Page:Harvard Law Review Volume 5.djvu/332

316 3i6 HAR VARD LA W RE VIE W. as we see, always qualified and always undergoing more qualifica- tion. Great pains, to be sure, was taken in early times to require publicity as regards matters which might be the basis of legal right, and to fix rights by making them dependent on easily known facts ; the endowing at the church door, the requirement, in case of curtesy, of hearing the child cry within the four walls, the sale before witnesses, and all the law about hue and cry, are instances. It will be remembered, then, that a jury from any neighborhood was a body of persons far more likely to be informed than such a body would probably be to-day. 1 See, for instance, what was ex- pected of a defendant in 1306 (Y. B. 34 Edw. I. 122), who turned up at court a day late, and offered the excuse that he was hin- dered by a flood. He was first questioned as to where and when. He couldn't have got here any way, says the demandant's attorney. The tenant : " I travelled night and day. Mallore, J. : What did you do when you came to the water and could not pass ? Did you raise the hue and cry and menee ? 2 For otherwise the country would have no knowledge of your hindrance. The ten- ant : No, sir, for I did not know so much law ; but I cried out and halloed " {Sire, nay, qejeo ne savoy e mie tant de ley, mes jeo criay e bray ay). (i) The arrangements of the co.urts allowed of giving further information. As I have said, the explanatory, oral statements of the party or his counsel always contained the element of adding to what the jury already knew. As time went on this increased. We are to remember that the conception was that the jury in general knew the facts, and that they were able to judge of the truth of these conflicting statements. 3 In 1302 (Y. B. 30 Edw. I. 122-4), the jury gave their verdict; then Brumpton, J., says: "Tell us the damages. The assise: Ten shillings. Poleyn [counsel, breaking in] : There was a chest worth two marks, and other goods," etc. The judge warns the jury to be careful, for an attaint lies (since 1275) f° r damages, as well as the matter in chief. But the jury repeat their finding. We see this process well in a full and valuable case of 1465, a trial at 1 Palg. Com. i. 247-8. 2 And so Britton, f. 20, in speaking of the hue-and-cry: oveke la menee des corns ex de touches. Nichols translates : " with the company of horns and voices." 3 Isti [the jury] omnia sciunl que testes deponere norunt. Fortescue, De Laud. c. 26 (about 1470).