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it be tried by the court; which they are impowered by law to do : and then the court fhall proceed to try the cafe in the fame manner, and upon the fame principles, as a jury, and render judgment accordingly: This innovation was introduced in the revifion of our Statute law in the year, 1784, and is a very valuable, and important improvement. It is a confiderable faving of expence.

There are many cafes dependent on principles of law, which can be determined with much more propriety by the court, than by a jury; and by putting the iffue to the court, the points of law may be fairly fettled, without obliging the parties to go thro the labyrinth of fpecial pleadings, for the purpofe of bringing the queftion of law, to be decided by the court. The parties have their election, and both must agree to try the iffue by the court, fo that no man can be compelled to give up his right to trial by jury: but he may affent to a trial by a different tribunal.

When an iffue upon a matter of fact is to be tried, and both parties do not agree to put it to the judges, it must of course be tried by a jury of twelve men of the county.

It is not my defign to enter into a laborious research concerning the origin and antiquity of trial by jury, nor to launch into the wide ocean of encomium upon this excellent and venerable institution. It will be but a repetition of obfervations, upon a topic, already worn thread-bare by the numerous writers who have handled it, in a manner correfpondent to it's dignity and importance. It is fufficient to remark, that in this country the inftitution is coeval with our government, that it is one of the most valuable privileges that can be enjoyed in civil fociety, and effential to the preservation of civil liberty. With these preliminary obfervations, I proceed to give an account of the mode of impanelling a jury, and of the mode of trial by jury.

a It is enacted by the statute for providing and regulating jurors in civil actions, that the civil authority, felect-men, conftables, and grand jurors in the feveral towns, fhall upon penalty of fifty fhillings, meet fome time in the month of January, and chufe to serve as jurors, fuch number of able and judicious frecholders, as the staStatutes, 108.

tute

tute fpecifies, having a freehold eftate rated in the lift at fifty fhillings or more. That their names fhall be written by the townclerk, and put into and locked in a box, provided for that purpose, and kept in the hands of the town-clerk that fome convenient time before the fitting of the fuperior and county courts, their clerks fall iffe warrants directed to either of the conftables, of fuch number of the feveral towns in the county, as may be neceffary, commanding them to fummon a fufficient number of freeholders to ferve as jurors at fuch court: the jurors for the fuperior court to attend at twelve o'clock of the first day, and for the county court on the third day of the feffion.

The constable receiving fuch warrant, fhall in the prefence of the town-clerk, or in his abfence of one of the felect-men, draw out of the box the number he is directed to fimmon, without first feeing their names, and then fhall fammon the perfons whofe names are drawn; but if any are abfent or fick, or unavoidably hindred from attending court, their names may be returned, and new ones drawn, and the perfons fummoned. The conflables must make timely return of their warrants, upon penalty of thirty fhillings, and jurors muft appear upon penalty of ten fillings.

When it happens that a fufficient number of jurors do not appear, or if by reafon of challenges, or other caufe, there be not a fufficient number to make up a panel, the court fhall order the fame to be filled up of the by-ftanders, de talibus circulantibus, or for want thereof of any good and lawful freeholders of the county, whofe names fhall be returned by the fheriff, and when the fheriff is a party in the cause, or related to either of the parties, by the con stable, or fuch officer, as the court fhall appoint. This mode is excellently well calculated to obtain an impartial, and reputable jury, and precludes the poffibility of the dangerous practice of packing a jury.

When jurors are thus returned, and before they are fworn, the parties have right to make their challenges.

a There are three caufes for which jurors may be challenged. The want of Qualifications, Crimes and Partiality.

3 Black. Com. 361.

I. AR

1. An alien born, an infant, or flave cannot be jurors, nor can a person who has not a freehold eftate; a but this laft can not be taken advantage of after verdict, in a motion in arrest.

2. A juror who has been convicted of the crimes of treafon, felony, perjury, forgery, or confpiracy, or if he has received judg ment of the pillory, or any other infamous corporal punishment, may be challenged.

3. A juror may be challenged for fufpicion of bias, or partiality, which may be either a principal challenge, or a challenge to the favor. A principal challenge is where the caufe affigned carries evident marks of fupicion either of malice, or favor. Thus where the juror is related to either of the parties within the ninth degree, has been an arbitrator on either fide, has an intereft in the cause, where there is an action depending between him and the party, has taken money for the verdict, has formerly been a juror in the fame cafe, is the party's mafter, fervant, fleward, or attorney, or has publified his opinion upon the particular cafe, thefe are principal caufes of challenge, and if proved, cannot be over-ruled, but the juror must be difinifted.

It may be considered as a general rule, that where the party knows the ground of challenge, and does not make it, that he waves it, and cannot take advantage of it under a motion in arreft: but if he was ignorant of the caufe of challenge, before the juror was fworn, he may take advantage of it in arreft, d As where two of the jurors before they were impanelled had formed, and declared opinions in favor of one of the parties, which was unknown to the other, the judgment was arrested, becaufe the cafe had not had a fair and impartial trial: but if fuch opinion appears to have been given under fuch circumstances as not to have influenced the verdict, it is no cause of arresting judgment. f It is a good exception to a juror upon a challenge, that he has once tried the fame cause in a lower court; but as the party may receive information of the fact by the copies, it is no ground to arreft judgment after verdict, and he shall be confidered as waving all advantage, because he did not take the challenge.

Challenges

a Kith. Rep. 184. Ibid. 62. Ibid. 166.

b3 Black. Com. 363% . Ibid.

✔ Kich. Rep. 12

Challenges to the favour, are founded merely upon probable circumflances of fufpicion: as particular friendship, or enmity to either of the parties: and where the court has reason to think, that there is fuch a bias, or prejudice upon the mind of the juror, as renders it probable that there will not be a candid and fair trial, they have a difcretionary power to difinifs a juror: but they ought not to indulge the unreasonable and groundlefs fufpicions of the parties. An exception to a juror founded on a challenge to the favor, can not be taken under a motion in arreft. All challenges of jurors are decided by the court.

After the jury are regalarly impanelled and fworn, the declaration and pleadings are read to them. The council on each fide frequently flate the material points on which they rely, for the purpofe of opening the cafe to the jury, and fhortening the trial. The party who takes the affirmative of the iffue, and on whom the burden of proof lies, proceeds to adduce his witneffes, and is followed by the other party.

In treating of the feveral kinds of actions, I have hinted at the proof peculiar and neceflary to each; and in this place I have only to treat of the general nature, principles, and rules of evidence." Evidence is intended to furnifh the minds of the tricrs with demonstration or conviction of the truth of the facts difputed by the parties, and put in ifiue. As it is impoffible from the courfe of things, and the imperfection of human nature, to obtain compleat demonftration of the truth of facts in all cafes, it has become neceflary to establishi certain general rules, and adopt certain general principles, by which courts and jurors are to be governed, in forming their opi nion with respect to the matters of fact that come before them for trial.

Evidence may be faid to be oftwo kinds, written, and unwritten, or parol.

1. Of written Evidence,

Written evidence confits of the records of the legiflature, of the courts of law, and of the proceedings of all corporations, fuch as towns and focieties, and all others, where their votes and acts are directed.

* 3 Black. Com. 363.

I h

Kirb. Rep. 133.

directed to be recorded. To prove records, it is not neceffary to produce the original papers on which they are entered in court, be. cause they are to be preferved in fome place for general benefit, and if removed, would be expofed to lofs; tho the producing of the original record would be good evidence. But they are regularly to be proved by an exemplification, or a copy certified, and attested by fome proper officer; as the fecretary in cafes of the records of the legislature; the clerks in courts of law, and towns and focieties: for tho the law requires in all cafes the higheft evidence the nature of the cafe is capable of, yet as it would be very inconvenient to produce the original records, it confiders an exemplification to be proper evidence; and which is indeed as high evidence as the record itself.

All

A record cannot be fubftantiated, or contradicted by parol teftimony; for every record imports in itself abfolute verity, and no proof can be admitted to contravene it. Therefore where an issue is joined upon "no fuch record," the record, or rather an exemplification or attefted copy is to be produced, and this is to be the only evidence upon which the court are to decide the fact. exemplifications of records from any of the courts in any of the other States in the Union, must be under the feal of the court from whence they are taken. In all the public offices instituted by law in the United States, as the departments of the treasury, of ftate, and of war, in all the public offices inftituted in this ftate, as the treafury and comptroller's office; and in all the public offices inftituted in any of the reft of the United States, copies of thofe acts, and proceedings, of which regular entries are made in books kept for that purpofe, certified by the proper officer, are evidence in courts

of law.

Written evidence alfo confifts of the private contracts of parties which they have reduced to writing.

Of the evidence of deeds. The general rule is, that where any thing is to be proved, the deed itfelf mult be given in evidence, and not a copy of it; for tho copies of records are allowed, yet deeds being only private evidence, not confined to any place, and.

a Woodbridge vs. Grant, Sup. C. 1790. Morgan's Effays, Iss.

in

Gilb. Evid. 95. 10 Conga.

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