“If the jurors are altogether ignorant about the fact and know nothing concerning the truth, let there be associated with them others who do know the truth. But if even thus the truth cannot be known, then it will be requisite to speak from belief and conscience at least.”
Clearly, therefore, the jury spoke as representative of the countryside rather than as a body of witnesses.
EARLY OPINION ABOUT THE JURY
Bracton seems to be fairly satisfied with the jury as an institution, but other writers of almost the same date confirm the impression conveyed by the statute which we have just quoted. The Mirror of Justices, which was a vigorous criticism of the administration of the law written about 1290, contains a violent attack on the jury.3 In those parts of France also, where the jury for a time took root, there were protests against it as oppressive.4
From the reign of Edward I onwards the function of the jury was slowly being judicially defined; questions of law began to be separated from questions of fact,5 and gradually unanimity was required—although for some time there were doubts whether a verdict by eleven jurors was not sufficient, in which case the twelfth might be committed to prison.6
In 1468 Fortescue gives us a picture of jury trial which is to all intents and purposes in modern form. By this date he is able to regard the jury as a body of impartial men who come into court with an open mind; instead of finding the verdict out of their own knowledge of the events, the parties or their counsel in open court present their evidence to the jury, and witnesses are examined upon oath.1 A century later, Sir Thomas Smith gives a vivid account of a jury trial and shows not only the examination but also the cross-examination of witnesses in the presence of the judge, the parties, their counsel and the jury.2 Although this was becoming the practice, relics of the older order survived, and we have the perennial spectacle of trouble caused by casual reform which did not make a clean sweep of the past. Just as Fortescue harked back to an obsolete conception of the jury in saying that a man who volunteered to give evidence would be punished for maintenance (for he ought to have waited until the jury went to his house in the country to ask him what he knew3), so too, while Sir Thomas Smith was describing the jury as a purely judicial body, and statute was compelling the attendance of witnesses,4 jurors were still allowed to use their own knowledge in reaching a verdict,5 and might reach a verdict although no witnesses and no evidence had been produced.6
THE EARLY HISTORY SUMMARISED
From one common origin, therefore, we have derived several varieties of jury. On the criminal side the royal inquisition became the grand jury for presenting criminals, and when the older forms of trial ceased to function then a trial jury for indicted prisoners was assembled from the indictors and the neighbouring vills: simultaneously, many appellees avoided trial by battle by purchasing from the crown the privilege of a jury, and so we get the trial jury for felonies. On the civil side the royal inquisition became available to private litigants for the trial of right to real property, and the petty assizes, with the “grand assize”, were clearly the model for jury trial in writs of entry and other real actions. Somewhere between these two lines of development there lies the action of trespass. According to one view it derives from the appeals of felony; others trace it to the petty assizes. However that may be, jury trial almost immediately became normal in trespass, both for the trial of misdemeanours and of torts. In the end, trespass and its derivatives supplanted the old real actions (and also the old personal actions of debt, detinue, etc.) with the result that all the civil trial juries now in use descend directly from the jury in trespass, as likewise the juries for the trial of misdemeanours.
7.
Post-mediaeval problems
THE REVIEW OF VERDICTS
Even as Fortescue wrote, however, jury trial, both civil and criminal, had already entered upon its decline, and there were numerous complaints of the corruption and partiality of jurors. The heavy expense falling on jurors was evidently a problem. Jurors attending the eyre at Bedford in 1330 seem to have been paid out of a county rate levied for the purpose.1 Whether this was done elsewhere, and for other occasions, is not known. Wealthy litigants certainly seem to have felt it proper (perhaps even prudent) to contribute fairly handsomely to the expenses of jurors—and jurors had themselves to pay fees in an eyre.2 Surviving household accounts show that litigants incurred considerable expense in the matter of jurors,3 and it is obvious that the line between legitimate contributions to the expenses of a costly journey, and corrupt practices, was difficult to draw. It therefore became more and more necessary to devise means for reversing verdicts.
The only ancient method available was by attaint.4 This consisted in summoning a jury of twenty-four, and the proceedings were not merely a reconsideration of the facts in dispute, but also a criminal trial of the first jury for perjury. This was only logical at a time when every jury spoke out of its own knowledge of the facts involved in the case. Their function was to tell upon oath the facts which they knew; it was not their duty to act as impartial judges of evidence produced before them. If such jurymen returned a verdict which was demonstrably false, and in spite of their own better knowledge of the facts, then it was obvious that they had committed perjury and deserved the punishment provided for attainted juries:
“All of the first jury shall be committed to the King’s prison, their goods shall be confiscated, their possessions seized into the King’s hands, their habitations and houses shall be pulled down, their woodland shall be felled, their meadows shall be plowed up and they themselves forever thenceforward be esteemed in the eye of the law infamous.”5
Attaint first appears as a remedy against the false verdicts given by members of the “assizes” in actions of novel disseisin, mort d’ancestor and the like. In these actions the defendant had always been compelled to accept trial by assize, and so it was but reasonable that he should have a means of punishing untruthful jurors. In writs of right, on the other hand, it was the demandant who might be compelled (at the tenant’s choice) to submit to the “grand assize”. Here, too, the writ of attaint could be brought.1 In other cases, however, both civil and criminal, it was possible to argue that the parties had voluntarily (in form at least) put themselves upon a jury, and that since they had chosen this form of trial they were not entitled to any relief if it turned out unsatisfactorily. Attaint was extended by statute first to one action and then to another, and finally in 1361 to every action tried by jury;2 but never to criminal trials. In London, local legislation wisely reduced the penalty upon attaint.3 But as for the common law, Queen Elizabeth’s Secretary of State, Sir Thomas Smith, wrote in 1565:4
“Attaints be verie seldome put in use, partly because the gentlemen will not meete to slaunder and deface the honest yeomen their neighbours, so that of a long time they had rather paie a mean fine than to appeare and make the enquest. And in the meane time they will intreat so much as in them lyeth the parties to come to some composition and agreement among themselves, as lightly they do, except either the corruption of the enquest be too evident, or the one partie is too obstinate and headstrong. And if the gentlemen do appeare, gladlyer they will confirme the first sentence, for the causes which I have saide, than go against it. But if the corruption be too much evident, they will not sticke to attaint