Page:Harvard Law Review Volume 10.djvu/185

GROWTH OF TRIAL BY JURY IN ENGLAND. 159 from witnesses, but from the jurors of assise." And it was said that, when the witnesses did not agree with the verdict in an inquest, the defeated party might have an attaint. The difficulty that was found of procuring a verdict of twelve caused for a time the verdict of the majority to be received. In the time of Edward IV., however, the necessity for a unanimous verdict of twelve was re-estabhshed. In the Year Books of 23 Edward III. mention is made of wit- nesses being adjoined to the jury to give their testimony, but with- out any voice in the verdict. This is the first indication of the jury deciding on evidence formally produced in addition to their own knowledge, and forms the connecting link between the ancient and modern jury. As the use of juries became more frequent, and the advantage of employing them in the decision of disputes more manifest, the witnesses who formed the secta of a plaintiff began to give their evidence before them, and, like the attesting witnesses to deeds, furnished them with that information which in theory they were supposed to possess previously respecting the matter in dis- pute. The rules of evidence now became more strict. We find that early in the reign of Henry IV. a still further advance was made. All evidence was required to be given at the bar of the court, so that the judges might be able to exclude improper testimony. From this change two important consequences followed: (i) from the exercise of control on the part of the judges sprang up the whole system of rules as to evidence ; (2) the practice of receiving evi- dence openly at the bar of the court produced a great extension of the duty of an advocate. Henceforward witnesses were examined and cross-examined in open court. Except as regards the right of the jury to found their verdict upon their own private knowledge, the trial was conducted on much the same principles as at the present day. Juries were, however, for a long time entitled to rely on their own knowledge in addition to the evidence. In the first year of Queen Anne the Court of Queen's Bench decided that, if a jury gave a verdict of their own knowledge, they ought so to inform the court, that they might be sworn as witnesses. This and a subse- quent case in the reign of George I. at length put an end to all remains of the ancient functions of juries as recognitors. While the jurymen were mere recognitors, if they gave a wrong verdict they must usually have been guilty of perjury. Hence, at common law, they became liable to the writ of attaint. In attaint the cause was tried again by a jury of twenty-four. If the verdict of the sec-