(4) Civil pleas. Various attempts were made by the barons as a class, or by its influential members, to make good a claim to judicium parium in civil cases.[[848]] The chief anxiety, perhaps, of the men of 1215 was to save their estates and castles from disseisin consequent on such pleas. Yet the barons’ efforts in this direction were entirely unsuccessful. The House of Lords (except in cases involving the dignity or status of a peer) has never claimed to act as a court of first instance in civil cases to which a peer was a party. Noble and commoner are here perfectly on a level. No “peer of the realm” has for many centuries asked to plead before a special court of his peers in any ordinary non-criminal litigation, whether affecting his real or his personal estate.
VII. Erroneous Interpretations. The general tendency to vagueness and exaggeration has already been incidentally discussed. Two mistakes of unusual persistence require more detailed notice.
(1) The identification of judicium parium with trial by jury. The words of the present chapter form the main, if not the sole, ground on which this traditional error has been based.[[849]] The mistake probably owes its origin to a not unnatural tendency of later generations of lawyers to explain what was unfamiliar in the Great Charter by what was familiar in their own experience. They found nothing in their own day to correspond with the judicium parium of 1215, so far at least as affected those who were not Crown tenants; they found nothing in Magna Carta (unless it were this clause) to correspond with their own trial by jury: therefore they identified the two, interpreting the present chapter as a general guarantee of the right to trial by jury.[[850]] Mr. Reeves, Dr. Gneist, and other writers long ago exposed this error, but the most conclusive refutations are those recently given by Prof. Maitland and Mr. Pike. The arguments by which these writers prove that “judgment by peers” is one thing and the “verdict of a jury” quite a different thing are of a somewhat technical nature;[[851]] but as their importance is far-reaching they must be explained, however briefly. They seem to be mainly three in number:
(a) The criminal petty jury cannot here be intended, since it had not been invented in 1215:[[852]] to introduce trial by jury into John’s great Charter is an unpardonable anachronism. (b) The barons would have repudiated trial by jury if they had known it. They desired (here as in chapter 21) that all questions affecting them should be “judged” before fellow barons, and in the normal case, by the duellum. They would have scorned to submit to the verdict of “twelve good men” of their own locality. Their inferiors must have no voice in determining their guilt or innocence. This sentiment was shared by the tenants of mesne lords. (c) Judgment and verdict were essentially different. The function of a petty jury (after it had been invented) was to answer the specific question put to it. The insurgent barons demanded more than this: they asked a decision on the whole case.[[853]] The “peers” who judged presided over the proceedings from beginning to end, appointing the proof they deemed appropriate, sitting as umpires while its fulfilment was essayed, and giving a final decision as to success or failure therein.
(2) Magna Carta and arbitrary commitment. A second erroneous theory has still to be discussed. The Petition of Right, as already stated, treats Magna Carta as prohibiting the Crown from making arrests without a warrant showing the cause of detention; and the earlier commentators further interpreted it as making all acts of arbitrary imprisonment by the Crown absolutely illegal, although strong reasons of state might urge the detention of dangerous individuals. Hallam, for example, declares that from the era "of King John’s Charter, it must have been a clear principle of our institutions that no man can be detained in prison without trial." Yet every king of England from the days of John Lackland to those of Charles Stewart, claimed and exercised the prerogative of summarily committing to gaol any man suspected of evil designs against the Crown or Commonwealth. Strong kings used this power freely to remove those whom they wished to silence. Frequently no cause of arrest was mentioned, no explanation given, except the words "by the king’s command." During all these centuries the legality of such procedure was never challenged as contrary to Magna Carta, or on any other ground. Even the famous protest of the judges of Queen Elizabeth, asserting the existence of legal limits to the royal prerogative of commitment, proves the lawfulness of the general practice to which it makes comparatively insignificant exceptions. Such rights inherent in the Crown, dangerous undoubtedly to liberty but yet perfectly legal, were never seriously challenged until the struggle between Charles I. and his parliaments had fairly begun. Then it was that old precedents were eagerly sought out and put to new uses. Then only was it suggested, for the first time, that Magna Carta was intended to prohibit arbitrary commitments at the command of the Crown. Such was the argument deliberately put forth in 1627 during the famous proceedings known sometimes as Darnell’s case and sometimes as the case of the Five Knights. Heath, the Attorney-General, easily repelled this contention: “the law hath ever allowed this latitude to the king, or his privy council, which are his representative body, in extraordinary cases to restrain the persons of such freemen as for reasons of state they find necessary for a time, without for this present expressing the causes thereof.”[[854]] The parliamentary leaders, however, too grimly in earnest to be deterred by logic, were far from abandoning their error because Heath had unanswerably exposed it. They embodied it, on the contrary, in the Petition of Right, which condemned the Crown’s practice of imprisoning political offenders “without any cause showed” (or only per speciale mandatum regis) as contrary to the tenor of Magna Carta—an effective contention as a political expedient, but essentially unsound in law.
[797]. The corresponding provision of the Articles of the Barons (29) adds the word “vi” (“nec rex eat vel mittat super eum vi”). The idea of open violence, thus clearly indicated, is expressed in contemporary documents by the fuller phrase, per vim et arma. The accepted translation, as contained in the Statutes at Large, “nor will we pass upon him nor condemn him,” is thus inadequate. The editors of the Statutes of the Realm, I. 117, suggest “deal with him” as an alternative translation. Coke, it will be seen infra, is the original source of the error which connects this “going” and “sending” with legal process.
[798]. See, e.g., Coke, Second Institute, 55.
[799]. Thus Blackstone, Commentaries, IV. 424: “It protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land.” Hallam, Middle Ages, II. 448, speaking of cc. 39 and 40 together, says they “protect the personal liberty and property of all freemen by giving security from arbitrary imprisonment and arbitrary spoliation.” Creasy, English Constitution, p. 151, n.: “The ultimate effect of this chapter was to give and to guarantee full protection for person and property to every human being that breathes English air.”
[800]. The same grim tradition applied to Lidford as to Jedburgh: