in law, the examination of a cause according to the laws of the land before a proper judge; or it is the manner and order observed in the hearing and determining of causes.

Trials are either civil or criminal.

I. Civil Trials. The species of trials in civil cases are as follows: by record; by inspection, or examination; by certificate; by witness; by wager of battle; by wager of law; and by jury. The first five are only had in certain special or ecclesiastical cases, where the trial by jury would not be so proper or effectual. See them explained under their respective titles. The nature of the last, that principal criterion of truth in the law of England, shall be explained in this article.

As trial by jury is esteemed one of the most important privileges which members of society can enjoy, and the bulwark of the British constitution, every man of reflection must be stimulated by the desire of inquiring into its origin and history, as well as to be acquainted with the forms and advantages by which it is accompanied. We will therefore begin with tracing it to its origin. Its institution has been ascribed to our Saxon ancestors by Sir William Blackstone.

"Some authors (says that illustrious lawyer) have endeavoured to trace the origins of juries up as high as the Britons themselves, the first inhabitants of our island; but certainly it is, that they were in use among the earliest Saxon colonies, their institution being ascribed by bishop Nicholson to Woden himself, their great legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feudal system, as in Germany, France, and Italy; who had all of them a tribunal composed of twelve good men and true, boni homines, usually the vassals or tenants of the lord, being the equals or peers of the parties litigant; and, as the lord's vassals judged each other in the lord's courts, so the king's vassals, or the lords themselves, judged each other in the king's court. In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention. Sternehook ascribes the invention of the jury, which in the Teutonic language is denominated nemelda, to Regnier king of Sweden and Denmark, who was contemporary with our king Egbert. Just as we are apt to impute the invention of this, and some other pieces of juridical polity, to the superior genius of Alfred the Great; to whom, on account of his having done much, it is usual to attribute everything; and as the tradition of ancient Greece placed to the account of their own Hercules whatever achievement was performed superior to the ordinary prowess of mankind. Whereas the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other."

This opinion has been controverted with much learning and ingenuity by Dr Pettingal in his Enquiry into the Use and Practice of Juries among the Greeks and Romans, who deduces the origin of juries from these ancient nations.

He begins with determining the meaning of the word δικαστής in the Greek, and judices in the Roman writers. "The common acceptation of these words (says he), and the idea generally annexed to them, is that of presidents of courts, or, as we call them, judges; as such they are understood by commentators, and rendered by critics. Dr Middleton, in his life of Cicero, expressly calls the judices, judges of the bench; and Archbishop Potter, and in short all modern writers upon the Greek or Roman orators, or authors in general, express δικαστής and judices by such terms as convey the idea of presidents in courts of justice. The propriety of this is doubted of, and hath given occasion for this inquiry; in which it is shown, from the best Greek and Roman authorities, that neither the δικαστής of the Greeks, or the judices of the Romans, ever signified presidents in courts of judicature, or judges of the bench; but, on the contrary, they were distinguished from each other, and the difference of their duty and function was carefully and clearly pointed out by the orators in their pleadings, who were the best authorities in those cases, where the question related to forms of law, and methods of proceeding in judicial affairs and criminal processes.

The presidents of the courts in criminal trials at Athens were the nine archons, or chief magistrates, of which whoever presided was called ἡγέτης δικαστῶν, or president of the court. These nine presided in different causes peculiar to each jurisdiction. The archon, properly so called, had belonging to his department all pupillary and heritable cases; the βασιλεύς or rex sacrorum, the chief priest, all cases where religion was concerned; the polemarchus, or general, the affairs of the army and all military matters; and the like, the theotarche, the other ordinary suits.

Wherever then the ἡγέτης δικαστῶν, or judicial men, are addressed by the Greek orators in their speeches, they are not to be understood to be the presiding magistrates, but another class of men, who were to inquire into the state of the cause before them, by witnesses and other methods of coming at truth; and after inquiry made and witnesses heard, to report their opinion and verdict to the president, who was to declare it.

The several steps and circumstances attending this judicial proceeding are so similar to the forms observed by our jury, that the learned reader, for such I must suppose him, cannot doubt but that the nature, intent, and proceedings of the ἡγέτης δικαστῶν among the Greeks were the same with the English jury; namely, for the protection of the lower people from the power and oppression of the great, by administering equal law and justice to all ranks; and therefore when the Greek orators directed their speeches to the ἡγέτης δικαστῶν, as we see in Demosthenes, Aeschines, and Lytias, we are to understand it in the same sense as when our lawyers at the bar say, Gentlemen of the Jury.

So likewise among the Romans, the judices, in their pleadings at the bar, never signified judges of the bench, or presidents of the court, but a body or order of men, whose office in the courts of judicature was distinct from that of the praetor or judex quattuor, which answered to our judge of the bench, and was the same with the archon, or ἡγέτης δικαστῶν, of the Greeks; whereas the duty of the judices consisted in being impannelled, as we call it, challenged, and swore to try uprightly the case before them; and when they had agreed upon their opinion or verdict, to deliver it to the president who was to pronounce it. This kind of judicial process was first introduced into the Athenian polity by Solon, and thence copied into the Roman republic, as probable means of procuring just judgment, and protecting the lower people from the oppression or arbitrary decisions of their superiors.

When the Romans were settled in Britain as a province, they carried with them their jus et iustitia, their laws and customs, which was a practice essential to all colonies; hence the Britons, and other countries of Germany and Gaul, learned from them the Roman laws and customs; and upon the irruption of the northern nations into the southern kingdoms of Europe, the laws and institutions of the Romans remained, when the power that introduced them was with- withdrawn; and Montesquieu tells us, that under the first race of kings in France, about the fifth century, the Romans that remained, and the Burgundians their new masters, lived together under the same Roman laws and police, and particularly the same forms of judicature. How reasonable then is it to conclude, that in the Roman courts of judicature continued among the Burgundians, the form of a jury remained in the same state it was used at Rome. It is certain, Montesquieu, speaking of these times, mentions the pairs or hommes de fief, homagers or peers, which in the same chapter he calls juges, judges or jurymen: so that we hence see how at that time the hommes de fief, or "men of the fief," were called peers, and those peers were juges or jurymen. These were the same as are called in the laws of the confessor pers de la tenure, the "peers of the tenure, or homagers," out of whom the jury of peers were chosen, to try a matter in dispute between the lord and his tenant, or any other point of controversy in the manor. So likewise in all other parts of Europe, where the Roman colonies had been, the Goths succeeding them, continued to make use of the same laws and institutions, which they found to be established there by the first conquerors. This is a much more natural way of accounting for the origin of a jury in Europe, than having recourse to the fabulous story of Woden and his savage Saxon companions, as the first introducers of so humane and beneficial an institution.

Trials by jury in civil causes are of two kinds; extraordinary and ordinary.

1. The first species of extraordinary trial by jury is that of the grand assize, which was instituted by king Henry II. in parliament, by way of alternative offered to the choice of the tenant or defendant in a writ of right, instead of the barbarous and unchristian custom of duelling. For this purpose a writ de magna affisa eligenda is directed to the sheriff, to return four knights, who are to elect and choose 12 others to be joined with them; and these all together form the grand assize, or great jury, which is to try the matter of right, and must now consist of 16 jurors. Another species of extraordinary juries is the jury to try an attaint; which is a process commenced against a former jury for bringing a false verdict. See the article Attaint.

2. With regard to the ordinary trial by jury in civil cases, the most clear and perspicuous way of treating it will be by following the order and course of the proceedings themselves.

When therefore an issue is joined by these words, "And this the said A prays may be inquired of by the country;" or, "And of this he puts himself upon the country, and the said B does the like;" the court awards a writ of venire facias upon the roll or record, commanding the sheriff "that he cause to come here, on such a day, twelve free and lawful men, liberes et legales homines, of the body of his county, by whom the truth of the matter may be better known, and who are neither of kin to the aforesaid A nor the aforesaid B, to recognize the truth of the issue between the said parties." And such writ is accordingly issued to the sheriff. It is made returnable on the last return of the same term wherein issue is joined, viz. hilary or trinity terms; which, from the making up of the issues therein, are usually called issuable terms. And he returns the names of the jurors in a panel (a little pane or oblong piece of parchment) annexed to the writ. This jury is not summoned, and therefore not appearing at the day must unavoidably make default. For which reason a compulsory process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratrum, and in the King's Bench distringas, commanding the sheriff to have their bodies, or to distrain them by their lands and goods, that they may appear upon the day appointed. The entry therefore on the roll of record is, "That the jury is respited, through defect of the jurors, till the first day of the next term, then to appear at Westminster; unless before that time, viz. on Wednesday the fourth of March, the justices of our lord the king appointed to take assizes in that county shall have come to Oxford, that is, to the place assigned for holding the assizes. Therefore the sheriff is commanded to have their bodies at Westminster on the said first day of next term, or before the said justices of assize, if before that time they come to Oxford, viz. on the fourth of March aforesaid." And as the judges are sure to come and open the circuit-commissions on the day mentioned in the writ, the sheriff returns and summons this jury to appear at the assizes; and there the trial is had before the justices of assize and nisi prius: among whom (as hath been said) are usually two of the judges of the courts at Westminster, the whole kingdom being divided into five circuits for this purpose.

And thus we may observe, that the trial of common issues, at nisi prius, was in its original only a collateral incident to the original business of the justices of assize; though now, by the various revolutions of practice, it is become their principal civil employment; hardly anything remaining in use of the real assizes but the name.

If the sheriff be not an indifferent person, as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury; but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff to execute process when he is deemed an improper person. If any exception lies to the coroners, the venire shall be directed to two clerks of the court, or two persons of the county named by the court, and sworn. And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array.

Let us now pause a while, and observe (with Sir Matthew Hale *) in these first preparatory stages of the trial, how admirably this constitution is adapted and framed for the investigation of truth beyond any other method of trial in the world. For, first, the person returning the jurors is a man of some fortune and consequence; that so he may be not only the less tempted to commit wilful errors, but likewise be responsible for the faults of either himself or his officers; and he is also bound by the obligation of an oath faithfully to execute his duty. Next, as to the time of their return: the panel is returned to the court upon the original venire, and the jurors are to be summoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their sufficiency or insufficiency, characters, connections, and relations, so they may be challenged upon just cause; while, at the same time, by means of the compulsory process (of distringas, or habeas corpora) the cause is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance: which in causes of weight and consequence is at the bar of the court; but in ordinary cases at the assizes, held in the county where the cause of action arises, and the witnesses and jurors live: a provision most excellently calculated for the saving of expense to the parties. For though the preparation of the causes in point of pleading is transacted at Westminster, whereby the order and uniformity of proceeding is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one attorney being able to transact the business of 40 clients. But the troublesome and most expensive attendance is that of jurors and witnesses at the trial; which therefore is brought home to them, in the county... county where most of them inhabit. Fourthly, 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 assizes, delegated from the courts at Westminster by the king, if the trial be held in the country: persons, whose learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no small influence upon the multitude. The very point of their being strangers in the county is of infinite service, in preventing those factions and parties which would intrude in every cause of moment, were it tried only before persons resident on the spot, as justices of the peace, and the like. And the better to remove all suspicion of partiality, it was wisely provided by the statutes 4 Edw. III. c. 2.; & Ric. II. c. 2. and 33 Hen. VIII. c. 24., that no judge of assizes should hold pleas in any county wherein he was born or inhabits. And as this constitution prevents party and faction from intermingling in the trial of right, so it keeps both the rule and the administration of the laws uniform. These justices, though thus varied and shifted at every assizes, are all sworn to the same laws, have had the same education, have pursued the same studies, converse and consult together, communicate their decisions and resolutions, and preside in those courts which are mutually connected, and their judgments blended together, as they are interchangeably courts of appeal or advice to each other. And hence their administration of justice, and conduct of trials, are consonant and uniform; whereby that confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment. But let us now return to the assizes.

When the general day of trial is fixed, the plaintiff or his attorney must bring down the record to the assizes, and enter it with the proper officer, in order to its being called on in course.

These steps being taken, and the cause called on in court, the record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsory process, the writ of habeas corpus, or distringas, with the panel of jurors annexed, to the judge's officer in court.

The jurors contained in the panel are either special or common jurors. 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, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court, and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholder's book; and the officer is to take indifferently 48 of the principal freeholders, in the presence of the attorneys on both sides: who are each of them to strike off 12, and the remaining 24 are returned upon the panel. By the statute 3 Geo. II. c. 25., either party is entitled upon motion to have a special jury struck upon the trial of any issue, as well at the assizes as at bar, he paying the extraordinary expense, unless the judge will certify (in pursuance of the statute 24 Geo. II. c. 18.) that the cause required such special jury.

A common jury is one returned by the sheriff according to the directions of the statute 3 Geo. II. c. 25., which appoints, that the sheriff or officer shall not return a separate panel for every separate cause, as formerly; but one and the same panel for every cause to be tried at the same assizes, containing not less than 48, nor more than 72, jurors: and that their names being written on tickets, shall be put into a box of glass; and when each cause is called, 12 of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused; or unless a previous view of the meadows, lands, or place in question, shall have been thought necessary by the court; in which case, six or more of the jurors returned, to be agreed on by the parties, or named by a judge or other proper officer of the court, shall be appointed by special writ of habeas corpus 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 well calculated to restrain any suspicion of partiality in the sheriff, or any tampering with the jurors when returned.

As the jurors appear when called, they shall be sworn, unless challenged by either party. See the article Challenge.

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 tale.

A tale 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, oblo tales, and the like, was wont to be issued to the sheriff at common law, and must be still 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 statutes, the judge is empowered at the prayer of either party to award a tales de circumstantibus 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 12 be completed; in which patriarchal and apostolical number Sir Edward Coke hath discovered abundance of mystery.

When a sufficient number of persons impaneled, 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," i.e. juratores.

The jury are now ready to hear the merits; and to fix their attention the closer to the facts which they are impaneled 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, 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 finally, upon what point the issue is joined, which is there sent down to be determined. Instead of which, formerly the whole record and process of the pleadings were read to them in English by the court, and the matter of 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; and then the party which began is heard by way of reply. See Pleadings.

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. mouth. Written proofs, or evidence, are, 1. Records; and 2. Ancient deeds of 30 years standing, which prove themselves; but, 3. Modern deeds; and, 4. Other writings, must be attested and verified by parol evidence of witnesses. With regard to parol evidence or witneffes; it must first be remembered, that there is a process to bring them in by writ of subpœna ad testificandum; which commands them, lay- ing aside all pretences and excuses, to appear at the trial on pain of 100l. to be forfeited to the king; to which the sta- tute 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 reason- able 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 limits of mortality, and is summoned to give evidence within the same. This compulsory process, to bring an unwilling witneffes, and the additional terrors of an attachment in case of disobedience, are of excellent use in the thorough investi- gation of truth: and, upon the same principle, in the Athe- nian courts, the witneffes who were summoned to attend the trial had their 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 1000 drachmas.

All witneffes, of whatever religion or countrey, that have the use of their reason, are to be received and examined, ex- cept 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 were too scandalous to associate. Interested witneffes may be examined upon a voir dire, if suspected to be secretly concerned in the event; or their interest may be proved in court. Which last is the only method of supporting an objection to the former clause; for no man is to be examined to prove his own infamy. And no counsel, attorney, or other person, intrusted 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 confi- dence: but he may be examined as to mere matters of fact, as the execution of a deed or the like, which might have come to his knowledge without being intrusted in the cause.

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 person is privy; and therefore does not always demand the testi- mony of two. Positive proof is always required, where, from the nature of the case, it appears it might possibly have been had. But, next to positive proof, circumstantial evi- dence, or the doctrine of presumptions, must take place: for when the fact itself cannot be demonstratively evinced, that which comes nearest to the proof of the fact is the proof of such circumstances which 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.

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. And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all bystanders; and before the judge and jury: each party having 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.

When the evidence is gone through 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 superflu- ous 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 aris- ing upon that evidence.

The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict; and in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For by the golden bull of the em- pire, if, after the congress is opened, the electors delay the election of a king of the Romans for 30 days, they shall be fed only with bread and water till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before ver- dict, it is finedable; and if they do so at his charge for whom they afterwards find, it will let aside the verdict. Also, if they speak with either of the parties or their agents after they are gone from the bar, or if they receive any fresh evi- dence in private, or if, to prevent disputes, they cast lots for whom they shall find, any of these circumstances will en- tirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threat- ened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart. This necessity of a total unanimity seems to be peculiar to our own constitution; or at least, in the numida or jury of the ancient Goths, there was required (even in criminal cases) only the consent of the major part; and in case of an equality, the defendant was held to be ac- quitted.

When they are all unanimously agreed, the jury return back to the bar; and before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the appearance to which by the old law he is liable, in case he fails in his suit, as a pu- nishment for his false claim. To be answered, or a merce, is to be at the King's mercy with regard to the fine to be imposed; in misericordia domini regis pro falso clamore suo. The appearance is dilated, but the form still continues; and if the plaintiff does not appear, no verdict can be given; but the plaintiff is said to be nonfit, non sequitur clamorem suum. Therefore it is usual for a plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonfitted, or withdraw himself: whereupon the crier is ordered to call the plaintiff; and if neither he, nor any body for him, appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason of this practice is, that a nonfit is more eligible for the plaintiff than a verdict against him: for after a nonfit, 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 com- plaint. But in case the plaintiff appears, the jury by their foreman deliver in their verdict. A verdict, *vera dictum*, is either privy or public. A privy verdict is when the judge hath 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; which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from their privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged. But the only effectual and legal verdict is the public verdict: in which they openly declare to have found the issue for the plaintiff, or for 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.

When the jury have delivered in their verdict, and it is recorded in court, they are then discharged; and so ends the trial by jury: a trial which ever has been, and it is hoped ever will be, looked upon as the glory of the English law. It is certainly 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 12 of his neighbours and equals. A constitution that we may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages. And therefore a celebrated French writer, who concludes, that because Rome, Sparta, and Carthage, have lost their liberties, therefore those of England in time must perish, should have recollected, that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury.

Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve.

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, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many. On the other hand, if the power of judicature were placed at random 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 wisely therefore ordered, that the principles and axioms of law, which are general propositions flowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope; the law is well known, and is the same for all ranks and degrees: it follows as a regular conclusion from the premises of fact pre-established. But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in, either by boldly asserting that to be proved which is not so, or more artfully by suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautions of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by 12 indifferent men not appointed till the hour of trial; and that when once the fact is ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.

**Criminal Trials.** The regular and ordinary method of proceeding in the courts of criminal jurisdiction may be distributed under 12 general heads, following each other in a progressive order: viz. 1. Arrest; 2. Commitment and bail; 3. Prosecution; 4. Process; 5. Arraignment, and its incidents; 6. Plea, and issue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and its consequences; 10. Reversal of judgment; 11. Reprieve, or pardon; 12. Execution. See Arrest, Commitment, Presentment, Indictment, Information, Appeal, Process upon an Indictment, Arraignment, and Plea; in which articles all the forms which precede the trial are described, and are here enumerated in the proper order.

The several methods of trial and conviction of offenders, established by the laws of England, were formerly more numerous than at present, through the superstition of our Saxon ancestors; who, like other northern nations, were extremely addicted to divination; a character which Tacitus observes of the ancient Germans. They therefore invented a considerable number of methods of purgation or trial, to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would always interpose miraculously to vindicate the guiltless; as, 1. By Ordeal; 2. By Corsehead; 3. By Battel. See these articles.

4. A fourth method is that by the peers of Great Britain, in the Court of Parliament; or the Court of the Lord High Steward, when a peer is capitally indicted; for in case of an appeal, a peer shall be tried by jury. This differs little from the trial per patriam, or by jury; except that the peers need not all agree in their verdict; and except also, that no special verdict can be given in the trial of a peer; because the lords of parliament, or the lord high steward (if the trial be had in his court), are judges sufficiently competent of the law that may arise from the fact; but the greater number, consisting of 12 at the least, will conclude, and bind the minority.

The trial by jury, or the country, per patriam, is also that trial by the peers of every Briton, which, as the great bulwark of his liberties, is secured to him by the great charter: *nullus liber homo capitatur, vel imprisionetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terrae*.

When therefore a prisoner on his Arraignment has pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, *liberos et legales homines, de vicineto*; that is, freeholders without just exception, and of the wapne or neighbourhood; which is interpreted to be of the county where the fact is committed. If the proceedings are before the court of king's bench, there is time allowed between the arraignment and the trial, for a jury to be impanelled by writ of *venire facias* to the sheriff, as in civil causes; and the trial in case of a misdemeanor is had at *nisi prius*, unless it be of such consequence as to merit a trial at bar; which is always invariably had when the prisoner is tried for any capital offence. But, before commissioners of oyer and terminer and gaol delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of 48 jurors, to try all felons that may be called upon their trial at that session; and therefore it is there usual to try all felons immediately or soon after their Trials.

Arraignment. But it is not customary, nor agreeable to the general course of proceedings, unless by consent of parties, to try persons indicted of smaller misdemeanors at the same court in which they have pleaded not guilty, or traversed the indictment. But they usually give security to the court to appear at the next assizes or session, and then there to try the traverse, giving notice to the prosecutor of the same.

In cases of high-treason, whereby corruption of blood may ensue (except treason in counterfeiting the king's coin or seals), or misprision of such treason, it is enacted by statute 7 W. III. c. 3. first, that no person shall be tried for any such treason, except an attempt to assassinate the king, unless the indictment be found within three years after the offence committed; next, that the prisoner shall have a copy of the indictment (which includes the caption), but not the names of the witnesses, five days at least before the trial, that is, upon the true construction of the act, before his arraignment; for then is his time to take any exceptions thereto, by way of plea or demurrer: thirdly, that he shall also have a copy of the panel of jurors two days before his trial; and lastly, that he shall have the same compulsory process to bring in his witnesses for him, as was usual to compel their appearance against him. And by statute 7 Ann. c. 21. (which did not take place till after the decease of the late pretender) all persons indicted for high-treason, or misprisions thereof, shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impaneled, with their professions and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses, the better to prepare him to make his challenges and defence. And no person indicted for felony is, or (as the law stands) ever can be, entitled to such copies before the time of his trial.

When the trial is called on, the jurors are to be sworn as they appear, to the number of 12, unless they are challenged by the party.

Challenges may here be made, either on the part of the king, or on that of the prisoner; and either to the whole array, or to the separate polls, for the very same reasons that they may be made in civil causes. But in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge, to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to let aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never be tried. This reasonable boundary is settled by the common law to be the number of 35; that is, one under the number of three full juries.

If by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales may be awarded as in civil causes, till the number of 12 is sworn, "well and truly to try, and true deliverance make, between our sovereign lord the king and the prisoner whom they have in charge; and a true verdict to give, according to their evidence."

When the jury is sworn, if it be a cause of any consequence, the Indictment is usually opened, and the evidence marshalled, examined, and enforced by the counsel for the crown or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. A rule which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that affluence be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass? Nor indeed is it, strictly speaking, a part of our ancient law; for the Mirror, having observed the necessity of counsel in civil suits, "who know how to forward and defend the cause by the rules of law, and customs of the realm," immediately afterwards subjoins, "and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes." And, to say the truth, the judges themselves are so sensible of this defect in our modern practice, that they seldom scruple to allow a prisoner counsel to stand by him at the bar, and to instruct him what questions to ask, or even to ask questions for him, with regard to matters of fact; for as to matters of law arising on the trial, they are entitled to the assistance of counsel. But still this is a matter of too much importance to be left to the good pleasure of any judge, and is worthy the interposition of the legislature; which has shown its inclination to indulge prisoners with this reasonable affluence, by enacting, in statute 7 W. III. c. 3., that persons indicted for such high-treason as works a corruption of the blood or misprision thereof (except treason in counterfeiting the king's coins or seals), may make their full defence by counsel, not exceeding two, to be named by the prisoner, and assigned by the court or judge; and this indulgence, by statute 20 Geo. II. c. 30. is extended to parliamentary impeachments for high-treason, which were excepted in the former act.

When the evidence on both sides is closed, the jury cannot be discharged (unless in cases of evident necessity) till they have given in their VERDICT. If they find the prisoner not guilty, he is then for ever quit and discharged of the accusation, except he be appealed of felony within the time limited by law. And upon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the gaoler. But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted. See the article Conviction; and, subsequent thereto, the articles Judgment, Attainder, Forfeiture, Execution, also Benefit of Clergy, Reprieve, Pardon.

Scotland. See Scots Law.