Page:Harvard Law Review Volume 5.djvu/71

55 THE OLDER MODES OF TRIAL. 55 formation. We have seen 1 how the old law could admit counter- witnesses without destroying the formal nature of the proof. With the refinement of procedure, affirmative defences came to be more distinctly recognized ; each party had to produce a complaint secta. There grew up the practice (whether by consent of parties or otherwise) of examining these, and disposing of the case according as one secta was larger or more numerous than the other, or composed of more worthy persons; and, again, if it was impossible to settle it on such grounds, of going to the jury. The secta in such cases turned into proof-witnesses. It was such a class of cases that brought down into our own century the name of "trial by witnesses," and the fact of a common-law mode of trial which had not sunk into the general gulf of trial by jury. In 1234-5 2 there came up to the king's court a record of pro- ceedings in the hundred court of a manor of the Bishop of Salisbury. A mare had been picked up in the manor, and one William claimed her in the hundred court and took her, on pro- ducing a sufficient secta and giving pledges to produce the mare and abide the court's order for a year and a day, according to the custom of the manor. One Wakelin de Stoke then appeared as claimant, and the steward required each to come on a day with his secta. They came et Wakelinus producit sectam quod sua est et similiter Wilhelmus venit cum secta sua dicens quod sua> fuit el ei pullanata (i.e., foaled). The hundred court, finding itself puzzled and not knowing cut incumbebat probacio, postponed judgment pro afforciamento habendo (i.e., semble, in order that the parties might increase their sectas). Then Wakelin appeared with a writ remov- ing the case to the king's court at Westminster. At Westminster William produced his secta, and they differed in multis, et in tem- pore et in aliis circumstanciis, some of them saying that William bought the mother of the mare four years ago, and she was then pregnant with her and had a small white star on her forehead ; and some that it was six years ago and she had n't any star ; and some agreeing in the time but differing about the mark, — some of them saying she had no star, but only some white hairs on her forehead, and some that she had n't any star at all. Wakelin produced a secta that wholly agreed, all saying that on such a day, four years back, Wakelin came and bought a sorrel (sorant) mare with a 1 Ante, p. 52. 2 Bracton's Note Book, iii., case m 5.