Page:Harvard Law Review Volume 5.djvu/389

373 THE JURT AND ITS DEVELOPMENT. 373 delays in writs of attaints. When the grand jury appears and is ready to pass, a tenant or defendant or one of the petty jury pleads false pleas not triable by the grand jury, and so delays pro- ceedings until this be tried. When this is settled for the plaintiff, another pleads a like false plea since the last continuance ; and so each of the defendants, tenants, or jurors, one after another, may plead and delay the grand jury ; and, although all be false and feigned, the common law has no penalty. This has caused great vexation and travail to the grand juries, and plaintiffs have been so impoverished that they could not pursue their cases, and jurors are more emboldened to swear falsely. It is, therefore, ordained that plaintiffs may recover [against] all such tenants, jurors, and defendants the damages and costs thus suffered. The other statute, after reciting that by the law of the realm trials in matters of life and death and as to all sorts of ques- tions, as regards matters of fact (touchant matters en fait), are likely to be "by the oaths of inquests of twelve men ; " that great, fearless, and shameless perjury horribly continues and increases daily among common jurors of the realm ; that in proportion as men are more sufficient in land, the less likely they are to be cor- rupted ; that in every attaint there must be thirteen defendants at least, unless some die, each of whom may have separate answer triable in any county, and the attaint may be delayed until all these are tried, and so delays to the plaintiffs in the said attaints for ten years par commune estimation, — goes on to provide for an in- crease of the property qualification of the attaint jurors, and that an adverse decision in any "foreign plea," [i.e., one triable else- where than the issue in attaint] shall give the whole attaint against the one pleading it. But not only was the machinery of the attaint jury cumbrous and well adapted to delays and frauds, but the attaint jurors were unwilling to find the petit jurors guilty, the punishment was so harsh. Now that witnesses were produced before a jury and they were expected to judge of the truth or falsity of the wit- nesses, things had changed. The essential nature of their own function as being something different from that- of these new wit- nesses, something more than being mere testifiers to what they had seen and heard, as being always in a degree judges, drawing conclusions from what their senses presented and what others testified to them, — all this must have rapidly grown plain ; and