Page:Harvard Law Review Volume 5.djvu/318

302 HAR VARD LA W RE VIE W. at his own expense. And the matter was further regulated by later acts. {d) From the beginning of our records, we find cases, in a dis- pute over the genuineness of a deed, where the jury are combined with the witnesses to the deed. This goes back to the Franks ; and their custom of requiring the witness to a document to defend it by battle also crossed the channel, and is found in Glanville (lib. x. c. 12). As regards these earlier details, and the signifi- cance and relation to the old law of this fact of allowing one's self to be thus preappointed as a witness, I must merely refer to very interesting passages of Brunner. 1 In these cases the jury and the witnesses named in the deed were summoned to- gether, and all went out and conferred privately as if compos- ing one body ; the witnesses did not regularly testify in open court. Cases of this kind are found very early, e. g. in 1208-9 (PI. Ab. 63, col. 1, Berk.). In 1208 (ib. 56, col. 2, Suff.), there is an offer of the defendant to put himself on legalem jura- tarn patrie, and on the witnesses to a deed, eleven of whom are named, and it is added, et alii multi. Some light is thrown on the conception at the bottom of this introduction of so many names as witnesses, when we observe that people wrote in the names of absent friends and got their consent afterwards. It was only a few years after these cases when one of John's barons, being in prison and desirous of raising money, wrote to three distin- guished friends asking, as they could not be present at the exe- cution of his deeds, and as he had written in their names as witnesses, that they would consent to this. 2 A witness to a deed, according to the popular conception, was not necessarily one who had seen it executed, but one who was willing to give it credit by his name. This may account for its turning out so often, when witnesses were questioned, that they knew nothing about the matter. In 12 19, the parties put themselves on the witnesses and a jury. The order is "fiat inde jurata per . . . (seven witnesses) et per . . . (nine others) et veniat . . . ad recognoscendum" etc. 1 Schw. 197-8; ib. 434-6. Brunner cites the case of Bishop Wulfstan v. Abbot Walter, which is in Big. PI. A. N. 16, 287; s. c. Essays in Angl. Sax. Law, 377. 3 Quia ad cartas faciendas . . . prtsentiam vestram habere non potuimus pre- camur . . . ut de cards nostris in quibus ob securitatem obtinendam testes estis ascripti, testes esse velitis. Ellis's Letters, 3d Series, i. 25.