Page:Harvard Law Review Volume 5.djvu/391

375 THE JURT AND ITS DEVELOPMENT. 375 ages." If the verdict be in a personal action and under forty pounds, the qualifications of the attaint jury are less, and the fine shall be only five pounds. (/) The statutes of Henry VII. however did not repeal the old common-law attaint. "So that," says Blackstone (Com. iii. 404), "a man may now bring an attaint either upon the statute or at common law, at his election, and in both of them reverse the former judgment." Either way the punishment was very severe ; and it plainly appears that this, with other causes, was working fast to make the attaint wholly inoperative. I have referred to the " pyte and remorce of their concyencez " which kept the people of Swaffham, in 145 1, from bringing a writ of attaint ("Paston Letters," No. 151); and to a part of what Sir Thomas Smith (Com. of England, Book iii. c. 2) said in 1 565 ; " Attaints be very seldom put in use, partly because the gentlemen will not meet to slander and deface the honest yeo- men, their neighbors, so that of a long time they had rather pay a mean fine than to appear and make the inquest. And in the meantime they will intreat, so much as in them lyeth, the parties to come to some composition and agreement among themselves ; as lightly they do except either the corruption of the inquest be too evident, or the one party is too obstinate and headstrong. And, if the gentlemen do appear, gladlier they will confirm the, first sentence for the causes which I have said than go against it." A century later, in 1665 (1 Keble, 864, 6), Hyde, C.J., "seeing the attaint is now fruitless," declared with vehemence in a civil case that jurors ought to be fined. And after another century, Black- stone said (Com. iii. 404), " I have observed very few instances of an attaint in our books later than the sixteenth century." " The writ of attaint," said Lord Mansfield in 1757, 1 " is now a mere sound in every case." In 1825 (St. 6 Geo. IV. c. 50, s. 60) it was at last enacted that in all cases attaints should " henceforth cease, become void and be utterly abolished." A case or two will illustrate the working of the attaint in its decrepitude. In i542, 2 more evidence for the plaintiff in attaint had in fact been given to the attaint jury than was given below ; but this was held to be wrong, and Shelley, J. "admonished the jury to look to the evidence which was given to the first 1 Bright v. Eynon, 1 Burr. p. 393. 3 Rolfe v. Hampden, Dyer, 53^.