CHAPTER VII.

THE JURY CEASING TO BE WITNESSES, BECOME JUDGES OF EVIDENCE.

SECTION I. Mode of Trial where Witnesses were named in Deeds.

HE inquiry in which we have been engaged has

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made it abundantly clear that the verdict of the jurata, as well as the assise, was founded on the personal knowledge of the jurors themselves respecting the matter in dispute, without hearing the evidence of witnesses in court. But there was an exception in the case of deeds which came into controversy, and in which persons had been named as witnessing the grant or other matter testified by the deed. And as this seems to have paved the way for the important change whereby the jury ceasing to be witnesses themselves, gave their verdict upon the evidence brought before them at the trials, the subject deserves attentive examination.

In Glanvill's time the usual mode of proving deeds the execution of which was denied, was by combat, in which one of the attesting witnesses was the champion of the plaintiff. If the name of no attesting witness was inserted in the deed, the combat must be maintained by some other person who had seen or knew of the execution'. Another mode of proof was by a comparison of the disputed deed with

1 Tract de Leg. x. 12. § 3.

others admitted or proved to have been executed by the party; but this, which would at the present day be entirely a question for the jury, was determined then by the court'. In the case of contracts, where the creditor could produce no deed or mortgage or other security in support of his claim, the temporal courts took no cognizance of the matter; but the question was treated as one of broken faith, and referred to the spiritual tribunal (Curia Christianitatis2).

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At a later period, when Bracton wrote and the judicial combat in civil suits was falling into disuse, disputes arising out of deeds and charters to which there were attesting witnesses were determined by their evidence. And it has been the general opinion that they were included in the jury and formed part of it. Thus Sir F. Palgrave says, when a charter was pleaded, the witnesses named in the attesting clause of the instrument, and who had been present on the Folkmoot, the shire or the manor-court when the seal was affixed by the donor, were included in the panel; and when a grant had been made by panel, the witnesses were sought out by the sheriff and returned upon the jury.' And there are two old statutes the language of which obviously favours this interpretation. The first of these is the 52 Hen. III. c. 14. (A. D. 1267), which after mentioning the exemption from serving in assises, juries and inquests,' enjoyed by those who had obtained grants or charters to that effect, provides, that if their oaths 1 Tract. de Leg. x. 12, § 4. 2 Ibid. § 1. Eng. Comm. 1.

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be so requisite that without them justice cannot be ministered, as in great assises, perambulations, and in deeds of writings of covenants, where they be named as witnesses, or in attaints and in other cases like, they shall be compelled to swear, saving to them at another time their foresaid liberty and exemption.' Next follows the Statute of Westminster, 13 Edw. I. c. 38. (A. D. 1285), which enacts that if assises and juries be taken out of the shire, no one shall serve upon them who holds a tenement of less than the value of forty shillings yearly, except such as be witnesses in deeds and other writings, whose presence is necessary, so that they be able to travel (laborandum'). Now certainly if we confine our attention to these statutes, the view above mentioned seems to be the true one. But it may perhaps be doubted whether it is correct, and whether it is right to say that the attesting witnesses were included in the panel of jurors. There are two valuable chapters in Fleta on the subject of the proof of deeds, which throw considerable light upon the question. We there find the testes clearly distinguished from the patria, juratores and recognitores. Thus, 'si testes et juratores dicant quod cartam illam nunquam viderunt.— 'Cum autem testes et recognitores in curia comparuerint.'-' Probari enim poterit carta alio modo quam per testes et per patriam sicut per collationem

1 The original is, non ponatur in eis aliquis qui minus tenementum habeat quam, &c. In the Statutes at Large, this passage is rendered, 'none shall pass in them but such as hold a tenement of less than the value,' which is directly contrary to the sense. See Fleta, IV. c. 5.

sigillorum1.-The writs to the sheriff directing him; to summon recognitors, beyond doubt included the attesting witnesses; but it does not therefore follow that the latter sat as part of the jury. Their attendance was necessary, and therefore it was the duty of the sheriff to have them in court. And as their evidence really determined the question at issue, parties might not improperly be said to be tried by them as well as by the jury, or, in the language of the times, 'to put themselves upon the witnesses and the county'-se ponere super testes in carta nominatos et super patriam2. The form of writ to the sheriff in such a case was the following.

Rex Vicecomiti salutem.

Summone, &c. A. B. &c. testes nominatos in carta quam D. in curia nostra protulit, &c. Et præterea tot et tales tam milites quam liberos et legales homines de visneto, quod sint coram, &c. ad recognoscendum super sacramentum suum si, &c.

With respect to the tot et tales, here mentioned, it appears that the number of the jurors or patria, as distinct from the witnesses on these occasions, varied in different cases. We find a writ for summoning nine; and it is deserving of notice that here only three attesting witnesses are specified3, which looks as

1 De fide cartarum, c. 33; De probatione cartarum, c. 34.

Fleta, Lib. VI. cap. 33. It is upon this form of expression that Sir Francis Palgrave seems to rely in support of his assertion that the witnesses were included in the jury. Compare Bracton, IV. c. 15.

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Summone, &c. A. B. C. testes nominatos, &c. et præter illos 9 tam milites quam alios, &c. ad recognoscendum, &c. Ibid. § 3.

though they were to be added to the jurors at the trial, and thus make up the number twelve. Sometimes the recognition was made, or, in other words, the verdict was given by the witnesses alone1. But the most usual number of jurors summoned besides the witnesses was twelve2; and if we are to suppose that the latter sat with them, then the jury frequently consisted of a greater number than twelve; which is certainly contrary to the general opinion, and to the preponderating weight of precedent and authority3.

And the language of the statute 12 Edward II. c. 2. (A. D. 1318) seems to me to be more consistent with the view which I have ventured to take of the separation of the attesting witnesses from the jurors, than with that which supposes them to have formed part of that body. The words are, ‘Also it is agreed that when a deed, release, acquittance, or other writing, is denied in the king's court wherein witnesses be named, process shall be awarded to cause such witnesses to appear as before hath been used... Yet the taking of the inquest shall not be deferred by the absence of such witnesses.' If the witnesses in such cases formed part of the jury panel we should hardly expect to find a statute so worded which seems to contemplate a special process to compel their attendance.

In reality, however, since the jurors themselves

3 It must, however, be admitted that there are passages in Fleta which favour the opposite view. Thus, probetur carta et conventio per testes, licet domestici sint, simul cum aliis de juratâ, vel per collationem, vel alio modo. C. 16.