Part 2 (1/2)

The most common translation of these words, at the present day, is as follows:

”No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed, _nor will we (the king) pa.s.s upon him, nor condemn him_, unless by the judgment of his peers, or the law of the land.”

”_Nec super eum ibimus, nec super eum mittemus._”

There has been much confusion and doubt as to the true meaning of the words, ”_nec super eum ibimus, nec super eum mittemus_.” The more common rendering has been, ”_nor will we pa.s.s upon him, nor condemn him_.” But some have translated them to mean, ”_nor will we pa.s.s upon him, nor commit him to prison_.” c.o.ke gives still a different rendering, to the effect that ”No man shall be condemned at the king's suit, either before the king in his bench, nor before any other commissioner or judge whatsoever.”[15]

But all these translations are clearly erroneous. In the first place, ”_nor will we pa.s.s upon him_,”--meaning thereby to decide upon his guilt or innocence _judicially_--is not a correct rendering of the words, ”_nec super eum ibimus_.” There is nothing whatever, in these latter words, that indicates _judicial_ action or opinion at all. The words, in their common signification, describe _physical_ action alone. And the true translation of them, as will hereafter be seen, is, _”nor will we proceed against him,” executively_.

In the second place, the rendering, ”_nor will we condemn him_,” bears little or no a.n.a.logy to any common, or even uncommon, signification of the words ”_nec super eum mittemus_.” There is nothing in these latter words that indicates _judicial_ action or decision. Their common signification, like that of the words _nec super eum ibimus_, describes _physical_ action alone. ”_Nor will we send upon (or against) him_,”

would be the most obvious translation, and, as we shall hereafter see, such is the true translation.

But although these words describe _physical_ action, on the part of the king, as distinguished from judicial, they nevertheless do not mean, as one of the translations has it, ”_nor will we commit him to prison_;”

for that would be a mere repet.i.tion of what had been already declared by the words ”_nec imprisonetur_.” Besides, there is nothing about prisons in the words ”_nec super eum mittemus_;” nothing about sending _him_ anywhere; but only about sending (something or somebody) _upon_ him, or _against_ him--that is, _executively_.

c.o.ke's rendering is, if possible, the most absurd and gratuitous of all.

What is there in the words, ”_nec super eum mittemus_” that can be made to mean ”_nor shall he be condemned before any other commissioner or judge whatsoever_?” Clearly there is nothing. The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of a _judicial_ power, by the king, or his judges, which is nowhere given them.

Neither the words, ”_nec super eum ibimus, nec super eum mittemus_,” nor any other words in the whole chapter, authorize, provide for, describe, or suggest, any _judicial_ action whatever, on the part either of the king, or of his judges, or of anybody, _except the peers, or jury_.

There is nothing about the king's _judges_ at all. And there is nothing whatever, in the whole chapter, _so far as relates to the action of the king_, that describes or suggests anything but _executive_ action.[16]

But that all these translations are certainly erroneous, is proved by a temporary charter, granted by John a short time previous to the Great Charter, for the purpose of giving an opportunity for conference, arbitration, and reconciliation between him and his barons. It was to have force until the matters in controversy between them could be submitted to the Pope, and to other persons to be chosen, some by the king, and some by the barons. The words of the charter are as follows:

”Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium suorum in curia nostra donec consideratio facta fuerit,” &c., &c.

That is, ”Know that we have granted to our barons who are opposed to us, that we will neither arrest them nor their men, nor disseize them, _nor will we proceed against them by force or by arms_, unless by the law of our kingdom, or by the judgment of their peers in our court, until consideration shall be had,” &c., &c.

A copy of this charter is given in a note in Blackstone's Introduction to the Charters.[17]

Mr. Christian speaks of this charter as settling the true meaning of the corresponding clause of Magna Carta, on the principle that laws and charters on the same subject are to be construed with reference to each other. See _3 Christian's Blackstone_, 41, _note_.

The true meaning of the words, _nec super eum ibimus, nec super eum mittemus_, is also proved by the ”_Articles of the Great Charter of Liberties_,” demanded of the king by the barons, and agreed to by the king, under seal, a few days before the date of the Charter, and from which the Charter was framed.[18] Here the words used are these:

”Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat vel mittat super eum vi_ nisi per judicium parium suorum vel per legem terrae.”

That is, ”The body of a freeman shall not be arrested, nor imprisoned, nor disseized, nor outlawed, nor exiled, nor in any manner destroyed, _nor shall the king proceed or send (any one) against him_ WITH FORCE, unless by the judgment of his peers, or the law of the land.”

The true translation of the words _nec super eum ibimus, nec super eum mittemus_, in Magna Carta, is thus made certain, as follows, ”_nor will we (the king) proceed against him, nor send (any one) against him_ WITH FORCE OR ARMS.”[19]

It is evident that the difference between the true and false translations of the words, _nec super eum ibimus, nec super eum mittemus_, is of the highest legal importance, inasmuch as the true translation, _nor will we (the king) proceed against him, nor send (any one) against him by force or arms_, represents the king only in an _executive_ character, _carrying the judgment of the peers and ”the law of the land” into execution_; whereas the false translation, _nor will we pa.s.s upon him, nor condemn him_, gives color for the exercise of a _judicial_ power, on the part of the king, to which the king had no right, but which, according to the true translation, belongs wholly to the jury.

”_Per legale judicium parium suorum._”

The foregoing interpretation is corroborated, (if it were not already too plain to be susceptible of corroboration,) by the true interpretation of the phrase ”_per legale judicium parium suorum_.”

In giving this interpretation, I leave out, for the present, the word _legale_, which will be defined afterwards.

The true meaning of the phrase, _per judicium parium suorum_, is, _according to the sentence of his peers_. The word _judicium, judgment_, has a technical meaning in the law, signifying the decree rendered in the decision of a cause. In civil suits this decision is called a _judgment_; in chancery proceedings it is called a _decree_; in criminal actions it is called a _sentence_, or _judgment_, indifferently. Thus, in a criminal suit, ”a motion in arrest of _judgment_” means a motion in arrest of _sentence_.[20]

In cases of sentence, therefore, in criminal suits, the words _sentence_ and _judgment_ are synonymous terms. They are, to this day, commonly used in law books as synonymous terms. And the phrase _per judicium parium suorum_, therefore, implies that the jury are to fix the sentence.