Page:Harvard Law Review Volume 5.djvu/401

385 THE JURT AND ITS DEVELOPMENT. 385 nized in 1670, and continued to be allowed in the books well on into the next century, yet the enlarged practice in granting new trials, and the growth and development of it in the seventeenth and eighteenth centuries, was steadily transforming the old jury into the modern one ; and at last it was possible for the judges to lay it down for law that a jury cannot give a verdict upon their private knowl- edge. 1 (k.) Let me now run over a few of the cases relating to the new way of controlling the jury. The first reported case of the modern new trial is said (I suppose truly) to be that of Wood v. Gunston in 1655 in the "Upper Bench" (Style, 462). The jury, in an action for calling a man a traitor, had given fifteen hundred pounds damages ; a motion was made to set this aside as excessive, and give a new trial. It was granted after full debate; Glynne, C.J., saying, " If the Court do believe that the jury gave a verdict against their direction they may grant a new trial." It is probable, although this is the first case that got reported of allow- ing a new trial for the modern reasons, that it was not the first decided. Indeed, Holt, C.J., in 1699, says, in Argent v. Sir Mar- maduke Darrell (Salk. 648), where a new trial was moved for in a trial at bar, on the ground that the verdict was against evidence : "The reason of granting new trials upon verdicts against evidence at the assises is because they are subordinate trials appointed by the Statute West. II. c. 30. . . . And there have been new trials anciently, as appears from this, that it is a good challenge to the juror that he hath been a juror before in the same cause. But we must not make ourselves absolute judges of law and fact too; and there never was a new trial after a trial at bar, in ejectment," etc. And Lord Mansfield, in the valuable case of Bright v. Eynon 1 Burrow, 390 (1757), said : "It is not true 'that no new trials were granted before 1655 ;' as has been said from Style, 466." He was referring, apparently, to the argument of Serjeant Maynard, 1 " It remained," says Mr. Pike (Hist. Crime, ii. 368-9), " for Lord Ellenborough, in the year 1816, to lay clearly down the maxim that a judge who should tell jurors to con- sider as evidence their own acquaintance with matters in dispute would misdirect them. The true qualification for a juror has thus become exactly the reverse of that which it was when juries were first instituted. In order to give an impartial verdict, he should enter the box altogether uniformed on the issue which he will have to decide." Perhaps the effect of this case, which I take to be R. v. Sutton, 4 M. & S. 532, is overstated here. But this, at least, is true, that the Court here assumes the truth of this doctrine. See 3 Har. Law Rev. 300; McKinnon v. Bliss, 21 N. Y. p. 215.