In the course of the 12th and 13th centuries the old formal accusatory procedure began to break down, and to be superseded by another form of procedure known as _inquisitio_, inquest, or _enquête_. Its decay was hastened by the decree of the fourth Lateran Council in 1215, which forbade ecclesiastics to take part in ordeals. The Norman administrative system introduced into England by the Conquest was familiar with a method of ascertaining and determining facts by means of a verdict, return or finding made on oath by a body of men drawn from the locality. The system may be traced to Carolingian, and even earlier, sources. Henry II., by instituting the grand assize and the four petty assizes, placed at the disposal of litigants in certain actions the opportunity of giving proof by the verdict of a sworn inquest of neighbours, proof "by the country." The system was gradually extended to other cases, criminal as well as civil. The verdict given was that of persons having a general, but not necessarily a particular, acquaintance with the persons, places and facts to which the inquiry related. It was, in fact, a finding by local popular opinion. Had the finding of such an inquest been treated as final and conclusive in criminal cases, English criminal procedure might, like the continental inquisition, the French _enquête_, have taken the path which, in the forcible language of Fortescue (_De laudibus_, &c.) "leads to hell" (_semita ipsa est ad gehennam_). Fortunately English criminal procedure took a different course. The spirit of the old accusatory procedure was applied to the new procedure by inquest. In serious cases the words of the jurors, the accusing jurors, were treated not as testimony, but as accusation, the new indictment was treated as corresponding to the old appeal, and the preliminary finding by the accusing jury had to be supplemented by the verdict of another jury. In course of time the second jury were required to base their findings not on their own knowledge, but on evidence submitted to them. Thus the modern system of inquiry by grand jury and trial by petty jury was gradually developed.
Crime Review
Encyclopaedia Britannica, 11th Edition, Volume 10, Slice 1 — Part 43
Tags