Page:Harvard Law Review Volume 5.djvu/379

THE JURY AND ITS DEVELOPMENT. 363 and he shows, etc. . . . And the rent-collector was also ex- amined on a book as to this," etc. 1 Then Guy Fairfax, counsel for the plaintiff, tells another story as to what took place at the view. Then came some discussion on points of law. Then the judges suggested to the defendant's counsel that if they wished to rest upon the plaintiff's evidence not denied by them, they might discharge the inquest and demur upon the evidence ; or if they were willing to run the risk of what the jury would say, the evi- dence might stand just as it was. The defendants preferred to go to the jury. Then came a discussion over a point of law, and then the charge : " Sirs, you have had much evidence from both parties. Do in this matter as God will give you grace and according to the evidence and your conscience. You will not be compelled to say, precisely, disseisin or the contrary, but you may find the fact, i.e., the special matter, so as to give a special verdict on that and pray the judgment of the Court. And so go together, etc." The jury found for the plaintiff. In passing from this matter of the ways of informing the jury, it must be remembered that although we have now reached modern methods, we are very far indeed from having reached the modern conception of trial by jury. Look, for instance, at Coke's ideas, a century and a half later, when he is explaining certain statutes as to treason and perjury (3 Inst. 26-7; ib. 163). The statutes of I Edw. VI. c. 12 and 5 & 6 ib. c. n, had required two accusers {i.e., witnesses), in order to a conviction of treason. And then a statute of 1 & 2 Ph. & M., c. 10, had enacted that all trials for treason should thereafter be " had and tried only accord- ing to the due course and order of the common law." Coke says that this last statute does not repeal the others, for it " extends only to trials by the verdict of twelve men de vicineto, of the place where the offense is alleged ; and the . . . evidence of wit- nesses to the jury is no part of the trial, for by law the trial in that case is not by witnesses but by the verdict of twelve men ; and so a manifest diversity between the evidence to a jury and a trial by 1 One observes that only the defendant's farmer and rent-collector seem to have testi- fied; all others are merely ready at the bar. Did the doctrine of maintenance operate to make it necessary for those having no special relation to a party to wait until the court or jury asked for them? This method may well have been favored as a rule of practice, from an unwillingness of the court to lengthen trials, — the statements of counsel as to what his witness had to say, accompanied by the production of these, serving in great part as a method of putting in evidence.