evidence and the demeanour of the witnesses. But his opinion
is less regarded now that new trials are granted by the court of
appeal than under the old system when the new trial was sought
in the court of which he was a member.
The appellate court will not upset a verdict when there is substantial and conflicting evidence before the jury. In such cases it is for the jury to say which side is to be believed, and the court will not interfere with the verdict. To upset a verdict on the ground that there is no evidence to go to the jury implies that the judge at the trial ought to have withdrawn the case from the jury. Under modern procedure, in order to avoid the risk of a new trial, it is not uncommon to take the verdict of a jury on the hypothesis that there was evidence for their consideration, and to leave the unsuccessful party to apply for judgment notwithstanding the verdict. The question whether there was any evidence proper to be submitted to the jury arises oftenest in cases involving an imputation of negligence—e.g. in an action of damages against a railway company for injuries sustained in a collision. Juries are somewhat ready to infer negligence, and the court has to say whether, on the facts proved, there was any evidence of negligence by the defendant. This is by no means the same thing as saying whether, in the opinion of the court, there was negligence. The court may be of opinion that on the facts there was none, yet the facts themselves may be of such a nature as to be evidence of negligence to go before a jury. When the facts proved are such that a reasonable man might have come to the conclusion that there was negligence, then, although the court would not have come to the same conclusion, it must admit that there is evidence to go before the jury. This statement indicates existing practice but scarcely determines what relation between the facts proved and the conclusion to be established is necessary to make the facts evidence from which a jury may infer the conclusion. The true explanation is to be found in the principle of relevancy. Any fact which is relevant to the issue constitutes evidence to go before the jury, and any fact, roughly speaking, is relevant between which and the fact to be proved there may be a connexion as cause and effect (see Evidence). As regards damages the court has always had wide powers, as damages are often a question of law. But when the amount of the damages awarded by a jury is challenged as excessive or inadequate, the appellate court, if it considers the amount unreasonably large or unreasonably small, must order a new trial unless both parties consent to a reduction or increase of the damages to a figure fixed by the court; see Watt v. Watt (1905), App. Cas. 115.
Value of Jury System.—The value of the jury in past history as a bulwark against aggression by the Crown or executive cannot be over-rated, but the working of the institution has not escaped criticism. Its use protracts civil trials. The jurors are usually unwilling and are insufficiently remunerated; and jury trials in civil cases often drag out much longer and at greater expense than trials by a judge alone, and the proceedings are occasionally rendered ineffective by the failure of the jurors to agree.
There is much force in the arguments of Bentham and others against the need of unanimity—the application of pressure to force conviction on the minds of jurors, the indifference to veracity which the concurrence of unconvinced minds must produce in the public mind, the probability that jurors will disagree and trials be rendered abortive, and the absence of any reasonable security in the unanimous verdict that would not exist in the verdict of a majority. All this is undeniably true, but disagreements are happily not frequent, and whatever may happen in the jury room no compulsion is now used by the court to induce agreement.
But, apart from any incidental defects, it may be doubted whether, as an instrument for the investigation of truth, the jury system deserves all the encomiums which have been passed upon it. In criminal cases, especially of the graver kind, it is perhaps the best tribunal that could be devised. There the element of moral doubt enters largely into the consideration of the case, and that can best be measured by a popular tribunal. Opinion in England has hitherto been against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility, and the Criminal Appeal Act 1907, which constituted the court of criminal appeal, recognized the responsibility by requiring a quorum of three judges in order to constitute a court. The same act, by permitting an appeal to persons convicted on indictment both on questions of fact and of law, removed to a great extent any possibility of error by a jury. But in civil causes, where the issue must be determined one way or the other on the balance of probabilities, a single judge would probably be a better tribunal than the present combination of judge and jury. Even if it be assumed that he would on the whole come to the same conclusion as a jury deliberating under his directions, he would come to it more quickly. Time would be saved in taking evidence, summing up would be unnecessary, and the addresses of counsel would inevitably be shortened and concentrated on the real points at issue. Modern legislation and practice in England have very much reduced the use of the jury both in civil and criminal cases.
In the county courts trial by jury is the exception and not the rule. In the court of chancery and the admiralty court it was never used. Under the Judicature Acts many cases which in the courts of common law would have been tried with a jury are now tried before a judge alone, or (rarely) with assessors, or before an official referee. Indeed cynics say that a jury is insisted on chiefly in cases when a jury, from prejudice or other causes, is likely to be more favourable than a judge alone.
In criminal cases, by reason of the enormous number of offences punishable on summary conviction and of the provisions made for trying certain indictable offences summarily if the offender is young or elects for summary trial, juries are less called on in proportion to the number of offences committed than was the practice in former years.
Scotland.—According to the Regiam Majestatem, which is identical with the treatise of Glanvill on the law of England (but whether the original or only a copy of that work is disputed), trial by jury existed in Scotland for civil and criminal cases from as early a date as in England, and there is reason to believe that at all events the system became established at a very early date. Its history was very different from that of the English jury system. There was no grand jury under Scots law, but it was introduced in 1708 for the purpose of high treason (7 Anne c. 21). For the trial of criminal cases the petty jury is represented by the criminal “assize.” This jury has always consisted of fifteen persons and the jurors are chosen by ballot by the clerk of the court from the list containing the names of the special and common jurors, five from the special, ten from the common. Prosecutor and accused each have five peremptory challenges, of which two only may be directed against the special jurors; but there is no limit to challenges for cause. The jury is not secluded during the trial except in capital cases or on special order of the court made proprio motu or on the application of prosecutor or accused. The verdict need not be unanimous, nor is enclosure a necessary preliminary to a majority verdict. It is returned viva voce by the chancellor or foreman, and entered on the record by the clerk of the court, and the entry read to the jury. Besides the verdicts of “guilty” and “not guilty,” a Scots jury may return a verdict of “not proven,” which has legally the same effect as not guilty in releasing the accused from further proceedings on the particular charge, but inflicts on him the stigma of moral guilt.
Jury trial in civil cases was at one time in general if not prevailing use, but was gradually superseded for most purposes on the institution of the Court of Session (1 Mackay, Ct. Sess. Pr. 33). In this, as in many other matters, Scots law and procedure tend to follow continental rather than insular models. The civil jury was reintroduced in 1815 (55 Geo. III. c. 42), mainly on account of the difficulties experienced by the House of Lords in dealing with questions of fact raised on Scottish appeals. At the outset a special court was instituted in the nature of a judicial commission to ascertain by means of a jury facts deemed relevant to the issues in a cause and sent for such determination at the discretion of the court in which the cause was pending. The process was analogous to the sending of an issue out of chancery for trial in a superior court of common law, or in a court of assize. In 1830 the jury court ceased to exist as a separate tribunal and was merged in the Court of Session. By legislation of 1819 and 1825 certain classes of cases were indicated as appropriate to be tried by a jury; but in 1850 the cases so to be tried were limited to actions for defamation and nuisance, or properly and in substance actions for damages, and under an act of 1866 even in these cases the jury may be dispensed with by consent of parties.
