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
The theory now generally accepted that the origin of trial by jury
must be sought in procedure introduced by the Norman Dukes and not in
any form of popular Anglo-Saxon institutions is ably maintained by
Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer,
_Evidence_, p. 7. Undoubtedly their conclusions are in the main
correct; but in their natural desire to remove misconceptions, they
are possibly guilty of some slight exaggeration. Trial by jury may
have had more than one root, and a full appreciation of the value of
the Norman contribution need not lead to the total neglect of the
Anglo-Saxon one. Accepted conclusions in this respect might profitably
be supplemented by the opinions of Dr. Hannis Taylor, _English
Constitution_, I. 308 and I. 323.
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The old English institution of the frithborh—the practice of binding
together little groups of neighbours for preservation of the peace—and
the custom of sending representatives of the villages to the Hundred
Courts, had alike accustomed the natives to corporate action and formed
in some sort precedents for what their Norman masters compelled them to
do, namely, to give their evidence on local matters jointly and on oath.
Further, one form of the jury—the jury of accusation—is clearly
foreshadowed (in spite of the complete breach of continuity in the
intervening period) by the directions given to the twelve senior thegns
of each Wapentake by a well-known law of Ethelred. Yet the credit of
establishing the jury system as a fundamental institution in England is
undoubtedly due to the Norman and Angevin kings, although they acted in
their own interests and not in those of their oppressed subjects, and
although they had no clear vision of the ultimate consequences of what
they did. The uses to which the _Inquisitio_ was put by William and his
sons in framing _Domesday Book_, collecting information about existing
laws, and dispensing justice, have already been discussed.[233]
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Footnote 233:
See _supra_, pp. 105-6.
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It was reserved for Henry II. to start the institution on a further
career of development; he it was who thus laid the foundations of the
modern jury system. Strangely enough, he did this not merely in one of
its forms, but in all three of them.
Public-domain text, read in full here on John Shaqi.
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