In the parliament of 1295 the three estates appeared in person or by representatives: the lay and spiritual baronage represented themselves, the inferior clergy and the commons, each as an estate of the realm, appeared through their chosen representatives. Two years after the national assembly was thus constituted, the long struggle of the nation for the right to tax itself was closed at the end of the "Barons' War" by the Confirmatio Cartarum, wherein Edward I. was made to promise the clergy, the barons and "all the commonalty of the land, that for no business from henceforth will we take such manner of aids, tasks, nor prizes, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prizes due and accustomed."

HANNIS TAYLOR, Origin and Growth of the English Constitution. II. 11–13.

1429] LEGAL FORMS AND JURY TRIALS — TEXT

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CHAPTER V

LEGAL FORMS AND JURY TRIALS (1429)

SUGGESTIONS

THE Statute 8 Henry VI. 12 is chosen as the type of the many statutes enacted in the Lancastrian Period. Referred to by Sir John Fortescue (whose interpretation of the English laws of the fifteenth century forms a running commentary upon the government of his day) this statute seems particularly worthy of place amongst our documents. This is the earliest mention, in a statute, of the system of trial by jury—"Inquest to be taken of lawful men."

The system of judicature is too technical and too far-reaching to be developed as a correlation of constitutional government, but it is well to give a cursory glance at Curia Regis, the Laws of Henry II., and the growth of Trial by Jury, that the principle of "liberty of the subject" may here be shown to have a legal as well as a moral support in the history of Anglo-Saxon government.

Throughout the earlier study, suggested by the topics in the Appendix, the development of the court and trial by jury are constantly referred to as a basis for research.

For Outlines and Material, see Appendix A.

DOCUMENT

Statutes: 8 Henry VI. Cap. 12 (1429)

No Judgment or Record shall be reversed for any The Statutes Writ, Process, &c., rased. What Defects in Records at Large, i., may be amended by the Judges, and what not.

Item, our Lord the King had ordained and established by the authority of this present parliament, That for error assigned, or to be assigned, in any

550, 551.

record, process, or warrant of attorney, original Assured digwrit or judicial, panel or return, in any places of nity of a war the same rased or interlined, or in any addition,

rant or writ.

Changes to be made by judges if needful.

subtraction, or diminution of words, letters, titles, or parcel of letters, found in any such record, process, warrant of attorney, writ, panel, or return, which rasings, interlinings, addition, subtraction, or diminution, at the discretion of the King's judges of the courts and places, in which the said records or process by writ of error, or otherwise, be certified, do appear suspected, no judgment nor record shall be reversed nor adnulled.

II. And that the King's judges of the courts and places in which any record, process, word, plea, warrant of attorney, writ, panel, or return, which for the time shall be, shall have power to examine such records, process, words, pleas, warrants of attorney, writs, panels, or return, by them and their clerks, and to reform and amend (in affirmance of the judgments of such records and processes) all that which to them in their discretion seemeth to be misprision of the clerks in such record, processes, word, plea, warrant of attorney, writ, panel, and Exceptions: return; (2) except appeals, indictments of treason records not to and of felonies, and the outlawries of the same, and the substance of the proper names, surnames, and additions, left out in original writs and writs of exigent, according to the statute another time made the first year of King Henry, father to our lord the King that now is, and in other writs containing Judges' right proclamation; (3) so that by such misprision of the clerk no judgment shall be reversed nor adnulled. tween record (4) And if any record, process, writ, warrant of

be amended in certain cases.

to correct

variance be

and certificate of

same.

attorney, return, or panel be certified defective, otherwise than according to the writing which thereof remaineth in the treasury, courts, or places from whence they be certified, the parties in affirmance of the judgments of such record and process shall have advantage to alledge, that the same writing is variant from the said certificate, and that found and certified, the same variance shall be by the said judges reformed and amended according to the first writing.

for embez

III. And moreover it is ordained, that if any record, or parcel of the same writ, return, panel, process, or warrant of attorney in the King's courts of chancery, exchequer, the one bench or the other, or in his treasury, be willingly stolen, taken away, withdrawn, or avoided by any clerk, or by other person, because whereof any judgment shall be reversed; that such stealer, taker away, withdrawer, or avoider, their procurators, counsellors, and abet- Punishment tors, thereof indicted, and by process thereupon zling a record made thereof duly convict by their own confession, to be felony. or by inquest to be taken of lawful men, whereof the one half shall be of the men of any court of the same courts, and the other half of other, shall be judged for felons, and shall incur the pain of felony. (2) And that the judges of the said courts of the one bench or of the other, have power to hear and determine such defaults before them, and thereof to make due punishment as afore is said.

IV. Provided always, That if any such record, process, writ, or warrant of attorney, panel, or return, or parcel of the same, be now, cr hereafter shall be exemplified in the King's chancery under the great seal, and such exemplification there of record inrolled without any rasing in the same place in the exemplification and the inrollment of the same, that another time for any error assigned, or to be assigned in the said record, process, writ, warrant of attorney, panel, or return, in any letter, Power of the Great Seal. word, clause, or matter of the same varying, or contrary to the said exemplification and the inrollment, there shall be no judgment of the said records and process reversed nor adnulled.

CONTEMPORARY EXPOSITION

FORTESCUE (1450)

The way of proceeding in civil cases.

Twelve Good and true Men being sworn, as in the Manner above related, legally qualified, that is, having over and besides

their Moveables, Possessions in Land sufficient (as was said) wherewith to maintain their Rank and Station; neither suspected by, nor at Variance with either of the Parties; all of the Neighbourhood; there shall be read to them, in English, by the Court, the (a) Record and Nature of the Plea, at length, which is depending between the Parties; and the Issue thereupon shall be plainly laid before them, concerning the Truth of which, those who are so sworn, are to certify the Court: Which done, each of the Parties, by (b) Themselves or their Counsel, in Presence of the Court, shall declare and lay open to the Jury all and singular the Matters and Evidences, whereby they think they may be able to inform the Court concerning the Truth of the Point in Question; after which each of the Parties has a Liberty to produce before the Court all such Witnesses as they please, or can get to appear on their Behalf; who being charged upon their Oaths, shall give in Evidence all that they know touching the Truth of the Fact, concerning which the Parties are at Issue: And, if Necessity so require, the Witnesses may be heard and examined apart, till they shall have deposed all that they have to give in Evidence, so that what the One has declared shall not inform or induce another Witness of the same Side, to give his Evidence in the same Words, or to the very same Effect. The whole of the Evidence being gone thro', the Jurors shall confer together, at their Pleasure, as they shall think most convenient, upon the Truth of the Issue before them; with as much deliberation and Leisure as they can well desire, being all the While in the Keeping of an Officer of the Court, in a Place assigned them for that Purpose, Lest any One should attempt by indirect Methods to influence them as to their Opinion, which they are to give in to the Court. Lastly, They are to return into Court and certify the Justices upon the Truth of the Issue so joined, in the Presence of the Parties (if they please to be present) particularly the Person who is Plaintiff in the Cause; what the Jurors shall so certify in the Laws of England, is called (c) the Verdict. In Pursuance of which Verdict, the Justices shall render and form their Judgment. Notwithstanding, if the (d) Party, against whom such Verdict is obtained, complain that He is thereby aggrieved, He may sue out a Writ of Attaint, both against the Jury, and also against the Party