Page:Harvard Law Review Volume 5.djvu/313

THE JURY AND ITS DEVELOPMENT. 297 agree let them be separated and examined why. If the greater part know the truth and a part not, let judgment be given with the majority." In 1292 (PI. Ab. 286, col. 2) it appeared that certain justices, four years before, had given judgment on a verdict of eleven jurymen, obtained by removing the twelfth, who would not agree. In 13 18-19, Bereford, C. ]., when the twelfth juryman on an inquest had not appeared, asked the parties whether they would agree to going on with eleven ? The reporter notes it as a question, whether this can be done by assent in "pleas of assise and attaints." 1 Fifty years later, on the taking of an as- sise, one juryman would not agree with the other eleven. The justices took a verdict from these and imprisoned the twelfth. 2 On moving for judgment, counsel urged that it had formerly been ad- judged in trespass that a verdict of eleven might be good, "and this we will show you by record." Thorpe, C.J. : "It is funda- mental (la ley fuit fondue) that every inquest shall be by twelve . . . and no fewer. . . . Though you bring us a dozen records, it shall not help you; for those who gave judgment on such a ver- dict were greatly blamed." Moubrey, J. : "Since the verdict was by eleven and judgment cannot be rendered, sue out a new inquest and let the man imprisoned be discharged." 3 The requirement of twelve in the petty jury, unless by consent, and the need of unanimity, seemed now to have become the settled rule. 3. As to informing the jurors : (a) In the first place, they were men chosen as being likely to be already informed ; in this respect, as well as others, they were a purged and selected body. I pass by the matter of precautions taken, by way of chal- len£>2 and otherwise, to keep off persons unsuitable by reason of favor to a party, or of want of property or social standing, /uways they were from the neighborhood — de visineto. This ex- pression was not precisely defined, beyond its meaning from the same county; but in practice it went much further. It became the practice to require that a certain number of the jury should come from the particular hundred in question ; and these men were expected to inform the others. In an important case of 1374, Belknap, C. J., says: "In an assise in the county, if the court does not see six, or at least five, men of the hundred where 1 Y. B. 12 Ed. II.373- 3 In 1202 (Seld. Soc. Pub. iii. case 241) one juryman differing from the eleven was fined. 8 Y. B. 41 Edvy. III. 31, 36.