Page:Harvard Law Review Volume 5.djvu/381

365 THE JURT AND ITS DEVELOPMENT. 365 them for what perhaps they did not know ? And so the attaint jury was not allowed to have more or other evidence making against the first jury's verdict than what that jury had had before them. But if they might believe what was thus testified to them it was equally true that they might disbelieve it, or a part of it ; and an attainting jury must find it hard to say that it was a wilful falsehood, to go against amass of evidence which admitted oi being thought only partly true, or of being wholly disbelieved. The attaint grew unworkable. For one reason or another people were unwilling to resort to it, and jurors of attaint were unwilling to find the former jury guilty. In 145 1 the inhabitants of Swaffham asked Parliament to annul a verdict and judgment in novel dis- seisin, alleging perjury in the jurors by reason of " menaces," and setting forth that the said inhabitants, for pity and remorse of their consciences, were loth to use a writ of attaint, since "the said assise durst not, for dread of the horrible menaces of the said Sir Thomas, otherwise do but be foresworn in giving their verdict in the same assise." ' In 1565 Sir Thomas Smith 2 tells us : " Attaints be very seldom put in use, partly because the gentle- men will not meet to slander and deface the honest yeomen, their neighbors ; so that of a long time they had rather pay a mean fine than to appear and make enquest. . . . And if the gentlemen do appear, gladlier they will confirm the first sentence, for the cause which I have said, than go against it." The Star Chamber was resorted to for the purpose of supplying the defects of the attaint and securing punishment for jurors who gave false or corrupt verdicts. The judges of the common law courts went a certain way in the same direction of fining and imprisoning jurors who went against the evidence. Of this I shall speak later. It is enough here to quote what Hudson says in his Treatise on the Star Chamber, written in the early part of the seventeenth century. 3 He is claiming for this court a very ancient jurisdiction; and after speaking of Henry IV. he adds: "When a corrupt jury had given an injurious verdict, if there had been no remedy but to attaint them by another jury, the wronged party would have had small remedy, as it is manifested by common experience, no jury having for many years attainted a former." 1 Draft of a petition from the town Swaffham, " Paston Letters" (Gairdner's ed.), No. 151. 2 Com. of Engl., Bk. 3 c. 2. 8 Collectanea Juridica, ii. Hudson was not living in 1635.