156 The Period of Constitution Making
service and won its renown in safeguarding the liberties
of the people from the encroachments of monarchy; while
through the jury outside the courts the king drew the
people into all sorts of public work and responsibility,1
even the House of Commons growing largely out of the
jury principle. On the continent, the sworn inquest had
no such development. From Charlemagne to William the
Conqueror, it had remained almost unchanged, and every-
thing which has made it a notable or admirable institution
it has gained on English soil.
There was little change in the inquest until the reign of
Henry II. William I. and succeeding kings had occasionally
used it in connection with judicial matters,2 but there was
no regularity or special purpose in such use; if the king
were interested in a certain case and wished the facts, he
would use this method, just as in other subjects of local
inquiry. When Henry II. made use of it in determining
whether a disputed holding were free alms or lay fee, he
was not applying it to a new subject-matter; but when
this preliminary procedure in the king's court grew into
the assize utrum, this royal method of learning the truth
necessarily became the most important part of the pro-
cedure in the new action. The same thing was true of the
other new actions of this reign; and, in the old actions
that were drawn into the king's court, the jury trial be-
came optional with one or both parties to the suit.3 It
1 See below, Pt. III., § II., 4, passim.
2 For examples, see A. and S., document 2, and W. and N., pp. 51-55.
3 In this connection arose the technical distinction between assize and
jury. The assizes, i.e. the grand assize and the four petty assizes (the three
possessory assizes and the assize utmm) were perfected by Henry II.
through definite legislation. In them the new procedure by jury—assize
it was called in these cases—-was obligatory. In them the question of fact
was formulated in the original writ and the first step was the summoning
of^the jury by the sheriff. In other civil actions in the king's court, the
original writs said nothing of a jury; but if a question of fact arose in the
pleadings it was optional with the parties whether or not this should be
submitted to a jury—jury here used in a narrower, technical sense to dis-
tinguish it from assize. This might happen even in the assizes, where, if
through an exception raised by either party the question of fact came to
differ from that stated in the original writ, the parties might consent to
submit it to a jury, and, as it was said, the assize was turned into aj«ry.
The a?sizes were limited in number; the great growth of the jury in civil