Part 5 — MAGNA CARTA. (continued 4)

CHAPTER TWENTY-SEVEN.

Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum parentum et amicorum suorum, per visum ecclesie distribuantur, salvis unicuique debitis que defunctus ei debebat.

If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under the supervision of the church, saving to every one the debts which the deceased owed to him.

Here the Great Charter proceeds to remedy an evil connected with intestate succession, a natural sequel to the subject of testate succession. John was made to promise that he would not seize, as forfeit to his exchequer, the chattels of men who had neglected to make a will. In the Middle Ages all classes of men, good and bad alike, exhibited an extreme horror of dying intestate.^[673] Several causes contributed towards this frame of mind. Churchmen, from motives not unmixed, diligently inculcated the belief that a dying man’s duty was to leave part at least of his personal estate (the only property over which the law allowed him powers of disposal) for religious and charitable objects. The bishop or priest, who had power to give or withhold extreme unction to 383the sinner who had confessed his sins, was in a peculiarly strong position to enforce his advice upon men who believed the Church to hold the keys of heaven. Thus, every man on his death-bed had powerful motives for making his will in such form as the Church approved. Motives of a more worldly kind urged him in the same direction. If he died intestate, a scramble for his personal effects would undoubtedly result. Many powerful claimants were ready to compete. In Glanvill’s day, for example,^[674] every feudal lord claimed the goods of his intestate vassals. Such demands were difficult to defeat, although Bracton, at a later date^[675] declared them to be illegal, at least in cases of sudden death. Then, the kinsmen—rich and poor relations—had certain rights never very clearly defined. The Church, too, stood ready, with claims judiciously vague, which might be expanded as occasion required. It arrogated, at the very lowest, the right to distribute the dead man’s chattels for the good of his soul, and there are instances when a strong-minded bishop or abbot insisted on such a distribution, although the deceased had died unrepentant, leaving no will.^[676]

Prelates allowed themselves liberal discretion in regard to "the dead’s part" over which they thus assumed control. Something might go to the poor, but much would naturally be spent on masses for the departed soul, while a portion might openly be retained as a recompense for trouble expended in this pious cause. The king was another competitor for the goods of those who left no will; and attempts were made at various times to treat intestacy, more especially in the case of clerks, as a cause of forfeiture.^[677] For our present purpose it is 384unnecessary to discuss whether this claim was founded on the royal prerogative or on the rights of the king in his capacity either as overlord or as patron of vacant sees.^[678]

This chapter of Magna Carta was directed against all such pretensions of the Crown or its officials. Whoever else might get these windfalls, King John must not compete. So much is clear; some sort of compromise was, further, made between the two most likely claimants. Magna Carta provided for a friendly co-operation between the deceased’s kinsmen and the Church in distributing the residue of the intestate’s personal estate, after satisfying all preferential claims of creditors, wives, and children. This chapter, although afterwards struck out of all reissues of the Charter, seems to have been observed in practice.^[679] Apparently, however, the right of the kinsfolk to share the control with the Church gradually receded into the background, while the Courts Christian assumed complete 385authority in all cases of intestacy; so much so, that churchmen had frequently to be reminded that they were only the dead man’s administrators, and not entitled to appropriate the goods to their own uses.

It is easy to understand the motives which, in 1216, led those responsible for the government of the young Henry III. to withdraw this provision of Magna Carta. The Crown had then need of all the money it could get, and so long as the uncertainty of the law allowed a scramble to take place for the goods of intestates, the king could not be asked to stand aside with his hands tied by a clause of Magna Carta. He would take his chance with the other claimants. It was the Church, however, and not the Crown, which finally secured the prize.^[680]

CHAPTER TWENTY-EIGHT.

Nullus constabularius, vel alius ballivus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios, aut respectum inde habere possit de voluntate venditoris.

386

No constable or other bailiff of ours shall take corn or other provisions from any one without immediately tendering money therefor, unless he can have postponementpostponement thereof by permission of the seller.

This chapter is the first of several which redressed abuses springing from one root, namely, the exercise of the royal right of purveyance by the various agents of the local government.

I. Purveyance in General. The Norman and Angevin kings of England were compelled by their administrative duties and induced by the pleasures of the chase to move their courts constantly from district to district. During these royal progresses the difficulties must have been great of finding sufficient food for the enormous retinues surrounding the king in times of peace, and for his armed levies in time of war. It was to the interests of the community as a whole that the work of government and of national defence should not be brought to a stand-still for want of supplies. No opposition was made when the king arrogated to himself the privilege of appropriating, under fair conditions, such necessaries as his household might require. Such a right, not unlike that enjoyed in modern times by the commander of an army encamped in an enemy’s country, was allowed to the kings of England in their own land in times of peace, and was known as the prerogative of purveyance.^[681] Unfortunately, the conditions under which supplies might be requisitioned were left vague: the privilege was therefore subject to constant abuse. In theory it was always spoken of as merely a right of pre-emption; the provisions seized were to be paid for at the market rate: but practice tended to differ lamentably from theory. In the absence of a neutral arbitrator to fix the value of the goods, the unfortunate seller was often thankful to accept any pittance offered by royal 387officials, who might subsequently indeed charge a higher rate against the Crown. Payment was often indefinitely delayed or made not in coin but in exchequer tallies, “a vexatious anticipation of taxation,” since these could only be used in payment of Crown dues. What was worse, in the hurry of the moment, the king’s purveyors often omitted the formality of paying altogether.

Magna Carta did not abolish purveyance, and placed no restrictions whatever upon its use for the legitimate and original purpose of supplying the king’s household. Some slight attempt to control its exercise was made sixty years later in the Statute of Westminster I.; but without producing much effect.^[682] The grievances connected with purveyance continued throughout four centuries as a fertile source of vexation to the people and of friction between parliament and the king. An attempt, made by the House of Commons to induce James I. to surrender this prerogative for a suitable money grant, ended in failure, with the abandonment of the abortive treaty known as “the Great Contract.” In the general re-settlement of the revenue, however, at the Restoration, purveyance and pre-emption, which had fallen into disuse during the Commonwealth, were abolished.^[683] Yet in the following year a new statute^[684] virtually revived one branch of the right under essential modifications: when royal progresses were necessary in the future, warrants might be issued from the Board of Green Cloth, authorizing the king to use such carts and carriages as he might require, at a fair rate of hire specified in the Act of Parliament.

II. Branches of Purveyance restricted by Magna Carta. A practice tolerated in spite of its burdensome nature because of its absolute necessity, when confined to its original purpose of providing for the needs of the king’s household, became intolerable when claimed by every castle-warden, sheriff, and local bailiff for his own personal or official needs. The annoyance and hardships inseparable from such 388arbitrary interference with the rights of private property were thus increased tenfold, while ample discretionary authority was vested in a class of officials least qualified to use it, unscrupulous foreign adventurers hired by John to intimidate the native population, responsible to no one save the king, and careful never to issue from their strongholds except at the head of their reckless soldiery. The Great Charter contained a few moderate provisions for checking the abuses of purveyance as an instrument of local administration.

(1) The provisioning of castles. Commanders of fortresses were left perfectly free by Magna Carta to help themselves to such corn and other supplies as they deemed necessary for their garrisons. Immediate payment, however, must be made in current coin (not in exchequer tallies) for everything they requisitioned, unless the owner, on whom a compulsory sale was forced, consented to postpone the date of payment. The Charter of 1216 made a slight modification in favour of castellans. Payment for goods taken from inhabitants of the town where the castle was situated might be legally delayed for three weeks, a term extended in 1217 to forty days. Such relaxation was perhaps necessary to meet the case of a warden with an empty purse called on to provide against an unexpected siege or other emergency; but the peaceful townsmen, over whose dwellings the dark walls of a feudal stronghold loomed, would not prove creditors who pressed unduly for payment. Under Henry’s Charters, as under that of John, immediate payment had to be tendered to owners of goods who lived elsewhere than in this neighbouring town.^[685]

(2) The requisitioning of horses and carts. The provisions of chapter 30, modified in subsequent re-issues, 389sought to prohibit sheriffs from exacting compulsory cartage from the property of freemen.

(3) The appropriation of timber. The succeeding chapter confined the king and his officers to the use of such wood as they could obtain from the royal demesnes.^[686]

III. Branches of Purveyance not mentioned in Magna Carta. A wide field was left alike for the use and the abuse of this prerogative, after due effect had been given to these moderate provisions. In addition to the constant friction kept up through many centuries by its employment as a means of supplying the wants of the king’s household, two minor aspects of purveyance came into special prominence in later history.

(1) The requisition of forced labour. Hallam points out that the king’s rights of pre-emption over such goods as he required were extended, by analogy, to his subjects’ labour. "Thus Edward III. announces to all sheriffs that William of Walsingham had a commission to collect as many painters as might suffice for ‘our works in St. Stephen’s chapel, Westminster, to be at our wages as long as shall be necessary’; and to arrest and keep in prison all who should refuse or be refractory; and enjoins them to lend their assistance. Windsor Castle owes its massive magnificence to labourers impressed from every part of the kingdom. There is even a commission from Edward IV. to take as many workmen in gold as were wanted, and employ them at the king’s cost upon the trappings of himself and his household."^[687] Perhaps, however, such demands did not form a branch of purveyance at all, but were merely instances of illegal royal encroachments.

(2) Billeting of soldiers in private houses. This practice, which may be considered a branch of purveyance, has always been peculiarly abhorrent to public opinion in England. It is as old as the reign of John; for when that king visited York in 1201 he complained bitterly that the citizens neither came out to meet him nor provided for the 390wants of his crossbow-men. His threats and demands for hostages were with difficulty turned aside by a money payment of £100.^[688] Charles I. made an oppressive use of this branch of what seems to have been once a perfectly legal prerogative, punishing householders who opposed his unpopular measures by quartering his dissolute soldiery upon them, a practice branded as illegal by the Petition of Right in 1628.^[689]

CHAPTER TWENTY-NINE.

Nullus constabularius distringat aliquem militem ad dandum denarios pro custodia castri, si facere voluerit custodiam illam in propria persona sua, vel per alium probum hominem, si ipse eam facere non possit propter racionabilem causam; et si nos duxerimus vel miserimus eum in exercitum, erit quietus de custodia, secundum quantitatem temporis quo per nos fuerit in exercitu.

No constable shall compel any knight to give money in lieu of castle-guard, when he is willing to perform it in his own person, or (if he himself cannot do it from any reasonable cause) then by another responsible man. Further, if we have led or sent him upon military service, he shall be relieved from guard in proportion to the time during which he has been on service because of us.

Castle-guard, or the liability to serve in the garrison of a royal fortress, formed part of the feudal obligations of the owners of certain freehold estates. This service was sometimes due in lieu of attendance in the army; more usually the tenant who owed garrison duty owed knight’s service as well.^[690] 391It was probably this duplication of duties that prevented castle-guard from hardening into a separate tenure.^[691] The right to enforce these obligations was naturally entrusted to the constables of the various castles whose duty it was to keep their garrisons at their full strength. John, however, preferred to commute personal service of castle-guard for money payments (analogous to the scutage paid in lieu of knight’s service), and to man his feudal towers with soldiers of fortune rather than with rebellious Englishmen. Castellans were, therefore, in the habit of demanding money even from those who offered personal service. What was worse, when the freeholder had followed John on distant service, he was mulcted in a money payment because he had not stayed at home to perform garrison duty during the same period. Both forms of this abuse were absolutely forbidden in 1215. In certain circumstances, however, this prohibition would have deprived the king of what was equitably due to him. Suppose he had granted two fiefs to the same tenant—one by simple knight’s service, the other by castle-ward. A double holding implied double service; the tenant could not in fairness plead that the service of one knight rendered abroad operated as the full discharge of the services of two knights due from his two separate fiefs. Castle-guard must in such a case be performed by an efficient deputy, or else the usual compensation be paid. The reissue of 1217 amended John’s Charter to this effect. Service with the army abroad operated as a discharge of castle-guard at home, but not where the tenant owed two services for two distinct fiefs.^[692]

392

CHAPTER THIRTY.

Nullus vicecomes, vel ballivus noster, vel aliquis alius, capiat equos vel carectas alicujus liberi hominis pro cariagio faciendo, nisi de voluntate ipsius liberi hominis.

No sheriff or bailiff of ours, or any other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman.

The Charter here returned to the subject of purveyance, one branch of which it practically abolished, except as affecting villeins. No carts or horses belonging to a freeman were to be requisitioned by any sheriff or bailiff for the use of the Crown without the owner’s consent; that is to say, they could not be requisitioned at all. The clause, however, was carefully limited to freemen; the inference is plain, that the horses and implements of villeins were left at the disposal of the Crown without leave asked or price paid for their use. The relative chapter of the reissue of 1216 practically restored this branch of purveyance; consent of the owner, even when a freeman, need not be obtained, provided hire was paid at the rates sanctioned by ancient custom. Those rates, however, were definitely stated, namely, 10d. per diem for a cart with two horses, and 1s. 2d. for one with three.^[693] Thus the prerogative, though restored, was not to be abused.

In 1217 it was again slightly restricted in favour of the upper classes. No demesne cart of any “parson” (ecclesiastica persona), or knight, or lady, could be requisitioned by the bailiffs. The “demesne” carts were, of course, those 393that belonged to the owner of the manor as opposed to the carts of the villeins. Here again we have evidence of care to make it clear, if not that villeins were to have no part or parcel in the benefits of the great Charter, at least that their rights, if they had any, could not stand against the more important rights of the Crown. Yeomen and small freeholders were also left exposed to this annoying form of interference. Abuses continued. Purveyors would occasionally lay hands on all available horses and carts in the countryside—far more than they required—choosing perhaps the season of harvest or some equally busy time. The owners, who urgently required them for their own purposes, would pay ransom money to regain possession. Edward I. enacted that perpetrators of such deeds should be “grievously punished by the marshals,” if they were members of his household, and therefore amenable to the summary jurisdiction of his domestic tribunal, or, if not members, then they should pay treble damages and suffer imprisonment for forty days.^[694]

CHAPTER THIRTY-ONE.

Nec nos nec ballivi nostri capiemus alienum boscum ad castra, vel alia agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit.

Neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood.

Purveyance of timber growing elsewhere than on royal estates is here prohibited in absolute terms. In marked contrast with the limited restrictions placed upon other 394branches of purveyance, this branch is taken away, not merely from local officials, but from the king himself.^[695] There was an obvious reason for greater stringency in this case: the king’s own extensive demesne woods furnished timber in abundance, whether for building purposes or for firewood, leaving him no excuse for taking, especially if for nothing, the trees of other people.

The purveyors of James I., shortly after his accession, transgressed this provision of Magna Carta by requisitioning timber for repairing the fortifications of Calais. A decision against the Crown was given by the Barons of Exchequer in the second year of James’s reign, and a proclamation was issued, bearing date 23rd April, 1607, disclaiming any right to such a prerogative. The guilty purveyors were brought before the Star Chamber.^[696]

CHAPTER THIRTY-TWO.

Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terre dominis feodorum.

We will not retain beyond one year and one day, the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs.

I. The Crown’s Claim to the Property of Felons. The Crown had gradually established certain rights, not too clearly defined, in the property of all criminals formally 395indicted and sentenced for felony. John, here as elsewhere, took full advantage of the vagueness of the law to stretch prerogative to its utmost limit. Magna Carta, therefore, attempted to define the exact boundaries of his rights. The old customary law seems invariably to have given the chattels of a condemned man to the owner of the court which tried him, and the desire for such perquisites must have created an unfortunate bias against the accused. It was not possible, however, to adopt so simple a rule with regard to the real estate of felons, for this was claimed as escheat by the feudal lord from whom the lands were held. Custom gave the land of a felon to his feudal lord, and his chattels to the lord who tried him. The Crown gradually encroached on the rights of both, claiming the real estate of felons, as against mesne lords, and their personal estate, as against the lords who had jurisdiction.

(1) The felon’s lands. No difficulty arose when Crown tenants were convicted, since there the king was lord of the fief as well as lord paramount, and claimed the whole lands as escheat. When the condemned man was the tenant of a mesne lord, however, a conflict of interests occurred, and here a distinction, which gradually became hard and fast, was drawn between treason and felony.^[697] Treason was an offence against the person of the sovereign, and it was probably on this ground that the king made good his claim to seize as forfeit the entire estate, real and personal, of every one condemned to a traitor’s death. With regard to ordinary felons, what looks like a compromise was arrived at. The king secured the right to lay waste the lands in question and to appropriate everything he could find there during the space of a year and a day; after which period he was bound to hand over the freehold thus devastated to the lord who claimed the escheat. Such was the custom during the reign of Henry II. as described by Glanvill, who makes it perfectly clear 396that before the lands were given up at the expiration of the year, the houses were thrown down and the trees rooted up, thus purging away the taint of crime and enriching the exchequer with the price of the timber and building materials.^[698] The exercise of this right of waste inflicted upon the lord of the escheat an amount of damage out of all proportion to the benefit it brought to the king. The lord, when at last he entered into possession of the escheated lands, found a desert, not a prosperous manor.^[699]

Coke has attempted to give a more restricted explanation of the Crown’s rights in this respect, maintaining that the “year and day” was not an addition to, but a substitute for, the earlier right of “waste,” that the king renounced his barbarous claims in return for the undisputed enjoyment of the ordinary produce for one year only, and agreed, in return for this, to hand over the land with all buildings and appurtenances intact.^[700] The authorities he cites, however, are inconclusive, and the weight of evidence on the other side leaves little room for doubt. Not only does the phrase “year day and waste” commonly used, create a strong presumption; but Glanvill’s words in speaking of the earlier practice are quite free from ambiguity, while the document known as the Praerogativa Regis is equally explicit for a period long after Magna Carta.^[701] Waste, indeed, was a question of degree, and the Crown was not likely to be scrupulous in regard to felons’ lands, when it allowed wanton destruction even of Crown fiefs held in 397honourable wardship.^[702] A year was by no means too long for a thorough exercise of the right of waste.

Wide as were the legal rights of the Crown, John extended them illegally. When his officers had once obtained a footing in the felon’s land, they refused to surrender it to the rightful lord after the year and day had expired. In 1205, Thomas de Aula paid 40 marks and a palfrey to get what he ought to have had for nothing, namely the lands escheated to him through his tenant’s felony.^[703] Magna Carta prohibited such abuses for the future; prompt evacuation must henceforth take place when the year was over; and this settled the law for centuries.^[704] The Crown long exercised its rights, thus limited, and Henry III. sometimes sold his “year day and waste,” for considerable sums. Thus, in 1229 Geoffrey of Pomeroy was debited with 20 marks for the Crown’s rights in the lands of William de Streete and for his corn and chattels. This sum was afterwards discharged, however, on the ground that the king, induced to change his mind, doubtless by a higher bid, had bestowed these rights on another.^[705]

(2) The felon’s chattels. From an early date the king enjoyed, like other owners of courts, the right to the goods of the offenders he condemned. When Henry II. reorganized the entire system of criminal justice, and formulated, in the Assizes of Clarendon and Northampton, a 398scheme whereby all grave offenders should be formally indicted, and thereafter reserved for the coming of his own justices, he established what was practically a royal monopoly of jurisdiction over felons; and this logically implied a monopoly over their chattels as well—an inference confirmed by the express terms of article five of the earlier Assize. As the list of “pleas of the Crown,” which is in this connection identical with the list of “felonies,” grew longer, so this branch of royal revenue increased proportionately at the expense of the private owners of “courts leet.” Even in the ten years between the criminal codes of 1166 and 1176, two new offences were added to the list, forgery and arson. The goods of all outlaws and fugitives from justice likewise fell to the exchequer—the sheriff who seized them being responsible for their appraised value.^[706]

The magnates in 1215 made no attempt to interfere with this branch of administration, tacitly acquiescing in Henry II.’s encroachments on their ancestors’ criminal jurisdictions and perquisites. Under Henry III. and Edward I. the forfeited goods of felons continued to form a valuable source of revenue. In 1290 the widow of a man who had committed suicide, and therefore incurred forfeit as a felo de se, bought in his goods and chattels for £300, a high price, in addition to which the Crown specially reserved its “year day and waste.”^[707]

II. Indictment, Conviction, and Attainder. The Crown could not appropriate the property of men merely suspected of crime, however strong might be the presumption of guilt. Mere accusation was not enough; a formal judgment was required. The Charter refers to the lands of a “convicted” offender, and conviction must be distinguished from indictment on the one hand, and from attainder on the other; since these formed three stages in the procedure for determining guilt.

(1) Indictment. It has already been shown^[708] how Henry of Anjou tried to substitute, wherever possible, indictment 399by a jury for private appeal in criminal suits. The Assize of Clarendon authorized such indictments to be taken before sheriffs, and we learn from Bracton that immediately the formal accusation had been made the sheriff became responsible for the safety of the accused man’s property, both real and personal. With the help of the coroners and of lawful men of the neighbourhood he must have the chattels appraised and inventoried, and hold them in suspense until the “trial,” providing therefrom in the interval “estovers,” that is, sufficient sustenance for the accused and his family.^[709]

If the prisoner was acquitted or died before conviction, then the lands and chattels were restored to him or to his relatives, the Crown taking nothing. Reginald of Cornhill, sheriff of Kent, was discharged in 1201 from liability for the appraised value of the goods of a man who, after indictment for the burning of a house, had died in gaol non convictus. As the Pipe Roll clearly states, his chattels did not pertain to the king.^[710]

(2) Conviction. If the sheriff presided over all preliminary procedure connected with indictment, only the justices could “try” the plea, that is, give sentence according to success or failure in the test appointed for the accused man to perform.^[711] Prior to 1215 the usual test, in accordance with the Assize of Clarendon, was the ordeal of water in the ordinary case, or of the red-hot iron in the case of men of high rank, or of women. If the suspected man failed, sentence was a mere formality; he had “convicted” himself of the felony. As a consequence of the condemnation of ordeal by the Lateran Council of 1215, the verdict of guilty pronounced by what was virtually a petty jury, became the normal “test” which branded an offender as convictus. This was long looked on as an innovation, and accordingly the law refused to compel the accused, against his will, to trust his fate to this new form of trial. He might refuse to “put himself 400upon his country,” and by thus “standing mute,” as the phrase was, make his own “conviction” impossible, saving himself from punishment and depriving the king of his chattels and “year and day.” For centuries those responsible shrank from the obvious course of treating silence as equivalent to a plea of guilty; but while liberty to refuse to submit to a jury’s verdict was theoretically recognized, barbarous measures were in reality adopted to compel consent. The Statute of Westminster in 1275^[712] directed that all who refused should be imprisoned en le prison forte et dure. The object seems to have been to ensure that obstinate offenders should not escape altogether unpunished, although they saved their property by avoiding a technical conviction. This statutory authority for strict confinement, however, was very liberally interpreted by the agents of the Crown, who treated it as a legal warrant for revolting cruelties, aimed at compelling the stubborn to put themselves upon a jury. Food and drink were virtually denied to them, a little mouldy bread and a mouthful of impure water only being allowed them upon alternate days; and at a later date the prisoner was slowly crushed to death under great weights “as heavy, yea heavier than he can bear.” Brave men, guilty, or mayhap innocent, but suspicious of a corrupt jury, preferred thus to die in torments, that they might save to their wives and children the property which would upon conviction have fallen to the Crown. The fiction was carefully maintained that the victim of such barbarous treatment was not subjected to “torture,” always illegal at common law, but merely to peine forte et dure, a perfectly legal method of persuasion under the Statute of 1275. This procedure was not abolished until 1772; then only was an accused man for the first time deprived of his right to "have his law"—his claim to ordeal as the old method of proving his innocence. Until that date then, a jury’s verdict was treated as though it were still a new-fangled and unwarranted form of “test” usurping the place of 401the ordeal, although the latter had been virtually abolished early in the thirteenth century.^[713]

(3) Attainder. Coke in commenting on this passage draws a further distinction between “conviction” which resulted immediately either from a confession or from a verdict of guilty, and “attainder” which required in addition a formal sentence by the judge. In his age, apparently, it was the sentence of attaint which implied the forfeiture; looking as usual at Magna Carta through seventeenth-century glasses, he seems surprised to find “convicted” used where he would have written “attainted.” Yet this distinction, if recognized at all in 1215, must have been quite immaterial then. It was under the Tudor sovereigns that the doctrine of the penal effects of attainder was fully elaborated. When sentence was passed on a felon, a blight as it were fell immediately upon him: his blood was henceforth in the eye of the law impure, and his kindred could inherit nothing that was his or that came through him. No one could be treated as a blood relation of one whose entire blood was tainted; and the Crown naturally reaped the profit.^[714]

A series of statutes of the nineteenth century modified the harshness with which this rule bore on the felon’s innocent relations;^[715] and finally the Forfeiture Act of 1870^[716] abolished “corruption of blood” and deprived the Crown completely of all interest in the estates of felons, alike in escheats and in chattels. Thus the word “attainted” has become practically obsolete, and the distinction insisted on by Coke has ceased to have any importance in modern law. A criminal who is fulfilling the term of his sentence is known, not as a man attainted, but simply as a “convict,” the same word as was used in Magna Carta.

402

CHAPTER THIRTY-THREE.

Omnes kydelli de cetero deponantur penitus de Tamisia, et de Medewaye, et per totam Angliam, nisi per costeram maris.

All kydells for the future shall be removed altogether from Thames and Medway, and throughout all England, except upon the sea coast.

The object of this provision is open to no reasonable grounds of doubt; it was intended to remove from rivers all obstacles likely to interfere with navigation. The full importance of such a measure can only be understood when the deplorable condition of the few roads which existed in the Middle Ages is kept in view. The water-ways were the great avenues of commerce; when these were blocked, the townsmen and traders suffered loss, while those who depended on them for their necessaries, comforts, and luxuries, shared in the general inconvenience. Magna Carta intervened in the interests of all classes, and demanded the immediate removal of obstructions which interrupted inland traffic. Only one class of impediments indeed was mentioned, “kydells” (or fish-weirs), not because of the purposes to which these were put, but because they were the form of obstruction which called for repressive measures at the moment. This word, whatever narrower technical meaning it may have borne in later days, seems to have been used by the framers of Magna Carta in a wide general sense, as applying to all fixed and bulky contrivances or “engines” intended to catch fish, and likely to interfere with the free passage of boats.^[717]

403It has been gratuitously assumed that the motive for prohibiting these “kydells” must have been of a similar kind to the motive for constructing them; and that therefore the object of the present chapter was to prevent the Crown or others from acquiring a monopoly of rights of fishing to the exclusion of the public. Law courts and writers on jurisprudence for many centuries uniformly endorsed this mistaken view, and treated Magna Carta as an absolute prohibition of the creation of “several” (or exclusive) fisheries in tidal waters.^[718] Although this legal doctrine has been frequently and authoritatively enunciated, it rests undoubtedly on a historical misconception. The Great Charter sought to protect freedom of navigation, not freedom of fishing; and this is obvious from the last words of the chapter: kydells are to be removed from Thames and Medway and throughout all England “except upon the sea-coast.” It would have been a manifest absurdity to allow the creation of monopolies of taking fish in the open seas, while insisting on perfect freedom of fishing in rivers, the banks of which were private property. The sense is quite clear: no objection was taken to “kydells,” whatever they might be, so long as they did not interfere with navigation.

The erroneous view, however, had much to excuse it, and acquired plausibility from the circumstance that the destruction of obstacles to the free passage of boats incidentally secured also free passage for salmon and other migratory fish; and that later statutes, when legislative motives had become more complicated, were sometimes passed with both of these objects in view. The change is well illustrated by a comparison of the words of two statutes of 1350 and of 1472 respectively. The first of these repeats the substance of this chapter of Magna Carta, and thus explains its object:—“Whereas the common passage of boats and ships 404in the great rivers of England be oftentimes annoyed by the inhancing of gorces, mills, weirs, stanks, stakes, and kydells.”^[719] Here there is no allusion to fish or rights of fishing. The later act, while confirming, under penalties, previous statutes for the suppression of weirs, not only states its own intention as twofold, namely, to protect navigation of rivers, and “also in safeguard of all the fry of fish spawned within the same,” but retrospectively and unwarrantably attributes a like double motive to Magna Carta.^[720]

So far as the Thames and Medway were concerned, this provision contained nothing new. To the Londoners, indeed, the keeping open of their river for trade was a matter of vital importance. The right to destroy all kydelli in the Thames and Medway had been purchased from Richard I. for 1500 marks, and a further sum had been paid to John to have this confirmed. The charter of Richard I. is dated 14th July, 1197; and that of John, 17th June, 1199. Each king declared, in words practically identical, that Hubert Walter, Archbishop of Canterbury, and others had pointed out “that great detriment and discommodity hath grown to our said city of London, and also to the said realm by occasion of the said kydells.” Accordingly each charter declared that the king has “granted and steadfastly commanded that all kydells that are in the Thames be removed wheresoever they shall be within the Thames; also we have quit-claimed all that which the Warden of our Tower of London was wont yearly to receive from the said kydells. Wherefore we will and steadfastly command that no warden of the said Tower, at any time hereafter, shall exact anything of any one, neither molest nor burden nor make any demand of any person by reason of the said kydells.” John’s charter of 1199 went further than that of Richard, making it clear that the prohibition referred to the Medway as well as to the Thames, 405and granting the right to inflict a penalty of £10 upon anyone infringing its provisions.^[721]

Magna Carta merely confirmed, and extended to all rivers, a prohibition already secured by the Londoners specially for their own river. The provision was repeated in the reissues of Henry III. The citizens, however, did not rest content with a clause in a general enactment, but purchased for 5000 marks three new charters exclusively in their own favour. One of these, dealing with kydells in Thames and Medway, was issued by Henry on 18th February, 1227, in terms almost identical with those of Richard and John.^[722]

CHAPTER THIRTY-FOUR.

Breve quod vocatur Precipe de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam.

The writ which is called praecipe shall not for the future be issued to anyone, concerning any tenement whereby a freeman may lose his court.

406In extorting from John a solemn promise to restrict the use of the particular writ here referred to, the barons gained something of infinitely greater value than a petty reform of court procedure; they committed their enemy to a complete reversal of a line of policy vigorously and consistently pursued for at least half a century. The process by which the jurisdiction of the king’s courts was steadily undermining that of the feudal courts was now to be suddenly arrested. Magna Carta by this apparently inoffensive clause was grappling in reality with an urgent political problem of the day, fraught with tremendous practical issues alike for king and barons. This can only be understood in connection with the technical details on which it hinges.

I. Royal Writs and the Feudal Jurisdictions. The class of writs, called from their initial word “Writs praecipe,” was a large one, and freely used by the Crown for issuing peremptory orders of various kinds to its officers and others. This provision of Magna Carta had special reference to one type of these writs only, the so-called praecipe quod reddat.^[723] These were intended to inaugurate, before the king’s justices, pleas for determining the ownership of property either by battle or by grand assize—preferably the latter. They were called “Writs of Right,” because they treated of questions of title, not merely questions of possession.

The form of a praecipe quod reddat, as actually issued from the Chancery of Henry II. (who invented it), is given by Glanvill, and its terms illustrate the insidious methods by which the Crown encroached on feudal jurisdictions.^[724] 407The writ was directed to the sheriff, and began bluntly:—“Command” (praecipe) A. “to give back” (quod reddat) to B. a piece of ground there specified, or alternatively, “to explain why he had not done so” (ostensurus quare non fecerit). The real object does not, however, appear upon the surface. It was by no means intended that the man to whom the command was issued, should abandon his claim without discussion. He would naturally take the alternative allowed him, namely, appear before the king’s justices and there “show cause” why he had not obeyed the order, by proving (if he could) a better title to the property in dispute than that alleged by the rival claimant. The writ, which on the surface reads merely as a summary and final command to hand over the estate to another, is really an “original writ” commencing a litigation in the king’s court. One important effect of its issue was that all proceedings instituted in inferior tribunals must immediately stop.

The feudal lord, in whose court baron the plea would naturally have been decided, was thus robbed by the king of his jurisdiction. With it, he lost also authority over his tenants, and numerous fees and perquisites. The writ praecipe was thus mainly an ingenious device for “evoking” a particular cause from the manorial court to the king’s court.^[725]

Henry II., in inventing or systematizing the legal procedure known as “the writ process,” because its leading feature was that it forbade any action to be begun without a royal writ, had two objects in view. While reforming by its instrumentality the entire administration of justice in England, the king hoped by the same means, to destroy gradually the feudal privileges of his magnates. He intended, step by step, to draw into his own courts all pleas relating to land. Questions of property were to be tried before his justices, by combat or, at the defendant’s option, by the grand assize; questions of possession (without any option) by the appropriate petty assize. The barons showed no desire to dispute 408the Crown’s assumption of a monopoly over the petty assizes; indeed they cordially acquiesced in this by the terms of chapter 18 of the Charter. The grand assize was another matter; they refused to be robbed of their right to determine, in their own courts baron, proprietary actions between their own tenants. Indeed, for such wholesale extension of the king’s jurisdiction over pleas of land, Henry II. had absolutely no precedent. He had made the Crown strong and then used its power for his own aggrandizement. The king’s courts had increased their authority, as a distinguished American historian has expressed it, “by direct usurpation, in derogation of the rights of the popular courts and manorial franchises, upon the sole authority of the king.”^[726]

Now, the chief instrument devised by Henry for effecting such usurpations was precisely this particular form of the writ praecipe (or Writ of Right).^[727] Tenants whose titles were challenged gladly purchased such writs, as the only way to escape trial by combat; and John frequently issued them to the prejudice of feudal lords, 409whose jurisdiction was thus curtailed. The barons in 1215 considered this a grievance; and Magna Carta in demanding its redress deliberately attempted to arrest the process of royal usurpation. The tide must be turned back; the system of feudal justice, now fast becoming obsolete, must in its entirety be revived. Each freeman or baron must be left without competition as the sole source of justice to his own tenants in all pleas of land, unmolested by these new-fangled writs of right. It was not intended, of course, to abolish completely the extensive and useful class of writs praecipe; but merely to prevent the Crown using them as an engine of encroachment upon manorial jurisdictions.^[728] The king might keep his own court and issue writs to his own tenants; but let him respect the courts of others. For the future, such writs must not be issued “concerning any tenement whereby a freeman may lose his court.” Writs praecipe might be freely used for any other purpose, but not for this. This one purpose, however, was exactly what had specially recommended it to the great king who had invented it.

The present chapter must, therefore, be regarded as containing one of the most reactionary provisions of the entire Charter. The barons had, at last, succeeded in compelling John to promise a complete reversal of a central part of the deliberate policy of his father.

Here, then, under the guise of a small change in legal procedure, was concealed a notable triumph of feudalism over the centralizing policy of the monarchy—a backward step, which, if given full effect to, might have ushered in a second era of feudal turbulence such as had disgraced the reign of Stephen. We are told on high authority that John’s acknowledgment of "the claims of the feudal lord to hold a court which shall enjoy an exclusive competence in proprietary actions"—was one which “Henry II. would 410hardly have been forced into.”^[729] That may well be; but John had already more than once rejected this proposal with violence. In 1215, he could no longer strive against the inevitable, and agreed under compulsion to provisions which he had no intention to keep. The concession, although insincere, was nevertheless an important one. The substance of chapter 34 was repeated with some trivial verbal alterations in all future issues of Magna Carta.^[730]

II. Influence of this Provision on later Legal Development. One important question still remains: Was this provision observed in practice? The answer is partly Yes, but chiefly No. Its letter was stringently enforced; but its spirit was evaded. (1) The Chancery, in obedience to Magna Carta, ceased to issue this particular form of writ in such a manner as to cause a freeman “to lose his court.” It was still issued to Crown tenants; but strictly denied to all under-tenants, who were thus left to find redress at the feudal court of the magnate from whom they held their land.^[731] The measure thus forced on the Crown in the selfish interests of the baronage inflicted hardship on tenants of 411mesne lords, in whose faces the doors of the king’s tribunals, opened to them by Henry II., were once more closed in all pleas touching their freeholds. In such cases the court baron of their lord was now their only source of justice, and in that court they could not get the benefit of the improved methods of royal procedure. In particular, the grand assize was a royal monopoly. The magnates, indeed, desired to adopt it, but this was rendered difficult by an obstacle which the Crown made the most of.^[732] They had difficulty in getting together twelve knights willing to act as jurors; and they could not force them to give a sworn verdict against their will. The king might compel; but a mesne lord could only persuade. Men of the required status objected to the waste of time, and dreaded the danger of being punished for false verdicts, inseparable from the duty of serving on a grand assize. Whatever hopes the barons may have entertained of overcoming such difficulties were disappointed. In 1259 the Provisions of Westminster declared that freeholders should not be compelled to swear against their will "since no one can make them do this without the King’s warrant."^[733] It was the deliberate policy of Edward I. to exaggerate all such difficulties, putting every obstacle in the way of private courts, until he reduced their jurisdictions to sinecures.^[734]

412(2) While the letter of Magna Carta was strictly kept, its spirit was evaded. It was impossible to give loyal effect to an enactment which went directly counter to the whole stream of progress. Manorial justice was falling fast into disrepute and abeyance, while royal justice was becoming more efficient and more popular, and was soon to rid itself of all competitors and obtain a monopoly. Under-tenants, deprived of access to the king’s court by the direct road of the writ praecipe, sought other and more tortuous modes of entrance. Legal fictions were devised. The great problem was how to evade Magna Carta without openly infringing it. The king’s justices and would-be litigants in the king’s courts formed a tacit alliance for this end, but had to proceed by slow and wary steps, in the teeth of bitter opposition from the powerful owners of seignorial courts. The process adopted consisted of a series of formal changes in the technical procedure of the king’s courts. Its key lies in the ingenious original (or originating) writs invented by Crown lawyers, which really effected one thing while professing to effect something quite different. These new writs were known as writs of entry and came half-way between writs of right (or writs praecipe) and the petty assizes; half-way between writs commencing actions dealing with title (and therefore attacked by chapter 34 of Magna Carta) and writs dealing with possession (and therefore welcomed by chapter 18). Writs of entry were thus, from the point of view of the magnate with his private court, wolves in sheep’s clothing. They professed to determine a question of possession, but really decided a question of ownership. At first the pleas to which they could be applied were few and special. Steadily new forms of action were devised to cover almost every conceivable case. The process of evolution was a long one, commencing soon after 1215, and virtually concluding with chapter 29 of the Statute of Marlborough, or rather with the liberal construction which Crown lawyers placed upon that statute in the following reign.

Edward I., at the height of his power, and eager to set his 413house in order, shrank from an open breach of the Great Charter, gladly adopting subtle expedients to cheat mesne lords out of the rights secured to them by the present chapter. In Edward’s reign, then, the legal machinery invented for this purpose was brought to perfection, so that thereafter no action relating to freehold was ever again tried in the courts baron of the magnates. All such pleas were, in direct violation of the spirit of Magna Carta, decided in the courts of the king.^[735]

The claimant, then, had no need to infringe the prohibition against the writ praecipe when he could obtain another writ, equally effective, under a different name. A writ of entry was, indeed, to a peaceable plaintiff, infinitely preferable to a writ praecipe, which could only be issued to one prepared to offer battle, the option of accepting lying with his adversary. Crown tenants, even, who could obtain the writ praecipe, came to prefer the more modern substitute; and clause 34 of Magna Carta was thereafter virtually obsolete.

One of the indirect effects of the clause was of a most unfortunate nature. The necessity it created for effecting reforms by a tortuous path did great and lasting harm to the form of English law. Legal fictions have indeed their uses, by evading technical rules of law in the interests of substantial justice. The price paid for this relief, however, is usually a heavy one. Complicated procedures and underhand expedients have to be invented, and these lead in turn to new legal technicalities of a more irrational nature than the old ones. It would have been better in the interests of scientific jurisprudence if so desirable a result could have been effected in a more straightforward manner. The authors of Magna Carta must bear the blame.^[736]

414

CHAPTER THIRTY-FIVE.

Una mensura vini sit per totum regnum nostrum, et una mensura cervisie, et una mensura bladi, scilicet quarterium Londonie, et una latitudo pannorum tinctorum et russetorum et halbergectorum, scilicet due ulne infra listas; de ponderibus autem sit ut de mensuris.

Let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of corn, to wit, “the London quarter”; and one width of cloth (whether dyed, or russet, or halberget), to wit, two ells within the selvedges; of weights also let it be as of measures.

This chapter re-enacted an important ordinance of Richard I., usually known as the Assize of Measures, but sometimes as the Assize of Cloth. That ordinance, the exact date of which is 20th November, 1197, was, according to modern conceptions of the proper sphere of government, partly commendable and partly ill-advised. It showed, on the one hand, a praiseworthy desire to set up definite standards of weights and measures, uniform throughout all parts of England. It strove thus to overcome the serious inconvenience experienced by traders, who met with varying standards as they moved with their wares from place to place. What was of more importance, the assize sought to obviate also the frauds frequently perpetrated upon buyers by unscrupulous merchants under the shelter of ambiguous weights and measures. The London quarter must, therefore be used everywhere for corn; and one measure for wine or beer. So far good. On the other hand, the ordinance of Richard went much further than modern ideas of laissez faire would tolerate. In particular, legitimate freedom of trade was interfered with by the 415cloth regulations reported by Roger of Hoveden.^[737] No cloth, he tells us, was to be woven except of a uniform width, namely, “two ells within the lists.”^[738]

Dyed cloths, it was provided, should be of equal quality through and through, as well in the middle as at the outside. Merchants were prohibited from darkening their windows by hanging up, to quote the quaint language of the ordinance, “cloth whether red or black, or shields (scuta) so as to deceive the sight of buyers seeking to choose good cloth.” Coloured cloth was only to be sold in cities or important boroughs. Here we have, apparently, a sumptuary law meant to ensure that the lower classes went in modest grey attire. Six lawful men were to be assigned to keep the Assize in each county and each important borough. These custodians of measures must see that no goods were bought or sold except according to the standards; imprison those found guilty of using other measures, whether by their own admission or by failure in the ordeal (confessus vel convictus); and seize the chattels of defaulters for the king’s behoof. If the custodes performed their duties negligently they were to suffer amercement of their chattels.^[739] Richard’s Assize of Measures was supplemented in 1199 by John’s Assize of Wine, which tried to regulate the price of wines of various qualities,^[740] an attempt not repeated in Magna Carta.

The same author who gives us the text of the ordinance of 1197 tells us also that its terms were found to be too stringent, and had to be frequently relaxed in practice.^[741] 416This was done in 1201. The king’s justices, we are told, wished to seize the cloth of certain merchants on the ground that it was less than the legal width. They compromised, however, by accepting a great sum of money “to the use of the king and to the damage of many.” Thus Hoveden denounces what he regards as an unlawful bargain between the justices and the traders for injuring buyers by evading the strict letter of the ordinance.

Many examples of evasion may be found in the Pipe Rolls both before and after Magna Carta. The justices, indeed, were usually more bent on collecting fines for its breach than on enforcing the Assize. In 1203 two merchants of Worksop were amerced each in half a mark for selling wine contrary to the Assize, while the custodians of measures of the borough were also mulcted in one mark for performing their duty negligently—an exact illustration of the words of the ordinance.^[742] In the same year a fine of one mark was imposed on certain merchants “for stretching cloth,” in order, presumably, to bring it to the legal width.^[743] Merchants frequently paid heavy fines to escape the ordinance altogether.^[744]

When the barons in 1215 insisted upon John enforcing his brother’s ordinance in all its rigour, they took a step in their own interests as buyers, and against the interests of the trade guilds as sellers. Although this provision was repeated in all subsequent charters, it seems never to have produced much effect. The difficulty of enforcing such provisions in their strictness was great, and evasion continued. One example may suffice. In the second year of Henry III.^[745] the citizens of London paid 40 marks that they might not be questioned for selling cloth less than two yards in width. Here is an illustration of the practice of 417the judges to which Hoveden had objected, and which Magna Carta had apparently failed to put down. Sometimes, however, the provisions of Richard’s Assize of Measures and of John’s Assize of Wine were still enforced. In 1219 a Lincolnshire parson, with a liberal conception of the scope of his parochial duties, had to pay 40s. for wine sold extra Assisam.^[746] Parsons, apparently, might engage in trade, but only if they conformed to the usual regulations.

CHAPTER THIRTY-SIX.

Nichil detur vel capiatur de cetero pro brevi inquisicionis de vita vel membris, sed gratis concedatur et non negetur.

Nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied.

This chapter has an important bearing upon trial by combat, and none at all upon habeas corpus, to which it is often supposed to be closely related. The particular writ upon which such emphasis is here laid had been invented by Henry II. to obviate the judicial duel in certain cases, by allowing the accused man virtually to refer the question of his guilt or innocence to the sworn verdict of his neighbours.

I. Trial by Combat prior to the Reign of John. The crucial moment in judicial proceedings during the Middle Ages arrived, as has already been explained,^[747] when the “test” or “trial” (lex) appointed by the court was attempted by one or both of the litigants. The particular form of proof to which the warlike Norman barons were attached was the duellum, and it was only natural that such of the old Anglo-Saxon aristocracy as associated with them 418on terms of equality should adopt their prejudices. Hence “combat” became the normal mode of deciding all serious disputes among the upper classes. Even from the first, however, it seems not to have been competent for property of less than 10s. in value,^[748] and it soon came to be specially reserved for two classes of disputes—civil pleas instituted by writ of right, and criminal pleas following on “appeal.” The present chapter is concerned with the latter only.

An “appeal” in this connection was entirely different from the modern appeal from a lower to a higher court. It was a formal accusation of treason or felony made by a private individual on his own initiative, and was usually followed by judicial combat between the appellant and appellee, each of whom fought in person. Such a right was necessary in an age when the government had not yet assumed a general responsibility for bringing ordinary criminals to justice, or was at least so lax and spasmodic in performing that function as to leave many wrongdoers unpunished. Appeal followed by battle was probably in its origin a form of legal procedure substituted for the older blood-feud.^[749] Those who had suffered wrong would be more readily dissuaded from their vendetta if they were allowed instead the right of judicial duel under fair conditions laid down by the court. The Norman trial by combat was thus a survival from an earlier stage of society when the wronged person, not the magistrate, had been the avenger of crime; and this explains several peculiarities—why, for example, when the accused had uttered “that hateful word craven,”^[750] thus confessing himself vanquished and deserving a perjurer’s fate, the victorious accuser was entitled to his vengeance, even in the face of a royal pardon. When Henry of Essex, constable and standard-bearer of Henry II., accused by his enemy, Robert de Montfort, in 1163, had been worsted in the combat, the royal favour could not shield him, though apparently the king’s connivance enabled him, by renouncing his possessions 419and becoming a monk, and therefore dead in law, to escape actual death by hanging.^[751] It would seem that at an early date the whole procedure had resembled even more closely a legalized private revenge, since the appellant who had vanquished his foe was allowed personally to put him to death. "The ancient usage was, so late as Henry IV.’s time, that all the relations of the slain should drag the appellee to the place of execution."^[752]

The evils of trial by combat are obvious. From the first it was dreaded and avoided by the traders of the boroughs, who paid heavily for charters of exemption. Their aversion spread to the higher classes, and was shared by Henry II. To that great statesman, endowed with the ardent instincts of a reformer, despising utterly all obsolete and irrational modes of procedure, and quite devoid of reverence for tradition, trial by combat was entirely abhorrent. He would gladly have abolished it out and out if he had dared; but he prudently followed the more subtle policy of slowly undermining its vitality. For this purpose he used four expedients, which are of great interest in respect that they throw light on the process by which trial by jury superseded trial by battle.^[753] (1) Every facility was afforded the parties to a civil suit who were willing to forego the duellum voluntarily. Henry placed at their disposal, as a substitute, a procedure which had by his ancestors been specially reserved for the service of the Crown. Litigants might refer their rival claims to the oath of a picked body of local neighbours: the old recognitors thus developed into the jurata. This course was possible, however, only where both parties consented, and it had many features in common with a modern arbitration. (2) In pleas relating to the title and possession of land Henry went further, granting to the defendant the option of a peaceful settlement even when the claimant preferred battle. The men to whose oaths such cases were referred were known as an assisa, not a jurata, since both 420litigants had not consented. The three various groups of assizes welcomed by the barons in chapter 18 have already been discussed. The assisa, like the jurata, could be applied only to civil pleas. (3) Attempts were made to discourage trial by combat in criminal pleas also by discouraging the exercise of the right of private “appeal,” its natural prelude. The corporate voice of the accusing jury was made as far as possible to supersede the individual complaint of the injured party offering battle. Only the near blood relation, or the liege lord, of a murdered man was allowed to prove the offender’s guilt by combat; while a woman’s right of appeal was kept within narrow limits.^[754] (4) A wide field was still left for private appeal and battle; but Henry endeavoured to narrow it by a subtle device. In appeals of homicide, where the accusation was not made bona fide, but maliciously or without probable cause, the appellee was afforded a means of escaping the duellum. He might apply for the writ which forms the subject of this chapter.

II. The Writ of Life and Limb. The writ here referred to, better known to medieval England as the writ de odio et atia,^[755] was intended to protect from duel men unjustly appealed of homicide. Rash or malicious accusations might be raised by turbulent knights, who made fighting their pastime, in order to gratify a grudge against traders or other men of peace, and many an appealed man was glad to purchase from the king permission to escape by assuming the habit and tonsure of a monk;^[756] but Henry desired to 421save innocent men from the risk of failure in the duellum without this subterfuge. If the accused asserted that his appellant acted “out of spite and hate” (de odio et atia), he might purchase from the royal chancery a writ known by that name, which referred the preliminary plea thus raised to the verdict of a sworn body of twelve recognitors drawn from his own locality. If his neighbours upheld the plea all further proceedings on the appeal were quashed: the duellum was avoided.^[757] A similar privilege was afterwards extended to all those guilty of homicide in self-defence, or of homicide by misadventure, not of deliberate murder.^[758] Soon every man appealed of murder, whether guilty or not, alleged as a matter of course that he had been accused groundlessly and maliciously, mere “words of common form.” This expansion of the writ’s sphere of usefulness was accompanied by another change. The main issue of guilt or innocence, not merely the preliminary pleas, came to be determined by the neighbours’ verdict,^[759] which, whether for or against the accused, was treated as final. No further proceedings were necessary: none were allowed. The duellum had at last been successfully elbowed aside, although it was not abolished until 1819.^[760]

III. Subsidiary Uses of the Writ. This inquest of life and limb, devised as a means of substituting a sworn verdict for the duellum in cases of homicide, has often been claimed as the direct antecedent of, if not as identical with, the procedure which in the seventeenth century became so valuable a bulwark of the subject’s liberty, under the name of habeas corpus. This is a mistake; the modern writ of habeas corpus was developed out of an entirely different writ, which had 422for its original object the safe-keeping of the prisoner’s body in gaol, not his liberation from unjust confinement.^[761]

The opinion generally though erroneously held, is not without excuse; for the writ mentioned by Magna Carta, besides effecting its main purpose, was put to another and subsidiary use, which bears a superficial resemblance to that served by the habeas corpus of later centuries. Considerable delay might occur between the appellee’s petition for the writ of inquisition and the verdict upon it. In the interval, the man accused of murder had, in the normal case, no right to be released on bail, a privilege allowed to those suspected of less grave crimes. This was hard in cases where the accused was the victim of malice, or guilty only of justifiable homicide. Prisoners, placed in such a plight, might purchase from the Crown, always ready to accept fees in a worthy cause, royal writs which would save them from languishing for months or years in gaol. The writ best suited for this purpose was that de odio et atia, since it was already applicable to presumably innocent appellees for another purpose.^[762]

As trial by combat became rapidly obsolete, the original purpose of the writ was forgotten, and its once subsidiary object became more prominent. Before Bracton’s day (possibly even before the date of Magna Carta) this change had taken place: the writ had come to be viewed primarily as an expedient for releasing upon bail homicides per infortunium or se defendendo. Bracton, in giving the form of the writ,^[763] declares it to be iniquitous that innocent men accused of homicide should be long detained in prison; therefore, he tells us, an inquisition is wont to be made at the request of sorrowful friends—whether the accusation is bona fide or has been brought de odio et atia. This pleasing picture of a king moved to pity by the tearful friends of 423accused men scarcely applies to John, who listened only to suitors with long purses which they were ready to empty into his exchequer. The writs which liberated homicides had become a valuable source of revenue. Sheriffs were frequently reprimanded for releasing prisoners on bail without the king’s warrant, but, in spite of heavy amercements, they continued their irregularities, either through favour to individuals or in return for bribes. Thus, in 1207, Peter of Scudimore paid to the exchequer a fine of 10 marks for setting homicides free upon pledges, without warrant from the king or his justices.^[764] In that year, John repeated his orders, strictly forbidding manslayers to be set free upon bail, unless by royal command, until they had received judgment in presence of the king’s justices.^[765]

To John, then, the excessive and arbitrary fees to be received for this writ, constituted its greatest merit; whereas the barons claimed, as mere matter of justice, that it should be issued free of charge to all who needed it. John’s acceptance of their demands, contained in the present chapter, was repeated in all reissues, and apparently observed in practice. The procedure during the reign of Henry III. is described by Bracton in a passage already cited. After the writ de odio had been received, an inquest, he tells us, must be held speedily, and if the jury decided that the accusation had been made maliciously, or that the slaying had been committed in self-defence or by accident, the Crown was to be informed of this. Thereafter, from the chancery would be issued a second writ, the form of which is also given by Bracton (known in later days as the writ tradias in ballium) directing the sheriff, on the accused finding twelve good sureties of the county, to “deliver him in bail to those twelve” till the arrival of the justices. Such writs, however, if in one sense “freely” issued, had always to be paid for. A certain Reginald, son of Adam, when accused in 1222, offered one mark to the 424king for a verdict of the three neighbouring counties (it was a Lincolnshire plea), as to whether the accusation was made because of “the ill-will and hate” (per odium et atiam) which William de Ros, appellant’s lord, bore to Reginald’s father “vel per verum appellum.”^[766]

A long series of later statutes enforced or modified this procedure. These have been interpreted to imply frequent changes of policy, sometimes abolishing and sometimes reintroducing the writ and the procedure which followed it.^[767] This is a mistake; the various statutes wrought no radical change, but merely modified points of detail; sometimes seeking to prevent the release of the guilty on bail, and sometimes removing difficulties from the path of the innocent. The Statute of Westminster, I., for example, after a preamble which animadverted on the manner in which sheriffs impannelled juries favourable to the accused, provided that inquests “shall be taken by lawful men chosen out by oath (of whom two at the least shall be knights) which by no affinity with the prisoners nor otherwise are to be suspected.”^[768] The Statute of Gloucester, on the other hand, ordered the strict confinement, pending trial, of offenders whose guilt was apparent.^[769] The Statute of Westminster, II. once more favoured prisoners, providing by chapter 12 for the punishment of false appellants or accusers, and by chapter 29 that “lest the parties appealed or indicted be kept long in prison, they shall have a writ of odio et atia, like as it is declared in Magna Carta and other Statutes.”^[770]

The writ in question was in use in the year 1314,^[771] 425and seems never to have been expressly abolished, but to have sunk gradually into neglect, as appeals became obsolete and commissions of gaol delivery were more frequently held.

IV. Later History of Appeal and Battle. The right of private accusation was restricted only, not abolished, by Henry II. and his successors. It could not be denied to any injured man, who was not suspected of abusing his right. Prosecutions in the king’s name by way of indictment and jury trial supplemented, without superseding, private prosecutions by way of appeal and battle. The danger of a second prosecution might hang over the head of an accused man after he had “stood his trial” and been honourably acquitted. ItIt was unfair that he should be kept in such suspense for ever; and, accordingly, the Statute of Gloucester provided that the right of appeal should lapse unless exercised within year and day of the commission of the offence.^[772] To ensure that the accused should escape all risk of a double prosecution for the same crime, it was necessary that the Crown should supplement the provisions of this act by delaying to prosecute until the year and day had expired. This rule was followed in 1482. Such immunity from arraignment at the king’s suit for the space of twelve months (combined with the provisions of the Statute of Gloucester) would undoubtedly have obviated the possibility of two trials for one offence; but it produced 426a worse evil of a different kind, by facilitating the escape of criminals from justice. After experience of its pernicious effects, this rule was condemned by the act of parliament which instituted the Star Chamber.^[773]

This remedied the more recent evil, but revived the old injustice; the same statute enacted that acquittal should not bar the right of appeal of the wife or nearest heir of a murdered man. Thus, once again, a man declared innocent by a jury might find himself still exposed to a second prosecution. This unjust anomaly remained without formal redress until the nineteenth century; and in 1817 the British public was startled to find that a long-forgotten legal procedure of the dark ages still formed part of the law of England. The body of a Warwickshire girl, Mary Ashford, was discovered in a pit of water under circumstances which suggested foul play. Suspicion fell on Abraham Thornton, who had been in her company on the night when she disappeared. After indictment and trial at Warwick Assizes on a charge of rape and murder, he was acquitted. The girl’s eldest brother, William Ashford, was not satisfied by what was apparently a perfectly honest verdict. He tried to secure a second trial, and with this object claimed the ancient right of appeal of felony, which the judges did not see their way to refuse. Ashford’s attempt to revive this obsolete procedure was met by Thornton’s revival of its equally obsolete counterpart. Summoned before the judges of King’s Bench, he offered to defend himself by combat, throwing down as “wager of battle” a glove of approved antique pattern. The judges had to admit his legal right to defend himself against the appeal “by his body,” and Thornton thus successfully foiled the attempt to force him to a second trial, as the court never contemplated the possibility of a medieval judicial combat being actually fought in the nineteenth 427century. The appeal was withdrawn and the proceedings terminated.^[774]

The unexpected revival of these legal curiosities of an earlier age led to their final suppression. In 1819 a Statute was passed abolishing proof by battle alike in criminal and in civil pleas; and the right of appeal fell with it.^[775]

CHAPTER THIRTY-SEVEN.

Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium, et de alio terram teneat per servicium militare, nos non habebimus custodiam heredis nec terre sue que est de feodo alterius, occasione illius feodifirme, vel sokagii, vel burgagii; nec habebimus custodiam illius feodifirme, vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servicium militare. Nos non habebimus custodiam heredis vel terre alicujus, quam tenet de alio per servicium militare, occasione alicujus parve serjanterie quam tenet de nobis per servicium reddendi nobis cultellos, vel sagittas, vel hujusmodi.

If anyone holds of us by fee-farm, by socage, or by burgage, and holds also land of another lord by knight’s service, we will not (by reason of that fee-farm, socage, or burgage,) have the wardship of the heir, or of such land of his as is of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight’s service. We will not by reason of any petty serjeanty which anyone may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir or of the land which he holds of another lord by knight’s service.

By these provisions the Charter reverts once more to the subject of wardship, laying down three rules which will be 428better understood when their sequence is somewhat altered, the second being taken first.

(1) Ordinary wardship. The reason for claiming wardship from lands held in chivalry, namely, that a boy tenant could not perform military service, did not apply to fee-farm, to socage, or to burgage. There was much looseness of usage, however; and of this John took full advantage. The Charter stated the law explicitly; wardship was not due from any such holdings, except in the somewhat anomalous cases where lands in fee-farm expressly owed military service.^[776] As petty serjeanties (although mentioned in the present chapter in a different connection) are not expressly said to share this exemption, it may be inferred that the barons admitted John’s wardship over them, just as in the case of great serjeanties. In Littleton’s time, the law had been changed. Petty serjeanties were then exempt.^[777]

(2) Prerogative wardship. When a tenant-in-chivalry died leaving two separate military fiefs held of different mesne lords, each of these lords enjoyed, during the minority, wardship over his own fief. This was perfectly fair to all parties; but if the ward held one estate of the Crown, and another of a mesne lord, the king claimed wardship over both; and that, too, even when the Crown fief was of small value.^[778] Such rights were known as “prerogative wardship,” and thus limited, were in 1215 perfectly legal, however inequitable they may now seem.

(a) Fee-farm, socage, and burgage. John, however, pushed this right further, and exercised prerogative wardship over fiefs of mesne lords, not merely by occasion of Crown fiefs held in chivalry, but also by occasion of Crown fiefs held by any other free tenure. It was outrageous thus to claim prerogative wardship in respect of fee-farm, 429socage, or burgage lands, which were themselves exempt from ordinary wardship. John accordingly was made to promise amendment.^[779]

(b) Petty Serjeanties^[780] were in a slightly different position. Although Magna Carta did not abolish the Crown’s rights of ordinary wardship over these, it forbade that that should form an occasion of prerogative wardship. The king might enjoy the custody of his own fief if he pleased, but not of the wider fiefs of others on that pretext.^[781]

Prerogative wardship (even in the limited form admitted by Magna Carta) might involve a double hardship on the mesne lord deprived by it of the custody of his fief. Suppose that the common tenant held lands from a mesne lord on condition of, say, five knights’ service, in addition to his Crown fief. The king seized both fiefs on his death, nominally as a compensation for the loss of military service, which the minor heir could not render. Yet when a scutage ran the king demanded from the mesne lord payments in proportion to his full quota without allowing for the fees of five knights taken from him by prerogative 430wardship. This is no imaginary case. The barons in 1258 complained of the practice and demanded redress.^[782]

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 431will 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.

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]

432The 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]

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 433to 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]

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]

(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 434was 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.

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]

(2) A second theory treats the clause as forbidding bailiffs (whether royal officers or manorial stewards) to use 435their 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]

(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]

(4) A fourth theory reads the chapter as a prohibition of undue severity in criminal prosecutions. A formal 436indictment 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.

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.

437This 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 438before judgment. Three aspects of this prohibition may be emphasized.

(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.

(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 439differ 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.

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 44010th 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]

(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 441which 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]

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]