Page:Harvard Law Review Volume 5.djvu/392

376 3 ye HAR VARD LA W RE VIE W. jury upon which they passed ; for if they had pregnant and manifest proof and evidence to confirm the matter, although that were in fact false and the truth of the matter was contrary, still they ought not to regard that, but ought to weigh in their consciences what themselves would have done upon the same strong evidence as the first jury did; for homines sunt mendaces et non angeli," etc. In I593»'the attaint jury gave a special verdict. 2 The defendant in a qui tarn action had been charged with buying cattle out of market, viz., of one Pearepoint. On a plea of not guilty the jury below had found for the defendant. On attaint, the twenty-four in their special verdict set forth that the petit jury had the evidence of one Whitworth that the defendant bought of him, out of market, the cattle of Pearepoint. The at- taint jury finds that the cattle were really bought of Whitworth as Whitworth's cattle ; but this was not given in evidence, and they ask the Court's judgment as to the law. The Court holds against the attaint ; since the jury finds that the evidence below was false in part, the first jury might properly enough disbelieve it all. {g.) Of course it must be remembered that there were other grounds for punishing juries, and other grounds for giving new trials. The Court always held towards the jury a relation of con- trol, and the books are full of traces of ordinary discipline. In an early case 3 the jury appeared to be answering subtly, so as to con- ceal something. The judge calls for a better answer, or he will shut them up over night. If the jurors took out food with them, or violated any of the ordinary rules, they were always subject to punishment ; and in such cases new trials were granted. 4 1 Queen v. Ingersall, Cro. El. 309. 2 A proceeding formerly said not to be good, but sustained in 1561 ; Burnham v. Hey- man, Dyer, 173. 8 In 1293 (Y. B. 21 and 22 Edw, I. 273) in an assise of mortdancestor, a tenant set up the existence of an older heir, William, and an alienation by him. The jury found that this William entered as oldest son and heir, and as next heir. " Roubury [J. ] How say you that he is next heir? The Assise. Because he was born and begotten of the same father and the same mother, and his father on his death-bed acknowledged that he was his son and his heir. Roubury [J.] You shall tell us in another fashion how he is next heir, or stay shut up, without food and drink, till to-morrow morning. And then they said that he was born before the ceremony [of marriage] and after the betrothal." This, at common law, made him a bastard. IV. and Henry VII. of judgments being stayed (even after a trial at bar), and new venires awarded, because the jury had eat and drank without consent of the Judge, and because the plaintiff had privately given a paper to a juryman before he was sworn." BL Com. iii. 387-8).
 * "There are instances in the Year Books of the reigns of Edward III. Henry