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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 (20). 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 [*363] 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then he and the two triors shall try the next; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest (g) (21).
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; or to (*364] be branded, *whipt, or stigmatized; or if he be outlawed or ex
communicated, or hath been attainted of false verdict, praemunire, (d) See stat. 2 Hen. V. st. 2, c. 3. 8 Hen. VI. C. but the principal challenges were indefinite. “ Li
cebal palam ercipere, et semper er probabili causa (e) Finch, L. 401.
tres repudiari : etiam plures ex causa praegnanti et (f) In the nembda, or jury of the ancient Goths, manifesta." (Stiernhook, I. 1, c. 4.) three challenges only were allowed to the favour, (g) Co. Litt. 153.
(20), The qualifications in England are en. deny what is alleged for matter of challenge ; larged by 6 Geo. IV. c. 50: as to New-York, and it is then only that triers can be appointsee 2 R. S. 411, $ 12, &o.
ed. It was also thereby determined, that the (21) The question of challenge to the ar. whole special jury panel cannot be challenged ray, and incidentally to the polls and triers, for the supposed unindifferency of the Master underwent much discussion in The King v. of the Crown Office, he being the officer of Edmonds, 4 B. & A. 476; and in that case it the court appointed to nominate the jury. was determined that no challenge, either to And a material point was also ruled in the the array or to the polls, can be taken until a full same case, namely, that it is not competent to jury shall have appeared ; that the disallow- ask jurymen, whether special or talesmen, ing a challenge is not a ground for a new trial, whether they have not, previously to the trial, but for a venire de novo; that every challenge, expressed opinious hostile to the defendants either to the array or to the polls, ought to be and their cause, in order to found a challenge propounded in such a way that it may be put to the polls on that ground; but such expres. at the time upon the nisi prius record, so that, sions must be proved by extrinsic evidence, when a challenge is made, the adverse party But see now stat. 6 Geo. IV. c. 50, ss. 27. 89. may either demur or counterplea, or be may
or forgery ; or lastly, if he hath proved recreant when champion in the trial by battle, and thereby hath lost his liberam legem. A juror may himself be examined on oath of vori dire, veritatem dicere, with regard to such causes or challenge as are not to his dishowur or discredit ; but not with regard to any crime, or any thing which tends to his disgrace or disadvantage (h).
Besides these challenges, which are exceptions against the fitness of jurors, and whereby they may be excluded from serving, there are also other causes to be made use of by the jurors themselves, which are matter of exemption ; whereby their service is excused, and not excluded. As by statute 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 regis, vel alicujus episcopi (i) (22).”
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 apostolical number 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 (h) Co. Litt. 158. 6.
who attributes the introduction of this number to (1) F. N. B. 166. Reg. Brev. 179.
the Normans, tells us that among the inhabitants (3) Appendix, No. II. 4.
of Norway, from whom the Normans as well as (ki i Inst. 155.
the Danes were descended, a great veneration (1) Pausanias relater, that at the trial of Mars, was paid to the number twelve : " nihil sanctius, for murder, in the court denominated Areopagus nihil antiquius fuit; perinde ac si in ipso hoe nufrom that incident, he was acquitted by a jury mero secreta quaedam essel religio." (Dissert. episcomposed of twelve pagan deities. And Dr. Hickes, tolar. 49.) Spelm. Gloss. 329.
(22) They are now excused by 6 Geo. IV. c. 50.
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 [*366] consent of the parties. *Or, as Tully (m) expresses it : "nemi
nem voluerunt majores nostri, non modo de eristimatione cujusquam, sed ne pecuniaria quidem de re minima, esse judicem : nisi qui inter adversarios convenisset."
Indeed these selecti judices bore in many respects a remarkable resemblance to our juries : for they were first returned by the prætor : de decuria senatoria conscribuntur : then their names were drawn by lot, till a certain number was completed : in urnam sortito mittuntur, ut de pluribus necessarius numerus confici posset : then the parties were allowed their challenges; post urnam permittitur accusatori, ac reo, ut ex illo numero rejiciant quos putaverint sibi, aut inimicos, aut ex aliqua re incommodos fore: next they struck what we call a tales ; rejectione celebrata, in eorum locum qui rejecti fuerunt subsortiebatur praetor alios, quibus ille judicum legitimus numerus compleretur; lastly, the jugdes, like our jury, were sworn; his prefectis, 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 (0); "ei incumbit probatio, qui dicit, non qui negat ; cum per rerum naturam factum-negantis probatio nulla sit.” The opening counsel briefly informs them what has been transacted in the court above ; the parties, the nature of the action, the declaration, the plea, replication, and other proceedings, and lastly, upon what point the issue is joined, which is there set down to be determined. Instead of
which (p) formerly the whole record and process of the pleadings. [*367] 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.
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 (7). 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 (m) pro Cluentio, 43.
(9) This is admirably well performed in lord chief our own, Dr. Pettingal, hath shewn in an elaborate work (published A. D. 1796.) so many resem- work which it is impossible to abstract or abridge, blances between the dicas:ai of the Greeks, the without losing some beauty and destroying the judices selecti of the Romans, and the juries of the chain of the whole ; and which hath lately been English, that he is tempted to conclude that the engrafted into a very useful work, the introduction latter are derived from the former.
of the law of nisi prius, 4to 1767. (0) Ff. 22, 3, 2. Cod. 4, 19. 23.
(p) Fortesc. c. 20.
(n) Ascon. in Cic. Ver. 1. 6. A learned writer of
baron Gilbert's excellent treatise of evidence ; a
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 (23); but 3. Modern deeds, and 4. Other *writings, must be attested and [*368] 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 (24). 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
(23) The same rule applies to wills thirty ceptions to general rules, these exceptions are years old. 4 T. R. 709. note. This rule is as much recognized by the law as the general laid down in books of evidence without suffi- rule ; and where boundaries and limits are escient explanation of its principle, or of the tablished by the law for every case that can extent of its application. There seems to be possibly occur, it is immaterial what we call danger in permitting a deed to be read merely ihe rule, and what the exception. because it bears date above thirty years before Some of the numerous cases which are its production, and in requiring no evidence, found even in modern books may be cited for where a forgery may be committed with the illustration and in confirmation of the text and least probability of detection. Chief Baron note. Gilberi lays down, that where possession has If the subscribing witness be living and gone agreeably to the limitations of a deed within the jurisdiction of the court, he must bearing date thirty years ago, it may be read be called to prove the execution; or if he can. witbout any evidence of its execution, though not be found, and that fact be satisfactorily the subscribing witnesses be still living. Law explained, proof of his hand-writing will be of Ev. 94. For such possession affords so sufficient evidence of the execution. Barnes strong a presumption in favour of the authen. v. Trompousky, 7 T. R. 266. And the witticity of the deed, as to supersede the necessi- ness of ihe execution is necessary; acknow. ty of any other proof of the validity of its ledgment of the party who executed the deed origin, or of its due execution. The court of cannot be received. Johnson v. Mason, 1 king's bench have determined that the mere Esp. 89. At least only as secondary evidence. production of a parish certificate, dated above Call, Bart. v. Dunning, 4 East, 53. And ac. thirty years ago, was sufficient to make it knowledgment to a subscribing witness by an evidence, without giving any account of the obligor of a bond that he has executed it, is custody from which it was extracted. 5 T. sufficient. Powell v. Blackett, 9 Esp. 87; and R. 259.
see Grellier v. Neale, Peake, 146. But a mere (24) No rule of law is more frequently bystander may not be received to supply the cited, and more generally misconceived, than absence of the subscribing witness, M Craio this. It is certainly true when rightly under. v. Gentry, 3 Camph. 232, or only as secondastood ; but it is very limited in its extent and ry evidence, see the next case. application. Il signifies nothing more than rent attesting witness deny that he saw ibe that, if the best legal evidence cannot possibly execution, secor.dary evidence is admissible ; be produced, the next best legal evidence shall that is to say, the hand-writing of the obligor, be admitted. Evidence inay be divided into &c. may be proved. Ley v. Ballard, 3 Esp. primary and secondary ; and the secondary 173. n. "And, as a general rule, it seems that evidence is as accurately defined by the law wherever a subscribing witness appears to an as the primary. But in general the want of instrument, note, &c, he must be called or his better evidence can never justify the admis- absence explained. See Higgs v. Diron, 2 sion of hearsay, interested witnesses, or the Siark. 180. ^ Breton v. Cope, Peake, 31. copies of copies, &c. Where there are ex
If the appa
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 repule), 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 (25). So too, books of account, or shopbooks, are not allowed of themselves to be given in evidence for the owner; but a servant who made the entry may have recourse to them to refresh his memory ; and, if such servant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence (r): for as tradesmen are often under a necessity of giving credit without any note or writing, this is therefore, when accompanied with such
(r) Law of nisi prius, 266.
(25) It is a general rule that the mere re- king's bench, the court were unanimously of cital of a fact, that is, the mere oral assertion opinion, that the declarations of a pauper' re. or written entry by an individual, that a par. specting his settlement might, after his death, ticular fact is true, cannot be received in evi. be proved and given in evidence. When lord dence. But the objection does not apply to Kenyon and another judge were introduced, any public documents made under lawful au- the court were divided, and the former prac. thority, such as gazettes, proclamations, pub- tice prevailed; but when the court were en. lic surveys, records, and other memorials of a tirely changed, they determined that this hear. similar description, and whenever the declara. say evidence was not founded on any princition or entry is in itself a fact, and is part of ples of law, and that the evidence at the quar. the res gestae. Stark. on Evid. p. 1. 46, 7. ier-sessions in the cases of seulement, ought But it is to be carefully observed, that neither to be the same as that in all other courts, in the declarations, nor any other acts of those the trials which could respectively be brought who are mere strangers, or as it is usually before them. 2 East, 54 & 63.–The court of termed, any res inter alios acta, is admissible king's bench has decided, that a father's de. in evidence against any one, as affording a claration of the place of the birth of his son presumption against him in the way of admis- is not evidence after the father's death. 8 sion, or otherwise. Ib. 51.
East, 539. But it would not, probably, be In cases of customs and prescriptive rights, difficult to prove, that this is of the nature of hearsay or traditional evidence is not admitted pedigree, and ought to be admitted, as the fa. until some instances of the custom or exer. ther's declaration of the time of his son's cise of the right claimed are first proved. birth, which has always been legal evidenceThe declarations of parents respecting their In criminal cases, the declarations of a per. marriage, and the legitimacy of their chil. son, who relates in extremis, or under an apdren, are admitted after their decease as evi• prehension of dying, the cause of his death, dence. And hearsay is also received respect. or any other material circumstance, may be ing pedigrees and the death of relations admitted in evidence; for the mind in that abroad. Bull. N. P. 294. 2 Esp. 784. Whai awful state is presumed to be under as great has been said in conversation in the hearing a religious obligation to disclose the truth, as of any party, if not contradicted by him, may is created by ihe administration of an oath. be given in evidence ; for, not being denied, But declarations of a deceased person ought it amounts to a species of confession. But it not to be received, unless the court is satisfied, can only be received where it must be pre- from the circumstances of the case, that they sumed to have been heard by the party, and were made under the impression of approach. therefore in one case the court stopped the ing dissolution. Leach's Cases, 400. But witness from repeating a conversation, which the declarations of a felon at the place of exehad passed in a room where the prisoner was, cution cannot be received, as he is incompebut at the time while she had fainted away. tent to give evidence upon oath ; and the si. It has been the practice of the quarter-ses- tuation of a dying man is only thought equiva. sions to admit the declarations of paupers re- lent to that of a competent witness, when he specting their settlements, to be received as is sworn. Ibid. 276. By the 1 & 2 Ph. & eviderice after their death, or if living, where Mar. c. 13. depositions taken before a justice. they could not be produced. See 3 T. R. of peace in cases of felony, may be read in 707. where the judges of the king's bench evidence at the trial, if the witness dies bewere divided upon the legality of this prac. fore the trial. But as the statute confines this tice, and where the subject of hearsay evi- to felony, and as it is an innovation upon the dence is much discussed. For many years, common law, it cannot be extended to any whilst lord Mansfield presided in the court of misdemeanor. 1 Salk. 281.