Page:Harvard Law Review Volume 5.djvu/376

360 360 HAR YARD LA W RE VIE W. he lives, in the country, to have knowledge of the truth of the matter and he informs them, it is justifiable ; but if he comes to the jurors or labors to inform them of the truth, it is maintenance, and he will be punished for it ; " so Fortescue said, and it was ad- mitted by the court. 1 It is then abundantly plain that by this time witnesses could testify in open court to the jury. That this was by no means freely done seems also plain. Furthermore, it is pretty certain that this feature of a jury trial, in our day so conspicuous and indis- pensable, was then but little considered and of small importance. We see this in the valuable and very interesting book of Fortes- cue, " De Laudibus Legum Anglice" written in Latin, not long, probably, before 1470. Fortescue had been Chief Justice of the King's Bench from 1442-1460 ; after being in exile with the queen and son of Henry VI., he returned to England, and was alive as late as 1476, — dying, it is said, at the age of ninety. In this book, which is written in the form of a dialogue between the Prince of Wales in exile and "a certain grave old knight, his father's Chancellor, at that time in banishment with him," the excellence of English laws is set forth, as compared with the "civil law," i.e., the law of other European countries, founded on the Roman system. The first point in this com- parison is the method of determining controversies of fact ; more than a quarter of the book is taken up with showing how much better, in this respect, the English system is than that of the con- tinent, where two witnesses are enough : " Slender, indeed, in resource must he be thought, and of less industry, who out of all the men he knows cannot find two so void of conscience and truth as to be willing for fear, favor or advantage to go counter to the truth in anything. . . . Who then can live secure in property or person under law like this, giving such aid to any one who would harm him." (c. 21). Under that system (c. 23), justice constantly fails from the death or failure of wit- nesses. In England, on the other hand (cc. 25, 26), the witnesses must be twelve ; they are chosen by a public official of high 1 The doctrine of maintenance seems to have scared witnesses in Chancery. It is to the period 1450-60 that a petition belongs (Calendars of th 1 ; Proceedings in Chancery, 1, p. xix.) in which a plaintiff asks the Chancellor to issue a subpoena to a certain witness to appear and declare the truth, setting forth that the " same Davyd will gladly knawelygge the treweth of the same matiers, bot he wald have a maundement fro yowe for the cause that he shuld noght be haldyn parciall in the same matier."