TRIAL, in law, the examination of a cause according to the laws of the land before a proper judge; or it is the manner and order observed in the hearing and determining of causes. See SUIT, WRIT, PROCESS, PLEADINGS, ISSUE (in APPENDIX), PROSECUTION, ARRAIGNMENT, and PLEA.
Trials are either civil or criminal.
I. Civil Trials. The species of trials in civil cases are seven: by record; by inspection, or examination; by certificate; by witnesses; by wager of battle; by wager of law; and by jury. The first six are only had in certain special or exceptional cases, where the trial by jury would not be so proper or effectual: See them explained under their respective titles. The nature of the last, that principal criterion of truth in the law of England, shall be explained in this article.
The method of trial by jury, called also the trial per pais, or by the country, hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. Its use, though for a time greatly impaired and shaken by the introduction of the Norman trial by battle, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it: and in magna charta it is more than once insisted on as the principal bulwark of our liberties.
Trials by jury in civil causes are of two kinds; extraordinary and ordinary.
1. The first species of extraordinary trial by jury is that of the grand assize, which was instituted by king Henry II. in parliament, by way of alternative offered to the choice of the tenant or defendant in a writ of right, instead of the barbarous and unchristian custom of duelling. For this purpose a writ de magna assisa eligenda is directed to the sheriff, to return four knights, who are to elect and choose 12 others to be joined with them; and these all together form the grand assize,
or great jury, which is to try the matter of right, and must now consist of 16 jurors. Another species of extraordinary juries, is the jury to try an attainder; which is a process commenced against a former jury for bringing a false verdict. See the article ATTAINT.
2. With regard to the ordinary trial by jury in civil cases, the most clear and perspicuous way of treating it will be by following the order and course of the proceedings themselves.
When therefore an issue is joined by these words, "And this the said A prays may be inquired of by the country;" or, "And of this he puts himself upon the country," and the said B does the like;" the court awards a writ of venire facias upon the roll or record, commanding the sheriff "that he cause to come here, on such a day, twelve free and lawful men, liberes et legales homines, of the body of his county, by whom the truth of the matter may be better known, and who are neither of kin to the aforesaid A nor the aforesaid B, to recognize the truth of the issue between the said parties." And such writ is accordingly issued to the sheriff. It is made returnable on the last return of the same term wherein issue is joined, viz. hilary or trinity terms; which, from the making up the issues therein, are usually called issuable terms. And he returns the names of the jurors in a panel (a little pane or oblong piece of parchment) annexed to the writ. This jury is not summoned, and therefore not appearing at the day must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpus juratorum, and in the king's bench a distingas, commanding the sheriff to have their bodies, or to distrain them by their lands and goods, that they may appear upon the day appointed. The entry therefore on the roll of record is, "That the jury is respited, thro' defect of the jurors, till the first day of the next term, then to appear at Westminster; unless before that time, viz. on Wednesday the fourth of March, the justices of our lord the king appointed to take assizes in that county, shall have come to Oxford, that is, to the place assigned for holding the assize. Therefore the sheriff is commanded to have their bodies at Westminster on the said first day of next term, or before the said justices of assize, if before that time they come to Oxford, viz. on the fourth of March aforesaid." And as the judges are sure to come and open the circuit-commissions on the day mentioned in the writ, the sheriff returns and summons this jury to appear at the assizes; and there the trial is had before the justices of assize and nisi prius among whom (as hath been said *) are usually two of the judges of the courts at Westminster, the whole kingdom being divided into six circuits for this purpose. And thus we may observe, that the trial of common issues at nisi prius, was in its original only a collateral incident to the original business of the justices of assize; though now, by the various revolutions of practice, it is become their principal civil employment; hardly any thing remaining in use of the real assizes but the name.
If the sheriff be not an indifferent person, as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury; but the venire shall be directed to the coroners, who in this, as in many other instances,
Trial. are the substitutes of the sheriff to execute process when he is deemed an improper person. If any exception lies to the coroners, the venire shall be directed to two clerks of the court, or two persons of the county named by the court, and sworn. And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array.
When the general day of trial is fixed, the plaintiff or his attorney must bring down the record to the assizes, and enter it with the proper officer in order to its being called on in course.
These steps being taken, and the cause called on in court, the record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive process, the writ of habeas corpora, or disrings, with the panel of jurors annexed, to the judge's officer in court.
As the jurors appear when called, they shall be sworn, unless challenged by either party. See the article CHALLENGE.
If by means of challenges, or other cause, a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. See the article TALES.
When a sufficient number of persons impanelled, or tales-men appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated "the jury," jurata, and "jurors," sc. juratores.
The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impanelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue. For the issue is said to lie, and proof is always first required, upon that side which affirms the matter in question: in which our law agrees with the civil, ei incumbit probatio qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit. The opening counsel briefly informs them what has been transacted in the court above; the parties, the nature of the action, the declaration, the plea, replication, and other proceedings; and lastly, upon what point the issue is joined, which is there sent down to be determined. Instead of which, formerly the whole record and process of the pleadings were read to them in English by the court, and the matter of issue clearly explained to their capacities. The nature of the case, and the evidence intended to be produced, are next laid before them by counsel also on the same side; and when their evidence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence; and then the party which began is heard by way of reply.
When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and
giving them his opinion in matters of law arising upon that evidence.
The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict; and in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For by the golden bulle of the empire, if, after the congress is opened, the electors delay the election of a king of the Romans for 30 days, they shall be fed only with bread and water till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is fineable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their agents after they are gone from the bar, or if they receive any fresh evidence in private, or if to prevent disputes they cast lots for whom they shall find, any of these circumstances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart. This necessity of a total unanimity seems to be peculiar to our own constitution; or at least, in the nemba or jury of the ancient Goths, there was required (even in criminal cases) only the consent of the major part; and in case of an equality, the defendant was held to be acquitted.
When they are all unanimously agreed, the jury return back to the bar; and before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement to which by the old law he is liable, in case he fails in his suit, as a punishment for his false claim. To be amerced, or a merce, is to be at the king's mercy with regard to the fine to be imposed; in misericordia domini regis pro falso clamore suo. The amercement is disputed, but the form still continues; and if the plaintiff does not appear no verdict can be given; but the plaintiff is said to be nonsuit, non sequitur clamorem suum. Therefore it is usual for a plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited, or withdraw himself: whereupon the crier is ordered to call the plaintiff; and if neither he, nor any body for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason of this practice is, that a nonsuit is more eligible for the plaintiff than a verdict against him: for after a nonsuit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, and judgment consequent thereupon, he is for ever barred from attacking the defendant upon the same ground of complaint. But in case the plaintiff appears, the jury by their foreman deliver in their verdict. See the article VERDICT.
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 ever has been, and it is hoped ever will be, looked upon as the glory of the English law. It is certainly 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 person, but by the unanimous consent of 12 of his neighbours and equals.
The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that 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 spite 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 established 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 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 more artfully by 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 12 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.
II. Criminal Trials. The several methods of trial and conviction of offenders, established by the laws of England, were formerly more numerous than at present, through the superstition of our Saxon ancestors; who, like other northern nations, were extremely addicted to divination: a character which Tacitus observes of the ancient Germans. They therefore invented a considerable number of methods of purgation or trial, to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would always interpose miraculously to vindicate the guiltless: as, 1. By ordeal; 2. By cosned; 3. By battel. See these articles.
4. A fourth method is that by the peers of Great Britain, in the Court of PARLIAMENT; or the Court of the Lord High STEWART, when a peer is capitally indicted; for in case of an appeal, a peer shall be tried by jury. This differs little from the trial per patriam, or by jury; except that the peers need not all agree in their verdict; and except also, that no special verdict can be given in the trial of a peer: because the lords of parliament, or the lord high steward (if the trial be had in his court) are judges sufficiently competent of the law that may arise from the fact: but the greater number, consisting of 12 at the least, will conclude, and bind the minority.
The trial by jury, or the country, per patriam, is also that trial by the peers of every Briton, which, as the great bulwark of his liberties, is secured to him by the great charter: nullus liber homo capitatur, vel imprisoneatur, aut exulet, aut aliquo alio modo destruat, nisi per legale judicium parium suorum, vel per legem terrae.
When therefore a prisoner on his ARRAIGNMENT has pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de viceneto; that is, freeholders without just exception, and of the visne or neighbourhood; which is interpreted to be of the county where the fact is committed. If the proceedings are before the court of king's bench, there is time allowed between the arraignment and the trial, for a jury to be impanelled by writ of venire facias to the sheriff, as in civil causes: and the trial in case of a misdemeanor is had at nisi prius, unless it be of such consequence as to merit a trial at bar; which is always invariably had when the prisoner is tried for any capital offence. But, before commissioners of oyer terminer and goal-delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of 48 jurors, to try all felons that may be called upon their trial at that session; and therefore it is there usual to try all felons immediately or soon after their arraignment. But it is not customary, nor agreeable to the general course of proceedings, unless by consent of parties, to try persons indicted of smaller misdemeanors at the same court in which they have pleaded not guilty, or traversed the indictment. But they usually give security to the court to appear at the next assizes or session, and then and there to try the traverse, giving notice to the professor of the same.
In cases of high-treason, whereby corruption of blood may ensue (except treason in counterfeiting the king's coin or seals) or misprision of such treason, it is enacted by statute 7 W. III. c. 3. first, that no person shall be tried for any such treason, except an attempt to assassinate the king, unless the indictment be found within three years after the offence committed: next, that the prisoner shall have a copy of the indictment, (which includes the caption) but not the names of the witnesses, five days at least before the trial, that is, upon the true construction of the act, before his arraignment; for then is his time to take any exceptions thereto, by way of plea or demurrer: thirdly, that he shall also have a copy of the panel of jurors two days before his trial: and, lastly, that he shall have the same compulsive process to bring in his witnesses for him.
him, as was usual to compel their appearance against him. And by statute 7 Ann. c. 21. (which did not take place till after the decease of the late pretender) all persons indicted for high-treason, or misprision thereof, shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impanelled, with their professions and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses, the better to prepare him to make his challenges and defence. And no person indicted for felony is, or (as the law stands) ever can be, entitled to such copies before the time of his trial.
When the trial is called on, the jurors are to be sworn as they appear, to the number of 12, unless they are challenged by the party. See the article CHALLENGE.
If by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales may be awarded as in civil causes, till the number of 12 is sworn, "well and truly to try, and true deliverance make, between our sovereign lord the king and the prisoner whom they have in charge; and a true verdict to give, according to their evidence." See TALES.
When the jury is sworn, if it be a cause of any consequence, the INDICTMENT is usually opened, and the evidence marshalled, examined, and enforced by the counsel for the crown, or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life a man, which yet is allowed him in prosecutions for every petty trespass? Nor indeed is it, strictly speaking, a part of our ancient law: for the Mirror, having observed the necessity of counsel in civil suits, "who know how to forward and defend the cause by the rules of law and customs of the realm;" immediately afterwards subjoins, "and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes." And, to say the truth, the judges themselves are so sensible of this defect in our modern practice, that they seldom scruple to allow a prisoner counsel to stand by him at the bar, and to instruct him what questions to ask, or even to ask questions for him, with regard to matters of fact; for as to matters of law arising on the trial, they are entitled to the assistance of counsel. But still this is a matter of too much importance to be left to the good pleasure of any judge, and is worthy the interposition of the legislature; which has shown its inclination to indulge prisoners with this reasonable assistance, by enacting, in statute 7 W. III. c. 3. that persons indicted for such high-treason as works a corruption of the blood or misprision thereof, (except treason in counterfeiting the king's coins or seals), may make their
full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge; and this indulgence, by statute 20 Geo. II. c. 30. is extended to parliamentary impeachments for high-treason, which were excepted in the former act.
When the evidence on both sides is closed, the jury cannot be discharged till they have given in their verdict. If they find the prisoner not guilty, he is then for ever quit and discharged of the accusation; except he be appealed of felony within the time limited by law. And upon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the goaler. But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted. See the article CONVICTION; and, subsequent thereto, the articles JUDGMENT, ATTAINDER, FORFEITURE, EXECUTION, also Benefit of Clergy, Reprieve, Pardon.