^^^^^/Ay/z/yAi// KD 75ya c,f t (k^^ QJornFll ICam ^rlynnl ICibraty CORNELL UNIVERSITY LIBRARY 3 1924 071 269 73 Cornell University Library The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924071269173 THE TRIAL BY /,^ JURY. t'®" BY 4>, THOMAS STARKIE. . O Reprinted from the Fourth NnMBEB op the "Law Review AND Quarterly Journal, of British and Foreign Jurisprudence," Vol. II. p. 370. FOR USE m HARVAED LAW SCHOO: BOSTON: LITTLE, BROWN, AND COMPANY, 1880. ■^c^Cottft^' N TE. Starkib's well-known article on the Trial by Jury was published in the Law Eeview in August, 1845. It early attracted the notice of scholars, and it has been praised and relied upon by the best English and German writers on the subject of which it treats* Messrs. Little, Brown, & Co. have now kindly consented to reprint it, — for the con- Tenience, primarily, of the classes in evidence at the Law School of Harvard University. This article is but a fragment, yet, having regard to the writer's main purpose, I know of nothing upon the subject, within so small a compass, which is so well worth reading. Had time permitted, some notes would now have been added, containing further illustrations and connecting Starkie's re- searches with others of a more recent date ; but since it was impracticable to do aU that I wished, I have preferred to leave the article precisely as it was left by the author. I will venture to suggest to students of our law of evi- dence that there is a special advantage for them in growing familiar with certain leading features of the historical devel- opment of the jury. Sir Henry Maine has said that " the English law of evidence would probably never have come into existence but for one peculiarity of English judicial ad- ministration — the separation of the judge of law from the 1 E. g. Hallam in his "View of the State of Eiirope during the Middle Ages," chapter viii., note viii. ; Spence in "The Equitable Ju- risdiction of the Court of Chancery," Vol. I., p. 128 ; Forsyth in his valuable "History of Trial by Jury"; Biener in "Das Englische Geschwomengericht," Vol. I., p. 170, and Vol. III., p. 81. IV NOTE. judge ai faO^, -^ of the judge ftom the jury." ' When a man percteives the full significance of that remark in its applica^ tion ^0 a fe'w^ leading rules, he is in a way to master that very peculiar system, — unlike anything that has existed in other patts of the -world, easy to criticise, but hard to under- stand, -^ whjch English-speaking people have inlierited as their law 6f evidence. James B. Thayer. Cambridge, Oct. 20, 1880. 1 Field's Law of Evidence in India, 23, note. See also Maine's very instructive article entitled "The Theory of Evidence," originally printed, under another name, in the Fortnightly Review for January, 1873, and reprinted in "Village Communities and Miscellanies" (Henry Holt & Co., 1876), p. 295. ON THE TRIAL BY JURY. The trial by jury may be considered, 1st, as regards its origin and history ; 2dly, its present practical state and use ; 3dly, its capabilities. It cannot be doubted that, however valuable this institution may be, for legal purposes as an instrument for the investigation of truth, and for political purposes as a bulwark of civil liberty, it is not at present enjoyed without some attendant inconveniences, of such a nature as to war- rant earnest endeavor to ascertain whether the system may not be rendered more perfect, whether its defects may not be remedied without the sacrifice of any of its advantages. In purposing, on this occasion, to advert to the history of this mode of trial, we scarcely need to pre- mise that it would far exceed our present limits to undertake any specific and systematic detail of the changes which it has undergone. Our statements and observations must at present be confined, principally, to a selection of such references and authorities as prove and illustrate transitions of a marked specific character. In order to point out these the more clearly, it will be necessary, in the first place, briefly to consider in what the functions of a jury, as now constituted, consist ; and also to distinguish the prin- 4 ON THE TRIAL BY JURY. cipal forms of which a popular mode of trial is sus- ceptible. A jury, then, as now constituted, may be defined to consist of " twelve men selected from the body of the community, and sworn to decide any dis- puted matter of fact hj Judging upon evidence lawfully submitted to them." It will easily be seen, from this description of the present trial by jury, of what various forms the trial by a merely popular tribunal is capable. Such a one, in its most primitive and simple state, may consist simply of a class or body of persons, indefinite in point of number, and not sworn, and who are to de- cide, either upon their own personal knowledge or upon evidence laid before them, as in the case of a trial by a body of suitors, pares curiae, or resiants within any local district. Again, such a generality may be limited as to num- ber ; a further qualification may be added, that the persons so limited in point of number, and selected for the office, shall act under the obligation of an oath. In such case, that is, where the trial is had before a definite number selected for the purpose, and also sworn, they may be termed generally a jury, or, if selected by reason of locality, a jurata patrice. The jurj', then, or jurata patrice, may be distinguished as regards the functions which it is appointed to dis- charge, as a jury of mere conusance or recognition, for the finding of facts on the mere personal knowledge of the jurors ; as a jury of mixed functions acting partly on their own knowledge, and partly on evidence laid before them ; and lastly, as a jury, such as has already been described, judging merely on evidence of the facts laid before them. ON THE TEIAL BY JURY. 5 These four distinctions have heen made, not because "they embrace all possible forms of which a popular tribunal is capable, but because they correspond with those actually exhibited at different periods of our legal history, and also because they are necessary, in order the more easily to point out the changes which have occurred in that history, and corresponding with it in order of time. It is here to be observed that there is another very important function, in respect of which tribunals which exercise a judgment upon facts may be distinguished from each other : such a tribunal may either be limited to the deciding upon mere matter of fact, or may be further entrusted also to decide upon the law as applied to such facts. In order, however, to confine the sub- ject of present consideration within clear and distinct hmits, we have endeavored to avoid any discussion arising out of this latter distinction. The principle of decision by classes indefinite in point of number, and unsworn, pervaded the legal constitutions of our Saxon ancestors. Suits before the king, between his tenants in capita, as well as other suits of great importance, were decided by the pares of his court. Those in the County Court or Hundred Court were tried by the suitors, or sectatores, of the court ; whilst in the courts of inferior jurisdic- tion belonging to various manors and other franchises, questions were also decided before the pares or suitors of the particular court or franchise. The wisdom and policy manifested by the Anglo- Saxons in framing laws for the manifestations of right was not less admirable than the order and symmetry observable in the construction of their courts of jus- 6 ON THE TEIAL BY JUEY. tice. They aimed at, and to a great extent established, a testimonial system, founded on just and simple principles, and of great practical utility. Many mat- ters of importance of a public nature, and capable of notoriety by public attestation, were transacted openly in the face of the comitatus. Grants, agreements, and fines or concords of disputes, were commonly made and transacted in the County Courts, in the presence of the whole comitatus, attested often be- sides by many particular witnesses. Wills, also, were frequently recorded there. ^ Consequently, when questions arose concerning such transactions, the whole comitatus was appealed to in case the transac- tion had taken place coram comitatu; and the proof was by witnesses in the case of a charter or other writing, or a matter transacted before appointed wit- nesses. With respect to matters of a more private nature, and of minor importance, many wholesome ordinances were made, — that they should be trans- acted in fairs, markets, and other public places, before bailiffs and others who, in case of need, might be vouched to prove the faet. Two very interesting memorials have descended to us, illustrative of the course of decision in the ancient Saxon County Courts. Although these occurred in the reign of William the Conqueror, it cannot be doubted that they were conducted in conformity with the practice anterior to the Conquest.^ It may be proper to remind the reader that the general ap- pellation of County Courts included two descriptions of courts, one of which, the ordinary County Court, 1 Eeg. de Ely, f. 4. Dugdale's Orig. Jur. 30. * With one exception, which will presently he noticed. ON THE TRIAL BY JURY. 7 or, as it has been termed, the King's County Court, was held before the sheriff or the king's steward; there was in that court no presiding justiciary, but the suitors, or pares, were themselves the judges of law as well as fact. This court was not a court of record, and was held on plaint only, without the king's writ. The other description of County Court was held under the king's writ, directed to his justi- ciary appointed for the occasion. These distinctions remain to the present day : the proceedings in the ordinary County Court are still technically described as conducted before the suitors, and causes are yet triable by writ of justices in the County Court to any amount. The proceedings in the cases alluded to were by the king's writ directed to his justiciary. In the first of the suits alluded to, Lanfrane, Arch- bishop of Canterbury, complained against Odo, Bishop of Baieux, the king's brother, for having seized on church lands and usurped many privileges appurte- nant to the see in the county of Kent. The king commanded that the whole county should meet with- out delay, " et homines comitatus omnes, Francigenas et prsecipue Anglos in antiquis legibus et consuetu- dinibus peritos, in unum convenire." They all met at Pinenden, and sate together without distinction : " pariter consederunt, quoniam multa placita de dira- tionibus terrarum et multa de consuetudine legum inter Archiepiscopum et praedictum Bajocensem Episeopum ibi surrexerunt, et etiam inter consue- tudines regales et archiepiscopales quse prim§. die expediri non potuerunt, ek causS, totus comitatus per tres dies fuit ibi detentus." The memorial goes on to state that in those three days the archbishop s6 8 ON THE TRIAL BY JURY. disproved the title of the bishop to the lands which he and his men held, that on that day when the plea was terminated, there remained not a man in the whole kingdom of England who conld claim any part of the lands mentioned, nor anything upon them, "neque super ipsas terras etiam parvum quicquam clamaret." The memorial goes on to state, " et ab omnibus illis probis et sapientibus hominibus qui affuerunt, fuit ita ibi dirationatum et etiam a toto comitatu reeordatum et judieatum, quod sicut Rex tenet suas terras liberas et quietas in suo dominico, ita Archiepiscopus Cantu- ariensis tenet suas terras omnino liberas et quietas in suo dominico." It further appears, that Goisfridus Episcopus Constanciensis (qui in loco regis fuit et justiciam illam tenuit) acted as justiciary, with the assistance of some others, of whom Agelric, Bishop of Cicestre, is particularly described, as " vir antiquis- simus, et legum terrse sapientissimus, qui, ex pre- cepto Regis, advectus fuit ad ipsas antiquas leges et consuetudines discutiendas et edocendas in un^ Quadriga." ^ In the other case adverted to, the contest was be- tween Gundulph, Bishop of Rochester, and Pichot, the sheriff ( Vicecomes') concerning land in Kent, the question being, whether it was the land of the king or of St. Andrew.^ The king commanded that all the men of that county, that is, the sectatores, should be convened, in order to decide which had the better title.^ But they, being intimidated by the sheriff, 1 Dugdale's Or. Jur. 30, gives this account at length, as from an ancient MS. in Btb. Cotton, sub efBgie Vespasiani, A. 22, fol. 120 a. 2 That is, of the see of Rochester. * This agrees with the fonn of the issue in a writ of right. See helow. ON THE TRIAL BY JURY. 9 affirmed it to be the land of the king rather than of St. Andrew. But the Bishop of Baieux (the king's justiciary on that occasion), not trusting to their decision, commanded, that if thejf knew what they said to be true, they should select twelve of their number, who should confirm what all had said by their oath ; but they (the twelve), after they had retired to consult (^ad concilium), and had been alarmed by a message from the sheriff, on returning, swore that what they had already said was true. And so the land remained in the king's hands. But in the same year, a monk of the name of Grrim (^quasi d Domino missus'),^ came to the bishop, and having heard what they had sworn, with wonder and detesta- tion, asserted that they were all of them perjured. For the monk (Grim) himself had been the over- looker Qprepositus') of the Lord of Fracheham, and had taken services and customs for that manor, and had had one of those who had so sworn under him in the , same manor. This was communicated by the Bishop of Rochester to the Bishop of Baieux, to whom G-rim gave the same account. The bishop (the justiciary) then caused one of those who had so sworn to come before him, who, when he had come, falling at the bishop's feet, confessed his guilt. Another, who had sworn the first, made the like con- fession. The rest of the jurors were then, by the order of the bishop (the justiciary), sent to London. All 'being assembled at London, it was adjudged both by French and English that all the twelve Avere per- jured. On this condemnation the Bishop of Roches- 1 Qu. — whether the pretext of the monk or suggestion of the reg- istrar ? 10 ON THE TRIAL BY JUEY. ter had his land again. ^ It appears, also, from this document, that twelve others de melioribus comitatus "were called to account for having confirmed what the others had sworn, " qui quod illi juraveraut verum esse confirmaverant," and that when these would afi&rm that they had not agreed with those who had so sworn, the bishop said they should prove their assertion by the ordeal of iron (^judicio ferri) : this they promised to do, but being unable to perform their promise, were, by the judgment of the county Qjudicantibus aliis sui comitatus hominibus), fined in the penalty of £300 to the king. Although the course pursued in the case of the Bishop of Rochester was probably more analogous to the Norman ^ than to the Saxon course of judicial proceeding, it was a precedent which must have had much weight, and which had a direct tendency to supersede the more ancient and indefinite tribunal, and to introduce the course of decision bj^ a limited number of suitors upon oath ; in short, to establish, if not to introduce, the trial by jury, for that by suit- ors, or pares curise. If the experiment were first made upon the trial last stated, it was, in its result at least, a happy one ; for, although the whole jury were convicted of perjury, justice was at last done to the bishop and St. Andrew. It might well appear to be better policy to rely on the oaths of twelve men 1 Eegist. Eoffense, ty Thorpe, p. 31. , 2 The Monumeiita Danica, lib. 1, p. 72, makes mention of a prac- tice of a similar description. Suits were determined at general meet- ings of the parcecias or curiie, into which the country was divided. The decision was in the first instance by the Conventus universus, as it was here by the totus Comitatzis ; but if the losing party chose, he might appeal from the decision to a select body of twelve Jvdioes or Arbitri. ON THE TRIAL BY JURY. 11 sworn to declare the truth, and liable to severe pen- alties for a false and corrupt verdict, than to depend on the voices of an unsworn, irresponsible, and nu- merous body : this seems to be the moral to be drawn from this ancient and curious record. The jurisdiction of the ancient Saxon courts of the county or hundred, in which the laws were adminis- tered by the pares or sectatores of the county or hun- dred, received a mortal blow from the ordinances of the Conqueror, and the attempt afterwards made to restore them wholly failed. " For " (says Lord Hale, with some degree of acerbity), " although the alder- man or chief constable of every hundred was always to be a man learned in the laws ; and although not only the freeholders, but the bishops, barons, and great men were by the laws of Henry I. appointed to attend the county court, yet they seldom attended them ; or, if they did, in process of tinie they neglected the English laws, as great men usually do." The former part, at least, of the venerable judge's obser- vations is amply confirmed by historical evidence. We learn from Glanville's admirable though brief statement of the law in the reign of Henry II., that trials by the assise and jurata patrioe had been estab- lished at the time when he wrote. The trial by the grand assise was first appointed in that reign, but he speaks of the ordinary assise and the jurata patrice as existing institutions, which therefore may have been, and probably were, in earlier use. His work is a most valuable one for our purpose, as being of un- doubted authenticity, clearly and accurately expressed, with strict adherence to forensic language, and for its frequent statement of the principles of the laws which 12 ON THE TRIAL BY JURY. it contains, and particularly as regards those which related to the grand assise, and the functions of re- cognitors and jurors. We propose to refer to some of his details, with a view to show that, at the time when he wrote — that is, probably, about the year 1187 — jurors of assise, as well as of the ordinary jurata, were mere recognitors, who decided simply upon their own knowledge of the fact, and not upon evidence laid before them, and also to exhibit the means resorted to for rendering this mode of trial effectual. We will refer, in the first place, to the account which he gives of the proceeding on a writ of right, and of the alteration introduced by estab- lishing the trial by the grand assise. Upon complaint made to the king by the demandant of his having been deforced from his fee, and the assent of the king that the case should be decided in his court, a writ of summons was issued, commanding the tenant to restore the tenement to the demandant, or to show cause why he did not. Upon this sum- mons, numerous excuses and essoins were allowable before the tenant was compellable to appear in court : a view of the land was then to be had ; and, after all this, three more essoins were allowed before the tenant was obliged to appear and answer. The demand was thus made : — " I demand ^ against this H. half a knight's fee, or two plough lands, in such a vill, as my right and in- heritance, of which my father or my grandfather was seised in his demesne as of fee, in the time of King Henry I. (or after the first coronation of our lord the king), and from whence he took the profits to the 1 "We have used Mr. Beames's translation. ON THE TEIAL BY JUET. 13 value of five shillings at least, as in corn, hay, and other produce ; and this I am ready to prove by my freeman J. ; and if any accident happen to him, by such a one, or by a third (and the demandant may thus name as many as he chooses, but one of them only shall wage the duel) who saw or heard it ; — (or the demandant may use other words, thus :) and this I am ready to prove by my freeman J., to whom his father, when on his death-bed, enjoined, bj' the faith which a son owes to his father, that if he ever heard a claim concerning that land, he should prove this as that which his father saw and Jheard." ^ It thus ap- pears that the demandant was bound to offer proof, either by an actual witness of the fact, or by one who had obtained a knowledge of it in the solemn manner stated, accompanied by an injunction the most em- phatic and impressive that can be conceived.^ After the demandant had thus set forth his claim, it was at the election of the tenant either to defend himself by the duel, or to put himself on the king's grand assise, and require a recognition which of the two had the greater right to the land in dispute. The account of this singular institution is thus stated by Glan- ville: — " The Grand Assise is a certain royal benefit {regale heneficium) bestowed upon the people, and emanating from the clemency of the prince, with the advice of his nobles. So effectually does this proceeding pre- 1 The singular practice thus detailed by Glanville as the vetv^ cm- suetudo regni is one of several circumstances tending to the conclusion that the trial by duel was resorted to by the Anglo-Saxons. 2 This singular expedient for continuing testimony was consonant to the Saxon habit of providing evidence, to which we have already referred. 14 ON THE TRIAL BY JURY. serve the lives and civil condition of men, that every one may now possess his right in safety, at the same time that he avoids the doubtful event of the duel. Nor is this all ; the severe punjshment of an unex- pected and premature death is evaded, or at least the opprobrium of a lasting infamy of that dreadful and ignominious word ^ that so disgracefully resounds from the mouth of the conquered champion. " This legal institution flows from the most profound equity. For that justice which, after many and long delays, is scarcely if ever elicited by the duel, is more advantageously and expeditiously attained through the benefit of this institution. This assise, indeed, allows not so many essoins as the duel, as will be seen in the sequel ; and by this course of proceeding both the labor of men and the expenses of the poor are saved. Besides, by so much as the testimony of many credible witnesses in judicial proceedings pre- ponderates over that of one only, by so much greater equity is this institution regulated than that of the duel. For, since the duel proceeds upon the testi- mony of one juror, this constitution requires the oaths of twelve lawful men at least." ^ Glanville afterwards proceeds to state the mode of taking the recognition on the Grand Assise, as follows : ^ — 1 Craven, ■;— a word of German origin. See note 2. 2 Glanville, lib. 2. c. 7. ' The provision made for substituting, for a rude and barbarous practice, a rational mode of proof, was humane and wise, but was founded, as it seems, on considerations of a nature and policy different from those assigned. Looking to the numerous difficulties and delays thrown in the way of a demandant in a real action, it can scarcely be doubted that they were interposed on a principle of policy in favor of the present possessor. ON THE TRIAL BY JURY. 15 " When the assise proceeds to make the recogni- tion, the right will be well known either to all the jurors, or some may know it and some not, or all may be alike ignorant concerning it. If none of them are acquainted with the truth of the matter, and this be testified upon their oaths in court, recourse must be had to others until such can be found who do know the truth of it. Should it, however, happen that some of them know the truth of the matter, and some not, the latter are to be rejected, and others summoned to court, until twelve at least can be found who are unanimous. But if some of the jurors should decide for one party, and some of them for the other, then others must be added until twelve at least can be obtained who agree in favor of one side. Each of the knights summoned for this purpose ought to swear that he will neither utter that which is false nor knowingly conceal the truth. With respect to the knowledge requisite on the part of those sworn, they should be acquainted with the merits of the cause, either from what they have personally seen and heard, or from the declarations of their fathers, and from other sources equally entitled to credit, as if falling within their own immediate knowledge." The proceedings in the newly established Grand Assise, thus so perspicuously stated by Glanville, present for our present purpose two important mat- ters for observation. It is clear, in the first place, that the jurors of assise were bound to deliver their ver- dict upon their own knowledge of the fact in question, that being of course included, which a son possessed by solemn tradition from his father. This shows clearly what the duty of recognitors in this respect 16 ON THE TRIAL BY JURY. was, and affixes to tlie technical and formal word recognoscere a plain and certain meaning. Another matter of interest, and of importance to our present purpose, is the practice of afforcing a jury, as it has since been termed, and which is also described with great clearness. From this it appears that an unanimous Yerdict of twelve recognitors was essential, and that such a verdict was to be obtained, in cases of doubt or disagreement, by a process of re- jecting such jurors as were ignorant of the fact, and importing others who did know the fact, until twelve on the one side or other assented to the same verdict. Some machinery of this kind was obviously necessary, in order to give proper force and effect to a jury of mere recognitors, as it might very frequently hap- pen that the twelve first sworn might have no such knowledge of the fact as would enable them to decide. The assise would, therefore, without such an aid, be far less efficient for the purpose of true decision than a large and indefinite body would usually be. We have already seen a desire manifested to correct the inconvenience of decisions by a large indefinite body of suitors, or pares, by referring to a selected few ; so here it was not only desirable, but frequently neces- sary, that the powers of a few originally selected should, when it became necessary, be extended or afforced by the aid of others, and thus to unite the benefit of a trial by the pares or suitors at large with the advantages of a trial by a jury. Whilst Glanville is particular in treating of the Grand Assise, describing it as "regale beneficium dementi^ principis populis indulfum," and which was, in the king's writs, termed assisa mea, he seems ON THE TRIAL BY JURY. 17 to distinguish it from the ordinary assise, and to speak of the latter as an already established institu- tion. It is indeed probable that when, soon after the Conquest, the County Courts, and consequently the trial by a body 6f suitors or pares, had fallen into disuse, and when, consequently, trials in the king's courts became frequent, the ordinary mode of trial was by assises and juries. The trial by the assise was not heard of before the Conquest, and the term itself affords internal evidence of Norman origin.^ It seems to be also probable, that the rules which are specified by Glanville concerning the proceedings on the Grand Assise were partly at least in use as re- garded the ordinary assise. In introducing the former, it would be natural, so far as was consistent with the main object to be attained, viz., the relieving the tenant from the necessity of defending himself by the duel, to adopt such means as were already in use. The duty of the ordinary assise was recognoscere, as in the case of the Grand Assise, and the jury in each case having the same duty to perform, it may fairly be presumed that the same means would be afforded for rendering that duty effectual. And we find it to be well established that this practice was applied to juries of assise, although, as we shall pres- ently see, not with that certainty and uniformity which, according to Glanville, governed the proceed- ings of the Grand Assise. Neither was the rule even as regards the Grand Assise itself, which required 1 The word assise, from asseoir, was by an easy metaphor applicable to a jury who sat for judicial business. It was applied, also, as is well known, to numerous other institutions, in the sense of a thing ap- pointed or settled. 18 ON THE TEIAL BY JUEY. the unanimous verdict of twelve jurors, strictly ad- hered to. Although, as we have already observed, Glanville does not expressly state that the practice of afforcement was applicable, to the ordinary assise, yet that, to a limited extent at least, it was so appli- cable, sufficiently appears. According to Bracton,i in case the jurors of assise could not agree (in unam declinare non possunt sen- tentiam), the assise was to be afPorced according to the number of the greater part of the dissentients, or at least four or six were to be added to the others ; or they were to discuss or judge (judioare) concern- ing the truth by themselves, and without the others, and then their verdict was to be allowed, and to pertain to the party with whom they concurred (tenehit cum quihus ipsi convenienf). And thus, ac- cording to Braeton, an afforcement was of course, and not at the option of the parties. According to Britton,^ if the jurors of assise could not agree, others were to be added to the stronger part of the jury, if the parties were willing, but if not, their judgment was to be given against the party who was unwilling ; so that in case the plaintiff were un- willing, the assise remained as before, and he (the plaintiff) in mercy ; and in case the disseisor was unwilling judgment was given as though there was no defence. And if the jurors had no knowledge to en- able them to declare the truth, and knew not the facts, the assise was to remain to the tenant, and the plain- tiff was to be in mercy, because he had not proved 1 The assise might be taken by a less number than twelve, provided seven at the least appeared. Brae. lib. 4, t. 19. '^ Chalenge de Jurours. ON THE TRIAL BY JURY. 19 his claim. And if they would not pronounce their verdict, through favor to one of the parties or other cause (encheson), then were they to be shut up with- out eating or drinking until they should have pro- nounced their verdict.^ It thus appears that, at the time when Britton wrote, the practice of afforcing the jury in an assise was recognized as a mode of proceeding beneficial to the administration of justice, although the means of compelling the parties to submit to it were but indi- rect. It appears, also, that in case they corruptly, and to favor one of the parties, refused to give their verdict, they might be constrained by imprisonment and ,want of food to pronounce it. According to Fleta,^ the justices might at iJieir election either af- force the assise by adding to them from those sum- moned a number equal to that of the major part of the dissentients, or compel the same jurors to give their verdict.^ The great difficulty which must* have been expe- rienced in procuring a verdict by twelve, even by means of the practice of afforcement, probably occa- sioned its disuse. The practice, whilst it prevailed, must have frequently been unavailing to procure the aid of those who had the most direct knowledge of the fact, for these might be women or children, who 1 Britton. lb. 2 Lib. 4, c. 9. See Bamngton on the stat. 21. ' Afforciare, juxta numerum majoris partis dissentientis, vel eoadem juratoreg compellere ad concordiam. — Fleta, lib. 4, c. 9. * This appears from the laws passe*froin time to time, requiring a certain number of hundredors at the least to be impanelled. In the reign of Edward III. six are said to have been requisite, but in that of Elizabeth the number was reduced to two. 20 ON THE TRIAL BY JURY. could not act as jurors. After the practice of afforce- ment had been disused, it became necessary either to abide by the verdict of some prescribed majority of the original jurors, or to require an unanimous ver- dict. It is probable that much doubt and uncertainty for some time existed on this subject ; indeed, several judicial authorities show that the verdict of the ma- jority was frequently allowed to prevail ; ^ but in the reign of Edward III. the rule requiring unanimity seems to have been established. The jurata patrice, consisting ordinarily of twelve jurors ^ taken from the vicinage of the place where the disputed fact occurred, was at the time when Glanville wrote an established recognized institution ; the jurors, however, were simply recognitors, deciding on their own knowledge, and not, it will be seen, as judges of fact, on evidence laid before them. To the antiquity of the jurata thus constituted, it is difficult to set any definite limit. It was a mode of proof constantly referred to in all cases of doubt on facts occurring in the king's courts, where no par- ticular mode of trial was prescribed by the law ; and it seems, in general, that whenever there would have otherwise been a deficiency in evidence, for want of 1 The records of these cases are very curionsj hut our limits will not allow us to do more than refer to some of the principal cases ; amongst these are a writ of right hetween the Abbot of Kirslead and Edmund de Eyuecourt, before the Justices in Eyre, in Com. Lin. 56 H. 3 ; another of an assise of novel disseisin between William Tristram and John Simenel, K. B., 14 E. 1 ; in both these cases the verdict was by eleven, against the verdict of one ; in each case the verdict was recorded according to the fact and judgments givSn ex dido fnajoris partis. Also, in the 20th Ed. 3, Thorpe, C. J., took a verdict from eleven of the jurors, for which, however, he was, as we learn, reproved. 41 Ass. pi. 11. ^ But in many instances of a greater or less number. — See Bracton. ON THE TRIAL BY JURY. 21 proper testes or provers, especially -when -witnesses were dead or abroad, " ad patriam erat de necessitate recurrendum." ^ In the case of a writ of right or assise, all doubts concerning collateral facts were to be decided by a jury of the vicinage, although not always by a jury of twelve. If, in the case of a writ of right, he who had waged the trial happened to die, it was to be decided by the vicinage whether he died a natural death, in all cases where any doubt existed as to the fact.2 If on the defendant's objecting to put himself on the grand assise because both were descended from the same stock from which -the inheritance itself descended, the tenant denied the fact, and the testimony of the kindred was doubted or denied, recourse was to be had to the vicinage, and on their finding in the aiSrmative the assise ceased. The assise was also often turned into a jury, either from the nature of the fact itself upon which the suit was found to depend, as where it appeared that the injury amounted to no more than a mere trespass, or it was agreed between the parties themselves that the matter in dispute should be so dealt with.^ And so it was whenever the trial ^er testes failed from death or absence. And it may be at once stated, for the sake of brevity, that this favorite mode of trial was resorted to whenever it was necessary, for the default of any other more appropriate mode, and in many instances upon election by the parties.* 1 Brae. 398. '■! GlanvUle, b. 1, c. 3. ' See BrittoD, c. 51, de assises tournfea en jures. * Glanville, b. 5, u. 4 ; b. 6, c. 11 ; b. 9, c. 1. Britt. o. 53. Brao. 142. Fleta, by Selden, 231. 22 ON THE TRIAL BY JURY. It seems, therefore, to be probable, that recourse was had to this mode of trial in the Icing's courts, when soon after the Conquest they in a great meas- ure superseded the ancient Saxon courts.^ It may perhaps be difficult to limit the inquisitio per juratam patrice to a time subsequent to the Conquest, as it is well known, that by a law of King Ethelred, still extant, twelve men in every hundred were with their prepositus sworn to present all malefactors.'' The jury thus instituted has been regarded by some as the origin of our present system of jury trial. It is, however, to be observed, that this was but a jurata delatoria, or jury of accusation, on which the party accused might be subjected to the ordeal or other mode of compurgation, but was not a jury for the trial of disputed facts. It is, indeed, highly probable that this was the prototype of the succeeding and present grand juries, and was the first to make those presentments which have afterwards been frequently made by grand juries and hundredors.^ It appears, 1 Inquisitions, however, were not always made by means of juries : during the Saxon era they were frequently made by the men of different hundreds, according to the exigency of the case ; in the reign of Canute, an inquiry was maile before nine hundreds ; and in the reign of Wil- liam II. a writ was issued to the sheriff to conyene two hundreds and a half. William the Conqueror caused an inquisition to be made per totam Angliam. Bracton speaks of a writ of inquiry to be executed in plena comitatu. — Brao. 303, b. [304, a.]. And on Coroner's, and other Inqui- sitions, the villatae joined : see i Ed. I. st. 2, and Brae. lib. 3, u. 22. 2 Et habeantur placita in singulis Wapentachiis ; et exeant seniores xii tayni et prepositus cum eis, et jurent super sanctuarium quod eis dabitur in manus quod neminem innocentem velint accusare vel noxium concelare — et omnis infamatus homo vadat ad triplex ordalium, vel reddat quadruplum. — Ancient Laws, &o., 126, 528. ' In the St. of Northampton {a. d. 1176), mention is made of a person, "rectatus de murdro per sacramentum xii militum de huu- dredo;" and see Bract., lib. 3, c. 1. Constitutions of Clarendon, c. 6. ON THE TRIAL BY JURY. 23 however, from the authorities, that such presentments were never regarded as of great weight, but have been considered tantamount to the " common fame," or vox populi.^ That tlie jurata patrice, down to the time of Glan- ville, and afterwards, were mere recognitors, deciding on their own knowledge, and not as judges of the fact, is certain. It may on this point be sufficient to refer to a passage in Bracton, who wrote in the reign of Henry III. Speaking of the difficulty which might occur in case an appellee put himself on the country in the case of a crime committed secretly, he inquires, " sed cum patria veritatem scire non pos- sit de tam occulto facto, qualiter liberabitur ille qui super patriam se posuerit ? " and he answers, " re- vera satis liberat, quia express^ non condemnat, sicut dici potuit de charta cum satis acquietat ex quo specialiter non onerat." He adds, " Item poterit factum esse tam occultum quod secta si^ nulla vel minus ritd facta tamen calum- niari non poterit, quia initium facti sdri non po- terit, sicut de veneno dato, et quo casu non habebit appellatus electionem utrum se ponere velit super patriam et defendere se per corpus suum, sed oportet quod defendat se per corpus suum, quia patria nihil scire poterit de facto nisi per prsesumptionem et per auditum, vel per mandatum, quod quidem non sufficit ad probationem pro appellante nee pro appellate ad liberationem." ^ 1 According to Fleta, 52 (lib. 1, c. 34), indictments are little deserv- ing of credit, " eo quod vox popuU frequenter vana invenitur tam prop- ter cupiditatem escliaetEe, quam propter odium et malam voluntatem." - Bracton de Corona, 137. The same objection might be made to exclude a juror from being sworn which would be sufficient to exclude a witness from testifying. — Brae. lib. 4,,c. 19. 24 ON THE TRIAL BY JURY. Although jurors so decided on a fact upon their own knowledge, it is not to be supposed that they were always required to possess actual knowledge as eye and ear witnesses of the- fact ; ^ upon a question of relationship it was not necessary to prove the fact by parents or relations, the verdict of the vicinage was sufficient. And where greater certainty was un- attainable, a jury might give a verdict ex creduKtate or ex consdentia? So a jury might even find the con- tents of a deed, although none were laid before them. So jurors were frequently permitted to state that they had not seen the very fact, but that they had seen other facts which they stated, or that they had heard from others the particular facts which they had stated.^ It is probable that as the practice of afforcing juries declined, the strictness of the rule as to their knowl- edge was relaxed. It appears to have been the cus- tom, especially where suspicion had been excited, for the court to examine the jury as to the grounds of their verdict ; a useful course, it was said, because it might turn out that they derived their information from one of their own party, and that he knew it 1 In the case of a writ of right, it was sufficient, as we have seen, that the very witness adduced by the demandant in support of his claim, and who was to enforce it by battle, had derived his knowledge from his father. 2 rieta, lib. 4, c. 9. " Brae. 39S. If the witnesses to a deed were dead or abroad, "ad patriara erat de necessitate recurrendum." lb. The st. 12 Ed. 2, ex- pressly provides that a jury may proceed to inquire of a deed without the witnesses. A verdict was not trusted, "si omues instruantur per unum qui non fucrit ex juratoribus. " Fleta, lib. 1, u. 34. This seems to admit the implication that the verdict would be good, although it appeared that all the information had been received from one person, provided he were a juror. ON THE TRIAL BY JURY. 25 only from having heard it from some worthless fellow (ribaud), or at a tavern.^ And it appears that upon criminal charges, affecting life or limb, the verdict was to be on personal knowledge of the fact.^ It may be doubted whether the doctrine of af- forcement was applied to juries, especially ^n criminal trials. The account given by Bracton as to the trial by the country, on a criminal charge, is very obscure. It was to be by twelve jurors,^ consisting of milites or liheri et legales homines of the hundred,* and four villatce.^ It also appears that the villatce were part of the inquest ; they were sworn dicere veritatem, and were challengeable.^ Their number, however, is left indefinite ; and it is not stated what number of the twelve juratores merely, or of the Juratores et quatuor villatce, was competent to convict.^ The statements 1 Britton, c. 4. Bracton, lib. 4, o. 19. 2 2 Reeve, 629. Britton, ti. 4. ' Lib. 3, c. 22. Prsesentibus, igitur xii juratoribus et quatuor vil- latis, imprimis jurabit quilibet de villatl per se vel omnes simul, erectis aursum manibus, in hseo verba ; quod veritatem dicemus de iis quffi a nobis requiretis ex parte Domini Regis, &c. * Brae. lib. 3, u. 1. 5 According to Spelman (voce Villata), the vUIata meant the collec- tive body of the township; "dicuntur villae inhabitantes, villae quasi communitas." Whether the verdict was to be so given by inhabitants of different vills as under the St. 4, Ed. 1, st. 2, (of coroners) or as is more probable (some emendation of the text being requisite) by four in- habitants of the same vill added to the twelve other jurors, perfect unanimity does not appear to have been essential. * According to the authority 24 Ass. 11, a mere witness, not being of the inquest, was not challengeable. ' It is possible that the villatae may have been joined merely for the purpose of testimony, in which case their number could not well be defined ; it might depend upon cii'cumstances. They were sworn, not 26 ON THE TRIAL BY JURY. of Britton and Fleta on this head are also exceedingly loose and unsatisfactory. Britton says, " Et s'ilz ne se poient accorder a une voluntera, si soient severSs, et examines pur quoy ilz he "poient a uner, et si la greyvure partie se tiendra, et si ils dient sur leur ser- mentz, que ils ne sevent rien del fait, soient puys autres que le sevent." This passage is evidently incorrect ; and, in Wingate's edition, instead of the words " et si la greyvure partie se tiendra," are sub- stituted (in the corrections), " et si la greindre partie de eux sache la veritd, et partie nient, soit jugfe par la ou la greindre partie se tiendra." Even this cor- rection leaves it doubtful whether a majority of the twelve was essential to the decision, or whether even a smaller number might not be sufficient, in case they were a majority as compared with those who, assert- ing a knowledge of the fact, differed from them, the rest professing ignorance ; as, for example, if four were for a conviction, three for acquittal, and the rest professed total ignorance. The law on the sub- ject, as laid down by Fleta, does not remove the difficulty. If (he says)^ the jurors do not agree, they are to be examined separately ; and those suspected of malicious motives, or of having been unlawfully prompted to condemn — " Suspecti qui nequiter prop- recognoscere, but dicere veritatem, and it seems, from the slight allusion to them by Fleta, lib. 1, c. 34, as if the jury might derive their knowl- edge from the villatas, provided the latter did not derive it from an im- pure source, but that the jury could not derive their knowledge from any but one of the villatae. If the villatas had voices in the verdict, and were not limited in number, the mode of trial, thus constituted, was intermediate between one by an indefinite body and a jury, and in- dicates a state of transition to the trial by a mere jury. 1 Lib. 1, c. 34. ON THE TEIAL BY JURY. 27 ter cupiditatem eschaetse terrse defensoris vel hujus- modi inculpatum damnare intendunt, penifcus amove- antur, &c., et novi eligantur juratores qui primis conjungantur juratoribus nisi prirai fuerunt omnes suspecti, et sic fiat donee veredictum unanimiter pro- feratur, et non per dietam vel prisonse exactionem nisi in casii ubi inculpatus in alios se ponere nolu- erit." The process thus set forth by Fleta was applicable only where, in case the jurors could not agree, in- quiry was made as to the cause of difference, and particular jurors were rejected by reason of suspicion of ill-will or prejudices unduly created. No provi- sion, therefore, is here made for any case of difference amongst the jurors, where the jurors themselves, professing to know the facts, were above the reach of suspicion. Upon the whole, it seems to be highly probable, that unanimity in the verdict was not necessary, and that either the verdict of a majority of the jury originally appointed was allowed to prevail, or that the jury was afforced ; in which case, although a verdict by twelve was obtained, it might be that eleven others dissented. Formerly a jurata patrice, as distinguished from the assise, was not liable to an attaint for a false ver- dict, as the assise was, because, as was said, they were appointed as it were arbiters by the assent of the parties ; this may have been, because they were not expected to possess so precise a knowledge of the collateral fact which they had to decide, as the assise were presumed to have of the principal point in controversy ; but, by the 38th chapter of the 28 ON THE TRIAL BY JURY. Statute of Westminster, a jury were subject to at* taint for a false verdict on a plea of land. It was also provided by the same statute, c. 30, that justices appointed to take the assises shall not compel jurors to say precisely whether it is a disseisin or not, pro- vided they will declare the truth of the fact ; but that if they will, sponte sud, say that it is a disseisin or not, their verdict shall be taken at their peril. It is well known that in the present County Court — a tribunal undoubtedly of Saxon origin, in which the whole body of suitors once actually decided, as they still do in theory — the verdict is in truth given by twelve jurors upon oath, as well in the case where the ordinary court is held before the sheriff without writ, as where it is specially held by virtue of the Queen's writ of justicies. It does not appear at what precise time this change took place. In both of the celebrated trials in this court in the reign of William the Conqueror, to which allusion has already been made, the proceeding was coram pleno comitatu. But we also learn, from the latter of those trials, that the decision of the eomitatus was required to be confirmed by the oaths of twelve of the suitors. Looking to this precedent, which thus occurred in the County Court, and the example afforded by the institution of the ordinary assise, which probably occurred very ^oon after the Conquest, it is probable that the trans- fer of the duty from the whole body of the eomitatus to a jury took place at no distant period after the Conquest, and previous to the time of legal memory. Similar changes also took place in some, at least, of the inferior manorial courts : the consideration that in these the practice of presentment by a jury prob- ON THE TRIAL BY JURY. 29 ably rests on ancient custom, affords confirmation that it existed before tlie time of legal memory. We learn also from Bracton, that, when an inquiry was made before the sheriff in the county, it took place before a jury summoned from the vicinage to recog- nize, &c., as in ordinary cases. The duties of compurgators have by some been assimilated with those of the jury; they were, in truth, very different. The office of jurors was, from the earliest account we have of their history, reaognoscere — to declare the truth on some inquest directed to be made, with- out reference to party ; whilst the duty of a compur- gator was merely ex parte, in order to exonerate another from some claim or charge to which he was apparently liable, and this was done usually, if not universally, by merely swearing to belief concerning the fact.^ It has been stated, and with great appear- ance of probability, that the wager of law as a mode of trial was established on the principle that an in- nocent man might be overcome by a multitude of false witnesses. And therefore, so long as he was legalis homo,^ a man of unimpeached character,^ he might defend himself against mere witnesses per 1 The custom was in use amongst the Normans. By a law of Will. 1, upon an Englishman's declining the battle, the Norman might purge himself by swearing according to the law of Normandy. By the Anglo- Saxon law hosts of witnesses to belief were sometimes sworn for the purpose of crimination. * Those who had been convicted of a false verdict lost, inter alia, their "liberum legem," and for ever after were deemed to be infamous. Glanville, c. 19. So according to Bracton, "he ne es othesworthe, that es enes gylty of oth broken." Lib. 3, c. 19. ' i. e., legally unimpeached. 30 ON THE TRIAL BY JURY. legem ; that is, if he would absolutely swear, in his own person, that he was not chargeable, and produce a sufficient number of persons of his neighborhood who would swear that they believed what he said to be true.' Our inquiries hitherto have been confined to two of the classes of popular tribunals originally proposed for consideration, viz., that consisting of an indefinite number of a general class of suitors, pares, or resi- ants ; and 2dly, that of a jury of mere recognitors, bound to decide on their own knowledge of the fact, and not as judges on evidence laid. before them. We are now to turn our attention to that more interest- ing era in the history of the Jury, when they first began to act in a much higher and more important capacity than they had done before. Before we proceed to detail some of the circum- stances attendant on this important change, it may be proper to premise a few remarks. It is material to observe, that even amongst jurors of mere conu- sance, a latent tendency must have existed to judge mutuall}'' of each other's knowledge. It could rarely, if ever, happen, that all the jurors possessing knowl- edge of the fact were actual witnesses of the fact, especially as regards criminal inquiries ; possessing, however, knowledge of different facts and circum- stances of the transaction, they might, by conference, and comparison of the facts which had come to their knowledge, attain to a just conclusion. Whilst the power of judging would, to this extent, be naturally 1 See Worthington's Inquiry as to the power of juries to decide in- cidentally questions of law (p. 51), — a work which well elucidates the subject which its title announces. ON THE TRIAL BY JURY. 31 developed without aid from any express rule of law, the legal recognition of its exercise would be ren- dered necessary when complicated pleas- or issues were submitted to a jury. When an issue involved distinct branches of inquiry, a general verdict could seldom be given upon it by one jury, unless they mu- tually judged of each other's testimony. It would frequently happen that, although one or more jurors had knowledge of one fact, they had none of some other fact equally essential to the verdict, and that those who knew the latter fact were ignorant as to the former, and, therefore, in venturing to give a general verdict upon oath, and subject to the peril consequent on giving a false verdict, every juror must, as to any fact not within his own knowledge, have virtually sworn to his belief of it upon the state- ment of his cojurors. To take a simple case : Let it be supposed that a deed was questioned, as well as regarded the facts of sealing and delivering as the sanity of the alleged obligor. Upon an issue on the validitj'' of the deed, some of the jurors might know the mere facts of sealing and delivering, but nothing of the state of the obligor's mind ; these could do no more than state their knowledge of those facts, whilst others might be able to speak to their knowledge of the party's sanity ; a general verdict then would be founded on every juror's knowledge as to part, on his judgment as to the statement of others as to the rest. And it is evident that the law, in awarding a trial of the compound issue by a jury who were thus to de- cide on the whole question, would recognize such a mode of deciding. That mode would be still more distinctly sanctioned if the witnesses to the deed 32 ON THE TRIAL BY JUEY. were impanelled as part of the jury. That is, if, instead of having a trial per testes as to the mere execution of the deed, and one by the country as to the sanity of the party, there, were to be one trial as to both. This would obviously be advantageous; the other jurors would have all the benefit of the knowledge which the witnesses to the deed had of the facts attending the execution of the deed, and would, at the same time, exercise a salutary discre- tion in judging of their testimony. On the other hand, the practice might be attended with tliis incon- venience : some witnesses might differ from the rest as to the proper inference from the facts which they knew, in which case the verdict would not be unani- mous, and the question would arise, which ought to prevail. This difficulty again would be obviated, partially at least, by distinguishing between mere witnesses of fact and judges of testimony. Without further indulging in mere conjecture, we proceed to state the changes which really occurred. "We find, in the first place, that in the reign of Henry III. the trial per patriam et testes had become common in practice, where the issue involved the ex- istence of a deed. Thus, where land having been claimed on gift by virtue of a charter of feoffment, it was excepted against the charter that it was made when the supposed donor was of non-sane mind, or under duress, the supposed donor having reclaimed the land as soon as he could, the writ in such case directed the sheriff to summon A. and B., the wit- nesses named, &c., and besides eight others as well knights, &c., to recognize upon oath whether the said C, being of sound mind, &o., gave to B. such land, ON THE TRIAL BY JURY. 33 with the appurtenants, and executed his deed thereof, &c. ; for that E., the son and heir of C, had claimed the said land, and says that >the said C, his father, never gave the said land to the said B., and that, if he ever did so, it was during sickness, of which he died, and after he had lost his memory, &c., because as well the said E. as the said D. have put themselves on the country.^ So, where the testes happened to reside in two or more different counties, they were summoned by writs directed to the sheriffs of those different counties, as also were jurors from each. And if in such a case (says Bracton), i. e. of a dis- puted deed of gift, when the testes and recognitors shall have appeared in court, they say on their oath that they were present when the gift was made, and that in their presence the deed of gift was read and heard, and homage taken, and seisin lawfully deliv- ered to the donee in their presence, and in due form, the deed will be valid and the gift lawful. We now proceed to notice an authority of great importance to our present purpose. We find, that in the twenty-third year of Edward III., the witnesses were adjoined (aiointes)^ to the jury, for the purpose of aiding them by their testimony, but having no voice in the verdict; and that, on the contrary, the verdict of the jury was to prevail, even though di- 1 This mode of trial seems to have heen optional with the parties. Quandoque fit inquisitio tantum per testes et quandoque per alios quam testes, si partes hoc voluerint. Brae. 396. " It will be seen that the writ, as above cited from Bracton, directs the summoning of the witnesses and eigM milites ; it is probable that so many of the latter were summoned as with the witnesses amounted to twelve. In the case above cited it will appear that the witnesses were adjoined to a fuU inquest of twelve. 3 34 ON THE TEIAL BY JURY. rectly opposed to the evidence of witnesses. An assise ^ was brought against several, all of whom but one pleaded to the assise, and he took on himself (emprist) the tenancy, and pleaded in bar a release by the plaintiff, in which several witnesses were named ; the deed was denied, wherefore process was issued to cause the witnesses to come as well as the assise. And one of the witnesses was named in the panel amongst those of the assise, and he was ousted ; for it was said by Thorpe, C. J., that though twenty witnesses were named in the deed, the Court would take an assise beside the witnesses, and that they should only be adjoined to the assise and testify the truth.^ And one of the witnesses was challenged because he was cousin to the plaintiff, et nan allo- catur ; for witnesses are not challengeable, because the verdict shall not be received from them, but from the assise; and the witnesses' shall be sworn simply to speak the truth, without saying according to their knowledge, for they ought to testify nothing but that which they shall see and hear. And the assise was taken, and the witnesses were adjoined to them, and they found that the deed before. mentioned was false. And it was adjudged that the plaintiff should recover his seisin and damages, and that he who had pleaded the release should be taken for the false deed which he had produced, &c. And Kelby prayed that the deed should be condemned (damnS) ; but, by Thorpe, this shall not be, for the tenant may have an attaint, inasmuch as the verdict has passed negativing hia 1 Lib. Ass. 23 E. 3, pi. 11. ' Et eui ne serr foraqr aiontes a I'aasize et testm la verity. ON THE TRIAL BY JURY. 35 plea,i although the witnesses were parties to this verdict, for the witnesses ought to testify nothing, except that of which they are certain, scil., that which they shall see and hear. He adds afterwards, " But the deed shall be enrolled word for word, so that the tenant shall never have advantage of it ex- cept by way of an attaint." And also, it was said, that in a case where witnesses are adjoined to an in- quest, and the witnesses and inquest cannot agree in their verdict, the verdict of the inquest shall be taken. The first point in the above curious and interesting report that claims observation is, that although the witnesses and assise seem to have been included in the same process, no witness could be inc^uded in the assise. On this question Thorpe, C. J., seems to have spoken somewhat emphatically, declaring that, though there were a score of witnesses, none of them should be included in the assise. This seems to have been a departure from the practice of trial per pa- triam et testes in the reign of Henry III., when the testes seem to have been included with the patria in the same inquest.^ Then, it was said, that the wit- nesses were to be only adjoined (aiointes) to the assise, and testify the truth. This also indicates a most important departure from the former practice. The jury were thus afforced in point of knowledge and information, but not in number, and thus the jury judged, of necessity, upon the evidence submitted by the witnesses. Next it was held that a witness of kin to one of the parties could not be challenged on that ground, because, as was said, the verdict could 1 Quant le verdict est passe sur parol neg. 2 See note 2, p. 33. 36 ON THE TEIAL BY JURY. not be received from the witnesses, but only from the assise, and because witnesses were sworn simply to speak the truth, without saying according to their knowledge (a leur estianf), for they ought to testify nothing except that which they shall see and hear. It thus appears that the duty of a mere witness was understood to consist merely in the detail of facts which h'e had actually seen or heard, as distinguished from any statement of knowledge through other means ; it follows that the assise or jury were en- trusted with the power ol' judging on these facts, to enable them to return a proper verdict. The wit- nesses and assise having found, in conjunction, that the deed was false, judgment was awarded for the plaintiff. But, (on motion made that the deed should be condemned) the question arose incidentally whether the defendant might not have his remedy by attaint, and Thorpe, C. J., held that he might, for although the witnesses joined in the verdict, yet, as their duty , was simply to declare what they had seen and heard, the verdict was that of the inquest, and it was said that, even had the inquest and witnesses disagreed as to the verdict, the verdict of the inquest should be taken.i It appears, then, from this authority, that the tran- sition had then been made from a jury of mere reeog- 1 The concluding words of tlie report are " Et auxy fuit parU q en case testm aont aioint a un enquest et les tesm et I'enquest ne puissent pas assenter a un verdict, le verdict serr pris de lenquest a per luy, et en tiel cas la partie center que il passa puit aver 1' attaint," &c. It seems to be not improbable that the words a per luy require correction, the real meaning may have been that in case the inquest dissented from the witnesses, the verdict of the former was to be taken at their peril. ON THE TRIAL BY JUET. 37 nitors to one empowered to decide on testimony laid before them ; that is, from a tribunal included within the second to one within the third of the classes above distinguished. For it is to be recollected that, although the powers of the jury were greatly ex- tended when they were thus enabled to judge of tes- timony, they were yet required to decide on their own knowledge of the fact when they possessed any such, and were still required to be summoned from the vicinage. It is also observable, that the authori- ties which we have referred to relate to documentary witnesses. But although the transition may have been at first but partial, still it was complete so far as regarded the plainly marked distinction between a jury deciding merely on their own^ knowledge, and one judging on the testimony of mere witnesses. It can scarcely be doubted that, when the practice of hearing evidence before jurors at the bar, before they had retired to consider of their verdict, had been es- tablished as regarded charters and deeds, it was soon afterwards extended to all other documentary evi- dence, and to any other kind of evidence which they were permitted to hear.^ In the second year of the reign of Edward VI., we find an interesting statement concerning the func- tions of a jury made by Sir Robert Brooke, the Re- corder of London, in the case of Reniger v. Fagossa.^ " As £o that which has been said by the King's attorney, that there ought to be two witnesses to prove the fact, it is true that there ought to be two 1 The hearing of evidence at the bar was certainly in practice in ths eleventh year of Henry IV. 2 Plowd. Com. 12. 38 ON THE TRIAL BY JURY. witnesses at least where the matter is to be tried by witnesses only,i as in the civil law, but here the issue was to be tried by twelve men, in which case wit- nesses are not necessary, for in many cases an inquest shall give a precise verdict although there are not witnesses, or no evidence given to them. As, if it be found before the coroner, super visum corporis, that I. S. killed the dead person, and he is arraigned and acquitted, the inquest shall say who killed him although they have not any witnesses, so that wit- nesses are not necessary but where the matter is to be tried by witnesses only.^ For if witnesses were so necessary, then it would follow that the jurors could not give a verdict contrary to the witnesses, whereas the law is quite otherwise, for when the wit- nesses for trial of a fact are joined to the inquest, if they cannot agree with the jurors, the verdict of the twelve shall he taken, and the witnesses shall he re- jected: therefore this point is clear enough." We will now pause to consider the importance of the transition thus made. Jurors, from being as it were mere mechanical recipients and depositaries of knowledge, which they communicated on inquiry made, exercised the more intellectual faculty of form- ing conclusions from testimony, a duty not only of high importance with a view to truth and justice, but also collaterally, in encouraging habits of reflection and reasoning, which must have had a great and 1 This, however, seems to he moorreot : one witness, by the law of England, seems to have been sufficient, although the authorities are not uniform. ^ From these positions, it appears that in the reign of Edward VI., jurors were regarded as exercising the mixed function, to which we have adverted ; acting partly as recognitors, partly as judges on evidence. ON THE TRIAL BY JUEr. 39 most beneficial effect in promoting civilization. The changes in legal practice naturally, nay, almost neces- sarily, consequent on the transition, were very re- markable. It is proper, before we advert to them, to observe that, previous to this transition, and whilst jurors were mere recognitors, the Court exercised a very vigilant superintendence in examining the jurors separately, whenever such examination appeared to be necessarj"^ in order to ascertain whether the knowl- edge of the fact in question which they professed to have, was drawn from legitimate and credible sources. This security for the truth of a verdict of course failed, when the jurors themselves might found their verdict merely on the evidence of witnesses. Superintendence for the. purpose of excluding evi- dence from impure or suspected sources could not then be exercised unless the evidence were given in the hearing of the Court. This was accordingly done. The change probably occurred soon after the alteration made by adjoining the witnesses to the jury: it certainly had been made in the eleventh year of Henry IV., as we find from the report of a case of that date that a verdict was set aside because the jury, on their departure from the bar to consider their verdict, had taken with them an escrow which had not been proved in evidence at the bar by the party, nor delivered to them by the Court. The exercise of this kind of control was, in truth, the foundation of that system of rules concerning evidence before juries, which has since constituted so large and important a branch of the law of Eng- , land. The great and leading principle on which its numerous rules depend, is the exclusion of all such 40 ON THE TRIAL BY JURY. evidence from the jury as is likely to mislead or 'preju- dice their judgment: they are, indeed, the rules on which the Courts act in exercising a control in re- spect of the kind of knowledge which a jury ought to possess to warrant their verdict, and which was originally exercised by examining the jurors them- selves. The practice of receiving evidence openly at the bar immediately led to another remarkable result, — the great extension of the duty of an advo- cate. In earlier times a trial was a very quiet and comparatively dull and uninteresting proceeding. Upon criminal as well as civil inquiries the jury, after they had been sworn and merely charged by the Court as to the points at issue, retired to consult together in secret, without hearing either witnesses or counsel at the bar. But now the scene was to- tally changed ; witnesses were examined and cross- examined in open court ; the flood-gates of forensic eloquence were opened, and full scope given to the advocate to exercise his ingenuity and powers of per- suasion on the jurors, to whose discretion the power of judging on matters of fact was now entrusted.^ 1 It is difficult at this time of day to form any just and distinct con- ception of the revolution in legal habits and practices occasioned hy this change. Before it had taken place, the lawyer's time and attention must have been occupied by the dull pedantry of technical forms, and minute and subtle legal distinctions, oftentimes founded on arbitrary antiquated principles ; his arguments were confined to solemn debates on venues, discontinuances, miscontinuances, disseisins, color, cum plu- rimis similibus, now seldom heard of. But "a change comes o'er the spirit of my dream." — The lawyer's tongue was loosened, he was no longer confined to apices juris ; the halls of justice resounded with elo- quent speeches to the jury, discussions as to evidence, and motions for new trials ; in short, the advocate began to revel in all the multifarious matter of Nisi Prius business. ON THE TRIAL BY JURY. 41 Even still another and very important consequence claims remark. When a jury who gave or were pre- sumed to give their verdict as upon a fact within their own knowledge came to a wrong decision, they must usually have been guilty of perjury, and, con- sequently, an attaint for their false verdict was a rea- sonable mode of proceeding against them. When they became judges of the fact upon evidence, the liability to attaint evidently became unjust and im- politic, because it placed jurors in jeopardy for mere error in judgment. The proceeding by attaint, there- fore, virtually fell into disuse, and the means of cor- recting error and mistake on the part of a jury were left without adequate remedy until the middle of the 17th century, when the practice of granting new trials became common. It is singular that the con- sideration of questions arising upon motions for new trials, a duty ^ which now occupies so large a portion of the time and attention of the common-law Courts, should not have had an earlier commencement, when it is recollected that the trial by jury had then been practised in this country for the space of five centu- ries at the least. We have seen, however, that jurors do not appear to have acted as judges of the fact upon evidence laid before them till the reign of Edward III. As our present object is to trace the history of the 1 It has been said that the first reported case is that of Wood v. Gunstone, Style, 462. It has also been asserted that motions for new- trials were allowed at an earUer period, although not reported. It seems to be pretty clear from the observations made in the case of Wood v. Gunstone, that although the practice might not be new, it had by no means become common. 42 ON THE TRIAL BY JURY. jury trial, we should be guilty of a departure in en- tering upon a consideration of the practical effect of this change, in occasioning so large an accession to the ordinary business of the' Courts of Common Law in deciding on applications for new trials. Be it for good, or be it for evil, motions for new trials, which, until the middle of the 17th century, were, if not altogether unknown, exceedingly rare, now occupy a very considerable portion of the time of those courts. Having now considered the period during which the jury exercised the mixed functions of recognitors on their own knowledge, and judges of the fact upon evidence laid before them, we advert to the last of the transitions to which we have alluded, which con- sisted merely in limiting their duty to the latter of these functions. This has been made in compara- tively modern times, and being, consequently, matter of notoriety, may be briefly dispatched. The prin- ciples which warranted such a change are obvious ; — it was found that the cause of truth suffered more from the prejudices which the residence of jurors in the neighborhood of the disputed fact were likely to engender, than was gained from knowledge and means of judging so acquired. This would, no doubt, have been of itself' a conclusive reason for the altera- ' tion ; but, in addition to this, it appears from the re- ports, that the rules as to venue were productive of such frequent doubts, and so much litigation, that it became highly expedient to get rid of them. The necessity for having hundredors on the inquest was altered, as respects their number, from time to time. In the reign of Edward III., the attendance ON THE TEIAL BY JURY. 43 of six was necessary, but in that of Heniy VI., the number was reduced to four; and although in the reign of Henry VIII. six were again required, in the reign of Queen Elizabeth ^ the number was re- duced to two. The practice, however, was exceed- ingly irksome, and frequent evasions were favored.^ Afterwards, by the 4 & 5 Anne, c. 16, and 24 G. II. c. 18, the law requiring jurors to be returned from the vicinage or hundred was abolished in all civil actions, and it was directed that they should be sum- moned from the body of the county. Although so far as the statutes above cited ex- tended it was no longer necessary that the jury should be returned from the vicinage, these enactments con- stituted but indirect authorities for the position, that juries ought not or might not still rely on their own knowledge, of the fact. This may seem, perhaps, to have been virtually decided by the Courts when they first began to grant new trials, on the ground that the verdict was against evidence, or not supported by evidence, for so long as juries might have so decided it could not have been properly assumed that the ver- dict had not proceeded on the jurors' own knowledge of the fact. An express judicial declaration on this subject was made by the Court of Queen's Bench in • the first year of Queen Anne, to the effect, that if a jury give a verdict of their own knowledge, they ought to tell the Court so, that they may he sworn as witnesses, and that the fair way was, to tell the Court, before they were sworn as jurors, that they had evi- dence to give.3 And in the case of Smith v. Park- 1 27 Eliz. c. 6. '^ 1 Ins. 157. » Pasc. 1 Ann., 1 Salk. 405. It is stated in 2 Hale's P. C. 306, that 44 ON THE TRIAL BY JURY. hurst,' the case of Kitchen v. Manwaring,^ was cited, to which a new trial was prayed for, because after the withdrawing of the jury one of them offered evi- dence to the others, and it was refused only because Powel, J., who tried the cause, reported that the verdict was according to the evidence, otherwise it would have been granted. It appears, from what has been said, that the jury of the present day is distinctly traceable to the jic- rata patriae, which was recognized in the reign of Henry II. as an established institution, and which, in all probability, existed before the Conquest. That although the functions of the ancient and modern juries are completely distinct, the former being mere recognitors, deciding on their own knowledge, whilst the latter are judges of the fact upon evidence, yet are they completely connected by the jury of mixed functions. That these transitions have been improve- ments gradually made for convenience' sake, the ori- ginal tribunal being one of the most simple form. The question, therefore, when did the trial by jury begin, admits of no definite answer, otherwise than as regards the different transitions which have been alluded to. It is only in modern times that the in- stitutiou has been reduced to its present form, by excluding the exercise of a mixed function, and con- fining the duty of a jury solely to the judging, of facts on evidence laid before them, to the rejection of any private knowledge of their own. This transition if a juryman have a piece of evidence in his pocket, and after the jury have been sworn and gone together, he show it them, this is a misde- meanor, and finable in the jury, but it avoids not the verdict. — 23 C. I. 1 Andrew, 315. " As decided in K. B., Pasc, 12 G. L ON THE TRIAL BY JURY. 45 was complete when the legislature rendered it unne- cessary that the jury should be of the vicinage, it having been judicially decided that a juror who had knowledge of any material fact ought not to commu- nicate it privately to his fellows, but that he ought to be examined, as any other witness was, upon oath, in open court. This, it appears, was declared in the first year of the reign of Queen Anne. The jury of mixed functions may, for the reasons already stated, be fairly ascribed to the reign of Edward III., for it was then judicially declared that the verdict of the jury was good, although it varied from the opinion of the witnesses joined with the jury. At what time inquiry was first made by a jury of simple recognitors, it seems to be now impossible to ascertain ; probably the practice was in use before the Conquest, even as regards the trial of facts : that preliminary inquisi- tions in criminal cases were in use before that time is certain. It also appears, from what has been said, how little foundation there is for the notion, that the unanimity of the jury in a criminal case was required on a prin- ciple of compassion: in times of remote antiquity, unanimity was not essential in any case, civil or crim- inal, although in later times the rule which was established in criminal applied also to civil proceed- ings.^ 1 According to tie Mirror, indeed, an unanimous verdict by a jury of twelve was essential to a conviction in the time of King Alfred. Ac- cording to him, King Alfred was mueli in the hahit of hanging unjust judges, and executed no fewer than forty-four in one year. Amongst others we find that he (Alfred) hanged Oadwine, because that he judged Hackwy to death without the consent of all the jurors, whereas he stood on the jury of twelve men, and because the three would have 46 ON THE TRIAL BY JUEY. It will also be seen from what we have said, how completely the principle and character of the institu- tion has been gradually changed, while its identity has been preserved unbroken by any peremptory or- dinance. It is also worth while to remark, how slow the progress of this institution has been. Almost seven centuries have elapsed since the time when the jury was treated of by Glanville as an established recognized tribunal. The jurors were, however, then mere recognitors, deciding on their own knowledge of the fact, and so they continued to be in the thir- teenth century, when in the reign of Henry III. we find the mode of trial used per patriam et testes. It was not till the middle of the fourteenth century that we find witnesses made adjuncts to the jury, and the testimony of the former declared to be subject to the judgment of the latter. And although, when the power of the jury to judge on evidence had thus re- ceived legal sanction, the doctrine of attaint was no longer in principle applicable, it still continued to be the only means to which a party could resort to get rid of a false verdict until the middle of the seven- teenth century, when the present practice of grant- ing new trials was substituted. Long after the ancient practice of proceeding by attaint had fallen into dis- use, and at least four hundred and fifty years after the time when such a proceeding could in principle be applicable, it was deemed proper expressly to abol- ish it.i Again, great and beneficial as the change was saved him against the nine, Cadwine removed the three, and put others upon the jury, upon whom Hackwy put not himself. This account, though probably fabulous, may yet afford some evidence as to the state of the jury at the time when the author wrote. ^ It is well that the virtual repeal of an unjust and absurd law doea not always await the tardy progress of legislation. ON THE TRIAL BY JURY. 47 in the constitution tif the jury, when thfey became judges of the fact'nearly five centuries ago, it is sin- gular that for so long' a time they should still have been considered as acting partly also as recognitors On their own knowledge of facts, notwithstanding the numerous difficulties with which the old doctrine as to venue V7as beset, and which continued to be the law untilthey^ were at last removed by the means already stated. Although the present jury law has, no doubt, been greatly improved by- a series of gradual changes, to the most important of which we have adverted, and Which have been adopted as convenience dictated to suit the exigencies of justice, it must not be supposed that the. institution is not capable of improvement, or even that it does not contain some considerable imperfections. The consideration of these does not fall within the scope of our present design ; we will, however, allude to one, which may also be cited as a strong instance to show the danger of leaving legal ' improvements to the slow process of gradual change arising out of circumstances: we allude to the rule which requires jurors to be unanimous in their ver- dict. In the case of a popular tribunal consisting of a body or class of persons, of indefinite number, to require unanimity in their verdict would of course be absurd ; where a- peer is at this day tried before the House of Lords on a charge of felony, a bare majority is sufficient to support a conviction. It has been seen thart formerly, where jurors could not agree in their verdiet upon an assise, they were afforced ; that'iS, an additioitt was made to their knowledge and means of judging by adding to their number others 48 ON THE TRIAL BY JURY. acquainted with the fact ; this was a reasonable prac- tice : in other cases it is probable that the juries were either afforced, or that the decision of the original juries depended on the opinion of the majority. The practice of afforcement being inconvenient, fell into disuse, and it became a settled rule that the verdict should be the unanimous verdict of the original twelve jurors ; and that in case of disagreement means should be used to compel them by confining them together without allowing food or fire, or communication with others, until they had agreed ; and if not before agreed, by conveying them in carts after the judge in his progress on the circuit to the border of the county.^ This practice, so contrary to reason, ap- pears to have been introduced simply to get rid of a practice which, though reasonable in itself,^ was found to be attended with trouble. The principle of the rule concerning the unanimity of jurors consists in establishing an artificial test of truth, such that a party, on whom the onus of prov- ing the affirmative is thrown must fail, unless twelve jurors agree in finding the truth of that affirmative upon oath. This is in itself an unreasonable test, which must often exclude the truth, even where there is great preponderance of probability in its favor ; it gives far too great a weight to the probable error of a single individual who differs in his judgment from the rest, and enables a dishonest juror to commit 1 41 Ass. pi. 11. Et nota que les justice disent quils duissent aver carii I'asaise ovesque enx en cliarr tanqe ils fuissent accord, &c. It was also decided there that the taking the verdict of eleven, and committing the twelfth juror because he dissented from the verdict of the others, was illegal. ^ That is, when jurors were mere recognitors. ON THE TRIAL BY JURY. 49 gross injustice. The law proposes to remedy the de- fect, not by compelling the jurors to agree, for that is impossible, but by forcing them to say that they agree , the test, therefore, is in truth abandoned : not only so, but another, and that, a strange one, is substi- tuted ; the verdict is to depend on the juror who can longest endure cold, hunger, thirst, confinement, and want of rest. We have no room at present to expatiate upon the numerous objections which array themselves against such a merely artificial, peremptory, and indiscrimi- nating rule, which applies equally to cases where the issue of life or death is involved, as it does to mere cases of civil right, which ought to be governed by little, if anything, more than a mere preponderance of opinion. Whilst many beneficial changes have been introduced, as we have seen, in more enlightened ages, this rule has descended to us in a state of un- mitigated barbarism. Intending to resume our obser- vations at a future opportunity, we shall have attained our present object if, by any of our details or remarks, we may have succeeded in stimulating inquiry upon so important a subject as that of the Trial by Jury. '■'^ y, ,/ '.// / /'yy 'y j^'/f/-fyfjv^ V yy y^ ^/' '■■«"'■' *»^ ^'/'/ yy/'y/,Cyy^J/^jk%^^.