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 101. per annum in England and 61. 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 201. 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 [363] shall be cause of challenge to the alien; for, as he is incapable to hold any, this would totally defeat the privilege. (d) 3. Jurors may be challenged propter affectum," for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree; (e) that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him: all these are principal causes of challenge; which, if true, cannot be overruled, for jurors must be omni exceptione majores. Challenges to the favour, are where the party hath no principal challenge: but objects only some probable circumstances of suspicion, as acquaintance and the like; (f) the validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favourable or unfavourable. The triors, in case the first man called be challenged, are two indifferent persons named by the court; and if they try one man and find him indifferent, he shall be sworn, and then he and the two triors shall try the next; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest. (g) 4. Challenges propter delictum," are for some crime or misdemesnor, 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; [364] or to be branded, whipt, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, praemunire, or forgery; or lastly, if he hath proved recreant when champion in the trial by battel, and thereby hath lost his liberam legem. A juror may himself be examined on oath of voir dire, veritatem dicere, with regard to such causes of challenge, as are not to his dishonour or discredit; but not with regard to any crime, or any thing which tends to his disgrace or disadvantage. (i) d See stat. 2 Hen. V. st. 2. c. 3. 8 Hen. VI. c. 29. e Finch. L. 401. f In the nembda, or jury of the ancient Goths, three challenges only were allowed to the favour, but the principal challenges were indefinite. "Licebat palam excipere, et semper ex probabili causa tres repudiari ; etiam plures ex causa praegnanti et manifesta." (Stiernhook, L. 1. c. 4) h Ibid. 158. b. (20) See tit. Challenges, ante, 356. note (5). g Co, Litt. 158, Besides these challenges, which are exceptions against the fitness of jurors, and whereby they may be excluded from serving, there are also other causes to be made use of by the jurors themselves, which are matter of exemption; whereby their service is excused, and not excluded.22 As by statute West. 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 & 8 W. III. c. 32. infants under twenty-one. This exemption is also extended by divers statutes, customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impanelled, must shew their special exemption. Clergymen are also usually excused, out of favour and respect to their function: but, if they are seised of lands and tenements, they are in strictness liable to be impanelled in respect of their lay-fees, unless they be in the service of the king or of some bishop: “in obsequio domini re"gis, vel alicujus episcopi." (i) If by means of challenges, or other cause, a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales." A tales is a supply of such men as are summoned upon the first panel, in order to make up the deficiency. For this purpose, a writ of decem tales, octo tales, and the like, was used to be issued to the sheriff at common law, and must be still so done at a trial at bar, if the jurors make default. But at the assises or nisi prius, by virtue of the statute 35 Hen. VIII. c. 6. and other subsequent statutes, the judge is em- [365] powered at the prayer of either party to award a tales de circumstantibus, (j) of persons present in court, to be joined to the other jurors to try the cause; who are liable, however, to the same challenges as the principal jurors. This is usually done, till the legal number of twelve be completed; in which patriarchal and apostolicaln umber sir Edward Coke (k) hath discovered abundance of mystery. (1) When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence and hence they are denominated the jury, jurata, and jurors, sc. juratores. We may here again observe, and observing we cannot but admire, how scrupulously delicate, and how impartially just the law of England approves · itself, in the constitution and frame of a tribunal, thus excellently contrived for the test and investigation of truth; which appears most remarkably, 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In its caution against all partiality and bias, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shewn of malice or favour to either party. The prodigious multitude of exceptions or challenges allowed to jurors, who are the judges of fact, amounts nearly to the same thing as was practised in the Roman republic, before she lost her liberty that the select judges should be appointed by the prætor with the mutual con- [366] j Append. No. II. § 4. k 1 Inst. 155. i F. N. B. 166. Reg. Brev. 179. 1 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, 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." (Dis sert, epistolar. 49.) Spelm. Gloss. 329. sent of the parties. Or, as Tully (m) expresses it: "neminem volue"runt majores nostri, non modo de existimatione cujusquam, sed ne pe "cuniaria quidem de re minima esse judicem : nisi qui ipter adversarios "convenisset." Indeed these selecti judices bore in many respects a remarkable resem. blance to our juries: for they were first returned by the prætor; de decuria senatoria conscribuntur : then their names were drawn by lot, till a certain number was completed: in urnam sortito mittuntur, ut de pluribus necessarius numerus confici posset; then the parties were allowed their chal. lenges: post urnam permittitur ac cusatori,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 legiti mus numerus compleretur : lastly, the judges, like our jury, were sworn : his perfectis, jurabant in leges judices, ut obstricti religione judicarent. (n) The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impanelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue. For the issue is said to lie, and proof is always first required, upon that side which affirms the matter in question: in which our law agrees with the civil; (o) "ei incumbit probatio qui dicit, non qui negat; cum per rerum naturam factum-negantis probatio nulla sit." The opening counsel briefly informs them what has been transacted in the court above; the parties, the nature of the action, the declaration, the plea, replication. and other proceedings; and lastly, upon what point the issue is joined, which is there set down to be determined. Instead [367] of which (p) formerly the whole record and process of the plead ings was read to them in English by the court, and the matter in is sue 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. 24 The nature of my present design will not permit me to enter into the numberless niceties and distinctions of what is, or is not, legal evidence to a jury. (q) 2 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 for debt, when the defendant denies his bond by the plea of non est factum, and the issue is, whether it be the defendant's m pro Cluentio. 48. n Ascon. in Cic. Ver. 1. 6. A learned writer of our own, Dr. Pettingal, hath shewn in an elaborate work (published A. D. 1769) so many resemblances between the dixaGraι of the Greeks, the judices selecti of the Romans, and the juries of the English, that he is tempted to conclude that the latter are derived from the former. o Ff. 22. 3. 2. Cod. 4. 19.23. p Fortesc. c. 26. q This is admirably well performed in lord chief baron Gilbert's excellent treatise of evidence; a work which it is impossible to abstract or abridge, without losing some beauty and destroying the chain of the whole; and which hath lately been engrafted into a very useful work, the introduction of the law of nisi prius, 4to. 1767. (24) See in general, Com. Dig. Evidence; Bạc. Ab. Evidence; Peake, Phillips, and Starkie on Evidence, per tot. : 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; 25 but 3. Modern deeds, and 4. Other writings, must be attested and verified [368] 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.26 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 life-time but such evidence will not be received of any particular facts." So too, books of account, or shop-books, are not allow (25) The same rule applies to wills_thirty years old. 4 T. R. 709. note. This rule is laid down in books of evidence without sufficient explanation of its principle, or of the extent of its application. There seems to be danger in permitting a deed to be read merely because it bears date above thirty years before its production, and in requiring no evidence, where a forgery may be committed with the least probability of detection. Chief Baron Gilbert lays down, that where possession has gone agreeably to the limitations of a deed bearing date thirty years ago, it may be read without any evidence of its execution, though the subscribing witnesses be still living. Law of Ev. 94. For such possession affords so strong a presumption in favour of the authenticity of the deed, as to supersede the necessity of any other proof of the validity of its origin, or of its due execution. The court of king's bench have determined that the mere production of a parish certificate, dated above thirty years ago, was sufficient to make it evidence, without giving any account of the custody from which it was extracted. 5 T. R. 259. Mr. Christian's note. (26) No rule of law is more frequently cited, and more generally misconceived, than this. It is certainly true when rightly understood; but it is very limited in its extent and application. It signifies nothing more than that, if the best legal evidence cannot be possibly produced, the next best legal evidence shall be admitted. Evidence may be divided into primary and secondary ; and the secondary evidence is as accurately defined by the law as the primary. But in general the want of better evidence can never justify the admission of hearsay, interested witnesses, or the copies of copies, &c. Where there are exceptions to general rules, these exceptions are as much recognized by the law as the general rule: and where boundaries and limits are established by the law for every case that can possibly occur, it is immaterial what we call the rule, and what the exception. Mr. Christian's note. (27) It is a general rule that the mere recital of a fact, that is, the mere oral assertion or written entry by an individual, that a particular fact is true, cannot be received in evidence. But the objection does not apply to any public documents made under lawful authority, such as gazettes, proclamations, public surveys, records, and other memorials of a similar description, and whenever the declaration or entry is in itself a fact, and is part of the res gestae. Stark on Evid. p. 1. 46, 7. But it is to be carefully observed, that neither the declaration, nor any other acts of those who are mere strangers, or as it is usually termed, any res inter alios acta, is admissible in evidence against any one, as affording a presumption against him in the way of admission, or otherwise. Ib. 51. In cases of customs and prescriptive rights, hearsay or traditional evidence is not admitted until some instances of the custom or exercise of the right claimed are first proved. The declarations of ed of themselves to be given in evidence for the owner; but a servant who made the entry may have recourse to them to refresh his memory; and, if such servant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence : (r) for as tradesmen are often under a necessity of giving credit without any note or writing, this is therefore, when accompanied with such other collateral proofs of fairness and regularity, (s) the best evidence that can be then produced. However this dangerous species of evidence is not carried so far in England as abroad; (t) where a man's own books of accounts, by a distortion of the civil law (which seems to have meant the same thing as is practised with us) (u) with the suppletory oath of the merchant, amount at all [369] times to full proof. But as this kind of evidence, even thus regulat ed, would be much too hard upon the buyer at any long distance of time, the statute 7 Jac. 1. 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 unravelled and adjusted. 28 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 testifican s Salk. 285. t Gail, observat. 2. 20. 23. r Law of nisi prius, 266. u Instrumenta domestica, seu adnotatio, si non aliis quoque adminiculis adjuventur, ad probationem solá non sufficiunt. (Cod. 4. 19. 5.) Nam exemplo perniciosum est, ut ei scripturae credatur, qua unusquisque sibi adnotatione propria debitorem constituit. (Ibid. l. 7.) parents respecting their marriage, and the legitimacy of their children, are admitted after their deccase as evidence. And hearsay is also received respecting pedigrees and the death of rela tions abroad. Bull. N. P. 294. 2 Esp. 784. What has been said in conversation in the hearing of any party, if not contradicted by him, may be given in evidence; for, not being denied, it amounts to a species of confession. But it can only be received where it must be presumed to have been heard by the party, and therefore in one case the court stopped the witness from repeating a conversation, which had passed in a roon where the prisoner was, but at the time while she had fainted away. It has been the practice of the quarter-sessions to admit the declarations of paupers respecting their settlements, to be received as evidence after their death, or if living, where they could not be produced. See 3 T. R. 707. where the judges of the king's bench were divided upon the legality of this practice, and where the subject of hearsay evidence is much discussed. For many years, whilst lord Mansfield presided in the court of king's bench, the court were unanimously of opinion, that the declarations of a pauper respecting his settlement might, after his death, be proved and given in evidence. When ford Kenyon and another judge were introduced, the court were divided, and the former practice prevailed; but when the court were entirely chang ed, they determined that this hearsay evidence was not founded on any principles of law, and that the evidence at the quarter-sessions in the cases of settlement, ought to be the same as that in all other courts, in the trials which could respectively be brought before them. 2 East, 54 & 63. The court of king's bench has decided, that a father's declaration of the place of the birth of his son is not evidence after the father's death. 8 East, 539. But it would not, probably, be difficult to prove, that this is of the nature of pedigree, and ought to be admitted, as the father's declaration of the time of his son's birth, which has always been legal evidence.-In criminal cases, the declarations of a person, who relates in extremis, or under an apprehension of dying, the cause of his death, or any other material circumstance, may be admitted in evidence; for the mind in that awful state is presumed to be under as great a religious obligation to disclose the truth, as is created by the administration of an oath. But declarations of a deceased person ought not to be received, unless the court is satisfied, from the circumstances of the case, that they were made under the impression of approaching dissolution. Leach's Cases, 400. But the declarations of a felon at the place of execution cannot be received, as he is incompetent to give evidence upon oath; and the situation of a dying man is only thought equivalent to that of a competent witness, when he is sworn. Ibid. 276. By the 1 & 2 Ph. & Mar. c. 13. depositions taken before a justice of peace in cases of felony, may be read in evidence at the trial, if the witness dies before the trial. But as the statute confines this to felony, and as it is an innovation upon the common law, it cannot be extended to any misdemeanor. 1 Salk. 281.—Mr. Christian's note. (28) The cutries in the more avail than hearsay. evidence for his successor. book of a person deceased, not connected with the parties, are of no But the books of an incumbent, respecting the tithes of the parish, are 5 T. R. 125. 2 Ves. 43, |