AFFORCE

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AFFORCE

AFFORCE, AFFORCEMENT OF THE ASSIZE, Old English law, practice. An ancient practice in trials by jury, which is explained by Bracton, (fo. 185, b. 292a) and by the author of Fleta, lib. 4, cap. 9, Sec. 2. It consisted inadding other jurors to the panel of jurors, after the cause had beencommitted to them, in case they could not agree in a verdict. The author ofFleta (ubi sup) thus describes it. The oath having been administered to thejury, the (prenotarius) prothonotary, addressed them thus: "You will sayupon the oath you have taken, whether such a one unjustly and withoutjudgment disseised such a one of his freehold in such a ville within threeyears or not." The justices also repeat for the instruction of, the jurorsthe plaint of the plaintiff, &c. The jurors then retire and confer together,&c. If the jurors differ among themselves and cannot agree in one(sententiam) finding, it will be in the discretion of the judges, &c; toafforce the assize by others, provided there remain of the jurors summonedmany as the major party of the dissenting jurors; or they may compel thesame jurors to unanimity, viz. by directing the sheriff to keep them safelywithout, meat or drink until they agree. The object of adding to the panel anumber equal to the major party of the dissenting jurors, was to ensure averdict by twelve of them, if the jurors thus added to the panel shouldconcur with the minor party of the dissenting jurors. This practice ofafforcing the assize, was in reality a second trial of the cause, and wasabandoned, because the courts found it would save delay and trouble byinsisting upon unanimity. The practice of confining jurors without meat anddrink in order to enforce unanimity, has in more modern times also beenabandoned and the more rational practice adopted of discharging the jury andsummoning a new one for the trial of the cause, in cases where they cannotagree. This expedient for enforcing unanimity was probably introduced fromthe canon law, as we find it was resorted to on the continent, in othercases where the unanimity of a consultative or deliberative body was deemedindispensable. See Barring. on Stats. 19, 20; 1, Fournel, Hist. des Avocats,28, note.

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