CHAPTER THIRTY-NINE.

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terre.

No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him,[797] unless by the lawful judgment of his peers and by the law of the land.

Footnote 797:

The corresponding provision of the Articles of the Barons (29) adds the word “_vi_” (“_nec rex eat vel mittat super eum vi_”). The idea of open violence, thus clearly indicated, is expressed in contemporary documents by the fuller phrase, _per vim et arma_. The accepted translation, as contained in the _Statutes at Large_, “nor will we pass upon him nor condemn him,” is thus inadequate. The editors of the _Statutes of the Realm_, I. 117, suggest “deal with him” as an alternative translation. Coke, it will be seen _infra_, is the original source of the error which connects this “going” and “sending” with legal process.

This chapter occupies a prominent place in law-books, and is of considerable importance, although there are reasons for holding that its value has been grossly exaggerated.

I. _Its Main Object._ It has been usual to read it as containing a guarantee of trial by jury to all Englishmen; as absolutely prohibiting arbitrary commitment; and as undertaking solemnly to dispense to all and sundry an equal justice, full, free, and speedy.[798] The traditional interpretation has thus made it, in the widest terms, a promise of law and liberty, and good government to every one.[799] A careful analysis of the words of the clause, read in connection with its historical genesis, suggests the need for modifications of this view. It was in accord with the practical genius of this great document that it should direct its energies, not to the enunciation of vague platitudes and well-sounding generalities, but to the reform of a specific and clearly defined group of abuses. Its main object was to prohibit John from resorting to what is sometimes whimsically known in Scotland as “Jeddart justice.”[800] It forbade him for the future to place execution before judgment. Three aspects of this prohibition may be emphasized.

Footnote 798:

See, _e.g._, Coke, _Second Institute_, 55.

Footnote 799:

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, _English Constitution_, 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.”

Footnote 800:

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) _Judgment must precede execution._ In some isolated cases, happily not numerous, John proceeded, or threatened to proceed, by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.[801] Complaint was made of arrests and imprisonments suffered “without judgment” (_absque judicio_); and these are the very words used in the "unknown charter"—“_Concedit Rex Johannes quod non capiet homines absque judicio_.”[802] Both the Articles of the Barons and Magna Carta expand this phrase. _Absque judicio becomes nisi per legale judicium parium suorum vel per legem terre_, thus guarding, not merely against the more obvious evil—execution without judgment—but also against John’s subtler device for attacking his enemies by a travesty of judicial process. The Charter asks not only for a “judgment,” but for a “judgment of peers” and “according to the law of the land.” Two species of irregularities were condemned by these words; and these will be explained in the two following subsections.

Footnote 801:

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.”

Footnote 802:

See Appendix.

(2) _Per judicium parium_: every judgment must be delivered by the accused man’s “equals.” The need for “a judgment of peers” was recognized at an early date in England.[803] It was not originally a class privilege of the aristocracy, but a right shared by all grades of freeholders; whatever their rank they could not be tried by their inferiors.[804] In this respect English custom did not differ from the procedure prescribed by feudal usage on the Continent of Europe.[805] Two applications of this general principle had, however, special interest for the framers of Magna Carta: the “peers” of a Crown tenant were his fellow Crown tenants, who would normally deliver judgment in the _Curia Regis_; while the “peers” of the tenant of a mesne lord were the other freeholding tenants assembled in the Court Baron of the manor. In either case judgments were given _per pares curiae_, who decided what “test” should be appointed, who thereafter sat as umpires while their accused “peer” carried this through to success or failure, and who finally pronounced a sentence in accordance with the result. Crown tenants and under-tenants alike complained that they were deprived by John of the only safeguard they could trust, the judgment of a full court of Englishmen of their own rank, who presumably, therefore, had no undue bias towards conviction. John, not here an innovator, but merely resorting wholesale to practices used sparingly and with prudence in earlier reigns, had set these rights openly at defiance. His political and personal enemies were frequently exiled, or deprived of their estates, by the judgment of a tribunal composed entirely of Crown nominees ready to give any sentence which John might dictate. Magna Carta promised a return to the recognized ancient practice. No freeman should henceforth suffer in person or in property as the result of a judgment by the professional judges forming the bench of Common Pleas, or the other bench known as _coram rege_. This was to abolish not merely the abuses of John, but the system of Henry II., which he abused.

Footnote 803:

The earliest known reference occurs in the so-called _Leges Henrici primi_ (c. 31). _Unusquisque per pares suos judicandus est et ejusdem provinciae_.

Footnote 804:

Cf. Pollock and Maitland, I. 152, and authority cited. As there was no “peerage” in England in the modern sense (cf. _supra_, p. 237) 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. Every man’s equals were his “peers.”

Footnote 805:

See Stubbs, _Const. Hist._, I. 578, n., for foreign examples of _judicium parium_.

The varied meanings conveyed by the word “peers” to a medieval mind, together with the nature of _judicium parium_, may be further illustrated by the special rules applicable to four exceptional classes of individuals:—(_a_) all Jews of England and Normandy enjoyed under John’s charter of 10th April, 1201, the right to have complaints against them judged by men of their own race. For them a _judicium parium_ was a judgment of Jews.[806] (_b_) A foreign merchant, by later statutes, obtained the right to a special form of _judicium parium_—to a jury of the “half tongue” (_de medietate linguae_), composed partly of aliens of his own country.[807] (_c_) The peers of a Welshman seem, in some disputes with the Crown, to have been men drawn from the marches, and therefore unlikely to side entirely either with the English or with the Welsh point of view. Such at least is the most plausible interpretation of the phrase “_in marchia per judicium parium suorum_,” occurring in later chapters of Magna Carta, and granting to the Welsh redress of wrongful disseisins.[808] (_d_) A Lord Marcher occupied a peculiar position, enjoying rights denied to barons whose estates lay in more settled parts of England. In 1281 the Earl of Gloucester, accused by Edward I. of a breach of allegiance, claimed to be judged, not by the whole body of Crown tenants, but by such as were, like himself, lords marchers.[809] These illustrations show that a “trial by peers” had a wider and less stereotyped meaning in the Middle Ages than it has at the present day.[810]

Footnote 806:

“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. 269.

Footnote 807:

See _Carta Mercatoria_, c. 8; 27 Edward III. stat. 2, c. 8; and 28 Edward III. c. 13; also Thayer, _Evidence_, p. 94.

Footnote 808:

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

Footnote 809:

See _Placitorum Abbreviatio_, p. 201, cited Pollock and Maitland, I. 393 n.

Footnote 810:

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.”

(3) _Per legem terrae._ No freeman could be punished except in accordance with the law of England. These often-quoted words were used in Magna Carta with special though not perhaps exclusive reference to the narrow technical meaning of “_lex_” which was so prominent in 1215 and which has been already explained.[811] The Great Charter promised that no plea, civil or criminal, should henceforth be decided against any freeman until he had failed in the customary "proof"—whether battle, or ordeal, or otherwise.[812]

Footnote 811:

See _supra_, p. 103, and cc. 18, 36, and 38.

Footnote 812:

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. 400. 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.”

This older, more technical signification was gradually forgotten, and “the law of the land” became the vague and somewhat meaningless phrase of the popular speech of to-day. It was only natural that this change of meaning should be reflected in subsequent statutes reaffirming, expanding, or explaining Magna Carta. An important series of these, passed in the reigns of Edward III. and Richard II., shows how the _per legem terrae_ of 1215 was read in the fourteenth century as equivalent to the wider expression “by due process of law,” and how the Great Charter was interpreted as prohibiting the trial of men for their lives and limbs before the King’s Council on mere informal and irresponsible suggestions, sometimes made loosely or from malicious and interested motives.[813]

Footnote 813:

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.

The Act of 1352, for example, after reciting the provision of Magna Carta at present under discussion, insisted on the necessity of “indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done.” Coke,[814] founding apparently on the terms of these fourteenth-century statutes, makes “_per legem terrae_” of the Charter equivalent to “by due process of law” and that again to “by indictment or presentment of good and lawful men,” thus finding the grand jury enshrined in Magna Carta. The framers of the Petition of Right[815] read the same words as a prohibition, not only of imprisonment “without any cause showed” but also of proceedings under martial law, thus interpreting the aims of King John’s opponents in the light of the misdeeds of King Charles, and applying to the rude system established by Henry of Anjou reforms more appropriate to the highly developed administration of the Tudors.

Footnote 814:

_Second Institute_, p. 46.

Footnote 815:

3 Charles I. c. 1.

These glosses must be discarded; the words of John’s Charter promised a threefold security to all the freemen of England. Their persons and property were protected from the king’s arbitrary will by the rule that execution should be preceded by a judgment—by a judgment of peers—by a judgment according to the appropriate time-honoured “test,” battle, compurgation, or ordeal.

(4) _The meaning of “vel.”_ The peculiar use of the word “_vel_” introduced an unfortunate element of ambiguity. No proceedings were to take place "without lawful judgment of peers or by the law of the land"—“or” thus occurring where “and” might naturally be expected. Authorities on medieval Latin are agreed, however, that “_vel_” is sometimes equivalent to _et_.[816] Comparison with the terms of chapter 52 and with those of the corresponding Article of the Barons places the matter almost beyond doubt. The 25th of the Articles of the Barons had provided that all men disseised by Henry or Richard should “have right without delay by judgment of their peers in the king’s court,” giving no hint of any possible alternative to _judicium parium_. Chapter 52 of the Charter, in supplementing the present chapter, describes the evils complained of in both as acts of disseisin or outlawry by the king “_sine legale judicio parium suorum_,” leaving no room for ambiguity.

Footnote 816:

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 an opposite 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.

II. _The Scope of the Protection afforded._ The object of the barons was to protect themselves and their friends against the king, not to set forth a scientific system of jurisprudence: the _judicium parium_ was interposed as a barrier against prosecutions instituted by the king, not against appeals of private individuals. Pleas following upon accusations by the injured party were held in 1471 not to fall within the words of Magna Carta.[817] This was a serious limitation; but as against the Crown the scope of the protection afforded by the Great Charter was very wide indeed. Care was taken that the three-fold safeguard should cover every form of abuse likely to be practised by John.

Footnote 817:

See, _e.g._, Pike, _House of Lords_, 217, citing Littleton in _Year Book_, Easter, 10 Edward IV., No. 17, fo. 6.

(1) _Capiatur vel imprisonetur._ If these two words were literally interpreted, and the provision they embody strictly enforced, all orderly government would be at an end. When a crime has been committed, the offender must be arrested and provisionally detained, without waiting for any judgment, whether of peers or otherwise. A man accused of crime may, indeed, justly demand three things: a trial before condemnation, that the trial be not too long delayed, and that under some circumstances he should be meanwhile released on bail. Magna Carta goes further, promising complete exemption from arrest until judgment had been passed upon him. Here the barons extorted a wider concession than could possibly be enforced. Their excess of caution had led them to use a loose and dangerously wide phrase, which ought not to be too literally interpreted.[818]

Footnote 818:

If “_vel_” might be translated by “and” and “_imprisonetur_” by “detained in gaol,” the phrase would then mean that no freeman should be kept too long in prison pending his trial, or permanently imprisoned without trial.

(2) _Aut disseisiatur._ Avarice was one of the most frequent motives of John’s oppressions: the whole machinery of justice was valued primarily as an engine for transferring land and money to his treasury. Crown tenants frequently found their estates appropriated by the Crown as escheats. That this was one of their grievances to which the barons attached supreme importance is shown in many ways: by the care taken in the 25th of the Articles of the Barons and in chapter 52 of the Charter to provide procedure for restoring to their rightful owners estates of which they had been improperly “disseised,”[819] and by the terms of certain writs issued by John after the treaty at Runnymede, for example the letter of 19th June to his half-brother, the Earl of Salisbury, explaining that peace had been made on condition of the immediate restoration of all “lands, castles, and franchises from which we have caused any one to be disseised _injuste et sine judicio_.”[820]

Footnote 819:

For this word cf. _supra_, c. 18. The treaty entered into by John in 1191 (discussed _infra_) speaks of the “disseisin of chattels,” showing that the word had not yet been absolutely restricted to real estate.

Footnote 820:

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 and land-tenure. Pollock and Maitland, I. 393, countenance a broader interpretation. One point is beyond doubt: _judicium parium_ extended to the assessing of amercements. In c. 21 earls and barons are confirmed in the right to be amerced only _per pares suos_.

Later versions of Magna Carta (beginning with that of 1217) are careful to define the objects to be protected from disseisin: “free tenements, franchises, and free customs.”[821] (_a_) _Liberum tenementum._ “Free” tenements were freeholds as opposed to the holdings of villeins. None of their belongings thus protected were more highly valued by the barons than their feudal strongholds.[822] Castles claimed by great lords as their own property are mentioned in many writs of the period—for example, in that to the Earl of Salisbury already cited—while chapter 52 of Magna Carta gives them a prominent place among the “disseisins” to be restored. (_b_) “_Libertates_” covered feudal rights and incidents of too intangible nature to be appropriately described as “holdings.” In a sense, all the rights secured by Magna Carta were “liberties”; but the word is probably used here as equivalent to “franchises,” embracing feudal jurisdictions, immunities, and privileges of various sorts, all treated by medieval law as falling within the category of “property.” (_c_) _Consuetudines_ had two meanings, a broad general one and a narrower financial one.[823] As the Charter of 1217 uses a proprietary pronoun (no freeman shall be disseised of _his_ free customs), it probably refers to such rights as those of levying tolls and tallages. These vested interests were of the nature of monopolies throughout the territory of the lord who enjoyed them; and it follows that Coke, in treating this passage as a text on which to preach the doctrine that monopolies have always been illegal in England, aims unusually wide of his mark. Commenting on the words “_de libertatibus_,” he declares that “generally all monopolies are against this great charter, because they are against the liberty and freedom of the subject and against the law of the land.”[824] In this error he has been assiduously followed.[825]

Footnote 821:

_De libero tenemento suo vel libertatibus vel liberis consuetudinibus suis._

Footnote 822:

Cf. _supra_, p. 176.

Footnote 823:

Cf. _supra_, p. 290.

Footnote 824:

_Second Institute_, p. 47.

Footnote 825:

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.

(3) _Aut utlagetur, aut exuletur, aut aliquo modo destruatur._ The practice of placing outside the protection of the law such evildoers as could not be brought to justice had its origin in those early days when the existing machinery of law was inadequate to the work required of it. With the progress of order and organization, the criminal’s chances of evading justice became fewer; and the declaration of outlawry, which could only be made in the county court, tended to become a mere formality, preliminary to the forfeiture of the outlaw’s lands and goods. The expedient was one which recommended itself peculiarly to John’s genius; it was his deliberate policy to terrify those with whom he had quarrelled, until they fled the country; then to summon them three times before the county court to answer the charges against them, knowing well that they dared not face his corrupt and servile officers; and finally to have them formally outlawed and their property seized. Such had been the fate suffered by two of the baronial leaders, Robert Fitz Walter and Eustace de Vesci, in the autumn of 1212.[826] Outlawry was not always, however, a mere formality in John’s reign. The man who had been outlawed was outside the pale of society; anyone might slay him at pleasure; in the grim phrase of the day, he bore "a wolf’s head" (_caput lupinum_), and might be hunted like a noxious beast. A reward of two marks was offered for each outlaw’s head brought to Westminster. This sum was paid in 1196 for the head of William of Elleford.[827] The word “exiled” explains itself; and commentators have very properly noted the care taken to widen the scope of the clause by the use of the words “or in any other way molested.”[828]

Footnote 826:

See _supra_, p. 30.

Footnote 827:

See _Pipe Rolls_, 7 Richard I., cited by Madox, I. 201.

Footnote 828:

_E.g._, Coke, _Second Institute_, p. 48.

(4) “_Nec super eum ibimus, nec super eum mittemus._” These words have been frequently misinterpreted. They must be viewed in the light of the historical incidents of the immediately preceding years; and, so read, they present no difficulties, and leave no room for ambiguity. Their object was to prevent John from substituting violence for legal process; from taking the law into his own hands and “going against them” with an army at his back, or “sending against them” in similar wise. He must never again attack _per vim et arma_ men unjudged and uncondemned.

The meaning is plain. Yet Coke, following his vicious method of assuming the existence, in some part of Magna Carta, of a warrant for every legal principle established in his own day, has utterly misled several generations of commentators. He maintained that what John promised was to refrain from raising in his own courts actions in which he was personally interested. In elaborating this error, he drew a fine distinction between the court of King’s Bench, otherwise known as _coram rege_, because the king was always in theory present there, and other courts in which were present only those to whom he had delegated authority by a writ “sent” to it. _Ibimus_, he seems to think, applied in the former case; _mittemus_ in the latter. To quote his own words, "No man shall be condemned at the king’s suit, either before the king in his bench, where the pleas are _coram rege_ (and so are the words, _nec super eum ibimus_, to be understood) nor before any other commissioner, or judge whatsoever (and so are the words, _nec super eum mittemus_, to be understood), but by the judgment of his peers, that is, equals, or according to the law of the land."[829] Coke is completely in error; it was the use of brute force, not merely a limited form of legal process, which John in these words renounced.

Footnote 829:

See _Second Institute_, page 46. John Reeves, _History of English Law_, I. 249 (third ed.), while condemning Coke, gives an even more strained interpretation of his own, founded on the chance juxtaposition of the two verbs in one passage of the Digest. On quite inconclusive grounds he draws the inference that both words refer exclusively to diligence against "goods and chattels"—diligence against the person, and diligence against landed estate having previously been treated in words specially appropriate to each of them respectively. Dr. Lingard, _History of England_, III. c. 1, deserves praise as the first commentator who took the correct view.

III. _What Classes of Men enjoyed the Protection of Judicium Parium?_ No “freeman” was to be molested in any of the ways specified; but how far in the social scale did this description descend? Coke claims the villeins as free for the purposes of this chapter and of chapter I., while rejecting them for the purposes of chapter 20.[830] His right to the status of a freeman has already been disallowed,[831] and any possible ambiguity as to his share in the benefits of the present chapter is removed by the deliberate words of the revised version of 1217. Chapter 35 of that reissue, with the object of making its meaning clearer, inserts after “_disseisiatur_” the words (already discussed) “_de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis_.” Mr. Prothero suggests that this addition implies an advance on the privileges secured in 1215:—"It is worth while to notice that the words in which these liberties are stated in §35 of the charter of 1217 are considerably fuller and clearer than the corresponding declaration in the charter of 1215."[832] It is safer to infer that no change was here intended, but merely the removal of ambiguity. If there is a change it is rather a contraction than an extension, making it clear that only “free” tenements are protected, and excluding carefully the property of villeins and even holdings of _villenagium_ (or unfree land) belonging to freemen.[833] Care was thus taken to make it plain beyond any reasonable doubt that no villein should have part or lot in rights hailed by generations of commentators as the national heritage of all Englishmen.[834]

Footnote 830:

_Second Institute_, pp. 4, 27, and 45.

Footnote 831:

See _supra_, c. 20.

Footnote 832:

_Simon de Montfort_, 17, n. Cf. Blackstone, _Great Charter_, xxxvii., “the more ample provision against unlawful disseisins.”

Footnote 833:

Cf. Pollock and Maitland, I. 340, n.

Footnote 834:

Cf. _supra_, p. 142. 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.

IV. _Reactionary Side of these Provisions._ To insist rigorously that in all cases a judgment of feudal peers, either in King’s Court or in Court Baron, should take the place of a judgment by the officials of the Common Bench and the King’s Bench, was to reverse one of the outstanding features of the policy of Henry II. In this respect, the present chapter may be read in connection with chapter 34. The barons, indeed, were not strict logicians, and probably thought it prudent to claim more than they intended to enforce.[835] Yet a real danger lurked in these provisions; the clause was, after all allowance has been made, a reactionary one, tending to the restoration of feudal privileges and feudal jurisdictions, inimical alike to the Crown and to the growth of really popular liberties. John promised that feudal justice (as before the reforms of his father) should be dispensed in feudal courts; and, if this promise had been kept, the result would have been to check the development of the small committees destined to become at no distant date the Courts of King’s Bench and Common Pleas, and to revive the fast-waning jurisdictions of the manorial courts on the one hand and of the _commune concilium_ on the other.[836]

Footnote 835:

Mr. G. H. Blakesley in an able article in the _Law Quarterly Review_, V. 125, goes so far as to reduce the entire chapter to an attempt to protect feudal justice in its struggle with royal justice. "It may reasonably be suspected that cap. 39 also was directed merely to maintain the lord’s court against Crown encroachments."

Footnote 836:

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 fellow barons among the judges of the “Benches,” and did not necessarily involve a full meeting of the _commune concilium_ summoned in the accustomed way. _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. This feudal tendency is emphasized by the consideration that private franchises and private castles bulked prominently among the rights of property protected from arbitrary seizure by the king.

V. _The Genesis of the Chapter._ The interpretation here given of this famous chapter is emphasized by a comparison of its words with certain earlier documents and events. The reigns of Richard and John furnish abundant examples of the abuses complained of. In 1191 Prince John, as leader of the opposition against his brother’s Chancellor, William Longchamp, concluded a treaty protecting himself and his allies from the very evils which John subsequently committed against his own barons. The words of this treaty of 1191 admirably bring out what Richard’s barons sought to secure, and what they sought to escape. Longchamp conceded in Richard’s name that the bishops and abbots, earls and barons, “vavassors” and free-tenants, should not be disseised of their lands and chattels at the will of the justices or ministers of the king, but that they should be dealt with by judgment of the king’s court according to the lawful customs and assizes, or by the king’s command.[837] The magnates were not to be judged by officials whom they despised as their social inferiors and mistrusted as the paid instruments of royal tyranny; their claim to be tried by their equals in the king’s court was granted.

Footnote 837:

See R. Hoveden, III. 136. This truce, which was dated 28th July, 1191, had been brought about by the mediation of the archbishop of Rouen and of certain of the English prelates.

Now, the main subject of the arbitration, ending in the treaty from which this excerpt has been taken, was the custody of certain castles and estates. After the right to occupy each separate castle in dispute had been carefully determined, provision was then made, in the general words cited above, against this arrangement being disturbed without a judgment of the _curia regis_. Disseisin, and particularly disseisin of castles, was thus in 1191, as in 1215, a topic of special prominence.

Early in 1213 the king attempted to take vengeance upon his opponents in a manner which they are not likely to have forgotten two years later at Runnymede, and which probably influenced the wording of the present chapter. John, resenting bitterly the attitude of the northern barons who had refused alike to accompany him to Poitou and to pay scutage, determined to take the law into his own hands. Without summoning his opponents before a _commune concilium_ of his feudal tenants, without even a trial and sentence by one of his Benches, without making any effort to investigate the justice or injustice of their pleas for refusing, he set out with an army to punish them. He had gone as far north as Northampton on his mission of vengeance when he was overtaken by the archbishop of Canterbury, a strong advocate of conciliation. On 28th August, 1213, Stephen Langton persuaded the king to defer forcible proceedings _until he had obtained a legal sentence_ in a formal _Curia_.[838] That John once again threatened recourse to violent methods may be safely inferred from the words of a letter patent issued in May, 1215, when both sides were armed for war. He proposed arbitration, and promised a truce until the arbitrators had given their award. The words of this promise are notable; since, not only do they illustrate the procedure of August, 1213, but they agree closely with the clause of Magna Carta under discussion. The words are:—“Know that we have conceded to our _barons_ who are against us, that we shall not take or disseise them or their men, nor shall we go against them _per vim vel per arma_, unless by the law of our kingdom, or by the judgment of their peers _in curia nostra_.”[839] Magna Carta repeats this concession in more general terms, substituting “freemen” for the “barons” of the writ—an alteration which necessitated the omission from the charter of the concluding words of the writ, “_in curia nostra_”; because the peers of freemen, other than barons, would be found, not among the barons in the king’s court, but among the freeholders in the court baron.[840]

Footnote 838:

Cf. _supra_, p. 35.

Footnote 839:

The writ is dated 10th May, 1215, and appears in _New Rymer_, I. 128.

Footnote 840:

Magna Carta also omits as unnecessary “_per vim et arma_,” though the Articles of the Barons had contained the word “_vi_.”

The words of Magna Carta, taken in connection with the treaty of 1191 and the writ of 1213, are thus seen to have a narrower meaning than that extracted from them by subsequent commentators.

VI. _Later History of “Judgment of Peers.”_ The claim made by the barons at Runnymede was re-asserted in somewhat varying forms by the same barons or by their descendants on many subsequent occasions. The “_judicium parium_” was destined to enjoy a long and brilliant career, and the interpretations put upon it by the Crown and by the opposition respectively, while interesting in themselves, afford strong confirmation of the somewhat restricted estimate of the scope of the present chapter, which has been above enunciated.

(1) _The baronial contention._ The earls and barons, throughout the reign of John’s unhappy son, attempted to place a broad interpretation on the privilege secured to them by this chapter—claiming that all pleas, civil and criminal (such at least as were raised against them at the instance of the Crown) should be tried by their fellow earls and barons, and not by professional judges of lower rank.

(2) _The royal contention._ The Crown, on the other hand, while not openly infringing the charter, tried to narrow its scope. The judges appointed by the king to determine pleas _coram rege_, no matter what their original status might be, became (so the Crown argued) by such appointment, the peers of any baron or earl. This doctrine was enunciated in 1233 when Henry III. and his justiciar, Peter des Roches, denounced Richard, Earl Marshal, as a traitor, in a meeting (_colloquium_) of Crown tenants held at Gloucester on 14th August of that year. Thereafter, “_absque judicio curiae suae et parium suorum_,” as Matthew Paris carefully relates,[841] Henry treated earl Richard and his friends as outlaws, and bestowed their lands on his own Poitevin favourites. An attempt was made, at a subsequent meeting held on 9th October, to have these proceedings reversed on the ground, already stated, that they had taken place _absque judicio parium suorum_.

Footnote 841:

_Chron. Maj._, III. 247-8.

The sequel makes clear a point left vague in Matthew’s narrative: there had been a judgment previous to the seizure, but only a judgment of Crown officials _coram rege_, not of earls and barons in the _commune concilium_. The justiciar defended the action of the government by a striking argument: “there were no peers in England, such as were in the kingdom of France,” and, therefore, John might employ his justices to condemn all ranks of traitors.[842] Bishop Peter was here seeking to evade the provisions of Magna Carta without openly defying them, and his line of argument was that the king’s professional judges, however lowly born, were the peers of an English earl or baron.[843] Neither the royal view nor the baronial view entirely prevailed. A distinction, however, must be drawn between criminal and civil pleas.

Footnote 842:

M. Paris, _Ibid._, III. 251-2.

Footnote 843:

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 a more intimate knowledge of the law he administered as justiciar in 1233 than any modern writer can have. In the matter of amercements, at least, the barons of the exchequer acted as the peers of earls and barons.

(3) _Criminal pleas._ Offenders of the rank of barons partially made good their claim to a trial by equals; while all other classes failed. A further distinction is thus necessary. (_a_) _Crown tenants._ The conflicting views held by king and baronage here resulted in a compromise. In criminal pleas, the Crown was obliged to recede from the high ground taken by Peter des Roches in 1233. Unwillingly, and with an attempt to disguise the fact of surrender by confusing the issue, Bracton in theory and Henry III. in practice admitted part of the barons’ demand, namely, “that in cases of alleged treason and felony, when forfeiture or escheat was involved, they should be judged only by earls and barons.”[844] This concession was by no means based on the broad ground taken by the Charter. Bracton does not admit that the king’s justices were not “peers” of barons; but deduces their disability from the narrower consideration that the king, through his officials, ought not to be judge in his own behalf, since his interests in escheats might bias his judgment. This is the reason why, from Bracton’s day to our own, “the privilege of peers,” which gradually assumed its modern form, has never extended to misdemeanours, since such convictions never involved forfeiture or escheat to the Crown.

Footnote 844:

Pike, _House of Lords_, 173. See also Bracton, f. 119; Pollock and Maitland, I. 393.

The manner of giving effect to this concession is noteworthy. The _judicium parium_ was secured to earls and barons in later reigns, not merely by giving seats on the judicial bench to a few holders of “baronies,” but by bringing the case before the entire body of earls and barons in _commune concilium_. What the barons got at first was “judgment” by peers. The actual “trial” was the “battle,” the fellow-peers acting as umpires and enforcing fair play.[845] Although new modes of procedure came to prevail, the Court of Peers continued its control, and the _judgment_ of peers gradually passed into the modern _trial_ by peers.[846] The subject has been further complicated by the gradual growth of the modern conception of a “peerage,” embracing various grades of “nobles.” In essentials, however, the rights of a baron (or of any magnate of higher grade) accused of crime have remained unchanged from the days of Henry III. to our own. The privilege of “trial by peers,” whatever the reason underlying it, still extends to treason and felony, and is still excluded from misdemeanours. When competent it still takes place before a "Court of Peers"—namely, the House of Lords if Parliament is in session, and the Court of the Lord High Steward if not. Petty offences committed by peers, like those committed by commoners, come before the ordinary courts of law. Under these limitations, then, the privilege of a peer to be tried only in the House of Lords (or in the Court of the Lord High Steward) has been for centuries a reality in England for earls and barons, and also for members of those other ranks of the modern “peerage” unknown in 1215—dukes, marquesses, and viscounts.[847]

Footnote 845:

“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.

Footnote 846:

Pike, _Ibid._, 174–9.

Footnote 847:

The privilege was extended to peeresses by the statute 20 Henry VI. c. 9.

(_b_) _For tenants of a mesne lord_, however, no similar privilege has been established, even in a restricted form. In charges of felony, as in those of misdemeanour, all freemen outside the peerage are tried, and have been tried for many centuries past, in the ordinary courts of law. There is no privileged treatment for the knight or the landed gentleman. All are judged in the same tribunals and by the same procedure. Private feudal courts never recovered from the wounds inflicted by Henry II. The clauses of Magna Carta which sought to revive them were rendered nugatory by legal fictions or simply by neglect.

(4) _Civil pleas._ Various attempts were made by the barons as a class, or by its influential members, to make good a claim to _judicium parium_ in civil cases.[848] The chief anxiety, perhaps, of the men of 1215 was to save their estates and castles from disseisin consequent on such pleas. Yet the barons’ efforts in this direction were entirely unsuccessful. The House of Lords (except in cases involving the dignity or status of a peer) has never claimed to act as a court of first instance in civil cases to which a peer was a party. Noble and commoner are here perfectly on a level. No “peer of the realm” has for many centuries asked to plead before a special court of his peers in any ordinary non-criminal litigation, whether affecting his real or his personal estate.

Footnote 848:

The Earl of Chester claimed it in 1236-7, and the Earl of Gloucester (in a special form as a lord marcher) in 1281. See Pollock and Maitland, I. 393, n.

VII. _Erroneous Interpretations._ The general tendency to vagueness and exaggeration has already been incidentally discussed. Two mistakes of unusual persistence require more detailed notice.

(1) _The identification of_ judicium parium _with trial by jury_. The words of the present chapter form the main, if not the sole, ground on which this traditional error has been based.[849] The mistake probably owes its origin to a not unnatural tendency of later generations of lawyers to explain what was unfamiliar in the Great Charter by what was familiar in their own experience. They found nothing in their own day to correspond with the _judicium parium_ of 1215, so far at least as affected those who were not Crown tenants; they found nothing in Magna Carta (unless it were this clause) to correspond with their own trial by jury: therefore they identified the two, interpreting the present chapter as a general guarantee of the right to trial by jury.[850] Mr. Reeves, Dr. Gneist, and other writers long ago exposed this error, but the most conclusive refutations are those recently given by Prof. Maitland and Mr. Pike. The arguments by which these writers prove that “judgment by peers” is one thing and the “verdict of a jury” quite a different thing are of a somewhat technical nature;[851] but as their importance is far-reaching they must be explained, however briefly. They seem to be mainly three in number:

Footnote 849:

Cf. _supra_, pp. 158-163.

Footnote 850:

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, and in Taswell-Langmead, _Const. Hist._, 110. It was repeated only the other day by so high an authority as Dr. Goldwin Smith in his recently published work, ”_The United Kingdom_," I. 127, where he maintains that chapter 39 of Magna Carta “affirms the right of trial by jury.”

Footnote 851:

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

(_a_) The criminal petty jury cannot here be intended, since it had not been invented in 1215:[852] to introduce trial by jury into John’s great Charter is an unpardonable anachronism. (_b_) The barons would have repudiated trial by jury if they had known it. They desired (here as in