Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
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.
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Footnote 437:
See _supra_, p. 89.
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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.
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Footnote 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.
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Public-domain text, read in full here on John Shaqi.
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