The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0093/00930.txt

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$Title{History Of Europe During The Middle Ages
Notes To Book VIII: Part IV}
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$Author{Hallam, Henry}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Notes To Book VIII: Part IV
Note VIII

     Though the following note relates to a period subsequent to the Conquest,
yet, as no better opportunity will occur for following up the very interesting
inquiry into the origin and progress of trial by jury, I shall place here what
appears most worthy of the reader's attention.  And, before we proceed, let me
observe that the twelve thanes, mentioned in the law of Ethelred, quoted in
the text (p. 270), appear to have been clearly analogous to our grand juries.
Their duties were to present offenders; they corresponded to the scabini or
echevins of the foreign laws.  Palgrave has, with his usual clearness,
distinguished both compurgators, such as were previously mentioned in the
text, and these thanes from real jurors. "Trial by compurgators offers many
resemblances to a jury, for the dubious suspicion that fell upon the culprit
might often be decided by their knowledge of his general conduct and
conversation, or of some fact or circumstance which convinced them of his
innocence.  The thanes or echevins may equally be confounded with a jury;
since the floating, customary, unwritten law of the country was a fact to be
ascertained from their belief and knowledge, and, unlike the suitors, they
were sworn to the due discharge of their duty.  Still, each class will be
found to have some peculiar distinction.  Virtually elected by the community,
the echevins constituted a permanent magistracy, and their duty extended
beyond the mere decision of a contested question; but the jurors, when they
were traversers, or triers of the issue, were elected by the king's officers,
and impanelled for that time and turn.  The juror deposed to facts, the
compurgator pledged his faith." (English Commonw. i. 248.)

     In the Anglo-Saxon laws we find no trace of the trial of offences by the
judgment, properly so called, of peers, though civil suits were determined in
the county court.  The party accused by the twelve thanes, on their
presentment, or perhaps by a single person, was to sustain his oath of
innocence by that of compurgators or by some mode of ordeal.  It has been
generally doubted whether trial by combat were known before the Conquest; and
distinct proofs of it seem to be wanting.  Palgrave, however, thinks it rather
probable that, in questions affecting rights in land, it may sometimes have
been resorted to (p. 224).  But let us now come to trial by jury, both in
civil and criminal proceedings, as it slowly grew up in the Norman and later
periods, erasing from our minds all prejudices about its English original,
except in the form already mentioned of the grand inquest for presentment of
offenders, and in that which the passage quoted in the text from the History
of Ramsey furnishes - the reference of a suit already commenced, by consent of
both parties, to a select number of sworn arbitrators.  It is to be observed
that the thirty-six thanes were to be upon oath, and consequently came very
near to a jury.

     The period between the Conquest and the reign of Henry II. is one in
which the two nations, not yet blended by the effects of intermarriage, and
retaining the pride of superiority on the one hand, the jealousy of a
depressed but not vanquished spirit on the other, did not altogether fall into
a common law.  Thus we find in a law of the Conqueror, that, while the
Englishman accused of a crime by a Norman had the choice of trial by combat or
by ordeal, the Norman must meet the former if his English accuser thought fit
to encounter him; but if he dared not, as the insolence of the victor seems to
presume, it was sufficient for the foreigner to purge himself by the oaths of
his friends, according to the custom of Normandy. (Thorpe, p. 210.)

     We have next, in the Leges Henrici Primi, a treatise compiled, as I have
mentioned, under Stephen, and not intended to pass for legislative, ^a
numerous statements as to the usual course of procedure, especially on
criminal charges.  These are very carelessly put together, very concise, very
obscure, and in several places very corrupt.  It may be suspected, and cannot
be disproved, that in some instances the compiler has copied old statutes of
the Anglo-Saxon period, or recorded old customs which had already become
obsolete.  But be this as it may, the Leges Henrici Primi still are an
important document for that obscure century which followed the Norman
invasion.  In this treatise we find no allusion to juries; the trial was
either before the court of the hundred or that of the territorial judge,
assisted by his free vassals.  But we do find the great original principle,
trial by peers, and, as it is called, per pais; that is, in the presence of
the country, opposed to a distant and unknown jurisdiction - a principle truly
derived from Saxon, though consonant also to Norman law, dear to both nations,
and guaranteed to both, as it was claimed by both, in the 29th section of
Magna Charta.  "Unusquisque per pares suos judicandus est, et ejusdem
provinciae; peregrina autem judicia modis omnibus submovemus." (Leges H. I. c.
31.) It may be mentioned by the way that these last words are taken from a
capitulary of Ludovicus Pius, and that the compiler has been so careless as to
leave the verb in the first person. Such an inaccuracy might mislead a reader
into the supposition that he had before him a real law of Henry I.

[Footnote a: It may be here observed that, in all probability, the title,
Leges Henrici Primi, has been continued to the whole book from the first two
chapters, which do really contain laws of Henry I., namely, his general
charter and that to the city of London.  A similar inadvertence has caused the
well-known book, commonly ascribed to Thomas a Kempis, to be called "De
Imitatione Christi," which is merely the title of the first chapter.]

     It is obvious that, as the court had no function but to see that the
formalities of the combat, the ordeal, or the compurgation were duly regarded,
and to observe whether the party succeeded or succumbed, no oath from them,
nor any reduction of their numbers, could be required.  But the law of
Normandy had already established the inquest by sworn recognitors, twelve or
twenty-four in number, who were supposed to be well acquainted with the facts;
and this in civil as well as criminal proceedings.  We have seen an instance
of it, not long before the Conquest, among ourselves, in the history of the
monk of Ramsey.  It was in the development of this amelioration in civil
justice that we find instances during this period (Sir F. Palgrave has
mentioned several) where a small number have been chosen from the county court
and sworn to declare the truth, when the judge might suspect the partiality or
ignorance of the entire body.  Thus in suits for the recovery of property the
public mind was gradually accustomed to see the jurisdiction of the
freeholders in their court transferred to a more select number of sworn and
well-informed men.  But this was not yet a matter of right, nor even probably
of very common usage.  It was in this state of things that Henry II. brought
in the assize of novel disseizin.

     This gave an alternative to the tenant on a suit for the recovery of
land, if he chose not to risk the combat, of putting himself on the assize;
that is, of being tried by four knights summoned by the sheriff and twelve
more selected by them, forming the sixteen sworn recognitors, as they were
called, by whose verdict the cause was determined.  "Est autem magna assisa,"
says Glanvil (lib. ii. c. 7), "regale quoddam beneficium, clementia principis
de consilio procerum populis indultum, quo vitae homi