man can with a safe conscience wage law of another man's contract; that is, swear that he never entered into it, or at least that he privately discharged it. The king also has his prerogative; for, as all wager of law imports a reflection on the plaintiff for dishonesty, therefore there shall be no such wager on actions brought by him (2). And this prerogative extends and is communicated to his debtor and accomptant; for, on a writ of quo minus in the exchequer for a debt on simple contract, the defendant is not allowed to 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 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.

(s) Finch, L. 523.

(a) Co. Litt. 295.

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 hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. Some author 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 prow ́ess of mankind. Whereas the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other (1). Its establishment however and use, in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battle, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In magna carta it is more than once insisted on as the principal bulwark of our liberties; but especially by chap. 29. that no freeman shall be hurt in either his person or property; "nisi per legale judicium parium suorum vel per legem 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.

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

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

But I will not mispend 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. [*351] *Trials by jury in civil causes are of two kinds; extraordinary, and 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 assise, which was instituted by king Henry the Second in parliament, as was mentioned in the preceding chapter, by way of alternative offered to the choice of the tenant or defendant in a writ of right, instead of the barbarous and unchristian custom of duelling. For this purpose a writ de magna assisa eligenda 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 assise, or great jury, which is to try the matter of right, and must now consist of sixteen jurors (h) (2), (3).

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 (4); of which we shall speak more largely in a subsequent chapter. At present I shall only observe, that this jury is to consist of twenty-four of the best men in the county, who are called the grand jury in the attaint, to distinguish them from the first or petit jury; and these are to hear and try the goodness of the former verdict.

With regard to the ordinary trial by jury in civil cases, I shall pursue the same method in considering it, that I set out with in explaining the nature of 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.

[*352] *When therefore an issue is joined, by these words," and this the 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

(f) F. N. B. 4.
(g) 1. 2, c. 11-12.

(2) It seems not to be ascertained that any specific number above twelve is absolutely necessary to constitute the grand assise; but it is the usual course to swear upon it the four knights and twelve others. Viner, Trial, Xe.

See the proceedings upon a writ of right before the sixteen recognitors of the grand

(h) Finch, L. 412. 1 Leon. 303.

assise, in 3 Wils. 541.

(3) Trials by the grand assise are abolished in New-York. (2 R. S. 409, § 4.)

(4) Abolished by 6 Geo. IV. c. 50. s. 60. See tit. Legal Proceedings, note infra.

Also abolished in New-York. (2 R. S. 421, 69.)

issue between the said parties (i)." And such writ was accordingly issued to the sheriff (5).

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 Westminster-hall, it was found to be an intolerable burthen to compel the parties, witnesses, and jurors, to come from Westmorland 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 (k); 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 assise (who came twice or thrice in the year into the several counties, ad capiendas assisas, to take or try writs of assise, of mort d'ancestor, novel disseisin, nuisance, and the like),72 [*353] a power was superadded by statute Westm. 2. 13 Edw. I. c. 30. to these justices of assise 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 assises shall come into his said county." By virtue of which the sheriff returned his jurors to the court of the justices of assise, which was sure to be held in the vacation 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 assise and gaol delivery) should be taken by writ of nisi prius, till after the sheriff had returned the names of the jurors to the court above. So that now in almost every civil cause the clause of nisi prius is left out of the writ of venire facias, which is the sheriff's warrant to warn the jury; and is inserted in another part of the proceedings, as we shall see presently.

(1) Appendix, No. III. 4.

(k) Semper dabitur dies partibus ab justiciariis de banco, sub tali conditione, “nisi justiciarii iti

(5) Venires, except for foreign juries, are abolished in New-York. (2 R. S. 410, 9.) The sheriff summons such jurors as are

nerantes prius venerint ad partes illas." (Bract. 1. 3, tr. 1, c. 11, ◊ 8.)

named on a list furnished to him by the clerk of the county. (Id. 414, § 30.) Ás to trials at bar, see note 1. p. 325, ante. (72) See Hov. n. (72) at the end of the Vol. B. III.

For now the course is, to make the sheriff's venire returnable on the last return of the same term wherein issue is joined, viz. hilary or trinity terms; which, from the making up of the issues therein, are usually called issuable terms. And he returns the names of the jurors in a panel (a little pane, or oblong piece of parchment) annexed to the writ. This [*354] jury is not summoned, and therefore, not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum, and in the king's bench a distringas, commanding the sheriff to have their bodies or to distrain them by their lands and goods, that they may appear upon the day appointed. The entry therefore on the roll or record is (1), "that the jury is respited, through defect of the jurors, till the first day of the next term, then to appear at Westminster; unless before that time, viz. on Wednesday the fourth of March, the justices of our lord the king, appointed to take assises in that county, shall have come to Oxford, that is, to the place assigned for holding the assises." And thereupon the writ commands the sheriff to have their bodies at Westminster on the said first day of next term, or before the said justices of assise, if before that time they come to Oxford; viz. on the fourth of March aforesaid. And, as the judges are sure to come and open the circuit commissions on the day mentioned in the writ, the sheriff returns and summons the jury to appear at the assises, and there the trial is had before the justices of assise and nisi prius: among whom (as hath been said) (m) are usually two of the judges of the courts of Westminster, the whole kingdom being divided into six circuits for this purpose. And thus we may observe that the trial of common issues, at nisi prius, which was in its original only a collateral incident to the original business of the justices of assise, is now, by the various revolutions of practice, become their principal civil employment: hardly any thing73remaining in use of the real assises, but the name,

If the sheriff be not an indifferent person; as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury, but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff, to execute process when he is deemed an improper person (6). If

any exception lies to the coroners, the venire shall be directed to [*355] two clerks of the court, or two persons of the county *named by the court, and sworn (n). And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array.

Let us now pause awhile, and observe (with sir Matthew Hale) (o) in these first preparatory stages of the trial, how admirably this constitution is adapted and framed for the investigation of truth beyond any other method of trial in the world. For, first, the person returning the jurors is a man of some fortune and consequence; that so he may be not only the (7) Appendix, No. II. § 4. (m) See page 59.

(6) In New-York, one list of jurors for all causes in the court is made out by the clerk of the county, under the supervision of the sheriff or under-sheriff, and a county judge or justice of the peace, or of two judges or jus tices of the peace. (2 R. 8. 414, § 28.) It is

(n) Fortesc. de Laud. LL. c. 25. Co. Litt. 158. (0) Hist. C. L. c. 12.

no objection to the panel that the sheriff is a party, (id. 420, § 5.) although, by 2 R. S. 441,

84, where the sheriff is a party process is to be executed by the coroner, except where otherwise directed by law,

(73) See Hov. n. (73) at the end of the Vol. B. III.