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–SEVEN.

Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum parentum et amicorum suorum, per visum ecclesie distribuantur, salvis unicuique debitis que defunctus ei debebat.

If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under supervision of the church, saving to every one the debts which the deceased owed to him.

Here the Great Charter proceeds to remedy an evil connected with intestate succession, a natural sequel to the subject of testate succession.1 In light of subsequent history, the words most worthy of notice are probably “per visum ecclesiae,” which appear also in the Articles of the Barons. There were good reasons for welcoming the intervention of the bishop’s court as a substitute for the scramble that often took place for an intestate’s chattels; but the jurisdiction thus gained by the church was quickly put to other uses.

The placing of this powerful weapon in the hands of the church was only incidental to the main purpose of this chapter. This was (while safeguarding the interests of creditors) to secure to the deceased’s kinsmen and friends the right to make an equitable division of his chattels. By implication the Charter says “hands off” to John, and indeed to any lord superior, whether the King or another.

In the Middle Ages all classes of men, good and bad alike, exhibited an extreme horror of dying intestate.2 Several causes contributed towards this frame of mind. Churchmen, from motives not unmixed, inculcated the belief that a dying man’s duty was to leave part at least of his personal estate for religious and charitable objects. The bishop or priest, who had power to withhold extreme unction from dying men, was in a strong position to force advice upon penitents who believed the church to hold the keys of heaven. Motives of a more worldly nature lent their weight. If a man died intestate, his lord seized his chattels. Henry I. in his Coronation Charter renounced this right over Crown tenants under certain circumstances: if a baron or “man,” cut off by war or infirmity (the words have a grudging, hesitating sound), had given no instructions for disposal of his pecunia, his wife and children and legitimi homines (or vassals) should divide it “for his soul” as seemed best to them.3 Stephen, in his second or Oxford Charter,1 gave up all such claims, as regards the property of prelates and clerks, who were confirmed in their rights of making Wills.

These promises were not kept: in Glanvill’s day, the King, like other feudal lords, appropriated the goods of intestates.2 Henry II. continued to treat intestacy, especially in the case of clerks, as an excuse for forfeiture.3 Magna Carta contained a clear pronouncement against this practice. The kinsmen and friends of the deceased, without royal interference, were to divide the chattels under supervision of the church: the King’s courts were excluded. No scheme of intestate succession was set forth; but where wife and children survived, the tripartite division was clearly implied. In the distribution of the dead’s part, the prelates allowed themselves liberal discretion: something went to the poor, but more might be spent on masses, while a portion would be retained as remuneration for trouble expended.

In 1216 this provision of John’s Charter was withdrawn. Why? Had a suspicion crossed the mind of William Marshal that it conferred a dangerously elastic privilege upon the church? Did the legate Gualo refuse to trust the English prelates with authority? Did the young King’s advisers, conscious of their urgent need of money, determine to reserve what rights the indefinite earlier law allowed them of taking part in the scramble for the coin and chattels of intestates?

Irregularities continued during Henry’s reign: Bracton1 thought it necessary to urge that intestacy was not a crime. But his direct condemnation of the feudal lords’ practice of seizing chattels is confined to cases of sudden death. Yet it was neither King nor barons, but the church that triumphed: the rule, enunciated in John’s Charter, though omitted from all reissues, settled the practice of later years.2 The personal estate of intestates was administered “under supervision of the church,” and the same supervision was ultimately extended over the Wills and estates of men who had died testate.

[1 ]On whole subject, see Holdsworth, III. 418 ff.; Makower, Const. Hist. Church, 427 ff.

[2 ]Pollock and Maitland, II. 354.

[3 ]See Appendix and supra, p. 98. Also Bateson, Borough Customs, II. cxlii–iii. Cf. Cnut, II. cc. 70 and 78 (Liebermann, Gesetze, 357–365).

[1 ]See Appendix and supra, p. 102.

[2 ]Glanvill, VII. 16.

[3 ]See Pollock and Maitland, II. 354. Examples are readily found: “When Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of £11,000, to say nothing of the spoons and saltcellars” (Pollock and Maitland, I. 504). Royal prerogatives in the twelfth century were elastic. Henry II. used them freely, but on the whole fairly. His sons stretched every doubtful claim to its utmost limits. The Crown was the legal heir of all Jews (cf. c. 10) and apparently of all Christian usurers as well, at least of such as died unrepentant (see Pollock and Maitland, II. 486), and the making of a will was a necessary condition of a usurer’s repentance. (See Dialogus de Scaccario, 224–5 nn.) The King, further, took the goods of all who died a felon’s death (cf. c. 32) and of men who committed suicide (itself a felony). Madox (I. 346) cites an entry from the Pipe Rolls of 1172, recording 60 marks due to the exchequer as the value of the chattels of an intestate; and, two years later, mention is made de pecunia Gilleberti qui obiit intestatus. There is nothing to show whether such men were, or were not, usurers. The Pope was another competitor for the personal estates of intestate clerks. In 1246 he issued an edict making this demand: even Henry III. (dependent and ally of Rome as he was) protested, and the edict was withdrawn. See Pollock and Maitland, II. 357.

[1 ]F. 60.

[2 ]Pollock and Maitland, II. 355. Cf. supra, p. 324.