tales de circumstantibus and jury and history of the jury and veniremen and tapenade and tandoor

There are four remaining "t" words in these pages which I need to mention: talesman, tandoor, tapenade and tarlatan. I may never write about the last three, since they don't have really interesting stories behind them as does the talesman [though tandoori chicken, or chicken cooked in a tandoor oven, tastes better by far than anything I can say about talesmen]. Suffice it to say that tapenade is a Provencal dish, first attested in English in 1952, usually served as an hors d' oeuvre, made principallly from black olives, capers and anchovies and tarlatan is a thin fabric, originally imported from the East Indies used now especially in wedding dresses. Let's devote this page, then, to talesman.

Getting Our Bearings with Talesman

The Collegiate's definition is unusually full:

"a person added to a jury usually from among bystanders to make up a deficiency in the available number of jurors" or "a member of a large pool of persons called for jury duty from which jurors are selected."

If this was all we knew, and it is more than most people know, we would be under the misleading impression that we understood something. Well, we have words on the page, and we understand each of the words, but the definition masks as much as it reveals. It is not the fault of the definition; indeed, the definition is correct, but the definition is trying to point to a slice of the history of a common law institution without providing the slightest context for that understanding. Is a definition useful if it doesn't lead to understanding? Well, I suppose you simply have to look at it as the first step in going where you want to go.

The OED is much more eloquent, pointing us from talesman to tales, the jury so impanelled, and mentioning also the verbs with which the noun tales appeared historically: "to pray, grant or award a tales." But still we don't know precisely what one is or why there was such a practice of impanneling those for jury duty who are simply "standing around" (the full Latin phrase to describe these additional jurors is tales de circumstantibus--a tales [lit. "such men" as are standing around].

History Helps Us

A brief overview of aspects of the history of the jury shows us why permitting a tales was a necessary but controversial aspect of the common law. I found a 1983 Columbia Law Review article by Clinton W. Francis, now a professor of law at Northwestern University, on "The Structure of Judicial Administration," focusing primarily on the 17th century, which provides me with much of the following.

While we might think today that jury service is inconvenient, potentially taking us away from our work, family and lives for a few days, in the Middle Ages/early Modern period it was onerous indeed. Men were forced to serve repeatedly on panels and often were subject to pressures from prosecutor or crown to reach a desired verdict. They also faced the danger of an allegation of impropriety that could lead to a charge of attaint.

A Digression on Attaint

The word attaint had a non-legal meaning derived from the Latin word meaning a "touching" in endeavors such as tilting or in veterinary surgery, but its original signification, going back at least to Bracton in the 13th century, was either a legal process instituted for reversing a false verdict and/or the convicting of jurors for the false verdict. The trial of the jurors would be made by a grand jury of 24 members (again this number was attested as early as Bracton, because the common law believed a conviction of a jury should only happen from a panel twice the size of the original one). Blackstone, the 18th century writer on the common law, detailed eight punishments which were visited on jury members who had reached an erroneous verdict:

"1. That they should lose their liberam legem, and become for ever infamous. 2. That they should forfeit all their goods and chattels. 3. That their lands and tenements should be seised into the king's hands. 4. That their wives and children should be thrown down. 6. That their trees should be rooted up. 7. That their meadows should be ploughed. 8. That their bodies should be cast into gaol" (Commentaries 4.10).

Even if we don't know the full scope of all of these terms, we get the impression that they are pretty severe sanctions. It wasn't until the end of the 15th century in criminal trials and a century or two later in civil trials that an erroneous jury verdict would lead to a new trial rather than the punishment of the veniremen (except in cases of what was known as embracery, which I am not going to get into here!).

Conclusion

I see I am going to need another essay on this, because we still haven't gotten to the meat of the matter--when and why these tales de circumstantibus were instituted. Let's turn to that now.

1915