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.

Footnote 852:

Cf. _supra_, p. 161.

Footnote 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.

(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.

Footnote 854:

See _State Trials_, III., p. 1, and S. R. Gardiner, _History_, VI. 214.