Magna Carta: A Commentary on the Great Charter of King John / With an Historical Introduction

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.

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]

(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.

(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]

(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]

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]

CHAPTER THIRTY-EIGHT.

Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc inductis.

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.

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]

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]

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]

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]

(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.

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]

(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]

(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]

(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.

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.

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.

(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.

(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.

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]

(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]

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]

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.

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.

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.

(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]

(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]

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]

(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]

(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.

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]

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]

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.

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]

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.

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.