Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 116

From this it will be seen that in its origin the jury is of a representative character; the basis of its composition in the early days, when its structure was determined by the vill or the hundred, was clearly the intention to make it representative of the community. Its object was either to present the suspicions of the countryside, or, in the case of a petty jury, to express its final opinion. Consequently, the jury as a whole must come from the county concerned, and some at least of them from the hundred where the fact lay.⁶ In civil cases these requirements were much modified by legislation,⁷ and finally abolished in 1705.⁸ They applied also to criminal cases, but by Lord Hale’s time it was no longer the practice to challenge a jury for lack of hundredors,¹ as long as it came from the proper county.

The county requirement was less tractable, for procedure could only be conducted through a sheriff. Problems abounded, moreover. By some ancient oversight there were roads, bays, creeks and harbours in England, as late as 1816,² which were not in any county; felonies committed there (like those on the high seas) could not be tried by jury until 1536 when a statute gave the crown power to appoint a county by commission.³ Further, in 1549 a statute explained that if A wounded B in one county, and B died in another, then A could not be tried, because a jury of the first county will know nothing of the death, and the jury of the second county will know nothing of the wounding.⁴ Likewise, a felon in one county may be hanged, but his accessory who received him in another cannot be tried because a jury there will not know of the conviction.⁵

The representative idea of the jury was wearing very thin now that some of its consequences were being abrogated by the acts of 1536, 1549 and others.⁶ Survivals lasted into the nineteenth century: pickpockets in stage-coaches could be tried in any county along the route only after 1826,⁷ and the completely rational view of jury trial finally triumphed in 1856 when a trial could be moved to the Central Criminal Court if it was feared that a local jury would not be impartial.⁸ Its character was certainly not that of witnesses;⁹ it was indeed expected to speak of its own knowledge, but that does not necessarily mean that its knowledge must be as strictly first-hand as that of a modern witness. There is no trace of a requirement that jurymen should themselves have witnessed the events in question. Indeed, that would often be impossible, especially in property cases—such as occurred in 1222 when a jury had to find the terms of a verbal lease made in 1170.¹⁰ Bracton has introduced some confusion at this point. He was writing a very big book and had a tendency to fill in the gaps of native English law from other sources, and so there is always difficulty in distinguishing between Bracton as the expositor of contemporary practice and Bracton the idealiser and scholar of foreign learning. In one passage¹ he gives us a list of challenges which can be used against jurymen, and seems to have imported the exceptions against witnesses which were available in canon law, and used them as challenges against jurors.² However this may be, he is surely describing contemporary practice faithfully when he shows us how the justices will help the jury to express an uncertain verdict in more satisfactory form, adding:

“If the jurors are altogether ignorant about the fact and know nothing concerning the truth, let there be associated with them others who do know the truth. But if even thus the truth cannot be known, then it will be requisite to speak from belief and conscience at least.”

Clearly, therefore, the jury spoke as representative of the countryside rather than as a body of witnesses.