(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.

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]

(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.

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:

(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.

(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.

CHAPTER FORTY.

Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.

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.

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]

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]

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]