Petition of Right III (1628)
Bill Long 1/11/05
3. Confirmation of the Great Charter
In the 25th year of Edward I (1297), Parliament confirmed both the MC and the Charter of the Forest. This confirmatory seven chapter statute, officially known as 25 E 1, stat. 1, largely deals with the confirmation of the charters, the requirement for reading the charters in cathedral churches, and the penalties (excommunication) for breaching the charters. However, Ch. VI adds to the mix begun by MC XXIX, discussed in the previous essay. It provides:
"Moreover we have granted for us and our Heirs, as well to Archbishops, Bishops....that for no Business from henceforth we shall take such Manner of Aids, Tasks, nor Prises, but by the common Assent of the Realm, and for the common Profit thereof, saving the ancient Aids and Prises due and accustomed. (25 E 1, stat. 1, ch. 6)."
It is easy to see how this could be used by the reformers not for the detention issue, for which MC XXIX and 3 E 1, ch. 15 were useful but for the taxation issue. The language of the statute assumes a world of "feudal incidents"--i.e., the "dues" owed lords by vassals in exchange for protection. The "ancient Aids" are preserved, such as relief, wardship and marriage [maybe I will write about these some day!], whereas any new taxes must be passed by "the common Assent of the Realm." The reformers could also make the point that 25 E 1 did not just "confirm" the rights and duties of MC; by adding this paragraph it is as if Parliament is highlighting the importance of "no taxation without Parliamentary approval."
4. A Relatively Minor Statute--1331
5 E 3 is a catchall statute that confirms MC again and then has several procedural and substantive provisions. One chapter heading that amuses us discusses "The Punishment of a Juror that is Ambidexter (ch. X)." What is meant by such a word is not that the Juror is equally able to dribble with either hand, but that he "take of one party, or of the other" [i.e., takes bribes]. Of concern to the litigants in 1627 and the petitioners in 1628 would be chapter IX:
"It is enacted, That no Man from henceforth shall be attached by any Accusation, nor forejudged of Life or Limb, nor his Lands, Tenements, Goods, nor Chattels seised into the King's Hands, against the Form of the Great Charter, and the Law of the Land."
As any good lawyer knows, if you have a statute that just repeats provisions of earlier statutes, use both of them in your argument. Cumulative weight does count in law.
5. Statute of Purveyors--1350
Included in this law, formally known as 25 E 3, stat. 5, is the most significant treason law in early English history (Ch. II), provisions for just weights and measures (Ch. IX) and proper indictment of felons (Ch. XIV) as well as a chapter useful for the reformers: chapter IV, entitled "None shall be condemed upon suggestion without lawful presentment."
What is fascinating about this chapter is that it is an express comment upon MC and an attempt to clarify what I have referred to earlier as the ambiguous language of Ch. XXIX of the Charter. Note how 25 E 3, stat. 5, ch. IV begins:
"Whereas it is contained in the great charter of the franchises of England, that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land....."
This is the familiar language of MC XXIX. We are now ready for the "interpretive gloss" that the statute will place on the MC provision:
"(2)It is accorded, assented, and stablished, That from henceforth none shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law..."
Let's stop here for a moment. What this statute is doing, by the introduction of the words "indictment or presentment" is putting teeth into the ambiguous phrase "law of the land" in MC. No doubt in the time since MC many people who had been accused of crimes would appeal to MC XXIX and claim exemption from prosecution unless it the arrest was done procedurally correctly. But since there was no authority on the issue, judges would be free to interpret the MC as they chose. The 1350 statute funnels the interpretation, so to speak, into one channel--there must be a proper arrest and bringing to trial.
This was the statute on which Selden based his argument in the Five Knights Case, though the Attorney General argued from other precedents that "indictment or presentment" had not been used in all instances. Nevertheless, you can see how the language of this statute would be perfect for the reformers in drafting the Petition of Right. It gives statutory assurance of procedural due process.
I need one more brief essay to conclude the statutory treatment.
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