Page:Harvard Law Review Volume 5.djvu/284

268 268 HAR VA RD LA W RE VIE W. and that there is no good thing in his favor ; accordingly it is ad- judged, " convictus est, ideo, etc.," i.e., he is to be hanged. In 1226 (id. iii., case 1724), Henry le Dreys is appealed by an approver in whose company he had been taken. He is not in frank-pledge, and has no lord to vouch for him, and does not offer in any way to purge himself, 1 et ideo suspendatur, etc. There was irregularity and looseness. In 1219 (Br. N. B. ii. 6j), the itinerant justices are punished for hanging men without trial, who were not taken with the mainour, had not confessed, and apparently had not put themselves on a jury : they had carried the current practices too far, and applied them to persons who had indeed befriended a near relative who appeared to be a thief, and who, while not confessing, had not satisfactorily denied receiving the stolen goods. The twelve jurors of the hundred had been re- ferred to, and had given them a bad name, had " heard say " that the stolen goods were divided on their land, etc. Whether by reason of this sort of loose practice, or the prevalence of old ideas, or for whatever reason, it seems to have become the rule that standing mute was not confession, and that the accused could not be put on his trial by a jury without his consent. Of course the matter might have been covered by an "assise." But it was not; on the con- trary, towards the end of the century we find a remarkable statute which seems to recognize the doctrine that consent was neces- sary, and provides a punishment (peine) for refusal, of a nature to induce consent. The Statute of Westminster the First (3 Edw. I. c. 12) enacts, in 1275, that "Notorious felons, openly of ill fame, 1 One is said to clear himself (purgare se) by a jury, in Br. N. B. ii., case 19; and so elsewhere. It is interesting to notice that our word " trial," and its family, are little used at this time, and the fact points to a very important difference between old and later conceptions. Let any one turn, for instance, to the index to the Parliament Rolls at "Trial," and verify the references. The usual phrases at the period now in question are probatio, purgatio, defensio; seldom or never triatio. In one form or another triare (French trier) may indeed be rarely seen in our earlier books, as, e.g., in Bracton, fol. 105 (say, A. D. 1259); Fleta, Book 4, c. II, s. 4 and 5 (say, 1290), Britton, f. 12 (say 1291-2); and the Mirror, c. 3, s. 34 (early in the next century). In Y. B. 30 & 31 Edw. I. 528 (1302), it is said of challenges to several jurymen, triebantur per residuos de duodecim. The phrase grew common in this century. In 1353 (Pari. Rolls, i. 248, pi. 1 2) we read that if there be a plea between merchants before the Mayor of the Staple, et sur ceo pur trier en't la verite enqueste ou proeve soit a prendre, if both are foreigners soit trie per estranges, if both are denizens, soil trie per denzeins, etc. ; and in 1382, the Stat. 6 R. II. st. 1, c. 6, provides that, rei Veritas. . . per inquisitionem trietur. Everybody knows that in the sixteenth century, e. ?., in the Abridgments, it was in as familiar use as it is to-day.