other pieces of juridical polity, to the fuperior genius of Alfred the great; to whom, on account of his having done much, it is ufual to attribute every thing: and as the tradi tion of antient Greece placed to the account of their own Hercules whatever atchievement was performed fuperior to the ordinary prowefs of mankind. Whereas the truth feems to be, that this tribunal was univerfally eftablished among all the northern nations, and fo interwoven in their very conftitution, that the earlieft accounts of the one give us also fome traces of the other. It's eftablishment however and use, in this island, of what date foever it be, though for a time greatly impaired and fhaken by the introduction of the Norman trial by battel, was always fo highly esteemed and valued by the people, that no conqueft, 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 chap. 29. that no freeman fhall be hurt in either his perfon or property; "nifi per legale judicium ❝ parium fuorum vel per legem terrae." A privilege which is couched in almoft the fame words with that of the emperor Conrad, two hundred years before": "nemo beneficium fuum "perdat, nifi fecundum confuetudinem antecefforum noftrorum et “ per judicium parium fuorum." And it was ever efteemed, in all countries, a privilege of the highest and most beneficial

nature.

BUT I will not mifpend the reader's time in fruitless encomiums on this method of trial: but shall proceed to the diffection and examination of it in all it's parts, from whence indeed it's highest encomium will arife: fince, the more it is fearched into and understood, the more it is fure to be valued. And this is a fpecies of knowlege most abfolutely 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-fubjects; as becaufe his own property, his liberty, and his life, depend upon maintaining, in it's legal force, the conftitutional trial by jury.

e LL. Longob. 1. 3. t. 8. 1. 4.

TRIALS by jury in civil causes are of two kinds; extraordinary, and ordinary. The extraordinary I shall only briefly hint at, and confine the main of my observations to that which is more ufual and ordinary.

THE firft fpecies of extraordinary trial by jury is that of the grand affife, which was inftituted by king Henry the fecond 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, inftead of the barbarous and unchriftian cuftom of duelling. For this purpose a writ de magna affifa eligenda is directed to the fheriff', to return four knights, who are to elect and chufe twelve others to be joined with them, in the manner mentioned by Glanvils; who, having probably advifed the meafure itself, is more than ufually copious in defcribing it: and thefe, all together, form the grand affise, or great jury, which is to try the matter of right, and must now confift of fixteen jurors 1 (1).

h

ANOTHER fpecies of extraordinary juries, is the jury to try an attaint; which is a procefs commenced against a former jury, for bringing in a falfe verdict; of which we fhall speak more largely in a subsequent chapter. At prefent I fhall only observe, that this jury is to confift of twenty-four of the best men in the county, who are called the grand jury in the attaint, to distinguish them from the firft or petit jury; and thefe are to hear and try the goodnefs of the former verdict.

WITH regard to the ordinary trial by jury in civil cafes, I shall pursue the fame method in confidering it, that I fet h Finch. L. 412, 1 Leon. 303.

f F. N. B. 4.

B 1. 2. c. 11-21.

(1) It feems not to be afcertained that any fpecific number above twelve is abfolutely neceffary to conftitute the grand adize but it is the ufual courfe to fwear upon it the four knights and twelve others. Viner, Trial, X e.

See the proceedings upon a writ of right before the fixteen recognitors of the grand allize, in 2 Wilf. 541.

out

out with in explaining the nature of profecuting actions in general, viz. by following the order and course of the proceedings themselves, as the most clear and perfpicuous way` of treating it.

[ 352 ] WHEN therefore an iffue is joined, by these words," and "this the faid A prays may be inquired of by the country," or," and of this he puts himself upon the country,-and the "faid 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 fuch a day, twelve free and law"ful men, liberos, et legales homines, of the body of his coun"ty, by whom the truth of the matter may be better known, "and who are neither of kin to the aforefaid A, nor the "aforefaid B, to recognize the truth of the iffue between the "faid parties." And fuch writ is accordingly iffued to the fheriff.

THUS the caufe ftands ready for a trial at the bar of the court itself: for all trials were there anticntly had, in actions which were there first commenced; which then never happened but in matters of weight and confequence, all trifling fuits 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 ufage began to bring actions of any trifling value in the courts of Weftminster-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 affault at Westminster. A practice therefore very early obtained, of continuing the caufe from term to term, in the court above, provided the juftices in eyre did not previously come into the county where the caufe of action arofe*: and if it happened that they arrived there within that interval, then the cause was removed from the jurisdic.

tion of the juftices at Weftminster to that of the juftices in eyre. Afterwards when the juftices in eyre were fuperfeded by the modern juftices of aflife (who came twice or thrice in the year into the feveral counties, ad capiendas affifas, to take or try writs of aflife, of mort d'ancestor, novel disseifin, nusance, and the like) a power was fuperadded by ftatute Weftm. 2. [353] 13 Edw. I. c. 30. to these justices of affife to try common iffues in trefpafs, and other lefs important fuits, with directions to return them (when tried) into the court above; where alone the judgment fhould 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 claufe of nifi prius was left out of the conditional continuances before-mentioned, and was directed by the ftatute 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 fuch a day in eafter and "michaelmas terms; nifi prius, unless before that day, the "juftices affigned to take affifes fhall come into his faid "county." By virtue of which the fheriff returned his jurors to the court of the justices of affife, which was fure to be held in the vacation before eafter and michaelmas terms; and there the trial was had.

An inconvenience attended this provision: principally be cause, as the theriff 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 reafon by the ftatute 42 Edw. III. c. 11. the method of trials by nifi prius was altered and it was enacted that no inqueft (except of affife and gaol-delivery) fhould be taken by writ of nifi prius, till after the fheriff had returned the names of the jurors to the court above. So that now in almoft every civil cause the claufe of nifi prius is left out of the writ of venire facias, which is the sheriff's warrant to warn the jury; and is inferted in another part of the proceedings, as we shall fee presently.

VOL. III.

Cc

FOR

353 For now the course is, to make the sheriff's venire returnable on the last return of the fame term wherein iffue is joined, viz. hilary or trinity terms; which, from the making up of the iffues 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 [354] is not fummoned, and therefore, not appearing at the day, mu unavoidably make default. For which reafon a compulfive 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 diftringas, commanding the sheriff to have their bodies, or to diftrein them by their lands and goods, that they may appear upon the day appointed. The entry therefore on the roll or record is ', " that the jury is refpited, 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 fourth of March, the juftices of our lord "the king, appointed to take affises in that county, fhall have "come to Oxford, that is, to the place affigned for holding "the affifes." And thereupon the writ commands the sheriff to have their bodies at Westminster on the faid first day of next term, or before the said justices of assise, if before that time they come to Oxford; viz. on the fourth of March aforefaid. And, as the judges are fure to come and open the circuit commissions on the day mentioned in the writ, the sheriff returns and fummons this jury to appear at the affifes, and there the trial is had before the justices of affife and nifi prius: among whom (as hath been said m) are usually two of the judges of the courts at Westminster, the whole kingdom being divided into fix circuits for this purpofe. And thus we may obferve that the trial of common iffues, at nifi prius, which was in it's original only a collateral incident to the original bufinefs of the juftices of affife, is now, by the various revolutions of practice, become their principal civil employment: hardly any thing remaining in ufe of the real affifes, but the name. m See pag. 59.

Append. No II. § 4.

IF