VII.: Magna Carta. Its traditional relation to Trial by Jury.

One persistent error, adopted for many centuries, and even now hard to dispel, is that the Great Charter guaranteed trial by jury. This belief is now held by all competent authorities to be 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 use since the Norman Conquest.

Jury trial in each of the three forms in which it is known to modern English law (the grand jury, the petty criminal jury, and the jury of civil pleas) is able to trace an unbroken pedigree (though by three distinct lines of descent) from the same ancestor, 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, we are afforded some consolation by remembrance of a fact which modern authorities are inclined to neglect, namely, that the soil was prepared by Anglo–Saxon labour for its planting.

The old English institution of 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 accustomed the natives to corporate action, and formed precedents for asking them to give evidence on local matters jointly and on oath. Further, one form of the jury—the jury of accusation—is clearly foreshadowed 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 had no clear vision of the consequences of what they did. The uses to which Inquisitio was put by William and his sons in framing Domesday Book, collecting information, and dispensing justice, have already been discussed. It was reserved for Henry II. to start the institution on a further career of development: he thus laid the foundations of the modern jury system not merely in one of its forms, but in all three of them.

(1) In reorganizing machinery for the suppression and punishment of crime by the Assizes of Clarendon and Northampton, he established the principle that criminal trials should (in the normal case) begin with indictment of the accused by a representative body of neighbours sworn to speak the truth. This was merely a systematic enforcement of one of the many forms of inquisitio already in use: criminal prosecution was not to be begun on mere suspicion or irresponsible complaints. The jury of accusation (or presentment), instituted in 1166, has continued in use ever since, passing by an unbroken development into the grand jury of the present day.

(2) By insisting that ordeal should supersede compurgation as the test of 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 dealt to that form of procedure or “test,” since it depended for its authority on superstition. A canon of the Church had struck away the pivot on which Henry had made his criminal system to revolve. Some substitute was urgently required and so the petty jury (or its rude antecedent) came into existence. The man publicly accused as presumably guilty was asked if he would stand or fall by reference to the verdict 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 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, which has had so important an influence on the development of constitutional liberties in England, and even on the national character. Another expedient of Henry’s invention aided the movement towards the criminal jury, namely, the writ de odio et atia by applying for which a man “appealed” of a crime might substitute what was practically a jury’s verdict for the “battle” which had previously followed “appeal” as matter of course.

(3) The Civil Jury owes its origin to quite a different set of reforms, though inaugurated by the same reformer. Among the evil legacies from Stephen’s reign, not the least troublesome were the claims advanced by rival magnates to estates and franchises which had been bestowed with lavish prodigality by Matilda and Stephen. Henry realized the urgent need of protecting vested interests by a more rational expedient than trial by combat. Here again he had recourse to a new development of “inquisition.” In such cases an option was given to the tenant (the man in possession) to refer the question at issue to the verdict of local recognitors.

This new expedient was applied at first only to a few special cases. It was used to settle claims of ultimate title—the out–and–out ownership of 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 three distinct varieties). The King by a high–handed act of power deprived the demandant of that remedy which was his right by feudal law, the resort to the legal duel. It was because the new procedure was founded on a royal Ordinance, that the name “Assize” was applied to it.

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). While the assisa was narrowly confined to a few types of cases, the jurata was a flexible remedy capable of indefinite expansion, and thus soon became the more popular and the more important of the two. Sometimes the twelve recognitors, summoned as an assisa by the King’s command, were by consent of both litigants turned into a jurata to try a broader issue that had unexpectedly arisen. This explains the phrase, assisa vertitur ad juratam. The assisa and jurata, always closely connected and resembling each other in 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, by 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 tentative measures, however, still vague and unconsolidated, must not be identified with the definite procedure into which at a later date they coalesced: Magna Carta did not promise “trial by jury” to anyone.