they shall be named in the said list; and in such divisions as has been usual, or as the court may deem proper. Ibid. First and second jury. How vacancies on And the first twelve persons thus empannelled, shall be the jury; and when there shall have been venires, and returns for two juries, shall be called the first jury; and the next number of twelve, shall form the second jury: Provided, that in case of the courts excusing for cause, any person of either of said juries, and there being any supernumeraries, the vacancy shall be supplied, and the pannels be filled and completed, on the above- juries shall be supmentioned principles, in the same manner as if the person excused, had not been named in the jury list: And provided also, in case of supernumeraries, on request, the court may excuse individuals of either pannel, who may not have sufficient reasons to exempt them from meraries. serving, so far as their places can be supplied, by the supernumeraries, and by their consent. And the juries, being thus impannelled, shall, respectively, either retire and choose by ballot their respective foremen, or shall make such a choice on their retiring with the first cause with which they shall be charged, as may best accommodate the arrangements and business of the court, of which choice the court shall be notified, on the jury's return. X. Jurors' fees. By statute it is enacted, that the grand jurors who shall attend at the supreme judicial court, the court of common pleas, or the municipal court for the town of Boston, and the jurors for trials who shall attend either of the courts aforesaid, shall each be allowed one dollar and twenty-five cents a day for their attendance, and six cents a mile for their travel out and home; to be paid out of the county treasuries, respectively. XI. Of provisional jurors. By the same statute, if at any time, from the existing state of the country, the nature or quantum of the busi plied. The court empowered to excuse jurors, in case of supernu Ibid. Election of foremen. Ibid, s. 16. Ibid. s. 12. Cases in which courts Jurors. ness pending, or from any other cause, the courts ressend for provisional pectively shall be of opinion, that it will be a hardship to one set of traverse, or petit jurors, to serve the whole of the term, and that it would best meet the interest of the public, and of individuals, to have a second set of jurors to serve a part of the term, it shall be in the discretion of the court to direct their clerk, when they shall issue their venires to the constables, in manner before directed, for the usual number of jurors, to require in the same venire, that a second draft of an additional number, equal to the first number, shall be made, which shall be called provisional jurors, and shall form the second set, so far as they should be needed, and be especially sent for by the court. Venies for such tors. Ibid. How such jurors must Ibid. Such jurors to hold ness. Ibid. Power of the court to jurors, on condition of jurors. And the constables shall also notify these jurors, four days before the sitting of the court, of their being drawn as provisional jurymen, in the same manner as is provided for the notification of the first set of jurors. And such provisional jurors shall hold themselves in readiness, and be obliged to attend and serve, when called for by the court, in the course of that term. And in all cases, when provisional jurors shall be drawn as aforesaid, it shall be in the discretion of the excuse the first set of court, at any time during the sessions, to excuse, on notice to provisional request, from further attendance, any individual of the first set of jurors, on the condition of his giving seasonable and personal notice to such a provisional juror or jurors, for his or their immediate attendance, as shall be designated and called for, by the direction of the court. Ibid. s. 4. Duty of constables to Particularly the se- clerk. XII. Duty of constables in regard to venires. By the same statute, the constables of their respective towns, on the reception of venires, shall, in the usual form, notify the freeholders and other inhabitants, in their towns, qualified to vote in the election of representatives, and particularly the selectmen and town clerk, to assemble and be present at the drafts and selection of Η At what time town held. the jurors called for; which meeting shall be held at least, six days, and not more than twenty days, before meetings are to be the sitting of the court to which the venire shall be returnable. Ibid. s. 13. Manner of notifying The same statute has further enacted, that the manner in which constables, upon the receipt of venires for jurors, shall notify the qualified inhabitants of their towns. respective towns to assemble, and to be present at their drafts as aforesaid, shall, unless otherwise ordered by the said towns respectively, be the same as has been, or shall be established therein, for notifying and warning their annual town meetings. But if any town shall, at a legal town meeting, order or appoint that the notification shall be by the constables giving notice to the selectmen, or the major part of them, and the town clerk, or by any other mode, such notification shall be sufficient. XIII. The oaths of jurors. Ibid. s. 14. The first grand By the same statute, the oaths which shall be administered to the grand, traverse, and petit jury, respectively, when they shall be impannelled, shall be in the forms following, namely:-(Grand jurors' oath.) "You, as grand jurors of this inquest for the body of this county of S. jurors' oath. solemnly swear that you will diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge; the commonwealth's counsel, your fellows, and your own, you shall keep secret; you shall present no man for envy, hatred or malice, neither shall you leave any man unpresented, for love, fear, favour, affection, or hope of reward; but you shall present things truly, as they come to your knowledge, according to the best of your understanding. So help you God." (The other grand jurors' oath.) "The same Oath of the other oath which your fellows have taken, on their part, you grand jurors. Oath of the traverse and petit jurors. Oath in criminal cases not capital. Oath in capital cases. and each of you, swear, that in all causes betwixt party truly try the issue between the commonwealth and the defendant, or defendants, (as the case may be) according to your evidence. So help you God." (Form of the oath in capital cases.) "You shall well and truly try, and true deliverance make, betwixt the commonwealth and the prisoner at the bar, whom you shall have in charge, according to your evidence. So help you God." Provided, that when any person of the denomination of christians Proviso as to quakers, called quakers, cannot conscientiously take the oath prescribed, such person shall be allowed to make affirmation, substituting the word "affirm," instead of the word "swear;" and also the words, "this you do under the pains and penalties of perjury," instead of the words, "So help you God." Ibid. s. 15. May give a special verdict. XIV. Power and duty of jurors. By the same statute, it shall be the business of the grand juries to present all crimes, offences, and breaches of the law, cognizable by the respective courts at which they shall attend; and of the traverse and petit juries, respectively, to try according to the established forms and principles of law, all causes which shall be committed to them, and to decide at their discretion, by a general verdict, both the fact and the law, involved in the issue; or to find a special verdict or a general verdict, subject to the opinion of the court on a case or point stated and reserved by agreement of the parties, or their council, under the direction of the court, as making a part of the record to be entered as such. (1) If a juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court. 3 Bl. Com. 375. Ibil Duty of the court in case a jury returns without having verdict. And in case such jurors, after a due and thorough deliberation on any civil cause, with which they may be charged, shall return into court without having been able to agree on a verdict, it shall be in the discretion of the agreed upon a court (explaining to them its understanding of questions of law, if any should be proposed, and re-stating what any witness had testified, should that be requested by the jury) to send them out again for further deliberation; and if the jury should return a second time, without being able to agree on a verdict, they shall not be liable to be sent out a third time, unless they shall state some legal difficulties for explanation, which had not been previously attended to by the court. XV. Proceedings in case a juror is suspected of prejudice in the cause; or where a party who obtains a verdict, has given entertainment to any of the jurors. By the same statute, the justices of the respective courts aforesaid, shall, on motion from either party, in a suit, put any juror upon oath, whether he is any way related to either party, or hath formed or given any opinion, or is sensible of any particular interest or prejudice in the cause; and if, thereupon, it shall appear to the court, that such juror does not stand indifferent in the cause, another juror shall be called or returned, and be placed, for the trial of that cause, in his stead. And if any person obtaining a verdict in his favour in any court in this commonwealth, shall, during the session of the said court, in which such verdict shall be obtained, give to any of the jurors in said cause, knowing him or them to be such, any victuals, drink or entertainment, or other article of treat, by way of gratuity, whether before or after such verdict, on due proof thereof it shall be a sufficient reason, at the discretion of the court, to set aside the verdict, at the election of the adverse party, and award a new trial of the cause. Ibid. s. 9. Jurors, when suspected of pr judice, may be put upon oath. Ibid. s. 17. aside, when the party Verdict may be set obtaming a verdict as entertained one or more of the jury. |