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
This is a clear misinterpretation of the intention of Magna Carta. The
Exchequer never “followed the Crown”; it stayed at Westminster where its
offices, tallies, and pipe rolls were. The Charter would have expressed
itself in widely different words if it had desired to exclude common
pleas from the Exchequer. The _Articuli super Cartas_, however,
attempted what the Charter of 1215 did not. After 1300 it was clearly
illegal to hold any pleas in the Exchequer, unless such as affected the
Crown and its ministers. Subsequent statutes confirmed this; but their
plain intention was always defeated by the ingenious use of legal
fictions and the connivance of the Barons of Exchequer, who welcomed the
increase of their fees which kept pace with the increase of
business.[546]
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Footnote 546:
The fiction of “Crown debtors” is well known: plaintiffs obtained a
hearing in the Exchequer for their common pleas by alleging that they
wished to recover debts due to them “in order to enable them to answer
the debts they owed to the king.” See Madox, II. 192.
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The evil directly attacked by Magna Carta was something quite
different—an evil wider, more pressing and less technical, namely, the
practice of causing ordinary litigants, with their legal advisers and
witnesses, to dance attendance on a constantly moving court.
CHAPTER EIGHTEEN.
Recogniciones de nova dissaisina, de morte antecessoris, et de ultima
presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos,
vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus
duos justiciarios per unumquemque comitatum per quatuor vices in anno,
qui, cum quatuor militibus cujuslibet comitatus electis per comitatum,
capiant in comitatu et in die et loco comitatus assisas predictas.
Inquests of _novel disseisin_, of _mort d’ancestor_, and of _darrein
presentment_, shall not be held elsewhere than in their own
county-courts,[547] and that in manner following,—We, or, if we should
be out of the realm, our chief justiciar, will send two justiciars
through every county four times a year, who shall, along with four
knights of the county chosen by the county, hold the said assizes[548]
in the county court, on the day and in the place of meeting of that
court.
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Footnote 547:
“_Comitatus_” indicates both the county where the lands lay and the
court of that county. It was originally the sphere of influence of a
comes or earl. Cf. _supra_, c. 2, (p. 238, n.)
Footnote 548:
“The _said_ assizes” were previously called, not assizes but
“inquests” (_recogniciones_), a wider term of which the three petty
assizes here named were three special applications.
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Public-domain text, read in full here on John Shaqi.
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