1911 Encyclopædia Britannica/Trial

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5488161911 Encyclopædia Britannica, Volume 27 — TrialWilliam Feilden Craies

TRIAL, in English law, the hearing by a court of first instance of the issues of fact and law involved in a civil or criminal cause. The term is inappropriate to rehearing by an appellate court. Trial follows upon the completion of the steps necessary to bring the parties before the court and to adjust the issues upon which the court is to adjudicate, which may be summed up in the term pleading (q.v.). In England the trial is usually in open court, and it is rare to try cases in camera, or to attempt to exclude the public from the hearing. The essential part of the trial is that there should be full opportunity to both sides for evidence and argument on the questions in dispute. At present in England, as distinguished from the rest of Europe, the evidence is ordinarily taken viva voce in court, and affidavits and depositions are sparingly accepted, whereas under the XXVII. 9 continental system the bulk of the proofs in civil cases are reduced to writing before the hearing.

The modes of trial have altered with legal development in English as in Roman law (see Action). Many forms of trial, notably those by ordeal, by wager of battle or of law (see Ordeal and Wager), and by grand assize, have become obsolete, and new forms have been created by legislation in order to meet altered circumstances of society. Up to a very recent date the tendency of the Roman and English systems was in opposite directions. In the former and in systems founded on it, such as the Scottish and French, trial by the judge became the rule, in the latter trial by judge and jury. In England the method of trial of issues of fact arising under the common law was by jury and a bench of judges. In truth the trials were the sittings of commissioners sent to inquire and report with the aid of the neighbourhood on questions of crime and civil wrongs in a county; the practice is summed up in the old phrase ad quaestionem juris judices respondeant, ad quaestionem facti juratores. In courts which administered equity or derived their law or procedure from the civil or canon law no jury was used, and the judges determined both law and fact. The system of trial before a full bench of judges even with a jury is now used on the European continent, but has been superseded in England by trial before a single judge with a jury except in the rare cases of trial at bar. This latter mode of trial is a survival of the mode universal in the superior courts before the writ of nisi Arius, and is now only used in the king’s bench division, when claimed by the Crown as of right or in cases of unusual importance and difficulty. Recent instances are the trial in 1904 of Arthur Lynch for treason in South Africa, and in 1905 of questions raised on a petition of right in respect of a claim to make the Crown responsible on the conquest of the Transvaal for acts of the Transvaal government before or during the war.

The necessity for trial by jury has been removed in many cases by legislation and rules of court (see Jury; Summary Jurisdiction), and the present English practice is summarized in the following statement.

In the High Court of Justice in England and Ireland several modes of trial are now used:

1. Trial by judge with a jury used in the king’s bench division and in probate and matrimonial cases. There is a right to have a jury as a matter of course in actions of defamation, false imprisonment, malicious prosecution, seduction and breach of promise of marriage. In other cases, subject to exceptions to be noted, a jury can be obtained on the application of either party.

2. Trial by a judge without a jury is invariable in the chancery division and now common in the other divisions. Cases in the chancery division are not tried with a jury unless a special order is made (Ord. 36, r. 3); and the High Court in cases in which trial without jury could be ordered without consent (1875) still retains the power of so trying them, and has also acquired power to direct trial without a jury of any issue requiring prolonged examination of documents or accounts or scientific or local investigation.

3. Trial with assessors, usual in admiralty cases (the assessors being nautical) but rare in other divisions.

4. Trial by an official referee in certain cases involving much detail (R.S.C.O. 36). In the county court the ordi:iary mode of trial is by the judge alone, but a jury of eight is allowed in certain cases on application, and in the admiralty jurisdiction marine assessors can be called in. In other local civil courts the trial is often by jury, as in the mayor’s court of London, sometimes without, as in the vice-chancellor’s court of the university of Oxford. In all civil cases the parties can by a proper submission have a trial before an arbitrator selected by or for them. As regards criminal cases the right to trial by due process of law before condemnation is given by art. 29 of Magna Carta; and the trial must be by jury unless a statute otherwise provides (see Court-Martial; Summary Jurisdiction). The parties may be represented by lawyers, solicitor or counsel or both, according to the court, in county courts by accredited lay agents, or may conduct their case in person. The trial is carried on by stating to the court the pleadings if any and by opening the plaintiff’s case. This is followed by the evidence of the witnesses, who are sworn and examined and cross-examined. On the completion of the plaintiff’s case and evidence, the defendant’s case is stated and evidence adduced in support of it. The plaintiff or his lawyer has as a rule the reply or last word, though in some courts, described as single speech courts, no reply is given. At the conclusion the judge sums up the law and facts of the case to the jury, if there is one, and their verdict is returned, or if there is no jury gives judgment, stating his conclusions on the law and facts involved.

There remain certain modes of trial not obsolete but rarely used. Such are impeachment of the House of Commons before the House of Lords; and in the case of a charge of treason or felony by a person having privilege of peerage, trial on indictment before the House of Lords, or in vacation before the court of the lord high steward. Trials by certificate, by inspection and by record, are obsolete.

The decisions on a trial at first instance are reviewed by appeal (q.v.), or in trial cases heard before a jury by application for a new trial, where the judge has not directed the jury correctly as to the law or has permitted them to consider inadmissible evidence, or the jurors have in their verdict acted without evidence or against the weight, i.e. the quality not the quantity of the evidence. Under the Criminal Appeal Act 1907 the decisions in criminal trials on indictment, whether on matters of law or of fact or on mixed questions of law or fact, are reviewable by the court of criminal appeal; but that court has no power to order a retrial of the case before a jury.

Scotland.—Jury trial was introduced into Scotland for certain classes of civil cases in the 19th century but is not much used. In criminal cases it is used where summary jurisdiction has not been conferred.

Ireland.—The law of Ireland as to trials is in substance the same as in England, except as to appeals in criminal cases.

United States.—In the United States the system of trial is that of the English common law as varied by Federal and state legislation.  (W. F. C.)