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was practiced in the Roman republic, before she lost her liberty. That the select judges should be appointed by the praetor, with the mutual consent of the parties; indeed these select judges appear in many respects to bear a remarkable resemblance to our juries. They were first returned by the praetor, then their names were drawn by lot, till the number was completed. Then the parties were allowed their challenges, next they struck what we call a tales, and lastly the judges, like our jury, were sworn.
Duties of the Jury. The jury are now ready to hear the merits and fix their attention the closer to the facts, which they are empanelled and sworn to try.
Opening by Counsel. The pleadings are opened to them by counsel on that side, which holds the affirmative of the question at issue.
Affirmative Proof. For the issue is said to lie, and the proof is always first required upon that side, which affirms the matter in question ; in which our law accords with the civil law.
Statements of Counsel. The opening counsel briefly informs the jury what has been transacted; 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. 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 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. The party who began is heard by way of reply. EVIDENCE.
Defined. 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 other. No evidence ought to be admitted to any other point.
Example Suit upon a Bond. Therefore 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 not; he cannot give a release of this bond in evidence, for that does not destroy the bond, and therefore does not prove the issue, viz., that the bond had no existence.
upon an action
Kinds. Evidence on the trial by jury is of two kinds: that which is given in proof, or that which the jury may receive by their own private knowledge. The former, or proofs, are either written or parol, that is, by word of mouth.
Written Proofs. Written proofs, or evidence, are: (1) Records, (2) Ancient deeds of thirty years standing, which prove themselves. (3) Modern deeds. (4) Other writings, which must be attested and verified by parol evidence of witnesses.
Best Evidence must be Produced. One general rule runs through all the doctrine of trials, namely, 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. For if it be found that there is any better evidence existing than is produced, the non-production of it is a presumption that it would have detected some falsehood, that at present is concealed. So no evidence of a conversation with another will be admitted, but the man himself must be produced.
Hearsay Evidence. Customs and Traditions. Yet in some cases, as in proof of any general custom or matters of common tradition or repute, the courts admit hearsay evidence, or an account of what persons deceased have declared in their life time. But such evidence will not be received of any particular facts.
Book Accounts. So too, books of account, or shop books, are not allowed of themselves to be given in evidence for the owner. But a clerk who made the entries may have recourse to them to refresh his memory. And if such clerk, who was accustomed to make those entries, be dead, and his hand-writing be proved, the book may be read in evidence. For as tradesmen are often under the necessity of giving credit without any note or writing, this is therefore, when accompanied with other collateral proofs of fairness and regularity, the best evidence that can be produced. The law formerly held, that this species of proof must be confined to such transactions as have happened within one year before the action was 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 adjusted.
subpoena ad testificandum. This commands them, laying aside all pretence and excuse, to appear at the trial on pain of one hundred pounds, to be forfeited to the king, to which the statute added a penalty of twenty pounds to the party aggrieved, and damages equivalent to the loss sustained by want of his evidence.
Tender of his Expenses. But no witness, unless his reasonable expense 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 certain limits, and is summoned to give evidence within the same.
Compulsory Process. This compulsory process to bring in an unwilling witness, and the additional penalty in case of disobedience, are of excellent use in the thorough investigation of truth.
Athenian Witnesses. And upon the same principle in the Athenian courts, the witnesses, who were summoned to attend a 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 to pay a fine of a thousand drachmas.
Competency. All witnesses of whatever town or country, who have the use of their reason, 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 credibility. Infamous persons are such as may be challenged as jurors, propter delictum, and therefore never shall be admitted to give evidence to inform that jury, with whom they are too scandalous to associate. Examined on Voir Dire. An interested witness
be examined upon a voir dire, if suspected of being secretly concerned in the event. Or his interest may be proved in court; which latter is the only method of supporting an objection to the former class, for no man is to be examined to prove his own infamy. Attorneys. Confidential Communications.
And no counsel, attorney, or other person, entrusted with the secrets of the cause by the party himself, shall be compelled, or perhaps allowed, to give evidence of such conversation or matters of privacy, as came to his knowledge by virtue of such trust and confidence. But he may be examined as to mere matters of fact, as the execution of a deed or the like, which may have come to his knowledge, without being interested in the cause.
Number of Witnesses. One witness, if credible, is sufficient evidence to a jury of any single fact, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions, to which only one persun is privy, and therefore does not always demand the testimony of two, which the civil law universally requires.
Civil Law Practice. The modern practice of the civil law in this respect is peculiar, for as it does not allow a less number than two witnesses to the full proof, they call the testimony of one, though never so clear and positive, half proof only, on which no sentence can be founded. To make up therefore the necessary complement of witnesses, when they have only one to a single fact, they admit the party himself to be examined in his own behalf, and administer to him what is called the suppletory oath, and if his evidence happens to be in his own favor, this immediately converts the half proof into a whole one. To avoid the temptation of perjury, it lays down the rule, that no one ought to be a witness in his own case.
Circumstantial Evidence. Next to positive proof, which is always required where it can possibly be had, the doctrine of presumptions must take place. This is termed circumstantial evidence. For when the fact itself cannot be demonstrately shown, that which comes nearest to the proof of the fact, is the proof of such circumstances, as either necessarily or usually attend such facts. And these are called presumptions, which are only to be relied upon till the contrary be actually proved.
Violent Presumption. Violent presumption is many times equal to full proof, for there those circumstances appear, which necessarily attend the fact. As if a tenant cannot prove the payment of former rent, but produces a receipt for rent subsequently due, in full of all demands, this is a violent presumption of his having paid the former rent, and is equivalent to full proof, for though actual payment is not proved, yet the receipt in full of all demands is proved, which could not be without such payment; and it therefore induces so forcible a presumption, that no proof shall be admitted to the contrary.
1 This exemption is now allowed to attorneys only, and not to other parties. Probable Presumption. Probable presumption, arising from such circumstances as usually attend the fact, has also its due weight, as if in a suit for rent due in 1754, the tenant proves the payment of the rent due in 1755; this will prevail to exonerate the tenant, unless it be clearly shown that the rent of 1754 was retained for some special reason, or that there was some fraud or mistake. Light presumptions have no weight at all.
The Whole Truth Called for. The oath administered to the witness is not only, that what he deposes shall be true, but that he shall also depose the whole truth; so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not.
Examination in Open Court. All this evidence is to be given in open court, in the presence of the parties, their attorneys, and all bystanders, also before the judge and jury; each party having the liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country; which must curb any secret bias or partiality, that might arise in his own breast.
Bill of Exceptions. And if either in his directions or decisions, the judge misstates the law by ignorance, inadvertence or design, the counsel on either side may require him publicly to seal a bill of exceptions, stating the point wherein he is supposed to err, and this he is obliged to seal. If he refuses so to do, the party may have a compulsory writ against him, commanding him to seal it, if the fact alleged be truly stated. And if he returns, that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return, This bill of exceptions is in the natnre of an appeal, examinable not in the court, out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below.
Demurrer to Evidence. This shall be determined by the court, out of which the record is sent. This happens, where a record or other matter is produced in evidence, concerning the legal consequence of which there arises a doubt in law. In which case the adverse party may, if he please, demur to the whole evidence, which admits the truth of every fact that has been alleged, but denies the sufficiency of them all in point of law to