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lenges to the favour, or where the party are no principal challenge, but objects only to 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 find him indifferent, he shall be sworn; and then he and two triors shall try the next, and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the
4. Challenges propter delictum are for some crime or misdemeanor 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; if he has been branded, whipped, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, premunire, or for
Besides 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 jurors themselves, which are matter of exemption, whereby their service is excused, and not excluded. As by statute Westm. 2, 13, Edw. I. c. 38, sick and decrepit persons, persons not commorant in the county, and men above seventy years old; and by the statute of 7 and 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 persons, counsel, attornies, officers of the courts, and the like; all of whom if empannelled, must show their special exemption. Clergymen are also usually excused, out of favour and respect to their function: but if they are seized of lands and tenements, they are in strictness liable to be empannelled, in respect of their lay fees, unless they be in the service of the king, or some bishop.
If 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 common law, and must still be done at a trial at bar, if the jurors make default. But at the assizes, or nisi prius, by virtue of the statutes 35 Hen. VIII. c. 6, and other subsequent statutes, the judge is empowered at the prayer of either party to award a tales de circumstantibus, of persons present in court, to be joined to the other jurors to try the cause, who are however liable to the same challenges as the principal jurors.
When a sufficient number of persons empannelled or 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 denominated the jury, jurata, and jurors, sc. juratores.
The jury are now ready to hear the merits; and to fix their attention the closer to the facts which they are empannelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question at issue. 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 lastly, upon what point the issue is joined, which is there sent down to be determined. 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 evidence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence, and then the party which began is heard by way of reply.
Evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or spirit in issue, either on the one side or on the other, and no evidence ought to be admitted to any other point.
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 knowledge. The former or proofs (to which in common speech the name of evidence is usually confined,) are either written, or parol, that is, by word of mouth. Written proofs, or evidence, are, 1, records, and 2, ancient deeds of thirty years' standing, which prove themselves: but 3, modern deeds, and 4, other writings must be attested and verified by parol evidence of witnesses. 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 fact of not producing it, is a presumption that it would have detected some falsehood that at present is concealed.
With regard to parol evidence, or witnesses, it must first be remembered, that there is a process to bring them in by writ of subpœna ad testificandum, 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 £10 to the party aggrieved and damages equivalent to the loss sustained by want of his evidence. But no witness, unless his reasonable 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.
All witnesses, of whatever religion or country, that have the use of
their reason, are to be received and examined, except 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. Infamous persons are such as may be challenged as jurors propter delictum; and, therefore, shall be admitted to give evidence to inform that jury, with whom they were too scandalous 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 infamy. And no counsel, attorney, or other person entrusted 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 knowledge by virtue of such trust and confidence, but he may be examined as to mere matters of fact, as the execution of a deed or the like, which might have come to his knowledge without being entrusted in the cause.
The oath administered to the witness is not only that which 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 as to the point or not. And all this evidence is to be given in open court, in the presence of the parties, their attornies, the counsel, and all bystanders, and before the judge and jury; each party having liberty to except to its 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 side 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 to do so, the party may have a compulsatory 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 is 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 all of them in point of law, to maintain or overthrow the issue which draws the question of law from the
cognizance of the jury, to be decided by the court. But neither these demurrers to evidence, nor the bills of exceptions, are at present so much 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 nisi prius.
When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence.
The jury after the evidence is summed up, unless the case be very clear, withdraw from the bar to consider of their verdict, and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. If the jury eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is fineable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their agents, after they are gone from the bar, or if they receive any fresh evidence in private, or if to prevent disputes they cast lots for whom they shall find; any of these circumstances will utterly vitiate the verdict.
A verdict (vere dictum), is either privy or public, but the only effectual and legal verdict is the public verdict, in which they openly declare to have found the issue for the plaintiff or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury upon which the action is brought.
Sometimes, if there arises in the case any difficult matter of law, the jury, for the sake of better information, and to avoid the danger of having their verdict attainted, will find a special verdict, which is grounded on the statute, Westm. 2, 13 Edw. I. c. 30. And herein they state the naked facts, as they find them to be proved, and pray the advice of the court thereon; concluding conditionally, that if upon the whole matter the court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then for the defendant. This is entered at length on the record, and afterwards argued and determined in the court at Westminster, whence the issue came to be tried.
Another method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge or the court above, on a special case, stated by the counsel on both sides with regard to a matter of law; but the jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated question of fact and law; and, without either special verdict or special case, may find a verdict absolutely either for the plaintiff or defendant.
When the jury have delivered in their verdict, and it is recorded in court, they are then discharged.*
TREASON, according to lord Coke, is derived from trahir, signifying tɔ betray; and trahison, by contraction treason, is the betraying itself.
When treason is spoken of, it is generally understood to be high treason, unless petit-treason be specially named. Any justice of the peace may, either upon his own knowledge or the complaint of others, cause any person to be apprehended for any such offence. And such justice may take the examination of the person apprehended, and the information of all those who can give any material evidence against him, and put the same in writing; and also bind over such who are able to give any such evidence to the king's bench, or gaol delivery, and certify his proceedings to such
No justice of the peace can accept of bail for a person commited for high treason, and he is required immediately to transmit an account of a traitor's examination to the Secretary of State for the Home Depart
Lord Hales calls the statute of 25 Edward III. c. 2, which defines treason, a sacred act; lord Coke calls it an excellent act, and both the king and parliament who made it, blessed; which act settled and defined all treasons which before had been uncertain. It was again by 1 Mar. c. 1, reinforced and made the only standard of treason, and all other statutes between 25 Ed. III. and 1 Mar., which made many offences high or petittreason or misprision of treason, were abrogated; so that no offence is to be esteemed high treason, unless it be declared to be such by the statute of 25 Edward III., or made such by some statute since the 1 Mary.
The statute of 25 Edward III. above alluded to, is as follows :
"Whereas divers opinions have been before this time, in what case treason shall be laid, and in what not; the king, at the request of the lords and commons, hath made a declaration in the manner as hereafter followeth, that is to say, when a man doth compass or imagine the death of our lord the king, or of our lady his queen, or of their eldest son and heir, or if a man do violate the king's companion, (that is his wife,) or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir, or