World History

PROBLEM II II.—

Origin of the Jury

Origin of the Jury

I. THE HISTORICAL SETTING OF THE PROBLEM

IT has been remarked more than once that the narrow strip of water which separates England from the Continent, while it has been a safeguard against sudden invasion, has been no barrier to institutions and ideas. Even before the Norman Conquest much that was Frankish and ultimately Roman passed into England. Besides Christianity and the host of conceptions, social and political as well as religious, which it bore, there were such well-known importations as the ideas of written, central-made law, of a king who was more than a war chief, of centralized government in general. But of specific political practices or devices the importations had been very few. These came with the Norman Conquest, and prominent among them—prominent at the time, but absolutely pre-eminent if what was to grow out of it be taken into consideration—was the sworn inquest.

Although Normandy was a new state, founded in 911 by the Scandinavian conquerors of the region, it had by 1066, as one of the family of north French feudal principalities, become as Frankish as any and a distinct leader among them. Even its third duke, Richard the Fearless (943–996), has become known as the last of the Scandinavian and the first of the French dukes of Normandy. Intermarriage was wiping out race antagonism while furnishing a very virile and versatile new strain; and that selective assimilation—the Northmen’ chief glory—by which the better things in their new environment were taken into their life and practice, laid the foundations of future greatness. Normandy was an ideal transmitter into England of things continental.

It may be stated at the outset that the development which was to make the sworn inquest a notable thing in the world’ history took place in England and not on the Continent. One obvious but fundamental reason for this needs a brief discussion before the sources are studied. The sworn-inquest seed found a favorable soil in England. It was sown in a country where there was a fairly large class of men which was at the same time responsible, well-informed, and honest. The three qualities of responsibility, informedness, and honesty were perhaps as frequent in isolation on the Continent as in England. Be that as it may, it was the combination which was needed. A nobility, while certainly responsible and sometimes truth-telling, would not have a bide range of information on local affairs. A servile peasantry, while as honest as the nobles and well-informed on the more local and petty affairs, would lack the goods and chattels on the basis of which a man could be conveniently held answerable for perjury. In men between nobles and serfs, the three qualities were more often combined. And England, in the centuries following the Norman Conquest, had more such men. England had a middle class.

This is not the place for a discussion of English classes or an explanation of their origin, but a few leading facts need emphasis. In the twelfth and thirteenth centuries, the critical period in jury development, there was in England a substantial body of men above the villeins and below the nobles. These non-noble freemen were both urban and rural. In the boroughs they constituted the bulk-of the population, and held their real estate by burgage tenure. Outside the boroughs, they were on the manors throughout England (sometimes themselves lords of manors), not nearly so numerous as the villeins, but always an important element in the population. Their tenure of land was by free socage, the ancestor of the modern fee simple. This middle class, both rural and urban, had important public duties and obligations. The obligation of the citizen to the state had been largely theirs. This obligation had two manifestations which ran back to time immemorial. There was the duty of attending the courts,—hundred and shire courts or borough courts. For these courts were assemblies of the people in which there were presiding officers, but no judges apart from the assembly itself; and upon the assembly rested the conduct of the trial and the finding of the judgments. The other obligation was to defend the state in the citizen army or militia. And when, in the eleventh and twelfth centuries, the Danegeld became a true tax, and when at the end of the twelfth and in the thirteenth century the Danegeld was replaced by the more developed carucage and taxes on movables, the class of non-noble freemen bore an important share of the burden. It was a class, then, that stood face to face with the state and did not, like the villeins, bear its burden in some indirect and servile way through landlords, nor did it escape some burdens and become charged with others in a special and personal way like the nobles.

But the most striking fact about English classes in the middle ages and the one most frequently remarked upon is the split which took place in the nobility. The lower nobles, the knights, parted company in most respects with the greater barons and approached the class below. The kings were so strong in England after the Conquest that warfare among the feudal nobles was seldom possible; also the whole body of knights was less and less frequently summoned to service abroad. Service in the king’ court and central assemblies was not enforced upon the lesser tenants-in-chief, most of whom were knights. The knights, then, were not doing much in a military or political way to distinguish them from the class of freeholders. They stayed at home, ran their estates profitably, intermarried to some extent with the freeholders, and became familiar with all sorts of county business. Judged by continental standards, they were leading an unknightly life. When matters hardened in the later middle ages, it is found that the knights, the English gentry, had not the slightest legal or political right So distinguish them from the non-noble freemen. The distinction was social. Thus England’ middle class virtually included all between a very small group of great barons (later the peers of the House of Lords) and the villeins. It was in this great group that men available for sworn-inquest purposes were oftenest found. And the government was not slow to learn that in the knights responsibility, honesty, and information were oftenest found together.¹

All this assumes that there was a central government strong enough to use the middle classes for its own purposes and intelligent enough to develop this use in an orderly and progressive way. The big part played by the Conquest itself in giving the central government a unique opportunity in England and the strength and intelligence telligence of the post-Conquest kings need little insistence. Ninety-one years out of roughly the first century and a quarter after 1066, England was ruled by a William I., a Henry I., and a Henry II.; and the centennial year of the Conquest brought forth the Assize of Clarendon. Though there was a falling off in the quality of kings during the next century, enough had been done. A standard had been set, traditions had been established, ministers had been trained. No more impressive proof of Henry II.’ greatness can be desired than to watch generation after generation of ministers perpetuating his ideals and methods under the politically incompetent or abusive Richard I., John, and Henry III., and to see how his great ordinances laid the foundation of the courts and the common law. So, if the English middle class was a good tool, there was a firm, clever hand to use it.

II. INTRODUCTIONS TO THE SOURCES

1. The Monastery of St. Vincent versus Certain Serfs of the Monastery.

This record of litigation is taken from the Chronicon Vulturnense or Chronicle of Volturno. This work was compiled late in the eleventh century, at the famous Italian monastery of St. Vincent in the province of Capua, by John, a monk of that house. He began with the eighth century and brought the record down to his own time. In 1108 he presented his work to Pope Paschal II. The Chronicle is for the most part a collection of documents relating to the monastery’ history, and in so far is of value; but its slight narrative portion, which deals mainly with the early, mythical period of the house, is valueless. The document here selected is from the ninth century, and is the record of a very significant bit of litigation to which the monastery of St. Vincent was a successful party. It is not hard to identify the several Frankish rulers mentioned, and it is suggested that this should be done at the outset with the aid of a genealogical table. It is interesting in this connection to notice where the monastery of St. Vincent was located.

2 and 4. The writs relating to the "Abbot of St. Augustine’ Claim to a Ship" and the same abbot’ "Claim to Customs at Newington" are from Thomas of Elmham’ Historia Monasterii S. Augustini Cantuariensis (History of the Monastery of St. Augustine of Canterbury). This compilation was made in 1414, the author being a monk of St. Augustine’. "The portion of the work actually completed covers the years 597–806, while the rest of the volume is made up of rough materials for the projected continuation of the history, such as charters and bulls (many of them spurious) relating to the abbey, from about 1066 to 1191."¹ There is no reason to doubt the authenticity of the writs cited in connection with the present problem.

3. The "Title of the Domesday Inquest for Ely" is a typical set of instructions to the commissioners employed on the great Domesday Survey. The originality and initiative of the Conqueror in undertaking this detailed and unprecedented census, his driving-power in carrying it through in a few months, and the resulting mass of unique but difficult material left to the historian are the phases of the survey usually commented upon at length. In the present connection a different interest is uppermost—viz., the method employed in obtaining the data. Not what was done, but exactly how it was done must be learned here; and an intensive study of the Ely instructions will yield all the necessary information on this point.

5. The record of the litigation of the "Monks of St. Stephen versus the King’ Tenants" was first printed, from the Chartulary (record-book of the property of a monastery) of the monastery of St. Stephen’ at Caen in Normandy, in Palgrave’ English Commonwealth, II, 183. The manor of Bridton, with appurtenances, had been granted to the abbey by William the Conqueror. Notice the make-up and location of the court which finally determined the case; also by what authority it was held and who presided over it.

6. This "Writ of the Earl of Essex in Favor of the Canons of St. Martin" was printed from the original (preserved in the Abbey Church at Westminster) by Madox in his History and Antiquities of the Exchequer (quarto edition) I, 108. Madox placed it "in or about the reign of King Henry I. or Stephen." Bigelow remarks, "If this was the second Geoffrey earl of Essex, as appears to be the case, the writ was of the reign of Stephen; for that king raised him to the position." This was, then, doubtless, the notorious Geoffrey de Mandeville whom Round (in his Geoffrey de Mandeville: A Study of the Anarchy) calls "the most perfect and typical presentment of the feudal and anarchic spirit that stamps the reign of Stephen." In the present case Earl Geoffrey is seen in a moment of penitence superinduced by illness; yet this very writ bears some evidence of his lofty pretensions.

7. The Constitutions of Clarendon, too well-known a document to need much introduction, Was a product of the famous controversy between Henry II. and Archbishop Thomas. The king believed the points at issue should be settled by an appeal to precedent. The time of his grandfather, before the anarchic days of Stephen when the church, like every other element, had gained so many privileges at the crown’ expense, was to him the normal and just period; and the men who were questioned on the former relations of church and state must be old enough to remember well the days of Henry I. That the Constitutions of Clarendon were based on information gained by an inquest can be clearly seen by an analysis of the preamble. The articles, of course, cover the vital points in the great controversy; but besides these Henry seems to have taken the opportunity to clear up several related matters of doubt and difficulty between church and state, and in one or two instances there is outright innovation instead of the statement of old custom. The document relates largely to judicial matters, as was bound to be the case in view of its occasion.

8. The Assize of Clarendon was a set of instructions or the commission given to the itinerant justices about to go on circuit. But while this was its formal and immediate character, it turned out to be constructive legislation on a lofty scale—the supreme example, perhaps, of the informal and unconscious legislation of that great reign when the corner-stone of the common law was laid.

. . . a few written or even spoken words communicated to his [Henry II.’] justices, whom he was constantly sending to perambulate the country, might do great things, might institute new methods of procedure, might bring new classes of men and things within the cognizance of the royal court. Some of his ordinances—or "Assizes," as they were called—have come down to us; others we have lost. No one was at any great pains to preserve their text, because they were regarded, not as new laws, but as mere temporary instructions which might be easily altered. They soon sink into the mass of unenacted common law.¹

It is a most curious fact that only the few specialists in this field knew of the Assize of Clarendon or several other documents of the time not much below it in importance until, about 1870, these documents were first taught to undergraduates at Oxford out of Stubbs’ Select Charters, that revered and noble ancestor of source books.

9. The Assize of Northampton was a revision of the Assize of Clarendon made just ten years later. Again itinerant justices were to be sent through the country and for much the same business. The second document shows that the methods of dealing with criminals which Henry had made a part of his court procedure by the Assize of Clarendon had succeeded. It is interesting to compare the documents and see the changes in detail which a decade of experience had suggested. It is an inspiration to watch the first steps in this great experiment which was to revolutionize criminal procedure and which, with all its early crudities and barbarous accompaniments, was one of the long steps forward in government and civilization. In the sphere of civil pleas, the Assize of Northampton has something new to show us.

10. Tractatus de Legibus et Consuetudinibus Regni Angliœ. [Ascribed to Ranulf de Glanville.]

"Glanville aided Henry II. in his military operations against the Scots and the Welsh, and was chief justiciar of England from 1180–1189. The Tractatus de Legibus is usually ascribed to him, but there is no good evidence to show that he wrote it. It may have been written by his nephew, Hubert Walter. The work was compiled near the end of Henry II.’ reign, 1187–89. It is the oldest of the legal classics of England, and marks a distinct advance over the unsystematic law-books of Henry I.’ time. ’With the exception of the Decretum, it was the earliest systematic treatise that appeared after the dissolution of the Roman Empire.’ The author’ primary object is to describe the procedure of the king’ court, but he also throws much light upon other legal institutions. ’Glanville, who led the way,’ says Reeves, ’is still entitled to the veneration always due to those who open the paths to science.’ His work helped to make law and practice more uniform throughout England along the lines marked out by Henry II."¹

11. These "Typical Civil Pleas" are records of civil suits taken from the so-called Plea Rolls of the king’ court. It is believed that it was in the reign of Henry II.—the reign pre-eminent for great beginnings in law and procedure—that the first written records were kept of cases heard in the king’ court; but none of these has come down to us. However, many Plea Rolls are extant for Richard I.’s reign, and very many more for the reign of John and the reigns following. "When once the stream of Plea Rolls begins to flow, it flows abundantly," says Maitland. "If the judicial records of the thirteenth century were printed in a hundred volumes, those volumes would be stout." And at that we have but a fraction of the rolls originally made. Records were kept of the cases tried before the central court of the king and also of those tried in the localities before the king’ court of the itinerant justices. The first three cases here cited were tried at the center, brought up, it will be observed, from Surrey, Northampton, and Kent; the two following were from the Cornish eyre; and the last three from the Lincolnshire eyre. The actions here illustrated (the grand assize and the three possessory assizes) are those in connection with which, back in the reign of Henry II., the jury was first made a regular part of the procedure in civil suits. By the first part of John’ reign these assizes had become very numerous, and were working powerfully to spread jury trial into all the more important civil actions. Of the cases here shown, a and f are the grand assize; d and h the novel disseisin; c, e, and g the mort d’ancestor; b the darrein presentment. The essential features of these actions should be studied in this connection from some manual of English constitutional history.

12. The "Typical Pleas of the Crown" are records of criminal cases taken from the same kind of Plea Rolls just described. Those printed here were all brought before itinerant justices early in the reign of John, and the circuit, or eyre, is indicated in each case. The number of "crown pleas"—that is, important criminal cases brought before the king’ court—was small in comparison with the civil pleas; hence it is much harder to deduce What might be regarded as the normal procedure of any given time. It is evident that all criminal procedure was distinctly ineffectual. Convictions were rare.

13. These last "Typical Pleas of the Crown" belong to the next reign and are all from the Gloucestershire eyre. In the interval between these and the previous group a very important event in the history of criminal procedure had occurred. Under the influence of the great Pope Innocent III., the Fourth Latern Council, which met in 1215, passed a decree forbidding the clergy to participate in the ceremonies attendant upon any of the ordeals. As all the ordeals except trial by battle were managed by the clergy, this meant abolishing all but this one ordeal in those countries in which the decree was obeyed. It is not hard to account for the ready obedience of England at this time.

III. QUESTIONS AND SUGGESTIONS FOR STUDY

1. What was the principal method used to obtain the facts in the trial recorded in document 1? Give an account of this method, making it as clear and detailed as the document allows. By whose authority was it used? What was it called? Who rendered the judgment in the case? On what was the judgment founded?

2. What features of this method of getting information are to be found in the documents from the reigns of William I. to Stephen (incl.)? What different features do you note? Are there any which seem stable or nearly so throughout? Would you regard the method illustrated in these English documents substantially the same as that in the Frankish?

3. As far as these documents show, was the sworn inquest generally used in connection with a trial in court? (Examine also the early documents in Problem III.)

4. Enumerate the classes of men that were used on sworn inquests in the English cases down to Henry II.

5. In which of the instances here shown was the sworn inquest used on the most extensive scale?

6. Find a case in which the inquest seems to have been used on some other authority than the king’. Can you account for this?

7. Enumerate carefully the different uses of the inquest in Henry II.’ reign. (See also documents from this reign in Problem III.) About which of these does there seem to be anything distinctly new? Do any of them seem at all like modern juries?

8. In what civil suits were juries used in Henry II.’ reign?

9. Name the common civil suits in which there was jury trial early in John’ reign. Of which of these do you find traces in Henry II.’ reign?

10. Find proof in Magna Carta (see Appendix, pp. 000–000) that some of these civil actions were very popular. Have you any means of knowing whether jury trial popularized them or whether they popularized jury trial?

11. Did these juries make their statementS as units or were their members questioned individually?

12. What was the relation of the jury’ statement to the judgment in these cases?

13. Was the jury’ statement ever called in question?

14. Would it be correct to call these jury statements verdicts?

15. Does there seem to have been one or more than one method of selecting juries?

16. In which documents of Henry II.’ reign are to be found juries which presented suspected criminals for trial? What classes of criminals? Was there any change in this last respect during the reign?

17. Which document seems to have established a presenting jury as a regular part of the king’ court procedure?

18. What men served on the presenting juries? Was there any change in this respect during Henry II.’ reign?

19. What modern form of jury is essentially the same as this presenting jury?

20. In connection with the earliest instances of the presenting jury here shown, is there any hint of the king’ reason for adopting it?

21. Did juries present those who had been previously accused by the injured parties? Did they present people who had never been accused?

22. What evidence is there to show whether or not all trials for the most serious crimes were now begun by a jury indictment?

23. How were the people thus presented tried in Henry II.’ or John’ reign? What document prescribed this prevailing method? Do you know whether or not other forms of trial were used for such cases in times past?

24. What evidence is there that Henry II. was dissatisfied with the way in which criminals were tried? Is there any indication of the method he would have liked to substitute?

25. How were criminals tried in Henry III.’ reign? How do you account for the change?

26. What happened if a man refused to allow his guilt or innocence to be determined in this way? Can you suggest why he was allowed any option in the matter?

27. What evidence is there of two distinct juries in these later cases?

¹ Of course if the king needed information which could best be gotten from either great nobles or villeins, he was as ready to use the sworn inquest with them as with the middle class; but for the routine kinds of local business knights or freeholders served best.

¹ Gross, Sources and Literature of English History, p. 184.

¹ Maitland, in Traill’ Social England, II, 408.

¹ Gross Sources and Literature, pp. 315–316.