tables contained a provision. "De capite civis nisi per maximum comitiatum ne ferunto." It has even been supposed that the judices selecti of later times were "intended to be a sort of representation of the whole people for judicial purposes." (See Arnold's History of Rome, cap. xiv. note 80, citing Cicero, Philip. I. c. 9, and the text of the Commentaries.) Mommsen indeed holds a different opinion. (Roman History, I. 158.) The connection must be looked for rather in the office of judge of facts, than in the character of a tribunal of peers.

The chief objection to the theory that our jury as a trier of fact is derived from these judices (as to which see text, page 366), lies in the fact that the strongest resemblance to the latter is found in the later development of the jury, not in its original form. The jury as witness to a definite fact, from which the judge is to determine the judgment, has very little likeness to the judex deciding the whole case under a formula given him before the trial, and after hearing testimony on both sides. Upon the verdict itself the judge has never had any revisory power, while it is the better opinion that the prætor could revise and correct the sentence of the judex. (See Bethman-Hollweg, Civil Prozess, ii. 46, 62, n. 23; citing Dig. xlix. 1, 1, ?? 3 and 21, Dig. xlix. tit. 3, 3, 22 1, 3, and xlv. 1, 122, § 5.)

Even if the Roman sententia at an early date was as final as a verdict (as to which see Bethman-Hollweg, notes 21 and 22), this could have no influence on the historical connection of the two institutions.

(62) Called in the common pleas a habeas corpora juratorum, and in the king's bench a distringas, page 354. These writs answer respectively to the attachment and distress of the process by which parties are brought in. (As to which see page 280 of the text.) Evidently the same process was used in all cases until experience

showed that a single writ was all that was needed to bring in the jurors.

How it happened that one writ was selected for that purpose in the one court, another of the same series in the other, would hardly repay investigation. Yet the fact is interesting because it illustrates the true origin of that vast number of technicalities that gathered about the common law, and have often been attributed to the selfish greed of lawyers and court officers, when they may all be traced to historical causes.

(63) Challenges to the polls of the jury, page 361.

These are now usually divided into peremptory and for cause. The number of the former is strictly limited, to a small number in minor cases, to a larger in more important ones: largest of all in capital cases.

Those for cause are unlimited in number because each challenge is to be tried and allowed only if good cause is shown. For the common-law method of trial see page 363 of text.

(64) The law will not suppose a possibility of bias or favor in a judge, page 361.

In many states a party may now by statute obtain a change of venue on the ground of partiality or prejudice in a judge: and in some the judge is compelled to grant it when the charge is sustained by a certain number of affidavits, however free from suspicion he may know himself to be, or whatever the real motive of the application. The only apology for such a statute must be that in the few cases where a judge could so far forget his duty, it would be unsafe to trust him with any discretion in the matter.

But it may also be added that under our usual arrangements of circuits, the judge is in closer daily contact with most of the suitors than in England; and at the same time there is not the opportunity of securing a different judge by waiting for another circuit.

We have not, indeed, in this country the shield against judicial misbehavior on which Blackstone relies, in "a heavy censure from those to whom the judge is accountable for his conduct." (Text, ubi supra.) It must be gross misbehavior indeed that will draw down any notice of bias or favor in private matters from the great mass of voters to whom most judges in the United States owe their places, and to whom alone they are accountable. Yet before we condemn the elective judiciary on this account we should reflect that so long as the appointing officer himself is elective, we are rather hiding the difficulty than curing it by giving the appointment to a governor or president. Even our highest courts owe their purity to other causes than those that influence most of the appointments made to fill vacancies.

(65) Jurors, etc., juratores, page 365.

It is observable that although the body is called jurata as acting under oath, the members are never called jurati. That term was used for certain local or municipal officers, still called jurats, but I do not recall a single case of its use for jurors. This shows how clearly it was perceived that the office of jurors was to swear to facts, to give testimony (veredicta, true utterances), not to be judges of fact or to decide between contrary averments.

(66) No evidence ought to be admitted to any other point, page 367.

This implies the common-law rule of singleness of issue, forined by special pleading, whereby the entire case was made to turn upon a single fact. But under the general issue this was never carried to its logical consequence, but evidence was admissible of almost every fact that showed that the one party was or the other was not entitled to recover.

The limitation of the pleadings under the new pro

cedure to one, or at most two, on a side makes it impossible to carry out this theory, or in most cases to reduce the whole contention to a single issue. (See notes 54, 56, pages 417, 418.) However specifically facts are stated or denied, there must be several on the truth of which the result must depend, all to be tried by the same jury and found in the same verdict.

(67) Presumptions, which are only to be relied upon till the contrary be actually proved, page 371.

Blackstone here anticipates the conclusion of Mr. Justice Stephen, who, in his excellent Digest of Evidence, article 1, "Definition of Terms," has limited the extension of the term in the same way.

"A presumption means a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved." And in note 1 he adds: "I use the word 'presumption' in the sense of a presumption of law, capable of being rebutted. A presumption of fact is simply an argument. A conclusive presumption I describe as conclusive proof." (And see Best on Evidence, ? 299.)

Blackstone has indeed described these "conclusive proofs" under the name of violent presumptions which as he says are "eqivalent to full proof"; and he has neglected to distinguish probable and light presumptions, by the essential mark of difference between them, as presumptions juris et facti. This seems to be due to his identification of the doctrine of presumptions with circumstantial evidence, throughout. But his definition, above quoted, points out the exact limit within which the term may be exactly and usefully employed. This is the præsumptio juris of the civilians and the only one in which the term "presumption" has any real significance in our law. The civilians and canonists, who knew no separate triers of fact and therefore

treated all questions of proof as matter of law for the court, might properly use the word otherwise, in a sense that answers generally to the topic of circumstantial evidence in our law.

(68) From town to town in a cart, page 376.

This holding, though it has been quoted many times by judges before as well as since Blackstone, resolves itself on examination into the dictum of a judge, that rather than take the verdict of eleven jurors the justices should have carried them on the circuit in a cart till they agreed. The case is 41 Ass. 11 (not 40 Ass. as all the editions of Blackstone have in note) and a similar dictum is found in 19 Ass. 6.