Criminal appeals were not abolished until 1819, consequent upon the case of Ashford v. Thornton. (p) Ashford appealed Thornton in the King's Bench on a charge of murder, and Thornton wagered battle. In consequence the 59 George III. c. 46 was passed abolishing criminal appeals. In Anglo-Saxon times it was the practice for twelve thegns of each wapentake to present criminals, and this appears from a law of Ethelred. No doubt this practice continued after the Conquest, but the criminal jury is first mentioned in the Assize of Clarendon, 1166. By the Assize of Northampton, 1176, all criminals accused before the justices on the oath of twelve knights of the shire, or on the oath of twelve lawful freemen and of four men from each town, were to go to the ordeal of water. If he failed at the ordeal he was to lose a foot and a right hand, and exile himself within forty days. But in cases of murder or baser felony he must abjure the kingdom in forty days, whether acquitted by the ordeal or not. When ordeal was abolished by the Lateran Council in 1215 no method remained of testing the truth of the accusation brought by the presenting jury, thus the practice arose of allowing a second or petty jury to try the truth of the accusation. The accused was not compelled to plead, but if he stood mute he had to undergo the peine forte et dure, which consisted in pressing the defendant with heavy weights and feeding him on bread and water on alternate days. The peine forte et dure existed down to 1726, (q) but has long since fallen into disuse, and by 12 George III. c. 20 it was enacted that in cases of felony standing mute should be equivalent to a conviction, and by the 7 & 8 George IV. c. 28, in case of a person standing mute in treason, felony, piracy, or misdemeanour, the court may order the proper officer to enter a plea of not guilty on his behalf, and such plea is to have the same effect as if the prisoner himself had pleaded not guilty. At first the petty jury, like the grand jury, spoke from their knowledge of the facts, and not from evidence given in court; later on, witnesses and documents were allowed to supplement the knowledge of the jurors, and under Henry IV. the practice of hearing evidence in open court became (p) (1818) 1 B. & Ald. 457. (g) Burnwater's case. See ante, p. 216; Steph. Hist. Crim. Law, i. 298. established. In the reign of Mary the jury were not summoned on account of their special knowledge of the facts, rather they were supposed to be in ignorance, and it has remained so up to the present day. Procedure before and after the Revolution.-(1) Before the revolution of 1688 the prisoner was kept in more or less secret confinement, and could not prepare his defence. (2) No notice was given him of the evidence to be produced against him. (3) There were no rules of evidence, nor was he confronted with the witnesses. (4) He had no counsel before or at trial. (5) He was not allowed to call witnesses on his own behalf, and if he did they were not examined on oath. After the Revolution of 1688. (1) In 1695 (7 & 8 Will. III. c. 3) persons indicted for high treason or misprision of treason were to have a copy of the indictment five days before trial; they could summon witnesses on oath, and counsel were allowed to defend. (2) In 1708 (by the 7 Anne, c. 29) the prisoner could have a list of the witnesses and jury ten days before trial. (3) In 1702 (by the 1 Anne, st. 2, c. 29) in treason and felony the prisoner's witnesses were to be sworn. (4) By 6 & 7 Will. IV. c. 114 all prisoners accused of felony may be fully defended by counsel; and a person committed for trial or held to bail may have a copy of the depositions of the witnesses taken against him. (5) Now, by the Criminal Evidence Act, 1898, (r) every person charged with an offence, or the wife or husband of the person charged, is rendered a competent witness in all cases, but only upon the application of the person charged and subject to the provisions of the Act. The Independence of Juries.-Juries were not at first independent, and were liable to be fined and imprisoned for a wrong verdict. There was possibly some reason for this when the jury gave a verdict from their own knowledge, for in the (r) 61 & 62 Vict. c. 36. case of a wrong verdict they would then be committing perjury, and where this was suspected, the first jury were put upon their trial before a second or grand jury of twenty-four by writ of attaint. If the verdict went against them, they were imprisoned for a year, forfeited all their goods, and were rendered infamous for ever. (s) Attaint seems to have fallen into disuse, but was not finally abolished until 1825. (t) Juries were, however, frequently fined by the Star Chamber for giving a verdict manifestly against the weight of evidence, or contrary to the direction of the judge. (u) Thus in 1534, Sir Nicholas Throckmorton having been accused of treason, and acquitted by the jury, the latter were brought before the Star Chamber and imprisoned; four of their number were released on acknowledging their offence, but the remainder were fined, some £2000, others 1000 marks; but it appears these penalties were subsequently reduced. (x) After the reign of Elizabeth there were not many cases of this kind, but after the Restoration two successive chief justices (Hyde and Keeling) revived the practice, which was declared illegal by a Resolution of the House of Commons in 1667. (y) Eventually, in 1670, the independence of juries was finally established by Bushell's case. (2) In this case the recorder of London, on the acquittal of Penn and Mead on a charge of unlawful assembly for having preached in the streets of London, fined the jury 40 marks each. One of the jurors, Bushell, was committed for nonpayment of the fine. Thereupon he sued out a writ of habeas corpus, and on the return to the writ in the Common Pleas, Mr. Justice Vaughan held that the grounds of the commitment were insufficient. Since then the independence of juries has not been questioned. We may note that if the grand jury consider there is sufficient evidence they find a true bill; if not, they ignore the bill. The most notable case of this was Shaftesbury's case in 1681, when, the accused being brought before a grand jury on (s) Bl. Comm., iii. 389 et seq. (t) 6 Geo. IV. c. 50, s. 60. (u) See 23 Hen. VIII. c. 3; 13 Eliz. c. 25; 11 Hen. VII. c. 24. (y) Journ. H. of Com., the 16th of Oct. 1667. (7) (1670) St. Tri. 999. a charge of high treason, the latter returned an ignoramus, although he was manifestly guilty. The power of a judge to dismiss a jury who, after a reasonable time has elapsed, cannot agree on a verdict, was not settled until the case of Winsor v. the Queen in 1866. (a) The Legal Profession. Origin. In early times there was no trained class of lawyers, and in the reign of Henry III. laymen and clerics seem to have been appointed judges of the King's Court indiscriminately, no particular knowledge or study of the law being essential to the holding of such a post. In very early days a litigant appears to have been allowed (except in cases of felony) to bring with him into court friends with whom he might confer before pleading, and a practice seems to have sprung up as early as the reign of Henry III. of allowing a friend (amicus curia) to address the court on his behalf. (b) In these unprofessional friends, who took no remuneration for their services, we can trace the origin of the present solicitors and counsel. By the Statute of Merton, 1236, the right was conceded to every freeman of being represented by attorney at the county, trything, hundred, wapentake, and manorial courts. (c) At this period there seems to have been permitted also a countor or advocate, who could address the court (corresponding to the old amicus curia), whilst the attorney, who was at first merely a lay friend, simply represented the litigant in court, and whether the latter was allowed to address the court seems open to doubt. In the reign of Edward I. a definite class of professional lawyers first appears. The king had a number of trained pleaders styled serjeants-at-law (servientes ad legem), and there were also about the courts a number of young men, the apprentices of the serjeants (apprenticii ad legem), engaged in the study of the law. (d) (a) (1866) L. R. 1 Q. B. 289. About this period (towards the close of the thirteenth century) it seems that the two professions of attorney and countor (or serjeant-at-law) became definitely separated, the mayor and aldermen of London having passed an ordinance that no countor was to practise as an attorney. (e) From this point, then, we may consider the two professions separately. Barristers. The old informal class of advocates, then, represented by the amicus curice and later on the countor, seem to have formed themselves into a definite professional body about the reign of Edward I. The English law had now become systematized by the writings of such men as Glanvill and Bracton, and from 1292 onwards we get the Year Books giving the reports of cases and legal decisions, so that it became more and more necessary to have trained advocates as the weight of precedent and the consequent necessity for the knowledge of case law grew. Another factor which tended to promote the growth of a professional class of advocates was the fixing of the Court of Common Pleas at Westminster, which took place in the reign of Henry III., it having previously been made a provision of John's Great Charter that the Common Pleas should no longer follow the king. Later on the King's Bench followed the example of the Common Pleas and sat only at Westminster. Thenceforth the professors of English municipal law formed themselves into an aggregate body, and as the universities confined their teaching to the civil or Roman law, and as in that alone degrees were conferred by them, it became necessary to establish colleges of their own in which the English common law might be taught and degrees conferred. Accordingly they purchased various houses known as the Inns of Court and of Chancery situated between Westminster and the City of London, in which the sons of gentry, noblemen, and others resided to pursue the study of the common law, and in which degrees were conferred; and these societies were farther fostered by an order issued by Henry III. in the nineteenth year of his reign to the mayor and sheriffs of London, which prevented any law schools within the city (e) Pol. & Mait., i. 195. |