CHAPTER FORTY.
Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.
To no one will we sell, to no one will we refuse or delay, right or justice.
This chapter, like the preceding one with which it is so closely connected, has had much read into it by commentators which would have astonished its original framers. The application of modern standards to ancient practice has resulted in a complete misapprehension. The sums customarily received by John, as by his predecessors, at every stage of legal procedure, were not necessarily the wages of deliberate injustice. This is evident from several considerations. Thus litigants paid fines for redress against the Crown itself; in disputes between two private parties, the sum offered by the highest bidder was by no means always accepted; sometimes justice was rendered to one litigant gratis in spite of a heavy offer by the other. Many payments, then, were not bribes to an unjust judge, but merely expedients for hastening the law’s delays, or to ensure a fair hearing for a good plea, or to obtain some unusual but not unfair expedient, such as a peculiarly potent writ or the hearing of a case in the exchequer, which would ordinarily have been tried elsewhere. If the royal courts charged higher rates for justice than the feudal courts, they supplied a better article. When Henry of Anjou threw open the doors of his court to all freemen who chose to pay for writs, he found a ready market. These writs differed widely in price. Some from an early date were issued whenever applied for (writs de cursu) and at a fixed sum: others were granted only as marks of favour or after a bargain had been struck. Specially quick or cogent procedure had to be specially paid for. It would thus appear that the system of John was not open to the unqualified and violent condemnation which it usually receives. Hallam’s language is too sweeping when he says: “A law which enacts that justice shall neither be sold, denied, nor delayed, stamps with infamy that government under which it had become necessary.”[[855]] It was John’s abuse of the system, not the system itself, which called for condemnation; and the worst that could be said against it, according to medieval standards, was that it lent itself too readily to abuse.
If the barons really desired that John should continue to dispense royal justice in the new fields occupied by his father, but should do so without pecuniary return, their demands were unfair and even absurd; but probably they only wished a strict adherence to the customary rules and charges which they had come to expect as normal in connection with royal tribunals. The system, indeed, has many objectionable features to modern critics; but in the twentieth century, as in the thirteenth, justice cannot be had for nothing; and the would-be litigant with a good claim but a slender purse will be well advised to acquiesce in a small loss rather than incur the certainty of losing as much again in extra-judicial outlays, and the risk of losing many times more in the judicial expenses of a protracted litigation. The lack of free justice is a reproach which the men of to-day cannot with good grace fling at the administration of John.
As the evils complained of are often exaggerated, so also are the reforms promised by this chapter of Magna Carta. John is usually held to have agreed to the abolition of payments of every sort for judicial writs and other fees of court. Justice, unlike other valuable commodities, was, it would appear, to be obtained for nothing—an ideal never yet attained in any civilized community. A body of highly trained clerks could not be kept by the king to issue writs gratuitously to all who asked them, and a staff of judges, “who knew the law and meant to keep it,” to determine pleas which would bring in no return to the Crown.
The intention of those who framed this chapter was probably to secure a more moderate and reasonable measure of reform. Abuses of the system were to be redressed.[[856]] Unfortunately it was not easy to define abuses—to determine where legitimate payments stopped and illegitimate ones began. Prohibitive prices ought not to be charged for writs de cursu; but was the Crown to have no right to issue writs of grace on its own terms? Plaintiffs who had any special reason for haste frequently paid to have their suits heard quickly: was that an abuse?[[857]]
Whatever the intention may have been, the practical effect of the clause was not to secure the abolition of the sale of writs and justice. The practice under Henry III. has been described by our highest authority. "Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry’s early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover. Some distinction seems to have been taken between necessaries and luxuries. A royal writ was a necessary for one who was claiming freehold; it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ. Elaborate glosses overlaid the king’s promise that he would sell justice to none, for a line between the price of justice and those mere court fees, which are demanded even in our own day, is not easily drawn. That the poor should have their writs for nothing, was an accepted maxim."[[858]]
Probably the practice before and after 1215 showed few material differences. Some of the more glaring abuses of the system were checked: that was all.[[859]] Parliament in subsequent reigns had frequently to petition against the sale of justice in breach of Magna Carta.[[860]] The king usually returned a politic answer, but was careful never to surrender his right to exact large sums for writs of grace. Richard II., for example, replied: “Our lord the king does not intend to divest himself of so great an advantage, which has been continually in use in Chancery as well before as after the making of the said charter, in the time of all his noble progenitors who have been kings of England.”[[861]]
It is thus evident that Magna Carta did not put down the practice of charging heavy fees for writs. Yet this chapter, although so frequently misunderstood and exaggerated, is still of considerable importance. It marks, for one thing, a stage in the process by which the king’s courts gradually outdistanced all rivals. In certain provinces, at least, royal justice was left in undisputed possession. In these the grievance was not that there was too much royal justice, but that it was sometimes delayed or denied. Here, then, even in the moment of John’s most bitter humiliation we find evidence of the triumph of the policy of the Crown inaugurated half a century earlier by his far-seeing father.
It is not to such considerations as these, however, that this chapter owes the prominence usually given to it in legal treatises; but rather to the fact that it has been broadly interpreted as a universal guarantee of impartial justice to high and low; and because when so interpreted it has become in the hands of patriots in many ages a powerful weapon in the cause of constitutional freedom. Viewing it in this light, Coke throws aside his crabbed learning and concludes with what is rather a rhapsody than a lawyer’s commentary: “as the gold-finer will not out of the dust, threads, or shreds of gold, let pass the least crumb, in respect of the excellency of the metal; so ought not the learned reader to pass any syllable of this law, in respect of the excellency of the matter.”[[862]]
[855]. Middle Ages, II. 451.
[856]. Cf. Madox, I. 455, "By nulli vendemus were excluded the excessively high fines: by nulli negabimus, the stopping of suits or proceedings, and the denial of writs: by nulli differemus such delays as were before wont to be occasioned by the counterfines of defendants (who sometimes would outbid the plaintiffs) or by the prince’s will."
[857]. Fines for this purpose were frequent under Henry II. and his sons. Madox, I. 447, cites many examples. Thus in 1166 Ralph Fitz Simon paid two marks “for speeding his right” (pro recto suo festinando). The practice continued under Henry III. in spite of Magna Carta. Bracton’s Note Book cites a hard case (No. 743): Henry III. was claiming prerogative wardship where it was illegal under c. 37 of Magna Carta (q. v.). The court might have delayed hearing the mesne lord’s plea until the wardship was ended; but he paid five marks pro festinando judicio suo. The fine was said to be given “willingly” (sponte). Did the use of this word make possible an evasion of c. 40 of the Charter?
[858]. Pollock and Maitland, I. 174. Cf. Ibid., II. 204, and authorities cited.
[859]. Madox, I. 455, says: “And this clause in the great Charters seems to have had its effect. For ... the fines which were paid for writs and process of law were more moderate after the making of those great Charters than they used to be before.”
[860]. Instances are collected by Sir T. D. Hardy in Rot. de oblatis, p. xxi. See also Stubbs, Const. Hist., II. 636-7.
[861]. Rot. Parl., III. 116, cited Stubbs, Const. Hist., II. 637.
[862]. Second Institute, 56.