also that its terms were found to be too stringent, and had to be
frequently relaxed in practice.[741] This was done in 1201. The king’s
justices, we are told, wished to seize the cloth of certain merchants on
the ground that it was less than the legal width. They compromised,
however, by accepting a great sum of money “to the use of the king and
to the damage of many.” Thus Hoveden denounces what he regards as an
unlawful bargain between the justices and the traders for injuring
buyers by evading the strict letter of the ordinance.
-----
Footnote 741:
See Hoveden, IV. 172, and Stubbs, _Const. Hist._, I. 616.
-----
Many examples of evasion may be found in the _Pipe Rolls_ both before
and after Magna Carta. The justices, indeed, were usually more bent on
collecting fines for its breach than on enforcing the Assize. In 1203
two merchants of Worksop were amerced each in half a mark for selling
wine contrary to the Assize, while the custodians of measures of the
borough were also mulcted in one mark for performing their duty
negligently—an exact illustration of the words of the ordinance.[742] In
the same year a fine of one mark was imposed on certain merchants “for
stretching cloth,” in order, presumably, to bring it to the legal
width.[743] Merchants frequently paid heavy fines to escape the
ordinance altogether.[744]
-----
Footnote 742:
See _Pipe Roll_, 4 John, cited Madox, I. 566.
Footnote 743:
See _Ibid._
Footnote 744:
In 1203 the men of Worcester paid 100s. “_ut possint emere et vendere
pannos tinctos sicut solebant tempore Regis Henrici_”; and the men of
Bedford, Beverley, Norwich and other towns made similar payments. See
_Pipe Roll_, 4 John, cited Madox, I. 468-9.
-----
When the barons in 1215 insisted upon John enforcing his brother’s
ordinance in all its rigour, they took a step in their own interests as
buyers, and against the interests of the trade guilds as sellers.
Although this provision was repeated in all subsequent charters, it
seems never to have produced much effect. The difficulty of enforcing
such provisions in their strictness was great, and evasion continued.
One example may suffice. In the second year of Henry III.[745] the
citizens of London paid 40 marks that they might not be questioned for
selling cloth less than two yards in width. Here is an illustration of
the practice of the judges to which Hoveden had objected, and which
Magna Carta had apparently failed to put down. Sometimes, however, the
provisions of Richard’s Assize of Measures and of John’s Assize of Wine
were still enforced. In 1219 a Lincolnshire parson, with a liberal
conception of the scope of his parochial duties, had to pay 40s. for
wine sold _extra Assisam_.[746] Parsons, apparently, might engage in
trade, but only if they conformed to the usual regulations.
-----
Footnote 745:
See _Pipe Roll_, cited Madox, I. 509.
Footnote 746:
_Pipe Roll_, 3 Henry III., cited Madox, I. 567.
CHAPTER THIRTY-SIX.
Nichil detur vel capiatur de cetero pro brevi inquisicionis de vita vel
membris, sed gratis concedatur et non negetur.
Nothing in future shall be given or taken for a writ of inquisition of
life or limbs, but freely it shall be granted, and never denied.
This chapter has an important bearing upon trial by combat, and none at
all upon _habeas corpus_, to which it is often supposed to be closely
related. The particular writ upon which such emphasis is here laid had
been invented by Henry II. to obviate the judicial duel in certain
cases, by allowing the accused man virtually to refer the question of
his guilt or innocence to the sworn verdict of his neighbours.
I. _Trial by Combat prior to the Reign of John._ The crucial moment in
judicial proceedings during the Middle Ages arrived, as has already been
explained,[747] when the “test” or “trial” (_lex_) appointed by the
court was attempted by one or both of the litigants. The particular form
of proof to which the warlike Norman barons were attached was the
_duellum_, and it was only natural that such of the old Anglo-Saxon
aristocracy as associated with them on terms of equality should adopt
their prejudices. Hence “combat” became the normal mode of deciding all
serious disputes among the upper classes. Even from the first, however,
it seems not to have been competent for property of less than 10s. in
value,[748] and it soon came to be specially reserved for two classes of
disputes—civil pleas instituted by writ of right, and criminal pleas
following on “appeal.” The present chapter is concerned with the latter
only.
-----
Footnote 747:
See _supra_, pp. 103-6.
Footnote 748:
See _Leges Henrici primi_, c. 69, §§ 15-16.
-----
An “appeal” in this connection was entirely different from the modern
appeal from a lower to a higher court. It was a formal accusation of
treason or felony made by a private individual on his own initiative,
and was usually followed by judicial combat between the appellant and
appellee, each of whom fought in person. Such a right was necessary in
an age when the government had not yet assumed a general responsibility
for bringing ordinary criminals to justice, or was at least so lax and
spasmodic in performing that function as to leave many wrongdoers
unpunished. Appeal followed by battle was probably in its origin a form
of legal procedure substituted for the older blood-feud.[749] Those who
had suffered wrong would be more readily dissuaded from their vendetta
if they were allowed instead the right of judicial duel under fair
conditions laid down by the court. The Norman trial by combat was thus a
survival from an earlier stage of society when the wronged person, not
the magistrate, had been the avenger of crime; and this explains several
peculiarities—why, for example, when the accused had uttered “that
hateful word craven,”[750] thus confessing himself vanquished and
deserving a perjurer’s fate, the victorious accuser was entitled to his
vengeance, even in the face of a royal pardon. When Henry of Essex,
constable and standard-bearer of Henry II., accused by his enemy, Robert
de Montfort, in 1163, had been worsted in the combat, the royal favour
could not shield him, though apparently the king’s connivance enabled
him, by renouncing his possessions and becoming a monk, and therefore
dead in law, to escape actual death by hanging.[751] It would seem that
at an early date the whole procedure had resembled even more closely a
legalized private revenge, since the appellant who had vanquished his
foe was allowed personally to put him to death. "The ancient usage was,
so late as Henry IV.’s time, that all the relations of the slain should
drag the appellee to the place of execution."[752]
-----
Footnote 749:
Cf. _supra_, c. 20.
Footnote 750:
“_Illud verbum odiosum quod recreantus sit._” Bracton, _folio_ 153.
Footnote 751:
See Jocelyn of Brakelond, pp. 50-2.
Footnote 752:
Blackstone, _Commentaries_, IV. 316.
-----
The evils of trial by combat are obvious. From the first it was dreaded
and avoided by the traders of the boroughs, who paid heavily for
charters of exemption. Their aversion spread to the higher classes, and
was shared by Henry II. To that great statesman, endowed with the ardent
instincts of a reformer, despising utterly all obsolete and irrational
modes of procedure, and quite devoid of reverence for tradition, trial
by combat was entirely abhorrent. He would gladly have abolished it out
and out if he had dared; but he prudently followed the more subtle
policy of slowly undermining its vitality. For this purpose he used four
expedients, which are of great interest in respect that they throw light
on the process by which trial by jury superseded trial by battle.[753]
(1) Every facility was afforded the parties to a civil suit who were
willing to forego the _duellum_ voluntarily. Henry placed at their
disposal, as a substitute, a procedure which had by his ancestors been
specially reserved for the service of the Crown. Litigants might refer
their rival claims to the oath of a picked body of local neighbours: the
old recognitors thus developed into the _jurata_. This course was
possible, however, only where both parties consented, and it had many
features in common with a modern arbitration. (2) In pleas relating to
the title and possession of land Henry went further, granting to the
defendant the option of a peaceful settlement even when the claimant
preferred battle. The men to whose oaths such cases were referred were
known as an _assisa_, not a _jurata_, since both litigants had not
consented. The three various groups of assizes welcomed by the barons in
chapter 18 have already been discussed. The _assisa_, like the _jurata_,
could be applied only to civil pleas. (3) Attempts were made to
discourage trial by combat in criminal pleas also by discouraging the
exercise of the right of private “appeal,” its natural prelude. The
corporate voice of the accusing jury was made as far as possible to
supersede the individual complaint of the injured party offering battle.
Only the near blood relation, or the liege lord, of a murdered man was
allowed to prove the offender’s guilt by combat; while a woman’s right
of appeal was kept within narrow limits.[754] (4) A wide field was still
left for private appeal and battle; but Henry endeavoured to narrow it
by a subtle device. In appeals of homicide, where the accusation was not
made _bona fide_, but maliciously or without probable cause, the
appellee was afforded a means of escaping the _duellum_. He might apply
for the writ which forms the subject of this chapter.
-----
Footnote 753:
Cf. _supra_, 107–9, and also 158-163.
Footnote 754:
Some particulars are given under c. 54.
-----
II. _The Writ of Life and Limb._ The writ here referred to, better known
to medieval England as the writ _de odio et atia_,[755] was intended to
protect from duel men unjustly appealed of homicide. Rash or malicious
accusations might be raised by turbulent knights, who made fighting
their pastime, in order to gratify a grudge against traders or other men
of peace, and many an appealed man was glad to purchase from the king
permission to escape by assuming the habit and tonsure of a monk;[756]
but Henry desired to save innocent men from the risk of failure in the
_duellum_ without this subterfuge. If the accused asserted that his
appellant acted “out of spite and hate” (_de odio et atia_), he might
purchase from the royal chancery a writ known by that name, which
referred the preliminary plea thus raised to the verdict of a sworn body
of twelve recognitors drawn from his own locality. If his neighbours
upheld the plea all further proceedings on the appeal were quashed: the
_duellum_ was avoided.[757] A similar privilege was afterwards extended
to all those guilty of homicide in self-defence, or of homicide by
misadventure, not of deliberate murder.[758] Soon every man appealed of
murder, whether guilty or not, alleged as a matter of course that he had
been accused groundlessly and maliciously, mere “words of common form.”
This expansion of the writ’s sphere of usefulness was accompanied by
another change. The main issue of guilt or innocence, not merely the
preliminary pleas, came to be determined by the neighbours’
verdict,[759] which, whether for or against the accused, was treated as
final. No further proceedings were necessary: none were allowed. The
_duellum_ had at last been successfully elbowed aside, although it was
not abolished until 1819.[760]
-----
Footnote 755:
In identifying the writ spoken of by Magna Carta as that “of life and
limbs” with the well-known writ _de odio et atia_, most authorities
rely on a passage in Bracton (viz.: _folio_ 123). There is still
better evidence. The Statute of Westminster, II. c. 29, ordains: “Lest
the parties appealed or indicted be kept long in prison, they shall
have a writ _de odio et atia_ like as it is declared in Magna Carta
and other statutes.” Further, in 1231 twelve jurors who had given a
verdict as to whether an appeal was false, were asked _quo waranto
fecerunt sacramentum illud de vita et membris_, without the king’s
licence. See Bracton’s _Note Book_, case 592.
-----
Footnote 756:
Madox, I. 505, has collected instances.
-----
III. _Subsidiary Uses of the Writ._ This inquest of life and limb,
devised as a means of substituting a sworn verdict for the _duellum_ in
cases of homicide, has often been claimed as the direct antecedent of,
if not as identical with, the procedure which in the seventeenth century
became so valuable a bulwark of the subject’s liberty, under the name of
_habeas corpus_. This is a mistake; the modern writ of _habeas corpus_
was developed out of an entirely different writ, which had for its
original object the safe-keeping of the prisoner’s body in gaol, not his
liberation from unjust confinement.[761]
-----
Footnote 757:
Cf. Pollock and Maitland, II. 585-7, and Thayer, _Evidence_, 68.
Footnote 758:
It was extended in another direction also: some of the feudal courts
adopted a similar procedure in false appeals (although the king
objected to their doing so without royal licence). Inquests were held
shortly after the abolition of ordeal (1215) in the court of the Abbot
of St. Edmund. See Bracton’s _Note Book_, case 592.
Footnote 759:
See Pollock and Maitland, II. 586.
Footnote 760:
59 George III. c. 46.
Footnote 761:
The early history of _habeas corpus_ is traced by Prof. Jenks in a
learned and interesting article in the _Law Quarterly Review_, VIII.
164. The writ _de odio_ was obsolete at a date prior to the invention
of the _habeas corpus_.
-----
The opinion generally though erroneously held, is not without excuse;
for the writ mentioned by Magna Carta, besides effecting its main
purpose, was put to another and subsidiary use, which bears a
superficial resemblance to that served by the _habeas corpus_ of later
centuries. Considerable delay might occur between the appellee’s
petition for the writ of inquisition and the verdict upon it. In the
interval, the man accused of murder had, in the normal case, no right to
be released on bail, a privilege allowed to those suspected of less
grave crimes. This was hard in cases where the accused was the victim of
malice, or guilty only of justifiable homicide. Prisoners, placed in
such a plight, might purchase from the Crown, always ready to accept
fees in a worthy cause, royal writs which would save them from
languishing for months or years in gaol. The writ best suited for this
purpose was that _de odio et atia_, since it was already applicable to
presumably innocent appellees for another purpose.[762]
-----
Footnote 762:
Cf. Brunner, _Entstehung der Schwurgerichte_, p. 471.
-----
As trial by combat became rapidly obsolete, the original purpose of the
writ was forgotten, and its once subsidiary object became more
prominent. Before Bracton’s day (possibly even before the date of Magna
Carta) this change had taken place: the writ had come to be viewed
primarily as an expedient for releasing upon bail homicides _per
infortunium_ or _se defendendo_. Bracton, in giving the form of the
writ,[763] declares it to be iniquitous that innocent men accused of
homicide should be long detained in prison; therefore, he tells us, an
inquisition is wont to be made at the request of sorrowful
friends—whether the accusation is _bona fide_ or has been brought _de
odio et atia_. This pleasing picture of a king moved to pity by the
tearful friends of accused men scarcely applies to John, who listened
only to suitors with long purses which they were ready to empty into his
exchequer. The writs which liberated homicides had become a valuable
source of revenue. Sheriffs were frequently reprimanded for releasing
prisoners on bail without the king’s warrant, but, in spite of heavy
amercements, they continued their irregularities, either through favour
to individuals or in return for bribes. Thus, in 1207, Peter of
Scudimore paid to the exchequer a fine of 10 marks for setting homicides
free upon pledges, without warrant from the king or his justices.[764]
In that year, John repeated his orders, strictly forbidding manslayers
to be set free upon bail, unless by royal command, until they had
received judgment in presence of the king’s justices.[765]
-----
Footnote 763:
See _folio_, 123.
Footnote 764:
See _Pipe Roll_, 8 John, cited Madox, I. 566.
Footnote 765:
See _Rot. Pat._, I. 76, cited Madox, I. 494. The date is 8 November,
1207.
-----
To John, then, the excessive and arbitrary fees to be received for this
writ, constituted its greatest merit; whereas the barons claimed, as
mere matter of justice, that it should be issued free of charge to all
who needed it. John’s acceptance of their demands, contained in the
present chapter, was repeated in all reissues, and apparently observed
in practice. The procedure during the reign of Henry III. is described
by Bracton in a passage already cited. After the writ _de odio_ had been
received, an inquest, he tells us, must be held speedily, and if the
jury decided that the accusation had been made maliciously, or that the
slaying had been committed in self-defence or by accident, the Crown was
to be informed of this. Thereafter, from the chancery would be issued a
second writ, the form of which is also given by Bracton (known in later
days as the writ _tradias in ballium_) directing the sheriff, on the
accused finding twelve good sureties of the county, to “deliver him in
bail to those twelve” till the arrival of the justices. Such writs,
however, if in one sense “freely” issued, had always to be paid for. A
certain Reginald, son of Adam, when accused in 1222, offered one mark to
the king for a verdict of the three neighbouring counties (it was a
Lincolnshire plea), as to whether the accusation was made because of
“the ill-will and hate” (_per odium et atiam_) which William de Ros,
appellant’s lord, bore to Reginald’s father “_vel per verum
appellum_.”[766]
-----
Footnote 766:
See Bracton’s _Note Book_, case 134, and cf. case 1548.
-----
A long series of later statutes enforced or modified this procedure.
These have been interpreted to imply frequent changes of policy,
sometimes abolishing and sometimes reintroducing the writ and the
procedure which followed it.[767] This is a mistake; the various
statutes wrought no radical change, but merely modified points of
detail; sometimes seeking to prevent the release of the guilty on bail,
and sometimes removing difficulties from the path of the innocent. The
Statute of Westminster, I., for example, after a preamble which
animadverted on the manner in which sheriffs impannelled juries
favourable to the accused, provided that inquests “shall be taken by
lawful men chosen out by oath (of whom two at the least shall be
knights) which by no affinity with the prisoners nor otherwise are to be
suspected.”[768] The Statute of Gloucester, on the other hand, ordered
the strict confinement, pending trial, of offenders whose guilt was
apparent.[769] The Statute of Westminster, II. once more favoured
prisoners, providing by chapter 12 for the punishment of false
appellants or accusers, and by chapter 29 that “lest the parties
appealed or indicted be kept long in prison, they shall have a writ of
_odio et atia_, like as it is declared in Magna Carta and other
Statutes.”[770]
-----
Footnote 767:
Stephen, _Hist. Crim. Law_, I. 242 (following Foster, _Crim. Cases_,
284–5), considers that it was abolished by 6 Edward I., stat. 1, c. 9.
Coke, _Second Institute_, 42, thought it was abolished by 28 Edward
III. c. 9 (which, however, seems not to refer to this at all), and
restored by 42 Edward III. c. 1 (abolishing all statutes contrary to
Magna Carta). Coke, _Ibid._, and Hale, _Pleas of the Crown_, II. 148,
considered that the writ was not obsolete in their day. Cf. Pollock
and Maitland, II. 587, n.
Footnote 768:
3 Edward I. c. 11.
Footnote 769:
6 Edward I., stat. 1, c. 9.
Footnote 770:
13 Edward I. cc. 12 and 29.
-----
The writ in question was in use in the year 1314,[771] and seems never
to have been expressly abolished, but to have sunk gradually into
neglect, as appeals became obsolete and commissions of gaol delivery
were more frequently held.
-----
Footnote 771:
See _Rot. Parl._, I. 323.
-----
IV. _Later History of Appeal and Battle._ The right of private
accusation was restricted only, not abolished, by Henry II. and his
successors. It could not be denied to any injured man, who was not
suspected of abusing his right. Prosecutions in the king’s name by way
of indictment and jury trial supplemented, without superseding, private
prosecutions by way of appeal and battle. The danger of a second
prosecution might hang over the head of an accused man after he had
“stood his trial” and been honourably acquitted. It was unfair that he
should be kept in such suspense for ever; and, accordingly, the Statute
of Gloucester provided that the right of appeal should lapse unless
exercised within year and day of the commission of the offence.[772] To
ensure that the accused should escape all risk of a double prosecution
for the same crime, it was necessary that the Crown should supplement
the provisions of this act by delaying to prosecute until the year and
day had expired. This rule was followed in 1482. Such immunity from
arraignment at the king’s suit for the space of twelve months (combined
with the provisions of the Statute of Gloucester) would undoubtedly have
obviated the possibility of two trials for one offence; but it produced
a worse evil of a different kind, by facilitating the escape of
criminals from justice. After experience of its pernicious effects, this
rule was condemned by the act of parliament which instituted the Star
Chamber.[773]
-----
Footnote 772:
6 Edward I. c. 9. Appeals were extremely frequent towards the close of
the Plantagenet period, especially in the days of “the Lords
Appellant.” The proceedings which followed on appeal sometimes took
place before the Court of the Constable and Marshal and sometimes
before Parliament. In neither case were they popular. One of the
charges brought against Richard II. by the Parliament which deposed
him, was that “in violation of Magna Carta” (that is, probably, of
chapter 39) persons maliciously accused of treasonable words were
tried before the constable and marshal, and although they might be
“old and weak, maimed or infirm,” yet compelled to fight against
appellants “young, strong, and hearty.” See _Rot. Parl._, III. 420,
cited Neilson, _Trial by Combat_, 193. On the other hand, the Statute
1 Henry IV. c. 14 provided that no appeals should in future be held
before Parliament, but only before the Court of the Constable and
Marshal.
Footnote 773:
See 3 Henry VII. c. 1, s. 11. This statute emphasized how the injured
party, with the right of appeal, was “oftentimes slow and also agreed
with, and by the end of the year all is forgotten, which is another
occasion of murder.”
-----
This remedied the more recent evil, but revived the old injustice; the
same statute enacted that acquittal should not bar the right of appeal
of the wife or nearest heir of a murdered man. Thus, once again, a man
declared innocent by a jury might find himself still exposed to a second
prosecution. This unjust anomaly remained without formal redress until
the nineteenth century; and in 1817 the British public was startled to
find that a long-forgotten legal procedure of the dark ages still formed
part of the law of England. The body of a Warwickshire girl, Mary
Ashford, was discovered in a pit of water under circumstances which
suggested foul play. Suspicion fell on Abraham Thornton, who had been in
her company on the night when she disappeared. After indictment and
trial at Warwick Assizes on a charge of rape and murder, he was
acquitted. The girl’s eldest brother, William Ashford, was not satisfied
by what was apparently a perfectly honest verdict. He tried to secure a
second trial, and with this object claimed the ancient right of appeal
of felony, which the judges did not see their way to refuse. Ashford’s
attempt to revive this obsolete procedure was met by Thornton’s revival
of its equally obsolete counterpart. Summoned before the judges of
King’s Bench, he offered to defend himself by combat, throwing down as
“wager of battle” a glove of approved antique pattern. The judges had to
admit his legal right to defend himself against the appeal “by his
body,” and Thornton thus successfully foiled the attempt to force him to
a second trial, as the court never contemplated the possibility of a
medieval judicial combat being actually fought in the nineteenth
century. The appeal was withdrawn and the proceedings terminated.[774]
-----
Footnote 774:
See _Ashford v. Thornton_, 1 B. and Ald. 405-461.
-----
The unexpected revival of these legal curiosities of an earlier age led
to their final suppression. In 1819 a Statute was passed abolishing
proof by battle alike in criminal and in civil pleas; and the right of
appeal fell with it.[775]
-----
Footnote 775:
See 59 George III. c. 46.
CHAPTER THIRTY-SEVEN.
Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per
burgagium, et de alio terram teneat per servicium militare, nos non
habebimus custodiam heredis nec terre sue que est de feodo alterius,
occasione illius feodifirme, vel sokagii, vel burgagii; nec habebimus
custodiam illius feodifirme, vel sokagii, vel burgagii, nisi ipsa
feodifirma debeat servicium militare. Nos non habebimus custodiam
heredis vel terre alicujus, quam tenet de alio per servicium militare,
occasione alicujus parve serjanterie quam tenet de nobis per servicium
reddendi nobis cultellos, vel sagittas, vel hujusmodi.
If anyone holds of us by fee-farm, by socage, or by burgage, and holds
also land of another lord by knight’s service, we will not (by reason
of that fee-farm, socage, or burgage,) have the wardship of the heir,
or of such land of his as is of the fief of that other; nor shall we
have wardship of that fee-farm, socage, or burgage, unless such
fee-farm owes knight’s service. We will not by reason of any petty
serjeanty which anyone may hold of us by the service of rendering to
us knives, arrows, or the like, have wardship of his heir or of the
land which he holds of another lord by knight’s service.
By these provisions the Charter reverts once more to the subject of
wardship, laying down three rules which will be better understood when
their sequence is somewhat altered, the second being taken first.
(1) _Ordinary wardship._ The reason for claiming wardship from lands
held in chivalry, namely, that a boy tenant could not perform military
service, did not apply to fee-farm, to socage, or to burgage. There was
much looseness of usage, however; and of this John took full advantage.
The Charter stated the law explicitly; wardship was not due from any
such holdings, except in the somewhat anomalous cases where lands in
fee-farm expressly owed military service.[776] As petty serjeanties
(although mentioned in the present chapter in a different connection)
are not expressly said to share this exemption, it may be inferred that
the barons admitted John’s wardship over them, just as in the case of
great serjeanties. In Littleton’s time, the law had been changed. Petty
serjeanties were then exempt.[777]
-----
Footnote 776:
Cf. _supra_, pp. 66-70, and 75-7.
Footnote 777:
II. viii. s. 158.
-----
(2) _Prerogative wardship._ When a tenant-in-chivalry died leaving two
separate military fiefs held of different mesne lords, each of these
lords enjoyed, during the minority, wardship over his own fief. This was
perfectly fair to all parties; but if the ward held one estate of the
Crown, and another of a mesne lord, the king claimed wardship over both;
and that, too, even when the Crown fief was of small value.[778] Such
rights were known as “prerogative wardship,” and thus limited, were in
1215 perfectly legal, however inequitable they may now seem.
Footnote 778:
Cf. Glanvill, VII. c. 10. “When any one holds of the king _in capite_
the wardship over him belongs exclusively to the king, whether the
heir has any other lords or not; because the king can have no equal,
much less a superior.”
-----
(_a_) _Fee-farm, socage, and burgage._ John, however, pushed this right
further, and exercised prerogative wardship over fiefs of mesne lords,
not merely by occasion of Crown fiefs held in chivalry, but also by
occasion of Crown fiefs held by any other free tenure. It was outrageous
thus to claim prerogative wardship in respect of fee-farm, socage, or
burgage lands, which were themselves exempt from ordinary wardship. John
accordingly was made to promise amendment.[779]
-----
Footnote 779:
Glanvill, VII. c. 10, had laid it down that burgage tenure could not
give rise to prerogative wardship.
-----
(_b_) _Petty Serjeanties_[780] were in a slightly different position.
Although Magna Carta did not abolish the Crown’s rights of ordinary
wardship over these, it forbade that that should form an occasion of
prerogative wardship. The king might enjoy the custody of his own fief
if he pleased, but not of the wider fiefs of others on that
pretext.[781]
-----
Footnote 780:
See _supra_, p. 68.
Footnote 781:
See Bracton, _folio_ 87 b. The _Note Book_, case 743, contains a good
illustration. The motive for these restrictions was clearly to prevent
injustice to mesne lords. It was probably, however, an indirect
consequence of Magna Carta that a similar rule came to be applied
where no mesne lord was injuriously affected. In 1231 a certain Ralf
of Bradeley died who had held two separate freeholds of the Crown, (i)
a small fee by petty serjeanty for which he rendered twenty arrows a
year, and (ii) land of considerable value held in socage. The Crown
took possession of both estates, on the assumption that the admitted
right of wardship over the petty serjeanty brought with it a right of
wardship over the socage lands also (although these would have been
exempt if they had stood alone). The king sold his rights for 300
marks. Ralf’s widow claimed the wardship of the socage lands, on the
ground that these were of much greater value than those held by
serjeanty. Her argument was upheld, and the 300 marks were refunded by
the exchequer to the disappointed purchaser. See _Pipe Roll_, 5 Henry
III., cited Madox, I. 325-6.
-----
Prerogative wardship (even in the limited form admitted by Magna Carta)
might involve a double hardship on the mesne lord deprived by it of the
custody of his fief. Suppose that the common tenant held lands from a
mesne lord on condition of, say, five knights’ service, in addition to
his Crown fief. The king seized both fiefs on his death, nominally as a
compensation for the loss of military service, which the minor heir
could not render. Yet when a scutage ran the king demanded from the
mesne lord payments in proportion to his full _quota_ without allowing
for the fees of five knights taken from him by prerogative wardship.
This is no imaginary case. The barons in 1258 complained of the practice
and demanded redress.[782]
-----
Footnote 782:
See Petition of the Barons, article 2 (_Select Charters_, 383). C. 53
of Magna Carta reverts to prerogative wardship, granting redress,
although not summary redress, where John, or his father or brother,
had illegally extended it by occasion of socage, etc. See also
_supra_, p. 241.
-----
CHAPTER THIRTY-EIGHT.
Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua,
sine testibus fidelibus ad hoc inductis.
No bailiff for the future shall put any man to his “law” upon his own
mere word of mouth, without credible witnesses brought for this
purpose.
The evident intention of this provision was to prevent irregularities at
the critical stage of a trial, when the _lex_ appointed by the court was
attempted. This word _lex_, in its technical sense, may be correctly
applied to any form of judicial test, such as compurgation, ordeal, or
combat, the precise meaning required in each particular case being
determined by the context.[783] In this passage of Magna Carta, it may
be used in its widest connotation, but reasons will be immediately
adduced for the belief that _ordeal_ was specially present to the minds
of those who framed it. Bailiffs, (the word is a wide one, including
certainly the sheriffs and their underlings, and possibly also the
stewards who presided in manorial courts)[784] had evidently been guilty
of irregularities which public opinion of the day condemned. So much is
clear: but authorities differ widely as to the exact nature of the abuse
which is here prohibited.
-----
Footnote 783:
Dr. Stubbs (_Const. Hist._, I. 576) translates “_lex_” in this passage
by “compurgation or ordeal.” Pollock and Maitland (II. 604, n.)
explain that the word “does not necessarily point to unilateral
ordeal; it may well stand for trial by battle.” Thayer (_Evidence_,
199–200) extends it even further, so as to embrace judicially
appointed tests of every kind—battle, ordeal of fire or water, simple
oath, oath with compurgators, charter, transaction witnesses, or sworn
verdict. Bigelow (_Placita Anglo-Normannica_, 44) cites from Domesday
Book cases where litigants offered proof _omni lege_ or _omnibus
legibus_, that is, in any way the court decided. Sometimes _lex_ had a
more restricted meaning; in the Customs of Newcastle-on-Tyne _(Select
Charters_, 112) it seems to mean compurgation as opposed to combat.
-----
Footnote 784:
Cf _supra_, c. 24. Coke, _Second Institute_, p. 44, following the
doubtful authority of the _Mirror of Justices_, extends it to all
king’s justices and ministers. The unqualified “_ballivus_” of this
passage should, perhaps, be contrasted with the “_noster ballivus_” of
cc. 28 and 30.
-----
I. _Probable Object of the Chapter._ The key is supplied by the words of
article 4 of the Assize of Clarendon, the provisions of which still
regulated the Crown’s practice in criminal cases in the reign of John.
That ordinance explains the procedure to be followed when robbers,
murderers, or thieves, apprehended by the sheriffs upon indictment, were
brought before the justices for trial: “and the sheriffs shall bring
them before the justices; and with them they shall bring two lawful men
of the hundred and of the village where they were apprehended, to bear
the record of the county and of the hundred, as to why they had been
apprehended; and, there, before the justices they shall make their law.”
This “law” is elsewhere in the ordinance clearly identified with
ordeal;[785] and the purport of the whole was that accused men could not
be put to ordeal except in presence of two lawful men who had been
present at the indictment and had come before the justices specially to
bear witness thereof. In other words, the sheriff’s verbal report of the
indictment “_sine testibus fidelibus ad hoc inductis_” was not
sufficient. The “county” and the “hundred” which had accused the
prisoner must send representatives to bear record of the facts.[786]
-----
Footnote 785:
See article 12 where “_eat ad aquam_” is contrasted with “_non habeat
legem_” of article 13 (_Select Charters_, 144).
Footnote 786:
The “_ad portandum recordationem comitatus et hundredi_” of the
ordinance is exactly opposed to the “_simplex loquela sua_” of the
Charter.
The ordeal indeed was a solemn affair for which careful rules had been
laid down. Every precaution was taken against the sheriff abusing his
authority. His account of the indictment was checked by the presence of
subordinate officials as well as of these members of the accusing jury.
Moreover, lords of feudal courts, claiming this franchise, could only
exercise it under royal warrant. Henry, the inventor of the system,
sternly repressed all irregularities whether those of his own bailiffs
or of the stewards of private lords.[787]
-----
Footnote 787:
Thus in 1166 (the year of the Assize of Clarendon) the “_Soca_” of
Alverton was amerced because of a man placed “_ad aquam sine
serviente_” (_Pipe Roll_, 12 Henry II., p. 49 of edition of Pipe Roll
Society). In 1185 the “_villata_” of Preston paid 5 marks for putting
a man “_ad aquam sine waranto_” (_Pipe Roll_, 31 Henry II., cited
Madox, I. 547). In the same year a certain Roger owed half a mark for
being present at an ordeal “_sine visu servientum regis_”: and heavy
fines were exacted from those who had put a man “_injuste ad aquam_”
(_Ibid._). Apparently the bailiffs were sometimes described as the
king’s serjeants and sometimes as the sheriff’s serjeants: the same
Roll records fines for a man buried “_sine visu servientum
vicecomitis_” and for a robber hanged “_sine visu servientis regis_”
(_Pipe Roll_, 31 Henry II.).
-----
The same rules of procedure prevailed under John, who was less careful,
however, than his father had been, to suppress irregularities. In Magna
Carta he promised amendment. The presence of witnesses required by the
Assize of Clarendon was once more insisted on as a check upon the
capricious or unfair use of the ordeal. The Charter of 1216 repeated
this provision without alteration. In 1217, however, a change occurred,
which was undoubtedly a consequence of the virtual abolition of the
ordeal by the Lateran Council in 1215. The framers of Henry’s second
reissue, no longer so engrossed in pressing matters of state as they had
been in the previous year, found leisure to adjust points of
administrative detail. The simple reference to ordeal was inappropriate
now that new forms of trial were taking its place. The justices, indeed,
scarcely knew what test they should appoint, when ordeal had been
forbidden. They seem sometimes to have resorted to compurgation and
sometimes to battle; but the sworn verdict of neighbours was fast
occupying the ground left vacant. The new Charter then made it clear
that the provisions applied in 1215 to ordeal were to be extended to the
other tests which were now being substituted for it. The “_ad legem_” of
John’s Charter became in the new version “_ad legem manifestam nec ad
juramentum_,” which might very well include battle and the decisions of
jurors, as well as ordeal.[788]
-----
Footnote 788:
See Thayer, _Evidence_, 37, n. for a case of 1291, where “_ad legem
manifestam_” can only mean trial by combat. The Statute of Westminster
I. (3 Edward I. c. 12) described men refusing to put themselves on a
jury’s verdict, “_come ceaus qui refusent la commune ley de la
terre_.”
-----
II. _Medieval Interpretations of the Passage._ Ignorance of the exact
nature of the abuse prohibited may well be excused at the present day,
since it had become obscure within a century of the granting of the
Charter. Some legal notes of the early fourteenth century, containing
three alternative suggestions, have come down to us.[789]
-----
Footnote 789:
These appear as an appendix to the Year Book of 32-3 Edward I. (p.
516); but the handwriting is supposed to be of the reign of Edward II.
-----
(1) The first interpretation discussed, and apparently dismissed, in
these notes, was that Magna Carta by this prohibition wished to ensure
that no one should serve on a jury (_in juratam_) unless he had been
warned by a timely summons. This far-fetched suggestion is clearly
erroneous.
(2) The next hypothesis raised is that the clause prevented the
defendant on a writ of debt (or any similar writ) from winning his case
by his unsupported oath, where compurgators ought to have sworn along
with him. Exception was, in this view, taken to the bailiff treating
favoured _defendants_ in civil pleas with unfair leniency.
(3) A third opinion is stated and eulogized as a better one, namely that
the Charter prohibited bailiffs from showing undue favour to
_plaintiffs_ in civil pleas. The defendant on a writ of debt (or the
like) should not, in this interpretation of Magna Carta, be compelled to
go to proof at all (that is, to make his “law”) unless the plaintiff had
brought “suit” against him (that is, had raised a presumption that the
claim was good, by production of preliminary witnesses or by some
recognized equivalent).[790] This last of the three interpretations thus
suggested in the reign of Edward II. has its modern adherents, as will
immediately be shown; but the discussion inaugurated in Plantagenet days
has not yet received an authoritative settlement. It was discussed in
the Court of Common Pleas so recently as 1700,[791] and historians at
the present day differ as widely as do the lawyers.
-----
Footnote 790:
Cf. _supra_, pp. 101-2. The necessity for such “suit” was not legally
abolished until 1852 (by Statute 15 and 16 Victoria, c. 76, s. 55). In
1343 it had been decided that the “suit” must be in existence, but
need not be produced in court; and that if they did appear they could
not be examined. See Thayer, _Evidence_, 13–15.
Footnote 791:
See City of London _v._ Wood, cited _infra_.
-----
III. _Modern Interpretations of the Passage._ No two of the recent
authorities hold precisely similar opinions. Four views, at least, may
be distinguished. (1) The provision is sometimes regarded as an attempt
to prevent plaintiffs in civil suits from being treated with undue
favour to the prejudice of defendants. A “suit” of witnesses
(_sectatores_) had to be produced in court by the plaintiff before any
“trial” (_lex_) could take place at all. Bailiffs were forbidden to
allow, through slackness, favour, or bribery, this rule to be relaxed.
This interpretation, which was adopted by the author of the _Mirror of
Justices_, and by the writer of the notes appended to the Year Book
already cited, found favour with Chief Justice Holt in 1700.[792]
-----
Footnote 792:
See City of London _v._ Wood (12 Modern Reports, 669). Holt held the
clause of Magna Carta to mean that the plaintiff, unless he had his
witnesses, could not put a defendant to his oath. Pollock and
Maitland, II. 604, seem to concur, to the extent at least of counting
this as one of the abuses condemned by c. 38: “The rule which required
a suit of witnesses had been regarded as a valuable rule; in 1215 the
barons demanded that no exception to it should be allowed in favour of
royal officers.”
-----
(2) A second theory treats the clause as forbidding bailiffs (whether
royal officers or manorial stewards) to use their authority to forward
suits to which they happened to be parties. In certain circumstances, it
would seem, the steward who presided as his master’s representative over
the manorial court claimed the right to put a defendant to his proof,
without first producing “suit” or its equivalent, a privilege, however,
which he could exercise only once in every year. Royal bailiffs claimed
this privilege, and that without any similar restrictions. One object of
Magna Carta, in this view, was to reduce bailiffs to an equality with
other litigants. No longer should their bare assertion enable them to
dispense with the formalities which the court required from ordinary
plaintiffs before putting their adversaries to the risk of “a law” or
proof.[793]
-----
Footnote 793:
This reading is emphasized by Brunner, _Entstehung der
Schwurgerichte_, 199-200.
-----
(3) In marked contrast to these two theories, which read Magna Carta as
preventing undue favour to plaintiffs, comes a third which regards it as
forbidding undue favour to defendants. The Crown, it is pointed out,
favoured Jews against Christians with whom they went to law. The Hebrew
defendant in a civil suit “might purge himself by his bare oath on the
Pentateuch, whereas in a similar case a Christian, as the law then
stood, might be required to wage his law twelve-handed—_i.e._ with
eleven compurgators.”[794] Magna Carta, it has been suggested, struck at
this preferential treatment of Jewish litigants, trebly hated as aliens,
capitalists, and rejectors of Christ. If so, the attempt failed; for in
1275 a certain Hebrew, named Abraham, was allowed “to make his law
single-handed on his Book of the Jewish Law” in face of the plaintiff’s
protest that this was contrary to the custom of the realm.[795]
-----
Footnote 794:
See J. M. Rigg’s admirable preface to Sel. _Pleas from Rolls of Jewish
Exchequer_, p. xii., and cf. _supra_, c. 10.
Footnote 795:
See _Ibid._, p. 89, where the case is cited.
-----
(4) A fourth theory reads the chapter as a prohibition of undue severity
in criminal prosecutions. A formal indictment by the accusing jury must
always precede the “trial.” No bailiff ought to put anyone to the water
or the red-hot iron upon suspicion, or private information.[796] Much
may be said for this interpretation so far as it goes; but the Assize of
Clarendon and Magna Carta agree in demanding something more. It was not
enough that indictment should precede ordeal; they required that some
members of the presenting jury who had made the accusation at the first
diet should accompany the sheriff before the justices at the final diet,
there to bear testimony both as to the nature of the crime and as to the
fact of the indictment. Before anyone could be put “to his law,” the
sheriff’s verbal report must be corroborated by the testimony of
representative jurors.
-----
Footnote 796:
This reading is supported by Pollock and Maitland, I. 130, n. There is
no necessary inconsistency between the view here cited, and that
already cited from _Ibid._ II. 604. The same clause of Magna Carta may
have been aimed at irregularities of two kinds, in civil and criminal
pleas respectively.
-----
CHAPTER THIRTY-NINE.
Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut
utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum
ibimus, nec super eum mittemus, nisi per legale judicium parium suorum
vel per legem terre.
No freeman shall be arrested, or detained in prison, or deprived of
his freehold, or outlawed, or banished, or in any way molested; and we
will not set forth against him, nor send against him,[797] unless by
the lawful judgment of his peers and by the law of the land.
-----
Footnote 797:
The corresponding provision of the Articles of the Barons (29) adds
the word “_vi_” (“_nec rex eat vel mittat super eum vi_”). The idea of
open violence, thus clearly indicated, is expressed in contemporary
documents by the fuller phrase, _per vim et arma_. The accepted
translation, as contained in the _Statutes at Large_, “nor will we
pass upon him nor condemn him,” is thus inadequate. The editors of the
_Statutes of the Realm_, I. 117, suggest “deal with him” as an
alternative translation. Coke, it will be seen _infra_, is the
original source of the error which connects this “going” and “sending”
with legal process.
This chapter occupies a prominent place in law-books, and is of
considerable importance, although there are reasons for holding that its
value has been grossly exaggerated.
I. _Its Main Object._ It has been usual to read it as containing a
guarantee of trial by jury to all Englishmen; as absolutely prohibiting
arbitrary commitment; and as undertaking solemnly to dispense to all and
sundry an equal justice, full, free, and speedy.[798] The traditional
interpretation has thus made it, in the widest terms, a promise of law
and liberty, and good government to every one.[799] A careful analysis
of the words of the clause, read in connection with its historical
genesis, suggests the need for modifications of this view. It was in
accord with the practical genius of this great document that it should
direct its energies, not to the enunciation of vague platitudes and
well-sounding generalities, but to the reform of a specific and clearly
defined group of abuses. Its main object was to prohibit John from
resorting to what is sometimes whimsically known in Scotland as “Jeddart
justice.”[800] It forbade him for the future to place execution before
judgment. Three aspects of this prohibition may be emphasized.
-----
Footnote 798:
See, _e.g._, Coke, _Second Institute_, 55.
Footnote 799:
Thus Blackstone, _Commentaries_, IV. 424: “It protected every
individual of the nation in the free enjoyment of his life, his
liberty, and his property, unless declared to be forfeited by the
judgment of his peers or the law of the land.” Hallam, _Middle Ages_,
II. 448, speaking of cc. 39 and 40 together, says they “protect the
personal liberty and property of all freemen by giving security from
arbitrary imprisonment and arbitrary spoliation.” Creasy, _English
Constitution_, p. 151, n.: “The ultimate effect of this chapter was to
give and to guarantee full protection for person and property to every
human being that breathes English air.”
Footnote 800:
The same grim tradition applied to Lidford as to Jedburgh:
“I oft have heard of Lydford law,
How in the morn they hang and draw,
And sit in judgment after.”
See Neilson, _Trial by Combat_, 131, and authorities there cited.
-----
(1) _Judgment must precede execution._ In some isolated cases, happily
not numerous, John proceeded, or threatened to proceed, by force of arms
against recalcitrants as though assured of their guilt, without waiting
for legal procedure.[801] Complaint was made of arrests and
imprisonments suffered “without judgment” (_absque judicio_); and these
are the very words used in the "unknown charter"—“_Concedit Rex Johannes
quod non capiet homines absque judicio_.”[802] Both the Articles of the
Barons and Magna Carta expand this phrase. _Absque judicio becomes nisi
per legale judicium parium suorum vel per legem terre_, thus guarding,
not merely against the more obvious evil—execution without judgment—but
also against John’s subtler device for attacking his enemies by a
travesty of judicial process. The Charter asks not only for a
“judgment,” but for a “judgment of peers” and “according to the law of
the land.” Two species of irregularities were condemned by these words;
and these will be explained in the two following subsections.
-----
Footnote 801:
Mr. Bigelow considers that such cases were numerous. See _Procedure_,
155: “The practice of granting writs of execution without trial in the
courts appears to have been common.”
Footnote 802:
See Appendix.
-----
(2) _Per judicium parium_: every judgment must be delivered by the
accused man’s “equals.” The need for “a judgment of peers” was
recognized at an early date in England.[803] It was not originally a
class privilege of the aristocracy, but a right shared by all grades of
freeholders; whatever their rank they could not be tried by their
inferiors.[804] In this respect English custom did not differ from the
procedure prescribed by feudal usage on the Continent of Europe.[805]
Two applications of this general principle had, however, special
interest for the framers of Magna Carta: the “peers” of a Crown tenant
were his fellow Crown tenants, who would normally deliver judgment in
the _Curia Regis_; while the “peers” of the tenant of a mesne lord were
the other freeholding tenants assembled in the Court Baron of the manor.
In either case judgments were given _per pares curiae_, who decided what
“test” should be appointed, who thereafter sat as umpires while their
accused “peer” carried this through to success or failure, and who
finally pronounced a sentence in accordance with the result. Crown
tenants and under-tenants alike complained that they were deprived by
John of the only safeguard they could trust, the judgment of a full
court of Englishmen of their own rank, who presumably, therefore, had no
undue bias towards conviction. John, not here an innovator, but merely
resorting wholesale to practices used sparingly and with prudence in
earlier reigns, had set these rights openly at defiance. His political
and personal enemies were frequently exiled, or deprived of their
estates, by the judgment of a tribunal composed entirely of Crown
nominees ready to give any sentence which John might dictate. Magna
Carta promised a return to the recognized ancient practice. No freeman
should henceforth suffer in person or in property as the result of a
judgment by the professional judges forming the bench of Common Pleas,
or the other bench known as _coram rege_. This was to abolish not merely
the abuses of John, but the system of Henry II., which he abused.
-----
Footnote 803:
The earliest known reference occurs in the so-called _Leges Henrici
primi_ (c. 31). _Unusquisque per pares suos judicandus est et ejusdem
provinciae_.
Footnote 804:
Cf. Pollock and Maitland, I. 152, and authority cited. As there was no
“peerage” in England in the modern sense (cf. _supra_, p. 237) until
long after John’s reign, it is obvious that the _judicium parium_ of
Magna Carta must be interpreted in a broader sense than any mere
“privilege of a peer” at the present day. Every man’s equals were his
“peers.”
Footnote 805:
See Stubbs, _Const. Hist._, I. 578, n., for foreign examples of
_judicium parium_.
-----
The varied meanings conveyed by the word “peers” to a medieval mind,
together with the nature of _judicium parium_, may be further
illustrated by the special rules applicable to four exceptional classes
of individuals:—(_a_) all Jews of England and Normandy enjoyed under
John’s charter of 10th April, 1201, the right to have complaints against
them judged by men of their own race. For them a _judicium parium_ was a
judgment of Jews.[806] (_b_) A foreign merchant, by later statutes,
obtained the right to a special form of _judicium parium_—to a jury of
the “half tongue” (_de medietate linguae_), composed partly of aliens of
his own country.[807] (_c_) The peers of a Welshman seem, in some
disputes with the Crown, to have been men drawn from the marches, and
therefore unlikely to side entirely either with the English or with the
Welsh point of view. Such at least is the most plausible interpretation
of the phrase “_in marchia per judicium parium suorum_,” occurring in
later chapters of Magna Carta, and granting to the Welsh redress of
wrongful disseisins.[808] (_d_) A Lord Marcher occupied a peculiar
position, enjoying rights denied to barons whose estates lay in more
settled parts of England. In 1281 the Earl of Gloucester, accused by
Edward I. of a breach of allegiance, claimed to be judged, not by the
whole body of Crown tenants, but by such as were, like himself, lords
marchers.[809] These illustrations show that a “trial by peers” had a
wider and less stereotyped meaning in the Middle Ages than it has at the
present day.[810]
-----
Footnote 806:
“If a Christian bring a complaint against a Jew, let it be adjudged by
his peers of the Jews.” See _Rot. Chartarum_, p. 93, and _supra_ p.
269.
Footnote 807:
See _Carta Mercatoria_, c. 8; 27 Edward III. stat. 2, c. 8; and 28
Edward III. c. 13; also Thayer, _Evidence_, p. 94.
Footnote 808:
See _infra_, cc. 56, 57, and 58. Under c. 59 the barons of England
were called peers of the King of Scots.
Footnote 809:
See _Placitorum Abbreviatio_, p. 201, cited Pollock and Maitland, I.
393 n.
Footnote 810:
See also a passage in the Scots Acts of Parliament (I. 318) attributed
to David: “No man shall be judged by his inferior who is not his peer;
the earl shall be judged by the earl, the baron by the baron, the
vavassor by the vavassor, the burgess by the burgess; but an inferior
may be judged by a superior.”
-----
(3) _Per legem terrae._ No freeman could be punished except in
accordance with the law of England. These often-quoted words were used
in Magna Carta with special though not perhaps exclusive reference to
the narrow technical meaning of “_lex_” which was so prominent in 1215
and which has been already explained.[811] The Great Charter promised
that no plea, civil or criminal, should henceforth be decided against
any freeman until he had failed in the customary "proof"—whether battle,
or ordeal, or otherwise.[812]
-----
Footnote 811:
See _supra_, p. 103, and cc. 18, 36, and 38.
Footnote 812:
See Thayer, _Evidence_, 200–1, for a discussion of the phrase “_lex
terrae_.” See also Bigelow, _History of Procedure_, 155, n.: “The
expression ‘_per legem terrae_’ simply required judicial proceedings,
according to the nature of the case; the duel, ordeal, or
compurgation, in criminal cases, the duel, witnesses, charters, or
recognition in property cases.” The words occur at least twice in
Glanvill, each time apparently with the technical meaning. In II. c.
19, the penalty for a false verdict includes forfeiture by jurors of
their law (“_legem terrae amittentes_”); while in V. c. 5, a man born
a villein, though freed by his lord, cannot, to the prejudice of any
stranger, wage his law (“_ad aliquam legem terrae faciendam_”). The
stress placed on the accused’s right to the time-honoured forms of
_lex_ is well illustrated by the difficulty of substituting jury trial
for ordeal. It has already been shown that the right of “standing
mute,” that is, virtually, of demanding ordeal, was only abolished in
1772. See _supra_, p. 400. Five and a half centuries were thus allowed
to pass before the criminal law was bold enough, in defiance of a
fundamental principle of Magna Carta, to deprive accused men of their
“law.”
-----
This older, more technical signification was gradually forgotten, and
“the law of the land” became the vague and somewhat meaningless phrase
of the popular speech of to-day. It was only natural that this change of
meaning should be reflected in subsequent statutes reaffirming,
expanding, or explaining Magna Carta. An important series of these,
passed in the reigns of Edward III. and Richard II., shows how the _per
legem terrae_ of 1215 was read in the fourteenth century as equivalent
to the wider expression “by due process of law,” and how the Great
Charter was interpreted as prohibiting the trial of men for their lives
and limbs before the King’s Council on mere informal and irresponsible
suggestions, sometimes made loosely or from malicious and interested
motives.[813]
-----
Footnote 813:
It would seem, however, from the words of these statutes that for this
purpose the provisions of chapters 36 and 38 were used to supplement
those of the present chapter, if they were not confused with them. See
5 Edward III. c. 9; 25 Edward III. stat. 5, c. 4; 37 Edward III. c.
18; 38 Edward III. c. 3; 42 Edward III. c. 3; 17 Richard II. c. 6. See
also Stubbs, _Const. Hist._, II. 637-9, for the series of petitions
beginning with 1351.
The Act of 1352, for example, after reciting the provision of Magna
Carta at present under discussion, insisted on the necessity of
“indictment or presentment of good and lawful people of the same
neighbourhood where such deeds be done.” Coke,[814] founding apparently
on the terms of these fourteenth-century statutes, makes “_per legem
terrae_” of the Charter equivalent to “by due process of law” and that
again to “by indictment or presentment of good and lawful men,” thus
finding the grand jury enshrined in Magna Carta. The framers of the
Petition of Right[815] read the same words as a prohibition, not only of
imprisonment “without any cause showed” but also of proceedings under
martial law, thus interpreting the aims of King John’s opponents in the
light of the misdeeds of King Charles, and applying to the rude system
established by Henry of Anjou reforms more appropriate to the highly
developed administration of the Tudors.
-----
Footnote 814:
_Second Institute_, p. 46.
Footnote 815:
3 Charles I. c. 1.
-----
These glosses must be discarded; the words of John’s Charter promised a
threefold security to all the freemen of England. Their persons and
property were protected from the king’s arbitrary will by the rule that
execution should be preceded by a judgment—by a judgment of peers—by a
judgment according to the appropriate time-honoured “test,” battle,
compurgation, or ordeal.
(4) _The meaning of “vel.”_ The peculiar use of the word “_vel_”
introduced an unfortunate element of ambiguity. No proceedings were to
take place "without lawful judgment of peers or by the law of the
land"—“or” thus occurring where “and” might naturally be expected.
Authorities on medieval Latin are agreed, however, that “_vel_” is
sometimes equivalent to _et_.[816] Comparison with the terms of chapter
52 and with those of the corresponding Article of the Barons places the
matter almost beyond doubt. The 25th of the Articles of the Barons had
provided that all men disseised by Henry or Richard should “have right
without delay by judgment of their peers in the king’s court,” giving no
hint of any possible alternative to _judicium parium_. Chapter 52 of the
Charter, in supplementing the present chapter, describes the evils
complained of in both as acts of disseisin or outlawry by the king
“_sine legale judicio parium suorum_,” leaving no room for ambiguity.
-----
Footnote 816:
Pollock and Maitland, I. 152, n., read the word as having _both_
meanings in this passage. Cf. Gneist, _Engl. Const._, chapter xviii.
Mr. Pike, _House of Lords_, 170, takes an opposite view: “King John
bound himself in such a manner as to show that judgment of peers was
one thing, the law of the land another. The judgment of peers was ...
a very simple matter and well understood at the time. The law of the
land included all legal proceedings, civil or criminal, other than the
judgment of peers.” The present writer rejects this antithesis,
because the two things may be, and indeed must be, combined. The
“trial” by a law and the “judgment” by equals were complementary of
each other. The peers appointed the test and decided whether it had
been properly fulfilled.
-----
II. _The Scope of the Protection afforded._ The object of the barons was
to protect themselves and their friends against the king, not to set
forth a scientific system of jurisprudence: the _judicium parium_ was
interposed as a barrier against prosecutions instituted by the king, not
against appeals of private individuals. Pleas following upon accusations
by the injured party were held in 1471 not to fall within the words of
Magna Carta.[817] This was a serious limitation; but as against the
Crown the scope of the protection afforded by the Great Charter was very
wide indeed. Care was taken that the three-fold safeguard should cover
every form of abuse likely to be practised by John.
-----
Footnote 817:
See, _e.g._, Pike, _House of Lords_, 217, citing Littleton in _Year
Book_, Easter, 10 Edward IV., No. 17, fo. 6.
-----
(1) _Capiatur vel imprisonetur._ If these two words were literally
interpreted, and the provision they embody strictly enforced, all
orderly government would be at an end. When a crime has been committed,
the offender must be arrested and provisionally detained, without
waiting for any judgment, whether of peers or otherwise. A man accused
of crime may, indeed, justly demand three things: a trial before
condemnation, that the trial be not too long delayed, and that under
some circumstances he should be meanwhile released on bail. Magna Carta
goes further, promising complete exemption from arrest until judgment
had been passed upon him. Here the barons extorted a wider concession
than could possibly be enforced. Their excess of caution had led them to
use a loose and dangerously wide phrase, which ought not to be too
literally interpreted.[818]
-----
Footnote 818:
If “_vel_” might be translated by “and” and “_imprisonetur_” by
“detained in gaol,” the phrase would then mean that no freeman should
be kept too long in prison pending his trial, or permanently
imprisoned without trial.
-----
(2) _Aut disseisiatur._ Avarice was one of the most frequent motives of
John’s oppressions: the whole machinery of justice was valued primarily
as an engine for transferring land and money to his treasury. Crown
tenants frequently found their estates appropriated by the Crown as
escheats. That this was one of their grievances to which the barons
attached supreme importance is shown in many ways: by the care taken in
the 25th of the Articles of the Barons and in chapter 52 of the Charter
to provide procedure for restoring to their rightful owners estates of
which they had been improperly “disseised,”[819] and by the terms of
certain writs issued by John after the treaty at Runnymede, for example
the letter of 19th June to his half-brother, the Earl of Salisbury,
explaining that peace had been made on condition of the immediate
restoration of all “lands, castles, and franchises from which we have
caused any one to be disseised _injuste et sine judicio_.”[820]
-----
Footnote 819:
For this word cf. _supra_, c. 18. The treaty entered into by John in
1191 (discussed _infra_) speaks of the “disseisin of chattels,”
showing that the word had not yet been absolutely restricted to real
estate.
Footnote 820:
See _Rot. Claus._, I. 215. Mr. Pike (_House of Lords_, p. 170)
maintains, indeed, that the prevention of disseisins “_sine judicio_”
was the chief, if not the sole, object of the chapter under
discussion:—“The judgment of peers had reference chiefly to the right
of landholders to their lands, or to some matters connected with
feudal tenure and its incidents.” This goes too far: the barons by no
means confined the safeguard afforded by the _judicium parium_ to
questions of land and land-tenure. Pollock and Maitland, I. 393,
countenance a broader interpretation. One point is beyond doubt:
_judicium parium_ extended to the assessing of amercements. In c. 21
earls and barons are confirmed in the right to be amerced only _per
pares suos_.
Later versions of Magna Carta (beginning with that of 1217) are careful
to define the objects to be protected from disseisin: “free tenements,
franchises, and free customs.”[821] (_a_) _Liberum tenementum._ “Free”
tenements were freeholds as opposed to the holdings of villeins. None of
their belongings thus protected were more highly valued by the barons
than their feudal strongholds.[822] Castles claimed by great lords as
their own property are mentioned in many writs of the period—for
example, in that to the Earl of Salisbury already cited—while chapter 52
of Magna Carta gives them a prominent place among the “disseisins” to be
restored. (_b_) “_Libertates_” covered feudal rights and incidents of
too intangible nature to be appropriately described as “holdings.” In a
sense, all the rights secured by Magna Carta were “liberties”; but the
word is probably used here as equivalent to “franchises,” embracing
feudal jurisdictions, immunities, and privileges of various sorts, all
treated by medieval law as falling within the category of “property.”
(_c_) _Consuetudines_ had two meanings, a broad general one and a
narrower financial one.[823] As the Charter of 1217 uses a proprietary
pronoun (no freeman shall be disseised of _his_ free customs), it
probably refers to such rights as those of levying tolls and tallages.
These vested interests were of the nature of monopolies throughout the
territory of the lord who enjoyed them; and it follows that Coke, in
treating this passage as a text on which to preach the doctrine that
monopolies have always been illegal in England, aims unusually wide of
his mark. Commenting on the words “_de libertatibus_,” he declares that
“generally all monopolies are against this great charter, because they
are against the liberty and freedom of the subject and against the law
of the land.”[824] In this error he has been assiduously followed.[825]
-----
Footnote 821:
_De libero tenemento suo vel libertatibus vel liberis consuetudinibus
suis._
Footnote 822:
Cf. _supra_, p. 176.
Footnote 823:
Cf. _supra_, p. 290.
Footnote 824:
_Second Institute_, p. 47.
Footnote 825:
See, _e.g._, Creasy, _Hist. of Const._, p. 151, n.: “Monopolies in
general are against the enactments of the Great Charter.” See also
Taswell-Langmead, _Eng. Const. Hist._, 108.
-----
(3) _Aut utlagetur, aut exuletur, aut aliquo modo destruatur._ The
practice of placing outside the protection of the law such evildoers as
could not be brought to justice had its origin in those early days when
the existing machinery of law was inadequate to the work required of it.
With the progress of order and organization, the criminal’s chances of
evading justice became fewer; and the declaration of outlawry, which
could only be made in the county court, tended to become a mere
formality, preliminary to the forfeiture of the outlaw’s lands and
goods. The expedient was one which recommended itself peculiarly to
John’s genius; it was his deliberate policy to terrify those with whom
he had quarrelled, until they fled the country; then to summon them
three times before the county court to answer the charges against them,
knowing well that they dared not face his corrupt and servile officers;
and finally to have them formally outlawed and their property seized.
Such had been the fate suffered by two of the baronial leaders, Robert
Fitz Walter and Eustace de Vesci, in the autumn of 1212.[826] Outlawry
was not always, however, a mere formality in John’s reign. The man who
had been outlawed was outside the pale of society; anyone might slay him
at pleasure; in the grim phrase of the day, he bore "a wolf’s head"
(_caput lupinum_), and might be hunted like a noxious beast. A reward of
two marks was offered for each outlaw’s head brought to Westminster.
This sum was paid in 1196 for the head of William of Elleford.[827] The
word “exiled” explains itself; and commentators have very properly noted
the care taken to widen the scope of the clause by the use of the words
“or in any other way molested.”[828]
-----
Footnote 826:
See _supra_, p. 30.
Footnote 827:
See _Pipe Rolls_, 7 Richard I., cited by Madox, I. 201.
Footnote 828:
_E.g._, Coke, _Second Institute_, p. 48.
-----
(4) “_Nec super eum ibimus, nec super eum mittemus._” These words have
been frequently misinterpreted. They must be viewed in the light of the
historical incidents of the immediately preceding years; and, so read,
they present no difficulties, and leave no room for ambiguity. Their
object was to prevent John from substituting violence for legal process;
from taking the law into his own hands and “going against them” with an
army at his back, or “sending against them” in similar wise. He must
never again attack _per vim et arma_ men unjudged and uncondemned.
The meaning is plain. Yet Coke, following his vicious method of assuming
the existence, in some part of Magna Carta, of a warrant for every legal
principle established in his own day, has utterly misled several
generations of commentators. He maintained that what John promised was
to refrain from raising in his own courts actions in which he was
personally interested. In elaborating this error, he drew a fine
distinction between the court of King’s Bench, otherwise known as _coram
rege_, because the king was always in theory present there, and other
courts in which were present only those to whom he had delegated
authority by a writ “sent” to it. _Ibimus_, he seems to think, applied
in the former case; _mittemus_ in the latter. To quote his own words,
"No man shall be condemned at the king’s suit, either before the king in
his bench, where the pleas are _coram rege_ (and so are the words, _nec
super eum ibimus_, to be understood) nor before any other commissioner,
or judge whatsoever (and so are the words, _nec super eum mittemus_, to
be understood), but by the judgment of his peers, that is, equals, or
according to the law of the land."[829] Coke is completely in error; it
was the use of brute force, not merely a limited form of legal process,
which John in these words renounced.
-----
Footnote 829:
See _Second Institute_, page 46. John Reeves, _History of English
Law_, I. 249 (third ed.), while condemning Coke, gives an even more
strained interpretation of his own, founded on the chance
juxtaposition of the two verbs in one passage of the Digest. On quite
inconclusive grounds he draws the inference that both words refer
exclusively to diligence against "goods and chattels"—diligence
against the person, and diligence against landed estate having
previously been treated in words specially appropriate to each of them
respectively. Dr. Lingard, _History of England_, III. c. 1, deserves
praise as the first commentator who took the correct view.
-----
III. _What Classes of Men enjoyed the Protection of Judicium Parium?_ No
“freeman” was to be molested in any of the ways specified; but how far
in the social scale did this description descend? Coke claims the
villeins as free for the purposes of this chapter and of chapter I.,
while rejecting them for the purposes of chapter 20.[830] His right to
the status of a freeman has already been disallowed,[831] and any
possible ambiguity as to his share in the benefits of the present
chapter is removed by the deliberate words of the revised version of
1217. Chapter 35 of that reissue, with the object of making its meaning
clearer, inserts after “_disseisiatur_” the words (already discussed)
“_de libero tenemento suo vel libertatibus vel liberis consuetudinibus
suis_.” Mr. Prothero suggests that this addition implies an advance on
the privileges secured in 1215:—"It is worth while to notice that the
words in which these liberties are stated in §35 of the charter of 1217
are considerably fuller and clearer than the corresponding declaration
in the charter of 1215."[832] It is safer to infer that no change was
here intended, but merely the removal of ambiguity. If there is a change
it is rather a contraction than an extension, making it clear that only
“free” tenements are protected, and excluding carefully the property of
villeins and even holdings of _villenagium_ (or unfree land) belonging
to freemen.[833] Care was thus taken to make it plain beyond any
reasonable doubt that no villein should have part or lot in rights
hailed by generations of commentators as the national heritage of all
Englishmen.[834]
-----
Footnote 830:
_Second Institute_, pp. 4, 27, and 45.
Footnote 831:
See _supra_, c. 20.
Footnote 832:
_Simon de Montfort_, 17, n. Cf. Blackstone, _Great Charter_, xxxvii.,
“the more ample provision against unlawful disseisins.”
Footnote 833:
Cf. Pollock and Maitland, I. 340, n.
Footnote 834:
Cf. _supra_, p. 142. Other verbal changes in the charter of 1217 show
the same care to exclude the villeins. _E.g._ c. 16 leaves the king’s
demesne villeins strictly “in his mercy,” that is, liable to
amercement without any reservation.
-----
IV. _Reactionary Side of these Provisions._ To insist rigorously that in
all cases a judgment of feudal peers, either in King’s Court or in Court
Baron, should take the place of a judgment by the officials of the
Common Bench and the King’s Bench, was to reverse one of the outstanding
features of the policy of Henry II. In this respect, the present chapter
may be read in connection with chapter 34. The barons, indeed, were not
strict logicians, and probably thought it prudent to claim more than
they intended to enforce.[835] Yet a real danger lurked in these
provisions; the clause was, after all allowance has been made, a
reactionary one, tending to the restoration of feudal privileges and
feudal jurisdictions, inimical alike to the Crown and to the growth of
really popular liberties. John promised that feudal justice (as before
the reforms of his father) should be dispensed in feudal courts; and, if
this promise had been kept, the result would have been to check the
development of the small committees destined to become at no distant
date the Courts of King’s Bench and Common Pleas, and to revive the
fast-waning jurisdictions of the manorial courts on the one hand and of
the _commune concilium_ on the other.[836]
-----
Footnote 835:
Mr. G. H. Blakesley in an able article in the _Law Quarterly Review_,
V. 125, goes so far as to reduce the entire chapter to an attempt to
protect feudal justice in its struggle with royal justice. "It may
reasonably be suspected that cap. 39 also was directed merely to
maintain the lord’s court against Crown encroachments."
Footnote 836:
Mr. Pike, _House of Lords_, 170–4, shares this view of the reactionary
nature of the clause, although he considers that the claim to
_judicium parium_ by a Crown tenant might be satisfied by the presence
of one or more fellow barons among the judges of the “Benches,” and
did not necessarily involve a full meeting of the _commune concilium_
summoned in the accustomed way. _Ibid._, p. 204. If the “judgment” of
the full court was requisite (and, in spite of the high authority of
Mr. Pike, there is much to be said for that contention), then the
reactionary feudal tendency is even more prominent. This feudal
tendency is emphasized by the consideration that private franchises
and private castles bulked prominently among the rights of property
protected from arbitrary seizure by the king.
-----
V. _The Genesis of the Chapter._ The interpretation here given of this
famous chapter is emphasized by a comparison of its words with certain
earlier documents and events. The reigns of Richard and John furnish
abundant examples of the abuses complained of. In 1191 Prince John, as
leader of the opposition against his brother’s Chancellor, William
Longchamp, concluded a treaty protecting himself and his allies from the
very evils which John subsequently committed against his own barons. The
words of this treaty of 1191 admirably bring out what Richard’s barons
sought to secure, and what they sought to escape. Longchamp conceded in
Richard’s name that the bishops and abbots, earls and barons,
“vavassors” and free-tenants, should not be disseised of their lands and
chattels at the will of the justices or ministers of the king, but that
they should be dealt with by judgment of the king’s court according to
the lawful customs and assizes, or by the king’s command.[837] The
magnates were not to be judged by officials whom they despised as their
social inferiors and mistrusted as the paid instruments of royal
tyranny; their claim to be tried by their equals in the king’s court was
granted.
-----
Footnote 837:
See R. Hoveden, III. 136. This truce, which was dated 28th July, 1191,
had been brought about by the mediation of the archbishop of Rouen and
of certain of the English prelates.
-----
Now, the main subject of the arbitration, ending in the treaty from
which this excerpt has been taken, was the custody of certain castles
and estates. After the right to occupy each separate castle in dispute
had been carefully determined, provision was then made, in the general
words cited above, against this arrangement being disturbed without a
judgment of the _curia regis_. Disseisin, and particularly disseisin of
castles, was thus in 1191, as in 1215, a topic of special prominence.
Early in 1213 the king attempted to take vengeance upon his opponents in
a manner which they are not likely to have forgotten two years later at
Runnymede, and which probably influenced the wording of the present
chapter. John, resenting bitterly the attitude of the northern barons
who had refused alike to accompany him to Poitou and to pay scutage,
determined to take the law into his own hands. Without summoning his
opponents before a _commune concilium_ of his feudal tenants, without
even a trial and sentence by one of his Benches, without making any
effort to investigate the justice or injustice of their pleas for
refusing, he set out with an army to punish them. He had gone as far
north as Northampton on his mission of vengeance when he was overtaken
by the archbishop of Canterbury, a strong advocate of conciliation. On
28th August, 1213, Stephen Langton persuaded the king to defer forcible
proceedings _until he had obtained a legal sentence_ in a formal
_Curia_.[838] That John once again threatened recourse to violent
methods may be safely inferred from the words of a letter patent issued
in May, 1215, when both sides were armed for war. He proposed
arbitration, and promised a truce until the arbitrators had given their
award. The words of this promise are notable; since, not only do they
illustrate the procedure of August, 1213, but they agree closely with
the clause of Magna Carta under discussion. The words are:—“Know that we
have conceded to our _barons_ who are against us, that we shall not take
or disseise them or their men, nor shall we go against them _per vim vel
per arma_, unless by the law of our kingdom, or by the judgment of their
peers _in curia nostra_.”[839] Magna Carta repeats this concession in
more general terms, substituting “freemen” for the “barons” of the
writ—an alteration which necessitated the omission from the charter of
the concluding words of the writ, “_in curia nostra_”; because the peers
of freemen, other than barons, would be found, not among the barons in
the king’s court, but among the freeholders in the court baron.[840]
-----
Footnote 838:
Cf. _supra_, p. 35.
Footnote 839:
The writ is dated 10th May, 1215, and appears in _New Rymer_, I. 128.
Footnote 840:
Magna Carta also omits as unnecessary “_per vim et arma_,” though the
Articles of the Barons had contained the word “_vi_.”
-----
The words of Magna Carta, taken in connection with the treaty of 1191
and the writ of 1213, are thus seen to have a narrower meaning than that
extracted from them by subsequent commentators.
VI. _Later History of “Judgment of Peers.”_ The claim made by the barons
at Runnymede was re-asserted in somewhat varying forms by the same
barons or by their descendants on many subsequent occasions. The
“_judicium parium_” was destined to enjoy a long and brilliant career,
and the interpretations put upon it by the Crown and by the opposition
respectively, while interesting in themselves, afford strong
confirmation of the somewhat restricted estimate of the scope of the
present chapter, which has been above enunciated.
(1) _The baronial contention._ The earls and barons, throughout the
reign of John’s unhappy son, attempted to place a broad interpretation
on the privilege secured to them by this chapter—claiming that all
pleas, civil and criminal (such at least as were raised against them at
the instance of the Crown) should be tried by their fellow earls and
barons, and not by professional judges of lower rank.
(2) _The royal contention._ The Crown, on the other hand, while not
openly infringing the charter, tried to narrow its scope. The judges
appointed by the king to determine pleas _coram rege_, no matter what
their original status might be, became (so the Crown argued) by such
appointment, the peers of any baron or earl. This doctrine was
enunciated in 1233 when Henry III. and his justiciar, Peter des Roches,
denounced Richard, Earl Marshal, as a traitor, in a meeting
(_colloquium_) of Crown tenants held at Gloucester on 14th August of
that year. Thereafter, “_absque judicio curiae suae et parium suorum_,”
as Matthew Paris carefully relates,[841] Henry treated earl Richard and
his friends as outlaws, and bestowed their lands on his own Poitevin
favourites. An attempt was made, at a subsequent meeting held on 9th
October, to have these proceedings reversed on the ground, already
stated, that they had taken place _absque judicio parium suorum_.
-----
Footnote 841:
_Chron. Maj._, III. 247-8.
-----
The sequel makes clear a point left vague in Matthew’s narrative: there
had been a judgment previous to the seizure, but only a judgment of
Crown officials _coram rege_, not of earls and barons in the _commune
concilium_. The justiciar defended the action of the government by a
striking argument: “there were no peers in England, such as were in the
kingdom of France,” and, therefore, John might employ his justices to
condemn all ranks of traitors.[842] Bishop Peter was here seeking to
evade the provisions of Magna Carta without openly defying them, and his
line of argument was that the king’s professional judges, however lowly
born, were the peers of an English earl or baron.[843] Neither the royal
view nor the baronial view entirely prevailed. A distinction, however,
must be drawn between criminal and civil pleas.
-----
Footnote 842:
M. Paris, _Ibid._, III. 251-2.
Footnote 843:
Pollock and Maitland, I. 393, hesitate to condemn this argument. "The
very title of the ‘barons’ of the Exchequer forbids us to treat this
as mere insolence." Dr. Stubbs has no such scruples: “The Bishop
replied contemptuously, and with a perverse misrepresentation of the
English law” (_Const. Hist._, II. 49). Elsewhere he makes him, not so
much contemptuous, as ill-informed of the law—“ignorant blunder as it
was” (II. 191). Yet Bishop Peter had presumably a more intimate
knowledge of the law he administered as justiciar in 1233 than any
modern writer can have. In the matter of amercements, at least, the
barons of the exchequer acted as the peers of earls and barons.
-----
(3) _Criminal pleas._ Offenders of the rank of barons partially made
good their claim to a trial by equals; while all other classes failed. A
further distinction is thus necessary. (_a_) _Crown tenants._ The
conflicting views held by king and baronage here resulted in a
compromise. In criminal pleas, the Crown was obliged to recede from the
high ground taken by Peter des Roches in 1233. Unwillingly, and with an
attempt to disguise the fact of surrender by confusing the issue,
Bracton in theory and Henry III. in practice admitted part of the
barons’ demand, namely, “that in cases of alleged treason and felony,
when forfeiture or escheat was involved, they should be judged only by
earls and barons.”[844] This concession was by no means based on the
broad ground taken by the Charter. Bracton does not admit that the
king’s justices were not “peers” of barons; but deduces their disability
from the narrower consideration that the king, through his officials,
ought not to be judge in his own behalf, since his interests in escheats
might bias his judgment. This is the reason why, from Bracton’s day to
our own, “the privilege of peers,” which gradually assumed its modern
form, has never extended to misdemeanours, since such convictions never
involved forfeiture or escheat to the Crown.
-----
Footnote 844:
Pike, _House of Lords_, 173. See also Bracton, f. 119; Pollock and
Maitland, I. 393.
-----
The manner of giving effect to this concession is noteworthy. The
_judicium parium_ was secured to earls and barons in later reigns, not
merely by giving seats on the judicial bench to a few holders of
“baronies,” but by bringing the case before the entire body of earls and
barons in _commune concilium_. What the barons got at first was
“judgment” by peers. The actual “trial” was the “battle,” the
fellow-peers acting as umpires and enforcing fair play.[845] Although
new modes of procedure came to prevail, the Court of Peers continued its
control, and the _judgment_ of peers gradually passed into the modern
_trial_ by peers.[846] The subject has been further complicated by the
gradual growth of the modern conception of a “peerage,” embracing
various grades of “nobles.” In essentials, however, the rights of a
baron (or of any magnate of higher grade) accused of crime have remained
unchanged from the days of Henry III. to our own. The privilege of
“trial by peers,” whatever the reason underlying it, still extends to
treason and felony, and is still excluded from misdemeanours. When
competent it still takes place before a "Court of Peers"—namely, the
House of Lords if Parliament is in session, and the Court of the Lord
High Steward if not. Petty offences committed by peers, like those
committed by commoners, come before the ordinary courts of law. Under
these limitations, then, the privilege of a peer to be tried only in the
House of Lords (or in the Court of the Lord High Steward) has been for
centuries a reality in England for earls and barons, and also for
members of those other ranks of the modern “peerage” unknown in
1215—dukes, marquesses, and viscounts.[847]
-----
Footnote 845:
“The trial, therefore—the ascertaining of the fact—was, though under
the direction and control of the Court of Peers, by battle; but the
judgment on the trial by battle was to be given by the peers.” Pike,
_House of Lords_, 174.
Footnote 846:
Pike, _Ibid._, 174–9.
Footnote 847:
The privilege was extended to peeresses by the statute 20 Henry VI. c.
9.
-----
(_b_) _For tenants of a mesne lord_, however, no similar privilege has
been established, even in a restricted form. In charges of felony, as in
those of misdemeanour, all freemen outside the peerage are tried, and
have been tried for many centuries past, in the ordinary courts of law.
There is no privileged treatment for the knight or the landed gentleman.
All are judged in the same tribunals and by the same procedure. Private
feudal courts never recovered from the wounds inflicted by Henry II. The
clauses of Magna Carta which sought to revive them were rendered
nugatory by legal fictions or simply by neglect.
(4) _Civil pleas._ Various attempts were made by the barons as a class,
or by its influential members, to make good a claim to _judicium parium_
in civil cases.[848] The chief anxiety, perhaps, of the men of 1215 was
to save their estates and castles from disseisin consequent on such
pleas. Yet the barons’ efforts in this direction were entirely
unsuccessful. The House of Lords (except in cases involving the dignity
or status of a peer) has never claimed to act as a court of first
instance in civil cases to which a peer was a party. Noble and commoner
are here perfectly on a level. No “peer of the realm” has for many
centuries asked to plead before a special court of his peers in any
ordinary non-criminal litigation, whether affecting his real or his
personal estate.
-----
Footnote 848:
The Earl of Chester claimed it in 1236-7, and the Earl of Gloucester
(in a special form as a lord marcher) in 1281. See Pollock and
Maitland, I. 393, n.
-----
VII. _Erroneous Interpretations._ The general tendency to vagueness and
exaggeration has already been incidentally discussed. Two mistakes of
unusual persistence require more detailed notice.
(1) _The identification of_ judicium parium _with trial by jury_. The
words of the present chapter form the main, if not the sole, ground on
which this traditional error has been based.[849] The mistake probably
owes its origin to a not unnatural tendency of later generations of
lawyers to explain what was unfamiliar in the Great Charter by what was
familiar in their own experience. They found nothing in their own day to
correspond with the _judicium parium_ of 1215, so far at least as
affected those who were not Crown tenants; they found nothing in Magna
Carta (unless it were this clause) to correspond with their own trial by
jury: therefore they identified the two, interpreting the present
chapter as a general guarantee of the right to trial by jury.[850] Mr.
Reeves, Dr. Gneist, and other writers long ago exposed this error, but
the most conclusive refutations are those recently given by Prof.
Maitland and Mr. Pike. The arguments by which these writers prove that
“judgment by peers” is one thing and the “verdict of a jury” quite a
different thing are of a somewhat technical nature;[851] but as their
importance is far-reaching they must be explained, however briefly. They
seem to be mainly three in number:
-----
Footnote 849:
Cf. _supra_, pp. 158-163.
Footnote 850:
The erroneous identification of judgment of peers with trial by jury
can be found far back in legal history. Pollock and Maitland, II.
622-3, n., trace it to within a century of Magna Carta. "This mistake
is being made already in Edward I.’s day; Y. B. 30-1 Edward I., p.
531.“ In spite of modern research the error dies hard. It appears,
_e.g._, in Thomson, _Magna Charta_, 223, and in Taswell-Langmead,
_Const. Hist._, 110. It was repeated only the other day by so high an
authority as Dr. Goldwin Smith in his recently published work, ”_The
United Kingdom_," I. 127, where he maintains that chapter 39 of Magna
Carta “affirms the right of trial by jury.”
Footnote 851:
Pollock and Maitland, I. 152, n., and Pike, House of Lords, 169.
-----
(_a_) The criminal petty jury cannot here be intended, since it had not
been invented in 1215:[852] to introduce trial by jury into John’s great
Charter is an unpardonable anachronism. (_b_) The barons would have
repudiated trial by jury if they had known it. They desired (here as in
chapter 21) that all questions affecting them should be “judged” before
fellow barons, and in the normal case, by the _duellum_. They would have
scorned to submit to the verdict of “twelve good men” of their own
locality. Their inferiors must have no voice in determining their guilt
or innocence. This sentiment was shared by the tenants of mesne lords.
(_c_) _Judgment_ and _verdict_ were essentially different. The function
of a petty jury (after it _had_ been invented) was to answer the
specific question put to it. The insurgent barons demanded more than
this: they asked a decision on the whole case.[853] The “peers” who
judged presided over the proceedings from beginning to end, appointing
the proof they deemed appropriate, sitting as umpires while its
fulfilment was essayed, and giving a final decision as to success or
failure therein.
-----
Footnote 852:
Cf. _supra_, p. 161.
Footnote 853:
Cf. Pike, _Ibid._, 169. “From the time when trial by jury first
commenced, either in civil or in criminal cases, to this present end
of the nineteenth century, no jury ever did or could give judgment on
any matter whatsoever.” The difference between the ancient and modern
conceptions of judgment, however, must not be lost sight of.
-----
(2) _Magna Carta and arbitrary commitment._ A second erroneous theory
has still to be discussed. The Petition of Right, as already stated,
treats Magna Carta as prohibiting the Crown from making arrests without
a warrant showing the cause of detention; and the earlier commentators
further interpreted it as making all acts of arbitrary imprisonment by
the Crown absolutely illegal, although strong reasons of state might
urge the detention of dangerous individuals. Hallam, for example,
declares that from the era "of King John’s Charter, it must have been a
clear principle of our institutions that no man can be detained in
prison without trial." Yet every king of England from the days of John
Lackland to those of Charles Stewart, claimed and exercised the
prerogative of summarily committing to gaol any man suspected of evil
designs against the Crown or Commonwealth. Strong kings used this power
freely to remove those whom they wished to silence. Frequently no cause
of arrest was mentioned, no explanation given, except the words "by the
king’s command." During all these centuries the legality of such
procedure was never challenged as contrary to Magna Carta, or on any
other ground. Even the famous protest of the judges of Queen Elizabeth,
asserting the existence of legal limits to the royal prerogative of
commitment, proves the lawfulness of the general practice to which it
makes comparatively insignificant exceptions. Such rights inherent in
the Crown, dangerous undoubtedly to liberty but yet perfectly legal,
were never seriously challenged until the struggle between Charles I.
and his parliaments had fairly begun. Then it was that old precedents
were eagerly sought out and put to new uses. Then only was it suggested,
for the first time, that Magna Carta was intended to prohibit arbitrary
commitments at the command of the Crown. Such was the argument
deliberately put forth in 1627 during the famous proceedings known
sometimes as Darnell’s case and sometimes as the case of the Five
Knights. Heath, the Attorney-General, easily repelled this contention:
“the law hath ever allowed this latitude to the king, or his privy
council, which are his representative body, in extraordinary cases to
restrain the persons of such freemen as for reasons of state they find
necessary for a time, without for this present expressing the causes
thereof.”[854] The parliamentary leaders, however, too grimly in earnest
to be deterred by logic, were far from abandoning their error because
Heath had unanswerably exposed it. They embodied it, on the contrary, in
the Petition of Right, which condemned the Crown’s practice of
imprisoning political offenders “without any cause showed” (or only _per
speciale mandatum regis_) as contrary to the tenor of Magna Carta—an
effective contention as a political expedient, but essentially unsound
in law.
-----
Footnote 854:
See _State Trials_, III., p. 1, and S. R. Gardiner, _History_, VI.
214.
-----
CHAPTER FORTY.
Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.
To no one will we sell, to no one will we refuse or delay, right or
justice.
This chapter, like the preceding one with which it is so closely
connected, has had much read into it by commentators which would have
astonished its original framers. The application of modern standards to
ancient practice has resulted in a complete misapprehension. The sums
customarily received by John, as by his predecessors, at every stage of
legal procedure, were not necessarily the wages of deliberate injustice.
This is evident from several considerations. Thus litigants paid fines
for redress against the Crown itself; in disputes between two private
parties, the sum offered by the highest bidder was by no means always
accepted; sometimes justice was rendered to one litigant gratis in spite
of a heavy offer by the other. Many payments, then, were not bribes to
an unjust judge, but merely expedients for hastening the law’s delays,
or to ensure a fair hearing for a good plea, or to obtain some unusual
but not unfair expedient, such as a peculiarly potent writ or the
hearing of a case in the exchequer, which would ordinarily have been
tried elsewhere. If the royal courts charged higher rates for justice
than the feudal courts, they supplied a better article. When Henry of
Anjou threw open the doors of his court to all freemen who chose to pay
for writs, he found a ready market. These writs differed widely in
price. Some from an early date were issued whenever applied for (writs
_de cursu_) and at a fixed sum: others were granted only as marks of
favour or after a bargain had been struck. Specially quick or cogent
procedure had to be specially paid for. It would thus appear that the
system of John was not open to the unqualified and violent condemnation
which it usually receives. Hallam’s language is too sweeping when he
says: “A law which enacts that justice shall neither be sold, denied,
nor delayed, stamps with infamy that government under which it had
become necessary.”[855] It was John’s abuse of the system, not the
system itself, which called for condemnation; and the worst that could
be said against it, according to medieval standards, was that it lent
itself too readily to abuse.
-----
Footnote 855:
_Middle Ages_, II. 451.
-----
If the barons really desired that John should continue to dispense royal
justice in the new fields occupied by his father, but should do so
without pecuniary return, their demands were unfair and even absurd; but
probably they only wished a strict adherence to the customary rules and
charges which they had come to expect as normal in connection with royal
tribunals. The system, indeed, has many objectionable features to modern
critics; but in the twentieth century, as in the thirteenth, justice
cannot be had for nothing; and the would-be litigant with a good claim
but a slender purse will be well advised to acquiesce in a small loss
rather than incur the certainty of losing as much again in
extra-judicial outlays, and the risk of losing many times more in the
judicial expenses of a protracted litigation. The lack of free justice
is a reproach which the men of to-day cannot with good grace fling at
the administration of John.
As the evils complained of are often exaggerated, so also are the
reforms promised by this chapter of Magna Carta. John is usually held to
have agreed to the abolition of payments of every sort for judicial
writs and other fees of court. Justice, unlike other valuable
commodities, was, it would appear, to be obtained for nothing—an ideal
never yet attained in any civilized community. A body of highly trained
clerks could not be kept by the king to issue writs gratuitously to all
who asked them, and a staff of judges, “who knew the law and meant to
keep it,” to determine pleas which would bring in no return to the
Crown.
The intention of those who framed this chapter was probably to secure a
more moderate and reasonable measure of reform. Abuses of the system
were to be redressed.[856] Unfortunately it was not easy to define
abuses—to determine where legitimate payments stopped and illegitimate
ones began. Prohibitive prices ought not to be charged for writs _de
cursu_; but was the Crown to have no right to issue writs of grace on
its own terms? Plaintiffs who had any special reason for haste
frequently paid to have their suits heard quickly: was that an
abuse?[857]
-----
Footnote 856:
Cf. Madox, I. 455, "By _nulli vendemus_ were excluded the excessively
high fines: by _nulli negabimus_, the stopping of suits or
proceedings, and the denial of writs: by _nulli differemus_ such
delays as were before wont to be occasioned by the counterfines of
defendants (who sometimes would outbid the plaintiffs) or by the
prince’s will."
Footnote 857:
Fines for this purpose were frequent under Henry II. and his sons.
Madox, I. 447, cites many examples. Thus in 1166 Ralph Fitz Simon paid
two marks “for speeding his right” (_pro recto suo festinando_). The
practice continued under Henry III. in spite of Magna Carta. Bracton’s
_Note Book_ cites a hard case (No. 743): Henry III. was claiming
prerogative wardship where it was illegal under c. 37 of Magna Carta
(_q. v._). The court might have delayed hearing the mesne lord’s plea
until the wardship was ended; but he paid five marks _pro festinando
judicio suo_. The fine was said to be given “willingly” (_sponte_).
Did the use of this word make possible an evasion of c. 40 of the
Charter?
-----
Whatever the intention may have been, the practical effect of the clause
was _not_ to secure the abolition of the sale of writs and justice. The
practice under Henry III. has been described by our highest authority.
"Apparently there were some writs which could be had for nothing; for
others a mark or a half-mark would be charged, while, at least during
Henry’s early years, there were others which were only to be had at high
prices. We may find creditors promising the king a quarter or a third of
the debts that they hope to recover. Some distinction seems to have been
taken between necessaries and luxuries. A royal writ was a necessary for
one who was claiming freehold; it was a luxury for the creditor exacting
a debt, for the local courts were open to him and he could proceed there
without writ. Elaborate glosses overlaid the king’s promise that he
would sell justice to none, for a line between the price of justice and
those mere court fees, which are demanded even in our own day, is not
easily drawn. That the poor should have their writs for nothing, was an
accepted maxim."[858]
Probably the practice before and after 1215 showed few material
differences. Some of the more glaring abuses of the system were checked:
that was all.[859] Parliament in subsequent reigns had frequently to
petition against the sale of justice in breach of Magna Carta.[860] The
king usually returned a politic answer, but was careful never to
surrender his right to exact large sums for writs of grace. Richard II.,
for example, replied: “Our lord the king does not intend to divest
himself of so great an advantage, which has been continually in use in
Chancery as well before as after the making of the said charter, in the
time of all his noble progenitors who have been kings of England.”[861]
-----
Footnote 858:
Pollock and Maitland, I. 174. Cf. _Ibid._, II. 204, and authorities
cited.
Footnote 859:
Madox, I. 455, says: “And this clause in the great Charters seems to
have had its effect. For ... the fines which were paid for writs and
process of law were more moderate after the making of those great
Charters than they used to be before.”
Footnote 860:
Instances are collected by Sir T. D. Hardy in _Rot. de oblatis_, p.
xxi. See also Stubbs, _Const. Hist._, II. 636-7.
Footnote 861:
_Rot. Parl._, III. 116, cited Stubbs, _Const. Hist._, II. 637.
-----
It is thus evident that Magna Carta did not put down the practice of
charging heavy fees for writs. Yet this chapter, although so frequently
misunderstood and exaggerated, is still of considerable importance. It
marks, for one thing, a stage in the process by which the king’s courts
gradually outdistanced all rivals. In certain provinces, at least, royal
justice was left in undisputed possession. In these the grievance was
not that there was too much royal justice, but that it was sometimes
delayed or denied. Here, then, even in the moment of John’s most bitter
humiliation we find evidence of the triumph of the policy of the Crown
inaugurated half a century earlier by his far-seeing father.
It is not to such considerations as these, however, that this chapter
owes the prominence usually given to it in legal treatises; but rather
to the fact that it has been broadly interpreted as a universal
guarantee of impartial justice to high and low; and because when so
interpreted it has become in the hands of patriots in many ages a
powerful weapon in the cause of constitutional freedom. Viewing it in
this light, Coke throws aside his crabbed learning and concludes with
what is rather a rhapsody than a lawyer’s commentary: “as the gold-finer
will not out of the dust, threads, or shreds of gold, let pass the least
crumb, in respect of the excellency of the metal; so ought not the
learned reader to pass any syllable of this law, in respect of the
excellency of the matter.”[862]
-----
Footnote 862:
_Second Institute_, 56.
-----
CHAPTER FORTY-ONE.
Omnes mercatores habeant salvum et securum exire de Anglia, et venire in
Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad
emendum et vendendum, sine omnibus malis toltis, per antiquas et rectas
consuetudines, preterquam in tempore gwerre, et si sint de terra contra
nos gwerrina; et si tales inveniantur in terra nostra in principio
gwerre, attachientur sine dampno corporum et rerum, donec sciatur a
nobis vel capitali justiciario nostro quomodo mercatores terre nostre
tractentur, qui tunc invenientur in terra contra nos gwerrina; et si
nostri salvi sint ibi, alii salvi sint in terra nostra.
All merchants shall have safe and secure exit from England, and entry
to England, with the right to tarry there and to move about as well by
land as by water, for buying and selling by the ancient and right
customs, quit from all evil tolls, except (in time of war) such
merchants as are of the land at war with us. And if such are found in
our land at the beginning of the war, they shall be detained, without
injury to their bodies or goods, until information be received by us,
or by our chief justiciar, how the merchants of our land found in the
land at war with us are treated; and if our men are safe there, the
others shall be safe in our land.
Merchants and merchandise, like all other classes and interests, had
suffered severely from John’s greed, unrestrained by regard for the
rights of others. The control of commerce was specially reserved for the
king’s personal supervision. No law or traditional usage trammelled him
in his dealings with foreign merchants, who were dependent on royal
favour, not on the law of the land, for the privilege of trading and
even for personal safety. No alien merchant could enter England or leave
it, nor take up his abode in any town, nor move from place to place, nor
buy and sell, without paying heavy tolls to the king. This royal
prerogative proved a profitable one.[863]
-----
Footnote 863:
So far all authorities are agreed, though a difference of opinion
exists as to the source of these prerogatives. Thus (_a_) Stephen
Dowell, _History of Taxation and Taxes in England_, I. 75, considers
that the duties on imports and exports were in their origin of the
nature of voluntary dues paid by foreign merchants in return for
freedom of trade and royal protection; (_b_) Hubert Hall, _Customs
Revenue of England_, I. 58-62, considers the prerogative as merely one
aspect of purveyance, that is of the right of the king to requisition
what he required for his own needs and those of his household. Many
such “theories” are anachronisms. The prerogative was founded on
fact—on the brute force at the Crown’s disposal. Kings took what they
could, and left future ages to invent theories to justify or explain
their actions.
-----
John increased the number and amount of such exactions, to the detriment
alike of foreign traders and of their customers. Magna Carta, therefore,
sought to restrain this branch of prerogative, forbidding him to exact
excessive tolls for removing obstacles of his own creating. This
benefited the merchants by securing to them certain rights, which may
perhaps be analysed into three: safe-conduct, that is protection of
their persons and goods from violence; liberty to buy and sell in time
of peace; and a confirmation of the ancient and just rates of “customs,”
with the abolition of John’s “evil tolls” or additional exactions.
So far, the general purport of the enactment is undoubted; but
discussions have arisen on several important points, such as the
nationality of the traders in whose favour it was conceived; the exact
nature of the “evil tolls” abolished; the motives for the rules
enforced; and the relations between denizens and foreign traders.
I. _Magna Carta favours alien Merchants._ The better opinion would seem
to be that this chapter applied primarily to foreign traders from
friendly states. Attempts have been made, indeed, to argue otherwise,
namely, that denizens were to benefit equally with strangers, Magna
Carta holding the balance even between them. Such was the purport of a
learned discourse delivered in the House of Commons by William Hakewill,
Barrister of Lincoln’s Inn, in 1610, during the debate on John Bate’s
case.[864] His main argument was that certain statutes of the reign of
Edward III.,[865] in seeking to confirm and expand the provisions of
Magna Carta, did clearly embrace denizens as well as aliens. Yet the
framers of an Act in the fourteenth century may well have misunderstood
the tenor of John’s Charter, or may have deliberately altered it.
-----
Footnote 864:
See _State Trials_, II. 407-475, and especially 455-6.
Footnote 865:
_E.g._ 2 Edward III. c. 9 and 14 Edward III., stat. 1, c. 21.
-----
Intrinsic and extrinsic evidences combine to create a strong presumption
that Magna Carta referred chiefly, perhaps exclusively, to merchants of
foreign lands.[866] Denizens trading in England did not require those
“safe conducts” which form the chief concession in this chapter; and
their rights of buying and selling were already protected in another
way; for independent traders were unknown, all merchants being banded
into guilds in the various towns whose privileges (“_omnes libertates et
liberas consuetudines_”) were guaranteed to them in a previous part of
the great Charter.[867] It was the alien merchants who required special
protection, since they had, strictly speaking, no status in the eye of
the law, and held their privileges from the king, who, moving along the
line of least resistance, frequently preferred to overtax them rather
than his own subjects.[868] The Crown might vouchsafe the protection
they needed either willingly or grudgingly, and under conditions to be
altered at discretion, but never unless well paid for. The policy of
Henry II. and his sons was to favour merchant strangers, but to exact in
return the highest dues possible, restrained only by an enlightened
self-interest which stopped short at the point where trade would
languish by becoming unprofitable. The Exchequer Rolls and the Patent
Rolls afford many illustrations of how individual traders or families
made private bargains with the Crown for trading privileges. In 1181
Henry obtained two falcons for granting leave to export corn to Norway.
In 1197, a certain Hugo Oisel owed 400 marks for licence to trade in
England and in Richard’s other lands in time of war as well as of
peace.[869]
-----
Footnote 866:
Two-thirds of the chapter is occupied in explaining that merchant
strangers of unfriendly States are not to benefit from it. Mr.
Hakewill was aware of this, but sought to evade the natural inference
by subtleties which are not convincing.
Footnote 867:
See _supra_, under c. 13.
Footnote 868:
For the legal position of aliens, see Pollock and Maitland, I.
441-450.
Footnote 869:
See _Pipe Rolls_, 27 Henry II. and 8 Richard I., cited Madox, I.
467-8.
-----
At the commencement of John’s reign, traders resident in England seem
collectively to have obtained confirmation of their privileges. That
king issued Letters Patent to the Mayor of London, to the magistrates of
many smaller towns, and to the sheriffs of the southern counties of
England, directing them, in terms closely resembling those of Magna
Carta, to allow to all merchants of whatsoever land safe coming and
going, with their wares.[870]
-----
Footnote 870:
See _Rot. Chart._, 60 (5th April, 1200).
-----
These arrangements were merely temporary. John did not intend that any
such general grant should prevent him from exacting further payments
from individuals as occasion offered. For example, Nicolas the Dane
promised a hawk each time he entered England, that he might come and go
and trade “free of all customs which pertain to the king.”[871] Such
customary dues, at the usual rates, were not abolished by the Charter,
but only the arbitrary additional payments for which there was no
warrant.
-----