A Concise History of the Common Law. Theodore F. T. Plucknett

case they were permitted to abjure the realm, there would still be suspicion that afterwards they would do evil, they shall be kept in our prison and safeguarded, yet so that they do not incur danger of life or limb on our account. But those who are accused of medium crimes, and to whom would be assigned the ordeal by fire or water if it had not been prohibited, and of whom, if they should abjure the realm there would be no suspicion of their doing evil afterwards, they may abjure our realm. But those who are accused of lesser crimes, and of whom there would be no suspicion of evil, let them find safe and sure pledges of fidelity and of keeping our peace, and then they may be released in our land.... We have left to your discretion the observance of this aforesaid order... according to your own discretion and conscience.”¹

      From this writ it will be seen that the justices were to be guided entirely by suspicion, and were to reach their conclusions as to the reasonableness of that suspicion solely from their own discretion. A rough scale was recommended whereby those suspected of greater crimes were to be imprisoned instead of suffering judgment of life or limb (as would have been the case if they could have been regularly convicted); those suspected of medium crimes were to be banished; lesser crimes were leniently treated, the suspect being simply bound over. This was only meant to be temporary, and obviously could be nothing more, for the whole compromise was based upon the fallacy that a half-proof of guilt was equivalent to a proof of half-guilt. The Crown, however, seems never to have given any further guidance to its justices, at least as far as the available sources show. The Church had abolished the one lawful means of trial, and the only suggestion which the Crown had made was a false and unworkable compromise.

      The problem was therefore left to be solved in a way typical of English law—the justices were to make such experiments as they saw fit and gradually feel their way towards a solution.

6.

       The jury as a new mode of trial

      EVOLUTION OF THE PETTY JURY

      Various devices which they tried have been traced with some success through the rolls. Even before the crisis of 1219 occasional cases are to be found of the presentment juries giving what has been called a “medial judgment”, that is to say, declaring what ordeal ought to be assigned. Again, a jury might be summoned to declare whether an appeal was brought “maliciously out of hate and spite” (de odio et atia). This issue was very frequently introduced by appellees who had purchased this concession from the Crown, and in fact came to be really conclusive as to the main question. It was, moreover, a first step in the direction of a criminal trial by jury, for after some years of hesitation it was realised that if a jury could by its verdict declare that an appeal was brought maliciously, there was no valid reason why it should not answer the straight question whether the prisoner was guilty or innocent.¹ We soon find that this last step was taken. It must be remembered that all these proceedings took place in the course of eyres in the early years of the thirteenth century, when that institution was in its most vigorous period. On such an occasion the King’s justices had before them a very considerable number of jurors making presentments from vills and hundreds, from boroughs and the county itself. A presentment would be made by the representatives of one of these vills or hundreds,² and in order to get a final verdict on the guilt or innocence of the prisoner the justices hit upon the device of associating with the presenting jury the juries of the four neighbouring vills; “afforced” in this way, the larger body then proceeded to answer the question whether the prisoner was guilty of the crime for which he had been indicted.

At first the judges exercised a good deal of discretion in making up the trial jury;³ at times they did not even trouble to add any further jurors at all, but merely inquired of the presenting jury whether the prisoner was guilty. At other times we find a very large body of jurors associated together as a trial jury—in one case we even find a jury of eighty-four persons. It seems, however, that in the early stages such a large body of jurors did not sit together, but was examined unit by unit, the verdict of the representatives from each of the different communities being taken separately. From the numerous verdicts so obtained (sometimes contradictory⁴ and sometimes expressed in terms of hesitation) the court formed its own conclusion and proceeded to judgment accordingly. Nor can we always say that these composite juries are giving verdicts in the modern sense of the word, for at times they merely provide the court with material upon which the court itself bases its finding of guilty or not guilty.

AN EXAMPLE OF THE NEW CRIMINAL PROCEDURE

      In order to illustrate the old and the new procedures the following case is translated in full, since it contains numerous points of interest. It occured in 1220 immediately after the writ mentioned above. Since Henry III was under age there was no court of king’s bench in regular session; hence, although it was a criminal case, it seems to have been heard in the court of common pleas upon a writ of false judgment which enabled royal courts to review the judgments of seignorial courts, although at a later stage of the proceedings the king’s council (representing the king’s bench during the minority) took part in forming the decision. The text from the plea roll is printed in Maitland’s Select Pleas of the Crown (Selden Society), no. 192.¹

      “Philip the son of Hervy, Robert the son of Humphrey, Henry the son of Andrew, and William the son of Richard, being four free men of the court of the Earl of Brittany in Cheshunt, and summoned to make record of a battle waged² in his court between Hamo of More, appellant, and Elias Piggun, appellee, concerning a stolen horse for which Hamo appeals, come and record that:

      “Hamo de la Mare complained in the Earl’s court that Philip le King stole his mare in his common pasture wickedly, feloniously and in larceny in the peace of God and in the peace of his lord the Earl; and this he offered to prove by his body as the court shall award for one hour of the day.

      “And Philip came and defended the wickedness, the felony and the larceny, and said that he had a warrantor thereof, that is to say, one Edward, and that he would produce him at the hour; and a day was given him to produce Edward. After making three essoins,³ Philip himself came and produced Edward his warrantor, and Edward entered into the warranty of the mare.

      “And when Hamo saw Edward seised of the mare, he spoke the same words against him as before, adding that he knew no other thief than this Edward whom he saw seised and who warranted the mare; and he offered to prove against him by his body.

      “And Edward denied everything, word by word, and vouched Elias Piggun to warranty, whom he produced with him. And Elias took the mare and entered into warranty, and said that he sold the mare as his own chattel to Edward.

      “When Hamo saw this Elias seised of the mare, he spoke against him saying he knew no other thief than this Elias whom he saw seised and who warranted against him, and that wickedly and in larceny and in the peace of God and the Earl he stole that mare (as before), and this he offered to prove against him, as the court should award, by his body.

      “And Elias defended everything word by word, and offered to act against Hamo concerning that mare as his own chattel, as the court shall award.

      “It was awarded that Elias should give gage for defending himself, and Hamo gage to deraign.

      “And Hamo says that in part they record well, and in another part too little, for when Elias was vouched to warranty and warranted the mare to Edward, he challenged him, Elias, as being a hired champion whom Edward brought in to become warrantor in return for money, whereof he produced sufficient suit; and that this is true, he offers to prove by one who heard and another who saw; and if this is not enough, he offers our lord the king one mark to have an inquest, for he says that he could not get this allowed him although he asked it.

      “And the said four men on behalf of the Earl’s court say that the record is as they have recorded, and not as Hamo says; and they offer to deraign that it is as they say by the body of a certain free man of the court, or otherwise as the King’s court shall consider; or to defend that it is not as Hamo says, as the King’s court