Page:Harvard Law Review Volume 5.djvu/69

53 THE OLDER MODES OF TRIAL. . 53 Norman law contemporaneous with our earliest judicial records shows the same breaking up and confusion as regards this sort of trial which we remark in England, so it is the same classes of cases in both countries that preserve the plainest traces of it. " In my opinion," says Brunner, 1 " undoubtedly we are to include under the head of the formal witness-proof these : (i) The proof of age ; (2) The proof of death; . . . (3) The proof of property in a movable chattel." (a.) Age. — In a case of 1219, in the Common Bench, 2 where the defendant alleged the minority of the plaintiff, the plaintiff replied that he was of full age, and thereof he put himself on the inspection of the judges, and if they should doubt about it he would prove it either by his mother and his relatives, or other- wise, as the court should adjudge. The judges were in doubt, and ordered that he prove his age by twelve legal men, and that he come with his proof "on the morrow of souls." 3 Now these twelve are not at all a "jury," for the party selects them himself. At the page of Bracton's treatise where he cites this case, he tells us that in these cases the proof " is by twelve legal men, or more if there be need, some of whom are of the family . . . and some of whom are not; " and he gives the form of oath, which is a very different one from that of the jury. First, one of them swears that the party is or is not twenty-one if a man, or fourteen or fifteen if a woman — sic me Deus adjuvet et sancta Dei evangelia; and then in turn each of the others swears that the oath thus taken is true. In a peculiarly interesting part of his great work on the jury, Brunner points out that the old witness-proof was in some cases transformed at the hands of the royal power into an inquisition, so that the witnesses were selected by the public authority, as they were in the ordinary jury. We seem to see this way of blending things in the English process, de estate probanda. In 1397 4 we read, after the statement that the king's tenants, on coming of age, in order to recover their lands must sue out a writ of aetate probanda, that those who serve on the inquest must be at least forty-two years old, "and shall tell signs to prove 1 Schw. 205. 2 Bracton's Note Book, ii., case 46; cited in Bracton, f. 424 b. 3 See also ib. iii., case 1131 (A. D. 1234), and case 1362 (in 1220).
 * Bellewe, 237.