The History of English Law before the Time of Edward I. Frederic William Maitland

into the conduct of the sheriffs whom he had removed from their offices. The instruction for this “Inquest of Sheriffs” we have: [p.117] it is an early example of those articles of inquest by which, as time goes on, the whole machinery of justice is subjected to examination and amendment.Assize of Northampton. At Northampton in 1176 a fresh set of instructions was given to the itinerant justices; the Assize of Clarendon was to be enforced, but in a yet severer form. A brief clause in this Assize of Northampton seems to be the origin of the possessory action of “most d’ancestor” which takes its place beside the “novel disseisin.”³ An Assize of Arms from 1181, an Assize of the Forest from 1184, an Ordinance regulating the collection of the Saladin Tithe from 1188, an Assize of Bread of an uncertain date,—these seem to complete the list of the ordinances that have come down to us.⁴ For the rest, we may draw some inferences from the sheriffs’ accounts recorded in the annual pipe rolls, from the works of Glanvill and Richard FitzNeal and from the stories told by the chroniclers.⁵

Henry’s innovations. The jury and the original writ.If we try to sum up in a few words those results of Henry’s reign which are to be the most durable and the most fruitful, we may say that the whole of English law is centralized and unified by the institution of a permanent court of professional judges, by the frequent mission of itinerant judges throughout the land, by the introduction of the “inquest” or “recognition” and the “original writ” as normal parts of the machinery of justice. We must speak briefly of each of these matters, and will begin with that which modern Englishmen will be apt to think the most distinctive—the inquest, the recognition, trial by jury.⁶

Essence of the jury.The essence of the jury—if for a while we use the term “jury” in the widest sense that can be given to it—seems to be this: a body of neighbours is summoned by some public officer to give upon oath a true answer to some question. That question may take many [p.118] different forms: it may or it may not be one which has arisen in the course of litigation; it may be a question of fact or a question of law, or again what we should now-a-days call a question of mixed fact and law. What are the customs of your district? What rights has the king in your district? Name all the landowners of your district and say how much land each of them has. Name all the persons in your district whom you suspect of murder, robbery or rape. Is Roger guilty of having murdered Ralph? Whether of the two has the greater right to Blackacre, William or Hugh? Did Henry disseise Richard of his free tenement in Dale?—The jury of trial, the jury of accusation, the jury which is summoned where there is no litigation merely in order that the king may obtain information, these all spring from a common root. On the other hand, we have to distinguish the jury from a body of doomsmen, and also from a body of compurgators or other witnesses adduced by a litigant to prove his case. A verdict, even though it may cover the whole matter that is in dispute between the litigants, even though it may declare that William has a better right to Blackacre than has Hugh, differs essentially from a judgment, a doom adjudging the land to William. Even though the form of the verdict and its conclusive force be such that the judgment must follow as mere matter of course, still between the sworn verdict and the judgment there is a deep gulf.⁷

      Jurors, doomsmen and witnesses.If what we were seeking for were a court in which at the bidding of its president, of some national or royal officer, ealdorman or reeve, the inhabitants of a district, or some selected group, perhaps twelve, of such inhabitants, deemed the dooms, we should have no difficulty in discovering the origin of trial by jury. Everywhere we might find such courts, for during the earlier middle ages it is the exception, rather than the rule, that the judgment should be made by the lord or president of the court or by a group of professional justices. But what the jurors or recognitors of our twelfth century deliver is no judgment; they come to “recognize,” to declare, the [p.119] truth: their duty is, not iudicia facere, but recognoscere veritatem. No less deep is the gulf which separates them from witnesses adduced by a litigant. If all that we wanted were witnesses, if all that we wanted were a fixed number of witnesses, for example, twelve, there would really be no problem before us. But the witnesses of the old Germanic folk-law differ in two respects from our jurors or recognitors:—they are summoned by one of the litigants, and they are summoned to swear to a set formula. The jurors are summoned by a public officer and take an oath which binds them to tell the truth, whatever the truth may be. In particular, they differ from oath-helpers or compurgators. The oath-helper is brought in that he may swear to the truth of his principal’s oath. Normally he has been chosen by the litigant whose oath he is to support, and even when, as sometimes happens, the law, attempting to make the old procedure somewhat more rational, compels a man to choose his oath-helpers from among a group of persons designated by his adversary or by his judges, still the chosen oath-helper has merely the choice between swearing to a set formula (“The oath is clean that A. B. hath sworn”) or refusing to swear at all. On the other hand, the recognitor must swear a promissory oath; he swears that he will speak the truth whatever the truth may be.

The jury a royal institution.Then on the face of our English history we seem to see that the jury is intimately connected with royal power. Not only do the king and his officers make the freest use of it in the form of “an inquest ex officio ” for the purpose of obtaining any information that they want about royal rights, local customs or other matters in which the king has an interest, but, as a part of legal procedure civil and criminal, the jury spreads outwards from the king’s own court. To the last, trial by jury has no place in the ordinary procedure of our old communal courts.

Origin of the jury.The English jury has been so highly prized by Englishmen, so often copied by foreigners, that its origin has been sought in many different directions. At the present day, however, there can be little doubt as to the quarter to which we ought to look.The Frankish inquest. We must look to the Frankish inquisitio, the prerogative rights of the Frankish kings. Not to the ordinary procedure of the Frankish courts; that, [p.120] like the procedure of our own ancient communal courts, knows but such antique modes of proof as the ordeal and the oath with oath-helpers. But the Frankish king has in some measure placed himself outside the formalism of the old folk-law; his court can administer an equity which tempers the rigour of the law and makes short cuts to the truth.⁸ In particular, imitating, it may be, the procedure of the Roman fiscus,⁹ he assumes to himself the privilege of ascertaining and maintaining his own rights by means of an inquest. He orders that a group of men, the best and most trustworthy men of a district, be sworn to declare what lands, what rights, he has or ought to have in their district. He uses this procedure for many different purposes. He uses it in his litigation:—he will rely on the verdict of the neighbours instead of on battle or the ordeal. He uses it in order that he may learn how he is served by his subordinates:—the neighbours are required to say all that they know about the misconduct of the royal officers. He uses it in order that he may detect those grave crimes which threaten his peace:—the neighbours must say whether they suspect any of murders or robberies. The procedure which he employs in support of his own rights he can and does grant as a favour to others. In particular, he will concede to a church that its lands shall, like his demesne lands, be protected by inquest, and that the bishop, if his title be attacked, may put himself upon the verdict of his neighbours instead of abiding the risk of a judicial combat. All this we see in the Frankish empire of the ninth century; we see it in the Neustria which the Normans are invading. Then the deep darkness settles down. When it lifts we see in the new states that have formed themselves no central power capable of wielding the old prerogatives. For a long time to come the sworn inquest of neighbours will not be an utterly unknown thing in France; it will only be finally overwhelmed by the spread of the romano-canonical procedure. Even in Germany it will appear from time to time. Yet on the whole we may say that, but for the conquest of England, it would have perished and long ago