300
The Green Bag
How the jury fared know not. Few decrees of the court of the Star Chamber have been preserved. Its records were always carelessly kept; and "when the court was abolished in 1641 its name was so universally odious, that its records were not likely to be reverently handled." All that remains of the present case is the complaint and the jury's answer. These were lately published by the Somerset Record Society 3 with the pro ceedings in other Somerset Star Chamber cases of the reign of Henry VII and Henry VIII — treasure from the vast mine of English records which are grad ually being brought to the light. But simple as the story is, and broken off in the middle, it has features that repay a second glance. The reader's eye is first caught by the flagrant departures from the rules of evi dence as we know them. Bowe and Leve dealt freely in hearsay, and the Crown's chief witness, the justice of the peace, knew no single fact of his own knowledge. Wynscott's confession, too, was admitted without question, although extorted by the most barefaced promises. So far as the law of evidence is concerned, it might as well be the Dreyfus trial. Such a state of affairs might well aston ish one who cherished a belief in some golden age when "the original strict rules of evidence," as a great Chan cellor once called them, had not yet been "broken in upon" by qualifi cations or exceptions. This myth is curiously persistent; indeed we find the learned editor of these very Somerset records commenting on the "extraordi nary laxity in the admission of evi dence" in taking certain testimony under commission, and conjecturing that this was "probably due to the fact that the •The volume contains a very interesting intro duction by the editor. Miss Gladys Bradford, Fellow of Newnham College.
commissioners were laymen and not lawyers." But the simple fact is that the law of evidence is a relatively modern affair, and had no more than a rudimen tary existence in the sixteenth century. There could be no better proof of this than Wynscott's trial. Not only did the jury listen without surprise to all this hearsay, but the character of the presiding judge is a guarantee that the law was not violated. Sir James Hales, then a King's Serjeant, was soon afterwards a judge of the Common Pleas, and no judge in English history has left a brighter record of fidelity to con science and to the law. The rights of any prisoner who came before him were secure; and the mere fact that he ad mitted the evidence is enough to show that it was admissible. But listening to the hearsay was one thing and believing it another; and the jury's sturdy denial of its "efficacye" shows the temper of a race which was before long to mark by a rigid rule of law its insistence on getting its facts at first hand. Another oddity of the trial from a modern standpoint is the position of the jury. First they sit to hear evidence in the presence of the court, judging the testimony as a jury might today; then they retire to their juryroom and beyond the reach of judge and counsel hear from two of their own number facts which lead them to disregard everything they heard in open court. This marks a point midway in the evolution of the jury. Only a century or two before it had been a body of witnesses chosen for its knowledge of the facts; in little more than another century it was to be a body of judges permitted only to pass on the testimony of others. The attempt in the transition stage to fuse these oppo site functions meant odd and incon gruous situations, and one of these
