Willis : Anglo-American Law 
85 
body of men. While the ordeal obtained he could then be 
tried by ordeal. But after the abolition of the ordeal, in those 
cases where wager of battle did not apply, there was no 
method of trial except by a jury, either the same one which 
presented him or a second one. But a man could not be com- 
pelled to be tried “by the country” unless he consented. He 
was therefore sometimes tried by a second jury, and some- 
times he was asked to plead and if he refused suffered peine 
fort et dure until he was pressed to death if he remained 
contumacious. By the time of Bracton when a man put him- 
self upon the country, after he had been presented by the 
hundred jury, he was tried by a jury of twelve (inquest jury) , 
which determined his guilt or innocence of their own knowl- 
edge and not on evidence adduced before them. This was 
the origin of the petty jury. The judge might cross-examine 
the petty jurors to discover the reasons for their verdict, and 
impanel a new jury if the reasons were unsatisfactory, but it 
was not until long afterwards that the petty jurors lost their 
character as witnesses and became judges on the evidence 
given in open court. 
Whether or not the sworn inquest was the origin of the 
petty jury, in criminal cases, it was the origin of the jury 
in civil causes. Henry II extended the privilege of jury trial 
in the king’s courts to all of his subjects. The county and 
hundred courts refused to do this. Jury trial gradually be- 
came popular, and this helped the king’s courts very much 
in the process of supplanting the local courts. Trespass was 
tried only by jury trial. Hence the popularity of jury trial 
not only tended to bring business to the king’s courts, but 
to make trespass supplant other forms of action. The writ 
of right (grand assize) was triable by jury or battle, at the 
choice of the defendant. The assizes of novel disseissin, mort 
d’ ancestor, d’arrein presentment, and utrum were triable only 
by jury. The writ of ejectio firmae was a special writ in 
trespass. These actions also tended to give the king’s courts 
jurisdiction over the great mass of judicial business at the 
time, for real property included most of the substantive law 
then known. But it must be borne in mind that these civil 
juries, like the criminal juries, decided facts of their own 
knowledge rather then as judges of facts. This change in 
the nature of the jury came only at a later time. 
