(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. The mistake probably owes its origin to a tendency of later generations 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; and nothing in Magna Carta (unless it were this clause) to correspond with trial by jury: therefore they identified the two. Mr. Reeves, Dr. Gneist, and other writers long ago exposed this error, but the most conclusive refutations are those given by Prof. Maitland and Mr. Pike. The arguments of these writers are of a somewhat technical nature; but their importance is far–reaching. They seem to be mainly three:—

(a) The criminal petty jury cannot be intended in this chapter, since it had not been invented in 1215: 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 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 a specific question. The insurgent barons demanded more than this: they asked a decision on the whole case. 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.