CHAPTER THE TWENTY-THIRD.

OF THE TRIAL BY JURY.

HE fubject of our next inquiries will be the nature

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and method of the trial by jury; called alfo the trial per pais, or by the country: a trial that hath been used time out of mind in this nation, and feems to have been co-eval with the first civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is, that they were in ufe among the earliest Saxon colonies, their inftitution being afcribed by bishop Nicholson to Woden himself, their great legiflator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feodal fyftem, as in Germany, France, and Italy; who had all of them a tribunal composed of twelve good men and true, "boni homines," usually the vafals or tenants of the lord, being the equals or peers of the parties litigant; and, as the lord's vafals judged each other in the lord's courts, fo the king's vafals, or the lords themfelves, judged each other in the king's court. In England we find actual mention of them fo early as the laws of king Ethelred, and that not as a new invention. Stiernhook afcribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was co-temporary with our king Egbert. Just as we are apt to impute the invention of this, and some

a de jure Saxonum, p. 12.

b Sp. L. b. 30. c. 18. Capitul. Lud. pii. A. D. 819. c. 2.

e Wilk. LL. Angi. Sax. 117. d de jure Suconum, l. 1. 6. 4u

VOL. III.

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BOOK III. 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 tradition of antient Greece placed to the account of their own Hercules whatever atchievement was performed fuperior to the ordinary prowess of mankind. Whereas the truth feems to be, that this tribunal was univerfally established among all the northern nations, and fo interwoven in their very conftitution, that the earliest accounts of the one give us alfo fome traces of the other. It's eftablishment however and ufe, in this island, of what date foever it be, though for a time greatly impaired and shaken 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 infifted on as the principal bulwark of our liberties; but efpecially by chap. 29. that no freeman shall be hurt in either his perfon or property; " nifi per legale judicium "parium fuorum vel per legem terrae." A privilege which is couched in almost 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 mispend the reader's time in fruitless encomiums on this method of trial: but fhall proceed to the diffection and examination of it in all it's parts, from whence indeed it's higheft encomium will arife: fince, the more it is fearched into and understood, the more it is fure to be valued, And this is a species of knowlege most abfolutely neceffary 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 because his own pro perty, his liberty, and his life, depend upon maintaining, in it's legal force, the conftitutional trial by jury.

e LL. Lorgrb. l. 3. 1. 8.1.4.

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

THE firft fpecies of extraordinary trial by jury is that of the grand affife, which was inftituted by king Henry the fe cond 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, instead of the barbarous and unchriftian custom of duelling. For this purpofe 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 Glanvil &; who, having probably advised the measure itself, is more than usually copious in defcribing it: and these, all together, form the grand affife, or great jury, which is to try the matter of right, and must now confift of fixteen jurors h.

ANOTHER fpecies of extraordinary juries, is the jury to try an attaint; which is a process commenced against a former jury, for bringing in a false verdict; of which we shall speak more largely in a subsequent chapter. At prefent I shall only obferve, that this jury is to confift of twenty-four of the best menin the county, who are called the grand jury in the attaint, to distinguish them from the first or petit jury; and these are to hear and try the goodness of the former verdict.

WITH regard to the ordinary trial by jury in civil cafes, I fhall purfue the fame method in confidering it, that I fct out with in explaining the nature of profecuting actions in general, viz. by following the order and courfe of the proceedings themselves, as the most clear and perfpicuous way of treating it.

f F. N. B. 4.

g. 2. 6. 11-21.

h Finch. L. 412. 1 Leon. 303.

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WHEN

WHEN therefore an ifiue 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 fheriff "that "he cause to come here on such 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 cause stands ready for a trial at the bar of the court itfelf: for all trials were there antiently had, in actions which were there firft 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 caufes of great importance or difficulty are still usually retained upon motion, to be tried at the bar in the fuperior courts. But when the ufage began, to bring actions of any trifling value in the courts of Westminster-hall, it was found to be an intolerable burthen to compel the parties, witneffes, 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 cause of action arofe and if it happened that they arrived there within that interval, then the cause was removed from the jurisdiction of the juftices at Weftminster to that of the justices in eyec. Afterwards when the juftices in eyre were fuperfeded by the modern juftices of affife (who came twice or thrice in the year into the feveral counties, ad capiendas affifas, to take or try writs of affife, of mort d'anceftor, novel difeifin, nusance,

i Append. No. II. §. 4& Semper dabitur dies partibus a juftitiaria de bance, fub tali conditione, “nifi

•‹ jufticiarii itinerantes prius venerint ad “partes illas." (Bra&. I. 3. tr. i. c. 11. §. 8.)

and

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and the like) a power was fuperadded by ftatute Weftm. 2. 13 Edw. I. c. 30. to thefe juftices of affife to try common iflues in trefpafs, and other lefs important fuits, with direc tions 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 caufe, 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 inferted in the writs of venire facias; that is, "that the fheriff should "cause the jurors to come to Weftminster (or wherever the "king's courts fhould be held) on such a day in eafter and "michaelmas terms; nifi prius, unlefs before that day, the "justices affigned to take affifes fhall come into his faid "county." By virtue of which the fheriff returned his jurors to the court of the juftices of aflife, which was fure to be held in the vacation before eafter and michaelmas terms; and there the trial was had.

AN inconvenience attended this provifion : principally be cause, as the fheriff 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 inquefts (except of affife and gaol-delivery) fhould be taken by writ of nifi prius, till after the sheriff had returned the names of the jurors to the court above. So that now in almost every civil cause the claufe of nifi prius is left out of the writ of venire facias, which is the fheriff's warrant to warn the jury; and is inferted in another part of the proceedings, as we fhall fee prefently.

FOR now the courfe is, to make the fheriff'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 ufually called iffiable 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

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