Sivut kuvina

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 (2); and by jury.

I. First then of the trial by record. This is only used in one [*331] 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 doth 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 the record by him in pleading alleged, or else 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 Coke (b) observes, a record or enrolment is a monument of so high a nature, and importeth 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 (c). 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 (d). And also, whether a manor be to 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 if, but being evidently the object of senses, the judges of the court, upon the testimony of their own sense, 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 de

monstration or other irrefragable proof, there the law departs [*332] *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 (e); 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 nor ; aut per aspectum corporis sui constare poterit justiciariis nostris, si praedictus A sit plenae aetatis necne (f).” 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

() This question of non-age was formerly, ac.

cording to Glanvil, (l. 13, c. 15,) tried by a jury of (d) 9 Rep. 31.

eight men, though now it is tried by inspection.


(0) 1 Inst. 117. 260. (c) 6 Rep. 53.

(e) Ibid.

(2) Wager of battle and of law are abolished in New York. (2 R. S. 409, 9 4.)


oath of voire 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 godfather, or the like (g).

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 (h). Also if a man be found by a jury an idiot a nativitate, he may come in person mto 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 affect (i).

Another instance in which the trial by inspection may be used, is when upon an appeal of maihem, the issue joined is whether it be maihem or no maihem, this shall be decided by the court upon inspection ; for which purpose they may *call in the assistance of surgeons (,). (*333] And, by analogy to this, in an action of trespass for maihem, the court (upon view of such maihem 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 (k); as may also be the case upon view of an atrocious battery (?). 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 hath been tried by an inspection of the almanac by the court. Thus, upon a writ of error from an inferior court, that of Lyon, 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 (m). 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, 1. 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 tried (n) by the certificate of the mareschal of *the king's host in writing under his seal, which shall be sent to [*334) the justices. 2. If, in order to avoid an outlawry,66or the like, it was alleged that the defendant was in prison, ultra mare, at Bourdeaux, or in the service of the mayor of Bourdeaux, this should have been tried by


(g) 2 Roll. Abr. 573.
(A) 9 Rep. 30.
(1) Ibid. 31.
(1) 2 Roll. Abr. 578.

(k) 1 Sid. 108.
(1) Hardr. 408.
(m) Cro. Eliz. 227.

(n) Litt. 9 102.
(66) See Hov. n. (66) at the end of the Vol. B III.


Voi. II.

the certificate of the mayor; and the like of the captain of Calais (6). But when this was law (p), 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 be by certificate from the governor of those islands. We also find (9) that the certificate of the queen's messenger, sent to summon home a peeress of the realn, 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(r); upon a surmise from the party alleging it, that the custom ought to be thus tried : else it must be tried by the country (s). 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 (?). 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 (u), 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, [*335] 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 hath 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 (v): 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 (w). 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 (x): because, whether the plaintiff be found either a general or special bastard, the justification will be good; and no question of special


(0) 9 Rep. 31.
(p) 2 Roll. Abr. 583.
(9) Dyer, 176, 177.
(7) Co. Litt. 74. 4 Burr. 248.
(8) Bro. Abr. tit. trial, pl. 96.

(t) Hob. 85.
(u) Co. Litt. 74,
(*) 2 Roll. Abr. 568.
(10) Co. Litt. 74. 2 Lev. 250.
() Hob. 179.

bastardy shall be tried by the bishop's certificate, but by a jury (y). For a special bastardy 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 (2). Ability [*336] of a clerk presented (a), 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 (b): but induction shall be tried by a jury, because it is a matter of public notoriety (c), and is likewise the corporal investiture of the temporal profits. Resignation of a benefice may be tried in either way (d); but it seems most properly to fall within the bishop's cognizance. 6. The trial of 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 (e). And thus much for those several issues, or matters of fact, which are proper to be tried by certificate (3).

IV. A fourth species of trial is that by witnesses, per testes, without the intervention of a jury (4). 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 favour of the widow, and for greater expedition allowed to be tried by witnesses examined before the judges : and so, saith Finch (f), shall no other case in our law. But sir Edward Coke (g) mentions some others : as to try whether the tenant in a real action67was duly summoned, or the validity of a challenge to a juror : so that Finch's observations 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 (5), (6).

*V. The next species of trial is of great antiquity, but much dis- [*337] used ; though still in force if the parties choose to abide by it (7); 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 hea

(y) Dyer, 79.

(z) See Introd. to the great charter, edit. Oron. Ab anno 1233.

(a) See book I. ch. 11.

(b) 2 Inst. 632. Show. Parl. c. 88. 2 Roll. Abr. 583, &c.

(c) Dyer, 228.
(d) 2 Roll. Abr. 583.
(e) 9 Rep. 31
(L. 423.
(8) Inst. 6.

(3) None of the matters here stated to be equity it is sometimes otherwise, and two witprovable by certificate, would, it is probable, nesses are required, vide post, ch. 27. and be allowed to be proved in that way in New note. York.

(6) See note 1, p. 325, ante. (4) By numerous local acts for the recovery (7) In 1817, 1818, an act was passed to of small debis, the claim of a creditor may be abolish appeals of murder, treason, felony, or sustained by his own oath without the inter- other offences, and wager of battle, or joining vention of a jury.

issue and trial by battle in writs of right. 59 (5) In courts of law, in general, it susfices Geo. III. c. 46. to prove a fact by one witness. In courts of See note 2, p. 330, ante, as to New York.

(67) See Hov. n. (67) at the and of the Vol. B. III,



ven 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 (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 deverni 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 ().

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 (1),680f

which we shall speak in the next book; and the third upon issue [*338] joined in a *writ of right,69the 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 Provi. dence. 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 (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). Or battle therefore on a writ of right (C), 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 (8), it may be matter of curiosity, at least, to inquire into the forms of this

proceeding, as we may gather them from ancient authors (p).

The last trial by battle 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 (1), who (h) Seld. of duels, c. 5.


Nar. tit. Droit. patent, fol. 221. (edit. 1534.) Year.

book. 29 Edw. II. 12. Finch, L. 121. Dyer, 301. li Stiernh. de jure Sucon. I. 1, c. 7. (k) Co. Litt. 261.

(9) Rushw.coll. vol. 2, part 2, fol. 112. 19 Rymn (1) 2 Hawk. P. C. 45. (m) c. 3, 0 23. (n) Decrel. part. 2, caus. 2, qu. 5, c. 22. (0) Appendix, No. I. 95. (p) Glanvil. l. 2, c. 3. Vel. nat. brev. fol. 9. Nov.

(8) Not so now, see note 7, ante, 337.
(68) See Hov. n. (68) at the end of the Vol. B. III. (69) Ibid. (69) B. III.

(í) 1. 2, c. 118.

2 Inst. 247.


(T) Cro. Car. 512.
(8) Dyer, 801.
(1) Gloss. 102.

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