(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.