Magna Carta: A Commentary on the Great Charter of King John / With an Historical Introduction

CHAPTER TWENTY-FIVE.

Omnes comitatus, hundrede, wapentakii, et trethingic, sint ad antiquas firmas absque ullo incremento, exceptis dominicis maneriis nostris.

This provision also was directed against the sheriffs, and shows a praiseworthy determination to get to the root of the disease, instead of merely attacking the symptoms. The rents at which the counties (or parts of them) were farmed out to the sheriffs must no longer be arbitrarily raised, but were to remain at the old figures which had become stereotyped from long usage. To understand how such increases would injuriously affect the inhabitants of the county, some explanation is necessary. Centuries before the Norman Conquest, the long process had been already completed by which England had been gradually mapped out into shires on lines substantially the same as those which still exist. Each county had been further subdivided into smaller districts known as “hundreds” in the south, and as “wapentakes” in the Danish districts of the north; while intermediate divisions existed, exceptionally, in some of the specially large counties such as York and Lincoln, each of which had three “trithings” or ridings.

In commenting upon chapter 24, it has been already explained how the Anglo-Saxon kings entrusted their interests in each shire to an officer called a sheriff, and how a similar officer under the Norman kings became practically the chief magistrate and local judge in the county. His financial duties, however, long remained the most important: William I. and his successors had greater pecuniary interests in the English counties than their Anglo-Saxon forerunners ever had, and the sheriffs were their agents in collecting all rents and other dues. Even before the Conquest, however, the sheriff of an ordinary county had ceased to be a mere intermediary, who lifted the king’s rents and paid over, pound by pound, the yearly varying sums he might receive. He had become a firmarius: he bought for a yearly rent the right to collect and appropriate to his own uses the various revenues of the county. The Crown got only the exact sum stipulated for, known as the firma comitatus; while the balance, if any, remained with the sheriff. That officer was liable, on the other hand, for the sum agreed on, even when the annual yield fell short of his anticipations. In plain words, the sheriff speculated in the returns, and it was his business, by fair means or foul, to make sure of a handsome surplus.

Authorities differ as to the exact list of items purchased by the slump sum known as firma comitatus; but undoubtedly the two chief sources of revenue embraced were the profits of justice dispensed in the local courts, and the rents and returns from the various royal manors in the county.

William I. sharply raised the amounts of all these farms for his own benefit, and his successors endeavoured, whenever possible, to increase them still further. Now it might seem at first sight that these additional burdens concerned exclusively the Crown and the sheriff, but such was by no means the case. The sheriff took care to pass on the burden primarily falling upon him to the shoulders of those who were subject to his authority. When the king exacted more from the sheriff, the latter in turn increased the pressure on the inhabitants of his county or group of counties. His rule tended always to be oppressive, but his unjust fines and exactions would be doubled at times when the amount of the firma had recently been raised.

Under the vigilant rule of Henry II. some measure of relief was obtained by the shires from the misdeeds of their local tyrants, since that far-seeing king knew that his own best interests called for a curtailment of the pretensions of the sheriffs. He punished their excesses, and frequently deprived them of office. Under John the sheriffs had a comparatively free hand to oppress their victims, for he entered into a tacit alliance with them, in order that the two tyrants (the heads of the central and the local government respectively) might together fleece the men of the county more effectually. In addition to the fixed annual rents in name of firma which had again become stereotyped, John extorted an additional lump payment called either an incrementum or by various other names, and allowed the sheriffs to inflict new severities in order to recoup themselves for their additional outlay.^[662]

Magna Carta made no attempt to abolish the practice of farming out the shires, but forbade alike the increase of the farm and the exaction of an incrementum.

If this reform benefited the men of the counties in their dealings with the sheriffs, it also gave the sheriffs an unfair advantage over the exchequer. The total value of the various assets included in the firma comitatus had greatly increased in the past, and would probably continue to increase in the future. Therefore, it was absurd to bind the Crown by a hard-and-fast rule which would practically make a present of this future “unearned increment” to the sheriff. It belonged of right to the Crown; and the exchequer had increasing need of supplies to meet the increasing duties of the central government. To stereotype the firma to be paid in return for a constantly increasing revenue was unfair to the Crown.^[663] It is thus easy to understand why this chapter was entirely omitted in 1216 and in subsequent reissues. The Articuli super cartas, on the other hand, while conceding to the counties the right of electing their own sheriffs, reaffirmed the principle of John’s Charter, declaring that neither the bailiwicks and hundreds of the king, nor those of great lords ought to be put to farm at too high rates. The evil, however, continued under a new form; sheriffs, while only paying a moderate farm themselves, sublet parts of their province at much higher rates, thus appropriating the increment denied to the exchequer, while the bailiffs who had paid the increase could not “levy the said ferm without doing extortion and duress to the people.”^[664] Three successive acts prohibited this practice, declaring that hundreds and wapentakes must either be kept in the sheriff’s own hands, or sublet, if at all, at the old fixed farms only.^[665]

One exception to the scope of its own provisions was deliberately made by Magna Carta—an exception of an important and notable nature; the demesne manors of the Crown were deliberately left exposed to arbitrary increases of their annual rents. The towns in this respect were practically in the same position as the demesne manors. It is true that many of them had received separate charters fixing the amounts annually payable under the name of farm (firma burgi in their case), and that all such charters received a general confirmation in chapter 13 of the Great Charter, but the Crown could probably evade these promises by applying the name of “increment” to any additional payments desired, or, if that were objected to, might still resort to an arbitrary “tallage,” the right to extort which had not been taken away by Magna Carta. The money was as good to the Crown under one name as under another.^[666]

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.

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, however, it throws light on the general question of the right of bequeathing property.

I. The Nature of the Grievance. When a Crown tenant died it was almost certain that arrears of one or other of the numerous scutages, incidents, or other payments due to the Crown remained unpaid. The sheriff and the bailiffs of the district where the deceased’s estates lay were in the habit of seizing everything they could find on his manor under the excuse of securing the interests of their royal master. They attached and sold chattels out of all proportion to the sum actually due; and after satisfying the Crown debt, a large surplus would often remain in the sheriff’s hands which it would be exceedingly difficult for the relatives of the deceased freeholder to force him to disgorge.

Magna Carta here sought to make such irregularities impossible for the future by carefully defining the exact procedure to be followed in such circumstances. The sheriff and his bailiffs were forbidden to touch a single chattel of a deceased Crown tenant, unless they came armed with a legal warrant in the form of royal letters patent vouching the existence and the amount of the Crown debt. Even after exhibiting a warrant in proper form, the officers were only allowed to attach as many chattels as could reasonably be considered necessary to satisfy the full value of 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 generally, 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 of the chattels, even those not so attached, until the full ascertained amount had actually been paid to the exchequer. The Crown’s preferential claims remained over everything on the manor until the debt was extinguished. Only after that had been done, could a division of the estate take place among the deceased man’s relatives or those in whose favour he had executed a Will.

These provisions should be read in connection with the terms of chapter 9,^[668] 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 the case of a deceased Crown debtor and to that of a living one.

II. The Right to Bequeath. The main interest of this chapter lies, however, for the historian of law and institutions, in quite a different direction; to him it is valuable for the light incidentally thrown on the limits within which the right of making Wills was recognized in 1215. The early law of England seems to have had great 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.^[669] Of the law of bequests in the twelfth century, however, it is possible to speak with greater certainty; definite principles had by that time received general recognition. All testamentary rights over land or other real estate (so far as these had ever actually existed) were now abolished, not, as has sometimes been maintained, in the interest of the feudal lord, but rather in the interests of the expectant heir.^[670] Thus the right to devise land had been absolutely prohibited before the end of the twelfth century. Many reasons contributed to this result. For one thing, it had become necessary to prevent churchmen from using their influence to wring bequests of land from dying men, to the impoverishment of the rightful heir, and to the destruction of the due balance between Church and State, already menaced by the rapidly accumulating wealth of the various religious orders.

Churchmen, in compensation as it were for the obstacles thus opposed to their thirst for the land of the dying, made good their claim to regulate all Wills dealing with personal estate; that is money, goods, and chattels. They claimed and obtained for their own courts the right to exclusive jurisdiction over all testamentary provisions, now, of course, competent in respect of personal estate only. The Courts Christian “proved” Wills, (that is, usurped the right to determine whether they were really valid acts of the departed or not) and also superintended their administration. In particular, they had control over the “executors” who were originally the friends to whom the deceased had made known his wishes as to the distribution of his money and chattels on his death. The Church Courts ensured that the executors loyally carried out these intentions, and prevented them from appropriating to their own uses what had been entrusted to them for the good of the deceased’s soul. In John’s reign, however, the Crown and its officers interfered alike with the rights of testators to make Wills and the rights of the bishop of the diocese to supervise the distribution. Not only did the sheriffs find pretexts to help themselves; but John seems to have maintained that Wills were not valid 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.^[671] The king’s interference in this province seems, however, to have been regarded as an entirely illegal encroachment.

In strict law, rights of testation, though prohibited quoad land, were recognized quoad personal estate. It must not, however, be supposed that the testator was at liberty to divide or “devise” all his money and chattels. The reasonable claims of wife and children must first be respected, and only the free balance, after satisfying these, could be distributed. It was long before any exact rule was established for determining the amount of these “reasonable” claims. Much could be said for an elastic rule which allowed the proportion of personal estate falling to wife and children to vary with the circumstances of each case; but this vagueness had one grave objection; it inevitably led to friction and family quarrels. Magna Carta in this respect simply confirmed existing practice, and made no attempt at definition. During the thirteenth century, however, the lawful shares of wife and children were definitely fixed by the English common law, and that, too, at exactly the same proportions of the entire personal estate as are recognized to the present day by the law of Scotland. Where a Scots testator dies leaving wife and children, his moveable or personal estate is regarded as falling naturally into three equal parts, known as the widow’s part, the bairn’s part, and the dead’s part, respectively. It is only with the last mentioned third of his own moveables that he can do as he likes. If he disposes of the rest, wife and children may claim their legal rights and “break the Will.” Where a wife survives but no children, or vice versa, the division is into two equal portions. Magna Carta recognises a similar threefold or twofold decision, and contains a clear acknowledgment of what Scots law to the present day quaintly describes as "the dead’s part." It was only the residue of the deceased’s chattels after claims of wife and children had been satisfied, which was “to fall to the deceased,” and which is also spoken of as the portion of personal estate left to the executors “to fulfil the testament of the deceased.” This portion was appropriated “to the use of the dead”: that is, his executors, under the guidance of the Church Courts, would use it for the salvation of his soul. The deceased might either have given specific directions, or have left full powers to his executors (frequently churchmen) to make the division for charitable and religious purposes according to their own discretion. Part might go to needy relations, or to the poor of the district; part to endow religious houses; and part in masses for his eternal welfare.

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 the same to the present day, recognizing still the widow’s jus relictae and the children’s legitim, the English law has, by slow steps, the details of which are obscure, entirely changed. The rule which 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. Finally the power to bequeath personal estate has (in sympathy with exaggerated modern conceptions of the sacredness of rights of “property”) expanded to such an extent that a father may leave his children entirely penniless; and the law will not interfere. The law of England, at the present day, does not compel him to leave his son or daughter even the proverbial shilling. The phrase “to cut off a son with a shilling,” which still lives in popular usage, may possibly perpetuate a now forgotten 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.^[672]

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.

Here the Great Charter proceeds to remedy an evil connected with intestate succession, a natural sequel to the subject of testate succession. John was made to promise that he would not seize, as forfeit to his exchequer, the chattels of men who had neglected to make a will. In the Middle Ages all classes of men, good and bad alike, exhibited an extreme horror of dying intestate.^[673] Several causes contributed towards this frame of mind. Churchmen, from motives not unmixed, diligently inculcated the belief that a dying man’s duty was to leave part at least of his personal estate (the only property over which the law allowed him powers of disposal) for religious and charitable objects. The bishop or priest, who had power to give or withhold extreme unction to the sinner who had confessed his sins, was in a peculiarly strong position to enforce his advice upon men who believed the Church to hold the keys of heaven. Thus, every man on his death-bed had powerful motives for making his will in such form as the Church approved. Motives of a more worldly kind urged him in the same direction. If he died intestate, a scramble for his personal effects would undoubtedly result. Many powerful claimants were ready to compete. In Glanvill’s day, for example,^[674] every feudal lord claimed the goods of his intestate vassals. Such demands were difficult to defeat, although Bracton, at a later date^[675] declared them to be illegal, at least in cases of sudden death. Then, the kinsmen—rich and poor relations—had certain rights never very clearly defined. The Church, too, stood ready, with claims judiciously vague, which might be expanded as occasion required. It arrogated, at the very lowest, the right to distribute the dead man’s chattels for the good of his soul, and there are instances when a strong-minded bishop or abbot insisted on such a distribution, although the deceased had died unrepentant, leaving no will.^[676]

Prelates allowed themselves liberal discretion in regard to "the dead’s part" over which they thus assumed control. Something might go to the poor, but much would naturally be spent on masses for the departed soul, while a portion might openly be retained as a recompense for trouble expended in this pious cause. The king was another competitor for the goods of those who left no will; and attempts were made at various times to treat intestacy, more especially in the case of clerks, as a cause of forfeiture.^[677] For our present purpose it is unnecessary to discuss whether this claim was founded on the royal prerogative or on the rights of the king in his capacity either as overlord or as patron of vacant sees.^[678]

This chapter of Magna Carta was directed against all such pretensions of the Crown or its officials. Whoever else might get these windfalls, King John must not compete. So much is clear; some sort of compromise was, further, made between the two most likely claimants. Magna Carta provided for a friendly co-operation between the deceased’s kinsmen and the Church in distributing the residue of the intestate’s personal estate, after satisfying all preferential claims of creditors, wives, and children. This chapter, although afterwards struck out of all reissues of the Charter, seems to have been observed in practice.^[679] Apparently, however, the right of the kinsfolk to share the control with the Church gradually receded into the background, while the Courts Christian assumed complete authority in all cases of intestacy; so much so, that churchmen had frequently to be reminded that they were only the dead man’s administrators, and not entitled to appropriate the goods to their own uses.

It is easy to understand the motives which, in 1216, led those responsible for the government of the young Henry III. to withdraw this provision of Magna Carta. The Crown had then need of all the money it could get, and so long as the uncertainty of the law allowed a scramble to take place for the goods of intestates, the king could not be asked to stand aside with his hands tied by a clause of Magna Carta. He would take his chance with the other claimants. It was the Church, however, and not the Crown, which finally secured the prize.^[680]

CHAPTER TWENTY-EIGHT.

Nullus constabularius, vel alius ballivus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios, aut respectum inde habere possit de voluntate venditoris.