Page images

codex, we may possibly draw some inference as to the date of an article in another part. For instance, the codex in which the Assisa Panis of John occurs, also contains a transcript of the Provisions of Merton. The fact that this ordinance was replaced in the year 1256, or thereabouts, by another, and the fact that the chronicle which precedes it stops at about the same year are evidence of the time when the codex itself was written. It may indeed reasonably be inferred, that we have here a copy of the Provisions of Merton in the form, in which they were known to lawyers some five and twenty years after they were enacted.

Inasmuch as this transcript of the Provisions comprises the six clauses only, which were contained in the writs sent to the sheriffs, ordering them to proclaim the new laws, we have further evidence that these laws comprised no other clauses.

Let us now consider the clauses included in the Provisions of the Statutes of the Realm, but not included in the writs sent to the sheriffs. Of all of them the one which refers to the unlawful marriage of heirs under fourteen is the most embarrassing. There are no references to it on any of the Chancery rolls for the year in which the Provisions were made nor on those of the next preceding or succeeding years. On the other hand, forty years later it was officially considered to be an integral part of them ; for we read in the Statutes of Westminster the First,

Des heyrs mariez dedenz age saunz le gre de lur gardeins auant le age de quatorze aunz seit fet solum ceo quil est contenu en la Proveaunce de

Merton. Any satisfactory explanation of the absence of this Provision from the writs to the sheriffs, and from the early transcripts, ought to explain how it subsequently became inserted in the later transcripts, and became officially recognised by the Statutes of Westminster the First to be a part of the Merton legislation.

It appears from the Annals of Tewkesbury that on the death of Gilbert Earl of Clare in 1230, the king entrusted Richard de Clare his son and heir to the guardianship of the illustrious Hubert de Burgh, Earl of Kent, and that the boy remained in his custody until October, 1232, when the King deprived De Burgh of all his offices and granted this wardship to his favourite Peter des Roches. While Richard was in his custody, De Burgh seems to have arranged for the boy's marriage with his daughter Margaret ; and a marriage was afterwards solemnized between them. The Annals of Tewkesbury* tell us that the young Earl was born in August, 1222; and the Annals of Worcestert give the date of the marriage as 1236. There is some little doubt as to this last date ; but in any case the boy was married before he had completed his fourteenth year. When the King pardoned De Burgh, at Gloucester, in 1234, he made him swear that he would never speak of Richard de Clare again.

$ On the morrow of Michaelmas, in the twenty-first year of his reign, Henry summoned De Burgh to answer for his conduct in allowing his daughter Margaret to marry the Earl of Clare. De Burgh asked for further time, so that he might have advice as to his defence. The King gave him another day at Kennington, and on the appointed day the accused appeared, and said that he had not meddled with the marriage since peace was made between the King and himself at Gloucester. His story was that his wife, the Countess of Kent, had declared in his absence that matters had gone so far with her daughter, that there

faun. Mon., i., 102. I The story is told on the Close Roll for 21 Hen. III., but the whole has been re-printed, not without errors of transcription, in Shirley's Royal Letters (Chron. and Mem.), ii., 375.

* Ann. Mon., i., 66.

must be a marriage, and accordingly a marriage there was at St. Edmonds, while he himself was being besieged by the King at Merton and knew nothing of Richard de Clare. If this story be true, the marriage must have been solemnized as early as 1233.

It is clear that the marriage question was being agitated before the date of the Provisions, probably while Richard de Clare was in the custody of De Burgh. There is also evidence that the King only heard of the marriage afterwards. He certainly felt very strongly on the subject. It may well be that he proposed at the Parliament at Merton a new law concerning wards; that his proposals were not approved at the time, but that he afterwards succeeded in getting the assent of his council to the clause, which is now considered to form part of the Provisions.

It will be remembered that the clause, which deals with the time of limitation in writs of right and certain other writs, does not occur in the writ sent to the sheriffs ordering the new laws to be proclaimed: but that an order was given in the following year that it should be observed in Ireland as in England. The Statutes of the Realm contain a copy of this order, but they do not notice the fact that the whole clause is written on the Close Roll* of 21 Henry III. as a new piece of legislation. Now it is very significant that in the margin opposite to the enrolment the word approbatur is written. The Provisions as they are printed contain two clauses which relate to matters said to have been discussed at the Parliament, but not the subject of legislationspecial bastardy and trespasses in parks. No great effort is required for a belief that the clause which deals with the limitations in writs was also discussed at the Merton parliament; and that the discussion resulted in the ordinance on the subject in the following year. Perhaps the same

* Close Roll 49, memb. 17, in dorso.

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.

« PreviousContinue »