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mankind, is much more conducive to the clearing up of truth (d), than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law; where a witness may frequently depose that in private, which he will be ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language ; but he is here at liberty to correct and explain his meaning, is misunderstood, which he can never do after a written deposi. tion is once taken. Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sist out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge, during the examination, a matter of small importance : for, besides the respect and awe with which his presence will naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness ; in which points all persons must appear alike, when their depositions are reduced to writing, and read to the judge, in the absence of those who made them; and yet as much may be frequently col
lected from the manner in which the evidence is delivered, as from [*374] the matter of *it. These are a few of the advantages attending
this, the English way of giving testimony, ore tenus. Which was also indeed familiar among the ancient Romans, as may be collected from Quintilian (e); who lays down very good instructions for examining and cross-examining witnesses viva voce. And this, or somewhat like it, was continued as low as the time of Hadrian (f): but the civil law, as it is now modelled, rejects all public examination of witnesses.
As to such evidence as the jury may have in their own consciences, by their private knowledge of facts, it was an ancient doctrine, that this had 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 construeil (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 verdiét 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 com(d) Hale's Hist. C. L. 254, 5, 6.
attulerint, an ad ea quae interrogaveras ertempore le) Institut. Orat. 1. 5, c. 7.
verisimilia responderint." (Ff. 22. 5. 3.), See his epistle to Varus, the legate or judge of Cilicia : “ tu magis scire potes, quanta fides sit habenda testibus ; qui, et cujus dignitatis, et cujus (h) Vaugh. 148, 149. aestimationis sint; et, qui simpliciler visi sint di- (i) Bract. l. 4, tr. 1, c. 19, 63. Flet. I. 4, c. 9, 92 cere ; utrum unum eundemque meditatum sermonem
(75) See Hov, n, (75) at the end of the Val. B. III.
(g) Yearbook, 14 Hen. VII. 29. Plowd. 12. Hob 227. 1 Lev. 87.
mon jurors ; that they might escape the heavy 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 additional proof the law presumed they were privately acquainted, though it did not appear in *court. But this doctrine [*375] was again gradually 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, the 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 remarks 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 ocher constitutions of Europe, and in matters of greater concern. the golden bull of the empire (?), if, after the congress is opened, the electors delay the election of a king of the Romans for 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 80 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 gone *from the bar; or if they receive any fresh evi. [*376] dence 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 imprisoned (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) (36). This necessity of a total unanimity seems to be peculiar to our own constitution (0); 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) (37). (k) Styl. 233. 1 Sid. 133.
(n) Lib. Ass. fol. 40, pl. 11.
(p) Stiern. 2. I, c. 4. (36) Pending a trial of long duration the the trials referred to hy the authors there cited, jury may be adjourned, and in civil cases may and even the judicium parium, mentioned in separate ; but after the judge has summed up the celerated chapter of magna charta, are they cannot separate. 2 Bar. & Ald. 462. trials which were something similar to that by
(37) The learned Judge has displayed much a jury, rather than instances of a trial by jury erudition in the beginning of this chapter, to according to its present established form. The prove the antiquity of the trial by jury; but judicium parium seems strictly the judgment
(7) ch. 2.
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 (9), 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 a 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 [*377] same suit *again for the same cause of action ; but after a verdict
had, 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 (38).
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 ver
(9) Page 275. See also Book IV. 379.
of a subject's equals in the feudal courts of er number; yet there can be no conviction un. the king and barons. And so little appears to less the greater number consists at least of be ascertained by antiquarians respecting the twelve. 3 Inst. 30. Kelyng. 56. Moore, 622. introduction of the trial in criminal cases by Under a commission of lunacy the jury was two juries, that although it is one of the most seventeen, but twelve joined in the verdict. important, it is certainly one of the most ob. 7 Ves. Jun. 450. A jury upon a writ of inqui. scure and inexplicable parts of the law of ry may be more than twelve. In all these England.
cases if twelve only appeared, it followed as a The unanimity of twelve men, so repugnant necessary consequence, that to act with effect to all experience of human conduct, passions, they must have been unanimous. and understandings, could hardly in any age Hence this may be suggested as a conjechave been introduced into practice by a delibe. ture respecting the origin of the unanimity of rate act of the legislature.
juries, that, as less than twelve, if twelve or But that the life, and perhaps the liberty and more were present, could pronounce no effecproperty of a subject, should not be affected tive verdict, when twelve only were sworn, by the concurring judgment of a less number their unanimity became indispensable. than twelve, where more were present, was a (38) When a verdict will carry all the costs, law founded in reason and caution; and seems and it is doubtsul from the evidence for which to be transmitted to us by the common law, or party it will be given, it is a common practice from immemorial antiquity. The grand as. for the judge to recommend, and the parties to sise might have consisted of more than twelve, consent, that a juror should be wiihdrawn; yet the verdict must have been given by and thus no verdict is given, and each party twelve or more ; and if twelve did not agree, pays his own costs. the assise was afforced, that is, others were Where there is a doubt at the trial whether added till twelve did concur. See 1 Reeve's the evidence produced by the plaintiff is suffHist. of Eng. Law, 241. 480. This was a ma- cient to support the verdict given in his favour jority and not unanimity. A grand jury may by the jury, the judge will give leave to apply consist of any number from twelve to twenty. to the court above to set aside the verdict and three inclusive, but a presentment ought not to enter a nonsuit; but if such liberty is not to be made by less than twelve. 2 Hale P. reserved at the trial, the court above can only C. 161. The same is true also of an inquisi- grant the defendant a new trial, if they think tion before the coroner. In the high court of the plaintiff's evidence insufficient to support parliament, and the court of the lord high his case. 6 T. R. 67. steward, a peer may be convicted by the great.
dict 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 (39). 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.
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. 9 2. And herein they state the naked facts, as they find them to be proved,76 and pray the advice of the court thereon ; concluding conditionally, that if upon the whole matter the court should be of opinion that the plaintiff 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.
* Another method of finding a species of special verdict, is when [*378] 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 case77 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 : and 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 speial case, may find verdict absolutely either for the plaintiff or defendant (s).
When the jury have delivered in their verdict, and it is recorded in court, 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.
(") If the judge hath adjourned the court to his public and not a privy verdict. own lodgings, and there receives the verdict, it is a
(8) Litt. 9 386.
(39) A privy verdict cannot be given in treason and felony. 2 H. P. C. 300. VOL. II. (76) See Hov, D. (76) at the end of the Vol. B. III. (77) Ibid. (77) B. III.
["379) * Upon these accounts the trial by jury ever has been, and I
trust 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, low 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 transcendent 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 (1), 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 interests and good of the many.
On the other hand, if the power of judicature were placed at random in the hands of the multitude, iheir 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, [*380] flowing from abstracted reason, and not *accommodated to times
or to men, 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 powersul individual in the state will be cautious of committing any flagrant invasion 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 is 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
(t) Montesq. Sp. L. xi. 6.