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recover the very thing detained, an action of trespass on the case in trover and conversion is usually brought; wherein, though the horse or other specitic [*348] chattel cannot be had, yet the defendant shall pay damages for the conversion equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account, a bill in equity is usually filed; wherein, though the defendant answers upon his oath, yet such oath is not conclusive to the plaintiff: but he may prove every article by other evidence, in contradiction to what the defendant has sworn. So that wager of law is quite out of use, being avoided by the mode of bringing the action; but still it is not out of force. And therefore, when a new statute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, in which no wager of law shall be allowed: otherwise 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.



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. 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 [*350] superior 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 a counts of the one give us also some traces of the other. (1) Its establishment

7) 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. 1, c. 4.

(1) [The Athenians, according to Sir Wm. Jones, had trials by jury. Sir Wm. Jones on Bailment, 74.]

For an account of trial by jury among the northern nations, see History of Trial by Jury, by William Forsyth.

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 curta 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 terræ." 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 secuntum consuetudinem antecessorum nostrorum et per judicium parium suorum? 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 nethod of trial; but shall proceed to the dissection and examination of it in all ts 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 13 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.

*Trials by jury in civil causes are of two kinds; extraordinary and ordin try. The extraordinary I shall only briefly hint at, and confine [ *351 ] the main of my observations to that which is more usual and ordinary. 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 duelling. For this purpose a writ de magna assisa eligenda 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 descriing 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) (2)

Anothe 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: (3) of which we shall speak more largely in a subsequent chapter. At present Í shall only observe, that this jury is to consist of twenty-four of the best men in the country, 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.


*When, therefore, an issue is joined, by these words, " and this the said A prays may be inquired of by the country," or, "and of this he puts [ *352] himself upon the country, and the said B does the like," the court awards a writ of venire facias 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 (e) LL. Longob. l. 3, t. 8, l. 4. (f) F. N. B. 4. (g) L. 2, c. 11, 21. (h) Finch, L. 412. 1 Leon. 303.

(2) [As the writ of right has been abolished, this mode of trial can no longer be resorted to. (3) Abolished by 6 Geo. IV, c. 50, s. 60.

VOL. II.-28


the truth of the issue between the said parties."() 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 m 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 Cornwell, 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 assists, to take or try writs of assize, of mort d' ancestor, novel disseisin, nuisance, and the like), a power was superadded by [*353 ] 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 nisi prius 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 termis; 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 vacation before Easter and Michaelmas terms; and there the trial was had.

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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 nist 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.

For now the course is to make the sheriff's renire 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, [*354] not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum, and in the king's bench a distringas, commanding the sheriff to have their bodies or to distrain them y 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,

(i) Appendix. No. II. § 4.

(1) 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, í 5. (k) Appendix, Ño. II, § 4.

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 the 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) (7) are usually two of the judges of the courts of Westminster, the whole kingdom being divided into six circuits, (4) for this purpose. And thus we may observe that the trial of common issues, at nisi prius, which was in its original only a collaterial incident to the original business of the justices of assize, is now, by the various revolutions of practice, become their principal civil employment: hardly any thing (5) remaining in use of the real assizes but

the name.

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 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, and sworn. (m) And these two, who are called elisors, or electors, shall indifferently name the jury, and their [*355] return is final; no challenge being allowed to their array.

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 copora) 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 proceeding 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 where most of them inhabit. Fourthly, the persons before whom they are to appear, and before whom the trial is to be held, are the judges of the superior court.

(See page 59.

(m) Fortesc, de Laud. LL. c. 25. Co. Litt. 158.

[ *356]

(n) Hist. C. L. c. 12.

(4) Now seven. (5) [These several writs, generally called the "jury process." are now, however, abolished, and the jurors are summoned by the sheriff for the commission day, in virtue of a precept issued to him for that purpose by the judges of assize; a panel of the jurors so summoned being made and kept in the sheriff's office, for inspection, seven days before the commission day, and a copy of it annexed to the record. Com. Law Proc. Act, 1852.]

if it be a trial at bar; or the judges of assize, delegated from the courts at Westminster by the king, if the trial be held in the country: persons, whose learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no small influence upon the multitude. The very point of their being strangers in the county is of infinite service, in preventing those factions and parties which would intrude in every cause of moment, were it tried only before persons resident on the spot, as justices of the peace, and the like. And the better to remove all suspicion of partiality, it was wisely provided by the statutes 4 Edw. III, c. 2, 8 Ric. II, c. 2, and 33 Hen. VIII, c. 24, that no judge of assize should hold pleas in any county wherein he was born or inhabits. (6) And as this constitution prevents party and faction from intermingling in the trial of right, so it keeps both the rule and the adminis tration of the laws uniform. These justices, though thus varied and shifted at every assizes, are all sworn to the same laws, have had the same education, have pursued the same studies, converse and consult together, communicate their decisions and resolutions, and preside in those courts which are mutually connected and their judgments blended together, as they are interchangeably courts of appeal or advice to each other. And hence, their administration of justice and conduct of trials are consonant and uniform; whereby that confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment. But let us

now return to the assizes.

When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assizes, and enter it with the proper officer, in order to its being called on in course. If it be not so entered, it cannot be tried; therefore it is in the plaintiff's breast to delay any trial by not carrying down the record: unless the defendant, being fearful of such neglect in the plaintiff, and willing to discharge himself from the action, will himself under[*357] take to bring on the trial, giving proper notice to the plaintiff. Which proceeding is called the trial by proviso; by reason of the clause then inserted in the sheriff's venire, viz., “proviso, provided that if two writs come to your hands (that is, one from the plaintiff and another from the defendant), you shall execute only one of them." But this practice hath begun to be disused, since the statute 14 Geo. II, c. 17, which enacts, that if, after issue joined, the cause is not carried down to be tried according to the course of the court, the plaintiff shall be estcemed to be nonsuited, and judgment shall be given for the defendant as in case of a nonsuit. In case the plaintiff intends to try the cause, he is bound to give the defendant (if he lives within forty miles of London) eight days' notice of trial; and, if he lives at a greater distance, then fourteen days' notice, in order to prevent surprise: and if the plaintiff then changes his mind, and does not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by the same last-mentioned statute. The defendant, however, or plaintiff, may, upon good cause shown to the court above, as upon absence or sickness of a material witness, obtain leave upon motion to defer the trial of the cause till the next assizes. (7)

But we will now suppose all previous steps to be regularly settled, and the cause to be called on in court. The record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive process, the writ of habeas corpora, or distringas, with the panel of jurors annexed, to the judge's officer in court. The jurors contained in the

(6) This is no longer the law.

(7) This statute, so far as relates to judgment as in case of a nonsuit, is repealed by the common law procedure act, 18:2, which however provides a mode in which a plaintiff, who unreasonably delays his suit, may be forced to proceed to trial, or have judgment for costs against


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