The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Second Edition.
• From Preface to First Edition.
• Historical Introduction
• Part I.: Events Leading to Magna Carta.
• Part II.: Feudal Grievances and Magna Carta.
• Part III.: Magna Carta: Its Form and Contents.
• Part IV.: Historical Sequel to Magna Carta.
• Part V.: Magna Carta: Original Versions, Printed Editions and Commentaries.
• Text, Translation, and Commentary
• Preamble.1
• Chapter One.
• Chapter Two.
• Chapter Three.
• Chapter Four.
• Chapter Five.
• Chapter Six.
• Chapter Seven.
• Chapter Eight.
• Chapter Nine.
• Chapter Ten.
• Chapter Eleven.
• Chapter Twelve.
• Chapter Thirteen.
• Chapter Fourteen.
• Chapter Fifteen.
• Chapter Sixteen.
• Chapter Seventeen.
• Chapter Eighteen.
• Chapter Nineteen.
• Chapter Twenty.
• Chapter Twenty–one.
• Chapter Twenty–two.
• Chapter Twenty–three.
• Chapter Twenty–four.
• Chapter Twenty–five.
• Chapter Twenty–six.
• Chapter Twenty–seven.
• Chapter Twenty–eight.
• Chapter Twenty–nine.
• Chapter Thirty.
• Chapter Thirty–one.
• Chapter Thirty–two.
• Chapter Thirty–three.
• Chapter Thirty–four.
• Chapter Thirty–five.
• Chapter Thirty–six.
• Chapter Thirty–seven.
• Chapter Thirty–eight.
• Chapter Thirty–nine.
• Chapter Forty.
• Chapter Forty–one.
• Chapter Forty–two.
• Chapter Forty–three.
• Chapter Forty–four.
• Chapter Forty–five.
• Chapter Forty–six.
• Chapter Forty–seven.
• Chapter Forty–eight.
• Chapter Forty–nine.
• Chapter Fifty.
• Chapter Fifty–one.
• Chapter Fifty–two.
• Chapter Fifty–three.
• Chapter Fifty–four.
• Chapter Fifty–five.
• Chapter Fifty–six.
• Chapter Fifty–seven.
• Chapter Fifty–eight.
• Chapter Fifty–nine.
• Chapter Sixty.
• Chapter Sixty–one.
• Chapter Sixty–two.
• Chapter Sixty–three.
• Appendix. Documents Relative To, Or Illustrative Of, Magna Carta.
• I.: The Charter of Liberties of Henry I.1 (1100.)
• II.: The Second Or Oxford Charter of Stephen.1 (1136.)
• III.: Charter of Henry II.1 (circa 1154.)
• IV.: The So–called “unknown Charter of Liberties” of John.2 (circa 1214–1215.)
• V.: The Articles of the Barons.1 (1215.)
• VI.: Writs Supplementary of John’s Great Charter.
• VII.: The Great Charter of Henry III.2 (third Reissue, 11th February, 1225.)
• VIII.: Carta De Foresta.1 (6 November, 1217.)

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 terrae.

No freeman shall be taken or [and] imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or [and] by the law of the land.3

This chapter occupies a prominent place in law–books, and is of considerable importance, although its value has sometimes been exaggerated.1

I.

Its Main Object.

It has been usual to read it as a guarantee of trial by jury to all Englishmen; as absolutely prohibiting arbitrary commitment; and as solemnly undertaking to dispense to all and sundry an equal justice, full, free, and speedy.2 The traditional interpretation has thus made it, in the widest terms, a promise of law and liberty and good government to every one.3 A careful analysis of the clause, read in connection with its historical genesis, suggests the need for modification of this view. It was in accord with the practical genius of the Charter that it should here direct its energies, not to the enunciation of vague platitudes, but to the reform of a specific abuse. Its object was to prohibit John from resorting to what is sometimes whimsically known in Scotland as “Jeddart justice.”4 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 cases John proceeded, or threatened to proceed, by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.1 Complaint was made of arrests and imprisonments suffered “without judgment” (absque judicio); and these are the very words of the “unknown charter”—“Concedit Rex Johannes quod non capiet homines absque judicio.”2 The Articles of the Barons and Magna Carta expand this phrase. Absque judicio becomes nisi per legale judicium parium suorum vel per legem terrae, thus guarding, not merely against 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.”3 The need for “a judgment of peers” was recognized at an early date in England.4 It was not originally a class privilege of the aristocracy, but a right shared by all grades of free–holders; whatever their rank, they could not be tried by their inferiors.1 In this respect English custom did not differ from the procedure prescribed by feudal usage on the Continent of Europe.2 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 suitors of the Court Baron of the manor. In either case, judgments were given per pares curiae. John, resorting wholesale to practices used sparingly in earlier reigns, had set these rules at defiance. His political and personal enemies were exiled, or deprived of their estates, by the judgment of a tribunal composed entirely of Crown nominees. Magna Carta promised a return to the ancient practice.

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) Jews of England and Normandy enjoyed under John’s Charter of 10th April, 1201, the right to be judged by men of their own race; for them a judicium parium was a judgment of Jews.3 (b) A foreign merchant, by later statutes, obtained the right to a jury of the “half tongue” (de medietate linguae), composed partly of aliens of his own country.4 (c) The peers of a Welshman seem, in some disputes with the Crown, to have been men drawn from the marches: such at least is the plausible interpretation of the phrase “inmarchia per judicium parium suorum,” occurring in later chapters of Magna Carta, and granting to the Welsh redress of wrongful disseisins.1 (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.2 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.3

(3)

Per legem terrae.

No freeman could be punished except “in accordance with the law of the land.” The precise meaning of these often–quoted words ought, perhaps, still to be regarded as an open question. Two meanings are possible: one, narrow and technical; the other, of a loose and popular bearing. The more technical has already been explained.4 Thus interpreted, 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.5

Much weight, however, must be allowed to the arguments of those who contend for interpreting “lex terrae” more in accordance with the vague and somewhat meaningless “law of the land” of popular speech at the present day. The phrase, they argue, was not confined to methods of procedure, but referred to the entire tone and substance of the law.1 Advocates of both theories can point to other parts of Magna Carta where “lex” is used in the sense they claim for it in the present passage; for its purport was, in 1215, ambiguous. In chapters 18, 36, and 38, it refers primarily to procedure, whereas chapters 9, 45, 52, 56, and 59 suggest a broader interpretation.

Magna Carta is undoubtedly a loosely drawn document, and it is always possible that both meanings were in the minds of the framers. If so, the 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 emphasis 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 “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.2

The Act of 1352, for example, after reciting this provision of Magna Carta, insisted on the “indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done.” Coke,1 founding apparently on these fourteenth–century statutes, makes “per legem terrae” 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 Right2 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.

Anachronisms such as these must be avoided. Whatever may have been the exact grievances that bulked most largely in the barons’ minds in 1215, their main contention was obvious. John was no longer to take the law into his own hands: the deliberate judgment of a competent court of law must precede any punitive measures to be taken by the King against freemen of his realm.

(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.3 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 chapters 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 measures 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.1 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.2

(1)

Capiatur vel imprisonetur.

These words are followed in the text by a string of other verbs, each of which is introduced by “aut” (“aut disseisiatur,” etc.). The contrast between “vel” and “aut” strengthens the suggestion that “vel” is used in this chapter conjunctively. The meaning would then be that no one could be arrested and imprisoned (that is, no one could be detained as a prisoner) without trial. If “vel,” on the other hand, were to be read disjunctively while the two words it connects were literally interpreted and enforced, orderly government would be at an end.1 Arrest normally precedes judgment, although judgment must precede permanent imprisonment following on arrest.

(2)

Aut disseisiatur.

Avarice was a frequent motive of John’s oppressions: the machinery of justice was 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 a grievance to which the barons attached supreme importance is shown in many ways: by the care taken in the 25th Article of the Barons and in chapter 52 of the Charter to provide procedure for restoring “disseised”2 estates, and by the terms of writs issued by John after the treaty at Runnymede, for the immediate restoration of “lands, castles, and franchises from which we have caused any one to be disseised injuste et sine judicio.”3

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.”4 (a) Liberum tenementum. “Free” tenements were freeholds as opposed to the villenagium that passed into the modern copyhold. None of the possessions thus protected were more highly valued by the barons than their feudal strongholds.5 Castles claimed by great lords as their own property are mentioned in many writs of the period, while chapter 52 of Magna Carta gives them a prominent place among the “disseisins” to be restored. (b) “Libertates” covered feudal jurisdictions, immunities, and privileges of various sorts, of too intangible a nature to be appropriately described as “holdings.” (c) Consuetudines had two meanings, a broad general one and a narrower financial one.1 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; and Coke, in treating this passage as a text on which to preach the doctrine that monopolies have always been illegal in England, aims 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.”2 In this error he has been assiduously followed.3

(3)

Aut utlagetur, aut exuletur, aut aliquo modo destruatur.

The declaration of outlawry, which could only be made in the county court, was a necessary preliminary to the forfeiture of the outlaw’s lands and goods. The expedient recommended itself peculiarly to John’s genius; it was his policy to terrify those with whom he had quarrelled, until they fled the country; to summon them three times before the county court, knowing 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 of Robert Fitz Walter and Eustace de Vesci, in the autumn of 1212.4 The outlawed man 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.1 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 destroyed.”2

(4)

“Nec super eum ibimus, nec super eum mittemus.”

These words have been frequently misinterpreted. Read in the light of historical incidents of the immediately preceding years, they leave no room for ambiguity. Their object was to prevent John from substituting violence for legal process: 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 Magna Carta, of a warrant for every legal principle of his own day, misled generations of commentators. He maintained that John promised to refrain from raising, in his own courts, actions in which he was personally interested. In elaborating this error, he drew a distinction between the court of King’s Bench, otherwise known as coram rege, because the King was in theory present, and other courts to which he had “sent” a writ delegating authority. Ibimus, he seems to think, applied in the former case; mittemus in the latter. To quote his 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.”3 Coke is in error; it was the use of brute force, not merely one particular form of legal process, which John in these words renounced.

III.

What Classes 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 villeins as free for purposes of this chapter and of chapter 1, while rejecting them for the purposes of chapter 20.1 Their right to the status of freeman has already been disallowed, and any possible ambiguity as to the present chapter is removed by the 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.”2 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 the property of villeins and even villenagium belonging to freemen.3 It was made plain beyond reasonable doubt that no villein should have lot or part in rights hailed by generations of commentators as the national heritage of all Englishmen.4

IV.

Reactionary Side of these Provisions.

To insist 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 King’s professional judges, 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. Yet, a danger lurked in these provisions; the clause was a reactionary one, tending to restore feudal privileges and feudal usage, inimical alike to the Crown and to the growth of popular liberties.1 John promised that feudal justice should be dispensed in his feudal court; 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.2

V.

Genesis of this Chapter.

The interpretation here given is emphasized by comparison 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 that protected himself and his allies from the very evils which John subsequently committed against his own barons. Longchamp conceded in Richard’s name that bishops and abbots, earls, barons, “vavassors” and free–tenants, should not be disseised of lands and chattels at the will of the King’s justices or ministers, but only by judgment of the King’s court according to the lawful customs and assizes, or by the King’s command.3

Now, the main subject of the arbitration, ending in this treaty, 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 had attempted to take vengeance upon his opponents in a manner they are not likely to have forgotten, two years later at Runnymede. John, resenting 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, without even a trial and sentence by one of his Benches, he set out with an army to punish them. He had gone as far north as Northampton when, on 28th August, 1213, Stephen Langton persuaded him to defer forcible proceedings until he had obtained a legal sentence in a formal Curia.1 That John again threatened recourse to violent methods may be inferred from the 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.”2 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 ordinary freemen would be found among the freeholders in the Court Baron.1

VI.

Later History of “Judgment of Peers.”

The claim made by the barons at Runnymede was re–asserted on subsequent occasions. The phrase “judicium parium” which, probably in consequence of its use in Magna Carta, sprang into “sudden and extraordinary prominence”2 was destined to have a long and distinguished career. Mr. Harcourt3 thinks that “it was the obscurity of the chapter when reissued, the fact that it might mean so many things, which supplied the congenial soil wherein the principle of trial of peers was able to expand and grow to maturity,” when “the Charter as a whole became the Bible of the constitution.”

(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. William de Braose in 1208 had declared himself ready to satisfy John “secundum judicium curiae suae et baronum parium meorum.”4

(2)

The royal contention.

The Crown, on the other hand, while not openly infringing the Charter, tried to narrow its scope. Judges appointed 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 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,5 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 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.1 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.2 Neither the royal view nor the baronial view entirely prevailed. A distinction, however, must be drawn between criminal and civil pleas.

(3)

Criminal pleas.

Offenders of the rank of barons partially made good their claim to a trial by equals; while ordinary freemen 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.1 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 explains why “privilege of peers” has never extended to misdemeanours, since these involved no forfeiture to the Crown.

The judicium parium was secured to earls and barons in later reigns 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.2 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.3 The subject has been further complicated by the growth of the modern conception of a “peerage,” embracing various grades of “nobles.” In essentials, however, the rights of a baron accused of crime have remained unchanged from the days of Henry III. to our own. The privilege of “trial by peers” 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. Under these limitations the privilege of a peer 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.4

(b) For tenants of a mesne lord 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 knight or landed gentleman: 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 to make good a claim to judicium parium in civil cases.1 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 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 here are on a level. No “peer of the realm” has, for many centuries, asked to plead before a special court of peers in any ordinary non–criminal litigation, whether affecting real or personal estate.

VII.

Erroneous Interpretations.

The tendency to vagueness and exaggeration has already been discussed. Two mistakes of unusual persistence require 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.2 The mistake probably owes its origin to a tendency of later generations 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; and nothing in Magna Carta (unless it were this clause) to correspond with trial by jury: therefore they identified the two.1 Mr. Reeves, Dr. Gneist, and other writers long ago exposed this error, but the most conclusive refutations are those given by Prof. Maitland and Mr. Pike. The arguments of these writers are of a somewhat technical nature;2 but their importance is far–reaching. They seem to be mainly three:—

(a) The criminal petty jury cannot be intended in this chapter, since it had not been invented in 1215:3 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 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 a specific question. The insurgent barons demanded more than this: they asked a decision on the whole case.4 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. Hallam, for example, declares that “It cannot be too frequently repeated that no power of arbitrary detention has ever been known to our constitution since the charter obtained at Runnymede.”1 Yet every King of England from John Lackland to Charles Stewart claimed and exercised the prerogative of summarily committing to gaol any man suspected of evil designs against Crown or Commonwealth. 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 exceptions. Such rights inherent in the Crown were never seriously challenged until the struggle between Charles I. and his parliaments had fairly begun. Then only was it suggested 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 proceedings known sometimes as Darnell’s case and sometimes as the case of the Five Knights. Health, 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.”2 The parliamentary leaders, however, too grimly in earnest to be deterred by logic, were far from abandoning their error because Heath had 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” (other than per speciale mandatumregis), as contrary to the tenor of Magna Carta—an effective contention as a political expedient, but unsound in law.

[3 ]The usual English rendering has here been followed: Mr. Harcourt (Steward, 219) was possibly right in holding that “interpretation under the guise of translation is in this case an inevitable snare.” This does not, however, absolve the commentator from explaining the text. The Articles of the Barons (29) add “vi” (“nec rex eat vel mittat super eum vi” suggesting the fuller contemporary “per vim et arma”). This shows the inadequacy of the translation contained in the Statutes at Large, “nor will we pass upon him nor condemn him.” The Statutes of the Realm, I. 117, suggest “deal with him” as an alternative. Coke, as explained infra, originated the error which thus connected “going” and “sending” with legal process.

[1 ]For a valuable discussion of alternative interpretations, see Adams, Origin, 256–274; also Pike, House of Lords, c. X. Mr. Harcourt’s learned discussions (Steward, cc. VII. and VIII.) are worthy of careful study, though they are more useful in suggesting difficulties than in finding solutions.

[2 ]See, e.g. Coke, Second Institute, 55.

[3 ]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, Eng. Const., 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.”

[4 ]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 ]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.”

[2 ]See Appendix.

[3 ]Mr. Harcourt (Steward, 218 ff.) has much to say on this phrase: for him a man’s “peers” need not be his equals in rank (p. 220); while “judgment” is a vague word embracing widely opposed procedures: e.g. (p. 248), “In common parlance of the time a resolution of the King in Council to make war on a subject was a judicium.” He further instances, as examples of legal processes accepted in 1215 as equivalent to “judgment,” the procedure for Crown debts under c. 9; outlawry under c. 42; the petty assizes under c. 19; and the special procedure in cc. 52, 56 and 59 (see ibid., 220–3). Mr. Harcourt’s conclusions are not clearly formulated, and some of them appear to be not well founded.

[4 ]The earliest known reference occurs in the Leges Henrici (c. 31): Unusquisque per pares suos judicandus est et ejusdem provinciae.

[1 ]Cf. Pollock and Maitland, I. 152. As there was no “peerage” in England (cf. supra, p. 186) 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. Freeholders holding of the same mesne lord were “peers of a tenure.”

[2 ]See Stubbs, Const. Hist., I. 578 n., for foreign examples of judicium parium.

[3 ]“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. 227 n. Harcourt, however (ibid., 228), translates pares Judei as “justices or custodes of the Jews.”

[4 ]See Carta Mercatoria, c. 8; 27 Edward III. stat. 2, c. 8; and 28 Edward III. c. 13; also Thayer, Evidence, p. 94.

[1 ]See infra, cc. 56, 57, and 58. Under c. 59 the barons of England were called peers of the King of Scots.

[2 ]See Placitorum Abbrevatio, p. 201, cited Pollock and Maitland, I. 393 n.

[3 ]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.”

[4 ]See supra, p. 84, and cc. 18, 36, and 38.

[5 ]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. 342. 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.”

[1 ]Mr. Harcourt (Steward, 220 ff.) has vehemently, and Prof. Adams (Origin, 266 ff.) judicially and moderately, maintained this view. Mr. Adams is influenced by his failure to discover any instance of “per legem terrae” in the technical sense, but “per legem Angliae” occurs in Sel. Civil Pleas (Selden Society), No. 104, where the reference is to ordeal of water.

[2 ]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.

[1 ]Second Institute, p. 46.

[2 ]3 Charles I. c. 1.

[3 ]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 a different 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. See also, on opposite sides, Harcourt, Steward, 219 ff., and Adams, Origin, 262.

[1 ]See, e.g. Pike, House of Lords, 217, citing Littleton in Year Book, Easter, 10 Edward IV., No. 17, fo. 6.

[2 ]This chapter applied only to abuses of criminal process: cf. c. 21 for amercements and civil process.

[1 ]The wording of the 29th Article of the Barons, if not merely due to careless draftsmanship, seems, however, against this conjunctive interpretation. Cf. Adams, Origin, 262.

[2 ]For this word cf. supra, c. 18.

[3 ]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. Pollock and Maitland, I. 393, countenance a broader interpretation.

[4 ]De libero tenemento suo vel libertatibus vel liberis consuetudinibus suis.

[5 ]Cf. supra, p. 151.

[1 ]Cf. supra, p. 246.

[2 ]Second Institute, p. 47.

[3 ]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.

[4 ]See supra, p. 25.

[1 ]See Pipe Rolls, 7 Richard I., cited by Madox, I. 201.

[2 ]E.g. Coke, Sec. Inst., 48. For the early history of outlawry and exile, see Liebermann, Friedlosigkeit (Brunner–Festschrift), and Gesetze, II. 413; A. Réville, Abjuratio regni, Revue Hist., vol. 50 (1892). Harcourt (Steward, 221) characterises “destruatur” as a “colloquial expression” covering even amercements, if of excessive amounts.

[3 ]See Second Institute, p. 46. John Reeves, History of English Law, I. 249 (third ed.), while condemning Coke, gives an even more strained interpretation of his own. Lingard, History of England, III. c. 1, deserves praise as the first commentator who took the correct view.

[1 ]Second Institute, pp. 4, 27, and 45.

[2 ]Simon de Montfort, 17 n. Cf. Blackstone, Great Charter, xxxvii., “the more ample provision against unlawful disseisins.”

[3 ]Cf. Pollock and Maitland, I. 340 n.

[4 ]Cf. supra, p. 118. 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.

[1 ]Mr. G. H. Blakesley, Law Quarterly Review, V. 125, perhaps goes too far: “It may reasonably be suspected that cap. 39 also was directed merely to maintain the lord’s court against Crown encroachments.”

[2 ]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 barons among the judges of the “Benches,” and did not necessarily involve a full commune concilium. 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.

[3 ]See R. Hoveden, III. 136.

[1 ]Cf. supra, p. 29.

[2 ]The writ is dated 10th May, 1215, and appears in New Rymer, I. 128.

[1 ]Magna Carta also omits “per vim et arma.”

[2 ]Cf. Harcourt, ibid., 235.

[3 ]Ibid., 236.

[4 ]M. Paris, II. 524.

[5 ]Ibid., III. 247–8.

[1 ]M. Paris, Chron. Mag., III. 251–2.

[2 ]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 an intimate knowledge of the law he administered as justiciar in 1233. In the matter of amercements, at least, barons of exchequer acted as peers of earls and barons.

[1 ]Pike, House of Lords, 173. See also Bracton, f. 119; Pollock and Maitland, I. 393.

[2 ]“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.

[3 ]Pike, ibid., 174–9.

[4 ]The privilege was extended to peeresses by 20 Henry VI. c. 9.

[1 ]The Earl of Chester claimed it in 1236–7, and the Earl of Gloucester (as a lord marcher) in 1281. See Pollock and Maitland, I. 393 n. See, however, Harcourt, Steward, 291.

[2 ]Cf. supra, pp. 134–5.

[1 ]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; Taswell–Langmead, Const. Hist., 110; Goldwin Smith, “The United Kingdom,” I. 127.

[2 ]Pollock and Maitland, I. 152 n., and Pike, House of Lords, 169.

[3 ]Cf. supra, p. 134.

[4 ]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.

[1 ]Const. Hist., I. 234.

[2 ]See State Trials, III. p. 1, and S. R. Gardiner, History, VI. 214.