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To extricate itself out of which absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to the plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on which no sentence can be founded. To make up, therefore, the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath; and if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one. By this ingenious device, satisfying at once the forms of the Roman law, and acknowledging the superior reasonableness of the law of England: which permits one witness to be sufficient where no more are to be had: and, to avoid all [ *371 ] temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propri causa. (25)

Positive proof is always required, where from the nature of the case it appears it might possibly have been had. But next to positive proof, circumstantial evidence, or the doctrine of presumptions, must take place; for when the fact itself cannot be demonstratively evinced, that which comes nearest to the proof of the fact is the proof of such circumstances as either necessarily, or usually attend such facts; and these are called presumptions, which are only to be relied upon till the contrary be actually proved. Stabitur præsumptioni donec probetur in contrarium. (y) Violent presumption is many times equal to full proof; (z) for there those circumstances appear which necessarily attend the fact. As if a landlord sues for rent due at michaelmas, 1754, and the tenant cannot prove the payment, but produces an acquittance for rent due at a subsequent time, in full of all demands, this is a violent presumption of his having paid the former rent, and is equivalent to full proof; for though the actual payment is not proved, yet the acquittance in full of all demands is proved, which could not be without such payment; and it therefore induces so forcible a presumption, that no proof shall be admitted to the contrary. (a) (26) Probable presumption, arising

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(25) In equity a rule apparently somewhat different prevails in a certain class of cases. If the complainant calls for an answer from the defendant on oath, he thereby makes the answer evidence in the cause; and as it is evidence called for by himself, it is allowed to have the same weight in the case as the testimony of any other witness, and therefore the complainant, who is bound to make out his case, cannot have a decree against an answer denying the equity of the bill, unless he overcomes the answer with the testimony of two witnesses, or at least of one witness and strong supporting circumstances. 1 Greenl. Ev. § 260. Where, however, by statute, the parties in chancery are made competent witnesses generally, and may be orally oxamined, it would seem that this rule is substantially done away with. Roberts v. Miles, 12 Mich. 297. See however Vandegrift v. Herbert, 3 Green. N. J. 466. In high treason two witnesses are essential in England, and in the United States by the constitution. Art. 3, § 3. Two are also necessary in cases where perjury is charged. But in other cases, if the evidence is competent, the jury must be the judges how much weight it is entitled to. 1 Phil. Ev. 1, 2; 1 Stark Ev. 533. (26) [Presumptions are of three kinds; 1st. Legal presumptions, made by the law itself; 2dly. Legal presumptions to be made by a jury, of law and fact; 3dly. Natural presumptions, or presumptions of mere fact.

1st. Legal presumptions are in some cases absolute, as that a bond or other specialty was executed upon a good consideration (4 Burr. 2225), so long as the deed or bond remains unimpeached; but it may be impeached on the ground of fraud, and then the consideration becomes the subject of inquiry. But in the case of bills of exchange, the presumption that it was accepted for a good consideration may be rebutted by evidence. So where a fine has been levied. it will be implied that it was levied with proclamation (3 Co. 86, b), unless rebutted (Bul. N. P. 229), and some other like instances; but the presumption in favour of innocence is, and has been held, too strong to be overcome by any artificial intendment of law. 2 B. and A. 356. 2d, Presumptions of law and fact, as that the adverse enjoyment unquestioned for twenty years, of an incorporeal hereditament, presumes a grant; that a bond has been satisfied upon which no interest has been paid, nor other acknowledgment made of its existence for a like period: 2 Stra. 826; 2 Ld. Raym. 1370; that there has been a conversion of goods in the case of trover, where the defendant refuses to deliver them up. 3d. Natural presumptions. It is the peculiar province of the jury to deal with presumptions of this class; yet where the particular facts aro inseparably connected according to the usual course of nature, the courts themselves wild

from such circumstances as usually attend the fact, hath also its due weight: as if, in a suit for rent due in 1754, the tenant proves the payment of the rent due in 1755; this will prevail to exonerate the tenant, (b) unless it be clearly shown that the rent of 1754 was retained for some special reason, or that there was some fraud or mistake; for otherwise it will be presumed to have been paid before that in 1755, as it is most usual to receive first the rents of longest standing. Light, or rash, presumptions have no weight or validity at all. (27) [*372] *The oath administrated to the witness is not only that what he deposes shall be true, but that he shall also depose the whole truth: so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not. And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers, and before the judge and jury; each party having liberty to except to its compe.. tency, which exceptions are publicly stated and by the judge are openly and publicly allowed or disallowed, in the face of the country: which must curb any secret bias or partiality that might arise in his own breast. And if, either in his directions or decisions, he misstates the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of excep tions; stating the point wherein he is supposed to err: and this he is obliged to seal by statute Westm. 2, 13 Edw. I, c. 31, or, if he refuses so to do, the party may have a compulsory writ against him, (c) commanding him to seal it, if the fact alleged be truly stated: and if he returns, that the fact is untruly stated when the case is otherwise, an action will lie against him for making a false return. This bill of exceptions is in the nature of an appeal; examinable, not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below. But a demurrer to evidence shall be determined by the court, out of which the record is sent. This happens, where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law in which case the adverse party may if he please demur to the whole evidence; which admits the truth of every fact that has been alleged, but denies the sufficiency of them all in point of law to maintain or overthrow the issue; (d) which draws the question of law from the cognizance of the jury, to be decided (as it ought) by the court. But neither these demurrers to evidence, nor the bill of exceptions, are at present so much *in use as formerly; since [ *373 ] the more frequent extension of the discretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nisi prius. (28)

(b) Co. Litt. 373.

(c) Reg. Br. 182. 2 Inst. 427.

(d) Co. Litt. 72. 5 Rep. 101.

draw the inference, as when a child has been born within a few weeks after access of the husband, its bastardy will be inferred without the aid of a jury. 8 East, 193. All cases of circumstantial evidence may be more or less within this class. And it is obvious that the case put in the text belongs to this division, upon which Mr. Christian has made the following remark: "This can scarcely be correct; I should conceive that proof may be admitted to repel all presumptions whatever; and even if a receipt should be produced expressly for the rent of the year 1754, still the landlord might show that it had been obtained by mistake or fraud, and that no rent had been received at the time."]

A receipt, so far as it is a mere acknowledgment of payment and delivery, is always open to explanation or contradiction by parol evidence. 1 Greenl. Ev. § 305. And now by statute in some of the United States, a seal to a bond or other obligation, is only prima facie evidence of cousideration, which may be rebutted.

(27) [It is difficult to say what is light and rash presumption, if it is any presumption at all. Any circumstance may be proved from which a fair inference can be drawn, though alone it would betooslight to support the verdict of the jury, yet it may corroborate other testimony, and a number of such presumptions may become of importance.

(28) To obviate the hardships which frequently occurred where parties were defeated on trials at the circuit on account of defects in pleadings not material to the merits of the case, enlarged powers to permit amendments at the trial have been granted by several recent English statutes, and especially by the common law procedure act, 1852, and almost any defect may be amended by leave of the court, where the nature of the action or ground of defence is

This open examination of witnesses, viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth (e) than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law; where a witness may frequently depose that in private, which he will be ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken. Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge, during the examination, a matter of small importance: for, besides the respect and awe with which his presence will naturally inspire the witness, he is able, by use and experience, to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike, when their depositions are reduced to writing, and read to the judge, in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered, as from the matter of it. These are a few of the advantages attending this, the English, way of giving testimony, ore tenus. Which was also indeed [*374] familiar among the ancient Romans, as may be collected from Quintilian; (f) who lays down very good instructions for examining and cross-examining witnesses viva voce. And this, or somewhat like it, was continued as low as the time of Hadrian: (g) but the civil law, as it is now modelled, rejects all public examination of witnesses.

As to such evidence as the jury may have in their own consciences, by their private knowledge of facts, it was an ancient doctrine, that this had as much right to sway their judgment as the written or parol evidence which is delivered in court. And therefore it hath been often held, (h) that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors, to find according to their evidence, was construed (i) to be, to do it according to the best of their own knowledge. This seems to have arisen from the ancient practice in taking recognitions of assize, at the first introduction of that remedy; the sheriff being bound to return such recognitors as knew the truth of the fact, and the recognitors, when sworn, being to retire immediately from the bar, and bring in their verdict according to their own personal knowledge, without hearing extrinsic evidence or receiving any direction from the judge. (j) And the same doctrine (when attaints came to be extended to trials by jury, (29) as well as to recognitions of assize) was also applied to the case of common jurors; that they might escape the heavy penalties of the attaint, in case they could show, by any additional proof, that their verdict was

(e) Hale's Hist. C. L. 254. 255, 256.

(f) Institut. Orat. l. 5, c. 7.

(g) See his epistle to Varus, the legate or judge of Cilicia. "Tu magis scire potes, quanta fides sit habenda testibus; qui, et cujus dignitatis, et cujus æstimationis sint ; et qui simpliciter visi sint, dicere; utrum unum eundemque meditatum sermonem attulerint, an ad eaquæ interrogaveras extempore verisimilia re sponderint. Ff. 22.5.3. (

(h) Year-book. 14 Hen. VII. 29. (j) Bract. l. 4, tr. 1, c. 19, § 3.

Plowd. 12. Hob. 227. 1 Lev. 87. (i) Vaugh. 148, 149.
Flet. 7. 4, c. 9, § 2.

not changed, and the opposite party not likely to be misled. Amendments are permitted on such terms as the court thinks proper to impose. In the United States the statutes of amendments are generally very broad and liberal, and permit amendments for the furtherance of justice, in any state of the proceedings, and after judgment.

(29) Writs of attaint and assize are both abolished.

VOL. II.-30

233

agreeable to the truth, though not according to the evidence pro luced; with which additional proof the law presumed they were privately acquainted, though it did not appear in court. But this doctrine was again gradually

[ *375] exploded, when attaints began to be disused, and new trials introduced in their stead. For it is quite incompatible with the grounds upon which such new trials are every day awarded, viz., that the verdict was given without, or contrary to, evidence. And, therefore, together with new trials, the practice seems to have been first introduced (k) which now universally obtains, that if a juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court.

When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence.

The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict: and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For, by the golden bull of the empire, () if, after the congress is opened, the electors delay the election of a king of the Romans for thirty days, they shall be fed only with bread and water till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is finable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also, if they speak with either of the parties or their agents, after they are gone from the bar; or if they receive any fresh evidence [*376] in private; or if to prevent disputes they cast lots for whom they shall find; any of these circumstances will entirely vitiate the verdict. (30.) And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, (m) the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart. (n) This necessity of a total unanimity seems to be peculiar to our own constitution; (0) or, at least in the nembda or jury of the ancient Goths, there was required (even in criminal cases) only the consent of the major part; and in case of an equality, the defendant was held to be acquitted. (p) (31.)

(1) C. 2.

(k) Styl. 233. 1 Sid. 133.
(0) See Barrington on the Statutes, 19, 20, 21.

(m) Mirr. c. 4, § 24.

(n) Lib. Ass. fol. 40, pl. 1° (p) Stiern. l. 1. c. 4.

(30) That is, the court will set aside the verdict, on misconduct of this character being proven. But the misconduct must be made out by other evidence than that of the jurors themselves; for they will not be allowed to testify to it. Dana v. Tucker, 4 Johns. 487; Clum v. Smith, 5 Hill, 560. The general rule is that the evidence of jurors will not be received to impeach their verdict. Bridgewater v. Plymouth, 97 Mass. 382; Hann v. Wilson, 28 Ind. 296; Rutland Hathorn, 36 Ga. 380. See this principle limited in Wright v. Telegraph Co. 20 Iowa, 195.

(31) [The learned judge has displayed much erudition in the beginning of this chapter, to prove the antiquity of the trial by jury; but the trials referred to by the authors there cited, and even the judicium parium, mentioned in the celebrated chapter of magna charta, are trials which were something similar to that by a jury, rather than instances of a trial by jury according to its present established form. The judicium parium seems strictly the judgment of a subject's equals in the feudal courts of the king and barons. And so little appears to be ascertained by antiquarians respecting the introduction of the trial in criminal cases by two juries, that although it is one of the most important, it is certainly one of the most obscure and inexplicable, parts of the law of England.

The unanimity of twelve men, so repugnant to all experience of human conduct, passions and understandings, could hardly in any age have been introduced into practice by a deliberate act of the legistature.

But that the life, and perhaps the liberty and property, of a subject, should not be affected by the concurring judgment of a less number than twelve, where more were present, was a law founded in reason and caution; and seems to be transinitted to us by the common law,

When they are all unanimously agreed, the jury return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement to which, by the old law, he is liable, as has been formerly mentioned, (q) in case he fails in his suit, as a punishment for his false claim. To be amerced, or a mercie, is to be at the king's mercy with regard to the fine to be imposed; in misericordia domini regis pro falso clamore suo. The amercement is disused, but the form still continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be nonsuit, non sequitur clamorem suum. Therefore it is usual for a plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited, or withdraw himself: whereupon the crier is ordered to call the plaintiff: and if neither he, nor any body for him, appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reasor of this practice is, that a nonsuit is more eligible for the plaintiff than a verdic against him: for, after a nonsuit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, [*377] and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. But, in case the plaintiff appears, the jury by their foreman deliver in their verdict. (32)

A verdict vere dictum, is either privy or public. A privy verdict is when the judge hath left or adjourned the court: and the jury, being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of court: () which privy verdict is of no force, unless afterwards aflirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from the privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged. (33) But the only effectual and legal verdict is the public verdict: in which they openly declare to have found the issue for the plaintiff, or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury upon which the action is brought.

Sometimes, if there arises in the case any difficult matter of law, the jury, for the sake of better information, and to avoid the danger of having their verdict attainted, will find a special verdict; which is grounded on the statute of Westm. 2, 13 Edw. I, c. 30, § 2. And herein they state the naked facts, as they find them to be proved, and pray the advice of the court thereon; con

(9) Page 275. See also book IV. 379.

(r) If the judge hath adjourned the court to his own lodgings, and there receives the verdict, it is a public and not a priry verdict.

or from immemorial antiquity. The grand assize might have consisted of more than twelve, yet the verdict must have been given by twelve or more; and if twelve did not agree, the assize was afforced, that is, others were added till twelve did concur. See 1 Reeve's Hist. of Eug. Law. 241, 480. This was a majority, and not unanimity. A grand jury may consist of any number from twelve to twenty-three inclusive, but a presentment ought not to be made by less than twelve. 2 Hale P. C. 161. The same is true also of an inquisition before the coroner. In the bigh court of parliament, and the court of the lord high steward, a peer may be convicted by the greater number; yet there can be no conviction unless the greater number consists at least of twelve. 3 Inst. 30; Kelyng, 56; Moore, 622. Under a commission of lunacy the jury was seventeen, but twelve joined in the verdict. 7 Ves. Jun. 450. A jury upon a writ of inquiry may be more than twelve. In all these cases, if twelve only appeared, it followed, as a necessary consequence, that, to act with effect, they must have been unanimous.

Hence, this may be suggested as a conjecture respecting the origin of the unanimity of juries, that, as less than twelve, if twelve or more were present, could pronounce no effective verdict, when twelve only were sworn, their unanimity became indispensable.]

(32) [When a verdict will carry all the costs, and it is doubtful from the evidence for which party it will be given, it is a common practice for the judge to recommend, and the parties to consent, that a juror should be withdrawn; and thus no verdict is given, and each party pays his own costs.]

(33) [A privy verdict cannot be given in treason and felony. 2 H. P. C. 300.]

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