus aut aliquis seruiens in curia mea aliquem hominum suorum inculpauerit, per thwertnic se defendere poterit propter sireuestoth quod reddunt, nisi secta eum sequatur—‘And if my sheriff or any serjeant in my court shall accuse any one of my barons’ men, he shall be able to defend himself by absolute denial on account of the sireuestoth which my barons pay, unless suit follows him’ (my translation; they are apparently being given the privilege because this shire tax is paid.) See also Holt, Magna Carta, 59.

134. As regards the Unknown Charter, one could argue that the difference between it and the Articles may reflect not change through time but difference in aspirations between various groups of contemporaries. However, that the Unknown Charter preceded the Articles by some weeks seems likely, and perhaps the group dominant at the time of the Unknown Charter was no longer the dominant one at the time of the Articles. See Holt's discussion, ibid. at 297-300.

135. Ibid. at 234 when read in conjunction with 269, 271-73 and 276. See also McKechnie, supra note 2 at 140-41, 228 and 231.

136. See text infra at 396-97.

137. See text supra at 372-73.

138. Speaking generally of the changes in the 1216 reissue, McKechnie may have had this clause in mind when he wrote ‘The chief tyrant against whom the original provisions had been directed was dead, and certain forms of tyranny, it was confidently hoped, had died with him’. McKechnie, supra note 2 at 140.

139. Holt, Magna Carta, 125, giving some examples.

140. Ibid. at 127.

141. Perhaps the nearest we can get to knowing whether he did so is the complicated story, outlined in Richardson, supra note 7 at 144, from Curia Regis Rolls, ix (London, 1952) 23-24, 153-54 and 371Google Scholar; x (London, 1949) 154, where it appears that John's action in accepting a fine to redeem land gaged to a Jew contributed to the difficulties of a widow in recovering her dower in the next reign. But this hardly amounts to a contravention of the points mentioned in clause 11. The fine, for which no date is given, was made before Richard Marsh, perhaps as chancellor. He became chancellor in October 1214 but he had long been the king's trusted agent. Painter, supra note 38 at 65.

142. Holt, Magna Carta, 107-108.

143. Ibid. at 276-77.

144. The investigations into Jewish debts cited without date ibid. were conducted in the Michaelmas term of 1219.

145. See notes 16 and 17 supra.

146. For the likelihood that clause 11 referred particularly to minorities, see text supra at 375-76 and 377.

147. Richardson and Sayles, supra note 6 at 388 n.2 and note 7 supra.

148. Curia Regis Rolls, i (London, 1922) 417Google Scholar (1201); vii (London, 1935) 70-71 (1214) and 339 (1198). These three cases are also cited, but with a typographical error, in Richardson, supra note 7 at 142 n.4. In the two cases of John's reign the property was taken into the king's hands when the Jews failed to appear. In the case of 1198 the recorded proceedings get no further than the defendant's objection that the land in question was not the plaintiff's dower. In none of these cases is there any hint that the king had been pressing the collection of the debt to the Jew.

149. Johnson, ed., supra note 34 at 115. Thorne, ‘What Magna Carta Was’, supra note 16 at 12, on the other hand, speaking of the position in 1215 regarding dower and the upkeep of minor offspring when the king collected Jewish debts, states that ‘these concessions had apparently not been customary before’.

150. Richardson and Sayles, supra note 6 at 383.

151. However, see the cautionary words in Holt, Magna Carta, 201, and the assessment of various clauses which follows them.

152. See text supra at 377-78.

153. Cf. McKechnie, supra note 2 at 143: ‘Many of the original provisions were declaratory, and their omission in 1216 by no means implied that they were then abolished’.

154. See text infra at 397 and 398.

155. See note 46 supra.

156. On such public readings, see the discussion in Richardson, H.G., ‘The Morrow of the Great Charter’, Bulletin of the John Rylands Library, xxviii (1944) 426–28Google Scholar; Cheney, ‘The Eve of Magna Carta’, supra note 81 at 337-41; Holt, J.C., ‘A Vernacular-French Text of Magna Carta, 1215’, English Historical Review, lxxxix (1974) 346–47CrossRefGoogle Scholar.

157. This is the counterpart of the idea, which rests on the assumption that the clauses of Magna Carta were attacking the king, that the drafters’ purpose was to write down existing law in order to forestall abuses because it was difficult to get them corrected retrospectively. As Richardson and Sayles put it, ‘… the Charter was … intended … to express … the law, which, being written down, would save the king's subjects from arbitrary interpretations or arbitrary exactions by the king's ministers’. Richardson and Sayles, supra note 6 at 383.

158. Holt, Magna Carta, 201.

159. Whether other courts, in 1215, 1216, or at any other date, were correcting these abuses, or even recognising them as abuses, is difficult to know. See text supra at 388-89.

160. Turner, Ralph V., The King and His Courts: The Role of John and Henry III in the Administration of Justice, 1199-1240 (Ithaca, 1968) 268–76Google Scholar.

161. For example, clause 25, forbidding increments on the shire farms, and clause 55, dealing with his ‘unjust’ fines and amercements.

162. Galbraith, V.H., Roger Wendover and Matthew Paris (Glasgow, 1944) 34–37Google Scholar; Galbraith, V.H., ‘Good Kings and Bad Kings in English History’, History, xxx (1945) 125, 127–30Google Scholar; Warren, supra note 10 at 10, 15-16; Holt, King John, supra note 120 at 3. Galbraith's two publications are reprinted with the same pagination in his King and Chroniclers, supra note 75.

163. See text infra at 398-99.

164. For its attitude to guardians, see note 196 infra and text infra at 400-401.

165. Ea esse in respectu quousque plenius consilium habuerimus—‘these being deferred until we have fuller counsel’.

166. ‘Certain articles contained in the former charter which seemed important yet doubtful.’ Printed in Holt, Magna Carta, 357 n.1; translated in Rothwell, ed., supra note 12 at 331.

167. ‘Namely On the assessing of scutage and aids, On debts of Jews and others, On freedom to leave and return to our kingdom, On forests and foresters, warrens and warreners, On the customs of counties, and On river banks and their wardens.’

168. The relationships are conveniently listed in Rothwell, ed., supra note 12 at 331 nn. 7-12. See note 169 infra.

169. He here interprets ‘de debitis Judeorum et aliorum’ as referring not only to clauses 10 and 11 but also to clause 27, which is otherwise unacknowledged and which certainly mentions debts (not specifically of Jews), but its main point concerns intestacy (not involving guardians). Rothwell here also interprets ‘de consuetudinibus comitatuum’ as referring to clauses 25 and 45, which are otherwise unacknowledged, but it seems far more likely that it refers to the ‘male consuetudines … vicecomitibus et eorum ministris’ of clause 48, for their list follows the order suggested by this clause: forests, warrens, shires, and river banks. Clauses 25 and 45 have nothing to do with Jews or guardians. In all this, it may be better to continue to follow the earlier work of Holt: ‘other provisions quietly vanished without any comment at all’. Magna Carta, 271. However, one of the examples given there is erroneous. See note 190 infra.

170. Most of the clauses after clause 48. The omissions are conveniently noted in Rothwell, ed., supra note 12 at 327-31.

171. The attitudes of officials and clerks may have had considerable consequences now just as they may have had in 1215. See text supra at 384-85. As Holt puts it, ‘the administrative and legal element which had presumably been responsible for the original improvement of the Charter's drafting at Runnymede was still at work …’. Magna Carta, 272.

172. This would be consistent with Holt's emphasis on the ‘thought and care’ with which the 1216 reissue was compiled. Ibid.

173. This would probably not be expressed by the use of ‘others’. See note 28 supra.

174. In its mention of debts, clause 27 of the 1215 charter, also, is not limited to Jewish creditors, but for doubts that this phrase refers to clause 27 see note 169 supra.

175. See note 72 supra.

176. See note 16 supra.

177. The clearest example is clause 9 of the 1215 charter (see text supra at 383-84), which was amended in various ways when it became clause 9 of the reissue. Thus, whereas in 1215 the sureties of a debt had, in certain circumstances, been made responsible for its repayment if the debtor was unable to pay, in 1216 they were made responsible if he was able but unwilling to do so.

178. Clauses 3, 5, 7, 28 and 30 of the 1215 charter probably fall into this category.

179. See note 170 supra.

180. That there were some of the latter sort is generally agreed. For example, Powicke, F.M., King Henry III and the Lord Edward: The Community of the Realm in the Thirteenth Century (Oxford, 1947) 6–7Google Scholar, though perhaps thinking also of those clauses after clause 48, says: ‘Several clauses were omitted, with no intention of reconsideration’. This appears also to be the implication of Holt, thinking primarily of the clauses before clause 49: ‘Other provisions quietly vanished …. In the main the loyalist magnates seem to have been concerned to restrict the Charter's intrusion into the administrative powers of the Crown’. Magna Carta, 271. This intention, in fact, seems to involve a more permanent matter than does one of the reasons given by Powicke for the omission of the clauses: ‘because they were inconsistent with the exercise of royal authority in time of war’. Powicke, King Henry III and the Lord Edward, 7.

181. See notes 16 and 17 supra.

182. The provisions of clause 27 on intestacy were later carried out in practice even though it was apparently not republished: Pollock and Maitland, supra note 48 at ii, 360.

183. Printed in The Statutes of the Realm, i, Charters of liberties, 20-1; translated in Rothwell, ed., supra note 12 at 337-40.

184. See notes 16 and 17 supra.

185. If the association was accidental, it was evidently not noticed as a sufficient mistake to ensure the reinstatement of the clause in the reissues of 1217 and 1225.

186. See note 172 supra. ‘It was more than a hasty political stratagem’: Holt, Magna Carta, 272.

187. See text supra at 385-86.

188. It would seem a matter more of principle than of great practical substance. See text supra at 391.

189. Clause 53 is only partly on the forest. Even clause 48 is not limited to the forest.

190. Holt, Magna Carta, 271, errs on this point; cf. ibid. at 356 n.1.

191. Young, supra note 113 at 67, errs in saying ‘Of the chapters of 1215 concerned with the forest, only chapter 44 was retained’.

192. In a sense this was radical, for it concerned the extent of the forest. However, it disafforested only John's additions to the forest (and river banks), which were minimal. Holt, Magna Carta, 236.

193. However, see the cautionary words ibid. at 272.

194. Cheney, Christopher R., Pope Innocent III and England (Stuttgart, 1976) 378–86Google Scholar. Pandulf's position is not entirely clear. He may have been defending the charter against extremists. He had probably left England by the time the papal annulment reached the country.

195. See text supra at 378ff.

196. The phrases containing the word ‘waynagium’, which has puzzled historians, were omitted in clause 5 of the 1216 reissue, and a change was made which can be interpreted as rendering the clause more favourable to guardians than clause 5 of the 1215 charter had been. See text infra at 400. Also, the general principles of clause 5 were extended to ecclesiastical wardships.

197. The quoted phrases are those of Holt, Magna Carta, 271.

198. Except, apparently, in respect of clauses 44 and 47 of the 1215 charter. See text supra at 398-99.

199. See text supra at 386. In the case of the forest, however, one can see that more than a matter of principle might be involved. The forest administration was closely bound up with castles, which were of such vital importance at this juncture. Compare Young, supra note 113 at 51, with Powicke, supra note 180 at 1-3.

200. For earlier conflict between these two points of view, see text supra at 388-90.

201. See text supra at 389-90.

202. Terram suam totam instauratam de carucis et waynagiis, secundum quod tempus waynagii exiget et exitus terre racionabiliter poterunt sustinere—‘all his land stocked with ploughs and wainage such as the agricultural season demands and the revenues of the estate can reasonably bear.’ became terram suam totam instauratam de carucis et omnibus aliis rebus, ad minus secundum quod illam recepit—‘his land fully stocked with ploughs and all other things in at the least the measure he received.’ Holt and Rothwell construe ‘totam’ differently in their respective translations of clause 5 in 1215 and 1216; cf. Rothwell, ed., supra note 12 at 317 n.1.

203. See note 72 supra.

204. See text supra at 385.

205. See text supra at 391-92.

206. See text supra at 372-73.

207. See text supra at 372-75.

208. See text supra at 375-77.

209. See text supra at 377-78.

210. See text supra at 391-93.

211. See text supra at 368 and 386.

212. See text supra at 384-85 and 396-97.

213. See text supra at 378-84.