35
No county court is to be held save from month to month, and where the greater term used to be held, so will it be in future, nor will any sheriff or his bailiff make his tourn through the hundred save for twice a year and only in the place that is due and customary, namely once after Easter and again after Michaelmas, and the view of frankpledge is to be taken at the Michaelmas term without exception, in such a way that every man is to have his liberties which he had or used to have in the time of King H[enry II] my grandfather or which he has acquired since. The view of frankpledge is to be taken so that our peace be held and so that the tithing is to be held entire as it used to be, and so that the sheriff does not seek exceptions but remains content with that which the sheriff used to have in taking the view in the time of King H[enry] our grandfather.
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The strange thing here is that Clause 35 not only looks like it is trying to prevent justice from being served because it inhibits the holding of county courts, but it does so by operation. Why you would want to prevent justice from being served is a matter of who the barons and earls who made this list of demands, want it prevented from being done to.
If it wasn't already obvious, the earldom and barony of England, saw the imposition of what they saw was a Norman/French court ruling from the other side of the English Channel, as being arbitrary and burdensome. The earls and barons, do not want courts from making decisions that they disagree with; by limiting the power of the courts to rule from the outside, they hope to maintain their power in England.
Also note here that the system of frankpledge and tithing, has nothing at all to do with the church or the clergy. Frankpledge was a system of mutual surety whereby small collections of ten to fifteen men (always men, remember women have no legal standing - see previous) were in theory, responsible for the policing of the rest of the group as a small collective. That's all good and fine in theory but in practice where you have one or two people who have the personality to self-appoint themselves as leader/bully, then they end up ruling the group by default.
Obviously the earls and barons of England would not like to be bound and tied by frankpledge to a Norman/French aristocracy; and so Clause 35 is the demand that things return to "held entire as it used to be" where the local sheriff was the one in charge of policing the hundred. Naturally this reveals an existing motive, that the sheriff who polices the hundred is appointed by the Earl, Baron or Knight; so as far as being a peasant, or villein, or free man, or slave is concerned, the dressing of who is above you near enough makes no difference at all.
36
Nor is it permitted to anyone to give his land to a religious house in such a way that he receives it back from such a house to hold, nor is it permitted to any religious house to accept the land of anyone in such way that the land is restored to the person from whom it was received to hold. If anyone henceforth gives his land in such a way to any religious house and is convicted of the same, the gift is to be entirely quashed and such land is to revert to the lord of that fee.
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The church in England in 1215 is still catholic in the small-c sense in that it still part of the one universal church, and still Catholic in the large-c sense in that it still in communion with the church at Rome. This means that functionally it is part of the greater church at large but factionally it is a Franco-Ibero-Italian church.
Internally in England there are three factional groups going on. The Monarchy and loyalists are aligned with the Franco/Norman part of what is now Northern France. The church is in tension with them but still nominally part of the same kind of cohort. The Barons and Dukes who penned Magna Carta and who made this list of demands, are nativist English who resent rule from outside; which includes both the church and the monarchy.
This clause is in a weird tension point in that it forbids land holders from lending lands to the church with the intent of getting that land back, and at the same time it forbids the church from lending lands to individuals with the intent of getting that land back. In both instances, if the Barons and Earls find out about it, they state here that the land will revert to the lord of that fee.
37
Scutage furthermore is to be taken as it used to be in the time of King H[enry] our grandfather, and all liberties and free customs shall be preserved to archbishops, bishops, abbots, priors, Templars, Hospitallers, earls, barons and all others, both ecclesiastical and secular persons, just as they formerly had.
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The word "Scutage" is related to the modern Italian word "Scudetto" which is a small shield. The winners of Serie A earn the right to wear the Scudetto on their kit for the next season. It should not surprise you then, that Scutage is essential "Shield Money" in payment for the defence of the lands,
Scutage is the practice of a knight paying their lord (either a baron or a duke) monies in exchange for getting out of having to do military service. They might also by way of scutage, send peasants or free men in their place, to serve in the military force in their stead.
Now I suppose that it could be argued that in the days of a professional standing army like we have today, that we all in fact already pay scutage but given that this was a specific call upon the knights, I do not think that this maps exactly one to one.
The Undersigned:
All these aforesaid customs and liberties which we have granted to be held in our realm in so far as pertains to us are to be observed by all of our realm, both clergy and laity, in so far as pertains to them in respect to their own men. For this gift and grant of these liberties and of others contained in our charter over the liberties of the forest, the archbishops, bishops, abbots, priors, earls, barons, knights, fee holders and all of our realm have given us a fifteenth part of all their movable goods. Moreover we grant to them for us and our heirs that neither we nor our heirs will seek anything by which the liberties contained in this charter might be infringed or damaged, and should anything be obtained from anyone against this it is to count for nothing and to be held as nothing. With these witnesses: the lord S[tephen] archbishop of Canterbury, E[ustace] bishop of London, S. [recte Jocelin] bishop of Bath, P[eter] bishop of Winchester, H[ugh] bishop of Lincoln, R[ichard] bishop of Salisbury, W. [recte Benedict] bishop of Rochester, W[illiam] bishop of Worcester, J[ohn] bishop of Ely, H[ugh] bishop of Hereford, R[anulf] bishop of Chichester, W[illiam] bishop of Exeter, the abbot of [Bury] St Edmunds, the abbot of St Albans, the abbot of Battle, the abbot of St Augustine’s Canterbury, the abbot of Evesham, the abbot of Westminster, the abbot of Peterborough, the abbot of Reading, the abbot of Abingdon, the abbot of Malmesbury, the abbot of Winchcombe, the abbot of Hyde [Winchester], the abbot of Chertsey, the abbot of Sherborne, the abbot of Cerne, the abbot of Abbotsbury, the abbot of Milton [Abbas], the abbot of Selby, the abbot of Cirencester, H[ubert] de Burgh our justiciar, H. [recte Ranulf] earl of Chester and Lincoln, W[illiam] earl of Salisbury, W[illiam] earl Warenne, G[ilbert] de Clare earl of Gloucester and Hertford, W[illiam] de Ferrers earl of Derby, W[illiam] de Mandeville earl of Essex, H[ugh] Bigod earl of Norfolk, W[illiam] earl Aumale, H[umphrey] earl of Hereford, J[ohn] constable of Chester, R[obert] de Ros, R[obert] fitz Walter, R[obert] de Vieuxpont, W[illiam] Brewer, R[ichard] de Montfiquet, P[eter] fitz Herbert, W[illiam] de Aubigné, F. [recte Robert] Gresley, F. [recte Reginald] de Braose, J[ohn] of Monmouth, J[ohn] fitz Alan, H[ugh] de Mortemer, W[illiam] de Beauchamp, W[illiam] de St John, P[eter] de Maulay, Brian de Lisle, Th[omas] of Moulton, R[ichard] de Argentan, G[eoffrey] de Neville, W[illiam] Mauduit, J[ohn] de Baalon and others. Given at Westminster on the eleventh day of February in the ninth year of our reign.
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I live in Australia; so this means that an audience of the people who want to claim Magna Carta in my country, are probably unaware of the implication of the list of people here. There is literally no-one from "The North". About the furthest north that anyone gets here, is the Earl of Derby.
The other thing that is immediately obvious here, is that the list of people making the demands includes Abbots, Bishops, a constable, and a few Earls. Literally none of these people are elected to their office, and most of these people would have been sent by the Earl or Baron of their county/hundred, either in lieu of them going themselves, or possibly because they feared getting killed by the royal forces in case all of this went badly. Had John's army killed the clergy, then this would have been the pretense for kicking off another civil war in England; which over the next few hundred years, would happen all too frequently.
The Confirmation:
We, holding these aforesaid gifts and grants to be right and welcome, concede and confirm them for ourselves and our heirs and by the terms of the present [letters] renew them, wishing and granting for ourselves and our heirs that the aforesaid charter is to be firmly and inviably observed in all and each of its articles in perpetuity, including any articles contained in the same charter which by chance have not to date been observed. In testimony of which we have had made these our letters patent. Witnessed by Edward our son, at Westminster on the twelfth day of October in the twenty-fifth year of our reign. [Chancery warranty by Hugh of] Yarmouth.
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12th October 1297 is not the 15th of June 1215. This version, adopted by Edward I and inspected by his son (who would become Edward II) is the Inspeximus Issue. Already we can see that if Edward I and Edward II have not only agreed to but adopted both Magna Carta and another charter called the Charter Of The Forest into the corpus of English law, that the monarchy of England has very much diverged from the Franco/Norman roots established by William in 1066.
The final running tally of Clauses in Magna Carta which might apply to someone in court in Australia today is:
1/37.
As Magna Carta relates to Australian law at all, most of it is either irrelevant, or repealed, or impossible to apply. In fact the only sentence which has any possible application at all in Australia is that one sentence from Clause 29:
To no-one will we sell or deny or delay right or justice.
The ironic thing is that the cookers who appear in court and try to rely on Magna Carta as some kind of woo-woo magic weapon, very much do not want to submit to the court which they appear in front of, don't even want this clause to apply to them either. If you have fallen foul of the law, and do not want to submit to the law, then you certainly do not want to admit that the proper consequences of the law should apply to you.
On that note, I am willing to scrub that tally of 1 and arrive at the final total which the cookers who appear in court and try to rely on Magna Carta actually reply upon...
Nothing.
Nothing at all.
And that's possibly the saddest thing of all.
