II.: Modern Interpretations.

If the chapter is read in a broad sense as prohibiting abuses of a generic kind, it is possible that more than one of its modern exponents may be substantially correct, in spite of apparent contradictions. (1) One theory would read the clause as forbidding magistrates to show undue favour to defendants of certain classes. Crown officials, under John, 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.” 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.

(2) On the other hand, the clause is sometimes made to prohibit undue favour shown to demandants in civil suits 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.

(3) A closely allied explanation treats the clause not as forbidding undue favour towards one party to an action, but rather as preventing bailiffs from favouring themselves. When it suited them, the King’s officials were wont to dispense with the wholesome rule that demanded “suit” or its equivalent before a plea could be entertained. This practice was by no means confined to England, and has been discussed by Dr. Brunner.

(4) It is perhaps only another aspect of the same explanation to regard the clause as directed mainly against unfair treatment of accused men in criminal prosecutions. No one ought to be put to his “lex,” in the sense of “ordeal,” on mere grounds of vague suspicion or on the unsupported statement of a royal bailiff. After 1166, at least, the voice of an accusing jury of neighbours was a necessary preliminary, under normal circumstances, before any one could be put to the ordeal in England. Magna Carta confirmed this salutary rule: no bailiff should put any one to the ordeal except after formal indictment, due evidence of which was presented at the diet of proof.