transported,) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, within or without the king's dominions; on pain, that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved, a sum not less than five hundred pounds, to be recovered with treble costs-shall be disabled to bear any office of trust or profit-shall incur the penalties of a premunire, and be incapable of the king's pardon. *

TRIAL BY JURY.

THE trial of civil and criminal causes by a jury of twelve men, appears to have been introduced by William the Conqueror, and given by him as an inestimable inheritance to England for all generations, and which is now considered the birthright of every Briton, yet originally it was the spontaneous and free gift of the crown; and as the hearts of kings are in God's keeping, He prompts them to confer benefits on their subjects, which preserves justice and prevents oppression and violence. William was attached to all his Norman customs, and introduced them into England. This custom was not established at first by any positive statute, but came into use by slow degrees, and was far from being common, for almost all causes were tried by the senseless method of ordeals, which were of several sorts. But in the reign of Henry II., a law was made allowing the defendant in criminal or civil processes, to defend his innocence, or his right, either by battle or by a jury of twelve men, called the grand assize; the trial by jury, being the most rational, became more and more frequent, till at length it completely eclipsed its barbarous rival the judicial combat, and all other ordeals. The Conqueror without doubt destroyed the freedom and liberty of the English, but by the grant of trials by jury he planted the germ of English freedom, which was fully accomplished by the famous act of the 12 Charles II., from whence may be dated the re-establishment of the church and monarchy, and the restoration of that liberty for which the English nation had struggled ever since the era of the conquest. By the act just named, Charles II. removed all the slavish tenures, the badge of foreign dominion, with all their oppressive appendages, from encumbering the estates of the subjects: and also an additional security of his person from imprisonment was obtained by that great bulwark of our constitution, the habeas corpus act. These two statutes, with regard to our property

* Blackstone, De Lolme, Statutes at Large.

and persons, form a second magna charta, more beneficial and effectual than that conceded by king John at Runnymede.

Trials by jury in civil causes, are of two kinds; ordinary and extraordi

nary.

Jurors returned by the Sheriff are either special or common jurors. Special jurors 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 attorney on both sides, who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel.

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 or officer shall not return a separate panel for every 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; 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 matter 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. 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

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. 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. The array by the ancient 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 Edward III. c. 13, en

forced by 8 Henry VI. c. 29, which enact that when either party is an alien born, the jury shall be one half denizens, and the other aliens, for the more impartial trial. 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. that when 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 the statute 27 Ed. III.) the jury shall be den

izens.

Challenges to the polls, in capite, are exceptions to particular jurors. Challenges to the polls of the jury, (who are judges of fact,) are reduced to four heads by Sir E. Coke, propter honoris respectum, propter defectum, propter affectum, and propter delictum.

1. Propter honoris respectum; as if a lord of parliament be empannelled 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. But the principal deficiency is defect of estate, sufficient to qualify him to be a juror. This depends upon a variety of statutes. By the statute 4 and 5 W. and M. c. 24, it was 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 linguæ, i. e. 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 of holding any, this would totally defeat the privilege.

Jurors may be challenged, propter affectum, for suspicion of bias or partiality. This may be either as 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, that he hath been an arbitrator on either side, 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 corpora tion with him; all these are principal causes of challenge, which, if true, cannot be overruled, for jurors must be omni exceptione majores. Chal

lenges to the favour, or where the party are no principal challenge, but objects only to some probable circumstances of suspicion, as acquaintance and the like; 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 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.

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 for some infamous offence he hath received judgment of the pillory, tumbrel, or the like; if he has been branded, whipped, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, premunire, or for

gery.

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 jurors themselves, which are matter of exemption, whereby their service is excused, and not excluded. As by statute Westm. 2, 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 and 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, attornies, officers of the courts, and the like; all of whom if empannelled, must show their special exemption. Clergymen are also usually excused, out of favour and respect to their function but if they are seized of lands and tenements, they are in strictness liable to be empannelled, in respect of their lay fees, unless they be in the service of the king, or some bishop.

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 still be done at a trial at bar, if the jurors make default. But at the assizes, or nisi prius, by virtue of the statutes 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, of persons present in court, to be joined to the other jurors to try the cause, who are however liable to the same challenges as the principal jurors.

When a sufficient number of persons empannelled 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.

The jury are now ready to hear the merits; and to fix their attention the closer to the facts which they are empannelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question at issue. 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. 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.

Evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or spirit in issue, either on the one side or on the other, and no evidence ought to be admitted to any other point.

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 fact of not producing it, is a presumption that it would have detected some falsehood that at present is concealed.

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 £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 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.

All witnesses, of whatever religion or country, that have the use of