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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: University of Illinois Press for the American Society for Legal History
Stable URL: http://www.jstor.org/stable/743832
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Jews, Guardians,and Magna Carta,
Clause 11
R. Malcolm Hogg
Clause 11 of King John's Magna Cartahas not received as searchingan

examination as have other clauses of that document.' For example,
McKechnie'scommentrunsto 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',3and on clauses 53 and 574 are shorter. True, some of the points
which have relevancefor clause 11 are made in his commenton clause 10.
But nearlyall such points concernthe Jews, whereasit is the intentionof the
R. MalcolmHoggis lecturerin Historyat St David'sUniversityCollege,Lampeter,

in theUniversity
of Wales.
1. For example, on clause 39: C.H. Mcllwain, 'Due Process of Law in MagnaCarta', 14
ColumbiaLaw Review (1914) this essay is reprintedwith an additionalnote in C.H.
McIlwain, Constitutionalismand the Changing World:Collected Papers (Cambridge,
1939); F.M. Powicke, 'Per IudiciumParium Vel Per Legem Terrae', in Henry Elliot
Malden, ed., Magna Carta CommemorationEssays (London, 1917) this essay is
reprintedin James C. Holt, ed., Magna Carta and the Idea of Liberty (New York,
1972);P. Vinogradoff,'MagnaCarta,C. 39: NullusLiberHomo, etc.', in Malden, ed.,
supra;BarnabyC. Keeney, Judgmentby Peers (Cambridge,Mass., 1952), chapter3,
'MagnaCarta,Clause Thirty-nine';on clause 34: N.D. Hurard, 'MagnaCarta,Clause
34', in R.W. Hunt, W.A. PantinandR.W. Southern,eds., Studiesin MedievalHistory
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 CommuneConsiliumRegni
in Magna Carta', in Joseph R. Strayer and Donald E. Queller, eds., Post Scripta:
Essays on MedievalLaw and the Emergencyof the EuropeanState in Honor of Gaines
Post (Rome, 1972). For twenty years J.C. Holt's Magna Carta (Cambridge, 1965)
[hereinafterreferredto as Holt, Magna Carta] has deservedly been the standardwork
on Magna Carta, but it rarelydevotes more than a few sentences in any instance to a
particularclause. 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 reprintedwith slight
revisions (see the additionto the preface) but with the same pagination.
2. William SharpMcKechnie,Magna Carta:A Commentaryon the GreatCharterof King
John with an Historical Introduction(Glasgow, 1914) 231. The first edition of this
book was publishedin 1905, but it is to the significantlyrevised 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 shortenedversions of the comments on them
in McKechnie's first edition.
368 Law and History Review
presentarticleto arguethatthe Jewish aspectof clause 11 has been too much

discussed,5 or too much assumed, at the expense of other aspects,
particularlyits connection with guardians.After all, the common assump-
tion thatclause 11 representspartof a baronialattackon the Jews6has been
coupled, ratherparadoxically,with the admissionthat it was too superficial
to have much effect on the Jews.7 It is worthwhile inquiringwhether the
paradoxreally exists. Is the superficialeffect on the Jews an indicationthat
the purposeof the clause, at least in its origin, lay in a differentdirection?
This articlewill suggest the possibilitythatunscrupulousguardianswere the
primarytargetof 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
thinkingthatthe English Jewrymight not be underattackin this clause will
then be introduced. The reasons why, instead, unscrupulousguardians
might be the targetof the clause must be adduced;this includes recognition
that the clause may not concern only, or even primarily, the king's
politicallyimportanttenants-in-chief.Next, the derivationof clause 11 must
be explored:in particular,the context in which the substanceof clause 11 is
to be found in the Articles of the Barons ('Magna Cartaitself in embryo'),8
and the rearrangementwhich occurredas the Articles were transformedinto
the charter,will be an importantpart of the argument.9It may be justified
to deduce from the rearrangementthat a change in contemporaries'
5. See also, for example, RichardThomson,An Historical Essay on the Magna Chartaof
King John (London, 1829) 175-78.
6. McKechnie, supra note 2 at 228: the Jews were 'subjectedto harsh treatmentby the
King's enemies', and 'it is not to be wondered .. .that the same insurgentsincluded
provisions against usury' in Magna Carta. H.G. Richardsonand G.O. Sayles, The
Governance of Mediaeval Englandfrom the Conquest to Magna Carta (Edinburgh,
1963) 337-38, point out that archbishopLangtonwas an active persecutorof the Jews,
and Langton has been credited, although not by Richardsonand Sayles, with much
influence on the contents of Magna Cartaand 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
superficialitysee also Richardsonand Sayles, supra note 6 at 388 n.2: 'The clauses
concerningthe Jews do not appearto embody any new principle', althoughthe logical
relationshipbetween the first two sentences of this footnote appearsto run counterto
that between its final two sentences-perhaps because of ambiguous wording; and
H.G. Richardson, The English Jewry under Angevin Kings (London, 1960) 142,
speakingmore particularlyof clause 10: '[the barons]seem to have been pushingat an
open door'. See text infra at 392-93.
8. ArthurJefferies Collins, 'The Documents of the Great Charter',Proceedings of the
British Academy, xxxiv (1948) 235.
9. 'It is difficult to make anythingof the similaritiesand differencesbetween the Articles
and the Charterin the orderin which the items occur': Holt, Magna Carta, 314. As a
general propositionthis is true, but of one difference something can be made. Holt
explores the propositionfurtherin J.C. Holt, 'Magna Cartaand the Origin of Statute
Law' in Strayerand Queller, eds., supranote 1 at 494-95.
Jews, Guardiansand Magna Carta, Clause 11 369
perceptionof the targetof the clause was takingplace-a slight change away
fromunscrupulousguardiansand in the directionof the Jews. The slightness
of the change may be shown by the omission of the clause from the reissue
of MagnaCartawhich took place in 1216 afterJohn's death. Finally, it will
be argued, on the contrary,that althoughthere are other possible explana-
tions for this omission, concerningJews or guardians,it probablyoccurred
because this change in contemporaries'perceptionof the targetof the clause
had indeed progressedfurtherby 1216.
The conclusions reached here must remain tentative, for much of the
argumentwill be hypothetical. Some of it, too, will rest on analogy with
other clauses in these documents, which assumes a consistency that may
not be presenteven 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.10Historianswith 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 appliedby the financialadministrationandcourts
of John and his successor." But it is hoped that this article will lead to
greaterunderstandingof clause 11, and perhapsof other aspects of Magna
Carta.
Clause 11 states: 'Et si quis moriatur,et debitumdebeatJudeis, uxor ejus

habeatdotem suam, et nichil reddatde debito illo, et si liberi ipsius defuncti
qui fuerintinfra etatem remanserint,provideantureis necessariasecundum
tenementum quod fuerit defuncti et de residuo solvatur debitum, salvo
servicio dominorum;simili modo fiat de debitis que debenturaliis quam
Judeis'. 2 As the Jews are specified in the eighth word of this clause, it
would certainlyseem that the clause is directedat Jews, althoughone must
considerthe significanceof the 'others'mentionedin the final phrase.'3This
usual assumptionis corroboratedby 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
nothingof that debt; and if he leaves childrenunderage, their needs shall be met in a
mannerin 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.' Printedin Holt, Magna Carta, 320. The translationof King
John's Magna Cartawhich is used in this article is that of Holt, ibid. at 317-37. The
translationof the Articles of the Barons and other documentswhich is used is that of
HarryRothwell, 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
(clauses34 and35). These clauses of the Articlesareprintedin Holt, MagnaCarta, 310.
They are translatedin Rothwell, ed., supranote 12 at 314.
15. One interpretationof clause 38 of Magna Cartais that, withoutexplicitly mentioning
Jews, it was aimedat them, becausethe 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 prefersanother. See note 133 infra.
16. Printedand translatedin Holt, Magna Carta, 320 and 321. The relationshipbetween
the two clauses is not entirely clear. Since, accordingto clause 10, a Jewish debt is to
carry no interest as long as the deceased's heir is a minor, it is presumablyto his
advantage-or, at least, to his guardian'sadvantage-that the principalshould 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 principalat the due date, so that the debt might not continuefor as long as the heir
was a minor;and the likelihoodof the enforcementof thatright was greaterif the king
was closely supervisingthat 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
intendedto deprive a Jew of interest which has already accrued before the debtor's
death or which accrues after the heir comes of age. Perhapsthe 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,
'WhatMagnaCartaWas', in The GreatCharter:Four Essays on Magna Carta and the
History of Our Liberty(New York, 1965), takes it literally. Ibid. at 12 and see text
infraat 397. It may be justifiableto assume, on all the above points, thatthe intention
is the same as thatexpressedtwenty-oneyears laterin clause 5 of the Statuteof Merton,
which is clearerbecause it does not mentionthatsuch a debtcan be in the king's hands:
'. . . in futureinterestis not to run against anyone underage from the time when his
ancestor, whose heir he is, died until his coming-of-age; so neverthelessthat on this
account payment of the principaltogether with the interest [for the time] before the
deathof his ancestor, whose heir he is, is not to be stayed'. The Statutesof the Realm
(RecordCommission), i (London, 1810), Statutes,3. This is as translatedin Rothwell,
ed., supranote 12 at 353. See also note 17 infra.
17. The last three words conform to the interpretationassumed by, for example,
McKechnie, supranote 2 at 224, and specified by Holt, Magna Carta, 233 n.2, that
'the debitumillud of the last section of this clause refersnot to Jewish debts in general,
but to those debts which lay againstminors'. As Holt points out, it is only on debts in
the lattercategorythat clause 5 of the Statuteof Mertonof 1236 forbids interestto be
taken, and it seems likely that in that clause the Statute(althoughnot mentioningJews
explicitly) is re-enactingclause 10. Holt, Magna Carta, 234. Richardson,supranote 7
at 143, on the other hand, evidently understandsclause 10 to forbid the king to take
interestin any circumstanceswhen Jewish debts fall into his hands. Holt seems to be
going too far in claiming that this clause of the Statuteof Merton also confirms the
principleof clause 11 of MagnaCarta:it says nothingaboutwidow, children,or lords,
but merely allows the repaymentof the principaland any interestwhich accumulated
before the debtor's death. See text infra at 392.
Jews, Guardians and Magna Carta, Clause 11 371
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, supranote 2 at 141.
21. Richardson,supranote 7 at 12. There is a long traditionof such statements.As noted
in McKechnie, supranote 2 at 230, 'Bracton'had said much the same thing: 'Judaeus
vero nihil propriumhaberepotest, quia quicquidacquirit non sibi acquirit sed regi-
The Jew could have nothingof his own, for whateverhe acquired,he acquirednot for
himself but for the king.' George E. Woodbine, ed., and Samuel E. Thorne, trans., De
Legibuset ConsuetudinibusAngliae, 4 vols. to date (Cambridge,Mass., 1968) iv, 208.
This was a phrase probablynot written by Bracton himself. Ibid. at i, 417. It is not
translatedby Thorne, and the translationgiven above is McKechnie's, using the past
tense. Thomas Madox, The History and Antiquitiesof the Exchequerof the Kings of
England (London, 1711) 150, said: 'They seemed to Tradeand acquirefor His profit
as well as their Own.'
22. The ramificationsof the Jews' relationshipwith the king are traced in such works as
McKechnie, supranote 2 at 224-31, and Richardson,supranote 7, passim.
23. McKechnie, supranote 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 charter29is 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 furtherdetails 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 construedas includingthe king, let alone
specifyinghim exclusively. The king would not have been so obliquelyreferredto; 'us'
would have been used, just as in the previous clause, about interest on debts, 'our
hands'hadbeen mentionedanda verbin the first personpluralhad 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 habituallyidentifiedas 'debts to
the king' or 'debts to us' (let alone 'debts to another')by the king's administration
which suppliedthe clerks who probablyhelped with the wordingof Magna Carta(see
text infra at 384). Instead, they continued to be referred to, typically, as 'debita
Judeorum' (this phrase appears frequentlyon the Pipe Rolls, for example: see the
indexes of the printededitions). In clause 11 this sort of debt was probablyintendedto
be coveredby 'a debt to the Jews'. The phraseused in the 1216 reissueof MagnaCarta,
apparentlyreferringto this clause, was 'debitis Judeorumet aliorum'. See text infra
at 396.
30. Printedin Holt, Magna Carta, 310; translatedin Rothwell, ed., supranote 12 at 314.
31. For the varietiesof this attitudesee J. Gilchrist, The Churchand EconomicActivityin
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:38unlike
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-Jewishcreditorswere not referredto in
clause 10 of Magna Carta, which concerns the levying of interest.
33. Richardson,supranote 7 at 58.
34. CharlesJohnson,ed. and trans., TheCourse of the Exchequerby Richard, Son ofNigel
(London, 1950) 99.
35. Gilchrist, supranote 31 at 72.
36. The precise intention of the clause is unclear. Some suggestions made by other
historiansare dismissed in Holt, 'Magna Cartaand the Origin of StatuteLaw', supra
note 9 at 497 n.23. In addition, the clause is discussed in: C.A.F. Meekings, ed.,
Crown Pleas of the WiltshireEyre, 1249 (Wiltshire Arch. and NaturalHist. Soc'y,
RecordsBranch, 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 Cartaand the Origin of StatuteLaw', supranote 9 at 497-98.
38. Forthe growthof this influencein the draftingsee, 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 practicesof the government'. See ibid. at 323.
40. For example, McKechnie, supranote 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 quarrelof 1215'; the clause, 'one of the most reactionaryin the
Charter', was 'a reversal of a line of policy vigorously pursuedfor half a century'
whereby 'the feudal lord . . . was thus robbedby the King of his jurisdiction'because
'the King hoped . . . to destroygraduallythe 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 embarkingon a new policy of encouragingplaintiffsto bringtheiractions
directlyto his court, regardlessof the way in which baronialfeeling was boundto react'
(xxx); financial gain may have been his purpose (xxix-xxx); but it was John himself
who was responsiblefor the new policy, for 'it neededthe presencein Englandof a king
interestedin legal process to convertthese isolatedpurchasesof privileges . . . into the
matterof course acquisitionof a precipe . . .' (xxiv); however, the baronialattackon
this royal policy was moderate,as 'theprecipe clause in the GreatChartermay perhaps
be regardedas a compromise' (xxxii).
41. Humard, supranote 1. It saved the holder of a feudal court 'the troubleof puttingin
an appearancein orderto claim the action'. Ibid. at 179.
42. Clanchy, supranote 1. Humard'sviews were acceptedby Holt, Magna Carta, 225-26.
Holt referredto Clanchy's articleof July 1964 in a footnote, but perhapsdid not have
time to take it fully into accountbefore his book was published;the prefaceof his book
is dated August 1964.
44. S.F.C. Milsom, The Legal Frameworkof EnglishFeudalism(Cambridge,1976) 67-71
('The mischief is thatdemandantschoose to go directlyto the king's court'), 78, 80 and
101-102.
45. Examplesof the superficialityof the so-called attackare given in Holt, Magna Carta,
233: 'The Charter had nothing to say about the acquisition of Jewish bonds by
monasteries,or of the inordinaterates of interestwhich were charged. It allowed the
reversionof the debtsof deadJews to the Crown.It said nothingof the mannerin which
the Crownhad in the past distrainedon 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 truethatclause 11 of John's promisesin the UnknownCharter(printedibid. at 303;

translatedin Rothwell, ed., supranote 12 at 311), which is usually takento precedethe
Articles of the Barons (Holt, Magna Carta, 298), says only that the Jewish debts of
royal wardsare not to carryinterest(includingthose wardsgrantedaway by the king).
But this is not necessarilyintendedto be especially againstthe king: it couldjust be that
the charterwas drawn up in a rough and ready fashion by tenants-in-chiefwho 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 situationswhen Jewish debts fall into his
hands, although, it is true, this ban may have been assumed. However, it must be
admittedthat all otherclauses of the UnknownCharterattackthe king in a fairly direct
manner:there is nothing here about fish-weirs or weights and measures, for example,
let alone aboutappealsby women. In this respect, the argumentadvancedin this article
aboutclause 11 of MagnaCartais strongerthanthe one which could be advancedabout
clause 10 of MagnaCarta:no early version of clause 11 of MagnaCartaappearsin the
more thoroughlyanti-royalistUnknown Charter.
47. See text infra at 389 for earlier and more drastic attackson guardians.
48. It was necessarywhen the husbandhad not nominateddower, i.e. namedspecific lands
as dower: FrederickPollock and FredericWilliam Maitland, The History of English
Law Before the Time of EdwardI, 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
'hujusmodiheredis' is used in clause 4, referringto 'heres alicujus talium' in clause 3,
which in turnrefersto tenants-in-chief,specified in clause 2; but it is widenedby clause
60, which states that the liberties which the king has grantedin favour of his men are
to be observed by all towardstheir men. See text infra at 380, and 389 and note 119
infra. Clause 4 of HenryI's charterof 1100 had explicitly statedthat the king's barons
were to act towardsthe sons, daughtersand widows of theirmen as he promisedto act
towardstheir own sons, daughtersand widows. See text infra at 387.
51. It had been so applied. See text infra at 392-93.
52. See the argumentthat in the Articles there is an additionallink with guardians,in text
infra at 378ff.
53. This does not seem to assume that all the children, includingthe heir, are necessarily
minors. For example, an adult heir might be the guardianof his minor brothers.
54. Thatthe childrenshould be kept in such a style is very similarto the rule expressed in
clause 6 of MagnaCarta,applicableto guardians (as is seen clearly in clause 3 of the
Articles of the Barons), that heirs should be marriedwithoutdisparagement.
55. For wardshipsas investments, see text infra at 388-89.
56. For the full significance of this last point, see discussion of the parallelcase of clause
35 of the Articles, in text infraat 378-82. Thereis nothingto suggest thatthe rule about
marriagewas a misplaced addition. It runs on to a new line.
57. For this matter, see text infra at 400-401.
lifestyle as perceived in contemporaryeyes, and this provisionin clause 11

of Magna Cartawould seem to bear on guardiansjust as much as clauses 4
and 5 do.
The thirdprovisionin clause 11 may have been includedin orderto avert
a mischief similar to that suggested above in connection with the second
provision. Just as unscrupulous guardians, in attempting to ensure the
profitabilityof wardships,may have respondedto the demandsof 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 paymentof service to the feudal lords. The principle of this
thirdprovision would apply, like the first provision, even where there was
no minorheir and hence no guardianof the land: service to his lords should
not be ignored, for example, by an adult heir when he allowed creditorsto
collect his father's debts from his land. However, such guardians-
particularlyones 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),58for the phrase under
considerationis tacked on to the end of the provisionabout minorchildren.
On the other hand, the provision embodied in this added phrase would in
many cases be superfluous, for often the guardianwould himself be the
deceased's lord59--or, at least, one of his lords.
The mention in this third provision of lords apparentlyother than the
king60should perhapsbe consideredin conjunctionwith the opening phrase
of the clause, 'And if anyone dies', as contrastedwith, for example, 'If any
of our earls or baronsor othersholding of us in chief by knightservice 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 Carta62were thinking particularlyof the topmost level of feudal
society and of any political bitterness aroused at that level by financial
difficultiesresultingfrom the king's manipulationof 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
membersof feudal society are being considered, and perhapsprimarilythe
most numerousones at the lower levels of that society.
If Clause 11 of Magna Carta was concerned, as argued above, with
58. Thisseemslikelyto be truedespitethe caveatnotedaboveaboutthe guardianship of

children.See note53 supra.
non-inheriting
59. See, for example,Holt,MagnaCarta,214.
60. 'Lords'mightbe meantto includethe king ('dominusrex'). On the otherhand,it is
worthnotingthatin clause8 of MagnaCartathe king andotherlordsare carefully
even thoughthe ruleappliedto eachis the same.
distinguished
61. Forthisclause,see text infraat 383-84.
62. The sameargument canbe appliedto clause10.
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, supranote 44 at 65-66 and 174-75.

64. Cf. S.F.C. Milsom, 'Introduction',in Pollock and Maitland,supranote 48 at xxx.
65. Ibid. at xlix.
66. In fact, of course, it also mentionsothercreditors,which weakensthe objectioninsofar
as this is based on the conventional interpretationof the clause. See text supra at
372-73.
67. See the example given in text supraat 372. A similarexample is the charter'saddition
of 'and pay nothing of that debt' to the phrasealready in the Articles, 'his wife may
have her dower'. The intentionall the time was surely to guaranteethat the debt in no
way diminishedher income, whetheras a charge on her dower land or as a charge on
any other revenue or lands which she enjoyed. It could, however, be arguedthat the
additionalwords were necessaryto carryout this intention.
68. Painter, supranote 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 Cartaand the Origin of StatuteLaw', supranote 9 at 494-95.

70. It contains twenty-seven words, as comparedwith thirty-fivein the first part.
71. 'And that the guardianof the land shall restoreto the heir when he comes of full age
his land stocked, accordingto what he can reasonablybear from the revenues of the
land, with ploughs and the means of husbandry.'Printedin Holt, Magna Carta, 310;
translatedin Rothwell, ed., supranote 12 at 314.
72. This contrastswith the clauses of the four survivingcontemporaryengrossmentsof 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.CharlesB6mont, Chartesdes
Libertes Anglaises (1100-1305) Publiees avec une Introductionet des Notes (Paris,
1892) 26. The latteris the normalformatof a royal charter.
73. Holt, 'Magna Cartaand the Origin of StatuteLaw', supranote 9 at 494.
74. C.R. Cheney, 'The twenty-five Baronsof MagnaCarta', Bulletin of the John Rylands
Library, 1 (1967-68) 285. This essay is reprintedwith the same paginationin C.R.
Cheney, The Papacy and England, 12th-14thCenturies:Historical and Legal Studies
(London, 1982).
75. V.H. Galbraith,'A Draftof MagnaCarta(1215)', Proceedingsof the BritishAcademy,
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 reprintedwith the same paginationin V.H. Galbraith,
Kings and Chroniclers:Essays in English Medieval History (London, 1982).
76. Neither Cheney nor Galbraithexplicitly considers the possibility that the gap was left
for additions.
77. Photographsand 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
Statutesof the Realm, i, Chartersof liberties, between 6 and 7 (full size).
78. It correspondsto clause 60 of Magna Carta. See note 50 supra, note 119 infra and
at 389.
79. 'All these customs and libertieswhich the king has granted.'It is worthnoting thatthis
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
indicatethat the clause was felt, as suggested above, to be differentin naturefrom the
foregoing clauses; or it may indicatethat the clause was addedlater, withouta feeling
for the usual spacing; or (perhapsthe preferableexplanation)it may indicate that the
clause was initiallywrittenwith a considerablegap above it (perhapsbecauseit was felt
to be differentin nature)but clauses were then insertedabove it, failing to fill the gap
evenly.
81. C.R. Cheney, 'The Eve of MagnaCarta',Bulletinof the John RylandsLibrary,xxxviii
(1955-56) 330. This essay is reprintedwith the same paginationin Cheney, ThePapacy
and England, supranote 74.
83. The same is true of Galbraith,'A Draftof MagnaCarta(1215)', supranote 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'sargument,that several
drafts were produced by negotiations which turned the Articles into the charter, to
postulate the existence of written documentsbefore the Articles. In saying that 'the
peace-terms,alreadydebated . . ., were broughtto Runnymede', Cheney, 'The Eve
but both writersuse the term 'fair copy'84and Holt85says thatit 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
rewrittenversion, and so in the case of clause 35 it could be arguedthat the
text was unthinkinglycopied from a piece of parchmentwhich did not have
room for the addition of a separateclause and which had therefore been
added to in an inappropriatemanner. Leaving aside that possibility, one
would think that, if the authorsof the parchmentwhich has survivedfor us
to inspect felt that there no longer remainedsuitableroom to add a separate
clause, and did not consider that the matterwhich they wished to add was
closely associatedwith the first matterin clause 35, it is surprisingthatthey
did not add it to clause 3 ratherthan to clause 35. It is to clause 3 that it
belongs, according to Painter and Holt, for clause 3 says that guardians
should not waste the heir's land and thatthe heir should be marriedwithout
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
correspondingline of clause 35 where most of it is written.86
Assume for the moment that they did, perhapssomewhatcarelessly, add
the matterto a clause which was relativelyinappropriate.One would expect
to be able to detect it as a subsequentaddition. But on examinationof the
documentit seems unlikelythatthe second half of the clause was addedafter
the surroundingtext had been written. Firstly, no impressionis given at the
beginningof the second half that it was added as an afterthought.So far as
can be seen throughthe glass of the showcase in which the documentis kept
in the British Museum, the writing continuesevenly with the same pen and
ink. This contrastswith clause 37, a clause of two lines followed by a gap
which is largerthan that between any other two clauses except that before
the securityclause, and into which a line of writingcould if necessaryhave
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 stands87seem to
of Magna Carta', supra note 81 at 330, probablyassumes that they were in written
form. Yet at page 331 he appears to contradictthis by saying that, apart from the
UnknownCharter,the Articles were 'the first documentarystep towardsMagnaCarta'.
Cheney is probablynot botheringto distinguish between 'the peace-terms' and their
final form in the surviving document, but consideringthem in all forms-rough and
finished, written and oral-as 'the Articles'. The problemof the extent to which the
survivingdocumentcopied previousdocumentsis relatedto the problemof the function
anddate of the survivingdocument,on which Holt andCheneydiffer. See Holt, Magna
Carta, 305.
84. Cheney, 'The Eve of Magna Carta', supra note 81 at 330; Holt, Magna Carta, 157.
Both writersmake clear that it was of course an amendedfair copy.
85. Ibid.
86. See text infra at 382. In clause 35 the writingruns on to a new line also-but only for
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 materialfrom 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 engrossmentsby exaggeratedinitial
capitals. These can be seen in photographsand facsimiles, for example, as follows. (1)
Lincoln charter:Thomas Rymer, ed., Foedera (Record Commissionedition) i (pt. 1)
(London, 1816), between 130 and 131 (full size); Holt, Magna Carta, plates II and IIa.
(2) Salisburycharter:Elsie Smith, TheSarumMagna Carta:A Historyof the Document
and a Guideto its Translation(Salisbury,[1978]), providesa quarterof the charter.(3)
BritishMuseumCottonMS. AugustusII. 106: G.R.C. Davis, Magna Carta (London,
1963), plate V. (4) British Museum Cotton CharterXIII. 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 Trusteesof the CottonianLibrary(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,92put 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 ComparativeView of the Barons'
Articles and the Great Charter (State College, 1900), presentinga translationof both
documentsin parallelcolumns, in the orderof the clauses in the Articles, concludes at
page 5 that 'neitherpays much regardto logical arrangement'.Galbraith,'A Draft of
MagnaCarta'(1215), supranote 75, includessome discussionof the differencein clause
orderbetween the 'penultimatedraft' (ibid. at 347) and the charteritself.
93. There is one exception: Henry II's and Richard I's extensions of forest boundaries
which appearin the charteras partof clause 53. Holt, Magna Carta, 245, is misleading
in saying that the charter was less radical than the Articles with regard to their
extensions. Theirextensionsare not mentionedin the Articles, perhapsby an oversight,
althoughthey are mentionedin 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 Cartaand the Origin of StatuteLaw', supranote 9 at 495.
95. For this clause, see text supraat 377.
death (like clauses 10 and 11 of Magna Carta, but unlike clause 9, which
appliesto a living debtor),is left isolatedfrom those others. To be fair to the
draftersof Magna Carta, it must be admittedthat such was the variety of
links often possible between one clause and others that no single thread
could be followed to produce a sequence satisfactoryfrom all points of
view. Althoughclause 26, fromthe 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 particularlysignificant for the
presentargumentis the logic which the draftersfollowed, 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 guardianson to other
mattersin which guardianswere explicitly mentioned,but they threadedthe
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 guardiansand debt-collecting.
The rearrangementof clause 35 of the Articles may not have been merely
an applicationof misguided bureaucratictidiness to a written document.
Painter97thinks that Magna Carta'was the Articles of the Barons carefully
worked over by highly intelligent men with a thoroughknowledge of the
English government'who 'addedprecisionand exact definition' when they
'draftedthe greatcharter'and who were distinctfrom the barons:they could
be 'puzzled'by clause 13 of the Articles, and 'perhapsthey askedthe barons
what they meant'; 'it looks as if the barons told the drafters . . .'. Warren,
too, mentionsthat the wordingwas workedout 'with the cooperationof the
Chanceryclerks'98and speaks of 'the formal phraseologyof the Chancery
clerks who draftedit'.99 And Holt endorses Painter'sverdict 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 'administrativein conceptionand
objective', 'the productof experiencedand skilful secretarialeffort'.101But
96. These are also successive clauses in the Articles: clauses 15 and 16.
97. Painter, supranote 38 at 316-17.
98. Warren,supranote 10 at 236.
99. Ibid. at 240.
100. Painter, supranote 38 at 317.
101. Holt, 'Magna Cartaand the Origin of StatuteLaw', supranote 9 at 496. Among the
changes which were not 'political in content', Holt makes a useful distinctionbetween
'the minor changes [which] were the work of the Chancery clerks' and the more
substantialideas 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 supraat 372-73.
104. Richardson,supranote 7 at 46-7. One of the examples of fellowship and co-operation
here is fromGeraldof Wales, who also providesthe contraryexample notedbelow. For
criticism of Richardson's standpoint, see Gavin I. Langmuir, 'The Jews and the
Archives of Angevin England:Reflections on Medieval Anti-Semitism', Traditio, xix
(1963) 221-30. For 'communityrelations'between Jews and Christians,see also Paul
Hyams, 'The Jewish Minority in Mediaeval England, 1066-1290', Journal of Jewish
Studies, xxv (1974) 273-76.
105. Joseph Stevenson, ed., Radulphide Coggeshall ChroniconAnglicanum(Rolls Series)
(London, 1875) 171.
106. George F. Warner,ed. Giraldi CambrensisOpera (Rolls Series) viii (London, 1891)
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', English
Historical Review, lxx (1955) 10-11; Holt, Magna Carta, 60-61; Robert Bartlett,
Gerald of Wales 1146-1223 (Oxford, 1982), 66-67. All these writerspoint to the rough
similarity between what St Peter and the archangelsaid to the knight and what the
clauses of Magna Cartalay down.
exaggerated.Neitherthe Articles nor MagnaCartasubstantiallyor compre-

hensively attackedthe Jews and the king's use of them.107Perhaps what
Holt sees as the superficialityof the attack108can be explained, in his words:
'To the Christianlaymanof this time, the Jews were an unfortunatefinancial
necessity. Nothing could be done aboutthem or theirdebts, or the Crown's
established prerogativeto collect the debts of dead Jews'.109But if the
framersof MagnaCartawere consciously mountingany sort of an attackon
the Jews, ratherthanprotectingwidows, minorheirs and theirlords,l10it is
surprisingthat it was not a more substantialand comprehensiveattack, one
which, for example, might have stoppedthe king from collecting the debts
of living Jews.'1 The draftersof MagnaCartawere willing to mountmajor
attacks on other things which equally well might be seen as unfortunate
necessities and inevitablefacts of life. In particular,whatone could call 'the
question of the forest' springs to mind.
Of the forest, perhapsit could be said thatthe framersof MagnaCartasaw
it both as an unfortunatenecessity that had to be lived with and as a matter
in which they intendedradicalchanges. Holt112arguesthat merely for them
to make any regulation about the royal forest was a radical change, so
personalhad the connection hithertobeen between the king and his forest.
But, beyond this, they intended-and had intendedsince at least the time of
the Unknown Charter'3-that substantialand comprehensiveregulations
shouldbe made concerningthe forest, includingnot only a limitationof the
boundaries,but also a definition of evil customs so wide-rangingthat in
MagnaCartathey could get no furtherthan settingup the county-by-county
investigationon which it could be based. On the otherhand, all this assumed
the continuanceof the royal forest, even thoughtherewas evidently a strong
body of opinion in the country in favour of its abolition in the summerof
1215. In the north men proceededto 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
understoodby all partiesthat those forest regulationswhich were essential
to the keeping of the forest were to remain unaffected' by the local

108. See text supraat 368.
111. Holt, Magna Carta, 233, in admittingthe superficialityof the so-called attack, gives
the example of John's draconianmethodswhen he took over a debt to a living Jew in
1208.
112. Ibid. at 205-206.
113. Clauses9, 10 and 12 of John's promisesconcernthe forest, and are in some ways more
radicalthan MagnaCarta.CharlesR. Young, The Royal Forests of MedievalEngland
(Leicester, 1979) 61 and 64-65. In contrast, only clause 11 of John's promises,
protectingminor heirs of tenants-in-chieffrom 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
recognisedas 'the questionof the forest'. Althoughthe charterstoppedwell
short of total abolition, it was certainlyradical.
It was radical, too, in the very clause which followed the so-called attack
on the Jews. Clause 12, presumablyin orderto strikeat the root in what one
might call 'the questionof scutage' which had evidently been a majorcause
of the MagnaCartacrisis,15 made scutagehenceforthsubjectto the consent
of the king's tenants-in-chief16-a deliberateinnovation.117Whether this
innovationcame undera 'cloak' or was 'blatant',1l8 it shows in the framers
of Magna Carta a willingness to bring scutage completely under control,
althoughnot to abolish it.
From these examples it would seem that when those responsible for
MagnaCartawere clearly moved by a contemporarypolitical questionthey
respondeddecisively and comprehensively.They hardlyseem to have been
conscious of a 'question of the Jews' in the same way. It is true that one
could explain the superficialityof the so-called attackon the Jews by using
the argumentthat Holt119applies to the charterin general (although it is
hardlyapplicableto the two examples discussed above): the barons took a
'limited', 'blinkered'approachto it, based 'on custom and precedent', so
that 'where they were requiredto think originally [i.e. radically]they were
inhibitedfrom doing so'. However, it seems at least as plausible to argue
that they were not setting out to attackthe Jews as they were setting out to
attack the forest and scutage, but were merely protecting widows, minor
heirs and feudal lords. In Magna Cartathey did not consciously embarkon
114. Holt, Magna Carta, 247 and 348-49.

115. Holt, TheNortherners,supranote 26 at 98 and 100. Holt, Magna Carta, 136. But see
ibid. at 220.
116. Clause 14.
117. Holt, Magna Carta, 204-205. Despite Holt's comments, ibid. at 216-17, it seems likely
that this provision was meant to cover a decision on the grantingof scutage for an
expedition overseas, which was tantamountto a decision on the giving of service for
such an expedition, a point left up in the air by clause 16. Clause 7 of John's promises
in the Unknown Charterhad simply banned the king from demanding such service,
except for Normandyand Brittany. See Painter, supranote 38 at 313.
118. Holt, Magna Carta, 204-205, seems inconsistentin using both of these terms for the
same matter.
119. Ibid. at 206. Anotherpossible explanation,put forwardin general terms, ibid. at 233,
is that they were inhibitedin puttinglimitationson the Jews and the collection of the
Jews', and the king's, debts because this might shacklethem in theircollection of debts
from their own men. The generalprincipleenshrinedin clause 60 comes to mind. See
note 50 supraand text supraat 380 and infraat 389. However, the Jews, like the forest,
were really a special case connectedwith the king, withoutcounterpartslower down in
feudal society. A furtherpossible explanation,expressed succinctly by Bartlett,is that
the baronswere limited by what the king would accept. Bartlett,supranote 106 at 67.
One cannot press this explanationfar, and it does nothing to show why John would
accept radicalaction in other spheres and not in the Jewry.
the new principleof regulatingthe Jews, who were as personallyconnected

with the king as was the forest.120 They got no nearerthe conception of a
'questionof the Jews' thanputtingpassages which mentionedthe Jews into
a group with the general theme of royal debt-collecting. While not going
along with the view of historianssuch 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 otherfeudal classes-protecting themselves from financialmisfor-
tunes which they had suffered in the past-than with seeking to reorganise
the financial machineryof the countryand the crown by a thorough-going
attack on the Jewish money-lending system which could give rise to the
difficulties indicatedin these two clauses.
It is true, however, that as regards the whole matter of wardship the
framersof MagnaCartamay have been pulled two ways. On the one hand,
they might have bad memoriesof theirown times as minorheirs, 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 guardiansoccurred-or, at
least, was alleged to have occurred-for such cases came to the king's
courts.'22An inquest of 1202 was to say 'si ipse H. fecerit wastum de
hereditateipsius Ade aliterquamcustos facere deberet';123 anotherguardian
was summonedin 1214 'ad ostendendumquareipse. . .vastuminde fecit et
destructionemcontra regni consuetudinem'.124 On the other hand, they
might look on wardshipsas investmentswhich 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 LitterarumPatentium, i (pt. 1) (London, 1835) 33. This phraseis translatedin
J.C. Holt, King John (London, 1963) 8 n.3.
121. EdwardJenks, 'The Myth of Magna Carta', IndependentReview, iv (1904-05) (this
essay is reprintedbut wrongly dated in Holt, Magna Carta and the Idea of Liberty,
supranote 1);McKechnie,supranote 2 at 110, 254 and 386-87; CharlesPetit-Dutaillis,
Studies and Notes Supplementaryto Stubbs' ConstitutionalHistory 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 referencesarenotedbut not quotedin Holt, Magna Carta, 103, 202.
123. 'Whetherthe same H. made waste of the inheritanceof the same Adam otherwisethan
a guardianought to do' (my translation).D.M. Stenton,ed., TheGreatRoll of the Pipe
for the Fourth Yearof the Reign of King John, Michaelmas 1202 (Pipe Roll Society,
New Series, xv) (London, 1937) 66.
124. 'To show why he . . . caused waste and destructionthereof against the custom of the
realm' (my translation).Curia Regis Rolls, vii (London, 1935) 75-76.
125. Holt, Magna Carta, 216. Examplesof the sale of wardshipsas investmentsare given
ibid. at 214-16.
Cartadoes not say. In the case of minor heirs to land held of the crown,
which clause 4 is explicitly discussing, it probablyassumes that the king's
courts would deal with the matter, but what of lower ranks in the feudal
hierarchy,who are drawnin by the operationof clause 60?126Was the court
of a lord suitable if he was also the guardian?As Holt notes, the charter's
handling of wasting by guardianswas imperfect in other ways, too; for
example, 'no provision was made for the compensationof the ward where
wasting had occurred'.127Thus loopholes for guardians were left. And,
althoughon balanceit must be agreedthat the line which MagnaCartatook
againstguardianswas quite strong,128it representsa noticeablesofteningof
earlier attacks on guardians. Clause 4 of Henry I's coronation charter
virtuallyabolished guardiansin that it mentionedonly the widow or other
relationas havingthe custodyof minorheirs andtheirland;this was to apply
to heirs holding of the king's tenants-in-chiefas well as to heirs holding of
the king.129Clause 3 of John's promises in the UnknownChartermentions
only the heirs of tenants-in-chief(perhapsbecause 'these notes or memo-
randa'are 'so informala document');'30his actions as guardianare 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 Cartaare much less drastic. Clause 3 of
the Articles speaksof a guardian,a manfree to collect a 'reasonable'income
fromthe land;it may be referringspecifically to the heirsof tenants-in-chief,
but it is widened by clause 48 (clause 60 of MagnaCarta),which states that
the liberties which the king has granted in favour of his men are to be
observedby all towardstheir men.132MagnaCartadeals with guardianson
the same basis, and on one point which would affect some of them makes
a furtherslight concession: clause 3 of the Articles says that for the heir's
marriagethe advice of his nearest relatives is necessary, but clause 6 of
Magna Cartasays merely that they are to be informedbefore the marriage
126. See notes 50 and 119 supraand text supraat 380 and infra, this page.
127. Holt, Magna Carta, 216. In clause 4, sheriffs and similar officers who looked after
wardshipsfor the king were to make amends (to the king), but not guardians.
128. McKechnie, supranote 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 translatedin 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. Printedibid. at 303; translatedin Rothwell, ed., supranote 12 at 310. When discussing
the relationshipbetween the two documents in which these two clauses occur, Holt,
Magna Carta, 151 and 214, might have pointed out that the clauses are contradictory
althoughthe UnknownCharter,in the form in which it has come down to us, contains
both of them, since it reproducesa version of Henry I's coronation charter before
continuingwith John's promises. Ibid. at 296.
132. See notes 50 and 119 supraand text supraat 380 and this page.
is contracted.133When 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, concerningthe royalist earl Ranulf's charterto his men of Cheshire, which
was a local equivalentof MagnaCartaandprobablynecessarybecauseMagnaCartadid
not run within this franchise. Ibid. at 270-71. Whateverthe earl's attitudeto this point
in MagnaCarta,clause 11 of his local chartercontinuedwith the strongeridea in favour
of the heir's relatives. Indeed, the words used ('grace and assent') possibly have a
strongermeaningthan even the Articles' 'consilium' ('advice'): Neque domina neque
heres mariteturubi disparagetur,set per gratumet assensumgeneris sui maritetur-
'Neitherthe lady nor the heir should be marriedwhere she or he would be disparaged,
but she or he should be marriedby the grace and assent of her or his family' (my
translation).This is immediatelyfollowed by clause 12, statingthat the legacies of the
earl's men are to be respected,which might be interpretedto includetheirwishes about
such marriages:'Et eorum legata teneantur'. The charteris printed, summarisedand
discussed in JamesTait, ed., The Chartularyor Register of the Abbeyof St Werburgh,
Chester, i (ChethamSociety, New Series, lxxix) (Manchester,1920) 101-109. It may
have been issued not at the time of MagnaCartabut nearer(thoughnot quite as late as)
the time of the first reissue of Magna Carta(November 12, 1216), which completely
ignoredthe wishes of the relatives. See text infraat 400. Althoughthereare manyother
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 particularpoint, 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 completelyat the mercy of the men of Cheshirebut had some control
over the contents of his charter,for it states that he refused some of their demands.
As regardsthe general argumentof this article about clause 11 of MagnaCarta,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 Cheshirecharterconcernthem;compared
with the relevantclauses of MagnaCarta,these are relativelybrief clauses, and they are
directed at the lord ratherthan the guardian.The substanceof clauses 10 and 11 of
MagnaCartadoes not appearin the Cheshirecharter;nor does that of the rest of clause
35 of the Articles. Thus the Cheshire chartercannot be used to shed light on the
interpretationof these clauses in the way thatits clause 5 can be used to confirmHolt's
interpretationof clause 38 of MagnaCartaagainst that of McKechnie, supranote 2 at
370-75, and others. Holt, Magna Carta, 226; see note 15 supra. There are so many
differences, both in generaland in detail, between the contentsof the two chartersthat
argumentby analogy must be tentative. But it seems likely that clause 38 of Magna
Cartadoes mean that no one should be tried on a bailiff's unsupportedallegation, for
clause 5 of the Cheshirechartersays Et si vicecomes meus aut aliquis seruiens in curia
mea aliquemhominumsuoruminculpauerit,per thwertnicse defenderepoteritpropter
sireuestothquod reddunt,nisi secta eum sequatur-'And if my sheriff or any serjeant
in my courtshall accuse any one of my barons'men, he shall be able to defend himself
by absolute denial on account of the sireuestothwhich my barons pay, unless suit
follows him' (my translation;they are apparentlybeing 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,134clause 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 Jews139and in February 1213 he had set up a conciliatory investigation
134. As regardsthe UnknownCharter,one could arguethatthe differencebetween it and the

Articles may reflect not change through time but difference in aspirationsbetween
various groups of contemporaries.However, that the Unknown Charterpreceded the
Articlesby some weeks seems likely, and perhapsthe groupdominantat the time of the
UnknownCharterwas no longerthe dominantone at the time of the Articles. See Holt's
discussion, ibid. at 297-300.
135. Ibid. at 234 when read in conjunctionwith 269, 271-73 and 276. See also McKechnie,
supranote 2 at 140-41, 228 and 231.
138. Speakinggenerally of the changes in the 1216 reissue, McKechnie may have had this
clause in mind when he wrote 'The chief tyrantagainst whom the original provisions
hadbeen directedwas dead, andcertainformsof tyranny,it was confidentlyhoped, had
died with him'. McKechnie, supranote 2 at 140.
139. Holt, Magna Carta, 125, giving some examples.
into various points concerning Jewish property (but perhaps only in
Yorkshireand Lincolnshire).140However, we do not know that John had
been contravening the particularpoints 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 abandonedhis relaxationover Jewish debts very
soon, for in other financial spheres, notably the setting and collection of
fines,142we see him pressing very hard at this time, when the Bouvines
campaignwas in preparation.
The government of Henry III's minority also pressed hard, taking an
aggressive attitudeto the collection of Jewish debts.143However, it seems
that we do not know whetherit did so before the time of its second reissue
of MagnaCarta(in 1217), let alone its first. 44Nor does it seem to be known
whether, more specifically, it infringedthe principles of clause 11 at any
date. Probablyit did not. It is noticeablethat when, afterHenry's minority
had ended, it was evidently deemed necessary in the Statuteof Mertonof
1236145to reiteratethe principleof clause 10 (that a minor heir should be
free fromintereston his father'sdebt)no such reiterationseems to have been
requiredin the case of clause 11, althoughboth clauses had been droppedin
1216 and were absent from the 1225 reissue of Magna Carta which was
currentlyin effect. Whateverthe Jews or the governmenthad been up to as
regards interest during minorities, it seems likely that the recovery of
principalduringminorities146-byJews, the government,or othercreditors
-had not recently been causing the problemsindicatedby clause 11.
Perhaps in 1216, too, it was regarded as superfluous. After all,
Richardsonand Sayles147can say, speakingof 1215: 'The clauses concern-
ing the Jews do not appearto embody any new principle.The courtshad for
long protectedthe widow's dower against Jewish creditors.' Although the
140. Ibid. at 127.

141. Perhapsthe nearestwe can get to knowing whetherhe did so is the complicatedstory,
outlinedin Richardson,supranote 7 at 144, fromCuriaRegis Rolls, ix (London, 1952)
23-24, 153-54 and 371; x (London, 1949) 154, where it appearsthat John's action in
acceptinga fine to redeemlandgaged to a Jew contributedto the difficultiesof a widow
in recoveringher dower in the next reign. But this hardlyamountsto a contravention
of the points mentionedin clause 11. The fine, for which no date is given, was made
before RichardMarsh, perhapsas chancellor. He became chancellorin October 1214
but he had long been the king's trustedagent. Painter, supranote 38 at 65.
142. Holt, Magna Carta, 107-108.
143. Ibid. at 276-77.
144. The investigations into Jewish debts cited without date ibid. were conducted in the
Michaelmasterm of 1219.
145. See notes 16 and 17 supra.
146. For the likelihood that clause 11 referredparticularlyto minorities, see text supra at
375-76 and 377.
147. Richardsonand Sayles, supranote 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 Exchequer149of
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,152there 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,155those 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. CuriaRegis Rolls, i (London, 1922) 417 (1201); vii (London, 1935) 70-71 (1214) and
339 (1198). These three cases are also cited, but with a typographicalerror, in
Richardson,supranote 7 at 142 n.4. In the two cases of John's reign the propertywas
taken into the king's hands when the Jews failed to appear. In the case of 1198 the
recorded proceedings get no furtherthan the defendant's objection that the land in
questionwas 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., supranote 34 at 115. Thorne, 'What Magna CartaWas', supranote 16
at 12, on the other hand, speaking of the position in 1215 regardingdower and the
upkeep of minor offspring when the king collected Jewish debts, states that 'these
concessions had apparentlynot been customarybefore'.
150. Richardsonand Sayles, supranote 6 at 383.
151. However, see the cautionarywords in Holt, Magna Carta, 201, and the assessmentof
various clauses which follows them.
153. Cf. McKechnie, supranote 2 at 143: 'Manyof the originalprovisionswere 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 Morrowof the
Great Charter',Bulletin of the John Rylands Library, xxviii (1944) 426-28; Cheney,
'The Eve of Magna Carta', supranote 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 assumption158that 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.160He may well
have done so on matters raised in clause 11. His financial needs, which
certainly provoked other clauses of Magna Carta,161may 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 counterpartof the idea, which rests on the assumptionthat the clauses of
Magna Carta were attackingthe king, that the drafters'purpose was to write down
existing law in orderto 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 writtendown, would save the king's subjects
from arbitrary interpretationsor arbitrary exactions by the king's ministers'.
Richardsonand Sayles, supranote 6 at 383.
159. Whetherothercourts, in 1215, 1216, or at any otherdate, were correctingthese abuses,
or even recognising them as abuses, is difficult to know. See text supraat 388-89.
160. Ralph V. Turner, The King and His Courts: The Role of John and Henry III in the
Administrationof Justice, 1199-1240 (Ithaca, 1968) 268-76.
161. For example, clause 25, forbidding incrementson 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, acceptanceof these principlesseems likely to be the reason for their
non-appearancein 1236 when, in contrast, the principle of clause 10 was
reiterated.More tentatively, acceptanceof these principlesmay 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
superfluousin 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 superfluousbecause John
was no longer on the throne, for its principles were so patentlyjust that a
normalking would automaticallyrespectthem. Althoughthis interpretation
smacks of the nineteenth century chronicle-basedview of John as mon-
strously evil,162it seems likely to be true even if John perhapsdid respect
these principles after 1212, for his opponentsmight think in 1215 that he
could not be trustedto continue respectingthem.
Attributing the change to John's passing would not be valid if the
governmentof HenryIII's minorityfailed to respectthese principles:in that
case, clause 11 would be inconvenient for this government163 ratherthan
the
superfluous.Although government Henry of III's in
minority general, by
Michaelmas1219, anyway, took a strongline aboutJewish debts,l64we 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 requireacceptanceof the conventionalargument
thatthe clause was designed, and understood,to counterroyal 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
militarysupporthe needed. It is in this way thatJohn's disappearancefrom
the scene and his replacementby a baronial governmentmay have been
thoughtto make the retentionof clause 11 superfluous,and this explanation
of its omission, which interpretsit as a clause about guardians,is a strong
possibility.
162. V.H. Galbraith,Roger Wendoverand MatthewParis (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'stwo publicationsare reprintedwith the same paginationin his King and
Chroniclers, supranote 75.
164. For its attitudeto guardians,see note 196 infra and text infra at 400-401.
VII
That, however, is not how the makersof the 1216 reissue did not explain
their omission of clause 11. They say nothing about superfluousness,on
whateverbasis. They say ratherthe opposite: that they are postponingfor
furtherdiscussion165'quedamcapitula[which] in prioricartacontinebantur
que gravia et dubitabiliavidebantur'.166 Althoughwe should not automati-
cally believe what they say, these sound like questionablemattersrather
thansuperfluousmatters,an impressionconfirmedby whatfollows, for they
then go on to list their omissions by means of descriptivephrases:'scilicet
de scutagiis et auxiliis assidendis, de debitis Judeorumet aliorum, et de
libertate exeundi de regno, vel redeundi in regnum, et de forestis et
forestariis, warenniset warennariis,et de consuetudinibuscomitatuum,et
de ripariiset earumcustodibus'.167 We must rememberthatclause 10 of the
1215 charter,concerninginterest,was one of theiromissions, but clause 11
as well as clause 10 is no doubtmeantto be coveredby 'de debitisJudeorum
et aliorum'. It is significantthatnone of the otherdescriptivephraseswhich
they use fits unscrupulousguardians:all can be exclusively relatedto other
clauses of the 1215 charter,'68and, if Rothwell is to be believed,169no other
omitted clauses go unacknowledged, apart from those relating to the
political circumstances of summer 1215,170so presumably this one is
acknowledgedby the second phraseof the list. In 1216, it mustbe admitted,
165. Ea esse in respectu quousqueplenius consilium habuerimus-'these being deferred

until we have fuller counsel'.
166. 'Certainarticlescontainedin the formercharterwhich seemed importantyet doubtful.'
Printedin Holt, Magna Carta, 357 n.1; translatedin Rothwell, ed., supranote 12 at
331.
167. 'Namely On the assessing of scutageandaids, On debtsof Jews andothers, On freedom
to leave and returnto our kingdom, On forests and foresters, warrensand warreners,
On the customs of counties, and On river banks and their wardens.'
168. The relationshipsare conveniently listed in Rothwell, ed., supra note 12 at 331 nn.
7-12. See note 169 infra.
169. He here interprets'de debitis Judeorumet aliorum' as referringnot only to clauses 10
and 11 but also to clause 27, which is otherwiseunacknowledgedand which certainly
mentions debts (not specifically of Jews), but its main point concerns intestacy (not
involving guardians).Rothwellhere also interprets'de consuetudinibuscomitatuum'as
referringto clauses 25 and 45, which are otherwiseunacknowledged,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 ordersuggestedby 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 afterclause 48. The omissions are convenientlynoted in Rothwell,
ed., supranote 12 at 327-31.
those in charge of the reissue, or, at least, their officials and clerks,171
consideredclause 11, as well as clause 10, to be particularlyaboutJews and
to be sufficiently identified by this phrase, with no mention of guardians.
Indeed, it could be argued172 that the phrasewas 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,173whereasclause 11, like this phrase, mentionsother
creditorsalso.174
This last fact makes it less likely, though it does not rule out the
possibility, thatclause 11 was droppedby accidentalassociationwith clause
10, in that it, also, mentionedJews and it came immediatelyafterwardsin
a document whose conventional charter form minimised the distinction
between the clauses.'75 Although the principles of clause 11 might be so
patentlyjust that after John's demise it seemed superfluousto repeatthem,
clause 10 might well strike those who were trying to run the countryin the
king's name as questionable, for one can interpretthat clause to deny the
crownthe interestwhich had accumulatedbefore the originaldebtordied.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.177Indeed, even a
change of intentioncould have been incorporated,as in other clauses,178if
there was agreement on the intention among those responsible for the
reissue. It may be thatmost of the clauses droppedin 1216 before clause 49
of the 1215 charter179 were ones on which agreementof precise intention
could not be immediatelyobtained,ratherthanones which were intendedto
171. The attitudesof officials and clerks may have had considerableconsequencesnow just
as they may have had in 1215. See text supra at 384-85. As Holt puts it, 'the
administrativeand legal element which had presumably been responsible for the
original improvementof the Charter'sdraftingat Runnymedewas still at work ...'.
Magna Carta, 272.
172. This would be consistentwith Holt's emphasison the 'thoughtandcare' with which the
1216 reissue was compiled. Ibid.
173. This would probablynot 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 phraserefers to clause 27 see note 169 supra.
177. The clearest example is clause 9 of the 1215 charter(see text supraat 383-84), which
was amendedin various ways when it became clause 9 of the reissue. Thus, whereas
in 1215 the suretiesof a debt had, in certaincircumstances,been made responsiblefor
its repaymentif 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 charterprobablyfall into this category.
be completely and permanentlyeradicated.180Certainly, some, including

clause 10,181 re-emerged in different forms later;182the forest matters in
clauses 48 and 53, togetherwith those in clauses 44 and47, were elaborated
into a whole new charter,the Charterof the Forest of 1217.183
In 1216, however, if not in 1236,184it may have been the whole of clause
10, ratherthan merely the point about accumulatedinterest, which was
regardedas questionableand, perhaps,to be eradicated,so that it appeared
neitherin the 1217 reissue nor in the 1225 reissue. Clause 11 was similarly
omitted, whetherby the accidentalassociation185 made by clerks who were,
however, careful enough to pick up 'others' in their descriptivephrase, or
by the more or less deliberateassociation made by those in charge of the
1216 reissue. Given the care with which the reissue was in other respects
arranged,186 the latterseems more likely. There was alreadyfaintly evident
some change of attitudeto the two clauses between the time of the Articles
and thatof MagnaCarta.187By 1216, it seems, clause 11 was thoughtof, at
least, by those in chargeof the reissue, as partof 'the questionof the Jews',
althoughothercreditorscould continueto be lumpedin with them. As such
a question, one affecting, if only slightly,188the financialoperationsof the
new baronialgovernment,because of the link which had grown up between
the Jews and the crown whose affairs that governmentwas administering,
the whole matterof clauses 10 and 11 was droppedfromthe reissue to allow
time to think about other questions also, notably the question of the forest
180. Thattherewere some of the lattersortis generallyagreed. Forexample, F.M. Powicke,

King Henry III and the Lord Edward:The Communityof the Realm in the Thirteenth
Century(Oxford, 1947) 6-7, thoughperhapsthinkingalso of those clauses afterclause
48, says: 'Several clauses were omitted, with no intention of reconsideration'.This
appears also to be the implication of Holt, thinking primarilyof the clauses before
clause 49: 'Otherprovisions quietly vanished .... In the main the loyalist magnates
seem to have been concernedto restrictthe Charter'sintrusioninto the administrative
powers of the Crown'. Magna Carta, 271. This intention, in fact, seems to involve a
more permanentmatterthandoes one of the reasonsgiven by Powicke for the omission
of the clauses: 'because they were inconsistentwith the exercise of royal authorityin
time of war'. Powicke, King Henry III and the Lord Edward, 7.
182. The provisionsof clause 27 on intestacywere latercarriedout in practiceeven though
it was apparentlynot republished:Pollock and Maitland, supranote 48 at ii, 360.
183. Printed in The Statutes of the Realm, i, Chartersof liberties, 20-1; translatedin
Rothwell, ed., supranote 12 at 337-40.
185. If the associationwas accidental,it was evidently not noticed as a sufficientmistaketo
ensure the reinstatementof the clause in the reissues of 1217 and 1225.
186. See note 172 supra. 'It was more thana hasty political stratagem':Holt, Magna Carta,
272.
188. It would seem a mattermore of principle than of great practicalsubstance. See text
supraat 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 be
interesting to know what would have happened in 1216 had the charter not
been reorganised in 1215 but reproduced the whole of clause 35 of the
Articles as it stood. Would the clause (including the mention of Jews) have
been preserved in the 1216 reissue as clause 5 was, with certain changes,196
189. Clause 53 is only partlyon 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, supranote 113 at 67, errs in saying 'Of the chaptersof 1215 concernedwith
the forest, only chapter44 was retained'.
192. In a sense this was radical, for it concerned the extent of the forest. However, it
disafforestedonly John's additionsto the forest (andriverbanks), which were minimal.
Holt, Magna Carta, 236.
193. However, see the cautionarywords ibid. at 272.
194. ChristopherR. Cheney, Pope Innocent III and England (Stuttgart, 1976) 378-86.
Pandulf's position is not entirelyclear. He may have been defendingthe charteragainst
extremists. He had probablyleft Englandby the time the papal annulmentreachedthe
country.
195. See text supraat 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
interpretedas renderingthe clause more favourableto guardiansthan 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 charterhad been. See text infra at 400. Also, the general principlesof clause 5
were extended to ecclesiastical wardships.
197. The quoted phrasesare those of Holt, Magna Carta, 271.
198. Except, apparently,in respectof clauses 44 and 47 of the 1215 charter.See text supra
at 398-99.
199. See text supraat 386. In the case of the forest, however, one can see that more than a
matterof principlemight be involved. The forest administrationwas closely boundup
with castles, which were of such vital importanceat this juncture. CompareYoung,
supranote 113 at 51, with Powicke, supranote 180 at 1-3.
200. For earlierconflict between these two points of view, see text supraat 388-90.
202. Terramsuam totaminstauratam de caruciset waynagiis,secundumquod tempus
poteruntsustinere-'all his landstocked
waynagiiexigetet exitusterreracionabiliter
with ploughs and wainage such as the agriculturalseason demandsand the revenuesof
the estate can reasonablybear.' became terramsuam totam instauratamde carucis et
omnibusaliis rebus,ad minussecundumquodillamrecepit-'his landfully stocked
quite happy to see the level of stocking on the returnof the land to the heir
convenientlyslip out of the charteraltogetheras they omitteda clause which
could be consideredto be on the questionablematterof the Jews.
On the other hand, even if we are right in attributingto 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 alreadybeen
split in 1215. The continuoustext of the 1215 charter,203from which men
were presumablyworking in 1216, would indeed have made such splitting
easier than it had been in 1215, for a sentencecould be omittedwithoutany
realisationthat this constituteda splittingof what in the Articles had been a
separateclause. If no splittinghad taken place at either date we might find
clause 11 of MagnaCartabeing retained,if somewhatreluctantly,by those
in charge of the 1216 reissue, because it was considered mainly as being
'concernedwith feudal incidents';that is, with guardiansand the problems
of wardship.
VIII
In reality, what seems to have happenedis that by being split from its
context, which mentioned guardians,a matterwhich was primarilyabout
guardianswas, to some extent on purpose, made to look in Magna Carta
more specifically about the Jews and royal debt-collecting, with which it
was grouped; and by the time Magna Carta was reissued in 1216 those
responsible for this reissue fully accepted this new orientation, which,
again, they may have found convenient. In our assessmentof clause 11, it
would be foolish to ignore such things as the well-attestedpopularfeeling
against the Jews,204and John's attempt to gain political advantage by
relaxing the stringency with which he collected Jewish debts,205but we
should not allow these mattersto hide other clues. That the Jews and royal
debt-collectingwere not the original target is supportedby the mention of
'others'.206The Articles and Magna Cartawere aimed againstother groups
in society also,207and guardianscan be seen as one such group, capable of
harming others, to their own profit, in various ways, noted explicitly
elsewhere in these documentsas well as, implicitly, in clause 11 of Magna
with ploughs and all other things in at the least the measure he received.' Holt and
Rothwellconstrue'totam' differentlyin theirrespectivetranslationsof clause 5 in 1215
and 1216; cf. Rothwell, ed., supranote 12 at 317 n.l.
204. See text supraat 385.
Carta.208We are probablyjustified in seeing a tension in feudal society at
this time between an older traditionof the local power of feudal lords acting
as guardians in their own fiefs (perhaps visible in the 'reactionary'
weakeningof the provisionsagainstguardiansin successive documents)and
a newer, developing traditionof generally applicablelegal rules regulating
feudal society.209The particularrules in clause 11 were already probably
widely accepted.210Magna Carta needs to be studied in the context of
contemporarysocial and legal developmentsat all levels of feudal society.
Clause 11, this articlesuggests, has been consideredtoo exclusively as part
of a political attack by the great barons opposing John, despite acknowl-
edgmentof its superficiality.211Those who framedthe documents,including
the 1216 reissue, are largely responsible for this, whether they were
bureaucratsor politicians.212In particular,their reorganisationof clause 35
of the Articles213obscured,perhapsfor contemporariesandeven more so for
historians,the connectionbetween creditors(Jews or others)and unscrupu-
lous (or old-fashioned)guardians.

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

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American Society for Legal History

Jews, Guardians, and Magna Carta, Clause 11

Clause 11 of King John's Magna Cartahas not received as searchingan

R. MalcolmHoggis lecturerin Historyat St David'sUniversityCollege,Lampeter,

presentarticleto arguethatthe Jewish aspectof clause 11 has been too much

Clause 11 states: 'Et si quis moriatur,et debitumdebeatJudeis, uxor ejus

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

improvement largely devoid of constitutional principle or political signifi-

Unscrupulous guardians may have been trying to protect their own

46. It is truethatclause 11 of John's promisesin the UnknownCharter(printedibid. at 303;

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

lifestyle as perceived in contemporaryeyes, and this provisionin clause 11

58. Thisseemslikelyto be truedespitethe caveatnotedaboveaboutthe guardianship of

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

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

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

69. Holt, 'Magna Cartaand the Origin of StatuteLaw', supranote 9 at 494-95.

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

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

102. Ibid. at 495.

exaggerated.Neitherthe Articles nor MagnaCartasubstantiallyor compre-

107. See text supraat 374-75.

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

the new principleof regulatingthe Jews, who were as personallyconnected

is contracted.133When Magna Carta was drawn up there seem to have been

134. As regardsthe UnknownCharter,one could arguethatthe differencebetween it and the

140. Ibid. at 127.

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

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

162. V.H. Galbraith,Roger Wendoverand MatthewParis (Glasgow, 1944) 34-37; V.H.

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

be completely and permanentlyeradicated.180Certainly, some, including

180. Thattherewere some of the lattersortis generallyagreed. Forexample, F.M. Powicke,

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

208. See text supraat 375-77.

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