Page:Harvard Law Review Volume 5.djvu/70

54 54 HARVARD LAW REVIEW. the time of the birth, as that the same year there was a great thunder, tempest, or pestilence, and the like; and all these signs shall be returned by the sheriff." And the reporter puts it as a query whether, since this is proof by witnesses {per proves), there may be less than twelve. The requiring of the age of forty-two points to the idea that they must have been of an age to be a witness when the child was born. By 15 15 1 this doubt seems to have been settled : " It was agreed that the trial of his age shall be by twelve jurors; but in giving their verdict every juror should show the reason inducing his knowledge of the age, such as being son gossipe, or that he had a son or daughter of the same age, or by reason of an earthquake or a battle near the time of the birth, and the like." Quaint illustrations of these examinations, of the year 1409, are found in the Liber de Antiquis Legibus. 2 In one of these cases, relating to a woman's age, each of the twelve makes his statement separately, and each is asked how he knows it. One, sixty years old, says that he fixes the age by the fact that he saw the child baptized ; they had a new font, and she was the first person baptized from it. Another, a tailor of the same age, says that he held a candle in the church on the day of bap- tism, and also made the clothes which the mother wore at her purification. Two others, over fifty, fix the day by a great rain and flood which made the river overflow, and filled the hay with sand. Two others recollect that their hay from six acres of meadow was carried away by the flood. Two others remember it by a fire that burned a neighbor's house. Another by the fact that he was the steward of the child's grandfather, and was ordered by him to give the nurse who told him the news twenty shillings; and so on. It is easy, then, to see how in this sort of case the old proof by witnesses should gradually fade out into trial by jury; for the old jury was nothing but a set of triers made up of community witnesses selected by the king's authority. The old mode of trying age by the inspection of the judges, which we saw in 1219, was practised long; but the general rule became established in all such cases that the judges, if in doubt, might refer the matter to a jury. 3 (b.) Ownership of Chattels. — There were other sorts of trans- 1 Keilwey, 176-7. 2 pp. cxlix-cliii., Camden Soc. Pub., London (1846). 8 Brooke's Ab. Trial. 60.