Page:Harvard Law Review Volume 5.djvu/393

377 THE JURT AND ITS DEVELOPMENT. 377 Not a few statutes also were passed, especially in the fourteenth century, giving actions or criminal process against jurymen receiv- ing bribes and taking part in embracery. Of other less obvious but extremely important modes of controlling the jury and their consequences, I have spoken before, 1 and need not now repeat. (h.) It will have been noticed, perhaps, that we find nothing of the attaint for a false verdict in criminal cases. At the beginning we saw that there was no assise, i. e., no statutory jury, in such cases and it seems to have been only in assises that the attaint was first allowed. The jury in criminal cases came in gradually, and by way of the consent of the accused, willing or forced, (ante, p. 265, et seg.) The doctrine, in all cases where one had con- sented, was that such party could not have the attaint, for this would be facere probationem suam nullam. (Bracton, 209^). The King, however, it was said, might have the attaint if the case went against him. Bracton (ibid.} tells us this, and four hundred years later we read it in Sir M. Hale. 2 But the silence of the books as regards actual cases of the exercise of this power in criminal cases may lead us to some doubt about it. The words of Bracton are satisfied by such cases as those relating to the King's revenues, and such as the qui tarn action of 1593 (ante, p. 376). As regards appeals, the common law mode of trial was by battle. It is, perhaps, reason enough for denying the attaint to the plain- tiff in an appeal, that historically the battle was a final thing, and here, as in the grand assise, whatever trial took the place of it par- took of this character. 3 One other remark may be made as regards 1 " Law and Fact in Jury Trials," 4 Har. Law Rev. 159-169. a P. C. ii. 310 (written 1660-1676), citing Fitz. Attaint, 60: s. c. ib. 64; but this is contemporaneously denied by Vaughan, C. J., in Bushel's Case (Vaughan, 146), in 1670; ing's, 10 H. IV. ... for which there is no warrant in law, though there is other specious authority against it." What Thirning, C.J. ( Vaughan's predecessor at the head of the Common Bench), is shortly reported to have said, in 1409, is this : "• One indicted of trespass and found guilty by the other inquest shall not have attaint nor a petition in the nature of attaint, because in a way (en matter) twenty-four have given the verdict (i.e., two juries), and the two verdicts agree; but if he be acquitted the King shallhave attaint by prerogative." This reason, as to two verdicts, was probably invented (although one sees it in the Year Books), and not the true historical reason. 8 And the attaint was not extended by statute to appeals. In 1347-8 (Lib. Ass. 102, 82), in an appeal of mayhem, "Thorpe [J.], said that the defendant should never have attaint in an appeal of mayhem, any more than in a felony; for the statute gives attaint only in a writ of trespass and a bill of trespass." Not only, then, was it true, as Britton said (f. 49 ), that, " for avoiding the perilous risk of battle, it is better to proceed by our writs of trespass, than by appeals," but one got the benefit of the attaint in that way.
 * For there is no case in all the law of such an attaint, nor opinion, but that of Thirn-