R. Malcolm Hogg, Jews, Guardians, and Magna Carta, Clause 11

American Society for Legal History
Jews, Guardians, and Magna Carta, Clause 11

Author(s): R. Malcolm Hogg
Source: Law and History Review, Vol. 4, No. 2 (Autumn, 1986), pp. 367-402
Published by: American Society for Legal History
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Jews, Guardians, and Magna Carta,
Clause 11
R. Malcolm Hogg
Clause 11 of King John's Magna Carta has not received as searching an

examination as have other clauses of that document.' For example,
McKechnie's comment runs to only half a page.2 In the 295 pages which he
devotes to the individual clauses of Magna Carta, only his comments on
clauses 62 and 63, clauses which he describes as 'entirely of a formal
nature',3 and on clauses 53 and 574 are shorter. True, some of the points
which have relevance for clause 11 are made in his comment on clause 10.
But nearly all such points concern the Jews, whereas it is the intention of the
R. Malcolm Hogg is lecturer in History at St David's University College, Lampeter, in the University
of Wales.
1. For example, on clause 39: C.H. Mcllwain, 'Due Process of Law in Magna Carta', 14
Columbia Law Review (1914) this essay is reprinted with an additional note in C.H.
McIlwain, Constitutionalism and the Changing World: Collected Papers (Cambridge,
1939); F.M. Powicke, 'Per Iudicium Parium Vel Per Legem Terrae', in Henry Elliot
Malden, ed., Magna Carta Commemoration Essays (London, 1917) this essay is
reprinted in James C. Holt, ed., Magna Carta and the Idea of Liberty (New York,
1972); P. Vinogradoff, 'Magna Carta, C. 39: Nullus Liber Homo, etc.', in Malden, ed.,
supra; Barnaby C. Keeney, Judgment by Peers (Cambridge, Mass., 1952), chapter 3,
'Magna Carta, Clause Thirty-nine'; on clause 34: N.D. Hurard, 'Magna Carta, Clause
34', in R.W. Hunt, W.A. Pantin and R.W. Southern, eds., Studies in Medieval History
Presented to Frederick Maurice Powicke (Oxford, 1948); M.T. Clanchy, 'Magna
Carta, Clause Thirty-four', English Historical Review, lxxix (1964), and see text infra
at 373-74; on clauses 12 and 14: Gavin I. Langmuir, 'Per Commune Consilium Regni
in Magna Carta', in Joseph R. Strayer and Donald E. Queller, eds., Post Scripta:
Essays on Medieval Law and the Emergency of the European State in Honor of Gaines
Post (Rome, 1972). For twenty years J.C. Holt's Magna Carta (Cambridge, 1965)
[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. William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King
John with an Historical Introduction (Glasgow, 1914) 231. 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.
368 Law and History Review
present article to argue that the Jewish aspect of clause 11 has been too much
discussed,5 or too much assumed, at the expense of other aspects,
particularly its connection with guardians. After all, the common assump-
tion that clause 11 represents part of a baronial attack on the Jews6 has been
coupled, rather paradoxically, with the admission that it was too superficial
to have much effect on the Jews.7 It is worthwhile inquiring whether the
paradox really exists. Is the superficial effect on the Jews an indication that
the purpose of the clause, at least in its origin, lay in a different direction?
This article will suggest the possibility that unscrupulous guardians were the
primary target of clause 11.
Clause 11 must first be examined, together with the situation of the
English Jewry to which it is conventionally related. Some reasons for
thinking that the English Jewry might not be under attack in this clause will
then be introduced. The reasons why, instead, unscrupulous guardians
might be the target of the clause must be adduced; this includes recognition
that the clause may not concern only, or even primarily, the king's
politically important tenants-in-chief. Next, the derivation of clause 11 must
be explored: in particular, the context in which the substance of clause 11 is
to be found in the Articles of the Barons ('Magna Carta itself in embryo'),8
and the rearrangement which occurred as the Articles were transformed into
the charter, will be an important part of the argument.9 It may be justified
to deduce from the rearrangement that a change in contemporaries'
5. See also, for example, Richard Thomson, An Historical Essay on the Magna Charta of
King John (London, 1829) 175-78.
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. H.G. Richardson and G.O. Sayles, The
Governance of Mediaeval England from the Conquest to Magna Carta (Edinburgh,
1963) 337-38, 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
H.G. Richardson, The English Jewry under Angevin Kings (London, 1960) 142,
speaking more particularly of clause 10: '[the barons] seem to have been pushing at an
open door'. See text infra at 392-93.
8. Arthur Jefferies Collins, 'The Documents of the Great Charter', Proceedings of the
British Academy, xxxiv (1948) 235.
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.
Jews, Guardians and Magna Carta, Clause 11 369
perception of the target of the clause was taking place-a slight change away
from unscrupulous guardians and in the direction of the Jews. The slightness
of the change may be shown by the omission of the clause from the reissue
of Magna Carta which took place in 1216 after John's death. Finally, it will
be argued, on the contrary, that although there are other possible explana-
tions for this omission, concerning Jews or guardians, it probably occurred
because this change in contemporaries' perception of the target of the clause
had indeed progressed further by 1216.
The conclusions reached here must remain tentative, for much of the
argument will be hypothetical. Some of it, too, will rest on analogy with
other clauses in these documents, which assumes a consistency that may
not be present even within a single document, for it is unlikely that any of
these documents was the product of a single mind, or even of a single-
minded group.10 Historians with a closer knowledge of the financial and
judicial documents of these years may be able to produce evidence for or
against the present argument-for example, on whether the provisions of
clause 11 were or were not applied by the financial administration and courts
of John and his successor." But it is hoped that this article will lead to
greater understanding of clause 11, and perhaps of other aspects of Magna
Carta.
Clause 11 states: 'Et si quis moriatur, et debitum debeat Judeis, uxor ejus
habeat dotem suam, et nichil reddat de debito illo, et si liberi ipsius defuncti
qui fuerint infra etatem remanserint, provideantur eis necessaria secundum
tenementum quod fuerit defuncti et de residuo solvatur debitum, salvo
servicio dominorum; simili modo fiat de debitis que debentur aliis quam
Judeis'. 2 As the Jews are specified in the eighth word of this clause, it
would certainly seem that the clause is directed at Jews, although one must
consider the significance of the 'others' mentioned in the final phrase.'3 This
usual assumption is corroborated by the positioning of the clause, immedi-
10. 'Magna Carta . .. was the work of many hands and influences' and has 'a spurious
unity'. W. L. Warren, King John (London, 1961) 240.
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
Harry Rothwell, ed., English Historical Documents, iii, 1189-1327 (London, 1975),
310-16, 327-32, 351-54, unless otherwise stated.
ately following the only other clause in Magna Carta'4 that explicitly
mentions the Jews.15 Clause 10 forbids the charging of interest on Jewish
loans when the deceased debtor's heir is a minor.16
Clause 10 mentions not only the Jews but also the king, who agrees to
forego interest in these circumstancesl7 whenever a Jewish loan falls into his
hands. It is this connection between the Jews and the king which has
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 Samuel E. Thorne,
'What Magna Carta Was', in The Great Charter: Four Essays on Magna Carta and the
History of Our Liberty (New York, 1965), 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, 1810), 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.
attracted comment from those who have examined the two clauses.18 When
McKechnie refers to clauses omitted from the 1216 reissue of Magna Carta19
he speaks of clauses 10 and 11 as 'the chapters ... which defined the King's
relations with the Jews'.20 For several generations the money-lending
activities of the Jews in England had been closely controlled by the kings,
who claimed great theoretical power over them and exercised it ruthlessly.
'Jews stood in a special relation to the king: they and their chattels were
his.'21 In effect, their chattels included the debts (with interest) owed to
them, which the king therefore sometimes collected from the debtors,
notably when a Jew died or when the Jewry was being heavily tallaged by
the king so that the debts had to be called in to pay the tax.22 From 1194 the
relationship between the crown and the Jewry had been institutionalised in
the form of a special government 'department', the exchequer of the Jews,
which received large amounts of money from Jews and their debtors and
disbursed it according to the king's instructions. Focusing on this machinery
and the principles on which it operated led McKechnie to conclude:
'Whatever the Jew had amassed belonged legally and potentially not to him
but to the Crown. Magna Carta, in striking at money-lenders, was striking
at the King.'23
The major concern of Magna Carta, and indeed its raison d'etre, was to
attack King John, who in June 1215 was at his opponents' mercy as a result
of the fall of London to the rebels.24 It is therefore natural that clauses 10 and
11 have been seen as part of this attack on the king: the Jews were, in
themselves, disliked,25 and part of the attack on the Jews apparent in these
clauses may have resulted from that simple fact, but most of the attack on
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.' George E. Woodbine, ed., and Samuel E. Thorne, trans., De
Legibus et Consuetudinibus Angliae, 4 vols. to date (Cambridge, Mass., 1968) iv, 208.
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. Thomas Madox, The History and Antiquities of the Exchequer of the Kings of
England (London, 1711) 150, 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
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.
them was really an indirect attack on the king, for, it is claimed, they 'had
become a major source of income to the king and one of the main
instruments of [John's] financial persecution of the aristocracy'.26 Holt's
phrase, 'the question of the Jews',27 sums up this particular sector of the
comprehensive attack on Angevin government embodied in Magna Carta.
Yet certain qualifications need to be stated in evaluating this conventional
interpretation.
II
In the first place, it was not only Jews, with their special relationship to
the king, who were specified in clause 11: the same provisions were to apply
to 'debts owing to others than Jews'.28 That this was not merely an extension
introduced by lawyers or administrators in the process of improving the text
of the draft charter29 is shown by the fact that a similar phrase had already
been used in the appropriate position in the Articles of the Barons: 'simili
modo fiat de aliis debitis'.30 The re-drafting of this phrase for the charter
made it more emphatic that non-Jewish debts were meant, but did not
change the meaning. By the time of the Articles, the regulations were
intended to affect non-Jewish creditors. Quite apart from the monetary
indebtedness of one Christian to another for services already rendered, or the
possibility of the casual lending of money by one Christian to another, and
despite the church's attitude,31 'Christian moneylenders . . . were not
26. Holt, Magna Carta, 125. No further details are given there, but see J.C. Holt, The
Northerners: A Study in the Reign of King John (Oxford, 1961) 164-70.

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.
30. Printed in Holt, Magna Carta, 310; translated in Rothwell, ed., supra note 12 at 314.
31. For the varieties of this attitude see J. Gilchrist, The Church and Economic Activity in
the Middle Ages (London, 1969) 62-76 and 104-11. 'Usury' had several meanings.
lacking in England. If they avoided overt usury,32 they nevertheless

advanced money at a profit'.33 But, in spite of Fitznigel's mention that the
chattels of Christian usurers who died unrepentant fell to the king,34 it seems
unlikely that Christian lenders were, like the Jews, 'a means of indirect
taxation for rulers hampered by feudal restrictions'.35 The inclusion of
Christian creditors in the Articles of the Barons and Magna Carta indicates
that more was intended than an indirect attack on the king through the Jews.
A second reason for questioning the assumption that clause 11 of Magna
Carta was designed as an attack on Angevin government is that not all the
other clauses appear to constitute any such attack. For example, clause 54,
restricting women's rights in appeals,36 can hardly be seen in this light; as
Holt37 says, 'it had no apparent political relevance', being 'inspired by
administrative and legal attitudes' instead. It could be objected that clause
54 was a late addition, produced by the new influence of such administrative
and legal attitudes in the final stages of the drafting of the charter:38 unlike
clause 11, it is absent from the Articles. But other clauses which do not
appear to be an attack on Angevin government were already included in the
Articles, showing that at the time of the Articles the proposed document was
not envisaged solely as such an attack. Thus, clause 33 of Magna Carta,
legislating for the removal of all fish-weirs in England, and clause 35,
defining weights and measures, do not seem aimed at the government.39
Even clause 34 ('The writ called praecipe shall not, in future, be issued to
anyone in respect of any holding whereby a free man may lose his court'),
which used to be thought of as attacking the Angevin kings in their policy
towards feudal courts,40 has been explained as a mere administrative
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. Charles Johnson, ed. and trans., The Course of the Exchequer by Richard, Son ofNigel
(London, 1950) 99.
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: C.A.F. Meekings, ed.,
Crown Pleas of the Wiltshire Eyre, 1249 (Wiltshire Arch. and Natural Hist. Soc'y,
Records Branch, xvi) (Devizes, 1961) 88-90; C.A.F. Meekings, ed., The 1235 Surrey
Eyre, i, (Surrey Record Soc'y, xxxi) (Guildford, 1979) 123-25; J.M. Kaye, ed.,
Placita Corone or La Corone Pledee Devant Justices (Selden Society, Supplementary
Series, iv) (London, 1966) xxviii-xxxii.
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; Sidney
Painter, The Reign of King John (Baltimore, 1949) 316-17; 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
improvement largely devoid of constitutional principle or political signifi-

cance in its intentions.41 Although this view has been revised in substantial
respects,42 modem historians agree that clause 34 was not designed as an
attack on John as the representative of Angevin policy, because 'neither
King John nor his father had deliberately intruded into the property rights of
their tenants by denying their established rights of jurisdiction'.43 Milsom
believes that clause 34 was not directed against any such royal policy, but
against litigants who wished to short-circuit the feudal jurisdictional
system.44
Similarly it can be argued that clause 11 was not intended as an attack on
royal financial policy and its Jewish instruments. If this is true, one can
avoid the apparent paradox that the so-called attack, in clauses 10 and 11,
was very superficial, for example, in that it would not have prevented the
Jews from recouping the losses they would sustain in interest (clause 10) or
in principal (clause 11) by increasing their interest rates.45 It may be better
to abandon the idea that the framers of what became Magna Carta had 'the
question of the Jews' on their minds when these two clauses were first
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
Doris M. Stenton, 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, 1940):
'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. Humard, 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. Humard'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.

44. S.F.C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976) 67-71
('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 . ..'.
thought of; their attitude should perhaps be seen more as defensive and
pragmatic. In interpreting these clauses as an attack on the Jews and their
royal protector historians may have read too much into the intentions of the
authors. It may be advisable to take the two clauses more at their face
value. In clause 10 perhaps the authors simply wished to protect all feudal
heirs from the accumulation of interest which unpaid debts to Jews could
build up during a minority, and made sure that this protection was
recognised to apply also when such debts came into the king's hands.46 In
clause 11, also, it could be argued, the motive of protection was uppermost:
they wished to protect widows, minor heirs (again), and feudal lords. If
clause 11 was an attack on anyone, perhaps it was an attack not on the king
but, rather like clause 34's attack on mischievous litigants, on another
group in society: unscrupulous guardians.47
III
Unscrupulous guardians may have been trying to protect their own

interest in the deceased's estate by directing creditors away from that portion
of the estate which was in their own hands and encouraging them instead to
recover their principal from that portion of the estate which had been
nominated or assigned to the widow as dower. Assignment, when neces-
sary,48 was the duty of the heir, or of the guardian when the heir was a
minor,49 so it may have been easy for unscrupulous guardians to manipulate
the repayment arrangements with creditors, especially if they took longer in
making the assignment than the forty days allowed by clause 7 of Magna
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: Frederick Pollock and Frederic William Maitland, The History of English
Law Before the Time of Edward I, 2 vols. (Cambridge, 1968) ii, 420-22.
49. Ibid. at ii, 422.
Carta.50 It must be admitted that this first provision in clause

11 does not mention a minor heir, and would apply51 whether or not
there was a minor heir and hence a guardian; but it should not be forgotten
that, both in the Articles of the Barons and in Magna Carta, this pro-
vision immediately follows the discussion of a minor heir's freedom from
interest payments.52
The second provision in clause 11, introduced by the words 'et si liberi
ipsius defuncti qui fuerint infra etatem remanserint' ,53 unarguably applies to
minors and guardians. Unscrupulous guardians may have failed to maintain
the deceased's children in a style compatible with their station54 when they
found that creditors were taking some of the revenues which the guardians
expected to recoup from the wardship, in which they might have invested
considerable capital.55 That the children should be kept in such a style is
very similar to the rule expressed in clause 6 of Magna Carta, that heirs
should be married without disparagement. That this rule about marriage was
aimed at guardians seems likely from the fact that in both Magna Carta and
the Articles of the Barons it immediately follows rules which explicitly
apply to guardians, in the case of the Articles without even beginning a new
clause.56 In effect, too, apart from this matter of marriage without
disparagement, Magna Carta makes three very closely related, almost
overlapping, statements about minor heirs: that their lands should not be
wasted by guardians (clause 4), that their lands and houses should be kept
stocked and in good order by guardians (clause 5),57 and that they (and their
siblings) should be kept in due style. Especially if they lived on their estates,
their guardians' mistreatment of these estates would adversely affect their
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.
lifestyle as perceived in contemporary eyes, and this provision in clause 11

of Magna Carta would seem to bear on guardians just as much as clauses 4
and 5 do.
The third provision in clause 11 may have been included in order to avert
a mischief similar to that suggested above in connection with the second
provision. Just as unscrupulous guardians, in attempting to ensure the
profitability of wardships, may have responded to the demands of creditors
by reducing, below acceptable levels, the revenues employed to maintain
the children, so too they may have been skimping on, or altogether
avoiding, the payment of service to the feudal lords. The principle of this
third provision would apply, like the first provision, even where there was
no minor heir and hence no guardian of the land: service to his lords should
not be ignored, for example, by an adult heir when he allowed creditors to
collect his father's debts from his land. However, such guardians-
particularly ones who took on wardships as financial speculations-may
have been known to be especially prone to ignore the feudal relationship.
The formulation of this part of clause 11 leaves little doubt that the
service due to the lords was envisaged in the context of guardianship
(probably of the whole of the deceased's lands),58 for the phrase under
consideration is tacked on to the end of the provision about minor children.
On the other hand, the provision embodied in this added phrase would in
many cases be superfluous, for often the guardian would himself be the
deceased's lord59--or, at least, one of his lords.
The mention in this third provision of lords apparently other than the
king60 should perhaps be considered in conjunction with the opening phrase
of the clause, 'And if anyone dies', as contrasted with, for example, 'If any
of our earls or barons or others holding of us in chief by knight service dies'
(clause 2), or 'If anyone holding a lay fief of us dies' (clause 26).61 The
foregoing does not give the impression that the framers of clause 11 of
Magna Carta62 were thinking particularly of the topmost level of feudal
society and of any political bitterness aroused at that level by financial
difficulties resulting from the king's manipulation of Jewish lending such as
should lead to the use of a phrase like 'the question of the Jews'. The
impression given by this clause when it is examined closely is that all
members of feudal society are being considered, and perhaps primarily the
most numerous ones at the lower levels of that society.
If Clause 11 of Magna Carta was concerned, as argued above, with
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.
guardians, it probably reflects the slow development of general legal rules

regulating feudal society. In the framework of English feudalism as seen by
Milsom,63 a legal world in many respects coming to an end about the time
of Magna Carta, guardians would often be the feudal lords whose families
had been accustomed for many generations to act decisively in sub-
infeudated land, which they might still think of as their own (especially
when the tenant died) and not merely formally held of them. The will of the
lord and the local customs of the lordship would determine precisely how he
acted.64 For example, in relation to the first of the three provisions in clause
11, 'even well on in the thirteenth century, the law relating to dower may not
be wholly intelligible unless an unexpectedly large part is allowed to
seignorial action'.65
IV
As against the above arguments, which are to some extent conjectural, it

might be objected that, if clause 11 was directed against unscrupulous (or
old-fashioned) guardians rather than against the Jews, it would have
explicitly mentioned guardians and not just Jews.66 This point is a telling
one, but it is somewhat weakened when the text of Magna Carta is compared
with that of the Articles of the Barons. Clause 11 of the charter is based on
clause 35 of the Articles, using many of the same words in much the same
order; the changes are mostly additions which are evidently designed to
make the clause more explicit rather than to change its meaning.67 Clause 35
of the Articles, however, runs on with further material after clause 11 of the
charter stops. The drafters of the Articles have been criticised for lumping
together these two unrelated topics, which, it is claimed, were tidily
rearranged when the charter was drawn up. Thus Painter,68 after noting
various tidying rearrangements in the charter, states: 'Even more striking is
the case of the last part of chapter 35 of the Articles that has little to do with
the rest of the chapter but clearly belongs in chapter 3. It is put in its correct
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 insofa
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.
place in the great charter'; and Holt:69 'The Charter makes a much better job
of it .... The final clause of cap. 35 of the Articles was correctly associated
with the part on custody in cap. 3, in caps. 4, 5 and 6 of the Charter'. This
last part of clause 35-which, indeed, is not much less than half of the
clause70-directs guardians, at the heir's coming-of-age, to restore the land
to him fully stocked: 'et ut custos terre reddat heredi, cum ad plenam etatem
pervenerit, terram suam instauratam secundum quod rationabiliter poterit
sustinere de exitibus terre ejusdem de carucis et wainnagiis'.71 The attitude
of Painter and Holt to it is understandable. Yet, without denying that some
tidying rearrangements of the Articles took place in the drawing up of the
charter, one can maintain that no other single clause of the Articles lumps
together apparently unrelated provisions. Perhaps, therefore, in the eyes of
those who drafted the Articles, the provisions in clause 35 were not
unrelated, but all concerned the same problem, namely the unsatisfactory
practices of guardians.
One can argue that, had the drafters of the Articles considered the two
matters in clause 35 to be distinct, it would have been appropriate to create
separate clauses. Each clause of the Articles commences separately at the
left-hand margin with a paragraph mark,72 and it would have been easy to
deal with the second matter separately. This is true even if it was added
after the main list had been written out, for there was no need to attach it to
the end of an inappropriate clause. There was room on the parchment for
additional clauses, notably in the gap left before the security clause, the last
one in the document. As Holt73 argues, 'some items seem to have occurred
as afterthoughts; . . . and space was left between the list of petitions and
the forma securitatis in which further addenda could have been inserted'.
This, it must be admitted, contrasts with the equally plausible judgment
of Cheney,74 supported by Galbraith,75 that this gap was not left for
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. Charles B6mont, Chartes des
Libertes Anglaises (1100-1305) Publiees avec une Introduction et des Notes (Paris,
1892) 26. 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. C.R. Cheney, 'The twenty-five Barons of Magna Carta', Bulletin of the John Rylands
Library, 1 (1967-68) 285. This essay is reprinted with the same pagination in C.R.
Cheney, The Papacy and England, 12th-14th Centuries: Historical and Legal Studies
(London, 1982).
75. V.H. Galbraith, 'A Draft of Magna Carta (1215)', Proceedings of the British Academy,
additions76 but was left to show the break between the contents of the
proposed charter and the contents of what at that stage were envisaged to
become separate documents.77
Even if Cheney's interpretation is accepted, the hypothetical addition in
clause 35 could have been written at the top of this gap without obscuring
the break, for the second half of the clause takes up less than a line and
would, therefore, still have left at least three lines' space. On the other hand,
it could be argued that the nature of the clause above the gap might have
inhibited the addition of specific provisions below it, for it is the general
one:78 'Omnes autem istas consuetudines et libertates quas rex concessit' are
to be observed by others as well as by the king.79 Also, there is the
possibility that clause 35 was merely being copied from a previous
document which has not survived. Holt80 is inclined to reject the hypothesis
that 'there were earlier drafts of a settlement which have not survived and on
which the Articles themselves were based', while Cheney8l does not commit
himself on whether the document which has survived listed the 'points
agreed in discussion'82 from the words in which they were being expressed
orally, or listed them on the basis of a previous document or documents,83
liii (1967) 359 n. 1. This essay is reprinted with the same pagination in V.H. Galbraith,
Kings and Chroniclers: Essays in English Medieval History (London, 1982).
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.

81. C.R. Cheney, 'The Eve of Magna Carta', Bulletin of the John Rylands Library, xxxviii
(1955-56) 330. This essay is reprinted with the same pagination in Cheney, The Papacy
and England, supra note 74.
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
but both writers use the term 'fair copy'84 and Holt85 says that it was written
by a 'writer [who] knew that the king was agreeing to the petitions he was
about to draft'. The possibility exists that the surviving document was a
rewritten version, and so in the case of clause 35 it could be argued that the
text was unthinkingly copied from a piece of parchment which did not have
room for the addition of a separate clause and which had therefore been
added to in an inappropriate manner. Leaving aside that possibility, one
would think that, if the authors of the parchment which has survived for us
to inspect felt that there no longer remained suitable room to add a separate
clause, and did not consider that the matter which they wished to add was
closely associated with the first matter in clause 35, it is surprising that they
did not add it to clause 3 rather than to clause 35. It is to clause 3 that it
belongs, according to Painter and Holt, for clause 3 says that guardian
should not waste the heir's land and that the heir should be married without
disparagement; and there was almost exactly as much room on the last line
of clause 3 to which it might have been added as there was on the
corresponding line of clause 35 where most of it is written.86
Assume for the moment that they did, perhaps somewhat carelessly, add
the matter to a clause which was relatively inappropriate. One would expect
to be able to detect it as a subsequent addition. But on examination of the
document it seems unlikely that the second half of the clause was added after
the surrounding text had been written. Firstly, no impression is given at the
beginning of the second half that it was added as an afterthought. So far as
can be seen through the glass of the showcase in which the document is kept
in the British Museum, the writing continues evenly with the same pen and
ink. This contrasts with clause 37, a clause of two lines followed by a gap
which is larger than that between any other two clauses except that before
the security clause, and into which a line of writing could if necessary have
been squeezed. It is possible that when it was first written clause 37 was
unfinished or was expected to receive an addition. It may have been
completed subsequently, for the last few words as it now stands87 seem to
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 onl
the last three words.
87. 'Per residuos de xxv substituantur.'
have been written with a slightly thicker nib than those preceding them; but
they managed to fit (just) on to the end of the line instead of continuing on
to a new line. In contrast, the only thing which might be thought to indicate
a join in clause 35 is that the clerk omitted 'ut' after 'et', the word which
begins the second half, and supplied it (apparently with the same pen and
ink) above the line, with a caret-mark below. But at various other places in
the document, too, the clerk omitted a word and supplied it above the line,
usually with a caret-mark below. This was probably merely such a slip; one
caused by the sequence of two short words of similar sound and spelling,
rather than by the clerk's having to make a later addition. Secondly, the
latter half of clause 35 was probably written before the next clause was
written, for it runs on to a new line, and this line would otherwise
presumably already have been used for the next clause. It is probable that
only if an addition had been expected-and hence, presumably, considered
to concern the subject matter of the first half-would a line have been left
empty in the way suggested above for the gap under clause 37.
On balance, then, it seems unlikely that the conjunction of matters noted
by Painter and Holt as inappropriate reflects a careless or fortuitous addition.
If, instead, there was a careful or deliberate addition, or no addition but an
integral unity to begin with (at least at the time of the discussions88 which
immediately produced the Articles, to go no further back), it squares with
the fact that no other single clause of the Articles contained mutually
unrelated matters. What we might call 'the question of guardians', seen
most clearly to moder eyes in the second half of the clause, may have been,
to contemporaries, the essential element of the clause as a whole.
Yet the fact remains that in Magna Carta, which was drawn up probably
only a few days later,89 this clause was split, and its components emerge in
two non-contiguous clauses, clauses 590 and 11 of Magna Carta. There is
only one other exception to the rule that a clause in the Articles gives rise to
no more than one clause in Magna Carta (or two or three successive clauses,
in the moder numbering of the clauses),91 and we should compare it with
the case of clause 35 of the Articles for any insights it may give into the
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: Thomas Rymer, ed., Foedera (Record Commission edition) i (pt. 1)
(London, 1816), between 130 and 131 (full size); Holt, Magna Carta, plates II and IIa.
(2) Salisbury charter: Elsie Smith, The Sarum Magna Carta: A History of the Document
and a Guide to its Translation (Salisbury, [1978]), provides a quarter of the charter. (3)
British Museum Cotton MS. Augustus II. 106: G.R.C. Davis, Magna Carta (London,
1963), 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).
considerations underlying the splitting of clause 35. The other exception is

clause 39 of the Articles, which combines the matter of summons to forest
courts (clause 44 of Magna Carta) with the matter of evil forest customs
(clause 48 of Magna Carta). These two matters are very close in nature, just
as, it is argued above, the two matters of clause 35 of the Articles are close;
they are also close in nature to the matter of forest boundaries (clause 47 of
the Articles; clause 47 of Magna Carta), just as the two matters of clause 35
of the Articles are close to the matter of clause 3 of the Articles. The drafters
of Magna Carta, presumably in a spirit of tidying rearrangement,92 put all93
the forest matters nearly together, but in fact untidily put the matters of
appointment of officers (clause 45 of Magna Carta) and baronial abbeys
(clause 46 of Magna Carta) among them. The rearrangement of clause 35 of
the Articles may be a similarly botched job: it may, in this case, obscure
further a relationship, concerning unscrupulous guardians, which to moder
eyes is already none too clear in the Articles. As Holt94 admits, 'Not all the
changes in order seem logical;. . .Here and there the Articles present a better
order'; but the only example given is clause 38 of the Articles, which,
because it happens not to involve judgment by the archbishop and his
advisers, 'came to be separated from its proper context' when the charter
was drawn up. The second half of clause 35 of the Articles should perhaps
be recognised as another example: it was taken away from the first half,
which made it less obvious that the first half concerned unscrupulous
guardians.
Moreover, that is not the only way in which the drafters of Magna Carta
tidily-or untidily-rearranged clause 35 of the Articles: they involved it in
a grouping of clauses about debt. They did this by putting a revised version
of the first half of the clause (clause 11 of Magna Carta), together with a
revised version of clause 34 (clause 10 of Magna Carta), immediately after
a revised version of the provision for royal debt-collecting (clause 9 of
Magna Carta), which had come a full thirty clauses earlier in the Articles
(clause 5). Yet clause 26 of Magna Carta95 (clause 15 of the Articles), which
also concerns royal debt-collecting in the circumstances of the debtor's
92. See text supra at 378-79. George W. Atherton, A Comparative View of the Barons'
Articles and the Great Charter (State College, 1900), 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.
death (like clauses 10 and 11 of Magna Carta, but unlike clause 9, which
applies to a living debtor), is left isolated from those others. To be fair to the
drafters of Magna Carta, it must be admitted that such was the variety of
links often possible between one clause and others that no single thread
could be followed to produce a sequence satisfactory from all points of
view. Although clause 26, from the point of view just taken, seems isolated,
it also discusses the deceased's will and chattels, and hence has something
to connect it with clause 27, which provides what is to be done about
chattels when there is no will.96 What is particularly significant for the
present argument is the logic which the drafters followed, if imperfectly, in
dealing with the first half of clause 35 of the Articles. Not only did they
thread the second half which explicitly mentioned guardians on to other
matters in which guardians were explicitly mentioned, but they threaded the
first half, and clause 34, on to the matter of royal debt-collecting. They
thereby emphasised the connection between the Jews and the king at the
expense of the connection between guardians and debt-collecting.
The rearrangement of clause 35 of the Articles may not have been merely
an application of misguided bureaucratic tidiness to a written document.
Painter97 thinks that Magna Carta 'was the Articles of the Barons carefully
worked over by highly intelligent men with a thorough knowledge of the
English government' who 'added precision and exact definition' when they
'drafted the great charter' and who were distinct from the barons: they could
be 'puzzled' by clause 13 of the Articles, and 'perhaps they asked the barons
what they meant'; 'it looks as if the barons told the drafters . . .'. Warren,
too, mentions that the wording was worked out 'with the cooperation of the
Chancery clerks'98 and speaks of 'the formal phraseology of the Chancery
clerks who drafted it'.99 And Holt endorses Painter's verdict that many of
the changes 'may well have been made by the drafters on their own
authority',100 extending that verdict to cover changes of content and
arrangement, and labelling these changes 'administrative in conception and
objective', 'the product of experienced and skilful secretarial effort'. 101 But
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 t
changes which were not 'political in content', Holt makes a useful distinction betwee
'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.
it was not just an office writing job. One must remember the likelihood that
intensive oral discussions between the leading men of the country were
going on while the Articles were being changed into the charter. The
changes-some of them, at least-may reflect these discussions: 'the
processes of political argument produced a new pattern'.'02
Perhaps the splitting of clause 35 of the Articles and the grouping of its
first half in a section on royal debt-collecting occurred because, in the
discussions between the time when the Articles were drawn up and the time
when the charter was drawn up, the question of guardians in the first half of
that clause receded somewhat and the question of the Jews became
somewhat more prominent. Contemporaries were aware that debts owed to
Jews tended to get involved in royal debt-collecting, and so it is probable
that when they considered the repayment of debts to the king which was
being regulated in clause 9 of Magna Carta they thought also of the
repayment of debts to Jews (clause 11 of Magna Carta), together with the
interest (clause 10 of Magna Carta)-ignoring the 'others' who were
mentioned and who might not be so closely involved in royal debt-
collecting. 103 For some contemporaries the mere mention of Jews in a matter
which originally, it is argued, had a rather different focus might engage the
main part of their attention. Despite the cautioning words of Richardson,104
one cannot ignore the well-attested popular feeling against the Jews, shown,
for example, in the attack on Jewish houses after the king's opponents
entered London in May 1215,105 and in Gerald of Wales's story that St Peter
and the archangel Gabriel appeared to a certain knight in the late twelfth
century and bade him tell Henry II to expel the Jews and return their bonds
and pledges to their debtors.106
If the change of pattern reflects a change of emphasis between the time of
the Articles and the time of the charter, the change of emphasis must not be
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-operati
here is from Gerald of Wales, who also provides the contrary example noted below. Fo
criticism of Richardson's standpoint, see Gavin I. Langmuir, 'The Jews and the
Archives of Angevin England: Reflections on Medieval Anti-Semitism', Traditio, xi
(1963) 221-30. For 'community relations' between Jews and Christians, see also Pau
Hyams, 'The Jewish Minority in Mediaeval England, 1066-1290', Journal of Jewis
Studies, xxv (1974) 273-76.
105. Joseph Stevenson, ed., Radulphi de Coggeshall Chronicon Anglicanum (Rolls Serie
(London, 1875) 171.
106. George F. Warner, ed. Giraldi Cambrensis Opera (Rolls Series) viii (London, 189
183-86, cited in Warren, supra note 10 at 179. See also W.L. Warren, Henry II
(London, 1973) 382-83; J.C. Holt, 'The Barons and the Great Charter', Englis
Historical Review, lxx (1955) 10-11; Holt, Magna Carta, 60-61; Robert Bartlett,
Gerald of Wales 1146-1223 (Oxford, 1982), 66-67. All these writers point to the rough
similarity between what St Peter and the archangel said to the knight and what th
clauses of Magna Carta lay down.
exaggerated. Neither the Articles nor Magna Carta substantially or compre-

hensively attacked the Jews and the king's use of them.107 Perhaps what
Holt sees as the superficiality of the attack108 can be explained, in his words:
'To the Christian layman of this time, the Jews were an unfortunate financial
necessity. Nothing could be done about them or their debts, or the Crown's
established prerogative to collect the debts of dead Jews'.109 But if the
framers of Magna Carta were consciously mounting any sort of an attack on
the Jews, rather than protecting widows, minor heirs and their lords,l10 it is
surprising that it was not a more substantial and comprehensive attack, one
which, for example, might have stopped the king from collecting the debts
of living Jews. '1 The drafters of Magna Carta were willing to mount major
attacks on other things which equally well might be seen as unfortunate
necessities and inevitable facts of life. In particular, what one could call 'the
question of the forest' springs to mind.
Of the forest, perhaps it could be said that the framers of Magna Carta saw
it both as an unfortunate necessity that had to be lived with and as a matter
in which they intended radical changes. Holt112 argues that merely for them
to make any regulation about the royal forest was a radical change, so
personal had the connection hitherto been between the king and his forest.
But, beyond this, they intended-and had intended since at least the time of
the Unknown Charter' 3-that substantial and comprehensive regulations
should be made concerning the forest, including not only a limitation of the
boundaries, but also a definition of evil customs so wide-ranging that in
Magna Carta they could get no further than setting up the county-by-county
investigation on which it could be based. On the other hand, all this assumed
the continuance of the royal forest, even though there was evidently a strong
body of opinion in the country in favour of its abolition in the summer of
1215. In the north men proceeded to hunt in it as if it did not exist and it
became necessary for the bishops to issue 'letters stating that when this
section of the Charter had been discussed at Runnymede it had been
understood by all parties that those forest regulations which were essential
to the keeping of the forest were to remain unaffected' by the local

108. See text supra at 368.
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 mo
radical than Magna Carta. Charles R. Young, The Royal Forests of Medieval Englan
(Leicester, 1979) 61 and 64-65. In contrast, only clause 11 of John's promises,
protecting minor heirs of tenants-in-chief from usury, mentions the Jews.
investigations.114 Given this evidence, one can say that Magna Carta
reflected substantial unrest in the country about what was consciously
recognised as 'the question of the forest'. Although the charter stopped well
short of total abolition, it was certainly radical.
It was radical, too, in the very clause which followed the so-called attack
on the Jews. Clause 12, presumably in order to strike at the root in what one
might call 'the question of scutage' which had evidently been a major cause
of the Magna Carta crisis,15 made scutage henceforth subject to the consent
of the king's tenants-in-chief1 6-a deliberate innovation.117 Whether this
innovation came under a 'cloak' or was 'blatant',1l8 it shows in the framers
of Magna Carta a willingness to bring scutage completely under control,
although not to abolish it.
From these examples it would seem that when those responsible for
Magna Carta were clearly moved by a contemporary political question they
responded decisively and comprehensively. They hardly seem to have been
conscious of a 'question of the Jews' in the same way. It is true that one
could explain the superficiality of the so-called attack on the Jews by using
the argument that Holt119 applies to the charter in general (although it is
hardly applicable to the two examples discussed above): the barons took a
'limited', 'blinkered' approach to it, based 'on custom and precedent', so
that 'where they were required to think originally [i.e. radically] they were
inhibited from doing so'. However, it seems at least as plausible to argue
that they were not setting out to attack the Jews as they were setting out to
attack the forest and scutage, but were merely protecting widows, minor
heirs and feudal lords. In Magna Carta they did not consciously embark on
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 l
that this provision was meant to cover a decision on the granting of scutage fo
expedition overseas, which was tantamount to a decision on the giving of service f
such an expedition, a point left up in the air by clause 16. Clause 7 of John's prom
in the Unknown Charter had simply banned the king from demanding such serv
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 fo
same matter.
119. Ibid. at 206. Another possible explanation, put forward in general terms, ibid. at
is that they were inhibited in putting limitations on the Jews and the collection of
Jews', and the king's, debts because this might shackle them in their collection of de
from their own men. The general principle enshrined in clause 60 comes to mind. S
note 50 supra and text supra at 380 and infra at 389. However, the Jews, like the fore
were really a special case connected with the king, without counterparts lower down
feudal society. A further possible explanation, expressed succinctly by Bartlett, is th
the barons were limited by what the king would accept. Bartlett, supra note 106 at
One cannot press this explanation far, and it does nothing to show why John wo
accept radical action in other spheres and not in the Jewry.
the new principle of regulating the Jews, who were as personally connected
with the king as was the forest.120 They got no nearer the conception of a
'question of the Jews' than putting passages which mentioned the Jews into
a group with the general theme of royal debt-collecting. While not going
along with the view of historians such as Jenks, McKechnie, Petit-Dutaillis,
Adams and Poole'21 that Magna Carta was largely framed by feudal
reactionaries, one can argue that clauses 10 and 11 show that those
responsible were concerned more with the immediate grievances of their
own and other feudal classes-protecting themselves from financial misfor-
tunes which they had suffered in the past-than with seeking to reorganise
the financial machinery of the country and the crown by a thorough-going
attack on the Jewish money-lending system which could give rise to the
difficulties indicated in these two clauses.
It is true, however, that as regards the whole matter of wardship the
framers of Magna Carta may have been pulled two ways. On the one hand,
they might have bad memories of their own times as minor heirs, or wish to
ensure that their own heirs and families were not badly treated. We know,
for example, that the wasting of heirs' land by guardians occurred-or, at
least, was alleged to have occurred-for such cases came to the king's
courts.'22 An inquest of 1202 was to say 'si ipse H. fecerit wastum de
hereditate ipsius Ade aliter quam custos facere deberet';123 another guardian
was summoned in 1214 'ad ostendendum quare ipse. . .vastum inde fecit et
destructionem contra regni consuetudinem'.124 On the other hand, they
might look on wardships as investments which they could make and from
which profits should be achieved; hence 'wasting was likely to be a matter
of degree'.125 Who was to judge whether wasting had occurred? Magna
120. As John put it, 'the Jews enjoy our special protection'. Thomas Duffus Hardy, ed.,
Rotuli Litterarum Patentium, i (pt. 1) (London, 1835) 33. This phrase is translated in
J.C. Holt, King John (London, 1963) 8 n.3.
121. Edward Jenks, 'The Myth of Magna Carta', Independent Review, iv (1904-05) (this
essay is reprinted but wrongly dated in Holt, Magna Carta and the Idea of Liberty,
supra note 1);McKechnie, supra note 2 at 110, 254 and 386-87; Charles Petit-Dutaillis,
Studies and Notes Supplementary to Stubbs' Constitutional History down to the Great
Charter (Manchester, 1908) 129 and 143; George Burton Adams, The Origin of the
English Constitution (New Haven, 1912) 249-50; Austin Lane Poole, From Domesday
Book to Magna Carta (Oxford, 1955) 470, 473 and 476.
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). D.M. Stenton, 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.
124. 'To show why he . . . caused waste and destruction thereof against the custom of the
realm' (my translation). Curia Regis Rolls, vii (London, 1935) 75-76.
125. Holt, Magna Carta, 216. Examples of the sale of wardships as investments are given
ibid. at 214-16.
Carta does not say. In the case of minor heirs to land held of the crown,
which clause 4 is explicitly discussing, it probably assumes that the king's
courts would deal with the matter, but what of lower ranks in the feudal
hierarchy, who are drawn in by the operation of clause 60?126 Was the court
of a lord suitable if he was also the guardian? As Holt notes, the charter's
handling of wasting by guardians was imperfect in other ways, too; for
example, 'no provision was made for the compensation of the ward where
wasting had occurred'.127 Thus loopholes for guardians were left. And,
although on balance it must be agreed that the line which Magna Carta took
against guardians was quite strong,128 it represents a noticeable softening of
earlier attacks on guardians. Clause 4 of Henry I's coronation charter
virtually abolished guardians in that it mentioned only the widow or other
relation as having the custody of minor heirs and their land; this was to apply
to heirs holding of the king's tenants-in-chief as well as to heirs holding of
the king.129 Clause 3 of John's promises in the Unknown Charter mentions
only the heirs of tenants-in-chief (perhaps because 'these notes or memo-
randa' are 'so informal a document');'30 his actions as guardian are limited
in that the land must be looked after by four knights of the fee'31-not by
someone who obtained it from the king as an investment. In contrast, the
Articles of the Barons and Magna Carta are much less drastic. Clause 3 of
the Articles speaks of a guardian, a man free to collect a 'reasonable' income
from the land; it may be referring specifically to the heirs of tenants-in-chief,
but it is widened by clause 48 (clause 60 of Magna Carta), which states that
the liberties which the king has granted in favour of his men are to be
observed by all towards their men. 132 Magna Carta deals with guardians on
the same basis, and on one point which would affect some of them makes
a further slight concession: clause 3 of the Articles says that for the heir's
marriage the advice of his nearest relatives is necessary, but clause 6 of
Magna Carta says merely that they are to be informed before the marriage
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 David C. Douglas and George W. Greenaway, eds., English
Historical Documents, ii, 1042-1189 (London, 1953) 401. (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.
is contracted.133 When Magna Carta was drawn up there seem to have been
pressures at work softening what for many members of the feudal classes
could have been a self-destructive attack on guardians. As guardians
themselves they did not wish to paint a picture of guardians as wholly evil.
It may have been for this reason that in clause 11 of Magna Carta, whether
consciously or not, they cast the Jew rather than the guardian into the role
of bogeyman by the rearrangement of the text.
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 James Tait, ed., The Chartulary or Register of the Abbey of St Werburgh,
Chester, i (Chetham Society, New Series, lxxix) (Manchester, 1920) 101-109. 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.
VI
It has been argued above that, although by the time of the Articles a much
less drastic attack was being made on guardians than had been made
earlier,134 clause 35 of the Articles was essentially a criticism of guardians
in their attitude towards widows, minor heirs and feudal lords. Hence, it has
been argued, clause 11 of Magna Carta, the only separate clause of Magna
Carta to which clause 35 of the Articles gave rise, was still largely
considered in that light, for the interval between the two documents was
probably one of only a few days, and there is little sign of a 'question of the
Jews' at that stage, despite the rearrangement which occurred. A major
objection to this argument is that clause 11 was among those dropped from
the reissue of Magna Carta by the government of Henry III's minority in
1216 (and from all later reissues). Its dropping, it is said'35-and with
contemporary warrant136-occurred because it was indeed an item in 'the
question of the Jews' and, as such, impinged in principle on the new
government's financial administration. Are there alternative, or additional,
reasons for its dropping, which would weaken the objection to the above
interpretation of clause 11? Was it dropped because it was superfluous-
because it stated regulations about guardians (at all levels of feudal society)
which in 1216 were already generally accepted (concerning debts owed to
'others'137 as well as those owed to Jews)?
It is difficult to find a clear answer to this question, because one could
argue that, if it was dropped because it was superfluous, it may have been
because it was superfluous, instead, as regards the royal manipulation of the
Jews. Now that John was gone, his manipulation of the Jews was a thing of
the past. 138 Indeed, it is possible that even in 1215 clause 11 was out of date,
seeking to put into a formal agreement a grievance already remedied, for in
1212 John had relaxed the stringency with which he collected debts owed to
dead Jews139 and in February 1213 he had set up a conciliatory investigation
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.

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.
into various points concerning Jewish property (but perhaps only in

Yorkshire and Lincolnshire).140 However, we do not know that John had
been contravening the particular points mentioned in clause 11 before
1212.141 On the other hand, it is just as possible that by 1213-14 he was
doing so: he may have abandoned his relaxation over Jewish debts very
soon, for in other financial spheres, notably the setting and collection of
fines,142 we see him pressing very hard at this time, when the Bouvines
campaign was in preparation.
The government of Henry III's minority also pressed hard, taking an
aggressive attitude to the collection of Jewish debts.143 However, it seems
that we do not know whether it did so before the time of its second reissue
of Magna Carta (in 1217), let alone its first. 44 Nor does it seem to be known
whether, more specifically, it infringed the principles of clause 11 at any
date. Probably it did not. It is noticeable that when, after Henry's minority
had ended, it was evidently deemed necessary in the Statute of Merton of
1236145 to reiterate the principle of clause 10 (that a minor heir should be
free from interest on his father's debt) no such reiteration seems to have been
required in the case of clause 11, although both clauses had been dropped in
1216 and were absent from the 1225 reissue of Magna Carta which was
currently in effect. Whatever the Jews or the government had been up to as
regards interest during minorities, it seems likely that the recovery of
principal during minorities146-by Jews, the government, or other creditors
-had not recently been causing the problems indicated by clause 11.
Perhaps in 1216, too, it was regarded as superfluous. After all,
Richardson and Sayles147 can say, speaking of 1215: 'The clauses concern-
ing the Jews do not appear to embody any new principle. The courts had for
long protected the widow's dower against Jewish creditors.' Although the
140. Ibid. at 127.
141. Perhaps the nearest we can get to knowing whether he did so is the complicated
outlined in Richardson, supra note 7 at 144, from Curia Regis Rolls, ix (London,
23-24, 153-54 and 371; x (London, 1949) 154, where it appears that John's actio
accepting a fine to redeem land gaged to a Jew contributed to the difficulties of a w
in recovering her dower in the next reign. But this hardly amounts to a contrave
of the points mentioned in clause 11. The fine, for which no date is given, was m
before Richard Marsh, perhaps as chancellor. He became chancellor in October
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
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.
cases there cited are not definitive, since the final judgments are not
recorded,'48 the underlying principle that dower was protected against
creditors appears confirmed in Fitznigel's Dialogue of the Exchequer149 of
Henry II's reign, where this is noted in the case of money owed to no less
a creditor than the king himself. According to Richardson and Sayles,150 'it
is generally agreed that the Charter was not intended to create new law but
to express what the barons conceived to be the law',151 and in the matter of
dower and the other two matters identified in clause 11 it could well be that,
despite the existence of some conservatively-minded lords,152 there had long
been a growing general consensus in favour of the protection thus afforded.
The dropping of this clause in 1216 was surely not meant to remove such
protection;153 it might seem more likely that, if not dropped by accident,154
it was dropped because it was felt to be superfluous. The three rules in
clause 11 were almost certainly generally recognised in theory because they
were so patently just: widows and minors, especially, if not feudal lords,
obviously deserved protection (whether against creditors or against guard-
ians).
Yet, at the time of the Articles and Magna Carta, if not at the time of the
Unknown Charter,155 those responsible for clause 11 saw a need to write the
three rules down and have them formally accepted. One might argue that the
point of publicising these rules in a charter which was to be read out in the
shire courts and elsewhere156 was to attempt to prevent guardians from being
148. Curia Regis Rolls, i (London, 1922) 417 (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.

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 H.G. Richardson, 'The Morrow of the
Great Charter', Bulletin of the John Rylands Library, xxviii (1944) 426-28; Cheney,
'The Eve of Magna Carta', supra note 81 at 337-41; J.C. Holt, 'A Vernacular-French
Text of Magna Carta, 1215', English Historical Review, lxxxix (1974) 346-47.
unscrupulous, or creditors from being aggressive, rather than to continue

with the current situation, which may have been the much more inconve-
nient one, that abuses did occur and were then corrected in the courts.157
However, that would apply equally to the 1216 reissue, unless the publicity
achieved by the 1215 charter was deemed sufficient. Hence one is driven to
agree that it was John's demise which might have made clause 11
superfluous in 1216. One need not make the dubious assumption158 that the
appearance of a rule in Magna Carta means that John had been doing the
opposite. But it is possible that, when the abuses identified by clause 11
occurred, they were not being retrospectively corrected by John's courts.159
It has been shown that to secure his own interests John intervened in his
courts to a considerable extent, directing his judges on particular cases, for
example, and refusing to allow certain cases to be heard.160 He may well
have done so on matters raised in clause 11. His financial needs, which
certainly provoked other clauses of Magna Carta,161 may have led him to
refuse such retrospective protection when he had an interest in the debt, such
as when it was a Jewish one.
We have to take into account not only John's financial needs, the context
in which clause 11 is conventionally considered, but also his political ones.
John may have ignored the misdeeds of guardians whose political support he
wished to recruit or maintain. Whether the wardships which such men held
were royal ones or not, he might have been unreceptive to plaintiffs who
tried to use his courts against them to redress the grievances indicated by
clause 11. By a combination of a public definition of what the law was and
the statement in clause 40 of Magna Carta that John was to give justice
freely without delay, his opponents may have hoped to transform theory into
practice.
To recapitulate, it seems necessary to reject the hypothesis which, if
valid, would support the general argument of this article, namely the
hypothesis that clause 11 was dropped from the 1216 reissue because it was
deemed superfluous, in that it was a generally accepted set of principles to
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.
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. Ralph V. Turner, The King and His Courts: The Role of John and Henry III in the
Administration of Justice, 1199-1240 (Ithaca, 1968) 268-76.
161. For example, clause 25, forbidding increments on the shire farms, and clause 55,
dealing with his 'unjust' fines and amercements.
be respected by guardians in connection with all debts, Jewish or non-

Jewish. Certainly there are earlier examples of the acceptance of one of
these principles (not, however, specifically in the context of minorities).
Also, acceptance of these principles seems likely to be the reason for their
non-appearance in 1236 when, in contrast, the principle of clause 10 was
reiterated. More tentatively, acceptance of these principles may be consid-
ered to have been sufficiently bolstered by the publicity achieved by the
1215 charter. But it remains difficult to believe that they became so much
more generally accepted in 1216 than in 1215 that clause 11 was deemed
superfluous in 1216 when it had not been deemed superfluous in 1215.
Instead, if clause 11 was dropped in 1216 because it was deemed
superfluous, it seems likely that it was deemed superfluous because John
was no longer on the throne, for its principles were so patently just that a
normal king would automatically respect them. Although this interpretation
smacks of the nineteenth century chronicle-based view of John as mon-
strously evil,162 it seems likely to be true even if John perhaps did respect
these principles after 1212, for his opponents might think in 1215 that he
could not be trusted to continue respecting them.
Attributing the change to John's passing would not be valid if the
government of Henry III's minority failed to respect these principles: in that
case, clause 11 would be inconvenient for this government163 rather than
superfluous. Although the government of Henry III's minority in general, by
Michaelmas 1219, anyway, took a strong line about Jewish debts,l64 we do
not know that it failed to respect these principles. It is also true that we do
not know that John did so, either. Nevertheless, John's demise in 1216
seems likely to be the crucial point for any new sense that clause 11 was
superfluous. This does not require acceptance of the conventional argument
that the clause was designed, and understood, to counter royal manipulation
of the Jews. What John may have been failing to respect is the application
of these principles in his courts against guardians whose political and
military support he needed. It is in this way that John's disappearance from
the scene and his replacement by a baronial government may have been
thought to make the retention of clause 11 superfluous, and this explanation
of its omission, which interprets it as a clause about guardians, is a strong
possibility.
162. V.H. Galbraith, Roger Wendover and Matthew Paris (Glasgow, 1944) 34-37; V.H.
Galbraith, 'Good Kings and Bad Kings in English History', History, xxx (1945) 125,
127-30; 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.
164. For its attitude to guardians, see note 196 infra and text infra at 400-401.
VII
That, however, is not how the makers of the 1216 reissue did not explain
their omission of clause 11. They say nothing about superfluousness, on
whatever basis. They say rather the opposite: that they are postponing for
further discussion165 'quedam capitula [which] in priori carta continebantur
que gravia et dubitabilia videbantur'.166 Although we should not automati-
cally believe what they say, these sound like questionable matters rather
than superfluous matters, an impression confirmed by what follows, for they
then go on to list their omissions by means of descriptive phrases: 'scilicet
de scutagiis et auxiliis assidendis, de debitis Judeorum et aliorum, et de
libertate exeundi de regno, vel redeundi in regnum, et de forestis et
forestariis, warennis et warennariis, et de consuetudinibus comitatuum, et
de ripariis et earum custodibus'.167 We must remember that clause 10 of the
1215 charter, concerning interest, was one of their omissions, but clause 11
as well as clause 10 is no doubt meant to be covered by 'de debitis Judeorum
et aliorum'. It is significant that none of the other descriptive phrases which
they use fits unscrupulous guardians: all can be exclusively related to other
clauses of the 1215 charter,'68 and, if Rothwell is to be believed,169 no other
omitted clauses go unacknowledged, apart from those relating to the
political circumstances of summer 1215,170 so presumably this one is
acknowledged by the second phrase of the list. In 1216, it must be admitted,
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.
those in charge of the reissue, or, at least, their officials and clerks,171
considered clause 11, as well as clause 10, to be particularly about Jews and
to be sufficiently identified by this phrase, with no mention of guardians.
Indeed, it could be argued172 that the phrase was carefully chosen so that it
would cover clause 11 as well as clause 10, for clause 10 mentions only
Jewish creditors, except insofar as it mentions that Jewish debts could fall
into the king's hands,173 whereas clause 11, like this phrase, mentions other
creditors also.174
This last fact makes it less likely, though it does not rule out the
possibility, that clause 11 was dropped by accidental association with clause
10, in that it, also, mentioned Jews and it came immediately afterwards in
a document whose conventional charter form minimised the distinction
between the clauses.'75 Although the principles of clause 11 might be so
patently just that after John's demise it seemed superfluous to repeat them,
clause 10 might well strike those who were trying to run the country in the
king's name as questionable, for one can interpret that clause to deny the
crown the interest which had accumulated before the original debtor died. 176
If this was the result of poor drafting, it would of course have been possible
to amend it in 1216, as was done with other clauses.177 Indeed, even a
change of intention could have been incorporated, as in other clauses,178 if
there was agreement on the intention among those responsible for the
reissue. It may be that most of the clauses dropped in 1216 before clause 49
of the 1215 charter179 were ones on which agreement of precise intention
could not be immediately obtained, rather than ones which were intended to
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.
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.
be completely and permanently eradicated.180 Certainly, some, including

clause 10,181 re-emerged in different forms later;182 the forest matters in
clauses 48 and 53, together with those in clauses 44 and 47, were elaborated
into a whole new charter, the Charter of the Forest of 1217.183
In 1216, however, if not in 1236,184 it may have been the whole of clause
10, rather than merely the point about accumulated interest, which was
regarded as questionable and, perhaps, to be eradicated, so that it appeared
neither in the 1217 reissue nor in the 1225 reissue. Clause 11 was similarly
omitted, whether by the accidental association185 made by clerks who were,
however, careful enough to pick up 'others' in their descriptive phrase, or
by the more or less deliberate association made by those in charge of the
1216 reissue. Given the care with which the reissue was in other respects
arranged,186 the latter seems more likely. There was already faintly evident
some change of attitude to the two clauses between the time of the Articles
and that of Magna Carta.187 By 1216, it seems, clause 11 was thought of, at
least, by those in charge of the reissue, as part of 'the question of the Jews',
although other creditors could continue to be lumped in with them. As such
a question, one affecting, if only slightly,188 the financial operations of the
new baronial government, because of the link which had grown up between
the Jews and the crown whose affairs that government was administering,
the whole matter of clauses 10 and 11 was dropped from the reissue to allow
time to think about other questions also, notably the question of the forest
180. That there were some of the latter sort is generally agreed. For example, F.M. Powicke,
King Henry III and the Lord Edward: The Community of the Realm in the Thirteenth
Century (Oxford, 1947) 6-7, 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.
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.
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.

188. It would seem a matter more of principle than of great practical substance. See text
supra at 391.
and the question of scutage and aid. It is true that, as regards the forest, they
were perhaps more discriminating than in the case of clauses 10 and 11: they
dropped only clauses 48 and 53 on the forest,189 retaining the less radical
clauses 44190 (clause 36 of the 1216 reissue) and 47191 (clause 38 of the 1216
reissue),'92 whereas, it can be argued, their dropping of clause 11 consisted
of lumping it together with clause 10' even though in origin it was not
focused on the Jews.
Although it is not borne out by the retention of clauses 44 and 47, those
in charge of the 1216 reissue may have been looking for clauses to drop.
Certainly their main object was to produce a charter to conciliate the
opposition which had produced the original charter,'93 and this limited the
number of omissions which could be made. But it was also necessary to save
face not only for themselves, as Angevin supporters, but especially for the
papacy and its representative in England. Not many months previously a
papal bull had solemnly annulled Magna Carta and the nuncio had
condemned the king's opponents by name.194 To make it clearly different
from the annulled charter, it was desirable to omit as many clauses as
possible. No doubt what was more helpful was the fact that there were a new
pope and a new legate. Nevertheless, this possible motive may have been a
contributory factor in the treatment of clause 11 as part of 'the question of
the Jews' in 1216 despite the clause's links with 'the question of guardians'
at the time of the Articles.
The most obvious of these links was the combination of the principles of
clause 11 with that of the second half of clause 5 in clause 35 of the
Articles.195 To see how contemporaries looked on clause 11, it would
interesting to know what would have happened in 1216 had the charter n
been reorganised in 1215 but reproduced the whole of clause 35 of t
Articles as it stood. Would the clause (including the mention of Jews) hav
been preserved in the 1216 reissue as clause 5 was, with certain changes,1
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 w
the forest, only chapter 44 was retained'.
192. In a sense this was radical, for it concerned the extent of the forest. However,
disafforested only John's additions to the forest (and river banks), which were minim
Holt, Magna Carta, 236.
193. However, see the cautionary words ibid. at 272.
194. Christopher R. Cheney, Pope Innocent III and England (Stuttgart, 1976) 378-
Pandulf's position is not entirely clear. He may have been defending the charter again
extremists. He had probably left England by the time the papal annulment reached th
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
as one of those 'provisions which were concerned with feudal incidents', or

would it have been omitted as one 'of those sections which intruded into
problems of ... [royal] finance'?197 That it mentioned Jews, even though
it also mentioned other creditors, may have been enough to ensure that, like
clause 10 of the 1215 charter, it would be omitted, perhaps simply because
the Jews, like the forest,198 were thought by the Angevin supporters
dominant in 1216 to be specially in the purview of the crown.199
Thus the explicit obligation laid on guardians to return the land to the heir
fully stocked would have dropped out of the reissue. This is especially
plausible in view of the impression given that those who reissued the charter
may not have been very enthusiastic supporters of minor heirs and their
families but were perhaps more conscious of their position as guardians.200
They acquiesced in the principle that heirs should be married without
disparagement, but dropped from that clause (clause 6 in the 1215 charter;
clause 6 in the 1216 reissue) the detail that the relatives of a minor heir
should be informed before his marriage was contracted-itself a watering
down of the statement in clause 3 of the Articles that the marriage should be
on the advice of the relatives.201 In clause 3 of the reissue they specified
twenty-one as the age of majority for heirs. While this stopped guardians
from retaining a wardship beyond a certain age, it seems likely that it was
mainly intended to protect guardians from an heir's claim to be adult before
this customary age, as is implied in the last provision of the clause: 'if he is
made a knight while still under age . .'. Similarly, although they did retain
the principle that guardians should return the land to the heir fully stocked,
they altered the wording so as to ensure that guardians were not obliged to
return it stocked more fully than it was when they had received it, and the
level of stocking was not tied to the time of year.202 They may have been
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.

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
quite happy to see the level of stocking on the return of the land to the heir
conveniently slip out of the charter altogether as they omitted a clause which
could be considered to be on the questionable matter of the Jews.
On the other hand, even if we are right in attributing to them a wish for
such sharp practice, they may not have thought that they could get away
with it, and the clause may have been split in 1216 had it not already been
split in 1215. The continuous text of the 1215 charter,203 from which men
were presumably working in 1216, would indeed have made such splitting
easier than it had been in 1215, for a sentence could be omitted without any
realisation that this constituted a splitting of what in the Articles had been a
separate clause. If no splitting had taken place at either date we might find
clause 11 of Magna Carta being retained, if somewhat reluctantly, by those
in charge of the 1216 reissue, because it was considered mainly as being
'concerned with feudal incidents'; that is, with guardians and the problems
of wardship.
VIII
In reality, what seems to have happened is that by being split from

context, which mentioned guardians, a matter which was primarily ab
guardians was, to some extent on purpose, made to look in Magna C
more specifically about the Jews and royal debt-collecting, with which
was grouped; and by the time Magna Carta was reissued in 1216 th
responsible for this reissue fully accepted this new orientation, wh
again, they may have found convenient. In our assessment of clause 11
would be foolish to ignore such things as the well-attested popular fee
against the Jews,204 and John's attempt to gain political advantage
relaxing the stringency with which he collected Jewish debts,205 but
should not allow these matters to hide other clues. That the Jews and r
debt-collecting were not the original target is supported by the mention
'others'.206 The Articles and Magna Carta were aimed against other gro
in society also,207 and guardians can be seen as one such group, capable
harming others, to their own profit, in various ways, noted explic
elsewhere in these documents as well as, implicitly, in clause 11 of Mag
with ploughs and all other things in at the least the measure he received.' Holt a
Rothwell construe 'totam' differently in their respective translations of clause 5 in 1
and 1216; cf. Rothwell, ed., supra note 12 at 317 n.l.
204. See text supra at 385.
Carta.208 We are probably justified in seeing a tension in feudal society at

this time between an older tradition of the local power of feudal lords acting
as guardians in their own fiefs (perhaps visible in the 'reactionary'
weakening of the provisions against guardians in successive documents) and
a newer, developing tradition of generally applicable legal rules regulating
feudal society.209 The particular rules in clause 11 were already probably
widely accepted.210 Magna Carta needs to be studied in the context of
contemporary social and legal developments at all levels of feudal society.
Clause 11, this article suggests, has been considered too exclusively as part
of a political attack by the great barons opposing John, despite acknowl-
edgment of its superficiality.211 Those who framed the documents, including
the 1216 reissue, are largely responsible for this, whether they were
bureaucrats or politicians.212 In particular, their reorganisation of clause 35
of the Articles213 obscured, perhaps for contemporaries and even more so for
historians, the connection between creditors (Jews or others) and unscrupu-
lous (or old-fashioned) guardians.

211. See text supra at 368 and 386.
212. See text supra at 384-85 and 396-97.

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Jews, Guardians, and Magna Carta, Clause 11

Clause 11 of King John's Magna Carta has not received as searching an

20. McKechnie, supra note 2 at 141.

27. Holt, Magna Carta, 273.

29. See text infra at 384-85.

lacking in England. If they avoided overt usury,32 they nevertheless

33. Richardson, supra note 7 at 58.

35. Gilchrist, supra note 31 at 72.

improvement largely devoid of constitutional principle or political signifi-

43. Holt, Magna Carta, 225.

Unscrupulous guardians may have been trying to protect their own

Carta.50 It must be admitted that this first provision in clause

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

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

lifestyle as perceived in contemporary eyes, and this provision in clause 11

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

guardians, it probably reflects the slow development of general legal rules

As against the above arguments, which are to some extent conjectural, it

68. Painter, supra note 38 at 316.

80. Holt, Magna Carta, 305.

87. 'Per residuos de xxv substituantur.'

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

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

considerations underlying the splitting of clause 35. The other exception is

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

100. Painter, supra note 38 at 317.

102. Ibid. at 495.

103. See text supra at 372-73.

exaggerated. Neither the Articles nor Magna Carta substantially or compre-

107. See text supra at 374-75.

112. Ibid. at 205-206.

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

116. Clause 14.

137. See text supra at 372-73.

into various points concerning Jewish property (but perhaps only in

140. Ibid. at 127.

145. See notes 16 and 17 supra.

152. See text supra at 377-78.

155. See note 46 supra.

unscrupulous, or creditors from being aggressive, rather than to continue

be respected by guardians in connection with all debts, Jewish or non-

165. Ea esse in respectu quousque plenius consilium habuerimus-'these being deferred

be completely and permanently eradicated.180 Certainly, some, including

187. See text supra at 385-86.

195. See text supra at 378ff.

as one of those 'provisions which were concerned with feudal incidents', or

201. See text supra at 389-90.

In reality, what seems to have happened is that by being split from

Carta.208 We are probably justified in seeing a tension in feudal society at

208. See text supra at 375-77.

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