Page:Harvard Law Review Volume 5.djvu/273

257 THE JURY AND ITS DEVELOPMENT. 2 $7 answered that it was unheard of that they or their ancestors should be compelled to take an oath. It was set forth to them that in many cases, for the common welfare, the king is above the leges et consuetudines in regno suo usitatas; and thereupon many times was the book held out to them, but they refused. (PI. Abb. 227, col. 2.) In old times this denial of the king's power of compul- sion was a denial of such power anywhere. And it is in this sense probably that we are to understand Home, in the "Mirror," a little later (c. v. s. 1), when he said, in enumerating abuses : " La primier et la soveraigne abnsion est que le Roy est oustre la ley. 1 ' Home thought it an abuse that one shouldn't be allowed to try his case by battle or the ordeal. He says this in terms. And again, as to a class of criminal cases : " It is an abuse that the justices drive a true man to be tried by the country when he offers to defend himself against the approver by battle." (2.) Of the phrases that we meet so often, recognitio and as- sisa, some illustration may be convenient. The solemn declara- tion, in certain matters affecting the clergy, made in 1164 and ordinarily called the Constitutions of Clarendon, is itself styled, in the document, ista recordatio vel recognitio; while in chapter ix. it provides for settling certain cases recognitione duodecim le- galiicm hominum. In the Assise of Northampton (1 176), at § 4, relating to the writ of mortdancestor, it is directed that the justices cause a percognitionem to be taken by twelve lawful men, et sicut recognition fuerit ita, etc. The word " recognitio," meaning thus a solemn acknowledgment, declaration, or answer, came to be mainly limited to " the in- quisitions which under the ducal ordinance {secundum assisam) were started by a ducal writ." 2 Of the term " assise," Brunner (Schw. 299) says, " In England the technical expression ' assisa ' got established for recognition in the narrower sense. Assisa means, in the first place, the thing, the assembly, as well judicial as legis- lative. In its extended sense, it means what belongs to such an as- sembly, the judgment or the ordinance. As to these specific assises which introduced the recognitions, the term ' assise ' has passed over to them." Of the use of the word " assisa " as meaning the ordi- nance itself, we see illustrations both in the title and the text of the assises of Clarendon and Northampton, 2 of the Assise of Arms 1 Brunner, Schw. 293-4. And see a French document of 1267, specifically giving this meaning to the word, ib. 294-5. 3 Ass. North, s. 5.