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the earliest case in which the modern doctrine was mooted seems to have been that of Slade, before the King's Bench in 1648.1 For, though there the alleged ground of the motion was the judge's certificate that "the case passed against his opinion," there can be little doubt that the basis of his lordship's dissatisfaction was the insufficiency of the evidence. And though in that case the Court declined to order a new trial merely on the judge's certificate, the defendant (against whom the verdict had gone) was given leave to move again within four days after the postea had been brought in. So it looks as though, on the eve of the Civil War, the question was merely one of form. But the Civil War threw back discussion of the matter; and we must wait nearly a century before the promise of Slade's Case is realised.

We are, however, certainly hot on the scent when we find Pratt C.J., in a case of 1724,2 distinguishing between granting a new trial on the ground of want of evidence and on the ground of the verdict being against the evidence, and referring to an earlier case (unhappily not reported) of Tilley v. Roberts,3 in which the issue was compos vel non, and, apparently, the verdict was set aside for want of evidence. And when we find the judges, slightly later, relying upon the purely technical argument that an action in ejectment is not final, as a ground for refusing a new trial, we may reasonably suspect that the modern doctrine is becoming clear. And, in fact, if we are to name a precise date for the birth of the modern rule, we may, perhaps, give the year 1757, when the great Lord Mansfield, and his colleagues of the King's Bench, in Bright v. Eynon,5 laid it down that, in all

1 Style, 138.

2 Musgrave v. Nevinson, 2 Ld. Raym. 1360.

3 The distinction between a trial at bar and a trial at Nisi Prius was also taken.

Dormer v. Parkhurst (1738) Andrews, 315. The point is as old as Sir John Holt's time (Argent v. Darrell (1689) 2 Salk. 648).

5 Burrow, 390.

civil cases, where there has been an apparent miscarriage of justice owing to the failure of the jury to apprehend the true effect of the evidence, a new trial will be ordered. The practice of hearing motions. for new trials in banc, which lasted until quite recent times, still tended, no doubt, to lay excessive stress upon the personal opinion of the trial judge. But when, in the year 1890,1 the jurisdiction to order a new trial was transferred to the Court of Appeal, the last remaining shred of medieval husk was torn away; and the kernel of scientific truth, which had been slowly maturing for two and a half centuries, became visible to the naked eye.

If, in conclusion, we may speculate on the psychological causes which lay behind the appearance of the new doctrine at the beginning of the eighteenth century, we need hardly look far. The triumph of the Baconian philosophy had given birth to the modern scientific spirit, officially embodied in the foundation of the Royal Society in the mid-seventeenth century. The new spirit found itself opposed everywhere in the legal world by that older spirit which regards justice as too high an ideal to be attained by purely human effort. Doubtless the verdict of a jury was a less direct manifestation of the divine justice than the verdict of the ordeal which it superseded, or even of the judicial combat which it was in course of superseding. Nevertheless, so long as the jury were allowed to speak "of their own knowledge," there was a thaumaturgic element about it; and the spirit of the Common Law was conservative. As usual, Equity was more sensitive to the influence of the Zeitgeist; and it is well worth noting, that Chancery is said2 to have granted injunctions against the enforcement of oppressive verdicts some time

1 By the Judicature Act of that year (s. 1).

Blackstone, III. 388. And see the remarks of Mansfield, C. J., in Bright v. Eynon (1757) 1 Burr., on p. 396.

before the Common Law Courts could bring themselves to set them aside. But the spirit which was shortly to convert the rural England of 1750 into the industrial England of 1850 was not to be denied; and the rule we are discussing was one of its most signal triumphs in the sphere of judicature. It may be that it accords ill with the scarlet robes and the wigs which adorn our Courts, with the oath which is still deemed to be an almost essential preliminary of a conviction for false testimony, with the trumpeters and sheriff's coach which herald the administration of justice in the provincial town. But, if the rationalist is wise, he will be content with essentials, bearing in mind that Justice deals with "all manner of people. There is not only sound common sense, but some philosophical satisfaction, in the reluctant admission of Parke, B., uttered so late as the year 1836,1 that it is impossible to prevent a jury, at any rate in a criminal case, making use of its "general knowledge."

1 R. v. Rosser (1836) 7 C. & P. 649.

The Assessment of Penalties in

Primitive Law



IN modern law almost the only principle which governs the assessment of damages for tort is that of compensation for the loss inflicted by the wrongdoer. The idea is that it is the business of the defendant to fill the gap he has made in the fortune of the plaintiff. Normally he does so by paying a sum of money, though this is neither logically necessary for the application of the idea of compensation nor, indeed, universal. The German code, for instance, lays down expressly that the primary liability of the defendant is not in money at all, but for the physical restoration of the hypothetical state of affairs which would have existed but for his act.1 It is only in case such physical restoration is impossible and in certain other definite circumstances that the person wronged can insist on a money payment. It is true also that Continental codes recognise that in some cases reparation can be exacted for "moral" damage, and that our own system takes items such as "pain and suffering" into account with great freedom, but here too the idea of compensation is uppermost. Money damages are given with the object of making the sum total of the plaintiff's happiness what it would have been if he had not suffered the injury. The pain he has suffered cannot be conjured out of existence, but he is given a sum of money in the hope that the joy he obtains 1 § 249. 2 §§ 249-251. 3 E.g. Swiss Law of Obligations, § 49.


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