to 107. per annum in England, and 67. in Wales, of freehold lands or copyhold; which is the first time that copyholders (as such) were admitted to serve upon juries in any of the king's courts, though they had before been admitted to serve in some of the sheriff's courts, by statutes 1 Ric. III, c. 4, and 9 Hen. VII, c. 13. And, lastly, by statute 3 Geo. II, c. 25, any leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of 20l. per annum over and above the rent reserved, is qualified to serve upon juries. (9) When the jury is de medietate linguæ, that is, one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall be *cause of challenge to the alien; for, as he is incapable to hold any, this would totally defeat the [*363] privilege. (d)

3. Jurors may be challenged propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree; (e) that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him: all these are principal causes of challenge; which, if true, cannot be overruled, for jurors must be omni exceptione majores. Challenges to the favour, are where the party hath no principal challenge: but objects only some probable circumstances of suspicion, as acquaintance and the like; (f) the validity of which must be left to the determination of triors, whose office 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 shali be sworn; and then he and the two triors shall try the next; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest. (g) (10)

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; or to be branded, *whipt, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, præmunire, or forgery; or, lastly, [*364] if he hath proved recreant when champion in the trial by battle, and thereby hath lost his liberam legem. A juror may himself be examined on oath of

(e) Finch, L. 401.

(d) See stat. 2 Hen. V, st. 2, c. 3. 8 Hen. VI, c. 29. (f) In the nembda, or jury of the ancient Goths, three challenges only were allowed to the favour, but the principal challenges were indefinite. "Licebat palam excipere, et semper ex probabili causa tres repudiare etiam plures ex causa prægnanti et manifesta." Stiernhook, l. 1, c. 4. g) Co. Litt. 158.

(9) In England one must be between 21 and 60 years of age, and must be the owner of some interest in real estate in the county, or be a householder taxed on at least £30 for the poor rate, or must occupy a house with at least fifteen windows. See 6 Geo. 4, c. 50, and 33 and 34 Vict. c. 77. In the United States a juror must usually have the qualifications of an elector of the state. Proffatt, Jury Trial, § 116.

(10) The whole subject of challenges was very fully considered in the case of Freeman v. People, 4 Denio, 9, to which the reader is referred. As to what opinion formed or expressed by a juror will be sufficient ground for challenge to the favor, see 1 Burr's Trial, 416; Osiander's Case, 3 Leigh, 785; People v. Bodine, 1 Denio, 307; Commonwealth v. Knapp, 9 Pick., 496; Smith v. Eames, 4 Ill., 76; Bradford v. State, 15 Ind., 347; Holt v. People, 18 Mich., 224; Maddox v. State, 32 Ga., 581.

The practice upon challenges varies so much in different states, that the American reader will expect to consult and be guided by the book of practice in use in his own state. As to disqualification from relationship, see Den v. Clark, Coxe, 444; Paddock v. Wells, 2 Barb. Ch., 331; Hasceig v. Tripp, 20 Mich., 216.

voir dire, veritatem dicere, with regard to such causes of challenge as are not to his dishonor or discredit; but not with regard to any crime, or any thing which tends to his disgrace or disadvantage. (h)

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 the jurors themselves, which are matter of exemption; whereby their service is excused, and not excluded. As, by statute West. 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 Wm. 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, attorneys, officers of the courts, and the like; all of whom, if impanelled, 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 impanelled in respect of their lay-fees, unless they be in the service of the king or some bishop: "in obsequio domini regis, vel alicujus episcopi." (i) (11)

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 be still so done at a trial at bar, if the jurors make default. But at the assizes, or nisi prius, by virtue of the statute 35 Hen. VIII, c. 6, and other subsequent [*365] *statutes, the judge is empowered, at the prayer of either party, to award a tales de circumstantibus (j) (12) of persons present in court, to be joined to the other jurors, to try the cause; who are liable, however, to the same challenges as the principal jurors. This is usually done, till the legal number of twelve be completed; in which patriarchal and apostolical number Sir Edward Coke (k) hath discovered abundance of mystery. (1)

When a sufficient number of persons impanelled, 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.

We may here again observe, and, observing, we cannot but admire, how scrupulously delicate, and how impartially just, the law of England approves itself, in the constitution and frame of a tribunal thus excellently contrived for the test and investigation of truth; which appears, most remarkably. 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In its caution against all partiality and bias, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shown of malice or favour to either party. The prodigious multitude of exceptions or challenges allowed to jurors, who are the judges of fact, amounts nearly to the same thing as was practised in the Roman republic, before she lost her liberty: that the select judges should be appointed by the prætor, with

(h) Co. Litt.. 158, b.

Appendix, No. II, § 4.

(1) F. N. B. 166. Reg. Brev. 179.

(k) 1 Inst. 155.

Pausanias relates that at the trial of Mars, for murder, in the court denominated Areopagus from that incident, he was acquitted by a jury composed of twelve pagan deities. And Dr. Hickes, who attributes the introduction of this number to the Normans, tells us that among the inhabitants of Norway, from whom the Normans, as well as the Danes, were descended, a great veneration was paid to the number twelve: "nihil sanctius, nihil antiquius fuit; perinde ac si in ipso hoc numero secreta quædam esset religio." Dissert. Epistolar, 49. Spelm. Gloss. 329.

(11) Clergymen, Roman Catholic priests, and dissenting ministers, are now excused. (12) In general, no writ is issued for this purpose in the United States, but the court, by order, directs the sheriff to summon from the bystanders the necessary number of talesmen to fill the panel.

the mutual consent of the parties. *Or, as Tully (m) expresses it: [*366]

"neminem voluerunt majores nostri, non modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima, esse judicem; nisi qui inter adversarios convenissit.”

Indeeed, these selecti judices bore, in many respects, a remarkable resemblance to our juries: for they were first returned by the prætor: de decuria senatoria conscribuntur; then their names were drawn by lot, till a certain number was completed: in urnam sortito mittuntur, ut de pluribus necessarius numerus confici posset: then the parties were allowed their challenges: post urnam permittitur accusatori, ac reo, ut ex illo numero rejiciant quos putaverint sibi, aut inimicos, aut ex aliqua re incommodos fore: next they struck what we call a tales; rejectione celebrata, in eorum locum qui rejecti fuerunt subsortiebatur prætor alios, quibus ille judicum legitimus numerus compleretur; lastly, the judges, like our jury, were sworn; his perfectis, jurabant in leges judices, ut obstricti religione judicarent. (n)

The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impanelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue. For the issue is said to lie, and proof is always first required, upon that side which affirms the matter in question: in which our law agrees with the civil; (o) "ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum-negantis probatio nulla sit." 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 set down to be determined. Instead of which, (p) formerly the whole record and process of the pleadings was read to *them in English by the court, and the matter in issue clearly explained to their capacities. The [*367] 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.

The nature of my present design will not permit me to enter into the numberless niceties and distinctions of what is, or is not, legal evidence to a jury. (q) I shall only, therefore, select a few of the general heads and leading maxims, relative to this point, together with some observations on the manner of giving evidence.

And, first, evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other; and no evidence ought to be admitted to any other point. Therefore upon an action of debt, when the defendant denies his bond by the plea of non est factum, and the issue is, whether it be the defendant's deed or no; he cannot give a release of this bond in evidence: for that does not destroy the bond, and therefore does not prove the issue which he has chosen to rely upon, viz., that the bond has no existence.

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

(m) Pro Cluentio, 43.

(n) Ascon. in Cic. Ver. 1, 6. A learned writer of our own, Dr. Pettingal, hath shown in an elaborate work (published A. D. 1769) so many resemblances between the dikαóræι of the Greeks, the judices selecti of the Romans, and the juries of the English, that he is tempted to conclude that the latter are derived from the former.

(0) Ff. 22, 3, 2. Cod. 4, 19, 23.

(p) Fortesc. c. 26.

(a) This is admirably well performed in Lord Chief-baron Gilbert's excellent treatise of evidence,—a work which it is impossible to abstract or abridge, without losing some beauty and destroying the chain of the whole, and which hath lately been engrafted into a very useful work, The Introduction to the Law of Nisi Prius, 4to. 1767.

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years standing, which prove themselves; (13) but 3. Modern deeds; and 4. Other writings, must be attested and verified by parol evidence of [*368] 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. (14) For if it be found that there is any better evidence existing than is produced, the very not producing it is a presumption that it would have detected some falsehood that at present is concealed. Thus, in order to prove a lease for years, nothing else shall be admitted but the very deed of lease itself, if in being; but if that be positively proved to be burnt or destroyed (not relying on any loose negative, as that it cannot be found, or the like), then an attested copy may be produced; or parol evidence be given of its contents. So, no evidence of a discourse with another will be admitted, but the man himself must be produced; yet in some cases, (as in proof of any general customs, or matters of common tradition or repute), the courts admit of hearsay evidence, or an account of what persons deceased have declared in their lifetime: but such evidence will not be received of any particular facts. (15) So, too, books of account, or shop-books, are not allowed of themselves to be given in evidence for the owner; but a servant who made the entry may have recourse to them to refresh his memory; and, if such servant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence: (r) for as tradesmen are often under a necessity of giving credit without any note or writing, this is therefore, when accompanied with such other collateral proofs of fairness and regularity, (s) the best evidence that can then be produced. However, this dangerous species of evidence is not carried so far in England as abroad; (t)

(13) Wills in this respect are like deeds. picion, and come from the proper custody.

(t) Gail, observat. 2, 20, 23.

Both must be free from just grounds of sus

It is much safer to say in these cases, and is much nearer strict accuracy, not that the deed proves itself, but that its authenticity may be presumed from the circumstances: such as the long acquiescence of parties interested to dispute it, and who must be supposed to have satisfied themselves originally that the conveyance was effectual. But these circumstances are to be proved like other facts. See 1 Greenl. Ev., §§ 21, 142, 145, 570; 1 Stark. Ev., 93, 523, and especially Phil. Ev. by Cowen, Hill and Edwards, vol. 2, 475-480.

(14) Primary evidence, the best evidence, is that kind of proof which, under any possible circumstances, affords the greatest certainty of the fact in question; it is illustrated by the case of written documents, the instrument itself being always regarded as the primary or best possible evidence of its existence and contents. If the execution of an instrument is to be proved, the primary evidence is the testimony of the subscribing witness, if there be one. Until it is shown that the production of the primary evidence is out of the party's power, no other proof of the fact is in general admitted. All evidence falling short of this degree is termed "secondary." The distinction refers to the "quality and not to the strength of the proof." 1 Greenl. Ev.. § 84, and see 1 Stark. Ev., 641-649; Reynold's Steph. Ev., ch. 9.

As to whether there are degrees in secondary evidence, see note to 1 Greenl. Ev., § 84. (15) The term hearsay applies as well to written as to oral evidence. As defined by Prof. Greenleaf hearsay "denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person." 1 Greenl. Ev.. § 99. In general such evidence is inadmissible, but there are exceptions to the rule excluding it; thus if the fact that the declaration was made and not its truth or falsity is the question; expressions of feeling, if the existence of such feeling is the question; in cases of pedigree, the declarations of relatives; declarations as to public and general rights by parties who had means of knowledge; declarations against the interest of the party making them; in cases of murder or manslaughter, dying declarations as to the cause of death, or circumstances surrounding it, made by the the injured party when he has given up all hope of recovery; admissions and confessions. See 1 Greenleaf Ev., § 156, et seq.; Reynolds's Steph. Ev., ch. IV.

Testimony of a witness given on a former trial, where the parties had an opportunity to examine him, may be received if the witness is dead, or is out of the jurisdiction, or insane and unable to testify, or if he has been summoned and is kept away by the adverse party. 1 Greenl. Ev., § 163, and cases cited.

where a man's own books of accounts, by a distortion of the civil law (which seems to have meant the same thing as is practised with us), (u) with the suppletory oath of the merchant, amount at all times to full proof. (16) [369]

But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long distance of time, the statute 7 Jac. I, c. 12 (the penners of which seem to have imagined that the books of themselves were evidence at common law), confines this species of proof to such transactions as have happened within one year before the action brought; unless between merchant and merchant in the usual intercourse of trade. For accounts of so recent a date, if erroneous, may more easily be unravelled and adjusted.

With regard to parol evidence, or witnesses; it must be first remembered that there is a process to bring them in by writ of subpoena ad testificandum: which commands them, laying aside all pretences and excuses, to appear at the trial on pain of 100l. to be forfeited to the king; to which the statute 5 Eliz. c. 9, has added a penalty of 10l. 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. This compulsory process, to bring in unwilling witnesses, and the additional terrors of an attachment in case of disobedience, are of excellent use in the thorough investigation of truth: and, upon the same principle, in the Athenian courts, the witnesses who were summoned to attend the trial had the choice of three things; either to swear to the truth of the fact in question, to deny or abjure it, or else pay a fine of a thousand drachmas. (v)

All witnesses, of whatever religion or country, that have the use of their reason, (17) 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 credibli

(u) Instrumenta domestica, seu privata testatio, seu adnotatio, si non aliis quoque adminiculis adjuventur ad probationem sola non sufficiunt. Cod. 4, 19, 5. Nam exemplo perniciosum est, ut ei scripturæ credatur, qua unusquisque sibi adnotatione propria debitorem constituít. Ibid. c. 7. (v) Pott. Antiq. b. i, c. 21.

(16) A party's own books of account may be given in evidence in his own favor to prove the accounts upon them, after preliminary proof that they were regularly kept as such, and are books of original entries; that the party kept no clerk, or, if he kept any, giving sufficient reason for not producing him; that some of the articles charged were actually delivered; and by proving also, from other persons who have dealt with him, that he keeps fair and honest accounts. But they are not very satisfactory evidence, and wherever from the nature of the case there must be witnesses who can give direct testimony concerning the account, the party will be required to produce them before giving his books in evidence. See Vosburgh v. Thayer, 12 Johns., 461; Cogswell v. Dolliver, 2 Mass., 217; Thomas v. Dyott, 1 Nott and McC., 186; Sickles v. Mather, 20 Wend., 72; Burnham v. Adams, 5 Vt., 313; Jackson v. Evans, 8 Mich., 476; 1 Greenl. Ev., § 118, and notes. If anything suspicious appears in the books when presented to the court, they will be excluded. Churchman v. Smith, 6 Whart., 146. There are statutes on this subject in many of the states. The party's own oath is usually required to substantiate the charges. The books can only be made evidence of those things which are properly the subject of book account; not of charges for money loaned, &c. See Bradley v. Goodyear, 1 Day, 105. And upon the whole subject see 1 Phil. Ev. by Cowen, Hill and Edwards, 370-386.

If a party, whose book entries would be admissible when alive and sane, dies or becomes insane, the books may be admitted in a suit in his behalf by his personal representative or guardian, if the latter substantiates them by his oath. Reynolds' Steph. Ev, p. 62, and cases. (17) All persons may give evidence who believe in a supreme superintending Providence who rewards and punishes, and who declare that they consider an oath binding on their conscience. See the leading cases of Ormichund v. Barker, Willes, 538; and 1 Smith Lead. Cas., 535. See also Cubbison v. McCreary, 7 W. and S., 262; Jones v. Harris, 1 Strob., 160; Brock v. Milligan, 10 Ohio, 121; Bennett v. State, 1 Swan, 411; Central R. R. Co. v. Rockafellow, 17 Ill., 541. Some of the United States forbid witnesses being questioned concerning their religious belief. See Cooley Const. Lim., 478, note.