Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
One persistent error, universally adopted for many centuries, and even
now hard to dispel, is that the Great Charter granted or guaranteed
trial by jury.[231] This belief, however, which has endured so long and
played so prominent a part in political theory, is now held by all
competent authorities to be entirely unfounded. Not one of the three
forms of a modern jury trial had taken definite shape in 1215, although
the root principle from which all three subsequently grew had been in
constant use since the Norman Conquest. Henry II., indeed, had done much
towards developing existing tendencies in the direction of all three of
its forms, namely, of the grand jury, the petty criminal jury, and the
jury of civil pleas.
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Footnote 231:
The source of this error was the identification of the _judicium
parium_ of chapter 39 with jury trial. This mistake is fully refuted
_infra_ under that chapter.
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Magna Carta, embodying as it does many of the innovations of Henry of
Anjou, necessarily contains indications of the existence of these
tendencies. Yet, as these occur incidentally in various provisions of
unconnected chapters, and as they cannot readily be recognized, on
account of the technical language in which they are usually couched and
the apparently trivial points of legal procedure to which they relate,
it seems well to preface the separate consideration of each of them
under its appropriate chapter, by a short account of their mutual
relations. This will conduce to a clear understanding alike of trial by
jury and of the Great Charter itself.
Jury trial in each of the three forms in which it is known to modern
English law is able to trace an unbroken pedigree (though by three
distinct lines of descent) from the same ancestor, namely, from that
principle known as _recognitio_ or _inquisitio_, which was introduced
into England by the Normans, and was simply the practice whereby the
Crown obtained information on local affairs from the sworn testimony of
local men. While thus postulating a foreign origin for this “palladium
of English liberties,” we are afforded consolation by the remembrance of
a fact which some modern authorities are too much inclined to neglect,
namely, that the soil was prepared by Anglo-Saxon labour for its
planting.[232]
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Footnote 232:
Public-domain text, read in full here on John Shaqi.
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