cluding 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.

[ *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 of the court above, on a special case (34) 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, 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 great an advantage over others in regulating civil property, how much must that advan tage 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

(34) [And since the statute 3 and 4 Wm. IV, c. 42, the parties may state a special case for the opinion of the court, without the intervention of a jury.]

236

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 propositions, flowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts of the judges, to be [ *380 ] 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 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 feudal 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 feudal 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 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 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;

(u) 2 Whitelock of Parl. 427.

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

(x) I bid. 17.

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

[*382] of a court of equity, and therefore it is sometimes had by 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 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. (35)

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 subpæna, which is then called a subpæna 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 as were made on the preceding article. (36)

[*383 ] *3. Another want is that of power to examine witnesses abroad, and 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 till 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

(35) [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 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.]

(36) [When 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 favor 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.]

[The statute 14 and 15 Vic. c. 99, § 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.]

adopted (y) as the rule of a court of law. (37) 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. (z)

4. The administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neigbourhood 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 such where assizes are but seldom holden; or where the question in dispute has an extensive local tendency; where a cry has been raised, and the passions of the multitude 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, laboring 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 [*384] 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 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) (38)

The locality of trial required by the common law seems a consequence of the ancient 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 hundredcourt (as seems to have been the course in the Saxon times,) (d) the lord of the hundred had a farther 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 [*385] 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 pur

(z) Stat. 13 Geo. III, c. 63.

(a) Stra. 177.

(y) Sce page 75. (b) See page 294. (c) This, among a number of other instances, was the case of the issues directed by the house of lords in the cause between the duke of Devonshire and the miners of the county of Derby, A. D. 1762. (d) LL. Edw. Conf. c. 32. Wilk. 203. (e) See page 360.

(37) But now by statute 1 Wm. IV, c. 22, the superior courts of law are empowered, upon the application of any party to an action therein, to order the examination of any witnesses upon interrogatories, and, if the witnesses are out of the jurisdiction of the court, a commission may be issued for the purpose. But the examination is not to be read at the trial, without the consent of the opposite party, unless it shall appear that the witness is then beyond the jurisdiction of the court, or dead, or unable from permanent sickness to attend the trial. (38] [This may now be done in a court of law. Tidd, 8th ed. 655.]

poses: but, as the king's courts have a jurisdiction co-extensive with 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. (39)

CHAPTER XXIV.

OF JUDGMENT AND ITS INCIDENTS.

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

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 defendant, or specially; or if the plaintiff makes default, or is nonsuit; 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 attorneys 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.

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 [*387] adjusted. Judgment *may however for certain causes be suspended, 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

(a) Appendix No. II, § 4.

(39) So important has the right of trial by jury been regarded in the United States, that not only the national constitution, but the constitution of each of the states, contains limitations, more or less broad, upon the power of the legislature to deprive parties of it. The national constitution provides "that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed," and that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." Const. U. S. 6th and 7th amendments. The restrictions in the state constitutions vary greatly, and they generally permit parties to waive the right. Some of them also allow a jury of less number than twelve. It is well settled, however, that where the constitution preserves the right of trial by jury in general terms, it preserves it for all those cases in which it was demandable of right at the common law. Crandall v. James, 6 R. I. 104; Dane Co. v. Dunning, 20 Wis. 210; Tabor v. Cook, 15 Mich. 322; In re Kemp, 16 Wis. 359; Byers v. Commonwealth, 42 Penn. St. 89; Haines v. Levin, 51 Penn. St. 412. And the right cannot be made to depend upon any condition. Green v. Briggs, 1 Curt. C. C. 311. And the number of the jury must be twelve, and in criminal cases, at least, the party cannot waive the right, or bind himself by consent to be tried by a less number. Work v. State, 2 Ohio, N. S. 296; Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. 561; Hill v. People, 16 Mich. 351.