he had no estate of inheritance in them, and on a deed solemnly executed in open court by Adam, the father, in which he acknowledged that he held the two manors of the convent by agreement only for his life. Thomas de Burg thereupon applied for a writ to summon twelve knights to meet at Theocesberie (Tewkesbury), and take their oaths in the presence of the king. The assise met, and the deed was publicly read in open court; but it had no effect, because, as the chronicler says, 'they were all against us' (tota curia erat contra nos). The knights on their oaths said that they knew nothing of chartularies, or private agreements (juramento facto, dixerunt milites se nescire de cartis nostris, nec de privatis conventionibus); but that they believed that Adam and his father and grandfather, for a hundred years back, had held the manors in fee one after the other. And so,' says Jocelin, we were disseised by the judgment of the court, after much trouble and heavy expense, though we kept the old yearly rents.' This was certainly a flagrant instance of common repute being allowed to outweigh positive evidence; but we must not suppose it to be by any means a solitary case.

As the names of the jurors who were to form the assise were known beforehand, the temptation became great to endeavour to secure a favourable verdict by bribes, and the practice seems to have prevailed to a considerable extent, for no less than three statutes were passed in the reign of Edward III. which prohibited the offence under severe penalties. Jocelin de Brakelonde also gives an example of the

corruption of the times, and the danger of not propitiating the knights who served in the assise. The church of Boesford was vacant, and the abbot claimed the advowson. An assise was summoned, and five of the knights who were in the panel came to the abbot and offered to swear in any way he wished if he would pay them. He however refused, and bade them when they were sworn to speak the truth according to their conscience. Upon this they left him in anger, and declared upon their oaths in court that he was not entitled to the advowson.

Although twelve was the most usual, it was not the unvarying number of the jurors of assise for some years. In the infancy of the institution the number seems to have fluctuated according as convenience or local custom required. An instance of the former is mentioned in Jocelin's Chronicle. A fine had been imposed upon the counties of Norfolk and Suffolk, and the monastery of Bury St. Edmund's was called upon to pay its proportion. The abbot however hastened to the king (Henry II.), who was then with his court at Clarendon, and exhibited a royal charter of exemption from all fines and imposts granted by king Edward the Confessor to the lands of the convent. Writs were thereupon issued to summon six knights of the county of Norfolk and six of the county of Suffolk, to appear before the barons of the exchequer, and 'recognize' whether the lands of the monastery ought to bear part of a general fine imposed upon the county; and because they had lands in both counties, and in order to save trouble

and expense,' only six knights were chosen, who went to London, and there gave their verdict in favour of the abbot, which was enrolled by the justices'. On another occasion, when there was a question of jurisdiction between the abbot and the Archbishop of Canterbury, the former in the presence of the king offered to put himself upon the verdict of the two counties of Norfolk and Suffolk, that he and his convent had always had possession of the disputed franchise. The archbishop, however, said that the men of those counties had great veneration for St. Edmund (the patron saint of the monastery), and a large part of the lands in them were under the abbot's sway, so that he was unwilling to abide by their decision?. We find also in the same Chronicle that a verdict was taken by consent from sixteen lawful men of the hundred respecting the moiety of an advowson3. Indeed, it is tolerably clear from Glanvill's treatise that the law on this subject was by no means settled in his time, for he puts as a difficulty the case of there being no knights of the vicinage or county, or fewer than twelve acquainted with the facts in dispute, and he asks, without determining the point, whether, supposing in such an event those who were thus qualified as witnesses to be on the jury, were to offer to prove their assertion by the combat, it would be allowed? In the case 1 Justiciarii autem assidentes verumdictum illorum inrollaverunt. Chron. Joc. de Brakel. P. 48.

2 Ibid. pp. 37, 38.

3 Ibid. P. 45.

Tract. de Legg. 11. c. 21. In the manor of Penryn Farrein, in Cornwall, there was a custom to try an issue with six jurors, but

of an assise de mort d'ancestor, if the question were raised whether one of the parties was a minor or not, it was determined by the recognition or verdict of eight jurors'.

SECTION II. What suggested the idea of trial by Assise?

THE question now occurs, what gave rise to this institution of the assise, and whether it was developed from any modes of procedure previously existing? The theory of Phillips, a German writer who has investigated the history of our early jurisprudence with much learning and ability, is ingenious, and may be shortly stated as follows2.

Owing to the removal by William I. of ecclesiastical causes from the cognizance of lay judges, and the gradual increase of the jurisdiction of the Curia Regis, the provincial courts, such as those of the hundred and shire, lost much of their importance. The number of causes there diminished, and the chief amount of business was monopolised by the king's courts. But, as upwards of a century elapsed from

this was in 1652 adjudged to be no good custom. By the statute 34 and 35 Hen. VIII. c. 26, concerning Wales, it was provided that trials in the shire and hundred courts of the principality should be by verdict of six men.

1 Ibid. XIII. c. 15. The course of practice in the baronial, county, and other inferior courts, varied greatly. Ibid. xI. c. 6, 23.

2 See his Englische Reichs und Rechts Geschichte, 11. § 50.

3 While writing this sentence it is impossible not to be reminded that, owing to the recent establishment, or, perhaps we should more properly say, restoration of the county courts, the converse of the statement would now be true.

the arrival of the Normans before Justices in Eyre were regularly appointed to visit the counties and administer the law in the king's name, great inconvenience would in the meantime be felt in attending the Curia Regis under the old system of procedure. This court followed the king's person, whose movements were uncertain, and as the judicial combat, which was the usual mode of settling disputes, was hampered with many formalities and delays, parties often found themselves obliged to travel from place to place before they could obtain legal redress. Besides this, they would feel the want of judges to decide at the trial, who, like those in the county courts, were familiar with the parties and their cause of quarrel. Hence would arise a wish to provide if possible a tribunal similar to the king's court. The judicial members of the county court could not all be summoned to attend, for they had causes to try at home. Who then could be found to supply their place? It had, as we have seen, been the practice for the plaintiff, or, in some cases, the reeve, to nominate what may be called a panel of relations and neighbours, out of whom the defendant was to choose his compurgators; and, under the altered circumstances of the time, it seemed an obvious course to choose a similar panel from amongst the members of the court of the district in which the litigant parties dwelt. The number named would be sufficient to admit of valid exceptions being taken by the defendant against some of them, and yet leave upon the panel twelve to coincide with the number of the judges constituting the