The Online Library of Liberty

A project of Liberty Fund, Inc.

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

CHAPTER TWENTY–SIX.

Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel ballivus noster ostendat litteras nostras patentes de summonicione nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare, et inbreviare catalla defuncti, inventa in laico feodo, ad valenciam illius debiti, per visum legalium hominum, ita tamen quod nichil inde amoveatur, donec persolvatur nobis debitum quod clarum fuerit; et residuum relinquatur executoribus ad faciendum testamentum defuncti; et, si nichil nobis debeatur ab ipso, omnia catalla cedant defuncto, salvis uxori ipsius et pueris racionabilibus partibus suis.

If any one holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed to us, it shall be lawful for our sheriff or bailiff to attach and catalogue chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of law–worthy men, provided always that nothing whatever be thence removed until the debt which is evident1 shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares.

The primary object of this chapter was to regulate the procedure to be followed in attaching the personal estates of Crown tenants who were also Crown debtors. Incidentally, it throws light on the right of bequeathing property.

I.

Nature of the Grievance.

When a Crown tenant died it was almost certain that arrears of scutages, incidents, or other exactions remained unpaid. The sheriff and bailiffs of the district, where deceased’s estates lay, were in the habit of seizing everything they could find on his manors, under excuse of securing the interests of their royal master. They attached and sold chattels out of all proportion to the sum actually due. A surplus would often remain in the sheriff’s hands, which he refused to disgorge.

Magna Carta sought to make such irregularities impossible, by defining the procedure to be followed. The sheriff and his bailiffs were forbidden to touch a single chattel of a deceased Crown tenant, unless they came armed with legal warrant in the form of royal letters patent vouching the existence and the amount of the Crown debt. The officers of the law were allowed to attach only as many chattels as might reasonably be expected to satisfy the debt due to the exchequer; and everything so taken must be carefully inventoried. All this was to be done “at the sight of lawful men,” respectable, if humble, neighbours specially summoned for that purpose, whose function it was to form a check on the actions of the sheriff’s officers, to prevent them from appropriating anything not included in the inventory, to assist in valuing each article and to see that no more chattels were distrained than necessary. A saving clause protected the interests of the Crown by forbidding the removal from the tenant’s fief of any chattels, even those not so attached, until the full ascertained amount had been paid to the exchequer. Not till then could a division take place among the deceased man’s relatives or legatees.

These provisions should be read in connection with chapter 9,1 which provided that diligence for Crown debts must proceed against personal estate before the debtor’s freehold was distrained, and laid down other equitable rules applicable alike to a deceased Crown debtor and to a living one.

II.

The Right to Bequeath.

The main interest of this chapter, for the historian of law and institutions, lies in a different direction; in the light thrown on the right of making Wills in 1215. The early law of England had difficulty in deciding how far it ought to acknowledge the claims made by owners of property, both real and personal, to direct its destination after death. Various influences were at work, prior to the Norman Conquest, to make the development of this branch of law illogical and capricious.2 Of the law of bequests in the twelfth century it is possible to speak with greater certainty; definite principles had by that time received recognition. All testamentary rights over land or other real estate were then denied, not, as has sometimes been maintained, in the interests of the feudal lord, but rather of the expectant heir.3 Many reasons contributed to this result. For one thing, it had become necessary to prevent churchmen from using their spiritual influence to wring bequests from dying men to the impoverishment of the heir. Churchmen, in compensation as it were for the obstacles thus opposed to their thirst for the land of the dying, ultimately, but not before the reign of Henry III., made good their claim to regulate all Wills dealing with personal estate; that is money, goods, and chattels.

Under Henry II. no such right had been admitted. The Assize of Northampton (1176) directed that heirs should divide the chattels according to the provisions made in the Will, without any reference to the supervision of the bishop or his clergy. Glanvill twice gives a writ directing the sheriff to uphold the Will of a testator; but no trace of any similar writ appears in the Registers of the early years of Henry III.: “the state has had to retreat before the church.”1

This victory of the ecclesiastical courts was probably won shortly after 1215. John’s Charter makes no admission of any right of the church in the “proving” of Wills; but it does admit (in chapter 27) the church’s right to “superintend” the division of the goods of intestates, an insidious privilege, which was used as a lever during the minority of Henry (a ward of Holy See), and thus helped to give the courts Christian an excuse for deciding also as to the validity of Wills. It was apparently in John’s reign that the practice of appointing executors to carry out the Will of the deceased became general. Henry II. in his own case had entrusted this duty to individuals whom he named, but did not describe as “executors,” a word, however, used in its technical sense in King John’s Will.2

John claimed that his subjects could not make valid Wills without his consent, which had, as usual, to be paid for. Such, at least, is the inference to be drawn from the existence of writs granting licences to make a Will, or confirming one that had been made.3 The King’s interference in this province seems to have been regarded as an illegal encroachment.

Magna Carta declares that all the chattels (or the residue after paying Crown debts) “shall go to the deceased” for “the executors to fulfil the will of the deceased,” but immediately adds the saving clause, that “all the chattels” means only what remains after deducting the “reasonable shares” of wife and children. This seems to exclude, by implication, the King’s right to interfere on the plea that he had not licensed a Will, while it keeps alive an ancient rule that a testator could only dispose of part of his pecunia (or personal estate), his widow and children having absolute claims to the rest.

The Charter did not define these “reasonable shares”; but custom had already fixed them at the same proportions of the whole as the law of Scotland observes at the present day. When a Scotsman dies, leaving wife and children, his movable or personal estate falls into three equal parts, known respectively as the widow’s part (or jus relictae), the “bairns’ ” part (or legitim, the legitima portio of the Roman law), and “the dead’s part.”1 If he attempts to dispose of his entire estate, wife and children may claim their legal rights, and “break the Will.” Where a wife survives, but no children (or a child and no wife), the division is into two equal portions. Magna Carta recognizes a similar division; and we know from Glanvill that, if the dead man’s Will had attempted to defeat the just claims of wife or children, the writ de rationabili parte bonorum would give them relief.2

The conception of a “dead’s part” or portion to be dispensed in charity and good works for the benefit of the deceased’s soul was, of course, in great measure due to the influence of the church, which was not unwilling to stimulate the belief that one of the best methods of affecting this was to leave money to itself. Under Henry III. the bishop of the diocese made good his claim to “prove” Wills (that is to determine whether they were valid), and to control the “executors” in carrying out the dead man’s instructions. Where the testator’s intentions were ambiguous, the “ordinary” would see to it that deceased’s soul did not suffer through giving too little to the church.

The reissue of 1216 makes no alteration on this chapter of John’s Charter: that of 1217 omits “et pueris,” probably through a clerical blunder, for the words were restored in 1225. As mere disuse does not abrogate an English statute, this provision remained in force until repealed by implication by the Wills Act of 1837.1

Long subsequent to the thirteenth century, the laws of England and Scotland as to the rights of succession of wife and children seem to have remained identical: but, while Scots law is unaltered to the present day, English law has, by slow steps, the details of which are obscure, entirely changed. The rule that acknowledged the children’s right to one third of the personal estate was gradually relaxed, while the testator became sole judge what provision he ought to make for his sons, until at last a purely nominal sum of money was all that was required. The law of England, at the present day, does not compel a father to leave son or daughter even the proverbial shilling. The phrase “to cut off a son with a shilling,” which still lives in popular usage, may perpetuate the tradition of an intermediate stage of English law, where some provision, however inadequate, had to be made, if the Will was to be allowed to stand.

[1 ]Cf. the use of the phrase “a liquid debt” in Scots law.

[1 ]Cf. what is there said of the sheriff’s oppressions.

[2 ]The subject is discussed by Pollock and Maitland, II. 312–353. See also Holdsworth, III. 418 ff.; Makower, Const. Hist. Church, 427 ff.

[3 ]See Pollock and Maitland, II. 324.

[1 ]Maitland, Coll. Papers, II. 139.

[2 ]Holdsworth, III. 418 ff.

[3 ]On 30th August, 1199 (New Rymer, I. 78) John confirmed the testament of Archbishop Hubert Walter; and on 22nd July, 1202 (ibid., I. 86), he granted permission to his mother, the dowager Queen Eleanor, to make a will.

[1 ]Cf. “tota pars sua de pecunia sua” in Burton Abbey Surveys (cited by Round, Engl. Hist. Rev., XX. 279); Bateson, Borough Customs, II. xcvi.

[2 ]Glanvill, VII. 7.

[1 ]See Law Magazine, Oct. 1905.