Page:Harvard Law Review Volume 10.djvu/182

156 156 HARVARD LAW REVIEW. the foundation of all German law, and the very formula here used it probably adopted from the laws of the Franconian and Saxon Caesars." The use of a jury, both for criminal presentment and civil inquest, is mentioned for the first time in our statute law in the Constitu- tions of Clarendon. The manner in which the jury is referred to gives one the impression that it was already in common use. The statute declared that '* by the recognition of twelve lawful men," the Chief Justice should decide all disputes as to the lay or clerical tenure of land. By the Assize of Clarendon, it was ordained that in every county twelve lawful men of each hundred, with four lawful men from each township, should be sworn to present all reputed criminals of their district in each county court. The persons so presented were to be at once seized, and sent to the water ordeal. This was simply a revival, in an expanded form, of the old English institution anal- ogous to a Grand Jury, which, as we have seen, had existed at least since the time of Ethelred II. It was in the Grand Assize (the exact date of which is unknown) that the principle of recognition by jury, having gradually grown into familiar use in various civil matters, was applied by Henry II. in an expanded form, to the decision of suits to try the right to land. This Assize is called by Glanvill, a contemporary and the earliest of our judicial writers, a regalis institution In it we first find the jury in its distinct form, but the elements of which it was composed were all familiar to the jurisprudence of the time. By the Grand Assize the defendant was allowed his choice between wager of bat- tle and the recognition of a jury of twelve sworn knights of the vicinage summoned for that purpose by the sheriflf. The Assisa or Magna Assisa^ as it was usually termed, was a mode of trial confined to questions concerning (i) the recovery of lands of which the complainant had been disseised ; (2) rights of advow- sons ; (3) claims of vassalage affecting the civil status of the de- fendant. A writ was then addressed to the sheriff, commanding him to summon four knights of the neighborhood where the dis- puted property lay, who were, after they were sworn, to choose twelve lawful knights who were most cognizant of the facts {qui melius veritatem sciant)^ and who were upon their oaths to decide which of the parties was entitled to the land. The defendant was also summoned to hear the election of the twelve jurors made by the four knights, and he might object to any one of them. When