Page:Harvard Law Review Volume 5.djvu/385

369 THE JURY AND ITS DEVELOPMENT. 369 The origin of the attaint in the possessory recognitions, is attributed by Brunner, reasonably enough, to the mere favor of the king (Schw. 372), and he refers to a case of 1347 or 1348, 1 in which a disappointed suitor offers the king twenty shillings for an attaint jury. Other early cases point the same way. The earliest one, so far as I observe, was in 1202 (Seld. Soc. Pub. iii., case 216), and there the defeated party offers the king forty shillings for a jury of twenty-four knights. In the same year {id., case 224), a like offer of twenty shillings is made. 2 {b.) Not merely were the jurors punished for a false verdict, and this and any judgment upon it reversed : the judges also were punished for errors in law and their judgments reversed. The judges, according to the very old law, had to defend their judgment by the duel. The same ideas survive in our early records. In 1231 (Br. N. B. ii. 564), certain special justices who had taken an assise of mortdancestor between Oliver as demand- ant and William, a prior, as tenant, were summoned at the com- plaint of the tenant to record the proceedings, and the jurors to certify their verdict. The justices say that the jury found that Roger, a brother of Oliver, died seised of the land, and that Oliver was next heir, and so judgment was given for Oliver. The jurors were asked if this was the record. While admitting it in part, they said that Oliver had an older brother, Ralph, who was living, and therefore they had doubted whether Oliver was the nearest heir, and they set forth a former litigation as explaining their doubt. Oliver was then asked if this were so, and did not deny it. The justices, however, did deny it at first ; but after- wards they admitted that the jurors said that Oliver had an older brother. Now, under these circumstances, according to a doc- trine set forth by Glanville (vii, c. 1), while the younger 1 PI. Ah. 124, Cul* 2; cited by him from Biener, Eng. Geschw. i. 72. 3 An attaint jury in 1 203 is found in the same volume, case 150. Other early cases are in the Note Book; and several later ones in the Placitorum Abbreviatio, of various dates, between 1247 an d 1312. In some the first jury is vindicated; in others they are convicted and judgment given reversing the former verdict. In the Revised Glan- ville, alluded to by Professor Maitland in Seld. Soc. Pub. iv. 6, and more fully explained by him in an article which is soon to appear in this Review, occurs a passage which I venture to extract. A Writ of Attaint is given, and then the writer (speaking a little later than Bracton, and not far, as it is supposed, from the year 1265) says that this writ is never given without pay, unless, by favor, to a poor person. ( Et sciendum quod i stud pre • dictum, breue nunquam a Domino rege vel ejus justiciariis alicui conceditur sine dono, nisi de grada, si sit pauper.}