THE JURY AND ITS DEVELOPMENT. 26 J that "no other cases to the same effect have as yet been found." Yet Bracton's opinion seems to have been in accord with them. In very interesting passages (Lib. iii. cc. 21, 22), quoted by Mait- land, Bracton argues for this doctrine on the analogy of what happens (citing two cases of 1226), in an appeal where the appellant is a woman, an old person, or one maimed. In such cases there can be no battle, and since the Lateran Council, no ordeal; the process is the jury, — cogendas est igitur appellatus quod se defendat per patriam. On an indictment, also, after de- scribing the proceedings (143 b), in saying that these forms are to be followed in all cases of homicide, where one has put himself on an inquisition, his expressions are, sive sponte, sive per cautclam inductus, sive per necessitatem. None of Bracton's citations in this part of the work, viz. in the treatise De Corona, are later than 123 1-2, except one of 1262, which appears to be an interpolation, and this is esteemed the oldest part of the book ; but the full work is ascribed to the approximate date of 1259. 1 Down, then, to the middle of the thirteenth century, or later, it was thought possible by high authority, as well in criminal cases as in civil, to try a man by jury, or, at any rate, to convict him, whether he consented or not. But the doctrine was contrary to settled ideas, it was not an established one, the precedents were few, and it was supported rather on analogy than any body of direct authority. An obvious mode of compulsion, in case of re- fusal, was that of treating the party as confessing. There had, indeed, always been cases where one was hanged without any trial at all, as where a man was taken in the ^fact. 2 In 1222 (Br. N. B. ii., case 136), of two alleged robbers, one puts himself on a jury and is substantially acquitted. The other refuses ; but it appears that he was found in possession of part of a tunic lately stolen, and omnes de comitatu et de visneto say that he is a thief, and has been in complicity with thieves, . that he is not in frank-pledge, and has no lord to vouch for him, 1 Twiss, Bracton, i. xiv, xv; id. xlviii, citing Gliterbock. 2 Bracton, fol. 137, ^/ haec est constilutio antiqua, in quo casu non est opus alia proba- tione; cited by Maitland at Br. N. B. ii., case 1 38, — a neat case of the sort, in 1 222, where it is adjudged non potest deftndere, suspendatur. See also the Statute of Wales, s. xiv. (St. Realm, i. 68, A. D. 1284). This sort of thing is indigenous among all barbarous people; see Maine's Anc. Law, c. 10; Anglo-Saxon Laws, passim. It is the parent of a certain modern " presumption," on finding one in possession of stolen goods. Harv. L. Rev. iii. 157-8.
