far, has been said of the jury in criminal trials, and to this aspect of the question we must now turn.
4.
The jury for royal criminal inquiry
CRIMINAL LAW: THE GRAND JURY
A great deal of information of value to the King could be obtained by compelling the inhabitants of a small community to answer questions, to inform against evil-doers, to disclose mysterious crimes, and to tell of their suspicions. Here we come to royal rights which are not matters of property or custom, but rather possible sources of jurisdiction, and therefore of profit. An inquisition, vill by vill, had established the enormous tax-return called Domesday Book, but the inquiry into crime and criminals was also a matter of deep concern to the Crown, not merely as a matter of public policy but also as a source of revenue, for criminal jurisdiction with its fines and forfeitures was always lucrative.
By this means the transition was effected, and in the Assize of Clarendon (1166) we find the establishment of a definite system of inquisitions as part of the machinery of criminal justice which have come down to our own day1 as “grand juries”.
“Chapter I
“First the aforesaid King Henry established by the counsel of all his barons for the maintenance of peace and justice, that inquiry shall be made in every county and in every hundred by the twelve most lawful men of the hundred and by the four most lawful men of every vill, upon oath that they shall speak the truth, whether in their hundred or vill there be any man who is accused or believed to be a robber, murderer, thief, or a receiver of robbers, murderers or thieves since the King’s accession. And this the justices and sheriffs shall enquire before themselves.
“Chapter II
“And he who shall be found, by the oath of the aforesaid, accused or believed to be a robber, murderer, thief, or a receiver of such since the King’s accession shall be taken and put to the ordeal of water and made to swear that he was no robber, murderer, thief, or receiver of such up to the value of five shillings, as far as he knows, since the King’s accession....
“Chapter IV
“And when a robber, murderer, thief or receiver of such is captured as a result of the oath, the sheriff shall send to the nearest justice (if there are no justices shortly visiting the county wherein he was captured) by an intelligent man saying that he has captured so many men. And the justices shall reply telling the sheriff where the prisoners are to be brought before them. And the sheriff shall bring them before the justices together with two lawful men from the hundred and the vill where they were captured to bring the record of the county and the hundred as to why they were captured; and there they shall make their law before the justices.
“Chapter XII
“And if anyone is captured in possession of stolen or robbed goods and is of bad repute and can produce no testimony of public purchase nor a warrantor of title he shall not make his law. And if the goods were not publicly acquired he shall go to the water because they were found in his possession.
“Chapter XIV
“The lord King also wishes that those who make their law and clear themselves shall, nevertheless, forswear the King’s land if they are of bad renown and publicly and evilly reputed by the testimony of many lawful men, and cross the sea within eight days unless detained by the weather, and with the first favourable wind they shall cross the sea and never come back to England save by the King’s permission, and shall be outlawed, and if they come back shall be captured as outlaws.”1
5.
Ancient modes of trial
THE ORDEALS
An attentive study of this document will show the difficulties which confronted the government in the administration of criminal justice. The presenting jury from every hundred would very soon provide the royal officers with a goodly number of suspicious characters. But suspicion is not proof, and the presentment by the hundred, like its modern descendant, indictment by grand jury, is merely an accusation and not a conviction. Having found the suspects, how is the question of their guilt or innocence to be determined? The document we have just quoted mentions two methods, “making one’s law” and “going to the water”. We must now for a moment describe these and one or two other methods of trial then in use, for it was the limitations and uncertainties of the ancient methods which led to the development of the modern petty jury.
The most ancient of these was the ordeal, which took a variety of different forms. Its origin must date from before the introduction of Christianity, but the practice was so deep-rooted that the Church, in this as in other cases, felt bound to adopt it. In consequence we find the ordeal surrounded by Christian ceremonies which must, no doubt, have added considerably to its moral effectiveness—and perhaps even to its practical value as a psychological test of truth-telling. Of the several forms of ordeal in use the ordeal of hot iron was that most common for freemen. It was administered at the most solemn moment of the Mass; a special ritual was prescribed in the old service books telling us how the heated iron was to be carried by the accused over a distance of nine feet; then—
“the hand was sealed and kept under seal for three nights and afterwards the bandages removed. If it is clean, God be praised; but if unhealthy matter is found where the iron was held he shall be deemed guilty and unclean.”1
Another variant was the ordeal of boiling water, where the accused had to plunge his hand into a bowl of boiling water and take out a stone; his guilt or innocence was ascertained by inspecting his hand after three days. The ordeal of cold water was more often applied to the unfree. The accused was solemnly exhorted by the priest during Mass to confess his guilt if he were guilty; if he persisted in maintaining his innocence then—
“let the hands of the accused be bound together under the bent knees after the manner of a man who is playing the game of Champ-estroit. Then he shall be bound around the loins with a rope strong enough to hold him; and in the rope will be made a knot at the distance of the length of his hair; and so he shall be let down gently into the water so as not to make a splash. If he sinks down to the knot he shall be drawn up saved; otherwise let him be adjudged a guilty man by the spectators.”2
Still another variety of ordeal was that of the cursed morsel, which was used only for the trial of clergy. This consisted in making the accused swallow a piece of food in which was concealed a feather or such like; if he was successful, he was innocent, but if he choked he was guilty. Although the Church adopted the ordeals which it found in use among the populace, some of the more critical clergy had misgivings. Then also there was obviously the possibility of the priest manipulating the ordeal, and Peter the Chanter, a celebrated theologian of the university of Paris (ob. 1197), suggests that he had some sort of moral responsibility for the rightness of the result.1 Its abolition was rendered all the more difficult by the system of fees which grew up around it—always a powerful obstruction in the way of reform. A particular church, like St. Peter’s, Northampton, might have a monopoly of the proceedings;2 elsewhere, the archdeacon might be entitled to dues—as at Coventry where he received thirty pence for each ordeal.3
In the great majority of cases the ordeal was the accused’s mode of defence; yet on rare occasions we may find a prosecutor offering to undergo an ordeal himself in proof of his accusation,4 and in two cases of 1202 the accused was given the choice of bearing the iron himself or of letting the accuser do it—and naturally elected the latter procedure.5 Countless varieties of ordeal are still in use in different parts of the world among primitive tribes.6
WAGER OF LAW
The “wager of law” which we have just mentioned, although still essentially an ordeal, contained features which give the impression that