Bracton: Thorne Edition: English. Volume 3, Page 71

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Volume 3, Page 71

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[001] he may perhaps not wish to say anything (or have nothing to say) as to why the
[002] assise ought to remain, but by denying at once that he has committed a disseisin put
[003] himself simply on the assise; the assise thus proceeds in the manner of an assise,
[004] and let it then be taken, if the jurors are present, all or the greater part, [that is],
[005] seven at least,¹ against whom no exception may be raised. If they are not present,
[006] let the assise be postponed to another day, that they may then come and the assise
[007] proceed. When they do come, ²exceptions may be raised against them in many ways,
[008] for they may be kept from taking the oath for the same reasons that witnesses are
[009] kept from giving testimony.³ An infamous person is forbidden the oath,⁴ that is,
[010] one earlier convicted of perjury, because he loses his law, and is thus said to be no
[011] longer law-worthy: in English, ‘He is not oath-worthy who is once guilty of breaking
[012] his oath.’⁵ One is forbidden the oath because of enmity, great not light, and present,
[013] not that which once existed but no longer exists at the time the juror is produced.
[014] Also because of present friendship, just as because of hatred. Also if he claims some⁶
[015] right in the thing with respect to which he must swear. A villein is forbidden the
[016] oath of the jurors, and that without any oath but by the mere word⁷ of those alleging
[017] it, if he is in possession of his servitude. One is also forbidden because of great intimacy,
[018] not if it is slight, [and] because of consanguinity and present affinity, because
[019] they walk in almost the same steps, unless he [the juror] is joined to the other party
[020] by the same or a similar tie, which is also true in the cases of friendship, intimacy
[021] and enmity mentioned above. He who is the table-companion, or of the household
[022] of him for whom he must swear, is forbidden the oath.⁸ Also if he is so under his
[023] potestas that he may be commanded,⁹ or injured, or so in his power or under his
[024] control that he may in some way be hurt by him, as¹⁰ by reason of suits, services or
[025] customs. Also if the juror and¹¹ one of the parties are in the same action or a like one.
[026] Also if he is of counsel to, or the advocate¹² of either of the parties. And note that
[027] grounds of suspicion are sometimes present, sometimes past; that which once
[028] existed but does so no longer is given no weight, for a present cause ought to be
[029] alleged and proved, not one that is past, because what was, no longer is, and thus
[030] ought not to be alleged or proved. A ground which existed some time ago is not
[031] sufficient, not unless it is present or recent; [if] a juror and one of the parties ¹³were
[032] enemies the day before yesterday or the day before that,¹⁴ though they are not
[033] so now, that is a likely ground for refusal because it is recent. There are many other
[034] reasons for refusing jurors

Notes

1. Supra 58, infra 254

2-3. Glanvill, ii, 12

4. Tancred, 224: ‘Prohibentur infames et repelluntur a testimonio, ut X.5.40.10 etc.’

5. Inst. Cnuti, 20, 36.1: Liebermann, i, 323, 339; infra 346

6. ‘quoddam’

7. Reading: ‘a sacramento iuratorum et hoc absque sacramento, simplici verbo,’ as infra 85

8. Drogheda, 378: ‘familiaris vel commensalis’; infra iv, 281

9. Tancred, 228; D. 22.5.6

10. ‘ut’

11. ‘et’

12. Drogheda, 378

13-14. C. 3, qu.5, ca.2: ‘Accusatores et testes esse non possunt qui ante hesternum diem aut nudius tertius inimici fuerint’