Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 102

This gap has been filled to some extent (though not entirely) by the discoveries of Professor Haskins, who has accepted Brunner’s theory that the institution was carried over from the crumbling empire of the Carolingians to the new duchy of Normandy, and that the dukes used it there in much the same way as the emperors had before them.¹

At first the jury had been used by the government only as a particularly drastic means of establishing its own rights. This indicates some dissatisfaction with existing methods of proof, and it is clear that this dissatisfaction was shared by litigants as well, for the next stage in the history shows us private persons seeking as a favour from the duke or the King the privilege of having their rights ascertained by means of an “inquisition”, as the institution was then called. In other words, the jury of administrative inquiry was on the point of becoming a jury of trial in civil procedure. Some lords, both lay and ecclesiastical, even went so far as to introduce the jury into their private courts without royal or ducal permission (as far as we can see). The crown therefore was in peril of losing its monopoly of jury trial, although it retained and developed the natural advantage of finding it easier to compel the attendance of jurors than did most other lords.

Henry I while he was duke of Normandy occasionally bestowed the privilege of trial by inquisition (or jury) upon a favoured church, such as Bayeux;² Duke Geoffrey³ carried the process a step further and by means of an enactment, called an assize, made trial by inquisition the general method for all important litigation of a civil character.