[ 347 ] BOOK III. given voluntary credit to the defendant, there he may wage his law; for, by giving him such credit, the plaintiff has himfelf borne teftimony that he is one whofe character may be trufted. Upon this principle it is, that in an action of debt against a prisoner by a gaoler for his victuals, the defendant fhall not wage his law: for the gaoler cannot refuse the prifoner, and ought not to suffer him to perish for want of suste. nance. But otherwise it is for the board or diet of a man at liberty. In an action of debt brought by an attorney for his fees, the defendant cannot wage his law, because the plaintiff is compellable to be his attorney. And fo, if a servant be retained according to the statute of labourers, 5 Eliz. c. 4. which obliges all fingle perfons of a certain age, and not having other visible means of livelihood, to go out to service; in an action of debt for the wages of such a servant, the mas ter fhall not wage his law, because the plaintiff was compelIable to ferve. But it had been otherwife, had the hiring been by special contract, and not according to the statute ". In no cafe where a contempt, trefpafs, deceit, or any injury with force is alleged against the defendant, is he permitted to wage his law *: for it is impoffible to prefume he has fatisfied the plaintiff his demand in fuch cafes, where damages are uncertain and left to be affeffed by a jury. Nor will the law truft the defendant with an oath to discharge himself, where the private injury is coupled as it were with a public crime, that of force and violence; which would be equi, valent to the purgation oath of the civil law, which ours has fo justly rejected. EXECUTORS and administrators, when charged for the debt of the deceased, shall not be admitted to wage their law : for no man can with a fafe confcience wage law of another man's contract; that is, fwear that he never entered into it, or at least that he privately discharged it. The king also has his prerogative; for, as all wager of law imports a reflection on the plaintiff for dishonesty, therefore there fhall be no such Finch. L. 434 w Co. Litt. 295. * Ibid. Raym. 286. wager wager on actions brought by him2. And this prerogative extends and is communicated to his debtor and accomptant; for, on a writ of quo minus in the exchequer for a debt on fimple contract, the defendant is not allowed to wage his law1. THUS the wager of law was never permitted, but where the defendant bore a fair and unreproachable character; and it alfo was confined to fuch cafes where a debt might be fuppofed to be discharged, or fatisfaction made in private, without any witnesses to atteft it; and many other prudential reftrictions accompanied this indulgence. But at length it was confidered, that (even under all it's restrictions) it threw too great a temptation in the way of indigent or profligate men: and therefore by degrees new remedies were devifed, and new forms of action were introduced, wherein no defendant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardiness of his debtor's conscience, unless he voluntarily chufes to rely on his adversary's veracity, by bringing an obsolete, instead of a modern, action. Therefore one fhall hardly hear at prefent of an action of debt brought upon a fimple contract: that being supplied by an action of trefpafs on the cafe for the breach of a promise or affumpfit; wherein, though the specific debt cannot be recovered, yet damages may, equivalent to the specific debt. And, this being an action of trefpafs, no law can be waged therein. So, instead of an action of detinue to recover the very thing detained, an action of trefpafs on the cafe in trover and converfion is ufually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall [348] pay damages for the converfion, equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account, a bill in equity is usually filed: wherein, though the defendant answers upon his oath, yet fuch oath is not conclufive to the plaintiff; but he may prove every article by other evidence, in contradiction to what the defendant has fworn. So that wager of law is quite out * Co. Litt. 295. Z Finch. L. 425. of use, being avoided by the mode of bringing the action; but ftill it is not out of force. And therefore, when a new ftatute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, in which no wager of law fhall be allowed: otherwise an hardy delinquent might escape any penalty of the law, by fwearing he had never incurred, or elfe had discharged it. THESE fix fpecies of trials, that we have confidered in the prefent chapter, are only had in certain special and eccentrical cafes; where the trial by the country, per pais, or by jury, would not be fo proper or effectual. In the next chapter we fhall confider at large the nature of that principal criterion of truth in the law of England. CHAPTER THE TWENTY-THIRD. THE TRIAL BY JURY. OF THЕ THE HE fubject of our next inquiries will be the nature and method of the trial by jury; called alfo the trial per pais, or by the country: a trial that hath been used time out of mind in this nation, and feems to have been coëval with the first civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the firft inhabitants of our island; but certain it is, that they were in ufe among the earliest Saxon colonies, their inftitution being ascribed by bishop Nicholson 2 to Woden himself, their great legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feodal fyftem, as in Germany, France, and Italy; who had all of them a tribunal composed of twelve good men and true, "boni homines," usually the vafals or tenants of the lord, being the equals or peers of the parties litigant; and, as the lord's vafals judged each other in the lord's courts, fo the king's vafals, or the lords themfelves, judged each other in the king's court. In England we find actual mention of them fo early as the laws of king Ethelred, and that not as a new invention. Stiernhook ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was co-temporary with our king Egbert. Juft as we are apt to impute the invention of this, and fome de jure Saxonum, p. 12. ь Sp. L. b. 30. c. 18. Capital. Lud, pii. A. D. 819. c. 2. c Wilk. LL. Angl. Sax. 117. a de jure Suconum. 1. 1. c. 4. other other pieces of juridical polity, to the fuperior genius of Alfred the great; to whom, on account of his having done much, it is usual to attribute every thing: and as the tradition of antient Greece placed to the account of their own Hercules whatever atchievement was performed fuperior to the ordinary prowefs of mankind. Whereas the truth feems to be, that this tribunal was univerfally eftablished among all the northern nations, and fo interwoven in their very conflitution, that the earliest accounts of the one give us also fome traces of the other. Its establishment however and use, in this ifland, of what date foever it be, though for a timegreatly impaired and fhaken by the introduction of the Norman trial by battel, was always fo highly efteemed and valued by the people, that no conqueft, no change of government, could ever prevail to abolish it. In magna carta it is more than once infifted on as the principal bulkwark of our liberties; but especially by chap. 29. that no freeman shall be hurt in either his perfon or property; "nifi per legale judicium " parium fuorum vel per legem terrae." A privilege which is couched in almoft the fame words with that of the emperor Conrad, two hundred years before: "nemo beneficium fuum perdat, nifi fecundum confuetudinem antecessorum noftrorum et "per judicium parium fuorum." And it was ever esteemed, in all countries, a privilege of the highest and most beneficial nature. BUT I will not mifpend the reader's time in fruitless encomiums on this method of trial: but shall proceed to the diffection and examination of it in all it's parts, from whence indeed it's highest encomium will arife: fince, the more it is fearched into and understood, the more it is fure to be valued. And this is a fpecies of knowlege moft abfolutely neceffary for every gentleman in the kingdom: as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-fubjects; as because his own property, his liberty, and his life, depend upon maintaining, in it's legal force, the conftitutional trial by jury. * LL. Longob. 1. 3. t. 8. 1. 4. |