Front Page Titles (by Subject) THE PRAEROGATIVA REGIS 1 - The Collected Papers of Frederic William Maitland, vol. 2
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THE “PRAEROGATIVA REGIS 1 ” - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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THE “PRAEROGATIVA REGIS1 ”
Dr E. F. Henderson has raised2 an interesting question, and one which, if I am not mistaken, has never received that full discussion which it deserves. What is the date and what is the nature of the document which passes under the title “Praerogativa Regis”? It used to be printed as a statute of the seventeenth year of Edward II. This, as I believe, was due to a mere accident. The lawyers of the later middle ages in their manuscripts drew a line between the “Statuta Vetera,” which ended with the end of Edward II's reign, and the “Statuta Nova,” which began with the beginning of Edward III's reign. Between the two, like an apocrypha between the two testaments, they inserted a group of documents about the date and the character of which they were uncertain, and among these documents the “Praerogativa Regis.” Then, when the time for printing had come, the position in which these documents were found gave rise to the inference that they were statutes of some year late in the reign of Edward II. Now to this inference there is an objection which seems insuperable. A statute of Edward II's reign—an important statute, if statute it were—would be upon the statute roll; but the “Praerogativa Regis” is not upon the statute roll, but has to be discovered in mere private manuscripts. Therefore I can agree with Dr Henderson when he rejects this date, but when he would make the document in question a statute of Henry III's reign then I most respectfully differ from him. It seems to me no statute, but a tract written by some lawyer in the early years of Edward I. May I be allowed to say a few words in defence of this opinion?
In the first place, throughout the whole document there is no word of command, nothing about “ordaining” or “establishing,” nothing about “I” or “we,” no reference to the quarter from which it proceeds. It is just an objective statement of the king's rights; the king shall have this, the king shall have that. Was ever any other English statute couched in such a form? I think not. Another question: Does any other statute condescend to tell stories? Here we have a story about the heirs of John of Monmouth (c. 14), and another story about the widow of Anselm Marshall (c. 15). But let us look at the matter more closely, taking as our guides Bracton, who wrote somewhere about 1255, Britton and Fleta, who wrote somewhere about 1290.
The first seven chapters afford me no matter for remark, save that in the fourth there is mention of “King Henry, father of King Edward.” How Dr Henderson would deal with this passage I cannot guess; perhaps he regards it as an interpolation, for he can hardly endow Henry III with a spirit of prophecy. To my mind this passage tells us plainly that the document was written after Henry's death, and also, though less plainly, that it was written during the life of his son.
The eighth and ninth chapters deal with alienations made by the king's tenants in chief and state a doctrine intermediate between that of Bracton on the one hand and that of Britton and Fleta on the other. It would be long to discuss this matter minutely, but the subjoined references1 will show that while in Bracton the king's claim to check the alienations made by his tenants in chief goes hardly beyond the well-known provision of the charter of 1217, Britton has nearly and Fleta has quite arrived at the broad principle of later law—namely, that no tenant in chief of the crown can alienate the whole or any part of his tenement without the king's consent. Now in this respect our “Praerogativa” stands nearer to Bracton than to Fleta. No one who holds of the king in chief by military service may alienate the greater part of his land without royal licence; “but this is not wont to be understood” concerning “members and parcels of the same lands.” Raising by the way the question whether statutes often tell us what “is wont to be understood,” I here find a reason for saying that this document lies between Bracton and Fleta.
The eleventh chapter introduces a very curious topic, the king's rights in the lands of “natural fools.” I believe that of these very valuable rights there is no trace in Bracton2 ; on the other hand Britton and Fleta know them well3 , and so far as my knowledge goes they begin to appear in the reign of Edward I. But, further, Britton has a tale to tell of them, and a tale that I have never seen properly explained1 . Speaking of a somewhat technical point in the law of guardianship, he touches on a case in which the lord, who otherwise would be guardian, is deprived of his usual rights by the fact that the heir is a natural fool. This rule, he says, was laid down by Robert Walrond, with the common assent of the magnates of the land, “and in his heir and the heir of his heir the statute first took effect.” Robert Walrond, of course, is the person of that name who, as a royal judge and royal favourite, played a considerable part in “the misrule of Henry III.” He pronounced the sentence of Winchester which disinherited the rebellious barons, and became rich with the spoil of those whom many regarded as national heroes and martyrs. He died in or about 1272. Coke, who did not know the fact that I am going to state, supposed that Britton's story related to a certain section in the statute of Marlborough (1267), which has to do with wardship, but nothing to do with idiots, and therefore he concocted a fable telling how the biter was bit, how the statute procured by Walrond nullified a certain device whereby Walrond had tried in his own case to evade the law of wardship2 . I say that Coke concocted a fable, for the simple truth is this: that Walrond left an heir who was an idiot, and that this heir left an heir who was an idiot. That is what Britton means. The king's rights in the lands of idiots have their origin in some statute or ordinance issued on the advice of Walrond, and this first took effect in his heir and the heir of his heir. I am not sure that Britton thought that the biter had been bit. It may be that Walrond foresaw that his heir would be an idiot; he had no children, and his brother's son, his heir presumptive, was, in Britton's language, “un soot.” He may deliberately have preferred that his land should fall into the hands of his good friend the king rather than that it should fall into the hands of his lords, some of whom, like enough, had been his mortal enemies. For this was coming to be the choice; if an idiot was to be treated as an infant, then the idiot holding by military tenure would be in life-long wardship to his lord. Better the king than the lord1 .
Fleta also treats the king's profitable guardianship of idiots as the outcome of a recent statute2 . Formerly, he says, the “tutores” of idiots used to be the guardians of their lands; this was in accordance with principle, for idiots are quasi infants; but many were thus disinherited, and therefore it was provided by common consent that the king should have the wardship of all born fools. There can, therefore, in my opinion, be little doubt that about this matter there was legislation in which Robert Walrond took part, and we must ascribe the new law to the last years of Henry III. Our “Praerogativa” then, was compiled after that change.
In its fourteenth chapter we have a story from Henry III's reign. John of Monmouth died; his heir was an alien, a Breton, and King Henry took his land. In the fifteenth we have another story from the same reign. On the death of William, Earl Marshall, his brother and heir, Anselm, entered on the lands that had descended to him without first doing homage to the king; he then died, and it was adjudged that his widow, Maud, daughter of the earl of Hereford, should have no dower, for her husband had entered as an intruder on the king. John of Monmouth I take to be the bearer of that name who died in or shortly before 12571 ; he seems to have left as heiresses two aunts, who were of the family of Waleran. The tale about the Marshalls is not quite correctly told by this so-called statute. The inheritance did not pass immediately from William to Anselm; as is well known it came to five brothers in succession, of whom William was the eldest and Anselm the youngest; Anselm died in 1245, and his widow, Maud, died in or shortly before 12522 . These stories about what happened in the middle of the thirteenth century would hardly have been very interesting to lawyers in the fourteenth, when they would have been regarded as antiquated illustrations of well-established legal rules. That Edward II's parliament was at pains to tell them I should not easily believe.
We come to the chapter on which Dr Henderson relies. The king is to have year, day, and waste of the felon's land; the tenement is to be actually wasted. Britton mentions the wasting as a thing of the past; upon this Dr Henderson founds an argument that the “Praerogativa” comes from Henry III's day. But why, I must ask, may it not come from the early years of Edward I? Britton did not write until 1290 or thereabouts; at least his book as we have it was not written until then. This leaves some seventeen years during which the change in the law, if change there was, may have taken place, without our being driven to suppose that a document which mentions King Edward was written before his accession.
In Edward III's reign those who held that the “Praerogativa” was a statute believed it to be a statute of Edward I; but there were others who said that it was no statute at all, but a mere “rehearsal” of the common law1 . Throughout the middle ages it never obtained an unconditional acceptance as part of the written law of England. In 1475 all the great lawyers seem agreed that it is no statute2 . Littleton in particular is clear and emphatic. It is an “affirmance of the common law, for every statute mentions the date at which it was made, but this document is dateless; it is not a statute, no more than the ‘Dies Communes in Banco,’ the ‘Dies Communes in Dote,’ and the ‘Expositiones Vocabulorum’ are statutes. They are written in our books, but they are not statutes.” Then Littleton tells how “my lord Markham” had disregarded the words of the “Praerogativa,” and so, he repeats once more, “it cannot be called a statute.” What exactly these judges meant when they said that the document was a “rehearsal” or an “affirmance” of the common law is not in all cases very plain. But Littleton puts it on the same level with two documents fixing the “delays” which are to be given in actions—documents which perhaps may be described as “rules of court”—and with another document which certainly had no authoritative origin—namely, the “Expositiones Vocabulorum,” a belated and not too intelligent attempt to give some certain meaning to sake, soke, toll, theam, and other Anglo-Saxon law words. Littleton very probably thought that great respect was due to the “Praerogativa”; it was a venerable statement of common law, and perhaps he believed that it had been issued by some person or body of persons having power to make statements of law which should command the respect of the justices; but certainly he did not think that its very words were law as the very words of a statute would be law. Markham had disregarded them, and Littleton was ready to do the like.
Whether it be purely private work or no I will not take on me to decide; it may have been a document issued by the king to his serjeants, possibly to his judges, instructing them as to the king's views of his own rights (at every doubtful point it leans towards royal claims); but at least I think that we ought to agree with Littleton, ceo ne poet estre dit come un statute.
English Historical Review, April, 1891.
Ibid. v. 753 (October, 1890).
Bracton, f. 169 b, 395; Britton, I. 222; Fleta, p. 178.
See Bracton, f. 420 b.
Britton, II. 20; Fleta, p. 6.
Britton, I. 243.
Second Inst. 109, a comment on Stat. Marlb. c. 6.
I cannot pretend to any skill in genealogies, but the story seems to be this: In I Edw. I (1272–3) Robert Walrond was dead; his heir was Robert the son of his brother William; Robert was then about seventeen years old (Cal. Genealog. p. 194); he was an idiot (ibid. p. 706; Rot. Parl. 196), and from him the lands descended to his brother John, who was also an idiot; after John's death there was a great lawsuit between rival claimants (Placit. Abbrev. pp. 309, 310). The date of the first idiot's death I have not ascertained, but it occurred in Edward I's reign.
Fleta, p. 6.
Cal. Gen. p. 73; Courthope, Historic Peerage, p. 325.
Excerpt. e Rot. Fin. I. 143.
Y. B. 43 Edw. III, f. 21 (Trin. pl. 12).
Y. B. 15 Edw. IV, f. II (Mich. pl. 17).