164 The Period of Constitution Making
than witnesses and that the justices were engaged in ob-
taining and weighing testimony. A good many details
might be collected from the early practice in favour of
such a view, and if the judges had at that time been a
little more inclined to deal with the jurors separately,
questioning them solely on the facts of the case and keep-
ing to themselves all discretionary functions, there would
have been an inquisition in England instead of a jury.
But though it may be granted that the early English
jury was nine-tenths witness, the one-tenth something
else was very important, for it was this which developed.
It is the purpose here to inquire what this element was
and why it persisted and grew.I
Except in the four petty assizes, where it was an original
and necessary part of the procedure, the jury was at first
regarded merely as one among other methods of proof.
If the litigants chose it, they must abide by the result;
and the court would no more have thought of inquiring
into the action of the jury than of questioning or criticising
compurgation.2 The thought of the judges was to reach
a conclusion by some of the known methods of proof
rather than to inquire into processes. They deemed the
jury in some respects preferable to the older proofs, but
the habit of thought was still too much dominated by the
immemorial practice of appealing to supernatural powers
in judical matters for rational distinctions to weigh
heavily. The older proofs furnished speedy and une-
quivocal answers; the jury was expected to do the same.
It would have been impious to question how God reached
the conclusions which he revealed in the trial by battle
1 The discussion of this subject is based upon the admirable account in
P. and M., ii., 622-627.
2 But after a suit was ended the defeated party might proceed against the
jury through what was known as an attaint. An '' attaint jury'T of twenty-
four passed on the preceding verdict, and if they found it false it was
rescinded and the first jury severely punished, usually by fine. Such pro-
ceedings were expensive, but were increasingly common in the thirteenth
century and show that juries were still regarded as primarily witnesses.
Attaint was used throughout the middle ages, or until juries were quite
distinctly judges of fact furnished by witnesses in court.