Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 122

They began to devise rules under which a new trial could be ordered.¹ The mediaeval law on the subject of new trials was not very promising. The only early grounds which they admitted were misconduct of the jurymen, such as eating and drinking before returning their verdict, and even then the verdict was not necessarily set aside.² Where damages or costs awarded by a jury were manifestly too high or too low, the court would sometimes fix its own figure, in the fifteenth and sixteenth centuries, without ordering a new trial or a new inquiry of damages.³

The amount of discretion which jurors might exercise varied with the form of action. Thus in an action on the case in 1615 to recover damages which by covenant had been fixed at a certain rate, a jury saw fit to award only about half the sum due. Coke declared that “there may be divers reasons why in equity they ought not to give so much damage as this amount, for it seems here that the jurors are chancellors” in the matter of assessing damages, and entitled to use an uncontrolled discretion. He agreed, however, that if it had been an action of debt the plaintiff would have recovered in full.⁴ During the Commonwealth, there was the striking case of Wood v. Gunston in 1655, when the Upper Bench allowed a motion for a new trial when a jury had awarded unreasonably high damages in an action for slander (once again, an action on the case), against the direction of the court.⁵ There was certainly no authority for this; a Commonwealth precedent of course carried little weight after the Restoration, and it was a long time before juries lost their arbitrary power over damages.⁶

For a time the courts took refuge in the distinction between trials at nisi prius and trials at bar; the former being regarded as less solemn, the verdicts were liable to be set aside; but Lord Holt in Argent v. Darrell (1700)⁷ while admitting that new trials were often granted after verdicts at nisi prius, declared that “there never was a new trial after a trial at bar in ejectment”. By 1757 Lord Mansfield was able to say in Bright v. Eynon⁸ that new trials were frequently granted, although there is no trace of it in the books, because the old reports do not give any account of decisions upon motions. This fortunate omission no doubt assisted matters greatly, and it soon became easy to believe that the practice of granting new trials was established.¹ Thus was a revolutionary reform quietly effected without leaving many traces in the books; as we have seen, the work was half done by 1700, and declared to be complete in 1757. It need hardly be said that all through mediaeval times down to our own day, a jury was always at liberty to find a special verdict by stating the facts (often at great length and drafted by counsel as an agreed statement of facts) as it found them, and leaving it to the court to determine whether this verdict was in law a determination for the plaintiff or the defendant.

From all this it is clear (in spite of Vaughan’s judgment in Bushel’s Case) that for practical purposes the jury depended very largely, if not entirely, upon the evidence placed before it in court. This was certainly true of the seventeenth century and probably true of a large part of the sixteenth century. The further question when jurors were excluded from using their own sources of information, is more difficult to answer. An indirect solution has been attempted, but the result is not conclusive.² Even within the last hundred years expressions are to be found suggesting that, at least in criminal cases, a jury was entitled to make use of its (by now, very exiguous) “general knowledge”.³ However, the survival of a theory is not always reconcilable with contemporary facts, and the principle of Bushel’s Case was no doubt felt to be politically desirable without necessarily endorsing all of Vaughan’s reasoning—which even for his own day may have seemed (like some of his other views) somewhat artificial.

Juries, in fact, came to rely on evidence offered by parties, and it was this circumstance which made necessary the development of a law of evidence; this will be discussed at a later stage.⁴