Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 27

“First, we have granted to God, and by this our present charter have confirmed for us and our heirs for ever, that the English Church shall be free and shall have all her rights and liberties, whole and inviolable. We have also given and granted to all the freemen of our realm, for us and our heirs for ever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs for ever (Chapter 1; note the formulas of a conveyance of real property which are here used).

“The City of London shall have all her old liberties and customs. And moreover we will and grant that all other cities, boroughs, towns... and ports shall have all their liberties and free customs” (Chapter 9).

“No freeman shall be taken or imprisoned, or disseised of his free tenement, liberties or free customs, or outlawed or exiled or in any wise destroyed, nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land. To none will we sell, deny, or delay right or justice” (Chapter 29). These words have provoked centuries of discussion. Originally, it seems, “the law of the land” covered all the usual modes of trial, whether it be by indictment, petty jury, appeal or compurgation. “Trial by peers”, on the other hand, was undoubtedly an importation from continental feudal law, and was the solemn trial of a vassal by his fellow-vassals in the court of their lord.¹ It has always been rather rare, and is apt to have a political aspect. King John himself was tried by his peers in the court of King Philip of France who was his overlord in respect of the lands held by John in France. In certain cases an English peer could claim to be tried by members of the House of Lords, either in Parliament or in the Court of the Lord High Steward. As time went on the phrase was given a newer and wider meaning. We find for example that a knight accused of felony will claim successfully a jury composed of knights.² Later still the notion will get abroad that “trial by peers” means trial by jury, which it certainly did not at the time when the charter was first made.