might perhaps hesitate whether it has now a power to direct a panel to be returned de medietate linguæ, and thereby alter the method prescribed for striking a special jury or balloting for common jurors.12 Challenges to the polls, in capita, are exceptions to particular jurors, and seem to answer the recusatio judicis in the civil and canon laws; by the constitutions of which a judge might be refused upon any suspicion of partiality.(x) By the laws of England also, in the times of Bracton(y) and Fleta, (2) a judge might be refused for good cause; but now the law is otherwise, and it is held that judges and justices cannot be challenged. (a) For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such misbehaviour would draw down a heavy censure from those to whom the judge is accountable for his conduct. But challenges to the polls of the jury (who are judges of fact) are reduced to four heads by Sir Edward Coke :(b) propter honoris respectum; propter defectum ; propter affectum; and propter delictum. 1. Propter honoris respectum; as, if a lord of parliament be impanelled on a jury, he may be challenged by either party, or he may challenge himself. *2. Propter defectum; as if a juryman be an alien born, this is defect of birth; if he be a slave or bondman, this is defect of liberty, and he [*362 cannot be liber et legalis homo. Under the word homo also, though a name common to both sexes, the female is however excluded, propter defectum sexus ; except when a widow feigns herself with child, in order to exclude the next heir, and a supposititious birth is suspected to be intended; then upon the writ de ventre inspiciendo, a jury of women is to be impanelled to try the question whether with child or not.(c) But the principal deficiency is defect of estate sufficient to qualify him to be a juror. This depends upon a variety of statutes. And, first, by the statute of Westm. 2, 13 Edw. I. c. 38, none shall pass on juries in assizes within the county, but such as may dispend 208. by the year at the least; which is increased to 40s. by the statutes 21 Edw. I. st. 1, and 2 Hen. V st. 2, c. 3. This was doubled by the statute 27 Eliz. c. 6, which requires in every such case the jurors to have estate of freehold to the yearly value of 41. at the least. But, the value of money at that time decreasing very considerably, this qualification was raised by the statute 16 & 17 Car. II. c. 3 to 201. per annum, which being only a temporary act, for three 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 10l. per annum in England and 67. 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 Ĭ 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 linguæ, that is, one moiety of the English tongue or nation, and the Cod. 3, 1, 16. Decretal. l. 2, t. 28, c. 36. (*) L. 6, c. 37. (a) Co. Litt. 294. (*) 1 Inst. 156. 12 From the enactments of the statute 6 Geo. IV. c. 50, and especially section 47 thereof, it would seem that a jury de medietate linguæ is now allowed only upon trials for felony or misdemeanour.-KERR. 13 A juror must be twenty-one years; and, if above sixty, he is exempted, though not disqualified, from serving. He must also possess freehold or copyhold property of the clear yearly value of ten pounds, or have leasehold property, held by lease for twenty-one years or longer, of the annual value of twenty pounds, or occupy a house containing not less than fifteen windows. In London, the occupation of a house, shop, or place of business within the city, or the possession of real or personal property of the value of 1007., constitutes a qualification. 6 & 7 Geo. IV. c. 50.-KERR. *363] other of any foreign one, no want of lands 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 probabie 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 misdemeanour 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 be branded, *whipt, *364] or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, præmunire, 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 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.(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 Westm. 2, 13 Edw. 1. c. 38, sick and decrepit persons, persons not commorant in the county, and men above seventy years old; and by the statute 7 & 8 W. III. c. 32, infants under twenty-one. This exemption is also extended, by divers statutes, (4) See stat. 2 Hen. V. st. 2, c. 3. 8 Hen. VI. c. 29. () Finch, L. 401. (1) In the nembda, or jury of the ancient Goths, three challeages only were allowed to the favour, but the principal challenges were indefinite. "Licebat palam excipere, et semper ex probabili causa tres repudiari: etiam plures en (4) Ibid. 158, b. 14 The question of challenge to the array, and incidentally to the polls and triers, underwent much discussion in The King vs. Edmonds, 4 B. & A. 476; and in that case it was determined that no challenge, either to the array or to the polls, can be taken until a full jury shall have appeared; that the disallowing a challenge is not a ground for a new trial, but for a venire de novo; that every challenge, either to the array or to the polls, ought to be propounded in such a way that it may be put at the time upon the nisi prius ❤ecord, so that when a challenge is made the adverse party may either demur or counterplead, or he may deny what is alleged for matter of challenge; and it is then only that triers can be appointed. It was also thereby determined that the whole special jurypanel cannot be challenged for the supposed unindifferency of the Master of the Crown Office, he being the officer of the court appointed to nominate the jury. And a material point was also ruled in the same case,-namely, that it is not competent to ask jurymen, whether special or talesmen, whether they have not, previously to the trial, expressed opinions hostile to the defendants and their cause, in order to found a challenge to the polls on that ground; but such expressions must be proved by extrinsic evidence. But see now stat. 6 Geo. IV. c. 50, ss. 27, 89.-CHITTY. customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impaneled, must show 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) 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 assizes or nisi prius, by virtue of the statute 35 Hen. VIII. c. 6, and other subsequent [*365 *statutes, the judge is empowered 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 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 shown 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 consent of the parties. *Or, as Tully (m) expresses it: "nemi[*366 nem voluerunt majores nostri, non modo de existimatione 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 conficı 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 prætor alios, quibus ille judicum legitimus 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;(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 *367] pleadings was read to them in English by the court, and the matter in issue 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 num berless niceties and distinctions of what is, or is not, legal evidence to a jury.(q, 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 ascer tains 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 know. ledge. 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. Antient deeds of thirty years' standing, which prove themselves;16 but, 3. Modern deeds, and 4. Other *368] *writings, must be attested and 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." For if it be found that there is any better () Ff. 22, 3, 2. Cod. 4, 19, 23, (F) Fortesc. c. 20. () 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. 16 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. ChiefBaron 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 pos Bession 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.CHRISTIAN. "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 possibly be 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 evidence existing an 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 burned 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 lifetime; but such evidence will not be received of any particular facts.18 So, too, books of account or shop-books are not allowed of 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 recognised 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.-CHRISTIAN. Some of the numerous cases which are found even in modern books may be cited for illustration and in confirmation of the text and note. If the subscribing witness be living and within the jurisdiction of the court, he must be called to prove the execution; or if he cannot be found, and that fact be satisfactorily explained, proof of his handwriting will be sufficient evidence of the execution. Barnes vs. Trompowsky, 7 T. R. 266. And the witness of the execution is necessary; acknowledgment of the party who executed the deed cannot be received. Johnson vs. Mason. 1 Esp. 89. At least only as secondary evidence. Call, Bart vs. Dunning, 4 East, 53. And acknowledgment to a subscribing witness by an obligor of a bond that he has executed it is sufficient. Powell vs. Blackett, 9 Esp. 87; and see Grellier vs. Neale, Peake, 146. But a mere bystander may not be received to supply the absence of the subscribing witness, (McCraw vs. Gentry, 3 Camp. 232,) or only as secondary evidence. See the next case. If the apparent attesting witness deny that he saw the execution, secondary evi dence is admissible; that is to say, the handwriting of the obligor, &c. may be proved. Ley vs. Ballard, 3 Esp. 173, n. And, as a general rule, it seems that wherever a subscribing witness appears to an instrument, note, &c., he must be called, or his absence explained. See Higgs vs. Dixon, 2 Stark. 180. Breton vs. Cope, Peake, 31.-CHITTY. 18 It is a general rule that the mere recital of a fact-that is, the mere oral assertion cr 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 gesta. Stark. on Evid. p. 1, 46, 47. But it is to be carefully observed that neither the declarations 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.-CHITTY. 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 parents respecting their marriage, and the legitimacy of their children, are admitted after their decease as evidence. And hearsay is also received respecting pedigrees and the death of relations 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 con versation which had passed in a room 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 lord Kenyon and another judge were introduced, the court were divided, and the former practice prevailed; but when the court were entirely changed, they uetermined that this hearsay evidence was not founded on any principles of law, and tha. the evidence at the quarter-sessions in the cases of settlement ought to be the same |