Part 5 — MAGNA CARTA. (continued 3)

(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]

As the provisions of the reissue of 1217 are more carelessly expressed, and as in particular they contain no word 328implying “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.

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 329the 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.

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.

(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 330pending 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.”

(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.

(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 331prius combined gave them full jurisdiction over all civil pleas.^[576]

(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]

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 332had 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 333the monthly shiremoot was only thought of after the Articles of the Barons had been sealed.^[578]

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]

334

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 335dawn 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, 336but 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]

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 337contented 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]

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]

338II. 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]

(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 339larger 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]

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 340own 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]

(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 341chapter 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.

(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.

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 342gradually 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 343duties 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]

It must not be thought, however, that the position of the king’s villeins—“tenants on ancient demesne,” as they were 344technically 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]

(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 345indefinite 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]

(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.

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 346discussing 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]

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 347privileges 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]

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 348were 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]

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 349to 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]

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]

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 350all 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]

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.

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 351also 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.

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]

352

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 353roads, 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.

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 354of 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]

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]

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]

355Two 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]

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 356words. 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.”

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]

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 357sport. 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]

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]

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.

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 358rivers, 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.

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 359of 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 360obliterated.^[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.”

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]

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, 361even 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.

II. Keeping and Trying Criminal Pleas. The machinery for bringing criminals to justice, as organized by Henry II., was somewhat elaborate. For our present purpose, it may be sufficient to emphasize two important stages in the procedure. An interval had always to elapse between the commission of a grave crime and the formal trial of the criminal, since it was necessary to wait for the coming of the itinerant justices, which only took place at intervals of about seven years. Meanwhile, preliminary steps must be taken to collect and record evidence of offences, which might otherwise be lost. The magistrate responsible for these preliminary steps was said to “keep” the pleas (custodire placita)—that is, to watch them or prevent them from passing out of mind while waiting the coming of the justices who would formally “hold” or “try” or “determine” the same pleas (placitare or habere or tenere placita).

Before the reign of John, not only had the fundamental distinction between these two stages of procedure been clearly grasped, but the two functions had been entrusted to two distinct types of royal officials. The local magistrates of each district “kept” royal pleas, while only the justices who represented the central government could “hold” them. The process of differentiation was accelerated towards the close of the twelfth century in consequence of the jealousy with which the Crown regarded the increasing independence of the sheriffs. The elaborate instructions issued in 1194 to the justices whom Archbishop Hubert Walter was despatching on a more than usually important visitation of the counties contain two provisions intended to keep the growing pretensions of the sheriffs within due bounds.^[634]

They were expressly forbidden to act as justices within 362their own counties, or, indeed, in any counties in which they had acted as sheriffs at any time since Richard’s coronation.^[635]

It is safe to infer that the “trying” of royal pleas was the province from which in particular the sheriff was thus excluded. Even with regard to the “keeping” or preliminary stages of such pleas the sheriff was by no means left in sole command. The justices received instructions^[636] to cause three knights and one clerk to be chosen in each county as “custodes placitorum coronae.” It is possible that these new local officers, specially entrusted with the duty of “keeping” royal pleas, were intended rather to co-operate with than to supersede the sheriffs in this function, but in any view the sheriffs had no longer a monopoly of authority in their bailiwicks. Magistrates, to be afterwards known as coroners, were thenceforward associated with them in the administration of the county.^[637]

The ordinance of 1194 seems to have settled subsequent practice in both respects. Sheriffs, while still free to punish petty offenders on their own authority, in their half-yearly tourns or circuits, allowed the coroners to “keep” royal pleas, and the justices to “try” them.

Public opinion of the day strongly approved both rules, yet John condoned and encouraged irregularities, allowing sheriffs to meddle with pleas of the Crown, even when the coroners were not present to check their arbitrary methods;^[638] and allowing them to give a final judgment on such pleas, involving, mayhap, loss of life or limb to those found guilty, without waiting the arrival of the Justices.^[639] Such 363deviations from the normal course of procedure could be no longer tolerated. Magna Carta accordingly, in this first of a series of chapters directed against the misdeeds of sheriffs and other local magistrates, forbade them to interfere in this province.

III. The Intention of Magna Carta. The barons, in this matter as in so many others, were merely demanding that the Crown should observe strictly and impartially the rules which it had laid down for its own guidance: caprice must give way to law. Sheriffs must not, with or without the king’s connivance, usurp the functions of coroners; nor must sheriffs and coroners together usurp those of the king’s justiciars. The opposition leaders naturally associated these two irregularities together, and may even have assumed that expressly to abolish the one implied, with sufficient clearness, an intention to abolish the other also. Such a supposition would explain a peculiar discrepancy between the Articles and the Charter, in its final form, which it is otherwise difficult to account for. While Article 14 demanded redress of one specific grievance, Magna Carta granted redress of an entirely different one. The earlier document, neglecting the distinction between “keeping” and “trying” pleas, simply requires that coroners (whose comparative popularity is explained by their appointment in the county court) should always be associated with the sheriff when he meddles in any way with pleas of the Crown. The Charter is silent on this subject; but forbids sheriffs and coroners, whether acting separately or together, to “try” or finally determine pleas of this description. These two provisions are the complements of each other. Magna Carta would thus seem to be here incomplete.

The prohibition against sheriffs trying pleas of the Crown was repeated in all reissues of the Charter; and, although not perhaps strictly enforced in Henry’s reign, soon became absolute. Under Edward I. it was interpreted to mean that no one could determine such pleas unless armed with a royal commission to that effect;^[640] and the commission 364would take the form either of gaol delivery, of trailbaston, or of oyer and terminer.^[641]

IV. An Erroneous View. Hallam seems to have misunderstood the object aimed at by this provision. Commenting on the corresponding chapter of Henry’s Charter of 1225, he declares that the “criminal jurisdiction of the Sheriff is entirely taken away by Magna Charta, c. 17.”^[642] This is a complete mistake: both before and after the granting of the Charter, the sheriff exercised criminal jurisdiction, and that of two distinct kinds. Along with the coroners, he conducted preliminary enquiries even into pleas of the Crown; while in his tourn (which was specially authorized to be held twice a year by chapter 42 of the very Charter quoted by Hallam) he was completely responsible for every stage of procedure in regard to trivial offences. He heard indictments and then tried and punished petty offenders in a summary manner.^[643] Several statutes of later reigns confirmed, even while regulating, the authority of the sheriff to take indictments at his tourns,^[644] until this jurisdiction was transferred, by an act of the fifteenth century, to the justices of peace assembled in Quarter Sessions.^[645]

All that Magna Carta did was to insist that no sheriff or local magistrate should encroach on the province reserved for the royal justices, namely the final “trying” of such grave crimes as had now come to be recognized as “pleas of the Crown.”^[646] The Charter did not even attempt to define 365what these were, leaving the boundary between great and small offences to be settled by use and wont. In all this, it was simply declaratory of existing practice, making no attempt to draw the line in a new place.^[647]

V. Local Magistrates under John. The urgent need of preventing the petty tyrants who controlled the administration of the various districts from exercising jurisdiction over the lives and limbs of freemen can be abundantly illustrated from the details furnished by contemporary records of the ingenious and cruel oppressions they constantly resorted to. Ineffectual attempts had indeed been made more than once to restrain their evil practices, as in August, 1213, when directions were issued from the Council of St. Alban’s commanding the sheriffs, foresters, and others, to abstain from unjust dealing,^[648] and, again, some two months later, when John, at the instance of Nicholas of Tusculum, the papal legate, promised to restrain their violence and illegal exactions.^[649] Little or nothing, however, was effected in the way of reform; and Magna Carta, in addition to condemning certain specified evils, contained two general provisions, namely, chapter 45, which indicated what type of men should be appointed as Crown officials, and the present chapter, which forbade local magistrates to encroach on the province of the king’s justices. These local magistrates are comprehensively described under four different names.^[650]

366(1) The sheriff. No royal officer was better or more justly hated than the sheriff. The chapter under discussion affords strong evidence alike of his importance and of the jealousy with which his power was viewed. The very briefest sketch of the origin and growth of the office is all that is here possible. Long before the Conquest, in each shire of England, the interests, financial and otherwise, of the kings of the royal house of Wessex had been entrusted to an agent or man of business of their own appointing, known as a scir-gerefa (or shire-reeve). These officers were continued by the Norman monarchs with increased powers under the new name of vice comites.^[651] It is an illustration of the tenacity of the Anglo-Saxon customs and names that this Latin title never took root, whereas the old title of sheriff continues to the present day.

It is true that in England during the Anglo-Saxon period the chief power over each shire or group of shires had been shared among three officers—the bishop, the earl, and the sheriff. The bishop, by the natural differentiation of functions, soon confined his labours to the spiritual affairs of his diocese; while the deliberate policy of the Conqueror and his successors relegated the earl to a position of dignity altogether severed from the possession of real power. Thus the sheriff was left without a rival within his shire. For a period of at least one hundred years after the Norman Conquest he wielded an excessive local authority as the sole tyrant of the county. He was not indeed irresponsible, but it was difficult for his victims to obtain the ear of the distant king, who alone was strong enough to punish him. The zenith of the sheriff’s power, however, was passed in the twelfth century, and before its close changes had been introduced with the view of checking his abuses. Henry II. 367frequently punished his sheriffs for their misdeeds, and removed them from office.

It has already been explained how in 1194 the sheriff’s powers were further restricted, while new officers were appointed in each county to share the authority still left to him. To the very next year (1195) is usually traced the origin of the justices of the peace, who gradually took over the chief duties of the sheriff until they had practically superseded him as the ruling power in the county. In Tudor days a new rival appeared in the Lord Lieutenant, then first appointed in each shire to represent the Crown in its military capacity, and particularly to take over command of the militia of the county. The fall of the sheriff from his former high estate was thus gradual, although finally most complete. From presiding, as he did in his golden age, over all the business of the district—financial, administrative, military, and judicial—the sheriff has become, in England at the present day, a mere honorary figure-head of the county executive. A high sheriff is still chosen annually by King Edward for each county by pickingpicking at random one name out of a list of three leading land-owners presented to him for that purpose by the judges. The gentleman on whom this sometimes unwelcome dignity is thrust is still nominally responsible during his year of office for the execution of all writs of the superior Courts within his county, for returning the names of those elected to serve in the House of Commons, and for many other purposes; but his responsibility is chiefly theoretical. All the real duties of his office are now performed in practice by subordinates. What really remains to him is an empty and expensive honour, usually shunned rather than courted. In Scotland and America the sheriff also exists at the present day, but his position and functions have in these countries developed in very different directions. In Scotland, in opposition to what has happened in England and America, the sheriff has remained emphatically a judicial officer, the judge of an inferior court, namely, the local court of his shire, known as “the Sheriff Court.” He has thus retained intact his judicial functions, to which 368such nominal administrative duties as still remain to him are entirely subordinate. In the United States of America, on the contrary, the sheriff is a purely executive official, possessing perhaps more real power, but notably less honour and social distinction than fall to the lot of the English high sheriff. The duties of his office are sometimes performed by him in person; he may even set out at the head of the posse comitatus in pursuit of criminals. Three completely different offices have thus sprung from the same constitutional root, and all three are still known by one name in England, Scotland, and America respectively.

(2) The constable. Portions of certain counties were exempted, partially or entirely, from the sheriff’s bailiwick, and placed under the authority of specially appointed magistrates. Thus districts afforested were administered by forest wardens assisted by verderers who excluded the sheriffs and coroners; while royal fortresses, together with the land immediately surrounding them, were under the sole command of officers known indifferently as castellans or constables.^[652] The offices of warden of a particular forest and warden of an adjacent royal castle were frequently conferred on the same individual. Indeed, chapter 16 of the Forest Charter of Henry III. seems to use the term “castellans” as the recognized name of forest wardens, whom it forbids to hold “pleas of the forest,” although they may attach or “keep” them (with the co-operation of the verderers), and present them for trial before the king’s emissaries when next sent to hold a forest eyre—thus offering a complete parallel between procedure at “forest pleas” and that prescribed by the present chapter for ordinary pleas of the Crown.^[653]

The name constable is an ambiguous one, since it has at different periods of history been applied to officers of 369extremely different types. The king’s High Constable, a descendant of the horse-thegn of the Anglo-Saxon kings, was originally that member of the royal household who was specially responsible for the king’s stables. At a later date, he shared with the Earl Marshal the duties of Commander-in-chief of the king’s armies. The name of constable was also used in a wider sense to designate other and subordinate royal ministers. It came to be applied to commanders of small bodies of troops, whether in castles or elsewhere. At a later date the word lost its warlike associations, and was used in connection with the duties of watch and ward. A constable was a person specially entrusted with enforcing order in his own locality. Thus each hundred had its high constable and each village its petty constable in the fourteenth and fifteenth centuries.^[654] These various officials were thus, at different dates, all designated by a name usually, at the present day, confined to ordinary members of the police force.

The word as used in Magna Carta had not yet lost its military character, but denoted the castellan who commanded the troops which garrisoned a royal castle.^[655] Such an office was one of great trust; and correspondingly wide powers were conferred upon its holder. The warden of a castle held an important military command, and acted as gaoler of the prisoners confided to the safe-keeping of his dungeons. He had authority, under certain ill-defined restrictions, to take whatever he thought necessary for provisioning the garrison—a privilege, the exercise of which frequently led to abuses, guarded against by chapters 28 and 29 of Magna Carta, where they are discussed under the head of purveyance. He had also, to a limited extent, judicial authority. Not only did he try pleas for 370small debts to which Jews were parties, but he enjoyed a jurisdiction over all petty offences committed within the precincts of the castle, analogous to that of the sheriff within the rest of the county. This power of trying and punishing misdemeanours was not taken away by the Great Charter, and was confirmed by implication in 1300 by a statute which directed that the constable of Dover Castle should not hold within the castle gate “foreign” pleas of the county which did not affect “the guard of the castle.”^[656] It is not known at what date the judicial powers of constables fell into disuse; but they still acted as gaolers at a much later period. In the reign of Henry IV. complaint was made that constables of castles were appointed justices of the peace, and imprisoned in one capacity the victims whom they had unjustly condemned in another. This practice was put down by statute in 1403.^[657]

It would seem that at an earlier period the constable sometimes acted as a deputy-sheriff. Chapter 12 of the Assize of Northampton provided that when the sheriff was absent the nearest castellanus might take his place in dealing with a thief who had been arrested. His interference outside his own precincts must, however, have been regarded with great jealousy, and the coroners, after their appointment in 1194, would naturally act as substitutes during the sheriff’s absence.

(3) The coroners. The coroners of each county, after their institution in 1194, seem to have shared with the sheriff most of the powers of which the latter had previously enjoyed a monopoly. The nature of their duties is explained by the oath of office sworn in the same words for many centuries, “ad custodienda ea quae pertinent ad coronam.” Their duty was to guard royal interests generally; and their “keeping” of royal pleas was 371merely one aspect of this wider function. Besides “attaching” those suspected of crimes—that is, receiving formal accusations and taking such sureties as might be necessary, it was their duty to make all such preliminary investigations as might throw light on the case when the formal trial was afterwards held; they had, for example, to examine the size and nature of the victim’s wounds in a charge of mayhem.^[658] They were required, in particular, to keep a watchful eye on all royal property, being responsible for the safe-keeping of deodands, wrecks, and treasure trove. They had also to appraise the value of all chattels of criminals forfeited to the king. When felons took refuge in sanctuary, it was the coroner who arranged for their leaving the country on forfeiting all that they had. They also kept a record of those who had been outlawed, and received “appeals” or private accusations of criminal charges.^[659]

Magna Carta forbade the coroner to determine the pleas of the Crown; but, even after 1215, he sometimes did justice upon felons caught red-handed, whose guilt was self-evident without trial. An act of Edward I.^[660] accurately defined his duties, empowering him to attach pleas of the Crown and to present criminals to the justices for trial, but forbidding him to proceed further alone.

The coroner’s functions, originally so wide and varied, have been gradually narrowed down, until now there is practically only one duty commonly associated with his office, namely, the holding of an inquest on a dead body where there are suspicious circumstances.^[661] In addition to this, however, he is still responsible for treasure-trove 372or valuables found buried in the ground, and he is also competent to act generally as the substitute of the sheriff in case of the latter’s illness or absence during his year of office.

(4) The bailiffs. The mention by name of three classes of local officers is supplemented by the addition of an indefinite word sufficiently wide to cover all grades of Crown officials. The term “bailiff” may be correctly applied to every individual to whom authority of any sort has been delegated by another. It would, in the present instance, include the assistants of sheriffs and constables, the men who actually served writs, or distrained the goods of debtors; and also generally all local officials of every description holding authority directly or indirectly from the Crown. The district over which his office extended was called his “bailiwick,” a term often applied to the county considered as the sphere of the sheriff’s labours.

CHAPTER TWENTY-FIVE.

Omnes comitatus, hundrede, wapentakii, et trethingic, sint ad antiquas firmas absque ullo incremento, exceptis dominicis maneriis nostris.

All counties, hundreds, wapentakes, and trithings (except our demesne manors) shall remain at the old rents, and without any additional payment.

This provision also was directed against the sheriffs, and shows a praiseworthy determination to get to the root of the disease, instead of merely attacking the symptoms. The rents at which the counties (or parts of them) were farmed out to the sheriffs must no longer be arbitrarily raised, but were to remain at the old figures which had 373become stereotyped from long usage. To understand how such increases would injuriously affect the inhabitants of the county, some explanation is necessary. Centuries before the Norman Conquest, the long process had been already completed by which England had been gradually mapped out into shires on lines substantially the same as those which still exist. Each county had been further subdivided into smaller districts known as “hundreds” in the south, and as “wapentakes” in the Danish districts of the north; while intermediate divisions existed, exceptionally, in some of the specially large counties such as York and Lincoln, each of which had three “trithings” or ridings.

In commenting upon chapter 24, it has been already explained how the Anglo-Saxon kings entrusted their interests in each shire to an officer called a sheriff, and how a similar officer under the Norman kings became practically the chief magistrate and local judge in the county. His financial duties, however, long remained the most important: William I. and his successors had greater pecuniary interests in the English counties than their Anglo-Saxon forerunners ever had, and the sheriffs were their agents in collecting all rents and other dues. Even before the Conquest, however, the sheriff of an ordinary county had ceased to be a mere intermediary, who lifted the king’s rents and paid over, pound by pound, the yearly varying sums he might receive. He had become a firmarius: he bought for a yearly rent the right to collect and appropriate to his own uses the various revenues of the county. The Crown got only the exact sum stipulated for, known as the firma comitatus; while the balance, if any, remained with the sheriff. That officer was liable, on the other hand, for the sum agreed on, even when the annual yield fell short of his anticipations. In plain words, the sheriff speculated in the returns, and it was his business, by fair means or foul, to make sure of a handsome surplus.

Authorities differ as to the exact list of items purchased by the slump sum known as firma comitatus; but undoubtedly the two chief sources of revenue embraced were the profits 374of justice dispensed in the local courts, and the rents and returns from the various royal manors in the county.

William I. sharply raised the amounts of all these farms for his own benefit, and his successors endeavoured, whenever possible, to increase them still further. Now it might seem at first sight that these additional burdens concerned exclusively the Crown and the sheriff, but such was by no means the case. The sheriff took care to pass on the burden primarily falling upon him to the shoulders of those who were subject to his authority. When the king exacted more from the sheriff, the latter in turn increased the pressure on the inhabitants of his county or group of counties. His rule tended always to be oppressive, but his unjust fines and exactions would be doubled at times when the amount of the firma had recently been raised.

Under the vigilant rule of Henry II. some measure of relief was obtained by the shires from the misdeeds of their local tyrants, since that far-seeing king knew that his own best interests called for a curtailment of the pretensions of the sheriffs. He punished their excesses, and frequently deprived them of office. Under John the sheriffs had a comparatively free hand to oppress their victims, for he entered into a tacit alliance with them, in order that the two tyrants (the heads of the central and the local government respectively) might together fleece the men of the county more effectually. In addition to the fixed annual rents in name of firma which had again become stereotyped, John extorted an additional lump payment called either an incrementum or by various other names, and allowed the sheriffs to inflict new severities in order to recoup themselves for their additional outlay.^[662]

375Magna Carta made no attempt to abolish the practice of farming out the shires, but forbade alike the increase of the farm and the exaction of an incrementum.

If this reform benefited the men of the counties in their dealings with the sheriffs, it also gave the sheriffs an unfair advantage over the exchequer. The total value of the various assets included in the firma comitatus had greatly increased in the past, and would probably continue to increase in the future. Therefore, it was absurd to bind the Crown by a hard-and-fast rule which would practically make a present of this future “unearned increment” to the sheriff. It belonged of right to the Crown; and the exchequer had increasing need of supplies to meet the increasing duties of the central government. To stereotype the firma to be paid in return for a constantly increasing revenue was unfair to the Crown.^[663] It is thus easy to understand why this chapter was entirely omitted in 1216 and in subsequent reissues. The Articuli super cartas, on the other hand, while conceding to the counties the right of electing their own sheriffs, reaffirmed the principle of John’s Charter, declaring that neither the bailiwicks and hundreds of the king, nor those of great lords ought to be put to farm at too high rates. The evil, however, continued under a new form; sheriffs, while only paying a moderate farm themselves, sublet parts of their province at much higher rates, thus appropriating the increment denied to the exchequer, while the bailiffs who had paid the increase could not “levy the said ferm without doing extortion and duress to the people.”^[664] Three successive acts prohibited this practice, declaring that hundreds and wapentakes must either be kept 376in the sheriff’s own hands, or sublet, if at all, at the old fixed farms only.^[665]

One exception to the scope of its own provisions was deliberately made by Magna Carta—an exception of an important and notable nature; the demesne manors of the Crown were deliberately left exposed to arbitrary increases of their annual rents. The towns in this respect were practically in the same position as the demesne manors. It is true that many of them had received separate charters fixing the amounts annually payable under the name of farm (firma burgi in their case), and that all such charters received a general confirmation in chapter 13 of the Great Charter, but the Crown could probably evade these promises by applying the name of “increment” to any additional payments desired, or, if that were objected to, might still resort to an arbitrary “tallage,” the right to extort which had not been taken away by Magna Carta. The money was as good to the Crown under one name as under another.^[666]

CHAPTER TWENTY-SIX.

Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel ballivus noster ostendat litteras nostras patentes de summonicione nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare et inbreviare catalla defuncti, inventa in laico feodo, ad valenciam illius debiti, per visum legalium hominum, ita tamen quod nichil inde amoveatur, donec persolvatur nobis debitum quod clarum fuerit; et residuum relinquatur executoribus ad faciendum testamentum defuncti; et, si nichil nobis debeatur ab ipso, omnia catalla cedant defuncto, salvis uxori ipsius et pueris racionabilibus partibus suis.

If any one holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a 377debt which the deceased owed to us, it shall be lawful for our sheriff or bailiff to attach and catalogue chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of lawful men, provided always that nothing whatever be thence removed until the debt which is evident^[667] shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares.

The primary object of this chapter was to regulate the procedure to be followed in attaching the personal estates of Crown tenants who were also Crown debtors. Incidentally, however, it throws light on the general question of the right of bequeathing property.

I. The Nature of the Grievance. When a Crown tenant died it was almost certain that arrears of one or other of the numerous scutages, incidents, or other payments due to the Crown remained unpaid. The sheriff and the bailiffs of the district where the deceased’s estates lay were in the habit of seizing everything they could find on his manor under the excuse of securing the interests of their royal master. They attached and sold chattels out of all proportion to the sum actually due; and after satisfying the Crown debt, a large surplus would often remain in the sheriff’s hands which it would be exceedingly difficult for the relatives of the deceased freeholder to force him to disgorge.

Magna Carta here sought to make such irregularities impossible for the future by carefully defining the exact procedure to be followed in such circumstances. The sheriff and his bailiffs were forbidden to touch a single chattel of a deceased Crown tenant, unless they came armed with a legal warrant in the form of royal letters patent vouching the existence and the amount of the Crown debt. Even after exhibiting a warrant in proper form, the officers were only allowed to attach as many chattels as could 378reasonably be considered necessary to satisfy the full value of the debt due to the exchequer; and everything so taken must be carefully inventoried. All this was to be done “at the sight of lawful men,” respectable, if humble, neighbours specially summoned for that purpose, whose function it was to form a check on the actions of the sheriff’s officers generally, to prevent them from appropriating anything not included in the inventory, to assist in valuing each article and to see that no more chattels were distrained than necessary. A saving clause protected the interests of the Crown by forbidding the removal from the tenant’s fief of any of the chattels, even those not so attached, until the full ascertained amount had actually been paid to the exchequer. The Crown’s preferential claims remained over everything on the manor until the debt was extinguished. Only after that had been done, could a division of the estate take place among the deceased man’s relatives or those in whose favour he had executed a Will.

These provisions should be read in connection with the terms of chapter 9,^[668] which provided that diligence for Crown debts must proceed against personal estate before the debtor’s freehold was distrained, and laid down other equitable rules applicable alike to the case of a deceased Crown debtor and to that of a living one.

II. The Right to Bequeath. The main interest of this chapter lies, however, for the historian of law and institutions, in quite a different direction; to him it is valuable for the light incidentally thrown on the limits within which the right of making Wills was recognized in 1215. The early law of England seems to have had great difficulty in deciding how far it ought to acknowledge the claims made by owners of property, both real and personal, to direct its destination after death. Various influences were at work, prior to the Norman Conquest, to make the development of this branch of law illogical and capricious.^[669] 379Of the law of bequests in the twelfth century, however, it is possible to speak with greater certainty; definite principles had by that time received general recognition. All testamentary rights over land or other real estate (so far as these had ever actually existed) were now abolished, not, as has sometimes been maintained, in the interest of the feudal lord, but rather in the interests of the expectant heir.^[670] Thus the right to devise land had been absolutely prohibited before the end of the twelfth century. Many reasons contributed to this result. For one thing, it had become necessary to prevent churchmen from using their influence to wring bequests of land from dying men, to the impoverishment of the rightful heir, and to the destruction of the due balance between Church and State, already menaced by the rapidly accumulating wealth of the various religious orders.

Churchmen, in compensation as it were for the obstacles thus opposed to their thirst for the land of the dying, made good their claim to regulate all Wills dealing with personal estate; that is money, goods, and chattels. They claimed and obtained for their own courts the right to exclusive jurisdiction over all testamentary provisions, now, of course, competent in respect of personal estate only. The Courts Christian “proved” Wills, (that is, usurped the right to determine whether they were really valid acts of the departed or not) and also superintended their administration. In particular, they had control over the “executors” who were originally the friends to whom the deceased had made known his wishes as to the distribution of his money and chattels on his death. The Church Courts ensured that the executors loyally carried out these intentions, and prevented them from appropriating to their own uses what had been entrusted to them for the good of the deceased’s soul. In John’s reign, however, the Crown and its officers interfered alike with the rights of testators to make Wills and the rights of the bishop of the diocese to supervise the distribution. Not only did the sheriffs 380find pretexts to help themselves; but John seems to have maintained that Wills were not valid without his consent, which had, as usual, to be paid for. Such, at least, is the inference to be drawn from the existence of writs granting licences to make a Will, or confirming one that had been made.^[671] The king’s interference in this province seems, however, to have been regarded as an entirely illegal encroachment.

In strict law, rights of testation, though prohibited quoad land, were recognized quoad personal estate. It must not, however, be supposed that the testator was at liberty to divide or “devise” all his money and chattels. The reasonable claims of wife and children must first be respected, and only the free balance, after satisfying these, could be distributed. It was long before any exact rule was established for determining the amount of these “reasonable” claims. Much could be said for an elastic rule which allowed the proportion of personal estate falling to wife and children to vary with the circumstances of each case; but this vagueness had one grave objection; it inevitably led to friction and family quarrels. Magna Carta in this respect simply confirmed existing practice, and made no attempt at definition. During the thirteenth century, however, the lawful shares of wife and children were definitely fixed by the English common law, and that, too, at exactly the same proportions of the entire personal estate as are recognized to the present day by the law of Scotland. Where a Scots testator dies leaving wife and children, his moveable or personal estate is regarded as falling naturally into three equal parts, known as the widow’s part, the bairn’s part, and the dead’s part, respectively. It is only with the last mentioned third of his own moveables that he can do as he likes. If he disposes of the rest, wife and children may claim their legal rights and “break the Will.” Where a 381wife survives but no children, or vice versa, the division is into two equal portions. Magna Carta recognises a similar threefold or twofold decision, and contains a clear acknowledgment of what Scots law to the present day quaintly describes as "the dead’s part." It was only the residue of the deceased’s chattels after claims of wife and children had been satisfied, which was “to fall to the deceased,” and which is also spoken of as the portion of personal estate left to the executors “to fulfil the testament of the deceased.” This portion was appropriated “to the use of the dead”: that is, his executors, under the guidance of the Church Courts, would use it for the salvation of his soul. The deceased might either have given specific directions, or have left full powers to his executors (frequently churchmen) to make the division for charitable and religious purposes according to their own discretion. Part might go to needy relations, or to the poor of the district; part to endow religious houses; and part in masses for his eternal welfare.

Long subsequent to the thirteenth century, the laws of England and Scotland as to the rights of succession of wife and children seem to have remained identical: but, while Scots law is the same to the present day, recognizing still the widow’s jus relictae and the children’s legitim, the English law has, by slow steps, the details of which are obscure, entirely changed. The rule which acknowledged the children’s right to one third of the personal estate was gradually relaxed, while the testator became sole judge what provision he ought to make for his sons, until at last a purely nominal sum of money was all that was required. Finally the power to bequeath personal estate has (in sympathy with exaggerated modern conceptions of the sacredness of rights of “property”) expanded to such an extent that a father may leave his children entirely penniless; and the law will not interfere. The law of England, at the present day, does not compel him to leave his son or daughter even the proverbial shilling. The phrase “to cut off a son with a shilling,” which still lives in popular usage, may possibly 382perpetuate a now forgotten tradition of an intermediate stage of English law, where some provision, however inadequate, had to be made, if the Will was to be allowed to stand.^[672]