Civil Government in the United States Considered with Some Reference to Its Origins Part 41

36. _Nothing from henceforth shall be given or taken for a writ of inquisition of life or limb, but it shall be granted freely, and not denied._[36]

[Footnote 36: This important writ, or "writ concerning hatred and malice," may have been the prototype of the writ of _habeas corpus_, and was granted for a similar purpose.]

37. If any do hold of us by fee-farm, or by socage, or by burgage, and he hold also lands of any other by knight's service, we will not have the custody of the heir or land, which is holden of another man's fee by reason of that fee-farm, socage,[37] or burgage; neither will we have the custody of the fee-farm, or socage, or burgage, unless knight's service was due to us out of the same fee-farm. We will not have the custody of an heir, nor of any land which he holds of another by knight's service, by reason of any petty serjeanty[38] by which he holds of us, by the service of paying a knife, an arrow, or the like.

[Footnote 37: "Socage" signifies lands held by tenure of performing certain inferior offices in husbandry, probably from the old French word _soc_, a plough-share.]

[Footnote 38: The tenure of giving the king some small weapon of war in acknowledgment of lands held.]

38. No bailiff from henceforth shall pat any man to his law[39] upon his own bare saying, without credible witnesses to prove it.

[Footnote 39: Equivalent to putting him to his oath. This alludes to the Wager of Law, by which a defendant and his eleven supporters or "compurgators" could swear to his non-liability, and this amounted to a verdict in his favour.]

39. _No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pa.s.s upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land._

40. _We will sell to no man, we will not deny to any man, either justice or right._

41. All merchants shall have safe and secure conduct, to go out of, and to come into England, and to stay there and to pa.s.s as well by land as by water, for buying and selling by the ancient and allowed customs, without any unjust tolls; except in time of war, or when they are of any nation at war with us. And if there be found any such in our land, in the beginning of the war, they shall be attached, without damage to their bodies or goods, until it be known unto us, or our chief justiciary, how our merchants be treated in the nation at war with us; and if ours be safe there, the others shall be safe in our dominions.

42. It shall be lawful, for the time to come, for any one to go out of our kingdom, and return safely and securely by land or by water, saving his allegiance to us; unless in time of war, by some short s.p.a.ce, for the common benefit of the realm, except prisoners and outlaws, according to the law of the land, and people in war with us, and merchants who shall be treated as is above mentioned.[40]

[Footnote 40: The Crown has still technically the power of confining subjects within the kingdom by the writ "ne exeat regno," though the use of the writ is rarely resorted to.]

43. If any man hold of any escheat,[41] as of the honour of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which be in our hands, and are baronies, and die, his heir shall give no other relief, and perform no other service to us than he would to the baron, if it were in the baron's hand; and we will hold it after the same manner as the baron held it.

[Footnote 41: The word _escheat_ is derived from the French _escheoir_, to return or happen, and signifies the return of an estate to a lord, either on failure of tenant's issue or on his committing felony. The abolition of feudal tenures by the Act of Charles II. (12 Charles II. c. 24) rendered obsolete this part and many other parts of the Charter.]

44. Those men who dwell without the forest from henceforth shall not come before our justiciaries of the forest, upon common, summons, but such as are impleaded, or are sureties for any that are attached for something concerning the forest.[42]

[Footnote 42: The laws for regulating the royal forests, and administering justice in respect of offences committed in their precincts, formed a large part of the law.]

45. We will not make any justices, constables, sheriffs, or bailiffs, but of such as know the law of the realm and mean duly to observe it.

46. All barons who have founded abbeys, which they hold by charter from the kings of England, or by ancient tenure, shall have the keeping of them, when vacant, as they ought to have.

47. All forests that have been made forests in our time shall forthwith be disforested; and the same shall be done with the water-banks that have been fenced in by us in our time.

48. All evil customs concerning forests, warrens, foresters, and warreners, sheriffs and their officers, water-banks and their keepers, shall forthwith be inquired into in each county, by twelve sworn knights of the same county, chosen by creditable persons of the same county; and within forty days after the said inquest be utterly abolished, so as never to be restored: so as we are first acquainted therewith, or our justiciary, if we should not be in England.

49. We will immediately give up all hostages and charters delivered unto us by our English subjects, as securities for their keeping the peace, and yielding us faithful service.

50. We will entirely remove from their bailiwicks the relations of Gerard de Atheyes, so that for the future they shall have no bailiwick in England; we will also remove Engelard de Cygony, Andrew, Peter, and Gyon, from the Chancery; Gyon de Cygony, Geoffrey de Martyn, and his brothers; Philip Mark, and his brothers, and his nephew, Geoffrey, and their whole retinue.

51. As soon as peace is restored, we will send out of the kingdom all foreign knights, cross-bowmen, and stipendiaries, who are come with horses and arms to the molestation of our people.

52. If any one has been dispossessed or deprived by us, without the lawful judgment of his peers, of his lands, castles, liberties, or right, we will forthwith restore them to him; and if any dispute arise upon this head, let the matter be decided by the five-and-twenty barons hereafter mentioned, for the preservation of the peace. And for all those things of which any person has, without the lawful judgment of his peers, been dispossessed or deprived, either by our father King Henry, or our brother King Richard, and which we have in our hands, or are possessed by others, and we are bound to warrant and make good, we shall have a respite till the term usually allowed the crusaders; excepting those things about which there is a plea depending, or whereof an inquest hath been made, by our order before we undertook the crusade; but as soon as we return from our expedition, or if perchance we tarry at home and do not make our expedition, we will immediately cause full justice to be administered therein.

53. The same respite we shall have, and in the same manner, about administering justice, disafforesting or letting continue the forests, which Henry our father, and our brother Richard, have afforested; and the same concerning the wards.h.i.+p of the lands which are in another's fee, but the wards.h.i.+p of which we have hitherto had, by reason of a fee held of us by knight's service; and for the abbeys founded in any other fee than our own, in which the lord of the fee says he has a right; and when we return from our expedition, or if we tarry at home, and do not make our expedition, we will immediately do full justice to all the complainants in this behalf.

54. No man shall be taken or imprisoned upon the appeal[43] of a woman, for the death of any other than her husband.

[Footnote 43: An _Appeal_ here means an "accusation." The appeal here mentioned was a suit for a penalty in which the plaintiff was a relation who had suffered through a murder or manslaughter. One of the incidents of this "Appeal of Death" was the Trial by Battle. These Appeals and Trial by Battle were not abolished before the pa.s.sing of the Act 59 Geo. III., c. 46.]

55. All unjust and illegal fines made by us, and all amerciaments imposed unjustly and contrary to the law of the land, shall be entirely given up, or else be left to the decision of the five-and-twenty barons hereafter mentioned for the preservation of the peace, or of the major part of them, together with the aforesaid Stephen, Archbishop of Canterbury, if he can be present, and others whom he shall think fit to invite; and if he cannot be present, the business shall notwithstanding go on without him; but so that if one or more of the aforesaid five-and-twenty barons be plaintiffs in the same cause, they shall be set aside as to what concerns this particular affair, and others be chosen in their room, out of the said five-and-twenty, and sworn by the rest to decide the matter.

56. If we have disseised or dispossessed the Welsh of any lands, liberties, or other things, without the legal judgment of their peers, either in England or in Wales, they shall be immediately restored to them; and if any dispute arise upon this head, the matter shall be determined in the Marches by the judgment of their peers; for tenements in England according to the law of England, for tenements in Wales according to the law of Wales, for tenements of the Marches according to the law of the Marches: the same shall the Welsh do to us and our subjects.

57. As for all those things of which a Welshman hath, without the lawful judgment of his peers, been disseised or deprived of by King Henry our father, or our brother King Richard, and which we either have in our hands or others are possessed of, and we are obliged to warrant it, we shall have a respite till the time generally allowed the crusaders; excepting those things about which a suit is depending, or whereof an inquest has been made by our order, before we undertook the crusade: but when we return, or if we stay at home without performing our expedition, we will immediately do them full justice, according to the laws of the Welsh and of the parts before mentioned.

58. We will without delay dismiss the son of Llewellin, and all the

Welsh hostages, and release them from the engagements they have entered into with us for the preservation of the peace.

59. We will treat with Alexander, King of Scots, concerning the restoring his sisters and hostages, and his right and liberties, in the same form and manner as we shall do to the rest of our barons of England; unless by the charters which we have from his father, William, late King of Scots, it ought to be otherwise; and this shall be left to the determination of his peers in our court.

60. All the aforesaid customs and liberties, which we have granted to be holden in our kingdom, as much as it belongs to us, all people of our kingdom, as well clergy as laity, shall observe, as far as they are concerned, towards their dependents.

61. And whereas, for the honour of G.o.d and the amendment of our kingdom, and for the better quieting the discord that has arisen between us and our barons, we have granted all these things aforesaid; willing to render them firm and lasting, we do give and grant our subjects the underwritten security, namely that the barons may choose five-and-twenty barons of the kingdom, whom they think convenient; who shall take care, with all their might, to hold and observe, and cause to be observed, the peace and liberties we have granted them, and by this our present Charter confirmed in this manner; that is to say, that if we, our justiciary, our bailiffs, or any of our officers, shall in any circ.u.mstance have failed in the performance of them towards any person, or shall have broken through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciary, if we are out of the realm, and, laying open the grievance, shall pet.i.tion to have it redressed without delay: and if it be not redressed by us, or if we should chance to be out of the realm, if it should not be redressed by our justiciary within forty days, reckoning from the time it has been notified to us, or to our justiciary (if we should be out of the realm), the four barons aforesaid shall lay the cause before the rest of the five-and-twenty barons; and the said five-and-twenty barons, together with the community of the whole kingdom, shall distrain and distress us in all the ways in which they shall be able, by seizing our castles, lands, possessions, and in any other manner they can, till the grievance is redressed, according to their pleasure; saving harmless our own person, and the persons of our Queen and children; and when it is redressed, they shall behave to us as before. And any person whatsoever in the kingdom may swear that he will obey the orders of the five-and-twenty barons aforesaid in the execution of the premises, and will distress us, jointly with them, to the utmost of his power; and we give public and free liberty to any one that shall please to swear to this, and never will hinder any person from taking the same oath.

62. As for all those of our subjects who will not, of their own accord, swear to join the five-and-twenty barons in distraining and distressing us, we will issue orders to make them take the same oath as aforesaid. And if any one of the five-and-twenty barons dies, or goes out of the kingdom, or is hindered any other way from carrying the things aforesaid into execution, the rest of the said five-and-twenty barons may choose another in his room, at their discretion, who shall be sworn in like manner as the rest. In all things that are committed to the execution of these five-and-twenty barons, if, when they are all a.s.sembled together, they should happen to disagree about any matter, and some of them, when summoned, will not or cannot come, whatever is agreed upon, or enjoined, by the major part of those that are present shall be reputed as firm and valid as if all the five-and-twenty had given their consent; and the aforesaid five-and-twenty shall swear that all the premises they shall faithfully observe, and cause with all their power to be observed. And we will procure nothing from any one, by ourselves nor by another, whereby any of these concessions and liberties may be revoked or lessened; and if any such thing shall have been obtained, let it be null and void; neither will we ever make use of it either by ourselves or any other. And all the ill-will, indignations, and rancours that have arisen between us and our subjects, of the clergy and laity, from the first breaking out of the dissensions between us, we do fully remit and forgive: moreover, all trespa.s.ses occasioned by the said dissensions, from Easter in the sixteenth year of our reign till the restoration of peace and tranquillity, we hereby entirely remit to all, both clergy and laity, and as far as in us lies do fully forgive.

We have, moreover, caused to be made for them the letters patent testimonial of Stephen, Lord Archbishop of Canterbury, Henry, Lord Archbishop of Dublin, and the bishops aforesaid, as also of Master Pandulph, for the security and concessions aforesaid.

63. Wherefore we will and firmly enjoin, that the Church of England be free, and that all men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, truly and peaceably, freely and quietly, fully and wholly to themselves and their heirs, of us and our heirs, in all things and places, forever, as is aforesaid. It is also sworn, as well on our part as on the part of the barons, that all the things aforesaid shall be observed in good faith, and without evil subtilty. Given under our hand, in the presence of the witnesses above named, and many others, in the meadow called Runingmede, between Windsor and Staines, the 15th day of June, in the 17th year of our reign.

The translation here given is that published in Sheldon Amos's work on _The English Const.i.tution_. The translation given by Sir E.

Creasy was chiefly followed in this, but it was collated with another accurate translation by Mr. Richard Thompson, accompanying his _Historical Essay on Magna Charta_, published in 1829, and also with the Latin text. "The explanation of the whole Charter," observes Mr. Amos, must be sought chiefly in detailed accounts of the Feudal system in England, as explained in such works as those of Stubbs, Hallam, and Blackstone. The scattered notes here introduced have only for their purpose to elucidate the most unusual and perplexing expressions. The Charter printed in the Statute Book is that issued in the ninth year of Henry III., which is also the one specially confirmed by the Charter of Edward I. The Charter of Henry III.

differs in some (generally) insignificant points from that of John.

The most important difference is the omission in the later Charter of the 14th and 15th Articles of John's Charter, by which the King is restricted from levying aids beyond the three ordinary ones, without the a.s.sent of the 'Common Council of the Kingdom.' and provision is made for summoning it. This pa.s.sage is restored by Edward I. Magna Charter has been solemnly confirmed upwards of thirty times. See the chapter on the Great Charter, in Green's _History of the English People_. See also Stubbs's _Doc.u.ments Ill.u.s.trative of English History_. "The whole of the const.i.tutional history of England,"

says Stubbs, "is a commentary on this Charter, the ill.u.s.tration of which must be looked for in the doc.u.ments that precede and follow."

"CONFIRMATIO CHARTARUM" OF EDWARD I.

1297.

I. Edward, by the grace of G.o.d, King of England, Lord of Ireland, and Duke Guyan, to all those that these present letters shall hear or see, greeting. Know ye that we, to the honour of G.o.d and of holy Church, and to the profit of our realm, have granted for us and our heirs, that the Charter of Liberties and the Charter of the Forest, which were made by common a.s.sent of all the realm in the time of King Henry our father, shall be kept in every point without breach. And we will that the same Charters shall be sent under our seal as well to our justices of the forest as to others, and to all sheriffs of s.h.i.+res, and to all our other officers, and to all our cities throughout the realm, together with our writs in the which it shall be contained that they cause the foresaid Charters to be published, and to declare to the people that we have confirmed them in all points; and that our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said Charters pleaded before them in judgment in all their points; that is to wit, the Great Charter as the common law, and the Charter of the Forest according to the a.s.size of the Forest, for the wealth of our realm.

II. And we will that if any judgment be given from henceforth, contrary to the points of the Charters aforesaid, by the justices or by any other our ministers that hold plea before them against the points of the Charters, it shall be undone and holden for naught.

III. And we will that the same Charters shall be sent under our seal to cathedral churches throughout our realm, there to remain, and shall be read before the people two times by the year. IV. And that all archbishops and bishops shall p.r.o.nounce the sentence of great excommunication against all those that by word, deed, or counsel do contrary to the foresaid Charters, or that in any point break or undo them. And that the said curses be twice a year denounced and published by the prelates aforesaid. And if the prelates or any of them be remiss in the denunciation of the said sentences, the Archbishops of Canterbury and York for the time being, as is fitting, shall compel and distrain them to make that denunciation in form aforesaid.

V. And for so much as divers people of our realm are in fear that the aids and tasks which they have given to us beforetime towards our wars and other business, of their own grant and goodwill, howsoever they were made, might turn to a bondage to them and their heirs, because they might be at another time found in the rolls, and so likewise the prises taken throughout the realm by our ministers; we have granted for us and our heirs, that we shall not draw such aids, tasks, nor prises into a custom, for anything that hath been done heretofore, or that may be found by roll or in any other manner.

VI. Moreover we have granted for us and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy Church, as also to earls, barons, and to all the commonalty of the land, that for no business from henceforth will we take such manner of aids, tasks, nor prises but by the common consent of the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed.