Читать книгу Magna Carta: A Commentary on the Great Charter of King John - William Sharp McKechnie - Страница 18

Table of Contents

A well-known aphorism of legal text-books, couched in language unusually figurative, declares the King to be “the sole fountain of justice.” Correct as it is to apply this metaphor to the present state of the constitution, it would be an anachronism and a blunder to transport it into the thirteenth century. In John’s reign there still were—as there had been for centuries—not one, but many competing jurisdictions. It was by no means a foregone conclusion that the King’s Courts were the proper tribunals to which a wronged individual must repair to seek redress. On the contrary, the great bulk of the rural population, the villeins, had no locus standi except in the court of the manor to which they belonged; while the doors of the royal Courts had been closed against the ordinary freeman previous to the reign of Henry II. Royal justice was still the exception, not the rule. Each man must seek redress, in the ordinary case, in his own locality. To dispense justice to the nation at large was no part of the normal business of a medieval King.

I. Rival Systems of Law Courts. In the thirteenth century, there existed not one source of justice, but many. Rival courts, eagerly competing to extend their own sphere of usefulness and to increase their own fees, existed in a bewildering multitude. Putting aside for the moment the Courts Christian, the Borough Courts, the Forest Courts, and all exceptional or peculiar tribunals, there existed three great rival systems of jurisdiction which may be named in the order in which they became in turn prominent in England.

(1) Local or District Courts. Justice was originally a local product, and administered in rude tribunals, which partook more or less of a popular character. Each shire had its council or assembly for hearing pleas, known as a “shire-moot” in Anglo-Saxon days, and usually as a “comitatus” after the Norman Conquest; while each of the smaller districts subdividing the shire, and forming units of administration for purposes of taxation, defence, justice, and police, had a moot or council of its own, serving as a court of law, to which the inhabitants of the various villages brought their pleas in the first instance. These smaller districts were known as hundreds in the south, and as wapentakes (a name of Danish derivation) in the north.

The theory generally received is that all freemen were originally suitors in the courts of the shire and the hundred, and that the whole body of those present, the ordinary peasant (“ceorl”) equally with the man of noble blood (“eorl”), took an active part in the proceedings, pronouncing (or, at least, concurring in) the judgments or dooms there declared; but that, as time progressed, the majority of the Anglo-Saxon ceorls sank to the half-servile position of villeins—men tied for life to the soil of the manor, and passing, like property, from father to son. These villeins, although still subjected to the burden of attendance, and to some of the other duties of their former free estate, were deprived of all those rights which had once formed the counterpart of the obligations. Another school of historians, it is true, denies that the mass of the population, even in very early times, ever enjoyed the right to any active share in the dispensation of justice. It is unnecessary here to attempt a solution of these and many other intricate problems surrounding the composition and functions of the courts of shire and hundred; or to discuss the still more vexed question how far the small assembly of the villagers of each township is worthy to be reckoned a formal court of law. It is sufficient to emphasize the importance of the existence from early times of a complete network of courts, each dispensing justice for the people of its own district.

(2) Feudal Courts. Centuries before the Norman Conquest, this system of popular or district justice found itself confronted with a rival scheme of jurisdictions—the innumerable private courts belonging to the feudal lords of the various estates into which the whole of England had been divided. This new system of private tribunals (known indifferently as feudal courts, manorial courts, seignorial courts, or heritable jurisdictions) slowly but surely, such is the orthodox view generally, although not universally accepted, gained on the older system of popular courts of shire, hundred, and wapentake.^[140]

Practically every holder of land in England came to be also the holder of a court for the inhabitants of that land. The double meaning of the word “dominus” illustrates the double position of the man who was thus both owner and lord.^[141] In the struggle between two schemes of justice, the tribunals of the feudal magnates easily triumphed, but never absolutely abolished their rivals. The earlier popular courts still lived on; but the system of district justice which had once embraced the whole of England was completely honeycombed by the growth of the feudal courts. As each once-free village passed under the domination of a lord, and gradually became a manor or embryo-manor, the village-moot (with such rudimentary authority as it may originally have possessed) gave way before a new manorial court endowed with much wider powers and with more effective sanction for enforcing them. Further, as complete hundreds fell under the control of specially powerful magnates, the entire courts of these hundreds were replaced by or transformed into feudal courts; franchises thus took the place of many of the old popular moots. Still, the older system retained possession of part of the disputed ground, thanks to the protection given it in its hour of need by the Crown. A great majority of the hundreds never bowed to the exclusive domination of any one lord, and the courts of the shires were jealously guarded by the Norman Kings against the encroachment of even the most powerful of barons. It is true that they only escaped subjection to a local landowner in order to fall under the more powerful domination of the Crown. Yet the mere fact that they continued in existence acted at least as a check on the growth of the rival system of seignorial tribunals.

Although it was the policy of the Norman Kings to prevent their barons from gaining excessive powers of jurisdiction, it was by no means their policy to oppose these jurisdictions altogether. On the contrary, the Conqueror and his sons were glad that order should be enforced and justice administered, even in a rough-and-ready manner, in those districts of England whither the Crown’s arm was not long enough to reach, and where the popular courts were likely to prove inefficient. Thus, the old system and the new existed side by side; it was to the interest of the central government to play off the one against the other.

In later days (but not till long after Magna Carta) each manorial tribunal split into three distinct courts, according to the class of pleas it was called upon to try. Later writers distinguish absolutely from each other, the Court Baron, settling civil disputes between the freeholders of the manor; the Court Customary, deciding non-criminal cases among the villeins; and the Court Leet, a petty criminal court enforcing order and punishing small offences. The powers of these courts might vary, and in many districts the jurisdiction over misdemeanours belonged not to the steward of the lord of the manor, but to the sheriff in his half-yearly Circuits or “Tourns” through the county. In the imperfectly feudalized districts the Tourn of the sheriff, as the representative of the Crown, performed the same functions as the Court Leet performed within the territories of a franchise.

(3) Royal Courts. Originally, the King’s Court had been merely one feudal court among other feudal courts—differing in degree rather than in kind from those of the great earls or barons. The King, as a feudal lord, dispensed justice among his feudal tenants (whether barons and freemen or only servile dependents), just as any baron or freeman dispensed justice among his tenants, bond or free. No one dreamed, in the time of the Norman Kings, that the Curia Regis would or could undertake the enormous labour of dispensing justice for the whole nation (or even of supervising the courts which did dispense it). Each individual must, on the contrary, look for the redress of wrongs either to the court of the people of his own district, or to the court of his lord. Royal justice for all (in the modern sense) was simply impossible. The monarchy had no machinery at command for effecting this. The task was a gigantic one, which no Anglo-Saxon King, which not even William I., could possibly have undertaken. No attempt in this direction was made by the Crown until the reign of Henry II., who was placed in a position of unprecedented power, partly by circumstances, but chiefly by his great abilities. Even he, born reformer as he was, would never have increased so greatly the labours of government, if he had not clearly seen how enormously the change would enhance both the security of his throne and the revenue of his exchequer.

In normal circumstances, then, prior to the Angevin period, the King’s Court was merely a tribunal for transacting the king’s own business, or for holding pleas between the Crown’s own immediate tenants. Even from an early date, however, the business of the monarch, from the mere fact that he was lord paramount, was necessarily wider than the business of any mesne lord. In a dim way, too, it must have been apparent from the first, that offences against the established order were offences also against the king, and that, therefore, to redress these was the king’s business competent in the King’s Courts. Further, the Sovereign’s prerogative quickly waxed strong, and enabled him to give effect to his wishes in this as in other matters. The Crown asserted a right (while admitting no corresponding duty) to investigate any pleas of special importance, whether civil or criminal. Still, up to the Norman Conquest, and thereafter under William and his sons, royal justice had made no deliberate attempt to become national justice, or to supersede feudal justice. Each kept to its recognized province. The struggle between the two began only with the reforms of Henry II.^[142]

Thus the three great systems of jurisdiction, popular justice, feudal justice, and royal justice (each depending on a different principle) succeeded each other, on the whole, in the order in which they are here named. Yet the sequence is in some ways logical rather than chronological. No absolute line can be drawn, showing where the supremacy of one principle ended and that of the next began. For centuries, all three co-existed, and struggled for the mastery. The germs of manorial jurisdiction may have been present from an early date. Shire-courts and hundred courts alike were continually in danger of falling under the domination of powerful local magnates. Yet the shire-courts were successful in maintaining till the last (thanks to royal favour) their independence of the manorial jurisdictions and their lords; while only a proportion of the hundred courts fell into bondage.

The royal courts, again, exercised an important jurisdiction from the very foundation of the monarchy; and the king in person, or by deputy, from an early date, withdrew special causes from the County Courts, and also interfered with manorial franchises. Finally, the Courts Baron were never abolished, but only silently undermined by the policy of Henry II. and his successors, until they gradually sank into decrepitude without really ceasing to exist.

With these caveats, however, the three systems may be regarded, in some measure, as following one another in the order named:—popular justice, feudal justice, royal justice.

II. Legal Procedure. The procedure adopted in litigation in Anglo-Saxon and Norman times was similar in essentials in all three classes of tribunals, and differed materially from the practice of courts of law at the present day. Some knowledge of the more glaring contrasts between ancient and modern procedure may here be profitably discussed, not only on account of the interest inherent in the subject, but also because it will conduce to an understanding of several otherwise obscure provisions of Magna Carta.

Avoiding technical language, and eliminating special procedure peculiar to any one court or country, the principal stages in a normal litigation in a modern court of law may be given briefly as follows:

(1) On the complaint of the party aggrieved—the plaintiff—a summons, or writ, is issued by an officer of the court. Proceedings are opened by the command addressed to the defendant to appear in court and answer what is alleged against him.

(2) Each party lodges written statements of his facts and pleas—that is, of the circumstances of the case as they appear to him (or such of them as he hopes to bring evidence to prove)—on which he founds his claim or his defence, and of the legal principles he intends to deduce from these circumstances. When these statements of facts and pleas have been revised and adjusted, the complete data are now before the court; each party has finally stated what he considers essential to his case.

(3) Proof is, in due course, led; that is, each party is afforded an opportunity of proving such facts as he has alleged (and as require proof through the denial of his opponent). This he may do by documents, witnesses, or otherwise. Each party has the further privilege of shaking his opponent’s evidence by cross-examination.

(4) The next important stage is the debate, the main object of which is to establish by legal arguments the pleas founded on; to deduce the legal consequences inherent in the facts which have been proved.

(5) Finally, the judge gives his decision. He has to determine, after weighing the evidence led by either party, what facts have really been established, and how far the various pleas of plaintiff and defendant respectively are implied in these facts. A considerable amount of thought and reasoning of such a kind as can be successfully performed only by a highly trained legal mind is thus necessary before the final decree or sentence can be pronounced by a judge in a modern court of law.

A trial in Anglo-Saxon and early Norman times stands in notable contrast to all this in almost every essential of its stages and procedure, and even more radically in the spirit which pervades the whole. Thus, the proceedings, from first to last, were purely oral, there being no original writ or summons, no written pleadings, and no record kept of the decision except in the memories of those present. The functions of “the judges” were entirely different, and demanded no previous professional or legal training, since they were not required either to weigh a mass of evidence or to determine the bearing of subtle legal arguments, but merely to see fairplay, and to decide, according to simple rules, well established by centuries of custom, by what test the allegations of plaintiff and defendant were respectively to stand or fall. Finally, the arrangement of the stages of the litigation was entirely different. It is with something of a shock that the modern lawyer learns that in civil and criminal causes alike “judgment” invariably preceded “trial.” Reflection will soon convince him that each of these words had in the Middle Ages a meaning different from what it bears to-day. These ancient meanings can be best understood by following the stages of the old procedure.

(1) The initial difficulty was to obtain the presence of the defendant in court, since there existed a strange reluctance either to compel his attendance or to allow judgment to pass against him by default. No initial writ was issued commanding him to appear; almost endless delays were allowed.

(2) When both parties had been, after many adjournments, actually brought face to face before the court, the statements alike of the claim and of the defence were made verbally and in set formulae, the slightest slip or stumble in the words of which involved complete failure. This is merely one illustration of the tremendously formal and technical nature of early legal procedure common to all half-developed systems of jurisprudence.

(3) Before the plaintiff could put the defendant finally on his defence, he required to show some preliminary presumption of the probability or bona fides of his case. This he usually did by producing two friends ready to substantiate his claim, known sometimes as his “suit” (Latin secta), or his “fore-witnesses.” Their evidence was not weighed against the “proof” afterwards led by the defendant; its object was merely to warrant the Court in demanding “proof” from the latter at all.^[143]

(4) Then came the judgment—the chief or “medial” judgment, so called to distinguish it from the less important final judgment or decree which came at a later stage. This medial judgment or “doom,” to use the Anglo-Saxon word, partook in no respect of the nature of the judgment of a modern tribunal. It came before the proof or trial, not after it. It consisted indeed in decreeing whether or no, on the strength of the previous procedure, the defendant should be put to his proof at all; and if so, what “proof” should be demanded.

Now, the exact test to be appointed by the court varied somewhat, according to circumstances, but long-established custom had laid down with some exactitude a rule applicable to every case likely to occur; and, further, the possible modes of proof were limited to some four or five at the outside. In Anglo-Saxon times, these were mainly compurgation, ordeal, witnesses (whose functions were, however, widely different from those of witnesses in modern law), and charters. The Norman Conquest introduced for the new-comers, a form of proof previously unknown in England—"trial by combat"—which tended, for the upper classes at least, to supersede all earlier methods of procedure. The “proof,” of whatever kind it might be, thus appointed by the “judges” for the defendant’s performance was technically known as a “law” (Latin lex) in the sense of a “test” or “trial” or “task,” according to his success or failure in which his case should stand or fall.^[144]

It will be apparent that to pronounce a “judgment” in this sense was a simple affair, a mere formality in the ordinary case, where room for dubiety could hardly be admitted; and thus it was possible for “judgment” to be delivered by all the members of a feudal court, or even by all the suitors present at a meeting of the hundred or shire-moot.

(5) The crucial stage, this “trial” which thus came after “judgment,” consisted in one party (usually the defendant) essaying, on the day appointed, to satisfy the court as to the truth of his allegations by performing the task or “law” which had been set or “doomed” to him. When this consisted in the production of a charter, or of “transaction witnesses” (that is, the testimony of those officials appointed in each market-town to certify the conclusion of such bargains as the sale of cattle), it commends itself readily to the modern understanding and approval. More frequently, however, it took the form of “an oath with oath-helpers,” the plaintiff bringing with him eleven or twelve of his trusty friends or dependents to swear after him the words of a long and cumbrous oath, under the risk of being punished as perjurers for any slip in the formula. This was known also as compurgation. Sometimes the decision was referred to the intervention of Providence by appealing to the ordeal of the red-hot iron or the more-dreaded ordeal of water. After the Norman Conquest, the trial in all litigations between men of high rank, took the form of duellum or legally regulated combat between the parties. The defendant gained his case if he caused the plaintiff to own himself worsted by uttering the word “craven.” He gained his case equally if he only held out till nightfall (when the combat terminated) against the plaintiff’s attempts to force him to utter that fateful word.^[145]

The battle was fought out before the “judges,” who, in the case of an earl or baron, were the other earls and barons assembled as his peers in the King’s court; and, in the case of the tenant of a mesne lord, were the other freeholders of the same manor.

The ancient “trial” (the importance of which is increased by the fact that it continued long after 1215, and may be traced in several clauses of Magna Carta)^[146] was thus something entirely different from the modern “trial.” It may be said without exaggeration that there was no “trial” at all in the current meaning of the word—no balancing of the testimony of one set of witnesses against another, no open proof and cross-examination, no debate on the legal principles involved. The ancient “trial” was merely a formal test, which was, except in the case of battle, entirely one-sided. The phrase “burden of proof” was inapplicable. The litigant to whom “a law” was appointed had the “privilege of proof” rather than the “burden of proof,” and he usually won his case—especially in compurgation, and even in ordeal if he had arranged matters properly with the priest who presided.^[147]

(6) The whole was concluded by the final “judgment,” or decree, which practically took the form of a sentence passed on the vanquished. The judges could scarcely be said to decide the case, since this had already been practically decided by the success or failure of the party on whom the proof had been laid. Those who gave sentence were “judges” merely in the sense of umpires who saw fairplay to both players, according to the acknowledged rules of the desperate game.^[148]

In one sense, the final (as opposed to the medial) “judgment” was determined by the parties themselves, or by one of them; in another and higher sense the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent man. Those who delivered the final doom, had a purely formal task to perform, and had little in common with the “judges” of a modern court.^[149]

The essentials of this procedure were the same in the Norman as in the Anglo-Saxon period, and that in all three classes of tribunals—popular courts, manorial courts, and royal courts.

Two innovations the Norman Kings did make; they introduced trial by combat (already sufficiently discussed), and likewise the continental method of obtaining information on sworn testimony. Among the prerogatives of the Norman Dukes one of the most valuable was the right to compel the sworn evidence of reliable men of any district—men specially picked for the purpose, and put on oath before answering the questions asked of them, thus endangering their eternal welfare in the event of falsehood, and laying themselves open to temporal penalties for perjury.

This procedure was known as inquisitio (or the seeking of information) when regarded from the point of view of the government making the inquiry, and as recognitio (or the giving of information) from the point of view of those supplying it. This extremely simple and practical device was flexible and capable of extension to endless new uses in the deft hands of the Norman Kings in England. William the Conqueror employed it in collecting the laws and customs of the conquered people, and, later on, in compiling Domesday Book; while his successors made it the instrument of various experiments in the science of taxation. It has a double claim to the interest of the constitutional historian, because it was one of the influences which helped to mould our Parliamentary institutions; and because several of the new uses to which it came to be put had a close connection with the origin of trial by jury. The recognitors, indeed, were simply local jurors in a rude or elementary form.^[150]

III. Reforms of Henry II. in Law Courts and Legal Procedure. It was reserved for Henry of Anjou to inaugurate an entirely new era in the relations of the three classes of courts. He was the first king deliberately to plan the overthrow of the feudal jurisdictions by insidiously undermining them, if not yet by open attack. He was the first king to reduce the old district courts so thoroughly under the control of royal officials as to turn them practically into royal courts. He was the first king also to throw open the doors of his own courts of law to all-comers, to all freemen, that is to say, for the despised villein had for centuries still to seek redress in the court of that very lord of the manor who was too often his oppressor.

In brief, then, Henry’s policy was twofold: to convert the County Courts practically into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s own Curia; and to reduce all manorial or private courts to insignificance by diverting pleas to his own Curia, and leaving the rival tribunals to die gradually from inanition. Both branches of this policy met ultimately with complete success, although the event hung in the balance until long after his death. The barons, though partially deceived by the gradual and insidious nature of Henry’s reforms, did what they could to thwart him; but the current of events was against them and with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces plainly written in several chapters of Magna Carta.^[151]

These contain what seem, at first sight, to be merely trivial alterations of technical points of court procedure; but inextricably bound up with them are principles of wide political and constitutional importance. Henry’s policy was to disguise radical reforms until they looked like small changes of procedure; it follows that the framers of Magna Carta, while appearing merely to seek the reversal of these trivial points, were really seeking to return to the totally different conditions which had prevailed prior to the reforms of Henry.

A short account of the main outlines of that monarch’s new system of procedure forms a necessary preliminary to a complete comprehension of these important chapters of Magna Carta. Such an account falls naturally into two divisions.

(1) Criminal Justice. (a) By his Assizes of Clarendon and Northampton Henry strictly reserved all important crimes for the exclusive consideration of his own judges either on circuit or at his court; and he demanded entry for these judges into franchises, however powerful, for that purpose. In this part of his policy, the King was completely successful; heinous crimes were, in the beginning of the thirteenth century, admitted on all hands to be “pleas of the Crown” (that is, cases exclusively reserved for the royal jurisdiction); and Magna Carta made no attempt to reverse this part of the Crown’s policy. The change was accepted as inevitable. All that was attempted in 1215 was to obtain a promise that these functions, now surrendered to the Crown forever, should be discharged by the Crown’s officials in a proper manner.^[152]

(b) Henry’s usual good sense, in this matter stimulated by some notable miscarriages of justice, led him to question the equity of the procedure usually adopted in criminal pleas, namely, by “appeal” or formal accusation by the injured party, or his nearest surviving relative. He substituted, whenever possible, communal accusation for individual accusation; that is, the duty of proclaiming (or indicting) the suspected criminals of each district before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours specially selected for that purpose—the predecessors of the Grand Jury of later days. This new procedure, it is true, supplemented rather than superseded the older procedure; yet it marked a distinct advance. Appeals were discouraged and exact rules laid down restricting the right of accusation to certain cases and individuals.^[153]

(c) A necessary complement of the discouragement of appeals was the discouragement of “trial by combat” also, since that formed the natural sequel. An ingenious device was invented and gradually extended to an increasing number of cases; an accused individual might apply for a writ known as de odio et atia, and thus avoid the duellum altogether by having his guilt or innocence determined by what was practically a jury of neighbours.^[154]

(2) Civil Justice. Henry’s innovations under this head were equally important.

(a) An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ process.” Once it was issued, all proceedings in other courts must stop. One special form of writ (known as praecipe), in particular, became a royal instrument for removing before the King’s own Curia cases pending in the manorial courts of mesne lords. To do this was to enrich the King at the expense of some baron or other freeman, by bringing to the Exchequer fees which otherwise would be paid to the owner of the private court. This was plainly "to cause a freeman to lose his court"—an abuse specially struck at by chapter 34 of the Great Charter.

(b) The mass of new business attracted to the King’s Courts made it necessary to increase, the staff of judges and to distribute the work among them. A natural division was that ordinary pleas (or common pleas) should be tried before one set of judges, and royal pleas (or pleas of the Crown) before another. This distinction is recognized in many separate chapters.^[155] Thus two groups of judges were formed, each of which was at first rather a committee of the larger Curia as a whole than an independent tribunal; but, in later years, the two rapidly developed into entirely separate courts—the Court of Common Pleas (at first known as the Bench, that is, the ordinary Bench), and the Court of King’s Bench (that is, the royal Bench, known also at first as the court Coram Rege, since it was always supposed to be held in the King’s presence).

(c) Special procedure for determining pleas of disputed titles to land or rights of possession was also invented by Henry to take the place of the ancient method of trial by battle. These Assizes, as they were called, are fully discussed elsewhere.^[156] The Grand Assize was looked on with suspicion by the barons as a procedure competent only before the royal courts, and therefore closely bound up with the King’s other devices for substituting his own jurisdiction for that of the private courts. The petty assizes, on the contrary, met with a ready acceptance, and the barons in 1215, far from objecting to their continuance, demanded that they should be held in regular sessions four times a year in each county of England.

These were the chief innovations which enabled Henry, while instituting many reforms urgently required and gladly welcomed by the mass of his subjects, at the same time to effect a revolution in the relations of royal justice to feudal justice. As time went on, new royal writs and remedies were being continually devised to meet new types of cases; and litigants flocked more and more readily to the King’s Courts, leaving the seignorial courts empty of business and of fees. Nor was this the only grievance of the barons. When one of their own number was amerced or accused of any offence involving loss of liberty or lands, he might be compelled by the Crown, under Henry and his sons, to submit to have the amercement assessed or the criminal proceedings conducted by one of the new Benches (by a tribunal composed of some four or five of the King’s officials), in place of the time-honoured judgment of his peers assembled in the Commune Concilium (the predecessor of the modern Parliament).

Can we wonder that the barons objected to be amerced and judged by their inferiors?^[157] Can we wonder that they resented the complete though gradual supersession of their own profitable jurisdictions by the royal courts?^[158] or that they looked with suspicion on every new legal development of the royal justice? Can we wonder that, when they seemed to have King John for the moment in their power, they demanded redress of this group of grievances, as well as of those connected with arbitrary increase of feudal burdens?

The cause for wonder rather is that their demands in this respect were not more sweeping and more drastic. It was one thing for their fathers to have endured the encroachments of so strong a King as Henry II.—far too wise a statesman to show clearly whither his innovations were ultimately tending, and (some lapses notwithstanding) a just ruler on the whole, using his increased prerogatives with moderation and for national ends. It was quite another thing to endure the same encroachments (or worse) from an unpopular King like John, discredited and in their power, who had neither disguised his arrogance nor made good use of his prerogatives. Royal justice, as dispensed by John, was in every way inferior to royal justice as dispensed under his father’s vigilant eye. Yet the exasperated barons, in the hour of their triumph, actually accepted, and accepted cordially, one half of royal justice; while they sought to abolish only the other half. The chapters bearing on the question of jurisdiction may thus be arranged in two groups, some reactionary, and some favourable to Henry’s reforms. On the one hand, no lord of a manor shall be robbed of his court by the King evoking before the royal courts pleas between two freeholders of the lord’s manor;^[159] no freeman shall be judged or condemned by the King’s officials, but only before the full body of his peers (that is, of his fellow earls and barons, if he be an earl or baron, and of his fellow tenants of the manor, if he holds of a mesne lord);^[160] earls and barons must be amerced only by their equals.^[161] On the other hand, in prescribing remedies for various abuses connected with numerous branches of legal procedure recently introduced into the royal courts, the barons accepted by implication this new procedure itself and the royal encroachments implied therein. For example, the Crown’s right to hold “Common Pleas” was impliedly admitted, when the barons asked and obtained a promise that these should be tried in some certain place (that is, at Westminster).^[162] Yet these very pleas, ordinary ones in which the Crown had no special interest, as opposed to Pleas of the Crown in which it had, must have included many cases which, prior to Henry II.’s reforms, would not have been tried in a royal court. Again, in regulating the various Petty Assizes, chapters 18 and 19 admit the Crown’s right to hold them. Such Assizes must be taken henceforth four times a year. Here, as in chapter 40, the ground of complaint is not that there is too much of royal justice, but rather that there is too little of it; it is henceforth to be neither delayed nor denied. Further, the encroachments made by Henry II. in 1166 on the rights of private franchises in the matter of criminal jurisdiction are homologated by acquiescence in the King’s definition of “Pleas of the Crown” implied in chapter 24.

These, then, are the two clearly contrasted groups into which the innovations made by Henry and his sons, within the province of justice, naturally fell as viewed by John’s opponents in 1215: some of them had now come to be warmly welcomed, and these, it was insisted, must be continued by the Crown; while some of them still excited as bitter opposition as ever, and these, it was insisted, must be utterly swept away.