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
(_b_) Henry’s usual good sense, in this matter stimulated by some
notable miscarriages of justice, led him to question the equity of the
procedure usually adopted in criminal pleas, namely, by “appeal” or
formal accusation by the injured party, or his nearest surviving
relative. He substituted, whenever possible, communal accusation for
individual accusation; that is, the duty of proclaiming (or indicting)
the suspected criminals of each district before the King’s Justices was
no longer left to private initiative, but was laid on a body of
neighbours specially selected for that purpose—the predecessors of the
Grand Jury of later days. This new procedure, it is true, supplemented
rather than superseded the older procedure; yet it marked a distinct
advance. Appeals were discouraged and exact rules laid down restricting
the right of accusation to certain cases and individuals.[153]
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Footnote 153:
See _infra_, under chapter 54.
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(_c_) A necessary complement of the discouragement of appeals was the
discouragement of “trial by combat” also, since that formed the natural
sequel. An ingenious device was invented and gradually extended to an
increasing number of cases; an accused individual might apply for a writ
known as _de odio et atia_, and thus avoid the _duellum_ altogether by
having his guilt or innocence determined by what was practically a jury
of neighbours.[154]
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Footnote 154:
See _infra_, under chapter 36.
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(2) _Civil Justice._ Henry’s innovations under this head were equally
important.
(_a_) An unflinching rule was established that no case could be brought
before the royal court until a writ had been obtained from chancery.
This had to be paid for, sometimes at a fixed rate, and sometimes at
whatever sum the Crown demanded. The whole procedure in the royal
courts, which followed the issuing of such a writ, came to be known as
“the writ process.” Once it was issued, all proceedings in other courts
must stop. One special form of writ (known as _praecipe_), in
particular, became a royal instrument for removing before the King’s own
_Curia_ cases pending in the manorial courts of mesne lords. To do this
was to enrich the King at the expense of some baron or other freeman, by
bringing to the Exchequer fees which otherwise would be paid to the
owner of the private court. This was plainly "to cause a freeman to lose
his court"—an abuse specially struck at by chapter 34 of the Great
Charter.
Public-domain text, read in full here on John Shaqi.
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