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council which approved this ordinance also approved the Provision relating to the unlawful marriage of wards under fourteen.
The eighth clause of the Provisions of Merton had already been the subject of an ordinance. In the eighteenth year of the reign a parliament was held at Westminster; and its proceedings and the names of the bishops, earls, and barons who attended it are recorded on the coram rege rolls * for that year. Three ordinances were approved. The first was a bastardy ordinance which declared that when in any plea an exception was raised that the demandant was born before the marriage of his father and mother, the question, whether he was or was not so born, should be referred to the bishop. Pursuant to this ordinance a precedent of a writ was framed, which was directed to the bishop, and required him to answer the question specifically. The second and third ordinances of the same parliament relate to the assizes of darein presentment and juris utrum; and all three of them also occur in Bracton's Note Book.
At this time the bishops felt strongly that children born before marriage ought to be as legitimate as those born afterwards. When, therefore, they were directed to make an inquisition pursuant to the ordinance, they objected to giving the specific answer required by it; and at the Merton parliament the law relating to such bastardy, which was called special bastardy, is stated to have been discussed. The bishops said that they would not and could not answer the question quia hoc esset contra communem formam ecclesiae ; the barons that they would not change the laws of England quae usitatae sunt et approbatae. Matters remained afterwards as they were then. The bishops
* The particular roll is one of those included in the rolls now called Curia Regis Rolls, 115.
refused to answer the question, and the barons refused to amend the law.
The position which these three ordinances occupy on the coram rege rolls leaves us in no doubt about their date. But if there could be any doubt, it would be dispelled by the fact that the precedent of the writ to be addressed to the bishop ordering him to make an inquisition of special bastardy is written on the Close Roll of the eighteenth year of the reign; and immediately above this precedent there is written one of the other ordinances which were made at the same time.
Now Bracton, both in his treatise and his Note Book, appears to have inverted the order of events, and to have imagined that the ordinance of the eighteenth year was the result of the discussion of the twentieth year. The Note Book follows the enrolment on the coram rege rolls, but with some important variations. First, there are no dates. Secondly, the bastardy ordinance is introduced by a clause, which in substance combines the preamble to the Provisions of Merton, as printed in the Statutes of the Realm, with their eighth clause about the refusal of the barons to alter the law. Thirdly, the ordinance begins with the words, Postea uero alio die. In his treatise he gives dates. The introductory clause is dated on the same day as the Provisions of Merton, that is the morrow of St. Vincent; while the ordinance is dated on the same day as the ordinance on the coram rege rolls, but in the same year as the Provisions, that is, the twentieth instead of the eighteenth year of Henry III. In other respects the treatise and the Note Book agree.
The story* as told in the treatise must be inaccurate; for we have positive proofs that the bastardy ordinance was
* It is discussed fully in the introduction to the Note Book; but nothing is said of the ordinance relating to attorneys to be noticed presently.
made in the eighteenth and not in the twentieth year of the reign. But the Note Book gives us no dates, and it is conceivable that it is, in substance, an accurate account of the sequence of events. It is possible that the baronial Nolumus was not uttered at the Merton parliament; it may, as Bracton states, have preceded the ordinance, and the ordinance may have been intended as a settlement of the dispute. One argument against this proposition is that there was no settlement; the bishops did not consent to answer the question to be referred to them under the ordinance. Another argument is a writ, dated gth May, 1236, addressed to the Archbishop of Dublin and the Justiciar of Ireland. It states that in the preceding year it had been provided that such an issue should be settled by the bishops; that afterwards the bishops refused to determine the issue in the manner which had been provided ; and that it was to be determined, in future, by the King's Courts. The writ is strong evidence that Bracton's story is false, both as regards dates and the sequence of events; and the learned Editor of his Note Book arrives at the conclusion that the Nolumus did in fact follow, and not precede, the ordinance. In spite of this, the evidence that the Nolumus clause belongs to the Provisions of Merton is not very strong.
The Provision which follows that dealing with special bastardy is in these words :
Provisum insuper quod quilibet liber homo qui sectam debet ad comitatum thrithingam hundredum et wapentachum vel ad curiam domini sui libere possit facere attornatum
ad sectas illas pro eo faciendas. The writ to the sheriffs already mentioned says nothing about the appointment of attorneys There is no such clause in the Provisions of Merton as they are stated in the history of Mathew Paris, nor in the Annals of Burton, nor
in either of the two* codices at the British Museum, which contain early transcripts of the Provisions of Merton. In point of fact there had already been legislation about attorneys and of the same nature. Early in the eighteenth year of Henry III., almost two years before the Merton parliament, an ordinance issued from St. Edmunds, which treated the subject more fully. The instrument is enrolled upon the Close Rolls, and there can be no possible doubt as to its date.
Rex vicecomiti Kancie Salutem Scias quod per commune consilium regni nostri prouisum est quod quilibet liber homo qui sectas debet nobis in comitatibus hundredis wapentacis et aliis curiis nostris libere faciat attornatum suum coram balliuo nostro ad sectam illam faciendam et curias domini sui et libertates exigendas et ad loquelas prosequendas et defendendas pro dominis suis motas in comitatibus hundredis wapentacis et aliis curiis nostris sine litteris nostris Prouisum est eciam quod quilibet liber homo qui sectam debet ad curiam cuiuscunque siue ecclesiastice persone siue laice attornatum suum faciat sine difficultate ad sectam pro eo faciendam et ad curias domini sui et libertates exigendas et ad loquelas prosequendas et defendendas pro dominis suis motas in curiis predictis sine litteris nostris ut predictum est, precipue cum in carta de libertatibus concessis probis hominibus regni contineatur quod tales libertates quales nos pro nobis et heredibus nostris eis concessimus tales teneant suis et aliis in curiis et libertatibus suis. Et ideo tibi precipimus quod hanc prouisionem nostram et concessionem clamari facias et teneri per totam balliuam tuam et si quis distringatur ad sectam faciendam in curiis vel libertatibus alicuius uel impediatur quominus possit
* That is Julius D., vij., and Harleian, 746.
attornatum suum facere ad loquendas prosequendas et defendendas
dominis suis motas sine litteris nostris in curiis et libertatibus predictis contra hanc prouisionem nostram tunc aueria sua propter hoc capta sine dilacione deliberari et plenam iusticiam inde exhiberi facias Teste me ipso apud sanctum Edmundum xij. die Februarii.
Eodem modo scribitur omnibus vicecomitibus Anglie. In the face of this ordinance, it is hardly possible to contend that the ninth clause of the Provisions of Merton, as printed in the Statutes of the Realm, is a genuine piece of legislation. It can, indeed, hardly be represented as anything else than a brief statement of the law made two years earlier. This leaves the Nolumus clause in suspicious company. It follows the provision dealing with the date of limitation of writs of right, which was undoubtedly made after the Merton parliament. It is followed by another clause which almost certainly is a mere statement of a law made two years earlier. Though there is, as has been seen, strong evidence in favour of the Nolumus having been proclaimed at Merton, that evidence is hardly conclusive ; and it may be that early in the eighteenth year of the reign special bastardy was under discussion, and the barons refused to alter the laws of England. If this could be established, then the ordinance on the coram rege roll was, as Bracton thought, no doubt intended to be a termination of the dispute; and the intention of the ordinance was only defeated by the bishops individually refusing to make the inquisitions which it required. Unfortunately for this theory Bracton himself mentions the Nolumus as having been uttered at Merton; and one of the two early transcripts of the Provisions at the British Museum contains the clause.
G. J. TURNER.