231. The source of this error was the identification of the judicium parium of chapter 39 with jury trial. This mistake is fully refuted infra under that chapter.
232. The theory now generally accepted that the origin of trial by jury must be sought in procedure introduced by the Norman Dukes and not in any form of popular Anglo-Saxon institutions is ably maintained by Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer, Evidence, p. 7. Undoubtedly their conclusions are in the main correct; but in their natural desire to remove misconceptions, they are possibly guilty of some slight exaggeration. Trial by jury may have had more than one root, and a full appreciation of the value of the Norman contribution need not lead to the total neglect of the Anglo-Saxon one. Accepted conclusions in this respect might profitably be supplemented by the opinions of Dr. Hannis Taylor, English Constitution, I. 308 and I. 323.
234. See Pollock and Maitland, I. 131. It was part of Henry’s policy to substitute indictment by a representative jury for the older appeal by the wronged individual or his surviving relatives. The older procedure, however, was not completely abolished though looked upon with disfavour. Its continuance and also its unpopularity may both be traced in chapter 54 of Magna Carta. See infra.
235. Chapter 38 of Magna Carta, according to a plausible interpretation of an admittedly obscure passage, seems to insist on the necessity of such an accusation by the jury:—“non ... sine testibus fidelibus ad hoc inductis.”
236. For fuller details see infra under chapter 36, and supra p. 108.
237. These three Petty Assizes are mentioned by name in c. 18 of the Great Charter, and under that heading the entire subject is more fully discussed. See infra.