Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum parentum et amicorum suorum, per visum ecclesiae distribuantur, salvis unicuique debitis quae defunctus ei debebat.
If any free man shall die intestate, his chattels are to be distributed by his nearest kinsmen on both sides of his family, under the supervision of the church, but saving to everyone the debts which the dead man owed him.
Clause 27 has the appearance of a sequel to Clause 26 of Magna Carta. But although they cover some of the same ground, the application of Clause 26 was narrower than that of Clause 27, in that the former was specifically confined to tenants-in-chief, whereas the latter was concerned with all free men. The two clauses originated together in Clause 5 of the `Unknown’ Charter, probably drawn up in the early months of 1215, which was in turn based on the `Coronation Charter’ issued by Henry I at the beginning of his reign in 1100.1 These documents contained a two-fold grant relating to the disposal of the goods of the dying and the dead. The first, which was subsequently integrated into Clause 26, licensed the king’s barons and men to bestow their goods freely after they fell dangerously ill. It did not specifically confine itself to testamentary disposition, but can at the very least be readily associated with it, in the light of the second grant, which authorised the distribution of moveables, by wives, kinsmen or friends, for the good of the souls of those who had died intestate,. In both the Articles of the Barons and in Magna Carta itself, these concessions were separated to form two discrete clauses (Articles 15 and 16, Clauses 26 and 27), and their content also underwent some changes. In both Article 16 and Clause 27 the social application of the original texts was clarified, so that they covered all free men instead of `my barons and my men’, and a supervisory role in the administration of intestates’ goods was conceded to the church (a point on which both Henry I’s charter and the `Unknown’ Charter were silent), while perhaps in the king’s interest (though others must also have benefited) a proviso was added to Clause 27 stipulating that a dead man’s debts should be paid before his goods were disposed of.
By the early thirteenth century, the control and disposal of an intestate’s goods (only movables were involved) was potentially the concern of any one of three parties – the king, the church, and the lord of the deceased. When the issue was first recorded, some two hundred years earlier, the dominant role was the lord’s, and the king was concerned only to ensure that he performed it, while the church was not involved at all. Cnut’s code of 1020/1 ordained that when a man died intestate, the lord was to take no more than the heriot which was his lawful due, and that he was to see that everything else was equitably distributed between the widow, children and close kinsmen of the deceased.2 From the fact that it was found necessary to restrict their interest to heriots, it seems reasonable to deduce that lords had in fact been taking more, perhaps even treating all the goods of intestates as their own. The king’s concern for justice in his realm led to his aspiring to remedy such an abuse, but otherwise he had no interest in intestacy except where his own lordship was involved, as in the city of Hereford, for instance, where it was recorded in 1086 (among entries relating largely to the reign of Edward the Confessor) that `If anyone, overtaken by death, had not bequeathed his possessions, the king had all his goods.’3
By the time of Henry I’s charter of 1100, however, not only had the crown evidently been trying to widen its lordship where intestacy was concerned, seemingly to embrace the possessions of all tenants-in-chief who died without making a last testament, but intestacy was also coming to be increasingly seen as a specifically religious deficiency, and one which the church became particularly concerned to remedy. Henry conceded the right of widows, children and kinsfolk to distribute a dead man’s movables, and he also acknowledged that their doing so arose from concern for his soul. As the twelfth century progressed, it was increasingly accepted that their testaments constituted a last chance for the dying to obtain salvation through pious works, and that failure to grasp that chance was a grave, even a mortal, sin.4 It was in this spirit that an Essex woman making a bequest of land began her charter by declaring that `it befits the dying that every one who is able should give alms on his own behalf from his belongings’,5 and a consensus developed - one recorded by Glanvill in the late 1180s - that for the testate and intestate alike there should be a three-fold division of goods and chattels, with a third each going to the dead man’s widow and children, while the rest was at his own disposal, and therefore could – and should – be used in his last days to save his soul, either through the distribution of alms or by gifts to churches and monasteries, often both.6
Both Glanvill and the Dialogus de Scaccario (in a passage probably inserted in the late 1180s, that is, at around the same time that Glanvill was written) hint at a symbiosis of the two sins of intestacy and usury,7 in that the latter could be remedied up to the moment of death by the usurer’s drawing up a testament, thereby making restitution to those whom he had defrauded and putting himself right with God by pious bequests. But despite the religious nature of the offence inherent in usury – in particular, it involved speculating in time, which belonged to God alone8 – the movables of the man or woman found to have been a usurer were forfeited to the king. There are signs that under Henry II attempts were made to treat the goods of intestates in the same way – possibly the fact that intestacy, like usury, could be construed as involving the misuse of material goods was alleged in justification.. In 1170 a man of York, Aldred of Micklegate, was recorded as owing £40 `for the chattels of Reginald who died in his house without making any bequests (sine divisa)’,9 and two years later the chattels of one Gilbert, a Lincolnshire man, and of Pelekin, the abbot of Battle’s bailiff, who had both died intestate, were similarly accounted for.10 But whereas the forfeiture of the goods of dead usurers, which began around the same time, continued to the end of Henry’s reign (in one case the offender was recorded as intestate,11 though Glanvill ruled that this was irrelevant) and became the subject of one of the articles of the eyre – De usuris Christianorum, et eorum catallis qui sunt mortui - under Richard I,12 efforts to secure those of intestates for the crown very largely, though not entirely, petered out.
To Glanvill, the rights of the matter were straightforward: `When anyone dies intestate all his goods go to his lord, and, if he had several lords, each shall take those chattels which he finds in his fee ...’.13 The lord may then have been expected to distribute those chattels to widows, children and others, but the treatise does not say so, and in that respect its position was old-fashioned, not only in adopting a standpoint in accordance with much earlier procedure, but also in taking no account of the requirements of the church. Probably in the late 1190s, according to Jocelin of Brakelond, one Hamo Blund, a wealthy burgess of Bury St Edmunds, died leaving a most inadequate testament, in which he made bequests amounting to only three marks, though his chattels were reputedly worth nearer 200 marks. Concern for Hamo’s soul prompted the intervention of Abbot Samson. Declaring that `I was his bishop and had care of his soul’, Samson ordered that a threefold division of goods be made, with one third going to the dead man’s heir (his brother), a second to his widow, and the third `to his poor relations and other poor people ...’.14 The abbot’s choice of words is telling. He could have claimed to act as Hamo’s lord – the abbey had the right to a heriot, in the form of a horse, though Samson refused to accept it. And the extent of Bury’s privileges, which were positively regal, could have justified his acting as the king’s justices or officers would have done, by taking all Hamo’s goods on the grounds that he was also reputed to have been a usurer. In declaring himself the dead man’s bishop, Samson was aligning himself with the growing current of clerical feeling that intestacy, and its treatment, was an essentially ecclesiastical business. It was presumably in that same spirit that the abbot of Eynsham, in founding a borough at Eynsham in 1215, the year of Magna Carta, ordered that the movables of anyone dying intestate should be divided into the conventional three parts, with one third apiece going to the widow and children, and `the third part is to be shared out by his near kinsmen on behalf of his soul.’15
Paradoxically, the order in society which seems to have had most difficulty in securing the benefits of this new consensus seems to have been the church. Perhaps the fact that the clergy were now required to be celibate, and therefore should have had no wives or children of their own, led to their being expected to maintain higher standards than the laity where the disposal of their movables was concerned, and to the validity of ecclesiastical testaments being hedged with conditions. If so, it was a development capable of being used to the church’s disadvantage. According to Ralph de Diceto, Archbishop Roger of York obtained a bull from Pope Alexander III empowering him to seize the belongings of any cleric under his jurisdiction who had drawn up a testament but failed to give away all his possessions, though as things turned out, the bull provided Henry II with an excuse for confiscating all the archbishop’s own money and valuables following Roger’s death in 1181.16 Roger of Howden, whose account of Roger’s last days is basically similar to Diceto’s but makes no reference to any papal decree, described the archbishop as falling ill early in November 1181, and then, conscious that his end was near, making a complete distribution of his possessions for the benefit of the poor, in France as well as in England, a process apparently completed several days before his death on 22 November. His goods were nevertheless confiscated by the king, who claimed that Roger had himself decreed that no bequests by an ecclesiastic were valid which had not been made before the onset of his last sickness.17 The archbishop’s wealth, quite apart from the circumstances in which he had disposed of it, probably justified its sequestration in King Henry’s eyes - Diceto valued Roger’s valuables at more than £11,000, and though the pipe rolls do not confirm the sum, the fact that six carts were later needed to transport the archbishop’s money from Oxford to Marlborough suggests that the king’s haul was indeed considerable.18
The wealth of dead bishops constituted an ever-present temptation to needy rulers, and the king’s undisputed right to the custody of vacant sees was easily extended to the personal property of their late holders, as the actions of William II and Henry I show. The right known as the jus spolii, entitling the king to confiscate all the movables of a deceased prelate, was only occasionally exercised by the late twelfth century – otherwise Henry II would have needed no justification for taking Archbishop Roger’s property.19 But it had not been formally abandoned, and probably helps to explain the care later taken by a number of bishops in John’s reign not only to make testaments but also to have them confirmed by the king.20 There is no reference to it, however, in chroniclers’ accounts of the death of Geoffrey Ridel, bishop of Ely, at the beginning of Richard I’s reign. Diceto stated explicitly that Geoffrey died intestate at Winchester, whereupon all his money, amounting to 3,200 marks, along with an immense gathering of other valuables, was confiscated.21 And Gervase of Canterbury effectively corroborated this, by suggesting that the money, which was spent on Richard’s coronation, was thereby distributed for the good of Geoffrey’s soul - as an intestate’s hoard should have been - though in fact it all went to mountebanks and buffoons, and so can have done the late bishop no good at all.22 In certain circumstances the king might still take an intestate’s goods, and it was probably easier for him to do so if they were those of a bishop, with no immediate dependents to lay claim to them. But he must also have been increasingly constrained by the expectation that he would use them for religious purposes, rather than as a means of filling his treasury.
In the context of Magna Carta as a whole, one might expect Clause 27 to have been a response to numerous seizures of intestates’ goods, but in fact evidence that John acted in this way is very scarce. The possibility that he might do so is attested by William Brewer’s proffer for the wardship and marriage of Hugh de Morville’s daughter in 1202, in which he gave 500 marks for a grant which included `the issues of the same land and the chattels which were Hugh’s which are not in the lord king’s hand or which he did not bequeath in his testament ...’.23 Presumably Morville did not die intestate, but the possibility remained that he might not have disposed of all his movables, in which case the residue could be regarded as being at the king’s disposal. Not even that, however, is implicit in the early thirteenth-century story, probably by Ralph of Coggeshall, of the `Vision’ of the after-life vouchsafed to an Essex peasant named Thurkill. In his passage through hell Thurkill encountered a royal justice identifiable as Osbert FitzHervey, who died in 1206, and was now enduring well-merited torments for evil living and judicial corruption, compounded by his having died intestate.24 But although others were said to have dissipated Osbert’s ill-gotten wealth, there is no suggestion in the `Vision’ that the king was among them, and there is nothing in the pipe rolls to indicate that his belongings were treated differently from those of any other deceased tenant-in-chief. Osbert, who left a widow and an under-age heir, had built up an estate in Essex and East Anglia, and after his death his properties remained in the king’s hand for three months before being granted out in wardship; at the end of that time the king’s officer paid just over £60 into the king’s chamber `from the issues of the lands of Osbert FitzHervey, that is from the corn and livestock and rents from a quarter of a year ...’,25 but that seems to have been all, there is no reference either to chattels having been seized because of Osbert’s intestacy, or to a payment for keeping them out of the king’s hands.
When Joan, the widow of Robert of Bevercotes, gave twenty marks and a palfrey in 1208 for part of her late husband’s land, for her dower, for the disposal of her own remarriage, `and for having her reasonable share of her said husband’s chattels’,26 it is possible that she was the widow of an intestate, paying to have movable goods which ought to have been allotted to her automatically. But she may simply have been making a conventional proffer to secure her property and rights. A case from August 1216, when Peter de Maulay, as castellan of Corfe Castle the king’s leading supporter in Dorset and Somerset, was ordered to let Ralph de Bray have the estate of his nephew Walter, who was presumably a loyalist since he had been in the king’s service at Corfe in the previous year, and `cause him to have the chattels found on that land, for distribution for Walter’s soul’,27 is probably more likely to have resulted from intestacy, and has the added interest of showing the king, who seems to have acted as though he had Walter’s chattels at his disposal, apparently acting to remedy the dead man’s failure to make a testament without any ecclesiastical involvement. But although John may still have been inclined to commandeer intestates’ goods when the opportunity arose, especially under the pressure of civil war, he very rarely seems to have done so.
The presence of Clause 27 in Magna Carta can probably be attributed at least as much to tidy-mindedness, by a wish to provide rules for intestacy in the same way that Clause 26 did for the observance of the testaments of such as made them, as to any particular transgressions on the part of King John’s government – although it is possible that behind it lay some notorious, but unrecorded, act of misappropriation at the expense of a dead man’s soul, the surviving evidence suggests that among the exactions of that government, those associated with intestacy were probably few in number, and not such as to attract much opprobrium. If there was a demand for action on the issue, it probably came from the church rather than the barons, and indeed, it may have been directed by the church as much against secular lords as against the king. Clause 27 was dropped from the reissue of 1216 and its successors, but statutes for the diocese of Worcester in 1219 made the bishop responsible for ascertaining whether members of the clergy had died intestate or not, and further statutes in 1229 showed the bishop to be concerned for the laity as well, placing limits on what the lord of a layman who died intestate could claim, and confining his involvement in the distribution of the dead man’s goods to a supervisory role.28 The treatise De Legibus known as Bracton, written at around the same time, placed even stricter limits on the lord’s interest, allowing him only his heriot, and stating emphatically that `administration will belong to the church and to his friends ...’.29 Bracton, like Magna Carta, concerned itself only with free men, but during the thirteenth century it was increasingly accepted that serfs could make valid testaments, a development which seems to have aroused tension between the church and secular lords – a major ecclesiastical council in 1258 warned the latter that they risked excommunication not only if they hindered the payment of intestates’ debts and the distribution of their goods in pious works, but also if they tried to prevent the implementation of testaments drawn up by serfs, `contrary to the custom of the English church as hitherto approved.’30 Clause 27 may have been subsequently dropped from Magna Carta because by 1215 intestacy had already largely ceased to be the concern of the crown. Instead it had become essentially the business of the clergy, to be dealt with by ecclesiastical officials and litigated over in ecclesiastical courts.
W. Stubbs (ed.), Select charters and other illustration of English constitutional history ... (9th edn., rev. H.W.C. Davis, Oxford, 1913), 118; J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427.
D. Whitelock (ed.), English Historical Documents i: c. 500-1042 (1955), 428.
A. Williams and G.H. Martin (eds.), Domesday Book (2002), 493.
M. Sheehan, The will in medieval England, Pontifical Institute of Historical Studies 6 (Toronto, 1963), 68, 232.
ib., 238 and note 24.
G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 80.
Glanvill, 89; E. Amt and S.D. Church (ed. and trans.), Dialogus de Scaccario (Oxford, 2007), 146-9; for the date of the relevant passage in the Dialogus see H.C. Richardson, `Richard fitz Neal and the Dialogus de Scaccario’, English Historical Review 43 (1928), 161-71, 321-40, at 333-6.
J.W. Baldwin, Masters, princes and merchants: the social views of Peter the Chanter and his circle, 2 vols. (Princeton, 1970), i, 271.
PR 16 Henry II (1170), 46.
PR 18 Henry II (1172), 98, 133.
PR 24 Henry II (1178), 10.
W. Stubbs (ed.), Chronica Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71), iii, 264, iv, 62.
Jocelin of Brakelond, The chronicle of Bury St Edmunds, trans. D.E. Greenway and J. Sayers (Oxford, 1989), 81-2.
A. Ballard (ed.), British borough charters, 1042-1216 (Cambridge, 1913), 76.
W. Stubbs (ed.), Radulfi de Diceto ... opera historica, 2 vols. (Rolls Series, 1876), ii, 12.
W. Stubbs (ed.), Gesta regis Henrici secundi Benedicti abbatis, 2 vols. (Rolls Series, 1867), i, 282-3.
PR 32 Henry II (1186), 111.
F. Barlow, The English church, 1066-1154 (1979), 115-18; A.L. Poole, From Domesday Book to Magna Carta, 1087-1216 (2nd edn., Oxford, 1955), 182.
Episcopal testaments are discussed in the commentary on Clause 26.
Diceto ii, 68.
W. Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols. (Rolls Series, 1879-80), i, 457.
T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 184-5.
H.L.D. Ward, `The vision of Thurkill probably by Ralph of Coggeshall, printed from a MS in the British Museum’, Journal of the British Archaeological Association 31 (1875), 420-59, at 452-3; R.V. Turner, The English judiciary in the age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985), 116.
PR 9 John (1207), 113.
T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833), 283.
F.M. Powicke and C.R. Cheney (eds.), Councils and synods with other documents relating to the English church ii: 1205-1313, 2 vols. (Oxford, 1964), i, 55, 181.
S.E. Thorne (ed. and trans.), Bracton de Legibus et Consuetudinibus Angliae ii (Cambridge, Massachusetts, 1968), 179 (fol. 60b).
Councils and synods ii:i, 585.
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.