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Civil Justice in Renaissance Scotland

The King died shortly after The council who ruled in the name of the infant Henry III re-issued the charter in this time with papal assent very much modified in favour of the Crown, with a promise to re-open the question when the French invasion, undertaken at the will of the rebel barons, had been defeated. Hence the successive compromises of and At length, in , Henry III came of age and issued the fourth Great Charter which differed from the third in slight details only.


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This is the document which is still law except in so far as it has been repealed and is cited by the old authors as the charter or statute of the ninth year of Henry III. It was not enrolled until many years later when, in , it was put on the statute roll word for word, except one slight slip , and so is also sometimes cited as the statute Confirmatio Cartarum of 25 Edward I. After all these revisions Magna Carta as it now stands on the statute books of common law jurisdictions is a sober, practical, and highly technical document.

A complete understanding of all its provisions would require a whole volume upon numerous aspects of mediaeval law and administration; for our present purpose the following summary will suffice. We have also given and granted to all the freemen of our realm, for us and our heirs for ever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs for ever Chapter 1; note the formulas of a conveyance of real property which are here used. And moreover we will and grant that all other cities, boroughs, towns. These words have provoked centuries of discussion.

King John himself was tried by his peers in the court of King Philip of France who was his overlord in respect of the lands held by John in France.

Common law

In certain cases an English peer could claim to be tried by members of the House of Lords, either in Parliament or in the Court of the Lord High Steward. As time went on the phrase was given a newer and wider meaning. We find for example that a knight accused of felony will claim successfully a jury composed of knights. The numerous feudal incidents of relief, wardship, marriage, and the rights of widows, were regularised to prevent the oppression which had grown up during the reign of King John.

These reforms applied also to the relations between the barons and their undertenants, and form the basis of a great deal of feudal law. Purveyance and the forfeiture of lands for felony were likewise regulated. The taking of the assizes was ordered for regular terms every year and was to be in the proper counties.

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Sheriffs was forbidden to hold pleas of the Crown. The County Court was also regulated and ordered to be held not more than once a month. The rights of widows were protected and landowners were forbidden to alienate so much of their land that the lord of the fee suffered detriment; and finally, collusive gifts to the Church which were frequently made in order to evade feudal service were forbidden.

There was to be one system of weights and measures throughout the land, and foreign merchants were to be allowed free entry except in war-time, their treatment depending upon the treatment of English merchants abroad. From this it will be seen that the provisions of the Great Charter which became permanent were those of a practical nature, while the revolutionary machinery invented by the barons to supersede the Crown was quickly dropped as unworkable and contrary to the current of English history. The Great Charter was by no means unique in European history. Many kings and nobles about this time were granting charters to their tenants and subjects, and their general character was not dissimilar even in different countries.

It has even been suggested that Spanish influence can be traced in our own Charter. The Charter gradually grew bigger than the mere feudal details which it contained and came to be a symbol of successful opposition to the Crown which had resulted in a negotiated peace representing a reasonable compromise.

PREFACE TO THE FIFTH EDITION

As time went on, therefore, the Charter became more and more a myth, but nevertheless a very powerful one, and in the seventeenth century all the forces of liberalism rallied around it. The great commentary upon it by Sir Edward Coke in the beginning of his Second Institute became the classical statement of constitutional principles in the seventeenth century, and was immensely influential in England, America and, later still, in many other countries as well.

Its immediate result, apart from the reforms contained in it, was to familiarise people with the idea that by means of a written document Edition: current; Page: [ 26 ] it was possible to make notable changes in the law. Within the period of ten years, four successive charters had made numerous changes in law and procedure.

Was not this an indication that many other difficult questions might be settled in a similar manner?

And as a matter of fact we soon find a stream of legislation beginning to appear, which we shall describe later. The rest of the reign of Henry III is notable chiefly for the revolt of the barons in , which repeats the main outlines of the revolt against King John. The results also were similar. A revolutionary organisation was set up by the barons with the idea of reducing the Crown to complete powerlessness; and this, like the previous attempt in , had soon to be abandoned.

But in this later struggle the barons had been dependent to a considerable extent upon the assistance of smaller landowners who also had to be satisfied by a measure of reform. Recent work on this period has shown how largely it was concerned with legal problems, and to lawyers there are two especial reasons for studying the baronial revolt with care. First, it was the age of Bracton, 1 who ceased to revise his great treatise just as the crisis approached; and secondly, it was the one occasion in English history when the laity carried out vi et armis an important and complicated programme of law reform.

Many of the reforms the victorious barons effected were continued after the fall of Simon de Montfort and became the Statute of Marlborough, Even before his accession Prince Edward took part in this post-war period of reconstruction, and the Statute of Marlborough is therefore really a part of the great programme of law reform which was carried out in the reign of Edward I. We now come to a period of steady growth in the common law covering just over a century and a quarter The reign of Edward I is marked by one of the greatest outbursts of reforming legislation in English history until the nineteenth century.

The Statute of Gloucester made important amendments to the law of land, especially on the subjects of waste, curtesy and dower. The next year the great Statute of Mortmain did something to check the feudal losses which resulted when land was given to churches, monasteries and corporate bodies, by completely forbidding all amortisation. This statute is so long that it almost amounts to a short treatise on the state of the law in ; its practical interest to historians is therefore considerable, for it contains information which is difficult to find elsewhere.

The next year saw an astonishing series of epoch-making statutes. Of these the first was the second Statute of Westminster, which leaves hardly a single department of the law untouched. Of its fifty chapters, the first is the famous De Donis of which we shall have much to say later on, for it lies at the foundation of the idea of legal estates in land.

Professor Hector MacQueen

Among many others are the following important provisions. The common mode of fraudulently conveying land by allowing judgment to go by default in a collusive action brought for the purpose was checked c.

By chapter 11 a very stringent process was created for the action of account. In its origin it dealt with the relationship of the lord of a manor to his bailiff or estate manager, but as history proceeds it becomes a commercial as well as a feudal action, and the regular remedy lying between partners. Equally drastic is the penalty upon the sheriff or gaoler if such a prisoner escapes, for in such a case the gaoler shall be liable to the lord in the same sum as the accountant was.

This perhaps is a reflection of the insecurity of mediaeval prisons, which were by no means so massive as is sometimes thought. Here indeed is laid down a regular procedure for the steady expansion of the law by the enlargement of the available writs in certain narrowly defined circumstances.

Its primary object was to authorise the extension of remedies which already existed between parties, so that they would become available between the heirs or successors in office of those who would primarily have been entitled to use them. It is clear that the Edition: current; Page: [ 29 ] Chancery clerks did not regard this statute as giving them wide powers of creating new forms of action, for where we find the chapter invoked at all and it is not very often it is used with great caution. The only serious extension of the law as a result of the statute was the creation of the writ of entry in consimili casu.

In the fourteenth century, moreover, parliamentary proceedings were often extremely informal, and are by no means always recorded on the rolls; consequently it is most likely that these statutory powers were exercised, if at all, by the little group of administrators and lawyers who formed the kernel of the fourteenth-century Parliaments.

Very soon, however, the statute rolls seem regularly to contain express declarations in legislative form as to the extension of old writs to new cases, and it may well be that the form of a statute was chosen because the publicity attaching to it made the reform more quickly effective.

Chapter 31 relates that it sometimes happens that parties who allege an exception which the court overrules have difficulty when they attempt to test the lawfulness of the decision by a writ of error, because the court may not have enrolled the unsuccessful exception. The higher court is therefore unable to pass upon the matter because it is not on the record before them. Chapter 30 regulated the new system of nisi prius justices, who become more important in practice as a result of many succeeding statutes amending the system in details.

In this way it became less necessary for juries from remote parts of the country to undertake the slow and costly journey to Westminster. In the same year the Statute of Winchester established a system of police by compelling citizens to possess armour according to their means Edition: current; Page: [ 30 ] for the defence of the peace.

Then the Statute of Merchants also of established a system of recording debts and of making land liable to execution, which lasted down to the eighteenth century with some modifications. It was on this occasion that the Great Charter was first enrolled among the public archives.

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This is the belief of many historians, expressed in several different forms, that there was something anti-feudal in his policies. It would indeed be a remarkable tribute to the intellectual powers of Edward I if it could be shown that he set his face against the whole pattern of contemporary society as it existed throughout civilised Europe. The demand for a new social structure is common enough in our own day because we have numerous examples, both contemporary and in the history of the last two generations, of revolutionary attempts to remodel society on the lines of military and economic dictatorships, communes, soviets and the like.

But it is hard to imagine a statesman of the year suggesting an alternative to the social structures over which three such legal-minded monarchs as Edward I, Philip the Fair and Boniface VIII presided. Lords must have been grateful for two statutes which gave Edition: current; Page: [ 31 ] them immense power over their bailiffs; 1 the feudal rights of wardship and marriage were protected by new civil and criminal procedures; 2 the default of tenants in paying services which at this moment left the lord in a very weak position was for the future visited with the forfeiture of the tenement; 3 and lords were also given extended powers of appropriating commons.

Edward I certainly did a great deal for the feudal lord. But he was not prepared to tolerate abuses, and he was equally active in assuring to tenants their rights. Many great statutes defined the law of distress and replevin, 7 and the action of mesne which protected a sub-tenant when his lord defaulted in services to the lord above was made more practicable. The fact that all the incidents of military tenure survived until the sixteenth century, and that the persons interested in them were to enjoy them for an additional century thanks to the statute of uses , is all testimony to the soundness of the legal structure of feudalism as Edward I left it.

Edward assured to the tenant the peaceful enjoyment of his lands with the same impartial justice as he confirmed to the lord the fruits of his seignory. This Statute contains the important declaration that matters relating to the estate of the King and the country must be agreed upon by the prelates, earls, barons and commons in parliament. In any case,. The tragic ending of the reign and the mysterious death of the unfortunate Edward bring us to the reign of his son, Edward III , and a period of fifty years of uneasy tension.

Once again we find the Charters solemnly confirmed in The middle of his reign was marked by a series of fearful calamities which have left their mark upon society and the law. The nation was already weakened by a succession of famines when the arrival of the Black Death from the East wrought a revolution in social and economic conditions. The terrible mortality from this plague completely disorganised the manorial system, which had hitherto depended upon a plentiful supply of labour born and bred within the manor.

The plague accelerated and intensified forces which were already at work, and the result was a very serious depletion of the labour supply. Consequently lords began to compete among themselves for such free labour as was available.