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that the contending parties and their witnesses might not be unde the neceslity of travelling on Sundays to attend them.

If the use of juries should be thought fit to be continued in criminal prosecutions, they should be summoned only once a month, that the inhabitants might not be too much diverted from the care of their private concerns by their attendance on the courts in that capacity. But all those parts of the criminal prosecutions that do not require the attendance of juries, and, if the use of juries was laid aside, the whole of those proceedings should be carried! on in the the weekly sessions, as well as all the civil business of the districts.

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The method of proceeding in these courts in civil actions might be as follows. The plaintiff might bring a declaration, or plaint, in writing into court (which might be either in the French language or the English, as he thought proper) praying the process of the court to ciuse the defendant to be summoned to answer it, but not to be arrested by his body. This plaint hould be read to the judge in open court, in order that he thould determine whether or no it contained a good cause of action : and till he approved it, no fummons should be issued upon it. If he approved it, he should order it to be filed amongst the records of the court by the clerk. or register of the court, and mould at the same time award a summons to be sent to the defendant to come and answer the: plaintiff's demand at such future day as the judge should therein. appoint.

If the defendant neglected to appear in court at the time appointed by the summons, without any good reason for such neglect, he should be condemned to pay to the plaintiff a moderate sum of money, to be ascertained by the judge, and which should not exceed the sum of five shillings Sterling, as a compensation to the plaintiff for his expence and trouble in attending the court, at the time appointed by the said summons, to no purpose; and he should be summoned a second time, to come and answer the plaintiff's demand at another time: and if he then also neglected to come, judgment should be given against him by default.


When the defendant appeared, he should make his answer to the plaint of the plaintiff in writing, and either in the French or English language, as he thought proper : and his answer should of course, and without the judge's approbation of it, be filed amongst the records of the court. And then (as it is not probable that the plaint and answer would be drawn fo ably, in this country of dulness and ignorance, as to affirm and deny clearly and pointedly the several facts mentioned in them) the judge himself should interrogate the parties concerning those facts which were material to the decision of the cause, in their account of which the contending parties seemed to differ : and these interrogatories made to the contending parties, and the answers made to them by the parties, should be reduced to writing by the judge, or by the clerk The issues, or of the court, from words dictated to him by the judge. And the contending when the judge had thus found out in what points of fact, material

parties difto the decision of the cause, the parties differed, he should himself be drawn up in

the state these facts in writing, and declare to the parties, that it was judge. necessary for him to be informed by proper testimony whether they were true or false; and thould thereupon ask the parties whether both, or either of them, desired that he should inquire into the truth of those facts by means of a jury, or by examining witnesses, or other proofs, himself.

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If both, or either of the parties desired to have a jury, a jury Juries to be should be summoned to attend at such following session of the court the delire of as the judge Tould appoint. This jury should be paid for their cither of the attendance by the party at whose request they were summoned; they should be

paid for their and if both parties desired to have a jury, then equally by both parties. They should receive about five fhillings Sterling a man. For at present it is a subject of complaint among the Canadians that they are taken from their necessary occupations to attend upon juries (which is by no means an agreeable employment to them) without any consideration for it; and this, if it happened every week, and without any compensation, would be thought (and perhaps justly) a very heavy burthen. But for a reward of five chillings.. they will serve with great alacrity.

These juries should be appointed in, nearly, the same manner as Manner of apaspecial juries are in England: that is, the sheriff should present to the juries. court a list of four times as many persons qualified to be jurymen as


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were necessary to constitute a jury; that is, if a jury was to consist of twelve men, a list of forty-eight persons fo qualified ; and then each party Mould strike out the names of twelve persons from the faid lift ; after which the names of the twenty-four remaining jurymen should be set down in a new list in the following order; to wit, first one at the nomination of the plaintiff, then one at the noinination of the defendant; then another at the nomination of the plaintiff, and then another at the nomination of the defendant; and lo on ; each of the parties alternately nominating one, till the whole number was exhausted. And these persons (whose names were thus set down in this new list in the aforesaid order, and who would be enough in number to constitute two juries) should all be summoned to attend the court on the day appointed for the trial of the cause, and should be called over in the court in the order in which their names were set down in this

And if there appeared fix or more of the twelve nominated by each of the parties, then the first six of those nominated by the plaintiff that appeared when their names were called over, and the first six of those nominated by the defendant that appeared at the same time, should constitute the jury to try the cause. If fewer than six of those nominated by one of the parties, as, for instance, only three, appeared in the court when the names in the jury-list were called over, those three, or other number of persons smaller than six, should make a part of the jury which should try the cause; and the other nine, or other number requisite to make a full jury, should be the first nine, or other such requisite number, of the twelve nominated by the other party

that appeared upon this occasion. The reason of summoning twice as many persons as would be sufficient to compose a jury is to provide against the non-attendance of several of them. If it was found by experience that the persons summoned usually attended very punctually, it might be sufficient to summon only fourteen or fifteen, or perhaps only twelve, or the very number necessary to constitute a jury. In this last case the original list given in by the sheriff should consist of only twenty-four names ;

twenty-four names ; out of which each of the parties should strike fix names, and the remaining twelve persons should be fummoned to try the cause. By this method of appointing a jury the disagreeable and captious practice of challenging jurymen would be avoided, which is apt to give rise to animosities between the persons challenged and the parties who object to them.


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Of the jurymen so chosen a majority should have a right to A majority of determine the verdict ; the present rule of requiring an absolute unanimity amongst all the jurymen being evidently absurd and un-dia. natural, and, amongst other inconveniencies, productive of one of a very important nature, which is the perjury of some of the jurymen in every third or fourth cause that is tried: for it happens at least so often that there is really a difference of opinion amongst the jurymen, and that some go over to the opinion of the rest in opposition to their own sentiments, and consequently contrary to the oath which they have taken to give a true verdict according to the evidence, which doubtless means according to their judgment of it. And it has sometimes happened that a great majority of the members of a jury has gone over to a sinall, but resolute, minority. This therefore calls loudly for a reformation, and more especially in a country where the natural and ordinary differences of opinion that must frequently happen amongst jurymen are likely to be greatly heightened by national and religious prejudices.

If the agreement of twelve men is thought necessary to establish the truth of a fact, it would be necessary to impannel twenty-three jurors. But perhaps a bare majority of twelve men may be sufficient to answer all the purposes of justice in civil matters; and if so, it would be proper that juries Thould consist of thirteen men, that there might in all cases be a majority on one side or the other. In criminal matters it might be proper to make the agreement of two thirds of the jury necessary to the conviction of the accused person ; or, if still greater tenderness to the prisoner was thought expedient, it might be proper to make the unanimous consent of the whole jury necessary to his conviction, but not upon that account to infist upon the jury's bringing in an unanimous verdict, but to consider the difsent of one juryman to the verdict given by the other eleven against the prisoner, after deliberating upon their verdict for twenty-four hours, as a sufficient ground of an acquittal.

And as the istues, os points of fact, that were to be proposed to all the verdias the confideration of the jury, should be drawn up in a minute and secure is die beste particular manner in words dictated by the judge of the court, so the verdicts of the juries should be always special verdiets, stating the facts as the jury find them to have happened, with great exactness and particularity. This would prevent jurors from encroaching upon the province of the judge and determining points


of law by means of the Mort and general verdicts of, Guilty or s not guilty;" he did or did not undertake;" he does or does not owe the sum demanded;" and the like, that oftentimes involve points of law mixed with matters of fact, and thereby give juries an opportunity of committing these irregularities. Whenever these things happen (whether it be from the ignorance and want of discernment of the jurymen, or from their wilfulness and partiality) it is humbly apprehended that a real injury is done to the losing party, whose right it is, according to the laws of England, to have the points of law, upon which his cause depends, decided by the able and learned judges whom the King has appointed to fill the courts of justice, as much as it is to have the matters of fact in the cause determined by a jury of honest freeholders of the neighbourhood.

Lxamination of witnefies.

The witnesses examined in the trial of a cause should be examined viva voce in open court, in the presence of both the parties, or their attornies or advocates ; and cross-examined, if the adverse party thought proper : and they should not be allowed to deliver their testimony by written depositions or affidavits taken in private; not even in those trials that were carried on without a jury; unless by the consent of both the parties, or by the particular direction of the judge, upon very strong reasons for so doing, moved and debated in open court.

When judgement was given for the plaintiff in a civil action, whereby a sum of money was ordered to be paid him by the defendant, either as a debt justly due to him by contract, or by way of compensation for some damage and injury that had been done to him, a writ of execution should go against the goods and lands of the defendant, but not against his person; directing the sheriff, or other ministerial officer that executed the process of the court, to levy the sum of money awarded to the plaintiff upon the defendant's moveable goods and chattels; and, in case they should not be sufficient for the purpose, then, but not otherwise, to sell part of his lands to produce the remainder of that sum. And if the executive officer should not find a sufficient quantity of either moveable or immoveable property belonging to the defendant to raise the sum awarded, and the judge should be of opinion, upon affidavits made before him for that purpose, that there was reasonable

Execution za gainst goods and lands.


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