Front Page Titles (by Subject) 31.: JAMES BRADLEY THAYER, THE OLDER MODES OF TRIAL 1 - Select Essays in Anglo-American Legal History, vol. 2
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31.: JAMES BRADLEY THAYER, THE OLDER MODES OF TRIAL 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 2 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1908). Vol. 2.
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THE OLDER MODES OF TRIAL1
WHEN the Normans came into England they brought with them, not only a far more vigorous and searching kingly power than had been known there, but also a certain product of the exercise of this power by the Frankish kings and the Norman dukes; namely, the use of the inquisition in public administration, i. e., the practice of ascertaining facts by summoning together by public authority a number of people most likely and most competent, as being neighbors, to know and tell the truth, and calling for their answer under oath. This was the parent of the modern jury. In so far as the business of judicature was then carried on under royal authority, it was simply so much public administration; and the use of the inquisition came to England as an established, although undeveloped, part of the machinery for doing all sorts of public business. With the Normans came also another novelty, the judicial duel,—one of the chief methods for determining controversies in the royal courts; and it was largely the cost, danger, and unpopularity of the last of these institutions which fed the wonderful growth of the other.
The Normans brought to England much else, and found that much of what they brought was there already: for the Anglo-Saxons were their cousins of the Germanic race, and had, in a great degree, the same legal conceptions and methods, only less worked out. Looking now at these and at the Norman additions, what were the English modes of trying questions of fact when the jury came in, and how did they develop and die out? Some account of these things will serve as a background in trying to make out the jury.
I. The great fundamental thing, to be noticed first of all, out of which all else grew, was the conception of popular courts and popular justice. We must read this into all the accounts of our earliest law. In these courts it was not the presiding officers, one or more, who were the judges; it was the whole company: as if in a New England town-meeting, the lineal descendant of these old Germanic moots, the people conducted the judicature, as well as the finance and politics, of the town. These old courts were a sort of town-meeting of judges. Among the Germanic races this had always been so; nothing among them was more ancient than the idea and practice of popular justice.1 This notion among a rude people carried with it all else that we find,—the preservation of very old traditional methods, as if sacred; a rigid adherence to forms; the absence of a development of the rational modes of proof. Of the popular courts Maine says, in the admirable sixth chapter of his “Early Law and Custom,” while speaking of the Hundred Court and the Salic Law: “I will say no more of its general characteristics than that it is intensely technical, and that it supplies in itself sufficient proof that legal technicality is a disease, not of the old age, but of the infancy of societies.” The body of the judicial business of the popular courts, seven and eight centuries ago, lay in administering rules that a party should follow this established formula or that, and according as he bore the test should be punished or go quit. The conception of the trial was that of a proceeding between the parties, carried on publicly, under forms which the community oversaw. They listened to complaints which often must follow with the minutest detail certain forms “de verbo in verbum,”1 which must be made probable by a “fore-oath,” complaint-witnesses, the exhibition of the wound, or other visible confirmation. There were many modes of trial and some range of choice for the parties; but the proof was largely “one-sided,” so that the main question was who had the right or, rather, the privilege of going to the proof. For determining this question there were traditional usages and rules, and the decision of it was that famous Beweisurtheil,2 which disposed of cases before they were tried. Since the trial was a matter of form, and the judgment was a determination what form it should take, the judgment naturally came before the trial. It determined, not only what the trial should be, but how it should be conducted and when, and what the consequence should be of this or that result.
In these trials there are various conceptions: the notion of a magical test, like the effect of the angel’s spear upon Milton’s toad—
that of a call for the direct intervention of the divine justice (judicium Dei, Gottesurtheil); that of a convenient form or formula, sometimes having a real and close relation to the probable truth of fact, and sometimes little or no relation to it, like a child’s rigmarole in a game—good, at all events, for reaching a practical result; that of regulating the natural resort of mankind to a fight; that of simply abiding the appeal to chance. There was also, conspicuously and necessarily, the appeal to human testimony, given under an oath, and, perhaps, under the responsibility of fighting in support of it. But what we do not yet find, or find only in its faint germs, is anything such as we know by the name of a trial, any determination by a court which weighs this testimony or other evidence in the scale of reason, and decides a litigated question as it is decided now. That thing, so obvious and so necessary, as we are apt to think it, was only worked out after centuries.1
II. Something must be said of a preliminary matter, of that institution of the complaint-witness,—called also, as some other things were called, the Secta,2 —which has been the source of much confusion. This had a function which was a natural and almost necessary feature of the formal system of proof.3 When the proof was “one-sided,” and allotted to this man or that as having merely the duty of going through a prescribed form to gain his case, it was a very vital matter to determine which party was to have it. If there was to be a trial, it might, indeed, be a privilege to go to the proof; and yet, as the form was often clogged with technical detail and had little or no rational relation to the actual truth of what was involved in the charge, it might be very dangerous and burdensome to be put to the necessity of going through with it. The forms of trial might also involve bodily danger or death. Not every complaint or affirmative defence, therefore, was allowed to put an antagonist to his proof: there must be something to support it. This notion is fixed in the text of John’s Magna Carta (art. 38), in 1215: Nullus ballivus ponat de cetero aliquem ad legem4simplici loquela sua, sine testibus fidelibus ad hoc inductis.5
This sort of “witness,” it must be noticed, might have nothing to do with the trial; he belonged to that stage of the preliminary allegations, the pleading, where belonged also profert of the deed upon which an action or a plea was grounded. But just as rules belonging to the doctrine of profert crept over in modern times, unobserved, into the region of proof, under the head of rules about the “best evidence”1 and “parol evidence,” so the complaint-witnesses were, early and often, confused with proof-witnesses—a process made easy by the ambiguity of the words “testis,” “secta,” and “witness.” The complaint-proof was thus confused with the old “one-sided” witness-proof, with the rational use of witnesses by the ecclesiastical courts, and with the proof by oath and oath-helper.
One complaint-witness seems originally to have been enough, and in the procedure leading to the duel or the grand assize one was always enough; but generally two or more were required; and as in the duel the witness might be challenged, so in other trials the defendant could stake his case on an examination of the complaint-witnesses, and if they disagreed among themselves he won. Apart from this, the complaint-witnesses need not be sworn; they might be relatives or dependents of the party for whom they appeared. As they were not necessarily examined at all, so in later times they were not even produced, and only the formula in the pleadings was kept up. In this form, as a mere expression in pleading, et inde producit sectam, the secta continued to live a very long life; so that within our own time we read as the third among Stephen’s “principal rules of pleading,” that “the declaration should, in conclusion, lay damages and allege production of suit. . . . This applies to actions of all classes. . . . Though the actual production has for many centuries fallen into disuse, the formula still remains, . . . ‘and therefore he brings his suit,’ ” etc.1 It even survived the Hilary rules of 1834.
It was the office of the secta to support the plaintiff’s case, in advance of any answer from the defendant. This support might be such as to preclude any denial, as where one was taken “with the mainour” and the mainour produced in court,2 or where the defendant’s own tally or document was produced, or, as we have noticed, where a defendant chose to stake his case on the answers of the secta. Documents, tallies, the production of the mainour, the showing of the wound in mayhem, all belong under this general conception. The history of our law from the beginning of it is strewn with cases of the profert of documents. This last relic of the principle of the Saxon fore-oath and the Norman complaint-witness was not abolished in England until 1852.1
A few cases will illustrate what has been said about these things. In 12022 in the King’s Court, an appeal was brought for assaulting the plaintiff and wounding him with a knife in the jaw and arm, “and these wounds he showed,3 and this he offers to prove . . . by his body.” In 12264 William seeks to recover of Warren twelve marks on account of a debt due from his father for cloth, et inde producit sectam que hoc testatur. Warren comes and defends, and asks that William’s secta be examined. This is done, and the secta confess that they know nothing of it, and moreover they do not agree (diversi sunt in omnibus rebus); and William has no tally or charter and exhibits nothing, and it is adjudged therefore that the defendant go quit. In 12295 Ada demands of Otho eleven pounds, which her father had lent him, and makes profert of a tally, and produces a secta which testifies that he owes the money. Otho denies it, and is adjudged to make his proof with compurgators—defendat se duodecima manu.6 A case in 1323 draws attention to the exact effect of the complaint-proof.1 A woman claimed dower, alleging that her husband had endowed her assensu patris, and put forward a deed which showed the assent. The defendant traversed; some discussion followed as to how the issue was to be tried, and as to the effect of the deed. Counsel for the defendant said, “The deed which you show effects nothing beyond entitling you to an answer.” . . . Counsel for the plaintiff: “True, but . . . he can only have such issue as the deed requires.”
With the gradual discrediting of party proof and the formal procedure, the secta steadily faded out. The “Mirror,” which appears to have been written not long before 1290,2 says: “It is an abuse that a plaint should be received and heard where there are no suitors presented to testify that the plaint is true.”3 As early as 13144 we find counsel saying that the Court of Common Bench will not allow the secta to be examined. Yet ten years later,5 a demand for examining the secta reveals the fact that the plaintiff has none; and this defeats his claim, as it had defeated a plaintiff’s claim in 1199.6 Finally, in 1343,7 in an action of debt for money due, partly under a bond and partly by “contract,” the court refused an examination of the secta. We read: “Rich: As to the obligation, we cannot deny it; as to the rest, what have you to show for the debt? Moubray: Good suit (secta). Rich: Let the suit be examined at our peril. Moubray: Is that your answer? Rich: Yes, for you furnish suit in this case of contract in lieu of proof of the action. Moubray: Suit is only tendered as matter of form in the count; wherefore we demand judgment. Sh. (J.):1 It has been heard of that suit was examined in such cases, and this opinion was afterwards disapproved (reprove). Sh. (J.):1 Yes, the same Justice who examined the suit on the issue [pur issue] saw that he erred and condemned his own opinion. Gayneford: In a plea of land the tendering of suit is only for form, but in a plea which is founded on contract that requires testimony, the suit is so examinable [tesmoinable] that, without suit, if the matter be challenged, the [other] party is not required to answer. Sh. (J.): Certainly it is not so; and therefore deliver yourselves. Rich: No money due him,” etc. The thing is evidently antiquated by this time. And yet, as we saw, it continued as a form in pleading for nearly five centuries longer.
III. The old forms of trial (omitting documents) were chiefly these: (1) Witnesses; (2) The party’s oath, with or without fellow-swearers; (3) The ordeal; (4) Battle. Of these I will speak in turn. They were companions of trial by jury when that mighty plant first struck its root into English soil, and some of them lived long beside it. But, as we shall see, while that grew and spread, all of these dwindled and died out.2
(1) Trial by Witnesses.—This appears to have been one of the oldest kinds of “one-sided” proof. There was no testing by cross-examination; the operative thing was the oath itself, and not the probative quality of what was said, or its persuasion on a judge’s mind.1 Certain transactions, like sales, had to take place before previously appointed witnesses. Those who were present at the church door when a woman was endowed, or at the execution of a charter, were produced as witnesses. In case of controversy it was their statement, sworn with all due form before the body of freemen who constituted the popular court, that ended the question.2 In order to show the purely formal character of this sort of proof in the period of the Frankish kings, even where counter-witnesses were allowed, Brunner refers to a capitulary of Louis le Débonnaire, of the year 819, quoted below in a note. It will be observed that while he who suspects that witnesses produced against him are false may bring forward counter-witnesses, yet if the two sets differ hopelessly, the only solution of the difficulty that offers is to have witnesses from each side fight it out together.3
An English illustration of the old trial by witnesses, of the date of 1220-1, and bearing marks of antiquity then, is found in the Liber Albus,1 where, before Hubert de Burgh and his associate justices, the citizens of London answer as to the way in which certain rents may be recovered in London, viz., by writ of “Gavelet,” in which, if the tenants deny the servitium, the claimant shall name sectam suam, scilicet duos testes, who are to be enrolled, and produced at the next hustings. “And if on this day he produce the witnesses and it is shown by them ut de visu suo et auditu, . . . the complainant shall recover his land in demesne.” This is also incorporated in the “Statute of ‘Gavelet’ ” usually referred to as 10 Edward II. (1316).2
But even earlier than this, here, as also in Normandy,3 the old mere party proof by witnesses had, in the main, gone by. Things indicate the breaking up and confusing of older forms; anomalies and mixed methods present themselves. The separate notions of the complaint secta, the fellow-swearers, the business witnesses, the community witnesses, and the jurors of the inquisition and the assize run together. It is very interesting to find that, as the Norman law contemporaneous with our earliest judicial records shows the same breaking up and confusion as regards this sort of trial which we remark in England, so it is the same classes of cases in both countries that preserve the plainest traces of it. “In my opinion,” says Brunner,4 “undoubtedly we are to include under the head of the formal witness-proof these: (1) The proof of age; (2) The proof of death; . . . (3) The proof of property in a movable chattel.”
(a) Age.—In a case of 1219, in the Common Bench,1 where the defendant alleged the minority of the plaintiff, the plaintiff replied that he was of full age, and thereof he put himself on the inspection of the judges, and if they should doubt about it he would prove it either by his mother and his relatives, or otherwise, as the court should adjudge. The judges were in doubt, and ordered that he prove his age by twelve legal men, and that he come with his proof “on the morrow of souls.”2 Now these twelve are not at all a “jury,” for the party selects them himself. At the page of Bracton’s treatise where he cites this case, he tells us that in these cases the proof “is by twelve legal men, or more if there be need, some of whom are of the family . . . and some of whom are not;” and he gives the form of oath, which is a very different one from that of the jury. First, one of them swears that the party is or is not twenty-one if a man, or fourteen or fifteen if a woman—sic me Deus adjuvet et sancta Dei evangelia; and then in turn each of the others swears that the oath thus taken is true.
In a peculiarly interesting part of his great work on the jury, Brunner points out that the old witness-proof was in some cases transformed at the hands of the royal power into an inquisition, so that the witnesses were selected by the public authority, as they were in the ordinary jury.3 We seem to see this way of blending things in the English process de aetate probanda. In 13974 we read, after the statement that the king’s tenants, on coming of age, in order to recover their lands must sue out a writ of aetate probanda, that those who serve on the inquest must be at least forty-two years old, “and shall tell signs to prove the time of the birth, as that the same year there was a great thunder, tempest, or pestilence, and the like; and all these signs shall be returned by the sheriff.” And the reporter puts it as a query whether, since this is proof by witnesses (per proves), there may be less than twelve. The requiring of the age of forty-two points to the idea that they must have been of an age to be a witness when the child was born. By 15151 this doubt seems to have been settled: “It was agreed that the trial of his age shall be by twelve jurors; but in giving their verdict every juror should show the reason inducing his knowledge of the age, such as being son gossipe, or that he had a son or daughter of the same age, or by reason of an earthquake or a battle near the time of the birth, and the like.” Quaint illustrations of these examinations, of the year 1409, are found in the Liber de Antiquis Legibus.2 In one of these cases, relating to a woman’s age, each of the twelve makes his statement separately, and each is asked how he knows it. One, sixty years old, says that he fixes the age by the fact that he saw the child baptized; they had a new font, and she was the first person baptized from it. Another, a tailor of the same age, says that he held a candle in the church on the day of baptism, and also made the clothes which the mother wore at her purification. Two others, over fifty, fix the day by a great rain and flood which made the river overflow, and filled the hay with sand. Two others recollect that their hay from six acres of meadow was carried away by the flood. Two others remember it by a fire that burned a neighbor’s house. Another by the fact that he was the steward of the child’s grandfather, and was ordered by him to give the nurse who told him the news twenty shillings; and so on. Similar details may be found in a record of 12973 and in manorial documents of 1348.4 It is easy, then, to see how in this sort of case the old proof by witnesses should gradually fade out into trial by jury; for the old jury was nothing but a set of triers made up of community witnesses selected by the king’s authority. The old mode of trying age by the inspection of the judges, which we saw in 1219, was practised long; but the general rule became established in all such cases that the judges, if in doubt, might refer the matter to a jury.1
(b) Ownership of Chattels.—There were other sorts of transformation. We have seen2 how the old law could admit counter-witnesses without destroying the formal nature of the proof. With the refinement of procedure, affirmative defences came to be more distinctly recognized; each party had to produce a complaint secta. There grew up the practice (whether by consent of parties or otherwise) of disposing of the case by examining these, and deciding it according as one secta was larger than the other, or composed of more worthy persons; and, if it was impossible to settle it on such grounds, of going to the jury. The secta in such cases turned into proof-witnesses. It was chiefly such a class of cases, presently to be mentioned, that brought down into our own century the name of “trial by witnesses,” and the fact of a common-law mode of trial which had not sunk into the general gulf of trial by jury.
In 1234-53 there came up to the king’s court a record of proceedings in the hundred court of a manor of the Bishop of Salisbury. A mare had been picked up in the manor, and one William claimed her in the hundred court and took her, on producing a sufficient secta and giving pledges to produce the mare and abide the court’s order for a year and a day, according to the custom of the manor. One Wakelin de Stoke then appeared as claimant, and the steward required each to come on a day with his secta. They came, et Wakelinus producit sectam quod sua est, et similiter Wilhelmus venit cum secta sua, dicens quod sua fuit et ei pullanata (i. e., foaled). The hundred court, finding itself puzzled and not knowing cui incumbebat probacio, postponed judgment pro afforciamento habendo (i. e., semble, in order that the parties might increase their sectas). Then Wakelin appeared with a writ removing the case to the king’s court at Westminster. At Westminster William produced his secta, and they differed in multis, et in tempore et in aliis circumstanciis, some of them saying that William bought the mother of the mare four years ago, and she was then pregnant with her and had a small white star on her forehead; and some that it was six years ago and she had no star; and some agreeing in the time but differing about the mark,—some of them saying she had no star, but only some white hairs on her forehead, and some that she had no star at all. Wakelin produced a secta that wholly agreed, all saying that on such a day, four years back, Wakelin came and bought a sorrel (soram) mare with a sucking colt, and gave the colt to one John to keep. They were questioned about marks, and entirely agreed in saying that the colt had the left ear slit and part of the tail cut off, and that she was black. A view was taken of the colt, and she was not more than four years old at most, or three years and a half at least. Then an official of the manor, Thomas de Perham, said that Wakelin, before he saw the mare in question, told her color and all the marks by which she could be identified, and that William, when he was questioned, did not know her age, and said nothing distinct, except that she was foaled to him. The case, however, went down again for judgment, because the Bishop of Salisbury claimed his jurisdiction; et quia secta quam Wilhelmus producit non est sufficiens nec aliquid probat et quia loquela incepta fuit infra libertatem episcopi . . . concessa est ei et teneat unicuique justiciam.1
(c) Death.—But the typical sort of case, and the longest-lived, is what Selden instances2 when he says: “But some trials by our law have also witnesses without a jury; as of the life and death of the husband in dower and in cui in vita.” This continued in England until the end of the year 1834. A case or two will illustrate this proceeding.
In 13081 Alice brought a cui in vita, and Thibaud, the tenant, answered that the husband was living. The woman offered proof that he was dead, hanged at Stamford; the tenant the same, that he was alive, issint que celui que mend provereit mend avereit. “Alice came and proved her husband’s death by four juretz, who agreed in everything; and because Thibaud’s proof was mellour et greyneure than the woman’s proof, it was adjudged that she take nothing by her writ.” In Fitzherbert,2 what seems to be the same case is briefly referred to, and there we read that they were at issue, issint cesti que mieulx prove mieulx av.; and the tenant proves by sixteen men, etc., and the demandant by twelve; and because the tenant’s proof “fuit greindr than the demandant’s, it was awarded,” etc. If we take Fitzherbert’s account to be accurate, it might appear that the twelve men on each side cancelled each other, and left a total of four to the credit of the tenant, a result which made his proof the better.3 This old catch of qui mieulx prove mieulx av., a pretty certain badge of antiquity, appears again sixty years later. A woman brought an appeal for her husband’s death. The defendant said he was alive. The parties were directed to bring their witnesses, et celui qui meuch prova meuch av.4 In 1560, in the interesting case of Thorne v. Rolff,5 we have an instance where, in dower, issue was taken on the death or life, and the parties were called on to inform the court “per proves, [i. e., witnesses] ut oportet.” The demandant brought two, “who were sworn and examined by Leonarde, second prothonotary.” These statements are entered in full on the record, which is all given in Benloe’s report. The two statements occupy about a page of the folio. Then it is recorded that the tenant produced no witnesses, and the court admits what is offered, as bonam, probabilem et veram probationem, and gives judgment for the demandant. Dyer connects this with the old law by citing Bracton, 302, where he speaks of deciding in such cases according to the probatio magis valida. The number, rank, and position of the witnesses are what Bracton alludes to.1 But it is probable that by the time of Thorne v. Rolff the rational method of conducting the “trial by witnesses” had taken place; for Coke, half a century later,2 in enumerating “divers manners of trials,” designates this as “trial by the justices upon proofs made before them;” and so Comyns, a hundred years afterwards.3 Blackstone, however, later in the last century,4 and Stephen,5 pour back again this new wine into the old bottles and call this wholly modern thing by the old name of “trial by witnesses.” Blackstone’s explanation of it shows little knowledge of its history. At last this venerable and transformed relic of the Middle Ages was abolished in England, when real actions came to an end by the statute of 1833.
(2) Trial by Oath.—As the Anglo-Saxons required from a plaintiff the taking of a fore-oath, so the defendant was allowed sometimes to clear himself merely by his own oath; the case was “tried” by that alone. But the great mediæval form of trial by oath was where the party swore with oath helpers—compurgation. In the Salic Law, that “manual of law and legal procedure for the use of the free judges in the oldest and most nearly universal of the organized Teutonic courts, the court of the hundred,”6 in the fifth century, we find it.7 It continued among the Germanic people in full force. These fellow-swearers were not witnesses; they swore merely to the truthfulness of another person’s oath, or, as it was refined afterwards, to their belief of its truth. It was not requisite that they should have their own knowledge of the facts. Although constantly called by the ambiguous name testis, they were not witnesses. They might be, and perhaps originally should be, the kinsmen of the party.1
In our own early books this was a great and famous “trial,” and its long survival has made it much more familiar to the modern English student than some of its mediæval companions. It was the chief trial in the popular courts, and as regards personal actions, in the king’s courts, where, in real actions also, it was resorted to in incidental questions.2 In the towns it was a great favorite. An early and quaint illustrations of it is found in the Custumal of Ipswich, drawn up about the year 1201 by way of preserving the old usages of the town, and again compiled a hundred years later because of the loss of the older copy.3 In debt between citizens of the town, the party who had to prove his case was to bring in ten men; five were set on one side and five on the other, and a knife was tossed up in the space between them. The five towards whom the handle lay were then set aside; from the other five one was removed, and the remaining four took the oath as compurgators.
In criminal cases in the king’s courts, of the graver sort at any rate, compurgation is thought to have disappeared in consequence of what has been called “the implied prohibition” of the Assize of Clarendon, in 1166.4 But it remained long in the local and in the ecclesiastical courts.1 Palgrave2 preserves as the latest instances of compurgation in criminal cases that can be traced, some cases of 1440-1, in the Hundred Court of Winchelsea in Sussex. They are cases of felony, and the compurgation is with thirty-six neighbors. They show a mingling of the old and the new procedure. On April 4, 1435, Agnes Archer was indicted by twelve men, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. Agnes adducta fuit in pleno hundredo . . . modo felonico, nuda capite et pedibus, discincta, et manibus deligatis; tendens manum suam dexteram altam, per communen clericum arreinata fuit in his verbis (and then follows in English a colloquy): “Agnes Archer, is that thy name? which answered, yes. . . . Thou are endyted that thou . . . felonly morderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed. . . . I am not guilty of thoo dedys, ne noon of hem, God help me so. . . . How wylte thou acquite the? . . . By God and by my neighbours of this town.” And she was to acquit herself by thirty-six compurgators to come from the vill of Winchelsea, chosen by herself.3
The privilege of defending one’s self in this way in pleas of the crown was jealously valued by the towns; it was easier and safer than the jury. London had it in its charters. In the few Anglo-Saxons words of the first short charter granted by the Conqueror and still “preserved with great care in an oaken box amongst the archives of the city,”4 there is nothing specific upon this. But in the charter of Henry I., s. 6, the right of a citizen is secured in pleas of the crown, to purge himself by the usual oath; and this is repeated over and over again in charters of succeeding kings.1 Henry III, in his ninth charter, cut down the right, by disallowing a former privilege of the accused to supply the place of a deceased compurgator by swearing upon his grave.2 There was the “Great Law,” in which the accused swore with thirty-six freemen (six times, each time with six), chosen, half from the freemen of the east side of the rivulet of Walbrook, and half from the west; they were not to be chosen by the accused himself, nor to be his kinsmen or bound to him by the tie of marriage or any other. The accused might object to them for reasonable cause; they were chosen and struck, much after the way of a modern special jury. The “Middle Law” and “Third Law” were like this, but had eighteen and six compurgators respectively.3 In civil cases of debt and trespass, compurgation with six others was the rule in London; or, if the defendant was not a resident, with only two others. If he had not two, then the foreigner was to be taken by a sergeant of the court to the six churches nearest, and to swear in each.4
In the king’s courts, the earliest judicial records have many cases of this mode of trial; e. g. in 1202, in the Bedfordshire eyre, where, in an action for selling beer in the borough of Bedford by a false measure, the defendant was ordered to defend herself “twelve-handed;” and she gave pledges to make her “law” (vadiavit legem.)5 In 1382,6 among the measures of relief from litigation following acts done in the recent insurrections, people charged with trespasses are allowed purgare se by three or four fellow-swearers. In Wales the assache was in existence in 1413, requiring the oath of three hundred persons, and it was found necessary in St. 1 Henry V. c. 6, to relieve those who had been loyal in a late rebellion from the hardships of so formidable a “trial.”
From being a favored mode of trial, this “law,” or, as it is commonly called, “wager of law,” from its preliminary stage of giving pledges to perform it, steadily tended to become a thing exceptional; not going beyond the line of the precedents,1 and within that line being a mere privilege, an optional trial alongside of the growing and now usual trial by jury. In the newer forms of action it was not allowed, and finally it survived mainly in detinue and debt.2 Yet within a narrow range it held a firm place.3 In 1440,4 in debt for board, Yelverton, for plaintiff, tried to maintain that the defendant could not have his law of a thing “which lies in the conusance of the pais.” But the court held otherwise and the defendant had his law. In 1454-5,5 there was a great debate among the judges over a demurrer to a plea of non-summons in a real action, with “ready to aver per pais.” It was insisted by Prisot (C. J.) that this lay in the knowledge of the pais, and that all such things should in reason be triable by the jury. He admitted, however, that the practice had been otherwise. His associates, Danvers and Danby, agreed with him; while Moile and Ayshton pressed strongly the more conservative doctrine. “This will be a strong thing,” said Moile; “it has not been done before.” “Since waging law,” said Ayshton, “has always been practised, and no other way, this proves, in a way, that it is un positive ley. All our law is directed (guide) by usage or statute; it has been used that no one wages his law in trespass, and the contrary in debt; so that we should adjudge according to the use,” etc. No decision in the case is reported. But Brooke, in his Abridgment, in the next century, gives the latter view as optima opinio.1
In 1492,2 Sebastian Giglis “merchaunt of Venyce,” complains to the Chancellor against Robert Welby, as having exposed him to the repayment of money advanced to Robert by a third party at the plaintiff’s request, by waging his law “as an untrue Cristenman,” when sued for it by this third party, who has now come upon the plaintiff and demands it of him. Robert had signed a “bill” for it, but nothing under seal. Robert’s answer admitted receiving the money, but set forth that he was acting as an agent of King Richard III. and “wrote a bill of receipt . . . to the intent that the said bill . . . might have been a remembrance to the said late King for repayment of the said sum.” After a hearing the Chancellor decreed that inasmuch as the defendant admitted receiving the money and showed no payment or exoneration, or any reasonable ground for being exonerated, he should pay the money to the plaintiff. The effect of this case seems to be overstated by Spence,3 in saying that the merchant was relieved “from the consequences of the defendant having waged his law. . . . This interference of the Court of Chancery no doubt had its effect in causing this ancient mode of proof . . . to go into disuse.” The case is, indeed, very significant, but it will be remarked that the court by no means directly relieved the party himself, who had lost by a good and established form of trial. It relieved Sebastian, and not the plaintiff in the other litigation.
A century later, in 1587,4 when compurgation had become less usual, and, in the eyes of the Chancellor, almost archaic, we read that the Star Chamber refused to deal with one who was alleged to have sworn falsely in making his law; “the reason was because it was as strong as a trial. And the Lord Chancellor demanded of the judges if he were discharged of the debt by waging of his law; and they answered ‘yea.’ But Manwood (C. B.) said that it was the folly of the plaintiff, because that he may change his action into an action of the case upon an assumpsit, wherein the defendant cannot wage his law.” In his report of Slade’s Case (1602) Coke remarks1 that courts will not admit a man to wage his law without good admonition and due examination.
After another century this procedure still keeps its place, but it is strange, and the profession has lost the clue. In 1699, in the Company of Glaziers Case,2 in debt on a by-law, the defendant had his law. When he came with his compurgators, the plaintiff’s counsel urged that the court need not receive him to his oath if he were swearing falsely or rashly; “sed, per Holt, C. J., ‘We can admonish him, but if he will stand by his law, we cannot hinder it, seeing it is a method the law allows.’ ” The reporter takes the pains to describe the details of the proceedings, as if they were unfamiliar;3 and at the end of it all he adds: “Per Northey (plaintiff’s counsel), this will be a reason for extending indebitatus assumpsits further than before. Holt, C. J. We will carry them no further.” In the next case,4 where, in a similar matter, two or three years later, the court refused wager of law in debt on a by-law, Holt, C. J., said that the plaintiff’s counsel yielded too much in the Glaziers Case: “It was a gudgeon swallowed, and so it passed without observation.” In 1701-2 came a great case,1 where, in debt on a city bylaw, for a penalty for refusing to serve as sheriff, the defendant offered to make his law with six freemen of the city, according to the custom of London. The plaintiff demurred. Much that was futile was said of wager of law. We are told by Baron Hatsell2 that it lies only “in respect of the weakness and inconsiderableness of the plaintiff’s . . . cause of demand . . . in five cases: first, in debt on simple contract, which is the common case; secondly, in debt upon an award upon a parol submission; thirdly, in an account against a receiver; . . . fourthly, in detinue; . . . fifthly, in an amerciament in a court baron or other inferior courts not of record.” Holt rationalized the matter in a different way:3 “This is the right difference, and not that which is made in the actions, viz., that it lies in one sort of action and not in another; but the true difference is when it is grounded on the defendant’s wrong; . . . for if debt be brought and . . . the foundation of the action is the wrong of the defendant, wager of law will not lie.” And again,4 “The secrecy of the contract which raises the debt is the reason of the wager of law; but if the debt arise from a contract that is notorious, there shall be no wager of law.”
In the latter half of the eighteenth century it was nearly gone. Blackstone tells us: “One shall hardly hear at present of an action of debt brought upon a simple contract,” but of assumpsit for damages, where there could be no wager of law; and so of trover instead of detinue. “In the room of actions of account a bill in equity is usually filed. . . . So that wager of law is quite out of use; . . . but still it is not out of force. And therefore when a new statute inflicts a penalty and gives . . . 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 that he had never incurred or else had discharged it.”1
The validity of this ancient trial was, indeed, recognized by the Court of Common Pleas in 1805,2 but in 1824, when for the last time it makes its appearance in our reports,3 it is a discredited stranger, ill understood: “Debt on simple contract. Defendant pleaded nil debet per legem. . . . Langslow applied to the court to assign the number of compurgators. . . . The books [he says] leave it doubtful. . . . This species of defence is not often heard of now. . . . Abbott, C. J. The court will not give the defendant any assistance in this matter. He must bring such number of compurgators as he shall be advised are sufficient. . . . Rule refused. The defendant [say the reporters] prepared to bring eleven compurgators, but the plaintiff abandoned the action.” It had turned out, then, to be not yet quite a ghost; and so in 18334 it was at last enacted by Parliament “that no wager of law shall be hereafter allowed.” Palgrave5 had lately pointed out with accuracy the old and the later legal situation: “An inquest or jury, in civil causes, was never adopted according to the usual course of the popular courts of Anglo-Saxon origin, unless by virtue of the king’s special precept.” In an action begun there by the writ which empowered the sheriff to act as the king’s justiciar, an inquest might be summoned; “but if the suit was grounded upon a plaint the opinion of the suitors or the compurgatory oath constituted the common-law trial. . . . The same rule was observed in the manorial courts, in which by common right all pleas were determined by wager of law. . . . Even in the king’s court the incidental traverses in a real action, such as the denial of the summons by the tenant, were always determined by compurgators; and in all personal actions wager of law was the regular mode of trial, until new proceedings were instituted which enabled the judges to introduce the jury trial in its stead. But this silent legislation has not destroyed the Anglo-Saxon trial [his preface is dated Feb. 1, 1832]; it is out of use, but not out of force; and it may, perhaps, continue as a part of the theory of the law until some adventurous individual shall again astonish the court by obtaining his privilege, and by thus informing the legislature of its existence, insure its abolition.”
(3) The Ordeal.—Of trial by the ordeal (other than the duel) not much need be said. Nothing is older; and to this day it flourishes in various parts of the world. The investigations of scholars discover it everywhere among barbarous people, and the conclusion seems just that it is indigenous with the human creature in the earliest stages of his development.1 Like the rest, our ancestors had it. Glanvill,1 for instance (about 1187), lays it down that an accused person who is disabled by mayhem tenetur se purgare . . . per Dei judicium . . . scilicet per callidum ferrum si fuerit homo liber, per aquam si fuerit rusticus.2 This was found to be a convenient last resort, not only when the accused was old or disabled from fighting in the duel, but when compurgators or witnesses could not be found or were contradictory, or where for any reason no decision could otherwise be reached.
In our earliest judicial records the ordeal is found often. The earliest of these cases which is assignable to any precise year is one of 10 Rich. I. (1198-9),1 where, on an appeal of death, by a maimed person, two of the defendants are adjudged to purge themselves by the hot iron. But within twenty years or so this mode of trial came to a sudden end in England, through the powerful agency of the Church,—an event which was the more remarkable because Henry II., in the Assize of Clarendon (1166) and again in that of Northampton (1176), providing a public mode of accusation in the case of the larger crimes, had fixed the ordeal as the mode of trial. The old form of trial by oath was no longer recognized in such cases in the king’s courts. It was the stranger, therefore, that such quick operation should have been allowed in England to the decree, in November, 1215, of the Fourth Lateran Council at Rome. That this was recognized and accepted in about three years (1218-19) by the English crown is shown by the well-known writs of Henry III. to the judges, dealing with the puzzling question of what to do for a mode of trial, cum prohibitum sit per Ecclesiam Romanam judicium ignis et aquae.2 I find no case of trial by ordeal in our printed records later than Trinity Term of the 15 John (1214). We read then of several cases.1 One Ralph, accused of larceny, is adjudged to purge himself by water; he did clear himself, and abjured the realm. And so in another exactly like case of murder. It was the hard order of the Assize of Clarendon that he who had come safely through the ordeal might thus be required to abjure the realm, a circumstance which recalls the shrewd scepticism of William Rufus when he remarked of the judicium Dei that God should no longer decide in these matters,—he would do it himself.2 In a third case a person was charged with supplying the knife with which a homicide was committed, and was adjudged to purge himself by water of consenting to the act. He failed, and was hanged.
In England, then, this mode of trial lived about a century and a half after the Conquest, going out after Glanvill wrote, and before Bracton. The latter is silent about it.
The “Mirror,” written, as Maitland conjectures, between 1285 and 1290, regrets that it has gone by. “It is an abuse,” says the writer, “that proofs and purgations are not made by the miracle of God where no other proof can be had.”1 In 1679 a defendant astonished the court by asking to be tried by the ordeal.2
The conception which was at the bottom of the ordeal and compurgation is often misunderstood. Thus Palgrave3 says that under the arrangements of the Assize of Clarendon “the ordeal was, in fact, only a mode of giving to the culprit a last chance of escaping the punishment of the law.” And so Stubbs:4 “The ordeal, in these circumstances being a resource following the verdict of a jury acquainted with the fact, could only be applied to those who were to all intents and purposes proved to be guilty.” No, the ordeal was simply a mode of trial; or, as they phrased it in those days, of clearing one’s self of a charge. And so, while it gave way, after the Lateran Council decree, to trial by jury, the old accusing jury persisted and still persists.
Modern civilization occasionally feels nowadays the want of some substitute for these old tests, in cases where there is very strong ground of suspicion, but full legal proof is wanting. Compare the convenient ecclesiastical compurgation, e. g. in the sentence of the Archbishop of Canterbury, in 1631, in Hooke’s case.5 After deciding against Hooke on some points he adds: “For his simony I vehemently suspect him, and therefore [he is] to purge himself 7amanu.”
(4) Trial by Battle.—This is often classified as an ordeal, “a God’s judgment,” but in dealing with our law it is convenient to discriminate it from the ordeals, for the battle has other aspects than that of an appeal to Heaven. Moreover, it survived for centuries the ordeal proper. It had, also, no such universal vogue. Although it existed among almost all the Germanic people, the Anglo-Saxons seem not to have had it;6 but with the Normans it came into England in full strength. In Glanvill, a century after the Conquest, we see it as one of the chief modes of trial in the king’s courts: “A debt . . . is proved by the court’s general mode of proof, viz., by writing or by duel.”1 “They may come to the duel or other such usual proof as is ordinarily received in the courts,” etc.2 Of the inferior courts, also, we are told that in a lord’s court a duel may be reached between lord and man, if any of the man’s peers makes himself a witness and so champion.3 He, also, who gave the judgment of an inferior court might, on a charge of false judgment, have to defend the award in the king’s court by the duel, either in person or by a champion.4 And so elsewhere.
There is sufficient evidence that it was, at first, a novel and hated thing in England. In the so-called “Laws of William the Conqueror,” it figures as being the Frenchman’s mode of trial, and not the Englishman’s. In a generation after the Conquest, the charter of Henry I. to the city of London grants exemption from it; and the same exemption was widely sought and given, e. g., in Winchester and Lincoln.5 The earliest reference to the battle, I believe, in any account of a trial in England, is at the end of the case of Bishop Wulfstan v. Abbot Walter, in 1077.6 The controversy was settled, and we read: “Thereof there are lawful witnesses . . . who saw and heard this, ready to prove it by oath and battle.” This is an allusion to a common practice in the Middle Ages, that of challenging another’s witness;7 or perhaps to one method of disposing of cases where adversary witnesses were allowed, and these contradicted each other. Brunner8 refers to this, with Norman instances of the dates 1035, 1053, and 1080, as illustrating a procedure which dated back to the capitulary of 819, quoted above.9 Thus, as among nations still, so then in the popular courts and between contending private parties, the battle was often the ultima ratio, in cases where their rude and unrational methods of trial yielded no results.
In a great degree it was for the purpose of displacing this dangerous, costly, and discredited mode of proof that the recognitions—that is to say, juries in their first organized form—were introduced. These were regarded as a special boon to the poor man, who was oppressed in many ways by the duel.1 It was by enactment of Henry II. that this reform was brought about, first in his Norman dominions (in 1150-52), before reaching the English throne, and afterwards in England, sometime after he became king, in 1154. Brunner (to whom we are indebted for the clear proof of this) remarks upon a certain peculiar facility with which the jury made head in England, owing, among other reasons, to the facts (1) that the duel was a hated and burdensome Norman importation, and (2) that among the Anglo-Saxons, owing to the absence of the duel, the ordeal had an uncommonly wide extension, so that when, a generation later than the date of Glanvill’s treatise, the ordeal was abolished, there was left an unusually wide gap to be filled by this new, welcome, and swiftly developing mode of trial.2 The manner in which Glanvill speaks of the great assize is very remarkable. In the midst of the dry details of his treatise we come suddenly upon a passage full of sentiment, which testifies to the powerful contemporaneous impression made by the first introduction of the organized jury into England.3
Selden has remarked upon the small number of battles recorded as actually fought.1 The society which bears his honored name is now bringing to light cases of which he probably never heard.2 Such traces of the duel and the ordeal in England as are found before Glanvill’s time are collected in Bigelow’s valuable Placita Anglo Normannica. Very early cases from Domesday Book, compiled by William within twenty years of the Conquest, are found here.3 Selden refers to a civil case in Mich. 6 Rich. I. (1194), as “the oldest case I have read of.”4 This may be the case in Vol. I. of the Rotuli Curiae Regis, 23-24, 26, which appears to be the earliest one reported in the judicial records. Although the demandant here hoc offert probare versus eum per Radulphum filium Stephani, qui hoc offert probare ut de visu patris sui per corpus suum sicut curia consideraverit, and the defendant came and defended the right and inheriting of (the plaintiff), et visum patris Radulphi filii Stephani, per Johannem . . . qui hoc offert defendere per corpus suum consideracione curiae,—yet the case appears to have gone off without the battle, on another point. But this record shows the theory of the thing. The plaintiff offers battle and puts forward a champion who is a complaint-witness, and who speaks as of his personal knowledge or, as in this case, on that of his father,5 and stands ready to fight for his testimony. Before the battle the two champions swear to the truth of what they say.
In the mother-country, Normandy, one might hire his champion; but in England, theoretically, it was not allowed. In 1220 one Elias Piggun was convicted of being a hired champion, and lost his foot—consideratum est quod amittat pedem.1 What was thus forbidden seems, however, to have been much practised, and finally, in 1275, the struggle to prevent it came to an end by abandoning any requirement that the champion be a witness. The St. West. I., c. 41, reads: “Since it seldom happens that the demandant’s champion is not forsworn in making oath that he or his father saw the seisin of his lord or ancestor and his father commanded him to deraign, it is provided that the demandant’s champion be not bound to swear this; but be the oath kept in all other points.”
The Year Books indicate small use of the trial by battle in later days. One sign is the particularity with which the ceremonial is described, as if it were a curiosity. Thus in 1342-3, and again in 1407,2 in criminal appeals, the formalities of the battle oath and subsequent matters are fully given. And in 14223 the ceremony in a battle between champions is described with curious details, down to the defaulting of the tenant on the appointed day. In 1565 Sir Thomas Smith4 tells us, of this mode of trial, that it was not much used, but “I could not learn that it was ever abrogated.” This was only six years before the famous writ of right, in Lowe v. Paramour,5 which furbished up this faded learning. Dyer has a pretty full and good account of that case; but Spelman’s Latin6 is fuller and very quaint. The trial in a writ of right, he tells us, repeating with precision the doctrine of four centuries and a half before, is by duel or the assize; utrunque genus hodie insuetum est sed duelli magis.1 Yet, he goes on, it chanced that this last was revived in 1571, and battle was ordered, non sine magna jurisconsultorum perturbatione. Then comes a curious detailed account, setting forth, among other things, how Nailer, the demandant’s champion, in his battle array, to the sound of fifes and trumpets, on the morning of the day fixed for the battle, Londinum minaciter spatiatur. It has been said that Spelman was present at Tothill Fields on that day with the thousands of spectators that assembled; he does not say so, I believe, but he writes with all the vivacity of an eye-witness. The demandant made default. Another like case occurred as late as 1638, but again there was no fight.2 Efforts to abolish the judicial battle were made through that century and the next, but without result. At last came the famous appeal of murder in 1819,3 in which the learning of the subject was fully discussed by the King’s Bench, and battle was adjudged to be still “the constitutional mode of trial” in this sort of case. As in an Irish case in 1815,4 so here, to the amazement of mankind, the defendant escaped by means of this rusty weapon. And now, at last, in June, 1819, came the abolition of a long-lived relic of barbarism, which had survived in England when all the rest of Christendom had abandoned it.5
As to the grand assize, also,—that venerable early form of the jury which Henry II. established, with its cumbrous pomp of choosing for jurymen knights “girt with swords,”1 —it is convenient to notice, at this point, that it went out at the end of 1834, with the abolition of real actions.2
We have now traced the decay of these great mediæval modes of trial in England. What, meantime, had been happening to the jury?
[1 ]This essay forms chapter I of “A Preliminary Treatise on Evidence, 1898, pp. 7-46 (Boston, Little, Brown, & Co.).
[2 ]1831-1902. Harvard University, A. B. 1852, LL. B. 1856, LL. D. 1894; Iowa University, LL. D. 1891; admitted to the Boston (Suffolk Co.) Bar in 1856; master in chancery 1864-1873; Royall professor of law in Harvard University, 1873-1893, Weld professor of law in the same, 1893-1902.
[1 ]Maine, Early Law and Custom, c. 6; Pop. Gov., pp. 89-92; Essays in Anglo-Saxon Law, 2-3.
[1 ]So often in our older records. This rigor survives now chiefly in the fading rules of criminal pleading. It is interesting in the great Statute of Wales, 12 Edw. I. (1284), to see the contact of our old law with the customs of a region still less advanced. In certain pleas (s. 8), the demand is to be set forth in words stating the fact, without any exception for mistake in words, non observata illa dura consuetudine, Qui cadit a syllaba, cadit a tota causa.
[2 ]Brunner, Die Entstehung der Schwurgerichte, 174; Von Bar. Beweisurtheil, passim. As regards the German books I am greatly indebted to my friend and cousin, Gamaliel Bradford, of Boston. With lavish generosity he read to me the whole of the two books just cited and several others.
[1 ]The reasons which still make it so difficult to refer international controversies to the rational mode of trial may help us to understand our older law.
[2 ]See Brunner, Schw. 428 et seq.; P. & M., Hist. Eng. Law, ii. 603 et seq.
[3 ]Brunner, Schw. 170 et seq., 175. Lea, Sup. and Force, 4th ed. 95-6.
[4 ]As to this term lex, see Thayer, Preliminary Treatise on Evidence, 199, 201.
[5 ]Brunner’s explanation of this passage is found in Schwurg., 199-200. “If a lord appears with a complaint-witness against his vassal, in his own court, the vassal must answer, although no witnesses are brought. . . . Sometimes this privilege was limited so that the lord had it but once a year. The privilege of the fisc [or, as we should say, the crown] in this respect was unlimited. If a royal officer appears as plaintiff in a complaint belonging to his chief, he need not produce any witness . . . Even if such a complaint only called for the oath of purgation from the defendant, yet for this there was need, not merely of a clear conscience, but compurgators, and the painful formalism of the oath might only too easily bring the swearer to grief. Article 38 in Magna Carta may have owed its origin to such considerations when it provided, ‘Nullus ballivus,’ ” etc. See also Brunner in Zeitschrift der Savigny-Stiftung (Germ. Abt.), ii. 214. Compare Glanv. ix., 1, and ib. Beames’s trans. 222 n. 1. Compare also Bracton, 410 (say ad 1258). Ad simplicem rocem querentis non habent judices necesse, nec pars de qua queritur, defendere se per legem. And Bract. N. B. ii. case 260 (1227): Et quia . . . predictus Rogerus nichil ostendit . . . nec sectam producit, nec cartam profert, nec aliquid aliud nisi simplicem vocem suam, &c. See also ib. case 425, and ib. iii. case 1565.
[1 ]See Thayer’s Cas. Evid. 726.
[1 ]Pleading (Tyler’s ed., from the 2d Lond. ed. of 1827), 370-2.
[2 ]Palgrave has a lively thirteenth century illustration of this in his fiction founded on fact, “The Merchant and the Friar,” 173; see also Palg. Eng. Com., ii. p. clxxxvii, pl. 21 (1221); s. c. Maitland, Pl. Crown for Gloucester, 92, pl. 394; ib. 45, pl. 174, and notes pp. 145, 150; Pike’s Hist. Crime, i. 52. It is an entire misapprehension to suppose, as Stephen does, Hist. Cr. Law, i. 259, that this is a trial. The very point of the matter is that trial is refused. Compare Ass. Clarend., s. 12 (1166), Ass. North., s. 3 (1176), 3 Br. N. B., case 1474 (1221), Stat. Wall. s. 14 (1284). This principle also covered cases that were not so plain; as in 1222 (Br. N. B. ii., case 194), in an action for detaining the plaintiff’s horse which he had sent by his man to Stamford market for sale, it is charged that the defendant had thrown the man from the horse in the market, imprisoned him five days, kept the horse so that afterwards he was seen in the Earl of Warenne’s harrow at Stamford, etc., et inde producit sectam (giving ten or eleven names). The defendant defends the taking and imprisonment and all, word for word, etc. “But because all the aforesaid witnesses testify that they saw the horse in the seisin of Richard and in the harrow of the Earl, and this was done at Stamford market,” the defendant had his day for judgment. The author of the note-book has a memorandum on the margin at this case: Nota quod ea que manifesta sunt non indigent probacione.
[1 ]St. 15 & 16 Vic., c. 76, s. 55.
[2 ]Maitland, Pl. Cr. i., case 87.
[3 ]This was good old Germanic usage. Brunner, Schw. 201. Compare LL. H. I., xciv, 5 (Thorpe, i. 608).
[4 ]Bracton’s Note Book, iii., case 1693.
[5 ]Bracton’s Note Book, ii., case 325.
[6 ]As to the meaning of this phrase, see P. & M. Hist. Eng. Law, ii., 598, n. 4. De Gruchy, Anc. Cout. de Norm., 192, n. 6. The common meaning in England appears to have been that of the Statute of Wales (in 1284), cum undecim secum jurantibus,—in Coke’s phrase “an eleven and himself.” 2 Inst. 45. And in 1454-5 Needham, Serieant, says (Y. B. 33 H. VI. 8): “The tenant shall bring his law de duodecima manu, that is to say, eleven and himself.” Compare King v. Williams, 2 B. & C. 538 (1824); s. c. 4 D. & R. 3, Thaver, Preliminary Treatise on Evidence, p. 33; also Laws of Canute, c. 66, Lea, Sup. & Force (4th ed.), 48.
[1 ]Y. B. Ed. II. 507.
[2 ]Maitland, “Mirror,” p. xxiv.
[3 ]Ib. 162, 71. Compare P. & M. Hist. Eng. Law, ii., 213.
[4 ]Y. B. Ed. II. 242.
[5 ]Ib. 582.
[6 ]2 Rot. Cur. Reg. 102.
[7 ]Y. B. 17 Ed. III. 48, 14.
[1 ]Whether Shardelowe or Shareshull, both judges of the Common Bench at this time, I do not know. Selden seems to have misconceived this matter when he said (Note 8, Fortescue de Laud., c. xxi), after citing a case of trial by witnesses, in 1234 (Thayer, Preliminary Treatise on Evidence, 21), printed for the first time in Maitland’s invaluable “Bracton’s Note Book”: “The proofs of both sides are called secta. It was either this or some like case that Shard[elowe] entended in 17 Ed. III., fol. 48 b, in John Warrein’s case—speaking of a justice that examined the suit. And it appears [he adds truly] there, that under Ed. III., the tendering of suit or proofs was become only formal as at this day, like the plegii de prosequendo.”
[2 ]For certain other modes of “trial” see Stephen, Pl. (Tyler’s ed.), 114, 129, and 3 Blackstone, Com. 329.
[1 ]Brunner, Schw. 54-59, 84 et seq., 195 et seq., Big. Pl. A. N. xx., Stat. Wall. § 14, Lyon, Hist. Dover., ii. 292, 294.
[2 ]As to dower, see Brunner, Schw. 342-344, 432-434; Pl. Ab. 21, col. 2 (1198).
[3 ]Si quis cum altero de qualibet causa contentionem habuerit, et testes contra eum per judicium producti fuerint, si ille falsos eos esse suspicatur, liceat ei alios testes, quos meliores potuerit, contra eos opponere, ut veracium testimonio falsorum testium perversitas superetur. Quod si ambæ partes testium ita inter se dissenserint, ut nulla tenus una pars alteri cedere velit, eligantur duo ex ipsis, id est, ex ultraque parte unus, qui cum scutis et fustibus in campo decertent utra pars falsitatem, utra veritatem suo testimonio sequatur. Et campioni qui victus fuerit, propter perjurium quod ante pugnam commisit, dextera manus amputetur. Cæteri vero ejusdem partis testes, quia falsi apparuerint, manus suas redimant; cujus compositionis duæ partes ei contra quem testati sunt dentur, tertia pro fredo solvatur.—(Capitulare Primum Ludovici Pii, ad 819. Baluze, Capitularia Regum Francorum, I. 601.) Compare Henry II. of England in 1186, when charters were produced on both sides: “Iste carte ejusdem antiquitatis sunt et ab eodem rege Aedwardo emanant. Nescio quid dicam: nisi ut carte ad invicem pugnent!” Big. Pl. A. N. 239, citing Chron. Joc. de Brakel. 37 (Camden Soc.).
[1 ]Mun. Gild. Lond. i. 62.
[2 ]But in 1 St. Realm, 222, it is put as “temp. incert.”
[3 ]Brunner, Schw. 189.
[4 ]Schw. 205.
[1 ]Bracton’s Note Book, ii., case 46; cited in Bracton, f. 424 b.
[2 ]See also ib. iii., case 1131 (ad 1234), and case 1362 (in 1220).
[3 ]Thayer, Preliminary Treatise on Evidence, 102, 103.
[4 ]Bellewe, 237.
[1 ]Keilwey, 176-7.
[2 ]pp. cxlix-cliii. Camden Soc. (1846).
[3 ]Pl. Ab. 293, col. 1.
[4 ]Baigent, Crondal Records, 431-436.
[1 ]Y. B. 21 H. VII. 40, 58. Brooke’s Ab. Trial, 60. In 1375-6 (Y. B. 50 Edw. III. 6, 12), Cavendish, Chief Justice of the King’s Bench, being asked to view a woman, and determine her age or nonage, declined, with the prompt remark: “There is not a man in England who can rightly adjudge her of age or under age. Some women who are thirty years old will seem eighteen.”
[2 ]Thayer, Preliminary Treatise on Evidence, 17.
[3 ]Bracton’s Note Book, iii., case 1115.
[1 ]For the theory of such cases see Brunner, Schw. 431. See also, Thaver, Preliminary Treatise on Evidence, p. 15, n. 7.
[2 ]Selden, Fortescue de Laud., c. 21, n. 8. For early cases, see Wm. Salt Soc. Coll. (Staffordshire), iii. 120-121 (1203), and Br. N. B. ii. case 356 (1229).
[1 ]Y. B. Edw. II. 24.
[2 ]Trial, 46.
[3 ]Dyer, 185 a, pl. 65, quotes this case as showing four witnesses for the woman and twelve for the tenant.
[4 ]Lib. Ass 273, 26; Brooke, Ab., Trial, 90, makes the phrase read cesty qui nient provera nient avera.
[5 ]Dyer, 185 a, (ed. 1601); s. c. Old Benloe, 86. Compare Rastall’s Entries (ed. 1579), Dower, Barre, 1, for another case in 1559.
[1 ]Compare Pl. Ab. 287, col. 1-2 (1292, 20 Edw. I.).
[2 ]Case of the Abbot of Strata Mercella, 9 Co. 30 b.
[3 ]Digest, Trial, (B). For a specimen of what might be called trial by witnesses, see St. 5 & 6 Edw. VI. c. 4, s. 3 (1552).
[4 ]Com. iii., c. 22.
[5 ]Pleading, Tyler’s ed. (from the 2d Eng. ed., 1827), 114, 131.
[6 ]Maine, Early Law and Custom, 144.
[7 ]Hessels & Kern col. 208, xxxvii; and see ib. Extravagantia, B, p. 421; Lea, Sup. and Force, 4th ed. 34, 42.
[1 ]Lea, Sup. and Force, 4th ed. Mr. Lea’s excellent book is full of instruction. Lewis, Anc. Laws of Wales, 30, 112.
[2 ]Palgrave, Eng. Com. i. 262-3. Glanv. viii, 9, Bigelow, Pl. A. N. xviii. For its extensive use in the manor courts, see Selden Soc. Publications, vols. ii. and iv. The highly formal character which it sometimes took on, and the perils which attended it, are illustrated in a passage from an unpublished treatise of the fourteenth century, preserved by Professor Maitland in ib. vol. iv. p. 17. All comes to naught if the principal withdraws his hand from the book while swearing, “or does not say the words in full as they are charged against him. . . . If a defendant fails to make his law he has to pay whatever the plaintiff has thought fit to demand.” We are told (Lea, Sup. and Force, 4th ed. 78) that in the city of Lille, down to the year 1351, the position of every finger was determined by law, and the slightest error lost the suit irrevocably.
[3 ]Black Book of the Admiralty, ii. 170-173.
[4 ]Pike, Hist. Crime, i. 130: “The mode of trial was to be what it had been before the Conquest, with the difference that compurgation was no longer permitted in those cases which were of sufficient importance to be brought before the justices in eyre.” See Stubbs, Select Charters (6th ed.) 142 Palg. Com. i. 259, Pike, Hist. Crime, i. 122, 123.
[1 ]Compare Palgrave, Merchant and Friar, 182-3. As to this “trial” in the ecclesiastical courts, see Pollock and Maitland. Hist. Eng. Law, i. 426. Compare Dr. Hooke’s case, Gardiner, Star Chamber and High Commission Cases (Camd. Soc.), 276.
[2 ]Com. ii., p. cxvi, note; compare ib. i. 217.
[3 ]Sometimes it was the rule that twelve of the thirty-six produced by the accused were set aside on the king’s behalf, and twelve by the town, and that only the remaining twelve swore with the accused. See the custumals of Winchelsea, Dover, Romney, Rye, and Sandwich in John Lyon’s History of Dover, ii. 265. I am indebted to my colleague Dr. Charles Gross for this reference.
[4 ]Norton’s London, 324, note. Palgrave, Merchant and Friar, 180.
[1 ]Of Henry II., Richard, John, Henry III., the three Edwards, and Richard II. For the charters, see Liber Albus, Mun. Gild. Lond. i. 128 et seq.
[2 ]Lib. Alb., Mun. Gild. Lond. i. 137-8; ib. Riley’s ed., 123, note.
[3 ]Liber Albus, Mun. Gild. Lond. i., 57-59, 92, 104, 203; Thayer, Preliminary Treatise on Evidence, 199.
[4 ]A good Anglo-Saxon method. Fleta, Lib. 2, c. 63, s. 12, gives the merchants’ way of proving a tally by his own oath in nine churches. He was to swear to the same thing in each, and then return to Guildhall for judgment. As to the tally, see Y. B. 20 & 21 Edw. I. 68, 304, 330, Y. B. Edw. II. 278, Black Bk. Adm. ii. 126.
[5 ]Maitl. Pl. Cr. i., case 61; s. c. Palg. Com. ii., p. cxix, note. And so elsewhere abundantly in the earliest records; e. g. in 1198-9, Rot. Cur. Reg. i. 200. And see Glanvill, Bk. 1, cc. 9 and 16 (1187), Braction, 410.
[6 ]St. 6 Rich. II. c. 5.
[1 ]See Pl. Ab. 291, col. 1 (1293-4).
[2 ]Steph. Pl. (Tyler’s ed.) 131-2.
[3 ]It was allowed sometimes where it seemed desirable to relieve a party against a burdensome or unfair claim; e. g. in 1363, against the claim of Londoners that another was indebted to them, when they had taken no tally or deed, and offered to prove it merely par lour papirs. So in 1403 (St. 5 H. IV. c. 8) it is protected against contrivances for depriving one’s adversary of it, and driving him to an inquest of unfriendly neighbors. Jenkins, Rep. ix, among “Abuses of the Law,” numbers “the taking away wager of law upon contracts.”
[4 ]Y. B. 19 H. VI. 10, 25.
[5 ]Y. B. 33 H. VI. 7, 23.
[1 ]For the established rule in such cases see 2 Rot. Cur. Reg. 125 (1198), Bracton, 334 b., 366, Y. B. 30 & 31 Edw. I. 189 (1302), Y. B. 15 Edw. III. 299 (1341).
[2 ]Cal. Proc. in Chanc. i. ccxx-cxxii; cited in Spence Eq. Jur. i. 696.
[3 ]Ubi supra.
[4 ]Goldsborough, 51, pl. 13; Doctor and Student, ii. c. 24, end.
[1 ]4 Rep., p. 95.
[2 ]Anon., 2 Salk. 682.
[3 ]“The defendant was set at the right corner of the bar, without the bar, and the secondary asked him if he was ready to wage his law. He answered yes; then he laid his hand upon the book, and then the plaintiff was called; and a question thereupon arose whether the plaintiff was demandable? And a diversity taken where he perfects his law instanter, and where a day is given in the same term, and when in another term. As to the last, they held he was demandable, whether the day given was in the same term or another. Then the court admonished him, and also his compurgators, which they regarded not so much as to desist from it; accordingly, the defendant was sworn, that he owed not the money modo et forma, as the plaintiff had declared, nor any penny thereof. Then his compurgators standing behind him, were called over, and each held up his right hand, and then laid their hands upon the book and swore, that they believed what the defendant swore was true.”
[4 ]London v. Wood, 12 Mod. 669, 684.
[1 ]London v. Wood, 12 Mod. 669.
[2 ]Ib. p. 669-70.
[3 ]Ib. p. 677.
[4 ]Ib. p. 679. Perhaps this came from Coke, who shows little knowledge of the history of the matter. In Inst. ii. 45 (printed about 1642, several years after Coke’s death), he says:—“The reason wherefore in an action of debt upon a simple contract, the defendant may wage his law is for that the defendant may satisfy the party in secret, or before witness, and all the witnesses may die; . . . and this for aught I could ever read is peculiar to the law of England.”
[1 ]Com. iii. 347-8. This clause had already been found in English statutes for three centuries and more; it appeared also on this side of the water, in our colonial acts, even in regions like Massachusetts, where it is said that wager of law was not practised. Dane’s Ab. i., c. 29, art. 8. In Childress v. Emory, 8 Wheat. 642, 675 (1823), Story, J., is of opinion that “the wager of law, if it ever had a legal existence in the United States, is now completely abolished.” “Trial by oath,” however, was not unknown here. See Thayer, Preliminary Treatise on Evidence, p. 16, n. 1. See also the effect of the defendant’s oath as neutralizing the plaintiff’s shop-books in Plym. Col. Laws, 196 (1682). By a statute of Massachusetts (St. 1783, c. 55) on a charge of usury a like purgation was given, at a time when a party to the suit could not be a witness. When, later, he was admitted, in such cases, to testify, we find Shaw, C. J., in Little v. Rogers, 1 Met. 108, 110 (1840), describing the situation as one where “the trial by jury has been substituted for the old trial by oath.” Compare Fry v. Barker, 2 Pick. 65. Lea, Sup. and Force, 4th ed. 87-88 quotes cases from the English colony of Bermuda in 1638 and 1639, where, at the assizes, persons “presented upon suspicion of incontinency,” are sentenced to punishment unless they purge themselves by oath.
[2 ]Barry v. Robinson, 1 B. & P. (N. R.), p. 297: “If a man,” argued counsel, “were now to tender his wager of law, the court would refuse to allow it.” . . . “This was denied by the court,” adds the reporter.
[3 ]King v. Williams, 2 B. & C. 538; s. c. 4 D. & R. 3.
[4 ]St. 3 & 4 Wm. IV. c. 42, s. 13.
[5 ]Com. i. 262-3.
[1 ]Patetta, Ordalie, c. 1. See Inst. of Narada, Jolly’s Trans. 44-54. This book is attributed to some period between the second and ninth centuries before Christ; “but the materials of our work,” says the translator (p. xx), “are of course much older, and many of the laws it contains belong to the remotest antiquity.” Beginning at Part I. c. 5, s. 102, and ending at Part II. (pp. 44-54), we have the doctrine of ordeals. After speaking of the situation where there are neither writings nor witnesses, and of the examination of the defendant, it is said that “If reasonable inference also leads to no result,” the defendant is to be put to the ordeal. “He whom the blazing fire burns not, whom the water soon forces not up, or who meets with no speedy misfortune must be held veracious in his testimony on oath. Let ordeals be administered if an offence has been committed in a solitary forest, at night, in the interior of a house, and in cases of violence and of denial of a deposit. . . . The balance, fire, water, poison, and sacred libation are said to be the five divine tests for the purgation of suspected persons.” Then follows an account of each of these ordeals. 1. After describing the scales and the first weighing of the accused, it is said: “And having adjured the balance by imprecations, the judge should cause the person accused to be placed in the balance again. ‘O balance, thou only knowest what mortals do not comprehend. This man being arraigned in a cause is weighed upon thee. Therefore mayest thou deliver him lawfully from his perplexity.’ . . . Should the individual increase in weight, he is not innocent; if he be equal in weight or lighter, his innocence is established.” 2. In the ordeal of fire seven circles with a diameter equal to the length of the man’s foot, and thirty-two inches distant from each other, are marked on the ground. The circles are smeared with cows’ dung, and the man, having fasted and made himself clean, has seven açvattha leaves laid on his hands and fastened there, and takes in his hands a smooth ball of red-hot iron, weighing fifty palas, and walks slowly through the seven circles. He then puts the ball on the ground. “If he is burnt, his guilt is proved; but if he remains wholly unburnt, he is undoubtedly innocent. . . . ‘Thou, O fire, dwellest in the interior of all creatures, like a witness. Thou only knowest what mortals do not comprehend. This man is arraigned in a cause and desires acquittal. Therefore mayest thou deliver him lawfully from his perplexity.’ ” 3. In the ordeal of water, the man wades out into the water up to his navel, and another shoots an arrow. The man dives or ducks into the water, and if he remains wholly under while a swift runner gets and fetches back the arrow he is innocent. The adjuration to the water is similar to the above, in the case of fire and the balance. 4. In the ordeal by poison elaborate directions are given about the choice of the poison and the time of year for administering it. The invocation runs: “Thou, O poison, art the son of Brahma, thou art persistent in truth and justice; relieve this man from sin, and by thy virtue become as ambrosia to him. On account of thy venomous and dangerous nature thou art the destruction of all living creatures; thou art destined to show the difference between right and wrong like a witness,” etc., etc., much as in the other cases above. “If the poison is digested easily, without violent symptoms, the king shall recognize him as innocent, and dismiss him, after having honored him with presents.” 5. In the ordeal by sacred libation, “the judge should give the accused water in which an image of that deity to whom he is devoted has been bathed, thrice calling out the charge with composure. One to whom any calamity or misfortune happens within a week or a fortnight is proved to be guilty.” Sir Henry Maine, writing in 1880 (Life and Speeches, 426), after saying that “perjury and corruption are still deplorably common in India,” adds: “Ordeals are perpetually resorted to in private life.”
[1 ]Book xiv., c. i. See also cases from Domesday Book and other eleventh century sources in Bigelow, Pl. A. N. passim.
[2 ]And so the Dialogus de Scaccario, ii. 7, written ten years earlier; Pollock and Maitland, Hist. Eng. Law, i. 154, n. 7.
[1 ]Rot. Cur. Reg. i. 204. See several cases of uncertain date in the reign of Rich. I. in Pl. Ab. 13-17.
[2 ]Sacros. Conc. xiii. ch. 18, pp. 954-5. Rymer’s Foedera (old ed.), 228, ib. (Rec. Com. ed.) 154, has one of these writs. Maitland quotes it in his Gloucester Pleas, p. xxxviii. How promptly it was obeyed by the ecclesiastics in the local courts is seen in a case of 1231 (2 Br. N. B. case 592), where on a writ of false judgment to the court of the Abbot of St. Edmunds in an appeal of felony for wounds it appeared that the case had been tried by jury, without the king’s warrant. The Abbot’s steward being asked quo warranto faciunt talem inquisitionem de vita et membris, said that since the war [1215-1217], this had been usual in the Abbot’s court. Before the war, it is added, they had the ordeal of fire and water.
[1 ]Plac. Ab. 90, col. 2. One of these cases and another separate one are found in Maitland. Sel. Pl. Cr. i., case 116. In this volume there follow three others, 119, 122, and 125, “of uncertain date.”
[2 ]Eadmer, Hist. Nov. (Rolls Series), 102, Pollock and Maitland, Hist. Eng. Law, ii. 597, Brunner, Schw. 182. Compare the cool sense of Frederic II. in 1231, Lea, Sup. and Force, 4th ed. 422.
[1 ]Maitland, “Mirror,” 173 (Book 5, c. i. s. 127).
[2 ]Whitebread’s case, 7 How. St. Tr. 383; cited by Stephen, 1 Hist. C. Law, 253 n.
[3 ]Com. ii. 177.
[4 ]Sel. Charters, 6th ed. 142.
[5 ]Gardiner’s Star Ch. and High Com. Cases, 259.
[6 ]Pollock and Maitland, Hist. Eng. Law, i. 16.
[1 ]Lib. 10, c. 17.
[2 ]Lib. 13, c. 11.
[3 ]Lib. 9, c. 1.
[4 ]Lib. 8, c. 9. See generally St. de Magn. Ass. et Duellis, St. Realm, i. 218.
[5 ]Mun. Gild. Lond. i. 128, s. 5, and Thorpe, i. 502—quod nullus eorum faciat bellum. Pl. Ab. 26, col. 2, Lincoln; Pike, Hist. Crim. Law, i. 448; Patetta, Ordalie, 307, 308.
[6 ]Essays in Anglo-Saxon Law, 379; s. c. Bigelow, Pl. A. N. 19; Brunner, Schw. 197, 400-1.
[7 ]Lea, Sup. and Force, 4th ed. 120.
[8 ]Schw. 197-8; ib. 68, 401, citing Glanvill, lib. 10, c. 12; lib. 2, c. 21.
[9 ]Thayer, Preliminary Treatise on Evidence, p. 17 n.
[1 ]See e. g. the recitals in the St. of Vouchers (20 Edw. I. st. 1) of 1292. So also we are told that “Saint Louis abolished battle in his country because it happened often that when there was a contention between a poor man and a rich man, in which trial by battle was necessary, the rich man paid so much that all the champions were on his side, and the poor man could find none to help him.” Grandes Chroniques de France, vol. 4, p. 427, 430, al. 3, cited in Brunner, Schw. 295, note.
[2 ]Schw. 300-304. Compare Bigelow, Pl. A. N. xxvii n.
[3 ]Glanvill, lib. 2, c. 7. This well-known passage runs in substance thus: The Grand Assize is a royal favor, granted to the people by the goodness of the king, with the advice of the nobles. It so well cares for the life and condition of men that every one may keep his rightful freehold and yet avoid the doubtful chance of the duel, and escape that last penalty, an unexpected and untimely death, or, at least, the shame of enduring infamy in uttering the hateful and shameful word [“Craven”] which comes from the mouth of the conquered party with so much disgrace, as the consequence of his defeat. This institution springs from the greatest equity. Justice, which, after delays many and long, is scarcely ever found in the duel, is more easily and quickly reached by this proceeding. The assize does not allow so many essoins as the duel; thus labor is saved and the expenses of the poor reduced. Moreover, by as much as the testimony of several credible witnesses outweighs in courts that of a single one, by so much is this process more equitable than the duel. For while the duel goes upon the testimony of one sworn person, this institution requires the oaths of at least twelve lawful men.
[1 ]Duello, cc. 8 and 13.
[2 ]If the lawyers knew how much they could promote the cause of legal learning, and thereby improve our law, by becoming members of this excellent society (it costs a guinea a year), they would not neglect the opportunity. The American Secretary and Treasurer is Mr. Richard W. Hale, of No. 10, Tremont St., Boston.
[3 ]pp. 41, 42, 43, 61, 305.
[4 ]Duello, c. 13.
[5 ]Glanvill, lib. 2, c. 3, sets forth that in this class of cases the plaintiff cannot be his own champion, for he must have a good witness, who shall speak of his own knowledge or that of his father. So in the recognition, substituted for the battle, the jurymen—the twelve witnesses of Glanvill’s eulogy, so much better than the one battle-witness—are to speak of their own personal knowledge, or by the report of their fathers, et per talia quibus fidem teneantur habere ut propriis. Ib. lib. 2, c. 17. Compare Brunner, Schw. 180.
[1 ]Maitland, Sel. Pl. Cr. i. 192; s. c. Bracton, 151 b.
[2 ]Y. B. 17 Edw. III. 2, 6; s. c. Lib. Ass. 48, 1; Y. B. 9 H. IV. 3, 16.
[3 ]Y. B. 1 H. VI. 6, 29.
[4 ]Com. England, bk. ii. c. 8.
[5 ]Dyer, 301.
[6 ]Glossary, sub voc. Campus (ad 1625).
[1 ]How rusty the lawyers were in 1554, as regards the Grand Assize, is shown in Lord Windsor v. St. John, Dyer, 98 and 103 b.
[2 ]Cro. Car. 522; Rushworth’s Coll. ii. 788. Milton, a contemporary of this case, has gravely entered in his Common Place Book, the following, having reference to a case of the last preceding century: “De Duellis: Not certain in deciding the truth, as appears by the combat fought between 2 Scots before the L. Grey of Wilton in the market place of Haddington, wherein Hamilton, that was almost if not cleerly known to be innocent, was vanquish’t and slain, and Newton the offender remained victor and was rewarded by the Ld. Grey. Holinsh. p. 993.”
[3 ]Ashford v. Thornton, 1 B. & Ald. 405.
[4 ]Neilson, Trial by Combat, 330.
[5 ]Stat. 59 Geo. III. c. 46,—reciting that “appeals of murder, treason, felony, and other offences, and the manner of proceeding therein, have been found to be oppressive; and the trial by battle in any suit is a mode of trial unfit to be used; and it is expedient that the same should be wholly abolished.” The statute went on to enact that all such appeals “shall cease, determine, and become void and . . . utterly abolished, [and that] in any writ of right now depending or hereafter to be brought, the tenant shall not be received to wage battle, nor shall issue be joined or trial be had by battle in any writ of right.”
[1 ]“The writs of parliament are,” said Coke, nearly three centuries ago (2 Inst. 597), “to return two knights for every county gladiis cinctos, not that they should come to the parliament girt with swords, but that they should be able to do knight’s service.” But the courts always kept up the real thing. The ceremony of choosing the knights is described in 1406 (Y. B. 7 H. IV. 20, 28) thus: “The four knights were called, who came to the bar girt with swords [“girt with swords above their garments,” says Dyer in Lord Windsor v. St. John, Dyer, 103 b. ad 1554] and were charged . . . to choose twelve knights girt with swords from themselves and others, . . . and the justices ordered the parties to go with the knights into a chamber to choose and to declare their challenges of the others chosen by the four, for after the return of the panel so made by the four knights the parties shall have no challenge to panel or polls before the justices.”
[2 ]Except as a belated case or two of a writ of right may have remained over for trial at a later date. The latest case appears to have been that of Davies v. Lowndes, reported as of April, 1835, in 1 Bing. N. C. 597, and, at a second trial, as of November and December, 1838, in 5 ib. 161 (Forsyth, Tr. by Jury, 139).