ly a local custom of this or that particular tribe, but to have been the common usage of all these warlike people from the earliest times. (h) And it may also seem from a passage in Velleius Paterculus, (i) 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 endeavoured to introduce among them the Roman laws and method of trial, it was looked upon (says the historian) as a "novitas incognitae disciplinae, 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. (j) 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 honour; (k) the second in appeals of felony, (7) of which [338] 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 dif ficulty, 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 defects of evidence, be unable to prove it to a jury. But the most curious reason of all is given in the mirror, (m) that it is allowable upon warrant of the combat between David for the people of Israel of the one party, and Goliah for the Philistines of the other party: a reason which pope Nicholas I. very seriously decides to be inconclusive. (n) Of battel therefore on a writ of right, (o) we are now to speak; and although the writ of right itself, and of course this trial thereof, be at present much 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 au→ thors. (p) The last trial by battel that was waged in the court of common pleas at Westminster (though there was afterwards (q) one in the court of chivalry in 1631; and another in the county palatine of Durham (r) in 1638) was in the thirteenth year of queen Elizabeth, A. D. 1571, as reported by sir James Dyer (s) and was held in Tothill-fields, Westminster, "non sine magna juris consultorum perturbatione," saith sir Henry Spelman, (?) 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 hath more right to hold, than the demandant hath to recover; and offers to prove it by the body of his champion, which tender is accepted by [339] 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 battel with the champion of the demandant; who by taking up the gage or glove, stipulates on his part to accept the chal. b Seld, of duels, c. 5. k Co. Litt. 261. j Stiernh, de jure Quean, l. 1. c. 7. i l. 2. c. 118. 12 Hawk. P. C. 45. n Decret. part. 2. caus. 2. qu. 5. c. 22. Glanvil. . 2. c. 8. Vet. nat. brev. fol. 2. Nov. Nar. tit. Droit, patent, föl. 221. (edit. 1594.) Yearbook. 29 Edw. III. 12. Finch. L. 421. Dyer. 301. 2 last. 247. q Rush. coll. vol. 2. part 2. fol. 112. 19 Rym. 322. s Dyer. 801. P r Cro. Car. 512. t Gloss. 102. (7) Not so now, see note 6 ante, 337. lenge. 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 judg. ment could be given for the lands in question, if either of the parties were slain in battel: (u) and also that no person might claim an exemption from this trial, as was allowed in criminal cases, where the battel 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 serjeants at law. When the court sits, which ought to be by sunrising, proclamation is made for the parties, and their champions; who are introduced by two knights, and are dressed in a coat of armour, with red sandals, bare-legged 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 Montesquieu (v) hath with great ingenuity not only deduced the impious custom of private duels upon imaginary points of honour, but hath 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 [340] 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 en"chantment, 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 battel 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 battel, 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 hath 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 a Co. Litt. 294. Diversite des courts, 304. Sp. L. b. 28, E. 20, 22. (8) The word "craven" has an obvious and intelligible meaning from the occasion on which it is employed. It is of Anglo-Saxon derivation (crafian), and means to crave, to beg, or to imm 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 sup. posed by the event to be proved forsworn, and therefore never to be put upon a jury or admitted as a witness in any cause. [341] This is the form of a trial by battel; a trial which the tenant, or defendant in a writ of right, has it in his election at this day to de mand; and which was the only decision of such writ of right after the comquest, til! Henry the Second by consent of parliament introduced the grand assise, (w) a peculiar species of trial by jury, in concurrence there. with; 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. (x) VI. A sixth species of trial is by wager of law,' vadiatio legis, as the foregoing is called wager of battel, vadiatio duelli: because, as in the former case, the defendant gave a pledge, gage, or vadium, to try the cause by battel; so here he was 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. (y) 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 de fendant 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. [342] 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 its ruins; (z) 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 w Append. No. 1. § 6. x Est autem magna assisa regale quoddam beneficium, clementia principis, de consilio procerum, populis indultum; quo vitae hominum, et status integritatı 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 nequilate item maxima prodita est legalis ista institutio. Jus enim, quod post multas et longas dilationes vix evincitur per duellum, per beneficium istins constitutionis commodius et acceleratius expeditur (1. 2. c. 7.) y Co. Litt. 295. Feud. l. 1. t. 4. 10. 28. z Sp L. b. 28. c. 13. Stiernhook, de jure Sueonum. l. 1. c. 9. plore-which to do, of an adversary in combat, was held to be cowardly and dishonourable, however hopeless the conflict, in the age of chivalry. See Kendall's Argument on Trial by Battel, 143. n. (9) The right to wage law in an action of debt on simple contract still exists. See Barry v. Robinson, 1 Bos. and Pul New. Rep. 297 In the case of King Williams, 2 B. & C. 538. the defendant having waged his law, and the master assigned a day for him to come in and perfect it, be applied, by his counsel, to the court to assign the number of compurgators with whom he should come to perfect it, on the ground that the number being uncertain, it was the duty of the court to say how many were necessary. But the court being disinclined to assist the revival of this obsolete mode of trial, refused the application, and left the defendant to bring such number as he should be advised were sufficient; and observed, that if the plaintiff were not satisfied with the number brought, the objection would be open to him, and then the court would bear both sides. The defendant afterwards prepared to bring eleven compurgators, but the plaintiff aban doned the action. 2 B. & C. 538. 4 Dow. & Ryl. 3. Chitty. "Lord be between them both, that he hath not put his hand unto his neigh"bour'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; (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 defend. ant 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. (ƒ) It is held indeed by later authorities, (g) that fewer than eleven compurga. tors will do but sir Edward Coke is positive that there must be this num. ber; 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, to, in an author of the age of Henry 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. (1) It must be however observed, that so long as the custom continued of producing the secta, the suit, or witnesses to give probability [344] to the plaintiff's demand (of which we spoke in a former chapter), i Fitz. Abr. t. ley. 78. IN covint aver ove luy xi mayna de jurer que luy, sc. que ila entendra en lour consciens que il disoyt voier. fol 305, edit. 1694.) g 2 Ventr. 171. c Bro. Abr. t. ley gager. 77. the defendant was not put to wage his law unless the secta was first pro duced, 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 battel) "nec ad juramentum," (that is, wager of law,)" simplici loquela sua," (that is, merely by his count of declaration,)" sine testibus fidelibus ad hoc inductis." Which Fleta thus ex. plains: (m)" si petens sectam produxerit, et concordes inveniantur, tunc reus poterit vadiare legem suam contra petentem et contra sectam suam pro"latam; sed si secta variabilis inveniatur, extunc non tenebitur legem va"diare contra sectam illam." It 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 de"fensio fiat per quatuor vel per sex; ita quod pro quolibet teste duos pro"ducat 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 ec clesiastics, who introduced this method of purgation from their ca[345] non law; and having sown a plentiful crop of oaths in all judicial pro 10 ceedings, 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, 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: (g) 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. (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. (1) 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 battel, shall not be permitted to wage his law. Neither shall an in m l. 2. c. 63. o Mod. Un. Hist. xxxiii. 22. (10) In a court not of record; for if the amercement were imposed by a court of record, the defendant could not wage his law. Co. Litt. 295. a. |