tution of defined. nities of the people as a whole, regardless of their division into classes or orders. First among the provisions of this latter class stand out the great constitutional clauses which relate to the organization and powers of the national council, to the procedure of the king's court, and to the general administration of justice. The process has already been drawn out through which the Old-English national assembly was gradually and silently transformed, during the Norman and Angevin reigns, into a council of feudal tenants-inchief. The definite results of this process of change are clearly set forth in a legal shape in that part of the Great Charter which describes the elements of which the common council of the kingdom shall be composed, and the method by which those elements shall be brought together for national action. The constituent elements of the national The consticouncil are defined to be the whole body of the king's tenants- the national in-chief. Out of this body the archbishops, bishops, abbots, council earls, and greater barons shall be summoned by a royal writ directed to each one personally; the remainder the lesser tenants-in-chief — shall be summoned in a body by a general writ addressed to the sheriff of each shire, in which writ shall be stated the time and place at which, and the cause for which the national council shall be called together.1 The right of the council thus organized to consent to taxation is No taxaclearly and distinctly recognized. No scutage or aid, other tion withthan the three regular feudal aids, shall be imposed but by sent. the common counsel of the nation; and this common counsel can only be taken in a national assembly summoned in the manner which the law directs. The immemorial right of the national assembly to join with the king in ordaining taxes a right which even during the Norman and Angevin reigns had never been entirely ignored was thus stated with a precision and clearness for which the nation itself seems to have been hardly prepared. In the many confirmations of the charter which followed during the succeeding reign, these vital clauses as to taxation and the national coun 1 Art. 14. 2 "Nullum scutagium vel auxilium ponatur in regno nostro, nisi per com - mune consilium regni nostri," etc.— 3 That direction is embodied in art. out its con system. cil were invariably omitted. Not until the latter part of the reign of Eadward I. was the right of self-taxation which they embodied finally restored, as a part of the "Confirmatio Cartarum," to a permanent place in the constitution. Reforms in The fact that the king's court was held in no fixed place the judicial inflicted the greatest possible inconvenience and expense upon those suitors involved in common pleas who were obliged to follow its migrations. In the history 2 of the plea of Richard d'Anesty, which "followed the person of the king" for five years, and which imposed on D'Anesty nearly thirty different journeys, may be found, perhaps, an extreme illustration of the evils to which suitors were exposed. To remedy these evils, the charter provides that common causes between party and party shall be tried in some fixed place; that common pleas shall no longer follow the person of the king. In order to expedite the administration of justice in the shires, it was also provided that two justices shall be sent four times a year through each county, who, together with four knights chosen by each county court for that purpose, shall take the recognitions of novel disseisin, mort d'ancester, and darrein presentment in their proper counties.1 It was further provided that no sheriff, constable, coroner, or bailiff of the king shall hold pleas of the crown; 5 and that no one shall be appointed a justice, constable, sheriff, or bailiff except such as are learned in the law and intend duly to observe it. The double purpose of these provisions was to strip the sheriffs of judicial functions, and at the same time to save those charged with criminal offences from trial before unfair and incompetent officers. In addition to these provisions touching the character and appointment of judicial officers, the framers of the charter were careful to announce a series of practical rules, both general and special, for the government of all courts in the administration of justice. First among these general rules stand the famous clauses which provide that 1 Cf. Stubbs, Const. Hist., vol. i. p. 534. 2 See Palgrave, Eng. Commonw., vol. ii. pp. ix.-xxvii; Sir James F. Stephen, Hist. Crim. Law, vol. i. p. 88 seq. 8 "Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo."-Art. 17. As to the history of this clause in its relation to the curia regis, see Madox, Hist. Exch., principles istration of ments. "no freeman shall be taken, or imprisoned, or disseized, or General outlawed, or exiled, or anywise destroyed; nor will we go to govern upon him, nor send upon him, but by the lawful judgment of his peers or by the law of the land. To none will we sell, to justice. none will we deny or delay, right or justice."1 Among the special provisions touching particular branches of judicial administration, the following clauses may be cited. In order to restrain the king from the wanton or tyrannical imposition Amerceof amercements, the pecuniary fines laid on those who had offended against the royal prerogative, it was provided that the freeman shall only be amerced according to his fault, saving to him the means of maintenance; and in like manner the merchant, saving to him his merchandise; and also the villein, except he be the king's villein, saving to him his wainnage. No amercement shall be assessed in any case but by the oaths of honest and lawful men of the neighborhood.2 Clerks shall only be amerced in proportion to their nonecclesiastical property. Earls and barons shall be amerced according to the offence, but only by the judgment of their peers. As a protection to the local jurisdictions it was pro- Writ of vided that the use of the writ of præcipe should be limited.5 præcipe. In a case involving life or limb, nothing shall be given or Writ of intaken for the writ of inquisition, which shall be granted freely. No bailiff shall henceforth force a man to compurga- Criminal tion or ordeal unless the accusation is supported by credible accusations. witnesses. No man shall be taken or imprisoned upon the 3 1 "Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum vel per legem terræ."- Art. 39. "Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.' Art. 40. The "judicium parium does not refer, as has been erroneously supposed, to trial by jury, but to trial by members of the feudal and county courts. In this formula was embodied a principle which lay at the foundation of all Teutonic law; a principle which two centuries before had been an nounced, in an edict of Conrad II., in these terms: "Nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium quisition. of the king's debts. appeal or accusation of a woman for the death of a man Intestates. other than her husband.1 When any freeman shall die intestate his chattels shall pass to his next of kin, subject to the claims of the church and the rights of his creditors.2 In Collection order to restrain the severity with which debts due to the crown were exacted, it was provided that less oppressive means should be used for their collection; and also for the collection of debts due to the Jews, in which debts the crown possessed a contingent interest. If, however, the king's debtor dies, no part of his chattels shall be removed until the royal demand is fully satisfied.5 In mitigation of abuses. The forest which arose out of an undue expansion of the forest code, it was provided that the forest courts should not compel the attendance of those who were not directly concerned in the forest jurisdiction.6 code. Miscellane ous pro visions. Articles of a temporary nature. As a limitation upon the royal right of purveyance it was provided that the royal officers shall pay cash for all provisions taken by requisition; and that neither sheriff nor bailiff shall take a man's horse or cart, or his wood, for the king's use, without the consent of the owner.8 Weights and measures shall be uniform throughout the kingdom.9 All forests made in the present reign shall forthwith be disforested, and all rivers placed in fence shall be thrown open. 10 All weirs in the Thames and Medway, and throughout England, except upon the seacoast, are to be removed.11 All evil customs concerning forests and foresters, sheriffs and their officers, rivers and their keepers, shall be inquired into in each county by twelve sworn knights, and forthwith abolished. 12 In addition to the clauses of a general and permanent nature which have now been summarized, the charter contained others of a temporary character, designed to remedy special abuses which had arisen out of recent events. All hostages and charters given to the king by his English subjects as securities for the peace shall be given up; 13 and, as soon as peace is restored, all foreign mercenaries shall be sent out of the kingdom,1 and all who have been disseized or exiled shall be forgiven and recalled. To the Welsh, who have been illegally disseized or dispossessed, restitution shall be made and justice done according to law.3 The Welsh princes held as hostages shall be released, and the rights of the king of Scots shall be recognized.* for the en of the char That the nation was fully impressed with John's faithless- Guarantees ness, is made manifest by the provision for the enforcement forcement of the treaty in the event of a breach of any of its provisions ter. upon the part of the king. The enforcement of the charter is committed to twenty-five nobles to be chosen from the whole baronage. In the event of a failure upon the part of the crown or its officers to perform any of its terms, the duty is cast upon four barons, to be chosen out of the five-andtwenty, forthwith to lay the grievance before the king. If he shall fail to do justice in due time, then the twenty-five barons, together with the community of the whole realm, "communa totius terra," are authorized to levy war upon him, to distrain and distress 5 him, until the compact is kept and justice done. The charter concludes with an oath upon Conclusion. the part of the barons and upon the part of the king, that all the articles of the agreement shall be observed in good faith, and according to their true meaning. The coalition which coerced John into the execution of the charter trusted but little, however, to the good faith of a king whom no oath could bind. The only real guarantee that the principles which the charter defined should enter into the actual administration of government lay in the fact that, in the event of a breach of the compact upon the part of the charter the king, the legal right of resistance remained to the nation marks the beginning, in arms. The great act of the "Parliament of Runnymede" marks the beginning, not the end, of a conflict. It embodies, Signing of not the end, flict. of a con |