Bracton: Thorne Edition: English. Volume 3, Page 341

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Volume 3, Page 341

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[001] which ought to be proved by instruments and witnesses or by the jurors as aforesaid.
[002] In the grand assise no conviction lies for this reason, because when the demandant
[003] offers to prove his allegation, the tenant must defend himself by the duel or the
[004] grand assise, whichever of the two he chooses, and since he voluntarily betakes
[005] himself to the assise he cannot impugn it; if he does so it is evident that he repudiates
[006] his defence, as in the assises, where [if] he puts himself on a jury for some reason, as
[007] explained above, he cannot afterwards repudiate the jurors' verdict,¹ [for] if he
[008] should it would be nothing other than to nullify his own proof, and for that reason
[009] no conviction is allowed.² It is clear that there are assises and juries or inquests, for
[010] trespasses and other things. There are purgations, as where a crime is imputed, or a
[011] delict; purgation will be the proof of innocence. There is also a defence against a
[012] presumption, which is called neither a jury nor an inquest nor a purgation, that is,
[013] where one alleges that something is true and produces suit, defence against the
[014] suit then follows, proof, so to speak, against.the presumption. Several defences are
[015] sometimes admitted against suit, sometimes fewer, as will be explained elsewhere.³
[016] There is one jury which sometimes admits of conviction, as where a jury is taken as
[017] to some matter which touches the lord king and it finds against him; the jurors may
[018] be convicted by others, as before Martin of Pateshull, [the case] of Henry of Monewedene,
[019] who was once in the wardship of the lord king in the time of Hubert de
[020] Burgh.⁴ A jury or inquest does not admit of conviction, but if their verdict is challenged ⁵
[021] for some reason certain, emendation follows by a change⁶ of jurors or their
[022] afforcement.

If there is error in the judgment or the oath.

[024] If [the jurors] err in their oath or judgment, we must see whether the error is excusable
[025] or the result of gross ignorance, that the punishment may be mitigated. Where⁷
[026] the matter cannot easily be ascertained except by presumption, as where an agreement
[027] or contract was made secretly, few being present, such error is excusable. But
[028] if it was made publicly and openly, so that everyone in the county knows of it and
[029] only the jurors are ignorant,⁸ or have doubts, they are not excused of perjury because
[030] this is gross ignorance. If the jurors recite the matter as it is in truth, and afterwards
[031] judge⁹ the matter according to their recital and err in judgment, the judgment
[032] is foolish rather than false, since they believe such judgment follows from such
[033] facts.¹⁰ [But] if the justice pronounces judgment according to their verdict,¹¹ he gives
[034] a false judgment. He ought not, therefore, to follow

Notes

1. ‘dictum’

2. B.N.B., no. 262; Woodbine in Yale L. Jour., xxxix, 505-6

3. Not in treatise

4. B.N.B., no. 1294; no roll extant. In the margin of OA at this point (fol. 128v): ‘ut supra de donationibus plenius; ibi casus’

5. ‘calumnietur’

6. ‘per mutationem’

7. ‘Ubi’

8. D. 22.6.9.2; supra 152

9. ‘iudicaverint’

10. Supra 337

11. Om: ‘et’