STATUTUM DE MARLEBRIDGE [c].

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52 Hen. III. A. D. 1267.

HIS is the laft ftatute in the long reign of Henry the Third, and

it contains many wife regulations with regard to civil property, which had been in a very precarious ftate during the preceding troublesOf this, if other proof was wanted than the general histories of the times, it would be fufficient to read the Edi&um de Kenilworth, which was made the preceding year, and which is printed in moft editions of the ftatutesThe first chapter relates to diftreffes, which, it hath already been obferved, were most oppreffively ufed-If complaint was made of this oppreffion, the barons infifted upon determining the complaint against their own officers in their own courts, and would not permit the king's courts to hold conufance. It hath already been observed on the twelfth chapter of the statute of Merton, which was made two and thirty years before the prefent law, that the king refused his affent to an attempt of the fame kind, when the barons infifted upon deciding all offences committed in their own forests, and warrens, by their own jurifdictions.-Thofe powers which they could not obtain from the king, they exercised (as it appears by this statute) during the enfuing troubles; and it was high time to put a stop to these enormities and violations of juftice, which was effected by removing the complaint from the court of the Great Baron to thofe of the King, where the judges were indifferent between the oppreffed peafant and the tyrannical lord.

CA P. XI.

Provifum eft etiam, quod nec in itinere juftic', nec in comitatibus, in hundredis, nec in curiis baronum de cetero capientur fines ab aliquibus pro pulchrè placitando,] Lord Coke is very anxious to explain, that this fine was not imposed upon the pleader for his mistake, but that it was payed by the party, for leave to amend a bad plea [d]. He does not however cite any record

[c] Marlebridge, where this parliament was held, is fuppofed to be the fame with the town at prefent called Marlborough, of which there feems to be some reason to doubt, as the terminations are very different. The city of Lincoln, in the old ftatutes, is however always called Nicoll or Nichole, which is a greater variation from the modern name.

[d] The opinion of Lord Coke with regard to this fine pro ftultiloquio, is what he fays in his 2d Inft. p. 122. In the Preface however to his Book of Entries, when he had occafion to be more accurate on this head, he allows that at common law this fine was payed by the pleader, and not by the client-His words are thefe: "Radulphus de Bardfield qui narravit pro filio "Furoldi in mifericordia pro ftultiloquio ;" and cites a record of 5 Hen. III. (adding by way of

or authority in proof of what he afferts, and (pace tanti viri) I should imagine that this fine was payed by the pleader, who was certainly the most in fault--In other countries, advocates have been fubjected to penalties even for prolixity, and particularly by an ordinance of Charles the Seventh of France; as also many to the fame purport by his fucceffors. V. Ord. Royales, Paris 1552. This power of fining for a bad plea however (whether it might be imposed on the party or the advocate) had been undoubtedly much abused, and particularly in the inferior courts, where the fine was payed to the lord. And we find by the nineteenth chapter of the present ftatute, as well as by an article of Magna Charta, that the power of amercing was equally abufed in the inferior courts, and for the fame reason.

CA P. XX.

DE effoniis autem provifum eft, quod in comitatibus hundredis, aut in curia baronum, vel aliis curiis, nullus habeat necesse jurare pro essonio fuo warrantizando.] The Effoyn, being used generally for the purpose of delay, is taken away by almost every modern act of parliament-This indulgence to the defendant had however a reasonable commencement. Few could at this time either read or write, and the communication between one part of the country and another was frequently interrupted [e]; fo that the parties had not often accurate and proper notice of the fuit.

CA P. XXVI.

JUSTICIAR II itinerantes de cetero non amercient villatas in itinere fuo, pro eo quod finguli x11 annorum non venerint coram vicecomitibus et coronatoribus, ad inquifitionem de roberiis, incendiis domorum, vel aliis ad Coronam fpectantibus faciendis. Dum tamen de villatis illis veniant fufficientes, per quos inquifitiones bujufmodi plene fieri poffunt, exceptis inquifitionibus de morte hominis faciendis, ubi comment)" quod inter alia acta publica evincit manifeftè juridicum eâ tempeftate, non clien"tem mul&tatum fuiffe; iniquum enim cenfebatur clientem pœnas luere pro delicto jurecon"fulti, quod fane nihil aliud fuiffe, quam in miferum cumulâffe miferiam"-He then adds, "Dominus Robertus de Willoughby anno 24 Edw. tertii jurifperitos ad feptum curiæ allocu"turus dixit, feo ay view le temps que fi vous uffez plead un erronious plea, que vous alaftes al “prison."-- By a statute of James the Firft of Scotland the advocate is to take the following oath: "Illud juretur, quod lis fibi jufta videtur, "Et fi quæretur, verum non inficietur ;

"Nil promittetur, nec falfa probatio detur,

"Ut lis tardetur, dilatio nulla petetur."

[e] One of the most common Effoyns was antiently, a flood preventing the party's attendance — By roads having been turned, bridges and caufeways built, this accident feldom prevents communication at present.

omnes x11 annorum venire debent, nifi rationabilem caufam habeant abfentiæ fuæ.] It was an antient regulation of police, that every inhabitant of a county, who was above the age of twelve years, fhould attend the sheriff's turn in order to hear the capitula corone read over, and given in charge This, before the establishment of justices in Eyre, was the only opportunity of their being inftructed with regard to the crown law, and it was probably supposed that such a charge would not only be understood by a child above that age, but make a very lafting impreffion-As it was very inconvenient however and expensive for all the inhabitants of a county to attend, the ftatute of Magna Charta very properly confines skalding these tourns [f] (as they are called) of the fheriff to be held only twice in a year; but as whole townships were frequently amerced for neglecting to attend, this statute dispenses with fuch attendance, provided there is a jury, confifting of a fufficient number to punish offenders-It excepts indeed the cafe of murder, which crime the legislature thought it incumbent upon every one to attend either to profecute, or to conceive a just horror of.-There was at this time another great abuse in profecutions for murder, which is regulated by the next chapter; the words are, "Murdrum de cetero non adjudicetur, ubi infortu"nium tantummodo adjudicatum eft; fed locum habeat murdrum de interfellis per feloniam tantum."-The word murdrum is in the common translation very improperly tranflated murder [g], whereas in this place it fignifies a fine imposed upon a township, where (as Bracton expreffes it) occulta hominis occifio intervenerat. If the township did not produce or profecute fuch a murderer, it was but a proper punishment to fine the inhabitants for fuch neglect, or concealment. I have before obferved, that fines impofed

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[f] Magn. Ch. c. 23.-Stiernhook gives the beft account of the fignification of this word tourne or turn―“ Judicia antiquitùs Hwarp dicta fuerunt, quæ vox hodie circuitum, revolutionen, feu "viciffitudinem, figuificat, five quod judicia ad revolutiones folares vel lunares haberentur, five "quod in unum conveniens multitudo judici circumfufa conglomeraretur, five denique quod per vices, facto circuitu finguli territorii, patresfamiliæ ad judicia convenire tenerentur, prout "in antiquo et novello jure præceptum exftat.” Ch. z.-This agrees with the common meaning of the Saxon word torne and English turn, and the sheriff's court fo called was held for these very purposes-The bishop of Dumblain, in Scotland, had a writ on this chapter of the ftatute of Marlebridge. V. Prynne's Records, vol. ii. p. 183.

[g] This word however fignified fometimes, in the old Saxon laws, what we now understand by it-For example, there is a chapter amongst the laws of Canute, De murdro occulte perpetrato. Dec. Script. p. 915.- It were to be wifhed, that the writers of the crown law would call man-flaughter (a word that conveys no precife idea) by the old Saxon word of fehthe (the fame with fight), and which therefore fignifies what is now meant by the word man-flaughter, i. e. the killing a man upon a fudden provocation which occafions a fight or fcuffle-By the law of Scotland there is no fuch thing as man-flaughter, nor by the civil law; and therefore a criminal indicted for murder, under the ftatute of Henry the Eighth, where the judges proceed by the rules of the civil law, muft either be found guilty of the murder, or acquitted.

by

by the sheriffs was antiently one of the great branches of the king's revenue; and we therefore find that the power was always perverted from the purpofe of justice, to the filling the king's coffers, especially if there was an opportunity of fining a whole district, as fuch fine was proportionably larger. If a man therefore was killed per infortunium tantum [b], as the ftatute expreffes it, the townfhip was equally amerced, as if a fecret and concealed murder had been committed.

CA P. XXIX.

SI clericus aliquis pro crimine aliquo, vel retto, quod ad coronam pertineat, areftatus fuerit, et poftmodum per preceptum domini regis in ballivum traditus [fuerit] vel replegiatus extiterit, ita quod hii quibus traditus fuerit in ballivum, eum habeant coram jufticiariis, non amercientur de cetero illi quibus traditus fuerit in ballivum, nec alii pleg' fui, fi corpus fuum habeant coram jufticiariis, licet coram eis propter privilegium clericale refpondere noluerit, vel non potuerit propter ordinarios fuos.] When the great dispute first began between Henry the Second and Thomas of Becket, it arose from this privilege claimed by the clergy (or rather the archbishop), which that wife king endeavoured to abolish. The arguments pro and con may be feen in Stephanides's Life of Thomas of Becket, who was his archdeacon, and prefent at the affaffination. It is not only the curious anecdotes which commend this life of Thomas of Becket, but the ftyle, which is in fome parts indeed too figurative, but fhews a very familiar knowledge of the claffical poets.-The Latinity of the writers, during the reign of Henry the Second, was more pure than in many of the following ones-It hath indeed been too generally prefumed, that the monks of these times were ignorant of claffical learning, from Caxton fpeaking (in one of his Prefaces) of Virgil's Aneis as a ftory then hardly known, and without any commendation of the poetry; but it appears by Stephanides, that there were fchools in London during the reign of Henry the Second, in which he says, that the scholars daily torquent enthymemata (an expreffion which fhews he was well verfed in

[b] The law of Spain is fo far from allowing a forfeiture in a cafe of accident or felf-defence (of which there feems to have been fome doubt amongst our writers on the crown law), that it exhorts every one to make ufe of it, “ ca meyor mientre que vive que fe defenda que dexar que lo "venge depoys fu morte." Fuer. Jufg. p. 330.- for it is better that he should defend himself when alive, than to leave it to others to avenge him when he is killed-Self-defence is indeed forbid by the law of Japan; Kempfer (who from his two years refidence in that country mat have been well informed) fays, that if the aggreffor is killed, the perfon killing muft equally fuffer, having only permiffion to kill himfelf-The Japanefe are not only toto divifos orbe by fituation; they are ftill more fo by their laws and cuftoms.

Juvenal)

Juvenal [i]); from which and many other circumftances it may be inferred, that this king was not undefervedly ftyled Beauclerk.

I have now made fome obfervations upon nearly all the ftatutes of the reign of Henry the Third [k]; and as they are the most authentic materials, upon which any hiftory can be founded, I cannot but fay, that he by no means deferves to be confidered in fo contemptible a light, as he hath generally been reprefented [/]-The truth is, that, in the earlier parts of the history of any country, we are apt to read it as a romance, in which he who fights the greatest number of battles in perfon, is the hero of the tale, and the wonder of the reader.

The reign of Henry was not fet off with the glare of conqueft, but as a legiflator he certainly had uncommon merit; and if it is alledged, that the confirmation of the two Great Charters was extorted from him, the laws against the oppreffion of Revenue-officers [m], and the wife and beneficial regulations of the ftatutes of Merton and Marlebridge in oppofition to the tyranny of the barons, must be allowed to him on the other fide of the ac

[k] All except the two ftatutes entitled the Dies Communes in Banco.

[] It is not by this intended to infinuate that he was a perfect character, or a truly great king, but only that his difpofition feems to have been good—He had the misfortune to come to his crown between the age of nine and ten, and there are few inftances of a king who comes fo early to his throne answering the expectations of his people-In our own history, Richard the Second and Henry the Sixth are striking instances of this observation, for which there feems to be an obvious cause, as a minor king hath generally a worfe education than he who is only destined to a throne-Flattery hath often been faid to be the bane of crowned heads; and an infant king, exercifing moft acts of authority in his own perfon, is eafily taught to conceive more highly of himself than a mortal should do A most extraordinary inftance of this proftitution of adulation to a minor king is mentioned by Fabian, in his Chronicle, which I fhall give in his own words" Henry the Sixth, when but eight months old, fat in his mother's lap in the parliament chamber, and the speaker made a famouse prepofition, in which he faid much "of the providence of God, who had endowed the realm with the presence of so toward a prince "and foveragn governor," p. 410.—As men advance in years, fome new wants must arise, new powers grafped at, and new defires gratified, otherwife there is an infipidity even in the poffeffion of a throne-When a minor king therefore arrives at more mature years, the common preeminences of his ftation begin to pall, which he hath already fo long exercised and enjoyed Might it not poffibly be owing to the minority of Louis the Fourteenth, that, tired of governing France only, he at laft involved his own country and Europe in such distreffes, by affecting the general empire of it?

[m] Statutum de diftri&tione Scaccarii.

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