Page:Harvard Law Review Volume 5.djvu/334

318 3 1 8 HAR VARD LA W RE VIE W. (/) But not yet have I spoken of the method of informing the jury by witnesses testifying publicly in court. Always, as we see, there had been, in some cases, a mingling of the jury with witnesses in their private deliberations. Why did they not have more help of this sort ? It is evident that sending out witnesses with the jury to testify to them, if they were such as either party should choose to call, might readily be abused ; it would lend itself easily to irregular and corrupting influences. If such witnesses were to be used at all, one would guess that their communica- tions would come in like those made by the respective parties or counsel in their addresses to the jury; they would have the character of statements confirmatory of these and supplement- ary, and like them would be publicly made in court. And that seems to have been the course of the development. I know of no reason to suppose that a party's casual witnesses 1 were originally sent out with the jury. There was legal process for the document-witness and others of the preconstituted class, but none for the other. How and when did this great change come about ? No one as yet can tell with exactness. Let me mention a few things that may help in tracing the matter. In 1354 we find among the Parliament Rolls a striking petition, of which an explanation may perhaps be found in a case of the year 1353 (Lib. Ass. 134, 12). Several persons, including one of the' justices, had been accused of conspiracy in indicting J. as a felon, who was acquitted. H. answered that he was a justice at the sessions, and bound to inform the jury for the king to the best of his ability. Four others said that they were indictors. Another one said that when the in- dicting jurors made their oath (quand les jurors sur Vendite- ment fir. servient) he was sworn to inform them. This one was driven to plead not guilty ; and all the others did the same. The king's counsel only wished a verdict as to two, and these (both of the last class) were found guilty. The justice seems to have pleaded nolo contendere, and the indictors were held excused. It may well have been this and like cases that led to a petition 2 to the king and council, in 1354, reciting the false and malicious charging of people with conspiracy and maintenance, and irregular 1 To use Bentham's convenient phrase for the ordinary witness as distinguished from the " preappointed " one. 2 ParL Rolls, ii. 259, col. 2.