Page:Harvard Law Review Volume 10.djvu/179

153 GROWTH OF TRIAL BY JURY IN ENGLAND. 153 charters, continued in general use, alongside the Norman proced- ure, — the wager of battle, and the occasional use of the inquest by- sworn recognitors. The Conqueror was doubtless desirous that the English should still continue to enjoy the rights and usages to which they had been accustomed. Consequently we find that the distinctive features of the Anglo-Saxon jurisprudence were retained by the Conqueror. But he made, however, some important changes in the judicial system; he separated the spiritual and temporal courts; he introduced the combat, or duel, as a means of determin- ing civil suits and questions of guilt or innocence ; and he appointed justices to administer justice throughout the realm. It was only by degrees, however, that the advantages of the prin- ciple of recognition by jury in its application to judicial matters were realized- The sworn inquest appears to have been at first chiefly used for the determining of non-judicial matters, such as the ascertaining of the law of King Edward, the assessing of feudal taxation under William II. and Henry I., and the customs of the Church of York, which the last named monarch, in 1106, directed five commissioners to verify by the oath of twelve citizens. On one occasion the Conqueror ordered the Justiciars to summon the shire moots, which had taken part in a suit touching the rights of Ely ; a number of the English who knew the state of the lands in question in the reign of Edward the Confessor were then to be chosen; these were to swear to the truth of their depositions, and action was to be taken accordingly. But still there are equally early in- stances of strictly legal matters being decided by the recognition on oath of a certain number of probi et legates homineSy selected from the men of the county to represent the neighborhood, and testify to facts of which they had special knowledge. Recognition by jury was applied by Henry II. to every description of business, both fiscal and legal. The primitive German courts were tribunals of fully qualified members of the community, capable of declaring the law or custom of the country, and of deciding what, according to that custom, should be done in the particular case brought before them. They were not set to decide what was the truth of facts, but to determine what action ought to be taken upon proof given. The proof itself was furnished by the oaths of the parties to the suit and their com- purgators, the production of witnesses, and the use of the ordeal: trial by battle being a sort of ultimate expedient for obtaining a practical decision, an expedient partly akin to the ordeal as a judg-