But I will not mispend the reader's time in fruitless encomiums or this method of trial; but shall proceed to the dissection and examination of it in all its parts, from whence indeed its highest encomium will arise; since, the more it is searched into and understood, the more it is sure to be valued. And this is a species of knowledge most absolutely necessary 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-subjects; as because his own property, his liberty, and his life, depend upon maintaining, in its legal force, the constitutional trial by jury. [*351] Trials by jury in civil causes sont only hint diary and ordinary. The extraordinary I shall only briefly hint at, and confine the main of my observations to that which is more usual and ordinary. The first species of extraordinary trial by jury is that of the grand assise, which was instituted by king Henry the Second 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 unchristian custom of duelling. For this purpose a writ de magna assisa eligenda is directed to the sheriff (f), to return four knights, who are to elect and choose twelve others to be joined with them, in the manner mentioned by Glanvil (g); who, having probably advised the measure itself, is more than usually copious in describing it; and these, all together, form the grand assise, or great jury, which is to try the matter of right, and must now consist of sixteen jurors (h) (2), (3). Another species 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 (4); of which we shall speak more largely in a subsequent chapter. At present I shall only observe, that this jury is to consist of twenty-four of the best men in 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 cases, I shall pursue the same method in considering it, that I set out with in explaining the nature of prosecuting actions in general, viz. by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it. [*352] *When therefore an issue is joined, by these words, " and this the said A prays may be inquired of by the country," or, " and of this he puts himself upon the country, and the said B does the like," the court awards a writ of venire facias upon the roll or record, commanding the sheriff "that he cause to come here on such a day, twelve free and lawful men, liberos et legales homines, of the body of his county, by whom the truth of the matter may be better known, and who are neither of kin to the aforesaid A, nor the aforesaid B, to recognize the truth of the (f) F. N. B. 4. (2) It seems not to be ascertained that any specific number above twelve is absolutely necessary to constitute the grand assise; but it is the usual course to swear upon it the four knights and twelve others. Viner, Trial, Xe. See the proceedings upon a writ of right before the sixteen recognitors of the grand (A) Finch, L. 412. 1 Leon. 303. assise, in 3 Wils. 541. (3) Trials by the grand assise are abolished in New-York. (2 R. S. 409, § 4.) (4) Abolished by 6 Geo. IV. c. 50. s. 60. See tit. Legal Proceedings, note infra. Also abolished in New-York. (2 R. S. 421, 69.) issue between the said parties (i)." And such writ was according.y issued to the sheriff (5).. Thus the cause stands ready for a trial at the bar of the court itself. for all trials were there anciently had, in actions which were there firs. commenced; which then never happened but in matters of weight and consequence, all trifling suits being ended in the court-baron, hundred, or county courts and indeed all causes of great importance or difficulty are still usually retained upon motion, to be tried at the bar in the superior courts. But when the usage 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, witnesses, and jurors, to come from Westmorland perhaps or Cornwall, to try an action of assault at Westminster. A practice therefore very early obtained, of continuing the cause from term to term, in the court above, provided the justices in eyre did not previously come into the county where the cause of action arose (k); and if it happened that they arrived there within that interval, then the cause was removed from the jurisdiction of the justices at Westminster to that of the justices in eyre. Afterwards, when the justices in eyre were superseded by the modern justices of assise (who came twice or thrice in the year into the several counties, ad capiendas assisas, to take or try writs of assise, of mort d'ancestor, novel disseisin, nuisance, *and the like),72 [*353] a power was superadded by statute Westm. 2. 13 Edw. I. c. 30. to these justices of assise to try common issues in trespass, and other less important suits, with direction to return them (when tried) into the court above, where alone the judgment should be given. And as only the trial, and not the determination of the cause, was now intended to be had in the court below, therefore the clause of nisi prius was left out of the conditional continuances before mentioned, and was directed by the statute to be inserted in the writs of venire facias; that is, "that the sheriff should cause the jurors to come to Westminster (or wherever the king's court should be held) on such a day in easter and michaelmas terms; nisi prius, unless before that day the justices assigned to take assises shall come into his said county." By virtue of which the sheriff returned his jurors to the court of the justices of assise, which was sure to be held in the vacation before easter and michaelmas terms; and there the trial was had. An inconvenience attended this provision: principally because, as the sheriff 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 reason, by the statute 42 Edw. III. c. 11. the method of trials by nisi prius was altered; and it was enacted that no inquests (except of assise and gaol delivery) should be taken by writ of nisi 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 clause of nisi prius is left out of the writ of venire facias, which is the sheriff's warrant to warn the jury; and is inserted in another part of the proceedings, as we shall see presently. () Appendix, No. III. 4. (k) Semper dabitur dies partibus ab justiciariis de banco, sub tali conditione, “nisi justiciarii iti (5) Venires, except for foreign juries, are abolished in New-York. (2 R. S. 410, ◊ 9.) The sheriff summons such jurors as are nerantes prius venerint ad partes illas." (Bract. L 3, tr. 1, c. 11, 48.) named on a list furnished to him by the clerk of the county. (Id. 414, § 30.) As to trials at bar, see note 1. p. 325, ante. (72) See Hov. n. (72) at the end of the Vol. B. III. For now the course is, to make the sheriff's venire returnable on the last return of the same term wherein issue is joined, viz. hilary or trinity terms; which, from the making up of the issues therein, are usually called issuable 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 [354] jury is not summoned, and therefore, not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas writ of habeas corpora juratorum, and in the king's bench a distringas, commanding the sheriff to have their bodies or to distrain them by their lands and goods, that they may appear upon the day appointed. The entry therefore on the roll or record is ()," that the jury is respited, through defect of the jurors, till the first day of the next term, then to appear at Westminster; unless before that time, viz. on Wednesday the fourth of March, the justices of our lord the king, appointed to take assises in that county, shall have come to Oxford, that is, to the place assigned for hold. ing the assises." And thereupon the writ commands the sheriff to have their bodies at Westminster on the said first day of next term, or before the said justices of assise, if before that time they come to Oxford; viz. on the fourth of March aforesaid. And, as the judges are sure to come and open the circuit commissions on the day mentioned in the writ, the sheriff returns and summons the jury to appear at the assises, and there the trial is had before the justices of assise and nisi prius: among whom (as hath been said) (m) are usually two of the judges of the courts of Westminster, the whole kingdom being divided into six circuits for this purpose. And thus we may observe that the trial of common issues, at nisi prius, which was in its original only a collateral incident to the original business of the justices of assise, is now, by the various revolutions of practice, become their principal civil employment: hardly any thing3remaining in use of the real assises, but the name. If the sheriff be not an indifferent person; as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury, but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff, to execute process when he is deemed an improper person (6). If any exception lies to the coroners, the venire shall be directed to [*355] two clerks of the court, or two persons of the county named by the court, and sworn (n). And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array. Let us now pause awhile, and observe (with sir Matthew Hale) (0) in these first preparatory stages of the trial, how admirably this constitution is adapted and framed for the investigation of truth beyond any other method of trial in the world. For, first, the person returning the jurors is a man of some fortune and consequence; that so he may be not only the (2) Appendix, No. II. 4. (m) See page 59. (6) In New-York, one list of jurors for all Causes in the court is made out by the clerk of the county, under the supervision of the sheriff or under-sheriff, and a county judge or justice of the peace, or of two judges or jus lices of the peace (2 R. 8. 414, § 28.) It is (n) Fortesc. de Laud. LL. c. 25. Co. Litt. 158. (0) Hist. C. L. c. 12. no objection to the panel that the sheriff is a party, (id. 420, § 5.) although, by 2 R. S. 441, 84, where the sheriff is a party process is to be executed by the coroner, excnt where otherwise directed by law (73) See Hov. n. (73) at the end of the Vol. B. III less tempted to commit wilful errors, but likewise be responsible for the faults of either himself or his officers: and he is also bound by the obligation of an oath faithfully to execute his duty. Next, as to the time of ther return: the panel is returned to the court upon the original venire, and the jurors are to be summoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their sufficiency or insufficiency, characters, connexions, and relations, that so they may be challenged upon just cause (7); while at the same time by means of the compulsory process (of distringas, or habeas corpora) the cause is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance: which in causes of weight and consequence is at the bar of the court; but in ordinary cases at the assises, held in the county where the cause of action arises, and the witnesses and jurors live; a provision most excellently calculated for the saving of expense to the parties. For though the preparation of the causes in point of pleading is transacted at Westminster, whereby the order and uniformity of proceeding is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one attorney being able to transact the business of forty clients. But the troublesome and most expensive attendance is that of jurors and witnesses at the trial; which therefore is brought home to them, in the country where most of them inhabit. Fourthly, the persons before whom they are to [356] appear, and before whom the trial is to be held, are the judges of the superior court, if it be a trial at bar; or the judges of assise, delegated from the courts at Westminster by the king, if the trial be held in the country persons, whose learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no small influence upon the multitude. The very point of their being strangers in the county is of infinite service, in preventing those factions and parties, which would intrude in every cause of moment, were it tried only before persons resident on the spot, as justices of the peace, and the like. And, the better to remove all suspicion of partiality, it was wisely provided by the statutes 4 Edw. III. c. 2.8 Ric. II. c. 2. and 33 Hen. VIII. c. 24. that no judge of assise should hold pleas in any county wherein he was born or inhabits (8). And, as this constitution prevents party and faction from intermingling in the trial of right, so it keeps both the rule and the administration of the laws uniform. These justices, though thus varied and shifted at every assises, are all sworn to the same laws, have nad the same education, have pursued the same studies, converse and consult togetber, communicate their decisions and resolutions, and preside in those courts which are mutually connected and their judgments blended to gether, as they are interchangeably courts of appeal or advice to each other. And hence their administration of justice and conduct of trials are consonant and uniform, whereby that confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment (9), (10). But let us now return to the assises. ") In New-York they are summoned 6 days before the sitting of the court. (2 R. S. 414, 30.) (8 No longer so. See ante, p. 6. n. 25. (9) In New-York, although the Supreme Court judges may, they very rarely do, preside at trials: the circuit judges being specially appointed for that purpose. (2 R. S. 203, 14.) See i. 411, § 12, &c. as to qualifications of jurors and manner of drawing them. (10) On the 22d of June, 1825, the 6 Geo. IV. c. 50. was passed for consolidating and amending the laws relative to jurors and ju ries, and came into complete operation the 1st of January, 1826. When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assises, and enter it with the proper officer, in order to its being called on in course. If it be not so entered, it cannot be tried; therefore it is in the plaintiff's breast to delay any trial by not carrying down the record: unless the defendant, being fearful of such neglect in the plaintiff, and willing to discharge himself from [*357] the action, w... himself undertake to bring on "the trial, giving pro per notice to the plaintiff. Which proceeding is called the trial by proviso; by reason of the clause then inserted in the sheriff's venire, viz. "proviso, provided that if two writs come to your hands (that is, one from the plaintiff and another from the defendant), you shall execute only one of them." But this practice hath begun to be disused, since the statute 14 Geo. II. c. 17. which enacts, that if, after issue joined, the cause is not carried down to be tried according to the course of the court, the plaintiff shall be esteemed to be nonsuited, and judgment shall be given for the defendant as in case of a nonsuit. In case the plaintiff intends to try the cause, he is bound to give the defendant (if he lives within forty miles of London) eight days' notice of trial; and, if he lives at a greater distance, then fourteen days' notice, in order to prevent surprise (11), (12): and if the plaintiff then changes his mind, and does not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by the same last mentioned statute (13). The defendant, however, or plaintiff, may, upon good cause shewn to the court above, as upon absence or sickness of a material witness, obtain leave upon motion to defer the trial of the cause till the next assises (14). But we will now suppose all previous steps to be regularly settled, and the cause to be called on in court. The record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive process, the writ of habeas corpora, or distringas, with the panel of jurors annexed, to the judge's officer in court. The jurors contained in the panel are either special or common jurors. Special juries were originally introduced in trials at bar, when the causes were o too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholder's book; and the officer is to take [*358] *indifferently forty-eight of the principal freeholders in the pre (11) This practice is confined to causes tried in London and Middlesex. Tidd, 8 ed. 814. In all causes tried at an assises, ten days' notice suffice. Tidd, 8 ed. 815. (12) In New-York, 14 days' notice of trial is necessary, (2 R. S. 410, 7.) except where special provision is made in a different manner for some courts. (13) At the sittings in London or Westminster, when defendant resides within forty miles from London, two days' notice of countermand, before it is to be tried, is sufficient. Tidd, 8 ed. 81. n. (14) Where there have been no proceedings within four terms, a full term's notice of trial must be given previous to the assises or sit tings, unless the cause has been delayed by the defendant himself, by an injunction or other means. 2 Bl. Rep. 784. 3 T. R. 530. (15.) If the defendant proceeds to trial by proviso, he must give the same notice as would have been required from the plaintiff. 1 Cromp. Prac. 219. Sometimes the courts impose it as a condition upon the defendant, that ne shall accept short notice of trial, which in country causes shall be given at the least four days before the cornmission day, one day be ing exclusive, and the other inclusive. 3 T. R. 600. But in town causes, two days' notice seems to be sufficient in such a case. Tidd, 250. (15) In New-York this practice does no prevail. |