266 HAR VARD LA W RE VIE W. The judges would naturally turn to the inquest. But this had not been used heretofore in criminal cases without the consent of the accused ; and the action of the judges took the course of gain- ing his consent and stimulating it. Somehow or other it eventually became the received opinion that one accused of crime could not be tried by the country unless he should plead and put himself orrthajt mode of trial. It was so in Normandy; * and this may well sug- gest that the fundamental reason of it was one common to both countries; viz., the struggle of the old conceptions as to judicial authority in adjusting themselves to the new procedure. But there was an unsettled time at first, and some persons were tried by jury and hanged who never had consented to the jury. 2 There was ground for this course in the usages of the King's Court in both civil and criminal cases. If the tenant in a writ of right put himself on the grand assise, the question as regards the demandant was not whether he consented, but whether he had a good reason for re- fusing to consent. (Glanv. ii. 6.) So in the petty assises, there was no choice. As regards exceptions Britton tells us (f. 218 b), en tels cas soit la assise tourn'e en juree, et en plnsours autre cas, si les patties se assentent, et si noun, soitjuge contre cely qe assentcr ne se vodera. As we saw in Glanville, one might be compelled to the ordeal against his will. In the nature of things it could not really be left to the option of an accused person whether he would be tried or not. It is not strange then to find that the judges, using the large discretion confided to them by the crown after the Lateran Council, sometimes forced a jury upon an un- willing prisoner. The two cases cited by Emlyn in his note to Hale's Pleas of the Crown, which are above referred to, are clear instances of it. Seven cases in Gloucester, however, during the same iter in which these occurred, preserved by Maitland, are, as he says (Glouc. PL xxxix.), " provokingly inconclusive." Maitland's researches among the rolls in preparing the " Se- lect Pleas of the Crown " (A. D. 1200-1225), which make the first volume of the publications of the Selden Society, lead him to make (p. 99, note) the important remark regarding Emlyn's two cases, would have been tried by the ordeal, may abjure the realm. In the case of small crimes there must be pledges to keep the peace. Maitland, Glouc. Pleas, xxxviii. 1 Brunner, Schw. 474. 2 Cases of this sort, of the period 1 220-1 222, may be found in Hale, PI. Cr. ii. 322, note; s. c. Seld. Soc. Pub. i., cases 153, 157; Maitland Glouc. Pleas, xxix.
