AFFORCEMENT OF THE ASSIZE - Old
English Law, Practice. An ancient practice in trials
by jury. It consisted in adding other jurors to the
panel of jurors, after the cause had been committed
to them, in case they could not agree in a verdict.
The author of Fleta (ubi sup) thus describes it. The
oath having been administered to the jury, the (prenotarius)
prothonotary, addressed them thus: 'You will say upon
the oath you have taken, whether such a one unjustly
and without judgment disseized such a one of his freehold
in such a ville within three years or not.'
The justices also repeat for the instruction of the
jurors the plaint of the plaintiff. The jurors then
retire and confer together. If the jurors differ among
themselves and cannot agree in one (sententiam) finding,
it will be in the discretion of the judges to afforce
the assize by others, provided there remain of the
jurors summoned many as the major party of the dissenting
jurors; or they may compel the same jurors to unanimity,
viz. by directing the sheriff to keep them safely
without, meat or drink until they agree.
The object of adding to the panel a number equal
to the major party of the dissenting jurors, was to
ensure a verdict by twelve of them, if the jurors
thus added to the panel should concur with the minor
party of the dissenting jurors. This practice of afforcing
the assize, was in reality a second trial of the cause,
and was abandoned, because the courts found it would
save delay and trouble by insisting upon unanimity.
The practice of confining jurors without meat and
drink in order to enforce unanimity, has in more modern
times also been abandoned and the more rational practice
adopted of discharging the jury and summoning a new
one for the trial of the cause, in cases where they
cannot agree. This expedient for enforcing unanimity
was probably introduced from the canon law, as we
find it was resorted to on the continent, in other
cases where the unanimity of a consultative or deliberative
body was deemed indispensable.
