Page:Harvard Law Review Volume 5.djvu/64

48 HARVARD LAW REVIEW. feature of the formal system of proof. When the proof was " one-sided," and allotted to this man or that as having merely the duty of going through a prescribed form to gain his case, it was a very vital matter to determine which of the parties was to have it. If there was to be a trial it was a privilege, in a civil case, to go to the proof; and yet the form was often clogged with technical detail, and had little or no rational relation to the actual truth of fact involved in the charge, it might be very dangerous and bur- densome to be put to the necessity of going through with it. The forms of trial might also involve bodily danger or death. Not every complaint or affirmative defence, therefore, would put an antagonist to his proof: there must be something to make it probable. This notion is fixed in the text of John's Magna Carta (art. 38) in 121 5: Nullus ballivus ponat de cetero aliquem ad legem x simplici loquela sua, sine testibus fidelibus ad hoc inductis? This sort of "witness," it must be noticed, might have nothing to do with the trial; he belonged to the stage of the preliminary allegations, the pleading, where belonged profert of the deed upon which an action or a plea was grounded. But just as rules belong- ing to the doctrine of profert in modern times crept over, unob- served, into the region of proof, under the head of rules about the " best evidence " and " parol evidence," so the complaint-witnesses were, early and often, confused with proof-witnesses — a process which was made easy by the ambiguity of the words " testis," " secta," and " witness." The complaint-proof was thus confused with the old " one-sided " witness-proof, with the rational use of witnesses by the ecclesiastical courts, and with the proof by oath and oath-helper. One complaint-witness seems originally to have been enough, and in the procedure leading to the duel or the 1 As to this term lex, see 4 Harv. Law Rev. 157-8. 2 Brunner's explanation of this passage is found in his Schwurg., 199-200. " If a lord appears with a complaint-witness against his vassal, in his own court, the vassal must answer, although no witnesses are brought. . . . Sometimes this privilege was limited so that the lord had it but once a year. The privilege of the fisc [or, as we should say, the crown] in this respect was unlimited. If a royal officer appears as plaintiff in a complaint belonging to his chief, he need not produce any witness. . . . Even if such a complaint only called for the oath of purgation from the defendant, yet for this there was need, not merely of a clear conscience, but compurgators, and the painful formalism of the oath might only too easily bring the swearer to grief. Article 38 in Magna Carta may have owed its origin to such considerations when it provided, ' Nullus ballivus,' " etc. See also Brunner in Zeitschrift der Savigny-Stiftung (Germ. Abt.), ii. 214.