William's vate causes land. sheriff and all the barons and Norman landholders of the shire, was drawn up a detailed history of every manor or township in the kingdom.1 This system of inquest by the Same system applied oaths of local witnesses, which William thus applied on so during large a scale to the accurate assessment of the land over reign to the which he was called to govern, was frequently applied during trial of prihis reign to the trial of private causes in which the right to involving real property was drawn in question. Throughout the Norman period it seems to have been a constant practice in suits involving the right to land to decide the controversy by appealing to the knowledge of the community in which the parties resided and the land lay.2 The authority for the proceeding was the royal writ authorizing the inquiry, which was executed by a judge or other royal officer through the answers of witnesses who represented the vicinage, and who stated upon their oaths to which contestant the right belonged. The case usually cited to illustrate the character of a simple judicial inquisition of the Norman period is that one A simple inquisition in which William, in one of the earliest English writs extant, of the Nordirected his justiciars to summon all the shire-moots that man period. had taken part in a previous unsatisfactory trial as to lands belonging to the church of Ely: that being done, they were directed to choose a number of Englishmen who could state how the title stood upon the day Eadward the Confessor died; the statement thus made by them was to be confirmed by their oaths. The title as it was found to exist in the time of Eadward was to prevail, except in the cases of gifts made by the king since the Conquest.3 In this proceeding we have an example of a royal writ directed to the king's justices commanding them to inquire, upon the testimony of the vicinage, into the truth of a disputed allegation in a suit in which land was in question. The writ which authorized the holding of the inquiry was an instrument of royal law, while the community witnesses who responded to the inquiry represented a form of witness proof which finds its origin in the customary 1 See Ely Domesday, Dom., vol. iii. P. 497. 2 Forsyth, Trial by Jury, p. 108. 8 Placita Ang.-Norm., p. 24; Forsyth, Trial by Jury, p. 99; Dugdale's Monasticon, vol. i. p. 478. 4 "The essential feature of this writ is the direction for an inquiry upon testimony of the vicinage concerning which had been the subject of an unsatisfactory trial."- Bigelow,. Hist. of Procedure, p. 176. community in a new re lation. Whether produced The law. But the old customary witnesses now appear in a new witnesses relation they are no longer mere jurors who swear only to now appear the assertion of their chief; they are sworn men (jurati), who, being emancipated from the rigor of form that prevailed in the ancient procedure, answer upon their oaths such questions as are propounded to them by the officer charged with the execution of the inquiry. If this theory be the true one, it clearly explains how the community witnesses of the customary law were developed into the community jurata, whose existence is clear from the time of the Conquest;1 it clearly explains how the more perfectly organized method of proof (inquisitio per testes), which the Normans introduced, was engrafted upon the undeveloped witness-proof of the customary law. In the face of all the learned refinement upon the subject, it is safe to say that the community witnesses, whether or convened produced by a party in his own behalf, or convened to meet the officer charged with the execution of the inquest, were same body one and the same body of men, they were the representatives of the vicinage through whose oaths the community spake as to the particular fact in question. The simple judicial inquisition of the Norman period may therefore be defined to be an inquiry into the truth of a disputed allegation, authorized by the king's writ, and directed to a judge, sheriff, or other royal officer, commanding him to ascertain the right in question by the oaths of witnesses taken from the neighborhood. Thus under the influence of the writ process the community witnesses of the customary law were developed into the community jurata, whose existence in England is clear from the time of the Conquest. by a party by an officer, they were the of men. Recognitions, how they differed from a simple inquisition. During the reign of Henry of Anjou there was introduced into England a new species of the inquest of proof known as the recognition.2 The distinction between a simple inquisition and a recognition was that the former consisted of an inquiry into a disputed allegation conducted by a judge or other royal officer, who propounded interrogatories to an in 1 "Forms of the community-jurata, so often mentioned in the law-books of the thirteenth century, had clearly been in use in England ever since the Conquest; such for instance as the simple judicial inquisition ordered for the trial of a cause by the king's writ."— Bigelow, Hist. of Procedure, p. 337. 2 Brunner, Schwurg, pp. 303, 304. "On the assize as established by Henry II.," see Forsyth, Trial by Jury, ch vi. definite number of witnesses taken from the body of the local court; while the latter consisted of an inquiry made by a definite body of chosen witnesses, who, after being duly chosen, were summoned by an officer of the law to make inquiry into the matter in dispute, and then to report (recog noscere) the truth to the court itself.1 In each proceeding, inquiry was made by the oaths of witnesses, whose answers were supposed to embody the knowledge of the community. But in a simple inquisition the witnesses were a part of the court, and as such were interrogated by the judge; while the recognitors sat apart from the court, and conducted their own inquiry as a distinct body which stood between the parties and the judge. The report of the recognitors was based upon their own knowledge, and by knowledge, says Glanvill, was meant what they had seen or heard from reliable report.2 There seems to be no doubt that the system of recognition existed in Normandy before it was brought into England. The most authoritative view is that Henry II., who is supposed to have introduced the recognitiones into Normandy between 1150 and 1152, introduced them into England, upon Introduced his accession to the throne of that kingdom, under the name II. under of assizes. To the student of English law, the Great As- the name of size, and the assizes of novel disseisin, mort d'ancester and darrein presentment, the leading recognitions in civil matters, are the most familiar. The nature of the Great Assize Nature of has been thus explained by a contemporary historian: "Now Assize. the Great Assize is a royal benefit indulged to the people by clemency of the prince on the advice of the nobles, whereby life and property are so wholesomely cared for that men can avoid the chance of the combat, and yet keep whatever right they have in their freeholds. . . . This constitution arises from the highest equity, for the right which can scarcely be proved by battle after many and long delays is more conveniently and speedily acquired by the benefit of this constitution. . . . Besides, this institution has in it more 1 Bigelow, Hist. of Procedure, p. 175, note 4, pp. 335, 336. 2 Glanvill, lib. 2, c. 17, § 4. 8 "The system of recognition existed in Normandy before it was brought into England, but it was developed in England, and that development probably had a reflex influence on Normandy."- 4 Brunner, Schwurg., pp. 303, 304 by Henry assizes. the Great A substi tute for trial by battle in suits for freeholds. Recogni tors mere witnesses. equity than trial by combat in proportion as more weight is to be allowed in judgment to many fit witnesses than to one alone." The primary object, then, of this beneficent institution, organized by the legislation of Henry II. out of elements existing in the jurisprudence of the time, was to furnish to those who were assailed in their freeholds a reasonable and equitable method of trial by witnesses taken from the neighborhood in lieu of trial by battle. When the right to a freehold was drawn in question, and the demandant tendered to the party in possession trial by combat, the defendant, unless some valid objection could be taken by his adversary, could escape from it by putting himself upon the Great Assize. This was accomplished by the defendant's obtaining from the curia regis a writ to stop all proceedings in the local court until a recognition could be had as to the right set up by the claimant. In order to obtain a trial the claimant was then obliged to obtain a writ directed to the sheriff commanding him to summon four lawful knights of the neighborhood wherein the disputed property lay, who were to choose twelve lawful knights of the same neighborhood most cognizant of the facts, who were upon their oaths to declare which of the parties litigant had the greater right to the land in dispute.1 The proceedings in the other assizes were substantially the same, with the exception that the sheriff himself selected the twelve recognitors from those best acquainted with the facts, without the intervention of the four electors.5 That the recognitors were regarded as mere witnesses is manifest from the procedure in the event that some of the number summoned were found to be ignorant of the facts in question. If any of the twelve did not possess the requisite knowledge, or if they disagreed, others were summoned until at least twelve were found who knew and agreed upon the facts. It required the concurrent testimony or verdict of twelve witnesses or recognitors to be conclusive of the right. Beyond 1 Glanvill, lib. ii. c. 7. 2 As to the details of the procedure, Glanvill, lib. ii. c. 8; Bigelow, Hist. 5 Glanvill, lib. xiii. cc. i., 2 seq.; Stubbs, Const. Hist., vol. i. p. 617; Reeves, Hist. Eng. Law, vol. i. p. 443. 6 Cf. Forsyth, Trial by Jury, p. 127. 7 And no subsequent action could be brought upon the same claim. Glanvill, lib. ii. c. 18. formed into this stage, in which the recognitors or jurors were mere witnesses, the Norman jury did not advance. In Normandy, as well as in the rest of France, the whole system of inquest by proof was gradually superseded by the French enquête, a procedure partly Roman, partly canonical. The remarkable In England fact is that only on English soil did the jury of proof sur- the jury of only was vive, and finally pass through the ultimate evolution which proof transhas transformed it into the jury of judgment, the trial jury the jury of judgment. of modern times. The steps by which the trial jury, in the form in which we now know it, was at last established, may be briefly explained as follows: If any of the jurors chosen were uninformed as to the matters concerning which they were to swear, those who were informed were added to or afforced until at least twelve were found who could unite in a definite conclusion in favor of one side or the other.2 By degrees this clumsy system was improved by separating the afforcing jurors from the uninformed jurors, who, being thus relieved altogether of their character as witnesses, became judges of evidence detailed by others. From the account given of juries by Fortescue in his treatise, written between 1460 and 1470, it is quite clear that this final stage in the development of the trial jury in civil cases must have been reached by the middle of the fifteenth century.3 jury gradu other meth The attempt has now been made to unfold the process Trial by through which a certain kind of witness-proof, whose germs ally superwere imbedded in the customary law, was slowly developed seded all upon English soil, first into the jury of proof, and finally into ods of trial. the jury of judgment, the trial jury of modern times. The four stages of growth in the historical development of the jury are represented by the community witness of the customary law, the simple inquisition of the Norman period, the recognitions of the Angevin period, and the trial jury of today. As heretofore explained, the simple judicial inquisition, out of which the jury of proof directly arose, struggled into 1 "The enquête, introduced by an ordinance of Louis IX. in 1260 first into the royal tribunals, afterwards took the place of the ancient inquisitio both in France and in Normandy." North Am. Review, July, 1874, p. 221. 2 Forsyth, Trial by Jury, p. 127. See above, p. 310 and note 5. "The simple inquisition stands between this mode of trial by witnesses and that species of the inquisition known as a recognition; not in strict chronological order, for all three existed side by side throughout the Norman period." - Bigelow, Hist. of Procedure, p. 335. |