Front Page Titles (by Subject) CHAPTER THIRTY–EIGHT. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
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CHAPTER THIRTY–EIGHT. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc inductis.
No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law,” without credible witnesses brought for this purpose.
The exact nature of the abuse here condemned has been much discussed by commentators. Bailiffs (the word is probably used here in its widest sense1 ) were wont to abuse their authority: henceforth they shall put no man to his “lex” on their own initiative. The word lex, in its technical sense, 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.2 In the present chapter it seems to have this technical meaning of a judicial “proof” or “trial” of any sort:3 henceforward no bailiff should have power “simplici loquela sua”4 to put anyone to a “lex” of any kind. Authorities differ as to the exact nature of the irregularities which this clause was meant to suppress.
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.1
(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).2
If the chapter is read in a broad sense as prohibiting abuses of a generic kind, it is possible that more than one of its modern exponents may be substantially correct, in spite of apparent contradictions. (1) One theory would read the clause as forbidding magistrates to show undue favour to defendants of certain classes. Crown officials, under John, 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.”1 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.2
(2) On the other hand, the clause is sometimes made to prohibit undue favour shown to demandants in civil suits 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 1700.3
(3) A closely allied explanation treats the clause not as forbidding undue favour towards one party to an action, but rather as preventing bailiffs from favouring themselves. When it suited them, the King’s officials were wont to dispense with the wholesome rule that demanded “suit” or its equivalent before a plea could be entertained. This practice was by no means confined to England, and has been discussed by Dr. Brunner.4
(4) It is perhaps only another aspect of the same explanation to regard the clause as directed mainly against unfair treatment of accused men in criminal prosecutions. No one ought to be put to his “lex,” in the sense of “ordeal,” on mere grounds of vague suspicion or on the unsupported statement of a royal bailiff. After 1166, at least, the voice of an accusing jury of neighbours was a necessary preliminary, under normal circumstances, before any one could be put to the ordeal in England. Magna Carta confirmed this salutary rule: no bailiff should put any one to the ordeal except after formal indictment, due evidence of which was presented at the diet of proof.1
Nature of the grievance.
As already suggested, it seems not unlikely that two or more of these theories may require to be combined in order to furnish a complete explanation of the clause under discussion. Magna Carta may well have condemned alike the practice of compelling a man to defend a civil action unsupported by suit, and of sending him to the dreaded ordeal without indictment by his neighbours.
To the criminal aspect of the matter, the Assize of Clarendon (1166) seems to supply the key. Article 4 of that ordinance prescribes the procedure for trying robbers, thieves, and murderers: “the sheriff shall bring them before the justices; and with them they shall bring two law–worthy 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;1 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 own report of the indictment “sine testibus fidelibus ad hoc inductis” was not sufficient. The “county” and the “hundred” which had heard the prisoner accused, must send representatives to bear record of the facts.2
The ordeal was a solemn affair, and every precaution must be taken against its abuse. Sheriffs or other royal bailiffs must be present, as well as members of the accusing jury. Lords of feudal courts, claiming this franchise, required apparently royal warrant for its exercise.3 Practice, however, was loose: the King’s justices would seem to have had a right to put suspects to the ordeal ex officio without the intervention of the accusing jury:4 sheriffs and others, with the Crown’s approval or connivance, exercised a similar privilege. In condemning these practices, Magna Carta would appear to have been, to some extent, modifying previous usage.5 It was not enough thereafter that indictment should precede ordeal; members of the presenting jury, who had made the accusation at the first diet, must 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 formal report must be corroborated by the testimony of representative jurors.
The Charter of 1216 repeated this provision without alteration. In 1217 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 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 to substitute for ordeal. 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 Charter of 1217, then, made it clear that the provisions applied in 1215 to ordeal were to be extended to other tests. The “ad legem” of John’s Charter became in the new version “ad legem manifestam nec ad juramentum.” A “manifest law” might well mean either ordeal or any other actual physical test such as “battle,”1 while “juramentum” points to the sworn testimony of the jury, which was slowly taking the place of the discredited ordeal.2
[1 ]Cf. supra, c. 24. It possibly includes sheriffs and their officers. The same men, apparently, were described as King’s serjeants and sheriff’s serjeants; one 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 word may also include the stewards who presided in manorial courts. If so, the unqualified “ballivus” of this passage should, perhaps, be contrasted with the “noster ballivus” of cc. 28 and 30. Coke, Second Institute, 44, following the doubtful Mirror of Justices, extends it to all King’s justices and ministers.
[2 ]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 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–Normanica, 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. For its various meanings see also Harcourt, Steward, 232.
[3 ]In c. 55 “lex” would seem to bear a meaning more akin to the broader conception of “law” in modern jurisprudence; while in c. 39 its denotation is subject of controversy.
[4 ]Cf. the phrases “per simplex verbum suum” (Fordwick) and “per vocem suam simplicem” (Hereford) in Bateson, Borough Customs, I. 181. Cf. ibid., II. xxxii.
[1 ]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.
[2 ]Cf. supra, p. 83. 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.
[1 ]See Rigg’s Sel. Pleas Jewish Exch., xii., and cf. supra, c. 10.
[2 ]Rigg, ibid., 89, where the case is cited.
[3 ]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 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.”
[4 ]See his Schwurgerichte, 199–200. Cf. ibid., 178 and 409–74. For a similar practice in Galloway, see G. Neilson on “Surdit de Sergaunt,” Scot. Antiq., XI. 155. The Leges Quatuor Burgorum would seem to guard against an evil of an opposite kind when (c. 76) they forbid the provost or bedells of a town (prepositus vel precones) to “bring witnesses to a claim against anyone,” but direct that the defendant shall acquit himself per legem. This peculiar law would seem to be entirely unknown to previous commentators on this difficult passage of Magna Carta.
[1 ]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.
[1 ]See Article 12 where “eat ad aquam” is contrasted with “non habeat legem” of Article 13 (Select Charters, 144).
[2 ]The “ad portandum recordationem comitatus et hundredi” of the ordinance is exactly opposed to the “simplex loquela sua” of the Charter.
[3 ]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). 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.).
[4 ]See Miss Bateson, Eng. Hist. Rev., XVII. 712.
[5 ]Miss Bateson (Borough Customs, II. xxxi.) speaks of the “right of accusation ‘ex officio’ which belonged to the King’s officers until Magna Carta, Art. 38, deprived them of it.”
[1 ]See Thayer, Evidence, 37 n., for a case of 1291, where “ad legem manifestam” can only mean trial by combat. Cf. legem apparentem purgandus est in Glanvill, XIV. ff. 112–114.
[2 ]Westminster I. (c. 12) described men refusing to put themselves on a jury’s verdict, “come ceaus qui refusent la commune ley de la terre.”