Page:Harvard Law Review Volume 5.djvu/83

67 THE OLDER MODES OF TRIAL. 6j These were regarded as a special boon to the poor man, who was oppressed in many ways by the duel. 1 It was by enactment of Henry II. that this reform was brought about, first in his Norman dominions (in 1 1 50-52), before reaching the English throne, and afterwards in England, sometime after he became king, in 1 1 54. Brunner (to whom we are indebted for the clear proof of this) remarks upon a certain peculiar facility with which the jury made head in England, owing, among other reasons, to the facts (1) that the duel was a hated and burdensome Norman importation, and (2) that among the Anglo-Saxons, owing to the absence of the duel, the ordeal had an uncommonly wide extension, so that when, a generation later than the date of Glanville's treatise, the ordeal was abolished, there was left an unusually wide gap to be filled by this new, welcome, and swiftly developing mode of trial. 2 The manner in which Glanville speaks of the great assize is very re- markable. In the midst of the dry details of his treatise we come suddenly upon a passage full of sentiment, which testifies to the powerful contemporaneous impression made by the first introduc- tion of the organized jury into England. 3 Selden has remarked upon the small number of battles recorded as actually fought. 4 The publications of the society which bears his honored name is now bringing to light cases of which he 1 For instance, we are told that " Saint Louis abolished battle in his country because it happened often that when there was a contention between a poor man and a rich man .in which trial by battle was necessary, the rich man paid so much that all the champions were on his side and the poor man could find none to help him." Grandes Chroniques de France, publiees par M. Paulin, Paris, vol. 4, p. 427, 430, al. 3. Cited in Brunner Schw. 297, note. 2 Schw. 397. 8 Glanville, lib. 2, c. 7. This well-known passage runs in substance thus: The Grand Assize is a royal favor, granted to the people by the goodness of the king, with the advice of the nobles. It so cares for the lives and estates of men that every one may keep his lawful right and yet avoid the doubtful chance of the duel, and escape that last penalty, an unexpected and untimely death, or, at least, the shame of enduring infamy in uttering the hateful and shameful word [" Craven "] which sounds so basely in the mouth of the conquered. This institution springs from the greatest equity. Justice, which, after de- lays many and long, is scarcely ever found in the duel, is more easily and quickly reached by this proceeding. The assize does not allow so many essoins as the duel ; thus labor is saved and the expense of the poor reduced. Moreover, by as much as the testimony of several credible witnesses outweighs in courts that of a single one, so much does this process rest on greater equity than the duel. For while the duel goes upon the testi- mony of one sworn person, this institution requires the oaths of at least twelve lawful men.
 * Duello, cc. 8 and 13.