THE exertion of these fuperintendent powers of the king's courts, in fetting afide the verdict of a jury and granting a new trial, on account of misbehaviour in the jurors, is of a date extremely antient, There are inftances, in the year books of the reigns of Edward III, Henry IV, and Henry VII, of judgments being stayed (even after a trial at bar) and new venire's awarded, because the jury had eat and drank with- [388] out confent of the judge, and because the plaintiff had privately given a paper to a juryman before he was fworn. And upon thefe the chief justice, Glynn, in 1655, grounded the first precedent that is reported in our books for granting a new trial upon account of exceffive damages given by the jury; apprehending with reafon, that notorious partiality in the jurors was a principal fpecies of mifbehaviour. A few years before, a practice took rife in the common pleas', of granting new trials upon the mere certificate of the judge, (un e 24 Edw. III. 24. Bro. Abr. t. verdite. 17. f 11 Hen. IV. 18. Bro. Abr. t. enquest. 75. g 14 Hen. VII. 1 Bro. Abr. t. verdite 18. b Styl. 466. i Ibid. 138. action for adultery, are a fufficient ground to grant a new trial. 5 T. R. 257. The court will grant any number of new trials in the fame action, if the jury find verdicts contrary to the established law. A new trial may be granted on account of the misconduct of the jury, as if they have referred to chance to determine the party for whom the verdict was given. But the courts will not hear any affidavit of fuch conduct from the jury themfelves. I T. R. 11. It is generally faid, that there cannot be a new trial in penal actions and criminal profecutions, when there is a verdict for the defendant. The principle of this being the great favour which the law fhews to the liberty of the fubject. But the rule does not extend to informations in the nature of quo warranto; as the object of thefe is now in general to try a right and not to punish an offence. 2 T. R. 484. Nor does it extend to an action upon a penal ftatute, in which a verdict is given for the defendant in consequence of the mifdirection of the judge. 4 T. R. 753. fortified fortified by any report of the evidence) that the verdict had paffed against his opinion; though chief juftice Rolle (who allowed of new trials in cafe of mifbehaviour, furprize, or fraud, or if the verdict was notoriously contrary to evidence *) refufed to adopt that practice in the court of king's-bench. And at that time it was clearly held for law, that whatever matter was of force to avoid a verdict, ought to be returned upon the poftea, and not merely furmifed by the court; left pofterity thould wonder why a new venire was awarded, without any fufficient reafon appearing upon the record. But very early in the reign of Charles the fecond new trials were granted upon affidavits "; and the former ftrictnefs of the courts of law, in refpect of new trials, having driven many parties into courts of equity to be relieved from oppreffive verdicts, they are now more liberal in granting them: the maxim at prefent adopted being this, that (in all cafes of moment) where juftice is not done upon one trial, the injured party is entitled to another ", FORMERLY the principal remedy, for reverfal of a verdict unduly given, was by writ of attaint; of which we shall speak in the next chapter, and which is at least as old as the inflitution of the grand aflife by Henry II, in lieu of the Norman trial by battel. Such a fanction was probably thought [389] neceffary, when, inftead of appealing to providence for the decifion of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our ancestors faw, that a jury might give an erroneous verdict; and, if they did, that it ought not finally to conclude the queftion in the first inftance but the remedy, which they provided, fhews the ignorance and ferocity of the times, and the fimplicity of the points then usually litigated in the courts of justice, They fuppofed that, the law being told to the jury by the judge, the proof of fact must be always fo clear, that, if they found a wrong verdict, they must be wilfully and corruptly perjured. Whereas a juror may find a juft verdict from unrighteous motives, which can only be known to the great fearcher of hearts: and he may, on the contrary, find a verdict very manifeftly wrong, without any bad motive at all; from inexperience in bufinefs, incapacity, mifapprehenfion, inattention to circumftances, and a thousand other innocent caufes. But fuch a remedy as this laid the injured party under an infuperable hardship, by making a conviction of the jurors for perjury the condition of his redress. THE judges faw this; and therefore very early, even upon writs of affife, they devised a great variety of distinctions; by which an attaint might be avoided, and the verdict fet to rights in a more temperate and difpaflionate method. Thus if exceffive damages were given, they were moderated by the difcretion of the juftices 9. And if, either in that, or in any other inftance, juftice was not completely done, through the error of either the judge or the recognitors, it was remedied by certificate of affe, which was neither more nor less than a fecond trial of the fame caufe by the fame jury'. And, in mixed or perfonal actions, as trespass and the like, (wherein no attaint originally lay) if the jury gave a wrong verdict, the judges did not think themselves warranted thereby to pronounce an iniquitous judgment; but amended it, if posfible, by fubfequent inquiries of their own; and, if that could not be, they referred it to another examination. [390 ] When afterwards attaints, by feveral ftatutes, were more univerfally extended, the judges frequently, even for the mifbehaviour of jurymen, instead of profecuting the writ of attaint, awarded a fecond trial: and subsequent resolutions, for more than a century paft, have fo amplified the benefit of this remedy, that the attaint is now as obfolete as the trial by p Bract. 1. 4. tr. 5. c. 4. 4 Ibid. tr. 1. c. 19. § 8. Ibid. tr. 5. c. 6. §2. F. N. B. 181. 2 Inft. 415. • Si juratores erraverint, et jufticiarii fecundum eorum diētum judicium pronun tiaverint, falfam faciunt pronuntiationem ; battel BOOK III. battel which it fucceeded: and we shall probably fee the revival of the one as foon as the revival of the other. And here I cannot but again admire the wisdom of fuffering time to bring to perfection new remedies, more easy and beneficial to the fubject; which, by degrees, from the expe rience and approbation of the people, fuperfede the neces fity or defire of ufing or continuing the old. If every verdict was final in the first inftance, it would tend to destroy this valuable method of trial, and would drive away all caufes of confequence to be decided according to the forms of the imperial law, upon depofitions in writ ing; which might be reviewed in a course of appeal. Causes of great importance, titles to land, and large questions of commercial property, come often to be tried by a jury, merely upon the general iffue: where the facts are complicated and intricate, the evidence of great length and variety, and fometimes contradicting each other; and where the nature of the dispute very frequently introduces nice questions and subtilties of law. Either party may be furprized by a piece of evidence, which (had he known of it's production) he could have explained or anfwered; or may be puzzled by a legal doubt, which a little recollection would have folved. In the hurry of a trial the ableft judge may mistake the law, and mifdirect the jury: he may not be able fo to state and range the evidence as to lay it clearly before them, nor to take off the artful impreffions which have been made on their minds by learned and experienced advocates. The jury are to give their [391] opinion inftanter; that is, before they separate, eat, or drink. And under thefe circumstances the most intelligent and best intentioned men may bring in a verdict, which they themfelves upon cool deliberation would wish to reverse. NEXT to doing right, the great object in the administration of public justice should be to give public fatisfaction. If the verdict be liable to many objections and doubts in the opinion of his counsel, or even in the opinion of by-standers, no party would go away fatisfied unless he had a profpect of reviewing it. Such doubts would with him be decifive: hé would arraign the determination as manifeftly unjust; and abhor a tribunal which he imagined had done him an injury without a poffibility of redrefs. GRANTING a new trial, under proper regulations, cures all these inconveniences, and at the fame time preferves entire and renders perfect that moft excellent method of decifion, which is the glory of the English law. A new trial is a rehearing of the cause before another jury; but with as little prejudice to either party, as if it had never been heard before. No advantage is taken of the former verdict on the one fide, or the rule of court for awarding fuch fecond trial on the other: and the fubfequent verdict, though contrary to the first, imports no title of blame upon the former jury; who, had they poffeffed the fame lights and advantages; would probably have altered their own opinion. The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more mafter of the fubject; and nothing is now tried but the real merits of the cafe. A SUFFICIENT ground muft however be laid before the court, to fatisfy them that it is neceffary to juftice that the caufe fhould be farther confidered. If the matter be fuch, as did not or could not appear to the judge who prefided at nifi prius, it is disclosed to the court by affidavit: if it arises from what paffed at the trial, it is taken from the judge's information; who ufually makes a special and minute report of the evidence. Counfel are heard on both fides to impeach or establish the verdict, and the court give their reasons at [392] large why a new examination ought or ought not to be allowed. The true import of the evidence is duly weighed, falfe colours are taken off, and all points of law which arose at the trial are upon full deliberation clearly explained and fettled. NOR |