|
《大宪章》签署于1215年，是封建贵族与人民反约翰王起义的产物。 《大宪章》共六十三款。就具体条款而言，《大宪章》是对几百年来国王与贵族之间的封建契约关系的全面“记述”，绝大多数条款只是重申了人所共知的封建习惯，其中，关于贵族们的封建权利，特别是有关免役税、领地继承税、助钱、未成年继承人的监护权等问题占有最突出的地位。因此，如果单纯着眼于《大宪章》的具体条款，它无疑是个封建契约文件。 但《大宪章》首次把过去的封建成规集中在一个统一的文件中，以具体申述陈旧法律的含蓄形式，体现和宣告了一条崇高的宪法原则－－王权有限、法律至上。一位美国学者曾指出：尽管大宪章以其具体性、明确性而著称，但它的重要性在于它宣告了一条基本原则，即：有一组法律高于国王之上，用梅特兰和波洛克的话说就是：“国王低于法律，而且应该低于法律。” 把一般原则寓于具体条款之内，恰恰是《大宪章》的奇妙之处，随着时间的流逝、社会的进步，《大宪章》的大部分具体规定都被抛进了历史的垃圾堆，“但《大宪章》一直作为国王应遵守法律的象征而矗立着。” 《大宪章》是英国历史上第一个分配社会权利的宪法文献。它的主旨在于限制王权即国家权力而保障社会成员的权利，尽管在当时的社会中，受益的社会成员只占少数，仅限于自由人，但随着历史的发展和农奴制的瓦解，越来越多的不自由的农奴摆脱了封建枷锁而成为自由人，从而也纳入了《大宪章》的保障范围之内，致使社会权利的受益面越来越宽泛。 总之，《大宪章》是英国宪法史上第一个重要的宪法性文件，是英国宪政史上的一个重要里程碑。 （以上文字主要来源于程汉大：《英国法制史》） 英文全文： The Magna Carta JOHN, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, Greeting. KNOW THAT BEFORE GOD, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, at the advice of our reverend fathers Stephen, archbishop of Canterbury, primate of all England, and cardinal of the holy Roman Church, Henry archbishop of Dublin, William bishop of London,  eter bishop of Winchester, Jocelin bishop of Bath and Glastonbury, Hugh bishop of Lincoln, Walter Bishop of Worcester, William bishop of Coventry, Benedict bishop of Rochester, Master andulf subdeacon and member of the papal household, Brother Aymeric master of the knighthood of the Temple in England, William Marshal earl of embroke, William earl of Salisbury, William earl of Warren, William earl of Arundel, Alan de Galloway constable of Scotland, Warin Fitz Gerald, eter Fitz Herbert, Hubert de Burgh seneschal of oitou, Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, hilip Daubeny, Robert de Roppeley, John Marshal, John Fitz Hugh, and other loyal subjects: (1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church’s elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by ope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity. TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs: (2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a `relief’, the heir shall have his inheritance on payment of the ancient scale of `relief’. That is to say, the heir or heirs of an earl shall pay ?00 for the entire earl’s barony, the heir or heirs of a knight l00s. at most for the entire knight’s `fee’, and any man that owes less shall pay less, in accordance with the ancient usage of `fees’ (3) But if the heir of such a person is under age and a ward, when he comes of age he shall have his inheritance without `relief’ or fine. (4) The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. He shall do this without destruction or damage to men or property. If we have given the guardianship of the land to a sheriff, or to any person answerable to us for the revenues, and he commits destruction or damage, we will exact compensation from him, and the land shall be entrusted to two worthy and prudent men of the same `fee’, who shall be answerable to us for the revenues, or to the person to whom we have assigned them. If we have given or sold to anyone the guardianship of such land, and he causes destruction or damage, he shall lose the guardianship of it, and it shall be handed over to two worthy and prudent men of the same `fee’, who shall be similarly answerable to us. (5) For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself. When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear. (6) Heirs may be given in marriage, but not to someone of lower social standing. Before a marriage takes place, it shall be’ made known to the heir’s next-of-kin. (7) At her husband’s death, a widow may have her marriage portion and inheritance at once and without trouble. She shall pay nothing for her dower, marriage portion, or any inheritance that she and her husband held jointly on the day of his death. She may remain in her husband’s house for forty days after his death, and within this period her dower shall be assigned to her. (8) No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of. (9) Neither we nor our officials will seize any land or rent in payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt. A debtor’s sureties shall not be distrained upon so long as the debtor himself can discharge his debt. If, for lack of means, the debtor is unable to discharge his debt, his sureties shall be answerable for it. If they so desire, they may have the debtor’s lands and rents until they have received satisfaction for the debt that they paid for him, unless the debtor can show that he has settled his obligations to them. (10) If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond. (11) If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it. If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands. The debt is to be paid out of the residue, reserving the service due to his feudal lords. Debts owed to persons other than Jews are to be dealt with similarly. (12) No `scutage’ or `aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes ouly a reasonable `aid’ may be levied. `Aids’ from the city of London are to be treated similarly. (13) The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs. (14) To obtain the general consent of the realm for the assessment of an `aid’ - except in the three cases specified above - or a `scutage’, we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place. In all letters of summons, the cause of the summons will be stated. When a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared. (15) In future we will allow no one to levy an `aid’ from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. For these purposes only a reasonable `aid’ may be levied. (16) No man shall be forced to perform more service for a knight’s `fee’, or other free holding of land, than is due from it. (17) Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place. (18) Inquests of novel disseisin, mort d’ancestor, and darrein presentment shall be taken only in their proper county court. We ourselves, or in our absence abroad our chief justice, will send two justices to each county four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets. (19) If any assizes cannot be taken on the day of the county court, as many knights and freeholders shall afterwards remain behind, of those who have attended the court, as will suffice for the administration of justice, having regard to the volume of business to be done. (20) For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood. (21) Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence. (22) A fine imposed upon the lay property of a clerk in holy orders shall be assessed upon the same principles, without reference to the value of his ecclesiastical benefice. (23) No town or person shall be forced to build bridges over rivers except those with an ancient obligation to do so. (24) No sheriff, constable, coroners, or other royal officials are to hold lawsuits that should be held by the royal justices. (25) Every county, hundred, wapentake, and tithing shall remain at its ancient rent, without increase, except the royal demesne manors. (26) If at the death of a man who holds a lay `fee’ of the Crown, a sheriff or royal official produces royal letters patent of summons for a debt due to the Crown, it shall be lawful for them to seize and list movable goods found in the lay `fee’ of the dead man to the value of the debt, as assessed by worthy men. Nothing shall be removed until the whole debt is paid, when the residue shall be given over to the executors to carry out the dead man s will. If no debt is due to the Crown, all the movable goods shall be regarded as the property of the dead man, except the reasonable shares of his wife and children. (27) If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church. The rights of his debtors are to be preserved. (28) No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this. (29) No constable may compel a knight to pay money for castle-guard if the knight is willing to undertake the guard in person, or with reasonable excuse to supply some other fit man to do it. A knight taken or sent on military service shall be excused from castle-guard for the period of this servlce. (30) No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent. (31) Neither we nor any royal official will take wood for our castle, or for any other purpose, without the consent of the owner. (32) We will not keep the lands of people convicted of felony in our hand for longer than a year and a day, after which they shall be returned to the lords of the `fees’ concerned. (33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast. (34) The writ called precipe shall not in future be issued to anyone in respect of any holding of land, if a free man could thereby be deprived of the right of trial in his own lord’s court. (35) There shall be standard measures of wine, ale, and corn (the London quarter), throughout the kingdom. There shall also be a standard width of dyed cloth, russett, and haberject, namely two ells within the selvedges. Weights are to be standardised similarly. (36) In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs. It shall be given gratis, and not refused. (37) If a man holds land of the Crown by `fee-farm’, `socage’, or `burgage’, and also holds land of someone else for knight’s service, we will not have guardianship of his heir, nor of the land that belongs to the other person’s `fee’, by virtue of the `fee-farm’, `socage’, or `burgage’, unless the `fee-farm’ owes knight’s service. We will not have the guardianship of a man’s heir, or of land that he holds of someone else, by reason of any small property that he may hold of the Crown for a service of knives, arrows, or the like. (38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. (40) To no one will we sell, to no one deny or delay right or justice. (41) All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too. (42) In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. eople that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision. (43) If a man holds lands of any `escheat’ such as the `honour’ of Wallingford, Nottingham, Boulogne, Lancaster, or of other `escheats’ in our hand that are baronies, at his death his heir shall give us only the `relief’ and service that he would have made to the baron, had the barony been in the baron’s hand. We will hold the `escheat’ in the same manner as the baron held it. (44) eople who live outside the forest need not in future appear before the royal justices of the forest in answer to general summonses, unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence. (45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well. (46) All barons who have founded abbeys, and have charters of English kings or ancient tenure as evidence of this, may have guardianship of them when there is no abbot, as is their due. (47) All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly. (48) All evil customs relating to forests and warrens, foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. But we, or our chief justice if we are not in England, are first to be informed. (49) We will at once return all hostages and charters delivered up to us by Englishmen as security for peace or for loyal service. (50) We will remove completely from their offices the kinsmen of Gerard de Ath閑, and in future they shall hold no offices in England. The people in question are Engelard de Cigogn?, eter, Guy, and Andrew de Chanceaux, Guy de Cigogn? Geoffrey de Martigny and his brothers, Philip Marc and his brothers, with Geoffrey his nephew, and all their followers. (51) As soon as peace is restored, we will remove&n (责任编辑：admin) |