qualifications of a champion are not to be lost sight of, he must have been "idoneus testis and "liber homo." (Glanville, lib. ii. c. 6 and 7. Several Tracts on Judicial Combats. Hearne's Curious Discourses. Selden de Duello. 2 Inst. 247. 3 Inst. 157, 159, 221. Reeves's History of the Law, Henry II. Henry III. Edw. III. Henry VI. Among the Cottonian Manuscripts, is a mass of Materials respecting the Law of Duels, a great portion in the hand-writing of the Earl of Northampton, who was in the Commission for executing the Office of Earl Marshal.)—The trial by ordeal was very prevalent during the Saxon period. The forms of it are particularly described by Selden in his "Janus Anglorum." Only one species of it occurs in the survey of Domesday. It had gone out of use before the time of Bracton, who makes no mention of it in his book. Its abolition is thought to be properly referred to the beginning of the reign of Henry III. There is a Writ of that King preserved in Rymer, (Vol. I. p. 228.) directing the Judges itinerant to suspend all trials by fire and water, till further provision could be made; which is generally supposed to have put an end to the custom: it had previously been prohibited by the Church.-The trial by compurgators occurs in the Saxon times, and is described by Glanville. In the opinion of Selden it was the "legem terræ," mentioned in Magna Charta. Traces of this form of trial still remain in some of our inferior Courts of Law of ancient origin: it is the process which exists of common right, in the County Court and Court Baron. (Hickes's Diss. Epist. Glanville, lib. i. c. 9. 2 Inst. 45. 143.) And the privilege of it has been claimed in modern times in the Courts of Westminster. (1 N. R. 297. 2 B. and C. 538.) The prevalence of the trial by compurgators, was greatly diminished when it became settled, that wager of law was not allowable in Exchequer process: there is a determination to this effect in the reign of Henry V. but the question long remained open to discussion. The actions upon the case given by the Statute of Westminster, were, in the time of Fortescue, gradually supplanting the trial by wager of law, in becoming a substitute for those forms of action in which law-wager was permitted. These actions upon the case had been greatly expanded in the reign of Henry VI. Assumpsit had been brought so early as in that of Henry IV. Yet it was not until this last species of action had become a remedy applicable to all cases of debt, on simple contract; till the action of trover was generally adopted instead of detinue, and Chancery proceedings were resorted to in preference to the action of account, that the trial by Jury can be said to have completely superseded that of wager of law. (Reeves's History of the Law. Henry IV. Henry V. Henry VI.)-There are some instances of a very singular and mixed species of trial; a trial before the Lords in which there

E

was

was a verdict of a Jury. Such were the cases of Sir T. Berkeley, in the reign of Edward the Third, and of Alice Piers in that of Richard II. (Report of the Lords' Committees respecting the Peerage, p. 267. Reeves's History, Edw. III. Rich. II.) And an enumeration of some other modes of trial of inferior importance is to be found in the Report of the Case of the Abbot of Strata Marcella. (9 Rep. and see respecting the Number of Jurors in particular Cases, Hargr. Co. Litt. 155. a. n. 3. 159 a. n. 2.)

CHAP. XXI.

By the course of Civil Law, the party, who, upon the trial, holds the affirmative side of the question, is to produce his Witnesses, whom he is at liberty to name at his pleasure. On the other hand, a negative is incapable of being proved; I mean directly, though indirectly it is otherwise. Now, he may well be thought a person of an inconsiderable interest, and of less application, who, from the gross of mankind and all his acquaintance, cannot find out two, so devoid of conscience and all faith, who, through fear, inclination, affection, or for a bribe, will not be ready to gainsay the truth. So that the party, to make good his cause, is at his liberty to produce two of such a stamp;

a

Hale, in his History of the Common Law, observes, that it is one of the excellencies of a Jury over the trial by witnesses, that although the Jurors ought to give great regard to the testimony of witnesses, yet they are not always bound by it. But some trials by our law have witnesses without a Jury: as of the life and death of the husband in Dower, and in "cui in vitâ,” so in Englesherie anciently, and in "nativo habendo." The mention of the trial " per proves" in contradistinction to the trial "per pais" often occurs in Glanville, Bracton and the year books. A practice appears to have been introduced, in consequence of a clause in Magna Charta, (c. 28.) to examine the secta or suit of the plaintiff, and in several ancient records, the result of the examination is given, and sometimes the default of the plaintiff in not producing his secta is mentioned: this proceeding appears to have become a mere formality in the time of Edw. III. (2 Inst. 44. 80. 662. Dyer 185 a. Selden ad Fortescue. Bracton, lib. iv. Tract. 6. cap. 7. Fleta 137. Year Book, 17 Edw. III. fol. 48. b. Reeves's History of the Law, Henry III. Edw. III.)

and if the other party had ever so much mind to object against them, or their evidence, it will not always happen that they are or can be known by the party, defendant in the cause, in order to call in question their life and conversation, that, as persons of a profligate character, they might be cross-examined; upon which account their evidence might be set aside: and, seeing their evidence is in the affirmative, it is not so capable of being overthrown by circumstances, or any other indirect proofs. Who then can live securely with respect to his life, or estate, under such a law which is so much in favour of any one, who has a mind to do mischief? And, what two wicked wretches have usually so little caution, as not to form to themselves beforehand a perfect story of the fact, about which they know they are to be examined, with every minute circumstance attending it, as if they had been true and real? "For, the children of this world (as our Saviour says) are in their generation wiser than the children of light." So, wicked Jezebel produced in judgment two witnesses, sons of Belial, to impeach Naboth, whereby he lost his life, and Ahab took possession of his vineyard. (1 Kings xxi. 11, 17.) Again, by the testimony of two elders, who were judges, Susanna the virtuous wife of Joacim, had been put to death as an adulteress, had not GOD himself miraculously interposed to rescue her by a method so sudden and inconceivable, as carried the plain marks of inspired wisdom, and such as was far above the natural attainments of a youth, not yet arrived to maturity of years or judgment. For, though by varying in their evidence, he plainly convicted them to be false witnesses; yet, who but GOD alone, could have foreseen that they would thus have varied in their evidence? Since there was no law which obliged them to be so exact in every little circumstance, as to remember under

what kind of tree the fact alleged was committed. For, the witnesses of any criminal action are not supposed to take notice of every bush, or other circumstance of place, which seemed to import nothing, either as to the detecting or aggravating of the crime. But, when those wicked judges, in such their wilful deposition, varied concerning the species of the trees, their own words demonstrated that they had prevaricated and deviated from the truth, whereby they deservedly incurred the sentence of the law of Moses, according to which, they did unto them in such sort as they maliciously intended to do to their neighbour: and they put them to death.

You have, most gracious Prince! within your own memory, a remarkable instance, how much Justice may be perverted, in the case of Mr. John Fringe: who, after he had been in priests' orders for three years, was, by his own procurement, and the deposition of two false witnesses, (who swore that he had been formerly contracted to a certain young girl) compelled to quit his orders and to marry her: after cohabiting with her fourteen years, and having had by her seven children, being at last convicted of high treason against your highness, in the very article of death, and in the hearing of a multitude of people, he declared that those witnesses had been suborned by him, and that what they deposed was utterly false and groundless. Many like instances you may have heard of, where justice has been perverted by means of false witnesses; even under judges of the greatest integrity, as is notorious to those, who converse with and know mankind. This sort of wickedness, alas! is but too frequently committed.