Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
It is a common error to suppose that this Assize restores wardship to
the lord.
Footnote 386:
See _Pipe Roll_, 29 Henry II., cited Madox, I. 483.
Footnote 387:
Cf. _supra_, p. 78.
Guardians were of two kinds. The king might entrust the lands to the
sheriff of the county where they lay (or to one of his bailiffs), such
sheriff drawing the revenues on the Crown’s behalf, and accounting in
due season at the exchequer. Alternatively, the king might make an
out-and-out grant of the office, together with all profit to be derived
from it, to a private individual, either some royal favourite or the
bidder of the highest price. Commentators of a later date[388] apply the
word “committee” to the former type of guardian, reserving “grantee” for
the latter. This distinction, which is mentioned by Glanvill,[389]
obtains recognition in this passage of the Charter. Neither was likely
to have the interests of the minor at heart. Both would extort the
maximum of revenue, the one for the king, the other for himself. They
had always strong inducements to exhaust the soil, stock, and timber,
uprooting and cutting down whatever would fetch a price, and replacing
nothing. The heir found too often a wilderness of impoverished lands and
empty barns.
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Footnote 388:
_E.g._ Coke, _Second Institute_, p. 13.
Footnote 389:
VII. c. 10.
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The remedies proposed by Magna Carta were too timid and half-hearted;
yet something was effected. It was unnecessary to repeat the recognized
rule that the minor must receive, out of the revenues of the land,
maintenance and education suited to his station; but the Crown was
restrained by chapter 3 from exacting relief where wardship had already
been enjoyed; chapter 37 forbade John to exact wardship in certain cases
where it was not legally due; while here in chapter 4 an attempt was
made to protect the estate from waste.
The promised reforms included a definition of “waste”; punishment of the
wasteful guardian; and protection against repetition of the abuse. Each
of these calls for comment. (1) _The definition of waste._ The Charter
uses the words “_vastum hominum vel rerum_” (a phrase which occurs also
in Bracton).[390] It is easy to understand waste of goods; but what is
"waste of men"? An answer may be found in the words of the so-called
“unknown Charter of Liberties,”[391] which binds guardians to hand over
the land to the heir “_sine venditione nemorum et sine redemptione
hominum_.” Clearly, to enfranchise villeins was one method of “wasting
men.” The young heir, when he came to the enjoyment of his estates, must
not find his praedial serfs emancipated.[392] The words of the “unknown
Charter” may be used to illustrate the text, even if it be a forgery,
since a consensus of opinion holds it to be either contemporary or of
slightly later date.[393]
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Footnote 390:
II. folio 87.
Footnote 391:
See Appendix.
Footnote 392:
Public-domain text, read in full here on John Shaqi.
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