seals, by which their families were distinguished. Those were not numerous; and as causes were tried by men in the neighbourhood, it was supposed that the seals were so notorious, as to be well known to the jury. Papers under seal therefore, carried their own evidence along with them; and, indeed, it is probable, that in many instances it was thought sufficient to affix a seal without any subscribing evidence, so that the instrument was affixed to the seal alone. But the notoriety of seals has long ceased. Every man now takes what seal he pleases.-It does not appear that the point has been brought before any court for the last half century, during which period, the commerce of the world has been prodigiously enlarged, and commercial people make very little use of seals in their transactions. I have never known this question expressly decided in Pennsylvania; but I take it, that in practice the English rule has not been extended here.”

In the state of New-York the practice is, not to allow the jurors to have the papers produced in evidence, without the consent of parties. Yet there appears to be no good reason why the judge at the trial should not exercise his discretion in giving or withholding the papers, as may best promote the ends of justice. And should he exercise such a discretion, and an exception be taken, there is little doubt, that, following up the intimation in Hackley v. Hastie,(1) the court would meet the question upon the ground of sound discretion, rather than of strict right.

5. It was formerly held that if the jury separated, after being charged with the case, and before they rendered their verdict, except by permission of the court and consent of parties, or from necessity, it avoided their verdict ; but the modern rule is different.

(1) 3 Johns. Rep. 252.

The nature, duration and privations of the confinement of the jury, after they retire, are thus stated by Lord Coke : "By the law of England, a jury, after their evidence given upon the issue, ought to be kept together in some convenient place, without meat or drink, fire or candle, which some books call an imprisonment, and without speech with any, unless it be the bailiff, and with him only if they be agreed. After they be agreed, they may, in causes between party and party, give a verdict, and if the court be risen, give a privy verdict before any of the judges of the court, and then they may eat and drink, and the next morning, in open court, they may either affirm or alter their privy verdict, and that which is given in court shall stand. But in criminal cases of life or member, the jury can give no privy verdict, but they must give it openly in court."(1)

In the Earl of Kent's case, (2) the jury being sworn at the bar, retired to the open street, and there came such a tempest, that some of the jury departed without leave of the justices. One of the jurors came into a house, where he was cautioned by divers persons to take care what he did, for the matter was better for the Earl of Kent than for the bishop, and was asked to drink, and did drink. And after the storm ceased, the jurors rejoined each other, and found for the bishop. The Earl of Kent had the whole matter certified to the court. The point of the jury's dispersion, was argued and re-argued in the exchequer chamber, and after much deliberation, the court stood six to four, sustaining the verdict. Upon a like principle of necessity, it has been gravely held, what would not in modern practice bear to be disputed, that a separation of the jury by reason of a sudden affray, fire, or a house about to fall, and the like, would not avoid the verdict, nor would the jury be amerced.(3)

(1) Co. Litt. 227.

(2) Bro. Ab. Verdict, pl. 19.

(3) Bro. Ab. Verdict, pl. 19. Com. Dig. Enquest. F.

The modern practice in England is to permit the jury to separate, even in criminal cases in the discretion of the judge; and where there is no ground to suspect they have been practised upon during the interval of their dispersion, it will not vitiate their verdict. This has been so recently and so fully illustrated in the case of The King v. Woolf and others,(1) as to settle the practice on this point, if any doubt existed before.

The defendants were indicted for a conspiracy to obtain goods by undue means. At the trial before Abbott, Ch. J., the defendants, Mozely, Woolf, Levy, and Kinnear, were found guilty. They moved for a rule to show cause why the verdict should not be set aside, on the ground that the finding of the jury was void, the jury having dispersed, during the interval of an adjournment, before they delivered their verdict. The affidavits, in support of this motion, stated in substance, that the trial had lasted two days; that in the morning the trial commenced, and about 11 o'clock at night, the case being then unfinished, the court adjourned until the following morning; and the jury separated and retired to their respective homes. The next morning they assembled again, and the case being concluded at a late hour in the afternoon of that day, they found the defendants guilty. The defendants and their attorneys were wholly ignorant of the fact of the jury having separated, until after they had found their verdict. The judges delivered their opinions seriatim; but that of Abbott, Ch. J. will sufficiently illustrate the modern rule.-"I am of opinion that there is no sufficient foundation for the present application. The application is grounded upon the suggestion of these two facts: First, that the jury had dispersed during the night. Secondly, that that fact was not known to the defendants until after the trial was over. Now the trial

(1) 1 Chitty's Rep. 401.

began between nine and ten in the morning; it had proceeded until eleven o'clock at night or later, before the evidence on the part of the prosecution was closed. Learned counsel were employed separately for several defendants. It must be assumed, that in that stage of the case, evidence would be laid before the jury on the part of the defendants. It became matter, therefore, of necessity, that the trial should be adjourned, and an adjournment accordingly took place from the necessity of the case, the jury being fatigued both in mind and body; and it would have been most injurious to the case of the defendants, even if the judge and jury had had strength enough to go on, till the trial came to a close; I say most injurious to the case of the defendants, if their case was heard by persons whose minds were exhausted with fatigue, as it would have been, if an adjournment had not taken place. An adjournment of this nature is not necessarily followed by the dispersion of the jury, for in many cases, they are kept together till the final close of the trial. But I am of opinion, that in a case of misdemeanor, their dispersion does not vitiate the verdict ; and I ; found my opinion upon the admitted fact, that there are many instances, of late years, in which juries upon trials for misdemeanors, have dispersed and gone to their abodes during the night for which the adjournment took place, and I consider every instance in which that has been done, to be proof that it may be lawfully done. It is said, that in some of those instances, the adjournment and dispersion of the jury have taken place with the consent of the defendant. I am of opinion, that that can make no difference. I think the consent of the defendant in such case ought not to be asked; and my reason tor thinking so is, that if that question is put to him, he cannot be supposed to exercise a fair choice in the answer he gives, for it must be supposed that he will not oppose any obstacle to it; for if he refuses to accede to such an accommodation, it will excite that

feeling against him which every person standing in the situation of a defendant would wish to avoid. I am also of opinion, that the consent of the judge would not make, in such case, that lawful, which was unlawful in itself; for if the law requires, that the jury shall at all events be kept together, until the close of a trial for misdemeanor, it does not appear to me, that the judge would have any power to dispense with it. The only difference that can exist between the fact of the jury separating with or without the approbation of the judge, as it seems to me, is this, that if it be done without the consent or approbation of the judge, express or implied, it may be a misdemeanor in them, and they may be liable to be punished; whereas, if he gives his consent, there will be no such consequence of a separation. But, though it may be a misdemeanor in them to separate without his consent, it will not avoid the verdict, in a case of this kind, as it would, if the law required the jury to be absolutely kept together.-It seems to me, that the law has vested in the judge the discretion of saying, whether or not, in any particular case, it may be allowed to the jury to go to their own homes, during a necessary adjournment throughout the night.-For these reasons it appears to me that there is no ground for the present application, and I conceive, we ought not to give any reason to suppose that any doubt exists, when none really exists in our minds."

No case precisely in point has occurred, defining the power of the judge at the trial, and settling the American practice on the subject of the separation of jurors, at least in criminal cases. The uniform practice it is believed in this country is, not to permit the jury to separate in any stage of the progress of a criminal suit, after the case is given them in charge by the court, without consent of counsel. But there is little doubt, should the question arise upon a similar state of facts, as in the King v. Woolf, the