religious house to take the lands of any, and to leave the same to him of whom he received it. If any from henceforth give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee." 1

The 44th clause asserts the king's right to scutage "sicut Scutage. capi consuevit tempore Henrici regis avi nostri": and the 47th [Adulterine] directs the immediate destruction of the "castra adulterina" ,, castles to be (a phrase forcibly recalling the disorders of Stephen's reign), either erected or rebuilt since the commencement of the barons'

war.

demolished.

Third

In the ninth year of his reign, Henry, who was now declared Henry III.'s of age, re-issued Magna Charta and the Charter of the Forest, Charter, in consideration of the grant of an aid of a "fifteenth." They 1225. contained only two alterations of importance: (1) In the 9 Henry III. preamble, the words spontanea et bona voluntate nostra" were substituted for the "consilio"; a change which, though capable of being interpreted as an assertion on the king's part of his independence of the counsel of his baronage, was, with greater probability, intended to obviate any subsequent evasion by him on the ground that his former charters, having been granted by others in his name during his minority, were no longer binding on himself. (2) A final clause was added specifying the grant of the "fifteenth" as the price of the king's concession: "And for this our gift and grant of these liberties and of other liberties contained in our charter of liberties of the forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and all our subjects have given unto us the fifteenth part of all their moveables. And we have granted unto them for us and

2

1 The term "mortmain,” in mortua manu, applies generally to alienations Mortmain. of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal; but it is used specially with reference to religious houses, whose enormous acquisitions of landed property and subtle evasions of the law gave rise to a series of restraining enactments. The earlier measures seem to have been specially directed against the fraud so frequently committed upon the feudal lords by pretended and colourable donations to religious houses with the intention of receiving the lands back again freed from the feudal obligations. Henry II. endeavoured to check this abuse by exacting scutage and the other feudal dues from the lands held in chief by the clergy (Const. of Clarendon, c. xi.); and the present clause of the Great Charter seems to refer to fraudulent as opposed to innocent alienations. But its effect, as expounded in the following reign by the Statute de Religiosis, 7th Edward I., was to prohibit gifts of land to religious houses generally-i.e., even in cases where the religious house did not give the land back to hold of the house, but kept it in its own hands. The clerical evasions of this statute were successively and at length effectually met by the 13th Edward I. (Westminster II.) and the 15th Richard II. c. 5.-Coke, 2 Inst. 74; Reeve (ed. Finlason), i. 274. [Cf. Hannis Taylor, Origin Engl. Const., p. 407.-ED.]

2 Post multas vero sententiarum revolutiones, communiter placuit, quod rex tam populo quam plebi libertates, prius ab eo puero concessas, jam major factus indulsit.-Ann. Dunstapl., p. 93, s. a. 1225; Select Chart., 314.

Subsequent confirnia

tions of the Charter.

our heirs that neither we nor our heirs shall procure or do anything whereby the liberties in this charter contained may be infringed or broken; and if anything be procured by any person contrary to the premises, it shall be had of no force nor effect."

It is in the form in which it was promulgated in the ninth Henry III. that Magna Charta was confirmed by Edward I. in the twenty-fifth year of his reign. The copy which heads our statute book is taken from an Inspeximus of the Charter, so called from the letters patent prefixed in the name of Edward I., Inspeximus Magnam Chartam domini Henrici quondam regis Angliae patris nostri de libertatibus Angliae in haec verba." Regarding the Charter as the palladium of the nation's liberties, the people for centuries were ever ready to purchase its confirmation from successive kings by the grant of a liberal subsidy. In this way it was solemnly confirmed no less than thirty-seven times down to the second year of Henry VI.2

1 Stat. of the Realm, Charters of Liberties, 22-25.

2 The Charter was confirmed:

6 times by Henry III.

3

Edward I.

6 times by Henry IV.
Once by Henry V.
Henry VI.

"To have produced it," remarks Sir James Mackintosh, "to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtue which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice, if indeed it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers." (Hist. Eng. i. 221.)

[One of the latest contributions to Magna Charta literature is a treatise by Sir W. Anson, Bart., entitled: 'Law and Custom of the Constitution" (Oxford, 1897). The learned author sums up as follows: that Representation is a condition precedent to taxation, and that the law is the same for all freemen, may be regarded as the cardinal principle of the Great Charter." This statement appears to the Editor to be far too vague, and to be based upon generalisations which are misleading. Whilst it cannot be gainsaid that this principle is contained in the Charter, it can hardly be described as being the cardinal one. To assert this is tantamount to begging the whole question of the causes leading up to the codification of the principles of justice which it expresses. An excellent contribution to the study of the English Charters is a collection by M. Charles Bémont, entitled Chartes des libertés anglaises" (1100-1305), Paris, 1892. It contains a rich catalogue of names, subjects and words. The kernel of the whole forms the Magna Charta," which is led up to by three charters of the twelfth century. The introduction shows the significance of the Charter, and the author increases our knowledge of the English Constitution in all its bearings during the thirteenth century from most recent sources. The sketch of the Magna Charta, traced down to the seventeenth century, is of superlative value.ED.]

CHAPTER V.

ADMINISTRATIVE SYSTEM UNDER THE NORMAN AND

PLANTAGENET KINGS.

of adminis

At the head of the whole Administrative system was the king The king himself, personally taking part not only in legislation but in personally took part in fiscal, judicial, and every other kind of executive business.1 all branches It was not till long after the Conquest that the kings of the tration. English ceased, occasionally at least, to attend and take part in the proceedings of their Courts of Law. Henry II. was accustomed to assist in dispensing justice both in the Curia Regis and in its financial committee the Exchequer. Some of his sayings on the judgment-seat have been preserved. In a case tried before him, shortly after his accession to the throne in 1154, the defendant alleged that a charter of Henry I. produced in evidence had been improperly obtained. " Per oculos Dei," exclaimed the king, taking the charter into his own hands, si cartam hanc falsam comprobare posses, lucrum mille librarum mihi in Anglia conferres."3 In another case, a dispute, between

1 The Norman period, comprising the reigns of the Conqueror and his three successors, was "the epoch of the growth of a new administrative system, having the source of its strength in the royal power." Stubbs, Const. Hist., i. 365. [“The Norman government of the Kingdom rested upon a combination of the relations of the military, judicial, police and ecclesiastical authority; consequently its central point was found in the person of the king." (Gneist, Hist. Engl. Const., cap. 16, p. 201.)-ED.] 2 Domini Regis Curia, in qua ipse in propria persona jura decernit. Dial. de Scac., i. c. 4.

3 Walter, Abbot of St. Martin of Battle v. Gilbert de Balliol (Chron. Monas- A trial terii de Bello, 106; Bigelow's Placita Anglo-Normannica, 175). This case before

is interesting for the light which it throws alike on the working of the feudal Henry II. in tenures, the system of judicature, and the social aspects of the twelfth person. century.

ex

The Abbot of St. Martin had acquired certain lands, partly by purchase and partly by gift, from a sub-tenant of the Manor of Barnhorn, with the consent of Withelard de Balliol, who held the same of the Count of Eu: and the donation had been confirmed by the count and by the king (Henry I.). Withelard afterwards disseised the abbot for refusing actions," and no restitution was obtainable either during the remainder of Henry I.'s reign, or under Stephen, in whose time justice was little regarded, and he who was strongest got most." On the accession of Henry II. qui avita tempora renovaret," Abbot Walter renewed his claim against Gilbert de Balliol, the heir of Withelard, and the king grants a writ to John, Count of Eu, commanding him, personally or by the Sheriff of Sussex, to do justice to the abbot. The defendant manages by various subterfuges to evade the trial; and at length the plaintiff, with much

Baldwin, Archbishop of Canterbury, and the Abbot of St. Edmund as to a territorial franchise, we are told that the king, puzzled by the production of conflicting charters, declared "Nescio quid dicam: nisi ut cartae ad invicem pugnent." And when the archbishop subsequently refused to accept the abbot's offer to submit the dispute to the verdict of the counties of Norfolk and Suffolk, the king angrily arose and left the court, saying, "Qui potest capere capiat." King John personally decided a case in the Exchequer in the sixth year of his reign. Henry III. frequently sat in Westminster Hall with his judges; and several instances are recorded of criminal jurisdiction exercised in person by John, Henry III., Edward I., and Edward II.2 Still the exercise of ordinary jurisdiction by the king was an exception

difficulty, gets the suit called up into the Curia Regis. But the king is unable to attend personally, and the cause, though much litigated before the king's justices, is brought to no satisfactory conclusion. Ultimately the suit comes before the king himself at Clarendon. The abbot's case is stated by Osmund, a monk of Battle, and Peter de Chriel, a knight, and the deeds of purchase and donation and the charters of confirmation are read in court. The defendant objects that the deeds of his ancestors have no seal. Thereupon Richard de Lucy, the chief justice (who was also, we are told, the abbot's brother), asks whether the objector himself has a seal, and on receiving an affirmative reply, sneers at the modern custom for every little knight to have a seal, and overrules the objection. ("Moris," inquit, "antiquitus non erat quemlibet militulum sigillum habere, quod regibus et praecipuis tantum competit personis, nec antiquorum temporibus homines ut nunc causidicos vel incredulos malitia reddebat.") Undismayed, Gilbert proceeds to question the confirmatory charter of Henry I.; whereupon the king interposes with the exclamation "Per oculos Dei," given in the text, and adds: “Si monachi per similem cartam et confirmationem hujusmodi jus in praesenti loco scilicet Clarendona, quem plurimum diligo, se habere possent ostendere, nihil esset in quo eis juste possem contradicere, quo minus eis omnino dimitteretur." Then turning to the abbot and his advocates, Ite,' inquit, ' et consilio habito, invicem conferte, si forte sit aliquid cui amplius quam huic cartae velitis inniti. Non tamen vos puto ad praesens aliam quaesituros probationem.'" After this expression of opinion from the Court, it is not surprising that the abbot, though he retired in obedience to the Royal command, quickly returned and expressed his intention to produce no further proof, but to take his stand upon the charter. Judgment is given for the plaintiff, unanimi consensu totius curiae," followed by a king's writ "ad quatuor milites qui tunc ex ejus praecepto vicecomitatum Suthsexiae regebant," directing them to ascertain the boundaries of the lands in question, by the oaths of twelve men of the vicinage, and then to reinstate the plaintiff. Which was accordingly done by Richard de Chaaines, one of the four knights, "sociorum suorum sibi vice commissa."

1 Archbishop of Canterbury v. Abbot of St. Edmund. Circa A.D. 1186. Chron. Jocelin de Brakelonda, p. 37 (Camden Soc.); Bigelow's Placita Anglo-Normannica, 238

2 Allen on the Royal Prerogative, 92; Madox, Hist. of the Exch., i. 191; Diaologus de Scacc., 1. i. c. 4; Palgrave, Eng. Com., i. 292. In early times even queens consort sometimes sat in court. Matilda, in the absence of William the Conqueror, held pleas in person in the County Court (Domesday. Heming, p. 512; coram Regina Matilda in praesentia iv. vicecomitum "). The "good Queen Maud," wife of Henry I., was present at a trial in the Exchequer between the men of Periton and the Abbot of Abingdon (“ Quia

to the general rule. Edward IV., we are told, sat in the King's Bench for three consecutive days, in order to see how his laws were executed, but it is not said that he interfered in the proceedings. By the usage of many centuries it has now been long an undisputed principle that, although the king should be present in a court of justice, he is not entitled to determine any cause but by the mouth of his judges, to whom he has committed the whole of his judicial authority." When James I. sat personally in court, and wished to interfere, he was told by the judges that he could not deliver an opinion.3

4

ciar.

Next to the king in power and authority was his chief minister, The Justi the Justiciar, the supreme administrator of law and finance. He was "the greatest subject in England," the representative of the king in all matters, and by virtue of his office, lieutenant, viceroy, or regent of the Kingdom during the king's absence. The Justiciar was, as we have seen, a new officer appointed by the Conqueror, not only to carry on the government during his frequent absence from England, but at all times to relieve him from the pressure of the vast amount of business which the government of that newly-acquired dominion involved. The Justiciar, in short, stood to the king in the whole Kingdom in the same relation as the sheriff did in each shire. The dignity of the Justiciar's office remained unimpaired until the death of King John, when Hubert de Burgh, the Justiciar, being besieged rex tunc in Normannia erat, regina, quae tunc praesens aderat, taliter hoc sigillo suo confirmavit: Sciatis quod Faritius abbas de Abbendona in curia domini mei et mea apud Wintoniam, in thesauro," &c. (Hist. Mons. Abingd., ii. 116 [Rolls Ser.], Bigelow's Plac. Ang. Norm., 99.) Henry III.'s queen also held pleas in person (Spence, Equit. Jurisdiction, 101, n.). 1 Stow, Chron., 416 (1631). [Foss, iv. 215.-ED.]

2 Coke, 4th Inst., 73.

3 Blackstone, iii. 41.

4 Supra, p. 56.

5 [The Norman system of jurisprudence, unlike the Anglo-Saxon system, which was based on self-government and involved the total administration of justice in civil and criminal cases and excluded all right of appeal save to the clemency of the Crown (cf. Hallam, Middle Ages, 11th ed., vol. ii. p. 281), was eminently a centralised system, at the head of which was the Chief Justiciar, who was not only the chief magistrate, but the king's lieutenant throughout his Kingdom, and his viceroy during the royal absences from the realm. See F. A. Inderwick, The King's Peace, pp. 45 seq. The colleagues on the bench of the Chief Justiciar, but subordinate to him, were the Chancellor, barons, ecclesiastics, and other learned persons from time to time summoned to give assistance (note). The Court thus constituted was called indifferently the Curia or Aula Regis.-ED.]

Stubbs, Sel. Chart. Introd. Sketch, 16. "The growth of [the Justiciar's] functions was gradual, and even the history of the title is obscure. . . . The office first appears as the lieutenancy of the Kingdom or vice-royalty exercised during the king's absence from England. In this capacity William Fitz-Osbern, the steward of Normandy, and Odo of Bayeux, acted during the Conqueror's visit to the Continent in 1067. It would seem most probable that William Fitz-Osbern, at least, was left in his character of steward, and that the Norman seneschalship was thus the origin of the English justiciarship.”—Const. Hist., i. 374.