WHEN the jury have delivered in their verdict, and it is recorded in court, they are then difcharged. And fo ends the trial by jury a trial, which befides the other vaft advantages which we have occafionally observed in it's progress, is also as expeditious and cheap, as it is convenient, equitable, and certain; for a commiflion out of chancery, or the civil law courts, for examining witneffes in one caufe will frequently last as long, and of course be full as expensive, as the trial of a hundred iffues at nifi prius; and yet the fact cannot be determined by fuch commiffioners at all; no, not till the depofitions are published, and read at the hearing of the cause in court.

UPON thefe accounts the trial by jury ever has been, and I [ 379 ] truft ever will be, looked upon as the glory of the English law. And, if it has fo great an advantage over others in regulating civil property, how much muft that advantage be heightened, when it is applied to criminal cafes! But this we must refer to the enfuing book of these commentaries : only obferving for the prefent, 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 perfon, but by the unanimous confent of twelve of his neighbours and equals. A conftitution, that I may venture to affirm has, under providence, fecured the juft liberties of this nation for a long fucceffion of ages. And therefore a celebrated French writer, who concludes, that because Rome, Sparta, and Carthage have loft their liberties, therefore thofe of England in time muft perish, fhould have recollected that Rome, Sparta, and Carthage, at the time when their liberties were loft, were strangers to the trial by jury.

GREAT as this eulogium may feem, it is no more than this admirable conftitution, when traced to it's principles, will be found in fober reafon to deferve. The impartial administration of juftice, which fecures both our perfons and our properties, is the great end of civil fociety. But if that

VOL. III.

Montefq. Sp. L. xi, 6.

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be entirely intrufted to the magistracy, a select body of men, and thofe generally felected by the prince or such as enjoy the highest offices in the ftate, their decifions, in fpight 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 interefts 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 decifions would be wild and capricious, and a new rule of action would be every day established in our courts. It is wifely therefore ordered, that the principles and axioms of law, which are general propofitions, flowing from abftracted reason, and not 380] accommodated to times or to men, fhould be deposited in the breafts of the judges, to be occafionally applied to fuch facts as come properly afcertained before them. For here partiality can have little fcope: the law is well known, and is the fame for all ranks and degrees; it follows as a regular conclufion from the premises of fact pre-established. But in fettling and adjusting a question of fact, when intrusted to any fingle magiftrate, partiality and injustice have an ample field to range in; either by boldly afferting that to be proved which is not fo, or by more artfully fuppreffing fome circumstances, ftretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chofen by lot from among thofe of the middle rank, will be found the best investigators of truth, and the fureft guardians of public juftice. For the moft powerful individual in the ftate will be cautious of committing any flagrant invafion of another's right, when he knows that the fact of his oppreffion must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is afcertained, the law must of courfe redress it. This therefore preferves in the hands of the people that fhare, which they ought to have in the adminiftration of public juftice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decifion of facts, without the interven

tion of a jury, (whether compofed of juftices of the peace, commiffioners of the revenue, judges of a court of confcience, or any other standing magiftrates) is a ftep towards eftablishing aristocracy, the most oppreffive of abfolute governments. The feodal fyftem, which for the fake of military fubordination, purfued an aristocratical plan in all it's arrangements of property, had been intolerable in times of peace, had it not been wifely counterpoised by that privilege, fo univerfally 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 difused, so the nobles have increased in power, till the ftate has been torn to pieces by rival factions, and oligarchy in effect has been established, though under the fhadow of regal government; unlefs where the miferable commons have taken shelter under [ 381 ] abfolute monarchy, as the lighter evil of the two. And, particularly, it is a circumftance well worthy an Englishman's obfervation, that in Sweden the trial by jury, that bulwark of northern liberty, which continued in it's full vigour fo lately as the middle of the last century ", is now fallen into difufe: and that there, though the regal power is in no country fo clofely limited, yet the liberties of the commons are extinguished, and the government is degenerated into a mere aristocracy. 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 conftitution in all it's rights; to reflore it to it's antient dignity, if at all impaired by the different value of property, or otherwife deviated from it's firft inftitution; to amend it, wherever it is defective; and, above all, to guard with the most jealous circumfpection against the introduction of new and arbitrary methods of trial, which, under a variety of plaufible pretences, may in time imperceptibly undermine this beft prefervative of English liberty.

YET, after all, it must be owned, that the best and most effectual method to preferve and extend the trial by jury in

u 2 Whitelocke of parl. 427. w Mod. Un. Hist. xxxiii. 22.

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x Ibid. 17.

practice,

BOOK III. 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 fatisfaction of the people, in this method of deciding facts, in spite of all encomiums and panegyrics on trials at the common law, they will refort in fearch of that juftice to another tribunal: though more dilatory, though more expenfive, though more arbitrary in it's frame and conftitution. If juftice is not done to the crown by the verdict of a jury, the neceffities of the public revenue will call for the erection of summary tribunals. The principal defects seem to be,

1. THE want of a complete difcovery by the oath of the parties. This each of them is now entitled to have, by [382] going through the expense and circuity of a court of equity,

and therefore it is fometimes had by confent, even in the courts of law. How far fuch a mode of compulfive examination is agreeable to the rights of mankind, and ought to be introduced in any country, may be matter of curious difcuffion, 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 abfurdity, that in the fame caufe, between the fame parties, in the examination of the fame facts, a difcovery by the oath of the parties fhould be permitted on one fide of Westminster-hall, and denied on the other; or that the judges of one and the fame court fhould be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when fitting the next day as a court of equity, fhould be obliged to hear fuch examination read, and to found their decrees upon it. In fhort, within the fame country, governed by the fame laws, fuch a mode of inquiry fhould be univerfally admitted, or else universally rejected.

2. A SECOND defect is of a nature fomewhat fimilar to the firft: the want of a compulfive power for the production of books and papers belonging to the parties. In the hands of third perfons they can generally be obtained by rule of court,

or

or by adding a clause of requifition to the writ of fubpoena, which is then called a fubpoena duces tecum. But, in mercantile tranfactions efpecially, the fight of the party's own books is frequently decifive: as, the daybook of a trader, where the transaction was recently entered, as really understood at the time; though fubfequent 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 courfe of filing a bill in equity, the want of an original power for the fame purposes in the courts of law is liable to the fame obfervations as were made on the preceding article (23).

3. ANOTHER want is that of powers to examine witnesses abroad, and to receive their depofitions in writing, where the witneffes refide, and especially when the cause of action arifes [383 ] in a foreign country. To which may be added the power of examining witneffes that are aged, or going abroad, upon interrogatories de bene effe; to be read in evidence if the trial fhould be deferred till after their death or departure, but otherwife to be totally fuppreffed. Both thefe are now very frequently effected by mutual confent, if the parties are open and candid; and they may alfo be done indirectly at any time, through the channel of a court of equity: but fuch a. practice has never yet been directly adopted as the rule of a

See page 75.

(23) Where one party is in poffeffion 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 refufal copies of them will be admitted; or if no copy has been made, any parol evidence of their contents will be received. The court and jury prefume in favour of fuch evidence; becaufe, if it were not agreeable to the ftri&t truth, it would be corrected by the production of the originals. There is no difference with respect to this fpecies of evidence between criminal and civil cafes,

R. 201.

2 T.