Front Page Titles (by Subject) CHAPTER NINE. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
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CHAPTER NINE. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad solucionem debiti; et si capitalis debitor defecerit in solucione debiti, non habens unde solvat, plegii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris, donec sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem plegios.
Neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties.
The Charter passes to another group of grievances. Chapters 9 to 11 treat of debts, usury, and the Jews, and should be read in connection with chapter 26, which regulates procedure for attaching personal estate of deceased Crown tenants who were also Crown debtors. The present chapter, although general in its terms, had special reference to cases where the Crown was creditor; while the two following chapters treat more particularly of debts contracted to money lenders.
The fact that John’s subjects were indebted to his Exchequer did not imply that they had borrowed from the King. What with feudal incidents and scutages, and indiscriminate fines, a large proportion of Englishmen must have been permanently indebted to the Crown. At John’s accession many northern barons still owed scutages imposed 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.1
Three 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 of his means of livelihood; for chattels could not yield a permanent revenue.2 This rule has not found a place in modern systems of law, which usually leave the option with the creditor. (2) The estate of the chief debtor had to be exhausted before proceedings could be instituted against his sureties. Magna Carta thus enunciated for English law a rule that 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 Scots law as the “benefit of discussion.” (3) If these sureties had, after all, to pay the debt in whole or 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 the creditor held in security.
Even when the Crown’s bailiffs obeyed Magna Carta, they might still inflict terrible hardship upon debtors. Sometimes they seized goods valuable out of all proportion to the debt; and an Act of 12661 forbade this practice when the disproportion was “outrageous.” Sometimes they attempted to extort prompt payment by selecting whatever chattel was most indispensable: oxen were taken from the plough and allowed to die of neglect. The practice of the Exchequer, in the days of Henry II., had been more considerate; oxen were to be spared as far as possible where other personal effects were available.2 John’s charter has no such humane provision,3 and the abuse continued. The Act of 1266, already cited, forbade officers to drive away the owner who came to feed his impounded cattle at his own expense. The Articuli super cartas4 went further, prohibiting seizure of beasts of the plough so long as other effects might satisfy the debt.5
[1 ]See supra, pp. 73–6.
[2 ]The Dialogus de Scaccario, II. xiv., half a century earlier, laid down rules even more favourable to the debtor in two respects: (1) the order in which moveables should be sold was prescribed; and (2) 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.
[1 ]51 Henry III. stat. 4 (among “statutes of uncertain date” in Statutes of Realm, I. 197).
[2 ]See Dialogus de Scaccario, II. xiv.
[3 ]Cf., however, the rule as to amercements in c. 20.
[4 ]28 Edward I. c. 12. Cf. Statute of Marlborough, 52 Henry III. c. 15.
[5 ]Henry’s reissues make two small additions explaining certain points of detail: (1) the words “et ipse debitor paratus sit inde satisfacere” precede the clause giving sureties exemption; and (2) the sureties are declared liable to distraint when the chief debtor can pay, but will not.