JURY. 



285 



l>e at issue, and the fact in controversy is to be ascer- 

 tained by a jury. For this purpose, in England, a 

 precept issues to the sheriff' of the proper county, 

 requiring him to select and summon to the court at 

 which the trial is to be had, a suitable number of 

 jurors, for the trial of the cause ; and he accordingly 

 makes return of the names of the jurors, on a piece 

 of parchment or paper (thence, as before stated, cal- 

 led apanel), who are compellable to attend at the 

 time and place appointed. If the sheriff have any 

 interest in the case, or is not impartial, or is related 

 to the parties, the jurors are selected by some other 

 proper officer, and usually by the coroner of the 

 comity. The qualifications of petty jurors do not dif- 

 fer, generally, from those required as to grand jurors, 

 their duties being equally important, and requiring 

 equal intelligence. When the cause is called for trial, 

 if all the jurors do not appear, or any of them are justly 

 objected to and set aside (of which we shall speak 

 hereafter), the deficiency may be supplied from among 

 the by-staiiders, having suitable qualifications, which 

 is called taking jurors de talibus circumslantibus, 

 from which circumstance the persons thus selected 

 are denominated talesmen. The jury, being thus 

 full, and above objection, are sworn (severally or 

 together, according to the local usage in each state) 

 well and truly to try the issue between the parties, 

 and a true verdict to give " according to the evi- 

 dence" (or "according to the law and the evidence 

 given them," by the local usage of some states). In 

 some cases, special juries are allowed to be selected, 

 in a particular mode, for the purpose of trying par- 

 ticular causes ; in other cases, the trials are by a jury 

 chosen in the ordinary manner, and thence called a 

 common jury. But these distinctions are unknown 

 in :some of the states of .America, though they are 

 very important in the practice in England. After the 

 jury is sworn, the cause is then tried in open court, 

 the evidence is then offered, and the witnesses pub- 

 licly sworn and examined in the presence of the 

 judges, the counsel on each side, the jury, and all 

 other persons in attendance. The question, whether 

 any evidence is competent to be given to the jury, 

 is, if any objection is made, first decided by the court. 

 If rejected, it is never heard by the jury ; if admitted, 

 it is then read, or, if given by a witness, he is then 

 examined before the jury. The party who.calls a wit- 

 ness first examines him, and he is then liable to be 

 cross-examined by the other side ; and if any question 

 is asked which either party deems improper, the opin- 

 ion of the court is taken on it before the witness is 

 allowed to give his answer. So, also, it is, in respect to 

 any written evidence or document offered at the trial. 

 And if either party requests it, the judge who presides 

 at the trial makes a note, in writing, of the objection, 

 so that the party may avail himself of it afterwards, 

 upon a motion for a new trial, or by a writ of error, 

 in a suitable manner. Before the evidence is offered, 

 the counsel for the party who opens the cause, on 

 each side makes a short introduction, stating the case, 

 the points in controversy, and the facts which he 

 expects to prove, so that the jury may more clearly 

 understand the bearing of the evidence, as it is pro- 

 duced. After all the evidence is gone through, the 

 counsel on each bide argue the case to the jury, at 

 large, commenting upon every part of it, and each 

 insisting upon a verdict in his- favour. If any ques- 

 tions of law arise (as in most instances they do), 

 the judge is requested, and is bound, publicly to 

 state his opinion on all the points of law applicable 

 to it. This he ordinarily does in summing up the 

 case, after the arguments of the counsel are over ; 

 but he may do it before, if he chooses. When the 

 arguments are finished, the presiding judge,, in Eng- 

 land, and of most of the states in America, proceeds to 



address the jury, stating to them the questions, reca- 

 pitulating the evidence, and commenting on it in 

 such a manner as he deems correct, for the purpose 

 of enabling the jury to understand it well, and to 

 apply the law properly to it. In these addresses, he 

 often freely expresses his opinion as to the weight of 

 evidence, the sufficiency of the proofs, the force of 

 particular objections, and the comments of the 

 counsel . But, it being a principle of law, that the 

 jury is to respond as to matters of fact, and the 

 judges as to matters of law (ad quastiones facti re- 

 spondent juratores, ad qucestiones legis respondent 

 judices), it is always understood, that these com- 

 ments on matters of fact are not binding on the jury, 

 and that they are given solely with a view of 

 enabling the jury to exercise their functions more 

 perfectly, and that the jury are at liberty to disre- 

 gard them if they please. But, generally speaking, 

 they do receive great weight from the jury, who 

 naturally place confidence in the judges, from their 

 talents, experience, and impartiality ; and therefore, 

 unless the judge obviously exhibits some impro- 

 prieties, or betrays some unjustifiable feeling, they 

 consider him as a friend, aiding and assisting them 

 in their duty ; and, his addresses being always in 

 public, and open to the criticism of the public, as 

 well as of the profession, it rarely occurs that his con- 

 duct is deemed exceptionable. Still the jury have a 

 right to form, and do form an independent judgment 

 upon matters of fact ; and their judgment is often 

 conclusive. After the judge has finished his sum- 

 mary, the jury withdraw into a private room, where 

 they are kept together for the purpose of deliberation, 

 until they have all agreed in a verdict (veredictum) 

 upon the point in controversy. They are not permitted 

 to have any intercourse with any other persons, and 

 are allowed, during their continuance in secret ses 

 sioii, to have only such food and other necessaries as 

 are indispensable. Indeed, by the old law, they were 

 to be kept without meat, drink, fire or candle, until 

 they were agreed, unless by permission of the court, 

 which soon, however, became almost a matter ot 

 course. When they are agreed, they come into open 

 court, and their names being called, they deliver in 

 their verdict, which is recorded by the proper officer, 

 who then reads it aloud to the jury, and asks them if 

 they agree to it as recorded, to which they publicly 

 assent. If either party doubts it, the jurymen are 

 severally asked if they agree, which is called polling 

 the jury. Sometimes when the facts are very com- 

 plicated, or involve questions of law of great diffi- 

 culty, the jury instead of finding a general verdict, 

 that the issue of fact is for the plaintiff 1 or for the 

 defendant, state all the facts at large, and ask the 

 court to decide upon those facts, whether the issue 

 ought to be found for the plaintiff' or for the defen- 

 dant. This is called a special verdict. It rarely 

 occurs in criminal cases, and is not very common in 

 civil cases. But the jury are never obliged to find 

 a special verdict, and may, in all cases, give a 

 general verdict, if they choose. If the jury, after 

 being kept together a considerable time, cannot 

 agree, they are usually brought into court by the 

 proper officer, and the court, if their difficulty is 

 about any matter of law, often makes additional 

 explanations. But if, after every reasonable effort, 

 the jury continue to disagree, they are discharged by 

 the court, and the cause must then be tried anew. 

 In criminal cases, and especially in capital cases, tlie 

 court with great reluctance allow the discharge 

 of a jury, alter the cause is once committed to them. 

 Next, as to the trial by jury in criminal cases. 

 Here the qualifications of jurors do not differ from 

 those required in civil cases. But the law. with a 

 view to prevent the undue influence of the govern- 



