Page:Harvard Law Review Volume 5.djvu/331

THE JURT A ND ITS DE VEL OP ME NT. 3 1 5 on the record evidence, i.e., explanatory and probative allega- tions, and they give as a reason for entering it, the danger that the jury will go wrong, from not apprehending the facts and from not separating facts from law. Once entered on the record, there could be no doubt of its being brought to the jury's knowl- edge; and in case of an attaint.it fixed them with notice of it. Observe how this is spoken of. In 1430 (Y. B. 9 H. VI. 63, 16), where, in an action of trespass, the defendant sought to plead specially, it was refused. "We pray," says counsel, "that all may be entered for evidence. Martin [J.], You have alleged only what you can give in evidence. Paston [J.], If this matter be not entered, the party is in danger of great mischief, for where one pleads merely not guilty, the jury has no regard to the place where the trespass is done ; that is the common way of jurors. Martin [J.], We cannot adjudge the law according to the understanding of jurors. If they find him guilty of tres- pass in another county, clearly the attaint lies for the defend- ant." Only a little later (Y. B. 11 H. VI. 1, 2), in an action of waste, the defendant objected to the particularity of the declara- tion : " It has not until lately been the practice to count so, but generally. . . . Martin [].]. It is a good practice, for if he counts generally and the other pleads mil wast fait, the laymen perhaps will find no waste." In 1436 (Y. B. 14 H. VI. 23, 67), in trespass, the defendant urged these same reasons for entering his special plea : Juyn (J.), " I will not say that we cannot enter all this matter, 1 but if we should it would bring great comberance to the court. If we do it in this case we must in all others ; and if we should enter such things we shall not have clerks enough in this place." Only the general issue was entered. In the Year Book 19 H. VI. 21, 42, a valuable little note, or sraall treatise, on " Color " is preserved, in which the need of entering special matter is pointed out in order to prevent the laymen from passing on questions of law. This sort of discussion is constantly going on. We are not, then, to suppose because witnesses were not in general called to testify to a jury, that therefore the jury did not receive any evidence. The original simple conception of them as a body of witnesses, who "tried " the case by their answer was, 1 For the court's discretion as to this, see Brooke, Ab., Gen. Issue, 15.