or compurgators, shall avow upon their oaths, that they believe in their consciences that he saith the truth; so that himself must be sworn de fidelitate, and the eleven de credulitate. (f) It is held indeed by later authorities, (g) 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, (h) "jurabit duodecima manu:" 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 duodecima manu." (i) Thus, too, in an author of the age of Edward the First, (k) we read, "adjudicabitur reus ad legem suam duodecima manu." And the ancient treatise, entitled, Dyversite des courts, expressly confirms Sir Edward Coke's opinion. (7)

*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 [*344] 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 cætero ponat aliquem ad legem manifestam," (that is, wager of battel), "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 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, opertet 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. (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; (0) 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 crop of oaths *in all judicial proceedings, reaped afterwards an ample harvest of perjuries: for perjuries were punished in part by [ *345] 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: (7) 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

(f) Co. Litt. 295.

(h) L. 1. c. 9.

(g) 2 Ventr. 171.

(i) Fitz. Abr. tit. ley, 78.

(k) Hengham magna, c. 5.

(1) Il covint aver' oue luy xi maynz de jurer oue luy, sc. que liz entendre en lour consciens que il disoyt voier. Fol. 305, edit. 1534.

(m) L. 2, c. 63.

(n) Bro. Abr. tit. ley gager, 9. (p) Stiernhook, de jure Sueon, l. 1. c. 9.

(0) Mod. Un. Hist. xxxiii, 22. (g) Co. Litt. 295.

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 ancient times, presumed that no one would forswear himself for any worldly thing. (8) 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. (t)

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)

[*346] *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 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 the 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 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. (v)

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: (w) 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 [*347] deceased, shall not be admitted to wage their law: (x) 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. (3) 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 wage his law. (2) 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

(r) 10 Rep. 103.

(u) Co. Litt. 295.
(x) Finch L. 424.

(8) Co. Litt. 295.

(v) Ibid.

(y) Ibid. 523.

(t) Finch,L. 423.
(w) Ibid. Raym. 286.
(z) Co. Litt. 295.

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 the 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; [*348] 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 eccentrical 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.

CHAPTER XXIII.

OF THE TRIAL BY JURY.

THE subject of our next inquiries will be the nature and method of 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 feudal 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 courts, so the king's vassals, or the lords themselves, judged each other in the king's court. (b) In England we find actual mention of them so early as the laws of King Ethelred, and that (a) De jure Sazonum, p. 12. (b) Sp. L. b. 30. c. 18. Capitul. Ludd, pii. A. D. 819, c. 2.

not as a new invention. (c) Stiernhook (d) ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was cotemporary with our King Egbert. Just as [*350] we are apt to impute the invention of this, and some other pieces of juridical polity, to the 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 ancient 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 chapter 29, that no freeman shall be hurt in either his person or property; "nisi per legale judicium parium suorum vel per legem terræ." 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 et per 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 a species of knowledge most absolutely necessary for every gentleman in the 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 property, 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 [*351] ordinary. The extraordinary I shall only briefly hint at, and confine 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 assiza eligenda is directed to the sheriff, (f) to return four knights, who are to elect and choose twelve others to be joined with them, in the manner mentioned by Glanvil; (g) 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. (h) (2)

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: (3) 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

(c) Wilk. LL. Angl. Sax, 117.

(e) LL. Longob. l. 3, t. 8, l. 4.

(d) De jure Sueonum, l. 1, c. 4.

(f) F. N. B. 4. (g) L. 2, c. 11, 21. (h) Finch, L. 412. 1 Leon. 303.

(1) For an account of trial by jury among the northern nations, see History of Trial by Jury, by William Forsyth. As to the method of trial at Athens by dicasteries faintly resembling our juries, see Grote, Hist. Greece, vol. v, ch. 46.

(2) This mode of trial is abolished.

(3) Abolished by 6 Geo. IV, c. 50, s. 60.

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 prosecuting actions in general, viz.: by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it. *When, therefore, an issue is joined, by these words, "and this the [*352] said A prays may be inquired of by the country," or, "and of this he puts 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 he cause to come here on such a day, twelve free and lawful men, liberos et legales 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 recognize 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 anciently 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 all 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 Westminsterhall, it was found to be an intolerable burthen 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 cause from term to term, in the court above, provided the justices in eyre did not previously come into the county where the cause of action arose; (j) and if it happened that they arrived there within that interval, then the cause was removed from the jurisdiction of the justices at Westminster to that of the justices in eyre. Afterwards, when the justices in eyre were superseded by the modern justices of assize (who came twice or thrice in the year into the several counties, ad capiendas assisas, to take or try writs of assize, of mort d' ancestor, novel disseisin, nuisance, *and the [*353] like), a power was superadded by statute Westm. 2, 13 Edw. 1, c. 30, to these justices of assize to try common issues in trespass, and other less important suits, with direction to return them (when tried) into the court above, where alone the judgment should be given. And as only the trial, and not the determination of the cause, was now intended to be had in the court below, therefore the clause of nisi prius was left out of the conditional continuances before mentioned, and was directed by the statute to be inserted in the writs of venire facias; that is, "that the sheriff should cause the jurors to come to Westminster (or wherever the king's court should be held) on such a day in Easter and Michaelmas terms; nisi prius, unless before that day the justices assigned to take assize shall come into his said county." By virtue of which the sheriff returned his jurors to the court of the justices of assize, which was sure to be held in the vacations before Easter and Michaelmas terms; and there the trial was had.

An inconvenience attended this provision: principally because, as the sheriff made no return of the jury to the court at Westminster, the parties were ignorant who they were till they came upon the trial, and therefore were not ready with their challenges or exceptions. For this reason, by the statute 42 Edw. III, c. 11, the method of trials by nisi prius was altered; and it was enacted that no inquests (except of assize and gaol delivery) should be taken by writ of nisi prius, till after the sheriff had returned the names of the jurors to the

(i) Appendix. No. II, § 4.

(j) Semper dabitur dies partibus a justiciariis de banco, sub tali conditione, “nisi justiciarii itinerantes prius venerint ad partes illas." Bract. 1. 3, tr. 1, c. 11, § 8.

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