Bracton: Thorne Edition: English. Volume 3, Page 63

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Volume 3, Page 63

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[001] be assigned him a portion as large as that of which the jurors believe him to be
[002] disseised, because, though judges ought always to render a certain judgment, [if]
[003] they cannot,¹ in as much as an uncertain thing is litigated before them, they ought
[004] nevertheless to do so to the extent to which that is possible. ²There are some jurors
[005] who take the oath without the view, and thus ought to swear that they will speak the
[006] truth according to their consciences, saving the view, in the manner of a jury.³ As
[007] to such persons we must distinguish whether they were chosen from the beginning
[008] by the sheriff or bailiff and ordered to make the view [or were not. If they were] and
[009] disdained so to do, so that they have no excuse for their negligence, and are found
[010] guilty, that they did not make the view because of negligence and contempt, they
[011] will be heavily amerced. And if [the jurors] are convicted of perjury committed in the
[012] assise, they will not escape the punishment of convicted jurors, neither with respect
[013] to the infamy nor the penalty, because they commit a greater offence⁴ than the
[014] other jurors, because⁵ of the contempt;⁶ an equal punishment is inflicted upon them
[015] since of right a greater should be inflicted, because of the contempt, and they may
[016] impute that to their own negligence.⁷ If they are not chosen at the beginning but [put]
[017] in the place of others who do not come, or if they do, are rejected for some reason,
[018] because they are useless, or substituted in some other way, we must then see whether
[019] they are of a nearby neighbourhood or called from elsewhere, from far off, that⁸
[020] [we may know] whether it is likely or may be presumed that they know⁹ the truth or
[021] are ignorant of it. If it may be presumed that they know the truth of the matter, what
[022] actually happened,¹⁰ [[if] they are mistaken as to the place or the size of the thing,
[023] they are excused as to this last, because they made no view of the tenement,] and
[024] lie wittingly in their narration of the matter and the truth, they are not excused the
[025] punishment of convicted jurors, and¹¹ hardly of the infamy, because they made no
[026] view.¹² If they have been taken from places far removed, because of the lack of
[027] others, so that it may be presumed that they are ignorant of the truth,¹³ they are
[028] excused the punishment of convicted jurors and also the infamy, because those taken
[029] from remote parts may be mistaken as to the truth, and therefore they neither lie
[030] nor perjure themselves because they do not act contrary to their consciences; he
[031] who errs does not consent.¹⁴ There also are some who swear, without any view, in the
[032] manner of a jury, which ought not to be, [as elsewhere,]¹⁵ because suppose that an
[033] assise ought to be taken in the manner of an assise, when no exception is raised against
[034] it before the justices and there is no reason for it to fall into a jury, and all the jurors
[035] chosen are in court before the justices, [and] as soon as they have retired,¹⁶ without
[036] further preparation, so to speak, ought to declare the truth. [If] when [they have
[037] made] no view of the tenement¹⁷ and¹⁸ do not know whether they ought to give or
[038] take away, anything, much or little, or the whole,¹⁹ they are not open to a conviction,
[039] it will be dangerous for the plaintiff and tenant to have the matter proceed under a
[040] jury,

Notes

1. ‘reddere iudicium, si non possint’

2. New paragraph

3. Infra 74

4. ‘delinquunt’

5. ‘propter’

6. Infra 254, 346

7. ‘negligentiae,’ all MSS

8. ‘ut’

9. ‘sciant’

10. Infra 337

11. ‘et’

12. Om: ‘excusantur’

13. Infra 151, 346

14. Infra 74, 337

15. Infra 64

16. ‘quam cito recessi fuerint’

17. ‘cum visum non fecerint de tenemento’

18. ‘et’

19. Infra 69, 297