menu_book Chapter 6

Section 6 of Magna Carta Commemoration Essays. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Patrick Martin. Magna Carta, Clause 39.

Nullus Liber, Homo, etc. By Sir P. Vinagradoff. FBA, LLD, DCL. By a curious coincidence. The year 1915 has been marked, among other striking events, by a revival of the controversy between arbitrary power and the rule of law,

which, in the midst of heterogeneous particulars, formed the substance of the struggle of 1215. The discussion in the course of the elaboration of the Defense of the Realm Act and its amendment has led to extreme pronouncements. On the one hand, Lord Parmore appealed to the principle of safeguarding the freedom and right of individuals, as expressed in the Great Charter and guaranteed by trial by jury. Lord Newton, on the other hand, took this occasion to pronounce in favor of a discretionary procedure

untrammeled by lawyers, and declared that sensible persons in this country were not in the least worried about Magna Carta at this moment. We may not follow the details of this curious passage of arms and of the correspondence called forth by it, and may confine ourselves to the remark that if Lord Parmore was not strictly exact in tracing trial by jury to Magna Carta, Lord Newton seems to have somewhat rashly discarded

the inheritance of legality of which English citizens have been so proud for ages. Turning to the historical problem fringed by these modern polemics, one may say that the predominant strain in the analysis of the Great Charter by modern scholars may be characterized as a skeptical reaction against the great constitutional claims made for Magna Carta since the days of Koch. The note is sounded in a terse page of the history of English law,

and Messieurs McKechnie, J.H. Round, E. Jenks, L.O. Pike, and others have followed on the same lines with great effect. They've taken pains to prove that the barons who forced the charter on John Lackland were guided by class interests, and aimed at reaction and anarchy rather than at legality and progress. The feudal framework of their scheme is sufficiently clear, and has been described very fully by G.B. Adams. There can be no doubt also that Koch, Blackstone, and Thompson

were guilty of many anachronisms in their attempts to trace legal conceptions of a later age into these futile beginnings, and that even Stubbs rather exaggerated the sentimental and institutional importance of the principles embodied in Magna Carta. Yet there is room for doubt whether the general effect of the modern criticism to which the text of the Great Charter was subjected, has been altogether conducive to the proper treatment of the subject. Granted that

the Charter has been prompted by the selfish considerations of the Barons, and bears in every line the impress of their special aims, it remains to be explained why it obtained such a hold on national life, why it was re-enacted and re-manipulated in the course of several generations, why it became the watchword of English legalism, why it was accepted and developed by those very royal judges against who's encroachment, its provisions were to a large extent directed.

We cannot wonder. Magna Carta was partially eclipsed by the arbitrary rule of the Tudors, but right through the Middle Ages and in the 17th century again, it was considered as the principal enactment of English law. And this fundamental fact deserves as much consideration from historians as the feudal environment of the Runnymede Agreement. Clause 39, which I've selected for particular examination stands, as it were, in the center of the Magna Carta controversy,

and is well adapted for an illustration of its characteristic features. So much learning and ingenuity has been expended on the interpretation of this text that I can dismiss in a few words a number of more or less important points, which seem to me have been definitely settled by scholars. It would be superfluous to refute Koch's view as to the meaning of necabemus necmetemus superaum, nor is it necessary to dwell at length on the meaning of outlawry, decisin, or destruction.

It is quite clear that the famous veil between judici emparium and legimterii was employed in a conjunctive, and not in a disjunctive sense. But several points remain worth discussion, even when we have taken careful stock of the results achieved by the interpreters. The nullus liber homo itself deserves a few words.

The meaning attached to the term by the baronial party at Runnymede restricted the scope of the term to that of libera tenens, and it was further emphasized and developed in the confirmation of 1217 and in later issues. Such an interpretation, far from being self-evident in the beginning of the 13th century, cuts right through the difficulties arising out of two firmly established views, namely, against the frequent combination of free birth with unfree tenure,

of which the simplest case is presented by the freemen holding in villainage, and against the doctrine all men worthy of war and white, if not providing the security of free tenement, were to join the Frank Pledge, Plegium Liberale, and had to attend the public court twice a year at the sheriff's view.

This arrangement was merely the expression of the fact that in criminal and police matters, the villain was on the level of the free. As the narrow conception of freedom aimed at in the Barons' Charter did not square with important doctrines well-established in early common law, the interpretation given to nullus liber homo by the judges was bound to take a different course from that intended by the originators of the document. It's been argued that the Barons did not intend to bestow any of the guarantees of Clause 39 on people who did not belong to their order,

that is, who were not tenants-in-chief. If such was their intention, it was not adequately expressed. Because the class of liberi hominis, even in the strictest legal sense, embraced all the free tenants. The Vavasors, Sockmen, and Franklins, as well as the Barons.

The fact that Clause 34 applied only to Barons holding courts of their own did not militate in the slightest degree against such an interpretation. Clause 34 merely said that when free men had courts, they were not to be deprived of their privileges. Free men who had no courts were not concerned in Clause 34 at all.

But as soon as the line was drawn so low as to include all those who could prove their freedom, say by the action de libertate provanda, it became impossible to insist even on the restricted meaning of free tenants. This being so, possible cases of infringement of personal liberty, of illegal imprisonment, come very much to the fore.

And the differentiation between the protection of the person, corpus, and of property and privileges, tenementum consuetidines, is carried out in later issues of the Charter. Again, when this personal acceptation of the term liber homo has obtained a firm footing, the transition from the feudal notion of liberty to the civic one becomes a matter of substitution. The fall of the stone into the lake calls forth automatically wider

and wider circles on the surface. That this is no mere speculation of ours may be proved by textual evidence. In a statute of 1350, issued after the Black Death, it was expressly provided that nul home de quel estat o condicion il suite shall be imprisoned or deceased in infringement of the Great Charter, and this elaborate formula was evidently meant to remove all doubts as to the general application of the rule. In an earlier instance, namely in a statute of 1331,

the term used is simply home, but it stands in the place of liber homo. And the omission of the qualifying epithet is not likely to have been accidental. The wording of such clauses was the result of very careful consideration, and the change in terminology has to be taken into account at least as much in this case as the insertion of the words about free tenements and franchises

in the earlier confirmations of the Charter. It may be noted in this connection that the defense of a person refusing to release a prisoner on bail in an action de homene replagiando was not that the prisoner was a villain, but that the prisoner was the villain of the Lord who had imprisoned him. I should like now to examine a second point, the expression per legum terrae, which forms the conclusion of our clause. I entirely agree with Professor C.B. Adams that the only sense in which these words can be construed is that of an assertion of legality. Lex terrae means law of the land.

It is amplified in some of the confirmations by the expression legale judicium. And both, in conjunction, would point to legality in procedure as well as substance. Of course, lex is used sometimes in the technical meaning of compurgation, but such a technical acceptance would square badly with the accompanying expression, perjudicium parium.

What is more important, the general meaning of law of the land is conclusively established by two texts directly connected to the history of the Runnymede transaction. The patent of 10 May 1215, by which King John wished to conciliate the moderate among his enemies, and the papal letter, in which Innocent Three exhorted the barons to cease their opposition to the king. No reasonable canon of interpretation could warrant a separate treatment of Legum Regni Nostri et Judicium Parium, of John's Patent, or the Per Pares Vestros Segundum Consuetidines et Legis Regni, of Innocence Bull, from the Per Judicium Parium Suerum Velper Legum Terai, of Magnum Carta.

The terms of the three documents are identical in substance and significant in their technical differentiation under two heads. At the same time, the slight variation of phraseology enable us to supplement to some extent the barrenness of the central statement in Magna Carta, Clause 39.

Regnum nostrum appears in the letter of 10 May as a welcome gloss to Terai, but the reference to legacet consuetudines regni is even more explicit. It shows conclusively that a contemporary potentate, thoroughly conversant in the subject and dispute, and fully able to express his thoughts in a definite manner, understood the lex terrae in the broad and ordinary sense of the laws and customs of the realm.

It would be inadvisable for us to dissent from this authoritative interpretation. The struggle was waged to secure trial in properly constituted courts of justice, and in accordance with established law. The latter requirement would apply equally to substantive rules as far as they existed, and to procedure.

It was, in fact, a declaration in favor of legality all around. Here again, as in the case of the free man, the formulation was elastic enough to stand carrying over from class justice of feudal lords to the common law of the growing commonwealth. The mention of a properly constituted tribunal, however,

discloses in a curious way a certain opposition between the views of the barons and those of the royalists, as expressed by king and pope. While the baronial documents merely speak of a judgment by peers, the royal and the papal pronouncements state that such a judgment should be given in the king's court, in curia mea. The omission of these words in the text of the charter is hardly accidental.

One of the objects of this curtailment may have been the wish to extend the application of the clause relating to peers to the courts of the barons themselves, on the principle indicated by Clause 60. But there is yet another connection, which the barons had an interest in avoiding a direct mention of Curia Regis. They wanted to make clear that they would not recognize as legal judgments not delivered by the peers of the accused. In this, they followed the feudal doctrine.

Compare Conrad's II edict and King David's formula, which had emphatically asserted, e.g. in 1208 by William of Browse, Now, as such an unadulterated feudal doctrine stood a view according to which the administration of justice was the outcome of royal power, and not a feudal contract. From this point of view, Pierre de Rocher in 1233 contested the very existence of Pears in England. But there was also an intermediate position favored by the judges of the king's court. According to this compromise, the Curia was not only a body with attributions

delegated to it by the king, but also a meeting of the king's vassals, and it exercised its functions in virtue of the collective power of the assessors. In this sense, the justices derived their office not only from the sovereign, but also from the circle of peers. Indeed, both in France and in England, the Court of Peers was regarded as one section

of the High Court of Parliament, which, in itself, was enlarged curia regis. One more step was required to reach the conclusion that the professional judges of the court might be taken to serve as a substitute for the cumbersome process of judgment by the full court. This step was not only actually made in both England and in France, but it was justified in both cases on similar grounds. I have in view the introductory sentence of Bracton's treatise on the connection of the

single judge with the full court of magnets, and the chapter of Beaumanois' Coutumes de Boisis, on the jurisdiction of the baili. In both cases, stress is laid on the subordinate character of a decision given by a single judge. His action is important for practical reasons because it would be useless to overburden the full court with trials which develop on ordinary lines, and can be easily settled by reference to well-known rules. In all doubtful cases, however, the single judge ought to

revert to the fountainhead of his authority, that is, to the curia. The expressions used by Bracton are exceedingly characteristic. It is as a member of the aristocracy and not as a learned delegate of royal justice that the judge is made to appear. By the magna curia may be meant either a sitting of the full court of regis or the high court of parliament, a body of rather uncertain composition in the 13th century. A characteristic complement to the jurisdiction of parliament in the center

appears in the shape of the commissions and circuit composed of local magnets by the side of ordinary judges. For our purpose, it is important to note that, in the main, the requirement as to justice administered by one's peers gradually resolved itself in the hands of the justices who founded the common law into potential appeal to a royal high court. It cannot be said this process of transformation took place without opposition and misunderstandings,

or that it followed a perfectly straight course. It is well known how the higher baronage obtained a strict recognition of its position as a group of peers of the realm. A corollary to that purely feudal view appears in the claim of privileged exemption from trying the causes of lower people. It is also interesting to note that sometimes attempts were made to establish further gradations in the peerage, for example in the case of Gilbert of Clare, Earl of Gloucester, who wanted to be tried by lord marchers like himself.

The process of affecting the free population below the exalted ranks of the peerage is more interesting. Here also we find an occasional attempt to establish group divisions. A Yorkshire knight seeks and obtains from an itinerant justice to be tried by fellow knights instead of a jury of freemen selected without distinction of rank. The judiciar in this case complies with the request of the accused

and gets rid in this way of one of the latter's many objections. But as we know, such an exclusive point of view did not prevail as to the composition of juries, both grand and petty. The rule established by practice required merely that members of the jury should be empaneled from the country, patria, or the neighborhood, Visnedum, that they should be free and lawful men of some social standing, and that their several appointments could not be challenged on personal grounds. Anyway, even when knights are selected for the recognition,

it is evident that they do not belong to a circle of peers of the accused in any other sense but that of being his equals in rank. They do not constitute in themselves an ordinary court of peers to which the accused man would eventually be a suitor. They are members of the patria,

in the case just quoted from the county of Yorkshire, and act in a representative capacity. One more characteristic feature has to be noted. The knights in question are selected to satisfy the requirement as to judicum parium, and at the same time they are a jury, a petty jury according to the technical terminology of later days.

Submission to the verdict on the part of the accused is enforced by means of the threat of applying the regime of hunger and thirst, which formed such an important element in the Pene Forte a Dure. Altogether, the report of the trial looks like a standard case, selected for the purpose of illustrating all sorts of dodges, counter moves, and exceptions which might be resorted to by an accused person. There can be no doubt in this way a criminal petty jury

was taking the place of a batch of peers, and though we have no similar means of exact identification in other instances, the mere reading of Crown trials in such collections as that of the select pleas of the Crown, the Crown pleas of the Clowney of Gloucester, and the Notebook of Bracton affords ample corroborative evidence of the treatment of criminal cases on those lines. All cases of felony in these volumes are tried and decided in royal

courts, either by appeals or by the recognition of juries. The latter mode becomes more and more common, and except in the case of a great man, depends not on a judgment by the futile peers of the accused, but on a recognition by men of the same group, free and lawful men of the country. The question arises, is the treatment of that recognition as a judgment the result of mere confusion and looseness of terminology? Or has it been brought about by the deliberate overriding

of the Magna Carta provision by royal justices? Neither the one nor the other solution is likely to commend itself to modern students. In order to understand the process of substitution by which the jury was put at the place of the circle of feudal peers, we have to attend, as it seems to me, not only to the existence and rapid increase of small freemen who had no standing as vassals, but also to the popular conception of a public court in 13th century England.

The opposition between judgment and verdict developed only gradually in consequence of the growth of the jury system, and although, as has been convincingly shown by H. Brunner, the trial by jury was in truth the outcome of inquests held by professional judges under the authority of the king. Yet in the popular mind there lingered the notion that jurors were delegates of a body of doomsmen. This is assumed in the Yorkshire case, under discussion.

But it is also indicated by the frequent substitution of an award by jurymen for the doom or judgment of a popular court. One of the earliest extent records of a post-conquestual plea, the account of a suit in which Bishop Odo of Baeux ultimately got the best of it against his opponent, contains the notice that sworn representatives of a county were substituted for the full court of the county. From a case inserted in Bracton's notebook, we can gather that the right to make dooms,

that is, to pronounce judgments, was considered to be inherent in the status of a member of a county court, though its proper exercise depended on the holding of a regular session of the court. It could certainly not be denied that a suitor of the county acting as an assessor of its courts was able to exercise judicial functions by the side of the sheriff or of the royal justice who presided in the court.

In the same way, a juror, representing the patria, was deemed to contribute in a certain sense to a judgment, although in another sense the judgment as a final decision of the case appertained to the royal justice. This manner of treating the question led to a rather ambiguous phraseology,

but it helps to explain how the rule as to judici emparium was applied by the royal courts in the case of freemen not belonging to the highest social rank of the peerage. It remains for me to consider the constitutional widening of the prohibition of arbitrary imprisonment and destruction. It has been currently held to be the germ of habeas corpus doctrine,

and there is a good deal of truth in this view, although it certainly does not comprise the whole truth. The narrow class basis on which the rule was originally drawn up need not be insisted on. It is the initial assumption from which further analysis has to start. What I should like to emphasize is the fact that right through the Middle Ages, the rule was recognized by the judges and became one of the fundamental principles,

not of the law of peerage, but of the common law. It was reasserted again and again by various parliaments, with slight variations in form, which showed that it was not treated as an empty formula kept up by meaningless tradition. In John de la Lys' case, it formed the basis of the defendant's claim.

In the quashing of Thomas of Lancaster's sentence, and in the proceedings as to Maltrever's pardon, royal officers and even the peers of Parliament were charged with flagrant breaches of the rule of law, safeguarding the right of free Englishmen to a fair trial. It must be conceded, at the same time, that there was a powerful doctrine which ran counter to a consistent application of Clause 39 of Magna Carta,

Namely, the exceptional power assigned to the king in virtue of his prerogative as sovereign ruler of the Commonwealth. Thomas of Lancaster was condemned to death without trial because Edward II had personally recorded the notorious fact of his treason. The personal command of the king is often recognized by judges to outweigh purely legal considerations. In the procedure of Replevin as applied to accused persons, it was taken for granted that an arbitrary arrest might be justified by the personal order of the king. This point may be illustrated, for example, by the following extract from a writ De Homine Replagiando of Edward I.

The sheriff of Cambridgeshire is ordered to Replevin a certain Richard, and others, who had been arrested by the bailiffs of the Bishop of Ely. Nisi capti assent per speciale, prae septum nostrum velcapitalis justiciari nostri. The passage implies, of course, to preliminary arrest and not to punishment. But it was well understood already in medieval times that such preliminary arrests might create the greatest hardship and ought to be guarded against. How is one to reconcile these conflicting tendencies?

They cannot be reconciled by logical construction. They represent, as it were, the two poles of English political development in the Middle Ages. The historical struggle between John and the barons, Henry III and Montfort, Edward II and Lancaster, Edward III and the Good Parliament, had its counterpart in conflicting legal theories as to the extent of the royal prerogative and the application of legal rules. But as one might say of English judician Edward I, that he was eminent as a powerful ruler,

and at the same time as a most efficient promoter of legal order. So it may be said of the judges who shaped the common law that they were fully alive to the necessity of a rule of law, and regarded the modifying interference of the prerogative as an exceptional agency which ought not to affect the general administration of justice. The principle of legality as formulated in Magna Carta is one of the elements of England's constitutional growth, and it has certainly exerted an influence on the destinies of the nation, which is not lessened by the fact that the roots of the Charter were embedded in the soil of feudalism. End of Section 6. Recording by Patrick Martin.