Page:Harvard Law Review Volume 5.djvu/281

THE JUR T AND ITS DE VEL OPMENT. 265 318-20), battle was offered and accepted in trespass, but the court refused to allow it. But the inquisition had its most interesting extension, and the one which it will be most profitable to trace, in criminal cases. Of this a very interesting account is given by Brunner (Schw. 469- 474). Here, as in civil cases, the incidental questions raised by an exceptio were often referred, by consent of the parties, or by the king's grace obtained by the offer of money, to an inquisition. Many instances of such offers for a jury to try the question, upon a special plea in criminal cases, are found in the reign of John. The commonest case of this sort, so far as our printed records show, was the plea, on an appeal, that it was brought maliciously, to disinherit or otherwise injure the appellee, whose innocence is also alleged, — the exceptio de otto etatia} These pleas often involved practically a decision of the main question of guilt or innocence. By the Magna Carta of King John (art. 36) such writs were no longer to be sold and bought but given as of right. 2 In this way, then, it seems to have been possible, even before the decree of the Fourth Lateran Council, in this same year of 12 15, to apply the jury to criminal cases whenever the accused asked for it. But how if he did not ask for it ? The Assise of Clarendon, in 1166, with its apparatus of an accusing jury and a trial by ordeal is thought to have done away in the king's courts with compurgation as a mode of trial for crime ; and now the Lateran Council, in forbidding ecclesiastics to take part in trial by ordeal, was deemed to have forbidden that mode of trial, as well in England as in all other countries where the authority of the Council was recognized. 3 1 Instances of this, in 1200, may be seen in Rot. Cur. Reg. ii. 30, 97, 230, and 265; the last-named case reappears, in 1 207, in Seld. Soc. Pub. i. , case 54. In this last volume interesting instances, of the years 1202-5, are found, at cases 81, 87, 91, 92. See also case 161, in 1221. In case 79 (1203), on a plea to an appeal,of a previous concord and settlement, the appellee offers two marks to the king for an inquest, and has it. 3 Nichil detur vel capiatur de cetero pro brevi inquisitionis de vita vel membris sea gratis concedatur et non negetur. 8 "The next eyre . . . took place in the winter of 1218-19. The judges had already started on their journeys when an order of the king in council was sent round to them ... : ' When you started on your eyre it was as yet undetermined what should be done with persons accused of crime, the Church having forbidden the ordeal. For the present we must rely very much on your discretion to act wisely according to the special circum- stances of each case.' " The judges were then given certain general instructions : Persons charged with the graver crimes, who might do harm if allowed to abjure the realm, are to be imprisoned, without endangering life or limb. Those charged with less crimes, who