Page:Harvard Law Review Volume 5.djvu/400

384 384 HAR VARD LA W RE VIE W. dence upon which they go, that make one of the chief pillars upon which Vaughan's great judgment rests. This double character of the jury was no novelty. As we have seen, the jury had much evidence long before the parties could bring in their witnesses, and in so far as they acted on evidence they were always judges. This side of their function had been slowly growing, until now it was a great, conspicuous thing. But the old one had not gone ; that also continued a great and leading part of their function. Yet it had begun to diminish, and by the end of another century it would be mainly gone. (/.) As things stood after Bushel's Case, how should the jury be controlled ? The attaint was obsolete, and fining and imprison- ment were no longer possible. In no way could they be punished for giving verdicts against law or evidence. The courts found a remedy in their very ancient jurisdiction of granting new trials in case of misconduct. If a jury should accept food from one of the parties while they were out, or should take from him a paper not delivered to them in court, and should afterwards find for him, the court would refuse judgment, and grant a new venire. Why not, then, if the jury should go plainly counter to law, or should give an irrational, absurd, or clearly false verdict, do the same thing ? This was done. It was hazardous, for it was, in some cases, under, taking to revise the action of the jury in a region belonging peculiarly to them, and was going beyond anything that had formerly been done. Moreover, how should the court know that the jury's verdict was against evidence ? And how should they know what the law was until they knew what the facts were, since the law, as applicable to the case, was inextricably bound up with some definite supposition of fact ? Evidently the keen arguments of Vaughan's opinion were applicable also to the granting of new trials, for going against law and evidence. But the step had been taken at least as early as the first half of the seventeenth century. In order to make it effective it was necessary to accompany this practice by an endeavor to make the jury declare publicly their private knowledge about the cause. This effort prospered but slowly. The old function of the jury was too deeply ingrained to give way in any short time ; the judges long contented them- selves with advice, with laying it down as a moral duty that the jury should publicly declare what they knew. But while the jury's right to go upon their private knowledge was emphatically recog-