10
No-one is to be distrained to do more service for a knight’s fee or for any other free tenement than is due from it.
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A knight's "fee" is some unit of land which is necessary for the maintenance of that knight and maybe his retinue, for the purpose of sending him off to war. Clause 10 is an imposition which prevents someone from demanding extra work from a knight in exchange for their fee; rather than what it sounds like it could be which is an imposition upon the serfdom and peasantry from doing excess work for their knight.
Remember, Magna Carta is a list of demands from the barons to the King; rather than some great charter of rights being claimed by the general populace at large. Legally speaking, the serfdom and peasantry in relation to the knights and barons, by virtue of living upon the lands in their estates, were considered to be the property of the knights and barons.
The actual operation of this Clause since the time of about Henry VIII with various Enclosure Acts, right up until the General Enclosure Act 1801, means that the number of people who either lived on or had the right to live on estates or graze livestock in Common lands, was steadily decreased. The General Enclosure Act 1801 rounded off that number to exactly 0.
There are no circumstances under which Clause 10 even has any operation today. It might technically still form part of the corpus of law but what is the point of law if it applies to literally no-one?
11
Common pleas are not to follow our court but are to be held in a certain fixed place.
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On the face of it, this looks like a call for established formal Courts of Assizes, Criminal Courts, et cetera to be built. This is fine. In truth though, when you have Circuit Courts and professional judges who move from place to place, the idea that court should be held in a singular fixed place, immediately dissolves like snow in a furnace.
12
Recognisances of novel disseisin and of mort d’ancestor are not to be taken save in their particular counties and in the following way. We or, should we be outside the realm, our chief justiciar, will send our justices once a year to each county, so that, together with the knights of the counties, that may take the aforesaid assizes in the counties; and those assizes which cannot be completed in that visitation of the county by our aforesaid justices assigned to take the said assizes are to be completed elsewhere by the justices in their visitation; and those which cannot be completed by them on account of the difficulty of various articles (of law) are to be referred to our justices of the Bench and completed there.
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"Novel disseisin" and "mort d’ancestor" are in modern English: "recently dispossessed lands" and "the death of ancestral lands". What the barons and earls are trying to achieve here, are the resolution of land disputes where someone has either had their land confiscated by the Crown, or by the action of some other earl or baron. These assizes are ideally to be held within the counties where the land dispute happened.
That's all fine and dandy except that in Australia we have state land and environment courts, lands titles courts, and other courts of regular sessions. Clause 12 insofar as it applies to the operation of law in Australia is nil.
13
Assizes of darrein presentment are always to be taken before our justices of the Bench and are to be completed there.
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"Darrein presentment" is the lovely French term of "last" presentment and specifically refers to what happens if for some reason, a local priest/bishop/vicar/rector, vacates a parish or church; usually this would either happen because of death or promotion.
Take particular note of who gets to decide upon who fills the vacant position. These Assizes "are always to be taken before our justices of the Bench". This is the barons and earls who are in effect telling the Church that they are the ones who will decide who gets to be in charge of the clergy.
It's also worth noting that as the church, while it did have some degree of ecclesiastical hierarchy and academy, was also very much subject to positions being bought and sold throughout the land. Simony, that is the buying and selling of ecclesiastic wasn't actually made illegal until the Simony Act of 1688. This is also in conjunction with the Glorious Revolution and other reformation acts such as the Bill Of Rights Act 1688.
Churches now have their own system of academic recognition and as far as I am aware, there isn't any major organised religion where one could simply buy the right to be a bishop.
14
A free man is not to be amerced for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency (salvo contenemento suo), and a merchant likewise, saving his merchandise, and any villein other than one of our own is to be amerced in the same way, saving his necessity (salvo waynagio) should he fall into our mercy, and none of the aforesaid amercements is to be imposed save by the oath of honest and law-worthy men of the neighbourhood. Earls and barons are not to be amerced save by their peers and only in accordance with the manner of their offence. No clergyman is to be amerced according to the value of his ecclesiastical benefice, but according to his lay tenement and the degree of his wrongdoing.
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The idea that someone should be tried in a court which is made up of their peers, is in theory a noble cause. In practice, it is dafter than a box of rats, in an elevator, going up and down in a cruise ship. Why? Just why?
Also take note of who these people deem to be the only ones capable of administering justice to the various classes: free men to free men, merchants to merchants, villeins to villeins, the clergy to the clergy, and most importantly to them the Earls and barons are not to be amerced save by their peers.
If we were to apply this same principle today, then the directors of the ASX200 would only be able to be taken to court and tried by other directors of the ASX200. Absolutely nothing could go wrong with that in principle, yeah? This wouldn't at all be open to corruption?
15
No town or free man is to be distrained to make bridges or bank works save for those that ought to do so of old and by right.
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We shall see that Magna Carta is in actuality, quite a petty document which is hideously concerned with the local geography of south-east England; rather than being some massive overarching legal framework for future generations.
Essentially Clause 15 is a ban upon civil conscription of burghers and freemen. Note that it doesn't concern itself with the peasantry, or the serfs, or slaves; who as chattel property, could be conscripted to build bridges/bank works/forts/castles et cetera.
16
No bank works of any sort are to be kept up save for those that were in defence in the time of King H[enry II] our grandfather and in the same places and on the same terms as was customary in his time.
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Again, Clause 16 is concerned with the civil infrastructure of the waterways but places an allowable exception on Clause 15. Clauses 15 and 16 taken together, have literally zero actionable effect on Australia.
17
No sheriff, constable, coroner or any other of our bailiffs is to hold pleas of our crown.
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One of the curious features of English Law and by extension the corpus of received law in Australia, is that the Crown, is a separate legal person from the monarchy. As a separate legal person, the Crown is actually independent from the monarchy and although the monarch (the King) is an inheritable position which is inseparable, the Crown can enter into contracts, can own property real or otherwise, and sue and be sued. It is that last point which Clause 17 wants to address.
In 1215 and when this was later adopted into formal law, there still hadn't been the legal determination that there should only be one court. Justice and the judiciary, the sheriffs and constables, and other officers who administered law, were appointed by the earls and barons who owned the estates.
The action of Clause 17 pits what's amounts to a private legal system against the Crown. It then refuses to accept that the Crown is actually a legal person and further refuses to admit that the Crown has any actionable things in these private courts.
In the twenty-first century, the idea that there should be private courts is usually seen as intolerable but the wheel of history is big and frequently turns in unexpected directions. I know that was then but it could be again. For now, the operation of Clause 17 is nil.
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As we continue to move forward through Magna Carta and as it presses ever more in upon local land disputes, the actual relevance of it upon Australian law only move ever sharper into focus.
Today's running tally of Clauses in Magna Carta which might apply to someone in court in Australia today is:
0/17.
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