VII. Magna Carta. Its traditional relation to Trial by Jury.
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.
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]
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]
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.
(1) In re-organizing machinery for the suppression and punishment of crime by the Assizes of Clarendon and Northampton, he established the general principle that criminal trials should (in the normal case) begin with formal indictment of the accused by a representative body of neighbours sworn to speak the truth. [234] This was merely a systematic enforcement of one of the many forms of inquisitio already in use; from that date onwards the practice so established has been followed in England. Criminal prosecution cannot be begun on mere suspicion or irresponsible complaints. The jury of accusation (or presentment) may be said to have been instituted in 1166, and has continued in use ever since, passing by an unbroken course of development into the grand jury of the present day. [235]
(2) By insisting that the ordeal was the only adequate test of an accused man’s guilt or innocence, Henry unconsciously prepared the way for a second form of jury. When the fourth Lateran Council in the very year of Magna Carta forbade priests to countenance ordeal by their presence or blessing, a death-blow was really dealt to that form of procedure or “test,” since it depended for its authority on superstition. A canon of the Church had thus suddenly struck away the pivot on which Henry had made his entire criminal system to revolve. Some substitute required urgently to be devised. It was to supply this that the petty jury (or its rude antecedent) came into existence. The man who had been publicly accused as presumably guilty by the voice of his neighbours, was asked if he was willing to stand or fall by a further and final reference to the oath of a second jury of neighbours. This second verdict, then, was the new “test” or “law” substituted, if the accused man agreed, for his old right of proving himself innocent by the ordeal. By obscure steps, on which those best entitled to speak with authority are not yet agreed, this jury, giving a second and final verdict, gradually developed into the criminal jury of twelve, the petty jury of to-day, the characteristics of which are well known and which has had so important an influence on the development of constitutional liberties in England, and even, it is said, on the national character.
Another expedient of Henry’s invention must have aided the movement in the direction of the criminal jury, namely, the writ de odio et atia by applying for which a man “appealed” or accused of a crime might substitute what was practically a jury’s verdict for the “battle” which had previously, in the normal case, followed “appeal” as a matter of course. [236]
(3) The Civil Jury owes its origin to quite a different set of reforms, though inaugurated by the same reformer. Among the evil legacies left to Henry II. from Stephen’s reign, not the least troublesome were the numerous claims advanced by rival magnates to the various estates and franchises which had been bestowed with equally lavish hands, but on different persons, by Matilda and Stephen. Henry realized the urgent need of giving his realm rest by protecting vested interests and by introducing a more rational expedient than trial by combat for deciding between rival claimants to landed estates. Here again he had recourse to a new development of “inquisition.” In such cases an option was given to the defendant (the man in possession, the man with a vested interest which deserved protection), to refer the question at issue to the verdict of local recognitors, twelve knights or freeholders in this case, and therefore men of some position. The name “Assize” was, for reasons to be immediately explained, applied alike to the procedure itself and to the twelve neighbours who gave the verdict.
This new expedient, perhaps because it was looked on with suspicion as an innovation of a violent and revolutionary nature, was applied at first only to a few special cases, namely, to certain disputes as to vested interests in land. It was used to settle claims of ultimate title—the out-and-out ownership of the land—and then it was known as the Grand Assize; it was also used to settle a few well-defined groups of pleas of disputed possession, and then it was known as a Petty Assize (of which there were, however, three distinct and well-known varieties). [237]
In these cases, the defendant could escape “battle” and compel the plaintiff, even against his will, to submit his claim to the verdict of the recognitors. This new-fangled privilege of the defendant had no basis in the ancient custom of the land, but depended solely on royal prerogative. The king, by a high-handed act of power, thus favoured the defendant, by depriving the claimant of that remedy which was his right by feudal law, namely, the resort to the legal duel. It was because the new procedure was thus founded on a royal Ordinance, that the name “Assize” was applied to it. The assisa was a remedy strictly confined to four groups of pleas.
By consent of both parties, however, disputes of almost every description might be similarly determined; being referred (under supervision of the king’s judges) to the verdict of local recognitors, usually twelve in number, who were then known as a jurata (not an assisa, the two being strictly opposed to each other). While the assisa was narrowly confined to a few types of cases, the jurata, since it favoured neither party, was a flexible remedy capable of indefinite expansion, and thus soon became the more popular and the more important of the two. Yet the ancient assisa and the ancient jurata, always closely connected, and resembling each other in most essential features, can both claim to be ancestors of the modern civil "jury,"—the name of the more popular institution having survived. Magna Carta, in providing for the frequent holding of the three Petty Assizes, marked a stage in the development of the Civil Jury; while, in enforcing the criminal procedure of Henry Plantagenet, and guarding it from abuse, the Charter had also a vital bearing on the genesis of the Grand Jury and the Petty Jury alike.
These scattered and incidental references to tendencies still vague and indefinite must not, however, be misread as a reference to the definite procedure into which at a later date they coalesced: Magna Carta does not promise “trial by jury” to anyone.
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.
232. 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.
234. See Pollock and Maitland, I. 131. It was part of Henry’s policy to substitute indictment by a representative jury for the older appeal by the wronged individual or his surviving relatives. The older procedure, however, was not completely abolished though looked upon with disfavour. Its continuance and also its unpopularity may both be traced in chapter 54 of Magna Carta. See infra.
235. Chapter 38 of Magna Carta, according to a plausible interpretation of an admittedly obscure passage, seems to insist on the necessity of such an accusation by the jury:—“non ... sine testibus fidelibus ad hoc inductis.”
236. For fuller details see infra under chapter 36, and supra p. 108.
237. These three Petty Assizes are mentioned by name in c. 18 of the Great Charter, and under that heading the entire subject is more fully discussed. See infra.
