VERDICT, (Vere dictum), is the answer of the jury given to the court concerning the matter of fact, in any case civil or criminal, committed by the court to their trial and examination. See LAW, No clxxxvi. 51.
In the law of England, a verdict is either privy or public. A privy verdict is either when the judge hath left or adjourned the court; and the jury, being agreed in order to be delivered from their confinement, obtain liberty to give their verdict privy to the judge out of court: which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from their privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged. But the only effectual and legal verdict is the public verdict; in which they openly declare to have found the issue for the plaintiff, or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury upon which the action is brought.
Sometimes, if there arises in the case any difficult matter of law, the jury, for the sake of better information, and to avoid the danger of having their verdict attainted, will find a special verdict; which is grounded on the statute Westm. 2. 13 Edw. I. c. 30. § 2. And herein they state the naked facts, as they find them to be proved, and pray the advice of the court thereon; concluding conditionally, that if upon the whole matter the court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then for the defendant. This is entered at length on the record, and afterwards argued and determined in the court at Westminster, from whence the issue came to be tried.
Another method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge or the court above, on a special case stated by the counsel on both sides with regard to a matter of law: which has this advantage over a special verdict, that it is attended with much less expence, and obtains a much speedier decision; the postea being stayed in the hands of the officer of nisi prius till the question is determined, and the verdict is then entered for the plaintiff or defendant as the case may happen. But as nothing appears upon the record but the general verdict, the parties are precluded hereby from the bene-
fit of a writ of error, if dissatisfied with the judgment of the court or judge upon the point of law. Which makes it a thing to be wished, that a method could be devised of either lessening the expence of special verdicts, or else of entering the case at length upon the posse. But in both these instances the jury may, if they think proper, take upon themselves to determine, at their own hazard, the complicated question of fact and law; and, without either special verdict or special case, may find a verdict absolutely either for the plaintiff or defendant.
In criminal cases, the jury deliver in their verdict with the same forms as in civil causes: only they cannot, in a criminal case which touches life or member, give a privy verdict. But an open verdict may be either general, guilty, or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proper so to hazard a breach of their oaths: and, if their verdict be notoriously wrong, they may be punished and the verdict set aside by attainder at the suit of the king; but not at the suit of the prisoner. But the practice, heretofore in use, of finding, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, unconstitutional, and illegal; and is treated as such by Sir Thomas Smith 200 years ago; who accounted "such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England." For, as Sir Matthew Hale well observes, it would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions:—unhappy also for the prisoner; for if the judge's opinion must rule the verdict, the trial by jury would be useless. Yet in many instances, where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king's bench; for in such case, as hath been said, it cannot be set right by attainder. But there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first.