Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of The Trial by Jury
THE subject of our next inquiries will be the nature and method of the trial by jury; called also the trial per pais, or by the country. A trial that has been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. Some authors have endeavored 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 Nicolson1 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 feudal 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.2 In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention.3 Stiernhook4 ascribes the invention of the jury, which in the Teutonic languages is denominated nembda, to Regner, king of Sweden and Denmark, who was contemporary with our king Egbert. Just as we are apt to impute the invention of this, and some 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 everything: and as the tradition of ancient Greece placed to the account of their one 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. 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 of 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 terrae“. A privilege which is couched in almost the same words with that of the emperor Conrad, two hundred years before:5 “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.
TRIALS 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 dueling. For this purpose a writ de magna assisa eligenda is directed to the sheriff,6 to return four knights, who are to elect and choose twelve others to be joined with them, in the manner mentioned by Glanvil;7 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 consist of sixteen jurors.8
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.
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.
WHEN 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 recognize the truth of the issue between the said parties.”9 And such writ is 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 anciently had, in actions which were there first commenced; which never happened but in matters of weight and consequence, all trifling suits being ended in the court-baron, hundred, or county courts: and 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 Westmorland perhaps or Cornwall, to try an action of assault at Westminster. Therefore the legislature took into consideration, that the kin’s justices came usually twice in the year into the several counties, ad capiendas assisas, to take or try writs of assize, of mort d’ ancestor, novel disseizin, nuisance, and the like. The form of which writs we may remember was stated to be, that they commanded the sheriff to summon an assize or jury, and go to view the land in question; and then to have the said jury ready at the next coming of the justices of the assize (together with the parties) to recognize and determine the disseizin, or other injury complained of. As therefore these judges were ready in the country to administer justice in real actions of assize, the legislature thought proper to refer other matters in issue to be also determined before them, whether of a mixed or personal kind. And therefore it was enacted by statute Westm. 2. 13. Edw. I. c. 30. that a clause of nisi prius should be inserted in all the aforesaid writs of venire facias; that is, “that the sheriff should cause the jurors to come to Westminster (or wherever the king’s courts 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 remedy: 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 jail-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 the cause 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 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,10 “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. Therefore the sheriff is commanded 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 this jury to appear at the assizes, and there the trial is had before the justices of assize and nisi prius: among whom (as has been said11) are usually two of the judges of the courts at Westminster, the whole kingdom being divided into six circuits for this purpose. And thus we may observe that the trial of common issues, at nisi prius, was in its original only a collateral incident to the original business of the justices of assize; though now, by the various revolutions of practice, it is become their principal employment: hardly anything 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 named by the court, and sworn.12 And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final.
LET us now pause awhile, and observe (with Sir Matthew Hale13) 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 willful 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 may 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 uniformity of proceeding is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, on 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 whom 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 shall 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 33 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. But let us now return to the assizes.
WHEN the general day of trial 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 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 begins to be disused, since the statute 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 nonsuited, and judgment shall be given for the defendant as in case of a nonsuit. 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: and if the plaintiff then charges his mind, and does not countermand the notice six days before the trial, he shall be liable to pay costs to be 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.
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 freeholder’s book; and the officer is to take indifferently 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 directions of the statute 3 Geo. II. c. 25. which appoints, that the sheriff 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 of 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; and unless a previous view of the lands, or tenements, or other matters in question, shall have been though necessary by the court: 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 to take such view; and then such of the jury as have appeared upon the view (if any14) 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.
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.
CHALLENGES 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: but an unexpected use having been made of this dormant privilege by a spiritual lord,15 (though his title to such privilege was very doubtful16) it was abolished by statute 24 Geo. II. c. 18. Also, by the policy of the ancient law, the jury was to come de vicineto, from the neighborhood 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.”17 For, living in the neighborhood, they were properly the very country, or pais, to which both parties had appealed; and were supposed to know before-hand the characters of the parties and witnesses, and therefore the 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 neighborhood, would be apt 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,18 being in the time of Fortescue19 reduced to four. Afterwards indeed the statute 35 Hen. VIII. c. 6. restored the ancient number of six, but that clause was soon virtually repealed by statute 27 Eliz. c. 6. which required only two. And Sir Edward Coke also20gives 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 Ann. c. 16. 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 neighborhood. The array by the ancient law may also be challenged, if an alien by party to the suit, and, upon a rule obtained by his motion to the court for a jury de medietate linguae, such a one be not returned by the sheriff, pursuant to the statute 28 Edw. III. c. 18. which enacts, that where either party is an alien born, the jury shall be one half aliens and the other denizens, if required, for the more impartial trial. A privilege indulged to strangers in no other country in the world; but which is as ancient with us as the time of king Ethelred, in whose statute de monticolis Walliae (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 the statute 21 Hen. VI. c. 4. the whole jury are then directed to be denizens. And it may be questioned, whether the statute 3 Geo. II. c. 25. (before referred to) has not in civil causes undesignedly abridged this privilege of foreigners, by the positive directions therein given
concerning the manner of impaneling jurors, and the persons to be returned in such panel. So that the court might probably hesitate, especially in the case of special juries, how far it has now a power to direct a panel to be returned de medietate linguae, and to alter the method prescribed for striking a special jury, or balloting for common jurymen.
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.21 By the laws of England also, in the times of Bracton22 and Fleta,23 a judge might be refused for good cause; but now the law is otherwise, and it is held that judges or justices cannot be challenged.24 For the law will not suppose a possibility of bias or favor 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 misbehavior 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:25 propter honoris respectum; propter defectum; propter affectum; and propter delictum.
1. Propter honoris respectum; as if a lord of parliament be impaneled on a jury, he may be challenged by either party, or he may challenge himself.
2. 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 suppositious birth is suspectedto be intended; then upon the writ de ventre inspiciendo a jury of women is to be impaneled to try the question, whether with child, or not.26 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 Westm. 2. 13 Edw. I. c. 38. none shall pass on juries in assizes within the county, but such as may dispend 20 s. by the year at the least; which is increased to 40 s. by the statute 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 4£ 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 20£ 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 10£ per annum in England and 6£ 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 20£ per annum over and above the rent reserved, is qualified to serve upon juries. When the jury is de medietate linguae, that is, one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall be cause of challenge
to the alien; for, as he is incapable to hold any, this would totally defeat the privilege.
3. JURORS may be challenged propter affectum, for suspicion of bias or partiality. This may either a principal challenge, or to the favor. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor: as, that a juror is of kin to either party within the ninth degree;27 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, counselor, 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 favor, are where the party has no principal challenge; but object only some probably circumstances of suspicion, as acquaintance, and the like;28 the validity of which must be left to the determination of triers, whose office it is to decide whether the juror be favorable or unfavorable. The triers, 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 two triers shall try the next; and when another is found indifferent and sworn, the two triers shall be superseded, and the two first sworn on the jury shall try the rest.29
4. CHALLENGES propter delictum are for some crime or misdemeanor, that affects the juror’s credit and renders him infamous. As for a conviction of treason, felony, perjury, or conspiracy; or if he has received judgment of the pillory, tumbrel, or the like; or to be branded, whipped, or stigmatized; or if he be outlawed or excommunicated, or has been attainted of false verdict, praemunire, or forgery; or lastly, if he has proved recreant when champion in the trial by battle, and thereby has lost his liberam legem. A juror may himself be examined on oath of voir dire, veritatem dicere, with regard to the three former of these causes of challenge, which are not to his dishonor; but not with regard to this head of challenge, propter delictum, which would be to make him either forswear or accuse himself, if guilty.
BESIDES these challenges, which are exceptions against the fitness of jurors, and whereby they may be excluded form 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. C. 13. Edw. I. c. 38. sick and decrepit persons, persons not commorant in the county, and men above seventy years old; and by the statute of 7 & 8 W. III. c. 32. infants under twenty one. This exemption is also extended by diverse statutes, customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impaneled, must show their special exemption. Clergymen are also usually excused, out of favor and respect to their function: but, if they are seized of lands and tenements, they are in strictness liable to be impaneled 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.”30
IF by means of challenges, or other cause, a sufficient number of unexceptionable jurors does 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 statutes, the judge is empowered at the prayer of either party to award a tales de circumstantibus,31 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 apostolic number Sir Edward Coke32 has discovered abundance of mystery.33
WHEN a sufficient number of persons impaneled, or talesmen, 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 favor 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 practiced in the Roman republic, before she lost her liberty: that the select judges should be appointed by the praetor with the mutual consent of the parties. Or, as Tully34 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 praetor; 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 praetor 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.35
THE jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impaneled and sworn to try, the pleading 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;36 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 sent down to be determined. Instead of which formerly37 the whole record and process of the pleadings was read to 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.38 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. Ancient deeds of thirty years standing, which prove themselves; but 3. Modern deeds, and 4. Other 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. 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 burnt 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. 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:39 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,40 the best evidence that can then be produced. However this dangerous species of evidence is not carried so far in England as abroad;41 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 practiced with us42) with the suppletory oath of the merchant, amount at all times to full proof. But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long distance of time, the statute 7 Jac. I. c. 12. (the penners of which seem to have imagined that the books of 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 unraveled and adjusted.
WITH regard to parol evidence, or witnesses; it must first be remembered, that there is a process to bring them in by writ of subpoena ad testificandum: which commands them, laying aside all pretenses and excuses, to appear at the trial on pain of 100£ to be forfeited to the king; to which the statute 5 Eliz. c. 9. has added a penalty of 10£ 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 given 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: and, upon the same principle, in the Athenian courts, the witnesses who were summoned to attend the trial had their 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.43
ALL witnesses, that have the use of their reason, 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. 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. And no counsel, attorney, or other person, entrusted 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:44 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 entrusted in the cause.
ONE witness (if credible) is sufficient evidence to a jury of any single fact; 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 audiatur.”45 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 any 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 favor, 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 .
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 contrary be actually proved. Stabitur praesumptioni donec probetur in contrarium.46 Violent presumption is many times equal to full proof;47 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.48 Probable presumption, arising from such circumstances as usually attend the fact, has also its due weight: as if, in a suit for rent due 1754, the tenant proves the payment of the rent due in 1755, this will prevail to exonerate the tenant,49 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.
THE oath administered to the witness is not only that what be 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 is his directions or decisions, he misstates 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 wherein he is supposed to err: and this he is obliged to seal by statute Westm. 2. 13 Edw. I. c. 31. or, if he refuses so to do, the party may have a compulsory writ against him,50 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 trust of every fact that has been alleged, but denies the sufficiency of them all in point of law to maintain or overthrow the issue:51 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 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.
THIS open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth,52 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, behavior, 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 matter of it. These are a few of the advantages attending this, the English, way of giving testimony, ore tenus. Which was also indeed familiar among the ancient Romans, as may be collected from Quinctilian;53 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:54 but the civil law, as it is now modeled, 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 ancient 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 has been often held,55 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 construed56 to be, to do it according to the best of their own knowledge. Which construction was probably made out of tenderness to juries; that they might escape the heavy penalties of an 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 court. But this doctrine was 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,57 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 is, 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,58 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 fineable; 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 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,59 the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.60 This necessity of a total unanimity seems to be peculiar to our own constitution;61 or, at least, in the nembda or jury of the ancient 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.62
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,63 in case he fails in his suit, as a punishment for his false claim. To be amerced, or a 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 nonsuit, 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 nonsuited, or withdraw himself: whereupon the crier is ordered to call the plaintiff; and if neither he, nor anybody for him, appears, he is nonsuited, 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 nonsuit is more eligible for the plaintiff, than a verdict against him: for after a nonsuit, which is only a default, he may commence the same suit again 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.
A VERDICT, vere dictum, is either privy, or public. A privy verdict is when the judge has 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:64 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 their privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged. 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 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 shall be of opinion that the plaintiff and 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 as Westminster, from whence the issue came to be tried.
ANOTHER 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 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 case at length upon the postea. But in both these instances the jury may, if they thing 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.65
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.
UPON these accounts the trial by jury even 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 with for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors 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,66 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, 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 entrusted 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 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 entrusted 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 more artfully by 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 that 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 feudal system, which, for the sake of military subordination, pursued an aristocratical plain 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 feudal peers. And in every country of 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 or regal government; unless 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 vigor so lately as the middle of last century,67 is now fallen into disuse:68 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.69 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 it’s ancient 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 variety of plausible pretenses, 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 endeavoring to remove all the defects, as well at 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 going 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 a 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, common reason will tell us, that in the same country, governed by the same laws, such a mode of inquiry should be universally admitted, or else universally rejected.
2. A SECOND defect is a nature somewhat familiar 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 subpoena, which is then called a subpoena duces tecum. But, in mercantile transactions especially, the sight of the party’s own books is frequently decisive; such, for instance, as the daybook of a trader, where the transaction must be recently entered, as really understood at the time; though subsequent events may tempt him to give it a different color. 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.
3. 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. 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 adopted70 as the rule of a court of law.
4. THE administration of justice should not only be chase, but (like Caesar’s wife) should not even be suspected. A jury coming from the neighborhood is 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 such where assizes are but seldom held; 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 law71 must be in some adjoining court: but, as there may be a strict interest so minute as not to occasion any bias, so there may be the strongest bias, where the whole county cannot be said to have any pecuniary interest. In all these cases, to summon a jury, laboring under local prejudices, is laying a snare for their consciences: and, though they should have virtue and vigor of mind sufficient to keep them upright, the parties will grow suspicious, and resort under various pretenses 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 tried:72 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 the delay and expense of 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.73
THE locality of trial required by the common law seems a consequence of the ancient 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 times74) the lord of the hundred had a farther 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 has gradually worn away, and at length entirely vanished;75 that of counties 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 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.
1. de jure Saxonum, p. 12.
2. Sp. L. b. 30. c. 18. Capitul. Lud. pii. A. D. 819. c. 2.
3. Wilk LL. Angl. Sax. 117.
4. de jure Sueonum. l. I. c. 4.
5. LL. lougob. l. 3. t. 8. l. 4.
6. F. N. B. 4.
7. l. 2. c. 11-21.
8. Finch. l. 412. 1 Leon. 303.
9. Append. No. II. § 4.
10. Append. No. II. § 4.
11. See pag. 58.
12. Fortesc. de Laud. LL. c. 25.
13. Hist. C. L. c. 12.
14. 4 Burr. 252.
15. K. v. Bp. of Worcester. M. 23 Geo. II. B. R.
16. 2 Whitclocke of parl. 211.
17. Stiernhook de jure Goth. l. 1. c. 4.
18. Gilb. Hist. C. P. c. 8.
19. d Laud. LL. c. 25.
20. 1 Inst. 157.
21. Cod. 3. 1. 16. Decretal. i. 2. t. 28. c. 36.
22. l. 5. c. 15.
23. l. 6. c. 37.
24. Co. Litt. 294.
25. 1 Inst. 156.
26. Cro. Eliz 566.
27. Finch. L. 401.
28. In the nembda, or jury, or the ancient Goths, three challenges only were allowed to the favor, but the principal challenges were indefinite. “Licebat palam excipere, et semper ex probabili causa tres repudiari; etiam plures ex causa praegnanti et manifesta.” (Stiernhook l. 1. c. 4.)
29. Co. Litt. 158.
30. F. N. B. 166. Reg. Brev. 179.
31. Append. No. II. § 4.
32. 1 Inst. 155.
33. Pausanias relates, that at the trial of Mars, for murder, in the court denominated areopagus 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, (though he allows the institution of juries in general to be of much higher antiquity in England) tells us that among the inhabitants of Norway, from whom the Normans as well as the Danes were descended, a great veneration was paid to the number twelve; “nihil sanctius, nihil antiquius fuit; perinde ac si in ipso hoc numero secreta quaedam esset religio.” (Dissert. epistolar. 4.)
34. pro Cluentio. 43.
35. Ascon. in Cic. Verr. 1. 6.
36. Ff. 22. 3. 2. Cod. 4. 19. 23.
37. Fortesc. c. 26.
38. 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 has lately been engrafted into that learned and useful work, the introduction to the law of nisi prius. 4to. 1767.
39. Law of nisi prius. 266.
40. Salk. 285.
41. Gail. observat. 2. 20. 23.
42. 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 scripturae credatur, qua unusquisque sibi adnotatione propria debitorem constituit. (Ibid. l. 7.)
43. Pott. Antiq. b. 1. c. 21.
44. Law of nisi prius, 267.
45. Cod. 4. 20. 9.
46. Co. Litt. 373.
47. Ibid. 6.
48. Gilb. evid. 161.
49. Co. Litt. 373.
50. Reg. Br. 182. 2 Inst. 487.
51. Co. Littt. 72. 5 Rep. 104.
52. Hale’s Hist. C. L. 254, 5, 6.
53. Instit. orat. l. 5. c. 7.
54. 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 aestimationis sint; et, qui simpliciter visi sint dicere; utrum unum eundemque meditatum sermonem attulerint, an ad ea quae interrogaveras extempore verisimilia responderint.” (Ff. 22. 5. 3.)
55. Year book, 14 Hen. VII. 29. Hob. 227. 1 Lev. 87.
56. Vaugh. 148, 149.
57. Styl. 233. 1 Sid. 133.
58. ch. 2.
59. Mirr. c. 4. § 24.
60. Lib. Ass. fol. 40. pl. 11.
61. See Barrington on the statutes. 17, 18, 19.
62. Stiernh. l. 1. c. 4.
63. pag. 275.
64. If the judge has adjourned the court to his own lodgings, and there receives the verdict, it is a public and not a privy verdict.
65. Litt. § 386.
66. Montesq. Sp. L. xi. 6.
67. 2 Whitelocke of parl. 427.
68. Mod. Un. Hist. xxxiii. 22.
69. Ibid. 17.
70. See pag. 75.
71. Stra. 1777.
72. See pag. 294.
73. 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, A. D. 1762.
74. LL. Edw. Conf. c. 32. Wilk. 203.
75. See pag. 360.