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NOTES ON THE GREAT CHARTER.
Introduction. The four causes for granting Magna Charta are the prominent parts of the opening: the honor of God, the benefit of the king's soul as a pious action—the exaltation of the church, and the amendment of the kingdom. The last expression to be observed is, that the words spontaneously and of our own free will, were added in the subsequent charter of Henry III. because King John endeavored to avoid the execution of his grant, asserting that it had been extorted from him by force.
Ch. I.--The expression to grant unto God, with which this section commences, was an ancient legal phrase, employed when anything was bestowed for the use and maintainance of the church; since the thing so given was supposed to be granted to God, as it was for his service. King John was the first sovereign who used the plural pronoun We in his grants, as all the preceding monarchs wrote in the first person singular.
CH. II.-This section of the Great Charter refers to an ancient law connected with feudal tenures, by which it was supposed that the lord of the estate was the real proprietor of all: though the tenant, while he was able to do service for the land, held it in possession and enjoyed its products. The grants issued by the superior lord lasted for life only; and, upon the decease of a tenant, if his heir were not of an age sufficient to discharge all the services belonging to that fee, or estate, it still remained in the possession of the chief lord until he should be able to do so; for, it must be observed, that these services were, for the most part, doing duty in the field.
The most ancient relief is called a heriot, from the Saxon here-geat, which literally signifies armor and weapons. “A tribute,” says Somner, in his ‘Dictionarium Saxonico-Latino-Anglicum,' “ of old given to the Lord of a manor, for his better preparation towards warre. We now call it a Heriot, and understand by it, the best horse, ox, cow, or such like chattell, which the Tenant hath at the houre of his death, due to the Lord by custome.” It was probably from this circumstance, then, that the original reliefs were ordained to be paid in armor : and by the laws of King William the First, the relief of an Earl was eight horses saddled and bridled, four helmets, four coats of mail, four shields, four spears. four swords, four chasors, or hunting horses, and one palfrey bridled and saddled. A baron was to give half as much with the palfrey. A vavasor, the next degree to a peer, was to present his lord with his best horse, his helmet, coat of mail, shield, spear, and sword, or instead of these one hundred shillings. A countryman's relief was his best beast, and he who farmed his lands gave a year's rent. Thus there was originally a scale of settled sums for the lands of the different degrees, from the highest downward; but previous to John's reign, especially in those of King William Rufus and Henry II. reliefs became arbitrary, and often, under the title of a reasonable relief, considerable oppressions were imposed. The sums mentioned in the text would be about twenty times their value in modern currency; ten times in allowing for the difference of coin, and ten more in the quantity and worth of the article to be procured. The ancient relief, however, to which the present chapter of Magna Charta alludes, was the giving up the fourth part of the value of an earldom, a barony, or a knight's fee for one year.
Ch. III. -The intent of this chapter is to preserve the old statute of the common law regarding military service, by which it is provided that the lord of an estate cannot both have guardianship of the heir and his land, and also a relief when he shall come of age to do knight's or warlike service for it. For this cause, then, if a person held lands of the king in chief, and different lands under some other lord, both by military duty; the king by his prerogative had the wardship of all, and, upon the heir's coming of age, a relief was paid to the other by way of recompense.
CH. IV.-The intent of this and the following chapter of the great charter, was to prevent the sovereign from placing rich estates of heirs under age in the custody of mercenary men, who might exact heavier rents and services than the land had ever before been rated at; or who could destroy or neglect any of the property so committed to them.
Guardians of estates held by military service were, as Lyttleton observes, of iwo kinds : a guardian in right, which was when the superior lord upon the decease of his tenant became, in virtue of his title, the possessor of the heir and his lands; and a guardian in fact, which is where the superior lord, after having made his claim, grants the wardship to another, who comes into possession by the force of that grant. This latter species of guardian is that mentioned in the text.
Issues, or as the original word may be better translated, outgoings, signify the rents and profits issuing from the lands or tenements of the ward, which are to be taken by the guardian in a reasonable manner, according to what is allowed by law.
Customs are privileges due or appendant to the lands of the ward, such as advowsons or presentations to ecclesiastical livings, commons, waifs and strays, tenant fines, &c. Services were those duties accruing to the lord from his copyhold tenants, which were of the nature of feudal services, being annual and accidental, as well as comprising homage and fealty. The reasonableness of these various provisions was to be decided by the king's justices.
With regard to the saving clause in this chapter, concerning the destruction and waste of the men or goods, it will be proper to explain it, as it concerns the legal signification of those terms. Waste is committed in neglecting to repair houses, in damage done to gardens, and in the cutting down of timber trees. Destruction of goods is cutting down of young timber plants, and any other kind of trees set for the defence of the house. Exile, or destruction of men, is when by any oppression they are reduced to poverty, and forced to quit their dwellings upon the estate. It should be observed that the fair profits of the land were claimed by the lord of an heir under age, that out of them be might provide some person to supply his defect of service until he should be able to act for himself. (Wright.)
CH. V.--The laws enforced by this chapter of Magna Charta are similar to the agreement of repair which exists between a landlord and tenant for years, as may be seen by a reference to Sir Edward Coke's Commentary upon Littleton, Book I., chap. vii., sec. 67.
CH. VI.-The tenure of military service was connected with the right of a superior lord to bestow his tenants in marriage; or at least his consent was required before any union could take place with one of his followers, and the reason for this was certainly a fair one; because, according to the principles of feu. dal tenures, it was proper to prevent any person who enjoyed a part of the land from bringing into the joint possession of it either an enemy of the superior lord, or one of a family at enmity with him. If therefore a military tenant married without his lord's consent, his fee was forfeited.
A female heir might be given in marriage by her father at the age of twelve, but fourteen was called her age of discretion, or time when she might consent or disagree to marriage under a feudal lord ; but if her ancestor died before she had reached the age of fourteen or was married, then she was to remain in ward until the age of sixteen, in which two years it was supposed that her lord might tender jo her a suitable marriage. This if he neglected to do, at the end of the two years she could enter on possession of her estate. If, on the contrary, she were married under the age of fourteen, in the life of her progenitor, and was also under that age at his death, then the lord was to have wardship of her until she attained to it, when her husband and she were immediately to enter on possession of her lands. The age of discretion for a male heir was fourteen, at which time he might consent or disagree to any marriage his lord had formerly provi. ded for him; and the old law was such that if he did then disagree to such marriage, although his lands remained in wardship until he should come to the full age of twenty.one, yet he was free from ward as to his body, and his lord had no right to marry him a second time.
One who gave his daughter in marriage without the consent of his lord, forfeited his inheritance.
During the time, however, that these laws existed, the present chapter of Magna Charta was intended as an ancient institute of the common law, and was doubtless inserted as a provision against mercenary or interested guardians involving their wards in any improper connection, by way of securing the estates for themselves. There were many kinds of disparagements; but for any of these four principal ones, the heir, if married before the age of fourteen, when he arrived at that age might disagree to the match, and it should then be dissolved by law : firstly, the marriage might be refused, if the party provided were an idiot or lunatic; secondly, if they were of an inferior degree, one of attainted blood, or illegitimate; thirdly, if they were imperfect in person, or deformed ; and fourthly, if the bride were a widow, because that was considered as bigamy, and precluded benefit of clergy. The latter, however, was provided against in 1641, the first year of Edward VI., cap xii. $ 16, by an act entitled “An Act for the repeal of certain statutes concerning treasons, felonies, &c.,” in which it was declared that benefit of clergy should be allowed to any persons, notwithstanding their marriage with widows.
Chs. VII., VIII.—Before the Norman conquest, a widow had no power to marry again until one year should have expired after the death of her husband.
The word maritagium, as it occurs in the original text, is a technical expression signifying liberty to marry again, whereby the year of mourning was set aside, so far as the law was concerned. The whole of this and the succeeding chapter relates to the general right of widows, as they regarded the feudal system; for as females at that period possessed no personal fortune to entitle them to a jointure, so the immediate provision of dower for their maintenance was of the greatest importance. The widow, however, might remain in her late husband's dwelling (if it were not a castle) for forty days, which time was called her quarantine, and which began on the day of his death, and continued to thirty-nine days after; if during that time she married, her widowhood was then past, and she forfeited her dower.
With respect to the quantity of the dower, when granted, it was generally the third part of the deceased's possessions, and thence called dos legitima, or lawful dower.
CH. IX.-This is the first act of grace contained in the great charter; for by the common law, the king had execution of the body, lands, and goods of the debtor, and he might also, by his prerogative, distrain for his rent in any other lands which his tenant possessed, although they were not of his own fee. A similar process was likewise used by many of the barons, and this was afterward carried to such an extent that they levied their distresses in the common streets and highways.
CH. X.-By the laws of King Edward the Confessor, and the testimony of Glenville and others, it was anciently not lawful for Christians to take any sort of usury, so that interest for money was paid to the Jews alone, and to them only while the ancestor was living, or after his successor came to
CH. XI.--The expression in the text, saving the rights of the lords, is a provision that all their lawful customs and services are not barred by this protection of a tenant's property; and it infers that if they be neglected or denied, the lord of the fee might distrain for wardship, relief, or marriage.
CH. XII.—This chapter is to be found in its fullest extent in the great
charter of King John only; and its subject is the levying of scutage, a tax anciently paid by such as held lands by knight's service, toward furnishing the royal army, at the rate of one, two, or three marks for every knight's fee. It was originally derived of the Saxon words scyld and penig, the shield-penny; whence it was translated into the Norman French escuage, and the law Latin expression of scutagium, or service of the shield : this, says Lord Coke, in respect of the scutum, or shield, which ought to be borne both by lord and tenant in such wars.
The kings of England, therefore, anciently taking advantage of, or probably complying with this custoni of their tenants, and sometimes on occasion of war, assessed without summons a moderate sum upon every knight's fee, as an escuage, wherewith they might provide foreign stipendiaries to supply their defect of service. But as this species of escuage was really a previous commutation between a tenant and his lord, and not incurred as a fine, it was not long acceded to; and in the reign of King John it was not only insisted upon as an undoubted right of the king's tenants, but the barons procured the insertion of the present chapter of Magna Charta, that it should be imposed only by the common council of the kingdom.
The amount of escuage assessed upon any estate was, of course, according to the extent of it; this being estimated sometimes by the number of knight's fees it contained, and at others by the value of the land.
This chapter in King John's charter also provides for another privilege claimed by the superior lords under the feudal system, namely the assessing of aids for defraying some of their own private charges. Strictly speaking, however, aids were not at first a direct feudal obligation, but were originally sums of money obtained from the tenants, out of a regard to the person and claims of the lord. In their most ancient state, too, both the amount and nature of aids were as uncertain as the occasions which arose to demand them and the property of the tenant could furnish ; but in the course of years they became established renders of duty, of which the three events mentioned in the text gave, in Normandy, the most general opportunities for claiming. These soon became fixed and established, to the exclusion of certain other unreasonable demands made by the inferior lords of fees, which passed also under the title of aids; as an assessment upon the tenants, to enable a lord to discharge his debts; and one termed aide de relief, to furnish the sum required by the law of reliefs already treated of. In the reign of King Henry II. also, it was doubted whether the lords might not require aids toward the perfecting of their military preparations; but all these illegal aids were abolished by the present chapter of King John's great charter. At the same time, three certain aids were permitted to be taken, as well by the king as by his barons : see chap. xv., to which also this note will be a sufficient commentary. They were ordained, however, to be taken in a lawful manner, and were, firstly, for redeeming the king's or a lord's body, that is to say, whenever he became a prisoner of war; secondly, for making his eldest son a knight ; and thirdly, for oni:e marry