Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/672

 658 V. BENCH AND BAR on bread and water, if he did not consent. So Hugh con- sented, and asked that his challenges be heard. The Justice: " Freely, read them." Then Hugh makes a slip : " I don't know how to read." The Justice : " How is this, you claim the privilege of clergy, and don't know how to read ? " Then the prisoner stands much confused; but the Judge calls on a bystander to read the challenges to the prisoner, who speaks them. The challenged jurors are excused. Then the judge states the charge to the jury and the jury say that the woman was ravished by Hugh's men. The Justice : " Did Hugh consent?" The jury: "No." The Justice: "Did the woman consent.?" The jury: " She did," and there- upon Hugh was acquitted. But who can say whether he was acquitted because the woman consented, and yet would have "been considered liable criminally for the acts of his servants .-^ The counsel, however eminent, cannot wheedle the judges. In one case, Howard and Lowther on the same side urged a certain form of judgment. To Howard, Berewick replied: " We tell you that you never saw any other judgment under these circumstances, and you will get no other judgment with us." Then Lowther argued with the Court, but Bere- wick was firm: " You will get no other judgment from us." Again, Howard is on the bench, and Asseby says : " I think you would not give judgment in this wise, if you were in the case," but Howard mildly replies : " I think you are wrong, wherefore answer." But sometimes indulgence is shown. To a count challenged as bad, the Court say : " It would have been formal to have done this, but we will forgive him this time; but let everyone take care in the future, for whoever shall count in this manner, his writ shall abate, for it behooves us to maintain our ancient forms." In those days the counsel stated the proposed pleadings orally, and if held good by the Court they were reduced to / legal form by the clerks. To the present day our pleadings J still speak as if the party were in open court stating his pleadings. At this earlier stage of the common law the pleadings were necessarily all true. Whenever counsel in his pleading reaches a point as to which he is not advised, he imparls and seeks his client or the attorney for further