tants; but, above all, the liberty and property of the subject. These will naturally produce an infinite fund of disputes, which must be terminated in a judicial way; and it is essential to a free people, that these determinations be published and adhered to; that their property may be as certain and fixed as the very constitution of their state. For though in many other countries every thing is left in the breast of the judge to determine, yet with us he is only to declare and pronounce, not to make or new-model, the law. Hence a multitude of decisions, or cases adjudged, will arise; for seldom will it happen that any one rule will exactly suit with many cases. And in proportion as the decisions of courts of judicature are multiplied, the law will be loaded with decrees, that may sometimes (though rarely) interfere with each other: either because succeeding judges may not be apprized of the prior adjudication; or because they may think differently from their predecessors; or because the same arguments did not occur formerly as at *present; or, in fine, because of the natural [*328] imbecility and imperfection that attends all human proceedings. But wherever this happens to be the case in any material point, the legislature is ready, and from time to time, both may, and frequently does, intervene to remove the doubt; and, upon due deliberation had, determines by a declaratory statute how the law shall be held for the future. Whatever instances, therefore, of contradiction or uncertainty may have been gleaned from our records, or reports, must be imputed to the defects of human laws in general, and are not owing to any particular ill construction of the English system. Indeed, the reverse is most strictly true. The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law; the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon, by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not like our books of reports, judicial determinations of the court), are all of authority sufficient to be vouched and relied on: which must needs breed great distraction and confusion in their tribunals. The same may be said of the canon law; though the text thereof is not of half the antiquity with the common law of England; and though the more ancient any system of law is, the more it is liable to be perplexed with the multitude of judicial decrees. When, therefore, a body of laws, of so high antiquity as the English, is in general so clear and perspicuous, it argues deep wisdom and foresight in such as laid the foundations, and great care and circumspection in such as have built the superstructure. But is not (it will be asked) the multitude of law-suits, which we daily see and experience, an argument against the clearness and certainty of the law itself? By no means: for *among the various disputes and controversies [*329] which are daily to be met with in the course of legal proceedings, it is obvious to observe how very few arise from obscurity in the rules or maxims of law. An action shall seldom be heard of, to determine a question of inheritance, unless the fact of the descent be controverted. But the dubious points which are usually agitated in our courts, arise chiefly from the difficulty there is of ascertaining the intention of individuals, in their solemn dispositions of property; in their contracts, conveyances, and testaments. It is an object, indeed, of the utmost importance in this free and commercial country, to lay as few restraints as possible upon the transfer of possessions from hand to hand, or their various designations marked out by the prudence, convenience, necessities, or even by the caprice, of their owners: yet to investigate the intention of the owner is frequently matter of difficulty, among heaps of entangled conveyances or wills of a various obscurity. The law rarely hesitates in declaring its own meaning; but the judges are frequently puzzled to find out the meaning of others. Thus the powers, the interest, the privileges, and the properties of a tenant for life, and a tenant in tail, are clearly distinguished and precisely set tled by law but what words in a will shall constitute this or that estate, has occasionally been disputed for more than two centuries past, and will continue to be disputed as long as the carelessness, the ignorance, or singularity of testators shall continue to clothe their intentions in dark or new-fangled expressions. But, notwithstanding so vast an accession of legal controversies, arising from so fertile a fund as the ignorance and wilfulness of individuals, these will bear no comparison in point of number to those which are founded upon the dishonesty, and disingenuity of the parties: by either their suggesting complaints that are false in fact, and thereupon bringing groundless actions: or by their denying such facts as are true, in setting up unwarrantable defences: Fx facto oritur jus: if therefore the fact be perverted or misrepresented, the law which arises from thence will unavoidably be unjust or partial. *And, in order to prevent this, it is necessary to set right the fact, and establish the [*330 ] truth contended for, by appealing to some mode of probation or trial, which the law of the country has ordained for a criterion of truth and falsehood. These modes of probation or trial form in every civilized country the great object of judicial decisions. And experience will abundantly show, that above a hundred of our law-suits arise from disputed facts, for one where the law is doubted of. About twenty days in the year are sufficient in Westminter-hall, to settle upon solemn argument) every demurrer, or other special point of law that arises throughout the nation: but two months are annually spent in deciding the truth of facts, before six distinct tribunals, in the several circuits of England: exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits. Trial, then, is the examination of the matter of fact in issue: of which there are many different species, according to the difference on the subject, or thing to be tried of all which we will take a cursory view in this and the subsequent chapter. For the law of England so industriously endeavours to investigate truth at any rate, that it will not confine itself to one, or to a few, manners of trial; but varies its examination of facts according to the nature of the facts themselves this being the one invariable principle pursued, that as well the best method of trial, as the best 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 and by jury. I. First then of the trial by record. This is only used in one 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 [*331] 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 it, but being evidently the object of sense, the judges of the court, upon the testimony of their own senses, 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 demonstration or other irrefragable proof, there the law [*332] departs *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 not: ut per aspectum corporis sui constare poterit justiciariis nostris, si prædictus A sit plenæ ætatis 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 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 into 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 effect. (i) Another instance in which the trial by inspection may be used, is when upon an appeal of mayhem, the issue joined is whether it be mayhem or no mayhem, this shall be decided by the court upon inspection; for which purpose they may *call in the assistance of surgeons. (j) (1) And, by analogy to this, in [*333] an action of trespass for mayhem, the court (upon view of such mayhem 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. (1) 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 Lynn, 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. (e) 9 Rep. 31. (f) This question of non-age was formerly, according to Glanvil (l. 13, c. 15), tried by a jury of eight men, though now it is tried by inspection. (g) 2 Roll. Abr. 573. ik) 1 Sid. 108. (1) [All appeals of mayhem are now abolished. 59 Geo. III, c. 46.] 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 the justices. 2. If, in order to avoid an outlawry, or the like, [ *334 ] 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 the certificate of the mayor; and the like of the captain af 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 (7) 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 by act of parliament, direct the trial of the [*335] 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 (g) Dyer, 176, 177. in) Litt. § 102. VOL. II.-27 209 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. (y) 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 [*336] return or certify him legitimate. (s) 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. A fourth species of trial is that by witnesses, per testes, without the intervention of a jury. (2) 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, (ƒ) 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. (3) *V. The next species of trial is of great antiquity, but much disused; [*337] though still in force, if the parties choose to abide by it; (4) 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 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, (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 (y) Dyer, 79. (a) See book I, ch. 11. (b) 2 Inst. 632, (c) Dyer, 228. (d) 2 Roll. Abr. 583. (h) Seld. of Duels, c. 5. (i) L. 2, c. 118. (x) Hob. 179. (z) See Introd. to the Great Charter, edit. Oxon. sub anno 1233 (g) 1 Inst. 6 (2) [By numerous local acts for the recovery of small debts, the claim of a creditor may be sustained by his own oath without the intervention of a jury.] (3) [Incourts of law, in general, it suffices to prove a fact by one witness. In courts of equity it is sometimes otherwise, and two witnesses are required. Vide post, ch. 27, and notes.] (4) Appeals of murder, treason, felony, &c., as well as wager of battle, were abolished by statute 59 Geo. III, c. 46. See, as to wager of battle, book iv p. 346, n. Also " Superstition and Force" by H. C. Lea. |