Page:Harvard Law Review Volume 5.djvu/402

386 386 HAR YARD LA W RE VIE W. in that case (Wood v. Gunston), who "said that after a verdict the partiality of the jury ought not to be questioned, nor is there any precedent for it in our books of the law." Lord Mansfield added (p. 394) : " The reason why this matter cannot be traced farther back is, ' that the old Report Books do not give any accounts of determinations made by the court upon motions.' " In support of what he says, Lord Mansfield relies on the language of Glynne, C.J., in Wood v. Gunston : " It is frequent in our Books for the Court to take notice of miscarriages of juries and to grant new trials upon them." But it seems true that the change came about not long before Wood v. Gunston. In 1648 in Slade's Case (Style, 138), judgment had been stayed upon a verdict, on a certificate from the judge presiding at the trial, who certified that "the verdict passed against his opinion." A motion was now made for judgment; but "Hales of counsel with the defendant prayed that this judgment might be arrested, and that there might be a new trial, for that it hath been done heretofore in like cases." x Roll, J., " It ought not to be stayed, though it have been done in the Common Pleas, for it was too arbitrary for them to do it, and you may have your attaint against the jury, and there is no other remedy in law for you, but it were good to advise the party to suffer a new trial for better satisfaction." We may take it, then that in the early part of the seventeenth century the practice of supervising the verdicts of juries, much as it is now done, was introduced, or, at any rate, clearly recognized and established. 2 Now, as I have said, in order to enforce effectually the granting of new trials, it was important that the jury should disclose pub- licly what they knew, so that the Court could tell whether they really did go against evidence or not. The Courts acted accord- ingly. In 1650, in Bennett v. Hartford (Style, 233), it was laid down that a juror ought to state publicly in court on oath any informa- tion that he has, and not to give it in private to his companions. In 1656, 3 a barrister being returned of the jury, and "having been 1 Hales is probably Sir M. llali, wh> was s> called, an.l was then a leading barrister. only stirred up to granting new triars by the obsolescence of attaints, and the need of controlling juries, bit by the interference of Courts of Equity. In Martyn v. Jack- son (1674), on the motion to set aside a verdict on the parol affirmation of Hale, C.J. that it was against evidence, Twisden, J., and Wilde, J., refused a new trial. Rainsford, C.J, was for it : " Juries are wilful enough, and denying a new trial here will but send parties into the Chancery." 8 Duke v. Ventris, a trial at bar, Trials per Pais, c. 12 (8th ed. p. 258).
 * A very interesting fact should be noted here, that the Common Law Courts were not