the words already referred to (supra, p. 131) were added, apparently for the sake of greater accuracy; and, probably as a concession to the old feudal party, who regarded with dislike all extension of the central royal jurisdiction, the assizes of the itinerant justices were reduced from four to one annually; and the direction for the election by each county of four knights to take the recognitions is omitted, the knights of the county generally being substituted. clauses: of land. In addition to the 46th, the other new clauses in Henry's New second charter are the 39th, 42nd, 43rd, 44th, and 47th. By clause 39 land was forbidden to be aliened by gift or sale, Alienation unless sufficient were retained to answer for the services due to the superior lord of the fee.1 The 42nd directs that County the county court shall be holden but from month to month, the sheriff's tourn but twice in the year, and the view Sheriff's of frankpledge at Michaelmas; regulations probably dic- Tourn. tated by the jealousy of the feudal lords exercising local pledges. franchises. Court. Frank The 43rd restrains fraudulent gifts in mortmain to reli- Mortmain. gious corporations: 'It shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again to hold of the same house; nor shall it be lawful to any religious house to take the lands of any, and to leave the same to him of whom he received it. If any from henceforth give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee.' 2 1 This prohibition applied both to tenants in capite and to tenants of mesne lords. It was doubted whether tenants in capite could aliene any part of their lands without the royal licence, but by statute 1st Edward III. c. 12, it was declared that the king should not hold such lands as forfeit, but that a reasonable fine should be paid into the Chancery. With regard to tenants of mesne lords, this prohibition of Magna Charta was repealed by the statute Quia Emptores, 18th Edward I., which put a stop to sub-infeudation and gave free liberty of alienation in whole or in part, with reservation of the services to the superior lord of the fee. Supra, p. 64. The term mortmain, in mortua manu, applies generally to alienations of Mortmain. lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal; but it is used specially with reference to religious houses, whose enormous acquisitions of landed property and subtle evasions of the law gave rise to a series of restraining enactments. The earlier measures seem to have been specially directed against the fraud so frequently committed upon the feudal Scutage. The 44th clause asserts the King's right to scutage ‘sicut capi consuevit tempore Henrici regis avi nostri ;' and the Castles to be 47th directs the immediate destruction of the 'castra aduldemolished. terina' (a phrase forcibly recalling the disorders of Stephen's reign), either erected or rebuilt since the commencement of the barons' war. Henry III.'s In the 9th year of his reign, Henry, who was now declared of age, re-issued Magna Charta and the Charter of the Forest, in consideration of the grant of an aid of a 'fifteenth.' They contained only two alterations of importance: (1) In the preamble, the words 'spontanea et bona voluntate nostra' were substituted for the 'consilio;' a change which, though capable of being interpreted as an assertion on the King's part of his independence of the counsel of his baronage, was, with greater probability, intended to obviate any subsequent evasion by him on the ground that his former charters, having been granted by others in his name during his minority, were no longer binding on himself.1 (2) A final clause was added specifying the grant of the 'fifteenth' as the price of the king's concession: And for this our gift and grant of these liberties and of other liberties contained in our charter of liberties of the forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and all our subjects have given unto us the fifteenth part of all their moveables. And we have granted unto them for us and our heirs that neither we nor our heirs shall procure or do lords by pretended and colourable donations to religious houses with the intention of receiving the lands back again freed from the feudal obligations. Henry II. endeavoured to check this abuse by exacting scutage and the other feudal dues from the lands held in chief by the clergy (Const. of Clarendon, c. xi.); and the present clause of the Great Charter seems to refer to fraudulent as opposed to innocent alienations. But its effect, as expounded in the following reign by the Statute de Religiosis, 7th Edward I., was to prohibit gifts of land to religious houses generally-i.e., even in cases where the religious house did not give the land back to hold of the house, but kept it in its own hands. The clerical evasions of this statute were successively and at length effectually met by the 13th Edward I. (Westminster II.) and the 15th Richard II. c.5.—Coke, 2 Inst. 74; Reeves (ed. Finlason), i. 274. [Creasy, Eng. Const. ch. xi.-ED.] 1 Post multas vero sententiarum revolutiones, communiter placuit, quod rex tam populo quam plebi libertates, prius ab eo puero concessas, jam major factus indulsit.—Ann. Dunstapl. p. 93, A.D. 1225; Select Chart. 314. anything whereby the liberties in this charter contained may be infringed or broken; and if anything be procured by any person contrary to the premises, it shall be had of no force nor effect.' 1 confirm 1 It is in the form in which it was promulgated in the Subsequent 9th Henry III. that Magna Charta was confirmed by tions of the Edward I. in the twenty-fifth year of his reign. The Charter. copy which heads our statute book is taken from an Inspeximus of the Charter, so called from the letters patent prefixed in the name of Edward I., Inspeximus Magnam Chartam domini Henrici quondam regis Angliae patris nostri de libertatibus Angliae in haec verba. Regarding the Charter as the palladium of the nation's liberties, the people for centuries were ever ready to purchase its confirmation from successive kings by the grant of a liberal subsidy. In this way it was solemnly confirmed no less than thirty-seven times down to the second year of Henry VI.2 Henry VI. 'To have produced it,' remarks Sir James Mackintosh, to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtue which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice, if indeed it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers.' (Hist. Eng. i. 221.) [Lingard, iii. p. 58 (ed. 1837), counts the confirmations as thirty-eight, ascribing fifteen to Edward III., instead of fourteen, as here reckoned.] · [I have left the text as it stood, on the homage by John, only altering Pandulf's title from Legate to Envoy, as I see no proof that he was Legate in 1215, and he is not so described in Magna Charta. I should not myself admit that in the Middle Ages any disgrace attached to holding of the Roman See any more than to holding of the Roman Empire. But John's character gave the submission a different aspect from that which it might have borne under another king.-Ed.] 146 The King tration. CHAPTER V. ADMINISTRATIVE SYSTEM UNDER THE NORMAN AND AT the head of the whole administrative system was the personally King himself, personally taking part not only in legislation took part in all branches but in fiscal, judicial, and every other kind of executive of adminis business. It was not till long after the Conquest that the kings of the English ceased, occasionally at least, to attend and take part in the proceedings of their courts of law. Henry II. was accustomed to assist in dispensing justice both in the Curia Regis and in its financial committee the Exchequer. Some of his sayings on the judgment seat have been preserved. In a case tried before him, shortly after his accession to the throne in 1154, the defendant alleged that a charter of Henry I. produced in evidence had been improperly obtained. 'Per oculos Dei, exclaimed the King, taking the Charter into his own hands, ' si cartam hanc falsam comprobare posses, lucrum mille librarum mihi in Anglia conferres.'s In another case, a dispute be A trial before 1 The Norman period, comprising the reigns of the Conqueror and his three successors, was 'the epoch of the growth of a new administrative system, having the source of its strength in the royal power. Under the new system, it is from the person, the household, the court, and the council of the king that all constitutional power radiates; and in very many respects both the machinery and the terminology of government bear, down to the present day, marks of their origin in the domestic service of the palace.'-Stubbs, Const. Hist. i. 337, 338. 2 Domini Regis Curia, in qua ipse in propria persona jura decernit. Dial. de Scac. i. c. 4. 3 Walter, Abbot of St. Martin of Battle v. Gilbert de Balliol (Chron. MonasHenry II. in terii de Bello, 106; Bigelow's Placita Anglo-Normannica, 175). This case is ferson interesting for the light which it throws alike on the working of the feudal tenures, the system of judicature, and the social aspects of the 12th century. tween Baldwin, Archbishop of Canterbury and the Abbot of St. Edmund as to a territorial franchise, we are told that the King, puzzled by the production of conflicting charters, declared 'Nescio quid dicam: nisi ut cartae ad invicem pugnent. And when the Archbishop subsequently refused to accept the Abbot's offer to submit the dispute to the verdict of the counties of Norfolk and Suffolk, the King angrily arose and left the court, saying, 'Qui potest capere capiat.1 King John personally decided a case in The Abbot of St. Martin had acquired certain lands, partly by purchase and partly by gift, from a sub-tenant of the Manor of Barnhorn, with the consent of Withelard de Balliol, who held the same of the Count of Eu: and the donation had been confirmed by the Count and by the King (Henry I.). Withelard afterwards disseised the Abbot for refusing exactions,' and no restitution was obtainable either during the remainder of Henry I.'s reign, or under Stephen, in whose time justice was little regarded, and he who was strongest got most.' On the accession of Hen. II. 'qui avita tempora renovaret,' Abbot Walter renewed his claim against Gilbert de Balliol, the heir of Withelard, and the King grants a writ to John, Count of Eu, commanding him, personally or by the Sheriff of Sussex, to do justice to the Abbot. The defendant manages by various subterfuges to evade the trial; and at length the plaintiff, with much difficulty, gets the suit called up into the Curia Regis. But the King is unable to attend personally, and the cause, though much litigated before the king's Justices, is brought to no satisfactory conclusion. Ultimately the suit comes before the King himself at Clarendon. The Abbot's case is stated by Osmund a monk of Battle, and Peter de Chriel, a knight, and the deeds of purchase and donation and the charters of confirmation are read in Court. The defendant objects that the deeds of his ancestors have no seal. Thereupon Richard de Lucy, the chief justice (who was also, we are told, the Abbot's brother), asks whether the objector himself has a seal, and on receiving an affirmative reply, sneers at the modern custom for every little knight to have a seal, and overrules the objection. (Moris,' inquit, antiquitus non erat quemlibet militulum sigillum habere, quod regibus et praecipuis tantum competit personis, nec antiquorum temporibus homines ut nunc causidicos vel incredulos malitia reddebat.') Undismayed, Gilbert proceeds to question the confirmatory charter of Henry I.; whereupon the King interposes with the exclamation 'Per oculos Dei,' given in the text, and adds: 'Si monachi per similem cartam et confirmationem hujusmodi jus in praesenti loco scilicet Clarendona, quem plurimum diligo, se habere possent ostendere, nihil esset in quo eis juste possem contradicere, quo minus eis omnino dimitteretur.' Then turning to the Abbot and his advocates, Ite," inquit, "et consilio habito, invicem conferte, si forte sit aliquid cui amplius quam huic cartae velitis inniti. Non tamen vos puto ad praesens aliam quaesituros probationem.' After this expression of opinion from the Court, it is not surprising that the Abbot, though he retired in obedience to the royal command, quickly returned and expressed his intention to produce no further proof but to take his stand upon the charter. Judgment is given for the plaintiff, unanimi consensu totius curiae,' followed by a king's writ ‘ad quatuor milites qui tunc ex ejus praecepto vicecomitatum Suthsexiae regebant,' directing them to ascertain the boundaries of the lands in question, by the oaths of twelve men of the vicinage, and then to reinstate the plaintiff. Which was accordingly done by Richard de Chaaines, one of the four knights, 'sociorum suorum sibi vice commissa.' 1 Archbishop of Canterbury v. Abbot of St. Edmund. Circa A.D. 1186. 6.66 |