maintain or overthrow the issue. This draws the question of law from the cognizance of the jury, to be decided by the court.

Power to Grant New Trials. But neither these demurrers to evidence, nor the bill of exceptions, are at present so much in use as formerly, since the more frequent extension of the discretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nisi prius.

Examination Viva Voce. This open examination of witnesses viva voce in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer or his clerk in the ecclesiastical courts, as borrowed from the practice of the civil law.

Depositions Criticised. In such examination, the witness may frequently depose that in private, which he would be ashamed to testify to in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language, but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken.

Advantages of Oral Examination. Besides, the occasional questions of the judge, the jury and the counsel, propounded suddenly to the witness, will sift out the truth much better than a formal set of interrogatories previously penned and settled. And the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial.

Effect of the Presence of the Judge. Nor is the presence of the judge, during the examination, a matter of small importance; for besides the respect and awe, with which his presence will naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue.

Inspection of the Witnesses. In short, by this method of examination and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behavior and inclination of the witness; in which points all persons must appear alike, when their depositions are reduced to writing, and read to the judge in the absence of those who made them. And yet, as much may be fre

quently collected from the manner in which the evidence is delivered, as from the matter of it. These are a few of the advantages attending this English way of giving testimony, ore tenus.

Roman Practice. This idea was familiar among the ancient Romans, as Quintilian lays down very good instructions for examining witnesses viva voce. This continued until the time of Hadrian. But the civil law, as now modelled, rejects all public examination of witnesses.

Private Knowledge of Jurors. As to such evidence as the jury may have by their private knowledge of facts, it was an ancient doctrine, that this had as much right to sway their judgment, as the written or parol evidence which is delivered in court. And therefore it has been held, that though no proofs be produced on either side, yet the jury may bring in a verdict to the best of their knowledge. With the introduction of new trials, the practice which now universally obtains, was first introduced, that if a juror knows anything of the matter at issue, he may be sworn as a witness, and give his testimony publicly in court.

Judge's Charge, When the evidence is gone through with on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence.

Retirement of the Jury. Food and Drink. After the proofs are summed up, unless the case be very clear, the jury withdraw from the bar to consider their verdict, and in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire or candles, unless by permission of the judges, till they are all unanimously agreed. This method of accelerating unanimity was not wholly unknown in other constitutions of Europe, and in matters of greater concern. Where juries eat or drink at all, or have eatables about them, without consent of the court and before a verdict, it is fineable; and if they do so at his charge for whom they find a verdict, this verdict will be set aside.

Communicating with a Juror. Also if they speak with either of the parties or their agents, after they have gone from

the bar, or if they receive any fresh evidence in private, or if to prevent disputes they cast lots for whom they shall find a verdict; any of those circumstances will entirely vitiate such verdict.

Disagreement of Juries. If the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them around the circuit from town to town in a cart.

Verdict Unanimous. This necessity of a total unanimity seems to be peculiar to our constitution. Among the ancient Goths, only the consent of the major part of the jury was required, even in criminal cases. In the case of an equal division, the defendant was held to be acquitted.

Announcing the Verdict. When they are unanimously agreed, the jury return to the bar, and before they deliver their verdict, the plaintiff is bound to appear in court by himself or by his attorney, in order to answer the amercement, to which, by the old law, he is liable in case he fails in his suit, as a punishment for his false claim. To be amerced (a mercie) is to be at the king's mercy with regard to the fine imposed. The amercement is now disused.

Non-suit of Plaintiff for Non-appearance. The form however still continues, and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be non-suit. Therefore, it is usual for the plaintiff, when he or his lawyer perceives, that he has not given evidence sufficient to maintain his issue, to be voluntarily non-suited or withdraw himself, whereupon the crier is ordered to call the plaintiff, and if neither he nor any one for him appears, he is non-suited, the jurors are discharged, the action is at end, and the defendant shall recover his costs. The reason of this practice is, that a non-suit is better for the plaintiff than a verdict against him. For after a non-suit, which is only a default, he may commence the same suit again for the same cause of action. But after a verdict had and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. But in case the plaintiff appears, the jury, by their foreman, will deliver in their verdict.

Privy Verdict. A privy verdict, is when the judge has left or adjourned the court, and the jury being agreed, in order to be

delivered from their confinement, obtain leave to give their verdict privately to the judge out of court. This privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in court, wherein the jury may, if they believe it, vary from the privy verdict. So that the privy verdict is indeed a mere nullity, and is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore is very seldom indulged.

Public Verdicts. But the only effectual and legal verdict is the public verdict, in which the jury openly declare to have found the issue for the plaintiff or the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury, upon which the action is brought.

Special Verdict. Sometimes, if there arises in a case any difficult matter of law, the jury for the sake of better information and to avoid the danger of having their verdict set aside, will find a special verdict, and therein they state the naked facts, as they find them to be proved, and pray the advice of the court thereon, concluding conditionally, that if, upon the whole matter, the court should be of opinion that the plaintiff had cause of action, they then find for the plaintiff. If otherwise, then for the defendant. This is entered at length on the record, and afterwards argued and determined in the court at Westminster, from whence the issue came to be tried.

Special Verdict by Another Method. Another method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge of the court, on a special case stated by the counsel on both sides with regard to a matter of law; which has this advantage over a special verdict, that it is attended with much less expense, and obtains a much speedier decision. The postea being stayed in the hands of the officer of nisi prius, till the question is determined, the verdict is then entered for the plaintiff or defendant, as the case may happen.

No Record of Special Verdict. But as nothing appears upon the record but the general verdict, the parties are precluded thereby from the benefit of a writ of error, if dissatisfied with the judgment of the court or judge upon the point of law. Which makes it a thing to be wished, that a method could be devised, of either lessening the expense of special verdicts, or else of entering the cause at length upon the postea. But in both these instances,

the jury may, if they think proper, take upon themselves to determine, at their own hazard, the complicated questions of fact and law, and without either special verdict or special case, may find a verdict absolutely, either for the plaintiff or defendant.

Jury Discharged. When the jury have delivered their verdict, and it is recorded in court, they are then discharged.

Advantages of Jury Trials. Such a trial is as expeditious and cheap, as it is convenient, equitable and certain. A commission out of chancery, or the civil law courts, for examining witnesses in one cause will frequently last as long, and even be fully as expensive, as the trial of a hundred issues at nisi prius. And yet the fact cannot be determined by such commissioners at all; not till the depositions are published and read at the hearing of the cause in court.

Jury Trial, a Bulwark of Liberty. Upon these accounts, the trial by jury is looked upon as the glory of the English law, and it is not only an advantage in regulating the civil property, but is enhanced when applied to criminal cases. It is the most transcendent privilege, which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals. It has secured the just liberties of this nation for a long succession of ages. Montesquieu concludes, that because Rome, Sparta and Carthage have lost their liberties, therefore those of England in time must perish. But it must be recollected, that those states, at the time when their liberties were lost, were strangers to the trial by jury.

Eulogy of the Jury System. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, usually chosen by the prince, or by parties holding the highest offices in the state, their decisions will frequently have an involuntary bias towards those of their own rank and dignity; for it is not to be expected, that the few should be always attentive to the interests and good of the many. On the other hand, if the power of judicature was placed in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our courts. It is therefore wisely ordered, that the principles and axioms of law, which are general