Commentaries on the laws of England. Book the fourth. By Sir William Blackstone, … 1775: Vol 3
Blackstone, William, Sir
2 whom * 2 a _ Ln b l " * = SA = p ST: LIT — 222% _—_— - nf ms y _ „ m_ * — —— 12 — < at has wo 3 « " N N N * * 8 _ 4 r EI 8 * e . 2 — 356 PRIVATE Book III. whom they are to appear, and before whom the trial is to be held, are the judges of the ſuperior court, if it be a trial at bar; or the judges of aſſiſe, 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 affiſe ſhould hold pleas in any county wherein he was born or inhabits. And, as this conſtitution ' prevents party and faction from intermingling in the trial of right, ſo it keeps both the rule and the adminiſtration of the laws uniform, Theſe juſtices, though thus varied and ſhifted at every aſlifes, 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 thaſe courts which are mutually connected and their judg- ments blended together, as they are interchangeably courts of appeal or advice to each other. And hence their admini- ſtration 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 uncommuni- cating judges, or from any provincial eſtabliſhment, But let us now return to the aſliſes. oo ' Wuxn the general day of trials is fixed, the plaintiff or his attorney muſt bring down the record to the aſfiſes, and enter it with the proper officer, in order to it's 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 fear- ful of ſuch neglect in the plaintiff, and willing to diſcharge kimſelf from the action, will himſelf undertake to bring on Ch. 23. WRoOx as. 357. the trial, giving proper notice to the plaintiff, Which pro- ceeding 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 begins 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 eſteemed 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 ſurprize: and if the plaintiff then changes his mind, and does not countermand the notice fix days before the trial, he ſhall be liable to pay coſts to the defendant for not proceeding to trial, by the ſame laſt men- tioned ſtatute, The defendant however, or plaintiff, may, upon good cauſe ſhewn 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 aſſiſes. Bur we will now ſuppoſe all previous ſteps to be regu. larly 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 cor- pora, or diſtringas, with the panel of jurors annexed, to the judge's officer in court. The jurors contained in the panel are either ſpecial or common jurors. Special juries were origi- nally introduced in trials at bar, when the cauſes were of too great nicety for the diſcuſſion of ordinary freeholders ; or where the ſheriff was ſuſpected of partiality, though not upon ſuch apparent cauſe, as to warrant an exception to him, He is in ſuch caſes, upon motion in court and a rule granted thereupon, to attend the prothanotary or other proper officer with his freeholder's book; and the officer is to take indiffe- | d rently 358 PRIVATE Book III. rently forty- eight of the principal freeholders in the preſence of the attornies on both ſides: who are each of them to ſtrike off twelve, and the remaining twenty-four are returned upon the panel. By the ftatute 3 Geo. II. c. 25. either party is entitled upon motion to have a ſpecial jury ſtruck upon the trial of any iſſue, as well at the aſſiſes as at bar; he paying the extraordinary expenſe, unleſs the judge will certify (in purſuance of the ſtatute 24 Geo. II. c. 18.) that the cauſe required ſuch ſpecial jury, A couuo jury is one returned by the ſheriff according to the directions of the ſtatute 3 Geo. II. c. 25. which ap- points, that the ſheriff or officer ſhall not return a ſeparate panel for every ſeparate cauſe, as formerly ; but one and the fame panel for every cauſe to be tried at the ſame aſſiſes, con- taining not leſs than forty-eight, nor more than ſeventy-two, jurors: and that their names, being written on tickets, ſhall be put into a box or glaſs; and when each cauſe is called, twelve of theſe perſons, whoſe names ſhall be firſt drawn out of the box, ſhall be ſworn upon the jury, unleſs abſent, chal- lenged, or excuſed; or unleſs a previous view of the meſ- ſuages, lands, or place in queſtion, ſhall have been thought neceſſary by the court? : in which caſe {ix or more of the jurors returned, to be agreed on by the parties, or named by a judge or other proper officer of the court, ſhall be appointed by ſpecial writ of habeas corpora or diſtringas, to have the mat- ters in queſtion ſhewn to them by two perſons named in the writ ; and then ſuch of the jury as have had the view, or ſo many of them as appear, ſhall be ſworn on the inqueſt previous to any other jurors. Theſe acts are well calculated to re- ſtrain any ſuſpicion of partiality in the ſheriff, or any tam- pering with the jurors when returned, As the jurors appear, when called, they ſhall be ſworn, unleſs challenged by either party. Challenges are of two ſorts; challenges to the array, and challenges to the polls. P Stat, 4 Ann. c. 16. CHALLENGES Ch. 23. WRON OGS. 359 CHALLENGES to the array are at once an exception to the whole panel, in which the jury are arrayed or ſet in order by the ſheriff in his return; and they may be made upon account of partiality or ſome default in the ſheriff, or his under-officer who arrayed the panel. And, generally ſpeaking, the ſame reaſons that before the awarding the ve- nire were ſufficient to have directed it to the coroners or elifors, will be alſo ſufficient to quaſh the array, when made by a perſon or officer of whoſe partiality there is any tolerable ground of ſuſpicion. Alſo, though there be no perſonal ob- jection againſt the ſheriff, yet if he arrays the panel at the nomination, or under the direction of either party, this is good cauſe of challenge to the array. Formerly, if a lord of parliament had a cauſe to be tried, and no knight was returned upon the jury, it was a cauſe of challenge to the array * : but an unexpected uſe having been made of this dormant privilege by a ſpiritual lord i, it was aboliſhed by ſtatute 24 Geo. II. c. 18. But ſtill, in an attaint, a knight muſt be returned on the jury ſ. Alſo, by the policy of the antient law, the jury was to come de vicineto, from the neigh- bourhood of the vill or place where the cauſe of action was laid in the declaration: and therefore ſome of the jury were obliged to be returned from the hundred in which ſuch vill lay; and, if none were returned, the array might be chal- lenged for defect of hundredors. Thus the Gothic jury, or nembda, was alſo collected out of every quarter of the coun- try: „ binos, trinos, vel etiam ſenos, ex ſingulis territorii qua- « drantibus *.” For, living in the neighbourhood, they were properly the very country, or pais, to which both parties had appealed; and were ſuppoſed to know beforehand the cha- racters of the parties and witneſſes, and therefore the better knew what credit to give to the facts alleged in evidence. But this convenience was overballanced by another very na- tural and almoſt unavoidable inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt 1 Co. Litt. 1 56. Selden baronage, II. 23 Geo. II. B. R. 11. ſ Co. Litt. 156, r K, v. Biſhop of Worceſterk. MK. Stiernhock de jure Goth, I. 1. c. 4. 1 to 260 PRIVATE Book III. to intermix their prejudices and partialities in the trial of right. And this our law was ſo ſenſible of, that it for a long time has been gradually relinquiſhing this practice; the num- ber of neceſſary hundredors in the whole panel, which in the reign of Edward III were conſtantly fix*, being in the time of Forteſcue reduced to four. Afterwards indeed the ſtatute 35 Hen. VIII. c. 6. reſtored the antient number of fix, but that clauſe was ſoon virtually repealed by ftatute 27 Eliz, c. 6. which required only two. And fir Edward Coke alfo * gives us ſuch a variety of circumſtances, whereby the courts permitted this neceſſary number to be evaded, that it appears they were heartily tired of it. At length, by ſtatute 4 & 5 Ann. c. 16. it was entirely aboliſhed upon all civil actions, except upon penal ſtatutes; and upon thoſe alſo by the 24 Geo, II. c. 18. the jury being now only to come de corpore comitatus, from the body of the county at large, and not de vicineto, or from the particular neighbourhood, The array by the antient law may alſo be challenged, if an alien be party to the ſuit, and, upon a rule obtained by his motion to the court for a jury de medietate linguae, ſuch a one be not return- ed by the ſheriff, purſuant to the ſtatute 28 Edward III. c. 13, enforced by 8 Hen. VI. c. 29. which enact, that where either party is an alien born, the jury ſhall be one half denizens, and the other aliens (if ſo many be forthcoming in the place) for the more impartial trial, A privilege indulged to ſtrangers in no other country in the world ; but which is as antient with us as the time of king Ethelred, in whoſe ſtatute dz monticolis MWalliae (then aliens to the crown of England) cap. 3. it is ordained, that “ duadeni legales homines, quorum « {ex Walli et ſex Angli erunt, Anglis et Wallis Jus dicunto.” But where both parties are aliens, no partiality is to be pre- ſumed to one more than another ; and therefore it was re- ſolved ſoon after the ſtatute 8 Hen. VI. dr Laud, LL, c, 25. W Yearb, 21 Hen, VI. 4. | ſtatute ;.. ee” Ml Ch. 23. WROV OS. 361 ſtatute 3 Geo. II. c. 25. (before referred to) hath in civil cauſes undeſignedly abridged this privilege of foreigners, by the poſitive directions therein given concerning the manner of impanelling jurors, and the perſons to be returned in ſuch panel. So that (unleſs this ſtatute is to be conſtrued by the ſame equity, which the ſtatute 8 Hen. VI. c. 29. declared to be the rule of interpreting the ſtatute 2 Hen. V. ſt. 2. c. 3. concerning the landed qualification of jurors in ſuits to which aliens were parties) a court might perhaps heſitate, whether it has now a power to direct a panel to be returned de medietate linguae, and thereby alter the method preſcribed for ſtriking a ſpecial jury, or balloting for common jurors. 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 *. By the laws of England alſo, in the times of Bracton Y and Fleta -, a judge might be refuſed for good cauſe ; but now the law is otherwiſe, and it is held that judges or juſtices cannot be challenged *. For the law will not ſuppoſe a poſ- ſibility of bias or favour in a judge, who is already ſworn to adminiſter impartial juſtice, and whoſe authority greatly de- pends 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. Bur challenges to the polls of the jury (who are judges of fact) are reduced to four heads by fir Edward Coke ® : propter honoris reſpectum; propter Sen; propter affeftum ; 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. * Cod. 3. 1. 16. Decretal, I. 2. f. 28, 2 J. 6. c. 37. c. 36. 2 Co, Litt. 294. n. b IInſt. 156. 2. Projter FR _—_ . 7 os „ — r : ors Ss = roo 5 362 PRIVATE Book III. 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 cannot be liber et legalis homo, Under the word home 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 in- tended ; then upon the writ de ventre inſpiciendo, a jury of women is to be impanelled to try the queſtion, whether with child, or not?. 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 Weſtm, 2. 13 Edw. I. c. 38. none ſhall paſs on juries in aſſiſes within the county, but ſuch as may diſpend 205. by the year at the leaſt ; which is increaſed to 40s. by the ſtatute 21 Edw. I. ſt. 1. and 2 Hen. V. ft. 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 with- out renewal, to the great debaſement of juries. However by the ſtatute 4 and 5 W. & M. c. 24. it was again raiſed to 101, per annum in England and 61. in Wales, of freehold lands or copyhald ; 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 1 Ric. III. c. 4. and ꝙ Hen. VII. c. 13. And, laftly, by ſtatute 3 Geo. II. c. 25. any leaſe- holder 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 quali- fied to ſerve upon juries, When the jury is de medietate lin- gude, that is, one moiety of the Engliſh tongue or nation, and the other of any foreign one, no want of lands ſhall be © Cro, Eliz, 5£6, cauſe r /f ⁵ —BUöꝗ8ʒi:tmßßʒͥ% , AT ans Þ 6 Ch. 23. WRO NOS. 363 cauſe of challenge to the alien; for, as he is incapable to bold any, this would totally defeat the privilege “. 3. JURORS may be challenged propter affefum, for ſuſ- picion of biaſs or partiality, This may be either a principal challenge, or 10 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 © ; 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 prin- cipal cauſes of challenge; which, if true, cannot be over- ruled, for jurors muſt be omni exceptione majores. Challenges in the favour, are where the party hath no principal challenge; but objects only ſome probable circumſtances of ſuſpicion, as acquaintance, and the like ; 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 fnd him indifferent, he ſhall be ſworn ; and then he and the two triors ſhall try the next; and, when another is found in- different and ſworn, the two triors ſhall be ſuperſeded, and the two firſt ſworn on the jury ſhall try the reſt 5, 4. CHALLENGES profter delictum are for ſome crime or miſdemeſnor, 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 brand- See Stat. 2 Hen, V. ſt. 2, c. 3. challenges were indefinite. Licebas 8 Hen, VI. c. 29. &© talam excifere, et ſemper ex probabiis © Finch, L. gor. & cauſa tres repudiare z etiam fiures d In the nembda, or jury, of the an- *© cauſa praegnanti et manifeſta,”* (Stiern- tient Goths, three challenges only were hook. J. 1. c. edy 364 PRIVATE Book III. ed, whipt, or ſtigmatized; or if he be outlawed or excommu- nicated, or hath been attainted of falſe verdict, praemunire, or forgery ; or laſtly, if he hath proved recreant when champion in the trial by battel, and thereby hath loſt his liberam legem. A juror may himſelf be examined on oath of voir dire, verita- tem 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 , | ; BEsSIDEs 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 z whereby their ſervice is excuſed, and not excluded. As by ſtatute Weſt, 2, 13 Edw. I. c. 38. ſick and decrepit perſons, perſons not com- morant in the county, and men above ſeventy years old; and by the ſtatute of 7 & 8 W. III. c. 32. infants under twenty one. This exemption is alſo extended by divers ſtatutes, cuſtoms, and charters, to phyſicians and other medical per- ſons, counſel, attorneys, officers of the courts, and the like; all of whom, if impanelled, muſt ſhew their ſpecial exemp- tion. 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 ; ix obſeguio domini regis, vel alicujus * epiſcops i. Ir 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 com- mon law, and muſt be {till ſo done at a trial at bar, if the jurors make default. But at the aſſiſes or xiſi prius, by vit- tue of the ſtatute 35 Hen. VIII. c. 6. and other ſubſequent > Co, Litt. 158, 6, 1 F. N. B. 166, Reg. Brev. 179. | 1 ſtatutes, * % cc Ch. 23. WroOnch 365 ſtatutes, the judge is impowered at the prayer of either party to award a tales de circumſlantibus i, 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 apoftolical number fir Edward Coke * hath diſcovered abundance of myſtery?, WHEN a ſufficient number of perſons impanelled, ot 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 deno- minated 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 remark- ably, 1. In the avoiding of frauds and ſecret management, by electing the twelve jurors out of the whole panel by lot. a. In it's caution againk 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 allow- ed to jurors, who are the judges of fact, amounts nearly to the ſame thing as was practiſed in the Roman republic, before Me loſt her liberty: that the ſelect judges ſhould be appoint- ed by the praetor with the mutual conſent of the parties. J Append, Ne. II, $. 4. & 1 Inſt, x55, I Pauſanias relates, that at the trial of Mars, ſor murder, in the coutt deno- diinated arcopagus from that incident, he was acquitted by a jury compoſed of tvelve pagan deities, And Dr. Hickes, who attributes the introduction of this number to the Normans, (though he al- lows the inſtitution of juries in general f. ta be of much higher antiquity in Eng- land) tells us that among the inhabitants of Norway, from whom the Normans as well as the Danes were deſcended, a great veneration was paid to the number twelve z O nibil ſanctius, nibii antiquius & fuit; perinde ac fs in ipſo bec numero « ſecreta guaedam efſet religio. (Diſ ert. epiſtolar . 4+) Or, 366 PRIVAT E Book III. Or, as Tully ® expreſſes it: neminem voluerunt majores noſtri, non modo de exiſtimatione cujuſquam, ſed ne pecuniaria quidem « de re minima, eſſe judicem z niſi qui inter adverſarios con- & veniſſet.” INDEED theſe ſelecti judices bore in many reſpects a re. markable reſemblance to our juries : for they were firſt re. turned by the praetor; de decuria ſenatoria conſcribuntur : then their names were drawn by lot, till a certain number was completed; in urnam ſortito mittuntur, ut de pluribus neceſſa- rius numerus confici paſſet: then the parties were allowed their challenges; po/t urnam permittitur accuſatori, ac reo, ut ex ills numero rejiciant quos putaverint ſibi aut inimicos aut ex aliqua re incommodos fore : next they ſtruck what we call a tales; re- jectione celebrata, in corum locum qui rejecti fuerunt ſubſortieba- tur praetor alios, quibus ille judicum legitimus numerus complere. tur : laſtly, the judges, like our jury, were ſworn ; his per- fectis, jurabant in leges juices, ut obftritti religione judicarent”, THe jury are now ready to hear the merits ; and, to fix their attention the cloſer to the facts which they are impa- nelled and ſworn to try, the pleadings are opened to them by counſel on that fide which holds the affirmative of the queſtion in iſſue, For the iſſue is ſaid to lie, and proof is always firſt required, upon that fide which affirms the mat- ter in queſtion ; in which our law agrees with the civile; cc ei incumbit probatis, qui dicit, non qui negat : cum per rerum « naturam fattum-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 de- claration, the plea, replication, and other proceedings, and laſtly, upon what point the iſſue is joined, which is there ſent down to be determined. Inſtead of which formerly? the whole record and proceſs of the pleadings was read to m pro Cluentio, 43. the judices ſelecii of the Romans, and the n Aſcon, in Cic. Ferr, 1. 6. A learn- juries of the Engliſh, that he is tempted ed writer of cur own, Dr, Pettingal, to conclude that the latter are derived hath ſhewn ia an elaborate work (pub- from the former. liſhed A. D. 176g.) ſo many reſem- o Ef. 22. 3. 2. Cod. 4. 19. 23. tances between the diuacai of the Greeks, p Farteſc, c. 26. them Ch. 23. WroNnGs, 367 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 evi- dence 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. | Taz nature of my preſent deſign will not permit me to enter into the numberleſs niceties and diſtinctions of what is, or is not, legal evidence to a jury 3. I ſhall only therefore ſelect a few of the general heads and leading maxims, rela- tive to this point, together with ſome obſervations on the manner of giving evidence. And, firſt, evidence ſignifies that which demonſtrates, makes clear, or aſcertains the truth of the very fact or point in iſſue, 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 aff 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 there- fore 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 knowlege. The former, or proofs, (to which in common ſpeech the name of evidence is uſually confined) are either written, or pare, that is, by word of mouth. Written proofs, or evidence, are, 1. Re- cords, and 2. Antient deeds of thirty years ſtanding, which prove themſelves ; but 3, Modern deeds, and 4. Other wri- 1 This is admirably well performed the chain of the whole; and which hath in lord chief baron Gilbert's excellent lately been engrafted into a very uſeful treatiſe of evidence: a work, which it work, the ir-trodu@ion to the law of niſi is impoſſible to abſtract or abridge, with= prius, 40. 1767. out loſing ſome beauty and deſtroying tings, 368 PRIVATE | Book III. tings, muſt be atteſted and verified by parol evidence of wit. neſſes. 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 evidence exiſting than is produced, the very not pro. ducing 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 burnt 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 it's 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 life-time : but ſuch evidence will not be received of any par- ticular facts. So too, books of account, or ſhop-books, are not allowed of themſelves to be given in evidence for the owner ; but a ſervant who made the entry may have recourſe to them to refreſh his memory : and, if ſuch ſervant (who was accuſtomed to make thoſe entries) be dead, and his hand be proved, the book may be read in evidence“: for, as tradeſmen are often under a neceſſity of giving credit without any note or writing, this is therefore, when accompanied with ſuch other collateral proofs of fairneſs and regularity, the beſt evidence that can then be produced. However this dangerous ſpecies. of evidence is not carried ſo far in England as abroad * ; where a man's own books of accounts, by a diſ- tortion of the civil law (which ſeems to have meant the ſame thing as is practiſed with ust) with the ſuppletory oath of r Law of ni prius, 266, ad probationem ſola non ſufficiunt, (Cod, 4. \ Salk, 285. 19. 8. ) Nam exemple pernicioſum eſt, ut s Gail, ob ſer vat. 2. 20. 23. ei ſcripturae credatur, qua unuſquiſqu t Inſirumenta domeſtica, ſeu adnctatic, ſſbi adnetatione propria debitorem conflituit, the fi non aliis guogue adminiculis adjuventur, (Ibid. J. 7.) Ch. 23. WRroNnGSs. 369 the merchant, amount at all times to full proof, But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long diſtance of time, the ſtatute 7 Jac. I. c. 12. (the penners of which ſeem to have ima- gined that the books of themſelves were evidence at common law) confines this ſpecies of proof to ſuch tranſactions as have happened within one year before the action brought; unleſs between merchant and merchant in the uſual inter- courſe of trade. For accounts of fo recent a date, if erro- neous, may more eaſily be unravelled and adjuſted, W1TH regard to parol evidence, or witneſſes ; it muſt firſt be remembered, that there is a proceſs to bring them in by writ of ſubpoena ad teſiificandum which commands them, laying aſide all pretences and excuſes, to appear at the trial on pain of 100/. to be forfeited to the king; to which the ſtatute 5 Eliz. c. 9. has added a penalty of 101. to the party aggrieved, and damages equivalent to the loſs ſuſtained by want of his evidence, But no witneſs, unleſs his reaſon- able expenſes be tendered him, is bound to appear at all ; nor, if he appears, is he bound to give evidence till ſuch charges are actually paid him: except he reſides within the bills of mortality, and is ſummoned to give evidence within the ſame, This compulſory proceſs, to bring in unwilling witneſſes, and the additional terrors of an attachment in caſe of diſobedience, are of excellent uſe in the thorough inveſti- gation of truth: and, upon the ſame principle, in the Athe- nian courts, the witneſſes who were ſummoned to attend the trial had their choice of three things ; either to ſwear to the truth of the fact in queſtion, to deny or abjure it, or elſe to pay a fine of a thouſand drachmas a. ALL witneſſes, of whatever religion or country, that have the uſe of their reaſon, are to be received and examined, ex- cept ſuch as are infamous, or ſuch as are intereſted in the event of the cauſe. All others are competent witneſſes; though the jury from other circumſtances will judge of their credibility. u Pott. Antiq. b. 1. c. 21, Vor. III. . Z Infamous 370 PRIVATE Book III. Infamous perſons are ſuch as may be challenged as jurors, propter delictum; and therefore never ſhall be admitted to give evidence to inform that jury, with whom they were too ſcan- dalous to aſſociate. Intereſted witneſſes may be examined upon a voir dire, if ſuſpected to be ſecretly concerned in the event ; or their intereſt may be proved in court, Which laſt is the only method of ſupporting an objection to the former claſs ; for no man is to be examined to prove his own infa- my. And no counſel, attorney, or other perſon, intruſted with the ſecrets of the cauſe by the party himſelf, ſhall be compelled, or perhaps allowed, to give evidence of ſuch converſation or matters of privacy, as came to his knowlege by virtue of ſuch truſt and confidence: but he may be ex- amined as to mere matters of fact, as the execution of a deed or the like, which might have come to his knowlege without being intruſted in the cauſe. OxE witneſs (if credible) is ſufficient evidence to a jury of any ſingle fact; though undoubtedly the concurrence of two or more corroborates the proof. Yet our law conſiders that there are many tranſaCtions to which only one perſon is privy; and therefore does not always demand the teſtimony of two, as the civil law univerſally requires. Unius reſpon/io teſtis, « omnino non audiatur .“ 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 be plena probatio, they call the teſtimony of one, though never ſo clear and poſitive, ſemi- plena probatio only, on whom no ſentence can be founded. To make up therefore the neceſſary complement of witneſſes, when they have one only to any 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 ſapple- tory oath : and, if his evidence happens to be in his own fa- your, this immediately converts the half proof into a whole one, By this ingenious device ſatisfying at once the forms of the Roman law, and acknowleging the ſuperior reaſona- Law of niſi prius, 267, Cd. 4. 20. 9. bleneſs Ch. 23. WO os. 371 bleneſs of the law of England: which permits one witneſs to be ſufficient where no more are be to had ; and, to avoid all temptations of perjury, lays it down as an inyariable rule, that nemo teſtis eſe debet in propria cauſa. 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 can- not be demonſtratively evinced, that which comes neareſt to the proof of the fact is the proof of ſuch circumſtances which either neceſſarily, or uſually, attend ſuch facts; and theſe are called preſumptions, which zre only to be relied upon till the contrary be actually proved. Stabitur praeſumptioni donec probetur in contrarium *. Violent preſumption is many times equal to full proof “; 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 ſub- ſequent time, in full of all demands, this is a violent pre- ſumption of his having paid the former rent, and is equiva- lent 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 ad- mitted to the contrary x. Probable preſumption, ariſing from ſuch circumſtances as uſually attend the fact, hath alſo it's due weight: as if, in a ſuit for rent due 1754, the tenant proves the payment of the rent due in 1755; this will pre- vail to exonerate the tenant *, unleſs it be clearly ſhewn 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. x Co. Litt, 373. 2 Gilb, evid, 161, Y Did. 6, a Co, Litt, 373. SE i THE 372 PRIVATE Book III. THE oath adminiſtered 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 it's competency, 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 mis-ſtates the law by ignorance, inadvertence, or deſign, the counſel] on either fide may require him publicly to ſeal a bill of exceptions , 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 *, 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 1s 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 pleaſes 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 © : which draws the queſ- tion of law from the cognizance of the jury, to be decided (as it ought) by the court. But neither theſe demurrees to evidence, nor the bills of exceptions, are at preſent ſo much b Reg. Br. 182. 2 laſt, 487. © Co, Litt, 72. 5 Rep. 104. in VJ at mc. M. f ß) p Ch. 23. WRON GS. 373 in uſe as formerly; ſince 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 nfs prius. TR Is open examination of witneſſes viva voce, in the pre- ſence of all mankind, is much more conducive to the clear- ing up of truth *, 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 de- poſition 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 ano- ther opportunity of obtaining a clear diſcovery, which can never be had npon 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 wan- dering 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 qua- lity, age, education, under{tanding, behaviour, and inclina- tions 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 man- ner in which the evidence is delivered, as from the matter of d Hale's Hit, C. L. 254, 5, 6. 