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fent; or, in fine, because of the natural imbecility and imperfection that attends all human proceedings. But whereever this happens to be the case in any material point, the legislature is ready, and from time to time both may, and frequently does, intervene to remove the doubt; and, upon due deliberation had, determines by a declaratory statute how the law shall be held for the future.
WHATEVER instances therefore of contradiction or uncertainty may have been gleaned from our records, or reports, must be imputed to the defects of human laws in general, and are not owing to any particular ill construction of the English system. Indeed the reverse is most strictly true. The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the fame extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not like our books of reports, judicial determinations of the court) are all of authority fufficient to be vouched and relied on: which must needs breed great dis* traction and confusion in their tribunals. The same may be faid of the canon law; though the text thereof is not of half the antiquity with the common law of England; and though • the more antient any system of laws is, the more it is liable to be perplexed with the multitude of judicial decrees. When therefore a body of laws of so high antiquity as the English, is in general fo clear and perfpicuous, it argues deep wisdom and foresight in fuch as laid the foundations, and great care and circumspection in such as have built the superstructure.
But is not (it will be asked) the multitude of law-fuits, which we daily see and experience, an argument against the clearness and certainty of the law itself? By no means : for among the various disputes and controversies which are daily to be met with in the course of legal proceedings, it is obvious to observe how very few arise from obscurity in the rules or maxims of law. An action shall seldom be heard of, to determine a question of inheritance, unless the fact of the descent be controverted. But the dubious points, which are usually agitated in our courts, arise chiefly from the difficulty there is of ascertaining the intentions of individuals, in their solemn dispositions of property ; in their contracts, conveyances, and teftaments. It is an object indeed of the utmost importance in this free and commercial country, to lay as few restraints as possible upon the transfer of pofseflions from hand to hand, or their various designations marked out by the prudence, convenience, necessities, or even by the caprice, of their owners: yet to investigate the intention of the owner is frequently matter of difficulty, among heaps of entangled conveyances or wills of a various obscurity. The law rarely hesitates in declaring it's own meaning ; but the judges are frequently puzzled to find out the meaning of others. Thus the powers, the interest, the privileges, and properties of a tenant for life, and a tenant in tail, are clearly distinguished and precisely settled by law: but, what words in a will shall constitute this or that estate, has occasionally been disputed for more than two centuries past; and will continue to be disputed as long as the carelessness, the ignorance, or singularity of testators shall continue to cluath their intentions in dark or new-fangled expressions.
But, notwithstanding so vast an accession of legal controversies, arising from so fertile a fund as the ignorance and wilfulness of individuals, these will bear no comparison in point of number to those which are founded upon the dishonesty, and disingenuity of the parties: by either their suggesting complaints that are false in fact, and thereupon bringing groundless actions; or by their denying such facts as are true, in setting up unwarrantable defences, ex facto oritur jus : if therefore the fact be perverted or mis-represented, the law which arises from thence will unavoidably be unjust or partial.
And, And, in order to prevent this, it is necessary to set right the fact, and establith the truth contended for, by appealing to fome mode of probation or trial, which the law of the country has ordained for a criterion of truth and fallood.
These modes of probation or trial form in every civilized country the great object of jullicial decisions. And experience will abundantly shew, that above a hundred of our law. suits arise from disputed facts, for, one where the law is doubted of. About twenty days in the year are sufficient in Westminster-hail, to settle (upon folemn argument) every demurrer or other special point of law that arises throughout the nation : but two months are annually spent in deciding the truth of facts, before six distinct tribunals, in the several circuits of England; exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits.
Trial then is the examination of the matter of fact in issue ; of which there are many different species, according to the difference of the subject, or thing to be tried : of all which we will take a cursory view in this and the subsequent chapter. For the law of England ro industriously endeavours to investigate truth at any rate, that it will not confine itself to one, or to a few, manners of trial; but varies it's examination of facts according to the nature of the facts themselves: this being the one invariable principle pursued, that as well the best method of trial, as the best evidence upon that trial, which the nature of the case affords, and no other, shall be admitted in the English courts of justice,
The species of trials in civil cases are seven. By record; by inspection, or examination ; by certificate ; by witnesses ; by wager of battel; by wager of law; and by jury.
1. First then of the trial by record. This is only used in one particular instance: and that is where a matter of record
is pleaded in any action, as a fine, a judgment, or the like; and the opposite party pleads, “nul tiel record,” that there is no such matter of record existing: upon this, iffue is tendered and joined in the following form, “and this he prays may “ be inquired of by the record, and the other doth the like;" and hereupon the party pleading the record has a day given him to bring it in, and proclamation is made in court for him to “ bring forth the record by him in pleading alleged, or “ else he shall be condemed;" and, on his failure, his antagonist shall have judgment to recover. The trial therefore of this issue is merely by the record; for, as sit Edward Coke observes, a record or enrollment is a monument of so high a nature, and importeth in itself such absolute verity, that if it be pleaded that there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself. Thus titles of nobility, as whether earl or no earl, baron or no baron, shall be tried by the king's writ or patent only, which is matter of records. Also in case of an alien, whether alien friend or enemy, shall be tried by the league or treaty between his sovereign and ours; for every league or treaty is of record. And also, whether a manor be to be held in antient demesne, or not, shall be tried by the record of domesday in the king's exchequer. .
II. Trial by inspection, or examination, is when for the greater expedition of a cause, in fome point or issue being either the principal question, or arising collaterally out of it, but being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For, where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it ; who are properly called in to inform the conscience of the court in respect of dubious facts: and therefore when the fact, from it's nature, must be evident to the court either from ocular demonstration or other irrefragable proof, there the law departs 0Inst. 117. 260.
og Rep. 33. © 6 Rep. 53.
from it's usual resort, the verdict of twelve men, and relies on the judgment of the court alone. As in case of a suit to reverse a fine for non-age of the cognizor, or to set aside a statute or recognizance entered into by an infant; here, and in other cases of the like fort, a writ shall issue to the sheriffe ; commanding him that he constrain the said party to appear, that it may be ascertained by the view of his body by the king's justices, whether he be of full age or not; “ ut “ per afpeélum corporis fui conftare poterit justiciariis 1107ris, se “- praedictus A fit plenae aetatis necnef.” If however the court has, upon inspection, any doubt of the age of the party, (as may frequently be the case) it may proceed to take proofs of the fact; and, particularly, may examine the infant himself upon an oath of voir dire, veritatem dicere, that is, to make true answer to such questions as the court shall demand of him : or the court may examine his mother, his god. father, or the like.
In like manner if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges Mall determine by inspection and examination, whether he be the plaintiff or noth. Also if a man be found by a jury an idiot a nativitate, he may come in person into the chancery before the chancellor, or be brought there by his friends, to be infpected and examined, whether idiot or not: and, if upon such view and inquiry, it appears he is not so, the verdict of the jury, and all the proceedings thereon, are utterly void and instantly of no effect'.
ANOTHER instance in which the trial by inspection may be used, is when, upon an appeal of maihem, the issue joined is whether it be maihem or no maihem, this shall be decided by the court upon inspection, for which purpose they may e 9 Rep. 31.
though now it is tried by inspection. f This question of non-age was for. 8 2 Roll. Abr. 573 meily, according to Glanvil, (1. 13.6. ^9 Rep: 30. 15.) tried by a jury of eight men ; illid. 31.