1 scheme of tained in went out, and the reeve with them, to "swear on the relic that is given them in hand, that they will accuse no innocent man, nor conceal any guilty one." There is reason to believe that after the Conquest, in the absence of a private accuser, it was generally left to the common voice of the neighborhood to make the accusation and denounce the suspected person.2 A leading object of the Assize of Clarendon was to provide a definite system for the presentment of all persons accused of felony by public report to the courts of the sheriffs or justices. Under the provisions of the Assize in- The quiry was to be made on oath in every county and in every presenthundred, by twelve lawful men of the hundred, and by four ment conlawful men of each township,3 whether any man in any the assize. hundred or township had been accused of being a robber, murderer, or thief, or a harborer of robbers, murderers, or thieves, since the king was crowned. All persons so accused should be taken before the sheriffs, and by them brought before the justices. All persons are required to attend the county court and join, if required, in the presentments.5 No lord of a franchise, not even of the honor of Wallingford, shall refuse to allow the sheriff to enter his franchise either to arrest accused persons, or to take the view of frankpledge. All who were presented by the inquest were re- The quired to go to the ordeal, which seems to have been substi- accused retuted for the usual method of trial by compurgation. If they go to the failed to stand the test of the ordeal, they were required to accept the legal punishment; if they were successful they hoc inquirant Justitiæ coram se, et 4 Art. 4. This provision illustrates 5 Art. 8: "Nullus remaneat pro lib- 7 Art. 4: "Ibi ante Justiciam facient quired to ordeal. Assize of ton, 1176. were even then required to abjure the realm, -— provided they had been accused of any grievous felony by the public voice of the neighborhood.1 With the issuance of the Assize of Clarendon the history of the jury of presentment emerges from obscurity; and yet the scheme of accusation contained in it cannot be considered as a new creation, but rather as a fresh and formal union of the representatives of the township and hundred in the joint discharge of a public duty with which each body of representatives had been immemorially connected. In 1176 the Clarendon Assize was reissued as Northamp the Assize of Northampton, "in the form of instructions to the six committees of judges who were to visit the circuits" then marked out for them.2 In the reign of Richard I. Henry's scheme of presentment was reorganized and reëstablished upon a basis more distinctly representative. Under the new arrangement "four knights are to be chosen from the whole county, who by their oaths shall choose two lawful knights of each hundred or wapentake, and those two shall choose upon oath ten knights of each hundred or wapentake, or if knights be wanting, legal and free men, so that these twelve may answer under all heads concerning. their whole hundred or wapentake." The presentment juries thus chosen were limited to the cognizance of offences comIts later de- mitted within their own hundreds. Not until later times was velopment. this primitive system gradually superseded by the more com Primitive form of the grand jury. Use of the prehensive one known as the grand inquest, which consisted of a single representative body of grand jurors, whose duty it was to make inquiry and presentment throughout the whole county. Not until this last stage was reached did the grand jury attain its full modern development. The jury of presentment as organized under the ordinances petty jury of Henry II. and Richard I. was a representative body whose duty it was to make inquest and presentment in each hun in criminal cases. 1 Art. 14. Cf. Stephen, Hist. Criminal Law, vol. i. p. 251. 2 Select Charters, p. 150; Benedictus, vol. i. p. 108; Hoveden, vol. ii. p. 89 seq. "The two assizes regulate the inquisitions to be held by the king's judges in every shire and in every hundred, without regard to local privileges." — Freeman, Norm. Conq., vol. v. p. 454. 3 "In primis eligendi sunt quatuor milites de toto comitatu, qui per sacramentum suum eligant duos legales milites, de quolibet Hundredo vel Wapentacco, et illi duo eligant super sacramentum suum x. milites de singulis Hundredis vel Wapentaccis." Hoveden, vol. iii. p. 262. 3 deal forbid Lateran dred of persons accused of crime by public report, and all persons so presented were required to submit the question of their guilt or innocence to the ordeal.1 The procedure was very simple. In what is said to be the oldest judicial record in existence are contained several illustrations of the manner in which such prosecutions were conducted. From the "Roll of the Iter of Stafford in 5 John," we learn that "Andrew of Bureweston is suspected by the jurors of the death of one Hervicus because he fled for his death; therefore let him purge himself by the judgment of water."2 After the decree Trial by or of the Lateran Council forbidding it, trial by ordeal became den by the obsolete, and the petty jury gradually took its place as a body council before which the truth of the presentment of the grand jury could be finally determined. The stages in the process by which this result was finally worked out may be indicated as follows: During the period which intervenes between the Conquest and the introduction of the petty jury there were but three modes of trial in criminal cases, compurgation, ordeal, and trial by battle. By the Assize of Clarendon, if Compurganot before, compurgation as a method of trial in criminal seded by cases was superseded by the ordeal,5 and trial by battle could ordeal. only apply in a case where there was an individual accuser. It follows, therefore, that the truth of the public accusations made by juries organized under the Assize of Henry II. could have been tested only in one mode, by the ordeal. After the decree of the Lateran Council of 1215, in which it was ordered that the ordeal should be discontinued throughout Christendom, it soon became obsolete in England. When this point was reached an accusation by a grand jury became practically equivalent to a conviction, for the reason that no way remained of traversing the presumption of guilt which arose out of the presentment. To remedy this evil, and to 1 "The body of the country are the accusers. Their accusation is practically equivalent to a conviction subject to the chance of a favorable termination of the ordeal by water."- Stephen, History of the Crim. Law, vol. i. p. 252. 2 This entry is from the Rotuli Curia Regis for the reigns of Richard and John, and is published in his "Proofs and Illustrations," by Sir tion super both. reached by the end of the thirteenth century. The petty give to the accused his constitutional right to traverse in some jury takes the place of form the presumption of guilt against him, trial by petty jury a form of trial which was first introduced in civil suits involving the right to land—was gradually introduced into criminal proceedings.1 It seems, however, that even before the abolition of ordeals the right to have the question of guilt or innocence finally determined by a petty jury had occasionally been purchased as a special boon from the royal authority. The legal historians find it difficult to determine the exact point of time when a second and a different jury came into general use as a tribunal before which could be That result tried the truth of the presentment made by the first. This result seems certainly to have been reached by the end of the thirteenth century. But the fact must be borne steadily in mind that at the time of their introduction, and for a long period thereafter, the jurors who were allowed to disprove or sustain the accusation made by the jury of presentment were nothing but witnesses. They were therefore summoned from the hundred in which the crime was supposed to have been committed, for the reason that personal knowledge of the facts was an indispensable qualification. If any of the jurors chosen were uninformed of the matters as to which they were to swear, those who were informed were added to or afforced until at least twelve were found who could agree in a definite conclusion in favor of guilt or innocence. By degrees this clumsy system was improved by separating the informed or afforcing jurors from the uninformed jurors, who, after being relieved of their character as witnesses, became judges of evidence detailed by other persons. By the end of the fifteenth century the evolution is complete,5 and the result is 4 As to the history of the process through which the jurors ceased to be witnesses, and became judges of evidence derived from others, see Forsyth, Trial by Jury, pp. 199 seq. 5 This is a reasonable inference from the account given by Sir John Fortesque in his De Laudibus Legum Anglia, which must have been written between 1460 and 1470. How jurors are informed by evidence is made plain, so far as civil cases are concerned, in ch. xxvi. p. 89 (Clermont ed.). Cf. Stephen, Hist. Crim. Law, vol. i. p. 264; For syth, Trial by Jury, pp. 158-167. own. of the appears the modern battle. the jury of judgment, the trial jury of modern times. But By the end not until the present century was the ancient requirement, fifteenth that the jurors in a criminal case should be taken from the century hundred in which the crime was alleged to have been com- trial jury of mitted, finally abolished. Since the passage of the Stat. of 6 times. Geo. IV. (c. 50) the sheriff is only required to return for the trial of an issue, civil or criminal, twelve good and lawful men from the body of the county qualified according to law.1 Trial by battle, which was of Norman introduction,2 has, as Trial by a method of trial in criminal cases, a distinct history of its To the jury of presentment it stood in a perfectly independent relation, for the reason that it could only be invoked upon the accusation of an individual accuser, and such an accuser could make his "appeal" not only after indictment for the offence, but after trial and acquittal had been had upon it. Many instances may be given of trial by battle during the Norman period, but not until the thirteenth century can there be found a complete history of the procedure. This is given by Bracton, who is the great authority upon the subject. This method of trial seems to have been Usual the usual and established way of prosecuting murder down to the close of the fifteenth century. As late as the years 1768 and 1774 attempts to abolish appeals of murder by statute close of the were unsuccessful.5 The last appeal of murder brought in century. England was the case of Ashford v. Thornton in 1818.6 In Ashford that case, after Thornton had been tried and acquitted of the ton, 1818. murder of Mary Ashford at the Warwick Assizes her brother charged him in the court of king's bench with her murder, according to the forms of the ancient procedure. The court admitted the legality of the proceedings, and recognized the appellee's right to wage his body; but as the appellant was not prepared to fight, the case ended upon a plea of autrefois Appeals acquit interposed by Thornton when arraigned on the appeal. ished until This proceeding led to the statute of 59 Geo. III., c. 46, by George III. which all appeals in criminal cases were finally abolished. 1 Forsyth, Trial by Jury, p. 138. 2 As to its possible existence in England at an earlier date, see Palgrave, Commonwealth, p. 225; Placita Ang. Norm., p. 16. 8 Cf. Bigelow, Hist. of Procedure, p. 327. 4 See Bracton, vol. ii. p. 425 seq. 6 1 Bar.& Ald., 405. The case was argued by Mr. Chitty and Sir N. Tindal, and the great authority relied upon was Bracton. method of prosecuting murder down to the fifteenth v. Thorn not abol reign of |