Changes to be made by judges if needful.

subtraction, or diminution of words, letters, titles, or parcel of letters, found in any such record, process, warrant of attorney, writ, panel, or return, which rasings, interlinings, addition, subtraction, or diminution, at the discretion of the King's judges of the courts and places, in which the said records or process by writ of error, or otherwise, be certified, do appear suspected, no judgment nor record shall be reversed nor adnulled.

II. And that the King's judges of the courts and places in which any record, process, word, plea, warrant of attorney, writ, panel, or return, which for the time shall be, shall have power to examine such records, process, words, pleas, warrants of attorney, writs, panels, or return, by them and their clerks, and to reform and amend (in affirmance of the judgments of such records and processes) all that which to them in their discretion seemeth to be misprision of the clerks in such record, processes, word, plea, warrant of attorney, writ, panel, and Exceptions: return; (2) except appeals, indictments of treason records not to and of felonies, and the outlawries of the same, and the substance of the proper names, surnames, and additions, left out in original writs and writs of exigent, according to the statute another time made the first year of King Henry, father to our lord the King that now is, and in other writs containing Judges' right proclamation; (3) so that by such misprision of the clerk no judgment shall be reversed nor adnulled. tween record (4) And if any record, process, writ, warrant of

be amended

in certain

cases.

to correct

variance be

and certificate of

same.

attorney, return, or panel be certified defective, otherwise than according to the writing which thereof remaineth in the treasury, courts, or places from whence they be certified, the parties in affirmance of the judgments of such record and process shall have advantage to alledge, that the same writing is variant from the said certificate, and that found and certified, the same variance shall be by the said judges reformed and amended according to the first writing.

III. And moreover it is ordained, that if any record, or parcel of the same writ, return, panel, process, or warrant of attorney in the King's courts of chancery, exchequer, the one bench or the other, or in his treasury, be willingly stolen, taken away, withdrawn, or avoided by any clerk, or by other person, because whereof any judgment shall be reversed; that such stealer, taker away, withdrawer, or avoider, their procurators, counsellors, and abet- Punishment tors, thereof indicted, and by process thereupon zling a record for embezmade thereof duly convict by their own confession, to be felony. or by inquest to be taken of lawful men, whereof the one half shall be of the men of any court of the same courts, and the other half of other, shall be judged for felons, and shall incur the pain of felony. (2) And that the judges of the said courts of the one bench or of the other, have power to hear and determine such defaults before them, and thereof to make due punishment as afore is said.

IV. Provided always, That if any such record, process, writ, or warrant of attorney, panel, or return, or parcel of the same, be now, or hereafter shall be exemplified in the King's chancery under the great seal, and such exemplification there of record inrolled without any rasing in the same place in the exemplification and the inrollment of the same, that another time for any error assigned, or to be assigned in the said record, process, writ, warrant of attorney, panel, or return, in any letter, Power of the word, clause, or matter of the same varying, or contrary to the said exemplification and the inrollment, there shall be no judgment of the said records and process reversed nor adnulled.

CONTEMPORARY EXPOSITION

FORTESCUE (1450)

The way of proceeding in civil cases.

Great Seal.

Twelve Good and true Men being sworn, as in the Manner above related, legally qualified, that is, having over and besides

their Moveables, Possessions in Land sufficient (as was said) wherewith to maintain their Rank and Station; neither suspected by, nor at Variance with either of the Parties; all of the Neighbourhood; there shall be read to them, in English, by the Court, the (a) Record and Nature of the Plea, at length, which is depending between the Parties; and the Issue thereupon shall be plainly laid before them, concerning the Truth of which, those who are so sworn, are to certify the Court: Which done, each of the Parties, by (b) Themselves or their Counsel, in Presence of the Court, shall declare and lay open to the Jury all and singular the Matters and Evidences, whereby they think they may be able to inform the Court concerning the Truth of the Point in Question; after which each of the Parties has a Liberty to produce before the Court all such Witnesses as they please, or can get to appear on their Behalf; who being charged upon their Oaths, shall give in Evidence all that they know touching the Truth of the Fact, concerning which the Parties are at Issue: And, if Necessity so require, the Witnesses may be heard and examined apart, till they shall have deposed all that they have to give in Evidence, so that what the One has declared shall not inform or induce another Witness of the same Side, to give his Evidence in the same Words, or to the very same Effect. The whole of the Evidence being gone thro', the Jurors shall confer together, at their Pleasure, as they shall think most convenient, upon the Truth of the Issue before them; with as much deliberation and Leisure as they can well desire, being all the While in the Keeping of an Officer of the Court, in a Place assigned them for that Purpose, Lest any One should attempt by indirect Methods to influence them as to their Opinion, which they are to give in to the Court. Lastly, They are to return into Court and certify the Justices upon the Truth of the Issue so joined, in the Presence of the Parties (if they please to be present) particularly the Person who is Plaintiff in the Cause; what the Jurors shall so certify in the Laws of England, is called (c) the Verdict. In Pursuance of which Verdict, the Justices shall render and form their Judgment. Notwithstanding, if the (d) Party, against whom such Verdict is obtained, complain that He is thereby aggrieved, He may sue out a Writ of Attaint, both against the Jury, and also against the Party

who obtained it: in Virtue of which, if it be found upon the Oath of (e) Twenty-four Men (returned in Manner before observed, chosen and sworn in due Form of Law, who ought to have much better Estates than those who were first returned and sworn) that those, who were the Original Panel and sworn to try the Fact, have given a Verdict, f (15), contrary to Evidence, and their Oath; Every One of the first Jury shall be (g) committed to the Publick Gaol, their Goods shall be confiscated, their Possessions seised into the King's Hands, their Habitations and Houses shall be pulled down, their Woodlands shall be selled, their Meadows shall be plowed up, and they themselves shall ever thenceforward be esteemed, in the Eye of the Law, Infamous, and in no Case whatsoever, h (16), are they to be admitted to give Evidence in any Court of Record: The Party, who suffered in the former Trial, shall be restored to every Thing they gave against Him, thro' Occasion of such their False Verdict: And, who then (tho' He should have no Regard to Conscience or Honesty) being so charged upon his Oath, would not declare the Truth from the bare Apprehensions and Shame of so Heavy a Punishment, and the very great Infamy which attends a contrary Behaviour: And, if perhaps, one or more amongst them should be so unthinking or daring, as to prostitute their Character, yet the rest of the Jurors, probably, will set a better Value on their Reputations than to suffer either their Good Name or Possessions to be destroyed and seised in such a Manner: (i) Now, is not this Method of coming at the Truth better and more effectual, than that Way of Proceeding, which the Civil Laws prescribe? No one's Cause or Right is, in this Case, lost, either by Death or Failure of Witnesses. The (k) Jurors returned are well known; they are not procured for Hire; They are not of Inferior Condition; neither Strangers, nor People of Uncertain Characters, whose Circumstances or Prejudices may be unknown. The (k) Witnesses or Jurors are of the Neighbourhood, able to live of themselves, of Good Reputation and unexceptionable Characters, not brought before the Court by either of the Parties, but (1) chosen and returned by a proper Officer, a worthy, disinterested and indifferent Person, and obliged under a Penalty to appear upon the Trial. (k) They are well acquainted with all

the Facts which the Evidences depose, and with their several Characters. (m) What need of more Words? There is nothing omitted which can discover the Truth of the Case at Issue, nothing which can in any Respect be concealed from, or unknown to a Jury who are so appointed and returned, I say, as far as it is possible for the Wit of Man to devise.

SIR JOHN FORTESCUE, De Laudibus Legis Angliæ. XXVI. (civl. 1450).

SAINT-GERMAIN (1518)

Doctor. If one of the twelve men of an inquest know the very truth of his own knowledge, and instructeth his fellows thereof, and they will in no wise give credence to him, and thereupon, because meat and drink is prohibited them, he is given to that point, that either he must assent to them, and give their verdict against his own knowledge and against his own conscience, or die for lack of meat, how may the law then stand with conscience, that will drive an innocent to that extremity, to be either forsworn, or to be famished and die for want of meat? Student. I take not the law of the realm to be, that the jury after they be sworn may not eat nor drink till they be agreed of the verdict, but truth it is there is a maxime and an old custom in the law that they shall not eat nor drink after they be sworn till they have given their verdict, without the assent and license of the justices and that is ordained by the law for eschewing divers inconveniences that might follow thereupon, and that specially if they should eat or drink at the costs of the parties; and therefore if they do contrary, it may be laid in arrest of the judgment; but with the assent of the justices they may both eat and drink, as if any of the jurors fall sick before they be agreed of the verdict, so sore that he may not commune of the verdict, then by the assent of the justices he may have meat and drink, and also such other things as be necessary for him. CHRISTOPHER SAINT-GERMAIN, The Doctor and The Student. 158.

CRITICAL COMMENT

BLACKSTONE'S COMMENTARIES (1765)

The learned judge has displayed much erudition in the beginning of this chapter to prove the antiquity of the trial by