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How did the phenomenon of the jury trial, at nisi prius, affect the development of the common law?
The development of the 'jury' has been identified by many historians as the main institution which affected, and helped to cultivate, the common law of Britain throughout the medieval age. The nisi prius system enabled trials to be held by itinerant justices (eyres) in the counties, eliminating the inconvenience and expense for litigants of journeying to see the King at Westminster. Notably it was in the counties that the jurors resided. This essay shall discuss the initial establishment and later importance of the jury system, which spurred the evolution of the common law, followed by a summary of the demise of the civil jury, juxtaposed with the continued success of the common law under judges. The origins of the jury The 'jury', as is still the case in the modern era, was a body of men sworn to give a true answer (verdictum) to some question, although it is uncertain when and where this body originated. The thesis advanced by Brunner1, and concurred with by Baker, is that the jury was royal in origin, primarily used as 'as authoritarian means of gathering information', which first appeared as the inquest of the Frankish kings. The best known example of this is the Domesday Book which contains statement of sworn bodies of men. This assertion is disputed by Hurnard who argues that, as no references have been found to sworn inquests of the Frankish type in Normandy before 1066, it is more reasonable to conclude that William the Conqueror found that system at work in England when he arrived. Nevertheless, the jury did not develop as a legal institution proper until the reign of Henry II. Early development of the jury and the common law Henry II is recognised as the originator of the jury as a regular judicial instrument, first in Normandy and later in England. Turner states that, 'it was only after Henry came to the English throne that what had been a royal monopoly came to be a part of the common law' 2. As early as 1127 there is evidence that juries were summoned to settle boundary disputes, in cases such as Abbot of Ramsey v King of Scotland. The 12 free men would be specified in the writ of venire facias and were then summoned to 'make recognition' of the facts - meaning to discover and declare them. The classical form of 'petty jury' appeared first in criminal suits, where its use was warranted by the complaint of a breach of the king's peace, following the abolishment of ordeals by the Lateran Council in 1215. By the late 13th century the assize of novel disseisin (a special type of petty assize) had become the principal means of trying title to land and the assize of mort d'ancestor, was required to tell whether A was seised of certain land on the day of his death and whether B was his next heir. It was the role of the jury in deciding these cases that initially spurred the sophistication of the common law and the separation of law and fact in jurisprudential thinking. The question put to the jury, whether the plaintiff was 'seised or disseised', was complex. The unwillingness and inability of juries to answer such technical questions lead to the passing of the Statute of Westminster II, Chapter 30. This chapter provided juries with the right to speak specially. The device of a 'special verdict' was often employed as it allowed juries to avoid liability in an attaint for misapplication of the law to the facts. Arnold submits that, 'It is likely that the special verdict did more to develop the peculiar English rules of real property than any other single device.'3 It is evident that the introduction of the special verdict prompted a develop of the substantive common law because it forced a recognition of the relevant facts and obliged 1
'Die Entstehung der Schwurgerichte' by Heinrich Brunner 'The origins of the medieval trial jury' by Turner 3 'Law and fact in the medieval jury trial: out of sight and out of mind' by Arnold 2
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