Henry II, when he became King of England, adopted the same policy as his father Geoffrey, and by a series of enactments, likewise called assizes, threw open trial by inquisition to the whole public, who could choose between half a dozen different procedures, according to the nature of their cases. Thus, the Constitutions of Clarendon, c. 9, in 1164 allowed a recognition or inquest to determine whether particular land was held by ecclesiastical or lay tenure.3 Two years later another assembly at Clarendon seems to have established the assize of novel disseisin.4 In 1176 mort d’ancestor was created,5 and probably in 1179 came the most striking extension of inquest trial6 when it was allowed as a matter of course (at the option of the defendant) to replace battle in the most solemn of all actions, the writ of right.
From this time onwards the word “assize” takes several new meanings; it began by signifying a solemn session of a council or a court, and soon came to mean an enactment made at such a meeting; among the most important of these assizes were those establishing trial by inquisition, and so it soon became customary to describe the inquisition of twelve men as an assize, while the various procedures leading up to this form of trial (which we should now call forms of action) were likewise called assizes. Finally, travelling justices were established in the thirteenth century in order to try these assizes more speedily, and these justices were naturally called justices of assize, and their sessions in the provinces were called the assizes.
All of this history (with the exception of the Law of Wantage) has therefore been concerned with the use of the inquisition as a means of trying royal rights, and later, by royal favour, the rights of litigants who have been fortunate enough to acquire the privilege, and finally its extension to everybody who makes use of certain procedures called assizes—whose nature we shall discuss more fully in treating of the forms of action. Nothing, so far, has been said of the jury in criminal trials, and to this aspect of the question we must now turn.
4.
The jury for royal criminal inquiry
CRIMINAL LAW: THE GRAND JURY
A great deal of information of value to the King could be obtained by compelling the inhabitants of a small community to answer questions, to inform against evil-doers, to disclose mysterious crimes, and to tell of their suspicions. Here we come to royal rights which are not matters of property or custom, but rather possible sources of jurisdiction, and therefore of profit. An inquisition, vill by vill, had established the enormous tax-return called Domesday Book, but the inquiry into crime and criminals was also a matter of deep concern to the Crown, not merely as a matter of public policy but also as a source of revenue, for criminal jurisdiction with its fines and forfeitures was always lucrative.
By this means the transition was effected, and in the Assize of Clarendon (1166) we find the establishment of a definite system of inquisitions as part of the machinery of criminal justice which have come down to our own day1 as “grand juries”.
“Chapter I
“First the aforesaid King Henry established by the counsel of all his barons for the maintenance of peace and justice, that inquiry shall be made in every county and in every hundred by the twelve most lawful men of the hundred and by the four most lawful men of every vill, upon oath that they shall speak the truth, whether in their hundred or vill there be any man who is accused or believed to be a robber, murderer, thief, or a receiver of robbers, murderers or thieves since the King’s accession. And this the justices and sheriffs shall enquire before themselves.
“Chapter II
“And he who shall be found, by the oath of the aforesaid, accused or believed to be a robber, murderer, thief, or a receiver of such since the King’s accession shall be taken and put to the ordeal of water and made to swear that he was no robber, murderer, thief, or receiver of such up to the value of five shillings, as far as he knows, since the King’s accession....
“Chapter IV
“And when a robber, murderer, thief or receiver of such is captured as a result of the oath, the sheriff shall send to the nearest justice (if there are no justices shortly visiting the county wherein he was captured) by an intelligent man saying that he has captured so many men. And the justices shall reply telling the sheriff where the prisoners are to be brought before them. And the sheriff shall bring them before the justices together with two lawful men from the hundred and the vill where they were captured to bring the record of the county and the hundred as to why they were captured; and there they shall make their law before the justices.
“Chapter XII
“And if anyone is captured in possession of stolen or robbed goods and is of bad repute and can produce no testimony of public purchase nor a warrantor of title he shall not make his law. And if the goods were not publicly acquired he shall go to the water because they were found in his possession.
“Chapter XIV
“The lord King also wishes that those who make their law and clear themselves shall, nevertheless, forswear the King’s land if they are of bad renown and publicly and evilly reputed by the testimony of many lawful men, and cross the sea within eight days unless detained by the weather, and with the first favourable wind they shall cross the sea and never come back to England save by the King’s permission, and shall be outlawed, and if they come back shall be captured as outlaws.”1
5.
Ancient modes of trial
THE ORDEALS
An attentive study of this document will show the difficulties which confronted the government in the administration of criminal justice. The presenting jury from every hundred would very soon provide the royal officers with a goodly number of suspicious characters. But suspicion is not proof, and the presentment by the hundred, like its modern descendant, indictment by grand jury, is merely an accusation and not a conviction. Having found the suspects, how is the question of their guilt or innocence to be determined? The document we have just quoted mentions two methods, “making one’s law” and “going to the water”. We must now for a moment describe these and one or two other methods of trial then in use, for it was the limitations and uncertainties of the ancient methods which led to the development of the modern petty jury.
The most ancient of these was the ordeal, which took a variety of different forms. Its origin must date from before the introduction of Christianity, but the practice was so deep-rooted that the Church, in this as in other cases, felt bound to adopt it. In consequence we find the ordeal surrounded by Christian ceremonies which must, no doubt, have added considerably to its moral effectiveness—and perhaps even to its practical value as a psychological test of truth-telling. Of the several forms of ordeal in use the ordeal of hot iron was that most common for freemen. It was administered at the most solemn moment of the Mass; a special ritual was prescribed in the old service books telling us how the heated iron was to be carried by the accused over a distance of nine feet; then—
“the hand was sealed and kept under seal for three nights and afterwards the bandages removed. If it is clean, God be praised; but if unhealthy matter is found where the iron was held he shall be deemed guilty and unclean.”1
Another variant was the ordeal of boiling water, where the accused had to plunge his hand into a bowl of boiling water and take out a stone; his guilt or innocence was ascertained by inspecting his hand after three days. The ordeal of cold water was
