(when attaints came to be extended to trials by jury, as well as to recognitions of afflife) was alfo applied to the cafe of common jurors; that they might efcape the heavy penalties of the attaint, in cafe they could fhew 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 375 prefumed they were privately acquainted, though it did not appear in court. But this doctrine was again gradually exploded, when attaints began to be difused, and new trials introduced in their ftead. For it is quite incompatible with the grounds, upon which fuch 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 feems to have been first introduced, which now univerfally obtains, that if a juror knows any thing of the matter in iffue, he may be fworn as a witnefs, and give his evidence publicly in court. WHEN the evidence is gone through on both fides, the judge in the prefence of the parties, the counfel, and all others, fums up the whole to the jury; omitting all fuperfluous circumstances, obferving wherein the main question and principal iffue lies, ftating what evidence has been given to fupport it, with fuch remarks as he thinks neceffary for their direction, and giving them his opinion in matters of law arifing upon that evidence. THE jury, after the proofs are fummed up, unlefs the cafe be very clear, withdraw from the bar to confider of their verdict and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unlefs by permiffion of the judge, till they are all unanimously agreed. A method of accelerating unanimity not wholly unknown in other conftitutions of Europe, and in matters of greater concern. For by the golden bulle of the empire', if, after the congrefs is opened, the electors delay the election of a king of the Romans for thirty days, they shall be fed only 375 with bread and water, till the fame is accomplished. But if our juries eat or drink at all, or have any eatables about them, without confent of the court, and before verdict, it is fineable; and if they do fo at his charge for whom they afterwards find, it will fet afide 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 evidence in pri- 376] vate; or if to prevent disputes they caft lots for whom they fhall find; any of thefe circumftances 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 ", the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart". This neceffity of a total unanimity seems to be peculiar to our own conftitution; or, at least, in the nembda or jury of the antient Goths, there was required (even in criminal cafes) only the confent of the major part; and in cafe of an equality, the defendant was held to be acquitted P (20). m Mirr. c. 4. 24. n Lib. Aff. fol. 40. pl. 11. • See Barrington on the ftatutes 19, 20, 21. p Stiern. 1. 1. c. 4. (20) The learned Judge has difplayed much learning 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 fimilar to that by a jury, rather than inftances of a trial by jury according to it's prefest eftablished form. The judicium parium seems strictly the judgment of a fubject's equals in the feudal courts of the king and barons. And fo little appears to be afçertained by antiquarians, refpecting the introduction of the trial in criminal cafes by two juries, that, although it is one of the most important, yet it is certainly one of the moft obfcure and inexplicable parts of the law of England. The unanimity of twelve men, fo repugnant to all experience of human conduct, paffions, and understandings, could hardly in any age have been introduced into practice by a deliberate act of the legislature. But 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 counfel, in order to answer the amercement to which by the old law he is liable, as has been formerly mentioned, in cafe he fails in his fuit, 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 mifericordia domini regis pro falfo clamore fuo. The amercement is difufed, but the form ftill continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be nonfuit, non fequitur clamorem fuum. Therefore it is ufual for a plaintiff, when he or his counfel perceives that he has not given evidence fufficient to maintain his iffue, to be voluntarily 4 Page 275. See alfo Vol. IV. 379. But that the life, and perhaps the liberty and property of a fubject, fhould not be affected by the concurring judgment of a leís number than twelve, where more were prefent, was a law founded in reafon and caution; and feems to be tranfmitted to us by the common law, or from immemorial antiquity. The grand affize might have confifted of more than twelve, yet the verdict must have been given by twelve or more ; and if twelve did not agree, the affize was afforced, that is, others were added till twelve did concur. See Reeves's Hift. of Eng. Law. 241. 480. This was a majority and not unanimity. A grand jury may confift of any number from twelve to twenty-three inclufive, but a prefentment ought not to be made by less than twelve. 2 Hale P. C. 161. In the high court of parliament, 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 confifts at least of twelve. 3 Inft. 30. Kelyng. 56. Moore, 622. Hence in all these cafes if twelve only appeared, it followed as a neceffary confequence, that to act with effect they must have been unanimous. Hence this may be fuggefted as a conjecture refpecting the origin of the unanimity of juries, that, as lefs than twelve, if twelve or more were prefent, could pronounce no effective verdict, when twelve only were fworn, their unanimity became indif penfable. nonfuited, 376 nonfuited, or withdraw himfelf: whereupon the crier is ordered to call the plaintiff, and if neither he, nor any body for him, appears, he is nonfuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reafon of this practice is, that a nonfuit is more eligible for the plaintiff, than a verdict against him: for after a nonfuit, which is only a default, he may commence the fame fuit again for the fame cause of action; but after a verdict had, [377] and judgment confequent thereupon, he is for ever barred from attacking the defendant upon the fame ground of complaint. But, in case the plaintiff appears, the jury by their foreman deliver in their verdict (21). 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: which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they pleafe, vary from their 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 feldom indulged (22). But the only effectual and legal verdict is the public verdict: in which they openly declare to have found the iffue for the plaintiff, or for the defendant; and if for the plaintiff, they affefs the damages alfo fuftained If the judge hath adjourned the court to his own lodgings, and there receives the verdict, it is a public and (21) When a verdict will carry all the cofts, and it is doubtful from the evidence for which party it will be given, it is a common practice for the judge to recommend, and the parties to confent, that a juror should be withdrawn; and thus no verdict is given, and each party pays his own cofts. (22) A privy verdict cannot be given in treason and felony, 2 H. P. C. .300. by [378 ] by the plaintiff, in confequence of the injury upon which the action is brought. SOMETIMES, if there arifes in the cafe any difficult matter of law, the jury for the fake of better information, and to avoid the danger of having their verdict attainted, will find a fpecial verdict; which is grounded on the ftatute 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 fhall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwife, 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 iffue came to be tried. ANOTHER method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but fubject nevertheless to the opinion of the judge or the court above, on a special cafe ftated by the counfel on both fides with regard to a matter of law: which has this advantage over a fpecial verdict, that it is attended with much lefs expenfe, and obtains a much speedier decifion; the poftea (of which in the next chapter) being stayed in the hands of the officer of nifi prius, till the question is determined, and the verdict is then entered for the plaintiff or defendant as the cafe 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 diffatisfied with the judgment of the court or judge upon the point of law. Which makes it a thing to be wifhed, that a method could be devised of either leffening the expenfe of fpecial verdicts, or else of entering the cafe at length upon the poftea. But in both these inftances the jury may, if they think proper, take upon themfelves to determine, at their own hazard, the complicated queftion of fact and law; and without either special verdict or fpecial cafe, may find a verdict abfolutely either for the plaintiff or defendant. |