Page:Harvard Law Review Volume 5.djvu/279

263 THE JURY AND ITS DEVELOPMENT. 263 Glanville simply says (c. 11) it is sub forma prescripta in hoc libra, — meaning, perhaps, the explanations about the writ of right in the second book. It is only there that he gives any such ex- planations. Glanville's last book (xiv.) deals with criminal cases, — de crimi- nalibus restat tractandum. Here, as yet, the jury has penetrated little; but here also it has come. The ordinary common-law [per legem terrae) mode of accusation is the private one, by appeal, and the ordinary mode of trial is battle or the ordeal ; for compurga- tion in the king's courts seems to have disappeared by the Assise of Clarendon. But sometimes one is accused by "public fame; " i. e., the accusing jury. In this case the judge must inquire carefully into the basis of this accusation per multas et varices inquisitiones et interrogationes coram justic faciendas inquiretur rei Veritas, et id ex verisimilibus rerum indiciis et conjecturis, nunc pro eo nunc contra earn qui accusaticr facientibus. 1 Sometimes the accused has an election whether to submit to the ordeal, and sometimes he is forced to it ; as in homicide, where he has been taken in flight by a pursuing crowd, if this be attested in court by a jury, si . . . hoc per juratam patrie fuerit in curia legitime testatum (c. 3 ; see also c. 6). One may decline battle for the reason of being sixty years old or over, or being maimed. But then he is driven to the ordeal (c. 1). Glanville often, throughout his work, speaks of referring inci. dental questions ad visinetum, of determining them per juratam patriae vel visineti. What has already been said may serve to show that this was sometimes under the king's ordinance (juxta assisam) by a recognition, and sometimes that it came about as a consequence of the judge's control over procedure, by agreement of parties, or by the outright award of the court. 2 II. We now come to the time when there are printed records, and cases can be cited. Henceforward we are on more solid ground, and may hope to trace more clearly the development of 1 Such was the office, in civil cases, of the secta — to make a charge probable. Harv. L. Rev. v. 47-51. These preliminary inquiries must not be confounded with the trial; Stephen appears to fall into this error. Hist. Crim. Law, i. 259-60. 3 This was done sometimes by the mere order of the king. In 1200 (Rot. Cur. Reg. ii. 189), an entry on the judicial rolls begins abruptly, yurata venit recognitura, &c. The jury finds that the sons of S. are the inheritors of a certain estate, ut eis videtur; and it is added, " notandum that this inquisition was made by order of the king, not by judg- ment of the court vel secundum consuetudinem regni. "