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He had gained his title during the Mexican War. As an express-rider for different American generals he had dodged the reatas of guerrilla parties who were lurking by water-holes and had outjockeyed swarthy horsemen in wild races across the flaming deserts of Sonora until he had come to know the science of their fighting as well as old Padre Jurata himself.
The same course of specification which has been illustrated from the statute-book ought also to be taking place in the growth of judicial decisions. That this should happen is in accordance with the past history of the law. It has been suggested already that in the days of the assize and jurata the court decided whether the facts constituted a ground of liability in all ordinary cases.
We may now take up the authorities. It will be remembered that the earlier precedents are of a date when the assize and jurata had not given place to the modern jury. These bodies spoke from their own knowledge to an issue defined by the writ, or to certain familiar questions of fact arising in the trial of a cause, but did not hear the whole case upon evidence adduced.
Discussions of legislative principle have been darkened by arguments on the limits between trespass and case, or on the scope of a general issue. In place of a theory of tort, we have a theory of trespass. And even within that narrower limit, precedents of the time of the assize and jurata have been applied without a thought of their connection with a long forgotten procedure.
One of these was Manuel Garcia, better known as Three-Fingered Jack, who had been ranging over the Sonoma valley for several years, occasionally varying the monotony of murder by tying a victim to a tree and flaying him alive. Joaquin Valenzuela was another, a middle-aged outlaw who had learned the finer arts of bushwhacking down in Mexico under Padre Jurata, the famous guerrilla chief.
SECTION III. The Oaths of Jurors. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it according to law. Spelman's Glossary, word Jurata. The institution of two juries, grand and petit, took place after the Norman Conquest. Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred,
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