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Profane Culture
With a New Preface by the Author

Paul E . Willis

Princeton Universit y Press

Princeton & Oxford
Published by Princeton University Press,
41 William Street, Princeton, New Jersey 08540
In the United Kingdom: Princeton University Press,
6 Oxford Street, Woodstock, Oxfordshire OX20 1TW
Originally published in 1978 by Routledge & Kegan Paul Ltd.
of London and Boston. copyright © Paul E. Willis.
This paperback edition, including the new preface by the author,
is copyright © 2014 by Princeton University Press
press.princeton.edu
White Rabbit (page 213)
Words and music by Grace Slick
Copyright © 1966 by IRVING MUSIC, INC.
Copyright Renewed
All Rights Reserved. Used by Permission
Reprinted by permission of Hal Leonard Corporation
Jacket art: Motorcyle photograph © James Mann (www.jamesmann.com).
Tie-­dye image © Brad Garrett
All Rights Reserved
Library of Congress Cataloging-­in-­Publication Data
Willis, Paul E.
Profane culture / Paul E. Willis ; with a new preface by the author.
pages cm
Includes bibliographical references and index.
ISBN 978–­0–­691–­16369–­7 (pbk.)
1. Hippies—­England. 2. Motorcyclists—­England. 3. Popular culture—­England.
4. Subculture—­England. I. Title.
HQ799.G72E58 2014
305.5'680942—­dc23
2014010055
British Library Cataloging-­in-­Publication Data is available
This book has been composed in Sabon Next LT Pro and Neutraface No. 2
Printed on acid-­free paper. ∞
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
to Joe and Les
. . . music alone awakens in man the sense of music. . . .
The forming of the five senses is a labour of the entire
history of the world down to the present.
Karl Marx
Economic and Philosophic Manuscripts, 1844
Contents

moments Preface to the 2014 Edition xi

1 Introduction: Profanity and Creativity 1

Part One 13

2 The Motor-­Bike Boys 15

3 The Motor-­Bike 69

4 The Golden Age 82

Part Two 105

5 The Hippies 107

6 The Experience of Drugs 177

7 The Creative Age 201

8 Conclusions: Cultural Politics 223

Epilogue239

Theoretical Appendix 247

Notes267

Index273

IX
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moments
Preface to the 2014 Edition
Spring 1969
Birmingham, England

. . . Chromium-plated double exhaust pipes and high exuberant

mudguards all helped to give the bikes an exaggerated look
of fierce power. It was also common practice to remove the
baffles from the silencer box on the exhaust, in order to allow
the straight-through thumping of the exhaust gases from the
cylinder to carry their explosion directly into the atmosphere.
The effect could be startling. The breathy, loud slightly irregu-
lar bang and splutter brought the hardness and power of the
metal piston exploding down the metal cylinder, abruptly and
inevitably reversing up again, right out into the still air. The
minutely engineered turn of the crankshaft brought a power
and impersonal ferocity right out into the vulnerable zone of
human sensibilities.
An alleyway led up the side of the church to the coffee
bar of the club. Members often parked their bikes along this
narrow passageway, and stood by them talking, starting and
revving their bikes, discussing technical matters or indeed
any matters at all. The noise was often overwhelming: the
loud thumping of the motor-bike engines seemed to promise
sudden movement and action, but none came. Strangers and
neophytes could be unnerved by the continually imagined
necessity to take evasive action against some fantasy explosion
of movement and aggression.
The ensemble of bike, noise, rider, clothes on the move gave a
formidable expression of identity to the culture and powerfully
developed many of its central values. . . .
(Pages 75—76, below)
12.20 pm, May 18th, 2014
West Village, Manhattan

The settled bourgeois air of Greenwich Village is rent. A

deafening roar roots me to a spot on the corner of Bleecker
and Bank as at least a hundred bikes come off Hudson,
some streaming some picking their way around shiny cars
in the sunshine. They are making a turn in front of me into
Bank. Shoppers and strollers look around startled, they stop
and stare. An old-looking bike splutters to a stop, the rider
dismounts to frantically kick start the engine without success.
The traffic is snarled, gets clogged; the bikes stop and start,
shuffling forward with barely baffled thumps, cracklings, snarls,
rumbles and bangs. I keep counting as the bikes snake by,
defying stillness, squeezing through small spaces as otherwise
fearsome SUVs creep to the side. Thoughts of a cupcake at the
Magnolia Bakery on the next corner give way to memories
of widespread recent news reports of a violent ‘biker swarm’
incident with a motorist*. Triumphs, Hondas, Harleys, some
veteran, some new, all shapes and sizes of handlebar including
many cattle horns. It becomes a spectacle. Several deep on
the sidewalk, onlookers wear various expressions from fear to
fascination, surrogates for social attitudes far more revealing
than any survey. A rider stands bolt upright on his footrests
peering at and over the bystanders as he navigates through the
seemingly highly precariously snarled cars. A pungent smell
of petrol hangs in the air long after the last thumps fade into
the distance. The suddenly vulnerable stranded biker kneels by
his machine, toolbox open.
* This is a direct quote from Wikipedia, http://en.wikipedia.org/wiki/Alexian
_Lien_beating:
The beating of Alexian Lien took place on September 29, 2013 on New York
City’s Henry Hudson Parkway in an altercation between Lien and motor-
cyclists participating in a rally called “Hollywood’s Block Party.” One of the
bikers pulled in front of Lien and slowed dramatically, an action sometimes
referred to as “brake checking.” Lien stopped his vehicle and was quickly sur-
rounded by bikers. Lien accelerated to escape and struck one of the bikers,
critically injuring him. A chase ensued, ending in Lien being pulled from
his vehicle and beaten.
This book captures moments from nearly fifty years ago
in Birmingham England during the fomenting years of
countercultural upheaval in England in the late 1960s and
early 1970s. I am delighted to see this ethnography and
analysis of the hippy and bike cultures re-­published now
by Princeton University Press. So long between moments
now and then though. How does this book matter now, to
this moment?
Well, ethnographically and phenomenologically speak-
ing, does it matter when moments are captured? Does
it really matter what the distance is between moments;
between moments of capture and of reading and reread-
ing? I say, ‘No!’ For many purposes it does not. The crucial
ingredients of ethnography—­‘nowness’, ‘thereness’, imme-
diacy and the poignancy of human experience, captured
somehow—­in many ways transcend the boundaries of
time and place. This is part of what defines what it is to be
human: sentient, fearing, thinking, precarious. Not time-
liness but capturing this is the hard thing. This is a report
from the front line nearly fifty years ago. But what was
true then is true now; the same is true of all moments of
experience—­you can hear the voices and cries, feel the air,
smell the burning before the ashes, fear the fire. There is
an openness about what happens next, only drily recorded
later as inevitable outcomes by structural theorists of one
kind or another.
Despite recent turns against it in ethnography critique,
there really is something of an ‘eternal present’ in the way
humans experience the world; a lived track of continuity
always bumping over sleepers, now, now, now. Of course
the track may be switched by history but is only ever
lived through a succession of ‘nows’, moments felt and
understood as ‘experience’, which cannot be reduced to

XV
XVI  preface to the 2014 edition

underlying and constituent forces or banished to con-

descending parentheses or colourful footnotes in social/
structural accounts. Long view, macro and structural ac-
counts may offer good and necessary historical and contem-
porary rec­ord but they are not really often of human record.
As explained shortly, I certainly take contexts—­historical,
immediate, material, as well as contexts of theoretical
framing—­very seriously, but I dwell for a moment on the
ethnographic point. As, outside the arts, only ethnogra-
phy can show, tumbling histories, flattened by recording
only aggregate outcomes, are experienced at the time as
always unfolding and precarious; minutes sometimes last-
ing hours, hours for weeks, quite contrasting with how
decades flash by for the theorist/structuralist.
‘Normalcy’ is so overdone, so misunderstood. It is not
something that comes in with a dull thud from the out-
side, stultifying everything in the local scene. It is a strug-
gled outcome. The normalcy of the everyday, especially in
leisure sites freer from necessity and compulsion, some-
how contains several possible futures apart from the one
that comes. Alterity, change, possibility, often conditioned
and enabled by fun, playfulness and mischief, are freer be-
cause they are not self-­conscious, overstated, the objects
of desire as in formal cultural production. They flow un-
noticed in the train of precarity. There is no port in mind,
no wake left behind. The uncertainties of interaction and
event in the everyday are certainly met and mediated with
stage-­like conventions, which gives some predictability,
but roles (and dramaturgical theoretical metaphors with
them) can be easily broken; they are materials to be chal-
lenged and made fun of, certainly have to be remade and
renewed in the face of that uncertainty which never goes
away. Everyday life stands outside ‘Big History’, neither for
 moments  XVII

nor against its flow, finding fun on its grounds almost as

if it were on independent territory. This is another view of
history, not so much to do with, ‘what changed when’ but
as to do with ‘what didn’t change’, how and why things stay
the same, what exactly are they are when they are the same
or do not seem to change.
Surveying today’s scene across the social sciences, with
notable exceptions and variations of degree, I fear there is
a danger of losing qualities of radical uncertainty, auton-
omy of meaning, unfoldingness, emergence in ethnogra-
phy. Worries about representation, ethnographic authority,
the fear of tunnel-­specialism peer review as well as over-­
professionalization mean that all too often contemporary
ethnographies tiptoe around or allude only through muf-
fling layers of academicism to something really impor-
tant: unique small event, situated conduct, lived feelings in
minute context, unprefigurable meaning in the taking and
making of experience. It is good to be reminded of these
things from whatever epoch! ‘Stet’ is what I wrote against
the original text after scribbling many corrections on my
original work, as I decided to leave the text in its entirety as
it was in the time and context of its production and writing
conventions of the time, including that of male pronoun
use. I say to my new readers: Read forgivingly and gener-
ously for the direction and grain of the text bearing witness
in its openness and rawness to that of which it speaks and
making an attempt to hold up the transitoriness of expe-
rience, to open it not only for understanding but also for
appreciation in its own too often neglected terms, in some
identifiable, palpable way, its own terms.
The difficulty of recording or capturing is compounded,
of course, by the sometimes intractable problems of divin-
ing internal states and by the elusive nature of ‘moments’
XVIII  preface to the 2014 edition

of experience to start with, omnipresent but palpable

often only after, rather than during the course of events.
Transitory for every­one not just the ethnographer. The
obstacles can seem dauntingly immense. Ethnography has
verbal exchange and questioning, of course, as well as ob-
servation of bodies, gestures, tones, crucially setting, ac-
tion, sequence, out­comes—­and I add to the repertoire here
with ‘cultural homologies’ dealt with shortly—­to address
these difficulties and imponderables but it is hardly sur-
prising that accounts which try to attend directly to the
tasks can sometimes seem clumsy and awkward. But I say
to ethnographers: Let’s risk embarrassment, let’s be in the
raw, even the words unabashed, risk being unredeemed
in the hall of academe, risk pretension: try to deal, some-
how, anyhow, with meanings in the symbolic order riveted
small to objects, time and place in the otherwise invisible
trivia of micro daily interaction. I always saw in the title,
Profane, a kind of vandalism and anti-­intellectualism in its
way mimicking the streets to pose a written version of its
surprising symbolic creativity in amidst rawness, uncer-
tainty, provisionality, messiness, carelessness. These are the
precarious threads of daily life, interaction and meaning
which heavy-­duty theory and macro representation strip
off, stripping the screws, be they mighty at their centre
pins, so that they turn only in the abstract. Effortlessly and
impressively turning but to no effect. No purchase in and
on that which is analyzed. There must be in the social sci-
ences a space for a method and a writing which shows
the tiny bits, the grit, the smallest meaning elements, the
tiny contingencies in the fields over which we traverse, al-
ways slowly, never fast. Give it space, do not demand its
price.
So no matter how laden with difficulty and contradic-
tions, I defend the status of ‘experience’ in its own terms.
 moments  XIX

But I would not like the book to be seen as a tract for

a naked empiricism or pure subjectivism. More than one
thing can be true of a phenomenon. For all the difficulties
I see the book as attempting to present ‘experience’ in it-
self yet as also related outwards in all kinds of ways, then
and now, to immediate and historical context and to the
tasks of theoretical understanding and development.
The 1960s, which saw the birth of these cultures, was a
decade of unprecedented social and economic upheaval,
rapid expansion of Western economies and the beginnings
of a huge expansion in higher education. This decade also
saw the rising affluence and consumerism of the working
class, the rise of the feminist movement and mass student
and anti-­war protests as well as early tectonic shifts in
the wholesale process of ‘de-­traditionalisation’ of western
societies—­signaled early, it could be argued, by the rise of
spectacular youth cultures. In their different way, with the
exception perhaps of gender shifts, the cultures described
here speak to all of this, but there is more than histori-
cal interest here. Strangely, well into the new millennium
we are still in many ways profoundly contiguous with the
1960s, in a way that, for instance, the latter were oddly not
contiguous with the ’50s. The ’60s slammed the door on
a suddenly stuffy ’50s, suddenly made it a quite departed
past. The 1960s have refused to depart. The Stones and the
Beatles still top the charts; bikers and hippies and varieties
of ‘neo’ or ‘new age’ and commercial offshoots continue to
proliferate. What may have looked and felt transitory at
the time, passing moments, actually distilled something
lasting, almost accidently proofed to have durable and
significant meaning and providing forms for later genera-
tions, finding new articulations to changed circumstances
and contexts. The bikers and hippies have entered the
popular cultural imaginary.
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X X  preface to the 2014 edition

These cultures helped to usher in new repertoires of

different ways of being, cultural becoming and semiotic
play as mass options for all social groups not just the lei-
sured elite. This book shows the first dislodgings of the
bourgeois institutional tenure on the things of culture,
who selects them and determines what they should mean.
The hippies and the bikers offered practical demonstra-
tions that new orders of signification could be built from
below around common, commercial, chemical or or-
dinary things. Without intention at the time, this book
captures early many cultural themes of late modernity,
making these clear and more analyzable because in for-
mation rather chasing helter-­skelter through the fashion
cycle. These include: personal volition and the possibility
of making of identity and meaning apart from the giv-
ens of birth, nationality and geography; the pressing of
cultural commodities and music into signature identity
work, life style curating and self-­consciousness; style mix-
ing between the visual, music and the kinetic; the com-
ing of layered meanings and cultural multi-­accentuality
to the commodity of form; the absorption of ‘consumer’
experience into the commodity itself as commodity fe-
tishism finds ever larger empires and encapsulates whole
worlds of communication and meaning; the life-­style dance
which seems to push economic and social reality aside in
complex ways with a wonderland of semiotic abundance
apparently hiding but also helping to reproduce deepen-
ing economic and social division.
That is quite a list and I do not, of course, offer here any
contemporary account or analysis. But I do propose that
the book offers not only a particular ethnographic stance
for reconsideration, an early presentation of still influen-
tial if much changed cultures, but also, in cultural homology,
 moments  X XI

a theoretical methodology for approaching a wide variety

of contemporary phenomena in the new world of multi-
ple information sources, interactive technologies and pro-
liferation of life-­style choices. Analytic terms are provided
for exploring the internal connections of lived cultural
forms of today across the board. The theoretical turn I am
introducing now may mix strangely perhaps with the di-
rect and experiential, apparently ‘non-theoretical’ things.
How do I justify this? For me the issue concerning ‘theory’
is simple: granting some delay and unevenness, are ‘the
concrete’ and ‘the theoretical’ finally articulated to pro-
ductive outcome, or are they parallel lines that never meet
with an eternal vacuum in between? Is there an intrinsic
connection of theoretical and local terms? Whether or not
I succeed in supplying it here, I continue to insist that the
best ‘theory’ helps, not hinders, in the concrete reconstruc-
tion of the observed object/subject, extending, not con-
taining, meanings and significance. Theory is certainly a
separate moment, a ‘cooked’ moment of the presentation,
but if it has internal connections it will illuminate, actu-
ally make more real and concrete, that upon which it is
focused. As I explore briefly below, in its way it can also
have a role in overcoming or alleviating some of the press-
ing methodological problems concerning the recording
and presentation of ‘experience’. I think, immodestly, that
in proposing cultural homologies (set out formally only in
the Appendix but informing how the whole book should/
could be read) the book was pioneering in paying deep
and close attention, both empirical and theoretical, to the
relations between immediate presence/sensuousness and
surrounding materials, objects and artifacts. Avant la lettre
of embodiment, of material cultural studies, of actor net-
work theory, I knew that I had to take seriously the physi­cal
X XII  preface to the 2014 edition

world of immediately present things and that these things

always signified humanly in a cultural system not reduc-
ible to the objects; that is what the bikers and hippies
were teaching me. But there was a theoretical moment in
the teaching. And the site of this was a slow formation of
crucial forms and processes which were to speed up and
repeat over and over, making the contemporary cultural
landscape. So for the modern reader there is a double con-
temporary relevance saving the book from the historical
scrapheap: first, taking apart a still relevant, long lasting
and clear cultural specimen, defined in its features and
genesis much more clearly than subsequent phenomena
of the same genre; second, the provision for open use of a
practical, synchronic and diachronic theoretical method-
ology, conceived not in the Ivory Tower but from splash-
ing around in real world puddles of data.
My early love of romantic poetry may have made it clear
to me that there were separate material and symbolic or-
ders, separate but related to each other in highly complex
and dialectical ways: in some ways recto/verso, in some
ways almost but never quite autonomous from each other.
Larger systems supply a lot of the macrosymbolic architec-
ture but with the notion of cultural homology I was inter-
ested in symbolic orderings ground small and the scope
of individual and collective agency to make personal cu-
rations of immediate life, things and passions. I could not
ignore the motor-­bike, the drugs, the particular musics—­
these were what the cultures were ‘about’. I did not want
to mark them down simply as descriptive context but to
understand how they helped to form the whole as material
things and as symbolic things supplying the elements of
a cultural mean­ings system not reducible to them. I felt
the need to develop a kind of home-­grown (post)struc­
 moments  X XIII

turalism—­not of the world of ideas and discourses but of

the world of objects and forms found there and then which
were the building bricks of how the bikers and hippies
were constituting themselves. In developing the notion of
cultural homology, I was trying to uncover the dialectical at-
tachments between preferred cultural items and the social
group to find non-­accidental fits and relations confirm-
ing and developing critical meanings. Because I was start-
ing from this base, trying more fully to understand them,
I was always focused on the social power and dialectical
relations between form and sensibility where call them
aesthetic moments were simultaneously social moments
giving a dynamism to, one of the living threads of, daily life
providing, forgive me, a kind of ‘zero sum plus’ chemical
combination. Here is the thing and umbilical connection
to what I said before about the everyday. Homological anal-
ysis helps in the ethnographic slowing of transitoriness,
gives a technology of thinking for how the usually unno-
ticed uncertainties and creativities of experience are slowed
and materialized, realized. Capacities for difference, alterity,
challenge, always a liminal part of the everyday existential
aesthetic, were not just turning in on themselves. They were
indissolubly linked outwards to external forms, made in re-
lation to them, worked through changes made in relation
to them. They are delivered in a synchronic materiality of
the bike, the music, the drugs. At the same time, new orders
in the signification of cultural items could bring new or-
ders of social signification. Changed cultural forms could
lead to social change. This was and is for me part of seeing
ethnography not just as adding colourful bits of ‘what life
is like’, but as revealing, however difficult to achieve, that
new life is organised and produced, to start with, at least
partly through ‘what life is like’.
X XIV  preface to the 2014 edition

The ‘profane’ of the title is relevant not only to my raw

attempts to capture raw moments of experience in the ev-
eryday, but also to how I think of the objects and artifacts
in the cultural fields of the hippies and bikers. I am not try-
ing to create new categories of ‘the sacred’ and ‘the profane’,
though this is one way of approaching the matter. More I
am trying to argue for a subversive and perhaps alarming
line of thinking that poses everything as profane or as ca-
pable of being made profane. I see this as a deep quality
of cultural democratization and openness (on terms) of
the late modern age. A host of materials—­cultural items,
things consecrated as ‘art’, functional objects—­are kind
of just lying around in the indexical field with their own
ultimately unknowable identities and intrinsic qualities.
They are made meaningful only through human use and
attribution. As with some positions in modern physics,
objects exist only because they are observed [used]. For
most of history the selection and ‘proper’ use of cultural
objects, especially those of High Art, was controlled, or
subject to control, by the powerful and their institutions.
Still true, but the controlled courses and intended pur-
poses are going far awry for ever larger groups: tiny mi-
norities in the early modern age, minorities in the 1960s
perhaps, majorities now. This is fascinating for me not
only because of the widened field of what is considered
to be ‘cultural’, but also because there is in this widened
field a much, much more enabled two-­way flow of ‘mean-
ing traffic’. Humans attribute meaning to things and they
come alive, but objects also, shall we say, imply their own
usage: they allow or disallow certain kinds of attribution,
sometimes accidently suggest new ones, unimagined be-
fore, from their own remaining profane nature. This po-
tential double edge is what gives the ‘profane’ colouring to
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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] and 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. It 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
a 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 century. 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]
 747. See supra, pp. 103-6.

748. See Leges Henrici primi, c. 69, §§ 15-16.

749. Cf. supra, c. 20.

750. “Illud verbum odiosum quod recreantus sit.” Bracton, folio

153.

751. See Jocelyn of Brakelond, pp. 50-2.

752. Blackstone, Commentaries, IV. 316.

753. Cf. supra, 107–9, and also 158-163.

754. Some particulars are given under c. 54.

755. In identifying the writ spoken of by Magna Carta as that “of

life and limbs” with the well-known writ de odio et atia, most
authorities rely on a passage in Bracton (viz.: folio 123). There is still
better evidence. The Statute of Westminster, II. c. 29, ordains: “Lest
the parties appealed or indicted be kept long in prison, they shall
have a writ de odio et atia like as it is declared in Magna Carta and
other statutes.” Further, in 1231 twelve jurors who had given a
verdict as to whether an appeal was false, were asked quo waranto
fecerunt sacramentum illud de vita et membris, without the king’s
licence. See Bracton’s Note Book, case 592.

756. Madox, I. 505, has collected instances.

757. Cf. Pollock and Maitland, II. 585-7, and Thayer, Evidence, 68.

758. It was extended in another direction also: some of the feudal

courts adopted a similar procedure in false appeals (although the
king objected to their doing so without royal licence). Inquests were
held shortly after the abolition of ordeal (1215) in the court of the
Abbot of St. Edmund. See Bracton’s Note Book, case 592.
 759. See Pollock and Maitland, II. 586.

760. 59 George III. c. 46.

761. The early history of habeas corpus is traced by Prof. Jenks in

a learned and interesting article in the Law Quarterly Review, VIII.
164. The writ de odio was obsolete at a date prior to the invention of
the habeas corpus.

762. Cf. Brunner, Entstehung der Schwurgerichte, p. 471.

763. See folio, 123.

764. See Pipe Roll, 8 John, cited Madox, I. 566.

765. See Rot. Pat., I. 76, cited Madox, I. 494. The date is 8
November, 1207.

766. See Bracton’s Note Book, case 134, and cf. case 1548.

767. Stephen, Hist. Crim. Law, I. 242 (following Foster, Crim.

Cases, 284–5), considers that it was abolished by 6 Edward I., stat.
1, c. 9. Coke, Second Institute, 42, thought it was abolished by 28
Edward III. c. 9 (which, however, seems not to refer to this at all),
and restored by 42 Edward III. c. 1 (abolishing all statutes contrary
to Magna Carta). Coke, Ibid., and Hale, Pleas of the Crown, II. 148,
considered that the writ was not obsolete in their day. Cf. Pollock
and Maitland, II. 587, n.

768. 3 Edward I. c. 11.

769. 6 Edward I., stat. 1, c. 9.

770. 13 Edward I. cc. 12 and 29.

771. See Rot. Parl., I. 323.

 772. 6 Edward I. c. 9. Appeals were extremely frequent towards
the close of the Plantagenet period, especially in the days of “the
Lords Appellant.” The proceedings which followed on appeal
sometimes took place before the Court of the Constable and Marshal
and sometimes before Parliament. In neither case were they popular.
One of the charges brought against Richard II. by the Parliament
which deposed him, was that “in violation of Magna Carta” (that is,
probably, of chapter 39) persons maliciously accused of treasonable
words were tried before the constable and marshal, and although
they might be “old and weak, maimed or infirm,” yet compelled to
fight against appellants “young, strong, and hearty.” See Rot. Parl.,
III. 420, cited Neilson, Trial by Combat, 193. On the other hand, the
Statute 1 Henry IV. c. 14 provided that no appeals should in future
be held before Parliament, but only before the Court of the
Constable and Marshal.

773. See 3 Henry VII. c. 1, s. 11. This statute emphasized how the
injured party, with the right of appeal, was “oftentimes slow and also
agreed with, and by the end of the year all is forgotten, which is
another occasion of murder.”

774. See Ashford v. Thornton, 1 B. and Ald. 405-461.

775. See 59 George III. c. 46.

 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 better 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, socage, 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 wardship. This is no imaginary case. The barons in 1258
complained of the practice and demanded redress.[782]

776. Cf. supra, pp. 66-70, and 75-7.

777. II. viii. s. 158.

778. Cf. Glanvill, VII. c. 10. “When any one holds of the king in
capite the wardship over him belongs exclusively to the king,
whether the heir has any other lords or not; because the king can
have no equal, much less a superior.”

779. Glanvill, VII. c. 10, had laid it down that burgage tenure
could not give rise to prerogative wardship.

780. See supra, p. 68.

781. See Bracton, folio 87 b. The Note Book, case 743, contains a
good illustration. The motive for these restrictions was clearly to
prevent injustice to mesne lords. It was probably, however, an
indirect consequence of Magna Carta that a similar rule came to be
applied where no mesne lord was injuriously affected. In 1231 a
certain Ralf of Bradeley died who had held two separate freeholds of
the Crown, (i) a small fee by petty serjeanty for which he rendered
twenty arrows a year, and (ii) land of considerable value held in
socage. The Crown took possession of both estates, on the
assumption that the admitted right of wardship over the petty
serjeanty brought with it a right of wardship over the socage lands
also (although these would have been exempt if they had stood
alone). The king sold his rights for 300 marks. Ralf’s widow claimed
the wardship of the socage lands, on the ground that these were of
much greater value than those held by serjeanty. Her argument was
upheld, and the 300 marks were refunded by the exchequer to the
disappointed purchaser. See Pipe Roll, 5 Henry III., cited Madox, I.
325-6.

782. See Petition of the Barons, article 2 (Select Charters, 383). C.

53 of Magna Carta reverts to prerogative wardship, granting redress,
although not summary redress, where John, or his father or brother,
had illegally extended it by occasion of socage, etc. See also supra,
p. 241.
 CHAPTER THIRTY-EIGHT.
Nullus ballivus ponat de cetero aliquem ad legem simplici loquela
sua, sine testibus fidelibus ad hoc inductis.
No bailiff for the future shall put any man to his “law” upon his own mere
word of mouth, without credible witnesses brought for this purpose.

The evident intention of this provision was to prevent irregularities

at the critical stage of a trial, when the lex appointed by the court
was attempted. This word lex, in its technical sense, may be
correctly applied to any form of judicial test, such as compurgation,
ordeal, or combat, the precise meaning required in each particular
case being determined by the context.[783] In this passage of Magna
Carta, it may be used in its widest connotation, but reasons will be
immediately adduced for the belief that ordeal was specially present
to the minds of those who framed it. Bailiffs, (the word is a wide
one, including certainly the sheriffs and their underlings, and
possibly also the stewards who presided in manorial courts)[784] had
evidently been guilty of irregularities which public opinion of the day
condemned. So much is clear: but authorities differ widely as to the
exact nature of the abuse which is here prohibited.
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]
The ordeal indeed was a solemn affair for which careful rules had
been laid down. Every precaution was taken against the sheriff
abusing his authority. His account of the indictment was checked by
the presence of subordinate officials as well as of these members of
the accusing jury. Moreover, lords of feudal courts, claiming this
franchise, could only exercise it under royal warrant. Henry, the
inventor of the system, sternly repressed all irregularities whether
those of his own bailiffs or of the stewards of private lords.[787]
The same rules of procedure prevailed under John, who was less
careful, however, than his father had been, to suppress irregularities.
In Magna Carta he promised amendment. The presence of witnesses
required by the Assize of Clarendon was once more insisted on as a
check upon the capricious or unfair use of the ordeal. The Charter of
1216 repeated this provision without alteration. In 1217, however, a
change occurred, which was undoubtedly a consequence of the
virtual abolition of the ordeal by the Lateran Council in 1215. The
framers of Henry’s second reissue, no longer so engrossed in
pressing matters of state as they had been in the previous year,
found leisure to adjust points of administrative detail. The simple
reference to ordeal was inappropriate now that new forms of trial
were taking its place. The justices, indeed, scarcely knew what test
they should appoint, when ordeal had been forbidden. They seem
sometimes to have resorted to compurgation and sometimes to
battle; but the sworn verdict of neighbours was fast occupying the
ground left vacant. The new Charter then made it clear that the
provisions applied in 1215 to ordeal were to be extended to the
other tests which were now being substituted for it. The “ad legem”
of John’s Charter became in the new version “ad legem manifestam
nec ad juramentum,” which might very well include battle and the
decisions of jurors, as well as ordeal.[788]
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 was good, by production of preliminary witnesses or by
some recognized equivalent).[790] This last of the three
interpretations thus suggested in the reign of Edward II. has its
modern adherents, as will immediately be shown; but the discussion
inaugurated in Plantagenet days has not yet received an
authoritative settlement. It was discussed in the Court of Common
Pleas so recently as 1700,[791] and historians at the present day differ
as widely as do the lawyers.
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 their authority
to forward suits to which they happened to be parties. In certain
circumstances, it would seem, the steward who presided as his
master’s representative over the manorial court claimed the right to
put a defendant to his proof, without first producing “suit” or its
equivalent, a privilege, however, which he could exercise only once
in every year. Royal bailiffs claimed this privilege, and that without
any similar restrictions. One object of Magna Carta, in this view, was
to reduce bailiffs to an equality with other litigants. No longer should
their bare assertion enable them to dispense with the formalities
which the court required from ordinary plaintiffs before putting their
adversaries to the risk of “a law” or proof.[793]
(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 indictment by the
accusing jury must always precede the “trial.” No bailiff ought to put
anyone to the water or the red-hot iron upon suspicion, or private
information.[796] Much may be said for this interpretation so far as it
goes; but the Assize of Clarendon and Magna Carta agree in
demanding something more. It was not enough that indictment
should precede ordeal; they required that some members of the
presenting jury who had made the accusation at the first diet should
accompany the sheriff before the justices at the final diet, there to
bear testimony both as to the nature of the crime and as to the fact
of the indictment. Before anyone could be put “to his law,” the
sheriff’s verbal report must be corroborated by the testimony of
representative jurors.

783. Dr. Stubbs (Const. Hist., I. 576) translates “lex” in this

passage by “compurgation or ordeal.” Pollock and Maitland (II. 604,
n.) explain that the word “does not necessarily point to unilateral
ordeal; it may well stand for trial by battle.” Thayer (Evidence, 199–
200) extends it even further, so as to embrace judicially appointed
tests of every kind—battle, ordeal of fire or water, simple oath, oath
with compurgators, charter, transaction witnesses, or sworn verdict.
Bigelow (Placita Anglo-Normannica, 44) cites from Domesday Book
cases where litigants offered proof omni lege or omnibus legibus,
that is, in any way the court decided. Sometimes lex had a more
restricted meaning; in the Customs of Newcastle-on-Tyne (Select
Charters, 112) it seems to mean compurgation as opposed to
combat.

784. Cf supra, c. 24. Coke, Second Institute, p. 44, following the

doubtful authority of the Mirror of Justices, extends it to all king’s
justices and ministers. The unqualified “ballivus” of this passage
should, perhaps, be contrasted with the “noster ballivus” of cc. 28
and 30.
 785. See article 12 where “eat ad aquam” is contrasted with “non
habeat legem” of article 13 (Select Charters, 144).

786. The “ad portandum recordationem comitatus et hundredi” of

the ordinance is exactly opposed to the “simplex loquela sua” of the
Charter.

787. Thus in 1166 (the year of the Assize of Clarendon) the “Soca”
of Alverton was amerced because of a man placed “ad aquam sine
serviente” (Pipe Roll, 12 Henry II., p. 49 of edition of Pipe Roll
Society). In 1185 the “villata” of Preston paid 5 marks for putting a
man “ad aquam sine waranto” (Pipe Roll, 31 Henry II., cited Madox,
I. 547). In the same year a certain Roger owed half a mark for being
present at an ordeal “sine visu servientum regis”: and heavy fines
were exacted from those who had put a man “injuste ad aquam”
(Ibid.). Apparently the bailiffs were sometimes described as the
king’s serjeants and sometimes as the sheriff’s serjeants: the same
Roll records fines for a man buried “sine visu servientum vicecomitis”
and for a robber hanged “sine visu servientis regis” (Pipe Roll, 31
Henry II.).

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

789. These appear as an appendix to the Year Book of 32-3

Edward I. (p. 516); but the handwriting is supposed to be of the
reign of Edward II.

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

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

793. This reading is emphasized by Brunner, Entstehung der

Schwurgerichte, 199-200.

794. See J. M. Rigg’s admirable preface to Sel. Pleas from Rolls of

Jewish Exchequer, p. xii., and cf. supra, c. 10.

795. See Ibid., p. 89, where the case is cited.

796. This reading is supported by Pollock and Maitland, I. 130, n.

There is no necessary inconsistency between the view here cited,
and that already cited from Ibid. II. 604. The same clause of Magna
Carta may have been aimed at irregularities of two kinds, in civil and
criminal pleas respectively.
 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.

This 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 before 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 differ 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 10th 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 which 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]

The Act of 1352, for example, after reciting the provision of Magna
Carta at present under discussion, insisted on the necessity of
“indictment or presentment of good and lawful people of the same
neighbourhood where such deeds be done.” Coke,[814] founding
apparently on the terms of these fourteenth-century statutes, makes
“per legem terrae” of the Charter equivalent to “by due process of
law” and that again to “by indictment or presentment of good and
lawful men,” thus finding the grand jury enshrined in Magna Carta.
The framers of the Petition of Right[815] read the same words as a
prohibition, not only of imprisonment “without any cause showed”
but also of proceedings under martial law, thus interpreting the aims
of King John’s opponents in the light of the misdeeds of King
Charles, and applying to the rude system established by Henry of
Anjou reforms more appropriate to the highly developed
administration of the Tudors.
 These glosses must be discarded; the words of John’s Charter
promised a threefold security to all the freemen of England. Their
persons and property were protected from the king’s arbitrary will by
the rule that execution should be preceded by a judgment—by a
judgment of peers—by a judgment according to the appropriate
time-honoured “test,” battle, compurgation, or ordeal.
(4) The meaning of “vel.” The peculiar use of the word “vel”
introduced an unfortunate element of ambiguity. No proceedings
were to take place "without lawful judgment of peers or by the law
of the land"—“or” thus occurring where “and” might naturally be
expected. Authorities on medieval Latin are agreed, however, that
“vel” is sometimes equivalent to et.[816] Comparison with the terms of
chapter 52 and with those of the corresponding Article of the Barons
places the matter almost beyond doubt. The 25th of the Articles of
the Barons had provided that all men disseised by Henry or Richard
should “have right without delay by judgment of their peers in the
king’s court,” giving no hint of any possible alternative to judicium
parium. Chapter 52 of the Charter, in supplementing the present
chapter, describes the evils complained of in both as acts of disseisin
or outlawry by the king “sine legale judicio parium suorum,” leaving
no room for ambiguity.
II. The Scope of the Protection afforded. The object of the barons
was to protect themselves and their friends against the king, not to
set forth a scientific system of jurisprudence: the judicium parium
was interposed as a barrier against prosecutions instituted by the
king, not against appeals of private individuals. Pleas following upon
accusations by the injured party were held in 1471 not to fall within
the words of Magna Carta.[817] This was a serious limitation; but as
against the Crown the scope of the protection afforded by the Great
Charter was very wide indeed. Care was taken that the three-fold
safeguard should cover every form of abuse likely to be practised by
John.
(1) Capiatur vel imprisonetur. If these two words were literally
interpreted, and the provision they embody strictly enforced, all
orderly government would be at an end. When a crime has been
committed, the offender must be arrested and provisionally
detained, without waiting for any judgment, whether of peers or
otherwise. A man accused of crime may, indeed, justly demand
three things: a trial before condemnation, that the trial be not too
long delayed, and that under some circumstances he should be
meanwhile released on bail. Magna Carta goes further, promising
complete exemption from arrest until judgment had been passed
upon him. Here the barons extorted a wider concession than could
possibly be enforced. Their excess of caution had led them to use a
loose and dangerously wide phrase, which ought not to be too
literally interpreted.[818]
(2) Aut disseisiatur. Avarice was one of the most frequent motives
of John’s oppressions: the whole machinery of justice was valued
primarily as an engine for transferring land and money to his
treasury. Crown tenants frequently found their estates appropriated
by the Crown as escheats. That this was one of their grievances to
which the barons attached supreme importance is shown in many
ways: by the care taken in the 25th of the Articles of the Barons and
in chapter 52 of the Charter to provide procedure for restoring to
their rightful owners estates of which they had been improperly
“disseised,”[819] and by the terms of certain writs issued by John after
the treaty at Runnymede, for example the letter of 19th June to his
half-brother, the Earl of Salisbury, explaining that peace had been
made on condition of the immediate restoration of all “lands, castles,
and franchises from which we have caused any one to be disseised
injuste et sine judicio.”[820]
Later versions of Magna Carta (beginning with that of 1217) are
careful to define the objects to be protected from disseisin: “free
tenements, franchises, and free customs.”[821] (a) Liberum
tenementum. “Free” tenements were freeholds as opposed to the
holdings of villeins. None of their belongings thus protected were
more highly valued by the barons than their feudal strongholds.[822]
Castles claimed by great lords as their own property are mentioned
in many writs of the period—for example, in that to the Earl of
Salisbury already cited—while chapter 52 of Magna Carta gives them
a prominent place among the “disseisins” to be restored. (b)
“Libertates” covered feudal rights and incidents of too intangible
nature to be appropriately described as “holdings.” In a sense, all
the rights secured by Magna Carta were “liberties”; but the word is
probably used here as equivalent to “franchises,” embracing feudal
jurisdictions, immunities, and privileges of various sorts, all treated
by medieval law as falling within the category of “property.” (c)
Consuetudines had two meanings, a broad general one and a
narrower financial one.[823] As the Charter of 1217 uses a proprietary
pronoun (no freeman shall be disseised of his free customs), it
probably refers to such rights as those of levying tolls and tallages.
These vested interests were of the nature of monopolies throughout
the territory of the lord who enjoyed them; and it follows that Coke,
in treating this passage as a text on which to preach the doctrine
that monopolies have always been illegal in England, aims unusually
wide of his mark. Commenting on the words “de libertatibus,” he
declares that “generally all monopolies are against this great charter,
because they are against the liberty and freedom of the subject and
against the law of the land.”[824] In this error he has been assiduously
followed.[825]
(3) Aut utlagetur, aut exuletur, aut aliquo modo destruatur. The
practice of placing outside the protection of the law such evildoers
as could not be brought to justice had its origin in those early days
when the existing machinery of law was inadequate to the work
required of it. With the progress of order and organization, the
criminal’s chances of evading justice became fewer; and the
declaration of outlawry, which could only be made in the county
court, tended to become a mere formality, preliminary to the
forfeiture of the outlaw’s lands and goods. The expedient was one
which recommended itself peculiarly to John’s genius; it was his
deliberate policy to terrify those with whom he had quarrelled, until
they fled the country; then to summon them three times before the
county court to answer the charges against them, knowing well that
they dared not face his corrupt and servile officers; and finally to
have them formally outlawed and their property seized. Such had
been the fate suffered by two of the baronial leaders, Robert Fitz
Walter and Eustace de Vesci, in the autumn of 1212.[826] Outlawry
was not always, however, a mere formality in John’s reign. The man
who had been outlawed was outside the pale of society; anyone
might slay him at pleasure; in the grim phrase of the day, he bore "a
wolf’s head" (caput lupinum), and might be hunted like a noxious
beast. A reward of two marks was offered for each outlaw’s head
brought to Westminster. This sum was paid in 1196 for the head of
William of Elleford.[827] The word “exiled” explains itself; and
commentators have very properly noted the care taken to widen the
scope of the clause by the use of the words “or in any other way
molested.”[828]
(4) “Nec super eum ibimus, nec super eum mittemus.” These
words have been frequently misinterpreted. They must be viewed in
the light of the historical incidents of the immediately preceding
years; and, so read, they present no difficulties, and leave no room
for ambiguity. Their object was to prevent John from substituting
violence for legal process; from taking the law into his own hands
and “going against them” with an army at his back, or “sending
against them” in similar wise. He must never again attack per vim et
arma men unjudged and uncondemned.
The meaning is plain. Yet Coke, following his vicious method of
assuming the existence, in some part of Magna Carta, of a warrant
for every legal principle established in his own day, has utterly
misled several generations of commentators. He maintained that
what John promised was to refrain from raising in his own courts
actions in which he was personally interested. In elaborating this
error, he drew a fine distinction between the court of King’s Bench,
otherwise known as coram rege, because the king was always in
theory present there, and other courts in which were present only
those to whom he had delegated authority by a writ “sent” to it.
Ibimus, he seems to think, applied in the former case; mittemus in
the latter. To quote his own words, "No man shall be condemned at
the king’s suit, either before the king in his bench, where the pleas
are coram rege (and so are the words, nec super eum ibimus, to be
understood) nor before any other commissioner, or judge
whatsoever (and so are the words, nec super eum mittemus, to be
understood), but by the judgment of his peers, that is, equals, or
according to the law of the land."[829] Coke is completely in error; it
was the use of brute force, not merely a limited form of legal
process, which John in these words renounced.
III. What Classes of Men enjoyed the Protection of Judicium
Parium? No “freeman” was to be molested in any of the ways
specified; but how far in the social scale did this description
descend? Coke claims the villeins as free for the purposes of this
chapter and of chapter I., while rejecting them for the purposes of
chapter 20.[830] His right to the status of a freeman has already been
disallowed,[831] and any possible ambiguity as to his share in the
benefits of the present chapter is removed by the deliberate words
of the revised version of 1217. Chapter 35 of that reissue, with the
object of making its meaning clearer, inserts after “disseisiatur” the
words (already discussed) “de libero tenemento suo vel libertatibus
vel liberis consuetudinibus suis.” Mr. Prothero suggests that this
addition implies an advance on the privileges secured in 1215:—"It is
worth while to notice that the words in which these liberties are
stated in §35 of the charter of 1217 are considerably fuller and
clearer than the corresponding declaration in the charter of 1215."
[832]
It is safer to infer that no change was here intended, but merely
the removal of ambiguity. If there is a change it is rather a
contraction than an extension, making it clear that only “free”
tenements are protected, and excluding carefully the property of
villeins and even holdings of villenagium (or unfree land) belonging
to freemen.[833] Care was thus taken to make it plain beyond any
reasonable doubt that no villein should have part or lot in rights
hailed by generations of commentators as the national heritage of all
Englishmen.[834]
IV. Reactionary Side of these Provisions. To insist rigorously that in
all cases a judgment of feudal peers, either in King’s Court or in
Court Baron, should take the place of a judgment by the officials of
the Common Bench and the King’s Bench, was to reverse one of the
outstanding features of the policy of Henry II. In this respect, the
present chapter may be read in connection with chapter 34. The
barons, indeed, were not strict logicians, and probably thought it
prudent to claim more than they intended to enforce.[835] Yet a real
danger lurked in these provisions; the clause was, after all allowance
has been made, a reactionary one, tending to the restoration of
feudal privileges and feudal jurisdictions, inimical alike to the Crown
and to the growth of really popular liberties. John promised that
feudal justice (as before the reforms of his father) should be
dispensed in feudal courts; and, if this promise had been kept, the
result would have been to check the development of the small
committees destined to become at no distant date the Courts of
King’s Bench and Common Pleas, and to revive the fast-waning
jurisdictions of the manorial courts on the one hand and of the
commune concilium on the other.[836]
V. The Genesis of the Chapter. The interpretation here given of
this famous chapter is emphasized by a comparison of its words with
certain earlier documents and events. The reigns of Richard and
John furnish abundant examples of the abuses complained of. In
1191 Prince John, as leader of the opposition against his brother’s
Chancellor, William Longchamp, concluded a treaty protecting
himself and his allies from the very evils which John subsequently
committed against his own barons. The words of this treaty of 1191
admirably bring out what Richard’s barons sought to secure, and
what they sought to escape. Longchamp conceded in Richard’s name
that the bishops and abbots, earls and barons, “vavassors” and free-
tenants, should not be disseised of their lands and chattels at the
will of the justices or ministers of the king, but that they should be
dealt with by judgment of the king’s court according to the lawful
customs and assizes, or by the king’s command.[837] The magnates
were not to be judged by officials whom they despised as their social
inferiors and mistrusted as the paid instruments of royal tyranny;
their claim to be tried by their equals in the king’s court was granted.
Now, the main subject of the arbitration, ending in the treaty from
which this excerpt has been taken, was the custody of certain
castles and estates. After the right to occupy each separate castle in
dispute had been carefully determined, provision was then made, in
the general words cited above, against this arrangement being
disturbed without a judgment of the curia regis. Disseisin, and
particularly disseisin of castles, was thus in 1191, as in 1215, a topic
of special prominence.
 Early in 1213 the king attempted to take vengeance upon his
opponents in a manner which they are not likely to have forgotten
two years later at Runnymede, and which probably influenced the
wording of the present chapter. John, resenting bitterly the attitude
of the northern barons who had refused alike to accompany him to
Poitou and to pay scutage, determined to take the law into his own
hands. Without summoning his opponents before a commune
concilium of his feudal tenants, without even a trial and sentence by
one of his Benches, without making any effort to investigate the
justice or injustice of their pleas for refusing, he set out with an
army to punish them. He had gone as far north as Northampton on
his mission of vengeance when he was overtaken by the archbishop
of Canterbury, a strong advocate of conciliation. On 28th August,
1213, Stephen Langton persuaded the king to defer forcible
proceedings until he had obtained a legal sentence in a formal Curia.
[838]
That John once again threatened recourse to violent methods
may be safely inferred from the words of a letter patent issued in
May, 1215, when both sides were armed for war. He proposed
arbitration, and promised a truce until the arbitrators had given their
award. The words of this promise are notable; since, not only do
they illustrate the procedure of August, 1213, but they agree closely
with the clause of Magna Carta under discussion. The words are:
—“Know that we have conceded to our barons who are against us,
that we shall not take or disseise them or their men, nor shall we go
against them per vim vel per arma, unless by the law of our
kingdom, or by the judgment of their peers in curia nostra.”[839]
Magna Carta repeats this concession in more general terms,
substituting “freemen” for the “barons” of the writ—an alteration
which necessitated the omission from the charter of the concluding
words of the writ, “in curia nostra”; because the peers of freemen,
other than barons, would be found, not among the barons in the
king’s court, but among the freeholders in the court baron.[840]
The words of Magna Carta, taken in connection with the treaty of
1191 and the writ of 1213, are thus seen to have a narrower
meaning than that extracted from them by subsequent
commentators.
 VI. Later History of “Judgment of Peers.” The claim made by the
barons at Runnymede was re-asserted in somewhat varying forms
by the same barons or by their descendants on many subsequent
occasions. The “judicium parium” was destined to enjoy a long and
brilliant career, and the interpretations put upon it by the Crown and
by the opposition respectively, while interesting in themselves, afford
strong confirmation of the somewhat restricted estimate of the
scope of the present chapter, which has been above enunciated.
(1) The baronial contention. The earls and barons, throughout the
reign of John’s unhappy son, attempted to place a broad
interpretation on the privilege secured to them by this chapter—
claiming that all pleas, civil and criminal (such at least as were raised
against them at the instance of the Crown) should be tried by their
fellow earls and barons, and not by professional judges of lower
rank.
(2) The royal contention. The Crown, on the other hand, while not
openly infringing the charter, tried to narrow its scope. The judges
appointed by the king to determine pleas coram rege, no matter
what their original status might be, became (so the Crown argued)
by such appointment, the peers of any baron or earl. This doctrine
was enunciated in 1233 when Henry III. and his justiciar, Peter des
Roches, denounced Richard, Earl Marshal, as a traitor, in a meeting
(colloquium) of Crown tenants held at Gloucester on 14th August of
that year. Thereafter, “absque judicio curiae suae et parium suorum,”
as Matthew Paris carefully relates,[841] Henry treated earl Richard and
his friends as outlaws, and bestowed their lands on his own Poitevin
favourites. An attempt was made, at a subsequent meeting held on
9th October, to have these proceedings reversed on the ground,
already stated, that they had taken place absque judicio parium
suorum.
The sequel makes clear a point left vague in Matthew’s narrative:
there had been a judgment previous to the seizure, but only a
judgment of Crown officials coram rege, not of earls and barons in
the commune concilium. The justiciar defended the action of the
government by a striking argument: “there were no peers in
England, such as were in the kingdom of France,” and, therefore,
John might employ his justices to condemn all ranks of traitors.[842]
Bishop Peter was here seeking to evade the provisions of Magna
Carta without openly defying them, and his line of argument was
that the king’s professional judges, however lowly born, were the
peers of an English earl or baron.[843] Neither the royal view nor the
baronial view entirely prevailed. A distinction, however, must be
drawn between criminal and civil pleas.
(3) Criminal pleas. Offenders of the rank of barons partially made
good their claim to a trial by equals; while all other classes failed. A
further distinction is thus necessary. (a) Crown tenants. The
conflicting views held by king and baronage here resulted in a
compromise. In criminal pleas, the Crown was obliged to recede
from the high ground taken by Peter des Roches in 1233.
Unwillingly, and with an attempt to disguise the fact of surrender by
confusing the issue, Bracton in theory and Henry III. in practice
admitted part of the barons’ demand, namely, “that in cases of
alleged treason and felony, when forfeiture or escheat was involved,
they should be judged only by earls and barons.”[844] This concession
was by no means based on the broad ground taken by the Charter.
Bracton does not admit that the king’s justices were not “peers” of
barons; but deduces their disability from the narrower consideration
that the king, through his officials, ought not to be judge in his own
behalf, since his interests in escheats might bias his judgment. This
is the reason why, from Bracton’s day to our own, “the privilege of
peers,” which gradually assumed its modern form, has never
extended to misdemeanours, since such convictions never involved
forfeiture or escheat to the Crown.
The manner of giving effect to this concession is noteworthy. The
judicium parium was secured to earls and barons in later reigns, not
merely by giving seats on the judicial bench to a few holders of
“baronies,” but by bringing the case before the entire body of earls
and barons in commune concilium. What the barons got at first was
“judgment” by peers. The actual “trial” was the “battle,” the fellow-
peers acting as umpires and enforcing fair play.[845] Although new
modes of procedure came to prevail, the Court of Peers continued its
control, and the judgment of peers gradually passed into the modern