The justiciars were a part of the Curia Regis, and dispensed the sort of justice which the French knew as in palatio. The work was distinct from that of the hundred and shire courts, and soon became so burdensome that the work of the justiciars was distinct from that of the king's court proper, the central court at London, and the Witenagemot.1

"The jury properly so-called does not seem yet to have been in existence, for it is not mentioned in the various compilations of the first hundred years.

"2

Yet there are numerous points of resemblance in the cases cited in these compilations which show that they were paving the way for it. As in the case cited above, several men were to be chosen from the assembly who knew the answer to the specific question, the information was given under oath, and, what was peculiar to the Norman period, it was representative of the county. The mode adopted, then, in AngloNorman times was to refer the question to the knowledge of the comitatus or county, to be represented by a certain number of the inhabitants. there was no consideration of anything more than convenience in the royal administration of the law is shown repeatedly. The interpretation of the law was left to the justiciars; all that was imposed upon the jurors was to answer a specific fact within their own. knowledge. The justiciars would determine in the institution of the inquest what that question was; the

That

'Reeves, History of English Law, 88-91; Pollock and Maitland, I, 122, 129; Forsyth, 99.

2 Forsyth, 98.

See Forsyth, 141-143.

very proposing of the question constituted a charge to the jury; the answer was in effect a verdict.

§ 5. THE FIRST ENGLISH STATUTES MERELY

DECLARED AND PROVIDed ProceduRE FOR THE COMMON LAW. The most important act of Henry II's reign was the enactment of the assizes, the basis of the most important English laws. The word "assize" comes from the old French "assise" (Latin assideo, assisa), and means literally a sitting. Thence it comes to mean the issue of a sitting, that is, an enactment. Thus the assizes of Henry II were laws; but they were a special kind of law providing a mode of legal procedure. The name came very soon, from the convenience of the situation, to mean, when attached to a modifying phrase, a certain procedure, and the general term "assize" meant the sitting of the court or trial by jury.

The writs of assize were the instruments of instituting a procedure; indeed, they have now become by development "the groundwork of all civil justice. Following the issue of this writ, the tenant (defendant) may have a writ of prohibition to the hundred court or shire court informing them that jurisdiction has been assumed by the king's court. Then the plaintiff, if the defendant refused battle might have his auxiliary writ, summoning four knights of the county and neighborhood to choose twelve others of the same neighborhood qui melius veritatem sciant, ad recognescendum super sacramentum.3 These auxiliary writs were probably known in Norman times. At any rate, the

1 Pollock and Maitland, 129.

Thayer, Preliminary Treatise of the Law of Evidence, 61; Forsyth, 126.

3 Thayer, ibid., quoting Glanville.

final writ, the writ of execution, granted judgment, in the time of William Rufus, and indicates that the case was duly decided by a jury: sicut testimoniata et jurata fuit.

It is very plain that these assizes were one-sided.

"The claimant had to offer battle; the possessor, if he pleased, might refuse battle and put himself upon the 'grand assize.' This was a special provision decreed by the king, 'that no man need answer for his free tenement without royal writ'; he decreed also that, in a proprietary action for land the defending party might have the action removed into the king's court and the whole question of right determined by an inquest of his neighbors."

This was a recognition of the true relation between. local and national jurisdiction. The defendant was then summoned by an auxiliary writ to hear the election of the twelve jurors made by the four knights summoned by the sheriff, at the direction of the king.

In Anglo-Saxon times, disputes concerning land were decided by the voice of the community of the county or hundred, as the case might be, where the parties lived. As England developed, this could not have continued. Under the Norman kings a select number was chosen from the whole, representative of the best opinion; under Henry the Second, a permanent system of administering justice was developed upon the old basis of local justice and established as a national institution by its centralization. The writs and the jurata were provided in technical form so that all might be acquainted with them. The jurata was

1 Thayer, 53.

2 Pollock and Maitland, I, 126

limited to knights, to be sure, but its very existence made its extension inevitable. The king found the inquest in William the First's reign a convenient means of administering the fisc; the knights and the clergy found it convenient to assert their claims in this way. Later, under John, the barons were ready to make demands, and a bill of rights already existed in the instrument and the institutions the king had been using. The jury helped to build up royalty, also, against the barons; in this struggle the people were the ultimate gainers, for the weak were made to feel through centuries that they were protected against the strong.1 In short, the extension of the jury under Henry II was the basis of the common law of England. It rescued and formulated all that was best in the Anglo-Saxon privileges; it was the foundation for the development of the rules of evidence, the safeguard against arbitrary ruling, and the agent for building out the machinery of justice to suit the complex needs of modern times.

§ 6. LOCAL ADMINISTRATION OF NATIONAL JUSTICE AND REPRESENTATIVE NATIONAL GOVERNMENT UNDer COMMON OR UNWRITTEN CONSTITUTIONAL LAW. - Trial by jury had worked out the representative principle not only in local self-government but in national affairs. "In 1295, Parliament had assumed the form which it since has retained, and comprised in its membership not only lords spiritual and temporal, but knights of the shire, and representatives of the cities and boroughs." " From 1295 on, the relation of

2

1 See Palgrave, History of the English Commonwealth, Part I, 276, 277; Freeman, Norman Conquest, V, chap. 24; Forsyth, 143.

Gardiner and Mullinger, Introduction to English History, 80.

!

Parliament and king was that of executive and legislative. This was the expression and logical development of the relations of the countryside with the Conqueror, this in turn being a later expression of the relation between the pagus and the princeps.

The principle of local self-government gave national life to England and political liberty to the people. The common law, through the development of the jury, was no longer in any danger of being other than national; the rights of individuals and towns being placed in constitutional provisions.

A few days after his father's death, Edward II was recognized as king, in July, 1307. The actual coronation did not take place until Sunday, February 24, 1308, at Westminster. The first Parliament had met at Northampton, October 13, 1307. Its business was to make arrangements for the coronation, the funeral of the late king, and the marriage of Edward II to Isabella, daughter of Philip the Fair. To cover the expenses of these occasions Parliament made a grant to the king. The clergy gave a fifteenth, the counties a twentieth, the cities, the boroughs, and the ancient demesnes, a fifteenth, of their movables.1

The oath which Edward II took was indicative of the change brought about by Edward I. It gave the first official expression to the maxim "That which touches all shall be approved by all." One of the four new promises exacted was this: "Sire, do you grant to keep and to hold the laws and righteous customs which the community of your realm shall have chosen?" And the king answered, "I grant and

1 Stubbs, Constitutional History, II, 315; Smith, History of the English Parliament, 182.