Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of the Several Species of Trial
THE uncertainty of legal proceedings is a notion so generally adopted, and has so long been the standing theme of wit and good humor, that he who should attempt to refute it would be looked upon as a man, who was either incapable of discernment himself, or else meant to impose upon others. Yet it may not be amiss, before we enter upon the several modes whereby certainty is meant to be obtained in our courts of justice, to inquire a little wherein this uncertainty, so frequently complained of, consists; and to what causes it owes its original.
IT has sometimes been said to owe its original to the number of our municipal constitutions, and the multitude of our judicial decisions;1 which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary. The fact, of multiplicity, is allowed; and that thereby the researches of the student are rendered more difficult and laborious: but that, with proper industry, the result of those inquiries will be doubt and indecision, is a consequence that cannot be admitted. People are apt to be angry at the want of simplicity in our laws: they mistake variety for confusion, and complicated cases for contradictory. They bring us the examples of arbitrary governments, of Denmark, Muscovy, and Prussia; of wild and uncultivated nations, the savages of Africa and America; or of narrow domestic republics, in ancient Greece and modern Switzerland; and unreasonably require the same paucity of laws, the same conciseness of practice, in a nation of freemen, a polite and commercial people, and a populous extent of territory.
IN an arbitrary, despotic, government, where the lands are at the disposal of the prince, the rules of succession, or the mode of enjoyment, must depend upon his will and pleasure. Hence there can be but few legal determinations relating to the property, the descent, or the conveyance of real estates; and the same holds in a stronger degree with regard to goods and chattels, and the contracts relating thereto. Under a tyrannical sway trade must be continually in jeopardy, and of consequence can never be extensive: this therefore puts an end to the necessity of an infinite number of rules, which the English merchant daily recurs to for adjusting commercial differences. Marriages are there usually contracted with slaves; or at least women are treated as such: no laws can be therefore expected to regulate the rights of dower, jointures, and marriage settlements. Few also are the persons who can claim the privileges of any laws; the bulk of those nations, viz. the commonalty, boors or peasants, being merely villeins and bondmen. Those are therefore left to the private coercion of their lords, are esteemed (in the contemplation of these boasted legislators) incapable of either right or injury, and of consequence are entitled to no redress. We may see, in these arbitrary states, how large a field of legal contests is already rooted up and destroyed.
AGAIN; were we a poor and naked people, as the savages of America are, strangers to science, to commerce, and the arts as well of convenience as of luxury, we might perhaps be content, as some of them are said to be, to refer all disputes to the next man we met upon the road, and so put a short end to every controversy. For in a state of nature there is no room for municipal laws; and the nearer any nation approaches to that state, the fewer they will have occasion for. When the people of Rome were little better than sturdy shepherds or herdsmen, all their laws were contained in ten or twelve tables: but as luxury, politeness, and dominion increased, the civil law increased in the same proportion, and swelled to that amazing bulk which it now occupies, though successively pruned and retrenched by the emperors Theodosius and Justinian.
In like manner we may lastly observe, that, in petty states and narrow territories, much fewer laws will suffice than in large ones, because there are fewer objects upon which the laws can operate. The regulations of a private family are short and well-known; those of a prince’s household are necessarily more various and diffuse.
The causes therefore of the multiplicity of the English laws are, the extent of the country which they govern; the commerce and refinement of its inhabitants; but, above all, the liberty and property of the subject. These will naturally produce an infinite fund of disputes, which must be terminated in a judicial way: and it is essential to a free people, that these determinations be published and adhered to; that their property may be as certain and fixed as the very constitution of their state. For though in many other countries every thing is left in the breast 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 decisions, or cases adjudged, will arise; for seldom will it happen that any one rule will exactly suit with many cases. And in proportion as the decisions of courts of judicature are multiplied, the law will be loaded with decrees, that may sometimes (though rarely) interfere with each other: either because succeeding judges may not be apprized of the prior adjudication; or because they may think differently from their predecessors; or because the same arguments did not occur formerly as at present; or, in fine, because of the natural imbecility and imperfection that attends all human proceedings. But, wherever this happens to be the case in any material points, the legislature 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 statute how the law shall be held for the future.
WHATEVER instances therefore of contradiction or uncertainty may have been gleaned from our records, or reports, must be imputed to the defects of human laws in general, and are not owing to any particular ill construction of the English system. Indeed the reverse is most strictly true. The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not, like our books of reports, judicial determinations of the court) are all of authority sufficient to be vouched and relied on; which must needs breed great distraction and confusion in their tribunals. The same may be said of the canon law; though the text thereof is not of half the antiquity with the common law of England; and though the more ancient any system of laws is, the more it is liable to be perplexed with the multitude of judicial decrees. When therefore a body of laws, of so high antiquity as the English, is in general so clear and perspicuous, it argues deep wisdom and foresight in such as laid the foundations, and great care and circumspection, in such as have built the superstructure.
BUT is not (it will be asked) the multitude of lawsuits, which we daily see and experience, an argument against the clearness and certainty of the law itself?. By no means: for among the various disputes and controversies, which are daily to be met with in the course of legal proceedings, it is obvious to observe how very few arise from obscurity in the rules or maxims of law. An action shall seldom be heard of, to determine a question of inheritance, unless the fact of the descent be controverted. But the dubious points, which are usually agitated in our courts, arise chiefly from the difficulty there is of ascertaining the intentions of individuals, in their solemn dispositions of property; in their contracts, conveyances, and testaments. It is an object indeed of the utmost importance in this free and commercial country, to lay as few restraints as possible upon the transfer of possessions from hand to hand, or their various designations marked out by the prudence, convenience, or necessities, or even by the caprice, of their owners: yet to investigate the intention of the owner is frequently matter of difficulty, among heaps of entangled conveyances or wills of a various obscurity. The law rarely hesitates in declaring its own meaning; but the judges are frequently puzzled to find out the meaning of others. Thus the powers, the interest, the privileges, and properties of a tenant for life, and a tenant in tail, are clearly distinguished and precisely settled by law: but, what words in a will shall constitute this or that estate, has occasionally been disputed for more than two centuries past; and will continue to be disputed as long as the carelessness, the ignorance, or singularity of testators shall continue to clothe their intentions in dark or newfangled expressions.
BUT, notwithstanding so vast an accession of legal controversies, arising from so fertile a fund as the ignorance and wilfulness of individuals, these will bear no comparison in point of number to those which are founded upon the dishonesty, and disingenuity of the parties: by either their suggesting complaints that are false in fact, and thereupon bringing groundless actions; or by their denying such facts as are true, in setting up unwarrantable defenses. Ex facto oritur jus: if therefore the fact be perverted or misrepresented, the law which arise from thence will unavoidably be unjust or partial. And, in order to prevent this, it is necessary to set right the fact, and establish the truth contended for, by appealing to some mode of probation or trial, which the law of the country has ordained for a criterion of truth and falsehood.
THESE modes of probation or trial form in every civilized country the great object of judicial decisions. And experience will abundantly show, that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of. About twenty days in the year are sufficient, in Westminster-hall, to settle (upon solemn argument) every demurrer or other special point of law that arises throughout the nation: but two months are annually spent in deciding the truth of facts, before six distinct tribunals, in the several circuits of England; exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits.
TRIAL then is the examination of the matter of fact in issue; of which there are many different species, according to the difference of the subject, or thing to be tried: of all which we will take a cursory view in this and the subsequent chapter. For the law of England so industriously endeavors to investigate truth at any rat, that it will not confine itself to one, or to a few, manners of trial; but varies its examination of facts according to the nature of the facts themselves: this being the one invariable principle pursued, that as well the best method of trial, as the best evidence upon that trial, which the nature of the case affords, and no other, shall be admitted in the English courts of justice.
THE species of trials in civil cases are seven. By record; by inspection, or examination; by certificate; by witnesses; by wager of battle; by wager of law; and by jury.
I. FIRST then of the trial by record. This is only used in one particular instance: and that is where a matter of record is pleaded in any action, as a fine, a judgment, or the like; and the opposite party pleads “nul tiel record,” that there is no such matter of record existing: upon this, issue is tendered and joined in the following form, “and this he prays may be inquired of by the record, and the other does 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 shall be condemned;” and, on his failure, his antagonist shall have judgment to recover. The trial therefore of this issue is merely by the record; for, as Sir Edward Coke2 observes, a record or enrollment is a monument of so high a nature, and imports in itself such absolute verity, that if it be pleaded that there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself. Thus titles of nobility, as whether earl or no earl, baron or no baron, shall be tried by the king’s writ or patent only, which is matter of record.3 Also in case of an alien, whether alien friend or enemy, shall be tried by the league or treaty between his sovereign and ours; for every league or treaty is of record.4 And also, whether a manor be held in ancient demesne or not, shall be tried by the record of domesday in the king’s exchequer.
II. TRIAL by inspection, or examination, is when for the greater expedition of a cause, in some point or issue being either the principal question, or arising collaterally out of it, but being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For, where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts: and therefore when the fact, from its nature, must be evident to the court either from ocular demonstration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies on the judgment of the court alone. As in case of a suit to reverse a fine for non-age of the cognizor, or to set aside a statute or recognizance entered into by an infant; here, and in other cases of the like sort, a writ shall issue to the sheriff,5 commanding him that he constrain the said party to appear, that it may be ascertained by the view of his body by the king’s justices, whether he be of full age or not; “ut per aspectum corporis sui constare poterit justiciariis nostris, si praedictus A sit plenae aetatis, necne.”6 If however the court has, upon inspection, any doubt of the age of the party, (as may frequently be the case) it may proceed to take proofs of the fact; and, particularly, may examine the infant himself upon an oath of voir dire, veritatem dicere, that is, to make true answer to such questions as the court shall demand of him: or the court may examine his mother, his god-father, or the like.7
IN like manner if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine by inspection and examination, whether he be the plaintiff or not.8 Also if a man be found by a jury an idiot a nativitate, he may come in person into the chancery before the chancellor, or be brought there by his friends, to be inspected and examined, whether idiot or not: and if, upon such view and inquiry, it appears he is not so, the verdict of the jury, and all the proceedings thereon, are utterly void and instantly of no effect.9
ANOTHER instance in which the trial by inspection may be used, is when upon an appeal of mayhem, the issue joined is whether it be mayhem or no mayhem, this shall be decided by the court upon inspection, for which purpose they may call in the assistance of surgeons.10 And, by analogy to this, in an action of trespass for mayhem, the court, (upon view of such mayhem as the plaintiff has laid in his declaration, or which is certified by the judges who tried the cause to be the same as was given in evidence to the jury) may increase the damages at their own discretion;11 as may also be the case upon view of an atrocious battery.12 But then the battery must likewise be alleged so certainly in the declaration, that it may appear to be the same with the battery inspected.
ALSO, to ascertain any circumstances relative to a particular day past, it has been tried by an inspection of the almanac by the court. Thus, upon a writ of error from an inferior court, that of Lynn, the error assigned was that the judgment was given on a Sunday, it appearing to be on 26 February, 26 Eliz. and upon inspection of the almanacs of that year it was found that the 26th of February in that year actually fell upon a Sunday: this was held to be a sufficient trial, and that a trial by a jury was not necessary, although it was an error in fact; and so the judgment was reversed.13 But, in all these cases, the judges, if they conceive a doubt, may order it to be tried by jury.
III. THE trial by certificate is allowed in such cases, where the evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averment or information of persons in such a station, as affords them the most clear and competent knowledge of the truth. As therefore such evidence (if given to a jury) must have been conclusive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely. Thus, I. If the issue be whether A was absent with the king in his army out of the realm in time of war, this shall be tried14 by the certificate of the mareschall of the king’s host in writing under his seal, which shall be sent to the justices. 2. If, in order to avoid an outlawry, or the like, it was alleged that the defendant was in prison, ultra mare, at Bordeaux, or in the service of the mayor of Bordeaux, this should have been tried by the certificate of the mayor; and the like of the captain of Calais.15 But, when this was law,16 those towns were under the dominion of the crown of England. And therefore, by a parity of reason, it should now hold that in similar cases, arising at Jamaica or Minorca, the trial should now hold that should be by certificate from the governor of those islands. We also find17 that the certificate of the queen’s messenger, sent to summon home a peeress of the realm, was formerly held a sufficient trial of the contempt in refusing to obey such summons. 3. For matters within the realm; the customs of the city of London shall be tried by the certificate of the mayor and aldermen, certified by the mouth of their recorder;18 upon a surmise from the party alleging it, that the custom ought to be thus tried: else it must be tried by the
country.19 As, the custom of distributing the effects of freemen deceased; of enrolling apprentices; or that he who is free of one trade may use another; if any of these, or other similar, points come in issue. But this rule admits of an exception, where the corporation of London is party, or interested, in the suit; as in an action brought for a penalty inflicted by the custom: for there the reason of the law will not endure so partial a trial; but this custom shall be determined by a jury, and not by the mayor and aldermen, certifying by the mouth of their recorder.20 4. In some cases, the sheriff of London’s certificate shall be the final trial: as if the issue be, whether the defendant be a citizen of London or a foreigner,21 in case of privilege pleaded to be sued only in the city courts. Of a nature somewhat similar to which is the trial of the privilege of the university, when the chancellor claims cognizance of the cause, because one of the parties is a privileged person. In this case, the charters, confirmed by act of parliament, direct the trial of the question, whether a privileged person or no, to be determined by the certificate and notification of the chancellor under seal; to which it has also been usual to add an affidavit of the fact: but if the parties be at issue between themselves, whether A is a member of the university or no, on a plea of privilege, the trial shall be then by jury, and not by the chancellor’s certificate;22 because 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 himself pleads his privilege: so that this must be left to the ordinary course of determination. 5. In matters of ecclesiastical jurisdiction, as marriage, and of course general bastardy, and also excommunication, and orders, these, and other like matters, shall be tried by the bishop’s certificate.23 As if it be pleaded in abatement, that the plaintiff is excommunicated, and issue is joined thereon; or if a man claims an estate by descent, and the tenant alleges the demandant to be a bastard; or if on a writ of dower the heir pleads no marriage; or if the issue in a quare impedit be, whether or no the church be full by institution; all these being matters of mere ecclesiastical cognizance, shall be tried by certificate from the ordinary. But in an action on the case for calling a man bastard, the defendant having pleaded in justification that the plaintiff was really so, this was directed to be tried by a jury:24 because, whether the plaintiff be found either a general or special bastard, the justification will be good; and no question of special bastardy shall be tried by the bishop’s certificate, but by a jury.25 For a special bastard is one born, before marriage, of parents who afterwards intermarry: which is bastardy by our law, though not by the ecclesiastical. It would therefore be improper to refer the trial of that question to the bishop; who, whether the child be born before or after marriage, will be sure to return or certify him legitimate.26 Ability of a clerk presented,27 admission, institution, and deprivation of a clerk, shall also be tried by certificate from the ordinary or metropolitan, because of these he is the most competent judge:28 but induction shall be tried by a jury, because it is a matter of public notoriety,29 and is likewise the corporal investiture of the temporal profits. Resignation of a benefice may be tried in either way;30 but it seems most properly to fall within the bishop’s cognizance. 6. The trial or all customs and
practice of the courts shall be by certificate from the proper officers of those courts respectively; and, what return was made on a writ by the sheriff or under-sheriff, shall be only tried by his own certificate.31 And thus much for those several issues, or matters of fact, which are proper to be tried by certificate.
IV. A FOURTH species of trial is that by witnesses, per testes, 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 breast his sentence upon the credit of the witnesses examined: but it is very rarely used in our law, which prefers the trial by jury before it in almost every instance. Save only, that when a widow brings a writ of dower, and the tenant pleads that the husband is not dead; this, being looked upon as a dilatory plea, is, in favor of the widow and for greater expedition, allowed to be tried by witnesses examined before the judges: and so, says Finch,32 shall no other case in our law. But Sir Edward Coke33 mentions some others: as, to try whether the tenant in a real action was duly summoned, or the validity of a challenge to a juror: so that Finch’s observation must be confined to the trial of direct and not collateral issues. And in every case Sir Edward Coke lays it down, that the affirmative must be proved by two witnesses at the least.
V. THE next species of trial is of great antiquity, but much disused; though still in force if the parties choose to abide by it: I mean the trial by wager of battle. This seems to have owed its original to the military spirit of our ancestors, joined to a superstitious frame of mind; it being in the nature of an appeal to providence, under an apprehension and hope (however presumptuous and unwarrantable) that heaven would give the victory to him who had the right. The decision of suits, by this appeal to the God of battles, is by some said to have been invented by the Burgundi, one of the northern or German clans that planted themselves in Gaul. And it is true, that the first written injunction of judiciary combats that we meet with, is in the laws of Gundebald, A. D. 501, which are preserved in the Burgundian code. Yet it does not seem to have been merely a local custom of this or that particular tribe, but to have been the common usage of all those warlike people from the earliest times.34 And it may also seem from a passage in Velleius Paterculus,35 that the Germans, when first they became known to the Romans, were wont to decide all contests of right by the sword: for when Quintilius Varus endeavored to introduce among them the Roman laws and method of trial, it was looked upon (says the historian) as a “novitas incognitae, ut solita armis decerni, jure terminarentur.” And among the ancient Goths in Sweden we find the practice of judiciary duels established upon much the same footing as they formerly were in our own country.36
THIS trial was introduced into England among other Norman customs by William the conqueror; but was only used in three cases, one military, one criminal, and the third civil. The first in the court-martial, or court of chivalry and honor:37 the second in appeals of felony,38 of which we shall speak in the next book: and the third upon issue joined in a writ of right, the last and most solemn decision of real property. For in writs of right the jus proprietatis, which is frequently a matter of difficulty, is in question; but other real actions being merely questions of the jus possessionis, which are usually more plain and obvious, our ancestors did not in them appeal to the decision of providence. Another pretext for allowing it, upon these final writs of right, was also for the sake of such claimants as might have the true right, but yet by the death of witnesses or other defect of evidence be unable to prove it to a jury. But the most curious reason of all is given in the mirror,39 that it is allowable upon warrant of the combat between David for the people of Israel of the one party, and Goliath for the Philistines of the other party: a reason, which pope Nicholas I very seriously decides to be inconclusive.40 Of battle therefore on a writ of right41 we are now to speak; and although the writ of right itself, and of course this trial thereof, be at present disused; yet, as it is law at this day, it may be matter of curiosity, at least, to inquire into the forms of this proceeding, as we may gather them from ancient authors.42
THE last trial by battle that was joined in a civil suit (though there was afterwards one in the court of chivalry in the reign of Charles the first;43 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 Sir James Dyer,44 and was held in Tothill fields Westminster, “non sine magna juris consultorum perturbatione“, says Sir Henry Spelman,45 who was himself a witness 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 issue, viz. that he has more right to hold, than the demandant has to recover; and offers to prove it by the body of his champion, which tender is accepted by the demandant; the tenant in the first place must produce his champion, who, by throwing down his glove as a gage or pledge, thus wages or stipulates battle with the champion of the demandant; who, by taking up the gage or glove, stipulates on his part to accept the challenge. The reason why it is waged by champions, and not by the parties themselves, in civil actions, is because, if any party to the suit dies, the suit must abate and be at an end for the present; and therefore no judgment could be given for the lands in question, if either of the parties were slain in battle:46 and also that no person might claim an exemption from this trial, as was allowed in criminal cases, where the battle was waged in person.
A PIECE of ground is then in due time set out, of sixty feet square, enclosed with lists, and on one side a court erected for the judges of the court of common pleas, who attend there in their scarlet robes; and also a bar is prepared for the learned sergeants at law. When the court sits, which ought to be by sunrising, proclamation is made for the parities, and their champions; who are introduced by two knights, and are dressed in a suit of armor, with red sandals, barelegged from the knee downwards, bareheaded, and with bare arms to the elbows. The weapons allowed them are only batons, or staves, of an ell long, and a four-cornered leather target; so that death very seldom ensued this civil combat. In the court military indeed they fought with sword and lance, according to Spelman and Rushworth; as likewise in France only villeins fought with the buckler and baton, gentlemen armed at all points. And upon this, and other circumstances, the president Montesquieu47 has with great ingenuity not only deduced the impious custom of private duels upon imaginary points of honor, but has also traced the heroic madness of knight errantry, from the same original of judicial combats. But to proceed.
WHEN the champions, thus armed with batons, arrive within the lists or place of combat, the champion of the tenant then takes his adversary by the hand, and makes oath that the tenements in dispute are not the right of the demandant; and the champion of the demandant, then taking the other by the hand, swears in the same manner that they are; so that each champion is, or ought to be, thoroughly persuaded of the truth of the cause he fights for. Next an oath against sorcery and enchantment is to be taken by both the champions, in this or a similar form; “hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, ne grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the devil exalted. So help me God and his saints.”
THE battle is thus begun, and the combatants are bound to fight till the stars appear in the evening: and, if the champion of the tenant can defend himself till the stars appear, the tenant shall prevail in his cause; for it is sufficient for him to maintain his ground, and make it a drawn battle, he being already in possession: but, if victory declares itself for either party, for him is judgment finally given. This victory may arise, from the death of either of the champions: which indeed has rarely happened; the whole ceremony, to say the truth, bearing a near resemblance to certain rural athletic diversions, 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 disgrace and obloquy, rather than of any determinate meaning. But a horrible word it indeed is to the vanquished champion: since as a punishment to him for forfeiting the land of his principal by pronouncing that shameful word, he is condemned, as a recreant, amittere liberam legem, that is, to become infamous and not be accounted liber et legalis homo; being supposed by the event to be proved forsworn, and therefore never to be put upon a jury or admitted as a witness in any cause.
THIS is the form of a trial by battle; 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 decision of such writ of right after the conquest, till Henry the second by consent of parliament introduced the grand assize,48 a peculiar species of trial by jury, in concurrence therewith; giving the tenant his choice of either the one or the other. Which example, of discountenancing these judicial combats, was imitated about a century afterwards in France, by an edict of Louis the pious, A. D. 1260, and soon after by the rest of Europe. The establishment of this alternative, Glanvil, chief justice to Henry the second, and probably his adviser herein, considers as a most noble improvement, as in fact it was, of the law.49
VI. A SIXTH species of trial is by wager of law, vadiatio legis, as the foregoing is called wager of battle, vadiatio duelli: because, as in the former case the defendant gave a pledge, gage, or vadium, to try by battle; so here he was to put in sureties or vadios, that at such a day he will make his law, that is, take the benefit which the law has allowed him.50 For our ancestors considered, that there were many cases where an innocent man, of good credit, might be overborne by a multitude of false witnesses; and therefore established this species of trial, by the oath of the defendant himself: for if he will absolutely swear himself not chargeable, and appears to be a person of reputation, he shall go free and forever acquitted of the debt, or other cause of action.
THIS method of trial is not only to be found in the codes of almost all the northern nations, that broke in upon the Roman empire and established petty kingdoms upon it ruins;51 but its original may also be traced as far back as the Mosaic law. “If a man deliver unto his neighbor an ass, or an ox, or a sheep, or any beast, to keep; and it die, or be hurt, or driven away, no man seeing it; then shall an oath of the Lord between them both, that he has not put his hand unto his neighbor’s goods; and the owner of it shall accept thereof, and he shall not make it good.”52 We shall likewise be 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;53 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,54 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 waged, or given security, to make his law, brings with him into court eleven of his neighbors: a custom, which we find particularly described so early as in the league between Alfred and Guthrun the Dane;55 for by the old Saxon constitution every man’s credit in courts of law depended upon the opinion which his neighbors had of his veracity. The defendant then, standing at the end of the bar, is admonished by the judges of the nature and danger of a false oath.56 And if he still persists, he is to repeat this or the like oath: “hear this, ye justices, that I do not own unto Richard Jones the sum of ten pounds, nor any penny thereof, in manner and form as the said Richard has declared against me. So help me God.” And thereupon his eleven neighbors or compurgators shall avow upon their oaths, that they believe in their consciences that he says the truth; so that himself must be sworn de fidelitate, and the eleven de credulitate.57 It is held indeed by later authorities58 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 favor, it ought to be established by the same or equal testimony, namely by the oath of twelve men. And so indeed Glanvil expresses it,59 “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 se duodecima manu.” Thus too, in an author of the age of Edward the first,60 we read, “adjudicabitur reus ad legem suam duodecima
manu.”61 And the ancient treatise, entitled dyversite des courts, expressly confirms Sir Edward Coke’s opinion.62
IT must be however observed, that so long as the custom continued 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 ballivus de caetero 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:63 “si petens sectam produxerit, et concordes inveniantur, tunc reus poterit vadiare legem suam contra petentem et contra sectam suam prolatam; sed si secta variabilis inveniatur, extunc non tenebitur legem vadiare contra sectam illam.” It is true indeed, that Fleta expressly limits the number of compurgators to be only double to that of the secta produced; “ut si duos vel tres testes produxerit ad probandum, oportet quod defensio fiat per quatuor vel per sex; ita quod pro quolibet 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 secta consisted of six. But, though this might possibly be the rule till the production of the secta was generally disused, since that time the duodecima manus seems to have been generally required.64
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;65 but was also absolutely required, in many civil cases: which an author of their own66 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 crop of oaths in all judicial proceedings, reaped afterwards an ample 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 an 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:67 so that wager of law lies 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 grows by word only. Nor does it lie in an action of debt, for arrears of an account, settled by auditors in a former action.68 And by such wager of law (when admitted) the plaintiff is perpetually barred; for the law, in the simplicity of the ancient times, presumed that no one would forswear himself, for any worldly thing.69 Wager of law however lies in a real action, where the tenant alleges he was not
legally summoned to appear, as well as in mere personal contracts.70
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.71
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 case shall not be admitted 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 has 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 jailer for his victuals, the defendant shall not wage his law: for the jailer 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 wage his law, because the plaintiff is compellable to be his attorney. And so, if a servant be retained according to the statute of laborers, 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.72
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:73 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 deceased, shall not be admitted to wage their law:74 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.75 And this prerogative extends and is communicated to his debtor and accountant; for, on a writ of quo minus in the exchequer for a debt on simple contract, the defendant is not allowed to wage his law.76
THUS the wager of law 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 the 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 detinue to recover the very thing detained, an action of trespass on the case in trover and conversion is usually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall pay 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 an hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it.
THESE six species of trials, that we have considered in the present chapter, are only had in certain special and eccentric cases; where the trial by the 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.
1. See the preface to Sir John Davies’s reports: Wherein many of the following topics are discussed more at large.
2. I Inst. 117. 260.
3. 6 Rep. 53.
4. 9 Rep. 31.
5. 9 Rep. 31.
6. This question 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 inspection.
7. 2 Roll. Abr. 573.
8. 9 Rep. 30.
9. Ibid. 31.
10. 2 Roll. Abr. 578.
11. I Sid. 108.
12. Hardr. 408.
13. Cro. Eliz. 227.
14. Litt. § 102.
15. 9 Rep. 31.
16. 2 Roll. Abr. 583.
17. Dyer. 176, 177.
18. Co. Litt. 74. 4 Burr. 248.
19. Bro. Abr. t. trial. pl. 96.
20. Hop. 85.
21. Co. Litt. 74.
22. 2 Roll. Abr. 583.
23. Co. Litt. 74.
24. Hob. 179.
25. Dyer. 79.
26. See introd. to the great charter. edit. Oxon. sub anno 1253.
27. See book I. Ch. II.
28. 2 Inst. 632. Show. Parl. C. 88.
29. Dyer. 229.
30. 2 Roll. Abr. 583.
31. 9 Rep. 31.
32. L. 423.
33. I Inst. 6.
34. Seld. of duels. c. 5.
35. l. 2. c. 118.
36. Stiernh. de jure Sueon. l. I. c. 7.
37. Co. Litt. 261.
38. 2 Hawk. P. C. 45.
39. c. 3. § 23.
40. Decret. Part. 2. caus. 2. qu. 5. c. 22.
41. Append. No. I. § 5.
42. 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 Inst. 247.
43. Rushw. coll. vol. 2. part. 2. fol. 112.
45. Gloss. 103.
46. Co. Litt. 294. Dyversite des courts. 304.
47. Sp. L. b. 28. c. 20. 22.
48. Append. No. I. § 6.
49. Est autem magna assisa regale quoddam beneficium, clementia principis, de consilio procerum, populis indultum; quo vitae hominum, et status integritati tam salubriter consulitur, ut, retinendo quod quis possidet in libero tenemento soli, duelli casum declinare possint homines ambiguum. Ac per hoc contingit, insperatae et praematurae mortis ultimum evadere supplicium, vel saltem perennis infamiae opprobrium illius infesti et inverecundi verbi, quod in ore victi turpiter sonat, consecutivum. Ex aequitate item maxima prodita est legalis ista institutio. Jus enim, quod post multas et longas dilationes vix evincitur per duellum, per beneficium istius constitutionis commodius et acceleratius expeditur. (l. 2. c. 7.)
50. Co. Litt. 295.
51. Sp. L. b. 28. c. 13. Stiernhook de jure Sueonum. L. I. c. 9. Feud. l. I. t. 4. 10. 28.
52. Exod. 22:10.
53. Cod. 4. I. 12.
54. Bro. Abr. t. ley gager. 77.
55. cap. 3. Wilk. LL. Angl. Sax.
56. Salk. 682.
57. Co. Litt. 295.
58. 2 Ventr. 171.
59. l. I. c. 9.
60. Fitzh. Abr. t. ley. 78.
61. Henghem magna. c. 5.
62. Il covint aver’ oue luy xi maynz de jurer oue luy, sc. que ilz entendre en lour consciens que il disoyt voier. (fol. 306.)
63. l. 2. c. 63.
64. Bro. Abr. t. ley gager. 9.
65. Mod. Un. Hist. xxxiii. 22.
66. Stiernhook de jure Sueonum. L. I. c. 9.
67. Co. Litt. 295.
68. 10 Rep. 103.
69. Co. Litt. 295.
70. Finch. L. 423.
71. Co. Litt. 295.
72. Co. Litt. 295.
73. Ibid. Raym. 286.
74. Finch. L. 424.
75. Ibid. 425.
76. Co. Litt. 295.