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 in prison, for if they were not convicted, they were still not acquitted.
THE INSCRUTABLE JURY
Under such circumstances, a jury was just a newer sort of ordeal. The judges, after the brief period of hesitation already mentioned, cease to play the part of inquisitors and no longer undertake to examine it or weigh its report; the jury states a simple verdict of guilty or not guilty and the court accepts it, as unquestioningly as it used to accept the pronouncements of the hot iron or the cold water. Since it is taken by consent there is no need to look too closely at the method by which the verdict was reached. At first, the jury was no more regarded as “rational” than the ordeals which it replaced, and just as one did not question the judgments of God as shown by the ordeal, so the verdict of a jury was equally inscrutable. It is but slowly that the jury was rationalised and regarded as a judicial body.
JURY TRIAL BECOMES COMPULSORY
The Crown did not feel too confident, however; the petty jury in criminal trials was a makeshift expedient and an innovation. Under the old law a prisoner could undoubtedly have been compelled to submit to the ordeal and to abide by any construction which the justices might place upon the outcome of it; but was it reasonable to compel a man to submit to trial by jury? Even the Crown felt that this was unreasonable, and it soon became customary to put the astonishing question to the prisoner whether he consented to trial by jury. If he refused to say the necessary words and “put himself upon the country” it seemed as though nothing further could be done. If such a prisoner could have spoken the language of modern constitutional law he would very likely have raised a doubt whether trial by jury in criminal cases was “due process of law”, for the time-honoured methods of trial were the ordeals, and the petty jury was a new-found device of very recent origin. Put in a quandary by a prisoner’s refusal to plead, a court could only exercise its discretion by adopting one or another of several high-handed courses. Sometimes, as we have already noted, it would cast the responsibility on a larger jury of twenty-four knights; alternatively, it might allow the prisoner to abjure the realm, even for homicide,1 while for lesser charges a prisoner could purchase (for 20s.) the privilege of merely finding sureties.2
Towards the close of the century the Crown felt strong enough to impose jury trial by sheer force, and the Statute of Westminster I, c. 12 (1275), provided—
“that notorious felons who are openly of evil fame and who refuse to put themselves upon inquests of felony at the suit of the King1 before his justices, shall be remanded to a hard and strong prison as befits those who refuse to abide by the common law of the land; but this is not to be understood of persons who are taken upon light suspicion.”
This statute begins with a threat and concludes with an argument; could there be any better indication of the government’s difficulty in imposing trial by jury? It is surely noteworthy that in 1275 it was found expedient to declare by statute that the petty jury was now “the common law of the land” even if the rigours of that common law were to be confined to “notorious felons”. Conservatives perhaps found comfort in the proviso that jury trial or its painful alternative was not to extend to those whose reputation was not too bad. As is well known, the words “prison forte et dure” by some unaccountable means became transformed into “peine forte et dure”, and finally into a form of torture which, by the sixteenth century, took the barbarous form of placing the accused between two boards and piling weights upon him until he accepted trial by jury or expired. Felons whose guilt was obvious sometimes heroically chose to die in this manner rather than plead, be convicted and hanged, for a prisoner who died under peine forte et dure had never been tried and never convicted, and consequently his goods and chattels could not be forfeited to the Crown. It was abolished in 1772.2
RATIONALISATION OF JURY TRIAL
By the middle of the thirteenth century, moreover, the justices had finally chosen the simpler procedure. Instead of taking separate verdicts from numerous vills and hundreds, they selected a petty jury of twelve from among the numerous jurors present in court, and took the verdict of these twelve. It regularly happened that at least some of these twelve had also been members of the presenting jury, for it must be remembered that the whole principle of jury trial was to get information useful to the Crown from those people most likely to have it—the principle of the ancient inquisition. It is at this point that we first find signs of a rational approach to jury trial. The indictors were under some pressure to maintain their accusation and a subsequent acquittal occasionally landed the indictors themselves in prison.1 It is therefore clear that a prisoner could not expect a disinterested verdict from a petty jury consisting wholly or partly of indictors. Those with sufficient court influence could obtain certain procedural favours. Thus, Prince Edward (afterwards Edward II) sent a letter in 1305 to Brabazon, J., on behalf of one of his friends who was indicted for murder, asking that he be tried by a fresh jury on which none of the indicting jurors were present.2 We sometimes find prisoners challenging petty jurors on the ground that they had sat on the grand jury—a challenge which shows that the petty jury is now
