Front Page Titles (by Subject) CHAPTER TWENTY–FOUR. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
Return to Title Page for Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER TWENTY–FOUR. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
About Liberty Fund:
The text is in the public domain.
Fair use statement:
Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, teneant placita corone nostre.
No sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our Crown.
The main object of this provision is not open to doubt: men accused of crimes must be tried before the King’s judges and not by local magistrates of whatsoever kind. Innocent men dreaded the jurisdiction of the local tyrants whose harshness had earned widespread hatred. The sheriffs and castellans deserved their bad repute: the records of the age overflow with tales of their cruelties and oppressions. It ought not to be forgotten, however, that if this chapter contains a condemnation of the local administration of justice, it testifies to the comparative purity of the justice dispensed by the King’s own judges. So far there is no difficulty; but differences of opinion exist as to certain points of detail.
Pleas of the Crown.
Pleas were royal or common according as the interests of the Crown were or were not involved. This classification has already been discussed in connection with chapter 17. The present chapter concerns itself only with “pleas of the Crown,” a phrase which had, even in 1215, considerably altered its original meaning. In the eleventh century it had denoted royal business, whether relating to judicial procedure or not, embracing all matters connected with the King’s household or his estates, with the collection of his revenue, or the administration of his justice, civil as well as criminal. Gradually, however, the usage of the word altered in two respects, contracting in one direction, while expanding in another. It ceased to be applied to financial business and even to non–criminal, judicial business, and was reserved for criminal trials held before the King’s judges. This process of contraction had been nearly completed before the accession of John.
A tendency in an opposite direction had been for some time in progress; the distinction drawn in early reigns between petty trespasses, which were left in the province of the sheriff, and grave offences, which alone were worthy of the King’s attention, was being slowly obliterated.1 The central courts extended their activity over all misdeeds, however trivial, until the whole realm of criminal law fell under the description of “pleas of the Crown.” In John’s reign this process of expansion was far from complete: the words then, indeed, embraced grave criminal offences tried in the King’s great courts, but not the petty offences disposed of in the sheriff’s tourn or elsewhere.1
North of the Tweed the same phrase has had a different history: in modern Scots law its connotation is still a narrow one; and this is a result of the slow growth of the Scottish Crown in authority and jurisdiction, in notable contrast to the rapidity with which the English Crown attained its zenith. The Kings of Scotland failed to crush their powerful vassals, and pleas of the Scottish Crown, exclusively reserved for the High Court of Justiciary, formed a meagre list—the four heinous crimes of murder, robbery, rape, and arson. The feudal courts of the Scottish nobles long preserved their wide jurisdiction over all other offences. When the heritable jurisdictions were at last abolished, in 1748, the old distinction, so deeply rooted in Scots law, still remained. The sheriff court had no cognizance, until late in the nineteenth century, over the four crimes specially reserved for the King’s judges.2 Thus in Scotland the historic phrase “pleas of the Crown” is, even at the present day, confined to murder, robbery, rape, and fire–raising, while to an English lawyer it embraces the entire realm of criminal law.
Keeping and Trying Criminal Pleas.
The machinery for bringing criminals to justice, as organized by Henry II., was somewhat elaborate. For our present purpose, it may be sufficient to emphasize two important stages in the procedure. An interval had always to elapse between the commission of grave crimes and the formal trial of the accused, for the coming of the itinerant justices took place only at intervals of about seven years. Meanwhile, preliminary steps were taken to collect and record evidence, which might otherwise be lost. The magistrate responsible for these preliminary steps was said to “keep” the pleas (custodire placita)—that is, to prevent them from passing out of mind1 while waiting for the justices who would formally “hold” or “try” or “determine” them (placitare or habere or tenere placita).
Before the reign of John, 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 King’s justices could “hold” them. The process of differentiation was accelerated 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 through the counties, contain provisions intended to keep the pretensions of sheriffs within bounds:2 they were expressly forbidden to act as justices within any counties in which they had acted as sheriffs since Richard’s coronation.3
It is safe to infer that the “trying” of royal pleas was the province from which the sheriff was thus to be 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 instructions4 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.5
The ordinance of 1194 seems to have settled subsequent practice in both respects. Sheriffs, while still free to punish petty offenders 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 approved both rules. Yet John condoned and encouraged irregularities, allowing sheriffs to meddle with pleas of the Crown, even when no coroners were present to check their arbitrary methods;1 and allowing them to give final judgments, involving loss of life or limb, without waiting for the Justices.2 He employed the same men to visit as justices the very counties they had oppressed as sheriffs. The notorious Engelard of Cigogné, branded by name in chapter 50 of Magna Carta, acted as justice in his own county of Gloucester.3
The Articles of the Barons condemned such practices; and Magna Carta, in this first of a series of clauses directed against sheriffs’ misdeeds, forbade them under any circumstances to try royal pleas.
The Intention of Magna Carta.
The barons were merely demanding that the Crown should observe the rules it had laid down for its own guidance: caprice must give way to law. Sheriffs must not usurp the functions of coroners; nor must sheriffs and coroners together usurp those of King’s justiciars. John’s opponents associated these two irregularities, and may have assumed that expressly to abolish one implied an intention to abolish both. Some such supposition would explain a peculiar discrepancy between the Articles and the Charter. While Article 14 demanded redress of one grievance, Magna Carta granted redress of a different one. The earlier document required that coroners should always be associated with the sheriff when he meddled with pleas of the Crown: the Charter forbade sheriffs and coroners to “try” pleas of this description. These two provisions are the complements of each other. Magna Carta would 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 strictly enforced in Henry’s reign, soon became absolute. Thus sheriff Ralph Musard was one of seven justices of eyre who went on circuit in 1221, but he was prohibited from sharing the labours of his colleagues when they sat in Gloucestershire, where he was still sheriff.1 Under Edward I. no one could determine such pleas unless armed with a royal commission to that effect;2 and the commission would take the form either of gaol delivery, of trailbaston, or of oyer and terminer.3
An Erroneous View.
Hallam misunderstood the object of this provision. Commenting on Henry’s Charter of 1225, he declares that the “criminal jurisdiction of the Sheriff is entirely taken away by Magna Carta, c. 17.”4 This is a mistake: both before and after the granting of the Charter, the sheriff exercised criminal jurisdiction, and that of two 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 made responsible for every stage in the trial of trivial offences. He heard indictments and then condemned and punished petty offenders in a summary manner.5 Several statutes of later reigns confirmed, even while regulating, the authority of the sheriff to take indictments at his tourns,6 until this jurisdiction was transferred, by an act of the fifteenth century, to the justices of peace assembled in Quarter Sessions.1
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.”2 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.3
Professor Hearnshaw4 propounds a theory that better fits the facts. He holds that this chapter defined and consolidated the sheriff’s authority, giving him a recognized sphere of action of his own: in 1215 “leet jurisdiction came into existence. It was the jurisdiction left by the Great Charter to the sheriff in his tourn,” while chapter 42 of the reissue of 1217, forbidding the tourn to be held oftener than twice a year, marked it off “from the ordinary civil jurisdiction of the three–weekly hundred court.”
Local Magistrates under John.
The urgent need of restricting the authority of the sheriffs can be abundantly illustrated from contemporary records. 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,1 and, again, some two months later, when John, at the instance of Nicholas, the papal legate, promised to restrain their violence and illegal exactions.2 Little or nothing, however, was effected; and Magna Carta, in addition to condemning specified evils, contained two general provisions: 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.3
No royal officer was 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. A brief sketch of the 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 house of Wessex had been entrusted to an agent 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.4
In England, during the Anglo–Saxon period, the chief power over each 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 spiritual affairs; while the policy of the Conqueror relegated the earl to a position of dignity 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.
To appreciate the full authority enjoyed by a sheriff who retained the King’s confidence, we must remember the varied nature of his powers. He was not only local magistrate, local tax–gatherer and local judge, but he commanded the troops of his bailiwick. A royal favourite might have several counties and one or more royal strongholds in his custody. The military power of Fawkes de Breauté, for example, must have been enormous, for it embraced the forces of Northampton, Cambridge, Huntingdon, Bedford, Buckingham, and Oxford.1 How powerful such men had become is shown by their pretensions after King John’s death, when they claimed to hold their bailiwicks as matter of right throughout his son’s minority. Preposterous as this demand seems, Henry’s advisers gave effect to it, when they confirmed the appointment of all John’s sheriffs (with the one exception of the notorious Stephen Harengod), thus weakening the central government at a time when it needed all its strength.2
The sheriff, however, had passed the zenith of his power before the reign of John. That King’s father had been strong enough to show the disobedient sheriff his proper place, as he did notably in 1170. John, however, had his own reasons for giving a freer hand to the agents of his evil will, foreigners and desperadoes, whose services he rewarded in this way. This recrudescence of the sheriff’s powers must be added to the causes contributing to the revolt of 1215.
It has already been explained how in 1194 the sheriff’s powers were restricted. To the next year is usually traced the origin of the justices of the peace, who gradually took over the duties of the sheriff, until they 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. The fall of the sheriff was thus gradual, although finally 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 George for each county by pricking at random one name out of a list of three leading land–owners presented to him for that purpose. He is responsible, during his year of office, for the execution of all writs of the superior Courts within his county, including the execution of criminals, 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. The real duties of his office are now performed 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 the local court of his shire, known as “the Sheriff Court.” He has thus retained intact his judicial functions, to which such administrative duties as still remain to him are 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.
Portions of certain counties were exempted from the sheriff’s bailiwick. Districts afforested were administered by wardens, assisted by verderers, who excluded the sheriff and coroners; while royal fortresses, together with the land immediately surrounding them, were under command of officers known indifferently as castellans or constables.1 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.”
The name constable has at different periods 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 the member of the royal household responsible for the King’s stables. At a later date, he shared with the Earl Marshal the duties of Commander–in–chief. The name of constable came to be applied also to commanders of small bodies of troops, whether in castles or elsewhere. At a later date the word was used in connection with duties of watch and ward: each hundred had its high constable and each village its petty constable in the fourteenth and fifteenth centuries.2 The name is at the present day, confined to members of the police force.
The word, as used in Magna Carta, denoted the captain of a royal castle.3 Such an office was one of trust; and wide powers were conferred upon its holder. He acted as gaoler of 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. 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. The 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.”1 The Articles of 1309 complained that constables of the King’s castles took cognizance of common pleas.2 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 they had unjustly condemned in another. This practice was put down by statute in 1403.3
It would appear that at an earlier period the constable of the hundred sometimes acted as 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.
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. They were appointed by the whole body of freeholders assembled in the county court,4 and 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 preliminary investigations; to examine the size and nature of the victim’s wounds in a charge of mayhem;1 and to keep a watchful eye on royal windfalls, including deodands, wrecks, and treasure–trove. They had also to appraise the value of chattels 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 kept a record of those who had been outlawed, and received “appeals” of criminal charges.2
Magna Carta forbade the coroner to determine pleas of the Crown; but, even after 1215, he sometimes did justice upon felons caught red–handed. An act of Edward I.3 accurately defined his duties, empowering him to attach pleas of the Crown and to present criminals for trial, but forbidding him to proceed further alone.
The coroner’s functions, originally so wide and varied, have been gradually narrowed down, until at the present day the duty usually associated with his office is the holding of inquests on dead bodies where there are suspicious circumstances.4 He is still responsible for treasure–trove and he is also competent to act as the sheriff’s substitute in case of illness or absence during the year of office.
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 applied to every individual to whom authority of any sort has been delegated by another. It would include 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.1
[1 ]Traces may be found in Glanvill, I. c. 1.
[1 ]The triumph of royal justice over all rivals in the sphere of criminal law is thus symbolized by the extension of the phrase “pleas of the Crown,” which can be traced through a series of documents—e.g. (a) the laws of Cnut; (b) Glanvill, I. cc. 1, 2, and 3; (c) the Assizes of Clarendon and Northampton; (d) the ordinances of 1194; and (e) Magna Carta.
[2 ]The Criminal Procedure (Scotland) Act, 1887 (50 and 51 Victoria, c. 35) gave him jurisdiction over three of them.
[1 ]Cf. infra, 315–6, for details.
[2 ]See Forma procedendi, cc. 20 and 21 (Sel. Chart., 260).
[3 ]Ibid., c. 21.
[4 ]Ibid., c. 20.
[5 ]The Forma procedendi 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. Maitland remained unconvinced (Eng. Hist. Rev., VIII. 758, and Pollock and Maitland, I. 519).
[1 ]This inference is drawn from Article 14 of the Barons.
[2 ]This inference is drawn from c. 24 of Magna Carta.
[3 ]See Maitland, Gloucester Pleas, xx.
[1 ]Ibid., p. x.
[2 ]See Coke, Second Institute, 30, and authorities there cited.
[3 ]For explanation of these terms, see supra, c. 18.
[4 ]See Middle Ages, II. 482 n.
[5 ]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 and the present day.
[6 ]E.g. 13 Edward 1. c. 13, and 1 Edward III., stat. 2, c. 17.
[1 ]1 Edward IV. c. 2.
[2 ]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.
[3 ]Dr. Stubbs, Const. Hist., I. 650, thinks that the Charter indicated a tendency towards judicial absolutism, only curbed by the growth of trial by jury. Yet the barons had 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. 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.
[4 ]Leet Jurisdiction, 340.
[1 ]See supra, p. 28.
[2 ]See W. Coventry, II. 214–5.
[3 ]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.
[4 ]Cf. supra, pp. 15–16.
[1 ]See G. J. Turner, Trans. R. Hist. Soc., XVIII. 272.
[2 ]On this whole subject see the valuable remarks of Mr. Turner, op. cit., p. 272.
[1 ]These localities were independent of the ordinary executive authorities of the county; partial exemption from the sheriff’s control was enjoyed also by (a) chartered boroughs and (b) holders of franchises. The same man might, of course, be both sheriff and castellan.
[2 ]See H. B. Simpson, Eng. Hist. Rev., X. 625, for authorities.
[3 ]Evidence collected by Coke, Second Institute, 31, proves the identity. See also Round, Ancient Charters, No. 55, where Richard I. in 1159 speaks of “constabularia castelli Lincolniae.”
[1 ]See Articuli super cartas, 28 Edward I. c. 7.
[2 ]Stubbs, Const. Hist., II. 339.
[3 ]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.”
[4 ]See Stubbs, Hoveden, Pref. to Vol. IV. xcix.
[1 ]See Bracton, f. 122b.
[2 ]In 1197 Richard’s Assize of Measures appointed six custodientes in each county and town. These were coroners over one class of offences, the use of false weights and measures. Cf. infra, under c. 35.
[3 ]Statute of Westminster, I. c. 10.
[4 ]Cf. Coke, Second Institute, 31, “In case when any man come to violent or untimelv death, super visum corporis.”
[1 ]Mr. G. J. Turner, speaking of the minority of Henry III., thinks “the term ‘bailiff’ as applied to a county at this period meant ‘sheriff.’” Transactions, p. 274.