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amends to the ecclesiastics for personal tythes, or other duties, which the de ceased had forgotten or omitted to pay. The mortuary consisted of the second best chattel remaining, after the lord had taken out his heriot.
Such were the chief points required in the ancient English testaments; and if a person died without making any disposition of that part of his property which he might bequeath, the king, as the general trustee of the kingdom, and father of the country, was empowered to seize upon it. In process of time this branch of the prerogative was given to the church, which was done because spiritual men were supposed to have a better knowledge of what would conduce to the benefit of the soul of the deceased.
As these ecclesiastics, however, were not accountable to any one for the faithful discharge of their trust, they too frequently abused it; and it appears that, so late as about 1250, the clergy took the whole residue of the deceased's estate after the widow's and children's two thirds had been deducted, without even paying his lawful debts; for which reason, in 1284, it was enacted that the ordinary should be bound to pay the debts of the intestate so far as the goods would extend.
The intention of the inventory mentioned in this chapter, was not less to prevent the executor from concealing any part of the property of the deceased, than to secure the payment of the king's debts.
The following chapter (XXVII.) relates to such persons only as die intestate: who, according to Matthew Paris, were anciently considered as eternally condemned, because by the canon they were obliged to leave a tenth of their property to pious uses for the redemption of their souls; which he who did not, regarded not his own salvation. There was also no distinction made between one who died without a will, and a suicide ; for the goods of the former were forfeited to the chief-lord, and of the latter to the king. As, however, sudden deaths might frequently cause intestates, the bishops, in the course of time, received power to make such a distribution from the goods of the deceased as he himself was bound to do, under the term of Eleemosyna rationabilia.
Cus. XXVIII., XXIX., XXX., XXXi.—The four chapters which are next to be considered have one principal aim, the regulation of purveyance, and the duties to be taken for the maintenance of castles. They were intended to remedy the heavy oppressions inflicted by the governors of castles upon the surrounding tenants, and even on the military, as well in peace as in war. Some notice of the evil practice of these castellans has already been given ; but previously to entering upon a particular illustration of the text in this place, it will be proper to give some notice of the nature of purveyance in general. The term itself is derived of the French pourvoir—to provide—and its legal acceptation was a providing for the king's household by his officers, who exercised his prerogative of buying provisions, &c., at a certain rate, to the preference of all others, and even without the owner's consent. It embraced also the power of impressing the horses and carriages of the subject to execute the king's business on the public roads, in the conveyance of timber, baggage, &c., however inconvenient to the proprietor, upon paying him a settled price.
Lord Coke, in commenting on the first of these chapters, says, that the constable of a castle had no right to make purveyance at all; though the fortress were to be kept for the defence of the realm, as it might be taken for the houses of the king and queen only. "Constables,” says the author of the Mirror, " should defend the rights of all persons around them ; for there is no difference between taking ill care of them, and robbery—the which is this seizing of their horses, provisions, merchandise, carriages, lodging, or any kind of their goods."
Castle-guard was an essential part of knight's service, but it did not extend to the fortress of any other than the peculiar lord, nor even to that if it were alienated ; and the part to be watched, as a door, tower, bridge, or sconce, was to be specified in the tenure. The duty of watching, however, might be discharged either by the tenant or his deputy; but though there was not any certain term ordained by law for the performance or duration of it, the tenant was to receive, says Littleton, Lib. II., ch. iv., sect. 3, a reasonable notice, when his lord hears that the enemies will come, or come into England; and Lord Coke adds, that he was not bound to attend until such notice was given. If any damage happened to the fortress from careless keeping, the lord was entitled to distrain for it, and recover satisfaction from his tenant.
The wood is protected on the ground, that being part of the subject's inheritance, it could therefore no more be taken than the inheritance itself.
CH. XXXII.-The prerogative mentioned in this division of Magna Charta, that the sovereign should hold the lands of a felon for a year and a day, exists also in the French and Danish laws. The ancient custom was that in detestation of the crime committed, the felon's property, if it were held of a subject, was to be destroyed—as the houses to be thrown down, the gardens extirpated, the woods eradicated, and the meadow-land ploughed up—this was termed waste, and of right belonged to the king as part of the felon's forfeiture; but for
the common benefit the lords of estates were afterward contented to resign such í lands to be retained by the king for a year and a day, in consequence of which,
waste was omitted in this chapter of Magna Charta, and no waste was to be made after they returned to the lord of the fee. The word felony in this chapter signifies that kind which is punished by death, though nearly all felonies carry with them forfeiture of estates, and thus Sir William Blackstone supposed the word to have been derived of the Teutonic terms fel, an estate, and lon, the price or value that is to say, the consideration for which the land has been resigned.
CH. XXXIII.--The intent of this brief fragment of the old common law was to prevent any persons from appropriating to themselves a fishery of any part of the river Thames which was common property.
Wears are large dams made across rivers for the taking of fish, or the conveyance of water to a mill; and the peculiar kind mentioned in the text, called Kydells, were dams having a loop or narrow cut in them, and furnished with wheels and engines for catching of fish. They are now called kettles, or kettle nets, and are still in use on the sea coasts of Kent and Cornwall.
CH. XXXIV.—The writ mentioned in the text is of that class properly termed writs of right, its ancient name of Præcipe in Capite, being derived from the first words of the instrument.
The chief intent of the present chapter appears to be to prevent any false transfer of property under color of this writ, from one lord to another, by which the former lost both his fee and his tenant's services. The writ of right should be first brought into the court baron of the lord of whom the lands are held, but if he do not hold any, or have waived his right, then it might be brought into the king's. As in this instance also it was sometimes falsely pretended that a lord had waived his right, the present chapter of Magna Charta restrains any improper use of the writ Præcipe, by which a lord might be dispossessed of his right of court of jurisdiction over his tenants.
CH. XXXV.-Two peculiar kinds of cloth are mentioned in this division of Magna Charta : halberjects, or haubergets, and russets. The first was a kind of very coarse and thick mixed English cloth, of various colors, sometimes used for the habits of monks; and its name was probably derived from the German words al, all, or haltz, or hals, the neck, and bergen, to cover. Russets were also a monastic dress, made of an inferior cloth, sometimes spun by rustics, and dyed by them of a dull reddish hue, with bark. John de Neville, in the year 1386, ordered by his will that his coffin should be attended by twenty-three paupers in russet cloaks, bearing torches, and carried by as many more in cloth of russet wool, bearing a red cross. The name of this material is doubtless derived of the Latin russus, a kind of red.
Ch. XXXVI.—The intent of this short but important chapter, was to prevent the long imprisonment of a person charged with a crime, without examining his guilt or innocence. “For the intent of imprisoning such,” says Lord Coke, " is only for their security, that they may be duly tried." There is a striking similarity between this division of the great charter, and the act of habeas corpus, of which it may, in some measure, be considered as the ancient prototype ; for the purpose of each was to bring an accused person to trial without an extended confinement. The writ of inquisition or inquiry mentioned in the text, was denominated Odio et Acid of hatred and malice, and was anciently called Breve de bone et Malomthe writ concerning good and evil, from those words appearing in it; and it was assigned by the common law to any imprisoned person, to prevent his remaining in prison until the arrival of the justices in Eyre, when he should be tried. “The former was available," says Lord Coke, “for the most odious cause, even for the death of a man, which, without the king's writ, could not be bailed; but in that instance a writ of inquisition was issued to the sheriff of the county, that he should assume the holding of a court of pleas of the crown, and, in full county, by the oath of true and lawful men, inquire whether the accused person were guilty of hatred and malice; unless he had been previously indicted or called before the justices in Eyre, because then bis accusation became matter
of record, against which this writ could not stand, being grounded on a surmise. The latter writ mentioned above, was issued when any person was committed to prison for the death of a man, and was addressed to the justices of jail delivery. It set forth that "if N, taken and detained in prison for the death of M, be willing to place himself upon his country for good and evil, and for this occasion, and for no other, is detained in the same, and not by any special mandate of ours, then let N be delivered from the prison aforesaid, according to the laws and customs of England.” Without this writ the justices of jail-delivery would not, anciently, proceed to trial. This statute was altered and amended by three others, passed in the reign of Edward I.; and in 1354, the 28th of Edward III., chapter ix., the writ de Odio et Acid was taken away, because the sheriffs of counties made inquests for the indicting of the people, and then took fines and ransoms for their delivery, without ever bringing them before the king's justices. Lord Coke, however, observes that it was enacted in 1237 that all statutes contrary to Magna Charta should be void, on which account the writs still remained. “And therefore,” adds he, “the king's justices in general have not suffered the prisoner to remain long in prison, but have speedily brought him to trial at their next coming." This practice is also commanded and described in the statute of Gloucester, 6th Edward I.
CH. XXXVII.-There are five different species of tenures mentioned in this division of the great charter, one of which-military tenure-has already been sufficiently described. Concerning the remaining four, it will be proper to give some explanation, previously to considering the intent of the statute itself.
Fee farm is when the lord of an estate, on creation of a tenancy, reserves to himself either the rent for which it was before let, or was reasonably worth, or at least a fourth part of the value, without any extraordinary services.
The term socage is derived by some from the old French word soc, a ploughshare, and signifies a portion of lands held by tenure of certain inferior offices in husbandry, or any convertional services that were not military. It was anciently the most popular English tenure, and was of so wide an extent, that Littleton states that all the tenures which were not held by knights' service, were held by socage.
Tenure by burgage bears a very close resemblance to socage, and it is defined to be where the king or any other person is lord of an ancient borough, in which tenements are held by a rent certain; whence it has been called a species of town socage, as common socage is generally rural.
Petit or petty serjeantry consisted, according to Littleton, in holding lands of the king by the service of giving him some small weapon of war, as a bow, a sword, a lance, an arrow, &c., as it is stated in the text of Magna Charta ; and hence, as it was the payment of a certain rent, it has also been considered as a species of socage.
The intent of the present chapter of the great charter, was to prevent the king from claiming, by virtue of the tenure of petty serjeantry, which could be held of him only, the profit attached to the wardship of the heir, and his lands. The famous statute of the 12th of Charles II., rendered this portion of the great charter obsolete, by taking away wardship and most of the feudal tenures; although the honorary services belonging to grand serjeantry were not wholly abolished by it.—Coke-Blackstone-Statutes at Large.
CH. XXXVIII.-The expression used in the 38th chapter, to be put to his law, is equivalent to putting a person upon his oath, which is the medium furnished him by the law, of proving himself innocent of any charge. The trials which were anciently used by the Saxons were by wager of law, by ordeal, and by jury; of which the first and third properly belong to the present chapters, the trial by ordeal being referable to the 54th division of the great charter.
The wager of law received its name from the similarity it bore to that proof which is called the wager of battle ; for as in the latter instance the defendant gave a pledge or gage to try the cause by combat, so in the former he put in sureties, or vadios, that at a certain day he would take the benefit which the law had provided him.
The expression wager is derived either from the old French gager, to pledge, or from the German waegen, to attempt anything dangerous. Before, however, the wager of law could be demanded of the defendant, the accuser was obliged, beyond his own declaration, to produce his secta, suit, followers, or witnesses, whose testimony was to be consistent, and by whom a probable case was to be made out.
When the charge was complete, and the defendant had given security to make his law, he came into court with eleven of his neighbors, and, standing at the end of the bar, was asked by the secondary whether he would wage his law, and admonished by the judges of the danger of a false oath. If he persisted, an oath similar to the following form was administered to him: “Hear this, ye justices ! That I do not owe to the sum of
,, nor any penny thereof, in manner and form as the said hath declared against me, so help me God!” The defendant's eleven neighbors or compurgators then avowed, upon their oaths, that they believed in their consciences that he had spoken the truth; thus, whilst he was sworn to faithfulness, they were sworn to declare as faithful a belief. Previously to these oaths being administered, the plaintiff was thrice called into court; if he did not appear, he was nonsuited, though he might bring a new action; but if he appeared, and the defendant, &c., made the oaths, his claim was barred forever, the wager of law being equal to a verdict against him. This species of trial was never permitted but in cases where the defendant bore a fair and irreproachable character; and it is supposed to have had its original in the Mosaical law mentioned in Exodus xxii. v. 10, 11. It is also to be traced in the legal codes of most of the northern nations; and its intent was, that an innocent man of good credit might find a remedy when he was over. borne by a multitude of false witnesses.
CA. XXXIX.-Sir Edward Coke, in commenting upon this chapter, shows that the evils from which the law of the land are to protect any person, are