statutes occurs in the Constitutions of Clarendon, A. D. 1164, where it was provided that if any dispute arose between a layman and a clerk as to whether a particular tenement was the property of the church or belonged to a lay fief, this was to be determined before the chief justiciary of the kingdom, by the verdict of twelve lawful men. . . . The problem is to discover what was the origin and constitution of the jurata. . .

I conclude that, in the earliest times, disputes respecting lands were decided by the voice of the community of the county or hundred, as the case might be, where the parties lived, that afterwards a select number was substituted for the whole, who gave their testimony upon oath, and therefore were called the jurata;' and that this suggested to Henry II. and his councillors the idea of the assise, which was nothing but the jurata in a technical form, and limited to milites, or knights who were summoned by a writ of the sheriff in virtue of a precept from the king..

As the use of juries became more frequent, and the advantages of employing them in the decision of disputes more manifest, the witnesses who formed the secta of a plaintiff began to give their evidence before them, and, like the attesting witnesses to deeds, furnished them with that information which in theory they were supposed to possess previously respecting the cause of quarrel.

In the time of Fortescue, who was lord chancellor in the reign of Henry VI., with the exception of the requirement of personal knowledge in the jurors derived from near neighbourhood of residence, the jury system had become in all its essential features similar to what now exists. . .

In England, the jury and the witnesses were for many years the same, so that it was only just that they should be punished if they wilfully gave their evidence, that is their verdict, contrary to what they knew to be the truth. And this seems to have been too common. In the tenth year of the reign of Henry VI. a petition was presented to the Commons, complaining of the disherisons and injustice committed in assises and other inquests by perjured jurors, and praying that in a writ of attaint the plaintiff may recover his damages against the petit jury, and every member thereof, as well as against

the defendant, and that no juror might serve on an attaint unless he had an estate of five pounds a year in the county. WILLIAM FORSYTH, History of Trial by Jury. 1-185.

J. R. GREEN (1874)

The Wars of the Roses did far more than ruin one royal house or set up another on the throne. If they did not utterly destroy English freedom, they arrested its progress for more than a hundred years. They found England, in the words of Commines, "among all the world's lordships of which I have knowledge, that where the public weal is best ordered, and where least violence reigns over the people." A King of England the shrewd observer noticed - 66 can undertake no enterprise of account without assembling his Parliament, which is a thing most wise and holy, and therefore are these kings stronger and better served" than the despotic sovereigns of the Continent. The English kingship, as a judge, Sir John Fortescue, could boast when writing at this time, was not an absolute but a limited monarchy; the land was not a land where the will of the prince was itself the law, but where the prince could neither make laws nor impose taxes save by his subjects' consent. At no time had Parliament played so constant and prominent a part in the government of the realm. At no time had the principles of constitutional liberty seemed so thoroughly understood and so dear to the people at large. The long Parliamentary contest between the Crown and the two Houses since the days of Edward the First had firmly established the great securities of national liberty the right of freedom from arbitrary taxation, from arbitrary legislation, from arbitrary imprisonment, and the responsibility of even the highest servants of the Crown to Parliament and to the law. But with the close of the struggle for the succession this liberty suddenly disappears. We enter on an epoch of constitutional retrogression in which the slow work of the age that went before it was rapidly undone. Parliamentary life was almost suspended, or was turned into a mere form by the overpowering influence of the Crown. The legislative powers of the two Houses were usurped by the royal Council.

J. R. GREEN, Short History of the English People. 289, 290.

TASWELL-LANGMEAD (1879)

The use of a Jury, both for criminal presentment and civil inquest, is mentioned for the first time in our statute law in the Constitutions of Clarendon. The way in which the jury is therein referred to seems to imply that it had already grown into general use and favour. When one could be found to accuse a powerful layman amenable to the Bishop's jurisdiction, the sheriffs, at the Bishop's request, were directed to swear twelve lawful men of the neighbourhood to tell the truth, according to their conscience," and the same statute declared that "by the recognition of twelve lawful men," the Chief Justice should decide all disputes as to the lay or clerical tenure of land.

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It was in the Grand Assize (the exact date of which is unknown) that the principle of recognition by jury, having gradually grown into familiar use in various civil matters, was applied by Henry II., in an expanded and technical form, to the decision of suits to try the right to land. It is described by Glanvill as a Royal boon conferred on the people, with the counsel and consent of the proceres, to relieve freeholders from the hardship of defending the title to their lands by the doubtful issue of trial by battle. By the Grand Assize the defendant was allowed his choice between wager of battle and the recognition (i. e., knowledge) of a jury of twelve sworn knights of the vicinage summoned for that purpose by the sheriff.

In actions not seeking to determine the absolute right to land, but dealing with the seisin only (of which the "assize of novel disseisin" was the most important), the sheriff himself chose twelve knights or freeholders (legales homines) of the vicinage, who were sworn to try the question. In both cases the recognitors were sworn to found their verdict upon their own knowledge, gained either by eye-witness or by the words of their fathers, or by such words as they are bound to have as much confidence in as if they were their own. The proceeding by assize was in fact merely the sworn testimony of a certain number of persons summoned to give evidence upon matters within their own knowledge. They were themselves the only witnesses. If all were ignorant of the facts, a fresh jury had to be summoned; if some of them only were ignorant,

a process

or if they could not agree, others were to be added subsequently called afforcing the jury—until a verdict could be obtained from twelve unanimous witnesses.

The remedy by Assize was subsequently improved by several Acts of Parliament, particularly 13 Ed. I. c. 25; and as all actions on the assize were tried in the King's Court or in that of the Justices Itinerant, the jurisdiction of the County and Hundred Courts began, from this period, rapidly to decline.

By the Assize of Clarendon the principle of Recognition by jury was extended to criminal cases. It was ordained that in every county twelve lawful men of each hundred, with four lawful men from each township, should be sworn to present all reputed criminals of their district in each County court. The persons so presented were to be at once seized and sent to the water ordeal. This was simply a reconstitution or revival, in an expanded form, of the old English institution analogous to a Grand Jury, which, as we have seen, had existed at least since the time of King Ethelred II.

By the Articles of Visitation issued under Richard I. in 1194, as instructions to the Itinerant Justices, the election and constitution of the Jury of Presentment established by Henry II. was further regulated, and assimilated to the system already in use for nominating the recognitors of the Grand Assize. From this developed Jury of Presentment our present Grand Jury has historically descended.

The establishment of this system of combined presentment and ordeal had the effect of abolishing, in all criminal cases, the ancient practice of compurgation by the oath of friends, the "manifest fountain of unblushing perjury."

In the year 1215 the ordeal was abolished throughout Christendom by the fourth Lateran Council, and there remained only, for criminal trials in England, the Grand Jury and the Combat. But the Combat was not applicable unless an injured prosecutor, or "appellant," came forward to demand it; and as the Grand Jury was found inadequate to secure perfect justice, the practice (which had been introduced even before the abolition of ordeal) gradually grew up of allowing a second, or Petit Jury to affirm, or traverse, the testimony of the first set of inquest men. This became the general usage in the reign of

Henry III. Still for a long time no prisoner was compellable to plead, that is, he might refuse to be tried by the jury: but in this case he was remanded to prison, and from the date of the Statute of Westminster I. (3 Edward I.) was liable to the barbarous punishment called peine forte et dure, which was only abolished so late as the reign of George III.

It is important to bear in mind that in Trial by Jury as permanently established, both in Civil and Criminal Cases, by Henry II., the function of the Jury long continued very different from that of the modern tribunal. The jurymen were still mere recognitors, deciding simply on their own knowledge or from tradition, and not upon evidence produced before them; and it was for this reason that they were always selected from the hundred or vicinage in which the question arose.

The later development, common to the Civil and Criminal Jury alike, by which the jurors gradually changed from witnesses into judges of fact, the proof of which rested exclusively on the evidence of others, has now to be considered. The number of the recognitors was at first undefined, but when Glanvill wrote, under Henry II., twelve appears to have been the usual, though not the invariable, number mentioned in the King's writs. We have seen that it was necessary that twelve jurymen should concur in their verdict, and this result, in Civil cases at least, was procured by "afforcing" the jury, that is, adding other recognitors from the vicinage who were acquainted with the matter. But the difficulty of procuring a verdict of twelve, caused for a time the verdict of a majority to be received. In the reign of Edward III., however, the necessity for a unanimous verdict of twelve was re-established.

Under Henry III., special witnesses (such as the witnesses to a deed) were sometimes summoned together with, and formed part of, the Jury.

In the Year Books of 23rd Edward III. mention is made of witnesses being adjoined to the Jury to give them their testimony, but without having any voice in the verdict. This is the first indication of the Jury deciding on evidence formally produced in addition to their own knowledge, and forms the connecting link between the ancient and the modern Jury.

Early in the reign of Henry IV. a further advance was made.