[847]. The privilege was extended to peeresses by the statute 20 Henry VI. c. 9.
[848]. The Earl of Chester claimed it in 1236-7, and the Earl of Gloucester (in a special form as a lord marcher) in 1281. See Pollock and Maitland, I. 393, n.
[849]. Cf. supra, pp. [158-163].
[850]. The erroneous identification of judgment of peers with trial by jury can be found far back in legal history. Pollock and Maitland, II. 622-3, n., trace it to within a century of Magna Carta. "This mistake is being made already in Edward I.’s day; Y. B. 30-1 Edward I., p. 531.“ In spite of modern research the error dies hard. It appears, e.g., in Thomson, Magna Charta, 223, and in Taswell-Langmead, Const. Hist., 110. It was repeated only the other day by so high an authority as Dr. Goldwin Smith in his recently published work, ”The United Kingdom," I. 127, where he maintains that chapter 39 of Magna Carta “affirms the right of trial by jury.”
[851]. Pollock and Maitland, I. 152, n., and Pike, House of Lords, 169.
[853]. Cf. Pike, Ibid., 169. “From the time when trial by jury first commenced, either in civil or in criminal cases, to this present end of the nineteenth century, no jury ever did or could give judgment on any matter whatsoever.” The difference between the ancient and modern conceptions of judgment, however, must not be lost sight of.
[854]. See State Trials, III., p. 1, and S. R. Gardiner, History, VI. 214.
CHAPTER FORTY.
Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.