Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 101

The history of the jury has now been settled by the famous researches of Brunner,² supplemented by those of Haskins,³ who from newly discovered evidence partly filled the gap which Brunner had to admit. This history certainly goes back to the early ninth century, when we find the Emperor Louis the Pious, son and successor of Charlemagne, ordering in 829 that for the future the royal rights shall not be ascertained through the production of witnesses, but by the sworn statement of the best and most credible people of the district.⁴ It seems that the government had little faith in the production of witnesses by parties who were disputing its claims; such testimony, it was felt, was sure to be interested. Instead, the Emperor undertook to compel the most considerable people of the county to declare upon oath what the customary royal rights were, and it may very well be that this method was more likely to produce the truth than the voluntary testimony of witnesses supporting their friends against the government. If we put ourselves for a moment in the place of a contemporary, we might imagine that there would be some grumbling at superseding an ancient institution of witness proof by the high-handed proceeding of compelling people selected by the government to speak on oath, whether they wished to or not. It might have seemed, perhaps, that the administration had usurped dangerous powers and was settling disputes in its own favour by unorthodox methods. To such an objection, if ever it were raised, history has given an answer: in the course of a thousand years this drastic administrative machine has been transplanted to an unknown continent, where by a strange twist of history it has become the constitutional bulwark of the public against the executive.

It has been suggested that Louis the Pious did not invent this, and that there was some precedent for the device as early as a law of Valentinian I (369), but the argument here is not quite so convincing—at least to Romanists, who are rather loath to admit the paternity of the jury. But from Louis the Pious onwards the evidence is clear enough, until the failure of the line of Charlemagne, when we come to a very obscure period—the darkest moment of the dark ages—and it was here that Brunner had to admit that there was a gap in his evidence.