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recited in the order in which they most affect him; as, firstly, loss of liberty"no free man shall be taken or imprisoned ;” because the freedom of a man's person is more precious to him than all the succeeding particulars ; and the word "taken,” which occurs in this clause, signifies being restrained of liberty by petition or suggestion to the king or his council.
Secondly, the chapter declares, that none “shall be disseized of his free tenement, his liberties, or bis free customs,” meaning that neither the king nor others shall seize upon any of his possessions, and that a man shall not be put from his livelihood without answer. Against this law, it seems, even a royal patent could not stand. The word liberties has several significations; as the laws of the realm, privileges bestowed by the king, and the natural freedom possessed by the subjects of England, for which cause monopolies in general are against the enactments of the great charter.
The present chapter ordains, thirdly, that none shall be outlawed, exiled, or in any way destroyed. By outlawry is signified the ejecting of a person by three public proclamations from the benefit of the law, which, from the time of Alfred until long after the reign of William I., could be done for felony only, for which the penalty was death ; and therefore an outlaw, being considered as a wolf, might be slain by any man.
The expression being exiled is equivalent with transportation, and it signifies to be banished or forced to abjure the realm against one's consent.
The chapter next declares that none shall be, “ in any manner, destroyed contrary to the law of the land ; " which Sir Edward Coke interprets to signify being “forejudged of life or limb, disinherited, or put to torture or death." He also observes that the words “in any manner” are added to the expression “ destroyed,” and to no other in the sentence, because they prohibit any means being used by which this destruction may be brought about ; thus, if any indi. vidual be accused or indicted of felony, his goods or lands can neither be seized into the king's hands, nor granted, nor even promised to another, before his attainder.
In the original Latin of this charter, the above engagement is followed by the words " nec super cum ibimus, nec super eum mittemus ; " of which the literal translation is, “nor will we pass upon him, nor commit him," &c. ; but, as the margin of the statutes at large observes, these words do by no means express the sense of the original ; and Sir Edward Coke states that they signify that none shall be condemned at the king's suit, either before the king in his bench, where the pleas are supposed to be held in his presence, or before any judge or commission whatever.
The word peer was probably originally derived of the Latin par, an equal, but was afterward used to signify the vassals or tenants of the same lord, who were equals in rank, and were obliged to attend him in his courts. They were also called peers of fees, either because they held their fees or estates under him, or because they sat in his courts to judge with him of disputes arising upon fees; and if there were too many in one lordship, the lord selected twelve of his tenants, who received the title of peers by way of distinction, whence it is said that juries have been derived.
To be judged according to "the law of the land," is the last privilege secured by the present chapter ; which expression Sir Edward Coke interprets to signify the law of England, in its most extensive sense, binding both the sovereign and the subject; for which cause it is not written in the name of either. It likewise signifies that none of the foregoing penalties were to be imposed, but after due process of the common law.
CH. XL.—The intent of this chapter, which in the third great charter of King Henry III., vide page 140, was added to the preceding, was to abolish those fines which were anciently paid to delay or expedite law proceedings and to procure favor. Madox, who in his history of the exchequer, chap. xii., gives numerous instances of these fines, states that the counties of Norfolk used to pay an annual composition at the exchequer, that it might “ be fairly dealt with.”
By the expression, “to noce will we sell," were abolished those excessively high fines paid for procuring of right or judgment. The words, “ to none will we deny," referred to the stopping of suits or proceedings, and the denial of writs; and the engagement, to none will we delay right or justice," provided against those delays which were caused by the counter-fines of defendants, who would sometimes outbid the plaintiff, or by the will of the prince.
The concluding words of this chapter are all which require to be noticed, namely, “right and justice.” The former, according to Lord Coke, signifies the law, because it guides as a right line, discovers that which is wrong, is the best birthright of the subject, and is supposed to allude to the Writ of Right, which must be given without fine. The passage then ordains that neither right, nor law, which forms the means of procuring justice, nor justice itself, which is the end of the law, shall be bought, sold, or denied. Such are the contents of these important chapters, which admit of the most extensive commentary and analysis ; for it is aptly though quaintly observed by Lord Coke, in concluding his minute illustrations of these passages : “ As the gold-finer will not, out of the dust of shreds of gold, let pass the least crum, in respect of the excellency of the metall, so ought not the learned reader to passe any syllable of the law, in respect of the excellency of the matter."
Chs. XLI., XLII. The protection from “ evil tolls" is a security from paying so large a custom or imposition upon any goods, that the fair profit is lost therein, and the trade thereby prevented.
Lord Coke, in his Commentary on Pleas of the Crown contained in his Third Institute, chapter 84, shows that there were certain orders of men under a continual prohibition of quitting the realm without the king's previous license; though by the common law, every one had liberty to go where he would, provided he was under no injunction to remain at home. Some of the persons who were not to depart without the king's license were peers, because they were the councillors of the crown; knights, because they were to defend the kingdom from invasion; all ecclesiastics, because they were confined by a special law, on account of their attachment to the See of Rome; and all archers and artificers, lest they should instruct foreigners how to rival the manufactures of Eng. land.
By the writ called "ne exeat regno," the sovereign has still the power of confining his subjects within the kingdom, under severe penalties, because every man ought of right to defend the king and his realm; and to this reason Magna Charta has a reference, when it states that in time of war persons may be restrained from going abroad "for some short space for the good of the king. dom,"
CA. XLIII. The signification of the title Honor, is a more noble sort of lordship, on which other inferior estates depend, by the performance of certain services to the superior chief, who is called the Lord Paramount; and his seigniory is frequently termed an honor, not a manor, especially if it ever have belonged to the king or to an ancient feudal baron. To constitute an honor, however, it was essential that it should have been originally created by the king, and that it should be holden of the king; for, though the king might grant it to a subject, yet if it were assigned to another, it could not be holden of a subject.
The word escheat, which also occurs in this chapter, is derived of the old French word, escheoir, to return or happen : and it signifies the return of an estate to a lord, either on failure of issue from the tenant, or upon account of such tenant's felony. The nature of reliefs paid to the chief lord at the entry of a new heir, has already been particularly described; and it was usual for honors to be let out to the sheriffs to farm, in the manner already stated.
Chs. XLIV., XLVII., XLVIII., LIII.-“When a conqueror,” says Mr. Lewis, “settled the economy of a country which he had previously vanquished, it behoved him, in order to secure his new acquisition, to keep the natives of the country (who were not his military tenants) in as humble a condition as possible; and more especially to restrain them from the use of arms; and as nothing could do this so effectually as the prohibition of hunting and shooting, it became a matter of policy to reserve this right to himself, or to those of his capital feudatories (the greater barons), on whom he thought proper to bestow it.” On this account these laws were both instituted and executed with much cruelty; but in Canute's charter, granted at Winchester, in the year 1016, many of the offences committed, both on the vert and venison, were to be redeemed by fines; and this restriction extended only to the royal forests. The succeeding century produced a terrible alteration in these statutes; beasts of venery were then considered to belong solely to the king, and the right of taking them to be vested only in him; and while the Norman government carried these regulations to their greatest extent, a wide range of country was appropriated for the chase by the command of William the First, which was then denominated the New Forest. Within these limits, and under the color of forest law, the most horrid tyrannies and oppressions were exercised; the penalties attached to the destroying a beast within the bounds of a forest, were made almost as severe as taking away the life of a human being. These principles, if we credit the assertion of Matthew Paris, seem to have influenced the mind of John more than that of any other monarch, for his interdict touching the chase, extended to the winged as well as to the four-footed creation. It is not surprising that from such laws as these the people of England should contend as earnestly for liberation, as from the other oppressions of the feudal system; and John would have been as reluctant to confirm the charter of forests, as he was to ratify the charter of liberties; but the former instrument was granted in the ninth year of his successor, King Henry the Third.
CH. XLV.—Dr. Brady supposes that the office of chief justiciary was originally derived from Normandy, where he believes him to have been the same as the grai seneschal; in Engla he had extensive power over all the inferior officers of the law, took cognizance of all crimes, and was often general, viceroy, and guardian of the kingdom. The annals of Waverley (which are contemporary with Magna Charta), besides the oppression and incontinence of the king himself, ascribe the anger of the barons to the ill use which Peter, Bishop of Winchester, who in 1213 was constituted chief justiciary, made of his newly acquired power, during the absence of King John in France.
And this appears the more probable, because the nobility were from the first extremely disgusted at his promotion, taking it very ill that a foreigner should be preferred above them all ; and because in the great charter we find the power of the chief jus. ticiary considerably curbed in many instances, and a strong innuendo given, that the officers of justice had been deficient in the knowledge, or at least in the observance, of the laws of the land.—THOMPSON'S Magna Charta.
Ch. XLIX.—These hostages were first taken about the year 1208, during the time of the interdict, when King John, fearing that the Pope might absolve all his subjects from their allegiance, demanded pledges of all the barons, &c., whom he suspected, to be delivered to him as securities for their future fidelity. “Many of them," says Dr. Brady, "gave their sons, their nephews, or their nearest relations to the messengers whom he sent for them. In July, 1211, when he marched into Wales and subdued it, he received twenty-eight hostages from the nobles of that nation, who were executed on account of a revolt in the year following
Ch. LI.-The 61st chapter of John's charter provides for the dismission of certain alien soldiers, distinguished by the names of foreign knights, crossbowmen, and stipendiaries, who had been probably hired by the king to assist him against his barons. Even under the feudal system, paid or stipendiary troops, both national and foreign, were engaged by the monarchs, with the sums given by such as commuted for their services; and their duties were castle guards, foreign garrisons, or the protecting of the marches, or borders of the kingdom, adjoining Wales and Scotland. Their pay was sometimes out of the privy purse, or else they were suffered to live at free quarters; and being actually a party of wandering brigands from all nations, ready to embrace any side for hire, they gave rise to that cause of complaint alleged against them in the text, that they came with horses and arms to the molestation of the kingdom.
As the crossbow, or hand arbalist, is said to have been introduced into France by the first crusaders, and to have been used early in the reign of Louis le Gros, which began in 1108, it may probably account for the balistarii, or crossbowmen, being foreigners.
Ch. LII.—This chapter provides for the restoration of any possessions which had been unjustly seized on during his dispute with the barons; though at the same time it has a retrospective effect, by referring to such as were seized in the reigns of Henry II. and Richard I., then remaining in the king's hands. This demand, however, appears to have been already, in some degree, complied with; for, about February or March, 1214, John assumed the cross as a protection, and the present clause refers to some estates concerning which pleas had before been moved, and inquisitions previously taken. The text observes that all others were to be respited for the usual term of the crusaders, by which was signified the space of three years, allowed to all who took the cross, during which time their debts bore no interest, even from the day on which they joined the crusade ; nor could a crossed debtor be cited before any court, until his return from beyond the seas. On account of these privileges, and from their suspicions that King John had assumed the cross only to secure himself and his possessions, the barons probably inserted that peculiar clause in the text, providing that if he did not go upon the crusade, he would immediately grant them their petitions.
CH. LIV.-The particular species of action indicated in this chapter, is called an appeal to death, which is of two kinds, murder properly so named, and manslaughter; these being the only crimes for which an appeal can be brought for a relation, all others referring to the parties themselves. The appeal of death, however, cannot be brought for every relation, but only by a widow for the death of her husband, and by the heir male for that of his mother or ancestor, which heirship was extended, by an ordinance of King Henry I., to the four nearest degrees of blood. The writ of appeal is a natural consequence annexed to the widowhood of a woman, and is allowed her on account of the loss of her husband; if, therefore, she marry before or during her appeal, it is entirely lost; and if after judgment, she cannot demand execution.
The principal value of appeals of murder can hardly be estimated at the present day; though anciently there were reasons for thus prosecuting offences rather than by indictment. Blackstone and Barrington suppose that they had their origin in those times when a pecuniary satisfaction was paid for the expiation of great crimes; and princes were accustomed to pardon even murder, considering it as homicide, for a certain sum, entitled a weregild, to be paid to the nearest relation.
An acquittal, in the case of an appeal, protected the party from being afterward indicted for the same offence; and it was provided by the statute of Westminster, ch. xii., that in such a case the appellor or prosecutor should suffer a