Page:Harvard Law Review Volume 5.djvu/378

362 362 HAR YARD LA W RE VIE W. One remarks the small place that these informing witnesses have in the picture. The point of view here referred to clearly appears in what follows. By and by the prince is wholly satis- fied of the excellence of the English law, one scruple only remaining. The Scriptures say that " the testimony of two men is true," and " bring with you one or two, so that in the mouth of two or three every word be established." If the Lord says two or three, why require more ? No one can get any better or other foundation than the Lord has set. This is what troubles me a little, — hec sunt, Cancellarie, que aliquantulutn me conturbant. The Chancellor is ready with his answer: If the testimony of two is true, a fortiori that of twelve should be thought true ; according to the rule, Plus semper in se continet quod est minus. All that the Scriptures mean, he goes on, is that not less than two shall serve. " In no case can this mode of proceeding fail for lack of witnesses ; nor can the testimony of witnesses, if there be any, fail of its due effect, etc." Almost contemporaneous with Fortescue's book is the case of Babington v. Venor, in 1465, 1 in which, for the first time in the Year Books, we have something like a full report of the arguments and the putting in of the case before the jury. It was an assise of novel disseisin. Littleton for the plaintiff " shows in evidence " for the plaintiff a long story. Towards the end of it he says as to one point, " a man is here at the bar, an esquire, who spoke with her, &c. . . . and he will declare it. And also here is the general attorney of the Lord [Bishop] of W., who says in his Lord's name that, etc." There is nothing to show that either of these witnesses was actu- ally put on. " Then Yong, for the defendant, shows evidence to the assise," — going on with another long story; and then, "The defendant's farmer is here at the bar ready to show to the Court {al Court) how, etc. . . and this will the farmer declare to you, and also the rent-collector." Then he shows certain docu- ments, nothing being said of any examination of witnesses as yet. Then Catesby, for the plaintiff, makes counter statements, e.g., how the plaintiff entered, in the presence of several men here at the bar, etc., etc. ; and he concludes by praying that the farmer may be examined. " The farmer came into Court and was sworn on a book to tell the truth to the Court as to that on which he should be examined ; and he was examined by the court. . . . 1 Long Quint (Edw. IV.) 58; s. c. Y. B. 5 Edw. IV. 5, 24. Ante, 316-17.