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
With these caveats, however, the three systems may be regarded, in some
measure, as following one another in the order named:—popular justice,
feudal justice, royal justice.
II. _Legal Procedure._ The procedure adopted in litigation in
Anglo-Saxon and Norman times was similar in essentials in all three
classes of tribunals, and differed materially from the practice of
courts of law at the present day. Some knowledge of the more glaring
contrasts between ancient and modern procedure may here be profitably
discussed, not only on account of the interest inherent in the subject,
but also because it will conduce to an understanding of several
otherwise obscure provisions of Magna Carta.
Avoiding technical language, and eliminating special procedure peculiar
to any one court or country, the principal stages in a normal litigation
in a modern court of law may be given briefly as follows:
(1) On the complaint of the party aggrieved—the plaintiff—a summons, or
writ, is issued by an officer of the court. Proceedings are opened by
the command addressed to the defendant to appear in court and answer
what is alleged against him.
(2) Each party lodges written statements of his facts and pleas—that is,
of the circumstances of the case as they appear to him (or such of them
as he hopes to bring evidence to prove)—on which he founds his claim or
his defence, and of the legal principles he intends to deduce from these
circumstances. When these statements of facts and pleas have been
revised and adjusted, the complete data are now before the court; each
party has finally stated what he considers essential to his case.
(3) Proof is, in due course, led; that is, each party is afforded an
opportunity of proving such facts as he has alleged (and as require
proof through the denial of his opponent). This he may do by documents,
witnesses, or otherwise. Each party has the further privilege of shaking
his opponent’s evidence by cross-examination.
(4) The next important stage is the debate, the main object of which is
to establish by legal arguments the pleas founded on; to deduce the
legal consequences inherent in the facts which have been proved.
(5) Finally, the judge gives his decision. He has to determine, after
weighing the evidence led by either party, what facts have really been
established, and how far the various pleas of plaintiff and defendant
respectively are implied in these facts. A considerable amount of
thought and reasoning of such a kind as can be successfully performed
only by a highly trained legal mind is thus necessary before the final
decree or sentence can be pronounced by a judge in a modern court of
law.
Public-domain text, read in full here on John Shaqi.
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