Bracton: Thorne Edition: English. Volume 3, Page 338

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Volume 3, Page 338

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[001] the matter otherwise than it happened, they either do so wittingly or are led astray
[002] by reasonable error. If having been examined (when they are led astray by reasonable
[003] error) they amend their statement, they may well do so, with impunity before
[004] judgment, but after judgment not without penalty.¹ If they persist in falsehood and
[005] wittingly speak what is false, and cannot be convicted out of their own mouths
[006] before judgment, they may be convicted after judgment by a jury. The judge or
[007] justice may be at fault and not the juror, as where, though the juror has spoken the
[008] truth and given the reason for his statement, the justice decides to the contrary; he
[009] either does this wittingly, in which case he will be liable ex maleficio, for deciding
[010] wrongly and wittingly perverting the just judgment of the jurors, and thus not the
[011] jurors but the justice will be at fault, [or unwittingly, as] where he acts through
[012] ignorance or inexperience, [in which case] he will be liable quasi ex maleficio;²
[013] because of his inexperience, he is to be dealt with more leniently with respect to
[014] punishment. ³The record having been examined, as aforesaid, let a conviction either
[015] be allowed at once or absolutely refused. Suppose that the jurors, being inadequately
[016] examined, speak obscurely, or do not reply fully to the interrogatories, or uncertainly,
[017] or, led astray by reasonable error do not speak the truth, as to part or the
[018] whole; then, the record having been examined, as above, certification rather than
[019] conviction will be appropriate, that they may make certainty out of uncertainty,
[020] truth out of doubt, and be recalled from error to truth.⁴

Who ought to take a conviction and a certification.

[022] When a certification is sought, [It ought not to be easily granted before someone
[023] other than the judge who took the assise, unless there is some ground for suspicion.]⁵
[024] it may not be granted before the record is seen and examined, as remarked above,
[025] [of conviction.] If the record is sufficient and clear, there will be no need for certification,⁶
[026] since the jurors cannot change their record or verdict nor vary in their
[027] verdict from the record of the justices, for if they could their word would thus be
[028] preferred and the record would be worthless. If they speak contrary to the record,
[029] they convict themselves by their own mouths. They can, however, in certification,
[030] make good a defect, as where they have said too little or something obscure, either
[031] in the narration of fact or in the judgment. If led astray by honest error they have
[032] sworn a foolish oath,⁷ they may correct their verdict before judgment with impunity,
[033] but after judgment not without penalty; though they put⁸ themselves in the mercy
[034] of the lord king, they will not escape the penalty for perjury, that is, with respect to
[035] redemption, though they are not adjudged infamous, as in the case

Notes

1. Infra 355

2. Cf. supra ii, 283, 289, infra iv, 280

3. New paragraph

4. Supra 74

5. Infra 342; om: ‘Et si . . . debeat,’ a connective

6. Somerset Pleas, no. 1491

7. ‘Si iusto . . . sacramentum,’ from line 32

8. ‘posuerint’