363 two triors shall try the next; and, when another is found indifferent and fworn, the two triors fhall be fuperfeded, and the two first sworn on the jury shall try the rest %. 4. CHALLENGES propter deliclum are for fome crime or misdemefnor, that affects the juror's credit and renders him infamous. As for a conviction of treafon, felony, perjury, or confpiracy; or if for fome infamous offence he hath received judgment of the pillory, tumbrel, or the like; or to be branded, whipt, or ftigmatized; or if he be outlawed or excommu- [364] nicated, or hath been attainted of falfe verdict, praemunire, or forgery; or laftly, if he hath proved recreant when champion in the trial by battel, and thereby hath loft his liberam legem. A juror may himself be examined on oath of voir dire, veritatem dicere, with regard to fuch caufes of challenge, as are not to his dishonour or difcredit; but not with regard to any crime, or any thing which tends to his difgrace or difadvantage. one. BESIDES thefe challenges, which are exceptions against the fitness of jurors, and whereby they may be excluded from ferving, there are alfo ather caufes to be made ufe of by the jurors themselves, which are matter of exemption; whereby their fervice is excufed, and not excluded. As by ftatute Weft. 2. 13 Edw. I. c. 38. fick and decrepit perfons, perfons not commorant in the county, and men above feventy years old; and by the ftatute of 7 & 8 W. III. c. 32. infants under twentyThis exemption is alfo extended by divers ftatutes, customs, and charters, to phyficians and other medical perfons, counsel, attorneys, officers of the courts, and the like; all of whom, if impanelled, muft fhew their special exemption. Clergymen are also usually excufed, out of favour and respect to their function: but, if they are feifed of lands and tenements, they are in ftrictnefs liable to be impanelled in refpect of their lay fees, unlefs they be in the fervice of the king or of fome bishop: " in obfequio domini regis, vel alicujus " episcopii." B Co. Litt. 158. Ibid. 158. b. iF. N. B. 166. Reg. Brev. 179. BOOK III. IF by means of challenges, or other caufe, a fufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A tales is a supply of fuch men, as are fummoned 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 affifes or nifi prius, by virtue of the statute 35 Hen. VIII. c. 6. and other subsequent [365] ftatutes, the judge is empowered at the prayer of either party to award a tales de circumftantibus), of perfons prefent in court, to be joined to the other jurors to try the caufe; who are liable however to the fame challenges as the principal jurors(8). This is ufually done, till the legal number of twelve be completed; in which patriarchal and apoftolical number fir Edward Coke hath discovered abundance of mystery'. j Append. No II. § 4. * I Inft. 155. I Paufanias relates, that at the trial of Mars, for murder, in the court denominated areopagus from that incident, he was acquitted by a jury compofed of twelve pagan deities. And Dr. Hickes, who attributes the introduction of this number to the Normans, tells us that among the inhabitants of Norway, from whom the Normans as well as the Danes were defcended, a great veneration was paid (8) Before the ftatute 3 Geo. II. c. 25. twenty-four different jurors were returned for the trial of each feparate caufe, in the manner of twenty-four fpecial jurymen at prefent; hence the neceffity of praying a tales from the non-attendance of twelve unexceptionable perfons in each panel would frequently occur. And by the 7 & 8 W. III. c. 32. it was enacted, that the talesmen should be felected from those who had been fummoned in other panels. But fince the practice was introduced by 3 Geo. II. c. 25. of impanelling not lefs than forty-eight, nor more than seventy-two, for the trial of all common caules, the provifions of the statutes respecting a tales, are now confined in a great measure to special juries. If a tales, in default of special jurymen, is prayed, it is fupplied agreeably to the 7 & 8 W. III. c. 32. from the panel of common jurymen. No tales can be prayed where all the fpecial jurymen are abfent. A tales may be prayed as in civil actions in cafes of mifdemeanor tried by writ of nifi prius. 3 St. Tr. 57. WHEN WHEN a fufficient number of perfons impanelled, or tales-men, appear, they are then feparately fworn, well and truly to try the iffue 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 obferve, and obferving we cannot but admire, how fcrupulously delicate, and how impartially just the law of England approves itself, in the conftitution 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 fecret management, by electing the twelve jurors out of the whole panel by lot. 2. In it's 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 shewn 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 fame thing as was practifed in the Roman republic, before fhe loft her liberty: that the felect judges fhould be appointed by the prætor with the mutual consent of the parties. Or, as Tullym expreffes it: "neminem voluerunt majores nof- [366] "tri, non modo de exiftimatione cujufquam, fed ne pecuniaria qui"dem de re minima, effe judicem; nifi qui inter adverfarios con"veniffet." INDEED these felecti judices bore in many respects a remarkable resemblance to our juries: for they were first returned by the prætor; de deturia fenatoria confcribuntur : then their names were drawn by lot, till a certain number was .completed; in urnam fortito mittuntur, ut de pluribus necessa rius numerus confici poffet: then the parties were allowed their challenges; poft urnam permittitur accufatori, ac reo, ut ex illo numero rejiciant quos putaverint fibi aut inimicos aut ex aliqua re paid to the number twelve: "nibil « fanctius, nibil antiquius fuit; perinde “ ac fi in ipfo boc numero fecreta quaedam 13 "effet religio." (Differt, qiftelar. 49.) m pro Cluencio. 43. incom BOOK III. incommodos fore: next they ftruck what we call a tales; rejelione celebrata, in eorum locum qui rejecti fuerunt fubfortiebatur praetor alios, quibus ille judicum legitimus numerus compleretur laftly, the judges, like our jury, were sworn; his perfectis, jurabant in leges judices, ut obftricti religione judicarent”. THE jury are now ready to hear the merits; and, to fix their attention the clofer to the facts which they are impa nelled and sworn to try, the pleadings are opened to them by counfel on that fide which holds the affirmative of the question in iffue. For the iffue is faid to lie, and proof is always firft required, upon that fide which affirms the matter in question; in which our law agrees with the civil ; "ei incumbit probatio, qui dicit, non qui negat: cum per rerum "naturam factum-negantis probatio nulla fit." 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 laftly, upon what point the iffue is joined, which is there fent down to be determined. Inftead of which formerly P the whole record and procefs of the pleadings was read to [367] them in English by the court, and the matter in iffue clearly explained to their capacities. The nature of the cafe, and the evidence intended to be produced, are next laid before them by counsel also on the fame fide: and, when their evidence is gone through, the advocate on the other fide 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 prefent defign will not permit me to enter into the numberless niceties and diftinctions of what is, or is not, legal evidence to a jury. I fhall only therefore fe n Afcon. in Cic. Verr. 1. 6. A learned writer of our own, Dr. Petting 1, hath fhewn in an elaborate work (publifhed A. D. 1769.) fo many refemblances, between the dinaga of the Greeks,the judices select of the Romans, and the juries of the English, that he is tempted to conclude that the latter are derived from the former. Ff. 22. 3. 2. Cod. 4. 19. 23. P Fortefc. c. 26. 9 This is admirably well performed in lord chief baron Gilbert's excellent treatise of evidence; a work, which it 367 lect a few of the general heads and leading maxims, relative to this point, together with fome obfervations on the manner of giving evidence. AND, first, evidence fignifies that which demonftrates, makes clear, or afcertains the truth of the very fact or point in iffue, either on the one fide 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 eft factum, and the iffue is, whether it be the defendant's deed or no; he cannot give a release of this bond in evidence; for that does not deftroy the bond, and therefore does not prove the iffue 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 knowlege. The former, or proofs, (to which in common fpeech the name of evidence is ufually 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 (9); but 3. Modern deeds, and 4. Other is impoffible to abstract or abridge, without lofing fome beauty and deftroying the chain of the whole; and which hath lately been engrafted into a very useful work, the introduction to the law of nifi prius, 40, 1767. (9) This rule is laid down in books of evidence without any explanation of it's principle or the extent of it's application. It feems abfurd to permit a deed to be read merely because it bears date above thirty years before it's production; and to require no evidence where a forgery may be committed with the least probability of detection. If a fubfcribing witnefs be ftill living, he muft be produced to prove his hand-writing, and the execution of the deed, as in other cafes. 1 Bl. Rep. 532. If no fubfcribing witnefs be living, the courts, I conceive, would require the fame evidence with regard to the hand-writing of the witneffes and party, as in cafes of deeds of more recent date; unless perhaps fatisfactory VOL. III. evidence Dd |