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.
If any one holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed to us, it shall be lawful for our sheriff or bailiff to attach and catalogue chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of lawful men, provided always that nothing whatever be thence removed until the debt which is evident[[667]] shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares.
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]]
[667]. Cf. the use of the phrase “a liquid debt” in Scots law.
[668]. Cf. what is there said of the sheriff’s oppressions and the attempts made to put an end to them.
[669]. The subject is exhaustively discussed by Pollock and Maitland, II. 312-353.
[670]. See Pollock and Maitland, II. 324.
[671]. On 30th August, 1199 (New Rymer, I. 78) John confirmed the testament of Archbishop Hubert Walter; and on 22nd July, 1202, (Ibid., I. 86) he granted permission to his mother, the dowager Queen Eleanor, to make a Will.
[672]. The reissue of 1216 makes no alteration here, but that of 1217 omits “et pueris,” thus protecting the wife’s “reasonable portion” but not that of the sons. The words omitted were restored in 1225. It was probably a mere clerical error.