Page:Harvard Law Review Volume 10.djvu/184

158 158 HARVARD LAW REVIEW, and not upon evidence produced before them ; and this was the reason why they were always chosen from the hundred or vicinage in which the question arose. On the other hand, jurymen in the present day are triers of the issue ; they base their decision upon the evidence, whether oral or written, brought before them. But the ancient jurymen were not impanelled to examine into the cred- ibility of evidence ; the question was not discussed before them ; they, the jurymen, were the witnesses themselves, and the verdict was, in reality, the examination of these witnesses, who of their own knowledge gave their evidence concerning the facts in dispute to the best of their belief Trial by jury was, therefore, in the infancy of the institution, only a trial by witnesses; and jurymen were dis- tinguished from other witnesses only by customs which imposed upon them the obligations of an oath, and regulated their number, and which prescribed their rank and defined the territorial qualifi- cations whence they obtained their degree and influence in society. Thus we see that the jurors founded their verdict on their personal knowledge of the facts in dispute, without hearing the evidence of witnesses in court. But there was an exception in the case of deeds in which persons were named as witnessing the grant or other matter testified by the deed. And thus an important change was made, whereby the jury, ceasing to be witnesses themselves, gave their verdict upon the evidence brought before them at the trials. In the time of Glanvill, the usual mode of proving deeds the exe- cution of which was denied was by combat, in which one of the attesting witnesses was the champion of the plaintiff. If the name of no attesting witness was inserted in the deed, the combat had to be maintained by some other person, who had seen or known of the execution. Another mode of proof was by comparing the disputed deed with others admitted or proved to have been executed by the party ; but this, which would at the present day be a question for the jury, was determined then by the court. In reality, however, since jurymen were originally mere witnesses, there was no distinction of principle between them and the attest- ing witnesses, but gradually in the course of time a separation took place ; for although we find in the Year Books of the reign of Ed- ward III. the expression, " the witnesses were joined to the assize," a clear distinction is, notwithstanding, drawn between them. Thus, in a passage where these words occur, we are told that a witness was challenged because he was of kin to the plaintiff; but the objection was overruled, on the ground that '* the verdict could not be received