« ForrigeFortsett »
ing his eldest daughter. For the first of these causes the aid was less frequent and more uncertain than any of the others; but at the same time it was of the highest consequence that he should be ransomed at any rate, so often as he might be made a prisoner of war. Sir William Blackstone, in his Commentaries, Book II., chap. 5, page 63, observes that as this species of aid was a natural consequence of feudal attachment and fidelity, the omission of it, whenever it was in the tenant's power, was, by the rigor of the feudal law, the absolute forfeiture of his estate. The second species of aid was for making the lord's eldest son a knight, “ a matter," says the same authority," that was former- : ly attended with great ceremony, pomp, and expense.” The intent of this was to bring up the heir of the lordship to arms and chivalry, for the better defence of the nation, and the assessment could not be made until the young chief had attained the age of fifteen, or at least was capable of bearing arms; but anciently, Sir Edward Coke observes, the lords would pretend that their eldest sons were hopeful and forward, as in their abilities and stature, and they would thence demand an aid larger than was due from their tenants, and also before the proper time. The same grievance was likewise imposed, with respect to the third kind of aid mentioned in the text, that of once marrying the lord's eldest daughter ; “by giving her," says Blackstone, a suitable portion, for daughters' portions in those days were extremely slender, few lords being able to save much out of their income for this purpose ; nor could they acquire money by other means, being wholly conversant in matters of arms; nor, by the law of their tenure, could they charge their lands with this or any other encumbrances."
CH. XIII.--The present chapter of Magna Charta specifies two kinds of franchises, namely, its ancient liberties and its free customs ; the first of which signify a royal privilege or branch of the king's prerogative, held by grant or prescription, and existing in the hands of his subjects, by which he or they enjoy privileges not common to ordinary persons. Free customs are liberties enjoyed by custom or usage, which, in its legal sense, signifies a law not written, but established by long use and the consent of ancestry.
CH. XIV.-The first members of the English council, down to the time of King Henry III., were those persons only who held of the king in chief, and who are ordained to be summoned by the present chapter of Magna Charta; and they are designated in the more ancient histories and works on law by several names importing superior rank, as barons of the kingdom, the greater barons, &c., and the assembly which they formed is called the Great Council or King's Court, the word Parliament not coming into use until the latter part of the reign of King Henry III. Baron Maseres supposes in his paper that this council met at the least thrice in the year, at the feasts of Christmas, Easter and Whitsuntide, which meetings being in the ordinary course, required no issue of summons, though there were occasionally others called for a special purpose, when the king issued his command for the council to come together. The occupations, however, were the same in each, as debates concerning war and peace, the granting of aids to the king, the regulation of the laws, and the trial of great causes between the barons. The king however, at this period, had not the power of omitting to call a baron to the Great Council, nor of summoning any person who was not a tenant in chief.
The tenants in chief, according to Domesday, amounted to about seven hundred persons; but their baronies being very unequal in extent, and being in the course of years repeatedly divided and subdivided, especially by partitions with female heirs, they were diminished in quantity, while the number of tenants in chief was considerably increased. There are instances, says Baron Maseres, of persons holding the hundredth, and even the three hundredth part of a barony; yet all these had a title to a seat in Parliament, and hence arose the distinction between the greater and lesser baróns. A difference between these is noted in the present chapter of Magna Charta ; for the king was therein bound to summon the former to Parliament individually by his letters, but the latter were to be summoned in general by his sheriffs or bailiffs.
CH. XVI.—This statute was intended to relieve such as had no remedy by the common law; and it was a restoration of the ancient law of England. It is usually stated that the writ, entitled from its commencing words, “Ne injuste vexes," was originally grounded upon this act. Sir William Blackstone, however, adopts the general helief following the “New Natura Brevium” of Fitzherbert; and explains that the writ is available where a tenant, who has held of a lord by certain services, has inadvertently given his lord possession of more and of greater.
The Court of Common Pleas, which this chapter made permanent in its situation, is one of the king's courts now constantly held in Westminster Hall; but in ancient time it was movable at the king's will, according to the place of the royal residence: whereupon, says Lord Coke, “many discontinuances ensued, and great trouble of jurors, charges of parties, and delay of justice; for these causes this statute was made." Sir William Blackstone states that, in the Saxon Constitution, there was only one superior court of justice in the kingdom, namely the General Council, of which some account has been already given. After the Norman invasion, the ecclesiastical jurisdiction was separated from the civil; and King William soon after effected another separation, of the judicial and parliamentary power vested in the remaining members. On this account he established a constant court in his own residence, entitled “Aula Regis,” or the King's Hall, which was composed of the great officers of state. Of these, the Lord Marshal generally presided in matters relating to honor and arms, and the military and national laws; the Lord Chancellor kept the royal seal, and had cognizance of all letters, writs and grants, to which it was affixed; the Lord Treasurer was the chief authority in affairs of the revenue; and certain persons who had carefully studied the laws, called the king's justices, all of whom were assisted by the greater barons of the realm, formed a court to be consulted in cases of appeal or difficulty. Over this assembly presided an officer of great rank and power, who was denominated the Chief Justiciary of all England. He
was esteemed the second person in the kingdom, of which, by virtue of his office, he was guardian in the king's absence; and it was he who principally determined the vast variety of causes that were brought before this court. As such an establishment was bound to follow the king's household to whatsoever place it might remove, the trial of common causes became so difficult to the people, that its permanence formed one of the petitions of the barons in the preliminary articles of the great charter; and it was in consequence settled in Westminster Hall, the place where the ancient kings of England were accustomed to reside, in which it has in general ever since continued. At the same time were appointed justices of the common pleas, having a chief whose jurisdiction was to hear and determine all pleas of land and injuries between subject and subject.
Trials for novel disseisin, for which this statute first provides, were inquisitions for the recovery of lands or tenements of which any party had been disseized or dispossessed; and the term novel, or new, was applied, because the justices who travelled went their circuits only from seven years to seven years; and no assize was allowed before them which had commenced previously to the last circuit, as such was called an ancient assize; while that which was concerning a later dispossession, was termed an “assize of novel disseisin." A trial of “mort d'ancestre was an inquiry after the death of any ancestor or relative who was possessed of lands, &c., as estates which subsequently to their decease were abated -broken down or destroyed-by a stranger; but the writ for this trial must be brought within fifty years, or the right may be lost by the neglect. The term ancestor is here considered to stop at the father in the ascending line, and the writ assumes a new name for the more ancient relations. It should be observed that both this writ and the former are now nearly obsolete, being almost superseded by the action of ejectment, excepting in some very peculiar cases. A trial or assize of darrien presentment takes place when a person, or his ancestors under whom he claims, have presented a clerk to a benefice, and upon the next vacancy a stranger presents, disturbing him who is the real patron. In such a case, the true patron shall have a writ of last presentation directed to the sheriff, to summon an assize or jury, to inquire who was the last patron that presented to the vacant church; and according as the cause is decided, a writ is issued to the bishop to institute that clerk in favor of whose patron it is determined. Assizes of this nature were formerly conclusive, but they are now wholly disused, in consequence of a statute of the 7th of Anne, 1708, cap. xviii., by which a person has a right to recover if his title be good, notwithstanding the writ of last presentation. Previously to the making of this charter, all the above writs were required to be brought before the king or his justiciary, wherever they might happen to be; but the present chapter tended considerably to relieve the jurors and parties in the plea, both in time and in expense, since by it justice was ordained to be administered to them in their own counties, without their following the king's court, or that of the common pleas, to a distant place.
CH. XXI., XXII.-The term "amerciament" is derived of the French a merci, and signifies the pecuniary mulct laid upon an individual who has offended, and therefore lies at the mercy of the king. Amerciaments, properly so called, are penalties assessed by the peers or equals of the offending party; and they are considered as more merciful than fines, because, if they are too heavy, a release may be sued by an ancient writ founded upon Magna Charta.
The next species of amerciament mentioned in the text, is that to be assessed on a merchant, and this was to be done, saving his merchandise, upon the same principle as before; "for trade and traffic,” says Lord Coke, "are the livelihood of the merchant and the life of the commonwealth."
Of villains in England under the feudal system, there were two kinds: the first were called villains in gross, and were such as belonged to the person of a lord and his heirs; and the second were those who belonged to a manor, and appertained to the lord thereof only while he held it. These were termed villains regardant. But though the condition of a pure villain was such, that his lord was entitled to impose upon him those aids and taillages already treated of, and even to dispossess him of all his property, yet the great charter has, with great humanity, a clause in its favor which states that he shall be amerced with safety to his wainage. This word is derived from the Saxon wagna, which signifies a cart or wagon; and the most liberal meaning of the passage is, that tillage and husbandry shall not be hindered by levying a distress or amerciament.
CH. XXIII.-The original intent of this statute was to avoid the repetition of those fictitious exactions which, during the reigns of Richard I. and John, were made in the king's name for making of bridges, banks, fortrésses, and bulwarks, contrary to law.
Ch. XXIV.—Pleas of the crown, which it is the object of this chapter to preserve, are those suits which the king commences against all crimes and misdemeanors ; “ because," says Sir William Blackstone, “in him centres the majesty of the whole community, and he is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public offence.” The persons, then, by whom these pleas could not be held, comprise all classes of the royal officers, although four degrees only are mentioned in the text. Sheriffs were the chief officers under the king in every county, deriving their title from the two Saxon words shire and reve, the bailiff or steward of the division. They are called, however, in the Latin text of the great charter, vicecomes, which signifies, in place of the earl of the county, who anciently governed it under the king. The next officer mentioned in this chapter of Magna Charta, is called constabularius, or constable, which is sometimes derived from the Saxon; but other authorities have conceived it, more truly, to come from the Latin comes stabuli, a superintendent of the imperial stables, or master of the horse. This title, however, began, in the course of time, to signify a commander, in which sense it was introduced into England. In the present instance, the word is put for the constable, or keeper of a castle, frequently called a castellan, of whose dignity mention will be made in a future note. They were possessed of such considerable power within their own precincts, that previously to the present act they held trials of crimes, properly the cognizance of the crown, as the sheriffs did within their respective bailiwicks, and sealed with their own effigies on horseback.
As prisons were considered to be an important part of all ancient castles, these officers are sometimes called constables of fees, which signifies those who were paid for keeping of prisons. In this part of their duty they appear often to have been guilty of great cruelty.
The title of coroner implies that he was an officer of the crown, to whom, in certain cases, pleas of the crown, in which the king is more immediately concerned, are properly belonging; and in this sense the lord chief justice of the king's bench is the principal coroner of the kingdom. Previously to the statute of Magna Charta a coroner might not only receive accusations against offenders, but might try them.
CH. XXV.-From the time of the Norman invasion downward, the cities and towns of England were vested either in the crown, the clergy, or the barons; that is to say, persons of one of these classes were the immediate lords of towns, &c. Those which appertained to the king were of several kinds ; for he possessed some by the original inheritance of his crown, which were termed ancient demesne ; and others became his by way of escheat, want of heirs, attainder, or forfeiture.
From the reign of William I. also, the king was accustomed to let out the several counties of the realm at a farm or rent, concerted between the crown and the holder, or else they were committed to custody, the nature of which is shown in the note on Chapter IV.
When a county was let out at a greater farm than it had been formerly rated at, the advance money was usually termed crementum, the increase, &c.
The word county, in Latin comitatus, is derived from comes, the earl, a principal governor of it, to whom the sheriff was anciently a deputy; the term hundred is supposed to have been introduced by King Alfred, and to signify a division of country containing ten towns, each of which consisted of ten families of freeholders; a trething, or trithing, amounted to a third part of a county; and a wapentake, which is equivalent to a hundred, was so called because the governor of the district, when he first entered on his office, appeared in the field on horseback holding a lance, which all the chief men of the hundred touched with a similar weapon, thereby evincing their unanimity. (Blackstone, Jacob.)
CH. XXVI., XXVII. -- The ancient common law respecting wills was, in general, peculiarly compulsory; for in the time of Henry II. a person's goods were to be divided into three parts, of which one went to his wife, another to his heirs, and a third he was at liberty to dispose of. If he were childless, his widow claimed half; and if he were a widower with children, they also claimed an equal portion; and these were termed their reasonable shares, as the expression is used in the text of Magna Charta.
It was also an ancient custom for the clergy to claim a gift on the decease of any of their parishioners, called a mortuary, which was intended as a species of