- Magna Carta Celebration, 1915. General Committee. Nominated In 1914.
- Introduction By H. E. Malden, M.A.
- Professor Wm. S. Mckechnie, Magna Carta (1215–1915). an Address Delivered On Its Seventh Centenary, to the Royal Historical Society and the Magna Carta Celebration Committee.
- Professor G. B. Adams, Innocent Iii and the Great Charter.
- J. H. Round, “barons” and “knights” In the Great Charter.
- Sir P. Vinogradoff, Magna Carta, C. 39. Nullus Liber Homo, Etc.
- Charles Howard Mcilwain, Magna Carta and Common Law.
- H. D. Hazeltine, the Influence of Magna Carta On American Constitutional Development.
- Prof. Rafael Altamira, Magna Carta and Spanish MediÆval Jurisprudence.
- Hilary Jenkinson, Financial Records of the Reign of King John.
MAGNA CARTA, C. 39.
NULLUS LIBER HOMO, ETC.
By a curious coincidence the year 1915 has been marked, among other striking events, by a revival of the controversy between arbitrary power and the rule of law which, in the midst of heterogeneous particulars, formed the substance of the struggle of 1215. The discussion in the course of the elaboration of the Defence of the Realm Act and its amendment has led to extreme pronouncements. On the one hand, Lord Parmoor appealed to the principle of safeguarding the freedom and right of individuals as expressed in the Great Charter and guaranteed by trial by jury Lord Newton, on the other hand, took this occasion to pronounce in favour of a discretionary procedure untrammelled by lawyers, and declared that sensible persons in this country were not in the least worried about Magna Carta at this moment.
We need not follow the details of this curious passage of arms and of the correspondence called forth by it, and may confine ourselves to the remark that if Lord Parmoor was not strictly exact in tracing the trial by jury to Magna Carta, Lord Newton seems to have somewhat rashly discarded the inheritance of legality of which English citizens have been so proud for ages.
Turning to the historical problem fringed by these modern polemics one may say that the predominant strain in the analysis of the Great Charter by modern scholars may be characterized as a sceptical reaction against the great constitutional claims made for Magna Carta since the days of Coke. The note is sounded in a terse page of the “History of English Law,” and Messrs. McKechnie, J. H. Round, E. Jenks, L. O. Pike, and others have followed on the same lines with great effect. They have taken pains to prove that the barons who forced the Charter on John Lackland were guided by class interests and aimed at reaction and anarchy rather than at legality and progress. The feudal framework of their scheme is sufficiently clear and has been described very fully by G. B. Adams. There can be no doubt also that Coke, Blackstone, and Thomson were guilty of many anachronisms in their attempts to trace legal conceptions of a later age into these feudal beginnings, and that even Stubbs rather exaggerated the sentimental and institutional importance of the principles embodied in Magna Carta. And yet there is room for doubt whether the general effect of the modern criticism to which the text of the Great Charter was subjected has been altogether conducive to the proper treatment of the subject. Granted that the Charter has been prompted by the selfish considerations of the barons, and bears in every line the impress of their special aims, it remains to be explained why it obtained such a hold on national life, why it was re-enacted and remanipulated in the course of several generations, why it became the watchword of English legalism, why it was accepted and developed by those very royal judges against whose encroachments its provisions were to a large extent directed. We cannot wonder Magna Carta was partially eclipsed by the arbitrary rule of the Tudors, but right through the Middle Ages and in the seventeenth century again it was considered as the principal enactment of English law, and this fundamental fact deserves as much consideration from historians as the feudal environment of the Runnymede agreement. Clause 39 which I have selected for particular examination stands, as it were, in the centre of the Magna Carta controversy, and is well adapted for an illustration of its characteristic features.
So much learning and ingenuity has been expended on the interpretation of this text that I can dismiss in a few words a number of more or less important points which seem to me to have been definitely settled by scholars. It would be superfluous to refute Coke’s view as to the meaning of “nec ibimus nec mittemus super eum”. Nor is it necessary to dwell at length on the meaning of outlawry, disseisin, or destruction. It is quite clear that the famous “Vel” between “Judicium Parium” and “Legem Terrae” was employed in a conjunctive and not in a disjunctive sense. But several points remain worth discussion even when we have taken careful stock of the results achieved by the interpreters.
The “nullus liber homo” itself deserves a few words. The meaning attached to the term by the baronial party at Runnymede restricted the scope of the term to that of “libere tenens,” and it was further emphasized and developed in the Confirmation of 1217 and in later issues. Such an interpretation, far from being self-evident in the beginning of the thirteenth century, cuts right through the difficulties arising out of two firmly established views; namely, against the frequent combinations of free birth with unfree tenure, of which the simplest case is presented by the freemen holding in villainage, and against the doctrine that all men worthy of were and wite, if not providing the security of free tenement, were to join the frank-pledge (“plegium liberale”) and had to attend the public court twice a year at the sheriff’s view. This arrangement was merely the expression of the fact that in criminal and police matters the villain was on the level of the free. As the narrow conception of freedom aimed at in the barons’ charter did not square with important doctrines well established in early Common Law, the interpretation given to “Nullus liber homo” by the judges was bound to take a different course from that intended by the originators of the document. It has been argued that the barons did not intend to bestow any of the guarantees of clause 39 on people who did not belong to their order, that is who were not tenants-in-chief. If such was their intention, it was not adequately expressed, because the class of “liberi homines,” even in the strictest legal sense, embraced all the free tenants, the vavassors, socmen, and franklins as well as the barons. The fact that clause 34 applied only to barons holding courts of their own did not militate in the slightest degree against such an interpretation. Clause 34 merely said that when free men had courts they were not to be deprived of their privileges; free men who had no courts were not concerned in clause 34 at all. But as soon as the line was drawn so low as to include all those who could prove their freedom, say by the action “de libertate probanda,” it became impossible to insist even on the restricted meaning of free tenants. This being so, possible cases of infringement of personal liberty, of illegal imprisonment, come very much to the fore, and the differentiation between the protection of the person (“corpus” ), and of property and privileges (“tenementum, consuetudines”) is carried out in the later issues of the Charter. Again, when this personal acceptation of the term “liber homo” has obtained a firm footing, the transition from the feudal notion of liberty to the civic one becomes a matter of substitution. The fall of the stone into the lake calls forth automatically wider and wider circles on the surface. That this is no mere speculation of ours may be proved by textual evidence.
In a statute of 1350 (28 Edw. III, c. 3) issued after the Black Death it was expressly provided that “Nul homme de quel estate ou condicion il soit” should be imprisoned or disseised in infringement of the Great Charter, and this elaborate formula was evidently meant to remove all doubts as to the general application of the rule. In an earlier instance, namely, in a statute of 1331 (5 Edw. III, c. 9), the term used is simply “homme,” but it stands in the place of “liber homo,” and the omission of the qualifying epithet is not likely to have been accidental: the wording of such clauses was the result of very careful consideration, and the change in terminology has to be taken into account at least as much in this case as the insertion of the words about free tenements and franchises in the earlier confirmations of the Charter.
It may be noticed in this connection that the defence of a person refusing to release a prisoner on bail in an action “de homine replegiando” was not that the prisoner was a villain, but that the prisoner was the villain of the lord who had imprisoned him.
I should like now to examine a second point—the expression “Per Legem Terrae” which forms the conclusion of our clause. I entirely agree with Prof. C. B. Adams that the only sense in which these words can be construed is that of an assertion of legality. “Lex terrae” means the law of the land. It is amplified in some of the confirmations by the expression “legale judicium,” and both in conjunction would point to legality in procedure as well as in substance. Of course “Lex” is used sometimes in the technical meaning of compurgation, but such a technical acceptance would square badly with the accompanying expression “per judicium parium”. What is more important, the general meaning of “Law of the Land” is conclusively established by two texts directly connected with the history of the Runnymede transaction—the Patent of 10 May, 1215, by which King John wished to conciliate the moderate among his enemies, and the papal letter in which Innocent III exhorted the barons to cease their opposition to the King. No reasonable canon of interpretation could warrant a separate treatment of “legem regni nostri et judicium parium” of John’s Patent or the “per pares vestros secundum consuetudines et leges regni” of Innocent’s Bull from the “per judicium parium suorum vel per legem terrae” of Magna Carta. The terms of the three documents are identical in substance and significant in their technical differentiation under two heads. At the same time the slight variations of phraseology enable us to supplement to some extent the barrenness of the central statement in Magna Carta, clause 39. “Regnum nostrum” appears in the letter of 10 May as a welcome gloss to “terrae,” but the reference to “leges et consuetudines regni” is even more explicit: it shows conclusively that a contemporary potentate, thoroughly conversant with the subject in dispute and fully able to express his thoughts in a definite manner, understood the “lex terrae” in the broad and ordinary sense of the “laws and customs of the realm”. It would be inadvisable for us to dissent from this authoritative interpretation. The struggle was waged to secure trial in properly constituted courts of justice and in accordance with established law. The latter requirement would apply equally to substantive rules as far as they existed, and to procedure; it was in fact a declaration in favour of legality all round. Here again, as in the case of the free man, the formulation was elastic enough to stand carrying over from the class justice of feudal lords to the common law of the growing Commonwealth. The mention of a properly constituted tribunal, however, discloses in a curious way a certain opposition between the views of the barons and those of the Royalists, as expressed by King and Pope. While the baronial documents merely speak of judgment by peers, the royal and the papal pronouncements state that such a judgment should be given in the King’s Court (in “curia mea”). The omission of these words in the text of the Charter is hardly accidental. One of the objects of this curtailment may have been the wish to extend the application of the clause relating to peers to the courts of the barons themselves on the principle indicated by clause 60. But there is yet another connection in which the barons had an interest in avoiding a direct mention of the Curia Regis. They wanted to make clear that they would not recognize as legal judgments not delivered by the peers of the accused. In this they followed the feudal doctrine (cf. Conrad’s II edict, and King David’s formula ) which had been emphatically asserted, e.g. in 1208 by William of Braose. Now as against such an unadulterated feudal doctrine stood a view according to which the administration of justice was the outcome of royal power and not of feudal contract. From this point of view Pierre des Roches in 1233 contested the very existence of peers in England. But there was also an intermediate position favoured by the Judges of the King’s Court: according to this compromise the Curia was not only a body with attributions delegated to it by the King, but also a meeting of the King’s vassals, and it exercised its functions in virtue of the collective power of the assessors. In this sense the justices derived their office not only from the sovereign, but also from the circle of peers. Indeed both in France and in England the Court of Peers was regarded as one section of the High Court of Parliament which in itself was the enlarged Curia Regis. One more step was required to reach the conclusion that the professional judges of the Court might be taken to serve as a substitute for the cumbersome process of judgment by the full Court. This step was not only actually made both in England and in France, but it was justified in both cases on similar grounds. I have in view the introductory sentence of Bracton’s treatise on the connection of the single judge with the full Court of Magnates and the chapter of Beaumanoir’s “Coutumes de Beauvaisis” on the juris-diction of the “bailli”. In both cases stress is laid on the subordinate character of a decision given by a single judge. His action is important for practical reasons because it would be useless to overburden the full Court with trials which develop on ordinary lines and can be easily settled by reference to well-known rules. In all doubtful cases, however, the single judge ought to revert to the fountainhead of his authority, that is to the Curia. The expressions used by Bracton are exceedingly characteristic: it is as a member of the aristocracy and not as a learned delegate of royal justice that the judge is made to appear. By the Magna Curia may be meant either a sitting of the full Curia Regis or the High Court of Parliament, a body of rather uncertain composition in the thirteenth century. A characteristic complement to the jurisdiction of Parliament in the centre appears in the shape of the commissions in circuit composed of local magnates by the side of ordinary judges. For our purpose it is important to note that in the main the requirement as to justice administered by one’s peers gradually resolved itself in the hands of the justices who founded the Common Law into a potential appeal to a High Royal Court.
It cannot be said that this process of transformation took place without opposition and misunderstandings, or that it followed a perfectly straight course. It is well known how the higher baronage obtained a strict recognition of its position as a group of peers of the Realm. A corollary to that purely feudal view appears in the claim of privileged exemption from trying the causes of lower people.
It is also interesting to note that sometimes attempts were made to establish further gradations within the peerage, e.g. in the case of Gilbert of Clare, Earl of Gloucester, who wanted to be tried by lord marchers like himself.
The process affecting the free population below the exalted ranks of the peerage is more interesting. Here also we find an occasional attempt to establish group divisions. A Yorkshire knight seeks and obtains from an itinerant justice to be tried by fellow-knights instead of a jury of freemen selected without distinction of rank. The justiciar in this case complies with the request of the accused, and gets rid in this way of one of the latter’s many objections. But, as we know, such an exclusive point of view did not prevail as to the composition of juries, both grand and petty. The rule established by practice required merely that members of the jury should be empanelled from the country (“patria”) or the neighbourhood (“visnetum”), that they should be free and lawful men of some social standing, and that their several appointments could not be challenged on personal grounds. Anyway, even when knights are selected for the recognition, it is evident that they do not belong to a circle of peers of the accused in any other sense but that of being his equals in rank. They do not constitute in themselves an ordinary Court of Peers to which the accused man would eventually be a suitor. They are members of the “patria,” in the case just quoted from the county of Yorkshire, and act in a representative capacity. One more characteristic feature has to be noted—the knights in question are selected to satisfy the requirement as to “judicum parium,” and at the same time they are a jury, a petty jury according to the technical terminology of later days. Submission to the verdict on the part of the accused is enforced by means of the threat of applying the regime of hunger and thirst which formed such an important element in the “peine forte et dure”. Altogether the report of the trial looks like a standard case selected for the purpose of illustrating all sorts of dodges, countermoves, and exceptions which might be resorted to by an accused person.
There can be no doubt that in this way a criminal petty jury was taking the place of a batch of peers, and though we have no similar means of exact identification in other instances, the mere reading of Crown trials in such collections as that of the Select Pleas of the Crown, the Crown Pleas of the County of Gloucester, and the Notebook of Bracton, affords ample corroborative evidence of the treatment of criminal cases on those lines. All cases of felony in these volumes are tried and decided in Royal Courts either by appeals or by recognitions of juries. The latter mode becomes more and more common, and, except in the case of a great man, depends not on a judgment by the feudal peers of the accused, but on a recognition by men of the same group, free and lawful men of the “country”. The question arises, is the treatment of the recognition as a judgment the result of mere confusion and looseness of terminology, or has it been brought about by the deliberate overriding of the Magna Carta provision by royal justices? Neither the one nor the other solution is likely to commend itself to modern students.
In order to understand the process of substitution by which the jury was put in the place of the circle of feudal peers, we have to attend, as it seems to me, not only to the existence and rapid increase of small freemen who had no standing as vassals, but also to the popular conception of a public court in thirteenth century England. The opposition between judgment and verdict developed only gradually in consequence of the growth of the jury system, and although, as has been convincingly shown by H. Brunner, the trial by jury was in truth the outcome of inquests held by professional judges under the authority of the King, yet in the popular mind there lingered the notion that jurors were delegates of a body of doomsmen. This is assumed in the Yorkshire case under discussion, but it is also indicated by the frequent substitution of an award by jurymen for the doom or judgment of a popular court. One of the earliest extant records of a post—conquestual plea—the account of a suit in which Bishop Odo of Bayeux ultimately got the best of it against his opponent contains the notice that sworn representatives of a county were substituted for the full court of the county. From a case inserted in “Bracton’s Note-book” we can gather that the right to make dooms, that is to pronounce judgments, was considered to be inherent in the status of a member of a county court, though its proper exercise depended on the holding of a regular session of the court. It could certainly not be denied that a suitor of the county acting as an assessor of its courts was able to exercise judicial functions by the side of the sheriff or of the royal justice who presided in the court. In the same way a juror, representing the “patria,” was deemed to contribute in a certain sense to a judgment, although in another sense the judgment as a final decision of the case appertained to the royal justice.
This manner of treating the question led to a rather ambiguous phraseology, but it helps to explain how the rule as to “judicium parium” was applied by the royal courts in the case of freemen not belonging to the highest social rank of the peerage.
It remains for me to consider the constitutional widening of the prohibition of arbitrary imprisonment and “destruction”. It has been currently held to be the germ of the Habeas Corpus doctrine, and there is a good deal of truth in this view although it certainly does not comprise the whole truth. The narrow class basis on which the rule was originally drawn up need not be insisted on—it is the initial assumption from which further analysis has to start. What I should like to emphasize is the fact that right through the Middle Ages the rule was recognized by the judges and became one of the fundamental principles, not of the law of peerage but of the Common Law. It was reasserted again and again by various Parliaments with slight variations in form which showed that it was not treated as an empty formula kept up by meaningless tradition. In John de la Lee’s case it formed the basis of the defendant’s claim. In the quashing of Thomas of Lancaster’s sentence, and in the proceedings as to Maltravers’ pardon, royal officers, and even the peers of Parliament were charged with flagrant breaches of the rule of law, safeguarding the right of free Englishmen to a fair trial. It must be conceded, at the same time, that there was a powerful doctrine which ran counter to a consistent application of clause 39 of Magna Carta, namely, the exceptional power assigned to the King in virtue of his prerogative as sovereign ruler of the Commonwealth.... Thomas of Lancaster was condemned to death without trial because Edward II had personally recorded the notorious fact of his treason. The personal command of the King is often recognized by judges to outweigh purely legal considerations. In the procedure of replevin as applied to accused persons, it was taken for granted that an arbitrary arrest might be justified by the personal order of the King. This point may be illustrated, e.g. by the following extract from a writ “de homine replegiando” of Edward I’s time: The Sheriff of Cambridgeshire is ordered to replevin a certain Richard and others, who had been arrested by the bailiffs of the Bishop of Ely, “nisi capti essent per speciale praeceptum nostrum vel capitalis justiciarii nostri” (Public Record Office, Chancery Files, Writs and Returns, 18 June, 2 Edw. I).
The passage applies, of course, to preliminary arrest and not to punishment, but it was well understood already in mediæval times that such preliminary arrests might create the greatest hardship, and ought to be guarded against.
How is one to reconcile these conflicting tendencies? They cannot be reconciled by logical construction: they represent, as it were, the two poles of English political development in the Middle Ages. The historical struggle between John and the barons, Henry III and Monfort, Edward II and Lancaster, Edward III and the Good Parliament, had its counterpart in conflicting legal theories as to the extent of the royal prerogative and the application of legal rules. But as one might say of the English Justinian, Edward I, that he was eminent as a powerful ruler and at the same time as a most efficient promoter of legal order, so it may be said of the judges who shaped the Common Law, that they were fully alive to the necessity of a rule of law, and regarded the modifying interference of the prerogative as an exceptional agency which ought not to affect the general administration of justice. The principle of legality as formulated in Magna Carta is one of the elements of England’s constitutional growth, and it has certainly exerted an influence on the destinies of the nation which is not lessened by the fact that the roots of the Charter were embedded in the soil of feudalism.
PER IUDICIUM PARIUM VEL PER LEGEM TERRAE.
Professor F. M. Powicke.
In his recent treatise upon the origin of the English Constitution Prof. G. B. Adams has pushed to its logical conclusion what may be called the baronial tendency in current interpretations of the thirty-ninth clause of the Great Charter. The barons, he suggests, were thinking almost entirely, if not entirely, of themselves. They were demanding that they should not be imprisoned, disseised, or outlawed except after a trial in the King’s Court “by the judgment of their peers and by the whole body of law and custom which such judgments are intended to interpret and apply”. By the King’s Court the barons meant the magnates of the realm, not the judges alone; by the law of the land they meant no particular form of procedure, certainly not the processes of indictment and presentment. As I understand this view, the barons desired to place themselves beyond the scope of the judicial system elaborated in the reign of Henry II and Richard I. They were thinking of such trials as those of William of Saint-Calais and St. Thomas of Canterbury.
This view is clear and intelligible. It is a good starting-point. Without traversing the whole field of speculation fully described in Mr. McKechnie’s commentary, I wish to put over against Prof. Adams’ view the old fourteenth-century interpretation of the clause and see what can be said for it. There appears to be no doubt that, in the minds of politicians of Edward III’s reign, the clause comprehended all freemen, and the law of the land covered all the due processes of law, even indictment and the appeal; whether there was a judgment of peers or not depended on the circumstances. We can all agree that the barons were thinking mainly of their own safety and were not thinking directly of trial by jury, but if we accept the Edwardian view, we cannot hold that the Charter is simply the programme of a pack of feudal reactionaries. According to Prof. Adams the barons were seeking to undermine—so far as it concerned them—the whole fabric of the new judicial system, “including the jury, the itinerant justice court, and the permanent central Court of Common Pleas”. According to the fourteenth-century politicians, the barons frankly recognized the value of the judicial system, new and old, and in this clause were maintaining the rights of the subject against an arbitrary prerogative.
The inquiry involves two separate but related questions. In the first place, assuming that the clause was intended to apply to the barons alone, was it only concerned with a trial by peers in the King’s Court? In the next place, ought we to limit the phrase “liber homo” to the baron? If the barons were not thinking of the ordinary freeman, they may none the less have been thinking of more than one judicial method. If they did include the ordinary freeman in their demand, they would naturally allow a variety of procedure.
“Nullus liber homo capiatur uel imprisonetur aut dissaisiatur aut utlagetur aut exuletur aut aliquo modo destruetur nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum uel per legem terrae.”
The barons and their followers were in this clause included among the “liberi homines”. Indeed, John’s letters of 10 May, 1215, show that the baronial desire for protection was perhaps the original motive of the clause. These letters, addressed a month before the date of the Charter, read as follows:—
“Sciatis me concessisse baronibus nostris qui contra nos sunt quod nec eos nec homines suos capiemus nec dissaisiemus nec super eos per uim uel per arma ibimus nisi per legem regni nostri uel per judicium parium suorum in curia mea donec consideracio facta fuerit per iii/or quos eligemus ex parte nostra et per iii/or quos eligent ex parte sua et dominum Papam qui superior erit super eos.”
It does not appear, however, that the King is promising a trial by peers in his court as a remedy in all cases. Even though by the barons’ men only their more important followers were intended, John is not likely to have given an undertaking that all charges against them would be brought before the supreme authority. Nor do the words “per legem regni uel per judicium parium,” taken in their natural sense, suggest that the law of the realm and a judgment of peers are indissolubly connected or, in this case, identical. Such a serious conclusion must be based upon a much stronger argument than the probable meaning of “uel”. The word “uel” is used about sixty times in Magna Carta, but never, so far as I can see, in an explanatory or a cumulative sense. However vague or weak its disjunctive quality may be, it cannot suddenly be construed as “et etiam” or “id est”. As the author of the “Dialogus de Scaccario” points out, even “et” was frequently used at that time in a disjunctive sense. Unless the meaning of the terms themselves suggests a much closer connection between the ideas of the “lex regni” and the “judicium parium,” the use of “uel” can only suggest that they are not rigid alternatives. One would expect the King to mean that, without stating exactly the scope of the law of the realm, he would observe it: it might include a judgment of peers or it might not; if the circumstances were peculiar—owing, for example, to the importance of the offender or the difficulty of the case—the judgment would not be arbitrary. The defendants’ peers could be or would be called upon to see that justice was done.
The practice of the time and the general meaning of the words used strengthen the probability of this interpretation.
In many cases a judgment of peers in the King’s Court was doubtless the normal method of procedure. A great baron’s default of service, for example, might result in disseisin by such a judgment. But a judgment of peers was not the only legal way. During the sharp quarrel in 1205 between King John and William the Marshal, the Marshal offered to defend his fidelity against the most valiant man in the kingdom. “By God’s teeth,” swore the King, “that is nothing. I want the judgment of my barons.” The Marshal was ready to stand this test also, but the barons shrank from giving judgment; and when John of Bassing-bourn, one of the King’s bachelors, ventured to speak, the Count of Aumâle silenced him. “It is not for you or me to judge a knight of the Marshal’s quality. There is no man here bold enough to put his default to the proof of the sword (‘si hardi qui vers lui mostrast le forfeit’).” The duel is distinguished in this scene from the “judicium parium”; the barons regard the duel as the more appropriate test, while the King prefers the “judicium”.
Did the “lex regni” mean the old form of procedure, such as the feudal trial by combat? Procedure was certainly part of the law of the realm; and some scholars have wished to limit the meaning of the phrases “lex regni,” “lex terrae,” to this form of trial, excluding any wider sense, e.g. process, and the methods of appeal and indictment which might precede the actual proof. I can see no reason for any such limitation in the thirty-ninth clause of the Great Charter. The “lex terrae,” which is substituted for John’s “lex regni,” was certainly used of the ancient forms of proof, but in Norman and in Anglo-Norman law, it was more frequently used in the sense of the “general body of law operating through familiar processes”. The word “terra” was used sometimes to denote a holding as in the phrase “terrae Normannorum,” but also to denote a district subject to public law, whether the local “patria” or the “regnum” as a whole. Its substitution for “regnum” in the clause under discussion shows that “lex terrae” was here intended to apply to the customs of England, and probably to cover also any varieties of local customs, such as those recognized by the justices in Kent and Herefordshire. And it may be noticed that the phrase “lex terrae” was commonly used of actions and procedure generally; for example, of the possessory assizes, a writ of right, and the proceedings in outlawry.
The phrase “judgment of peers,” on the other hand, had a more limited and precise meaning. It implied a particular kind of court, a court of doomsmen. The judgment must be delivered on behalf of a company of men who were of the same race or nationality or status as that of the accused or party. It involved the equitable principle which underlay the recognition and the accusing jury; indeed, the processes of inquiry and judgment met in the jury of arbitrators, of which we have an example in John’s letters of May, 1215; but the judgment of peers was not the same as, and did not include, the recognition and the presentment. The Jews in England claimed the judgment of their peers, but they objected to a mixed jury of recognitors. A solemn trial in the Curia Regis in the presence of the magnates of the realm, the ordinary session of the shire court, perhaps also the trial of possessory actions before justices enforced by local knights involved a judgment by peers. The proceedings before the justices on eyre did not, I think, involve this kind of judgment. But the “lex terrae” would be enforced in all alike.
A contemporary change in Norman procedure illustrates very clearly the distinction between the “lex terrae” and the “judicium parium”. After the conquest of Normandy, King Philip Augustus took the trial of ducal pleas in the bailliwicks out of the hands of justices and gave it to local men. The custumal says: “assisie vero tenentur per barones et legales homines. Par per parem iudicari debet.” The procedure of the court and the law enforced by the court were not affected by the change; the “lex terrae” was observed both before and after; but henceforward a trial according to law would in Normandy involve a “judicium parium”. In England this was not necessarily the case.
The phrase “lex terrae,” then, though not excluding a judgment of peers, suggests so many varieties of law and procedure that a demand for a judgment of peers in every possible case could hardly be expressed in words so mild and general as “per judicium parium uel per legem terrae”. I have pointed out that even a great baron accused of default did not regard the judgment of his peers as the most natural or obvious way of meeting the charge. Moreover, other clauses of the Charter indicate that the barons used more explicit language when they wished to emphasize a demand for a “judicium parium”. Disputes about land on the Welsh border were to be settled “per judicium parium secundum legem,” in accordance with the law of England, Wales, or the March, as the case might be. The conclusion is forced upon my mind at least that the thirty-ninth clause was intended to lay stress not so much on any particular form of trial as on the necessity for protection against the arbitrary acts of imprisonment, disseisin, and outlawry in which King John had indulged.
If we turn to some leading cases of the next twenty years—a period during which the Great Charter was solemnly renewed, fresh in men’s minds, and acknowledged as authoritative—this view is confirmed. There is the same insistence upon protection, the same concern for the observance of law, and also the same hesitation or indifference about the actual constitution of the court. The King acknowledges that he has disregarded the forms of law, it may be in his own court or it may be in a shire court. Redress is given by the magnates of the realm, if the case is of great importance, or by a judge in the royal following. Maitland was fond of reminding us that the distinctions between the royal courts were but vaguely defined in the thirteenth century; and with similar indefiniteness we find “coram rege” cases decided now by the assembled magnates, and now by a single justice.
One such case concerned a great Yorkshire house. The desirable manor of Cottingham, which had been much improved first by William, then by Nicholas de Stuteville, was claimed by Nicholas’s co-heiresses on their father’s death in 1233; but it had been for some weeks in the possession of his nephew Eustace, a man of some importance in the affairs of the shire. This was clearly a case for an assize of mort d’ancestor, and for a writ of right. For some reason the King intervened, dispossessed Eustace, installed the heiresses and their husbands, and finally (“per consilium magnatum de curia sua”) took the manor into his own hands. Eustace had offered large sums for a judgment, and in 1234, at Wallingford, on the octave of Trinity (25 June), his claim was heard by William Ralegh. The King was present, and admitted that he had acted on his own initiative in disseising Eustace, without due process of law — “sine summonitione et sine judicio”. Eustace was ready again with his offer of £1000. The fine was accepted, and judgment was given that he should be reinstated pending a settlement by assize of mort d’ancestor and writ of right, “secundum legem terrae”.
Eustace de Stuteville seems to have come to an arrangement with Hugh Wake, one of his rivals, and was clearly doubtful of his claim. But the King had disseised him without a judgment, and the decision at Wallingford points to the legal process by assize and writ, to a possessory and proprietary action, as the means of “summons and judgment”. A thousand pounds was a large sum. Yet a royal admission of error in the royal court was perhaps worth the money. The case appears on a roll of “pleas which followed the King before W. de Ralegh”. Eustace was apparently restored, not by “judicium parium,” but by one of the King’s judges. The other claimants were disseised by an administrative act of their peers; but in Eustace’s history there is no mention of such a judgment. Stress is laid, not on it, but on summons, judgment, assize of mort d’ancestor, writ of right, the law of the land.
A more famous trial of the same year illustrates the proceedings “per legem terrae” in the case of outlawry. The decrees of outlawry declared by King Henry against the great Hubert de Burgh and also against Gilbert Basset and other companions of Richard, Earl Marshal, were annulled by a judgment of their peers, declared by the mouth of the same William Ralegh who decided the Cottingham case. The King, says the record, desired to show justice, and on 23 May, 1234, called together all the magnates then present in his court at Gloucester, including Edmund, Archbishop of Canterbury, bishops, earls, and others. This judgment ended the political crisis during which the Earl Marshal, before his violent death in Ireland, and Gilbert Basset had made the claim to be tried by their peers, and had been met by Peter des Roches with the well-known retort “There are no peers in England”. One would expect, therefore, a deliverance by the court at Gloucester on the question as to whether a baron could be outlawed without a judgment of his peers. But the judgment contains nothing of the kind. It reverses the decree of outlawry in Gilbert Basset’s case, (1) because the act which provoked the King (the rescue, namely, of Hubert de Burgh from sanctuary at Devizes) was done in the course of war (“occasione guerrae”) and was not, therefore, an ordinary criminal offence; (2) because the proceedings of outlawry in the shire court of Wiltshire were irregular; and only in the third place (3) because Gilbert and his friends had been prepared to stand their trial in the King’s Court. The decree against Hubert de Burgh was annulled on the ground that escape from prison was not in itself punishable by outlawry. In both cases, stress is laid on the proceedings in the shire court, that is to say, on the “lex terrae”. The magnates clearly imply that these barons, distinguished though they were, could have been lawfully outlawed if they had fled “per appellum racionabile, aut per sectam Domini Regis ubi fama patriae accusaret”. Bracton, as Maitland points out, probably had this judgment in mind when he stated (f. 127) that outlawry at the King’s suit or command is a nullity unless an inquest has been taken by the justices and the fugitive has been found guilty. Elsewhere Maitland describes the judgment in Hubert’s case as an “important step in constitutional history,” since it made indictment or appeal a necessary preliminary to outlawry. But was not the court simply enforcing the principle laid down in the Great Charter? Was it not interpreting the principle to mean that the “lex terrae” in a case of outlawry was the process in the shire court, involving either the indictment or the appeal?
I have suggested that the barons did not claim a judgment of peers as an essential and universal remedy even for themselves. Their words do not imply this claim, and actual practice did not enforce it. The “lex terrae” might be trial by combat, as in the Marshal’s case in 1205, or proceedings in a possessory action, as in Eustace de Stuteville’s case, or indictment or appeal, as in the case of Gilbert Basset and Hubert de Burgh; it did not involve a “judicium parium”. That was either an alternative or a last resort, a solution of a judicial or political deadlock. But it is not clear that the barons were thinking only of themselves. Indeed, the conviction that this clause asserts a claim to the judgment of peers in all cases has, I think, been father to the thought that the words “liber homo” do not include the ordinary freeman. Students of the Charter have felt that a claim to the judgment of his peers by the ordinary freeman was either unnecessary or absurd. They have urged also that the barons had no special interest in the judicial rights of the ordinary freeman, and in the manner of King Charles I liked to speak of themselves as freemen. The substitution of the words “liber homo” in the thirty-ninth clause for the “barones et homines sui” of King John’s letters had no special significance.
First, let us look at the use of the words in the Charter. The freeman appears six times. In the fifteenth clause he is protected against unlawful and unreasonable aids levied by his lord; in the twenty-first against amercements which might shatter his social position; in the thirtieth against forced contributions of horses and waggons for carrying purposes; in the thirty-fourth against the loss of his court by a writ “praecipe”; in the thirty-ninth against arbitrary imprisonment, etc.; and in the twenty-seventh clause regulations are laid down for the distribution of his chattels if he should die intestate. If we set aside the thirty-fourth and thirty-ninth clauses for the moment, the Charter clearly safeguards the ordinary freeman; limits are set to the power of his lord; local officials are to respect his freedom; judges are to permit his neighbours to amerce him fairly; his relatives are not to suffer when he commits that last sin of intestacy. In two of these clauses the ordinary freeman is explicitly distinguished from the baron; in the twenty-seventh and thirtieth he is primarily intended. Is it credible that in the thirty-fourth and thirty-ninth clauses the same phrase, “liber homo,” can exclude him?
Recent exponents of the Charter have not, I think, allowed sufficient weight to the fact that the document was not a baronial manifesto, but a carefully drafted statement of a settlement in which churchmen, citizens, and statesmen who had large experience of public affairs took part. Archbishop Langton and several of the barons on each side were not likely to overlook the growing significance of the freeman in English society, or the danger which the community of the realm would run if his economic and legal position were not protected. By the close of the twelfth century the freeholder was an important element in every feudal State of civilized Europe. In most countries it is probable that he did little more than represent a general economic tendency towards fixed services and money rents; and that affranchisement was a privilege of more or less sentimental value, not affecting the actual position of a serf. In England the freeman, however slightly his economic status might differ from that of the villein, was becoming essential to the State, as the State was more and more defined in laws and institutions. Within the economy of the manor, the freeman, or, to speak more accurately, the free tenant, strengthened the wealth and dignity of the lord. On the one hand, enfranchised villeins were founding families. On the other hand, as the “Domesday Book” of St. Paul’s records, old tenements were frequently resettled, or new tenements divided, among free tenants paying fixed rents. It was to the common interest that these men should not be broken; and the thirty-ninth clause of the Charter, in protecting them and their tenements against illegal interference from the King and his officials, in my opinion simply applied the general principle expressed in other clauses.
We have seen that, in the case of outlawry, the “lex terrae” required a charge either by indictment or appeal in the shire court. There is some evidence for the view that the thirty-ninth clause met in addition the desire of the freeman for protection against administrative proceedings at the King’s command, and especially against imprisonment without the prospect of a trial in the local court. The contest between the principles of order and liberty had already begun. The natural instrument of order was the prison. During a political crisis or an epidemic of criminal unrest it was convenient to issue commands for a summary inquiry and for the imprisonment of suspected persons “during his Majesty’s pleasure”. The well-known “edictum regium” of 1195, preserved in the chronicle of Roger of Howden, was in fact a command of this sort—a Crimes Act, disregarding the usual procedure. During King Richard’s absence in the Holy Land the country had been much disturbed; and Hubert Walter, the new justiciar, was determined to restore order. The great inquiry of 1194 did not meet the situation: the justices had probably been too busy to get through the ordinary police business; indeed Roger of Howden tells us that a very important inquiry into the administration of sheriffs and local officials was postponed. Hence in 1195 knights were appointed to deal with crime. A sworn obligation was imposed upon all males of fifteen years and upwards. The inhabitants of each district (“ballia”) swore that they would keep the King’s peace, join in the hue and cry, deliver all who were guilty or suspected of robbery and theft to the knights appointed. The knights passed on the malefactors to the sheriff, who was not to release them save at the command of the King or justiciar “non deliberandos nisi per regem aut ejus capitalem justitiam”. The duty prescribed to the King’s subjects was very similar to that which they performed in the hundred court, but the procedure was different. The presentments were received by special commissioners, and the imprisonment of those presented followed as a matter of course: “per sacramentum fidelium hominum de visneto,” says Roger of Howden, “multos ceperunt et carceribus regis incluserunt.” No mention is made of judgment in the shire court before the justices. The trustworthy men were not the jury of presentment: and the accused had no opportunity of alleging their general good character and of submitting to the proof. It is probable that the ordinary methods of attaching and trying criminals had broken down; they broke down periodically during the Middle Ages; but they were quite definite and must have been well understood. Suspected persons were arrested by the sheriff and his bailiffs, sometimes by the tithing man or in the hue and cry. They might be locked up in the the King’s gaol or entrusted to the custody of the tithing; or they might be handed over to their relatives or pledges who would be made responsible for their appearance. They were presented, whether in captivity or not, at the sheriff’s tourn, and again at the shire court before the justices on eyre. If they were of bad repute and had been arrested in the act, they might be punished according to the discretion of the court without further inquiry, that is to say, without going to the ordeal or other proof; yet even in such a case the assize of Clarendon admitted the right of the accused to find a warrenty—“si non habeat warrentum non habeat legem”. Other suspected persons, those, for example, of decent repute who had been found in possession of stolen goods, went to the ordeal and, after the abolition of the ordeal, were given the opportunity of placing themselves “super patriam,” of standing by the verdict of a jury. In all this process imprisonment was merely an incidental affair; it was not yet a common form of punishment after conviction, and only gradually became so general as a form of detention as to necessitate commissions of gaol delivery.
The distinction between the normal procedure and the drastic action taken by Hubert Walter in 1195 was to be of the greatest importance in future history. Was it realized at the time?
At first sight the answer seems to be decidedly in the negative. It is not likely that any opposition was made to the particular edict of 1195; the royal duty of good government included the maintenance of the public peace. These malefactors were persons of ill fame and were arrested after sworn inquiry among their neighbours. Whether they were tried or not in the future would be a matter of general indifference and could be left to the royal discretion. Moreover, the King was the source of justice; “the man committed to gaol ’per mandatum domini Regis’ would,” in the twelfth and thirteenth centuries, “have found none to liberate him.” By Bracton’s time a sheriff who released on mainprise a man who had been arrested by the King’s command or on the command of the justiciar would have defied the law of England; and, although this rule, it is true, applied to prisoners awaiting trial, there was nothing to compel the King to bring them to trial.
It must be admitted that administrative action such as Hubert Walter’s was regarded as within the lawful scope of authority; also that persons imprisoned by the King’s command could, before the law of “habeas corpus” had been painfully hammered out, be tried at the King’s pleasure. The Edictum Regium of 1195 is the first of a long series of formal acts, enforcing what may be termed the “administrative law” of the prerogative—a prerogative which still exists in King and Parliament. Yet I believe that, even at the close of the twelfth century, the desire to emphasize the extra-ordinary nature of this reserved power was both felt and expressed. This desire is expressed, I think, in the thirty-ninth clause of the Great Charter. The Charter did not succeed in abolishing the prerogative right of imprisonment—it was more successful in stretching the protection of the law over the free tenement—but it did assert the principle that the freeman must normally be accused and punished in a special manner, however awkward or inefficient that manner might be.
From the days of Henry II, the two methods of keeping the King’s peace—the one “per legem terrae,” the other by administrative action—may be traced in mediæval England.
1. It is clear that Henry II anticipated the action of Hubert Walter, probably with much less formality. The proof is to be found in the action of Queen Eleanor after Henry’s death in 1189. She sent commissioners through England to liberate prisoners. The orders given to these commissioners carefully distinguished various kinds of persons who were in gaol. Offenders against the forest law were to be set free and pardoned. Persons imprisoned “per commune rectum” were to find pledge for their appearance in case an appeal should be brought against them; if they could find no pledge, they were to be sworn to appear. Various other classes who had been subject to legal process were also enumerated; they were in most cases to be released under conditions. But one group was, like the offenders against forest law, to be freed unconditionally:—
“Et ut omnes alii qui capti essent et retenti per uoluntatem regis uel justitiae ejus, qui non essent retenti per commune rectum comitatus uel hundredi uel per appellationem, quieti essent.”
Clearly, in 1189 the King’s prisons contained persons who had been imprisoned by decree, not in accordance with the procedure defined in the assizes of Clarendon and Northampton. Unimportant people who should have been presented at the hundred court had not escaped Henry’s attention. However salutary this direct intervention may have been, it was felt to be anomalous; in order to show that a new reign had begun the Queen Mother declared an act of grace.
2. Two years later restrictions were imposed by the barons on the justiciar’s power of administrative disseisin. The critics of William Longchamp admitted the right of the King to disseise a vassal of his property without a rigid observance of the new procedure; but as a rule the lawful customs and assizes of the kingdom must be observed:—
“Sed et concessum est quod episcopi et abbates, comites et barones, uauassores et liberi-tenentes, non ad uoluntatem justitiarum uel ministrorum domini regis de terris uel catallis suis dissaisientur sed judicio curie domini regis secundum legitimas consuetudines et assisas regni tractabuntur uel per mandatum domini regis.”
Two points are noticeable in this passage. The free tenant, who is distinguished from the baron and vavassor, was explicitly included; and protection was particularly desired from the royal officials. The demand was extended in 1215, to protection against the King, and was defined still more clearly in 1217, in a passage which recalls the wording of this treaty:—
“Nullus liber homo...dissaisietur de libero tenemento suo uel libertatibus uel liberis consuetudinibus suis...nisi per legale judicium parium suorum uel per legem terrae.”
3. Disseisin was more easily dealt with than imprisonment. We have seen that, between 1189 and 1215, Hubert Walter systematized the practice of imprisonment “per mandatum regis,” and forbade release “nisi per regem aut ejus capitalem justitiam”. In John’s reign, this practice, recognized as anomalous in 1189, became a nuisance. John was for one thing not concerned to take the opinion of his victims’ neighbours into consideration: he was after booty, not justice. He spared neither small nor great; and he was compelled to surrender this prerogative in 1215. As Mr. McKechnie has reminded us, later opponents of the jurisdiction of the King’s council interpreted the thirty-ninth clause of the Charter in this way. They insisted upon the necessity of indictment or presentment by good and lawful people of the neighbourhood in which the crime was committed. Coke borrowed the same construction from Edward III’s statutes when he translated “per legem terrae” by the words “due process of law”. The phrase, indeed, is a very fair equivalent to Queen Eleanor’s “per commune rectum comitatus uel hundredi uel per appellationem”. On this view the clause comprehended the criminal procedure of the twelfth century. It said in effect: “Unless the case is so anomalous or the accused so important that a trial in the King’s Court by the magnates of the realm is desirable, he must be dealt with in the usual way, by presentment or indictment, in hundred or shire courts with recourse to the customary proofs”.
4. Neither baron nor freeman got matters all his own way. In the thirteenth century we have “state-prisoners” who did not find much help in Magna Carta. In 1241 the sheriffs were instructed by Henry III to keep suspected persons “in prisone nostra donec a nobis aliud habueris mandatum”. In 1264 Simon de Montfort went further than Hubert Walter had gone in 1195. In the King’s name he placed every shire under a single “custos pacis,” who was instructed to use the whole strength of the shire for the arrest of criminals and disturbers of the peace; the arrested persons were to be kept in custody “donec aliud inde praeceperimus”. But Simon’s action was taken under very abnormal conditions. On the whole, the principles laid down in the Charter were observed with remarkable continuity. I have already pointed out how Henry III was obliged in 1234 to reverse an unlawful disseisin and the unlawful outlawry of certain barons. The freeman was also protected. The royal officials, for example, had reason to be very prudent and circumspect in their dealing with suspected persons: a rash imprisonment might involve them in heavy damages. The periodic revival of disorder, in fact, was encouraged by the conditions which made officials and communities alike unwilling to prosecute their duties—a false step was so expensive. The Government tried to deal with disorder by reforms in the police organization, but did not—except on rare occasions, as in 1241 and 1264—interfere with procedure. The police reforms were no more an infringement of the Charter than was the growth in the practice of imprisonment pending trial, or the rule that a man so imprisoned by the King’s command could not be replevied. Yet these reforms have probably been confused with the occasional edicts interfering with the “lex terrae,” although in reality they maintained continuity in procedure. The thirteenth century conservators of the peace, whether they were serjeants elected by the shire, or knights appointed by the King, or important barons invested with special powers, were concerned mainly with the “visum armorum” and the process of arrest. Just as the headboroughs and constables kept the peace in township and manor, so the conservators assisted the execution of the common law in hundred and shire. The elaborate writ of 1242, which assigned knights in each shire, refers explicitly to the subsequent trial of suspected persons “per legem terrae,” thus correcting the action taken in the previous year:—
“Suspectos autem de die per quoscumque arestatos recipiant vicecomites sine dilacione et difficultate et salvo custodiant, donec per legem terræ deliberentur.”
One of the objects of the Statute of Winchester, which codified previous legislation in 1285, was the more conscientious and exhaustive presentment of malefactors by the local juries. The conservators were gradually given judicial functions and developed into the justices of the peace; but they still administered the common law—the “lex terrae”. Hence, when Stubbs traced a connection between Hubert Walter’s “milites assignati,” Earl Simon’s “custos pacis,” and the justice of the peace, he was, I venture to think, suggesting a misleading confusion between the exceptional and the normal in the history of criminal law. So far as their police duties were concerned, the connection between these officials is clear, but it is easy to forget that, whereas the justice of the peace had behind him the Assizes of Arms and Clarendon, the officials appointed in 1195 and 1264 had not. The peculiarity of the measures taken in 1195 and 1264 lay, not in the method of arrest, but in the imprisonment during the King’s pleasure. The commissions issued to the justices of the peace, on the contrary, from the period when they combined the functions of conservators and justices until the year 1590, directed the enforcement of the Statute of Winchester, that is to say, of the final definition of the system laid down in the Assizes of Arms, Clarendon and Northampton. The justices were so circumscribed by the “lex terrae” that in the fifteenth and sixteenth centuries they could not order an arrest until the accused had been indicted in “open sessions of the peace”. In Edward III’s reign the practice was more elastic, but well within the limits of the traditional system. According to the commission of 1357 the justices were to arrest after inquiry “per sacramentum proborum et legalium hominum,” and to determine the cases “secundum legem et consuetudinem regni nostri Angliae”. The statute of 1360 ordered them to pursue, arrest, and punish evildoers “selonc la ley et custumes du roialme”.
The “lex terrae” constantly broke down in the time of justices of the peace as it had constantly broken down in hundred and shire. The difficulties are described clearly in the Statute of Winchester, and in the petitions to the judges on eyre, to council, to the chancellor, and to Parliament. The folk of the district would not present, officials grew slack and corrupt. The justices in their turn were too often either over-worked or open to unjust influences. In the twelfth and thirteenth centuries, the King’s ministers or council tried to remedy matters by decrees for laying criminals by the heels; in the fourteenth the council began to hear and determine petitions on its own account—began, in short, to lay the foundation of that judicial control which was later to develop into the Courts of Star Chamber and Requests. It was under these new circumstances that Parliament, appealing to the Great Charter, raised its voice on behalf of the “lex terrae,” the system of indictment and presentment. The party of law, not for the last time in our history, was not the party of order, even though it was the party of progress.
In the fourteenth century the important phrase was “lex terrae”; in the seventeenth the party of law and progress fastened on the phrase “judicium parium”. In this paper I have tried to show that, however badly the contemporaries of Pym and Selden may have blundered, there is a good deal to be said for their fourteenth-century predecessors. In 1215 neither baron nor freeman was concerned primarily with a judgment of peers so much as with justice. The “judicium parium” ran through a good part of English procedure, but was not universal. From the baronial standpoint it was especially important as a last resort, in cases where justice had not been done, and the law was uncertain. The barons had no intention of excluding from the “lex terrae” any part of the new judicial system, neither the Court of Common Pleas, nor the justices in eyre, nor the presentment of the grand jury. They were demanding, as they demanded at Merton a few years later, that the practices of English law should not be changed. In the same spirit they desired that sheriffs and other local officials should be men acquainted with the “lex regni”. And on the whole they got their way. The peculiarity of English history is not that the common law is supreme, but that it is so practised as to seem supreme, and that other expressions of the sovereign power—whether the equitable jurisdiction of the King’s Council in the fourteenth century or a Defence of the Realm Act in the twentieth—are universally admitted to be temporary and abnormal. If King John had not grossly abused his power as the source of justice, it is quite possible that this tradition would never have been formed. The policy of efficiency practised by men like Hubert Walter, Thomas Cromwell, and Francis Bacon might well have gathered momentum and swept aside the prejudices in favour of the Common Law.