The Online Library of Liberty

A project of Liberty Fund, Inc.

• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

CHAPTER XXIII.

OF THE TRIAL BY JURY.

**349]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(a) 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.(b) In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention.(c) Stiernhook(d) 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 juridical polity, to the superior genius of Alfred the Great; to whom, on account of his having done much, it is usual to attribute every thing; and as the tradition of antient Greece placed to the account of their own Hercules whatever achievement 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.1 Its 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 battle, 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:(e) “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.

But I will not misspend the reader’s time in fruitless encomiums on this method of trial; but shall proceed to the dissection and examination of it in all its parts, from whence indeed its highest encomium will arise; since, the more it is searched into and understood, the more it is sure to be valued. And this is a species of knowledge most absolutely necessary for every gentleman in the kingdom: as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects, as because his own property, his liberty, and his life, depend upon maintaining, in its legal force, the constitutional trial by jury.

*[*351Trials by jury in civil causes are of two kinds; extraordinary and ordinary. The extraordinary I shall only briefly hint at, and confine the main of my observations to that which is more usual and ordinary.

The first species of extraordinary trial by jury is that of the grand assize, which was instituted by king Henry the Second 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, instead of the barbarous and unchristian custom of duelling. For this purpose a writ de magna assisa eligenda is directed to the sheriff,(f) to return four knights, who are to elect and choose twelve others to be joined with them, in the manner mentioned by Glanvil;(g) who, having probably advised the measure itself, is more than usually copious in describing it; and these, all together, form the grand assize, or great jury, which is to try the matter of right, and must now consist of sixteen jurors.(h)2

Another species of extraordinary juries is the jury to try an attaint; which is a process commenced against a former jury, for bringing in a false verdict; of which we shall speak more largely in a subsequent chapter. At present I shall only observe, that this jury is to consist of twenty-four of the best men in the county, who are called the grand jury in the attaint, to distinguish them from the first or petit jury; and these are to hear and try the goodness of the former verdict.3

With regard to the ordinary trial by jury in civil cases, I shall pursue the same method in considering it, that I set out with in explaining the nature of prosecuting actions in general, viz., by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.

*[*352When therefore an issue is joined, by these words, “and this the said A. prays may be inquired of by the country,” or, “and of this he puts himself upon the country,—and the said B. does the like,” the court awards a writ of venire facias upon the roll or record, commanding the sheriff “that he cause to come here, on such 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 aforesaid A. nor the aforesaid B., to recognise the truth of the issue between the said parties.”(i) And such writ was accordingly issued to the sheriff.

Thus the cause stands ready for a trial at the bar of the court itself; for all trials were there antiently had, in actions which were there first commenced; which then never happened but in matters of weight and consequence, all trifling suits being ended in the court-baron, hundred, or county courts: and indeed all causes of great importance or difficulty are still usually retained upon motion, to be tried at the bar in the superior courts. But when the usage began to bring actions of any trifling value in the courts of Westminster hall, it was found to be an intolerable burden to compel the parties, witnesses, and jurors to come from Westmoreland perhaps or Cornwall, to try an action of assault at Westminster. A practice therefore very early obtained, of continuing the cause from term to term, in the court above, provided the justices in eyre did not previously come into the county where the cause of action arose;(j) and if it happened that they arrived there within that interval, then the cause was removed from the jurisdiction of the justices at Westminster to that of the justices in eyre. Afterwards, when the justices in eyre were superseded by the modern justices of assize, (who came twice or thrice in the year into the several counties, ad capiendas assisas, to take or try writs of assize, of mort d’ancestor, novel disseisin, nuisance, **353]and the like,) a power was superadded by statute Westm. 2, 13 Edw. I. c. 30, to these justices of assize to try common issues in trespass, and other less important suits, with direction to return them (when tried) into the court above, where alone the judgment should be given. And as only the trial, and not the determination, of the cause, was now intended to be had in the court below, therefore the clause, of nisi prius was left out of the conditional continuances before mentioned, and was directed by the statute to be inserted in the writs of venire facias; that is, “that the sheriff should cause the jurors to come to Westminster (or wherever the king’s court should be held) on such a day in Easter and Michaelmas Terms; nisi prius, unless before that day the justices assigned to take assizes shall come into his said county.” By virtue of which the sheriff returned his jurors to the court of the justices of assize, which was sure to be held in the vacation before Easter and Michaelmas Terms; and there the trial was had.

An inconvenience attended this provision: principally because, as the sheriff made no return of the jury to the court at Westminster, 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 reason, by the statute 42 Edw. III. c. 11, the method of trials by nisi prius was altered; and it was enacted that no inquests (except of assize and gaol-delivery) should be taken by writ of nisi prius, till after the sheriff had returned the names of the jurors to the court above. So that now in almost every civil cause the clause of nisi prius is left out of the writ of venire facias, which is the sheriff’s warrant to warn the jury; and is inserted in another part of the proceedings, as we shall see presently.

For now the course is, to make the sheriff’s venire returnable on the last return of the same term wherein issue is joined, viz., Hilary or Trinity Terms; which, from the making up of the issues therein, are usually called issuable terms. And he returns the names of the jurors in a panel (a little pane, or oblong piece of parchment) annexed to the writ. This jury **354]is not summoned, and therefore, not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum, and in the king’s bench a distringas, commanding the sheriff to have their bodies or to distrain 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 respited, through defect of the jurors, till the first day of the next term, then to appear at Westminster; unless before that time, viz., on Wednesday the fourth of March, the justices of our lord the king, appointed to take assizes in that county, shall have come to Oxford, that is, to the place assigned for holding the assizes.” And thereupon the writ commands the sheriff to have their bodies at Westminster on the said first day of next term, or before the said justices of assize, if before that time they come to Oxford; viz., on the fourth of March aforesaid. And, as the judges are sure to come and open the circuit commissions on the day mentioned in the writ, the sheriff returns and summons the jury to appear at the assizes, and there the trial is had before the justices of assize and nisi prius: among whom (as hath been said)(l) are usually two of the judges of the courts of Westminster, the whole kingdom being divided into six4 circuits for this purpose.5 And thus we may observe that the trial of common issues, at nisi prius, which was in its original only a collateral incident to the original business of the justices of assize, is now, by the various revolutions of practice, become their principal civil employment: hardly any thing remaining in use of the real assizes but the name.

If the sheriff be not an indifferent person; as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury, but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff, to execute process when he is deemed an improper person. If any exception lies to the coroners, the venire shall be directed to two clerks of the court, or two persons of the county *[*355named by the court, and sworn.(m) And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array.

Let us now pause a while, and observe (with Sir Matthew Hale)(n) in these first preparatory stages of the trial, how admirably this constitution is adapted and framed for the investigation of truth beyond any other method of trial in the world. For, first, the person returning the jurors is a man of some fortune and consequence; that so he may be not only the less tempted to commit wilful errors, but likewise be responsible for the faults of either himself or his officers: and he is also 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 summoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their sufficiency or insufficiency, characters, connections, and relations, that so they may be challenged upon just cause; while at the same time by means of the compulsory process (of distringas, or habeas corpora) the cause is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance: which in causes of weight and consequence is at the bar of the court, but in ordinary cases at the assizes, held in the county where the cause of action arises, and the witnesses and jurors live: a provision most excellently calculated for the saving of expense to the parties. For though the preparation of the causes in point of pleading is transacted at Westminster, whereby the order and uniformity of proceeding is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one attorney being able to transact the business of forty clients. But the troublesome and most expensive attendance is that of jurors and witnesses at the trial; which therefore is brought home to them, in the country, where most of them inhabit. Fourthly, the persons before *[*356whom they are to appear, and before whom the trial is to be held, are the judges of the superior court, if it be a trial at bar; or the judges of assize, delegated from the courts at Westminster by the king, if the trial be held in the country: persons whose learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no small influence upon the multitude. The very point of their being strangers in the county is of infinite service, in preventing those factions and parties, which would intrude in every cause of moment, were it tried only before persons resident on the spot, as justices of the peace, and the like. And, the better to remove all suspicion of partiality, it was wisely provided by the statutes 4 Edw. III. c. 2, 8 Ric. II. c. 2, and 32 Hen. VIII. c. 24, that no judge of assize should hold pleas in any county wherein he was born or inhabits. And, as this constitution prevents party and faction from intermingling in the trial of right, so it keeps both the rule and the administration of the laws uniform. These justices, though thus varied and shifted at every assizes, are all sworn to the same laws, have had the same education, have pursued the same studies, converse and consult together, communicate their decisions and resolutions, and preside in those 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 administration of justice and conduct of trials are consonant and uniform; whereby that confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment.6 But let us now return to the assizes.

When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assizes and enter it with the proper officer in order to its being called on in course. If it be not so entered, it cannot be tried; therefore it is in the plaintiff’s breast to delay any trial by not carrying down the record: unless the defendant, being fearful of such neglect in the plaintiff, and willing to discharge himself from the action, will himself undertake to bring on **357]the trial, giving proper notice to the plaintiff. Which proceeding is called the trial by proviso; by reason of the clause then inserted in the sheriff’s venire, viz., “proviso, provided that if two writs come to your hands, (that is, one from the plaintiff and another from the defendant,) you shall execute only one of them.” But this practice hath begun to be disused since the statute of 14 Geo. II. c. 17, which enacts that if, after issue joined, the cause is not carried down to be tried according to the course of the court, the plaintiff shall be esteemed to be non-suited, and judgment shall be given for the defendant as in case of a non-suit. In case the plaintiff intends to try the cause, 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 distance, then fourteen days’ notice, in order to prevent surprise;7 and if the plaintiff then changes his mind and does not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by the same last-mentioned statute.8 The defendant, however, or plaintiff, may, upon good cause shown to the court above, as upon absence or sickness of a material witness, obtain leave upon motion to defer the trial of the cause to the next assizes.9

But we will now suppose all previous steps to be regularly settled, and the cause to be called on in court. The record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive process, the writ of habeas corpora, or distringas, with the panel of jurors annexed, to the judge’s officer in court. The jurors contained in the panel are either special or common jurors. Special juries were originally introduced in trials at bar when the causes were of too great nicety for the discussion of ordinary freeholders, or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholders’ book: and the officer is to take *[*358indifferently forty-eight of the principal freeholders in the presence of the attorneys on both sides; who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel. By the statute 3 Geo. II. c. 25, either party is entitled, upon motion, to have a special jury struck upon the trial of any issue, as well at the assizes as at bar; he paying the extraordinary expense, unless the judge will certify (in pursuance of the statute 24 Geo. II. c. 18) that the cause required such special jury.

A common jury is one returned by the sheriff according to the direction of the statute 3 Geo. II. c. 25, which appoints that the sheriff or officer shall not return a separate panel for every separate cause, as formerly; but one and the same panel for every cause to be tried at the same assizes, containing not less than forty-eight nor more than seventy-two jurors: and that their names, being written on tickets, shall be put into a box or glass; and when each cause is called, twelve of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused; or unless a previous view of the messuages, lands, or place in question shall have been thought necessary by the court:(o) in which case six 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, shall be appointed by special writ of habeas corpora or distringas to have the matters in question shown to them by two persons named in the writ; and then such of the jury as have had the view, or so many of them as appear, shall be sworn on the inquest previous to any other jurors. These acts are well calculated to restrain any suspicion of partiality in the sheriff, or any tampering with the jurors when returned.10

As the jurors appear, when called, they shall be sworn, unless challenged by either party. Challenges are of two sorts: challenges to the array, and challenges to the polls.

*[*359Challenges to the array are at once an exception to the whole panel, in which the jury are arrayed or set in order by the sheriff in his return; and they may be made upon account of partiality or some default in the sheriff or his under-officer who arrayed the panel. And, generally speaking, the same reasons that before the awarding the venire were sufficient to have directed it to the coroners or elisors will be also sufficient to quash the array when made by a person or officer of whose partiality there is any tolerable ground of suspicion. Also, though there be no personal objection against the sheriff, yet if he arrays the panel at the nomination or under the direction of either party, this is good cause of challenge to the array. Formerly, if a lord of parliament had a cause to be tried, and no knight was returned upon the jury, it was a cause of challenge to the array:(p) but, an unexpected use having been made of this dormant privilege by a spiritual lord,(q) it was abolished by statute 24 Geo. II. c. 18. But still, in an attaint, a knight must be returned on the jury.(r) Also, by the policy of the antient law, the jury was to come de vicineto, from the neighbourhood of the vill or place where the cause of action was laid in the declaration; and therefore some of the jury were obliged to be returned from the hundred in which such vill lay; and, if none were returned, the array might be challenged for defect of hundredors. Thus the Gothic jury, or nembda, was also collected out of every quarter of the country: “binos, trinos, vel etiam senos, ex singulis territorii quadrantibus”(s) For, living in the neighbourhood, they were properly the very country, or pais, to which both parties had appealed, and were supposed to know beforehand the characters of the parties and witnesses, and therefore they better knew what credit to give to the facts alleged in evidence. But this convenience was overbalanced by another very natural and almost unavoidable inconvenience: that jurors coming out of the immediate neighbourhood would be apt **360]to intermix their prejudices and partialities in the trial of right. And this our law was so sensible of that it for a long time has been gradually relinquishing this practice; the number of necessary hundredors in the whole panel, which in the reign of Edward III. were constantly six,(t) being in the time of Fortescue(u) reduced to four. Afterwards, indeed, the statute 35 Hen. VIII. c. 6 restored the antient number of six; but that clause was soon virtually repealed by statute 27 Eliz. c. 6, which required only two. And Sir Edward Coke(v) also gives us such a variety of circumstances whereby the courts permitted this necessary number to be evaded, that it appears they were heartily tired of it. At length, by statute 4 & 5 Anne, c. 6, it was entirely abolished upon all civil actions, except upon penal statutes; and upon those also 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.11 The array, by the antient law, may also be challenged if an alien be party to the suit, and, upon a rule obtained by his motion to the court for a jury de medietate linguæ, such a one be not returned by the sheriff, pursuant to the statute 28 Edw. III. c. 13, enforced by 8 Hen. VI. c. 29, which enact, that where either party is an alien born, the jury shall be one half denizens and the other aliens, (if so many be forthcoming in the place,) for the more impartial trial; a privilege indulged to strangers in no other country in the world, but which is as antient with us as the time of king Ethelred, in whose statute de monticolis Walliæ, (then aliens to the crown of England,) cap. 3, it is ordained that “duodeni legales homines, quorum sex Walli et sex Angli erunt, Anglis et Wallis jus dicunto.” But where both parties are aliens, no partiality is to be presumed to one more than another; and therefore it was resolved soon after the statute 8 Hen. VI.(w) that where the issue is joined between two aliens (unless the plea be had before the mayor of the staple, and thereby subject to the restrictions of statute 27 Edw. III. st. 2, c. 8) the jury shall all be denizens. And it now might be a question how far the **361]statute 3 Geo. II. c. 25 (before referred to) hath in civil causes undesignedly abridged this privilege of foreigners by the positive directions therein given concerning the manner of impanelling jurors, and the persons to be returned in such panel. So that (unless this statute is to be construed by the same equity which the statute 8 Hen. VI. c. 29 declared to be the rule of interpreting the statute 2 Hen. V. st. 2, c. 3 concerning the landed qualifications of jurors in suits to which aliens were parties) a court might perhaps hesitate whether it has now a power to direct a panel to be returned de medietate linguæ, and thereby alter the method prescribed for striking a special jury or balloting for common jurors.12

Challenges to the polls, in capita, are exceptions to particular jurors, and seem to answer the recusatio judicis in the civil and canon laws; by the constitutions of which a judge might be refused upon any suspicion of partiality.(x) By the laws of England also, in the times of Bracton(y) and Fleta,(z) a judge might be refused for good cause; but now the law is otherwise, and it is held that judges and justices cannot be challenged.(a) For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such misbehaviour would draw down a heavy censure from those to whom the judge is accountable for his conduct.

But challenges to the polls of the jury (who are judges of fact) are reduced to four heads by Sir Edward Coke:(b)propter honoris respectum; propter defectum; propter affectum; and propter delictum.

1. Propter honoris respectum; as, if a lord of parliament be impanelled on a jury, he may be challenged by either party, or he may challenge himself.

*[*3622. Propter defectum; as if a juryman be an alien born, this is defect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be liber et legalis homo. Under the word homo also, though a name common to both sexes, the female is however excluded, propter defectum sexus; except when a widow feigns herself with child, in order to exclude the next heir, and a supposititious birth is suspected to be intended; then upon the writ de ventre inspiciendo, a jury of women is to be impanelled to try the question whether with child or not.(c) But the principal deficiency is defect of estate sufficient to qualify him to be a juror. This depends upon a variety of statutes. And, first, by the statute of Westm. 2, 13 Edw. I. c. 38, none shall pass on juries in assizes within the county, but such as may dispend 20s. by the year at the least; which is increased to 40s. by the statutes 21 Edw. I. st. 1, and 2 Hen. V. st. 2, c. 3. This was doubled by the statute 27 Eliz. c. 6, which requires in every such case the jurors to have estate of freehold to the yearly value of 4l. at the least. But, the value of money at that time decreasing very considerably, this qualification was raised by the statute 16 & 17 Car. II. c. 3 to 20l. per annum, which being only a temporary act, for three years, was suffered to expire without renewal, to the great debasement of juries. However, by the statute 4 & 5 W. & M. c. 24, it was again raised to 10l. per annum in England and 6l. in Wales, of freehold lands or copyhold; which is the first time that copyholders (as such) were admitted to serve upon juries in any of the king’s courts, though they had before been admitted to serve in some of the sheriff’s courts, by statutes 1 Ric. III. c. 4, and 9 Hen. VII. c. 13. And, lastly, by statute 3 Geo. II. c. 25, any leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of 20l. per annum over and above the rent reserved, is qualified to serve upon juries.13 When the jury is de medietate linguæ, that is, one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall be **363]cause of challenge to the alien; for, as he is incapable to hold any, this would totally defeat the privilege.(d)

3. Jurors may be challenged propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is such where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favour: as, that a juror is of kin to either party within the ninth degree;(e) that he has been arbitrator on either side; that he has an interest in the cause; 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 same cause; that he is the party’s master, servant, counsellor, steward, or attorney, or of the same society or corporation with him; all these are principal causes of challenge, which, if true, cannot be overruled, for jurors must be omni exceptione majores. Challenges to the favour are where the party hath no principal challenge, but objects only some probable circumstances of suspicion, as acquaintance and the like;(f) the validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favourable or unfavourable. The triors, in case the first man called be challenged, are two indifferent persons named by the court; and if they try one man and find him indifferent, he shall be sworn; and then he and the two triors shall try the next; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest.(g)14

4. Challenges propter delictum are for some crime or misdemeanour that affects the juror’s credit and renders him infamous. As for a conviction of treason, felony, perjury, or conspiracy; or if for some infamous offence he hath received judgment of the pillory, tumbrel, or the like; or to be branded, **364]whipt, or stigmatized; or if he be outlawed or excommunicated, or hath been attained of false verdict, præmunire, or forgery; or lastly, if he hath proved recreant when champion in the trial by battle, and thereby hath lost his liberam legem. A juror may himself be examined on oath of voir dire, veritatem dicere, with regard to such causes of challenge as are not to his dishonour or discredit; but not with regard to any crime, or any thing which tends to his disgrace or disadvantage.(h)

Besides these challenges, which are exceptions against the fitness of jurors, and whereby they may be excluded from serving, there are also other causes to be made use of by the jurors themselves, which are matter of exemption; whereby their service is excused, and not excluded. As by statute Westm. 2, 13 Edw. 1. c. 38, sick and decrepit persons, persons not commorant in the county, and men above seventy years old; and by the statute 7 & 8 W. III. c. 32, infants under twenty-one. This exemption is also extended, by divers statutes, customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impanelled, must show their special exemption. Clergymen are also usually excused, out of favour and respect to their function: but, if they are seised of lands and tenements, they are in strictness liable to be impanelled in respect of their lay-fees, unless they be in the service of the king or of some bishop: “in obsequio domini regis, vel alicujus episcopi.”(i)15

If by means of challenges, or other cause, a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A tales is a supply of such men as are summoned upon the first panel, in order to make up the deficiency. For this purpose, a writ of decem tales, octo tales, and the like, was used to be issued to the sheriff at common law, and must be still so done at a trial at bar, if the jurors make default. But at the assizes or nisi prius, by virtue of the statute 35 Hen. VIII. c. 6, and other subsequent *[*365statutes, the judge is empowered at the prayer of either party to award a tales de circumstantibus,(j) of persons present in court, to be joined to the other jurors to try the cause; who are liable, however, to the same challenges as the principal jurors. This is usually done, till the legal number of twelve be completed; in which patriarchal and apostolical number Sir Edward Coke(k) hath discovered abundance of mystery.(l)

When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores.

We may here again observe, and observing we cannot but admire, how scrupulously delicate, and how impartially just, the law of England approves itself, in the constitution and frame of a tribunal, thus excellently contrived for the test and investigation of truth; which appears most remarkably, 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In its caution against all partiality and bias, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shown of malice 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 same thing as was practised in the Roman republic, before she lost her liberty: that the select judges should be appointed by the prætor with the mutual consent of the parties. *[*366Or, as Tully(m) expresses it: “neminem voluerunt majores nostri, non modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima, esse judicem: nisi qui inter adversarios convenisset.”

Indeed, these selecti judices bore in many respects a remarkable resemblance to our juries: for they were first returned by the prætor; de decuria senatoria conscribuntur: then their names were drawn by lot, till a certain number was completed; in urnam sortito mittuntur, ut de pluribus necessarius numerus confici posset: then the parties were allowed their challenges; post urnam permittitur accusatori, ac reo, ut ex illo numero rejiciant quos putaverint sibi, aut inimicos, aut ex aliqua re incommodos fore: next they struck what we call a tales; rejectione celebrata, in eorum locum qui rejecti fuerunt subsortiebatur prætor alios, quibus ille judicum legitimus numerus compleretur; lastly, the judges, like our jury, were sworn; his perfectis, jurabant in leges judices, ut obstricti religione judicarent.(n)

The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impanelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue. For the issue is said to lie, and proof is always first required, upon that side which affirms the matter in question: in which our law agrees with the civil;(o) “ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum-negantis probatio nulla sit.” The opening counsel briefly informs them what has been transacted in the court above; the parties, the nature of the action, the declaration, the plea, replication, and other proceedings, and, lastly, upon what point the issue is joined, which is there set down to be determined. Instead of which,(p) formerly the whole record and process of the pleadings was read to **367]them in English by the court, and the matter in issue clearly explained to their capacities. The nature of the case, and the evidence intended to be produced, are next laid before them by counsel also on the same side: and when their evidence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence; and then the party which began is heard by way of reply.

The nature of my present design will not permit me to enter into the numberless niceties and distinctions of what is, or is not, legal evidence to a jury.(q) I shall only therefore select a few of the general heads and leading maxims relative to this point, together with some observations on the manner of giving evidence.

And, first, evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side 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 est factum, and the issue is, whether it be the defendant’s deed or no; he cannot give a release of this bond in evidence: for that does not destroy the bond, and therefore does not prove the issue which he has chosen to rely upon, viz., that the bond has no existence.

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 speech the name of evidence is usually 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’ standing, which prove themselves;16 but, 3. Modern deeds, and 4. Other **368]writings, must be attested and verified by parol evidence of witnesses. And the one general rule that runs through all the doctrine of trials is this,—that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but, if not possible, then the best evidence that can be had shall be allowed.17 For if it be found that there is any better evidence existing than is produced, the very not producing it is a presumption that it would have detected some falsehood that at present is concealed. Thus, in order to prove a lease for years, nothing else shall be admitted but the very deed of lease itself, if in being; but if that be positively proved to be burned or destroyed, (not relying on any loose negative, as that it cannot be found, or the like,) then an attested copy may be produced; or parol evidence be given of its contents. So, no evidence of a discourse with another will be admitted, but the man himself must be produced; yet in some cases (as in proof of any general customs, or matters of common tradition or repute) the courts admit of hearsay evidence, or an account of what persons deceased have declared in their lifetime; but such evidence will not be received of any particular facts.18 So, too, books of account or shop-books are not allowed of themselves to be given in evidence for the owner; but a servant who made the entry may have recourse to them to refresh his memory; and if such servant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence;(r) for as tradesmen are often under a necessity of giving credit without any note or writing, this is therefore, when accompanied with such other collateral proofs of fairness and regularity,(s) the best evidence that can then be produced. However, this dangerous species of evidence is not carried so far in England as abroad;(t) where a man’s own books of accounts, by a distortion of the civil law, (which seems to have meant the same thing as is practised with us,)(u) with the suppletory oath of **369]the merchant, amount at all times to full proof.19 But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long distance of time, the statute 7 Jac. I. c. 12 (the penners of which seem to have imagined that the books themselves were evidence at common law) confines this species of proof to such transactions as have happened within one year before the action brought; unless between merchant and merchant in the usual intercourse of trade. For accounts of so recent a date, if erroneous, may more easily be unravelled and adjusted.20

With regard to parol evidence, or witnesses; it must first be remembered, that there is a process to bring them in by writ of subpœna ad testificandum: which commands them, laying aside all pretences and excuses, to appear at the trial on pain of 100l. to be forfeited to the king; to which the statute 5 Eliz. c. 9, has added a penalty of 20l. to the party aggrieved, and damages equivalent to the loss sustained by want of his evidence. But no witness, unless his reasonable expenses be tendered him, is bound to appear at all; nor, if he appears, is he bound to give evidence till such charges are actually paid him; except he resides within the bills of mortality, and is summoned to give evidence within the same. This compulsory process, to bring in unwilling witnesses, and the additional terrors of an attachment in case of disobedience, are of excellent use in the thorough investigation of truth:21 and, upon the same principle, in the Athenian courts, the witnesses who were summoned to attend the trial had the choice of three things: either to swear to the truth of the fact in question, to deny or abjure it, or else to pay a fine of a thousand drachmas.(v)

All witnesses, of whatever religion or country, that have the use of their reason,22 are to be received and examined, except such as are infamous, or such as are interested in the event of the cause. All others are competent witnesses; though the jury from other circumstances will judge of their credibility.23 **370]Infamous persons are such as may be challenged as jurors propter delictum: and therefore never shall be admitted to give evidence to inform that jury with whom they were too scandalous to associate. Interested witnesses may be examined upon a voir dire, if suspected to be secretly concerned in the event; or their interest may be proved in court. Which last is the only method of supporting an objection to the former class: for no man is to be examined to prove his own infamy.24 And no counsel, attorney, or other person, intrusted with the secrets of the cause by the party himself, shall be compelled, or perhaps allowed, to give evidence of such conversation or matters of privacy, as came to his knowledge by virtue of such trust and confidence:(w)25 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 knowledge without being intrusted in the cause.

One witness (if credible) is sufficient evidence to a jury of any single facts, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two, as the civil law universally requires. “Unius responsio testis omnino non. udiatur.”(x) To extricate itself out of which absurdity, the modern practice of the civil-law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to be plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on which no sentence can be founded. To make up therefore the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf, and administer to him what is called the suppletory oath; and, if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one. By this ingenious device satisfying at once the forms of the Roman law, and acknowledging the superior reasonableness of the law of England: which permits one witness to be sufficient where no more are to be had: and, to avoid all temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propria causa.26

**371]Positive proof is always required, where from the nature of the case it appears it might possibly have been had. But next to positive proof, circumstantial evidence or the doctrine of presumptions must take place; for when the fact itself cannot be demonstratively evinced, that which comes nearest to the proof of the fact is the proof of such circumstances which either necessarily, or usually, attend such facts; and these are called presumptions, which are only to be relied upon till the contrary be actually proved. Stabitur præsumptioni donec probetur in contrarium.(y)Violent presumption is many times equal to full proof;(z) for there those circumstances appear, which necessarily attend the fact. As if a landlord sues for rent due at Michaelmas, 1754, and the tenant cannot prove the payment, but produces an acquittance for rent due at a subsequent time, in full of all demands, this is a violent presumption 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 such payment; and it therefore induces so forcible a presumption, that no proof shall be admitted to the contrary.(a)27Probable presumption, arising from such circumstances as usually attend the fact, hath also its due weight: as if, in a suit for rent due in 1754, the tenant proves the payment of the rent due in 1755; this will prevail to exonerate the tenant,(b) unless it be clearly shown that the rent of 1754 was retained for some special reason, or that there was some fraud or mistake; for otherwise it will be presumed to have been paid before that in 1755, as it is most usual to receive first the rents of longest standing. Light, or rash, presumptions have no weight or validity at all.28

*[*372The oath administered to the witness is not only that what he deposes shall be true, but that he shall also depose the whole truth; so 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 presence of the parties, their attorneys, the counsel, and all bystanders, and before the judge and jury; each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country; which must curb any secret bias or partiality that might arise in his own breast. And if, either in his directions or decisions, he mistakes the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions, stating the point in which he is supposed to err; and this he is obliged to seal, by statute Westm. 2, 13 Edw. I. c. 31, or, if he refuse so to do, the party may have a compulsory writ against him,(c) commanding him to seal it, if the fact alleged be truly stated: and if he returns that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return. This bill of exceptions is in the nature of an appeal, examinable, not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below. But a demurrer to evidence shall be determined by the court out of which the record is sent. This happens where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law; in which case the adverse party may if he pleases demur to the whole evidence; which admits the truth of every fact that has been alleged, but denies the sufficiency of them all in point of law to maintain or overthrow the issue;(d) which draws the question of law from the cognizance of the jury to be decided (as it ought) by the court. But neither these demurrers to evidence, nor the bills of exceptions, are at present so much **373]in use as formerly; since the more frequent extension of the discretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nisi prius.29

This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth(e) than the private and secret examination taken down in writing before an officer or his clerk in the ecclesiastical courts and all others that have borrowed their practice from the civil law, where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken. Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge during the examination a matter of small importance; for, besides the respect and awe with which his presence will naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike when their depositions are reduced to writing and read to the judge in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered as from the matter of *[*374it. These are a few of the advantages attending this the English way of giving testimony ore tenus. Which was also, indeed, familiar among the antient Romans, as may be collected from Quintilian,(f) who lays down very good instructions for examining and cross-examining witnesses viva voce. And this, or somewhat like it, was continued as low as the time of Hadrian;(g) but the civil law, as it is now modelled, rejects all public examination of witnesses.

As to such evidence as the jury may have in their own consciences by their private knowledge of facts, it was an antient doctrine that this had as much right to sway their judgment as the written or parol evidence which is delivered in court. And therefore, it hath been often held(h) that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors to find according to their evidence was construed(i) to be, to do it according to the best of their own knowledge. This seems to have arisen from the antient practice of taking recognitions of assize at the first introduction of that remedy; the sheriff being bound to return such recognitors as knew the truth of the fact, and the recognitors when sworn being to retire immediately from the bar, and bring in their verdict according to their own personal knowledge, without hearing extrinsic evidence or receiving any direction from the judge.(j) And the same doctrine (when attaints came to be extended to trials by jury as well as to recognitions of assize) was also applied to the case of common jurors, that they might escape the heavy penalties of the attaint in case they could show by any additional proof that their verdict was agreeable to the truth, though not according to the evidence produced: with which additional proof the law presumed they were privately acquainted, though it did not appear in *[*375court. But this doctine was again gradually exploded, when attaints began to be disused and new trials introduced in their stead. For it is quite incompatible with the grounds upon which such 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 seems to have been first introduced(k) which now universally obtains, that if a juror knows any thing of the matter in issue he may be sworn as a witness and give his evidence publicly in court.

When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence.

The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict; and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For by the golden bull of the empire,(l) if, after the congress is opened, the electors delay the election of a king of the Romans for thirty days, they shall be fed only with bread and water, till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is finable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their agents, after they are gone **376]from the bar; or if they receive any fresh evidence in private; or if to prevent disputes they cast lots for whom they shall find; any of these circumstances 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 imprisoned,(m) the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.(n)30 This necessity of a total unanimity seems to be peculiar to our own constitution;(o) or, at least, in the nembda or jury of the antient Goths, there was required (even in criminal cases) only the consent of the major part; and, in case of an equality, the defendant was held to be acquitted.(p)31

When they are all unanimously agreed, the jury return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement to which by the old law he is liable, as has been formerly mentioned,(q) in case he fails in his suit, as a punishment for his false claim. To be amerced, or à mercie, is to be at the king’s mercy with regard to the fine to be imposed; in misericordia domini regis pro falso clamore suo. The amercement is disused, but the form still continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be non-suit, non sequitur clamorem suum. Therefore it is usual for a plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily non-suited, or withdraw himself: whereupon the crier is ordered to call the plaintiff: and if neither he, nor anybody for him, appears, he is non-suited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason of this practice is, that a non-suit is more eligible for the plaintiff than a verdict against him: for after a non-suit, which is only a default, he may commence the same suit *[*377again for the same cause of action; but after a verdict had, and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. But, in case the plaintiff appears, the jury by their foreman deliver in their verdict.32

A verdict, 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:(r) which privy verdict is of no force unless afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from the 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 seldom indulged.33 But the only effectual and legal verdict is the public verdict: in which they openly declare to have found the issue for the plaintiff, or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff in consequence of the injury upon which the action is brought.

Sometimes, if there arises in the case any difficult matter of law, the jury, for the sake of better information, and to avoid the danger of having their verdict attainted, will find a special verdict; which is grounded on the statute of Westm. 2, 13 Edw. I. c. 30, § 2. And herein they state 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 should be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then for the defendant. This is entered at length on the record and afterwards argued and determined in the court at Westminster, from whence the issue came to be tried.

*[*378Another method of finding a species of special verdict is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge or the court above, on a special case stated by the counsel on both sides with regard to a matter of law; which has this advantage over a special verdict, that it is attended with much less expense, and obtains a much speedier decision; the postea (of which in the next chapter) being stayed in the hands of the officer of nisi prius, till the question is determined, and the verdict is then entered for the plaintiff or defendant, as the case 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 dissatisfied with the judgment of the court, or judge, upon the point of law. Which makes it a thing to be wished, that a method could be devised of either lessening the expense of special verdicts, or else of entering the cause at length upon the postea. But in both these instances the jury may, if they think proper, take upon themselves to determine, at their own hazard, the complicated question of fact and law, and, without either special verdict or special case, may find a verdict absolutely either for the plaintiff or defendant.(s)

When the jury have delivered in their verdict, and it is recorded in court, they are then discharged. And so ends the trial by jury: a trial which, besides the other vast advantages which we have occasionally observed in its progress, is also as expeditious and cheap, as it is convenient, equitable, and certain; for a commission out of chancery, or the civil-law courts, for examining witnesses in one cause will frequently last as long, and of course be full as expensive, as the trial of a hundred issues at nisi prius: and yet the fact cannot be determined by such commissioners at all; no, not till the depositions are published, and read at the hearing of the cause in court.

**379]Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! But this we must refer to the ensuing book of these commentaries: only observing for the present, that it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages. And therefore a celebrated French writer,(t) who concludes that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury.

Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince, or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity; it is not to be expected from human nature, that the few should be always attentive to the interests 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 decisions would be wild and capricious, and a new rule of action would be every day established in our courts. It is wisely therefore ordered, that the principles and axioms of law, which are general propositions, flowing from abstracted reason, and not **380]accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope: the law is well known, and is the same for all ranks and degrees; it follows as a regular conclusion from the premises of fact pre-established. But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another’s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates,) is a step towards establishing aristocracy, the most oppressive of absolute governments. The feodal system, which, for the sake of military subordination, pursued an aristocratical plan in all its arrangements of property, had been intolerable in times of peace, had it not been wisely counterpoised by that privilege, so universally diffused through every part of it, the trial by the feodal peers. And in every country on the continent, as the trial by the peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and oligarchy in effect has been established, though under the shadow of regal government; *[*381unless where the miserable commons have taken shelter under absolute monarchy, as the lighter evil of the two. And, particularly, it is a circumstance well worthy an Englishman’s observation, that in Sweden the trial by jury, that bulwark of northern liberty, which continued in its full vigour so lately as the middle of the last century,(u) is now fallen into disuse:(w) and that there, though the regal power is in no country so closely limited, yet the liberties of the commons are extinguished, and the government is degenerated into a mere aristocracy.(x) It is therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain to the utmost of his power this valuable constitution in all its rights; to restore it to its antient dignity, if at all impaired by the different value of property, or otherwise deviated from its first institution; to amend it, wherever it is defective; and, above all, to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine this best preservative of English liberty.

Yet, after all, it must be owned, that the best and most effectual method to preserve and extend the trial by jury in practice, would be by endeavouring to remove all the defects, as well as to improve the advantages, incident to this mode of inquiry. If justice is not done to the entire satisfaction of the people in this method of deciding facts, in spite of all encomiums and panegyrics on trials at the common law, they will resort in search of that justice to another tribunal; though more dilatory, though more expensive, though more arbitrary in its frame and constitution. If justice is not done to the crown by the verdict of a jury, the necessities of the public revenue will call for the erection of summary tribunals. The principal defects seem to be,—

1. The want of a complete discovery by the oath of the parties. This each of them is now entitled to have, by *[*382going through the expense and circuity of a court of equity; and therefore it is sometimes had by consent, even in the courts of law. How far such a mode of compulsive examination is agreeable to the rights of mankind, and ought to be introduced in any country, may be matter of curious discussion, but is foreign to our present inquiries. It has long been introduced and established in our courts of equity, not to mention the civil-law courts; and it seems the height of judicial absurdity, that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster hall, and denied on the other; or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it. In short, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted, or else universally rejected.34

2. A second defect is of a nature somewhat similar to the first: the want of a compulsive power for the production of books and papers belonging to the parties. In the hands of third persons they can generally be obtained by rule of court, or by adding a clause of requisition to the writ of subpœna, which is then called a subpœna duces tecum. But, in mercantile transactions especially, the sight of the party’s own books is frequently decisive; as the day-book of a trader, where the transaction was recently entered, as really understood at the time; though subsequent events may tempt him to give it a different colour. And, as this evidence may be finally obtained, and produced on a trial at law, by the circuitous course of filing a bill in equity, the want of an original power for the same purposes in the courts of law is liable to the same observations as were made on the preceding article.35

3. **383]Another want is that of powers to examine witnesses abroad, and to receive their depositions in writing, where the witnesses reside, and especially when the cause of action arises, in a foreign country.36 To which may be added the power of examining witnesses that are aged, or going abroad, upon interrogatories de bene esse; to be read in evidence if the trial should be deferred till after their death or departure, but otherwise to be totally suppressed. Both these are now very frequently effected by mutual consent, if the parties are open and candid; and they may also be done indirectly at any time, through the channel of a court of equity; but such a practice has never yet been directly adopted(y) as the rule of a court of law.37 Yet where the cause of action arises in India, and a suit is brought thereupon in any of the king’s courts at Westminster, the court may issue a commission to examine witnesses upon the spot and transmit the depositions to England.(z)

4. The administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neighbourhood has in some respects a great advantage, but is often liable to strong objections; especially in small jurisdictions, as in cities which are counties of themselves, and where such assizes are but seldom holden; or where the question in dispute has an extensive local tendency; where a cry has been raised, and the passions of the multitude been inflamed; or where one of the parties is popular, and the other a stranger or obnoxious. It is true that, if a whole county is interested in the question to be tried, the trial by the rule of law(a) must be in some adjoining county; but, as there may be a strict interest so minute as not to occasion any bias, so there may be the strongest bias without any pecuniary interest. In all these cases, to summon a jury, labouring under local prejudices, is laying a snare for their consciences; and, though they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and resort under various pretences to another mode of trial. The courts of law will therefore, in transitory actions, very often change the venue, or county wherein the cause is to be *[*384tried:(b) but in local actions, though they sometimes do it indirectly and by mutual consent, yet to effect it directly and absolutely, the parties are driven to a court of equity; where, upon making out a proper case, it is done upon the ground of being necessary to a fair, impartial, and satisfactory trial.(c)38

The locality of trial required by the common law seems a consequence of the antient locality of jurisdiction. All over the world, actions transitory follow the person of the defendant, territorial suits must be discussed in the territorial tribunal. I may sue a Frenchman here for a debt contracted abroad; but lands lying in France must be sued for there, and English lands must be sued for in the kingdom of England. Formerly they were usually demanded only in the court-baron of the manor, where the steward could summon no jurors but such as were the tenants of the lord. When the cause was removed to the hundred court, (as seems to have been the course in the Saxon times,)(d) the lord of the hundred had a further power, to convoke the inhabitants of different vills to form a jury; observing probably always to intermix among them a stated number of tenants of that manor wherein the dispute arose. When afterwards it came to the county-court, the great tribunal of Saxon justice, the sheriff 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 cause) to return a competent number of hundredors; omitting the inferior distinction, if indeed it ever existed. And when at length, after the conquest, the king’s justiciars drew the cognizance of the cause from the county-court, though they could have summoned a jury from any part of the kingdom, yet they chose to take the cause as they found it, with all its local appendages; triable by a stated number of hundredors, mixed with other freeholders of the county. The restriction as to hundredors hath gradually worn away, and at length entirely vanished;(e) that of *[*385counties still remains, for many beneficial purposes: but, as the king’s courts have a jurisdiction coextensive with the kingdom, there surely can be no impropriety in sometimes departing from the general rule, when the great ends of justice warrant and require an exception.

I have ventured to mark these defects, that the just panegyric, which I have given on the trial by jury, might appear to be the result of sober reflection, and not of enthusiasm or prejudice. But should they, after all, continue unremedied and unsupplied, still (with all its imperfections) I trust that this mode of decision will be found the best criterion, for investigating the truth of facts, that was ever established in any country.

[(a) ]De jure Saxonum, p. 12.

[(b) ] Sp. L. b. 30, c. 18. Capitul. Lud. pii.ad 819, c. 2.

[(c) ] Wilk. LL. Angl. Sax. 117.

[(d) ]De jure Sueonum, l. 1, c. 4.

[1 ] The Athenians, according to Sir Wm. Jones, had trials by jury. Sir Wm. Jones on Bailment, 74.—Chitty.

[(e) ]LL. Longob. l. 3, t. 8, l. 4.

[(f) ] F. N. B. 4.

[(g) ]L. 2, c. 11, 12.

[(h) ] Finch, L. 412. 1 Leon. 303.

[2 ] It seems not to be ascertained that any specific number above twelve is absolutely necessary to constitute the grand assize; but it is the usual course to swear upon it the four knights and twelve others. Viner, Trial, Xe.

See the proceedings upon a writ of right before the sixteen recognitors of the grand assize, in 3 Wils. 541.—Chitty.

As the writ of right has been abolished, this mode of trial can no longer be resorted to.—Stewart.

[3 ] But, by stat. 6 Geo. IV. c. 50, s. 60, this kind of trial by jury is abolished, and a juror for such an offence may be proceeded against by way of indictment or information.—Stewart.

[(i) ] Append. No. III. 4.

[(j) ]Semper dabitur dies partibus ab justiciariis de banco, sub tali conditione, “nisi justiciarii itinerantes prius venerint ad partes illas.” Bract. l. 3, tr. 1, c. 11, 8.

[(k) ] Append. No. II. 4.

[(l) ] See page 59.

[4 ] Now seven.—Stewart.

[5 ] These several writs, generally called the “Jury Process,” are now, however, abolished, and the jurors are summoned by the sheriff for the commission-day, in virtue of a precept issued to him for that purpose by the judges of assize, a panel of the jurors so summoned being made and kept in the sheriff’s office for inspection seven days before the commission-day, and a copy of it annexed to the record. Com. Law Proc. Act, 1852, B. 105-109.—Stewart.

[(m) ] Fortesc. de Laud. LL. c. 25. Co. Litt. 158.

[(n) ] Hist. C. L. c. 12.

[6 ] On the 22d of June, 1825, the 6 Geo. IV. c. 50 was passed for consolidating and amending the laws relative to jurors and juries, and came into complete operation the 1st of January, 1826.—Chitty.

Besides the trial at bar and that at nisi prius, there is another mode of trial by jury, which is given by stat. 3 & 4 W. IV. c. 42, s. 17, and is applicable only to causes where the debt or demand does not exceed 20l. In such cases, if the court or one of the judges be satisfied that the trial will involve no difficult question of law or fact, they will make a rule or order that the issue be tried by the sheriff of the county where the action is brought, or any judge of a court of record for the recovery of debts in such county. In pursuance of the rule or order, a writ of trial is directed to such judge or sheriff, commanding him to try the issue and return the proceedings to the court, that judgment may be given accordingly.—Stewart.

[7 ] This practice is confined to causes tried in London and Middlesex. Tidd, 8th ed. 814. In all causes tried at an assizes, ten days’ notice suffice. Tidd, 8th ed. 815.—Chitty.

[8 ] At the sittings in London or Westminster, when defendant resides within forty miles from London, two days’ notice of countermand before it is to be tried is sufficient. Tidd, 8th ed. 81, n.—Christian.

[9 ] Where there have been no proceedings within four terms, a full term’s notice of trial must be given previous to the assizes or sittings, unless the cause has been delayed by the defendant himself, by an injunction or other means. 2 Bla. Rep. 784. 3 T. R. 530. If the defendant proceeds to trial by proviso, he must give the same notice as would have been required from the plaintiff. 1 Cromp. Prac. 219. Sometimes the courts impose it as a condition upon the defendant that he shall accept short notice of trial, which in country causes shall be given at the least four days before the commission-day,—one day being exclusive, and the other inclusive. 3 T. R. 600. But in town causes, two days’ notice seems to be sufficient in such a case. Tidd, 250.—Christian.

This statute, so far as it relates to judgment, as in case of a non-suit, is repealed by the Common-Law Procedure Act, 1852, which, however, enables a defendant, after the plaintiff has neglected to bring on the cause for trial within a certain period after issue has been joined, to give the plaintiff twenty days’ notice to bring the cause on for trial at the next sittings or assizes. If the plaintiff again neglects to try the cause, the defendant may obtain judgment for his costs of suit. In case the plaintiff intends to try the cause, he is bound to give the defendant ten days’ notice of trial, in order to prevent surprise, and if the plaintiff then changes his mind and does not countermand the notice four days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by the same last-mentioned statute. The defendant, however, or plaintiff, may, upon good cause shown to the court above, as upon absence or sickness of a material witness, obtain leave, upon motion, to defer the trial of the cause till the next assizes.—Stewart.

[(o) ] Stat. 4 Anne, c. 16.

[10 ] The qualification of both common and special jurymen is now regulated by stat. [Editor: illegible character] Geo. IV. c. 50, by which all other acts are repealed.—Stewart.

[(p) ] Co. Litt. 156. Seld. on Barouage, ii. 11.

[(q) ] K. vs. Bishop of Worcester, M. 28 Geo. II. B. R.

[(r) ] Co. Litt. 156.

[(s) ] Stiernhook de jure Goth. l. 1, c. 4.

[(t) ] Gilb. Hist. C. P. c. 8.

[(u) ]De Laud. LL. c. 25.

[(v) ] 1 Inst. 157.

[11 ] See an excellent note, Co. Litt. 125, a. b., n. (2.)—Chitty.

[(w) ] Year-book, 21 Hen. VI. 4.

[12 ] From the enactments of the statute 6 Geo. IV. c. 50, and especially section 47 thereof, it would seem that a jury de medietate linguæ is now allowed only upon trials for felony or misdemeanour.—Kerr.

[(x) ] Cod. 3, 1, 16. Decretal. l. 2, t. 28, c. 36.

[(y) ]L. 5, c. 15.

[(z) ]L. 6, c. 37.

[(a) ] Co. Litt. 294.

[(b) ] 1 Inst. 156.

[(c) ] Cro. Eliz. 566.

[13 ] A juror must be twenty-one years; and, if above sixty, he is exempted, though not disqualified, from serving. He must also possess freehold or copyhold property of the clear yearly value of ten pounds, or have leasehold property, held by lease for twenty-one years or longer, of the annual value of twenty pounds, or occupy a house containing not less than fifteen windows. In London, the occupation of a house, shop, or place of business within the city, or the possession of real or personal property of the value of 100l., constitutes a qualification. 6 & 7 Geo. IV. c. 50.—Kerr.

[(d) ] See stat. 2 Hen. V. st. 2, c. 3. 8 Hen. VI. c. 29.

[(e) ] Finch, L. 401.

[(f) ] In the nembda, or jury of the ancient Goths, three challenges only were allowed to the favour, but the principal challenges were indefinite. “Licebat palam excipere, et semper ex probabili causa tres repudiari: etiam plures ex causa prægnanti et manifesta.” Stiernhook, l. 1, c. 4.

[(g) ] Co. Litt. 153.

[14 ] The question of challenge to the array, and incidentally to the polls and triers, underwent much discussion in The King vs. Edmonds, 4 B. & A. 476; and in that case it was determined that no challenge, either to the array or to the polls, can be taken until a full jury shall have appeared; that the disallowing a challenge is not a ground for a new trial, but for a venire de novo; that every challenge, either to the array or to the polls, ought to be propounded in such a way that it may be put at the time upon the nisi prius record, so that when a challenge is made the adverse party may either demur or counterplead, or he may deny what is alleged for matter of challenge; and it is then only that triers can be appointed. It was also thereby determined that the whole special jury-panel cannot be challenged for the supposed unindifferency of the Master of the Crown Office, he being the officer of the court appointed to nominate the jury. And a material point was also ruled in the same case,—namely, that it is not competent to ask jurymen, whether special or talesmen, whether they have not, previously to the trial, expressed opinions hostile to the defendants and their cause, in order to found a challenge to the polls on that ground; but such expressions must be proved by extrinsic evidence. But see now stat. 6 Geo. IV. c. 50, ss. 27, 89.—Chitty.

[(h) ] Ibid. 158, b.

[(i) ] F. N. B. 166. Reg. Brev. 179.

[15 ] They are now excused, by 6 Geo. IV. c. 50.—Chitty.

[(j) ] Append. No. II. 4.

[(k) ] 1 Inst. 155.

[(l) ] Pausannas relates that at the trial of Mars, for murder, in the court denominated Areopagis from that incident, he was acquitted by a jury composed of twelve pagan deities. And Dr. Hickes, who attributes the introduction of this number to the Normans, tells us that among the inhabitants of Norway, from whom the Normans as well as the Danes were descended, a great veneration was paid to the number twelve: “nihil sanctius, nihil antiquius fuit; perinde ac si in ipso hoc numero secreta quædam esset religio.” Dissert. Epistolar. 49. Spelm. Gloss. 329.

[(m) ]Pro. Cluentio, 43.

[(n) ] Ascon. in Cic. Ver. 1, 6. A learned writer of our own, Dr. Pettingal, hath shown in an elaborate work (published ad 1796) so many resemblances between the δικασται of the Greeks, the judices selecti of the Romans, and the juries of the English, that he is tempted to conclude that the latter are derived from the former.

[(o) ]Ff. 22, 3, 2. Cod. 4, 19, 23.

[(p) ] Fortesc. c. 20.

[(q) ] This is admirably well performed in lord chief-baron Gilbert’s excellent treatise of evidence,—a work which it is impossible to abstract or abridge without losing some beauty and destroying the chain of the whole, and which hath lately been engrafted into a very useful work, The Introduction of the Law of Nisi Prius, 4to. 1767.

[16 ] The same rule applies to wills thirty years old. 4 T. R. 709, note. This rule is laid down in books of evidence without sufficient explanation of its principle, or of the extent of its application. There seems to be danger in permitting a deed to be read merely because it bears date above thirty years before its production, and in requiring no evidence, where a forgery may be committed with the least probability of detection. Chief-Baron Gilbert lays down, that where possession has gone agreeably to the limitations of a deed bearing date thirty years ago, it may be read without any evidence of its execution, though the subscribing witnesses be still living. Law of Ev. 94. For such possession affords so strong a presumption in favour of the authenticity of the deed as to supersede the necessity of any other proof of the validity of its origin, or of its due execution. The court of King’s Bench have determined that the mere production of a parish certificate dated above thirty years ago was sufficient to make it evidence, without giving any account of the custody from which it was extracted. 5 T. R. 259.—Christian.

[17 ] No rule of law is more frequently cited and more generally misconceived than this. It is certainly true when rightly understood; but it is very limited in its extent and application. It signifies nothing more than that, if the best legal evidence cannot possibly be produced, the next best legal evidence shall be admitted. Evidence may be divided into primary and secondary; and the secondary evidence is as accurately defined by the law as the primary. But in general the want of better evidence can never justify the admission of hearsay, interested witnesses, or the copies of copies, &c. Where there are exceptions to general rules, these exceptions are as much recognised by the law as the general rule, and, where boundaries and limits are established by the law for every case that can possibly occur, it is immaterial what we call the rule and what the exception.—Christian.

Some of the numerous cases which are found even in modern books may be cited for illustration and in confirmation of the text and note.

If the subscribing witness be living and within the jurisdiction of the court, he must be called to prove the execution; or if he cannot be found, and that fact be satisfactorily explained, proof of his handwriting will be sufficient evidence of the execution. Barnes vs. Trompowsky, 7 T. R. 266. And the witness of the execution is necessary; acknowledgment of the party who executed the deed cannot be received. Johnson vs. Mason, 1 Esp. 89. At least only as secondary evidence. Call, Bart vs. Dunning, 4 East, 53. And acknowledgment to a subscribing witness by an obligor of a bond that he has executed it is sufficient. Powell vs. Blackett, 9 Esp. 87; and see Grellier vs. Neale, Peake, 146. But a mere bystander may not be received to supply the absence of the subscribing witness, (McCraw vs. Gentry, 3 Camp. 232,) or only as secondary evidence. See the next case. If the apparent attesting witness deny that he saw the execution, secondary evidence is admissible; that is to say, the handwriting of the obligor, &c. may be proved. Ley vs. Ballard, 3 Esp. 173, n. And, as a general rule, it seems that wherever a subscribing witness appears to an instrument, note, &c., he must be called, or his absence explained. See Higgs vs. Dixon, 2 Stark. 180. Breton vs. Cope, Peake, 31.—Chitty.

[18 ] It is a general rule that the mere recital of a fact—that is, the mere oral assertion or written entry by an individual that a particular fact is true—cannot be received in evidence. But the objection does not apply to any public documents made under lawful authority, such as gazettes, proclamations, public surveys, records, and other memorials of a similar description, and whenever the declaration or entry is in itself a fact and is part of the res gestæ. Stark. on Evid. p. 1, 46, 47. But it is to be carefully observed that neither the declarations nor any other acts of those who are mere strangers, or, as it is usually termed, any res inter alios acta, is admissible in evidence against any one, as affording a presumption against him in the way of admission, or otherwise. Ib. 51.—Chitty.

In cases of customs and prescriptive rights, hearsay or traditional evidence is not admitted until some instances of the custom or exercise of the right claimed are first proved. The declarations of parents respecting their marriage, and the legitimacy of their children, are admitted after their decease as evidence. And hearsay is also received respecting pedigrees and the death of relations abroad. Bull. N. P. 294. 2 Esp. 784. What has been said in conversation in the hearing of any party, if not contradicted by him, may be given in evidence; for, not being denied, it amounts to a species of confession. But it can only be received where it must be presumed to have been heard by the party; and therefore in one case the court stopped the witness from repeating a conversation which had passed in a room where the prisoner was, but at the time while she had fainted away. It has been the practice of the quarter-sessions to admit the declarations of paupers respecting their settlements, to be received as evidence after their death, or, if living, where they could not be produced. See 3 T. R. 707, where the judges of the King’s Bench were divided upon the legality of this practice, and where the subject of hearsay evidence is much discussed. For many years, whilst lord Mansfield presided in the court of King’s Bench, the court were unanimously of opinion that the declarations of a pauper respecting his settlement might after his death be proved and given in evidence. When lord Kenyon and another judge were introduced, the court were divided, and the former practice prevailed; but when the court were entirely changed, they determined that this hearsay evidence was not founded on any principles of law, and that the evidence at the quarter-sessions in the cases of settlement ought to be the same as that in all other courts, in the trials which could respectively be brought before them. 2 East, 54, 63. The court of King’s Bench has decided that a father’s declaration of the place of the birth of his son is not evidence after the father’s death. 8 East, 539. But it would not, probably, be difficult to prove that this is of the nature of pedigree, and ought to be admitted, as the father’s declaration of the time of his son’s birth, which has always been legal evidence. In criminal cases, the declarations of a person who relates in extremis, or under an apprehension of dying, the cause of his death, or any other material circumstance, may be admitted in evidence; for the mind in that awful state is presumed to be under as great a religious obligation to disclose the truth as is created by the administration of an oath. But declarations of a deceased person ought not to be received unless the court is satisfied from the circumstances of the case that they were made under the impression of approaching dissolution. Leach’s Cases, 400. But the declarations of a felon at the place of execution cannot be received, as he is incompetent to give evidence upon oath, and the situation of a dying man is only thought equivalent to that of a competent witness when he is sworn. Ibid. 276. By the 1 & 2 Ph. & Mar. c. 13, depositions taken before a justice of peace in cases of felony may be read in evidence at the trial, if the witness dies before the trial. But as the statute confines this to felony, and as it is an innovation upon the common law, it cannot be extended to any misdemeanour. 1 Salk. 281.—Christian.

[(r) ] Law of Nisi Prius, 266.

[(s) ] Salk. 285.

[(t) ] Gail. observat. 2, 20, 23.

[(u) ]Instrumenta domestica, seu adnotatio, si non aliis quoque adminiculis adjuventur, ad probationem sola non sufficiunt. Cod. 4, 19, 5. Nam exemplo perniciosum est, ut ei scripturæ credatur, qua unusquisque sibi adnotatione propria debitorem constituit. Ibid. l. 7.

[19 ] Although in England the shop-book of a tradesman is not evidence without the oath of the clerk who made the entry, yet in the United States, in the early periods of settlement, as business was generally carried on by the principal, and few shop-keepers kept clerks, the book of original entries, proved by the oath of the plaintiff, has, from the necessity of the case, generally, if not universally, been admitted. It has been confined, however, to the case of goods sold and delivered and work and labour done. It is necessary, however, that the book should appear to be the book in which the first entry was made cotemporaneously with the original transaction which it professes to record. It is not necessary, indeed, that it should be in the form of a journal or day-book. Entries in ledger-form have been admitted, or in a pocket memorandum-book. Still, the entry must have been made within a reasonable time after the transaction,—not further than twenty-four, or at most forty-eight, hours. It should not be made until the contract is complete, the work done, the goods delivered, or, at least, so far set aside and distinguished as that the property has passed. Where, however, entries are first made on a slate or a blotter, which is afterwards destroyed and the transfer made in due time to the regular book, it is sufficient. The credibility of such a book may be attacked by any circumstances which would go to show that it is not a regular and reliable record of daily transactions. Poultney et al. vs. Ross, 1 Dall. 239. Curren vs. Crawford, 4 Serg. & Rawle, 5. Ingraham vs. Bockius, 9 Serg. & R. 285. Hartley vs. Brookes, 6 Whart. 189. Patton vs. Ryan, 4 Rawle, 408. Rhoads vs. Gaul, 4 Rawle, 404. Parker vs. Donaldson, 2 Watts & Serg. 20. Coggswell vs. Dolliver, 2 Mass. 217. Case vs. Potter, 8 Johns. 211. Linnell vs. Sutherland, 11 Wend. 568. It would encumber this note to go further in the citation of cases from every State in the Union in support of this species of evidence. Since the parties themselves are now competent witnesses in England, the original entry may evidently be effectually used as a memorandum to refresh the memory.—Sharswood.

[20 ] The entries in the book of a person deceased, not connected with the parties, are of no more avail than hearsay. But the books of an incumbent respecting the tithes of the parish are evidence for his successor. 5 T. R. 123. 2 Ves. 43.—Christian.

[21 ] A copy of the writ, or the substance thereof, (5 Mod. 355. Cro. Car. 540,) should be served personally on each witness and the original shown to him. The usual mode of proceeding against witnesses for disobedience of the writ of subpœna is by the summary process of an attachment for a contempt, (2 Stra. 1054. Cowp. 386. Doug. 561;) but the court will not grant an attachment against a witness unless all the necessary expenses of the journey to and from and the witness’s stay at the place of trial be tendered at the time of serving the subpœna. 1 H. Bl. 49. 1 Meriv. 191. 13 East, 15. Still, the court will not enter into nice calculations of expense, but consider whether the non-attendance originated in obstinacy or not. 2 Stra. 1150. The same rule prevails in the case of witnesses bona fide brought from abroad. 1 Marsh. 563. 4 Taunt. 699. 6 ib. 88. A witness is not in general entitled to remuneration for loss of time, (1 B. & B. 515. 5 M. & S. 156,) though in some instances it is allowed to attorneys and medical practitioners. Ib. 159. The expenses of making scientific experiments with a view to evidence are not allowable. 3 B. & B. 72.—Chitty.

[(v) ] Pott. Antiq. b. i. c. 21.

[22 ] A Mohammedan may be sworn upon the Alcoran, and a Gentoo according to the custom of India; and their evidence may be received even in a criminal case. Leach’s Cases, 52. 1 Atk. 21. But an atheist, or a person who has no belief or notion of a God or a future state of rewards and punishments, ought not in any instance to be admitted as a witness. 1 Atk. 45. B. N. P. 202. See Peake, Rep. 11, where Buller, J., held that the proper question to be asked of a witness is, whether he believes in God, the obligation of an oath, and in a future state of rewards and punishments.—Chitty.

I have known a witness rejected and hissed out of court who declared that he doubted of the existence of a God and a future state. But I have since heard a learned judge declare at nisi prius that the judges had resolved not to permit adult witnesses to be interrogated respecting their belief of a Deity and a future state. It is probably more conducive to the course of justice that this should be presumed till the contrary is proved; and the most religious witness may be scandalized by the imputation which the very question conveys.

Quakers, who refuse to take an oath under any form, by the 7 & 8 W. III. c. 34 are permitted in judicial proceedings to make a solemn affirmation; and if such affirmation, like an oath, is proved to be false, they are subject to the penalties of perjury. But this does not extend to criminal cases. 8 Geo. I. c. 6. 22 Geo. II. c. 30 and c. 46.

Their affirmations are received in penal actions, as for bribery. See Atcheson vs. Everitt, Cowp. 382, where this subject is largely discussed.

Lord Mansfield lays down generally that an affirmation is not refused where the action, though in form of a criminal action, in substance is a mere action between party and party. Lord Mansfield there laments that such an exception had been made by the legislature.—Christian.

[23 ] “The old cases upon the competency of witnesses have gone upon very subtle grounds; but of late years the courts have endeavoured as far as possible, consistent with authorities, to let the objection go to the credit rather than to the competency of a witness.” Lord Mansfield, 1 T. R. 300.

It is now established that if a witness does not immediately gain or lose by the event of the cause, and if the verdict in the cause cannot be evidence either for or against him in any other suit, he shall be admitted as a competent witness, though the circumstances of the case may in some degree lessen his credibility. 3 T. R. 27. The interest must be a present, certain, vested interest, and not uncertain or contingent, (Doug. 134. 1 T. R. 163. 1 P. Wms. 287:) therefore the heir-apparent is competent in support of the claim of the ancestor, though the remainderman, having a vested interest, is incompetent. Salk. 283. Ld. Raym. 724. A clerk of the company of wire-drawers is competent in an action against a person for acting as an assistant, although the verdict might cause the defendant to be sworn, upon which the clerk would obtain a fee. See Stark. on Evid. p. 4, 745.

A servant of a tradesman from necessity is permitted in an action by his master to prove the delivery of goods, though he himself may have purloined them; but in an action brought against the master for the negligence of his servant, the servant cannot be a witness for his master without a release; for his master may afterwards have his action against the servant, and the verdict recovered against him may be given in evidence in that action to prove the damage which the master has sustained. 4 T. R. 589.

By the 46 Geo. III. c. 37, it is enacted that a witness cannot refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself or to expose him to a penalty or forfeiture, by reason only that the answer to such question may establish, or tend to establish, that he owes a debt or is subject to a civil suit.

This statute was passed because upon a point which arose at lord Melville’s impeachment the high living authorities of the law were nearly divided, whether a witness was compellable to answer such a question. But surely it was agreeably to the law of England that a man should be compelled to be honest, and where, if he avoided the question, injustice would be done both between the parties before the court and afterwards between the witness and some other party.—Christian.

[24 ] A witness may be examined with regard to his own infamy, if the confession of it does not subject him to any future punishment; as a witness may be asked if he has not stood in the pillory for perjury, (4 T. R. 440;) but he cannot be entirely rejected as a witness without the production of the record of conviction, by which he is rendered incompetent. 8 East, 77.—Christian.

Though it has been held in some other cases that a witness is not bound to answer such questions. 4 St. Tri. 748. 1 Salk. 153. 4 Esp. 225, 242. It is quite clear that a man is not bound to answer any questions, either in a court of law or equity, which may tend to criminate himself, or which may render him liable to a penalty. Stra. 444. 3 Taunt. 424. 4 St. Tri. 6. 6 ib. 649. 16 Ves. 242. 2 Ld. Raym. 1088. Mitford’s Ch. Pl. 157. As to questions which merely disgrace the witness, there is some difficulty. See Stark. on Evid. pt. 2, 139. Still, a witness is in no case legally incompetent to allege his own turpitude, or to give evidence which involves his own infamy (2 Stark. Rep. 116. 8 East, 78. 11 East, 309) or impeaches his own solemn acts, (5 M. & S. 244. 7 T. R. 604,) unless he be rendered incompetent by a legal interest in the event of the cause, or in the record. It seems to be a universal rule that a particeps criminis may be examined as a witness in both civil and criminal cases, provided he has not been incapacitated by a conviction of crime. As a clerk who had laid out money which he had embezzled in illegal insurances was held to be a competent witness for the master against the insurer. Cowp. 197. So a man who has pretended to convey lands to another may prove that he had no title. Ld. Raym. 1008. A co-assignee of a ship may prove that he had no interest in the vessel. Cited in 1 T. R. 301. The parents may give evidence to bastardize their issue, (6 T. R. 330, 331 or to prove the legitimacy. (ib.:) though it is said the sole evidence of the mother a married woman, shall not be sufficient to bastardize her child. B. R. H. 79. 1 Wils. 340.—Chitty.

The first inroad on the systematic exclusion of evidence, which was the result of the former state of the law, was made by the statute 3 & 4 W. IV. c. 42, s. 96, which enacted that “in order to render the rejection of witnesses on the ground of interest less frequent, if any witness should be objected to as incompetent, on the ground that the verdict or judgment in the action would be admissible in evidence for or against him, he should nevertheless be examined; but in that case the verdict or judgment should not be admissible for or against him or any one claiming under him.” A much greater improvement was, however, effected by the statute 6 & 7 Vict. c. 85, which removed incompetency by reason of incapacity from crime or on the ground of interest in all persons, except the parties to the suit, or the persons whose rights were involved therein, such as the real plaintiff in the fictitious action of ejectment, or any person in whose immediate and individual behalf any action was brought or defended, or the husband or wife of such persons. The advantages found to flow from this alteration in the law led to the statute 14 & 15 Vict. c. 99, by the first section of which the proviso in the statute 6 & 7 Vict. c. 85 (which excluded all persons directly interested in the suit) was repealed. By the second section, the parties and the persons in whose behalf any action, suit, or other proceeding is brought or defended are made (except as therein excepted) competent and compellable to give evidence on behalf of either or any of the parties to the suit in any court of justice. The third section of the statute provides that it shall not render any person charged with an offence competent or compellable to give evidence against himself, nor shall it render any person compellable to answer any question tending to criminate himself, nor shall it in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. The fourth section of the statute further provides that it shall not apply to any proceeding instituted in consequence of adultery, or to any action for breach of promise of marriage. It was decided soon after it had become law that the second section of the statute did not render a wife admissible as a witness for or against her husband; and accordingly the statute 16 & 17 Vict. c. 83 was passed, enacting that the husbands and wives of the parties to any suit, or of the persons on whose behalf any such proceeding is brought or defended, shall thereafter be competent and compellable to give evidence on behalf of either party or any of the parties. Neither husband nor wife is compellable, however, to disclose any communication made or received during marriage; and neither party is a competent witness in a criminal proceeding, or in any proceeding instituted in consequence of adultery.—Kerr.

[(w) ] Law of Nisi Prius, 267.

[25 ] But the principles and policy of this rule restrain it to that confidence only which is placed in a counsel or solicitor, and which must necessarily be inviolable where the use of advocates and legal assistants is admitted. But the purposes of public justice supersede the delicacy of every other species of confidential communication. In the trial of the duchess of Kingston, it was determined that a friend might be bound to disclose, if necessary in a court of justice, secrets of the most sacred nature which one sex could repose in the other; and that a surgeon was bound to communicate any information whatever which he was possessed of in consequence of his professional attendance. 11 St. Tr. 243, 246. And those secrets only communicated to a counsel or attorney are inviolable in a court of justice which have been intrusted to them whilst acting in their respective characters to the party as their client. 4 T. R. 431, 753.—Christian.

[(x) ] Cod. 4, 20, 9.

[26 ] In equity no decree can be made on the oath of one witness against the defendant’s answer on oath, (Ventr. 161. 3 Ch. C. 123, 69;) and one witness is not sufficient against the husband, although it be supported by the answer of the wife, for she cannot be a witness against her husband. 2 ib. 30. 3 P. Wms. 238. But a decree may be made on the evidence of a single witness, where the evidence of the other party is falsified or discredited by strong circumstances. 2 Vern. 554. 2 Atk. 19. 3 ib. 419. 1 Bro. Ch. C. 52. In high treason, when it works corruption of blood, two witnesses are necessary, by 7 W. III. c. 3. So two are necessary in perjury. 10 Mod. 195; post, 4 book, 150. In all other cases the effect of admissible evidence, whether given by one or more witnesses, is solely for the consideration of the jury. See Stark. on Evid. pp. 3, 398, 399.—Chitty.

[(y) ] Co. Litt. 373.

[(z) ] Ibid. 6.

[(a) ] Gilb. Evid. 161.

[27 ] The author does not, perhaps, literally mean here that no evidence would be received, if in fact it could be produced, to rebut even the most violent presumption, for the maxim which he has cited above implies the contrary; but I suppose him to mean that such a presumption is so weighty that no evidence will countervail it. Even in this light it is too strongly expressed; for the acquittance might undoubtedly be shown to have been given by mistake, or extorted by menace, or drawn from the party by fraud. So in lord Coke’s instance:—“If one be runne throw the bodie with a sword in a house, whereof he instantly dieth, and a man is seene to come out of that house with a bloody sword, and no other man was at that time in the house.” The party here might have run himself through the body, in spite of the endeavours of the other to the contrary; and if a witness had seen that from an opposite window, undoubtedly he would be received to destroy the violent presumption arising from the apparent circumstances. Indeed, if witnesses are receivable, as they daily are, to contradict or explain away positive proof, of course they must, a fortiori, be so to rebut presumptive proof.

But there are presumptions in law which are not controvertible; that is, where the law has declared that such a consequence always follows such a fact, and therefore withdraws that consequence from the decision of the jury. These, therefore, are not the proper subject of evidence as we understand the word here; and therefore when the causing fact is proved, as no evidence aliunde is required, so none will be admitted to rebut the consequence. Thus, if a conspiracy to imprison the king’s person be proved, the law presumes an intention to kill him. Fost. 196. See Fearne vs. Hutchinson, 9 Ad. & Ell. 641.—Coleridge.

Presumptions are of three kinds: 1st, Legal presumptions, made by the law itself; 2d, Legal presumptions, to be made by a jury, of law and fact; 3d, Natural presumptions, or presumptions of mere fact.

1st. Legal presumptions are in some cases absolute, as that a bond or other specialty was executed upon a good consideration, (4 Burr. 2225,) so long as the deed or bond remains unimpeached; but it may be impeached on the ground of fraud, and then the consideration becomes the subject of inquiry. But in the case of bills of exchange, the presumption that it was accepted for a good consideration may be rebutted by evidence. So where a fine has been levied, it will be implied that it has been levied with proclamations, (3 Co. 86, b.,) unless rebutted, (Bull. N. P. 229,) and some other like instances; but the presumption in favour of innocence is, it has been held, too strong to be overcome by any artificial intendment of law. 2 B. & A. 386. 2d. Presumptions of law and fact, as that adverse enjoyment, unquestioned for twenty years, of an incorporeal hereditament, presumes a grant; that a bond has been satisfied upon which no interest has been paid, nor other acknowledgment made of its existence, for a like period, (2 Stra. 826. 2 Ld. Raym. 1370,) that there has been a conversion in the case of trover where the defendant refuses to deliver them up. 3d. Natural presumptions. It is the peculiar province of the jury to deal with presumptions of this class; yet, where the particular facts are inseparably connected according to the usual course of nature, the courts themselves will draw the inference; as when a child has been born within a few weeks after access of the husband, its bastardy will be inferred without the aid of a jury. 8 East, 193. All cases of circumstantial evidence may be more or less within this class. And it is obvious that the case put in the text belongs to this division, upon which Mr. Christian has made the following remark:—

“This can scarcely be correct. I should conceive that proof may be admitted to repel all presumptions whatever; and even if a receipt should be produced expressly for the rent of the year 1754, still, the landlord might show that it had been obtained by mistake or fraud, and that no rent had been received at the time.” In a case of a similar nature tried before Abbott, C. J., at Guildhall, ad 1824, the landlord adduced evidence to show the mistake, and recovered.—Chitty.

[(b) ] Co. Litt. 373.

[28 ] It is difficult to say what is a light and rash presumption, if it is any presumption at all. Any circumstance may be proved from which a fair inference can be drawn, though alone it would be too slight to support the verdict of the jury; yet it may corroborate other testimony, and a number of such presumptions may become of importance. Possunt diversa genera ita conjungi, ut quæ singula non nocerent, ea universa tanquam grando reum opprimant. Matthæus de Crim.—Christian.

[(c) ] Reg. Br. 182. 2 Inst. 487.

[(d) ] Co. Litt. 72. 5 Rep. 104.

[29 ] The matter which the jury has to try is the issue joined upon the pleadings which are copied on the nisi prius record, and at which alone the judge is permitted to look for the question to be tried. Although, therefore, the plaintiff may be able to prove a good cause of action, or the defendant a good defence, that is not sufficient to entitle either to a verdict, unless the proof of it establishes that side of the issue which it is his duty to maintain. When there was no power to amend the pleadings at nisi prius, it accordingly often happened that a party failed on the trial, by reason of some minute discrepancy between the statement of his cause of action or defence and the evidence produced to support it; for though as a rule it is sufficient that the issue shall be substantially proved, it is necessary that it be completely proved. This strictness consequently produced great injustice; for parties perfectly aware of the true nature of the dispute came to trial relying upon some slight misstatement in his adversary’s pleadings not material to the merits of the case, and which, had it been discovered in time, would have been corrected. To obviate hardships of this kind, the statute 9 Geo. IV. c. 15 enacted that it should be lawful for any court or any judge sitting at nisi prius, when any variance appeared between any matter in writing or in print produced in evidence and the recital thereof on the record, to cause the record to be forthwith amended in such particular on payment of such costs, if any, to the other party, as such judge or court thought reasonable; the trial thenceforth to proceed as if no such variance had appeared. The statute 3 & 4 W. IV. c. 42, ss. 23, 24 extended this power of amendment to all cases where any variance appeared between the proof and the recital or setting forth thereof on the record, the trial to proceed as if no variance had happened.

The powers of amendment given by these statutes have been still further extended, if not superseded, by the provisions of the Common-Law Procedure Act, 1852. Thus, a non-joinder or misjoinder may be amended at the trial; so the evidence of the plaintiff may show a contract or cause of action varying somewhat from that alleged in his declaration; or the defendant’s witnesses may make out a defence which has not been pleaded with technical exactness. In either case the declaration or plea may be amended; and this must be done by the presiding judge, so that the real question in controversy between the parties to the cause may be determined in the existing suit. Amendments are generally granted on payment of the costs previously incurred, and which by the amendment have been rendered unnecessary or without result. The defendant may be allowed, if necessary, to plead de novo; in which latter case the further trial of the action is at once stopped and the jury discharged from giving any verdict. If either party is dissatisfied with the decision of the judge, he may apply for a new trial; and if the court think that the amendment was improper, a new trial will be granted.—Kerr.

[(e) ] Hale’s Hist. C. L. 254, 255, 256.

[(f) ]Institut. Orat. l. 5, c. 7.

[(g) ] See his epistle to Varus, the legate or judge of Cilicia: “Tu magis scire potes, quanta fides sit habenda testibus; qui, et cujus dignitatis, et cujus æstimationis sint; et, qui simpliciter visi sint dicere: utrum unum eundemque meditatum sermonem attulerint, an ad ea quæ interrogaveras extempore verisimilia responderint.” Ff. 22, 5, 3.

[(h) ] Year-book, 14 Hen. VII. 29. Plowd. 12. Hob. 227. 1 Lev. 87.

[(i) ] Vaugh. 148, 149.

[(j) ] Bract. l. 4, tr. 1. c. 19, 3. Flet. l. 4, c. 9, 2.

[(k) ] Styl. 233. 1 Sid. 133.

[(l) ] C. 2.

[(m) ] Mirr. c. 4, 24.

[(n) ]Lib. Ass. fol. 40, pl. 11.

[30 ] Pending a trial of long duration the jury may be adjourned, and in civil cases may separate; but after the judge has summed up, they cannot separate. 2 Bar. & Ald. 462.—Chitty.

[(o) ] See Barrington on the Statutes, 19, 20, 21.

[(p) ] Stiern l. 1, c. 4.

[31 ] The learned judge has displayed much erudition in the beginning of this chapter to prove the antiquity of the trial by jury; but the trials referred to by the authors there cited, and even the judicium parium, mentioned in the celebrated chapter of magna charta, are trials which were something similar to that by a jury, rather than instances of a trial by jury according to its present established form. The judicium parium seems strictly the judgment of a subject’s equals in the feudal courts of the king and barons. And so little appears to be ascertained by antiquarians respecting the introduction of the trial in criminal cases by two juries, that although it is one of the most important, it is certainly one of the most obscure and inexplicable, parts of the law of England.

The unanimity of twelve men, so repugnant to all experience of human conduct, passions, and understandings, could hardly in any age have been introduced into practice by a deliberate act of the legislature.

But that the life, and perhaps the liberty and property, of a subject should not be affected by the concurring judgment of a less number than twelve, where more were present, was a law founded in reason and caution, and seems to be transmitted to us by the common law, or from immemorial antiquity. The grand assize might have consisted of more than twelve, yet the verdict must have been given by twelve or more; and if twelve did not agree, the assize was afforced,—that is, others were added till twelve did concur. See 1 Reeve’s Hist of Eng. Law, 241, 480. This was a majority, and not unanimity. A grand jury may consist of any number from twelve to twenty-three inclusive, but a presentment ought not to be made by less than twelve. 2 Hale, P. C. 161. The same is true also of an inquisition before the coroner. In the high court of parliament and the court of the lord high steward a peer may be convicted by the greater number; yet there can be no conviction unless the greater number consists at least of twelve. 3 Inst. 30. Kelyng. 56. Moore, 622. Under a commission of lunacy the jury was seventeen, but twelve joined in the verdict. 7 Ves. Jr. 450. A jury upon a writ of inquiry may be more than twelve. In all these cases, if twelve only appeared, it followed as a necessary consequence that to act with effect they must have been unanimous.

Hence this may be suggested as a conjecture respecting the origin of the unanimity of juries, that, as less than twelve—if twelve or more were present—could pronounce no effective verdict, when twelve only were sworn, their unanimity became indispensable.—Christian.

[(q) ] Page 275. See also book iv. 379.

[32 ] When a verdict will carry all the costs, and it is doubtful from the evidence for which party it will be given, it is a common practice for the judge to recommend, and the parties to consent, that a juror should be withdrawn; and thus no verdict is given, and each party pays his own costs.

Where there is a doubt at the trial whether the evidence produced by the plaintiff is sufficient to support the verdict given in his favour by the jury, the judge will give leave to apply to the court above to set aside the verdict and to enter a non-suit; but if such liberty is not reserved at the trial, the court above can only grant the defendant a new trial, if they think the plaintiff’s evidence insufficient to support his case. 6 T. R. 67.—Christian.

[(r) ] 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.

[33 ] A privy verdict cannot be given in treason and felony. 2 H. P. C. 300.—Chitty.

[(s) ] Litt. 386.

[(t) ] Montesq. Sp. L. xi. 6.

[(u) ] 2 Whitelocke of Parl. 427.

[(w) ] Mod. Un. Hist. xxxiii. 22.

[(x) ] Ibid. 17.

[34 ] The Common-Law Procedure Act, 1854, now, however, enables either party, by leave of the court or a judge, to interrogate his opponent upon any matter as to which discovery may be sought, and to require such party to answer the questions within ten days, by affidavit sworn and filed in court in the ordinary way. Any person omitting, without just cause, to answer all questions as to which a discovery is sought is guilty of a contempt, and liable to be proceeded against accordingly.—Kerr.

[35 ] Where one party is in possession of papers or any species of written evidence material to the other, if notice is given him to produce them at the trial, upon his refusal copies of them will be admitted; or, if no copy has been made, parol evidence of their contents will be received. The court and jury presume in favour of such evidence, because, if it were not agreeable to the strict truth, it would be corrected by the production of the originals. There is no difference with respect to this species of evidence between criminal and civil cases. 2 T. R. 201.—Christian.

The statute 14 & 15 Vict. c. 99, s. 6, enacts that, on any action or other legal proceeding in the superior courts of common law, the court or any judge thereof may, on application by either of the litigants, compel the opposite party to allow the party applying to inspect all documents in his custody or under his control relating to such action or other legal proceeding, in all cases in which a discovery may be obtained by filing a bill or other proceeding in a court of equity.—Kerr.

[36 ] But now, by stat. 1 W. IV. c. 22, the courts of law at Westminster are empowered, in any action depending in such courts, upon the application of any of the parties to such action, to order the examination, upon oath, upon interrogatories, or otherwise, of any witnesses, and, if any of such witnesses are out of the jurisdiction of the court when the action is pending, to order a commission to issue for their examination, and to give all such directions touching the time, place, and manner of the examination as may appear reasonable and just; but no examination or deposition taken by virtue of the act can be read in evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge that the examinant is then beyond the jurisdiction of the court, or dead, or unable, from permanent sickness, to attend the trial. And now, by stat. 6 & 7 Vict. c. 82, s. 5, power is given to compel the attendance of persons to be examined under any commission.—Stewart.

[(y) ] See page 73.

[37 ] A court can compel the plaintiff to consent to have a witness going abroad examined upon interrogatories, or to have in absent witness examined under a commission, by the power the judges have of putting off the trial; but they have no control in these instances over the defendant.—Christian.

[(z) ] Stat. 13 Geo. III. c. 63.

[(a) ] Stra. 177.

[(b) ] See page 294.

[(c) ] This, among a number of other instances, was the case of the issues directed by the house of lords in the cause between the duke of Devonshire and the miners of the county of Derby, ad 1762.

[38 ] This may now be done in a court of law. Tidd, 8th ed. 655.—Chitty.

[(d) ]LL. Edw. Conf. c. 32. Wilk. 203.

[(e) ] See page 360.