CHAPTER NINE.
Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad solucionem debiti; et si capitalis debitor defecerit in solucione debiti, non habens unde solvat, plegii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris, donec sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem plegios.
Neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties.
The Charter now passes to another group of grievances. Chapters 9 to 11 treat of the kindred topics of debts, usury, and the Jews, and should be read in connection with each other, and with chapter 26, which regulates the procedure for attaching the personal estate of deceased Crown tenants who were also Crown debtors. The present chapter, although quite general in its terms, had special reference to cases where the Crown was the creditor; while the two following chapters treated more particularly of debts contracted to Jews or other money lenders.
The fact that John’s subjects owed debts to his exchequer did not, of course, imply that they had borrowed money from the king. The sums entered as due in the Rolls of the Exchequer represented obligations which had been incurred in many different ways. What with feudal incidents and scutages, and indiscriminate fines, so heavy in amount that they could only be paid by instalments, a large proportion of Englishmen must have been permanently indebted to the Crown. At John’s accession most of the northern barons still owed the scutages demanded by Richard. John remitted none of the arrears, while imposing new burdens of his own: the attempts made to collect these debts intensified the friction between John and his barons.[[437]] It was, further, the Crown’s practice wherever possible, to make its debtors find sureties for their debts, thus widening the circle of those liable to distraint, while the officers who enforced payment were guilty of irregularities, which became the cloaks of grave abuses.
Three equitable rules were laid down. (1) The personal estate of a debtor must be exhausted before his real estate or its revenues were attacked. To take away his land might deprive him ultimately of his means of livelihood, since the chattels left to him could not yield a permanent revenue.[[438]] The rule here laid down by Magna Carta has not found a place in modern systems of law, which usually leave the option with the creditor. (2) The estate (both real and personal) of the chief debtor had to be exhausted before proceedings could be instituted against his sureties. Magna Carta thus enunciated in English law a rule which has found favour in most systems of jurisprudence. The man who is only a surety for another’s debt is entitled to immunity until the creditor has taken all reasonable steps against the principal debtor. Such a right is known to the civil law as beneficium ordinis, and to modern Scots law as the “benefit of discussion.” (3) If these sureties had, after all, to pay the debt in whole or in part, they were allowed “a right of relief” against the principal debtor, being put in possession of his lands and rents. This rule has some analogy with the equitable principle of modern law, which gives to the surety who has paid his principal’s debt, the right to whatever property the creditor held in security of that debt.
Even when the Crown’s bailiffs obeyed Magna Carta by leaving land alone when chattels were available, they might still wantonly inflict terrible hardship upon debtors. Sometimes they seized goods valuable out of all proportion to the debt; and an Act of 1266[[439]] forbade this practice when the disproportion was “outrageous.” Sometimes they attempted to extort prompt payment or to ruin their victim by selecting whatever chattel was most indispensable to him. Oxen were taken from the plough and allowed to die of starvation and neglect. The practice of the exchequer, in the days of Henry II., had been more considerate; oxen were to be spared as far as possible where other personal effects were available.[[440]] John’s charter has no such humane provision,[[441]] and the abuse continued. The Act of 1266, already cited, forbade officers to chase away the owner who came to feed his impounded cattle at his own expense. The Articuli super cartas[[442]] went further; prohibiting the seizure of beasts of the plough altogether so long as other effects might be attached of sufficient value to satisfy the debt.[[443]]
[438]. The Dialogus de Scaccario, II. xiv., had, half a century earlier, laid down rules even more favourable to the debtor in two respects: (a) the order in which moveables should be sold was prescribed; and (b) certain chattels were absolutely reserved to the debtor, e.g. food prepared for use; and, in the case of a knight, his horse with its equipment.
[439]. 51 Henry III., stat. 4 (among “statutes of uncertain date” in Statutes of Realm, I. 197).
[440]. See Dialogus de Scaccario, II. xiv.: “Mobilia cujusque primo vendantur; bobus autem arantibus, per quos agricultura solet exerceri, quantum poterint parcant” (p. 148).
[441]. Cf., however, the rule as to amercements in c. 20.
[442]. 28 Edward I. c. 12. See also Statute of Marlborough, 52 Henry III. c. 15.
[443]. Henry’s reissues make two small additions explaining certain points of detail: (a) the words “et ipse debitor paratus sit inde satisfacere” precede the clause giving sureties exemption; and (b) the sureties are declared liable to distraint, not merely when the chief debtor has nothing, but also when he can pay, but will not, “aut reddere nolit cum possit.”