Page:Harvard Law Review Volume 5.djvu/329

313 THE JURY AND ITS DEVELOPMENT. 313 him, so that he died. J. has been charged by the jury of accusation with retaining his horse, although he had thus become a deodand, and with having buried W. without calling in the coroner. He denies both charges and puts himself on the patria. The judge, turning, probably, to the same jury that had accused the defendant, replies : " Ecce hie bona patria de duodecim. Read the names and save him every sufficient challenge." Some challenges were made, que triebantur per residuos de duodecim. The judge proceeds to charge the jury thus : " If W. died from the kick of the horse, the horse would be deodand. If not it would be John's. If the king should lose through you what rightly belongs to him, you would be perjured. If you should take away from John what is his, you would commit a mortal sin. Therefore, by the oath you have made, disclose and tell us the truth, whether the said W. died of the horse's kick or not. If you find that he did, tell us in whose hands is the deodand horse and what he is worth ; and whether the said W. was buried without a view of the coroner." It will be noticed that the charge had the effect not merely to bring clearly to the jury's mind what they were to pass upon, but also to prevent their wandering away into irrelevant matters — matters not in issue. Exactly what might have been admitted by the pleadings, or what was the scope of the issue, it was not always easy to say. It was for the judges to keep the jury within proper limits. "Good people," said Bereford, J., in Y. B. 34 Edw. I. 166 (1306), "you have only to inquire whether any of the predecessors of the aforesaid Prior presented the last person," etc. 1 (h) We find early in the Year Books the beginning of a dis- cussion which is forever going on in the fifteenth century, as to how far one can go in his pleading ; what should be pleaded, and what is merely "evidence" of the facts to be pleaded ; what shall be entered on the record, and what shall be left to be " said in evidence to the jury." We say nowadays that "facts " are to be pleaded, and not the evidence of facts. That was early said, but it was very far indeed from being rigidly enforced. Often we find the courts allowing one to set forth his case fully, " for fear of the lay- men," i. e., in order that the jury might not pass upon questions of law, and might not go wrong through any misapprehension of the 1 And so, in Y. B. 30 Edw. I. 132, Brumpton, J., after reciting the process: "Good people the points of the assise are agreed on. You have only to say," etc.