CHAPTER THIRTY-EIGHT.

Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc inductis.

No bailiff for the future shall put any man to his “law” upon his own mere word of mouth, without credible witnesses brought for this purpose.

The evident intention of this provision was to prevent irregularities at the critical stage of a trial, when the _lex_ appointed by the court was attempted. This word _lex_, in its technical sense, may be correctly applied to any form of judicial test, such as compurgation, ordeal, or combat, the precise meaning required in each particular case being determined by the context.[783] In this passage of Magna Carta, it may be used in its widest connotation, but reasons will be immediately adduced for the belief that _ordeal_ was specially present to the minds of those who framed it. Bailiffs, (the word is a wide one, including certainly the sheriffs and their underlings, and possibly also the stewards who presided in manorial courts)[784] had evidently been guilty of irregularities which public opinion of the day condemned. So much is clear: but authorities differ widely as to the exact nature of the abuse which is here prohibited.

Footnote 783:

Dr. Stubbs (_Const. Hist._, I. 576) translates “_lex_” in this passage by “compurgation or ordeal.” Pollock and Maitland (II. 604, n.) explain that the word “does not necessarily point to unilateral ordeal; it may well stand for trial by battle.” Thayer (_Evidence_, 199–200) extends it even further, so as to embrace judicially appointed tests of every kind—battle, ordeal of fire or water, simple oath, oath with compurgators, charter, transaction witnesses, or sworn verdict. Bigelow (_Placita Anglo-Normannica_, 44) cites from Domesday Book cases where litigants offered proof _omni lege_ or _omnibus legibus_, that is, in any way the court decided. Sometimes _lex_ had a more restricted meaning; in the Customs of Newcastle-on-Tyne _(Select Charters_, 112) it seems to mean compurgation as opposed to combat.

Footnote 784:

Cf _supra_, c. 24. Coke, _Second Institute_, p. 44, following the doubtful authority of the _Mirror of Justices_, extends it to all king’s justices and ministers. The unqualified “_ballivus_” of this passage should, perhaps, be contrasted with the “_noster ballivus_” of cc. 28 and 30.

I. _Probable Object of the Chapter._ The key is supplied by the words of article 4 of the Assize of Clarendon, the provisions of which still regulated the Crown’s practice in criminal cases in the reign of John. That ordinance explains the procedure to be followed when robbers, murderers, or thieves, apprehended by the sheriffs upon indictment, were brought before the justices for trial: “and the sheriffs shall bring them before the justices; and with them they shall bring two lawful men of the hundred and of the village where they were apprehended, to bear the record of the county and of the hundred, as to why they had been apprehended; and, there, before the justices they shall make their law.” This “law” is elsewhere in the ordinance clearly identified with ordeal;[785] and the purport of the whole was that accused men could not be put to ordeal except in presence of two lawful men who had been present at the indictment and had come before the justices specially to bear witness thereof. In other words, the sheriff’s verbal report of the indictment “_sine testibus fidelibus ad hoc inductis_” was not sufficient. The “county” and the “hundred” which had accused the prisoner must send representatives to bear record of the facts.[786]

Footnote 785:

See article 12 where “_eat ad aquam_” is contrasted with “_non habeat legem_” of article 13 (_Select Charters_, 144).

Footnote 786:

The “_ad portandum recordationem comitatus et hundredi_” of the ordinance is exactly opposed to the “_simplex loquela sua_” of the Charter.

The ordeal indeed was a solemn affair for which careful rules had been laid down. Every precaution was taken against the sheriff abusing his authority. His account of the indictment was checked by the presence of subordinate officials as well as of these members of the accusing jury. Moreover, lords of feudal courts, claiming this franchise, could only exercise it under royal warrant. Henry, the inventor of the system, sternly repressed all irregularities whether those of his own bailiffs or of the stewards of private lords.[787]

Footnote 787:

Thus in 1166 (the year of the Assize of Clarendon) the “_Soca_” of Alverton was amerced because of a man placed “_ad aquam sine serviente_” (_Pipe Roll_, 12 Henry II., p. 49 of edition of Pipe Roll Society). In 1185 the “_villata_” of Preston paid 5 marks for putting a man “_ad aquam sine waranto_” (_Pipe Roll_, 31 Henry II., cited Madox, I. 547). In the same year a certain Roger owed half a mark for being present at an ordeal “_sine visu servientum regis_”: and heavy fines were exacted from those who had put a man “_injuste ad aquam_” (_Ibid._). Apparently the bailiffs were sometimes described as the king’s serjeants and sometimes as the sheriff’s serjeants: the same Roll records fines for a man buried “_sine visu servientum vicecomitis_” and for a robber hanged “_sine visu servientis regis_” (_Pipe Roll_, 31 Henry II.).

The same rules of procedure prevailed under John, who was less careful, however, than his father had been, to suppress irregularities. In Magna Carta he promised amendment. The presence of witnesses required by the Assize of Clarendon was once more insisted on as a check upon the capricious or unfair use of the ordeal. The Charter of 1216 repeated this provision without alteration. In 1217, however, a change occurred, which was undoubtedly a consequence of the virtual abolition of the ordeal by the Lateran Council in 1215. The framers of Henry’s second reissue, no longer so engrossed in pressing matters of state as they had been in the previous year, found leisure to adjust points of administrative detail. The simple reference to ordeal was inappropriate now that new forms of trial were taking its place. The justices, indeed, scarcely knew what test they should appoint, when ordeal had been forbidden. They seem sometimes to have resorted to compurgation and sometimes to battle; but the sworn verdict of neighbours was fast occupying the ground left vacant. The new Charter then made it clear that the provisions applied in 1215 to ordeal were to be extended to the other tests which were now being substituted for it. The “_ad legem_” of John’s Charter became in the new version “_ad legem manifestam nec ad juramentum_,” which might very well include battle and the decisions of jurors, as well as ordeal.[788]

Footnote 788:

See Thayer, _Evidence_, 37, n. for a case of 1291, where “_ad legem manifestam_” can only mean trial by combat. The Statute of Westminster I. (3 Edward I. c. 12) described men refusing to put themselves on a jury’s verdict, “_come ceaus qui refusent la commune ley de la terre_.”

II. _Medieval Interpretations of the Passage._ Ignorance of the exact nature of the abuse prohibited may well be excused at the present day, since it had become obscure within a century of the granting of the Charter. Some legal notes of the early fourteenth century, containing three alternative suggestions, have come down to us.[789]

Footnote 789:

These appear as an appendix to the Year Book of 32-3 Edward I. (p. 516); but the handwriting is supposed to be of the reign of Edward II.

(1) The first interpretation discussed, and apparently dismissed, in these notes, was that Magna Carta by this prohibition wished to ensure that no one should serve on a jury (_in juratam_) unless he had been warned by a timely summons. This far-fetched suggestion is clearly erroneous.

(2) The next hypothesis raised is that the clause prevented the defendant on a writ of debt (or any similar writ) from winning his case by his unsupported oath, where compurgators ought to have sworn along with him. Exception was, in this view, taken to the bailiff treating favoured _defendants_ in civil pleas with unfair leniency.

(3) A third opinion is stated and eulogized as a better one, namely that the Charter prohibited bailiffs from showing undue favour to _plaintiffs_ in civil pleas. The defendant on a writ of debt (or the like) should not, in this interpretation of Magna Carta, be compelled to go to proof at all (that is, to make his “law”) unless the plaintiff had brought “suit” against him (that is, had raised a presumption that the claim was good, by production of preliminary witnesses or by some recognized equivalent).[790] This last of the three interpretations thus suggested in the reign of Edward II. has its modern adherents, as will immediately be shown; but the discussion inaugurated in Plantagenet days has not yet received an authoritative settlement. It was discussed in the Court of Common Pleas so recently as 1700,[791] and historians at the present day differ as widely as do the lawyers.

Footnote 790:

Cf. _supra_, pp. 101-2. The necessity for such “suit” was not legally abolished until 1852 (by Statute 15 and 16 Victoria, c. 76, s. 55). In 1343 it had been decided that the “suit” must be in existence, but need not be produced in court; and that if they did appear they could not be examined. See Thayer, _Evidence_, 13–15.

Footnote 791:

See City of London _v._ Wood, cited _infra_.

III. _Modern Interpretations of the Passage._ No two of the recent authorities hold precisely similar opinions. Four views, at least, may be distinguished. (1) The provision is sometimes regarded as an attempt to prevent plaintiffs in civil suits from being treated with undue favour to the prejudice of defendants. A “suit” of witnesses (_sectatores_) had to be produced in court by the plaintiff before any “trial” (_lex_) could take place at all. Bailiffs were forbidden to allow, through slackness, favour, or bribery, this rule to be relaxed. This interpretation, which was adopted by the author of the _Mirror of Justices_, and by the writer of the notes appended to the Year Book already cited, found favour with Chief Justice Holt in 1700.[792]

Footnote 792:

See City of London _v._ Wood (12 Modern Reports, 669). Holt held the clause of Magna Carta to mean that the plaintiff, unless he had his witnesses, could not put a defendant to his oath. Pollock and Maitland, II. 604, seem to concur, to the extent at least of counting this as one of the abuses condemned by c. 38: “The rule which required a suit of witnesses had been regarded as a valuable rule; in 1215 the barons demanded that no exception to it should be allowed in favour of royal officers.”

(2) A second theory treats the clause as forbidding bailiffs (whether royal officers or manorial stewards) to use their authority to forward suits to which they happened to be parties. In certain circumstances, it would seem, the steward who presided as his master’s representative over the manorial court claimed the right to put a defendant to his proof, without first producing “suit” or its equivalent, a privilege, however, which he could exercise only once in every year. Royal bailiffs claimed this privilege, and that without any similar restrictions. One object of Magna Carta, in this view, was to reduce bailiffs to an equality with other litigants. No longer should their bare assertion enable them to dispense with the formalities which the court required from ordinary plaintiffs before putting their adversaries to the risk of “a law” or proof.[793]

Footnote 793:

This reading is emphasized by Brunner, _Entstehung der Schwurgerichte_, 199-200.

(3) In marked contrast to these two theories, which read Magna Carta as preventing undue favour to plaintiffs, comes a third which regards it as forbidding undue favour to defendants. The Crown, it is pointed out, favoured Jews against Christians with whom they went to law. The Hebrew defendant in a civil suit “might purge himself by his bare oath on the Pentateuch, whereas in a similar case a Christian, as the law then stood, might be required to wage his law twelve-handed—_i.e._ with eleven compurgators.”[794] Magna Carta, it has been suggested, struck at this preferential treatment of Jewish litigants, trebly hated as aliens, capitalists, and rejectors of Christ. If so, the attempt failed; for in 1275 a certain Hebrew, named Abraham, was allowed “to make his law single-handed on his Book of the Jewish Law” in face of the plaintiff’s protest that this was contrary to the custom of the realm.[795]

Footnote 794:

See J. M. Rigg’s admirable preface to Sel. _Pleas from Rolls of Jewish Exchequer_, p. xii., and cf. _supra_, c. 10.

Footnote 795:

See _Ibid._, p. 89, where the case is cited.

(4) A fourth theory reads the chapter as a prohibition of undue severity in criminal prosecutions. A formal indictment by the accusing jury must always precede the “trial.” No bailiff ought to put anyone to the water or the red-hot iron upon suspicion, or private information.[796] Much may be said for this interpretation so far as it goes; but the Assize of Clarendon and Magna Carta agree in demanding something more. It was not enough that indictment should precede ordeal; they required that some members of the presenting jury who had made the accusation at the first diet should accompany the sheriff before the justices at the final diet, there to bear testimony both as to the nature of the crime and as to the fact of the indictment. Before anyone could be put “to his law,” the sheriff’s verbal report must be corroborated by the testimony of representative jurors.

Footnote 796:

This reading is supported by Pollock and Maitland, I. 130, n. There is no necessary inconsistency between the view here cited, and that already cited from _Ibid._ II. 604. The same clause of Magna Carta may have been aimed at irregularities of two kinds, in civil and criminal pleas respectively.