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

The jury in England.Such is now the prevailing opinion, and it has triumphed in this country over the natural disinclination of Englishmen to admit [p.121] that this “palladium of our liberties” is in its origin not English but Frankish, not popular but royal. It is certain that of the inquest of office or of the jury of trial the Anglo-Saxon dooms give us no hint, certain also that by no slow process of evolution did the doomsman or the oath-helper become a recognitor. The only doubt that there can be is as to the jury of accusation, the jury as an organ of fama publica.

The twelve thegns.This species of the inquest is that which is the most likely to have penetrated beyond the limits of the empire, for within those limits it was adopted by the church for her own purposes. Just as the king might collect charges of crime, so the church might collect charges of sin. In the early part of the tenth century the canonist Regino of Prüm describes the bishop holding his synod, selecting a number of trustworthy men from among the assembled laity, administering to them an oath that they will tell the truth and conceal nothing for love or hate, reward or kinship, asking them to report their suspicions of their neighbours, and compelling to the ordeal or to compurgation those against whom bad tales are told.¹⁰ It would not be wonderful if this procedure spread from the Frankish church to the English. In the days of Dunstan and Oswald the English church was borrowing ideas and institutions from the Frankish. But we have no direct proof that at any time before the Conquest the English church did use this system of sworn communal accusation. There is, however, one law which must cause some difficulty. It is a law of Æthelred the Unready, published, so it would seem, in the year 997 and applicable only to the Danish district.¹¹ In it we read how a moot is to be held in every wapentake, and how the twelve eldest thegns are to go out with the reeve and to swear upon the relic that he puts into their hands that they will accuse no innocent and conceal no guilty man. Certainly this looks like a jury of accusation; [p.122] but the context will make us doubt whether we have here a law of any generality.¹² There seem, however, to be good reasons for believing that some of the Scandinavian nations came by a route of their own to something that was very like the jury.¹³ The investigation of this matter is made the more difficult by the comparatively recent date of the Scandinavian law-books. No doubt there is here a field for research, but it seems unlikely that any new discovery will disturb the derivation of our English from the Frankish inquests. We cannot say a priori that there is only one possible origin for the jury, we cannot even say that England was unprepared for the introduction of this institution; but that the Norman duke brought it with him as one of his prerogatives can hardly be disputed.¹⁴

The inquest in the Norman age.Hardly had England been conquered, before the sworn inquest of neighbours appeared as part of the system of government and royal justice. The great fiscal record known to us as Domesday Book was compiled out of the verdicts of juries.¹⁵ The king makes use of the same engine in his own litigation; he can bestow the right to make use of it upon favoured churches;¹⁶ he can direct its employment in any particular case.¹⁷ We see too a close connexion between the jury of trial and the protection of possession, a connexion which is to become prominent hereafter. In the earliest case in which there is to our knowledge anything that could be called a trial by jury, the Conqueror directs his justiciars, Archbishop Lanfranc, the Count of Mortain and the Bishop of Coutances, to summon to one place the moots of several shires to hear a plea between the Abbot of Ely and divers other persons. Certain of the English who know what lands were held by the church of Ely on the day of the Confessor’s [p.123] death are to declare their knowledge upon oath. This will be a verdict, not a judgment. The justices are to restore to the church, not all the lands that she had at the date thus fixed, but only such of them as no one claims under the Conqueror. A particular question, a question about possession at a given moment of time, is thus singled out as one that should be decided by a sworn inquest of neighbours.¹⁸ Had the Abbot of St. Augustin’s a ship free to cross the sea on the day when the king last went abroad? How many pigs free of pannage had the Abbot of Abingdon in the time of Henry I.? Did this land belong of old to Bridton or to Bridport?—Such and such like are the questions about which verdicts are taken. Still throughout the Norman period, trial by jury—the introduction of an inquest into the procedure of a law-suit—remains an exceptional thing. The Leges Henrici know nothing of it; the iudices who are there mentioned are not recognitors but doomsmen. Of the accusing jury on the other hand faint traces are to be found. We certainly cannot say that it was never used, but we read very little about it.¹⁹

Henry’s use of the inquest.Under Henry II. the exceptional becomes normal. The king concedes to his subjects as a royal boon his own prerogative procedure. This is done bit by bit, now for this class of cases and now for that. It is probable that while not yet king he had done something of the same kind in Normandy.²⁰

The assize utrum.It is by no means unlikely that the class of disputes which was the first to be submitted to a jury as a matter of common practice was one in which the claims of the church came into collision with the claims of the state. In the twelfth century the church was asserting and establishing the principle that all litigation about land that [p.124] had been given by way of alms to God and the saints should come before her courts. This principle was hardly disputed in Stephen’s day; but of course in many cases the question would arise—“Is this land alms or is it lay fee?” To allow the case to go for good and all either to the temporal or to the spiritual forum, would be to beg this preliminary question. Church and state are at issue, and neither should be judge in its own cause. The voice of the countryside about this question—which can be regarded as a question of fact, “Lay fee or alms?”—may be listened to; it comes, so to speak, from the outside and will be impartial. At any rate, Henry in the Constitutions of Clarendon claimed as one of the ancient customs of the realm that such a question should be decided by the oath of an inquest in the presence of his justiciar.²¹ In this as in other instances we have some evidence that the king’s claims were founded on past history. A story comes to us from the abbey of St. Albans which describes a lawsuit of Stephen’s day in which the question “Lay fee or alms?” was submitted to a jury charged to tell the truth both by the king and by the bishop of the diocese.²² Be this as it may, already in 1164 Henry asserted that a procedure which in after days was known as the assisa utrum was and ought to be a normal part of the machinery of justice. A “recognition” by twelve lawful men was to decide whether (utrum) the land in question was alms or lay fee.

The assize of novel disseisin.Some two years later, perhaps at the council held at Clarendon in the first months of 1166, Henry took a far more important step. He issued an ordinance and instituted a procedure: ordinance and procedure alike were known as the assize of novel disseisin (assisa novae disseisinae). At that council was published the edict known as the Assize of Clarendon, which deals with criminal matters and which served as instructions for the justices who were being sent out on a great eyre throughout the land. We fix this date as that of the assize of novel disseisin, because the next pipe roll, a roll which records the abundant profits reaped by the itinerant justices in the field of criminal law, gives us also our first tidings of men being amerced for disseisin “against the king’s assize”; from that moment [p.125] onwards we get such tidings year by year.²³

Import of the novel disseisin.Of this ordinance, which was in the long run to prove itself one of the most important laws ever issued in England, we have not the words. Bracton tells us that wakeful nights were spent over it,²⁴ and we may well believe him, for the principle that was to be enforced was new and startling. It was this:—If one person is disseised, that is, dispossessed, of his free tenement unjustly and without a judgment, he is to have a remedy by royal writ: a jury is