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The History of the Common Law of England
XII.
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: And,

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 is withdrawn.

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 Error.

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 Equity Courts.

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.

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