II. _Keeping and Trying Criminal Pleas.__Magna Carta: A Commentary on the Great Charter of King John With an Historical Introduction

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]

-----

Footnote 634:

See _Forma procedendi in placitis coronae regis_, cc. 20 and 21, cited

in _Sel. Charters_, 260.

-----

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]

-----

Footnote 635:

_Ibid._, c. 21.

-----

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]

-----

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).

-----

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.

-----

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.

-----

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]

-----

Footnote 640:

See Coke, _Second Institute_, 30, and authorities there cited.

Footnote 641:

For explanation of these terms, see _supra_, c. 18.

-----

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]

-----

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.

-----

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]

-----

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.

-----

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]

-----

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.

-----

Footnote 651:

Cf. _supra_, pp. 17-20.

-----

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]

-----

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.

-----

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.

-----

Footnote 654:

See H. B. Simpson in _English Historical Review_, X. 625, and

authorities there cited.

-----

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]

-----

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.”

-----

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]

-----

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.

-----

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.

-----

Footnote 660:

Statute of Westminster, I. c. 10.

-----

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.

-----

Footnote 661:

Cf. Coke, _Second Institute_, 31, “In case when any man come to

violent or untimely death, _super visum corporis_.”

-----

(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]

-----

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]

-----

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.

-----

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]

-----

Footnote 666:

Cf. _supra_, pp. 278-80.

-----

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.

-----

Footnote 667:

Cf. the use of the phrase “a liquid debt” in Scots law.

-----

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.

-----

Footnote 668:

Cf. what is there said of the sheriff’s oppressions and the attempts

made to put an end to them.

-----

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.

-----

Footnote 669:

The subject is exhaustively discussed by Pollock and Maitland, II.

312-353.

Footnote 670:

See Pollock and Maitland, II. 324.

-----

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.

-----

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.

-----

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]

-----

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.

-----

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]

-----

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.

-----

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]

-----

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.)

-----

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.

-----

Footnote 679:

Cf. Pollock and Maitland, II. 355. “This clause, though it was

deliberately withdrawn, seems to have settled the law.”

-----

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]

-----

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.

-----

Footnote 681:

See Blackstone, _Commentaries_, I. 287, for an often-quoted definition

of purveyance.

-----

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.

-----

Footnote 682:

3 Edward I. c. 32.

Footnote 683:

12 Charles II. c. 24, ss. 11-12.

Footnote 684:

13 Charles II. c. 8.

-----

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]

-----

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.

-----

(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]

-----

Footnote 686:

For details, see under cc. 30 and 31.

-----

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.

-----

Footnote 687:

Hallam, _Middle Ages_, III. 221.

-----

(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]

-----

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]

-----

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.

-----

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.

-----

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]

-----

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.

-----

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."

-----

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]

-----

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]

-----

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.

-----

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.

-----

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.

-----

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]

-----

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.

-----

(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]

-----

Footnote 706:

Madox. I. 344-8, cites from the _Pipe Rolls_ many examples.

-----

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]

-----

Footnote 707:

This case is cited by Madox, I. 347, from 18 Edward I.

-----

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]

-----

Footnote 708:

_Supra_, p. 108.

Footnote 709:

See Bracton, II. _folio_ 123, and _folio_ 137.

-----

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]

-----

Footnote 710:

_Pipe Roll_, 2 John, cited Madox, I. 348.

-----

(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]

-----

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.

-----

(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]

-----

Footnote 714:

This fiction of corrupt blood was apparently based in part on a false

derivation of the word “attainder.” See _Oxford English Dictionary_.

-----

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.

-----

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]

-----

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.

-----

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.

-----

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]

-----

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.

-----

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]

-----

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.

-----

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]

-----

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.

-----

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.

-----

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.

-----

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.

-----

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]

-----

Footnote 725:

Cf. Stubbs, _Const. Hist._, I. 576.

-----

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]

-----

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.

-----

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.

-----

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.

-----

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]

-----

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.

-----

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]

-----

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]

-----

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.

-----

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]

-----

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]

-----

Footnote 737:

R. Hoveden, IV. 33-4.

-----

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.”

-----

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.

-----

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.

-----

Magna Carta: A Commentary on the Great Charter of King John With an Historical Introduction · 第 9 / 13 章

II. _Keeping and Trying Criminal Pleas._ The machinery for bringing