The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Second Edition.
• From Preface to First Edition.
• Historical Introduction
• Part I.: Events Leading to Magna Carta.
• Part II.: Feudal Grievances and Magna Carta.
• Part III.: Magna Carta: Its Form and Contents.
• Part IV.: Historical Sequel to Magna Carta.
• Part V.: Magna Carta: Original Versions, Printed Editions and Commentaries.
• Text, Translation, and Commentary
• Preamble.1
• Chapter One.
• Chapter Two.
• Chapter Three.
• Chapter Four.
• Chapter Five.
• Chapter Six.
• Chapter Seven.
• Chapter Eight.
• Chapter Nine.
• Chapter Ten.
• Chapter Eleven.
• Chapter Twelve.
• Chapter Thirteen.
• Chapter Fourteen.
• Chapter Fifteen.
• Chapter Sixteen.
• Chapter Seventeen.
• Chapter Eighteen.
• Chapter Nineteen.
• Chapter Twenty.
• Chapter Twenty–one.
• Chapter Twenty–two.
• Chapter Twenty–three.
• Chapter Twenty–four.
• Chapter Twenty–five.
• Chapter Twenty–six.
• Chapter Twenty–seven.
• Chapter Twenty–eight.
• Chapter Twenty–nine.
• Chapter Thirty.
• Chapter Thirty–one.
• Chapter Thirty–two.
• Chapter Thirty–three.
• Chapter Thirty–four.
• Chapter Thirty–five.
• Chapter Thirty–six.
• Chapter Thirty–seven.
• Chapter Thirty–eight.
• Chapter Thirty–nine.
• Chapter Forty.
• Chapter Forty–one.
• Chapter Forty–two.
• Chapter Forty–three.
• Chapter Forty–four.
• Chapter Forty–five.
• Chapter Forty–six.
• Chapter Forty–seven.
• Chapter Forty–eight.
• Chapter Forty–nine.
• Chapter Fifty.
• Chapter Fifty–one.
• Chapter Fifty–two.
• Chapter Fifty–three.
• Chapter Fifty–four.
• Chapter Fifty–five.
• Chapter Fifty–six.
• Chapter Fifty–seven.
• Chapter Fifty–eight.
• Chapter Fifty–nine.
• Chapter Sixty.
• Chapter Sixty–one.
• Chapter Sixty–two.
• Chapter Sixty–three.
• Appendix. Documents Relative To, Or Illustrative Of, Magna Carta.
• I.: The Charter of Liberties of Henry I.1 (1100.)
• II.: The Second Or Oxford Charter of Stephen.1 (1136.)
• III.: Charter of Henry II.1 (circa 1154.)
• IV.: The So–called “unknown Charter of Liberties” of John.2 (circa 1214–1215.)
• V.: The Articles of the Barons.1 (1215.)
• VI.: Writs Supplementary of John’s Great Charter.
• VII.: The Great Charter of Henry III.2 (third Reissue, 11th February, 1225.)
• VIII.: Carta De Foresta.1 (6 November, 1217.)

CHAPTER TWENTY–FIVE.

Omnes comitatus, hundrede, wapentakii, et trethingii, 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, directed against the sheriffs, shows a 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, England had been already mapped out into shires on lines substantially the same as those which still exist. Each county had been 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 large counties such as York and Lincoln, each of which had three “trithings” or ridings.

In commenting upon chapter 24, it has been 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 the chief magistrate in the county. His financial duties, however, long remained the most important. Even before 1066, the sheriff 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, buying for a yearly rent the right to appropriate to his own uses the revenues of the county. The Crown got the exact sum stipulated for, known as the firma comitatus; while the balance, if any, remained with the sheriff. In plain words, the sheriff speculated in the returns: 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 firma comitatus; but the two chief sources of revenue were the profits of justice in the local courts, and the rents of royal manors.

William I. sharply raised the farms, and his successors endeavoured, whenever possible, to increase them 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 to the shoulders of those subject to his authority. His rule tended always to be oppressive, but his unjust exactions would be doubled 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 curtailment of the sheriffs’ pretensions. He punished their excesses and deprived them of office. John, on the contrary, appointed men of a less reputable type, and gave them rope. In return, he wrung more money from them. Not content with exacting the annual firma and the additional sum known as “increment,” which had now become stereotyped as a fixed and recognized payment,1 John from 1207 onwards exacted a third payment under name of proficuum, and allowed his sheriffs to inflict new severities to recoup themselves for their additional outlay.

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 proficuum. The barons here made an innovation which was unfair to John. If it benefited the men of the counties in dealing with their sheriffs, it gave the sheriffs an undeserved 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 unfair to bind the Crown by a hard–and–fast rule which would practically make a present of this future “unearned increment” to the sheriff. To stereotype the firma was to rob the Crown, which required increased revenues to meet the increased cost of its expanding duties.2

Although this chapter was omitted from all reissues, the Crown, during Henry III.’s minority, forbore to exact the proficuum, reverting to the practice prior to the seventh year of his father’s reign. After he had been declared of age, however, increased sums were again taken.3 There was, indeed, no valid reason why the unearned increment should go to the sheriff rather than to the King: it was sufficient to provide against the fixing of the amounts too high. The Articuli super cartas, accordingly, while conceding to the counties the right of electing their own sheriffs, declared 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.”1 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.2

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 left exposed to arbitrary increases of their annual rents. Now, the chief items contained in the firma were, as already explained, the rents of these manors and the profits of the local courts. It would thus appear, in the light of this exception, that the aim of Magna Carta was to prevent an increase under the second head—to prevent, that is, the local courts being made the instruments of extortion; and this apparently was the precise object of chapter 42 of the reissue of 1217.

That chapter struck at one of the most fertile of the sheriffs’ expedients for swelling the profits of their office. It was their practice to summon the various district courts with unnecessary frequency and at inconvenient times and places, fining every suitor who failed to attend. The Charter of 1217 reaffirmed the ancient usage3 : no county court should meet in future oftener than once a month; no sheriff or bailiff should make his “tourn” through the hundreds oftener than twice a year, to wit at Easter and Michaelmas, and that only at the accustomed place; view of frankpledge should only be held once a year at Michaelmas, and the sheriff must not seek “occasions,” but content himself with what he was wont to get for taking his “view” under Henry II.; all liberties must be respected; and any district in which the courts meet by custom less frequently than is normal, shall have the benefit of such exceptional local usage.1

In a curious case2 that came before the justices in 1226, this clause was pleaded as a defence against a charge of impeding the sheriff of Lincoln in the performance of his duties of holding “counties,” “thethings” (or courts of ridings), and wapentakes: the sheriff, against custom, was holding county courts oftener than once in five weeks and for more than one day at a time, and was holding a wapentake in Ancaster oftener than twice a year, and not according to the charter of liberty.

In another plea (1231)3 juries testify that since the making of “carta de Runemede” (here evidently used for the Charter of 1217) the sheriff has come into the hundred twice instead of once a year (as the old custom was) to take view of frankpledge and to make attachments of pleas of the Crown.

After 1217, in absence of express royal grant or prescription to the contrary, the rule formulated in Henry’s second reissue of Magna Carta fixed the times of holding the “tourn” of the sheriff, and this was extended also to the “leet” jurisdiction, which in the liberties took the place of the tourn.4

[1 ]These extra payments appear under various names, e.g. augmentum or incrementum in Domesday Book (cf. Ballard, Domesday Inquest, 75). The Pipe Roll for 1166 (p. 11) records 200 marks paid as gersuma for Norfolk and Suffolk. See evidence collected by Adams, Origin, 237 n. Huge sums were sometimes paid: Archbishop Geoffrey in 1194 purchased the shrievalty of York for £2000. Ramsay, Angevin England, 345.

[2 ]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.

[3 ]See Turner, Trans. R.H.S., XVIII. 289.

[1 ]These are the words of the statute of 1330, cited below.

[2 ]4 Edward III. c. 15; 14 Edward III. c. 9; 4 Henry IV. c. 5.

[3 ]For this usage see Cnut, II. 18 (Liebermann, Gesetze, I. 321); Leges Henrici, 7 and 8 (ibid., 553); Writ of Henry I. (ibid., 524).

[1 ]See supra, p. 150.

[2 ]Bracton’s Note–book, Plea 1730.

[3 ]Ibid., No. 513.

[4 ]See Hearnshaw, Leet Jurisdiction, 79, 80, who reminds us, however (p. 147), that “even Magna Carta can be prescribed against.”