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or an ox, or a sheep, or any beast, to keep; and it die, or be bun, or driven sway, no man seeing it; then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods; and the owner of it shall accept thereof, and he shall not make it good."(a) We shall likewise bo able to discern a manifest resemblance between this species of trial, and the canonical purgation of the popish clergy when accused of any capital crime. The defendant or person accused was in both cases to make oath of his own innocence, and to produce a certain number of compurgators, who swore they believed his oath. Somewhat similar also to this is the sacramentum decisionis, or the voluntary and decisive oath of the civil law ;(b) where one of the parties to the suit, not being able to prove his charge, offers to refer the decision of the cause to the oath of his adversary; which the adversary was bound to accept, or tender the same proposal back again; otherwise the whole was taken as confessed by him. But, though a custom somewhat similar to this prevailed formerly in the city of London,(c) yet in general the English law does not thus, like the civil, reduce the defendant, in case he is in the wrong, to the dilemma of either confession or perjury: but is indeed so tender of permitting the oath to be taken, even upon the defendant's own request, that it allows it only in a very few cases, and in those it has also devised other collateral remedies for the party injured, in which the defendant is excluded from his wager of law.
♦The manner of waging and making law is this. He that has wa^ed, r*3i9 or given security, to make his law, brings with him into court eleven of his neighbours: a custom which we find particularly described so early as ix the league between Alfred and Guthrun the Dane ;(d) for by the old Saxon constitution every man's credit in courts of law depended upon the opinion which his neighbours had of his veracity. The defendant, then standing at tho end of the bar, is admonished by the judges of the nature and danger of a false oath.(e) And if he still persists, he is to repeat this or the like oath :—" Hear this, ye justices, that I do not owe unto Richard Jones the sum of ten pounds, nor any penny thereof, in manner and form as the said Richard hath declared against me. So help me God." And thereupon his eleven neighbours, or compurgators, shall avow upon their oaths that they believe in their consciences that he saith truth; so that himself must be sworn de fidelitate, and the eleven de eredulitate.(f) It is held indeed by later authorities,^) that fewer than eleven compurgators will do: but Sir Edward Coke is positive that there must be this number; and his opinion not only seems founded upon better authority, but also upon better reason: for, as wager of law is equivalent to a verdict in the defendant's favour, it ought to be established by the same or equal testimony, namely, by the oath of twelve men. And so indeed Glanvil expresses it,(A) "jurabit duodecimo, tnanu:" and in 9 Henry III., when a defendant in an action of debt waged his law, it was adjudged by the court" quod defendat se duodecimo. manu."(i) Thus, too, in an author of the age of Edward the First,(/r) we read, "adjudicabitur reus ad legem suam duodecimo manu." And the antient treatise, entitled, Dyversite des courts, expressly confirms Sir Edward Coke's opinion.(J)
*It must be however observed, that so long as the custom continued r*<>44 of producing the secta, the suit, or witnesses to give probability to the *■ plaintiff's demand, (of which we spoke in a former chapter,) the defendant was not put to wage his law unless the secta was first produced and their testimony was found consistent. To this purpose speaks magna carta, c. 28. "Nullus baU livus de (xetero ponat aliquem ad legem manifestam," (that is, wager of battle,) •• nec ad juramentum," (that is, wager of law,) " simplici loquela sua," (that is, merely by his count or declaration,) "sine testibus fidelibus ad hoc inductis." Which Fleta thus explains :(m) "si petens sectam produxerit, et Concordes inveniantur, tunc reus poterit vadiare legem suam contra petentem et contra sectam suam prolatam; sed si
secta variabilis invematur, extunc non tenebitur legem vadiare contra sectam Ulam.' It is true, indeed, that Fleta expressly limits the number of compurgators to be only double to that of the sector produced; "ut si duos vel tres testes produxerit ad probandum, oportet quod defensio fiat per quatuor vel per sex; ita quod pro ca libet teste duos producat juratores, usque ad duodecim:" so that according to this doctrine the eleven compurgators were only to be produced, but not all of them sworn, unless the sector consisted of six. But though this might possibly be the rule till the production of the sector was generally disused, since that time the duodecimo, mantis seems to have been generally required, (n)
In the old Swedish or Gothic constitution, wager of law was not only permitted, as it still is in criminal cases, unless the fact be extremely clear against the prisoner,(o) but was also absolutely required, in many civil cases: which an author of their own(p) very justly charges as being the source of frequent perjury. This, he tells us, was owing to the popish ecclesiastics, who introduced this method of purgation from their canon law, and, having sown a plentiful *3451 cr0P of oatns *m ju^icial proceedings, reaped afterwards an ample J harvest of perjuries: for perjuries were punished 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 such matters as may be supposed to be privately transacted between the parties, and wherein the defendant may be presumed to have made satisfaction without being able to prove it. Therefore it is only in actions of debt upon simple contract, or for amercement,' in actions of detinue, and of account, where the debt may have been paid, the goods restored, or the account balanced, without any evidence of either; it is only in these actions, I say, that the defendant is admitted to wage his law :(q) so that wager of law lieth not, when there is any specialty (as a bond or deed) to charge the defendant, for that would be cancelled, if satisfied; but when the debt groweth by word only: nor doth it lie in an action of debt, for arrears of an account settled by auditors in a former action.(r) And by such wager of law (when admitted) the plaintiff is perpetually barred; for the law, in the simplicity of the antient times, presumed that no one would forswear himself for any worldly thing.(s) Wager of law however, lieth in a real action, where the tenant alleges he was not legally summoned to appear, as well as in mere personal contracts. (<)
A man outlawed, attainted for false verdict, or for conspiracy or perjury, or otherwise become infamous, as by pronouncing the horrible word in a trial by battle, shall not be permitted to wage his law. Neither shall an infant under the age of twenty-one, for he cannot be admitted to his oath; and therefore, on the other hand, the course of justice shall flow equally, and the defendant, where an infant is plaintiff, shall not wage his law. But a feme-covert, when joined with her husband, may be admitted to wage her law, and an alien shall do it in his own language.(u)
*'-MSl *8 moreover a rule, that where a man is compellable by law to do
J any thing whereby he becomes creditor to another, the defendant in that case shall not be permitted to wage his law; for then it would be in the power of any bad man to run in debt first against the inclinations of his creditor, and afterwards to swear it away. But where the plaintiff hath given voluntary credit to the defendant, there he may wage his law; for by giving him such credit the plaintiff has himself borne testimony that he is one whose character may be trusted. Upon this principle it is that in an action of debt against a prisoner by a gaoler for his victuals, the defendant shall not wage his law; for tho gaoler cannot refuse the prisoner, and ought not to suffer him to perish for want of sustenance. But otherwise 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
* In a court not of record; for if the amercement were imposed by a court of record, '.he defendant could not wage his law. Co. Litt. 295, a.—Coleridge.
wage his law, because the plaintiff is compellable to be his attorney. And so, if a servant be retained according to the statute of labourers, 5 Eliz. c 4, which obliges all single persons of a certain age, and not having other visible means of livelihood, to go out to service; in an action of debt for the wages of such a servant the master shall not wage his law, because the plaintiff was compellable to serve. But it had been otherwise had the hiring been by special contract, and not according to the statute.(ie)
In no case where a contempt, trespass, deceit, or any injury with force is alleged against the defendant, is he permitted to wage his law :(x) for it is impossible to presume he has satisfied the plaintiff his demand in such cases where damages are uncertain and left to be assessed by a jury. Nor will the law trust the defendant with an oath to discharge himself 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 so justly rejected.
*Executors and administrators, when charged for the debt of the de- r*o±f ceased, shall not be admitted to wage their law :(y) for no man can with a safe conscience wage law of another man's contract; that is, swear that he never entered into it, or at least that he privately discharged it. The king also has his prerogative; for as all wager of law imports a reflection on the plaintiff for dishonesty, therefore there shall be no such wager on actions brought by him.(2) 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 simple contract, the defendant is not allowed to wager his law.(a)
Thus the wager of law was never permitted but where the defendant bore a fair and unreproachable character: and it also was confined to such cases where a debt might be supposed to be discharged, or satisfaction made in private, without any witnesses to attest it: and many other prudential restrictions accompanied this indulgence. But at length it was considered that (even under all its restrictions) it threw too great a temptation in the way of indigent or profligate men; and therefore, by degrees, new remedies were devised, 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 hardiness of his debtor's conscience, unless he voluntarily chooses to rely on his adversary's veracity by bringing an obsolete instead of a modern action. Therefore, one shall hardly hear at present of an action of debt brought upon a simple contract; that being supplied by an action of trespass on the case for tho breach of a promise, or assumpsit; wherein, though the specific debt cannot be recovered, yet damages may, equivalent to the specific debt. And, this being an action of trespass, no law can be waged therein. So, instead of an action of (tetinue to recover the very thing detained, an action of trespass on the case in trover and conversion is usually brought; *wherein, though the horse r*Q4« or other specific chattel cannot be had, yet the defendant shall pay L damages for the conversion equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account, a bill in equity is usually filed, wherein, though the defendant answers, upon his oath, yet such oath is not conclusive to the plaintiff, but he may prove every article by other evidence, in contradiction to what the defendant has sworn. So that wager of law is quite out of use, being avoided by the mode of bringing the action; but still it is not out of force. And therefore, when a new statute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, in which no wager of law shall be allowed: otherwise a hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it.
These six ipecies of trials that we have considered in the present chapter are only had in certain special and eccentrical cases; where the trial by the
'•) Finch, L. $23.
country, per pais, or by jury would not be so proper or effectual. In the next chapter we shall consider at large the nature of that principal criterion of truth in the law of England.
OF THE TRIAL BY JURY.
*3491 *the subject of our next inquiries will be the nature and method of J the trial by jury; called also the trial per pais, or by the country: a trial that hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is that they were in use among the earliest Saxon colonies, their institution being ascribed by bishop Nicholson(a) to Woden himself, their great legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feodal system, as in Germany, France, and Italy; who had all of them a tribunal composed of twelve good men and true, " boni homines," usually the vassals or tenants of the lord, being the equals or peers of the parties litigant; and, as the lord's vassals judged each other in the lord's court, so the king's vassals, or the lords themselves, judged each other in the king's court.(6) In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention.(c) D ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Begner, king of Sweden and Denmark, who was cotemporary with our king Egbert. Just as we are apt to impute *3501 'nven^on of th'8' anc* some *other pieces of juridical polity, to the J superior genius of Alfred the Great; to whom, on account of his having done much, it is usual to attribute every thing; and as the tradition of antient Greece placed to the account of their own Hercules whatever achievement was performed superior to the ordinary prowess of mankind. Whereas the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other.1 Its establishment however and use, in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battle, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In magna carta it is more than once insisted on as the principal bulwark of our liberties; but especially by chap. 29, that no freeman shall be hurt in either his person or property; "nisi per legale judicium parium suorum vel per legem terra." A privilege which is couched in almost the same words with that of the emperor Conrad, two hundred years before :(e) "nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum etper judicium parium suorum." And it was ever esteemed, in all countries, a privilege of the highest and most beneficial nature.
But I will not misspend the reader's time in fruitless encomiums on this method of trial; but shall proceed to the dissection and examination of it in all its parts, from whence indeed its highest encomium will arise; since, the more it is searched into and understood, the more it is sure to be valued. And this is & species of knowledge most absolutely necessary for every gentleman in the
(u) De jure Saxonum. p. 12. (*) Df jurr Sueonum^ I. 1, c. 4.
(»l Sp. L. b. 30, c. 18. UipituL Lud. pii. A.D. Sl», c. 2. (•} LL. LongoU. I 3, (. 6, I. 4.
s wills. LL. Angl. Sax. 117.
1 The Athenians, according to Sir Wm. Jones, had trials by jury. Sir Wm. Jones on bailment, 74.—Chittt.
kingdom: as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects, as because his own proporty his liberty, and his life, depend upon maintaining, in its legal force, the constitutional trial by jury.
*Trials by jury in civil causes are of two kinds; extraordinary and |.+„.. otdinary. The extraordinary I shall only briefly hint at, and confine L the main of my observations to that which is more usual and ordinary.
The first species of extraordinary trial by jury is that of the grand assize, which was instituted by king Henry the second in parliament, as was mentioned in the preceding chapter, by way of alternative offered to the choice of the tenant or defendant in a writ of right, instead of the barbarous and unchristian custom of duelling. For this purpose a writ de magna assisa eligenda }js directed to the sheriff,(/) to return four knights, who are to elect and choose twelve others to be joined with them, in the manner mentioned by Glanvil;(^) who, having probably advised the measure itself, is more than usually copious in describing it; and these, all together, form the grand assize, or great jury, which is to try the matter of right, and must now consist of sixteen jurors.(A)'
Another species of extraordinary juries is the jury to try an attaint; which is a process commenced against a former jury, for bringing in a false verdict; of which we shall speak more largely in a subsequent chapter. At present I shall only observe, that this jury is to consist of twenty-four of the best men in the county, who are called the grand jury in the attaint, to distinguish them from the first or petit jury; and these are to hear and try the goodness of the former verdict.'
With regard to the ordinary trial by jury in civil cases, I shall pursue the same method in considering it, that I set out with in explaining the nature of proseinter actions in general, viz., by following the order and course of the pro ceedings themselves, as the most clear and perspicuous way of treating it.
*When therefore an issue is joined, by these words, " and this the said r*qt.»
A. prays may be inquired of by the country," or, "and of this he puts L himself upon the country,—and the said B. does the like," the court awards a writ of venire facias upon the roll or record, commanding the sheriff "that ho cause to come here, on such a day, twelve free and lawful men, liberos et legates homines, of the body of his county, by whom the truth of the matter may be better known, and who are neither of kin to the aforesaid A. nor the aforesaid
B. , to recognise the truth of the issue between the said parties."(i) And such writ was accordingly issued to the sheriff.
Thus the cause stands ready for a trial at the bar of the court itself; for all trials were there antiently had, in actions which were there first commenced; which then never happened but in matters of weight and consequence, all trifling suits being ended in the court-baron, hundred, or county courts: and indeed ah causes of great importance or difficulty are still usually retained upon motion, to be tried at the bar in the superior courts. But when the usage began to bring actions of any trifling value in the courts of Westminster hall, it was found to be an intolerable burden to compel the parties, witnesses, and jurors to come from Westmoreland perhaps or Cornwall, to try an action of assault at Westminster. A practice therefore very early obtained, of continuing the ^use from term to term, in the court above, provided the justices in eyre did
(/) F. N. B. 4. (») Finch, L. 412. 1 Leon. 303.
(#) L. 2, c. 11,12, (<) Append. No. III. } 4.
* It seems not to be ascertained that any specific number above twelve is absolutely necessary to constitute the grand assize; but it is the usual course to swear upon it the four knights and twelve others. Viner, Trial, Xe.
See the proceedings upon a writ of right before the sixteen recognitors of the grand assize, in 3 Wils. 541.—Chittt.
As the writ of right has been abolished, this mode of trial can no longer be resorted to.—Stewart.
* But, by stat. 6 Geo. IV. c. 50, s. 60, this kind of trial by jury is abolished, and a juror for such an offence may be proceeded against by way of indictment or information.— Stewart.