Part V (part 1 of 2)
MAGNA CARTA: ORIGINAL VERSIONS, PRINTED EDITIONS, AND COMMENTARIES.
I. Manuscripts of Magna Carta and Relative Documents.
The barons who had forced the Great Charter on King John were determined that its contents should be widely known and permanently preserved. It was not sufficient that the great seal should be formally impressed upon one parchment. Those who compelled John to submit were not content even with the execution of its terms in duplicate or in triplicate, but insisted that the great seal should be appended to many copies all of practically identical terms and of equal authority. These were to be distributed throughout the land, and to be preserved in important strongholds and among the archives of the chapters of cathedral churches.
I. The extant original versions. Of the many copies of the Charter authenticated under John’s great seal, four have escaped the destroying hand of time, and may still be examined by members of the public after nearly seven centuries have passed. These four records are:
(1) The British Museum Magna Carta, number one—formally cited as “Cotton, Charters XIII. 31A.” The recent history of this document is well known. It was found among the archives of Dover Castle in the seventeenth century; and not improbably it may have lain there for centuries before, possibly from a date not much later than that of its original execution; for the castle of Dover, like the Tower of London, was a natural place for the preservation of documents of national value. There it was discovered by Sir Edward Dering while warden of the castle, and by him it was presented to Sir Robert Cotton, accompanied by a letter dated 10th May, 1630.[285] It still forms an item in the collection preserved in the British Museum, which bears the name of the famous antiquary.
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Footnote 285:
This letter is also preserved in the British Museum, and cited as “Cotton, Julius, C. III. Fol. 191.”
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In the great fire of 23rd October, 1731, which attacked the Cottonian Library, this valuable Charter was seriously damaged and rendered in parts illegible, while the yellow wax of the seal was partially melted. It is possible that this accident has added somewhat to the prestige of this particular copy of Magna Carta, which, like the three others still extant, is written continuously, though with many contractions, in a neat, running, Norman hand. A special characteristic of this version is that some omissions seem to have been made in the body of the deed and to have been supplied at the foot of the parchment. These are five in number.[286] It is possible to regard them as corrections of clerical omissions due to carelessness or hurry in engrossing the deed; but the fact that one of the additions is distinctly in the King’s favour raises a strong presumption that they embodied additions made as afterthoughts to what had been originally dictated to the engrossing clerk, and that they were inserted at the King’s suggestion before he would adhibit the great seal.
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Footnote 286:
These are carefully noted among the variations described by the editors of the Charters of Liberties forming Part I. of the first volume of the Statutes of the Realm. These addenda are (1) at the end of c. 48, “per eosdem, ita quod nos hoc sciamus prius, vel justiciarius noster, si in Anglia non fuerimus,” providing that the King should receive intimation of all forest practices branded as “evil” before they are abrogated; (2) two small additions, near the beginning of c. 53, (a), “et eodem modo de justicia exhibenda,” and (b) “vel remansuris forestis”; (3) in c. 56, these four words, “in Anglia vel in Wallia”; and (4) in c. 61 the words “in perpetuum” after “gaudere.” In the 2nd British Museum MS. three of these addenda appear at the foot, viz. (1), (2_a_) and (2_b_); but the words of (3) and (4) are incorporated in the body of that MS.
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The importance of this document was recognized at a comparatively early date, and a facsimile prepared by John Pine, a well-known engraver of the day, some eighteen months after the great fire. The engraving bears a certificate dated 9th May, 1733, narrating that the copy is founded on the original, which had been shrivelled up by the heat; but that where two holes had been burned, the obliterated words had been replaced from the other version (to be immediately described), also preserved in the Cottonian collection.
(2) The British Museum Magna Carta, number two—formally cited as “Cotton, Augustus, II. 106.” The early history of this document is unknown, but sometime in the seventeenth century it came into the possession of Mr. Humphrey Wyems, and by him it was presented to Sir Robert Cotton on 1st January, 1628–9. Unlike the other Cottonian copy, this one is happily in an excellent state of preservation; but there is no trace left of any seal.[287] Three of the five addenda inserted at the foot of the copy previously described are found in a similar position here; but the substance of the two others is included in the body of the deed. On the left-hand margin, titles intended to be descriptive of several chapters occur in a later hand.[288] Thus for the preservation of two original copies of the national charter of liberties the nation is indebted to Sir Robert Cotton, but for whose antiquarian zeal they might both have been lost. Apparently, however, a story told by several authors[289] as to the humiliating fate which threatened the original Magna Carta must be rejected. Sir Robert, it is said, discovered “the palladium of English liberties” in the hands of his tailor at the critical moment when the scissors were about to transform it into shapes for a suit of clothes. This is undoubtedly a fable, since both manuscripts of Magna Carta in the Cottonian collection are otherwise accounted for.
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Footnote 287:
“The fold and label are now cut off, though it is said once to have had slits in it for two seals, for which it is almost impossible to account; but Dr. Thomas Smith, in his Preface to the Cottonian Catalogue, Oxford, 1695, folio, states that they were those of the barons” (Thomson, Magna Charta, 425).
Footnote 288:
Reproductions of this copy are sold at the British Museum at 2s. 6d. each.
Footnote 289:
See Isaac D’Israeli, Curiosities of Literature, I. 18, and Thomson, Magna Charta, 424.
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(3) The Lincoln Magna Carta. This copy is under the custody of the Dean and Chapter of the Cathedral, where it has undoubtedly lain for many centuries. It has been suggested that Bishop Hugh of Lincoln, canonized by the Roman Church, whose name appears in the list of magnates consenting to John’s grant, may have brought it with him from Runnymede on his return to Lincoln. The word “Lincolnia” is endorsed in a later hand in two places at the back of the document on folds of the parchment. It has no corrections or additions inserted at the foot, but embodies in their proper places all those which occurred in the versions already discussed. Further, it is executed with more flourishes and in a more finished manner than these, and the inference is that it took longer to engross. The Record Commissioners in preparing the Statutes of the Realm considered this version as of superior authority to any of the others and have accordingly chosen it as the copy for their engraving of Magna Carta published in 1810 in that valuable work, and also in the first volume of their edition of Rymer’s Foedera in 1816.[290]
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Footnote 290:
The engraving was executed to their order by James Basire.
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(4) The Salisbury Magna Carta—preserved in the archives of the Cathedral there. The early history of this manuscript has not been traced, but its existence was known at the close of the seventeenth century.[291] Sir William Blackstone, in April, 1759,[292] instituted a search for it, but without success—his inquiries being met with the statement that it had been lost some thirty years before, during the execution of repairs in the Cathedral library. As its disappearance had really taken place during the tenure of the see by Gilbert Burnet, whose antiquarian interests were well known, his political adversaries accused him of appropriating it—an undoubted calumny, yet one to which some colour was lent by facts to be hereafter explained. The document had not been re-discovered in 1800 when the royal commission published its report of the result of its inquiries for national records.[293] Two sub-commissioners visited Salisbury in 1806 in search of it, but obtained no satisfaction. It seems, however, to have been re-discovered within the next few years, since it is mentioned in a book published in 1814,[294] and it is now exhibited to the public by order of the Dean and Chapter of Salisbury Cathedral. It resembles the Lincoln copy both in its beautiful leisurely writing and also in the absence of additions at the bottom of the parchment.[295]
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Footnote 291:
See James Tyrrell, History of England, Vol. II. 821 (1697-1704).
Footnote 292:
Blackstone, Great Charter, p. xvii.
Footnote 293:
See Report (1800), p. 341, containing the Return by the Chapter Clerk of the Cathedral Church of Salisbury, dated 15th May, 1800.
Footnote 294:
Dodsworth, Historical Account of the Cathedral, 202.
Footnote 295:
It is unnecessary to treat in detail of the copies of the charter not authenticated by John’s Great Seal, though some of these are of great value as secondary authorities. The four most important are (a) a copy appearing in the Register of Gloucester Abbey, (b) the Harleian MSS., British Museum No. 746 (which also contains the names of the twenty-five Executors in a hand probably of the reign of Edward I.), (c) in the Red Book of the Exchequer. There is also (d) an early French version, printed in D’Achery, Spicilegium, Vol. XII. p. 573, together with the writ of 27th September addressed to the Sheriff of Hampshire. See Blackstone, Great Charter, p. xviii., and Thomson, Magna Charta, pp. 428-430.
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II. Comparison of the Originals. Prior to the publication of Sir William Blackstone’s great work, extraordinary confusion seems to have prevailed concerning the various Charters of Liberties. Not only was John’s Magna Carta confused with the various re-issues by Henry; but these latter were known only from an official copy of the Charter of 1225 contained in the confirming statute of the twenty-eighth year of the reign of Edward I., known as an “Inspeximus,” because of the opening word of the King’s declaration that he had seen the document of which he gave a copy. Neither Madox[296] nor Brady[297] was aware of the existence of any one of the four originals; and no mention is made of them in the first edition of Rymer’s Foedera, which appeared in 1704. Mr. Tyrrell indeed seems to have known of the second original copy in the British Museum and also of the Salisbury version.[298] Mr. Care[299] showed no clear knowledge of the various manuscripts, though he mentioned the existence of several. Even Sir William Blackstone in 1759 collated only the two Cottonian copies, since he failed to find that of Salisbury, and was unaware of the existence of the Lincoln manuscript.[300]
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Footnote 296:
Thomas Madox, Firma Burgi (1726). On p. 45, Madox refers only to the Inspeximus of Edward I.
Footnote 297:
Robert Brady, Complete History of England, p. 126 of Appendix to Vol. I. (1685), takes his text of the Charter from Matthew Paris, “compared with the manuscript found in Bennet College Library.”
Footnote 298:
James Tyrrell, History of England (1697-1704). In p. 9 of Appendix to Vol. II. p. 821, Tyrrell prints a text of John’s Charter founded on that of M. Paris, collated with those two originals.
Footnote 299:
Henry Care, English Liberties in the Freeborn subjects’ inheritance; containing Magna Charta, etc. (1719), p. 5. The first edition, with a somewhat different title, is dated 1691.
Footnote 300:
Strangely enough, Sir Thomas Duffus Hardy, so recently as 1837, in publishing his Rotuli Chartarum (Introduction, p. ii. note 5) declared that no original of John’s Charter existed. Many copies, he knew, had been "made and deposited, for the sake of perpetuation, in all the principal religious houses in the kingdom. However, notwithstanding all the care taken by multiplication of copies, it is singular that no contemporary copy of King John’s Magna Carta has yet been found." The Lincoln MS. he dismissed as “certainly not of so early a date,” while he confuses the only one of the British Museum MSS. known to him with the Articles of the Barons. He further reasserts the fallacy, so clearly exposed by Blackstone eighty years earlier, that John had issued a separate Carta de Foresta.
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As these four versions are practically identical in their substance—the variations being merely in the use of contractions or in other verbal changes of a trivial character—no important question seems to be involved in the discussion as to whether any one of them has greater value than the others. The Record Commissioners considered that the Lincoln copy was the first to be completed (and therefore that it possessed special authority), because, unlike the two Cottonian copies, it contained no insertions at the foot of the instrument. Yet it seems more plausible to argue that this very immunity from clerical errors, or from additions made after engrossment, proves that it was of later and less hurried execution than the others, and therefore of less authority, if any distinction is permissible. Mr. Thomson has much ground for his contention in speaking of the fire-marked version in the British Museum that “the same circumstances may probably be a proof of its superior antiquity, as having been the first which was actually drawn into form and sealed on Runnymede, the original whence all the most perfect copies were taken.”[301]
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Footnote 301:
Thomson, Magna Charta, 422.
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In all printed texts of Magna Carta, the contents are divided into a preamble and sixty-three chapters, and each chapter is numbered and treated in a separate paragraph by itself. There is no warrant for this in any one of the four originals, all of which run straight on from beginning to end, like other feudal charters, and contain no numbers or other indication where one provision ends and another begins. Strictly speaking, Magna Carta has thus no chapters: these are a modern invention, made for convenience of reference.
III. The Articles of the Barons. Of hardly inferior historical interest to these four original copies of the Great Charter is the parchment which contains the heads of the agreement made between John and the rebels on 15th June, 1215, from which the Charter was afterwards expanded. The parchment containing these heads, known as the Articles of the Barons, is now in the British Museum, cited officially as “Donation MSS. 4838.” The seven centuries which have passed over it have left surprisingly few traces; it is quite legible throughout, and still bears the impression of John’s great seal in brown wax. It is probable that this document may have passed with other English records into the hands of Prince Louis during the civil war which followed close on the transaction at Runnymede; that it was handed over to the Regent William Marshal in terms of the Treaty of Lambeth concluded in September, 1217; and that thereafter it was deposited in Lambeth Palace, where it remained until the middle of the seventeenth century. Archbishop Laud seems to have been aware of its historical interest, as he placed it among the more precious documents in his keeping. When threatened with impeachment by the Long Parliament, he thought it prudent to set his papers in order; and on 18th December, 1640, he dispatched for that purpose to his episcopal palace, his friend Dr. John Warner, Bishop of Rochester.
There was indeed no time to lose; a few hours later, Laud was committed to the custody of Black-Rod, and an official messenger was sent by the House of Lords to seal up his papers. Bishop Warner had, however, escaped with the Articles of the Barons before this messenger arrived; he kept it till he died, and at his death it passed to one of his executors named Lee, and from him to his son Colonel Lee, who presented it to Gilbert Burnet, afterwards Bishop of Salisbury and author of the famous History of His Own Time. When the Salisbury Magna Carta disappeared, Burnet was suspected of appropriating it to his own uses. The grounds which gave some apparent weight to the misrepresentations of his political opponents were that special facilities had been granted to him to search public records in the prosecution of his historical labours, and that as matter of fact he actually had in his possession—quite lawfully, as we now know—the Articles of the Barons, which was confused by the carelessness of early historians with Magna Carta itself. The calumny was so widely spread that Burnet thought it necessary formally to refute it, explaining that he had received the Articles as a gift from Colonel Lee. “So it is now in my hands, and it came very fairly to me.”
Bishop Burnet left it as a legacy to his son Sir Thomas Burnet; and on his death it passed to his executor David Mitchell, whose permission to print it Blackstone obtained in 1759. Shortly thereafter it was purchased from Mr. Mitchell’s daughter by another great historian, Philip, second Earl of Stanhope, and by him it was presented to the British Museum in 1769. It is now exhibited to the public along with the two Cottonian copies of Magna Carta. The Record Commissioners have reproduced it in facsimile in Statutes of the Realm in 1810, and also in the New Rymer in 1816.[302]
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Footnote 302:
Reproductions of it, as well as of the second Cottonian version of the Charter, are sold by the authorities of the British Museum at the price of 2s. 6d.
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The document begins with this headline: “Ista sunt Capitula quae Barones petunt et dominus Rex concedit.” Then the articles follow in 49 paragraphs of varying length, separate, but unnumbered, each new chapter (unlike the chapters of Magna Carta, which run straight on as befits its character as a charter) beginning a new line. The numbers which invariably appear in all printed editions have no warrant in the original.
A blank space sufficient for two lines of writing occurs between paragraphs 48 and 49, indicating perhaps that the last chapter, which contains the revolutionary provision for the appointment of the twenty-five Executors, had been added as an after-thought. Chapters 45 and 46 are connected by a rude bracket, and a clause is added in the same hand as the rest, but more rapidly, modifying the provisions of both in the King’s favour. This, at least, is clearly an after-thought.[303]
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Footnote 303:
Cf. supra, p. 47, and Blackstone, Great Charter, xvii.
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IV. The so-called “unknown Charter of Liberties.” Among the French archives there is preserved the copy of what purports to be a charter granted by King John, but irregular in its form. This document is preserved among the Archives du Royaume in the Section Historique and numbered J. 655.[304] A copy of this copy was discovered at the Record Office in London by Mr. J. Horace Round in 1893, previous to which date it seems to have been practically unknown to English historians, although it had been printed by a French writer thirty years earlier.[305] Mr. Round communicated his discovery of this “unknown charter of liberties” to the English Historical Review, in the pages of which there ensued a discussion as to its nature and validity, inaugurated by him. Three theories were suggested: (a) Mr. Round maintained that the document was a copy, in a mangled form perhaps, of a charter actually granted in the year 1213 by King John to the northern barons, containing concessions which they had agreed to accept in satisfaction of their claims.[306] (b) Mr. Prothero preferred to view it, not as an actually executed charter, given and accepted in settlement of the various claims in dispute, but rather as an abortive proposal made by the King early in 1215 and rejected by the barons.[307] (c) Mr. Hubert Hall dismissed the document as a forgery, and described it as "a coronation charter attributed to John by a French scribe in the second decade of the thirteenth century"—probably between November, 1216, and March, 1217, when King Philip desired to prove that John had committed perjury by breaking his promises, and had thereby forfeited his right to the Crown of England.[308]
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Footnote 304:
See the account given by Mr. Hubert Hall, English Historical Review, IX. 326.
Footnote 305:
Alexandre Teulet, Layettes du Trésor, I. p. 423 (1863).
Footnote 306:
Engl. Hist. Rev., VIII. 288-294.
Footnote 307:
Ibid., IX. 117-121.
Footnote 308:
Ibid., IX. 326-335.
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Mr. Hall describes the method of procedure adopted by the compiler of this supposed forgery. Placing in front of him copies of Henry I.’s Charter of Liberties and of Henry III.’s charters issued in 1216-17, he proceeded to select from these sources whatever suited his purpose, and thereafter “either by design or carelessness, or ignorance of English forms, he altered the wording of both his originals so as to produce the effect of a paraphrase interspersed with archaisms.” This extremely ingenious theory is not entirely convincing. Not to insist on the number of unproved inferences on which it is based, it seems to have one grave defect—it ignores the absurdity of attempting to obtain credence for such a clumsy composition, especially when it was well known that John had never granted a coronation charter at all. Even if a skilful forger could have utilized the document as the basis for a completed charter, this would still have required the impress of John’s great seal to give it validity. Such an imposture could not be seriously intended to impose on any one.
A fourth theory may be suggested very tentatively, namely, that the document in question is a copy of the actual schedule drawn up by the barons previous to 27th April, 1215. That such a schedule existed we know from the express declaration of Roger of Wendover,[309] who informs us that it was sent to the King with the demand that his seal should be forthwith placed to it, under threat of civil war. From this, it is safe to infer that the schedule, as it left the barons’ hands, was ready for execution; but lack of experience in drawing up Crown charters would prevent them from producing an entirely regular instrument. They would assuredly take as their model the charter of Henry I., which had helped to give definiteness of aim to all their efforts. It would be necessary, however, to bring this up to date, by additions which we might a priori expect to resemble the provisions afterwards adopted with more elaboration in the agreement made at Runnymede. This schedule, then, rapidly thrown together, would be likely to contain many of the characteristics actually discovered by Mr. Hall in the document under discussion. Such an identification of the “unknown Charter of Liberties” with the schedule of 27th April, 1215, would explain all the features emphasized by Mr. Hall—the archaisms, the erroneous style, and the employment, first of the third person singular, and then of the first person singular, instead of using throughout the first person plural invariably used by John. It would also explain why the first half of the parchment on which the “unknown charter” is written, contains a copy of Henry I.’s charter, and why the two possess so many features in common.
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Footnote 309:
R. Wendover, III. 298, and cf. supra, p. 40.
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It would clearly be inadvisable to found any conclusions upon the terms of a document, the nature and authenticity of which form the subject of so many rival theories; but even if further investigation proves it to be a forgery, a forgery of contemporary date may throw light on otherwise obscure passages in genuine charters. One or two instances of this will be found in the sequel.
II. Previous Editions and Commentaries.
Every general history of England and almost every book which has ever appeared on English law has had something to say by way of commentary on Magna Carta. It is perhaps for this very reason that exceedingly few treatises have been devoted exclusively to its elucidation. While edition after edition of the text of the Charter, or of its re-issues, have appeared, few of these have been accompanied by explanations however brief. The paucity of attempts to explain the meaning of the Charter is almost more remarkable than the frequency with which the text has been reproduced. Magna Carta is a document often printed, but seldom explained.
I. Printed Editions of the Text of Magna Carta. Previous to 1759 even the best informed writers on English history laboured under much confusion in regard to the various charters of liberties. Few of them seem to have been aware that fundamental differences existed between the original charter granted by John and the re-issues of Henry III. Much of the blame for this confusion must be borne by Roger of Wendover, who, in his account of the transactions at Runnymede, incorporated, in place of John’s Charter, the text of the two charters granted by Henry.[310]
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Footnote 310:
R. Wendover, III. 302-318.
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The early historians were content to rely either on this version or on that contained in the Inspeximus of Edward I. Thus, in all early printed collections of statutes, the text which professes to represent the original Charter follows in reality the words of Henry’s third re-issue. The very earliest printed edition of Magna Carta seems to have been that published on 9th October, 1499, by Richard Pynson, the King’s printer,[311] and a contemporary of Wynkyn de Worde. This was not, of course, John’s Charter, but followed Edward’s Inspeximus of Henry’s Charter of 1225.
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Footnote 311:
This date is given by Bémont, Chartes, lxxi., but Robert Watt in his Bibliotheca Britannica, Thomson, Magna Charta, 450, and Lowndes, Bibliographer’s Manual, 1449, all give the date of the earliest edition as 1514. Bémont, lxxi., and Thomson, 450–460, Watt, and Lowndes furnish details of the various editions of Pynson, Redman, Berthelet, Tottel, Marshe, and Wight, from 1499 to 1618. All of these are now superseded by the Statutes of the Realm, published by the Record Commission in 1810.
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Since the middle of the eighteenth century, many editions of the text of John’s Great Charter have been published, either alone or along with the text of the various re-issues of the reign of Henry III.; but it seems unnecessary to mention more than four of these.
(1) In 1759 appeared Sir William Blackstone’s scholarly work entitled The Great Charter and The Charter of the Forest, containing accurate texts of all the important issues of the Charters of Liberties carefully prepared from the original manuscripts so far as these were known to him.[312]
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Footnote 312:
The substance of this admirable edition, now unhappily scarce, has been reproduced in the same author’s Tracts (1762).
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(2) In some respects the Record Commissioners have improved even on Blackstone’s work in their edition of the Statutes of the Realm, published in 1810. A special section of the volume is devoted to Charters of Liberties, where not only the grants of John and Henry III., but also the charters which led up to them, and their subsequent confirmations, have received exhaustive treatment.
(3) A carefully revised text, Magna Carta regis Johannis, was published by Dr. Stubbs in 1868; and the various charters are also to be found, arranged in chronological order, in his well-known volume, first published in 1870, entitled Select Charters and other illustrations of English Constitutional History, a convenient collection easily accessible to all students of law and history.
(4) For the continuous study of the sequence of charters, the best book of reference is Chartes de Libertés Anglaises by M. Charles Bémont published in 1892, in the pages of which the various editions of John’s and Henry’s charters will be found in a form convenient for comparison with each other, and with previous and succeeding documents.
II. Commentaries and Treatises. It is doubtful whether any good purpose would be served by the preparation of a list of all the books which contain casual references to Magna Carta or to its provisions; and it is clear that the task would be an extremely burdensome one. There is no difficulty, however, in naming the few treatises of outstanding merit which have been exclusively or mainly devoted to the exposition of the Great Charter. Of these only nine require special mention.
(1) The mysterious medieval lawbook known as the Mirror of Justices contains a chapter upon Magna Carta which has some claims to rank as a commentary, although it represents the opinions of a political pamphleteer rather than those of an unbiassed judge. The date of this treatise is still the subject of dispute. It has been usual to place it not earlier than the years 1307-27, mainly because it makes mention of “Edward II.” Prof. Maitland, however, dates it earlier, maintaining on general grounds that it was “written very soon after 1285, and probably before 1290.”[313] He explains the reference to “Edward II.” as applying to the monarch now generally known in England as Edward I., but sometimes in his own reign known as Edward II., to distinguish him from an earlier Edward, still enshrined in the popular imagination, namely, Edward Confessor. Mr. Maitland is not disposed to treat this work of an unknown author too seriously, and warns students against “his ignorance, political bias, and deliberate lies.”[314]
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Footnote 313:
See The Mirror of Justices (edited for the Selden Society by Prof. Maitland), Introd., xxiii. to xxiv.
Footnote 314:
Ibid., xxxvii. Cf. xlviii.
(2) Dismissing the Mirror, then, as a dangerous and possibly disingenuous guide, the earliest serious commentary known to exist is that of Sir Edward Coke, formerly Lord Chief Justice. This elaborate treatise, forming the second of Coke’s four Institutes, was published in 1642 under direction of the Long Parliament, the House of Commons having given the order on 12th May, 1641.[315]
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Footnote 315:
See Dictionary of National Biography, XI. 243.
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Although this commentary, like everything written by Coke, was long accepted as a work of great value, its method is in reality entirely uncritical and unhistorical. The great lawyer reads into Magna Carta the entire body of the common law of the seventeenth century of which he was admittedly a master. He seems almost unconscious of the great changes accomplished by the experience and vicissitudes of the four eventful centuries which had elapsed since the Charter had been originally granted. The various clauses of Magna Carta are thus merely occasions for expounding the law as it stood, not at the beginning of the thirteenth century, but in his own day. In the skilful hands of Sir Edward, the Great Charter is made to attack the abuses of James or Charles, rather than those of John or Henry, which its framers had in view. In expounding the judicium parium, for example, he carefully explains many minute details of procedure before the Court of the Lord High Steward, and describes elaborately the nature of the warrants to be issued prior to the arrest of any one by the Crown; while, in the clause of Henry’s Charter which secures an open door to foreign merchants in England “unless publicly prohibited,” he discovers a declaration that Parliament shall have the sole power to issue such prohibitions, forgetful that the regulation of trade was an exclusive prerogative of the Crown with which Parliament had no right to interfere for many centuries subsequent to the reign of Henry III.
(3) In 1680 Mr. Edward Cooke, barrister, published a small volume entitled Magna Charta made in the ninth year of King Henry III. and confirmed by King Edward I. in the twenty-eighth year of his reign. This contained a translation of Henry’s Magna Carta with short explanatory notes founded mainly on the commentary of Sir Edward Coke. In his Preface, Mr. Cooke declared that his object was to make the Great Charter more accessible to the public at large, since, as he said, “I am confident, scarce one of a hundred of the common people, know what it is.”
(4) Sir William Blackstone’s Introduction to his edition of the charters, published in 1759, as already mentioned, contains valuable information as to the documents he edits; but he explicitly disclaims all intention of writing a Commentary. He is careful to state “that it is not in his present intention, nor (he fears) within the reach of his abilities, to give a full and explanatory comment on the matters contained in these charters.”[316]
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Footnote 316:
Introduction, p. ii.
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(5) The Hon. Daines Barrington published in 1766 his Observations upon the Statutes from Magna Charta to 21 James I. This book contains some notes on the Charter also founded chiefly upon Coke’s Second Institute; his original contributions are not of outstanding value.
(6) In 1772 Prof. Francis Stoughton Sullivan gave to the public his course of lectures previously delivered in the University of Dublin under the title An Historical Treatise on the Feudal Law, with a Commentary on Magna Charta. The author’s own words give a sufficiently accurate conception of its scope and value: “I shall therefore proceed briefly to speak to Magna Charta, and in so doing shall omit almost all that relates to the feudal tenures, which makes the greatest part of it, and confine myself to that which is now law.”[317]
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Footnote 317:
See p. 375 of the work cited.
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(7) Mr. John Reeves’ invaluable History of English Law, the first edition of which appeared in 1783-84, marked the commencement of a new epoch in the scientific study of the genesis of English law. Treating incidentally of Magna Carta, he shows wonderful insight into the real purport of many of its provisions, but the state of historical knowledge when he wrote rendered many serious errors inevitable.
(8) In 1829, Mr. Richard Thomson published an elaborate edition of the charters combined with a commentary which contains much useful information, but makes no serious attempt to supplement the unhistorical explanations of Sir Edward Coke by the results of more recent investigations in the provinces of law and history. His work is a storehouse of information which must, however, be used with caution.
(9) In many respects, the most valuable contribution yet made to the elucidation of the Great Charter is that contained in M. Charles Bémont’s preface to his Chartes des Libertés Anglaises, published in 1892. Although he has subjected himself to the severe restraints imposed by the slender size of his volume and by a rigid desire to state only facts of an undisputed nature, leaving theories strictly alone; he has, nevertheless, done much to help forward the study of the charters. In particular he has performed an important service by insisting upon the close mutual connection between the various Charters of Liberties, from that of Henry I. down to the confirmations of Edward I., and of subsequent kings. It is doubtful, however, whether by this very insistence upon the gradual process of development which may be traced in this long series, he does not lay himself open to the misconception that he takes too narrow a view of the scope and relations of the Charter. Magna Carta’s points of contact with the past and future history of English liberties and English laws and institutions must not be narrowed down to those occurring in one straight line. Its antecedents must not be looked for exclusively among documents couched in the form of charters, nor its results merely in their subsequent confirmations. It is impossible to understand it aright, except in close relation to all the varied aspects of the national life and the national development. Every Act appearing on the Statute Rolls is, in a sense, an Act amending Magna Carta; while such enactments as the Statute of Marlborough and the Statute of Westminster I. have as intimate a connection with John’s Great Charter as the Confirmatio Cartarum or the Articuli super Cartas have. This is a truth which M. Bémont undoubtedly recognizes, though the scheme of his book led him rather to emphasize another and, at first sight, contradictory aspect of his subject. His object was not to explain the numerous ways in which the Charters of Liberties are entwined with the whole of English history, but merely to furnish a basis for the accurate study of one of their most important features. His book is indispensable, but is not intended to form, in any sense, a commentary on Magna Carta.
It would thus appear that only two serious attempts have been made to produce treatises forming, explicitly and exclusively, commentaries on the Great Charter, namely the Second Institute of Coke and the laborious and useful work of Mr. Richard Thomson. Since Mr. Thomson’s Magna Charta appeared, three-quarters of a century have passed, marking an enormous advance in historical and legal science; yet the results of modern research, so capable of throwing light on the subject-matter of the Great Charter, have never been systematically brought to bear upon it. Dr. Stubbs, from whom such a work would have been especially welcome, contented himself with giving a paraphrase or abstract of the Charter, rendering into English equivalents as literally as possible the actual words of his Latin text—a cautious course, which cannot lead his disciples astray, but leaves them to the guidance of their own ignorance rather than of his knowledge. The reason given by Dr. Stubbs for keeping silence is rather the excess than the absence of information. “The whole of the constitutional history of England,” he tells us, “is little more than a commentary on Magna Carta.”[318] It is for this reason, presumably, that he refrains from all explanations and confines himself to an abstract of its main provisions. While thus many invaluable hints may be obtained from the pages of the three volumes of his history, and from his other works, Dr. Stubbs has not in any of his published writings contributed anything of the nature of a direct commentary upon John’s Great Charter. In this policy, he has been followed by the members of the great modern school of English historians of which he is the founder.[319]
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Footnote 318:
See Const. Hist., I. 572, and cf. Select Charters, 296.
Footnote 319:
One of the most brilliant members of that school, Mr. Prothero, whose power of rendering difficult subjects both lucid and interesting would specially have qualified him for the task of explaining Magna Carta, declines the task partly upon the ground that it would be impossible "to throw any new light on a subject exhausted by the ablest writers."—S. de Montfort, p. 14.
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Many valuable hints may be obtained from other writers such as Dr. Gneist, Sir Edward Creasy, Mr. Taswell Langmead, Dr. Hannis Taylor, Miss Norgate, and Sir James Ramsay,[320] but their efforts to explain the meaning of the Great Charter take the form of disconnected notes, rather than of exhaustive commentaries.[321]
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Footnote 320:
The works of these and other authors are mentioned in the Appendix.
Footnote 321:
It is unnecessary to do more than mention A Historical Treatise on Magna Charta by Mr. Boyd C. Barrington, of the Philadelphia Bar (1899), of which the author says (p. ii.): “No claim is made for originality, but solely for research, which has been exhaustive in every line I can pursue.” It is dismissed by his distinguished fellow-countryman, Dr. Gross (Sources and Literature of English History, p. 348), as “of little value.”
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TEXT, TRANSLATION, AND COMMENTARY.
MAGNA CARTA.
PREAMBLE.[322]
Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariis, vicecomitibus, prepositis, ministris et omnibus ballivis et fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute anime nostre et omnium antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte Ecclesie, et emendacionem regni nostri, per consilium venerabilium patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris, fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie, Willelmi comitis Warennie, Willelmi comitis Arundellie, Alani de Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla, Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii Hugonis et aliorum fidelium nostrorum.
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Footnote 322:
The division of Magna Carta into a preamble and sixty-three chapters is a modern device, for convenience of reference, for which there is no warrant in the Charter itself. Cf. supra, 200. No title or heading precedes the substance of the deed in any one of the four known originals, but on the back of the Lincoln one (cf. supra, 197) these words are endorsed;—“Concordia inter Regem Johannem et Barones pro concessione libertatum ecclesie et regni Anglie.” The form of the document is discussed supra, 123-9. The text is taken from that issued by the Trustees of the British Museum founded on the Cottonian version No. 2. Cf. supra, 196.
John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greeting. Know that, looking to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honour of God and the advancement of holy Church, and for the reform of our realm, [we have granted as underwritten][323] by advice of our venerable fathers, Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman Church, Henry archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry, Benedict of Rochester, bishops; of master Pandulf, subdeacon and member of the household of our lord the Pope, of brother Aymeric (master of the Knights of the Temple in England), and of the illustrious men,[324] William Marshall, earl of Pembroke, William, earl of Salisbury, William, earl Warenne, William, earl of Arundel, Alan of Galloway, (constable of Scotland), Waren Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip of Albini, Robert of Ropesle, John Marshall, John Fitz Hugh, and others, our liegemen.
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Footnote 323:
The sentence is concluded in chapter one (see infra)—the usual division, here followed, being a purely arbitrary one.
Footnote 324:
The phrase “nobiles viri” was not used here in any technical sense; the modern conception of a distinct class of “noblemen” did not take shape until long after 1215. Cf. what is said of “peerage” under cc. 14 and 39.
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The Great Charter of John opens, in the form common to all royal charters of the period, with a greeting from the sovereign to his magnates, his officials, and his faithful subjects, and announces, in the pious legal formula used by impious and pious kings alike, that he had made certain grants by the advice of those counsellors whom he names. Three features of this preamble call for comment.
I. The King’s Title. Some points of interest are suggested by the form of the royal style adopted by John, which is connected by an unbroken thread of development with that of William I. on the one hand, and of His Majesty, Edward VII., on the other. John’s assumption of the royal plural “Sciatis Nos” reads, in the light of subsequent history, as a tribute to his arrogance rather than to his greatness, when compared with the humbler first person singular consistently used by his more distinguished father. In this particular, however, Richard, not John, had been the innovator on the usage of Henry II.[325] For a further alteration in the royal style John was alone responsible. To the titles borne by his father and brother, John invariably added that of “lord of Ireland,” a reminiscence of his youth. When the wide territories of Henry II., had been distributed among his elder sons, the young John (hence known as “John Lackland”) was left without a heritage, until his father bestowed on him the island of Ireland, recently appropriated; and this brought with it the right to style himself “dominus Hibernie.” This title of his younger days was not unnaturally retained by him after he had outlived all his brothers and inherited their wide lands and honours.
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Footnote 325:
Coke (Second Institute, pp. 1-2) is here in error; he makes John the innovator.
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John began his reign in 1199 as ruler over the undivided possessions of the House of Anjou at their widest stretch, extending without a break, other than the waters of the Channel, from the Cheviots to the Pyrenees. These lands were held by John, as by his father, under a variety of titles and conditions. Anjou, the original home and fief of the hot-blooded Plantagenet race, still carried with it only the modest rank of count. In addition to this paternal title, Henry II. had, at an early age, become duke of Normandy in his mother’s right, and thereafter duke of Aquitaine by marriage with Eleanor, its heiress. These three great fiefs were held by Henry and his sons under the king of France as their lord paramount. Long before 1215, John’s bad fortune or incompetence had lost to him these wide continental dominions except the most distant of them all, his mother’s dowry of Aquitaine. His ancestral domains of Anjou and Normandy had been irretrievably lost, but he still retained their empty titles; and in this his son Henry III. followed him, grasping the shadow long after the substance had fled. Entries relating to Gascony frequently appear on the Rolls of Parliament of Edward I.; and the kings of England were styled dukes of Aquitaine, dukes of Guienne, or dukes of Gascony (the three descriptions being used indifferently) until Edward III. merged all these titles in a wider one, when he claimed the throne of France.
England alone, of John’s possessions, real and nominal, was held by the higher style of “Rex,” implying strictly sovereign rule, independent of any overlord, and retained by John in 1215 in spite of his recent acceptance of Innocent III. as feudal overlord. Of Ireland, John was still content to describe himself, as formerly, “lord,” not king. The exact meaning of the word “Dominus” in medieval charters, particularly in those of Stephen, has been made the subject of much learned controversy; which has not yet resulted in a consensus of opinion as to the technical meaning, if any, borne by the word.[326] “Dominus,” indeed, seems to have been loosely used wherever something of substance or of ceremonial was lacking from the full sovereignty implied in the more specific name of king. In this connection much stress was laid on the solemn sacrament of coronation, implying among other things formal consecration by the church.[327]
Footnote 326:
Various theories will be found in Round’s Geoffrey de Mandeville, 70; Dr. Rüssler’s Matilde, 291–4; and Ramsay’s Foundations of England, II. 403.
Footnote 327:
Cf. supra, p. 119.
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John’s connection with England, then, is expressed in two simple words, “Rex Anglie,” no explanation being vouchsafed of how he had acquired this title. Such vindication, indeed, was not called for, as this was no coronation charter, John having already reigned for fifteen years without any serious rival—the claims of Arthur, the son of his elder brother Geoffrey, never having been taken seriously in England.[328] The simple words, “Dei gratia rex Anglie,” may be contrasted with the detailed titles set out in the coronation charters of Henry I. and Stephen respectively. Henry I. in 1100 had emphasized his relationship to preceding kings, describing himself as “Filius Willelmi regis post obitum fratris sui Willelmi, Dei gracia rex Anglorum”;[329] while Stephen in April, 1136, in his second and more deliberate charter, used an entirely different formula, “Dei gracia assensu cleri et populi in regem Anglie electus, et a Willelmo Cantuarensi archiepiscopo et sancte Romane ecclesie legato consecratus, et ab Innocentio sancte Romane sedis pontifice postmodum confirmatus,”[330] the laboured nature of which betrays the consciousness of weakness.
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Footnote 328:
Geoffrey’s daughter Eleanor was in 1215, a prisoner in Corfe Castle. See infra, c. 59.
Footnote 329:
See Appendix.
Footnote 330:
See Appendix.
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Thus Henry I. and Stephen each laid stress on the strong points of his title and ignored its defects. These two claims of kingship express, in a crude form, two rival theories of the title to the English Crown—(1) hereditary succession, and (2) election. Neither of these is an accurate reflection of the full theory and practice of the twelfth century, which blended both principles in proportions not easy to define with accuracy. Professor Freeman has pushed to excess the supposed right of the Witenagemot to elect the king, and has transferred wholesale to the Norman Curia (which, in some respects, took its place) all the powers enjoyed by its forerunner. A recent German writer, Dr. Oskar Rössler,[331] has gone equally far in the opposite direction, flatly denying that the Normans ever admitted the elective element at all. The theory now usually held is a mean between these extremes, namely that the Norman Curia (or the chief magnates who usually composed it) had a limited right of selecting among the sons, brothers, or near relations of the last king, the individual best suited to succeed him. Such a right, never authoritatively enunciated, gradually sank to an empty formality. Its place was taken, to some extent, by the successful assertion by the spiritual power (usually represented by the archbishop of Canterbury), of a claim to give or withhold the consecrating oil which accompanied the church’s blessing. Without this no dominus could be recognized as rex. On this theory the descriptions of their own titles given by Henry I. and Stephen were alike incomplete: each ignored the facts which did not suit him. John, on the contrary, secure in possession, condescends on no particulars, but contents himself with the terse assertion of the fact of his kingship: “Johannes, dei gratia, Rex Anglie.”
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Footnote 331:
Matilde, passim.
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II. The Names of the Consenting Nobles. It was natural that the Charter should place formally on record the assent of those counsellors who attended John when he made terms with his enemies, of those magnates who remained in at least nominal allegiance, and were therefore capable of acting as the mediators by whose good offices peace was for a time restored.[332] The leading men in England during this crisis may be arranged in three groups: (1) the leaders of the great host openly opposed to John at Runnymede; (2) the agents of John’s oppressions, extreme men, mostly aliens, many of whom were in command of royal castles or of mercenary levies ready to take the field; and (3) moderate men, mostly churchmen or John’s ministers or relations, who, whatever their sympathies might be, remained in allegiance to the king and helped to arrange terms of peace—a comparatively small band, as the paucity of names recited in Magna Carta testifies.[333] The men, here made consenters to John’s grant of Magna Carta, are again referred to, though not by name, in chapter 63, in the character of witnesses.
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Footnote 332:
Dr. Stubbs, Const. Hist., I. 582, gives the motive of thus naming them as “the hope of binding the persons whom it includes to the continued support of the hard-won liberties.” Those named were all moderate men. M. Paris (Chron. Maj. II., 589) describes them as “quasi ex parte regis,” while Ralph of Coggeshall (p. 172) narrates how “by the intervention of the Archbishop of Canterbury, with a few of his bishops and some barons, a kind of peace was made.” Cf. Annals of Dunstable, III. 43. The neutrality of the prelates is proved by other evidence. (a) C. 62 gave them authority to certify by letters testimonial the correctness of copies of the Charter. (b) The 25th of the Articles of the Barons left to their decision whether John should enjoy a crusader’s privileges; while c. 55 gave Langton a special place in determining what fines were unjust. (c) The Tower of London was placed in the custody of the archbishop as a neutral man whom both sides could trust. (d) Copies are preserved of two protests on different subjects by the prelates in favour of the king. See Appendix.
Footnote 333:
Cf. supra, 43–4, and for biographical information see authorities there cited.
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III. The Reasons of the Grant. The preamble contains also a statement of what purport to be John’s reasons for conceding the Charter. These are quaintly paraphrased by Coke:[334] "Here be four notable causes of the making of this great charter rehearsed. 1. The honour of God. 2. For the health of the King’s soul. 3. For the exaltation of holy church, and fourthly, for the amendment of the Kingdom." The real reason must be sought in another direction, namely, in the army of the rebels; and John in after days did not scruple to plead consent given under threat of violence, as a reason for voiding his grant. The technical legal “consideration,” the quid pro quo which John received as the price of this confirmation of their liberties was the renewal by his opponents of the homage and fealty which they had solemnly renounced. This “consideration” was not stated in the charter, but the fact was known to all.[335]
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Footnote 334:
Second Institute, 1, n.
Footnote 335:
Cf. supra, 41.
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CHAPTER ONE.
In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas; et ita volumus observari; quod apparet ex eo quod libertatem electionum, que maxima et magis necessaria reputatur ecclesie Anglicane, mera et spontanea voluntate, ante discordiam inter nos et barones nostros motam, concessimus et carta nostra confirmavimus, et eam obtinuimus a domino papa Innocencio tercio confirmari; quam et nos observabimus et ab heredibus nostris in perpetuum bona fide volumus observari.[336] Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et heredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas eis et heredibus suis, de nobis et heredibus nostris.
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Footnote 336:
Some editions of the Charter place here the division between c. 1 and c. 2.
In the first place we have granted to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III., before the quarrel arose between us and our barons, and this we will observe, and our will is that it be observed in good faith by our heirs for ever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.
This first of the sixty-three chapters of Magna Carta here places side by side, bracketed equal as it were, (a) a general confirmation of the privileges of the English national church, and (b) a declaration that the various civil rights to be afterwards specified in detail were granted “to all freemen” of the kingdom and to their heirs for ever. The manner of this juxtaposition of the church’s rights with the lay rights of freemen, suggests an intention to make it clear that neither group was to be treated as of more importance than the other. If the civil and political rights of the nation at large occupy the bulk of the Charter, and are defined in their minutest details, the church’s rights, of which no mention whatever had been made in the Articles of the Barons, receive here a prior place.[337] A twofold division thus suggests itself.
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Footnote 337:
Cf. supra, p. 50.
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I. The rights of the National Church. A general promise that the English church should be free was accompanied by a special confirmation of the separate charter recently granted guaranteeing freedom of canonical election. (1) Quod Anglicana ecclesia libera sit. This emphatic, if vague declaration, which has no counterpart in the Articles of the Barons, is repeated twice in Magna Carta, each time in a prominent position, at the beginning and the end respectively. If the work of the barons showed no special tenderness for churchmen’s privileges, Stephen Langton and his bishops were careful to have that defect remedied in the formal document by which John expressed his final consent. In extorting this promise of a “free” English church, the prelates seem to have been satisfied that they need ask for nothing more; the other particulars in which the Charter differs from its draft show no trace of clerical bias. The phrase used, indeed, was deplorably vague and elastic; it scarcely needed stretching to cover the widest encroachments of clerical arrogance. Yet the formula was by no means a new one; Henry I. and Stephen had successively confirmed the claim of holy church to its freedom.[338]
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Footnote 338:
See these charters in Appendix.
Henry II. was careful to avoid making any such promises: his whole reign was an effort, not unsuccessful in spite of the terrible disadvantage at which he was placed by the murder of Becket, to deprive the church of what her leaders considered her legitimate “freedom.” John in 1215, however, receded from the ground occupied by his father, confirming by the Great Charter the promise given by the weakest of his Norman predecessors, in a phrase repeated in all subsequent confirmations.
It by no means follows that “freedom of the church,” as promised by Stephen, meant exactly the same thing as “freedom of the church” promised by John and his successors.[339] The value to be attached to such assurances varied in inverse ratio to the strength of the kings who made them, and this is well illustrated by a comparison of the charters of Henry I., Stephen, and John. Henry qualifies the phrase by words which illustrate if they do not limit its application. God’s holy church was to be free “so that I shall neither sell nor let to farm, nor on the death of archbishop, bishop, or abbot, accept anything from the demesne of the church or from its tenants, until his successor has entered into possession.”[340] This suggests a somewhat narrow interpretation of the church’s freedom—exemption mainly from the iniquities of Rufus. Stephen’s charter, on the contrary, explains or supplements the same phrase by definite declarations that the bishops should have sole jurisdiction over churchmen and their goods, and that all rights of wardship over church lands were renounced, thus making it a “large and dangerous promise.”[341]
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Footnote 339:
It is perhaps worthy of note that while the charters of Henry I. and Stephen spoke only of “holy church,” John speaks of the “English church.” This change suggests a growth of patriotism among the prelates, led by Stephen Langton.
Footnote 340:
Cf. supra, 117.
Footnote 341:
Cf. Pollock and Maitland, I. 74.
“Freedom of the church” had thus come in 1136 to include “benefit of clergy” in a specially sweeping form, and much besides.[342] It is easy to understand why churchmen cherished an elastic phrase which, wide as were the privileges it already covered, might readily be stretched wider. Laymen, on the contrary, contended for a more restrictive meaning; and the Constitutions of Clarendon must be viewed primarily as an attempt to arrive at definite conclusions on disputed points of interpretation. Henry II. substantially held his ground, in spite of his nominal surrender after Becket’s murder. Thanks to his firmness, "the church’s freedom" shrank to more reasonable proportions, so that the well-known formula, when repeated by John, was emptied of much of the content found in it by Stephen’s bishops. If it still implied “benefit of clergy” that phrase was now read in a more restricted sense, while wardship over vacant sees was expressly reserved to the Crown by John. Chapter 18 of Magna Carta accepted, apparently with the approval of all classes, the principle that questions of church patronage (assizes of darrein presentment)[343] should be settled before the King’s Justices, a concession to the civil power inconsistent with the more extreme interpretations formerly put by churchmen on the phrase.[344]
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Footnote 342:
Cf. supra, 120–1.
Footnote 343:
For explanation see infra, c. 18.
Footnote 344:
On the other hand c. 22, which lays down special rules for the amercement of beneficed clerks, to that extent confirmed class privileges of the clergy.
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In later reigns the pretensions of the church to privileged treatment were gradually reduced to narrow bounds, and the process of compression was facilitated by that very elasticity on which the clergy had relied as being favourable to the expansion of their claims. It was the civil government which benefited in the end from the vagueness of the words in which Magna Carta declared quod Anglicana ecclesia libera sit.[345]
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Footnote 345:
Mr. J. H. Round (Geoffrey de Mandeville, 3), speaking of Stephen’s “oath” to restore the church her “liberty,” describes this as “a phrase the meaning of which is well known.” If “well” known, it was known chiefly as something vague, something which baffled definition, because churchmen and laymen could never agree as to its contents, while it tended also to vary from reign to reign. Mr. Round attempts no definition. Sir James Ramsay (Angevin Empire, p. 475), writing of the phrase as used in John’s Charter, is less prudent. "It would relieve the clergy of all lay control, and of all liability to contribute to the needs of the State beyond the occasional scutages due from the higher clergy for their knights’ fees." This definition assuredly would not have satisfied Henry I., as a legitimate interpretation of the words as used by him in his Charter of Liberties.
(2) Canonical election. A separate charter to the national church had been granted on 21st November, 1214, and re-issued on 15th January, 1215.[346] Its tenor may be given in three words, “freedom of election.” In all cathedral and conventual churches and monasteries, the appointment of prelates was to be free from royal intervention for the future, provided always that licence to fill the vacancy had first been asked of the king. Now, in words, this was no new concession, but merely a confirmation of the Concordat arrived at long before between Henry I. and archbishop Anselm as a solution of the rival claims of Church and State in the election of bishops and abbots.[347] The essence of that arrangement had been to vest solely in the canons of the chapter of the vacant diocese the nominal right to appoint the new bishop, subject, however, to the actual election taking place in the royal court or chapel—so that the king, being present, might endeavour to prevent the appointment of any churchman he objected to. The result had not been what Anselm and the papal court expected; Henry I. and his successors strenuously used or abused the influence thus reserved to them: none but royal favourites were ever appointed, and the nominally free canonical election became a sham. Churchmen had long desired to remedy this: Langton saw his opportunity, and on 21st November, 1214, secured from King John, so far as mere words could secure anything, that the right of election by the canons of the chapter should henceforth be transformed from a pretence into a reality. The bishops present at Runnymede used their influence to have a distinct confirmation of this recent concession inserted in the very forefront of Magna Carta.
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Footnote 346:
Cf. supra, p. 39. The text will be found in Statutes of the Realm, I. 5, and in New Rymer, I. 126-7. It was confirmed by Innocent on 30th March, 1215. See Potthast, Regesta pontificum romanorum, No. 4963.
Footnote 347:
Cf. supra, p. 22.
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Their forethought was insufficient permanently to prevent royal influence from bending canonical election to its will. Henry III., indeed, in his reissues was made to repeat the phrase quod Anglicana ecclesia libera sit, but omitted all reference alike to canonical election and to the charters of 21st November, 1214, and 15th January, 1215. Later in his reign, he took advantage of this, with the Pope’s connivance or support, to reduce again the rights of cathedral chapters in the appointment of bishops to the sinecure they had been before.
It is true that Henry III. was prone, alike by nature and from policy, to lean on the papal arm, and that the Curia at Rome rather than the Curia Regis for a time dominated the appointment to vacant sees. Henry and Innocent IV. indeed formed a tacit alliance for dividing all fat livings among their respective creatures, king’s men or pope’s men, who had little interest in England or its welfare. Edward I., impatient of foreign dictation as he was, had to submit to a partial continuance of “provisions” for hangers-on of the papacy in his insular domains; but the national church had little to gain. The canons elected the nominee of king or pope, as each was, for the moment, in the ascendant.[348]
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Footnote 348:
Cf supra, p. 167.
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An interesting, if purely academic, question might be raised as to how far the rights guaranteed by Magna Carta to the English church were meant to imply freedom from papal as well as from royal interference. It is clear that the movement which culminated in the charter of 21st November, 1214, originated in England, not at Rome; and apparently Nicholas, the papal legate at that date, opposed the endeavours of Stephen Langton to obtain it. The archbishop indeed looked upon the legate as the chief obstacle to the reform by the king of the grievances of the national church.[349] In spite of Magna Carta, then, the independence of the national church retrograded, rather than advanced, during the long alliance between Henry III. and the successive occupants of the papal throne.[350]
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Footnote 349:
See Miss Norgate, John Lackland, p. 208, and authorities there cited.
Footnote 350:
Cf. Prothero, Simon de Montfort, p. 152. “The English church was indeed less independent of the king in 1258 than in 1215, and far less independent of the Pope than in the days of Becket.”
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II. Civil and Political Rights. After providing thus briefly for the church, chapter one proceeds to give equal prominence, but at greater length, to the grant or confirmation of secular customs and liberties. This takes here the form of a general enacting clause, leaving details to be specified in the remaining sixty-two chapters of the Charter. Some of the more important points involved have already been discussed in the Historical Introduction—for example, the feudal form of the grant, better suited, according to modern ideas, to the conveyance of a specific piece of land, than to the securing of the political and civil liberties of a mighty nation; and the vexed question as to what classes of Englishmen were intended, under the description of “freemen,” to participate in these rights.[351]
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Footnote 351:
See supra, pp. 128-9 and 141-2. For the meaning of “freeman” and Coke’s inclusion of villeins under that term for some purposes but not for others, see infra, cc. 20 and 39.
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Another interesting point, though of minor importance, calls for separate treatment. John does not state that his grants of civil and political rights had been made spontaneously. Whether deliberately or not, there is here a marked distinction between the phraseology applied to secular and to ecclesiastical rights respectively. While the concessions to churchmen are said to have been granted “mera et spontanea voluntate,” no such statement is made about the concessions to the freemen. John may have favoured this omission as strengthening his contention that the Great Charter had been sealed by him under compulsion. In the third re-issue of Henry III. (1225) this defect was remedied—the words “spontanea et bona voluntate nostra” being used in its preamble.[352] Some importance seems to have been attributed to this addition, which formed the essence of a concession bought by the surrender of one-fifteenth of the moveable property of all estates of the realm.
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Footnote 352:
Cf. supra, p. 181.
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CHAPTER TWO.
Si quis comitum vel baronum nostrorum, sive aliorum tenencium de nobis in capite per servicium militare, mortuus fuerit, et cum decesserit heres suus plene etatis fuerit et relevium debeat, habeat hereditatem suam per antiquum relevium; scilicet heres vel heredes comitis de baronia comitis integra per centum libras; heres vel heredes baronis de baronia integra per centum libras; heres vel heredes militis de feodo militis integro per centum solidos ad plus; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum.
If any of our earls or barons, or others holding of us in chief by military service shall have died, and at the time of his death his heir shall be of full age and owe “relief,” he shall have his inheritance on payment of the ancient relief, namely the heir or heirs of an earl, £100 for a whole earl’s barony; the heir or heirs of a baron, £100 for a whole barony; the heir or heirs of a knight, 100s. at most for a whole knight’s fee; and whoever owes less let him give less, according to the ancient custom of fiefs.
All preliminaries concluded, the Charter at once attacked what was, in the barons’ eyes, the chief of John’s abuses, his arbitrary increase of feudal obligations. The Articles of the Barons, indeed, had plunged at once into this most crucial question without a word by way of pious phrases or legal formulae, such as were necessary in a regular Charter.
I. Assessment of Beliefs. Each “incident” had its own special possibilities of abuse, and the Great Charter deals with each of these in turn. The present chapter defines the reliefs to be henceforth paid to John.[353] The vagueness of the sums at first was a natural corollary of the early doubts as to whether the hereditary principle was absolutely binding or not. The heir with title not yet recognized was keen to come to terms. The lord took as much as he could grind from the inexperience or timidity of the youthful heir; the heir tried to profit from the good nature or temporary embarrassments of the lord. All was vague; and such vagueness favoured the strongest or most wily.
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Footnote 353:
Cf. supra, p. 73.
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A process of definition, however, was early at work; and progressed, though slowly. Public opinion set limits of variation, to go beyond which was considered unreasonable or even indecent. Some conception of a “reasonable relief” was evolved. Yet the criterion varied: the Crown might defy rules binding on others. Henry I., indeed, when bidding against duke Robert in 1099 for the throne showed himself willing, in words if not in practice, to accept the limits set by contemporary opinion. His Charter of Liberties promised that all reliefs should be justa et legitima—an elastic phrase no doubt, and one in after days liberally interpreted by the exchequer officials in their royal master’s favour. By the end of the twelfth century, when Glanvill wrote, the exact sums which could be taken by mesne lords had been fixed; although the Crown remained free to exact higher rates. Baroniae capitales, he tells us, were charged relief, not at a fixed rate, but at sums which varied juxta voluntatem et misericordiam domini regis.[354]
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Footnote 354:
Glanvill’s words (IX. c. 4) are unfortunately ambiguous. He distinguishes three cases: (a) the normal knight’s fee, from which 100s. was due as relief (whether this extends to fees of crown tenants does not appear); (b) socage lands, from which one year’s rent might be taken; and (c) “capitales baroniae,” which were left subject to reliefs at the king’s discretion. Now “barony” was a loose word: baronies, like barons, might be small or great (cf. infra, c. 14); all crown fiefs being “baronies” in one sense, but only certain larger “honours” being so reckoned in another. Glanvill leaves this vital point undetermined, but evidence from other sources makes it probable that even smaller crown holdings should for this purpose be classed under his capitales baroniae, and not with knights’ fees held from mesne lords. Two passages from the Dialogus de Scaccario (II. x. E. p. 135 and II. xxiv. p. 155) clearly support the distinction between all crown tenants (small as well as great) on the one hand, and tenants of mesne lords on the other: only the latter had their reliefs fixed, while the former were at the king’s discretion. (The second passage shows how the exchequer officials held the onus of proof to lie on the heir to a crown fief to show that he was worthy to succeed his father, and suggests rich gifts to the king as the best form of proof.) Madox (I. 315-6) cites from the Pipe Rolls large sums exacted by the crown. Usually the number of knights’ fees paid for is not specified, but in one case a relief of £300 was paid for six fees—that is, at the rate of £50 per fee, or exactly ten times what a mesne lord could have exacted. (See Pipe Roll, 24 Henry II., cited by Madox, ibid.) There is further evidence to the same effect: where a barony had escheated to the crown, reliefs of the former under-tenants would in future be payable directly to the crown; but it was the practice of Henry II. (confirmed by c. 43 of Magna Carta, q. v.) to charge, in such cases, only the lower rates exigible prior to the escheat. A similar rule applied to under-tenants of baronies in wardship; see the case of the knights of the see of Lincoln in the hands of a royal warden in Pipe Roll, 14 Henry II. (cited by Madox, ibid.). It would thus appear that all holders of crown fiefs (not merely barones majores) were in Glanvill’s day still liable to arbitrary extortions in name of reliefs. The editors of the Dialogus (p. 223) are also of this opinion. Pollock and Maitland (I. 289), however, maintain the opposite view—namely, that the limitation to 100s. per knight’s fee was binding on the crown as well as on mesne lords.
Every year, however, made for definition; and custom pointed with increasing authority towards 100s. per knight’s fee, and £100 for a barony. Two entries on the Pipe Roll of 10 Richard I. amusingly illustrate the unsettled practice. A sum of £100 is described as a “reasonable relief” for a barony, and immediately this entry is stultified by a second entry of a considerable additional payment by way of “fine” to induce the king to accept the sum his own roll had just declared “reasonable.”[355] John was more openly regardless of reason. The Pipe Roll of 1202 shows how an unfortunate heir failed to get his heritage until he paid 300 marks, with the promise of an annual “acceptable present” to the king.[356]
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Footnote 355:
Madox, I. 316.
Footnote 356:
Madox, I. 317.
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If John could ask so much, what prevented him asking more? He might name a prohibitive price, and so defeat the hereditability of fiefs altogether. Such arbitrary exactions must end, so the barons were determined in 1215; custom must be defined, so as to prevail henceforth against royal discretion. The first demand of the Articles of the Barons is, “that heirs of full age shall have their heritage by the ancient relief to be set forth in the Charter.” Here it is, then, duly set forth and defined in chapter 2 of Magna Carta as £100 for an "earl’s barony," £100 for "a baron’s barony," 100s. for a knight’s fee, and a proportional part of 100s. for every fraction of a knight’s fee. This clause produced the desired effect. These rates were strictly observed by the exchequer of Henry III., as we know from the Pipe Rolls of his reign. Thus, when a certain William Pantoll was charged with £100 for his relief on the mistaken supposition that he held a “barony,” he protested that he held only five knight’s fees, and got off with the payment of £25.[357] The relief of a barony was subsequently reduced from £100 to 100 marks. The date of this change, if we may rely on Madox,[358] lies between the twenty-first and thirty-fifth years of Edward I.[359]
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Footnote 357:
Ibid., I. 318.
Footnote 358:
Ibid., I. 321.
Footnote 359:
The first of the long series of charters and confirmations which contains it seems to be the Inspeximus of 10th October, 1297, which in all probability merely recognized officially a rule long demanded as simple justice by the barons and public opinion. (See Madox, I. 318, Pollock and Maitland, I. 289, and Bémont, Chartes, p. 47.)
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Apparently all who paid reliefs to the king were mulcted in a further payment (calculated at 9 per cent. of the relief) in name of "Queen’s Gold," a contribution to the private purse of the Queen Consort, and collected by an official specially representing her at the exchequer.[360]
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Footnote 360:
See note by editors of Dialogus, p. 238. The Petition of the Barons in 1258 (Sel. Charters, 382) protested against this, and the practice was discontinued.
The Charter deals only with tenure by knight’s service; nothing is said of other tenures. The explanation of the omission may possibly be different in the cases of socage and of serjeanty respectively.[361] (a) Socage. The barons were not so vitally interested in socage, that being, in the normal case, the tenure of humbler men.[362] In later reigns the king, like an ordinary mesne lord, contented himself with one year’s rent of socage lands in name of relief. (b) Serjeanty. The barons cannot have been indifferent to the fate of serjeanties, since many of them held great estates by such tenures. Possibly they assumed that the rules applied to knights’ fees and baronies would apply to serjeanties as well. The Crown, however, acted on a different view; large sums were frequently extorted by Henry III. By the reign of Edward I., however, the practice of the exchequer was to limit itself to one year’s rent (a sufficiently severe exaction)[363] for serjeanties, which thus fell into line with socage.[364]
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Footnote 361:
Cf. supra, pp. 66-9.
Footnote 362:
It is possible to argue that the custom as to socage was already too well settled to require any confirmation. Glanvill (IX. c. 4) stated the relief for socage at one year’s annual value. It is not absolutely clear, however, whether this restriction applied to the crown. Further, no custom, however well established, was sufficiently safe against John’s greed, to make confirmation unnecessary.
Footnote 363:
See Littleton, Tenures, II. viii., s. 154, and Madox, I. 321, who cites the case of a certain Henry, son of William le Moigne, who was fined in £18 for the relief of lands worth £18 a year held "by the serjeanty of the King’s Lardinary."
Footnote 364:
Cf. supra, p. 69.
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II. Units of Assessment. Some explanation is required of the three groups into which crown estates were thus divided—knight’s fees, barons’ baronies, and earls’ baronies.
(1) Feodum militis integrum. The origin of the knight’s fee is obscured by a network of conflicting theories. A thread of connection is sometimes traced between it and the mysterious five-hide unit of Anglo-Saxon times; other authorities would ascribe its introduction into England to a definite act of some great personage—either William the Conqueror, according to Selden, who founds on a well-known but untrustworthy passage in Ordericus Vitalis, or Ranulf Flambard, according to Freeman, Stubbs, and Gneist. It seems probable that the Normans, here as elsewhere, pursued their policy of avoiding an open rupture with the past, and that the Conqueror adapted as far as possible the existing system of land tenure to his own needs. There is little doubt, in light of the evidence accumulated by Mr. Round in his Feudal England, that William I. stipulated verbally for the service of a definite number of knights from every fief bestowed by him on his Norman followers. A knight’s fee or scutum thus became a measure of military service, and of feudal assessment; servitium unius militis was a well-known legal unit. But a difficult problem arises when it is asked what definite equation, if any, existed between land and service. Three answers have been given: (a) A definite ratio exists between amount of service and extent of ground. In other words, the knight’s fee contains a fixed area of land; every five hides sent one warrior, thus preserving the old Anglo-Saxon unit.[365] (b) The ratio lies not between service and extent, but between service and value. An estate of £20 annual rental sends one knight to the king’s wars; the normal knight’s fee contains 20 librates of land.[366] (c) Other authorities deny that any proportion exists at all: William the Conqueror exacted from each of his grantees precisely as much or as little knight’s service as he saw fit.
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Footnote 365:
C. Pearson, Hist. of Engl., I. 375, note 2.
Footnote 366:
J. H. Round, Feudal England, 295.
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Is it not possible to reconcile these divergent conclusions? Undoubtedly the Conqueror held himself bound by no fixed rules, but made exceptions where he pleased: some favoured foundations were exempt from all service whatsoever.[367] Yet, if he distributed estates at his own free will, he did not necessarily distribute them irrationally or at random. He demanded service of knights in round numbers, 5 or 10 or 20, as he saw cause, and in normal cases he was guided by some loose sense of proportion. Where there was no reason either for preferential treatment or for special severity, service would be roughly proportionate either to the area or to the value. This rule was William’s servant, not his master, and was made to yield to many exceptions, which would amply account for the existence in later days of knight’s fees varying from 2 hides to 14 hides, instead of the normal 5.[368] Each such fee, whatever its acreage or its rental, owed the service of one knight, and paid relief at 100s.
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Footnote 367:
E.g. Gloucester and Battle Abbeys: see Round, ibid., 299.
Footnote 368:
See Round, Feudal England, 294, and Pollock and Maitland, I. 235.
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(2) Baronia integra. The word “barony” cannot be easily defined, on account of the many changes it has undergone.[369] A “barony” at the Norman Conquest differed in almost every respect from a “barony” at the present day. The word baro was originally synonymous with homo, meaning, in feudal usage, a vassal of any lord. It soon became usual, however, to confine the word to king’s men; “barones” were thus identical with "crown tenants"—a considerable body at first; but a new distinction soon arose between the great men and the smaller men among their number (between barones majores and barones minores). The latter were usually called knights (milites), while “baron” was reserved for the holder of an “honour.”[370] For determining what constituted an “honour,” however, it was impossible to lay down any absolute criterion. Mere size was not sufficient: a magnate once classed as a full “baron” might successfully claim to be only a “knight,” thus lightening some of his feudal burdens, for example this one of “reliefs.” Chapter 14 of Magna Carta helped to stereotype the division, since it stipulated that each major baro should receive an individual writ of summons to the Council, leaving the barones minores to be convened collectively through the sheriff. As the one point of certainty, where everything else was vague, these writs came to possess an exaggerated importance, and it was finally held (at a date long subsequent to Magna Carta) that the mere receipt of a special summons, if acted upon, made the recipient a baron, and entitled his heirs, in all time coming, to succeed him in what was fast hardening into a recognized title of dignity. The “barons” in 1215 knew nothing of all this; they desired merely to have the reliefs due by them taxed at a fixed rate. Each “barony” should pay £100, a sum afterwards reduced to 100 marks.
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Footnote 369:
See Pollock and Maitland, I. 262, and authorities there cited. “An honour or barony is thus regarded as a mass of lands which from of old have been held by a single title.” An exact definition is, perhaps, impossible: the term was first applied in early days without any technical meaning; in later days each “honour” had separately established its position by prescriptive usage. See also Pike, House of Lords, pp. 88-9, on the difficulty of defining “an entire barony.”
Footnote 370:
This change was not complete in 1215, but Magna Carta, when it uses “barones” alone, seems to refer to “barones majores” only (see cc. 2, 21, 61). In c. 14, “barones majores” are contrasted with “barones minores.”
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Relief was thereafter a fixed sum, while the size of the barony varied in each case. As the same holds true of the knight’s fee, it is doubly ridiculous to attempt to discover an equation between the knight’s fee and the barony founded upon the ratio of the sums payable. Coke, however, was guilty of this absurdity.[371]
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Footnote 371:
See Coke on Littleton, II. iv. s. 112, and ibid. Second Institute, p. 7. Founding on the later practice of the exchequer, which exacted one hundred marks of relief from a barony, and one hundred shillings from a knight’s fee, he assumed the false equation "1 barony = 13⅓ knight’s fees." If he had known of the earlier practice, which followed the rule of John’s Charter, he might have jumped to another equation, equally false, namely that "1 barony = 20 knight’s fees." There is, in reality, no fixed proportion between the two, either as to extent or value.
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(3) Baronia comitis integra. A peculiar phrase is used in the text, an "earl’s barony" appearing where “earldom” might be expected.[372] The reason is that “earldom” originally implied the holding of an office and not the ownership of land, whereas relief was payable for the earl’s lands or “honour,” not for his office. The Charter, therefore, uses words well fitted to make its meaning clear. The earl (or comes) was the successor of the ealdorman as local governor of a county or group of counties. His title was official, not tenurial, or even, in early times, necessarily hereditary.
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Footnote 372:
In the Inspeximus of Edward I., however, the word comitatus (earldom) displaces the baronia comitis of the text. See Statutes of Realm, I. 114.
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Some of the ideas most intimately connected with a modern earldom were signally inappropriate to the Norman earls. At the present day an earldom is one of several “steps in the peerage,” a conception that did not then exist. At the present day it carries with it a seat in the House of Lords, whereas no instance is recorded until long after the Norman Conquest of any earl or other great man demanding as a right to be present in the king’s council: the custom of summoning all crown tenants became stereotyped only in the reign of Henry II. and was not formally recognized previous to chapter 14 of Magna Carta. At the present day, again, the hereditary principle is the chief feature of an earldom, whereas William did not admit that the office necessarily passed from father to son.[373]
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Footnote 373:
See Pike, House of Lords, 57.
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The policy of the Conqueror had been to bring each county as far as possible under his own direct authority; many districts had no earls, while in others the connection of an earl with his titular shire was reduced to a shadow, the only points of connection being the right to enjoy “the third penny” (that is, the third part pro indiviso of the profits of justice administered in the county court) and the right to bear its name. It is true that in addition the earl usually held valuable estates in the shire, but he did this only as any other landowner might. For purposes of taxation the whole of his lands, whether in his own county or elsewhere, were reckoned as one unit, here described as baronia comitis integra, the relief on which was taxed at one hundred pounds.
Very gradually in after ages, the conception of an earldom suffered change. The official character gave way before the idea of tenure, and later on the modern conception was formulated of a hereditary dignity conferring specific rank and privileges. The period of transition when the tenurial idea prevailed is illustrated by the successful attempt of Ranulf, earl of Chester and Lincoln, in the reign of Henry III. to aliene one of his two earldoms—described by him as the comitatus of Lincoln.[374] Earls are now, like barons, created by letters patent, and need not be land-owners. Thus the words “barony” and “earldom,” so diverse in their origin and early development, were closely united in their later history.
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Footnote 374:
See Pike, House of Lords, 63. This term comitatus was a word of many meanings. Originally designating the “county” or “the county court,” it came to mean also the office of the earl who ruled the county, and later on it might indicate, according to context, either his titular connection with the shire, his estates, his share of the profits of justice, or his rank in the peerage.
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III. Liability of Church Property to “Relief.” The Great Charter of John, unlike the Charter of Henry I. makes no mention of the lands of vacant sees in this connection, probably because the main question had long been settled in favour of the church. The position of a bishopric was, however, a peculiar one. Each prelate was a crown tenant, and his fief was reckoned a “barony,” entitling its owner to all the privileges, and saddling him with all the feudal obligations of a baron.[375]
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Footnote 375:
This was specially affirmed in 1164 by article 11 of the Constitutions of Clarendon, which stipulated that each prelate should hold his lands sicut baroniam, merely a restatement of existing law.
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It was not then unnatural that, when a prelate died, the Crown should demand “relief” from his successor, in the same way as from the heir of a dead lay baron. Such demands, when made by William Rufus and his minister Flambard, met with bitter opposition. The Crown in consequence, unwilling to forego any of its feudal dues, endeavoured to shift their incidence from the revenues of the see to the shoulders of the feudal under-tenants. After bishop Wulfstan’s death on 18th January, 1095, a writ was issued in William’s name to the freeholders of the see of Worcester, calling on each of them to pay, as a relief due on their bishop’s death, a specified sum, assessed by the barons of the exchequer.[376]
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Footnote 376:
Sicut per barones meos disposui. The writ is given in Heming’s Cartulary, I. 79-80, and reprinted by Round, Feudal England, 309.
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In revenge for such extortions from church lands and tenants, the historians of the day, all necessarily recruited from the clerical class, have heartily recommended Rufus and Flambard to the opprobrium of posterity. Anselm compelled Henry I. to promise amendment in his coronation Charter, which undertook to exact nothing during vacancies either from the demesne of the church or from its tenants.[377] No corresponding promise was demanded from John, a proof that such exactions had ceased. The Crown no longer extorted relief from church lands, although wardship was, without protest, enforced during vacancies.
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Footnote 377:
See Appendix.
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CHAPTER THREE.
Si autem heres alicujus talium fuerit infra etatem et fuerit in custodia, cum ad etatem pervenerit, habeat hereditatem suam sine relevio et sine fine.
If, however, the heir of any one of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age.
The Crown is here forbidden to exact relief where it had already enjoyed wardship. It was hard on the youth, escaping from leading-strings, to be met, when he “sued out his livery,” with the demand for a large relief by the exchequer which had already appropriated all his available revenue. The same event, namely, the ancestor’s death, was thus made the excuse for two distinct feudal incidents.[378]
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Footnote 378:
Where there had already been a wardship, the relief was thus the price paid by the heir in order to escape from the heavy hand of the king, and was therefore known as “ousterlemain.” Mr. Taswell-Langmead (Engl. Const. Hist., p. 51, n.) states the amount at half a year’s profits. He cites no authorities for this, and is probably in error. The Dialogus, II. x. E., p. 135, forbids relief to be taken, when wardship had been exercised per aliquot annos.
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Such double extortion had long been forbidden to mesne lords; Magna Carta was merely extending similar limitations to the king. The grievance complained of had been intensified by an unfair expedient which John sometimes adopted. In cases of disputed succession he favoured the claims of a minor, enjoyed the wardship, and thereafter repudiated his title altogether, or confirmed it only in return for an exorbitant fine. The only safeguard was to provide that the king should not enjoy wardship until he had allowed the heir to perform homage, which constituted the binding tie of lord and vassal between them, prevented the king from challenging the vassal’s right, and bound him to “warrant” the title against all rival claimants. This expedient was actually adopted in the revised Charter of 1216.[379]
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Footnote 379:
See chapter 3 of 1216, which stipulates that no lord shall have wardship of an heir “antequam homagium ejus ceperit.” Cf. Coke, Second Institute, p. 10.
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The alterations in that reissue were not altogether in the vassal’s favour. Another addition made a reasonable stipulation in favour of the lord, which incidentally illustrates the theory underlying wardship. The essence of tenure in chivalry was the grant of land in return for military services. Only a knight was capable of bearing arms; hence it was that the lord held the lands in ward until the minor should reach man’s estate. Ingenious attempts had apparently been made to defeat these legitimate rights of feudal lords by making the infant heir a “knight,” thus cutting away the basis on which wardship rested. The reissue of 1216 prevented this, providing that the lands of a minor should remain in wardship, although he was made a knight.[380] Incidentally, the same Charter of Henry declared twenty-one years to be the period at which a military tenant came of age, a point on which John’s Charter had been silent.
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Footnote 380:
Coke, ibid., p. 12, makes a subtle, and apparently unwarranted, distinction to depend on whether the minor was made a knight before or after his ancestor’s death. The proviso, he argues, does not apply to the former case, because the word used is “remaneat,” and lands cannot “remain” in wardship if they were not in it before. Such reasoning is puerile.
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In one case, exceptionally, wardship and relief might both be exacted on account of the same death, though not by the same lord. Where the dead man had formerly held two estates, one of the Crown and one of a mesne lord, the Crown might claim the wardship of both, and then the disappointed mesne lord was allowed to exact relief as a solatium for his loss.[381]
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Footnote 381:
See Coke on Littleton, Book II. c. iv. s. 112; and cf. infra, cc. 37 and 43 for the “prerogative wardship” of the Crown.
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CHAPTER FOUR.
Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de terra heredis nisi racionabiles exitus, et racionabiles consuetudines, et racionabilia servicia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de exitibus respondeant nobis vel ei cui eos assignaverimus; et si dederimus vel vendiderimus alicui custodiam alicujus talis terre, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis respondeant sicut predictum est.
The guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waste of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible to us for the issues, or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to someone and he has therein made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid.
This chapter and the next treat of wardship,[382] a much hated feudal incident, which undoubtedly afforded openings for grave abuses. It is a mistake, however, to regard its mere existence as an abuse: it seems to have been perfectly legal in England from the date of the Norman Conquest, although some writers[383] consider it an innovation devised by William Rufus and Flambard, without precedent in the Conqueror’s reign. The chief argument for this mistaken view is that Henry I., in promising redress of several admitted inventions of Rufus, promised also to reform wardship. This may show that wardship was abused, but does not prove it an innovation.
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Footnote 382:
The nature of wardship is more fully explained supra, pp. 75-7.
Footnote 383:
E.g. Mr. Taswell-Langmead, Engl. Const. History, p. 51, n.
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The Charter of Henry committed him undoubtedly to drastic remedies, which would have amounted to the virtual abolition of wardship altogether. Chapter 4 of that document removed from the lord’s custody both the land and the person of the heir, and gave them to the widow of the deceased tenant (or to one of the kinsmen, if such kinsman had, by ancient custom, rights prior to those of the widow).[384] This was only one of the many insincere promises which the “lion of justice” never kept, and probably never meant to keep. Wardship continued to be exacted from lay fiefs throughout the reigns of Henry I. and Stephen. Article 4 of the Assize of Northampton (1176) merely confirmed the existing practice when it allowed wardship to the lord of the fee.[385] The barons in 1215 made no attempt to alter this, or to revert to the drastic remedies of the Charter of Henry I., although the evils complained of had become worse under John’s misgovernment.
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Footnote 384:
“This, it would seem, was the old English rule”; see Ramsay, Foundations of England, II. 230.
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It must be remembered that “wardship” placed the property and person of the heir at the mercy of the Crown. Even if the popular belief as to the fate met by Prince Arthur at his uncle’s hands was unfounded, John was by no means the guardian to inspire confidence in the widowed mother of a young Crown tenant whose estates the king might covet for himself. Further, the king might confer the office, with the delicate issues involved, upon whomsoever he would. When such a trust was abused it was difficult to obtain redress. In 1133 a guardian, accused de puella quam dicitur violasse in custodia sua, paid a fine to the crown, if not as hush money, at least in order to obtain protection from being sued elsewhere than in the Curia Regis.[386] It is easy to understand how thoroughly this feudal incident must have been detested in England and Normandy, all the more so if, as Hallam contends, it was not recognized as a feudal due in other parts of Europe.[387]
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Footnote 385:
It is a common error to suppose that this Assize restores wardship to the lord.
Footnote 386:
See Pipe Roll, 29 Henry II., cited Madox, I. 483.
Footnote 387:
Cf. supra, p. 78.
Guardians were of two kinds. The king might entrust the lands to the sheriff of the county where they lay (or to one of his bailiffs), such sheriff drawing the revenues on the Crown’s behalf, and accounting in due season at the exchequer. Alternatively, the king might make an out-and-out grant of the office, together with all profit to be derived from it, to a private individual, either some royal favourite or the bidder of the highest price. Commentators of a later date[388] apply the word “committee” to the former type of guardian, reserving “grantee” for the latter. This distinction, which is mentioned by Glanvill,[389] obtains recognition in this passage of the Charter. Neither was likely to have the interests of the minor at heart. Both would extort the maximum of revenue, the one for the king, the other for himself. They had always strong inducements to exhaust the soil, stock, and timber, uprooting and cutting down whatever would fetch a price, and replacing nothing. The heir found too often a wilderness of impoverished lands and empty barns.
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Footnote 388:
E.g. Coke, Second Institute, p. 13.
Footnote 389:
VII. c. 10.
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The remedies proposed by Magna Carta were too timid and half-hearted; yet something was effected. It was unnecessary to repeat the recognized rule that the minor must receive, out of the revenues of the land, maintenance and education suited to his station; but the Crown was restrained by chapter 3 from exacting relief where wardship had already been enjoyed; chapter 37 forbade John to exact wardship in certain cases where it was not legally due; while here in chapter 4 an attempt was made to protect the estate from waste.
The promised reforms included a definition of “waste”; punishment of the wasteful guardian; and protection against repetition of the abuse. Each of these calls for comment. (1) The definition of waste. The Charter uses the words “vastum hominum vel rerum” (a phrase which occurs also in Bracton).[390] It is easy to understand waste of goods; but what is "waste of men"? An answer may be found in the words of the so-called “unknown Charter of Liberties,”[391] which binds guardians to hand over the land to the heir “sine venditione nemorum et sine redemptione hominum.” Clearly, to enfranchise villeins was one method of “wasting men.” The young heir, when he came to the enjoyment of his estates, must not find his praedial serfs emancipated.[392] The words of the “unknown Charter” may be used to illustrate the text, even if it be a forgery, since a consensus of opinion holds it to be either contemporary or of slightly later date.[393]
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Footnote 390:
II. folio 87.
Footnote 391:
See Appendix.
Footnote 392:
Another way of “wasting” villeins was by tallaging them excessively. (For meaning of tallage cf. infra c. 12.) Thus Bracton’s Note Book reveals how one guardian destruxit villanos per tallagia (v. case 485); how another exiled or destroyed villeins to the value of 300 marks (case 574); how a third destroyed two rich villeins so that they became poor and beggars and exiles (case 632). Cf. also case 691. Daines Barrington, writing towards the middle of the eighteenth century, went too far when he inferred from this passage “that the villeins who held by servile tenure were considered as so many negroes on a sugar plantation” (Observations, p. 7.). For a definition of “villein” see infra c. 20.
Footnote 393:
Cf. supra, pp. 202-5.
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(2) The punishment of wasteful guardians. The Charter provides a distinct but appropriate form of punishment for each of the two types of guardian. John promises to take “amends,” doubtless of the nature of a fine, from the “committee” who had no personal interest in the property; while the “grantee” is to forfeit the guardianship, thus losing a valuable asset for which he had probably paid a high price, sufficient punishment, perhaps, without the exaction of damages.
Subsequent statutes did not, however, take so lenient a view. While the Statute of Westminster[394] merely repeated the words of Magna Carta, the Statute of Gloucester[395] enacted that the grantee who had committed waste should not only lose the custody, but should, in addition, pay to the heir any balance between the value of the wardship thus forfeited and the total damage. More severe penalties were found necessary. Statute 36 Edward III. chapter 13 enacted that the king’s Escheators (officers who first became prominent towards the close of the reign of Henry III., and who acted in the normal case as guardians of Crown wards), when guilty of waste, should “yield to the heir treble damages.” If the boy was still a minor, his friends might bring a suit on his behalf; or after he was of full age he might bring it on his own account.[396]
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Footnote 394:
3 Edward I. c. 21.
Footnote 395:
6 Edward I. c. 5.
Footnote 396:
Coke, Second Institute, p. 13, enunciates a doctrine at variance with this statute, holding that the heir who suffered damage could not, on coming of age, obtain such triple damages, or indeed any damages at all, if the king had previously taken amends himself. Coke further maintains that even after waste had been committed, the person of the heir was left in the power of the unjust guardian, explaining that when the Charter took away the office “this is understood of the land, and not of the body.” There seems, however, to be no authority for such statements.
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(3) Provision against a recurrence of the waste. It was only fair that reasonable precautions should be taken to prevent the heir who had already suffered hurt, from being similarly abused a second time. John, accordingly, promised to supersede the keeper guilty of waste by appointing as guardians two of the most trustworthy of the free-holders on the heir’s estate. These men, from their local and personal ties to the young heir, might be expected to deal tenderly with his property. The “unknown Charter,” already referred to, proposed a more drastic remedy. Whenever the Crown’s right to a wardship opened, the lands were to be entrusted to four knights of the fief without waiting until damage had been done. This suggestion, if carried out, would have protected the king’s wards, without injury to the legitimate pecuniary interests of the Crown.
CHAPTER FIVE.
Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos, vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de exitibus terre ejusdem; et reddat heredi, cum ad plenam etatem pervenerit, terram suam totam instauratam de carrucis et waynagiis, secundum quod tempus waynagii exiget et exitus terre racionabiliter poterunt sustinere.
The guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, places for live-stock,[397] fishponds, mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and implements of husbandry, according as the season of husbandry shall require, and the issues of the land can reasonably bear.
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Footnote 397:
Vivarium in strictness means a place for keeping live-stock, but probably included the animals also. By Coke, in the Statutes at large, and elsewhere, it is translated “warren”; but that word has its Latin form in warrena. Stubbs’ Glossary to Select Charters (p. 551) renders it as “a fish pond,” but stagnum has that meaning. The Statute Westminster II. (c. 47) speaks of stagnum molendinæ (a mill-pond). The Statute of Merton (c. 11) refers to poachers taken in parcis et vivariis; while Westminster I. (c. 1) forbids ne courge en autri parks, ne pesche en autri vivers, which suggests a change of connotation. Cf. ibid., c. 20.
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These stipulations form the complement, on the positive side, of the purely negative provisions of chapter 4. It was not sufficient to prohibit acts of waste; the guardian must see that the estates were kept in good repair.
I. The Obligations of the Warden of a Lay-fief. It was the duty of every custodian to preserve the lands from neglect, together with all houses, “parks” (a term explained under chapter 47), fishponds, mills, and the other usual items of the equipment of a medieval manor. All outlays required for these purposes formed, in modern language, a first charge on the revenues of the estate, to be deducted before the balance was appropriated by the “grantee,” or paid to the exchequer by the “committee.” It was the guardian’s duty, moreover, to restore the whole to the heir in as good condition as the produce of the land might reasonably permit. Henry’s Charters directed that the guardian should redeliver the land stocked with ploughs “and with all other appointments in at least as good condition as he received it.”[398]
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Footnote 398:
Blackstone, Great Charter, lxxviii. considers this “an indulgence to guardians, by only directing them to deliver up the land ... in as good condition as they found it, not in as good as it would bear.” Sometimes, the heir after coming of age, could not recover his lands at all. The Statute of Marlborough (c. 16) gave such a ward a right to a mort d’ancestor (cf. infra, p. 325) against a mesne lord, but apparently not against the Crown. The Statute of Westminster I. (c. 48) narrates that heirs were often carried off bodily to prevent them raising actions against their guardians.
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Magna Carta did not attempt to abolish wardship, which continued in full force for many centuries, with only a few of its worst abuses somewhat curtailed. The whole subject was regulated in 1549 by the Statute 32 Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the expensive and dilatory procedure of which caused increasing discontent, until an order of both Houses of Parliament, dated 24th February, 1646, abolished it along with “all wardships, liveries, primer seisins, and ouster les mains.”[399] This ordinance was confirmed at the Restoration by the Statute 12 Charles II. c. 24.
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Footnote 399:
See S. R. Gardiner, Documents, p. 207.
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II. Wardships over Vacant Sees. The church had its own grievances, although these took a different form. The Constitutions of Clarendon[400] had stipulated that each great prelate should hold his Crown lands sicut baroniam; and this view ultimately prevailed. It followed that all appropriate feudal burdens affected church fiefs equally with lay fiefs. The lands which formed the temporalities of a see were, however, in a peculiar position, being the property, not of an individual, but of an undying corporation (to use the definite language of a later age). When one bishop or abbot died, a successor of suitable age and worth had at once to be appointed. A minority was thus impossible, and therefore, so it might be argued, wardships could never arise. Rufus objected to what he thought an unfair exemption from a recognized feudal incident. Flambard devised an ingenious substitute for ordinary wardships by keeping sees long vacant, and meantime taking the lands under the guardianship of the Crown. Such practices formed the original ground of quarrel between Anselm and Rufus. Henry I., while renouncing by his Charter all pretensions to exact reliefs, retained his right of wardship, promising merely that vacant sees should neither be sold nor farmed out. Stephen went further, renouncing expressly all wardships over church lands; but Henry II. ignored this concession, and reverted to the practice of his grandfather. In his reign the wardship of the rich properties of vacant sees formed a valuable asset of the exchequer. During a vacancy the Crown drew not only the rents and issues of the soil, but also the various feudal payments which the under-tenants would otherwise have paid to the bishop. The Pipe Roll of 14 Henry II.[401] records sums of £30 and £20 paid into the exchequer by two tenants of the vacant see of Lincoln for six and four knight’s fees respectively.[402]
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Footnote 400:
Article 11: see Select Charters, 139.
Footnote 401:
Cited by the editors of the Dialogus, p. 223.
Footnote 402:
Cf. under c. 43 infra.
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The practice of Henry of Anjou was followed by his sons. John was careful specially to reserve wardships over vacant sees even in that very accommodating charter, dated 21st November, 1214, which surrendered the right of canonical election to the national church. Stephen Langton had either failed to force John to relinquish wardships or else considered such a concession unnecessary now that the king renounced his right to veto church appointments, since wardships over church lands would become unprofitable if elections were never unduly delayed. Whatever the reason, the charter of 1214 did nothing to guard against the abuse of wardships over church lands, and John’s Great Charter was equally silent.[403] The omission was supplied in 1216, when it was directed that the provisions already made applicable to lay fiefs should extend also to vacant sees, with the added proviso that church wardships should never be sold. The charter of Henry III. thus reverted to the exact position defined by the charter of Henry I. The lands of vacant sees might be placed under a “committee,” but never given to a “grantee,” to use Coke’s terms.
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Footnote 403:
C. 46 (see infra) confirmed barons, who had founded abbeys, in their rights of wardship over them during vacancies.
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These provisions were further supplemented by later acts. An Act of 14 Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a vacant see a right to the pre-emption of the wardship at a fair price. If they failed to exercise this, the king’s right to appoint escheators or other keepers was confirmed, but under strict rules as to waste. This is a distinct confirmation of the king’s right to “commit” church lands, although the prohibitions against selling them or farming them out remained still in force.
CHAPTER SIX.
Heredes maritentur absque disparagacione, ita tamen quod, antequam contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius heredis.
Heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice.
The Crown’s right to regulate the marriages of wards had become an intolerable grievance. The origin of this feudal incident and its extension to male as well as female minors have been elsewhere explained.[404] John made a regular traffic in the sale of wards—young maids of fourteen and aged widows alike. No excuse would be accepted. The Pipe Roll of John’s first year[405] records how the chattels of a certain Alice Bertram were taken from her and sold because she refused “to come to marry herself” at the summons of the king. Only two expedients were open to those who objected to mate for life with the men to whom John sold them. They might take the veil, become dead in law, and forfeit their fiefs to escape the burdens inherent in them. Only the cloister could afford them shelter; nowhere in the outer world were they safe. The other way of escape was to outbid objectionable suitors. This was not always possible, for John was predisposed to favour the suit of his foreign gentlemen of fortune, thus befriending his creatures while adding to the slender number of personally loyal tenants-in-capite. John’s greed was insatiable, and brief entries in his Exchequer Rolls condense the story of many a tragedy. In the first year of his reign the widow of Ralph of Cornhill offered 200 marks, with three palfreys and two hawks, that she might not be espoused by Godfrey of Louvain, but remain free to marry whom she chose, and yet keep her lands. This was a case of desperate urgency, since Godfrey, for love of the lady or of her lands, had offered 400 marks for her, if she could show no reason to the contrary. It is satisfactory to learn that in this case the higher bribe was refused, and the lady escaped.[406]
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Footnote 404:
See supra, 75–8.
Footnote 405:
Cited Madox, I. 565.
Footnote 406:
See Rotuli de Oblatis et Finibus, p. 37, and Pipe Roll, 2 John, cited by Madox, I. 515.
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Sometimes John varied his practice by selling, not the woman herself, but the right to sell her. In 1203 Bartholomew de Muleton bought for 400 marks the wardship of the lands and heir of a certain Lambert, along with the widow, to be married to whom he would, yet so that she should not be disparaged.[407]
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Footnote 407:
Pipe Roll, 4 John, cited by Madox, I. 324.
Great stress was naturally placed on exemption from "disparagement"—that is, from forced marriage with one who was not an equal. When William of Scotland, by the treaty of 7th February, 1212, conferred on John the right to marry Prince Alexander to whom he would, the qualification was expressly stated, “but always without disparagement.”[408] Such a proviso was understood where not expressed, and formed apparently the only restriction admitted by the Crown upon this prerogative. It is not surprising, then, to find it specially confirmed in Magna Carta. The Articles of the Barons had, indeed, demanded a further protection—namely, that a royal ward should only be married with the consent of the next of kin. In our text this is softened down to the mere intimation of an intended marriage. The opportunity was thus afforded of protesting against an unsuitable match. Insufficient as the provision was, it was entirely omitted from the reissues of Henry’s reign. The sale of heiresses went on unchecked.
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Footnote 408:
See infra, c. 59.
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Magna Carta made no attempt to define disparagement, but the Statute of Merton[409] gave two examples,—marriage to a villein or to a burgess. This was not an exhaustive list. Littleton, commenting on this statute,[410] adds other illustrations:—“as if the heir that is in ward be married to one who hath but one foot, or but one hand, or who is deformed, decrepit, or having an horrible disease, or else great and continual infirmity, and, if he be an heir male, married to a woman past the age of child-bearing.” Plenty of room was left for forcing on a ward an objectionable husband or wife, who yet could not be proved to come within the law’s definition of “disparagement.” The barons argued in 1258 that an English heiress was disparaged if married to anyone not an Englishman by birth.[411]
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Footnote 409:
20 Henry III. c. 6.
Footnote 410:
Tenures, II. iv. s. 109.
Footnote 411:
See Petition of Barons (Sel. Charters, 383). Gradually the conception of disparagement was expanded, partly from the natural development of legal principles and partly from the increased power the nobility obtained of enforcing their own definitions upon the king. Coke commenting on Littleton (Section 107) mentions four kinds of disparagements: (1) propter vitium animi, e.g. lunatics and others of unsound mind; (2) propter vitium sanguinis, villeins, burgesses, sons of attainted persons, bastards, aliens, or children of aliens; (3) propter vitium corporis, as those who had lost a limb or were diseased or impotent; and (4) propter jacturam privilegii, or such a marriage as would involve loss of “benefit of clergy.” The last clause had no possible connection with the law as it stood in the thirteenth century, but was founded on the fact that marriage with a widow or widower was deemed by the Church in later days an act of bigamy, and therefore involved loss of the benefit of clergy, until this was remedied by the Statute 1 Edward VI. c. 12 (sect. 16).
Was it in the power of the far-seeing father of a prospective heiress by marrying her during his own life-time to render nugatory the Crown’s right to nominate a husband? Not entirely; for the Charter of Henry I. (even when renouncing the more oppressive practice of Rufus) reserved the king’s right to be consulted by the barons before they bestowed the hand of female relations in marriage. Magna Carta is silent on the point, and the presumption is that the existing law was to be maintained.
Bracton[412] explains that law:—No woman with an inheritance could marry without the chief lord’s consent, under pain of losing such inheritance; yet the lord when asked was bound to grant consent, if he failed to show good reasons to the contrary; he could not, however, be compelled to accept homage from an enemy or other unsuitable tenant. The Crown’s rights in such matters were apparently the same as those of any mesne lord.[413]
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Footnote 412:
II. folio 88.
Footnote 413:
For further information on the age at which marriage could be tendered to a ward, and the penalties for refusing, see Thomson, Magna Charta, pp. 170-1.
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CHAPTER SEVEN.
Vidua post mortem mariti sui statim et sine difficultate habeat maritagium et hereditatem suam, nec aliquid det pro dote sua, vel pro maritagio suo, vel hereditate sua quam hereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua.
A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for forty days after his death, within which time her dower shall be assigned to her.
No amount of forethought on the part of a Crown tenant, setting his house in order against his decease, could rescue his widow from the extremely unfortunate position into which his death would necessarily plunge her. He must leave her without adequate protection against the tyranny of the king, who might inflict terrible hardships by a harsh use of rights vested in him for the safeguard of the feudal incidents due to the Crown as overlord. Newly deprived of her natural protector, she was under the immediate necessity of conducting a series of delicate negotiations with a powerful opponent fortified by prerogatives wide and vague. She might indeed, if deprived of her “estovers,” find herself for the moment in actual destitution, until she had made her bargain with the Crown; she had a right, indeed (under normal circumstances) to one-third of the lands of her late husband (her dos rationalis) in addition to any lands she might have brought as a marriage portion, but she could only enter into possession by permission of the king, who had prior claims to hers, and could seize everything by his prerogative of primer seisin.[414] This chapter provides a remedy. Widows shall have their rights without delay, without difficulty, and without payment.
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Footnote 414:
Cf. supra, 78–9.
I. The Widow’s Share of Real Estate. Three words are used:—dos, maritagium, and hereditas.
(1) Dower. A wife’s dower is the portion of her husband’s lands set aside to support her in her widowhood. It was customary from an early date for a bridegroom to make adequate provision for his bride on the day he married her. Such a ceremony, indeed, formed a picturesque feature of the marriage rejoicings, taking place literally at the door of the church, as man and wife returned from the altar. The share of her husband’s land thus set apart for the young wife was known as her dos (or dowry), and would support her if her husband died. In theory the transaction between the spouses partook of the nature of a contract by which they arranged the extent of the provision to be given and accepted. The wife’s rôle, however, was a passive one; her concurrence was assumed. Yet, if no provision was made at all, the law stepped in, on the presumption that the omission had been unintentional on the husband’s part, and fixed the dower at one-third of all his lands.[415]
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Footnote 415:
See Pollock and Maitland, II. 422-3. The ceremony at the church door, when resorted to, was no longer an opportunity of giving material proof of affection to a bride, but a means of cheating her out of what the law considered her legitimate provision, by substituting something of less value.
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John’s Magna Carta contents itself with the brief enactment “that a widow shall have her dower.” The Charter of 1217 goes farther, containing an exact statement of the law as it then stood:—"The widow shall have assigned to her for her dower the third part of all her husband’s land which he had in his lifetime (in vita sua) unless a smaller share had been given her at the door of the church." Lawyers of a later age have by a strained construction of the words in vita sua, made them an absolute protection to a wife against all attempts of her husband to defeat or lessen her dower by alienations granted without her consent during the subsistence of the marriage.[416] Magna Carta contains no warrant for such a proposition, although a later clause (chapter 11) secures the dower lands from attachment by the husband’s creditors, whether Jews or others.
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Footnote 416:
Pollock and Maitland, II. 419.
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(2) Maritagium. It was customary for a land-owner to bestow some share of his property as a marriage portion upon his daughters, that they might not come to their husbands as empty-handed brides. The land so granted was usually relieved from all burdens of service and homage. It was hence known as liberum maritagium, which almost came to be recognized as a separate form of feudal tenure. Grants for this purpose could be made without the consent of the tenant’s expectant heirs, although early English law absolutely prohibited alienation of lands for any other purpose without their consent. Maritagium was thus “a provision for a daughter—or perhaps some other near kinswoman—and her issue.”[417] The husband of the lady was, during the marriage, treated as virtual owner for all practical purposes; but on his death the widow had an indisputable title to lands brought with her “in free marriage.”[418]
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Footnote 417:
See Pollock and Maitland, II. 15-16.
Footnote 418:
Liberum maritagium, considered as a tenure, has various peculiarities. The lady’s husband became the feudal tenant of her father. The issue of the marriage were heirs to the lands and would hold them as tenants of the heir of the donor. For three generations, however, neither service nor homage was due. After the third transmission, the land ceased to be specially “free”; the peculiar tenure came to an end; and the new owner was subject to all the usual burdens of an ordinary tenant.
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The obvious meaning, however, has not always been appreciated. Coke[419] reads the clause as allowing to widows of under-tenants a right denied (by chapter 8) to widows of Crown tenants—namely “freedom to marry where they will without any licence or assent of their lords.” This interpretation is inherently improbable, since the barons at Runnymede desired to place restrictions on their enemy, the king, not upon themselves; and it is opposed to the law of an earlier reign, as expounded by Bracton.[420]
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Footnote 419:
Second Institute, p. 16.
Footnote 420:
See supra, p. 253.
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Daines Barrington[421] invents an imaginary rule of law in order to explain a supposed exception. An ordinary widow, he declares, could not in the normal case marry again before the expiry of a year after her first husband’s death. Some widows, however, were specially privileged. Maritagium was a right conferred on widows of land-owners to cut short the period of mourning imposed on others. This is a complete inversion of the truth; the possession of land always restricted, instead of extending, freedom of marriage. Several later authorities follow Barrington’s mistake.[422]
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Footnote 421:
Observations, pp. 8-10.
Footnote 422:
E.g. Thomson, Magna Charta, p. 172. Dr. Stubbs has his own reading of maritagium, namely, “the right of bestowing in marriage a feudal dependant.” See Glossary to Sel. Charters, p. 545. The word may sometimes bear this meaning, but not in Magna Carta.
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Such mistakes when made by recent writers are the more inexcusable in view of the clear explanation given a century ago by John Reeves,[423] who distinguished between two kinds of marriage portion: liberum maritagium, whence no service whatever was exigible for three generations, and maritagium servitio obnoxium, liable to the usual services from the first, although exempt from homage until after the death of the third heir.[424]
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Footnote 423:
See his History of English Law, I. 121 (3rd ed.).
Footnote 424:
Cf. Ibid. I. 242, where Reeves rightly points out that Coke is mistaken, although he fails to notice the distinction drawn in the passage criticized between the Crown and mesne lords.
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(3) Hereditas. The first two words are thus readily understood: but what is hereditas? Is it simply another name for one of these, or is it something different? It is possibly used to denote estates acquired by the wife, not as a marriage portion, but in any other way, for example by the opening of a succession on the death of someone, her father or other relative, of whom she is the heir.
II. The Widow’s Share of Personal Estate. The chapter of the Charter at present under discussion says nothing as to the widow’s right to any portion of her deceased husband’s goods and chattels. Chapter 26, however, confirms the existing law which secured to her, in the normal case, one third of her husband’s personal estate, as will be more fully explained hereafter.
III. Provision for the Widow’s immediate Needs. Many intricate questions might arise before it was possible to divide the land into aliquot portions and so “assign” the exact one-third due to her. Meanwhile, temporary provision must be made for her support. This was of two kinds: (1) Quarantine. Magna Carta confirmed her right to remain in the family home for a space of forty days. This was known to later lawyers as the widow’s quarantine.[425] The Charter of 1216 notes an exception to the general rule, on which John’s Charter is silent: if the deceased husband’s chief place of residence had been a castle, the widow could not stay there; feudal strongholds were not for women. In such cases, however, so the reissue of 1216 carefully provided, another residence must be immediately substituted. In later days, widows unlawfully deprived of their quarantine were provided with a remedy by means of a writ, known as “de quarentina habenda,” directing the sheriff to take summary procedure to do her right.[426]
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Footnote 425:
The “unknown charter” (see Appendix) specified sixty days, but Magna Carta fixed the period at forty.
Footnote 426:
See Coke, Second Institute, p. 16.
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(2) Estovers of Common. The widow required something more than the protection of a roof; for, until her dower lands had been delivered to her, no portion of the produce of her late husband’s manors could be strictly called her own. The estate was held “in common” between her and her husband’s heir (or between her and the “guardian” of that heir’s estates). It was only fair that, until her rights were ascertained, she should be allowed a reasonable share of the produce. Neither John’s Charter nor the first issue of Henry III. said anything on this head. The reissue of 1217 supplied the omission, expressly confirming the widow of a Crown tenant in the right to rationabile estoverium suum interim de communi. Many explanations of the word estovers (generally used in the plural) might be cited: from Dr. Johnson, who defines it broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it to “firewood.”[427] It was the right to use certain parts of the natural produce of land or other property for the supply of one’s personal or domestic wants. Such rights varied in extent, however; from the general right to a full supply of all things necessary for the maintenance of life, down to the restricted right to take one kind of produce for one specific purpose only.[428]
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Footnote 427:
See Glossary to Select Charters, p. 539: “firewood; originally provision or stuff generally.”
Footnote 428:
Several instances of the wider use of the word may be given. Bracton (III. folio 137) explains that, pending the trial of a man accused of felony, his lands and chattels were set aside by the sheriff until it was determined whether they were to become the king’s property by the conviction of the accused; meanwhile the imprisoned man and his family out of the revenue received “reasonable estovers.” (Cf. infra, c. 32.) The Statute of Gloucester (6 Edward I. c. 4) mentions incidentally one method of stipulating for a return from property alienated, viz., to take the grantee bound to provide the grantor in estovers of meat or clothes. (“A trouver estovers en vivre ou en vesture”). Blackstone again (Commentaries, I. 441) applies the name estovers to the alimony or allowance made to a divorced woman "for her support out of the husband’s estate." Sometimes, however, the word was used in a more restricted sense. Coke (Second Institute, p. 17) says, "when estovers are restrained to woods, it signifieth housebote, hedgebote, and ploughbote,"—that is, such timber as was required for repairing houses, hedges, and ploughs. Apparently it had an even more restricted scope when used to describe the right of those who dwelt in the king’s forests, viz., to take dead timber as firewood. (Cf. infra, c. 44.)
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It seems natural to infer that in this passage of Magna Carta the word bears its wider signification. Such was Coke’s view,[429] who held that it implied the widow’s right to “sustenance” of every kind, including the right to kill such oxen on the manor as she required for food. Estovers “of common” should thus be read as extending the widow’s right of consumption for her own and her household’s use over every form of produce held “in common” by her and the heir’s guardian prior to a final division.[430]
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Footnote 429:
Second Institute, p. 17.
Footnote 430:
There seems no reason to restrict her estovers to a right over “commons,” in the sense of pastures and woods held “in common” by her late husband and the villeins of his manor. Some such meaning, indeed, attaches to the phrase “dower of estovers” met with in later reigns, e.g. in Year Book of 2 Edward II. (Selden Society), p. 58, where it was held that such a right (claimed as a permanent part of dower) did not belong to a widow.
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CHAPTER EIGHT.
Nulla vidua distringatur ad se maritandum dum voluerit vivere sine marito; ita tamen quod securitatem faciat quod se non maritabit sine assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo tenuerit, si de alio tenuerit.
Let no widow be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another.
Wealthy ladies, who were wise, were glad to escape with their children from John’s clutches by agreeing to buy up all the Crown’s oppressive rights for a lump sum. In the very year of Magna Carta, Margaret, the widow of Robert fitz Roger, paid £1000;[431] and a few years earlier Petronilla, Countess of Leicester, expended as much as 4000 marks.[432] Though the circumstances of each of these cases seem to have been peculiar, the Pipe Rolls contain numerous smaller sums; in 1206 Juliana, widow of John of Kilpec, accounts for 50 marks and a palfrey.[433] Horses, dogs, and falcons were frequently given in addition to money fines, and testify eloquently to the greed of the king, the anxiety of the victims, and the extortionate nature of the whole system. In return, formal charters were usually obtained, a good example of which is one granted to Alice, countess of Warwick, dated 13th January, 1205,[434] containing many concessions; among others that she should not be forced to marry; that she should be sole guardian of her sons; that she should have one-third part of her late husband’s lands as her reasonable dower; and that she should be quit from attendance at the courts of the shire and of the hundred, and from payment of sheriff’s aids during her widowhood. Another charter of 20th April, 1206, shows what a widow had to expect if she failed to make her bargain with the Crown. John granted to Richard Fleming, an alien as his name implies, and presumably one of his not too reputable mercenaries, the wardship of the lands of the deceased Richard Grenvill with the rights of marriage of the widow and children.[435]
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Footnote 431:
See Pipe Roll of 16 John, cited Madox I. 491.
Footnote 432:
See Pipe Roll of 6 John, cited Madox I. 488.
Footnote 433:
See Pipe Roll of 6 John, cited Madox I. 488.
Footnote 434:
New Rymer, I. 91.
Footnote 435:
See New Rymer, I. 92.
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Magna Carta sought to substitute a general rule of law for the provisions of these private charters purchased by individuals at ruinous expenditure. It contained no startling innovations, but only repeated at greater length the promises made (and never kept) by Henry I. in the relative part of clause 4 of his coronation charter. No widow was to be constrained to marry again against her will. This liberty must not be used, however, to the prejudice of the Crown’s lawful rights. Although the widow need not marry as a second husband the man chosen by the king without her consent, neither could she marry without the king’s consent the man of her own choice. Magna Carta specially provided that she must find security to this effect, an annoying, but not unfair, stipulation. The Crown, in later days, compelled the widow, when having her dower assigned to her in Chancery, to swear not to marry without licence; and if she broke her oath, she had to pay a fine, which was finally fixed at one year’s value of her dower.[436]
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Footnote 436:
See Coke, Second Institute, 18.
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CHAPTER NINE.
Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad solucionem debiti; et si capitalis debitor defecerit in solucione debiti, non habens unde solvat, plegii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris, donec sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem plegios.
Neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties.
The Charter now passes to another group of grievances. Chapters 9 to 11 treat of the kindred topics of debts, usury, and the Jews, and should be read in connection with each other, and with chapter 26, which regulates the procedure for attaching the personal estate of deceased Crown tenants who were also Crown debtors. The present chapter, although quite general in its terms, had special reference to cases where the Crown was the creditor; while the two following chapters treated more particularly of debts contracted to Jews or other money lenders.
The fact that John’s subjects owed debts to his exchequer did not, of course, imply that they had borrowed money from the king. The sums entered as due in the Rolls of the Exchequer represented obligations which had been incurred in many different ways. What with feudal incidents and scutages, and indiscriminate fines, so heavy in amount that they could only be paid by instalments, a large proportion of Englishmen must have been permanently indebted to the Crown. At John’s accession most of the northern barons still owed the scutages demanded by Richard. John remitted none of the arrears, while imposing new burdens of his own: the attempts made to collect these debts intensified the friction between John and his barons.[437] It was, further, the Crown’s practice wherever possible, to make its debtors find sureties for their debts, thus widening the circle of those liable to distraint, while the officers who enforced payment were guilty of irregularities, which became the cloaks of grave abuses.
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Footnote 437:
See supra, p. 89.
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Three equitable rules were laid down. (1) The personal estate of a debtor must be exhausted before his real estate or its revenues were attacked. To take away his land might deprive him ultimately of his means of livelihood, since the chattels left to him could not yield a permanent revenue.[438] The rule here laid down by Magna Carta has not found a place in modern systems of law, which usually leave the option with the creditor. (2) The estate (both real and personal) of the chief debtor had to be exhausted before proceedings could be instituted against his sureties. Magna Carta thus enunciated in English law a rule which has found favour in most systems of jurisprudence. The man who is only a surety for another’s debt is entitled to immunity until the creditor has taken all reasonable steps against the principal debtor. Such a right is known to the civil law as beneficium ordinis, and to modern Scots law as the “benefit of discussion.” (3) If these sureties had, after all, to pay the debt in whole or in part, they were allowed “a right of relief” against the principal debtor, being put in possession of his lands and rents. This rule has some analogy with the equitable principle of modern law, which gives to the surety who has paid his principal’s debt, the right to whatever property the creditor held in security of that debt.
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Footnote 438:
The Dialogus de Scaccario, II. xiv., had, half a century earlier, laid down rules even more favourable to the debtor in two respects: (a) the order in which moveables should be sold was prescribed; and (b) certain chattels were absolutely reserved to the debtor, e.g. food prepared for use; and, in the case of a knight, his horse with its equipment.
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Even when the Crown’s bailiffs obeyed Magna Carta by leaving land alone when chattels were available, they might still wantonly inflict terrible hardship upon debtors. Sometimes they seized goods valuable out of all proportion to the debt; and an Act of 1266[439] forbade this practice when the disproportion was “outrageous.” Sometimes they attempted to extort prompt payment or to ruin their victim by selecting whatever chattel was most indispensable to him. Oxen were taken from the plough and allowed to die of starvation and neglect. The practice of the exchequer, in the days of Henry II., had been more considerate; oxen were to be spared as far as possible where other personal effects were available.[440] John’s charter has no such humane provision,[441] and the abuse continued. The Act of 1266, already cited, forbade officers to chase away the owner who came to feed his impounded cattle at his own expense. The Articuli super cartas[442] went further; prohibiting the seizure of beasts of the plough altogether so long as other effects might be attached of sufficient value to satisfy the debt.[443]
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Footnote 439:
51 Henry III., stat. 4 (among “statutes of uncertain date” in Statutes of Realm, I. 197).
Footnote 440:
See Dialogus de Scaccario, II. xiv.: “Mobilia cujusque primo vendantur; bobus autem arantibus, per quos agricultura solet exerceri, quantum poterint parcant” (p. 148).
Footnote 441:
Cf., however, the rule as to amercements in c. 20.
Footnote 442:
28 Edward I. c. 12. See also Statute of Marlborough, 52 Henry III. c. 15.
Footnote 443:
Henry’s reissues make two small additions explaining certain points of detail: (a) the words “et ipse debitor paratus sit inde satisfacere” precede the clause giving sureties exemption; and (b) the sureties are declared liable to distraint, not merely when the chief debtor has nothing, but also when he can pay, but will not, “aut reddere nolit cum possit.”
CHAPTER TEN.
Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit in manus nostras, nos non capiemus nisi catallum contentum in carta.
If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold;[444] and if the debt fall into our hands, we will not take anything except the principal sum[445] contained in the bond.
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Footnote 444:
The words “de quocumque teneat” include both Crown tenants and under-tenants, and suggest that only freeholders were to receive protection from this clause.
Footnote 445:
Catallum and lucrum were the technical words used for “principal” and “interest” respectively in bonds and other formal documents. See, e.g. Round, Ancient Charters (Pipe Roll Society, Vol. X.) No. 51, and John’s Charter to the Jews, Rot. Chart., p. 93.
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The taking of usury, denied by law to Christians, was carried on by Jews under great disadvantages and risks; and the rates of interest were proportionately high, ranging in normal cases from two to four pence per pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.[446] During his nonage a ward had nothing wherewith to discharge either principal or interest, since he who had the wardship drew the revenue. At the end of a long minority an heir would have found the richest estates swallowed up by a debt which had increased automatically ten or twenty-fold.[447]
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Footnote 446:
See Pollock and Maitland, I. 452, and Round’s Ancient Charters, notes to Charter No. 51.
Footnote 447:
The Crown was sometimes called in to enable a creditor, overwhelmed by the accumulation of interest, to come to a settlement with his creditors. In 1199 Geoffrey de Neville gave a palfrey to the king to have his aid “in making a moderate fine with those Jews to whom he was indebted.” See Rotuli de Finibus, p. 40. Ought we to view John’s intervention as an attempt to arrange a reasonable composition with unreasonable usurers, or was it simply a conspiracy to cheat Geoffrey’s creditors?
Magna Carta prevented this great injustice to the ward; but, in doing so, inflicted, according to modern standards, some injustice on the money-lenders. During the minority no interest at all, it was provided, should accrue to Jew or other usurer; while, if the debt passed to the Crown, the king must not use his prerogative to extort more than a private debtor might; he must confine himself to the principal sum specified in the document of debt. The provision that no interest should run during minorities was confirmed by the Statute of Merton,[448] which made it clear, however, that its provisions should not operate as a discharge of the principal sum or of the interest which had accrued before the ancestor’s death. The Statute of Jewry, of uncertain date,[449] made interest irrecoverable by legal process. All previous acts against usury were repealed by the statute 37 Henry VIII. c. 9, which, however, forbade the exaction of interest at a higher rate than 10 per cent., and this remained the legal rate until reduced to 8 per cent, by 21 James I. c. 17. Money-lending and the usury laws are subjects closely bound up with the repressive measures against the Jews.
Footnote 448:
20 Henry III. c. 5.
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Footnote 449:
Statutes of Realm, I. 221.
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I. The History of the Jews in England. The policy of the Crown towards those aliens of the Hebrew race who sought its protection varied at different times, and three periods may be distinguished. From the Norman Conquest to the coronation of Richard I. the Jews were fleeced and tolerated; during the reigns of Richard and John and the minority of Henry III. they were fleeced and protected; and finally they were fleeced and persecuted, this last stage extending from the formation of the alliance between Henry and Innocent IV. down to the ordinance of 1290, which banished in perpetuity all Jews from England. The details of this long story of hardship and oppression, tempered fitfully by royal clemency, which had always to be well paid for, can here be glanced at only in the barest outline. There were Jews in England before the Norman Conquest; but the first great influx came in the reign of Rufus, whose financial genius recognized in them an instrument for his gain, and who would the more gladly protect them, as likely to prove a thorn in the side of his enemy the Church. A second influx resulted from the persecution of Israelites on the Continent of Europe, consequent on the failure of the first Crusade. This new alien immigration seems to have excited mistrust in England, and led to the disarming of all Jews in 1181, a measure which left them at the mercy of the Christian rabble.
Accordingly, when a disturbance occurred at the coronation of Richard I., on 3rd September, 1189, owing to the imprudence of some officious Jews, a general massacre took place in London, while York and other towns were not slow to follow the example. The king was moved to anger, not so much by the sufferings of the Jews, as by the destruction of their bonds, since that indirectly injured the Crown; for the more the Jews had, the more could be extorted from them, and when the written bond had been burned, no evidence of the debt remained. Richard, returning from his captivity a few years later, in urgent need of money, determined to prevent a repetition of such interference with a valuable source of revenue. His motive was selfish, but that was no reason why the Israelites should not pay for a measure designed for their own protection. Assembled at Nottingham they granted a liberal aid, in return for a new expedient devised to secure their bonds. This scheme, for the details of which Richard was probably indebted to the genius of his great justiciar, archbishop Hubert Walter, was of a comprehensive and practical character. In London, York, and other important cities, offices or bureaus were established under the Crown’s protection, containing treasure chests, called archae, fitted with triple locks, to be opened only at stated intervals in the presence of special custodians, known as chirographers, who kept the keys. These custodians were usually four in number, two Christians and two Jews, chosen by juries specially summoned for that purpose by the sheriff of the county, and they were obliged to find sureties that they would faithfully perform their important functions. Only in their presence could loans be validly contracted between Jews and Christians; and it was their duty to see the terms of all such bargains reduced to writing in a regular prescribed form in duplicate copies. No contract was binding unless a written copy or chirograph had been preserved in one or other of those repositories or arks, which thus served every purpose of a modern register, and other purposes as well. If the money-lender suffered violence and was robbed of his copy of the bond, the debtor was still held to his obligations by the duplicate which remained. If the Jew and all his relatives were slain, even then the debtor did not escape, but was confronted by a new and more powerful creditor, the king himself, armed with the chirograph. Lists of all transactions were preserved, and all acquittances and assignments of debts, known from their Hebrew name as “starrs,” had also to be carefully enrolled.[450] Minute and stringent rules, codified by Hubert Walter in the terms of a written commission, were issued to the judges when starting on their circuit in September, 1194.[451]
Footnote 450:
Cf. J. M. Rigg, Sel. Pleas of the Jewish Exchequer, p. xix.
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Footnote 451:
See chapter 24 of the Forma procedendi in placitis coronae regis, cited in Sel. Charters, 262.
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If this cunningly-devised system prevented the Christian debtor from evading his obligations, it also placed the Jewish creditor completely at the mercy of the Crown; for the exact wealth of every Jew could be accurately ascertained from a scrutiny of the contents of the archae. The king’s officials were enabled to judge to a penny how much it was possible to wring from the coffers of the Jews, whose bonds, moreover, could be conveniently attached until they paid the tallage demanded. The custom of fixing on royal castles as the places for keeping these arks, probably explains the origin of the special jurisdiction exercised over the Jews by the king’s constables (“qui turres nostras custodierunt”).[452] In the dungeons of their strongholds horrible engines were at hand for enforcing obedience to their awards. Such jurisdiction, however, extended legitimately over trivial debts only.[453] All important pleas were reserved for the officials of the exchequer of the Jews, a special government department, which controlled and regulated the whole procedure. Evidences of the existence of this separate exchequer have been traced back to 1198, although no record has been found of a date prior to 1218.[454] John, while despising the Jews, was not slow to realize that in them the Crown possessed an asset of great value. It was his policy to protect their wealth as a reservoir from which he might draw in time of need, contenting himself meanwhile with comparatively moderate sums. Thus, by a charter dated 10th April, 1201, he took 4000 marks in return for confirming their privileges; and he obtained a second payment of a similar amount after his rupture with Rome. The charter of 1201 was only a confirmation of rights already enjoyed by all English Jews in virtue of the liberal interpretation put upon the terms of an earlier charter which had been granted by Henry I. to a particular father in Israel with his household, but subsequently extended, with the tacit concurrence of the Crown, to the whole Hebrew race. Under John’s charter they enjoyed valuable and definite privileges, which, while leaving them completely in the royal power, exempted them from all jurisdictions except those of the king and his castellans; while, if a Christian brought a complaint against a Jew, it was to be judged by the peers of that Jew.[455]
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Footnote 452:
See John’s Charter to the Jews of 10th April, 1201, in Rotuli Chartarum, p. 93.
Footnote 453:
See Pollock and Maitland, I. 453, n.
Footnote 454:
Rigg, ibid., xx.
Footnote 455:
“Judicata sit per pares Judei.” See Rot. Chart., I. 93.
When a repetition of the massacre which had disgraced his brother’s coronation threatened to take place in 1203, John promptly ordered the mayor and barons of London to suppress all such attempts. In terms contemptuous alike to the Londoners and to the Jews his writ declared that his promise of protection, “even though granted to a dog,” must be held inviolate.[456] Protection was accorded to them, however, only that they might furnish a richer booty to the Crown, when the proper occasion arrived. Suddenly John issued orders for a wholesale arrest of the Jews throughout England. The most wealthy members of their community were brought together at Bristol, and, on 1st November, 1210, were compelled to give a reluctant consent to a general tallage at the enormous sum of 66,000 marks. Apparently this amount had been fixed as the result of an exaggerated estimate of the contents of the archae, and was more than they could afford to pay. The methods adopted by John’s castellans to extort the arrears of the amount are well-known, especially in the case of the unfortunate Jew of Bristol, from whom seven teeth were extracted, one each day, until he consented to pay the sum demanded.[457]
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Footnote 456:
Rot. Pat., I. p. 33, and New Rymer, I. 89. The date is 29th July, 1203.
Footnote 457:
See Rigg, Sel. Pleas of the Jewish Exchequer, xxiv.
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It was doubly hard that the race thus plundered and tortured by the king should be subjected to harsh treatment by the king’s enemies on the ground that they were pampered protégés of the Crown. Yet such was the case: on Sunday, 17th May, 1215, when the insurgents on their way to Runnymede entered London, they robbed and murdered the Jews, using the stones of their houses to fortify the city walls.[458] It is not to be wondered then that the same insurgents in forcing on King John the demands which formed the basis of Magna Carta, included provisions against usury.
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Footnote 458:
See Miss Morgate, John Lackland, p. 230.
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The advisers of the young Henry in 1216 omitted these clauses, but not from love of the Jews. They were unwilling to impair so useful a financial resource, which has been compared to a sponge which slowly absorbed the wealth of the nation to be quickly squeezed dry again by the king. The Jews were always willing to disgorge a portion of their gains in return for protection in the rest, even of a contemptuous and intermittent kind; but their lot became hard indeed when Henry III., urged by popular clamour and the wishes of the Pope, began a course of active persecution, without relaxing the rigour of those royal exactions which had previously been the price of protection. In 1253, a severe ordinance inflicted a long list of vexatious regulations on the Hebrews, almost converting their quarters in each great city into ghettos, like those of the Continent of Europe. This was merely the commencement of a series of oppressive measures, the natural outcome of the growing hatred with which Christians regarded Jews,—a result partly of the heated imagination of the rabble, ready to believe unauthenticated stories of the crucifixion of Christian children, and partly of the fact that rich Jews, in spite of all persecution, had possessed themselves of the landed estates of freeholders and nobles and claimed to act as lords of Christian tenants, enjoying wardships, escheats, and advowsons, as any Christian baron might have done. The scope of this enquiry excludes any detailed account of the stages through which repressive legislation passed, until the lot of the Jews in England became intolerable. The Statute of Jewry, however,[459] was of exceptional importance; taking from usurers the right to recover interest by legal process, and limiting execution for the principal to one half of the debtor’s lands and chattels. In return some temporary concessions were granted. One by one, all these privileges were withdrawn, until the end came in 1290 with the issue of a decree of perpetual banishment by Edward I., who was compelled to sacrifice the cherished right of keeping a royal preserve of Jews in deference to the culmination of national prejudice in a storm of unreasoning hate.
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Footnote 459:
Statutes of Realm, I. 221.
II. Legal Position of the Jews. All through these vicissitudes of fortune the legal status of the Jews had remained unchanged in all essentials. Their position was doubly hard; they were plundered by the Crown and persecuted by the populace. If John saved them from being robbed by his Christian subjects, it was that they might be better worth the robbing by a Christian king. Yet, for this protection, at once fitful and interested, the Jews had to pay a heavy price; not only were they liable to be tallaged arbitrarily at the king’s will, without limit and without appeal, but they were hated by rich and poor as the king’s allies. Such feelings would of themselves account for the unsympathetic treatment accorded to money-lenders by Magna Carta; two other reasons contributed. All usury was looked on in the Middle Ages as immoral (although illegal only for Christians), while excessive interest was habitually exacted.
The feudal scheme of society had no place for Jews and afforded them no protection. Not only did they share the disabilities common to all aliens, but these were not in their case mitigated by the protection extended to other foreigners by their own sovereigns and by the Church. As exiles in a foreign land, exposed to the attacks of a hostile mob, they were forced to rely absolutely on the only power strong enough to protect them, the arm of the king. The Jews became the mere serfs, the perquisites or chattels of the Crown, in much the same way as the villeins became the serfs or chattels of their lords. Rights they might have against others by royal sufferance, but they had no legal remedy against their master. In the words of Bracton,[460] “the Jew could have nothing of his own, for whatever he acquired, he acquired not for himself but for the king.” His property was his merely by royal courtesy, not under protection of the law. When he died, his relations had no legal title to succeed to his mortgages, goods, or money; the exchequer, fortified by an intimate knowledge of the extent of his wealth (for that consisted chiefly in registered bonds), stepped into possession and could do what it pleased. The king usually, indeed, in practice contented himself with one-third of the whole; but if the relations of the deceased Jew received less than the balance of two-thirds, they would be well advised to offer no remonstrance. The Crown did not admit a legal obligation; and there was no one either powerful enough, or interested enough, to compel the fulfilment of the tacit understanding which restricted the royal claims. 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.
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Footnote 460:
Folio, 386b.
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CHAPTER ELEVEN.
Et si quis moriatur, et debitum debeat Judeis, uxor ejus habeat dotem suam, et nichil reddat de debito illo; et si liberi ipsius defuncti qui fuerint infra etatem remanserint, provideantur eis necessaria secundum tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo servicio dominorum; simili modo fiat de debitis que debentur aliis quam Judeis.
And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews.
If the preceding chapter deprived Jews of part of the interest they claimed, the present one deprived them also in certain circumstances of part of the security on which they had lent the principal. The widow’s dower lands were discharged from her husband’s debts, only two-thirds of the original security thus remaining under the mortgage. Even this must submit to a prior claim, namely the right of the debtor’s minor children to such “necessaries” as befitted their station in life. Magna Carta, at the same time, with characteristic care for feudal rights, provided that the full service due to lords of fiefs must not be prejudiced, whoever suffered loss. Finally, these rudiments of a law of bankruptcy were made applicable to Gentile creditors equally as to Jews. These provisions, with others injuriously affecting the royal revenue, were omitted in 1216, not to be restored in future charters: but they were re-enacted in their essential principle, though not in detail, by the Statute of Jewry, which limited a creditor’s rights of execution to one moiety of his debtor’s lands and chattels.
CHAPTER TWELVE.
Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad hec non fiat nisi racionabile auxilium: simili modo fiat de auxiliis de civitate Londonie.
No scutage nor aid shall be imposed in our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the citizens of London.
This is a famous clause, greatly valued at the time it was framed because of its precise terms and narrow scope (which made evasion difficult), and even more highly valued in after days for exactly opposite reasons. It came indeed to be interpreted in a broad general sense by enthusiasts who, with the fully-developed British constitution before them, read the clause as enunciating the modern doctrine that the Crown can impose no financial burden whatsoever on the people without consent of Parliament. Before discussing how far such an estimate is justified, it will be necessary to examine the historical context, with special reference to two classes of John’s subjects; his feudal tenants, and the citizens of London respectively.
I. Protection of Crown Tenants from arbitrary Exactions. The pecuniary obligations of the barons may be arranged in two groups according as they depended on the king’s own actions, or were determined by circumstances which lay beyond the royal control. Payments of the former type (such as reliefs and amercements), exigible only at fixed dates or on the occurrence of specific events, were treated of elsewhere in Magna Carta. The present chapter sought to prevent John from extorting additional payments either absolutely at his own discretion, or because of situations which he had purposely created as excuses for demanding money. The entire field of such arbitrary feudal dues was covered by the words “scutages” and “extraordinary aids,”[461] the use of which protected the barons from every sort of compulsory payment which might be demanded by the king at his own discretion.
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Footnote 461:
“Extraordinary” is here applied to all aids other than the three normal ones which, falling due each on a definite occasion, come under the opposite group of fixed payments.
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(1) Scutage. The development of the system described by this name has been traced in the Historical Introduction.[462] Used at first as an expedient for substituting, in the Crown’s option, money payments for military service, it became, under John, a regular source of revenue, imposed almost every year on one pretext or another, while it was levied at an increased rate, and under conditions of a vexatious and burdensome nature. If any one cause contributed, more than the others, to the rebellion which culminated at Runnymede, it was John’s method of imposing scutages. This chapter, then, attempted to strike at the common root from which many grievances grew. The Crown was no longer to be left sole judge of the occasions on which a scutage might be demanded. “The common consent (or counsel) of the realm” must first be obtained. If this provision had been carried into practice, it would have removed the supreme control of the system of scutages from the Crown which received the money, to the Crown tenants who paid it. This truly radical remedy included the remedy of all minor abuses as well, since the collective body of barons who could refuse payment unconditionally, might a fortiori make grants under such conditions as they chose. Henceforward it would lie with them to say, on each occasion, whether the old normal 20s. per knight’s fee should be superseded by some other rate, either higher or lower. This provision was never enforced, being omitted altogether from the reissue of 1216, while the clause substituted for it in the Charter of 1217 took an entirely different form.[463]
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Footnote 462:
See supra, 86–93.
Footnote 463:
See supra, 172–3.
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(2) Feudal aids. It was recognized from an early date that in emergencies feudal vassals ought to contribute to their lord’s support in proportion to the extent of their holdings. Such payments were known as aids, and were originally supposed to be free-will offerings.[464] By John’s reign they had fallen into two groups—ordinary and extraordinary. The former, three in number, were only dealt with incidentally by the Charter.[465] It is with the “extraordinary” aids that this chapter specially occupies itself. These are placed in the same position as scutages: the Crown cannot exact either, “unless by common counsel of the realm.”
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Footnote 464:
Cf. supra, 80–2.
Footnote 465:
These three aids were carefully specified, and a reasonable rate was stipulated for, but not defined. In this respect the treatment here accorded to aids is less satisfactory than that of reliefs in chapter 2, which carefully defined the amount to be paid. It is probable that the framers of the present chapter relied on existing usage, which seems to have regarded the normal aid as one-fifth of the normal relief, i.e. as 20s. per knight’s fee. An alternative explanation is also possible, that the same “common counsel” which had the right to veto extraordinary aids, was also expected to determine the reasonable amount of the ordinary aids.
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II. Protection of Citizens of London from arbitrary Exactions. Some attempt was made to protect the men of London, as well as the Crown tenants, from John’s demands for money. The insurgent leaders in this way discharged part of their debt to an ally with special claims upon their gratitude.[466] The Articles of the Barons had contained several important provisions affecting the capital; and these were embodied in the Charter in slightly altered terms, which suggest some influence at work not altogether friendly to the citizens.[467] The present clause of the completed charter, for example, uses only one word, “aids,” where the 32nd of the Articles of the Barons had referred to “tallages and aids.” There is no evidence to show whether the omission had been deliberately planned, or was merely the result of inadvertence; and the ambiguity inherent in both words makes it dangerous to hazard a dogmatic opinion on the practical effect of the alteration. Yet a clearly-marked line can be traced between the respective meanings of the two terms when they are technically used.
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Footnote 466:
See supra, p. 42.
Footnote 467:
See article 23 (which became c. 33), article 31 (c. 41), and article 32 (cc. 12 and 13), and cf. supra, pp. 140-1. Whether article 12 (c. 35) was more a benefit to, than a restraint upon, traders seems doubtful.
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(1) “Aid” is the vaguer word, applicable to every payment which can be regarded as in any sense a free-will offering. It embraced gifts to the Crown, whether from prelate or burgess or feudal baron. London was stimulated towards acts of generosity by kings of England both before and after John. There were times when “voluntary” aids, like the “benevolences” of Tudor days, could not safely be withheld.
(2) “Tallage” was a tax levied at a feudal lord’s arbitrary will upon more or less servile dependants, who had neither power nor right to refuse. The frequency of these exactions and the sums taken depended solely on the lord’s caprice, restrained by no law, but only by such limits as an enlightened self-interest or regard for public opinion might dictate. Liability to arbitrary tallage was thus one of the chief marks of an unfree status, and was contrasted with the impositions levied on those freeholders who held by knight’s service, by socage, or by frankalmoin. The owner of the smallest manor, like the owner of the greatest barony, might tallage his own villeins; and the king had a similar privilege over a wider field. His rights extended even over civic communities who held royal charters, since towns were theoretically on the royal demesne, and therefore liable to tallage. The great city of London, in spite of its growing wealth, its political importance, and its list of chartered privileges, still shared this liability.[468]
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Footnote 468:
This statement, for which evidence is given infra, is not always admitted. Taswell-Langmead, Eng. Const. Hist., p. 107, says “The city of London can never have been regarded as a demesne of the Crown.”
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(3) Comparison of tallage and aid. The tallage, as a forced payment, thus differed fundamentally from the nominally free “aid,” while two minor points of difference may also be noted. In arranging an aid the givers usually suggested the amount, though the king might reject the offer as insufficient; while the amount of a tallage, on the other hand, was arbitrarily fixed by the Crown. Further, while the aid granted by a community was a joint offering which the citizens assessed and collected by their own officers, and for which they admitted a collective responsibility, the Crown itself allocated on whom it pleased the particular sums of tallage to be paid by each individual, no joint liability being admitted by those who had to pay. It was obviously to the advantage of a borough to forestall, by the present of a liberal aid, the Crown’s anticipated demand for a tallage, for the hated tax-gatherer was thus kept outside the city gates. An aid was also more to the king’s advantage than a tallage of equal amount. Not only was he saved the trouble, expense, and delay of the collection, but he obviated risk of loss through the insolvency of some of the individuals fixed upon.
A story told by Madox[469] brings out the contrast. A dispute had arisen between the king and the Londoners. To Henry’s demand for 3000 marks of “tallage” they at first replied by offering 2000 marks of “aid,” which the king refused. The citizens then denied liability to tallage altogether, but were confronted with entries in Exchequer and Chancery Rolls which entirely contradicted their audacious contention. On the morrow the mayor and citizens acknowledged that they were talliable, and gave the king the sum he demanded.
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Footnote 469:
I. 712, citing Mem. Roll 39 Henry III.
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(4) Effects of the omission of the word “tallage” from Magna Carta. As the two words appearing in the Articles of the Barons had well-recognized differences of meaning, it is unlikely that the omission of one of them from the Charter was regarded as a purely verbal change. John would readily enough dispense with the right to exact “aids” from the wealthy traders of his capital, if he still preserved his privilege of tallaging them at pleasure. The omission was perhaps deliberately made in deference to John’s strong feeling on a point which did not personally affect the barons.[470] Another omission should be noted. The Articles had extended protection not only to Londoners, but also “to citizens of other places who thence have their liberties,” meaning the towns whose chartered privileges had been modelled on those of the metropolis. Magna Carta completely ignored, in this connection, all towns except London.[471]
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Footnote 470:
Alternative explanations are possible, e.g. that the prelates, accustomed to tallage their own dependants, used their influence successfully to combat this innovation as “the thin end of the wedge.”
Footnote 471:
It might possibly be argued that the last clause of chapter 13 extending to all towns a confirmation of liberties and customs, was intended to embrace this provision as to aids. If so, the draftsman has expressed himself clumsily.
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(5) The nature of the protection afforded by Magna Carta. The arrangement of the present chapter is peculiar. After treating fully of the abuses of Crown tenants, the case of the Londoners is thrown in carelessly in a few words: “In like manner it shall be done concerning aids from the citizens of London.” Various interpretations of the words “simili modo” are possible. High authorities suggest that the clause means no more than that aids taken from London, like ordinary aids taken from Crown tenants, must be “reasonable.”[472] If this is so, a criterion of reasonableness different from that applicable to knights’ fees became necessary; and this would have been hard to find.[473]
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Footnote 472:
Such is the opinion expressed in the Lords’ Report on the Dignity of a Peer, I. 65.
Footnote 473:
In 1168, when Henry II. took an aid for the marriage of his daughter, London contributed £617 16s. 8d., which might afford a precedent for a “reasonable” aid. See Pipe Roll, 14 Henry II., cited Madox, I. 585.
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It is equally probable, however, that the intention was to render the same consent necessary to the validity of aids, asked from London, as had previously been stipulated in the case of scutages from tenants in chief. If this is so, then the method provided in chapter 14 for taking “the common counsel of the realm” was peculiarly ill-adapted to secure to the men of London any effective voice in taxing themselves. The necessity for the consent of an exclusively baronial assembly could not adequately protect the Londoners, whose essentially different interests were unrepresented.
Subsequent history casts no light on the original intention of this clause; no occasion of testing its meaning ever occurred, the entire chapter of which it forms part having been omitted from all subsequent issues of the Charter.
(6) Later history of the Crown’s right to tallage the towns. Magna Carta, even in its original form, did not deprive the king of his right to tallage London, like any other part of his ancient demesne; and the Crown continued quite legally and almost without question to exercise this prerogative at intervals from 1215 until 1340. It has sometimes been maintained, indeed, that the Confirmatio Cartarum of 1297 was intended to abolish this prerogative, and it is true, that a document once considered as an authoritative version of the Confirmatio bore the suggestive title of De tallagio non concedendo. It is now well known that the latter document is quite unauthentic; while, if the confirmatio itself was intended to relieve the towns from tallages taken without their consent, it signally failed. Edward III. occasionally exacted tallages from London and other towns. His parliaments, however, sought to prohibit this, and succeeded, in 1340, in passing a statute which abolished, in words peculiarly wide and categorical, unparliamentary taxation of every kind whatsoever. This act, which is sometimes styled by modern writers “the real statutum de tallagio non concedendo,” is held by Dr. Stubbs to have conclusively abolished inter alia the Crown’s right of tallage.[474] This finally settled the law, but did not prevent the king from trying to break that law. In subsequent years Edward III. frequently disregarded the restriction thus placed upon his financial resources, and with varying success. He rarely did so, however, without meeting protests; and the rule of law laid down in the act of 1340 was never repealed.
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Footnote 474:
See Const. Hist., II. 548. “Of the scope of this enactment there can be no doubt; it must have been intended to cover every species of tax not authorised by parliament, and ... it seems to have had the effect of abolishing the royal prerogative of tallaging demesne.”
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III. Magna Carta and the Theory of Parliamentary Taxation. It is a commonplace of our text-books that chapters 12 and 14 taken together amount to the Crown’s absolute surrender of all powers of arbitrary taxation, and even that they enunciate a general doctrine of the nation’s right to tax itself.[475] Yet the very idea of “taxation” in its abstract form, as opposed to specific tolls and tallages levied on definite things or individuals, is essentially modern. The doctrine of the day was that the king in normal times ought “to live of his own,” like any other land-owning gentleman. A regular scheme of “taxation” to meet the ordinary expenses of government was undreamt of. It is too much to suppose, then, that our ancestors in 1215 sought to abolish something which, strictly speaking, did not exist. The famous clause treats, not of “taxation” in the abstract, but of the scutages and aids already discussed. It does not concern itself with the rights of Englishmen as such, but chiefly with the interests of those who held freeholds of the Crown, and incidentally and inadequately with those of the citizens of London. Several considerations place this beyond reasonable doubt.
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Footnote 475:
E.g. Taswell-Langmead, Engl. Const. Hist., 106, and Anson, Law and Custom of the Const., I. 14. Dr. Stubbs, Const. Hist., I. 573, considers that these words “admit the right of the nation to ordain taxation.”
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(1) The terms of the restriction are by no means wide or sweeping; but precise, accurate, and narrow. The “common consent of the realm” was made a requisite for three species of exactions at the most: for scutages and for extraordinary aids taken from the feudal tenants, and possibly also for aids taken from the city of London: that is all. Not a word is said of any other form of taxation or of other groups of taxpayers. The restriction thus benefits Crown tenants only, with the doubtful addition of the Londoners. (2) If under-tenants received by chapter 15 some protection against their mesne lords, they received none against the claims of the king. The Charter affected not national “taxation,” but merely feudal dues. (3) The scant measure of protection afforded did not extend even to all Crown tenants. The king’s villeins were, of course, excluded; and so were even freeholders whose tenure was other than that of chivalry. Socage tenants were left liable to carucage and other exactions, tenants in frankalmoin (among them the wealthy Cistercian monks) to forced contributions from the wool and hides of their sheep, while the right of the Crown arbitrarily to raise the “farms” of all parts of its own demesnes was deliberately reserved.[476] (4) The Crown’s initiative in “taxation” (here restricted in regard to “aids” and “scutages”) was, under many other names and forms, left intact. The king required no consent before taking such prizes and custom dues as he thought fit from merchandise reaching or leaving England, or before taking tolls and fines at inland markets under the plea of regulating trade. Tallages also were exigible at discretion from aliens and Jews, from tenants of demesne, from London and other chartered towns. (5) The limited scope of this restriction on prerogative is further illustrated by the method provided for taking “the common consent.” The assembly to be convened for that purpose was a narrow body, representative neither of the several ranks and classes of the community, nor of the separate national interests, nor yet of the various districts of England. On the contrary, its composition was extremely homogeneous, an aristocratic council of the military tenants of the Crown, convened in such a way that only the greater among them were likely to attend.[477]
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Footnote 476:
See infra, under c. 25.
Footnote 477:
Even when an honour escheated to the Crown, the tenants of that honour “were not suitors of the Curia Regis.” See Report on Dignity of a Peer, I. 60.
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These facts serve as a warning not to read into Magna Carta modern conceptions which its own words will not warrant. This famous clause was far from formulating any national doctrine of self-taxation; it was primarily intended to protect Crown tenants from impositions levied by John, not qua sovereign but qua feudal lord. Such as it was, it was totally omitted, along with its corollary (chapter 14), in 1216. The provision substituted for both, in the Charter of 1217, referred only to scutages, saying nothing about aids, and cannot possibly be read as a general prohibition of all arbitrary taxation by the Crown.[478]
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Footnote 478:
Cf. supra, pp. 173-4 and infra, under c. 14.
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CHAPTER THIRTEEN.
Et civitas Londonie habeat omnes antiquas libertates et liberas consuetudines suas, tam per terras, quam per aquas. Preterea volumus et concedimus quod omnes alie civitates, et burgi, et ville, et portus, habeant omnes libertates et liberas consuetudines suas.
And the citizens of London shall have all their ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.
A full list of the liberties and customs of London would be a long one; and an account of how each of these grew up and was confirmed by the Crown need not be given here. The most cherished of the privileges enjoyed in John’s day were the right to appoint a civic chief, who bore the name of mayor, and the right to choose sheriffs of their own who should collect the city’s firma[479] (or annual rent payable to the exchequer), so as to obviate the intrusion of royal bailiffs. Only a brief account of the way in which the metropolis obtained these two privileges need be here attempted.
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Footnote 479:
Firma is explained infra, c. 25.
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The chief feature of London before the Norman Conquest seems to have been lack of proper municipal organisation. Dr. Stubbs describes the capital during the eleventh century as “a bundle of communities, townships, parishes, and lordships, of which each has its own constitution.”[480] It was thus a collection of small administrative units, rather than one large unit. Some semblance of legal unity was, it is true, afforded by the folkmoot, in which the citizens regularly assembled; by its smaller council known as “husteng”; and perhaps also by its “cnihtengild” (if, indeed, this third body be not entirely mythical); while the existence of a “portreeve” shows that for some financial purposes also the city was treated as one whole. London, however, prior to the reign of Henry I. was far from possessing machinery adequate to the duties of a local government for the whole community.
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Footnote 480:
Stubbs, Const. Hist., I. 439. Cf. Round, Commune of London, 220, who is in substantial agreement. Miss Mary Bateson, however, thinks that “there has been a tendency unduly to minimise the measure of administrative unity in the twelfth-century shire of London.” See the evidence produced by her, Engl. Hist. Rev., XVII. 480-510.
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The first step towards acquiring a municipal constitution is generally supposed to have been taken by the citizens when they obtained a charter from Henry I. in the last years of his reign (1130-35). This is not strictly accurate. London, indeed, by that grant gained certain valuable privileges and enjoyed them for a short time, but it did not obtain a constitution. The chief rights actually conferred by Henry were as follows:—(1) The firma was fixed at the reduced rate of £300 per annum, the citizens obtaining for this payment a lease in perpetuity of their own city with the surrounding county of Middlesex—the grant being made to the citizens and their heirs; (2) they acquired the right to appoint whom they pleased as sheriffs of London and Middlesex, implying the exclusion of the king’s tax-collectors by men of their own choosing; (3) a similar right of appointing their own nominee as justiciar was also conferred on them, to the exclusion apparently of the royal justices of eyre. Many minor privileges were confirmed which need not here be specified. Mr. J. H. Round[481] argues with convincing force that these concessions, important as they were, did not confer a civic constitution upon London. Henry’s charter, in his opinion, confirmed all the already existing separate jurisdictions and franchises, perpetuating the old state of disunion, rather than creating a new principle of cohesion. He proves, further, that these benefits continued in force only for a few years after Stephen’s accession. That king was coerced by the Earl of Essex into infringing the citizens’ chartered rights; and London did not regain the ground thus lost until the reign of Richard I.
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Footnote 481:
Geoffrey de Mandeville, 356.
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Henry II., indeed, granted a charter to the citizens in 1155, which is usually interpreted as a full confirmation of all the concessions of the earlier Henry.[482] Mr. Round has conclusively proved the error of this opinion.[483] The charter of 1155 restricted, rather than enlarged, the privileges of London, being couched in cautious and somewhat grudging terms. The main concessions of the earlier charter were completely omitted: the citizens no longer elected their own sheriffs or their own justiciar; the reduction of the firma to £300 was not confirmed; and subsequent pipe rolls show that Henry doubled that amount, although the Londoners protested, arguing for the lower rate.
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Footnote 482:
See e.g. Miss Norgate, Angevin Kings, II. 471.
Footnote 483:
Geoffrey, 367.
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The next crisis came early in Richard’s reign. Then it was that London first obtained its municipal constitution. Then also it regained and secured on a permanent basis the privileges precariously held for a few years under Henry I. and Stephen. The form in which the constitution came at last was borrowed from France, and was neither more nor less than the Commune, so well known on the Continent in the twelfth and thirteenth centuries. The commune of London was possibly modelled upon the commune of Rouen; the chief cities of England and Normandy respectively must have had intimate relations. Mr. Round[484] has shown that these concessions were not, as has sometimes been supposed, voluntarily granted in 1189 by Richard I., but were extorted from his younger brother John, when that ambitious prince was bidding high for powerful allies to support his claim to act as Regent. London really got its first constitution on 8th October, 1191, under picturesque and memorable circumstances. While Richard tarried in the Holy Land, a scramble took place at home for the right to represent him. The Chancellor Longchamp had been appointed Regent; but John, wily and unscrupulous, successfully ousted him, with the help of the men of London. At the critical moment the metropolis had offered its support on conditions, which included the restoration of all the short-lived privileges conferred by the charter of Henry I., and, in addition, a municipal constitution of its own in the form of a commune of the continental type.
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Footnote 484:
Commune of London, 222.
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Mr. Round, in a notable passage, describes the scene. "When, in the crisis of October, 1191, the administration found itself paralysed by the conflict between John, as the king’s brother, and Longchamp, as the king’s representative, London, finding that she held the scales, promptly named the 'Commune’ as the price of her support. The chronicles of the day enable us to picture to ourselves the scene, as the excited citizens, who had poured forth overnight, with lanterns and torches to welcome John to the capital, streamed together on the morning of the eventful 8th October at the well-known sound of the great bell, swinging out from its campanile in St. Paul’s Churchyard. There they heard John take the oath to the ‘Commune,’ like a French king or lord; and then London, for the first time, had a municipality of her own."[485]
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Footnote 485:
Commune of London, 224.
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For any accurate definition of a commune we look in vain to contemporary writers, who are usually carried away by their political bias. Richard of Devizes[486] quotes with approval, “Communia est tumor plebis, timor regni, tepor sacerdotii.” Some insight has been gained in recent years, however, into its exact nature. A Commune was a town which had obtained recognition as a corporate entity, as a link in the feudal chain, becoming the free vassal of the king or other lord, and itself capable of having sub-vassals of its own.[487] Its chief institutions were a mayor and an elective council, generally composed of twenty-four members, some or all of whom were known as échevins or skivini, a word which in its modern form of “scavengers” has fallen on evil days, no longer denoting the city fathers, but men who perform civic duties of a useful but less dignified nature. Perhaps the chief peculiarity of the commune was the method of its formation, namely, by popular association or conspiracy, involving the taking of an oath of a more or less revolutionary nature by the citizens and its subsequent ratification by those in authority. It is generally admitted that these communes, though revolutionary in their origin, were not necessarily democratic in their sympathies. Under the new constitution of London, the grievous taxation of Richard’s reign was made to fall more heavily on the poor of London than on any other class. The commune thus set up in 1191, tolerated at first rather than encouraged by the Crown, formed thenceforth the municipal government of the capital; the citizens chose not only their own sheriffs, but also their own mayor, although the latter, when once appointed, held office for life.
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Footnote 486:
Select Charters, p. 252.
Footnote 487:
M. Luchaire, Communes Françaises, p. 97, defines it as “seigneurie collective populaire.”
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When John became king, he granted three charters, ratifying the privileges of the capital in return for a gersuma (or slump payment) of 3000 marks.[488] All the franchises specified in the old charter of Henry I. were now confirmed, with one exception: the liberty to appoint a justiciar of their own, now seen to be inconsistent with the Crown’s centralizing policy, was abandoned. None of these charters made mention of mayor or commune, but they confirmed some minor privileges gained in Richard’s reign.[489]
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Footnote 488:
Miss Bateson, Engl. Hist. Rev., XVII. 508.
Footnote 489:
E.g. the removal of obstacles to free navigation in Thames and Medway. Cf. infra, c. 33.
A fourth charter, dated 20th March, 1201, was merely of temporary interest; but a fifth, granted on 9th May, 1215, little more than a month previous to Magna Carta, is of great importance, and represents the bait thrown by John to the citizens in the hope of gaining their support in this new crisis, as he had previously gained it in the crisis of 1191. The fifth charter not merely confirmed to the citizens in explicit terms the right already enjoyed by them of electing a mayor for life, but allowed them to elect a new one every year. Miss Norgate does not exaggerate, when she describes this concession as “the crowning privilege of a fully constituted municipality, the right to elect their own mayor every year.”[490] An annually elected magistrate would, undoubtedly, feel his dependence on the citizens more than one holding office for life; but it seems probable that the chief value of the grant lay in its confirmation by John as king, of the rights conceded by him fourteen years earlier as his brother’s unauthorised representative, and enjoyed meanwhile on an insecure tenure. The charter of May, 1215, by officially recognizing the mayor, placed the commune over which he presided on a legal footing. The revolutionary civic constitution, sworn to in 1191 was now confirmed. The citizens acted on the permission granted them of annually changing their chief magistrate: but in place of supporting the king who made the grant, they opened their gates to his enemies.[491]
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Footnote 490:
John Lackland, 228.
Footnote 491:
From this date the list of mayors shows frequent, sometimes annual, changes. Thus Serlo the mercer was Mayor in May, 1215, when London opened its gates to the insurgents, while William Hardell had succeeded him before 2nd June, 1216, when he headed the citizens who welcomed Louis to make London his headquarters.
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Such then was the London whose privileges were confirmed by Magna Carta—a city which had slowly grown to greatness, obtaining after many struggles a complete municipal constitution in the form of a commune with annually elected mayor and council, as well as sheriffs of its own appointment, who excluded the Crown’s financial officers not only from the district within its walls but from the whole of Middlesex. The Great Charter, avoiding details, confined itself to a general confirmation to the men of London of their ancient “liberties and free customs,” two words[492] whose vagueness ought in this connection to receive a liberal interpretation.[493]
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Footnote 492:
Both words are discussed infra, c. 39.
Footnote 493:
The Charter mentions neither mayor nor commune, but probably by implication confirmed both. Prof. G. B. Adams finds such confirmation, not in c. 13, but in c. 12 (by its application of the word auxilium to London); and maintains that with the omission of this word from subsequent charters "London’s legal right to a commune fell to the ground." Engl. Hist. Rev., XIX. 706.
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London, in this respect, was not to stand alone; a similar concession was explicitly made in favour of all other cities, boroughs, towns, and sea-ports. This was a mere confirmation, however, not to be read as conferring new privileges or exemptions, each borough being left to prove its own customs as best it might. In the reissues of Henry, the distinction of being mentioned by name was shared by these “barons of London,” with “the barons of the Cinque ports,” who from their wealth, their situation, and their fleet, were allies well worth conciliating. They played, indeed, a prominent part in the decisive naval victory gained by Hubert de Burgh on 24th August, 1217.[494]
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Footnote 494:
See supra, p. 170.
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Other portions of John’s Great Charter which specially affected the Londoners were the last clause of chapter 12, and chapters 33 and 41; while many of the privileges granted or confirmed in other chapters were shared by them. The Mayor of London, it should be added, was one of the executive committee of twenty-five, entrusted with wide powers to enforce the provisions of the Charter.[495]
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Footnote 495:
See infra, c. 61.
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Among the most cherished privileges claimed by the chartered boroughs were the rights to exact tolls and to place oppressive restrictions upon all rival traders not members of their guilds, foreigners and denizens alike. The confirmation of these privileges in this chapter has been held to contradict chapter 41, which grants protection and immunities to foreign merchants.[496] The inconsistency, however, should not be pushed too far, since the later chapter aimed at the abolition of “evil customs” inflicted by the king, not of those inflicted by the boroughs. At the same time, all favour shown to aliens would be bitterly resented by their rivals, the English traders. If the charter had been put in force in its integrity, the more specific privileges in favour of foreign merchants would have prevailed in opposition to the vague confirmation of borough “liberties” wherever the two came into collision.[497]
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Footnote 496:
Cf. Pollock and Maitland, I. 447-8.
Footnote 497:
Cf. infra, c. 41.
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CHAPTER FOURTEEN.
Et ad habendum commune consilium regni, de auxilio assidendo aliter quam in tribus casibus predictis, vel de scutagio assidendo, summoneri faciemus archiepiscopos, episcopos, abbates, comites, et majores barones, sigillatim per litteras nostras; et preterea faciemus summoneri in generali, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite; ad certum diem, scilicet ad terminum quadraginta dierum ad minus, et ad certum locum; et in omnibus litteris illius summonicionis causam summonicionis exprimemus; et sic facta summonicione negocium ad diem assignatum procedat secundum consilium illorum qui presentes fuerint, quamvis non omnes summoniti venerint.
And for obtaining the common counsel of the kingdom anent the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, by our letters under seal; and we will moreover cause to be summoned generally, through our sheriffs and bailiffs, all others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. And when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come.
This chapter, which has no equivalent among the Articles of the Barons, appears here incidentally: it would never have found a place in Magna Carta but for the need of suitable machinery to give effect to the provision of chapter 12.[498]
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Footnote 498:
On the whole subject of the commune concilium, cf. supra 151-4 and also 173-4.
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As the earlier clause is frequently supposed to contain a general doctrine of taxation, so this one is often cited as enunciating a general doctrine of parliamentary representation; while the close connection between the two chapters is taken to indicate an equally close connection between the two conceptions supposed to underlie them, and is urged as evidence that the framers of Magna Carta had grasped the essentially modern principle that taxation and representation go together.[499] In this view, the barons at Runnymede deserve credit for anticipating some of the best features of the modern system of parliamentary government. The words of the text, however, will scarcely bear so liberal an interpretation. Vital points of difference between the principles of Magna Carta and the modern doctrine of representation are revealed by a careful analysis.
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Footnote 499:
E.g. Sir William R. Anson, Law and Custom of the Constitution, I. 14, emphatically declares that one of the two cardinal principles of the entire Charter is “that representation is a condition precedent to taxation.”
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Under chapter 12 scutages and extraordinary aids could only be levied “with common counsel of our kingdom,” and now chapter 14, by formulating rules for convening the individuals whose consent was thus required, fixes authoritatively the composition of an assembly definitely charged with this specific function. The same Latin words which signify joint “consent” or counsel thus came to signify also a special institution, namely, that “Common Council” afterwards of such vital constitutional importance, continuing under a new name the old curia regis in several of its most important aspects, and passing in turn into the modern Parliament. The duties and constitutional importance of this commune concilium may be considered under six heads.
I. Nature of the Summons. Formal writs had to be issued when the attendance of the members was required. These writs must specify the time, place, and reason of assembling, giving formal notice at least forty days in advance. In these respects the writs issued were all to be the same; but in one vital particular a distinction was recognized. Each of the really powerful men of the realm—archbishops, bishops, abbots, earls, and "other greater barons"—must receive a separate writ, under the royal seal, addressed to him individually and directly, while the “smaller barons” were to be summoned collectively and indirectly through the sheriffs and bailiffs of each district.
II. Composition of the Council. It is clear that the meetings contemplated were purely baronial assemblies since none but Crown tenants were invited to attend; while individual notice under the king’s seal was given only to the more important magnates among them. The Common Council of the Charter was thus an assembly of military Crown tenants, and “the common consent of my kingdom” in John’s mouth was synonymous with “the consent of my barons.”[500]
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Footnote 500:
This is illustrated by a comparison of the words used in the text with the phrases in which Henry and his sons expressed “the common consent” to important ordinances and charters: e.g. (a) the Assize of Clarendon in 1166 (Select Charters, 143) bears to have been ordained by Henry II. “de consilio omnium baronum suorum”; (b) John’s Charter surrendering his kingdom to Innocent in 1213 declares that he acted “communi consilio baronum nostrorum” (Select Charters, 285); (c) Matthew Paris makes Earl Richard complain to his brother Henry III. in 1255 that the Apulian business had been entered on “sine consilio suo et assensu barnagii” (Chron. Maj. V. 520).
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The king’s Council had by this time freed itself from any complicated theories as to its own composition, which may ever have hampered it. It was now extremely homogeneous; a feudal muster of Crown vassals. Some historians, indeed, in their anxiety to find distinguished pedigrees for their democratic ideals, have traced the origins of the leading features of the modern Parliament back to the Anglo-Saxon era; but such attempts are hurtful to the best interests of history, while they do not in the least advance the cause of popular liberties.
It is unnecessary here to examine the various rival theories professing to explain the composition of the Anglo-Saxon Witenagemot, or to discuss the exact connection between that venerable institution and the Curia Regis of the Norman kings. As a matter of fact, the early constitution of the court of the Conqueror or of Rufus seems to have been monarchic rather than aristocratic or democratic; that is to say, it depended to a great extent on the personal will of the king, who might issue or withhold writs of summons very much as he pleased. No evidence exists, of date anterior to the Great Charter, of any magnate thrusting himself unbidden into a royal council or forcing the king to issue a formal invitation. On one occasion, indeed, the action of Henry II. in omitting to issue a writ laid him open to unfavourable criticism. This was in October, 1164, when a special council was summoned to Northampton to pass judgment upon various questions at issue between the king and Thomas à Becket. The primate was ordered to appear for judgment, but the formal writ of summons, which every archbishop, as holder of a barony, was wont to receive as matter of course, was deliberately withheld. Apparently contemporary opinion condemned this omission.[501] It is safe to infer, then, that as early as 1164, the method of issuing these writs had become uniform, but this constitutional understanding was not reduced to writing until embodied in Magna Carta. Thus it was in 1215 that the magnates of England formulated for the first time a distinct claim to be present at the king’s councils; and even then the demand only referred to assemblies summoned for one specific purpose. Previously, attendance was reckoned not as a privilege, but merely as an expensive burden, incident, like so many other burdens, to the possession of land.[502]
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Footnote 501:
See Ramsay, Angevin Empire, p. 54, and authorities there cited.
Footnote 502:
See L. O. Pike, House of Lords, 92, "There is no trace of any desire on the part of the barons to be summoned to the king’s great Council as a privilege and an honour before the reign of John." Cf. also Report on the Dignity of a Peer, I. 389.
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III. Position of the “Minor Barons.” In recognizing a distinction between two classes of Crown tenants, the Great Charter merely gave the weight of its authority to existing usage, as that had taken shape in the reign of Henry II. Crown tenants varied in power and position in proportion to the extent of their lands, from the great earl who owned the larger share of one or more counties, down to the small free-holder with only a few hides, or it might be acres, of land. A rough division was drawn somewhere in the midst; but the exact boundary was necessarily vague, and this vagueness was probably encouraged by the Crown, whose requirements might vary from time to time.[503] Those Crown tenants on one side of this fluctuating line were known as barones majores, those on the other as barones minores. The distinction had been recognized as early as the days of Henry II.;[504] but Magna Carta helped to stereotype it, and contributed to the growing tendency to confine the word “baron” to the greater men.[505] It is unlikely that any “minor baron” who obeyed the general summons would enjoy equal authority with the magnates invited individually by writ; and it is difficult to say even whether he was sure of a welcome, and, if so, in what capacity. Three distinct theories at least have been advanced as to the position occupied by the “minor barons” in the Common Council. (1) The duty of attendance, burdensome to all, was specially burdensome to the poorer Crown tenants. It has accordingly been suggested that the device of inviting them by general summons was intended as an intimation that they need not come. This is the view taken by Prof. Medley.[506]
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Footnote 503:
See Prof. Medley, Engl. Const. Hist., 123.
Footnote 504:
See Dialogus de Scaccario, II. x. D., “baronias scilicet majores seu minores.”
Footnote 505:
Cf. supra, c. 2.
Footnote 506:
Engl. Const. Hist., 123. “The smaller tenants-in-chief would thankfully regard the general summons as an intimation to stay away.”
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(2) Dr. Hannis Taylor holds an exactly opposite opinion, reading this chapter as the outcome of a desire to ensure the fuller attendance of the smaller men—as an attempt “to rouse the lesser baronage to the exercise of rights which had practically passed into desuetude.”[507] Each of the barones minores was thus encouraged to attend for himself and his own interests. If such an attempt had really been made, and had succeeded in compelling the attendance of a large proportion of those who previously had almost made good their right to shirk the burden, the result would have been to leave no room whatever for the future introduction of the representative principle into the national council.
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Footnote 507:
Engl. Const., I. 466.
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(3) A third theory, while agreeing that those summoned by general writ were intended to obey the summons, thinks that the smaller Crown tenants were called not exclusively each man for himself, but in a representative capacity. It is thus suggested that a few knights (probably elected for this purpose by their fellows) were expected to attend to represent the others. Dr. Stubbs seems predisposed towards this opinion, although he expresses himself with his usual caution.[508]
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Footnote 508:
See Const. Hist., I. 666. “Whether or no the fourteenth article of the Great Charter intended to provide for a representation of the minor tenants-in-chief by a body of knights elected in the county court,” etc.
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The reasons for rejecting this third theory will be more conveniently discussed in connection with the doctrine of representation. It is perhaps unnecessary to decide between the two others; but it may be suggested, even at the risk of seeming to invent a fourth theory in a series already too numerous, that to the great men who framed the clause it must have been a matter of supreme indifference whether their humbler fellow-tenants attended or stayed away. The general summons expressed neither an urgent desire for their presence, nor yet an intimation that they were not wanted; but merely conformed with the established usage, and left with each “minor baron” the decision whether he should come or stay away. His presence would make little difference upon the deliberations of the magnates.
IV. Representation. It is well to hesitate before applying to ancient institutions a word so essentially modern as “representation.” In a sense the reeve and the four best men of every village “represented” their fellows in the county court from a very early age; and in a somewhat different sense the feudal lord “represented” his free tenants and villeins in the king’s court, but in neither instance was there anything approaching the very definite relation which exists at the present day between the elected member of Parliament and the constituents he “represents.” It is true that the difference may in some respects be one of degree rather than of kind, and it is further true that two years before the date of Magna Carta a tentative experiment had been tried in the direction of introducing representatives of the counties into the king’s Council, thus taking the first step in a long process destined ultimately to lead without any absolute breach of continuity to the modern Parliament. But the Barons in June, 1215, showed no desire to follow the example set by John in November, 1213. The terms in which Magna Carta directs that all minor barons should be summoned are explicit, and may be profitably contrasted with the words used in the writ dated 7th November, 1213, addressed to the sheriff of Oxford, ordering him to compel, in addition to the barons and the knights already summoned (presumably barones minores), the attendance of quatuor discretos homines de comitatu tuo (presumably other than Crown tenants).[509]
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Footnote 509:
Cf. supra, p. 36. The writ appears in Rot. Claus, I. 165, and also in Sel. Charters, 287. Cf. New Rymer, I. 117.
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So far from the words of Magna Carta showing any desire to confirm this precedent, they show a deliberate intention to ignore it, and to fall back on the more ancient practice. The members of the assembly which Magna Carta stipulated should be convened for the taking of “the common consent” were all of one type, drawn from the same section of the land-owning aristocracy, namely, military tenants-in-chief of the Crown. The barons, great and small, might be present, each man for himself; but the other tax-paying classes were completely ignored.[510] They were neither present nor yet represented. The barons in this, as in other matters, stood out for the old feudal order under which they had preserved a wide measure of independence from the Crown’s control; whereas King John for selfish reasons adopted the more enlightened policy of his father, and even, unconsciously it may be, anticipated some of the measures of his grandson, Edward Plantagenet. In brief, John was progressive, while his opponents were conservative. The present chapter must be added to the not inconsiderable list of those which attempted to bring about a feudal reaction.[511]
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Footnote 510:
Cf. supra, c. 12.
Footnote 511:
Cf. Anson, Law and Custom, I. 44. “The provisions of 1215 described an assembly of a type which was already passing away.” Cf. what is said of reactionary tendencies in connection with cc. 37 and 39.
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V. Powers and Functions of the Council. It was not until long after the days of Magna Carta that Parliament secured the most important of those functions now deemed essential to its existence. No claim was made by the Great Charter on behalf of the commune concilium to any right to be consulted in the making of laws or in the performance of administrative or judicial duties by the Crown. No effort was made towards formulating any doctrine of ministerial responsibility. This assembly, narrow and aristocratic in its composition, had only one right secured to it by Magna Carta—namely, a limited control over one form of taxation. Even here, as we have seen, no general or sweeping claim was put forward on its behalf. It had no right to a control of the national purse: the barons confined themselves to a selfish assertion of a right to protect their own individual pockets against an increase of feudal burdens. A modern Magna Carta would have contained a careful list of the powers and privileges of “the common council of the realm,” and would have given to this list a conspicuous place of honour.[512]
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Footnote 512:
Cf. Report on Dignity of a Peer, I. 63, where it is mentioned as “remarkable that no one article in the Charter has reference to the previous existence of any assembly convened for general purposes of legislation; nor does the charter contain any provision for the calling of any such assembly in the future, or any provision purporting the existence by law of any representative system for the purpose of general legislation.”
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VI. Rights of Majorities and Minorities. The medieval conception of constitutional solidarity was defective; the king’s council acted too much like a fortuitous gathering of unrelated individuals, and too little like a recognized organ of the body politic. Each “baron” was summoned on his own behalf, and in order that he might give his individual consent to a proposed levy; while it is doubtful how far a dissenting minority could be bound by a decision of the rest. Accordingly, the framers of Magna Carta deemed it necessary to assert what would be too obvious to modern politicians to require assertion—namely, that when the commune concilium had been properly convened, its power to transact business should not be interfered with because a section of those summoned chose to stay away. “The business shall proceed on the day appointed, according to the advice of such as shall be present, although all that were summoned do not come.” Not all business was competent, however, for the cause of summons had to be mentioned in the writs. If these writs were in order, the Council, so we may presume, had power to impose aids or scutages on those who were absent.[513]
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Footnote 513:
Cf. Stubbs, Const. Hist., I. 607: “Absence, like silence, on such occasions implies consent.”
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Nothing is said, however, as to the validity of a protest made by those who came and expressed disapproval of what the majority agreed to. As the substance of this chapter was observed in practice (though omitted from subsequent confirmations), a precedent of the year 1221 may perhaps be cited to illustrate the interpretation put upon it by contemporary practice. A Council summoned by William Marshal, as Regent of Henry III., had consented to a levy of scutage, and the bishop of Winchester was assessed at 159 marks as the amount due for his knight’s fees. He refused to pay, on the ground, quite untenable by modern standards, that he had all along dissented from the grant. The fact of his protest was vouched by Hubert de Burgh and others who had been present at the Council. The plea was actually accepted by the Regent, and the exchequer adjudged bishop Peter to be quit of the payment.[514] The incident shows how far the statesmen of the day were from realizing the most elementary principles of political theory. They had not yet grasped the conception of a Council endowed with constitutional authority to impose its will on a dissenting minority. Here it was apparently a minority of one.
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Footnote 514:
See Pipe Roll of 5 Henry III., cited Madox, I. 675.
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The barons by consenting in 1217 to accept a return to the fixed rates of scutage customary in the reign of Henry II., deliberately sacrificed such right of control over the finances of the nation as they may have obtained in 1215. At no time, indeed, did they show any appreciation of the vital nature of the constitutional issues at stake. The importance of the common council, and the necessity of defining its composition, functions, and privileges, lay entirely beyond their narrow sphere of vision.
It should be remembered, however, that the substance of this chapter of John’s charter (although discarded in subsequent reissues) was virtually observed in practice by the Crown, and treated as in force by the barons. From this time forward the Common Council was almost invariably consulted before the Crown attempted to levy such contributions; and sometimes was bold enough to make conditions or to decline payment altogether, the first instance on record of an outright refusal taking place in a Parliament held at London in January, 1242.[515]
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Footnote 515:
See Prothero, Simon de Montfort, 67, and authorities there mentioned.
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The barons, in October, 1255, if Matthew Paris has not fallen into error, considered that the provisions of chapters 12 and 14 of John’s Magna Carta were still in force, although they had been omitted in the reissues of Henry III. When the king asked a liberal aid in furtherance of his scheme for securing the crown of Sicily for his son Edmund, those present at the Council deliberately refused, on the ground that some of their peers had not been summoned “according to the tenor of Magna Carta.” This incident illustrates the extreme constitutional importance rightly attached by the barons to the rigid observance by the Crown of the established usage relative to the convening of Parliament.[516]
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Footnote 516:
See M. Paris, Chron. Maj., V. 520. His words are: “Et responsum fuit quod omnes tunc temporis non fuerunt juxta tenorem magnae cartae suae vocati, et ideo sine paribus suis tunc absentibus nullum voluerunt tunc responsum dare.” Matthew, however, probably improved his story in the telling, adding local colour from the only version of the charter known to him—namely, that spurious copy he had incorporated in his own history. He clearly knew nothing of the essential differences between the charters of John and of Henry. The barons in 1255 may, or may not, have been equally ignorant.
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CHAPTER FIFTEEN.
Nos non concedemus de cetero alicui quod capiat auxilium de liberis hominibus suis, nisi ad corpus suum redimendum, et ad faciendum primogenitum filium suum militem, et ad primogenitam filiam suam semel maritandam, et ad hec non fiat nisi racionabile auxilium.
We will not for the future grant to any one licence to take an aid from his own free tenants, except to ransom his body, to make his eldest son a knight, and once to marry his eldest daughter; and on each of these occasions there shall be levied only a reasonable aid.
This chapter confers on the tenants of mesne lords protection similar to that already conferred on Crown tenants: sums of money are no longer to be extorted from them arbitrarily by their lords.[517] Different machinery, however, had here to be adopted, since the expedient relied on in chapter 12 (“the common consent of the realm”) was clearly inapplicable.
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Footnote 517:
The chapter is, therefore, on the one hand a necessary supplement of cc. 12 and 14, while on the other it is merely a particular application of the general principle enunciated in c. 60, which extended to sub-tenants all the benefits secured to Crown tenants by previous chapters.
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I. Points of difference between tenants-in-chief and under-tenants. Tenants of mesne lords were in some respects better off than tenants of the king,[518] but in others their position was distinctly worse. Not only had they to satisfy the demands of their own lord for “aids,” but they generally found that part of every burden laid by the king upon that lord’s shoulders was transferred to theirs. In seeking to provide for under-tenants the protection of which they stood so much in need Magna Carta looked, not to the common council, but to the king. No mesne lord was to be allowed to compel his tenants to contribute to his necessities without obtaining a written licence from the Crown; and stringent rules forbade the issue of such licences except upon the usual three occasions. Contrast this procedure with that which affected Crown tenants.
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Footnote 518:
The exemptions enjoyed by them are explained under c. 43.
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(1) While chapter 12 had spoken of “aids and scutages,” this one speaks of “aids” alone. The omission can be readily explained: a mesne lord in England had no right of private war, and was, as a logical consequence, debarred from demanding scutage upon his own initiative. He might, indeed, allocate upon his freeholders part of any scutage which the Crown had taken from him; but the great barons who framed the Charter had no intention to renounce so just a right. The restriction of this clause to “aids” was thus intentional.
(2) It would have been absurd to require “the common counsel of the realm” to every aid paid by the freeholders of a manor. The embryo Parliament had no time for petty local affairs; and the present chapter makes no such suggestion. Some substitute had, however, to be found. A natural expedient would have been to compel the mesne lord who wished an aid to take “the common consent” of the freeholders of his manor, assembled for that purpose in their court baron, as in a local parliament. This course was sometimes followed. Henry Tracey, for example, in 1235 (although armed with a royal writ), convened his Devonshire knights and obtained their collective consent to an aid of 20s. per fee on the occasion of his daughter’s marriage.[519] No such obligation, however, had been placed upon mesne lords by Magna Carta, which had sought a practical substitute for “the common consent of the realm” in quite a different direction, as will be explained immediately.
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Footnote 519:
See Bracton’s Notebook, case 1146, cited by Pollock and Maitland, I. 331.
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(3) A check upon such exactions was sought, not in any action by the court baron, but in the mesne lord’s need for a royal licence. The necessity for this may at first have been a practical, rather than a legal, one; for executive power lay with the officers of the Crown alone, and the sheriff gave his services only at the king’s command.[520] The Crown thus exercised what was virtually a power of veto over all aids taken by mesne lords. Such a right, conscientiously used, would have placed an effectual restraint on their rapacity. John, however, employed it solely for his own advantage, selling writs to every needy lord who proposed to enrich himself (and, incidentally, the Crown also) at his tenants’ expense.
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Footnote 520:
In theory, in Henry II.’s reign at least, a royal writ was not required in the normal case. See Dialogus, II. viii., and the editors’ comment (p. 191): “Normally the levying of money under any pretext from a land-owner gave him a right to make a similar levy on his under-tenants.” As regards scutage, a distinction was recognized. The lord who actually paid scutage might collect it from his sub-tenants without a licence; but, if he served in person, he could recover none of his expenses except by royal writ. See Ibid., and cf. Madox, I. 675. It is necessary, however, to avoid confusion between two types of writ, (a) that which merely authorized contributions, e.g., de scutagio habendo; (b) that which commanded the sheriff to give his active help.
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Magna Carta forbade the two tyrants thus to combine against the sub-tenants, enunciating a hard-and-fast rule which, if duly observed, would have struck at the root of the grievance. The whole subject of aids was removed from the region of royal caprice into the region of settled law. No writ could be lawfully issued except on the three well-known occasions.
II. The Influence of Magna Carta upon later Practice. This chapter, along with chapters 12 and 14, was discarded by Henry III.; and little difference, if any, can be traced between the practices that prevailed before and after 1215. Only in one particular were the requirements of John’s Magna Carta observed, namely, as regards the need for obtaining a royal licence. Mesne lords after this date, whatever may have been their reason, invariably asked the Crown’s help to collect their aids. They could not legally distrain their freeholders, except through the sheriff, and this was, in part at least, a result of Magna Carta.[521]
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Footnote 521:
Cf. Pollock and Maitland, I. 331: “The clause expunged from the Charter seems practically to have fixed the law.”
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Henry III., however, entirely disregarded the rule which forbade the licensing of extraordinary aids. Like his ancestors, he was prepared to grant writs on almost any plausible pretext. From the Patent and Close Rolls, as well as from other sources, illustrations of the Crown’s earlier and later practice may readily be collected.
(1) Scutages. In 1217, for example, Henry granted permission to all Crown tenants who had served in person to collect scutage from their knights.[522]
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Footnote 522:
Close Rolls, I. 306, cited Pollock and Maitland, I. 331.
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(2) Ordinary Aids. (a) John in 1204 authorized the collection of “an effectual aid” from the knights and freeholders of the Constable of Chester for the ransom of their lord.[523] (b) A royal writ in 1235 allowed Henry Tracey, as already mentioned, to take an aid for his eldest daughter’s marriage.
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Footnote 523:
Patent Rolls, 5 John, cited Madox. I. 615.
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(3) Special Aids. (a) When a fine of sixty marks was incurred in 1206 by the Abbot of Peterborough, John allowed him to distrain his under-tenants for contributions.[524] (b) An heir, paying relief, might likewise transfer the obligation to his freeholders.[525] (c) The lord’s debts were frequently paid by his tenants. The returns to the Inquest of 1170 contain particulars of the “sums given individually by some forty burgesses of Castle Rising towards paying off the mortgages of their lord, the Earl of Arundel, who was clearly in the hands of the Jews”;[526] while in 1234 the Earl of Oxford and the Prior of Lewes each obtained a letter patent distraining their tenants to contribute to the discharge of their debts.[527] Sufficient evidence is thus preserved that Henry III. took full advantage of the omission from his own charters of this part of his father’s promises. He did not question too minutely the justice of applications for such writs, if good fees were punctually paid. His letters, during the earlier years of his reign, authorized the taking of a “reasonable” aid, without hinting at any mode of determining what that was. This is illustrated by the procedure adopted by Henry Tracey in 1235, who apparently debated with his assembled knights of Devonshire the amount to be paid as “reasonable,” and finally accepted 20s. per fee.[528] It is interesting to note, however, that this same mesne lord, twelve years later, obtained a writ bidding the sheriff of Somerset assist him to collect “the scutage of Gascony” at a specified rate, namely, 40s. per fee.[529]
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Footnote 524:
Close Rolls, 7 John, cited Madox, I. 616.
Footnote 525:
See Glanvill, IX. 8.
Footnote 526:
See Round, Commune of London, 130.
Footnote 527:
See Madox, I. 617, citing Patent Rolls, 18 Henry III. Various other examples are given by Pollock and Maitland, I. 331, e.g. “the earl of Salisbury, to enable him to stock his land.”
Footnote 528:
Supra, p. 303, and cf. Pollock and Maitland, I. 331.
Footnote 529:
See Madox, I. 677.
The first Statute of Westminster virtually reverted to the rule laid down in 1215, for its terms imply that aids could only be taken on the three well-known occasions. The vague declaration that these should be reasonable in amount is replaced by the specification of a fixed rate, namely 40s., or double what had been usual at an earlier period. Definition of the amount and times of payment may, however, have been worth purchasing even at this increase.
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CHAPTER SIXTEEN.
Nullus distringatur ad faciendum majus servicium de feodo militis, nec de alio libero tenemento, quam inde debetur.
No one shall be compelled to perform greater service for a knight’s fee, or for any other free tenement, than is due therefrom.
For military tenants, the transition from scutage to service was a natural one; since it was not enough to protect themselves from exactions in money, if they were still exposed to arbitrary exactions in kind. John, therefore, declared that no freeholder should be constrained to do more service for his lands than he was legally bound to do. Disputes might arise, however, as to what extent of service actually was due in each particular case, and Magna Carta did nothing to remove such ambiguities. The difficulties of definition, indeed, were enormous, since the duration and conditions of service might vary widely even among tenants-in-chivalry, in consequence of special exemptions or special burdens which appeared in title deeds or rested upon immemorial usage. The barons would be unwilling to enter on so intricate and laborious a task, fearing that the introduction of such complications might do more harm than good. The necessity for accurate definition may never have occurred to them: the main purport of their grievance was so vividly present to their own minds that they did not acknowledge the possibility of any mistake. The military Crown tenants had frequently objected to serve abroad, particularly during John’s campaigns in Poitou, which involved a long expensive journey to a region in which they had nothing at stake.[530] They regarded themselves as not legally bound to make expeditions to such portions of the Angevin Empire as had not belonged to the Norman kings when their ancestors got their fiefs. To force them to enter on campaigns to the south of France, or to fine them heavily for staying at home, was, they argued, to distrain them ad faciendum majus servicium de feodo militis quam inde debetur. When they inserted these words in the Charter, they doubtless regarded them as an absolute prohibition of compulsory service in Poitou, at all events.[531] The clause was wide enough, however, to include many minor grievances connected with service. The barons did not confine its provisions to military service even, but extended it to other forms of freehold tenure (“nec de alio libero tenemento”). No freeholder, whether in socage, serjeanty, or frankalmoin, could in future be compelled to render services not legally due.
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Footnote 530:
See the authorities cited supra, p. 85, nn. I and 2.
Footnote 531:
In the so-called “unknown Charter of Liberties” (see Appendix) John concedes to his men “ne eant in exercitu extra Angliam nisi in Normanniam et in Brittaniam,” a not unfair compromise, which may possibly represent the sense in which the present chapter was interpreted by the barons.
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If the barons thought they had thus settled the vexed questions connected with foreign service, they deceived themselves. Although this chapter (unlike those dealing with scutage) remained in full force in all subsequent confirmations, it was far from preventing disputes. Yet the disputants in future reigns occupied somewhat different ground. From the days of William I. to those of Charles II., when the feudal system was abolished, quarrels frequently arose, the most famous of which culminated in 1297 in Edward’s unseemly wrangle with the Earls of Norfolk and Hereford, whose duty it was to lead the royal army as hereditary Constable and Marshal respectively, but who refused point-blank to embark for Gascony except in attendance on the king’s person.[532]
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Footnote 532:
Walter of Hemingburgh, II. 121. Cf., on the whole subject of foreign services, supra, 154.
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It has been shown in the Historical Introduction[533] how the obligations of a military tenant fell naturally into three groups (services, incidents, and aids), while a fourth group (scutages) was added when the Crown had adopted the expedient of commuting military service for its equivalent value in money.
Feudal grievances also may be arranged in four corresponding groups, each redressed by special clauses of Magna Carta: abuse of aids by chapters 12, 14, and 15; abuse of the feudal incidents, by chapters 2 to 8; abuse of scutage, by chapters 12 and 14; and abuse of service, by the present chapter, which thus completes the long list of provisions intended to protect tenants against their feudal lords.
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Footnote 533:
Supra, 72–86.
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CHAPTER SEVENTEEN.
Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.
Common pleas shall not follow our court, but shall be held in some fixed place.
An attempt was here made to render royal justice cheaper and more accessible. Law-suits in which the Crown had no special interest, common pleas, were to be held in some one, fixed, pre-appointed spot, and must no longer follow the king as he moved about from place to place. The full extent of the boon conferred by this reform will be better appreciated after a short consideration of the method of dispensing justice adopted by Henry II. and his sons.
I. The Curia Regis as a Court of Law. The evil complained of was a characteristically medieval one, and arose from the fact that all departments of government were originally centred in the king and his household, or Curia Regis, which performed royal and national business of every kind. This Curia Regis, indeed, united in itself the functions of the modern Cabinet, of the administrative departments (such as the Home Office, the Foreign Office, and the Admiralty), and of the various legal tribunals. It was the parent inter alia of the Court at St. James’s and the courts at Westminster. One result of throwing so many and miscellaneous duties on a small body of hard-worked officials was to produce a congestion of business. Nothing could be done outside of the royal household, and that household never tarried long in any one spot. Everything was focussed to one point, but to a point constantly in motion. Wherever the king went, there the Curia Regis, with all its departments, went also. The entire machinery of royal justice followed Henry II., as he passed, sometimes on the impulse of the moment, from one of his favourite hunting seats to another. Crowds thronged after him in hot pursuit, since it was difficult to transact business of moment elsewhere.
This entailed intolerable delay, annoyance, and expense upon litigants who brought their pleas for the king’s decision. The case of Richard d’Anesty is often cited in illustration of the hardships which this system inflicted upon suitors. His own account is extant and gives a graphic record of his journeyings in search of justice, throughout a period of five years, during which he visited in the king’s wake most parts of England, Normandy, Aquitaine, and Anjou. The plaintiff, although ultimately successful, paid dearly for his legal triumph. Reduced to borrow from the Jews to meet his enormous outlays, mostly travelling expenses, he had to discharge his debts with accumulations of interest at the ruinous rate of 86⅔ per cent.[534]
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Footnote 534:
Cf. J. F. Stephen, Hist. of Crim. Law, I. 88-9.
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II. Common Pleas and Royal Pleas. Long before 1215 all litigations conducted before the king’s courts had come to be divided roughly into two classes, according as the royal interests were or were not specially affected by the issue. Those on one side of this fluctuating line were known as royal pleas, or “pleas of the Crown,” provisions for holding which are contained in chapter 24, those on the other side as ordinary pleas or “common pleas,” to which alone the present chapter refers. As these ordinary suits did not require to be determined in the royal presence, it was therefore possible to appoint a special bench of judges to sit permanently in some fixed spot, to be selected once for all as likely to suit the convenience of litigants. No town was named in Magna Carta; but Westminster, even then the natural home of law, was probably intended from the first. It is Westminster that Sir Frederick Pollock has in mind when he writes in reference to this chapter: “We may also say that Magna Carta gave England a capital.”[535] The barons in 1215, however, in asking this reform, were not insisting on any startling innovation, but demanding merely the strict observance of a rule long recognized. During most of John’s reign, a court did sit at Westminster dispensing justice, with more or less regularity; and there most “common pleas” were tried, unless John ordered otherwise.[536] Magna Carta insisted that all exceptions must cease; the rule of law must supersede the royal caprice.
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Footnote 535:
Jurisprudence and Ethics, 209. Sometimes, however, another “fixed place” was substituted. The Court of Common Pleas once sat at York under Edward III. and at Hertford under Elizabeth. See Maitland, Select Pleas of the Crown, xiii. The Statute 2 Edward III. c. 11, enacted that it should not be removed to any new place without due notice.
Footnote 536:
See Prof. Maitland, Select Pleas of the Crown, xiii.-xvi.
III. Effects of Magna Carta on the genesis of the three Courts of Common Law. The ultimate consequences of the accomplishment of this reform reached further than was foreseen. Intended merely to remove from litigants a practical grievance of frequent occurrence, it had important indirect effects on the development of the English Constitution. By securing for common pleas a permanent home, it gave an impetus to the disintegrating tendencies already at work within the many-sided household of the king. It contributed somewhat to the slow process whereby the Curia Regis, as an administrative organ, was differentiated from the same Curia as the dispenser of justice. It helped forward the cleavage destined to divide completely the future Courts of Westminster from the Court of St. James’s and from Downing Street. Nor was this all: the special treatment accorded to “common pleas” emphasized the distinction between them and royal pleas, and so contributed to the splitting up of the same Curia Regis, on its judicial side, into two distinct tribunals. One little group of judges were set apart for hearing common pleas, and were known as "the king’s Judges of the Bench," or more briefly as “the Bench,” and at a later date as the Court of Common Pleas. A second group, reserved for royal pleas, became the court Coram Rege, known subsequently as the Court of King’s Bench. There were thus two benches: a common bench for common pleas and a royal bench for pleas of the Crown.[537]
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Footnote 537:
Cf. supra, 109.
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The double process by which these two small courts separated themselves slowly from the parent court and from each other began long prior to Magna Carta, and was not completed before the close of the thirteenth century. These benches were also closely linked with a third bench, known for centuries as the Court of Exchequer, which was in its origin merely one department of that government bureau, the king’s financial Exchequer—that office in which money was weighed and tested and the royal accounts drawn up. Many disputes or pleas affecting Crown debts and debtors had to be there decided, and in due time a special group of officials were set aside to try these. These men, called, not judges, but “barons of the exchequer,” formed what was in fact, though not in name, a third bench or court of justice.
All three of the Courts of Common Law—the Court of King’s Bench, the Court of Common Pleas, and the Court of Exchequer—were thus offshoots of the king’s household. In theory, each of these ought to have confined itself to the special class of suits to which it owed its origin—to royal pleas, common pleas, and exchequer pleas respectively; but by a process well known to lawyers and law-courts in all ages, each of them eagerly encroached on the jurisdictions and the fees appropriate to the others, until they became, for most purposes, three sister courts of similar and co-ordinate authority. They were bound to decide all suits according to the technical and inflexible rules of common law; and their jurisdiction thus required a supplement, which was supplied by the genesis of the Court of Chancery, dispensing, not common law, but equity, which professed to give (and, for a short time, actually did give) redress on the merits of each case as it arose, unrestrained by precedents and legal subtleties.
IV. The Evolution of the Court of Common Pleas. The comment usually made upon the present chapter is that we have here the origin of the Court of Common Pleas. Now, legal institutions do not spring, full-fledged, into being. The Court of Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of gradual separation from a common parent stem. Prior to 1215 several tentative efforts seem to have been made towards establishing each of these. On the other hand, it is probable, nay certain, that long after 1215 the Court of Common Pleas did not completely shake off either its early dependence upon the Curia Regis, or yet its close connection with its sister tribunals.
Three stages in the process of evolution may be emphasized. (1) The earliest trace of the existence of a definite bench of judges, set apart for trying common pleas, is to be found in 1178, not in 1215. When Henry II. returned from Normandy in the former year, he found that there had been irregularities in his absence. To prevent their recurrence, he effected certain changes in his judicial arrangements, the exact nature of which is matter of dispute. A contemporary writer[538] relates how Henry chose two clerks and three laymen from the officials of his own household, and gave to these five men authority to hear all complaints and to do right “and not to recede from his court.” It was long thought that this marked the origin of the Court of King’s Bench, but Mr. Pike[539] has conclusively proved that the bench thus established was the predecessor, not of the royal bench, but rather of the bench for common pleas.
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Footnote 538:
The chronicler known as Benedict Abbot, I. 107 (Rolls Series).
Footnote 539:
House of Lords, 32.
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In 1178, then, these five judges were set apart to hear ordinary suits; but they were specially directed not to leave Henry’s court; so that common pleas still “followed the king,” even ordinary litigants in non-royal pleas having to pursue the king in quest of justice as he passed from place to place in quest of sport.
It must not be supposed that the arrangement thus made in 1178 settled the practice for the whole period of thirty-seven years preceding the grant of Magna Carta. On the contrary, it was merely one of many experiments tried by that restless reformer, Henry of Anjou; and the separate court then instituted may have been pulled down and set up again many times. The bench which appears in 1178 had probably, at best, a fitful and intermittent existence. There is evidence, however, that some such court did exist and did try common pleas in the reigns of Richard and John.[540] On the other hand, this tribunal had in John’s reign ceased to follow the king’s movements habitually (thus disregarding the decree of 1178), and had established itself at Westminster.[541] It was in 1215 considered an abuse for John to try a common plea elsewhere. Times had changed since his father had granted as a boon that a set of judges should remain constantly at “his court” to try such cases.
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Footnote 540:
See Prof. Maitland, Sel. Pl. Crown, xiii.-xvi.; see also in Pipe Roll, 7 John (cited Madox, I. 791) how money was paid that a plea pending before the Justiciarii de banco might be heard coram rege. This entry proves that in 1205 there were two distinct courts, one known as de banco and the other as coram rege.
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Footnote 541:
See Maitland, Ibid.
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(2) Magna Carta in 1215 gave authoritative sanction to the already recognized rule that common pleas should be tried at Westminster, instead of moving with the king. No exceptions were henceforth to be allowed. Young Henry renewed this promise, and the circumstance of his minority favoured its strict observance. A mere boy could not make royal progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstances, which thus emphasized the stability of common pleas (along with all other kinds of pleas) in one fixed place, may have arrested the process of cleavage between the two benches. All the judges of both courts sat at Westminster, and therefore there was the less need for allocating the business between them with any exactitude. The two benches were in danger of coalescing.
(3) About the year 1234 a third stage was reached. Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train, hearing pleas wherever he stopped. While one group of judges went with him, another remained at Westminster. Some way of allocating the business had therefore to be found. Common pleas, in accordance with Magna Carta, remained stationary; while pleas of the Crown went on their travels. The split between the two benches now became absolute. Each provided itself with separate records. From the year 1234, two continuous series of distinct rolls can be traced, known respectively as rotuli placitorum coram rege and rotuli placitorum de banco. If any date in the history of one law court, which is in process of becoming two, can be reckoned as specially marking the point of separation, it should be that at which separate rolls appear. The court’s memory lies in its records, which are thus closely associated with its identity. In 1234 the common bench and the royal bench had become distinct.[542] Evidence drawn from a few years later proves that a definition of common pleas had been arrived at and that the rule which required them to be held “in a fixed place” was insisted on. While Henry and his justices sat in judgment at Worcester in 1238, a litigant protested against his suit being tried before them. It was a “common plea” and therefore, he argued, ought not to follow the king, in violation of Magna Carta. At Westminster only, not at Worcester or elsewhere, could his case be heard.[543]
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Footnote 542:
See Maitland, Sel. Pl. Crown, xviii.
Footnote 543:
See Placitorum Abbreviatio (p. 105) 21 Henry III., cited Pike, House of Lords, p. 41. Cf. also Bracton’s Note Book, pleas Nos. 1213 and 1220.
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With royal pleas, however, it was very different: for long they continued to follow the king’s person without any protest being raised; and the Court of King’s Bench did not finally settle at Westminster for nearly a century after the Court of Common Pleas had been established there. So late as 1300, Edward I. ordained by the Articuli super cartas that “the Justices of his Bench” (as well as his Chancellor) should follow him so that he might have at all times near him “some sages of the law, which be able duly to order all such matters as shall come into the Court at all times when need shall require.”[544]
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Footnote 544:
28 Edward I. c. 5.
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V. Erroneous Views. In the reign of Edward I. the real motive of this chapter of Magna Charta—so quickly had the organization of the law courts progressed—had already been lost sight of. The day of wandering common pleas, such as that of Richard d’Anesty, had been long forgotten. Some litigants of Edward’s time had, however, a different grievance of their own, connected with the hearing of their suits. The Court of Exchequer was willing, for an adequate consideration, to place its specially potent machinery, devised originally for the king’s exclusive use, at the disposal of private creditors, thus treating “common pleas” as “exchequer pleas.” Ordinary debtors, summoned as defendants before the barones scaccarii, were subjected to harsher treatment than they would have experienced elsewhere. It was not unnatural that defendants who found themselves thus hustled should read the words of Magna Carta relative to “common pleas” as precisely suited to their own case. They made this mistake the more readily as the original motive had been forgotten. The Charter was thus read as preventing the stationary Court of Exchequer (not the constantly moving King’s Bench) from hearing ordinary suits. This erroneous view received legislative sanction. The Articuli super cartas in 1300 declared that no common pleas should thenceforth be held in the Exchequer “contrary to the form of the Great Charter.”[545]
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Footnote 545:
See 28 Edward I. c. 4. Many previous attempts had been made to keep common pleas out of the Exchequer e.g. the writs of 56 Henry III. and 5 Edward I. (cited Madox, II. 73-4) the so-called statute of Rhuddlan (12 Edward I., see Statutes of Realm, I. 70). Madox also (II. 73-4) takes the erroneous view that c. 17 of the Great Charter relates to the Exchequer; so does Mr. Bigelow (History of Procedure, 130–1), who goes further astray by explaining the point of the grievance as the difficulty of getting speedy justice at the Exchequer, because the barons refused to sit after their fiscal business had been finished, at the Easter and Michaelmas sessions. This is an error: the Barons of Exchequer made no difficulty about hearing pleas: quite the contrary. Plaintiffs were equally eager to purchase the writs which they were keen to sell: it was only defendants (debtors) who objected to the rapid and stringent procedure for enforcing payment adopted by this efficient court. The sheriffs and others waiting to render accounts before the Exchequer also protested against the congestion of business produced at the Exchequer by the eagerness of litigants who pressed there for justice. See Madox, II. 73. Plaintiffs had no reason to complain.
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This is a clear misinterpretation of the intention of Magna Carta. The Exchequer never “followed the Crown”; it stayed at Westminster where its offices, tallies, and pipe rolls were. The Charter would have expressed itself in widely different words if it had desired to exclude common pleas from the Exchequer. The Articuli super Cartas, however, attempted what the Charter of 1215 did not. After 1300 it was clearly illegal to hold any pleas in the Exchequer, unless such as affected the Crown and its ministers. Subsequent statutes confirmed this; but their plain intention was always defeated by the ingenious use of legal fictions and the connivance of the Barons of Exchequer, who welcomed the increase of their fees which kept pace with the increase of business.[546]
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Footnote 546:
The fiction of “Crown debtors” is well known: plaintiffs obtained a hearing in the Exchequer for their common pleas by alleging that they wished to recover debts due to them “in order to enable them to answer the debts they owed to the king.” See Madox, II. 192.
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The evil directly attacked by Magna Carta was something quite different—an evil wider, more pressing and less technical, namely, the practice of causing ordinary litigants, with their legal advisers and witnesses, to dance attendance on a constantly moving court.
CHAPTER EIGHTEEN.
Recogniciones de nova dissaisina, de morte antecessoris, et de ultima presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos, vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas predictas.
Inquests of novel disseisin, of mort d’ancestor, and of darrein presentment, shall not be held elsewhere than in their own county-courts,[547] and that in manner following,—We, or, if we should be out of the realm, our chief justiciar, will send two justiciars through every county four times a year, who shall, along with four knights of the county chosen by the county, hold the said assizes[548] in the county court, on the day and in the place of meeting of that court.
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Footnote 547:
“Comitatus” indicates both the county where the lands lay and the court of that county. It was originally the sphere of influence of a comes or earl. Cf. supra, c. 2, (p. 238, n.)
Footnote 548:
“The said assizes” were previously called, not assizes but “inquests” (recogniciones), a wider term of which the three petty assizes here named were three special applications.
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Provision is thus made for holding before the king’s travelling justices, frequently and in a convenient manner, three species of judicial inquests known as “the three petty assizes.” These are of exceptional interest, not only in relation to Magna Carta, but from their intimate connection with several constitutional problems of prime importance; with the reforms of Henry II. on the one hand, and with the genesis of trial by jury and of the Justices of Assize on the other.
I. The Curia Regis and the travelling Justices. From an early date, certainly from the accession of Henry I., it was the Crown’s practice to supplement the labours which its officials conducted within the precincts of the royal exchequer by the occasional despatch of chosen individuals to inspect the provinces in the royal interests, collecting information and revenue, and, incidentally, hearing lawsuits. Justice was thus dispensed in the king’s name by his delegates in every shire of England, and a distinction arose between two types of royal courts: (1) the King’s Council and its offshoots (including the three courts of common law and the court of chancery) which at first followed the king’s person, but gradually, as already shown,[549] found a settled home at Westminster; and (2) the courts of the itinerant justices which exercised such delegated authority as the Crown chose from time to time to entrust to them. The natural sphere of the labours of these royal commissioners as they passed from district to district was the court of each shire, specially convened to meet them. They formed in this way the chief link between the old local popular courts and the system of royal justice organized by Henry II.,[550] subordinating the former to the latter, until the county courts virtually became royal courts. These travelling justices passed through two stages, two different types receiving royal recognition at different periods, the Justices in Eyre and the Justices of Assize respectively.
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Footnote 549:
See supra, c. 17.
Footnote 550:
Cf. supra, p. 106.
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(a) The Justices in Eyre were the earliest form of travelling judges, though their original duties were rather financial and administrative, than strictly judicial. Their history extends from the reign of Henry I. to the end of the fourteenth century.[551] Their outstanding characteristics were the sweeping nature of the commissions under which they acted (ad omnia placita), the harsh and drastic way in which they used their authority, and their intense unpopularity. Their advent was dreaded like a pestilence: each district they visited was left impoverished by fines and penalties. On one occasion, the men of Cornwall “from fear of their coming, fled to the woods.”[552]
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Footnote 551:
See W. S. Houldsworth (History of English Law, p. 115), who cites 1397 as the date of the final abolition of Eyres.
Footnote 552:
This was in 1233: see Pollock and Maitland, I. 181.
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An eyre was only resorted to at long intervals—every seven years came to be the recognized term—and was intended as a severe method of punishing delinquencies and miscarriages of justice occurring since the last one, and of collecting arrears of royal dues. It was not a visit from these universally-hated Justices of Eyre that the barons in 1215 demanded four times a year.
(b) The Justices of Assize were also travelling judges, but in their original form at least, possessed hardly another feature in common with the Justices in Eyre. Their history extends from a period not earlier than the reign of Henry II. down to the present day.[553] They seem to have been popular from the first, as their primary function was to determine pending suits by a rational and acceptable form of procedure; while the scope of their jurisdiction, although gradually extended as their popularity increased, was at all times limited strictly by the express terms of their commissions. They were regarded not as royal tax-gatherers armed with harsh powers of coercion, but as welcome bearers of justice to the doors of those who needed it.
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Footnote 553:
Blackstone, Commentaries, III. 58, assigns 1176, (the assize of Northampton) as the date of their institution.
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At first their duties were confined to one species of judicial work, namely, to presiding at enquiries of the kind specially mentioned in the text. These particular inquests were known as “assizes,” and the new species of travelling judges were hence called “Justices of Assize,” a name which has clung to them for centuries, although their jurisdiction has been gradually increased till it now includes both civil and criminal pleas of every description, and although meanwhile the invention of new forms of process has superseded the old “assizes,” and at last necessitated their total abolition.[554] They are still “justices of assize” in an age which knows nothing of assizes.
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Footnote 554:
See Statute 3 and 4 William IV. c. 27 §§ 36-7. The last actual case of a Grand Assize occurred in Davies v. Loundes, in 1835 and 1838 (1 Bing. N. C. 597, and 5 Bing. N. C. 161).
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II. The Nature and Origin of the three Petty Assizes. The institution of the "assizes"—particular forms of the sworn inquest—occupied a prominent place among the expedients by which Henry II. hoped to substitute a more rational procedure for the form of proof known as trial by combat.[555]
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Footnote 555:
The name “Assize” is sometimes a source of confusion, because of the various meanings which attach to it. (1) Originally it denoted a session or meeting of any sort. (2) It came to be specially reserved for sessions of the king’s Council. (3) It was applied to any Ordinance enacted by the king in such a session, e.g. the Assize of Clarendon or the Assize of Northampton. (4) It was extended to every institution or procedure established by such royal ordinance, but (5) more particularly applied to the institutions or procedures known as the Grand Assize, and the Petty Assizes, from which the “Justices of Assize” took their name. (6) Finally, it denotes at the present day a “session” of these Justices of Assize, thus combining something of its earliest meaning with something of its latest. In certain contexts it has other meanings still, e.g. (7) an assessment or financial burden imposed at a “session” of the king’s council or of some other authority.
The duellum, introduced at the Norman Conquest, remained for a century thereafter the chief method in use among the upper classes for determining all serious pleas or litigations. Gradually, however, it was confined to two important groups of pleas, one civil and the other criminal: namely, appeals of treason and felony on the one hand, and suits to determine the title to land on the other.[556] This process of restriction was accelerated by the deliberate policy of Henry II., who attempted, indeed, to carry it much further, devising machinery which provided for the defendant or accused party, wherever possible, an option by resorting to which he could, in an ever increasing variety of circumstances, escape trial by battle altogether. Under chapter 36 will be explained the expedient adopted for evading combat in an appeal of treason or felony. The present chapter relates to the procedure devised by Henry for superseding the duellum in certain important groups of civil pleas,[557] and incidentally affords proof that this part of his reforms had already become popular with the opponents of the Crown. The frequent use of the three Petty Assizes was now insisted on, although the Grand Assize was still viewed askance for reasons to be explained in connection with chapter 34.
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Footnote 556:
See Neilson, Trial by Combat, 33–6, and authorities there cited.
Footnote 557:
Cf. supra, pp. 103-4 for the place of “combat” in legal procedure; and pp. 108-9 for Henry’s policy in discouraging it. For the later history of trial by battle, see infra, under c. 36.
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(1) The Grand Assize is not mentioned in Magna Carta; but some acquaintance with it is a necessary preliminary to a proper appreciation of the Petty Assizes. In the troubled reign of Stephen—which was rather the reign of anarchy in his name—lands changed hands frequently. This left to his successor a legacy of quarrels, too often leading to bloodshed. There was hardly an important estate in England to which, at Henry’s accession, two or more rival magnates did not lay claim. Constant litigations resulted, and the only legal method of deciding the issue was the duellum.
At some uncertain date, near the commencement of his reign, Henry II. introduced a startling innovation. The holder of a property de facto (that is the man in actual enjoyment of the estate in virtue of a bona fide title), when challenged to combat by a rival claimant was allowed an option: he might force the claimant (if the latter persisted) to refer the whole matter to the oath of twelve knights of the neighbourhood. Henry’s ordinance laid down careful rules for the appointment of these recognitors. Four leading knights of the whole county were first to be chosen, on whom was placed the duty of selecting twelve knights of the particular district where the lands lay, and these, with all due solemnity and in presence of the king’s justiciars, declared upon oath to which suitor the lands belonged. Their decision was final, and determined the question of ownership for all time coming.[558] The name Grand Assize was applied alike to the procedure and to the knights who gave the verdict. The twelve knights thus anticipated the functions of a modern jury, while the king’s justiciars acted like the presiding judge at a modern trial.[559]
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Footnote 558:
See Glanvill, II. 7.
Footnote 559:
The various steps in the procedure ought to be clearly grasped, (a) A claimant challenged the title of the actual tenant in the court baron of the lord, from whom the tenement was held, and offered battle by a champion, who was supposed to be a witness. (b) The tenant (now become a defendant) applied to the king for a royal writ, the issue of which, ipso facto, stopped all procedure in the court baron, (c) The claimant (plaintiff) had thus to make the next move; and Henry’s ordinance left only one move which he could make, namely to apply for a new royal writ, but one of a different kind. This new writ referred the question of title to twelve knights of the Grand Assize. (d) Before these could be appointed and give their verdict, many formalities and delays necessarily intervened, involving expensive journeys to the king’s Curia, first by the four appointing knights and afterwards by the twelve appointed. Months and even years might elapse before the final verdict was obtained. This ingenious reform, while superseding trial by battle, incidentally superseded also the jurisdiction of mesne lords. Hence the Grand Assize never became popular with the magnates. Cf. under c. 34.
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Valuable as was this innovation, it had one obvious defect. The option it conferred might sometimes be usurped by the wrong man. It was intended to operate in the interests of order and justice by favouring the peaceable holder de facto; but what if a turbulent and lawless claimant, scorning an appeal to legal process, took the law into his own hands, evicted the previous holder by the rude method of self-help, and thereafter claimed the protection of Henry’s ordinance? In such a case the man of violence—the holder mala fide—would enjoy the option intended for his innocent victim.
(2) The petty assizes may, perhaps, be regarded as the outcome of Henry’s determination to prevent such misuse of his new engine of justice. If one claimant alleged that the other had usurped his rights by violence or fraud, the king allowed the preliminary plea thus raised to be summarily decided by the oath of twelve local landowners, according to a procedure known as a petty assize. These petty assizes, of which there were three kinds, all related to questions of “possession,” as opposed to questions of “ownership,” which could only be determined by battle or by the Grand Assize.
(a) The assize of novel disseisin. The word “seisin,” originally synonymous with “possession” in general, was gradually restricted by medieval lawyers to the possession of real estate. “Disseisin” thus meant the interruption of seisin or possession of land; and was the technical term applied to such violent acts of eviction as were likely to defeat the intention of Henry’s ordinance of the Grand Assize. “Novel” disseisin implied that such violent ejection was of comparatively recent date, for a summary remedy could only be given where there had not been undue delay in applying for it. The first of the petty assizes, then, was a rapid and peaceable method of ascertaining by reference to sworn local testimony whether an alleged recent eviction had really taken place or not. Without any of the law’s delays, without any expensive journeys to the king’s Court or to Westminster, but in a rapid manner and in the district where the lands lay, twelve local gentlemen determined upon oath all allegations of this nature. If the recognitors of the petty assize answered “Yes,” then the evicted man would have “seisin” immediately restored to him, and along with “seisin” went the valued option of determining what proof should decide the "ownership"—whether it should be battle or the Grand Assize. An ordinance instituting this most famous of the three petty assizes was issued probably in 1166, a year fertile in legal expedients, and formed a necessary supplement to the ordinance of the Grand Assize, preventing all danger that the option intended for the man of peace should be usurped by the man of violence.[560]
(b) The assize of mort d’ancestor. The protection afforded to the victim of a “novel disseisin” did not remove all possibility of justice miscarrying. Interested parties, other than the man forcibly ejected, even his heirs, were left unprotected. Further, an heir might be forcibly deprived of his tenement either by his lord or by some other rival claimant before he had an opportunity to take possession; never having been “in seisin,” he could not plead that he had suffered “disseisin.” For the benefit of such an heir, a second petty assize, known as "mort d’ancestor," was invented.[561] This is mentioned in article 4 of the Assize of Northampton, an ordinance issued by Henry in 1176; and this earliest known reference probably marks its origin. Procedure, essentially similar to, though not quite so speedy or informal as, that already described was thus put at the heir’s disposal. If successful, he took the lands temporarily, subject to all defects in his ancestor’s title, leaving as before the question of absolute ownership to be determined (if challenged) by the more cumbrous machinery of the Grand Assize.
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Footnote 560:
The date of the ordinance of the Grand Assize is not known. It has been argued that its origin may be traced to an earlier date than that of the assize of novel disseisin (see Mr. J. H. Round in the Athenaeum for 28th January, 1899); but in any case the logical sequence seems to be that given in the text. The question of chronological sequence is still open.
Footnote 561:
At so late a date as 1267 it was found necessary to recognize by statute the right of the heir who had come of age to oust his guardian from his lands by an assize of mort d’ancestor. See Statute of Marlborough, c. 16.
(c) The assize of darrein presentment. Advowson or the right of appointing the incumbent to a vacant church benefice was then, as now, a species of real estate. Such patronage was highly prized, affording as it did an opportunity of providing a living for a younger son or needy relative; or it might be converted into ready cash. Disputes often arose both as to the possession and as to the ownership of advowsons. Any one who claimed the absolute right or property as against the holder must do so by battle or the Grand Assize, exactly as in the case of any other form of real estate; and the Charter says nothing on this head.[562] On the other hand, the less vital question of possession might be more rapidly determined. If a benefice fell vacant, and each of two proprietors claimed the patronage, the Church could not remain without a shepherd, for years perhaps, until the question of title was decided. No; the man in possession was allowed to make the appointment. But who was the man in possession? Clearly he who had (or whose father had) presented a nominee to the living when the last vacancy occurred. Even here there was room for dispute as to the facts. Twelve local men decided which claimant had actually made the last appointment (the “darrein presentment”); and the claimant thus preferred had a legal right to fill up vacancies, remaining in possession until someone proved a better title by battle or the Grand Assize.
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Footnote 562:
Such was the law as late as 1285. The Statute of Westminster II. (13 Edward I. c. 5) authoritatively explains that, when any one had wrongfully presented a clerk to a vacant church, the real patron could not recover his advowson except by a writ of right “quod habet terminari per duellum vel per magnam assisam.”
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All three forms of the petty assize were merely new applications by Henry Plantagenet of the royal procedure known in England, since the Norman Conquest, as inquisitio or recognitio.[563]
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Footnote 563:
The relations of the assizes to the ancient inquisitio and to the modern jury are discussed supra, pp. 158-163.
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III. The Assizes in 1215. The petty assizes, when invented by Henry II., were resented bitterly as innovations; but public opinion, half a century later, had abundantly vindicated the wisdom of this part of his reforms. The insurgent barons in 1215 were far from demanding their abolition; their new grievance was rather that sessions of the justices of assize were not held often enough. They prescribed the way in which these assizes, now grown so popular, were to be held, and several points were specially emphasized. (1) No inquiry of the kind was to be held elsewhere than in the county where the property was situated. Justice was in such cases to be brought to every landowner’s door, although pleas of the Crown might still follow the king, and ordinary common pleas had to be taken to Westminster. This was intended to save expense and to meet the convenience of litigants, of those who served on assizes, and of all concerned.[564] Within two years, however, it was seen that this provision went too far. It was more convenient to hold certain inquiries before the Bench at Westminster than in the particular locality. The reissue of 1217 therefore made two important modifications: (a) All assizes of darrein presentment were thereafter to be taken before “the Justices of the Bench.” (b) Any assize of novel disseisin or of mort d’ancestor revealing points of special difficulty, might also be reserved for the decision of the Bench. An element of uncertainty was thus introduced, of which the Crown took advantage. In a reported case of the year 1221 it was decided that an assize of mort d’ancestor should be held in its own county, not at Westminster.[565]
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Footnote 564:
Thus two successive chapters of Magna Carta emphasize two divergent tendencies: c. 17 had demanded that “common pleas” should all be held at Westminster, while c. 18 demands that “assizes” should not be taken there. In both cases, the object was to consult the convenience of litigants.
Footnote 565:
See Bracton’s Note Book, case No. 1478; a case also cited by Coke (Second Institute, proem.). If this assize had presented points of special difficulty it might have been held at Westminster without violating Magna Carta.
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(2) John’s Charter further insists on quarterly circuits of Justices of Assize; so that litigants in every county of England might have four opportunities each year of having their disputes amicably settled. Such excessive frequency was quite uncalled for, and involved unnecessary expense on the king, and an amount of labour on his officers out of all proportion to the good effected. The Charter of 1217, accordingly, provided that a circuit should be made only once a year. In 1285, however, it was enacted that they might be held three times a year, but not oftener.[566]
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Footnote 566:
13 Edward I. c. 30. Stephen, History of Criminal Law, 105–7, gives further details.
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(3) The Charter speaks of the two justices and of the four county knights, but says nothing of the twelve knights from the immediate neighbourhood of the disputed property. The omission has no special significance. Magna Carta had no directions to convey on this matter, and therefore it kept silence; but the presence of the twelve must have been presumed, since their verdict formed the essential feature of the entire procedure.[567] The twelve formed the jury, and the two justices were the judges, while the chief duty of the four was to select the twelve. The chapter directed the justices “to hold the assizes along with the four knights”; but it does not appear whether the latter were to sit as local assessors of the court, or to serve along with the twelve recognitors, or to act as a link between the two.
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Footnote 567:
See Assize of Northampton, c. 4.
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(4) One fact about them was clearly stated, namely, the mode of their appointment. The four knights were to be “elected” in the county court (cum quatuor militibus ... electis per comitatum), and much emphasis has been laid on this provision by historians searching for ancient prototypes of modern institutions. These knights have been warmly welcomed as county magistrates elected on a more or less extended suffrage.[568]
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Footnote 568:
See, e.g. Stubbs, preface to R. Hoveden, IV. xcviii.; Blackstone, Great Charter, xxxvi.; Medley, Engl. Const. History, 130.
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As the provisions of the reissue of 1217 are more carelessly expressed, and as in particular they contain no word implying “election,” it has been assumed that a change in the mode of appointment was intended; that a step tentatively taken towards representative local government in 1215 was deliberately retraced two years later.[569] “Electus” however, in medieval Latin was a vague word, differing widely from the ideas usually associated with a modern “election,” and applied indiscriminately to all methods of appointment or selection, even to the proceedings of officers engaged by Edward I. to compel the enlistment of the best soldiers available for his army. The twelve knights were to be “appointed,” not “elected,” in the county court, and it remains doubtful whether the sheriff, the magnates, or the body of the suitors, would have secured the chief share in the appointment. No evidence is forthcoming that any special importance was attached in 1217 to the use of the word “electus,” and its omission may have been due to inadvertence.
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Footnote 569:
Blackstone, Ibid., points out these changes in the charter of 1217: “the leaving indefinite the number of the knights and the justices of assize, the abolishing of the election of the former, and the reducing the times of taking assizes to once in every year.”
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IV. An Erroneous View. Henry Hallam, commenting on this chapter, seems to have misapprehended the issues at stake. "This clause stood opposed on the one hand to the encroachments of the king’s court, which might otherwise, by drawing pleas of land to itself, have defeated the suitor’s right to a jury from the vicinage: and, on the other, to those of the feudal aristocracy, who hated any interference of the Crown to chastise their violations of law, or control their own jurisdiction."[570] Hallam thus interprets the chapter as denoting a triumph of the old local popular courts over both the king’s courts and the courts of the feudal magnates. It denoted no such thing, but marked in reality a triumph (so far as it went) of the king’s courts over the tribunals of the feudal magnates—over the courts baron, as they were afterwards called, the most important of the three courts into which manorial jurisdictions afterwards split. The assizes, it is true, were to be taken in the county court, but they were to be taken there by the king’s justices, not by the sheriff. The county courts by this time had fallen completely under the domination of the king, and were to all intents and purposes (and in especial for this purpose) royal courts. The present chapter is thus conclusive evidence of the triumph of the king’s justice over all rivals in three important groups of pleas. Royal justice was the best article in the market, and, in spite of all defects, deserved the popularity which in this province it had evidently won, even among the barons whose jurisdiction it was superseding.
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Footnote 570:
See Middle Ages, II. 464.
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V. Later History of the Justices of Assize. Whatever may have been the exact date when there first went on tour throughout England travelling judges entitled to the description of “Justices of Assize,” such circuits, once instituted, have continued to be held at more or less regular intervals from the beginning of the thirteenth century to the present day. Their jurisdiction steadily widened under successive kings, from Henry II. to Edward III.; and they gradually superseded the older Justices of Eyre, taking over such of their functions as were not inconsistent with the change that was gradually transforming the medieval into the modern system of justice.[571] It was the custom for the Crown to issue new commissions to the justices as they set out upon each new circuit. Five distinct types of such commissions conferred jurisdiction over five different departments of judicial business.
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Footnote 571:
Cf. Coke, First Institute, 293 b.: “As the power of justices of assises by many acts of parliament and other commissions increased, so these justices itinerant by little and little vanished away.”
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(1) The commission of assize was the earliest of all, authorizing them to hold petty assizes, but not the grand assize. Of this sufficient has already been said.
(2) The commission of nisi prius conferred a wider civil jurisdiction, embracing practically all the non-criminal pleas pending at the time in the counties which they visited. These powers were originally based on the terms of the Statute of Westminster II., which became law in 1285,[572] and directed that all civil pleas (under certain exceptions) might be heard in their own counties. Thenceforward most ordinary suits might be tried either locally before the justices of assize, or else before the bench at Westminster. The statute directed, however, that sheriffs, in summoning jurors to Westminster, were only to do so conditionally—jurors were to attend there unless already (nisi prius) the justices of assize had come into the county; that is, if the justices arrived meanwhile in the locality, the jurors and all others concerned were saved a journey, and the pleas in question were heard on the spot. The commissions under which the travelling justices heard locally such civil pleas were therefore known as “Commissions of nisi prius.”
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Footnote 572:
13 Edward I. c. 30.
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(3) The commission of gaol delivery was, subsequently to 1299, invariably conferred on the justices of assize, in accordance with a statute of that year,[573] authorizing them to inspect all gaols and enquire into all charges against prisoners, and to set free those unjustly detained. Previously, similar powers had been spasmodically conferred on separate commissioners, sometimes quite unfit for such a trust, who had too often abused their authority.
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Footnote 573:
27 Edward I. c. 3.
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(4) Commissions of Oyer and Terminer, issued spasmodically from as early a date as 1285,[574] to more or less responsible individuals, were from 1329 onwards conferred exclusively on the justices of assize, who thus obtained authority[575] “to hear and determine” all criminal pleas pending in the counties they visited. This, combined with the commission of gaol delivery, amounted to a full jurisdiction over crimes and criminals of every kind and degree; just as the commissions of assize and nisi prius combined gave them full jurisdiction over all civil pleas.[576]
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Footnote 574:
13 Edward I. c. 39; see Stephen, Hist. Criminal Law, p. 106.
Footnote 575:
2 Edward III. c. 2. Ibid., 110.
Footnote 576:
It is unnecessary to do more than notice the exceptional “commissions of trailbaston,” supposed to date from the Statute of Rageman (1276), conferring special powers for the suppression of powerful wrongdoers. These were soon superseded by the commissions of oyer and terminer.
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(5) The ordinary commission of the peace was invariably issued to the justices of assize from the reign of Edward III., conferring on them powers similar to those of the local justices of peace in every county which they might visit.
By a process of the survival of the fittest the justices of assize, from the small beginnings referred to in John’s Great Charter, thus gradually gathered to themselves the powers exercised originally by various rival sets of commissioners; and they have continued for many centuries to perform the functions conferred by these five different commissions, forming a characteristic and indispensable part of the judicial system of England.[577]
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Footnote 577:
Mr. W. S. Holdsworth, Hist. Eng. Law, 116–123, gives an admirable and concise account of the justices and their commissions. For fuller information see Stephen, Hist. Criminal Law, I. 97-111.
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CHAPTER NINETEEN.
Et si in die comitatus assise predicte capi non possint, tot milites et libere tenentes remaneant de illis qui interfuerint comitatui die illo, per quos possint judicia sufficienter fieri, secundum quod negocium fuerit majus vel minus.
And if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less.
This supplement to the preceding chapter prescribed the course to be followed when the press of other business had prevented some of the assizes on the agenda from being disposed of on the court day. The shiremoot lasted for one day only, and to hold an adjourned session of all the suitors on the morrow would inflict hardship on those whose presence was required elsewhere. The framers of the charter were met by a dilemma in seeking to combine the rapid dispatch of business with the minimum of inconvenience to those who came to make the court.
The Articles of the Barons had made two definite demands not readily reconciled; namely that none save jurors and the parties to pending suits should be summoned to meet the justices of assize on their quarterly rounds (article 8); and that assizes should be “shortened” (article 13), which simply meant that the law’s delays should cease.
The terms of Magna Carta, as befitted a carefully-drawn, business-like document, were more precise. They made it clear that assizes in the normal case should be held in the county court—a point upon which the Articles had been silent. This was a salutary provision, since a healthy publicity accompanied the proceedings of the full shire-moot. Nothing was said of “shortening” the procedure; and the Charter showed its appreciation of the fact that there might be more business than could be got through in one day. If that happened, a compromise must be made between the claims of litigants wishing their pleas hastened and the desire of other people to be discharged from further attendance. The justices were directed to complete their labours on the morrow, but were forbidden to retain anyone in attendance except the actual parties to suits and a sufficient number of jurors. Those whom Magna Carta thus compelled to wait a second day were exactly those whose presence the Articles had stipulated for upon the first day—not admitting, indeed, the possibility that a second day might be required. The discrepancy between the schemes of the two documents might be explained on the supposition that the device of timing the visit of the justices with the date of holding the monthly shiremoot was only thought of after the Articles of the Barons had been sealed.[578]
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Footnote 578:
Subsequent practice did not conform to this rule. One novel disseisin, or one mort d’ancestor might be held by itself; and complaint was made in 1258 that the sheriffs proclaimed in the market places that all knights and freeholders must assemble for such an inquest, and when they came not, amerced them at will (pro voluntate sua). See Petition of Barons, c. 19 (Sel. Charters, 385).
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The Charter of 1217 made a different provision for the same contingency. Unfinished assizes need no longer be taken in their own county on the day following the county court, nor, indeed, on any other day. The judges received full authority to bring them to a conclusion elsewhere on their circuit according as it might suit their convenience. This concession to the justices, taken in connection with the further provisions of 1217, reserving all darrein presentments, together with other assizes of any difficulty, for the decision of the bench, shows a comparative disregard of the convenience of jurors, who might, in the option of the justices, find themselves compelled either to follow the assizes from shire to shire, or else to undertake the irksome journey to Westminster, from which the Charter of 1215 had relieved them.[579]
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Footnote 579:
Subsequent legislation vacillated between two policies, actuated at times by a desire to restrain the discretionary powers of the justices; and at others by experience of the way in which strict adherence to inflexible rules was found to inflict hardships upon litigants. The Statute of Westminster II. (13 Edward I. c. 30) confirmed the power of the justices to reserve cases of mort d’ancestor for decision by the bench, and per contra allowed assizes of darrein presentment (which it associated in this connection with inquests quare impedit) to be taken “in their own counties.” The Act 6 Richard II. c. 5 curtailed the discretionary powers previously conferred, directing that justices assigned to take assizes and to deliver gaols should hold sessions in the county towns in which the shire courts were wont to be held. The Statute 11 Richard II. c. 11 once more relaxed this rule, alleging that it had resulted in the inconvenience of suitors. Therefore authority was given to the chancellor, with the advice of the justices, to determine in what places assizes might be held, notwithstanding the provisions of the Statute of five years previous.
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CHAPTER TWENTY.
Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et villanus eodem modo amercietur salvo waynagio suo, si inciderint in misericordiam nostram; et nulla predictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de visneto.
A freeman shall not be amerced for a small offence, except in accordance with the degree of the offence; and for a grave offence he shall be amerced in accordance with the gravity of his offence, yet saving always his “contenement”; and a merchant in the same way, saving his wares; and a villein shall be amerced in the same way, saving his wainage—if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighbourhood.
This is the first of three consecutive chapters which seek to remedy grave abuses connected with royal amercements. To understand fully what these were requires some knowledge, not only of the system of legal procedure of which they formed part, but also of previous systems.
I. Three stages of criminal law. The efforts made in medieval England to devise machinery for suppressing crime took various forms. Three periods may be distinguished.
(1) The bloodfeud. The earliest method of redressing wrongs of which any evidence survives was the practice of retaliation, or the bloodfeud. The injured man, or his heir if he were dead, took the law into his own hands and exacted satisfaction by the aid of battle-axe or spear. This right of vengeance, formerly clothed with the entire sanction of the law, had practically disappeared before the dawn of authentic history in England; but its previous existence may be confidently inferred from certain traces which it left on the laws of a later period.
(2) Fixed money-payments. At some early, but uncertain, date it had become customary to accept money in lieu of vengeance. The new practice, at first exceptional, and applied to cases only of accidental injury, was gradually extended to all cases in which the wronged individual was willing to accept a compromise. It was made compulsory on evil-doers to offer solatium in money for every crime committed, and finally it was made compulsory also upon the injured man to accept it when offered. At this stage the right of private revenge had become almost a thing of the past. It was lawful only after the aggrieved individual had demanded, and been refused, compensation at the recognized rate.
Various codes formulated intricate rules for determining the amounts thus payable. Each man had his own money value or wer (from the simple freeman, reckoned at 200 shillings, up to the prelates and lay nobles, estimated at much higher figures). These were the legal values at which each man’s life was appraised. Smaller wrongs could be compensated by smaller sums in name of damages, known as bots: so much for a foot, or an eye, or a tooth. The king or other feudal lord exacted further payment from the wrong-doer, under the name of wites, which are sometimes explained as the price charged by the magistrate for enforcing payment of the wer or bot; sometimes as sums due to the community, on the ground that every evil deed inflicts a wrong on society in general, as well as upon its victim.
(3) Amercements. A third system succeeded. This was of extreme simplicity and differed widely in many ways from the complicated system it superseded. It is found in full working order very shortly after the Norman Conquest, but was still regarded as an innovation at the accession of Henry I. It is known as the system of amercements. None of our authorities contains an entirely satisfactory account of how the change took place, but the following suggestions may be hazarded. The sums demanded from a wrong-doer, who wished to buy himself back into the protection of the law, and into the community of well-doers, became increasingly burdensome. He had to satisfy the claims of the victim’s family, of the victim’s lord, of the lord within whose territory the crime had been committed, of the church, mayhap, whose sanctuary had been invaded, of other lords who could show an interest of any sort, and finally of the king as lord paramount. It became practically impossible to buy back the peace once it had been broken. The Crown, however, stepped in, and offered protection on certain conditions: the culprit surrendered himself and all that he had to the king, placing himself “in misericordiam regis,” and delivering a tangible pledge (vadium) as evidence and security of the surrender.[580]
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Footnote 580:
See Charter of Henry I. c. 8, which however, condemns the whole practice among the other innovations of the Conqueror and Rufus.
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Although in theory the wrongdoer put his property unreservedly at the king’s disposal, there was a tacit understanding that he should receive in return, not only a free pardon, but also the restoration of the balance of his effects, after the king had helped himself to a share. Such a course, at first optional, would gradually come to be followed with absolute uniformity. By-and-by, it was assumed that every culprit wished to avail himself of this means of escape, and thus the words “in mercy” were written in court records as a matter of course, after the name of every one convicted of a crime.
It is easy to understand why the Norman kings favoured this system; for the Crown thus got whatever it chose to demand, while other claimants got nothing. Gradually, then, the old complicated system of wers and bots and wites became obsolete and was in time forgotten altogether; the system of amercements reigned in its stead. Strictly speaking, the man’s life and limbs and all that he had were at the king’s mercy.[581] The Crown, however, found that it might defeat its own interests by excessive greed; and generally contented itself with exacting moderate sums. Soon, rules of procedure were formulated for its own guidance. The amounts taken in each case were regulated partly by the wealth of the offender, and partly by the gravity of the offence. Further, it became a recognized rule that the amount should be assessed by what was practically a jury of the culprit’s neighbours; and attempts were also made to fix a maximum.[582]
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Footnote 581:
See Dialogus de Scaccario, II. xvi.
Footnote 582:
Cf. Pollock and Maitland, II. 511-4. There were, however, exceptions, e.g. Henry II. would not accept money payments for certain forest offences. Mutilation was inflicted. See Assize of Woodstock, c. 1, and contrast Forest Charter of 1217, c. 10.
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Thus a sort of tariff grew up, defining the amounts to be exacted for various offences of most general occurrence. The Crown and its officials usually respected this in practice, but never formally abandoned the right to demand more. Such payments were known as “amercements” and were always technically distinguished from “fines” (or voluntary offerings). Records, still extant, of the reign of John show us that for very petty offences, men were constantly placed “in mercy”; for example, for failure to attend meetings of the hundred or county court; for false or mistaken verdicts; for petty infringements of the king’s forest rights; and for a thousand other trivial faults. Every man who raised an action and failed in it was amerced. It will be readily understood how important it was that these amercements, forming so tempting a source of revenue to the exchequer, should not be abused. The Charter of Henry I. (chapter 8) had promised a remedy, drastic indeed but of a reactionary and impossible nature. He there agreed to abolish altogether the system of amercements (then of recent introduction) and to revert to the earlier Anglo-Saxon system of bots and wites, already discussed. This promise, like others, of Henry I. was made only to be broken.[583]
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Footnote 583:
Cf. Pollock and Maitland (II. 512), who describe Henry’s promise as “a return to the old Anglo-Saxon system of pre-appointed wites.” In order to avoid unnecessary confusion, no mention has been made in the account given above of a classification of amercements into three degrees, which increases the obscurity surrounding their origin. The Dialogus de Scaccario, II. xvi., tells how (a) for grave crimes, the culprit’s life and limbs were at the king’s mercy as well as his property; (b) for less important offences, his lands were forfeited, but his person was safe; while (c) for minor faults, his moveable effects only were at the king’s disposal. In the last case, the offender was “in misericordia regis de pecunia sua.” Thus to be “in mercy” did not always mean the same thing. Further, a villein or dependent freeman on a manor might fall in the “mercy” of his lord, as well as of the king. The records of manorial courts are full of petty amercements for petty transgressions of the customs of the manor.
II. Magna Carta and Amercements. All classes had an interest in this subject, since no one could expect to pass through life (perhaps hardly through a single year) without being subjected to one or more amercements. Three chapters of Magna Carta accordingly are occupied with remedies. Chapter 20 seeks to protect the ordinary layman; chapter 21, the barons; and chapter 22, the clergy—thus vaguely anticipating the conception of three estates of the realm;—commons, nobles and clergy. The “third estate” is further analysed for the purposes at least of this clause, into three subdivisions—the freeman, the villein, and the merchant.[584]
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Footnote 584:
Even Coke (Second Institute, p. 27) has to confess that for the purposes of this chapter at least he must abandon the attempt made elsewhere (Ibid., p. 4, and p. 45) to bring the villeins into the class of freemen. Under the plea that the villein was relatively free as against third parties except his lord, he claimed for him all the benefits secured by anticipation in chapter 1 of the Charter, and he made a special application of the same doctrine in connection with the right to judicium parium secured to all freemen by chapter 39 (q.v.). Here, however, he is forced to admit the distinction between freeman and villein, the former term being, for the purpose of amercements, virtually identified with “freeholder.”
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(1) The amercement of the freeholder. The great object of the reforms here promised was to eliminate the arbitrary element; the Crown must conform to its own customary rules. With this object, various safeguards were devised to regulate the amercing of freemen. (a) For a petty offence, only a petty sum could be taken. This was nothing new: the records of John’s reign show that, both before and after 1215, very small amounts were often taken: three-pence was a common sum. (b) For grave offences, a larger sum might be assessed, but not out of proportion to the offence. (c) In no case must the offender be pushed absolutely to the wall. His means of livelihood must be saved to him. Even if all other effects of the defaulting freeman had to be sold off to pay the amount assessed, he was to retain his ancestral freehold (or “contenement,” a word to be afterwards discussed). He might, however, find himself liable for a large sum which he had to pay off by instalments during many years. (d) Another clause provided machinery for giving effect to all these rules. The amount of the amercement must be fixed, not arbitrarily by the Crown, but by impartial assessors, “by the oath of honest men of the neighbourhood.”
It seems probable that all these provisions were declaratory of existing usage, that is of the usage of John’s reign; but, apparently, a different procedure and one less favourable to wrong-doers had been in vogue, so recently as the reign of Henry II. Amercements had then been assessed, not by local jurors but, by the barons of the exchequer, who might, however, where arrears were still due, revise their own findings of previous years.[585]
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Footnote 585:
See note by editors of Dialogus de Scaccario, p. 207.
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The Pipe Roll of the fourteenth year of Henry II.[586] shows how a certain priest, who in this respect stood on precisely the same footing as a layman, had been placed “in misericordiam” of 100 marks by William fitz John, one of the king’s justices, but how that sum was afterwards reduced to 40 marks “per sacramentum vicinorum suorum.” It seems a safe inference that, on the priest pleading poverty, the question of his ability to pay was referred to local recognitors with the result stated. This priest was subsequently pardoned altogether “because of his poverty.” His case illustrates how an important change was gradually effected. Local jurors first assisted, and then superseded, the barons of exchequer in assessing the amounts payable as amercements. This important boon, which transferred the decision from unsympathetic Crown officials to the defaulter’s own neighbours, was confirmed by Magna Carta to all clergy and to all members of the third estate. It will be shown, in connection with chapter 21, how earls and barons lost a similar privilege.[587]
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Footnote 586:
Madox, I. 527.
Footnote 587:
Reeves, History of English Law, I. 248 (Third Edition) says “Upon this chapter was afterwards framed the writ de moderata misericordia, for giving remedy to a party who was excessively amerced.”
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(2) The amercement of the merchant. The provisions in favour of freeholders were extended to members of the trading classes. One modification, however, had to be made. In the normal case, the merchant’s means of livelihood were his wares, not his freehold. These wares, accordingly, were saved to him, not his “contenement” (if he had one). The traders of many favoured towns, however, had already gained special privileges in this as in other matters, and these had received a general confirmation from chapter 13 of the Great Charter. Some boroughs had anticipated Magna Carta by obtaining in their own special charters either a definition of the maximum amercement exigible, or in some cases, by a definition of the amercing body. Thus, John’s Charter to Dunwich of 29th June, 1200,[588] provides that the burgesses shall only be amerced by six men from within the borough, and six men from without. The capital had special privileges: in his Charter to the Londoners, Henry I. had promised that no citizen in misericordia pecuniae should pay a higher sum than 100s. (the amount of his wer).[589] This was confirmed in the Charter of Henry II., who declared “that none shall be adjudged for amercements of money, but according to the law of the city, which they had in the time of King Henry, my grandfather.”[590] John’s Charter to London of 17th June, 1199, also specially referred to this;[591] and the general confirmation of customs contained in chapter 13 of Magna Carta would further strengthen it. In all probability, it covered trivial offences only (such as placed the offender in the king’s hands de misericordia pecuniae). The present chapter is wider in its scope, applying to great offences as well as to small ones, and embracing merchants everywhere, not merely the burgesses of chartered towns.
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Footnote 588:
Rotuli Chartarum, 51.
Footnote 589:
See Select Charters, 108.
Footnote 590:
See Birch, Historical Charters of London, p. 5.
Footnote 591:
Ibid., p. 11.
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(3) The amercement of the villein. The early history of villeins as a class is enveloped in the mists which still surround the debateable question of the rise of the English manor. Notwithstanding the brilliant efforts of Mr. Frederic Seebohm[592] to find the origin of villeinage in the status of the serfs who worked for Roman masters upon British farms or villae long before the Teutonic immigrations began, an older theory still holds the field, namely, that the abject villeins of Norman days were the descendants of the free-born “ceorls” of Anglo-Saxon times. On this theory—the orthodox one, and rightly so, since it is supported by the greater weight of evidence—most of England was once cultivated by free Anglo-Saxon peasant proprietors originally grouped in little societies each of which formed an isolated village. These free villagers were known as “ceorls,” to distinguish them from the gentry or nobility called “eorls,” who enjoyed social consideration but (so it is usually argued) no unfair political advantages on the score of their noble blood. The “ceorls” were slowly sinking from their originally free estate during several centuries prior to 1066: but the process of their degradation was completed rapidly and roughly by the harsh measures of the Norman conquerors. The bulk of the once free peasantry were crushed down into the dependent villeins of the eleventh and twelfth centuries.
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Footnote 592:
See English Village Community, passim.
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Whichever theory may be the correct one, the position, economic, legal, and political, of the villeins in the thirteenth century has at the present day been ascertained with accuracy and certainty. Economically they were reckoned part of the necessary equipment of the manor of their lord, whose fields they had to cultivate as a condition of being left in possession of acres which had once been, in a more real sense, their own. The services to be exacted by the owner of the manor, at first vague and undefined, were gradually specified and limited. They varied from century to century, from district to district, and even from manor to manor; but at best the life of the villein was, as a contemporary writer has described it, burdensome and wretched (graviter et miserabiliter). After his manifold obligations were discharged, little time was left him for the ploughing and reaping of his own small holding. The normal villein possessed his portion of land, of a virgate or half virgate in extent (thirty or fifteen scattered acres) under a tenure known as villenagium, sharply distinguished from the freeholder’s tenures, whether of chivalry, serjeanty, or socage. He was a dependent dweller on a manor which he dared not quit without his master’s leave. It is true that he had certain rights of a proprietary nature in the acres he claimed as his own; yet these were determined, not by the common law of England, but by “the custom of the manor,” or virtually at the will of the lord. These rights, such as they were, could not be pled elsewhere than before the court customary of that manor over which the lord’s steward presided with powers wide and undefined. Legally speaking, the villein was a tenant-at-will whom the lord could eject without the interference of any higher tribunal than his own. Politically, however, the position of the villein was peculiar. While allowed to enjoy none of the privileges, he was yet expected to perform some of the duties, of the freeman. He attended at the shire and hundred courts, acted on juries, and performed other public functions, thus suffering still further encroachments on the scanty portion of time which he might call his own, but preserving for a brighter day some vague tradition of his earlier liberty. The fact that such public duties were performed by the villein, lends strong support to those who argue in favour of his descent from the old “ceorl” who enjoyed all the rights, as well as performed all the obligations, of the free. Such duties would never have been required from a race of hereditary slaves; but it is easy to understand how men originally free might be gradually robbed of their legal rights, while left to perform legal duties of a kind so useful to society and to their masters.
The words of this chapter of Magna Carta undoubtedly extend some measure of protection to villeins. Two questions, however, may be asked:—What measure, and from what motive? Answers are called for, because of the importance attached to this clause by writers who claim for Magna Carta a popular or democratic basis. One thing is clear: the villeins were protected from the abuse of only such amercements as John himself might inflict, not from the amercements of their manorial lords; for the words used are “si inciderint in misericordiam nostram.” A villein in the king’s mercy shall enjoy the same consideration as the freeholder or the merchant enjoys in similar plight—his “wainage,” that is his plough with its accoutrements, including possibly the oxen, being saved to him. What is the motive of these restrictions? It is usually supposed to have been clemency, the humane desire not to reduce the poor wretch to absolute beggary. It is possible, however, to imagine an entirely different motive; the villein was the property of his lord, and the king must respect the vested interests of others. That he might do what he pleased with his own property, his demesne villeins, seems clear from a passage usually neglected by commentators, namely, chapter 16 of the reissue of 1217. Four important words limiting the restraints on the king’s power are there introduced—villanus alterius quam noster. The king was not to inflict absolutely crushing amercements on any villeins “other than his own,” thus leaving the villeins on ancient demesne unreservedly in his power.[593]
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Footnote 593:
Thomson, Magna Charta, p. 202, seems completely to have misunderstood this 16th chapter of the reissue of 1217, construing the four interpolated words in a sense the Latin will not bear, viz.:—“A villein, although he belonged to another.” The view here taken of the motive for protecting villeins is strengthened by the use of the peculiar phrase, “vastum hominum” in chapter 4 (q.v.).
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It must not be thought, however, that the position of the king’s villeins—“tenants on ancient demesne,” as they were technically called—was worse than that of the villeins of an ordinary unroyal manor. On the contrary, it has been clearly shown[594] that the king’s peasants enjoyed privileges denied to the peasants of other lords. Magna Carta—that "bulwark of the people’s rights"—thus left the great bulk of the rural population of England completely unprotected from the tyranny of their lords in amercements as in other things. The king must not take so much from any lord’s villeins as to destroy their usefulness as manorial chattels; that was all.[595]
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Footnote 594:
Notably by Professor Vinogradoff in his Villeinage in England, passim.
Footnote 595:
The wide gulf which separated the villein from the freeman in this matter of amercements is shown by an entry on the Pipe Roll of 16 Henry II. (cited Madox, I. 545) Herbertus Faber debet j marcam pro falso clamore quem fecit ut liber cum sit rusticus. A villein might be heavily amerced for merely claiming to be free. It is peculiarly difficult to reconcile any theory of the villein’s freedom with the doctrine of Glanvill, V. c. 5, who denies to everyone who had been once a villein the right to “wage his law,” even after emancipation, where any third party’s interests might thereby be prejudiced.
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(4) The difference between fines and amercements. In the thirteenth century these terms were sharply contrasted. “Amercement” was applied to such sums only as were imposed in punishment of misdeeds, the law-breaker amending his fault in this way. He had no option of refusing, and no voice in fixing the amount assessed upon him. “Fine,” on the contrary, was used for voluntary offerings made to the king with the object of procuring some concession in return—to obtain some favour or to escape some punishment previously decreed. Here the initiative rested with the individual, who suggested the amount to be paid, and was, indeed, under no legal obligation to make any offer at all. This distinction between fines and amercements, absolute as it was in theory, could readily be obliterated in practice. The spirit of the restriction placed by this chapter and by the common law upon the king’s prerogative of inflicting amercements could usually be evaded by calling the sums exacted “fines.” For example, the Crown might imprison its victims for an indefinite period, and then graciously allow them to offer large payments to escape death by fever or starvation in a noisome gaol. The letter of Magna Carta was in this way strictly observed, since the prisoner was nominally as free to abstain entirely from offering as was the king to reject all offers until the figure was sufficient to tempt his greed. Enormous fines might thus be taken; while royal officials were strictly forbidden to inflict arbitrary amercements.
With the gradual elimination of the voluntary element the word “fine” came to bear its modern meaning, while “amercement” dropped out of ordinary use.[596]
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Footnote 596:
Cf. infra, c. 55, which supplements this chapter, providing for the cancellation of all amercements unjustly inflicted in the past, whereas this chapter seeks to prevent the infliction of new ones in the future.
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(5) Contenement. This word, which occurs in Glanvill[597] and in Bracton,[598] and also (in its French form) in the Statute of Westminster, I.,[599] as well as in Magna Carta, has formed a text for many laboured and unsatisfactory explanations from the days of Sir Edward Coke[600] to our own.
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Footnote 597:
IX. 8.
Footnote 598:
III. folio 116 b.
Footnote 599:
3 Edward I. c. 6.
Footnote 600:
Second Institute, p. 27.
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There seems to be no real obscurity, however, since it is clearly a compound of "tenement"—a word well known as an exact technical term of feudal conveyancing—and the prefix “con.” A “tenement” is precisely what a freeman might be expected to have, namely, a freehold estate of his own. The “con” merely intensifies the meaning, emphasizing the closeness of the connection between the freeman and his land. Any other tenements he had might be taken away, without inflicting extreme hardship; but to take from him his "contenement"—his ancestral lands—would leave him poor indeed.
The word occurs, not only in Glanvill and Bracton, but also in several entries on the Exchequer Rolls of Henry III. and Edward I., collected by Madox,[601] and by him collated with other entries which throw light on the way in which a “contenement” might be saved to the man amerced. Thus in 40 Henry III. the officials of the exchequer, after discussing the case of an offender who had failed to pay an amercement of 40 marks, ordered inquiry to be made, “how much he was able to pay the king per annum, saving his own sustenance and that of his wife and children,” an excerpt which illustrates also the more humane side of exchequer procedure. In 14 Edward I. again, the officials of that day, when ferreting out arrears, found that certain poor men of the village of Doddington had not paid their amercements in full. An inquiry was set on foot, and the barons of exchequer were ordered to fix the dates at which the various debtors should discharge their debts (evidently an arrangement for payment by instalments) “salvo contenemento suo.”[602]
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Footnote 601:
See II. 208-9.
Footnote 602:
See Madox, Ibid.
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These illustrations of the actual procedure of later reigns, in agreeing so closely with the rules laid down by the Great Charter, show how a man’s contenement might be saved to him without any loss to the Crown. Magna Carta apparently desires that time should be granted in which to pay up debts by degrees. Meanwhile, the amerced man was not forced to sell such holding (or wares, or wainage) as was necessary to maintain him with his wife and family. Leniency, in the long run, might prove best for all concerned, the Crown included.
CHAPTER TWENTY-ONE.
Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti.
Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offence.
The amercement of earls and barons. The barones majores, as matter of course, intended to secure for themselves privileges at least equal with those of the ordinary freeholder. In assessing their amercements, both the gravity of the offence and their ability to pay (as measured by their property) would naturally be considered. Magna Carta mentions only the former criterion—it was, indeed, unnecessary to call the king’s attention to the fact that more could be taken from their wealth than from the ordinary freeholder’s comparative poverty. The saving of a “contenement” to them would also naturally be assumed. One vital difference, however, was distinctly stated. The amercing body was not to be a jury of good men of the locality; but a jury of their “peers.”[603] The barons here asked only what was their undoubted right—to have the amount of their forfeits determined neither by their feudal inferiors (freeholders of their own or of other mesne lords) nor yet by Crown officials, but by magnates of their own position and with interests in common. This was not an innovation. Mr. Pike[604] has shown how, in Richard’s reign, barons were not amerced with the common herd: at an eyre held at Hertford in 1198-9, a list of those amerced was drawn up and definite sums were entered after each name, with two exceptions, Gerald de Furnivall and Reginald de Argenton, each of whom was reserved for special treatment “as a baron.” A local jury had evidently on the spot assessed the amercements of villeins and ordinary freeholders (in exact accordance with the rules of chapter 20); but the following entry was made opposite each of the two barons’ names “to be amerced at the Exchequer for a disseisin.” The Pipe Roll of John’s first year shows that this was subsequently done.[605]
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Footnote 603:
Cf. infra, under c. 39.
Footnote 604:
House of Lords, 255.
Footnote 605:
Cited by Pike, Ibid.
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Magna Carta, then, had good precedents for insisting that barons ought not to be amerced by the justices of eyre in the course of their circuits; but what exactly did it mean by demanding amercement "by their peers"? Did this merely mean that a few peers, a few Crown tenants, should be present at the exchequer when they were amerced; or was it a demand for the assembling, for that purpose, of a full commune concilium like that defined in chapter 14?
The Crown, in the following reign, placed its own interpretation on these words, and succeeded in turning into a special disadvantage what the barons had insisted on as a privilege. Bracton[606] repeats this chapter verbatim, but adds what seems to be an official gloss, qualifying it by these words: “et hoc per barones de scaccario vel coram ipso rege.” Barons, under this interpretation of Magna Carta, had their amercements assessed neither by the whole body of “their peers” in a full council, nor yet by a select jury of those peers empannelled in the exchequer for that purpose, but by royal officials, the barons of exchequer, or the justices of King’s Bench. Thus the words of the Charter were perverted by the ingenuity of the Crown lawyers to authorize precisely what they had been originally intended to forbid.[607]
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Footnote 606:
III., folio 116 b.
Footnote 607:
Pike, House of Lords, 256–7, shows how barons were assessed sometimes—(a) before the barons of exchequer; or (b) before the full King’s Council; or (c) at a later date, even before the justices of Common Pleas. They were never assessed, however, before the justices on circuit. Is it possible that one reason why the name Barones Scaccarii was retained as the official title of the four justices who presided over the Court of Exchequer was the Crown’s wish to preserve the fiction that these official “barones” were really peers of the holders of "baronies"?
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In the fourteenth century several cases are recorded, in the course of which defaulters, in the hope of escaping with smaller payments, protested against being reckoned as barons. For example, a certain Thomas de Furnivall in the nineteenth year of Edward II. complained that he had been amerced as a baron “to his great damage, and against the law and custom of the realm,” whereas he really held nothing by barony. The king directed the Treasurer and Barons of the Exchequer “that if it appeared to them that Thomas was not a baron, nor did hold his land by barony, then they should discharge him of the said imposed amercement; provided that Thomas should be amerced according to the tenor of the great Charter of Liberties,”[608] that is to say, as a simple freeholder according to the provisions of chapter 20. It is clear that Thomas de Furnivall was confident that a local jury would amerce him at a lower figure than that fixed by the exchequer barons. A few years earlier the Abbot of Croyland had made a similar plea, but without success.[609]
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Footnote 608:
Madox, I. 535-8.
Footnote 609:
See Madox, Ibid., and also Pike, House of Lords, 257.
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At a later date barons and earls were successful in securing by another expedient some measure of immunity from excessive exactions. They had established, prior to the first year of Henry VI., a recognized scale of amercements with which the Crown was expected, in ordinary circumstances, to content itself.[610] In the reign of Edward IV. a duke was normally amerced at £10, and an earl or a bishop at 100s.[611]
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Footnote 610:
See Pike, Ibid.
Footnote 611:
Madox, Baronia Anglica, 106, seems to view these sums as fixing a minimum, not a maximum. “If a baron was to be amerced for a small trespass, his amercement was wont to be 100s. at the least; he might be amerced at more, not at less. This, I think, was the meaning of the term amerciater ut baro.” He adds that a commoner for a similar trespass would get off with 10s., 20s., or 40s.
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CHAPTER TWENTY-TWO.
Nullus clericus amercietur de laico tenemento suo, nisi secundum modum aliorum predictorum, et non secundum quantitatem beneficii sui ecclesiastici.
A clerk shall not be amerced in respect of his lay holding except after the manner of the others aforesaid; further, he shall not be amerced in accordance with the extent of his church benefice.
Amercement of the clergy. The churchman was to receive the same favourable treatment as the layman in all respects, and to enjoy one additional privilege. In proportioning the amercement to the extent of his wealth, no account was to be taken of the value of his “church benefice.” A sharp distinction is here drawn between laicum tenementum (or, as the 10th of the Articles of the Barons expressed it, laicum feodum) and beneficium ecclesiasticum. This antithesis between “lay fee” and "alms"—that is, between lands held by barony, knight’s service, or any other secular tenure on the one hand, and lands held by frankalmoin on the other—was a familiar one in the Middle Ages.[612]
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Footnote 612:
See supra 66-70 and cf. Constitutions of Clarendon (c. 9), which distinguish tenementum pertinens ad eleemosinam from ad laicum feudum.
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Only the former was to be reckoned in fixing the defaulting clerk’s amercement. This would leave the bishop or abbot exposed to a higher payment proportionate to his barony, while exempting the parish priest from any assessment on account of his rectory and glebe. It would almost seem that in the normal case the incumbent with no wealth but the produce and rents of his benefice would thus escape from amercement altogether; yet, if he had no lay tenement, he might still have chattels, or might at least pay instalments from the annual increase of his crops. This exemption in favour of those who held lands in “alms” may have proceeded from several possible motives. Frankalmoin enjoyed many privileges, including, in the reign of Henry II., complete immunity from the jurisdiction of all secular courts.[613] Perhaps the Exchequer did not dare to levy contributions upon such lands. In any view, it would have been manifestly unjust to treat the clerical incumbent as though he were the owner in fee simple of the church’s patrimony.
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Footnote 613:
See Constitutions of Clarendon, Ibid. The Crown soon withdrew this immunity.
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The word “clerk” was a wide one, including not only the ordinary parish priests (whether rectors or vicars) with the deacons and those who had taken minor orders, but also the monks and canons regular (whose vows of poverty, however, left no loophole for the legal retention by them of private property which could require protection). It included also the higher clergy, great prelates, bishops and abbots, whose status was, however, complicated by their ownership of Crown lands. Their character of “baron” was often more prominent in constitutional questions than that of “clerk in holy orders.” Their treatment in the matter of amercements is a case in point.[614] There could have been no doubt from the first that a bishop “in mercy” must submit to have his barony taken into consideration in fixing his amercement. It would almost seem that the great prelates were not intended to benefit in any way from this exemption. Such is the suggestion conveyed by a slight alteration effected in the Charter of 1217, which substitutes for the wider “clericus” of the text the more restricted expression "ecclesiastica persona"—words which in the thirteenth century denoted the parish clergy, and were used much as is the word “parson” in colloquial speech at the present day.
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Footnote 614:
Cf. Pike, House of Lords, 254.
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A certain looseness in the arrangement of the Latin words of this chapter, as it originally stood in 1215, seems to have suggested the need for improvement. Alterations, apparently of a verbal nature, were made with some evidences of care in Henry’s reissues. The “de laico tenemento” of 1215 was omitted altogether in 1216; but a reference to the “lay fees” of the clergy was reintroduced in 1217, subject to a complete reconstruction of the sentence to make it read smoothly, and so avoid the possibility of misconception.[615]
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Footnote 615:
In its final form it reads: “Nulla ecclesiastica persona amercietur secundum quantitatem beneficii sui ecclesiastici, sed secundum tenementum suum et secundum quantitatem delicti.” Dr. Stubbs, Sel. Charters 345, by a curious oversight, reads for “tenementum” the compound “contenementum,” for which there seems to be no authority.
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CHAPTER TWENTY-THREE.
Nec villa nec homo distringatur facere pontes ad riparias, nisi qui ab antiquo et de jure facere debent.
No community or individual[616] shall be compelled to make bridges at river banks, except those who from of old were legally bound to do so.
The object of this chapter is obvious; to compel the king to desist from his practice of illegally increasing the extent of an obligation—admitted as perfectly legal within the limits defined by ancient usage—the obligation to keep in good repair all existing bridges over rivers. John might continue to exact what his ancestors had exacted; but nothing more. So much lies on the surface of the Charter, which explains, however, neither the origin of the obligation nor the reasons which made John keen to enforce it.
I. Origin of the Obligation to make Bridges. The Norman kings seem to have based their claim to compel their subjects to maintain such bridges as were necessary, upon an ancient threefold obligation,[616] (known as the trinoda necessitas) incumbent on all freemen during the Anglo-Saxon period. Three duties were[617] required of all the men of England in the interests of the commonweal: attendance on the fyrd or local militia; the making of roads, so necessary for military purposes; and the repairing of bridges and fortifications. Gradually, as feudal tendencies prevailed, the obligation to construct bridges ceased to be a personal burden upon all freemen, and became a territorial burden attached to certain manors or freeholders. In other words, it was made a part of the services incidental to the feudal tenure of particular estates. The present chapter, in forbidding the illegal extension of this burden to communities or individuals other than those who rendered it as part of the services due for their lands, seems to be only a particular application of the general principle enunciated in chapter 16. The evil complained of, however, required special treatment because of the prominence into which it had been forced by John, who had abused powers vested in his ancestors for national purposes, in order to further his own selfish pleasures, in a manner so well known to his contemporaries as not to require specification in Magna Carta.
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Footnote 616:
The word “villa,” used at first as synonymous with “manor,” came to be freely applied not only to all villages, but also to chartered towns. Even London was described as a villa in formal writs. “Homo,” though often loosely used, was the word naturally applied to a feudal tenant. The version given by Coke (Second Institute, p. 30) reads “liber homo,” which is also the reading of one MS. of the Inspeximus of 1297 (25 Edward I.). See Statutes of the Realm, I. 114.
Footnote 617:
See Rot. Claus., 19 Henry III., cited by Moore, History and Law of Fisheries, p. 8.
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II. The King’s interest in the Repair of Bridges. John’s motives for making an oppressive use of this prerogative must be sought in a somewhat unexpected quarter, in the king’s rights of falconry, and in his frequent need for ready means of crossing rivers in pursuit of his valuable birds of prey. Whenever John proposed to ride a-fowling, with his hawk upon his wrist, he issued letters compelling the whole country-side to bestir themselves in the repair of bridges in every district which his capricious pleasure might lead him to visit. Several such writs of the reign of Henry III. are still extant. The exact words of these vary somewhat, but a comparison of their terms leaves no room for doubt either as to the nature of the commands they conveyed or the reasons for issuing them. Addressed to the sheriffs of such counties as the king was likely to visit, at a convenient interval beforehand, these letters gave instructions that all necessary steps should be taken in preparation for the king’s hawking. The writs contained two commands, an order for the repair of bridges, and a prohibition against the taking of birds before the king had enjoyed his sport. Both points are well brought out in a Letter Close of Henry III., dated 26th December, 1234, which directed "all bridges on the rivers Avon, Test, and Itchen to be repaired as was wont in the time of King John, so that when the lord King may come to these parts, free transit shall lie open to him for “riviating” (ad riviandum) upon the said rivers." The writ then proceeded to command the sheriff to issue a general prohibition against any one attempting “to riviate” along the river banks, previous to the coming of the king (“ne aliquis riviare praesumat per riparias illas antequam rex illic venerit”).[618]
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Footnote 618:
See Rot. Claus. 19 Henry III., cited in Moore, History and Law of Fisheries, p. 8.
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The Latin verb, for which “to riviate” has been coined as an English equivalent, has long been the subject of misconception; but conclusive evidence has recently been adduced to prove that it referred to the medieval sport of fowling, that is to the taking of wild birds in sport by means of hawks and falcons.[619]
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Footnote 619:
See Moore, Ibid., 8–16. Two links in the chain of evidence are worthy of emphasis:—(a) Writs of 13th November and 1st December, 1234, order repair of bridges for the transit of the king “along with his birds” (cum avibus suis). (b) A writ of 28th October, 1283, gives aves capere as the equivalent of riviare. This writ contains a licence to the Earl of Hereford “during the present winter season to riviate and to take river-fowl of this nature (riviare et aves ripariarum hujusmodi capere) throughout the rivers Lowe and Frome which are in defence (in defenso).”
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These writs prove that the Crown claimed and exercised a monopoly of, or at least a preferential right to, this form of sport along the banks of certain rivers; and these “preserved” rivers were accordingly said to be placed “in defence” (in defenso), a phrase which occurs in many of the writs referred to, as well as in a later chapter of Magna Carta.[620]
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Footnote 620:
I.e. c. 47 (q.v.). Any district or object over which the king or a private individual had sole rights of any kind to the exclusion of the public might apparently be said to be placed in defenso in regard to the object of such rights. In this case, the word “riviation” makes the object plain.
Two distinct hardships were thus imposed on the nation by the king’s exercise of his rights of falconry, one negative and the other positive. In the interval between the king’s intimation and his arrival at the indicated rivers, the sport of all other people was interfered with, while the obligation to reconstruct otherwise useless bridges was a more material burden on every village and individual exposed to it. A wise king would be careful to use such rights so as to inflict on his subjects a minimum of hardship. John, however, knew no moderation, placing “in defence” not merely a few banks at a time, but many rivers indiscriminately, including those which had never been so treated in his father’s day, and demanding that all bridges everywhere should be repaired, with the object, not so much of indulging a genuine love of sport, as of inflicting heavy amercements on those who neglected prompt obedience to his commands. Great consternation was aroused by John’s action at Bristol in 1209 when he prohibited the taking of birds throughout the entire realm of England.[621]
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Footnote 621:
R. Wendover, II. 49 (R.S.), “Ibi capturam avium per totam Angliam interdixit.”
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Both of these grievances, thus augmented by the policy of King John, were redressed by Magna Carta, though in different clauses. In the present chapter John promised not to impose the burden of repairing bridges on those from whom it was not legally due.[622] Chapter 47, in which he agreed to withdraw his interdict from all rivers which he had placed “in defence” during his own reign, and also to disafforest all forests of his own creation, was entirely omitted in the Charter of 1216;[623] but in 1217 it reappeared in a new position and expressed in different words. The provision of the original chapter 47, relating to forests, was relegated to the Carta de Foresta, then granted for the first time, and the other part of that chapter, relating to falconry, was naturally enough joined to a clause which redressed another grievance growing from the same root. Chapter 19 of Henry III.’s Charter, in its final form, repeats word for word the terms of the present chapter of John, while in chapter 20 Henry proceeds to declare “that no river shall in future be placed in defence except such as were in defence in the time of King Henry, our grandfather, throughout the same places and during the same periods as they were wont in his day.”
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Footnote 622:
Article 11 of the Barons had demanded that no villa should be amerced for failure to make such illegal repairs, thus illustrating at once John’s policy, and the point of connection between this provision and the immediately preceding chapters which dealt with amercements.
Footnote 623:
It was, however, included among the subjects reserved for further consideration in “the respiting clause” (c. 42 of 1216) under the words “de ripariis et earum custodibus.” Cf. supra, 169.
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This express prohibition seems to have prevented the Crown from extending its prerogatives any further in this direction. Yet Henry III. had ample opportunities of harassing his subjects by an inconsiderate use of the rights still left to him. By issuing wholesale orders affecting every preserved river which he had an admitted right to put “in defence,” he might inflict widespread and wanton hardships. In many cases dubiety existed on the question of fact as to what banks had actually been “defended” by Henry II., and a vague general command which named no special rivers left in cruel uncertainty the district to be visited. Henry III., accordingly, either yielding to pressure or in return for grants of money, made important concessions. After the year 1241, he invariably specified the particular river along whose banks he intended to sport, and sometimes even announced the exact date at which he expected to arrive. As no writs appear subsequent to 1247, it is possible that he was induced to abstain altogether from the exercise of a right which inflicted hardships on the people out of all proportion to the benefits conferred on the king.[624]
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Footnote 624:
Moore, Ibid., 9.
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The Crown, however, had not renounced its prerogatives, and several writs still exist to show that Edward I. occasionally allowed his great nobles to share in the royal sport. Licences to this effect were granted in 1283 to the Earl of Hereford and to Reginald fitz Peter, and in the following year to the Earl of Lincoln. On 6th October, 1373, Edward III. by his writ commanded the sheriff of Oxfordshire to declare that all bridges should be repaired and all fords marked out with stakes for the crossing of the king “with his falcons” during the approaching winter season.[625]
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Footnote 625:
Moore, Ibid., 12.
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III. Erroneous Interpretations. There is nothing astonishing in the fact that a pastime so passionately followed as falconry was in the Middle Ages, should have left its traces on two chapters of Magna Carta, the full import of which has not hitherto been appreciated by commentators, partly from failure to bring both of them together, but chiefly because of the too precipitate assumption that the words ad riviandum and in defenso, occurring in writs and charters, referred to fishing rather than to fowling.[626]
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Footnote 626:
The Mirror of Justices is cited as first suggesting this. See Moore, Ibid., 12–16, where the gradual development of the error is traced. Coke, Second Institute, 30, was misled by the Mirror, and he has in turn misled others.
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It has been confidently inferred that the framers of Magna Carta when forbidding additional banks to be put “in defence,” equally as when demanding the removal of “weirs” from non-tidal waters,[627] were influenced by a desire to preserve public rights of fishing against encroachment by the king or by private owners. In either case the motives were entirely different. In the Middle Ages, fishing was a means of procuring food, not a form of sport: to depict John and his action-loving courtiers as exponents of the gentle art of Isaac Walton is a ridiculous anachronism.
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Footnote 627:
Cf. infra, under c. 33.
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It is quite true that the value of fish as an article of diet led in time to legislation directed primarily to their protection; but apparently no statute with such a motive was passed previous to 1285.[628] It is further true that in the reign of Edward I. it became usual to describe rivers, over which exclusive rights of fishing had been established by riparian owners, as being in defenso;[629] but rivers might be “preserved” for more purposes than one. From Edward’s reign onwards, however, rights of fishing steadily became more valuable, while falconry was superseded by other pastimes. Accordingly a new meaning was sought for provisions of Magna Carta whose original motive had been forgotten. So early as the year 1283 the words of a petition to the king in Parliament show that “fishing” had been substituted for “hawking” in interpreting the prohibition referred to in chapter 47 of John’s Charter. In that year the men of York complained that Earl Richard had interfered with their rights of fishing by placing in defenso the rivers Ouse and Yore, a proceeding they declared to be “against the tenor of Magna Carta.”[630] This error, the first appearance of which thus dates from 1283, has been accepted for upwards of five hundred years by all commentators on Magna Carta. The credit for dispelling it is due to Mr. Stuart A. Moore and Mr. H. S. Moore in their History and Law of Fisheries, published in 1903.
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Footnote 628:
This was 13 Edward I., stat. 1, c. 47, cited Moore, Ibid., 173.
Footnote 629:
Ibid., p. 6.
Footnote 630:
Ibid., p. 16.
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CHAPTER TWENTY-FOUR.
Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, teneant placita corone nostre.
No sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our Crown.
The main object of this provision is beyond doubt: men accused of crimes must be tried before the king’s judges and not by local magistrates of whatsoever kind. The innocent looked confidently for justice to the representatives of the central government; while they dreaded the jurisdiction of the less responsible officials resident in the county—local tyrants whose harshness had earned them a hearty and widespread hatred. The sheriffs and castellans thoroughly deserved their bad reputation; for the records of the age overflow with tales of their cruelties and illegal oppressions. It ought not to be forgotten, however, that if this chapter contains a condemnation of the local administration of justice, it testifies, at the same time, to the comparative purity of the justice dispensed by the king’s own judges. So far there is no difficulty; but some differences of opinion exist as to the exact bearing of this provision on certain points of detail.
I. Pleas of the Crown. All litigations tended to be distinguished into two kinds, royal pleas and common pleas, according as the interests of the Crown were or were not specially involved. This classification has already been discussed in connection with chapter 17, which sought to regulate the procedure in common pleas. The present chapter concerns itself only with “pleas of the Crown,” a phrase which had even in 1215 considerably altered its original meaning. In the eleventh century it had denoted all royal business, whether specially relating to legal procedure or not, embracing all matters connected with the king’s household or his estates, with the collection of his revenue, or the administration of his justice, civil as well as criminal. Gradually, however, the usage of the word altered in two respects, contracting in one direction, while expanding in another. It ceased to be applied to financial business and even to non-criminal, judicial business; and it was thereafter reserved for criminal trials held before the king’s judges. This process of contraction had been nearly completed before the accession of John.
Another tendency, however, in an opposite direction had been for some time in progress; the distinction drawn in early reigns between petty trespasses, which were left in the province of the sheriff, and grave offences, which alone were worthy of the king’s attention, was being slowly obliterated.[631] The royal courts steadily extended the sphere of their activity over all misdeeds, however trivial, until the whole realm of criminal law fell under the description of “pleas of the Crown.”
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Footnote 631:
Traces of it may be found as late as the reign of Henry II. See Glanvill, I. c. 1.
-----
In the reign of John this process of expansion was far from complete: the words then, indeed, embraced grave criminal offences tried in the king’s courts, but not the numerous petty offences, which were still disposed of in the sheriffs tourn or elsewhere.[632]
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Footnote 632:
The gradual triumph of royal justice over all rivals in the sphere of criminal law is thus symbolized by the extension of the phrase “pleas of the Crown,” which can be traced through a series of documents—e.g. (a) the laws of Cnut; (b) Glanvill, I. cc. I, 2, and 3; (c) the Assizes of Clarendon and Northampton; (d) the ordinance of 1194; and (e) the present chapter of Magna Carta.
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North of the Tweed the same phrase has had a completely different history: in modern Scots law its connotation is still a narrow one; and this is a direct result of the slow growth of the Scottish Crown in authority and jurisdiction, in notable contrast to the rapidity with which the English Crown attained the zenith of its power. The kings of Scotland failed to crush their powerful and unruly vassals, and consequently the pleas of the Scottish Crown, exclusively reserved for the High Court of Justiciary, formed a meagre list—the four heinous crimes of murder, robbery, rape, and arson. The feudal courts of the Scottish nobles long preserved their wide jurisdiction over all other offences. When the heritable jurisdictions were at last abolished, in 1748, mainly as a consequence of the rebellion of three years previously, the old distinction, so deeply rooted in Scots law, still remained. The sheriff court had no cognizance, until late in the nineteenth century, over the four crimes specially reserved for the king’s judges.[633] Thus in Scotland the historic phrase “pleas of the Crown” is, even at the present day, confined to murder, robbery, rape, and fire-raising, while to an English lawyer it embraces the entire realm of criminal law.
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Footnote 633:
The Criminal Procedure (Scotland) Act, 1887 (50 and 51 Victoria, c. 35) gave him jurisdiction over three of them.
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II. Keeping and Trying Criminal Pleas. The machinery for bringing criminals to justice, as organized by Henry II., was somewhat elaborate. For our present purpose, it may be sufficient to emphasize two important stages in the procedure. An interval had always to elapse between the commission of a grave crime and the formal trial of the criminal, since it was necessary to wait for the coming of the itinerant justices, which only took place at intervals of about seven years. Meanwhile, preliminary steps must be taken to collect and record evidence of offences, which might otherwise be lost. The magistrate responsible for these preliminary steps was said to “keep” the pleas (custodire placita)—that is, to watch them or prevent them from passing out of mind while waiting the coming of the justices who would formally “hold” or “try” or “determine” the same pleas (placitare or habere or tenere placita).
Before the reign of John, not only had the fundamental distinction between these two stages of procedure been clearly grasped, but the two functions had been entrusted to two distinct types of royal officials. The local magistrates of each district “kept” royal pleas, while only the justices who represented the central government could “hold” them. The process of differentiation was accelerated towards the close of the twelfth century in consequence of the jealousy with which the Crown regarded the increasing independence of the sheriffs. The elaborate instructions issued in 1194 to the justices whom Archbishop Hubert Walter was despatching on a more than usually important visitation of the counties contain two provisions intended to keep the growing pretensions of the sheriffs within due bounds.[634]
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Footnote 634:
See Forma procedendi in placitis coronae regis, cc. 20 and 21, cited in Sel. Charters, 260.
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They were expressly forbidden to act as justices within their own counties, or, indeed, in any counties in which they had acted as sheriffs at any time since Richard’s coronation.[635]
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Footnote 635:
Ibid., c. 21.
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It is safe to infer that the “trying” of royal pleas was the province from which in particular the sheriff was thus excluded. Even with regard to the “keeping” or preliminary stages of such pleas the sheriff was by no means left in sole command. The justices received instructions[636] to cause three knights and one clerk to be chosen in each county as “custodes placitorum coronae.” It is possible that these new local officers, specially entrusted with the duty of “keeping” royal pleas, were intended rather to co-operate with than to supersede the sheriffs in this function, but in any view the sheriffs had no longer a monopoly of authority in their bailiwicks. Magistrates, to be afterwards known as coroners, were thenceforward associated with them in the administration of the county.[637]
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Footnote 636:
Ibid., c. 20.
Footnote 637:
The Forma procedendi of 1194 is usually considered the earliest distinct reference to the office of coroner. Dr. Gross, however (History of Office of Coroner, 1892, and Select Cases from Coroners’ Rolls, 1896), claims to have found traces of their existence at a much earlier date. Prof. Maitland remains unconvinced (Eng. Hist. Rev., VIII. 758, and Pollock and Maitland, I. 519).
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The ordinance of 1194 seems to have settled subsequent practice in both respects. Sheriffs, while still free to punish petty offenders on their own authority, in their half-yearly tourns or circuits, allowed the coroners to “keep” royal pleas, and the justices to “try” them.
Public opinion of the day strongly approved both rules, yet John condoned and encouraged irregularities, allowing sheriffs to meddle with pleas of the Crown, even when the coroners were not present to check their arbitrary methods;[638] and allowing them to give a final judgment on such pleas, involving, mayhap, loss of life or limb to those found guilty, without waiting the arrival of the Justices.[639] Such deviations from the normal course of procedure could be no longer tolerated. Magna Carta accordingly, in this first of a series of chapters directed against the misdeeds of sheriffs and other local magistrates, forbade them to interfere in this province.
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Footnote 638:
This is the inference to be drawn from the 14th of the Articles of the Barons.
Footnote 639:
This is the inference to be drawn from c. 24 of Magna Carta.
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III. The Intention of Magna Carta. The barons, in this matter as in so many others, were merely demanding that the Crown should observe strictly and impartially the rules which it had laid down for its own guidance: caprice must give way to law. Sheriffs must not, with or without the king’s connivance, usurp the functions of coroners; nor must sheriffs and coroners together usurp those of the king’s justiciars. The opposition leaders naturally associated these two irregularities together, and may even have assumed that expressly to abolish the one implied, with sufficient clearness, an intention to abolish the other also. Such a supposition would explain a peculiar discrepancy between the Articles and the Charter, in its final form, which it is otherwise difficult to account for. While Article 14 demanded redress of one specific grievance, Magna Carta granted redress of an entirely different one. The earlier document, neglecting the distinction between “keeping” and “trying” pleas, simply requires that coroners (whose comparative popularity is explained by their appointment in the county court) should always be associated with the sheriff when he meddles in any way with pleas of the Crown. The Charter is silent on this subject; but forbids sheriffs and coroners, whether acting separately or together, to “try” or finally determine pleas of this description. These two provisions are the complements of each other. Magna Carta would thus seem to be here incomplete.
The prohibition against sheriffs trying pleas of the Crown was repeated in all reissues of the Charter; and, although not perhaps strictly enforced in Henry’s reign, soon became absolute. Under Edward I. it was interpreted to mean that no one could determine such pleas unless armed with a royal commission to that effect;[640] and the commission would take the form either of gaol delivery, of trailbaston, or of oyer and terminer.[641]
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Footnote 640:
See Coke, Second Institute, 30, and authorities there cited.
Footnote 641:
For explanation of these terms, see supra, c. 18.
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IV. An Erroneous View. Hallam seems to have misunderstood the object aimed at by this provision. Commenting on the corresponding chapter of Henry’s Charter of 1225, he declares that the “criminal jurisdiction of the Sheriff is entirely taken away by Magna Charta, c. 17.”[642] This is a complete mistake: both before and after the granting of the Charter, the sheriff exercised criminal jurisdiction, and that of two distinct kinds. Along with the coroners, he conducted preliminary enquiries even into pleas of the Crown; while in his tourn (which was specially authorized to be held twice a year by chapter 42 of the very Charter quoted by Hallam) he was completely responsible for every stage of procedure in regard to trivial offences. He heard indictments and then tried and punished petty offenders in a summary manner.[643] Several statutes of later reigns confirmed, even while regulating, the authority of the sheriff to take indictments at his tourns,[644] until this jurisdiction was transferred, by an act of the fifteenth century, to the justices of peace assembled in Quarter Sessions.[645]
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Footnote 642:
See Middle Ages, II. 482, n.
Footnote 643:
Cf. Stephen, History of Criminal Law, I. 83. The mistake made by Hallam and others may have been in part the result of their neglecting the important modification undergone by the phrase “pleas of the Crown” between 1215, when it was still confined to a few specific crimes of special gravity, and the present day, when it has become synonymous with the whole field of criminal law.
Footnote 644:
E.g. 13 Edward I. c. 13, and 1 Edward III., stat. 2, c. 17.
Footnote 645:
1 Edward IV. c. 2.
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All that Magna Carta did was to insist that no sheriff or local magistrate should encroach on the province reserved for the royal justices, namely the final “trying” of such grave crimes as had now come to be recognized as “pleas of the Crown.”[646] The Charter did not even attempt to define what these were, leaving the boundary between great and small offences to be settled by use and wont. In all this, it was simply declaratory of existing practice, making no attempt to draw the line in a new place.[647]
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Footnote 646:
Contrast Coke, Second Institute, 32, who seems to suggest that one effect of Magna Carta was to take from the sheriff a jurisdiction over thefts previously enjoyed by him.
Footnote 647:
Dr. Stubbs, Const. Hist., I. 650, thinks that the proposals of the Articles and Charter indicated a tendency towards judicial absolutism, only curbed by the growth of trial by jury. Yet the barons in providing against the sheriff’s irregularities had certainly no intention to enhance the royal power. The attitude of the insurgents in 1215 suggests rather that the sheriffs had now become instruments of royal absolutism to a greater extent than the king’s justices themselves. The problem of local government had thus assumed a new form (cf. supra, p. 20). Edward I., indeed, deftly turned this chapter to his own advantage, arguing that it cancelled all private jurisdiction over criminal pleas previously claimed by boroughs or individuals. See Coke, Second Institute, 31, and cases there cited.
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V. Local Magistrates under John. The urgent need of preventing the petty tyrants who controlled the administration of the various districts from exercising jurisdiction over the lives and limbs of freemen can be abundantly illustrated from the details furnished by contemporary records of the ingenious and cruel oppressions they constantly resorted to. Ineffectual attempts had indeed been made more than once to restrain their evil practices, as in August, 1213, when directions were issued from the Council of St. Alban’s commanding the sheriffs, foresters, and others, to abstain from unjust dealing,[648] and, again, some two months later, when John, at the instance of Nicholas of Tusculum, the papal legate, promised to restrain their violence and illegal exactions.[649] Little or nothing, however, was effected in the way of reform; and Magna Carta, in addition to condemning certain specified evils, contained two general provisions, namely, chapter 45, which indicated what type of men should be appointed as Crown officials, and the present chapter, which forbade local magistrates to encroach on the province of the king’s justices. These local magistrates are comprehensively described under four different names.[650]
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Footnote 648:
See supra, p. 34.
Footnote 649:
See W. Coventry, II. 214-5.
Footnote 650:
Abuses by sheriffs and other bailiffs continued to be rife after 1215 as before it. Many later statutes afford graphic illustrations of the oppressive conduct they sought to control. In 1275 Edward found it necessary to provide “that the sheriffs from henceforth shall not lodge with any person, with more than five or six horses; and that they shall not grieve religious men nor others, by often coming and lodging, neither at their houses nor at their manors.” See Statute of Westminster, c. 1, confirmed by 28 Edward I., stat. 3, c. 13.
(1) The sheriff. No royal officer was better or more justly hated than the sheriff. The chapter under discussion affords strong evidence alike of his importance and of the jealousy with which his power was viewed. The very briefest sketch of the origin and growth of the office is all that is here possible. Long before the Conquest, in each shire of England, the interests, financial and otherwise, of the kings of the royal house of Wessex had been entrusted to an agent or man of business of their own appointing, known as a scir-gerefa (or shire-reeve). These officers were continued by the Norman monarchs with increased powers under the new name of vice comites.[651] It is an illustration of the tenacity of the Anglo-Saxon customs and names that this Latin title never took root, whereas the old title of sheriff continues to the present day.
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Footnote 651:
Cf. supra, pp. 17-20.
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It is true that in England during the Anglo-Saxon period the chief power over each shire or group of shires had been shared among three officers—the bishop, the earl, and the sheriff. The bishop, by the natural differentiation of functions, soon confined his labours to the spiritual affairs of his diocese; while the deliberate policy of the Conqueror and his successors relegated the earl to a position of dignity altogether severed from the possession of real power. Thus the sheriff was left without a rival within his shire. For a period of at least one hundred years after the Norman Conquest he wielded an excessive local authority as the sole tyrant of the county. He was not indeed irresponsible, but it was difficult for his victims to obtain the ear of the distant king, who alone was strong enough to punish him. The zenith of the sheriff’s power, however, was passed in the twelfth century, and before its close changes had been introduced with the view of checking his abuses. Henry II. frequently punished his sheriffs for their misdeeds, and removed them from office.
It has already been explained how in 1194 the sheriff’s powers were further restricted, while new officers were appointed in each county to share the authority still left to him. To the very next year (1195) is usually traced the origin of the justices of the peace, who gradually took over the chief duties of the sheriff until they had practically superseded him as the ruling power in the county. In Tudor days a new rival appeared in the Lord Lieutenant, then first appointed in each shire to represent the Crown in its military capacity, and particularly to take over command of the militia of the county. The fall of the sheriff from his former high estate was thus gradual, although finally most complete. From presiding, as he did in his golden age, over all the business of the district—financial, administrative, military, and judicial—the sheriff has become, in England at the present day, a mere honorary figure-head of the county executive. A high sheriff is still chosen annually by King Edward for each county by picking at random one name out of a list of three leading land-owners presented to him for that purpose by the judges. The gentleman on whom this sometimes unwelcome dignity is thrust is still nominally responsible during his year of office for the execution of all writs of the superior Courts within his county, for returning the names of those elected to serve in the House of Commons, and for many other purposes; but his responsibility is chiefly theoretical. All the real duties of his office are now performed in practice by subordinates. What really remains to him is an empty and expensive honour, usually shunned rather than courted. In Scotland and America the sheriff also exists at the present day, but his position and functions have in these countries developed in very different directions. In Scotland, in opposition to what has happened in England and America, the sheriff has remained emphatically a judicial officer, the judge of an inferior court, namely, the local court of his shire, known as “the Sheriff Court.” He has thus retained intact his judicial functions, to which such nominal administrative duties as still remain to him are entirely subordinate. In the United States of America, on the contrary, the sheriff is a purely executive official, possessing perhaps more real power, but notably less honour and social distinction than fall to the lot of the English high sheriff. The duties of his office are sometimes performed by him in person; he may even set out at the head of the posse comitatus in pursuit of criminals. Three completely different offices have thus sprung from the same constitutional root, and all three are still known by one name in England, Scotland, and America respectively.
(2) The constable. Portions of certain counties were exempted, partially or entirely, from the sheriff’s bailiwick, and placed under the authority of specially appointed magistrates. Thus districts afforested were administered by forest wardens assisted by verderers who excluded the sheriffs and coroners; while royal fortresses, together with the land immediately surrounding them, were under the sole command of officers known indifferently as castellans or constables.[652] The offices of warden of a particular forest and warden of an adjacent royal castle were frequently conferred on the same individual. Indeed, chapter 16 of the Forest Charter of Henry III. seems to use the term “castellans” as the recognized name of forest wardens, whom it forbids to hold “pleas of the forest,” although they may attach or “keep” them (with the co-operation of the verderers), and present them for trial before the king’s emissaries when next sent to hold a forest eyre—thus offering a complete parallel between procedure at “forest pleas” and that prescribed by the present chapter for ordinary pleas of the Crown.[653]
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Footnote 652:
These localities were completely independent of the ordinary executive authorities of the county; in addition, partial exemption from the sheriff’s control was enjoyed by (a) chartered boroughs and (b) holders of franchises.
Footnote 653:
Cf. infra, c. 48.
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The name constable is an ambiguous one, since it has at different periods of history been applied to officers of extremely different types. The king’s High Constable, a descendant of the horse-thegn of the Anglo-Saxon kings, was originally that member of the royal household who was specially responsible for the king’s stables. At a later date, he shared with the Earl Marshal the duties of Commander-in-chief of the king’s armies. The name of constable was also used in a wider sense to designate other and subordinate royal ministers. It came to be applied to commanders of small bodies of troops, whether in castles or elsewhere. At a later date the word lost its warlike associations, and was used in connection with the duties of watch and ward. A constable was a person specially entrusted with enforcing order in his own locality. Thus each hundred had its high constable and each village its petty constable in the fourteenth and fifteenth centuries.[654] These various officials were thus, at different dates, all designated by a name usually, at the present day, confined to ordinary members of the police force.
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Footnote 654:
See H. B. Simpson in English Historical Review, X. 625, and authorities there cited.
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The word as used in Magna Carta had not yet lost its military character, but denoted the castellan who commanded the troops which garrisoned a royal castle.[655] Such an office was one of great trust; and correspondingly wide powers were conferred upon its holder. The warden of a castle held an important military command, and acted as gaoler of the prisoners confided to the safe-keeping of his dungeons. He had authority, under certain ill-defined restrictions, to take whatever he thought necessary for provisioning the garrison—a privilege, the exercise of which frequently led to abuses, guarded against by chapters 28 and 29 of Magna Carta, where they are discussed under the head of purveyance. He had also, to a limited extent, judicial authority. Not only did he try pleas for small debts to which Jews were parties, but he enjoyed a jurisdiction over all petty offences committed within the precincts of the castle, analogous to that of the sheriff within the rest of the county. This power of trying and punishing misdemeanours was not taken away by the Great Charter, and was confirmed by implication in 1300 by a statute which directed that the constable of Dover Castle should not hold within the castle gate “foreign” pleas of the county which did not affect “the guard of the castle.”[656] It is not known at what date the judicial powers of constables fell into disuse; but they still acted as gaolers at a much later period. In the reign of Henry IV. complaint was made that constables of castles were appointed justices of the peace, and imprisoned in one capacity the victims whom they had unjustly condemned in another. This practice was put down by statute in 1403.[657]
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Footnote 655:
The evidence collected by Coke, Second Institute, 31, conclusively proves the identity of these two offices. See also Round, Ancient Charters No. 55, where Richard I. in 1159 speaks of “constabularia castelli Lincolniae.”
Footnote 656:
See Articuli super cartas, 28 Edward I. c. 7.
Footnote 657:
See 5 Henry IV. c. 10. Coke, Second Institute, 30, relates, as an indication of the authority and pretensions of these constables, that they had seals of their own “with their portraiture on horseback.”
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It would seem that at an earlier period the constable sometimes acted as a deputy-sheriff. Chapter 12 of the Assize of Northampton provided that when the sheriff was absent the nearest castellanus might take his place in dealing with a thief who had been arrested. His interference outside his own precincts must, however, have been regarded with great jealousy, and the coroners, after their appointment in 1194, would naturally act as substitutes during the sheriff’s absence.
(3) The coroners. The coroners of each county, after their institution in 1194, seem to have shared with the sheriff most of the powers of which the latter had previously enjoyed a monopoly. The nature of their duties is explained by the oath of office sworn in the same words for many centuries, “ad custodienda ea quae pertinent ad coronam.” Their duty was to guard royal interests generally; and their “keeping” of royal pleas was merely one aspect of this wider function. Besides “attaching” those suspected of crimes—that is, receiving formal accusations and taking such sureties as might be necessary, it was their duty to make all such preliminary investigations as might throw light on the case when the formal trial was afterwards held; they had, for example, to examine the size and nature of the victim’s wounds in a charge of mayhem.[658] They were required, in particular, to keep a watchful eye on all royal property, being responsible for the safe-keeping of deodands, wrecks, and treasure trove. They had also to appraise the value of all chattels of criminals forfeited to the king. When felons took refuge in sanctuary, it was the coroner who arranged for their leaving the country on forfeiting all that they had. They also kept a record of those who had been outlawed, and received “appeals” or private accusations of criminal charges.[659]
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Footnote 658:
See Bracton, f. 122 b.
Footnote 659:
In 1197, Richard’s Assize of Measures appointed six custodientes in each county and town. These were coroners over a limited class of offences, viz., the use of false weights and measures. Cf. infra, under c. 35.
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Magna Carta forbade the coroner to determine the pleas of the Crown; but, even after 1215, he sometimes did justice upon felons caught red-handed, whose guilt was self-evident without trial. An act of Edward I.[660] accurately defined his duties, empowering him to attach pleas of the Crown and to present criminals to the justices for trial, but forbidding him to proceed further alone.
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Footnote 660:
Statute of Westminster, I. c. 10.
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The coroner’s functions, originally so wide and varied, have been gradually narrowed down, until now there is practically only one duty commonly associated with his office, namely, the holding of an inquest on a dead body where there are suspicious circumstances.[661] In addition to this, however, he is still responsible for treasure-trove or valuables found buried in the ground, and he is also competent to act generally as the substitute of the sheriff in case of the latter’s illness or absence during his year of office.
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Footnote 661:
Cf. Coke, Second Institute, 31, “In case when any man come to violent or untimely death, super visum corporis.”
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(4) The bailiffs. The mention by name of three classes of local officers is supplemented by the addition of an indefinite word sufficiently wide to cover all grades of Crown officials. The term “bailiff” may be correctly applied to every individual to whom authority of any sort has been delegated by another. It would, in the present instance, include the assistants of sheriffs and constables, the men who actually served writs, or distrained the goods of debtors; and also generally all local officials of every description holding authority directly or indirectly from the Crown. The district over which his office extended was called his “bailiwick,” a term often applied to the county considered as the sphere of the sheriff’s labours.
CHAPTER TWENTY-FIVE.
Omnes comitatus, hundrede, wapentakii, et trethingic, sint ad antiquas firmas absque ullo incremento, exceptis dominicis maneriis nostris.
All counties, hundreds, wapentakes, and trithings (except our demesne manors) shall remain at the old rents, and without any additional payment.
This provision also was directed against the sheriffs, and shows a praiseworthy determination to get to the root of the disease, instead of merely attacking the symptoms. The rents at which the counties (or parts of them) were farmed out to the sheriffs must no longer be arbitrarily raised, but were to remain at the old figures which had become stereotyped from long usage. To understand how such increases would injuriously affect the inhabitants of the county, some explanation is necessary. Centuries before the Norman Conquest, the long process had been already completed by which England had been gradually mapped out into shires on lines substantially the same as those which still exist. Each county had been further subdivided into smaller districts known as “hundreds” in the south, and as “wapentakes” in the Danish districts of the north; while intermediate divisions existed, exceptionally, in some of the specially large counties such as York and Lincoln, each of which had three “trithings” or ridings.
In commenting upon chapter 24, it has been already explained how the Anglo-Saxon kings entrusted their interests in each shire to an officer called a sheriff, and how a similar officer under the Norman kings became practically the chief magistrate and local judge in the county. His financial duties, however, long remained the most important: William I. and his successors had greater pecuniary interests in the English counties than their Anglo-Saxon forerunners ever had, and the sheriffs were their agents in collecting all rents and other dues. Even before the Conquest, however, the sheriff of an ordinary county had ceased to be a mere intermediary, who lifted the king’s rents and paid over, pound by pound, the yearly varying sums he might receive. He had become a firmarius: he bought for a yearly rent the right to collect and appropriate to his own uses the various revenues of the county. The Crown got only the exact sum stipulated for, known as the firma comitatus; while the balance, if any, remained with the sheriff. That officer was liable, on the other hand, for the sum agreed on, even when the annual yield fell short of his anticipations. In plain words, the sheriff speculated in the returns, and it was his business, by fair means or foul, to make sure of a handsome surplus.
Authorities differ as to the exact list of items purchased by the slump sum known as firma comitatus; but undoubtedly the two chief sources of revenue embraced were the profits of justice dispensed in the local courts, and the rents and returns from the various royal manors in the county.
William I. sharply raised the amounts of all these farms for his own benefit, and his successors endeavoured, whenever possible, to increase them still further. Now it might seem at first sight that these additional burdens concerned exclusively the Crown and the sheriff, but such was by no means the case. The sheriff took care to pass on the burden primarily falling upon him to the shoulders of those who were subject to his authority. When the king exacted more from the sheriff, the latter in turn increased the pressure on the inhabitants of his county or group of counties. His rule tended always to be oppressive, but his unjust fines and exactions would be doubled at times when the amount of the firma had recently been raised.
Under the vigilant rule of Henry II. some measure of relief was obtained by the shires from the misdeeds of their local tyrants, since that far-seeing king knew that his own best interests called for a curtailment of the pretensions of the sheriffs. He punished their excesses, and frequently deprived them of office. Under John the sheriffs had a comparatively free hand to oppress their victims, for he entered into a tacit alliance with them, in order that the two tyrants (the heads of the central and the local government respectively) might together fleece the men of the county more effectually. In addition to the fixed annual rents in name of firma which had again become stereotyped, John extorted an additional lump payment called either an incrementum or by various other names, and allowed the sheriffs to inflict new severities in order to recoup themselves for their additional outlay.[662]
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Footnote 662:
Cf. Miss Norgate (John Lackland, p. 214) who explains that the Crown claimed a share of the sheriffs’ ever-increasing surplus, and "this was done, not by putting the ferm at a higher figure, but by charging the sheriff with an additional lump sum under the title of crementum, or, in John’s time, proficuum.“ But this practice was by no means an innovation invented by John. Henry II. often exacted such extra payments under the name of ”gersuma." Thus in Pipe Roll Henry II. (p. 11) the Sheriff of Norfolk and Suffolk paid 200 marks under that name. The method adopted was practically to set up the office of sheriff to auction. The highest suitable bidder obtained the post, and the amount of the successful bid was entered at the exchequer as a gersuma.
Magna Carta made no attempt to abolish the practice of farming out the shires, but forbade alike the increase of the farm and the exaction of an incrementum.
If this reform benefited the men of the counties in their dealings with the sheriffs, it also gave the sheriffs an unfair advantage over the exchequer. The total value of the various assets included in the firma comitatus had greatly increased in the past, and would probably continue to increase in the future. Therefore, it was absurd to bind the Crown by a hard-and-fast rule which would practically make a present of this future “unearned increment” to the sheriff. It belonged of right to the Crown; and the exchequer had increasing need of supplies to meet the increasing duties of the central government. To stereotype the firma to be paid in return for a constantly increasing revenue was unfair to the Crown.[663] It is thus easy to understand why this chapter was entirely omitted in 1216 and in subsequent reissues. The Articuli super cartas, on the other hand, while conceding to the counties the right of electing their own sheriffs, reaffirmed the principle of John’s Charter, declaring that neither the bailiwicks and hundreds of the king, nor those of great lords ought to be put to farm at too high rates. The evil, however, continued under a new form; sheriffs, while only paying a moderate farm themselves, sublet parts of their province at much higher rates, thus appropriating the increment denied to the exchequer, while the bailiffs who had paid the increase could not “levy the said ferm without doing extortion and duress to the people.”[664] Three successive acts prohibited this practice, declaring that hundreds and wapentakes must either be kept in the sheriff’s own hands, or sublet, if at all, at the old fixed farms only.[665]
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Footnote 663:
Cf. Sir James Ramsay, Angevin Empire, 476, who describes this provision as “an impossible requirement.” Dr. Stubbs’ paraphrase is not entirely happy: “the ferms of the counties and other jurisdictions are not to be increased.” See Const. Hist. I. 575.
Footnote 664:
These are the words of the Statute of 1330, cited below.
Footnote 665:
See 4 Edward III. c. 15; 14 Edward III. c. 9; and 4 Henry IV. c. 5.
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One exception to the scope of its own provisions was deliberately made by Magna Carta—an exception of an important and notable nature; the demesne manors of the Crown were deliberately left exposed to arbitrary increases of their annual rents. The towns in this respect were practically in the same position as the demesne manors. It is true that many of them had received separate charters fixing the amounts annually payable under the name of farm (firma burgi in their case), and that all such charters received a general confirmation in chapter 13 of the Great Charter, but the Crown could probably evade these promises by applying the name of “increment” to any additional payments desired, or, if that were objected to, might still resort to an arbitrary “tallage,” the right to extort which had not been taken away by Magna Carta. The money was as good to the Crown under one name as under another.[666]
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Footnote 666:
Cf. supra, pp. 278-80.
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CHAPTER TWENTY-SIX.
Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel ballivus noster ostendat litteras nostras patentes de summonicione nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare et inbreviare catalla defuncti, inventa in laico feodo, ad valenciam illius debiti, per visum legalium hominum, ita tamen quod nichil inde amoveatur, donec persolvatur nobis debitum quod clarum fuerit; et residuum relinquatur executoribus ad faciendum testamentum defuncti; et, si nichil nobis debeatur ab ipso, omnia catalla cedant defuncto, salvis uxori ipsius et pueris racionabilibus partibus suis.
If any one holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed to us, it shall be lawful for our sheriff or bailiff to attach and catalogue chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of lawful men, provided always that nothing whatever be thence removed until the debt which is evident[667] shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares.
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Footnote 667:
Cf. the use of the phrase “a liquid debt” in Scots law.
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The primary object of this chapter was to regulate the procedure to be followed in attaching the personal estates of Crown tenants who were also Crown debtors. Incidentally, however, it throws light on the general question of the right of bequeathing property.
I. The Nature of the Grievance. When a Crown tenant died it was almost certain that arrears of one or other of the numerous scutages, incidents, or other payments due to the Crown remained unpaid. The sheriff and the bailiffs of the district where the deceased’s estates lay were in the habit of seizing everything they could find on his manor under the excuse of securing the interests of their royal master. They attached and sold chattels out of all proportion to the sum actually due; and after satisfying the Crown debt, a large surplus would often remain in the sheriff’s hands which it would be exceedingly difficult for the relatives of the deceased freeholder to force him to disgorge.
Magna Carta here sought to make such irregularities impossible for the future by carefully defining the exact procedure to be followed in such circumstances. The sheriff and his bailiffs were forbidden to touch a single chattel of a deceased Crown tenant, unless they came armed with a legal warrant in the form of royal letters patent vouching the existence and the amount of the Crown debt. Even after exhibiting a warrant in proper form, the officers were only allowed to attach as many chattels as could reasonably be considered necessary to satisfy the full value of the debt due to the exchequer; and everything so taken must be carefully inventoried. All this was to be done “at the sight of lawful men,” respectable, if humble, neighbours specially summoned for that purpose, whose function it was to form a check on the actions of the sheriff’s officers generally, to prevent them from appropriating anything not included in the inventory, to assist in valuing each article and to see that no more chattels were distrained than necessary. A saving clause protected the interests of the Crown by forbidding the removal from the tenant’s fief of any of the chattels, even those not so attached, until the full ascertained amount had actually been paid to the exchequer. The Crown’s preferential claims remained over everything on the manor until the debt was extinguished. Only after that had been done, could a division of the estate take place among the deceased man’s relatives or those in whose favour he had executed a Will.
These provisions should be read in connection with the terms of chapter 9,[668] which provided that diligence for Crown debts must proceed against personal estate before the debtor’s freehold was distrained, and laid down other equitable rules applicable alike to the case of a deceased Crown debtor and to that of a living one.
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Footnote 668:
Cf. what is there said of the sheriff’s oppressions and the attempts made to put an end to them.
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II. The Right to Bequeath. The main interest of this chapter lies, however, for the historian of law and institutions, in quite a different direction; to him it is valuable for the light incidentally thrown on the limits within which the right of making Wills was recognized in 1215. The early law of England seems to have had great difficulty in deciding how far it ought to acknowledge the claims made by owners of property, both real and personal, to direct its destination after death. Various influences were at work, prior to the Norman Conquest, to make the development of this branch of law illogical and capricious.[669] Of the law of bequests in the twelfth century, however, it is possible to speak with greater certainty; definite principles had by that time received general recognition. All testamentary rights over land or other real estate (so far as these had ever actually existed) were now abolished, not, as has sometimes been maintained, in the interest of the feudal lord, but rather in the interests of the expectant heir.[670] Thus the right to devise land had been absolutely prohibited before the end of the twelfth century. Many reasons contributed to this result. For one thing, it had become necessary to prevent churchmen from using their influence to wring bequests of land from dying men, to the impoverishment of the rightful heir, and to the destruction of the due balance between Church and State, already menaced by the rapidly accumulating wealth of the various religious orders.
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Footnote 669:
The subject is exhaustively discussed by Pollock and Maitland, II. 312-353.
Footnote 670:
See Pollock and Maitland, II. 324.
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Churchmen, in compensation as it were for the obstacles thus opposed to their thirst for the land of the dying, made good their claim to regulate all Wills dealing with personal estate; that is money, goods, and chattels. They claimed and obtained for their own courts the right to exclusive jurisdiction over all testamentary provisions, now, of course, competent in respect of personal estate only. The Courts Christian “proved” Wills, (that is, usurped the right to determine whether they were really valid acts of the departed or not) and also superintended their administration. In particular, they had control over the “executors” who were originally the friends to whom the deceased had made known his wishes as to the distribution of his money and chattels on his death. The Church Courts ensured that the executors loyally carried out these intentions, and prevented them from appropriating to their own uses what had been entrusted to them for the good of the deceased’s soul. In John’s reign, however, the Crown and its officers interfered alike with the rights of testators to make Wills and the rights of the bishop of the diocese to supervise the distribution. Not only did the sheriffs find pretexts to help themselves; but John seems to have maintained that Wills were not valid without his consent, which had, as usual, to be paid for. Such, at least, is the inference to be drawn from the existence of writs granting licences to make a Will, or confirming one that had been made.[671] The king’s interference in this province seems, however, to have been regarded as an entirely illegal encroachment.
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Footnote 671:
On 30th August, 1199 (New Rymer, I. 78) John confirmed the testament of Archbishop Hubert Walter; and on 22nd July, 1202, (Ibid., I. 86) he granted permission to his mother, the dowager Queen Eleanor, to make a Will.
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In strict law, rights of testation, though prohibited quoad land, were recognized quoad personal estate. It must not, however, be supposed that the testator was at liberty to divide or “devise” all his money and chattels. The reasonable claims of wife and children must first be respected, and only the free balance, after satisfying these, could be distributed. It was long before any exact rule was established for determining the amount of these “reasonable” claims. Much could be said for an elastic rule which allowed the proportion of personal estate falling to wife and children to vary with the circumstances of each case; but this vagueness had one grave objection; it inevitably led to friction and family quarrels. Magna Carta in this respect simply confirmed existing practice, and made no attempt at definition. During the thirteenth century, however, the lawful shares of wife and children were definitely fixed by the English common law, and that, too, at exactly the same proportions of the entire personal estate as are recognized to the present day by the law of Scotland. Where a Scots testator dies leaving wife and children, his moveable or personal estate is regarded as falling naturally into three equal parts, known as the widow’s part, the bairn’s part, and the dead’s part, respectively. It is only with the last mentioned third of his own moveables that he can do as he likes. If he disposes of the rest, wife and children may claim their legal rights and “break the Will.” Where a wife survives but no children, or vice versa, the division is into two equal portions. Magna Carta recognises a similar threefold or twofold decision, and contains a clear acknowledgment of what Scots law to the present day quaintly describes as "the dead’s part." It was only the residue of the deceased’s chattels after claims of wife and children had been satisfied, which was “to fall to the deceased,” and which is also spoken of as the portion of personal estate left to the executors “to fulfil the testament of the deceased.” This portion was appropriated “to the use of the dead”: that is, his executors, under the guidance of the Church Courts, would use it for the salvation of his soul. The deceased might either have given specific directions, or have left full powers to his executors (frequently churchmen) to make the division for charitable and religious purposes according to their own discretion. Part might go to needy relations, or to the poor of the district; part to endow religious houses; and part in masses for his eternal welfare.
Long subsequent to the thirteenth century, the laws of England and Scotland as to the rights of succession of wife and children seem to have remained identical: but, while Scots law is the same to the present day, recognizing still the widow’s jus relictae and the children’s legitim, the English law has, by slow steps, the details of which are obscure, entirely changed. The rule which acknowledged the children’s right to one third of the personal estate was gradually relaxed, while the testator became sole judge what provision he ought to make for his sons, until at last a purely nominal sum of money was all that was required. Finally the power to bequeath personal estate has (in sympathy with exaggerated modern conceptions of the sacredness of rights of “property”) expanded to such an extent that a father may leave his children entirely penniless; and the law will not interfere. The law of England, at the present day, does not compel him to leave his son or daughter even the proverbial shilling. The phrase “to cut off a son with a shilling,” which still lives in popular usage, may possibly perpetuate a now forgotten tradition of an intermediate stage of English law, where some provision, however inadequate, had to be made, if the Will was to be allowed to stand.[672]
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Footnote 672:
The reissue of 1216 makes no alteration here, but that of 1217 omits “et pueris,” thus protecting the wife’s “reasonable portion” but not that of the sons. The words omitted were restored in 1225. It was probably a mere clerical error.
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CHAPTER TWENTY-SEVEN.
Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum parentum et amicorum suorum, per visum ecclesie distribuantur, salvis unicuique debitis que defunctus ei debebat.
If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under the supervision of the church, saving to every one the debts which the deceased owed to him.
Here the Great Charter proceeds to remedy an evil connected with intestate succession, a natural sequel to the subject of testate succession. John was made to promise that he would not seize, as forfeit to his exchequer, the chattels of men who had neglected to make a will. In the Middle Ages all classes of men, good and bad alike, exhibited an extreme horror of dying intestate.[673] Several causes contributed towards this frame of mind. Churchmen, from motives not unmixed, diligently inculcated the belief that a dying man’s duty was to leave part at least of his personal estate (the only property over which the law allowed him powers of disposal) for religious and charitable objects. The bishop or priest, who had power to give or withhold extreme unction to the sinner who had confessed his sins, was in a peculiarly strong position to enforce his advice upon men who believed the Church to hold the keys of heaven. Thus, every man on his death-bed had powerful motives for making his will in such form as the Church approved. Motives of a more worldly kind urged him in the same direction. If he died intestate, a scramble for his personal effects would undoubtedly result. Many powerful claimants were ready to compete. In Glanvill’s day, for example,[674] every feudal lord claimed the goods of his intestate vassals. Such demands were difficult to defeat, although Bracton, at a later date[675] declared them to be illegal, at least in cases of sudden death. Then, the kinsmen—rich and poor relations—had certain rights never very clearly defined. The Church, too, stood ready, with claims judiciously vague, which might be expanded as occasion required. It arrogated, at the very lowest, the right to distribute the dead man’s chattels for the good of his soul, and there are instances when a strong-minded bishop or abbot insisted on such a distribution, although the deceased had died unrepentant, leaving no will.[676]
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Footnote 673:
Pollock and Maitland, II. 354.
Footnote 674:
VII c. 16.
Footnote 675:
F. 60 b.
Footnote 676:
This course was taken in 1197 by Abbot Samson, whose deeds are portrayed for us by Jocelyn of Brakelond to the delight of Thomas Carlyle. See Past and Present, passim. Cf. also Pollock and Maitland, II. 355.
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Prelates allowed themselves liberal discretion in regard to "the dead’s part" over which they thus assumed control. Something might go to the poor, but much would naturally be spent on masses for the departed soul, while a portion might openly be retained as a recompense for trouble expended in this pious cause. The king was another competitor for the goods of those who left no will; and attempts were made at various times to treat intestacy, more especially in the case of clerks, as a cause of forfeiture.[677] For our present purpose it is unnecessary to discuss whether this claim was founded on the royal prerogative or on the rights of the king in his capacity either as overlord or as patron of vacant sees.[678]
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Footnote 677:
See Pollock and Maitland, II. 354. Examples are readily found: “When Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of £11,000, to say nothing of the spoons and saltcellars.” Pollock and Maitland, I. 504.
Footnote 678:
Royal prerogatives in the twelfth century were still elastic and undefined. Henry II. used them freely, but on the whole fairly. His sons stretched every doubtful claim to its utmost limits. The Crown was the legal heir of all Jews (cf. c. 10) and apparently of all Christian usurers as well, at least of such as died unrepentant. (See Pollock and Maitland, II. 486, and authorities there cited.) It is interesting in this connection to note that the making of a will was looked on as a necessary condition of a usurer’s repentance. (See Dialogus de Scaccario, 224–5, nn.) The king, further, took the goods of all who died a felon’s death (cf. c. 32) and of men who committed suicide (itself a felony). John, so we may infer from Magna Carta, went further, and appropriated the chattels of all intestates. Were there any precedents from his father’s reign for this wider claim? Madox (I. 346) cites an entry from the Pipe Polls of 1172, recording 60 marks due the exchequer as the value of the chattels of an intestate; and, two years later, mention is made de pecunia Gilleberti qui obiit intestatus. There is nothing to show whether such men were, or were not, usurers. The Pope was another competitor for the personal estates of intestate clerks. In 1246, he issued an edict making this demand. Even Henry III. (dependent and ally of Rome as he was) protested, and the edict was withdrawn. (See Pollock and Maitland, II. 357.)
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This chapter of Magna Carta was directed against all such pretensions of the Crown or its officials. Whoever else might get these windfalls, King John must not compete. So much is clear; some sort of compromise was, further, made between the two most likely claimants. Magna Carta provided for a friendly co-operation between the deceased’s kinsmen and the Church in distributing the residue of the intestate’s personal estate, after satisfying all preferential claims of creditors, wives, and children. This chapter, although afterwards struck out of all reissues of the Charter, seems to have been observed in practice.[679] Apparently, however, the right of the kinsfolk to share the control with the Church gradually receded into the background, while the Courts Christian assumed complete authority in all cases of intestacy; so much so, that churchmen had frequently to be reminded that they were only the dead man’s administrators, and not entitled to appropriate the goods to their own uses.
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Footnote 679:
Cf. Pollock and Maitland, II. 355. “This clause, though it was deliberately withdrawn, seems to have settled the law.”
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It is easy to understand the motives which, in 1216, led those responsible for the government of the young Henry III. to withdraw this provision of Magna Carta. The Crown had then need of all the money it could get, and so long as the uncertainty of the law allowed a scramble to take place for the goods of intestates, the king could not be asked to stand aside with his hands tied by a clause of Magna Carta. He would take his chance with the other claimants. It was the Church, however, and not the Crown, which finally secured the prize.[680]
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Footnote 680:
This chapter should be compared with a corresponding provision in the Charter of Liberties granted by Henry I. William Rufus, like John, had evidently helped himself freely to the chattels of intestates. Henry I. (c. 7) made what seems to be merely a partial renunciation of this right: where the deceased had been prevented “by arms or infirmity” from making his will, his relations and vassals might distribute his goods for him. Are we to infer that Henry reserved the right to seize them in all other events? Stephen, in his second or Oxford Charter (cf. supra, p. 121 and appendix), clearly and unambiguously resigned all such rights, as far as the property of churchmen was concerned. Si vero morte preoccupatus fuerit, pro salute anime ejus ecclesie consilio eadem fiat distributio. He also confirmed full rights of making wills to churchmen. We have already seen that his successors did not observe these provisions. (See supra, pp. 383-4, and also Pollock and Maitland, 1. 503.)
CHAPTER TWENTY-EIGHT.
Nullus constabularius, vel alius ballivus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios, aut respectum inde habere possit de voluntate venditoris.
No constable or other bailiff of ours shall take corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller.
This chapter is the first of several which redressed abuses springing from one root, namely, the exercise of the royal right of purveyance by the various agents of the local government.
I. Purveyance in General. The Norman and Angevin kings of England were compelled by their administrative duties and induced by the pleasures of the chase to move their courts constantly from district to district. During these royal progresses the difficulties must have been great of finding sufficient food for the enormous retinues surrounding the king in times of peace, and for his armed levies in time of war. It was to the interests of the community as a whole that the work of government and of national defence should not be brought to a stand-still for want of supplies. No opposition was made when the king arrogated to himself the privilege of appropriating, under fair conditions, such necessaries as his household might require. Such a right, not unlike that enjoyed in modern times by the commander of an army encamped in an enemy’s country, was allowed to the kings of England in their own land in times of peace, and was known as the prerogative of purveyance.[681] Unfortunately, the conditions under which supplies might be requisitioned were left vague: the privilege was therefore subject to constant abuse. In theory it was always spoken of as merely a right of pre-emption; the provisions seized were to be paid for at the market rate: but practice tended to differ lamentably from theory. In the absence of a neutral arbitrator to fix the value of the goods, the unfortunate seller was often thankful to accept any pittance offered by royal officials, who might subsequently indeed charge a higher rate against the Crown. Payment was often indefinitely delayed or made not in coin but in exchequer tallies, “a vexatious anticipation of taxation,” since these could only be used in payment of Crown dues. What was worse, in the hurry of the moment, the king’s purveyors often omitted the formality of paying altogether.
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Footnote 681:
See Blackstone, Commentaries, I. 287, for an often-quoted definition of purveyance.
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Magna Carta did not abolish purveyance, and placed no restrictions whatever upon its use for the legitimate and original purpose of supplying the king’s household. Some slight attempt to control its exercise was made sixty years later in the Statute of Westminster I.; but without producing much effect.[682] The grievances connected with purveyance continued throughout four centuries as a fertile source of vexation to the people and of friction between parliament and the king. An attempt, made by the House of Commons to induce James I. to surrender this prerogative for a suitable money grant, ended in failure, with the abandonment of the abortive treaty known as “the Great Contract.” In the general re-settlement of the revenue, however, at the Restoration, purveyance and pre-emption, which had fallen into disuse during the Commonwealth, were abolished.[683] Yet in the following year a new statute[684] virtually revived one branch of the right under essential modifications: when royal progresses were necessary in the future, warrants might be issued from the Board of Green Cloth, authorizing the king to use such carts and carriages as he might require, at a fair rate of hire specified in the Act of Parliament.
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Footnote 682:
3 Edward I. c. 32.
Footnote 683:
12 Charles II. c. 24, ss. 11-12.
Footnote 684:
13 Charles II. c. 8.
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II. Branches of Purveyance restricted by Magna Carta. A practice tolerated in spite of its burdensome nature because of its absolute necessity, when confined to its original purpose of providing for the needs of the king’s household, became intolerable when claimed by every castle-warden, sheriff, and local bailiff for his own personal or official needs. The annoyance and hardships inseparable from such arbitrary interference with the rights of private property were thus increased tenfold, while ample discretionary authority was vested in a class of officials least qualified to use it, unscrupulous foreign adventurers hired by John to intimidate the native population, responsible to no one save the king, and careful never to issue from their strongholds except at the head of their reckless soldiery. The Great Charter contained a few moderate provisions for checking the abuses of purveyance as an instrument of local administration.
(1) The provisioning of castles. Commanders of fortresses were left perfectly free by Magna Carta to help themselves to such corn and other supplies as they deemed necessary for their garrisons. Immediate payment, however, must be made in current coin (not in exchequer tallies) for everything they requisitioned, unless the owner, on whom a compulsory sale was forced, consented to postpone the date of payment. The Charter of 1216 made a slight modification in favour of castellans. Payment for goods taken from inhabitants of the town where the castle was situated might be legally delayed for three weeks, a term extended in 1217 to forty days. Such relaxation was perhaps necessary to meet the case of a warden with an empty purse called on to provide against an unexpected siege or other emergency; but the peaceful townsmen, over whose dwellings the dark walls of a feudal stronghold loomed, would not prove creditors who pressed unduly for payment. Under Henry’s Charters, as under that of John, immediate payment had to be tendered to owners of goods who lived elsewhere than in this neighbouring town.[685]
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Footnote 685:
The Statute of Westminster I. (3 Edward I. c. 7) enacted “that no constable or castellan from henceforth take any prise or like thing of any other than of such as be of their town or castle, and that it be paid or else agreement made within forty days, if it be not ancient prise due to the king, or the castle, or the lord of the castle,” and further provided (c. 32) that purveyors taking goods for the king’s use, or for a garrison, and appropriating the price received therefor from the exchequer, should be liable in double payment and to imprisonment during the king’s pleasure.
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(2) The requisitioning of horses and carts. The provisions of chapter 30, modified in subsequent re-issues, sought to prohibit sheriffs from exacting compulsory cartage from the property of freemen.
(3) The appropriation of timber. The succeeding chapter confined the king and his officers to the use of such wood as they could obtain from the royal demesnes.[686]
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Footnote 686:
For details, see under cc. 30 and 31.
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III. Branches of Purveyance not mentioned in Magna Carta. A wide field was left alike for the use and the abuse of this prerogative, after due effect had been given to these moderate provisions. In addition to the constant friction kept up through many centuries by its employment as a means of supplying the wants of the king’s household, two minor aspects of purveyance came into special prominence in later history.
(1) The requisition of forced labour. Hallam points out that the king’s rights of pre-emption over such goods as he required were extended, by analogy, to his subjects’ labour. "Thus Edward III. announces to all sheriffs that William of Walsingham had a commission to collect as many painters as might suffice for ‘our works in St. Stephen’s chapel, Westminster, to be at our wages as long as shall be necessary’; and to arrest and keep in prison all who should refuse or be refractory; and enjoins them to lend their assistance. Windsor Castle owes its massive magnificence to labourers impressed from every part of the kingdom. There is even a commission from Edward IV. to take as many workmen in gold as were wanted, and employ them at the king’s cost upon the trappings of himself and his household."[687] Perhaps, however, such demands did not form a branch of purveyance at all, but were merely instances of illegal royal encroachments.
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Footnote 687:
Hallam, Middle Ages, III. 221.
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(2) Billeting of soldiers in private houses. This practice, which may be considered a branch of purveyance, has always been peculiarly abhorrent to public opinion in England. It is as old as the reign of John; for when that king visited York in 1201 he complained bitterly that the citizens neither came out to meet him nor provided for the wants of his crossbow-men. His threats and demands for hostages were with difficulty turned aside by a money payment of £100.[688] Charles I. made an oppressive use of this branch of what seems to have been once a perfectly legal prerogative, punishing householders who opposed his unpopular measures by quartering his dissolute soldiery upon them, a practice branded as illegal by the Petition of Right in 1628.[689]
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Footnote 688:
See Rotuli de oblatis et finibus, 119.
Footnote 689:
See 3 Charles I. c. 1.
CHAPTER TWENTY-NINE.
Nullus constabularius distringat aliquem militem ad dandum denarios pro custodia castri, si facere voluerit custodiam illam in propria persona sua, vel per alium probum hominem, si ipse eam facere non possit propter racionabilem causam; et si nos duxerimus vel miserimus eum in exercitum, erit quietus de custodia, secundum quantitatem temporis quo per nos fuerit in exercitu.
No constable shall compel any knight to give money in lieu of castle-guard, when he is willing to perform it in his own person, or (if he himself cannot do it from any reasonable cause) then by another responsible man. Further, if we have led or sent him upon military service, he shall be relieved from guard in proportion to the time during which he has been on service because of us.
Castle-guard, or the liability to serve in the garrison of a royal fortress, formed part of the feudal obligations of the owners of certain freehold estates. This service was sometimes due in lieu of attendance in the army; more usually the tenant who owed garrison duty owed knight’s service as well.[690] It was probably this duplication of duties that prevented castle-guard from hardening into a separate tenure.[691] The right to enforce these obligations was naturally entrusted to the constables of the various castles whose duty it was to keep their garrisons at their full strength. John, however, preferred to commute personal service of castle-guard for money payments (analogous to the scutage paid in lieu of knight’s service), and to man his feudal towers with soldiers of fortune rather than with rebellious Englishmen. Castellans were, therefore, in the habit of demanding money even from those who offered personal service. What was worse, when the freeholder had followed John on distant service, he was mulcted in a money payment because he had not stayed at home to perform garrison duty during the same period. Both forms of this abuse were absolutely forbidden in 1215. In certain circumstances, however, this prohibition would have deprived the king of what was equitably due to him. Suppose he had granted two fiefs to the same tenant—one by simple knight’s service, the other by castle-ward. A double holding implied double service; the tenant could not in fairness plead that the service of one knight rendered abroad operated as the full discharge of the services of two knights due from his two separate fiefs. Castle-guard must in such a case be performed by an efficient deputy, or else the usual compensation be paid. The reissue of 1217 amended John’s Charter to this effect. Service with the army abroad operated as a discharge of castle-guard at home, but not where the tenant owed two services for two distinct fiefs.[692]
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Footnote 690:
See the examples collected in Pollock and Maitland, I. 257. See also in Rotuli de oblatis et finibus, 107, how in 1200 Ralph de Bradel offered John 40 marks and a palfrey to be relieved of “the custody of the work of the castle of Grimsby.”
Footnote 691:
Cf. supra, p. 70.
Footnote 692:
De feodo pro quo fecit servicium in exercitu. This variation in the charter of 1217 seems to have escaped Dr. Stubbs’ attention. See Select Charters, 346.
CHAPTER THIRTY.
Nullus vicecomes, vel ballivus noster, vel aliquis alius, capiat equos vel carectas alicujus liberi hominis pro cariagio faciendo, nisi de voluntate ipsius liberi hominis.
No sheriff or bailiff of ours, or any other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman.
The Charter here returned to the subject of purveyance, one branch of which it practically abolished, except as affecting villeins. No carts or horses belonging to a freeman were to be requisitioned by any sheriff or bailiff for the use of the Crown without the owner’s consent; that is to say, they could not be requisitioned at all. The clause, however, was carefully limited to freemen; the inference is plain, that the horses and implements of villeins were left at the disposal of the Crown without leave asked or price paid for their use. The relative chapter of the reissue of 1216 practically restored this branch of purveyance; consent of the owner, even when a freeman, need not be obtained, provided hire was paid at the rates sanctioned by ancient custom. Those rates, however, were definitely stated, namely, 10d. per diem for a cart with two horses, and 1s. 2d. for one with three.[693] Thus the prerogative, though restored, was not to be abused.
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Footnote 693:
The rate fixed by 13 Charles II. c. 8, for the hire of carts or carriages requisitioned by the king, was 6d. per mile. This hire included six oxen, or alternatively two horses and four oxen, to each vehicle.
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In 1217 it was again slightly restricted in favour of the upper classes. No demesne cart of any “parson” (ecclesiastica persona), or knight, or lady, could be requisitioned by the bailiffs. The “demesne” carts were, of course, those that belonged to the owner of the manor as opposed to the carts of the villeins. Here again we have evidence of care to make it clear, if not that villeins were to have no part or parcel in the benefits of the great Charter, at least that their rights, if they had any, could not stand against the more important rights of the Crown. Yeomen and small freeholders were also left exposed to this annoying form of interference. Abuses continued. Purveyors would occasionally lay hands on all available horses and carts in the countryside—far more than they required—choosing perhaps the season of harvest or some equally busy time. The owners, who urgently required them for their own purposes, would pay ransom money to regain possession. Edward I. enacted that perpetrators of such deeds should be “grievously punished by the marshals,” if they were members of his household, and therefore amenable to the summary jurisdiction of his domestic tribunal, or, if not members, then they should pay treble damages and suffer imprisonment for forty days.[694]
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Footnote 694:
See 3 Edward I. c. 32.
CHAPTER THIRTY-ONE.
Nec nos nec ballivi nostri capiemus alienum boscum ad castra, vel alia agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit.
Neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood.
Purveyance of timber growing elsewhere than on royal estates is here prohibited in absolute terms. In marked contrast with the limited restrictions placed upon other branches of purveyance, this branch is taken away, not merely from local officials, but from the king himself.[695] There was an obvious reason for greater stringency in this case: the king’s own extensive demesne woods furnished timber in abundance, whether for building purposes or for firewood, leaving him no excuse for taking, especially if for nothing, the trees of other people.
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Footnote 695:
Cf. Sir James Ramsay, Angevin Empire, p. 476, who considers that chapters 28 and 30, in the branches of prerogative with which they respectively deal, "leave the king’s personal right open."
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The purveyors of James I., shortly after his accession, transgressed this provision of Magna Carta by requisitioning timber for repairing the fortifications of Calais. A decision against the Crown was given by the Barons of Exchequer in the second year of James’s reign, and a proclamation was issued, bearing date 23rd April, 1607, disclaiming any right to such a prerogative. The guilty purveyors were brought before the Star Chamber.[696]
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Footnote 696:
See Coke, Second Institute, 36.
CHAPTER THIRTY-TWO.
Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terre dominis feodorum.
We will not retain beyond one year and one day, the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs.
I. The Crown’s Claim to the Property of Felons. The Crown had gradually established certain rights, not too clearly defined, in the property of all criminals formally indicted and sentenced for felony. John, here as elsewhere, took full advantage of the vagueness of the law to stretch prerogative to its utmost limit. Magna Carta, therefore, attempted to define the exact boundaries of his rights. The old customary law seems invariably to have given the chattels of a condemned man to the owner of the court which tried him, and the desire for such perquisites must have created an unfortunate bias against the accused. It was not possible, however, to adopt so simple a rule with regard to the real estate of felons, for this was claimed as escheat by the feudal lord from whom the lands were held. Custom gave the land of a felon to his feudal lord, and his chattels to the lord who tried him. The Crown gradually encroached on the rights of both, claiming the real estate of felons, as against mesne lords, and their personal estate, as against the lords who had jurisdiction.
(1) The felon’s lands. No difficulty arose when Crown tenants were convicted, since there the king was lord of the fief as well as lord paramount, and claimed the whole lands as escheat. When the condemned man was the tenant of a mesne lord, however, a conflict of interests occurred, and here a distinction, which gradually became hard and fast, was drawn between treason and felony.[697] Treason was an offence against the person of the sovereign, and it was probably on this ground that the king made good his claim to seize as forfeit the entire estate, real and personal, of every one condemned to a traitor’s death. With regard to ordinary felons, what looks like a compromise was arrived at. The king secured the right to lay waste the lands in question and to appropriate everything he could find there during the space of a year and a day; after which period he was bound to hand over the freehold thus devastated to the lord who claimed the escheat. Such was the custom during the reign of Henry II. as described by Glanvill, who makes it perfectly clear that before the lands were given up at the expiration of the year, the houses were thrown down and the trees rooted up, thus purging away the taint of crime and enriching the exchequer with the price of the timber and building materials.[698] The exercise of this right of waste inflicted upon the lord of the escheat an amount of damage out of all proportion to the benefit it brought to the king. The lord, when at last he entered into possession of the escheated lands, found a desert, not a prosperous manor.[699]
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Footnote 697:
Pollock and Maitland, II. 500, consider that the present chapter had a distinct influence in accentuating this twofold classification of crimes.
Footnote 698:
Glanvill, VII. c. 17. Cf. Bracton, folio 129, for a graphic description of “waste,” which included the destruction of gardens, the ploughing up of meadow land, and the uprooting of woods.
Footnote 699:
Is it possible that the origin of “year and waste” can be traced to the difficulty of agreeing on a definition of “real” and “personal” estate respectively? The Crown would claim everything it could as "chattels"—a year’s crops and everything above the ground.
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Coke has attempted to give a more restricted explanation of the Crown’s rights in this respect, maintaining that the “year and day” was not an addition to, but a substitute for, the earlier right of “waste,” that the king renounced his barbarous claims in return for the undisputed enjoyment of the ordinary produce for one year only, and agreed, in return for this, to hand over the land with all buildings and appurtenances intact.[700] The authorities he cites, however, are inconclusive, and the weight of evidence on the other side leaves little room for doubt. Not only does the phrase “year day and waste” commonly used, create a strong presumption; but Glanvill’s words in speaking of the earlier practice are quite free from ambiguity, while the document known as the Praerogativa Regis is equally explicit for a period long after Magna Carta.[701] Waste, indeed, was a question of degree, and the Crown was not likely to be scrupulous in regard to felons’ lands, when it allowed wanton destruction even of Crown fiefs held in honourable wardship.[702] A year was by no means too long for a thorough exercise of the right of waste.
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Footnote 700:
Second Institute, p. 36.
Footnote 701:
See Pollock and Maitland, I. 316. “The apocryphal statute praerogativa regis which may represent the practice of the earlier years of Edward I.” Bracton (folio 129) while stating that the Crown claimed both, seems to doubt the legality of the claim.
Footnote 702:
Cf. supra, pp. 244-6.
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Wide as were the legal rights of the Crown, John extended them illegally. When his officers had once obtained a footing in the felon’s land, they refused to surrender it to the rightful lord after the year and day had expired. In 1205, Thomas de Aula paid 40 marks and a palfrey to get what he ought to have had for nothing, namely the lands escheated to him through his tenant’s felony.[703] Magna Carta prohibited such abuses for the future; prompt evacuation must henceforth take place when the year was over; and this settled the law for centuries.[704] The Crown long exercised its rights, thus limited, and Henry III. sometimes sold his “year day and waste,” for considerable sums. Thus, in 1229 Geoffrey of Pomeroy was debited with 20 marks for the Crown’s rights in the lands of William de Streete and for his corn and chattels. This sum was afterwards discharged, however, on the ground that the king, induced to change his mind, doubtless by a higher bid, had bestowed these rights on another.[705]
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Footnote 703:
Such at least is the most probable explanation of an entry on the Pipe Roll of 6 John (cited Madox, I. 488); although it is possible that Thomas only bought in “the year day and waste.”
Footnote 704:
Magna Carta is peculiar in speaking of year and day, without any reference to waste. If it meant to abolish “waste” it ought to have been more explicit. Later records speak of “annum et vastum,” e.g. the Memoranda Roll, 42 Henry III. (cited Madox, I. 315), relates how 60 marks were due as the price of the “year and waste” of a mill, the owner of which had been hanged.
Footnote 705:
Pipe Roll, 13 Henry III., cited Madox, I. 347. In Kent, lands held in gavelkind were exempt alike from the lord’s escheat and the king’s waste, according to the maxim “The father to the bough, the son to the plough.” See, e.g. praerogativa regis, c. 16.
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(2) The felon’s chattels. From an early date the king enjoyed, like other owners of courts, the right to the goods of the offenders he condemned. When Henry II. reorganized the entire system of criminal justice, and formulated, in the Assizes of Clarendon and Northampton, a scheme whereby all grave offenders should be formally indicted, and thereafter reserved for the coming of his own justices, he established what was practically a royal monopoly of jurisdiction over felons; and this logically implied a monopoly over their chattels as well—an inference confirmed by the express terms of article five of the earlier Assize. As the list of “pleas of the Crown,” which is in this connection identical with the list of “felonies,” grew longer, so this branch of royal revenue increased proportionately at the expense of the private owners of “courts leet.” Even in the ten years between the criminal codes of 1166 and 1176, two new offences were added to the list, forgery and arson. The goods of all outlaws and fugitives from justice likewise fell to the exchequer—the sheriff who seized them being responsible for their appraised value.[706]
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Footnote 706:
Madox. I. 344-8, cites from the Pipe Rolls many examples.
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The magnates in 1215 made no attempt to interfere with this branch of administration, tacitly acquiescing in Henry II.’s encroachments on their ancestors’ criminal jurisdictions and perquisites. Under Henry III. and Edward I. the forfeited goods of felons continued to form a valuable source of revenue. In 1290 the widow of a man who had committed suicide, and therefore incurred forfeit as a felo de se, bought in his goods and chattels for £300, a high price, in addition to which the Crown specially reserved its “year day and waste.”[707]
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Footnote 707:
This case is cited by Madox, I. 347, from 18 Edward I.
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II. Indictment, Conviction, and Attainder. The Crown could not appropriate the property of men merely suspected of crime, however strong might be the presumption of guilt. Mere accusation was not enough; a formal judgment was required. The Charter refers to the lands of a “convicted” offender, and conviction must be distinguished from indictment on the one hand, and from attainder on the other; since these formed three stages in the procedure for determining guilt.
(1) Indictment. It has already been shown[708] how Henry of Anjou tried to substitute, wherever possible, indictment by a jury for private appeal in criminal suits. The Assize of Clarendon authorized such indictments to be taken before sheriffs, and we learn from Bracton that immediately the formal accusation had been made the sheriff became responsible for the safety of the accused man’s property, both real and personal. With the help of the coroners and of lawful men of the neighbourhood he must have the chattels appraised and inventoried, and hold them in suspense until the “trial,” providing therefrom in the interval “estovers,” that is, sufficient sustenance for the accused and his family.[709]
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Footnote 708:
Supra, p. 108.
Footnote 709:
See Bracton, II. folio 123, and folio 137.
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If the prisoner was acquitted or died before conviction, then the lands and chattels were restored to him or to his relatives, the Crown taking nothing. Reginald of Cornhill, sheriff of Kent, was discharged in 1201 from liability for the appraised value of the goods of a man who, after indictment for the burning of a house, had died in gaol non convictus. As the Pipe Roll clearly states, his chattels did not pertain to the king.[710]
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Footnote 710:
Pipe Roll, 2 John, cited Madox, I. 348.
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(2) Conviction. If the sheriff presided over all preliminary procedure connected with indictment, only the justices could “try” the plea, that is, give sentence according to success or failure in the test appointed for the accused man to perform.[711] Prior to 1215 the usual test, in accordance with the Assize of Clarendon, was the ordeal of water in the ordinary case, or of the red-hot iron in the case of men of high rank, or of women. If the suspected man failed, sentence was a mere formality; he had “convicted” himself of the felony. As a consequence of the condemnation of ordeal by the Lateran Council of 1215, the verdict of guilty pronounced by what was virtually a petty jury, became the normal “test” which branded an offender as convictus. This was long looked on as an innovation, and accordingly the law refused to compel the accused, against his will, to trust his fate to this new form of trial. He might refuse to “put himself upon his country,” and by thus “standing mute,” as the phrase was, make his own “conviction” impossible, saving himself from punishment and depriving the king of his chattels and “year and day.” For centuries those responsible shrank from the obvious course of treating silence as equivalent to a plea of guilty; but while liberty to refuse to submit to a jury’s verdict was theoretically recognized, barbarous measures were in reality adopted to compel consent. The Statute of Westminster in 1275[712] directed that all who refused should be imprisoned en le prison forte et dure. The object seems to have been to ensure that obstinate offenders should not escape altogether unpunished, although they saved their property by avoiding a technical conviction. This statutory authority for strict confinement, however, was very liberally interpreted by the agents of the Crown, who treated it as a legal warrant for revolting cruelties, aimed at compelling the stubborn to put themselves upon a jury. Food and drink were virtually denied to them, a little mouldy bread and a mouthful of impure water only being allowed them upon alternate days; and at a later date the prisoner was slowly crushed to death under great weights “as heavy, yea heavier than he can bear.” Brave men, guilty, or mayhap innocent, but suspicious of a corrupt jury, preferred thus to die in torments, that they might save to their wives and children the property which would upon conviction have fallen to the Crown. The fiction was carefully maintained that the victim of such barbarous treatment was not subjected to “torture,” always illegal at common law, but merely to peine forte et dure, a perfectly legal method of persuasion under the Statute of 1275. This procedure was not abolished until 1772; then only was an accused man for the first time deprived of his right to "have his law"—his claim to ordeal as the old method of proving his innocence. Until that date then, a jury’s verdict was treated as though it were still a new-fangled and unwarranted form of “test” usurping the place of the ordeal, although the latter had been virtually abolished early in the thirteenth century.[713]
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Footnote 711:
Cf. supra, c. 24.
Footnote 712:
3 Edward I. c. 12.
Footnote 713:
The Act 12 George III. c. 20, made standing mute equivalent to a plea of guilty. A later act, 7 and 8 George IV. c. 28, made it equivalent to a plea of not guilty. See Stephen, Hist. Crim. Law, I. 298.
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(3) Attainder. Coke in commenting on this passage draws a further distinction between “conviction” which resulted immediately either from a confession or from a verdict of guilty, and “attainder” which required in addition a formal sentence by the judge. In his age, apparently, it was the sentence of attaint which implied the forfeiture; looking as usual at Magna Carta through seventeenth-century glasses, he seems surprised to find “convicted” used where he would have written “attainted.” Yet this distinction, if recognized at all in 1215, must have been quite immaterial then. It was under the Tudor sovereigns that the doctrine of the penal effects of attainder was fully elaborated. When sentence was passed on a felon, a blight as it were fell immediately upon him: his blood was henceforth in the eye of the law impure, and his kindred could inherit nothing that was his or that came through him. No one could be treated as a blood relation of one whose entire blood was tainted; and the Crown naturally reaped the profit.[714]
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Footnote 714:
This fiction of corrupt blood was apparently based in part on a false derivation of the word “attainder.” See Oxford English Dictionary.
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A series of statutes of the nineteenth century modified the harshness with which this rule bore on the felon’s innocent relations;[715] and finally the Forfeiture Act of 1870[716] abolished “corruption of blood” and deprived the Crown completely of all interest in the estates of felons, alike in escheats and in chattels. Thus the word “attainted” has become practically obsolete, and the distinction insisted on by Coke has ceased to have any importance in modern law. A criminal who is fulfilling the term of his sentence is known, not as a man attainted, but simply as a “convict,” the same word as was used in Magna Carta.
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Footnote 715:
E.g. 54 George III. c. 145, and 3 and 4 William IV. c. 106, s. 10.
Footnote 716:
33 and 34 Victoria, c. 23.
CHAPTER THIRTY-THREE.
Omnes kydelli de cetero deponantur penitus de Tamisia, et de Medewaye, et per totam Angliam, nisi per costeram maris.
All kydells for the future shall be removed altogether from Thames and Medway, and throughout all England, except upon the sea coast.
The object of this provision is open to no reasonable grounds of doubt; it was intended to remove from rivers all obstacles likely to interfere with navigation. The full importance of such a measure can only be understood when the deplorable condition of the few roads which existed in the Middle Ages is kept in view. The water-ways were the great avenues of commerce; when these were blocked, the townsmen and traders suffered loss, while those who depended on them for their necessaries, comforts, and luxuries, shared in the general inconvenience. Magna Carta intervened in the interests of all classes, and demanded the immediate removal of obstructions which interrupted inland traffic. Only one class of impediments indeed was mentioned, “kydells” (or fish-weirs), not because of the purposes to which these were put, but because they were the form of obstruction which called for repressive measures at the moment. This word, whatever narrower technical meaning it may have borne in later days, seems to have been used by the framers of Magna Carta in a wide general sense, as applying to all fixed and bulky contrivances or “engines” intended to catch fish, and likely to interfere with the free passage of boats.[717]
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Footnote 717:
The Oxford English Dictionary defines it as “a dam, weir, or barrier in a river, having an opening in it fitted with nets or other appliances for catching fish,” and also as “an arrangement of stake-nets on the sea-beach for the same purpose.”
It has been gratuitously assumed that the motive for prohibiting these “kydells” must have been of a similar kind to the motive for constructing them; and that therefore the object of the present chapter was to prevent the Crown or others from acquiring a monopoly of rights of fishing to the exclusion of the public. Law courts and writers on jurisprudence for many centuries uniformly endorsed this mistaken view, and treated Magna Carta as an absolute prohibition of the creation of “several” (or exclusive) fisheries in tidal waters.[718] Although this legal doctrine has been frequently and authoritatively enunciated, it rests undoubtedly on a historical misconception. The Great Charter sought to protect freedom of navigation, not freedom of fishing; and this is obvious from the last words of the chapter: kydells are to be removed from Thames and Medway and throughout all England “except upon the sea-coast.” It would have been a manifest absurdity to allow the creation of monopolies of taking fish in the open seas, while insisting on perfect freedom of fishing in rivers, the banks of which were private property. The sense is quite clear: no objection was taken to “kydells,” whatever they might be, so long as they did not interfere with navigation.
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Footnote 718:
Blackstone, Commentaries, IV. 424, declared that this chapter “prohibited for the future the grants of exclusive fisheries.” Cf. e.g. Thomson, Magna Charta, 214, and Norgate, John Lackland, 217. See also Malcolmson v. O’Dea (1862), 10 H. of L. Cas., 593, and Neill v. Duke of Devonshire (1882), 8 App. Ca. at p. 179,—cases cited in Moore, History and Law of Fisheries, p. 13, where the fallacy is exposed.
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The erroneous view, however, had much to excuse it, and acquired plausibility from the circumstance that the destruction of obstacles to the free passage of boats incidentally secured also free passage for salmon and other migratory fish; and that later statutes, when legislative motives had become more complicated, were sometimes passed with both of these objects in view. The change is well illustrated by a comparison of the words of two statutes of 1350 and of 1472 respectively. The first of these repeats the substance of this chapter of Magna Carta, and thus explains its object:—“Whereas the common passage of boats and ships in the great rivers of England be oftentimes annoyed by the inhancing of gorces, mills, weirs, stanks, stakes, and kydells.”[719] Here there is no allusion to fish or rights of fishing. The later act, while confirming, under penalties, previous statutes for the suppression of weirs, not only states its own intention as twofold, namely, to protect navigation of rivers, and “also in safeguard of all the fry of fish spawned within the same,” but retrospectively and unwarrantably attributes a like double motive to Magna Carta.[720]
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Footnote 719:
25 Edward III., stat. 3, c. 4.
Footnote 720:
12 Edward IV. c. 7. Apparently the earliest statute which refers to weirs as causing injury to fish was one passed in 1402, namely, 4 Henry IV. c. 11, see Moore, Fisheries, p. 175.
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So far as the Thames and Medway were concerned, this provision contained nothing new. To the Londoners, indeed, the keeping open of their river for trade was a matter of vital importance. The right to destroy all kydelli in the Thames and Medway had been purchased from Richard I. for 1500 marks, and a further sum had been paid to John to have this confirmed. The charter of Richard I. is dated 14th July, 1197; and that of John, 17th June, 1199. Each king declared, in words practically identical, that Hubert Walter, Archbishop of Canterbury, and others had pointed out “that great detriment and discommodity hath grown to our said city of London, and also to the said realm by occasion of the said kydells.” Accordingly each charter declared that the king has “granted and steadfastly commanded that all kydells that are in the Thames be removed wheresoever they shall be within the Thames; also we have quit-claimed all that which the Warden of our Tower of London was wont yearly to receive from the said kydells. Wherefore we will and steadfastly command that no warden of the said Tower, at any time hereafter, shall exact anything of any one, neither molest nor burden nor make any demand of any person by reason of the said kydells.” John’s charter of 1199 went further than that of Richard, making it clear that the prohibition referred to the Medway as well as to the Thames, and granting the right to inflict a penalty of £10 upon anyone infringing its provisions.[721]
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Footnote 721:
It seems to have been generally assumed that these charters conferred positive as well as negative privileges on the citizens of London; that not merely were obstructions to navigation thereby prohibited in their interests, but that wide rights of administration and jurisdiction over the waters of the Thames were conferred on the city authorities (rights which previous to 1197 had been exercised, it is assumed, by the Constable of the Tower of London). See Noorthouck, New History of London (1773) p. 36, and Luffman, Charters of London (1793) p. 13. The latter says of Richard’s grant in 1197: “By this charter the citizens became conservators of the river Thames.” The Patent Rolls of 33 Edward I.; 5 Edward III.; 8 Edward III., etc.; contain Commissions of Conservancy. See Moore, ibid., p. 176. In 1393 the statute of 17 Richard II. c. 9 granted authority to the Mayor of London to regulate weirs likely to destroy fish, and generally to “conserve” the Thames from Staines downwards, along with the Medway.
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Magna Carta merely confirmed, and extended to all rivers, a prohibition already secured by the Londoners specially for their own river. The provision was repeated in the reissues of Henry III. The citizens, however, did not rest content with a clause in a general enactment, but purchased for 5000 marks three new charters exclusively in their own favour. One of these, dealing with kydells in Thames and Medway, was issued by Henry on 18th February, 1227, in terms almost identical with those of Richard and John.[722]
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Footnote 722:
See Rotuli Cartarum, under the year 11 Henry III.
CHAPTER THIRTY-FOUR.
Breve quod vocatur Precipe de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam.
The writ which is called praecipe shall not for the future be issued to anyone, concerning any tenement whereby a freeman may lose his court.
In extorting from John a solemn promise to restrict the use of the particular writ here referred to, the barons gained something of infinitely greater value than a petty reform of court procedure; they committed their enemy to a complete reversal of a line of policy vigorously and consistently pursued for at least half a century. The process by which the jurisdiction of the king’s courts was steadily undermining that of the feudal courts was now to be suddenly arrested. Magna Carta by this apparently inoffensive clause was grappling in reality with an urgent political problem of the day, fraught with tremendous practical issues alike for king and barons. This can only be understood in connection with the technical details on which it hinges.
I. Royal Writs and the Feudal Jurisdictions. The class of writs, called from their initial word “Writs praecipe,” was a large one, and freely used by the Crown for issuing peremptory orders of various kinds to its officers and others. This provision of Magna Carta had special reference to one type of these writs only, the so-called praecipe quod reddat.[723] These were intended to inaugurate, before the king’s justices, pleas for determining the ownership of property either by battle or by grand assize—preferably the latter. They were called “Writs of Right,” because they treated of questions of title, not merely questions of possession.
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Footnote 723:
The numerous varieties of writs praecipe are arranged by Coke (Second Institute, p. 40) in three groups, according to the nature of the orders they were intended to convey, viz.:—(a) praecipe quod reddat; (b) quod permittat; and (c) quod faciat. Those specially referred to in this chapter are of the first type.
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The form of a praecipe quod reddat, as actually issued from the Chancery of Henry II. (who invented it), is given by Glanvill, and its terms illustrate the insidious methods by which the Crown encroached on feudal jurisdictions.[724] The writ was directed to the sheriff, and began bluntly:—“Command” (praecipe) A. “to give back” (quod reddat) to B. a piece of ground there specified, or alternatively, “to explain why he had not done so” (ostensurus quare non fecerit). The real object does not, however, appear upon the surface. It was by no means intended that the man to whom the command was issued, should abandon his claim without discussion. He would naturally take the alternative allowed him, namely, appear before the king’s justices and there “show cause” why he had not obeyed the order, by proving (if he could) a better title to the property in dispute than that alleged by the rival claimant. The writ, which on the surface reads merely as a summary and final command to hand over the estate to another, is really an “original writ” commencing a litigation in the king’s court. One important effect of its issue was that all proceedings instituted in inferior tribunals must immediately stop.
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Footnote 724:
The writ ran as follows:—Rex vicecomiti salutem, Praecipe A. quod sine dilatione reddat B. unam hidam terrae in villa illa, unde idem B. queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum per bonos summonitores quod sit ibi coram me vel Justiciariis meis in crastino post octabas clausi Paschae apud locum illum, ostensurus quare non fecerit. Et habeas ibi summonitores et hoc breve. Teste Ranulpho de Glanvilla apud Clarendon. See Glanvill, I. c. 6.
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The feudal lord, in whose court baron the plea would naturally have been decided, was thus robbed by the king of his jurisdiction. With it, he lost also authority over his tenants, and numerous fees and perquisites. The writ praecipe was thus mainly an ingenious device for “evoking” a particular cause from the manorial court to the king’s court.[725]
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Footnote 725:
Cf. Stubbs, Const. Hist., I. 576.
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Henry II., in inventing or systematizing the legal procedure known as “the writ process,” because its leading feature was that it forbade any action to be begun without a royal writ, had two objects in view. While reforming by its instrumentality the entire administration of justice in England, the king hoped by the same means, to destroy gradually the feudal privileges of his magnates. He intended, step by step, to draw into his own courts all pleas relating to land. Questions of property were to be tried before his justices, by combat or, at the defendant’s option, by the grand assize; questions of possession (without any option) by the appropriate petty assize. The barons showed no desire to dispute the Crown’s assumption of a monopoly over the petty assizes; indeed they cordially acquiesced in this by the terms of chapter 18 of the Charter. The grand assize was another matter; they refused to be robbed of their right to determine, in their own courts baron, proprietary actions between their own tenants. Indeed, for such wholesale extension of the king’s jurisdiction over pleas of land, Henry II. had absolutely no precedent. He had made the Crown strong and then used its power for his own aggrandizement. The king’s courts had increased their authority, as a distinguished American historian has expressed it, “by direct usurpation, in derogation of the rights of the popular courts and manorial franchises, upon the sole authority of the king.”[726]
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Footnote 726:
See Bigelow, Hist. of Procedure, 78. Glanvill, read between the lines, contains admissions which support this view. Friend of prerogative as he was, he shows consciousness of a distinction between the proper and improper use of the royal jurisdiction. Thus in I. c. 3, he speaks of the king’s courts as normally dealing with “pleas of baronies” (i.e. litigations concerning Crown fiefs); in I. c. 5, he speaks of what he evidently considers an abnormal expansion of this jurisdiction to any plea anent a free tenement or fief, if the Crown so desired,—that is, the Crown claimed an option, in circumstances admitted to be abnormal, of deciding pleas as to fiefs held under mesne lords. This distinction is identical with that on which the present chapter of Magna Carta is based.
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Now, the chief instrument devised by Henry for effecting such usurpations was precisely this particular form of the writ praecipe (or Writ of Right).[727] Tenants whose titles were challenged gladly purchased such writs, as the only way to escape trial by combat; and John frequently issued them to the prejudice of feudal lords, whose jurisdiction was thus curtailed. The barons in 1215 considered this a grievance; and Magna Carta in demanding its redress deliberately attempted to arrest the process of royal usurpation. The tide must be turned back; the system of feudal justice, now fast becoming obsolete, must in its entirety be revived. Each freeman or baron must be left without competition as the sole source of justice to his own tenants in all pleas of land, unmolested by these new-fangled writs of right. It was not intended, of course, to abolish completely the extensive and useful class of writs praecipe; but merely to prevent the Crown using them as an engine of encroachment upon manorial jurisdictions.[728] The king might keep his own court and issue writs to his own tenants; but let him respect the courts of others. For the future, such writs must not be issued “concerning any tenement whereby a freeman may lose his court.” Writs praecipe might be freely used for any other purpose, but not for this. This one purpose, however, was exactly what had specially recommended it to the great king who had invented it.
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Footnote 727:
The normal procedure seems to have included the following steps: (a) a claimant in the court of the lord of the fief offers to prove by battle a better title than the tenant in possession; (b) the tenant applies to the king to have the issue decided by grand assize; (c) a writ praecipe quod reddat is then issued in the form given by Glanvill, I. c. 6, (already cited) virtually forbidding the claimant to proceed elsewhere than before the king; (d) a second writ follows in the form given by Glanvill, II. c. 8, forbidding the lord “to hold in his court the plea between the litigants M. and R. because M. the tenant has put himself upon my assize.” Cf. supra, c. 18.
Footnote 728:
Cf. Bracton, folio 281. See also Bracton’s Note Book, case 1215, where a certain writ praecipe was held not to be struck at by Magna Carta, since it did not take any man’s court away.
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The present chapter must, therefore, be regarded as containing one of the most reactionary provisions of the entire Charter. The barons had, at last, succeeded in compelling John to promise a complete reversal of a central part of the deliberate policy of his father.
Here, then, under the guise of a small change in legal procedure, was concealed a notable triumph of feudalism over the centralizing policy of the monarchy—a backward step, which, if given full effect to, might have ushered in a second era of feudal turbulence such as had disgraced the reign of Stephen. We are told on high authority that John’s acknowledgment of "the claims of the feudal lord to hold a court which shall enjoy an exclusive competence in proprietary actions"—was one which “Henry II. would hardly have been forced into.”[729] That may well be; but John had already more than once rejected this proposal with violence. In 1215, he could no longer strive against the inevitable, and agreed under compulsion to provisions which he had no intention to keep. The concession, although insincere, was nevertheless an important one. The substance of chapter 34 was repeated with some trivial verbal alterations in all future issues of Magna Carta.[730]
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Footnote 729:
Pollock and Maitland, I 151.
Footnote 730:
The version of 1216 speaks of a “free tenement,” where that of 1215 spoke merely of a “tenement.” The addition makes no change, since in no case could the king’s courts try pleas affecting the villeins of mesne lords. Perhaps the object of the addition is to make it clear that there was no interference with the king’s rights over the holdings of his own villeins on royal demesne.
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II. Influence of this Provision on later Legal Development. One important question still remains: Was this provision observed in practice? The answer is partly Yes, but chiefly No. Its letter was stringently enforced; but its spirit was evaded. (1) The Chancery, in obedience to Magna Carta, ceased to issue this particular form of writ in such a manner as to cause a freeman “to lose his court.” It was still issued to Crown tenants; but strictly denied to all under-tenants, who were thus left to find redress at the feudal court of the magnate from whom they held their land.[731] The measure thus forced on the Crown in the selfish interests of the baronage inflicted hardship on tenants of mesne lords, in whose faces the doors of the king’s tribunals, opened to them by Henry II., were once more closed in all pleas touching their freeholds. In such cases the court baron of their lord was now their only source of justice, and in that court they could not get the benefit of the improved methods of royal procedure. In particular, the grand assize was a royal monopoly. The magnates, indeed, desired to adopt it, but this was rendered difficult by an obstacle which the Crown made the most of.[732] They had difficulty in getting together twelve knights willing to act as jurors; and they could not force them to give a sworn verdict against their will. The king might compel; but a mesne lord could only persuade. Men of the required status objected to the waste of time, and dreaded the danger of being punished for false verdicts, inseparable from the duty of serving on a grand assize. Whatever hopes the barons may have entertained of overcoming such difficulties were disappointed. In 1259 the Provisions of Westminster declared that freeholders should not be compelled to swear against their will "since no one can make them do this without the King’s warrant."[733] It was the deliberate policy of Edward I. to exaggerate all such difficulties, putting every obstacle in the way of private courts, until he reduced their jurisdictions to sinecures.[734]
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Footnote 731:
The writs, thus restricted so that only tenants in capite could obtain them, were thereafter known as writs praecipe in capite. Under that name the writ appears in Coke’s version of the charter of Henry III. (Second Institute, p. 38), and in the translation given in the Statutes at Large of the reissue of 1225. There is no authority in any text of Magna Carta for the addition of the words in capite, and the explanation of their presence in these versions must be sought in the tendency of lawyers in an age long subsequent to 1215 to re-edit Magna Carta in the technical language of their own day. Coke emphasised the restriction of this remedy to Crown tenants. “No man ought to have this writ out of the Chancery upon a suggestion, but oath must be made, before the granting thereof, that the land is holden of the king in capite,” (p. 38), and he illustrates what he says by reference to two cases drawn from the reign of Edward I.
Footnote 732:
Such an attempt seems to have been made in 1207 by Walter de Lacy, Earl of Ulster, who set up in his Irish fief what is described as nova assisa, against which John protested. See Rot. Pat., I. 72, for writ dated 23rd May, 1207. In one case at least, exceptional it is true, John acquiesced in grand assizes being held in feudal courts. On 4th May, 1201, he granted licence to Hubert Walter (and his successors) to hold them for his tenants in gavelkind, a tenure peculiar to Kent. See New Rymer, I. 83.
Footnote 733:
See article 18 (Select Charters, p. 404). Other articles show a similar strong bias against seignorial justice. Cf. chapter 29 of the Petition of the Barons (Select Charters, 386), and the comment of Pollock and Maitland, I. 182: “The voice of the nation, or what made itself heard as such, no longer, as in 1215, demanded protection for the seignorial courts.”
Footnote 734:
There was, however, a partially successful attempt made to revive feudal jurisdictions as late as the reign of Edward III. See Stubbs, Const. Hist., II. 638-9.
(2) While the letter of Magna Carta was strictly kept, its spirit was evaded. It was impossible to give loyal effect to an enactment which went directly counter to the whole stream of progress. Manorial justice was falling fast into disrepute and abeyance, while royal justice was becoming more efficient and more popular, and was soon to rid itself of all competitors and obtain a monopoly. Under-tenants, deprived of access to the king’s court by the direct road of the writ praecipe, sought other and more tortuous modes of entrance. Legal fictions were devised. The great problem was how to evade Magna Carta without openly infringing it. The king’s justices and would-be litigants in the king’s courts formed a tacit alliance for this end, but had to proceed by slow and wary steps, in the teeth of bitter opposition from the powerful owners of seignorial courts. The process adopted consisted of a series of formal changes in the technical procedure of the king’s courts. Its key lies in the ingenious original (or originating) writs invented by Crown lawyers, which really effected one thing while professing to effect something quite different. These new writs were known as writs of entry and came half-way between writs of right (or writs praecipe) and the petty assizes; half-way between writs commencing actions dealing with title (and therefore attacked by chapter 34 of Magna Carta) and writs dealing with possession (and therefore welcomed by chapter 18). Writs of entry were thus, from the point of view of the magnate with his private court, wolves in sheep’s clothing. They professed to determine a question of possession, but really decided a question of ownership. At first the pleas to which they could be applied were few and special. Steadily new forms of action were devised to cover almost every conceivable case. The process of evolution was a long one, commencing soon after 1215, and virtually concluding with chapter 29 of the Statute of Marlborough, or rather with the liberal construction which Crown lawyers placed upon that statute in the following reign.
Edward I., at the height of his power, and eager to set his house in order, shrank from an open breach of the Great Charter, gladly adopting subtle expedients to cheat mesne lords out of the rights secured to them by the present chapter. In Edward’s reign, then, the legal machinery invented for this purpose was brought to perfection, so that thereafter no action relating to freehold was ever again tried in the courts baron of the magnates. All such pleas were, in direct violation of the spirit of Magna Carta, decided in the courts of the king.[735]
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Footnote 735:
Technical details are admirably given by Pollock and Maitland, II. 63-7. The whole family of writs were known as “writs of entry sur disseisin”; and these were applied to still wider uses after 1267 on the authority of the Statute of Marlborough, as “writs of entry sur disseisin on the post.” See also Maitland, Preface to Sel. Pleas in Manorial Courts, p. lv.
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The claimant, then, had no need to infringe the prohibition against the writ praecipe when he could obtain another writ, equally effective, under a different name. A writ of entry was, indeed, to a peaceable plaintiff, infinitely preferable to a writ praecipe, which could only be issued to one prepared to offer battle, the option of accepting lying with his adversary. Crown tenants, even, who could obtain the writ praecipe, came to prefer the more modern substitute; and clause 34 of Magna Carta was thereafter virtually obsolete.
One of the indirect effects of the clause was of a most unfortunate nature. The necessity it created for effecting reforms by a tortuous path did great and lasting harm to the form of English law. Legal fictions have indeed their uses, by evading technical rules of law in the interests of substantial justice. The price paid for this relief, however, is usually a heavy one. Complicated procedures and underhand expedients have to be invented, and these lead in turn to new legal technicalities of a more irrational nature than the old ones. It would have been better in the interests of scientific jurisprudence if so desirable a result could have been effected in a more straightforward manner. The authors of Magna Carta must bear the blame.[736]
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Footnote 736:
Cf. Pollock and Maitland, I. 151, and Sel. Pleas in Manorial Courts, already cited.
CHAPTER THIRTY-FIVE.
Una mensura vini sit per totum regnum nostrum, et una mensura cervisie, et una mensura bladi, scilicet quarterium Londonie, et una latitudo pannorum tinctorum et russetorum et halbergectorum, scilicet due ulne infra listas; de ponderibus autem sit ut de mensuris.
Let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of corn, to wit, “the London quarter”; and one width of cloth (whether dyed, or russet, or halberget), to wit, two ells within the selvedges; of weights also let it be as of measures.
This chapter re-enacted an important ordinance of Richard I., usually known as the Assize of Measures, but sometimes as the Assize of Cloth. That ordinance, the exact date of which is 20th November, 1197, was, according to modern conceptions of the proper sphere of government, partly commendable and partly ill-advised. It showed, on the one hand, a praiseworthy desire to set up definite standards of weights and measures, uniform throughout all parts of England. It strove thus to overcome the serious inconvenience experienced by traders, who met with varying standards as they moved with their wares from place to place. What was of more importance, the assize sought to obviate also the frauds frequently perpetrated upon buyers by unscrupulous merchants under the shelter of ambiguous weights and measures. The London quarter must, therefore be used everywhere for corn; and one measure for wine or beer. So far good. On the other hand, the ordinance of Richard went much further than modern ideas of laissez faire would tolerate. In particular, legitimate freedom of trade was interfered with by the cloth regulations reported by Roger of Hoveden.[737] No cloth, he tells us, was to be woven except of a uniform width, namely, “two ells within the lists.”[738]
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Footnote 737:
R. Hoveden, IV. 33-4.
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Footnote 738:
At a later date cloth of an alternative standard width was also legalized, viz., of one yard between the “lists.” Hence arose the distinction between “broadcloth” (that is, cloth of two yards) and “streits” (that is, narrow cloth of one yard). (See Statute I Richard III. c. 8.) The word “broadcloth” has, long since, changed its meaning, and now denotes material of superior quality, quite irrespective of width. See Oxford English Dictionary, under “Broadcloth.”
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Dyed cloths, it was provided, should be of equal quality through and through, as well in the middle as at the outside. Merchants were prohibited from darkening their windows by hanging up, to quote the quaint language of the ordinance, “cloth whether red or black, or shields (scuta) so as to deceive the sight of buyers seeking to choose good cloth.” Coloured cloth was only to be sold in cities or important boroughs. Here we have, apparently, a sumptuary law meant to ensure that the lower classes went in modest grey attire. Six lawful men were to be assigned to keep the Assize in each county and each important borough. These custodians of measures must see that no goods were bought or sold except according to the standards; imprison those found guilty of using other measures, whether by their own admission or by failure in the ordeal (confessus vel convictus); and seize the chattels of defaulters for the king’s behoof. If the custodes performed their duties negligently they were to suffer amercement of their chattels.[739] Richard’s Assize of Measures was supplemented in 1199 by John’s Assize of Wine, which tried to regulate the price of wines of various qualities,[740] an attempt not repeated in Magna Carta.
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Footnote 739:
Cf. supra, c. 20, for “amercements,” and supra, c. 24, for “custodes” of pleas (or coroners).
Footnote 740:
See R. Hoveden, IV. 100.
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The same author who gives us the text of the ordinance of 1197 tells us also that its terms were found to be too stringent, and had to be frequently relaxed in practice.[741] This was done in 1201. The king’s justices, we are told, wished to seize the cloth of certain merchants on the ground that it was less than the legal width. They compromised, however, by accepting a great sum of money “to the use of the king and to the damage of many.” Thus Hoveden denounces what he regards as an unlawful bargain between the justices and the traders for injuring buyers by evading the strict letter of the ordinance.
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Footnote 741:
See Hoveden, IV. 172, and Stubbs, Const. Hist., I. 616.
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Many examples of evasion may be found in the Pipe Rolls both before and after Magna Carta. The justices, indeed, were usually more bent on collecting fines for its breach than on enforcing the Assize. In 1203 two merchants of Worksop were amerced each in half a mark for selling wine contrary to the Assize, while the custodians of measures of the borough were also mulcted in one mark for performing their duty negligently—an exact illustration of the words of the ordinance.[742] In the same year a fine of one mark was imposed on certain merchants “for stretching cloth,” in order, presumably, to bring it to the legal width.[743] Merchants frequently paid heavy fines to escape the ordinance altogether.[744]
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Footnote 742:
See Pipe Roll, 4 John, cited Madox, I. 566.
Footnote 743:
See Ibid.
Footnote 744:
In 1203 the men of Worcester paid 100s. “ut possint emere et vendere pannos tinctos sicut solebant tempore Regis Henrici”; and the men of Bedford, Beverley, Norwich and other towns made similar payments. See Pipe Roll, 4 John, cited Madox, I. 468-9.
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When the barons in 1215 insisted upon John enforcing his brother’s ordinance in all its rigour, they took a step in their own interests as buyers, and against the interests of the trade guilds as sellers. Although this provision was repeated in all subsequent charters, it seems never to have produced much effect. The difficulty of enforcing such provisions in their strictness was great, and evasion continued. One example may suffice. In the second year of Henry III.[745] the citizens of London paid 40 marks that they might not be questioned for selling cloth less than two yards in width. Here is an illustration of the practice of the judges to which Hoveden had objected, and which Magna Carta had apparently failed to put down. Sometimes, however, the provisions of Richard’s Assize of Measures and of John’s Assize of Wine were still enforced. In 1219 a Lincolnshire parson, with a liberal conception of the scope of his parochial duties, had to pay 40s. for wine sold extra Assisam.[746] Parsons, apparently, might engage in trade, but only if they conformed to the usual regulations.
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Footnote 745:
See Pipe Roll, cited Madox, I. 509.
Footnote 746:
Pipe Roll, 3 Henry III., cited Madox, I. 567.
CHAPTER THIRTY-SIX.
Nichil detur vel capiatur de cetero pro brevi inquisicionis de vita vel membris, sed gratis concedatur et non negetur.
Nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied.
This chapter has an important bearing upon trial by combat, and none at all upon habeas corpus, to which it is often supposed to be closely related. The particular writ upon which such emphasis is here laid had been invented by Henry II. to obviate the judicial duel in certain cases, by allowing the accused man virtually to refer the question of his guilt or innocence to the sworn verdict of his neighbours.
I. Trial by Combat prior to the Reign of John. The crucial moment in judicial proceedings during the Middle Ages arrived, as has already been explained,[747] when the “test” or “trial” (lex) appointed by the court was attempted by one or both of the litigants. The particular form of proof to which the warlike Norman barons were attached was the duellum, and it was only natural that such of the old Anglo-Saxon aristocracy as associated with them on terms of equality should adopt their prejudices. Hence “combat” became the normal mode of deciding all serious disputes among the upper classes. Even from the first, however, it seems not to have been competent for property of less than 10s. in value,[748] and it soon came to be specially reserved for two classes of disputes—civil pleas instituted by writ of right, and criminal pleas following on “appeal.” The present chapter is concerned with the latter only.
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Footnote 747:
See supra, pp. 103-6.
Footnote 748:
See Leges Henrici primi, c. 69, §§ 15-16.
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An “appeal” in this connection was entirely different from the modern appeal from a lower to a higher court. It was a formal accusation of treason or felony made by a private individual on his own initiative, and was usually followed by judicial combat between the appellant and appellee, each of whom fought in person. Such a right was necessary in an age when the government had not yet assumed a general responsibility for bringing ordinary criminals to justice, or was at least so lax and spasmodic in performing that function as to leave many wrongdoers unpunished. Appeal followed by battle was probably in its origin a form of legal procedure substituted for the older blood-feud.[749] Those who had suffered wrong would be more readily dissuaded from their vendetta if they were allowed instead the right of judicial duel under fair conditions laid down by the court. The Norman trial by combat was thus a survival from an earlier stage of society when the wronged person, not the magistrate, had been the avenger of crime; and this explains several peculiarities—why, for example, when the accused had uttered “that hateful word craven,”[750] thus confessing himself vanquished and deserving a perjurer’s fate, the victorious accuser was entitled to his vengeance, even in the face of a royal pardon. When Henry of Essex, constable and standard-bearer of Henry II., accused by his enemy, Robert de Montfort, in 1163, had been worsted in the combat, the royal favour could not shield him, though apparently the king’s connivance enabled him, by renouncing his possessions and becoming a monk, and therefore dead in law, to escape actual death by hanging.[751] It would seem that at an early date the whole procedure had resembled even more closely a legalized private revenge, since the appellant who had vanquished his foe was allowed personally to put him to death. "The ancient usage was, so late as Henry IV.’s time, that all the relations of the slain should drag the appellee to the place of execution."[752]
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Footnote 749:
Cf. supra, c. 20.
Footnote 750:
“Illud verbum odiosum quod recreantus sit.” Bracton, folio 153.
Footnote 751:
See Jocelyn of Brakelond, pp. 50-2.
Footnote 752:
Blackstone, Commentaries, IV. 316.
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The evils of trial by combat are obvious. From the first it was dreaded and avoided by the traders of the boroughs, who paid heavily for charters of exemption. Their aversion spread to the higher classes, and was shared by Henry II. To that great statesman, endowed with the ardent instincts of a reformer, despising utterly all obsolete and irrational modes of procedure, and quite devoid of reverence for tradition, trial by combat was entirely abhorrent. He would gladly have abolished it out and out if he had dared; but he prudently followed the more subtle policy of slowly undermining its vitality. For this purpose he used four expedients, which are of great interest in respect that they throw light on the process by which trial by jury superseded trial by battle.[753] (1) Every facility was afforded the parties to a civil suit who were willing to forego the duellum voluntarily. Henry placed at their disposal, as a substitute, a procedure which had by his ancestors been specially reserved for the service of the Crown. Litigants might refer their rival claims to the oath of a picked body of local neighbours: the old recognitors thus developed into the jurata. This course was possible, however, only where both parties consented, and it had many features in common with a modern arbitration. (2) In pleas relating to the title and possession of land Henry went further, granting to the defendant the option of a peaceful settlement even when the claimant preferred battle. The men to whose oaths such cases were referred were known as an assisa, not a jurata, since both litigants had not consented. The three various groups of assizes welcomed by the barons in chapter 18 have already been discussed. The assisa, like the jurata, could be applied only to civil pleas. (3) Attempts were made to discourage trial by combat in criminal pleas also by discouraging the exercise of the right of private “appeal,” its natural prelude. The corporate voice of the accusing jury was made as far as possible to supersede the individual complaint of the injured party offering battle. Only the near blood relation, or the liege lord, of a murdered man was allowed to prove the offender’s guilt by combat; while a woman’s right of appeal was kept within narrow limits.[754] (4) A wide field was still left for private appeal and battle; but Henry endeavoured to narrow it by a subtle device. In appeals of homicide, where the accusation was not made bona fide, but maliciously or without probable cause, the appellee was afforded a means of escaping the duellum. He might apply for the writ which forms the subject of this chapter.
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Footnote 753:
Cf. supra, 107–9, and also 158-163.
Footnote 754:
Some particulars are given under c. 54.
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II. The Writ of Life and Limb. The writ here referred to, better known to medieval England as the writ de odio et atia,[755] was intended to protect from duel men unjustly appealed of homicide. Rash or malicious accusations might be raised by turbulent knights, who made fighting their pastime, in order to gratify a grudge against traders or other men of peace, and many an appealed man was glad to purchase from the king permission to escape by assuming the habit and tonsure of a monk;[756] but Henry desired to save innocent men from the risk of failure in the duellum without this subterfuge. If the accused asserted that his appellant acted “out of spite and hate” (de odio et atia), he might purchase from the royal chancery a writ known by that name, which referred the preliminary plea thus raised to the verdict of a sworn body of twelve recognitors drawn from his own locality. If his neighbours upheld the plea all further proceedings on the appeal were quashed: the duellum was avoided.[757] A similar privilege was afterwards extended to all those guilty of homicide in self-defence, or of homicide by misadventure, not of deliberate murder.[758] Soon every man appealed of murder, whether guilty or not, alleged as a matter of course that he had been accused groundlessly and maliciously, mere “words of common form.” This expansion of the writ’s sphere of usefulness was accompanied by another change. The main issue of guilt or innocence, not merely the preliminary pleas, came to be determined by the neighbours’ verdict,[759] which, whether for or against the accused, was treated as final. No further proceedings were necessary: none were allowed. The duellum had at last been successfully elbowed aside, although it was not abolished until 1819.[760]
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Footnote 755:
In identifying the writ spoken of by Magna Carta as that “of life and limbs” with the well-known writ de odio et atia, most authorities rely on a passage in Bracton (viz.: folio 123). There is still better evidence. The Statute of Westminster, II. c. 29, ordains: “Lest the parties appealed or indicted be kept long in prison, they shall have a writ de odio et atia like as it is declared in Magna Carta and other statutes.” Further, in 1231 twelve jurors who had given a verdict as to whether an appeal was false, were asked quo waranto fecerunt sacramentum illud de vita et membris, without the king’s licence. See Bracton’s Note Book, case 592.
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Footnote 756:
Madox, I. 505, has collected instances.
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III. Subsidiary Uses of the Writ. This inquest of life and limb, devised as a means of substituting a sworn verdict for the duellum in cases of homicide, has often been claimed as the direct antecedent of, if not as identical with, the procedure which in the seventeenth century became so valuable a bulwark of the subject’s liberty, under the name of habeas corpus. This is a mistake; the modern writ of habeas corpus was developed out of an entirely different writ, which had for its original object the safe-keeping of the prisoner’s body in gaol, not his liberation from unjust confinement.[761]
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Footnote 757:
Cf. Pollock and Maitland, II. 585-7, and Thayer, Evidence, 68.
Footnote 758:
It was extended in another direction also: some of the feudal courts adopted a similar procedure in false appeals (although the king objected to their doing so without royal licence). Inquests were held shortly after the abolition of ordeal (1215) in the court of the Abbot of St. Edmund. See Bracton’s Note Book, case 592.
Footnote 759:
See Pollock and Maitland, II. 586.
Footnote 760:
59 George III. c. 46.
Footnote 761:
The early history of habeas corpus is traced by Prof. Jenks in a learned and interesting article in the Law Quarterly Review, VIII. 164. The writ de odio was obsolete at a date prior to the invention of the habeas corpus.
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The opinion generally though erroneously held, is not without excuse; for the writ mentioned by Magna Carta, besides effecting its main purpose, was put to another and subsidiary use, which bears a superficial resemblance to that served by the habeas corpus of later centuries. Considerable delay might occur between the appellee’s petition for the writ of inquisition and the verdict upon it. In the interval, the man accused of murder had, in the normal case, no right to be released on bail, a privilege allowed to those suspected of less grave crimes. This was hard in cases where the accused was the victim of malice, or guilty only of justifiable homicide. Prisoners, placed in such a plight, might purchase from the Crown, always ready to accept fees in a worthy cause, royal writs which would save them from languishing for months or years in gaol. The writ best suited for this purpose was that de odio et atia, since it was already applicable to presumably innocent appellees for another purpose.[762]
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Footnote 762:
Cf. Brunner, Entstehung der Schwurgerichte, p. 471.
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As trial by combat became rapidly obsolete, the original purpose of the writ was forgotten, and its once subsidiary object became more prominent. Before Bracton’s day (possibly even before the date of Magna Carta) this change had taken place: the writ had come to be viewed primarily as an expedient for releasing upon bail homicides per infortunium or se defendendo. Bracton, in giving the form of the writ,[763] declares it to be iniquitous that innocent men accused of homicide should be long detained in prison; therefore, he tells us, an inquisition is wont to be made at the request of sorrowful friends—whether the accusation is bona fide or has been brought de odio et atia. This pleasing picture of a king moved to pity by the tearful friends of accused men scarcely applies to John, who listened only to suitors with long purses which they were ready to empty into his exchequer. The writs which liberated homicides had become a valuable source of revenue. Sheriffs were frequently reprimanded for releasing prisoners on bail without the king’s warrant, but, in spite of heavy amercements, they continued their irregularities, either through favour to individuals or in return for bribes. Thus, in 1207, Peter of Scudimore paid to the exchequer a fine of 10 marks for setting homicides free upon pledges, without warrant from the king or his justices.[764] In that year, John repeated his orders, strictly forbidding manslayers to be set free upon bail, unless by royal command, until they had received judgment in presence of the king’s justices.[765]
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Footnote 763:
See folio, 123.
Footnote 764:
See Pipe Roll, 8 John, cited Madox, I. 566.
Footnote 765:
See Rot. Pat., I. 76, cited Madox, I. 494. The date is 8 November, 1207.
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To John, then, the excessive and arbitrary fees to be received for this writ, constituted its greatest merit; whereas the barons claimed, as mere matter of justice, that it should be issued free of charge to all who needed it. John’s acceptance of their demands, contained in the present chapter, was repeated in all reissues, and apparently observed in practice. The procedure during the reign of Henry III. is described by Bracton in a passage already cited. After the writ de odio had been received, an inquest, he tells us, must be held speedily, and if the jury decided that the accusation had been made maliciously, or that the slaying had been committed in self-defence or by accident, the Crown was to be informed of this. Thereafter, from the chancery would be issued a second writ, the form of which is also given by Bracton (known in later days as the writ tradias in ballium) directing the sheriff, on the accused finding twelve good sureties of the county, to “deliver him in bail to those twelve” till the arrival of the justices. Such writs, however, if in one sense “freely” issued, had always to be paid for. A certain Reginald, son of Adam, when accused in 1222, offered one mark to the king for a verdict of the three neighbouring counties (it was a Lincolnshire plea), as to whether the accusation was made because of “the ill-will and hate” (per odium et atiam) which William de Ros, appellant’s lord, bore to Reginald’s father “vel per verum appellum.”[766]
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Footnote 766:
See Bracton’s Note Book, case 134, and cf. case 1548.
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A long series of later statutes enforced or modified this procedure. These have been interpreted to imply frequent changes of policy, sometimes abolishing and sometimes reintroducing the writ and the procedure which followed it.[767] This is a mistake; the various statutes wrought no radical change, but merely modified points of detail; sometimes seeking to prevent the release of the guilty on bail, and sometimes removing difficulties from the path of the innocent. The Statute of Westminster, I., for example, after a preamble which animadverted on the manner in which sheriffs impannelled juries favourable to the accused, provided that inquests “shall be taken by lawful men chosen out by oath (of whom two at the least shall be knights) which by no affinity with the prisoners nor otherwise are to be suspected.”[768] The Statute of Gloucester, on the other hand, ordered the strict confinement, pending trial, of offenders whose guilt was apparent.[769] The Statute of Westminster, II. once more favoured prisoners, providing by chapter 12 for the punishment of false appellants or accusers, and by chapter 29 that “lest the parties appealed or indicted be kept long in prison, they shall have a writ of odio et atia, like as it is declared in Magna Carta and other Statutes.”[770]
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Footnote 767:
Stephen, Hist. Crim. Law, I. 242 (following Foster, Crim. Cases, 284–5), considers that it was abolished by 6 Edward I., stat. 1, c. 9. Coke, Second Institute, 42, thought it was abolished by 28 Edward III. c. 9 (which, however, seems not to refer to this at all), and restored by 42 Edward III. c. 1 (abolishing all statutes contrary to Magna Carta). Coke, Ibid., and Hale, Pleas of the Crown, II. 148, considered that the writ was not obsolete in their day. Cf. Pollock and Maitland, II. 587, n.
Footnote 768:
3 Edward I. c. 11.
Footnote 769:
6 Edward I., stat. 1, c. 9.
Footnote 770:
13 Edward I. cc. 12 and 29.
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The writ in question was in use in the year 1314,[771] and seems never to have been expressly abolished, but to have sunk gradually into neglect, as appeals became obsolete and commissions of gaol delivery were more frequently held.
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Footnote 771:
See Rot. Parl., I. 323.
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IV. Later History of Appeal and Battle. The right of private accusation was restricted only, not abolished, by Henry II. and his successors. It could not be denied to any injured man, who was not suspected of abusing his right. Prosecutions in the king’s name by way of indictment and jury trial supplemented, without superseding, private prosecutions by way of appeal and battle. The danger of a second prosecution might hang over the head of an accused man after he had “stood his trial” and been honourably acquitted. It was unfair that he should be kept in such suspense for ever; and, accordingly, the Statute of Gloucester provided that the right of appeal should lapse unless exercised within year and day of the commission of the offence.[772] To ensure that the accused should escape all risk of a double prosecution for the same crime, it was necessary that the Crown should supplement the provisions of this act by delaying to prosecute until the year and day had expired. This rule was followed in 1482. Such immunity from arraignment at the king’s suit for the space of twelve months (combined with the provisions of the Statute of Gloucester) would undoubtedly have obviated the possibility of two trials for one offence; but it produced a worse evil of a different kind, by facilitating the escape of criminals from justice. After experience of its pernicious effects, this rule was condemned by the act of parliament which instituted the Star Chamber.[773]
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Footnote 772:
6 Edward I. c. 9. Appeals were extremely frequent towards the close of the Plantagenet period, especially in the days of “the Lords Appellant.” The proceedings which followed on appeal sometimes took place before the Court of the Constable and Marshal and sometimes before Parliament. In neither case were they popular. One of the charges brought against Richard II. by the Parliament which deposed him, was that “in violation of Magna Carta” (that is, probably, of chapter 39) persons maliciously accused of treasonable words were tried before the constable and marshal, and although they might be “old and weak, maimed or infirm,” yet compelled to fight against appellants “young, strong, and hearty.” See Rot. Parl., III. 420, cited Neilson, Trial by Combat, 193. On the other hand, the Statute 1 Henry IV. c. 14 provided that no appeals should in future be held before Parliament, but only before the Court of the Constable and Marshal.
Footnote 773:
See 3 Henry VII. c. 1, s. 11. This statute emphasized how the injured party, with the right of appeal, was “oftentimes slow and also agreed with, and by the end of the year all is forgotten, which is another occasion of murder.”
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This remedied the more recent evil, but revived the old injustice; the same statute enacted that acquittal should not bar the right of appeal of the wife or nearest heir of a murdered man. Thus, once again, a man declared innocent by a jury might find himself still exposed to a second prosecution. This unjust anomaly remained without formal redress until the nineteenth century; and in 1817 the British public was startled to find that a long-forgotten legal procedure of the dark ages still formed part of the law of England. The body of a Warwickshire girl, Mary Ashford, was discovered in a pit of water under circumstances which suggested foul play. Suspicion fell on Abraham Thornton, who had been in her company on the night when she disappeared. After indictment and trial at Warwick Assizes on a charge of rape and murder, he was acquitted. The girl’s eldest brother, William Ashford, was not satisfied by what was apparently a perfectly honest verdict. He tried to secure a second trial, and with this object claimed the ancient right of appeal of felony, which the judges did not see their way to refuse. Ashford’s attempt to revive this obsolete procedure was met by Thornton’s revival of its equally obsolete counterpart. Summoned before the judges of King’s Bench, he offered to defend himself by combat, throwing down as “wager of battle” a glove of approved antique pattern. The judges had to admit his legal right to defend himself against the appeal “by his body,” and Thornton thus successfully foiled the attempt to force him to a second trial, as the court never contemplated the possibility of a medieval judicial combat being actually fought in the nineteenth century. The appeal was withdrawn and the proceedings terminated.[774]
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Footnote 774:
See Ashford v. Thornton, 1 B. and Ald. 405-461.
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The unexpected revival of these legal curiosities of an earlier age led to their final suppression. In 1819 a Statute was passed abolishing proof by battle alike in criminal and in civil pleas; and the right of appeal fell with it.[775]
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Footnote 775:
See 59 George III. c. 46.
CHAPTER THIRTY-SEVEN.
Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium, et de alio terram teneat per servicium militare, nos non habebimus custodiam heredis nec terre sue que est de feodo alterius, occasione illius feodifirme, vel sokagii, vel burgagii; nec habebimus custodiam illius feodifirme, vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servicium militare. Nos non habebimus custodiam heredis vel terre alicujus, quam tenet de alio per servicium militare, occasione alicujus parve serjanterie quam tenet de nobis per servicium reddendi nobis cultellos, vel sagittas, vel hujusmodi.
If anyone holds of us by fee-farm, by socage, or by burgage, and holds also land of another lord by knight’s service, we will not (by reason of that fee-farm, socage, or burgage,) have the wardship of the heir, or of such land of his as is of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight’s service. We will not by reason of any petty serjeanty which anyone may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir or of the land which he holds of another lord by knight’s service.
By these provisions the Charter reverts once more to the subject of wardship, laying down three rules which will be better understood when their sequence is somewhat altered, the second being taken first.
(1) Ordinary wardship. The reason for claiming wardship from lands held in chivalry, namely, that a boy tenant could not perform military service, did not apply to fee-farm, to socage, or to burgage. There was much looseness of usage, however; and of this John took full advantage. The Charter stated the law explicitly; wardship was not due from any such holdings, except in the somewhat anomalous cases where lands in fee-farm expressly owed military service.[776] As petty serjeanties (although mentioned in the present chapter in a different connection) are not expressly said to share this exemption, it may be inferred that the barons admitted John’s wardship over them, just as in the case of great serjeanties. In Littleton’s time, the law had been changed. Petty serjeanties were then exempt.[777]
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Footnote 776:
Cf. supra, pp. 66-70, and 75-7.
Footnote 777:
II. viii. s. 158.
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(2) Prerogative wardship. When a tenant-in-chivalry died leaving two separate military fiefs held of different mesne lords, each of these lords enjoyed, during the minority, wardship over his own fief. This was perfectly fair to all parties; but if the ward held one estate of the Crown, and another of a mesne lord, the king claimed wardship over both; and that, too, even when the Crown fief was of small value.[778] Such rights were known as “prerogative wardship,” and thus limited, were in 1215 perfectly legal, however inequitable they may now seem.
Footnote 778:
Cf. Glanvill, VII. c. 10. “When any one holds of the king in capite the wardship over him belongs exclusively to the king, whether the heir has any other lords or not; because the king can have no equal, much less a superior.”
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(a) Fee-farm, socage, and burgage. John, however, pushed this right further, and exercised prerogative wardship over fiefs of mesne lords, not merely by occasion of Crown fiefs held in chivalry, but also by occasion of Crown fiefs held by any other free tenure. It was outrageous thus to claim prerogative wardship in respect of fee-farm, socage, or burgage lands, which were themselves exempt from ordinary wardship. John accordingly was made to promise amendment.[779]
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Footnote 779:
Glanvill, VII. c. 10, had laid it down that burgage tenure could not give rise to prerogative wardship.
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(b) Petty Serjeanties[780] were in a slightly different position. Although Magna Carta did not abolish the Crown’s rights of ordinary wardship over these, it forbade that that should form an occasion of prerogative wardship. The king might enjoy the custody of his own fief if he pleased, but not of the wider fiefs of others on that pretext.[781]
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Footnote 780:
See supra, p. 68.
Footnote 781:
See Bracton, folio 87 b. The Note Book, case 743, contains a good illustration. The motive for these restrictions was clearly to prevent injustice to mesne lords. It was probably, however, an indirect consequence of Magna Carta that a similar rule came to be applied where no mesne lord was injuriously affected. In 1231 a certain Ralf of Bradeley died who had held two separate freeholds of the Crown, (i) a small fee by petty serjeanty for which he rendered twenty arrows a year, and (ii) land of considerable value held in socage. The Crown took possession of both estates, on the assumption that the admitted right of wardship over the petty serjeanty brought with it a right of wardship over the socage lands also (although these would have been exempt if they had stood alone). The king sold his rights for 300 marks. Ralf’s widow claimed the wardship of the socage lands, on the ground that these were of much greater value than those held by serjeanty. Her argument was upheld, and the 300 marks were refunded by the exchequer to the disappointed purchaser. See Pipe Roll, 5 Henry III., cited Madox, I. 325-6.
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Prerogative wardship (even in the limited form admitted by Magna Carta) might involve a double hardship on the mesne lord deprived by it of the custody of his fief. Suppose that the common tenant held lands from a mesne lord on condition of, say, five knights’ service, in addition to his Crown fief. The king seized both fiefs on his death, nominally as a compensation for the loss of military service, which the minor heir could not render. Yet when a scutage ran the king demanded from the mesne lord payments in proportion to his full quota without allowing for the fees of five knights taken from him by prerogative wardship. This is no imaginary case. The barons in 1258 complained of the practice and demanded redress.[782]
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Footnote 782:
See Petition of the Barons, article 2 (Select Charters, 383). C. 53 of Magna Carta reverts to prerogative wardship, granting redress, although not summary redress, where John, or his father or brother, had illegally extended it by occasion of socage, etc. See also supra, p. 241.
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CHAPTER THIRTY-EIGHT.
Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc inductis.
No bailiff for the future shall put any man to his “law” upon his own mere word of mouth, without credible witnesses brought for this purpose.
The evident intention of this provision was to prevent irregularities at the critical stage of a trial, when the lex appointed by the court was attempted. This word lex, in its technical sense, may be correctly applied to any form of judicial test, such as compurgation, ordeal, or combat, the precise meaning required in each particular case being determined by the context.[783] In this passage of Magna Carta, it may be used in its widest connotation, but reasons will be immediately adduced for the belief that ordeal was specially present to the minds of those who framed it. Bailiffs, (the word is a wide one, including certainly the sheriffs and their underlings, and possibly also the stewards who presided in manorial courts)[784] had evidently been guilty of irregularities which public opinion of the day condemned. So much is clear: but authorities differ widely as to the exact nature of the abuse which is here prohibited.
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Footnote 783:
Dr. Stubbs (Const. Hist., I. 576) translates “lex” in this passage by “compurgation or ordeal.” Pollock and Maitland (II. 604, n.) explain that the word “does not necessarily point to unilateral ordeal; it may well stand for trial by battle.” Thayer (Evidence, 199–200) extends it even further, so as to embrace judicially appointed tests of every kind—battle, ordeal of fire or water, simple oath, oath with compurgators, charter, transaction witnesses, or sworn verdict. Bigelow (Placita Anglo-Normannica, 44) cites from Domesday Book cases where litigants offered proof omni lege or omnibus legibus, that is, in any way the court decided. Sometimes lex had a more restricted meaning; in the Customs of Newcastle-on-Tyne (Select Charters, 112) it seems to mean compurgation as opposed to combat.
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Footnote 784:
Cf supra, c. 24. Coke, Second Institute, p. 44, following the doubtful authority of the Mirror of Justices, extends it to all king’s justices and ministers. The unqualified “ballivus” of this passage should, perhaps, be contrasted with the “noster ballivus” of cc. 28 and 30.
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I. Probable Object of the Chapter. The key is supplied by the words of article 4 of the Assize of Clarendon, the provisions of which still regulated the Crown’s practice in criminal cases in the reign of John. That ordinance explains the procedure to be followed when robbers, murderers, or thieves, apprehended by the sheriffs upon indictment, were brought before the justices for trial: “and the sheriffs shall bring them before the justices; and with them they shall bring two lawful men of the hundred and of the village where they were apprehended, to bear the record of the county and of the hundred, as to why they had been apprehended; and, there, before the justices they shall make their law.” This “law” is elsewhere in the ordinance clearly identified with ordeal;[785] and the purport of the whole was that accused men could not be put to ordeal except in presence of two lawful men who had been present at the indictment and had come before the justices specially to bear witness thereof. In other words, the sheriff’s verbal report of the indictment “sine testibus fidelibus ad hoc inductis” was not sufficient. The “county” and the “hundred” which had accused the prisoner must send representatives to bear record of the facts.[786]
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Footnote 785:
See article 12 where “eat ad aquam” is contrasted with “non habeat legem” of article 13 (Select Charters, 144).
Footnote 786:
The “ad portandum recordationem comitatus et hundredi” of the ordinance is exactly opposed to the “simplex loquela sua” of the Charter.
The ordeal indeed was a solemn affair for which careful rules had been laid down. Every precaution was taken against the sheriff abusing his authority. His account of the indictment was checked by the presence of subordinate officials as well as of these members of the accusing jury. Moreover, lords of feudal courts, claiming this franchise, could only exercise it under royal warrant. Henry, the inventor of the system, sternly repressed all irregularities whether those of his own bailiffs or of the stewards of private lords.[787]
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Footnote 787:
Thus in 1166 (the year of the Assize of Clarendon) the “Soca” of Alverton was amerced because of a man placed “ad aquam sine serviente” (Pipe Roll, 12 Henry II., p. 49 of edition of Pipe Roll Society). In 1185 the “villata” of Preston paid 5 marks for putting a man “ad aquam sine waranto” (Pipe Roll, 31 Henry II., cited Madox, I. 547). In the same year a certain Roger owed half a mark for being present at an ordeal “sine visu servientum regis”: and heavy fines were exacted from those who had put a man “injuste ad aquam” (Ibid.). Apparently the bailiffs were sometimes described as the king’s serjeants and sometimes as the sheriff’s serjeants: the same Roll records fines for a man buried “sine visu servientum vicecomitis” and for a robber hanged “sine visu servientis regis” (Pipe Roll, 31 Henry II.).
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The same rules of procedure prevailed under John, who was less careful, however, than his father had been, to suppress irregularities. In Magna Carta he promised amendment. The presence of witnesses required by the Assize of Clarendon was once more insisted on as a check upon the capricious or unfair use of the ordeal. The Charter of 1216 repeated this provision without alteration. In 1217, however, a change occurred, which was undoubtedly a consequence of the virtual abolition of the ordeal by the Lateran Council in 1215. The framers of Henry’s second reissue, no longer so engrossed in pressing matters of state as they had been in the previous year, found leisure to adjust points of administrative detail. The simple reference to ordeal was inappropriate now that new forms of trial were taking its place. The justices, indeed, scarcely knew what test they should appoint, when ordeal had been forbidden. They seem sometimes to have resorted to compurgation and sometimes to battle; but the sworn verdict of neighbours was fast occupying the ground left vacant. The new Charter then made it clear that the provisions applied in 1215 to ordeal were to be extended to the other tests which were now being substituted for it. The “ad legem” of John’s Charter became in the new version “ad legem manifestam nec ad juramentum,” which might very well include battle and the decisions of jurors, as well as ordeal.[788]
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Footnote 788:
See Thayer, Evidence, 37, n. for a case of 1291, where “ad legem manifestam” can only mean trial by combat. The Statute of Westminster I. (3 Edward I. c. 12) described men refusing to put themselves on a jury’s verdict, “come ceaus qui refusent la commune ley de la terre.”
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II. Medieval Interpretations of the Passage. Ignorance of the exact nature of the abuse prohibited may well be excused at the present day, since it had become obscure within a century of the granting of the Charter. Some legal notes of the early fourteenth century, containing three alternative suggestions, have come down to us.[789]
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Footnote 789:
These appear as an appendix to the Year Book of 32-3 Edward I. (p. 516); but the handwriting is supposed to be of the reign of Edward II.
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(1) The first interpretation discussed, and apparently dismissed, in these notes, was that Magna Carta by this prohibition wished to ensure that no one should serve on a jury (in juratam) unless he had been warned by a timely summons. This far-fetched suggestion is clearly erroneous.
(2) The next hypothesis raised is that the clause prevented the defendant on a writ of debt (or any similar writ) from winning his case by his unsupported oath, where compurgators ought to have sworn along with him. Exception was, in this view, taken to the bailiff treating favoured defendants in civil pleas with unfair leniency.
(3) A third opinion is stated and eulogized as a better one, namely that the Charter prohibited bailiffs from showing undue favour to plaintiffs in civil pleas. The defendant on a writ of debt (or the like) should not, in this interpretation of Magna Carta, be compelled to go to proof at all (that is, to make his “law”) unless the plaintiff had brought “suit” against him (that is, had raised a presumption that the claim was good, by production of preliminary witnesses or by some recognized equivalent).[790] This last of the three interpretations thus suggested in the reign of Edward II. has its modern adherents, as will immediately be shown; but the discussion inaugurated in Plantagenet days has not yet received an authoritative settlement. It was discussed in the Court of Common Pleas so recently as 1700,[791] and historians at the present day differ as widely as do the lawyers.
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Footnote 790:
Cf. supra, pp. 101-2. The necessity for such “suit” was not legally abolished until 1852 (by Statute 15 and 16 Victoria, c. 76, s. 55). In 1343 it had been decided that the “suit” must be in existence, but need not be produced in court; and that if they did appear they could not be examined. See Thayer, Evidence, 13–15.
Footnote 791:
See City of London v. Wood, cited infra.
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III. Modern Interpretations of the Passage. No two of the recent authorities hold precisely similar opinions. Four views, at least, may be distinguished. (1) The provision is sometimes regarded as an attempt to prevent plaintiffs in civil suits from being treated with undue favour to the prejudice of defendants. A “suit” of witnesses (sectatores) had to be produced in court by the plaintiff before any “trial” (lex) could take place at all. Bailiffs were forbidden to allow, through slackness, favour, or bribery, this rule to be relaxed. This interpretation, which was adopted by the author of the Mirror of Justices, and by the writer of the notes appended to the Year Book already cited, found favour with Chief Justice Holt in 1700.[792]
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Footnote 792:
See City of London v. Wood (12 Modern Reports, 669). Holt held the clause of Magna Carta to mean that the plaintiff, unless he had his witnesses, could not put a defendant to his oath. Pollock and Maitland, II. 604, seem to concur, to the extent at least of counting this as one of the abuses condemned by c. 38: “The rule which required a suit of witnesses had been regarded as a valuable rule; in 1215 the barons demanded that no exception to it should be allowed in favour of royal officers.”
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(2) A second theory treats the clause as forbidding bailiffs (whether royal officers or manorial stewards) to use their authority to forward suits to which they happened to be parties. In certain circumstances, it would seem, the steward who presided as his master’s representative over the manorial court claimed the right to put a defendant to his proof, without first producing “suit” or its equivalent, a privilege, however, which he could exercise only once in every year. Royal bailiffs claimed this privilege, and that without any similar restrictions. One object of Magna Carta, in this view, was to reduce bailiffs to an equality with other litigants. No longer should their bare assertion enable them to dispense with the formalities which the court required from ordinary plaintiffs before putting their adversaries to the risk of “a law” or proof.[793]
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Footnote 793:
This reading is emphasized by Brunner, Entstehung der Schwurgerichte, 199-200.
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(3) In marked contrast to these two theories, which read Magna Carta as preventing undue favour to plaintiffs, comes a third which regards it as forbidding undue favour to defendants. The Crown, it is pointed out, favoured Jews against Christians with whom they went to law. The Hebrew defendant in a civil suit “might purge himself by his bare oath on the Pentateuch, whereas in a similar case a Christian, as the law then stood, might be required to wage his law twelve-handed—i.e. with eleven compurgators.”[794] Magna Carta, it has been suggested, struck at this preferential treatment of Jewish litigants, trebly hated as aliens, capitalists, and rejectors of Christ. If so, the attempt failed; for in 1275 a certain Hebrew, named Abraham, was allowed “to make his law single-handed on his Book of the Jewish Law” in face of the plaintiff’s protest that this was contrary to the custom of the realm.[795]
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Footnote 794:
See J. M. Rigg’s admirable preface to Sel. Pleas from Rolls of Jewish Exchequer, p. xii., and cf. supra, c. 10.
Footnote 795:
See Ibid., p. 89, where the case is cited.
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(4) A fourth theory reads the chapter as a prohibition of undue severity in criminal prosecutions. A formal indictment by the accusing jury must always precede the “trial.” No bailiff ought to put anyone to the water or the red-hot iron upon suspicion, or private information.[796] Much may be said for this interpretation so far as it goes; but the Assize of Clarendon and Magna Carta agree in demanding something more. It was not enough that indictment should precede ordeal; they required that some members of the presenting jury who had made the accusation at the first diet should accompany the sheriff before the justices at the final diet, there to bear testimony both as to the nature of the crime and as to the fact of the indictment. Before anyone could be put “to his law,” the sheriff’s verbal report must be corroborated by the testimony of representative jurors.
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Footnote 796:
This reading is supported by Pollock and Maitland, I. 130, n. There is no necessary inconsistency between the view here cited, and that already cited from Ibid. II. 604. The same clause of Magna Carta may have been aimed at irregularities of two kinds, in civil and criminal pleas respectively.
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CHAPTER THIRTY-NINE.
Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terre.
No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him,[797] unless by the lawful judgment of his peers and by the law of the land.
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Footnote 797:
The corresponding provision of the Articles of the Barons (29) adds the word “vi” (“nec rex eat vel mittat super eum vi”). The idea of open violence, thus clearly indicated, is expressed in contemporary documents by the fuller phrase, per vim et arma. The accepted translation, as contained in the Statutes at Large, “nor will we pass upon him nor condemn him,” is thus inadequate. The editors of the Statutes of the Realm, I. 117, suggest “deal with him” as an alternative translation. Coke, it will be seen infra, is the original source of the error which connects this “going” and “sending” with legal process.
This chapter occupies a prominent place in law-books, and is of considerable importance, although there are reasons for holding that its value has been grossly exaggerated.
I. Its Main Object. It has been usual to read it as containing a guarantee of trial by jury to all Englishmen; as absolutely prohibiting arbitrary commitment; and as undertaking solemnly to dispense to all and sundry an equal justice, full, free, and speedy.[798] The traditional interpretation has thus made it, in the widest terms, a promise of law and liberty, and good government to every one.[799] A careful analysis of the words of the clause, read in connection with its historical genesis, suggests the need for modifications of this view. It was in accord with the practical genius of this great document that it should direct its energies, not to the enunciation of vague platitudes and well-sounding generalities, but to the reform of a specific and clearly defined group of abuses. Its main object was to prohibit John from resorting to what is sometimes whimsically known in Scotland as “Jeddart justice.”[800] It forbade him for the future to place execution before judgment. Three aspects of this prohibition may be emphasized.
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Footnote 798:
See, e.g., Coke, Second Institute, 55.
Footnote 799:
Thus Blackstone, Commentaries, IV. 424: “It protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land.” Hallam, Middle Ages, II. 448, speaking of cc. 39 and 40 together, says they “protect the personal liberty and property of all freemen by giving security from arbitrary imprisonment and arbitrary spoliation.” Creasy, English Constitution, p. 151, n.: “The ultimate effect of this chapter was to give and to guarantee full protection for person and property to every human being that breathes English air.”
Footnote 800:
The same grim tradition applied to Lidford as to Jedburgh:
“I oft have heard of Lydford law, How in the morn they hang and draw, And sit in judgment after.”
See Neilson, Trial by Combat, 131, and authorities there cited.
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(1) Judgment must precede execution. In some isolated cases, happily not numerous, John proceeded, or threatened to proceed, by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.[801] Complaint was made of arrests and imprisonments suffered “without judgment” (absque judicio); and these are the very words used in the "unknown charter"—“Concedit Rex Johannes quod non capiet homines absque judicio.”[802] Both the Articles of the Barons and Magna Carta expand this phrase. Absque judicio becomes nisi per legale judicium parium suorum vel per legem terre, thus guarding, not merely against the more obvious evil—execution without judgment—but also against John’s subtler device for attacking his enemies by a travesty of judicial process. The Charter asks not only for a “judgment,” but for a “judgment of peers” and “according to the law of the land.” Two species of irregularities were condemned by these words; and these will be explained in the two following subsections.
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Footnote 801:
Mr. Bigelow considers that such cases were numerous. See Procedure, 155: “The practice of granting writs of execution without trial in the courts appears to have been common.”
Footnote 802:
See Appendix.
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(2) Per judicium parium: every judgment must be delivered by the accused man’s “equals.” The need for “a judgment of peers” was recognized at an early date in England.[803] It was not originally a class privilege of the aristocracy, but a right shared by all grades of freeholders; whatever their rank they could not be tried by their inferiors.[804] In this respect English custom did not differ from the procedure prescribed by feudal usage on the Continent of Europe.[805] Two applications of this general principle had, however, special interest for the framers of Magna Carta: the “peers” of a Crown tenant were his fellow Crown tenants, who would normally deliver judgment in the Curia Regis; while the “peers” of the tenant of a mesne lord were the other freeholding tenants assembled in the Court Baron of the manor. In either case judgments were given per pares curiae, who decided what “test” should be appointed, who thereafter sat as umpires while their accused “peer” carried this through to success or failure, and who finally pronounced a sentence in accordance with the result. Crown tenants and under-tenants alike complained that they were deprived by John of the only safeguard they could trust, the judgment of a full court of Englishmen of their own rank, who presumably, therefore, had no undue bias towards conviction. John, not here an innovator, but merely resorting wholesale to practices used sparingly and with prudence in earlier reigns, had set these rights openly at defiance. His political and personal enemies were frequently exiled, or deprived of their estates, by the judgment of a tribunal composed entirely of Crown nominees ready to give any sentence which John might dictate. Magna Carta promised a return to the recognized ancient practice. No freeman should henceforth suffer in person or in property as the result of a judgment by the professional judges forming the bench of Common Pleas, or the other bench known as coram rege. This was to abolish not merely the abuses of John, but the system of Henry II., which he abused.
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Footnote 803:
The earliest known reference occurs in the so-called Leges Henrici primi (c. 31). Unusquisque per pares suos judicandus est et ejusdem provinciae.
Footnote 804:
Cf. Pollock and Maitland, I. 152, and authority cited. As there was no “peerage” in England in the modern sense (cf. supra, p. 237) until long after John’s reign, it is obvious that the judicium parium of Magna Carta must be interpreted in a broader sense than any mere “privilege of a peer” at the present day. Every man’s equals were his “peers.”
Footnote 805:
See Stubbs, Const. Hist., I. 578, n., for foreign examples of judicium parium.
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The varied meanings conveyed by the word “peers” to a medieval mind, together with the nature of judicium parium, may be further illustrated by the special rules applicable to four exceptional classes of individuals:—(a) all Jews of England and Normandy enjoyed under John’s charter of 10th April, 1201, the right to have complaints against them judged by men of their own race. For them a judicium parium was a judgment of Jews.[806] (b) A foreign merchant, by later statutes, obtained the right to a special form of judicium parium—to a jury of the “half tongue” (de medietate linguae), composed partly of aliens of his own country.[807] (c) The peers of a Welshman seem, in some disputes with the Crown, to have been men drawn from the marches, and therefore unlikely to side entirely either with the English or with the Welsh point of view. Such at least is the most plausible interpretation of the phrase “in marchia per judicium parium suorum,” occurring in later chapters of Magna Carta, and granting to the Welsh redress of wrongful disseisins.[808] (d) A Lord Marcher occupied a peculiar position, enjoying rights denied to barons whose estates lay in more settled parts of England. In 1281 the Earl of Gloucester, accused by Edward I. of a breach of allegiance, claimed to be judged, not by the whole body of Crown tenants, but by such as were, like himself, lords marchers.[809] These illustrations show that a “trial by peers” had a wider and less stereotyped meaning in the Middle Ages than it has at the present day.[810]
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Footnote 806:
“If a Christian bring a complaint against a Jew, let it be adjudged by his peers of the Jews.” See Rot. Chartarum, p. 93, and supra p. 269.
Footnote 807:
See Carta Mercatoria, c. 8; 27 Edward III. stat. 2, c. 8; and 28 Edward III. c. 13; also Thayer, Evidence, p. 94.
Footnote 808:
See infra, cc. 56, 57, and 58. Under c. 59 the barons of England were called peers of the King of Scots.
Footnote 809:
See Placitorum Abbreviatio, p. 201, cited Pollock and Maitland, I. 393 n.
Footnote 810:
See also a passage in the Scots Acts of Parliament (I. 318) attributed to David: “No man shall be judged by his inferior who is not his peer; the earl shall be judged by the earl, the baron by the baron, the vavassor by the vavassor, the burgess by the burgess; but an inferior may be judged by a superior.”
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(3) Per legem terrae. No freeman could be punished except in accordance with the law of England. These often-quoted words were used in Magna Carta with special though not perhaps exclusive reference to the narrow technical meaning of “lex” which was so prominent in 1215 and which has been already explained.[811] The Great Charter promised that no plea, civil or criminal, should henceforth be decided against any freeman until he had failed in the customary "proof"—whether battle, or ordeal, or otherwise.[812]
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Footnote 811:
See supra, p. 103, and cc. 18, 36, and 38.
Footnote 812:
See Thayer, Evidence, 200–1, for a discussion of the phrase “lex terrae.” See also Bigelow, History of Procedure, 155, n.: “The expression ‘per legem terrae’ simply required judicial proceedings, according to the nature of the case; the duel, ordeal, or compurgation, in criminal cases, the duel, witnesses, charters, or recognition in property cases.” The words occur at least twice in Glanvill, each time apparently with the technical meaning. In II. c. 19, the penalty for a false verdict includes forfeiture by jurors of their law (“legem terrae amittentes”); while in V. c. 5, a man born a villein, though freed by his lord, cannot, to the prejudice of any stranger, wage his law (“ad aliquam legem terrae faciendam”). The stress placed on the accused’s right to the time-honoured forms of lex is well illustrated by the difficulty of substituting jury trial for ordeal. It has already been shown that the right of “standing mute,” that is, virtually, of demanding ordeal, was only abolished in 1772. See supra, p. 400. Five and a half centuries were thus allowed to pass before the criminal law was bold enough, in defiance of a fundamental principle of Magna Carta, to deprive accused men of their “law.”
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This older, more technical signification was gradually forgotten, and “the law of the land” became the vague and somewhat meaningless phrase of the popular speech of to-day. It was only natural that this change of meaning should be reflected in subsequent statutes reaffirming, expanding, or explaining Magna Carta. An important series of these, passed in the reigns of Edward III. and Richard II., shows how the per legem terrae of 1215 was read in the fourteenth century as equivalent to the wider expression “by due process of law,” and how the Great Charter was interpreted as prohibiting the trial of men for their lives and limbs before the King’s Council on mere informal and irresponsible suggestions, sometimes made loosely or from malicious and interested motives.[813]
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Footnote 813:
It would seem, however, from the words of these statutes that for this purpose the provisions of chapters 36 and 38 were used to supplement those of the present chapter, if they were not confused with them. See 5 Edward III. c. 9; 25 Edward III. stat. 5, c. 4; 37 Edward III. c. 18; 38 Edward III. c. 3; 42 Edward III. c. 3; 17 Richard II. c. 6. See also Stubbs, Const. Hist., II. 637-9, for the series of petitions beginning with 1351.
The Act of 1352, for example, after reciting the provision of Magna Carta at present under discussion, insisted on the necessity of “indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done.” Coke,[814] founding apparently on the terms of these fourteenth-century statutes, makes “per legem terrae” of the Charter equivalent to “by due process of law” and that again to “by indictment or presentment of good and lawful men,” thus finding the grand jury enshrined in Magna Carta. The framers of the Petition of Right[815] read the same words as a prohibition, not only of imprisonment “without any cause showed” but also of proceedings under martial law, thus interpreting the aims of King John’s opponents in the light of the misdeeds of King Charles, and applying to the rude system established by Henry of Anjou reforms more appropriate to the highly developed administration of the Tudors.
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Footnote 814:
Second Institute, p. 46.
Footnote 815:
3 Charles I. c. 1.
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These glosses must be discarded; the words of John’s Charter promised a threefold security to all the freemen of England. Their persons and property were protected from the king’s arbitrary will by the rule that execution should be preceded by a judgment—by a judgment of peers—by a judgment according to the appropriate time-honoured “test,” battle, compurgation, or ordeal.
(4) The meaning of “vel.” The peculiar use of the word “vel” introduced an unfortunate element of ambiguity. No proceedings were to take place "without lawful judgment of peers or by the law of the land"—“or” thus occurring where “and” might naturally be expected. Authorities on medieval Latin are agreed, however, that “vel” is sometimes equivalent to et.[816] Comparison with the terms of chapter 52 and with those of the corresponding Article of the Barons places the matter almost beyond doubt. The 25th of the Articles of the Barons had provided that all men disseised by Henry or Richard should “have right without delay by judgment of their peers in the king’s court,” giving no hint of any possible alternative to judicium parium. Chapter 52 of the Charter, in supplementing the present chapter, describes the evils complained of in both as acts of disseisin or outlawry by the king “sine legale judicio parium suorum,” leaving no room for ambiguity.
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Footnote 816:
Pollock and Maitland, I. 152, n., read the word as having both meanings in this passage. Cf. Gneist, Engl. Const., chapter xviii. Mr. Pike, House of Lords, 170, takes an opposite view: “King John bound himself in such a manner as to show that judgment of peers was one thing, the law of the land another. The judgment of peers was ... a very simple matter and well understood at the time. The law of the land included all legal proceedings, civil or criminal, other than the judgment of peers.” The present writer rejects this antithesis, because the two things may be, and indeed must be, combined. The “trial” by a law and the “judgment” by equals were complementary of each other. The peers appointed the test and decided whether it had been properly fulfilled.
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II. The Scope of the Protection afforded. The object of the barons was to protect themselves and their friends against the king, not to set forth a scientific system of jurisprudence: the judicium parium was interposed as a barrier against prosecutions instituted by the king, not against appeals of private individuals. Pleas following upon accusations by the injured party were held in 1471 not to fall within the words of Magna Carta.[817] This was a serious limitation; but as against the Crown the scope of the protection afforded by the Great Charter was very wide indeed. Care was taken that the three-fold safeguard should cover every form of abuse likely to be practised by John.
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Footnote 817:
See, e.g., Pike, House of Lords, 217, citing Littleton in Year Book, Easter, 10 Edward IV., No. 17, fo. 6.
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(1) Capiatur vel imprisonetur. If these two words were literally interpreted, and the provision they embody strictly enforced, all orderly government would be at an end. When a crime has been committed, the offender must be arrested and provisionally detained, without waiting for any judgment, whether of peers or otherwise. A man accused of crime may, indeed, justly demand three things: a trial before condemnation, that the trial be not too long delayed, and that under some circumstances he should be meanwhile released on bail. Magna Carta goes further, promising complete exemption from arrest until judgment had been passed upon him. Here the barons extorted a wider concession than could possibly be enforced. Their excess of caution had led them to use a loose and dangerously wide phrase, which ought not to be too literally interpreted.[818]
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Footnote 818:
If “vel” might be translated by “and” and “imprisonetur” by “detained in gaol,” the phrase would then mean that no freeman should be kept too long in prison pending his trial, or permanently imprisoned without trial.
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(2) Aut disseisiatur. Avarice was one of the most frequent motives of John’s oppressions: the whole machinery of justice was valued primarily as an engine for transferring land and money to his treasury. Crown tenants frequently found their estates appropriated by the Crown as escheats. That this was one of their grievances to which the barons attached supreme importance is shown in many ways: by the care taken in the 25th of the Articles of the Barons and in chapter 52 of the Charter to provide procedure for restoring to their rightful owners estates of which they had been improperly “disseised,”[819] and by the terms of certain writs issued by John after the treaty at Runnymede, for example the letter of 19th June to his half-brother, the Earl of Salisbury, explaining that peace had been made on condition of the immediate restoration of all “lands, castles, and franchises from which we have caused any one to be disseised injuste et sine judicio.”[820]
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Footnote 819:
For this word cf. supra, c. 18. The treaty entered into by John in 1191 (discussed infra) speaks of the “disseisin of chattels,” showing that the word had not yet been absolutely restricted to real estate.
Footnote 820:
See Rot. Claus., I. 215. Mr. Pike (House of Lords, p. 170) maintains, indeed, that the prevention of disseisins “sine judicio” was the chief, if not the sole, object of the chapter under discussion:—“The judgment of peers had reference chiefly to the right of landholders to their lands, or to some matters connected with feudal tenure and its incidents.” This goes too far: the barons by no means confined the safeguard afforded by the judicium parium to questions of land and land-tenure. Pollock and Maitland, I. 393, countenance a broader interpretation. One point is beyond doubt: judicium parium extended to the assessing of amercements. In c. 21 earls and barons are confirmed in the right to be amerced only per pares suos.