.7. , , و .n it I was nay be good ineffes viva ued as low is now mo iles. their own con was an antient way their judgment is delivered in court. that though no proofs ry might bring in a verto find according to their o do it according to the best eems to have arifen from the gnitions of affise, at the first ; the fheriff being bound to reew the truth of the fact, and the being to retire immediately from .r verdict according to their own perit hearing extrinfic evidence or receivm the judge. And the fame doctrine arus, the legate tu magis fcire babenda teftibus; tatis, et cujus aeftit, qui fimpliciter wifi trum unum eundemque. monem attulerint, an ad ea cafe 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 fufficiency of them all in point of law to maintain or overthrow the iffue: which draws the queftion of law from the cognizance of the jury, to be decided (as it ought) by the court. But neither these demurrers to evidence, nor the bills of exceptions, are at present so much [373] in ufe as formerly; fince the more frequent extenfion of the difcretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nifi prius, THIS open examination of witneffes viva voce, in the prefence of all mankind, is much more conducive to the clearing up of truth, than the private and fecret examination taken down in writing before an officer, or his clerk, in the ecclefiaftical courts, and all others that have borrowed their practice from the civil law: where a witnefs may frequently depofe that in private, which he will be ashamed to testify in a public and folemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dreffing up his depofitions 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 depofition is once taken. Befides, the occafional questions of the judge, the jury, and the counfel, propounded to the witneffes on a fudden, will fift out the truth much better than a formal fet of interrogatories previously penned and fettled and the confronting of adverfe witneffes is also another opportunity of obtaining a clear difcovery, which can never be had upon any other method of trial. Nor is the prefence of the judge, during the examination, a matter of fmall importance: for, befides the refpect and awe with which his prefence will naturally infpire the witness, he is able by use and experience to keep the evidence from wandering from the point in iffue. In fhort by this method of examination, and this only, the perfons who are to decide © Co. Litt. 72. 5 Rep. 104. d Hale's Hift. C. L. 254, 5, 6. upon upon the evidence have an opportunity of obferving the quality, age, education, understanding, behaviour, and inclinations of the witnefs; in which points all perfons must appear alike, when their depofitions are reduced to writing, and read to the judge, in the abfence of those who made them : and yet as much may be frequently collected from the manner in which the evidence is delivered, as from the matter of it. These are a few of the advantages attending this, the [374] English, way of giving teftimony, ore tenus. Which was alfo indeed familiar among the antient Romans, as may be collected from Quintilian; who lays down very good instructions for examining and cross-examining witneffes viva voce. And this, or fomewhat like it, was continued as low as the time of Hadrian f: but the civil law, as it is now modelled, rejects all public examination of witneffes. h As to fuch evidence as the jury may have in their own confciences, by their private knowlege of facts, it was an antient doctrine, that this had as much right to fway their judgment as the written or parol evidence which is delivered in court. And therefore it hath been often held, that though no proofs be produced on either fide, yet the jury might bring in a verdict. For the oath of the jurors, to find according to their evidence, was conftrued to be, to do it according to the best of their own knowlege. This feems to have arifen from the antient practice in taking recognitions of afflife, at the first introduction of that remedy; the sheriff being bound to return fuch recognitors as knew the truth of the fact, and the recognitors, when fworn, being to retire immediately from the bar, and bring in their verdict according to their own perfonal knowlege, without hearing extrinsic evidence or receiving any direction from the judge. And the fame doctrine (when attaints came to be extended to trials by jury, as well as to recognitions of aflife) was alfo applied to the case of common jurors; that they might efcape the heavy penalties of the attaint, in cafe they could fhew by any additional proof, that their verdict was agreeable to the truth, though not according to the evidence produced: with which additional proof the law [375] prefumed they were privately acquainted, though it did not appear in court. But this doctrine was again gradually exploded, when attaints began to be difufed, and new trials introduced in their ftead. For it is quite incompatible with the grounds, upon which fuch new trials are every day awarded, viz. that the verdict was given without, or contrary to, evidence. And therefore, together with new trials, the practice feems to have been first introduced, which now univerfally obtains, that if a juror knows any thing of the matter in iffue, he may be fworn as a witnefs, and give his evidence publicly in court. WHEN the evidence is gone through on both fides, the judge in the prefence of the parties, the counfel, and all others, fums up the whole to the jury; omitting all fuperBuous circumstances, obferving wherein the main question and principal ifiue lies, stating what evidence has been given to fupport it, with fuch remarks as he thinks neceffary for their direction, and giving them his opinion in matters of law arifing upon that evidence. THE jury, after the proofs are fummed up, unless the cafe be very clear, withdraw from the bar to confider of their verdict and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unlefs by permiffion of the judge, till they are all unanimously agreed. A method of accelerating unanimity not wholly unknown in other conftitutions of Europe, and in matters of greater concern. For by the golden bulle of the empire', if, after the congress is opened, the electors delay the election of a king of the Romans for thirty days, they fhall be fed only 375 with bread and water, till the fame is accomplished, But if our juries 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 fet afide the verdict. Alfo 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 pri- [ 376 ] vate; or if to prevent disputes they caft lots for whom they shall find; any of thefe circumftances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned", the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart". This neceffity of a total unanimity feems to be peculiar to our own constitution; or, at least, in the nembda or jury of the antient Goths, there was required (even in criminal cafes) only the confent of the major part; and in cafe of an equality, the defendant was held to be acquitted P (20). m Mirr. c. 4. 24. 41, 20, 21. n Lib. Aff. fot. 40. pl. 11. 19. pl. 6. P Stiern. l. 1. c. 4. See Barrington on the ftatutes. 19, (20) The learned Judge has difplayed much learning in the beginning of this chapter, to prove the antiquity of the trial by jury; but the trials referred to by the authors there cited, and even the judicium parium, mentioned in the celebrated chapter of magna charta, are trials which were fomething fimilar to that by a jury, rather than instances of a trial by jury according to it's prefent established form. The judicium pariùm feems ftrictly the judgment of a fubject's equals in the feudal courts of the king and barons. And fo little appears to be ascertained by antiquarians, refpecting the introduction of the trial in criminal cafes by two juries, that, although it is one of the most important, yet it is certainly one of the moft obfcure and inexplicable parts of the law of England. The unanimity of twelve men, fo repugnant to all experience of human conduct, paffions, and understandings, could hardly in any age have been introduced into practice by a deliberate act of the legislature. But |