Page:Harvard Law Review Volume 10.djvu/183

157 GROWTH OF TRIAL BY JURY IN ENGLAND. 1 5/ the twelve were duly chosen they were summoned by writ to appear in court, and testify on oath the rights of the parties. They took an oath that they would not give false evidence, nor knowingly con- ceal the truth ; and by knowlege, says Glanvill, was meant what they had seen or heard by trustworthy information, and this shows most clearly how entirely they were looked upon as mere witnesses, and how different the idea of their duties then was from what it is now. If they were all ignorant as to the rightful claimant, they tes- tified this in court, and then others were chosen who were acquainted with the facts in dispute. But if some did, and some did not know the facts, the latter only were removed, and others were summoned in their place, until twelve at least were found who knew and agreed upon the facts. If the jurors could not all agree, others were added to the number, until twelve at least agreed in favor of one side or the other. This process was called ** afforcing " the assise. The verdict of the jury was conclusive ; and there could be no subse- quent action brought upon the same claim, for it was a legal maxim that lites per magnam assisam domini Regis legitime deciscB nulla occasione rite resuscitantur imposterum. If the jurors were guilty of perjury, and were convicted or confessed their crime, they were deprived of all their personal property, and were imprisoned for a year at the least. They were declared to be infamous, and be- came incompetent to act as witnesses or compurgators in future {legem terr(Z amittunl)^ but were allowed to retain their freeholds. From this we see that this proceeding by assise was nothing more than the sworn testimony of a certain number of persons summoned that they might testify concerning matters of which they were cog- nizant. So entirely did the verdict of the recognitors proceed upon their own prejudgment of the disputed facts that they seem to have considered themselves at liberty to disregard the evidence which was offered in court, however clearly it might disprove the case they had come there to support. Although twelve was the most usual number of the jurors of assise for some years, it was not the unvarying one. When the institution was in its infancy, the number appears to have fluctuated accord- ing to convenience or local custom. In trial by jury, as permanently established both in civil and criminal cases. by Henry II., the function of the jury continued for a long time to be very different from that of the jury of the pres- ent day. The jurymen were still mere recognitors, giving their ver- dict solely on their own knowledge of the facts, or from tradition,