Page:Harvard Law Review Volume 5.djvu/320

304 HA R VA RD LA W RE VIE W. In the earlier cases these witnesses appear, sometimes, to have been conceived of as a constituent part of the jury; it was a combination of business-witnesses and community-witnesses who tried the case, — the former supplying to the others their more exact information, just as the hundreders, or those from another county, did in the cases before noticed. But in time the jury and the witnesses came to be sharply discriminated. Two or three cases in the reign of Edward III. show this. In 1337, 1338, and 1 349 1 we are told that they are charged differently; the charge to the jury is to tell the truth {a lour ascient) to the best of their knowledge, while that to the witnesses is to tell the truth and loy- ally inform the inquest, without saying anything about their knowl- edge (sans lour sclent) ; 2 "for the witnesses," says Thorpe, C. J., in 1349, "should say nothing but what they know as certain, knew of it until on a certain Thursday they came all together to the manor . . . and found there this said Richard, who showed them the said writing and said it was his deed. Each of them was asked, separately and by himself, at what hour they came there, and in what building in the manor Richard showed them the writing, and how he was dressed. One of them said that they came there in the morning before sunrise, and that the writing was shown to the four witnesses in the queen's chamber of the manor; and Richard was dressed in a German tunic de Medleto, and was shod in white shoes. The second said that they came at six o'clock (hora diei prima) and the writing was shown to the four witnesses at this hour, in the hall of the manor. The third said that they came, all at the same time, at nine o'clock {hora diei quasi alta tertid) and Richard showed them the writing in the stable of the manor, and he had on a black cloak. The fourth witness, William de Codinton, said that he never came to the manor with the said three witnesses, and never knew or heard of the making of the writing, or whether it was or wasn't Richard's deed, except from the report of the three witnesses, who gave him to understand, and swore to it, that the writing was Richard's deed." The judgment was against the deed, reciting the jury's verdict and the worthlessness of the witnesses' testimony. 1 Y. B. 11 & 12 Edw. III. 338; Lib. Ass. 34, 12; and Lib. Ass. no, n. 2 " It is an abuse," says the Mirror, a little earlier than this, " to use the term 'a lour escient ' in the oath, and make jurors decide upon thoughts (quiders), since the princi- pal word in their oath is that they will say the truth." c. 5, s. 1, 135. Professor Maitland, to whose labors legal scholars are so greatly indebted, in giving some ac- count of the earliest (manuscript) Register of Writs which he has seen, one of 1227 (3 Harv. Law Rev. 97, no et seq.), prints from it an interesting note relating to the grand assise. " In hac assisa non ponuntur nisi milites et debent jurare precise quod veritatem dicent, non audito Mo verbo quod in aliis recognitionibus dicilur, scilicet a se nescienter." Doubtless, as Maitland suggests, this last is a misreading of the bar- barous law French a son ascient. This passage helps us to see exactly what Shareshulle, J., meant in the next century, when he said (Y. B. II & 12 Edw. III. 341), of the witnesses, lour serement est a dire verite tut atrenche, auxi com ils sunt jurez en un graunt assise, el nemye a lour ascient. Of the queer phrase, tut atrenche, Selden surmises that it is a corruption from tout oultrance. Note 43, Hengham Magna, c. xii.