Bracton: Thorne Edition: English. Volume 3, Page 64

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Volume 3, Page 64

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[001] and even more dangerous for the jurors to risk perjury because of the doubtful gain
[002] of another's advantage.¹ That [the jurors may swear in the manner of a jury, though]
[003] the assise is taken in the manner of an assise, cannot be accepted under any reasoning,
[004] because the first [juror] cannot swear saving the view because of the words in
[005] the oath, because he will swear ‘that he will speak the truth concerning the tenement
[006] of which he has made the view by order of the lord king,’² but he has viewed no
[007] tenement, by the order of the lord king or without it; therefore as to no tenement he
[008] has seen may he speak the truth, because he saw no tenement, and therefore if the
[009] jurors so swear they clearly perjure themselves, because their oath is not in accord
[010] with the truth, that is, they swear concerning a tenement of which they have not
[011] made the view. If they swear thus, ‘concerning the tenement of which they have made
[012] the view,’ and afterwards, at the end, say ‘saving the view,’ that is invalid, because
[013] they will thus contradict themselves. Nor do I see any reason why³ the assise ought
[014] to be taken in the manner of a jury in the absence of some obvious cause. But what if
[015] something is disputed between the parties in an assise, so that, because⁴ of an
[016] incidental question, the assise is turned into a jury by consent of the parties? The
[017] jury may well proceed, even without the view.

Whether the disseisor, when he has been attached, ought to have a reasonable summons.

[019] When the sheriff has attached the disseisors to appear on the arrival of the justices,
[020] [whether justices appointed for all pleas generally or for some specially, as for the
[021] taking of assises of novel disseisin and mortdancestor and goal deliveries, or for the
[022] taking of some one assise specially, as are the four knights of the county or the one
[023] justice specially sent from the king's side, ‘that having joined with you etc.,’ as was
[024] explained above at the beginning [in the portion] on civil actions or criminal,]⁵
[025] quaere whether such attached persons ought to have the reasonable summons of a
[026] fortnight before the arrival of the justices. In truth they ought not, for whether they
[027] have⁶ the fortnight or a less protracted day they cannot complain, because whether
[028] they come or not the assise will be taken, because their absence or presence makes no
[029] difference.⁷ Nor will the injuria of disseisin permit an essoin, long delays or the
[030] formalities of judicial process, because they committed it by force and not by
[031] judgment, which is clearly contrary to justice and the peace of the lord king. And
[032] if they cannot appear in person they may by their bailiffs, or even by their friends,
[033] who may speak for them and whose answer will be admitted for instructing⁸ the
[034] jurors and even for avoiding the assise. But such persons cannot confess the disseisin,
[035] nor settle it by agreement nor remit it, as will be explained below.⁹

Notes

1. D. 12.3.4.pr.: ‘sub alieni compendii emolumento etiam periurium anceps subire’

2. Supra 72

3. ‘quare’

4. ‘propter’

5. Supra ii, 307

6. ‘habuerint’

7. Infra 208, 253, 301

8. ‘ad instruendum’

9. Infra 142