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upon as the real triers of the cause. A committee of the witnesses, therefore, rather than a committee of the court, would be the select body appointed for its consideration and settlement in the earliest attempts to escape from the confusion and perplexity of conflicting evidence. Those of the witnesses who were conceived to be the persons of greatest probity, or to be those best acquainted with the facts, would be chosen out from among the rest, and left to agree among themselves as to how the truth stood, -in other words, to try the cause. The persons thus set apart would probably be called upon to make their depositions with more form and solemnity than ordinary witnesses ; for instance, although the ordinary witness might be heard merely upon his declaration, the selected witness would be required to give his evidence upon oath. Finally, it would very soon become the custom for the selected witnesses, or triers, to be always of the same number; such a rule would be properly held to conduce to fairness of procedure; and besides, the popular feeling has always attached a certain virtue or importance to particular numbers.
In the above deduction we have in fact what appears to be the history of the origin in this country of trial by jury, in as far as it can be collected from the scanty notices that remain to us of changes which, however important they were destined to be in their ultimate results, were scarcely deemed worthy of being recorded by any contemporary chronicler, and the only memory of which that has come down to us has been preserved more by accident than by design. We know that, even in the Saxon times, it was occasionally the practice to select for the decision of a civil suit certain of the most reputable of the persons who professed to be acquainted with the facts in dispute, the parties agreeing together in their nomination, and consenting to abide by their decision or verdict. In the Norman times this became a more usual mode of trying causes, and it was now consequently subjected to more strict regulation. Nothing is better established than that the original jury, or body of sworn triers, were really the witnesses in the case, and that their verdict was their deliverance upon it from their own knowledge of the facts. At first this mode of trial appears to have been only occasionally and sparingly resorted to. Two instances are recorded in the reign of the Conqueror, one in a suit between the crown and Gundulphus, Bishop of Rochester, in 1078, the other in a suit respecting certain lands claimed for the bishopric of Ely in 1080. In the subsequent reigns the instances are more frequent. Sir F. Palgrave is of opinion that in criminal cases the jury was unknown in this country until enacted by the Conqueror. William, in a charter by which he professed to restore the laws of the Confessor, with certain additions, directed that, in the particular case of a charge made by an Englishman against a Norman, or by a Norman against an Englishman, the guilt or innocence of the accused should be determined by a tribunal of sworn witnesses, “according to the law of Normandy." The first regulation, however, which established the jury as a general mode of trial appears to have been one of the laws, or “assizes,” as they were called, enacted by Henry. II. at Clarendon, about 1176. By this law, to quote the account of Sir F. Palgrave, “the justices, who represented the king's person, were to make inquiry by the oaths of twelve knights, or other lawful men, of each hundred, together with the four men from each township, of all murders, robberies, and thefts, and of all who had harboured such offenders since the king's accession to the throne.” Another enactment of the same assizes abolished the trial by compurgation in criminal cases, except in certain boroughs. The verdict of the inquest, however, was not yet made final. The person charged by the twelve knights was still allowed to clear himself, if he could, by the ordeal of fire or water. Other laws of the same king, some of which, however, are only imperfectly preserved, appear to have established the inquest or “re
cognition” by the twelve lawful men as the regular mode of trial in various kinds of civil suits.
If the trial by battle was at all known in Saxon times, the earliest record of it in England is subsequent to the Conquest. The duel (or erneste, as its Saxon name appears to have been) would seem to be a still rudler mode of trial than any of those methods that were more peculiarly called the ordeal, as allowing, which they did not, mere physical force to be the main arbitrator of the dispute, and being therefore almost identical in principle with the mode of deciding quarrels which is proper to a state of nature. It is, probably, indeed, of greater antiquity than the ordeal ; yet it was neither supplanted by the ordeal, nor when that mode of trial was abolished did the duel even share its fate. It continued in common use for ages afterwards. The duel was undoubtedly looked upon as being, not less than the ordeal, an appeal to the judgment of God, and it was in virtue of this character that it retained its place as one of the allowed modes of trial in association with the ordeal. If it had been deemed to be a mere contest of physical strength, it is difficult to conceive that it ever should have been adopted as a mode of legal trial at all, and it certainly could not have kept its ground as such after the more refined principle of the ordeal came to be recognised. The belief was that Heaven would by no means allow the issue of the appeal to depend upon the thews and sinews of the two combatants, but would defend the right, if necessary by enabling the weaker man to overcome the stronger,—that is to say, by working a miracle, just as in the case of the ordeal. The duel and the ordeal therefore stood in the popular imagination upon the same principle. Why, then, when the ordeal was prohibited, was not the duel abolished along with it? To be enabled to answer this question we must recollect that the prohibition of the ordeal was by no means distinctly placed by the church upon the ground of the inherent absurdity of such a mode of trial,—of the fallacy of the notion that the special interference of Heaven was to be so secured. The practice was discouraged, and at last formally condemned as unlawful, on other grounds altogether, as has been shown above. It was denounced as impious rather than as fallacious or absurd. If it was admitted to be in any sense fallacious, it was merely in so far as the supposed appeal to Heaven might by dishonest management be rendered only apparent instead of real. The generally received opinion that the direct judgment of God in a cause might be obtained by being properly sought for was left unassailed. All that was affirmed was, that the ordeal of fire or of water, was not a proper mode of seeking for such judgment. The condemnation of these modes, therefore, did not necessarily touch the trial by combat. It lay under none of the objections on account of which they were condemned. It did not easily admit of collusion or any other species of unfair management. It was from its nature not likely to be resorted to upon trivial occasions, or to be taken advantage of in any circumstances as a mere form, but was always of necessity a solemn encounter, in which neither party could engage without peril of his life. Add to all this the accordance of the trial by combat with the martial spirit of the times, when prowess in arms was looked upon as almost the chief of human virtues ; and we shall be at no loss to understand the favour, or at least the toleration, which was shown to this mode of trial when the not more barbarous or more unjust custom of the ordeal was banished from the judicial practice of Christendom. Yet even within the period now under consideration an important step was taken towards the extinction of the appeal of battle in civil suits by a law of Henry II., which gave to both the tenant and defendant in a writ of right the alternative of having the case tried by what was called the grand assize, which was in fact merely a jury composed of four knights returned by the sheriff, and of twelve other persons named by them. The introduction of the grand assize is as
cribed to the advice of Glanville, who has in his book given a very particular description of it, and expatiated upon its great importance as an improvement of the law.
It is obvious that the entirely new form and character assumed by judicial proceedings, after the commencement of the practice of trying and deciding causes by evidence, would render the old machinery for the administration of the law altogether unserviceable. An exercise of the judgment was now called for on the part of the court, instead of merely an exercise of the faculty of observation. Judges were therefore of necessity appointed in all the courts. It is probable that this innovation was partially introduced in the Saxon times ; but it was not generally established till after the conquest. The general character of the Norman domination, under which all authority was held to proceed and to derive its being from the crown, was especially favourable to the completion of the new system. It appears to have been as early as 1118, in the reign of Henry I., that justices itinerant, or justices in Eyre, as they were called, were first appointed to go on circuits through the kingdom, for the holding of all pleas both civil and criminal. They were not however made a regular part of the judicature of the kingdom till 1176, the twentysecond year of the reign of Henry II.
72.-DEATH OF HENRY II.
THIERRY. [In 1183 another outbreak of the fierce and turbulent spirit of the princes led the way to a new succession of family wars. This time Richard took up arms against Henry and Geoffrey, because his father called upon him to do homage to Henry for Aquitaine. A reconcilement between the brothers, effected by their father's interference, only suspended hostilities for a few months; the old king and his son Richard were then compelled to take the field against the other two. After deserting his father and his youngest brother alternately about half a dozen times, Prince Henry was suddenly taken ill, and died at Château-Martel, 11th June, 1103, in the twenty-seventh year of his age. Geoffrey still held out, supported by the chief nobility of Aquitaine, where there was a strong feeling of the people against the English king for his treatment of their hereditary chieftainess Eleanor; but he too in a short time made his submission and implored his father's pardon. A solemn family reconciliation then took place, at which even Eleanor was released from her prison and allowed to be present. But it did not last for more than a few months; Geoffrey then, in consequence of his father refusing to surrender to him the earldom of Anjou, to the court of France, where Philip II. was now king, and prepared for a new war; but before he could carry his design into execution he was, in August, 1186, thrown from his horse at a tournament, and so severely injured that he died in a few days after. No sooner was Geoffrey thus removed than his brother Richard hastened to the French court to take his place ; but after unsuccessfully attempting to excite a new revolt in Aquitaine, he was compelled to throw himself upon his father's clemency. A project of a new crusade, at the call of pope Clement III., in the beginning of 1188, for a moment united Henry and Philip; the impetuous Richard actually took the cross, carried away by the feeling which thrilled all Europe on the arrival of the news of the capture of Jerusalem by Saladin in the preceding September ; but before the end of the same year the unhappy father saw his son again bearing arms against him in alliance with the French king. The pretext on the part of Philip and of Richard for this new war, was Henry's refusal to deliver up the princess Alice, the sister of the former, and the affianced bride of the latter, whose person as well as part of her dowry he had for many years had in his possession. Richard pretended to believe that his father wished
to marry the princess himself, and even asserted or insinuated that her honour had already fallen a sacrifice to Henry's passion ; it appears to be certain however that her restitution was only made a demand of the two confederates for popular effect, and was a very small part of their real object. Richard, having first done homage to Philip for all his father's continental possessions, immediately proceeded to wrest them from the old man by the sword. Henry's spirit seems now to have given way at last, and the resistance he offered to his son was feeble and ineffective.]
Without means of defence, and without authority, enfeebled in mind and body, he determined to solicit peace, offering to submit to any conditions which might be imposed. The conference of the two kings, (for it appears that Richard took no part in it, but awaited at a distance the issue of the negociations), was held in a plain between Tours and Azay-sur-Cher. Philip's demands were, that the king of England should expressly acknowledge himself his liege-man, and place himself at his mercy. That Alice should be given into the charge of five persons whom Richard should choose to guard her until his return from the crusade, to which he was to go with the king of France at mid-lent; that the king of England should renounce all right of sovereignty over the towns of Berry, which formerly belonged to the Dukes of Aquitaine, and that he should pay to the king of France twenty thousand marks of silver for the restitution of the conquered provinces ; that all those who had joined the son's party should remain vassals of the son and not of the father, unless they should choose of their own free will to return to the latter ; finally, that the king should receive his son Richard into his grace by the kiss of peace, and abjure sincerely and from the bottom of his heart all rancour and animosity against him.
The old king had neither the means nor the hope of obtaining more favourable conditions ; he therefore armed himself with patience as well as he was able, and conversed with king Philip, listening to his words with an air of docility, like one who receives law from another. They were both on horseback in the open field; and whilst they were conversing mouth to mouth, says a contemporary, it suddenly thundered, although the sky was cloudiess, and the lightning fell between them, without doing them any harm. They separated immediately, both extremely alarmed; after a short interval, they again approached each other ; but a second peal of thunder, louder than the first, was heard almost at the same instant. The king of England, whom the sad necessity to which he was reduced, his grief, and the weak state of his health rendered more susceptible of alarm, probably fancying some connection between this accident of nature and his own fate, was so agitated by it, that he let go his horse's reins, and tottered so in his saddle, that he would have fallen to the ground had he not been supported by those around him. The conference was broken up; and as Henry II. continued too ill to be present at a second interview, the conditions of peace, drawn up in writing, were carried to his quarters, that he might formally ratify them.
He was lying on a bed when he received the men sent to him by the King of France, and they read him the treaty of peace, article by article. When they came to that which mentioned persons engaged secretly or openly on Richard's side, the king asked their names, that he might know how many there were whose homage he was forced to renounce. The first they named to him was John, his youngest son; on hearing this name, seized by an almost convulsive movement, he raised himself on his seat, and throwing around him a piercing and woe-struck glance, said, “ Can it be true, that John my heart's darling, my favourite son, him whom I have loved above all the others, and for whose sake I have brought upon myself all these miseries, has also deserted me?” They replied that thus it was ; that nothing could be more true. “Well,” said he, falling back on his bed, and turning
his face to the wall, “ henceforward let things take their own course, I have no more care for myself or for the world.” Some moments after, Richard approached the bed, and asked his father for the kiss of peace, in execution of the treaty. The king gave it him with an air of apparent calmness; but as Richard was going away, he heard his father murmurin a low voice : “ If God would only grant that I might not die before avenging myself on thee !" On his arrival at the French camp, the count of Poictiers repeated these words to Philip and his courtiers, who raised shouts of laughter, and made many jokes on the good peace that had just been concluded between the father and son.
The King of Eugland, finding his illness increase, had himself conveyed to Chinon, where, in a few days, he fell into a state bordering on death. In his last moments, he was heard to utter broken exclamations in allusion to his misfortunes, and the conduct of his sons. “Shame,” he cried, "shame on a vanquished king! Cursed be the day I was born, and cursed of God be the sons I leave behind me." The bishops and churchmen who surrounded him, used all their efforts to make him retract this malediction against his children ; but he persisted in it till his latest breath.
After his death, his corpse was treated by his servants, in the same manner as that of William the Conqueror had been ; they all abandoned it, after having stripped it of its clothing, and carried off everything of value in the room and in the house. King Henry had wished to be interred at Fontevrault, a celebrated nunnery, some leagues south of Chinon ; it was with difficulty that men were found to wrap the body in a shroud, and a carriage and horses to remove it. The corpse was already deposited in the great church of the abbey, awaiting the day of burial, when count Richard was apprised by public rumour of his father's death; he went to the church, and found the king lying in a coffin, with his face uncovered, and still showing by the contraction of the features, traces of violent agony. This sight caused the count of Poictiers an involuntary shuddering. He knelt down, and prayed before the altar, but rose in a few moments, after the interval of a paternoster, say the historians of that time, and went out, not to return. Contemporaries declare that from the moment Richard entered the church, till he left it, streams of blood flowed incessantly from both nostrils of the deceased. The next day the ceremony of sepulture took place ; it was wished to decorate the corpse with some of the emblems of royalty ; but the keepers of the treasury at Chinon refused, and, after much entreaty, sent only an old sceptre, and a ring of little value. For want of a crown a sort of diadem formed of the gold embroidery of a woman's garment was placed on the king's head, and in this strange tawdry attire, Henry, son of Geoffrey Plantagenet, King of England, duke of Normandy, Aquitaine, and Brittany, count of Anjou and Maine, lord of Tours and Amboise, descended to his last abode.
A contemporary writer thinks he sees in the misfortunes of Henry II. a sign of the Divine vengeance upon the Normans, the tyrants of Conquered England. He compares this miserable death to those of William the Conqueror, of Henry II.'s brothers, and of his two eldest sons, who all perished by a violent death in the flower of their age. “This,” he says, was the punishment of their illegitimate reign." But, without agreeing with this superstitious opinion, it is at any rate certain, as far as concerns Henry II., that his miseries were the direct consequence of that fortune which had united the southern provinces of Gaul under his dominion. He had rejoiced over this increase of power as an increase of good fortune ; he had given his sons the countries of others as their appanages, glorying to see his family reign over several nations of different race and manners, and to unite under the same political yoke those whom nature had divided. But nature did not lose her