Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/392

 378 ///. THE COLONIAL PERIOD Up to 1647, the pleadings seem to have been oral. By a law of that date ^ it was enacted that the declaration should be drawn up in writing and should be filed with the clerk of the court three days before the term. Contrary to the English custom, a record of evidence given in the courts seems to have been kept from the earliest times. In 1650, it was enacted ^ that on account of the inconvenience of taking verbal testimony in court, the clerk not being able to make a perfect record thereof and prevent all mistakes, the evidence should be presented in writing to the court, either attested before a magistrate or in court upon oath. This provision, thoroughly at variance with the common law, excited the adverse comment of professional lawyers.^ Coming now to the trial by jury, we find that this ancient and popular institution was in early use in Massachusetts, a jury having been empanelled a few months after Win- throp's arrival.* The system was, however, by no means unquestionably accepted, and seems to have had a very inse- cure tenure for a time. In 1642, a commission was ap- pointed to consider whether to retain or dismiss juries in the trial of causes;^ and it appears that juries were for a time abolished, for, in 1652, we find the following resolve " the law about juries is repealed and juries are in force again."® The mode of trial exhibits many interesting peculiarities. The province of judge and jury is quite correctly defined in an act of 1642, where the finding of matters of fact by the jury, instructions in law by the court, and the decision of matters of equity by the latter is provided for.' In 1657, the jury was permitted to present a special verdict.® But it seems that for a time the magistrates acquired a very con- siderable power of controlling the jury. Hutchinson says: strong grounds of suspicion, but not sufficient for convic- •Ibid., II, 211.
 * The jury sometimes gave their verdict, that there were
 * Massachusetts Colonial Records, II. 219.
 * Documents Relative to the Colonial History of New York, IV, 929.
 * Massachusetts Colonial Records, I. 77-78.
 * Massachusetts Colonial Records, II, 28.
 * Ibid., IV, 107. » Ibid., II, 21. • Ibid., Ill, 425.