Page:Harvard Law Review Volume 5.djvu/269

253 THE JURT A ND ITS DE VEL OPMENT. 253 in 1080, or soon afterward (Big. PI. A. N. 24), when, in order to settle a litigation as to certain lands held of the Church of Ely, turning on the question of who held when Edward the Confessor died, the king directs the summoning of three shires and various nobles, and orders that out of these, several (plures) English be chosen to tell, under oath, the facts ; and it is directed (with certain qualifications), that matters shall be adjusted according to the answers. Of uncertain date in the reign of the Conqueror, who died in September, 1087, is the case of Bishop Gundulf, of Rochester, v. Pichot, Viscount of Cambridge, 1 in which on a great controversy as to whether certain lands belonged to the king or " St. Andrew," the king ordered that it be referred to the judgment of all the men of the county, — in other words, to the county court. The county awarded it to the king. The presiding officer, Odo, Bishop of Bayeux, doubted this award, and directed that the county should choose twelve of their num- ber to confirm it by oath. 2 These retired, and then returned and swore to what had been said by the county court. A year after- wards a monk who had once been steward of the region in ques- tion, and knew this to be false, raised some question about it ; this resulted in confessions of perjury from the one who led in the oath, and from another ; and in the condemnation and punish- ment of all who swore. 3 This case shows the Anglo-Saxon procedure, that of the Germanic popular courts, viz., judgment by the whole assembly. But it also shows the interference of the king's representative, and a resort to an inquest of twelve, chosen under his orders by the county from its own members, and speak- ing under oath. In the reign of William Rufus, in 1099 4 we have what has been called "the earliest record of anything like a modern judicial iter by the royal justiciars." It does not ap- pear by what methods the judges proceeded. In another case a 1 liig. PI. A. N. 34; s. c. Essays in Anglo-Saxon Law, 374 (with the date 1072-1082), Reeves (Hist. Eng. Law, Finl. ed. 137) refers to this as being "the earliest mention of anything like a jury." ity to require the oath, if dissatisfied with the unsworn answer. " Ite et videte divisas . . . et facite recognoscere per probos homines de comitatu et dividere. . . . Et si bene eis non eredideritis, sacramento confirment quod dixerint." Palg. Eng. Com. ii. 184, note; s. c. Big. PI. A. N. 139. 8 Those who had not confessed were adjudged perjured, quandoquidem Me, postquam alii jur aver ant se perjurum esse fatebatur.
 * So in the reign of Henry I. (1100-1135) the king in his writ gives express author-
 * The King v. The Abbot of Tavistock, Big. PI. A. N. 69.