Blackstone's Commentaries on the Laws of England
Book the Third - Chapter the Twenty-Third : Of the Trial by Jury
PRIVATE WRONGS.
BOOK III.
Ch. 23.
CHAPTER THE TWENTY THIRD.
OF THE TRIAL BY JURY.
THE fubject of our next enquiries 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 ufed time out of mind in this nation, and feems to have been co-eval with the firft civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themfelves, the firft inhabitants of our ifland; but certain it is, that they were in ufe among the earlieft Saxon colonies, their inftitution being afcribed by bifhop Nicolfon
a to Woden himfelf, their great legiflator and captain. Hence it is, that we may find traces of juries in the laws of all thofe nations which adopted the feodal fyftem, as in Germany, France, and Italy; who had all of them a tribunal compofed of twelve good men and true, “boni bomines,” ufually 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
b. In England we find actual mention of them fo early as the laws of king Ethelred, and that not as a new invention
c. Stiernhook
d
.{FS}
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. I. c. 4.
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afcribes
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afcribes the invention of the jury, which in the Teutonic languages 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 other pieces of juridical polity, to the fuperior genius of Alfred the great; to whom, on account of his having done much, it is ufual to attribute every thing: and as the tradition of antient Greece placed to the account of their one Hercules whatever atchievement was performed fuperior to the ordinary prowefs of mankind. Whereas the truth feems to be, that this tribunal was univerfally eftablifhed among all the northern nations, and fo interwoven in their very conftitution, that the earlieft accounts of the one give us alfo fome traces of the other. It's eftablifhment however and ufe, in this ifland, of what date foever it be, though for a time greatly impaired and fhaken by the introduction of the Norman trial by battel, was always of highly efteemed and valued by the people that no conqueft, no change of government, could ever prevail to abolifh it. In magna carta it is more than once infifted on as the principal bulwark of our liberties; but efpecially by chap. 29. that no freeman fhall 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
e: “nemo beneficium fuum perdat, nifi fecundum confuetudinem antecefforum “noftrorum et per judicium parium fuorum.” And it was ever efteemed, in all countries, a privilege of the higheft and moft beneficical nature.
BUT I will not mifpend the reader's time in fruitlefs encomiums on this method of trial: but fhall proceed to the diffiction and examination of it in all it's parts, from whence indeed it's higheft encomium will arife; fince, the more it is fearched into and underftood, 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 becaufe he may be frequently
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e LL. lougob. l. 3. t. 8. l. 4.
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called upon to determine in this capacity the rights of others, his fellow-fubjects; as becaufe his own property, his liberty, and his life, depend upon maintaining, in it's legal force, the conftitutional trial by jury.
TRIALS by jury in civil caufes are of two kinds; extraordinary, and ordinary. The extraordinary I fhall only briefly hint at, and confine the main of may obervations to that which is more ufual and ordinary.
THE firft fpecies of extraordinary trial by jury is that of the grand affife, which was inftituted by king Henry the fecond in parliament, as was mentioned in the preceding chapter, by way of alternative offered to the choice of the tenant or defendant in a writ of right, inftead of the barbarous and unchriftian cuftom of duelling. For this purpofe a writ de magna affifa eligenda is directed to the fheriff
f , to return four knights, who are to elect and chufe twelve others to be joined with them, in the manner mentioned by Glanvil
g; who, having probably advifed the meafure itfelf, in the meafure itfelf, is more than ufually copious in defcribing it: and thefe, all together, form the grand affife, or great jury, which is to try the matter of right, and muft confift of fixteen juroros
h .
ANOTHER fpecies of extraordinary juries, is the jury to try an attaint; which is a procefs commenced againft a former jury, for bringing in a falfe verdict; of which we fhall fpeak more largely in a fubfequent chapter. At perfent I fhall only obferve, that this jury is to confift of twenty four of the beft men in the county, who are called the grand jury in the attaint, to diftinguifh them from the firft or petit jury; and thefe are to hear and try the goodnefs of the former verdict.
.{FS}
f F. N. B. 4.
g l. 2. c. 11-21.
h Finch. l. 412. 1 Leon. 303.
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WITH regard to the ordinary trial by jury in civil cafes, I fhall purfue the fame method in confidering it, that I fet out with in explaining the nature of profecuting actions in general, viz. by following the order and courfe of the proceedings themfelves, as the moft clear and perfpicuous way of treating it.
WHEN therefore an iffue is joined, by thefe words, “and this the faid A prays may be enquired of by the country,” or, “and of this he puts himfelf upon the country, and the faid B “does the like,” the court awards a writ of venire facias upon the roll or record, commanding the fheriff “that he caufe to “come here on fuch a day, twelve free and lawful men, liberos “et legales homines, of the body of his county, by whom the “truth of the matter may be better known, and who are neither of kin to the aforefaid A, nor the aforefaid B, to recognize the truth of the iffue between the faid parties
i .” And fuch writ is accordingly iffued to the fheriff.
THUS the caufe ftands ready for a trial at the bar of the court itfelf: for all trials were there antiently had, in actions which were there firft commenced; which never happened but in matters of weight and confequence, all triffing fuits being ended in the court-baron, hundred, or county courts: and all caufes of great importance or difficulty are ftill ufually retained upon motion, to be tried at the bar in the fuperior courts. But when the ufage began, to bring actions of any trifling value in the courts of Weftminfter-hall, it was found to be an intolerable burthen to compel the parties, witneffes, and jurors, to come from Weftmorland perhaps or Cornwall, to try an action of affault at Weftminfter. Therefore the legiflature took into confideration, that the kin's juftices came ufually twice in the year into the feveval counties, ad capiendas affifas, to take or try writs of affife, of mort d' anceftor, novel diffeifin, nufance, and the like. The form of which writs we may remember was ftated to be,
.{FS}
i Append. N
o . II. §. 4.
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that they commanded the fheriff to fummon an affife or jury, and go to view the land in queftion; and then to have the faid jury ready at the next coming of the juftices of the affife (together with the parties) to recognize and determine the diffeifin, or other injury complained of. As therefore thefe judges were ready in the country to adminifter juftice in real actions of afife, the legiflature thought proper to refer other matters in iffue to be alfo determined before them, whether of a mixed or perfonal kind. And therefore it was enacted by ftatute Weftm. 2. 13. Edw. I. c. 30. that a claufe of nifi prius fhould be inferted in all the aforefaid writs of venire facias; that is, “that the fheriff fhould caufe the “jurors to come to Weftminfter (or wherever the king's courts “fhould be held) on fuch a day in eafter and michaelmas terms; “nifi prius, unlefs before that day the juftices affigned to take “affifes fhall come into his faid county.” By virtue of which the fheriff returned his jorors to the court of the juftices of affife, which was fure to be held in the vacation before eafter and michaelmas terms; and there the trial was had.
AN inconvenience attended this remedy: principally becuafe, as the fheriff made no return of the jury to the court at Weftminfter, the parties were ignorant who they were till they came upon the trial, and therefore were not ready with their challenges or exceptions. For this reafon by the ftatute 42 Edw. III. c. 11. the method of trials by nifi prius was altered; and it was enacted that no inquefts (except of affife and gaol-delivery) fhould be taken by writ of nifi pruis, till after the fheriff had returned the names of the jurors to the court above. So that now the calufe of nifi prius is left out of the writ of venire facias, which is the fheriff's warrant to warn the jury; and is inferted in another part of the proceedings, as we fhall fee prefenty.
FOR now the courfe is, to make the fheriff's venire returnable on the laft return of the fame term wherein iffue is joined, viz. hilary or trinity terms, which from the making up of the iffues therein are ufually called iffuable terms. And he returns the
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names of the jurors in a panel (a little pane, or oblong piece of parchment) annexed to the writ. This jury is not fummoned, and therefore, not appearing at the day, muft unavoidably make default. For which reafon a compulfive procefs is now awarded againft the jurors, called in the common pleas a writ of habeas corpora juratorum, and in the king's bench a diftringas, commanding the fheriff to have their bodies, or to diftrein them by their lands and goods, that they may appear upon the day appointed. The entry therefore on the roll or record is
k, “that the jury is refpited, through defect of the jurors, till the firft day of the next term, then to appear at Weftminfter; unlefs before that time, viz. on wednefday the fourth of March, the juftices of our lord the king, appointed to take affifes in that county, fhall have come to Oxford, that is, to the place affigned for holding the affifes. Therefore the fheriff is commanded to have their bodies at Weftminfter on the faid firft day of next term, or before the faid juftices of affife, if before that time they come to Oxford; viz. on the fourth of March aforefaid.” And, as the judges are fure to come and open the circuit commiffions on the day mentioned in the writ, the fheriff returns and fummons this jury to appear at the affifes, and there the trial is had before the juftices of affife and nifi prius: among whom (as hath been faid
l) are ufually two of the judges of the courts at Weftminfter, the whole kingdom being divided into fix circuits for this purpofe. And thus we may obferve that the trial of common iffues, at nifi prius, was in it's original only a collateral incident to the original bufinefs of the juftices of affife; though now, by the various revolutions of practice, it is become their principal employment: hardly any thing remaining in ufe of the real affifes, but the name.
IF the fheriff be not an indifferent perfon; as if he be a party in the fuit, or be related by either blood or affinity to either of the parties, he is not then trufted to return the jury; but the venire fhall be directed to the coroners, who in this, as in many
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k Append. N
o. II. §. 4.
l See pag. 58.
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other
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other inftances, are the fubftitutes of the fheriff, to execute procefs when he is deemed an improper perfon. If any exception lies to the coroners, the venire fhall be directed to two clerks of the court, or two perfons of the county named by the court, and fworn
m. And thefe two, who are called elifors, or electors, fhall indifferently name the jury, and their return is final.
LET us now paufe awhile, and obferve (with fir Matthew Hale
n) in thefe firft preparatory ftages of the trial, how admirably this conftitution is adapted and framed for the inveftigation of truth, beyond any other method of trial in the world. For, firft the perfon returning the jurors is a man of fome fortune and confequence; that fo he may be not only the lefs tempted to commit willful errors, but likewife be refponfible for the faults of either himfelf or his officers: and he is alfo bound by the obligation of an oath faithfully to execute his duty. Next, as to the time of their return: the panel is returned to the court upon the original venire, and the jurors are to be fummoned and brought in may weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their fufficiency or infufficiency, characters, connections, and relations, that fo they may be challenged upon juft caufe; while at the fame time by means of the compulfory procefs (of diftringas or habeas corpora) the caufe is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance: which in caufes of weight and confequence is at the bar of the court; but in ordinary cafes at the affifes, held in the county where the caufe of action arifes, and the witneffes and jurors live: a provifion moft excellently calculated for the faving of expenfe to the parties. For, though the preparation of the caufes in point of uniformity of proceeding is preferved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, on attorney being able to tranfact the bufinefs of forty clients. But the troublefome and moft expenfive attendance is that of jurors and
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m Fortefc. de Laud. LL. c. 25.
n Hift. C. L. c. 12.
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witneffes at the trial; which therefore is brought home to them, in the country where moft of them inhabit. Fourthly, the perfons before whom they are to appear, and before whom the trial is to be held, are the judges of the fuperior court, if it be a trial at bar; or the judges of affife, delegated from the courts at Weftminfter by the king, if the trial be held in the country: perfons, whofe learning and dignity fecure their jurifdiction from contempt, and the novelty and very parade of whofe appearance have no fhall influence upon the multitude. The very point of their being ftrangers in the county is of infinite fervice, in preventing thofe factions and parties, which would intrude in every caufe of moment, were it tried only before perfons refident on the fpot, as juftices of the peace, and the like. And, the better to remove all fufpicion of partiality, it was wifely provided by the ftatutes 4 Edw. III. c. 2. 8 Ric. II. c. 2. and 33 Hen. VIII. c. 24. that no judge of affife fhould hold pleas in any county wherein he was born or inhabits. And, as this conftitution prevents party and faction from intermingling in the trial of right, fo it keeps both the rule and the adminiftration of the laws uniform. Thefe juftices, though thus varied and fhifted at every affifes, are all fworn to the fame laws, have had the fame education, have purfued the fame ftudies, converfe and confult together, communicate their decifions and refolutions, and prefide in thofe courts which are mutually connected and their judgments blended together, as they are interchangeably courts of appeal or advice to each other. And hence their adminiftration of juftice, and conduct of trials, are confonant and uniform; whereby that confufion and contrariety are avoided, which would naturally arife from a variety of uncommunicating judges, or from any provincial eftablifhment. But let us now return to the affifes.
WHEN the general day of trial sis fixed, the plaintiff or his attorney muft bring down the record to the affifes, and enter it with the proper officer, in order to it's being called on in courfe. If it be not fo entered, it cannot be tried; therefore it is in the
plaintiff's
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plaintiff's breaft to delay any trial by not carrying down the record: unlefs the defendant, being fearful of fuch neglect in the plaintiff, and willing to difcharge himfelf from the action, will himfelf undertake to bring on the trial, giving proper notice to the plaintiff. Which proceeding is called the trial by provifo; by reafon of the claufe then inferted in the fheriff's venire, viz. “provifo, provided that if two writs come to your hands, (that is one from the plaintiff and another from the defendant) you fhall execute only one of them.” But this practice begins to be difufed, fince the ftatute 14 Geo. II. c. 17. which enacts, that if, after iffue joined, the caufe is not carried down to be tried according to the courfe of the court, the plaintiff fhall be efteemed to be nonfuited, and judgment fhall be given for the defendant as in cafe of a nonfuit. In cafe the plaintiff intends to try the caufe, he is bound to give the defendant (if he lives within forty miles of London) eight days notice of trial; and, if he lives at a greater diftance, then fourteen days notice, in order to prevent furprize: and if the plaintiff then charges his mind, and does not countermand the notice fix days before the trial, he fhall be liable to pay cofts to be defendant for not proceeding to trial, by the fame laft mentioned ftatute. The defendant however, or plaintiff, may, upon good caufe fhewn to the court above, as upon abfence or ficknefs of a material witnefs, obtain leave upon motion to defer the trial of the caufe till the next affifes.
BUT we will now fuppofe all previous fteps to be regularly fettled, and the caufe to be called on in court. The record is then handed to the judge, to perufe and obferve the pleadings, and what iffues the parties are to maintain and prove, while the jury is called and fworn. To this end the fheriff returns his compulfive procefs, the writ of habeas corpora, or diftringas, with the panel of jurors annexed, to the judge's officer in court. The jurors contained in the panel are either fpecial or common jurors. Special juries were originally introduced in trials at bar, when the caufes were of too great nicety for the difcuffion of ordinary
free-
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freeholders; or where the fheriff was fufpected of partiality, though not upon fuch apparent caufe, as to warrant an exception to him. He is in fuch cafes, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholder's book; and the officer is to take indifferently forty eight of the principal freeholders in the prefence of the attornies on both fides; who are each of them to ftrike off twelve, and the remaining twenty four are returned upon the panel. By the ftatute 3 Geo. II. c. 25. either party is intitled upon motion to have a fpecial jury ftruck upon the trial of any iffue, as well at the affifes as at bar; he paying the extraordinary expenfe, unlefs the judge will certify (in purfuance of the ftatute 24 Geo. II. c. 18.) that the caufe required fuch fpecial jury.
A COMMON jury is one returned by the fheriff according to the directions of the ftatute 3 Geo. II. c. 25. which appoints, that the fheriff fhall not return a feparate panel for every feparate caufe, as formerly; but one and the fame panel for every caufe to be tried at the fame affifes, containing not lefs than forty eight, nor more than feventy two, jurors: and that their names, being written of tickets, fhall be put into a box or glafs; and when each caufe is called, twelve of thefe perfons, whofe names fhall be firft drawn out of the box, fhall be fworn upon the jury, unlefs abfent, challenged, or excufed; and unlefs a previous view of the lands, or tenements, or other matters in queftion, fhall have been though neceffary by the court: in which cafe fix or more of the jurors returned, to be agreed on by the parties, or named by a judge or other proper officer of the court, fhall be appointed to take fuch view; and then fuch of the jury as have appeared upon the view (if any
o) fhall be fworn on the inqueft previous to any other jurors. Thefe acts are well calculated to reftrain any fufpicion of partiality in the fheriff, or any tampering with the jurors when returned.
.{FS}
o 4 Burr. 252.
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AS
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AS the jurors appear, when called, they fhall be fworn, unlefs challenged by either party. Challenges are of two forts; challenges to the array, and challenges to the polls.
CHALLENGES to the array are at once an exception to the whole panel, in which the jury are arrayed or fet in order by the fheriff in his return; and they may be made upon account of partiality or fome default in the fheriff, or his under-officer who arrayed the panel. And, generally fpeaking, the fame reafons that before the awarding the venire were fufficient to have directed it to the coroners or clifors, will be alfo fufficient to quafh the array, when made by a perfon or officer of whofe partiality there is any tolerable ground of fufpicion. Alfo, though there be no perfonal objection againft the fheriff, yet if he arrays the panel at the nomination, or under the direction of either party, this is good caufe of challenge to the array. Formerly, if a lord of parliament had a caufe to be tried, and no knight was returned upon the jury, it was a caufe of challenge to the array: but an unexpected ufe having been made of this dormant privilege by a fpiritual lord
p, (though his title to fuch privilege was very doubtful
q) it was abolifhed by ftatute 24 Geo. II. c. 18. Alfo, by the policy of the antient law, the jury was to come de vicineto, from the neighbourhood of the vill or place where the caufe of action was laid in the declaration; and therefore fome of the jury were obliged to be returned from the hundred in which fuch vill lay; and, if none were returned, the array might be challenged for defect of hundredors. Thus the Gothic jury, or nembda, was alfo collected out of every quarter of the country; “binos, trinos, vel etiam fenos, ex fingulis territorii quadrantibus
r.” For, living in the neighbourhood, they were properly the very country, or pais, to which both parties had appealed; and were fuppofed to know before-hand the characters of the parties and witneffes, and therefore the better knew what credit to give to the
.{FS}
p K. v. B
p of Worcefter. M. 23 Geo. II. B. R.
q 2 Whitclocke of parl. 211.
r Stiernhook de jure Goth. l. 1. c. 4.
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facts
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facts alleged in evidence. But this convenience was overbalanced by another very natural and almoft unavoidable inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of right. And this our law was fo fenfible of, that it for a long time has been gradually relinquifhing this practice; the number of neceffary hundredors in the whole panel, which in the reign of Edward III were conftantly fix
s, being in the time of Fortefcue
t reduced to four. Afterwards indeed the ftatute 35 Hen. VIII. c. 6. reftored the antient number of fix, but that claufe was foon virtually repealed by ftatute 27 Eliz. c. 6. which required only two. And fir Edward Coke alfo
u gives us fuch a variety of circumftances, whereby the courts permitted this neceffary number to be evaded, that it appears they were heartily tired of it. At length, by ftatute 4 & 5 Ann. c. 16. it was entirely abolifhed upon all civil actions, except upon penal ftatutes; and upon thofe alfo by the 24 Geo. II. c. 18. the jury being now only to come de corpore comitatus, from the body of the county at large, and not de vicineto, or from the particular neighbourhood. The array by the antient law may alfo be challenged, if an alien by party to the fuit, and, upon a rule obtained by his motion to the court for a jury de medietate linguae, fuch a one be not returned by the fheriff, purfuant to the ftatute 28 Edw. III. c. 18. which enacts, that where either party is an alien born, the jury fhall be one half aliens and the other denizens, if required, for the more impartial trial. A privilege indulged to ftrangers in no other country in the world; but which is as antient with us as the time of king Ethelred, in whofe ftatute de monticolis Walliae (then aliens to the crown of England) cap. 3. it is ordained, that “duodeni legales homines, quorum fex Walli et fex Angli erunt, Anglis et Wallis jus dicunto.” But where both parties are aliens, no partiality is to be prefumed to one more than another; and therefore the ftatute 21 Hen. VI. c. 4. the whole jury are then directed to be denizens. And it may be queftioned, whether the
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s Gilb. Hift. C. P. c. 8.
t d Laud. LL. c. 25.
u 1 Inft. 157.
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ftatute
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ftatute
3 Geo. II. c. 25. (before referred to) hath not in civil caufes undefignedly abridged this privilege of foreigners, by the pofitive directions therein given concerning the manner of impaneling jurors, and the perfons to be returned in fuch panel. So that the court might probably hefitate, efpecially in the cafe of fpecial juries, how far it has now a power to direct a panel to be returned de medietate linguae, and to alter the method prefcribed for ftriking a fpecial jury, or balloting for common jurymen.
CHALLENGES to the polls in capita, are exceptions to particular jurors; and feem to anfwer the recufatio judicis in the civil and canon laws: by the conftitutions of which a judge might be refufed upon any fufpicion of partiality
w. By the laws of England alfo, in the times of Bracton
x and Fleta
y, a judge might be refufed for good caufe; but now the law is otherwife, and it is held that judges or juftices cannot be challenged
z. For the law will not fuppofe a poffibility of biafs or favour in a judge, who is already fworn to adminifter impartial juftice, and whofe authority greatly depends upon that prefumption and idea. And fhould the fact at any time prove flagrantly fuch, as the delicacy of the law will not perfume beforehand, there is no doubt but that fuch mifbehaviour would draw down a heavy cenfure from thofe, to whom the judge is accountable for his conduct.
BUT challenges to the polls of the jury (who are judges of fact) are rudeced to four heads by fir Edward Coke
a: propter honoris refpectum; propter defectum; propter affectum; and propter delictum.
1. Propter honoris refpectum; as if a lord of parliament be impanelled on a jury, he may be challenged by either party, or he may challenge himfelf.
.{FS}
w Cod. 3. 1. 16. Decretal. i. 2. t. 28. c. 36.
x l. 5. c. 15.
y l. 6. c. 37.
z Co. Litt. 294.
a 1 Inft. 156.
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2. Propter defectum; as if a juryman be an alien born, this is defect of birth; if he be a flave or bondman, this is defect of liberty, and he cannot be liver et legalis homo. Under the word homo alfo, though a name common to both fexes, the female is however excluded, propter defectum fexus: except when a widow feigns herfelf with child, in order to exclude the next heir, and a fuppofitious birth is fufpecte to be intended; then upon the writ de ventre infpiciendo, a jury of women is to be impaneled to try the queftion, whether with child, or not
b. But the principal deficiency is defect of eftate, fufficient to qualify him to be a juror. This depends upon a variety of ftatutes. And, firft, by the ftatute Weftm. 2. 13 Edw. I. c. 38. none difpend 20 s. by the year at the leaft; which is encreafed to 40 s. by the ftatute 21 Edw. I. ft. 1. and 2 Hen. V. Ft. 2. c. 3. This was doubled by the ftatute 27 Eliz. c. 6. which requires in every fuch cafe the jurors to have eftate of freehold to the yearly value of 4 l. at the leaft. But, the value of money at that time decreafing very confiderably, this qualification was raifed by the ftatute 16 & 17 Car. II. c. 3. to 20 l. per annum, which being only a temporary act, for three years, was fuffered to expire without renewal, to the great debafement of juries. However by the ftatute 4 & 5 W. & M. c. 24. it was again raifed to 10 l. per annum in England and 6 l. in Wales, of freehold lands or copyhold; which is the firft time that copyholders (as fuch) were admitted to ferve upon juries in any of the king's courts, though they had before been admitted to ferve in fome of the fheriff's courts, by ftatutes 1 Ric. III. c. 4. and 9 Hen. VII. c. 13. And, laftly, by ftatute 3 Geo. II. c. 25. any leafeholder for the term of five hundred years abfolute, or for any term determinable upon life or lives, of the clear yearly value of 20 l. per annum over and above the rent referved, is qualified to ferve upon juries. When the jury is de medietate linguae, that is, one moiety of the Englifh tongue or nation, and the other of any foreign one, no want
.{FS}
b Cro. Eliz 566.
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of lands fhall be caufe of challenge to the alien; for, as he is incapable to hold any, this would totally defeat the privilege.
3. JURORS may be challenged propter affectum, for fufpicion of biafs or partiality. This may either a principal challenge, or to the favour. A principal challenge is fuch, where the caufe affigned carries with it prima facie evident marks of fufpicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree
c; that he has been arbitrator on either fide; that he has an intereft in the caufe; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the fame caufe; that he is the party's mafter, fervant, counfellor, fteward or attorney, or of the fame fociety or corporation with him: all thefe are principal caufes of challenge; which, if true, cannot be overruled, for jurors muft be omni exceptione majores. Challenges to the favour, are where the party hath no principal challenge; but object only fome probably circumftances of fufpicion, as acquaintance, and the like
d; the validity of which muft be left to the determination of triors, whofe office it is to decide whether the juror be favourable or unfavourable. The triors, in cafe the firft man called be challenged, are two indifferent perfons named by the court; and, if they try one man and find him indifferent, he fhall be fworn; and then he and two triors fhall try the next; and when another is found indifferent and fworn, the two triors fhall be fuperfeded, and the two firft fworn on the jry fhall try the reft
e.
4. CHALLENGES propter delictum are for fome crime or mifdemefnor, that affects the juror's credit and renders him infamous. As for a conviction of treafon, felony, perjury, or con-
.{FS}
c Finch. L. 401.
d In the nembda, or jury, or the antient Goths, three challenges only were allowed to the favour, but the principal challenges were indefinite. “Licebat palam excipere, et femper ex probabili caufa tres repudiart; etiant plures ex caufa praegnanti et manifefta.” (Stiernhook l. 1. c. 4.)
e Co. Litt. 158.
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fpiracy; or if he hath received judgment of the pillory, tumbrel, or the like; or to be branded, whipt, or ftigmatized; or if he be outlawed or excommunicated, or hath been attainted of falfe verdict, praemunire, or forgery; or laftly, if he hath proved recreant when champion in the trial by battle, and thereby hath loft his liberam legem. A juror may himfelf be examined on oath of voir dire, veritatem dicere, with regard to the three former of thefe caufes of challenge, which are not to his difhonour; but not with regard to this head of challenge, propter delictum, which would be to make him either forfwear or accufe himfelf, if guilty.
BESIDES thefe challenges, which are exceptions againft the fitnefs of jurors, and whereby they may be excluded form ferving; there are alfo other caufes to be made ufe of by the jurors themfelves, which are matter of exemption; whereby their fervice is excufed, and not excluded. As by ftatute Weftm. C. 13. Edw. I. c. 38. fick and decrepit perfons, perfons not commorant in the county, and men above feventy years old; and by the ftatute of 7 & 8 W. III. c. 32. infants under twenty one. This exemption is alfo extended by divers ftatutes, cuftoms, and charters, to phyficians and other medical perfons, counfel, attorneys, officers of the courts, and the like; all of whom, if impaneled, muft fhew their fpecial exemption. Clergymen are alfo ufually excufed, out of favour and refpect to their function: but, if they are feifed of lands and tenements, they are in ftrictnefs liable to be impaneled in refpect of their lay fees, unlefs they be in the fervice of the king or of fome bifhop; “in obfequio domini regis, vel alicujus epifcopi
f.”
IF by means of challenges, or other caufe, a fufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A takes is a fupply of fuch men, as are fummoned upon the firft panel, in order to make up the deficiency. For this purpofe a writ of decem tales, ofct tales, and
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f F. N. B. 166. Reg. Brev. 179.
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the like, was ufed to be iffued to the fheriff at common law, and muft be ftill fo done at a trial at bar, if the jurors make default. But at the affifes or mifi prius, by virtue of the ftatute 35 Hen. VIII. c. 6. and other fubfequent ftatutes, the judge is impowered at the prayer of either party to award a tales de circumftantibus
g, of perfons prefent in court, to be joined to the other jurors to try the caufe; who are liable however to the fame challenges as the principal jurors. This is ufually done, till the legal number of twelve be completed; in which patriarchal and apoftolical number fir Edward Coke
h hath difcovered abundance of myftery
i.
WHEN a fuficient number of perfons impaneled, or talesmen, appear, they are then feparately fworn, well and truly to try the iffue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, fc. Juratores.
WE may here again obferve, and obferving we cannot but admire, how how fcrupuloufly delicate and how impartially juft the law of England approves itfelf, in the conftitution and frame of a tribunal, thus excellently contrived for the teft and inveftigation of truth; which appears moft remarkably, 1. In the avoiding of frauds and fecret management, by electing the twelve jurors out of the whole panel by lot. 2. In it's coution againft all partiality and biafs, by quafhing the whole panel or array, if the officer returning is fufpected to be other than indifferent; and repelling particular jurors, if probably caufe be fhewn of malice
.{FS}
g Append. N
o II. §. 4.
h 1 Inft. 155.
i Paufanias relates, that at the trial of Mars, for murder, in the court denominated areopagus from that incident, he was acquitted by a jury compofed of twelve pagan deities. And Dr Hickes, who attributes the introduction of this number to the Normans, (though he allows the inftitution of juries in general to be of much higher antiquity in England) tells us that among the inhabitants of Norway, from whom the Normans as well as the Danes were defcended, a great veneration was paid to the number twelve; “nihil fanctius, nihil antiquius fuit; perindc ac fi in ipof hoc numero feereta quaedam effet religio.” (Differt. epiftolar. 4.)
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or favour to either party. The prodigious multitude of exceptions or challenges allowed to jurors, who are the judges of fact, amounts nearly to the fame thing as was practifed in the Roman republic, before the loft her liberty: that the felect judges fhould be appointed by the praetor with the mutual confent of the parties. Or, as Tully
j expreffes it: “neminem voluerunt majores noftri, non modo de exiftimatione cujufquam, fed ne pecuniaria quidem de re minima, effe judicem; nifi qui inter adver farios conveniffet.
INDEED thefe felecti judices bore in many refpects a remarkable refemblance to our juries: for they were firft returned by the praetor; de decuria fenatoria confcribuntur: then their names were drawn by lot, till a certain number was completed; in urnam fortito mittuntur, ut de pluribus neceffarius numerus confici poffet: then the parties were allowed their challenges; poft urnam permittitur accufatori, ac reo, ut ex illo numero rejiciant quos putaverint fibi aut inimicos aut ex aliqua re incommodes fore: next they ftruck what we call a tales; rejectione celebrata, in eorum locum qui rejecti fuerunt, fubfortiebatur praetor alios, quibus ille judicum legitimus numerus compleretur: laftly, the judges, like our jury, were fworn; his perfectis, jurabant in leges judices, ut obftricti religione judicarent
k.
THE jury are now ready to hear the merits; and, to fix their attention the clofer to the facts which they are impaneled and fworn to try, the pleading are opened to them by counfel on that fide which holds the affirmative of the queftion in iffue. For the iffue is faid to lie, and proof is always firft required, upon that fide which affirms the matter in queftion: in which our law agrees with the civil
l; ei incumbit probation, qui dicit, “non qui negat: cum per rerum naturam factum-negantis probatio nulla fit.” The opening counfel briefly informs them what has been tranfacted in the court above; the parties, the nature of the
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j pro Cluentio. 43.
k Afcon. in Cic. Verr. 1. 6.
l Ff. 22. 3. 2. Cod. 4. 19. 23.
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action, the declaration, the plea, replication, and other proceedings, and laftly upon what point the iffue is joined, which is there fent down to be determined. Inftead of which formerly
m the whole record and procefs of the pleadings was read to them in Englifh by the court, and the matter in iffue clearly explained to their capacities. The nature of the cafe, and the evidence intended to be produced, are next laid before them by counfel alfo on the fame fide; and, when their evidence is gone through, the advocate on the other fide opens the adverfe cafe, and fupports it by evidence; and then the party which began s heard by way of reply.
THE nature of my prefent defign will not permit me to enter into the numberlefs niceties and diftinctions of what is, or is not, legal evidence to a jury
n. I fhall only therefore felect a few of the general heads and leading maxims, relative to this point, together with fome obfervations on the manner of giving evidence.
AND, firft, evidence fignifies that which demonftrates, makes clear, or afcertains the truth of the very fact or point in iffue, either on the one fide or on the other; and no evidence ought to be admitted to any other point. Therefore upon an action of debt, when the defendant denies his bond by the plea of non eft factum, and the iffue is, whether it be the defendant's deed or no; he cannot give a releafe of this bond in evidence: for that does not deftroy the bond, and therefore does not prove the iffue which he has chofen to rely upon, viz. that the bond has no exiftence.
.{FS}
m Fortefc. c. 26.
n This is admirably well performed in lord chief baron Gilbert's excellent treatife of evidence; a work which it is impoffible to abftract or abridge, without lofing fome beauty and deftroying the chain of the whole; and which hath lately been engrafted into that learned and ufeful work, the introduction to the law of nifi prius. 4
to. 1767.
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AGAIN;
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AGAIN; evidence in the trial by jury is of two kinds, either that which is given in proof, or that which the jury may receive by their own private knowledge. The former, or proofs, (to which in common fpeech the name of evidence is ufually confined) are either written, or parol, that is, by word of mouth. Written proofs, or evidence, are, 1. Records, and 2. Antient deeds of thirty years ftanding, which prove themfelves; but 3. Modern deeds, and 4. Other writings, muft be attefted and verified by parol evidence of witneffes. And the one general rule that runs through all the doctrine of trials is this, that the beft evidence the nature of the cafe will admit of fhall always be required, if poffible to be had; but, if not poffible, then the beft evidence that can be had fhall be allowed. For if it be found that there is any better evidence exifting than is produced, the very not producing it is a prefumption that it would have detected fome falfehood that at prefent is concealed. Thus, in order to prove a leafe for years, nothing elfe fhall be admitted but the very deed of leafe itfelf, if in being; but if that be pofitively proved to be burnt or deftroyed (not relying on any loofe negative, as that it cannot be found, or the like) then an attefted copy may be produced; or parol evidence be given of it's contents. So, no evidence of a difcourfe with another will be admitted, but the man himfelf muft be produced; yet in fome cafes (as in proof of any general cuftoms, or matters of common tradition or repute) the courts admit of hearfay evidence, or an account of what perfons deceafed have declared in their life-time: but fuch evidence will not be received of any particular facts. So too, books of account, or fhop-books, are not allowed of themfelves to be given in evidence for the owner; but a fervant who made the entry may have recourfe to them to refrefh his memory: and, if fuch fervant (who was accuftomed to make thofe entries) be dead, and his hand be proved, the book may be read in evidence
o: for, as tradefmen are often under a neceffity of giving credit without any note or writing, this is therefore, when accompanied
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o Law of nifi prius. 266.
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with fuch other collateral proofs of fairnefs and regularity
p, the beft evidence that can then be produced. However this dangerous fpecies of evidence is not carried for far in England as abroad
q; where a man's own books of accounts, by a diftortion of the civil law (which feems to have meant the fame thing as is practifed with us
r) with the fuppletory oath of the merchant, amount at all times to full proof. But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long diftance of time, the ftatute 7 Jac. I. c. 12. (the penners of which feem to have imagined that the books of themfelves were evidence at common law) confines this fpecies of proof to fuch tranfactions as have happened within one year before the action brought; unlefs between merchant and merchant in the ufual intercourfe of trade. For accounts of fo recent a date, if erroneous, may more eafily be unraveled and adjufted.
WITH regard to parol evidence, or witneffes; it muft firft be remembered, that there is a procefs to bring them in by writ of fubpoena ad teftificandum: which commands them, laying afide all pretences and excufes, to appear at the trial on pain of 100 l. to be forfeited to the king; to which the ftatute 5 Eliz. c. 9. has added a penalty of 10 l. to the party aggrieved, and damages equivalent to the lofs fuftained by want of his evidence. But no witnefs, unlefs his reafonable expenfes be tendered him, is bound to appear at all; nor, if he appears, is he bound to given evidence till fuch charges are actually paid him: except he refides within the bills of mortality, and is fummoned to give evidence within the fame. This compulfory procefs, to bring in unwilling witneffes, and the additional terrors of an attachment in cafe of difobedience, are of excellent ufe in the through inveftigation of truth: and, upon the fame principle, in the Athe-
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p Salk. 285.
q Gail. obfervat. 2. 20. 23.
r Inftrumenta domeftica, fen adnotatio, fi non aliis quoque adminiculis adjuventur, ad probationem fola non fufficiunt. (Cod. 4. 19. 5.) Nam exemplo perniciofum eft, ut ei feripturae credatur, que unufquifque fibi adnotatione propria debitor em conftituit. (Ibid. l. 7.)
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nain courts, the witneffes who were fummoned to attend the trial had their choice of three things; either to fwear to the truth of the fact in queftion, to deny or adjure it, or elfe to pay a fine of a thoufand drachmas
s.
ALL witneffes, that have the ufe of their reafon, are to be received and examined, except fuch as are infamous, or fuch as are interefted in the event of the caufe. All others are competent witneffes; though the jury from other circumftances will judge of their credibility. Imfamous perfons are fuch as may be challenged as jurors, propter delictum; and therefore never fhall be admitted to give evidence to inform that jury, with whom they were too fcandalous to affociate. Interefted witneffes may be examined upon a voir dire, if fufpected to be fecretly concerned in the event; or their intereft may be proved in court. Which laft is the only method of fupporting an objection to the former clafes; for no man is to be examined to prove his own infamy. And no counfel, attorney, or other perfon, intrufted with the fecrets of the caufe by the party himfelf, fhall be compelled, or perhaps allowed, to give evidence of fuch converfation or matters of privacy, as came to his knowlege by virtue of fuch truft and confidence
t: but he may be examined as to mere matters of fact, as the execution of a deed or the like, which might have come to his knowlege without being intrufted in the caufe.
ONE witnefs (if credible) is fufficient evidence to a jury of any fingle fact; though undoubtedly the concurrence of two or more corroborates the proof. Yet our law confiders that there are many tranfactions to which only one perfon is privy; and therefore does not always demand the teftimony of two, as the civil law univerfally requires. “Unius refponfio teftis omnino non audiatur
v.” To extricate itfelf out of which abfurdity, the modern practice of the civil law courts has plunged itfelf into another. For, as they do not allow a lefs number than two witneffes to
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s Pott. Antiq. b. 1. c. 21.
s Law of nifi prius, 267.
v Cod. 4. 20. 9.
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be plena probation, they call the teftimony of one, though never fo clear and pofitive, femi-plena probatio only, on which no fentence can be founded. To make up therefore the neceffary complement of witneffes, when they have one only to any fingle fact, they admit the party himfelf (plaintiff or defendant) to be examined in his own behalf; and adminifter to him what is called the fuppletory oath: and, if his evidence happens to be is his own favour, this immediately converts the half proof into a whole one. by this ingenious device fatisfying at once the forms of the Roman law, and acknowleging the fuperior reafonablenefs of the law of England: which permits one witnefs to be fufficient where no more are to be had; and, to avoid all temptations of perjury, lays it down as an invariable rule, that nemo teftis effe debet in propria caufa.
POSITIVE proof is always required, where from the nature of the cafe it appears it might poffibly have been had. But, next to pofitive proof, circumftantial evidence or the doctrine of prefumptions muft take place: for when the fact itfelf cannot be demonftratively evinced, that which comes neareft to the proof of the fact is the proof of fuch circumftances which either neceffarily, or ufually, attend fuch facts; and thefe are called prefumptions, which are only to be relied upon till contrary be actually proved. Stabitur praefumptioni donec probetur in contrarium
u. Violent prefumption is many times equal to full proof
w; for there thofe circumftances appear, which neceffarily attend the fact. As if a landlord fues for rent due at michaelmas 1754, and the tenant cannot prove the payment, but produces an acquittance for rent due at a fubfequent time, in full of all demands, this is a violent prefumption of his having paid the former rent, and is equivalent to full proof; for though the actual payment is not proved, yet the acquittance in full of all demands is proved, which could not be without fuch payment: and it therefore induces fo forcible a prefumption, that no proof fhall be admitted
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u Co. Litt. 373.
w Ibid. 6.
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to the contrary
x. Probable prefumption, arifing from fuch circumftances as ufually attend the fact, hath alfo it's due weight: as if, in a fuit for rent due 1754, the tenant proves the payment of the rent due in 1755, this will prevail to exonerate the tenant
y, unlefs it be clearly fhewn that the rent of 1754 was retained for fome fpecial reafon, or that there was fome fraud or miftake; for otherwife it will be prefumed to have been paid before that in 1755, as it is moft ufual to receive firft the rents of longeft ftanding. Light, or rafh, prefumptions have no weight or validity at all.
THE oath adminiftred to the witnefs is not only that what be depofes fhall be true, but that he fhall alfo depofe the whole truth: fo that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not. And all this evidence is to be given in open court, in the prefence of the parties, their attorneys, the counfel, and all by-ftanders; and before the judge and jury: each party having liberty to except to it's competency, which exceptions are publicly ftated, and by the judge are openly and publicly allowed or difallowed, in the face of the country; which muft curb any fecret biafs or partiality, that might arife in his own breaft. And if, either is his directions or decifions, he mis-ftates the law by ignorance, inadvertence, or defign, the counfel on either fide may require him publicly to feal a bill of exceptions; ftating the point wherein he is fuppofed to err: and this he is obliged to feal by ftatute Weftm. 2. 13 Edw. I. c. 31. or, if he refufes fo to do, the party may have a compulfory writ againft him
z, commanding him to feal it, if the fact alleged be truly ftated: and if he returns, that the fact is untruly ftated, when the cafe is otherwife, an action will lie againft him for making a falfe return. This bill of exceptions is in the nature of an appeal; examinable, not in the court out of which the record iffues for the trial at nifi prius, but in the next immediate fuperior court, upon a writ of error, after
.{FS}
x Gilb. evid. 161.
y Co. Litt. 373.
z Reg. Br. 182. 2 Inft. 487.
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judgment given in the court below. But a demurrer to evidence fhall be determined by the court, out of which the record is fent. This happens, where a record or other matter is produced in evidence, concerning the legal confequences of which there arifes a doubt in law: in which cafe the adverfe party may if he pleafes demur to the whole evidence; which admits the truft of every fact that has been alleged, but denies the fufficiency of them all in point of law to maintain or overthrow the iffue
a: which draws the queftion of law from the cognizance of the jury, to be decided (as it ought) by the court. But neither thefe demurrers to evidence, nor the bills of exceptions, are at prefent fo much in ufe as formerly; fince the more frequent extenfion of the difcretionary powers of the court in granting a new trial, which is now very commonly had for the difdirection of the judge at nifi prius.
THIS open examination of witneffes viva voce, in the prefence of all mankind, is much more conducive to the clearing up of truth
b, than the private and fecret examination taken down in writing before an officer, or his clerk, in the ecclefiaftical courts, and all others that have borrowed their practice from the civil law: where a witnefs may frequently depofe that in private, which he will he afhamed to teftify in a public and folemn tribunal. There an artful or carelefs fcribe may make a witnefs fpeak what he never meant, by dreffing up his depofitions in his own forms and language; but he is here at liberty to correct and explain his meaning, if mifunderftood, which he can never do after a written depofition is once taken. Befides the occafional queftions of the judge, the jury, and the counfel, propounded to the wineffes on a fudden, will fift out the truth much better than a formal fet of interrogatories previoufly penned and fettled: and the confronting of adverfe witneffes is alfo another opportunity of obtaining a clear difcovery, which can never be had upon any other method of trial. Nor is the prefence of the judge, during the examination, a matter of fmall importance; for befides the
.{FS}
a Co. Littt. 72. 5 Rep. 104.
b Hale's Hift. C. L. 254, 5, 6.
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refpect and awe, with which his prefence will naturally infpire the witnefs, he is able by ufe and experience to keep the evidence from wandering from the point in iffue. In fhort by this method of examination, and this only, the perfons who are to decide upon the evidence have an opportunity of obferving the quality, age, education, underftanding, behaviour, and inclinations of the witnefs; in which points all perfons muft appear alike, when their depofitions are reduced to writing, and read to the judge, in the abfence of thofe who made them: and yet as much may be frequently collected from the matter of it. Thefe are a few of the advantages attending this, the Englifh, way of giving teftimony, ore tenus. Which was alfo indeed familiar among the antient Romans, as may be collected from Quinctilian
c; who lays down very good inftructions for examining and crofs-examining witneffes viva voce. And this, or fomewhat like it, was continued as low as the time of Hadrian
d: but the civil law, as it is now modelled, rejects all public examination of witneffes.
AS to fuch evidence as the jury may have in their own confciences, by their private knowlege of facts, it was an antient doctrine, that this had as much right to fway their judgment as the written or parol evidence which is delivered in court. And therefore it hath been often held
e, that though no proofs be produced on either fide, yet the jury might bring in a verdict. For the oath of the jurors, to find according to their evidence, was conftrued
f to be, to do it according to the beft of their own knowlege. Which conftruction was probably made out of tendernefs to juries; that they might efcape the heavy penalties of an attaint, in cafe they could fhew by any additional proof, that
.{FS}
c Inftit. orat. l. 5. c. 7.
d See his epiftle to Varus, the legate or judge of Cilicia: “tu magis fcire potes, quanta fides fit habenda teftibus; qui, et cujus dignitatis, et cujus aeftimationis fint; et, qui fimpliciter vift fint dicere; utrum unum eundemque meditatum fermonem attulerint, an ad ea quae interrogaveras extempore verifimilia refponderint.” (Ff. 22. 5. 3.)
e Year book, 14 Hen. VII. 29. Hob. 227. 1 Lev. 87.
f Vaugh. 148, 149.
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their verdict was agreeable to the truth, though not according to the evidence produced: with which additional proof the law prefumed they were privately acquainted, though it did not appear in court. But this doctrine was gradually exploded, when attaints began to be difufed, and new trials introduced in their ftead. For it is quite incompatible with the grounds, upon which fuch new trials are every day awarded, viz. that the verdict was given without, or contrary to, evidence. And therefore, together with new trials, the practice feems to have been firft introduced
g, which now univerfally obtains, that if a juror knows any thing of the matter in iffue, he may be fworn as a witnefs, and give his evidence publicly in court.
WHEN the evidence is gone through on both fides, the judge in the prefence of the parties, the counfel, and all others, fums up the whole to the jury; omitting all fuperfluous circumftances, obferving wherein the main queftion and principal iffue lies, ftating what evidence has been given to fupport is, with fuch remarks as he thinks neceffary for their direction, and giving them his opinion in matters of law arifing upon that evidence.
THE jury, after the proofs are fummed up, unlefs the cafe be very clear, withdraw from the bar to confider of their verdict: and, in order to avoid intemperance and caufelefs delay, are to be kept without meat, drink, fire, or candle, unlefs by permiffion of the judge, till they are all unanimoufly agreed. A method of accelerating unanimity not wholly unknown in other conftitutions of Europe, and in matters of greater concern. For by the golden bulle of the empire
h, if, after the congrefs is opened, the electors delay the election of a king of the Romans for thirty days, they fhall be fed only with bread and water, till the fame is accomplifhed. But if our juries eat or drink at all, or have any eatables about them, without confent of the court, and before verdict, it is fineable; and if they do fo at his charge for
.{FS}
g Styl. 233. 1 Sid. 133.
h ch. 2.
.{FE}
whom
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whom they afterwards find, it will fet afide the verdict. Alfo if they fpeak with either of the parties or their agents, after they are gone from the bar; or if they receive any frefh evidence in private; or if to prevent difputes they caft lots for whom they fhall find; any of thefe circumftances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprifoned
i, the judges are not bound to town in a cart
k. This neceffity of a total unanimity feems to be peculiar to our own conftitution
l; or, at leaft, in the nembda or jury of the antient Goths, there was required (even in criminal cafes) only the confent of the major part; and in cafe of an equality, the defendant was held to be acquitted
m.
WHEN they are all unanimoufly agreed, the jury return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himfelf, attorney, or counfel, in order to anfwer the amercement to which by the old law he is liable, as has been formerly mentioned
n, in cafe he fails in his fuit, as a punifhment for his falfe claim. To be amerced, or a mercie, is to be at the king's mercy with regard to the fine to be impofes; in mifericordia domini regis pro falfo clamore fuo. The amercement is difufed, but the form ftill continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is faid to be nonfuit, non fequitur clamorem fuum. Therefore it is ufual for a plaintiff, when he or his counfel perceives that he has not given evidence fufficient to maintain his iffue, to be voluntarily nonfuited, or withdraw himfelf: whereupon the crier is ordered to call the plaintiff; and if neither he, nor any body for him, appears, he is nonfuited, the jurors are difcharged, the action is at an end, and the defendant fhall recover his cofts.
.{FS}
i Mirr. c. 4. §. 24.
k Lib. Aff. fol. 40. pl. 11.
l See Barrington on the ftatutes. 17, 18, 19.
m Stiernh. l. 1. c. 4.
n pag. 275.
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The
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The reafon of this practice is, that a nonfuit is more eligible for the plaintiff, than a verdict againft him: for after a nonfuit, which is only a default, he may commence the fame fuit again for the fame caufe of action; but after a verdict had, and judgment confequent thereupon, he is for ever barred from attacking the defendant upon the fame ground of complaint. But, in cafe the plaintiff appears, the jury by their foreman deliver in their verdict.
A VERDOCT, vere dictum, is either privy, or public. A privy verdict is when the judge hath left or adjourned the court; and the jury, being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of court
o: which privy verdict is of no force, unlefs afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they pleafe, vary from their privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very feldom indulged. But the only effectual and legal verdict is the public verdict; in which they openly declare to have found the iffue for the plaintiff, or for the defendant; and if for the plaintiff, they affefs the damages alfo fuftained by the plaintiff, in confequence of the injury upon which the action is brought.
SOMETIMES, if there arifes in the cafe any difficult matter of law, the jury for the fake of better information, and to avoid the danger of having their verdict attainted, will find a fpecial verdict; which is grounded on the ftatute Weftm. 2. 13 Edw. I. c. 30. §. 2. And herein they ftate the naked facts, as they find them to be proved, and pray the advice of the court thereon; concluding conditionally, that if upon the whole matter the court fhall be of opinion that the plaintiff and caufe of action, they then find for the plaitiff; if otherwife, then for the de-
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o If the judge hath adjourned the court to his own lodgings, and there receives the verdict, it is a public and not a privy verdict.
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fendant. This is entered at length on the record, and afterwards argued and determined in the court as Weftminfter, from whence the iffue came to be tried.
ANOTHER method of finding a fpecies of fpecial verdict, is when the jury find a verdict generally for the plaintiff, but fubject neverthelefs to the opinion of the judge or the court above, on a fpecial cafe ftated by the counfel on both fides with regard to a matter of law: which has this advantage over a fpecial verdict, that it is attended with much lefs expenfe, and obtains a much fpeedier decifion; the poftea (of which in the next chapter) being ftayed in the lands of the officer of nifi prius, till the queftion is determined, and the verdict is then entered for the plaintiff or defendant as the cafe may happen. But, as nothing appears upon the record but the general verdict, the parties are precluded hereby from the benefit of a writ of error, if diffatisfied with judgment of the court or judge upon the point of law. Which makes it a thing to be wifhed, that a method could be devifed of either leffening the expenfe of fpecial verdicts, or elfe of entering the cafe at length upon the poftea. But in both thefe inftances the jury may, if they thing proper, take upon themfelves to determine at their own hazard, the complicated queftion of fact and law; and, without either fpecial verdict or fpecial cafe, may find a verdict abfolutely either for the plaintiff or defendant
p.
WHEN the jury have delivered in their verdict, and it is recorded in court, they are then difcharged. And fo ends the trial by jury: a trial, which befides the other vaft advantages which we have occafionally obferved in it's progrefs, is alfo as expeditious and cheap, as it is convenient, equitable, and certain; for a commiffion out of chancery, or the civil law courts, for examining witneffes in one caufe will frequently laft as long, and of courfe be full as expenfive, as the trial of a hundred iffues at nifs prius: and yet the fact cannot be determined by fuch com-
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p Litt. §. 386.
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miffioners
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miffioners at all; no, not till the depofitions are publifhed and read at the hearing of the caufe in court.
UPON thefe accounts the trial by jury even has been, and I truft ever will be, looked upon as the glory of the Englifh law. And, if it has fo great an advantage over others in regulating civil property, how much muft that advantage be heightened, when it is applied to criminal cafes! But this we muft reafer to the enfuing book of thefe commentaries: only obferving for the prefent, that it is the moft tranfcendent privilege which any fubject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his perfon, but by the unanimous confent of twelve of his neighbours and equals. A conftitution, that I may venture to affirm has, under providence, fecured the juft liberties of this nation for a long fucceffion of ages. And therefore a celebrated French writer
q, who concludes, that becaufe Rome, Sparta, and Carthage have loft their liberties, therefore thofe of England in time muft perifh, fhould have recollected that Rome, Sparta, and Carthage, were ftrangers to the trial by jury.
GREAT as this eulogium may feem, it is no more than this admirable conftitution, when traced to it's principles, will be found in fober reafon to deferve. The impartial adminiftration of juftice, which fecures both our perfons and our properties, is the great end of civil fociety. But if that be entirely entrufted to the magiftracy, a felect body of men, and thofe generally felected by the prince or fuch as enjoy the higheft offices in the ftate, their decifions, in fpight of their own natural integrity, will have frequently an involuntary biafs towards thofe of their own rank and dignity: it is not to be expected from human nature, that the few fhould be always attentive to the interefts and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decifions would be wild and capricious, and a new rule of action
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q Montefq. Sp. L. xi. 6.
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would be every day eftablifhed in our courts. It is wifely therefore ordered, that the principles and axioms of law, which are general propofitions, flowing from abftracted reafon, and not accommodated to times or to men, fhould be depofited in the breafts of the judges, to be occafionally applied to fuch facts as come properly afcertained before them. For here partiality can have little fcope: the law is well known, and is the fame for all ranks and degrees; it follows as a regular conclufion from the premifes of fact pre-eftablifhed. But in fettling and adjufting a queftion of fact, when intrufted to any fingle magiftrate, partiality and injuftice have an ample field to range in; either by boldly afferting that to be proved which is not fo, or more artfully by fuppreffing fome circumftances, frretching and warping others, and fuppreffing fome circumftances, ftretching and warping others, and diftinguifhing away the remainder. Here therefore a competent number of fenfible and upright jurymen, chofen by lot from among thofe of the middle rank, will be found the beft inveftigators of truth, and the fureft guardians of public juftice. For the moft powerful individual in the ftate will be cautious of committing any flagrant invafion of another's right, when he knows that the fact of his oppreffion muft be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once that fact is afcertained, the law muft of courfe redrefs it. This therefore preferves in the hands of the people that fhare which they ought to have in the adminiftration of public juftice, and prevents the encroachments of the more powerfula and wealthy citizens. Every new tribunal, erected for the decifion of facts, without the intervention of a jury, (whether compofed of juftices of the peace, commiffioners of the revenue, judges of a court of confcience, or any other standing magiftrates) is a ftep towards eftablifhing ariftocracy, the moft oppreffive of abfolute governments. The feodal fyftem, which, for the fake of military fubordination, purfued an ariftocratical plain in all it's arrangements of property, had been intolerable in times of peace, had it not been wifely counterpoifed by that privilege, fo univerfally diffufed through every part of it, the trial by the feodal peers. And in every
country
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country of the continent, as the trial by the peers has been gradually difufed, fo the nobles have increafed in power, till the ftate has been torn to pieces by rival factions, and oligarchy in effect has been eftablifhed, though under the fhadow or regal government; unlefs where the miferable commons have taken fhelter under abfolute monarchy, as the lighter evil of the two. And, particularly, it is a circumftance well worthy an Englifhman's obfervation, that in Sweden the trial by jury, that bulwark of northern liberty, which continued in it's full vigom fo lately as the middle of laft century
r, is now fallen into difufe
s: and that there, tought the regal power is in no country fo clofely limited, yet the liberties of the commons are extinguifhed, and the government is degenerated into a mere ariftocracy
t. It is therefore, upon the whole, a duty which every man owes to his country, his friends, his pofterity, and himfelf, to maintain to the utmoft of his power this valuable conftitution in all it's rights; to reftore it to it's antient dignity, if at all impaired by the different value of property, or otherwife deviated from it's firft inftitution; to amend it, wherever it is defective; and, above all, to guard with the moft jealous circumfpection againft the introduction of new and arbitrary methods of trial, which, under variety of plaufible pretences, may in time imperceptibly undermine this beft prefervative of Englifh liberty.
YET, after all, it muft be owned, that the beft and moft effectual method to preferve and extend the trial by jury in practice, would be by endeavouring to remove all the defects, as well at to improve the advantages, incident to this mode of enquiry. If juftice is not done to the intire fatisfaction of the people, in this method of deciding facts, in fpite of all encomiums and panegyrics on trials at the common law, they will refort in fearch of that juftice to another tribunal; though more dilatory, though more expenfive, though more arbitrary in it's frame and confti-
.{FS}
r 2 Whitelocke of parl. 427.
s Mod. Un. Hift. xxxiii. 22.
t Ibid. 17.
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tution.
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tution. If juftice is not done to the crown by the verdict of a jury, the neceffities of the public revenue will call for the erection of fummary tribunals. The principal defects feem to be,
1. THE want of a complete difcovery by the ??? of the parties. This each of them is now intitled to have, by going through the expenfe and circuity of a court of equity, and therefore it is fometimes had by confent, even in the courts of law. How far fuch a mode of compulfive examination is agreeable to the rights of mankind, and ought to be introduced in any country, may be a matter of curious difcuffion, but is foreign to out prefent enquiries. It has long been introduced and eftablifhed in our courts of equity, not to mention the civil law courts; and it feems the height of judicial abfurdity, that in the fame caufe, between the fame parties, in the examination of the fame facts, a difcovery by the oath of the partie sfhould be permitted on one fide of Weftminfter-hall, and denied on the other: or that the judges of one and the fame court fhould be bound by law to reject fuch a fpecies of evidence, if attempted on a trial at bar; but, when fitting the next day as a court of equity, fhould be obliged to hear fuch examination read, and to found their decrees upon it. In fhort, common reafon will tell us, that in the fame country, governed by the fame laws, fuch a mode of enquiry fhould be univerfally admitted, or elfe univerfally rejected.
2. A SECOND defect is a nature fomewhat familiar to the firft: the want of a compulfive power for the production of books and papers belonging to the parties. In the hands of third perfons they can generally be obtained by rule of court, or by adding a claufe of requifition to the writ of fubpoena, which is then called a fubpoena duces tecum. But, in mercantile tranfactions efpecially, the firth of the party's own books is frequently decifive; fuch, for inftance, as the daybook of a trader, where the tranfaction muft be recently entered, as really underftood at the time; though fubfequent events may tempt him to five it a different colour. And as, this evidence may be finally obtained, and
and
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And produced on a trial at law, by the circuitous courfe of filing a bill in equity, the want of an original power for the fame purpofes in the courts of law is liable to the fame obfervations as were made on the preceding article.
3. ANOTHER want is that of powers to examine witneffes abroad, and o receive their depofitions in writing, where the witneffes refide, and efpecially when the caufe of action arifes in a foreign country. To which may be added the power of examining witneffes that are aged, or going abroad, upon interrogatories de bene effe; to be read in evidence if the trial fhould be deferred till after their death or departure, but otherwife to be totally fuppreffed. Both thefe are now very frequently effected by mutual confent, if the parties are open and candid; and they may alfo be done indirectly at any time, through the chanel of a court of equity: but fuch a practice has never yet been directly adopted
u as the rule of a court of law.
4. THE adminiftration of juftice fhould not only be chafte, but (like Caefar's wife) fhould not even be fufpected. A jury coming from the neighbourhood is in fome refpects a great advantage; but is often liable to ftrong objections: efpecially in fmall jurifdictions, as in cities which are counties of themfelves, and fuch where affifes are but feldom holden; or where the queftion in difpute has an extenfive local tendency; where a cry has been raifed and the paffions of the multitude been inflamed; or where one of the parties is popular, and the other a ftranger or obnoxious. It is true that if a whole county is interefted in the queftion to be tried, the trial by the rule of law
w muft be in fome adjoining court: but, as there may be a ftrict intereft fo minite as not to occafion any biafs, fo there may be the ftrongeft biafs, where the whole county cannot be faid to have any pecuniary intereft. In all thefe cafes, to fummon a jury, labouring under local prejudices, is laying a fnare for their confciences: and, though they fhould have virtue and vigour of mind fuffi-
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u See pag. 75.
W Stra. 1777.
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cient
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cient to keep them upright, the parties will grow fufpicious, and refort under various pretences to another mode of trial. The courts of law will therefore in tranfitory actions very often change the venue, or county wherein the caufe is to be tried
x: but in local actions, though they fometimes do it indirectly and my mutual confent, yet to effect it directly had abfolutely, the parties are driven to the delay and expenfe of a court of equity; where, upon making out a proper cafe, it is done upon the ground of being neceffary to a fair, impartial, and fatisfactory trial
y.
THE locality of trial required by the common law feems a confequence of the antient locality of jurifdiction. All over the world, actions tranfitory follow the perfon of the defendant, territorial fuits muft be difcuffed in the territorial tribunal. I may fue a Frenchman here for a debt contracted abroad; but lands lying in France muft be fued for there, and Englifh lands muft be fued for in the kingdom of England. Formerly they were ufually demanded only in the court-baron of the manor, where the fteward could fummon of jurors but fuch as were the tenants of the lord. When the caufe was removed to the hundred court, (as feems to have been the courfe in the Saxon times
z) the lord of the hundred had a farther power to convoke the inhabitants of different vills to form a jury; obferving probably always to intermix among them a ftated number of tenants of that manor wherein the difpute arofe. When afterwards it came to the county court, the great tribunal of Saxon juftice, the fheriff had wider authority, and could impanel a jury from the men of his county at large: but was obliged (as a mark of the original locality of the caufe) to return a competent number of hundredors; omitting the inferior diftinction, if indeed it ever exifted. And when at length, after the conqueft, the king's jufticiars drew the cognizance of the caufe from the county court, though
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x See pag. 294.
y This, among a number of other inftances, was the cafe of the iffues directed by the houfe of lords in the caufe between the duke of Devonfhire and the miners of the county of Derby, A. D. 1762.
z LL. Edw. Conf. c. 32. Wilk. 203.
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they
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they could have fummoned a jury from any part of the kingdom, yet they chofe to take the caufe as they found it, with all it's local appendages; triable by a ftated number of hundredors, mixed with other freeholders of the county. The reftriction as to hundredors hath grandually worn away, and at length intirely vanifhed
a; that of counties ftill remains, for many beneficial purpofes: but, as the king's courts have a jurifdiction co-extenfive with the kingdom, there furely can be no impropriety in departing from the general rule, when the great ends of juftice warrant and require an exception.
I HAVE ventured to mark thefe defects, that the juft panegyric, which I have given on the trial by jury, might appear to be the refult of fober reflection, and nor of enthufiafm or prejudice. But fhould they, after all, continue unremedied and unfupplieed, ftill (with all it's imperfections) I truft that this mode of decifon will be found the beft criterion, for inveftigating the truth of facts, that was ever eftablifhed in any country.
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a See pag. 360.
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