he voluntarily chuses 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, 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. CHAP. XXIII. OF THE TRIAL BY JURY. Some THE subject of our next inquiries 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. authors 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 Nicholsona 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." In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention. Stiernhookd ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was co-temporary with our king Egbert. Just as we are apt to impute the invention of this, and some other pieces of juridical 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 one Hercules whatever atchievement was performed superior to the ordinary prowess of mankind. Whereas the truth seems to be, that this tribunal was universally established among all the northern nations, a de jure Saxonum, p. 12. Lud pii, 4. D. 819. c. 2. c Wilk. LL. Angl. Sax. 117. a de jure Sueonum, l. 1. c. 4. and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other. 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 battel, 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 terræ." A privilege which is couched in almost the same words with that of the emperor Conrad, two hundred years before : 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. 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. 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 e LL. Longob. l. 3. t. S. l. 4. sheriff, to return four knights, who are to elect and chuse twelve others to be joined with them, in the manner mentioned by Glanvil; 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 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; 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. 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 issue between the said parties." And such writ is accordingly issued to the sheriff. 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 f F. N. B. 4. l. 2. c. 11-21. h Finch. L. 412. 1 Leon. 303. i Append. No. II. § 4. 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 Westmoreland 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: 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, nusance, and the like, 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 directions 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 k Semper dabitur dies partibus nerantes prius venerint ad partes a justiciariis de banco, sub tali illas." Bract. l. 3. tr. 1. c. 11. conditione, "nisi justiciarii iti- § 8. |