as much right to sway their judgment as the written or parol evidence which is delivered in court. And therefore it hath been often held, (g) that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors, to find according to their evidence, was construed (h) to be, to do it according to the best of their own knowledge. This seems to have arisen from the ancient practice in taking recognitions of assise, at the first introduction of that remedy; the sheriff being bound to return such recognitors as knew the truth of the fact, and the recognitors, when sworn, being to retire immediately from the bar, and bring in their verdict according to their own personal knowledge, without hearing extrinsic evidence or receiving any direction from the judge. (i) And the same doctrine (when attaints came to be extended to trials by jury, as well as to recognitions of assise) was also applied to the case of common jurors; that they might escape the penalties of the attaint, in case they could shew by any additional proof, that their verdict was agreeable to the truth, though not according to the evidence produced; with which ad ditional proof the law presumed they were privately acquainted, [375] though it did not appear in court. But this doctrine was again gradu ally exploded, when attaints began to be disused, and new trials introduced in their stead. For it is quite incompatible with the grounds upon which such new trials are every day awarded, viz. that the verdict was given without, or contrary to, evidence. And therefore, together with new trials, the practice seems to have been first introduced, (k) which now universally obtains, that if a juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court. When the evidence is gone through on both sides, the judge, in the presence of the parties, counsel, and all others, sums up the whole to the jury omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such marks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence. The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict: and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed." A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For by the golden bull of the empire, ) if, after the congress is opened, the electors delay the election of a king of the Romans or thirty days, they shall be fed only with bread and water, till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is fineable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their agents, after they are [376] gone from the bar; or if they receive any fresh evidence in private ; or if to prevent disputes they cast lots for whom they shall find; any of these circumstances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or impri g Year-book, 14 Hen. VII. 29. Plowd. 12. Hob. 227. 1 Lev. 87. ch. 2. (37) Pending a trial of long duration the jury may be adjourned, and in civil cases may sepsrate; bat after the judge has summed up they cannot separate. 2 Bar. & Ald. 462. soned, (m) the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart. (n) This necessity of a total unanimity seems to be peculiar to our own constitution; (o) or, at least in the nembda or jury of the ancient Goths, there was required (even in criminal cases) only the consent of the major part; and in case of an equality, the defendant was held to be acquitted. (p)38 When they are all unanimously agreed, the jury return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement; to which by the old law he is liable, as has been formerly mentioned, (4) in case he fails in his suit, as a punishment for his false claim. To be amerced or a mercie, is to be at the king's mercy with regard to the fine to be imposed; in misericordia domini regis pro falso clamore suo. The amercement is disused, but the form still continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be nonsuit, non sequitur clamorem suum. Therefore it is usual for plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited, or withdraw himself: whereupon the crier is ordered to call the plaintiff : and if neither he, nor any body for him, appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason of this practice is, that a nonsuit is more eligible for the plaintiff, than a verdict against him: for after a nonsuit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, [377] and judgment consequent thereupon, he is for ever barred from attacking the defendant upon the same ground of complaint. But, in case the plaintiff appears, the jury by their foreman deliver in their verdict. Mirr. c. 4. § 24. (38) The learned judge has displayed much erudition in the beginning of this chapter, to prove the antiquity of the trial by jury; but the trials referred to by the authors there cited, and even the judicium parium, mentioned in the celebrated chapter of magna charta, are trials which were something similar to that by a jury, rather than instances of a trial by jury according to its present established form. The judicium parium seems strictly the judgment of a subject's equals in the feudal courts of the king and barons. And so little appears to be ascertained by antiquarians respecting the introduction of the trial in criminal cases by two juries, that although it is one of the most important, it is certainly one of the most obscure and inexplicable parts of the law of England. The unanimity of twelve men, so repugnant to all experience of human conduct, passions, and understandings, could hardly in any age have been introduced into practice by a deliberate act of the legislature. But that the life, and perhaps the liberty and property of a subject, should not be affected by the concurring judgment of a less number than twelve, where more were present, was a law founded in reason and caution; and seems to be transmitted to us by the common law, or from immemorial antiquity. The grand assize might have consisted of more than twelve, yet the verdict must have been given by twelve or more; and if twelve did not agree, the assize was afforced, that is, others were added till twelve did concur. See 1 Reeve's Hist. of Eng. Law, 241. 480. This was a majority and not unanimity. A grand jury may consist of any number from twelve to twenty-three inclusive, but a presentment ought not to be made by less than twelve. 2 Hale P. C. 161. The same is true also of an inquisition before the coroner. In the high court of par liament, and the court of the lord high steward, a peer may be convicted by the greater number; yet there can be no conviction unless the greater number consists at least of twelve. 3 Inst. 30. Kelyng. 56. Moore, 622. Under a commission of lunacy the jury was seventeen, but twelve joined in the verdict. 7 Ves. Jun. 450. A jury upon a writ of inquiry may be more than twelve. In all these cases if twelve only appeared, it followed as a necessary consequence, that to act with effect they must have been unanimous. Hence this may be suggested as a conjecture respecting the origin of the unanimity of juries, that, as less than twelve, if twelve or more were present, could pronounce no effective verdict, when twelve only were sworn, their unanimity became indispensable.-Mr. Christian's note. (99) When a verdict will carry all the costs, and it is doubtful from the evidence for which A verdict, vere dictum, is either privy or public. A privy verdict is when the judge hath left or adjourned the court: and the jury, being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of court: (r) which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from the privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged. But the only effectual and legal verdict is the public verdict in which they openly declare to have found the issue for the plaintiff, or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury upon which the action is brought. 40 Sometimes, if there arises in the case any difficult matter of law, the jury, for the sake of better information, and to avoid the danger of having their verdict attainted, will find a special verdict: which is grounded on the statute of Westm. 2. 13 Edw. I. c. 30. § 2. And herein they state the naked facts, as they find them to be proved, and pray the advice of the court thereon concluding conditionally, that if upon the whole matter the court should be of opinion that the plantiff had cause of action, they then find for the plaintiff; if otherwise then for the defendant. This is entered at length on the record, and afterwards argued and determined in the court at Westminster, from whence the issue came to be tried. [378] Another method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge or the court above, on a special case stated by the counsel on both sides with regard to a matter of law: which has this advantage over a special verdict, that it is attended with much less expense, and obtains a much speedier decision: the postea (of which in the next chapter) being stayed in the hands of the officer of nisi prius, till the question is determined, and the verdict is then entered for the plaintiff or defendant, as the case may happen. But, as nothing appears upon the record but the general verdict, the parties are precluded hereby from the benefit of a writ of error, if dissatisfied with the judgment of the court or judge upon the point of law. Which makes it a thing to be wished, that a method could be devised of either lessening the expense of special verdicts, or else of entering the cause at length upon the postea. But in both these instances the jury may, if they think proper, take upon themselves to determine, at their own hazard, the complicated question of fact and law; and, without either special verdict or special, case, may find a verdict absolutely either for the plaintiff or defendant. (s) When the jury have delivered in their verdict, and it is recorded in court, r If the judge hath adjourned the court to his own lodgings, and there receives the verdict, it is a public and not a privy verdict. Litt. § 386. party it will be given, it is a common practice for the judge to recommend, and the parties to consent, that a juror should be withdrawn; and thus no verdict is given, and each party pays his own costs. Where there is a doubt at the trial whether the evidence produced by the plaintiff is sufficient to support the verdict given in his favour by the jury, the judge will give leave to apply to the court above to set aside the verdict and to enter a nonsuit; but if such liberty is not reserved at the trial, the court above can only grant the defendant a new trial, if they think the plaintiff's evidence insufficient to support his case. 6 T. R. 67. Chitty (40) A privy verdict cannot be given in treason and felony. 2 H. P. C, 300. they are then discharged. And so ends the trial by jury: a trial which, besides the other vast advantages which we have occasionally observed in its progress, is also as expeditious and cheap, as it is convenient, equitable, and certain; for a commission out of chancery, or the civil law courts, for examining witnesses in one cause will frequently last as long, and of course be full as expensive, as the trial of a hundred issues at nisi prius: and yet the fact cannot be determined by such commissioners at all: no, not till the depositions are published, and read at the hearing of the cause in court. Upon these accounts the trial by jury ever has been, and I trust [379] ever will be, looked upon as the glory of the English law. And if : it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! But this we must refer to the ensuing book of these commentaries only observing for the present, that it is the most transcendant privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages. And therefore a celebrated French writer, (t) who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury. Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interest and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our courts. It is wisely therefore ordered, that the principles and axioms of law, which are general propositions, flowing from abstracted reason, and not accommodated to times or to men, [380] should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope: the law is well known, and is the same for all ranks and degrees; it follows as a regular conclusion from the premises of fact pre-established. But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant inva 1 Montesq. Sp. L. xi. 6. L sion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial and that, when once the fact was ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates), is a step towards establishing aristocracy, the most oppressive of absolute governments. The feodal system, which for the sake of military subordination pursued an aristocratical plan in all its arrangements of property, had been intolerable in times of peace, had it not been wisely counterpoised by that privilege, so universally diffused through every part of it, the trial by the feodal peers. And in every country on the continent, as the trial by the peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and oligarchy in effect has been established, though under the shadow of regal government; unless where the miserable commons have taken shelter un der absolute monarchy, as the lighter evil of the two. And, par[381] ticularly, it is a circumstance well worthy an Englishman's ob servation, that in Sweden the trial by jury, that bulwark of northern liberty, which continued in its full vigour so lately as the middle of the last century, (u) is now fallen into disuse (w) and that there, though the legal power is in no country so closely limited, yet the liberties of the commons are extinguished, and the government is degenerated into a mere aristocracy. (x) It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain to the utmost of his power this valuable constitution in all its rights; to restore it to its ancient dignity, if at all impaired by the different value of property, or otherwise deviated from its first institution; to amend it, wherever it is defective; and, above all, to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine this best preservative of English liberty. Yet, after all, it must be owned, that the best and most effectual method to preserve and extend the trial by jury in practice, would be by endeavouring to remove all the defects, as well as to improve the advantages, incident to this mode of inquiry. If justice is not done to the entire satisfaction of the people, in this method of deciding facts, in spite of all encomiums and panegyrics on trials at the common law, they will resort in search of that justice to another tribunal though more dilatory, though more expensive, though more arbitrary in its frame and constitution. If justice is not done to the crown by the verdict of a jury, the necessities of the public revenue will call for the erection of summary tribunals. The principal de. fects seem to be, 1. The want of a complete discovery by the oath of the parties. This each of them is now entitled to have, by going through the expense and circuity of a court of equity, and therefore it is sometimes had by [382] consent, even in the courts of law. How far such a mode of compulsive examination is agreeable to the rights of mankind, and ought to be introduced in any country, may be matter of curious discussion, but n 2 Whitelocks of parl. 427. w Mod. Un. Hist. xxxiii. 22 Ibid. 17. |