Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 104

Henry II, when he became King of England, adopted the same policy as his father Geoffrey, and by a series of enactments, likewise called assizes, threw open trial by inquisition to the whole public, who could choose between half a dozen different procedures, according to the nature of their cases. Thus, the Constitutions of Clarendon, c. 9, in 1164 allowed a recognition or inquest to determine whether particular land was held by ecclesiastical or lay tenure.³ Two years later another assembly at Clarendon seems to have established the assize of novel disseisin.⁴ In 1176 mort d’ancestor was created,⁵ and probably in 1179 came the most striking extension of inquest trial⁶ when it was allowed as a matter of course (at the option of the defendant) to replace battle in the most solemn of all actions, the writ of right.

From this time onwards the word “assize” takes several new meanings; it began by signifying a solemn session of a council or a court, and soon came to mean an enactment made at such a meeting; among the most important of these assizes were those establishing trial by inquisition, and so it soon became customary to describe the inquisition of twelve men as an assize, while the various procedures leading up to this form of trial (which we should now call forms of action) were likewise called assizes. Finally, travelling justices were established in the thirteenth century in order to try these assizes more speedily, and these justices were naturally called justices of assize, and their sessions in the provinces were called the assizes.

All of this history (with the exception of the Law of Wantage) has therefore been concerned with the use of the inquisition as a means of trying royal rights, and later, by royal favour, the rights of litigants who have been fortunate enough to acquire the privilege, and finally its extension to everybody who makes use of certain procedures called assizes—whose nature we shall discuss more fully in treating of the forms of action. Nothing, so far, has been said of the jury in criminal trials, and to this aspect of the question we must now turn.