Whether this was done elsewhere, and for other occasions, is not known. Wealthy litigants certainly seem to have felt it proper (perhaps even prudent) to contribute fairly handsomely to the expenses of jurors—and jurors had themselves to pay fees in an eyre.2 Surviving household accounts show that litigants incurred considerable expense in the matter of jurors,3 and it is obvious that the line between legitimate contributions to the expenses of a costly journey, and corrupt practices, was difficult to draw. It therefore became more and more necessary to devise means for reversing verdicts.
The only ancient method available was by attaint.4 This consisted in summoning a jury of twenty-four, and the proceedings were not merely a reconsideration of the facts in dispute, but also a criminal trial of the first jury for perjury. This was only logical at a time when every jury spoke out of its own knowledge of the facts involved in the case. Their function was to tell upon oath the facts which they knew; it was not their duty to act as impartial judges of evidence produced before them. If such jurymen returned a verdict which was demonstrably false, and in spite of their own better knowledge of the facts, then it was obvious that they had committed perjury and deserved the punishment provided for attainted juries:
“All of the first jury shall be committed to the King’s prison, their goods shall be confiscated, their possessions seized into the King’s hands, their habitations and houses shall be pulled down, their woodland shall be felled, their meadows shall be plowed up and they themselves forever thenceforward be esteemed in the eye of the law infamous.”5
Attaint first appears as a remedy against the false verdicts given by members of the “assizes” in actions of novel disseisin, mort d’ancestor and the like. In these actions the defendant had always been compelled to accept trial by assize, and so it was but reasonable that he should have a means of punishing untruthful jurors. In writs of right, on the other hand, it was the demandant who might be compelled (at the tenant’s choice) to submit to the “grand assize”. Here, too, the writ of attaint could be brought.1 In other cases, however, both civil and criminal, it was possible to argue that the parties had voluntarily (in form at least) put themselves upon a jury, and that since they had chosen this form of trial they were not entitled to any relief if it turned out unsatisfactorily. Attaint was extended by statute first to one action and then to another, and finally in 1361 to every action tried by jury;2 but never to criminal trials. In London, local legislation wisely reduced the penalty upon attaint.3 But as for the common law, Queen Elizabeth’s Secretary of State, Sir Thomas Smith, wrote in 1565:4
“Attaints be verie seldome put in use, partly because the gentlemen will not meete to slaunder and deface the honest yeomen their neighbours, so that of a long time they had rather paie a mean fine than to appeare and make the enquest. And in the meane time 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 enquest be too evident, or the one partie is too obstinate and headstrong. And if the gentlemen do appeare, gladlyer they will confirme the first sentence, for the causes which I have saide, than go against it. But if the corruption be too much evident, they will not sticke to attaint the first enquest: yet after the gentlemen have attainted the yeomen, if before the sentence be given by the Judge (which ordinarily for a time is differred) the parties be agreed, or one of them be dead, the attaint ceaseth.”
As the character of the jury slowly changed, the logic of the action of attaint became less apparent. As the middle ages proceed the custom grows of assisting the jury by producing evidence in court in their presence. From quite an early date the witnesses named in a deed, if still living, were summoned to sit with the jury (and it became a rule that if they did so, then the jury was immune from attaint);5 but gradually, first in one case and then in another, it became customary to examine other witnesses in the presence of the jury. As a result the jury speaks less and less out of its own knowledge and becomes instead a judge of the evidence placed before it. The situation in respect to attaint thus becomes very different. A jury may return an erroneous verdict as a result of inadequate or inaccurate evidence, or a misunderstanding of the true import of the evidence adduced; but such an error of judgment in making a wrong deduction from evidence which may have been conflicting, insufficient or improperly presented is surely not sufficient reason for the severe penalty provided in the old action of attaint. It is no longer a question (at least in many cases) of deliberate perjury, but only of a more or less excusable error of judgment. It is only natural to find, therefore, that the action of attaint falls into disuse, as the quotation from Sir Thomas Smith has shown. This, however, did not help the situation. The more the jury becomes a judge of facts which parties attempt to prove before them, the more room there is for honest mistake, more especially as there is practically no trace of a law of evidence at this period. In short, there was an increasing need of some machinery for revising the verdicts of petty juries—more especially in civil actions, which always received in the middle ages more careful attention than criminal matters. Occasionally we find an appeal to Parliament where even an attainting jury was alleged to be prejudiced.1
THE PUNISHMENT OF OBSTINATE JURORS
In the sixteenth century examples are to be found of various prerogative courts undertaking to punish jurymen who found verdicts manifestly against the evidence.2 In an age when political trials were becoming more frequent, it became a serious matter that verdicts could be set aside and jurors punished in courts which were really a disguised form of the Council. In Crompton’s treatise on the jurisdiction of courts (1594) we read:
“Note that the London jury which acquitted Sir Nicholas Throckmorton, Knight, about the first year of Queen Mary, of high treason, was called into the Star Chamber in October, 1544 (sic), forasmuch as the matter was held to have been sufficiently proved against him; and eight of them were there fined in great sums, at least five hundred pounds each, and remanded back to prison to dwell there until further order were taken for their punishment. The other four were released, because they submitted and confessed that they had offended in not considering the truth of the matter.
“See also eleven jurymen who acquitted one Hodie of felony before Sir Roger Manwood, Chief Baron, on circuit in Somersetshire, against obvious evidence, were fined in the Star Chamber and made to wear papers in Westminster Hall about 1580; and I saw them.
“Note that one G. wrote a letter to a juryman who was about to sit on a case between Lane and O. D., requesting him to follow his conscience according to the evidence; he was fined here twenty pounds because it was not his business, about 1585. Note this, that one ought not to meddle with any matter pending in suit which is not one’s own business.”1
Throckmorton’s prominent share in Wyatt’s rebellion put his guilt beyond the slightest question, but he was a protestant hero to the Londoners, and the jury’s verdict was purely political. From now onwards the jury enters on a new phase of its history, and for the next three centuries it will exercise its power of veto on the use of the criminal law against political offenders who have succeeded in obtaining popular sympathy.
BUSHEL’S CASE
A very famous case on this matter was Bushel’s Case2 in 1670, where Chief Justice Vaughan in his judgment defined the position and duties of the jury. Although he retained the ancient view that a jury may depend upon its own knowledge, yet he gave a larger place to their independence. He insisted upon the ancient law; in his opinion the jury was not bound to follow the direction of the court, for the very good reason that if they returned a wrong verdict it was the jurors who were punished by attaint, and not the judge who directed it. Every jury sat with the shadow of attaint overhanging it, and this was ample sanction. Acting, therefore, under so great a peril, the jury must be left completely free from directions by the bench and from any subsequent punishment in Star Chamber or elsewhere, with the sole exception of the ancient proceeding of attaint. In other words, there was just enough of the doctrine
