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Updated: June 5, 2025
We can all perhaps form some idea, though few of us will be likely to form any adequate idea, of what a different thing the trial by jury would have been in practice, and of what would have been the difference to the liberties of England, for five hundred years last past, had this prohibition of Magna Carta, upon the king's officers sitting in the trial of criminal cases, been observed.
This was what the barons meant by their famous demand in Magna Carta that every man should be judged by his peers; they insisted that the royal judges were not their peers, but only servants of the crown, and their demands in these respects were reactionary proposals which might have been fatal to liberty as we conceive it.
The statutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta, in which fines, ransoms, and amercements are spoken of as if they were the common punishments of offences, and as if they all meant the same thing.
These two are somewhat thicker than the others, and carry the party-wall of the Sala del Scrutinio. Now observe, reader. The face of the palace, from this point to the Porta della Carta, was built at the instance of that noble Doge Mocenigo beside whose tomb you have been standing; at his instance, and in the beginning of the reign of his successor, Foscari; that is to say, circa 1424.
King John tried to bribe the Church over to his side in the quarrel with the barons which preceded Magna Carta, by conceding that elections should be free that is, should take place in the chapter-house of the cathedral; but even he reserved the royal permission for the election to be held, and the conge d'elire in England and elsewhere was accompanied by the name of the individual on whom the choice of the electoral body should fall.
Insurrection of the Barons. Magna Carta. Renewal of the Civil Wars. Prince Lewis called over. Death and Character of the King Origin of the Feudal Law. Its Progress. Feudal Government of England. The Feudal Parliament. The Commons.-Judicial Power. Revenue of the Crown. Commerce. The Church. Civil Laws. Manners Settlement of the Government. General Pacification. Death of the Protector.
If there were any such distinction in the time of Coke, it had doubtless grown up within the four centuries that had elapsed since Magna Carta, and is to be set down as one of the numberless inventions of government for getting rid of the restraints of Magna Carta, and for taking men out of the protection of their peers, and subjecting them to such punishments as the government chooses to inflict.
We also know that, in case of conviction, the sentence of the jury was not necessarily final; that the accused had the right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or conviction had been against law. So much, therefore, of the legem terrae of Magna Carta, we know with reasonable certainty.
It cried aye carta, if sae be that it was carta, and made a sign to Rab to follow it. "Tenues secessit in auras," quoth Oldbuck.
But if Sir Henry Spelman introduced feudalism into England, his contemporary, Chief-justice Coke, invented Magna Carta: and in view of the profound misconceptions which prevail with regard to its character, it is necessary to insist rather upon its reactionary than upon its reforming elements.
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