call in the assistance of furgeons). And, by analogy to this, in an action of trefpafs for mailem, the court (upon view of fuch maihem as the plaintiff has laid in his declaration, or which is certified by the judges who tried the cause to be the fame as was given in evidence to the jury) may increase the damages at their own difcretion; as may alfo be the cafe upon view of an atrocious battery'. But then the battery must likewise be alleged fo certainly in the declaration, that it may appear to be the fame with the battery inspected.

ALSO, to ascertain any circumstances relative to a particu lar day paft, it hath been tried by an inspection of the almanac by the court. Thus, upon a writ of error from an inferior court, that of Lynn, the error affigned was that the judgment was given on a sunday, it appearing to be on 26 February, 26 Eliz. and upon inspection of the almanacs of that year it was found that the 26 of February in that year actually fell upon a funday: this was held to be a fufficient trial, and that a trial by a jury was not neceffary, although it was an error in fact; and so the judgment was reverfed. But, in all these cases, the judges, if they conceive a doubt, may order it to be tried by jury.

III. THE trial by certificate is allowed in fuch cafes, where the evidence of the perfon certifying is the only proper criterion of the point in difpute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the folemn averment or information of perfons in fuch a ftation, as affords them the most clear and competent knowlege of the truth. As therefore fuch evidence (if given to a jury) must have been conclufive, the law, to fave trouble and circuity, permits the fact to be determined upon fuch certificate merely. Thus, 1. If the iffue be whether A was abfent with the king in his army out of the realm in time of war, this shall be tried" by the certificate of the marefchall of

the king's hoft in writing under his feal, which shall be sent to the juftices. 2. If, in order to avoid an outlawry or the like, it was alleged that the defendant was in prifon, ultra mare, at Bourdeaux, or in the fervice of the mayor of Bourdeaux, this should have been tried by the certificate of the mayor; and the like of the captain of Calais. But when this was law, thofe towns were under the dominion of the crown of England. And therefore, by a parity of reason, it fhould now hold that in fimilar cafes, arifing at Jamaica or Minorca, the trial fhould be by certificate from the governor of thofe islands. We alfo find that the certificate of the queen's meffenger, fent to fummon home a peerefs of the realm, was formerly held a fufficient trial of the contempt in refusing to obey fuch fummons. 3. For matters within the realm, the customs of the city of London shall be tried by the certificate of the mayor and aldermen, certified by the mouth of their recorder'; upon a furmise from the party alleging it, that the custom ought to be thus tried: else it must be tried by the country. As, the cuftom of diftributing the effects of freemen deceased; of enrolling apprentices; or that he who is free of one trade may ufe another; if any of these or other fimilar points come in iffue. But this rule admits of an exception, where the corporation of London is party, or inte rested, in the fuit; as in an action brought for a penalty inflicted by the custom: for there the reason of the law will not endure fo partial a trial; but this custom fhall be determined by a jury, and not by the mayor and aldermen, certifying by the mouth of their recorder'. 4. In fome cafes, the fheriff of London's certificate fhall be the final trial: as if the iffue be, whether the defendant be a citizen of London or a foreigner, in cafe of privilege pleaded to be fued only in the city courts. Of a nature fomewhat fimilar to which is the trial of the privilege of the university, when the chancellor claims cognizance of the caufe, because one of the parties is a • Bro. Abr. t. trial. pl. 96.

9 Rep. 31.

P2 Roll. Abr. 583.

4 Dyer. 176, 177.

* Co. Litt. 74. 4 Burr. 248.

privileged perfon. In this cafe, the charters, confirmed by act of parliament, direct the trial of the question, whether a privileged perfon or no, to be determined by the certificate and notification of the chancellor under feal; to which it hath also been usual to add an affidavit of the fact: but if the parties be at issue between themselves, whether A is a member of the university or no, on a plea of privilege, the trial fhall be then by jury, and not by the chancellor's certificate": because the charters direct only that the privilege be allowed on the chancellor's certificate, when the claim of cognizance is made by him, and not where the defendant himself pleads his privilege fo that this must be left to the ordinary course of determination. 5. In matters of ecclefiaftical jurifdiction, as marriage, and of courfe general baftardy, and alfo excommunication, and orders, these, and other like matters, fhall be tried by the bishop's certificatew. As if it be pleaded in abatement, that the plaintiff is excommunicated, and iffue is joined thereon; or if a man claims an eftate by defcent, and the tenant alleges the demandant to be a bastard; or if on a writ of dower the heir pleads no marriage; or if the issue in a quare impedit be, whether or no the church be full by inftitution; all thefe, being matters of mere ecclefiaftical cogni. zance, fhall be tried by certificate from the ordinary. But in an action on the cafe for calling a man bastard, the defendant having pleaded in justification that the plaintiff was really fo, this was directed to be tried by a jury: because, whether the plaintiff be found either a general or special baftard, the justification will be good; and no question of special bastardy shall be tried by the bishop's certificate, but by a jury. For a special bastardy is one born before marriage, of parents who afterwards intermarry: which is baftardy by our law, though not by the ecclefiaftical. It would therefore be improper to refer the trial of that queftion to the bishop; who, whether the child be born before or after marriage, will be fure to return or certify him legitimate. Ability of a clerk [ 336 1

2 Roll. Abr. 583.

w Co. Litt. 74. 2 Lev. 253, * Hub. 179

y Dyer. 79.

z See introd. to the great charter. edit. Oxen. fub. anno 1233.

prefented

Book III. prefented, admiffion, inftitution, and deprivation of a clerk, fhall also be tried by certificate from the ordinary or metropolitan, because of these he is the moft competent judge: but induction shall be tried by a jury, because it is a matter of public notoriety, and is likewife the corporal investiture of the temporal profits. Refignation of a benefice may be tried in either way; but it seems most properly to fall within the bishop's cognizance. 6. The trial of all customs and practice of the courts shall be by certificate from the proper officers of those courts respectively; and, what return was made on a writ by the sheriff or under-fheriff, fhall be only tried by his own certificate. And thus much for those feveral iffues, or matters of fact, which are proper to be tried by certificate.

IV. A FOURTH fpecies of trial is that by witnesses, per teftes, without the intervention of a jury. This is the only method of trial known to the civil law; in which the judge is left to form in his own breast his sentence upon the credit of the witneffes examined: but it is very rarely used in our law, which prefers the trial by jury before it in almost every inftance. Save only, that when a widow brings a writ of dower, and the tenant pleads that the hufband is not dead; this, being looked upon as a dilatory plea, is, in favour of the widow and for greater expedition, allowed to be tried by wit→ neffes examined before the judges: and fo, faith Finchf, fhall no other cafe in our law. But fir Edward Coke mentions fome others: as to try whether the tenant in a real action was duly fummoned, or the validity of a challenge to a juror : fo that Finch's obfervation must be confined to the trial of direct, and not collateral, iffues. And in every cafe fir Ed ward Coke lays it down, that the affirmative must be proved by two witneffes at the least.

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V. THE next fpecies of trial is of great antiquity, but much difufed; though ftill in force if the parties chufe to

abide by it; I mean the trial by wager of battel. This seems to have owed it's original to the military spirit of our an cestors, joined to a fuperftitious frame of mind: it being in the nature of an appeal to providence, under an apprehenfion and hope (however presumptuous and unwarrantable) that heaven would give the victory to him who had the right. The decifion of fuits, by this appeal to the God of battels, is by fome faid to have been invented by the Burgundi, one of the northern or German clans that planted themselves in Gaul. And it is true, that the firft written injunction of judiciary combats that we meet with, is in the laws of Gundebald, A. D. 501, which are preserved in the Burgundian code. Yet it does not feem to have been merely a local cuftom of this or that particular tribe, but to have been the common ufage of all those warlike people from the earliest times. And it may also seem from a paffage in Velleius Paterculusj, that the Germans, when first they became known to the Romans, were wont to decide all contests of right by the fword: for when Quintilius Varus endeavoured to introduce among them the Roman laws and method of trial, it was looked upon (fays the hiftorian) as a "novitas incogni"tae difciplinae, ut folita armis decerni jure terminarentur.” And among the antient Goths in Sweden we find the practice of judiciary duels established upon much the same footing as they formerly were in our own country i.

THIS trial was introduced into England among other Norman customs by William the Conqueror; but was only used in three cafes, one military, one criminal, and the third civil. The first in the court-martial, or court of chivalry and honourk: the second in appeals of felony ', of which we shall speak in the next book: and the third upon issue joined in a writ of right, the last and most folemn decifion of real pro- [ 338 ] perty. For in writs of right the jus proprietatis, which is frequently a matter of difficulty, is in question; but other