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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, 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 ever *379] will be, looked upon as the glory of the English law. And if it has so groat 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 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,(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 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, 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 *380] propositions, 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 powerful 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 interventior

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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,) it 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 tria. oy 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 esta blished, though under the shadow of regal government; *unless where the miserable commons have taken shelter under absolute monarchy, as [*381 the lighter evil of the two. And, particularly, it is a circumstance well worthy an Englishman's observation, 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 regal 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 antient 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 defects 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 con[*382 sent, even in the courts of law. How far such a mode of compulsive examina tion is agreeable to the rights of mankind, and ought to be introduced in any country, may be matter of curious discussion, but is foreign to our present inquiries. It has long been introduced and established in our courts of equity, not to mention the civil-law courts; and it seems the height of judicial absurdity, that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster hall, and denied on the other; or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it. In short, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted, or else universally rejected."

(*) 2 Whitelocke of Parl. 427.

() Mod. Un. Hist. xxxiii. 22.

(=) Ibid. 17.

"The Common-Law Procedure Act, 1854, now, however, enables either party, by leave of the court or a judge, to interrogate his opponent upon any matter as to which discovery may be sought, and to require such party to answer the questions within ten days, by affidavit sworn and filed in court in the ordinary way Any person omitting, without

2. A second defect is of a nature somewhat similar to the first: the want of a compulsive power for the production of books and papers belonging to the parties. In the hands of third persons they can generally be obtained by rule of court, or by adding a clause of requisition to the writ of subpoena, which is then called a subpoena duces tecum. But, in mercantile transactions especially, the sight of the party's own books is frequently decisive; as the day-book of a trader, where the transaction was recently entered, as really understood at the time; though subsequent events may tempt him to give it a different colour. And, as this evidence may be finally obtained, and produced on a trial at law, by the circuitous course of filing a bill in equity, the want of an original power for the same purposes in the courts of law is liable to the same observations an were made on the preceding article.


3. *Another want is that of powers to examine witnesses abroad, and *383] to receive their depositions in writing, where the witnesses reside, and especially when the cause of action arises, in a foreign country. To which may be added the power of examining witnesses that are aged, or going abroad, upon interrogatories de bene esse; to be read in evidence if the trial should be deferred tili after their death or departure, but otherwise to be totally suppressed. Both these are now very frequently effected by mutual consent, if the parties are open and candid; and they may also be done indirectly at any time, through the channel of a court of equity; but such a practice has never yet been directly adopted(y) as the rule of a court of law. Yet where the cause of action arises in India, and a suit is brought thereupon in any of the king's courts at Westminster, the court may issue a commission to examine witnesses upon the spot and transmit the depositions to England. (2)

4. The administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neighbourhood has in some respects a great advantage, but is often liable to strong objections; especially in small jurisdictions, as in cities which are counties of themselves, and where such assizes are but seldom holden; or where the question in dispute has an extensive

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just cause, to answer all questions as to which a discovery is sought is guilty of a contempt, and liable to be proceeded against accordingly.-KERR.

Where one party is in possession of papers or any species of written evidence material to the other, if notice is given him to produce them at the trial, upon his refusal copies of them will be admitted; or, if no copy has been made, parol evidence of their contents will be received. The court and jury presume in favour of such evidence, because, if it were not agreeable to the strict truth, it would be corrected by the production of the originals. There is no difference with respect to this species of evidence between criminal and civil cases. 2 T. R. 201.-CHRISTIAN.

The statute 14 & 15 Vict. c. 99, s. 6, enacts that, on any action or other legal proceeding in the superior courts of common law, the court or any judge thereof may, on application by either of the litigants, compel the opposite party to allow the party applying to inspect all documents in his custody or under his control relating to such action or other legal proceeding, in all cases in which a discovery may be obtained by filing a bill or other proceeding in a court of equity.-KERR.

36 But now, by stat. 1 W. IV. c. 22, the courts of law at Westminster are empowered, in any action depending in such courts, upon the application of any of the parties to such action, to order the examination, upon oath, upon interrogatories, or otherwise, of any witnesses, and, if any of such witnesses are out of the jurisdiction of the court when the action is pending, to order a commission to issue for their examination, and to give all such directions touching the time, place, and manner of the examination as may appear reasonable and just; but no examination or deposition taken by virtue of the act can be read in evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge that the examinant 8 then beyond the jurisdiction of the court, or dead, or unable, from permanent sickess, to attend the trial. And now, by stat. 6 & 7 Vict. c. 82, s. 5, power is given to compel the attendance of persons to be examined under any commission.-STEWART.

37 A court can compel the plaintiff to consent to have a witness going abroad examined upon interrogatories, or to have in absent witness examined under a commission, by the power the judges have of pu ting off the trial; but they have no control in these instances over the defendant.-CHRISTIAN.

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local tendency; where a cry has been raised, and the passions of the multituae been inflamed; or where one of the parties is popular, and the other a stranger or obnoxious. It is true that, if a whole county is interested in the question to be tried, the trial by the rule of law(a) must be in some adjoining county; but, as there may be a strict interest so minute as not to occasion any bias, so there may be the strongest bias without any pecuniary interest. In all these cases, to summon a jury, labouring under local prejudices, is laying a snare for their consciences; and, though they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and resort under various pretences to another mode of trial. The courts of law will therefore, in transitory actions, very often change the venue, or county wherein the cause is to be *tried:(b) but in local actions, though they sometimes do it indirectly and by mutual consent, yet to effect it directly and absolutely, the parties [*384 are driven to a court of equity; where, upon making out a proper case, it is done upon the ground of being necessary to a fair, impartial, and satisfactory trial.(c) The locality of trial required by the common law seems a consequence of the antient locality of jurisdiction. All over the world, actions transitory follow the person of the defendant, territorial suits must be discussed in the territorial tribunal. I may sue a Frenchman here for a debt contracted abroad; but lands lying in France must be sued for there, and English lands must be sued for in the kingdom of England Formerly they were usually demanded only in the court-baron of the manor, where the steward could summon no jurors but such as were the tenants of the lord. When the cause was removed to the hundred court, (as seems to have been the course in the Saxon times,)(d) the lord of the hundred had a further power, to convoke the inhabitants of different vills to form a jury; observing probably always to intermix among them a stated number of tenants of that manor wherein the dispute arose. When afterwards it came to the county-court, the great tribunal of Saxon justice, the sheriff had wider authority, and could impanel a jury from the men of his county at large: but was obliged (as a mark of the original locality of the cause) to return a competent number of hundredors; omitting the inferior distinction, if indeed it ever existed. And when at length, after the conquest, the king's justiciars drew the cognizance of the cause from the county-court, though they could have summoned a jury from any part of the kingdom, yet they chose to take the cause as they found it, with all its local appendages; triable by a stated number of hundredors, mixed with other freeholders of the county. The restriction as to hundredors hath gradually worn away, and at length entirely vanished; (e) that of *counties still remains, for many beneficial purposes: but, as the king's courts have a jurisdiction coextensive with [*385 the kingdom, there surely can be no impropriety in sometimes departing from the general rule, when the great ends of justice warrant and require an exception.

I have ventured to mark these defects, that the just panegyric, which I have given on the trial by jury, might appear to be the result of sober reflection, and not of enthusiasm or prejudice. But should they, after all, continue unremedied and unsupplied, still (with all its imperfections) I trust that this mode of decision will be found the best criterion, for investigating the truth of facts, that was ever established in any country.

Stra. 177.

See page 294.

() This, among a number of other instances, was the case of the issues directed by the house of lords in the cause be

tween the duke of Devonshire and the miners of the county
of Derby, A.D. 1762.

(d) LL. Edw. Conf. c 32. Wilk. 203.
() See page 360.

This may now be done in a court of law. Tidd, 8th ed. 655.-CHITTY.


*386] issue.



*IN he present chapter we are to consider the transactions in a cause, next immediately subsequent to arguing the demurrer, or trial of the

If the issue be an issue of fact, and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or de fendant, or specially; or if the plaintiff makes default, or is non-suit; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a postea. (a) The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attor neys at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff, after the jury sworn, made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea.1

Next follows, sixthly, the judgment of the court upon what has previously passed; both the matter of law and matter of fact being now fully weighed

and adjusted. Judgment *may, however, for certain causes be suspended, *387] or finally arrested: for it cannot be entered till the next term after trial

had, and that upon notice to the other party. So that if any defect of justice happened at the trial, by surprise, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the complaint was either not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it by arresting or staying the judgment.

() Append. No. II. 6.

As to the postea in general, see Tidd, 8th ed. 931 to 934. The verdict is entered on the back of the record of nisi prius, which entry, from the Latin word it began with, is called the postea. When the cause is tried in the King's Bench in London or Middlesex, the record is delivered to the attorney of the successful party, and he afterwards endorses the postea from the associate's minute on the panel; but in country causes the associate keeps the record till the next term, and then delivers it, with the postea endorsed, to the party obtaining the verdict. The practice is in some respects different in the Common Pleas, where in town causes also the record remains with the associate till the quarto die post of the return of the habeas corpora juratorum, who endorses the postea upon the record; but, by a recent order, it is not to be delivered till the morning of the fifth day of the term. See 1 Brod. & B. 298. 3 Moore, 643. If the postea be lost, a new one may, in some cases, be made out from the record above and the associate's notes, (2 Stra. 1264;) if wrong, it may be amended by the plea-roll, (1 Ld. Raym. 133,) by the memory or notes of the judge, (Cro. Car. 338. Bull. N. P. 320. 2 Stra. 1197. 6 T. R. 694 1 Bar. & Ald. 161. 2 Cha. R. 352,) or the notes of the associate or clerk of assize. 2 Chitt. R. 352. 1 Bos. & Pul. 329. The application to amend by the judge's notes must be made to the judge who tried the cause. 1 Chitt. R. 283. The court will not alter a verdict unless it appear on the face of it that the alteration would be according to the intention of the jury, (1 H. Bla. 78;) but not after a considerable lapse of time to increase damages, although the jury join in an affidavit stating their intention to have been to give the increased sum, and thought they had in effect done so. 2 T. R. 281; sed vide 1 Burr. 383, where a verdict was rectified which had been mistakenly delivered by the foreman. Where the jury had found the treble value in an action of debt on the statute for not setting out tithes, on a writ of inquiry, the inquisition was amended by the insertion of nominal damages. 1 Bingh. R. 182. In an action by one defendant in assumpsit against a co-defendant for contribution, the postea is evidence to prove the amount of the damages. 2 Stark. R. 364. See 9 Price, 359. Tidd, 8th ed. 932, 933. The production of the postea is not sufficient evidence of a judgment: a copy of the judgment founded thereon must also be produced. Bull. N. P. 234. Willes, 367. But the nisi prius record, with the postea endorsed, is sufficient to prove that the cause came on to be tried, (1 Stra 162. Willes, 368,) or the day of trial. 6 Esp. R. 80, 83. See 9 Price, 359. Tidd, 8th ea 977.--CHITTY.

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