New clauses.

this re-issue (46), saving all existing liberties and free customs. The chief alterations are: In the essential clauses of John's charter (39, 40), the words already referred to (supra, p. 127) were added, apparently for the sake of greater accuracy; and, probably as a concession to the old feudal party, who regarded with dislike all extension of the central royal jurisdiction, the assizes of the itinerant justices were reduced from four to one annually; and the direction for the election by each county of four knights to take the recognitions is omitted, the knights of the county generally being substituted.

In addition to the 46th, the other new clauses in Henry's second charter are the 39th, 42nd, 43rd, 44th, and 47th. By clause 39 land was forbidden to be aliened by gift or sale, unless sufficient were retained to answer for the services due to the superior lord of the fee.1 The 42nd directs that the county court shall be holden but from month to month, the sheriff's tourn but twice in the year, and the view of frankpledge at Michaelmas; regulations probably dictated by the jealousy of the feudal lords exercising local franchises.

The 43rd restrains fraudulent gifts in mortmain to religious corporations: 'It shall not be lawful from

lands afforested by Richard and John were to be at once deafforested, as well as such lands afforested by Henry II. as were not within the bounds of the royal demesne. The penalty of death or mutilation was forbidden for the future, fine, imprisonment, or banishment from the realm being substituted (art. 10); but the cruel mutilation of dogs, in order to prevent them from being used in hunting, was expressly retained and regulated (three claws of the forefoot were to be cut off). See the Charter of the Forest, and the Assize of Woodstock, with which it should be compared, in Select Chart. 150, 339.

This prohibition applied both to tenants in capite and to tenants of mesne lords. It was doubted whether tenants in capite could aliene any part of their lands without the royal licence, but by statute 1st Edward III. c. 12, it was declared that the king should not hold such lands as forfeit, but that a reasonable fine should be paid into the Chancery. With regard to tenants of mesne lords, this prohibition of Magna Charta was repealed by the statute Quia Emptores, 18th Edward I., which put a stop to sub-infeudation and gave free liberty of alienation in whole or in part, with reservation of the services to the superior lord of the fee. Supra, p. 62.

henceforth to any to give his lands to any religious. house, and to take the same land again to hold of the same house; nor shall it be lawful to any religious. house to take the lands of any, and to leave the same to him of whom he received it. If any from henceforth give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee.'1

The 44th clause asserts the king's right to scutage 'sicut capi consuevit tempore Henrici regis avi nostri;' and the 47th directs the immediate destruction of the 'castra adulterina' (a phrase forcibly recalling the disorders of Stephen's reign), either erected or rebuilt since. the commencement of the barons' war.

Henry III's
Third Charter,
A.D. 1225. (9,

In the 9th year of his reign, Henry, who was now declared of age, re-issued Magna Charta and the Charter of the Forest, in consideration of the grant of an aid of Henry III.) a fifteenth.' They contained only two alterations of importance: (1.) In the preamble, the words 'spontanea et bona voluntate nostra' were substituted for the 'consilio;' a change which, though capable of being interpreted as an assertion on the king's part of his independence of

1 The term mortmain, in mortuâ manu, applies generally to alienations of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal; but it is used specially with reference to religious houses whose enormous acquisitions of landed property and subtle evasions of the law gave rise to a series of restraining enactments. The earlier measures seem to have been specially directed against the fraud so frequently committed upon the feudal lords by pretended and colourable donations to religious houses with the intention of receiving the lands back again freed from the feudal obligations. Henry II. endeavoured to check this abuse by exacting scutage and the other feudal dues from the lands held in chief by the clergy (Const. of Clarendon, c. xi.); and the present clause of the Great Charter seems to refer to fraudulent as opposed to innocent alienations. But its effect, as expounded in the following reign by the Statute de Religiosis, 7th Edward I., was to prohibit gifts of land to religious houses generally-i.e., even in cases where the religious house did not give the land back to hold of the house, but kept it wholly to themselves. The clerical evasions of this statute were successively and at length effectually met by the 13th Edward I. (Westminster II.) and the 15th Richard II. c. 5.-2 Inst. 74; Finlason, Reeves, i. 274.

Subsequent confirmations of the Charter.

the counsel of his baronage, was, with greater probability, intended to obviate any subsequent evasion by him on the ground that his former charters, having been granted by others in his name during his minority, were no longer binding on himself. (2.) A final clause was added specifying the grant of the 'fifteenth' as the price of the king's concession: 'And for this our gift and grant of these liberties and of other liberties contained in our charter of liberties of the forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and all our subjects have given unto us the fifteenth part of all their moveables. And we have granted unto them for us and our heirs that neither we nor our heirs shall procure or do anything whereby the liberties in this charter contained may be infringed or broken; and if anything be procured by any person contrary to the premises, it shall be had of no force nor effect.' 2

It is in the form in which it was promulgated in the 9th Henry III. that Magna Charta was confirmed by Edward I. in the twenty-fifth year of his reign. The copy which heads our statute book is taken from an Inspeximus of the charter, so called from the letters patent prefixed in the name of Edward I., 'Inspeximus Magnam Chartam domini Henrici quondam regis Angliae patris nostri de libertatibus Angliae in haec verba.' Regarding the charter as the palladium of the nation's liberties, the people for centuries were ever ready to purchase its confirmation from successive kings by the grant of a liberal subsidy. In this way it was solemnly confirmed no less than thirty-seven times down to the

Post multas vero sententiarum revolutiones, communiter placuit, quod rex tam populo quam plebi libertates, prius ab eo puero concessas, jam major factus indulsit.'—Ann. Dunstapl. p. 93, A.D. 1225; Select Chart. 314.

2 Stat. of the Realm, Charters of Liberties, 22-25; Select Chart.

second year of Henry VI. To have produced it,' remarks Sir James Mackintosh, 'to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtue which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice, if indeed it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers.' 2

The king personally took part in all branches of administration.

CHAPTER V.

ADMINISTRATIVE SYSTEM UNDER THE NORMAN AND
PLANTAGENET KINGS.

AT the head of the whole administrative system was the King himself, personally taking part not only in legislation but in fiscal, judicial, and every other kind of executive business.1 It was not till long after the Conquest that the kings of the English ceased, occasionally at least, to attend and take part in the proceedings of their courts of law. Henry II. used to assist in dispensing justice both in the Curia Regis and in the Exchequer. King John personally decided a case in the Exchequer in the sixth year of his reign. Henry III. frequently sat in Westminster Hall with his judges; and several instances are recorded of criminal jurisdiction exercised in person by John, Henry III., Edward I., and Edward II. Still, the exercise of ordinary jurisdic

1 The Norman period, comprising the reigns of the Conqueror and his three successors, was the epoch of the growth of a new administrative system, having the source of its strength in the royal power. The constitution of this system distinguishes it from that of earlier and later times. In the earlier history, constitutional life seems to show itself first in the lower ranges of society, and to rise by slow degrees and unequal impulses towards the higher; in the later history, the equilibrium of the government system is maintained by regulating the balance between popular liberty and administrative pressure. The foundation of the administrative system marks the period that intervenes and this foundation was the work of these four reigns. Under the new system, it is from the person, the household, the court, and the council of the king that all constitutional power radiates; and in very many respects both the machinery and the termi nology of government bear, down to the present day, marks of their origin in the domestic service of the palace.'-Stubbs, Const. Hist. i. 337, 338.

2 Allen on the Royal Prerogative, 92; Madox, Hist. of the Exch.