[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[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.