[111] A Constitution, an Institution, an Assise, were promiscuously employed to designate a Statute or Law.
[112] “All the persons suspect to either of the party,” says the Regiam Majestatem, “shall be repelled.” (Vide Reg. Majestatem, L. 1. c. 10.) See also Bracton 185. a.
[113] “The absence of either of the Parties shall not stay the Assise to proceed, seeing they did consent that the matter should pass to the knowledge of an Assise.” (Regiam Majestatem, L. 1. c. 12.)
[114] Concerning this mode of supplying the Jurors, termed in our old Law Books afforciament, the Reader may consult the Mirror, c. 4. s. 24.—Bracton L. 4. c. 19.—Britton p. 136.—Fleta 4. c. 9. s. 9. and Mr. Kelham’s Translation of Britton’s Pleas of the Crown. Note 22. p. 35.
[115] The Reader will remark the singular coincidence, in many respects, between the two proceedings, the Duel and the Grand Assise. This was no doubt intentional, and indicated a wise and political tenderness towards the prejudices of the age, still strongly inclining towards the trial by Battle.
[116] “Because,” says the Regiam Majestatem, “the fruits extant and dependant upon the ground are part of the Land and ground.” (L. 1. c. 12.)
[117] It may be here noticed, that the present chapter is one of the authorities to which Lord Coke appeals, in support of his position, that an attaint lay at common Law, both in Pleas real and personal. (2 Inst. 129, 236.)
[118] In commenting upon the Statute de finibus levatis, 27. Ed. 1. Mr. Barrington observes, “the Statute consists of four chapters, and the first states, the great perjury which prevailed among Jurors at this time, which offence in a witness was not now punishable by any Act of Parliament; it may be perhaps thought a reflection on the common Law to assert, that this crime was totally disregarded, but yet we do not hear of any such prosecution, except the attaint of a Jury be considered as such.” (Observ. on Anc. Stat. 176.) It will not, I trust, be considered as a want of respect for the high authority in question, to observe, that the general position intended to be supported, seems to be refuted by the latter part of the passage, if, as I conceive, the Juror was, in those times, of necessity a witness: it was part of his qualification that he was a witness, the two characters being then blended. This is, I submit, evident from the [17th chapter of the present book]. A separation of character seems to have been the gradual effect of posterior times. Nor is this all. The punishment of a Juror, when guilty of perjury, appears from the present chapter of Glanville to have been imposed by an Act of Parliament. If this Act, like most, if not all, of those mentioned in the following pages, be not now extant, it is assuredly no small part of the merit of Glanville, that he has preserved the substance of those public Records, of which no other trace can be found.
[119] Our author seems to allude to the punishment inflicted on the conquered Champion—such Champion’s cowardice being esteemed a species of perjury, as Lord Coke informs us, with which the perjury of the Jurors in the assise was commensurate. The same principle pervades the Norman Code—Omnes autem illi, qui perjurio vel læsione fidei sunt infames, ab hoc etiam sunt repellendi; et omnes illi qui in bello succubuerunt. (Le Grand Custum. de Normand. c. 62.)
[120] This R. should be N.