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.)

TEXT, TRANSLATION, AND COMMENTARY

PREAMBLE.1

Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariis, vicecomitibus, prepositis, ministris et omnibus ballivis et fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute anime nostre et omnium antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte Ecclesie, et emendacionem regni nostri, per consilium venerabilium patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris, fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie, Willelmi comitis Warennie, Willelmi comitis Arundellie, Alani de Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla, Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii Hugonis et aliorum fidelium nostrorum.

John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greeting. Know that, having regard to God and for the salvation of our souls, and those of all our ancestors and heirs, and unto the honour of God and the advancement of holy Church, and for the reform of our realm, [we have granted as underwritten]1 by advice of our venerable fathers, Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman Church, Henry archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry, Benedict of Rochester, bishops; of master Pandulf, subdeacon and member of the household of our lord the Pope, of brother Aymeric (master of the Knights of the Temple in England), and of the illustrious men2 William Marshal, earl of Pembroke, William, earl of Salisbury, William, earl Warenne, William, earl of Arundel, Alan of Galloway (constable of Scotland), Waren Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip d’Aubigny, Robert of Roppesley, John Marshal, John Fitz Hugh, and others, our liegemen.

The Great Charter of John opens, in the form common to royal charters of the period, with a greeting from the sovereign to his magnates, officials, and faithful subjects, and announces, in the pious legal formula used by impious and pious kings alike, that he had made certain grants by the advice of counsellors whom he names. Three features call for comment.

I. The King’s Title. Points of interest are suggested by the form of royal style here adopted. John’s assumption of the royal plural “Sciatis Nos” reads, in the light of subsequent history, as a tribute to his arrogance rather than his greatness, when compared with the humbler first person singular used by his father. In this particular, however, Richard, not John, had been the innovator.1 For a further alteration, John was alone responsible: to the titles borne by his father and brother, he added that of “lord of Ireland.” When the wide territories of Henry II., had been distributed among his elder sons, the young John (hence known as “John Lackland”) was left without a heritage, until his father bestowed on him the island of Ireland, recently appropriated; and this brought with it the right to style himself “dominus Hiberniae,” a title retained after he had outlived his brothers and inherited their wide lands and honours.

John began his reign in 1199 as ruler over the undivided possessions of the House of Anjou from the Cheviots to the Pyrenees. These lands were held, by him as by his father, under a variety of titles and conditions. Anjou, the original fief of the Plantagenet race, still carried with it only the title of count. Henry II. had, at an early age, become duke of Normandy in his mother’s right, and thereafter duke of Aquitaine by marriage with Eleanor, its heiress.2 These fiefs were held by Henry and his sons under the King of France as Lord Paramount. Long before 1215, John had lost these wide dominions, except the most distant of them all, his mother’s dowry of Aquitaine. Anjou and Normandy were irretrievably lost, but he still retained their empty titles; and in this Henry III. followed him at first, until, by the Treaty of 1259, he surrendered to Louis IX. all claim to Normandy and Anjou with their dependencies, in return for a confirmation of his claims on Aquitaine.3

Of Ireland, John was still, as formerly, “lord” not “king.”4 The exact denotation of “dominus” has formed the subject of learned controversy. It is not, as has sometimes been suggested, an inferior title to that of rex, appropriate only to a preliminary stage of the process culminating in kingship. The two words imply distinct relationships differing in kind. The one is national and the other personal and feudal. Kingship is conferred by “election” (or at least proclamation) followed by coronation; lordship depends on the feudal contract made with the individual vassal, by homage and fealty.1 England, alone of John’s possessions, was held by the style of “Rex,” implying sovereign rule, although John in 1213 had accepted Innocent as feudal overlord. In calling himself “Rex Angliae,” in place of “Rex Anglorum” (as Henry I. had done), he followed precedents of Stephen and of Henry II.2

No vindication of John’s title is given. The simple words, “Dei gratia rex Angliae,” may be contrasted with the laboured attempt of Stephen’s second and more formal charter of liberties (of April, 1136) to set forth a valid title to the throne; where he describes himself as appointed (“electus”) by consent of clergy and people; consecrated by William, Archbishop of Canterbury and Legate of Holy Roman Church; and thereafter confirmed by Innocent, Pontiff of the Holy See of Rome.3

Conscious of the claims of his cousin Matilda, Stephen here ignores the element of hereditary succession in determining the title to the Crown, and emphasizes the element of appointment or “election,” both of which were blended in the twelfth, as in earlier centuries, in proportions not easy to define with accuracy. Professor Freeman pushed to excess the supposed right of the Witenagemot to elect the King, and transferred it to the Norman Curia. A recent German writer, Dr. Oskar Rössler,4 denies that the Normans admitted the elective element at all. The theory now usually held is a mean between these extremes, namely, that the Norman Curia had a limited right of selecting among the sons, brothers, or near relations of the last King, the individual best suited to succeed him.1 Such a right, never authoritatively enunciated, gradually sank to an empty formality. Its place was taken, to some extent, by the successful assertion by the spiritual power of a claim to give or withhold the consecrating oil, without which no one could be recognized as rex. John, secure in possession, contents himself with the terse assertion of the fact of kingship: “John, by God’s grace, King of England.”

II. The Names of the consenting Nobles. It was natural that the Charter should place on record the assent of those magnates who remained in at least nominal allegiance, and were therefore capable of acting as mediators.2 The leading men in England during this crisis may be arranged in three groups: (1) the leaders of the host opposed to John at Runnymede; (2) the agents of John’s oppressions, extreme men, mostly aliens, many of whom were in command of royal castles or of mercenary levies; and (3) moderate men, churchmen or John’s ministers or relations, who, whatever their sympathies might be, remained in allegiance to the King and helped to arrange terms of peace—a comparatively small band, as the paucity of names recited in Magna Carta testifies.3 The men, here made consenters to John’s grant, are again referred to, though not by name, in chapter 63, in the character of witnesses.

III. The Motives of the Grant. The preamble contains a statement of John’s reasons for conceding the Charter. These are quaintly paraphrased by Coke:1 “Here be four notable causes of the making of this great charter rehearsed. 1. The honour of God. 2. For the health of the King’s soul. 3. For the exaltation of holy church, and fourthly, for the amendment of the Kingdom.” The real reason must be sought in another direction, namely, in the army of the rebels; and John in after days did not scruple to plead consent given under threat of violence, as a reason for voiding his grant. The technical legal “consideration,” the quid pro quo which John received as the price of this confirmation of their liberties was the renewal by his opponents of the homage and fealty that they had solemnly renounced. This “consideration” was not stated in the charter, but the fact was known to all.2

CHAPTER ONE.

In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas; et ita volumus observari; quod apparet ex eo quod libertatem electionum, que maxima et magis necessaria reputatur ecclesie Anglicane, mera et spontanea voluntate, ante discordiam inter nos et barones nostros motam, concessimus et carta nostra confirmavimus, et eam obtinuimus a domino papa Innocencio tercio confirmari; quam et nos observabimus et ab heredibus nostris in perpetuum bona fide volumus observari.3 Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et heredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas eis et heredibus suis, de nobis et heredibus nostris.

In the first place we have granted to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III., before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs for ever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.

This first of the sixty–three chapters of Magna Carta places side by side, bracketed equal as it were, (a) a general confirmation of the privileges of the English church, and (b) a declaration that the rights to be afterwards specified were granted “to all freemen” of the kingdom and to their heirs for ever. The manner of this juxtaposition of the church’s rights with the lay rights of freemen, suggests an intention to make it clear that neither group was to be treated as of more importance than the other. If the civil and political rights of the nation at large occupy the bulk of the Charter, and are defined in their minutest details, the church’s rights receive a prior place.1 A twofold division thus suggests itself.

I.

The Rights of the Church.

A general promise that the English church should be free was accompanied by specific confirmation of the separate charter, guaranteeing freedom of canonical election, granted on 21st November, 1214.

(1)

Quod Anglicana ecclesia libera sit.

This emphatic declaration, which has no counterpart in the Articles of the Barons, is repeated twice in Magna Carta, at the beginning and the end respectively. If the original scheme of the barons showed no special tenderness for churchmen’s privileges, Stephen Langton and his bishops were careful to have that defect remedied. It is interesting to note that, where the charters of Henry II. and earlier Kings spoke of “holy church,” Magna Carta speaks of “ecclesia Anglicana.” When English churchmen found that the tyrant, against whom they made common cause with English barons and townsmen, received sympathy and support from Rome, the conception of an English church that was something more than a mere branch of the church universal, began to take clearer shape. The use of the words ecclesia Anglicana may indicate, perhaps, that under the influence of Stephen Langton, English churchmen were beginning to regard themselves as members of a separate community, that looked for guidance to Canterbury rather than to Rome. John was now the feudal dependent of the Holy See, and the “liberty of the English church” had to be vindicated against the King and his lord paramount: the phrase had thus an anti–papal as well as an anti–monarchical bearing.

In promising that the English church should be free, John used a phrase that was deplorably vague; it scarcely needed stretching, to cover the widest encroachments of clerical arrogance. Yet the formula was by no means a new one: both Henry I. and Stephen had confirmed the claim of holy church to its freedom.1

Henry II. had agreed in 1173 to give greater freedom of elections, and in 1176 that he would not keep sees vacant for longer than one year,2 but avoided sweeping promises of unlimited freedom. His whole reign, indeed, was an effort, not unsuccessful, in spite of the disastrous consequences of Becket’s murder, to deprive the English church of what she considered her freedom. John in 1215 receded from the ground occupied by his father, confirming by the Great Charter the promise given by the weakest of his Norman predecessors, in a phrase repeated in all subsequent confirmations.

It by no means follows that “freedom of the church,” as promised by Stephen, meant exactly the same thing as “freedom of the church” promised by John and his successors. The value to be attached to such assurances varied in inverse ratio to the strength of the Kings who made them, and this is well illustrated by a comparison of the charters of Henry I., Stephen, and John. Henry used words, which may possibly be interpreted as defining and restricting the grant of freedom,1 until it meant little more than freedom from the graver abuses of Rufus’ reign. Stephen’s charter, on the contrary, supplements the same phrase by definite declarations that the bishops should have sole jurisdiction over churchmen and their goods, and that all rights of wardship over church lands were renounced, thus making it a “large and dangerous promise.”2

“Freedom of the church” had come in 1136 to include “benefit of clergy” in a specially sweeping form, and much besides.3 It is easy to understand why churchmen cherished an elastic phrase which, wide as were the privileges it already covered, might readily be stretched wider. Laymen, on the contrary, contended for a more restrictive meaning; and the Constitutions of Clarendon must be viewed as an attempt to settle disputed points of interpretation. Henry II. substantially held his ground, in spite of his nominal surrender after Becket’s murder. Thanks to his firmness, “the church’s freedom” shrank to more reasonable proportions, so that the well–known formula, when repeated by John, was emptied of much of the content found in it by Stephen’s bishops. Chapter 18 of Magna Carta embodied, apparently with the approval of all classes, the principle that questions of church patronage (assizes of darrein presentment)4 should be settled before the King’s Justices, a concession to the civil power inconsistent with the more extreme interpretations formerly put by churchmen on the phrase.

In later reigns, the pretensions of the church to privileged treatment were reduced to narrow bounds, and the process of compression was facilitated by that very elasticity on which the clergy had relied as being favourable to the expansion of their claims. It was the civil government which benefited in the end from the vagueness of the words in which Magna Carta declared quod Anglicana ecclesia libera sit.1

(2)

Canonical Election.

The charter, granted to the church on 21st November, 1214, had been reissued on 15th January.2 Its tenor may be given in three words, “freedom of election.” In all cathedral and conventual churches and monasteries, the appointment of prelates was to be free from royal intervention for the future, provided always that licence to fill the vacancy had first been asked of the King. The bishops present at Runnymede succeeded in having this concession inserted in the very forefront of Magna Carta.

Henry III. in his reissues was made to repeat the phrase quod Anglicana ecclesia libera sit, but omitted all reference alike to canonical election and to John’s charters to the church. With the Pope’s connivance or support, he reduced the rights of cathedral chapters to the sinecure they had been before 1215. It is true that Henry was prone to lean on the papal arm, and that the Curia at Rome rather than the Curia Regis often dominated appointments to vacant sees: the canons elected the nominee of king or pope, as each was, for the moment, in the ascendant.3 In spite of Magna Carta, the independence of the English church retrograded during the long alliance between Henry III. and successive occupants of the papal throne.4

II.

Civil and Political Rights.

After providing thus briefly for the church, chapter one proceeds to give equal prominence, but at greater length, to the grant or confirmation of secular customs and liberties. A general enacting clause leaves details to the remaining sixty–two chapters of the Charter. Some of the more important points involved have already been discussed in the Historical Introduction—for example, the feudal form of the grant, better suited, according to modern ideas, to the conveyance of a specific piece of land, than to the securing of the liberties of a mighty nation; and the vexed question as to what classes were intended, under the description of “freemen,” to participate in these rights.1

Another interesting point, though of minor importance, calls for separate treatment. John does not state that his grants of civil and political rights had been made spontaneously. Whether deliberately or not, there is here a marked distinction between the phraseology applied to secular and to ecclesiastical rights respectively. While the concessions to churchmen are said to have been granted “mera et spontanea voluntate,” no such statement is made about the concessions to freemen. John may have favoured this omission with an eye to the future repudiation of the Great Charter on the ground that it had been sealed by him under compulsion. Perhaps it was to anticipate the repetition of such arguments that the words spontanea et bona voluntate nostra were inserted in the preamble of the reissue of 1225, which had been purchased by a liberal grant.2

CHAPTER TWO.

Si quis comitum vel baronum nostrorum, sive aliorum tenencium de nobis in capite per servicium militare, mortuus fuerit, et cum decesserit heres suus plene etatis fuerit et relevium debeat, habeat hereditatem suam per antiquum relevium; scilicet heres vel heredes comitis de baronia comitis integra per centum libras; heres vel heredes baronis de baronia integra per centum libras; heres vel heredes militis de feodo militis integro per centum solidos ad plus; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum.

If any of our earls or barons, or others holding of us in chief by military service shall have died, and at the time of his death his heir shall be full of age and owe “relief” he shall have his inheritance on payment of the ancient relief, namely the heir or heirs of an earl, £100 for a whole earl’s barony; the heir or heirs of a baron, £100 for a whole barony; the heir or heirs of a knight, 100s. at most for a whole knight’s fee; and whoever owes less let him give less, according to the ancient custom of fiefs.

Preliminaries concluded, the Charter attacked what was, in the barons’ eyes, the chief of John’s abuses, his arbitrary increase of feudal obligations. The Articles of the Barons, indeed, had plunged at once into this most crucial question without a word by way of pious phrases or legal formulas.

I.

Assessment of Reliefs.

Each “incident” had its own possibilities of abuse, and the Great Charter deals with these in turn. The present chapter defines the reliefs to be henceforth paid to John.1 Vagueness as to the amount due was a natural corollary of doubts as to whether the hereditary principle was binding: the lord took as much as he could grind from the inexperience or timidity of the youthful vassal.

A process of definition, however, was early at work: some conception of a “reasonable relief” was evolved. Yet the criterion varied.2 Henry I., when bidding against duke Robert for the throne, was willing, in words if not in practice, to accept the limits set by contemporary opinion. His Charter of Liberties promised that reliefs should be “just and lawful”—an elastic phrase, liberally interpreted by exchequer officials in their royal master’s favour. When Glanvill wrote the sums to be taken by mesne lords had been fixed; but the Crown remained free to exact higher rates. Baroniae capitales were charged relief at sums which varied juxta voluntatem et misericordiam domini regis.1

Every year, however, made for definition; custom pointed towards 100s. for a knight’s fee, and £100 for a barony. Two entries on the Pipe Roll of 10 Richard I. amusingly illustrate the unsettled practice: £100 is described as a “reasonable relief” for a barony, and yet a second entry records an additional payment by way of “fine” to induce the King to accept the sum his own roll had just declared “reasonable.”1 John was more openly regardless of reason. The Pipe Roll of 1202 shows how an unfortunate heir failed to get his heritage until he paid 300 marks, with the promise of an annual “acceptable present” to the King.2

If John could ask so much, what prevented him asking more? He might name a prohibitive price, and so defeat the hereditability of fiefs altogether. Such arbitrary exactions must end, so the barons were determined in 1215: custom must be defined, so as to prevail henceforth against royal discretion. The first demand of the Articles of the Barons is, “that heirs of full age shall have their heritage by the ancient relief to be set forth in the Charter,” as though the final bargain had not yet been made. Here it is, then, duly set forth and defined as £100 for an “earl’s barony,” £100 for “a baron’s barony,” 100s. for a knight’s fee, and a proportional part of 100s. for every fraction of a knight’s fee. This clause produced the desired effect. These rates were strictly observed by the exchequer of Henry III., as we know from the Pipe Rolls of his reign. Thus, when a certain William Pantoll was charged with £100 for his relief on the mistaken supposition that he had a “barony,” he protested that he held only five knights’ fees, and got off with the payment of £25.3 The relief of a barony was subsequently reduced from £100 to 100 marks. The date of this change, if we may rely on Madox,4 lies between the twenty–first and thirty–fifth years of Edward I.5

Apparently all who paid reliefs to the King were mulcted in a further payment (calculated at 9 per cent. of the relief) in name of “Queen’s Gold,” to the private purse of the Queen Consort, collected by an official representing her at the exchequer.6

The charter here says nothing of socage or serjeanty.7 (a) Socage. The barons were not vitally interested in socage, that being, in the normal case, the tenure of humbler men.1 In later reigns the King, like an ordinary mesne lord, contented himself with one year’s rent of socage lands in name of relief. (b) Serjeanty. The barons cannot have been indifferent to the fate of serjeanties, since many of them held great estates by such tenures. Possibly they assumed that the rules applied to knights’ fees and baronies would apply to serjeanties as well. The Crown acted on quite a different view; large sums were frequently extorted by Henry III. By the reign of Edward I., however, the exchequer limited itself to one year’s rent2 for petty serjeanties, which thus fell into line with socage.3

II.

Units of Assessment.

Some explanation is required of the three groups into which Crown estates were thus divided—knights’ fees, barons’ baronies, and earls’ baronies.

(1)

Feodum militis integrum.

There is little doubt, in light of evidence accumulated by Mr. Round in his Feudal England, that William I. stipulated verbally for the service of a definite number of knights from every fief bestowed by him on his Norman followers. A knight’s fee (or scutum) became the measure of feudal assessment: servitium unius militis was a well–known legal unit. But difficult problems emerge when it is asked what equation, if any, existed between land and service. Unsuccessful attempts have been made to identify the knights’ fee with a fixed area of five hides on the one hand, or with a fixed annual value of £20 upon the other. Prof. Vinogradoff4 has shown conclusively that no fixed ratio exists. Fees have been found as small as one hide and as large as 48; and they vary in value from place to place, as well as from reign to reign. William I. allowed himself a wide discretion in saddling estates with service: favoured foundations like Gloucester and Battle Abbey enjoyed complete exemption. Yet he did not distribute burdens in pure wantonness; and the majority of holdings approximated to a normal standard of extent and value. Under Henry II. two types appear, the larger of 16 marks and the smaller of 10. Under Edward I. a general appreciation of values seems to have raised the former standard to £20.1

The Crown tenant’s holding consisted of a fixed number of knights’ fees—usually a multiple of five (a troop of ten mounted soldiers forming the military unit of the Norman Kings); and each fee, whatever might be its acreage or rental, owed the service of one knight. Each fee, under the Great Charter, paid relief at 100s., unless the estate, of which it formed part, was reckoned as a barony.

(2)

Baronia integra.

The word “barony” has undergone many changes.2 A “barony” at the Norman Conquest differed in almost every respect from a “barony” at the present day. The word baro was originally synonymous with homo, meaning, in feudal usage, a vassal of any lord. It soon became usual, however, to confine the word to king’s men; “barones” were identical with “crown tenants”—a considerable body at first; but a new distinction arose (possibly as a consequence of the procedure for summoning them to a Great Council as stipulated for in chapter 14 of Magna Carta) between the great men and the smaller men (barones majores and minores). The latter were called knights (milites), while “baron” was reserved for the greater tenants.3 For determining what constituted a “barony,” however, it was impossible to lay down any absolute criterion. Mere size was not sufficient. Under Henry II. baronies still paid relief at the King’s good pleasure.1 Richard and John were more rapacious than their father. John, indeed, forced William de Braose, who was heir to the barony of Limerick, to promise a relief of 5000 marks—a sum he was quite unable to pay.2 Magna Carta, here not merely declaratory, but making an addition to existing custom, fixed £100 as the relief for a full barony (a sum afterwards reduced to 100 marks) irrespective of size or value.3

(3)

Baronia comitis integra.

Where a modern eye expects to find “earldom,” the text reads “earl’s barony.”4 But “earldom” originally meant an office, the chief magistracy of a county, not a title of dignity nor the ownership of land: whereas “relief” was due for the land, not the office. Therein lies also the explanation why the earl originally paid no more for his barony than the baron paid for his.

The position of an earl under the Norman Kings had been something far different from a modern “earldom”: it did not pass, as matter of course, from father to son without the King’s confirmation; it did not carry with it any right to demand entry to the King’s Council; it was not one of several “steps in the peerage,” a conception that did not then exist.5

The policy of the Conqueror had been to bring each county as far as possible under his own direct authority; many districts had no earls, while in others the connection of an earl with his titular shire was reduced to a shadow, the only points of connection being the right to enjoy “the third penny” (that is, the third part pro indiviso of the profits of the county court) and the right to bear its name. It is true that, in addition, the earl usually held valuable estates in the shire, but he did this only as any other land–owner might. For purposes of taxation the whole of his lands were reckoned as one unit, here described as baronia comitis integra, the relief on which was taxed at £100.

Very gradually, in after ages, the conception of an earldom suffered change. The official character made way for the idea of tenure, and later on for the modern conception of a hereditary dignity conferring rank and privileges. The period of transition, when the tenurial idea prevailed, is illustrated by the successful attempt of Ranulf, earl of Chester and Lincoln, in the reign of Henry III. to dispose of one of his two earldoms—described by him as the comitatus of Lincoln.1 Earls are now, like barons, created by letters patent, and need not be land–owners. Thus the words “barony” and “earldom,” so diverse in their origin and early development, became closely united in their later history.

III.

Liability of Church Property to “Relief.”

The Charter of John, unlike that of Henry I., makes no mention of the lands of vacant sees in this connection, probably because the main question had long been settled in favour of the church. The position of a bishopric was, however, a peculiar one: each prelate was a Crown tenant, and his fief was reckoned a “barony,” entitling its owner to all the privileges, and saddling him with all the feudal obligations of a baron.2

It was not unnatural that, when a prelate died, the Crown should demand “relief” from his successor. Thus, in 1092, Herbert Losinga paid £1000 of relief for the see of Thetford, an act of simony for which his conscience pricked him. Such demands met with bitter opposition. The Crown, unwilling to forego its feudal dues, endeavoured to shift their incidence from the revenues of the see to the shoulders of the feudal under–tenants. After bishop Wulfstan’s death on 18th January, 1095, a writ was issued in William’s name to the freeholders of the see of Worcester, calling on each of them to pay, as a relief due on their bishop’s death, a specified sum, assessed by the barons of exchequer.1

In revenge for such extortions, the historians of the day, recruited from the clerical class, have heartily commended Rufus and Flambard to the opprobrium of posterity. Henry I., in his coronation Charter, promised to exact nothing during vacancies from the demesne of the church or from its tenants.2 No corresponding promise was demanded from John, a proof that such exactions had ceased. The Crown no longer extorted relief from church lands, although wardship was, without protest, enforced during vacancies.

CHAPTER THREE.

Si autem heres alicujus talium fuerit infra etatem et fuerit in custodia, cum ad etatem pervenerit, habeat hereditatem suam sine relevio et sine fine.

If, however, the heir of any one of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age.

The Crown is here forbidden to exact relief where it had already enjoyed wardship. It was hard on the youth, escaping from leading–strings, to be met, when he “sued out his livery,” with the demand for a large relief by the exchequer which had appropriated all his revenues.1

Such double extortion had long been forbidden to mesne lords; Magna Carta was extending similar limitations to the King. The grievance complained of had been intensified by an unfair expedient which John sometimes adopted. In cases of disputed succession he favoured the claims of a minor, enjoyed the wardship, and thereafter repudiated his title altogether, or confirmed it only in return for an exorbitant fine. The only safeguard was to provide that the King should not enjoy wardship until he had allowed the heir to perform homage, which pledged the King to “warrant” the title against all rival claimants. This expedient was actually adopted in the revised Charter of 1216.2

The alterations in that reissue were not altogether in the vassal’s favour. Another addition made a reasonable stipulation in favour of the lord, which illustrates the theory underlying wardship. Only a knight was capable of bearing arms; hence, the lord held the lands in ward until the minor should reach man’s estate. Ingenious attempts had apparently been made to defeat these legitimate rights of feudal lords by making the infant heir a “knight,” thus cutting away the basis on which wardship rested. The reissue of 1216 provided that the lands of a minor should remain in wardship, although he was made a knight.3 Incidentally, the same Charter declared twenty–one years to be the period at which a military tenant came of age, a point on which John’s Charter is silent.

In one case, exceptionally, wardship and relief might both be exacted on account of the same death, though not by the same lord. Where the dead man had formerly held two estates, one of the Crown and one of a mesne lord, the Crown might claim the wardship of both, and then the disappointed mesne lord was allowed to exact relief as a solatium for his loss.1

CHAPTER FOUR.

Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de terra heredis nisi racionabiles exitus, et racionabiles consuetudines, et racionabilia servicia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de exitibus respondeant nobis vel ei cui eos assignaverimus; et si dederimus vel vendiderimus alicui custodiam alicujus talis terre, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis respondeant sicut predictum est.

The guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waste of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible for the issues to us or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to anyone and he has therein made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid.

This chapter and the next treat of wardship,1 a muchhated feudal incident, which afforded opening for grave abuses. It is a mistake, however, to regard its mere existence as an abuse: it seems to have been perfectly legal in England from the date of the Norman Conquest, although some writers2 consider it an innovation devised by William Rufus and Flambard. Their chief argument is that Henry I., in promising redress of several inventions of Rufus, promised also to reform wardship. This shows that wardship was abused, but does not prove it an innovation.

The Charter of Henry committed him to drastic remedies, which would have altered the character of wardship altogether. Clause 4 of that document removed from the lord’s custody both the land and the person of the heir, and gave them to the widow of the deceased tenant (or to one of the kinsmen, if such kinsman had, by ancient custom, rights prior to those of the widow).3 This was one of the many promises which the “lion of justice” never kept. Wardship continued to be exercised as before, over lay fiefs, throughout the reigns of Henry I. and Stephen. Article 4 of the Assize of Northampton (1176) merely confirmed the existing practice when it allowed wardship to the lord of the fee.4 The barons in 1215 made no attempt to revert to the drastic remedies of the Charter of Henry I., although the evils complained of had become worse under John’s misgovernment.

It must be remembered that “wardship” placed the property and person of the heir at the mercy of the Crown. Even if the popular belief as to the fate met by prince Arthur at his uncle’s hands was unfounded, John was not the guardian to inspire confidence in the widowed mother of a Crown tenant whose estates the King might covet. Further, the King might confer the office, with the delicate issues involved, upon whomsoever he would. When such a trust was abused, it was difficult to obtain redress. In 1133, a guardian, accused de puella quam dicitur violasse in custodia sua, paid a fine to the Crown, if not as hush money, at least in order to obtain protection from being sued elsewhere than in the Curia Regis.1

Guardians were of two kinds. The King might entrust the lands to the sheriff of the county where they lay (or to one of his bailiffs), such sheriff drawing the revenues on the Crown’s behalf, and accounting in due season at the exchequer. Alternatively, the King might make an out–and–out grant of the office, with all its profits, to a royal favourite or the highest bidder. Commentators of a later date2 apply the word “committee” to the former type of guardian, reserving “grantee” for the latter. This distinction, mentioned by Glanvill,3 obtains recognition in this passage of the Charter. Neither type was likely to have the interests of the minor at heart. They had always strong inducements to exhaust the soil, stock, and timber, uprooting and cutting down whatever would fetch a price, and replacing nothing. The heir too often found impoverished lands and empty barns.

William Marshal’s experience affords apt illustration. Early in Richard’s reign, he married Isabel of Clare, but John, Dominus Hiberniae, refused seisin of the bride’s Irish lands. When Richard was appealed to, John tried to make conditions: “provided the grants of lands I have made to my men hold good and be confirmed,” to which the King aptly replied: “That cannot be: for what would then remain to him, seeing that you have given all to your people?”4

The remedies proposed by Magna Carta were too timid and half–hearted; yet something was effected. It was unnecessary to repeat the recognized rule that the minor must receive, out of the revenues, maintenance and education suited to his station; but the Crown was restrained by chapter 3 from exacting relief where wardship had already been enjoyed; chapter 37 forbade John to exact wardship in certain cases where it was not legally due; while here in chapter 4 an attempt was made to protect the estate from waste.

The promised reforms included a definition of “waste”; punishment of the wasteful guardian; and protection against repetition of the abuse. Each of these calls for comment. (1) The definition of waste. The Charter uses the words “vastum hominum vel rerum” (a phrase which occurs also in Bracton).1 It is easy to understand waste of goods; but what is “waste of men”? An answer may be found in the “unknown Charter of Liberties,”2 which binds guardians to hand over the land to the heir “sine venditione nemorum et sine redemptione hominum.” To enfranchise villeins was one method of “wasting men.” The young heir, when he came to his estates, must not find his praedial serfs emancipated.3 In 1259, the Provisions of Westminster (c. 20) forbade “farmers” to make waste, or sale, or exile, of woods, or houses, or men. The statute of Marlborough placed such defaulters at the King’s mercy.

(2) Punishment of wasteful guardians. The Charter provides appropriate punishment for each of the two types of guardian. John promises to take “amends,” doubtless of the nature of a fine, from the “committee” who had no personal interest in the property; while the “grantee” is to forfeit the guardianship, thus losing a valuable asset for which he had probably paid a high price. While the Statute of Westminster1 merely repeated the words of Magna Carta, the Statute of Gloucester2 enacted that the grantee who had committed waste should not only lose the custody, but should, in addition, pay to the heir any balance between the value of the wardship thus forfeited and the total damage. More severe penalties were found necessary. Statute 36 Edward III (c. 13) enacted that King’s escheators, guilty of waste, should “yield to the heir treble damages.” If the boy was still a minor, his friends might bring a suit on his behalf; or after he was of full age he might bring it on his own account.3

(3) Provision against recurrence of the waste. It was only fair that reasonable precautions should be taken to prevent the heir who had already suffered hurt, from being similarly abused a second time. John promised to supersede the keeper guilty of waste, by two trustworthy free–holders on the heir’s estate. These men, from their local and personal ties to the young heir, might be expected to deal tenderly with his property. The “unknown Charter” proposed a more drastic remedy: the lands were to be entrusted at once to four knights of the fief, without waiting until damage had been done. Even the milder provision of Magna Carta was an innovation, and there is no evidence that it was ever put in force.

CHAPTER FIVE.

Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos, vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de exitibus terre ejusdem; et reddat heredi, cum ad plenam etatem pervenerit, terram suam totam instauratam de carrucis et waynagiis, secundum quod tempus waynagii exiget et exitus terre racionabiliter poterunt sustinere.

The guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks,1 fishponds, stanks,2 mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and “waynage,”3 according as the season of husbandry shall require, and the issues of the land can reasonably bear.

These stipulations form the complement, on the positive side, of the negative provisions of chapter 4. It was not sufficient to prohibit acts of waste; the guardian must keep the estates in good repair.

I.

The Obligations of the Warden of a Lay–fief.

It was the duty of every custodian to preserve the lands from neglect, together with all the usual equipment of a medieval manor. Outlay thus required formed, in modern language, a first charge on the revenues, before the balance was appropriated by the “grantee,” or paid to the exchequer by the “committee.”

This clause expands and improves the corresponding Article of the Barons; but the obligation to restore the land and its appointments “in as good order as the revenues would bear” came to be regarded as too stringent, obliging the guardian to use up surplus revenue in repairing waste committed in the time of the deceased. Henry’s charters modified this: the guardian need only hand over the land and appointments in as good condition as he had received them.4

New methods of abusing wardship were invented after Magna Carta. The Statute of Marlborough (c. 16) gave to a ward, kept out of his heritage, an action of mort d’ancestor against a mesne lord, but not against the Crown.1 The Statute of Westminster I. (c. 48) narrates that heirs were often carried off bodily to prevent them raising actions against guardians. The whole subject was regulated in 1549 by Statute 32 Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the expensive and dilatory procedure of which caused increasing discontent, until an order of both Houses of Parliament, dated 24th February, 1646, abolished it along with “all wardships, liveries, primer seisins, and ouster les mains.”2 This ordinance was confirmed at the Restoration by Statute 12 Charles II. c. 24.3

II.

Wardships over Vacant Sees.

The church had its own grievances. The Constitutions of Clarendon4 had stipulated that each prelate should hold his Crown land sicut baroniam; and this view ultimately prevailed. It followed that all appropriate feudal burdens affected church fiefs equally with lay fiefs. The lands of a see were, however, the property of an undying corporation (to use the language of a later age): a minority was impossible, and therefore, so it might be argued, wardships could never arise. Rufus objected to this reasoning, and devised a substitute for ordinary wardships by keeping sees long vacant, and meanwhile appropriating the revenues. Henry I., while renouncing all pretensions to exact reliefs, retained his right of wardship, promising merely that vacant sees should neither be sold nor farmed out. Stephen went further, renouncing expressly all wardships over church lands; but Henry II. ignored this concession, and reverted to the practice of his grandfather. In his reign the wardship of the rich properties of vacant sees formed a valuable asset of the exchequer. During a vacancy the Crown drew not only the rents and issues of the soil, but also the various feudal payments which the under–tenants would otherwise have paid to the bishop. The Pipe Roll of 14 Henry II.1 records “reliefs” of £30 and £20 paid by tenants of the vacant see of Lincoln for six and four knights’ fees respectively.2

John reserved his wardships in his charter to the church; and Stephen Langton thought, perhaps, it was unnecessary to press for their renunciation, since the promise not to delay elections would render such wardship unprofitable.3

The omission was supplied in 1216, when the provisions applicable to lay fiefs were extended to vacant sees, with the added proviso that church wardships should never be sold.

These provisions were supplemented by later acts. An Act of 14 Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a vacant see a right to pre–emption of the wardship at a fair price. If they failed to exercise this, the King’s right to appoint escheators or other keepers was confirmed, but under strict rules as to waste.

CHAPTER SIX.

Heredes maritentur absque disparagacione, ita tamen quod, antequam contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius heredis.

Heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice.

The Crown’s right to regulate the marriages of wards had become an intolerable grievance. The origin of this feudal incident and its extension to male as well as female minors have been elsewhere explained.4 John made a regular traffic in the sale of wards—maids of fourteen and widows alike. The Pipe Roll of John’s first year5 records how the chattels of Alice Bertram were sold because she refused “to come to marry herself” at the King’s summons. Only two expedients were open to those who objected to mate with the men to whom John sold them. They might take the veil, become dead in law, and forfeit their fiefs to escape the burdens inherent in them; or they might outbid objectionable suitors. Brief entries in John’s Exchequer Rolls condense many a tragedy. In his first year, the widow of Ralph of Cornhill offered 200 marks, with three palfreys and two hawks, that she might not be espoused by Godfrey of Louvain, but remain free to marry whom she chose, and yet keep her lands. This was a case of desperate urgency, since Godfrey, for love of the lady or of her lands, had offered 400 marks, if she could show no reason to the contrary. It is satisfactory to learn that the lady escaped.1

Sometimes John varied his practice by selling, not the woman herself, but the right to sell her. In 1203 Bartholomew de Muleton bought for 400 marks the wardship of the lands and heir of a certain Lambert, along with the widow, to be married to whom he would, yet so that she should not be disparaged.2

Great stress was placed on “disparagement”—that is, forced marriage with one not an equal. William of Scotland, by the treaty of 7th February, 1212, conferred on John the right to marry prince Alexander to whom he would, “but always without disparagement.”3 Such proviso was understood where not expressed. It is not surprising, then, to find it confirmed in Magna Carta. The Articles of the Barons had, indeed, demanded that a royal ward should only be married with consent of the next of kin. In our text, this is softened down to the mere intimation of an intended marriage: the opportunity was still afforded of protesting against an unsuitable match. Insufficient as the provision was, it was omitted from the reissues of Henry’s reign. The sale of heiresses went on unchecked.

Magna Carta made no attempt to define disparagement, but the Statute of Merton4 gave two examples,—marriage to a villein or a burgess. This was not an exhaustive list. Littleton1 adds other illustrations:—“as if the heir that is in ward be married to one who hath but one foot, or but one hand, or who is deformed, decrepit, or having an horrible disease, or else great and continual infirmity, and, if he be an heir male, married to a woman past the age of childbearing.” Plenty of room was left for forcing on a ward an objectionable spouse, who yet did not come within the law’s definition of “disparagement.” The barons argued in 1258 that an English heiress was disparaged if married to anyone not English born.2

Was it in the power of the far–seeing father of a prospective heiress, by bestowing her in marriage during his own life–time, to render nugatory the Crown’s right to nominate a husband? Not entirely: the Charter of Henry I. reserved the King’s right to be consulted by the barons before they bestowed the hand of female relations in marriage. Magna Carta is silent on the point. Bracton3 thus explains the law:—No woman with an inheritance could marry without the chief lord’s consent, under pain of losing such inheritance; yet the lord when asked was bound to grant consent, if he failed to show good reason to the contrary. He could not, however, be compelled to accept homage from an enemy or other unsuitable tenant. The Crown’s rights in such matters were apparently the same as those of a mesne lord.4

CHAPTER SEVEN.

Vidua post mortem mariti sui statim et sine difficultate habeat maritagium et hereditatem suam, nec aliquid det pro dote sua, vel pro maritagio suo, vel hereditate sua quam hereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua.

A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for forty days after his death, within which time her dower shall be assigned to her.

No forethought of a Crown tenant, setting his house in order, could rescue his widow from the unfortunate position into which his death would plunge her. He must leave her without adequate protection against the tyranny of the King, who might inflict terrible hardships by harsh use of rights vested in him for the safeguard of his feudal incidents. She might, if deprived of her “estovers,” find herself in actual destitution, until she had made her bargain with the Crown. She had a right, indeed, to one–third of the lands of her husband (her dos rationalis) in addition to any lands she might have brought as a marriage portion; but she could only enter into possession by permission of the King, who had prior claims and could seize everything by his prerogative of primer seisin.1 This chapter provides a remedy. Widows shall have their rights without delay, without difficulty, and without payment.

I.

The Widow’s Share of Real Estate.

Three words are used:—dos, maritagium, and hereditas.

(1)

Dower.

A wife’s dower is here the portion of her husband’s lands set aside to support her in her widowhood. It was customary from an early date for a bridegroom to make provision for his bride on the day he married her. The ceremony formed a picturesque feature of the marriage rejoicings, taking place literally at the church door, as man and wife returned from the altar. The share thus set apart for the young wife was known as her dos (or dowry), and would support her if her husband died. In theory, the transaction between the spouses partook of the nature of a contract. The wife’s rôle, however, was a passive one: her concurrence was assumed. Yet, if no provision was made at all, the law stepped in, on the presumption that the omission had been unintentional, and fixed the dower at one–third of all his lands.1

John’s Magna Carta contents itself with the brief enactment “that a widow shall have her dower.” The Charter of 1217 goes farther, containing an exact statement of the law as it then stood:—“The widow shall have assigned to her for her dower the third part of all her husband’s land which he had in his lifetime unless a smaller share had been given her at the door of the church.” Lawyers of a later age have, by a strained construction of the words in vita sua, made them an absolute protection to a wife against all attempts to lessen her dower by alienations granted without her consent during the marriage.2 Magna Carta contains no warrant for such a proposition, although a later clause (chapter 11) secures dower lands from attachment by the husband’s creditors, Jews or others.

(2)

Maritagium.

It was customary for a land–owner to bestow marriage portions on his daughters. Land so granted was usually relieved from burdens of service and homage. It was hence known as “frank–marriage” (liberum maritagium), which almost came to be recognized as a separate form of feudal tenure. Such grants could be made without the consent of the tenant’s expectant heirs. Maritagium was thus “a provision for a daughter—or perhaps some other near kinswoman—and her issue.”1 The husband was, during the marriage, treated as virtual owner; but, on his death, the widow had an indisputable title.

The obvious meaning, however, has not always been appreciated. Coke2 reads the clause as allowing to widows of under–tenants a right denied (by chapter 8) to widows of Crown tenants—namely “freedom to marry where they will without any licence or assent of their lords.” This interpretation is inherently improbable, since the barons at Runnymede desired to place restrictions on the King, not upon themselves; and it is opposed to the law as expounded by Bracton.3

Daines Barrington4 invents an imaginary rule of law in order to explain a supposed exception. An ordinary widow, he declares, could not marry again within a year of her husband’s death, but widows of landowners were privileged to cut short this period of mourning. “Maritagium” is thus interpreted as a landowning widow’s right of speedily entering on second nuptials. This is a complete inversion of the truth; the possession of land really restricted freedom of marriage. Yet several later authorities follow Barrington’s mistake.5 This is the more inexcusable in view of the clear explanation given a century ago by John Reeves,6 who distinguished between two kinds of marriage portion: liberum maritagium, whence no service whatever was exigible for three generations, and maritagium servitio obnoxium, liable to the usual services from the first, although exempt from homage until after the death of the third heir.1

(3)

Hereditas.

Is the third item here mentioned simply another name for either dos or maritagium? Or, is it something different? It is possible that “the inheritance which her husband and she held on the day of the death of that husband” denotes lands that had come to the lady as heiress on the decease of relations, not as a gift at her marriage. Such lands might be described as held by both spouses; for a husband might even attend Parliament as a baron on the strength of his wife’s barony.

II.

The Widow’s Share of Personal Estate.

The present chapter says nothing of the widow’s “peculiar” or share of her deceased husband’s money and chattels; but chapter 26 secured to her the portion of one third allowed her by the existing law.

III.

Provision for the Widow’s immediate Needs.

Intricate questions might arise before the land was divided into aliquot portions. Meanwhile, temporary provision must be made for her support. This was of two kinds:

(1)

Quarantine.

Magna Carta confirmed her right to the family home for forty days, known to later lawyers as the widow’s quarantine. The charter of 1216 notes an exception, on which John’s Charter is silent: if the husband’s place of residence had been a castle, the widow could not stay there; feudal strongholds were not for women. In such cases another residence must be substituted. In later days, widows were provided with a writ, “de quarentina habenda,” directing the sheriff to do her right.2

(2)

Estovers of Common.

The widow required more than the protection of a roof; until her dower lands had been assigned to her, no portion of the produce of her husband’s manors could be strictly called her own. The estate was held “in common” between her and her husband’s heir. It was only fair that, until her rights were ascertained, she should be allowed a reasonable share of the produce. Neither John’s Charter nor the first issue of Henry III. said anything on this head. The reissue of 1217 supplied the omission, expressly confirming her right to rationabile estoverium suum interim de communi. Many explanations of the word estovers might be cited: from Dr. Johnson, who defines it broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it to ”firewood.”1 It was the right to supply one’s personal or domestic wants: this varied in extent from full supply of all things necessary for the maintenance of life, down to a right to take one kind of produce for one specific purpose only.2

In this passage the word bears its wider signification. Such was Coke’s view,3 who held that it implied the widow’s right to “sustenance” of every kind, including the right to kill such oxen on the manor as she required for food. Estovers “of common” should thus be read as extending the widow’s right of consumption for her own and her household’s use over every form of produce held “in common” by her and the heir’s guardian prior to a final division.4 She could not, however, cut down trees.

CHAPTER EIGHT.

Nulla vidua distringatur ad se maritandum dum voluerit vivere sine marito; ita tamen quod securitatem faciat quod se non maritabit sine assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo tenuerit, si de alio tenuerit.

No widow shall be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another.

Wealthy widows were glad to escape from John’s clutches by agreeing to buy up the Crown’s rights for a lump sum. In the year of Magna Carta, Margaret, widow of Robert fitz Roger, paid £1000;1 and a few years earlier Petronilla, countess of Leicester, had given 4000 marks.2 The Pipe Rolls mention numerous smaller sums; in 1200, Juliana, widow of John of Kilpec, accounts for 50 marks and a palfrey.3 Horses, dogs, and falcons were frequently given in addition to money fines, and testify eloquently to the greed of the King, the anxiety of the victims, and the extortionate nature of the system. In return, formal charters were obtained, a good example of which is that granted to Alice, countess of Warwick, dated 13th January, 1205,4 containing concessions that she should not be forced to marry; that she should be sole guardian of her sons; that she should have one–third part of her late husband’s lands as her reasonable dower; and that she should be quit from attendance at courts of shire and hundred, and from payment of sheriff’s aids during her widowhood. Another charter, of 20th April, 1206, shows what a widow might expect if she failed to make her bargain with the Crown: John granted to Richard Fleming, an alien as his name implies, the wardship of the lands of the deceased Richard Grenvill, with the rights of marriage of the widow and children.1

Magna Carta, in substituting a rule of law for the provisions of these private charters, repeated at greater length the promises made (and never kept) by Henry I. in his coronation charter: no widow was to be constrained to marry against her will. This liberty must not be used, however, to the prejudice of the Crown: the widow could not marry without the King’s consent. Magna Carta provided that she must find security to this effect, an annoying, but not unfair stipulation. The Crown, in later days, compelled the widow, when having her dower assigned to her in Chancery, to swear not to marry without licence under penalty of a fine of one year’s value of her dower.2

CHAPTER NINE.

Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad solucionem debiti; et si capitalis debitor defecerit in solucione debiti, non habens unde solvat, plegii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris, donec sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem plegios.

Neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties.

The Charter passes to another group of grievances. Chapters 9 to 11 treat of debts, usury, and the Jews, and should be read in connection with chapter 26, which regulates procedure for attaching personal estate of deceased Crown tenants who were also Crown debtors. The present chapter, although general in its terms, had special reference to cases where the Crown was creditor; while the two following chapters treat more particularly of debts contracted to money lenders.

The fact that John’s subjects were indebted to his Exchequer did not imply that they had borrowed from the King. What with feudal incidents and scutages, and indiscriminate fines, a large proportion of Englishmen must have been permanently indebted to the Crown. At John’s accession many northern barons still owed scutages imposed by Richard. John remitted none of the arrears, while imposing new burdens of his own: the attempts made to collect these debts intensified the friction between John and his barons.1

Three rules were laid down. (1) The personal estate of a debtor must be exhausted before his real estate or its revenues were attacked. To take away his land might deprive him of his means of livelihood; for chattels could not yield a permanent revenue.2 This rule has not found a place in modern systems of law, which usually leave the option with the creditor. (2) The estate of the chief debtor had to be exhausted before proceedings could be instituted against his sureties. Magna Carta thus enunciated for English law a rule that has found favour in most systems of jurisprudence. The man who is only a surety for another’s debt is entitled to immunity, until the creditor has taken all reasonable steps against the principal debtor. Such a right is known to the civil law as beneficium ordinis, and to Scots law as the “benefit of discussion.” (3) If these sureties had, after all, to pay the debt in whole or part, they were allowed “a right of relief” against the principal debtor, being put in possession of his lands and rents. This rule has some analogy with the equitable principle of modern law, which gives to the surety who has paid his principal’s debt, the right to whatever the creditor held in security.

Even when the Crown’s bailiffs obeyed Magna Carta, they might still inflict terrible hardship upon debtors. Sometimes they seized goods valuable out of all proportion to the debt; and an Act of 12661 forbade this practice when the disproportion was “outrageous.” Sometimes they attempted to extort prompt payment by selecting whatever chattel was most indispensable: oxen were taken from the plough and allowed to die of neglect. The practice of the Exchequer, in the days of Henry II., had been more considerate; oxen were to be spared as far as possible where other personal effects were available.2 John’s charter has no such humane provision,3 and the abuse continued. The Act of 1266, already cited, forbade officers to drive away the owner who came to feed his impounded cattle at his own expense. The Articuli super cartas4 went further, prohibiting seizure of beasts of the plough so long as other effects might satisfy the debt.5

CHAPTER TEN.

Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit in manus nostras, nos non capiemus nisi catallum contentum in carta.

If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold;1 and if the debt fall into our hands, we will not take anything except the principal sum2 contained in the bond.

Usury, denied by law to Christians, was carried on by Jews under disadvantages and risks. The rates of interest were proportionately high, ranging in normal cases from two to four pence per pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.3 During his nonage a ward had nothing wherewith to discharge either principal or interest, since he who had the wardship drew the revenue. At the end of a long minority, an heir would have found the richest estates swallowed up by a debt which had increased automatically ten or twenty–fold.4

Magna Carta prevented this injustice to the ward; but, in doing so, inflicted some injustice on the money–lenders. During the minority no interest at all, it was provided, should accrue to Jew or other usurer; while, if the debt passed to the Crown, the King must not use his prerogative to extort more than a private debtor might; he must confine himself to the principal sum specified in the document of debt. The provision that no interest should run during minorities was confirmed by the Statute of Merton,1 which made it clear, however, that its provisions should not operate to discharge the principal sum or interest accrued before the ancestor’s death. The Statute of Jewry, of uncertain date,2 made interest irrecoverable by legal process. All previous acts against usury were repealed by the statute 37 Henry VIII. c. 9, which, however, forbade the exaction of interest at a higher rate than 10 per cent., and this remained the legal rate until reduced to 8 per cent. by 21 James I. c. 17.

I.

The History of the Jews in England.

In the policy of the Crown towards aliens of the Hebrew race, three periods may be distinguished. From the Norman Conquest to the coronation of Richard I., the Jews were fleeced and tolerated; during the reigns of Richard and John and the minority of Henry III., they were fleeced and protected; and finally they were fleeced and persecuted, this last stage ending with the ordinance of 1290, which banished Jews from England. The details of this long story of hardship and oppression, tempered fitfully by royal clemency, can be only glanced at here. There were Jews in England before the Norman Conquest; but the first great influx came in the reign of Rufus, whose financial genius recognized in them an instrument for his gain, and who would the more gladly protect them, as likely to prove a thorn in the side of his enemy the Church. A new immigration led to the disarming of Jews in 1181, a measure which left them at the mercy of the Christian rabble.

When a disturbance occurred at the coronation of Richard I., on 3rd September, 1189, a general massacre took place in London. York and other towns were not slow to follow this example. The King was moved to anger, not so much by the sufferings of the Jews, as by the destruction of their bonds; for the more the Jews had, the more could be extorted from them. Richard, returning from captivity a few years later, in urgent need of money, determined to prevent a repetition of such interference with a valuable source of revenue. His motive was selfish, but that was no reason why the Israelites should not pay for a measure designed for their own protection. Assembled at Nottingham, they granted a liberal aid, in return for a new expedient devised to secure their bonds. This scheme,1 for the details of which Richard was probably indebted to the genius of his great justiciar, Archbishop Hubert Walter, was of a comprehensive and practical character. In London, York, and other important cities, offices or bureaus were established under the Crown’s protection, containing treasure chests, called archae, fitted with triple locks, to be opened in presence of custodians, known as chirographers, who kept the keys. These were four in number, two Christians and two Jews, chosen by juries summoned for that purpose by the sheriff; and they were obliged to find sureties. Only in their presence could loans be validly contracted between Jews and Christians; and it was their duty to see such bargains reduced to writing in duplicate copies. No contract was binding unless a written copy or chirograph had been preserved in one or other of those repositories or arks, which thus served every purpose of a modern register, and other purposes as well. If the money–lender suffered violence and was robbed of his copy of the bond, the debtor was still held to his obligations by the duplicate which remained. If the Jew and all his relatives were slain, even then the debtor did not escape, but was confronted by a new and more powerful creditor, the King himself, armed with the chirograph. Lists of transactions were preserved, and all acquittances and assignments of debts, known from their Hebrew name as “starrs,” had to be carefully enrolled.2 Stringent rules, codified by Hubert Walter, were issued to the judges when starting on their circuit in September, 1194.3

If this cunningly–devised system prevented the Christian debtor from evading his obligations, it also placed the Jewish creditor completely at the mercy of the Crown; for the exact wealth of every Jew could be accurately gauged from a scrutiny of the contents of the archae. The King’s officials knew, to a penny, how much it was possible to wring from the coffers of the Jews, whose bonds, moreover, could be conveniently attached until they paid the tallage demanded. The custom of fixing on royal castles as the places for keeping these arks, probably explains the origin of the special jurisdiction exercised over Jews by King’s constables (“qui turres nostras custodierunt”).1 In their dungeons, horrible engines were at hand for enforcing obedience. Such jurisdiction, however, extended legitimately over trivial debts only.2 Important pleas were reserved for the officials of the exchequer of the Jews, a special government department, which controlled and regulated the whole procedure. Evidences of the existence of this separate exchequer have been traced back to 1198, although no record has been found of a date prior to 1218.3 John, while despising the Jews, protected their wealth as a reservoir from which he might draw in time of need. Thus, by a charter dated 10th April, 1201, he took 4000 marks for confirming their privileges; and he obtained a similar amount after his rupture with Rome. The charter of 1201 was only a confirmation of rights already enjoyed by English Jews in virtue of the liberal interpretation put upon the terms of an earlier charter, granted by Henry I. to a particular father in Israel and his household, but subsequently extended, with the tacit concurrence of the Crown, to the whole Hebrew race. Under John’s charter they enjoyed valuable and definite privileges, which exempted them from all jurisdictions except those of the King’s justices and castellans.4

When a repetition of the massacres that had disgraced his brother’s coronation was threatened in 1203, John promptly ordered the mayor of London to suppress all such attempts: his promise of protection, “even though granted to a dog,” must be held inviolate.1 Protection was accorded, however, only that they might furnish a richer booty when the occasion came: suddenly John issued orders for a wholesale arrest of Jews throughout England. The most wealthy members of their community were brought together at Bristol, and, on 1st November, 1210, compelled to give reluctant consent to a tallage of the enormous sum of 66,000 marks. This amount had been fixed as the result of an exaggerated estimate of the contents of the archae, and was more than they could pay. The methods adopted by John’s castellans to extort arrears are well known, especially the case of the unfortunate Jew of Bristol, from whom seven teeth were extracted, one each day, until he consented to pay the sum demanded.2

It was doubly hard that the race thus plundered and tortured by the King should be subjected to harsh treatment by the King’s enemies on the ground that they were pampered protégés of the Crown. Yet such was the case: on Sunday, 17th May, 1215, when the insurgents on their way to Runnymede entered London, they robbed and murdered Jews, using the stones of their houses to fortify the city walls.3 It is not to be wondered, then, that the same insurgents, in forcing on King John the demands that formed the basis of Magna Carta, included provisions against usury.

The advisers of the young Henry in 1216 omitted these clauses, but not from love of the Jews. They were unwilling to impair so useful a source of revenue, which has been compared to a sponge which slowly absorbed the wealth of the nation, to be quickly squeezed dry again by the King. The Jews were always willing to disgorge a portion of their gains in return for protection in the rest; but their lot became hard indeed when Henry III., urged by popular clamour and the wishes of the Pope, began a course of active persecution. In 1253, a severe ordinance inflicted vexatious regulations on the Hebrews, almost converting their quarters in each great city into ghettos, like those of the Continent of Europe.

This was merely the commencement of oppressive measures, the outcome of the growing hatred with which Christians regarded Jews—a result partly of the heated imagination of the rabble, ready to believe unauthenticated stories of the crucifixion of Christian children, and partly of the fact that rich Jews, in spite of all persecution, had possessed themselves of the landed estates of freeholders and barons and claimed to act as lords of Christian tenants, enjoying wardships, escheats, and advowsons, as any Christian might have done. The scope of this enquiry excludes any detailed account of the stages through which repressive legislation passed. The Statute of Jewry, however,1 was of exceptional importance; taking from usurers the right to recover interest by legal process, and limiting execution for the principal to one half of the debtor’s lands and chattels. In return, some temporary concessions were granted. One by one, however, these privileges were again withdrawn, until the end came in 1290 with the issue of a decree of perpetual banishment by Edward I., who was compelled to sacrifice his royal preserve of Jews, in deference to national prejudice.

II.

Legal Position of the Jews.

All through these vicissitudes of fortune, the legal status of the Jews had remained unchanged in essentials. Their position was doubly hard; they were plundered by the Crown and persecuted by the populace. If John saved them from being robbed by his Christian subjects, it was that they might be better worth the robbing by a Christian king. Yet, for this protection, at once fitful and interested, the Jews had to pay a heavy price; not only were they liable to be tallaged arbitrarily at the King’s will, without limit and without appeal, b