Page:Harvard Law Review Volume 5.djvu/380

364 364 HAR YARD LA W RE VIE W. jury." "Albeit by the common law trials of matters of fact are by the verdict of twelve men, etc., and deposition of witnesses is but evidence to them, yet, for that most commonly juries are led by deposition of witnesses," etc. For an instance of a trial by witnesses, expressly contrasted with trial by twelve men, see the St. 5 & 6 Edw. VI. c. 4, s. 3, where, inter alia, one who should strike another with a weapon in a church or churchyard should lose an ear, or if he "have none eares," be branded, — if convicted by the verdict of twelve men, or by his own confession, or by two lawful witnesses. 4. As to the mode of controlling the jury and correcting their errors. We have seen how the ways of adding to their knowledge were gradually increased, until at last witnesses called in by the parties were regularly admitted to testify publicly to these other witnesses, summoned by the viscount, whom we call the jury. This mounting witnesses upon witnesses was a remarkable result and teemed with great consequences. The contrast between the functions of these two classes became always greater and more marked. The peculiar function of the jury — as being triers — grew to be their chief, and finally, as centuries passed, their only one ; while that of the other witnesses was more and more defined, refined upon, and hedged about with rules. It is surprising to see how slowly these results came about. The attaint, which long held its place as the only way of remedying a false verdict, proceeded on the theory that the first jury had wilfully falsified, and so was punishable. An independent, original knowledge of the facts was attributed to the jury, and not an inferential and reasoned knowledge. So long as this theory was true and was really a controlling feature of a trial by jury, witnesses must needs play a very subordinate part. They were not necessary in any case. When they appeared the jury could disregard all they said ; and should, if it were not accordant with what they knew. Gradually it was recognized that while the jury might not be bound by the testimony, yet they had a right to believe it, and that they were the only ones to judge of its credibility. It became, then, the chief question whether they had such evidence before them as justified their verdict. If they had, they were not punishable ; if they had not, why punish