Page:Harvard Law Review Volume 5.djvu/323

THE JURY AND ITS DEVELOPMENT, 307 Before leaving this class of cases, it is interesting to notice that two centuries ago the Puritans of our Plymouth Colony used now and then, out of policy, when they were trying a case relating to an Indian, to add Indians to the jury, as in a criminal case in 1682. 1 (/) Our earliest records show the practice of exhibiting charters and other writings to the jury. These things, par excellence, used to be known as " evidence " and "evidences." In a great degree, they belonged to the stage of pleading, — in so far as they were wholly or in part the ground of action or defence, or a negation or qualification of it. A record, and so a fine or recognizance, or a charter under seal, bound one who was a party to it and some- times one who was not. Should such a thing be produced in pleading, the execution of it must be admitted or denied. If admitted, that was the end of the matter. If denied and put in issue, then the question was on the genuineness of it, not on its truth or operative quality. Such documents, if admitted, must be met by others of equal force. When the pleadings were over, it might well be that they should be shown to the jury in illustration of the exposition made to the jury by counsel ; in fact, this was often done, "to inform the jury." Other documents also were shown to the jury, — any which might illustrate or support the statements of counsel. And these statements themselves were " evidence." It must be closely held in mind that all through the period when the jury went on their own knowledge, they listened to perfectly unsupported narratives of fact from counsel, not under oath. How if one who should have pleaded a charter or record did not plead it, relying, perhaps, on the jury, who might know of it ? Could they find a matter of record or a deed without having it shown them ? If they knew of it, must they find it, — being sworn to tell the truth ? And how if they know the fact to be otherwise than as this deed or record represented it ? How if they knew the fact to be otherwise than as the pleadings represented it ? Were they not perjured if they did not tell the truth? These 1 Plym. Col. Records, vi. 98. So in 1675 (ib. vol. v. 167-8), six Indians were added to the jury of twelve, on the trial of three Indians for the murder of another Indian. •'It was judged very expedient by the Court that . . . some of the most indifferentest, gravest and sage Indians should be admitted to be with the said jury, and to help to con-, suit and advise with, of and concerning the premises." The verdict ran thus : " We of the jury, one and all, both English and Indians do jointly," etc.