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
(3) The Charter speaks of the two justices and of the four county
knights, but says nothing of the twelve knights from the immediate
neighbourhood of the disputed property. The omission has no special
significance. Magna Carta had no directions to convey on this matter,
and therefore it kept silence; but the presence of the twelve must have
been presumed, since their verdict formed the essential feature of the
entire procedure.[567] The twelve formed the jury, and the two justices
were the judges, while the chief duty of the four was to select the
twelve. The chapter directed the justices “to hold the assizes along
with the four knights”; but it does not appear whether the latter were
to sit as local assessors of the court, or to serve along with the
twelve recognitors, or to act as a link between the two.
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Footnote 567:
See Assize of Northampton, c. 4.
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(4) One fact about them was clearly stated, namely, the mode of their
appointment. The four knights were to be “elected” in the county court
(_cum quatuor militibus ... electis per comitatum_), and much emphasis
has been laid on this provision by historians searching for ancient
prototypes of modern institutions. These knights have been warmly
welcomed as county magistrates elected on a more or less extended
suffrage.[568]
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Footnote 568:
See, _e.g._ Stubbs, _preface_ to R. Hoveden, IV. xcviii.; Blackstone,
_Great Charter_, xxxvi.; Medley, _Engl. Const. History_, 130.
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As the provisions of the reissue of 1217 are more carelessly expressed,
and as in particular they contain no word implying “election,” it has
been assumed that a change in the mode of appointment was intended; that
a step tentatively taken towards representative local government in 1215
was deliberately retraced two years later.[569] “_Electus_” however, in
medieval Latin was a vague word, differing widely from the ideas usually
associated with a modern “election,” and applied indiscriminately to all
methods of appointment or selection, even to the proceedings of officers
engaged by Edward I. to compel the enlistment of the best soldiers
available for his army. The twelve knights were to be “appointed,” not
“elected,” in the county court, and it remains doubtful whether the
sheriff, the magnates, or the body of the suitors, would have secured
the chief share in the appointment. No evidence is forthcoming that any
special importance was attached in 1217 to the use of the word
“_electus_,” and its omission may have been due to inadvertence.
-----
Footnote 569:
Blackstone, _Ibid._, points out these changes in the charter of 1217:
“the leaving indefinite the number of the knights and the justices of
assize, the abolishing of the election of the former, and the reducing
the times of taking assizes to once in every year.”
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Public-domain text, read in full here on John Shaqi.
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