Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 117

Bracton seems to be fairly satisfied with the jury as an institution, but other writers of almost the same date confirm the impression conveyed by the statute which we have just quoted. The Mirror of Justices, which was a vigorous criticism of the administration of the law written about 1290, contains a violent attack on the jury.³ In those parts of France also, where the jury for a time took root, there were protests against it as oppressive.⁴

From the reign of Edward I onwards the function of the jury was slowly being judicially defined; questions of law began to be separated from questions of fact,⁵ and gradually unanimity was required—although for some time there were doubts whether a verdict by eleven jurors was not sufficient, in which case the twelfth might be committed to prison.⁶

In 1468 Fortescue gives us a picture of jury trial which is to all intents and purposes in modern form. By this date he is able to regard the jury as a body of impartial men who come into court with an open mind; instead of finding the verdict out of their own knowledge of the events, the parties or their counsel in open court present their evidence to the jury, and witnesses are examined upon oath.¹ A century later, Sir Thomas Smith gives a vivid account of a jury trial and shows not only the examination but also the cross-examination of witnesses in the presence of the judge, the parties, their counsel and the jury.² Although this was becoming the practice, relics of the older order survived, and we have the perennial spectacle of trouble caused by casual reform which did not make a clean sweep of the past. Just as Fortescue harked back to an obsolete conception of the jury in saying that a man who volunteered to give evidence would be punished for maintenance (for he ought to have waited until the jury went to his house in the country to ask him what he knew³), so too, while Sir Thomas Smith was describing the jury as a purely judicial body, and statute was compelling the attendance of witnesses,⁴ jurors were still allowed to use their own knowledge in reaching a verdict,⁵ and might reach a verdict although no witnesses and no evidence had been produced.⁶