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That celebrated "bill of rights" has not all come down to us, but researches of the learned have made it certain that it contained no mention of trial by jury, which, indeed, was unknown to its authors. The words judicium parium meant to them something entirely different the judgment of the entire community of freemen.
Here the words used are these: "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur nec ut1agetur nec exuletur nec aliquo modo destruatur nec rex eat vel mittat super eun vi nisi per judicium pariurn suorum vel per legem terrae." "Per legale judicium parium suorum." In giving this interpretation, I leave out, for the present, the word legale, which will be defined afterwards.
The words of the charter are as follows: "Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec eos nec homines suos capiemus, nec disseisiemus nec super eos per vim vel per arma ibimus nisi per legem regni nostri vel per judicium parium suorum in curia nostra donec consideratio facta fuerit," &c;., &c;.
The word per, in the phrase "per judicium parium suorum," of course means precisely what it does in the next phrase, "per legem terrae;" where it obviously means according to, and not by, as it is usually translated.
Tell him that the men who fought on either side at Hastings' plain cared nothing for national but everything for feudal allegiance; that lex terrae means the local custom of ordeal and not the "law of the land"; tell him that judicium parium means the right of a noble to be judged by nobles, and has nothing to do with the jury system; tell him that Magna Charta was certainly drawn up before the meeting at Runnymede; that not until the Lancastrians did English kings speak English; that Oliver Cromwell owed his position to the enormous wealth of the Williamses, of whom had he not been a cadet, he would never have been known; tell him that the whole force of the Parliament resided in the squires and that the Civil Wars turned England into an oligarchy; tell him the exact truth about the infamy of Churchill; tell him what proportion of Englishmen during the American War were taxed without being represented; tell him what proportion of Washington's troops were of English blood; tell him any one illuminating and true thing about the history of his country, and the novelty will so offend him that a direct insult would have pleased him better.
Hallam, who says:"Nisi per legale judicium parium suorum, vel per legem terra;. Several explanations have been offered of the alternative clause; which some have referred to judgment by default, or demurrer; others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party's goods or person may be taken.
The words "per judicium parium suorum," according to the sentence of his peers, imply that the jury fixed the sentence in some cases tried by them; and if they fixed the sentence in some cases, it must be presumed they did in all, unless the contrary be clearly shown.
Memnon advised the satraps to avoid fighting on the land, and to employ the fleet for aggressive movements in Macedonia and Greece, but Arsites rejected his advice. The Persians took post on the river Granicus, near the town of Parium, on one of the declivities of Mount Ida.
The true meaning of the phrase, per judicium parium suorum, is, according to the sentence of his eers. The word judicium, judgment, has a technical meaning in the law, signifying the decree rendered in the decision of a cause. In civil suits this decision is called a judgment; in chancery proceedngs it is called a decree; in criminal actions it is called a sentence, or judgment, indifferently.
Thus, in a criminal suit, "a motion in arrest of judgment," means a motion in arrest of sentence. In cases of sentence, therefore, in criminal suits, the words sentence and judgment are synonymous terms. They are, to this day, commonly used in law books as synonymous terms. And the phrase per jndicium parium suorum, therefore, implies that the jury are to fix the sentence.
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