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times are, that what is deposed in court, is absolutely false; but to this the judge is a stranger, and he knows no more of the fact than he hath learned in court, and perhaps by false depositions, and consequently knows nothing. 3. The jury may know the witnesses to be stigmatized and infamous, which may be unknown to the parties, and consequently to the court. 4. In many cases the jury are to have view necessarily, in many, by consent, for their better information; to this evidence likewise the judge is a stranger. 5. If they do follow his direction, they may be attainted, and the judgment reversed for doing that, which if they had not done, they should have been fined and imprisoned by the judge which is unreasonable. 6. If they do not follow his direction, and be therefore fined, yet they may be attainted, and so doubly punished by distinct judicatures for the same offence, which the common law admits not. 7. To what end is the jury to be returned out of the vicinage whence the cause of action ariseth? To what end must hundredors be of the jury, whom the law supposeth to have nearer knowledge of the fact than those of the vicinage in general? To what end are they challenged so scrupulously to the array and poll? To what end must they have such a certain freehold, and be probi & legales homines, and not of affinity with the parties concerned? To what end must they have in many cases the view, for their exacter information chiefly? To what end must they undergo the heavy punishment of the villanous judgment, if after all this they implicitly must give a verdict by the dictates and authority of another man, under pain of fines and imprisonment, when sworn to do it according to the best of their knowledge? A man cannot see by another's eye, nor hear by another's ear, no more can a man conclude or infer the thing to be resolved by another's understanding or reasoning; and though the verdict be right the jury give, yet they being not assured it is so from their own understanding, are forsworn, at least in foro conscientiae. 9. It is absurd a jury should be fined by the judge for not going against their evidence, when he who fineth knows not what it is; as where a jury find without evidence in court on either side. So if the jury find upon their knowledge, as the course is if the defendant plead solvit ad diem to a bond proved, and offers no proof. The jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea. And it is absurd to fine a jury for finding against their evidence, when the judge knows but part of

it; for the better and greater part of the evidence may be wholly unknown to him. [The jurors were discharged.]

WOOD V. GUNSTON, UPPER BENCH (1655) (Style, 466).

Wood brought an action upon the case against Gunston for speaking of scandalous words of him; and amongst other words, for calling him a Traytor, and obteyns a verdict against him at the Bar, wherein the jury gave 1500£ damages. Upon the supposition that the damages were excessive, and that the jury did favour the Plaintiff, the Defendant moved for a new tryal. But Sergeant Maynard opposed it, and said that after a verdict the partiality of the Jury ought not to be questioned, nor is there any Presidents for it in our Books of the Law, and it would be of dangerous consequence if it should be suffered, and the greatness of the damages given can be no cause for a new tryal, but if it were, the damages are not here excessive, if the words spoken be well considered, for they tend to take away the Plaintiff's estate, and his life. Windham on the other side pressed for a new tryal, and said it was a packed business, else there could not have been so great damages, and the Court hath power in extraordinary cases, such as this is, to grant a new tryal. Glyn, Chief Justice. It is in the discretion of the Court in some cases to grant a new tryal, but this must be a judicial, and not an arbitrary discretion and it is frequent in our Books for the Court to take notice of miscarriages of Juries, and to grant new tryals upon them, and it is for the people's benefit that it should be so, for a Jury may sometimes by indirect dealings be moved to side with one party and not be indifferent betwixt them, but it cannot be so intended of the Court; wherefore let there be a new tryal the next term, and the Defendant shall pay full costs, and the judgment to be upon this Verdict to stand for security to pay what shall be recovered upon the next verdict.

HIXT V. GOATS, KING'S BENCH (1615) (1 Rolle, 257.)

Sir Baptist Hixt had judgment in the Common Pleas against Goats and Fleetwood, and now on writ of error it was assigned for error that the convenant alleged was that whereas a bargain was made for certain land between the plaintiff and defendants, the defendant covenanted that if there were not so many acres upon the measure as the defendant had said to the plaintiff that the land sold amounted to, that he would repay 11 l. for each acre which lacked of the number, and alleged that upon the measure so many

acres in certain were lacking as amounted at II . an acre to 700 l., and the issue was whether they were lacking, and the jury found for the plaintiff and gave 400 l. damages. Croke (of counsel for plaintiff in error): It seems that this issue is repugnant, for of necessity if so many acres were lacking as the plaintiff alleged, they ought to find 700 I. damages, and if they do not find that so many are lacking, the verdict ought not to be found against the plaintiff. Coke (C. J.): It seems to be good enough, for 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, and it seems such verdict is good in an action on the case because only damages are to be recovered, but it is otherwise where a debt is to be recovered, and judgment was affirmed by the court as to this point. (Translated from the Law-French original.)

RAVENCROFT V. EYLES, COMMON PLEAS (1766). (2 Wilson, 294.) Extract from the opinion of Wilmot, C. J.

The quantum of damages is nothing to the purpose, for if the jury had power in this case to give damages, we must now take it that they have done right; and I am of the opinion that the jury were not confined to give the exact damages in the final judgment, but had a power and discretion to assess what damages they thought proper, for this being an action upon the case, the damages were totally uncertain and at large.

[This was an action against a sheriff for permitting an imprisoned debtor to escape, so that the plaintiff lost the amount of his judgment against the debtor.]

ALDER V. KEIGHLEY, EXCHEQUER OF PLEAS (1846). (15 Meeson & Welsby, 117.)

The learned judge in summing up, directed the jury that the assignees

were entitled to recover the 600 l. minus

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the 100 l. and the discount . . . Pollock. C. B. The question is, what was the contract, and was it broken by the defendant? No doubt all questions of damages, are, strictly speaking, for the jury; and however clear and plain may be the rule of law on which the damages are to be found, the act of finding is for them. But there are certain established rules according to which they ought to find; and here there is a clear rule-that the amount which would have been received if the contract had been kept is the measure of the damage if the contract is broken.

SEDGWICK, DAMAGES, 201-2. (1 Ed. 1847.)

It is in truth but slowly, and at comparatively a recent period, that the jury has relinquished its control over even actions of contract, and that any approach has been made to a fixed and legal measure of damage. But by degrees the salutary principle has been recognized, and it is now well settled, that in all actions of contract and in all cases of tort where no evil motive is charged, the amount of compensation is to be regulated by the direction of the court, and the jury cannot substitute their vague and arbitrary discretion for the rules which the law lays down.

(g) The Supremacy of Law.


Two features have at all times' since the Norman Conquest characterized the political institutions of England.

The first of these features is the omnipotence or undisputed supremacy throughout the whole country of the central government. This authority of the state or the nation was during the earlier periods of our history represented by the power of the Crown. The King was the source of law and the maintainer of order. The maxim of the Courts, tout fuit in luy et vient de lui al commencement, was originally the expression of an actual and undoubted fact. This royal supremacy has now passed into that sovereignty of Parliament which has formed the main subject of the foregoing chapters.

The second of these features, which is closely connected with the first, is the rulé or supremacy of law. This peculiarity of our polity is well expressed in the old saw of the Courts, "La ley est le plus haute inheritance, que le roy ad; car par la ley il meme et toutes ses sujets sont rules, et si la ley ne fuit, nul roi, et nul inheritance sera."

In England the idea of legal equality, or of the universal subjection of all classes to one law administrated by the ordinary Courts has been pushed to its utmost limit. With us every official from the Prime Minister down to a constable or a collector of taxes is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their

lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, are as responsible for any act which the law does not authorize as is any private and unofficial person. Officials, such for example as soldiers or clergymen of the Established Church, are, it is true, in England as elsewhere, subject to laws which do not affect the rest of the nation, and are in some instances amenable to tribunals which have no jurisdiction over their fellow-countrymen; officials, that is to say, are to a certain extent governed under what may be termed official law. But this fact is in no way inconsistent with the principle that all men are in England subject to the law of the realm; for though a soldier or a clergyman incurs from his position legal liabilities from which other men are exempt, he does not (speaking generally) escape thereby from the duties of an ordinary citizen.

An Englishman naturally imagines that the rule of law (in the sense in which we are now using the term) is a trait common to all civilized societies. But this supposition is erroneous. Most European nations had indeed, by the end of the eighteenth century, passed through that stage of development (from which England emerged before the end of the sixteenth century) when nobles, priests and others could defy the law. But it is even now far from universally, true that in continental countries all persons are subject to one and the same law, or that the Courts are supreme throughout the state. If we take France as a type of continental state, we may assert, with substantial accuracy, that officials, under which word should be included all persons in public service, are in their official capacity, protected from the ordinary law of the land, exempted from the jurisdiction of the ordinary tribunals, and subject in many respects only to official law administered by offi

cial bodies.

MAGNA CARTA (1215, reissued in 1216, 1217, 1225).

Cap. XIV. A free man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; and a merchant likewise, saving to him his merchandise; and any other's villein than ours shall be likewise amerced, saving his wainage, if he fall into our mercy. And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. Earls and barons shall not be amerced but by their peers, and after the manner of their offence. No man of the church shall be amerced

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