Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Amerciaments come from the word mercy, and are so called from the words in the record, sit in miserecordia pro falso clamore suo, and were properly, though the word hath been since extended, what a plaintiff or defendant that had troubled the king’s courts should pay by way of punishment for maintaining an unjust suit; whereas fines, to which they bear a resemblance, and with which they have sometimes been confounded, were for offences, and assessed by the court; as were amerciaments also sometimes, and very grievously, though entirely against law. This act restores the common law; orders the amerciaments to be proportioned to the nature of the case, and also, in regard to the man’s circumstances, so that he should not be ruined thereby; that no freeholder should be amerced in so heavy a manner as to destroy his freehold; no merchant, his merchandize; no villain, his carts, whereby he would be unable to do his lord’s services; no ecclesiastic according to the value of his benefice, but only according to his lay property. And that this might be constantly observed, the amerciaments were to be asserted, or settled by the man’s peers. It may be asked, what remedy had the man, who was too severely amerced by his peers? On this act was grounded the writ of moderata miserecordia, whereby this amerciament may be tried by another jury, and moderated.

The fifteenth provides, that none should be distrained to repair bridges, or landing places, but who are bound by their tenures or custom. The sixteenth for the free navigation in rivers, and unloading of goods. The seventeenth takes away the power of trying pleas of the crown from sheriffs, constables and coroners, and other inferior officers; a very necessary law, upon account of the great value of the life of an individual, especially as none but the king’s courts could give the benefit of clergy. However, sheriffs and coroners can take indictments; for that is not trying, but bringing the matter into a method of trial. The eighteenth concerns debts due to the king where his debtor is dead. By this law, the first duty of executors is to pay the debts of the deceased; those of the highest nature, not as to value, but in quality, in the first place, then the lower ones: and if the effects were not sufficient, it was in their option to pay one creditor of the same nature without another, so that they observed the rule of not paying the lower debtor before the higher. But the king, be his debts of what nature they would, by his prerogative, had the preference of all creditors, and by colour hereof his officers often seized and embezzled the effects of the deceased, to the prejudice of other creditors and legatees. This orders the sheriff to attach and value the goods by a jury of twelve men, to the value of the debt, which were to remain unremoved, till the king was paid; and then the whole, or, if not, the overplus, to be restored to the executors. The two next are feudal. The twenty-first relates to purveyorship, which has been abolished.

The twenty-second relates to the king’s right to the lands of felons. On which there is something curious to be observed. By attainder of felony, the goods and chattels of the felon are forfeited to the king, and the land to the lord from whom they were holden; but in case of treason, both were forfeited to the king. Such was the feudal law; but by the law of England, in order to deter persons from committing felony, and to make the lords more careful what kind of tenants they chose, the king had an interest in the land of felons; not for his own benefit indeed, but for the terrifying by example. He had a right to commit waste in them, to cut down the trees, to demolish the houses and improvements, and to plow up the meadows; and for this purpose he was allowed, by common law, a year and a day. To prevent this destruction, the lords, to whom the land escheated frequently, by a fine, bought off the king’s right of waste; but if they did not, his officers would take the profits for the time, and then hold it longer, till they had committed the waste. This act prohibits the retaining the land longer than a year and a day, and directs that then it should be restored to the lord. This new law was certainly intended for the public good, to prevent this malicious wasting, which the king’s officers would be sure to commit, if they were not properly, as they thought, considered; and to give the king, in lieu of the waste that he had a right to make, a lawful profit, which his officers had unlawfully, to their own use, we may be sure, extorted before. It gives the custody of the lands for that time, and consequently the profits. But observe the consequence.

The king now had the custody, as also the profits, by a legal title for a year and a day, unless the lord pleased to compound with him, and so intitle himself to the immediate possession. But this did not satisfy the greediness of the officers of the crown. It was easy to gather the profits until very near the time the king’s right expired, and then, for a week or fortnight before it was out, they had it in their power to commit waste enough, if the lord, who was intitled by the escheat, did not buy them out. This was certainly against the spirit of the law whereof we are speaking, which was intended to give the king a real profit, instead of a right destructive to the community in general; but the waste was not prohibited expressly, and this was pretext enough for these officers to exact composition for not doing it within the year. It was accordingly claimed and paid, and accounted for as due to the king, on that old maxim, That general laws do not change the prerogative royal, but by express words. This was the doctrine and practice in the courts of the third Henry, and convenient enough for him, who was always indigent. But what was the opinion of the lawyers of that age, we may learn from Bracton, Britton, and the author of Fleta; the first of which wrote in the latter end of this reign, and the other two in the reign following. Bracton says expressly, that “the king’s power over the lands of felons convicted, was because he had a right to throw down the buildings, unroot the gardens, and plow up the meadows; but because such things turned to the great damage of the lords, it was provided, for common utility, that such houses, gardens, and meadows should remain, and that the king for this should have the advantage of the whole land for a year and a day, and so every thing should return entire to the lord. Then he goes on, but now both is demanded, namely, a fine for the term, likewise for the waste, nor do I see the reason why[391].” Thus far Bracton. Britton says, speaking in the person of the king, of felons, for in that manner his book is written, “Their moveables are ours; their heirs are disinherited; and we will have their tenements, of whatsoever holden, for a year and a day, so that they shall remain in our hands that year and day, and that we shall not cause to perish the tenements, nor hurt the woods, nor plow the meadows, as hath been accustomed in time past[392].” Fleta talks in the same strain, in commenting on this law of Magna Charta, which he expressly quotes, that, as a mark of brand on felony, it had been antiently provided that the houses should be thrown down, and so goes on to enumerate the other species of waste, which I need not here repeat, as I have mentioned them already; and then he says “because by such doings great damage would accrue to the lords of the fiefs; for common utility it was provided, that such hardships and severities should cease; and that the king, in consideration thereof, should, for a year and a day, enjoy the commodity of the whole land; after which term it should return to the lords of the propriety entirely, without waste or destruction[393].” The Mirror, another antient law-book, joins with these; and this book, which was written in the same reign of Edward the first, or, at the latest, in that of his son, says, “the point of felons lands being held for the year is disused; for by that, the king ought not to have but the waste by right, or the year, in name, (that is, in nature) of a fine; to save the fief from estrepement (that is, waste), the ministers of the king take both the one and the other[394].” A melancholy consideration, that, under his name, and in pretence of his profit, though not really to his advantage, such a law should, for their own profit, be eluded by his ministers; as by these testimonies, one cotemporary, and the rest immediately subsequent, we are informed it was contrary to the intention of this chapter of Magna Charta; but the practice prevailed for a long time after. I shall conclude this lecture with the words of Lord Coke on this chapter of Magna Charta. “Out of these old books you may observe, that when any thing is given to the king, in lieu or satisfaction of an antient right of his crown, when once he is in possession of the new recompence, and the same in charge, his officers and ministers will many times demand the old also, which may turn to great prejudice, if it be not duly and discreetly prevented[395]”.

LECTURE XXXIX.

Continuation of the commentary on Magna Charta.

The twenty-third chapter of Magna Charta prohibits fish weires in rivers, which are great annoyances to navigation, and the free liberty of fishing; and which have stood their ground in spite of all the laws that can be made against them. The next relates to the inferior courts of Lords of Manors, and to writs of Præcipe in capite; which having gone into disuse, with the feudal tenures, I shall pass them over. The twenty-fifth orders, that measures and weights should be one and the same through the whole kingdom; witness the difference between Troy weight and Averdupois; the wine gallon and ale gallon. Established customs, which of necessity must come into daily practice, are hard to be rooted out by positive laws; and indeed it is more prudent to let them continue. For the confusion that such an alteration of things in daily or hourly practice would occasion, would be more detrimental, for a considerable time at least, than the uniformity intended to be introduced would be attended with advantage[396].

The twenty-sixth is concerning the writ De odio et atia, that is, of hatred and malice; which, though not abolished, hath long since been antiquated; but, as it was an antient provision for restoring the liberty of the subject, I shall take some notice of it. It was a maxim of the common law, that no man imprisoned for any offence, which, if proved, would touch his life or members, could be bailed out but by the supreme criminal court, the King’s Bench; which, upon danger of death, or such other special causes as appeared sufficient to them, had that power. Hence, in those unsettled and oppressive times, it became a practice for malicious persons to have a man clapped up in prison for a capital offence, without either indictment or appeal brought against him; and there he was of necessity to lie, until the justice in eyre came into the county to deliver the gaols, which regularly was but once in seven years; to avoid this hardship, the writ we are now speaking of was invented, and issued out from time to time, as occasion required, out of the Chancery. Besides, by this chapter of Magna Charta, it is ordered to be granted without any purchase or reward; whereas, before, all the original writs were purchased at the price the chancellor pleased to set on them, which was a grievous oppression. It ordered the sheriff to make inquisition in the county court, by the oath of a jury, whether the imprisonment proceeded from malice or not. If they found it did, upon its return, the person accused had a right to a writ, ordering the sheriff to bail him by twelve manucaptors, or securities. But, this was only where there was no indictment, or appeal; for these were accusations of record, and therefore the finding the charge malicious in the county court, which was no court of record, could not avail against them. This, writ has gone into disuse, since justices of gaol-delivery have continued to go into every county twice a year; a proceeding which has evidently superseded the necessity of it[397].

The twenty-seventh chapter restrains the unjust practice in the king, of arrogating to himself the wardship of his socage or burgage tenants, where they held lands by military service from others, his subjects. The whole military system hath since been dissolved by act of parliament, and therefore it will be unnecessary for me to explain or enlarge upon the nature of the mischief complained of in this chapter. The next forbids any judge or officer of the king to oblige a man to wage his law, that is, swear to his innocence, except in a cause where a suit was instituted against him; but wager of law, being now totally fallen into disuse, I hasten to the twenty-ninth chapter, the corner-stone of the English liberties, made in affirmance of the old common law[398].