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

Elias being asked where he got that mare, says that she was given to him before the war [i.e. before 1215] together with some pigs at Cardiff in Wales by a man to whom he gave fencing lessons, that he had her for six weeks and brought her from Wales to this part of the country, and that he sold her to Edward for three shillings and a penny outside Waltham Cross. But he produces no suit of that sale, and admits that he and Edward were alone. So says Edward, and Edward also says that he had the mare for five years.

      “Hamo says that the mare was foaled to him and that he still has her mother, and that she was stolen at Easter in [1219] the third year of king Henry, and of this he has sufficient suit.

      “Elias being asked how he identifies the mare after so long a time, says by a mark, that is, by a slit in the ear.

      “Eight men of the vill of Cheshunt and as many from the vill of Waltham, of Wormley and of Enfield are summoned to certify the justices. Thomas of Muleton, Peter of Nereford and the four knights with the record are pledges for having Elias Piggun on [7 March, 1220] Monday before mid-Lent. A day is given them to hear their judgement on Monday before mid-Lent when they are to come unarmed. On which day they came, and Elias is committed to the Fleet gaol by the king’s council. Hamo’s pledges to prosecute are William the Tanner of London, and John del Hale.

      “The eight men of Waltham being sworn say upon their oath that according to their belief (for all the countryside say so) the mare was foaled to Hamo, was taken in the common of Cheshunt, and was found by Hamo in the plough of Philip le King, and that Edward gave her in marriage with his daughter to this Philip; and that after this plea was begun in the court of Cheshunt, Philip handed over the mare to Elias Picon the warrantor so that he could safely swear; and they say that in no other way was the mare Elias’ nor did he bring her into this part of the country. They further say that the mare worked in Philip’s plough for two years, so they think; and they rather think that Edward took her from the pasture by mistake and ignorance and not otherwise.

      “The eight men of Cheshunt being sworn, say that they do not know whether she was foaled to Hamo, and rather think that she was not; they are sure that Edward gave her in marriage to Philip as aforesaid, but they do not think that Elias ever sold her to Edward; but they are sure that Elias said before all the parish of Cheshunt that he did this for God’s sake, and asked all men to pray for him as truly as true it was that he did this for God’s sake and not for money; and so they rather think that he did this for God’s sake and not for any other reason. They have not heard anything about the marriage portion of Edward’s daughter.

“The eight men of Wormley being sworn say that they do not know whether she was foaled to Hamo or not; but they are sure that Edward gave her with his daughter in marriage to Philip, and they believe that Edward bought her, but they do not know from whom; they do not believe that Elias ever sold her to Edward.

      “The eight men of Enfield say upon their oath that they believe that the mare was Hamo’s and foaled to him, for everybody says so, and that Edward gave her as a marriage portion as said above; they are sure that Elias never sold her to Edward, but that he did this for money—for ten marks as they believe, of which he had five and five are owing to him; and some of them say that they think he did this so as to have Edward’s daughter in marriage as well as the money.

      “By the king’s council: the Earl of Brittany shall regain his court as regards Hamo and Edward, who have licence to compromise; and let Elias have his judgement in the king’s court. It is awarded that he lose his foot; and be it known that the king’s council is dealing with him leniently for by law he deserved a greater punishment.”

      It would be difficult to find one case which illustrated more points of mediaeval law than this one. Note the words of felony, and the vouching to warranty in the court below, and the way in which the appellee and his warrantors successively take seisin of the mare while the appellant recites his accusation; the method of recording pleas in courts which do not themselves bear record, and the possibility of verifying the record by battle;¹ note also that Hamo offers the King one mark (13s. 4d.) to have an inquest, as alternative to the ancient production of one witness who heard and another who saw. The king’s court did not stand on technicalities. The issue of the truth or otherwise of the record brought from the court below is not even considered, and Pateshull (for it was Bracton’s hero who was on the bench²) went straight to the points at issue—the ownership of the mare and the fraud of Elias.

      Hamo had purchased the privilege of having his charges investigated by a jury, and the roll shows us four juries of eight summoned from the four neighbouring vills. The proceedings, however, were singularly unlike a modern jury trial. It is true that the parties themselves were examined, but it was before the juries were summoned. The juries did not sit together, but returned four separate (and conflicting) reports—we can hardly call them verdicts. They say that they are sure of some things; others they “rather think” are true; some other statements they believe because “everybody says so”. They were not asked, and did not say, whether anyone was guilty or innocent. Nor were they witnesses, for none of them claimed to have direct knowledge of the happenings which they relate.

Such a proceeding can only be described as an inquisition. The court examined the parties, and examined thirty-two jurors, and upon the evidence so obtained, itself decided upon the guilt of Elias. If this system had become permanently established, we should have had a regular inquisitorial procedure, such as that described on the continent by Beaumanoir,³ with a judge deciding questions of fact as well as law, and examining parties and groups of local representatives whose function was not to state facts, nor to decide the question of guilt or innocence, but merely to retail the gossip of the countryside. Before the writ of 1219 the accused would have gone to his ordeal: but now the court finds him guilty on the unsworn statements of the parties, and on the juries’ sworn returns.¹

TRIALS ON INDICTMENT

      This was a logical development in cases of appeal, where the substitution of an inquest for battle or ordeal was frequently obtained. The case of indictment, however, presents a somewhat different situation, for the countryside has already spoken once. At times we find justices in eyre acting in a high-handed manner. Thus in 1221, in Warwickshire, they had before them Thomas de la Hethe, who was presented by the grand jury as an associate of a notorious felon named Howe Golightly; but Thomas refused to put himself on the country. Notwithstanding his refusal, the court declined to permit him any sort of ordeal, but realising the gravity of the situation they empanelled an impressive jury of twenty-four knights. The knights said he was guilty, and he was therefore hanged.² Even a villein who refused jury trial might have this panel of twenty-four knights.³

      So large and distinguished a trial jury clearly shows the court’s apprehension at compulsorily depriving a man of his right to trial by ordeal; but sometimes the situation was not so difficult. In this same year, 1221, an indictment found that the carcase of a stolen cow had been discovered in William’s shed. William did not claim any particular sort of trial, but said that the thing was put there by his lord who hoped that William would be convicted and so the lord get his land as an escheat for felony. The serjeant who arrested William stated that the lord’s wife had arranged for his arrest. In such a case the court simply asked the indictors for more information, and they related the whole story and so William was acquitted by the court, and the lord committed to gaol.⁴

In the case the court quickly detected the plot and merely needed confirmation. But what of cases of real doubt? It was these which caused the gravest difficulty after the abolition of the ordeals. Courts were naturally afraid to compel jury trial, and yet there seemed little else to do. If the case arose in a general eyre where a thousand or more jurymen and officials were present, it would be fairly easy to assemble a large collection of jurors (as was done by Pateshull in trying Elias), question them, and pronounce the prisoner guilty or not as a result. But if the proceedings were upon gaol delivery, for example, before non-professional judges with limited jurisdiction, that plan was less feasible. In most cases prisoners were persuaded to put themselves (more or less voluntarily) upon a jury. If they did not, there seemed no alternative but to keep them