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CHAPTER 3 THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION SUMl\IARY The POSitiQl1 of the Crown The Ideas ofHubert Walter JOhll and fhe Pope The Greal Charter The Barons' Wars PAGE 20 21 22 22 26 Henry II was followed successively by his sons Richard I (1189-1199) and John (1199-1216), and his grandson Henry III (1216-1272). During these reigns every sort of strain was placed upon the administration and upon the infant common law. It is a great tribute to his work that they both survived. Richard was absent from the realm for almost the whole of his ten years' reign; John was involved in disastrous war abroad, civil war at home, insurrection, invasion and interdict. Henry III was a child of nine at his accession, with only his mother's bracelet for a crown, and yet a few great-hearted nobles, encouraged by the paternal interest of Pope Honorius III, spared the land most of the troubles which usually attended a minority in those days. And soon, by the middle of Henry's reign, one of his judges, Henry de Bracton, was already preparing material for an immense and detailed treatise on the common law beside which the little book of Glanvill would seem a mere pamphlet, and he tells us that the best cases are those in the earlier years of the reign-so flourishing was the law even in those troubled times. The secret is surely to be found in the permanence ofthe administration established by the Norman kings, which withstood all these shocks, grew, prospered, and finally (as every administration must) became the parent ofnew law, and of new legal machinery. THE POSITION OF THE CROWN Then, too, the Crown through all these disasters survived the attempts of certain interests which would have reduced its power to ineffectual limits; on the other hand, the opposite tendency of the Crown to use the powerful machinery of government to institute a tyranny was likewise frustrated. And so, on a broad view, both the oppressions and the rebellions of the period appear as efforts to find and maintain the just mean between private liberty and public order, while through it all, steadily and constantly, proceeds the growth of better and more expert judicial institutions, and the development of more and more rules of 20 THE GREAT CHARTERS 21 law, and their organisation into a coherent legal system which already was beginning to separate from the purely administrative machinery of the realm. By the time we reach the second halfofHenry III's reign the judiciary is already distinct from the administration and can stand aside while the national leaders in arms assert the necessity ofimposing restraint upon the speed and the direction of so dangerous an engine; while very soon, Parliament will appear with this as one ofits main duties. THE IDEAS OF HUBERT WALTER Of all the threads which run through this period, many of them highly important, we shall here follow only one-the struggle for the charters. The absence of Richard I had shown that it was possible for the machinery to work without a king to direct it, provided that there was a trusty minister to take his place. The great Archbishop Hubert Walter took this role, and assisted by the great council ofmagnates ruled well, retaining his power into the next reign. The brilliant outburst of literature, art, law and general culture which marked the dose of the twelfth century was accompanied by the development of an idea ofgovernment of which Hubert Walterl was the embodiment. " King John, in fact, felt with much truth that he was not his own master so long as his great minister was alive. Hubert Walter held the view, natural in an ecclesiastical statesman, that the kingship was an office invested with solemn duties. Royal power must be inseparable from the law. And the Archbishop's prestige was·so great that a word from him on the interpretation of the law could set aside the opinion of the King and his advisers!'· His successor, Stephen Langton, whom Pope Innocent III forced John to accept, was of the same school, holding that " loyalty was devotion, not to a man, but to a system of law and order which he believed to be a reflection of the law and order of the universe ".3 Conflict was inevitable between such statesmen and John, whose life had been spent in constant turbulence, intrigue and treachery, with complete indifference to .. those principles...

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