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 for ever acquitted of the debt, or other cause of action.

*This method of trial is not only to be found in the codes of al- [*342] most all the northern nations, that broke in upon the Roman empire, and established petty kingdoms upon its ruins (2); but its original may also be traced as far back as the Mosaical law. "If a man deliver unto his neighbour 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 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 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 (6); 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 ad versary 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 [*343] waged, 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 in 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 the 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 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

(z) Sp. L. b. 28, c. 13. Stiernhook, de jure Sueoum, l. 1, c. 9. Feud. 1. 1, t. 4 10. 28

(a) Exod. xxii. 10.

(b) Cod. 4. 1. 12.

(e) Bro. Abr. t. ley gager. 77

(d) Cap. 3. Wilk. L L Angl Sax
(e) Salk. 682.

(f) Co. Litt. 295.

(g) 2 Ventr. 171.

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, Diversite des courts, expressly confirms sir Edward Coke's opinion (?). [*344] *It must be however observed, that so long as the custom continued of producing the secta, the suit, or witnesses to give proba bility 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 (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, oportet quod defensio fiat per quatuor vel per sex; ita quod proquolibet 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 (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 [*345] 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 amercement (12), 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 ac

(h) l. 1, c. 9.

(i Fitz. Abr. t. ley, 78.

(k) Hengham magna. c. 5.

(1) Il covint aver' oue luy zi mayns de jurer oue buy, sc. que ilz entendre en lour consciens que il

(12) In a court not of record; for if the amercement were imposed by a court of re

disoyt voier. (fol. 305, edit. 1534.)
(m) 1. 2, c. 63.

(n) Bro. Abr. t. ley gager, 9.

(0) Mod. Un. Hist. xxxiii. 22.

(p) Stiernhook, de jure Sueonum, l. 1, c. 9.

cord, the defendant could not wage nis law Co. Litt. 295. a.

tions, 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 ancient 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 (4).

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).

*It is moreover a rule, that where a man is compellable by law [364] 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 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 (w).

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 [317] the deceased, shall not be admitted to wage their law (y): for no

(9) Co. Litt. 295.

(r) 10 Rep. 103.
(a) Co. Litt. 295.
(t) Finch, L. 423.
VOL. II.

37

(u) Co. Litt. 295.
(w) Ibid.

(z) Ibid. Raym. 286.

(y) Finch, L. 494.

man can with a sale 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 wage 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 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, [*348] an action of trespass on the case in trover *and conversion is usually brought; wherein, though the horse or other specific chattel can. not 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.

(s) Finch, L. 523.

(a) Co. Litt. 895.

CHAPTER XXIII.

OF THE TRIAL BY JURY.

THE subject of our next inquires will be the nature and method of the trial by jury; called also the trial per pais, or by the country: a trial that nath 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 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 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 we are apt to impute the invention of this, and some other pieces of juridical [*350] 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 chap. 29. that no freeman shall be hurt in either his persor. or property; "nisi per legale judicium parium suorum vel per legem terrae. 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.

(a) de jure Saconum, p. 12.

(b) Sp. L. b. 30, c. 18. Capitul. Lud. pii. A. D. 819, c. 2.

(e) Wilk. LL. Angl. Sax. 117.
(d) de jure Sueonum, 1. 1, c. 4.
(e) LL. Longob. I. 3, t. 8, l. 4.

(1) The Athenians, according to sir Wm. Jones, had trials by jury. Sir Wm. Jones og Bailment, 74.