ving
the _onus probandi_ (or burthen of proof) upon the accused. And this may
have been one cause of the frequent resort to _alibis_--a mode of
defence which, as we have already remarked, is even yet in great
disrepute. If a defence, of some sort, was not, then, very clearly and
satisfactorily made out, the justice had no hesitation in entering
judgment, and ordering immediate punishment; for the right of appeal was
not generally recognised, and the justice took original and final
jurisdiction, where now his duties are merely those of preliminary
examination and commitment.

In civil controversies--where such causes were presented for
adjudication, which, however, was not very often--the order of
proceeding was quite as summary. The justice heard the statements of the
parties, and sometimes, not always, would listen to witnesses, also;
then, taking the general "rights, interests, claims, and demands," of
both sides into consideration--and viewing himself, not as a judicial
officer, but as a sort of referee or arbitrator--he would strike a
balance between the disputants, and dismiss them to their homes, with a
significant admonition to "keep the peace." He usually acted upon the
principle--no very erroneous one, either--that, when two respectable men
resort to the law, as arbitrator of their controversies, they are both
about equally blamable; and his judgments were accordingly based upon
the corollary, that neither deserved to have all he claimed. This was
the practice when any decision was made at all; but, in most cases, the
justice acted as a pacificator, and, by his authority and persuasion,
induced the parties to agree upon a compromise. For this purpose, he not
unfrequently remitted both fees and costs--those due to the constables,
as well as his own.

An instance of this pacific practice has been related to me as follows:
Two neighbors had quarrelled about a small amount of debt, and, after
sundry attempts to "settle," finally went to law. The justice took them
aside, on the day of trial, and proposed a basis of settlement, to which
they agreed, _on condition_, that all costs should be remitted, and to
this the magistrate at once pledged himself. But a difficulty arose: the
constable, who had not been consulted in the arrangement, had had a long
ride after the defendant, and having an unquestionable right to demand
his fees, was unwilling to give them up. The justice endeavored to
prevail with him by persuasi