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26 June, 2013
The History of the Common Law of England|
by Hale, Matthew
| Touching Trials by Jury|
Having in the former Chapter somewhat largely treated of the Course of
Descents, I shall now with more Brevity consider that other Title of our Law
which I before propounded (in order to evidence the Excellency of the Laws of
England above those of other Nations,) viz. The Trial by a Jury of Twelve Men;
which upon all Accounts, as it is settled here in this Kingdom, seems to be the
best Trial in the World: I shall therefore give a short Account of the Method
and Manner of that Trial, viz.
First, The Writ to return a Jury, issues to the Sheriff of the County:
1st, He is to be a Person of Worth and Value, that so he may be
responsible for any Defaults, either of himself or his Officers. And, 2dly, Is
sworn, faithfully and honestly to execute his Office. This Officer is entrusted
to elect and return the Jury, which he is obliged to do in this Manner: 1.
Without the Nomination of either Party. 2. They are to be such Persons as for
Estate and Quality are fit to serve upon that Employment. 3. They are to be of
the Neighbourhood of the Fact to be inquired, or at least of the County or
Bailywick. And, 4. Anciently Four, and now Two of them at least are to be of
the Hundred. But Note, This is now in great Measure altered by Statute.
Secondly, Touching the Number and Qualifications of the Jury.
1st, As to their Number, though only Twelve are sworn, yet Twenty-four
are to be returned to supply the Defects or Want of Appearance of those that
are challenged off, or make Default. 2dly, Their Qualifications are many, and
are generally set down in the Writ that summons them, viz. 1. They are to be
Probi & legales Homines. 2. Of sufficient Freeholds, according to several
Provisions of Acts of Parliament. 3. Not Convict of any notorious Crime that
may render them unfit for that Employment. 4. They are not to be of the Kindred
or Alliance of any of the Parties. And, 5. Not to be such as are prepossed or
prejudiced before they hear their Evidence.
Thirdly, The Time of their Return.
Indeed, in Assizes, the Jury is to be ready at the Bar the first Day of
the Return of the Writ: But in other Cases, the Pannel is first returned upon
the Venire Facias, or ought to be so, and the Proofs or Witnesses are to be
brought or summoned by Distringas or Habeas Corpora for their Appearance at the
Trial, whereby the Parties may have Notice of the Jurors, and of their
Sufficiency and Indifferency, that so they may make their Challenges upon the
Appearance of the Jurors if there be just Cause.
Fourthly, The Place of their Appearance.
If it be in Cases of such Weight and Consequence as by the Judgment of
the Court is fit to be tried at the Bar, then their Appearance is directed to
be there; but in ordinary Cases, the Place of Appearance is in the Country at
the Assizes, or Nisi Prius, in the County where the Issue to be tried arises:
And certainly this is an excellent Constitution. The great Charge of Suits is
the Attendance of the Parties, the Jury-Men and Witnesses: And therefore tho'
the Preparation of the Causes in Point of pleading to Issue, and the Judgment,
is for the most Part in the Courts at Westminster, whereby there is kept a
great Order and Uniformity of Proceedings in the whole Kingdom, to prevent
Multiplicity of Laws and Forms; yet those are but of small Charge, or Trouble,
or Attendance, one Attorney being able to dispatch forty Mens Business with the
same Ease, and no greater Attendance than one Man would dispatch his own
Business: But the great Charge and Attendance is at the Trial, which is
therefore brought Home to the Parties in the Countries, and for the most Part
near where they live.
Fifthly, The Persons before whom they are to appear.
If the Trial be at the Bar, it is to be before that Court where the
Trial is; if in the Country, then before the Justices of Assizes, or Nisi
Prius, who are Persons well acquainted with the Common Law, and for the most
Part are Two of those Twelve ordinary Justices who are appointed for the Common
Dispensation of Justice in the Three great Courts at Westminster. And this
certainly was a most wise Constitution: For
1st, It prevents Factions and Parties in the Carriage of Business, which
would soon appear in every Cause of Moment, were the Trial only before Men
residing in the Counties, as Justices of the Peace, or the like, or before Men
of little or no Place, Countenance or Preheminence above others; and the more
to prevent Partiality in this Kind, those Judges are by Law prohibited to hold
their Sessions in Counties where they were born or dwell.
2dly, As it prevents Factions and Part-takings, so it keeps both the
Rule and the Administration of the Laws of the Kingdom uniform; for those Men
are employed as Justices, who as they have had a Common Education in the Study
of the Law, so they daily in Term-time converse and consult with one another;
acquaint one another with their Judgments, sit near one another in
Westminster-Hall, whereby their Judgments and Decisions are necessarily
communicated to one another, either immediately or by Relations of others, and
by this Means their Judgments and their Administrations of Common Justice carry
a Consonancy, Congruity and Uniformity one to another, whereby both the Laws
and the Administrations thereof are preserved from that Confusion and Disparity
that would unavoidably ensue, if the Administration was by several
incommunicating Hands, or by provincial Establishments: And besides all this,
all those Judges are solemnly sworn to observe and judge according to the Laws
of the Kingdom, according to the best of their Knowledge and Understanding.
Sixthly, When the Jurors appear, and are called, each Party has Liberty
to take his Challenge to the Array itself, if unduly or partially made by the
Sheriff; or if the Sheriff be of Kin to either Party, or to the Polls, either
for Insufficiency of Freehold, or Kindred or Alliance to the other Party, or
such other Challenges, either Principal, or to the Favour, as renders the Juror
unfit and incompetent to try the Cause, and the Challenge being confess'd or
found true by some of the rest of the Jury, that particular incompetent Person
Seventhly, Then Twelve, and no less, of such as are indifferent and are
return'd upon the principal Pannel, or the Tales, are sworn to try the same
according to their Evidence.
Eighthly, Being thus sworn, the Evidence on either Part is given in upon
the Oath of Witnesses, or other Evidence by Law allowed, (as Records and
ancient Deeds, but later Deeds and Copies of Records must be attested by the
Oaths of Witnesses) and other Evidence in the open Court, and in the Presence
of the Parties, their Attornies, Council and all By-standers, and before the
Judge and Jury, where each Party has Liberty of excepting, either to the
Competency of the Evidence, or the Competency or Credit of the Witnesses, which
Exceptions are publickly stated, and by the Judges openly or publickly allowed
or disallowed, wherein if the Judge be partial, his Partiality and Injustice
will be evident to all By-standers; and if in his Direction or Decision he
mistake the Law, either through Partiality, Ignorance, or Inadvertency, either
Party may require him to seal a Bill of Exception, thereby to deduce the Error
of the Judge (if any were) to a due Ratification or Reversal by Writ of
Ninthly, The Excellency of this open Course of Evidence to the Jury in
Presence of the Judge, Jury, Parties and Council, and even of the adverse
Witnesses, appears in these Particulars:
1st, That it is openly; and not in private before a Commissioner or Two,
and a couple of Clerks, where oftentimes Witnesses will deliver that which they
will be ashamed to testify publickly.
2dly, That it is Ore Tenus personally, and not in Writing, wherein
oftentimes, yea too often, a crafty Clerk, Commissioner, or Examiner, will make
a Witness speak what he truly never meant, by his dressing of it up in his own
Terms, Phrases, and Expressions; whereas on the other Hand, many times the very
Manner of a Witness's delivering his Testimony will give a probable Indication
whether he speaks truly or falsly. and by this Means also he has Opportunity to
correct, amend, or explain his Testimony upon further Questioning with him,
which he can never have after a Deposition is set down in Writing.
3dly, That by this Course of personal and open Examination, there is
Opportunity for all Persons concern'd, viz. The Judge, or any of the Jury, or
Parties, or their Council or Attornies, to propound occasional Questions, which
beats and boults out the Truth much better than when the Witness only delivers
a formal Series of his Knowledge without being interrogated; and on the other
Side, preparatory, limited, and formal Interrogatories in Writing, preclude
this Way of occasional Interrogations, and the best Method of searching and
sifting out the Truth is choak'd and suppress'd.
4thly, Also by this personal Appearance and Testimony of Witnesses,
there is Opportunity of confronting the adverse Witnesses, of observing the
Contradiction of Witnesses sometimes of the same Side, and by this Means great
Opportunities are gained for the true and clear Discovery of the Truth.
5thly, And further, The very Quality, Carriage, Age, Condition,
Education, and Place of Commorance of Witnesses, is by this Means plainly and
evidently set forth to the Court and the Jury, whereby the Judge and Jurors may
have a full Information of them, and the Jurors, as they see Cause, may give
the more or less Credit to their Testimony, for the Jurors are not only Judges
of the Fact, but many Times of the Truth of Evidence; and if there be just
Cause to disbelieve what a Witness swears, they are not bound to give their
Verdict according to the Evidence or Testimony of that Witness; and they may
sometimes give Credit to one Witness, tho' oppos'd by more than one. And
indeed, it is one of the Excellencies of this Trial above the Trial by
Witnesses, that altho' the Jury ought to give a great Regard to Witnesses and
their Testimony, yet they are not always bound by it, but may either upon
reasonable Circumstances, inducing a Blemish upon their Credibility, tho,
otherwise in themselves in Strictness of Law they are to be heard, pronounce a
Verdict contrary to such Testimonies, the Truth whereof they have just Cause to
suspect, and may and do often pronounce their Verdict upon one single
Testimony, which Thing the Civil Law admits not of.
Tenthly, Another Excellency of this Trial is this; That the Judge is
always present at the Time of the Evidence given in it: Herein he is able in
Matters of Law emerging upon the Evidence to direct them; and also, in Matters
of Fact, to give them a great Light and Assistance by his weighing the Evidence
before them, and observing where the Question and Knot of the Business lies,
and by shewing them his Opinion even in Matter of Fact, which is a great
Advantage and Light to Lay-Men: And thus, as the Jury assists the Judge in
determining the Matter of Fact, so the Judge assists the Jury in determining
Points of Law, and also very much in investigating and enlightning the Matter
of Fact, whereof the Jury are Judges.
Eleventhly, When the Evidence is fully given, the Jurors withdraw to a
private Place, and are kept from all Speech with either of the Parties till
their Verdict is delivered up, and from receiving any Evidence other than in
open Court, where it may be search'd into, discuss'd and examin'd. In this
Recess of the Jury they are to consider their Evidence, and if any Writings
under Seal were given in Evidence, they are to have with them; they are to
weigh the Credibility of Witnesses, and the Force and Efficacy of their
Testimonies, wherein (as I before said) they are not precisely bound to the
Rules of the Civil Law, viz. To have two Witnesses to prove every Fact, unless
it be in Cases of Treason, nor to reject one Witness because he is single, or
always to believe Two Witnesses if the Probability of the Fact does upon other
Circumstances reasonably encounter them; for the Trial is not here simply by
Witnesses, but by Jury; nay, it may so fall out, that the Jury upon their own
Knowledge may know a Thing to be false that a Witness swore to be true, or may
know a Witness to be incompetent or incredible, tho' nothing be objected
against him, and may give their Verdict accordingly.
Twelfthly, When the whole Twelve Men are agreed, then, and not till
then, is their Verdict to be received; and therefore the Majority of Assentors
does not conclude the Minority, as is done in some Countries where Trials by
Jury are admitted: But if any one of the Twelve dissent, it is no Verdict, nor
ought to be received. It is true, That in ancient Times, as Hen. 2 and Hen. 3's
Time, yea, and by Fleta in the Beginning of Edw. I's Time, if the Jurors
dissented, sometimes there was added a Number equal to the greater Party, and
they were then to give up their Verdict by Twelve of the old Jurors, and the
Jurors so added; but this Method has been long Time antiquated, notwithstanding
the Practice in Bracton's Time, lib. 4. cap. 9. and Fleta, lib. 4. cap. 9. for
at this Day the entire Number first empanell'd and sworn are to give up an
unanimous Verdict, otherwise it is none. And indeed this gives a great Weight,
Value and Credit to such a Verdict, wherein Twelve Men must unanimously agree
in a Matter of Fact, and none dissent; though it must be agreed, that an
ignorant Parcel of Men are sometimes governed by a few that are more knowing,
or of greater Interest or Reputation than the rest.
Thirteenthly, But if there be Matter of Law that carries in it any
Difficulty, the Jury may, to deliver themselves from the Danger of an Attaint,
find it specially, that so it may be decided in that Court where the Verdict is
returnable; and if the Judge overrule the Point of Law contrary to Law, whereby
the Jury are perswaded to find a general Verdict (which yet they are not bound
to do, if they doubt it,) then the Judge, upon the Request of the Party
desiring it, is bound by Law in convenient Time to seal a Bill of Exceptions,
containing the whole Matter excepted to; that so the Party grieved, by such
Indiscretion or Error of the Judge, may have Relief by Writ of Error on the
Statute of Westminster 2.
Fourteenthly, Altho' upon general Verdicts given at the Bar in the
Courts at Westminster, the Judgment is given within Four Days, in Presumption
that there cannot be any considerable Surprise in so solemn a Trial, or at
least it may be soon espied; yet upon Trials by Nisi prius in the Country, the
Judgment is not given presently by the Judge of Nisi prius, unless in Cases of
Quare Impedits: But the Verdict is returned after Trial into that Court from
whence the Cause issued, that thereby, if any Surprise happened either through
much Business of the Court, or through Inadvertency of the Attorney or Council,
or through any Miscarriage of the Jury, or through any other Casualty, the
Party may have his Redress in that Court from whence the Record issued.
And thus stands this excellent Order of Trial by Jury, which is far
beyond the Trial by Witnesses according to the Proceedings of the Civil Law,
and of the Courts of Equity, both for the Certainty, the Dispatch, and the
Cheapness thereof: It has all the Helps to investigate the Truth that the Civil
Law has, and many more. For as to Certainty,
1st, It has the Testimony of Witnesses, as well as the Civil Law and
2dly, It has this Testimony in a much more advantageous Way than those
Courts for Discovery of Truth.
3dly, It has the Advantage of the Judge's Observation, Attention, and
Assistance, in Point of Law by way of Decision, and in Point of Fact by way of
Direction to the Jury.
4thly, It has the Advantage of the Jury, and of their being de Vicineto,
who oftentimes know the Witnesses and the Parties: And,
5thly, It has the unanimous Suffrage and Opinion of Twelve Men, which
carries in itself a much greater Weight and Preponderation to discover the
Truth of a Fact, than any other Trial whatsoever.
And as this Method is more certain, so it is much more expeditious and
cheap; for oftentimes the Session of one Commission for the Examination of
Witnesses for one Cause in the Ecclesiastical Courts, or Courts of Equity,
lasts as long as a whole Session of Nisi prius, where a Hundred Causes are
examined and tried.
And thus much concerning Trials in Civil Causes. As for Trials in Causes
Criminal, they have this further Advantage, That regularly the Accusation, as
preparatory to the Trial, is by a Grand Jury: So that as no Man's Interest,
according to the Course of the Common Law, is to be tried or determined without
the Oaths of a Jury of twelve Men; so no Man's Life is to be tried but by the
Oaths of Twelve Men, and by the Preparatory Accusation or Indictment by Twelve
Men or more precedent to his Trial, unless it be in the Case of an Appeal at
the Suit of the Party.