Page:Harvard Law Review Volume 5.djvu/403

387 THE JURY AND ITS DEVELOPMENT. 387 at a trial of the same cause about twenty years past, in the ex- chequer, and heard there great evidence," asked whether he ought to inform the rest of the jury privately of this, or conceal it, or declare it in open court. The Court ordered him to make public declaration of it. He did so, and upon merely his juryman's oath. Half a century later, in 1702, 1 the same duty is reported as having been laid down in general terms for the whole jury: "If a jury give a verdict on their own knowledge, they ought to tell the Court so, that they may be sworn as witnesses. And the fair way is to tell the Court before they are sworn that they have evidence to give." We have now traced the old attaint to its end, and have brought out its modern substitute. During the last two or three cen- turies many interesting things grew out of the changes in the jury. The statutes of the sixteenth and seventeenth centuries, requiring two accusers and two witnesses in certain cases, were a limitation upon the power of the jury ; before, they need have no witnesses at all. The process of laying down rules of presumption and fix- ing upon evidence a conclusive quality, — always an incident of judicature, — was yet immensely stimulated by the jury. A legis- lative illustration of this is seen in the " Statute of Stabbing " ( 1 Jac. 1, c. 8), in 1603, fixing upon certain acts the quality of malice aforethought, " although it cannot be proved ; " a law made, as the judges declared in 1666, in Lord Morley's Case (Kelyng, 55), "to prevent the inconveniences of juries, who were apt to believe that to be a provocation to extenuate a murder which in law is not." There is reason to surmise that a leading motive in the enactment of that singular and very un-English piece of legislation, the Statute of Frauds, was found in the un- certainty that hung over everything at a period when the law of proof was so unsettled. It will be remembered that it was then a very critical time ; that the attaint as an operative thing had van- ished, while the law of new trials was in its tender infancy, and the rules of our present law of evidence but little developed. 2 But the greatest and most characteristic offshoot of the jury was that body of excluding rules which chiefly constitutes the English "Law of Evidence." If we imagine what would have 1 Powys v. Gould, 7 Mod. 1, s. c. anonymous, Salk. 405, Holt, 404. 2 See Harv. Law Rev. iv. 91.