PRIVATE WRONGS.
BOOK III.
Ch. 22.

CHAPTER THE TWENTY SECOND.

OF THE SEVERAL SPECIES OF TRIAL.

THE uncertainty of legal proceedings is a notion fo generally adopted, and has fo long been the ftanding theme of wit and good humour, that he who fhould attempt to refute it would be looked upon as a man, who was either incapable of difcernment himfelf, or elfe meant to impofe upon others. Yet it may not be amifs, before we enter upon the feveral modes whereby certainty is meant to be obtained in our courts of juftice, to inquire a little wherein this uncertainty, fo frequently complained of, confifts; and to what caufes it owes it's original.

IT hath fometimes been faid to owe it's original to the number of our municipal conftitutions, and the multitude of our judicial decifions^a; which occafion, it is alleged, abundance of rules that militate and thwart with each other, as the fentiments or caprice of fucceffive legiflatures and judges have happened to vary. The fact, of multiplicity, is allowed; and that thereby the refearches of the ftudent are rendered more difficult and laborious: but that, with proper induftry, the refult of thofe enquiries will be doubt and indecifion, is a confequence that cannot be admitted. People are apt to be angry at the want of fimplicity in our laws: they miftake variety for confufion, and complicated cafes for contradictory. They bring us the examples of

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^a See the preface to fir John Davies's reports: Wherein many of the following topics are difcuffed more at large.
.{FE}
arbitrary

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arbitrary governments, of Denmark, Mufcovy, and Pruffia; of wild and uncultivated nations, the favages of Africa and America; or of narrow domeftic republics, in antient Greece and modern Switzeralnd; and unreafonably require the fame paucity of laws, the fame concifenefs of practice, in a nation of freemen, a polite and commercial people, and a populous extent of territory.

IN an arbitrary, defpotic, government, where the lands are at the difpofal of the prince, the rules of fucceffion, or the mode of enjoyment, muft depend upon his will and pleafure. Hence there can be but few legal determinations relating to the property, the defcent, or the conveyance of real eftates; and the fame holds in a ftronger degree with regard to goods and chattels, and the contracts relating thereto. Under a tyrannical fway trade muft be continually in jeopardy, and of confequence can never be extenfive: this therefore puts an end to the neceffity of an infinite number of rules, which the Englifh merchant daily recurs to for adjufting commercial differences. Marriages are there ufually contracted with flaves; or at leaft women are treated as fuch: no laws can be therefore expected to regulate the rights of dower, jointures, and marriage fettlements. Few alfo are the perfons who can claim the privileges of any laws; the bulk of thofe nations, viz. the commonalty, boors or peafants, being merely villeins and bondmen. Thofe are therefore left to the private coercion of their lords, are efteemed (in the contemplation of thefe boafted legiflators) incapable of either right or injury, and of confequence are entitled to no redrefs. We may fee, in thefe arbitrary ftates, how large a field of legal contefts is already rooted up and deftroyed.

AGAIN; were we a poor and naked people, as the favages of America are, ftrangers to to fcience, to commerce, and the arts as well of convenience as of luxury, we might perhaps be content, as fome of them are faid to be, to refer all difputes to the next man we met upon the road, and fo put a fhort end to every
contro-

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controverfy. For in a ftate of nature there is no room for municipal laws; and the nearer any nation approaches to that ftate, the fewer they will have occafion for. When the people of Rome were little better than fturdy fhepherds or herdfmen, all their laws were contained in ten or twelve tables: but as luxury, politenefs, and dominion increafed, the civil law increafed in the fame proportion, and fwelled to that amazing bulk which it now occupies, though fucceffively pruned and retrenched by the emperors Theodofius and Juftinian.

In like manner we may laftly obferve, that, in petty ftates and narrow territories, much fewer laws will fufice than in large ones, becaufe there are fewer objects upon which the laws can operate. The regulations of a private family are fhort and well-known; thofe of a prince's houfhold are neceffarily more various and diffufe.

The caufes therefore of the multiplicity of the Englifh laws are, the extent of the country which they govern ; the commerce and refinement of it's inhabitants ; but, above all, the liberty and property of the fubject. Thefe will naturally produce an infinite fund of difputes, which muft be terminated in a judicial way: and it is effential to a free people, that thefe determinations be publifhed and adhered to ; that their property may be as certain and fixed as the very conftitution of their ftate. For though in many other countries every thing is left in the breaft of the judge to determine, yet with us he is only to declare and pronounce, not to make or new-model, the law. Hence a multitude of decifions, or cafes adjudged, will arife ; for feldom will it happen that any one rule will exactly fuit with many cafes. And in proportion as the decifions of courts of judicature are multiplied, the law will be loaded with decrees, that may fometimes (though rarely) interfere with each other : either becaufe fucceeding judges may not be apprized of the prior adjudication ; or becaufe they may think differently from their predeceffors ; or becaufe the fame arguments did not occur formerly as at pre-
fent ;
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Fent; or, in fine, becaufe of the natural imbecillity and imperfection that attends all human proceedings. But, wherever this happens to be the cafe in any material points, the legiflature is ready, and from time to time both may, and frequently does, intervene to remove the doubt; and, upon due deliberation had, determines by a declaratory ftatute how the law fhall be held for the future.

WHATEVER inftances therefore of contradiction or uncertainty may have been gleaned from our records, or reports, muft be imputed to the defects of human laws in general, and are not owing to any particular ill conftruction of the Englifh fyftem. Indeed the reverfe is moft ftrictly true. The Englifh law is lefs embarraffed with inconfiftent refolutions and doubtful queftions, than any other known fyftem of the fame extent and the fame duration. I may inftance in the civil law: the text whereof, as collected by Juftinian and his agents, is extremely voluminous and diffufe; but the idle comments, obfcure gloffes, and jarring interpretations grafted thereupon by the learned jurifts, are literally without number. And thefe gloffs, which are mere private opinions of fcholaftic doctors (and not, like our books of reports, judicial determinations of the court) are all of authority fufficient to be vouched and relied on; which muft needs breed great diftraction and confufion in their tribunals. The fame may be faid of the canon law; though the text thereof is not of half the antiquity with the common law of England; and though the more antient any fyftem of laws is, the more it is liable to be perplexed with the multitude of judicial decrees. When therefore a body of laws, of fo high antiquity as the Englifh, is in general fo clear and perfpicuous, it argues deep wifdom and forefight in fuch as laid the foundations, and great care and circumfpection, in fuch as have built the fuperftructure.

BUT is not (it will be afked) the multitude of lawfuits, which we daily fee and experience, an argument againft the clearnefs and certainty of the law itfelf?. By no means: for among the
various
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various difputes and controverfies, which are daily to be met with in the courfe of legal proceedings, it is obvious to obferve how very few arife from obfcurity in the rules or maxims of law. An action fhall feldom be heard of, to determine a queftion of inheritance, unlefs the fact of the defcent be controverted. But the dubious points, which are ufually agitated in our courts, arife chiefly from the difficulty there is of afcertaining the intentions of individuals, in their folemn difpofitions of property; in their contracts, conveyances, and teftaments. It is an object indeed of the utmoft importance in this free and commercial country, to lay as few reftraints as poffible upon the transfer of poffeffions from hand to hand, or their various defignations marked out by the prudence, convenience, or neceffities, or even by the caprice, of their owners: yet to inveftigate the intention of the owner is frequently matter of difficulty, among heaps of entangled conveyances or wills of a various obfcurity. The law rarely hefitates in declaring it's own meaning; but the judges are frequently puzzled to find out the meaning of others. Thus the powers, the intereft, the privileges, and properties of a tenant for life, and a tenant in tail, are clearly diftinguifhed and precifely fettled by law: but, what words in a will fhall conftitute this or that eftate, has occafionally been difputed for more than two centuries paft; and will continue to be difputed as long as the careleffnefs, the ignorance, or fingularity of teftators fhall continue to cloath their intentions in dark or new-fangled expreffions.

BUT, notwithftanding fo vaft an acceffion of legal controverfies, arifing from fo fertile a fund as the ignorance and wilfulnefs of individuals, thefe will bear no comparifon in point of number to thofe which are founded upon the difhonefty, and difingenuity of the parties: by either their fuggefting complaints that are falfe in fact, and thereupon bringing groundlefs actions; or by their denying fuch facts as are true, in fetting up unwarrantable defences. Ex facto oritur jus: if therefore the fact be perverted or mif-reprefented, the law which arife from thence will unavoidably be unjuft or partial. And, in order to prevent this,

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it is neceffary to fet right the fact, and eftablifh the truth contended for, by appealing to fome mode of probation or trial, which the law of the country has ordained for a criterion of truth and falfhood.

THESE modes of probation or trial form in every civilized country the great object of judicial decifions. And experience will abundantly fhew, that above a hundred of our lawfuits arife from difputed facts, for one where the law is doubted of. About twenty days in the year are fufficient, in Weftminfter-hall, to fettle (upon folemn argument) every demurrer or other fpecial point of law that arifes throughout the nation: but two months are annually fpent in deciding the truth of facts, before fix diftinct tribunals, in the feveral circuits of England; exclufive of Middlefex and London, which afford a fupply of caufes much more than equivalent to any two of the largeft circuits.

TRIAL then is the examination of the matter of fact in iffue; of which there are many different fpecies, according to the difference of the fubject, or thing to be tried: of all which we will take a curfory view in this and the fubfequent chapter. For the law of England fo induftrioufly endeavours to inveftigate truth at any rat, that it will not confine itfelf to one, or to a few, manners of trial; but varies it's examination of facts according to the nature of the facts themfeves: this being the one invariable principle purfued, that as well the beft method of trial, as the beft evidence upon that trial, which the nature of the cafe affords, and no other, fhall be admitted in the Englifh courts of juftice.

THE fpecies of trials in civil cafes are feven. By record; by infpection, or examination; by certificate; by witneffes; by wager of battel; by wager of law; and by jury.

I. FIRST then of the trial by record. This is only ufed in one particular inftance: and that is where a matter of record is
pleaded
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pleaded in any action, as a fine, a judgment, or the like; and the oppofite party pleads “nul tiel record,” that there is no fuch matter of record exifting: upon this, iffue is tendered and joined in the following form, “and this he prays may be enquired of by the record, and the other doth the like;” and hereupon the party pleading the record has a day given him to bring it in, and proclamation is made in court for him to “bring forth his record or he fhall be condemned;” and, on his failure, his antagonift fhall have judgment to recover. The trial therefore of this iffue is merely by the record; for, as fir Edward Coke^b obferves, a record or enrollment is a monument of fo high a nature, and importeth in itfelf fuch abfolute verity, that if it be pleaded that there is no fuch record, it fhall not receive any trial by witnefs, jury, or otherwife, but only by itfelf. Thus titles of nobility, as whether earl or no earl, baron or no baron, fhall be tried by the king's writ or patent only, which is matter of record^c. Alfo in cafe of an alien, whether alien friend or enemy, fhall be tried by the league or treaty between his fovereign and ours; for every league or treaty is of record^d. And alfo, whether a manor be held in antient demefne or not, fhall be tried by the record of domefday in the king's exchequer.

II. TRIAL by infpection, or examination, is when for the greater expedition of a caufe, in fome point or iffue being either the principal queftion, or arifing collaterally out of it, but being evidently the object of fenfe, the judges of the court, upon the teftimony of their own fenfes, fhall decide the point in difpute. For, where the affirmative or negative of a queftion is matter of fuch obvious determination, it is not thought neceffary to fummon a jury to decide it; who are properly called in to inform the confcience of the court in refpect of dubious facts: and therefore when the fact, from it's nature, muft be evident to the court either from ocular demonftration or other irrefragable proof, there the law departs from it's ufual refort, the verdict of twelve

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^b I Inft. 117. 260.
^c 6 Rep. 53.
^d 9 Rep. 31.
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S f 2
men,
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men, and relies on the judgment of the court alone. As in cafe of a fuit to reverfe a fine for non-age of the cognizor, or to fet afide a ftatute or recognizance entered into by an infant; here, and in other cafes of the like fort, a writ fhall iffue to the fheriff^e, commanding him that he conftrain the faid party to appear, that it may be afcertained by the view of his body by the king's juftices, whether he be of full age or not; “ut per afpectum corporis fui conftare poterit jufticiariis noftris, fi praedictus A fit plenae aetatis, necne^f.” If however the court has, upon infpection, any doubt of the age of the party, (as may frequently be the cafe) it may proceed to take proofs of the fact; and, particularly, may examine the infant himfelf himfelf upon an oath of voir dire, veritatem dicere, that is, to make true anfwer to fuch queftions as the court fhall demand of him: or the court may examine his mother, his god-father, or the like^g.

IN like manner if a defendant pleads in abatement of the fuit that the plaintiff is dead, and one appears and calls himfelf the plaintiff, which the defendant denies; in this cafe the judges fhall determine by infpection and examination, whether he be the plaintiff or not^h. Alfo if a man be found by a jury an idiot a nativitate, he may come in perfon into the chancery before the chancellor, or be brought there by his friends, to be infpected and examined, whether idiot or not: and if, upon fuch view and enquiry, it appears he is not fo, the verdict of the jury, and all the proceedings thereon, are utterly void and inftantly of no effectⁱ.

ANOTHER inftance in which the trial by infpection may be ufed, is when upon an appeal of maihem, the iffue joined is whether it be maihem or no maihem, this fhall be decided by the court upon infpection, for which purpofe they may call in

.{FS}
^e 9 Rep. 31.
^f This queftion of non-age was formerly, according to Glanvil, (l. 13. c. 15.) tried by a jury of eight men; though now it is tried by infpection.
^g 2 Roll. Abr. 573.
^h 9 Rep. 30.
ⁱ Ibid. 31.
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the
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the affiftance of furgeons^j. And, by analogy to this, in an action of trefpafs for maihem, the court, (upon view of fuch maihem as the plaintiff has laid in his declaration, or which is certified by the judges who tried the caufe to be the fame as was given in evidence to the jury) may encreafe the damages at their own difcretion^k; as may alfo be the cafe upon view of an atrocious battery^l. But then the battery muft likewife be alleged fo certainly in the declaration, that it may appear to be the fame with the battery infpected.

ALSO, to afcertain any circumftances relative to a particular day paft, it hath been tried by an infpection of the almanac by the court. Thus, upon a writ of error from an inferior court, that of Lynn, the error affigned was that the judgment was given on a funday, it appearing to be on 26 February, 26 Eliz. and upon infpection of the almanacs of that year it was found that the 26^th of February in that year actually fell upon a funday: this was held to be a fufficient trial, and that a trial by a jury was not neceffary, although it was an error in fact; and fo the judgment was reverfed^m. But, in all thefe cafes, the judges, if they conceive a doubt, may order it to be tried by jury.

III. THE trial by certificate is allowed in fuch cafes, where the evidence of the perfon certifying is the only proper criterion of the point in difpute. For, when the fact in queftion lies out of the cognizance of the court, the judges muft rely on the folemn averment or information of perfons in fuch a ftation, as affords them the moft clear and competent knowlege of the truth. As therefore fuch evidence (if given to a jury) muft have been conclufive, the law, to fave trouble and circuity, permits the fact to be determined upon fuch certificate merely. Thus, I. If the iffue be whether A was abfent with the king in his army out of the realm in time of war, this fhall be triedⁿ by

.{FS}
^j 2 Roll. Abr. 578.
^k I Sid. 108.
^l Hardr. 408.
^m Cro. Eliz. 227.
ⁿ Litt. §. 102.
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the
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the certificate of the marefchall of the king's hoft in writing under his feal, which fhall be fent to the juftices. 2. If, in order to avoid an outlawry, or the like, it was alleged that the defendant was in prifon, ultra mare, at Bourdeaux, or in the fervice of the mayor of Bourdeaux, this fhould have been tried by the certificate of the mayor; and the like of the captain of Claais^o. But, when this was law^p, thofe towns were under the dominion of the crown of England. And therefore, by a parity of reafon, it fhould now hold that in fimilar cafes, arifing at Jamaica or Minorca, the trial fhould now hold that fhould be by certificate from the governor of thofe iflands. We alfo find^q that the certificate of the queen's meffenger, fent to fummon home a peerefs of the realm, was formerly held a fufficient trial of the contempt in rufufing to obey fuch fummons. 3. For matters within the realm; the cuftoms of the city of London fhall be tried by the certificate of the mayor and aldermen, certified by the mouth of their recorder^r; upon a furmife from the party alleging it, that the cuftom ought to be thus tried: elfe it muft be tried by the country^s. As, the cuftom of diftributing the effects of freemen deceafed; of enrolling apprentices; or that he who is free of one trade may ufe another; if any of thefe, or other fimilar, points come in iffue. But this rule admits of an exception, where the corporation of London is party, or interefted, in the fuit; as in an action brought for a penalty inflicted by the cuftom: for there the reafon of the law will not endure fo partial a trial; but this cuftom fhall be determined by a jury, and not by the mayor and aldermen, certifying by the mouth of their recorder^t. 4. In fome cafes, the fheriff of London's certificate fhall be the final trial: as if the iffue be, whether the defendant be a citizen of London or a foreigner^u, in cafe of privilege pleaded to be fued only in the city courts. Of a nature fomewhat fimilar to which is the trial of the privilege of the univerfity, when the chancellor claims cognizance of the caufe, be-

.{FS}
^o 9 Rep. 31.
^p 2 Roll. Abr. 583.
^q Dyer. 176, 177.
^r Co. Litt. 74. 4 Burr. 248.
^s Bro. Abr. t. trial. pl. 96.
^t Hop. 85.
^u Co. Litt. 74.
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caufe
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caufe one of the parties is a privileged perfon. In this cafe, the charters, confirmed by act of parliament, direct the trial of the queftion, whether a privileged perfon or no, to be determined by the certificate and notification of the chancellor under feal; to which it hath alfo been ufual to add an affidavit of the fact: but if the parties be at iffue between themfelves, whether A is a member of the univerfity or no, on a plea of privilege, the trial fhall be then by jury, and not by the chancellor's certificate^u; becaufe the charters direct only that the privilege be allowed on the chancellor's certificate, when the claim of cognizance is made by him, and not where the defendant himfelf pleads his privilege: fo that this muft be left to the ordinary courfe of determination. 5. In matters of ecclefiaftical jurifdiction, as marriage, and of courfe general baftardy, and alfo excommunication, and orders, thefe, and other like matters, fhall be tried by the bifhop's certificate^w. As if it be pleaded in abatement, that the plaintiff is excommunicated, and iffue is joined thereon; or if a man claims an eftate by defcent, and the tenant alleges the demandant to be a baftard; or if on a writ of dower the heir pleads no marriage; or if the iffue in a quare impedit be, whether or no the church be full by inftitution; all thefe being matters of mere ecclefiaftical cognizance, fhall be tried by certificate from the ordinary. But in an action on the cafe for calling a man baftard, the defendant having pleaded in juftification that the plaintiff was really fo, this was directed to be tried by a jury^x: becaufe, whether the plaintiff be found either a general or fpecial baftard, the juftification will be good; and no queftion of fpecial baftardy fhall be tried by the bifhop's certificate, but by a jury^y. For a fpecial baftard is one born, before marriage, of parents who afterwards intermarry: which is baftardy by our law, though not by the ecclefiaftical. It would therefore be improper to refer the trial of that queftion to the bifhop; who, whether the child be born before or after marriage, will be fure

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^v 2 Roll. Abr. 583.
^w Co. Litt. 74.
^x Hob. 179.
^y Dyer. 79.
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to return or certify him legitimate^z. Ability of a clerk prefented^a, admiffion, inftitution, and deprivation of a clerk, fhall alfo be tried by certificate from the ordinary or metropolitan, becaufe of thefe he is the moft competent judge^b: but induction fhall be tried by a jury, becaufe it is a matter of public notoriety^c, and is likewife the corporal inveftiture of the temporal profits. Refignation of a benefice may be tried in either way^d; but it feems moft properly to fall within the bifhop's cognizance. 6. The trial or all cuftoms and practice of the courts fhall be by certificate from the proper officers of thofe courts refpectively; and, what return was made on a writ by the fheriff or under-fheriff, fhall be only tried by his own certificate^e. And thus much for thofe feveral iffues, or matters of fact, which are proper to be tried by certificate.

IV. AFOURTH fpecies of trial is that by witneffes, per teftes, without the intervention of a jury. This is the only method of trial known to the civil law; in which the judge is left to form in his own breaft his fentence upon the credit of the witneffes examined: but it is very rarely ufed in our law, which prefers the trial by jury before it in almoft every inftance. Save only, that when a widow brings a writ of dower, and the tenant pleads that the hufband is not dead; this, being looked upon as a dilatory plea, is, in favour of the widow and for greater expedition, allowed to be tried by witneffes examined before the judges: and fo, faith Finch^f, fhall no other cafe in our law. But fir Edward Coke^g mentions fome others: as, to try whether the tenant in a real action was duly fummoned, or the validity of a challenge to a juror: fo that Finch's obfervation muft be confined to the trial of direct and not collateral iffues. And in every cafe fir Edward Coke lays it down, that the affirmative muft be proved by two witneffes at the leaft.

.{FS}
^z See introd. to the great charter. edit. Oxon. fub anno 1253.
^a See book I. Ch. II.
^b 2 Inft. 632. Show. Parl. C. 88.
^c Dyer. 229.
^d 2 Roll. Abr. 583.
^e 9 Rep. 31.
^f L. 423.
^g I Inft. 6.
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V THE
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V. THE next fpecies of trial is of great antiquity, but much difufed; though ftill in force if the parties chufe to abide by it: I mean the trial by wager of battel. This feems to have owed it's original to the military fpirit of our anceftors, joined to a fuperftitious frame of mind; it being in the nature of an appeal to providence, under an apprehenfion and hope (however prefumptuous and unwarrantable) that heaven would give the victory to him who had the right. The decifion of fuits, by this appeal to the God of battels, is by fome faid to have been invented by the Burgundi, one of the northern or German clans that planted themfelves in Gaul. And it is true, that the firft written injunction of judiciary combats that we meet with, is in the laws of Gundebald, A. D. 501, which are preferved in the Burgundian code. Yet it does not feem to have been merely a local cuftom of this or that particular tribe, but to have been the common ufage of all thofe warlike people from the earlieft times^h. And it may alfo feem from a paffage in Velleius paterculus^j, that the Germans, when firft they became known to the Romans, were wont to decide all contefts of right by the fword: for when Quintilius Varus endeavoured to introduce among them the Roman laws and method of trial, it was looked upon (fays the hiftorian) as a “novitas incognitae, ut folita armis decerni, jure terminarentur.” And among the antient Goths in Sweden we find the practice of judiciary duels eftablifhed upon much the fame footing as they formerly were in our own countryⁱ.

THIS trial was introduced into England among other Norman cuftoms by William the conqueror; but was only ufed in three cafes, one military, one criminal, and the third civil. The firft in the court-martial, or court of chivalry and honour^k: the fecond in appeals of felony^l, of which we fhall fpeak in the next book: and the third upon iffue joined in a writ of right, the laft and

.{FS}
^h Seld. of duels. c. 5.
ⁱ l. 2. c. 118.
^j Stiernh. de jure Sueon. l. I. c. 7.
^k Co. Litt. 261.
^l 2 Hawk. P. C. 45.
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moft folemn decifion of real property. For in writs of right the jus proprietatis, which is frequently a matter of difficulty, is in queftion; but other real actions being merely queftions of the jus poffeffionis, which are ufually more plain and obvious, our anceftors did not in them appeal to the decifion of providence. Another pretext for allowing it, upon thefe final writs of right, was alfo for the fake of fuch claimants as might have the true right, but yet by the death of witneffes or other defect of evidence be unable to prove it to a jury. But the moft curious reafon of all is given in the mirror^m, that it is allowable upon warrant of the combat between David for the people of Ifrael of the one party, and Goliah for the Philiftines of the other party: a reafon, which pope Nicholas I very ferioufly decides to be inconclufiveⁿ. Of battel therefore on a writ of right^o we are now to fpeak; and although the writ of right itfelf, and of courfe this trial thereof, be at prefent difufed; yet, as it is law at this day, it may be matter of curiofity, at leaft, to enquire into the forms of this proceeding, as we may gather them from antient authors^p.

THE laft trial by battel that was joined in a civil fuit (though there was afterwards one in the court of chivalry in the reign of Charles the firft^q; and another tendered, but not joined, in a writ of right upon the northern circuit in 1638) was in the thirteenth year of queen Elizabeth, as reported by fir James Dyer^r, and was held in Tothill fields Weftminfter, “non fine magna juris confutorum perturbatione,” faith fir Henry Spelman^s, who was himfelf a witnefs of the ceremony. The form, as appears from the authors before cited, is as follows.

WHEN the tenant in a writ of right pleads the general iffue, viz. that he hath more right to hold, than the demandant hath

.{FS}
^m c. 3. §. 23.
ⁿ Dccret. Part. 2. cauf. 2. qu. 5. c. 22.
^o Append. N^o. I. §. 5.
^p Glanvil. l. 2. c. 3. vet. nat. brev. fol. 2. Nov. Narr. tit. Droit patent. fol. 231. (edit. 1534.) Yearbook. 29 Edw. III. 12. Finch. L. 421. Dyer. 301. 2 Inft. 247.
^q Rufhw. coll. vol. 2. part. 2. fol. 112.
^r 301.
^s Gioff. 103.
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to recover; and offers to prove it by the body of his champion, which tender is accepted by the demandant; the tenant in the firft place muft produce his champion, who, by throwing down his glove as a gage or pledge, thus wages or ftipulates battel with the champion of the demandant; who, by taking up the gage or glove, ftipulates on his part to accept the challenge. The reafon why it is waged by champions, and not by the parties themfelves, in civil actions, is becaufe, if any party to the fuit dies, the fuit muft abate and be at an end for the prefent; and therefore no judgment could be given for the lands in queftion, if either of the parties were flain in battel^t: and alfo that no perfon might claim an exemption from this trial, as was allowed in criminal cafes, where the battel was waged in perfon.

A PICEE of ground is then in due time fet out, of fixty feet fquare, enclofed with lifts, and on one fide a court erected for the judges of the court of common pleas, who attend there in their fcarlet robes; and alfo a bar is prepared for the learned ferjeants at law. When the court fits, which ought to be by funrifing, proclamation is made for the parities, and their champions; who are introduced by two knights, and are dreffed in a fuit of armour, with red fandals, barelegged from the knee downwards, bareheaded, and with bare arms to the elbows. The weapons allowed them are only batons, or ftaves, of an ell long, and a four-cornered leather target; fo that death very feldom enfued this civil combat. In the court military indeed they fought with fword and lance, according to Spelman and Rufhworth; as likewife in France only villeins fought with the buckler and baton, gentlemen armed at all points. And upon this, and other circumftances, the prefident Montefquieu^u hath with great ingenuity not only deduced the impious cuftom of private duels upon imaginary points of honour, but hath alfo traced the heroic madnefs of knight errantry, from the fame original of judicial combats. But to proceed.

.{FS}
^t Co. Litt. 294. Dyverfite des courts. 304.
^u Sp. L. b. 28. c. 20. 22.
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T t 2
WHEN
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WHEN the champions, thus armed with batons, arrive within the lifts or place of combat, the champion of the tenant then takes his adverfary by the hand, and makes oath that the tenements in difpute are not the right of the demandant; and the champion of the demandant, then taking the other by the hand, fwears in the fame manner that they are; fo that each champion is, or ought to be, thoroughly perfuaded of the truth of the caufe he fithts for. Next an oath againft forcery and enchantment is to be taken by both the champions, in this or a fimilar form; hear this, ye juftices, that I have this day neither eat, drank, nor have upon me, neither bone, ftone, ne grafs; nor any inchantment, forcery, or witchcraft, whereby the law of God may be abafed, or the law of the devil exalted. So help me God and his faints.”

THE battel is thus begun, and the combatants are bound to fight till the ftars appear in the evening: and, if the champion of the tenant can defend himfelf till the ftars appear, the tenant fhall prevail in his caufe; for it is fufficient for him to maintain his ground, and make it a drawn battel, he being already in poffeffion: but, if victory declares itfelf for either party, for him is judgment finally given. This victory may arife, from the death of either of the champions: which indeed hath rarely happened; the whole ceremony, to fay the truth, bearing a near refemblance to certain rural athletic diverfions, which are probably derived from this original. Or victory is obtained, if either champion proves recreant, that is, yields, and pronounces the horrible word of craven; a word of difgrace and obloquy, rather than of any determinate meaning. But a horrible word it indeed is to the vanquifhed champion: fince as a punifhment to him for forfeiting the land of his principal by pronouncing that fhameful word, he is condemned, as a recreant, amittere liberam legem, that is, to become infamous and not be accounted liber et legalis bomo; being fuppofed by the event to be proved
forfworn,
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forfworn, and therefore never to be put upon a jury or admitted as a witnefs in any caufe.

THIS is the form of a trial by battel; a trial which the tenant, or defendant in a writ of right, has it in his election at this day to demand; and which was the only decifion of fuch writ of right after the conqueft, till Henry the fecond by confent of parliament introduced the grand affife^w, a peculiar fpecies of trial by jury, in concurrence therewith; giving the tenant his choice of either the one or the other. Which example, of difcountenancing thefe judicial combats, was imitated about a century afterwards in France, by an edict of Louis the pious, A. D. 1260, and foon after by the reft of Europe. The eftablifhment of this alternative, Glanvil, chief juftice to Henry the fecond, and probably his advifer herein, confiders as a moft noble improvement, as in fact it was, of the law^x.

VI. A SIXTH fpecies of trial is by wager of law, vadiatio legis, as the foregoing is called wager of battel, vadiatio duelli: becaufe, as in the former cafe the defendant gave a pledge, gage, or vadium, to try by battel; fo here he was to put in fureties or vadios, that at fuch a day he will make his law, that is, take the benefit which the law has allowed him^y. For our anceftors confidered, that there were many cafes where an innocent man, of good credit, might be overborne by a multitude of falfe witneffes; and therefore eftablifhed this fpecies of trial, by the oath of the defendant himfelf: for if he will abfolutely fwear himfelf not chargeable, and appears to be a perfon of re-

.{FS}
^w Append. N^o. I. §. 6.
^x Eft autem magna affifa regale quoddam beneficium, clementia principis, de confilio procerum, populis indultum; quo vitae bominum, et ftatus integritati tam jalubriter conjulitur, ut, retinendo qued quis poffides in libero tenemento joli, duelli cafum declinare poffint bomines ambiguum. Ac per boc contingit, infperatae et praematur ae mortis ultimum evadere fupplicium, vel faltem perennis infamiae opprobrium illius infefti et inverecundi verbi, quod in are victi turpiter fonat, condecutivum. Ex aequitate item maxima prodita eft legalis ifta inftitutio. Jus enim, quod poft multas et longas dilationes vix evincitur per duellum, per beneficium iftius convtitutionis commodius et acceleratius expeditur. (l. 2. c. 7.)
^y Co. Litt. 295.
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putation,
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putation, he fhall go free and for ever acquitted of the debt, or other caufe of action.

THIS method of trail is not only to be found in the codes of almoft all the northern nations, that broke in upon the Roman empire and eftablifhed petty kingdoms upon it ruins^z; but it's original may alfo be traced as far back as the Mofaical law. “If a man deliver unto his neighbour an afs, or an ox, or a fheep, or any beaft, to keep; and it die, or be hurt, or driven away, no man feeing it; then fhall an oath of the Lord between them both, that he hath not put his hand unto his neighbour's goods; and the owner of it fhall accept thereof, and he fhall not make it good^a.” We fhall likewife be able to difcern a manifeft refemblance, between this fpecies of trial, and the canonical purgation of the popifh clergy, when accufed of any capital crime. The defendant or perfon accufed was in both cafes to make oath of his own innocence, and to produce a certain number of compurgators, who fwore they believed his oath. Somewhat fimilar alfo to this is the facramentum decifionis, or the voluntary and decifive oath of the civil law^b; where one of the parties to the fuit, not being able to prove his charge, offers to refer the decifion of the caufe to the oath of his adverfary: which the adverfary was bound to accept, or tender the fame propofal back again; otherwife the whole was taken as confeffed by him. But, though a cuftom fomewhat fimilar to this prevailed formerly in the city of London^c, yet in general the Englifh law does not thus, like the civil, reduce the defendant, in cafe he is in the wrong, to the dilemma of either confeffion or perjury: but is indeed fo tender of permitting the oath to be taken, even upon the defendant's own requeft, that it allows it only in a very few cafes; and in thofe it has alfo devifed other collateral remedies for the party injured, in which the defendant is excluded from his wager of law.

.{FS}
^z Sp. L. b. 28. c. 13. Stiernhook de jure Sueonum. L. I. c. 9. Feud. l. I. t. 4. 10. 28.
^a Exod. xxii. 10.
^b Cod. 4. I. 12.
^c Bro. Abr. t. ley gager. 77.
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THE
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THE manner of waging and making law is this. He that has waged, or given fecurity, to make his law, brings with him into court eleven of his neighbours: a cuftom, which we find particularly defcribed fo early as in the league between Alfred and Guthrun the Dane^d; for by the old Saxon conftitution every man's credit in courts of law depended upon the opinion which his neighbours had of his veracity. The defendant then, ftanding at the end of the bar, is admonifhed by the judges of the nature and danger of a falfe oath^e. And if he ftill perfifts, he is to repeat this or the like oath: “ hear this, ye juftices, that I do not own unto Richard Jones the fum of ten pounds, nor any penny thereof, in manner and form as the faid Richard hath declared againft me. So help me God.” And thereupon his eleven neighbours or compurgators fhall avow upon their oaths, that they believe in their confciences that he faith the truth; fo that himfelf muft be fworn de fidelitate, and the eleven de credulitate^f. It is held indeed by later authorities^g that fewer than eleven compurgators will do: but fir Edward Coke is pofitive that there muft he this number; and his opinion not only feems founded upon better authority, but alfo upon better reafon: for, as wager of law is equivalent to a verdict in the defendant's favour, it ought to be eftablifhed by the fame or equal teftimony, namely by the oath of twelve men. And fo indeed Glanvil expreffes it^h, “jurabit duodecima manu:” and in 9 Hen. III. when a defendant in an action of debt waged his law, it was adjudged by the court “quod defendat fe duodecima manu.” Thus too, in an author of the age of Edward the firft^k, we read, “adjudicabitur reus ad legem fuam duodecima manu.” And the antient treatife, entitled dyverfite des courts, expreffly confirms fir Edward Coke's opinion^l.

.{FS}
^d cap. 3. Wilk. LL. Angl. Sax.
^e Salk. 682.
^f Co. Litt. 295.
^g 2 Ventr. 171.
^h l. I. c. 9.
ⁱ Fitzh. Abr. t. ley. 78.
^k Hengbem magna. c. 5.
^l Il covicnt aver' orc lay xi maynz de juror aue luy, fc. Que ilz. Entende en lour conveiens que il difoyt voier. (fol. 306.)
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IT muft be however obferved, that fo long as the cuftom continued of producing the fecta, the fuit, or witneffes to give probability to the plaintiff's demand, (of which we fpoke in a foriner chapter ) the defendant was not put to wage his law, unlefs the fecta was firft produced, and their teftimony was found confiftent. To this purpofe fpeaks magna carta, c. 28. “nullus ballivus de caetero ponat aliquem ad legem manifeftam,” (that is, wager of battel) “nec ad juramentum,” (that is, wager of law) “fimplici loquela fua,” (that is, merely by his count or declaration) “fine teftibus fidelibus ad hoc inductis.” Which Fleta thus explains^m: “fi petens fectam produxerit, et concordes inveniantur, tunc reus poterit vadiare legem fuam contra petentem et contra fectam fuam prolatam; fed fi fecta variabilis inveniatur, extunc non tenebitur legem vadiare contra fectam illam.” It is true indeed, that Fleta expreffly limits the number of compurgators to be only double to that of the fecta produced; “ut fi duos vel tres teftes produxerit ad probandum, oportet quod defenfio fiat per quatuor vel per fex; ita quod pro quolibet tefte duos producat juratores, ufque ad duodecim:” fo that according to this doctrine the eleven compurgators were only to be produced, but not all of them fworn, unlefs the fecta confifted of fix. But, though this might poffibly be the rule till the production of the fecta was generally difufed, fince that time the duodecima manus feems to have been generally requiredⁿ.

IN the old Swedifh or Gothic conftitution, wager of law was not only permitted, as it ftill is in criminal cafes, unlefs the fact be extremely clear againft the prifoner^o; but was alfo abfolutely required, in many civil cafes: which an author of their own^p very juftly charges as being the fource of frequent perjury. This, he tells us, was owing to the popifh ecclefiaftics, who introduced this method of purgation from their canon law; and, having fown a plentiful crop of oaths in all judicial proceedings, reaped

.{FS}
^m l. 2. c. 63.
ⁿ Bro. Abr. t. ley gager. 9.
^o Mod. Un. Hift. xxxiii. 22.
^p Stiernhook de jure Sueonum. L. I. c. 9.
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afterwards an ample harveft of perjuries: for perjuries were punifhed in part by pecuniary fines, payable to the coffers of the church. But with us in England wager of law is never required; and is then only admitted, where an action is brought upon fuch matters as may be fuppofed to be privately tranfacted between the parties, and wherein the defendant may be prefumed to have made fatisfaction without being able to prove it. Therefore it is only in actions of debt upon fimple contract, or for an amercement in actions of detinue, and of account, where the debt may have been paid, the goods reftored, or the account ballanced, without any evidence of either; it is only in thefe actions, I fay, that the defendant is admitted to wage his law^q: fo that wager of law lieth not, when there is any fpecialty, as a bond or deed, to charge the defendant, for that would be cancelled if fatisfied; but when the debt groweth by word only. Nor doth it lie in an action of debt, for arrears of an account, fettled by auditors in a former action^r. And by fuch wager of law (when admitted) the plaintiff is perpetually barred; for the law, in the fimplicity of the antient times, prefumed that no one would forfwear himfelf, for any worldly thing^s. Wager of law however lieth in a real action, where the tenant alleges he was not legally fummoned to appear, as well as in mere perfonal contracts^t.

A MAN outlawed, attainted for falfe verdict, or for confpiracy or perjury, or otherwife become infamous, as by pronouncing the horrible word in a trial by battel, fhall not be permitted to wage his law. Neither fhall an infant under the age of twenty one, for he cannot be admitted to his oath; and therefore on the other hand, the courfe of juftice fhall flow equally, and the defendant, where an infant is plaintiff, fhall not wage his law. But a feme-covert, when joined with her hufband, may be admitted to wage her law: and an alien fhall do it in his own language^u.

.{FS}
^q Co. Litt. 295.
^r 10 Rep. 103.
^s Co. Litt. 295.
^t Finch. L. 423.
^u Co. Litt. 295.
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U u

IT
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IT is moreover a rule, that where a man is compellable by law to do any thing, whereby he becomes creditor to another, the defendant in that cafe fhall not be admitted to wage his law: for then it would be in the power of any bad man to run in debt firft, againft the inclinations of his creditor, and afterwards to fwear it away. But where the plaintiff hath given voluntary credit to the defendant, there he may wage his law; for by giving him fuch credit, the plaintiff has himfelf borne teftimony that he is one whofe character may be trufted. Upon this principle it is, that in an action of debt againft a prifoner by a gaoler for his victuals, the defendant fhall not wage his law: for the gaoler cannot refufe the prifoner, and ought not to fuffer him to perifh for want of fuftenance. But otherwife it is for the board or diet of a man at liberty. In an action of debt brought by an attorney for his fees, the defendant cannot wage his law, becaufe the plaintiff is compellable to be his attorney. And fo, if a fervant be retained according to the ftatute of labourers, 5 Eliz. c. 4. which obliges all fingle perfons of a certain age, and not having other vifible means of livelyhood, to go out to fervice; in an action of debt for the wages of fuch a fervant, the mafter fhall not wage his law, becaufe the plaintiff was conpellable to ferve. But it had been otherwife, had the hiring been by fpecial contract, and not according to the ftatute^w.

IN no cafe where a contempt, trefpafs, deceit, or any injury with force is alleged againft the defendant, is he permitted to wage his law^x: for it is impoffible to prefume he has fatisfied the plaintiff his demand in fuch cafes, where damages are uncertain and left to be affeffed by a jury. Nor will the law truft the defendant with an oath to difcharge himfelf, where the private injury is coupled as it were with a public crime, that of force and violence; which would be equivalent to the purgation oath of the civil law, which ours has fo juftly rejected.

.{FS}
^w Co. Litt. 295.
^x Ibid. Raym. 286.
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EXECUTORS and adminiftrators, when charged for the debt of the deceafed, fhall not be admitted to wage their law^y: for no man can with a fafe confcience wage law of another man's contract; that is, fwear that he never entered into it, or at leaft that he privately difcharged it. The king alfo has his prerogative; for, as all wager of law imports a reflection on the plaintiff for difhonefty, therefore there fhall be no fuch wager on actions brought by him^z. And this prerogative extends and is communicated to his debtor and accomptant; for, on a writ of quo minus in the exchequer for a debt on fimple contract, the defendant is not allowed to wage his law^a.

THUS the wager of law never permitted, but where the defendant bore a fair and unreproachable character; and it alfo was confined to fuch cafes where a debt might be fuppofed to be difcharged, or fatisfaction made in private, without any witneffes to atteft it: and many other prudential reftrictions accompanied this indulgence. But at length it was confidered, that (even under all it's reftrictions) it threw too great a temptation in the way of indigent or profligate men: and therefore by degrees new remedies were devifed, and new forms of action were introduced, wherein no defendant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardinefs of his debtor's confcience, unlefs he voluntarily chufes to rely on his adverfary's veracity, by bringing an obfolete, inftead of a modern, action. Therefore one fhall hardly hear at prefent of an action of debt brought upon a fimple contract; that being fupplied by an action of trefpafs on the cafe for the breach of a promife or affumpfit; wherein, though the fpecific debt cannot be recovered, yet damages may, equivalent to the fpecific debt. And, this being an action of trefpafs, no law can be waged therein. So, inftead of an action of detinue to recover the very thing detained, an action of trefpafs on the cafe in trover and

.{FS}
^y Finch. L. 424.
^z Ibid. 425.
^a Co. Litt. 295.
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U u 2
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converfion is ufually brought; wherein, though the horfe or other fpecific chattel cannot be had, yet the defendant fhall pay damages for the converfion, equal to the value of the chattel; and for this trefpafs alfo no wager of law is allowed. In the room of actions of account a bill in equity is ufually filed: wherein, though the defendant anfwers upon his oath, yet fuch oath is not conelufive to the plaintiff; but he may prove every article by other evidence, in contradiction to what the defendant has fworn. So that wager of law is quite out of ufe, being avoided by the mode of bringing the action; but ftill it is not out of force. And therefore, when a new ftatute inflicts a penalty, and gives an action of debt for recovering it, it is ufual to add, in which no wager of law fhall be allowed: otherwife an hardy delinquent might efcape any penalty of the law, by fwearing he had never incurred, or elfe had difcharged it.

THESE fix fpecies of trials, that we have confidered in the prefent chapter, are only had in certain fpecial and eccentrical cafes; where the trial by the country, per pais, or by jury, would not be fo proper or effectual. In the next chapter we fhall confider at large the nature of that principal criterion of truth in the law of England.
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