[962]. See Select Charters, 388–391, and Madox, II. 149, with authorities there cited.
CHAPTER FORTY-SIX.
Omnes barones qui fundaverunt abbatias, unde habent cartas regum Anglie, vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut habere debent.
All barons who have founded abbeys, concerning which they hold charters from the kings of England, or of which they have long-continued possession, shall have the wardship of them, when vacant, as they ought to have.
The religious houses of the various orders, (abbeys, priories, and convents), which had increased so rapidly in number since the reign of Henry I., fell naturally into two classes according as they had been founded by the king or by private individuals. The king or the great baron, in bestowing lands on a religious foundation, reserved, either expressly or by implication, certain valuable rights of property, of which the control over the election of the abbot or prior, together with the wardship of the fief during vacancies, were the most important. King John, while by his separate charter to the clergy he had renounced in favour of all churches and monasteries, cathedral and conventual, all control over election of prelates, had carefully reserved his rights of wardship; and the barons insisted that the proprietary rights of mesne lords who had founded religious houses, should also be respected. John however, wherever he had any plausible pretext, usurped the wardship over private foundations, in addition to his own. It would appear from the terms of a later chapter,[[963]] that in 1215 the Crown actually held in ward certain abbeys founded by mesne lords, for provision is there made for their restoration. The present chapter looks to the future, forbidding new usurpations of this nature.
In the reissues of the Charter certain verbal changes occur, but it is not clear that they imply any changes of substance. In 1216 the words “and as it has been above declared” were added, implying that the rights of mesne lords were to be restricted by the rules previously laid down in chapter 5, as to wardship—rules especially applied to the lands of bishoprics and religious houses in 1216 by a clause which had no parallel in John’s charter.[[964]] In 1217 three other small changes tend to widen the scope of the clause. The “barons who have founded abbeys” of John’s grant become “the patrons of abbeys”; royal “charters” become more explicitly “charters of advowson”; “ancient tenure” is expanded into “ancient tenure or possession.”[[965]]
Is it possible that the influence of the Church was powerful enough at Runnymede to prohibit all mention of lay “patrons” and lay presentations or “advowsons”; whereas it was powerless to prevent the barons pressing their rights of patronage two years later? John’s promise of free canonical election[[966]] had interfered with royal patronage, and Stephen Langton would be unwilling to admit a subject’s claim to rights which he had forced the Crown to renounce. The question of lay patronage, indeed, was not directly raised in any version of Magna Carta; but prior to 1215 John seems to have interfered between abbeys and their founders. On 16th August, 1200 he granted to William Marshall, Earl of Pembroke, the privilege of bestowing the pastoral staff of Nuthlegh Abbey, which lay within that nobleman’s fief; this shows that John forbade appointments without royal licence.[[967]] The present chapter of Magna Carta made little difference in practice. Henry III. claimed wardship over abbeys and priories formed by earls and barons on their own fiefs, and kept them vacant, by preventing their patrons making appointments without his licence.[[968]]
CHAPTER FORTY-SEVEN.
Omnes foreste que afforestate sunt tempore nostro, statim deafforestentur; et ita fiat de ripariis que per nos tempore nostro posite sunt in defenso.
All forests that have been made such in our time shall forthwith be disafforested; and a similar course shall be followed with regard to river-banks that have been placed “in defence” by us in our time.