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propositions fowing from reason, and not 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. But in settling and adjusting a question of fact, when entrusted 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.
Safety in Numbers. 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.
Oppressive Measures Checked. For the most powerful individual in the state will be cautious of committing any 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.
Jury System. Effect of Withdrawal. Every new tribunal, erected for the decision of facts, without the intervention of a jury, is a step towards establishing an aristocracy, the most oppressive of absolute governments.
Feudal System. An Aristocracy. The feudal system, to effect military subordination, pursued an aristocratical plan in all its arrangements of property, which would have been intolerable in times of peace, but for the privileges of trial by the feudal peers. When such trial on the continent fell into disuse, the nobles increased in power, till the state was ruptured by rival factions, and oligarchy, under the shadow of regal government established, unless where the people have taken shelter under absolute monarchy.
Sweden. This is peculiarly the case in Sweden, where trials by jury have fallen into disuse, and the government has degenerated into a mere aristocracy, in which the liberties of the people are extinguished.
Duty of a Citizen. It is the duty of every man to maintain this valuable constitution in all its rights, to restore it to its ancient dignity, if at all impaired; to amend it, wherever defective; and above all to guard jealously against the introduction of new and arbitrary methods of trial, which under plausible pretences, may imperceptibly undermine this best preservative of English liberty.
Removal of Impediments. Yet the best and most effectual method to preserve and extend the trial by jury in practice, would be to remove the defects and improve the advantages, incident to this mode of inquiry. If justice is not satisfactorily done in this method of deciding facts, the people will resort in search of that justice to another tribunal, though more dilatory, expensive and 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.
DEFECTS OF THE JURY SYSTEM.
Discovery under Oath. 1. The want of a complete discovery by the oath of the parties. This each of them now may have, by assuming the expense and circuity of a court of equity, and by consent, it may sometimes be had, even in the courts of law.
Inconsistency in the Rejection of Evidence. This mode has long been established in our courts of equity, as also the civil law courts, and it seems the height of absurdity, that in the same case, between the same parties, in examining 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 the same court should be bound by law to reject such 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 explanation read, and to found their decrees upon it. Within the same country, governed by the same laws, such a mode of inquiry should be universally admitted or rejected.
Books and Papers. 2. The want of a compulsive power for the production of books and papers belonging to the purties.
Subpoena Duces Tecum. 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 subpoena, which is then called a subpæna duces tecum. But in mercantile transactions, especially, the sight of the party's own books is frequently decisive. The entries show, what the parties understood at the time as to the transaction, though subsequent events may tempt one to give a different version.
Equity Invoked to Discover Facts. This evidence, however, may be finally obtained, and produced on a trial at law, by the circuitous course of filing a bill in equity; whereas there should be an original power for the same purpose in a court of law.
Foreign Witnesses. 3. Lack of power to examine witnesses abroad and to receive their depositions.*
Depositions. These should be taken where the witnesses reside, especially when the cause of action arises in a foreign country, to which should be added the power of examining witnesses, who are aged, or going abroad, upon interrogatories de bene esse, their testimony to be read in evidence, and in the event of the trial taking place after their death or departure, otherwise to be wholly suppressed, Both are now often effected by the mutual consent of the parties, and may be done indirectly, through the channel of a court of equity.
Opportunity for Change of Venue, 4. No opportunity is afforded for a change of venue, where desirable.
Place of Trial. The administration of justice should not only be chaste, but should not even be suspected. A jury of the vicinage has some advantages, but is often liable to strong objections, especially in small jurisdictions, or where the question in dispute is one of great local interest, or 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 may take place in an 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. To summon a jury, laboring under local prejudices, is laying a snare for their consciences, and although they may be upright, the parties will grow suspicious, and resort under various pretences to another mode of trial.
Change of Venue. When Made. The courts of law will therefore, in transitory actions, very often change the venue or
1 This difficulty has been removed by subsequent statutes.
county in which the cause is to be tried, 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.
Locality of the Trial. All over the world, actions transitory follow the person of the defendant, while 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 England.
Successive Tribunals. Formerly they were usually demanded only in the court baron of the manor, with jurors chosen from the lord's tenants. When the cause was removed to the hundred court, the lord of the hundred had a further 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 to return a competent number of hundredors. The restriction as to hundredors has gradually worn away, that of counties still remains, for many beneficial purposes, but as the king's courts have a jurisdiction coextensive with the kingdom, there can be no impropriety in sometimes departing from the general rule, when justice requires an exception.
CHAPTER XXIV.-JUDGMENT, AND ITS INCIDENTS.
Preamble. We are now to consider the transactions in a cause, next subsequent to arguing the demurrer, or the trial of the issue.
The Postea. If the issue be one of fact, and upon the trial, by any of the methods heretofore mentioned, it be found for either the plaintiff or the defendant, or specially; or if the plaintiff make default, or is non-suit; or whatever, in short, is done after the joining of the issue and awarding the trial, it is entered on record, and is called a postea. This means, that afterwards, postea, the 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 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 is thus continued by the postea.
1 This may be done in a court of law.
Entry. Next follows the judgment of the court, upon what has previously passed, both the matter of law and the matter of fact being now adjusted.
Arrest of Judgment. New Trial. Judgment however for certain causes may be suspended or arrested, for it cannot be entered till the next term after trial, and upon notice to the other party. 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 not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it, by arresting or staying the judgment. NEW TRIALS.
When Granted. The causes of thus suspending the judgment, by granting a new trial, are wholly extrinsic, arising from matter foreign to or dehors the record. Of this sort are want of notice of trial, or any flagrant misbehavior of the party prevailing towards the jury, which may have influenced their verdict, or any gross misbehavior of the jury among themselves; or if it appear by the report of the judge, certified by the court, that the verdict was without or contrary to the evidence, and the judge is dissatisfied therewith, or the jury have given exorbitant damages; or if the judge has misdirected the jury, so that they found an unjustifiable verdict. In such cases, the court awards a new or second trial. But if two juries give similar verdicts, a third trial is seldom awarded.
i A new trial is also often granted, because of after discovered material evi. derce, cr because of the conviction of a witness for perjury committed on the trial. In criminal cases, no new trial is granted in the event of an acquittal.