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 [*334] *the king's host in writing under his seal, which shall be sent to the justices. 2. If, in order to avoid an outlawry, or the like, it was alleged that the defendant was in prison, ultra mare (beyond sea), at Bourdeaux, or in the service of the mayor of Bourdeaux, this should have been tried by the certificate of the mayor; and the like of the captain of Calais. (0) 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 (g) that the certificate of the queen's messenger, sent to summon home a peeress of the realm, 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. (t) 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, because one of the parties is a *privileged person. In this case, the charters confirmed [*335] 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 (n) Litt. § 102. (0) 9 Rep. 31. (p) 2 Roll. Abr. 583. (r) Co. Litt. 74. 4 Burr. 248. (8) Bro. Abr. tit. trial, pl. 96. (u) Co. Litt. 74. (v) 2 Roll. Abr. 583. (q) Dyer, 176, 177. 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 bastardy shall be tried by the bishop's certificate, but by a jury. (3) For a special bastard 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 [*336] legitimate. (2) Ability 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. IV. Trial by witnesses.- A fourth species of trial is that by witnesses, per testes, without the intervention of a jury. 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 (w) Co. Litt. 74. 2 Lev. 250. (x) Hob. 179. (y) Dyer, 79. (z) See Introd. to the Great Charter, edit. Oxon. sub 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. 1 By the rules adopted since the Judicature Act of 1873, it is optional with the parties in civil cases to proceed without a jury, but either party still has a right to demand a jury. See (70) 1105 Sugg v. Silber, 1 L. R. Q. B. D. 362. One of several defendants cannot have a jury without the consent of the rest. Back v. Hay, L. R. 5 Ch. Div. 235. 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 action was duly summoned, or the validity of a challenge to a juror: so that Finch's observation 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.1 *V. Wager of battel.-The next species of trial is of [*337] great antiquity, but much disused; though still in force, if the parties choose to abide by it; I mean the trial by wager of battel. 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 heaven 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, (¿) that the Germans, when first they became known to the Romans, were wont to decide all combats 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 incognita disciplinæ, ut solita armis decerni jure terminarentur" (the introduction of a custom never before heard of; that matters which had always been decided by arms should be determined by law). 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) When allowable.- 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, () of which we shall speak in the next book; and the third upon issue joined in a *writ of [*338] right, the 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 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 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) Trial by battle on a writ of right. Of battle 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 enquire 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 (g) 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" (not without great disturbance of the lawyers), saith Sir Henry Spelman, (t) who was himself a witness of the ceremony. The form, as appears from the authors before cited, is as follows: The champions. 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 the de- [*339] mandant; 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 battle with the champion of the demandant; who, by taking up the gage or glove stipulates on his part to accept the challenge. 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 judgment could be given for the lands in question, if either of the parties were slain in battle; (u) and also that no person might claim an exemption from this trial, as was allowed in criminal cases, where the battle was waged in person. The lists.- 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 (n) Decret. par. 2, caus. 2, qu. 5, c. 22. (m) C. 3, § 23. (0) Appendix, No. I, § 5. (p) Glanvil. 1. 2, c. 3. Vet. Nat. Brev. fol. 2. Nov. Nar. tit. Droit, patent, fol. 221 (edit. 1534). Yearbook 29 Edw. III, c. 12. Finch, L. 421. Dyer, 301. 2 Inst. 247. 2, part 2, fol. 112. 19 Rym. 322. (r) Cro. Car. 512, (u) Co. Litt. 294. Dyversyte des courtes, 304. (q) Rushw. Coll. vol. (t) Gloss. 102. (8) Dyer, 301. 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 knighterranty, from the same origin of judicial combats. But to proceed. Oath of champions.-*When the champions, thus armed [*340] with batons, arrive within the lists or place of combat, the champion of the tenant takes his 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, nor grass; nor any enchantment, 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 combat.-The battle 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 battle, he being already in possession; but, if victory declares itself for either party, for him a judgment is 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 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 (to lose his free law), that is, to become infamous, and not to be accounted liber et legalis homo (a free and lawful man); being supposed 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 battle; a trial which the tenant, or defendant in a writ of right, has it in his election at this day to demand; and which was the only decision of such (v) Sp. L. b. 28, c. 20, 22. |