Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/671

 19. ZANE: THE FIVE AGES 657 to plead, but Berewick, the judge, calls up the client, takes him away from his counsel, and questions him so as to get repUes which are taken as pleadings. Pleading was at that day a voluntary act. VA criminal trial showed one of these judges at his best. Hugh, a man of importance, is arraigned upon an indictment for rape. He asked for counsel. " You ought to know," the Judge replies, " that the king is party here ex officio, and you cannot have counsel against him, though if the woman appealed you, you could." The pris- oner's counsel were then ordered to withdraw and did so. Hugh was then called upon to plead. Hugh replied that he was a clerk (a priest), and ought not to answer without his bishop. Then he was claimed for the bishop as a clerk. Thus it appears that the bishop had his representative sitting in court ready to claim the trial of any .one who said he was a clerk. But the Judge was evidently informed, for he replied: " You have lost your clergy, because you married a widow." Under the statute De Bigamis a priest who had married twice or had married a widow lost his right to be tried in the ecclesiastical court. " Answer," said the Judge, " whether j she was a widow or a virgin, and be careful, for I can call a jury is sitting in court ready to decide, by the knowledge of its members, controverted questions of fact. Hugh replies: " She was a virgin when I married her." The Judge calls ' upon the jury, who say that she was a widow. Then the Judge rules that he must answer as a layman, and asks him to consent to a jury trial. It is noticeable that the defendant in a criminal case must consent to a jury, a reminiscence of which is the question, and the answer of the prisoner, for cen- turies to come : " How will you be tried ? " " By God and my country," i. e. by the jury. But the prisoner objected that he was accused by the jury. (It is curious to note that the same jurymen acted as grand and petty jurors.) He further claimed that he was a knight, and the prisoner added : " I ought to be tried by my peers." The Judge gave him a jury of knights, who were called, and the defendant was asked if he had any challenges. But Hugh still refused to consent to a jury trial, and the Judge warned him of close confinement
 * upon the jury here to verify your statement." We note that