REVIEWS
| Date | 01 November 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02269.x |
| Published date | 01 November 1966 |
REVIEWS
ENQLISH
JUSTICE
BETWEEN TIIE
NORMAN
CONQUEST
AND THE
GREAT
CHARTER
1066-1215. By
DORIS
M.
STENTON.
[London: Allen
&
Unwin,
for
The
Americnn Philosophical Society. 1905. ix
and 216 and (bibliography and index) 28
pp.
25s.
net.]
Tms
book
consists of the Jayne Lectures dclivcrcd to the American Philo-
sophical Society in
1968,
rounded
off
with the author’s
Raleigh
Lccture of
1Ofi8 on “King John and the Courts of Justice.” Lady Stenton tells
us
in
her
introduction that
she
is
not attempting to cover the whole field of English
justice betwccn the ConqucSt and the Great Charter. She largely confines
her attention “to those aspects of the subject on which
I
have particularly
worked since
I
began my studies .
. .
the procedure in civil pleas and tlie
gradunl creation of
a
bcncli of judges and
a
legal profession?’
She
nlso
tells
us
that Professor Van Caenengcm’s courageous attempt to
All
the gap
between
1066
and
1187
has
‘‘
challcngcd contemporary opinion.” Although
she has to make serious criticisms of some of his main conclusions, Lady
Stenton acknowledges the
‘‘
grcnt stimulus
’’
of his work.
The
points on which Lady Stcnton takes issue with
Dr.
Van Cacnengem’s
study of “Royal Writs in England from the Conquest to Glanvill” (Selden
Society, Vol.
77)
are of special interest to legal historians. The controversy
about the origin of the jury continues unabated. In her first chapter on
the
“
Anglo-Saxon Inheritance,” Lady Stenton rejects his theory of
a
“
double origin
”
for thc common law jury.
He
maintains that the “popular
recognition,” with Anglo-Saxon and ultimatcly Scandinavian pedigree, even-
tually fuscd with the
“
royal inquest” introduced by the Normans, who in
turn hnd borrowed this administrative technique from the Frankish Empire.
Lady Stcnton mnkcs
a
vcry convincing case for the popular recognition as
the
sole
sourcc. This institution can
be
found working even before the
Conquest, as an exceptional procedure for settling unusual disputes, sign%
cantly in that part of England most under Scandinavian influence. In this
she
naturally feels confirmed by tlie fairly recent publication
of
the ducal
charters from
911
to
1066,
which give no hint of the
use
of an inquest
procedure in Normandy for administrative
or
judicial purposes. The earliest
Norman evidence of this
is
from the post-conquest period.
It
was of course the Norman and Angevin Kings who establislied
the
jury
a8
an
integral and everyday part of English procedure. In this ncliicvement
they were vcry much indebted to
tlie
‘‘
Anglo-Saxon invention of the sealed
writ by which tlie King’s commands could be carried in
a
stereotyped
phraseology throughout the lnnd”
(p.
17).
Dr.
Van Caenengcm
has
himself
demonstrated that this achievcmcnt owes nothing to imitation
of
the Frankish
indiculi.
Moreover, it should be said that the main stress of his own investiga-
tion of the origin of the jury is on the Anglo-Snxon side of his “recognition
plus inquest
”
theory.
Is
it, then, quite fair to say of him that
he
’‘
appenrs
to accept without question, like Hnskins before him, the doctrine
SO
successfully taught by Brunner in
1871
that the inquest as it was used in
England is directly derivcd through the Normans from the Frankish inquest
by which roynl rights were investigated”? (p.
16).
Lady Stenton herself
acknowledges that
lie
admits the weak link in tile chain is Normandy before
1066.
However,
she
give8 him credit for being the first historian seriously
to consider the implication of the plcn betwccn tlie abbeys of Ramsey and
Thorney in about 1063. This
is
one of the strongcst pieces of evidence for
698
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