Bracton: Thorne Edition: English. Volume 3, Page 342

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 342

Next

Go to Volume: Page:

[001] their verdict but would be bound to amend it by careful examination. If he is unable
[002] to disestablish¹ it, recourse must be had to better counsel. There is an oath tendered
[003] by one party to the other in court, or by the judge to a party, upon which no conviction
[004] follows, for it is sufficient that they await the vengeance of God.² On the
[005] question of damages, where the jurors assess a disseisor too little in damages, no
[006] conviction but a certification lies, in which they may certify the judges as to the
[007] matters upon which they based their assessment. Such oath is put by the judge to
[008] the jurors as though they had said something doubtful or obscure.

Who may take a conviction or certification.

[010] We must also see for whom the plaint on a conviction lies. It is clear that it lies for
[011] him for whom the assise lies, that is, he who was in seisin in his own name, not in
[012] another's, as a procurator or a household. It also lies for him against whom the assise
[013] is brought. We must see who may take a conviction or certification. It is clear that it
[014] is he who took the assise, unless he is held suspect for some reason,³ because he
[015] best knows the truth, and even without another writ, since he has the power to
[016] determine the matter, because the full power of judging, in one assise as in several,
[017] belongs to a judge unless some special exception is made in the writ which serves as
[018] his warrant, ⁴because though a case is delegated to a person simply, everything
[019] necessary for its decision is taken to be granted him.⁵ Since, therefore, conviction and
[020] certification are accessories to the assise, and it cannot be finally determined without
[021] conviction or certification, it will be proper for him to whom full jurisdiction for
[022] taking the assise belongs to take the conviction or certification. We must see within
[023] what time it must be taken. It is clear that it must be taken immediately after the
[024] taking of the assise by him who took it, otherwise the judgment of the assise will
[025] pass over into res judicata,⁶ so that it cannot be taken later without a special order
[026] from the lord king. Also where it ought to be taken, in the county, as ought to be
[027] done of assises,⁷ or outside it. It is clear that at the will of the lord king or the justices,
[028] either in the county or outside it, wherever the assise is taken,⁸ since it is an accessory
[029] of the assise, like certification. And if Magna Carta is alleged, that assises ought
[030] not to be taken outside the county,⁹ it does not follow therefrom that juries are
[031] always to be taken in the county. For the assise has one rule and the jury another.
[032] The writ for summoning the twenty-four for convicting the twelve is this:

Notes

1. ‘diiudicare’

2. Supra ii, 33, iii, 43, infra iv, 159; G. Post in Tulane L. Rev., xlii, 525-35; L.Q.R., lxxxviii, 25

3. Supra 338

4-5. Tancred, 96: supra ii, 308; D. 2.1.2

6. Supra 335; Tancred, 275: ‘transit in rem iudicatam’

7. Supra ii, 301

8. Om: ‘in comitatu vel extra,’ redundant

9. Magna Carta (1215) ca. 18; (1225) ca. 12.