an hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it. These six species of trials, that we have considered in the present chapter, are only had in certain special and eccentrical cases; where the trial by the country, per pais, or by jury, would not be so proper or effectual. In the next chapter we shall consider at large the nature of that principal criterion of truth in the law of England. [*349] *CHAPTER XXIII. OF THE TRIAL BY JURY. 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 hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. History of. Some authors have endeavoured 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 Nicholson (a) 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. (b) In England we find actual mention of them so early as the laws of King Ethelred, and that not as a new invention. (c) Stiernhook (d) ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was cotemporary 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 [*350] genius of Alfred the Great; to whom, on account of his having done much, it is usual to attribute every thing; and as the tradition of ancient Greece placed to the account of their own 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.1 Its estab (a) De jure Saxonum, p. 12. (c) Wilk. LL. Angl. Sax. 117. (b) Sp. L. b. 30, c. 18. Capitul. Ludd. pii. A. D. 819, c. 2. (d) De jure Sueonum, l. Î, c. 4. 1 For an account of trial by jury among the northern nations, see History of Trial by Jury, by William Forsyth. As to the method of trial at Athens by dicasteries faintly resembling our juries, see Grote, Hist. Greece, vol. v, ch. 46. lishment 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 so 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 chapter 29, that no freeman shall be hurt in either his person or property; "nisi per legale judicium parium suorum vel per legem terra" (unless by the lawful judgment of his peers, or by the law of the land). A privilege which is couched in almost the same words with that of the emperor Conrad, two hundred years before: (e) "nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suorum" (no one shall be deprived of his property, but according to the custom of our predecessors, and by the judgment of his peers). 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. Two kinds.-*Trials by jury in civil cases are of two kinds; extraordinary and ordinary. The extraordinary I [*351] shall only briefly hint at, and confine the main of my observations to that which is more usual and ordinary. The grand assize.- 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 assiza eligenda (of choosing the grand assize) is directed to the sheriff, (f) to return four knights, who are to elect and choose twelve others to be joined with them, in the manner mentioned by Glanvil; (g) 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 now consist of sixteen jurors. (h)1 On attaint. 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:2 of which we shall speak more largely in a subsequent chapter. At present I shall only observe, (e) LL. Longob. l. 3, t. 8, l. 4. (f) F. N. B. 4. 1 This mode of trial is abolished. (g) L. 2, c. 11, 21. 2 Abolished by 6 Geo. IV, c. 50, s. 60. 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. Joining issue. *When, therefore, an issue is joined, by [*352] 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."1 Summoning the jury.-The court awards a writ of venire facias (that you may cause to come) 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." (2) And such writ was 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 then never happened but in matters of weight and consequence, all trifling suits being ended in the court-baron, hundred, or county courts: and indeed 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 burthen to compel the parties, witnesses, and jurors, to come from Westmoreland, perhaps, or Cornwall, to try an action of assault at Westminster. A practice, therefore, very early obtained, of continuing the cause from term to term, in the court above, provided the justices in eyre did not previously come into the county where the cause of action arose; (j) and if it happened that they arrived there within that interval, then the cause was removed from the jurisdiction of the justices at Westminster to that of the justices in eyre. Afterwards, when the justices in eyre were superseded by the modern justices of assize (who came twice or thrice in the year into the several counties, ad capiendas assisas, to take or try writs of assize, of mort d' ancestor, novel disseisin, nuisance, and the like), a power [*353] was superadded by statute Westm. 2, 13 Edw. I, c. 30, to these justices of assize to try common issues in trespass, and other less important suits, with direction to return them (when tried) into the court above, where alone the judgment should be given. And as only the trial, and not the determination of the cause, was now intended to be had in the court below, therefore the clause of (i) Appendix, No. II, § 4. (J) Semper dabitur dies partibus a justiciariis de banco, sub tali conditione, “nisi justiciarii itinerantes prius venerint ad partes illas." Bract. 1. 3, tr. 1, c. 11, § 8. [This latter is called the similiter.] nisi prius (unless before) was left out of the conditional continuances before mentioned, and was directed by the statute to be inserted in the writs of venire facias; that is, "that the sheriff should cause the jurors to come to Westminster (or wherever the king's court should be held) on such a day in Easter and Michaelmas terms; nisi prius, unless before that day the justices assigned to take assize 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 vacations before Easter and Michaelmas terms; and there the trial was had. An inconvenience attended this provision: 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 gaol 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 in almost every civil cause the clause 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. Return of the venire. 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. [*354] Compelling attendance. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum (that you have the bodies of the jurors), and in the king's bench a distringas (that you distrain), 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, (k) "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 4th 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." And thereupon the writ commands the sheriff 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 4th 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 hath been said) (1) are usually two of the judges of the courts of 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, which was in its original only a collateral incident to the original business of the justices of assize, is now, by the various revolutions of practice, become their principal civil employment: hardly anything remaining in use of the real assize but the name. When sheriff of kin or interested. If the sheriff be not an indifferent person; as if he be a party in the suit, or be related either by 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 sheriff and coroner are objectionable. 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, [*355] and sworn. (m) And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array. Precaution insuring impartiality.-Let us now pause awhile, and observe (with Sir Matthew Hale) (n) 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 wilful 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 many 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 pleading is transacted at Westminster, whereby the order and uniformity of proceedings is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one 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 (m) Fortesc. de Laud. LL. c. 25. Co. Litt. 158. 1 Now seven. (n) Hist. C. L. c. 12. |