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action arises, and the witnesses and jurors live, which is a saving of expense.
(4.) The Judges Themselves. The persons before whom they are to 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 assize, delegated from the courts at Westminster by the king, if the trial be held in the country. The very point of their being strangers in the county is of infinite service, in preventing factions and parties. Formerly to remove all suspicion of partiality, a statute provided, that no judge of assize should hold pleas in any county, wherein he was born or lives.
Consultation and Commingling of Judges. These justices, though shifted at every assize, are all sworn to the same laws, have had the same education and studies, converse and consult together, communicate their decisions, and preside in courts, which are mutually connected and judgments blended, as they are interchangeably courts of appeal or advice to each other.
Uniformity of Rules and Administration. Hence their administration of justice and conduct of trials are consonant and uniform, whereby confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges.
Non-suit or Continuance. Notice of Trial. When the general day of trial is fixed, the plaintiff or his attorney brings down the record to the assizes and enters it, so that it may be called in course. If not so entered, it cannot be tried, and plaintiff
may thus delay trial, unless the defendant apprehending such neglect, himself undertakes to bring on the trial. But this practice has fallen into disuse, since the passage of a statute, which enacts, that if after issue joined, the cause is not carried down to be tried, the plaintiff shall be deemed nonsuited, and judgment be given for the defendant. If the plaintiff wishes to try the suit, he must give the defendant due notice of trial, proportioned to his distance from the court. If the notice be not countermanded by the plaintiff, and he changes his mind as to trial, he shall be liable to the defendant for costs. Either party however, for good cause, as upon absence, or sickness of a material witness, may upon motion, obtain a continuance.
Proceedings in Court. When the cause is called in court, the record is handed to the judge to examine the pleadings and the issues to be maintained, while the jury is sworn. To this end the sheriff returns his writ of habeas corpora or distringas, with the panel of jurors annexed, to the judge's officer in court. The jurors are either special or common.
Special Juries. Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders, or where the sheriff was suspected of partiality. In such cases, the prothonotary took the freeholder's book, and at random struck off forty-eight freeholders in the presence of both attorneys, who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel. By statute, either party is entitled, on motion, to have a special jury struck upon the trial of any issue, as well at the assizes as at bar, by paying the additional expense, unless the judges will certify that the cause required such special jury.
Common Juries. The Panel. A common jury is one returned by the sheriff. He shall not return a separate panel for every cause, as formerly, but one and the same panel for every cause to be tried at the same assizes, containing not less than forty-eight, nor more than seventy-two jurors, and their names being written on tickets, shall be placed in a box, and when each cause is called, twelve of these, whose names shall be first drawn from the box, shall be sworn upon the jury, unless absent, challenged or excused; or unless a previous view of the premises shall have been thought necessary by the court.
Jury of View. In such case, six or more of the jurors returned, to be agreed on by the parties, or named by a judge or proper court officer, shall be appointed by special writ of habeas corpora or distringas, to have the matters in question shown to them by two persons named in the writ, and then such of the jury as have had the view, or so many of them as appear, shall be sworn on the inquest previous to any other jurors. These acts are calculated to restrain the partiality of the sheriff, or any tampering with the jurors, when returned.
Challenges. As the jurors appear, they are sworn, unless challenged by either party. Challenges are of two sorts : to the array, and to the polls.
Challenge to the Array. This is an exception to the whole panel, in which the jury is arrayed or set in order by the sheriff, in his return. It may be made on account of some partiality or some default in the sheriff or his deputy, who arrayed the panel. And usually, the same reasons, that before the awarding of the venire sufficed to direct it to the coroners or elisors, will be sufficient to quash the array, when made by a person, of whose partiality there is any reasonable suspicion. So where the sheriff arrays the panel, at the nomination or under the direction of either party, this is cause for challenging the array.
Jury of the Vicinage. Also a challenge is tenable, where none of the jury were returned from the vicinity of the place where the cause of action was laid in the declaration, as, by the policy of the ancient law, some of the jury must be from the neighborhood. For living near, both parties naturally appealed to them, as to the country. They were supposed to know beforehand the characters of parties and witnesses, and therefore they knew better, what credit to give to the facts alleged in evidence. On the other hand, juries coming out of the immediate neighborhood would be apt to intermix their prejudices and partialities in the trial of right. By a later statute, the jury need now only come from the body of the county at large, and not de vicineto, or from the particular neighborhood.
Aliens. By the ancient law, the array may also be challenged, if an alien be a party to the suit, and a motion be made to the court for a jury de medietate linguae, consisting of one-half denizens and one-half aliens, for a more impartial trial, a privilege indulged to strangers in no other country. But where both parties are aliens, no partiality is presumed, and the jury shall all be denizens. At this date, a court might hesitate, whether it has now power, to direct a panel to be thus returned.
Judges cannot be Challenged. Under the civil and canon laws, a judge may be refused upon any suspicion of partiality. By the former laws of England, he might be refused for good cause, but now the law is otherwise, and judges cannot be challenged. For the law will not suppose a possibility of bias or favor in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.
Challenges to the Polls. These are exceptions to particular jurors. Coke reduces them to four heads : propter honoris respectum, defectum, affectum and delictum.
1 By statute, such a jury is only now allowed upon trials of felonies and misdemeanors.
(1.) Propter Honoris Respectum. As where a privileged person, as a lord of parliament, is empanelled.
(2.) Propter Defectum. As if a juryman be an alien born. This is a defect of birth; if he be a slave, this is defect of liberty. But the principal deficiency is defect of estate sufficient to qualify him to be a juror. This depends upon a variety of statutes.
Aliens as Jurors. When the jury is partly of natives and partly of foreigners de medietate linguae, no want of land shall be cause of challenge to the alien, for as he is incapable of holding any, this would totally defeat the privilege.
(3.) Propter Affectum. Jurors may be challenged for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. The principal challenge is, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor.
Partiality of Jurors. As that the juror is of kin to either party within the ninth degree; 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.
Challenge to the Favor. Challenges to the favor are where the party has no principal challenge, but objects only from some probable circumstance of suspicion, as acquaintance and the like; the validity of which must be left to the determination of triors, whose office is to decide whether the juror be favor able or unfavorable. The triors are two indifferent persons named by the court, and if they find him indifferent, he shall be sworn.
(4.) Propter Delictum. These challenges are for some crime or misdemeanor, that affect the juror's credit and render him infamous. As for conviction of treason, felony, perjury or conspiracy, or if he has received judgment of the pillory, or to be branded, or be outlawed or attainted. Or if he has proved recreant, when champion in the trial by battle.
Examined on Voir Dire. The juror may himself be examined on oath of 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 anything which tends to his disgrace or disadvantage.
Jurors Excused. 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 matters of exemption, whereby their service is excused and not excluded. This applies to sick persons, non-residents, men over seventy years old, and infants under twenty-one. Also to physicians, counsellors, attorneys, officers of the court and the like. Clergymen are usually excused out of favor and respect to their function. But if they own lands, they are liable to be empanelled, in respect of their lay fees, unless they be in the service of the king, or of some bishop.
The Panel, Tales. A tales is a supply of such men as are summoned upon the first panel, in order to make up the deficiency. By statute, at the prayer of either party, the judge is empowered to award tales 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 complete.'
The Oath. When a sufficient number of persons empanelled or talesmen 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, juratores.
Advantages of the Jury System. We observe how impartially just is the law in England, in framing a tribunal thus excellently contrived for the test and investigation of truth. This plan results in the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. It is excellent in its caution against all partiality and bias, by quashing a whole panel or array, if the officer returning is suspected to be other than indifferent. Also in its repelling particular jurors, if probable cause be shown of malice or favor to either party.
Roman Juries. Challenges. A great multitude of exceptions or challenges allowed to jurors, who are the judges of fact,
1 Usually, no writ is necessary in the United States, the court having the power to direct the sheriff to summon from the bystanders the requisite number.