could not be taken from xi. But Kirketon told how Willoughby (J.) in trespass took the verdict of xi and sent the twelfth to prison and the attaint was sued against the xi, and also W. Thorpe (J.) in an assise of the xx year of the present king (1345) took verdict of xi. Thorpe (C. J.): “That is no example to us, for they were greatly reproved for this." And afterwards by assent of all the justices it was held that this was not a verdict, wherefore judgment was that the panel be quashed and null, and that he that was in prison be delivered. Note that the justices said that they ought to have carried the assise with them in a cart until they were agreed.

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FORTESCUE, DE LAUDIBUS LEGUM ANGLIAE, chaps. 25, 26 (about 1453). (Amos's translation.)

25. Whensoever the parties contending in the King's Courts are come to the issue of the Plea, upon the matter of fact, the justices forthwith, by virtue of the King's writ, write to the sheriff of the county, where the fact is supposed to be, that he would cause to come before them, at a certain day, by them appointed, twelve good and lawful men of the neighborhood, where the fact is supposed, who stand in no relation to either of the parties who are at issue, in order to enquire and know upon their oaths, if the fact be so as one of the parties alleges, or whether it be as the other contends it, with him. At which day the sheriff shall make return of the said writ before the same Justices, with a panel of the names of them whom he had summoned for that purpose. In case they appear, either party may challenge the array, and allege that the Sheriff had acted therein partially, and in favor of the other party, (viz.) by summoning such as are too much parties in the cause and not indifferent; which exception, if it be found to be true upon the oath of two men of the same panel pitched on by the Justices, the panel shall immediately be quashed and then the Justices shall write to the Coroners of the same County, to make a new panel; in case that likewise should be excepted against, and be made to appear to be corrupt and vicious, this panel also be quashed. Then the justices shall choose two clerks of the court, or others of the same county, who, sitting in the court, shall upon their oaths, make an indifferent panel, which shall be excepted to by neither of the parties; but being so impanelled and appearing in Court, either party may except against any particular person; as he may at all times, and in all cases, by alleging that the person so impanelled is of kin,

either by blood or affinity to the other party; or in some such particular interest, as he can not be deemed an indifferent person to pass between parties, of which sort of exceptions there is so much variety, as is impossible to shew in a small compass; if any one of the exceptions be made appear to the Court to be true and reasonable, then he against whom the exception is taken, shall not be sworn, but his name shall be struck out of the panel; in like manner shall be done with all the rest of the panel; until twelve be sworn so indifferent, as to the event of the cause, that neither of the parties can have reasonable matter of challenge against them: Out of these twelve, four at least, shall be Hundredors, dwelling in the Hundred where the Vill is situate, in which the fact disputed is supposed to be; and every one of the Jury shall have lands or revenues, for the term of his life, of the yearly value at least of twelve scutes. This method is observed in all actions, criminal, real or personal; except where in personal actions, the damages, or thing in demand, shall not exceed forty marks English money: because, in such like actions of small value, it is not necessary nor required that the Jurors should be able to expend so much; but they are required to have lands or revenues, to a competent value at the discretion of the Justices; otherwise they shall not be accepted; lest by reason of their meanness and poverty, they may be liable to be easily bribed, or suborned; and in case, after all exceptions taken, so many be struck out of the panel, that there does not remain a sufficient number to make up the jury, then it shall be given in charge to the Sheriff, by virtue of the King's writ, that he add more Jurors; which is usually and often done, that the enquiry of the truth upon the issue in question may not remain undecided, for want of Jurors. This is the form how Jurors, who enquire into the truth, ought to be returned, chosen and sworn in the King's Courts of Justice; it remains to enquire and explain, how they ought to be charged and informed as to their declaration of the truth of the issue before them.

26. Twelve good men and true men being sworn, as in the manner above related legally qualified, that is, having over and besides their movables, possessions in land sufficient (as was said) wherewith to maintain their rank and station; neither suspected by nor at variance with either of the parties; all of the neighborhood; there shall be read to them in English, by the court, the Record and nature of the plea, at length, which is depending between the parties;

and the issue thereupon shall be plainly laid before them concerning the truth of which those who are sworn are to certify the court; which done, each of the parties, by themselves or their Counsel, in presence of the court, shall declare and lay open to the Jury all and singular the matters and evidences whereby they think they may be able to inform the Court concerning the truth of the point in question; after which each of the parties has a liberty to produce before the Court all such witnesses as they please, or can get to appear on their behalf; who being charged upon their oaths, shall give in evidence all that they know concerning the truth of the fact, concerning which the parties are at issue: and, if necessity so require, the witnesses may be heard and examined apart, till they shall have deposed all that they have to give in evidence, so that what the one has declared shall not inform or induce another witness of the same side to give his evidence in the same words or to the very same effect. The whole of the evidence being gone through the Jurors shall confer together, at their pleasure, as they shall think most convenient, upon the truth of the issue before them; with as much deliberation and leisure as they can well desire, being all the while in the keeping of an officer of the Court, in a place assigned to them for that purpose, lest anyone should attempt by indirect methods to influence them as to their opinion, which they are to give in the court. Lastly, they are to return into the court and certify the Justices upon the truth of the issue so joined in the presence of the parties, (if they please to be present), particularly the person who is plaintiff in the cause; what the Jurors shall so certify in the Laws of England, is called the verdict. In pursuance of which verdict, the Justices shal! render and form their judgment. Notwithstanding if the party, against whom such verdict is obtained, complain that he is thereby aggrieved, he may sue out a writ of Attaint, both against the Jury and also against the party who obtained; in virtue of which, if it be found upon the oath of twenty-four men (returned in manner before observed, chosen and sworn in due form of law, who ought to have much better estates than those who were first returned and sworn), that those, who were of the original panel and sworn to try the fact, have given a verdict contrary to evidence, and their oath; every one of the first Jury shall be committed to the public. gaol, their goods shall be confiscated, their possessions seized into the king's hands, their habitations and houses shall be pulled down,

their wood-lands shall be felled, their meadows shall be plowed up and they themselves ever thenceforward be esteemed, in the eye of the law, infamous, and in no case whatsoever are they to be admitted to give evidence in any Court or Record; the party, who suffered in the former trial, shall be restored to everything they gave against him, through occasion of such their false verdict; and who then (though he should have no regard to conscience or honesty) being so charged upon his oath would not declare the truth from the bare apprehensions and shame of so heavy a punishment, and the very great infamy which attends a contrary behaviour? And if, perhaps, one or more among them should be so unthinking or daring as to prostitute their own character, yet the rest of the Jurors, probably would set a better value on their reputations than 'suffer either their good name or possessions to be destroyed and seized in such a manner; now, is not this method of coming at the truth better and more effectual than that way of proceeding, which the Civil Laws prescribe? No one's cause or right is, in this case, lost, either by death or failure of witnesses. The Jurors returned are well known, they are not inferior in condition; neither strangers, nor people of uncertain characters, whose circumstances or prejudices may be unknown. The witnesses [i. e., jurors] are of the neighborhood, able to live of themselves, of good reputation and unexceptionable characters, not brought before the Court by either of the parties, but chosen and returned by a proper officer, a worthy, disinterested and indifferent person, and obliged under a penalty to appear upon the trial. They are well acquainted with all the facts, which the evidences depose, and with their several characters. What need more of words? There is nothing omitted which can discover the truth of the case at issue, nothing which can in any respect be concealed from, or unknown to a Jury who are so appointed and returned, I say, as far as it is possible for the wit of man to devise. ANONYMOUS CASE, Year Book 21 and 22, Edw. I., 273 (1293). (Thayer's translation.)

Roubery (J. to the assise): How say you he is next heir? The assize: Because he was born and begotten of the same father and the same mother, and his father on his death-bed acknowledged that he was his son and heir. Roubery (J): You shall tell us in another way how he is next heir or be shut up without meat or drink till tomorrow morning. And then they said that he was born before the ceremony, but after the betrothal.

(Vaughan, 135.)

issued out of this

BUSHEL'S CASE, COMMON PLEAS, 1670. The King's writ of Habeas Corpus court, directed to the then sheriffs of London, to have the body of Edward Bushel, by them detained in prison, together with the day and cause of his caption and detention, on Friday then next following, before this court, to do and receive as the court shall consider." [Vaughan, C. J. delivered the opinion of the, court from which the following extracts are taken:]

In the present case it is returned that the prisoner, being juryman, among others charged at the session court at the oid Baily, to try the issue between the King and Penn and Mead, upon the indictment for assembling unlawfully and tumultuously, did against the full and manifest evidence openly given in court, acquit the prisoners indicted in contempt of the King, etc.

The verdict of a jury, and evidence of a witness are very different things, in the truth and falsehood of them. A witness swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to be the fact enquired after; which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases considered by him, infers to be the law in the question before him.

The judge cannot know the fact possibly, but from the evidence which the jury have, and consequently he cannot know the matter of fact, nor punish the jury for going against their evidence, when he cannot know what their evidence is. It is true, if the jury were to have no other evidence for the fact, but what is deposed in court, the judge might know their evidence, and the fact from it, equally as they, and so direct what the law were in the case; though even when the judge and jury might honestly differ in the result from the evidence, as well as two judges may, which often happens.

But the evidence which the jury have of the fact is much other than that; for, being returned of the vicinage, whence the cause of action ariseth, the law supposeth them thence to have sufficient knowledge to try the matter in issue (and so they must) though no evidence were given on either side in court, but to this evidence the judge is stranger. 2. They may have evidence from their own personal knowledge, by which they may be assured, and some