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62

The Green Bag

It is in connection with a venue that the letters ss are brought to the special attention of the lawyer. But when he recalls that our modern venue is the direct descendant of Middlesex, to wit,u or London, to wit, of Blackstone's day and Chitty's day, he wonders what the meaning of the words to wit is after the word London. To explain that they carry no meaning in that form, it being merely a transitional form, which, taken by itself, has no meaning, it is necessary for us to go into the history of venue. When we speak today of the venue of an action all we have in mind in a general way is the place of trial. As a very recent writer puts it in his scholarly treatise :u "As a term of modern law its prevailing signification is that of the geographical division in which an action or special proceeding is brought for trial." In the early days of English law the venue meant much more than this; it meant many things, the books are "full of cases upon the subject of venues, and the doctrine very nice and curious." 26 The word venue came from the Latin word vicinetum, the neighborhood where the facts to be tried arose.27 In the early days the jurors were not judges of the facts presented to them by the witnesses as they are today, but were the witnesses themselves. In those days the jurors were called from the hundred or other political subdivision so that they would be the persons cognizant of the matter in dispute.28 In order to Chitty on Pleading, p. 279 el seq. 25 Charles M. Hepburn, Professor of Law at the Indiana University. Author of the subject, "Venue" in 40 Cyclopedia of Law and Procedure. "Ilderton v. Ilderton, 2 H. Bl. 145. "Bacon's Abridgment, tit. "Visne or Venue." Dowdale's Case, Coke's Reports *48a. Ware against Boydell, 3 Maule and Sclwyn's Rep. 148. m Bouvier's Institute, Bk. 4, tit. 8, chap. 4, sec. 2, 5 2. Coke on Littleton, 125a, Ilderlon v. Ilderton, 2 H. Bl. 145.

know into what neighborhood the venire facias, or writ which commanded the sheriff to summon the jurors, should be directed, and to enable the sheriff to execute the writ, it was required that the neighborhood should be particularly set forth. For in seeking out the "free and lawful men of the visnetum" he would make "diligent enquiry concerning chose who were sufficiently acquainted with the facts by personal knowledge or by reliable report." 29 During the early period when the jurors were the witnesses, there was only one venue; but later on, when the jurors became judges of the facts, a second venue was introduced. The first is known as the venue of fact —. the place of the dispute; the second, the venue of action '— the place where the dispute would be tried.30 If our ancestors could have adopted their new theory in toto — that the jurors are judges and not wit nesses — there would have been no reason for stating a second venue. But the change came very slowly through a period of four hundred years and we find it was during that period that the venue in the margin, to which the letters ss are now so commonly attached, was first used.31 One of the early examples of the venue of the action stated in the "margent," as Lord Hardwicke said in Jodderell v. Cowell, is that in a precept to summon jurors to attend an admiralty court at South Benfleet in the County of Essex in 1543: 32 Sowthe Benfleete ^ in comitatu Essexie J At first it was thought very important that both venues be stated; but later M30 40 Bigelow, Cyclopedia Hist. Proc., of Law p. 335. and Procedure, tit "Venue." 31 40 Cyclopedia of Law and Procedure, p. 14.

    • Placita in Curia Admirallitatis, temp. Hen.

VIII. (1543).