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CHAPTER FORTY–SIX. - 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).
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Omnes barones qui fundaverunt abbatias, unde habent cartas regum Anglie, vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut habere debent.
All barons who have founded abbeys, concerning which they hold charters from the kings of England, or of which they have long–continued possession, shall have the wardship of them, when vacant, as they ought to have.
Religious houses of various orders (abbeys, priories, and convents), which had increased rapidly in number since the reign of Henry I., fell naturally into two classes, according as they had been founded by the King or by private individuals. The King or the great baron, in bestowing lands on a religious foundation, reserved, either expressly or by implication, valuable rights of property: of these the control over the election of the abbot or prior, together with the wardship of the fief during vacancies, were the most important. King John, while by his charter to the clergy he renounced control over election of bishops, reserved his rights of wardship; and the barons insisted that the proprietary rights of mesne lords who had founded religious houses, should also be respected. John, however, wherever he had any plausible pretext, usurped the wardship over private foundations. It would appear, from the terms of a later chapter,1 that in 1215 the Crown actually held in ward certain abbeys founded by mesne lords. The present chapter looks to the future, forbidding new usurpations of this nature.
In reissues of the Charter verbal changes occur, but it is not clear that they imply changes of substance. In 1216 the words “and as it has been above declared” were added, implying that the rights of mesne lords were to be restricted by the rules previously laid down in chapter 5, as to wardship—rules particularly applied to the lands of bishoprics and religious houses in 1216 by a clause which had no parallel in John’s Charter.2 In 1217 three other small changes tend to define and perhaps to widen the scope of the clause. The “barons who have founded abbeys” become “the patrons of abbeys”; royal “charters” become more explicitly “charters of advowson”; “ancient tenure” is expanded into “ancient tenure or possession.”3 These alterations seem to indicate an effort towards greater verbal accuracy, and do not involve any change of principle. It should, perhaps, be noted, however, that the words “patroni” and “de advocatione,” occurring in 1217, contain a tacit assertion of lay patronage of which there was no hint in 1215; but it would not be safe to conclude from this alone that there had been any change of attitude on the question of canonical election.
The object of this chapter was to define the relations between the King and the barons as to wardship, not those between the lay and ecclesiastical authorities as to rights of appointment. It seems to have made little difference, if any, in practice: Henry III. never observed in its fullness the doctrine here enunciated, but claimed wardship over abbeys and priories founded by earls and barons on their own fiefs.4 On the closely allied question of lay patronage, not directly raised in any version of Magna Carta, Henry’s practice seems not to have differed from his father’s. John interfered freely between abbeys and their founders. On 16th August, 1200, he granted to William Marshal the privilege of bestowing the pastoral staff of Nuthlegh Abbey, which lay within that earl’s fief; this shows that he forbade appointments without royal licence.1 The barons in 1258 protested against similar conduct on the part of Henry III.2
[1 ]See infra, c. 53.
[2 ]Cf. supra, p. 212.
[3 ]See Appendix for final form in charter of 1225.
[4 ]See Petition of Barons, c. 11 (Sel. Chart., 384); Maitland, Sel. Pleas Man. Courts, lxxvii. For the practice in Normandy, see authorities cited by Adams, Origin, 246 n.
[1 ]See New Rymer, I. 81. John had also interfered “in the time of the interdict” with what Robert fitz Walter considered his rights of patronage over Binham Priory (a cell of St. Albans). See J. H. Round, Eng. Hist. Rev., XIX. 710–11.
[2 ]Petition of Barons, c. 11 (Sel. Chart., 384).