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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 valt advantages which we have occasionally observed in it's 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 [ 379 ) 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, 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 with 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 conftitution, 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', 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 it's principles, will be found in sober reason to deserve. The impartial ad. ministration of justice, which secures both our persons and our properties, is the great end of civil society. But if that
Montesq. Sp. L. xi, 6. Vol. III.
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 spight 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 establifhed 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 [ 380 ] 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 courfe redress it. This therefore preserves in the hands of the people that share, which they ought to have in the adminiftration 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 interven, tion 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 feodal system, which for the sake of military subordination, pursued an aristocratical plan in all it's artangements 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 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 established, though under the shadow of regal government; unless where the miserable commons have taken shelter under [ 381 1 absolute monarchy, as 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 it's full vigour so lately as the middle of the last century “, is now fallen into disuse wi 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. 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 it's rights; to restore it to it's antient dignity, if at all impaired by the different value of property, or otherwise deviated from it's 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 plaufible 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 u z Whitelocke of parl. 427.
Ibid. 17. w Mod. Un. Hift. xxxiii. 22. Ee2
pradice, 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 it's 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 [ 382 ) going through the expense and circuity of a court of equity,
and therefore it is sometimes had by confent, 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 disculfion, 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 fame facts, a discovery by the oath of the parties should be permitted on one lide 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, should be obliged to hear fuch 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. 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 fubpoena, which is then called a subpoena duces tecum. But, in mercantile transactions especially, the fight of the party's own books is frequently decisive : as, the daybook 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 (23),
3. Another want is that of powers to examine witnesses abroad, and to receive their depositions in writing, where the witnesses reside, and especially when the cause of action arises ( 383 ) in a foreign country. To which may be added the power of examining witnefles that are aged, or going abroad, upon interrogatorieş de bene effe; to be read in evidence if the trial should be deferred till after their death or departure, but otherwise to be totally suppreled. 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 adoptedy as the rule of a
y See page 75.
(23) Where one party is in possession of papers or any species of written erider.ce material to the osher, 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, any parol evidence of their contents will be received. The court and jury pre. sume 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.