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tarily chooses to rely on his adversary's veracity, by bringing an obsolete, instead of a modern, action. Therefore one shall hardly hear at present of an action of debt brought upon a simple contract: that being supplied by an action of trespass on the case for the breach of a promise or assumpsit; wherein, though the specific debt cannot be recovered, yet damages may, equivalent to the specific debt. And, this being an action of trespass, no law can be waged therein. So, instead of an action of detinue to recover the very thing detained, an action of trespass on the case in trover [318] and conversion is usually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall pay damages for the conversion, equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account a bill in equity is usually filed: wherein, though the defendant answers upon his oath, yet such oath is not conclusive to the plaintiff; but he may prove every article by other evidence, in contradiction to what the defendant has sworn. So that wager of law is quite out of use, being avoided by the mode of bringing the action; but still it is not out of force. And therefore, when a new statute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, in which no wager of law shall be allowed otherwise an hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it.

These six species of trials, that we have considered in the present chapter, are only had in certain special and eccentrical cases; where the trial by the country, per pais, or by jury, would not be so proper or effectual. In the next chapter we shall consider at large the nature of that principal criterion of truth in the law of England.

NOTE OF THE AMERICAN EDITOR TO CHAPTER XXIL

(60) The species of trials in civil cases are seven, page 330.

Of these the only method recognized at this day, for issues of fact, is trial by jury: with trial by the court when a jury is waived, or trial by a referee, in certain cases involving the examination of a long account or the like. In most states, indeed, the jury is declared by statute, if not by the constitution, to be the right of every citizen upon an issue of fact.

Yet the others are not all so obsolete as they may seem. Wager of battel and wager of law, indeed, are so. Trial by witnesses remains much as it did in Blackstone's day, reserved for collateral issues, such as may arise upon motions and the like. (See text, p. 336.) Trial by inspection or examination is not unknown in the like cases, though never employed, as it was in Blackstone's time (text, p. 333), in the principal question. In one case, however, where a party seeks damages for bodily injuries, it is now held by some courts that he may be required to submit to personal examination, the result of which goes to the jury with other evidence in the case.

Trial by record and by certificate are less changed in substance than the rest. Many facts beside those mentioned by the commentator are conclusively proved by records, or by the certificate of the proper officer. True, this proof now goes to the jury with other evidence, instead of being addressed to and passed upon by the court; but with the instruction of the court as to the effect to be given such proof, the result is the same.

Indeed, the change since Blackstone's time is more in the use of the word "trial" than in any matter of substance. Blackstone speaks of the trial of the matter of fact in the issue, and never of the trial of the case as a whole, as we now commonly do. This fact being always single by the rules of pleading of his

time, its "trial" was in the original sense of the word its testing, or the means by which it was proved or conclusively established: while we commonly think of the trial of a case as involving the entire evidence in the case, pro and con, with the result drawn from all the facts proved in the course of it. And this change is the result of that which has come over jury trial from the time when the jurors had merely to verify the truth or falsity of a single averment as witnesses, to our own, when they are formally recognized as sitting in judgment on all the facts of the case and deciding between conflicting parties.

CHAPTER THE TWENTY-THIRD.

OF THE TRIAL BY JURY.

The subject of our next inquiries will be the nature and method of the trial by jury; called also the trial per pais, or by the country. A trial that hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof.* Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is, that they were in use among the earliest Saxon colonies, their institution being ascribed by bishop Nicholson & to Woden himself, their great legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feodal system, as in Germany, France, and Italy; † who had all of them a tribunal composed of twelve good men and true,† “boni homines," usually the vassals or tenants of the lord, being the equals or peers of the parties litigant: and, as the lord's vassals judged each other in the lord's courts, so the king's vassals, or the lords themselves, judged each other in the king's court. In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention. Stiernhook & ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was cotemporary with our king Egbert. Just as we are apt to impute the invention of this, and some [350] other pieces of a de jure Saxonum, p. 12.

b Sp. L. b. 30. c. 18. Capitul. Lud. pii. A. D. 819. c. 2.

c

Wilk. LL. Angl. Sax. 117.

d de jure Sueonum. l. 1. c. 4.

**Quoted, 1 Ga. Dec. 53; 47 Miss. 626.

+-+ Quoted, 2 Ohio St. 304; 59 Am. Dec. 673; 25 W. Va. 517.

juridical polity, to the superior genius of Alfred the great; to whom, on account of his having done much, it is usual to attribute everything: and as the tradition of antient Greece placed to the account of their one Hercules whatever atchievement was performed superior to the ordinary prowess of mankind. Whereas *the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other.* It's establishment however and use, in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battel, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In magna carta it is more than once insisted on as the principal bulwark of our liberties; but especially by chap. 29. that no freeman shall be hurt in either his person or property; "nisi per legale judicium parium suorum vel per legem terræ."† A privilege which is couched in almost the same words with that of the emperor Conrad, two hundred years before: nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suorum." And it was ever esteemed, in all countries, a privilege of the highest and most beneficial nature. [See note

61, page 507.]

66

But I will not mispend the reader's time in fruitless encomiums on this method of trial: but shall proceed to the dissection and examination of it in all it's parts, from whence indeed it's highest encomium will arise; e LL. Longob. l. 3. t. 8. l. 4.

*-* Quoted, 2 Ohio St. 204; 59 Am. Dec. 673; 25 W. Va. 517.

+ Cited, 5 R. I. 506; 5 Smedes & M. 685.

+- Quoted, 2 Fla. 113: 48 Am. Dec. 183.

The substance of the paragraph is quoted in 47 Miss. 626. Cited,

61 N. H. 425; 60 Am. Rep. 327.

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