Chapter 38 of Magna Carta, according to a plausible interpretation of

an admittedly obscure passage, seems to insist on the necessity of such an accusation by the jury:—“_non ... sine testibus fidelibus ad hoc inductis_.”

(2) By insisting that the ordeal was the only adequate test of an accused man’s guilt or innocence, Henry unconsciously prepared the way for a second form of jury. When the fourth Lateran Council in the very year of Magna Carta forbade priests to countenance ordeal by their presence or blessing, a death-blow was really dealt to that form of procedure or “test,” since it depended for its authority on superstition. A canon of the Church had thus suddenly struck away the pivot on which Henry had made his entire criminal system to revolve. Some substitute required urgently to be devised. It was to supply this that the petty jury (or its rude antecedent) came into existence. The man who had been publicly accused as _presumably_ guilty by the voice of his neighbours, was asked if he was willing to stand or fall by a further and final reference to the oath of a second jury of neighbours. This second verdict, then, was the new “test” or “law” substituted, if the accused man agreed, for his old right of proving himself innocent by the ordeal. By obscure steps, on which those best entitled to speak with authority are not yet agreed, this jury, giving a second and final verdict, gradually developed into the criminal jury of twelve, the petty jury of to-day, the characteristics of which are well known and which has had so important an influence on the development of constitutional liberties in England, and even, it is said, on the national character.

Another expedient of Henry’s invention must have aided the movement in the direction of the criminal jury, namely, the writ _de odio et atia_ by applying for which a man “appealed” or accused of a crime might substitute what was practically a jury’s verdict for the “battle” which had previously, in the normal case, followed “appeal” as a matter of course.[236]

Footnote 236:

For fuller details see _infra_ under chapter 36, and _supra_ p. 108.

(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]

Footnote 237:

These three Petty Assizes are mentioned by name in c. 18 of the Great Charter, and under that heading the entire subject is more fully discussed. See _infra_.

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.