[827]. See Pipe Rolls, 7 Richard I., cited by Madox, I. 201.
[828]. E.g., Coke, Second Institute, p. 48.
[829]. See Second Institute, page 46. John Reeves, History of English Law, I. 249 (third ed.), while condemning Coke, gives an even more strained interpretation of his own, founded on the chance juxtaposition of the two verbs in one passage of the Digest. On quite inconclusive grounds he draws the inference that both words refer exclusively to diligence against "goods and chattels"—diligence against the person, and diligence against landed estate having previously been treated in words specially appropriate to each of them respectively. Dr. Lingard, History of England, III. c. 1, deserves praise as the first commentator who took the correct view.
[830]. Second Institute, pp. 4, 27, and 45.
[831]. See supra, c. 20.
[832]. Simon de Montfort, 17, n. Cf. Blackstone, Great Charter, xxxvii., “the more ample provision against unlawful disseisins.”
[833]. Cf. Pollock and Maitland, I. 340, n.
[834]. Cf. supra, p. [142]. Other verbal changes in the charter of 1217 show the same care to exclude the villeins. E.g. c. 16 leaves the king’s demesne villeins strictly “in his mercy,” that is, liable to amercement without any reservation.
[835]. Mr. G. H. Blakesley in an able article in the Law Quarterly Review, V. 125, goes so far as to reduce the entire chapter to an attempt to protect feudal justice in its struggle with royal justice. "It may reasonably be suspected that cap. 39 also was directed merely to maintain the lord’s court against Crown encroachments."
[836]. Mr. Pike, House of Lords, 170–4, shares this view of the reactionary nature of the clause, although he considers that the claim to judicium parium by a Crown tenant might be satisfied by the presence of one or more fellow barons among the judges of the “Benches,” and did not necessarily involve a full meeting of the commune concilium summoned in the accustomed way. Ibid., p. 204. If the “judgment” of the full court was requisite (and, in spite of the high authority of Mr. Pike, there is much to be said for that contention), then the reactionary feudal tendency is even more prominent. This feudal tendency is emphasized by the consideration that private franchises and private castles bulked prominently among the rights of property protected from arbitrary seizure by the king.