Page:Harvard Law Review Volume 5.djvu/377

THE JURY AND ITS DEVELOPMENT. 36 1 standing, acting under oath, from among persons of the neighbor- hood where the matter in question is supposed to exist or take place, men of property, indifferent between the parties, subject to challenge by both, acting under oath. They are informed of the controversy by the court, and the parties or their counsel, and their witnesses, and confer together afterwards privately and with deliberation, and return and give their answer publicly in court. 1 After this verdict, an aggrieved party, by the writ of attaint, through the oath of twenty-four men of much better estate than the twelve, may convict the latter of a false oath, •and subject them to the severest punishment. And then (c. 26), Fortescue sums up : " Here no one's cause or right fails by the death or failure of witnesses. No unknown witnesses are pro- duced here, no paid persons, paupers, strangers, untrustworthy or those whose condition or hostility is unknown. These witnesses {isti testes) are neighbors, able to live out of their own property, of good name and unsullied reputation, not brought into court by a party, but chosen by an official who is a gentleman and indifferent, and required (compitlsi) to come before the judge. These (isti) men know everything which the witnesses can depose ; these (isti) are aware of the trustworthiness or un- trustworthiness, and the reputation of the witnesses who are pro- duced." In this account it is obvious how great a figure that old quality of the jury still plays, which made them witnesses; it is the chief thing. The point of all this elaborate contrast is the greater number and better quality of the English witnesses, and the greater security there is in the impartial methods of procuring them. While they may be informed by other witnesses, produced by either party, yet they know already what is to be told them- 1 Fortescue's statement of the mode of proceeding at the trial is too interesting to be omitted: "The whole record and process will be read to them [the twelve] by the Court, and the issue upon which they are to certify the Court will be clearly explained to them. Then each party, personally or by his counsel, in the presence of the Court, will state and show to the jurors all the matters and evidences which he thinks can instruct them as to the truth of the issue thus pleaded. And then each may introduce before the justices and jurors all the witnesses that he wishes to produce on his side, who, being charged by the justices on the holy evangelists of God, shall testify all that they know bearing upon the matter of {a.z.(probantia veritatem facti) which is in controversy. If need be, these witnesses (testes hujusmodi) may be separated until they shall have deposed what they will, so that the saying of one shall not inform another, or stir him to the giving of like testimony." Thereupon the jurors go out and deliberate.