Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.
We will not sell, or deny, or delay right or justice to anyone.
Clause 40 is the shortest in the whole of Magna Carta – just nine Latin words. But it covered a wide range of judicial activity, along with the king’s capacity to exploit and misuse it. Essentially it required the king to step back from the position of advantage which he had long occupied in his capacity as the realm’s supreme upholder of law and provider of justice, a position which had, indeed, become potentially more advantageous in the late twelfth century thanks to Henry II’s reforms and innovations. Instead he was to forego the opportunities which it gave him to manipulate the administration of justice to harm his enemies and benefit both his friends and himself.
The ways in which Henry II and his sons used the processes of the law to their own political, administrative or financial advantage can be seen most clearly in the case of King John, not least because the records from his reign are much fuller than those from the time of his two predecessors. They show him taking a close interest in the proceedings of his courts (one of which, the court coram rege, originated in his reign and very possibly on his own initiative), and provide evidence for his capacity for the creative and disinterested administration of justice. However, the uneven development of legal processes in the years on either side of 1200 meant that great lords (essentially tenants-in-chief, holding their lands directly from the crown) did not yet have access to all the legal remedies available to lesser men, which in turn gave the king a good deal of latitude in his handling of disputes between them. Although John did not always take advantage of this, there were occasions when he did so. He could be partisan in his decisions, or take money to favour one side at the expense of the other, and he might use his control of the courts as an instrument of revenge – in 1210 he was said to have ordered his officials to deny justice to the Cistercian abbots who had just refused him a grant of money. In some cases involving powerful men, political considerations were allowed to take precedence over legal ones. Robert FitzWalter and Fulk FitzWarin, who both later rebelled aganst the king, both appear to have suffered in this way, either losing inherited property and rights or having to pay for what should have been theirs for nothing. In the dispute in 1200 between two important Yorkshire barons, William de Mowbray and Robert de Stuteville, John accepted proffers of money from both parties and then presided over a settlement highly favourable to Stuteville, but still required Mowbray to pay what he had promised. An action over land in Cumberland ended in 1206 when the defendants, Robert de Courtenay and his wife, proffered over £200 for the disputed property, whereupon the plaintiff, Alexander of Caldbeck, abandoned the case, `as it does not please the king that he should have it.’.
John’s weakness in the administration of justice, as in so many things, was his lack of consistency. He was capable of providing good justice, and often did so, but his impartiality could never be relied on. There are signs that in the early thirteenth century the idea of objective justice, administered without regard to the interests of the king who controlled its processes, was gaining ground, not least among the royal justices. Clause 40 (which is still on the statute book) constituted an important step towards the eventual realisation of that process.
Clause 46 (The 1215 Magna Carta)
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.