their places filled by others until a decision was reached. Then, too, we are told by an eminent historian that the jurors did not proceed upon fact as revealed in court, but upon their own previously formed opinion. Yet, we may say, that even under these cir cumstances it was superior to the former method of recognition by oath-helpers. It was a privilege whereby provision was made for the lives of men and the integrity of the state, as well, and in such a manner that the contesting party in maintaining their right in the possession of their free hold might not be exposed to the issue of a trial by battle. The principle from which it starts is that if in the course of pleading the litigants come to an issue of fact they may agree to be bound by a jury, and if they so agree, they will be bound thereby. The adoption of such a proceeding, based as it is upon the consent of the parties, is des tined to become a rule, for if any litigant refused to abide by it there would be a presumption that according to his own ideas his cause was unjust. As to the second use of the jury trial— its use in criminal proceedings—we may say that here we find it in its true English char acter. We have mentioned the fact that Henry II. brought it to a state of more or less perfection. It now remains to give a brief account of its extended usage as brought about by him. We have seen that the perm of the grand jury existed in Eng land before the Norman Conquest. We have seen it in the administration of the hundred before the Norman period. Now under Henry II. we see it assuming a definite char acter, a form which in some respects it would retain even to the present day. Concerning the jury of accusation we may say that by an Assize of Clarendon in 1162, twelve men from every hundred and four men from every township were sworn to present all who were suspected of having committed crime, for trial. These jurors were both judges and witnesses, producing
and giving evidence as well as rendering judgment. Their judgment, however, amounted to no more than an indictment, the justice of which was to be proved by subjecting the defendant to a trial by ordeal, or its alternative, trial by a second jury of twelve different men. This last jury was the petit jury. We have no proof as to the time it arose, and some doubt is even expressed of its being a differ ent jury than the one bringing the accusation in the period of which we are speaking, but according to the historian Forsyth, the separation of the grand and petit juries was certainly complete at the time of Edward III. In tracing the development of the jury in civil cases and its development in criminal cases we are surprised at their similarity. We are confident of their separation in early times, but in the eleventh and twelfth cen turies, the two juries, the civil and the criminal, are tending to coalesce, and by the end of the twelfth century we are unable to distinguish them. By another assize of Clarendon, 1194, twelve knights from each hundred answered for their hundred before the justices in eyre in matters criminal, fiscal and civil. Thus we see that the jury in civil cases and the jury in criminal cases at that time are one and the same, and since they continue the same their development is a common development. We now direct our attention to the time when the jury as witnesses and the jury as judges were separated. In the reign of Edward III. the jurors still retain their char acter as witnesses. They certify to the truth from their knowledge of the facts, no matter how they acquired it, but at the end of his reign we find a change taking place, and in the reign of Henry IV. this change becomes fixed. At this time it appears that the jury were allowed to base their verdict only upon the facts as shown in court, but their selection from the immediate vicinity in which the action was brought, and the fact that they sometimes returned a verdict with
