A Concise History of the Common Law. Theodore F. T. Plucknett

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 of attaint left to enable the court to say that there was adequate means of dealing with a dishonest jury, and therefore of declaring in general terms the jury’s right to independence. The judgment of Vaughan was very ingenious in its combination of anti-quarianism and logic. Under the circumstances these were no doubt proper weapons in the defence of juries against political interference. But Vaughan knew, as well as everybody else, that for practical purposes attaint was obsolete, and that his judgment therefore amounted to a declaration of the irresponsibility of the jury. However useful this might have been in certain types of political trial, it was obvious that it worked hardship in private litigation. The courts were well aware of this, and were already at work even before Bushel’s Case in search of some means of setting aside obviously unsatisfactory verdicts.

NEW TRIALS

      They began to devise rules under which a new trial could be ordered.¹ The mediaeval law on the subject of new trials was not very promising. The only early grounds which they admitted were misconduct of the jurymen, such as eating and drinking before returning their verdict, and even then the verdict was not necessarily set aside.² Where damages or costs awarded by a jury were manifestly too high or too low, the court would sometimes fix its own figure, in the fifteenth and sixteenth centuries, without ordering a new trial or a new inquiry of damages.³

      The amount of discretion which jurors might exercise varied with the form of action. Thus in an action on the case in 1615 to recover damages which by covenant had been fixed at a certain rate, a jury saw fit to award only about half the sum due. Coke declared that “there may be divers reasons why in equity they ought not to give so much damage as this amount, for it seems here that the jurors are chancellors” in the matter of assessing damages, and entitled to use an uncontrolled discretion. He agreed, however, that if it had been an action of debt the plaintiff would have recovered in full.⁴ During the Commonwealth, there was the striking case of Wood v. Gunston in 1655, when the Upper Bench allowed a motion for a new trial when a jury had awarded unreasonably high damages in an action for slander (once again, an action on the case), against the direction of the court.⁵ There was certainly no authority for this; a Commonwealth precedent of course carried little weight after the Restoration, and it was a long time before juries lost their arbitrary power over damages.⁶

For a time the courts took refuge in the distinction between trials at nisi prius and trials at bar; the former being regarded as less solemn, the verdicts were liable to be set aside; but Lord Holt in Argent v. Darrell (1700)⁷ while admitting that new trials were often granted after verdicts at nisi prius, declared that “there never was a new trial after a trial at bar in ejectment”. By 1757 Lord Mansfield was able to say in Bright v. Eynon⁸ that new trials were frequently granted, although there is no trace of it in the books, because the old reports do not give any account of decisions upon motions. This fortunate omission no doubt assisted matters greatly, and it soon became easy to believe that the practice of granting new trials was established.¹ Thus was a revolutionary reform quietly effected without leaving many traces in the books; as we have seen, the work was half done by 1700, and declared to be complete in 1757. It need hardly be said that all through mediaeval times down to our own day, a jury was always at liberty to find