in the laws of King Ethelred promulgated at Wantage, which probably dates from about the year 997.1 It is this:
“And that a gemot be held in every wapontake; and the xii senior thegns go out, and the reeve with them, and swear on the relic that is given them in hand, that they will accuse no innocent man, nor conceal any guilty one....”
It cannot be denied that we have here a remarkable anticipation of the Assize of Clarendon which later was to establish as a regular procedure the presentment of suspected criminals by the hundred. There are one or two other traces in various parts of Scandinavia which may point in the same direction, and by the fourteenth century Sweden certainly had a developed system of presenting juries, and indeed had also created a trial jury (called the Nämnd) both in civil and criminal proceedings.2 The origin and the growth of the nämnd seem to be quite independent of the corresponding institutions in England, and in fact it is not unprecedented to find that two different systems independently come to substantially the same conclusion; but when the historian sees the similarity of the conclusions he must beware of assuming that they are the result of direct contact, unless that contact can be proved by independent evidence. It may well be that this passage in the laws of Ethelred, enacted with a view to the Scandinavian institutions prevailing in that portion of England which had been occupied by the Danes, represents an independent tendency of Scandinavian law. Moreover, before we are entitled to see here an origin of the jury, it will be necessary to establish continuity between the Law of Wantage and the jury as it existed after the Norman Conquest. This it is impossible to do, and here is the second lesson for those who would undertake historical investigation. The appearance of a principle or institution in one age, followed by the appearance of the same or a similar institution at a considerably later age, must not lead one to suppose that the later is derived from the earlier. Before this conclusion would be justified further evidence of continuity must be adduced; in the case now before us there is a gap of nearly two hundred years between the Wantage enactment and the next appearance of the presenting jury. Until that gap has been filled by showing continuity between the Anglo-Danish institution and the jury which is continuous from Anglo-Norman times, it would be unsafe to look to Ethelred’s law for the origin of the grand jury.1
2.
The jury for royal administrative inquiry
FRANKISH JURIES
The history of the jury has now been settled by the famous researches of Brunner,2 supplemented by those of Haskins,3 who from newly discovered evidence partly filled the gap which Brunner had to admit. This history certainly goes back to the early ninth century, when we find the Emperor Louis the Pious, son and successor of Charlemagne, ordering in 829 that for the future the royal rights shall not be ascertained through the production of witnesses, but by the sworn statement of the best and most credible people of the district.4 It seems that the government had little faith in the production of witnesses by parties who were disputing its claims; such testimony, it was felt, was sure to be interested. Instead, the Emperor undertook to compel the most considerable people of the county to declare upon oath what the customary royal rights were, and it may very well be that this method was more likely to produce the truth than the voluntary testimony of witnesses supporting their friends against the government. If we put ourselves for a moment in the place of a contemporary, we might imagine that there would be some grumbling at superseding an ancient institution of witness proof by the high-handed proceeding of compelling people selected by the government to speak on oath, whether they wished to or not. It might have seemed, perhaps, that the administration had usurped dangerous powers and was settling disputes in its own favour by unorthodox methods. To such an objection, if ever it were raised, history has given an answer: in the course of a thousand years this drastic administrative machine has been transplanted to an unknown continent, where by a strange twist of history it has become the constitutional bulwark of the public against the executive.
It has been suggested that Louis the Pious did not invent this, and that there was some precedent for the device as early as a law of Valentinian I (369), but the argument here is not quite so convincing—at least to Romanists, who are rather loath to admit the paternity of the jury. But from Louis the Pious onwards the evidence is clear enough, until the failure of the line of Charlemagne, when we come to a very obscure period—the darkest moment of the dark ages—and it was here that Brunner had to admit that there was a gap in his evidence.
3.
The jury for the trial of property cases
NORMAN JURIES AND ASSIZES
This gap has been filled to some extent (though not entirely) by the discoveries of Professor Haskins, who has accepted Brunner’s theory that the institution was carried over from the crumbling empire of the Carolingians to the new duchy of Normandy, and that the dukes used it there in much the same way as the emperors had before them.1
At first the jury had been used by the government only as a particularly drastic means of establishing its own rights. This indicates some dissatisfaction with existing methods of proof, and it is clear that this dissatisfaction was shared by litigants as well, for the next stage in the history shows us private persons seeking as a favour from the duke or the King the privilege of having their rights ascertained by means of an “inquisition”, as the institution was then called. In other words, the jury of administrative inquiry was on the point of becoming a jury of trial in civil procedure. Some lords, both lay and ecclesiastical, even went so far as to introduce the jury into their private courts without royal or ducal permission (as far as we can see). The crown therefore was in peril of losing its monopoly of jury trial, although it retained and developed the natural advantage of finding it easier to compel the attendance of jurors than did most other lords.
Henry I while he was duke of Normandy occasionally bestowed the privilege of trial by inquisition (or jury) upon a favoured church, such as Bayeux;2 Duke Geoffrey3 carried the process a step further and by means of an enactment, called an assize, made trial by inquisition the general method for all important litigation of a civil character.
INQUISITIONS IN ENGLAND
Very soon after the Norman Conquest the inquisition appears in England as an administrative device for obtaining all sorts of information useful to the government from an unwilling populace. The officers of William the Conqueror were told to—
“enquire by the oath of the sheriff and of all the barons and of their Frenchmen, and of all the hundred, of the priest, of the reeve, and of six villeins of every vill, what is the name of the manor, who held it in the time of King Edward, who now, how many hides, how many ploughs,—how many men, how many villeins... how much it was worth and how much now; and all this at three times, the time of King Edward, the time when King William gave it, and now”—1
and the answers were collected in Domesday Book. The Constitutions of Clarendon, which settled the controversy of Church and State in 1164, recount that—2
“This record or recognition was made in the year 1164 in the presence of the King concerning a part of the customs and liberties of his ancestors which ought to be held and observed in the realm. And by reason of the dissensions and discords which have arisen between the clergy and the King’s justices and barons concerning his dignities and customs, this recognition was made before the archbishop and bishops and clergy, and the earls, barons and nobles of the realm.”
Here we have the principle of the inquisition used to ascertain even such vague matters as the customary political relations between Church and State.
