154 The Period of Constitution Making
been briefly described that must be mentioned again here.1
These were the suitors to the local courts who acted as
judges, the compurgators, and the sworn witnesses. Their
analogues are found among other Teutonic peoples, and
in looking for a possible germ of the jury these institutions
first attract attention. Here were representative men of
the community, and, in both civil and criminal suits,
their neighbours' fate lay largely in their hands. Are
they not, then, like a jury? Looking at the matter in an
untechnical way, there is an element of truth in the sug-
gestion. The developing English jury of the thirteenth
and fourteenth centuries derived some of its sanction and
spirit from the Teutonic notion of a popular and local
source of justice, which doomsmen,2 compurgators, and
sworn witnesses all illustrate. But this is a matter quite
apart from the question of the jury's institutional origin.
In returning to that, it is useful to contrast briefly the
sworn inquest of William I. with these three institutions.
The suitors of the local courts were judges largely in their
discretionary application of the proofs to the cases in
hand.3 The compurgators were men who swore with
the plaintiff or defendant, basing the oath however upon
no knowledge of the facts of the case. The witnesses were
brought into court to swear to a set formula, the nature of
which they knew in advance.4 The inquest was a royal
1 See above, pp. 17, 18, 21-23.
2 The name given to the group of suitors who often exercised the judg-
ing function for the whole body.
s "When both the jury and the body of doomsmen are already estab-
lished institutions, the transformation of doomsmen into jurors may be
possible, and this transformation may actually have taken place in our
manorial courts. . . . But that the jury should have originally grown
out of a body of doomsmen seems almost impossible. ... A verdict,
even though it may cover the whole matter that is in dispute between the
litigants, even though* it may declare that William has a better right to
Blackacre than has Hugh, differs essentially from a judgment, a doom
adjudging the land to William. Even though the form of the verdict and
its conclusive force be such that the judgment must follow as a mere mat-
ter of course, still between the sworn verdict and the judgment there is a
deep gulf." P. and M., i., 139.
4 " The witness is called in by the party—the party to whom the proof
has been awarded—to swear up to his case; the juror is called in by the
sheriff or by the court to swear to the truth whatever the truth may be."
Maitland, C. H. E., p. 119.