Page:Harvard Law Review Volume 5.djvu/382

366 $66 **AR VARD LA W RE VIE W. In time courts adopted the method of granting new trials when the verdict was unreasonable, without punishing the jurors. A step had then been taken which made it important that the court should know, so far as possible, all that the jury knew ; and accordingly the old doctrine of their going on private knowledge began more and more to give way. The jury were told that if any of them knew anything relating to the case, they ought to state it pub- licly in court. This lay long in the shape of a moral duty of the jurors, not enforceable; but after a time it was enforced, and the court assumed that, in general, nothing was known to the jury ex- cept what was publicly stated in court, adding to this (under the notion of judicial notice) what was known to everybody. This brought matters down to the state under which we are now living. The jury now had a duty to know nothing but what was publicly known and stated in court. They became merely judges upon evidence. (a.) But let us turn back, and trace the working out of these results. For centuries the great check upon the jury was the attaint, i.e., a proceeding in which the original parties and also the first jury were parties, and where a larger jury, made up of knights or other more considerable persons than the first, passed again on the same issue. If they found contrary to the first find- ing, then the first jury was convicted of perjury and heavily pun- ished ; and the first judgment was reversed. We see in one of our earliest cases 1 the punishment of a jury who, by confession of their leader and others, were adjudged to have perjured themselves, and also a reversal of the first judgment. It is probable that this con- sequence of punishment generally attended the proof of "perjury" in the use of the inquisition. But it is not probable that in the older law a reversal of the judgment would always follow. In Glanville there is no mention of the attaint, even as regards the possessory assises, 2 yet he says conspicuously that in the ordinance establishing the great assise, provision is made {eleganter inserta) for the punishment of those who swear falsely. 3 But there seems iGundulf v. Pichot (1072- 1082), Big. PI. A. N. 34; s. C. ante, p. 253. 2 Brunner (Schw. 422, note) remarks this. 8 Pena antem in hac assisa tenure jurantium ordinaria est et ipsi regali institutioni eleganter inserta. Glanv. II. 19. He goes on to say that if the jurors are convicted of perjury (perjurasse) or confess, they lose all chattels and movables to the king, are im- prisoned for at least a year, and that henceforth, losing their legem, they shall in- cur perpetual infamy. The point of the eleganter inserta seems to be intimated when it