(3) The Civil Jury owes its origin to quite a different set of reforms, though inaugurated by the same reformer. Among the evil legacies left to Henry II. from Stephen’s reign, not the least troublesome were the numerous claims advanced by rival magnates to the various estates and franchises which had been bestowed with equally lavish hands, but on different persons, by Matilda and Stephen. Henry realized the urgent need of giving his realm rest by protecting vested interests and by introducing a more rational expedient than trial by combat for deciding between rival claimants to landed estates. Here again he had recourse to a new development of “inquisition.” In such cases an option was given to the defendant (the man in possession, the man with a vested interest which deserved protection), to refer the question at issue to the verdict of local recognitors, twelve knights or freeholders in this case, and therefore men of some position. The name “Assize” was, for reasons to be immediately explained, applied alike to the procedure itself and to the twelve neighbours who gave the verdict.
This new expedient, perhaps because it was looked on with suspicion as an innovation of a violent and revolutionary nature, was applied at first only to a few special cases, namely, to certain disputes as to vested interests in land. It was used to settle claims of ultimate title—the out-and-out ownership of the land—and then it was known as the Grand Assize; it was also used to settle a few well-defined groups of pleas of disputed possession, and then it was known as a Petty Assize (of which there were, however, three distinct and well-known varieties).[[237]]
In these cases, the defendant could escape “battle” and compel the plaintiff, even against his will, to submit his claim to the verdict of the recognitors. This new-fangled privilege of the defendant had no basis in the ancient custom of the land, but depended solely on royal prerogative. The king, by a high-handed act of power, thus favoured the defendant, by depriving the claimant of that remedy which was his right by feudal law, namely, the resort to the legal duel. It was because the new procedure was thus founded on a royal Ordinance, that the name “Assize” was applied to it. The assisa was a remedy strictly confined to four groups of pleas.
By consent of both parties, however, disputes of almost every description might be similarly determined; being referred (under supervision of the king’s judges) to the verdict of local recognitors, usually twelve in number, who were then known as a jurata (not an assisa, the two being strictly opposed to each other). While the assisa was narrowly confined to a few types of cases, the jurata, since it favoured neither party, was a flexible remedy capable of indefinite expansion, and thus soon became the more popular and the more important of the two. Yet the ancient assisa and the ancient jurata, always closely connected, and resembling each other in most essential features, can both claim to be ancestors of the modern civil "jury,"—the name of the more popular institution having survived. Magna Carta, in providing for the frequent holding of the three Petty Assizes, marked a stage in the development of the Civil Jury; while, in enforcing the criminal procedure of Henry Plantagenet, and guarding it from abuse, the Charter had also a vital bearing on the genesis of the Grand Jury and the Petty Jury alike.
These scattered and incidental references to tendencies still vague and indefinite must not, however, be misread as a reference to the definite procedure into which at a later date they coalesced: Magna Carta does not promise “trial by jury” to anyone.
[231]. The source of this error was the identification of the judicium parium of chapter 39 with jury trial. This mistake is fully refuted infra under that chapter.
[232]. The theory now generally accepted that the origin of trial by jury must be sought in procedure introduced by the Norman Dukes and not in any form of popular Anglo-Saxon institutions is ably maintained by Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer, Evidence, p. 7. Undoubtedly their conclusions are in the main correct; but in their natural desire to remove misconceptions, they are possibly guilty of some slight exaggeration. Trial by jury may have had more than one root, and a full appreciation of the value of the Norman contribution need not lead to the total neglect of the Anglo-Saxon one. Accepted conclusions in this respect might profitably be supplemented by the opinions of Dr. Hannis Taylor, English Constitution, I. 308 and I. 323.
[233]. See supra, pp. [105-6].
[234]. See Pollock and Maitland, I. 131. It was part of Henry’s policy to substitute indictment by a representative jury for the older appeal by the wronged individual or his surviving relatives. The older procedure, however, was not completely abolished though looked upon with disfavour. Its continuance and also its unpopularity may both be traced in chapter 54 of Magna Carta. See infra.