THE JURY AND ITS DEVELOPMENT. 367 always to have been the same finality in the procedure by the grand assise as in the duel : Ea enim que in curia . . . per due Hum seme I fuerint terminata negotia perpetuam habent firmitatem. Glanv. II. 3. And so in the earliest extant Year Book, in 1292 (20 Edvv. I. 1 8), the reporter has a memorandum, " Note : After the great assise an attaint never lies." The attaint (convictio) seems to have originated in England, but is not traceable to any extant legislation. Whether it may have been a part of the ordi- nances of Henry II. establishing the recognitions, or whether it de- veloped from the pena mentioned by Glanville in speaking of the great assise, or whether it was granted in the discretion of the king and his justices, seems not to be ascertained. This at least is true, that while it is not in Glanville, and while the first express mention of it in legislation appears to have been in 1268, we find it in the judicial records as early as 1202, and it is fully discussed in Bracton half a century later. On the other side of the channel, they had punishment for jurors who swore falsely. Brunner cites an undated capitulary of the eighth or ninth century (Schw. 89) which shows this. But the attaint went beyond this ; it was a procedure which also secured the reversal of the previous verdict, as a proceeding for error in law secured the reversal of a judge's decision. This, we are told, was a thing unknown in Normandy. As regards the stabilia, the petitory action corresponding to the writ of right, Brunner quotes a Norman case of 1248, in which the jury by mistake gave a verdict in favor of one William, and the court gave judgment accordingly ; whereupon the jury came back with the information : Quod non bene dixerunt, quia Robertus maius ius habebat in terra ilia quam W % The court, however, would not change their judgment ; William kept the land, and the jurymen had to pay Robert the value of it. 1 The same rule applied in other recognitions. Brunner cites is added that this punishment is rightly imposed, in order that all who put forward a false oath in this sort of case — whether champion (Glanv. II. 3) or juryman — may suffer a like punishment. 1 Schw. 371. It would have been strange if this rigor had not existed in early days, when form bound every man by the exact words he uttered in court. This subject is illustrated in Brunner's essay on " Word and Form," in the old French procedure, published in the Proceedings of the Imperial Academy of Vienna, Vol. 77. A transla- tion of this may be found in the " Revue Critique de Legislation et de Jurisprudence" (New Series), Vol. 1. Of the formalism of the old law many traces yet remain, such as the necessity for using specific words in criminal pleading. One sees an authentic bit of it in 1284 in the Statutes of Wales, c. VIII. (St. Realm, i. 64), where it is said of certain
