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VI.

Elaboration

VI.A. Magna Carta


Although everyone has heard of Magna Carta and it did indeed have a monumental
influence on constitutional history, the clauses of Magna Carta seem less than enthralling.
From our perspective, it is instructive to note the kind of things the barons were interested
in and what that indicates about the way in which they perceived what had happened in
their lifetime.

King John (1199-1216) was brother of King Richard the Lionheart (1189-1199) and son of
Henry II (1154-1189). John had been unsuccessful in several areas. He had lost the English
hold over the northwestern French territories that had long been attached to England; many
of his barons who held land in both England and Normandy and/or Anjou were thus put in
the painful choice of choosing which lands they wanted to continue holding. This territorial
restriction on the extent of his realm meant that John spent more time in England, and he
spent much of his time in his law courts: he seemed to like and to be fairly good at
dispensing justice. Because of the widening royal jurisdiction and the increased measure of
time available, however, John's authority was much more heavily felt than royal authority
hitherto: many resented that fact. Finally, John had fallen into a bitter dispute with the pope
about who should be archbishop of Canterbury. John himself was excommunicated and
England put under interdict, so that all religious services stopped in England -- priests
worried that people were getting out of religious habits. John could have coped with any
one of these problems fairly well; certainly the interdict and excommunication lasted for
years without providing a major problem for the monarch. Eventually, however, all the
problems coincided and forced John into a compromise with the pope, but not before his
barons had demanded and obtained from him the grant that was Magna Carta.

This version of Magna Carta, selections of which appear below, is the original 1215
version. It was re-issued with emendations in 1216, 1217, and 1225; it was periodically re-
issued thereafter by succeeding monarchs, but in the 1225 version.

The form of Magna Carta is that of a grant of liberties, much like a grant of land. There are
several questions that should be uppermost in your mind in reading these selections.

What were the barons concerned about?

Did they want to reverse what had happened with the common law?

Is there any evidence that they recognized what had happened?

What is the best way to formulate the intention of the barons?


John, by the grace of God king of England, lord of Ireland, . . . to his archbishops, bishops,
abbots, earls, barons, justiciars, foresters, sheriffs, reeves, ministers, and all his bailiffs and
faithful men, greeting. Know that, through the inspiration of God, for the health of our soul
and [the souls] of all our ancestors and heirs, for the honor of God and the exaltation of
Holy Church, and for the betterment of our realm, by the counsel of our venerable fathers
[11 named ecclesiastics], of our nobles [16 named nobles], and of our other faithful men --

1. We have in the first place granted to God and by this our present charter have confirmed,
for us and our heirs forever, that the English church shall be free and shall have its rights
entire and its liberties inviolate. . . . We have also granted to all freemen of our kingdom,
for us and our heirs forever, all the liberties hereinunder written, to be had and held by them
and their heirs of us and our heirs.

2. If any one of our earls or barons or other men holding of us in chief dies, and if when he
dies his heir is of full age and owes relief, [that heir] shall have his inheritance for the
ancient relief: namely, the heir or heirs of an earl [[sterling]]100 for the whole barony of an
earl; the heir or heirs of a baron [[sterling]]100 for a whole barony; the heir or heirs of a
knight 100s at most for a whole knight's fee. And let whoever owes less give less,
according to the ancient custom of fees.

3. If, however, the heir of any such person is under age and is in wardship, he shall, when
he comes of age, have his inheritance without relief and without fine.

4. The guardian of the land of such an heir who is under age shall not take from the land of
the heir more than reasonable issues and reasonable customs and reasonable services, and
this without destruction and waste of men or things. And if we entrust the wardship of any
such land to a sheriff or to any one else who is to answer to us for its issues, and if he
causes destruction or waste of the wardship, we will exact compensation from him . . . .

7. A widow shall have her marriage portion and inheritance[99] immediately after the death
of her husband and without difficulty; nor shall she give anything for her dower or for her
marriage portion or for her inheritance -- which inheritance she and her husband were
holding on the day of that husband's death. And after his death she shall remain in the house
of her husband for forty days, within which her dower shall be assigned to her.

8. No widow shall be forced to marry so long as she wishes to live without a husband; yet
so that she shall give security against marrying without our consent if she holds of us, or
without the consent of her lord if she holds of another.

Query: of whom does a widow hold? Which widows would hold of the king? Unlike with
other tenancies, in which the widow held of the heir, widows of tenants who held of the
king (tenants in chief) held their dower directly from the king, not from the heir. This
seeming divergence in the thirteenth century can be taken as evidence of the situation of all
widows vis-a-vis their lords before 1176: the situation with normal tenancies had changed;
the relation between tenants-in-chief and the king had remained the same.
16. No one shall be distrained to render greater service from a knight's fee, or from any
other tenement, than is thence owed.

17. Common pleas shall not follow our court, but shall be held in some definite place.

18. Assizes of novel disseisin, of mort d'ancestor, and of darrein presentment shall be held
only in their counties [of origin] and in this way: we, or our chief justice if we are out of the
kingdom, will send two justices through each county four times a year; and they, together
with four knights of each county elected by the county court, shall hold the aforesaid
assizes in the county, on the day and at the place of the county court.[100]

20. A freeman shall be amerced for a small offence only according to the degree of the
offence . . . .

21. Earls and barons shall be amerced only by their peers, and only according to the degree
of the misdeed.

32. We will hold the lands of those convicted of felony only for a year and a day, and the
lands shall then be given to the lords of the fees.

33. All fish-weirs shall henceforth be entirely removed from the Thames and the Medway
and throughout all England except along the sea-coasts.

34. Henceforth the writ called precipe shall not be issued for any one concerning any
tenement whereby a freeman may lose his court.

36. Nothing henceforth shall be taken or given for the writ of inquisition concerning life
and limbs, but it shall be issued gratis and shall not be denied.

38. No bailiff shall henceforth put any one to his law by merely bringing suit [against him]
without trustworthy witnesses presented for this purpose.

39. No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any


way destroyed, nor will we go against him or send against him, except by the lawful
judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we deny or delay right or justice.

61. Since moreover for God, for the improvement of our kingdom, and for the better
allayment of the conflict that has arisen between us and our barons, we have granted all
these [liberties] aforesaid, wishing them to enjoy those [liberties] by full and firm
establishment forever, we have made and granted them the following security: namely, that
the barons shall elect twenty-five barons of the kingdom, whomsoever they please, who to
the best of their ability should observe, hold, and cause to be observed the peace and
liberties that we have granted to them and have confirmed by this our present charter; so
that, specifically, if we or our justiciar or our bailiffs or any of our ministers are in any
respect delinquent toward any one or transgress any article of the peace or the security, and
if the delinquency is shown to four barons of the aforesaid twenty-five barons, those four
barons shall come to us, or to our justiciar if we are out of the kingdom, to explain to us the
wrong, asking that without delay we cause this wrong to be redressed. And if within a
period of forty days, counted from the time that notification is made to us, or to our justiciar
if we are out of the kingdom, we do not redress the wrong, or, if we are out of the kingdom,
our justiciar does not redress it, the four barons aforesaid shall refer that case to the rest of
the twenty-five barons, and those twenty-five barons, together with the community of the
entire country, shall distrain and distress us in every way they can, namely, by seizing
castles, lands, possessions, and in such other ways as they can, saving our person and the
persons of our queen and our children, until, in their opinion, amends have been made; and
when amends have been made, they shall obey us as they did before. And let anyone in the
country who wishes to do so take an oath to obey the orders of the said twenty-five barons
for the execution of all the aforesaid matters, and with them to distress us as much as he
can, and we publicly and freely give anyone leave to take the oath who wishes to take it and
we will never prohibit anyone from taking it. Indeed, all those in the land who are unwilling
themselves and of their own accord to take an oath to the twenty-five barons to help distrain
and distress us, we will make them take the oath as aforesaid at our command. And if any
of the twenty-five barons dies or leaves the country or is in any other way prevented from
carrying out the things aforesaid, the remainder of the aforesaid twenty-five barons shall
choose as they think fit another one in his place, and he shall take the oath like the rest. In
all matters the execution of which is committed to these twenty-five barons, if it should
happen that these twenty-five are present yet disagree among themselves about anything, or
if some of those summoned will not or cannot be present, that shall be held as fixed and
established which the majority of those present ordained or commanded, exactly as if all
the twenty-five had consented to it; and the said twenty-five shall swear that they will
faithfully observe all the things aforesaid and will do all they can to get them observed. And
we will procure nothing from anyone, either personally or through any one else, whereby
any of these concessions and liberties might be revoked or diminished; and if any such
thing be procured let it be void and null, and we will never use it either personally or
through another. And we have fully remitted and pardoned to everyone all the ill-will, anger
and rancour that have arisen between us and our men, clergy and laity, and as far as pertains
to us have completely forgiven all trespasses occasioned by the same quarrel between
Easter in the sixteenth year of our reign and the restoration of peace. And, besides, we have
caused to be made for them letters testimonial patent of the lord Stephen archbishop of
Canterbury, of the lord Henry archbishop of Dublin and of the aforementioned bishops and
of Master Pandulf about this security and the aforementioned concessions. Wherefore we
wish and firmly enjoin that the English church shall be free, and that the men in our
kingdom shall have and hold all the aforesaid liberties, rights and concessions well and
peacefully, freely and quietly, fully and completely for themselves and their heirs from us
and our heirs, in all matters and in all places for ever, as is aforesaid. An oath, moreover,
has been taken, as well on our part as on the part of the barons, that all these things
aforesaid shall be observed in good faith and without evil disposition. Witness the
abovementioned and many others. Given by our hand in the meadow which is called
Runnymede between Windsor and Staines on the fifteenth day of June, in the seventeenth
year of our reign.
1. Chapter 39, which would be become chapter 29 in later versions of Magna Carta, is the
forerunner of the fifth amendment due process clause of the United States Constitution and
many similar provisions in state constitutions. In that way, that chapter is significant for
much later history. But prior to 1215 there was another similar undertaking, made in 1191,
to solve some problems that arose while King Richard was out of the country and people
got upset about the behavior of some of his officials. What is the difference between the
1191 provision that follows immediately here and chapter 39 of Magna Carta:

[1191] "It is conceded that bishops, abbots, earls, barons, knights and free tenants shall not
be disseised of lands and chattels by the will of the justices or the ministers of the lord king,
but that they shall be dealt with by the judgment of the court of the lord king according to
the lawful customs and assizes of the realm or by the mandate of the lord king."

Does that difference give you any hint about what the barons, overall, were up to with this
document? Note that this is prior to the time at which lords lost their disciplinary authority.
This provision does not take away or even challenge the disciplinary authority of the king
over his tenants-in-chief. It only objects to the king's ministers and justices exercising that
same discretion. Note how, however, this indicates some growth already in 1191 of a
respect for rigid rules.

2. Concerning chapters 16-40: what attitude does this indicate toward the common law?
Why were the barons not interested in eliminating the legal institutions that had deprived
the feudal courts of authority?

3. What about the first chapters? What interests were foremost for the barons? Making the
terms under which they held their tenements from the king certain was making these
tenancies like all other tenancies, which had been regulated by the various writs you have
studied.

4. What can you make out from the enforcement chapter, chapter 61? Is this
institutionalized civil war? To what extent does it look like a feudal court? To what extent
does it look like a parliament? What precisely is the difference between this court and a
feudal court? Would it be normal for a feudal court to distrain its lord, rather than only the
tenants? What is the closest analogue available for restraining the king in the same manner
that the feudal courts were restrained? Could one find a court superior to the king to
regulate the relationships between the king and his men? What is next best?

5. Are we dealing with a change in fundamental assumptions about propriety and the nature
of justice? Do the barons think anymore solely in terms of relationships and discretion?
What it looks like, more than anything else, is that the barons had completely adapted to a
new way of thinking about land-holding and about justice. They were demanding that the
king treat them like the king's court had made the barons treat their own tenants. Instead of
trying to turn the clock back to a time when they had discretionary control over their
tenants [and it may be, since what had happened was that norms had turned into rules and
produced anomalies, with remedies provided for the anomalies, that no one could really
remember accurately the way the world had been], they were trying to make the king accept
the new situation.
In many ways today it might well be argued that greater freedom lies in making inroads on
property rights [that is, restricting an individuals use of his own property in ways that
pollute, taxing all forms of inheritance (inherited wealth not having been earned by the
inheritors) for the greater good of the community], at origins the establishment of property
rights was a marked increase in individual freedom. Instead of having to rely on one's lord
and cultivate that relationship above all, men were more free (not really free) to stay outside
local battles and stand on their own. That increase in individual liberty went hand-in-hand
with the appearance of the English state. If a state, in the modern sense, is a political
community in which bureaucratic institutions have acquired final decision-making power
and have produced sufficient benefits for a substantial sector of the population such that
individuals have re-defined themselves so that existence without that administrative
apparatus seems inconceivable and decisively undesirable, so that their loyalty has shifted
from local institutions of family, lords, or religious institutions, then, for the time between
1176 and 1215, one can maintain that something like a state was forming. By 1300 one can
say it with conviction, and the common law served as the core of that development,
providing a source of allegiance separate from the loyalty to the king and a common
interest for all the substantial people in the realm, around which parliament would form in
and after 1258.

Magna Carta, then, was a great document in liberty. A few of its clauses even today sound
like individual rights provisions. More important was the way in which Magna Carta
embodied the ideas that the government was expected to abide by certain standards and that
justice is not substantively defined but also defined by the adherence to rigid rules. Finally,
since Magna Carta also embodies the way in which the development of individual freedom
was tied up with the growth of state power, one should perceive likewise that state power is
essential to individual liberty, without diminishing the modern perspective that
overwhelming state power often threatens individual liberty.

VI.B. Elaboration

VI.B.1. The writ of aiel (aiele)

Huse v. Huse (CRR, 16:183; date, 1239; court of common pleas)

Matilda [daughter of Henry Huse] seeks against Matthew [Huse] 1 carucate of land with
appurtenances in Elinges, concerning which Cecily Huse, grandmother of the abovesaid
Matilda,[101] whose heir she is, was seised in her demesne as of fee[102] on the day she
died.

And . . . Matthew comes and denies her right etc. And Matthew says that it does not seem
to him that he ought to respond to this writ, because it was purchased against the law and
custom of England, because that writ cannot be a writ of right, because, if it were a writ of
right and were upheld, so would the magnates of England lose their courts concerning their
fees. [See Magna Carta above, c. 34.][103] Nor can it be a writ of mort d'ancestor, because
it speaks of the time and seisin of the grandmother of the same Matilda. Nor can it be the
writ which is called nuper obiit, because she seeks nothing as her portion from the
abovesaid land. Nor can it be a writ of entry, because she touches on nothing either in her
writ or in her count concerning the entry of Henry the father. And he seeks judgment if he
ought to respond to this writ. And, saving this for himself, he will say something else if the
court shall have considered.

Afterwards, it was considered that he respond . . .

1. This is the beginning of the writ of aiel, which is something like an assize of mort
d'ancestor, but on the death of a grandmother or grandfather. The form of the writ was as
follows:

The king to the sheriff, greetings. Command (Precipe) B. that justly and without delay he
render to A. 100 acres of land with appurtenances in N. of which C. the grandfather of the
aforesaid A., whose heir he is, was seised in his demesne as of fee on the day on which he
died, as he says. And if he does not and the aforesaid A. shall have given you security etc.,
then summon etc. the aforesaid B. to be before our justices at the first assize when into
those parts etc. And there etc. Witness etc.

Is this writ more like an assize of mort d'ancestor or a writ of entry?

2. What is the problem? Why cannot a litigant simply come into court and set out whatever
complaint he has? The jurisdiction of the king's court was not omnicompetent like that of
the county courts. The king's court required jurisdiction to be granted for each individual
case, and the chancery, which issued the original writs, could issue only certain writs. The
standardized writs thus set the parameters of the common law.

3. Note that if one wanted to claim as heir to a greatgrandfather who had just died, a further
writ was provided: the writ of besaiel (meaning, "great grandfather"]. For other more
distant relatives, whether more ancient than great grandfathers or cousins, the writ of
cosinage was provided. The following case is thus one of cosinage.

VI.B.2. The writ of cosinage

Gatesden v. Prioress of St. Giles (CRR, 16:301; 1239; common pleas)

John of Gatesden seeks against the prioress of St. Giles of Flamstead 1 carucate of land
with appurtenances in Hemelhampstead concerning which William of Gatesden, cousin of
the same John whose heir he is, was seised in his demesne as of fee on the day he died, as
he says.

And the prioress comes and seeks thereof the view.


Let her have it.

Day is given her at 3 weeks from the birth of St. John the Baptist. And meanwhile etc.

VI.B.3. The Statute of Marlborough, c. 29 (date 1267)

It is provided also that if the alienations for which a writ of entry used to be given are made
through so many degrees that writ cannot be had in the form previously used, the plaintiff
shall have a writ for recovering seisin without mention of the degrees, into whosesoever
hands the things shall have come through such alienations, by original writs to be provided
for the purpose by the king's council.

1. You will remember the per and cui rule? Does this abolish it? Completely? This statute,
read closely, only pertains to situations that run beyond the old writs: these will now be
taken care of by a writ of entry not in the "per" or in the "per and cui" but in the "post".
"Post" means after, and the writ will run "into which he has not entry except after the
demise made." The barons wanted this writ. Why? Writs of entry in the per or per and cui
provided a remedy against those protected from lordly action by novel disseisin and mort
d'ancestor. Once aiel and besail and cosinage were provided in 1239, people who were
more distant from Secundus than was Tertius were likewise protected from lordly action.
That meant that claimants had to pursue them with writs of right; in pleading the lords
would be put in the same situation of perhaps having to provide escambium unjustly. The
situation could only be remedied by extending the writs of entry. Lords thus demanded that
the king do so: that demand was one of the demands of the barons in the Barons War,
finally carried here into statutory form after the barons were put down. Note, however, that
the rule lived on. If the fact situation could be expressed with a writ in the per or in the per
and cui, it had to be. Only if the situation exceeded the rule could one get a writ in the post.
Technicality thus piled on technicality, which lawyers for centuries learned.

VI.C. Introduction to the Whilton Dispute

Danevill v. fitzGerold (CRR, 7:200; 1214; common pleas)

Dorset. The assize comes to recognize which patron presented in time of peace the last
parson, who is dead, to the church of Langeton, which is vacant, the advowson of which
Peter Danevill claims against William fitz Gerold and Matilda, his wife.
[William and Matilda] come and say that the assize ought not proceed thereof, because they
well acknowledge that Robert Danevill, father of the abovesaid Peter and grandfather of the
same Matilda, presented the last parson, to wit, Eudo Martel. But afterwards it pleased him
to promote his first born son, Richard, such that the same Richard went to the earl Delisle
and sought a certain girl from the earl's chamber as wife. And the earl did not want to do so,
because he was in doubt if the inheritance would accrue to him or not until his father came
into the court of the earl Delisle and withdrew himself [se demisit] from all his land and
asked the earl to take his son's homage thereof. And the earl took his homage for the whole.
And the same Richard and his wife with Robert father of the same Richard remained
together for many years. Eventually it happened that they could not agree further to live
together. And Richard came and committed to his father half the abovesaid land to sustain
himself, and Richard retained half the abovesaid land and the chief messuage. For that
reason the same William and Matilda say that they ought to have that presentment, since the
same Matilda descends from the first born brother.

And Peter by his attorney says that the abovesaid Robert did not divest himself from the
abovesaid land, but indeed he handed over to the abovesaid Richard his son a part of his
land and retained to himself the chief messuage with the advowson of the church. And he
(Peter) held what his father held. And therefore he seeks the presentment.

It is considered that William and Matilda have their presentment to the church.

1. What kind of writ is this? What rules apply with this writ? We have already covered this,
in Section IV.D. Refer back to that section for treatment of the assize of darrein
presentment.

2. After recognizing the kind of writ, in a case moderately complicated like this one, you
must first draw out the family lines so that you can understand what relationships are being
talked about. I have done it for you, but you have to realize that you cannot understand
cases like this until and unless you have the family relationships absolutely clear. It is
essential here to understand that here a second son is claiming against the heir of the elder
brother.

3. Consider the story of William and Matilda. Do they describe a grant by subinfeudation or
by substitution? Was the lord involved? What was the most important part of the transaction
to put Richard in a situation where the earl would consent to the marriage of his ward to
him? By the surrender and the regrant the son became the actual tenant of the land to whom
the lord would be committed; there would be no doubt then that the son would have the
land, because it no longer depended on inheritance. In fact, the elder son (and his child) is
in an exceptional position here because he takes by grant what would still have accrued to
him by inheritance. The lord is thus not marrying off his ward irresponsibly, but to a person
whose wealth is assured.
4. No one really knows, but what do you suspect: was this a merely formal transaction, a
"legal" action instead of a social one, an action without practical effect but at law? Did the
balance of power shift between Richard and his father? By the analysis pursued here, the
answer is a strong "yes".

5. Is there any investigation as to whether or not Richard exercised his new right to
possession? Why not? The lord's acceptance is determinative. Note that still the primary
test for whether one is seised, lawfully possessed, is lord's acceptance.

6. The parties disagree here. Peter claims that his father had not divested himself of the
land. Note that there is no resort to the sworn panel of men to obtain a verdict. Why not? In
claiming that, however, he is saying that the father died seised in demesne as of fee. If that
is the case, would the land have descended by inheritance to the second son or to the first
son? Has Peter made out any claim that has worth legally? This is a nice case, because it
comes in 1214, while King John is still alive. King John seized the throne in deprivation of
an elder brother's heir, so that the court was at times unwilling to accept the principle of
representation in inheritance (that a person's heirs will have the rights in inheritance that
that person would have had were he still alive.) Peter tries to take advantage of the fact that
legally he is in the same position as was King John, but it does not help him.

7. The immediate lesson here is that when a father, still in 1214, wanted to promote one of
his sons, he had to give up if he was going to give. After the surrender and regrant, he was
no longer the tenant; he could not act in such a way as to disinherit his son or to take away
the fee. His control was essentially gone, although he had come to some kind of agreement,
probably assured by the lord, that he would stay on the tenement for the rest of his life.

--------------------------------------------------------------------------------
[99] The inclusion of "inheritance" here is important. Previous provisions mentioned dower
and marriage portion, not inheritance. Consider the problem. In a feudal society, when a
husband did homage for his wife's inheritance, the lord had fulfilled his obligation to his
man by providing for the heiress, but the husband was the one who had done homage and to
whom the lord was thus committed with the land. As lords lost their disciplinary powers
homage became more just a legal ceremony. Husbands did homage for the inheritance of
the wife "for the wife": the law began to consider that the land was actually the wife's
regardless of the homage, so that it would go down to her heirs if they were different from
his. Right around the time of Magna Carta examples can also be found of women giving
homage, a sure sign that homage was now a legal ceremony, not predicated on actual
fighting ability. That process had been begun in 1176, when a lord had to take a minor
male's homage.
[100] This turned out to be impractical. The circuit justices held their own court separate
from the county courts for the holding of the assizes.

[101] Since the claimant is claiming on the seisin of grandmother, this case cannot be mord
d'ancestor, in which one can only claim from father, mother, brother, sister, aunt, or uncle.
[102] Remember that "seised in her demesne as of fee" means lawfully possessed (with the
appropriate test for "lawfully) in her own hands and not granted out to another, and
heritably.

[103] This writ is a precipe writ and thus brings the case immediately into the king's court
and not into a feudal court. Thus if it were a writ of right the specification of the venue
would deprive the lord of his court.