Page:Harvard Law Review Volume 5.djvu/399

THE JURT A ND ITS DE VEL OPMENT. 383 fact one way rather than the other; for if he could, "the jury is but a troublesome delay, great charge, and of no use." The judge cannot know all the evidence which the jury goes upon; they have much other than what is given in court. They are from the vicinage, because the law supposes them to be able to decide the case though no evidence at all were given in court on either side. They may, from their private knowledge of which the judge knows nothing, have ground to discredit all that is given in evidence in court. They may proceed upon a view. 1 " A man cannot see by another's eye, nor hear by another's ear ; no more can a man conclude or infer the thing to be resolved by another's understanding or reasoning." It is absurd that a judge should fine a jury for going against their evidence, when he knows but part of it, " for the better and greater part of the evidence may be wholly unknown to him ; and this may happen in most cases, and often doth, as in Grandby and Short's Case." 2 (/.) Two things stand out prominently in Vaughan's opinion in Bushel's Case : 1. The jury are judges of evidence. 2. They act upon evidence of which the Court knows nothing; and may right- fully decide a case without any evidence publicly given for or against either party. It was now two hundred years since Fortescue wrote his book and showed witnesses testifying in open court to the jury ; and as we see, not yet has the jury lost its old character, as being in itself a body of witnesses ; indeed, it is this character, and this fact that the judge cannot know the evi- 1 For the modern way of dealing with this matter of the view see Tully v. Fitchburg R. R. Co., 134 Mass. 499, 503. As regards difficulties that some courts have felt in har- monizing the function of the court in setting aside verdicts, with that of the jury in act- ing upon a view and in dealing with the evidence of experts, see Topeka v. Martineau, 42 Kansas, pp. 389-91 ; Hoffman v. R.R. Co., 22 Atl. Rep. p. 826; Parks v. Boston, 15 Pick, pp. 209-11, and the excellent remarks of Shaw, C. J., in Davis v. Jenney, 1 Met. pp. 222-3 8 Cro. El. 616 (1598). Bushel's Case marks the end of the whole anachronism of punishing jurors for their verdicts as being against evidence; for, although the attaint was not abolished until 1825, it was but a name. Yet Vaughan's successor, Sir Francis North, afterwards Lord Keeper, did not at all like this result. In that delightful book, "The Life of the Lord Keeper Guilford," his brother, Roger North (i. p. 131), preserves a remark by the Lord Keeper that the doctrine " that juries cannot be fined for slighting evidence and directions [is] contrary to reason and the whole course of precedents.'* Roger North adds, "This was popular, and the law stands so settled. The matter is trust, whether the Court or jury. The Court may abuse a trust in an undue punishment ( f jurymen, as in any other acts of justice ; and on the other side, juries may abuse their trust . . . The precedents run all for the trust on the side of the Court; what reason to change it (which was changing the law) but popularity."