But for the better illustrating and clearing of the rules and methods of descents, and of the different directions of the civil law, the canon law, and the common law therein, I shall here subjoin the so-much-famed Arbor Civilis of the civilians and canonists which being compared with the Gradus Parentela in the First Institutes, will fully illustrate what has been already said (1).

Clerk, v. Harpur, and, in which the point in question arose, and was dis cussed.—The learned Judge, adopted the opinion of Mr. Justice Blackstone, and nonsuited the plaintiff. In the following Term, a motion for a new trial, was made in C. P. by Mr. Serjeant Shepherd; and a rule to shew cause granted; but, without any cause being shewn against the rule, Mr. Justice Rooke admitted that though he had entertained that opinion at the trial, yet on more mature consideration, was satisfied his decision was wrong, and that the opinion of Sir Matthew Hale was right on the subject,

Here it may in general suffice to observe, that inheritable blood is wanting to such as are not related to the person last seised—to maternal relations, in paternal inheritances; and vice versa―to kindred of the half blood—to monsters-bastards-aliens, and their issue-lo persons attainted of treason or felony, and to papists, in respect of themselves only by the statute law, 11 & 12 W. III. c. 4. but see 18 Geo. III. c. 6. and 31 Geo. III. c. 32.-Persons so circumstanced, are excluded from taking by descent; and in consequence, the estate in the language of the law, "escheats" or falls to the lord of the fee. See Blac. Com. 1. 4. c. 15. passim.

Mir. cap.

(1) Brac. 1. 2. cap. 31. Brit. cap. 89. Fleta, 1. 5. cap. 7. sec. 3. Co. Lit. 18. b.-Bracton and Britton, mention that they had drawn out, in their books, a tree of parentage, by which it would plainly appear how the degrees of consanguinity are to be accounted, which is not printed in either of their books; therefore, says Plowden (fo. 451. ed. 1761.)→I have drawn it out in the line direct descending and ascending, according to the notion of Bracton (as far as I was able to collect from his book,) which is agreeable with the civil law; and which Sir Matthew Hale seems to have adopted.

CHAP. XII.

Touching Trial by Jury.

HAVING in the former chapter somewhat largely treated of the course of descents, I shall now, with more brevity, consider that other title of our law which I before propounded-in order to evidence the excellency of the laws of England above those of other nations,-viz. the trial by a jury of twelve men; which, upon all accounts, as it is settled here in this kingdom, seems to be the best trial in the world. I shall therefore give a short account of the method and manner of that trial (A).

(A) The method of trial by jury, which is also denominated trial per pais, or by the country, is justly esteemed one of the chief excellencies of our Constitution, it being an institution most admirably calculated for the preservation of liberty, life, and property: indeed, what greater security can we have for these inestimable blessings, than the certainty that we cannot be divested of either, without the unanimous decision of twelve of our honest and impartial neighbours? Our sturdy ancestors insisting on it as the principal bulwark of their liberties, compelled the confirmation of it by Magna Charta ; "Nullus liber homo capiatur, (speaks the Charter, chap. 29.) vel imprisone"tur, aut disseisietur de libero tenemento suo, vel libertatibus, vel liberis "consuetudinibus suis, aut utlagatur, aut exuletur, aut aliquo modo destru"etur, nec super eum ibimus, nec super eum mittimus, NISI PER LEGALE 66 JUDICIUM PARIUM SUORUM, vel per legEM TERRÆ.”

The invention of this species of trial has been attributed to the superior genius of Alfred; there seems but little reason, however, to adopt the idea; the merit of Alfred consisting rather in fixing the number, and determining the qualities of jurors, than in the institution itself (a). The truth seems to be, that this tribunal was universally established among all the Northern nations, and so interwoven in their very constitutions, that the earliest account of the one gives us also some traces of the other. There seem to be some traces of it, in the institutions of Odin, the first great leader of the Asiatic Goths, or Getæ, into Europe. Upon his expedition, he ordained a council of twelve to decide all matters which might come in question. At first they

(a) Sulliv. Lect. xxvi.

First, the writ to return a jury issues to the sheriff of the county (a). And,

First, HE is to be a person of worth and value, that so he may be RESPONSIBLE for any defaults, either of himself, or his officers; and is sworn, faithfully and honestly to execute his office. This officer is entrusted to elect and return the jury, which he is obliged to do in this manner: first, without the nomination of either party; secondly, they are to be such persons, as for estate and quality are fit to serve upon that employment; thirdly, they are

(a) For the antiquity and office of sheriff, see Co. Lit. 168. Blac. Com. I v. 116. but particularly Id. 338 to

348. and Seld. notes upon Fortesc. de Laud. cap. 24.

were both jurors and judges. Their decisions were highly respected. But in process of time, the business increased ;-matters of fact only were submitted to twelve men; and one or more of the learned were to give sentence, according to the ancient customs, records, and traditions. So, from the Gothic laws of Spain, it is manifest the institution was known and practised there. See Hist. des Cortes d'Espagne, par M. Sampere. The Spanish jury, however, was of dubious utility: and no efforts were made to produce the improvements of which it was susceptible. They cast away the unpolished gem, contemning its worth, and disdaining the labour of bringing out its lustre. Far different was the cheering progress of the laws of England.-Never wholly or suddenly departing from their pristine character, it has been the peculiar happiness and blessing of this country, that the institutions of the early ages have lost their rudeness, but retained their vigour. The erring tests of truth have been allowed to sink into oblivion; and the cumbersome array of compurgators, which often averted the righteous vengeance of the law, has been gradually matured into that great tribune of our peers, which will ever remain the best safeguard of life and freedom. Among the Saxons, causes were adjudged by the aldermen and bishop of the shire, with the assistance of twelve men of the same county. Temp. hist. 155. In this nation, it has been used time out of mind, and is coeval with the first civil government thereof; and though its establishment was shaken for a time by the introduction of the Norman trial by battle, it was always so highly valued by the people, that no conquest, no change of government, could ever prevail to abolish it. See Fortesc. de Laud. Leg. Ang. cap. 25. Spelm. Gloss. verb. Jnrata. Glanv. 1. 2. c. 7. Co. Lit. 155. Co. in Pref. to the 3d and 8th Rep. Blac. Com. 3 v. c. 23. passim. Sulliv. Lect. p. 247, 251, 294, 356. Barr. on Stat. 17, 18, 19, 86, 457. Hickes's Thes. vol. II. p. 34, Hall. View, c. 8. See also an essay on "The Constitu❝tion of England," written by J. L. de Lolme, cap. 9, 10, 11. This book is recommended to the public, by the author of the elegant letters under the signature of Junius, "as a performance, deep, solid, and ingenious." Pref. 31.

to be of the neighbourhood of the fact to be inquired, or at least of the county or bailiwick (b). And, fourthly, anciently four, and now two of them at least, are to be of the hundred (B).

Secondly, touching the number and qualifications of the jury.

(b) Vicinus facta vicini præfumitur scire. 1 Inst. 125.

(B) By the policy of our ancient law, the jury was to come de vicineto, from the neighbourhood of the place where the action was laid; and therefore, they were summoned from the very hundred in which the cause of action arose; and, in the opinion of Gilbert, the fact itself was originally deter mined in the court of the hundred. Living in the neighbourhood, they were most unquestionably of the very county, or pais, to which both parties had thought proper to appeal; and thus circumstanced, were supposed to have had a prior and a perfect knowledge, as well of the characters of the parties themselves, as of the witnesses, which each of them might think proper to adduce, in support of that, which he was called upon either to validate or defend and from whence it was concluded, that they the better knew what credit to give to the facts in evidence before them. This convenience, however, was soon materially affected, from the difficulty of obtaining twelve freeholders in every hundred. To this difficulty may be added an inconvenience, which, in process of time, resulted from this ancient and long-continued mode of summoning the jury. It was found (Bar. Stat. 110.) that the jurors, from the very circumstance alone of being of the immediate neighbourhood, were too apt to be prejudiced. Long sensible of the difficulty of obtaining a perfect jury from the hundred, and daily perceiving the partiality of their decisions, our law has for a long time been gradually relinquishing the practice. In the reign of Edward the Third, the number of necessary hundredors was constantly six-these, in the time of Fortescue (a), were reduced to four. Indeed the statute 35 Hen. VIII. c. 26. restored the ancient number of six, but that was soon virtually repealed by statute 27 Eliz. c. 6. which required only two. However the number were reduced, yet some were continued; the law still conceiving it to be necessary that some at least of the pares of the hundred, should determine the fact between the parties.-Sir Edward Coke indeed (b) adduces such a variety of instances, in which the Courts permitted the necessary number to be evaded, that it is manifest they were heartily tired of it.—At length, by statute 4 & 5 Ann. c. 16. it was entirely abolished in all civil actions, except on penal statutes; and upon those also by 24 Geo. 2. c. 18. the jury being now only to come de corpore comitatus, from the body of the county at large, and not de vicineto, or from the particular neighbourhood. See Baron Gilbert's Hist. and Pract. of the Court of Common Pleas, cap. 6, 7, 8. passim; a book which will reward the most studious attention.— It must be confessed, however, that this posthumous work, of so excellent an author, has suffered much from the ignorance and inattention of those who have attempted to edite it. See also Mr. Hargrave's note on Co. Lit. 125. a. and H. H. P. C. 2 v. 272.

(a) De Laud. c. 25.

(b) 1 Inst. 157.

As to their number, though only twelve are sWORN, yet twentyfour (c) are to be RETURNED, to supply the defects or want of appearance of those that are challenged off, or make default (d). Their qualifications are many, and are generally set down in the writ that summons them (e). They are to be PROBI ET LEGALES HOMINES. Of sufficient freeholds, according to several provisions of acts of parliament (C). Not convict of any notorious crime that may render them unfit for that employment. They are not to be of the kindred, or alliance, of any of the parties. And not to be such as are prepossessed or prejudiced before they hear their evidence.

Thirdly, the time of their return (ƒ).

Indeed, IN ASSIZES, the jury is to be ready at the bar, the first day of the return of the writ; but in other cases, the

(c) At common law, even in civil" delighteth herself in the number cases, the sheriff might have returned "twelve."-For his reason, which is more than twenty-four, if he pleased. somewhat quaint, see Co. Lit. 155. a. He is restricted to twenty-four by the stat. West. 2. c. 38. The statute extends not to criminal prosecutions. Kelyng. 16.

(d) Fortesc. de Laud. cap. 25. Sir Edward Coke thinks" that the law

(e) The writ of venire facias. Seld. on Fortesc. de Laud. c. 25. Blac. Com. 3 v. 352.

(f) The sheriffs should, by summons, notify to them their return, and likewise shew them the panel.

(C) By the statute Westminster 2. 13 Ed. I. c. 38. none shall pass on juries, in assizes, within the county, but such as may dispend twenty shillings by the year at the least; which is increased to forty shillings by the statute 21 Ed. I. statute 1 and 2 Hen. V. statute 2. c. 3. This was doubled by the statute 27 Eliz. c. 6. which requires in every such case the jurors to have estate of freehold to the yearly value of four pounds at the least. But the value of money at that time decreasing very considerably, this qualification was raised by the statute 16 and 17 Car. II. c. 3. to twenty pounds per annum, which being only a temporary act, for three years, was suffered to expire without renewal, to the great debasement of juries. However, by the statute 4 and 5 W. and M. c. 24. it was again raised to ten pounds per annum in England and six pounds in Wales, of freehold lands or copyhold; which is the first time that copyholders (as such) were admitted to serve upon juries in any of the king's courts ; though they had before been admitted to serve in some of the sheriff's courts, by statutes 1 Rich. III. c. 4. and 9 Hen. VII. c. 13. And, lastly, bystatute 3 Geo. II. c. 25. any leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of twenty pounds per annum over and above the rent reserved, is qualified to serve upon juries. When the jury is de medietate linguæ, that is, one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall be cause of challenge to the alien, for, as he is incapable to hold any, this would totally defeat the privilege.