CHAPTER FORTY-FIVE.
Nos non faciemus justiciarios, constabularios, vicecomites vel ballivos, nisi de talibus qui sciant legem regni et eam bene velint observare.
We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.
The object of this plainly worded clause was to prevent the appointment of unsuitable men to responsible offices under the Crown. The list of officers given is a comprehensive one—justices, sheriffs, constables and bailiffs—embracing all royal ministers and agents, both of the central and of the local government, from the chief justiciar down to the humblest serjeant.[[956]] The clause was directed in particular against John’s foreign favourites such as the Poitevin Bishop of Winchester, Peter des Roches,[[957]] who had wielded and abused the authority of chief justiciar in 1214 when the king was abroad, or such as Engelard de Cygony and the other tools of John’s extortions, stigmatized by name in a later part of Magna Carta,[[958]] who had filled various posts as sheriffs, wardens, and officials of the exchequer. Such men had no interests at stake in England, and little love for its customs and free traditions. In future John must choose a different type of servants, avoiding all such unscrupulous men, whether Englishmen or foreigners, as were ready to break the law in their master’s interests or their own. There is thus no difficulty in understanding what class of men were here excluded from office; but what class were to fill their places? Bishop Stubbs, commenting on this passage, credits the draftsmen of the Charter with an intention to secure the appointment of men well versed in legal science: “on this principle the steward of a court-leet must be a learned steward.”[[959]] The clause of Magna Carta, however, refers exclusively to royal nominees, not to the officers appointed by mesne lords to preside over their feudal courts. The barons appointed their own stewards and bailiffs, and had no wish to hamper their own freedom of choice; but only that of the king. Further, it was not great lawyers whom the barons desired John to employ, but plain Englishmen with a rough-and-ready knowledge of insular usage, who would avoid arbitrary acts condemned by the law of the land. The barons at Runnymede in 1215 desired exactly what the council of St. Albans had desired on 4th August, 1213, when it issued formal writs commanding all sheriffs and foresters to observe the laws of Henry I. and to abstain from unjust exactions;[[960]] and it must be remembered that these laws of Henry were but the older laws of Edward Confessor slightly amended.
The attitude of John’s barons was the same as that of Henry’s barons, when the latter declared in 1234 in such emphatic terms that they did not wish the laws of England to be changed.[[961]] They were far from desiring to be governed by ministers deeply versed in the science and literature of jurisprudence, since these would necessarily have been churchmen and civilians. The laws which the Crown’s officers must know and observe were the old customary laws of England, as opposed alike to the canon law and the civil law of Rome. Honest Englishmen were wanted, with a reputation for straightforward dealing and in sympathy with native prejudice. Crown ministers might do well enough without any academic training in an age when only one short treatise on the law of England had been written (that of Glanvill); while the stewards of court leets, referred to by Bishop Stubbs, might even be ignorant of the common law, provided they were versed in “the custom of the manor.”
This provision of Magna Carta, directed primarily against alien sheriffs, castellans, and other ministers, disappeared in 1216 (without any comment in the so-called “respiting clause”), along with several provisions of a temporary nature, also directed against foreigners. Even if this well-meaning chapter of John’s Great Charter had remained in force, it would not have effected much, in the absence of adequate machinery to ensure its enforcement. In promising the selection of such ministers as knew the law and meant to keep it, John remained sole judge of the men appointed and their intentions. The clause indicated no standard of fitness to which appeal could be made, no neutral arbitrator to decide between the fit and the unfit, and no sanction to enforce compliance on an unwilling king. Half a century later, the Provisions of Oxford gave proof of some advance in political theory. They contained an expedient, crude enough it is true, for constraining royal officials to keep the law. Forms of the oaths of office to be taken by castellans and ministers of all grades were carefully provided.[[962]] Even this was only a first step towards settling a problem which was not completely solved until, after the struggles of many centuries, the modern doctrine of ministerial responsibility was firmly established.
[899]. A convenient short account of the forests, with their special laws, special officials, and special courts, will be found in W. S. Houldsworth’s History of English Law, pp. 340-352. For fuller information see Dialogus de Scaccario, I. xii.; John Manwood, Book of the Forests (1598); Coke, Fourth Institute, 289–317; G. J. Turner, Preface to Select Pleas of the Forest (1901); and an article in the Edinburgh Review for April, 1902.
[900]. Select Charters, 156.
[901]. Select Pleas of the Forest, xiii.
[902]. See W. Coventry, II. 207, and Stubbs’ Preface, lxxxvii. By a writ of 18 May, 1204 (New Rymer, I. 89), he disafforested all Devonshire except Dartmouth and Exmoor.
[903]. R. Wendover, III. 227. This, however, is clearly a biased account of the king’s resumption of forest tracts illegally put under cultivation by way of purpresture.
[904]. See Select Pleas of the Forest, xiv. The permanent routine work performed by this functionary must not be confused with the intermittent duties of the Justices of Forest Eyres: although he was almost invariably a member of the commission who went on circuit: e.g. chapter 16 of the Forest Charter speaks of the Chief Forester holding pleas of the forest.
[905]. Select Pleas, xv.
[906]. Mr. Turner, in Select Pleas, xvii.
[907]. Engelard de Cygony, for example, whose name appears in chapter 50, occupied this double position. Chapter 16 of Carta de Foresta forbids castellans to determine pleas of the forests, thus strengthening the presumption that wardens were usually constables.
[908]. Select Pleas, xix.
[909]. Ibid., xxi.
[910]. The same chapter, however, fixed the rates of “chiminage.”
[911]. For the earliest notice of verderers see Select Pleas of the Forest, xix., n. Their appointment in the county court may indicate that they acted in some measure as a check on the professional foresters in the interests of the people generally, as well as a check on the warden in the interests of the king. Within the forest the warden, with the verderers and foresters, offered an exact parallel to the sheriff with the coroners and bailiffs (or serjeants) in other parts of a county.
[912]. See Carta de Foresta, c. 6.
[913]. After 1217, if not before, it was one of their duties to fix the number of foresters required, so that the inhabitants need not groan under a heavier burden than necessary.
[914]. In one document they were styled agistatores precii (Select Pleas, p. 1.), which suggests that fixing the rate was their chief duty. “Agist” was a general term; it was apparently correct to speak of "agisting a wood”,[wood”,] of “agisting cattle,” and of “agisting the money due.”
[915]. Carta de Foresta, c. 8.
[916]. Select Pleas of the Forest, xxx.
[917]. Select Pleas of the Forest, p. 42.
[918]. Dialogus, I. xi. E.
[919]. It is expressly stated in the Carta de Foresta (1217) that only the verderers and foresters need be present at the June moot, and the same officers, with the agistors, at the two others. The public were specially exempted.
[920]. Select Pleas of the Forest, cix. et seq.
[921]. Ibid., cxvii.
[922]. Statute of Merton, c. 11.
[923]. Select Pleas of the Forest, cxxiii.
[924]. Ibid., cxxviii-cxxix. Wild cats should perhaps be added.
[925]. See W. S. Houldsworth, History of English Law, p. 346.
[926]. See Select Charters, 552.
[927]. Some of these Magna Carta sought to guard against. See c. 48.
[928]. Rights of hunting were sometimes conferred on subjects over territory which was not their own. Richard I., by a charter, granted permission to Alan Basset to hunt foxes, hares, and wild cats throughout the realm. See Round, Ancient Charters, No. 18.
[929]. This is implied in the terms of Stephen’s Oxford Charter. An example of an act of afforestation by Henry is given in Select Pleas, 45, which shows how “a district could be afforested in a moment by the mere word of the monarch; it took centuries to free it from the royal dominion.” See Edinburgh Review, vol. cxcv. (1902), p. 459. Even the Forest Charter (cc. 1 and 3) admitted the Crown’s right to afforest woods on its own demesne—reserving, indeed, common of pasture to those with legal rights thereto.
[930]. The policy of Henry I., Stephen, and Henry II. respectively is well illustrated by the case of Waltham forest in Essex. See Round, Geoffrey de Mandeville, 377–8.
[931]. This group of grievances was partly remedied by chapters 47 and 53 of Magna Carta. The former provided for the summary disafforestation of all districts made forests by Richard and John, while the latter showed a more judicial spirit in the undoing of the similar work effected by their father. The Carta de Foresta of 1217 contained clauses which took the place of these somewhat crude provisions.
[932]. See Rot. Claus., I. 85 (dated 11 June, 1207).
[933]. For detailed information as to wastes, purprestures, and assarts with their ascending scale of penalties, see Select Pleas, lxxxii.
[934]. See Assize of Woodstock, article 7.
[935]. See Carta de foresta, c. 12.
[936]. Ibid., c. 13, another clause (c. 14) forbade ordinary foresters to exact chiminage, and fixed the rates payable to those with vested rights at two pennies for each cart per half-year, and one half-penny for each sumpter horse.
[937]. See Assize of Woodstock, article 3.
[938]. See Select Pleas, 123 (6 Edward I.).
[939]. Select Pleas, 127 (1278-9). This was a heavy rate, the more remarkable in face of the provisions against “chiminage” in Carta de foresta, c. 14.
[940]. Assize of Woodstock, article 14. Cf. Carta de foresta, c. 6.
[941]. Ibid., article 2.
[942]. Ibid., article 15.
[943]. See Carta de foresta, c. 2.
[944]. At one time it had evidently been the practice to exact an ox in reparation of such transgression, thus leaving the peasant without the means of tilling his land. The Forest Charter (c. 6) limited the fine to 3s.
[945]. See Select Forest Pleas, p. 4.
[946]. Select Pleas, 50.
[947]. Select Pleas, 126.
[948]. See infra, under c. [47].
[949]. The “assisa et consuetudines forestae,” issued by Edward I. in 1278, although merely declaratory, may have done something towards curtailing the limits of discretionary authority. See Statutes of Realm, I. 243, and Bémont, Chartes, lxv.
[950]. See S. R. Gardiner, Hist. Engl., VII. 363, and VIII. 282.
[951]. 16 Charles I. c. 16.
[952]. Commentaries, III. 72.
[953]. By 57 George III. c. 61.
[954]. In virtue of a series of Acts of which 14-15 Victoria c. 42 is the latest.
[955]. See Stephen, Commentaries, II. 465-6.
[956]. Constable and bailiff are discussed supra, c. 24, and shown to include forest magistrates, supra, c. 44.
[957]. See supra, 36–7, and cf. Blackstone, Great Charter, viii.
[958]. See c. 50.
[959]. Const. Hist., I. 578, n.
[961]. “Nolunt leges Anglie mutare que usitate sunt et approbate.” See Statute of Merton, c. 9.
[962]. See Select Charters, 388–391, and Madox, II. 149, with authorities there cited.