(2): The royal contention.

The claim made by the barons at Runnymede was re–asserted on subsequent occasions. The phrase “judicium parium” which, probably in consequence of its use in Magna Carta, sprang into “sudden and extraordinary prominence” was destined to have a long and distinguished career. Mr. Harcourt thinks that “it was the obscurity of the chapter when reissued, the fact that it might mean so many things, which supplied the congenial soil wherein the principle of trial of peers was able to expand and grow to maturity,” when “the Charter as a whole became the Bible of the constitution.”

The earls and barons, throughout the reign of John’s unhappy son, attempted to place a broad interpretation on the privilege secured to them by this chapter—claiming that all pleas, civil and criminal (such at least as were raised against them at the instance of the Crown) should be tried by their fellow earls and barons, and not by professional judges of lower rank. William de Braose in 1208 had declared himself ready to satisfy John “secundum judicium curiae suae et baronum parium meorum.”

The Crown, on the other hand, while not openly infringing the Charter, tried to narrow its scope. Judges appointed to determine pleas coram rege, no matter what their original status might be, became (so the Crown argued) by such appointment, the peers of any baron or earl. This doctrine was enunciated in 1233 when Peter des Roches denounced Richard, Earl Marshal, as a traitor, in a meeting (colloquium) of crown–tenants held at Gloucester on 14th August of that year. Thereafter, “absque judicio curiae suae et parium suorum,” as Matthew Paris carefully relates, Henry treated Earl Richard and his friends as outlaws, and bestowed their lands on his own Poitevin favourites. An attempt was made, at a subsequent meeting held on 9th October, to have these proceedings reversed on the ground, already stated, that they had taken place absque judicio parium suorum.

The sequel makes clear a point left vague in Matthew’s narrative: there had been a judgment previous to the seizure, but only a judgment of Crown officials coram rege, not of earls and barons in commune concilium. The justiciar defended the action of the government by a striking argument: “there were no peers in England, such as were in the kingdom of France,” and, therefore, John might employ his justices to condemn all ranks of traitors. Bishop Peter was here seeking to evade the provisions of Magna Carta without openly defying them, and his line of argument was that the King’s professional judges, however lowly born, were the peers of an English earl or baron. Neither the royal view nor the baronial view entirely prevailed. A distinction, however, must be drawn between criminal and civil pleas.