concedes to his men “_ne eant in exercitu extra Angliam nisi in
Normanniam et in Brittaniam_,” a not unfair compromise, which may
possibly represent the sense in which the present chapter was
interpreted by the barons.
-----
If the barons thought they had thus settled the vexed questions
connected with foreign service, they deceived themselves. Although this
chapter (unlike those dealing with scutage) remained in full force in
all subsequent confirmations, it was far from preventing disputes. Yet
the disputants in future reigns occupied somewhat different ground. From
the days of William I. to those of Charles II., when the feudal system
was abolished, quarrels frequently arose, the most famous of which
culminated in 1297 in Edward’s unseemly wrangle with the Earls of
Norfolk and Hereford, whose duty it was to lead the royal army as
hereditary Constable and Marshal respectively, but who refused
point-blank to embark for Gascony except in attendance on the king’s
person.[532]
-----
Footnote 532:
Walter of Hemingburgh, II. 121. Cf., on the whole subject of foreign
services, _supra_, 154.
-----
It has been shown in the Historical Introduction[533] how the
obligations of a military tenant fell naturally into three groups
(services, incidents, and aids), while a fourth group (scutages) was
added when the Crown had adopted the expedient of commuting military
service for its equivalent value in money.
Feudal grievances also may be arranged in four corresponding groups,
each redressed by special clauses of Magna Carta: abuse of _aids_ by
chapters 12, 14, and 15; abuse of the feudal _incidents_, by chapters 2
to 8; abuse of _scutage_, by chapters 12 and 14; and abuse of _service_,
by the present chapter, which thus completes the long list of provisions
intended to protect tenants against their feudal lords.
-----
Footnote 533:
_Supra_, 72–86.
-----
CHAPTER SEVENTEEN.
Communia placita non sequantur curiam nostram sed teneantur in aliquo
loco certo.
Common pleas shall not follow our court, but shall be held in some
fixed place.
An attempt was here made to render royal justice cheaper and more
accessible. Law-suits in which the Crown had no special interest, common
pleas, were to be held in some one, fixed, pre-appointed spot, and must
no longer follow the king as he moved about from place to place. The
full extent of the boon conferred by this reform will be better
appreciated after a short consideration of the method of dispensing
justice adopted by Henry II. and his sons.
I. _The Curia Regis as a Court of Law._ The evil complained of was a
characteristically medieval one, and arose from the fact that all
departments of government were originally centred in the king and his
household, or _Curia Regis_, which performed royal and national business
of every kind. This _Curia Regis_, indeed, united in itself the
functions of the modern Cabinet, of the administrative departments (such
as the Home Office, the Foreign Office, and the Admiralty), and of the
various legal tribunals. It was the parent _inter alia_ of the Court at
St. James’s and the courts at Westminster. One result of throwing so
many and miscellaneous duties on a small body of hard-worked officials
was to produce a congestion of business. Nothing could be done outside
of the royal household, and that household never tarried long in any one
spot. Everything was focussed to one point, but to a point constantly in
motion. Wherever the king went, there the _Curia Regis_, with all its
departments, went also. The entire machinery of royal justice followed
Henry II., as he passed, sometimes on the impulse of the moment, from
one of his favourite hunting seats to another. Crowds thronged after him
in hot pursuit, since it was difficult to transact business of moment
elsewhere.
This entailed intolerable delay, annoyance, and expense upon litigants
who brought their pleas for the king’s decision. The case of Richard
d’Anesty is often cited in illustration of the hardships which this
system inflicted upon suitors. His own account is extant and gives a
graphic record of his journeyings in search of justice, throughout a
period of five years, during which he visited in the king’s wake most
parts of England, Normandy, Aquitaine, and Anjou. The plaintiff,
although ultimately successful, paid dearly for his legal triumph.
Reduced to borrow from the Jews to meet his enormous outlays, mostly
travelling expenses, he had to discharge his debts with accumulations of
interest at the ruinous rate of 86⅔ per cent.[534]
-----
Footnote 534:
Cf. J. F. Stephen, _Hist. of Crim. Law_, I. 88-9.
-----
II. _Common Pleas and Royal Pleas._ Long before 1215 all litigations
conducted before the king’s courts had come to be divided roughly into
two classes, according as the royal interests were or were not specially
affected by the issue. Those on one side of this fluctuating line were
known as royal pleas, or “pleas of the Crown,” provisions for holding
which are contained in chapter 24, those on the other side as ordinary
pleas or “common pleas,” to which alone the present chapter refers. As
these ordinary suits did not require to be determined in the royal
presence, it was therefore possible to appoint a special bench of judges
to sit permanently in some fixed spot, to be selected once for all as
likely to suit the convenience of litigants. No town was named in Magna
Carta; but Westminster, even then the natural home of law, was probably
intended from the first. It is Westminster that Sir Frederick Pollock
has in mind when he writes in reference to this chapter: “We may also
say that Magna Carta gave England a capital.”[535] The barons in 1215,
however, in asking this reform, were not insisting on any startling
innovation, but demanding merely the strict observance of a rule long
recognized. During most of John’s reign, a court did sit at Westminster
dispensing justice, with more or less regularity; and there most “common
pleas” were tried, unless John ordered otherwise.[536] Magna Carta
insisted that all exceptions must cease; the rule of law must supersede
the royal caprice.
-----
Footnote 535:
_Jurisprudence and Ethics_, 209. Sometimes, however, another “fixed
place” was substituted. The Court of Common Pleas once sat at York
under Edward III. and at Hertford under Elizabeth. See Maitland,
_Select Pleas of the Crown_, xiii. The Statute 2 Edward III. c. 11,
enacted that it should not be removed to any new place without due
notice.
Footnote 536:
See Prof. Maitland, _Select Pleas of the Crown_, xiii.-xvi.
III. _Effects of Magna Carta on the genesis of the three Courts of
Common Law._ The ultimate consequences of the accomplishment of this
reform reached further than was foreseen. Intended merely to remove from
litigants a practical grievance of frequent occurrence, it had important
indirect effects on the development of the English Constitution. By
securing for common pleas a permanent home, it gave an impetus to the
disintegrating tendencies already at work within the many-sided
household of the king. It contributed somewhat to the slow process
whereby the _Curia Regis_, as an administrative organ, was
differentiated from the same _Curia_ as the dispenser of justice. It
helped forward the cleavage destined to divide completely the future
Courts of Westminster from the Court of St. James’s and from Downing
Street. Nor was this all: the special treatment accorded to “common
pleas” emphasized the distinction between them and royal pleas, and so
contributed to the splitting up of the same _Curia Regis_, on its
judicial side, into two distinct tribunals. One little group of judges
were set apart for hearing common pleas, and were known as "the king’s
Judges of the Bench," or more briefly as “the Bench,” and at a later
date as the Court of Common Pleas. A second group, reserved for royal
pleas, became the court _Coram Rege_, known subsequently as the Court of
King’s Bench. There were thus two benches: a common bench for common
pleas and a royal bench for pleas of the Crown.[537]
-----
Footnote 537:
Cf. _supra_, 109.
-----
The double process by which these two small courts separated themselves
slowly from the parent court and from each other began long prior to
Magna Carta, and was not completed before the close of the thirteenth
century. These benches were also closely linked with a third bench,
known for centuries as the Court of Exchequer, which was in its origin
merely one department of that government bureau, the king’s financial
Exchequer—that office in which money was weighed and tested and the
royal accounts drawn up. Many disputes or pleas affecting Crown debts
and debtors had to be there decided, and in due time a special group of
officials were set aside to try these. These men, called, not judges,
but “barons of the exchequer,” formed what was in fact, though not in
name, a third bench or court of justice.
All three of the Courts of Common Law—the Court of King’s Bench, the
Court of Common Pleas, and the Court of Exchequer—were thus offshoots of
the king’s household. In theory, each of these ought to have confined
itself to the special class of suits to which it owed its origin—to
royal pleas, common pleas, and exchequer pleas respectively; but by a
process well known to lawyers and law-courts in all ages, each of them
eagerly encroached on the jurisdictions and the fees appropriate to the
others, until they became, for most purposes, three sister courts of
similar and co-ordinate authority. They were bound to decide all suits
according to the technical and inflexible rules of common law; and their
jurisdiction thus required a supplement, which was supplied by the
genesis of the Court of Chancery, dispensing, not common law, but
equity, which professed to give (and, for a short time, actually did
give) redress on the merits of each case as it arose, unrestrained by
precedents and legal subtleties.
IV. _The Evolution of the Court of Common Pleas._ The comment usually
made upon the present chapter is that we have here the origin of the
Court of Common Pleas. Now, legal institutions do not spring,
full-fledged, into being. The Court of Common Pleas, like its sister
Courts of King’s Bench and Exchequer, was the result of a long process
of gradual separation from a common parent stem. Prior to 1215 several
tentative efforts seem to have been made towards establishing each of
these. On the other hand, it is probable, nay certain, that long after
1215 the Court of Common Pleas did not completely shake off either its
early dependence upon the _Curia Regis_, or yet its close connection
with its sister tribunals.
Three stages in the process of evolution may be emphasized. (1) The
earliest trace of the existence of a definite bench of judges, set apart
for trying common pleas, is to be found in 1178, not in 1215. When Henry
II. returned from Normandy in the former year, he found that there had
been irregularities in his absence. To prevent their recurrence, he
effected certain changes in his judicial arrangements, the exact nature
of which is matter of dispute. A contemporary writer[538] relates how
Henry chose two clerks and three laymen from the officials of his own
household, and gave to these five men authority to hear all complaints
and to do right “_and not to recede from his court_.” It was long
thought that this marked the origin of the Court of King’s Bench, but
Mr. Pike[539] has conclusively proved that the bench thus established
was the predecessor, not of the royal bench, but rather of the bench for
common pleas.
-----
Footnote 538:
The chronicler known as Benedict Abbot, I. 107 (Rolls Series).
Footnote 539:
_House of Lords_, 32.
-----
In 1178, then, these five judges were set apart to hear ordinary suits;
but they were specially directed not to leave Henry’s court; so that
common pleas still “followed the king,” even ordinary litigants in
non-royal pleas having to pursue the king in quest of justice as he
passed from place to place in quest of sport.
It must not be supposed that the arrangement thus made in 1178 settled
the practice for the whole period of thirty-seven years preceding the
grant of Magna Carta. On the contrary, it was merely one of many
experiments tried by that restless reformer, Henry of Anjou; and the
separate court then instituted may have been pulled down and set up
again many times. The bench which appears in 1178 had probably, at best,
a fitful and intermittent existence. There is evidence, however, that
some such court did exist and did try common pleas in the reigns of
Richard and John.[540] On the other hand, this tribunal had in John’s
reign ceased to follow the king’s movements habitually (thus
disregarding the decree of 1178), and had established itself at
Westminster.[541] It was in 1215 considered an abuse for John to try a
common plea elsewhere. Times had changed since his father had granted as
a boon that a set of judges should remain constantly at “his court” to
try such cases.
-----
Footnote 540:
See Prof. Maitland, _Sel. Pl. Crown_, xiii.-xvi.; see also in _Pipe
Roll_, 7 John (cited Madox, I. 791) how money was paid that a plea
pending before the _Justiciarii de banco_ might be heard _coram rege_.
This entry proves that in 1205 there were two distinct courts, one
known as _de banco_ and the other as _coram rege_.
-----
Footnote 541:
See Maitland, _Ibid._
-----
(2) Magna Carta in 1215 gave authoritative sanction to the already
recognized rule that common pleas should be tried at Westminster,
instead of moving with the king. No exceptions were henceforth to be
allowed. Young Henry renewed this promise, and the circumstance of his
minority favoured its strict observance. A mere boy could not make royal
progresses through the land dispensing justice as he went. Accordingly,
all pleas continued for some twenty years to be heard at Westminster.
The same circumstances, which thus emphasized the stability of common
pleas (along with all other kinds of pleas) in one fixed place, may have
arrested the process of cleavage between the two benches. All the judges
of both courts sat at Westminster, and therefore there was the less need
for allocating the business between them with any exactitude. The two
benches were in danger of coalescing.
(3) About the year 1234 a third stage was reached. Henry began to follow
the precedent, set by his ancestors, of moving through his realm with
judges in his train, hearing pleas wherever he stopped. While one group
of judges went with him, another remained at Westminster. Some way of
allocating the business had therefore to be found. Common pleas, in
accordance with Magna Carta, remained stationary; while pleas of the
Crown went on their travels. The split between the two benches now
became absolute. Each provided itself with separate records. From the
year 1234, two continuous series of distinct rolls can be traced, known
respectively as _rotuli placitorum coram rege_ and _rotuli placitorum de
banco_. If any date in the history of one law court, which is in process
of becoming two, can be reckoned as specially marking the point of
separation, it should be that at which separate rolls appear. The
court’s _memory_ lies in its records, which are thus closely associated
with its identity. In 1234 the common bench and the royal bench had
become distinct.[542] Evidence drawn from a few years later proves that
a definition of common pleas had been arrived at and that the rule which
required them to be held “in a fixed place” was insisted on. While Henry
and his justices sat in judgment at Worcester in 1238, a litigant
protested against his suit being tried before them. It was a “common
plea” and therefore, he argued, ought not to follow the king, in
violation of Magna Carta. At Westminster only, not at Worcester or
elsewhere, could his case be heard.[543]
-----
Footnote 542:
See Maitland, _Sel. Pl. Crown_, xviii.
Footnote 543:
See _Placitorum Abbreviatio_ (p. 105) 21 Henry III., cited Pike,
_House of Lords_, p. 41. Cf. also Bracton’s _Note Book_, pleas Nos.
1213 and 1220.
-----
With royal pleas, however, it was very different: for long they
continued to follow the king’s person without any protest being raised;
and the Court of King’s Bench did not finally settle at Westminster for
nearly a century after the Court of Common Pleas had been established
there. So late as 1300, Edward I. ordained by the _Articuli super
cartas_ that “the Justices of his Bench” (as well as his Chancellor)
should follow him so that he might have at all times near him “some
sages of the law, which be able duly to order all such matters as shall
come into the Court at all times when need shall require.”[544]
-----
Footnote 544:
28 Edward I. c. 5.
-----
V. _Erroneous Views._ In the reign of Edward I. the real motive of this
chapter of Magna Charta—so quickly had the organization of the law
courts progressed—had already been lost sight of. The day of wandering
common pleas, such as that of Richard d’Anesty, had been long forgotten.
Some litigants of Edward’s time had, however, a different grievance of
their own, connected with the hearing of their suits. The Court of
Exchequer was willing, for an adequate consideration, to place its
specially potent machinery, devised originally for the king’s exclusive
use, at the disposal of private creditors, thus treating “common pleas”
as “exchequer pleas.” Ordinary debtors, summoned as defendants before
the _barones scaccarii_, were subjected to harsher treatment than they
would have experienced elsewhere. It was not unnatural that defendants
who found themselves thus hustled should read the words of Magna Carta
relative to “common pleas” as precisely suited to their own case. They
made this mistake the more readily as the original motive had been
forgotten. The Charter was thus read as preventing the stationary Court
of Exchequer (not the constantly moving King’s Bench) from hearing
ordinary suits. This erroneous view received legislative sanction. The
_Articuli super cartas_ in 1300 declared that no common pleas should
thenceforth be held in the Exchequer “contrary to the form of the Great
Charter.”[545]
-----
Footnote 545:
See 28 Edward I. c. 4. Many previous attempts had been made to keep
common pleas out of the Exchequer _e.g._ the writs of 56 Henry III.
and 5 Edward I. (cited Madox, II. 73-4) the so-called statute of
Rhuddlan (12 Edward I., see _Statutes of Realm_, I. 70). Madox also
(II. 73-4) takes the erroneous view that c. 17 of the Great Charter
relates to the Exchequer; so does Mr. Bigelow (_History of Procedure_,
130–1), who goes further astray by explaining the point of the
grievance as the difficulty of getting speedy justice at the
Exchequer, because the barons refused to sit after their fiscal
business had been finished, at the Easter and Michaelmas sessions.
This is an error: the Barons of Exchequer made no difficulty about
hearing pleas: quite the contrary. Plaintiffs were equally eager to
purchase the writs which they were keen to sell: it was only
defendants (debtors) who objected to the rapid and stringent procedure
for enforcing payment adopted by this efficient court. The sheriffs
and others waiting to render accounts before the Exchequer also
protested against the congestion of business produced at the Exchequer
by the eagerness of litigants who pressed there for justice. See
Madox, II. 73. Plaintiffs had no reason to complain.
-----
This is a clear misinterpretation of the intention of Magna Carta. The
Exchequer never “followed the Crown”; it stayed at Westminster where its
offices, tallies, and pipe rolls were. The Charter would have expressed
itself in widely different words if it had desired to exclude common
pleas from the Exchequer. The _Articuli super Cartas_, however,
attempted what the Charter of 1215 did not. After 1300 it was clearly
illegal to hold any pleas in the Exchequer, unless such as affected the
Crown and its ministers. Subsequent statutes confirmed this; but their
plain intention was always defeated by the ingenious use of legal
fictions and the connivance of the Barons of Exchequer, who welcomed the
increase of their fees which kept pace with the increase of
business.[546]
-----
Footnote 546:
The fiction of “Crown debtors” is well known: plaintiffs obtained a
hearing in the Exchequer for their common pleas by alleging that they
wished to recover debts due to them “in order to enable them to answer
the debts they owed to the king.” See Madox, II. 192.
-----
The evil directly attacked by Magna Carta was something quite
different—an evil wider, more pressing and less technical, namely, the
practice of causing ordinary litigants, with their legal advisers and
witnesses, to dance attendance on a constantly moving court.
CHAPTER EIGHTEEN.
Recogniciones de nova dissaisina, de morte antecessoris, et de ultima
presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos,
vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus
duos justiciarios per unumquemque comitatum per quatuor vices in anno,
qui, cum quatuor militibus cujuslibet comitatus electis per comitatum,
capiant in comitatu et in die et loco comitatus assisas predictas.
Inquests of _novel disseisin_, of _mort d’ancestor_, and of _darrein
presentment_, shall not be held elsewhere than in their own
county-courts,[547] and that in manner following,—We, or, if we should
be out of the realm, our chief justiciar, will send two justiciars
through every county four times a year, who shall, along with four
knights of the county chosen by the county, hold the said assizes[548]
in the county court, on the day and in the place of meeting of that
court.
-----
Footnote 547:
“_Comitatus_” indicates both the county where the lands lay and the
court of that county. It was originally the sphere of influence of a
comes or earl. Cf. _supra_, c. 2, (p. 238, n.)
Footnote 548:
“The _said_ assizes” were previously called, not assizes but
“inquests” (_recogniciones_), a wider term of which the three petty
assizes here named were three special applications.
-----
Provision is thus made for holding before the king’s travelling
justices, frequently and in a convenient manner, three species of
judicial inquests known as “the three petty assizes.” These are of
exceptional interest, not only in relation to Magna Carta, but from
their intimate connection with several constitutional problems of prime
importance; with the reforms of Henry II. on the one hand, and with the
genesis of trial by jury and of the Justices of Assize on the other.
I. _The Curia Regis and the travelling Justices._ From an early date,
certainly from the accession of Henry I., it was the Crown’s practice to
supplement the labours which its officials conducted within the
precincts of the royal exchequer by the occasional despatch of chosen
individuals to inspect the provinces in the royal interests, collecting
information and revenue, and, incidentally, hearing lawsuits. Justice
was thus dispensed in the king’s name by his delegates in every shire of
England, and a distinction arose between two types of royal courts: (1)
_the King’s Council and its offshoots_ (including the three courts of
common law and the court of chancery) which at first followed the king’s
person, but gradually, as already shown,[549] found a settled home at
Westminster; and (2) _the courts of the itinerant justices_ which
exercised such delegated authority as the Crown chose from time to time
to entrust to them. The natural sphere of the labours of these royal
commissioners as they passed from district to district was the court of
each shire, specially convened to meet them. They formed in this way the
chief link between the old local popular courts and the system of royal
justice organized by Henry II.,[550] subordinating the former to the
latter, until the county courts virtually became royal courts. These
travelling justices passed through two stages, two different types
receiving royal recognition at different periods, the Justices in Eyre
and the Justices of Assize respectively.
-----
Footnote 549:
See _supra_, c. 17.
Footnote 550:
Cf. _supra_, p. 106.
-----
(_a_) _The Justices in Eyre_ were the earliest form of travelling
judges, though their original duties were rather financial and
administrative, than strictly judicial. Their history extends from the
reign of Henry I. to the end of the fourteenth century.[551] Their
outstanding characteristics were the sweeping nature of the commissions
under which they acted (_ad omnia placita_), the harsh and drastic way
in which they used their authority, and their intense unpopularity.
Their advent was dreaded like a pestilence: each district they visited
was left impoverished by fines and penalties. On one occasion, the men
of Cornwall “from fear of their coming, fled to the woods.”[552]
-----
Footnote 551:
See W. S. Houldsworth (_History of English Law_, p. 115), who cites
1397 as the date of the final abolition of Eyres.
Footnote 552:
This was in 1233: see Pollock and Maitland, I. 181.
-----
An eyre was only resorted to at long intervals—every seven years came to
be the recognized term—and was intended as a severe method of punishing
delinquencies and miscarriages of justice occurring since the last one,
and of collecting arrears of royal dues. It was not a visit from these
universally-hated Justices of Eyre that the barons in 1215 demanded four
times a year.
(_b_) _The Justices of Assize_ were also travelling judges, but in their
original form at least, possessed hardly another feature in common with
the Justices in Eyre. Their history extends from a period not earlier
than the reign of Henry II. down to the present day.[553] They seem to
have been popular from the first, as their primary function was to
determine pending suits by a rational and acceptable form of procedure;
while the scope of their jurisdiction, although gradually extended as
their popularity increased, was at all times limited strictly by the
express terms of their commissions. They were regarded not as royal
tax-gatherers armed with harsh powers of coercion, but as welcome
bearers of justice to the doors of those who needed it.
-----
Footnote 553:
Blackstone, _Commentaries_, III. 58, assigns 1176, (the assize of
Northampton) as the date of their institution.
-----
At first their duties were confined to one species of judicial work,
namely, to presiding at enquiries of the kind specially mentioned in the
text. These particular inquests were known as “assizes,” and the new
species of travelling judges were hence called “Justices of Assize,” a
name which has clung to them for centuries, although their jurisdiction
has been gradually increased till it now includes both civil and
criminal pleas of every description, and although meanwhile the
invention of new forms of process has superseded the old “assizes,” and
at last necessitated their total abolition.[554] They are still
“justices of assize” in an age which knows nothing of assizes.
-----
Footnote 554:
See Statute 3 and 4 William IV. c. 27 §§ 36-7. The last actual case of
a Grand Assize occurred in _Davies_ v. _Loundes_, in 1835 and 1838 (1
Bing. N. C. 597, and 5 Bing. N. C. 161).
-----
II. _The Nature and Origin of the three Petty Assizes._ The institution
of the "assizes"—particular forms of the sworn inquest—occupied a
prominent place among the expedients by which Henry II. hoped to
substitute a more rational procedure for the form of proof known as
trial by combat.[555]
-----
Footnote 555:
The name “Assize” is sometimes a source of confusion, because of the
various meanings which attach to it. (1) Originally it denoted a
session or meeting of any sort. (2) It came to be specially reserved
for sessions of the king’s Council. (3) It was applied to any
Ordinance enacted by the king in such a session, _e.g._ the Assize of
Clarendon or the Assize of Northampton. (4) It was extended to every
institution or procedure established by such royal ordinance, but (5)
more particularly applied to the institutions or procedures known as
the Grand Assize, and the Petty Assizes, from which the “Justices of
Assize” took their name. (6) Finally, it denotes at the present day a
“session” of these Justices of Assize, thus combining something of its
earliest meaning with something of its latest. In certain contexts it
has other meanings still, _e.g._ (7) an assessment or financial burden
imposed at a “session” of the king’s council or of some other
authority.
The _duellum_, introduced at the Norman Conquest, remained for a century
thereafter the chief method in use among the upper classes for
determining all serious pleas or litigations. Gradually, however, it was
confined to two important groups of pleas, one civil and the other
criminal: namely, appeals of treason and felony on the one hand, and
suits to determine the title to land on the other.[556] This process of
restriction was accelerated by the deliberate policy of Henry II., who
attempted, indeed, to carry it much further, devising machinery which
provided for the defendant or accused party, wherever possible, an
option by resorting to which he could, in an ever increasing variety of
circumstances, escape trial by battle altogether. Under chapter 36 will
be explained the expedient adopted for evading combat in an appeal of
treason or felony. The present chapter relates to the procedure devised
by Henry for superseding the _duellum_ in certain important groups of
civil pleas,[557] and incidentally affords proof that this part of his
reforms had already become popular with the opponents of the Crown. The
frequent use of the three Petty Assizes was now insisted on, although
the Grand Assize was still viewed askance for reasons to be explained in
connection with chapter 34.
-----
Footnote 556:
See Neilson, _Trial by Combat_, 33–6, and authorities there cited.
Footnote 557:
Cf. _supra_, pp. 103-4 for the place of “combat” in legal procedure;
and pp. 108-9 for Henry’s policy in discouraging it. For the later
history of trial by battle, see _infra_, under c. 36.
-----
(1) _The Grand Assize_ is not mentioned in Magna Carta; but some
acquaintance with it is a necessary preliminary to a proper appreciation
of the Petty Assizes. In the troubled reign of Stephen—which was rather
the reign of anarchy in his name—lands changed hands frequently. This
left to his successor a legacy of quarrels, too often leading to
bloodshed. There was hardly an important estate in England to which, at
Henry’s accession, two or more rival magnates did not lay claim.
Constant litigations resulted, and the only legal method of deciding the
issue was the _duellum_.
At some uncertain date, near the commencement of his reign, Henry II.
introduced a startling innovation. The holder of a property _de facto_
(that is the man in actual enjoyment of the estate in virtue of a _bona
fide_ title), when challenged to combat by a rival claimant was allowed
an option: he might force the claimant (if the latter persisted) to
refer the whole matter to the oath of twelve knights of the
neighbourhood. Henry’s ordinance laid down careful rules for the
appointment of these recognitors. Four leading knights of the whole
county were first to be chosen, on whom was placed the duty of selecting
twelve knights of the particular district where the lands lay, and
these, with all due solemnity and in presence of the king’s justiciars,
declared upon oath to which suitor the lands belonged. Their decision
was final, and determined the question of ownership for all time
coming.[558] The name Grand Assize was applied alike to the procedure
and to the knights who gave the verdict. The twelve knights thus
anticipated the functions of a modern jury, while the king’s justiciars
acted like the presiding judge at a modern trial.[559]
-----
Footnote 558:
See Glanvill, II. 7.
Footnote 559:
The various steps in the procedure ought to be clearly grasped, (_a_)
A claimant challenged the title of the actual tenant in the court
baron of the lord, from whom the tenement was held, and offered battle
by a champion, who was supposed to be a witness. (_b_) The tenant (now
become a defendant) applied to the king for a royal writ, the issue of
which, _ipso facto_, stopped all procedure in the court baron, (_c_)
The claimant (plaintiff) had thus to make the next move; and Henry’s
ordinance left only one move which he could make, namely to apply for
a new royal writ, but one of a different kind. This new writ referred
the question of title to twelve knights of the Grand Assize. (_d_)
Before these could be appointed and give their verdict, many
formalities and delays necessarily intervened, involving expensive
journeys to the king’s _Curia_, first by the four appointing knights
and afterwards by the twelve appointed. Months and even years might
elapse before the final verdict was obtained. This ingenious reform,
while superseding trial by battle, incidentally superseded also the
jurisdiction of mesne lords. Hence the Grand Assize never became
popular with the magnates. Cf. under c. 34.
-----
Valuable as was this innovation, it had one obvious defect. The option
it conferred might sometimes be usurped by the wrong man. It was
intended to operate in the interests of order and justice by favouring
the peaceable holder _de facto_; but what if a turbulent and lawless
claimant, scorning an appeal to legal process, took the law into his own
hands, evicted the previous holder by the rude method of self-help, and
thereafter claimed the protection of Henry’s ordinance? In such a case
the man of violence—the holder _mala fide_—would enjoy the option
intended for his innocent victim.
(2) _The petty assizes_ may, perhaps, be regarded as the outcome of
Henry’s determination to prevent such misuse of his new engine of
justice. If one claimant alleged that the other had usurped his rights
by violence or fraud, the king allowed the preliminary plea thus raised
to be summarily decided by the oath of twelve local landowners,
according to a procedure known as a petty assize. These petty assizes,
of which there were three kinds, all related to questions of
“possession,” as opposed to questions of “ownership,” which could only
be determined by battle or by the Grand Assize.
(_a_) _The assize of novel disseisin._ The word “seisin,” originally
synonymous with “possession” in general, was gradually restricted by
medieval lawyers to the possession of real estate. “Disseisin” thus
meant the interruption of seisin or possession of land; and was the
technical term applied to such violent acts of eviction as were likely
to defeat the intention of Henry’s ordinance of the Grand Assize.
“Novel” disseisin implied that such violent ejection was of
comparatively recent date, for a summary remedy could only be given
where there had not been undue delay in applying for it. The first of
the petty assizes, then, was a rapid and peaceable method of
ascertaining by reference to sworn local testimony whether an alleged
recent eviction had really taken place or not. Without any of the law’s
delays, without any expensive journeys to the king’s Court or to
Westminster, but in a rapid manner and in the district where the lands
lay, twelve local gentlemen determined upon oath all allegations of this
nature. If the recognitors of the petty assize answered “Yes,” then the
evicted man would have “seisin” immediately restored to him, and along
with “seisin” went the valued option of determining what proof should
decide the "ownership"—whether it should be battle or the Grand Assize.
An ordinance instituting this most famous of the three petty assizes was
issued probably in 1166, a year fertile in legal expedients, and formed
a necessary supplement to the ordinance of the Grand Assize, preventing
all danger that the option intended for the man of peace should be
usurped by the man of violence.[560]
(_b_) _The assize of mort d’ancestor._ The protection afforded to the
victim of a “novel disseisin” did not remove all possibility of justice
miscarrying. Interested parties, other than the man forcibly ejected,
even his heirs, were left unprotected. Further, an heir might be
forcibly deprived of his tenement either by his lord or by some other
rival claimant before he had an opportunity to take possession; never
having been “in seisin,” he could not plead that he had suffered
“disseisin.” For the benefit of such an heir, a second petty assize,
known as "mort d’ancestor," was invented.[561] This is mentioned in
article 4 of the Assize of Northampton, an ordinance issued by Henry in
1176; and this earliest known reference probably marks its origin.
Procedure, essentially similar to, though not quite so speedy or
informal as, that already described was thus put at the heir’s disposal.
If successful, he took the lands temporarily, subject to all defects in
his ancestor’s title, leaving as before the question of absolute
ownership to be determined (if challenged) by the more cumbrous
machinery of the Grand Assize.
-----
Footnote 560:
The date of the ordinance of the Grand Assize is not known. It has
been argued that its origin may be traced to an earlier date than that
of the assize of novel disseisin (see Mr. J. H. Round in the
_Athenaeum_ for 28th January, 1899); but in any case the _logical_
sequence seems to be that given in the text. The question of
_chronological_ sequence is still open.
Footnote 561:
At so late a date as 1267 it was found necessary to recognize by
statute the right of the heir who had come of age to oust his guardian
from his lands by an assize of _mort d’ancestor_. See Statute of
Marlborough, c. 16.
(_c_) _The assize of darrein presentment._ Advowson or the right of
appointing the incumbent to a vacant church benefice was then, as now, a
species of real estate. Such patronage was highly prized, affording as
it did an opportunity of providing a living for a younger son or needy
relative; or it might be converted into ready cash. Disputes often arose
both as to the possession and as to the ownership of advowsons. Any one
who claimed the absolute right or property as against the holder must do
so by battle or the Grand Assize, exactly as in the case of any other
form of real estate; and the Charter says nothing on this head.[562] On
the other hand, the less vital question of possession might be more
rapidly determined. If a benefice fell vacant, and each of two
proprietors claimed the patronage, the Church could not remain without a
shepherd, for years perhaps, until the question of title was decided.
No; the man in possession was allowed to make the appointment. But who
was the man in possession? Clearly he who had (or whose father had)
presented a nominee to the living when the last vacancy occurred. Even
here there was room for dispute as to the facts. Twelve local men
decided which claimant had actually made the last appointment (the
“darrein presentment”); and the claimant thus preferred had a legal
right to fill up vacancies, remaining in possession until someone proved
a better title by battle or the Grand Assize.
-----
Footnote 562:
Such was the law as late as 1285. The Statute of Westminster II. (13
Edward I. c. 5) authoritatively explains that, when any one had
wrongfully presented a clerk to a vacant church, the real patron could
not recover his advowson except by a writ of right “_quod habet
terminari per duellum vel per magnam assisam_.”
-----
All three forms of the petty assize were merely new applications by
Henry Plantagenet of the royal procedure known in England, since the
Norman Conquest, as _inquisitio_ or _recognitio_.[563]
-----
Footnote 563:
The relations of the assizes to the ancient _inquisitio_ and to the
modern jury are discussed _supra_, pp. 158-163.
-----
III. _The Assizes in 1215._ The petty assizes, when invented by Henry
II., were resented bitterly as innovations; but public opinion, half a
century later, had abundantly vindicated the wisdom of this part of his
reforms. The insurgent barons in 1215 were far from demanding their
abolition; their new grievance was rather that sessions of the justices
of assize were not held often enough. They prescribed the way in which
these assizes, now grown so popular, were to be held, and several points
were specially emphasized. (1) No inquiry of the kind was to be held
elsewhere than in the county where the property was situated. Justice
was in such cases to be brought to every landowner’s door, although
pleas of the Crown might still follow the king, and ordinary common
pleas had to be taken to Westminster. This was intended to save expense
and to meet the convenience of litigants, of those who served on
assizes, and of all concerned.[564] Within two years, however, it was
seen that this provision went too far. It was more convenient to hold
certain inquiries before the Bench at Westminster than in the particular
locality. The reissue of 1217 therefore made two important
modifications: (_a_) All assizes of darrein presentment were thereafter
to be taken before “the Justices of the Bench.” (_b_) Any assize of
novel disseisin or of mort d’ancestor revealing points of special
difficulty, might also be reserved for the decision of the Bench. An
element of uncertainty was thus introduced, of which the Crown took
advantage. In a reported case of the year 1221 it was decided that an
assize of mort d’ancestor should be held in its own county, not at
Westminster.[565]
-----
Footnote 564:
Thus two successive chapters of Magna Carta emphasize two divergent
tendencies: c. 17 had demanded that “common pleas” should all be held
at Westminster, while c. 18 demands that “assizes” should _not_ be
taken there. In both cases, the object was to consult the convenience
of litigants.
Footnote 565:
See Bracton’s _Note Book_, case No. 1478; a case also cited by Coke
(_Second Institute, proem._). If this assize had presented points of
special difficulty it might have been held at Westminster without
violating Magna Carta.
-----
(2) John’s Charter further insists on quarterly circuits of Justices of
Assize; so that litigants in every county of England might have four
opportunities each year of having their disputes amicably settled. Such
excessive frequency was quite uncalled for, and involved unnecessary
expense on the king, and an amount of labour on his officers out of all
proportion to the good effected. The Charter of 1217, accordingly,
provided that a circuit should be made only once a year. In 1285,
however, it was enacted that they might be held three times a year, but
not oftener.[566]
-----
Footnote 566:
13 Edward I. c. 30. Stephen, _History of Criminal Law_, 105–7, gives
further details.
-----
(3) The Charter speaks of the two justices and of the four county
knights, but says nothing of the twelve knights from the immediate
neighbourhood of the disputed property. The omission has no special
significance. Magna Carta had no directions to convey on this matter,
and therefore it kept silence; but the presence of the twelve must have
been presumed, since their verdict formed the essential feature of the
entire procedure.[567] The twelve formed the jury, and the two justices
were the judges, while the chief duty of the four was to select the
twelve. The chapter directed the justices “to hold the assizes along
with the four knights”; but it does not appear whether the latter were
to sit as local assessors of the court, or to serve along with the
twelve recognitors, or to act as a link between the two.
-----
Footnote 567:
See Assize of Northampton, c. 4.
-----
(4) One fact about them was clearly stated, namely, the mode of their
appointment. The four knights were to be “elected” in the county court
(_cum quatuor militibus ... electis per comitatum_), and much emphasis
has been laid on this provision by historians searching for ancient
prototypes of modern institutions. These knights have been warmly
welcomed as county magistrates elected on a more or less extended
suffrage.[568]
-----
Footnote 568:
See, _e.g._ Stubbs, _preface_ to R. Hoveden, IV. xcviii.; Blackstone,
_Great Charter_, xxxvi.; Medley, _Engl. Const. History_, 130.
-----
As the provisions of the reissue of 1217 are more carelessly expressed,
and as in particular they contain no word implying “election,” it has
been assumed that a change in the mode of appointment was intended; that
a step tentatively taken towards representative local government in 1215
was deliberately retraced two years later.[569] “_Electus_” however, in
medieval Latin was a vague word, differing widely from the ideas usually
associated with a modern “election,” and applied indiscriminately to all
methods of appointment or selection, even to the proceedings of officers
engaged by Edward I. to compel the enlistment of the best soldiers
available for his army. The twelve knights were to be “appointed,” not
“elected,” in the county court, and it remains doubtful whether the
sheriff, the magnates, or the body of the suitors, would have secured
the chief share in the appointment. No evidence is forthcoming that any
special importance was attached in 1217 to the use of the word
“_electus_,” and its omission may have been due to inadvertence.
-----
Footnote 569:
Blackstone, _Ibid._, points out these changes in the charter of 1217:
“the leaving indefinite the number of the knights and the justices of
assize, the abolishing of the election of the former, and the reducing
the times of taking assizes to once in every year.”
-----
IV. _An Erroneous View._ Henry Hallam, commenting on this chapter,
seems to have misapprehended the issues at stake. "This clause stood
opposed on the one hand to the encroachments of the king’s court,
which might otherwise, by drawing pleas of land to itself, have
defeated the suitor’s right to a jury from the vicinage: and, on the
other, to those of the feudal aristocracy, who hated any interference
of the Crown to chastise their violations of law, or control their own
jurisdiction."[570] Hallam thus interprets the chapter as denoting a
triumph of the old local popular courts over both the king’s courts
and the courts of the feudal magnates. It denoted no such thing, but
marked in reality a triumph (so far as it went) of the king’s courts
over the tribunals of the feudal magnates—over the courts baron, as
they were afterwards called, the most important of the three courts
into which manorial jurisdictions afterwards split. The assizes, it is
true, were to be taken in the county court, but they were to be taken
there by the king’s justices, not by the sheriff. The county courts by
this time had fallen completely under the domination of the king, and
were to all intents and purposes (and in especial for this purpose)
royal courts. The present chapter is thus conclusive evidence of the
triumph of the king’s justice over all rivals in three important
groups of pleas. Royal justice was the best article in the market,
and, in spite of all defects, deserved the popularity which in this
province it had evidently won, even among the barons whose
jurisdiction it was superseding.
-----
Footnote 570:
See _Middle Ages_, II. 464.
-----
V. _Later History of the Justices of Assize._ Whatever may have been the
exact date when there first went on tour throughout England travelling
judges entitled to the description of “Justices of Assize,” such
circuits, once instituted, have continued to be held at more or less
regular intervals from the beginning of the thirteenth century to the
present day. Their jurisdiction steadily widened under successive kings,
from Henry II. to Edward III.; and they gradually superseded the older
Justices of Eyre, taking over such of their functions as were not
inconsistent with the change that was gradually transforming the
medieval into the modern system of justice.[571] It was the custom for
the Crown to issue new commissions to the justices as they set out upon
each new circuit. Five distinct types of such commissions conferred
jurisdiction over five different departments of judicial business.
-----
Footnote 571:
Cf. Coke, _First Institute_, 293 b.: “As the power of justices of
assises by many acts of parliament and other commissions increased, so
these justices itinerant by little and little vanished away.”
-----
(1) _The commission of assize_ was the earliest of all, authorizing them
to hold petty assizes, but not the grand assize. Of this sufficient has
already been said.
(2) _The commission of nisi prius_ conferred a wider civil jurisdiction,
embracing practically all the non-criminal pleas pending at the time in
the counties which they visited. These powers were originally based on
the terms of the Statute of Westminster II., which became law in
1285,[572] and directed that all civil pleas (under certain exceptions)
might be heard in their own counties. Thenceforward most ordinary suits
might be tried either locally before the justices of assize, or else
before the bench at Westminster. The statute directed, however, that
sheriffs, in summoning jurors to Westminster, were only to do so
conditionally—jurors were to attend there unless already (_nisi prius_)
the justices of assize had come into the county; that is, if the
justices arrived meanwhile in the locality, the jurors and all others
concerned were saved a journey, and the pleas in question were heard on
the spot. The commissions under which the travelling justices heard
locally such civil pleas were therefore known as “Commissions of _nisi
prius_.”
-----
Footnote 572:
13 Edward I. c. 30.
-----
(3) _The commission of gaol delivery_ was, subsequently to 1299,
invariably conferred on the justices of assize, in accordance with a
statute of that year,[573] authorizing them to inspect all gaols and
enquire into all charges against prisoners, and to set free those
unjustly detained. Previously, similar powers had been spasmodically
conferred on separate commissioners, sometimes quite unfit for such a
trust, who had too often abused their authority.
-----
Footnote 573:
27 Edward I. c. 3.
-----
(4) _Commissions of Oyer and Terminer_, issued spasmodically from as
early a date as 1285,[574] to more or less responsible individuals, were
from 1329 onwards conferred exclusively on the justices of assize, who
thus obtained authority[575] “to hear and determine” all criminal pleas
pending in the counties they visited. This, combined with the commission
of gaol delivery, amounted to a full jurisdiction over crimes and
criminals of every kind and degree; just as the commissions of assize
and _nisi prius_ combined gave them full jurisdiction over all civil
pleas.[576]
-----
Footnote 574:
13 Edward I. c. 39; see Stephen, _Hist. Criminal Law_, p. 106.
Footnote 575:
2 Edward III. c. 2. _Ibid._, 110.
Footnote 576:
It is unnecessary to do more than notice the exceptional “commissions
of trailbaston,” supposed to date from the Statute of Rageman (1276),
conferring special powers for the suppression of powerful wrongdoers.
These were soon superseded by the commissions of oyer and terminer.
-----
(5) _The ordinary commission of the peace_ was invariably issued to the
justices of assize from the reign of Edward III., conferring on them
powers similar to those of the local justices of peace in every county
which they might visit.
By a process of the survival of the fittest the justices of assize, from
the small beginnings referred to in John’s Great Charter, thus gradually
gathered to themselves the powers exercised originally by various rival
sets of commissioners; and they have continued for many centuries to
perform the functions conferred by these five different commissions,
forming a characteristic and indispensable part of the judicial system
of England.[577]
-----
Footnote 577:
Mr. W. S. Holdsworth, _Hist. Eng. Law_, 116–123, gives an admirable
and concise account of the justices and their commissions. For fuller
information see Stephen, _Hist. Criminal Law_, I. 97-111.
-----
CHAPTER NINETEEN.
Et si in die comitatus assise predicte capi non possint, tot milites et
libere tenentes remaneant de illis qui interfuerint comitatui die illo,
per quos possint judicia sufficienter fieri, secundum quod negocium
fuerit majus vel minus.
And if any of the said assizes cannot be taken on the day of the
county court, let there remain of the knights and freeholders who were
present at the county court on that day, as many as may be required
for the efficient making of judgments, according as the business be
more or less.
This supplement to the preceding chapter prescribed the course to be
followed when the press of other business had prevented some of the
assizes on the agenda from being disposed of on the court day. The
shiremoot lasted for one day only, and to hold an adjourned session of
all the suitors on the morrow would inflict hardship on those whose
presence was required elsewhere. The framers of the charter were met by
a dilemma in seeking to combine the rapid dispatch of business with the
minimum of inconvenience to those who came to make the court.
The Articles of the Barons had made two definite demands not readily
reconciled; namely that none save jurors and the parties to pending
suits should be summoned to meet the justices of assize on their
quarterly rounds (article 8); and that assizes should be “shortened”
(article 13), which simply meant that the law’s delays should cease.
The terms of Magna Carta, as befitted a carefully-drawn, business-like
document, were more precise. They made it clear that assizes in the
normal case should be held in the county court—a point upon which the
Articles had been silent. This was a salutary provision, since a healthy
publicity accompanied the proceedings of the full shire-moot. Nothing
was said of “shortening” the procedure; and the Charter showed its
appreciation of the fact that there might be more business than could be
got through in one day. If that happened, a compromise must be made
between the claims of litigants wishing their pleas hastened and the
desire of other people to be discharged from further attendance. The
justices were directed to complete their labours on the morrow, but were
forbidden to retain anyone in attendance except the actual parties to
suits and a sufficient number of jurors. Those whom Magna Carta thus
compelled to wait a second day were exactly those whose presence the
Articles had stipulated for upon the first day—not admitting, indeed,
the possibility that a second day might be required. The discrepancy
between the schemes of the two documents might be explained on the
supposition that the device of timing the visit of the justices with the
date of holding the monthly shiremoot was only thought of after the
Articles of the Barons had been sealed.[578]
-----
Footnote 578:
Subsequent practice did not conform to this rule. One _novel
disseisin_, or one _mort d’ancestor_ might be held by itself; and
complaint was made in 1258 that the sheriffs proclaimed in the market
places that all knights and freeholders must assemble for such an
inquest, and when they came not, amerced them at will (_pro voluntate
sua_). See Petition of Barons, c. 19 (Sel. Charters, 385).
-----
The Charter of 1217 made a different provision for the same contingency.
Unfinished assizes need no longer be taken in their own county on the
day following the county court, nor, indeed, on any other day. The
judges received full authority to bring them to a conclusion elsewhere
on their circuit according as it might suit their convenience. This
concession to the justices, taken in connection with the further
provisions of 1217, reserving all darrein presentments, together with
other assizes of any difficulty, for the decision of the bench, shows a
comparative disregard of the convenience of jurors, who might, in the
option of the justices, find themselves compelled either to follow the
assizes from shire to shire, or else to undertake the irksome journey to
Westminster, from which the Charter of 1215 had relieved them.[579]
-----
Footnote 579:
Subsequent legislation vacillated between two policies, actuated at
times by a desire to restrain the discretionary powers of the
justices; and at others by experience of the way in which strict
adherence to inflexible rules was found to inflict hardships upon
litigants. The Statute of Westminster II. (13 Edward I. c. 30)
confirmed the power of the justices to reserve cases of mort
d’ancestor for decision by the bench, and _per contra_ allowed assizes
of darrein presentment (which it associated in this connection with
inquests _quare impedit_) to be taken “in their own counties.” The Act
6 Richard II. c. 5 curtailed the discretionary powers previously
conferred, directing that justices assigned to take assizes and to
deliver gaols should hold sessions in the county towns in which the
shire courts were wont to be held. The Statute 11 Richard II. c. 11
once more relaxed this rule, alleging that it had resulted in the
inconvenience of suitors. Therefore authority was given to the
chancellor, with the advice of the justices, to determine in what
places assizes might be held, notwithstanding the provisions of the
Statute of five years previous.
-----
CHAPTER TWENTY.
Liber homo non amercietur pro parvo delicto, nisi secundum modum
delicti; et pro magno delicto amercietur secundum magnitudinem delicti,
salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et
villanus eodem modo amercietur salvo waynagio suo, si inciderint in
misericordiam nostram; et nulla predictarum misericordiarum ponatur,
nisi per sacramentum proborum hominum de visneto.
A freeman shall not be amerced for a small offence, except in
accordance with the degree of the offence; and for a grave offence he
shall be amerced in accordance with the gravity of his offence, yet
saving always his “contenement”; and a merchant in the same way,
saving his wares; and a villein shall be amerced in the same way,
saving his wainage—if they have fallen into our mercy: and none of the
aforesaid amercements shall be imposed except by the oath of honest
men of the neighbourhood.
This is the first of three consecutive chapters which seek to remedy
grave abuses connected with royal amercements. To understand fully what
these were requires some knowledge, not only of the system of legal
procedure of which they formed part, but also of previous systems.
I. _Three stages of criminal law._ The efforts made in medieval England
to devise machinery for suppressing crime took various forms. Three
periods may be distinguished.
(1) _The bloodfeud._ The earliest method of redressing wrongs of which
any evidence survives was the practice of retaliation, or the bloodfeud.
The injured man, or his heir if he were dead, took the law into his own
hands and exacted satisfaction by the aid of battle-axe or spear. This
right of vengeance, formerly clothed with the entire sanction of the
law, had practically disappeared before the dawn of authentic history in
England; but its previous existence may be confidently inferred from
certain traces which it left on the laws of a later period.
(2) _Fixed money-payments._ At some early, but uncertain, date it had
become customary to accept money in lieu of vengeance. The new practice,
at first exceptional, and applied to cases only of accidental injury,
was gradually extended to all cases in which the wronged individual was
willing to accept a compromise. It was made compulsory on evil-doers to
offer solatium in money for every crime committed, and finally it was
made compulsory also upon the injured man to accept it when offered. At
this stage the right of private revenge had become almost a thing of the
past. It was lawful only after the aggrieved individual had demanded,
and been refused, compensation at the recognized rate.
Various codes formulated intricate rules for determining the amounts
thus payable. Each man had his own money value or _wer_ (from the simple
freeman, reckoned at 200 shillings, up to the prelates and lay nobles,
estimated at much higher figures). These were the legal values at which
each man’s life was appraised. Smaller wrongs could be compensated by
smaller sums in name of damages, known as _bots_: so much for a foot, or
an eye, or a tooth. The king or other feudal lord exacted further
payment from the wrong-doer, under the name of _wites_, which are
sometimes explained as the price charged by the magistrate for enforcing
payment of the _wer_ or _bot_; sometimes as sums due to the community,
on the ground that every evil deed inflicts a wrong on society in
general, as well as upon its victim.
(3) _Amercements._ A third system succeeded. This was of extreme
simplicity and differed widely in many ways from the complicated system
it superseded. It is found in full working order very shortly after the
Norman Conquest, but was still regarded as an innovation at the
accession of Henry I. It is known as the system of amercements. None of
our authorities contains an entirely satisfactory account of how the
change took place, but the following suggestions may be hazarded. The
sums demanded from a wrong-doer, who wished to buy himself back into the
protection of the law, and into the community of well-doers, became
increasingly burdensome. He had to satisfy the claims of the victim’s
family, of the victim’s lord, of the lord within whose territory the
crime had been committed, of the church, mayhap, whose sanctuary had
been invaded, of other lords who could show an interest of any sort, and
finally of the king as lord paramount. It became practically impossible
to buy back the peace once it had been broken. The Crown, however,
stepped in, and offered protection on certain conditions: the culprit
surrendered himself and all that he had to the king, placing himself
“_in misericordiam regis_,” and delivering a tangible pledge (_vadium_)
as evidence and security of the surrender.[580]
-----
Footnote 580:
See Charter of Henry I. c. 8, which however, condemns the whole
practice among the other innovations of the Conqueror and Rufus.
-----
Although in theory the wrongdoer put his property unreservedly at the
king’s disposal, there was a tacit understanding that he should receive
in return, not only a free pardon, but also the restoration of the
balance of his effects, after the king had helped himself to a share.
Such a course, at first optional, would gradually come to be followed
with absolute uniformity. By-and-by, it was assumed that every culprit
wished to avail himself of this means of escape, and thus the words “in
mercy” were written in court records as a matter of course, after the
name of every one convicted of a crime.
It is easy to understand why the Norman kings favoured this system; for
the Crown thus got whatever it chose to demand, while other claimants
got nothing. Gradually, then, the old complicated system of _wers_ and
_bots_ and _wites_ became obsolete and was in time forgotten altogether;
the system of amercements reigned in its stead. Strictly speaking, the
man’s life and limbs and all that he had were at the king’s mercy.[581]
The Crown, however, found that it might defeat its own interests by
excessive greed; and generally contented itself with exacting moderate
sums. Soon, rules of procedure were formulated for its own guidance. The
amounts taken in each case were regulated partly by the wealth of the
offender, and partly by the gravity of the offence. Further, it became a
recognized rule that the amount should be assessed by what was
practically a jury of the culprit’s neighbours; and attempts were also
made to fix a maximum.[582]
-----
Footnote 581:
See _Dialogus de Scaccario_, II. xvi.
Footnote 582:
Cf. Pollock and Maitland, II. 511-4. There were, however, exceptions,
_e.g._ Henry II. would not accept money payments for certain forest
offences. Mutilation was inflicted. See Assize of Woodstock, c. 1, and
contrast Forest Charter of 1217, c. 10.
-----
Thus a sort of tariff grew up, defining the amounts to be exacted for
various offences of most general occurrence. The Crown and its officials
usually respected this in practice, but never formally abandoned the
right to demand more. Such payments were known as “amercements” and were
always technically distinguished from “fines” (or voluntary offerings).
Records, still extant, of the reign of John show us that for very petty
offences, men were constantly placed “in mercy”; for example, for
failure to attend meetings of the hundred or county court; for false or
mistaken verdicts; for petty infringements of the king’s forest rights;
and for a thousand other trivial faults. Every man who raised an action
and failed in it was amerced. It will be readily understood how
important it was that these amercements, forming so tempting a source of
revenue to the exchequer, should not be abused. The Charter of Henry I.
(chapter 8) had promised a remedy, drastic indeed but of a reactionary
and impossible nature. He there agreed to abolish altogether the system
of amercements (then of recent introduction) and to revert to the
earlier Anglo-Saxon system of bots and wites, already discussed. This
promise, like others, of Henry I. was made only to be broken.[583]
-----
Footnote 583:
Cf. Pollock and Maitland (II. 512), who describe Henry’s promise as “a
return to the old Anglo-Saxon system of pre-appointed wites.” In order
to avoid unnecessary confusion, no mention has been made in the
account given above of a classification of amercements into three
degrees, which increases the obscurity surrounding their origin. The
_Dialogus de Scaccario_, II. xvi., tells how (_a_) for grave crimes,
the culprit’s life and limbs were at the king’s mercy as well as his
property; (_b_) for less important offences, his lands were forfeited,
but his person was safe; while (_c_) for minor faults, his moveable
effects only were at the king’s disposal. In the last case, the
offender was “_in misericordia regis de pecunia sua_.” Thus to be “in
mercy” did not always mean the same thing. Further, a villein or
dependent freeman on a manor might fall in the “mercy” of his lord, as
well as of the king. The records of manorial courts are full of petty
amercements for petty transgressions of the customs of the manor.
II. _Magna Carta and Amercements._ All classes had an interest in this
subject, since no one could expect to pass through life (perhaps hardly
through a single year) without being subjected to one or more
amercements. Three chapters of Magna Carta accordingly are occupied with
remedies. Chapter 20 seeks to protect the ordinary layman; chapter 21,
the barons; and chapter 22, the clergy—thus vaguely anticipating the
conception of three estates of the realm;—commons, nobles and clergy.
The “third estate” is further analysed for the purposes at least of this
clause, into three subdivisions—the freeman, the villein, and the
merchant.[584]
-----
Footnote 584:
Even Coke (_Second Institute_, p. 27) has to confess that for the
purposes of this chapter at least he must abandon the attempt made
elsewhere (_Ibid._, p. 4, and p. 45) to bring the villeins into the
class of freemen. Under the plea that the villein was relatively free
as against third parties except his lord, he claimed for him all the
benefits secured by anticipation in chapter 1 of the Charter, and he
made a special application of the same doctrine in connection with the
right to _judicium parium_ secured to all freemen by chapter 39
(_q.v._). Here, however, he is forced to admit the distinction between
freeman and villein, the former term being, for the purpose of
amercements, virtually identified with “freeholder.”
-----
(1) _The amercement of the freeholder._ The great object of the reforms
here promised was to eliminate the arbitrary element; the Crown must
conform to its own customary rules. With this object, various safeguards
were devised to regulate the amercing of freemen. (_a_) For a petty
offence, only a petty sum could be taken. This was nothing new: the
records of John’s reign show that, both before and after 1215, very
small amounts were often taken: three-pence was a common sum. (_b_) For
grave offences, a larger sum might be assessed, but not out of
proportion to the offence. (_c_) In no case must the offender be pushed
absolutely to the wall. His means of livelihood must be saved to him.
Even if all other effects of the defaulting freeman had to be sold off
to pay the amount assessed, he was to retain his ancestral freehold (or
“contenement,” a word to be afterwards discussed). He might, however,
find himself liable for a large sum which he had to pay off by
instalments during many years. (_d_) Another clause provided machinery
for giving effect to all these rules. The amount of the amercement must
be fixed, not arbitrarily by the Crown, but by impartial assessors, “by
the oath of honest men of the neighbourhood.”
It seems probable that all these provisions were declaratory of existing
usage, that is of the usage of John’s reign; but, apparently, a
different procedure and one less favourable to wrong-doers had been in
vogue, so recently as the reign of Henry II. Amercements had then been
assessed, not by local jurors but, by the barons of the exchequer, who
might, however, where arrears were still due, revise their own findings
of previous years.[585]
-----
Footnote 585:
See note by editors of _Dialogus de Scaccario_, p. 207.
-----
The Pipe Roll of the fourteenth year of Henry II.[586] shows how a
certain priest, who in this respect stood on precisely the same footing
as a layman, had been placed “_in misericordiam_” of 100 marks by
William fitz John, one of the king’s justices, but how that sum was
afterwards reduced to 40 marks “_per sacramentum vicinorum suorum_.” It
seems a safe inference that, on the priest pleading poverty, the
question of his ability to pay was referred to local recognitors with
the result stated. This priest was subsequently pardoned altogether
“because of his poverty.” His case illustrates how an important change
was gradually effected. Local jurors first assisted, and then
superseded, the barons of exchequer in assessing the amounts payable as
amercements. This important boon, which transferred the decision from
unsympathetic Crown officials to the defaulter’s own neighbours, was
confirmed by Magna Carta to all clergy and to all members of the third
estate. It will be shown, in connection with chapter 21, how earls and
barons lost a similar privilege.[587]
-----
Footnote 586:
Madox, I. 527.
Footnote 587:
Reeves, _History of English Law_, I. 248 (Third Edition) says “Upon
this chapter was afterwards framed the writ _de moderata
misericordia_, for giving remedy to a party who was excessively
amerced.”
-----
(2) _The amercement of the merchant._ The provisions in favour of
freeholders were extended to members of the trading classes. One
modification, however, had to be made. In the normal case, the
merchant’s means of livelihood were his wares, not his freehold. These
wares, accordingly, were saved to him, not his “contenement” (if he had
one). The traders of many favoured towns, however, had already gained
special privileges in this as in other matters, and these had received a
general confirmation from chapter 13 of the Great Charter. Some boroughs
had anticipated Magna Carta by obtaining in their own special charters
either a definition of the maximum amercement exigible, or in some
cases, by a definition of the amercing body. Thus, John’s Charter to
Dunwich of 29th June, 1200,[588] provides that the burgesses shall only
be amerced by six men from within the borough, and six men from without.
The capital had special privileges: in his Charter to the Londoners,
Henry I. had promised that no citizen _in misericordia pecuniae_ should
pay a higher sum than 100s. (the amount of his _wer_).[589] This was
confirmed in the Charter of Henry II., who declared “that none shall be
adjudged for amercements of money, but according to the law of the city,
which they had in the time of King Henry, my grandfather.”[590] John’s
Charter to London of 17th June, 1199, also specially referred to
this;[591] and the general confirmation of customs contained in chapter
13 of Magna Carta would further strengthen it. In all probability, it
covered trivial offences only (such as placed the offender in the king’s
hands _de misericordia pecuniae_). The present chapter is wider in its
scope, applying to great offences as well as to small ones, and
embracing merchants everywhere, not merely the burgesses of chartered
towns.
-----
Footnote 588:
_Rotuli Chartarum_, 51.
Footnote 589:
See _Select Charters_, 108.
Footnote 590:
See Birch, _Historical Charters of London_, p. 5.
Footnote 591:
_Ibid._, p. 11.
-----
(3) _The amercement of the villein._ The early history of villeins as a
class is enveloped in the mists which still surround the debateable
question of the rise of the English manor. Notwithstanding the brilliant
efforts of Mr. Frederic Seebohm[592] to find the origin of villeinage in
the status of the serfs who worked for Roman masters upon British farms
or _villae_ long before the Teutonic immigrations began, an older theory
still holds the field, namely, that the abject villeins of Norman days
were the descendants of the free-born “ceorls” of Anglo-Saxon times. On
this theory—the orthodox one, and rightly so, since it is supported by
the greater weight of evidence—most of England was once cultivated by
free Anglo-Saxon peasant proprietors originally grouped in little
societies each of which formed an isolated village. These free villagers
were known as “ceorls,” to distinguish them from the gentry or nobility
called “eorls,” who enjoyed social consideration but (so it is usually
argued) no unfair political advantages on the score of their noble
blood. The “ceorls” were slowly sinking from their originally free
estate during several centuries prior to 1066: but the process of their
degradation was completed rapidly and roughly by the harsh measures of
the Norman conquerors. The bulk of the once free peasantry were crushed
down into the dependent villeins of the eleventh and twelfth centuries.
-----
Footnote 592:
See _English Village Community_, _passim_.
-----
Whichever theory may be the correct one, the position, economic, legal,
and political, of the villeins in the thirteenth century has at the
present day been ascertained with accuracy and certainty. Economically
they were reckoned part of the necessary equipment of the manor of their
lord, whose fields they had to cultivate as a condition of being left in
possession of acres which had once been, in a more real sense, their
own. The services to be exacted by the owner of the manor, at first
vague and undefined, were gradually specified and limited. They varied
from century to century, from district to district, and even from manor
to manor; but at best the life of the villein was, as a contemporary
writer has described it, burdensome and wretched (_graviter et
miserabiliter_). After his manifold obligations were discharged, little
time was left him for the ploughing and reaping of his own small
holding. The normal villein possessed his portion of land, of a virgate
or half virgate in extent (thirty or fifteen scattered acres) under a
tenure known as _villenagium_, sharply distinguished from the
freeholder’s tenures, whether of chivalry, serjeanty, or socage. He was
a dependent dweller on a manor which he dared not quit without his
master’s leave. It is true that he had certain rights of a proprietary
nature in the acres he claimed as his own; yet these were determined,
not by the common law of England, but by “the custom of the manor,” or
virtually at the will of the lord. These rights, such as they were,
could not be pled elsewhere than before the court customary of that
manor over which the lord’s steward presided with powers wide and
undefined. Legally speaking, the villein was a tenant-at-will whom the
lord could eject without the interference of any higher tribunal than
his own. Politically, however, the position of the villein was peculiar.
While allowed to enjoy none of the privileges, he was yet expected to
perform some of the duties, of the freeman. He attended at the shire and
hundred courts, acted on juries, and performed other public functions,
thus suffering still further encroachments on the scanty portion of time
which he might call his own, but preserving for a brighter day some
vague tradition of his earlier liberty. The fact that such public duties
were performed by the villein, lends strong support to those who argue
in favour of his descent from the old “ceorl” who enjoyed all the
rights, as well as performed all the obligations, of the free. Such
duties would never have been required from a race of hereditary slaves;
but it is easy to understand how men originally free might be gradually
robbed of their legal rights, while left to perform legal duties of a
kind so useful to society and to their masters.
The words of this chapter of Magna Carta undoubtedly extend some measure
of protection to villeins. Two questions, however, may be asked:—What
measure, and from what motive? Answers are called for, because of the
importance attached to this clause by writers who claim for Magna Carta
a popular or democratic basis. One thing is clear: the villeins were
protected from the abuse of only such amercements as John himself might
inflict, not from the amercements of their manorial lords; for the words
used are “_si inciderint in misericordiam nostram_.” A villein in the
king’s mercy shall enjoy the same consideration as the freeholder or the
merchant enjoys in similar plight—his “wainage,” that is his plough with
its accoutrements, including possibly the oxen, being saved to him. What
is the motive of these restrictions? It is usually supposed to have been
clemency, the humane desire not to reduce the poor wretch to absolute
beggary. It is possible, however, to imagine an entirely different
motive; the villein was the property of his lord, and the king must
respect the vested interests of others. That he might do what he pleased
with his own property, his demesne villeins, seems clear from a passage
usually neglected by commentators, namely, chapter 16 of the reissue of
1217. Four important words limiting the restraints on the king’s power
are there introduced—_villanus alterius quam noster_. The king was not
to inflict absolutely crushing amercements on any villeins “_other than
his own_,” thus leaving the villeins on ancient demesne unreservedly in
his power.[593]
-----
Footnote 593:
Thomson, _Magna Charta_, p. 202, seems completely to have
misunderstood this 16th chapter of the reissue of 1217, construing the
four interpolated words in a sense the Latin will not bear, viz.:—“A
villein, _although he belonged to another_.” The view here taken of
the motive for protecting villeins is strengthened by the use of the
peculiar phrase, “_vastum hominum_” in chapter 4 (_q.v._).
-----
It must not be thought, however, that the position of the king’s
villeins—“tenants on ancient demesne,” as they were technically
called—was worse than that of the villeins of an ordinary unroyal manor.
On the contrary, it has been clearly shown[594] that the king’s peasants
enjoyed privileges denied to the peasants of other lords. Magna
Carta—that "bulwark of the people’s rights"—thus left the great bulk of
the rural population of England completely unprotected from the tyranny
of their lords in amercements as in other things. The king must not take
so much from any lord’s villeins as to destroy their usefulness as
manorial chattels; that was all.[595]
-----
Footnote 594:
Notably by Professor Vinogradoff in his _Villeinage in England_,
_passim_.
Footnote 595:
The wide gulf which separated the villein from the freeman in this
matter of amercements is shown by an entry on the _Pipe Roll_ of 16
Henry II. (cited Madox, I. 545) _Herbertus Faber debet j marcam pro
falso clamore quem fecit ut liber cum sit rusticus._ A villein might
be heavily amerced for merely claiming to be free. It is peculiarly
difficult to reconcile any theory of the villein’s freedom with the
doctrine of Glanvill, V. c. 5, who denies to everyone who had been
once a villein the right to “wage his law,” even after emancipation,
where any third party’s interests might thereby be prejudiced.
-----
(4) _The difference between fines and amercements._ In the thirteenth
century these terms were sharply contrasted. “Amercement” was applied to
such sums only as were imposed in punishment of misdeeds, the
law-breaker amending his fault in this way. He had no option of
refusing, and no voice in fixing the amount assessed upon him. “Fine,”
on the contrary, was used for voluntary offerings made to the king with
the object of procuring some concession in return—to obtain some favour
or to escape some punishment previously decreed. Here the initiative
rested with the individual, who suggested the amount to be paid, and
was, indeed, under no legal obligation to make any offer at all. This
distinction between fines and amercements, absolute as it was in theory,
could readily be obliterated in practice. The spirit of the restriction
placed by this chapter and by the common law upon the king’s prerogative
of inflicting amercements could usually be evaded by calling the sums
exacted “fines.” For example, the Crown might imprison its victims for
an indefinite period, and then graciously allow them to offer large
payments to escape death by fever or starvation in a noisome gaol. The
letter of Magna Carta was in this way strictly observed, since the
prisoner was nominally as free to abstain entirely from offering as was
the king to reject all offers until the figure was sufficient to tempt
his greed. Enormous _fines_ might thus be taken; while royal officials
were strictly forbidden to inflict arbitrary _amercements_.
With the gradual elimination of the voluntary element the word “fine”
came to bear its modern meaning, while “amercement” dropped out of
ordinary use.[596]
-----
Footnote 596:
Cf. _infra_, c. 55, which supplements this chapter, providing for the
cancellation of all amercements unjustly inflicted in the past,
whereas this chapter seeks to prevent the infliction of new ones in
the future.
-----
(5) _Contenement._ This word, which occurs in Glanvill[597] and in
Bracton,[598] and also (in its French form) in the Statute of
Westminster, I.,[599] as well as in Magna Carta, has formed a text for
many laboured and unsatisfactory explanations from the days of Sir
Edward Coke[600] to our own.
-----
Footnote 597:
IX. 8.
Footnote 598:
III. folio 116 b.
Footnote 599:
3 Edward I. c. 6.
Footnote 600:
_Second Institute_, p. 27.
-----
There seems to be no real obscurity, however, since it is clearly a
compound of "tenement"—a word well known as an exact technical term of
feudal conveyancing—and the prefix “con.” A “tenement” is precisely what
a freeman might be expected to have, namely, a freehold estate of his
own. The “con” merely intensifies the meaning, emphasizing the closeness
of the connection between the freeman and his land. Any other tenements
he had might be taken away, without inflicting extreme hardship; but to
take from him his "contenement"—his ancestral lands—would leave him poor
indeed.
The word occurs, not only in Glanvill and Bracton, but also in several
entries on the Exchequer Rolls of Henry III. and Edward I., collected by
Madox,[601] and by him collated with other entries which throw light on
the way in which a “contenement” might be saved to the man amerced. Thus
in 40 Henry III. the officials of the exchequer, after discussing the
case of an offender who had failed to pay an amercement of 40 marks,
ordered inquiry to be made, “how much he was able to pay the king _per
annum_, saving his own sustenance and that of his wife and children,” an
excerpt which illustrates also the more humane side of exchequer
procedure. In 14 Edward I. again, the officials of that day, when
ferreting out arrears, found that certain poor men of the village of
Doddington had not paid their amercements in full. An inquiry was set on
foot, and the barons of exchequer were ordered to fix the dates at which
the various debtors should discharge their debts (evidently an
arrangement for payment by instalments) “_salvo contenemento suo_.”[602]
-----
Footnote 601:
See II. 208-9.
Footnote 602:
See Madox, _Ibid._
-----
These illustrations of the actual procedure of later reigns, in agreeing
so closely with the rules laid down by the Great Charter, show how a
man’s contenement might be saved to him without any loss to the Crown.
Magna Carta apparently desires that time should be granted in which to
pay up debts by degrees. Meanwhile, the amerced man was not forced to
sell such holding (or wares, or wainage) as was necessary to maintain
him with his wife and family. Leniency, in the long run, might prove
best for all concerned, the Crown included.
CHAPTER TWENTY-ONE.
Comites et barones non amercientur nisi per pares suos, et non nisi
secundum modum delicti.
Earls and barons shall not be amerced except through their peers, and
only in accordance with the degree of the offence.
_The amercement of earls and barons._ The _barones majores_, as matter
of course, intended to secure for themselves privileges at least equal
with those of the ordinary freeholder. In assessing their amercements,
both the gravity of the offence and their ability to pay (as measured by
their property) would naturally be considered. Magna Carta mentions only
the former criterion—it was, indeed, unnecessary to call the king’s
attention to the fact that more could be taken from their wealth than
from the ordinary freeholder’s comparative poverty. The saving of a
“contenement” to them would also naturally be assumed. One vital
difference, however, was distinctly stated. The amercing body was not to
be a jury of good men of the locality; but a jury of their “peers.”[603]
The barons here asked only what was their undoubted right—to have the
amount of their forfeits determined neither by their feudal inferiors
(freeholders of their own or of other mesne lords) nor yet by Crown
officials, but by magnates of their own position and with interests in
common. This was not an innovation. Mr. Pike[604] has shown how, in
Richard’s reign, barons were not amerced with the common herd: at an
eyre held at Hertford in 1198-9, a list of those amerced was drawn up
and definite sums were entered after each name, with two exceptions,
Gerald de Furnivall and Reginald de Argenton, each of whom was reserved
for special treatment “as a baron.” A local jury had evidently on the
spot assessed the amercements of villeins and ordinary freeholders (in
exact accordance with the rules of chapter 20); but the following entry
was made opposite each of the two barons’ names “to be amerced _at the
Exchequer_ for a disseisin.” The Pipe Roll of John’s first year shows
that this was subsequently done.[605]
-----
Footnote 603:
Cf. _infra_, under c. 39.
Footnote 604:
_House of Lords_, 255.
Footnote 605:
Cited by Pike, _Ibid._
-----
Magna Carta, then, had good precedents for insisting that barons ought
not to be amerced by the justices of eyre in the course of their
circuits; but what exactly did it mean by demanding amercement "by their
peers"? Did this merely mean that a few peers, a few Crown tenants,
should be present at the exchequer when they were amerced; or was it a
demand for the assembling, for that purpose, of a full _commune
concilium_ like that defined in chapter 14?
The Crown, in the following reign, placed its own interpretation on
these words, and succeeded in turning into a special disadvantage what
the barons had insisted on as a privilege. Bracton[606] repeats this
chapter verbatim, but adds what seems to be an official gloss,
qualifying it by these words: “_et hoc per barones de scaccario vel
coram ipso rege_.” Barons, under this interpretation of Magna Carta, had
their amercements assessed neither by the whole body of “their peers” in
a full council, nor yet by a select jury of those peers empannelled in
the exchequer for that purpose, but by royal officials, the barons of
exchequer, or the justices of King’s Bench. Thus the words of the
Charter were perverted by the ingenuity of the Crown lawyers to
authorize precisely what they had been originally intended to
forbid.[607]
-----
Footnote 606:
III., folio 116 b.
Footnote 607:
Pike, _House of Lords_, 256–7, shows how barons were assessed
sometimes—(_a_) before the barons of exchequer; or (_b_) before the
full King’s Council; or (_c_) at a later date, even before the
justices of Common Pleas. They were never assessed, however, before
the justices on circuit. Is it possible that one reason why the name
_Barones Scaccarii_ was retained as the official title of the four
justices who presided over the Court of Exchequer was the Crown’s wish
to preserve the fiction that these official “_barones_” were really
peers of the holders of "baronies"?
-----
In the fourteenth century several cases are recorded, in the course of
which defaulters, in the hope of escaping with smaller payments,
protested against being reckoned as barons. For example, a certain
Thomas de Furnivall in the nineteenth year of Edward II. complained that
he had been amerced as a baron “to his great damage, and against the law
and custom of the realm,” whereas he really held nothing by barony. The
king directed the Treasurer and Barons of the Exchequer “that if it
appeared to them that Thomas was not a baron, nor did hold his land by
barony, then they should discharge him of the said imposed amercement;
provided that Thomas should be amerced according to the tenor of the
great Charter of Liberties,”[608] that is to say, as a simple freeholder
according to the provisions of chapter 20. It is clear that Thomas de
Furnivall was confident that a local jury would amerce him at a lower
figure than that fixed by the exchequer barons. A few years earlier the
Abbot of Croyland had made a similar plea, but without success.[609]
-----
Footnote 608:
Madox, I. 535-8.
Footnote 609:
See Madox, _Ibid._, and also Pike, _House of Lords_, 257.
-----
At a later date barons and earls were successful in securing by another
expedient some measure of immunity from excessive exactions. They had
established, prior to the first year of Henry VI., a recognized scale of
amercements with which the Crown was expected, in ordinary
circumstances, to content itself.[610] In the reign of Edward IV. a duke
was normally amerced at £10, and an earl or a bishop at 100s.[611]
-----
Footnote 610:
See Pike, _Ibid._
Footnote 611:
Madox, _Baronia Anglica_, 106, seems to view these sums as fixing a
minimum, not a maximum. “If a baron was to be amerced for a small
trespass, his amercement was wont to be 100s. at the least; he might
be amerced at more, not at less. This, I think, was the meaning of the
term _amerciater ut baro_.” He adds that a commoner for a similar
trespass would get off with 10s., 20s., or 40s.
-----
CHAPTER TWENTY-TWO.
Nullus clericus amercietur de laico tenemento suo, nisi secundum modum
aliorum predictorum, et non secundum quantitatem beneficii sui
ecclesiastici.
A clerk shall not be amerced in respect of his lay holding except
after the manner of the others aforesaid; further, he shall not be
amerced in accordance with the extent of his church benefice.
_Amercement of the clergy._ The churchman was to receive the same
favourable treatment as the layman in all respects, and to enjoy one
additional privilege. In proportioning the amercement to the extent of
his wealth, no account was to be taken of the value of his “church
benefice.” A sharp distinction is here drawn between _laicum tenementum_
(or, as the 10th of the Articles of the Barons expressed it, _laicum
feodum_) and _beneficium ecclesiasticum_. This antithesis between “lay
fee” and "alms"—that is, between lands held by barony, knight’s service,
or any other secular tenure on the one hand, and lands held by
frankalmoin on the other—was a familiar one in the Middle Ages.[612]
-----
Footnote 612:
See _supra_ 66-70 and cf. Constitutions of Clarendon (c. 9), which
distinguish _tenementum pertinens ad eleemosinam_ from _ad laicum
feudum_.
-----
Only the former was to be reckoned in fixing the defaulting clerk’s
amercement. This would leave the bishop or abbot exposed to a higher
payment proportionate to his barony, while exempting the parish priest
from any assessment on account of his rectory and glebe. It would almost
seem that in the normal case the incumbent with no wealth but the
produce and rents of his benefice would thus escape from amercement
altogether; yet, if he had no lay tenement, he might still have
chattels, or might at least pay instalments from the annual increase of
his crops. This exemption in favour of those who held lands in “alms”
may have proceeded from several possible motives. Frankalmoin enjoyed
many privileges, including, in the reign of Henry II., complete immunity
from the jurisdiction of all secular courts.[613] Perhaps the Exchequer
did not dare to levy contributions upon such lands. In any view, it
would have been manifestly unjust to treat the clerical incumbent as
though he were the owner in fee simple of the church’s patrimony.
-----
Footnote 613:
See Constitutions of Clarendon, _Ibid._ The Crown soon withdrew this
immunity.
-----
The word “clerk” was a wide one, including not only the ordinary parish
priests (whether rectors or vicars) with the deacons and those who had
taken minor orders, but also the monks and canons regular (whose vows of
poverty, however, left no loophole for the legal retention by them of
private property which could require protection). It included also the
higher clergy, great prelates, bishops and abbots, whose status was,
however, complicated by their ownership of Crown lands. Their character
of “baron” was often more prominent in constitutional questions than
that of “clerk in holy orders.” Their treatment in the matter of
amercements is a case in point.[614] There could have been no doubt from
the first that a bishop “in mercy” must submit to have his barony taken
into consideration in fixing his amercement. It would almost seem that
the great prelates were not intended to benefit in any way from this
exemption. Such is the suggestion conveyed by a slight alteration
effected in the Charter of 1217, which substitutes for the wider
“_clericus_” of the text the more restricted expression "_ecclesiastica
persona_"—words which in the thirteenth century denoted the parish
clergy, and were used much as is the word “parson” in colloquial speech
at the present day.
-----
Footnote 614:
Cf. Pike, _House of Lords_, 254.
-----
A certain looseness in the arrangement of the Latin words of this
chapter, as it originally stood in 1215, seems to have suggested the
need for improvement. Alterations, apparently of a verbal nature, were
made with some evidences of care in Henry’s reissues. The “_de laico
tenemento_” of 1215 was omitted altogether in 1216; but a reference to
the “lay fees” of the clergy was reintroduced in 1217, subject to a
complete reconstruction of the sentence to make it read smoothly, and so
avoid the possibility of misconception.[615]
-----
Footnote 615:
In its final form it reads: “_Nulla ecclesiastica persona amercietur
secundum quantitatem beneficii sui ecclesiastici, sed secundum
tenementum suum et secundum quantitatem delicti._” Dr. Stubbs, _Sel.
Charters_ 345, by a curious oversight, reads for “_tenementum_” the
compound “_contenementum_,” for which there seems to be no authority.
-----
CHAPTER TWENTY-THREE.
Nec villa nec homo distringatur facere pontes ad riparias, nisi qui ab
antiquo et de jure facere debent.
No community or individual[616] shall be compelled to make bridges at
river banks, except those who from of old were legally bound to do so.
The object of this chapter is obvious; to compel the king to desist
from his practice of illegally increasing the extent of an
obligation—admitted as perfectly legal within the limits defined by
ancient usage—the obligation to keep in good repair all existing
bridges over rivers. John might continue to exact what his ancestors
had exacted; but nothing more. So much lies on the surface of the
Charter, which explains, however, neither the origin of the obligation
nor the reasons which made John keen to enforce it.
I. _Origin of the Obligation to make Bridges._ The Norman kings seem to
have based their claim to compel their subjects to maintain such bridges
as were necessary, upon an ancient threefold obligation,[616] (known as
the _trinoda necessitas_) incumbent on all freemen during the
Anglo-Saxon period. Three duties were[617] required of all the men of
England in the interests of the commonweal: attendance on the fyrd or
local militia; the making of roads, so necessary for military purposes;
and the repairing of bridges and fortifications. Gradually, as feudal
tendencies prevailed, the obligation to construct bridges ceased to be a
personal burden upon all freemen, and became a territorial burden
attached to certain manors or freeholders. In other words, it was made a
part of the services incidental to the feudal tenure of particular
estates. The present chapter, in forbidding the illegal extension of
this burden to communities or individuals other than those who rendered
it as part of the services due for their lands, seems to be only a
particular application of the general principle enunciated in chapter
16. The evil complained of, however, required special treatment because
of the prominence into which it had been forced by John, who had abused
powers vested in his ancestors for national purposes, in order to
further his own selfish pleasures, in a manner so well known to his
contemporaries as not to require specification in Magna Carta.
-----
-----
Footnote 616:
The word “_villa_,” used at first as synonymous with “manor,” came to
be freely applied not only to all villages, but also to chartered
towns. Even London was described as a _villa_ in formal writs.
“_Homo_,” though often loosely used, was the word naturally applied to
a feudal tenant. The version given by Coke (_Second Institute_, p. 30)
reads “_liber homo_,” which is also the reading of one MS. of the
_Inspeximus_ of 1297 (25 Edward I.). See _Statutes of the Realm_, I.
114.
Footnote 617:
See _Rot. Claus._, 19 Henry III., cited by Moore, _History and Law of
Fisheries_, p. 8.
-----
II. _The King’s interest in the Repair of Bridges._ John’s motives for
making an oppressive use of this prerogative must be sought in a
somewhat unexpected quarter, in the king’s rights of falconry, and in
his frequent need for ready means of crossing rivers in pursuit of his
valuable birds of prey. Whenever John proposed to ride a-fowling, with
his hawk upon his wrist, he issued letters compelling the whole
country-side to bestir themselves in the repair of bridges in every
district which his capricious pleasure might lead him to visit. Several
such writs of the reign of Henry III. are still extant. The exact words
of these vary somewhat, but a comparison of their terms leaves no room
for doubt either as to the nature of the commands they conveyed or the
reasons for issuing them. Addressed to the sheriffs of such counties as
the king was likely to visit, at a convenient interval beforehand, these
letters gave instructions that all necessary steps should be taken in
preparation for the king’s hawking. The writs contained two commands, an
order for the repair of bridges, and a prohibition against the taking of
birds before the king had enjoyed his sport. Both points are well
brought out in a Letter Close of Henry III., dated 26th December, 1234,
which directed "all bridges on the rivers Avon, Test, and Itchen to be
repaired as was wont in the time of King John, so that when the lord
King may come to these parts, free transit shall lie open to him for
“riviating” (_ad riviandum_) upon the said rivers." The writ then
proceeded to command the sheriff to issue a general prohibition against
any one attempting “to riviate” along the river banks, previous to the
coming of the king (“_ne aliquis riviare praesumat per riparias illas
antequam rex illic venerit_”).[618]
-----
Footnote 618:
See _Rot. Claus._ 19 Henry III., cited in Moore, _History and Law of
Fisheries_, p. 8.
-----
The Latin verb, for which “to riviate” has been coined as an English
equivalent, has long been the subject of misconception; but conclusive
evidence has recently been adduced to prove that it referred to the
medieval sport of fowling, that is to the taking of wild birds in sport
by means of hawks and falcons.[619]
-----
Footnote 619:
See Moore, _Ibid._, 8–16. Two links in the chain of evidence are
worthy of emphasis:—(_a_) Writs of 13th November and 1st December,
1234, order repair of bridges for the transit of the king “along with
his birds” (_cum avibus suis_). (_b_) A writ of 28th October, 1283,
gives _aves capere_ as the equivalent of _riviare_. This writ contains
a licence to the Earl of Hereford “during the present winter season to
_riviate_ and to take river-fowl of this nature (_riviare et aves
ripariarum hujusmodi capere_) throughout the rivers Lowe and Frome
which are in defence (_in defenso_).”
-----
These writs prove that the Crown claimed and exercised a monopoly of, or
at least a preferential right to, this form of sport along the banks of
certain rivers; and these “preserved” rivers were accordingly said to be
placed “in defence” (_in defenso_), a phrase which occurs in many of the
writs referred to, as well as in a later chapter of Magna Carta.[620]
-----
Footnote 620:
_I.e._ c. 47 (_q.v._). Any district or object over which the king or a
private individual had sole rights of any kind to the exclusion of the
public might apparently be said to be placed _in defenso_ in regard to
the object of such rights. In this case, the word “riviation” makes
the object plain.
Two distinct hardships were thus imposed on the nation by the king’s
exercise of his rights of falconry, one negative and the other positive.
In the interval between the king’s intimation and his arrival at the
indicated rivers, the sport of all other people was interfered with,
while the obligation to reconstruct otherwise useless bridges was a more
material burden on every village and individual exposed to it. A wise
king would be careful to use such rights so as to inflict on his
subjects a minimum of hardship. John, however, knew no moderation,
placing “in defence” not merely a few banks at a time, but many rivers
indiscriminately, including those which had never been so treated in his
father’s day, and demanding that all bridges everywhere should be
repaired, with the object, not so much of indulging a genuine love of
sport, as of inflicting heavy amercements on those who neglected prompt
obedience to his commands. Great consternation was aroused by John’s
action at Bristol in 1209 when he prohibited the taking of birds
throughout the entire realm of England.[621]
-----
Footnote 621:
R. Wendover, II. 49 (R.S.), “_Ibi capturam avium per totam Angliam
interdixit._”
-----
Both of these grievances, thus augmented by the policy of King John,
were redressed by Magna Carta, though in different clauses. In the
present chapter John promised not to impose the burden of repairing
bridges on those from whom it was not legally due.[622] Chapter 47, in
which he agreed to withdraw his interdict from all rivers which he had
placed “in defence” during his own reign, and also to disafforest all
forests of his own creation, was entirely omitted in the Charter of
1216;[623] but in 1217 it reappeared in a new position and expressed in
different words. The provision of the original chapter 47, relating to
forests, was relegated to the _Carta de Foresta_, then granted for the
first time, and the other part of that chapter, relating to falconry,
was naturally enough joined to a clause which redressed another
grievance growing from the same root. Chapter 19 of Henry III.’s
Charter, in its final form, repeats word for word the terms of the
present chapter of John, while in chapter 20 Henry proceeds to declare
“that no river shall in future be placed in defence except such as were
in defence in the time of King Henry, our grandfather, throughout the
same places and during the same periods as they were wont in his day.”
-----
Footnote 622:
Article 11 of the Barons had demanded that no _villa_ should be
_amerced_ for failure to make such illegal repairs, thus illustrating
at once John’s policy, and the point of connection between this
provision and the immediately preceding chapters which dealt with
amercements.
Footnote 623:
It was, however, included among the subjects reserved for further
consideration in “the respiting clause” (c. 42 of 1216) under the
words “_de ripariis et earum custodibus_.” Cf. _supra_, 169.
-----
This express prohibition seems to have prevented the Crown from
extending its prerogatives any further in this direction. Yet Henry III.
had ample opportunities of harassing his subjects by an inconsiderate
use of the rights still left to him. By issuing wholesale orders
affecting every preserved river which he had an admitted right to put
“in defence,” he might inflict widespread and wanton hardships. In many
cases dubiety existed on the question of fact as to what banks had
actually been “defended” by Henry II., and a vague general command which
named no special rivers left in cruel uncertainty the district to be
visited. Henry III., accordingly, either yielding to pressure or in
return for grants of money, made important concessions. After the year
1241, he invariably specified the particular river along whose banks he
intended to sport, and sometimes even announced the exact date at which
he expected to arrive. As no writs appear subsequent to 1247, it is
possible that he was induced to abstain altogether from the exercise of
a right which inflicted hardships on the people out of all proportion to
the benefits conferred on the king.[624]
-----
Footnote 624:
Moore, _Ibid._, 9.
-----
The Crown, however, had not renounced its prerogatives, and several
writs still exist to show that Edward I. occasionally allowed his great
nobles to share in the royal sport. Licences to this effect were granted
in 1283 to the Earl of Hereford and to Reginald fitz Peter, and in the
following year to the Earl of Lincoln. On 6th October, 1373, Edward III.
by his writ commanded the sheriff of Oxfordshire to declare that all
bridges should be repaired and all fords marked out with stakes for the
crossing of the king “with his falcons” during the approaching winter
season.[625]
-----
Footnote 625:
Moore, _Ibid._, 12.
-----
III. _Erroneous Interpretations._ There is nothing astonishing in the
fact that a pastime so passionately followed as falconry was in the
Middle Ages, should have left its traces on two chapters of Magna Carta,
the full import of which has not hitherto been appreciated by
commentators, partly from failure to bring both of them together, but
chiefly because of the too precipitate assumption that the words _ad
riviandum_ and _in defenso_, occurring in writs and charters, referred
to _fishing_ rather than to fowling.[626]
-----
Footnote 626:
The _Mirror of Justices_ is cited as first suggesting this. See Moore,
_Ibid._, 12–16, where the gradual development of the error is traced.
Coke, _Second Institute_, 30, was misled by the _Mirror_, and he has
in turn misled others.
-----
It has been confidently inferred that the framers of Magna Carta when
forbidding additional banks to be put “in defence,” equally as when
demanding the removal of “weirs” from non-tidal waters,[627] were
influenced by a desire to preserve public rights of fishing against
encroachment by the king or by private owners. In either case the
motives were entirely different. In the Middle Ages, fishing was a means
of procuring food, not a form of sport: to depict John and his
action-loving courtiers as exponents of the gentle art of Isaac Walton
is a ridiculous anachronism.
-----
Footnote 627:
Cf. _infra_, under c. 33.
-----
It is quite true that the value of fish as an article of diet led in
time to legislation directed primarily to their protection; but
apparently no statute with such a motive was passed previous to
1285.[628] It is further true that in the reign of Edward I. it became
usual to describe rivers, over which exclusive rights of fishing had
been established by riparian owners, as being _in defenso_;[629] but
rivers might be “preserved” for more purposes than one. From Edward’s
reign onwards, however, rights of fishing steadily became more valuable,
while falconry was superseded by other pastimes. Accordingly a new
meaning was sought for provisions of Magna Carta whose original motive
had been forgotten. So early as the year 1283 the words of a petition to
the king in Parliament show that “fishing” had been substituted for
“hawking” in interpreting the prohibition referred to in chapter 47 of
John’s Charter. In that year the men of York complained that Earl
Richard had interfered with their rights of fishing by placing _in
defenso_ the rivers Ouse and Yore, a proceeding they declared to be
“against the tenor of Magna Carta.”[630] This error, the first
appearance of which thus dates from 1283, has been accepted for upwards
of five hundred years by all commentators on Magna Carta. The credit for
dispelling it is due to Mr. Stuart A. Moore and Mr. H. S. Moore in their
_History and Law of Fisheries_, published in 1903.
-----
Footnote 628:
This was 13 Edward I., stat. 1, c. 47, cited Moore, _Ibid._, 173.
Footnote 629:
_Ibid._, p. 6.
Footnote 630:
_Ibid._, p. 16.
-----
CHAPTER TWENTY-FOUR.
Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri,
teneant placita corone nostre.
No sheriff, constable, coroners, or others of our bailiffs, shall hold
pleas of our Crown.
The main object of this provision is beyond doubt: men accused of crimes
must be tried before the king’s judges and not by local magistrates of
whatsoever kind. The innocent looked confidently for justice to the
representatives of the central government; while they dreaded the
jurisdiction of the less responsible officials resident in the
county—local tyrants whose harshness had earned them a hearty and
widespread hatred. The sheriffs and castellans thoroughly deserved their
bad reputation; for the records of the age overflow with tales of their
cruelties and illegal oppressions. It ought not to be forgotten,
however, that if this chapter contains a condemnation of the local
administration of justice, it testifies, at the same time, to the
comparative purity of the justice dispensed by the king’s own judges. So
far there is no difficulty; but some differences of opinion exist as to
the exact bearing of this provision on certain points of detail.
I. _Pleas of the Crown._ All litigations tended to be distinguished into
two kinds, royal pleas and common pleas, according as the interests of
the Crown were or were not specially involved. This classification has
already been discussed in connection with chapter 17, which sought to
regulate the procedure in common pleas. The present chapter concerns
itself only with “pleas of the Crown,” a phrase which had even in 1215
considerably altered its original meaning. In the eleventh century it
had denoted all royal business, whether specially relating to legal
procedure or not, embracing all matters connected with the king’s
household or his estates, with the collection of his revenue, or the
administration of his justice, civil as well as criminal. Gradually,
however, the usage of the word altered in two respects, contracting in
one direction, while expanding in another. It ceased to be applied to
financial business and even to non-criminal, judicial business; and it
was thereafter reserved for criminal trials held before the king’s
judges. This process of contraction had been nearly completed before the
accession of John.
Another tendency, however, in an opposite direction had been for some
time in progress; the distinction drawn in early reigns between petty
trespasses, which were left in the province of the sheriff, and grave
offences, which alone were worthy of the king’s attention, was being
slowly obliterated.[631] The royal courts steadily extended the sphere
of their activity over all misdeeds, however trivial, until the whole
realm of criminal law fell under the description of “pleas of the
Crown.”
-----
Footnote 631:
Traces of it may be found as late as the reign of Henry II. See
Glanvill, I. c. 1.
-----
In the reign of John this process of expansion was far from complete:
the words then, indeed, embraced grave criminal offences tried in the
king’s courts, but not the numerous petty offences, which were still
disposed of in the sheriffs tourn or elsewhere.[632]
-----
Footnote 632:
The gradual triumph of royal justice over all rivals in the sphere of
criminal law is thus symbolized by the extension of the phrase “pleas
of the Crown,” which can be traced through a series of
documents—_e.g._ (_a_) the laws of Cnut; (_b_) Glanvill, I. cc. I, 2,
and 3; (_c_) the Assizes of Clarendon and Northampton; (_d_) the
ordinance of 1194; and (_e_) the present chapter of Magna Carta.
-----
North of the Tweed the same phrase has had a completely different
history: in modern Scots law its connotation is still a narrow one; and
this is a direct result of the slow growth of the Scottish Crown in
authority and jurisdiction, in notable contrast to the rapidity with
which the English Crown attained the zenith of its power. The kings of
Scotland failed to crush their powerful and unruly vassals, and
consequently the pleas of the Scottish Crown, exclusively reserved for
the High Court of Justiciary, formed a meagre list—the four heinous
crimes of murder, robbery, rape, and arson. The feudal courts of the
Scottish nobles long preserved their wide jurisdiction over all other
offences. When the heritable jurisdictions were at last abolished, in
1748, mainly as a consequence of the rebellion of three years
previously, the old distinction, so deeply rooted in Scots law, still
remained. The sheriff court had no cognizance, until late in the
nineteenth century, over the four crimes specially reserved for the
king’s judges.[633] Thus in Scotland the historic phrase “pleas of the
Crown” is, even at the present day, confined to murder, robbery, rape,
and fire-raising, while to an English lawyer it embraces the entire
realm of criminal law.
-----
Footnote 633:
The _Criminal Procedure_ (_Scotland_) Act, 1887 (50 and 51 Victoria,
c. 35) gave him jurisdiction over three of them.
-----